text:
    A97A0681.
    A97A0682.
    JONES v. THE STATE. JONES v. THE STATE.
    (487 SE2d 56)
   McMurray, Presiding Judge.

Defendants Bernice Jones and Timothy James Jones were jointly tried before a jury on an indictment charging Timothy J. Jones with four counts of child molestation (Counts 1 through 3 and 11), three counts of aggravated child molestation (Counts 4 through 6), and three counts of aggravated sodomy (Counts 7 through 9) for sexual acts committed against his minor stepdaughter, B. D. (“the victim”). Defendant Bernice Jones, B. D.’s mother, was charged with two counts of child molestation (Counts 10 and 11).

The ten-year-old victim twice told her mother, defendant Bernice Jones, that her “daddy,” defendant Timothy James Jones, had been “messing” with her. Bernice Jones did not believe B. D. and “whipped” her. Thereafter, B. D. told her teacher about what was happening to her at home, initiating an interview with caseworkers from the Lanier County Department of Family & Children Services. In that interview, the victim displayed a precocious knowledge of anatomy and sexual activity in describing repeated acts of sexual battery, intercourse, and oral sodomy committed against her by defendant Timothy James Jones. These statements were repeated by B. D. to Clara Shaw, M.D., who performed a pelvic examination of the victim. Medical evidence showed “the internal labias [sic] were very red and irritated. The urethral meatus was grossly enlarged and extremely red and irritated. The introitus gaping for a small child to at least 2 cm. gapping [sic] open with no evidence of hymen.” According to Dr. Shaw, such “gaping opening], . . . you would not expect in normal children at ten years old.”

Laura Brown, B. D.’s teacher at Willacoochee Elementary, testified that B. D. approached her and said “ ‘Ms. Brown, I need to tell you something.’ . . . ‘My daddy has been messing with me. He has been doing things that are illegal.’ And then she [B. D.] started covering her face and just crying, and she would say it’s disgusting.” “She then said that her daddy takes her to his bedroom and makes her take off all of her clothes, and he gets on top of her, and he puts himself inside her. She said, ‘He puts himself inside me.’ ” Brown “went straight to [Principal] Michael Davis’ office and told him. . . . He called, DFACS, Department of Family and Children Services.” June Spivey, B. D.’s Social Service Specialist with the Atkinson County Department of Family & Children Services also related that “on one occasion her [B. D.’s] mother told her to take her clothes off and sent her into the father’s bedroom. When she entered the father’s bedroom, . . . she was told to get on top of [defendant Timothy James Jones] when he put his dick . . . into her privacy. According to [B. D.,] the mother later came in and told [B. D.] that it was her turn now and to get off. The child was being told or made to watch while Mr. and Mrs. Jones had sex.”

At the time of trial, B. D. was 11 years old. She testified that defendant Timothy James Jones “ma[d]e me [B. D.] have sex with him.” She also indicated that defendant touched her “breast area and the vaginal area,” by “put[ting] his mouth on [B. D.]” and put his penis inside her. She also indicated “the buttocks area on State’s exhibit No. 7, which is the back of a diagram of a girl.” Specifically, Timothy James Jones put his penis in B. D.’s rectum. B. D. also affirmed that her mother, defendant Bernice Jones saw defendant Timothy James Jones “do this.” Bernice Jones instructed B. D. to “show her what [B. D. and defendant Timothy James Jones were] doing in the middle of the night, and . . . when [B. D.] got in the room, she [defendant Bernice Jones] made [B. D.] take off [her] clothes and have sex with him [defendant Timothy James Jones].” When Bernice Jones told B. D. to show her “what [B. D.] and [her] stepdaddy [Timothy James Jones] was doing while she [Bernice Jones] was at work[, B. D.] showed her and she [Bernice' Jones] told [B. D.] that wasn’t the way, and she got up there and had sex with him,” in front of B. D. B. D. affirmed that Bernice Jones was “in the room when [B. D.] had sex with Tim.”

Defendant Timothy James Jones gave a custodial statement in which he admitted, “I have messed with her 2 or 3 times,” by finger penetration, but he denied any act of intercourse. Timothy James Jones explained to Investigator Tony Giddens “he was doing this because he loved her [B. D.] and she needed to be like her Mama.” In her custodial statement, defendant Bernice Jones “denied letting [defendant Timothy James Jones] have sex with [B. D.] in the bedroom. [Bernice] Jones stated that she leaves the bedroom door open but never made [B. D.] stay and watch.”

The jury found Timothy James Jones guilty on Counts 1 through 9 and Count 11 and found Bernice Jones guilty on Counts 10 and 11. Defendants’ motion for new trial was denied. In Case No. A97A0681, Bernice Jones appeals from the judgment of conviction and sentences entered on the jury’s verdicts, and in Case No. A97A0682, Timothy James Jones appeals. As Timothy James Jones’ sole enumeration of error is identical to an enumeration urged by Bernice Jones, the two cases are hereby consolidated for disposition on appeal. Held:

1. Each defendant contends the trial court erred in granting the State’s motion in limine to exclude evidence that the victim made “prior false allegations.” See Smith v. State, 259 Ga. 135 (377 SE2d 158).

The State moved in limine to prohibit the defense “from introducing . . . evidence in reference to any alleged untruths [told] by the victim unless . . . the untruths are in reference to the victim’s allegations of molestation. . . .” The defense contended the victim’s “school records, her records with mental health counselors; her doctors [allegedly] contained] information that we believe go to showing that this child has a propensity for telling untruths.” Specifically, the defense wanted to introduce evidence that the child fabricated an incident in which her brother had been killed by a deer’s antlers in an automobile accident. Another incident about the victim stating she found a “stamp, like you put on your arm[,] supposedly laced with LSD,” in her mother’s bedroom concededly “does not have a relevance. . . .” The trial court determined that the proper method of impeachment is that established by OCGA § 24-9-84, and “grant[ed] the State’s motion.”

“We find that the [trial] court’s [ruling is] correct. Instances of specific misconduct may not be used to impeach a witness’ character or veracity unless the misconduct has resulted in the conviction of a crime involving moral turpitude, OCGA § 24-9-84 (Code Ann. § 38-1804); Green, Ga. Law of Evidence (2nd ed.), § 138; Daniel, Ga. Crim. Trial Prac. (2nd ed.), § 20-23; Lewis v. State, 243 Ga. 443[, 445] (254 SE2d 830) (1979); McCarty v. State, 139 Ga. App. 101 (1) (227 SE2d 898) (1976), and the proper method of proving such a conviction is by the introduction of a certified copy thereof. Daniels v. State, 234 Ga. 523 (3) (216 SE2d 819) (1975).” Williams v. State, 251 Ga. 749, 799 (12) (312 SE2d 40). Inasmuch as the trial court’s ruling in the case sub judice excluded no evidence that the victim made prior false accusations of sexual misconduct against persons other than the accused, defendants’ reliance on Benton v. State, 265 Ga. 648, 649 (5) (461 SE2d 202), and Smith v. State, 259 Ga. 135, supra, is misplaced.

2. In her first enumeration, defendant Bernice Jones contends the trial court erred in denying her motion in limine to exclude the victim’s statements to adults describing the acts amounting to child molestation the victim attributed to defendants. Relying on Gregg v. State, 201 Ga. App. 238 (411 SE2d 65), she argues that the child’s statements should not have been admitted under OCGA § 24-3-16, arguing that the victim’s testimony at trial was inconsistent with the evidence of her earlier out-of-court statements as related by adults. Defendant Bernice Jones points to an alleged conflict between the testimony of Laura Brown and June Spivey on the one hand and B. D.’s testimony at trial on the other. The alleged inconsistencies are whether defendant Bernice Jones was always gone when defendant Timothy James Jones molested her; whether defendant Bernice Jones made B. D. strip before or after she ordered B. D. into the bedroom; and whether defendant Bernice Jones remained in the bedroom the entire time defendant Timothy James Jones was having sex with B. D.

In Gregg v. State, 201 Ga. App. 238, 239 (3), 240 (3) (b), supra, this Court noted ten nonexclusive factors the trial court should consider in determining whether the circumstances surrounding a child’s claim of molestation provide corroborating indicia of reliability. Defendant urges that, because of the purported inconsistencies, the child’s statements to adults do not meet the criteria for admission under the tenth Gregg factor. “These factors are to be applied neither in mechanical nor mathematical fashion, but in that manner best calculated to facilitate determination of the existence or absence of the requisite degree of trustworthiness.” Id. at 241 (3) (b).

In the cases sub judice, the victim eliminated any apparent inconsistency about the presence of defendant Bernice Jones, explaining that the episode involving her occurred on a weekend. That the trial testimony of the victim “merely included additional facts demonstrates no impeaching inconsistency with the [OCGA § 24-3-16 statements] attributed to her.” Weathers v. State, 198 Ga. App. 871 (2) (403 SE2d 449). As to the finer details of whether defendant Bernice Jones sent her daughter naked into the room where defendant Timothy James Jones lay, or whether, in truth, the child was not told to disrobe until after she was in the room, the victim’s testimony is consistent overall that defendant Bernice Jones acted as a panderer, using her ten-year-old daughter. The trial court did not abuse its discretion in admitting the testimony of Laura Brown and June Spivey under OCGA § 24-3-16, over defendant Bernice Jones’ objection that the evidence was inconsistent. Gregg v. State, 201 Ga. App. 238, 239 (3), 240 (3) (b), supra.

3. In her final two enumerations, defendant Bernice Jones urges the general grounds, arguing the testimony of Laura Brown and June Spivey “was not consistent with the victim’s testimony.”

“A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a). “Conflicts in the testimony of the witnesses, including the State’s witnesses, is a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citations and punctuation omitted.) Turner v. State, 223 Ga. App. 448, 449 (1) (a) (477 SE2d 847). “There is no requirement that the testimony of the victim of child molestation or aggravated child molestation be corroborated. Toles v. State, 202 Ga. App. 815 (1) (415 SE2d 531); Saunders v. State, 195 Ga. App. 810 (1) (395 SE2d 53); Fitzgerald v. State, 193 Ga. App. 76 (2) (386 SE2d 914). Nevertheless, the testimony of the victim in the case sub judice was corroborated by evidence of her outcry to her mother[, defendant Bernice Jones, who then beat the victim until she recanted,] and to her [teacher, Laura Brown, as well as to June Spivey from DFACS], [Cit.] Although there was evidence that the victim subsequently told her mother the allegations against defendant [Timothy James Jones] were not true, this was contrary to the victim’s direct evidence from the stand and a question of credibility was presented for the jury to resolve. The evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict[s] that defendant [Bernice Jones] is guilty, beyond a reasonable doubt, of child molestation ... as alleged in [Counts 10 and 11 of] the indictment. Patterson v. State, 212 Ga. App. 257 (1) (441 SE2d 414).” Dent v. State, 220 Ga. App. 147 (1) (469 SE2d 311). The enumeration of the general grounds is without merit.

