text:
    A98A1838.
    BECK v. THE STATE.
    (510 SE2d 368)
   Judge Harold R. Banke.

Lonnie Ray Beck was convicted of the offenses of aggravated battery and aggravated assault for shooting his wife. On appeal, Beck asserts three errors all of which relate to his own incriminating custodial statement.

The underlying case arose after Beck, his wife, and his brother, Billy Beck, had consumed large amounts of beer and liquor while listening to country music. Before and during the trial, the three Becks offered divergent and inconsistent versions of the salient events. Notwithstanding a subsequent retraction, while in custody and after being advised of his rights under Miranda, Beck confessed that during a fight he became angry with his wife, went to the bedroom and retrieved his pistol from its hiding place. Beck then returned to the living room and shot his wife in the back with the .357 handgun. Beck emptied out the remaining shells then instructed his brother to hide the gun. According to his witnessed statement, Beck confessed, “I shot Mary Ruth because I was mad and fighting with her, not because I was planning to murder her.”

The trial court conducted a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964) to determine the voluntariness of Beck’s confession and whether the statement was taken after Beck had invoked his right to counsel. The interrogating officer, GBI Special Agent Wayne White, testified that prior to taking the statement he advised Beck of his constitutional rights and methodically proceeded question by question down the standard waiver form. According to White, Beck indicated that he fully understood his rights and at no time stated that he wanted to talk to an attorney before making the statement. White further testified that he did not threaten, coerce, or intimidate Beck or promise anything to him.

Five days before this interview, Beck had completed an application for court-appointed counsel. Beck argued that after the submission of this application, the State could not question him without the presence of counsel. Also, according to Beck, he had asked White, “[w]hen can I see my lawyer?” or “[w]hen could I see my lawyer?”

The trial court determined that Beck’s application for appointed counsel was a request for an attorney within the meaning of the Sixth Amendment for assistance in proceedings and at trial. The court did not find that Beck’s inquiry about when in the future he could see a lawyer constituted an invocation of the Fifth Amendment right of counsel. Held:

1. Beck contends that the tried court erred in finding that his custodial statement was freely and voluntarily made because he is barely literate and was not in control of himself at the time of the interview due to worry, stress, and lack of sleep.

No evidence was presented at the suppression hearing that Beck is mentally retarded or lacked the capacity to consent. Raulerson v. State, 268 Ga. 623, 625-626 (2) (a) (491 SE2d 791) (1997). See Denney v. State, 170 Ga. App. 692, 693 (1) (318 SE2d 85) (1984). Beck initialed in the appropriate spaces and signed his name at the bottom of the waiver form. Beck’s reading ability, even if limited, did not render his confession inadmissible. State v. Osborne, 174 Ga. App. 521-522 (330 SE2d 447) (1985) (lack of education or illiteracy will not invalidate an otherwise valid waiver). Because the evidence supports the trial court’s finding that the statement was voluntary, we find no error. Bright v. State, 265 Ga. 265, 280 (5) (b) (455 SE2d 37) (1995).

2. Beck’s contention that the admission of the confession violated his Fifth and Sixth Amendment rights is without merit.

A defendant who invokes the Fifth Amendment right to counsel during a custodial interrogation cannot be subjected to further questioning until counsel is made available or unless the defendant subsequently initiates communication. State v. Hatcher, 264 Ga. 556, 557 (448 SE2d 698) (1994); Davis v. United States, 512 U. S. 452 (114 SC 2350, 129 LE2d 362) (1994); see Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981). As a protection against self-incrimination, if the suspect invokes his right to counsel, the questioning must cease.

However, the mere completion of an application to obtain appointed counsel, without more, is not sufficient to invoke the Fifth Amendment right. Hatcher, 264 Ga. at 557. The Fifth Amendment right to assistance of counsel during custodial interrogations is triggered by a suspect’s invoking that right. Hatcher, 264 Ga. at 557-558. This, Beck failed to do. White testified that Beck did not request the presence of an attorney at any time. Nor did Beck’s inquiry about when in the future he could see a lawyer expressly indicate that Beck desired counsel to be present before making a statement. Beck initialed and signed the waiver form that he understood his rights. Factual and credibility findings made by a trial court, as here, pursuant to a suppression hearing, must be accepted unless clearly erroneous. Cox v. State, 248 Ga. 713 (1) (285 SE2d 687) (1982). Here, we find no error.

The right to assistance of counsel under the Sixth Amendment attaches only at the initiation of adversarial proceedings. Hatcher, 264 Ga. at 558. Because at the time of the custodial interrogation no adversarial proceedings had yet been initiated, no Sixth Amendment concerns had yet come into play. Id. See State v. Simmons, 260 Ga. 92, 94 (390 SE2d 43) (1990) (defendant’s right to presence of counsel triggered by critical stage of prosecution).

3. Beck claims that the court erred in charging the jury that it could consider the legality of his detention in determining the voluntariness of his confession.

The court instructed the jury that it could consider “the legality, duration and conditions of detention as one factor relevant to the question of whether or not a statement was made; and, if so, if it was freely and voluntarily made.” Beck contends that by combining “legality,” “duration,” and “conditions” into one factor, the jury was deprived of the opportunity to consider each factor separately.

But in his sole objection, Beck excepted only to part of the following sentence: “[h]owever, under our law in order for a statement to be excluded because of illegal detention, it must be shown that the statement was, in fact, induced by such illegal detention.” Thus, Beck failed to object to that part of the charge combining the three factors which he now claims was error. Where an entirely different objection is argued in a brief, as here, than was asserted at trial, we will not consider it. Ellison v. State, 216 Ga. App. 639, 641 (3) (455 SE2d 361) (1995); Morgan v. State, 212 Ga. App. 394, 395 (1) (442 SE2d 257) (1994) (issue not raised at trial cannot be asserted for the first time on appeal).

Decided December 9, 1998.

Sorgen & Schindelar, Lawrence S. Sorgen, for appellant.

Darrell E. Wilson, District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J, and Smith, J., concur.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A98A1894.
    LEMING v. THE STATE.
    (510 SE2d 364)
   Judge Harold R. Banke.

A jury convicted Richard Lamar Leming of possession of marijuana and possession of marijuana with intent to distribute. On appeal, Leming contests the denial of his motion to suppress and the sufficiency of the evidence.

The underlying case arose after a female clerk, working at an all-night convenience store, telephoned police to report a suspicious vehicle parked outside the store. The responding officer arrived at 5:30 a.m. within a minute of that call. After discovering Leming slumped behind the steering wheel, Officer Perry McCormick tapped on a car window to get Leming’s attention. When Leming exited the vehicle, the officer explained that he had received a suspicious vehicle call and asked Leming whether he needed any help. Almost immediately, Leming appeared hostile and began waving his arms. While responding to questions, Leming slurred his speech and seemed incoherent and possibly under the influence of alcohol or another substance. According to McCormick, Leming seemed to be positioning himself to run. Notwithstanding the fact that the keys were dangling from the ignition switch, Leming claimed that his mother had dropped him off there and that he was awaiting a ride to work from a friend. After Leming became excited and belligerent, the officer and his back-up decided for their own safety to place Leming in handcuffs. During a pat-down search, police found a hypodermic syringe with a needle pointed upward in Leming’s shirt pocket, a pill bottle and $126 in cash. After placing Leming inside a police cruiser, one officer noticed a green leafy substance on the floorboard lying in plain view. During a search of the vehicle, investigators discovered a brown paper bag containing several bags of individually wrapped marijuana, a small set of scales, and a large soup spoon. Concerned that Leming may have overdosed on drugs, police summoned medical assistance. Held:

1. Leming contends that the trial court erred in admitting evidence obtained as a result of an illegal Terry stop and search.

When reviewing a trial court’s ruling on a motion to suppress, we must construe the evidence most favorably toward upholding the court’s findings and judgment unless they are clearly erroneous. Ledford v. State, 220 Ga. App. 272, 273 (469 SE2d 401) (1996). Since the trial court sits as the trier of fact, its findings are analogous to a jury verdict. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

In performing their duties, officers may generally ask questions of individuals who are not “suspects,” as long as the officers do not convey the message that compliance with their requests is mandatory. State v. Willis, 207 Ga. App. 76, 77 (427 SE2d 306) (1993). Conducting a limited investigatory inquiry of the occupant of a vehicle does not necessitate probable cause. Mallarino v. State, 190 Ga. App. 398, 401 (2) (379 SE2d 210) (1989).

Here, it is undisputed that an investigator sought to pursue a limited inquiry into the circumstances surrounding Leming’s presence on the premises. But, while being asked routine questions, Leming became hostile causing the officers to become concerned about their personal safety. See Reddin v. State, 223 Ga. App. 148, 150 (2) (476 SE2d 882) (1996) (officers are entitled to take reasonable measures to ensure their own safety). Leming’s threatening behavior, his apparent intoxicated and agitated condition, his possession of the syringe, and his implausible explanation for his presence behind the steering wheel constituted sufficient probable cause for a warrant-less arrest. Buffington v. State, 229 Ga. App. 450, 451-452 (494 SE2d 272) (1997). See Wright v. State, 189 Ga. App. 441, 443 (1) (375 SE2d 895) (1988); Johnson v. State, 258 Ga. 506, 507 (2) (371 SE2d 396) (1988). The search of Leming’s car was incident to that arrest. Allison v. State, 217 Ga. App. 580, 581 (1) (459 SE2d 557) (1995). Having considered the evidence in a manner favorable toward the trial court’s finding, we cannot say that the denial of the motion to suppress was clearly erroneous. Sutton v. State, 223 Ga. App. 721, 722 (1) (478 SE2d 910) (1996).

