text:
    75066.
    ALLEN v. HELEWSKI.
    (361 SE2d 711)
   McMurray, Presiding Judge.

Appellant is seeking to adopt his stepson. Appellant filed an adoption petition on May 25, 1983, and his wife, the child’s natural mother, consented to the adoption. Appellee is the natural father of the child. The petition alleged, in part, that appellee had failed significantly for a period of one year or longer immediately prior to the filing of the petition to communicate or to make a bona fide effort to communicate with the child or to provide for the care and support of the child. See OCGA § 19-8-6 (b). It was also alleged that appellee would have to be given notice of the adoption proceedings by publication because his whereabouts were unknown.

Appellee was served by publication. Thereafter, on July 29, 1983, an order was entered granting appellant’s adoption petition. Over two years later, appellee moved to set aside the adoption. Following an evidentiary hearing, an order was entered setting the adoption aside. The superior court held that appellant did not exercise due diligence in attempting to locate appellee’s whereabouts and that, therefore, appellee was not served properly with a copy of the petition. Thereupon, the court ruled that appellee would be permitted to file an answer to the adoption petition.

Appellee filed an answer to the adoption petition on August 14, 1986. Following discovery, the matter came on for a hearing and the superior court entered an order denying appellant’s petition for adoption. The court ruled, in part: “[T]he natural father did not provide support for the minor child . . . and did not communicate with the child as provided by the [applicable] code sections . . . however, this Court further finds that such failure was not voluntary or willful on the part of the natural father . . . and therefore there was no termination of parental rights due to his actions and ... his consent to the adoption of the minor child is a necessary prerequisite to this adoption.” This appeal followed. Held:

1. Appellant contends the superior court erred in granting appellee’s motion to set aside the adoption. The adoption was set aside upon evidence that appellee was improperly served by publication because appellant did not exercise due diligence to find appellee. See in this connection Cook v. Bright, 150 Ga. App. 696 (258 SE2d 326). In order to review the superior court’s ruling on this matter a transcript of the evidénce is essential. As it is said: “This court cannot consider questions with respect to proceedings on a trial which are related in a party’s brief but are not incorporated in a properly authenticated transcript as required by the Appellate Practice Act.” R. & S. Mgt. Co. v. Huntley, 119 Ga. App. 712 (168 SE2d 626).

Appellant had the responsibility to make sure that the transcript was prepared and forwarded. See Long v. City of Midway, 251 Ga. 364 (306 SE2d 639). In his notice of appeal, appellant specified that a transcript had been filed. In fact, a transcript of the hearing on the adoption issue was filed and made a part of the record on appeal. However, a transcript of the hearing on the motion to set aside does not appear. Accordingly, this court cannot pass upon the merits of the superior court’s order granting the motion to set aside. Turner v. Watson, 139 Ga. App. 648 (229 SE2d 126).

2. In seeking to establish that appellee failed significantly to communicate with the child or to provide for his support, it was not incumbent upon appellant to demonstrate that appellee willfully failed in these respects. Proof of willfulness is not necessary in order to find a significant failure under OCGA § 19-8-6 (b). In re S. B. P., 164 Ga. App. 50 (296 SE2d 236). It appearing that the superior court’s order denying the petition for adoption was predicated upon an erroneous interpretation of OCGA § 19-8-6 (b), we must reverse and remand this case for further consideration. In re S. B. P., supra.

Judgment reversed and case remanded for further proceedings.

Sognier and Beasley, JJ., concur.

Decided October 5, 1987.

Jerry D. Sanders, for appellant.

William H. Arey, for appellee.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    75142.
    GOINS v. THE STATE.
    (361 SE2d 853)
   Deen, Presiding Judge.

Appellant Goins was a passenger in an automobile stopped by a Dade County police officer, Deputy Oswalt, because it was seen to be “weaving” along the highway in an erratic manner. Just as Oswalt reached for the switch to turn on his blue light as a signal for the car to pull over, it braked sharply and slid off the road. When Oswalt parked his car and approached on foot, four men, including the driver, quickly emerged from the automobile; appellant and one other man got out of the rear doors, and the driver and another passenger got out of the front. The officer, who according to his testimony did not like the four-to-one odds, ordered appellant and the other two passengers to resume their former places in the car, and then radioed for a back-up car, which arrived shortly.

In the meanwhile, Oswalt made a radio check on the automobile’s license plate and discovered that it was stolen. He learned that the front-seat passenger was the car’s owner but was not driving because he had no valid driver’s license. He also observed inside the car a bottle of whiskey, which the occupants admitted they had been sharing as they drove around.

Upon arrival of the back-up officer, a Mr. Gray, Oswalt asked him to transport appellant and one of the other passengers to the sheriff’s office for questioning and ordered the two to get into the screened-off rear section of Gray’s patrol car. They did so, leaving the door open. Officer Oswalt testified that as he stood a short distance from the Gray patrol car questioning the driver and the owner, he observed appellant, through the open car door, making “shuffling” movements that looked as if he were attempting to stuff something under the seat he was occupying. Before leaving the scene, Oswalt informed Gray of what he had observed and suggested that he check under the rear seat after appellant and the other passenger had been delivered to the sheriff’s office. According to Gray’s testimony, he replied to Oswalt that he had observed the same conduct from where he was standing, the patrol car’s open door permitting an unobstructed view of the back seat and its occupants. The officers testified that all passengers, including appellant, had been transported to the sheriff’s office for several reasons: (1) it was unsafe both for them and for the general public to leave them (having admittedly consumed whiskey) on the highway, either with or without access to the automobile; (2) there were questions to be asked regarding the stolen automobile license; and (3) should the rear-seat passengers (including appellant) turn out to have no involvement in the matter of the stolen license tag, they would have the use of the sheriff’s telephone to obtain rides home, whereas they would have been unable to do so had they been left standing beside the highway.

After the four men had been taken into the sheriff’s office, Gray immediately returned to the patrol car, removed the back seat, and found a small plastic bag containing a substance later identified as cocaine. He testified that he had thoroughly cleaned and vacuumed his patrol car, including removing the rear seat, on the preceding afternoon; that the cocaine had not been there at that time; and that he had remained in sole possession of the patrol car until the time that he was requested to transport appellant and the other passenger to the sheriff’s office. All four men denied ownership of the cocaine or any knowledge of its presence in the vicinity, or of how it got into the patrol car.

After a jury trial, appellant was found guilty of possession of cocaine and received a ten-year sentence. On appeal he enumerates as error the trial court’s denial of his oral motion to suppress, which was made at the close of the State’s evidence. Held:

Ordinarily, a motion to suppress must be made, in writing, prior to commencement of trial. Otherwise, the defendant is deemed to have waived the right to file such a motion. Turner v. State, 178 Ga. App. 888 (345 SE2d 99) (1986); Wilcoxen v. State, 162 Ga. App. 800 (292 SE2d 905) (1982). Appellant contends, however, that he made no pre-trial motion to suppress because he lacked standing to object to the search of a police car, and that therefore his belated oral motion was valid. See Dennis v. State, 166 Ga. App. 715 (305 SE2d 443) (1983); Turner v. State, supra. Moreover, he contends on appeal that it was not the cocaine itself that he wished to have suppressed so much as the testimony of the police officers regarding what took place while appellant was in the police car preparatory to being driven to the sheriff’s office, including especially the officers’ account of how the cocaine happened to be under the seat.

The State contends that even if, arguendo, appellant’s failure to file a written motion to suppress prior to trial does not constitute a waiver, then his failure to object when the prosecution introduced the cocaine into evidence assuredly does constitute such a waiver. The transcript shows that in his oral motion defense counsel contended that the seizure of appellant was illegal, “and anything that transpired from that point on would be obtained as a fruit of that illegal seizure of this person. And we think that anything found in the police car from that point on, is illegally obtained and should be suppressed. We would make the motion that the cocaine itself be suppressed on that ground.”

Decided October 5, 1987.

John R. Emmett, for appellant.

David L. Lomenick, Jr., District Attorney, McCracken K. Pos ton, Jr., Assistant District Attorney, for appellee.

As the State points out in its brief, Goins’ appellate brief focuses not on the cocaine itself but on the testimonial evidence of the police officers regarding how the cocaine got under the seat occupied by appellant in the patrol car. Appellant contends that the word “anything” employed in the oral motion to suppress includes, or refers particularly to, that testimony.

Our examination of the record, including the trial transcript, persuades us that appellant is attempting on appeal to shift the gravamen of its enumeration of error from the cocaine itself — which, as tangible evidence, would normally be the subject of a motion to suppress — to the officers’ testimony regarding what they had observed of appellant’s conduct as providing a likely explanation of how the cocaine happened to be under the seat of the patrol car. Moreover, the wording of the oral motion (quoted, supra), when read in context, seems clearly to address the tangible evidence; that is, the cocaine itself. Thus appellant is attempting by this argument to raise on appeal an issue not raised at trial. “It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.” Brantley v. State, 177 Ga. App. 13, 14 (338 SE2d 694) (1985).

In the fact situation of the instant case we find that the arresting officer had ample reason, first, to stop the car; and, second, to detain its occupants and take them in for questioning. The detention of appellant was therefore not illegal, and the tangible evidence discovered in a place he had just vacated was admissible at trial. Although such evidence may be classified as circumstantial rather than direct, we conclude that, with all the other evidence taken into account, there is no other reasonable hypothesis to account for the cocaine’s presence where it was found other than that appellant had placed it there. See OCGA § 24-4-6. The trial court did not err in denying appellant’s oral motion to suppress.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.

         Ordinarily, a motion to “suppress” testimony is denominated a “Motion to Strike.” See, e.g., Bobo v. State, 153 Ga. App. 679 (266 SE2d 247) (1980).


text:
    75431.
    MATHIS v. THE STATE.
    (361 SE2d 856)
   Deen, Presiding Judge.

