text:
    76082.
    BONDS v. THE STATE.
    (372 SE2d 448)
   Beasley, Judge.

Frances Bonds was indicted in three counts, of possession and control, with intent to distribute, of over an ounce of marijuana (OCGA § 16-13-30 (j)); trafficking in cocaine by being in actual possession of more than 28 grams thereof (OCGA § 16-13-31 (a)); and possession and control of cocaine, with intent to distribute it (OCGA § 16-13-30 (b)). She was convicted of the latter two charges and of possession of less than an ounce of marijuana (OCGA § 16-13-2 (b)), a misdemeanor.

Appellant’s first and second enumerated errors are that the trial court erred in denying appellant’s motion to suppress and in overruling appellant’s objection to the introduction into evidence of items seized from appellant’s purse.

The following general principles of law apply: (a) this court cannot consider factual allegations in the briefs of the parties which are not supported by evidence contained in the record, Konscol v. Konscol, 151 Ga. App. 696 (1) (261 SE2d 438); (b) in reviewing a suppression motion or an objection made at trial to the admission of evidence, which was the result of an alleged illegal search or seizure, this court can consider all relevant evidence introduced at a pretrial hearing, an appropriate post-trial hearing, or at trial, Sanders v. State, 235 Ga. 425, 431-432 (219 SE2d 768); (c) the burden of proving that search and seizure were lawful rests with the State, see e.g., OCGA § 17-5-30 (b).

Certain items were found in Mrs. Bonds’ purse when it was searched in execution of a search warrant. The warrant was issued, with a “no-knock” provision, when the magistrate was satisfied by the detective’s affidavit that he had reason to believe that on Lenny Bonds “and any other persons on the (residential) premises who might reasonably be involved in” violations of the controlled substances act, there was presently being concealed marijuana and hashish. Challenged is the execution of the warrant, OCGA § 17-5-28, (not its issuance or its provisions) in terms of the Fourth and Fourteenth Amendments. No state constitutional claim is advanced so such will not be addressed. See State v. Camp, 175 Ga. App. 591, 592 (1) (333 SE2d 896) (1985).

The affidavit for the warrant spelled out that an informant gave information that he had recently observed marijuana and hashish being stored at Lenny Bonds’ residence and that Lenny receives drugs from his father Linzie Bonds. The officer affiant stated that he and the informant saw a white Cadillac at the premises, which the informant said was Linzie’s. The officer also stated that he knew Linzie, that Linzie was known to be armed at times, and that the informant told him that Linzie keeps a pistol with him.

After the warrant was issued and before it was executed, the police watched Lenny Bonds’ home for several days. An unspecified number of people was observed visiting the premises, staying for a short time and leaving. One of the cars observed was a white Cadillac. It was reported that appellant and her husband would visit their son’s home several times a week.

When the police entered the residence after announcing their identity, Mrs. Bonds was sitting on the couch alone, with the purse a few inches away directly next to her. Since it was in her immediate area, it was seized to prevent her access to what was in it. It was not immediately searched because the officers first secured the premises by accounting for all occupants. In securing the premises so as to assure control of it and the occupants and in commencement of the warrant’s execution, it was then searched while the officer was just “a few feet, five or six” from her, so that the purse could be returned to her if its contents were innocent. In it, however, were a makeup-type bag which contained three plastic bags of white powder, one of them containing twelve smaller plastic bags of white powder and another containing ten plastic bags of white powder, and a hand-rolled cigarette; scales with white powder residue; a .38 caliber revolver; a digital beeper; and Mrs. Bonds’ driver’s license. The white powder was found to be constituted of about 50 percent cocaine and to weigh over 64 grams.

At the time the police entered, two teenage girls were also in the living room occupied by Mrs. Bonds, and her husband, Linzie Bonds, was in the hallway. Although the officer did not yet know at the moment of the purse search that she was Linzie’s wife, it was reasonable to believe that she had come with him since his white Cadillac was parked outside.

The officer testified that the purse was searched because it was in the premises to be searched and because of the nature of what was being searched for (marijuana and hashish); that is, it could be holding such items, since it was believed that contraband was being repeatedly brought into the premises by a man who was right then present. It was reasonable to believe that some of the drugs were concealed in the purse for transport to the premises. As a matter of fact, that is exactly what Linzie testified had been done, demonstrating that it was not an unreasonable belief.

