text:
    77514.
    MONTGOMERY et al. v. CITY OF SYLVANIA.
    (376 SE2d 403)
   Birdsong, Chief Judge.

Condemnation. Faye and R. A. Montgomery appeal from the grant of summary judgment to the City of Sylvania. The Montgomerys are the owners of lot 16 in the Sylvan Heights subdivision in Sylvania. They purchased their home on June 6, 1980. An employee of the City stated that he installed an electrical transmission line across the corner of the Montgomerys’ lot in the summer of 1977, before the Montgomerys purchased it. The line was erected to provide electricity to Perry and Vendora Cobb’s home. The Cobbs purchased their land in July of 1977. The house on the Cobbs’ land was built in 1977.

All lots in the Sylvan Heights subdivision have a dedicated five feet easement across the backside of the lot for installation of electrical utilities. The City’s electrical transmission line complained of in this action is one which extends across the southwest corner of the lot, and not across the backside easement. The electric line enters the Montgomery property on the west side approximately 15 feet north of the southwest corner and exits the property 35 feet east of the southwest corner on the backside of the lot.

Although the City’s employees stated they installed the line in the summer of 1977, Faye Montgomery stated in her deposition that there was no electrical transmission line across her property when she and her husband purchased it in 1980. Later, she revised her testimony to say that there was an electrical line across the five feet easement across the backside of their property when they moved in, but this last line was installed without notice to or approval by them. The City admits that it upgraded the line across the Montgomery property “a couple of years ago” (1986) to add “two more lines” to provide “three phase” current at a shopping center. Also, the local television cable operator hung his line from the same electrical transmission poles.

In July of 1987, Mrs. Montgomery directed a letter to the City Manager of Sylvania with a bill for $14,000 “for the rental of property for the use of utility lines” crossing her property. She advised the City she was willing to settle the account if the City paid her $75 for damage done to her VCR by a power surge and the City would remove “all utility lines from [her] property that service other residents other than [the] Montgomery home.” The City filed this condemnation action and requested appointment of a special master to determine the value of the easement across the Montgomery property. The Montgomerys filed a counterclaim and prayed that the court require the City “to remove the telephone line and cable T.V. line from Defendant’s property.” The special master determined that the value of the condemned property easement was $390.30. The trial court granted summary judgment for the City, and the Montgomerys have filed this appeal. Held:

Appellants enumerate but two errors: (1) “Appellants have been denied their rights of appeal.” (2) Appellants have not had an opportunity to have a hearing on their Motion to Set Aside the Taking. ...”

1. We find many bases for finding no reversible error. First, appellants’ argument and citation of authority section in his brief consist of two lines: “Appellants contend that they have been denied their rights of appeal and to have judicial review of the Order of Condemnation.” The principal purpose of argument is to provide guidance to this court on the basis for a claim of error and for citations of authority which tend to support appellant’s allegation of error. See Craft v. Hosp. Auth. of Hall County, 173 Ga. App. 444 (1) (326 SE2d 590). A mere recital, or repetition, of the enumerated error is not argument. Craft, supra; Hartford Accident &c. Co. v. Taylor, 144 Ga. App. 64, 66 (240 SE2d 575); Summerfield v. Decinque, 143 Ga. App. 351, 352 (238 SE2d 712); Cochran v. Baxter, 142 Ga. App. 546, 547 (236 SE2d 528). Because there is no argument or citation of authority in the brief, all enumerations are abandoned. Craft, supra; Taylor, supra; Summerfield, supra.

Secondly, any claim that appellants were denied their “rights of appeal” is sophistry, as they are presently participating in their “rights of appeal.” Further, any allegation of error because of a lack of hearing on their motion to set aside is due solely to their failure to request oral hearing. The motion was filed by counsel but contains no rule nisi or request for oral hearing. The Uniform Rules provide that motions “shall be decided by the court without oral hearing” unless requested. Rule 6.3. The record before us shows no request was ever submitted, thus there is no error. Cherry v. Coast House, Ltd., 257 Ga. 403 (1) (359 SE2d 904); Dallas Blue Haven Pools v. Taslimi, 256 Ga. 739 (354 SE2d 160); Kelley v. First Franklin Fin. Corp., 256 Ga. 622, 623-624 (351 SE2d 443).

2. The only relief specifically prayed for by appellants was for removal of the telephone and television lines from their property. Hence, appellants have been compensated for the taking of their property and they do not contest the amount of the award. They seek only the removal of the offending transmission line.

There is a dispute as to when the electrical transmission line was installed over appellants’ property. The City presented conclusive evidence that the original electrical line was installed to provide electricity for a home constructed in 1977 and appellants did not purchase their property until 1980. It is general law that a subsequent purchaser of land takes his title subject to the servitudes then existing against the property. Duffield v. DeKalb County, 242 Ga. 432, 436 (4) (249 SE2d 235); Georgia Power Co. v. Kelly, 182 Ga. 33, 37 (184 SE 861). However, as to this point, Mrs. Montgomery states that the line which cut across the corner of her lot was not there when the property was purchased. Thus, this matter is at issue and must be settled by a jury if it is determined to be material.

However, it is not contested that at sometime in 1987 the Montgomerys became aware of the electric transmission line and the television cable placed thereon and demanded compensation or removal. Mr. Montgomery testified that he cannot say whether the line was there when they purchased the property but he saw it in “April” of 1977 when the City was erecting a transformer “back there” and he lost power to his house. He asked the City to pay for the damage to his VCR and they refused. He also stated that the City requested his permission to cut down a cherry tree when they were installing the additional power lines to the shopping center. There is evidence that the additional power lines were installed “a couple of years ago” (1986).

Property put to a public use (electrical transmission line), “ ‘may . . . be put to all customary uses within the definition of the use.’ ” MARTA v. Datry, 235 Ga. 568, 575 (220 SE2d 905); Franklin v. Bd. of Lights &c. Works, 212 Ga. 757 (1) (95 SE2d 685). Thus, once the original easement is effective, additional electrical lines may be placed on the poles. Further, the Federal Cable Communications Policy Act of 1984 provided that any television cable franchise shall “authorize the construction of a cable system over public rights-of-way, and through easements, which is within the area to be served by the cable system and which have been dedicated for compatible uses” with exceptions not here applicable. 57 USC § 541 (a) (2). Thus, a cable television franchise has a free ride to attach to existing easements with compatible uses and appellants have no viable complaint with reference to the placement of the television cable on an existing easement.

Appellants’ specific demand for removal of the transmission line would not be authorized if the landowner was aware of the existence of the transmission line for a sufficient period of time after construction to allow electrical service to begin. Georgia Power Co. v. Kelly, supra. Even a public utility, having the right of eminent domain, which knowingly takes land without utilizing a lawful method, is not estopped. Waldrop v. Ga. Power Co., 233 Ga. 851, 852 (1) (213 SE2d 847). “The operation of the rule has for its basis more than ordinary estoppel. It works for the good of the public. A public utility company has the right to acquire land necessary for its corporate purpose. Such may be acquired by purchase, by consent of the owner, or by condemnation, but cannot lawfully be taken against the consent of the owner without compensation. The right to the owner, by whatever method the land is taken, is compensation, which right he may expressly or by inaction waive. . . . Where electric and power lines are established that furnish light and power to the public, all alike . . . become dependent on the service for their individual and general welfare. If a landowner stands by and permits, without legal objection, a public utility company to appropriate his land to its necessary corporate use until such becomes a necessary and constituent part of its service to the public, and the rights of the public intervene to such extent that to oust the company would interrupt the service and deny it to the public, the landowner, not for the protection so much of the company but for the benefit of the public, will be estopped from recovering the land in ejectment or from enjoining its use for the service, but will, if he moves in time, be remitted to an appropriate action for damages. ... If the land be taken without his consent and without condemnation, a right of action accrues to him against the company. His measure of damage and the amount of his award is the same. . . .” Id. at 852-853.

Decided November 16, 1988 —

Rehearing denied December 5, 1988.

Grady K. Reddick, for appellants.

Hugh T. Hunter, for appellee.

Mr. Montgomery became aware of the transmission line at least in 1986 and certainly no later than April of 1987, by his own admission. A claim was asserted by Mrs. Montgomery against the City in July 1987, for damages or removal of the line. The trial court was authorized to find that the action prayed for, removal of the electrical transmission line, which had been providing electrical service to individuals since 1977 and to a shopping center since 1986, would not be subject to removal as a matter of law but the property owner would be entitled to damages. Wiggins v. Southern Bell Tel. &c. Co., 245 Ga. 526 (3) (266 SE2d 148). The appellants have been awarded a sum determined to be the value of the property right taken and have not contested that amount. The trial court did not err in granting summary judgment to appellee based on the relief prayed for.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    77574.
    O’KEEFE v. THE STATE.
    (376 SE2d 406)
   Birdsong, Chief Judge.

