author: Pope, Presiding Judge. Blackburn, Chief Judge,

text:
    A01A2520.
    KLAUB v. THE STATE.
    (564 SE2d 471)
   Pope, Presiding Judge.

Ronald Klaub was convicted by a jury of two counts of vehicular homicide, hit and run, and driving with a suspended license. He appeals his convictions, raising several arguments, including that the trial court erred by (1) failing to grant a directed verdict of acquittal as to the charge of homicide by vehicle through the commission of reckless driving; (2) failing to grant a directed verdict of acquittal as to the charge of homicide by vehicle through the violation of OCGA § 40-6-270, the hit and run statute; and (3) failing to strike a juror for cause. We reverse Klaub’s conviction for vehicular homicide through the commission of reckless driving. We affirm the remainder of the judgment. In light of our holding in this case, we remand this case to the trial court for resentencing consistent with this opinion.

Viewed in the light most favorable to the verdict, the evidence presented at trial showed that on the night of December 9, 1998, between 7:00 and 8:00 p.m., Klaub told his wife, Charlene Ward, that he was going out and taking her car, a 1986 Mercury Topaz. When he returned around 11:00 p.m., Klaub informed Ward that he had hit a dog and damaged her car. Ward went to the garage and saw that the headlight had been broken and that the windshield was cracked.

On the morning of December 10, 1998, the body of Joeann Edwards Swift was found lying facedown in some leaves just off the roadway near the intersection of Moreland Drive and Hazelrig Drive. The night before, she had walked to a pay phone to call her son in New York; that conversation was the last she had with anyone. The victim’s body was surrounded by automobile pieces; some of these pieces, found in the victim’s clothing and examined by the crime lab, were identified as coming from Klaub’s wife’s car. On the basis of an autopsy, it was surmised that the victim probably died between 12:45 a.m. and 6:45 a.m. on December 10, though the time of death could have been earlier. The victim’s injuries were typical of those of a person who has hit a windshield. The cause of death was injury to the brain, and because there was very little swelling of the brain, it was estimated that the victim had died within minutes of being struck. There were no witnesses to the accident.

On December 20, 1998, Officer Britman of the Atlanta Police Department met with a black female whom he had never met. The woman, who would not give her real name and who was accompanied by a co-worker from the Home Depot across the street from the Zone 2 precinct office, told Britman that she knew who had driven the car that struck the victim on Moreland Drive, that the driver’s name was Ron, and that the car had front-end damage and a broken windshield. She said that she had gotten her information from Ron’s wife, Cathy, a co-worker with whom she had been drinking and smoking marijuana in a shed behind Ron’s house the day before. Based on the informant’s description, Britman located the house; he did a computer check on the address but found that the house belonged to a Florence Lange.

On December 23, 1998, Britman received a call from Officer Stephens of the Clayton County Police. Stephens told him that he had spoken to one of his informants, a black female, who had told him that a man named Ronald Klaub had been the driver of the vehicle which killed the victim. Britman and Stephens, along with some other officers, went to Klaub’s house, where they introduced themselves to Klaub’s mother, Mrs. Lange, and asked for Klaub. Informed that Klaub was not at home, the officers were then invited in by Lange and told that they could search the house. In the garage they found a 1986 Mercury Topaz with a cracked windshield and broken headlight. When asked about the damage to the car, Lange said that Klaub had told her that he had hit a dog and then had added, “That’s all you need to know.” He also told her that no one was to touch the car.

While Clayton County police officers remained at Klaub’s house, Atlanta officers obtained a warrant. When Klaub returned, he encountered Stephens in front of his house. Klaub was read his Miranda rights but waived those rights and gave a statement to Stephens. Klaub said that he had loaned his wife’s car to a woman named Cathy on the night of December 9, 1998. When Cathy returned the car, she was in tears; she explained that she had hit a dog and done damage to the car. Klaub stated further that because he had not wanted his wife to find out that he had loaned her car to a female friend, he had told her that he had been the one who had been driving, hit the dog, and damaged the car.

Cathy Puckett testified that she had never driven Klaub’s car and that, on the night of the incident, she had been home with her family. She admitted that she knew a black female who worked at Home Depot but said that she had not spoken with her during the period of time surrounding the incident.

1. In his first enumeration of error, Klaub maintains that the trial court erred in failing to direct a verdict of acquittal as to the charge of vehicular homicide through the commission of reckless driving.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Footnote omitted.) Washington v. State, 251 Ga. App. 206 (1) (553 SE2d 855) (2001).

OCGA § 40-6-390 (a) provides that “Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving.” Klaub argues that the record in this case is devoid of any evidence as to the manner in which the car was driven and that, in the absence of such evidence, the State has failed to prove that the car was driven in reckless disregard for the safety of persons or property. We agree.

It is clear that the offense of reckless driving may be committed in a variety of ways; thus, in order to establish a violation of OCGA § 40-6-390, the State needed only to present evidence showing that Klaub drove his car in a manner exhibiting reckless disregard for the safety of persons or property. In its brief, the State argues that there was sufficient evidence produced at trial from which the jury could conclude that Klaub drove in a reckless manner. This argument ignores the fact that the trial court granted Klaub a directed verdict as to Count 3 of the indictment, which charged Klaub with unlawfully driving “a motor vehicle in reckless disregard for the safety of the deceased, Joeann Edwards Swift, for said accused did drive his vehicle off of the roadway and into Joeann Edwards Swift.” (Emphasis supplied.)

As a basis for directing a verdict in favor of Klaub on Count 3, the trial court observed:

[T]he only evidence there of committing an offense in that manner, of driving off the roadway, was contained in one photograph which had been admitted into evidence, which was State’s Exhibit 4, which shows a tire track or tire tracks appearing to come back into the roadway after being somewhat on the shoulder and going through some kind of muddy area and then tracking back up onto the asphalt and in an area that leads directly to other items that were marked by the police, that is, either items of clothing or personal effects or car parts. But there is no testimony about that at all, and there is no evidence at all to indicate that this actually was the car in question. . . . [T]here were no tire tread comparisons or an analysis or anything like that. This could have been a car that had pulled off, parked on the shoulder and pulled off, and at sometime either that morning or in the middle of the night or sometime earlier or later — I mean, there’s just no indication at all.

On the basis of this reasoning, the trial court concluded that there was insufficient evidence to sustain a finding of reckless driving by driving off the roadway and striking the victim and directed a verdict for Klaub on Count 3. Our examination of the trial transcript convinces us that the trial judge did not err in granting Klaub a directed verdict on this basis.

We recognize that reckless driving may be established by proving that a defendant was driving at an excessive rate of speed given the posted speed limit and the driving conditions existing at the time. See, e.g., Carroll v. State, 222 Ga. App. 560, 561 (474 SE2d 737) (1996). In this case, the forensic pathologist testified that the minimum speed of Klaub’s vehicle when it struck the victim was 40 mph. Driving at this speed could amount to reckless driving under certain conditions, but the State presented no competent evidence of the driving conditions that night or of the posted speed limit. Accordingly, there is no evidence that Klaub committed reckless driving by driving at an excessive speed. Thomas v. Baxter, 234 Ga. App. 663, 667 (507 SE2d 766) (1998).

The State argues that there was sufficient evidence for the jury to conclude that Klaub drove the car on December 9, 1998. The State also argues that it established at trial that Klaub’s car was the vehicle which struck and killed the victim. Proof of these matters does not establish that the car was driven in a reckless manner. As the trial judge pointed out,

it is possible that this death really was an accident. The clothing that was being worn by Ms. Swift at the time conceivably could have made her very difficult to see, depending on her position, whether it was in the road or on the side of the road or on the shoulder, wherever it may have been. But if it was in the road, it is conceivable that this entire thing was an accident, a tragic accident that caused her death, but nevertheless an accident.

There is no evidence establishing where the victim was when she was struck; she could have been several feet off the road or in the middle of the road. Likewise, there is no evidence showing that the victim would have been visible for a considerable distance, or that a reasonable driver would have seen her and been able to avoid striking her. There is no evidence that Klaub was traveling at an excessive speed, or that Klaub was driving in any other manner exhibiting a reckless disregard for the safety of persons or property. Under these circumstances, we find that the evidence was insufficient to enable any rational trier of fact to find Klaub guilty beyond a reasonable doubt of the offense of homicide by vehicle in the first degree through violation of OCGA § 40-6-390.

2. Klaub further argues that the trial court erred in failing to direct a verdict of acquittal as to the charge of vehicular homicide in the first degree, OCGA § 40-6-393 (a), through the violation of the hit and run statute, OCGA § 40-6-270 (b). Specifically, Klaub argues that the State was required to prove that violation of the statute, i.e., failure to stop and render aid, was the proximate cause of the death of the victim. Klaub contends that because expert testimony established that the victim died within a matter of minutes, Klaub’s failure to remain at the scene of the accident and render assistance was not the cause of the victim’s death.

In this case, the expert testimony of the forensic pathologist indicated that the victim died quickly, within ten minutes of being struck. The proximate cause of her death was the severe injury she sustained when she was struck by Klaub’s vehicle. The conclusion, based on the medical evidence, is inescapable that she would have died even if Klaub had remained on the scene and rendered assistance. Thus, Klaub argues that there was no evidence that his actions in leaving the scene of the accident caused or played a substantial part in bringing about the victim’s death.

Contrary to Klaub’s arguments, the trial court did not err in denying his motion for a directed verdict of acquittal on this count. The argument, advanced by Klaub and adopted by the dissent, that in order to convict a defendant under this statutory provision a victim’s death must have been caused by a defendant’s failure to stop and render assistance, is erroneous. The illegal act involved in this crime is causing the death or injury by the accident and then failing to stop and render assistance.

With respect to homicide by vehicle in the first degree, OCGA § 40-6-393 (a) provides, in pertinent part: “Any person who, without malice aforethought, causes the death of another person through the violation of. . . subsection (b) of Code Section 40-6-270 . . . commits the offense of homicide by vehicle in the first degree. . . .”

OCGA § 40-6-393 (a) also provides other ways in which vehicular homicide in the first degree may be committed. But, the only provision for a first degree vehicular homicide caused by a hit and run driver who does not fall within any of the other crimes is provided for in subsection (a).