A Ms. Hightower, occupant of a first-floor apartment in a DeKalb County complex, was lying in bed watching television between 1:00 and 2:00 a.m. on June 8, 1986, when her dog barked and looked toward the open, unscreened window located about three feet from the head of the bed. Ms. Hightower turned towards the window and saw the head and upper torso of a man above the windowsill, his hands resting on the sill. In the light emanating from the television and from a light on the complex grounds near her apartment, the woman could see that the man in the window was black and was wearing a blue or green “hospital-type” shirt.

Upon realizing that he was observed, the man jumped to the ground, and Ms. Hightower ran to the window and shouted that she had called the police. The man began running away, but not before his intended victim had noticed that he was wearing blue jogging pants with a white stripe. She then called the police and the resident manager, and a police officer arrived shortly thereafter. He discovered a kitchen chair positioned beneath the bedroom window but was unable to locate the intruder; he then left to resume his regular duties. About twenty minutes later the resident manager knocked on Ms. Hightower’s door and asked her to come out to the parking lot and look at a man whom one of the other tenants had apprehended. When she got to the parking lot, Ms. Hightower saw a police officer (not the same one who had responded to her call) and a number of tenants standing around a black man who was wearing a blue or green shirt, blue pants, and handcuffs, and was lying on the ground. She unhesitatingly identified this man as the person who had attempted to enter her window; she subsequently identified appellant Mathis at trial as the man she had seen at her window.

Immediately after making her on-site identification, Ms. High-tower, while still at the apartment complex parking lot, learned that Ms. McLaurin, also a resident of the complex, had just identified the man on the ground as the one who, within a few minutes of the time the intruder had fled from Ms. Hightower’s window, had entered her lighted bedroom, beaten her, thrown her down, stabbed her with a metal table fork, and run his hands over her body in what she interpreted as an attempt to rape her — an attempt she had foiled only by repeatedly kicking and hitting him and by finally managing to unlock her front door and run out onto the grounds. At trial Ms. McLaurin positively identified appellant Mathis as her assailant. She testified that she had had ample light in which to see the intruder during the five to ten minutes of her struggle with him. Ms. Hightower also testified that she had had ample light in which to see the person at her window.

Testimony adduced at trial showed that residents of nearby apartments had come to Ms. McLaurin’s aid after she had burst screaming from her front door, and that they had seen emerging from her door a few moments later a black man wearing clothes matching the descriptions given by Ms. Hightower and Ms. McLaurin. The neighbor who had actually chased down and apprehended the intruder testified that he identified his quarry by the clothing description given him by another neighbor who had seen, at close range, the man leaving the McLaurin apartment, and that, once he spotted him running along the back of the apartment, he never lost sight of him. This witness, too, identified appellant at trial as the man whom he had chased, captured, and brought back to the parking lot, where both of the intended victims subsequently identified him as the intruder.

A DeKalb County jury found appellant guilty as charged on Count 1 (burglary: unauthorized entry with intent to commit a theft), Count 2 (burglary: unauthorized entry with intent to commit the felony of aggravated assault), Count 3 (burglary: unauthorized entry with intent to commit the felony of rape), and Count 4 (aggravated assault: assault with a deadly weapon). On Count 5 (aggravated assault: assault with intent to rape) the jury found appellant guilty of the lesser offense of simple battery. Appellant was sentenced to twenty years on the first three counts; twenty years on Count 4; and twelve months on Count 5. The sentence on Count 4 was to be served consecutively to that on Counts 1 through 3, and the sentence on Count 5 was to run concurrently with that on Count 4. After denial of his motion for new trial on the general grounds, Mathis filed an appeal with this court, enumerating as error the general grounds and seven additional alleged errors. Held:

1. Appellant first asserts the general grounds as the basis for his assignment of error to the trial court’s denial of his motion for new trial (enumerations 1-3). Our examination of the trial transcript and the record indicates that the proceedings below were conducted in a correct and regular manner and that the evidence adduced was sufficient to authorize the rational trier of fact to find appellant guilty on Counts 1 through 4, and on Count 5, to find appellant guilty not of aggravated assault (assault with the intent to rape), but of simple battery as a lesser included offense. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Division 7, infra. As to the weight of the evidence, the appellate court does not weigh the evidence, but considers only its sufficiency. Stewart v. State, 180 Ga. App. 266 (349 SE2d 18) (1986). These requirements were satisfied in the instant case, and these enumerations are without merit.

2. Our close reading of the trial transcript reveals that the trial court ruled correctly in refusing to suppress either the on-site pretrial identification of appellant as the perpetrator of the crimes charged, or the trial testimony in which appellant was identified by both victims and by other witnesses. See United States v. Wade, 388 U. S. 218 (87 SC 1926, 18 LE2d 1149) (1967). The sixth and seventh enumerations of error have no merit.

3. The challenged jury instruction regarding “reasonable doubt” and “moral and reasonable certainty” is a correct statement of the law and constitutes a part of the jury charge customarily given in criminal trials. See, e.g., Moore v. State, 170 Ga. App. 698 (318 SE2d 172) (1984). The eighth enumeration of error is patently without merit.

4. Defendant’s requested jury instruction No. 3 concerns identification of the defendant as the perpetrator of the crime or crimes charged. Examination of the transcript shows that the trial court gave a full and correct charge on this subject, expressing the same substance as that requested by appellant and employing essentially the same language, but presenting it in more concise form. If the trial court gives a full and correct charge on an issue warranted by the evidence and covers the substance of what is requested, it is never error to decline to give the charge in the exact language requested. Hand v. Hand, 244 Ga. 41 (257 SE2d 507) (1979); DeBerry v. State, 241 Ga. 204 (243 SE2d 864) (1978). The ninth enumeration is likewise devoid of merit.

5. Appellant has failed to make a showing of harm suffered as a result of the trial court’s permitting the prosecution to use Ms. McLaurin’s lamp to demonstrate to the jury how much light there was in her apartment when her assailant entered. Even if, arguendo, this use of demonstration evidence were error, it would not be reversible because no prejudice to the defendant was shown to have ensued therefrom. Wyatt v. State, 179 Ga. App. 327 (346 SE2d 387) (1986). Moreover, admission of demonstration evidence is within the trial court’s sound discretion. Reese v. State, 139 Ga. App. 630 (229 SE2d 111) (1976). The tenth enumeration is also devoid of merit.

6. Turning now to appellant’s second enumeration of error, we find that the transcript and record reveal that the trial court correctly regarded the offenses charged in Counts 1 through 3 as having merged, and that he imposed a single 20-year sentence on all three of these counts — not on each count separately. This enumeration is therefore also without merit.

7. As to Counts 4 and 5, appellant received, respectively, a 20-year sentence on the charge of aggravated assault (Count 4, assault with a deadly weapon, OCGA § 16-5-2 (b)) and a twelve-month sentence for simple battery as a lesser offense included in the charge of aggravated assault (Count 5, assault with intent to rape, OCGA § 16-5-21 (a)), the two sentences to run concurrently. Appellant alleges that this part of the sentence is erroneous, in that Counts 4 and 5 merge and warrant the imposition of but a single sentence.

In analyzing this contention, we note at the outset that in the instant case appellant beat and battered Ms. McLaurin and ran his hands along her body in a sexually suggestive manner. Simple battery requires actual physical contact or harm; assault, simple or aggravated, does not require actual physical contact or harm, but rather the apprehension of harm. OCGA §§ 16-5-20; 16-5-21. Battery is therefore not necessarily included in aggravated assault, as a matter of law, but the facts in a given situation may be such that it is included as a matter of fact. Tuggle v. State, 145 Ga. App. 603 (244 SE2d 131) (1978). In such a fact situation the propriety of finding the defendant guilty of simple battery when he is charged with aggravated assault depends on “whether the language of the indictments is sufficient to encompass actual physical contact or harm as required by the battery statute, [OCGA § 16-5-20], so as to authorize conviction ... for simple battery.” Tuggle, supra at 604. Count 5 of the indictment against Mathis charges him with “the offense of AGGRAVATED ASSAULT, for that the said accused person . . . did make an assault upon the person of Zola McLaurin with the intent to rape the said Zola McLaurin.” OCGA § 16-6-1 (a) provides: “A person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will.” “Carnal knowledge” necessarily implies physical contact, or “bodily connection.” Black’s Law Dictionary, 5th ed. (1979), p. 193. Attempted rape requires a “substantial step” towards commission of the offense. OCGA § 16-4-1. In the case sub judice the beating and suggestive stroking of the body would constitute a “substantial step” such as to authorize conviction of attempted rape. Cf. Helton v. State, 166 Ga. App. 662 (305 SE2d 592) (1983).

Simple battery is committed when the perpetrator “either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another.” OCGA § 16-5-23. The beating and suggestive stroking of Ms. McLaurin constitute conduct which fits the statutory requirements for making out the offense of simple battery as well as attempted rape.

“Where the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other. . . .” OCGA § 16-1-7. “A crime is . . . included when: (1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury ... or a lesser kind of culpability suffices to establish its commission.” OCGA § 16-1-6.

Decided October 5, 1987.

Reuben A. Garland, Jr., for appellant.

Robert E. Wilson, District Attorney, John H. Petrey, Elisabeth G. MacNamara, Assistant District Attorneys, for appellee.

The language of the indictment, supra, is plainly sufficient to include simple battery; and therefore, as a matter of fact, simple battery in the instant case is a lesser offense included in the charge of aggravated assault. Appellant is therefore correct in enumerating as error the imposition of separate sentences for Counts 4 and 5, as the lesser offense is merged in the greater.

In order to warrant reversal of the judgment, however, the appellant must show that he has suffered actual harm as the result of the error. Wyatt v. State, supra. In the instant case, as a practical matter, appellant has suffered no harm, as he must in any event, after completing the twenty-year sentence on Counts 1-3, serve the twenty-year sentence with which the erroneous twelve-month sentence was to run concurrently. We must therefore remand this case to the trial court for expunction of the simple battery conviction and amendment of the sentence.

8. We note that appellant cites authority only for his sixth, seventh, and ninth enumerations of error.

Judgment affirmed in part and reversed in part; case remanded with direction to amend the sentence.

Birdsong, C. J., and Pope, J., concur.


author: Deen, Presiding Judge. Pope, Judge,

text:
    74392.
    BRADFORD v. THE STATE.
    (361 SE2d 838)
   Deen, Presiding Judge.

