author: McMURRAY, Presiding Judge.

text:
    A99A0444.
    TEAT v. THE STATE.
    (516 SE2d 794)
   McMURRAY, Presiding Judge.

Defendant John Michael Teat was charged in an indictment with two counts of aggravated assault for shooting Darenda Johnson and Carl Burrill with a handgun and further charged with armed robbery for taking an automobile from the immediate presence of Carl Burrill by use of a handgun. The jury found him guilty of both counts of aggravated assault and also found him guilty of theft by taking as a lesser included offense to armed robbery. Defendant was sentenced as a recidivist. His motion for new trial as amended was denied, and this appeal followed. Held:

1. Defendant’s first enumeration contends the trial court “erred in calling a witness who did not qualify” under OCGA § 17-7-130.1.

Pursuant to Uniform Superior Court Rule (“USCR”) 31.4, defendant gave written pretrial notice of his intent to raise issues of insanity and mental illness in his defense. Under OCGA § 17-7-130.1 and USCR 31.5, the trial court appointed Michael Singletary and William Battles, M.D. “to examine defendant and to testify at his trial concerning his mental condition.” At trial, both Michael Singletary and Dr. Battles were called as court witnesses, and each witness was cross-examined by defendant without any contemporaneous objection to qualifications. Michael Singletary works at Georgia Regional Hospital in Augusta in Forensic Services. He has a bachelor’s degree in psychology, a master’s degree in special education, and another master’s degree in psychology. He is licensed as a mental health counselor by the State of Georgia, has worked in mental health for 28 years, and has performed “over 2,500 court-ordered evaluations.” On appeal, defendant argues the trial court erred in qualifying Michael Singletary as an expert witness on the ground that Singletary is not licensed as a psychologist by the State of Georgia and further erred in denying defendant’s motion for new trial on this ground.

(a) “Where an objection to evidence is raised for the first time in a motion for new trial . . ., nothing is presented for review. Fitzgerald v. State, 193 Ga. App. 76, 77 (5) (386 SE2d 914).” Clark v. State, 236 Ga. App. 153,154-155 (2) (510 SE2d 907). In the case sub judice, “[t]hese objections were not raised by defendant at trial. Absent timely objection, we find no reversible error.” Taylor v. State, 261 Ga. 287, 290 (1) (b) (404 SE2d 255).

(b) Defendant also objects to the order of presentation, contending the trial court erred in permitting the State to present a psychiatrist, Suzanne Canning, M.D., as a rebuttal witness. But this objection is beyond the scope of the error as enumerated and will not be considered. An enumeration of error cannot be enlarged by appellant’s brief to raise an issue not reasonably contained in the error as originally enumerated. Chesser v. State, 228 Ga. App. 164, 167 (2) (491 SE2d 213).

2. Next, defendant contends the trial court erred in overruling his motion for new trial on the special ground of ineffective assistance of trial counsel. Specifically, he argues trial counsel was ineffective in failing to disqualify the witness Julius Moses; in failing to move for a mistrial when the State allegedly placed defendant’s character in evidence; and in failing to object to the testimony of Michael Singletary.

“In order to prevail on a claim of ineffective assistance of counsel, a defendant must first show (1) that defense counsel's performance was deficient, and (2) that the defense was prejudiced by the deficient performance, i.e., show a reasonable probability that but for the trial counsel’s (un)professional errors, the result of the proceeding would have been different. (Cit.)” [Cit.]

Esquivel v. State, 236 Ga. App. 325 (512 SE2d 61).

The decisions on which witnesses to call, whether and how to conduct cross-examination, which jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client. Johnson v. State, 214 Ga. App. 77, 79 (1) (447 SE2d 74). Trial counsel’s strategic decisions made after thorough investigation are virtually unchallengeable. Stephens v. State, 265 Ga. 120, 122 (2) (453 SE2d 443). The trial court’s determination that a defendant has not been denied effective assistance of counsel will be affirmed unless that conclusion is clearly erroneous. Smith v. State, 256 Ga. 483 (351 SE2d 641).

(a) In the case sub judice, trial counsel successfully impeached Julius Moses as a prior felon and did in fact raise concerns about the competency of this witness, due to a “strong odor of alcohol about his body and breath. . . .” The trial court concluded the witness was not incompetent to testify under OCGA § 24-9-6, but that any possible state of intoxication goes to the credibility of the witness. This ruling was entirely correct. Whitus v. State, 222 Ga. 103, 110 (2) (149 SE2d 130), rev’d on other grounds, sub nom. Whitus v. Georgia, 385 U. S. 545 (87 SC 643,17 LE2d 599). The tactical decision not to pursue this potential challenge further, after the trial court’s correct ruling, is not any evidence that counsel’s performance fell outside the broad range of acceptable performance that members of the bar in good standing are presumed to render. See Shaw v. State, 211 Ga. App. 647, 649 (2) (440 SE2d 245).

(b) Dining cross-examination of defendant, the State attempted to elicit just why defendant returned to the Biscayne Room despite victim Carl Burrill’s previous threats. Defendant responded: “I think it was like — Carl does not own the Biscayne Room. It’s open to the public. I was court ordered to go there. I didn’t have a choice.” On appeal, defendant argues trial counsel was ineffective for failing to move for a mistrial on the ground the State improperly placed defendant’s character in issue. We need not decide whether such failure amounted to deficient performance. “ An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.’ [Cit.]” Hammond v. State, 264 Ga. 879, 880 (1) (452 SE2d 745). In our view, evidence that defendant was under court order to attend AA meetings, as a condition of probation, could not reasonably have contributed to the jury’s verdicts, and so counsel’s failure to move for a mistrial did not undermine the reliability of the result in this case. Id.

Decided April 23,1999

Reconsideration denied May 4,1999

Timmons, Haggard & Carney, John W. Timmons, Jr., for appellant.

Harry N. Gordon, District Attorney, Henry R. Thompson, Assistant District Attorney, for appellee.

(c) Next, defendant contends trial counsel was deficient in failing to object to the testimony of Michael Singletary, arguing the entire testimony of this witness could have been excluded at trial because Singletary is not a licensed psychologist. This contention is without merit. A witness need not be licensed to practice psychology in Georgia in order to qualify as an expert in matters of psychology or mental health. Taylor v. State, 261 Ga. at 289 (1) (a), supra.

(d) Defendant’s final contention is that trial counsel was deficient in failing to object to Dr. Suzanne Canning as a rebuttal witness, arguing the order of testimony is established by OCGA § 17-7-130.1. Assuming that Code section applies as defendant contends, nevertheless, ££ £[d]iscretion in regulating and controlling the business of the court is necessarily confided to the [presiding] judge. . . .’ Carr v. State, 76 Ga. 592 (2c); Code Ann. § 24-104 [now OCGA § 15-1-3].” Simpkins v. State, 149 Ga. App. 763, 769 (4) (256 SE2d 63). The order of presentation did not unfairly prejudice defendant in this case. Consequently, the trial court correctly denied defendant’s motion for new trial on the special ground of ineffective assistance of counsel. Shaw v. State, 211 Ga. App. at 649 (2), supra.

Judgment affirmed.

Andrews and Ruffin, JJ., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A99A0484.
    DAVIDSON v. THE STATE.
    (516 SE2d 550)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with one violation of the Georgia Controlled Substances Act by possessing marijuana with intent to distribute and further charged with one count of theft by receiving stolen property, namely a Glock .40 caliber handgun. After defendant’s motion to suppress marijuana found in an apartment refrigerator freezer was denied, he stipulated that the evidence adduced at the suppression hearing would be the same at trial and consented to a bench trial on Count 1. Defendant was adjudicated guilty of possession with intent to distribute and an order of nolle prosequi was entered as to Count 2, theft by receiving. This direct appeal followed. Held:

In his sole enumeration of error, defendant contends the trial court erred in overruling his motion to suppress. He argues his consent to search was the product of a coercive and illegal detention. Viewed in the light most favorable to the trial court’s determination, the evidence adduced at the suppression hearing revealed the following:

On December 23,1995, between 4:00 and 6:00 p.m., David Saunders reported the burglary of his townhome, during which “[n]umerous items including Christmas gifts, answering machine, VCR, jewelry, [and] money . . .” were taken. After police made a written report, Saunders continued to investigate. The direction of a broken fence led Saunders to an apartment building directly behind his townhome, where, in the breezeway, Saunders found “[t]he remains of the wrapping paper and the boxes and the greeting card [Saunders] bought [his] wife. . . .” Saunders identified defendant as the apartment’s resident at that time. Saunders again summoned the police, but when they knocked on the apartment door at 9:00 p.m., there was no answer. Neighbors thought it strange that defendant should have a greeting card with David Saunders’ name, since the resident was named George.