The relevant provisions regarding the offense of hit and run are set forth in OCGA § 40-6-270 (a), which provides:

The driver of any vehicle involved in an accident resulting in injury to or the death of any person or in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of the accident or shall stop as close thereto as possible and forthwith return to the scene of the accident and shall: (1) Give his name and address and the registration number of the vehicle he is driving; (2) Upon request and if it is available, exhibit his operator’s license to the person struck or the driver or occupant of or person attending any vehicle collided with; and (3) Render to any person injured in such accident reasonable assistance, including the transporting, or the making of arrangements for the transporting, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such transporting is requested by the injured person. The driver shall in every event remain at the scene of the accident until fulfilling the requirements of this subsection. Every such stop shall be made without obstructing traffic more than is necessary.

OCGA § 40-6-270 (b) then explicitly provides: “If such accident is the proximate cause of death or a serious injury, any person knowingly failing to stop and comply with the requirements of subsection (a) of this Code section shall be guilty of a felony. . . .” (Emphasis supplied.) The legislature amended the hit and run statute, OCGA § 40-6-270 (b), in 1988, see Ga. L. 1988, p. 1499, § 1, adding the language in subsection (b) which requires that the accident be the proximate cause of the victim’s injuries.

Since 1988, the statute has been applied many times. See, e.g., Scott v. State, 230 Ga. App. 522, 525 (2) (496 SE2d 494) (1998); Tid-well v. State, 216 Ga. App. 8, 12 (5) (453 SE2d 64) (1994); Dworkin v. State, 210 Ga. App. 461 (436 SE2d 665) (1994); Burden v. State, 187 Ga. App. 778 (371 SE2d 410) (1988). And the cases regarding vehicular homicide apply OCGA § 40-6-393 (a) in the manner in which it is written; there are no cases since the amendment which impose the additional requirement proposed by the dissent’s strained construction. See also Bellamy v. Edwards, 181 Ga. App. 887, 889 (3) (354 SE2d 434) (1987).

In fact in Scott v. State, 230 Ga. App. at 525, this court stated:

The evidence was also sufficient to support the jury’s finding that after this accident, the proximate cause of the victim’s death, Scott knowingly failed to immediately stop his vehicle at the scene of the accident or stop as close thereto as possible and forthwith return to the scene of the accident and render to the victim reasonable assistance.

(Punctuation omitted; emphasis supplied.)

Because of the change to the statute in 1988, Collins v. State, 172 Ga. App. 100, 101 (1) (321 SE2d 823) (1984), is no longer controlling, and the dissent’s reliance on that case is misplaced since it was decided before the addition of subsection (b) to OCGA § 40-6-270. Moreover, contrary to the dissent’s conclusion, neither Miller v. State, 236 Ga. App. 825, 828 (2) (513 SE2d 27) (1999), nor Pitts v. State, 253 Ga. App. 373 (559 SE2d 106) (2002), alters this analysis.

Requiring that “the accident” proximately cause the victim’s injury or death makes sense. It is nonsensical to require that a driver’s action in leaving the scene cause the victim’s injury or death. If this were the rule, if a victim died immediately after impact, a hit and run driver could never be charged with first degree vehicular homicide through a violation of OCGA § 40-6-270 (b) because there would never be any evidence that his failure to stop and render aid caused the victim’s death. To note that a driver could be charged with other methods of violating OCGA § 40-6-393 (a) or with a violation of OCGA § 40-6-393 (b) is beside the point.

The result which the dissent’s construction dictates was addressed when the legislature changed the language of OCGA § 40-6-270 (b) to require that the accident be the proximate cause of death or a serious injury. The legislature’s intent in penalizing conduct such as Klaub’s in this case was clear. “Although criminal statutes must be strictly construed, they must first be construed consistent with genuine legislative intent and in a manner which avoids absurd and contradictory results.” Reynolds v. State, 209 Ga. App. 628, 630 (1) (434 SE2d 166) (1993).

Accordingly, the trial court’s denial of Klaub’s motion for directed verdict on this count was proper.

3. In his third enumeration of error, Klaub asserts that the trial court erred in failing to strike a juror for cause. We reject this argument.

Trial courts exercise broad discretion in qualifying jurors, and, on appeal, that discretion will not be disturbed in the absence of manifest abuse. Stewart v. Stewart, 240 Ga. App. 573, 577 (524 SE2d 267) (1999). It is well settled that:

In order to disqualify a juror for cause, it must be established that the juror’s opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence. The law does not set an impossible standard on the state to obtain jurors completely free of the mere existence of any preconceived notion as to the guilt or innocence of an accused. . . . It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Irvin v. Dowd, 366 U. S. 717, 723 (81 SC 1639, [1642,] 6 LE2d 751) (1961).

(Citations and punctuation omitted.) Chancey v. State, 256 Ga. 415, 425 (3) (349 SE2d 717) (1986).

In this case, the following exchange took place during voir dire between the prospective juror and defense counsel:

[Counsel]: Okay. Do you know any reason, Ms. Braxton, that you couldn’t be fair and impartial if you were selected to serve on this jury?
The Juror: I don’t know. It’s hard to say, to be honest with you. Fair and impartial? I suppose I could be fair. I have to listen to the evidence; not a hundred percent sure, though; gut feelings.
[Counsel]: What — well, tell me what it is that, you know, that you think you would have a problem with or you feel like might be a problem.
The Juror: I don’t know. It’s kind of hard to say. I guess with my sister’s experience that she had and having a hard time physically and with the court system and the insurance company and things of that nature, I don’t want to say that will happen, but that’s in the back of my mind. Gut feelings.
[Counsel]: Well, when you say she’s had problems with the court system —.
The Juror: Well, more so with the insurance company. They wanted to take her to court possibly as — the case is still unsettled, but —.

Counsel inquired further and learned that the juror’s sister was involved in a civil case arising out of the incident. The juror said that there had not been any criminal charges as a result of that accident and that the dispute involved the insurance company’s refusal to pay. In that context, the following exchange with defense counsel transpired:

[Counsel]: So you feel like perhaps that might affect your deliberations if you were selected to be on this case?
The Juror: I think it would somewhat. I don’t know if I could be totally fair and impartial or not.
[Counsel]: Think you might hold it against my client, based on what happened to your sister?
The Juror: Hold it against him?
[Counsel]: Well, I’m trying to figure out — you said that you wouldn’t be fair and impartial. So I’m figuring, well, are you going to hold it against them?
The Juror: Well, I’m not — no. I wouldn’t hold it against them, no.
[Counsel]: You just feel like it might affect —.
The Juror: It might affect my decision somehow. I mean, I don’t know. I mean, I think I could be — I couldn’t be totally fair and impartial. Let’s put it that way.

Although the juror equivocated in responding, this is not a case like Walls v. Kim, 250 Ga. App. 259 (549 SE2d 797) (2001), in which the juror expressed a clear partiality for one party over the other. Instead in this case, the juror expressly denied that she would “hold it against [the defendant].” In fact, as stated above, this juror’s concerns arose from a civil case involving a car accident; she expressed no opinion at all about the guilt or innocence of Klaub in this case. She was not asked any questions regarding her impartiality with respect to Klaub and the crimes with which he had been charged. OCGA § 15-12-164.

Many conscientious jurors are unsure at the onset of important and emotional trials as to their ability to be completely fair and impartial about evidence which they have not yet heard. In the instant case, the juror’s ambivalence concerned her sister’s conflict with an insurer, and her uncertainty regarding her impartiality concerned that other dissimilar dispute. The trial judge observed the demeanor of the juror and listened to the juror’s words during a fairly lengthy voir dire.

The issue here is not whether we would have granted the motion to strike, but whether the trial court’s failure to do so was a manifest abuse of discretion. We conclude that it was not and that there was no reversible error.

4. We have reviewed Klaub’s remaining enumerations and have determined that they lack merit.

As stated above, because of our holdings in this case, we remand this case to the trial court for sentencing in accordance with this opinion.

Judgment affirmed in part, reversed in part and case remanded with direction. Eldridge, Miller, Ellington and Mikell, JJ, concur.

Blackburn, C. J., and Andrews, P. J, concur in part, concur specially in part and dissent in part.

Blackburn, Chief Judge,

concurring fully in part, concurring specially in part and dissenting in part.

Although I concur in Divisions 1 and 4 of the majority opinion, I must respectfully dissent from Division 2 and specially concur in Division 3.

1. The law concerning hit and run cases involving a death is controlled by OCGA § 40-6-270, the hit and run statute, and OCGA § 40-6-393, the homicide by vehicle statute. OCGA § 40-6-270 provides, inter alia, for the felony of hit and run, where the defendant fails to stop at an accident which results in death. It does not matter under this Code section that the failure to render assistance did not contribute to the death. This failure is punishable by imprisonment for one to five years.

Where, however, the failure to render aid is a contributing cause of the death, such fact supports the crime of vehicular homicide through hit and run under OCGA § 40-6-393 (a) and (b), which carries a penalty of three to fifteen years. OCGA § 40-6-393 (a) provides for the crime of homicide by vehicle in the first degree, where under subsection (a), the death of a person is caused by any of several violations listed thereafter in subsections (a) through (c), including (b) the violation of OCGA § 40-6-270. The violation under subsection (b) is the failure to stop and render aid. Therefore, in order to establish homicide by vehicle in the first degree under OCGA § 40-6-393 (a), the failure to render aid must be a contributing cause of the death. This is true because OCGA § 40-6-393 (a) requires that (b), the act of hit and run, “causes the death of another person” in order to constitute homicide by vehicle under OCGA § 40-6-393 (a) and (b). Subsection (b) is a subsection of (a), which cannot be ignored in interpreting the law.

Hit and run is a separate crime from homicide by vehicle and does not merge with the homicide by vehicle, which it would under the majority’s analysis. Klaub was convicted of hit and run as charged in Count 4 of the indictment and has not appealed this conviction.