Michael Bradford brings this appeal from his conviction and first offender sentence of possession of more than an ounce of marijuana.

1. Appellant urges as error the admission into evidence of contraband which was located by several private citizens who were known as “reserve deputies” and asked by the sheriff to aid the county deputies in the search of a large area which was the curtilage of appellant’s residence. The search was carried out pursuant to a search warrant. The “reserve deputies” worked under the supervision and observation of the county deputies. They were instructed not to handle any contraband they discovered but rather only to alert the officers when it was located. Given the limitations placed upon the “reserve deputies” and the evidence presented that they complied with them, we find no violation of the provisions of OCGA § 17-5-24, which states that the search warrant “shall be directed for execution to all peace officers of this state.”

2. The trial court was not required to grant appellant’s motion to reveal the identity of the informant. Disclosure is not required where an informant acts as a mere tipster. Roden v. State, 181 Ga. App. 287, 290 (351 SE2d 713) (1986). As the evidence showed that the informant merely supplied information upon which the warrant was obtained and was not involved in nor witnessed the crime, the court correctly held the informant’s identity was privileged. Dyer v. State, 162 Ga. App. 773 (293 SE2d 42) (1982).

3. The information provided to the magistrate to support the issuance of a search warrant was sufficient under the “totality of the circumstances” analysis as set forth in State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). “ ‘The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth . . . before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis” for concluding that probable cause existed.’ ” Cichetti v. State, 181 Ga. App. 272, 273 (351 SE2d 707) (1986).

The affidavit in the instant case stated that the informant saw marijuana at the defendant’s residence in the past 48 hours, and that “[t]he confidential informant is a resident of Dade County and has been for the past 15 years. And has given reliable information in the past.” The affidavit was supplemented by the sworn testimony of a deputy sheriff who provided the details of the informant’s observation: there were lights in a room where appellant was growing marijuana; marijuana was buried in a wooded area near appellant’s house, and appellant had sold marijuana. Considering the affidavit and the sworn statement together, while they are not a model of perfection for forming the basis to support the issuance of a warrant, do meet the test set forth in Cichetti v. State, supra at 273, and the issuing magistrate could have found “a substantial basis for concluding that there was a ‘fair probability that contraband or evidence of a crime [would] be found in a particular place.’ ” Using the common-sense approach under the totality of circumstances rule, it is acknowledged that this is a type of subjective finding by the court on a case by case basis. In making a judgment call here, seemingly we must “quibble as little as possible on words, and go directly to the substance.” Humphrey v. Copeland, 54 Ga. 543 (1875). There is enough substance here; therefore, the judgment should be affirmed.

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Carley and Sognier, JJ., concur. Pope, Benham and Beasley, JJ., dissent.

Pope, Judge,

dissenting.

In State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984), our Supreme Court followed the “totality of the circumstances” analysis enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), for resolving the issue of probable cause to issue a search warrant. That is, “ ‘[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit [and any oral testimony] before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.’ ” (Punctuation omitted.) State v. Stephens, 252 Ga. at 182, supra, quoting Illinois v. Gates, 462 U. S. at 238-239, supra. See also Lewis v. State, 255 Ga. 101 (2) (335 SE2d 560) (1985). As aptly noted by our Supreme Court, the rule of Illinois v. Gates is, at least, a subjective one, and “[o]ne judge’s ‘probable cause’ can be another judge’s ‘inarticulable suspicion’. . . .” State v. Stephens, 252 Ga. at 184, supra. Bearing this in mind, I am nevertheless unable to concur in the perfunctory analysis employed by the majority which does nothing more than adopt the magistrate’s determination that probable cause existed for issuance of the search warrant in this case.

The subject search warrant accused defendant and his wife of “willingly and knowingly [possessing at their residence] a green leafy substance believed to be marijuana [weighing] more than one ounce.” The affidavit described the location and physical characteristics of defendant’s residence and stated that a confidential informant “did see the . . . marijuana at the . . . described residence in the past 48 hours. The confidential informant is a residen[t] of Dade County and has been for the past 15 years [and] has given reliable information in the past.” Additionally, the affiant testified before the magistrate that “the information that [she] had received [indicated] that [defendant and his wife] were growing marijuana, and . . . also had marijuana buried in a wooded area by [their] house, and that they had sold marijuana . . . [and the informant] had seen the lights and everything where [defendant and his wife] had been growing marijuana.”

“[U]nder the ‘totality of the circumstances’ analysis, we must consider the affidavit [and oral testimony] in [their] entirety, giving significance to each relevant piece of information and balancing the relative weights of all the various indicia of reliability and unreliability attending the tip. [Cit.] ‘Although in a particular case it may not be easy to determine when an affidavit [and accompanying oral testimony demonstrate] the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.’ [Cit.]” State v. Hockman, 171 Ga. App. 504, 505-506 (320 SE2d 241) (1984). Nonetheless, attesting officers and magistrates must make every effort to see that supporting affidavits and sworn testimony reflect the maximum indication of reliability whenever and wherever that shall be feasible. State v. Stephens, 252 Ga. at 184, supra.

“The rule in Georgia has been that an affidavit supporting a search warrant may be based on hearsay information as long as there is a substantial basis for crediting the hearsay. [Cit.]” Lewis v. State, 255 Ga. at 105, supra. See, e.g., Wells v. State, 180 Ga. App. 133 (3) (348 SE2d 681) (1986); State v. Farmer, 177 Ga. App. 18 (338 SE2d 489) (1985); Mize v. State, 173 Ga. App. 327 (1) (326 SE2d 782) (1985). A confidential informant’s veracity (or reliability) and the basis of his purported knowledge are “closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is probable cause to believe that contraband or evidence of a crime is located in a particular place. It is enough, for purposes of assessing probable cause, that corroboration through other sources of information reduced the chances of a reckless or prevaricating tale, thus providing a substantial basis for crediting the hearsay.” (Citations and punctuation omitted.) State v. Hockman, 171 Ga. App. at 506, supra.

The basis of the confidential informant’s knowledge in this case is his personal observation of marijuana at defendant’s residence. Beyond the description of the residence, however, this information is provided in general terms rather than with particularity. Compare, e.g., Futch v. State, 178 Ga. App. 115 (1) (342 SE2d 493) (1986); Smith v. State, 135 Ga. App. 424 (218 SE2d 133) (1975). Moreover, the record is entirely devoid of any showing of the informant’s reliability. “It is . . . well established that such reliability is not [shown] by the mere, unsupported assertion that the informant has provided reliable information in the past. [Cits.]” Felker v. State, 172 Ga. App. 492, 495 (323 SE2d 817) (1984), cert. den., 471 U. S. 1102 (1985). Also, there is no evidence that the informant in this case was a “concerned citizen” or that he was known to either the attesting officer or the magistrate. Compare, e.g., Lewis v. State, 255 Ga. at 105, supra; Futch v. State, 178 Ga. App. at 117, supra (concurring opinion). Finally, the record discloses no independent corroboration of the informant’s tip, and “this must be regarded as an extremely significant omission.” Felker v. State, 172 Ga. App. at 495, supra. Compare, e.g., State v. Stephens, 252 Ga. 181, supra; Mosley v. State, 180 Ga. App. 30 (1) (348 SE2d 555) (1986); Wilbanks v. State, 176 Ga. App. 533 (3) (336 SE2d 312) (1985), cert. den., 89 LE2d 728 (1986); State v. Hockman, 171 Ga. App. 504, supra.

Decided September 16, 1987

Rehearing denied October 6, 1987.

Christopher A. Totvnley, for appellant.

David L. Lomenick, Jr., District Attorney, for appellee.

It is now well established that neither the basis of an informant’s knowledge, nor evidence of his veracity, nor corroboration of these elements is an entirely separate and independent requirement to be exacted in every case, but rather these elements are simply useful in illuminating the commonsense, practical question whether there is probable cause to believe that contraband or evidence of a crime is located in a particular place. Cichetti v. State, 181 Ga. App. 272 (2) (351 SE2d 707) (1986); State v. Farmer, 177 Ga. App. at 19, supra. Applying the legal principles set out above to the facts of the case at bar, I find no substantial basis for crediting the hearsay information provided by the confidential informant and, thus, no probable cause for the issuance of the search warrant. Accord Felker v. State, 172 Ga. App. 492 (4), supra. It follows that defendant’s motion to suppress the evidence seized as a result of the subject warrant should have been granted, and, accordingly, I dissent.

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


author: Pope, Judge.

text:
    74474.
    LANEY v. THE STATE.
    (361 SE2d 841)
   Pope, Judge.

Donna K. Laney brings this appeal from her conviction and sentence of misdemeanor involuntary manslaughter, OCGA § 16-5-3 (b). Held:

1. Appellant’s first enumeration of error asserts that a rational trier of fact could not have found her guilty beyond a reasonable doubt and that the trial court erred in denying her motion for directed verdict of acquittal. The record evidence showed that at approximately 1:30 a.m. on April 22, 1986 appellant was working alone at a convenience store in Carroll County when two young men entered. The two men went to the beer cooler in the back of the store, picked up two twelve-packs of beer each and started toward the door. As the first young man started out the door, appellant, who had taken a gun from under the counter near where she stood, fired a shot which struck the young man in the head causing his death. The chief medical examiner for the State Crime Lab performed an autopsy on the victim and gave his opinion that “the individual who was firing [was] to the side and back of the [victim] and was firing in an upward direction.”

The events leading up to the victim’s death showed that the victim and his brother (the other young man who entered the convenience store) were riding with three other young men from Carrollton to Douglasville. It was suggested that the group steal some beer, although one of the group was old enough to purchase it and had the money to do so, because they assumed beer sales ceased at midnight. The victim and his brother decided to enter the store and take the beer, and they were then let out on a dirt road a short distance from the store. After they had entered the store and removed the beer from the cooler, the victim and his brother headed directly for the door without looking at or speaking to appellant. While at the cooler, the victim said to his brother in a soft voice, “[L]et’s get something for our thirst.” The victim opened the cooler door and said, “I’ll get this and you get that.” The cooler was more than 34 feet from the counter where appellant stood, and a GBI agent estimated that the young men never got closer than ten feet from the counter. When the remainder of the group returned to the store a few minutes later to pick up the victim and his brother, they discovered the victim’s body blocking open the door of the store. The victim’s brother had exited the store and was in hysterics. Appellant then came out of the store with the gun and warned them not to allow the victim’s brother to flee the scene.