Decided May 12, 1997.

Before Judge Buckley, pro hac vice.

John W. Strickland, Jr., for appellant (case no. A97A0681).

Carl A. Bryant, for appellant (case no. A97A0682).

Robert B. Ellis, Jr., District Attorney, for appellee.

Judgments affirmed.

Beasley and Smith, JJ, concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A97A0731.
    LAMBRIGHT v. THE STATE.
    (487 SE2d 59)
   Beasley, Judge.

Lambright appeals the denial of his motion to suppress evidence and his conviction for possession of cocaine, OCGA § 16-13-30.

“ ‘When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. (Cit.) The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. (Cits.) Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them. (Cit.)’ ” State v. Burnett, 220 Ga. App. 133, 134 (469 SE2d 324) (1996).

At the hearing on the motion to suppress, the only witnesses who testified were the arresting officers, Martin and Vincent. They testified that they were conducting a plainclothes patrol as part of a street crime suppression project targeting gang and drug activity in a certain high-crime area. The officers drove to an apartment complex behind a convenience store known for being a “stop and cop” location, as such is described in Lee v. State, 181 Ga. App. 570 (1) (353 SE2d 67) (1987). Martin observed Lambright and two other men standing on the corner in front of the store. Alexander approached Lambright, and a “hand-to-hand exchange” occurred. The two men walked toward another apartment complex and seemed to part company. Believing they had just witnessed a drug transaction, the officers radioed for backup units, exited their car, identified themselves as police, and stopped Lambright and Alexander.

Vincent questioned Lambright, whom he described as “very nervous,” and repeatedly asked him to remove his hands from his pockets. Lambright would comply but immediately repocket them. His manner and behavior caused Vincent to become alarmed that Lam-bright might be concealing a weapon, so he conducted a pat-down of the outside of Lambright’s clothing. Vincent detected an object in the right front pocket that felt as if it could be a knife. He asked Lam-bright to identify it, but he did not respond. Vincent reached in the pocket and retrieved a metal spoon with a white residue that later tested positive for cocaine; it was the eventual basis for his conviction.

Lambright challenges the validity first of the stop and then of the search. Upon this depends the admissibility of the cocaine-coated spoon.

1. “According to the United States Supreme Court there are three levels of encounter between an individual and the police. The first involves the mere accosting by an officer usually requesting name and identification. There is no threshold requirement and indeed the individual may refuse to answer or ignore the request and go on his way if he chooses, for this does not amount to any type of restraint and is not encompassed by the Fourth Amendment. The second is the ‘Terry type’ (Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968)) stop involving temporary restraint, a brief‘seizure’ which must be supported by articulable suspicion. The third is an actual or de facto arrest which requires probable cause and involves restraint of one’s liberty.” Exposito v. State, 191 Ga. App. 761, 762 (1) (382 SE2d 412) (1989). See also Holmes v. State, 222 Ga. App. 642, 643 (476 SE2d 37) (1996).

Lambright’s encounter with the police is within the second category where “[w]hat is demanded of the police officer . . . is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.” (Citations and punctuation omitted.) Foster v. State, 208 Ga. App. 699 (1) (431 SE2d 400) (1993). Lambright maintains that, distilled to its essence, the basis .for the stop was that the officers saw “something” exchanged in an area notorious for criminal activity. This, he argues, falls short of establishing sufficient articulable suspicion to justify the detention.

In determining whether a stop was justified by reasonable suspicion, “the totality of the circumstances — the whole picture — must be taken into account. . . . The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions — inferences and deductions that might well elude an untrained person.” United States v. Cortez, 449 U. S. 411, 418 (IIA) (101 SC 690, 66 LE2d 621) (1981); Evans v. State, 183 Ga. App. 436, 438 (2) (359 SE2d 174) (1987).

Martin’s undisputed testimony was that the particular area was known for heavy drug activity, and he had made drug-related arrests in the area himself. The officers were at the convenience store for the very reason that drug activity had been reported at that location. See State v. Grimes, 195 Ga. App. 773, 774 (1) (395 SE2d 42) (1990). Martin’s suspicions were initially aroused by Alexander, who was standing at a location known for “stop and cop” drug sales.

Lambright argues that courts are hesitant to find that a “high crime” designation is a strong factor in satisfying the standards required for an interrogatory stop, and erroneously cites United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975), for this proposition. To the contrary, a neighborhood’s high-crime reputation has repeatedly been regarded among the factors supporting articulable suspicion. See, e.g., Holmes v. State, supra at 643; Pless v. State, 218 Ga. App. 603 (1), 605 (2) (462 SE2d 472) (1995); Bozeman v. State, 196 Ga. App. 743 (1) (397 SE2d 30) (1990).

Martin’s suspicions became “articulable” the moment he saw the hand-to-hand exchange. Although Lambright contends the exchange was susceptible to many innocent interpretations, e.g., exchanging addresses or phone numbers, or borrowing a quarter or a cigarette, this behavior, coupled with Alexander’s standing in the mode of a seller at a known “stop and cop” location, provide the indicia to justify the investigatory detention.

Lambright’s reliance on State v. Banks, 223 Ga. App. 838 (479 SE2d 168) (1996), is misplaced. In Banks, which is physical precedent only, the police offered no justification for stopping the defendant other than the fact that he was standing on the side of the street in a high-crime area in “stop and cop” fashion. Here, the officer’s witness of a hand-to-hand exchange is a critical factor, as was recognized in Sibron v. New York, 392 U. S. 40 (88 SC 1889, 20 LE2d 917) (1968). In that case, the United States Supreme Court found no articulable suspicion where the police officer “merely saw Sibron talking to a number of known narcotics addicts over a period of eight hours,” and it expressly “emphasized that [the officer] was completely ignorant regarding the content of these conversations, and that he saw nothing pass between Sibron and the addicts.” Id. at 62 (IV). Accordingly, the officers’ personal observations of what appeared to be a drug transaction in this case, along with the other circumstances, provided a sufficient basis for the temporary restraint. Chaney v. State, 207 Ga. App. 72 (427 SE2d 63) (1993).

State v. Fowler, 215 Ga. App. 524 (451 SE2d 124) (1994), also relied on by Lambright, is equally distinguishable. The police decided to watch three men because they had been seen in the parking lot of a convenience store earlier. The officers observed the men engaged in “back and forth motions” in a car, although their hands were not visible. They stopped the cars and found contraband. There is no indication the area was known for drug transactions. The trial court’s suppression of the contraband was affirmed because the only fact suggesting a crime had occurred was the body motions of the car’s occupants. The circumstances lacked positive indicators and thus were markedly different from this case.

2. Given Lambright’s nervousness, and his preoccupation with accessing what was in his pockets, Officer Vincent was also authorized to conduct a pat-down to determine whether he was armed. “An officer may take appropriate self-protective measures when he lawfully confronts an individual and reasonably believes him to be armed or otherwise dangerous to the officer or others. The usual police response will be to conduct a frisk, patting the individual’s clothing in search of a weapon.” (Citations and punctuation omitted.) Chaney, supra at 72-73. That was the case here.

When Vincent sensed the long, hard object that he reasonably feared could be a knife, and Lambright refused to identify it, he was authorized to remove the object from Lambright’s pocket. Roberts v. State, 193 Ga. App. 96, 99-100 (386 SE2d 921) (1989). Particularized facts must justify the intrusion, Sibron, supra at 64, and they did so in this instance.

Decided May 12, 1997.

Before Judge Jackson.

Darel C. Mitchell, for appellant.

Daniel J. Porter, District Attorney, Rodney K. Miles, Assistant District Attorney, for appellee.

Admission of the spoon and cocaine in evidence was accordingly not error.

Judgment affirmed.

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

       Contrary to Lambright’s assertion, the decision in Brignoni-Ponce suggests that the designation of the Mexican border as a “high crime” area is a decisive factor in determining that border stops are justified. Recognizing the extent of the problem of combating illegal entry of aliens at the border, and the importance of the government’s interest, the Court condoned brief stops of merely “suspicious” individuals by border patrols, so long as the stops are reasonably related to the initial justification for the stop. Brignoni-Ponce, supra at 879-880 (III).


author: McMurray, Presiding Judge.

text:
    A97A0919.
    JONES v. THE STATE.
    (487 SE2d 62)
   McMurray, Presiding Judge.

Michael Bernard Jones was convicted on two counts of armed robbery and a count of possessing a firearm during the commission of a felony. Evidence at trial showed that around 6:30 p.m. on November 29, 1994, the first victim was walking near Ralph McGill and Boulevard in Atlanta. Jones approached this victim on a bike and asked if he had change for a five-dollar bill, to which the victim replied, “no.” Jones rode away but then returned, pointed a .380 pistol at the victim, and demanded money. The victim tried to talk Jones out of committing the crime but eventually gave Jones his coat, which contained $400. Approximately four hours later, Jones, again riding a bike, approached the second victim at a pay phone in the vicinity of the first incident. He asked the second victim for change of a ten-dollar bill, and upon receiving a negative response pulled a pistol on this victim and took his money, jewelry, and coat. Jones appeals. Held:

1. In his first enumeration of error, Jones, who is an African-American, contends the trial court erred by rejecting his challenges to the State’s use of peremptory strikes against six African-American prospective jurors, which he made pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

After the State used all six of its strikes against African-American prospective jurors, the trial court required the State to give race-neutral explanations for each of its strikes. The prosecutor gave the following reasons:

(a) Juror no. 6, an African-American male, was struck because he stated his brother had been treated unfairly by police. The prosecutor believed he might hold that fact against the police officers who testified against Jones.

(b) Juror no. 7, an African-American female, was struck because she “cut her eyes” at the prosecutor during voir dire, giving the prosecutor ‘Toad vibes.” The prosecutor felt that if the juror did not like her, she would not listen to the State’s case.