Under the majority’s analysis, there would be no reason for the legislature to have included “such accident is the cause of death” under OCGA § 40-6-270 (b), as every such event would result in a charge of homicide by vehicle under OCGA § 40-6-393 (a) and (b). They would have simply included hit and run as a separate section of OCGA § 40-6-393, not as a subsection of (a), which requires causation. OCGA §§ 40-6-270 (b) and 40-6-393 (a) and (b) would be the same crime under the majority’s analysis, and the homicide by vehicle and hit and run convictions would have merged. The rules of statutory construction require that statutes be interpreted in such a way as to give meaning to all portions thereof, where possible. See Joiner v. State, 239 Ga. App. 843, 845 (1) (b) (522 SE2d 25) (1999).

OCGA § 40-6-393 (a) provides five different ways in which one may commit vehicular homicide in the first degree, where the listed violation contributes to the death, including through the violation of: subsection (b) of OCGA § 40-6-270 (hit and run) and OCGA § 40-6-390 (reckless driving).

To complete this statutory scheme, OCGA § 40-6-393 (b) provides:

Any person who causes the death of another person, without an intention to do so, by violating any provision of this title other than subsection (a) of Code Section 40-6-163 or subsection (b) of Code Section 40-6-270 or Code Section 40-6-390 or 40-6-391 or subsection (a) of Code Section 40-6-395 commits the offense of homicide by vehicle in the second degree when such violation is the cause of said death and, upon conviction thereof, shall be punished as provided in Code Section 17-10-3.

(Emphasis supplied.) This provision makes it clear that the division between first degree and second degree homicide is based on the statutory violation which is the contributing cause of the death, not merely the accident itself.

In each type of vehicular homicide in the first degree, a different act contributing to the ultimate homicide is being proscribed. In one type, the contributing cause of death is improperly driving around a school bus. In others, the contributing causes are driving recklessly, driving under the influence, and improperly fleeing police. And, in hit and run cases, the proscribed act is failing to stop and render assistance. Under all these scenarios, the contributing cause triggers vehicular homicide because the proscribed act causes the death. In just this way, a failure to stop and render assistance must be a contributory factor to the death of the victim for “hit and run vehicular homicide” to be a viable charge.

The majority appears to overlook this explicit legislative scheme, stating: “It is nonsensical to require that a driver’s action in leaving the scene cause the victim’s injury or death. If this were the rule, if a victim died immediately after impact, a hit and run driver could never be charged with first degree vehicular homicide through a violation of OCGA § 40-6-270 (b) because there would never be any evidence that the failure to stop and render aid caused the victim’s death.” As with any other infraction, the available evidence dictates the crime with which a defendant can be charged. If a victim dies immediately, the crime simply does not fit under the aegis of OCGA § 40-6-270 (b). If, however, a victim survives the initial crash, OCGA § 40-6-270 (b) may be applicable.

None of this means, however, that a hit and run driver who causes the immediate death of the victim cannot be charged with vehicular homicide, just as Klaub was charged in the case now before us. It is quite possible for a hit and run driver to be guilty of vehicular homicide in the first degree, even though the other driver dies immediately and an action for “hit and run vehicular homicide” is not viable. For example, an inebriated driver might hit another car, immediately kill the victim, and fail to stop at the accident. This, most certainly, would comprise vehicular homicide in the first degree pursuant to OCGA §§ 40-6-393 and 40-6-391 even though the driver could not be charged for “hit and run vehicular homicide.” In turn, this would not mean that the driver in this hypothetical would escape liability for hit and run, a separate offense altogether under OCGA § 40-6-270. Moreover, even if the driver were not inebriated in the hypothetical above, he might still be liable for vehicular homicide in the second degree.

Klaub argues that the trial court erred in failing to direct a verdict of acquittal as to the charge of vehicular homicide through the violation of the hit and run statute, OCGA § 40-6-270. Specifically, Klaub argues that the State was required to prove that violation of the statute, i.e., failure to stop and render aid, was the proximate cause of the death of the victim; since expert testimony established that the victim died within a matter of minutes, Klaub’s failure to remain at the scene of the accident and render assistance was not the cause of the victim’s death. We agree.

“The term and concept of proximate cause [have] been applied in vehicular homicide cases in this state for many years. [Cits.]” Johnson v. State. “In vehicular homicide cases, the State must prove that the defendant’s conduct was the ‘legal’ or ‘proximate’ cause, as well as the cause in fact, of the death.” Miller v. State. See also Hood v. State (“[c]ausation is a required element of vehicular homicide. It must be shown that the defendant’s illegal act . . . was the cause of death”). Kurtz, Criminal Offenses and Defenses in Georgia (4th ed. 1997), p. 538 (“It is clear that some relationship between the traffic violation and the death must be demonstrated.”).

Where a defendant is charged with vehicular homicide through violation of the hit and run statute, it is the failure to comply with the requirements of OCGA § 40-6-270 that is the illegal act causing death. OCGA § 40-6-270 (b) provides that a person who “knowingly fail[s] to stop and comply with the requirements of subsection (a) of this Code section” is guilty of a felony. Subsection (a) requires the driver of a vehicle involved in an accident resulting in injury or death to a person, or damage to a vehicle, to stop the vehicle and (1) give his name, address, and registration number of the vehicle he is driving; (2) upon request and if it is available, exhibit his driver’s license to the person struck, or the driver or occupant of or person attending the vehicle with which he has collided; and (3) render reasonable assistance to any person injured in the accident. Failure to comply with these requirements constitutes the violation of OCGA § 40-6-270 which can form the basis for prosecution for vehicular homicide under OCGA § 40-6-393. See, e.g., Tidwell v. State (holding that an allegation that a driver left “the scene of [an] accident without fulfilling the requirements of OCGA § 40-6-270, to wit: remain on said scene to render aid to said . . . [victim] and remain for the purpose of identifying said accused’s name, address, motor vehicle registration and driver’s license,” resulted in victim’s death “adequately asserted proximate cause”).

As to proximate cause,

[a]n injury or damage is proximately caused by an act or failure to act whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage and that the injury or damage was either a direct result or a reasonably probable cause of the act or omission. It is not sufficient to show that the defendant only contributed to the cause of the injury.

(Citations and punctuation omitted.) Pitts v. State.

In light of these requirements, it is clear that in order to prove vehicular homicide through violation of OCGA § 40-6-270 (b), the State must prove that the defendant’s failure to remain at the scene of the accident and render aid played a substantial part in bringing about or actually causing the death of the victim. In other words, it is the defendant’s conduct in leaving the scene without rendering aid rather than the initial injury to the victim that must cause the victim’s death. In Collins v. State, the defendant was convicted of first degree homicide by vehicle after he struck the victim from behind and failed to stop to render aid. On appeal, the defendant argued that the evidence was insufficient to support the verdict. This Court agreed and reversed the conviction, stating: “The record contains no evidence which would have authorized the jury to conclude that the defendant’s failure to stop and render assistance caused the victim’s death. Such proof is clearly required to support a conviction under the statute.” Id.

In this case, the expert testimony of the forensic pathologist indicated that the victim died quickly, within ten minutes of being struck. The proximate cause of her death was the severe injury she sustained when she was struck by Klaub’s vehicle. The conclusion, based on the medical evidence, is inescapable that she would have died even if Klaub had remained on the scene and rendered assistance. It cannot be said that Klaub’s leaving the scene of the accident, which occurred after the victim was struck by the vehicle, actually caused or played a substantial part in bringing about the victim’s death.

The State argued at trial that Collins dealt only with the statute, current OCGA § 40-6-270 (a), as it existed at the time of that decision, and that it was only under the earlier form of the statute that the State was required to show that the failure to stop and render aid was the proximate cause of the death. The State maintained that the statute was amended to include new OCGA § 40-6-270 (b), which provides that a violation of the statute occurs “[if] such accident is the proximate cause of death.” The amended statute, concluded the State, thus removes the causation requirement that the failure to remain on the scene and render aid be the proximate cause of the death, the mere happening of the accident being a sufficient proximate cause of death.

Though the trial court was originally inclined to grant Klaub’s motion for directed verdict pursuant to the decision in Collins, it was persuaded by the State’s argument that OCGA § 40-6-270 (b) eliminated the requirement in Collins that the failure to render aid be the proximate cause of death. We are not so persuaded.

The State has not been relieved of its obligation to prove in vehicular homicide cases that the proximate cause of the victim’s death was an act or failure to act on the part of the defendant. Recent cases such as Miller v. State and Pitts v. State, both decided after the enactment of OCGA § 40-6-270 (b) and cited above, reiterate the established requirement that in order for a defendant to be convicted of vehicular homicide under OCGA § 40-6-393, which includes violations of OCGA § 40-6-270 (b), his conduct must have caused the death of the victim.

If in a given case the injury complained of did not flow naturally and directly from the wrongful act or omission attributed to the defendant, or could not reasonably have been expected to result therefrom, or would not have resulted therefrom but for interposition of some independent, unforeseen cause, the defendant’s such antecedent wrongful act or omission would not be the proximate cause of the injury complained of.

Miller v. State, supra at 828. Here, the victim’s death did not naturally and directly flow from Klaub’s wrongful omission, i.e., leaving the scene of the accident, because it was her being struck by the car, not Klaub’s failing to stop, which caused her death.

It is argued that the illegal act “is the actual hit and run and not the failure to stop and render aid”; thus, a defendant could be charged with vehicular homicide under OCGA § 40-6-270 even if the victim dies immediately. This argument effectively removes the causation element from hit and run vehicular homicide cases and creates a presumption in favor of the State. Beyond that, it requires the performance of futile acts. Under such a reading of the statute, a driver would be required to supply to a deceased driver his name, address, and registration number, show the deceased his driver’s license, and render assistance to the deceased. “Although criminal statutes must be strictly construed, they must first be construed consistent with genuine legislative intent and in a manner which avoids absurd and contradictory results.” Reynolds v. State. The law does not require a futile or useless act. Nowlin v. Davis.

It is, then, leaving the scene of the accident and failing to render aid which OCGA § 40-6-270 criminalizes as hit and run. Langlois v. Wolford. See also Dworkin v. State (“Subsections (b) and (c) (1) of [§ 40-6-270] proscribe as criminal conduct, ‘knowingly failing to stop and comply with the requirements of (the Code section).’ ”). Leaving the scene of the accident is the culpable act which provides the basis for a vehicular homicide conviction, and it is that act which must be proven to have caused the victim’s death. The accident cannot substitute for the culpable act of the defendant as the proximate cause of the injury.