2. We must reject Leming’s challenge to the sufficiency of the evidence. Leming was in sole possession and control of a vehicle containing marijuana bags individually packaged for resale, a set of scales, and a spoon with residue. See Coleman v. State, 229 Ga. App. 642, 643 (494 SE2d 549) (1997). A State forensic chemist testified that the leafy material was marijuana weighing about 72.1 grams. A narcotics agent testified that based upon his training and experience the packaging of the seven bags of marijuana was consistent with resale purposes. The drug agent confirmed that the scales confiscated were the type typically used by drug dealers to weigh marijuana. This evidence was sufficient within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to support the conviction for possession with intent to distribute.

Decided December 9, 1998.

Steven M. Ellis, for appellant.

Herbert E. Franklin, Jr., District Attorney, Bruce E. Roberts, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.


text:
    A98A1950.
    In the Interest of D. N. M., a child.
    (510 SE2d 366)
   Judge Harold R. Banke.

The biological father of ten-year-old D. N. M. appeals the termination of his parental rights. In two enumerations, he argues that the evidence of present parental unfitness was insufficient.

The Department of Family & Children Services (“DFCS”) had a lengthy history of involvement with this family which included concerns that the child’s mother was physically abusing D. N. M. and using drugs. DFCS took custody of the child in May 1995 after she began masturbating in a hospital corridor while barefoot, sickly and hungry, during a visit to her mother and a premature sibling who subsequently died. Held:

The record provides clear and convincing evidence of the father’s misconduct and inability and supports a finding that termination of his parental rights is in the child’s best interest. OCGA § 15-11-81 (a). Thus, the juvenile court’s decision is not subject to reversal. Id.

The mother’s relationship with D. N. M.’s father terminated in 1989, shortly after the child was born. After that, “he came by the house a few times,” but never paid child support. He did not see D. N. M. during the four years prior to the court proceedings and visited her only twice in the years since DFCS obtained custody.

In an unappealed order issued in May 1995, the juvenile court found D. N. M. deprived. In the Interest of C. D. F., 222 Ga. App. 905, 907 (1) (476 SE2d 654) (1996) (parties are bound by unappealed findings of deprivation); OCGA § 15-11-81 (b) (4) (A) (i). Because the father’s almost total lack of involvement in D. N. M.’s welfare left the child vulnerable to the neglect and abuse her mother inflicted upon her, we find that his lack of proper care and control was the cause of her deprivation. OCGA § 15-11-81 (b) (4) (A) (ii).

Decided December 9, 1998.

Hughes & Kaplan, Barry E. Kaplan, for appellant.

Thurbert E. Baker, Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, Rich & Smith, Michael T. Smith, John L. Welsh II, for appellee.

The record shows that in May 1997 the father was adjudicated an incapacitated adult due to a stroke and received a temporary guardian. The order indicated that he had no personal property of any value and no real property. The record also shows that his parental rights to three other children from a different mother were terminated in 1996 due to his physical abuse, neglect, incarceration, and unrehabilitated alcohol abuse. That evidence, combined with the father’s neglect of D. N. M. and his failure to present any evidence controverting that offered against him, clearly and convincingly supports the juvenile court’s conclusion that the deprivation was likely to continue. Notwithstanding the father’s contention to the contrary, the court was entitled to consider the parent’s past conduct in determining whether the deprivation was likely to continue. OCGA § 15-11-81 (b) (4) (A) (iii); In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991). The father’s total failure to provide for the child’s care and support as required by law also justifies the juvenile court’s decision. OCGA § 15-11-81 (b) (4) (C) (ii).

The record shows that the child’s behavior has improved since she was placed in DFCS custody, but she continues to need regular counseling and a stable, consistent home environment, evidence which prevents us from finding error in the juvenile court’s implicit conclusions that continued deprivation would seriously harm the child and termination was in her best interest. OCGA § 15-11-81 (a) and (b) (4) (A) (iv). The father’s failure to enumerate as error the purported insufficiency of service on him precludes our review of that issue. Ware v. State, 232 Ga. App. 165, 166 (1) (500 SE2d 601) (1998).

Judgment affirmed.

Johnson, P. J, and Smith, J., concur.

       The mother’s appeal of the termination of her parental rights was dismissed for failure to timely file her brief.


author: Blackburn, Judge.

text:
    A98A0937.
    FOX v. THE STATE.
    (509 SE2d 75)
   Blackburn, Judge.

David Fox appeals his convictions for possession of marijuana with intent to distribute and possession of a firearm by a convicted felon, contending the trial court erroneously denied his motion to suppress the drug evidence discovered during a search of his residence. Fox contends that the search resulted from an unenforceable condition of probation on a previous conviction, which was not imposed by the trial judge, but rather was added by the probation officer. The record does not clearly establish whether or not the sentencing judge in the prior case imposed the special search condition, and the trial court in this case made no findings on this issue.

“On [a] motion to suppress evidence, the trial judge sits as the trior of the facts, hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. State v. Swift, 232 Ga. 535, 536 (1) (207 SE2d 459) (1974).” (Citation and punctuation omitted.) Wells v. State, 206 Ga. App. 513, 515 (1) (426 SE2d 231) (1992). Here, the trial judge determined that Fox had waived his Fourth Amendment rights and had freely and voluntarily accepted such condition.

In 1995, Fox pled guilty to burglary in Bartow County and was sentenced to ten years probation. The special condition form, which Fox freely and voluntarily signed, provided that “Probationer shall submit to a search of his/her person, houses, papers and/or effects as those terms of the Fourth Amendment of the United States Constitution are defined by the Court, any time of the day or night, with or without a search warrant whenever requested to do so by a probation supervisor or any law enforcement officer.” The form acknowledged: “I [Fox] freely and voluntarily accept the above rules and special conditions and agree to abide by them as a condition of my being allowed to serve my sentence on probation.” It is clear that Fox was aware of and accepted the fact that he was waiving his right to object to the subject search and agreeing thereto.

In August 1996, Cherokee County Deputy Sheriff Jay Baker received a tip from an informant that Fox was selling marijuana. Baker obtained a copy of Fox’s conditions of probation from the Bar-tow County probation office. Baker went to Fox’s residence along with other officers and identified himself as a narcotics agent. Baker showed Fox a copy of his conditions of probation and explained that he was there to do a probation search of the property. Baker testified that Fox said “okay,” and did not object to the search. Fox testified that he did not object to the search because “I didn’t think I had any choice.” Baker searched the house and located marijuana and a firearm.

Fox was charged in Cherokee County with possession of marijuana with intent to distribute and possession of a firearm by a convicted felon. Fox moved to suppress the drugs and weapon found at the house, contending they resulted from an unlawful search. He argued that the special condition of probation was invalid because, among other things, it had not been properly imposed by the sentencing judge in Bartow County and thus did not become part of his sentence. The burden of establishing this point on the record was on Fox. While Fox’s attorney represented to the trial court that the judge in Bartow County had recently allowed Fox to withdraw his plea in that case because he had not been properly advised of the Fourth Amendment waiver contained in the special condition, there is no evidence of record to support this contention. Even if true, the prior judge’s allowance of the withdrawal of his plea would not invalidate the present search. The trial court denied Fox’s motion to suppress and convicted him after a bench trial. Fox appeals the denial of his motion to suppress, raising several arguments as to why the special condition of probation was invalid.

1. Fox contends the special condition is invalid because it was not mentioned during the plea negotiations in the Bartow County case or by the sentencing judge when he orally accepted the plea. The parties stipulated in the guilty plea hearing in Bartow County that the conditions of probation were not specifically outlined by the trial judge at sentencing. The court stated as follows: “Sentence him to 10 years. He can serve it on the outside on probation conditioned on 4 to 6 months in the diversion center; $1,000 fine; fine surcharges; $20 a month probation maintenance fee.” No mention was made of the special condition of probation.

After the judge orally imposed this sentence, Fox was taken to a probation officer who showed him a form containing general and special conditions of probation. Fox’s attorney was not present at this interview. The officer explained the special conditions, including the condition that Fox consent to searches whenever requested by law enforcement officers or probation officers. Fox did not object to any of these conditions, and signed the form indicating that he understood and agreed to the conditions. This form was attached to the written sentence signed by the judge, although the record does not reflect whether the form was attached before or after the judge signed the sentence.

However, “[a]n oral declaration as to what the sentence shall be is not the sentence of the court; the sentence signed by the judge is.” Curry v. State, 248 Ga. 183, 185 (4) (281 SE2d 604) (1981). Accordingly, if the special condition was properly included in the written sentence imposed by the judge, whether it was discussed during the plea hearing would not affect the validity of the sentence, although it might provide grounds for withdrawal of the plea.

We note that this case involves a motion to suppress in the Cherokee County case, and not a motion to withdraw Fox’s guilty plea in the Bartow County case. There is no indication in the record that Fox sought to withdraw his guilty plea prior to the search of his residence at issue here. No order permitting the withdrawal of Fox’s prior guilty plea is contained in the record on appeal, however. Moreover, the fact that the guilty plea was withdrawn after the search at issue would not affect the validity of the search.

