author: Eldridge, Judge.

text:
    A99A1550, A99A1551.
    In the Interest of J. H., a child (two cases).
    (523 SE2d 374)
   Eldridge, Judge.

Appellants individually challenge the sufficiency of the evidence in the December 1997 termination of their parental rights to their son, J. H. Their motions for new trial were denied by the Cobb County Juvenile Court, and they separately appeal. Because we find that the evidence supports the termination of their parental rights, we affirm.

The standard of review of a juvenile court’s decision to terminate parental rights is as follows: “whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” (Citations and punctuation omitted.) In the Interest of E. C., 225 Ga. App. 12, 13 (482 SE2d 522) (1997). See also In the Interest of T. B. R., 224 Ga. App. 470, 472 (480 SE2d 901) (1997).

Under OCGA § 15-11-81 (a), the considerations for terminating parental rights involve a two-step process. The trial court must first determine whether there is present clear and convincing evidence of parental misconduct or inability. Such conduct or inability [shall] be proved by showing, inter alia, that (1) the child is deprived; (2) such deprivation is caused by the lack of proper parental care or control by the parent in question; (3) the deprivation is likely to continue; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.

(Citations and punctuation omitted.) In the Interest of E. C., supra at 14. See also OCGA § 15-11-81 (a), (b) (4) (A) (i)-(iv).

In determining whether there is a lack of “proper parental care [and] control,” the court may consider several factors, including the following:

(i) [a] medically verifiable deficiency of the parent’s physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child; (ii) [e]xcessive use of or history of chronic unrehabilitated abuse of intoxicating liquors or narcotic or dangerous drugs or controlled substances with the effect of rendering the parent incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the child; (iii) [c]onviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship; (iv) [e]gregious conduct or evidence of past egregious conduct of the parent toward the child ... of a physically, emotionally, or sexually cruel or abusive nature; [and] (v) [p]hysical, mental, or emotional neglect of the child or evidence of past physical, mental, or emotional neglect of the child ... by the parent.

OCGA § 15-11-81 (b) (4) (B) (i)-(v). In addition to these factors, if the child is not in the custody of the parent whose rights are being terminated, the trial court shall consider whether the parent failed to make a bona fide attempt to communicate with the child; comply with court-ordered support of the child; or comply with a court-ordered reunification plan for a period of at least one year prior to the termination proceeding. OCGA § 15-11-81 (b) (4) (C) (i)-(iii).

Once the trial court establishes a lack of parental care and control, the second part of the test for determining whether parental rights should be terminated is whether such termination “is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.” OCGA § 15-11-81 (a).

In the Interest of E. C., supra at 14.

Case No. A99A1550

The evidence in this case was generated during several hearings in the fall of 1997. The transcripts of such hearings show that both appellants and at least 20 other witnesses appeared to testify regarding the termination petitions. Viewed in favor of upholding the termination, the evidence in this case showed that J. H. was born on November 8, 1990, and is the only child of the appellants, who separated in 1992 and divorced in 1993. Following the separation, the child lived with his mother.

The evidence included numerous allegations of the mother’s unrehabilitated drug abuse prior to and after the birth-of J. H. She was convicted of possession of methamphetamine and marijuana in 1995. A semi-automatic handgun and $1,853 in cash found near the drugs were confiscated and forfeited pursuant to OCGA § 16-13-49 (o) (4).

Witnesses described the mother’s demeanor as occasionally “bizarre,” and her lifestyle was characterized as “chaotic,” “nomadic” and “transient.” She would sometimes leave J. H. with a babysitter or her father, then disappear for days or weeks without explanation.

Despite the father’s long-term physical abuse of her and the child (see infra), she consistently exposed the child to such abuse. In 1992, the mother filed a family violence petition, alleging that the father abused her “over and over for 2 years.”

In January 1996, the mother áttempted to drive around police officers who had stopped vehicles at a traffic intersection. Police officers noticed a small child sitting in her lap without any seatbelt or other restraint. As officers attempted to talk to her, she abruptly accelerated the car, forcing an officer to move out of the way to avoid being hit. J. H. recounted this incident during counseling sessions. The mother subsequently was indicted for aggravated assault.

Three months later, in April 1996, the child was taken into custody by the Cobb County Department of Family & Children Services (“DFCS”) after an employee of Sheraton Colony Square Hotel in Atlanta heard loud cries and suspicious noises coming from a hotel room. When the employee knocked on the door and received no response, he entered the room with a security pass key and discovered J. H., whose hands and feet were tied to the bed with telephone cords. The bonds were so tight that the child’s extremities were blue. The child had a large bleeding wound on his forehead and initially appeared to be dead. His eyes were swollen shut due to the mother’s placement of an unknown substance in them. The mother was hovering over the child in the hotel room and “was chanting to God and to Jesus . . . about the devil.” The child told police officers that his mother had sucked blood from his wound in order to get the devil out of him.

The mother was arrested and charged with cruelty to children in Fulton County. In December 1996, a psychiatrist determined that she was not competent at the time to stand trial on the charge.

J. H. was hospitalized after the hotel incident for treatment of his physical wounds and the traumatic stress he suffered. The child has been in foster care through DFCS since the incident. DFCS filed a petition to terminate the rights of both parents on August 13, 1996.

Since the hotel incident, various child psychologists have evaluated J. H., his parents, and his extended family. Dr. Arden Dingle, a child psychiatrist with Grady Health Systems, testified at trial that she examined J. H. during his hospitalization following the hotel incident. Dr. Dingle reported that the child had experienced severe psychological trauma and that he suffered from an acute stress disorder as a result. Dr. Dingle also opined that children who had experienced this type of trauma need “consistent, safe care-takers who [provide] adequate structure and supervision.”

The child’s primary treating psychologist, Dr. Elizabeth Moye, opined that J. H. was psychotic immediately following the hotel incident and suffered from “Post-Traumatic Stress Disorder” (“PTSD”) as a result of the incident. Dr. Moye testified that the child was very afraid of his mother and believed that she attempted to kill him. He told the psychologist that he “wantfed] [his mother] to be put in jail on the other side of the ocean so that she will never find him.” Dr. Moye noted that the child told her that he also believed his father had attempted to kill him when he was younger. Dr. Moye testified that she believed J. H. had been exposed to traumatic events prior to the hotel incident. J. H. reported to her that he had witnessed incidents involving violent acts, drugs, and guns and told her that he was afraid someone was going to hurt him. According to Dr. Moye’s report, the foster mother told her that J. H. had several cigarette bums on his back that were caused by his mother’s brother and one of her male friends. Dr. Moye noted that J. H. had exhibited numerous behavioral problems, including being “very distractable” and “sexually acting out,” and that he experienced severe nightmares and sleep disorders. Since being placed in foster care and receiving psychological therapy, J. H. has thrived and has become attached to his foster family. However, Dr. Moye opined that he was still “very fragile” and “vulnerable” and needed protection from future retraumatization. She particularly noted that she had significant concerns about taking this “scared child” to a prison so that he could visit his father, since he “worries about the world being full of dangerous criminals who might try to hurt people.”

The court-appointed psychologist, Dr. Harriet Elizabeth Kang, agreed that J. H. was “very fragile” and suffered from PTSD and extreme anxiety, as well as a “reactive attachment disorder.” She also agreed that J. H. had grown up in a “grossly disturbed environment [with] a chaotic lifestyle,” but had benefited greatly from the stability provided by the foster family. After considering the mother’s long-term history of a “severe psychological . . . emotional disturbance,” Dr. King opined that it would be “unrealistic” to expect the mother to be rehabilitated. Therefore, she recommended that the mother’s parental rights be terminated.

Dr. Martin Youngleson, the Cobb County Jail Coordinator of Mental Health, came to a different conclusion regarding the mother’s mental health. He testified that, when he first interviewed the mother in 1996, she was taking anti-psychotic medication and was depressed and “agitated.” However, when he interviewed the mother on October 27,1997, he found that she no longer exhibited symptoms of a thought disorder or psychosis and was legally competent. When asked whether the mother’s history of severe mental illness preeluded her from ever being a fit parent, Dr. Youngleson stated that, because “mental illness is separate from the parental skills [,]” if the parental skills were adequate before the onset of the mental illness, then they would be adequate after mental health treatment also. Accordingly, he recommended against termination of the mother’s parental rights.

However, the value of Dr. Youngleson’s recommendations to this proceeding was limited because they appeared to consider only the mother’s mental health status and her best interests, not the best interest of the child. It is undisputed that he did not interview J. H. in order to assess his mental and emotional condition.

Following the presentation of evidence, the child’s guardian ad litem recommended the termination of both, parents’ rights. After reviewing the totality of the evidence, the trial court agreed and ordered such termination.

On appeal, we have exhaustively reviewed the entire record and the trial court’s comprehensive, fact-intensive order. The evidence supports the trial court’s finding that the child is deprived and that such deprivation was caused, at least in part, by the mother’s lack of proper parental care or control. See OCGA § 15-11-81 (b) (4) (A) (i), (ii) ; see also OCGA §§ 15-11-2 (8); 15-11-81 (b) (4) (B). The evidence shows that the mother is unable to care for the child due to her incarceration for performing egregious, violent acts against the child, which acts caused the child extreme emotional trauma and physical pain and which clearly had a “demonstrable negative effect on the quality of the parent-child relationship.” OCGA § 15-11-81 (b) (4) (B) (iii) , (iv). Prior to the climactic hotel incident, the mother exposed the child to an abusive, nomadic, and turbulent lifestyle filled with unrehabilitated drug use and violence. OCGA § 15-11-81 (b) (4) (B) (ii); In the Interest of C. J. V., 236 Ga. App. 770, 776 (513 SE2d 513) (1999); In the Interest of E. C., supra at 15-16. Finally, the mother suffered from a long history of mental illness, including a severe psychotic condition which led her to injure J. H. OCGA § 15-11-81 (b) (4) (B) (i).