Less than a week later, on December 29, 1995, Saunders saw defendant loading all his belongings into a large U-Haul truck and informed the police that defendant was moving. Defendant finished loading the truck, and the police arrived shortly after he departed. Saunders gave a description, and shortly thereafter, the police telephoned him to come identify defendant and the truck. The truck was located at the front of Upton’s parking lot off Jimmy Carter Boulevard. There, Saunders overheard the police ask defendant if they “could look inside his apartment and [defendant] said yes.”

Previous to Saunders receiving the telephone call from police to come and identify defendant in the stopped truck, Officer Randall L. Hoagland of the Gwinnett County Police Department had responded to Saunders’ call on December 29, 1995. After being briefed by Saunders, Officer Hoagland left the Saunders’ townhome en route to defendant’s apartment when the officer passed the U-Haul. Based on Saunders’ description plus information received from Investigator Brady, Officer Hoagland stopped the U-Haul truck driven by defendant at approximately 12:38 p.m. Officer Marolli responded as backup. Once defendant stepped out of the rental truck, Officer Hoagland patted him down. After being advised of his rights, defendant acknowledged he understood and gave oral consent to look in the truck. Officer Hoagland contacted Saunders, who arrived “about five minutes later [, and] looked through to see if there was any property of his inside the van.” This search yielded no stolen property. Officer Hoagland then asked defendant, “did he have a problem if we went over there to look into his apartment, to make sure that he had nothing there. He [defendant] said no, he had no problem with it whatsoever.” Defendant further volunteered he had nothing to hide. Defendant was handcuffed and placed in the back of Officer Hoagland’s patrol car. At approximately 1:11 p.m., Officer Hoagland and defendant left the parking lot and returned to defendant’s former apartment. At no time did defendant ever say “I don’t want you to search my apartment or let me go.” Defendant was extremely cooperative. They arrived at the apartment at approximately 1:17 p.m., and defendant again consented to a search. When the officer walked in, he saw a couple of water pipes (bongs) out in the open in the kitchen area. Officer Hoagland asked defendant what were these doing here, and defendant replied they were his. Because of this drug paraphernalia, Officer Hoagland again asked if defendant had a problem with the officer searching the apartment further, and defendant stated he did not have a problem at all. Detective Brady arrived approximately ten or fifteen minutes later and confirmed that defendant consented to a search of the apartment. Officer Hoagland made a systematic search of the apartment and found several other water pipes, burnt marijuana cigarettes (roaches) and a nine millimeter Glock pistol on the countertop. Inside the refrigerator freezer Officer Hoagland found “a plastic bag with a large quantity of marijuana in it.” Defendant asked to use the restroom, so Detective Brady searched his person, discovering “approximately $11,800 cash rolled up and stuffed down in [defendant’s] underwear.” In Detective Brady’s opinion, absent defendant’s consent, a lawful search of the apartment could not have been conducted. Defendant confirmed he consented to a search of his apartment but only by the burglary victim, Saunders, and not by the police.

The initial stop of defendant’s U-Haul vehicle was authorized by the burglary victim’s report that the suspect was loading his possessions into a rental truck and moving out of the apartment. Hinson v. State, 229 Ga. App. 840, 842 (1) (c) (494 SE2d 693), rev’d on other grounds, State v. Hinson, 269 Ga. 862 (506 SE2d 870). “Once a voluntary consent is legally obtained, it continues until it is either revoked or withdrawn.” (Citations and punctuation omitted.) McDaniel v. State, 227 Ga. App. 364, 366 (2) (489 SE2d 112). The evidence in the case sub judice authorized a finding that defendant consented to the search of his apartment by police before he was ever placed in handcuffs. Defendant never revoked or withdrew his initial consent. Consequently, the trial court’s ruling that defendant’s consent was not the product of an illegal or coercive detention is not clearly erroneous.

Decided April 20,1999

Reconsideration denied May 4,1999

Henderson & Lipscomb, Lyle K. Porter, for appellant.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Ruffin, JJ., concur.


text:
    A99A0589.
    MALOY v. THE STATE.
    (516 SE2d 370)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of rape, aggravated sodomy, and aggravated assault. Viewed in the light most favorable to the jury’s verdicts, the evidence adduced at trial would authorize the following facts: The victim worked at a dance club where she met defendant. She thought they were going to start dating and agreed to accompany him to a nearby motel. Once in the room, they talked about sex. The victim agreed to have sex, but insisted that defendant use a condom. At first, defendant agreed but then changed his mind, saying, “no, I don’t want to use it.” The victim refused to consent to unprotected sex, and when she tried to leave the motel room, defendant grabbed her from behind and said he “wasn’t ready for [her] to go yet.” Defendant threw her down, “knock [ing] [her] head on the floor.” With both arms around the victim’s neck, defendant told her “you’re going to do it. And [the victim] couldn’t say anything.” They struggled, and defendant bit the victim on her ear. She was still telling him no when defendant “put it in . . . [her] vagina.” Defendant grabbed a fist fall of the victim’s hair and pulled it back. Defendant penetrated the victim’s rectum while she was trying to stop him. If the victim did not do what defendant wanted her to do, “he would choke [her] again. And her head was feeling hot. . . and [her] eyes were swelling up.”

Defendant left the motel room as soon as he was finished. The victim noticed blood in her eyes and went straight to a LensCrafters optical store hoping to find an eye doctor. There, the victim confided in Lashawn Tucker the events of the previous night. Specifically, the victim told Tucker “she had met a guy in a club and that he had raped her pretty brutally and choked her . . ., and that made her eyes red. . . .” Tucker confirmed the victim agreed to consensual protected sex, but the man “didn’t want to use a condom and then he proceeded to make her do it without a condom by choking her. . . .” Tucker identified State’s Exhibit 1 as a photograph taken that morning at LensCrafters, showing the victim’s eyes discolored from scleral hemorrhaging. Melissa Cameron, M.D. confirmed that such bleeding can be caused by choking, and that in her opinion, the victim’s bleeding in this case was not caused by sneezing or coughing.

The jury found defendant guilty on all three counts. His motion for new trial was denied, and this appeal followed. In his sole enumeration of error, defendant urges the general grounds, arguing “[t]he uncorroborated testimony of a witness, whose credibility is not absolute, can never be enough to prove a defendant’s guilt beyond a reasonable doubt.” Held:

1. “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” OCGA § 24-9-80. In 1978, the General Assembly “removed the corroboration requirement which was specifically a part of the previous rape statute,” Code Ann. § 26-2001, now OCGA § 16-6-1 (Ga. L. 1978, p. 3 amending Ga. L. 1968, pp. 1249, 1299). Baker v. State, 245 Ga. 657, 664-666 (5) (266 SE2d 477). Similarly, there is no corroboration requirement for sodomy as proscribed by OCGA § 16-6-2 (a), aggravated or otherwise. Motes v. State, 161 Ga. App. 173-174 (3) (288 SE2d 256). Nor is corroboration required to prove aggravated assault, proscribed by OCGA § 16-5-21 (a) (2), as alleged in the indictment. Whether defendant’s arms (a part of his anatomy) in the case sub judice were deadly weapons was a question of fact. See Arnett v. State, 245 Ga. 470, 472-473 (3) (265 SE2d 771) (“Whether fists are deadly weapons is a question for the jury.”).

2. We review the evidence in the light most favorable to the jury’s verdicts.

“On appeal, our review is restricted to the legal sufficiency of the evidence, not the weight of the evidence. The jury was authorized to reject (defendant’s) testimony and accept the victim’s testimony. Further, we have reviewed the transcript and find sufficient evidence [under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560)] to authorize the jury’s findings that (defendant) was guilty beyond a reasonable doubt, of the offense of (rape) [by forcing the victim to have vaginal intercourse against her will] (as alleged in the indictment).”

Decided April 14,1999

Reconsideration denied May 4,1999.

Maryann F. Blend, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Aileen R. Page, Assistant District Attorneys, for appellee.

Knight v. State, 216 Ga. App. 200, 201 (2) (453 SE2d 798). The victim’s testimony in the case sub judice is also sufficient to establish the elements of aggravated assault and aggravated sodomy beyond a reasonable doubt. Miller v. State, 228 Ga. App. 754, 755 (1) (492 SE2d 734). The general grounds are without merit.

Judgment affirmed.

Andrews and Ruffin, JJ, concur.


author: Blackburn, Presiding Judge.

text:
    A99A0212.
    LANIER v. THE STATE.
    (517 SE2d 106)
   Blackburn, Presiding Judge.

Steven A. Lanier appeals his convictions, following a jury trial, of driving after being declared a habitual violator and two counts of driving under the influence of alcohol. For the reasons set forth below, we affirm Lanier’s convictions.

1. In his first enumeration of error, Lanier contends that the State failed to prove that he was properly served with notice of his license revocation.