At trial, the State also brought the case of Scott v. State to the attention of the trial judge. In that case, it is said:

The evidence was also sufficient to support the jury’s finding that after this accident, “the proximate cause of (the victim’s) death,” Scott “knowingly fail(ed)” to “immediately stop (his) vehicle at the scene of the accident or . . . stop as close thereto as possible and forthwith return to the scene of the accident and . . . (r)ender to (the victim) reasonable assistance. . . .” OCGA § 40-6-270 (a) and (b).

We cannot say that this decision authorizes the abandonment of the established requirement that the State prove that a defendant’s conduct was the proximate cause of death in a case charging vehicular homicide under OCGA § 40-6-393. We find, therefore, that the trial court erred in failing to grant a directed verdict of acquittal as to the charge of homicide by vehicle in the first degree through violation of OCGA § 40-6-270.

Decided April 12, 2002

Anthony C. Procacci, John R. Mayer, for appellant.

Paul L. Howard, Jr., District Attorney, Rhonda B. Rusnak, Amira S. AbuBakr, Assistant District Attorneys, for appellee.

2. In his third enumeration of error, Klaub asserts that the trial court erred in failing to strike a juror for cause. Although I do not feel the trial court’s ruling was reversible error under the facts of this case, I write separately to voice my concerns.

“The test for disqualification for favor or partiality under OCGA § 15-12-164 (a) is whether a potential juror’s mind is not ‘perfectly impartial between the state and the accused.’” Cannon v. State “When ruling on a potential juror’s qualifications, the trial court must make a factual determination based on all the circumstances known to the court, including, but not limited to, the juror’s own opinion of his impartiality.” Lively v. State.

In this case, the juror’s responses to voir dire raised grave concerns about her ability to be impartial. The trial court made no inquiry into the juror’s belief that she might not be fair and impartial and refused to strike the juror for cause.

Trial courts should be guided in these cases by the concerns raised in Walls v. Kim Whether a case is civil or criminal, any indication by a juror of an inability to be impartial should be investigated by the trial court. The juror should be excused for cause if there is a reasonable likelihood of bias, favor, or an inability to be impartial for the reasons stated in Walls, supra.

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

       We note, however, that Klaub’s conviction for vehicular homicide due to reckless driving must be reversed for lack of sufficient evidence.

        Johnson v. State, 170 Ga. App. 433, 434 (317 SE2d 213) (1984).

        Miller v. State, 236 Ga. App. 825, 828 (2) (513 SE2d 27) (1999).

        Hood v. State, 193 Ga. App. 701 (389 SE2d 264) (1989).

        Tidwell v. State, 216 Ga. App. 8, 10 (453 SE2d 64) (1995).

        Pitts v. State, 253 Ga. App. 373, 374-375 (559 SE2d 106) (2002).

       As the California Court of Appeals has succinctly expressed it, “[a]lthough a violation of [the statute] is popularly denominated ‘hit-and-run,’ the act made criminal thereunder is not the ‘hitting’ but the ‘running.’ ” People v. Corners, 176 Cal. App.3d 139, 148 (1985).

        Collins v. State, 172 Ga. App. 100,101 (1) (321 SE2d 823) (1984).

       The trial court was evidently persuaded to adopt the State’s interpretation of the hit and run statute, at least in part, by the fact that OCGA § 40-6-393 refers to a violation of subsection (b) rather than subsection (a) of OCGA § 40-6-270. We agree with Klaub that subsection (b) is referenced because it is the subsection which involves death and would thus provide a basis for vehicular homicide, while subsection (c) concerns “an injury other than a serious injury,” which would not support a conviction for vehicular homicide. Subsection (a) involves all situations in which a driver would be required to stop, provide information, and render assistance, including situations which involve only damage to a vehicle, and would not be a proper basis for vehicular homicide.

        Reynolds v. State, 209 Ga. App. 628, 630 (1) (434 SE2d 166) (1993).

        Nowlin v. Davis, 245 Ga. App. 821, 822 (538 SE2d 900) (2000).

        Langlois v. Wolford, 246 Ga. App. 209, 210 (539 SE2d 565) (2000).

        Dworkin v. State, 210 Ga. App. 461, 463 (436 SE2d 665) (1993).

        Scott v. State, 230 Ga. App. 522, 525 (496 SE2d 494) (1998).

        Cannon v. State, 250 Ga. App. 777, 778 (1) (552 SE2d 922) (2001).

        Lively v. State, 262 Ga. 510, 511 (1) (421 SE2d 528) (1992).

        Walls v. Kim, 250 Ga. App. 259 (549 SE2d 797) (2001).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A02A0275.
    KING v. TURNER.
    (564 SE2d 463)
   Phipps, Judge.

Arthenia King filed a negligence claim against Gwendolyn Turner for damages arising from an automobile collision. Following a trial, the jury found in favor of Turner. King appeals, arguing that the jury charge on comparative negligence was improper for several reasons. King’s arguments have no merit. Therefore, we affirm.

Construed in favor of the jury’s verdict, the evidence showed that on December 5, 1998, King was driving on a residential street and slowed down in front of her sister’s house. Turner, who was driving directly behind King, saw neither brake lights nor signal lights operating on King’s car. Turner testified that some children playing nearby momentarily diverted her attention, and when she looked back at King’s car, it had either “stopped or was driving slowly.” Turner applied her brakes, but her car skidded into the back of King’s car. Turner was cited for following too closely. Turner posted a bond and did not go to court to contest the charge, and the citation was disposed of as a bond forfeiture.

The court instructed the jury on comparative negligence. On appeal, King makes several claims of error regarding that charge.

First, King argues that there was no evidence to support the comparative negligence charge. A charge on a given subject is justified if there is even slight evidence from which a jury could infer a conclusion regarding that subject. Here, the jury could have inferred from the evidence that King was negligent because she had stopped her car either too suddenly and without justification or with no brake or signal light operating. The charge on comparative negligence was justified.

King also argues that the comparative negligence charge was unwarranted because Turner forfeited her bond in connection with the citation, which constitutes an admission against interest. But such an admission is not conclusive evidence that Turner was negligent; it is only one circumstance for the jury to consider along with all other evidence.

King next asserts that Turner accepted full responsibility for the collision and thus contends that no comparative negligence charge was warranted. The record shows that Turner testified, “I accept full responsibility for bumping her car or the accident.” However, she further testified that she “would have applied [her] brakes sooner . . . had [she] seen some signal or anything.” Turner’s testimony did not preclude the charge on comparative negligence.

Finally, King complains that a statement in the court’s instruction on comparative negligence amounted to an improper comment on the evidence. The record reveals, however, that no objection was made at trial, and this claim of error cannot be raised for the first time on appeal.

Decided April 12, 2002.

Carter & Richbourg, Joseph I. Carter, for appellant.

Simpson & Gray, Joseph B. Gray, Jr., for appellee.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

        Sanders v. Moore, 240 Ga. App. 730, 731 (2) (524 SE2d 780) (1999).

       See OCGA § 40-13-58; Furlong v. Dyal, 246 Ga. App. 122, 126 (3) (539 SE2d 836) (2000); Cannon v. Street, 220 Ga. App. 212, 214 (2) (469 SE2d 343) (1996).

       See Sanders, supra at 731 (1) (concerning guilty plea to traffic violation).

        Johnson v. Ervin, 236 Ga. 605, 606 (4) (225 SE2d 21) (1976); Flanigan v. Reville, 107 Ga. App. 382, 383-384 (5) (130 SE2d 258) (1963).


author: Ruffin, Judge.

text:
    A02A0320.
    MORGAN v. THE STATE.
    (564 SE2d 467)
   Ruffin, Judge.

A jury found Revandez Santonio Morgan guilty of armed robbery, kidnapping, aggravated assault, and possession of a firearm during the commission of a crime. Morgan appeals, challenging the sufficiency of the evidence. He also claims that the trial court erred in not severing his trial from that of his co-defendant, Reginald Harris, and in allowing the prosecutor to make improper closing arguments to the jury. For reasons that follow, we affirm.

1. In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to support the jury’s verdict and determine if a rational trier of fact could find each essential element of the crimes charged beyond a reasonable doubt. We do not “weigh the evidence or determine witness credibility. Conflicts in witness testimony are matters of credibility for the jury to resolve. And as long as there is some evidence, even though contradicted, to support each fact necessary for the state’s case, the verdict will be upheld.”

The victim, Michael Warner, testified extensively at trial. According to Warner, Morgan and Harris knocked on his apartment door on the evening of October 3, 2000. Morgan, who worked with Warner, asked to use Warner’s telephone, and Warner agreed. While Morgan talked on the phone, Harris pulled a gun on Warner and stated, “ T want the money. I want drugs. I want whatever you’ve got.’ ” Morgan began searching Warner’s apartment, and Harris made Warner lie down on the floor. Finding no drugs in the apartment, Morgan told Warner to locate an individual named “Lolly,” who apparently was a drug dealer. Warner responded that he did not know Lolly well and would not be able to find him. Nevertheless, Morgan and Harris forced Warner out of the apartment, stating “ ‘[w]e’re taking you with us, because if we don’t get what we come [sic] to get, you’re going to die.’ ”

Morgan took Warner’s keys, locked the apartment, and then led Warner to a car, where he and Harris searched him. At that point, Morgan and Harris took from Warner his driver’s license, credit card, and $300 in cash. The two placed Warner in the front passenger seat of the car. Harris sat behind Warner with the gun to his head, while Morgan drove. During the drive, Harris threatened to kill Warner unless Warner told them how to find Lolly, and both Morgan and Harris began hitting him. At one point, Harris instructed Warner to put his hand out of the car window. When Warner did so, Harris placed the gun between Warner’s fingers and shot it, leaving Warner “paranoid for [his] life.”