The appellant, Donald J. O’Keefe, brings this appeal from his conviction for trafficking in marijuana. On the evening of October 21, 1986, Deputy Sheriffs Brooks Lansing and Jimmy Howell, members of the Whitfield County DUI Task Force, were observing northbound traffic on 1-75, when Lansing saw O’Keefe’s vehicle come by their location and he thought the car crossed over the centerline. Howell saw O’Keefe’s car cross over the line on the right side as it was going around the curve. Howell testified that he told Lansing: “I believe we need to go check that one. I believe it’s a DUI.” The officers followed O’Keefe’s car and saw it cross over the centerline twice. Howell stated: “all of a sudden he just swerved over one lane and back in the other lane; and we actually thought that Mr. O’Keefe was driving like he’d been drinking. . . .’’As Lansing left his car, O’Keefe exited his vehicle hollering: “4-1 New York.” Officer Lansing did not understand what O’Keefe was saying and asked him if he was going to New York and O’Keefe explained that he was telling him the score of the World Series.

Lansing testified that O’Keefe “was very nervous. He kept fidgeting around. . . . He was waving his arms somewhat as he was talking. ... As Officer Howell approached the car, he got even more nervous. I later walked up to the car, and we smelled some type of odor. I could not determine whether it was alcohol or not. It was a strange odor. I really never had any contact with it before.” They asked O’Keefe where he was going and he could not give them a location other than outside of Chattanooga to a town he did not know the name of — but was near a military academy. Howell observed that “[t]here were too many suspicious things about him and the car.” He saw tire-tools and clothes in the back seat, “it just seemed out of the way.” Officer Howell smelled the strange odor and thought it might be alcohol. They gave O’Keefe an “Aleo-Sensor” test and it was “zero/zero.” O’Keefe was placed under arrest for improper lane usage and was told they were going to take him to the Correctional Center and he could made bond there. Lansing said that at first O’Keefe refused and requested that he be given a ticket right then. They asked for permission to search his car and he refused. Another officer had been called and arrived on the scene. The officers directed O’Keefe to follow them to the Correctional Center. When they were leaving the scene, Officer Lansing called the radio dispatcher to have a drug dog at the Center to search around the car.

It took the officers approximately 15 minutes to arrive at the Correctional Center. Officer Howell took O’Keefe into the rear portion of the jail and realized that he did not have his ticket book and had to go to his car to get it. When he returned, he made out the ticket and turned O’Keefe over to the Booking Officer. The Booking Department as a practice takes a bond from the offender and turns him over to the Identification Section. The officer in charge of ID said she was on the phone, long-distance, when O’Keefe came in; after she finished ' her call, she started processing O’Keefe. Because the trial judge requires a “history” of a traffic offender in cases brought before him, a personal history statement was taken, then a photograph, and finally O’Keefe was fingerprinted. She testified this was routine procedure for minor traffic violators who were non-residents. Officer Howell testified that after he made out the traffic ticket and turned O’Keefe over to Booking, he walked out of the building and was told that the drug dog had alerted on O’Keefe’s car.

Officer Lansing was assisted in making out his affidavit and making a request for a search warrant. A magistrate was called to the Correctional Center and swore the officers, heard the evidence, and issued a search warrant for O’Keefe’s car. Officer Howell served O’Keefe, who was still in the Center, with the warrant. He took O’Keefe’s keys, opened the trunk of the car, and nine pillowcases full of a leafy green material was discovered. Subsequent examination identified the substance as marijuana. O’Keefe appeals from his conviction before the judge without a jury. Held:

1. Appellant alleges the initial stop of the appellant’s car was “a pretextual stop based upon an impermissible ‘drug courier profile.’ ” Evidence was introduced to show that the Federal Drug Enforcement Administration had initiated a plan called “Operation Pipeline” and sponsored a seminar in Georgia which was attended by law enforcement personnel. The purpose of the operation was to deploy trained and reinforced patrols along 1-75 and 1-95 in Georgia specifically targeting drug and narcotics “mules” transporting drugs from Florida to northern distribution points. A drug courier profile was formulated and included such characteristics as northbound cars with Florida license plates, particularly those with rental plates (bearing the letter “Z”). Another characteristic was to look at the back seat of the car for items usually carried in the trunk. Officers were told not to stop a car solely on the use of this profile. In Georgia, the State Patrol initiated “Operation Nighthawk” to perform surveillance on 1-75 and 1-95. Officers Lansing and Howell had attended a lecture given by Trooper Mickey Little of the Georgia State Patrol on the drug courier profile for automobiles. The record of Trooper Little was admitted in evidence to show that after he attended a seminar on Operation Pipeline by the DEA, his percentage of Florida cars stopped for traffic violations increased dramatically. Appellant introduced evidence to show that Officers Lansing and Howell stopped three cars on the evening of October 21. All three cars had Florida license plates.

Officer Lansing stated this his primary purpose of being on patrol that evening was DUI, not drug interdiction. Although he saw the Florida tag before he stopped the vehicle, it was a traffic stop. The trial judge questioned Lansing on whether O’Keefe was stopped for a traffic offense, or because of any kind of profile or characteristics of a drug courier and he responded: “That was the reason of the initial stop, yes sir, was the Improper Lane Usage.” But the officer admitted he did not forget about the drug courier profile, and when he saw the Florida tag, the nervousness of the driver, the “junk” in the rear seat of his vehicle, his inability to tell them where he was going, and smelled the strange odor emanating from the car, he decided that he would have the car “sniffed” by a drug dog.

Howell admitted he was concerned when pulling over cars for traffic offenses when they had a Florida tag, because “somebody carrying quite a large bit of Cocaine or marijuana, there’s a possibility they could be armed and dangerous.” However, he was a member of the DUI Task Force, he was on DUI patrol and their primary purpose that night was “DUIs . . . not drug interdiction. . . . We actually felt like he was a DUI.”

Hence, there was evidence that both officers had been trained in Operation Nighthawk and use of the drug courier profile for cars. But both officers denied using the profile to stop O’Keefe’s car. Instead, they testified that the initial impetus to follow the car resulted from his crossing the traffic lanes and after following O’Keefe for one and one-half to two miles and observing him “swerve” over the centerline once and cross it twice, they “felt like he was a DUI.” The stop of O’Keefe’s vehicle was authorized if the officers saw a traffic offense committed in their presence. Hartley v. State, 159 Ga. App. 157, 158 (282 SE2d 684); Kilgore v. State, 158 Ga. App. 55 (1) (279 SE2d 239). The evidence was sufficient for a rational trier of fact to find that the appellant committed the offense of improper lane usage beyond a reasonable doubt. Eisenberger v. State, 177 Ga. App. 673, 674 (1) (340 SE2d 232). At issue is whether the officer’s testimony was credible or whether the circumstantial evidence as to the drug courier profile predominated.

“On appeal from the denial of a motion to suppress evidence obtained through a search that the defendant contends was illegal, ‘the trial court’s decision on questions of fact and credibility . . . must be accepted unless clearly erroneous.’ ” State v. Harris, 246 Ga. 759 (1) (272 SE2d 719). The trial court’s findings of fact and credibility are not clearly erroneous. This enumeration is without merit.

2. It is alleged that it was error to deny the motion to suppress “since no reasonable or articulable suspicion existed for such detention” of the appellant and his automobile. We have found no illegal detention of appellant or his automobile. The initial stop was made because of observation of a traffic offense committed by O’Keefe. Officers Lansing and Howell testified as to their routine procedure in stopping and arresting out-of-state drivers for traffic offenses. Both officers said that they routinely took out-of-state offenders to the Correctional Center, booked them, let them post bond, and released them. Officer Lansing testified that “department policy dictates that anytime an out-of-state motorist is written a citation in Whitfield County he is to be issued the citation there at the Center ... he will post a cash bond there, or have a property signed — bond signed by a bondsman; and then [is] free to leave there from the Center.” (Emphasis supplied.) This policy was given to him by “a superior officer.” Officer Howell said the only reason for taking O’Keefe to the Correctional Center was to require him to post bond. He always wrote the ticket at the station, then turned the offender over to Booking. Bond is posted and Booking turns the man over to the ID section where a history is taken, and the offender is photographed and fingerprinted. When Howell finished making out the ticket, he had O’Keefe sign it and he left O’Keefe in Booking and walked away. As he left the station, he was told that the drug detection dog had alerted on O’Keefe’s car. He told no one to delay the booking procedure to permit the dog to search. The personnel in Booking and ID stated that they were not asked to delay processing O’Keefe until his car could be searched by the dog.