The evidence also shows that the cause of the deprivation is likely to continue and that such deprivation will cause “serious physical, mental, emotional, or moral harm to the child.” OCGA § 15-11-81 (b) (4) (A) (iii), (iv).

In addition to evidence of present parental misconduct or inability, evidence of past conduct may be considered in determining whether the deprivation would be likely to continue. Such an inference is appropriate, since the juvenile court is not required to reunite [J. H.] with [his mother] in order to obtain current evidence of deprivation or neglect.

(Citations and punctuation omitted.) In the Interest of A. C., 230 Ga. App. 395, 397 (496 SE2d 752) (1998).

In this case, the trial court found that, even if the mother’s mental illness was successfully treated, the mother would be unable to parent J. H. if he was returned to her custody. This conclusion was based on the fact that, prior to the hotel incident, the mother

routinely used drugs, even when pregnant, abandoned her child, spent time in jail on felony charges, consorted with felons and drug distributors, and lived a life that caused her child to become psychotic from the stress she caused him. There is no evidence to cause the court to believe that she will be any different when and if she is released from the custody of law enforcement or mental health officials.

Indeed, the record strongly supports a conclusion that the mother “is physically, emotionally, and financially unable to manage her own life, even without the added burden of a young, dependent child.” In the Interest of E. C., supra at 17.

As to whether the child will be harmed if the mother’s rights are not terminated and he is eventually returned to her care, the psychologists agreed that the child remains very fragile, is in need of a secure, stable environment, and still fears that his mother will harm him. However, he has thrived while in foster care, overcoming many of the symptoms of the severe emotional trauma from his first six years.

Based upon this evidence, this Court is satisfied that there is sufficient clear and convincing evidence of parental misconduct or inability, as contemplated by OCGA § 15-11-81 (a) and (b) (4) (A).

As to the second prong under OCGA § 15-11-81 (a), “[t]hose same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.” (Citations and punctuation omitted.) In the Interest of A. C., supra at 398.

In cases of this type in which the parent is unable to care for the child due to some type of mental disability, the court must make the welfare of the [child] its paramount concern. In determining the best interest of the [child], the court may consider the [child’s] need for a stable home environment and the detrimental effects of prolonged foster care.

(Citations omitted.) In the Interest of C. D. C., 230 Ga. App. 237, 238 (495 SE2d 872) (1998). The evidence presented clearly demonstrates that termination of the mother’s rights is in J. H.’s best interest. There was no error.

Case No. A99A1551

In his appeal, the father asserts that his parental rights were terminated solely because he murdered his child’s maternal grandmother in 1992. This argument is without merit.

The record shows that the father has had several previous felony and misdemeanor convictions resulting from violations of the Georgia Controlled Substances Act, as well as a conviction for possession of a firearm by a convicted felon and five convictions for driving under the influence of alcohol. Although he participated in drug treatment in 1981-1982, such treatment apparently was unsuccessful. Prior to his incarceration in 1992, see infra, he had a long history of substance abuse, including alcoholism and abuse of cocaine, heroin, and “speed.”

As noted above, substantial evidence was presented to demonstrate that the father physically abused both the mother and J. H. before and after the divorce. During the mother’s pregnancy with J. H., the father pointed a loaded gun at her abdomen. Other family members also testified that the father repeatedly threatened to shoot them — and himself — with a handgun. In addition, there was evidence that the father had had abusive physical contact with the child, such as picking the child up by his extremities and shaking him.

The father’s violent actions continued and culminated when, on December 16, 1992, he attempted to kill both the mother and two-year-old J. H. On that day, the father and mother had an argument on the telephone. The father went home and found the front door barricaded, so he went through the back door and confronted the mother, who was on the telephone. After jerking the telephone cord from the wall, the father retrieved a loaded handgun from a back room. As the mother and J. H. attempted to escape, the father repeatedly shot three television sets and a glass door. He then ran outside and shot toward the mother and J. H. as they ran into the woods. While they sought refuge in a neighbor’s house, the father confronted and murdered his mother-in-law (the child’s maternal grandmother) before shooting himself in the mouth.

The father was convicted of malice murder and felony murder in October 1994 and sentenced to life in prison. He admits that he will not be eligible for parole until 2007 at the earliest, at which time J. H. already will be 17 years old.

At the time of the murder, the father was the sole stockholder in a chain of retail stores called Starship Enterprises of Atlanta, Inc. (“Starship Enterprises”). The stores specialized in adult sexual novelties, sexually explicit “triple X” movies, and drug paraphernalia. Following the murder, the father created an irrevocable trust for the maintenance, support, and education of J. H. and transferred his stock from Starship Enterprises into the trust. The apparent intention of this transfer was to shield these assets from the mother and from potential civil lawsuits against the father resulting from his murder of J. H.’s maternal grandmother.

Since the trust was created, the value of the business has increased from $177,000 to over $2 million, with a liquidation value of $5 million. However, the actual value of the trust corpus is in dispute.

According to the trial court, the father appointed “figurehead trustees” to oversee the trust, so that he could maintain control over the trust. Until October 24, 1997, Charles Graham, former president of Starship Enterprises, acted as the trust’s trustee. At the same time, Graham held a general power of attorney over the father’s personal affairs. Prior to serving as trustee, Graham had numerous felony drug convictions and was, according to the trial court, “a notorious drug offender.” Immediately prior to the termination hearings, he pled guilty to and was incarcerated on cocaine trafficking charges.

With his friend .and associate Charles Graham as trustee, the father had extensive access to the trust corpus. Until the December 1997 termination of his parental rights, the father continued to draw a “consulting fee” of between $45,000 and $50,000 a year from the business and accumulated additional assets with a value exceeding $140,000. However, he failed to pay any child support during 1996 or 1997. Although the father insists on appeal that he has given the child many “gifts” since being incarcerated, the evidence demonstrates that such gifts actually were paid for with funds from the child’s own trust. The evidence also indicated that trust assets may have been used to purchase cars, homes, clothing, furniture, and other gifts for a number of people, including the father’s children from a previous marriage. Further, a Destín, Florida condominium was purchased as an “investment” by the trust, although it apparently was used primarily by Graham.

The father also used trust funds to pay approximately $120,000 in his own legal expenses related to the termination case. In addition, he authorized the trustee to spend several thousand dollars in attorney fees on behalf of family members and friends who sought to intervene in this action so that they could obtain custody of J. H. if the parents’ rights were terminated. It is undisputed that none of the attorney fees for either J. H. or his mother were paid from the trust fund.

However, Graham and the father attempted to justify these expenditures by asserting that termination of the father’s rights was not in J. H.’s best interest, so that the use of trust funds to challenge the termination fell within the purpose of the trust. In support of this position, the father relied in part on the opinion of Dr. King, the court-appointed psychologist. Dr. King initially recommended against termination of the father’s rights. However, Dr. King’s testimony and recommendations were based upon her determination that various negative allegations against the father were “unsubstantiated.” On cross-examination, Dr. King ádmitted that, at the time she wrote her report to the trial court, she either was not aware or had not investigated allegations of the father’s history of alcohol or drug abuse, his threatening acts toward J. H. or the mother, or his numerous criminal drug and DUI convictions. She testified that she received much of her information about the father from files and depositions supplied by his attorney. Dr. King testified that, if the allegations had been substantiated, she would have been more concerned about the father’s “inability not to harm his child.” Notably, once the trial court terminated the parents’ rights, Dr. King modified her recommendation by suggesting that the trial court should prohibit any further contact with the child by either parent. Accordingly, the father’s reliance upon Dr. King’s initial recommendation is misplaced.

After reviewing the entire record and hearing transcripts as to the father’s case, this Court finds that there is sufficient evidence to support each of the statutory requirements for terminating his parental rights under OCGA § 15-11-81.

As noted above, the child is presently deprived. OCGA §§ 15-11-2 (8); 15-11-81 (b) (4) (A) (i). This deprivation is caused in part by the father’s lack of proper care and control, which is most clearly demonstrated by his incarceration for the felony murder of J. H.’s grandmother. OCGA § 15-11-81 (b) (4) (B) (iii). Such murder deprived J. H. of the companionship of both the grandmother and the father, thereby causing the child extreme emotional trauma and creating a “demonstrable negative effect on the quality of the parent-child relationship.” Id. While the father is correct in asserting that imprisonment alone does not compel a termination of parental rights, such imprisonment

will support such a ruling when adequate aggravating circumstances are shown to exist. These aggravating circumstances may include a criminal history of repetitive incarcerations for the commission of criminal offenses or parole violations, which constitutes an additional factor which may be considered in determining whether the child presently is without the proper parental care and control of the offending parent, and that such is likely to continue.

(Citations and punctuation omitted; emphasis in original.) In the Interest of T. B. R., supra at 473. See also In the Interest of C. J. V., supra at 775. In this case, the father had numerous convictions for drug-related offenses, DUI, and weapons charges. Further, there was substantial evidence of long-term physical abuse of the child’s mother and violent threats toward J. H. and other family members.