2. In State v. Sapp, 214 Ga. App. 428, 432 (3) (448 SE2d 3) (1994), we discussed a situation involving a special condition of probation nearly identical to the one in question in this case. We stated that “[b]y accepting this special condition of probation, and to the extent a search and seizure was not otherwise tainted without subsequent attenuation so as to compel invocation of the exclusionary rule, appellee waived his Fourth Amendment right. See Allen v. State, 258 Ga. 424 (369 SE2d 909) [(1988)]; Nelson v. State, 199 Ga. App. 487, 488 (3) (405 SE2d 310) [(1991)]. A search conducted pursuant to a special condition of probation need not be made as a routine incident of the probation supervision process. Hancock v. State, 205 Ga. App. 890, 891 (424 SE2d 77) [(1992)]; State v. Bethune, 207 Ga. App. 340 (427 SE2d 795) [(1993)]; but cf. Luke v. State, 178 Ga. App. 614, 616 (2) (344 SE2d 452) [(1986)]. The rule is that there must be some conduct reasonably suggestive of criminal activity to ‘trigger’ the search. Anderson v. State, 209 Ga. App. 676, 677 (434 SE2d 122) [(1993)]. It can be prompted by a good-faith suspicion, arising from routine police investigative work. Hancock, supra; accord Bethune, supra. Accordingly as a general rule, the police can search a probationer, who is subject to such a special condition of probation, at any time, day or night, and with or without a warrant, provided there exists a reasonable or good-faith suspicion for search, that is, the police must not merely be acting in bad faith or in an arbitrary and capricious manner (such as searching to harass probationer). Anderson, supra; Hancock, supra.” (Punctuation omitted.) Id. at 431-432 (3).

In this case, the search of Fox’s residence was based upon a reasonable suspicion as to the presence of marijuana, and the record does not establish that the police acted in bad faith or in an arbitrary or capricious manner. Fox’s contention that the search was invalid because it was conducted by law enforcement officers, and not by a probation officer, has been consistently rejected by this Court. See Hancock, supra; Bethune, supra at 341. Fox’s reliance on Griffin v. Wisconsin, 483 U. S. 868 (107 SC 3164, 97 LE2d 709) (1987) for the proposition that probation searches must be conducted by probation officers is without merit. Although Griffin noted that probation officers are “supposed to have in mind the welfare of the probationer,” it did not hold that a search by a law enforcement officer would be violative of the Fourth Amendment. Id. at 876. Moreover, Griffin did not deal with the validity of a Fourth Amendment waiver, but with whether a warrantless search of a probationer’s residence pursuant to a state regulation constituted a “reasonable” search.

Fox’s contention that the special condition was invalid because it was applied to all probationers in Bartow County is also without merit. He contends that, to be valid, such a condition must be tied to a particular need for supervision in his case. However, the regulation in Griffin applied to all probationers throughout the state, without regard to their particular circumstances. The U. S. Supreme Court did not justify its decision in that case based on the state’s need to supervise particular types of probationers, but on its general need to supervise its probation system. Id. at 873. Moreover, the Supreme Court of Georgia has held that a similar condition of probation “relates in a rational way to the purpose underlying the sentencing objective, to prevent [defendant’s] involvement in criminal activity by monitoring his conduct while he serves the probationary part of his sentence.” Allen v. State, 258 Ga. 424, 425 (3) (369 SE2d 909) (1988). Although the Court noted that the defendant in Allen had a history of criminal activity, it did not hold that such history is a prerequisite to imposing a special condition of probation.

Fox argues that his rights under the Georgia Constitution are broader than those granted by the Fourth Amendment to the U. S. Constitution. However, Fox cites no authority to support his claim that the search, although conforming to the Fourth Amendment, violated the state constitution. Article I, Sec. I, Par. XIII of the state constitution is virtually identical to the Fourth Amendment. See Smoot v. State, 160 Ga. 744, 747 (128 SE 909) (1925) (noting that state provision followed Fourth Amendment). It is true that Georgia law differs somewhat from federal law regarding the suppression of evidence seized during an improper search. See OCGA § 17-5-30; Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992) (holding that “good-faith” exception to exclusionary rule adopted by U. S. Supreme Court is inapplicable in Georgia due to application of OCGA § 17-5-30). However, this difference relates to the use of evidence seized during an unlawful search, and has no bearing on whether the search was lawful in the first instance. Indeed, case law indicates that the ability to conduct a warrantless search of a probationer is at least as great under state law as under federal law. See Sapp, supra.

Accordingly, under the record before us, the special condition was validly imposed and constituted a valid waiver of Fox’s rights under the Fourth Amendment and the state constitution, as determined by the trial court and the subsequent search was a valid implementation of such special condition.

Decided November 6, 1998

Reconsideration denied December 10, 1998

John A. Nuckolls, for appellant.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.

The State has the burden of showing consent to a search was freely and voluntarily given. Beasley v. State, 204 Ga. App. 214, 216 (1) (419 SE2d 92) (1992). A consent to search must be the product of an essentially free and unrestrained choice by its maker, and the voluntariness of a consent is determined by looking to the totality of the circumstances. Id.

In this case, there was evidence which supports a claim that Fox voluntarily consented to the search. Deputy Baker testified that, when he showed Fox a copy of his conditions of probation and explained that he was there to do a probation search of the property, Fox said “okay,” and did not object to the search. While Fox testified that he did not object to the search because “I didn’t think I had any choice,” the trial court was not required to believe defendant, and the ruling of the trial court will not be overturned absent an abuse of discretion.

The trial court’s written order denying the motion to suppress did not indicate the grounds for the ruling or contain any findings of fact regarding the issue of consent. The transcript of the motion to suppress hearing indicates that the trial court denied the motion based on the Fourth Amendment waiver contained in the special condition of probation, and not on Fox’s consent at the time of the search.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       The transcript of the trial was not included in the appellate record. However, the parties have stipulated that the sole issue in this case is the lawfulness of the search and seizure.


text:
    A98A2374.
    LINDSEY et al. v. GEORGIA BUILDING AUTHORITY.
    (509 SE2d 749)
   Judge Harold R. Banke.

After Samuel L. Lindsey tripped and fell on the steps of the Georgia Railroad Freight Depot, he and his wife Carolyn Lindsey sued the Georgia Building Authority (“GBA”), which operated the Depot. The trial court granted the GBA’s motion for summary judgment and the Lindseys appeal, enumerating two errors.

The Lindseys entered the Depot around 6:30 p.m. on July 21 to attend a rehearsal dinner. It was still light as they walked up the left side of the brick steps to the front door. The weather was clear and dry.

At around 9:15, the Lindseys left though the same door. They walked down the first four steps and across a brick landing toward the next set of steps when Samuel Lindsey’s left insole purportedly caught and he fell forward. Although Lindsey was injured, he was able to attend the wedding the next day.

At the time, neither Lindsey nor his wife knew what caused him to fall. Mrs. Lindsey looked at the steps after the fall, but saw “absolutely nothing” there.

A week later, the Lindseys returned to the Depot to figure out what caused the fall, taking a camera and video. After examining the steps and reconstructing the incident, they concluded that a single raised brick on the edge of the landing precipitated the fall. Samuel Lindsey reasoned that because he was walking in the approximate area of the brick, it must have caused his fall. However, Lindsey’s testimony of how he reconstructed his path was equivocal. At one point, he testified that he had exited at the center of the double doors and walked down the front steps, “down the center ... of the terrace.” But he also testified that “my wife and I, we came down the center steps across a terrace and we were walking at an angle because we had to go back the same way we had come out and then upstairs and so forth to go to the car.” In some of the Lindseys’ photographs of the steps, the differentiation in the brick is not visible; however, some may show a height difference of somewhere between one-eighth and one-half inch. The Lindseys offered the affidavit of Deborah Hyde, Ph.D., who attested that variations in the depth of adjacent bricks exceeding three-sixteenths of an inch violated the Standard Building Code. The parties presented no evidence of the brick’s actual height compared to that of its neighbors. Nor did Hyde testify that the brick at issue violated any applicable code.

In granting summary judgment, the trial court found that the Lindseys failed to establish the GBA’s prior knowledge of the allegedly dangerous condition. It also observed that they failed to present facts establishing beyond mere speculation that the allegedly uneven brick caused the fall. Held:

1. The Lindseys argue that the GBA’s actual or constructive knowledge of the brick was a disputed fact precluding summary judgment. They base this contention on evidence that (1) the brick had been raised since it was laid, (2) the GBA had controlled the property for 11 years, (3) the GBA had no inspection procedures in place, and (4) GBA employees were regularly in the immediate area of the brick.

To recover for his injuries, Samuel Lindsey had to demonstrate fault on the GBA’s part and his own ignorance of the danger. Steele v. Rosehaven Chapel, 233 Ga. App. 853, 854 (505 SE2d 245) (1998). “Proof of a fall, without more, does not give rise to liability.” Dickman v. South City Mgmt., 229 Ga. App. 289, 290 (494 SE2d 64) (1997) (physical precedent only). To hold otherwise makes proprietors insurers of their patrons’ safety in contravention of Georgia law. Robinson v. Kroger Co., 268 Ga. 735, 740 (1) (493 SE2d 403) (1997).

Decided November 25, 1998

Reconsideration denied December 10, 1998.

Hewitt, Katz & Dumich, Robert N. Katz, Robert K. Finnell, for appellants.

Testimony from the Depot’s building superintendent indisputably established that maintenance personnel crossed the area 30 to 40 times daily, the bricks were swept each day and the GBA had a general policy of searching for and reporting hazards. The superintendent also testified that the alleged defect was visually undetectable. The record contains no evidence that anyone else had previously tripped on that brick, despite continuous use of the Depot for years. Further, as the Lindseys concede, the brick at issue was a permanent static condition and not a transient foreign substance. Steele, 233 Ga. App. at 854.