Hence, there was no detention of O’Keefe or his automobile except to issue him a traffic citation and process him through Booking and ID. He was required to drive his car to the Correctional Center in accordance with standard procedure for booking out-of-state motorists and requiring them to post bond. The officers are not permitted to take a bond from a traffic offender and bond is necessary to assure appearance of out-of-state offenders for trial, or, the traffic offender may forfeit his bond by failing to appear for trial.

Appellant contends this procedure is a subterfuge for detaining a suspected drug courier’s automobile until it can be “sniffed” by a drug detection dog. Appellant introduced a copy of an Executive Order, signed by Governor Busbee in 1979 in which he agreed for the State of Georgia to become a member of the Nonresident Violator Compact of 1977 (Compact), in which out-of-state motorists who are traffic offenders are permitted to proceed on their way, without posting bond or depositing their license. Appellant argues that this “Compact” was in effect between member states at the time of O’Keefe’s arrest and “[t]he ‘Compact’ mandates that the police officers ‘shall not . . . require the motorist to post collateral to secure appearance’ for the charge of improper lane use. ...” We do not agree with appellant’s interpretation of the Compact as a “mandate.”

There are several code sections which apply to this issue. In OCGA § 40-13-53 (a), the officer who issues a traffic citation — except for certain listed offenses not here applicable, “shall permit such person to be released upon being served with a citation and complaint and agreeing to appear . . . unless such officer has reasonable and probable grounds to believe that the person will not obey such citation and agreement to appear.” This code section is directed to officers dealing with persons resident in Georgia and does not attempt to cover out-of-state traffic offenders, per se. Of course, it can be argued that the fact that a traffic offender resides out-of-state provides “reasonable and probable grounds to believe that the person will not obey such citation. . . In addition, our Code also provides that the officer issuing a traffic citation “in lieu of being immediately brought before the proper judicial officer to enter into a formal recognizance . . . may, upon agreement with the arresting officer, deposit his chauffeur’s or driver’s license with the officer in lieu of bail. . . .” OCGA § 17-6-11 (a). Subsection (c) of this statute authorizes the public safety commissioner to promulgate “reasonable rules and regulations to carry out the purposes of this Code section and to establish agreements with other states whereby a valid license from that state may be accepted for purposes of this Code section.” A review of the Official Rules and Regulations of the Public Safety Department reveals that this section has not been implemented. Further, the interstate Compact cites the procedure where “the motorist’s driver’s license is deposited as collateral” and emphasized this practice “is viewed with disfavor. . . .” Additionally, the officers in the instant case did not “agree” to take O’Keefe’s license as collateral, but cited standard procedure required the out-of-state traffic offender be taken to the Correctional Center and bonded.

Such interstate agreement is also permitted by OCGA § 40-2-91, but that type agreement “shall be subject to confirmation by . . . the General Assembly. . . .” OCGA § 40-2-92. If the agreement is entered into when the General Assembly is not in session, the Compact “shall be submitted by the [Public Safety] commissioner to the General Assembly not later than the tenth day of its next session” for confirmation or rejection. OCGA § 40-2-93. This executive order was signed in 1979 and the Georgia Laws for 1980 and 1981 do not reveal any action taken by the General Assembly on this agreement. The Whitfield County magistrate had never heard of it and the officers involved had never followed the policy enunciated in the Compact. The evidence submitted to the court established the officers in this instance followed their routine procedure for booking and bonding an out-of-state traffic offender, and we find no unlawful detention of the appellant or his automobile.

3. The last enumeration of error alleges the “protracted bonding procedures . . . was a pretext to subject Defendant and his automobile to an unlawful search.” Division 2, hereinabove, answers that portion of this enumeration claiming the bonding procedure was pretextual. In such matters, which were denied by the officers participating in the arrest and booking of O’Keefe, the credibility of the officers, their explanation, and determination of the facts are issues for the trial court in the first instance, and on appeal “we are bound to accept the trial court’s decision on questions of fact and credibility at a suppression hearing unless clearly erroneous.” Williams v. State, 256 Ga. 609, 610 (351 SE2d 454). We have reviewed the evidence and the trial court’s ruling, and do not find the ruling to be clearly erroneous. See Fortner v. State, 257 Ga. 46, 47 (354 SE2d 146).

Furthermore, we have found no “unlawful search.” While O’Keefe was posting bond and going through the identification procedure, the drug detection dog arrived. His handler led him around the outside of the car and he “alerted” at the area where the seam is between the trunk lid and the car body. The magistrate was called and Officer Lansing submitted his suspicions, related above, to the magistrate along with the evidence of the trained drug detection dog alerting on the area near the trunk of O’Keefe’s car. There was no physical intrusion by the dog or the handler into any portion of the car. The warrant was issued and 192 pounds of marijuana were found in the trunk of the car. Was the use of the drug detection dog, sniffing around the outside of O’Keefe’s car illegal, and if not, did it provide sufficient probable cause for a search warrant?

The U. S. Supreme Court has stated that “[gjiven the enforcement problems associated with the detection of narcotics trafficking and the minimal intrusion that a properly limited detention would entail, we conclude that the Fourth Amendment does not prohibit [the temporary] detention” of a traveler’s luggage for use of a trained drug detection dog. United States v. Place, 462 U. S. 696, 698 (103 SC 2637, 77 LE2d 110). “The public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit.” United States v. Mendenhall, 446 U. S. 544, 561 (100 SC 1870, 64 LE2d 497). The Supreme Court found “the canine sniff is sui. generis. . . . Therefore, we conclude that the particular course of investigation . . . exposure of respondent’s luggage, which was located in a public place, to a trained canine — did not constitute a ‘search’ within the meaning of the Fourth Amendment.” Place, supra at 707. Our own Supreme Court, in Bothwell v. State, 250 Ga. 573, 579 (300 SE2d 126), U. S. cert. den. 463 U. S. 1210, considered the sniff of a trained drug detection dog on a suspect’s luggage, and held that a passenger who has turned his luggage over to the airline “has no reasonable expectation of privacy in the air space surrounding the lug- " gage; and that the use of a canine’s enhanced olfactory sense to sniff for the presence of controlled substances in the luggage without opening the luggage does not constitute a search within the meaning of the Fourth Amendment.”

Although case precedent in Georgia is sparse on the use of a trained canine to sniff the exterior of a container, federal authorities on this issue are many. The following are in agreement that use of a trained drug detection dog to sniff the outside of a closed container is not a search within the proscription of the Fourth Amendment. United States v. Dicesare, 765 F2d 890, 897 (9th Cir. 1985); United States v. Waltzer, 682 F2d 370, 373 (2d Cir. 1982); United States v. MacDonald, 670 F2d 910 (5) (10th Cir. 1982); United States v. Johnson, 660 F2d 21 (1) (2nd Cir. 1981); United States v. Viera, 644 F2d 509 (1) (5th Cir. 1981); United States v. Goldstein, 635 F2d 356, 361 (5th Cir. 1981); United States v. Klein, 626 F2d 22 (5) (7th Cir. 1980).

We hold that use of a trained drug detection dog, in a location where he is entitled to be, to sniff the exterior of a container, is not an unreasonable search within the meaning of the Fourth Amendment of the U. S. Constitution or Art. I, Sec. I, Par. XIII, of the Georgia Constitution of 1983. Place, supra; Bothwell, supra. The dog in the instant appeal was in a place where he was authorized to be. The container, O’Keefe’s car, was not being unlawfully detained. The dog did not intrude into the interior of O’Keefe’s car. The area around O’Keefe’s car is not a area protected by the Fourth Amendment or Par. XIII of Art. I, Sec. I of the Georgia Constitution. The owner or driver of an automobile has no reasonable expectation of privacy in the airspace surrounding his car. The use by the officer of a canine’s enhanced (through training) olfactory sense, cannot convert a sniff of the air around the exterior of a car into an unreasonable search of the interior of the car.

It is accepted law that what one knowingly exposes to the public cannot be the subject of a claim of Fourth Amendment protection. Katz v. United States, 389 U. S. 347, 351 (88 SC 507, 19 LE2d 576). Hence, knowingly exposing the odor of marijuana to the public, in a public place, cannot be the subject of a Fourth Amendment claim. Here, someone placed marijuana in appellant’s car, presumably with full knowledge of its pungent odor and the fact that the identifiable odor of marijuana could emanate from the car and be detected outside the car. If the owner of marijuana does not desire to expose its odor to the public, then it is incumbent upon the owner to contain the odor within the car. In this instance, the odor of the marijuana did escape from the car and was detected outside the car, in an area where the drug detection dog was entitled to be, and where appellant had no reasonable expectation of privacy.