In addition, although the father claims that he has not abused drugs and has become “rehabilitated” since his imprisonment, such assertion carries little probative value and was rejected by the trial court. In its final order, the trial court found that, although the father had participated in various treatment and educational programs during his imprisonment,

[h]is previous efforts at drug rehabilitation have failed, . . . and he has had no access to drugs in prison. His rehabilitation is unproved. . . . [T]he Court finds he has demonstrated a history of chronic unrehabilitated abuse of narcotic drugs or controlled substances with the effect of rendering the parent incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of his child. See OCGA § 15-11-81 (b) (4) (B) (ii).

While the father’s efforts to improve himself during his imprisonment are commendable, “the trial court must determine whether a parent’s conduct warrants hope of rehabilitation, not an appellate court.” (Citations and punctuation omitted.) In the Interest of T. B. R., supra at 475. “The decision as to the [child’s] future must rest on more than positive promises which are contrary to negative past fact.” (Citations and punctuation omitted.) In the Interest of A. H., 226 Ga. App. 279, 284 (486 SE2d 412) (1997).

Further, although the father asserts that he has sent the child numerous cards and gifts since his incarceration, such recent efforts to nurture this child, like the father’s efforts at self-improvement, fall short of negating years of exposing the child to drug abuse, drug trafficking, alcoholism, violence, and suicide attempts, as well as the instability resulting from his mother’s mental illness. In the Interest of T. B. R., supra. All of these problems are directly attributable to the father’s pre-confinement lifestyle and to the fact that the father has been unavailable to care for the child due to his current incarceration.

In addition, such efforts do not alter the fact that the father is presently depriving his child of the full benefit of his irrevocable trust. As to the father’s claim on appeal that he has provided financially for the child by creating the trust, the trial court found that,

[w]hile the creation of the trust may be seen as an act of generosity by the donor [father], it may also be seen as sinister manipulation of resources, protecting them from victims who may have a compelling claim on them, while still allowing the donor to retain complete control of, and benefit from, them.

After hearing the evidence at trial, the trial court found the latter to be true. The trial court also found that the fact “that more than a hundred thousand dollars of the child’s estate may have been wasted could be considered as evidence of current child deprivation” by the father. (Emphasis supplied.) This is in addition to the fact that the father has failed to pay any child support since 1996, even though he earned approximately $50,000 annually while imprisoned. See OCGA § 15-11-81 (b) (4) (C) (ii).

It also would be reasonable to infer from this evidence that, if the father’s rights are not terminated, he will continue to draw from the child’s trust as long as possible, perhaps until it is depleted. This indicates that such deprivation is likely to continue in the future. OCGA § 15-11-81 (b) (4) (A) (iii).

There is little doubt that such continued deprivation will cause J. H. serious harm. The father is serving a life sentence and has admitted that he will not be eligible for parole until 2007 at the earliest. If the father’s rights are not terminated, J. H. will be committed to spending his entire childhood in temporary care, in the hope that his father will be released from prison and will be able and willing to care for him. In the Interest of T. B. R., supra at 477. For a vulnerable child who desperately needs and desires stability, such arrangement is unacceptable. See In the Interest of R. N., 224 Ga. App. 202, 205 (480 SE2d 243) (1997).

Accordingly, we find that the trial court’s finding of parental misconduct or inability on the part of the father was supported by clear and convincing evidence. This same evidence also supports the trial court’s finding that termination of the father’s parental rights was in the child’s best interest. In the Interest of C.J.V., supra at 778; In the Interest of A. C., supra at 398. There was no error.

Decided October 7, 1999.

James K. Knight, Jr., for appellant (case no. A99A1550).

J. Stephen Clifford, for appellant (case no. A99A1551).

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Sanders B. Deen, for appellee.

Judgments affirmed.

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

       The Department of Family & Children Services (“DFCS”) called the mother to the stand for the purpose of cross-examination. However, the mother refused to testify at trial and, instead, repeatedly invoked her Fifth Amendment right against self-incrimination. The trial court explained that her testimony was not admissible against her in any other criminal proceeding and that her refusal to answer the questions could be construed against her. See OCGA § 15-11-88. However, she consistently refused to answer questions regarding the State’s allegations of her misconduct or inability as presented below.

       The record shows that, in November 1996, the trial court was informed that “the mother’s mental condition has recently deteriorated”; she refused to speak, take medicine, or eat; and she had to receive emergency treatment after swallowing a spoon.

       DFCS previously had filed a deprivation action regarding this child. All parties agreed to consolidate the deprivation action with the termination petitions. In addition to DFCS’ petition, the child’s paternal grandfather also filed a termination petition, which was combined with this action.

       After he was incarcerated, Charles Graham named Tom Mullins as the successor trustee to oversee the trust with the father’s approval. Tom Mullins is on the Board of Directors of Starship Enterprises.

       See OCGA § 15-11-81 (b) (4) (C) (i).

       Following the termination of the father’s parental rights, the trial court named the child’s guardian ad litem as guardian over the child’s property, including the trust, and ordered an accounting of the trust’s assets.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A99A0894.
    BROWN v. THE STATE.
    (523 SE2d 333)
   Pope, Presiding Judge.

Terrell Brown was tried and convicted of two counts of felony obstruction of an officer and sentenced to consecutive five-year terms. On appeal he enumerates four errors.

Construed in favor of the verdict, the evidence shows that on February 3, 1997, Deputies Acker and Jones of the warrant division of the Floyd County Sheriff’s Department were attempting to arrest Brown pursuant to a warrant for violating his probation by failing to report and absconding supervision. They had previously been unsuccessful finding Brown at the address shown on the warrant, and they had a tip that Brown would be going to 205 Cherry Street in a red Honda and that he was possibly armed. Upon arrival, Jones saw a red Honda in the driveway and a man in the window who he believed fit Brown’s description. Theron Plummer, who did not own or live at the property, opened the door and assented to Jones’s request to come into the house, but Jones never attempted to determine whether Plummer had authority to consent. Jones then asked Plummer and a woman who had appeared if they would let Officer Acker in the back door, which they proceeded to do.

Jones then walked into a bedroom with his gun in hand at his side and found the homeowner, Nathan Ware, and a child. Jones twice asked Ware if Brown was there and Ware did not respond but looked behind the open door. Jones pulled the door back, and Brown, who was standing there, said “Okay man, you got me.” As Jones attempted to handcuff him, Brown suddenly ran past Jones and out of the house. In so doing, he pushed Jones’s gun hand aside causing the gun to strike Jones in the head. Both Jones and Acker pursued Brown into a wooded area. Eventually Acker caught Brown by the foot, and Brown began to beat Acker and reach for Acker’s gun arm. Fearing he was about to be overcome and lose his gun to Brown, Acker shot Brown in the thigh. Brown was then arrested.

1. Brown contends the court should have granted his motion to dismiss the indictment because he could not be convicted as a matter of law. He asserts the officers in question were not acting “in the lawful discharge of [their] official duties” as provided by OCGA § 16-10-24 because they were not legally in the house, and that therefore he cannot be guilty of obstructing or hindering an officer. He does not challenge the warrant for his own arrest.

“An essential element of the offense of obstruction of an officer is that the State prove beyond a reasonable doubt that the obstruction occurred while the officer was in ‘the lawful discharge of his official duties.’ OCGA § 16-10-24 (b). [Cit.]” Woodward v. State, 219 Ga. App. 329, 330 (1) (465 SE2d 511) (1995). It is now well established that even when armed with an arrest warrant, police must have either a search warrant, exigent circumstances or consent to lawfully enter a third person’s home to arrest someone who does not reside there. Steagald v. United States, 451 U. S. 204, 212-215 (101 SC 1642, 68 LE2d 38) (1981); King v. State, 217 Ga. App. 889, 891 (459 SE2d 605) (1995). Here, the officers did not have a search warrant, they admit there were no exigent circumstances, and they failed to make any showing of proper consent allowing them to enter 205 Cherry Street.

As pointed out in Steagald, two distinct Fourth Amendment interests are at stake where officers enter a third person’s home to execute an arrest warrant, the arrestee’s interest in being free from an unreasonable seizure and the homeowner’s interest in being free from an unreasonable search of his home. Steagald, 451 U. S. at 216. Thus, the issue is whether officers are considered to be lawfully discharging their official duties where the officers’ presence in the home was unlawful with respect to the homeowner, but where the officers had probable cause and a warrant to arrest Brown in a situation where Brown has no standing to object to the search of the house.

While not sanctioning the failure of the officers to get a search warrant, we conclude the officers were engaged in the lawful discharge of their duties with regard to Brown. An arrest with reasonable or probable cause is within the lawful discharge of official duties. See Woodward, 219 Ga. App. at 330 (1). The officers in this case had probable cause and an arrest warrant. “In order to arrest under a warrant charging a crime, the officer may break open the door of any house where the offender is concealed.” OCGA § 17-4-3. Even if this statute has been limited by Steagald, the arrest warrant gave the officers authority to enter Brown’s own premises to arrest him. Steagald, 451 U. S. at 221. It would be anomalous to interpret Steagald to afford Brown more rights in Ware’s home than he would have in his own. As stated therein, “rights such as those conferred by the Fourth Amendment are personal in nature, and cannot bestow vicarious protection on those who do not have a reasonable expectation of privacy in the place to be searched.” Id. at 219. The trial court did not err in denying the motion to dismiss. Compare Singleton v. State, 194 Ga. App. 423 (1) (390 SE2d 648) (1990) (officers with probable cause to arrest and knowledge of arrest warrant were acting in lawful discharge of their duty when they arrested defendant) with Brooks v. State, 206 Ga. App. 485, 488 (2) (425 SE2d 911) (1992) (attempted arrest unauthorized because facts and circumstances within knowledge of officers not sufficient to warrant prudent man to believe defendant had committed offense).