The Lindseys’ own testimony shows that the alleged defect was extremely difficult to see. During his deposition, Mr. Lindsey was unable to identify the brick in some photographs shown to him. At the time of the fall, neither Lindsey was able to ascertain the cause. Mr. Lindsey only found the brick days later, after a search of several minutes, solely by deducing that because the brick was allegedly raised and he had walked in its general proximity, it had to have caused his fall. But his inconsistent testimony about his exit from the Depot undermines this theory. One version indicates that he followed the same path he used when entering; the other asserts that he walked down the center. See Dickman, 229 Ga. App. at 291. Under either, summary judgment was proper because the alleged defect was, by the Lindseys’ own admission, so difficult to detect. Constructive knowledge can only be inferred with proof that the proprietor or its agent could have easily discovered and corrected the alleged hazard. Rodriquez v. City of Augusta, 222 Ga. App. 383, 384 (1) (474 SE2d 278) (1996). No such evidence is extant. Absent proof of the essential element of constructive or actual knowledge of the purportedly dangerous condition, we must affirm. Steele, 233 Ga. App. at 855.

2. In light of our finding in Division 1, we need not reach the second enumeration.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Brenda A. Raspberry, Assistant Attorney General, for appellee.


text:
    A98A1801.
    CLOUD v. THE STATE.
    (510 SE2d 370)
   Judge Harold R. Banke.

James Orlando Cloud was convicted of rape, aggravated sodomy, and kidnapping. He enumerates seven errors on appeal.

This case arose one evening after Cloud telephoned the victim and asked if she wanted company. In response, the victim picked Cloud up and drove him back to her apartment. Shortly after their arrival, Cloud complained that he was tired of her playing with him. He demanded that she remove her clothes and submit to sex. Then he pulled out a gun and put it to her head. She begged him. to put the gun away, acceded to his demand for sex, and removed her clothing. He forced her to place a condom on him and then raped her. When he was finished, Cloud forced her to flush the condom down the toilet, wiped himself with a towel, and demanded money. He took $5 from her purse and demanded that she obtain more for him at an automatic teller machine (“ATM”). Then he forced her to perform oral sex and raped her again.

After compelling her to flush the condom, Cloud forced the victim to leave her two-year-old daughter and drive him to an ATM at a nearby grocery. When they arrived, Cloud took her keys and followed her into the store. Cloud left after the victim succeeded in summoning help. Held:

1. Cloud maintains the trial court committed reversible error by replacing one of his jurors with an alternate. After some difficulty in reaching a unanimous verdict, the juror at issue sent the court a note stating, “Dear Judge, I, . . . , Number 33, cannot take this anymore. Please. It is making me sick.” Upon questioning outside the panel’s presence, Juror 33 explained that he could not judge Cloud, stating “I mean I cannot say if he, you know, committed all these crimes or not, you know. I mean, I can’t, you know ... I don’t want to go back in there anymore.” At that, the juror started crying. Cloud then unsuccessfully moved for a mistrial.

OCGA § 15-12-172 authorizes trial courts to replace jurors who die, become ill, are found upon other good cause shown to be unable to perform their duty, or are discharged for other legal cause. Here, the trial court asked Juror 33 why he could not serve and took the juror at his word, accepting that he was upset about his inability to judge Cloud. Compare Scott v. State, 219 Ga. App. 798, 800 (2) (466 SE2d 678) (1996). A trial court may, in exercising its discretion, replace a juror with an alternate whenever it “is convinced that the removed juror’s ability to perform his duties is impaired.” Smith v. State, 266 Ga. 827, 829 (2) (470 SE2d 674) (1996). The record provides no support for Cloud’s contention that the juror was actually expressing his view of Cloud’s innocence. In the circumstances of this case, where the court made an informed finding of incapacity, we cannot say it abused its discretion. Scott, 219 Ga. App. at 800 (2).

2. Cloud argues that substituting the alternate, a white male, for Juror 33, an African American male, abridged his right to a fair and impartial jury. The record shows that the sole reason Juror 33 was removed was his reluctance to continue serving. This is sufficient to rebut any claim of racial discrimination. See Jenkins v. State, 269 Ga. 282, 290 (11) (498 SE2d 502) (1998). The record also shows that during jury selection Cloud unsuccessfully requested that Juror 33 serve as the alternate, a fact which undermines his claim that his rights were violated when his request was ultimately granted. Inasmuch as alternate jurors are selected in the same manner and must have the same qualifications as the impaneled jurors, we fail to see how the substitution of the alternate harmed Cloud, particularly when the trial court specifically investigated Juror 33’s inability to serve and the juror stated that he had voluntarily voted for a guilty verdict. OCGA § 15-12-169; see Herring v. State, 224 Ga. App. 809, 812 (1) (481 SE2d 842) (1997).

3. The record refutes Cloud’s claim that the trial court’s limited inquiry into Juror 33’s doubts about a guilty verdict deprived him of due process. During trial, the trial court made two separate inquiries into Juror 33’s motives. Its investigation was sufficient to assure that Juror 33 was not holding out for a not guilty verdict or otherwise a victim of juror misconduct. See Cannon v. State, 223 Ga. App. 248, 249 (3) (477 SE2d 381) (1996); Peek v. Kemp, 784 F2d 1479 (1) (11th Cir. 1986), cert. denied, 479 U. S. 939 (107 SC 421, 93 LE2d 371) (1986).

4. Cloud maintains that the State’s comment during closing on his decision not to testify requires reversal. While comment on a criminal defendant’s decision not to testify is undoubtedly improper, Cloud’s failure to object waived the error. See Hill v. State, 250 Ga. 277, 283 (4) (a) (295 SE2d 518) (1982); Givens v. State, 199 Ga. App. 709-710 (405 SE2d 898) (1991).

5. The evidence, viewed in the light most favorable to the verdict, was sufficient to sustain the verdicts on the rape and aggravated sodomy counts. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The victim testified that Cloud forced her to have intercourse with him and then forced her to perform oral sex. The emergency room doctor who examined the victim after the rape found redness and inflammation in her vaginal area. DNA tests revealed Cloud’s body fluids on the towel he used after raping the victim. Police also retrieved Cloud’s jacket, which the victim tore trying to push the gun away from her head. The officer had to drive the victim back to her apartment and break into her apartment to get to her two-year-old because Cloud kept her keys when he left the grocery. This is sufficient evidence to support the verdicts. OCGA §§ 16-6-1 (a); 16-6-2 (a). Because use of a weapon was not an essential element of either rape or aggravated sodomy and the evidence of force was not dependent on the presence of a weapon, the fact that Cloud was acquitted of a firearms charge does not alter this conclusion. Compare Strong v. State, 223 Ga. App. 434 (477 SE2d 866) (1996).

6. Cloud contends his trial counsel was ineffective for failing to object to the State’s comment on his failure to testify, failing to request a curative instruction and, in fact, refusing such. To establish ineffectiveness, Cloud must prove that his trial counsel’s performance was deficient and but for the deficiency there was a reasonable probability the result of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). An error by counsel, even if professionally unreasonable, does not warrant reversal of a criminal conviction if it had no effect on the judgment. Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995).

As noted, comment on a defendant’s failure to testify is improper. Hill, 250 Ga. at 282. However, Cloud failed to show sufficient prejudice arising from this error to warrant reversal. The evidence of rape, aggravated sodomy, and kidnapping, particularly the victim’s testimony, was sufficiently overwhelming to preclude such a finding. See Jenkins v. State, 224 Ga. App. 604, 605 (3) (481 SE2d 590) (1997). Further, the trial court instructed the jury that Cloud bore no burden of proof and had the right to remain silent. Such prevents us from finding a reasonable probability that the prosecutor’s improper comment could have altered the trial’s outcome. Because Cloud failed to raise his arguments on the jury instructions in the trial court, the issue was waived. Keanum v. State, 212 Ga. App. 662, 663 (1) (442 SE2d 790) (1994).

Decided December 10, 1998.

Virginia W. Tinkler, for appellant.

J Tom Morgan, District Attorney, Noah H. Pines, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J, and Smith, J., concur.

       This comment was apparently related to the fact that the two had engaged in intercourse once several months earlier, but then he annoyed the victim and she told him to leave her alone.

       The State argued:
      “What did I tell you at the beginning of this case? It is not going to be a matter of who done it. Could we prove it beyond a reasonable doubt? And I told you, and I’m going to stand back up here in a little while, and I’m going to tell you again, I told you to make sure to listen to all the witnesses, every single one of them, and the defendant, if he so chose to put him up. And gee, did he?”

       Although Cloud challenged the sufficiency of the evidence on each count in separate enumerations, we have consolidated them into one division.

       At the motion for new trial hearing, trial counsel testified that he simply did not hear the prosecutor’s statement in its entirety.

       The latter instruction related to a statement Cloud gave police denying having sexual relations with the victim.


text:
    A98A2204.
    MILLER v. THE STATE.
    (510 SE2d 560)
   Judge Harold R. Banke.

Richard Anthony Miller, Sr. was convicted of theft by taking and forgery. Miller contends that his convictions must be reversed because the trial court erred by compelling him to make a choice between his speedy trial demand and his election to engage in reciprocal discovery.

Miller, along with two co-defendants, was the subject of a multicount indictment returned during the August 1997 term. On September 11, Miller filed a motion electing reciprocal discovery but left the indictment number blank. At some point, the clerk’s office apparently entered an incorrect indictment number in the blank space. During the October term, a re-indictment split the original case, CR97-816, into two separate cases, CR97-1244 and CR97-1248. Thereafter, Miller filed a motion on November 6, stating that “[a]ll motions filed previously in reference to this defendant should be applied to this current indictment.”