Appellant testified that she recognized the victim’s brother as one of two young men who had a few days earlier entered another convenience store where she worked and had grabbed some beer and run out of the store without paying. A fellow employee had pursued them out the door and shot over their heads. She testified that on the day in question the young men entered the store but did not look at her; they went straight to the beer cooler. She stated: “I knew they were going to come in there and steal beer because they were . . . walking up and they were breathing real hard when they walked into the store. And I knew what was going to happen but I didn’t know what to do and then when I overheard them talking then that’s when I picked up the gun. ... I heard one say she’s by herself, let’s go ahead and rob her. ... I didn’t know if they had any weapons because I didn’t hear or see no weapons. ... I picked the gun up and I thought maybe if they seen the gun it would scare them and they’d just go out. . . . [W]hen they started towards . . . the door, they didn’t make no effort to stop at the counter or to pay. . . . [W]hen [the victim] got to the door I said don’t do it. And he seen me with a gun. He glanced over ... at me and he went ahead to push the door open and when he pushed the door, I had the gun in my hand and then I was trying to shoot out the door and thought maybe it would scare him and they would just go on. But instead, it hit him. ...” Appellant then dialed 911 and reported the shooting.

The thrust of appellant’s motion for directed verdict was her assertion that the homicide was justified in order to protect the property in her charge. OCGA § 16-3-24 provides: “(a) A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to prevent or terminate such other’s trespass on or other tortious or criminal interference with . . . personal property: ... (3) [belonging to a person whose property he has a legal duty to protect, (b) The use of force which is intended or likely to cause death or great bodily harm to prevent trespass on or other tortious or criminal interference with . . . personal property is not justified unless the person using such force reasonably believes that it is necessary to prevent the commission of a forcible felony.” (Emphasis supplied.) See also OCGA § 16-3-21 (a). “ ‘Forcible felony’ means any felony which involves the use or threat of physical force or violence against any person.” OCGA § 16-1-3 (6). Appellant urges that she had a right, as a matter of law, under the facts in this case to use deadly force because the victim and his brother were committing a robbery upon her at the time of the shooting. We are unable to agree that the facts demand such a finding.

Clearly, a robbery may be resisted by armed force resulting in the killing of the perpetrator provided the circumstances were sufficient to excite the fears of a reasonable man that such an offense was about to be committed. E.g., Daniel v. State, 187 Ga. 411 (2) (1 SE2d 6) (1939), overruled on other grounds, McMichael v. State, 252 Ga. 305, 309 n. 7 (313 SE2d 693) (1984). See generally Brown v. State, 139 Ga. App. 466 (3) (228 SE2d 602) (1976). However, a directed verdict of acquittal is appropriate only where the evidence demands a verdict of not guilty. OCGA § 17-9-1 (a). The evidence of record showed that although appellant purportedly heard the victim and his brother discuss robbing her, the victim’s brother testified that the word “robbery” was never mentioned. The actions of the victim and his brother in the store could fairly be construed as indicating that they were going to do nothing more than take the beer from the cooler and walk out of the store without paying for it, i.e., theft by shoplifting (a misdemeanor or, at worst, a non-forcible felony), see OCGA § 16-8-14 (a), as opposed to robbery (a forcible felony), see OCGA § 16-8-40 (a). See also Hicks v. State, 232 Ga. 393, 403 (207 SE2d 30) (1974), holding that “force used in an attempt to escape with property taken by larceny does not transform the crime into robbery.” See generally Luke v. State, 171 Ga. App. 201 (1) (318 SE2d 833) (1984); Wallace v. State, 159 Ga. App. 793 (3) (285 SE2d 194) (1981). Appellant herself testified that she knew that these young men intended to steal beer when they first entered the store. Furthermore, based on her earlier experience at the other convenience store, she had reason to know what was going to happen.

It has always been recognized that the force used may be justified in preventing the commission of a felony when it will not justify the prevention of a mere misdemeanor. Henderson v. State, 136 Ga. App. 490, 493 (221 SE2d 633) (1975); Norrell v. State, 116 Ga. App. 479, 485 (157 SE2d 784) (1967). See also Johnson v. Jackson, 140 Ga. App. 252, 256 (230 SE2d 756) (1976), holding that it is unlawful to use deadly force to arrest, or to prevent the escape of, one who has committed a misdemeanor even though no other means are available. In a case such as the one at bar the motive of the slayer is for determination by the jury, and if it is claimed the homicide was committed under the fears of a reasonable man, it is for the jury to decide whether or not the circumstances were sufficient to justify the existence of such fears. Fudge v. State, 190 Ga. 340 (4) (9 SE2d 259) (1940); Sawyer v. State, 161 Ga. App. 479 (1) (288 SE2d 108) (1982), and cits.; Johnson v. Jackson, 140 Ga. App. at 257, supra. Likewise, the question of whether appellant used excessive force under the circumstances in this case was properly a matter within the province of the jury. See Hodge v. State, 153 Ga. App. 553 (265 SE2d 878) (1980). The weight and credibility of the evidence was for the jury, and it is apparent that the jury resolved the foregoing issues against appellant. We find that any rational trier of fact could have found appellant guilty as charged beyond a reasonable doubt. See Brown v. State, 150 Ga. App. 831 (1) (258 SE2d 641) (1979); Wood v. State, 146 Ga. App. 141 (245 SE2d 490) (1978); see also Mullins v. State, 157 Ga. App. 204 (1) (276 SE2d 877) (1981).

2. Appellant’s remaining enumeration assigns error to the trial court’s failure “to define the offense of robbery for the jury.” To paraphrase the holding in Wiseman v. State, 249 Ga. 559 (5) (292 SE2d 670) (1982), appellant in the case at bar relied on a defense of justifiable homicide. She contended that she was acting in self-defense or in the alternative that she was using the force necessary to prevent a forcible felony. These are justifications for homicide. See Division 1, supra. In order to intelligently consider the defense of justification, the jury must be informed as to what constitutes the forcible felony relied upon. “Therefore, when the prevention of a forcible felony is

charged as justification and the defendant requests a charge on the specific forcible felony of which there is evidence, it is error to fail to charge the elements of such a felony as it relates to justification.” (Emphasis supplied.) Id. at 561. See Teal v. State, 122 Ga. App. 532 (2) (177 SE2d 840) (1970). The record here contains no request to charge the offense of robbery. Moreover, the record also discloses that appellant responded in the negative to the trial court’s inquiry as to any exceptions to the charge. We thus have two procedural hurdles in reaching the merits of this issue.

First, “though present law exempts the defendant in a criminal case from the strict requirements imposed on litigants in civil cases to preserve an issue on the giving or the failure to give instructions to the jury ([OCGA § 5-5-24]) this does not relieve him from the necessity of requesting instructions except in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence. [Cits.]” Hardin v. State, 141 Ga. App. 115, 116-117 (232 SE2d 631) (1977); see OCGA § 5-5-24 (c). We find the error alleged to be substantial and harmful as a matter of law. See Wiseman, supra. See generally Central of Ga. R. Co. v. Luther, 128 Ga. App. 178 (1) (196 SE2d 149) (1973).

As to the second hurdle, a negative response to the trial court’s inquiry as to any exceptions to the charge generally results in a procedural default and a waiver of the right to challenge any portion of the trial court’s charge on appeal. E.g., Zant v. Akins, 250 Ga. 5 (2) (295 SE2d 313) (1982); Rann v. State, 183 Ga. App. 234 (3) (358 SE2d 644) (1987). However, we find the error here so “blatantly apparent” and “highly prejudicial” as to deprive appellant of her right to a fair trial and thus require reversal of her conviction and a new trial. See Barnett v. State, 178 Ga. App. 685 (1) (344 SE2d 665) (1986); cf. Maynard v. State, 171 Ga. App. 605 (2) (320 SE2d 806) (1984). But see Irvin v. Oliver, 223 Ga. 193 (2) (154 SE2d 217) (1967) (OCGA § 5-5-24 (c) refers only to the failure to make objection to the charge and not to those instances where the giving of an instruction, or the failure to give an instruction, is specifically acquiesced in by counsel); Mahomet v. State, 151 Ga. App. 462 (1) (260 SE2d 363) (1979), cert. den., 445 U. S. 943 (1980) (where counsel introduces evidence on a theory of defense and thereafter asks for no charge on a valid defense and responds to the trial court that he has no exceptions to the charge, an error in the charge is self-induced and will not be a ground for a new trial).

Judgment reversed.

Birdsong, C. J., and Deen, P. J., concur.

Decided September 22, 1987

Rehearing denied October 6, 1987

Gerald P. Word, for appellant.

Arthur E. Mallory III, District Attorney, William G. Hamrick, Jr., Assistant District Attorney, for appellee.


author: Benham, Judge.

text:
    74547.
    THE STATE v. VICKERY.
    (361 SE2d 678)
   Benham, Judge.

Appellee Vickery was arrested for speeding and driving under the influence by a Thunderbolt, Georgia, police officer who stopped appellee after the officer’s speed detection device indicated appellee was speeding. The officer and his radar unit were more than 500 feet from the corporate limits of Thunderbolt, heading eastward, while appellee was 350 feet within the corporate limits, heading in a westerly direction. When he smelled alcohol on appellee’s breath, the officer requested appellee to submit to a blood alcohol test, the results of which (.15 grams percent alcohol) caused the officer to charge appellee with DUI. Appellee sought to suppress the intoximeter results on the ground that the officer’s use of radar within 500 feet of the radar warning sign erected pursuant to OCGA § 40-14-6 violated the statute. The trial court reluctantly suppressed both the radar and intoximeter readings, and encouraged the State to file this appeal on the ground that the statute was susceptible to more than one interpretation.

