author: Smith, Judge..

text:
    A96A2349.
    RICHARDS v. THE STATE.
    (484 SE2d 683)
   Smith, Judge..

Brian Richards appeals the judgment entered on his conviction of driving under the influence. OCGA § 40-6-391 (a) (4). He complains, among other things, of the trial court’s refusal to grant his motion to suppress. He argues that an officer seized him in violation of his Fourth Amendment rights and that the officer failed to read him the appropriate implied consent warning, as required by statute. Because we find no Fourth Amendment error and conclude any error as to the implied consent warning was harmless, we affirm.

1. Richards contends the trial court erroneously denied his motion to suppress evidence of his intoxication on the basis that he was seized by the arresting officer without reasonable or articulable suspicion of criminal activity.

Atlanta Police Department Officer Brookhisen testified at the suppression hearing that while sitting in his patrol car in a Rio Bravo restaurant parking lot at about 4:30 a.m. on October 10, 1995, he observed Richards running and stumbling, almost falling, down Roswell Road and into an empty parking garage. There was no vehicular traffic in the area, and other than Richards, no pedestrian traffic. Brookhisen testified that the “social area” in which he observed Richards was one having a “high degree of people breaking into vehicles, especially that are parked in lots that aren’t lighted” and that several store burglaries had occurred in the past several months. Driving his patrol car into the parking garage, Brookhisen saw Richards attempting to climb through a hole in a chain link fence situated around the ground floor of the garage. Brookhisen’s suspicions were aroused by Richards’s “out of the ordinary” behavior, and the possibility of wrongdoing on Richards’s part occurred to Brookhisen because Richards appeared to be running from something. Brookhisen also testified that his purpose in following Richards was “to make sure he was okay” because he was stumbling and falling.

Brookhisen testified that upon seeing Richards attempt to climb through the fence, he asked that Richards step away from the fence by calling out, “Excuse me, sir, can you step down?” or “Excuse me, sir, can you step back to my vehicle for a moment?” Richards approached the patrol car and leaned his head on it. Brookhisen asked, “Are you okay?” and “What is the problem?” Richards replied that he had just crashed his car and told Brookhisen the location of the car. Brookhisen noticed that Richards had glassy eyes, slurred speech, and smelled strongly of alcohol. According to Brookhisen, he stated to Richards either, “Why don’t you get in the patrol car and we’ll take a look at it,” or “Have a seat in the patrol car. We’ll take a look at the accident.” Whatever Brookhisen’s exact language, Richards entered the police car, and they drove to the nearby accident scene where Brookhisen discovered that Richards had struck a telephone pole. After examining the accident scene, Brookhisen asked Richards for his driver’s license. Richards replied that it was in the glove box of the car and consented to Brookhisen’s examining it. Brookhisen could not locate the license, however, and again questioned Richards concerning its location. Richards became very hostile, used abusive language, and called Brookhisen several names. Brookhisen then arrested Richards for DUI.

After hearing evidence, the trial court denied Richards’s motion to suppress, concluding, among other things, that Richards’s behavior on a city street at 4:00 a.m. and his admission that he had crashed his car, provided Brookhisen with a reasonable, articulable suspicion sufficient to justify further investigation. Richards maintains that he was seized when Brookhisen initially “summoned” him to the patrol car after observing him attempting to climb through the fence. He further argues that this seizure was not justified by a reasonable and articulable suspicion of criminal activity.

When reviewing a trial court’s decision on a motion to suppress, we must construe the evidence favorably to uphold the trial court’s findings and judgment, and the trial court’s findings must be upheld if any evidence supports them. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990). So construing the evidence, we conclude that Richards’s Fourth Amendment rights were not violated by the stop. '

Even assuming that Brookhisen’s initial actions in calling out to Richards and telling him to step away from the fence amounted to a seizure, evidence was presented of a reasonable, articulable suspicion of wrongdoing. A police officer must possess “a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.” Brisbane v. State, 233 Ga. 339, 341 (211 SE2d 294) (1974). Although Brookhisen did state that when he stopped Richards, he had no objective evidence that Richards had committed a crime, his suspicion that Richards could have been involved in wrongdoing was more than speculation, hunch, or caprice, unlike the officer’s “intuition” in Jorgensen v. State, 207 Ga. App. 545 (428 SE2d 440) (1993). In Jorgensen, the arresting officer merely saw the defendant turn “in a normal fashion” into a parking lot prior to reaching a roadblock. The officer’s intuition that defendant was avoiding the roadblock was not supported by any “articulable fact.” id. at 546.

Here, in contrast, Richards was running, stumbling, at a “fast pace,” down a city street during the early morning hours when businesses, restaurants, and bars were closed, behaving as if he were trying to hide or run from something. He stumbled into a parking deck, albeit empty, and then attempted to climb through a fence designed to protect the parking garage. Based on the totality of these circumstances, as in Brisbane, supra, in which a police officer stopped appellants’ vehicle after observing it twice slowly pass an all night service station around 3:45 a.m., Richards’s behavior “created a justifiable suspicion of [his] conduct so as to warrant the limited investigative detention.” Id. at 343.

Brookhisen’s investigation was not arbitrary or harassing; it was initially limited to asking Richards, “Are you okay?” and “What is the problem?” Although the investigation did evolve from these questions into an investigation of Richards’s status as an intoxicated driver, this evolution did not affect the validity of the stop. After Brookhisen began talking with and observing Richards from a distance of three feet, he noticed Richards’s glassy eyes, slurred speech, and strong odor of alcohol. Once he observed Richards’s condition, Brookhisen had reasonable grounds to conduct further inquiry to determine whether Richards was engaged in other criminal activity. See Crosby v. State, 214 Ga. App. 753, 755 (449 SE2d 147) (1994). Under these circumstances, the trial court did not err in denying Richards’s motion to suppress based on Fourth Amendment violations.

2. Richards contends the results of his chemical breath test should have been suppressed because Brookhisen failed to read him the appropriate implied consent warning mandated by OCGA § 40-5-67.1 (b). He further maintains that the evidence was insufficient to convict him in the absence of evidence of the breath test results. We agree that the test results should have been suppressed. The implied consent warning read by Brookhisen did not match exactly the words of OCGA § 40-5-67.1 (b), which applies to all cases involving offenses committed on or after April 21, 1995. OCGA § 40-5-67.1 (b.l). The offense in this case occurred in October 1995. It is therefore unlike those cases addressing the August 1995 amendments to OCGA § 40-5-67.1 (b); the offenses in those cases occurred prior to April 21, 1995, and the substance of the implied consent warning controlled over the exact wording or form. The offense here clearly occurred at a time when Brookhisen was required to read the exact language mandated by OCGA § 40-5-67.1 (b). See generally State v. Holcomb, 219 Ga. App. 231 (464 SE2d 651) (1995), noting that the specific language of OCGA § 40-5-67.1 (b) is mandatory in cases involving offenses that occurred on or after April 21, 1995. Because Brookhisen did not read the mandatory language of OCGA § 40-5-67.1 (b), the trial court erroneously denied Richards’s motion in limine to exclude the results of Richards’s chemical breath test.

Failure to suppress the breath test results was harmless here, however, because Richards stipulated during his bench trial that he drove while having a blood alcohol level of .207 in violation of OCGA § 40-6-391 (a) (4). Rather than try Richards’s case to a jury, his counsel announced, “[T]o save the court time and to move this case to disposition, we are willing to stipulate to the facts that the State needs to support a conviction under [OCGA § 40-6-391 (a) (4)].” Defense counsel also recited that he preserved certain issues concerning probable cause for Richards’s arrest and implied consent. The State and Richards then agreed to the following stipulation: “The defendant, Brian Richards, was on October 10, 1995, within the city limits of Atlanta, Georgia, and ... in actual physical control of a moving vehicle while under the influence of alcohol; and had a blood-alcohol level exceeding point-one-zero; that blood-alcohol level being point-two-zero seven, in violation of [former OCGA § 40-6-391 (a) (4)].” (Emphasis supplied.) Additionally, to ensure that the stipulation was accurate, the trial court recapped its understanding of the stipulation. Defense counsel acknowledged that the trial court correctly recited the stipulation. On the basis of the stipulation, the trial court found Richards guilty of violating OCGA § 40-6-391 (a) (4).

Richards’s counsel stipulated to far more than facts; he stipulated the ultimate issue to be decided. He could have stipulated, for example, that Richards was driving an automobile on the streets of Atlanta and that the breath test results, if admissible, would have shown his blood alcohol level to be .207, while preserving the issue of admissibility for appeal. Instead, he twice agreed on the record that Richards was driving with a blood alcohol level exceeding .10, in violation of former OCGA § 40-6-391 (a) (4). Even without considering the breath test results, sufficient evidence was presented to convict Richards; he expressly stipulated to his guilt. We therefore affirm. All other contentions are moot.

Decided March 6,1997

Reconsideration denied March 28,1997

Monte K. Davis, for appellant.

June D. Green, Interim Solicitor, James M. Miller, Assistant Solicitor, for appellee.

Judgment affirmed.

Andrews, C. J., and Pope, P. J., concur.

       See, e.g., State v. Martin, 266 Ga. 244 (466 SE2d 216) (1996); State v. Hunter, 221 Ga. App. 837 (473 SE2d 192) (1996); State v. Golub, 220 Ga. App. 810 (470 SE2d 331) (1996); and Howard v. State, 219 Ga. App. 228 (465 SE2d 281) (1995).