Eventually, Morgan and Harris decided to check into a motel. Morgan obtained the room key, and he and Harris, who was holding the gun to Warner’s back, forced Warner into the motel room. The two began making telephone calls from the room. During one of the calls, Harris put the gun down, and Warner attempted to escape. As Warner ran for the door, Harris shot the gun twice. Warner turned back toward Harris and tried to wrestle the gun from him. Morgan, who had briefly left the room, returned and bit Warner. At that point, Morgan gained control of the gun and forced Warner outside the room, toward the car. When they arrived at the car, Morgan shot Warner in the leg. Morgan and Harris then fled in the car.

Based on this evidence, a rational jury could find Morgan guilty beyond a reasonable doubt of armed robbery, kidnapping, aggravated assault, and possession of a firearm during the commission of a crime. We note that Morgan testified at trial that he did not rob, kidnap, or assault Warner. On appeal, he claims that because his testimony, as well as other evidence at trial, conflicted with and undermined Warner’s version, Warner “was not credible and no rational trier of fact could have relied upon his version of these events to support a conviction [on] these charges.” As discussed above, however, the issue of witness credibility rests solely with the jury. Jurors clearly resolved the evidentiary conflicts against Morgan, and we will not reverse that determination on appeal.

2. Morgan also argues that the trial court erred in not severing the trials of the two defendants. In ruling on a motion for severance, the trial court must consider: “(1) whether the number of defendants creates confusion as to the law and evidence to be applied to each; (2) whether a danger exists that evidence admissible against one defendant might be considered against the other notwithstanding instructions to the contrary; and (3) whether the defenses are antagonistic to each other or each other’s rights.” The ruling on such a motion falls within the trial court’s sound discretion, and we will not reverse that ruling absent an abuse of discretion.

As an initial matter, Morgan has not shown that he moved for a severance in this case. Just before opening arguments, Harris’ counsel informed the court that Harris had decided to testify and that his testimony might be antagonistic to Morgan. Harris’ counsel stated that this situation “may lend itself to either [Morgan’s counsel] moving for a severance, or me, on behalf of my client, moving for a severance.” Morgan’s counsel asserted that he was “blindsided” by this development, but never asked for a severance and ultimately stated “[w]e will just proceed.” And although Harris’ counsel stated that a severance might be appropriate, Morgan did not join in that statement. Morgan, therefore, has waived any complaint he may have had to the joint proceeding.

Furthermore, even if Morgan properly preserved this argument for review, the trial court did not abuse its discretion in refusing to sever the defendants’ trial. At trial, Morgan claimed that Warner was accidentally shot during a struggle for the gun after a drug deal between Warner and Morgan turned “sour.” Morgan testified that he, Warner, and Harris went to the motel on October 3, 2000, as part of a drug transaction. According to Morgan, Warner pulled a gun during the transaction and shot at Morgan. Morgan managed to get his hands on the gun, but Warner jumped him. As he and Warner wrestled for the gun, it went off, and Morgan and Harris fled the scene.

Morgan now argues that Harris’ trial testimony was antagonistic to this explanation of events. Upon review, however, we do not find Harris’ testimony particularly antagonistic to Morgan. Certainly, portions of the testimony conflicted with Morgan’s version. Harris testified, for example, that he was not with Morgan on October 3, 2000, and had never seen Warner before the trial. Yet, Harris’ testimony also provided corroboration for Morgan’s explanation. According to Harris, Morgan told him after the incident that Warner pulled a gun during an argument over drugs, they started struggling, and Morgan “went for the gun, and accidentally shot [Warner].” Harris’ testimony thus supported Morgan’s claim that Warner initially had the gun and was shot as the two men struggled over it.

Finally, assuming the conflicts between Morgan’s version and Harris’ testimony created antagonistic defenses, that antagonism does not, in and of itself, require severance. Instead, Morgan “must demonstrate a clear showing of prejudice and a consequent denial of due process in the absence of severance.” Morgan has made no effort to meet this burden and simply asserts, without argument or citation to the record, that the trial court committed “harmful error.” Under these circumstances, we find no error in the trial court’s refusal to sever the trial.

3. In his last enumeration of error, Morgan claims that the trial court erred in allowing the prosecutor to make improper closing arguments to the jury. Again, we find no error.

(a) During his closing argument, the prosecutor stated: “[The defense has] the right to subpoena witnesses, just like we do.” Morgan’s counsel objected, asserting that the argument improperly shifted the burden of proof to Morgan. The trial court responded by instructing the jury that

there is no burden on the defendant to prove his innocence, and the burden never shifts to the defendant to prove his innocence; however, the defense is entitled to subpoena wit- • nesses, if they so desire. And the District Attorney has the right to comment on the fact that they do have the right to subpoena witnesses, the same as the State.

Morgan’s counsel raised no further objection.

Morgan now argues that the trial court erroneously permitted the State, through its argument, to shift the burden of proof to him at trial. Morgan, however, failed to preserve this issue for appeal. Following Morgan’s objection at trial, the court gave a curative instruction that directly addressed his concern about burden shifting. Morgan did not renew his objection or move for a mistrial after those instructions. “If the trial court’s curative instructions were not sufficient, [Morgan] should have sought additional relief.” By failing to do so, he waived appellate review.

(b) Morgan also argues that, during closing argument, the trial court improperly permitted the prosecutor to read aloud from a pos-terboard various legal principles relating to self-defense. Morgan’s counsel objected to this practice, stating: ‘Your honor, he’s reading a lot of law here, and I think he is misstating self defense. ... I would just ask the Court to tell the jury that they are supposed to listen to the law from the Bench.” The trial court did just that, informing the jury that “the Court will instruct you what the law is,” and Morgan’s counsel did not object further.

Decided April 12, 2002.

Ellis R. Garnett, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Once again, Morgan failed to preserve this issue for review. Morgan raised an objection and specifically asked for curative instructions, and the trial court complied. By failing to object further or move for mistrial following these instructions, Morgan waived the claimed error.

We also note that the trial court instructed the jury on the self-defense principles that the prosecutor was discussing when Morgan objected. “The practice of ‘reading the law’ has been abolished in Georgia, but ‘counsel may still discuss, or even argue, during closing arguments the law that will be included in the court’s charge.’ ” And although Morgan baldly asserts that the prosecutor misstated the law, he offers no insight into how — in his view — the prosecutor misstated any legal principle. Furthermore, the trial transcript includes only part of the prosecutor’s argument on this point, and Morgan has provided no record reference for the visual aids used by the prosecutor, which do not appear to be in the record. Under these circumstances, this claim of error presents no basis for reversal.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       See Askew v. State, 248 Ga. App. 230 (1) (546 SE2d 15) (2001).

       (Punctuation omitted.) Id.

       See Reese v. State, 241 Ga. App. 350-351 (1) (526 SE2d 867) (1999).

       See Askew, supra.

       See id.; Reese, supra.

        London v. State, 247 Ga. App. 618, 620 (1) (544 SE2d 525) (2001).

       See id.

       See Smith v. State, 267 Ga. 372, 373 (2) (477 SE2d 827) (1996).

       See id. at 373-374.

       Id. at 373.

       See id. at 373-374; see also Jones v. State, 225 Ga. App. 673, 676-677 (4) (484 SE2d 702) (1997); Walden v. State, 170 Ga. App. 880 (1) (318 SE2d 676) (1984).

       (Punctuation omitted.) Wells v. State, 243 Ga. App. 629, 631 (3) (534 SE2d 106) (2000).

       See id.; see also Fowler v. State, 251 Ga. App. 787 (1) (554 SE2d 808) (2001); Seidenfaden v. State, 249 Ga. App. 314, 316 (1) (547 SE2d 578) (2001).

       See Wells, supra.

        Kirkland v. State, 271 Ga. 217, 219 (3) (518 SE2d 687) (1999).

       See Court of Appeals Rule 27 (c) (2) (unsupported claim of error treated as abandoned); Carswell v. State, 251 Ga. App. 733, 736 (3) (555 SE2d 124) (2001) (“[W]here the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court. . . . When this is not done, there is nothing for the appellate court to review”) (punctuation omitted).


text:
    A02A0750.
    NOLAN v. THE STATE.
    (564 SE2d 464)
   Ruffin, Judge.

Following a bench trial, the trial court found Timothy Nolan guilty of following a vehicle too closely, driving with a suspended license, and failing to report an accident with injury and/or damage. On appeal, Nolan challenges the sufficiency of the evidence. Nolan also contends that he did not knowingly and voluntarily waive his right to a jury trial. As the evidence was sufficient, we affirm the convictions. We nonetheless remand the case to the trial court for an evi-dentiary hearing on Nolan’s waiver of a jury trial.

1. On appeal from a criminal conviction, Nolan no longer enjoys a presumption of innocence, and we view the evidence in the light most favorable to the verdict. We neither weigh the evidence nor determine witness credibility, but simply ascertain whether the evidence is sufficient under the standard in Jackson v. Virginia.

Viewed in this light, the evidence shows that on June 28, 2001, Nedav Kupiec was driving on the highway through downtown Atlanta during a morning rush hour. Because of the heavy traffic, Kupiec was driving slowly, and a white pickup truck struck him from behind, causing approximately $3,500 in damage to his car. Kupiec saw the driver, whom he described racially, and said he was “middle age, and stocky.” Kupiec also saw that there was a young, female passenger in the truck. Kupiec motioned the driver to stop, “but he just kept driving. He kept switching lanes. He was driving too aggressive for me.” So Kupiec wrote down the license plate number of the truck and its make and model.

Kupiec reported the accident to Trooper R. H. Lee, who discovered that the pickup truck was registered to Timothy and Rose Nolan. Lee drove by the address listed on the truck’s registration, but did not see the truck. Lee obtained an arrest warrant for Nolan, which was served by Trooper J. Henry. When Henry arrested Nolan, he found the pickup truck parked in Nolan’s driveway. Henry took pictures of the truck, which showed damage to the front end.

At trial, Phyllis Holloway, an investigator from the solicitor’s office, testified that she ran a driver’s history on Nolan, which showed that his driver’s license had been suspended “multiple” times and was, in fact, currently suspended.