Odor as well as sight, hearing, taste or touch can be used in establishing probable cause. Berry v. State, 163 Ga. App. 705, 708 (294 SE2d 562). “ ‘If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.’ Johnson v. United States, 333 U. S. 10 (I) (68 SC 367, 92 LE 436).” Berry, supra at 708. This court has had more opportunities to deal with the odor of burning marijuana than with the odor of marijuana in its original state. “ ‘Although there is some controversy as to whether or not the odor of burning marijuana by itself supplies sufficient probable cause for a search or an arrest [cits.], all opinions of this court are in agreement that “it may be considered and may be a part of a totality of circumstances sufficient to validate one.” ’ State v. Medders, 153 Ga. App. 680, 681 (266 SE2d 331). Accord Dickson v. State, 124 Ga. App. 406 (184 SE2d 37); Rogers v. State, 131 Ga. App. 136 (3) (205 SE2d 901); Culpepper v. State, 132 Ga. App. 733 (1) (209 SE2d 18); Yawn v. State, 134 Ga. App. 77 (4) (213 SE2d 178).” Berry, supra. Here, the alert of the drug detection dog, the manner of driving of his car by the appellant, the strange odor detected coming from his car, his nervousness, fidgeting and waving his arms and shouting “4 to 1, New York” while being stopped for a traffic offense, and the presence of items usually carried in a trunk of a car which was located in the back seat, are all elements to be considered by the magistrate in determining probable cause to issue a search warrant. Of course, there is the practical perception that considering appellant’s erratic driving and his blood alcohol test being zero, if alcohol is not the cause of intoxication, that leaves drugs.

Decided November 18, 1988 —

Rehearing denied December 5, 1988

Minor, Bell & Neal, Rick L. Brown, for appellant.

Jack O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.

In an appellate determination of whether a magistrate had probable cause to issue a search warrant, the Supreme Court has said that a magistrate’s determination of probable cause should be paid great deference. Illinois v. Gates, 462 U. S. 213, 236 (103 SC 2317, 76 LE2d 527). And, our appellate standard is a determination of whether the issuing magistrate had a “substantial basis for . . . concluding] that a search would uncover evidence of wrongdoing. . . .” Id. at 236. We conclude that he did have such basis.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: Banke, Presiding Judge.

text:
    77605.
    BREEDLOVE v. THE STATE.
    (376 SE2d 222)
   Banke, Presiding Judge.

The appellant was convicted of violating the Georgia Controlled Substances Act by possessing cocaine with intent to distribute it. He contends on appeal that the evidence was insufficient to establish that he was in fact in possession of the contraband in question and that the trial court erred in instructing the jury not to concern themselves about the guilt or innocence of two co-indictees who had pled guilty.

The cocaine was seized from an automobile which was being driven by the appellant but which was also occupied by four others, three of whom were seated in the back. The police stopped and searched the vehicle based on an informant’s tip, and the search resulted in the seizure of seven separate “pieces” or “rocks” of cocaine, weighing a total of 9.3 grams, from atop and under the back seat. All five occupants were charged with possessing this contraband. The two who pled guilty were among the three passengers who had been seated in the back. The remaining defendants, including appellant, were jointly tried and convicted. Held:

Decided November 21, 1988 —

Rehearing denied December 5, 1988.

Black & Black, Eugene C. Black, Jr., for appellant.

J. Brown Moseley, District Attorney, Robert G. Dunn III, Assistant District Attorney, for appellee.

1. Based on the fact that the cocaine was divided into seven separate “rocks” and on the testimony that the total amount seized was substantially greater than that normally associated with personal use, we hold that the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that the appellant was both aware of the presence of the contraband and constructively in possession of it. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). “Because the appellant was the driver of the car in which the contraband was found, an inference was authorized that he had possession of the cocaine. Robinson v. State, 175 Ga. App. 769, 772 (2) (334 SE2d 358) (1985). . . . Further, we pointed out in Robinson that the equal access doctrine does not apply where the defendants are alleged to have joint constructive possession of the contraband, as was the case here.” Howard v. State, 185 Ga. App. 215, 216 (2) (363 SE2d 621) (1987).

The fact that two of the occupants had pled guilty to the indictment does not necessarily defeat the inference that the appellant was in joint possession of the contraband with them, absent some indication that they or anyone else had claimed exclusive possession of it. Compare Shockley v. State, 166 Ga. App. 182 (303 SE2d 519) (1983); Braden v. State, 135 Ga. App. 827 (219 SE2d 479) (1975).

2. “As for the jury instruction, appellant waived [his] right to complain on appeal when the court asked whether there were any objections to the charge and [his] counsel responded that there were none. Howard v. State, 173 Ga. App. 585 (2) (327 SE2d 554) (1985).” Sharp v. State, 183 Ga. App. 641, 643 (4) (360 SE2d 50) (1987).

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


author: Deen, Presiding Judge.

text:
    77673.
    COHRAN v. HALDI et al. HALDI et al. v. COHRAN (two cases) JRG, INC. et al. v. COHRAN (two cases).
    77674, 77675.
    77676, 77677.
    (376 SE2d 416)
   Deen, Presiding Judge.

Cohran, appellant in Case No 77673 and appellee in Case Nos. 77674, 77675, 77676, and 77677, deeded two pieces of property to Glenville Haldi, appellee in Case No. 77673 and appellant in Case Nos. 77674 and 77675, and at the same time borrowed from him $10,000. Haldi asserts that Cohran came to him seeking money and offering a security interest in the properties, but that after he told Cohran that he (Haldi) preferred not to be involved in a mortgagee relationship, Cohran proposed to deed him the properties in return for $10,000 and an option to repurchase the land within 90 days for $15,000. Cohran, in contrast, contends that at the time of this transaction he was emotionally distraught by the death of his mother some six months previously and had asked Haldi to hold the property in trust for his (Cohran’s) two daughters, and that Haldi had taken advantage of his vulnerable state and defrauded him. Haldi categorically denies the foregoing allegations and alleges that the $10,000 came from a family-owned business, EOM, Inc., and that he had voluntarily, without consideration and against the wishes of principals of EOM, extended the repurchase agreement for two and one-half years, all the while urging Cohran to repurchase the property — particularly since, Haldi alleges, he knew Cohran had $25,000 in a safety deposit box. He further alleges that on other occasions Cohran borrowed or otherwise became indebted to him for $5,000 and smaller amounts.

Cohran sued Haldi (both individually and as a professional corporation) and other defendants, including, inter alias, JRG and EOM (appellants in Case Nos. 77676 and 77677), seeking to have the deeds cancelled and set aside, and also seeking an accounting, cancellation of an allegedly usurious loan, and punitive damages, attorney fees, and costs of litigation. Haldi counterclaimed for amounts totaling more than $9,000, plus interest, punitive damages, and attorney fees. He did not pray specifically for general damages. The remaining defendants answered, denying Cohran’s allegations; defendants/appellees JRG, Inc., John Haldi (Glenville Haldi’s brother and a principal in EOM), and Jerry Collins, d/b/a Collins Realty Co., sought costs, the reasonable rental value of the property, rents from the property less taxes and certain items attributable to the current owner, and an order requiring the current owner to be liable for any existing mortgages. Cohran unsuccessfully moved for directed verdict on a specific portion of the $9,000 sought by Haldi.

The jury directed that EOM be ordered to convey the property to Cohran and pay him $4,000 in attorney fees; it awarded $1,500 in attorney fees to Collins, $3,000 in attorney fees to JRG, $3,000 in attorney fees to John Haldi, and $25,000 in general damages to Glenville Haldi; and assessed the costs of the action against Cohran. EOM, Glenville Haldi, and Cohran filed motions for j.n.o.v. and new trial. A dispute over apportionment of the cost of preparing the transcript ensued, and ultimately Cohran’s motions were denied.

On appeal (Case No. 77673) Cohran enumerates as error the allegedly unauthorized pecuniary awards recited supra, together with the denial of his various motions, supra. Haldi et al. (Case Nos. 77674 and 77675) and JRG, Inc., et al. (Case Nos. 77676 and 77677) filed responsive briefs and cross-appeals. Haldi also moved that all the appeals be transferred to the Supreme Court on the ground that, since the case involved title to property and was therefore equitable, it was properly within the appellate jurisdiction of that tribunal.

Cohran moved for dismissal of the cross-appeals on the ground that they were untimely filed. All the appellees/cross-appellants responded to the motion by contending that the trial court’s judgment did not become final and appealable until September 4, 1987, and that their September 29 filings were made within the prescribed 30-day period thereafter; and, moreover, that Cohran had given them no notice of the filing of his appeal but that they had inadvertently discovered the notice of appeal while examining the record at the courthouse.

Errors enumerated by the cross-appellants (Case Nos. 77674, 77675, 77676, and 77677) are as follows: (1) the trial court erred in ten different ways (e.g., equity, standing, statute of limitation, attempts to change warranty deeds into second mortgages) when it denied their motions for directed verdict made at the close of the evidence; and (2) the trial court further erred in failing to grant judgment to the defendants (appellees/cross-appellants) requiring Cohran to pay any indebtedness on the subject property. Held:

1. We find no basis for granting Haldi’s motions that the cases be transferred to the Supreme Court on the basis that the action below was initially a complaint in equity. No equitable issues remaining in the cases in their present posture, we find that jurisdiction is properly in this court and therefore deny the motions. Constitution of Georgia, Art. VI, Sec. VI, Par. Ill; Art. VI, Sec. V, Par. III.