During a pretrial hearing, Miller contended that the State had failed to comply with his demand for reciprocal discovery. But the prosecutor countered that Miller had neither provided written notice to the State nor filed a motion electing reciprocal discovery in CR971248, the case about to be tried. After reviewing the evidence, the court initially determined that Miller had not filed an election under OCGA § 17-16-2 because the request was made only under CR971244, a different case against Miller and his wife involving multiple forgery counts and other criminal charges arising after the initial indictment. Then, after learning that CR97-1248, the counts for forgery and theft by taking, had appeared in the original indictment, the court found otherwise.

When offered a continuance, Miller rejected it, emphasizing that he desired a speedy trial rather than a delay. Miller’s counsel admitted in open court to having already reviewed the State’s file in its entirety. When the trial court specifically inquired whether what counsel had been shown by the State complied with the reciprocal discovery provisions, counsel stated that it did. After the court noted, “that solves the problem,” Miller posed no objection and elected to proceed to trial.

The State’s case was not complex and the evidence showed that during a visit as a client to a certain law firm, Miller pilfered a NationsBank check in the amount of $838.45 which had been left unattended on a secretary’s desk. Miller then persuaded an intellectually impaired person to present the check at a nearby check cashing business. The State’s case encompassed only six witnesses, the two attorneys who comprised the law firm, the firm’s two clerical employees, an employee from the check cashing business, and the investigating officer. Held:

Miller contends that his convictions must be reversed because the trial court abused its discretion by forcing him to choose between his speedy trial demand and his election to engage in reciprocal discovery. We disagree. OCGA § 17-16-2 (a) requires that “the defendant providEe] written notice to the prosecuting attorney that such defendant elects to have this article apply to the defendant’s case.” Absent such notice, the provisions of OCGA § 17-16-4 (a) do not apply. Wright v. State, 226 Ga. App. 848, 850 (4) (487 SE2d 405) (1997).

Even assuming for the sake of argument only that Miller’s failure to specify the indictment number on his motion satisfied the notice provisions of OCGA § 17-16-2 (a) and that Miller preserved the issue for appeal, Miller’s inability to show harm from the State’s purported failure to provide unspecified discovery material to him precludes reversal. Tucker v. State, 222 Ga. App. 517, 518 (3) (474 SE2d 696) (1996). Miller made no showing that the State improperly withheld evidence from him or acted in bad faith so as to trigger the imposition of any of the sanctions authorized by OCGA § 17-16-6. Bell v. State, 224 Ga. App. 191, 192 (480 SE2d 241) (1997). Thus, even assuming without deciding that the trial court erred, Miller failed to sustain his appellate burden of establishing how he was harmed by the trial court’s ruling. Herndon v. State, 229 Ga. App. 457-458 (3) (494 SE2d 262) (1997). Absent harm, reversal is not warranted, especially in light of the overwhelming evidence of Miller’s guilt. Id. at 458. Bennett v. State, 228 Ga. App. 254, 255 (2) (491 SE2d 481) (1997).

Decided December 10, 1998.

Kelley A. Dial, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.

       Miller failed to provide record cites to any motion purportedly filed on his behalf. See Court of Appeals Rule 27 (c) (3) (i).


author: Eldridge, Judge.

text:
    A99A0022.
    THE STATE v. HADDOCK.
    (510 SE2d 561)
   Eldridge, Judge.

The State of Georgia challenges the trial court’s grant of defendant Steve I. Haddock’s motions to suppress evidence. After finding that the trial court erred as a matter of law, we reverse.

At 10:42 p.m. on October 5, 1996, Officer Eric Bailey of the Kingsland Police Department stopped Haddock after observing him weaving over the yellow centerline of Scrubby Bluff Road in Camden County. After Officer Bailey and Officer Edward Green observed Haddock’s slurred speech and difficulty walking to the back of his vehicle, and after noticing an odor of alcohol emanating from Haddock, Officer Green conducted a consensual field sobriety test. The officer determined that Haddock was intoxicated and arrested him for DUI. Officer Bailey gave Haddock the implied consent notice, and the officers transported Haddock to Kingsland Police Department for breath testing. The Intoxilyzer 5000 test revealed that Haddock’s blood alcohol level was .256 grams.

Immediately following Haddock’s arrest, Officer Robert Tartar conducted an inventory search of Haddock’s vehicle. The Kingsland Police Department performed such search prior to towing and impounding a vehicle subsequent to an arrest. During the search, Officer Tartar found a green leafy substance, drug paraphernalia, and an open container of alcohol. Haddock was charged with DUI (less safe driver), DUI (alcohol concentration over .10 grams); possession of an open container of an alcoholic beverage while operating a vehicle; possession of less than one ounce of marijuana; and possession of a drug-related object for illegal purposes.

In February 1997, Haddock filed a motion to suppress the evidence seized in the search of his vehicle. Haddock also filed a motion to suppress or, in the alternative, a motion in limine (hereinafter the “motion in limine”) to exclude the test results of the Intoxilyzer 5000. After conducting a hearing on July 21, 1998, the trial court granted both motions. The State appeals these rulings. Held:

1. In its first enumeration, the State challenges the trial court’s grant of Haddock’s motion to suppress evidence seized during a search of his vehicle, which was conducted following Haddock’s arrest for DUI. In his motion, Haddock claimed that the search was conducted without his consent and, therefore, violated his Fourth Amendment constitutional rights. We disagree.

“While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Citations omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

During the motion hearing in this case, Officers Bailey and Green testified that Officer Tartar conducted the search of Haddock’s vehicle immediately following Haddock’s arrest for DUI, in order to inventory items in the vehicle prior to having it towed and impounded. Officer Green testified that he observed Officer Tartar completing an impound inventory sheet during the search. However, the officers were unable to produce this inventory sheet at the motion hearing.

After questioning the officers extensively regarding the availability of the inventory sheet, the trial court granted Haddock’s motion to suppress, ruling that the evidence would not be admissible unless and until the State produced the impound inventory sheet. The trial court did not rule on Haddock’s alleged constitutional violations.

We find that the trial court erred as a matter of law in granting Haddock’s motion to suppress when such grant was based upon the State’s failure to produce the impound inventory sheet. The absence of the impound inventory sheet should not have impacted the trial court’s determination as to the admissibility of the evidence found during the search or whether the search violated Haddock’s Fourth Amendment rights.

Although, under OCGA § 17-5-30 (b), the State has the burden of proving the legality of a search and seizure pursuant to a defendant’s motion to suppress, the State presented uncontradicted evidence that was sufficient to carry its burden in this case. The evidence showed that the police officers stopped Haddock for DUI at 10:42 p.m. The stop was supported by probable cause, i.e., Haddock’s weaving over the yellow centerline. Haddock parked his vehicle on the side of the road. Following a field sobriety test, the officers arrested Haddock and transported him to the Kingsland Police Department for breath testing.

Accordingly, the inventory search was authorized pursuant to a lawful impoundment. Impoundment of a vehicle is valid when, following an arrest which is supported by probable cause, “there is some necessity for the police to take charge of the property. See South Dakota v. Opperman, 428 U. S. 364 (96 SC 3092, 49 LE2d 1000) (1976).” Whisnant v. State, 185 Ga. App. 51, 53 (2) (363 SE2d 341) (1987). In this case, Haddock had been driving his vehicle alone, so that there was no passenger to drive the vehicle back to Haddock’s home (or, at least, away from the site of the traffic stop). Cf. State v. Crank, 212 Ga. App. 246, 250 (441 SE2d 531) (1994); Whisnant v. State, supra at 53 (2). Further, Haddock was in such an intoxicated condition that it was not reasonable to consult with him regarding the disposition of his vehicle; to leave the vehicle on the side of the road created a potential safety hazard and exposed the vehicle and contents to theft or to vandalism. Cf. State v. Crank, supra at 250; State v. Darabaris, 159 Ga. App. 121, 122-123 (282 SE2d 744) (1981). Therefore, this Court finds that the officers in this case acted reasonably when they arranged for the vehicle to be towed and impounded.

An inventory search prior to impoundment is justified in order to protect three distinct needs, as follows: “(1) protection of the owner’s property while it remains in police custody; (2) the protection of the police from potential danger; and (3) the protection of the police against false claims of stolen or lost property. South Dakota v. Opperman, [supra].” (Punctuation omitted.) State v. Darabaris, supra at 122. The officers in this case testified that the search was performed immediately following Haddock’s arrest, while the vehicle still was parked on the side of the road. Accordingly, the contemporaneous, pre-impoundment inventory search was authorized under the facts and circumstances of this case.

However, Haddock asserted in his motion that the search was conducted in response to an alleged statement he made prior to his arrest. Haddock did not testify and presented no evidence during the hearing. In response to this unsupported assertion, both officers denied that any such statement was made or that the search was conducted pursuant thereto.

After reviewing the entire record, this Court finds that the State presented sufficient evidence to establish that the search was lawful. Such evidence was not disputed by Haddock’s mere assertions of illegality, which were not supported by any evidence at the hearing. See Boatright v. State, 192 Ga. App. 112, 118 (8) (385 SE2d 298) (1989). Therefore, the trial court erred in granting Haddock’s motion to suppress the evidence seized during the impound inventory search of Haddock’s vehicle.

2. In its second enumeration, the State asserts that the trial court erred as a matter of law in granting Haddock’s motion to exclude the Intoxilyzer 5000 test results. We agree.

(a) During the hearing, the State submitted a certificate of inspection for the Intoxilyzer 5000, which read as follows: “This breath-testing instrument, Kingsland P. D. 68-000709, was thoroughly inspected, tested, and standardized by the undersigned on 8-22-96 and all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order.” The certificate was signed by the inspector and notarized the same day, August 22, 1996. This certificate was identified during the hearing by Officer Green. Therefore, it clearly meets the requirements for admissibility that have been promulgated by the Georgia General Assembly and construed by both the Supreme Court of Georgia and this Court.