Nolan also testified and admitted that he owned the truck, but claimed that he has six or seven similar trucks, which he uses for a commercial landscape company. Nolan further testified that he has seven supervisors, any one of whom could have been driving the truck. According to Nolan, he “tried to trace who was driving that day, but [he] couldn’t trace who was driving.” Nolan maintained that he was not the driver and claimed that he did not “see any physical damage [to the truck] other than normal everyday wear and tear.” Kupiec testified that, although Nolan looked like the driver of the truck, he could not be certain.

On appeal, Nolan asserts that the circumstantial evidence that he was driving is insufficient to sustain his conviction. The fact that the evidence was circumstantial, however, does not mean that it was insufficient. “ ‘To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.’ ” The State need not remove every possibility that Nolan is innocent, but must

exclude any reasonable hypothesis showing innocence. Where the defendant offers an explanation of circumstantial facts or an alternative hypothesis of events, the reasonableness of that explanation is for the factfinder. Because the factfinder has heard the witnesses and observed them testify, it is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is an appellate court. Thus, this court will not disturb its finding unless the verdict is insupportable as a matter of law.

Here, the evidence showed that Nolan had a suspended license, which would certainly give him a motive to flee the scene of an accident. The evidence also shows that Nolan, who admitted owning the truck, generally resembled the man that Kupiec saw driving the truck. Although Nolan testified that he was not the driver, the trial court, as the factfinder, was authorized to reject his self-serving testimony. Despite visible damage to the truck, Nolan maintained that the truck was not damaged, which undermined his credibility. Finally, Nolan failed to provide any real clue as to which of his employees might have been driving the truck, which clearly influenced the trial court’s decision. Under these circumstances, the evidence was sufficient to sustain Nolan’s convictions.

2. In his second enumeration of error, Nolan contends that he “did not knowingly and voluntarily waive his right to a jury trial.” Prior to trial, the prosecutor stated on the record, “before we join issue, I want to specifically ask Mr. Nolan if he waives his right to a jury trial and wishes to proceed with a bench trial this morning.” Nolan’s attorney responded: “He does waive his right to a jury trial, Your Honor.” On appeal, Nolan contends that this exchange was insufficient because it did not show that he knowingly and intelligently participated in the waiver, as required by Wooten v. State.

In Wooten, this Court noted that after a defendant challenges the waiver of his right to a jury trial, the burden shifts to the State to show that the waiver was intelligently and voluntarily entered. The State accomplishes this “either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent (or incomplete) record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.”

When a defense lawyer answers on behalf of his client, we have found that it constitutes an incomplete record, which fails to demonstrate the defendant’s participation in the waiver process. Accordingly, we must remand the case to the trial court for a hearing on this issue to complete the record.

In its brief, the State points out that the same attorney that waived Nolan’s right to a jury trial is representing Nolan on appeal. Like the State, we are troubled by this rather anomalous situation. Implicit in Nolan’s enumeration of error is the contention that his attorney did not inform him of his right to a jury trial, thus raising questions about the attorney’s effectiveness. We further note, however, that the attorney never actually admits that he failed to discuss waiver with his client. If the attorney did discuss the issue with Nolan, this enumeration of error is misleading. Moreover, if the attorney did discuss the issue with his client, this appeal is pointless, as such fact surely will be disclosed during the hearing, which the trial court will conduct on remand. Accordingly, this case is remanded for this purpose.

Judgment affirmed and case remanded with direction.

Pope, P. J., and Barnes, J., concur.

Decided April 12, 2002.

Patterson & Patterson, Jackie G. Patterson, for appellant.

Joseph J. Drolet, Solicitor-General, Gerald Mason, Assistant Solicitor-General, for appellee.

       See Swanger v. State, 251 Ga. App. 182 (554 SE2d, 207) (2001).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Swanger, supra.

        Carter v. State, 246 Ga. App. 891, 892-893 (1) (b) (543 SE2d 42) (2000).

         (Punctuation omitted.) Id. at 893.

        Matheson v. State, 249 Ga. App. 200, 201 (1) (547 SE2d 774) (2001).

       See Wilson v. State, 233 Ga. App. 327, 328-329 (1) (503 SE2d 924) (1998) (physical precedent only).

       162 Ga. App. 719 (293 SE2d 11) (1982).

       See id. at 720.

       (Punctuation omitted.) Lark v. State, 190 Ga. App. 821, 822 (3) (380 SE2d 505) (1989). See also Hill v. State, 181 Ga. App. 473 (352 SE2d 651) (1987).

       See id.; Wooten, supra; Sims v. State, 167 Ga. App. 479 (1) (306 SE2d 732) (1983).

       See Lark, supra; Wooten, supra.


author: Ellington, Judge.

text:
    A00A1823.
    KIRKLAND v. THE STATE.
    (564 SE2d 485)
   Ellington, Judge.

A Fulton County jury convicted James Donald Kirkland of three counts of burglary, OCGA § 16-7-1; three counts of armed robbery, OCGA § 16-8-41; one count of aggravated assault, OCGA § 16-5-21; two counts of kidnapping, OCGA § 16-5-40; and two counts of possession of a firearm during the commission of a crime, OCGA § 16-11-106. Kirkland appealed to this court, and we affirmed in Kirkland v. State, 247 Ga. App. 526 (543 SE2d 791) (2000).

1. The Supreme Court granted certiorari and reversed our finding in Division 6 (b) that Kirkland’s right to effective counsel was not violated by his attorney’s failure to remove from the venire owners of stock in the corporation which owns the premises allegedly burglarized. Kirkland v. State, 274 Ga. 778 (560 SE2d 6) (2002). Accordingly, our ruling in Kirkland v. State, 247 Ga. App. at 532 (6) (b) is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

2. Of the portions of our opinion which were not affected by the Supreme Court’s judgment, Divisions 1, 4, and 5 (b) addressed issues which may be raised again on retrial. Accordingly, we hereby reinstate Divisions 1, 4, and 5 (b) of our original opinion.

3. Kirkland’s other enumerations of error are moot or not likely to recur on retrial.

Judgment reversed.

Andrews, P. J., and Ruffin, J., concur.

Decided April 15, 2002.

Brian Steel, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.


author: Eldridge, Judge.

text:
    A02A0330.
    MCCARTER v. LA HACIENDA CONDOMINIUM ASSOCIATION, INC.
    (564 SE2d 483)
   Eldridge, Judge.

Jeanette McCarter is the owner of a condominium in Gwinnett County and is a member of La Hacienda Condominium Association, Inc. She fell behind in paying the $252.50 monthly Association fee as well as an additional monthly $121.44 special assessment, which totaled $4,183, and the Association obtained a consent judgment against her for $1,828.73, which was the then owed fees and special assessment. On December 21, 1998, the Association brought a wage garnishment against her for such sums, but McCarter traversed the garnishment, which was denied on February 2, 1999. McCarter sued the Association in this action for slander and for recoupment of over-payments; the Association countersued for further delinquent fees, interest, expenses of litigation, and attorney fees. The Association moved for summary judgment on both its counterclaim and McCar-ter’s claims, which the trial court granted. The Association contends that it was entitled to summary judgment, because there had been two judicial determinations of the amount McCarter owed. However, the two judicial determinations of such sums owed could only have res judicata effect as to the debt incurred prior to the January 30, 1998 consent order along with any sums which became due prior to the June 2, 1998 entry of a consent judgment. Since additional fees and assessments continued to accrue to the present, then an issue of the allocation of payments between prior debts and current debts must be made, which prevents res judicata from totally precluding consideration of the debts. Finding no error, we affirm without considering res judicata.

1. McCarter contends that the trial court erred in granting the Association’s motion for summary judgment. We do not agree.

By affidavit, McCarter claims that she overpaid the Association by $4,430.78 and that she paid it $12,704.42, “as shown by various canceled checks which will be introduced into evidence at trial.” While she attached to her affidavit a summary of her alleged payments and photocopies of the faces of some checks payable to the Association and of the back of some cancelled checks, the affidavit neither identified the summary and the photocopies of checks nor accounted for the original absent checks. If the photocopies were made by McCarter’s bank from microfilm because the originals had been destroyed or lost, then the bank should have certified that such were exact copies made from microfilm kept in the ordinary course of business. If the photocopies of checks were of the original checks in McCarter’s custody and control but now lost or destroyed, then the affidavit should have stated this. However, if McCarter had the original checks in her custody and control, then she should have attached them to the original affidavit filed in the trial court as evidence in opposition to the motion.

Affidavits in opposition to motions for summary judgment must conform to OCGA § 9-11-56 (e) as to the rules of evidence, which is the “codification of the common law requirements as to affidavits.” McPherson v. McPherson, 238 Ga. 271, 272 (1) (232 SE2d 552) (1977). The affidavit failed to lay a proper foundation for the admission of copies of checks by authenticating and identifying them by the affiant, and there was no bank certification of the checks; further, the affidavit failed to account for the original checks’ absence, which would allow photocopies to be admissible as secondary evidence. Thus, the check copies violate the best evidence and hearsay rules. Further, the check copies were not established as business records as an exception to the hearsay rule. OCGA §§ 24-3-14; 24-5-4; Clark v. State, 271 Ga. 6, 9-11 (5), (6) (515 SE2d 155) (1999); U B. Vehicle Leasing v. Vision Intl., 224 Ga. App. 611-612 (2) (481 SE2d 597) (1997); Thomasson v. Trust Co. Bank, 149 Ga. App. 556, 557-559 (254 SE2d 881) (1979); cf. Val Preda Motors v. Nat. Uniform Svc., 195 Ga. App. 443, 444 (2) (393 SE2d 728) (1990) (debtor’s affidavit denying debt raised a material issue of fact either as fact or opinion where creditor did not attach business records to establish the debt). Consequently, the allegations and conclusions made by McCarter in her affidavit are inadmissible as statements of specific facts and were unsupported by checks and payment summary, as these were in an inadmissible form. See generally Estate of Patterson a Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 707 (1) (505 SE2d 232) (1998) (medical expert’s affidavit did not have medical records attached to support his opinion); Pratt v. Tri City Hosp. Auth., 193 Ga. App. 473 (388 SE2d 69) (1989) (must have records attached and authenticated when relied upon in the affidavit). An unsupported conclusion without specific facts to support it is a bare conclusion and “cannot be considered as evidence.” McPherson v. McPherson, supra at 272. Thus, only evidence admissible in the trial court will be considered by either the trial court or this Court on de novo review of the grant of summary judgment. Dews v. Ratterree, 246 Ga. App. 324, 325-326 (540 SE2d 250) (2000); Roth v. Connor, 235 Ga. App. 866, 872 (4) (510 SE2d 550) (1998). Stripped of the attached exhibits and the conclusions, McCarter’s affidavit fails to create a material issue of fact that she had overpaid or even paid the fees, interest, and costs that she owed to the Association.