OCGA § 40-5-58 (b) provides that the State must notify any person found to be a habitual violator “by certified mail, with return receipt requested; or, in lieu thereof, notice may be given by personal service upon such person.” At trial, in the present case, the State sought to introduce two certified documents, Exhibits 7 and 8, reflecting that Lanier had been served with notice of his habitual violator status. Lanier’s trial counsel objected, raising an insufficient foundation argument. The Court reserved ruling on Exhibit 7, which was admitted properly at a later point, and tacitly admitted Exhibit 8. See Hite v. State, 208 Ga. App. 267, 269 (430 SE2d 125) (1993) (evidence introduced but not expressly admitted was tacitly admitted).

Exhibit 8 was a document entitled “Official Notice of Revocation and Service by Court” which was signed by Lanier acknowledging that he was personally served with notice of the habitual violator revocation order. Lanier’s foundation objection was without merit, and the trial court properly admitted it. Furthermore, both Lanier and the State referred to his status as a habitual violator in their closings. Therefore, viewing the evidence in the light most favorable to the verdict, it was sufficient under the standard of Jackson v. Vir ginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to prove that Lanier had been validly served with notice of his status as a habitual violator.

2. In his second enumeration of error, Lanier contends that his trial counsel was ineffective in that he did not object to hearsay statements from an officer regarding Lanier’s knowledge of his status as a habitual violator which the officer received from the dispatcher.

To show that trial counsel was ineffective, Lanier must show both that counsel’s performance was deficient and that the deficiency so prejudiced his defense that a reasonable probability exists that the outcome of trial would have been different but for the deficiency. Hassan v. State, 231 Ga. App. 783, 784 (500 SE2d 644) (1998). Lanier’s trial counsel did not object to the officer’s testimony regarding his dispatcher’s report. Furthermore, even if such testimony was improperly admitted, it was cumulative of the evidence properly admitted in Exhibits 7 and 8. Lanier has failed to meet this burden of showing ineffective assistance of counsel.

3. Lanier contends that no competent evidence was admitted that he operated his vehicle in a less safe manner.

OCGA § 40-6-391 (a) (1) makes it unlawful for a person to drive or be in actual physical control of any moving vehicle [while u]nder the influence of alcohol to the extent that it is less safe for the person to drive. There is no requirement that the person actually commit an unsafe act.

(Punctuation omitted.) Apperson v. State, 225 Ga. App. 804, 805 (2) (484 SE2d 739) (1997). See also Shannon v. State, 205 Ga. App. 831, 833 (4) (424 SE2d 51) (1992).

Trooper Gunnin testified that, as he was operating a drive-through license check point, Lanier failed to heed his audible and visual signals to stop at the intersection where road flares and flashing blue lights had been posted. Lanier pulled through the check point and traveled an additional 100 yards before stopping. Trooper Gunnin testified that he detected a strong odor of alcoholic beverage about Lanier, that Lanier’s eyes were red, his speech was slurred, and he was unsteady on his feet. Additionally, Lanier admitted, at the time of the stop, that he was “drunk.” Thus, a rational trier of fact could have found Lanier guilty beyond a reasonable doubt of driving under the influence to the extent that he was a less safe driver. See Jackson v. Virginia, supra.

4. Lanier contests the admissibility of the results of the Intoximeter 5000, arguing that there was no evidence as to what significance should be attributed to the results.

Trooper Gunnin testified that he read the implied consent notice to Lanier, which was admitted into evidence. The notice provides, among other things, that Georgia law requires submission to a State-administered chemical test of the defendant’s breath to determine whether the defendant is under the influence of alcohol. The notice further provides that if the results of the test indicate an alcohol concentration of 0.10 grams or more the defendant’s driver’s license may be suspended. Trooper Gunnin testified that he administered a breath test on an Intoximeter 5000 which produced the results of .136 and .137. Additionally, the trial court charged the jury that, pursuant to OCGA § 40-6-391 (a) (5),

it shall be unlawful for any person to drive or be in actual physical control of any moving vehicle while that person’s alcohol concentration is .10 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended.

From this evidence, it is clear what the Intoximeter 5000 was testing and what the numerical results meant. “[Jjurors are entitled to use their own common sense as intelligent human beings on many questions.” Feldschneider v. State, 127 Ga. App. 745, 746 (1) (195 SE2d 184) (1972). Therefore, it was not error to admit the results without testimony that it meant .136 grams of alcohol concentration in Lanier’s blood.

5. Lanier contends that there was no competent evidence showing that the Intoximeter 5000 was operating properly at the time it was used in connection with this case. Contrary to Lanier’s enumeration, the State introduced a certificate of inspection performed before Lanier’s test and after Lanier’s test showing that the machine was working properly. In addition, Trooper Gunnin testified that the instrument was operating properly at the time he performed the test on Lanier. Contrary to Lanier’s argument, an inspection directly before and after each defendant’s test is not required. Cf. Rowell v. State, 229 Ga. App. 397, 398-399 (1) (b) (494 SE2d 5) (1997).

6. Lanier contends that he was afforded ineffective assistance of counsel because his trial counsel failed to object to Trooper Gunnin’s testimony regarding the results of the Intoximeter 5000. Contrary to appellate counsel’s position, trial counsel did object several times to the admission of the results. Furthermore, as we have found that the results were admissible, trial counsel was not ineffective on this ground. See Hassan, supra.

7. In his final enumeration of error, Lanier asserts that the trial court erred in denying his motion for new trial. However, this enumeration is not supported by any argument or citation of authority different from that contained in his previous enumerations. Therefore, based on Divisions 1 through 6 above, the trial court properly denied Lanier’s motion for new trial.

Decided May 4,1999.

Fred R. White, for appellant.

Richard R. Read, District Attorney, Robert G. Mikell, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Pope, Presiding Judge.

text:
    A99A0344.
    HOUSTON v. THE STATE.
    (517 SE2d 357)
   Pope, Presiding Judge.

Joseph Houston, a juvenile, was charged as an adult with armed robbery and aggravated assault. He denied the charges and was tried before a jury, which returned guilty verdicts on both counts. The trial court sentenced Houston to serve 12 years. Houston appeals.

1. Houston’s claim that the evidence is insufficient to support the convictions is without merit. At trial, Bill Sparks and Maggie Scott testified that early one morning near Sparks’ apartment they were accosted by three men, one of whom had a gun. The gunman pointed the weapon at Sparks’ face and demanded his money. After Sparks showed the robbers that he did not have any money, the robbers took Scott’s wallet. Two of the robbers then walked away while the gunman forced Sparks and Scott to walk to a secluded area near the apartment building. The gunman left the victims in the secluded area and ran to the getaway car. Neither Scott nor Sparks could definitively identify Houston as one of the robbers, but Sparks testified that Houston looked like the gunman.

One of the robbers, Terry Evans, identified Houston at trial as the gunman and as the one who took Scott’s wallet. Evans’ former girlfriend, Rebecca McDonald, testified that during the robbery she and a friend waited in the getaway car. After the robbery Houston returned to the car with a pocketbook and explained how he had taken it from a woman. Houston did not present any evidence.

Having reviewed the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found Houston guilty beyond a reasonable doubt of armed robbery of Scott and aggravated assault of Sparks. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); White v. State, 267 Ga. 523 (1) (481 SE2d 804) (1997).

2. Contrary to Houston’s enumerated error, the court correctly ruled that Houston could not impeach a witness by showing only that she had been arrested without showing a certified copy of conviction..

A witness may be impeached by showing a conviction of a crime of moral turpitude. Specific instances of misconduct may not be used to impeach a witness’s character or credibility, unless the misconduct has resulted in conviction of such a crime. A mere indictment or a charge or an arrest or a trial and acquittal are not legal methods of impeachment. The proper method of proving the conviction is by introducing a certified copy.

(Citations and punctuation omitted.) Smith v. State, 222 Ga. App. 366, 369-370 (4) (474 SE2d 272) (1996). The trial court thus did not err in limiting Houston’s attempted impeachment of the witness. See Howard v. State, 204 Ga. App. 743-745 (1) (420 SE2d 594) (1992).

3. Houston complains that during his questioning of a witness the court misstated the law in front of the jury by commenting that a person who knows of a crime after it happens is not a party to the crime. Although incomplete, the comment was not an inaccurate statement of the law of parties to a crime. “An accessory after the fact is not a party to the crime under OCGA § 16-2-21, but the act constitutes the separate offense of obstruction of justice under OCGA § 16-10-24. . . .” Martinez v. State, 222 Ga. App. 497, 499 (2) (474 SE2d 708) (1996). Accordingly, the court’s statement was not erroneous.

Moreover, defense counsel did not object at the time of the court’s statement, and thus the issue was not preserved for appeal. See Davis v. State, 234 Ga. 730, 731 (2) (218 SE2d 20) (1975); Betsill v. State, 185 Ga. App. 755 (365 SE2d 548) (1988). Houston has failed to show any error requiring reversal of his convictions.

4. Houston argues that aggravated assault is not one of the seven felonies over which the superior court has exclusive jurisdiction when the crime is committed by a juvenile, and thus the court erroneously sentenced him for his aggravated assault conviction.