(c) Juror no. 9, an African-American male, stated during voir dire that he had been the victim of a crime in another state but was not happy with the manner in which police handled the crime.

(d) Juror no. 27, an African-American male, answered voir dire questions in a “joking” manner and did not appear to take the proceedings seriously. The State also struck the juror because the venireman said he did not feel comfortable sitting in judgment of others.

(e) Juror no. 31, an African-American female, responded that she and her husband had “forgiven” those who shot her husband, and the prosecutor feared she might “forgive” Jones, as well. The prosecutor also noted that this juror did not appear mentally capable of “synthesizing” the trial evidence.

(f) Juror no. 33, an African-American male, displayed a “hostile attitude” toward the State during voir dire. Although the State did not mention in what manner the venireman was hostile, this prospective juror stated he had been unfairly arrested by police. After the State gave these responses, the trial court denied Jones’ Batson motion.

Once a prima facie case of racial discrimination in the use of peremptory strikes is shown, the proponent of those strikes is required to produce a reason for those strikes which is race-neutral, case-related, clear and reasonably specific. Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996). At this second step of the Batson proceeding, the proffered reasons must be accepted by the trial court so long as they are not inherently discriminatory. Jackson v. State, 265 Ga. 897, 899 (2) (463 SE2d 699) (1995). The reasons given need not be persuasive or even plausible, so long as they are based on something other than the race of the juror. Woods v. State, 224 Ga. App. 52, 54 (2) (479 SE2d 414) (1996). Once the proponent of the strikes gives race-neutral reasons for those strikes, the trial court must determine, under the totality of the circumstances, whether the challenger has proven proffered reasons were merely pretext, and the strike was actually exercised for a racially discriminatory purpose. Turner v. State, supra.

Because the trial court required the State to explain its strikes, we need not determine whether Jones made out a prima facie case of discrimination. Chunn v. State, 210 Ga. App. 209, 210 (2) (435 SE2d 728) (1993). Here, the State gave reasons which were not, on their face, discriminatory. The record supports the State’s observation that juror nos. 6, 9, and 33 gave responses indicating they had a reason to question the credibility of law enforcement. As to the remaining jurors, concern that a prospective juror is hostile to the State or that a juror will not seriously consider the State’s evidence are neutral reasons for a strike. “Perceived inattention, nonresponsiveness, and hostility have been found to be legitimate, racially neutral reasons for striking a prospective juror.” Moak v. State, 222 Ga. App. 36, 39 (3) (473 SE2d 576) (1996). See also Lingo v. State, 263 Ga. 664, 667 (437 SE2d 463) (1993); Jackson v. State, 220 Ga. App. 98, 99 (469 SE2d 264) (1996). The trial court, unlike this Court, had the opportunity to view those prospective jurors. The trial judge could determine for herself whether juror no. 7 “cut her eyes” at the prosecutor in a hostile manner, gauge the tone of voice used by juror nos. 27 and 33, and characterize the responsiveness and interest of juror no. 31. Such factors do not show up in a trial transcript. This Court will, therefore, defer to the trial court’s acceptance of the State’s reasons as racially neutral, case-related, clear and reasonably specific. See McKenzie v. State, 223 Ga. App. 108, 114 (3) (c) (476 SE2d 868) (1996).

Because the State’s given reasons were sufficient to rebut Jones’ prima facie showing of racial discrimination, the central issue was properly framed for the trial court’s determination: whether Jones carried his burden of showing the proffered reasons were merely designed to “cover up” purposeful racial discrimination. See Greene v. State, 266 Ga. 439, 443 (5) (469 SE2d 129) (1996), rev’d on other grounds, 519 U. S. _ (117 SC 578, 136 LE2d 507) (1996). Jones’ counsel has pointed to facts showing the State did not strike white jurors who gave voir dire responses similar to those given by these African-American venirepersons. However, the trial court decided that issue of fact in favor of the State, and under our deferential standard of review, we cannot say the trial court’s determination was clearly erroneous. See Turner v. State, supra at 153.

2. Jones’ second enumeration asserts error in the trial court’s denial of his motion to sever trial of the two armed robbery charges. At the hearing on his motion to sever, Jones argued that trying the separate offenses in one proceeding would create undue prejudice against him. But “[o]ffenses may be joined [for trial] which are based on the same conduct, on a series of connected acts, or on a series of acts constituting parts of a single scheme or plan.” Floyd v. State, 186 Ga. App. 777 (1), 778 (368 SE2d 541) (1988). Here, the State argued that these two robberies, committed four hours apart, in the same geographic area, and in an almost identical manner by an attacker identified as Jones, constituted a single “crime spree.” The evidence at trial supported the State’s characterization, and the trial court did not abuse its discretion by refusing to try the offenses separately. See Samples v. State, 217 Ga. App. 509 (1) (460 SE2d 795) (1995).

3. Jones contends the trial court erred by refusing to suppress the victims’ in-court identification of him as the attacker, which he claims was tainted by an “unduly suggestive” pre-trial photographic lineup. In-court identification is not rendered inadmissible unless the pre-trial identification was impermissibly suggestive and the suggestiveness of the procedure created a substantial likelihood of misidentification. Kinsey v. State, 219 Ga. App. 204, 205-206 (1) (464 SE2d 648) (1995). Considerations in determining whether the “totality of the circumstances” shows a substantial likelihood of confusion include “(a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the confrontation.” (Citations and punctuation omitted.) Traylor v. State, 217 Ga. App. 648 (1) (458 SE2d 682) (1995).

Here, the first victim looked straight at Jones’ face under good lighting conditions for several minutes during the robbery. Five weeks later, upon viewing a photo lineup that included Jones and five other men with similar features, this victim took less than a minute to select Jones as his attacker. Although the detective did tell this victim that he could not arrest anyone without a photographic identification, the victim testified that statement had no impact on his selection. At trial in September 1996, this victim stated he was “100 percent sure” Jones was the man who robbed him. We find no substantial likelihood of misidentification. See Kinsey v. State, supra at 206; Stacey v. State, 214 Ga. App. 130, 131-132 (2) (447 SE2d 339) (1994). Although the detective should not have said that the suspect whom the victim picked from the lineup was the person the detective “had in mind,” there is no indication in this case that the detective prodded the victim to make that selection or that this statement led to an inaccurate identification. See Hulsey v. State, 210 Ga. App. 251, 254 (2) (435 SE2d 713) (1993).

The second victim, likewise, was able to view Jones’ face in sufficient lighting conditions for two or three minutes during the attack, and this victim had no trouble picking Jones from the other photographs presented to him by the detective five weeks later. See Kinsey v. State, supra. Moreover, the second victim testified that his in-court identification was based not on the photographic lineup but on his own recollection of the robbery. See Perry v. State, 212 Ga. App. 617 (442 SE2d 484) (1994). Therefore, the trial court did not err in refusing to suppress the victims’ in-court identifications.

Decided May 12, 1997.

Before Judge Tusan.

Elizabeth L. Markowitz, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Jamie L. Mack, Assistant District Attorneys, for appellee.

4. In his final three enumerations of error, Jones contends the trial court erred in giving a confusing instruction to the jury, which stated: “Circumstantial evidence that excludes every reasonable hypothesis is sufficient to authorize conviction in a criminal case, although it does not remove every possibility of a defendant’s innocence.” Although such an instruction might cause us concern if it represented the entire charge on this issue, the trial court immediately thereafter told the jury that “[t]o warrant a conviction on circumstantial evidence, the proven facts must not only be consistent with the theory of guilt, but must exclude every other reasonable theory other than the guilt of the accused.” Taken as a whole, this charge accurately instructed the jury on the proper role of circumstantial evidence. See Hurston v. State, 202 Ga. App. 311, 314 (2) (414 SE2d 303) (1991). Although Jones contends the court should have defined “hypothesis,” he requested no such charge. The court was not required to give this definition absent such a request, especially where eyewitness testimony supported the State’s case. See Davis v. State, 266 Ga. 801, 803-804 (7) (471 SE2d 191) (1996).

Judgment affirmed.

Beasley and Smith, JJ, concur.

       In Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834, 839) (1995), the Supreme Court referred to those civil cases from which the Batson court derived its shifting-burdens test of discrimination. One of the most recent of those civil cases, St. Mary’s Honor Center v. Hicks, 509 U. S. 502 (113 SC 2742, 125 LE2d 407, 422) (1993), clarifies that once a race-neutral reason for a decision is given, the party claiming discrimination bears the burden of showing that the reason was false and that discrimination was the real reason.


author: Judge Harold R. Banke.

text:
    A97A0748.
    DENNY v. THE STATE.
    (486 SE2d 417)
   Judge Harold R. Banke.

David William Denny was convicted of two counts of criminal damage to property and received a recidivist sentence. On appeal, he enumerates 15 errors.

This case arose from a family dispute over property. Denny’s grandfather owned a farm which was divided among his nine children when he died. Substantially all the surviving children and their progeny remained on the property.

Denny’s Aunt Cece purportedly deeded her portion, which included a house, to Denny. However, Denny never recorded the deed. The property was foreclosed upon and eventually Denny’s cousin, Elliott Wallace, purchased it, but Denny never acknowledged the transaction.

Wallace owned a trailer next door to the house, but because he had terminal cancer he often stayed with his mother, Mary Frances Mangum, who lived in a trailer next to his. Denny lived across the road with his cousin Sandra Reattoir, Cece’s daughter, and their son.

Just prior to the offense, Denny and Reattoir had been visiting the house. Denny testified that someone had “trashed” it, presumably Mangum’s granddaughter. Reattoir knocked on Mangum’s door and inquired whether Mangum’s granddaughter was there. She then asked about her father’s picture, which was missing from the house. Mangum responded, ‘Well, Sandra, you couldn’t have cared much for the picture, because the house has changed hands three times and the picture was still on the wall. If you had cared for your father’s picture, it wouldn’t have still been there.” Mangum then closed the door while Reattoir was responding.

At that point, Denny began screaming and breaking the windows in Mangum’s trailer, including those in her spare bedroom, where Wallace lay dying of cancer. Denny then broke the windows in Wallace’s trailer and his pickup truck. Both trailers sustained over $500 in damage. Held:

1. The evidence clearly did not support a jury charge on justification. The record shows that when Denny and Reattoir discovered the house had been “trashed,” no one else was there. This fact precludes a claim that Denny committed the offenses “to prevent or terminate” a trespass on the property. OCGA § 16-3-24 (a).