2. Brown complains that the court erred in denying his request that uniformed officers not sit directly behind him at trial. It is preferred

that the accused, while in the presence of the jury, should be free of indicia of guilt such as wearing shackles or prison garb, or being surrounded by uniformed security personnel, or anything else that might infringe upon the presumption that he is innocent.

Collins v. State, 164 Ga. App. 482, 484 (4) (297 SE2d 503) (1982). It is in the court’s discretion whether to allow restraints on the defendant or the presence of officers in order to protect the safety of those in the courtroom or the public. Id. The appellant has the burden of showing the safety and security measures caused a violation of his constitutional rights. Id.

Here Brown’s attorney acknowledged the sheriff’s office had concerns about courtroom security but asked that the officers be positioned away from his client to avoid the suggestion of the need for the officers. However, he did not make a showing of how many officers there were or what the sheriff’s security concerns were. The court indicated it had received reports from the sheriffs department about Brown, and that it was not going to interfere with the sheriffs security measures. Without more we cannot say the court abused its discretion. See Thrasher v. State, 204 Ga. App. 413, 414 (3) (419 SE2d 516) (1992); see also Massey v. State, 220 Ga. 883, 895 (6) (142 SE2d 832) (1965) (officers allowed to remain in courtroom for reasons of security).

Decided September 16, 1999

Reconsideration denied October 8, 1999.

McCrory & Baldwin, Aldous D. McCrory, for appellant.

Tambra P. Colston, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.

3. Brown asserts the court improperly commented on the evidence by charging the jury “that injury to the officer is not a required element to the felony obstruction of an officer.” This charge was a correct statement of law and we find no error. See Fricks v. State, 210 Ga. App. 562, 563 (436 SE2d 752) (1993).

4. The court did not err in refusing Brown’s requested charge on a lesser included offense. First, the written request was not adequately adjusted or tailored to the facts of the specific case or to the law of misdemeanor obstruction of an officer, and therefore denial of the charge was proper. James v. State, 210 Ga. App. 454 (2) (a) (436 SE2d 565) (1993). Second, Brown failed to object at the charge conference and failed to object to the charge as given or to reserve his right to object. Brown, therefore, has waived his right to object on appeal. Woods v. State, 263 Ga. 804 (2) (440 SE2d 1) (1994); Bradford v. State, 221 Ga. App. 232, 237 (5) (471 SE2d 248) (1996).

Judgment affirmed.

Smith and Eldridge, JJ, concur.

       The record reveals not one piece of evidence that Plummer had authority to consent to entry. The mere presence of a third party who gives purported consent to enter is insufficient. State v. Floyd, 161 Ga. App. 49, 50 (289 SE2d 8) (1982).

       It is undisputed that Brown had no ownership or possessory interest in that premises. As such, he had no expectation of privacy, and he lacks standing to challenge the validity of the search. Moody v. State, 232 Ga. App. 499, 504 (4) (a) (502 SE2d 323) (1998).


author: Miller, Judge.

text:
    A99A1371.
    McNAIR v. THE STATE.
    (523 SE2d 392)
   Miller, Judge.

A jury found Ollie McNair guilty of possession of cocaine with intent to distribute, tampering with evidence, and obstruction of an officer. McNair appeals, raising four enumerations of error. We affirm.

1. Pursuant to OCGA § 17-7-70.1, the Dougherty County district attorney prosecuted McNair by felony accusation rather than by indictment. Citing OCGA § 17-7-70, McNair claims error in that he did not waive or consent to allow his case to be tried by accusation.

McNair relies upon the wrong Code section. OCGA § 17-7-70.1 authorizes a district attorney to try a case upon accusation for certain enumerated felonies without a waiver of indictment. Lamberson v. State, 265 Ga. 764 (1) (462 SE2d 706) (1995). OCGA § 17-7-70.1 (a.l) specifically states that violations of OCGA § 16-13-30 may be tried by accusation instead of grand jury indictment whenever the accused has waived the right to a commitment hearing. McNair waived this right when he posted bond following his arrest for these charges. See State v. Gilstrap, 230 Ga. App. 281, 282 (495 SE2d 885) (1998). Accordingly, the State was authorized to try McNair by accusation.

2. McNair also contends the trial court erred in admitting evidence of a prior similar transaction. But McNair failed to object to the introduction of the similar transaction evidence at trial, which waived the issue on appeal. Young v. State, 269 Ga. 478, 479 (3) (499 SE2d 60) (1998); Stewart v. State, 239 Ga. App. 543 (1) (521 SE2d 468) (1999). “[T]he rule requiring a trial objection on similar transaction evidence is firm in Georgia jurisprudence, and we are bound to follow it.” (Footnote omitted.) McClarity v. State, 234 Ga. App. 348, 350 (2) (506 SE2d 392) (1998).

Even if McNair had raised an objection, similar transaction evidence is permissible to show motive, intent, and knowledge. Tate v. State, 230 Ga. App. 186, 188 (2) (495 SE2d 658) (1998).

If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.

State v. Johnson, 246 Ga. 654, 655 (1) (272 SE2d 321) (1980).

The prior transaction was a 1994 conviction for possession of cocaine with intent to distribute arising from the following facts. Detective Williams testified that on March 1, 1994, he observed McNair on the corner of Roosevelt and Carroll. As he approached, he observed McNair throw something to the ground. Detective Williams searched the ground, but McNair was standing on the item. After McNair stepped back, Williams found a plastic bag containing cocaine.

The crime charged here was committed on the exact same street corner, involving multiple pieces of cocaine, in a plastic bag or wrap, where McNair attempted to conceal or destroy the evidence. The evidence supported the trial court’s finding that the prior act was sufficiently similar.

3. McNair contends that the court erred by finding that the evidence was sufficient to support a verdict of possessing cocaine with intent to distribute. McNair argues that the State failed to prove that he possessed the contraband for the purpose of sale.

As proof of intent to distribute, the State may introduce “a prior possession with intent to distribute conviction, and expert testimony that the amount of contraband possessed was consistent with larger amounts usually held for sale rather than for personal use.” (Citations and punctuation omitted.) McNair v. State, 226 Ga. App. 516, 517 (1) (487 SE2d 100) (1997). Here the State introduced a certified copy of McNair’s 1994 conviction of possession with intent to distribute and expert testimony that the more than fifty pieces of cocaine collected from McNair far exceeded the one or two pieces a personal user generally possessed. This evidence sufficed to sustain the conviction. Burse v. State, 232 Ga. App. 729, 730 (1) (503 SE2d 638) (1998); Lindley v. State, 225 Ga. App. 338, 341 (1) (484 SE2d 33) (1997).

4. McNair’s final argument is that the court erred by admitting the contraband into evidence after the State failed to establish a sufficient chain of custody.

The burden on the State was to show, with reasonable certainty, that the evidence examined was the same as that seized, and that the evidence was not tampered with or substituted. Marshall v. State, 213 Ga. App. 186, 187 (2) (444 SE2d 130) (1994). At trial, Investigator Johnson testified that he weighed and packaged the cocaine retrieved from McNair and placed it in the evidence locker. The package weighed 22.7 grams. Officer Nelson testified that she removed the cocaine from the evidence locker, catalogued it, and returned the package to the evidence room until she transported it to the state crime lab. Susan Strickland testified that she received the package of cocaine from Officer Nelson. Strickland testified that she removed the cocaine and dirt mixture from the plastic bag and that it weighed 15.3 grams.

A discrepancy between the arresting officer and the crime lab chemist regarding the amount of cocaine in an exhibit does not go to the admissibility but the weight of the evidence, which is a matter for the jury to decide. Allison v. State, 217 Ga. App. 580, 582 (3) (459 SE2d 557) (1995); see Dean v. State, 211 Ga. App. 28, 31 (3) (438 SE2d 380) (1993) and cits. therein.

Moreover, in reviewing the trial court’s findings on the chain of custody, courts have applied a “clearly erroneous” or “abuse of discretion” standard. McAllister v. State, 258 Ga. 795, 796 (1) (375 SE2d 36) (1989) (abuse of discretion); Jordan v. State, 223 Ga. App. 176, 183 (3) (477 SE2d 583) (1996) (clearly erroneous). Because each witness identified the evidence and testified as to how they received, returned, or delivered it, the evidence supported the trial court’s finding that the chain of custody was properly established. The finding was neither an abuse of discretion nor clearly erroneous.

Judgment affirmed.

Blackburn, P. J, and Barnes, J., concur.

Decided October 8, 1999.

June S. Gamble, for appellant.

Kenneth B. Hodges III, District Attorney, Sadhana Pandey, Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A99A1987.
    BEATTIE v. THE STATE.
    (523 SE2d 389)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of aggravated assault and two counts of simple battery. These convictions are based on proof that defendant, on three occasions, physically assaulted the victim — his former female friend. After the admission of evidence at trial that at least one of these assaults was committed while defendant was in possession of a handgun, the trial court accepted defendant’s guilty plea for possession of a firearm by a convicted felon. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court abused its discretion in denying his motion for continuance.

Although defendant was represented by a court-appointed attorney, defendant was permitted to address the trial court, pro se, just before trial and move for a continuance based on his alleged need to subpoena witnesses. The trial court denied this motion, but offered defendant a break so that he could contact any witness he preferred to call.