2. We find without merit Cohran’s enumerating as error the imposition upon him of damages, costs of litigation, etc. See, e.g., OCGA §§ 9-15-1 et seq.; 51-12-2.

Decided November 21, 1988 —

Rehearings denied December 2 and 5, 1988

Larry Cohran, pro se.

Glenville Haldi, pro se.

William L. Spearman, for JRD & EOM.

3. Likewise without merit is Cohran’s assignment of error to the trial court’s award of general damages to Haldi. Atlantic Coast Line R. Co. v. Thomas, 14 Ga. App. 619 (82 SE 299) (1914).

4. Scrutiny of the voluminous record reveals no merit in the parties’ remaining enumerations of error.

Judgments affirmed.

Carley and Sognier, JJ., concur in the judgments only.

       Cohran also filed motions to require defendants to share transcript costs, purportedly pursuant to a prior agreement; to vacate and set aside the judgment or to amend and clarify the judgment; and an amended motion for j.n.o.v. or in the alternative to amend the pleadings or to strike allegedly illegal portions of the verdict.

       There were, inter alia, allegations that Cohran had purported to improperly transfer the property to his wife in an allegedly fraudulent divorce action.


author: Beasley, Judge.

text:
    77355.
    SHOUSE v. THE STATE.
    (376 SE2d 911)
   Beasley, Judge.

Defendant’s notice of appeal, taken from a judgment entered on October 20, 1987, was filed on December 9. This of course, was not timely, OCGA § 5-6-38 (a). Upon filing, defendant contended below that he did not learn of the judgment until December 4, 1987, and requested permission to appeal out of time.

Under OCGA § 15-6-21 (c) the trial court was required to notify the attorney of the losing party of its decision on the motion. Pro se defendant should have been notified. If he was not, the failure would not extend the time for filing a notice of appeal. Robinson v. Kemp Motor Sales, 185 Ga. App. 492, 493 (364 SE2d 623) (1988). However, it could furnish a basis for the grant of an out-of-time appeal in that he was deprived of his right to appeal, which is of constitutional dimensions. Mobley v. State, 162 Ga. App. 23 (1) (288 SE2d 702) (1982); Lay v. State, 242 Ga. 225, fn. 1 (248 SE2d 611) (1978); Cunningham v. State, 232 Ga. 416 (207 SE2d 48) (1974). See dissent in Willis v. State, 186 Ga. App. 197, 197 (366 SE2d 778) (1988), approved by the Supreme Court in its order in Willis v. State (case no. 45592, issued Oct. 19, 1988).

The issue is whether defendant received notice and delayed taking action, in which case he has forfeited his right to appeal, or whether there was no timely notice, in which case either the judgment should be set aside and a new judgment entered from which a timely appeal might be taken or an out-of-time appeal should be considered. See Cambron v. Canal Ins. Co., 246 Ga. 147, 148 (1) (269 SE2d 426) (1980). See also dissent in Crawford v. Kroger Co., 183 Ga. App. 836, 837 (360 SE2d 274) (1987).

Decided December 2, 1988.

Harry Shouse, pro se.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

In any event, the docketing of the case in this Court is premature because the request for an out-of-time appeal has not been ruled upon by the trial court. The appeal is therefore dismissed and the case remanded for a determination whether defendant was notified as required under OCGA § 15-6-21 (c) and for such other action as deemed appropriate.

Appeal dismissed and case remanded.

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


author:
Birdsong, Chief Judge.
      Banke, Presiding Judge, Benham, Judge, Deen, Presiding Judge,

text:
    76721.
    FIELDS v. THE STATE.
    (376 SE2d 912)
   Birdsong, Chief Judge.

Willie F. Fields, appellant, brings this appeal from his conviction of possession of cocaine with intent to distribute. His appointed counsel has filed a motion to withdraw, pursuant to Anders v. California, 386 U. S. 738 (87 SC 1396, 18 LE2d 493). In accordance with Anders, counsel has filed a motion containing a brief in which he found no appealable error or anything which he considered arguably could support an appeal and has provided a copy of such brief to appellant. In addition, as required by Bethay v. State, 237 Ga. 625 (229 SE2d 406), we have thoroughly examined the record and transcript to determine independently if there are any meritorious errors of law. We are in agreement with appellate counsel that the points raised are not meritorious, and our examination discloses no error of any substance. Therefore, this court has granted counsel’s motion to withdraw.

James Thurman, an Albany, Georgia police officer, received information from a reliable confidential informant that a tall black male dressed in beige pants, shirt and shoes, with a brim hat, would be selling cocaine at a designated location. Four police officers in an unmarked police car went to that location and saw the appellant, dressed in beige pants, shoes, shirt and a brown straw hat. The officers pulled over by defendant and he dropped a handkerchief and started to walk away. He was detained by one officer and another officer retrieved the abandoned handkerchief. The handkerchief contained a matchbox containing suspected “rock cocaine.” The officer described the suspected substance as seven $10 pieces of rock cocaine, ten larger $25 pieces, and nine $50 pieces. A forensic chemist from the Georgia Crime Laboratory confirmed that the suspected substance was indeed cocaine. Three officers saw appellant drop the handkerchief and attempt to walk away. Appellant denies he dropped a handkerchief. He said he was drinking brandy and threw the bottle cap on the ground. He never saw a handkerchief and no officer picked up a handkerchief from the ground by his feet. The jury chose to believe the officers.

The evidence adduced at trial was sufficient to enable any rational trier of fact to find the existence of the offense alleged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Further, our independent examination of the record and transcript has revealed no error of law requiring reversal.

Upon consideration of the procedure required to be followed by Anders, supra, and Bethay, supra, this court has determined that justice is best served by the procedure adopted by the Georgia Supreme Court. “We now hold that in the future Anders motions will not be granted by this court. We conclude that the Anders motion is unduly burdensome in that it tends to force the court to assume the role of counsel for the appellant. Anders v. California, supra, provides a mechanism for withdrawal of appointed counsel at the appellate level in the event that the appeal would be frivolous, but it does not require such withdrawal. Further, the opinion of the United States Supreme Court does not intimate that an attorney should be subjected to discipline or even disapproval for filing a frivolous appeal in a criminal case. Ever since Griffin v. Illinois, 351 U. S. 12 (76 SC 585, 100 LE 891) (1956), a continuing line of cases has developed protection for the indigent defendant on his first appeal. Therefore, a defendant is entitled to review of any claim which might afford him relief. In this case, as in every other in which an Anders motion has been filed, this court has reviewed the entire record and transcript with very little assistance from counsel who is in a far better position to perceive error than is an appellate court looking at a cold record. We therefore find and now announce to the bar that the Anders motion will no longer be entertained in this court.” Huguley v. State, 253 Ga. 709, 710 (324 SE2d 729).

Judgment affirmed.

McMurray, P. J., Carley, Sognier, Pope and Beasley, JJ., concur. Been, P. J., Banke, P. J., and Benham, J., concur in part and dissent in part.

Banke, Presiding Judge,

concurring in part and dissenting in part.

An appointed counsel is obviously in a categorically different position from a retained counsel in deciding whether to pursue the representation of a criminal defendant on appeal. If retained counsel determines, in the exercise of his best professional judgment, that there are no arguably meritorious grounds for the appeal, he can simply advise his client of that fact, tell him he does not believe he can help him, and decline to undertake the representation. A court-appointed counsel, on the other hand, is stuck with the case unless and until he is relieved by the court.

Ethical Consideration 7-4 of the Code of Professional Responsibility specifies that “a lawyer is not justified in asserting a position in litigation that is frivolous.” 252 Ga. at 618. Ethical Consideration 7-5 specifies that a lawyer “may continue in the representation of his client even though his client has elected to pursue a course of conduct contrary to the advice of the lawyer so long as he does not thereby knowingly assist the client to engage in illegal conduct or to take a frivolous legal position.” Id. (Emphasis supplied.) Thus, by depriving appointed attorneys of any method by which they can withdraw from a criminal appeal for which they can discern no arguably meritorious grounds, we are in effect forcing them to engage in unethical conduct.

The argument that Anders motions force us to do too much work is, I believe, a specious one. A properly prepared Anders brief should provide the court with as much guidance in reviewing the record and transcript as would a properly prepared brief in any other appeal. In Simpson v. State, 183 Ga. App. 377, 378 (359 SE2d 13) (1987), we denied an Anders motion based, in part, on the inadequacy of the supporting brief, stating: “[C]ounsel should, at a minimum, endeavor to provide the court with a statement of the facts of the case, identifying the offense of which the defendant was convicted and summarizing the evidence presented at trial. Also, if any significant rulings were made by the court in connection with the proceedings, these should be identified.” Perhaps we simply have not insisted on strict compliance with the Anders procedure in this regard.