The Supreme Court rejected this same argument in Reynolds v. State, 266 Ga. 235, 236 (2) (466 SE2d 218) (1996), in which it held the superior court’s jurisdiction over felonies designated in OCGA § 15-11-5 (b) (2) (A) extends to offenses committed as “part of the same criminal transaction as the . . . greater offenses.” As the aggravated assault in this case was committed as part of the same criminal transaction as the greater offense of armed robbery, this enumeration of error is without merit.

Decided May 4,1999.

Thurmond, Mathis & Patrick, David T. Wooten, for appellant.

Harry N. Gordon, District Attorney, James D. Love, Assistant District Attorney, for appellee.

Leeks v. State, 226 Ga. App. 227-228 (2) (483 SE2d 691) (1997).

Judgment affirmed.

Smith and Eldridge, JJ., concur.

       OCGA § 15-11-5 (b) (2) (A) provides that the superior court has exclusive jurisdiction over the trial of any child 13 to 17 years of age who is alleged to have committed murder, voluntary manslaughter, rape, aggravated sodomy, aggravated child molestation, aggravated sexual battery or armed robbery if committed with a firearm.


author: Judge Harold R. Banke.

text:
    A99A0368.
    MULKEY v. THE STATE.
    (517 SE2d 362)
   Judge Harold R. Banke.

Glover Mulkey was convicted of driving under the influence, misdemeanor. obstruction of an officer (three counts), and false swearing. He contends the court erred in failing to grant a mistrial when the prosecutor put his character in evidence during the opening statement.

The indictment accused Mulkey of swearing falsely to a magistrate judge that a man named Harris intentionally struck Mulkey in the chest with his fist on May 24, 1997. In his opening statement the prosecutor told the jury he expected to show that Mulkey swore out a warrant for Harris’ arrest five months after the alleged incident, and that Mulkey said the reason he waited to take action was that he only got mad at Harris when Harris caused him to get sent to jail for fifty-four days by calling Mulkey’s probation officer. Mulkey immediately moved for a mistrial on the grounds that the prosecutor improperly brought his character in issue by mentioning the probation. The court denied the motion. Held:

The State argues the statement tends to show Mulkey’s motive for swearing falsely and that therefore it is admissible as part of the proof of the crime charged. A person commits the crime of false swearing when he knowingly and wilfully makes a false statement under oath. OCGA § 16-10-71 (a).

“Generally, motive is not an essential element of any crime unless made so by statute,” Pope v. State, 140 Ga. App. 643, 647 (4) (231 SE2d 549) (1976), and motive is not an element of false swearing. See OCGA § 16-10-71 (a). But where evidence of motive is relevant to an issue in the case, it is not rendered inadmissible merely by the fact that it incidentally places the defendant’s character in issue. Chesser v. State, 228 Ga. App. 164,165 (1) (b) (491 SE2d 213) (1997). Accord Hayes v. State, 265 Ga. 1, 3 (4) (453 SE2d 11) (1995); Johnson v. State, 260 Ga. 457, 458 (2) (396 SE2d 888) (1990). And, “[a] prosecuting attorney in an opening statement may state what he expects in good faith the evidence will show during trial of the case.” Ross v. State, 233 Ga. App. 26, 27 (1) (503 SE2d 308) (1998).

Decided May 4,1999.

Richard Thurman, for appellant.

Roger Queen, District Attorney, John G. Wilbanks, Jr., Assistant District Attorney, for appellee.

The statement is relevant here because it suggests Mulkey had a motive for fabricating criminal charges in order to get revenge on Harris for calling his probation officer. See, e.g., Klinect v. State, 269 Ga. 570, 574 (7) (501 SE2d 810) (1998) (testimony that defendant had been arrested on a marijuana charge before the murder was relevant to motive to kill in revenge for being turned in on drug charges); Stevenson v. State, 234 Ga. App. 103, 105 (2) (506 SE2d 226) (1998) (defendant’s statement that he had a bad record was relevant to lack of intent to harm officers).

Judgment affirmed.

Blackburn, R J., and Barnes, J., concur.


text:
    A99A0422.
    AETNA INSURANCE COMPANY v. WILLIAMS.
    (517 SE2d 109)
   McMurray, Presiding Judge.

On November 29, 1990, the United States District Court for the Northern District of Florida awarded $8,439.58 in attorney fees as a sanction jointly and severally against Thomas Meeker and his then-counsel, defendant herein, Peter G. Williams, in favor of plaintiff herein, Aetna Insurance Company (“Aetna”). Defendant appealed, but this award was affirmed on February 19, 1992, in a published opinion: Aetna Ins. Co. v. Meeker, 953 F2d 1328, 1334 (IV) (11th Cir. 1992). On July 25, 1996, Aetna gave notice by certified mail to defendant of filing an authenticated copy of that foreign judgment with the Superior Court of Muscogee County, Georgia, under OCGA § 9-12-130 et seq., the Uniform Enforcement of Foreign Judgments Law. Pursuant to OCGA § 9-11-69, Aetna propounded interrogatories to defendant Williams and subsequently moved to compel discovery. Meanwhile, defendant Williams moved, ex parte, to stay enforcement of the judgment on the ground that it was rendered more than five years before this proceeding commenced and so was time-barred by OCGA § 9-3-20. This motion was conditionally granted, with direction that Aetna show cause why the stay should not be made permanent. Defendant also obtained a protective order, relieving him of the duty to respond to post-judgment discovery. Aetna’s subsequent motion to lift the stay and vacate the protective order was denied by implication with the entry of an indefinite stay, and this direct appeal followed. Held:

1. Aetna first contends the trial court erred in failing to lift the stay, arguing that the five-year statute of limitation for enforcing a foreign judgment established by OCGA § 9-3-20 is inapplicable under the Uniform Law, citing Wright v. Trust Co. Bank, 219 Ga. App. 551 (466 SE2d 74).

A copy of any foreign judgment authenticated in accordance with an act of Congress or statutes of this [S]tate may be filed in the office of the clerk of any court of competent jurisdiction of this [S]tate. The clerk shall treat the foreign judgment in the same manner as a judgment of the court in which the foreign judgment is filed. A filed foreign judgment has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, staying, enforcing, or satisfying as a judgment of the court in which it is filed and may be enforced or satisfied in like manner.

OCGA § 9-12-132. Also, OCGA § 9-12-134 (b) provides for a stay of enforcement of a foreign judgment “[i]f the judgment debtor shows the court any ground on which enforcement of a judgment of the court of this [SJtate would be stayed. . . (Emphasis supplied.)

In Wright, the Georgia judgment debtor sought to dismiss the 1995 filing of a 1987 judgment under the Uniform Law. 219 Ga. App. at 551, supra. The trial court permitted the filing, and this Court affirmed, reasoning that the five-year limitation imposed on new actions to enforce a foreign judgment did not bar the filing of the allegedly stale judgment under the summary procedures of the Uniform Law. Consequently, dismissal of that filing was not an authorized remedy. Eather, “[t]he remedy allowed a judgment debtor under the [Uniform Law] is a stay of enforcement. [Cit.]” Id. at 552. In the case sub judice, defendant requested the proper procedural remedy from an allegedly stale foreign judgment filed under the Uniform Law, namely a stay of enforcement. Nevertheless, the grant of the stay is erroneous in this instance because under the plain wording of OCGA § 9-12-134 (b), a judgment rendered by a court of competent jurisdiction in this State simply is not subject to the limitation period imposed on foreign judgments by OCGA § 9-3-20. Rather, judgments filed under the Uniform Law are subject to a stay of execution if they are dormant under OCGA § 9-12-60 (a). As a general rule, a judgment becomes dormant if seven years elapse after rendition of judgment and before execution thereon is issued and entered on the general execution docket. OCGA § 9-12-60 (a) (1). It is evident that the trial court’s ruling in the case sub judice rests upon an erroneous legal theory, and such reliance on an erroneous legal theory requires reversal. All Phase Elec. Supply Co. v. Foster & Cooper, Inc., 193 Ga. App. 232, 233 (2) (387 SE2d 429).

Decided May 4,1999

Drew, Eckl & Farnham, James M. Poe, James L. Creasy III, for appellant.

Peter G. Williams, pro se.

2. Remaining arguments have been considered and are found to be moot.

Judgment reversed.

Andrews and Ruffin, JJ, concur.


text:
    A99A0456.
    DEPARTMENT OF HUMAN RESOURCES v. SMITH.
    (517 SE2d 111)
   McMurray, Presiding Judge.