Moreover, a justification defense must be premised solely upon the circumstances which occur between a defendant and the victim. See Watson v. State, 206 Ga. App. 95, 97 (5) (424 SE2d 360) (1992). Denny’s own testimony makes it clear that he knew neither Mangum nor Wallace had damaged Reattoir’s mother’s house.

2. The trial court properly denied Denny’s oral request to charge the jury on provocation. OCGA § 5-5-24; Hubbard v. State, 220 Ga. App. 678 (1) (469 SE2d 866) (1996). The standard charges on provocation do not pertain to property offenses. See OCGA §§ 16-5-2; 16-5-25; see Council of Superior Court Judges, Suggested Pattern Jury-Instructions, Vol. II, Criminal Cases, p. 73. Denny’s request to charge failed to take this into account and thus was not adjusted to the evidence. See Shilliday v. Dunaway, 220 Ga. App. 406, 410 (7) (469 SE2d 485) (1996). Even if it had been, the concept is inapplicable to these facts because it presupposes that the victim provoked the offense. See, e.g., Mitchell v. State, 199 Ga. App. 159, 160-161 (404 SE2d 329) (1991).

3. The trial court did not err in refusing to give Denny’s verbally requested charge on temporary insanity. The record shows that Denny failed to comply with the ten-day notice requirement of Uniform Superior Court Rule 31.4 and he made no showing of good cause for failing to give notice of his intent to raise the insanity issue. Uniform Superior Court Rule 31.4 (B). Absent such a showing, the issue could not be raised at trial. Id.

Moreover, the only evidence Denny cited in support of the charge was his inability to remember committing the offenses. This would not require an insanity instruction. Reeves v. State, 234 Ga. 896, 898 (3) (218 SE2d 625) (1975) (overruled on other grounds).

4. Having concluded that the trial court properly declined to instruct the jury on justification and provocation, we reject Denny’s contention that a charge on affirmative defenses was required.

5. Nor did the trial court err in failing to instruct the jury on negative evidence. Denny never requested the charge. However, he maintains that the charge was mandated by Mangum’s testimony that Wallace never gave anyone permission to damage his trailer or truck. Because the failure to give this charge did not deprive the jury of the proper guidelines for determining guilt or innocence, the issue was not preserved for appeal. Roberts v. State, 221 Ga. App. 196, 198 (3) (471 SE2d 27) (1996). Moreover, because there was no contrary evidence for the jury to prefer over Mangum’s negative testimony, OCGA § 24-4-7’s preference for positive testimony is inapplicable.

6. The trial court did not abuse its discretion in admitting a photograph of Wallace, showing him sitting on his bed next to the damaged window. Nothing in the photograph could be construed as causing the kind of unfair prejudice or confusion which would require reversal. See Weeks v. State, 220 Ga. App. 141, 142-143 (1) (469 SE2d 316) (1996).

7. We reject Denny’s contention that the admission of Mangum’s testimony about Wallace’s cry for help during the offense requires reversal. The statement was admissible as res gestae. OCGA § 24-3-3; see Andrews v. State, 249 Ga. 223, 225-226 (290 SE2d 71) (1982) (defining res gestae). Assuming without deciding that the inconsistencies between Mangum’s testimony during the motion in limine hearing and at trial were material to these charges, they would have been a proper subject for cross-examination. See Truitt v. State, 168 Ga. App. 616, 617-618 (2) (309 SE2d 895) (1983).

8. The trial court’s denial of Denny’s motion for a continuance made on the day of trial does not mandate reversal. Because the record shows that Denny failed to satisfy each of the requirements of OCGA § 17-8-25 in seeking the continuance, we cannot say the trial court abused its discretion. Dorsey v. State, 203 Ga. App. 397, 399 (1) (416 SE2d 879) (1992); see Hicks v. State, 221 Ga. App. 735, 736-737 (2) (472 SE2d 474) (1996).

9. We reject Denny’s contention that the State committed prosecutorial misconduct by repeatedly injecting the fact that Wallace was dying of cancer when the offenses occurred. “A charge of prosecutorial misconduct is a serious charge and is not to be lightly made; having raised it, appellant has the duty to prove it by the record and by legal authority.” Meredith v. State, 211 Ga. App. 213, 215 (4) (438 SE2d 644) (1993). The record shows that Denny failed to object to most of this evidence and some of it he injected himself. Further, his objections of record were overruled and his motion in limine to exclude testimony about Wallace’s condition and demise was unsuccessful. The record provides no support for this claim. Compare Mazo v. State, 224 Ga. App. 744, 745 (1) (481 SE2d 831) (1997).

10. The trial court did not violate OCGA § 17-8-57 by questioning Denny about the identities of the individuals who purportedly “trashed” Reattoir’s mother’s house, the location of the house, and whether Mangum or Wallace had done anything to Denny. Notwithstanding Denny’s argument to the contrary, the court’s straightforward inquiries cannot be construed as an expression or intimation of its opinion about Denny’s justification defense. OCGA § 17-8-57. The trial court had the right to question Denny to fully develop the truth of the case. Eagle v. State, 264 Ga. 1, 3 (3) (440 SE2d 2) (1994).

11. The trial court properly denied Denny’s post-trial motion for disqualification and recusal of the judge. The motion, which challenged the trial court’s , impartiality based on several rulings against Denny, was untimely filed. Uniform Superior Court Rule 25.1. Furthermore, the grounds raised were insufficient to call into question the court’s impartiality. Ward v. State, 262 Ga. 293, 300 (19) (417 SE2d 130) (1992).

12. We reject Denny’s contention that reversal is required because voir dire was not recorded and he therefore received no record of it. Where voir dire is not recorded, the complaining party has the duty of complying with OCGA § 5-6-41 (g)’s procedure for reconstructing the record. Mapp v. State, 204 Ga. App. 647, 648 (2) (420 SE2d 615) (1992). There is no evidence that Denny complied with this statute. Further, even if the voir dire transcript corroborated Denny’s contention that the State interjected the issue of Wallace’s cancer, the error was harmless in light of Denny’s own testimony on the subject. See Roberson v. State, 214 Ga. App. 208, 211 (7) (447 SE2d 640) (1994).

13. The trial court’s consideration of a presentence report showing Denny’s extensive criminal history which was not provided to the defense did not violate OCGA § 17-10-2 (a)’s requirement that all evidence admitted in aggravation be made available to the defendant prior to trial. Trial courts are permitted to consider presentence reports when deciding whether to suspend or probate all or part of a sentence, although such reports cannot be used to determine the length of a sentence. Howard v. State, 172 Ga. App. 83, 84 (2) (321 SE2d 815) (1984); OCGA §§ 42-8-29 and 42-8-34. While the trial court mentioned the presentence report at sentencing, there is no evidence that the court relied on it to determine the length of Denny’s sentence. On the contrary, the report was not introduced at the sentencing hearing and the record shows the trial court premised the sentence (part of which was probated) on Denny’s prior burglary convictions. Munsford v. State, 235 Ga. 38, 45 (218 SE2d 792) (1975) (“The information in these reports cannot be regarded as ‘evidence’ either in aggravation or mitigation as such reports are not a part of the evidence introduced at the presentence hearing.”). Denny cannot claim lack of notice that the burglary convictions would be used in aggravation because the indictment included an habitual felon count premised on them. In any event, the record shows that Denny waived the error by failing to object to the use of the report on no prior notice grounds. Howard, 172 Ga. App. at 84 (2).

14. The trial court did not err in imposing restitution without first holding a hearing on Denny’s ability to pay. Because the restitution included in Denny’s sentence was not a condition precedent to probation, no hearing was required. Hunt v. State, 222 Ga. App. 66, 70 (3) (473 SE2d 157) (1996).

15. We reject Denny’s contention that reversal is required because the trial court quashed a number of subpoenas of magistrates and law enforcement personnel he filed. Denny sought their testimony to show the history of the on-going feud within his family.

Because Denny provided testimony of that fact, the error, if any, was harmless. See Roberson v. State, 214 Ga. App. at 211 (7). Moreover, Denny’s testimony that his problem was not with Wallace or Mangum rendered the prior bad acts of his other relatives irrelevant. See Jackson v. State, 261 Ga. 734, 735 (3) (410 SE2d 115) (1991). In addition, Denny failed to comply with Uniform Superior Court Rule 31.6’s ten-day notice requirement, which was necessary to present evidence of prior bad acts.

Decided April 28, 1997

Reconsideration denied May 13, 1997

Before Judge Temples.

Bates, Kelehear, Starr & Cherof Harlan M. Starr, for appellant.

David W. Denny, pro se.

Kermit N. McManus, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.

We decline to reach the six remaining issues contained in Denny’s amended enumerations of error. The amended enumerations were not filed within 20 days of the docketing date of November 26, 1996. “An enumeration of error may not be amended after the original filing time has expired.” Parham v. State, 166 Ga. App. 855, 856 (2) (305 SE2d 599) (1983).

Judgment affirmed.

Beasley and Smith, JJ, concur.

       OCGA § 24-4-7 states in pertinent part: “The existence of a fact testified to by one positive witness is to be believed, rather than that such fact did not exist because many other witnesses who had the same opportunity of observation swear that they did not see or know of its having existed.”

       During the hearing, Mangum testified that as Denny broke the bedroom window, Wallace yelled, “Mother, David’s breaking in.” At trial, she testified Wallace screamed, “Mother, help. He’s trying to kill me.” Denny did not mention this discrepancy on cross-examination.


author: Birdsong, Presiding Judge.

text:
    A97A0017.
    JENKINS v. HALL et al.
    (487 SE2d 66)
   Birdsong, Presiding Judge.

After the grant of an interlocutory appeal, Dorothy Jenkins appeals the trial court’s denial of her motion for summary judgment in an action brought against her by William Hall, by and through Diane Hall, his natural mother and next friend, and by Diane Hall. The Halls also sued Dorothy Jenkins’ minor daughter Larieta Nichole Jenkins to recover damages arising from an automobile accident.

On March 8, 1994, Larieta Jenkins asked Dorothy Jenkins for permission to drive the family car to the store, but Dorothy Jenkins refused to give Larieta permission to drive the car because she did not have a driver’s license. Instead, she told Larieta that she could go to the store if the next door neighbor would agree to drive her there. The neighbor agreed and drove Larieta to the store. On the way back, however, after the neighbor allowed Larieta to drive, Larieta lost control of the car and struck ten-year-old William Hall who was playing in his yard. Later, Diane Hall sued Larieta and Dorothy Jenkins alleging that Dorothy Jenkins was vicariously liable for Larieta’s negligent driving under the family purpose doctrine.