If we require appointed counsel in criminal cases to pursue appeals which they believe to be frivolous, the first straw at which they will grasp will undoubtedly be the so-called “general grounds.” In that event, there is absolutely no guarantee that we will not be placed in the same position that the Georgia Supreme Court sought to avoid in Huguley v. State, 253 Ga. 709 (324 SE2d 729) (1985) — i.e., having to undertake an examination of “the entire . . . transcript with very little assistance from counsel who is in a far better position to perceive error than is an appellate court looking at a cold record.”

Based on these considerations, I respectfully dissent to this court’s decision to eliminate any procedure by which an appointed counsel may withdraw from a criminal appeal which he believes is lacking in arguable merit. I concur, however, in the court’s decision to grant the Anders motion at issue in this case.

I am authorized to state that Presiding Judge Deen and Judge Benham join in this opinion.

Benham, Judge,

concurring in part and dissenting in part.

The majority decides today that not only will we deny this Anders motion, but that this court will no longer recognize Anders motions in any case. While I agree with the court’s denial of this Anders motion, I am substantially less confident in the majority’s approach to all future Anders motions; therefore, I dissent to raise a voice of caution.

Our present approach to Anders motions is set out in Bethay v. State, 237 Ga. 625 (229 SE2d 406) (1976): “Appointed counsel may withdraw from a case on appeal only upon compliance with the rules set out in Anders v. California, 386 U. S. 738 (87 SC 1396, 18 LE2d 493) (1967). Anders requires that appointed counsel accomplish the following: (1) submit to this court a request for permission to withdraw based upon counsel’s opinion that, after conscientious examination of the transcript and record he finds the appeal to be ‘wholly frivolous’; (2) accompany the request with a brief setting forth anything of record which ‘might arguably support the appeal’; and (3) furnish his indigent client a copy of the brief in order to allow the defendant to raise any points he chooses to raise . . . When the above requirements are satisfied by counsel, Anders requires this court to examine fully the record and transcript and determine whether the appeal is, in fact, wholly frivolous. If not found to be so, the appellant must be furnished further assistance of counsel to continue the appeal. If found to be frivolous, counsel’s request to withdraw may be granted and the appeal will be dismissed.”

This approach to criminal appeals in cases involving appointed counsel for indigent defendants arose out of dissatisfaction with procedures which existed prior to the United States Supreme Court decision in Anders, supra. Quoting from Douglas v. California, 372 U. S. 353 (83 SC 814, 815, 9 LE2d 811) (1963), Anders sought to correct a situation “ ‘where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself.’ ” Anders, supra, 18 LE2d at 496.

The solution devised to remedy this problem is that outlined above in Bethay, which was followed by the Supreme Court of Georgia until its decision in Huguley v. State, 253 Ga. 709 (324 SE2d 729) (1985), when it discontinued granting such motions. However, our court continued to recognize Anders motions until today.

The question here may be phrased thusly: “What duty does appointed counsel owe to an indigent defendant in prosecuting an appeal?” That question was answered in Anders when the U. S. Supreme Court said that an indigent defendant has a right to counsel on first appeal unless counsel finds the matter to be “wholly frivolous.” The majority today declares in one fell swoop that there is no such thing as a frivolous criminal appeal; it is with that conclusion that I take issue. I find myself in agreement with Justice Stewart, who in dissenting in Anders (at 18 LE2d 500) observed that “[t]he fundamental error in the Court’s opinion ... is its implicit assertion that there can be but a single inflexible answer to the difficult problem of how to accord equal protection to indigent appellants. . . .”

In joining the Supreme Court of Georgia in disallowing Anders motions, the majority declines to make an independent review of the record without the assistance of counsel. Our role as an appellate court, however, is somewhat different than that of the Supreme Court in that we are a court for the correction of errors of law, while it has a more expansive role. Graham v. State, 152 Ga. App. 233, 238 (262 SE2d 465) (1979). Whereas in the criminal arena we consider matters from misdemeanors to manslaughter, the Supreme Court’s direct criminal jurisdiction extends only to “cases in which a sentence of death was imposed or could be imposed. . . .” (1983 Constitution of Georgia, Art. VI, Sec. VI, Par. Ill (8)); it is understandable, therefore, that since it deals with matters of extreme gravity, the Supreme Court would, out of an abundance of caution, need some assistance of counsel in reviewing the record.

As to the matter of independent review, appellate courts have been making such a review of the record in a variety of types of cases, including defamation (New York Times v. Sullivan, 376 U. S. 254 (84 SC 710, 11 LE2d 686) (1964)) and sufficiency of the evidence cases (Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)), to mention just two. If we kept Anders motions, our review of the record would not be entirely without the benefit of trial counsel because under Bethay, supra, trial counsel would be required to set forth those enumerations that could arguably be advanced in support of the appeal. Therefore, some assistance would be provided in directing the court’s attention to possible errors.

The question is not one of balancing the indigent defendant’s right to counsel on his first appeal against the attorney’s desire to withdraw. If that were the case, we would certainly favor the right to counsel. I see the question as being one of determining the appropriate manner by which the indigent defendant can be offered the right to counsel on the first appeal without doing violence to the integrity of the judicial process and without forcing the lawyer to advance arguments that are wholly frivolous.

While the law presumes that every defendant enters upon the trial of the case with a presumption of innocence in his favor (OCGA § 16-1-5), I know of no presumption that every appeal is meritorious. I suspect that this is why the court in Anders provided a reasonable method for an attorney to exit the case when he concluded that the appeal was wholly frivolous.

The statute books and case reports are replete with citations too numerous to mention where, in the civil arena, we have imposed penalties in various forms on litigants and attorneys who file and pursue frivolous lawsuits and appeals. That body of law shows that both the legislative and judicial branches of government have chosen to impose civil penalties to prevent the abuse of the legal system and to maintain the integrity of the legal process.

The public is clamoring for more realistic approaches to justice that provide for fairness, expeditiousness, and finality. Unfortunately, the majority now compounds the problem by forcing lawyers to advance arguments that are meritless for the mere sake'of prosecuting an appeal. Added to this will be the requirement that we treat all arguments as having been offered in good faith even when reason and good conscience dictate otherwise. The end result might very well be a charade that will disserve justice and will erode confidence in the Anglo-American system of jurisprudence. I cannot abide this result; therefore, I must dissent. I also concur fully with the opinions of Presiding Judge Deen and Presiding Judge Banke.

I am authorized to state that Presiding Judge Deen joins in this opinion.

Deen, Presiding Judge,

dissenting.

Certain privileges or rights are provided under Anders v. California, 386 U. S. 738 (87 SC 1396, 18 LE2d 493), permitting counsel to file a motion to withdraw from the case if certain criteria are met. In announcing this rule the United States Supreme Court seems to indicate that appellate courts will exercise discretion in granting or denying this type motion. To adopt a blanket rule that these type motions will never be entertained or granted indicates that an appellate court has prejudged the merits of the motion and in effect is a refusal to exercise discretion. Preservation of Anders motions perhaps may be out-of-step with our State Supreme Court on this issue, but it is in sync with the United States Supreme Court. (Other rules within our two Georgia appellate courts vary, i.e. — publication or not of opinions).

Because I cannot agree with the proposal of forever shutting the door upon or non-recognition of Anders motions, I concur fully with the dissent of Presiding Judge Banke and respectfully also file this separate dissent.

Decided December 5, 1988.

Hobart M. Hind, District Attorney, for appellee.

I am authorized to state that Judge Benham joins in this dissent.


author: Pope, Judge. Beasley, Judge, Benham, Judge,

text:
    76969.
    TODD v. THE STATE.
    (376 SE2d 917)
   Pope, Judge.

Appellant was convicted of burglary and now appeals asserting fifteen enumerations of error.

1. Appellant contends that the trial court erred in allowing the State to present, through the testimony of several witnesses, evidence of similar transactions in which appellant was allegedly involved. The basis for appellant’s position is the fact that the State did not comply fully with Uniform Superior Court Rule 31.3, 253 Ga. 854 (1985), in notifying appellant of its intent to present the evidence in question. The rule requires that the notice be in writing, served upon defendant’s counsel, and state the “transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced. Copies of accusations or indictments, if any, and guilty pleas or verdicts, if any, shall be attached to the notice.” Id., Section (B). The notice that the State provided merely stated that the State “intends to call witnesses ... to give testimony concerning incidents involving the defendant ... on the dates of January 1, 1986, June 20, 1986, June 25, 1986, June 30, 1986, July 5, 1986, July 8, 1986, August 11, 1986, and August 18, 1986. . . .” No copies of accusations, indictments, guilty pleas, or verdicts were attached. At the hearing on the issue, the State argued that its notice referenced by implication the indictments against appellant in Madison County, and since appellant was represented by the same counsel in Madison County and they previously had received copies of the indictments, they should have known that those were the transactions the State intended to introduce in the case being tried in Oglethorpe County.