This is an action filed pursuant to OCGA § 19-11-23 for recovery of child support from deféndant Smith based on allegations that plaintiff Georgia Department of Human Resources has provided support in the form of Aid to Families with Dependent Children to a minor child. The superior court entered an order denying the requested child support, and this Court granted plaintiff permission to file this appeal. Held:

While the superior court’s order recites that “the facts hav[e] been stipulated, . . .” the record contains nothing clearly identified as the referenced stipulation. Nonetheless, some facts of the case are apparent as admitted via pleadings, discussed during argument of counsel, and stated in the superior court’s order. These sources show that Steven Cecil Smith and Connie S. Smith were formerly married and during that marriage had one child, who via the divorce decree was placed in the custody of the defendant father while the mother was forgiven any obligation to pay child support. Subsequent to the divorce, the parents renewed cohabitation and a second child was born, who has remained with the mother. According to an oral agreement between the parties which was not ápproved by any Court, each parent was to satisfy the needs of the child in their respective possession and neither party was to pay support to the other.

The superior court’s order provides that the defendant father shall not be required to make child support payments with respect to the younger child so long as he has a legal obligation for the support of the older child. After hearing the argument of counsel, the superior court stated that “[m]y ruling is I’m not ordering him to pay any child support for this child you’re wanting support for because he’s supporting one child solely without any assistance from the mother.” However, the written order contains no reference to this basis for decision but does suggest, without ruling upon the issue, that upon emancipation of the older child it may be appropriate to impose upon the defendant father a child support obligation for the younger child.

The matter has apparently come to the attention of the authorities because the mother together with the second child has received public assistance which creates a debt in favor of the State pursuant to OCGA § 19-11-5, a debt which may be enforced against a noncustodial parent. Nonetheless, plaintiff has acknowledged that the defendant father never received any official notification that the mother was receiving public assistance and consequently does not seek reimbursement for past money received by the mother. Whether the mother continued receiving public assistance is not shown by the record on appeal; the argument of plaintiff’s counsel suggests that she has, while defense counsel states in argument before the superior court that the mother’s eligibility for public assistance had been terminated by administrative process.

The plaintiff has the right and duty to collect child support and reimbursement from the non-custodial parent for public assistance payments made to the mother on a child’s behalf, and, since one parent cannot contract away the right of a child to be supported by the other parent, this process may not be compromised by any agreement between the parents. Dept. of Human Resources v. Woodruff, 234 Ga. App. 513 (507 SE2d 249); Collins v. Collins, 172 Ga. App. 748 (324 SE2d 475). Plaintiff’s enumerations of error maintain that the superior court has failed to respect these principles, improperly allowed an agreement of the parents to interfere with attempts to obtain reimbursement of AFDC payments, and thereby defeated the purposes underlying Title IV-D of the Federal Social Security Act. However, only one of the points raised by plaintiff is supported by the record on appeal which fails to show any meritorious claim for reimbursement of past or future expenditures of public funds and also fails to show that the custodial mother supports the plaintiff’s claim.

“[A] custodial parent who has received [or continues to receive] public assistance benefits from the state can[not] prevent the state from exercising its statutory right to obtain reimbursement from the non-custodial parent.” Dept. of Human Resources v. Woodruff, 234 Ga. App. at 515 (1), supra. However, this construction of the statutory scheme provided by OCGA § 19-11-6 (a) for recovery of public funds may not be applicable in the present case since plaintiff has expressly waived any right to recover public assistance paid in the past and there is no evidence of any continuing payments.

Decided May 4,1999.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Katherine S. Davis, Assistant Attorney General, for appellant.

Martin L. Fierman, for appellee.

Furthermore, we note OCGA § 19-11-6 (b) which provides for the continued collection of child support by plaintiff on behalf of a past recipient of child support, but are unable to determine the correct application of this statute due to the incomplete record on appeal. During the argument of counsel, defense counsel questioned whether the custodial mother was actually entitled to public assistance and, on appeal, raises questions with respect to the State’s entitlement to recover from the non-custodial parent where, for example, the custodial parent fraudulently obtains public assistance. These issues were not addressed in the superior court’s order.

The superior court order is not clear as to whether it seeks to enforce the agreement between the parents, a solution which contravenes the previous appellate decisions cited in this opinion. However, the superior court’s order does contain specific reference to the agreement of the parties while nothing in the order suggests that the superior court has determined defendant’s current child support obligation for the younger child to be zero by consideration of circumstances, such as defendant’s past and continuing obligation to support the former couple’s older child, which are independent of the parents’ agreement. Therefore, we construe the superior court’s order as being predicated upon the void agreement between the parents and vacate the judgment. The case must be remanded for a decision consistent with the prior appellate decisions cited in this opinion and with due regard for the younger child’s right to the support of both parents.

Judgment vacated and case remanded with direction.

Andrews and Ruffin, JJ, concur.


text:
    A99A0488.
    VOYLES v. THE STATE.
    (517 SE2d 113)
   Pope, Presiding Judge.

Teresa Ann Voyles was convicted of possessing methamphetamine with intent to distribute. She appeals from the conviction, challenging the trial court’s denial of her motion to suppress evidence. The challenge is without merit.

1. “On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous.” (Citations and punctuation omitted.) Fritzius v. State, 225 Ga. App. 642, 644 (484 SE2d 743) (1997).

Construed most favorably to uphold the trial court’s findings and judgment, the evidence in the instant case shows Appalachian Drug Task Force Agent Carlton Chester obtained a search warrant for Voyles’ house. On the day the warrant was to be executed, Lumpkin County Sheriff’s Investigators Anne Martin and Stacy Jarrard were keeping Voyles under surveillance from the time she left her work place until she arrived at her home. Investigators Martin and Jarrard saw Voyles leave work in her van. As they followed her, Voyles drove into a Wal-Mart parking lot and parked. Investigators Martin and Jarrard stopped their car nearby and, when Voyles got out of the van, asked to see her identification and proof of insurance. While the investigators spoke with Voyles, Agent Chester and another Appalachian Drug Task Force member, Agent Evans, arrived in the parking lot. Agent Chester told Voyles he suspected that there were drugs in her vehicle and asked for permission to search it. Voyles consented to a search. Agent Evans then searched the vehicle and found four bags of methamphetamine.

Voyles argues the investigators had no reasonable suspicion to stop her in the Wal-Mart parking lot and thus her subsequent consent to the search of the van was tainted. But contrary to Voyles’ argument, the investigators’ approach did not rise to the level of a stop that needed to be supported by reasonable suspicion.

There are three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. In the first level, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.

Decided May 4,1999.

B. Dean Grindle, Jr., for appellant.

(Citations and punctuation omitted.) McClain v. State, 226 Ga. App. 714, 716 (1) (487 SE2d 471) (1997).

In the instant case, the police did not stop Voyles’ van; rather she stopped and parked it of her own volition. When Voyles voluntarily got out of the vehicle, Investigators Martin and Jarrard did not detain her. Instead, they merely approached Voyles and asked for identification without creating the impression that she could not leave; they were driving an unmarked police car without blue lights flashing, did not have weapons drawn, did not tell Voyles she could not leave, did not handcuff her or place her in their car or otherwise restrict her movement. When Agents Chester and Evans arrived in their unmarked police car, they also did nothing to detain Voyles. Agent Chester did not tell Voyles she could not leave, but simply asked for permission to search the van. Voyles was free to refuse the request and leave the scene. Compare State v. Crank, 212 Ga. App. 246 (441 SE2d 531) (1994).

“The actions of an officer approaching a stopped vehicle, requesting to see a driver’s license, and inquiring about possible criminal or suspicious activity clearly fall within the realm of the first type of police-citizen encounter and do not amount to a stop. [Cits.]” McClain v. State, 226 Ga. App. at 716-717 (1). Because the officers’ communications with Voyles were within the realm of the first tier of police-citizen encounters and did not amount to a stop, they did not need to be supported by reasonable suspicion of criminal activity. Consequently, Voyles’ consent to the search of her van was valid and not tainted by an illegal stop. The trial court therefore did not err in ruling that evidence of the drugs found in the van during the valid consensual search was admissible. See Taylor v. State, 230 Ga. App. 749, 751-752 (1) (e) (498 SE2d 113) (1998); Garcia v. State, 207 Ga. App. 653-656 (1) (428 SE2d 666) (1993).

2. Voyles concedes in her brief that her remaining enumerations of error are premised on her argument that evidence of the methamphetamine found in the van should have been suppressed due to the illegal search of her van. Based on our holding in Division 1 that the search was legal and the methamphetamine evidence was admissible, it necessarily follows that Voyles’ remaining enumerations of error are without merit.

Judgment affirmed.

Smith and Eldridge, JJ, concur.

N. Stanley Gunter, District Attorney, Lynn Akeley-Alderman, Assistant District Attorney, for appellee.


text:
    A99A0691.
    SMITH et al. v. FOLGER.
    (517 SE2d 360)
   McMurray, Presiding Judge.