OCGA § 40-14-6 requires every Georgia county and municipality using speed detection devices to erect signs at the intersection of every state highway and the county or municipal boundary, warning approaching motorists of the use of speed detection devices. The last sentence of the statute reads: “No such devices shall be used within 500 feet of any such warning sign erected pursuant to this Code section.” The case at bar poses the question: What is meant by the word “used” in the statute? Does the statute require that the speed detection device itself be more than 500 feet from the county or municipal boundary or does it forbid the penetration of the radar beam into the 500-foot zone? We believe the former interpretation to be more practical and more enforceable and, accordingly, reverse the trial court’s grant of appellee’s motion to suppress.

Adoption of appellee’s interpretation of the statute would create along the boundary of each county or municipality unlimited speed zones of up to 1,000 feet wherein speeding motorists would be immune from prosecution based on evidence gathered from speed detection devices used by county or municipal law enforcement officers. Those zones would exist where signs warning motorists of the use of speed detection devices were erected. Such unlimited speed zones at intersections of state highways and county or municipal boundaries serve no useful purpose and will not be condoned by this court. See OCGA § 40-14-6. In addition, we have previously held that where the county or municipality has not erected warning signs at every mandated intersection, “we are unwilling to hold that incomplete compliance with [the first sentence of OCGA § 40-14-6] requires exclusion of evidence gathered by use of a speed detection device.” Ferguson v. State, 163 Ga. App. 171 (1) (292 SE2d 87) (1982). See also Royston v. State, 166 Ga. App. 386 (304 SE2d 732) (1983).

Decided September 10, 1987

Rehearing denied October 6, 1987

Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellant.

George M. Hubbard III, for appellee.

The fear that our interpretation of the statute will be an impetus for local law enforcement officers to create speed traps is unfounded. OCGA § 40-14-9 prohibits the use of speed detection devices within certain distances of a reduction in speed limit, and OCGA § 40-14-7 provides an additional safeguard to the motoring public by requiring that the police vehicle using a speed detection device be visible to approaching motorists for at least 500 feet.

Judgment reversed.

Banke, P. J., and Carley, J., concur.


author: Benham, Judge. Carley, Judge,

text:
    74601.
    ST. PAUL FIRE & MARINE INSURANCE COMPANY v. ALBANY EMERGENCY CENTER, INC. et al.
    (361 SE2d 687)
   Benham, Judge.

Appellant insurance company issued a policy of liability insurance covering appellee Albany Emergency Center, several of its employees, and Dr. George Rawlins. After appellees Addison, Whiddon, and Dyson filed suits alleging negligence on the Rart of Albany Emergency Center, appellant filed this action for declaratory judgment, seeking a ruling that the non-cooperation of its insured, Dr. Rawlins, relieved appellant of its contractual duty to defend the malpractice actions filed against its other insured, the emergency center. The trial court granted the motion for summary judgment filed by appellees Addison, Whiddon, and Dyson, and denied that of appellant. This appeal followed.

The policy of liability insurance issued by appellant contained a clause requiring the cooperation of the insured in defending a suit: “If there’s an accident or incident covered under this policy you must . . . [c]ooperate and assist us in securing and giving evidence, attending hearings and trials, and obtaining the attendance of witnesses.” Cooperation clauses have been held to be valid in Georgia, and the failure of an insured or one who claims the benefit of insurance under the policy to cooperate may defeat recovery on the policy. State Farm &c. Ins. Co. v. Wendler, 115 Ga. App. 452, 455 (154 SE2d 772) (1967). See also H. Y. Akers & Sons v. St. Louis Fire &c. Ins. Co., 120 Ga. App. 800 (1) (172 SE2d 355) (1969). It is undisputed in the case at bar that Dr. Rawlins, named with the Albany Emergency Center as an insured in the liability policy issued by appellant, did not cooperate with appellant in its investigations of the three incidents from which the various lawsuits sprang. In point of fact, appellant was not able to contact Dr. Rawlins, despite investigative efforts to locate him. It is also undisputed that Dr. Rawlins was not named as a defendant in any of the negligence actions filed against the center. Appellant maintains that the non-cooperation of Dr. Rawlins, an insured, relieves appellant of its contractual duty to defend Albany Emergency Center, another insured. We disagree.

In essence, the question before this court is: Whose cooperation is mandated by a cooperation clause in a policy of liability insurance? Our conclusion is that cooperation is required of anyone who reaps the benefit from the shouldering of the defense by the insurer, that is, one named as a defendant in a lawsuit or one who claims the benefit of insurance under the policy. A person driving an insured vehicle of another with permission, thereby becoming an additional insured under the terms of the insurance policy and entitled to insurance coverage, “owes the duty to cooperate with the insurance company to the same extent and in the same degree as would the named insured had he alone been involved in a collision. [Cits.]” State Farm &c. Ins. Co. v. Burden, 115 Ga. App. 611, 615 (155 SE2d 426) (1967). The insured has an obligation to cooperate with the insurer regarding claims or suits brought against him. See St. Paul Fire &c. Ins. Co. v. Gordon, 116 Ga. App. 658, 660 (158 SE2d 278) (1967). Although Dr. Rawlins was an insured under the liability insurance policy issued by appellant, he did not stand to reap any benefit from the assumption of the defense by appellant since Dr. Rawlins was not a defendant in the underlying actions. Another of appellant’s insureds, the Albany Emergency Center, was named as a defendant in each of the three negligence actions, and it was because of the emergency center’s involvement that appellant undertook the defense of the actions. Appellant’s position would require one who claims the benefit of insurance under the policy to secure the cooperation of all those named in a liability insurance policy, regardless of whether they were involved in the underlying tort, or suffer the removal of the insurer from the defense of the lawsuit. A cooperation clause has never been read so broadly as to require cooperation of anyone named in a policy of insurance issued by the insurer, regardless of the holder’s relationship to the lawsuit, and we decline to do so now.

Judgment affirmed.

Banke, P. J., concurs. Carley, J., concurs specially.

Carley, Judge,

concurring specially.

I agree with the majority’s affirmance of the trial court’s determination that there has not been a breach of the cooperation clause of the insurance policies so as to relieve the insurer from defending the action. However, I cannot agree with the narrow scope which the majority ascribes to an insurance policy cooperation clause in connection with a case where one of the named insureds totally refuses to cooperate with the insurer. The majority would appear to limit in absolute fashion the necessity of cooperation from an insured who is not a defendant in the action or whose conduct is not alleged to be a basis of the cause of action.

While I do not agree with the majority’s interpretation of the ambit of a cooperation clause, the record in this case amply supports the findings and conclusions of the trial court. In this connection, the bench trial was conducted in conjunction with a stipulation of facts. It is my opinion that one of the most germane stipulations agreed to by counsel for both parties is as follows: “All of the Albany Emergency Center, Inc. personnel who actually saw or treated the patients for whom claims are made in the aforementioned lawsuits against Albany Emergency Center, Inc. are available to both counsel for Plaintiff and Defendants in the above-styled action. Additionally, the medical records of the spouses of Helen Whiddon and June S. Addison, as well as the medical records of Barbara Dyson are available.” In fact, one of the essential findings of fact by the trial court was phrased in substantially the same language as this stipulation.

The courts have recognized “the obligation of an insured to [cooperate] under this or similar provisions in liability policies, and the insurer’s right to decline to make a defense and to claim its relief of obligation to make payment when the insured fails to cooperate. . . . The [non-cooperation] must, of course, have been material — not merely technical or inconsequential in nature.” H. Y. Akers & Sons v. St. Louis Fire &c. Ins. Co., 120 Ga. App. 800, 802 (172 SE2d 355) (1969). In this case, the trial court was authorized to find no material breach of the cooperation clause. However, were the evidence to show that Dr. Rawlins not only absconded but, as sole shareholder of the named defendant, caused the medical records to disappear or by his conduct interfered with the availability and willingness of the medical center employees to testify, it is my opinion that the result in this case would be different.

Decided September 15, 1987

Rehearing denied October 6, 1987

William U. Norwood III, for appellant.

Del Percilla, Jr., Carl A. Bryant, for appellees.

Accordingly, I do agree that the judgment of the trial court should be affirmed, but I do so on the basis of the well articulated findings and conclusions of the trial court and do not concur in all that is said in the majority’s opinion.


author: Banke, Presiding Judge.

text:
    74849.
    MARTIN et al. v. CHICAGO INSURANCE COMPANY.
    (361 SE2d 835)
   Banke, Presiding Judge.

At issue in this appeal is the enforceability of a contractual provision appearing in a policy of motor vehicle liability insurance purporting to exclude coverage for “any person . . . [w]ho intentionally causes bodily injury or property damage.”

The appellants, Anita Martin and Valerie Aeree, were injured when Vanessa Moulder, driving an automobile insured by the appellee, intentionally ran into them as they were standing on a sidewalk outside a nightclub. The appellants had previously been socializing inside the nightclub with two other women. Ms. Moulder had later arrived and involved herself in an argument with one of the two companions, Felicia McCommons. During the course of this argument, all five women left the nightclub and went into the parking lot. At some point, the club’s security guard instructed Ms. Moulder and perhaps one or more of the other women to leave the premises, whereupon Ms. Moulder got into the insured vehicle and rammed it into the two appellants as they were standing on the curb in the company of Ms. McCommons. Although Ms. McCommons was the apparent object of the assault, she escaped injury, while each of the appellants suffered a broken leg.

The appellee insurer compensated the appellants for their medical expenses and lost wages pursuant to the personal injury protection (“no-fault”) provisions of the insurance policy but declined to acknowledge any further liability based on the policy exclusion at issue. In response to a personal injury action brought against Ms. Moulder by the appellants, the company filed the present action to obtain a declaratory judgment sanctioning its reliance on the policy exclusion and relieving it of any responsibility for defending Ms. Moulder in the personal injury action.