The very reason for the no-knock allowance, that is, easy concealment or destruction, gave reason as well for a search of the purse, because of the nature of what was sought by the warrant. The warrant sought evidence of illegal drug activities which, based on the affidavit regarding “storage,” perforce and as a matter of logic necessitated bringing drugs into the residence. This is similar to the relationship between information about ongoing sales at the premises and the “other persons” authorization upheld in Jenkins v. State, 184 Ga. App. 844 (363 SE2d 35) (1987). Thus a container then on the premises, capable of holding the evidence sought and having been brought by a person reasonably believed to be connected with the named source, had a nexus with the targeted criminal activities. See Blount v. State, 181 Ga. App. 330, 335 (4) (352 SE2d 220) (1986). The purse’s owner was not a “mere” visitor, as in Childers v. State, 158 Ga. App. 613 (281 SE2d 349) (1981), and Hawkins v. State, 165 Ga. App. 278 (300 SE2d 224) (1983). Importantly, the warrants in Childers v. State, supra, and Hawkins v. State, supra, did not contain language authorizing the search of other persons present on the premises who might reasonably be involved in the subject criminal activity.

During surveillance before the warrant was obtained, cars were seen coming and leaving the residence after short stops, and on this occasion, a person came to the door while the police were inside; he was searched and a controlled substance found. The officer knew there had been traffic to the residence that very day, and the police were particularly watching for Linzie Bonds’ white Cadillac, which was there when they went in. The reason they were watching for it and him was that they had information that he was taking contraband drugs to his son and they were stored at the residence.

There was a second, independent reason given by the officer for the search: to fully secure the people found on the premises and the things near the people, for the officers’ safety. The officer who searched the purse had information that there were weapons at the location.

This physical inquiry was less invasive than searching her person, which likely would not normally be done in the absence of a female officer, and it would be reasonable to believe that if a woman with a purse had a weapon it would be in the purse rather than on her person. Patting down a person, moreover, would reveal a weapon to touch. Merely patting down a purse, even if it was pliable, would not do so as the nature of the objects felt would not necessarily identify them as non-weapons. The search for weapons must only “be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Wyatt v. State, 151 Ga. App. 207, 210 (1) (a) (259 SE2d 199) (1979), quoting earlier cases.

With regard to the weapons aspect, this was nothing more nor less, at the least, than a Terry-type search of the purse to which Mrs. Bonds had access when the police arrived and of which would again have control when the officer left the room. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). That is, it was an authorized protective search for weapons. See also Gumina v. State, 166 Ga. App. 592, 595 (305 SE2d 37) (1983) regarding the applicability of OCGA § 17-5-28 and the search for weapons. As repeated and discussed in Michigan v. Long, 463 U. S. 1032, 1050 (103 SC 3469, 77 LE2d 1201) (1983), “ ‘(t)he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ ” The officer’s prudence does not amount to unconstitutional intrusion on Frances Bonds’ Fourth and Fourteenth Amendment right against unreasonable searches and seizures.

Checking this purse was not more invasive or less reasonable than checking all purses before allowing persons with public business to enter courthouses or allowing persons with private business to enter airplane departure areas of airports, which are common. Here there was at least a search warrant for the premises, a private residence, in which this purse was by its nature a holding object and one capable of concealment of such items as drugs or weapons. And the neutral and detached magistrate had found probable cause to believe that “other persons” present, under the circumstances existing when the warrant would be executed, would be in possession.

In this case, the discovery of the very items, sought tends to show that the pre-discovery belief aroused by the environment was not an unreasonable basis for the cautionary action.

Had the gun and the contraband not been secured quickly and before the officer left Mrs. Bonds to participate in the further search of the premises, she would have been able to remove and secrete or destroy the concealed contraband and use the gun. What was he supposed to do, leave the purse at the end of the couch where he had removed it to from her immediate reach, and allow her access to its contents when he turned his back to leave the room? Moving it out of her reach did not extinguish the right to search it because 1) she would have access to it as soon as he left the room and 2) even if he seized it and took it out of the room, he would have to return it at some point and would still not be secure.

We have found no authority under the aegis of the Fourth and Fourteenth Amendments, which is appellant’s ground, to compel excluding from the search, authorized by the scope of the warrant, the purse which was at the hand of one of the persons in the premises when the police executed the warrant. See United States v. Giwa, 831 F2d 538, 543 (B) (5th Cir. 1987). Wood v. State, 224 Ga. 121 (1) (160 SE2d 368) (1968), holds that the statute meets Fourth Amendment requirements because it does not allow the search of other persons based on their “mere presence” but authorizes only searches of such other persons as will serve one of two express limited purposes.