       The Solicitor recited these facts to the trial court, who asked defense counsel, “[D]o you concur that those are the facts?” Defense counsel answered, ‘Yes,” while adding that Richards challenged probable cause.

       The trial court asked, “Did I state the stipulation correct[ly]?” Defense counsel answered, “[T]he stipulation is to the prima-facie case under (a) (4). It is alcohol concentration of point-one-zero grams or more within three hours of... operating a motor vehicle. Yes, that is what we are stipulating to” (Emphasis supplied.)

       By way of extended analogy, one charged with murder might choose to expedite judicial proceedings, not by stipulating that he or she murdered the victim, but by admitting that he or she shot a gun at the victim and that the victim died as a result of the gunshot wound, while reserving for jury determination and appellate review issues such as whether the killing was accidental or justified, or whether the killing was a lesser degree of homicide.


source: Caselaw Access Project

author: Andrews, Chief Judge.

license: Public Domain

text:
    A96A2477.
    ST. JOSEPH’S HOSPITAL, INC. et al. v. COPE.
    (484 SE2d 727)
   Andrews, Chief Judge.

The application of employer St. Joseph’s Hospital, Inc. (Hospital) and its servicing agent was granted to consider the superior court’s affirmance of the award of attorney fees to Cope in her workers’ compensation case. We affirm.

Cope worked as a nursing assistant for the Hospital until July 2, 1992. On that date, she hurt her right upper extremity while lifting and pulling patients into and out of bed. She was treated by Dr. Wheeler, an orthopedist, beginning on July 21, 1992, after treatment in the emergency room did not alleviate her condition.

Dr. Wheeler’s office notes and deposition reflect that he treated Cope for lateral epicondylitis, an inflammation of an elbow tendon, with injections, anti-inflammatories, and physical therapy. Although Dr. Wheeler deposed that this condition does not usually progress to neuropathy, he acknowledged that his office exam notes of September 23, 1992, reflect his concern with pain in her “hand, wrist and forearm” for which he referred her to Dr. Stanley, a neurologist, for evaluation. This evaluation resulted in a diagnosis of “mild or moderate carpal tunnel syndrome,” a neuropathic disorder.

She continued to be treated by Dr. Wheeler as well as other medical providers for carpal tunnel syndrome, including a surgical release of her right wrist in November 1992, performed by Dr. Wheeler. Thereafter, her right arm pain improved, but some swelling and pain continued. In January 1993, Dr. Wheeler noted complaints with Cope’s left hand which Cope attributed to overuse of that hand when she attempted to return to work after injuring her right arm. In May 1993, Cope was referred to Dr. Downing, a neurologist, for further evaluation of her carpal tunnel syndrome. After conducting further tests, Dr. Downing opined that the “repeat EMG shows marked improvement of her carpal tunnel [right wrist] consistent with a therapeutic benefit. Certainly with the findings on exam, electrical and radiological studies do not suggest that she is disabled. I see no reason why this lady cannot return to work and do the type work she does. I have encouraged her to do so. The exercise at work will be beneficial to her. I do not think that further medical therapy is indicated at this time.”

In July 1993, Dr. Wheeler referred Cope to a pain specialist, recommended she return to work, noted he could find no physiologic explanation for her pain or inability to work, but also noted her continuing complaints of arm pain in both arms.

Cope continued to be seen by neurologists and orthopedists, who were compensated by workers’ compensation, including Dr. Wheeler, about both wrists, both of which were repeatedly diagnosed with and treated for carpal tunnel syndrome. On January 23, 1995, Dr. Wheeler wrote a letter to the Hospital’s servicing agent in which he described the right wrist release he had performed and noted that Cope continued to have symptoms, with her left wrist worsening and “the right has showed some worsening as well after the release. As far as whether or not this is related to her job injury on 7/3/92, I think that the right carpal tunnel syndrome was certainly related to that, but she has not worked since 1992 and I find it very difficult to apply a job injury that happened in 1992 to a recent exacerbation of some left wrist carpal tunnel syndrome.” (Emphasis supplied.) Dr. Wheeler wrote another letter on January 30, also stating that the right carpal tunnel was continuing to be a problem.

During his deposition of March 20, 1995, Dr. Wheeler, for the first time, took the position that her carpal tunnel syndrome was not related to her 1992 injury. He explained that he had changed his mind and, “after my review of this patient’s history, I don’t feel like I made the correct assessment that a right carpal tunnel syndrome was related to this injury.”

The Hospital had unilaterally suspended income benefits on August 4, 1993 (Rule 61 (b) (2)), based on Dr. Wheeler’s release of Cope to return to work and Dr. Downing’s concurrence. The Hospital also filed WC-3s on December 18, 1994 and March 28, 1995, controverting Cope’s right to continued medical treatment and disability payments as to both arms because the current condition was not related to her July 1992 on-the-job injury. Because Cope had not returned to work, the pending claims were treated as change of condition claims, with the Hospital bearing the burden of proof. West Point Pepperell v. Adams, 152 Ga. App. 3, 4 (2) (262 SE2d 212) (1979).

The appellate division found that Cope was entitled to “the assessment of attorney fees. OCGA § 34-9-108 (b) (1). The employer/ self-insurer defended this claim at least partially without reasonable grounds.” This conclusion is apparently premised on paragraph 20 of the appellate division’s finding of fact that “Dr. Wheeler’s deposition testimony is unreliable. Dr. Wheeler treated the employee for a period of approximately two and one half years without ever contending that the right upper extremity problems were not related to the original injury. In fact, Dr. Wheeler specifically stated in his letter of January 23, 1995, that the right carpal tunnel syndrome was ‘certainly related’ to the original injury. His deposition testimony is inconsistent with his treatment and opinions during his term of care of the employee. Therefore, the appellate division finds that Dr. Wheeler’s previous reports and letters are more persuasive than his deposition testimony.”

The superior court affirmed, finding that the appellate division had considered and made findings concerning the employer’s defense but had determined that the employer’s reliance on “these somewhat isolated pieces of medical evidence [was] unreasonable.”

1. “On appeal from an award of the State Board of Workers’ Compensation, this Court examines the record to see if there is competent evidence in the record to support the award and construes the evidence in a light most favorable to the prevailing party. Harris v. Seaboard Farms of Elberton, 207 Ga. App. 147, 149 (427 SE2d 524) (1993). In addition, ‘(a) correct decision of a trial court will not be reversed, regardless of the reasons given therefor.’ (Citations and punctuation omitted.) Watts v. Wayne County Bd. of Ed., 201 Ga. App. 777, 779 (412 SE2d 541) (1991).” Lukowski v. Capitoline Products, 222 Ga. App. 140, 142 (1) (473 SE2d 236) (1996).

2. “OCGA § 34-9-221 contemplates three different time periods within which an employer/insurer can file a notice to controvert liability for workers’ compensation benefits. Subsection (d) of OCGA § 34-9-221 provides that the employer’s/insurer’s initial notice to controvert is to be filed ‘on or before the twenty-first day [Rule 61 (b) (1)] after knowledge of the alleged injury or death. . . .’ However, this provision is clearly inapplicable . . . , because the employer/insurer did not file such a timely initial notice to controvert liability but, instead, voluntarily initiated payment of benefits to the employee without an award. When, as in the present case, the payment of benefits has already been initiated without an award, it is not subsection (d) but subsection (h) of OCGA § 34-9-221 that is the applicable provision. Within that single provision, two different time periods for the employer/insurer to controvert are established. ‘Where compensation is being paid without an award, the right to compensation shall not be controverted except upon the grounds of change in condition or newly discovered evidence unless notice to controvert is filed with the board within 60 days of the due date of first payment of compensation.’ OCGA § 34-9-221 (h). . . . [T]his portion of OCGA § 34-9-221 (h) is also inapplicable . . ., because the employer/insurer did not file a timely notice to controvert within 60 days of the due date of their first voluntary payment. . . . What is the applicable provision here is that portion of OCGA § 34-9-221 (h) which provides that, after the passage of 60 days from the due date of the first payment of compensation made without an award, the employer/insurer ‘shall not’ controvert liability ‘except upon the grounds of change in condition or newly discovered evidence. . . Carpet Transp. v. Pittman, 187 Ga. App. 463, 464-465 (1) (370 SE2d 651) (1988). See Cartersville Ready Mix Co. v. Hamby, 224 Ga. App. 116, 118 (2) (479 SE2d 767) (1996).

These time periods serve as a statute of limitation with regard to the employer/insurer’s right to dispute the compensability of the claim. Cartersville Ready Mix Co., supra; Snapper Power Equip. Co. v. Crook, 206 Ga. App. 373, 374 (425 SE2d 393) (1992); Carpet Transp., supra.

3. “While the question of whether there are reasonable grounds for resisting an award of compensation is an issue of fact to be determined by the board, attorney fees may not be awarded where the matter is closely contested on reasonable grounds. Brigmond v. Springhill Homes of Ga., 180 Ga. App. 875, 876 (350 SE2d 846) (1986). Further, the board does not satisfy its burden of proving that a defense is unreasonable by setting forth its own separate basis for the award. Rather, the board must prove by the record that there is ‘ “evidence upon which to base a finding of unreasonableness with respect to the employer’s defense of a claim.” ’ (Citation and punctuation omitted.) Pet, Inc. v. Ward, 219 Ga. App. 5,25, 527 (466 SE2d 46) (1995).” Autry v. Mayor &c. of Savannah, 222 Ga. App. 691, 692-693 (475 SE2d 702) (1996).