The issue of whether Ms. Moulder inflicted the injuries accidentally or intentionally was tried before a jury, which determined by special interrogatory verdict that her conduct had been intentional. Based on this verdict, the trial court granted the declaratory relief sought by the appellee, ruling that the policy did not cover the appellants’ injuries and that the appellee had no further obligation or duty to defend the personal injury action. This appeal followed. Held:

The Georgia Supreme Court has declared that it “is the public policy of our state, enunciated in the advent of compulsory motor vehicle liability insurancef,] that innocent persons who are injured should have an adequate recourse for the recovery of their damages.” Anderson v. Southeastern Fidelity Ins. Co., 251 Ga. 556, 557 (307 SE2d 499) (1983). In Anderson, the Court ruled, in furtherance of this policy, that an exclusion pertaining to “any racing event, speed contest or exhibition” would not operate to exclude coverage for injuries sustained in an impromptu “drag race.” Similarly, the Supreme Court held in Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335 (329 SE2d 136) (1985), that, to the extent of the minimum liability coverage mandated by our compulsory insurance law, an exclusion pertaining to injuries resulting from the use of an automobile “while attempting to avoid apprehension or arrest” was unenforceable against an innocent motorist injured by an insured driver during the course of a police chase. See also Twyman v. Robinson, 255 Ga. 711 (342 SE2d 313) (1986) (extending to self-insurers the uninsured motorist coverage requirements applicable to motor vehicle liability insurers); Young v. Allstate Ins. Co., 248 Ga. 350 (282 SE2d 115) (1981) (holding that the failure of an assigned-risk insured to comply with a notice requirement contained in his policy would not operate to relieve the insurer from liability to an injured third party).

By its express terms, the statute setting forth the minimum coverages required to be contained in policies of motor vehicle liability insurance issued or delivered in this state neither prohibits nor permits the exclusion of coverage for damages resulting from intentional misconduct on the part of the insured. See OCGA § 33-7-11 (a) (1) (A). However, the minimum coverage requirements set forth in this Code section are expressed in terms of the word “accident,” a term which is defined by the Motor Vehicle Safety Responsibility Act (OCGA § 40-9-1 et seq.), where it is used in a virtually identical context, to mean the “involvement of a motor vehicle in any manner in which any person is killed or injured.” OCGA § 40-9-2 (1). We can discern no reason why this same definition, which quite clearly encompasses intentional as well as unintentional injuries, should not be applied to the construction of the word “accident” as it appears in OCGA § 33-7-11 (a) (1) (A). Indeed, this court has previously held that “whether or not... an occurrence is accidental [within the contemplation of a policy of motor vehicle accident insurance] must be decided by viewing it through the eyes of the victim, and if as to the latter it is unforeseen and not caused by his own misconduct, it is, although an intentional assault, accidental as to him. [Cits.]” Amer. Protection Ins. Co. v. Parker, 150 Ga. App. 732 (3) (a) (258 SE2d 540) (1979). Accord Ga. Farm &c. Ins. Co. v. Burnett, 167 Ga. App. 480, 481-482 (306 SE2d 734) (1983).

In furtherance of this state’s public policy, as announced by the Supreme Court, of according to innocent persons injured in motor vehicle accidents adequate recourse for their injuries, we hold that the word “accident,” as used in our compulsory motor vehicle liability insurance statute, encompasses intentional as well as unintentional injuries inflicted upon innocent persons by drivers whose liability would otherwise be covered by the policy. We consequently hold that to the extent of the minimum liability coverages mandated by OCGA § 33-7-11 (a), the policy exclusion at issue in the present case is unenforceable with respect to the injuries for which the appellants seek to recover.

Judgment reversed.

Carley and Benham, JJ., concur.

On Motion for Rehearing.

On motion for rehearing, the appellee insurer argues that we have erroneously assumed as a matter of law that the appellants were “innocent victims” of the assault, notwithstanding the presence of “a factual dispute as to whether appellants were actively involved in the ruction at the nightclub which immediately proceeded (sic) the incident and thus encouraged Vanessa Moulder in acting the way she did.”

Our holding in this case is that an injury resulting from an intentional assault with a motor vehicle will be considered “accidental” from the standpoint of the injured person provided the injury was “not caused by his own misconduct.” Amer. Protection Ins. Co. v. Parker, supra, 150 Ga. App. at 733. The proposition that by quarreling with Ms. Moulder, the appellants “caused” her to assault them with her automobile is not one which we are prepared to entertain seriously. By such reasoning, any victim of an aggravated assault who had previously quarreled with the perpetrator could be considered a party to the offense.

We reject the appellee’s contention that our holding in the present case is inconsistent with Division 3 of the Supreme Court’s decision in Cotton States Mut. Ins. Co. v. Neese, supra. It was held there that the injured passengers of a vehicle which had been involved in a collision while its driver was attempting to elude a state patrolman would be entitled to recover insurance benefits if they were innocent victims, but not if they were “willing participants” in the chase. The appellants in the present case were obviously not “willing participants” in the use of the automobile which gave rise to their injuries.

Decided September 11, 1987

Rehearing denied October 6, 1987

David G. King, Patricia H. Sinback, for appellants.

Michael J. Gorby, for appellee.

The motion for rehearing is denied.


text:
    75027.
    75071.
    GABBIDON v. THE STATE. WILLIAMS v. THE STATE.
    (361 SE2d 861)
   Banke, Presiding Judge.

Williams and Gabbidon were convicted separately of possession of marijuana and possession of cocaine with intent to distribute in violation of the Georgia Controlled Substances Act. Williams was sentenced as a recidivist. Each has filed a separate appeal.

Williams was stopped by a state trooper while operating a rental vehicle in which Gabbidon was riding as a passenger. The trooper testified that Williams was impeding traffic in violation of OCGA § 40-6-184 by traveling 30 to 35 m.p.h. in a 55-m.p.h. zone and that the vehicle was also weaving within its lane of traffic. When Williams opened his door to exit the vehicle in compliance with the trooper’s request, the trooper smelled marijuana emanating from the interior of the car and also observed a clear bag in a compartment in the driver’s door containing what appeared and was ultimately proved to be marijuana. Both appellants were then searched, resulting in the seizure of substantial sums of money from both of them, as well as the seizure of a pouch containing marijuana from Gabbidon. The vehicle was also searched, resulting in the seizure of a 24- to 25-gram block of cocaine from beneath the rear seat of the vehicle and of two small packets of cocaine from over the sunvisor on the driver’s side of the vehicle. Also, a trace of the cocaine was found on a plate seized from the trunk of the vehicle. Held:

1. Because the vehicle had been rented by Williams’ wife, the appellants contend that there was insufficient evidence, under the equal access rule, to establish that they were in knowing possession of the contraband seized from the vehicle. The evidence established that the two appellants were related, Gabbidon being married to Williams’ niece, and that they had shared in the operation of the vehicle. Clearly, the evidence, considered as a whole, was sufficient to warrant the inference that they were in joint, knowing possession of the contraband being transported in the vehicle. Whether the purported equal access evidence was sufficient to rebut such an inference was for the jury to determine. See Moore v. State, 155 Ga. App. 149 (1) (270 SE2d 339) (1980). In addition, “ ‘[wjhere transactions involving relatives are under review slight circumstances are often sufficient to induce a belief that there was collusion between the parties.’ [Cits.]” Robinson v. State, 175 Ga. App. 769, 772 (334 SE2d 358) (1985). Reviewing the evidence in the light most favorable to the jury’s verdicts, we conclude it was sufficient to enable a rational trier of fact to find both appellants guilty beyond a reasonable doubt of the offenses of which they were convicted. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). It follows that the trial court did not err in denying the appellants’ motion for directed verdict of acquittal, nor in rejecting the general grounds of their motions for new trial.

2. The appellants contend that the trial court erred in denying their motions to suppress the evidence seized by the trooper, arguing that he had no reason to stop their vehicle. This contention is without merit. The officer testified that he stopped the appellants’ vehicle because it was impeding the flow of traffic and because it was weaving within its lane. Under such circumstances, the state trooper clearly was justified in at least making an investigatory stop of the vehicle pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). Accord Dickson v. State, 167 Ga. App. 685 (307 SE2d 267) (1983). Of course, after stopping the vehicle, the officer acquired probable cause to arrest the appellants and search the vehicle based on his immediate detection of the odor of marijuana and his observation of a bag of marijuana in plain view. Accord Parks v. State, 150 Ga. App. 446 (1) (258 SE2d 66) (1979). “The [plain view] doctrine will support a warrantless search and seizure if the agents are lawfully in position to obtain the view, the discovery is inadvertent, and the object viewed is immediately seen to be incriminating. [Cits.]” Dimick v. State, 178 Ga. App. 60, 61 (341 SE2d 914) (1986). It follows that the subsequent warrantless arrest and search were authorized.

3. Appellant Williams contends that the trial court erred in refusing to give his requested charge, taken from Davis v. State, 13 Ga. App. 142 (78 SE 866) (1913), to the effect that if the facts in evidence support two theories, one of guilt and the other consistent with innocence, the jury must acquit the accused. “This decision was thoroughly discussed and discredited in Nolen v. State, 124 Ga. App. 593, 594 (184 SE2d 674), and relegated to a role in cases ‘dependent solely upon circumstantial evidence.’ ” Booker v. State, 156 Ga. App. 40, 42 (4) (274 SE2d 84) (1980). In this case, as in Booker, supra, the jury was fully instructed both on the presumption of innocence and on the necessity of proving the appellant’s guilt beyond a reasonable doubt. It was not error for the trial court to refuse to give the requested charge.

Decided October 6, 1987.

Richard D. Phillips, for appellants.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

4. Appellant Williams’ contention that the jury, rather than the trial judge, should have decided the issue of whether he was a recidivist is without merit. See LaPalme v. State, 169 Ga. App. 540 (4) (313 SE2d 729) (1984).

5. The record clearly reflects that the state gave Williams “unmistakable advance warning that [his] prior convictions [would] be used against him at sentencing.” Anderson v. State, 176 Ga. App. 255, 256 (335 SE2d 487) (1985). Consequently, his final enumeration of error is without merit.

Judgments affirmed.

Carley and Benham, JJ., concur.


text:
    75126.
    PIPPIN v. THE STATE.
    (361 SE2d 864)
   Banke, Presiding Judge.