The trial court did not err in denying defendant’s motion for continuance because defendant did not have the right to assert this motion on his own, without the consent of his attorney. A criminal defendant does not have the right to represent himself and also be represented by an attorney. Maddox v. State, 218 Ga. App. 320 (1), 321 (461 SE2d 286). Moreover, since defendant had been represented by an attorney for more than five months before trial, we find no error because, where witnesses have not been subpoenaed and other statutory requirements have not been met, it is not an abuse of discretion to refuse a postponement of trial to subpoena witnesses. Halthon-Howard v. State, 234 Ga. App. 229 (1), 230 (506 SE2d 415).

2. Defendant contends the trial court erred in denying his motion for new trial, arguing that his trial attorney provided him with ineffective assistance.

“ ‘The bench mark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The complaining defendant must make both showings.’ (Citations and punctuation omitted.) Richardson v. State, 194 Ga. App. 358, 358-359 (390 SE2d 442) (1990).” Jacobson v. State, 201 Ga. App. 749, 752 (5) (412 SE2d 859) (1991); Spivey v. State, 193 Ga. App. 127, 130 (3) (386 SE2d 868) (1989).

Moody v. State, 206 Ga. App. 387, 388 (1) (425 SE2d 397).

(a) Defendant claims in the case sub judice that his trial attorney was ineffective because he did not subpoena a law enforcement officer to testify on his behalf at trial, because he did not file pre-trial discovery motions, and because he did not request any jury instructions. These assertions provide no basis for review because defendant has failed to argue on appeal or demonstrate by the record that any of the above omissions diminished his cause or changed the outcome of his trial. An ineffective assistance of counsel claim must not only be supported by a showing that trial counsel’s performance was deficient, but must also be accompanied by a showing that the result of the trial would have been different but for the alleged deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674); see Fargason v. State, 266 Ga. 463, 465 (4) (467 SE2d 551); Brown v. State, 257 Ga. 277, 279 (2) (d) (357 SE2d 590).

(b) Defendant claims that his trial attorney ineffectively failed to call Cindy Long to refute the victim’s testimony that he assaulted her with a handgun. Long was residing in the same house with the victim and defendant when defendant allegedly committed the assaults at issue in the case sub judice.

The decision as to which defense witnesses will be called is a matter of trial strategy and tactics and does not usually constitute ineffective assistance of counsel. See Keanum v. State, 212 Ga. App. 662, 664 (3) (442 SE2d 790). Although Long testified in the case sub judice that she never saw defendant assault the victim, defendant’s trial attorney testified that but for defendant’s last minute request (during trial) for him to call Long he would not have made an unsuccessful attempt during a break at trial to summon Long to testify at trial because, in his view, Long would not have been a credible witness. Defendant’s trial attorney explained that he based this opinion on the fact that Long had been convicted of simple battery for assaulting the victim; that this conviction was based on an incident which occurred while the victim and defendant were residing in Long’s home, and that Long had provided an inconsistent statement (apparently to police authorities) regarding her involvement with the victim. This testimony authorizes the trial court’s finding that defendant’s trial attorney did not provide defendant with ineffective assistance because of his decision not to subpoena Long as a defense witness. A trial court’s findings on the effectiveness of counsel must be upheld unless it is shown that those findings are clearly erroneous. Smith v. State, 234 Ga. App. 586, 588 (1) (506 SE2d 406).

Decided October 8, 1999.

Turner & Willis, Christopher W. Willis, for appellant.

Lydia J. Sartain, District Attorney, Arturo Corso, Assistant District Attorney, for appellee.

(c) Defendant finally argues that his trial attorney ineffectively failed to object when the victim placed his character in issue by describing defendant’s other acts of domestic violence against her — acts which were unrelated (in time) to the acts which constitute the crimes charged. Defendant also argues that his trial attorney should have objected to certain hearsay testimony which placed his character in issue. We do not agree. A decision on whether to object when a defendant’s character is placed in issue is a matter of trial tactics and does not equate with ineffective assistance of counsel. Lowery v. State, 212 Ga. App. 870, 872 (443 SE2d 304).

The trial court did not err in denying defendant’s motion for new trial.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.


text:
    A99A2092.
    CASEY v. THE STATE.
    (523 SE2d 395)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of driving under the influence of alcohol.

Officer Christopher McGrath of the Gwinnett County Police Department testified that, after stopping defendant for speeding at about 10:00 in the evening on August 15, 1997, he smelled alcohol on defendant’s breath and noticed that defendant’s speech was slurred, that defendant’s eyes were red and glassy, and that defendant’s face was flushed. Officer McGrath testified that defendant was unsteady on his feet; that defendant failed several field sobriety tests, and that defendant admitted that he had consumed a couple of alcoholic beverages before driving. Officer McGrath opined that, based on his on-the-scene observations and his experience, defendant was under the influence of alcohol to an extent that it was less safe for him to drive.

Defendant testified on his own behalf at trial and admitted that he had consumed two glassfuls of straight liquor and a “couple of sips” of another alcoholic beverage less than three hours before driving. Defendant also admitted that these drinks caused him to feel relaxed, but he opined that the drinks did not cause him to be a less safe driver.

This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in denying his motion for directed verdict, arguing that there is insufficient evidence to support his conviction. We do not agree. Defendant’s admissions that he had consumed straight liquor within three hours before driving and that this alcohol caused him to feel somewhat relaxed, along with Officer McGrath’s testimony concerning defendant’s intoxicated appearance and traffic violation (exceeding the posted speed limit by twenty mph), overwhelmingly support the jury’s finding that defendant is guilty, beyond a reasonable doubt, of driving under the influence of alcohol. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Defendant contends in his first enumeration of error that the trial court should have granted his motion for new trial because the trial court’s clerk did not file an accusation against him for the charged offense until four days after he was sentenced. Defendant reasons that this purported deficiency means that the trial of the case against him was a nullity because the “issue [was] never properly joined” under OCGA § 17-7-94.

Although this enumeration of error does not appear to be supported by symmetrical logic or controlling authority, we need not address the substance of defendant’s claim because the record does not support his assertions. The record citations which defendant’s appellate counsel provides in support of this enumeration of error are counsel’s own application for leave of absence in the trial court and a trial transcript excerpt where the trial court excuses the jury for a lunch break and admonishes them not to discuss the case. The relevant portions of the record show that the accusation against defendant was filed in the trial court on December 4, 1997; that a form reflecting defendant’s waiver of arraignment and not guilty plea was filed on January 6, 1998; that a trial transcript was filed showing that defendant was tried before a jury on November 18 and 19, 1998, and that defendant’s judgment of conviction and sentence were filed on November 20, 1998.

Decided October 8, 1999.

Clark & Towne, David E. Clark, for appellant.

3. Defendant contends the trial court erred in admitting evidence of the results of his breath test (.97 grams) because the law enforcement officer who administered the test admitted that he did not operate the breath-testing machine (“Intoxilyzer 5000”) according to the manufacturer’s operating directions. While we agree that this officer’s admission compromised the very foundation for admission of defendant’s breath test under OCGA § 40-6-392 (a) (1) (A), we find it highly probable that any error in the admission of the results of defendant’s breath test did not contribute to the judgment in this case because the evidence of defendant’s guilt was overwhelming. Hamilton v. State, 228 Ga. App. 285, 287 (4) (491 SE2d 485).

4. Defendant contends the trial court erred in giving the pattern jury instruction as to the use of expert testimony. We do not agree. Officer McGrath’s expert opinion as to defendant’s driving abilities authorized the trial court’s instruction on expert testimony. Contrary to defendant’s assertion, Officer McGrath’s training and experience qualified him as an expert in this area. See Tanner v. State, 225 Ga. App. 702 (484 SE2d 766).

5. Defendant contends the trial court erred in excluding evidence of a document which purports to be an employee performance appraisal which does not reflect favorably toward Officer McGrath. Defendant argues that this document was admissible as a business record. We do not agree. Because the alleged employee performance appraisal mostly reflects the opinion of an out-of-court declarant who was not subject to or available for cross-examination, the document was not shown to be admissible into evidence as a business record. Business records are admissible if the record reflects an act, occurrence or event — not an opinion. Johnson v. State, 168 Ga. App. 271, 272 (1) (308 SE2d 681). But even assuming the contrary, after a review of the record, we find any error in refusing to admit Officer McGrath’s employee performance appraisal to be harmless because Officer McGrath was cross-examined extensively about this document and he admitted most of the negative substance described therein. See Ansley v. State, 198 Ga. App. 452, 453 (402 SE2d 73).

Judgment affirmed.

Johnson, C. J, and Phipps, J, concur.

Gerald N. Blaney, Jr, Solicitor, Jeffrey P. Kwiatkowski, Gary S. Vey, Assistant Solicitors, for appellee.

       Specifically, the officer did not wait 20 minutes after this machine indicated that residual mouth alcohol was detected in the first sample of defendant’s breath.


author: Phipps, Judge.

text:
    A99A1116.
    THE STATE v. HOLMES.
    (525 SE2d 698)
   Phipps, Judge.

The State appeals the trial court’s order granting Willie Holmes’s motion to suppress crack cocaine found in his possession during a warranted search of premises he was visiting. On appeal of an order concerning a motion to suppress, we must construe the evidence most favorably to upholding the trial court’s order. We affirm the trial court’s order because the search of Holmes was not justified to protect an officer or to prevent the disposal or concealment of drugs sought in the warrant.