“OCGA § 40-6-392 (f), by legislative fiat, specifically provides a foundation for the admission of a certificate of inspection. The general assembly determined that, ‘notwithstanding any other provision of law,’. . . a certificate of inspection is self authenticating w hen it is ‘prepared and executed, as prescribed in this subsection.’ Id. Under the statute, the ‘foundation’ for the admission of such certificate is: (1) the certificate is signed under oath by the inspector; and (2) the certificate contains the requisite language of OCGA § 40-6-392 (f). Once completed as specified under the statute, the certificate ‘is admissible in any court of law,’ without further proof. Therefore, OCGA § 40-6-392 (f), itself, contains the ‘proper foundation’ for admission of a certificate of inspection. After this proper foundation has been satisfied, the document may be admitted. A further foundation under the ‘business records exception,’ OCGA § 24-3-14 (b), is rendered unnecessary by legislative enactment.” (Emphasis in original; footnote omitted.) Jackson v. State, 233 Ga. App. 568, 572-573 (504 SE2d 505) (1998), relying upon Brown v. State, 268 Ga. 76, 77 (485 SE2d 486) (1997).

Therefore, since the certificate in this case met all of the procedural requirements for admission, the trial court’s grant of Haddock’s motion in limine constituted error and must be reversed.

(b) However, even if the State had been required to establish separately that the certificate was admissible under the business records exception to the hearsay exclusion, the evidence presented in this case was sufficient to carry the State’s burden on a motion in limine. See OCGA § 24-3-14 (b). Under OCGA § 24-3-14 (b), a written record of an act is admissible as proof of the act (1) if such record was made in the regular course of business and (2) if it was the regular course of business to make the record “at the time of the act... or within a reasonable time thereafter.”

Contrary to the trial court’s assertions during the hearing, there is no requirement that, in order to lay a proper foundation for the admission of an inspection certificate under the business record exception, the person who conducted the inspection of the machine, or someone who actually witnessed the inspection, appear in court to testify about the inspection or the completion of the certificate. See Hertz Corp. v. McCray, 198 Ga. App. 484, 485-486 (2) (402 SE2d 298) (1991) (“any person who is familiar with the method of keeping the records and can identify them may lay the necessary foundation” for admission under the business records exception).

In this case, Officer Green testified that the Kingsland Police Department’s Intoxilyzer 5000 machine is inspected quarterly for accuracy. Officer Green personally witnessed the Intoxilyzer 5000 inspector during previous inspections of the machine, and specifically testified that the inspector routinely signed the certificate immediately following the inspection. Officer Green also testified that the inspection certificates are kept in the normal course of business and are stored in the records area at the police department. He also testified that he knew the notary for the City of Kingsland and recognized her signature on the inspection certificate. Further, the inspection certificate itself clearly shows that the inspector’s signature was notarized on August 22, 1996, the same day as the inspection.

Accordingly, this case is distinguishable from recent cases wherein this Court found that the evidence presented by the State was insufficient to establish that the certificate had a sufficient indicia of reliability to withstand a hearsay objection. See also Jackson v. State, supra at 571, n. 3. The evidence in this case was more than sufficient to establish a foundation under the business records exception to the hearsay exclusion under OCGA § 24-3-14 (b).

(c) Finally, in his motion in limine, Haddock claimed that the results of his breath tests should be excluded from evidence because his consent for the tests was “coerced” by the police officers. It is undisputed that police officers arrested Haddock for DUI and gave him the statutory implied consent warning, codified in OCGA § 40-5-67.1 (b) (2). This warning includes the following phrase: “If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year.”

In the brief supporting his motion, Haddock asserted that the State of Georgia had ceased all efforts to prohibit non-resident drivers from driving on Georgia’s roads. Therefore, Haddock, a nonresident with a Florida driver’s license, contended that the implied consent warning was false and coercive to the extent that it stated that his driving privileges “will be suspended” for at least one year. However, Haddock cited no authority or source in his brief regarding this alleged cessation of enforcement of the statute by the State in his brief, nor was there any such reference in the record or motion hearing transcript. Therefore, there was no evidence to support a finding that the implied consent notice given to Haddock misrepresented in any manner the “legitimate consequences” of his refusal to submit to the tests. See Whittington v. State, 184 Ga. App. 282, 284 (2) (361 SE2d 211) (1987); see also Morrissette v. State, 229 Ga. App. 420, 423-424 (2) (a) (494 SE2d 8) (1997); Gutierrez v. State, 228 Ga. App. 458, 460 (2) (491 SE2d 898) (1997); Singleterry v. State, 227 Ga. App. 155, 156 (3) (489 SE2d 42) (1997). This Court finds that, to the extent that the trial court based its grant of Haddock’s motion on a finding that the State misrepresented the penalties for Haddock’s refusal to be tested, thereby resulting in Haddock’s “involuntary” expressed consent, such finding is clearly erroneous and must be reversed.

Decided December 10, 1998.

Stephen D. Kelley, District Attorney, James J. Presswood, Jr., Assistant District Attorney, for appellant.

John J. Ossick, Jr., for appellee.

Judgment reversed and remanded.

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

       While such inventory sheet is not necessary to establish the foundation for admissibility of the seized items, it may affect the weight and credibility of the State’s evidence against Haddock. See generally Mincey v. State, 257 Ga. 500, 504-505 (6) (360 SE2d 578) (1987). Therefore, good practice would suggest that the inventory sheet be tendered along with the evidence.

       Under these facts, the search also was valid as an incident to a lawful custodial arrest of a person who had recently occupied the vehicle that was searched. Sims v. State, 197 Ga. App. 214, 215 (2) (398 SE2d 244) (1990), relying upon New York v. Belton, 453 U. S. 454, 460 (101 SC 2860, 69 LE2d 768) (1981); Allison v. State, 217 Ga. App. 580, 581 (1) (459 SE2d 557) (1995); State v. Watkins, 182 Ga. App. 431, 432-433 (356 SE2d 82) (1987). Thus, the evidence seized incident to a lawful arrest with probable cause for the arrest was admissible and would not violate any constitutional rights of the accused. Had the State justified the search as performed incident to an arrest with probable cause, such evidence should have been admitted by the trial court.

       See, e.g., Mullinax v. State, 231 Ga. App. 534, 535 (2) (499 SE2d 903) (1998); Hamilton v. State, 228 Ga. App. 285, 287 (4) (491 SE2d 485) (1997); and Daniel v. State, 227 Ga. App. 92, 93 (488 SE2d 129) (1997).

       This Court previously has noted that Georgia’s implied consent statute accurately portrays the consequences of refusing an alcohol test, thereby allowing the driver to make a truly informed decision regarding whether to consent. Roberson v. State, 228 Ga. App. 416, 419 (491 SE2d 864) (1997). “The more objectionable alternative is to minimize the consequences of the driver’s refusal, only to surprise the driver later with an unanticipated mandatory [suspension], [Cit.]” Id.


text:
    A99A0087.
    MacINNIS v. THE STATE.
    (510 SE2d 557)
   Eldridge, Judge.

George Brian Maclnnis appeals the trial court’s denial of his motion for discharge and acquittal pursuant to OCGA § 17-7-170. In his sole enumeration of error, Maclnnis asserts that jurors were impaneled on July 3, 1997, when his demand for speedy trial was filed, and therefore, the trial court erred in denying his motion because he was not tried within the time required by OCGA § 17-7-170. We disagree and affirm the trial court’s judgment.

The record shows that Maclnnis was charged by accusation filed on Monday, June 30, 1997, with the offenses of driving under the influence (two counts), no license plate, and failure to maintain lane. On Thursday, July 3, 1997, the last business day of the May term, Maclnnis filed several motions, including a demand for speedy trial pursuant to OCGA § 17-7-170. Maclnnis, through his counsel, waived arraignment on July 21, 1997, and was given notice that the case was scheduled for the September 3,1997, trial calendar. On September 2,1997, the second day of the September term, Maclnnis filed his motion for discharge and acquittal.

Oral argument was heard on Maclnnis’ motion for discharge and acquittal on September 10, 1997. The parties stipulated that there are six terms of court for the State Court of Fulton County each year and that the beginning day for each of these terms is the first Mondays in January, March, May, July, September, and November. See Ga. L. 1983, pp. 4501-4502. At such hearing, testimony was taken from Fulton County State Court Deputy Administrative Jury Clerk Susan Boehms and Fulton County Superior Court Jury Clerk Jennifer Lawson. Both jury clerks testified that no jurors were impaneled on July 3, 1997, in either state court or superior court.

Ms. Boehms testified that all jurors summoned for July 3, 1997, for state court were summoned as “on call” jurors. “On call” jurors were required to call a number provided on their summons after 5:00 p.m. on July 2, 1997, to hear a pre-recorded message. On July 2, 1997, the pre-recorded message informed jurors they were excused from service and did not need to report on July 3, 1997. Ms. Boehms testified that she left this méssage because no judge in the state court had requested jurors for July 3, 1997. In response to the solicitor’s question of whether it would have been possible to recall jurors on July 3,1997, after the recording had told jurors not to report, Ms. Boehms at first responded “Probably. But I — it would have been very difficult.” Ms. Boehms then proceeded to explain that the situation had never come up before and that “it would be almost next to impossible” to re-call the jurors.