Plaintiff Franchester Smith brought this tort action seeking to recover for personal injuries she sustained when defendant Neil J. Folger allegedly “drove his motor vehicle across Highway 441 in a negligent and reckless fashion causing the two vehicles to collide.” Plaintiff Lakesha Smith, a passenger in Franchester Smith’s vehicle, brought her own tort action, alleging the collision caused her to “suffer[ ] physical injuries and premature childbirth. ...” Defendant denied the material allegations of negligence, and the two cases were tried before a jury which returned defense verdicts. Plaintiffs’ joint motion for new trial was denied, and this appeal followed. Held:

In two related enumerations of error, plaintiffs contend the trial court erred in refusing to remove juror Dunn for cause after voir dire but before trial, because juror Dunn’s wife, plaintiff in an entirely separate tort action, was there represented by Edward J. Allen, Esquire, of Fortson, Bentley & Griffin, P.A., the defense counsel in this case, and further erred in overruling their motion for new trial on this ground.

It is undisputed that plaintiffs did not use a peremptory challenge to remove juror Dunn. Voir dire itself was not recorded, but at the hearing on plaintiffs’ motion to excuse juror Dunn, it was agreed that, during qualification of the jurors as to the parties and their counsel, juror Dunn stated that “he didn’t know whether or not. . . Fortson and Bentley was representing his wife or not, but he did realize that his wife was in litigation.” Juror Dunn “was not sure if [Edward] Allen was representing [his] wife; and so when [juror Dunn] went home at lunch, [he] verified [that Allen] is representing [juror Dunn’s] wife in a litigation concerning a car accident,” by calling the law office. Mrs. Dunn is “the plaintiff [in that case], she was hit. . . [b]ut there is no loss of consortium.” Because juror Dunn had nothing to do with his wife’s lawsuit, he “thought he recognized the name [of defense counsel or his firm], but . . . wasn’t sure.” Juror Dunn had never visited counsel’s office with his wife. The trial court inquired of juror Dunn whether the circumstance that his wife is currently being represented by counsel for this defendant “would prevent [him] from being a fair and impartial juror in the trial of this case,” to which question, juror Dunn replied, “Probably not. ... It wouldn’t persuade [juror Dunn’s] decision.” Juror Dunn further affirmed he could make his decision “based on the evidence and the charge of the Court, [and] not be influenced by any outside factors.” In response to query by plaintiffs’ counsel, juror Dunn again affirmed that he would “look at the facts and weigh [his] decision that way.” The trial court denied plaintiffs’ motion to remove juror Dunn from the jury.

1. We pretermit whether plaintiffs’ motion to excuse or remove juror Dunn, made after voir dire was concluded but before the presentation of evidence, was timely. Consequently, plaintiffs’ second enumeration is rendered moot.

2. The trial court did not err in refusing to remove juror Dunn for favor or bias.

In all civil cases, it shall be good cause of challenge that a juror has expressed an opinion as to which party ought to prevail or that he has a wish or desire as to which shall succeed. Upon challenge made by either party upon either of these grounds, it shall be the duty of the court to hear the competent evidence respecting the challenge as shall be submitted by either party, the juror being a competent witness. The court shall determine the challenge according to the opinion it entertains of the evidence adduced thereon.

OCGA § 15-12-134. In the case sub judice, plaintiffs’ challenge is based upon the suspicion that juror Dunn harbors the wish or desire that defendant prevail, on the ground that his wife is represented in a separate lawsuit (to which Mr. Dunn is not a party) by defense counsel in the instant tort action.

Jurors may be challenged, propter affectum, for suspicion of bias or partiality. This may be either a principal challenge, or to the favor. A principal challenge is such, where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favor, as that a Juror is of kin to either party within the [prohibited] degree; that he has been [an] arbitrator on either side; that he has an interest in the cause; that there is an action depending between him and the party; that he has taken money for his verdict; that he has formerly been a Juror in the same cause; that he is the party’s master, servant, counsellor, steward or attorney, or of the same society or corporation with him — all these are principal causes of challenge, which, if true, cannot be overruled, for Jurors must be omni exceptione majores [above all challenge]. 3 Bl. Com. 363.

(Emphasis in original.) Mayor &c. of Columbus v. Goetchius, 7 Ga. 139, 142 (1) (1849). In the case sub judice, Mr. Dunn explained he had no interest in his wife’s case, and that he would render a verdict in this case based upon the evidence and the charge of the court. In our view, this juror was not disqualified, due to his wife’s representation by defense counsel in a separate civil matter, under OCGA § 15-12-134 or § 15-12-135 (a). The trial court did not err in failing to remove this qualified juror. Ford v. Saint Francis Hosp., 227 Ga. App. 823, 828 (5) (490 SE2d 415). Compare Glover v. Maddox, 100 Ga. App. 262, 265 (5) (111 SE2d 164) (reversible error to deny new trial where prospective juror, who later serves, fails to inform counsel for losing party that he personally had been represented by opposing counsel).

Decided May 4,1999.

I. Kenneth Dious, for appellants.

Fortson, Bentley & Griffin, J. Edward Allen, Jr., for appellee.

Judgment affirmed.

Andrews and Ruffin, JJ, concur.


author: Johnson, Chief Judge.

text:
    A99A0753.
    DAVIS v. THE STATE.
    (517 SE2d 115)
   Johnson, Chief Judge.

Dewayne Davis was convicted of driving while under the influence of alcohol, obstruction of a law enforcement officer, and possession of an open container of alcohol while operating a vehicle. He appeals, contending the trial court erred in denying his motion in limine to exclude evidence obtained as a result of what he claims was an illegal stop.

In reviewing a trial court’s order on a motion in limine, we construe the evidence most favorably to uphold the ruling. Thompson v. State, 234 Ga. App. 74 (1) (506 SE2d 201) (1998). The trial court resolves conflicts in the evidence, and its findings of credibility and fact will not be disturbed unless they are clearly erroneous. Peeples v. State, 234 Ga. App. 454 (1) (507 SE2d 197) (1998).Viewed in this light, the evidence shows the following: State patrol officers set up a roadblock to check for driver’s licenses and proof of insurance. One of the officers saw Davis’ truck turn onto a dirt road approximately 20 to 25 yards before reaching the roadblock. Nothing was located on the road except a chicken house. The officer followed the truck to see where it was going and what the occupants were doing. As the officer turned onto the dirt road, he noticed that the truck had stopped and the door was open. He watched as Davis got out of the door on the driver’s side and the passenger got out of the other door. Davis and the passenger walked to a hill and stood there. The officer saw Davis “turn [a] beer up,” throw it down and then run as the officer opened his door to get out of the patrol car. The officer chased Davis on foot and caught him. According to the officer, it was “pretty obvious” that Davis was intoxicated. Ten empty beer cans were found in the truck. Davis was later given a breath test, and the result was a blood-alcohol level of .154.

On the day of trial, Davis moved in limine to exclude evidence obtained by the officer on the ground that the officer had no articulable suspicion to justify the stop. The trial court denied the motion. We affirm the trial court’s ruling.

There are three tiers of police-citizen encounters: (1) communications between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment; (2) brief seizures that must be supported by reasonable suspicion; and (3) full-scale arrests that must be supported by probable cause. McClain v. State, 226 Ga. App. 714, 716 (1) (487 SE2d 471) (1997).

A pursuit constitutes a seizure where there is either the application of physical force or submission to an officer’s show of authority. State v. Wright, 221 Ga. App. 202, 207 (4) (470 SE2d 916) (1996). The officer’s following of Davis’ truck (with no lights flashing on the patrol car) did not constitute a seizure under the Fourth Amendment. See id.; McClain, supra at 716. Therefore, that act came within the first tier of encounters and reasonable suspicion was not necessary.

The officer’s act of approaching the stopped truck to inquire about possible criminal or suspicious activity also falls within the realm of the first type of police-citizen communications and does not amount to a stop. See McClain, supra at 716. An officer need not have an articulable suspicion to approach a stopped vehicle. Crosby v. State, 214 Ga. App. 753, 754 (449 SE2d 147) (1994).

Similarly, an officer may approach a person who is on foot to make inquiries without the Fourth Amendment being implicated. See Edwards v. State, 264 Ga. 615, 616 (2) (449 SE2d 516) (1994). Thus, in this case, the officer was permitted to approach Davis as he stood on the hill to ask him for identification and question him as long as he did not create the impression that Davis was not free to leave. See State v. Kaylor, 234 Ga. App. 495, 497 (507 SE2d 233) (1998). A seizure within the meaning of the Fourth Amendment does not occur simply because an officer approaches a person. See Burns v. State, 216 Ga. App. 178, 179 (454 SE2d 152) (1995). Thus, the officer was not required to have articulable suspicion to lawfully approach Davis. See Miller v. State, 221 Ga. App. 494, 495 (471 SE2d 565) (1996).

Decided May 4,1999.

Rex J. McClinton, for appellant.

N. Stanley Gunter, District Attorney, William W. Woody, William J. Langley, Assistant District Attorneys, for appellee.

We note that the officer in this case made no attempt to detain Davis until after Davis began running. Flight may be evidence of consciousness of guilt and may give rise to an articulable suspicion that a person is engaged in criminal activity, authorizing an officer to stop him briefly for investigation. Redd v. State, 229 Ga. App. 364, 366 (494 SE2d 31) (1997).