The following evidence was presented at the motion to suppress hearing. On July 1,1998, several officers of the Metro Narcotics Task Force executed a search warrant on premises occupied by Sharon and Major McClendon. Based on an informant’s tip, the task force had reason to believe that Sharon McClendon was in possession of cocaine. The informant did not mention Holmes, nor were the officers familiar with Holmes prior to the search. The warrant, however, authorized the officers to search the “entire premises and any persons found therein or thereupon.”

When the officers drove up to the house, they saw Major McClendon and Holmes standing in the yard talking. McClendon and Holmes were approximately three feet from the side of the house closest to the road. As the officers ran toward the house, Holmes began walking away from the house. Officer Price, who was not wearing anything to indicate he was a police officer, approached Holmes and announced “police, search warrant.” As Officer Price reached out to grab him, Holmes began to run away. Officer Price grabbed Holmes by his shorts and turned him around. Holmes’s hands remained in his pockets the entire time.

Officer Grant told Holmes to remove his hands from his pockets. When Holmes did not respond quickly, Officer Grant removed Holmes’s hands from his pockets, put him against the wall, and conducted a weapons pat-down search. During the search, Officer Grant noticed a hard round object shaped like a cookie in Holmes’s pocket. Officer Grant removed the object, which turned out to be crack cocaine.

When asked why Holmes was detained and searched, the officers testified that he was detained because he was on premises subject to a search warrant and was searched because of their general policy to conduct a weapons pat-down search when a warrant is executed. Holmes was not detained or searched because he looked like he had a weapon, and the officers knew nothing about him before the search.

When executing a search warrant, it is illegal to search a person not named in the warrant but found on the premises to be searched, without independent justification for a personal search. The only justifications for such a search include: (1) protecting the executing officer from attack; or (2) preventing the disposal or concealment of items described in the search warrant. The inclusion of language in the warrant authorizing the search of “any persons present” on the premises does not broaden the powers of the searching authorities beyond the limited terms of OCGA § 17-5-28.

'To support a search under OCGA § 17-5-28 (1), the officer must be able to articulate specific facts that would support a reasonable belief or suspicion that the person to be searched was armed and dangerous. The officers testified that Holmes was walking away from them and the house as they approached to execute the search warrant, had his hands in his pockets, and did not appear to be armed. Because nothing about Holmes’s demeanor would support a reasonable belief or suspicion that he was armed and dangerous, the State cannot justify the search under OCGA § 17-5-28 (1).

The officers’ search may be justified under OCGA § 17-5-28 (2) if Holmes had been in a position to assist in the disposal or concealment of the drugs sought by the warrant, or if he had attempted flight from inside the house subject to the warrant. In Jenkins, the defendant was standing with the two persons named in the warrant and was in a position to pass drugs from person to person. Holmes, however, was not anywhere near Sharon McClendon, the only person named in the warrant. In addition, Officer Price testified that he did not know Holmes or Major McClendon. It therefore seems unlikely that Holmes was detained and searched because of his proximity to someone the officers knew might attempt to pass him drugs.

Furthermore, Holmes was under constant surveillance from the moment the officers arrived at the premises. He thus could not have concealed or disposed of any drugs from the premises without their knowledge. With the exception of the State’s claim that Holmes was attempting flight from the premises (discussed below), the officers do not claim that Holmes did anything that led them to believe he was trying to conceal or dispose of drugs.

Decided October 12, 1999.

“A search warrant to search designated premises will not authorize the search of every individual who happens to be on the premises.” In Willis, the court upheld a search under a similar warrant where the defendant was found in the same room with the persons named in the warrant in a position where drugs could have been passed easily from person to person. The Willis court recognized, however, that the search would not have been justified if the defendant had been in another part of the house. Applying Willis, the search of Holmes was not justified because he was outside the house to be searched and was not close to the person named in the warrant.

The State relies upon Ledford and Travis where the searches were justified because the defendant was inside the house to be searched and attempted to escape when the officers began executing the warrant. But Holmes was never seen inside the house to be searched and merely tried to walk away when the officers ran toward the house. The only evidence of attempted flight is Officer Price’s testimony that Holmes began to run as Officer Price shouted at him and reached out to grab him. This evidence conflicts with the other officers’ testimony that Holmes tried to walk, not run, from the house as the officers approached. Construing the evidence in favor of the trial court’s order, we find that Holmes’s behavior did not justify a search under OCGA § 17-5-28 (2).

Because the officers lacked independent justification to search Holmes, we hold the State’s search was illegal. We therefore affirm the trial court’s order granting the motion to suppress.

Judgment affirmed.

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

J. Gray Conger, District Attorney, Patrick B. Moore, Assistant District Attorney, for appellant.

Michael E. Garner, for appellee.

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

        Bundy v. State, 168 Ga. App. 90 (308 SE2d 213) (1983).

       OCGA § 17-5-28; Wyatt v. State, 151 Ga. App. 207, 209 (1) (259 SE2d 199) (1979).

        Wallace v. State, 131 Ga. App. 204, 205 (1) (205 SE2d 523) (1974).

        Bundy, supra at 91.

        Jenkins v. State, 184 Ga. App. 844, 846 (363 SE2d 35) (1987).

        Ledford v. State, 233 Ga. App. 445, 446-447 (1) (504 SE2d 512) (1998); Travis v. State, 192 Ga. App. 695, 696 (385 SE2d 779) (1989).

        Jenkins, supra.

       See Wallace, supra (OCGA § 17-5-28 (2) was factually inapplicable where defendant arrived at scene during search and was under constant surveillance from time he entered apartment).

        Willis v. State, 122 Ga. App. 455, 459 (177 SE2d 487) (1970).

       Id.

       Supra.

       Supra.


author: McMURRAY, Presiding Judge.

text:
    A99A2047.
    McCLOUD v. THE STATE.
    (525 SE2d 701)
   McMURRAY, Presiding Judge.

Defendant now appeals the denial of his motion to withdraw his guilty pleas to two counts of child molestation, which are based on a showing that defendant sexually molested his young stepchild. These pleas were entered after the trial court rejected defendant’s request to plead guilty, without having to admit any wrongdoing, under the procedure set forth in North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162). Held:

1. Defendant contends that his court-appointed attorney ineffectively failed to investigate his case, prepare for trial, or provide defendant with sufficient opportunity to review certain evidence. Defendant claims that these deficiencies prevented him from freely and voluntarily entering his guilty pleas.

To prevail on his ineffective assistance of counsel claim, defendant had to convince the trial court to disregard the strong presumption that his trial attorney provided him with effective assistance. Defendant also had to prove to the trial court that his attorney’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for defense counsel’s errors, defendant would not have pleaded guilty. Battle v. State, 234 Ga. App. 143, 145 (4) (505 SE2d 573); Edmond v. State, 214 Ga. App. 707, 708 (2) (448 SE2d 775). Defendant carries an even heavier burden on appeal because the trial court’s finding on these issues will not be disturbed absent a showing of clear error. Martin v. State, 268 Ga. 584, 585 (492 SE2d 223).

In the case sub judice, defendant’s trial attorney testified that he began consulting with defendant more than two months before the guilty plea hearing; that he interviewed two potential defense witnesses during this time (defendant’s adult male friend and defendant’s wife, the victim’s mother); that he reviewed the victim’s video-recorded statement; that he copied and examined the State’s file; that he assigned investigators to contact defendant’s first lawyer; and that he advised defendant as to the consequences of a letter wherein the victim recants his claims against defendant. This testimony, and the strong presumption that defendant’s trial attorney provided effective assistance, authorizes the trial court’s finding that defendant was provided with effective assistance of counsel. Battle v. State, 234 Ga. App. at 145 (4), supra.

2. Defendant next contends that he did not voluntarily, freely, and knowingly enter his guilty pleas.

“After a prisoner raises the question of the validity of his plea of guilty, the burden is on the state to show that the plea was intelligently and voluntarily entered. The state may accomplish this end by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” Roberts v. Greenway, 233 Ga. 473, 475 (211 SE2d 764) (1975). Whether to allow the withdrawal of a voluntarily, intelligently entered guilty plea after the pronouncement of sentence is within the sound discretion of the trial court. State v. Germany, 246 Ga. 455, 456 (271 SE2d 851) (1980).

Holman v. State, 236 Ga. App. 111, 114 (2) (511 SE2d 240).

In the case sub judice, before the trial court took defendant’s guilty pleas, the State’s attorney outlined its case against defendant. Defendant was present during this presentation. The trial court then asked defendant a series of questions concerning the knowing and voluntary nature of defendant’s proposed guilty pleas. The trial court specifically asked defendant whether defendant’s lawyer had explained the charges against him, whether he understood the rights he was giving up by pleading guilty, and whether he had a chance to thoroughly discuss his case with his lawyer. Defendant answered all of these questions affirmatively. He also affirmed that no one had threatened or promised him anything in exchange for his guilty pleas. And he finally affirmed that he understood the maximum sentences he could receive for pleading guilty to two counts of child molestation and that he understood the State’s recommended sentences. The record thus shows that defendant knowingly and voluntarily entered the guilty pleas. Defendant’s testimony (at the hearing on his motion to withdraw his guilty pleas) that he did not understand what he was doing when he entered the guilty pleas in question presented a credibility question for the trial court. Manues v. State, 232 Ga. App. 454, 455 (501 SE2d 826). The trial court did not abuse its discretion in rejecting this testimony and denying defendant’s motion to withdraw his guilty plea.