The Hospital/agent’s argument here and below was that, solely based upon Dr. Wheeler’s change of opinion in 1995 regarding causation of the carpal tunnel syndrome, after he had treated Cope for three years for the right arm epicondylitis and superadded carpal tunnel syndrome in both arms, the termination of benefits and pursuit of the change of condition ruling was “reasonable” based upon Pet, Inc., supra; Brigmond, supra; and S. S. Kresge Co. v. Driver, 147 Ga. App. 531 (249 SE2d 340) (1978).

In Pet, Inc., however, the employer had consistently contested whether Ward’s September 1992 episode of back pain was work-related, contending that the exacerbation of her previous work-related back injury occurred while she was laid off from work in May 1992. There was evidence to support this contention from both Ward and her treating physicians. We concluded that the ALJ completely ignored the evidence supporting Pet’s defense. Pet, Inc., supra at 526. In Brigmond, the evidence was that the treating physician was of the opinion that the employee was not so disabled that he could not return to light-duty work and that the employment offered by the employer was suitable. This Court affirmed the superior court’s finding that, based on conflicting medical opinions by different doctors, the defense was reasonable.

Decided March 14,1997

Reconsideration denied March 28,1997

Howard & Whatley, Molly M. Howard, Thomas G. Whatley, Jr., for appellants.

In the present case, there was originally no timely contention by filing a notice to controvert (Rule 61 (b) (1)) by the Hospital that Cope’s injuries, including the superadded carpal tunnel syndrome, were not work-related, only that, in July 1993, she had improved enough to return to work. Then, upon Dr. Wheeler’s change of opinion in May 1995, in effect, the Hospital attempted to contest compensability of Cope’s carpal tunnel syndrome under the rubric of a change in condition. Richardson v. Air Products &c., 217 Ga. App. 663, 665 (458 SE2d 694) (1995).

Compare Autry, supra, where this Court affirmed the superior court’s conclusion that attorney fees were not demanded because the board overlooked two of the three bases upon which the city contested the treatment of occupational therapy. There, the city controverted treatment on the grounds it was not likely to effect a cure, previous physical therapy had been unsuccessful, and that the prescribed therapy was due to an unrelated condition. The city did not attack the compensability of the underlying 1991 left elbow problems. Autry had gone to Dr. Novack for treatment of her elbow in April 1994, and he recommended occupational therapy “ ‘to help with carpal tunnel syndrome, reported to be more severe on (her) right side.’ ” Id. at 692. In June 1994, prior to the controvert, Dr. Novack’s own notes reflected that the therapy had not been effective and had to be stopped because of Autry’s complaints of pain. Dr. Novack was also unaware that another doctor had earlier prescribed another unsuccessful round of therapy for pain in Autry’s shoulders and arms. Therefore, the city’s controvert on the grounds the therapy was unlikely to help and was unsuccessful was reasonable.

There were no such contentions in this case, and the trial court’s affirmance of the imposition of attorney fees by the appellate division on the ground that solely relying on Dr. Wheeler’s change of mind was not reasonable is affirmed.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

Zipperer & Lorberbaum, Ralph R. Lorberbaum, for appellee.


author: McMurray, Presiding Judge.

text:
    A96A0551.
    BRIDGES FARM, INC. v. BLUE.
    (488 SE2d 130)
    Decided March 28,1997.
   McMurray, Presiding Judge.

Plaintiff-appellee Scott Wayne Blue obtained a verdict against defendant-appellant Bridges Farm, Inc., awarding plaintiff damages for personal injuries. In Bridges Farm v. Blue, 221 Ga. App. 773, 774 (1), 775 (472 SE2d 465), this Court affirmed the judgment in part based on the existing jury verdict finding defendant liable for plaintiff’s injuries but reversed in part due to an unauthorized instruction as to future medical expenses. The case was remanded for a new trial, limited solely to the proper amount of damages. Id. Certiorari was granted to consider whether, in Division 1, “reversal by the appellate court on the basis that the trial court erred in instructing on future medical expenses require[s] a new trial as to liability and damages or a new trial only as to the amount of damages[.]” In Bridges Farms v. Blue, 267 Ga. 505 (480 SE2d 598), the Supreme Court of Georgia affirmed in part and reversed in part, reasoning that, in a comparative negligence case, the recovery of damages and the liability of the defendant are “issues which are ‘inextricably joined.’ [Cit.]” Id. The Supreme Court further determined that “comparative negligence was raised by the evidence and the trial court properly charged on that issue. [The Supreme Court’s] review of the transcript show[ed] that the Court of Appeals correctly found reversible error in the trial court’s giving of a charge on future medical expenses. However, the Court of Appeals erred in limiting its remand to a new trial solely on the issue of damages. A new trial on the issue of the damages to which [plaintiff] Blue is entitled will necessarily include a new trial on the issue of [defendant] Farm’s and Blue’s respective negligence and, hence, a new trial on the issue of liability for Blue’s injury.” Id. at 506. Accordingly, our prior judgment is vacated and the judgment of the Supreme Court is made the judgment of the Court of Appeals. The judgment of the trial court is reversed.

Judgment reversed.

Johnson and Ruffin, JJ, concur.

John T. Croley, Jr., for appellant.

John D. Varnell, for appellee.


author: Judge Harold R. Banke.

text:
    A97A0226.
    GEORGIA PUBLIC SERVICE COMMISSION v. CSX TRANSPORTATION, INC.
    (484 SE2d 799)
   Judge Harold R. Banke.

The Georgia Public Service Commission (“the Commission”) appeals an order of the Fulton County Superior Court holding that the ICC Termination Act of 1995 preempted the Commission’s efforts to impose economic regulations on CSX Transportation, Inc. (“CSX”). The Commission enumerates five errors.

This case arose after CSX sought the Commission’s permission to modify the staffing at CSX’s service facility at Cordele, Georgia, by reducing the employees from two to one and consolidating some of the services with those provided at the CSX customer service facility in Jacksonville, Florida. CSX estimated that eliminating the position would save it as much as $50,000 annually. After a hearing, the Commission denied CSX’s application. CSX unsuccessfully petitioned for reconsideration, arguing that the ICC Termination Act of 1995 preempted the Commission’s decision.

CSX then filed its successful appeal in Fulton County Superior Court. The court based its decision in part on findings that (1) the ICC Termination Act preempted the Commission’s decision; (2) the Commission acted beyond the purview of its own rules which cover only discontinuation and abandonment of agency offices rather than modifications in staffing; and (3) the decision was not supported by the evidence. Held:

1. We reject the Commission’s contention that the Fulton County Superior Court lacked jurisdiction over this controversy. It appears, as the Commission argues, that Section 9 of Ga. L. 1975, p. 404 exempted the proceedings before the Commission from the judicial review provisions of the Administrative Procedure Act, OCGA § 50-13-19. OCGA § 1-1-10 (c) (41). Nor would that Act’s declaratory judgment procedures apply to these facts because CSX’s allegations do not challenge the Commission’s “rules” within the meaning of OCGA § 50-13-10. See Roy E. Davis & Co. v. Dept. of Revenue, 256 Ga. 709, 711 (353 SE2d 195) (1987). As a result, CSX was effectively deprived of any relief through administrative remedies. See Moss v. Central State Hosp., 255 Ga. 403, 404 (339 SE2d 226) (1986).

The superior court was, however, presented with a controversy amenable to resolution under OCGA § 9-4-2. That section, the Declaratory Judgment Act, authorizes superior courts to “declare rights and other legal relations of any interested party petitioning for such declaration.” OCGA § 9-4-2 (a). The Act, which must be liberally construed and administered to afford such relief, is available where some fact or circumstance necessitates “a determination of disputes, not merely for the purpose of enforcing accrued rights, but in order to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged rights, and which future action without such direction might reasonably jeopardize his interest.” Cohen v. Reisman, 203 Ga. 684 (1) (48 SE2d 113) (1948); OCGA § 9-4-1.

Here, the propriety of declaratory relief is apparent. The facts alleged demonstrate the necessity of judicial intervention to protect CSX’s right to control the Cordele facility, a right denied by the Commission. Pangle v. Gossett, 261 Ga. 307, 308 (1) (404 SE2d 561) (1991) (declaratory judgment justified when one party claims right and the other denies it). In addition, CSX faces uncertainty and insecurity with regard to its future relationship with the Commission in gen-' eral, involving conduct which might otherwise jeopardize its interests. Compare Henderson v. Alverson, 217 Ga. 541, 542 (123 SE2d 721) (1962); see Davis and Shulman, Ga. Prac. & Proc. (6th ed.) § 26-1, p. 721. Moreover, the case was susceptible to complete termination by the superior court’s declaration of rights. OCGA § 9-4-8; see Consolidated Quarries Corp. v. Davidson, 79 Ga. App. 248, 249-250 (53 SE2d 231) (1949) (no declaratory relief where controversy cannot be completely resolved). Under these circumstances, the “ends of justice” were served by the superior court’s decision to provide declaratory relief by reaching the. preemption issue. OCGA § 9-4-2 (b); see Sunn v. Mercury Marine, 166 Ga. App. 567, 569 (1) (305 SE2d 6) (1983) (pleadings, judged by their function rather than their label, must be construed to serve the best interests of the pleader).