Until the contents of the purse were disclosed, it posed a possible danger and constituted a possible container of the very items sought. Under the circumstances, it was not within a zone of Mrs. Bonds’ privacy excluded from the confines of the warrant just because it apparently, and actually, belonged to a person whose name was not on the warrant and who was at the time occupying her son’s residence along with her husband, daughter, and the latter’s two friends. She was not visiting her son, because he was not at home. Her status as a visitor does not remove her purse from examination, because there were indicators that she was not an innocent visitor but rather a person involved in the type of criminal activity underlying the warrant. See Willis v. State, 122 Ga. App. 455, 457 (177 SE2d 487) (1970). There was a nexus between her and the criminal activity which gave rise to the warrant. See State v. Hawkins, 187 Ga. App. 826 (_SE2d_) (1988), which, although it is nonbinding, discusses this relationship. Drugs being stored must be brought in, and here the information was that they were periodically being brought in by a visitor then present, with whom it appeared this visitor had come with her purse. Just as in Willis v. State, supra, it was possible that this visitor was concealing contraband sought.

This case is not controlled by Ybarra v. Illinois, 444 U. S. 85 (100 SC 338, 62 LE2d 238) (1979), because Ybarra involved a public tavern rather than a private residence, and it did not involve the search of a container which could contain contraband or weapons. Furthermore, there was no evidence of a connection between the tavern customer there and the targeted bartender, whereas here the female occupant obviously had a personal connection with the resident or with the suspected Linzie Bonds who was present at the same time, in the absence of the resident, or else she was an intruder.

Judgment affirmed.

Deen, P. J., and Banke, P. J., concur. McMurray, P. J., and Carley, J., concur in the judgment only. Birdsong, C. J., Sognier, Pope, and Benham, JJ., dissent.

Birdsong, Chief Judge,

dissenting.

I dissent because (a) the majority opinion does not accurately represent certain material facts and implies that the police held certain beliefs contrary to their trial testimony; (b) the search of appellant’s purse violated both her state and federal constitutional rights against unreasonable searches; and, (c) the constitutional issues were timely raised by appellant and require our consideration.

Appellant filed a pretrial suppression motion challenging the issuance of the warrant on grounds including both the violation of the State and Federal Constitutions, and challenging the validity of the search on similar grounds. On appeal appellant enumerates certain errors including that the trial court erred in denying her suppression motion and by overruling her timely objection to the introduction into evidence of items “found” in her purse. In her brief appellant argues the want of an “independent justification” for the search of her purse, which inherently includes the Fourth and Fourteenth Amendment issues of reasonableness of search. These issues are most serious and mandate careful appellate consideration. See, e.g., OCGA § 5-6-48 (f).

The effect of the majority opinion, in view of the actual posture of the facts of this case, is to condone the execution of a general exploratory provision inserted into a search warrant. These types of search warrant provisions are prohibited and void. Lo-Ji Sales v. New York, 442 U. S. 319 (99 SC 2319, 60 LE2d 920); Collins v. State, 187 Ga. App. 430 (370 SE2d 648); compare with Willis v. State, 122 Ga. App. 455 (177 SE2d 487).

Searches of persons not named in a search warrant but found on the premises are illegal absent independent justification for personal search. Wyatt v. State, 151 Ga. App. 207 (1) (259 SE2d 199). The general language in the warrant could not standing alone supply independent justification for the search of appellant’s property. Id. However, the State could justify the officer’s search of appellant’s purse provided that it proved the search was conducted in compliance with the statutory provisions of OCGA § 17-5-28, as that statute has been construed to meet existing constitutional requirements. See Wyatt v. State, supra at 209.