Dorothy Jenkins moved for summary judgment contending that she was not liable under the family purpose doctrine because she did not furnish the car for Larieta’s use. Hall did not respond to this motion, but by amendment, added a count to her complaint which alleged Dorothy Jenkins negligently entrusted the automobile to Larieta. Nevertheless, the trial court denied the motion for summary judgment.

A default judgment has been entered against Larieta Jenkins on liability. She is not a party to this appeal. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). When ruling on a motion for summary judgment, the opposing party is given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). In summary judgment proceedings the rules on admissibility of evidence apply, and hearsay has no probative value unless it is part of the res gestae. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (397 SE2d 576).

2. Construing the evidence in favor of the Halls, this record shows that Larieta Jenkins asked Dorothy Jenkins for permission to drive one of the family’s automobiles to the store, Dorothy Jenkins said no, but allowed a neighbor, who had a driver’s license, to drive Larieta to the store. When the car left her yard, Dorothy Jenkins saw the neighbor was driving the car and Larieta was sitting in the passenger’s seat.

Although Larieta may have been driving the car at the time of the accident, there is no competent evidence in the record to prove that fact. The only evidence in the record is Dorothy Jenkins’ deposition, and the deposition plainly shows that all she knows comes from what others told her. Consequently, her statements regarding the facts of the accident are merely inadmissible hearsay. Strickland v. DeKalb Hosp. Auth., supra at 65.

The record does show, however, that Dorothy Jenkins did not maintain and provide the car for Larieta and that, regardless of who was driving, at the time of the collision the car was not being used for Dorothy Jenkins’ benefit. Instead, the only logical inference which can be drawn from the admissible evidence is that Dorothy Jenkins loaned the car to the neighbor so the two young women could go to the store. Consequently, as the record shows the car was not provided for Larieta’s use and, if the car was driven by Larieta, it was not driven with Dorothy Jenkins’ permission as she had denied Larieta permission to drive the car, the evidence is not sufficient to invoke the family purpose doctrine. Shank v. Phillips, 193 Ga. App. 393, 394 (388 SE2d 5); Murch v. Brown, 166 Ga. App. 538, 539 (304 SE2d 750). Further, Dorothy Jenkins is not liable for the actions of the neighbor or of Larieta simply because she allowed the neighbor to use the car, even for Larieta’s convenience. Williams v. Gant, 218 Ga. App. 493, 494 (462 SE2d 179). Accordingly, as the trial court erred by denying Dorothy Jenkins’ motion for summary judgment, the order denying summary judgment must be reversed and the case remanded to the trial court with direction to grant summary judgment to Dorothy Jenkins.

Decided May 13, 1997.

Before Judge Jennings, pro hac vice.

Allgood, Childs, Mehrhof & Millians, Michael W. Millians, for appellant.

Edward B. Stalnaker, for appellees.

Judgment reversed with direction.

Ruffin and Eldridge, JJ., concur.


text:
    A97A0134.
    KUHL v. SHEPARD.
    (487 SE2d 68)
   Judge Harold R. Banke.

This case arose from Lee Shepard’s action for personal injuries resulting from a motor vehicle accident. It is undisputed that Hayward F. Kuhl’s vehicle collided with a Jeep driven by Brent Hogue in which Shepard was a passenger. At the time of the collision, Kuhl was operating his vehicle on the wrong side of the road. Kuhl subsequently pleaded guilty to driving under the influence of alcohol. Although Shepard was treated and released after receiving medical attention for a small cut, he had sustained a serious closed head injury, the full extent of which was initially unknown. Shepard sued Kuhl, Brent Hogue, the driver of the Jeep in which he was riding, and Mary Sue Hogue, the vehicle’s owner.

Eventually, all parties agreed to submit the case to binding arbitration subject to a few conditions. By mutual agreement, Kuhl and Shepard stipulated to a high/low agreement of $100,000/$20,000. The insurers of the defendants deferred the hotly contested issue of liability for prejudgment interest for subsequent judicial determination. In anticipation of a potential problem, all parties consented to the following provision: “The parties agree that in the event the arbitrator awards damages in any amount in excess of the Plaintiff’s demands made upon each of the Defendants pursuant to O.C.G.A. § 51-12-14 and thereby renders each or both Defendants liable for the payment of pre-judgment interest in an amount which would exceed the policy limits of either or both Defendants, then the issue as to whether or not the insurer of each Defendant held liable is responsible for the payment of such interest over and above said insurer’s policy limits shall be submitted to the Court in which this matter is pending.” Under the terms of the arbitration agreement, Kuhl would have no liability for prejudgment interest.

At the beginning of arbitration, Kuhl’s counsel stipulated to an admission of Kuhl’s liability, leaving only the liability of the Hogues and the amount of damages for resolution. The arbitrator determined that neither of the Hogues was responsible. After hearing the testimony of numerous expert medical witnesses and from Shepard’s family and friends, the arbitrator awarded $147,515.98. Approximately two weeks after the date of the arbitrator’s decision, Kuhl’s insurer, General Accident Insurance Company of America (“General Accident”), paid the full policy amount of $100,000 to Shepard. No judgment was entered on the arbitrator’s award. About three months after arbitration, Shepard filed a motion seeking prejudgment interest for the time period beginning 30 days after his demand letter of March 24, 1993 and the date of the award July 12, 1995. The trial court determined that Shepard was entitled to prejudgment interest and ordered General Accident to pay $24,020. General Accident appeals. Held:

On several grounds, General Accident contends that the trial court erred in awarding prejudgment interest pursuant to OCGA § 51-12-14. Pretermitting consideration as to whether the trial court lacked personal jurisdiction over General Accident, whether the arbitrator’s award included punitive damages, and whether Shepard’s notice to Kuhl satisfied the strictures of OCGA § 51-12-14 (a), for other reasons, we reverse. See, e.g., Martin v. Williams, 215 Ga. App. 649, 650 (1) (451 SE2d 822) (1994).

The Unliquidated Damages Interest Act establishes specific procedures for the recovery of prejudgment interest. OCGA § 51-12-14. As the statute is in derogation of the common law, it must be strictly construed. Resnik v. Pittman, 203 Ga. App. 835, 836 (418 SE2d 116) (1992). Claimants who give the requisite statutory written notice and demand can recoup prejudgment interest “on the amount demanded if, upon trial of the case in which the claim is made, the judgment is for an amount not less than the amount demanded.” OCGA § 51-12-14 (a). Shepard demanded $90,000 and ultimately recovered $100,000. However, the statute requires a “verdict of the jury or the award by the judge trying the case without a jury.” OCGA § 51-12-14 (d). Here, there was neither. By the statute’s explicit terms it requires a “date of judgment” and, of course, implicitly necessitates a judgment. OCGA § 51-12-14 (c). It is undisputed that the decision of the arbitrator was never confirmed by the trial court and no judgment was ever entered thereon. OCGA § 9-9-15. Because there was no judgment or judgment date, it was error to base the calculation of interest on July 12, 1995, the date of the arbitrator’s report. Inasmuch as the record fails to show the entry of judgment entered within one year of the arbitrator’s award, the imposition of prejudgment interest was error as prejudgment interest never began to accrue. OCGA § 9-9-12.

Decided May 13, 1997.

Before Judge Bodiford.

Gorby & Reeves, Michael J. Gorby, Karen E. Cooper, Daniel E. Turner, for appellant.

R. Keegan Federal, Jr., Carole A. Cox, for appellee.

Moreover, it is undisputed that Kuhl’s policy limit was $100,000 and that the policy contained no clause permitting the payment of an excess amount. Compare Southeast Atlantic Cargo Operators v. First State Ins. Co., 216 Ga. App. 791, 793 (2) (456 SE2d 101) (1995) (policy expressly permitted additional payments by insurer for postjudgment interest in excess of liability limit). General Accident’s liability for Shepard’s claim was limited by contract to $100,000, the policy maximum. J. C. Penney &c. Ins. Co. v. Woodard, 190 Ga. App. 727, 731-732 (7) (380 SE2d 282) (1989) (prejudgment interest award cannot exceed policy limit). Even if the trial court had confirmed the arbitrator’s award and entered judgment on it, General Accident’s liability under these facts could not have exceeded the $100,000 policy limit. Ga. Farm Bureau Mut. Ins. Co. v. Martin, 264 Ga. 347, 351 (3) (444 SE2d 739) (1994). For these reasons, we reverse.

Judgment reversed.

Beasley and Smith, JJ, concur.

       Shepard’s demand letter sent by regular mail to Kuhl sought payment of $90,000 from him.


text:
    A97A0493.
    THOMAS v. THE STATE.
    (487 SE2d 75)
   Judge Harold R. Banke.

Terry Lewis Thomas was convicted of four counts of armed robbery, kidnapping with bodily injury, kidnapping, attempted murder, aggravated assault on a peace officer, theft by receiving, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. He was sentenced as a recidivist to five consecutive life sentences and seventy years without parole. He enumerates nine errors.

These charges arose when Thomas and two co-defendants robbed the Commercial Bank. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). After forcing four bank employees to hand over money at gunpoint, the men fled in a stolen truck. A police officer who immediately responded to the bank’s silent alarm observed a dye bomb go off in the truck’s bed as it left the parking lot. The officer radioed for assistance and pursued the pickup as its occupants fired shots at him. Eventually, the men stopped the pickup and fled into some woods. Other officers and a tracking dog converged on the area, and all three men were apprehended. Thomas was particularly noticeable due to his large stature. As the dog tracked Thomas, police found a ski mask, a dye-spotted bundle of money, a wet sweatshirt, and a revolver. After the dog subdued Thomas, police recovered a semi-automatic pistol and over $40,000. Held:

1. We reject Thomas’ contention that reversal is required because he was escorted into the courtroom by deputies during voir dire and one potential juror who was not selected caught a glimpse of Thomas outside the courthouse in handcuffs. The juror denied mentioning this sight to the other jurors.

Without question, juries should not be permitted to view criminal defendants while they are circumscribed by such indicia of guilt as handcuffs or uniformed security personnel absent justifying circumstances. Rhodes v. State, 264 Ga. 123 (2) (441 SE2d 748) (1994). However, a brief, inadvertent violation of this rule is not ground for a new trial absent proof of prejudice. Id.