2. The superior court correctly determined that the ICC Termination Act of 1995 preempted the Commission’s decision. “[The] [preemption doctrine is rooted in the Supremacy Clause and grows from the premise that when state law conflicts or interferes with federal law, state law must give way.” Teper v. Miller, 82 F3d 989, 993 (11th Cir. 1996). Congress may express a “clear and manifest” intent for federal law to have preemptive effect in three ways: (1) by expressly defining the extent of preemption; (2) by regulating an area so pervasively that an intent to preempt the entire field may be inferred; and (3) by enacting a law that directly conflicts with state law. Id.

Decided March 28,1997.

Michael J. Bowers, Attorney General, Brenda H. Cole, Deputy Attorney General, Alan Gantzhorn, Senior Assistant Attorney General, Thomas K. Bond, Assistant Attorney General, for appellant.

Nelson, Mullins, Riley & Scarborough, Taylor T. Daly, Phil C. Beverly, for appellee.

Congress’ efforts to deregulate railroads, in part by wresting their control from the states, culminated in the ICC Termination Act. Pub. L. No. 104-88, 1995 USCCAN (104 Stat.) 802-803. The Act specifically states that the Surface Transportation Board’s jurisdiction over: “(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and (2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State, is exclusive.” 49 USC § 10501 (b); see 49 USC § 701 (establishing the Board, which replaces the Interstate Commerce Commission).

This express delineation of the breadth of the law’s preemptive reach is “clear and manifest.” Teper, 82 F3d at 993. The Act defines “transportation” to include “facilities” and “services” related to the movement of passengers or property or both, by rail including the “storage, handling, and interchange of passengers and property.” 49 USC § 10102 (9). These definitions are sufficiently broad to reach the facts of this case notwithstanding the Commission’s argument that the service center at issue is an “agency” rather than a “facility.”

Moreover, the Commission’s decision is just the sort of anticompetitive micromanagement that the ICC Termination Act was enacted to avert. See Pub. L. No. 104-88, 1995 USCCAN (104 Stat.) 802; see 49 USC § 10101. Congress, without question, has the authority to preempt activity which collides with its overriding “scheme of economic regulation (and deregulation) of railroads.” Pub. L. No. 104-88, 1995 USCCAN (104 Stat.) 852; Teper, 82 F3d at 993. Therefore, we affirm the superior court’s decision on preemption insofar as it reaches the parties to this action.

3. In light of this holding, we need not reach the remaining enumerations.

Judgment affirmed.

Beasley and Smith, JJ., concur.

       The ICC Termination Act had not yet become effective when CSX initially petitioned the Commission. By the time the Act became effective on January 1, 1996, the proceedings before the Commission were well underway.


author: Smith, Judge.

text:
    A97A0276.
    THOMAS v. THE STATE.
    (484 SE2d 797)
   Smith, Judge.

Charles Thomas was indicted on charges of rape, kidnapping, and robbery. A jury found him guilty of rape and kidnapping and not guilty of robbery. Thomas appeals from the judgment of conviction and sentence entered thereon.

Construed to support the verdict, the evidence presented at trial showed that a condom was used during the rape. The victim identified Thomas as her attacker both from a photographic lineup before trial and at trial.

A condom package was found in the victim’s car, and Thomas’s former girl friend testified at trial it was a brand he used. In a search of Thomas’s home, police officers found clothing matching the description given by the victim of those worn by the rapist. Officers also seized Thomas’s wallet. Although when found the wallet did not contain a condom, the officer who seized the wallet testified at trial that the wallet held a circular impression that in his opinion had been made by carrying a condom. In cross-examining the officer, defense counsel attempted to show that this impression could have been made by other circular objects. He asked whether the officer or his children had been Boy Scouts, earned scout merit badges, or carried merit badges in a wallet. The officer conceded that the impression could have been made by something other than a condom. Thomas did not testify in his own behalf.

Thomas’s two enumerations of error address a comment made by the prosecution during summation. In attempting to address the issue raised by the defense’s cross-examination of the officer regarding the impression found on the wallet, the State argued that “[t]hey say [the impression on the wallet] could be a merit badge. We don’t know whether Mr. Thomas was a Boy Scout or not, or had merit badges or not.” The defense objected, stating that “the State is trying to shift the burden onto the defendant.” Thomas contends the trial court erred in overruling this objection because the prosecutor’s argument amounted to comment on his failure to testify and improperly placed his character in issue. We do not agree.

First, the objection made by Thomas was only that the prosecutor’s argument was burden-shifting. It did not serve to preserve for review either issue enumerated on appeal. “An objection on a specific ground (or grounds) at trial waives any objection to that evidence on other grounds on appeal. Accordingly, all other grounds for objection, other than the specific . . . grounds posed at trial, are not preserved for appeal.” (Citation and punctuation omitted.) Scott v. State, 206 Ga. App. 23, 25 (1) (a) (424 SE2d 328) (1992). “[T]o preserve an objection upon a specific ground for appeal, the objection must be made at trial upon that specific ground. [Cit.]” Smith v. State, 222 Ga. App. 366, 368 (3) (a) (474 SE2d 272) (1996).

Decided March 28,1997.

Cook & Connelly, Bobby Lee Cook, Todd M. Johnson, Harold M. Harvey, for appellant.

Even had these issues been preserved, Thomas’s contentions are not meritorious. Thomas argues that the prosecutor’s remark constituted improper comment because it went to testimony that only Thomas could give about what he carried in his wallet. According to Thomas, the jury would therefore “naturally and necessarily” have taken it as commenting on Thomas’s failure to take the stand. See Ranger v. State, 249 Ga. 315, 319 (290 SE2d 63) (1982).

We do not find the comment improper as referring to Thomas’s failure to testify. The defense raised the inference, in cross-examining the officer about the wallet, that a Boy Scout merit badge, among other objects, could have made the circular impression. By pointing out that no witness ever testified that Thomas had ever been a scout or had merit badges, the State was simply attempting to refute this inference. “The State could properly rebut the factual issues raised by defendant.” Gaston v. State, 209 Ga. App. 477, 478 (2) (433 SE2d 306) (1993). Contrary to Thomas’s argument, he himself was not the only person who could have testified whether he had been a scout. The defense called other witnesses who were family members and might have had such knowledge. The State was permitted to argue to the jury the inferences to be drawn from the defendant’s failure to produce witnesses who would give such evidence favorable to him. Edwards v. State, 219 Ga. App. 239, 242 (2) (b) (464 SE2d 851) (1995); see Couch v. State, 253 Ga. 764, 765 (3) (325 SE2d 366) (1985).

Nor do we find that the comment bore upon Thomas’s character; to do so would take “an inferential leap.” Alexander v. State, 263 Ga. 474, 476 (2) (c) (435 SE2d 187) (1993). The State did not imply that Thomas was not of good character because he was not a Boy Scout. In fact, in cross-examining the officer regarding the billfold, the defense elicited the information that the officer had not been a scout, either. The remark was made purely and simply to point out to the jury that no evidence supported a theory advanced specifically by the defense to explain incriminating evidence. Counsel are permitted wide latitude in closing argument. Id. at 477. This comment was permissible, and we find no error.

Judgment affirmed.

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

Ralph L. Van Pelt, Jr., District Attorney, Christopher A. Amt, Micha,el J. Moeller, Assistant District Attorneys, for appellee.


author: Beasley, Judge.

text:
    A96A2030.
    PICKENS v. THE STATE.
    (484 SE2d 731)
   Beasley, Judge.

Pickens appeals from his conviction and sentence for trafficking in cocaine, OCGA § 16-13-31, and from the denial of his motion for new trial.

1. The first two enumerations of error relate to the denial of the motion to suppress evidence that Pickens maintains was obtained through an illegal search and seizure in violation of the Fourth Amendment to the United States Constitution. “On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment.” Burse v. State, 209 Ga. App. 276 (433 SE2d 386) (1993). The court’s findings of fact “ ‘will not be disturbed if there is any evidence to support them.’ ” (Citation omitted.) State v. Williams, 220 Ga. App. 100, 102 (2) (469 SE2d 261) (1996).

Kitty Smith, assistant manager of a motel in an area where such establishments were “notorious” for drug and prostitution activities, received an anonymous phone call from a male informing her that Pickens was selling marijuana and cocaine out of his motel room, and that the reason for the call was that the caller did not want Pickens selling to the people who were buying. She confirmed from motel records that Pickens rented that room, and she then contacted the police. Officer Krueger responded and met with her, verified which room was rented to Pickens, went there and knocked on the door to investigate whether there was any truth to the call. The officer had been sent to that motel and others in the area many times on complaints of drugs and prostitution.

Pickens answered and did not open the door all the way but merely stuck his head out. Only his head and one shoulder were visible. The officer explained why he was there and asked Pickens to confirm his identity, which he did. To protect his own safety, and that of his backup, the officer asked Pickens to step out from behind the door. Pickens consented, and as he opened the door, the officer saw a table holding an open black gun case containing plastic bags filled with white powder, which appeared to be cocaine. Krueger attempted to step through the threshold and Pickens slammed the door against the officer twice, for which Pickens was arrested for simple battery. The officer entered and seized the gun case, drugs, paraphernalia, telephone pagers, and a significant amount of cash from the room.

(a) Pickens contends the call from the anonymous tipster was insufficient to establish articulable suspicion to justify an approach to Pickens’ motel room under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), and its progeny. He argues that the tip lacked sufficient “indicia of reliability” to justify the approach, citing Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990).