In a three-count indictment the appellant, Eugene Pippin, was charged with raping and sodomizing his aunt, Louise Pippin White, and committing aggravated assault against his father, Lewis Pippin. The appellant was found guilty of rape and sentenced to 20 years in prison. This appeal is from the denial of his motion for a new trial.

The state’s evidence showed that the appellant entered his 59-year-old aunt’s room while she was sleeping and raped and sodomized her. The appellant’s brother, who is mildly retarded and confined to a wheelchair, testified that the appellant had entered his room naked on the night in question and ordered him not to come out and that shortly afterwards he heard his aunt scream. Held:

1. In three separate enumerations of error, the appellant contends the conviction is unsupported by the evidence. Having reviewed the evidence in the light most favorable to the jury’s verdict, we conclude that it was sufficient to enable a rational trier of fact to find the appellant guilty of rape beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Wallace v. State, 178 Ga. App. 876 (344 SE2d 770) (1986).

Decided October 6, 1987.

Carl Greenberg, for appellant.

Robert E. Wilson, District Attorney, Susan Brooks, Elisabeth G. MacNamara, Linda W. Hunter, Assistant District Attorneys, for appellee.

2. The appellant contends that in imposing sentence the trial court improperly penalized him for having entered a not guilty plea. It is axiomatic that “ ‘[i]t is not error for the trial judge to impose a greater sentence upon a defendant after he has heard the evidence at trial than he might have imposed in conjunction with a guilty plea.’ [Cits.]” Hiers v. State, 179 Ga. App. 181, 182 (345 SE2d 900) (1986). Consequently, this enumeration is without merit.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    75364.
    LOVETT v. THE STATE.
    (361 SE2d 863)
   Banke, Presiding Judge.

Following a non-jury trial, Dean Lovett was convicted of criminal damage to property in the second degree. See OCGA § 16-7-23. On appeal, his sole contention is that the evidence was insufficient to support the conviction.

The damaged property consisted of furniture belonging to the appellant’s sister. At trial, the sister testified that she had a strained relationship with the appellant and his wife, that she had shut off the water to their trailer, and that in retaliation they had damaged a dresser and two chests she had loaned to them. The sister identified numerous photographs of the furniture and testified that both the “frames” and the drawers were damaged.

The appellant’s wife assumed sole responsibility for the damage to the drawers and pled nolo contendere to the charge of criminal damage to property in the second degree. At trial, the appellant conceded that he had put the “frames” in his backyard which adjoins his sister’s home but denied damaging them. There were no witnesses to the incident other than the appellant and his wife. Held:

It was not apparent from the photographs of the furniture introduced by the state that the “frames” had been damaged. Moreover, the evidence presented by the state was wholly consistent with the appellant’s testimony denying culpability for such damage as may have occurred. Circumstantial evidence which gives rise to a mere suspicion is not sufficient to convict. Hall v. State, 155 Ga. App. 211, 212 (270 SE2d 377) (1980). Even viewing the evidence in the light most favorable to the verdict, Veit v. State, 182 Ga. App. 753, 755 (357 SE2d 113) (1987), it cannot be concluded beyond a reasonable doubt that the appellant was responsible for any damage to the furniture. His conviction must consequently be reversed.

Decided October 6, 1987.

Shane M. Geeter, for appellant.

Joseph H. Briley, District Attorney, Al Martinez, Jr., Assistant District Attorney, for appellee.

Judgment reversed.

Carley and Benham, JJ., concur.


author: Sognier, Judge.

text:
    75039.
    BARBER v. WAUSAU UNDERWRITERS INSURANCE COMPANY.
    (362 SE2d 109)
   Sognier, Judge.

Eugene Barber brought suit against Wausau Underwriters Insurance Company to recover proceeds under a homeowner’s insurance policy for fire damage he sustained to his house and personalty. Wausau answered and counterclaimed, the major claim of which was decided on motion for summary judgment and is not before this court. The jury, in the trial of the case, by means of special interrogatories, returned a verdict finding that Barber “acted fraudulently or failed to comply with the conditions of the contract of insurance,” thereby voiding the insurance contract. Judgment on the verdict was entered in behalf of Wausau and Barber appeals from the trial court’s denial of his motions for a new trial and to set aside the judgment.

Appellant contends the trial court erred by denying his motions made on the general grounds. “ ‘We will not speculate as to what evidence the jury chose to believe or disbelieve; on appeal this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury’s verdict. [Cit.] Where the testimony of the plaintiff and the defendant is in conflict, the jury is the final arbiter [cit.], and after the verdict is approved by the trial judge, the evidence must be construed so as to uphold the verdict even where there are discrepancies. [Cits.]’ [Cit.]” Concrete Constr. Co. v. City of Atlanta, 176 Ga. App. 873, 874 (2) (339 SE2d 266) (1985).

There was testimony at trial that appellant refused to provide appellee with complete copies of his income tax returns as requested by appellee and refused to execute forms which would have allowed appellee to obtain copies of those documents from the federal and state governments. There was evidence that the damage to appellant’s home and property, for which he asserted a claim of $120,137.58, amounted to only $25,000. There was also evidence that appellant included in his claim under the policy with appellee items that were primarily insured by a third-party insurance company.

Decided October 7, 1987.

Michael C. Clark, for appellant.

Eugene Barber, pro se.

R. Dennis Withers, for appellee.

We find this and other evidence in the transcript sufficient to support the jury’s verdict that appellant either acted fraudulently or else failed to comply with the insurance policy provisions. Although appellant asserts that the judgment was contrary to law, citing Allstate Ins. Co. v. Baugh, 173 Ga. App. 615, 616 (1) (327 SE2d 576) (1985), that case fails to support appellant’s position. In Baugh, we affirmed the trial court’s denial of the insurer’s motion for directed verdict because there was a conflict in the evidence whether the insureds intended to mislead or defraud the insurer. Id. at 616 (1). The court there pointed out, by citation to a 1915 case, that the discrepancy between the value of the damaged personalty and the face amount of the policy (the former far exceeding the latter) constituted further evidence indicating a conflict in the evidence as to the insureds’ intent. In the case sub judice, however, the conflict in the evidence (which included testimony that the true value of the damages claimed had been inflated far in excess of the face value of the policy) was properly before the jury. Thus, we cannot say the trial court erred by denying appellant’s motions for a new trial and to set aside the judgment. See generally Citizens Jewelry Co. v. Walker, 178 Ga. App. 897, 898 (2) (345 SE2d 106) (1986).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    75052.
    WILLIAMS v. THE STATE.
    (361 SE2d 713)
   Sognier, Judge.

Appellant was convicted of armed robbery and aggravated assault, and he appeals.

1. Appellant alleges error in the trial court’s charge on aggravated assault, because instructing the jury that the knife involved in the assault was a deadly weapon was a comment on the evidence. The charge complained of, in pertinent part, was as follows: “Now, if you believe beyond a reasonable doubt that this Defendant in this count . . . did . . . knowingly, willfully and intentionally make an assault upon the person of Richard D. Venable with a knife, a deadly weapon in the manner in which it was used then and there, you’d be authorized to convict of the offense of aggravated assault.” Appellant argues that this charge invaded the province of the jury, because whether or not an instrument is a deadly weapon when used in a certain manner is a question for determination by the jury. This argument is without merit.

Decided October 7, 1987.

The indictment in this case charged appellant with committing an aggravated assault by assaulting Venable with a knife, “a deadly weapon, in the manner then and there used . . .” Hence, the trial court’s charge tracked the indictment, informing the jurors that if they believed beyond a reasonable doubt that appellant committed the offense in the manner alleged in the indictment, they were authorized to convict appellant of aggravated assault. A complaint about a portion of the charge which follows the language of the indictment is without merit. Weeks v. State, 58 Ga. App. 440 (1) (198 SE 809) (1938). See also Roberson v. State, 76 Ga. App. 31, 32 (1) (44 SE2d 719) (1947).

2. Appellant contends that the offenses of aggravated assault and armed robbery merge under the facts of this case and his conviction of aggravated assault must be vacated. We do not agree.

The evidence disclosed that appellant robbed Richard Venable at knifepoint in the cashier’s booth at the gas pumps outside a convenience store. Appellant then forced Venable into the store and behind the counter. When appellant loosened his grip around Venable’s neck, he pushed appellant back against a cooler. Venable’s mother came up from the rear of the store and when appellant saw her he swung at her with a knife. Venable then shoved appellant again, and appellant cut Venable in the abdomen and on the wrist. Appellant then ran out of the store.

It is clear from the facts that the robbery took place at the gas pumps and had been completed at the time appellant assaulted Venable with a knife inside the store. Thus, appellant’s actions constituted two separate crimes as a matter of fact, and the aggravated assault did not merge with the armed robbery. Accordingly, appellant was properly convicted and sentenced for both offenses. Dunbar v. State, 163 Ga. App. 243, 244 (2) (292 SE2d 897) (1982); Whitehead v. State, 144 Ga. App. 836 (3) (242 SE2d 754) (1978).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

S. Andrews Seery, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, J. David Miller, Assistant District Attorneys, for appellee.


text:
    75178.
    HAYES CONSTRUCTION COMPANY v. THOMPSON.
    (361 SE2d 865)
   Deen, Presiding Judge.

The appellee, Gerald Thompson, d/b/a Thompson Electric Company, was an electrical subcontractor who contracted with the appellant, Hayes Construction Company, to perform the electrical work in the construction of a retirement complex financed by the United States Department of Housing and Urban Development. Thompson commenced this action to recover $20,500 due under the subcontract that Hayes had retained to cover the deficiency in the amount of wages that Thompson should have paid his employees under the Davis-Bacon Act, 40 USCA § 276a et seq. This appeal follows from a jury verdict awarding Thompson $20,500, plus $11,000 attorney fees because of Hayes’s bad faith.