Here, the need for careful security was clear. Thomas, a very large individual with a prior conviction for aggravated assault, fired at police and threatened to kill an officer after his apprehension. There is no evidence that Thomas was restrained during trial. The juror who saw Thomas in handcuffs outside the courthouse denied that his presumption of innocence was affected by the sight. Under these circumstances, we cannot say that the trial court abused its discretion in refusing to strike the panel or the juror for cause. See Holland v. State, 197 Ga. App. 496, 497 (2) (398 SE2d 810) (1990); accord Elliott v. State, 253 Ga. 417, 421-422 (320 SE2d 361) (1984); see also Ely v. State, 222 Ga. App. 651, 653 (3) (475 SE2d 647) (1996) (defendant’s burden to show harm and error).

2. The trial court did not err in refusing a request to voir dire the dog handler outside the jury’s presence. In requesting to voir dire the dog handler, Thomas failed to indicate why voir dire was necessary and did not object to the handler’s testimony. Compare O’Quinn v. State, 153 Ga. App. 467, 469-470 (1) (265 SE2d 824) (1980); see Allison v. State, 217 Ga. App. 580, 582 (2) (459 SE2d 557) (1995). Nor has Thomas indicated how the refusal of his request for voir dire harmed him. Ely, 222 Ga. App. at 653 (3).

3. We reject Thomas’ contention that the dog handler’s testimony should have been stricken for lack of foundation. The record shows that a backup officer testified without objection about the circumstances leading to Thomas’ capture, including the dog’s actions. In addition, the handler testified about his own qualifications and the dog’s tracking, training, experience, and pedigree, substantially satisfying the requirements of Bogan v. State, 165 Ga. App. 851, 853 (3) (303 SE2d 48) (1983). Thomas has not specified how that testimony was deficient or how it harmed him. Ely, 222 Ga. App. at 653 (3). In any event, even if the foundation for the handler’s testimony was inadequate, the backup’s testimony rendered its admission harmless. See Vincent v. State, 264 Ga. 234, 235 (442 SE2d 748) (1994).

4. The State’s failure to provide Thomas with an investigator’s written statement that he “fiddled” with an inoperable firearm the Crime Lab returned and succeeded in firing it is not grounds for reversal. Proof the gun was functional was not required on the weapons charges, and the record shows that Thomas and his co-defendants possessed other firearms. Smith v. State, 214 Ga. App. 631, 633 (4) (448 SE2d 906) (1994); Bryant v. State, 169 Ga. App. 764 (1) (315 SE2d 257) (1984); see OCGA § 16-11-131 (a) (2). Thus, Thomas failed to establish that this testimony harmed his case. See Moon v. State, 194 Ga. App. 777, 779-780 (3) (392 SE2d 19) (1990).

5. The trial court’s admission of incriminating statements Thomas made after invoking his right to counsel does not require reversal. It is elementary that once the accused invokes his right to counsel, custodial interrogation must cease. Wilson v. State, 264 Ga. 287, 289 (2) (444 SE2d 306) (1994). But interrogation under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), extends to questions, words, and actions “other than those normally attendant to arrest and custody” reasonably likely to elicit an incriminating response. Syfrett v. State, 210 Ga. App. 185, 186 (3) (435 SE2d 470) (1993).

The record shows that Thomas requested a lawyer immediately after he was read his Miranda rights and the investigators then limited their inquiries to the usual questions attendant to arrest and custody. When two detectives subsequently attempted to obtain gunshot residue samples from Thomas’ hands, one of them made what could be interpreted as a taunting, sarcastic remark or, from a review of a cold record, could be viewed as a question not framed to elicit incriminating information. See Smith v. State, 264 Ga. 857, 859 (3) (452 SE2d 494) (1995) (inquiries necessary to determine whether defendant posed a threat do not constitute interrogation). Under these circumstances, we cannot say that the trial court clearly erre.d in finding that Thomas’ inculpatory statement was voluntary and not initiated by the detective. Simmons v. State, 266 Ga. 223, 226 (3) (466 SE2d 205) (1996) (standard of review). In any event, because the evidence against Thomas was so overwhelming, the admission of his statement, if error, was harmless beyond a reasonable doubt. See Harrington v. California, 395 U. S. 250, 254 (89 SC 1726, 23 LE2d 284) (1969); see also LaRue v. State, 137 Ga. App. 762, 764 (2) (224 SE2d 837) (1976).

6. We reject Thomas’ contention that reversal is required based on the trial court’s refusal to instruct the jury that it was the judge of both the law and the facts. Pretermitting whether this decision was error, the record shows that the jury was told prior to trial that after receiving instructions on the applicable principles of law, its job was to apply the law to the facts. In addition, the trial court charged the jury that it was the sole judge of the facts of the case. Because these instructions substantially convey the principles in the requested charge, reversal is inappropriate. Smith v. State, 222 Ga. App. 366, 371 (5) (474 SE2d 272) (1996).

7. This same principle applies to Thomas’ contention that the trial court erred in refusing to give his charge on circumstantial evidence. The record shows that the circumstantial evidence charge the jury received substantially tracked that included in Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 12 (2nd ed. 1991). Any variation in the language was a mere slip of the tongue which did not detract from the accuracy of the charge as a whole. Moak v. State, 222 Ga. App. 36, 40 (4) (473 SE2d 576) (1996). The instruction given imparted the same principles Thomas requested. Id.

8. The trial court properly declined to charge the jury on (1) pointing a pistol (as a lesser included offense of attempted murder and aggravated assault on a police officer); (2) discharging a weapon on a public street (as a lesser included offense of attempted murder and aggravated assault); and (3) robbery (as a lesser included offense of armed robbery of one of the tellers). The accused “is not entitled to a charge on a lesser included offense where the evidence establishes without dispute the commission of the greater offense charged. [Cits.]” Stafford v. State, 187 Ga. App. 401, 402 (1) (370 SE2d 646) (1988).

Here, the undisputed evidence of aggravated assault on a police officer, attempted murder, and armed robbery was overwhelming. The record shows that as the getaway truck pulled away from the bank, the pursuing officer saw a co-defendant inside the truck and Thomas, who was riding in the bed, holding guns and heard shots fired in his direction. The men fired again as they ran from the truck. This fact renders OCGA § 16-11-102 (pointing a pistol) inapplicable. See Rhodes v. State, 257 Ga. 368, 369-370 (5) (359 SE2d 670) (1987); see also Rowe v. State, 266 Ga. 136, 139 (3) (464 SE2d 811) (1996). Because the evidence in support of the requested instructions under OCGA §§ 16-11-102 and 16-11-103 shows either the completed offenses of attempted murder and aggravated assault on a police officer or the commission of no offense, the charge was not required. Andrews v. State, 222 Ga. App. 129, 130 (2) (473 SE2d 247) (1996); see Hawkins v. State, 262 Ga. 193, 194 (3) (b) (415 SE2d 636) (1992). The record clearly shows that the robberies were committed at gunpoint and Thomas did not deny he was armed, precluding the necessity of a charge on robbery by intimidation. Compare Edwards v. State, 264 Ga. 131, 132 (442 SE2d 444) (1994).

Decided May 13, 1997.

Before Judge James.

Jill L. Anderson, Steven W. Reighard, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

9. Thomas’ contention that the State commented on his failure to testify during closing argument is not supported by the record. On the contrary, the State reminded the jury that it was required to follow the law on a defendant’s right not to testify. The State then argued that it had presented hundreds of exhibits of showing guilt and rhetorically asked, “Where is the evidence of innocence?”

In his brief, Thomas also claims this question improperly shifted the burden of proof. We decline to reach this contention. Statements in the briefs cannot enlarge or alter the scope of review to include issues not reasonably contained in the enumeration of error. Jabaley v. Jabaley, 208 Ga. App. 179, 180 (2) (430 SE2d 119) (1993).

Judgment affirmed.

Beasley and Smith, JJ, concur.

       After one of the detectives noticed Thomas was bleeding from the dog bites and asked Thomas whether he had AIDS, Thomas responded, “you should have thought about that before you put that dog on me. ... I was just laying in the woods minding my own business and they ... put a dog on me.” The detective responded, “so you were just lying in the woods . . . minding your own business not bothering anybody.” Thomas then stated, “Yeah I f— ked up. I robbed the bank, but that doesn’t give /all the right to put that dog on me. I should have taken some of you m — rf~s out when I had the chance.”


author: Andrews, Chief Judge.

text:
    A97A0618.
    MANRY v. THE STATE.
    (487 SE2d 80)
   Andrews, Chief Judge.

Manry appeals pro se from the trial court’s order which dismissed his motion contending that he was serving an illegal and void sentence. The trial court concluded it did not have jurisdiction of the motion, which it treated as a habeas corpus petition.

Manry was indicted for one count of conspiracy to kidnap and murder two former business associates, Waldrop and Blackmon, two counts of soliciting their kidnappings, and two counts of soliciting the murders of the two men. On June 30, 1992, Manry pled guilty to the four solicitation counts and the State agreed to enter a nolle prosequi on the conspiracy charge. That same day, Manry was sentenced to five years each on the Waldrop counts to be served consecutively, plus five years probation on the Blackmon solicitation of kidnapping count, consecutive to the ten-year imprisonment sentence, and five years on the Blackmon solicitation of murder count, concurrent with the five years on the first Waldrop sentence.

Manry sought review by the Sentence Review Panel, which affirmed the sentence by order filed on November 19, 1992. On April 1, 1996, Manry filed his “Motion to Vacate and Correct Illegal Void Sentence” in Muscogee County Superior Court, in response to which the order appealed was entered, finding that the court did not have jurisdiction pursuant to OCGA § 9-14-43.

Manry argues that his sentence is void because there was, in fact, only one solicitation. The initial issue, however, is whether Manry, by pleading guilty, waived his later asserted double jeopardy claim. A trial court has no jurisdiction to modify a sentence after the term of court ends or 60 days pass as occurred here, OCGA § 15-6-3 (8) (D); Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991), but may resentence a defendant at any time if the sentence entered is void, i.e., imposes a sentence the law does not allow. Id.