The first question is whether the initial contact between Pickens and Officer Krueger constituted a “seizure.” The Fourth Amendment governs even those seizures amounting to only a brief detention, as in the typical Terry stop, which must be supported by articulable suspicion. Moran v. State, 170 Ga. App. 837, 840 (1) (318 SE2d 716) (1984). Contact between police and citizens implicates no Fourth Amendment interest, unless “ ‘in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Id. and cites therein; O’Donnell v. State, 200 Ga. App. 829, 830 (1) (409 SE2d 579) (1991).

The State responds that the encounter did not even require articulable suspicion because it was only “the mere accosting by an officer usually requesting name and identification.” Expósito v. State, 191 Ga. App. 761, 762 (1) (382 SE2d 412) (1989). “There is no threshold requirement and indeed the individual may refuse to answer or ignore the request and go on his way if he chooses, for this does not amount to any type of restraint and is not encompassed by the Fourth Amendment.” Id.

Krueger’s approach to Pickens’ motel room does not implicate the Fourth Amendment, since there was no “stop” for Terry purposes. Accordingly, it is unnecessary to apply the “articulable suspicion” analysis of Alabama v. White. Having received the tip, Krueger was authorized to respond to the call and had sufficient reason, by way of prior experience and the nature of the call, to investigate it. Starr v. State, 159 Ga. App. 386, 387 (283 SE2d 630) (1981).

Next, Krueger was permitted to knock on Pickens’ door without an articulable suspicion, in order to investigate the report of a crime. Gilreath v. State, 247 Ga. 814, 819 (1) (279 SE2d 650) (1981). “Where a police officer enters upon private property only to the extent of knocking on outer doors, the Fourth Amendment is not violated.” State v. Zackery, 193 Ga. App. 319, 320 (387 SE2d 606) (1989). He was not even on defendant’s property when he knocked; the passageway or corridor where he was standing when he knocked was public. He went to the motel room door “on the same route as would any guest, deliveryman, postal employee, or other caller.” State v. Nichols, 160 Ga. App. 386 (287 SE2d 53) (1981).

The officer’s inquiry as to Pickens’ identity and his asking Pick-ens to step outside for safety reasons were permissible actions that did not rise to the level of a seizure. See State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822) (1992), citing Florida v. Bostick, 501 U. S. 429 (111 SC 2382, 115 LE2d 389) (1991).

(b) Pickens’ first enumeration also alleges Room 220 of the motel was his home, and that Officer Krueger’s stepping over the threshold and looking into the room constituted an unlawful warrantless search. Pickens did have a “constitutionally protected reasonable expectation of privacy” in his motel room. Katz v. United States, 389 U. S. 347, 360 (88 SC 507, 19 LE2d 576) (1967); Oliver v. United States, 466 U. S. 170, 177 (III) (104 SC 1735, 80 LE2d 214) (1984). It thus is accorded the same Fourth Amendment considerations as a private home. Katz, supra at 359; United States v. Jeffers, 342 U. S. 48, 51 (72 SC 93, 96 LE 59) (1951).

In Carranza v. State, 266 Ga. 263 (467 SE2d 315) (1996), the Supreme Court observed that a motel room is akin to a private home for Fourth Amendment purposes: “ ‘It is axiomatic that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” (Cit.) And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest. (Cit.)’ Welsh v. Wisconsin, 466 U. S. 740, 748 (II) (104 SC 2091, 80 LE2d 732) (1984). . . . [E]ven where probable cause exists, warrantless intrusion of a person’s home is prohibited . . ., absent consent or a showing of exigent circumstances. Steagald v. United States, 451 U. S. 204, 211 (III) (101 SC 1642, 68 LE2d 38) (1981).” Id. at 264-265 (1). Pickens contends there were no exigent circumstances or consent for the warrantless intrusion of his room.

The “plain view” doctrine, as explicated in Coolidge v. New Hampshire, 403 U. S. 443, 468 (II) (C) (91 SC 2022, 29 LE2d 564) (1971), applies. It requires the existence of three criteria: (1) there must be a prior valid intrusion onto a person’s property before the evidence is observed and seized; (2) discovery of the evidence must be inadvertent; and (3) it must be apparent that the item seized is evidence or contraband. All three factors are present. Krueger validly went to Pickens’ motel room to investigate a complaint of illegal activity in progress and knocked on the door, as discussed in Division 1(a).

When Pickens opened the door, it became reasonable for Krueger to believe Pickens might be armed because of his knowledge of the high crime area, the nature of the crime he was investigating, and the fact that Pickens concealed his entire body behind the door, except for his head and shoulder. A request for Pickens to step out from behind the door, to secure the officers’ safety, was sensibly cautious. It is “ ‘not unreasonable for officers to anticipate that those who are suspected of involvement in the drug trade might be armed. (Cit.)’ [Cit.]” State v. Jarrells, 207 Ga. App. 192, 193 (4) (427 SE2d 568) (1993).

Krueger’s sighting of the cocaine occurred only when Pickens consented to open the door, and the discovery was inadvertent. From Krueger’s position at the doorway, a place where he was lawfully entitled to be, he saw what he reasonably believed was in all likelihood cocaine. Krueger was “rightfully standing before the open doorway of the [m]otel room for purposes of investigation” when he saw the contraband. Brooks v. State, 129 Ga. App. 393, 394 (3) (199 SE2d 578) (1973). “A police officer may seize what is in plain sight if, as here, he is in a place where he is constitutionally entitled to be. [Cits.]” State v. Brown, 158 Ga. App. 312, 314 (279 SE2d 755) (1981). See also State v. Brooks, 160 Ga. App. 381 (287 SE2d 95) (1981).

The plain view exception to the warrant requirement is one of exigent circumstances and covers the discovery of incriminating evidence (the cocaine in the gun case) that is not a result of a search. State v. O’Bryant, 219 Ga. App. 862 (467 SE2d 342) (1996). Where a plain view seizure takes place, there is no search. Nichols, supra. The legal principles applicable to a search are inapposite, Galloway v. State, 178 Ga. App. 31 (342 SE2d 473) (1986), and this is “true whether or not the officer expected or suspected that he would discover the object seized.” Id. at 35. Accord Hatcher v. State, 141 Ga. App. 756 (234 SE2d 388) (1977) (police observed stolen articles in plain view in hotel room when the defendant opened the door in response to the officer’s knock; evidence properly admitted).

After what had been observed from the doorway was seized, the officers were authorized to search for additional contraband and incriminating evidence pursuant to the seizure.

It was not error to deny the motion to suppress the evidence and to admit it at trial.

(c) The second enumeration is that the court erred in refusing to allow Pickens to present additional evidence in support of his motion to suppress. Long after the original hearing and the ruling denying the motion, and well into trial, Pickens asked to testify outside the presence of the jury. The request was denied, and although the trial court was prepared to allow counsel to proffer to what Pickens would testify regarding the circumstances of his arrest and the search and seizures, it would not permit a proffer if it related to issues already decided at the motion hearing.

Pickens invokes OCGA § 17-5-30, claiming the court failed to “receive evidence out of the presence of the jury on any issue of fact necessary to determine the motion.” He has not shown how he was harmed or prejudiced by the refusal, which he must demonstrate in order for a violation of OCGA § 17-5-30 to constitute reversible error. State v. Peabody, 247 Ga. 580, 582 (5) (277 SE2d 668) (1981).

His request was tantamount to asking the court to reconsider the motion to suppress and accept new evidence, which it was not obligated to do. This was not the type situation described in Chastain v. State, 158 Ga. App. 654 (281 SE2d 627) (1981), where “[t]he legality of the search too often cannot truly be determined until the evidence at the trial has brought all circumstances to light. New facts, new light on credibility of government witnesses, or other matters appearing at trial may cast reasonable doubt on the pretrial ruling. It then becomes the duty of the trial judge to consider de novo the issue of suppression and, if necessary, hold a hearing out of the presence of the jury.” (Citations and punctuation omitted.) Id. at 655. The motion hearing was held in compliance with the statute, and Pickens had the opportunity to testify but chose not to do so. He could not demand, due to a change of mind, the opportunity to present additional or contradictory evidence at a rehearing. Id. Accord State v. Marcus, 206 Ga. App. 385, 386 (1) (425 SE2d 351) (1992). The decision whether to set aside its previous order denying the motion to suppress was within the discretion of the trial court. Martinez-Rodriguez v. State, 195 Ga. App. 491, 493 (4) (393 SE2d 748) (1990). It was not abused.

2. The State moved to prohibit Pickens from arguing any Fourth Amendment matters to the jury during closing argument. Pickens opposed the motion, contending that in slamming the door on Officer Krueger he was simply defending his habitat, making his arrest for simple battery illegal. He contends the legality of his warrantless arrest was a jury question, citing Ridley v. State, 176 Ga. App. 669 (337 SE2d 382) (1985); Davis v. State, 172 Ga. App. 193, 194 (1) (322 SE2d 497) (1984). According to Pickens, the court committed harmful error in granting the State’s motion and not allowing him to argue the point to the jury, since testimony suggested that the search was conducted incident to illegal arrest, which would have made the fruits of the search excludable.

Pickens does not identify a place in the record where testimony suggests that his motel room was searched incident to his arrest for simple battery, and we have found none. As discussed in Division 1 (b), no search was even conducted until after contraband was seen in plain view.

Moreover, a jury determines the legality of an arrest only when the possibility of an illegal arrest would have justified the accused’s actions in defending against the arrest and thus provides a defense to the offense charged. Roberts v. State, 175 Ga. App. 326, 331 (333 SE2d 189) (1985) (Beasley, J., concurring specially).