The record also shows that the State gave notice to appellant’s counsel of its intent to use similar transactions at a hearing at least six months before trial. The notice provided by the State was served on appellant’s counsel 54 days before trial. In argument to the trial court, appellant’s counsel cited only the technical violation of the rule, but never indicated any difficulty or harm to his client’s defense because of the State’s omission. In Sweatman v. State, 181 Ga. App. 474 (1) (352 SE2d 796) (1987), we stated that the purpose of the rule was to provide a criminal defendant adequate notice of the State’s intent to use similar transactions to enable the defendant to resolve questions regarding admissibility of such evidence before trial. Moreover, we stated that a violation of the rule must result in prejudice to the defendant. The rule clearly presupposes that the State’s failure to comply with the rule will result in harm to the defendant by failing to give him adequate notice of the similar transactions sought to be used by the State. Consequently, non-compliance with the rule puts the burden on the State to prove that its violation of the rule’s requirements did not harm the defendant. However, the State can avoid the consequences of its failure to adhere to the rule by showing that the defendant had the requisite notice in spite of the State’s failure.

The record here shows that the State carried its burden in this regard. Appellant’s counsel represented appellant on the indictments of the similar transactions sought to be used by the State and counsel had copies of the indictments. Appellant had the requisite notice to satisfy the rule’s intent. In these circumstances, the trial court’s ruling is not harmful error. See Payne v. State, 184 Ga. App. 366 (2) (361 SE2d 666) (1987).

2. At the close of the State’s evidence, appellant moved for a directed verdict of acquittal, arguing that there was no evidence linking him to the burglary of the victim Mr. Nation’s home, because he was not involved in entering the residence, was not present when the residence was entered, and did not have the knowledge that that particular house was to be broken into. The trial court denied the motion, and appellant cites the denial as error.

The State tried appellant for burglary based on his alleged participation as a party to the crime, under OCGA § 16-2-20 (4). That section states that a person may be charged with and convicted of commission of a crime if he “[ijntentionally advises, encourages, hires, counsels, or procures another to commit the crime.” The State’s theory of the case is that appellant aided and encouraged the burglary by stating to Kenneth Potts, the actual burglar, what stolen items he would buy (guns and VCRs) because he could readily sell these items. Appellant created a market, thus encouraging Potts to commit the offense of burglary.

The evidence at trial supported this theory. Potts testified that appellant had purchased stolen items from him in the past. According to Potts, “[appellant would] ask about where would they come from, whereabouts, and we’ll tell him.” The evidence clearly established that appellant knew the items Potts had been selling to him were stolen. Potts testified that “[appellant] said that if we ever had any more guns, that he would buy them, so we — every gun we’d get, we’d take to him.” Thus, the evidence clearly established that appellant knew Potts would steal the guns he supplied to appellant, and would not purchase them at yard sales, as the dissent suggests.

Such evidence is sufficient to convict one as a party to a crime. In Grant v. State, 47 Ga. App. 234 (1) (170 SE 394) (1933), this court held that one who counsels and encourages another to commit larceny by promising to buy the fruits of the crime is guilty as a principal even though one does not act as an actual perpetrator of the crime. That the appellant in the case at bar did not specifically select the target of the crime, as was the case in Grant, is irrelevant. Appellant clearly counseled and encouraged others to commit burglary to obtain readily marketable goods, specifically guns and VCRs.

Appellant asked Potts where the guns came from. Potts told him that he had “broke into a house in Oglethorpe.” Another man, Wayne Kalb, who negotiated the sale of the stolen items to appellant, corroborated Potts’ testimony. Potts said that appellant needed to know where the items were taken so he could resell them elsewhere. Appellant purchased the guns knowing they were stolen and after inquiring about the area from which the guns were stolen. Conduct and companionship before and after the crime are circumstances from which the factfinder may infer criminal intent. Jones v. State, 242 Ga. 893 (1) (252 SE2d 394) (1979). In the case at bar, the evidence authorized the jury to conclude appellant intentionally encouraged Potts to commit the burglary. Thus, appellant’s reliance on Kilgore v. State, 251 Ga. 291 (la) (305 SE2d 82) (1983) is misplaced because in that case there was no evidence of encouragement to commit the crime. The trial court in the case at bar properly denied the motion for directed verdict.

3. Appellant alleges that the trial court erred in denying his motion for mistrial when it allowed a witness who inadvertently violated the sequestration rule to testify. The trial court gave curative instructions in accord with Jordan v. State, 247 Ga. 328 (10) (276 SE2d 224) (1981). We find no error. See also Bradford v. State, 182 Ga. App. 337 (6) (355 SE2d 735) (1987).

4. Appellant’s remaining enumerations deal with the charge to the jury, generally with the court’s charge on conspiracy. We find no error. Battle v. State, 231 Ga. 501 (202 SE2d 449) (1973); Anderson v. State, 153 Ga. App. 401 (3) (265 SE2d 299) (1980); see also Ross v. State, 255 Ga. 1 (5b) (334 SE2d 300) (1985).

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Carley and Sognier, JJ., concur. Beasley, J., concurs in part and dissents in part. Benham, J., dissents.

Beasley, Judge,

concurring in part and dissenting in part.

1. I concur in Division 1 of the majority opinion because of precedent, but I do so more narrowly. The majority’s approach puts the burden on defendant to prove harm instead of on the State to prove compliance or suffer adverse consequences. Harm should be presumed, at least unless it is shown that defendant had actual prior notice, which is the purpose of the rule. The rule by its nature implies a presumption of harm from lack of notice.

It provides for clear and positive identification to be given, by the State, before the hearing on the issue, so that defendant can adequately prepare to contest admissibility. See McBride v. State, 185 Ga. App. 271, 273 (2) (363 SE2d 802) (1987). The voids in the State’s notice do not reach substantial compliance. The answers to the questions “what?”, “where?” and “who?” were not answered; the answer only to “when?” was stated. As pointed out to the trial court, it leaves defendant guessing or at least uncertain.

Considering that the introduction of similar transactions is a guarded exception to the general rule against character evidence (OCGA § 24-2-2 and 24-9-20 (b)), and that Rule 31.3 carries forward the law’s reticence by casting the burden of proving admissibility on the State, compliance should be enforced.

In this case, there was notice although not in accordance with the procedural rule. Defendant argued to the trial court that he was not apprised by the document of the facts called for in. the rule, but he did not contest the statements that he knew them from a prior hearing and the supplementary sources. Had the fact been that he did not have the information required by USCR 31.3 (B), I would join in the majority’s conclusion without requiring a further showing of harm. That is, a defendant should not have to prove that if he had the facts, he would have used them in some beneficial way. To win a ruling of inadmissibility, he should only have to show that he had no notice.

Of course, there is a difficulty even with an “actual prior notice” exception to enforcement of the rule, in that it allows the State to choose the method by which it notifies defendant of the facts called for.

2. I concur in the dissent with respect to Division 2, and with the majority with respect to Divisions 3 and 4.

Benham, Judge,

dissenting.

I must dissent because I disagree with the majority opinion in Divisions 1 and 2, and would reverse the conviction on both grounds.