Decided April 15, 2002.

Zachary & Segraves, Kenneth L. Levy, for appellant.

Weissman, Nowack, Curry & Wilco, Derek W. Johanson, for appellee.

In contrast, the Association introduced the affidavits of the Association’s property manager, who identified the attached declaration of covenants, bylaws, and records of accounts as to McCarter, which showed that a balance was due through December 31, 1999, of $5,641.98. The Association’s attorney gave an affidavit as to the attached judgment, garnishment, traverse of garnishment, court order, costs, and legal fees of $2,174.97, with billing statements attached. Thus, the Association, by the evidence produced, was entitled to prevail, because there is no evidence sufficient to create a jury issue as to payment, and the evidence shows nonpayment. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Bandy v. Mills, 216 Ga. App. 407 (454 SE2d 610) (1995).

2. McCarter contends that the trial court erred in granting attorney fees subject to the finder of fact’s determination of the reasonableness of such fees. We do not agree.

McCarter contends that “[t]he trial court erred in this ruling [(finding attorney fees in some amount)] as the Association’s right to collect attorney’s fees is premised upon the Association’s underlying right to collect unpaid assessments and monthly [Association fees.” In Division 1, we found that the trial court did not err in finding that the Association had a right to collect unpaid assessments and monthly association fees. Thus, Division 1 controls this enumeration as well.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.


text:
    A02A0784.
    ODUM v. THE STATE.
    (564 SE2d 490)
   Eldridge, Judge.

Following a bench trial in the City Court of Atlanta upon charges brought by using the Uniform Traffic Citation, Summons Form, defendant William Odum was convicted of speeding 99 mph in a 55-mph zone in violation of OCGA § 40-6-181 and reckless driving in violation of OCGA § 40-6-390. He was sentenced to fines totaling $600 and ordered to attend defensive driving school. The defendant appeals, contending that the city court erred in admitting evidence of his speed for noncompliance with OCGA § 40-14-4, i.e., the State neither proved that the Federal Communications Commission licensed the City of Atlanta Police Department to use the laser speed detection device used to clock his speed nor showed that the Department of Public Safety (“DPS”) certified the technician who calibrated the device before it was placed in service. In further claims of error, the defendant challenges the sufficiency of the evidence supporting his reckless driving conviction and contends that his convictions should be reversed in that he did not knowingly and intelligently waive his right to a jury trial. Finding the defendant’s claims of error to be without merit, we affirm. Held:

1. Defendant’s OCGA § 40-14-4 defective foundation claims to the contrary notwithstanding, the admissibility of evidence obtained from laser speed detection devices is controlled by OCGA § 40-14-17. Van Nort v. State, 250 Ga. App. 7, 8 (1) (550 SE2d 111) (2001); see also Johnson v. State, 146 Ga. App. 277, 279-280 (2) (246 SE2d 363) (1978) (legislature has power to modify rules of evidence). OCGA § 40-14-17 pertinently requires that the State introduce a certified copy of the DPS’s list of approved laser speed detection devices. Given this foundation alone, independent of those required under OCGA § 40-14-4 as to speed determined by radar detection devices, evidence of speed measured by an “approved” laser speed detection device is admissible. Van Nort v. State, supra. We do not reach the further question of whether the State complied with OCGA § 40-14-17 in that this issue has not been enumerated and is not before us on appeal. OCGA § 5-6-40; Hall v. State, 232 Ga. App. 664, 665 (502 SE2d 764) (1998); MacDonald v. MacDonald, 156 Ga. App. 565, 567 (1) (c) (275 SE2d 142) (1980). “Matters not enumerated as error will not be considered on appeal.” Rider v. State, 226 Ga. 14, hn. 2 (172 SE2d 318) (1970).

2. The arresting officer testified that while driving 99 mph in a 55-mph speed zone, the defendant twice changed lanes without signaling in an effort to evade pursuit. Viewed in the light most favorable to the verdict, this evidence showed a sufficient disregard for the safety of the arresting officer and the other drivers on the roadway to authorize the jury to find beyond a reasonable doubt that the defendant was guilty of reckless driving. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA § 40-6-390 (a) (“Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving.”); Moore v. State, 234 Ga. App. 333, 334 (3) (d) (506 SE2d 685) (1998).

3. By his final enumeration of error, the defendant for the first time on appeal claims that he did not knowingly and intelligently waive his right to a jury trial. It is well settled that “[a] criminal defendant must personally and intelligently participate in the waiver of his right to a jury trial. Pirkle v. State, 221 Ga. App. 657 (472 SE2d 478) (1996), citing Patton v. United States, 281 U. S. 276 (50 SC 253, 74 LE 854) (1930).” Whitaker v. State, 244 Ga. App. 241, 243 (4) (535 SE2d 283) (2000). Where the purported waiver of this right is challenged

the State bears the burden of showing the waiver was made both intelligently and voluntarily, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly, voluntarily, and intelligently made.

(Citation and punctuation omitted.) Jones v. State, 212 Ga. App. 676, 679 (2) (442 SE2d 908) (1994).

The record shows that the defendant “checked” and placed his initials opposite statements by which he pled not guilty and indicated that he did so “knowingly and willfully waiving [his] right to a jury trial.” These actions appeared over his signature, the signature of trial defense counsel, and that of the prosecutor. Although the defendant’s waiver of his right to a jury trial was not obtained in open court, such waiver was not required; neither was it required to conform to any approved format. Whitaker v. State, supra at 244; Wooten v. State, 162 Ga. App. 719, 720 (293 SE2d 11) (1982). Further, we presume regularity in court proceedings, Vaughan v. Buice, 253 Ga. 540 (322 SE2d 282) (1984), and “[t]he Sixth Amendment relies on the legal profession’s maintenance of standards sufficient to justify the law’s presumption that counsel will fulfill the role in the adversary process that the Amendment envisions. Strickland v. Washington, 466 U. S. 668, 688 (104 SC 2052, 2064, 80 LE2d 674) (1984).” (Punctuation omitted.) Brooks v. State, 243 Ga. App. 246, 249 (1) (a) (iii) (532 SE2d 763) (2000). There is here no claim to the contrary. The defendant did not question his waiver of a jury trial in the trial court. Under these circumstances, we conclude that the evidence shows that the defendant personally, voluntarily, knowingly, and intelligently participated in the decision to waive a jury trial in this case. Compare Bostic v. State, 252 Ga. App. 242, 243 (1) (555 SE2d 894) (2001) (trial court announced defendant’s waiver of a jury trial and trial defense counsel alluded to waiver at sentencing); compare also Whitaker v. State, supra (prosecutor announced defendant’s waiver of a jury trial and unsigned handwritten notation purporting to show the same). Accordingly, this claim of error is likewise without merit.

Decided April 15, 2002.

Patterson & Patterson, Jackie G. Patterson, for appellant.

Joseph J. Drolet, Solicitor-General, Michael Y. Doko, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Smith, P. J, and Ellington, J., concur.

       The City Court of Atlanta under a population bill is a constitutional court with jury jurisdiction; Ga. L. 1967, p. 963, further, by amendment, it has some concurrent jurisdiction with the state court. Ga. L. 1996, pp. 627, 632, § 10. Appeals from a constitutional city court are within the jurisdiction of this Court where conviction is under OCGA § 40-13-1 et seq. OCGA § 5-6-34 (a); Parnell v. City of Atlanta, 173 Ga. App. 602-603 (327 SE2d 569) (1985); Williams v. City of Atlanta, 135 Ga. App. 765, 766 (219 SE2d 17) (1975).

       “Generally, claims of error not objected to in the trial court may not be raised for the first time on appeal, except for certain constitutional issues, among which is whether the defendant waived his constitutional right to a jury trial. [Cit.]” Whitaker v. State, 244 Ga. App. 241, 243 (4) (535 SE2d 283) (2000).


text:
    A02A1093.
    GORDILLO v. THE STATE.
    (564 SE2d 486)
   Eldridge, Judge.

A Cobb County jury found Guillermo Gordillo guilty as a party to the crime of aggravated battery for Gordillo and co-defendant Omar Gonzales’ joint attack on a fellow inmate at the Cobb County Adult Detention Center, wherein Gordillo forced the victim into his cell by beating him with his fists, thereby enabling Gonzales to beat the victim with a broom handle “until [he] was almost dead”; the attack left the victim partially paralyzed and brain damaged. Without challenging the sufficiency of the evidence against him, Gordillo appeals and argues that the trial court improperly sustained a State’s objection to Gordillo’s opening statement; that the trial court erred by abridging his right to cross-examine two State’s witnesses; and that he received ineffective assistance of counsel at trial. Upon review of these claims, we find each meritless and affirm Gordillo’s conviction.

1. We reject the claim that the trial court erred in sustaining objection to Gordillo’s opening statement when Gordillo attempted to, as he puts it by brief, “state, illustrate, and demonstrate” to the jury that he was guilty of no more than the lesser included offense of simple battery. “Defense counsel’s statement shall be restricted to expected proof by legally admissible evidence, or the lack of evidence.” The trial court had neither instructed the jury on the offense of simple battery nor decided that the evidence warranted such instruction. Accordingly, Gordillo’s attempt to argue the law during opening statement was improper, and the trial court’s ruling prohibiting such argument was not error.

2. Both the victim and another inmate at the Cobb County Adult Detention Center testified at trial on behalf of the State. Prior to the start of trial, the State moved in limine to prevent Gordillo from cross-examining these two witnesses about the offenses that resulted in their incarceration at the center, unless counsel introduced a certified copy of conviction as to the offenses. Gordillo assigns error to the trial court’s granting of the State’s motion in limine. Citing the Supreme Court of Georgia case of Hines v. State Gordillo claims his right to cross-examine the two witnesses regarding their motivation to testify was abridged by the court’s ruling. We do not agree.