Determining the validity of Pickens’ arrest was not to ascertain if he had a defense to the crime for which he was charged, i.e., drug trafficking, but instead was for the legal issue of evidence admissibility vis-a-vis the Fourth Amendment. Uncontroverted testimony that Pickens committed a battery was heard at the motion to suppress hearing, where the court sits as the exclusive factfinder pursuant to OCGA § 17-5-30 (a). It requires the judge to “receive evidence out of the presence of the jury on any issue of fact necessary to determine the motion.” OCGA § 17-5-30 (b). Accordingly, Pickens was not entitled to a jury decision on this issue. Rogers v. State, 155 Ga. App. 685, 686 (272 SE2d 549) (1980).

3. Two enumerations of error relate to the absence from trial of Kitty Smith, who had left her employment at the motel and moved out of state.

(a) Pickens asserts the court erred by precluding him from reading into evidence Smith’s sworn testimony taken at the motion to suppress hearing, because she could not be located to testify at trial after a diligent search. Smith testified she had given a key to Pick-ens’ room to Officer Krueger, who initially denied he had been given a key and later testified he did not remember, since at times police are given room keys in these situations and not at others. Pickens desired to use Smith’s testimony to impeach Krueger.

OCGA § 24-3-10 provides, “The testimony of a witness since deceased, disqualified, or inaccessible for any cause which was given under oath on a former trial upon substantially the same issue and between substantially the same parties may be proved by anyone who heard it and who professes to remember the substance of the entire testimony as to the particular matter about which he testifies.” This exception to the hearsay rule permits but it does not mandate admission of such testimony, especially when duplicative of other evidence admitted. A Risk Management Report prepared by motel personnel indicated Krueger was supplied with the key. See generally Chambers v. State, 205 Ga. App. 78, 79 (2) (421 SE2d 326) (1992); see also Williams v. State, 214 Ga. App. 280, 281 (4) (447 SE2d 676) (1994), aff’d, 265 Ga. 471 (457 SE2d 665) (1995): “Under OCGA § 24-3-10, the testimony of an unavailable witness given at a previous trial may be admitted at a subsequent proceeding. . . .” (Emphasis supplied.) Williams, 214 Ga. App. at 281-282 (4).

The trial court ruled that if used solely for the purpose of impeaching Officer Krueger, Smith’s testimony had no probative value. Krueger and Smith contradict one another as to the room key, but the discrepancy is immaterial because the key was not used, and there is no evidence that false testimony was given wilfully or knowingly, which Pickens also must show in order to apply the maxim “False in one thing, false in everything.” See generally Green, Ga. Law of Evidence, § 133 (4th ed. 1994).

The State contends that Smith’s entire testimony was relevant only to the Fourth Amendment issues already decided adversely to Pickens. But Smith not only took the call from the anonymous tipster, she went to the room when summoned by the police and actually saw contraband. Absent abuse, it is within the sound discretion of the court to exclude even relevant evidence “ ‘if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ ” Hicks v. State, 256 Ga. 715, 720 (13) (352 SE2d 762) (1987). The evidence would have been cumulative of Krueger’s testimony, except as to the room key, a nonmaterial matter. We find no abuse.

(b) Pickens claims the court erred in refusing to grant a continuance for him to find Smith to testify. “A motion for continuance based on absence of a witness is addressed to the sound discretion of the trial judge and an appellate court will not interfere unless it is clearly shown it has abused its discretion.” Grimes v. State, 168 Ga. App. 372, 377 (6) (308 SE2d 863) (1983).

“In all cases wherein a continuance is sought upon the ground of the absence of a witness, the movant ‘ “must make a showing of the requirements set forth in OCGA § 17-8-25 (cit.), i.e., the witness is absent, he has been subpoenaed, he does not reside more than 100 miles from the place of trial, his testimony is material, the absence is not with permission of the applicant, his testimony can be procured by the next term of court, the facts expected to be proved, and that application is not made for the purpose of delay.” (Cit.)’ [Cit.] Each of the requirements set forth in OCGA § 17-8-25 must be met before an appellate court may review the exercise of the trial court’s discretion in denying a motion for continuance based upon the absence of a witness. [Cit.]” Garrett v. State, 202 Ga. App. 463 (414 SE2d 693) (1992).

Pickens argues that Smith was a critical witness, that she was unavailable after diligent search, and that her testimony was necessary for him to receive a fundamentally fair trial under the Fourth, Fifth, Sixth and Fourteenth Amendments of the United States Constitution. He fails to show how Smith’s absence harmed him, or even that her testimony would be material, as discussed in Division 3 (a). “ ‘In order for an alleged error to be grounds for reversal, appellant must show not only error, but also ensuing harm. (Cit.)’ [Cit.]” Frost v. State, 200 Ga. App. 267, 271 (4) (407 SE2d 765) (1991). See also Gay v. State, 220 Ga. App. 78 (467 SE2d 383) (1996).

Pickens did not show he had met the statutory requirements of OCGA § 17-8-25, although his counsel knew for more than a month that the State would not call Smith as a witness. The motion for continuance was properly denied.

4. Pickens challenges the court’s denial of his motion for mistrial after witness Linn revealed the existence of the Risk Management Report prepared by motel personnel which indicated Krueger was supplied with the key to Pickens’ room, and that Smith had authorized Krueger to enter Pickens’ room. The document purportedly was generated by Smith for the motel’s risk management, and the district attorney failed to provide it to Pickens pursuant to his discovery request until the week of trial.

Pickens maintains the document was exculpatory and that the State was thus required to provide it pursuant to his Brady motion. See Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). For the reasons cited in Division 3 (a), the document was not exculpatory. Even if it were, Pickens has not shown how he was harmed, since the court allowed the document into evidence over the State’s objection. A party asserting error on appeal must show harm as well as error. Frost, supra.

5. The denial of Pickens’ motion to dismiss, based on discovery violations and destruction of evidence, is enumerated as error.

Police seized two gun cases, rolling papers, cash, pills, scales, and beepers on the scene, in addition to the drugs Pickens was charged with possessing. Much of this evidence, except for the drugs, was destroyed or otherwise unavailable at trial. Although public safety departmental policy normally requires that physical evidence be kept until case resolution, the cash was the subject of a forfeiture proceeding, and the other evidence was destroyed at the time the forfeiture order was issued. Pickens made a timely Brady motion in which he requested “[a]ny and all tangible objects intended to be introduced into evidence by the State.” The court conducted an in camera inspection of the State’s file and found no exculpatory material and denied Pickens’ motion.

“In dealing with the failure of the state to preserve evidence which might have exonerated the defendant, a court must determine both whether the evidence was material and whether the police acted in bad faith in failing to preserve the evidence. Arizona v. Young-blood, 488 U. S. 51 (109 SC 333, 102 LE2d 281) (1988). To meet the standard of constitutional materiality, the evidence must possess an exculpatory value that was apparent before it was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. California v. Trombetta, 467 U. S. 479 (104 SC 2528, 81 LE2d 413) (1984).” Walker v. State, 264 Ga. 676, 680 (3) (449 SE2d 845) (1994).

Pickens does not explain how the destroyed evidence was exculpatory. To the contrary, it was inculpatory, since such articles are collectively suggestive of illegal drug trade. Shook v. State, 221 Ga. App. 151, 152 (470 SE2d 535) (1996).

6. In three enumerations of error, Pickens challenges the sufficiency of the evidence. On appeal, it is viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; additionally, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) (1991). Each of these enumerations merely restates arguments made in other enumerations, particularly the Fourth Amendment argument: if the evidence seized in the motel room had been suppressed, there would be insufficient evidence to convict Pickens. Since the evidence was properly admitted, there was ample evidence to convict Pickens of the offense charged, under the constitutional standard.

Decided March 14,1997

Reconsideration denied March 31,1997

Ralph J. Hunstein, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Gregory J. Lohmeier, Robert M. Coker, Assistant District Attorneys, for appellee.

7. Pickens’ claims of errors in the court’s jury charge is unsupported but for mere conclusory statements. The enumeration is deemed abandoned. Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

Birdsong, P. J, and Blackburn, J., concur.


text:
    A96A2339.
    GEORGIA-PACIFIC CORPORATION v. ARLINE.
    (484 SE2d 678)
   Beasley, Judge.

Employer Georgia-Pacific Corporation appeals the superior court’s reversal of an award by the Appellate Division of the State Board of Workers’ Compensation, which had affirmed an award by an Administrative Law Judge. The appeal relates to the ALJ’s and the Appellate Division’s denial of temporary total disability benefits based on a change in condition. The claimant’s burden of proof in such cases is set out in Maloney v. Gordon County Farms, 265 Ga. 825, 828 (462 SE2d 606) (1995).

Arline suffered a compensable injury to the middle and index fingers of his left hand on March 9, 1987. As a result, Arline received a 50 percent permanent impairment rating to each of the two fingers. By August 26, 1988, Arline had received payment of permanent partial disability income benefits (OCGA § 34-9-263) resulting from these impairment ratings, which were reported paid “in full.” Georgia-Pacific Corporation made the last payment of total disability income benefits (OCGA § 34-9-261) on October 27, 1991. Arline did not seek additional disability benefits until 1994, more than two years after the last payment. He claimed they should begin as of May 20, 1994, the day he ceased work. Arline requested a hearing to recommence total disability income benefits resulting from his original March 9, 1987 injury. “[T]he term ‘change in condition’ means a change in the wage-earning capacity, physical condition, or status of an employee . . . , which change must have occurred after the date on which the wage-earning capacity, physical condition, or status of the employee . . . was last established by award or otherwise.” OCGA § 34-9-104 (a) (1). “A claim for a ‘change of condition’ is a claim for additional compensation under the original award. [It] is predicated upon the claimant’s gradually worsening condition, from the wear and tear of performing his usual employment duties and of ordinary life, to the point that he can no longer continue to perform his ordinary work.” (Citations and punctuation omitted.) Holt’s Bakery v. Hutchinson, 177 Ga. App. 154, 157 (1) (338 SE2d 742) (1985).