3. Since defendant pleaded guilty after the trial court refused his request to enter the guilty pleas without admitting guilt, defendant cannot complain that the trial court erred in refusing to accept his guilty pleas under the procedure set forth in North Carolina v. Alford, 400 U. S. 25, supra. No matter how erroneous a ruling may be, a defendant may not submit or acquiesce in the ruling, and then complain about it on appeal. Boatright v. State, 192 Ga. App. 112, 116 (5) (385 SE2d 298).

Decided October 12, 1999.

Lynch, Spears & Shuman, John PL. Tarpley, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Maria Murder-Ashley, Lawrence Delan, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.


author: Blackburn, Presiding Judge.

text:
    A99A2163.
    SMITH v. THE STATE.
    (525 SE2d 707)
   Blackburn, Presiding Judge.

Jaime Ann Smith appeals the trial court’s denial of her motion for discharge and acquittal for driving under the influence, striking a fixed object, and violating open container laws, contending that her right to a speedy trial was denied. For the reasons set forth below, we affirm.

Smith was cited for the offenses listed above on August 28,1998. The uniform traffic citations were filed with the City Court of Atlanta on August 31,1998, and Smith filed a motion for speedy trial on September 23, 1998. On January 25, 1999, Smith filed a motion for discharge and acquittal, contending that her right to a speedy trial had been denied because she had not been tried at the term when the demand was made or at the next succeeding regular term thereafter in accordance with OCGA § 17-7-170.

In support of her motion, Smith argued that the City Court of Atlanta should be considered to have the same two-month terms of court held by the State Court of Fulton County. OCGA § 15-7-40, Ga. L. 1983, p. 4501, § 1. The legislative act creating the City Court of Atlanta, however, provides that this court shall have two six-month terms of court. Ga. L. 1996, p. 635, § 20. Therefore, Smith’s contention that her right to a speedy trial was violated is patently erroneous, as her motion to discharge and acquit was filed only four months after her speedy trial request.

To the extent that Smith has attempted to argue that the difference in the terms of court between the state court and the city court violates her equal protection rights, our Supreme Court has considered a similar argument in the past and rejected it. See Henry v. State, 263 Ga. 417 (434 SE2d 469) (1993).

Decided October 12, 1999

Robert S. Devins, for appellant.

Joseph J. Drolet, Solicitor, Shondeana G. Crews, Assistant Solicitor, for appellee.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.


text:
    A99A2463.
    In the Interest of T. T. et al., children.
    (525 SE2d 707)
    Decided October 12, 1999.

      Richard M. Darden, John D. Gatch, for appellant.

      Thurbert E. Baker, Attorney General, Shalen A. Sgrosso, Assistant Attorney General, for appellee.
   McMurray, Presiding Judge.

The Chatham County Juvenile Court terminated the parental rights to the minor children, T. T. and T. T., ages eight and twelve years old, placing them in the permanent custody of relatives of appellant, the natural father. He challenges the sufficiency of the evidence. Held:

Viewed in the light most favorable to the juvenile court’s determination, appellant’s history of domestic violence, his current eight-year incarceration for probation violation (subsequent convictions), the previous transfer of temporary custody because the children were deprived, and his demonstrated inability to provide a stable home environment are clear and convincing evidence supporting the juvenile court’s conclusions that the children are deprived due to appellant’s misconduct; that such deprivation is likely to continue; and that a transfer of permanent custody to appellant’s brother and his wife is in the best interest of the children. In the Interest of K. S. W., 233 Ga. App. 144, 147-148 (1), (2) (503 SE2d 376). This is sufficient under OCGA § 15-11-81 (b) (4) (A) (i)-(iv) to authorize the termination of appellant’s parental rights.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.


author: Ruffin, Judge.

text:
    A99A1294.
    JONES v. THE STATE.
    (523 SE2d 402)
   Ruffin, Judge.

A jury found Audley Jones guilty of burglary. Jones argues on appeal that the trial court improperly denied his Batson challenge and allowed the State to strike a black juror because of her race. In the alternative, Jones argues that the same juror was impermissibly struck because of her disability. Finally, he asserts that the trial court erred in failing to declare a mistrial when the prosecutor made improper remarks to the jury during voir dire. We reject all three arguments and affirm.

1. The jury for Jones’ trial was selected from thirty persons, seven of whom — or approximately twenty-three percent — were black. The State exercised five of its twelve peremptory challenges and used four of those five — or eighty percent — to strike black venirepersons. The State accepted three black jurors, one of whom was struck by Jones. The final jury — consisting of two blacks, ten whites, and one white alternate — was 16.7 percent black.

Jones challenged the State’s strikes as racially discriminatory under Batson v. Kentucky. Based on the high percentage of black jurors struck by the State, the trial court found that Jones established a prima facie case of racial discrimination and required the prosecutor to state his reasons for the strikes. The prosecutor offered reasons satisfactory to Jones for striking three of the four black jurors. But as for the fourth black juror, Lizzie Hood, Jones argued that the prosecutor’s stated reasons were pretextual.

The questioning of juror Hood during voir dire was as follows:

HOOD: My name is Lizzie Hood. I’m disabled. My husband name Milton. He’s dead. I got four children, two dead, two living. My oldest child is 29. Daughter is 22. And I never did serve on a jury.
[PROSECUTOR]: Ma’am, did your family move here from the Lexington area from Oglethorpe County?
HOOD: No sir.
[PROSECUTOR]: That’s just where you were born?
HOOD: I was born in Oglethorpe, Lexington, Georgia.
[PROSECUTOR]: What brought your family to Athens?
HOOD: All my children were bom in Athens.
[PROSECUTOR]: Had to come be with the children?
HOOD: I moved from Oglethorpe in ‘69.
[PROSECUTOR]: Are you the member of any social, business, or religious organizations?
HOOD: No.
[PROSECUTOR]: How is your 29-year-old child employed?
HOOD: How he go? He’s on his own.
[PROSECUTOR]: What does he do for a living?
HOOD: He works over there at the University.
[PROSECUTOR]: And your 22-year-old?
HOOD: My daughter?
[PROSECUTOR]: Yes.
HOOD: She work at Seaboard Poultry at night.
[PROSECUTOR]: Thank you, ma’am.
[DEFENSE]: Ms. Hood, anything you’d answer differently?
HOOD: No.
[DEFENSE]: You think you could be fair and impartial?
HOOD: Yes, I would.
[DEFENSE]: And follow the Judge’s instructions on the law?
HOOD: Yes.
[DEFENSE]: Just follow the facts closely?
HOOD: (No audible response.)
[DEFENSE]: Thank you, ma’am.

The prosecutor offered two reasons for striking Hood. His “main reason” was his concern that she might be overly sympathetic to Jones. As he put it,

Ms. Hood indicated during voir dire that first of all she was disabled. Second of all her husband was deceased. And third she had lost two children in her lifetime. The fact that she has gone through these events in her life, I have a fear that she has, she’s going to have some type of sympathy or overwhelming feeling towards persons that might play a factor in the case, and I struck her because of the negative impact she’s had in her lifetime. . . .

Later, the prosecutor added:

I want to make sure the record is clear because I’m not sure [defense counsel] heard this.- Ms. Hood indicated that not only had she lost her husband, she’d lost two of her children. She only has two children remaining in life. My gut instinct tells me that people, people like that can have a tendency to be sympathetic toward people who have hard times which [sic] as Mr. Jones has right now. And that he’s facing a trial. And for that reason I struck her because of the potential of sympathetic feelings because of her own hard times that she’s had.

In addition, the prosecutor stated that “Ms. Hood had difficulty in understanding some of my questions, and I had to rephrase them several times in getting her to answer those questions.” Accordingly, the prosecutor expressed concern that Hood “might have the same difficulties of the questions being asked witnesses.”

The trial judge upheld the State’s striking of Hood. The judge stated that he understood the prosecutor to be saying that he had struck Hood because of a concern that her overall life circumstances would make her more sympathetic to people “battling it out and having a hard time in life,” like Jones. The judge also noted that the prosecutor felt Hood could not understand his questions, but the judge did not express an opinion as to Hood’s responsiveness.

Assuming Jones established a prima facie case of race discrimination under Batson, the burden shifted to the State to “set forth a race-neutral, case-related, clear and reasonably specific explanation” for striking Hood. That reason did not have to be persuasive or even plausible, but only one that did not deny equal protection. Jones bore the ultimate burden of persuading the trial court that the State acted with discriminatory intent. Jones could carry this burden by (1) showing that the State did not strike similarly situated white jurors or (2) showing that the State’s explanation for the strike was “so implausible or fantastic that it render [ed] the explanation pretextual.” In determining whether Jones met this burden, we are required to give “great deference” to the factual findings of the trial court, and we may disregard them only if they are clearly erroneous.

We first examine whether the prosecutor’s main explanation for striking Hood — his fear that she might be overly sympathetic to Jones — was facially race-neutral. We agree with the trial court that it was, because people of any race can experience hardships in life. Jones does not argue otherwise on appeal. Of course, we are not required to accept an explanation for a peremptory strike simply because it is facially race-neutral. If the explanation was “so implausible or fantastic” that it could not be believed,' then we assume that race was the real reason for the strike. Here, however, we conclude that Jones failed to carry the ultimate burden of showing that the prosecutor’s race-neutral explanation could not be believed.