1. In Division 1, the majority holds that in spite of the State’s noncompliance with Uniform Superior Court Rule 31.1 (253 Ga. 854 (1985)) in notifying appellant of its intent to present similar transaction evidence, similar transaction evidence was admissible because appellant should have known that the indictments in Madison County were the ones the State intended to introduce in the Oglethorpe County trial, and because appellant did not show any harm to his defense as a result of the State’s failure to comply with the rule. The rule requires that the notice be in writing, served upon defendant’s counsel, and state the “transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced. Copies of accusations or indictments, if any, and guilty pleas or verdicts, if any, shall be attached to the notice.” Id., Section (B). The State’s notice did not contain the transaction, county, names, or victims for each transaction, or copies of accusations or indictments. I fail to see how the majority can consider such a notice to constitute substantial compliance with the rule, as required in Sweatman v. State, 181 Ga. App. 474 (1) (352 SE2d 796) (1987). A defendant should not be required to piece together on his own the various components of information that the rule entitles him to receive as a whole from the State. To comply with the rule, the prosecution must reveal to appellant all the information that it has which is specified in the rule. Patten v. State, 184 Ga. App. 152 (3) (361 SE2d 203) (1987); Eidson v. State, 182 Ga. App. 321 (2) (355 SE2d 691) (1987). That rule should hold true regardless of whether a defendant previously possessed some of the information. Suppose appellant had committed other crimes in other counties on some of the dates that were listed in the Rule 31.3 notice. The mere listing of the dates with no recitation of the counties or persons involved or other required information would deny a defendant information to which he was entitled and would keep him from adequately preparing his defense against the introduction of such evidence. Had the State complied more fully with the rule, I might have been persuaded by the majority’s decision that “the defendant had the requisite notice in spite of the State’s failure.” However, I cannot condone characterizing an undisputed, unexplained and unjustified wholesale abandonment of compliance by the State as a mere “technical violation of the rule.” It is my opinion that the State should have been made to suffer the consequences of its noncompliance, and that the prosecution witnesses in question should not have been allowed to testify about the similar transactions. That testimony was clearly harmful to appellant, as it linked him to a number of burglaries that had been committed by others, and without that testimony the jury might not have reached a guilty verdict. The Uniform Rules were intended to provide just that — uniformity of the pretrial and trial process, so that the parties know, at a minimum, what information to expect, when they can expect to receive it, and when they are required to file notices or motions. If these rules are not enforced, the uniformity may remain in theory, but in practice the litigation process will devolve to the point where defendants will be subject to the vagaries of well-meaning but overzealous and/or overworked prosecutors, who may not, for whatever reason, comply in full with the “technicalities” of our legal system. I fear that if this happens, true justice will not be served and, ultimately, everyone will suffer as a result.

2. I also disagree that the evidence was sufficient to support appellant’s burglary conviction. While I do not doubt that appellant was engaged in criminal conduct, i.e., theft by receiving stolen property (OCGA § 16-8-7), the State failed to prove that he encouraged the burglar, Potts, to commit any burglary, much less the one of which he was convicted. Potts, testifying for the State, said that he took the weapons to appellant’s house because he had taken guns there before and appellant had bought them, and appellant had also told him and others that if they “ever had any more guns ... he would buy them, so . . . every gun we’d get, we’d take to him.” There was no testimony that appellant had told Potts or anyone else to steal guns so they could bring them to appellant to sell. It was Potts’ idea to steal items, not appellant’s. Potts said that while riding down the road, he saw the victim’s house and decided to burglarize it; that he did not know who lived there, did not know what was inside, and was not looking for anything in particular; that he had never talked to appellant or anyone else about breaking into that house; that appellant did not know Potts was bringing the guns to his house, nor did he know that Potts was going to break into a house and steal anything.

Another member of the ring testified that appellant never told them where to go to get items, but had told them what he would buy, what he needed, and what he could and could not sell, so the burglars tried to get items that appellant would be willing to buy. They took their items to appellant because he said he would buy what they could bring him. He further testified that appellant never told them to break into a house and steal a certain item, and he never conversed with them before they committed the burglaries. Appellant testified that he got the guns in question from his neighbor, in an attempt to assist the sheriff in locating the stolen property.

It is clear that appellant was in the business of selling marketable goods, stolen or otherwise. But the evidence does not support a burglary conviction. The fact that appellant may have known or suspected that the items were stolen does not make him guilty of burglary as a principal. Appellant’s situation is not like that of the appellant in Grant v. State, 47 Ga. App. 234 (1) (170 SE 394) (1933), relied upon by the majority. In Grant, the actual perpetrators testified that the appellant “promised them that if they would steal the peanuts from Kelly, he would buy them at a reasonable price, and that he assisted them in unloading the peanuts after they had stolen them; that before they stole the peanuts they had an agreement with him that he would buy them, and that he discussed the matter with them; [and] that in the discussion he told them to get Kelly’s peanuts.” Id. at 234. There was no evidence presented at trial to show that appellant had such a specificity of agreement or involvement. No proof was offered to show that appellant had asked or suggested that Potts commit any burglary. The majority opinion misstates the record when it asserts that appellant “clearly counseled and encouraged others to commit burglary to obtain readily marketable goods,” and that appellant stated to Potts “what stolen items he would buy . . . because he could readily sell these items.” In fact, the evidence was that appellant had never told Potts or others to steal anything; that Potts sought appellant out after he had broken into the victim’s house and stolen the guns; that Potts himself did not decide to commit the burglary until he saw the victim’s house; and that he was not looking for anything in particular. Even if appellant had known that Potts intended to steal guns from somewhere, he did not know who the intended burglary victim was, when the burglary was to be committed, and did not in any way participate in or encourage the burglars to commit the act. See Kilgore v. State, 251 Ga. 291 (1a) (305 SE2d 82) (1983). The majority’s assertion that my reliance on Kilgore is misplaced is unfounded. There is no distinction between the situation in Kilgore and the one before us, and the majority does not attempt to draw one. Moreover, the majority’s statement “[t]hat appellant did not specifically select the target of the crime is irrelevant” totally misses the point of the cases upon which it relies. It is the total lack of specificity in this case that makes the difference between evidence of guilt of the crime and the lack of such evidence. Appellant’s statement about what he could sell was merely an offer to purchase items that the burglar/witnesses might have obtained at some point from some unnamed source. For all appellant knew, Potts could have been planning to obtain items by shopping at a few yard sales or trading with others rather than stealing, since the offer was that if they “ever had any more guns ... he would buy them.” Not only was there no direction to steal from someone in particular, there was no mandate, suggestion, or encouragement that items be stolen at all.

Although there was proof that a burglary had been committed and that appellant had possession of the stolen items, there was no proof that appellant had intentionally advised, encouraged, hired, counseled, or procured any of the actual burglars to commit the crime (OCGA § 16-2-20 (4)), and the mere proof of appellant’s recent, unexplained possession of stolen goods did not establish the offense beyond a reasonable doubt. See Bankston v. State, 251 Ga. App. 730 (309 SE2d 369) (1983). While I agree with the majority that appellant “purchased the guns knowing they were stolen and after inquiring about the area from which the guns were stolen,” that only proves appellant’s guilt of theft by receiving stolen property, not burglary. The majority relies erroneously on Jones v. State, 242 Ga. 893 (1) (252 SE2d 394) (1979), which was decided prior to Kilgore, supra. In Jones, the appellant, convicted of murder, had been with the other perpetrators while they planned an armed robbery, acted as a lookout while the others committed the crime, watched while one victim was shot and killed, fled the murder scene with the other murderers, and did not attempt to inform the police about her knowledge of the crimes until she was arrested two weeks later. There was clearly evidence of Jones’ participation prior to, during, and after the murder. Not so here. There was nothing to prove that appellant knew the guns were going to be stolen, and, even if he did, “approval of the act, not amounting to encouragement, will not suffice [to prove that one is a party to a crime]. [Cit.]” Moore v. State, 255 Ga. 519 (1) (340 SE2d 888) (1986). Compare Jester v. State, 151 Ga. App. 277 (259 SE2d 680) (1979), in which “ ‘[a]n alleged co-conspirator, a witness for the State, testified in great detail as to the defendant’s actions in carrying out the burglary.’ ” In this case, the State, had no such testimony.

I wholeheartedly believe that if a person is guilty of the crime for which he is charged, he should be punished. However, this court, in its zeal to accomplish that goal, should not allow omissions and mistakes of prosecutors and trial courts to go uncorrected, thereby perverting the law and reaching an unintended result. While such actions may be emotionally satisfying for the public and the judiciary on a case-by-case basis, the cause of justice and the integrity of our judicial system is not, in the long run, well served. Like Robinson v. State, 256 Ga. 564 (350 SE2d 464) (1986), reversing Robinson v. State, 180 Ga. App. 43 (348 SE2d 662) (1986), this case presents a situation in which the accused is clearly guilty of wrongdoing and should be brought to justice, but is prosecuted for a different crime. We should recognize these cases for what they are and correct errors of law when we have the opportunity to do so, lest another tribunal be forced to do it for us. See, e.g., Gordon v. State, 257 Ga. 335 (359 SE2d 634) (1987), reversing in part Gordon v. State, 181 Ga. App. 391 (352 SE2d 582) (1986). “In view of the fact that the circumstantial evidence of [appellant’s] guilt fails to preclude every other reasonable hypothesis, including the explanation put forth by defendant in his testimony, and despite the fact that circumstances create suspicion of [appellant’s] guilt ... , [it is my opinion that] the verdict and judgment against [appellant should] be reversed for the foregoing reasons.” Parker v. State, 155 Ga. App. 617 (2) (271 SE2d 871) (1980). Therefore, I respectfully dissent.

I am authorized to state that Judge Beasley joins in Division 2 of this dissent.

Decided December 5, 1988.

Crecelius & Crecelius, B. W. Crecelius, Sr., for appellant.

Lindsay A. Tise, Jr., District Attorney, John H. Bailey, Jr., Assistant District Attorney, for appellee.