The ALJ and the Appellate Division found that because more than two years had elapsed since the last payment of income benefits until May 20, 1994, the effective date Arline sought for recommencement of payments, his change in condition claim was barred by OCGA § 34-9-104 (b). Although the ALJ found that Arline “developed” carpal tunnel syndrome and nerve compression in his wrist as a result of the March 1987 injury to his fingers, he specifically found that Arline was not due any additional income benefits which might have been due him within two years of Georgia-Pacific’s last payment of income benefits. Continued payments of medical expenses were not barred. OCGA § 34-9-200 (a); General Ins. Co. of America v. Bradley, 152 Ga. App. 600 (263 SE2d 446) (1979).

On appeal to the superior court, Arline argued that the two-year statute of limitation was tolled because unpaid benefits were “potentially due” within the two-year limitation period. He contended that the uncontroverted medical diagnosis of carpal tunnel syndrome in 1994 would have entitled him to additional disability benefits. The superior court agreed and reversed, interpreting the medical records as conclusively showing that because the nerve compressions which caused the carpal tunnel in Arline’s hand and wrist were in close proximity to his injured fingers, it must “naturally and necessarily have existed at the time” Arline injured his fingers in March 1987.

1. Arline’s injury was in 1987, and Georgia-Pacific concedes that the pre-1990 version of the law would apply. Prior to 1990, the law read “that at the time of application not more than two years have elapsed since the date of final payment of income benefits due.” OCGA § 34-9-104 (b) of the Act was amended in 1990 to provide “that at the time of application not more than two years have elapsed since the date the last payment of income benefits pursuant to Code Section 34-9-261 or 34-9-262 was actually made.” See discussion in Hiers & Potter, Georgia Workers’ Compensation Law & Practice, § 23-3, p. 361 (3rd ed. 1995). Under the pre-1990 version, the two-year statute of limitation found in OCGA § 34-9-104 (b) is tolled when benefits were “potentially due” before the limitation period ran. Holt’s Bakery, supra at 160 (3). “What is meant by ‘potential’ is not that the type of disability may arise in the future, but rather that there is evidence that it existed at the time although no claim was made for it.” MARTA v. Ledbetter, 184 Ga. App. 518, 519 (361 SE2d 878) (1987). If additional benefits were actually or potentially due when the last income benefits were paid, then the two-year statute of limitation does not run. To designate such payment as “last” is premature in that all disability payments to which claimant is legally entitled under OCGA § 34-9-263 have not been paid. See also Justice v. R. D. C., Inc., 187 Ga. App. 198, 199 (1) (369 SE2d 493) (1988); Bate-man v. Merico, Inc., 190 Ga. App. 710, 712 (379 SE2d 526) (1989).

The superior court applied Wesleyan College v. Mains, 207 Ga. App. 562 (428 SE2d 577) (1993), to conclude that a finding that the statute of limitation had been tolled was mandated. The court reasoned that because the ALJ found that Arline’s nerve compression and carpal tunnel syndrome diagnosed in 1994 were caused by his March 9, 1987 injury, and because Arline’s physician had opined that carpal tunnel syndrome may entitle Arline to an increased impairment rating, the “true scope” of Arline’s injury was not properly recognized in the original award, and the statute of limitation was tolled.

Wesleyan College is distinguishable. There, the ALJ specifically found that at the time of the recognized injury, an unrecognized injury existed for which the claimant was not compensated during the limitation period. In Arline’s case, the Appellate Division affirmed the ALJ’s specific finding that, although Arline’s carpal tunnel syndrome and nerve compression “developed from” the original injury to his fingers and were “caused by” it so as to constitute a superadded injury, they did not exist at the time last income benefits were paid. Evidence supported this finding.

The first reported indication of the nerve compression and carpal tunnel syndrome occurred on August 9, 1994, more than two years after the last payment in October 1991. The ALJ made a factual finding that Arline began to experience numbness and pain in his left hand radiating up to his left shoulder but did not make a finding that this indicated carpal tunnel syndrome and nerve compression. He found that the diagnostic testing after May 20, 1994, revealed carpal tunnel and left ulnar nerve compression. The first reported suggestion of carpal tunnel is August 9, 1994, the month before Arline had surgery for the carpal tunnel. The superior court, and this court, must apply the “any evidence” standard of review. Wesleyan College, supra.

Decided March 5,1997

Reconsideration denied March 31,1997

Howard & Whatley, Thomas G. Whatley, Jr., for appellant.

B. T. Edmonds, Jr., for appellee.

In making the determination that Arline’s carpal tunnel syndrome and nerve compression existed at the same time he sustained the injury to his fingers, but simply was not diagnosed as such until 1994, the superior court substituted itself as factfinder, which is prohibited. OCGA § 34-9-105 (c) and (d). See Fox v. Liberty Mut. Ins. Co., 125 Ga. App. 285, 288 (187 SE2d 305) (1972); Travelers Ins. Co. v. Purcell, 152 Ga. App. 279 (1) (262 SE2d 566) (1979); Wesleyan College, supra. The scope of the superior court’s jurisdiction is limited by OCGA § 34-9-105. “On appeal, a finding of fact made by the [Appellate Division] when supported by any evidence, is conclusive and binding on the superior court as well as this court. Neither we nor the superior court have any authority to set aside an award based on supported findings of fact merely because we might disagree with the conclusions reached therein.” Wesleyan College, supra. This rule was not changed by the 1994 amendment to OCGA § 34-9-103, which became effective before the ALJ hearing in this case. Ga. L. 1994, p. 887, § 8.

2. The employee’s claim for increased permanent partial disability rating, decision on which was reserved by the ALJ and the Appellate Division, is also foreclosed by the statute of limitation. Although the current version of OCGA § 34-9-104 (b) permits claims for benefits under OCGA § 34-9-263 (“compensation for permanent partial disability”) to be filed “not more than four years from the date the last payment of income benefits pursuant to Code Section 34-9-261 or 34-9-262 was actually made . . . ,” the pre-1990 version of OCGA § 34-9-104 (b), which provides for a two-year limitations period for claims under § 34-9-263, is applicable to this case since the injury occurred in 1987. The superior court erred in remanding the case for this purpose.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A97A0222.
    APPERSON v. THE STATE.
    (484 SE2d 739)
   McMurray, Presiding Judge.

Defendant Apperson appeals his conviction of the offenses of driving under the influence and speeding. Held:

1. Prior to trial, the State served notice of its intent to introduce similar transaction evidence at trial. After the jury was sworn, the trial court addressed the issue of the State’s notice of intent to introduce similar transaction evidence, and after a brief colloquy during which the prosecutor stated the substance of the testimony which he expected the similar transaction witness to give, the trial court ruled that the similar transaction testimony would be admitted.

The similar transaction witness was the last presented by the State and testified as to a prior occurrence during which he stopped defendant after being informed by a police dispatcher that defendant’s vehicle had run over a curb while leaving a store parking lot. The similar transaction witness testified as to asking defendant to perform a field sobriety test and his refusal to do so, but was not permitted to answer a question before the jury concerning whether he smelled any odor about defendant. Outside the presence of the jury, the witness testified as to a strong odor of alcohol about defendant and that his speech was slurred. Perhaps based in part on challenges to the authority of the similar transaction witness to make the stop of defendant, the trial court determined that a sufficient proffer had not been made to permit admission of the similar transaction evidence. Upon the return of the jury, the jurors were instructed that the trial court had ruled out the similar transaction evidence, that they were to draw no inferences of any kind from the matter taken up in that regard, and that they were to disregard and not consider it in any way.

Defendant’s first three enumerations of error are concerned with the attempt to introduce similar transaction evidence. These contentions raise issues as to a failure to hold an appropriate hearing pursuant to Uniform Superior Court Rule 31.3, and the admission of hearsay and other inappropriate similar transaction evidence. Nonetheless, the trial court’s eventual ruling sustained defendant’s objections and excluded the proffered similar transaction evidence including striking that testimony which had been presented before the jury. There was no further objection or other request for action following this ruling and the curative instructions. Under these circumstances there is nothing preserved for appellate review. McCoy v. State, 194 Ga. App. 244, 245 (4) (390 SE2d 251); Hall v. State, 180 Ga. App. 881, 882 (3), 883 (350 SE2d 801).

2. Defendant’s remaining enumeration of error challenges the sufficiency of the evidence to authorize his conviction for driving under the influence. “ ‘OCGA § 40-6-391 (a) (1) makes it unlawful for a person to “drive or be in actual physical control of any moving vehicle while: Under the influence of alcohol to the extent that it is less safe for the person to drive. . . .” There is no requirement that the person actually commit an unsafe act.’ Moss v. State, 194 Ga. App. 181, 182 (390 SE2d 268). ‘Public drunkenness requires proof that a person is and appears to be in an intoxicated condition, which, is manifested by boisterousness, indecent condition or act, or by'vulgar, profane, loud or unbecoming language’; ‘(t)he offense of driving under the influence of alcohol to the extent it is less safe to drive does not require that any of these facts be alleged and proved.’ (Emphasis supplied.) State v. Tweedell, 209 Ga. App. 13 (432 SE2d 619). Moreover, driving a motor vehicle while under the influence of alcohol may be established by circumstantial evidence. Schoicket v. State, 211 Ga. App. 636, 637 (2) (440 SE2d 65).” Lewis v. State, 214 Ga. App. 830, 831 (1) (449 SE2d 535).