This is not, as urged by Manry, a situation comparable to that in Blackledge v. Perry, 417 U. S. 21 (94 SC 2098, 40 LE2d 628) (1974), and Menna v. New York, 423 U. S. 61 (96 SC 241, 46 LE2d 195) (1975), because the right involved there was not to again be “haled into court at all” after once being tried under the same facts. Instead, this situation is very similar to United States v. Broce, 488 U. S. 563 (109 SC 757, 102 LE2d 927) (1989), where, after entering pleas of guilty to two separate indictments alleging bid rigging on two highway projects, Broce Construction Company and its owner sought to vacate their sentences, claiming there was only a single conspiracy, not separate conspiracies for each project. The Supreme Court rejected this argument, finding that “a guilty plea ‘is more than a confession which admits that the accused did various acts.’ [Cit.] It is an ‘admission that he committed the crime charged against him.’ [Cit.]” Broce, supra at 570. Here, as in Broce, the accused pled guilty to “indictments that on their face described separate [solicitations],” and the judgment is not subject to collateral attack. Broce, supra at 576; see Noble v. State, 220 Ga. App. 155, 159 (469 SE2d 307) (1996).

Decided May 13, 1997.

Before Judge Johnston.

Charles B. Manry, pro se.

J. Gray Conger, District Attorney, Frances D. Hakes, Assistant District Attorney, for appellee.

As stated in Cabell v. State, 221 Ga. App. 192 (471 SE2d 222) (1996), “[b]ecause the court lacked jurisdiction to consider the substantive issues [defendant] raised in his motion, the order appealed from is a nullity. OCGA § 17-9-4; [cits.]. The motion cannot be construed as a motion in arrest of judgment because it was not filed during the term the judgment was obtained. OCGA § 17-9-61 (b). Nor can it be considered a habeas petition because [defendant] filed it in the county of his conviction rather than against his warden in the county where he is incarcerated. [Cits.]” See also Stargell v. State, 204 Ga. App. 45 (418 SE2d 372) (1992).

Therefore, the trial court’s order concluding it had no jurisdiction to consider the motion is correct.

Judgment affirmed.

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


text:
    A97A1098.
    BROWN v. THE STATE.
    (486 SE2d 678)
   McMurray, Presiding Judge.

A jury convicted defendant Orlando Brown of aggravated assault and possession of a firearm during the commission of a crime. On appeal, he challenges the sufficiency of the evidence and claims error in the trial court’s recharge on self-defense. Held:

1. In two enumerations, defendant claims the evidence was insufficient to prove the crimes charged and overcome his claim of self-defense. Construed in favor of the verdict, the evidence shows the victim, Walter Kendrick, was visiting friends at the apartment complex where defendant lived. An eyewitness saw Kendrick, unarmed, sitting atop a bike outside an apartment and speaking to a tenant. That eyewitness testified that defendant came around the corner of the apartment building, saw the victim, went in his apartment, and came out with a shotgun, which he fired at the victim. Testimony showed the victim was attempting to flee when the shotgun blast struck him in the head and shoulders, blinding him in one eye. Defendant testified that Walter Kendrick had fired shots at him earlier that day and claimed he shot Walter Kendrick in self-defense. “The jury, assessing the weight of the evidence and the credibility of the witnesses, chose not to believe [Brown’s] testimony that the shooting was in self-defense. [Cit.] The evidence satisfies the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Weems v. State, 267 Ga. 182, 183 (1) (476 SE2d 585) (1996); see also Tucker v. State, 222 Ga. App. 517 (1), 518 (474 SE2d 696) (1996). These enumerations are without merit.

Decided May 13, 1997

Before Judge Pierce.

Stanley C. House, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

2. Defendant also claims the court erred when it recharged the jury, at its request, on the law of self-defense. According to Brown, the recharge should have reminded the jury of the State’s burden to disprove beyond a reasonable doubt the claim of self-defense. This enumeration is without merit, as the court instructed the jury on that burden in its original charge. “The original charge adequately covered the issues of reasonable doubt and burden of proof. Thus, the charge, taken as a whole, was proper. [Cit.]” Jordan v. State, 210 Ga. App. 30, 31 (2) (435 SE2d 256) (1993); see also Massalene v. State, 224 Ga. App. 321, 322 (2), 323 (480 SE2d 616) (1997).

Judgment affirmed.

Beasley and Smith, JJ, concur.


text:
    A97A1225.
    WINGFIELD v. THE STATE.
    (486 SE2d 676)
   McMurray, Presiding Judge.

Following a bench trial, Ernest Wingfield was convicted on two counts of selling cocaine. As a recidivist, he received a life sentence. On appeal, he challenges the sufficiency of the evidence and the court’s admission of videotapes showing the cocaine sales. He also contends he did not knowingly and voluntarily waive his right to a jury trial, and he charges his trial attorney with ineffective assistance of counsel. Held:

1. In reviewing Wingfield’s three enumerations challenging the sufficiency of evidence, we construe the evidence most strongly in favor of the verdict to determine whether a rational trier of fact could have found Wingfield guilty of these offenses beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Jones v. State, 220 Ga. App. 161 (1), 162 (469 SE2d 300) (1996).

The State’s chief witness was an independent undercover agent who worked at the direction of Jeff Youngblood, a Crisp County deputy sheriff. The agent testified that just before 6:00 p.m. on January 17, 1996, he met Wingfield in the parking lot of a nightclub in Crisp County. Wingfield gave him crack cocaine in exchange for $20. Later that evening, the agent again met Wingfield in the same parking lot and purchased from him another $20 piece of crack cocaine. The transaction was secretly captured on videotape, and a Georgia Bureau of Investigation chemist identified the material purchased as cocaine. This testimony, which the trial court sitting as factfinder found credible, is sufficient to support the convictions. See Jones, supra at 162; King v. State, 214 Ga. App. 406 (3), 407 (447 SE2d 712) (1994).

2. Wingfield claims the trial court erred by admitting the videotape of the cocaine sales. Here, the undercover agent testified that he knew how to operate the recording device; that his review of the videotape showed it had not been altered; and that the videotape fairly and accurately depicted the transactions at issue. Therefore, the trial court did not abuse its discretion by admitting it. Dunn v. State, 218 Ga. App. 329, 330 (461 SE2d 294) (1995). Contrary to Wingfield’s argument, the foundational requirements stated in State v. Berky, 214 Ga. App. 174, 176 (447 SE2d 147) (1994), vacated, 266 Ga. 28 (463 SE2d 891) (1995), are not applicable. Those additional requirements were applied to a situation in which no witness was available to testify to the accuracy of the videotape.

3. We find no error in the court’s determination that Wingfield knowingly and voluntarily waived his right to a jury trial. Before trial, Wingfield told the court he wished to have a bench trial. The court reminded Wingfield of his absolute right to trial by jury, and Wingfield’s trial counsel told the court he had advised his client of his right to jury trial and had discussed with his client the “positive and negative sides of waiving a jury trial.” Wingfield told the court that no one had forced him to make the decision.

After the court delivered its verdict, however, Wingfield complained to the court that his attorney had “misled him” into believing he would receive a lighter sentence if he opted for a bench trial. The court appointed Wingfield new counsel. At the hearing on Wingfield’s motion for new trial, Wingfield’s original attorney denied the allegations and testified he told Wingfield that if he were convicted, he would receive a life sentence.

Although the burden is on the State to prove Wingfield personally, intelligently, and voluntarily waived his right to trial by jury, “the record supports the trial court’s finding that [Wingfield] consulted with his attorney and made an intelligent and knowing decision to waive this right.” (Citation and punctuation omitted.) Hansen v. State, 222 Ga. App. 537, 539 (3) (474 SE2d 735) (1996). See also Evans v. State, 216 Ga. App. 21, 24 (3), 25 (453 SE2d 100) (1995).

Decided May 13, 1997.

Before Judge Faircloth.

David E. Morgan III, for appellant.

John C. Pridgen, District Attorney, Patrick J. McDonough, Assistant District Attorney, for appellee.

4. In his final enumeration, Wingfield claims his trial attorney rendered him ineffective assistance by leading him to believe he would receive a lighter sentence if he agreed to a bench trial. As discussed in Division 3, supra, the trial court rejected this factual assertion. As the trial court’s finding on this issue was not clearly erroneous, we cannot say the attorney rendered ineffective assistance. See Taylor v. State, 266 Ga. 129 (464 SE2d 385) (1995); Smith v. State, 207 Ga. App. 290, 291 (2) (428 SE2d 95) (1993).

Judgment affirmed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A97A1479.
    SOUTHERN et al. v. SPHERE-DRAKE INSURANCE COMPANY, INC.
    (486 SE2d 674)
   Judge Harold R. Banke.

The instant case arose from a determination of insurance coverage relating to an incident at Kingshead Pub (“Kingshead”) in which Danny Southern and Diane Key Cart were allegedly injured during an altercation involving Kingshead’s employees. Southern and Cart asserted claims for assault and battery, malicious prosecution, false arrest, and false imprisonment. In addition, they alleged their injuries resulted from Kingshead’s negligent hiring, training and supervision of its employees. Southern and Cart sought compensatory and punitive damages.

Kingshead’s insurer, Sphere-Drake Insurance Company, Inc. (“Sphere-Drake”) sought declaratory relief, contending the liability coverage sought fell outside Kingshead’s general liability insurance policy. After Sphere-Drake moved for summary judgment, Southern and Cart again amended their complaint to allege in the alternative that their injuries and damages were the result of negligence or negligent acts.

It is undisputed that the subject policy contains the following assault and battery/negligent hiring exclusion: “Notwithstanding anything contained to the contrary, it is understood and agreed that this policy excludes claims arising out of: 1. Assault and Battery, whether caused by or at the instruction of, or at the direction of or negligence of the insured, his employees, patrons, or any causes whatsoever and; 2. Allegations that the insured’s negligent acts, error or omissions in connection with the hiring, retention, supervision or control of employees, agents or representatives caused, contributed to, related to or accounted for the assault and battery.” The insurance policy at issue also contains a punitive damages exclusion endorsement.