OCGA § 17-5-28 provides two bases for search. The first statutory basis of OCGA § 17-5-28 (1) is to protect the officer from attack. To meet constitutional requirements, any search conducted on this basis must comply with Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889). Terry requires that the officer who has lawfully detained a citizen must have and be able to articulate “a reasonable belief that [the citizen] was armed and presently dangerous” to authorize “a patdown of [his] person for weapons.” (Emphasis supplied.) Ybarra v. Illinois, 444 U. S. 85, 92 (100 SC 338, 62 LE2d 238); Terry v. Ohio, supra at 24, 27 and 30; see Brown v. State, 181 Ga. App. 768 (1) (a) (353 SE2d 572). In this case, the facts when viewed in totality conclusively demonstrate that the searching officer did not have or articulate any reasonable belief for concluding that the appellant was armed and dangerous or that she was carrying a weapon in her purse. In fact, Detective Stancil testified at the suppression hearing that although the purse was secured so appellant could not have access to it, he “didn’t know if there was any weapons or anything” in it. Additionally, as a totally separate issue, the record is silent as to the construction of the purse, thus it cannot be ascertained whether or not it could have been subjected to an effective “patdown.” However, the record discloses that Detective Stancil did not attempt to “patdown” the purse in any manner prior to subjecting it to a “full” search. Thus, he did not discover any hard object or other item by the “patdown” process, which might have provided a basis under Terry for a further intrusion therein (assuming the “patdown” requirement of reasonable belief had first been met in this case, which it had not).

The second statutory basis of an OCGA § 17-5-28 (2) search is “[t]o prevent the disposal or concealment of any . . . things particularly described in the search warrant.” The following facts are relevant: Detective Stancil, the searching officer, testified at the suppression hearing that he searched the purse “to see if there was any contraband drugs being stored in [the] pocketbook,” because “[we search anything and everything in the location when we’re there. . . .” At no point in his testimony did Detective Stancil even express any articulable suspicion, let alone any basis for probable cause, that the appellant’s purse contained drugs or other contraband. Appellant had been under Detective Stancil’s constant observation since the police kicked down the door to the residence, and she had done nothing suspicious. Moreover, the police were unaware of the appellant’s identity until after the search of her purse; and, the record discloses that the police did not voice any suspicion that she was in any way connected with anyone named in the warrant until after the purse search was completed. The police testified further that appellant was not arrested until after the purse search; moreover, no probable cause existed for her arrest prior to the purse search.

A search conducted under the authority of OCGA § 17-5-28 (2) must be based on probable cause; otherwise, the statute would be subject to serious constitutional challenge. Ybarra v. Illinois, supra at 94-96 and 96 n. 10 and 11. Clearly, the facts of this case establish that OCGA § 17-5-28 cannot legitimize the search of appellant’s purse, and interestingly the majority avoids effectively discussing its provisions. However, to the extent that the majority opinion attempts to justify the purse search on the basis of Terry, it is also in error. For reasons above discussed, the facts of this case did not justify a “full” search of appellant’s purse for weapons. Secondly, Terry does not provide authority to conduct a “full” search of either a person or his property or to “aid the evidence-gathering function of the search warrant” in the absence of “probable cause.” Ybarra v. Illinois, supra at 94-96; Scott v. State, 253 Ga. 147, 149 (317 SE2d 830); see generally Daniel, Ga. Criminal Trial Practice § 4-16.

Under the facts of this case, the police even lacked any articulable suspicion or belief that appellant was in the possession of drugs. Thus, the state of the evidence does not come close to establishing the necessary “probable cause” required by OCGA § 17-5-28 (2) and Terry/Ybarra to justify a “full” search of appellant’s purse for possible drugs. Accordingly, the conduct of the police under the facts of this case violated appellant’s rights both under the Fourteenth and Fourth Amendment of the United States Constitution and under Art. I, Sec. I, Par. XIII of the Georgia Constitution.

The majority ultimately attempts to justify this search on the basis of necessity. The mere fact a weapon was found in the purse as a result of illegal police conduct does not provide a legal basis for rendering an illegal search legal. Wong Sun v. United States, 371 U. S. 471, 484 (83 SC 407, 9 LE2d 441); Willis v. State, supra at 457. The police in this case clearly searched appellant’s purse only as a matter of police routine because the warrant contained a general exploratory search provision. Not a single officer testified at trial or at the suppression hearing that they perceived themselves in any danger from appellant, and their conduct towards her at the scene is totally consistent with such a belief. Terry holds that in determining whether the officer acted reasonably in the circumstances, due weight must be given to the specific reasonable inferences which he is entitled to draw from the facts “in light of his experience.” Terry v. Ohio, supra at 27. This test cuts both ways! When the officers draw specific reasonable inferences, based on their professional experience, that an appellant poses no danger to them, we should respect those inferences and not supply after-the-fact rationalizations to justify conduct motivated by entirely different reasons. Further, if the police wanted to ensure appellant did not gain access to her purse while they were still on the premises, this could have been arranged easily without violating appellant’s constitutional rights. All that had to be done was to usher everyone, both those to be arrested and those to be released, outside the premises, while leaving the purse inside; and, then not allowing anyone to go back into the premises until after the police drove away in obvious safety with those to be arrested. This procedure would have protected the police while leaving the appellant behind, constitutional rights intact, to subsequently retrieve her purse. Moreover, the dissent does not claim that given these same circumstances, the police could not on another occasion articulate a reasonable belief for the immediate patdown of appellant and her purse. We only note that these particular officers in light of their experience did not have such a belief or conduct such a patdown procedure.