The cases cited by Davis as holding that an officer must have a reasonable suspicion to justify a stop are distinguishable. For example, in Jorgensen v. State, 207 Ga. App. 545 (428 SE2d 440) (1993), the suspect turned into an apartment complex some 200 feet before a roadblock. Here, Davis turned onto a dirt road, upon which was only a chicken house, 20 to 25 yards before the roadblock. These facts made Davis’ conduct more suspicious than Jorgensen’s. Moreover, the officer in Jorgensen testified that he decided to stop the suspect as soon as he saw him turn into the complex and that the defendant was not free to leave. In this case, there was no such testimony; instead, the officer in this case simply followed and watched Davis, not approaching or attempting to stop him until he had more information.

The other cases cited by Davis, Stretcher v. State, 213 Ga. App. 670 (445 SE2d 815) (1994), and State v. Jones, 214 Ga. App. 593 (448 SE2d 496) (1994), are inapposite because the officers in those cases, through flashing lights or other means, actually caused the defendants to stop their vehicles. See McClain, supra at 717, fn. 3. As discussed above, Fourth Amendment protections do not apply to an officer’s approach of a stopped car. See id. at 716. The trial court did not err in denying Davis’ motion in limine.

Judgment affirmed.

Andrews and Ruffin, JJ., concur.


author: Smith, Judge.

text:
    A99A0015.
    GRANT v. THE STATE.
    (515 SE2d 872)
   Smith, Judge.

Charles Jerome Grant was found guilty by a jury on one count of robbery by sudden snatching. His motion for new trial, as amended, was denied, and he appeals. Finding no error, we affirm.

1. Grant filed a motion to set aside and vacate his conviction in the trial court because the record did not show that the jury had been sworn. In support of this motion, he attached the court reporter’s affidavit, which recited that the reporter had listened to the tape of the proceedings and found no recording of the jury’s being sworn after selection to serve on Grant’s case. The trial court denied the motion.

It is well settled that “a conviction by an unsworn jury is a mere nullity.” Slaughter v. State, 100 Ga. 323, 330 (28 SE 159) (1897). See also Culpepper v. State, 132 Ga. App. 733 (2) (209 SE2d 18) (1974). But the fact that the record does not show that the jury was sworn is not reversible error. “The courts of this State have consistently held that the failure of the record to reflect whether the jury is sworn does not constitute reversible error. [Cits.]” Stokes v. State, 206 Ga. App. 781 (1) (426 SE2d 573) (1992). It must appear affirmatively that the jury was not sworn. If an appellant claims that the jury was not sworn, his or her remedy is to have the record corrected by following the provisions of OCGA § 5-6-41 (f). Montford v. State, 148 Ga. App. 335 (2) (251 SE2d 125) (1978). See also Smith v. State, 235 Ga. 852, 853 (3) (221 SE2d 601) (1976); Copeland v. State, 139 Ga. App. 55, 57 (2) (227 SE2d 850) (1976). Grant failed in this regard and cannot now claim error.

2. Grant argues that evidence of a similar transaction was erroneously admitted, because his conviction on the charge of robbery by sudden snatching arising out of that transaction was reversed on appeal.

Construed to support the jury’s verdict, evidence was presented at trial that Grant and three other men entered a package store in Peach County where the victim was working. The victim was standing behind the counter when Grant asked her about an unusual brand of wine. The victim began to leave the counter to assist the men in finding that wine but sensed that “something wasn’t right” and moved back toward the counter. Grant then told her to move from behind the counter. The victim complied, Grant “nodded his head,” and two of the other men ran behind the counter, took money out of a money box, and ran outside, leaving Grant and one other man, identified as “J.B.,” inside the store. An ice cream vendor arrived in his truck outside the store, and Grant told J. B. to “go take care of him and I’ll finish her.” J. B. walked to the truck and asked for directions from the vendor. A short time later, the victim, apparently while calling the police on her cordless telephone, ran outside toward the ice cream truck, with Grant behind her. She told the vendor, Jordan, that she had just been robbed. Jordan had seen the first two men, as well as J. B., walk around the side of the building. On the scene, Grant claimed he did not know those men.

Following a Uniform Superior Court Rule 31.3 hearing, the trial court permitted the State to present evidence of a similar transaction. Evidence was presented that approximately six weeks before the incident in this case, Grant and three other men entered a convenience store in Baldwin County. Grant diverted the clerk’s attention by having her help him find batteries, and then one of the other men asked her about cigars, further diverting the clerk away from the store’s office. The store manager testified that while she was in the office preparing the bank deposit, Grant asked her the way to the restroom. A short time later, she was called into the store area to talk with a man about a “help wanted” sign. After laying her bank bag on the desk and walking into the store area to talk with this man, she noticed him “looking at something,” became suspicious, walked into her office, and discovered that money she had placed in the bank bag was missing. She then ran outside and saw three of the four men driving away, leaving one suspect behind. After the trial of the present case, Grant was convicted on the charge of robbery by sudden snatching in the Baldwin County case. That conviction, however, was reversed on appeal. Grant v. State, 226 Ga. App. 506 (486 SE2d 717) (1997).

Grant argues that because his conviction for the similar crime was reversed, evidence of that crime was inadmissible in the earlier trial of the charge in this case. We do not agree. Evidence of similar transactions may be admitted if the State affirmatively shows (1) that the evidence serves an appropriate purpose; (2) the accused committed the other offense; and (3) a sufficient connection between the similar offense and the offense for which the accused is being tried “such that proof of the former tends to prove the latter. [Cit.]” Howard v. State, 220 Ga. App. 267, 269 (469 SE2d 396) (1996). The trial court admitted evidence of the Baldwin County incident for the purpose of showing identity and Grant’s modus operandi, clearly appropriate purposes for the admission of similar transaction evidence. Luke v. State, 222 Ga. App. 203, 207 (474 SE2d 49) (1996). The victims of the Baldwin County incident unequivocally testified that Grant participated in the incident, and the relatively short time period between the incidents as well as their similarities unquestionably shows a connection between the two offenses such that proof of the Baldwin County offense proved commission of the Peach County offense. “The connecting thread pervading the two offenses is a corresponding course of conduct and intent or bent of mind which is sufficient to justify the admission of the similar transaction evidence.” Howard, supra at 269.

Evidence of the Baldwin County incident was therefore clearly admissible as a similar transaction, and the fact that Grant’s conviction in the Baldwin County incident was reversed does not require reversal here. It is well-settled that a prior offense need not result in a conviction to be admissible as a similar transaction. See, e.g., Howard, supra at 269. It follows that a reversal of a conviction need not necessarily render the facts underlying the conviction inadmissible as a similar transaction.

The Baldwin County case was reversed on a very narrow ground: the State’s failure to show that the victim was aware, at the time of the theft, that anything was being taken, as required by OCGA § 16-8-40. Grant, supra at 507. No question was raised in that appeal concerning Grant’s identity or the method he used to commit the crime. Also, this is not a case in which the issues of Grant’s intent or identity as the perpetrator were resolved in his favor by a prior acquittal, which would have barred introduction of evidence concerning those issues. See Salcedo v. State, 258 Ga. 870 (376 SE2d 360) (1989); Lucas v. State, 178 Ga. App. 150 (342 SE2d 377) (1986). It is true that the prior incident differed from the one for which Grant was tried in Peach County, in that the victims in the Baldwin County trial did not know, contemporaneously with the theft, that money was being taken from the store. But a prior transaction need not be identical to the one being prosecuted to be admissible. See, e.g., Woolfolk v. State, 202 Ga. App. 59, 61 (4) (413 SE2d 242) (1991).

The similarities between the prior incident and the present case are inescapable; within a relatively short period of time, Grant and three other men walked into two stores and stole money from both stores while diverting or attempting to divert the attention of store employees. And in each case, one man was left behind by the other three. We find no error in the admission of the similar transaction evidence. >j

3. Grant argues that he was denied effective assistance of counsel, basing this contention on several aspects of trial counsel’s performance. To prevail on a claim of ineffectiveness of counsel, an appellant must show that counsel’s performance was deficient and that this deficient performance prejudiced his defense. See, e.g., Elrod v. State, 222 Ga. App. 704, 707 (3) (475 SE2d 710) (1996). We find neither deficient performance by trial counsel nor prejudice to Grant’s defense.

Grant contends that his trial counsel failed to meet with him often enough and failed to discuss the similar transaction evidence with him. We find no merit in these claims. Although Grant disagreed, trial counsel testified during the hearing on Grant’s motion for new trial that he met with Grant four times before trial for approximately 45 minutes each visit. Defense counsel also met with the State’s counsel to discuss the case, copied the State’s file, discussed the case with Grant, and traveled to a parole hearing in another county to obtain information concerning the similar transaction evidence. The amount of time defense counsel spent with Grant “is not determinative of whether counsel rendered ineffective assistance.” (Citations and punctuation omitted.) Id. at 708. After reviewing trial counsel’s testimony concerning his trial preparation, “[w]e fail to see a reasonable probability that but for counsel’s failure to discuss the case further with [Grant], the trial’s outcome would have been different.” Id.