On the evening in question, defendant was first followed by a Polk County deputy sheriff for a distance of six to ten miles. The deputy’s attention was drawn to defendant’s vehicle by its high rate of speed. In following the vehicle the deputy noted an erratic pattern in which the vehicle was being driven, at times speeding up to 70 or 75 mph and at other times slowing to 40 or 45, and also that it was weaving from one side of its lane to the other. When the deputy first noticed defendant’s vehicle, they were in Floyd County and his intention was to wait until they entered Polk County before stopping the defendant’s car. But a dispatch call required that he abandon this intention in order to respond to a higher priority situation. The deputy radioed his dispatcher telling him that he was behind a possibly intoxicated driver along with a description of the car and tag number.

A state trooper received the information concerning the possibly intoxicated driver and soon spotted and followed defendant’s vehicle. Defendant accelerated to a speed of 73 mph in a 45-mph speed limit zone with the state trooper approximately one car length behind him. As he followed defendant, the trooper observed defendant cross over into the center turn lane of the roadway for no apparent reason. The trooper then turned on his blue light to stop defendant, but defendant continued on for some distance past a number of reasonable opportunities to pull over before finally stopping.

Defendant denied that he had been drinking, but the trooper smelled a strong odor of alcoholic beverage about his breath. The trooper requested but defendant refused to perform an alco-sensor field sobriety test.

The trooper concluded that defendant was a less safe driver due to alcohol consumption based on the information which had been provided him by radio, his observation of defendant’s excessive speed and the driving into the center lane for no apparent reason, the strong odor of alcoholic beverage, the lack of desire to take the alcosensor breath test, and his other observations of defendant’s driving methods. The state trooper, who testified to being an investigating officer in over 300 driving under the influence cases over the span of 17 years service, was authorized to give his opinion as to defendant’s state of sobriety and as to whether he was a less safe driver. Lewis v. State, 214 Ga. App. 830, 831 (1), 832, supra.

Decided March 17,1997

Reconsideration denied March 31,1997

Pierce Winningham III, for appellant.

James R. Osborne, District Attorney, David B. Fife, Assistant District Attorney, for appellee.

Defendant was placed under arrest for driving under the influence. After his arrest defendant continued to refuse to submit to any State-administered test for the purpose of determining if he was under the influence of alcohol or drugs. Later, after being transported to jail, defendant volunteered that he actually had been drinking that night and the reason he did not take the blood test is he knew that he could beat the case in court without a blood test and that the reason he did not initially stop was that he was drinking shaving lotion to mask the alcoholic beverage that he would have about his breath.

Review of the transcript reveals ample evidence from which a rational trier of fact could have found defendant guilty beyond a reasonable doubt of the offense of driving under the influence of alcohol. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Lewis v. State, 214 Ga. App. 830, 831 (1), 832, supra.

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A95A1426.
    A95A1427.
    SEARS MORTGAGE CORPORATION et al. v. LEEDS BUILDING PRODUCTS, INC. WEIBLEN v. LEEDS BUILDING PRODUCTS, INC.
    (488 SE2d 131)
   Ruffin, Judge.

In Divisions 1 and 2 of Sears Mtg. Corp. v. Leeds, 219 Ga. App. 349 (464 SE2d 907) (1995), we held that the trial court erred in granting summary judgment in these companion cases to Leeds Building Products, Inc. on the appellants’ claims for wrongful foreclosure because the deeds which were subject to foreclosure were not properly attested or acknowledged. On certiorari, the Supreme Court considered these appeals and reversed those holdings. Leeds Bldg. Products v. Sears Mtg. Corp., 267 Ga. 300 (477 SE2d 565) (1996). The Supreme Court, however, affirmed our holding in Division 3 of the opinion. Id. at 301, n. 2. Accordingly, our decision is vacated with respect to Divisions 1 and 2, the judgment of the Supreme Court is made the judgment of this Court with respect to Divisions 1 and 2, and the trial court’s judgment is affirmed.

Decided March 31,1997.

Glen E. Stinson, for appellants (case no. A95A1426).

Perrie, Buker, Stagg & Jones, Robert E. Stagg, Jr., Shaw & Evans, Cheryl V. Shaw, for appellant (case no. A95A1427).

Siegel & Golder, Mark L. Golder, for appellee.

Judgment affirmed.

Pope, P. J., and Beasley, J, concur.


text:
    A97A0155.
    DIAZ v. GWINNETT COUNTY et al.
    (485 SE2d 42)
   Judge Harold R. Banke.

Jose E. Diaz appeals the summary judgment granted on the basis of sovereign immunity to two Gwinnett County employees.

Asserting that he contracted hepatitis B while performing undercover narcotics investigative work, Diaz sued Gwinnett County (“County”), his supervisors, Steven F. Schildecker, the director of the Gwinnett County Department of Public Safety, and Wayne Bolden, the Chief of Police of Gwinnett County, in their individual and official capacities. Diaz contended that he contracted hepatitis B during the summer of 1991 when he came into contact with a known drug dealer, Larry “Butch” Harris, who had a severe cough. After discovering that Harris was positive for HIV and infected with hepatitis B, Diaz requested and obtained blood tests in November 1991 for both diseases, testing positive only for the latter.

Diaz asserted claims for intentional infliction of emotional distress, and breach of private and public duties. Diaz alleged that Schildecker and Bolden knowingly and consciously refused to comply with the requirements of OCGA § 31-35-1 et seq. The gravamen of Diaz’s complaint is that Schildecker and Bolden breached an affirmative duty based on OCGA § 31-35-1 to vaccinate him against hepatitis B. Diaz alleged that the County officials knowingly and intentionally failed to inform public safety officers about the dangers of hepatitis B, failed to provide vaccinations at County cost and failed to seek funding for hepatitis vaccinations. Held:

Diaz’s sole enumeration is that summary judgment was erroneously granted because factual issues remain for jury resolution. Pretermitting consideration of whether Diaz’s claims are barred by the exclusive remedy provision of the workers’ compensation statute, or whether they are barred by the statute of limitation for tort claims, we find that Schildecker and Bolden are entitled to summary judgment as a matter of law.

Although a county’s sovereign immunity for torts can be waived by legislative act, Diaz cites no authority for the proposition that OCGA § 31-35-1 et seq. was enacted to accomplish that purpose. See Gilbert v. Richardson, 264 Ga. 744, 748 (3) (452 SE2d 476) (1994). In fact, a plain reading of the statute shows that it did not create a general duty for counties to vaccinate certain specified county employees. See OCGA § 31-35-1 et seq. Rather, the statute only requires a county to vaccinate “at the request of the . . . public safety officer for protection against hepatitis B.” OCGA § 31-35-3. By enacting this statute, the legislature ensured that payment for vaccinations will be borne by the employing entity or by the governing authority. Id.

Notwithstanding his claim to the contrary, Diaz failed to show that either public official owed a duty to him or breached that duty. Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). Diaz failed to offer any evidence establishing the existence of a special relationship between him and the public officials or an affirmative undertaking taken on his behalf. City of Rome v. Jordan, 263 Ga. 26, 29 (2) (426 SE2d 861) (1993) (special relationship created by making: (1) explicit assurance through promises or actions to act on party’s behalf; (2) knowledge that inaction could lead to harm; and (3) injured party shows his justifiable or detrimental reliance on affirmative undertaking).

Nor is this a case where a ministerial act was negligently performed or a ministerial or discretionary act was performed with malice, an intent to injure, or wilfulness. Gilbert, 264 Ga. at 753 (6); see McDay v. City of Atlanta, 204 Ga. App. 621, 622 (2) (420 SE2d 75) (1992). Diaz offered no evidence that Schildecker or Bolden performed their discretionary duties corruptly or acted maliciously toward him or recklessly disregarded his safety. See Logue v. Wright, 260 Ga. 206 (392 SE2d 235) (1990). Although Diaz claimed that County training officers were instructed not to inform employees about the provisions of OCGA § 31-35-1, he offered no admissible evidence in support of this contention. It is undisputed that neither Schildecker nor Bolden prevented Diaz from obtaining a vaccination from his own personal physician or elsewhere.

Decided March 31,1997.

Carla E. Brown, for appellant.

Boyce, Ekonomou & Atkinson, John E. Underwood, Sr., for appellees.

Diaz admits that he never made a request to either Schildecker or Bolden or the County to be vaccinated or to be reimbursed for obtaining the vaccination at his own expense. In fact, Diaz conceded that he was not aware that a vaccine for hepatitis B was available. Diaz also admitted that he never sought to be vaccinated before coming into contact with Harris or before testing positive for the disease in November 1991.

Inasmuch as the record contains no evidence that Schildecker or Bolden acted maliciously, wilfully, or corruptly, there was no waiver of their official immunity. McDay, 204 Ga. App. at 622 (2). For the above reasons, the trial court did not err in granting summary judgment.

Judgment affirmed.

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

       Diaz offered no medical evidence that hepatitis B could be transmitted through casual contact.

       A federal court dismissed Diaz’s federal constitutional claims.