Ms. Boehms testified that she was not sure if, on July 3, 1997, there were jurors still hearing other trials that had started earlier in the week. Ms. Boehms further testified that any jurors who might have been serving on other trials would not be available once they finished to make up a jury panel because jurors were summoned to serve for one day or for one trial, so if they served on one trial, they would be excused by the trial judge from any further service.

On cross-examination, Ms. Boehms testified that she did recall signing a certificate prepared by the defense counsel, but did not recall commenting at such time that juror panels A and C had been called in on July 3, 1997. The certificate was not introduced into evidence. Ms. Boehms testified that her notes indicated that she “didn’t call [jurors] in” on July 3, 1997.

Ms. Lawson testified that the status of jurors in superior court was the same as that of the state court. Ms. Lawson testified that the jurors summoned by the superior court for July 3, 1997, were summoned on “standby” and were to call in after 5:00 p.m. on July 2, 1997, to find out if they had to report for service. The message left on the telephone recording on July 2, 1997, for jurors on standby for July 3,1997, was that they “were excused and should not report.” Ms. Lawson went on to testify that, once she excused the jurors and instructed them not to report, there was no way to recall the jurors for service.

Ms. Lawson further testified that she did not know if there were 12 jurors, who had been summoned previously in the week, who were serving on a jury in another case in superior court on July 3, 1997. However, all jurors for Fulton County Superior Court were summoned for one day or one trial, would have been excused by the trial judge at the end of the trial they were serving on, and would not have been available for a jury panel on July 3, 1997. Held:

Pursuant to OCGA § 17-7-170, when a person who is charged with an offense not affecting his life and such person files a proper demand for speedy trial, “[i]f the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.” (Emphasis supplied.) OCGA § 17-7-170 (b).

Where a “demand is filed during a term in which there is no jury impaneled to try the case, the time allowed by the two-term requirement does not begin to run until the term following that during which the demand was filed.” (Citation and punctuation omitted.) Kaysen v. State, 191 Ga. App. 734, 735 (382 SE2d 737) (1989); Waller v. State, 251 Ga. 124, 126 (3) (303 SE2d 437) (1983), rev’d on other grounds, 467 U. S. 39 (104 SC 2210, 81 LE2d 31) (1984). “[I]n computing the time allowed by the two-term requirement, terms or remainders of terms during which no jury is impaneled are not counted” Kaysen v. State, supra at 735; George v. State, 269 Ga. 863 (505 SE2d 743) (1998). In fact, this court has specifically rejected “the argument that a court term should count so long as jurors were impaneled previously during that term. Because a discharged jury is not impaneled or qualified to try a defendant, it fails to meet the statutory requirements for a speedy trial.” Pope v. State, 265 Ga. 473, 474 (458 SE2d 115) (1995). “The provisions of [OCGA] § 17-7-170 (b) [are] not ‘triggered’ . . . where the appellant made his demand when there were no juries impaneled or scheduled to be impaneled in the remainder of the term. [Cit.]” West v. State, 193 Ga. App. 117 (387 SE2d 44) (1989).

Further, since in Fulton County jurors are summoned for one day or one trial, even if jurors were in the building on July 3, 1997, sitting as jurors on other trials, they would not be a “jury panel” that would trigger the two term provisions of OCGA § 17-7-170. A “jury panel” is defined as “the group of prospective jurors who are summoned to appear on a stated day and from which a grand jury or petit jury is chosen.” (Citation and punctuation omitted.) Kirk v. State, 194 Ga. App. 801, 802 (392 SE2d 249) (1990); Black’s Law Dictionary (6th ed. 1991), p. 596. “The clerk impanels the jury but does not select or choose it; that act of winnowing is up to the parties.” Kirk v. State, supra at 802.

Any jurors in the courthouse on July 3, 1997, would have been actively sitting as jurors on the trial of another case and would not be available to the jury clerk for placement on a jury panel. At the conclusion of the ongoing trial, they would not have become available to the jury clerk for placement on another jury panel, because their term of service would have been concluded, and they would be excused by the trial judge presiding over the trial for which they served on.

Therefore, on July 3, 1997, when Maclnnis filed his demand for speedy trial, a jury panel was not available for the remainder of the May term. It follows that Maclnnis’ demand for speedy trial did not become effective to trigger the running of time specified in OCGA § 17-7-170 (b) until juries were impaneled and qualified during the July term. Therefore, there was no error in the trial court denying Maclnnis’ motion for discharge and acquittal.

Decided December 10, 1998.

Chestney Law Firm, Robert W. Chestney, for appellant.

Carmen Smith, Solicitor, Robin L. Benham, Jody L. Peskin, Assistant Solicitors, for appellee.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A98A0972.
    OCHS v. HOERNER.
    (510 SE2d 107)
   McMurray, Presiding Judge.

Plaintiff Ochs filed this action seeking to recover certain funds paid to defendant Hoerner in connection with a multifaceted real estate transaction. Summary judgment was granted to Hoerner on Ochs’ claims and that judgment was affirmed by this Court in an unpublished opinion.

A jury trial was then conducted on Hoerner’s counterclaim seeking enforcement of a promissory note signed by Ochs. The jury returned a verdict in favor of Hoerner for $100,000, the principal amount of the note, and judgment was entered for this amount plus attorney fees, post-judgment interest, and cost. Ochs appeals and enumerates a number of alleged errors including the failure of the trial court to grant his motion for directed verdict based on the absence of any consideration for the note. Held:

We agree that there was no consideration for the note and reverse. Hoerner was the only witness at trial and testified as to putting up a $100,000 certificate of deposit iri lieu of a performance bond with the construction lender of a project on which Ochs contracted to construct a building. While the closing on the purchase of the real property on which the building was to be constructed was pending, Hoerner and Ochs, along with others, left to conduct a conference in a parking lot which resulted in a contract for Ochs to purchase real property on Powder Springs Road from Tischer & Associates, Inc., a closely held corporation controlled by Hoerner. Ochs also signed the no-interest demand note in the principal amount of $100,000 and payable on demand to Hoerner upon which the appealed judgment is predicated. Both the sales contract and the note were drafted by Hoerner without the aid of an attorney.

Ochs never closed on the purchase of the property on Powder Springs Road. Hoerner’s demands on Ochs for payment of the $100,000 demand note were ignored and then Ochs filed his unsuccessful claims against Hoerner.

Hoerner never paid any funds to Ochs in connection with Ochs’ execution of the $100,000 demand note. Hoerner testified that he required the note from Ochs as compensation for deferring the closing on the Powder Springs Road property. Howpver, there is nothing in writing which connects the sales contract for the Powder Springs Road property with the note. The note was not attached to the sales contract and neither document refers to the other.

However, the sales contract does contain a merger clause stating that it “constitutes the sole and entire agreement between parties and no modification hereof shall be binding unless attached hereto and signed by each; and no representations, promises or inducements shall be binding upon either party except as herein stated.” Generally, parol evidence is inadmissible to add to, take from, or vary a written contract. Even if otherwise subject to some exception to the general rule, in view of this merger clause, Hoerner’s parol evidence is inadmissible to alter the terms of the unambiguous sales contract so that the demand note must be viewed separately. Choice Hotels Intl. v. Ocmulgee Fields, 222 Ga. App. 185, 186 (1) (474 SE2d 56); Great American Builders v. Howard, 207 Ga. App. 236, 240 (2) (427 SE2d 588).

Any presumption that a promissory note in the hands of the original payee is supported by consideration is subject to rebuttal. And this is the rule even where the note is under seal or recites that it is given “for value received.” Citizens Bank of Blakely v. Hall, 179 Ga. 662 (177 SE 496). When the note is viewed separately, we find that the recital that it was given “for value received,” is an ambiguity which permits the admission of parol evidence regarding the existence of consideration. Kenerly v. Bryant, 227 Ga. App. 746, 749 (4) (490 SE2d 454); Gentile v. Bower, 222 Ga. App. 736, 739 (1) (477 SE2d 130); Harnden v. Alpha-Atlanta Constr., 164 Ga. App. 685, 688 (297 SE2d 368). The uncontroverted parol evidence shows that Ochs derived no benefit from the note since he received no funds and that any deferral of the marketing of the Powder Springs Road property was no more than he was entitled to under the contemporaneous sales contract. Such a total failure of consideration bars Hoerner’s claim predicated on the note. Santiago v. Klosik, 199 Ga. App. 276, 277 (2) (404 SE2d 605).

We further note that Hoerner’s reliance upon the relatively recent case of Tyson v. McPhail Properties, 223 Ga. App. 683, 686 (3) (478 SE2d 467), is misplaced since, unlike in that case, the note in the case sub judice does not contain any specific recital of nominal consideration which may be deemed sufficient to support a contractual obligation. Ochs’ remaining enumerations of error are rendered moot by our resolution of the consideration issue.

Decided December 2, 1998

Reconsideration denied December 11, 1998

Barnes, Browning, Tanksley & Casurella, Michael K. Jablonski, John R. Bevis, for appellant.

Richelo, Morrissey & Gould, Brian J. Morrissey, for appellee.

Judgment reversed.

Eldridge, J., concurs. Blackburn, J., concurs in the judgment only.


text:
    A98A2277.
    HADLEY v. THE STATE.
    (510 SE2d 569)
   Judge Harold R. Banke.

James Derek Hadley was convicted of arson after setting fire to a dwelling. On appeal, Hadley’s sole challenge is to the admission of a statement in which he implicated himself.