In evaluating the persuasiveness of the prosecutor’s explanation, we are concerned only with “whether the trial court’s credibility determination that racial motivation did not exist was clearly in error.” The prosecutor explained that he thought Hood’s hardships might predispose her to sympathy for a criminal defendant, and the trial court — who had the better opportunity to observe the prosecutor’s demeanor and assess his credibility — believed him. After reviewing the transcript, we are unable to find clear error in the trial court’s conclusion that the explanation was believable.

Jones argues that the explanation was pretextual because Hood’s disability and the death of her husband and two children bore no relation to any issue in the burglary case. Although explanations for peremptory strikes must be reasonably case-specific, we have not required the proponent of the strike to draw a direct link between the characteristic of the juror that prompted the strike and particular facts in the case. In Parker v. State, for example, we accepted a prosecutor’s explanation that he struck a juror because he was a criminal justice major and would likely “take a microscopic view of the evidence, have an extremely narrow perspective of reasonable doubt, and therefore not be a good State’s juror.” Such an explanation would readily apply in any criminal case. Likewise, we have upheld strikes of jurors based on their employment status, age, and family situations, based solely on the prosecutor’s apparent general preference for older, stable, conservative jurors. While an explanation for a strike must bear on an individual’s ability to serve impartially as a juror in the case, it need not be tightly linked to specific details in that case.

Jones also argues that the prosecutor failed to ask more specific questions to find out if his assumptions about Hood’s sympathies were, in fact, founded. Certainly, the prosecutor’s explanation is based on stereotypical thinking that a person who has suffered hardships is more likely to be sympathetic. But this is not racially stereotypical thinking. Jones has the burden to show that the prosecutor’s reason was implausible or fantastic, and he cannot carry that burden merely by pointing to the prosecutor’s reliance on a non-racial stereotype. In Turner v. State, the Supreme Court stated that “[t]he prosecutor’s failure to ask questions does not evidence racial animus.” Perhaps Jones’ attorney could have elicited evidence of discriminatory intent — assuming such intent existed — through further questioning of Hood or of other jurors on the panel. But he did not, and so there is no evidence that the explanation is so implausible that it must have been a ruse.

Moreover, we must consider the plausibility of the prosecutor’s explanation in light of the reasons he gave for other peremptory strikes and in light of the strength of the prima facie case of discrimination. “The persuasiveness of a proffered explanation may be magnified or diminished by the persuasiveness of companion explanations, and by the strength of the prima facie case.” Both of these factors weigh against Jones.

First, the prima facie case was weak. Although the prosecutor exercised four of five peremptory strikes on black venirepersons, he accepted three black jurors — even though he had ample strikes remaining. The percentage of blacks on the jury chosen (16.7 percent) was somewhat close to the percentage of blacks in the jury pool (23 percent), and would have been even higher if Jones had not struck one of the black jurors accepted by the prosecutor.

Second, the prosecutor’s explanations for his other strikes of black jurors were race-neutral and plausible. The prosecutor struck one black juror because he had a pending criminal charge against him in the same county; another black juror because she admitted feeling partial toward a defendant who had recently been prosecuted by Jones’ prosecutor; and a third black juror because he wanted to reach the next juror on the panel, who was young, conservative, and married with children. Jones’ attorney admitted that all three of these reasons were legitimate, and he did not challenge the strikes of those jurors. Thus, when viewed as a whole, the jury selection in this case was not tainted by racial animus. Accordingly, the prosecutor’s reasons for striking juror Hood were not required to be airtight.

In sum, the prosecutor gave a race-neutral reason for exercising a peremptory strike against Hood. Because the trial court did not clearly err in finding that Jones failed to carry his burden of showing that the prosecutor’s explanation was too fantastic to be believed, we find no Batson violation.

2. Jones also contends that the prosecutor impermissibly struck juror Hood because of her disability. Whether a peremptory strike based on a juror’s disability runs afoul of the equal protection clause appears to be an issue of first impression in this Court. Assuming, without deciding, that a strike based on disability would violate Bat-son, we uphold the trial court’s conclusion that the prosecutor did not, in fact, strike Hood because of disability.

During voir dire, juror Hood described herself as “disabled.” That was the first statement she made, after giving her name, and she volunteered it without any prompting by the attorneys or the trial court. Hood did not explain the nature of her disability or how it might affect her jury service, and it appears from the transcript that whatever disability she may have is not readily apparent. In the same introductory statement, Hood explained that her husband and two of her children were deceased.

During the Batson hearing, Jones’ attorney protested that the prosecutor had struck Hood because of her disability, which was “completely irrelevant unless she has indicated some reason why she for a physical reason could not serve.” The trial court found that the prosecutor struck Hood not because of her disability, but because of his concern that the pattern of hardships — which apparently included a disability of some kind — that Hood immediately revealed during voir dire might predispose her to be sympathetic to the defense:

Well, now, here’s how I interpreted it. You can’t strike somebody because they’re disabled. Correct me if I’m wrong. I interpreted it [that the prosecutor] means that he said sympathy because of her overall condition. Disabled or what. ... [H]e says he struck her he felt because she would have sympathy for the Defendant because of the Defendant’s being battling [sic] it out and having a hard time in life. . . .

We cannot say that the trial court’s interpretation of the prosecutor’s explanation is clearly erroneous.

After the prosecutor stated his neutral explanation for the strike, Jones bore the burden of proving that the explanation was really a pretext for discrimination. As discussed in Division 1, Jones failed to carry that burden. Accordingly, the trial court properly denied his Batson challenge.

3. Finally, Jones argues that the trial court erred by failing to declare a mistrial after the prosecutor referred to the fact that defense counsel worked for Legal Aid. Whether to grant a mistrial is within the discretion of the trial court, and we will not disturb the trial court’s ruling unless a mistrial was required to preserve the defendant’s right to a fair trial. We find no abuse of discretion here.

During voir dire, the prosecutor asked the panel as a whole if they knew anything about the case or any of the attorneys involved in it. Specifically, the prosecutor asked:

Other than your brief contact with him this morning, do any of you know Mr. Fieman, the Defendant’s defense attorney? This case involves a burglary that took place on February the 22nd of 1998, off of West Hancock Avenue. Do any of you know anything about this particular case? Mr. Fieman is employed with the Legal Aid Clinic here in Athens — .

At that point, defense counsel objected and requested a bench conference, at which he moved for a mistrial on the ground that the prosecutor’s comment prejudicially suggested to the jury that Jones was indigent. The prosecutor responded that he was merely inquiring whether the jurors knew anyone who worked in defense counsel’s office. The trial court then instructed the jurors to disregard what they had heard about defense counsel’s place of employment, told the jurors that such information was not relevant to the case, and asked whether any juror would hold against Jones the fact that he was being defended by the Legal Aid Office. No juror raised a hand. The trial court then denied Jones’ motion for a mistrial.

The Supreme Court has previously ruled that a prosecutor’s references to the fact that a defendant had appointed counsel did not prejudice the defendant. Here, the record shows that the prosecutor’s reference to Legal Aid was not gratuitous, but was made while asking whether the prospective jurors knew one of the attorneys in defense counsel’s office — a legitimate line of inquiry. Moreover, the trial court gave a prompt and thorough curative instruction. Under these circumstances, the trial court did not abuse its discretion in failing to grant a mistrial.

Decided October 13, 1999

Colin A. Fieman, for appellant.

Harry N. Gordon, District Attorney, Michael E. Eherhardt, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.

       476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       The preliminary issue of whether he established a prima facie case is moot because the prosecutor offered explanations for his strikes and the trial court ruled on the ultimate issue of intentional discrimination. See Parker v. State, 219 Ga. App. 361, 362 (1) (464 SE2d 910) (1995).

        Ware v. State, 232 Ga. App. 165, 166 (2) (500 SE2d 601) (1998).

        Berry v. State, 267 Ga. 605, 608 (5) (481 SE2d 203) (1997).

        Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996).

       Id.

        Lingo v. State, 263 Ga. 664, 666 (1) (b) (437 SE2d 463) (1993).

        Turner, supra at 151.

       (Punctuation omitted.) Hudson v. State, 234 Ga. App. 895, 899 (2) (508 SE2d 682) (1998).

       The charge against Jones stemmed from a residential break-in that was interrupted by the homeowner. Jones’ defense at trial was that the homeowner mistakenly identified him as the burglar.

       Supra at 362.

       See Gilbert v. State, 226 Ga. App. 230, 231 (486 SE2d 48) (1997).

       See Robert v. State, 227 Ga. App. 26 (488 SE2d 105) (1997).

       See Turner, supra at 152-153.

       See Smith v. State, 232 Ga. App. 458, 460 (1) (501 SE2d 622) (1998) (inquiry is whether strike “was based on a characteristic or stereotype peculiar to any race”) (punctuation omitted; emphasis supplied).

       See Knuckles v. State, 236 Ga. App. 449, 452-453 (1) (b) (512 SE2d 333) (1999) (upholding prosecutor’s strike of juror with nose ring because such an “unconventional method! ] of self-adornment. . . may indicate youthful rebellion against authority and convention, or anti-social attitudes, or identification that would extend across gender and racial lines”).

       Supra at 153.

        Kelly v. State, 209 Ga. App. 789, 792 (1) (434 SE2d 743) (1993); Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987).

       Id.

       See Knuckles, supra at 452 (1) (b) (“[W]here the prima facie case is not strong, and there are minorities on the jury, the reasons given do not have to be as strong ... for the trial court to accept the reasons as racially neutral.”).

        Jones v. State, 267 Ga. 592, 596 (3) (481 SE2d 821) (1997).

       Id.; Holiday v. State, 258 Ga. 393, 398 (11) (b) (369 SE2d 241) (1988).