Decided April 8,1999

Reconsideration denied May 5,1999

L. Elizabeth Lane, for appellant.

Charles H. Weston, District Attorney, Wayne G. Tillis, Howard Z. Simms, Assistant District Attorneys, for appellee.

Grant also argues, as he did during the hearing on his motion for new trial, that his counsel failed to communicate the State’s plea offer to him. But trial counsel testified unequivocally that he did communicate this offer. The issue of witness credibility was a matter within the trial court’s discretion. See, e.g., Randolph v. State, 225 Ga. App. 324 (484 SE2d 1) (1997). The trial court was thus authorized to believe the testimony of trial counsel over that of Grant.

We find no merit in Grant’s claim that trial counsel inadequately cross-examined the victim. Counsel testified that he attempted to show, during cross-examination, inconsistencies between the victim’s direct testimony and her written statement but that he did not wish to speak in a harsh tone because this “extremely credible” witness also was “frail.” Trial counsel’s method of cross-examining the victim was clearly a matter of trial strategy, which did “not equate with ineffective assistance of counsel.” (Citations and punctuation omitted.) Brown v. State, 225 Ga. App. 49, 50 (1) (a) (483 SE2d 318) (1997). We have examined Grant’s remaining arguments concerning his ineffectiveness claim and find them to be without merit. The trial court did not err in denying Grant’s motion for new trial.

Judgment affirmed.

Pope, P. J, and Senior Appellate Judge Harold R. Banke concur.


author: Andrews, Judge.

text:
    A99A0348.
    BLACKWELL v. THE STATE.
    (516 SE2d 787)
   Andrews, Judge.

Grady Blackwell pled guilty to three counts of possession of cocaine with intent to distribute and one count of trafficking in cocaine. The State filed a Notice of Recidivism pursuant to OCGA § 17-10-7 (c), and the court accepted four of the predicate offenses, two convictions for possession of a controlled substance, one conviction for possession with intent to distribute cocaine, and one conviction for criminal attempt to obtain a controlled substance. The court stated that it was sentencing Blackwell under both OCGA §§ 16-13-30 (d) and 17-10-7 (c).

Blackwell claims on appeal that the court erred in sentencing him under both these Code sections because OCGA § 16-13-30 (d) prohibits the court from sentencing him under OCGA § 17-10-7 (c). We disagree.

OCGA § 17-10-7 (c) provides that anyone who has been convicted of three prior felonies must, after being convicted of a subsequent offense, serve the maximum time provided for in his sentence and will not be eligible for parole until he has served the maximum time.

OCGA § 16-13-30 (d) provides that anyone convicted of manufacturing, selling, or possessing with intent to distribute a controlled substance as specified in subsection (b) is guilty of a felony and shall be sentenced to not less than five years nor more than thirty years. Upon a second or subsequent conviction, he shall be sentenced to not less than ten years nor more than forty years. This Code section goes on to state: “The provisions of subsection (a) of Code Section 17-10-7 shall not apply to a sentence imposed for a second such offense; provided, however, that the remaining provisions of Code Section 17-10-7 shall apply for any subsequent offense.” OCGA § 16-13-30 (d).

Here, the court did not sentence Blackwell under OCGA § 17-10-7 (a), it sentenced him under OCGA § 17-10-7 (c). Nevertheless, Blackwell argues that OCGA § 16-13-30 (d) should be interpreted as providing for the remaining sections to apply only to offenses subsequent to the second offense.

The statute clearly states that only the provisions of subsection (a) shall not apply to a sentence imposed for a second such offense and also specifically provides that the remaining provisions of Code § 17-10-7 shall apply for any subsequent offense. A well-established canon of statutory construction, inclusio unius, exclusio alterius, provides that the inclusion of one implies the exclusion of others. See, e.g., O’Melveny & Myers v. Fed. Deposit Ins. Corp., 512 U. S. 79, 86 (114 SC 2048, 2054, 129 LE2d 67) (1994); United States v. Koonce, 991 F2d 693, 698 (11th Cir. 1993) (“The canon of statutory construction that the inclusion of one implies the exclusion of others is well-established.”).

Applying this rule to OCGA § 16-13-30 (d), we conclude that had the legislature intended for the remaining sections to apply only to offenses subsequent to the second offense, it would not have singled out subsection (a), but would have provided that OCGA § 17-10-7 in its entirety would not apply to a second offense under OCGA § 16-13-30 (b).

Decided April 23,1999

Reconsideration denied May 5,1999

King, King & Jones, David H. Jones, Bernard S. Brody, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Tammi R. Simpson, Assistant District Attorneys, for appellee.

Therefore, we interpret OCGA § 16-13-30 (d) as providing that although the court may not sentence second time offenders under both OCGA §§ 16-13-30 (d) and 17-10-7 (a), it may sentence second time offenders under both OCGA § 16-13-30 (d) and any remaining provisions of OCGA § 17-10-7. Thus, even assuming this was just Blackwell’s second offense under OCGA § 16-13-30 (b), the trial court was not prohibited from sentencing him under both OCGA §§ 16-13-30 (d) and 17-10-7 (c). There was no error.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

       Subsection (a) of OCGA § 17-10-7 states that anyone committing a second felony punishable by confinement in a penal institution shall be sentenced to the longest period of time prescribed for the punishment of that offense unless the trial judge, in his discretion, probates or suspends the maximum sentence.

       Blackwell claims this was only his second offense of possession with intent to distribute.


text:
    A99A0258.
    BICKLEY v. THE STATE.
    (517 SE2d 363)
   Andrews, Judge.

Wilson Reginald Bickley appeals from the judgment entered after he was convicted of rape, cruelty to children, burglary, and aggravated assault. Bickley claims on appeal that the trial court erred in denying his Batson challenge and in failing to hold a Stovall v. Denno, 388 U. S. 293 (87 SC 1967, 18 LE2d 1199) (1967) hearing after a similar transaction witness identified him in court. We find no reversible error and affirm.

1. First, Bickley contends the trial court failed to follow the correct procedure after he challenged the State’s peremptory strike of the only African-American male in the jury pool. Bickley does not contend the State violated Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) by using the peremptory strike against the prospective juror, only that the trial court failed to follow the correct procedure. Bickley makes no argument in support of this contention, merely stating that “[t]he specific steps that the trial Court was supposed to go through in each of these challenges was not done.” Bickley then cites to numerous pages in the transcript. Bickley also does not cite to any authority in support of this claim of error.

In any event, there was no error. The State gave a racially neutral reason for striking the juror. The juror stated that he had a general distrust of the criminal justice system. Further questioning revealed that the juror had several friends who had dealings with the police and he believed they were treated unfairly. The court correctly found this was a sufficiently race-neutral reason for the strike. Jones v. State, 226 Ga. App. 428, 430 (487 SE2d 62) (1997).

2. Bickley also argues the trial court erred in not granting his motion for a Stovall v. Denno hearing after one of the similar transaction witnesses identified him as the man who raped her in 1993. After this witness’s testimony, defense counsel requested a hearing on the reliability of the in-court identification. Bickley contends the request for a hearing should have been granted because the witness was unable to pick him out of a photographic lineup and did not initially identify him at the previous trial.

The court refused the request for a hearing at that time, pointing out that since the witness had already testified, counsel could cross-examine her on her previous identification. Nevertheless, after the jury left the courtroom, the court allowed defense counsel to make his argument as to why he was “troubled by” the in-court identification. The court pointed out that counsel had presented no evidence whatsoever that the victim had not identified Bickley at the previous trial; however, the court stated it would look at the transcript of the previous trial if counsel would produce it.

The record shows that the transcript was given to the trial judge during a recess. Bickley does not point to, nor do we find, any further mention of this issue during the trial. Moreover, defense counsel did not recall the witness, although the court had granted permission to him to do so. Therefore, we must presume that the trial court read the transcript of the previous trial, discussed it with counsel and counsel agreed that the witness had identified Bickley at the previous trial as the man who raped her.

Thus, Bickley can show no harm arising from the trial court’s initial refusal to hold a Stovall v. Denno hearing. This enumeration of error is without merit.

Decided May 5,1999.

Allen & Barber, W. Keith Barber, for appellant.

Patrick H. Head, District Attorney, Frank R. Cox, Nancy I. Jordan, Debra H. Bernes, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

       Bickley also claims the trial court did not follow the proper procedure in denying the State’s Batson challenges. Because he can show no harm as a result of this claimed error, there is nothing for us to review. Mozier v. State, 207 Ga. App. 264, 268 (427 SE2d 551) (1993).

       However, in response to defense counsel's question on cross-examination, the witness stated that in the previous trial she left the stand after testifying, but was then called back to the stand and identified Bickley as the man who raped her.