The evidence, when viewed in a light most favorable to the verdict, showed that the victim, Sandra, and Hadley had an argument. After telling Hadley not to come to her house anymore, the victim removed Hadley’s clothes from her home and drove away to take them elsewhere. When the victim’s daughter spotted Hadley using lighter fluid to set her mother’s clothes on fire, she ran to a neighbor’s house and yelled, “Derek . . . that fool, set mama [sic] clothes on fire.” The neighbor rushed over and after unsuccessfully attempting to extinguish the blaze, contacted the fire department. As another neighbor responded to the victim’s daughter’s request for help, she spotted Hadley as he was walking away. Hadley told her, “I set the motherf-— apartment, clothes on fire,” or words to that effect. When asked why, Hadley replied, “Cause the bitch deserved it. She took my clothes.”

Sergeant Guy Winkleman attempted to locate Hadley at the home of a relative and discovered that “James Hadley” was known as “Derek.” About that time, police intercepted a man who seemed to match a description of Hadley. An officer contacted Winkleman to inform him that a suspect had been stopped but that the man denied being James Hadley. Winkleman then went to the scene to verify the man’s identity. Although he had no prior acquaintance with Hadley, Winkleman pretended otherwise and bluffed, “This is not James Hadley, this is Derek.” After initially denying that fact, Hadley admitted he was Derek and said, ‘Yeah, you’ve got me.” Winkleman then asked Hadley what he was doing there and why he had lied to the officers. Hadley responded that he had “damaged some stuff” up the road. Then Winkleman inquired, ‘You mean at Sandra’s house?” which Hadley confirmed by saying, ‘Yeah, I damaged some stuff up at Sandra’s house.”

At the suppression hearing conducted pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), Hadley sought to suppress only his response to the question, ‘You mean at Sandra’s?” claiming that it was a statement violative of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). The trial court found that the encounter was not custodial and denied the motion. Held:

In his sole enumeration of error, Hadley contends that the trial court committed reversible error in admitting his response to the last question. Hadley claims that four officers were present and that he was clearly in custody and being interrogated.

Under Miranda, persons must be advised of their rights against self-incrimination after being taken into custody or otherwise deprived of their freedom of action in any significant way. Reinhardt v. State, 263 Ga. 113, 114 (3) (a) (428 SE2d 333) (1993). In distinguishing between custodial and non-custodial interrogation, several factors may be utilized. State v. Hendrix, 221 Ga. App. 331, 333 (1) (471 SE2d 277) (1996). These include: probable cause to arrest, subjective intent of the police, subjective belief of the defendant, and the focus of the investigation. Id.

Here, law enforcement officers were detaining a man as a possible arson suspect. After the officer ascertained that this person was, in fact, Hadley, police had probable cause to arrest Hadley, their prime suspect and the focus of their investigation. Further questioning was nothing more than a thinly veiled effort to solicit inculpatory information useful toward establishing Hadley’s guilt. Lolley v. State, 259 Ga. 605, 606 (2) (b) (385 SE2d 285) (1989) (critical test is whether the questioning is aimed at determining the nature of the situation or is aimed at obtaining information to establish guilt). Compare Shy v. State, 234 Ga. 816, 821-822 (I) (218 SE2d 599) (1975). This evidence should have been excluded. See Lolley, 259 Ga. at 606 (2).

Nevertheless, we find the error was harmless because the evidence of Hadley’s guilt was overwhelming. The victim’s daughter observed Hadley pile up the clothes then set them on fire. Hadley admitted to a neighbor that in retaliation, he had set the fire. In these circumstances, we find beyond a reasonable doubt that the error did not contribute to the verdict. Metheny v. State, 197 Ga. App. 882, 886 (1) (d) (400 SE2d 25) (1990). See Eiland v. State, 246 Ga. 112, 116 (2) (268 SE2d 922) (1980).

Decided December 11, 1998.

Harold B. Baker, Ronald R. Parker, for appellant.

J. David Miller, District Attorney, Mark E. Mitchell, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J, and Smith, J., concur.


text:
    A98A2301.
    THE STATE v. SNEDDON.
    (510 SE2d 566)
   Judge Harold R. Banke.

The State appeals the trial court’s order granting Thomas Sneddon’s motion seeking the suppression of a chemical sobriety test. See OCGA § 5-7-1 (a) (4).

This case arose after the arresting officer observed Sneddon driving down a local interstate with a nonfunctional headlight and tag light. When the car began weaving across the fog line and center line, the officer initiated a stop. Upon approaching the car, he noticed a strong odor of alcoholic beverages emanating from its sole occupant, Sneddon, who admitted to imbibing several drinks at his girl friend’s house. As he exited the car, Sneddon stumbled and subsequently failed a field sobriety test the officer administered. When Sneddon refused further field testing, the officer arrested him for driving under the influence (“DUI”), placed him in the rear of the patrol car, and read him the implied consent notice. Sneddon was then transported to the jail where he submitted to an Intoxilyzer 5000 breath test which registered over the legal limit.

Sneddon subsequently sought suppression of, inter alia, the Intoxilyzer 5000 results, arguing that the implied consent warnings were inadequate. At a hearing, the officer read back the warning he had administered to Sneddon. Sneddon then reserved his objections to the test results. Shortly thereafter, the trial court issued a written order denying the motion, finding that the officer properly read the implied consent card by reciting the exact words.

After receiving a written transcript of the hearing, Sneddon sought reconsideration of this decision. As a result, the trial court issued a second order finding clear error in its earlier conclusion that the arresting officer had correctly read the implied consent notice. The court based this ruling on a finding that, instead of correctly informing Sneddon that “[a]fter first submitting to the required State’s test” he was entitled to “additional chemical tests of your blood, breath, urine, or other bodily substances” as mandated by OCGA § 40-5-67.1 (b) (1), the officer stated, “you are entitled to an additional chemical test of your blood, breath, urine, or other bodily substances.” The State filed a timely notice of appeal from this order.

Some months later, the trial court issued an order granting the court reporter permission to amend the hearing transcript to correct errors therein. The amended transcript states that the officer did not include the erroneous “an” in the above-stated sentence, reading instead, “you are entitled to additional chemical tests of your blood. . . ."Held:

The State contends that the trial court erred in requiring the officer to quote OCGA § 40-5-67.1 (b) (1) verbatim when administering the implied consent notice. We agree.

In its ruling, the trial court relied on opinions of this Court which required an exact reading of the notice. See, e.g., State v. Halstead, 230 Ga. App. 208, 209 (496 SE2d 279) (1998). Those opinions were issued before the effective date of the General Assembly’s amendment to OCGA § 40-5-67.1 (b) (3), which eliminated the exact reading requirement. We subsequently determined that the amendment had retroactive effect. State v. Levins, 234 Ga. App. 739 (505 SE2d 246) (1998); State v. Moncrief, 234 Ga. App. 871 (508 SE2d 216) (1998). Although that holding is not dispositive of this case, we must determine whether the officer’s reading changed the substance of the notice. Id.; see Harrison v. State, 235 Ga. App. 78 (508 SE2d 459) (1998).

OCGA § 5-6-41 (f) authorizes trial courts to accept amendments to transcripts to make them conform to the truth. Bates v. State, 228 Ga. App. 140 (2) (491 SE2d 200) (1997). Subsection (f) permits such corrections “either before or after the record is transmitted to the appellate court” upon suggestion by the parties or on the trial court’s own initiative. OCGA § 5-6-41 (f). Here, in a supplemental transcript submitted to this Court, the court reporter certified that corrections were required as a result of a proofing error in transcription.

Because the corrections to the transcript were permissible, we confine our analysis to the amended transcript which read as follows: “Georgia law requires you to submit to the state-administered chemical test[s] of your breath” — “of your blood, breath or urine, or other bodily substance[s] for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing], your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to the test[ing], and the results indicate an alcohol concentration of .10 grams or more, your Georgia driver’s license or privileges to drive on this highway of the state may be suspended for a minimum period of one year. After first submitting to the required staters test[s], you are entitled to additional chemical tests of your blood, breath, urine or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state-administered chemical test[s], and at that time I designated breath [under the implied consent law].” Leavitt v. State, 264 Ga. 178, 179 (2) (442 SE2d 457) (1994). The officer’s omissions are in brackets and his additions are underlined.

Decided December 11, 1998.

Leslie C. Abernathy, Solicitor, William A. Finch, Laura A. Janssen, Assistant Solicitor, for appellant.

Spruell, Taylor & Associates, Billy L. Spruell, Melinda D. Taylor, for appellee.

Sneddon maintains that the officer’s additions and deletions failed to inform him that he had the right to have multiple additional tests of his blood, breath or urine and that the State could ask for multiple tests. The corrected version of the hearing negates the first assertion. As to the second, in State v. Hopkins, 232 Ga. App. 705 (503 SE2d 590) (1998), this Court held that “[i]f the officer is requesting consent for only one test, as in this case, correcting the grammar of the sentence by changing test to tests is not a substantive change which alters the meaning of the question. Instead, it makes the critical sentence in the warning, which defines the test for which consent is sought, more understandable.” This reasoning applies equally in the instant case, where the officer requested only one test.

Because Sneddon’s argument that retroactive application of OCGA § 40-5-67.1 (b) constitutes an ex post facto violation was not raised in the trial court and this case does not turn on that issue, we need not reach it here. Nolen v. State, 234 Ga. App. 291, 292 (508 SE2d 733) (1998) (physical precedent only).

Judgment reversed.

Johnson, P. J., and Smith, J., concur.

       The suppression order was issued in June 1998. Sneddon was arrested in June 1997.

       The amendment states: “Such notice shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.”

       Notwithstanding Sneddon’s assertion to the contrary, nothing in the record reveals any improper ex parte communication between the State and the trial court. The errors here could have been raised by the court reporter or sua sponte by the trial court.