Finally, I am compelled to comment on certain factual inferences and analogies contained in the majority opinion. The majority opinion repeatedly attempts to connect the appellant with her husband,

Linzie Bonds, in such a manner as to imply that the police conducting the search actually held, at least, a reasonable belief that she had some connection to her husband and the drug operation before they searched her purse. The trial record not only does not support this inference, it shows that the police neither knew who the appellant was nor harbored any belief as to how she arrived at the premises at least until after her purse was searched and her driver’s license found. In fact, the police testified to their lack of knowledge of her identity before the search, and to their lack of any prior information connecting her to any drug activity. They did not testify that they either suspected or had probable cause to believe her purse contained drugs merely because she and teenage girls were found in the same house as Linzie Bonds. The majority further states that appellant “was not visiting her son because he was not at home.” Unrefuted evidence of record establishes that appellant was visiting the premises. When appellant first arrived at her son’s house, he was at home; subsequently he left the premises to go to school and just happened to be absent when the police arrived. However, even during his absence his co-resident, Raymond Mendel, was present in the two-bedroom premises. As far as the police were concerned, appellant and the teenage girls could have been lawfully visiting the co-tenant. Moreover, the police testified they did not know who appellant was, and during their candid testimony they did not speculate as to the reason for her presence on the premises. Thus, the majority’s conclusion that appellant was not a visitor is not supported by the operative facts. The majority also attempts to draw an analogy between this search and the search of a purse of a person entering a courthouse or airport departure area. This argument is totally devoid of merit in my opinion. First, there exists certain unique security problems in courthouses and airports that warrant extraordinary precautions in the interest of public safety. See McSweeney v. State, 183 Ga. App. 1, 2 (358 SE2d 465). The search here was conducted in a private dwelling and pursuant to general exploratory language in a search warrant. Secondly, people entering airport departure areas and courthouses may avoid purse searches merely by electing not to use the facilities offered at that time. In this case, appellant was given no equal right of election, and gave no consent to the search of her purse.

This case should be reversed. See generally Ybarra v. Illinois, supra; Wyatt v. State, supra; Bundy v. State, 168 Ga. App. 90, 91 (308 SE2d 213); Childers v. State, 158 Ga. App. 613, 615 (281 SE2d 349).

I respectfully dissent. I am authorized to state that Judge Sognier, Judge Pope and Judge Benham join in this dissent.

Decided July 15, 1988

Rehearing denied July 29, 1988

Ralph J. Hunstein, for appellant.

Robert E. Wilson, District Attorney, John H. Petrey, Eleni A. Pryles, Assistant District Attorneys, for appellee.


source: Caselaw Access Project

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

license: Public Domain

text:
    76336.
    VARRICCHIO v. JOHNSON.
    (372 SE2d 445)
   Birdsong, Chief Judge.

The plaintiff Varricchio appeals the trial court’s dismissal of her lawsuit, for failure to exercise reasonable diligence in perfecting service of the complaint after the statute of limitations had expired.

On February 24, 1986, plaintiff-appellant Varricchio filed her lawsuit in DeKalb County based on an auto collision occurring March 2,1984. On February 28, the sheriff, after attempting to serve defendant at his home, notified appellant that the defendant Johnson had moved his residence. On March 24 (by letter dated March 19), appellant directed the DeKalb Sheriff to have the Forsyth Sheriff serve the defendant at his law office in Cumming, where appellant concedes defendant had maintained the same address since 1974. The sheriff did so on March 28, but served a secretary who was not authorized as agent to accept service.