The trial court determined that neither Kingshead nor its employees were entitled to insurance coverage for any claims arising out of the alleged altercation and its aftermath. In its order, the court noted, “Southern and Cart cannot amend their Original Complaint to include allegations of general negligence simply to avoid non-coverage on the claims raised in the Original Complaint. For these reasons, the Court finds that summary judgment in favor of Plaintiff Sphere-Drake is proper on all negligence claims raised in the Amended Complaint.” Southern and Cart appeal summary judgment granted to Sphere-Drake. Held:

Southern and Cart contend that summary judgment was precluded by unresolved questions of material fact. At the outset, we note that Southern and Cart had a right to amend their complaint regardless of whether the negligence theories raised in the amended complaint were inconsistent with the intentional torts asserted in their earlier complaint. Parties may set forth inconsistent claims and theories and may freely amend their complaint prior to the entry of a pretrial order. OCGA §§ 9-11-8 (e) (2); 9-11-15 (c); D. H Overmyer Co. v. Kapplin, 122 Ga. App. 51, 53 (1) (176 SE2d 207) (1970) (plaintiff has right to plead inconsistent, alternative theories).

Nevertheless, the trial court properly granted Sphere-Drake’s motion for summary judgment notwithstanding Southern and Cart’s unsuccessful belated effort to incorporate claims for negligence. See Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991) (judgment right for any reason will be affirmed). Regardless of whether Southern and Cart assert that their injuries were deliberately or negligently inflicted, there is no coverage according to the plain and unambiguous policy language.

Where an insurance contract provision is clear and unambiguous, its interpretation is a matter for the court. Marsh v. Chrysler Ins. Co., 169 Ga. App. 639, 640 (1) (314 SE2d 475) (1984); Pacific Indem. Co. v. N.A., Inc., 120 Ga. App. 793, 794 (1) (172 SE2d 192) (1969); see OCGA § 13-2-1. Under the terms of the assault and battery/negligent hiring exclusion, assault and battery arising from any cause including negligent acts was not covered. See Al Who Enterprises v. Capitol Indem. Corp., 217 Ga. App. 423, 426 (1) (457 SE2d 696) (1995); see also Dynamic Cleaning Svc. v. First Financial Ins. Co., 208 Ga. App. 37 (430 SE2d 33) (1993) (physical precedent only).

Notwithstanding Southern and Cart’s efforts to misconstrue the unambiguous policy language, no coverage was available for their claims for false imprisonment, false arrest, and malicious prosecution. The policy at issue defined an “occurrence” as an “accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” By definition, false arrest, false imprisonment and malicious prosecution do not occur by accident and are not accidental in nature. OCGA §§ 51-7-1; 51-7-20; 51-7-40; see Adams, Ga. Law of Torts (1996 ed.), §§ 29-4-29-5. Finally, the punitive damage exclusion endorsement specifically foreclosed coverage for those damages. OCGA § 13-2-1; Binswanger Glass Co. v. Beers Constr. Co., 141 Ga. App. 715, 716 (1) (234 SE2d 363) (1977). For these reasons, Sphere-Drake was entitled to summary judgment as a matter of law. OCGA § 9-11-56 (c).

Decided May 13, 1997.

Before Judge Flournoy.

Barry Staples, L. Chandler Vreeland, for appellants.

Alan I. Begner, Scott M. Zahler, Charles M. Goetz, Jr., Benjamin T. Hughes, for appellee.

Judgment affirmed.

Birdsong, P. J, and Ruffin, J., concur.

       Moreover, under Georgia law, there is no such tort as “negligent false imprisonment.” Stewart v. Williams, 243 Ga. 580, 581-582 (255 SE2d 699) (1979).


author: McMURRAY, Presiding Judge.

text:
    A97A0019.
    McKIBBONS v. THE STATE.
    (486 SE2d 679)
   McMURRAY, Presiding Judge.

Defendant McKdbbons appeals her conviction of voluntary manslaughter. The victim was defendant’s son, Theodore Demetrius Russell. Held:

1. The trial court did not err in denying defendant’s motion for new trial on the general grounds. Stated in the light most favorable to sustaining the verdict of the jury, the evidence at trial showed that the victim drove defendant and his grandmother to the theater where it was discovered that the performance had been canceled. Upon their return home a dispute arose between the victim and defendant concerning the volume at which the victim was playing a radio. The noisy argument continued for a time in defendant’s bedroom behind a closed door. The victim then exited defendant’s room and was following his grandmother towards the den of the home when defendant came out of her room with a revolver. Defendant approached the victim holding the revolver up while defendant’s mother (the victim’s grandmother) shouted “don’t do that,” but defendant fired the revolver fatally wounding the victim.

Defendant testified and described a physical fight with the victim in which she was hit, thrown against furniture, and threatened with a knife. The revolver fired unintentionally according to defendant. Police officers testified that there was no visible injury to defendant and she did not seek treatment for any physical injury. A firearms expert testified that the revolver would not fire unless the trigger was pulled.

“With respect to [defendant’s] intent to kill, criminal intention is a jury question, and a jury’s finding on that issue will not be disturbed on appeal unless contrary to the evidence and clearly erroneous. See Peterson v. State, 204 Ga. App. 532, 533 (1) (419 SE2d 757) (1992). ‘Criminal intent rarely can be proved by direct evidence, but its existence may be inferred by the trier of fact upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.’ (Citations and punctuation omitted.) Id. Additionally, a presumption exists that persons of sound mind and discretion intend the natural and probable consequences of their acts. See Stubbs v. State, 220 Ga. App. 106, 108 (469 SE2d 229) (1996); see also OCGA § 16-2-5.” Carlton v. State, 224 Ga. App. 315, 316 (1) (480 SE2d 336). In the case sub judice, the evidence was sufficient to authorize a rational trier of fact to determine defendant’s guilt, beyond a reasonable doubt, of voluntary manslaughter. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Carlton v. State, 224 Ga. App. 315, 316 (1), supra.

2. The first enumeration of error maintains that the trial court erred in allowing the State to elicit hearsay testimony regarding prior difficulties between defendant and the victim. The State attempted to elicit such testimony from two witnesses.

Witness Brooks testified that he became familiar with the victim through the “Big Brothers Program.” After serving as the victim’s mentor under this program for over a year and a half, Brooks continued to be a friend and confidant. After high school, the victim resided with Brooks until the time of his death.

Over defendant’s objections on several grounds, including that it was hearsay, Brooks was permitted to testify concerning a 1990 conversation in which the victim had told about prior difficulties with defendant. In that conversation, the victim had stated that he had been cutting hedges, that defendant was dissatisfied with the job the victim was doing, and that defendant was being verbally abusive. When the victim had talked back, defendant had threatened to go get her “gun” and shoot him. The defendant Teft the scene for a short time and then returned to tell the victim that he was lucky because she could not find her “gun.”

Subsequently, Brooks confronted defendant concerning the incident the victim had related to him. Defendant acknowledged the incident but opined that it was not Brooks’ business.

While hearsay may not be admitted solely on the ground that it concerns prior difficulties, the testimony concerning the 1990 conversation falls within the necessity exception to the hearsay rule. “The two prerequisites for the admission of hearsay because of necessity are 1) necessity, and 2) particularized guarantees of trustworthiness. McKissick v. State, 263 Ga. 188 (429 SE2d 655) (1993). The first prerequisite is satisfied since the victim, who is now unavailable as a witness because [he] is deceased, made the statement. Id. at 189. As to the second requirement, the declaration of the decedent is admissible when it is coupled with circumstances which attribute verity to it. White v. White, 262 Ga. 168 (415 SE2d 467) (1992); see also C&S Bank of Albany v. Swain, 185 Ga. App. 881, 884 (366 SE2d 191) (1988) (Beasley, J., dissenting).” Roper v. State, 263 Ga. 201, 202-203 (2) (429 SE2d 668). Here, the statements were made by the victim to a friend and mentor in whom he placed great confidence as reflected in the relationship between the two which had developed over a period of approximately seven years. Also, we have in this case the evidence of the defendant’s acknowledgment which corroborated the victim’s statements to Brooks. Considering the totality of the circumstances there were sufficient indicia of trustworthiness. The evidence concerning the victim’s 1990 statement to Brooks was properly admitted. Roper v. State, 263 Ga. 201, 203, supra.

Witness Battle also gave prior difficulties testimony of which defendant complains. While the defendant’s objection to this witness’ testimony was sustained and the jury was instructed at length to disregard the testimony of this witness, defendant maintains that her motion for mistrial should have been granted. However, defense counsel failed to state any basis for the motion for mistrial, and the curative instructions given by the trial court were sufficient to remove any improper impression arising from the testimony of witness Battle. Willingham v. State, 212 Ga. App. 457, 458 (442 SE2d 4); Mathis v. State, 204 Ga. App. 896, 898 (3) (420 SE2d 788).

3. Defendant also contends that the trial court erred in permitting the State to present certain similar transaction evidence. Williams v. State, 261 Ga. 640, 641-642 (2) (409 SE2d 649) provides that before admission of similar transaction evidence, the State must affirmatively show that (1) it is introducing evidence of an independent offense or act for an appropriate purpose, (2) there is sufficient evidence to establish that the accused committed the independent offense or act, and (3) there is sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Defendant maintains that the State failed to make the required showing as to the third requirement; in other words, defendant argues that there was no logical connection between the two incidents so that proof of the similar transaction incident tended to establish the crime of which she was convicted.

Decided May 14, 1997.

Before Judge Jenrette.

Rubin, Winter, Rapoport & Hall, Robert G. Rubin, Yonette M. Sam-Buchanan, for appellant.

Lewis R. Slaton, District Attorney, Ronnie E. Dixon, Elizabeth W. Morn, Assistant District Attorneys, for appellee.

The similar transaction evidence at issue showed a dispute between defendant and a next-door neighbor. The neighbor was cutting hedges on her (the neighbor’s) property when defendant objected. Defendant proceeded onto the neighbor’s property, threatened her with a rake, and also threatened to shoot the neighbor. The neighbor called police. A police officer who responded to the call testified as to speaking to defendant and stated that defendant acknowledged threatening the neighbor and mentioned that she had a .38 caliber handgun.

As in Willis v. State, 214 Ga. App. 479, 480 (3) (a) (448 SE2d 223), the similar transaction evidence tended to show defendant’s “temper and [her] propensity to settle disagreements with a gun. . . .” The trial court did not err in admitting the similar transaction evidence to show defendant’s bent of mind and to rebut her claim that she did not intend to fire the revolver. See also Farley v. State, 265 Ga. 622, 623 (2) (458 SE2d 643); Edwards v. State, 261 Ga. 509, n. 2 (406 SE2d 79); Gentry v. State, 250 Ga. 802, 803 (1) (301 SE2d 273); Jordan v. State, 192 Ga. App. 69, 70 (2) (383 SE2d 631).

Judgment affirmed.

Beasley and Smith, JJ., concur.