(a) Hines dealt with the ability of a defendant to cross-examine a State’s witness about pending criminal charges in order to explore whether his testimony might be biased in order to curry favor with the State regarding the pending charges. Here, there was no evidence of pending charges with regard to any witness so as to make Hines applicable. The inmate-witnesses in the instant case had already been convicted, sentenced, and were serving those sentences on the offenses about which Gordillo wished to cross-examine them. Absent pending charges, there must be some evidence of a deal between a witness and the State in order to make such questioning relevant, and “where appellant failed to prove either that there had been a deal or that [the witnesses] had any expectation of a deal, it was not error for the trial court to refuse to allow appellant to attempt to impeach [them] with impermissible character evidence. OCGA § 24-9-84.”

(b) Moreover, from our review of the transcript, it does not appear that Gordillo’s attorney ever desired to cross-examine the State’s two inmate-witnesses about bias or pending charges. Instead, counsel wanted to impeach the character of the witnesses with cross-examination about the specific acts that resulted in their incarceration. Such impeachment dealing with specific bad acts is improper, and the trial court so ruled; the court advised counsel that a certified copy of conviction of a crime of moral turpitude must be tendered in order to conduct such impeachment.

Gordillo’s counsel also sought to introduce specific bad acts of the victim in order to demonstrate the victim’s “propensity for violence.” However, no notice was served with regard to such intent; further, no attempt was made to make out a prima facie case of justification so as to warrant the admission of evidence showing the victim’s propensity for violence, if indeed such evidence existed. Accordingly, the trial court properly ruled out evidence of specific bad acts absent proper foundation, and Gordillo’s contentions to the contrary are meritless.

3. In his next six enumerations of error, Gordillo claims he received ineffective assistance of counsel in that his attorney (a) failed to preserve the Hines issue discussed in Division 2, supra; (b) failed to secure the attendance of co-defendant Gonzales as his main defense witness; and (c) failed to object to the State’s use of non-noticed aggravating circumstances during sentencing. Gordillo additionally claims: (d) that while perhaps the prior three deficiencies do not demonstrate ineffective assistance of counsel in and of themselves, the “aggregate effect” of these deficiencies demonstrates such violation; and (e) that while perhaps these three deficiencies fail to demonstrate a violation of the United States Constitution, they show a violation of his Due Process rights under the Constitution of the State of Georgia, which Gordillo contends “guarantee [s] greater rights and provide [s] more extensive protections of individual liberty than the corresponding portions of the U. S. Constitution.”

At the outset, we note that a transcript of a hearing on Gordillo’s claims of ineffective assistance of counsel is not before us. Neither does Gordillo cite nor make reference to any such transcript in his brief. Accordingly, it does not appear that he obtained the testimony of his trial attorney with regard to the instant claims of ineffective assistance of counsel. “The burden is on the party alleging error to show it affirmatively by the record, and when [he] does not do so, the judgment is assumed to be correct and must be affirmed.”

However, because of the extensive time lapse between conviction and motion for new trial in this case, we have reviewed the substance of Gordillo’s claims and find them meritless. In that regard,

[t]o establish that trial counsel was ineffective, appellant must show (1) that counsel’s performance was deficient, and (2) that the deficient performance prejudiced his defense such that there is a reasonable probability that, but for the unprofessional conduct, the outcome of the trial would have been different. As always, there is a strong presumption that trial counsel’s assistance was adequate and that counsel’s decisions were made within the bounds of reasonable professional judgment.

(a) Gordillo’s first claim of ineffective assistance of counsel based on the failure to raise an issue under Hines v. State is decided adversely to him in Division 2 (a), supra.

(b) Gordillo’s second claim of ineffective assistance is that his attorney failed to secure the attendance of the “main witness” for the defense, co-defendant Gonzales, who earlier pled guilty to the instant offense. In attempting to show error and prejudice, Gordillo asserts that Gonzales would have testified (i) that the victim was the aggressor; (ii) that Gonzales — not Gordillo — beat the victim with the broom handle; and (iii) that Gordillo did not participate in the altercation.

Notably, Gordillo’s current attorney also did not secure Gonzales’ testimony in a hearing on a motion for new trial. So, we do not, in fact, know to what Gonzales might have testified. Instead, Gordillo directs our attention to the transcript of co-defendant Gonzales’ guilty plea and asks this Court to inferentially find that Gonzales would have testified as asserted above. Our review of the guilty plea transcript shows no basis for the inferences of error and prejudice Gordillo asks us to make.

(i) While, during the guilty plea, Gonzales stated to the court that the victim hit him first, the State disputed that assertion and informed the court that Gonzales was the initial aggressor. When asked if he wished to go to trial to assert a justification defense, Gonzales demurred and entered his plea of guilty on the State’s version of events, which the trial court accepted. From such admission of guilt — and in the absence of any evidence to the contrary — we find no basis for Gordillo’s claim that Gonzales would have testified that the victim was the aggressor, or that such testimony would have altered the verdict considering Gonzales’ admission to the contrary hy virtue of his guilty plea. Accordingly, Gordillo has not established either error on the part of his attorney for failing to call Gonzales as a witness nor prejudice arising therefrom.

(ii) The evidence introduced at trial showed that Gonzales, not appellant Gordillo, actually wielded the broom handle. All the State’s eyewitnesses testified to this fact. Accordingly, the failure to call Gonzales to testify about a fact that was simply cumulative of other evidence properly admitted cannot demonstrate error or prejudice on the part of Gordillo’s trial attorney.

(iii) We decline Gordillo’s invitation to find that, because Gordillo’s part in the incident was not mentioned during Gonzales’ guilty plea, such establishes that Gonzales would have affirmatively testified that Gordillo “did not participate in the altercation.” We will not infer such explicit fact from a silent record. Accordingly, the instant claim is without evidentiary basis and does not establish either attorney error or prejudice therefrom.

(c) Finally, Gordillo contends his trial attorney was ineffective for failing to object to the State’s use of aggravating circumstances during sentencing, without giving notice of such to the defense. This claim is factually meritless. The State’s “Disclosure Certificate” specifically informed Gordillo in capital letters that “ALL CONVICTIONS WILL BE USED IN AGGRAVATION OF PUNISHMENT PURSUANT TO OCGA § 17-10-2,” and the State simultaneously served upon Gordillo a copy of his Georgia Crime Information Center printout showing his 1995 Cobb County conviction for aggravated battery, the offense introduced in aggravation of sentence. In addition, the State served upon Gordillo a notice of intent to introduce the prior aggravated battery conviction as a similar transaction at trial. While such similar transaction notice did not mention sentencing,

it did provide appellant with necessary details regarding the prior convictions which, in combination with [prior notification of intent to use convictions in aggravation of sentence and service of appellant’s GCIC printout] would fulfill the purpose of the notification requirement by enabling appellant to examine his record to determine if the convictions are in fact his, if he was represented by counsel, and any other defect which would render such documents inadmissible during the pre-sentencing phase of the trial.

Decided April 15, 2002

Shandor S. Badaruddin, for appellant.

Patrick H. Head, District Attorney, Dana J. Norman, Amy H. McChesney, Amelia G. Pray, Assistant District Attorneys, for appel-lee.

As Gordillo received notice of the State’s intent to use his prior aggravated battery conviction in aggravation of sentence, there was no basis for his attorney to object when the State did just that. The “[failure to make a meritless objection cannot be evidence of ineffective assistance.”

(d) Because we find the above claims of attorney error to be factually meritless and without prejudicial effect, the “aggregate effect” of Gordillo’s ineffective claim — comprising the three deficiencies alleged above — has no more strength than the sum of its parts. Accordingly, neither attorney error nor prejudice has been established by Gordillo’s “aggregate effect” argument.

(e) We likewise decline to find that the Constitution of the State of Georgia authorizes a result different from that of the United States Constitution when addressing an ineffective assistance of counsel claim. The applicable standard is found in the two-prong Strickland v. Washington analysis under which a defendant has the burden to show both attorney error and prejudice so that the validity of the outcome of the trial is called into question. In the absence of one or both prongs, the United States and the Georgia Constitutions authorize a finding that a defendant’s Sixth Amendment right to counsel has not been abridged.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

       Uniform Superior Court Rule 10.2.

       249 Ga. 257, 259 (2) (290 SE2d 911) (1982).

        Wright v. State, 266 Ga. 887, 889 (471 SE2d 883) (1996).

        Strickland v. State, 257 Ga. 230, 232-233 (357 SE2d 85) (1987).

        Ailstock v. State, 159 Ga. App. 482, 486 (3) (283 SE2d 698) (1981); Paradise v. State, 212 Ga. App. 166, 169 (3) (441 SE2d 497) (1994).

        Chandler v. State, 261 Ga. 402, 407-408 (3) (405 SE2d 669) (1991); Strong v. State, 264 Ga. 837 (2) (452 SE2d 97) (1995).

       (Citation and punctuation omitted.) Smith v. State, 224 Ga. App. 819, 821 (481 SE2d 896) (1997); Foreman v. State, 200 Ga. App. 400, 401 (3) (408 SE2d 178) (1991).

       Such five-year lapse was apparently caused by the failure to transmit the proceedings below to this Court, which failure the record reveals was due to “the stress of business in this office [clerk’s office] and not due to any fault on the part of the Attorney for the Appellant.”

       (Footnotes omitted.) Washington v. State, 274 Ga. 428, 430 (2) (554 SE2d 173) (2001).

       See Wharton v. Anderson, 270 Ga. 22, 24 (2) (504 SE2d 670) (1998) (tendering a guilty plea necessarily incorporates a defendant’s voluntary admission of the existence of the facts supporting the elements of the offense to which he pleads); Thorp v. State of Ga., 217 Ga. App. 275 (457 SE2d 234) (1995) (guilty plea as an admission in judicio).

       (Citation and punctuation omitted.) Moss v. State, 206 Ga. App. 310, 312 (5) (425 SE2d 386) (1992).

       (Citations and punctuation omitted.) Fults v. State, 274 Ga. 82, 87 (7) (548 SE2d 315) (2001).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).