Hayes submitted its bid for the construction project to St. Mark’s Towers, Inc., on September 8, 1980. Hayes’ bid was partially based on Thompson’s bid as electrical subcontractor to do the electrical work for $205,000; it is undisputed that Thompson’s bid was based on paying his employees their normal, local wages. Hayes entered the contract with St. Mark’s on September 24, 1980, at which time Hayes first realized that Davis-Bacon wages would have to be paid since the project was financed by H.U.D. (Under the Davis-Bacon Act, employees were to be paid not less than the current wage determination by the Secretary of Labor, which provided for electrician’s wages almost double of those estimated and paid by Thompson.)

The evidence is in conflict as to what transpired when Hayes’ president, Denis Palmerin, informed Thompson of the wage problem. Thompson claimed that Palmerin agreed that Hayes would be responsible for the deficiency, should its appeal of the wage determination to the Secretary of Labor fail. Palmerin denied making such an agreement and claimed that Thompson had proceeded to enter the subcontract willing to risk the outcome of Hayes’s appeal. In any event, on October 10,1980, Hayes and Thompson entered the subcontract.

This subcontract was silent as to any requirement to pay Davis-Bacon wages, but it did provide that “[t]he contract documents for this subcontract consist of this agreement and any exhibits attached hereto, the agreement between the owner and the contractor, the conditions of the contract between the owner and the contractor (general, supplementary and other conditions) ...” The supplementary conditions to the contract between Hayes and St. Mark’s (1) required payment of Davis-Bacon wages; (2) directed that the supplementary conditions were to be inserted in any subcontracts entered by the contractor; (3) specified that the contractor was not relieved of responsibility for compliance with the supplementary conditions; and (4) provided that the owner may withhold payment to the contractor until the contractor established compliance with these conditions.

The project was completed in May 1982. Hayes’ appeal of the wage determination was ultimately unsuccessful, with Hayes dismissing its petition on July 12, 1982. Hayes received final payment from St. Mark’s on June 30, 1983, after satisfying the wage deficiency. Under the subcontract between Hayes and Thompson, Thompson was due payment of the $20,500 retainage within 30 days of final payment to Hayes. Thompson commenced this action when Hayes refused to pay that retainage. Held:

1. Hayes primarily contends that Thompson never should have been allowed to testify about any agreement by Hayes to be responsible for the wage deficiency. At trial and on appeal, Hayes and Thompson thrust and parry, with much bluster and sting, about the parol evidence rule, ambiguity in contracts, conditions precedent, collateral agreements, merger, and waiver. The briefs of the parties are veritable blunderbusses of contract law. Cautiously stepping over the verbal carnage, we conclude that the testimony was properly admitted.

Under OCGA § 24-6-1, “[p]arol contemporaneous evidence is generally inadmissible to contradict or vary the terms of a valid written instrument.” Thompson’s testimony about Hayes’ agreement to be responsible for the wage deficiency should its appeal of the wage determination fail, however, did not contradict any of the terms of the written contract. The written subcontract between Hayes and Thompson was silent as to the issue of Davis-Bacon wages, but the supplementary conditions to the contract between Hayes and St. Mark’s, which were incorporated in the subcontract, did address the matter. However, those supplementary conditions placed the onus on Hayes of ensuring that Davis-Bacon wages were paid and clearly held Hayes, and not the subcontractor, responsible for any noncompliance. Accordingly, Thompson’s testimony was entirely consistent with the written contract between Hayes and Thompson.

2. The jury awarded Thompson $11,000 for attorney fees because of bad faith on the part of Hayes. Hayes contends that the trial court erred in submitting the claim for attorney fees to the jury, because there was no evidence of bad faith and because Thompson failed to prove the value of the attorney’s services.

OCGA § 13-6-11 allows recovery of attorney fees only when “the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense . . Bad faith authorizing an award of attorney fees in a contract action must relate to the conduct of entering the contract or to the transaction and dealings out of which the cause of action arose, which includes not only the negotiations and formulation of the contract but also performance of the contractual provisions. Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106, 113-114 (115 SE2d 852) (1960). Construing the evidence in the light most favorable to the verdict, Hayes agreed to be responsible for the wage deficiency from the beginning, as demonstrated by its dealings with St. Mark’s and H.U.D., until close to the time of closing and final payment in June 1983. In short, Hayes’ refusal to pay Thompson the $20,500 retainage, as final performance under the subcontract, was contrary to the position it had maintained for over two years. Under these circumstances, the evidence supported a finding of bad faith.

Decided October 8, 1987.

Thomas J. Lee, for appellant.

James R. Tuten, Jr., John R. Ferrelle, for appellee.

In proving the value of an attorney’s services, “[generally, a party will proffer the opinion testimony of his present counsel as well as that of other attorneys in an effort to show what constitutes a reasonable attorney fee in light of the litigation history of the case.” First Bank of Clayton County v. Dollar, 159 Ga. App. 815, 817 (285 SE2d 203) (1981). In this case, Thompson proffered the testimony of another attorney who had practiced as a trial attorney in the same area since 1972. Based on his review of counsel’s files and research, consideration of the issues and nature of the case, discussion of the case with counsel, and his knowledge of the customary fees and counsel’s legal abilities, this attorney was of the opinion that the conservative value of the legal services rendered by Thompson’s attorney was $12,375 (165 hours at $75 per hour). This evidence sufficiently supported the jury award of $11,000.

3. Hayes’ remaining enumerations of error, regarding the instructions to the jury, are without merit. The requested charge on antecedent oral negotiations merging into the written contract would be misleading and inconsistent with the above holding that the evidence of the oral negotiations was admissible. The requested charge that one who signs a written contract without reading it, is chargeable with knowledge of its contents, was superfluous.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.


text:
    75268.
    MADDEN-LEE v. DAY’S INNS OF AMERICA, INC. et al.
    (361 SE2d 714)
   Deen, Presiding Judge.

Appellant, Brenda Madden-Lee, brought a multi-count lawsuit against Day’s Inns of America, David D. Workman, and Commercial Management Co., Inc., after her position as a general manager of a motel was eliminated. She alleged wrongful termination, defamation, intentional infliction of emotional distress, interference with property rights, and wrongful interference with contract rights. Summary judgment was granted to all defendants. Madden-Lee appeals only the grant of summary judgment in favor of David Workman, a former senior vice president in charge of human resources for Day’s Inns, on the slander count. Held:

The evidence showed that Madden-Lee was hired by Day’s Inns as a desk clerk and eventually promoted to manager. She had no written contract of employment. Following a change in ownership, Day’s Inns sold all but two of its motel properties in 1985. In May of 1985, Madden-Lee had been designated as manager of an inn to be built near Gwinnett Place Mall. During that summer, Day’s Inns and Commercial Management entered into a contract in which the latter was to purchase certain Day’s Inns properties in Georgia and Florida including the Gwinnett Place property. Construction on it was not completed until after the closing of the sale in November of 1985. While the inn was under construction, Madden-Lee worked out of the home office in Atlanta and later out of temporary space rented by the corporation near Gwinnett Place.

Appellant claims that at various times during her employment she was criticized by Workman who told others that she had no management skills, that she slept with other Day’s Inns employees and with blacks. Madden-Lee admits that she had no personal knowledge of the unfavorable statements that she attributes to Workman and her former supervisor testified that he was present at a meeting with Day’s Inns executives and Workman had stated that he did not want her retained when changes were made, but he said nothing untrue about her. This supervisor also testified that other executives in the company had asked him to speak to her about her personal life and that when he mentioned it to her she became upset. He also testified that Workman had made a comment to him in the hall as to her management ability, but he could not recall Workman’s exact words. Appellant claims Workman became cold towards her and began to make the alleged comments after she attended the ballet with a black male companion. Workman admitted that he had attended the ballet with his family using company tickets, but denied that he saw her there. Another employee who attended the meeting at which it was determined that she would not be employed by Commercial Management when the property was sold and then informed her of the decision immediately thereafter, denied that any specific comments were made by anyone about her. In her deposition, Madden-Lee admitted that long before this meeting there had been gossip within the company about her having affairs with other employees.

In August of 1985, she requested and received a two-month leave of absence for illness. During this time, Commercial Management placed its own manager on the property. When she returned to work, Madden-Lee was offered a position with Day’s Inns at either of two properties still owned by the corporation in South Carolina. She refused to accept either position and her employment was terminated. Shortly thereafter she was hired by another hotel at the same salary she received at Day’s Inns although she did not receive the same bonus package.

Madden-Lee claims that her slander claim is based upon remarks that Workman made about her at a July 17,1985, meeting when executives of Commercial Management and Day’s Inns were present and that on numerous other occasions Workman told Day’s Inns executives that she was “incompetent as a general manager” and “not worth a damn.”

During the time period in question, Workman’s position as a senior vice president made him responsible for compensation benefits, training, development and performance of employees. There is no competent evidence to support her allegation that appellee made derogatory remarks about her at the July 17 meeting.

As to the second prong of her slander allegation, appellant claims that Workman’s slanderous remarks that she was “incompetent as a general manager” were made to certain Day’s Inns executives do not support a cause of action. She admits that he never spoke directly to her about either her job performance or her personal life. (Indeed, Workman denied knowing anything about her personal life.) Slander actions require that the slanderous remark be published. Statements made to supervisors whose job responsibility requires them to be knowledgeable of job performance are not considered to be published. Land v. Delta Airlines, 147 Ga. App. 738 (250 SE2d 188) (1978); Garrett v. Lockheed Aircraft Corp., 98 Ga. App. 443 (106 SE2d 333) (1958). Workman was in charge of employee relations and his communications with other Day’s Inns executives were within the parameters of this privilege.

Appellant’s claim that the remarks were made with malice which negated the qualified privilege is without any evidence to support it. “Malice to avoid qualified privilege must be actual and with evil intent. Edmonds v. Atlanta Newspapers, 92 Ga. App. 15, 21 (87 SE2d 415) (1955).” Land v. Delta Airlines, supra at 739. Construing the record in favor of the plaintiff and against the movant when reviewing the grant of summary judgment, we find that it contains only conclusory allegations of malice made by the appellant without any evidence to support them. Land v. Delta Airlines, supra.

Decided October 8, 1987.

Charles L. Day, for appellant.

Ruth W. Woodling, for appellees.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.