On April 1, appellant filed a motion to transfer the suit to Forsyth County, she having ascertained that defendant had moved his residence there. On April 14, defendant Johnson, through counsel, filed an answer challenging service and jurisdiction, a motion to dismiss the DeKalb suit for lack of personal jurisdiction, and an “Objection to Transfer of Venue,” asserting that since defendant had not been served there was no “pending suit” and thus there was nothing to transfer under Uniform Superior Court Rule 19.1 (A). The defendant also sent appellant notice of a hearing on these various motions, scheduled May 27, 1986; but this notice of hearing was signed and issued by defendant’s counsel and not by the court, which may be why the DeKalb trial court on May 13 ex parte ordered the case transferred to Forsyth County. Then on May 23, appellant notified the Forsyth Sheriff to serve defendant at his office, which service was finally perfected June 11, 1986.

On June 30, defendant answered in the Forsyth court and asked for dismissal based on improper service. The Forsyth trial court ruled the plaintiff-appellant had not exercised reasonable diligence in serving the defendant after suit was filed so as to toll the running of the statute of limitations.

The trial court also ruled, re defendant’s objection to the transfer, that under Larsen v. Larsen, 224 Ga. 112, 113 (160 SE2d 383), there was no “pending action” until service was perfected on the defendant, and therefore under Uniform Superior Court Rule 19.1 (A), the case could not be transferred unless defendant had been served; but, said the trial court, nullifying the DeKalb transfer would be futile action, since the defendant had finally been served June 11, 1986, and the case would simply be transferred again. Held:

This case is not like other service of process cases. The statute of limitations on the plaintiff’s cause of action expired six days after plaintiff filed her lawsuit on February 24, 1986. Only if the plaintiff exercised reasonable diligence to perfect service, could the eventual service of process toll the running of the statute of limitations. Ingram v. Grose, 180 Ga. App. 647 (350 SE2d 289); Brown v. Bailey, 180 Ga. App. 555, 557 (349 SE2d 792); Bowman v. U. S. Life Ins. Co., 167 Ga. App. 673 (307 SE2d 134).

The defendant had, as plaintiff concedes, maintained the same law office at the same address in the town of Cumming since 1974. This fact was simple to confirm. Defendant could very easily be found. He was not a transient, nor was he of habitually unstable, mysterious, or secreted residence. Yet, the unmitigated fact is that plaintiff sat and did nothing from February 28, when the sheriff informed her defendant had moved his residence, until March 24, when (by letter dated March 19) she directed the sheriff to serve defendant at his law office. This delay of nearly a month, including a failure to attempt any service for three weeks after the statute of limitations had expired, is completely unexplained and unexcused.

The special duty the plaintiff bears to exercise reasonable diligence in serving a complaint for which the statute of limitations has expired, is too well established to dissertate. See Ingram, supra; Brown, supra, and Bowman, supra. The thing that can never be lost in sight is that the plaintiff’s cause of action was dead. It could not be revived unless the plaintiff used due diligence to perfect service, which diligence must be examined in light of the particular fact that the cause of action had expired.

The fact that for the more than three weeks, from February 28 to March 24 (by letter dated March 19), the plaintiff did absolutely nothing towards perfecting service, must not be obscured by any confusion and uncertainty that arose later out of the fact that when she still failed to perfect service, the defendant filed a motion to dismiss for lack of service, and a motion to transfer venue because he moved his residence. Should his right to do these things, because of her continuing inexactness, excuse her of the three weeks she earlier spent doing nothing after the statute of limitations had expired, when the defendant was easily available for service at his law office where he had been since 1974?

This unexplained inactivity of three weeks was evidently what the trial court considered in finding the plaintiff lacking in such due diligence as to revive the dead cause of action. Three weeks may not be an unjustified delay if one is looking for an unstable or transient defendant with no place of business; but such situations bear no resemblance, in fact or principle, to this case. This is why a generalized comparison of “length of time” in various cases is an unreliable test; and this is why the matter is one of the trial court’s discretion in each case.

Even though we might sometime take a different view, the trial court’s exercise of this discretion in these matters will not be overturned on appeal, unless it has been actually abused and cannot be supported as a matter of law. Forsyth v. Brazil, 169 Ga. App. 438, 439 (313 SE2d 138). Even if we thought three weeks of unexcused inactivity in perfecting service was sufficiently diligent to revive a dead cause of action, we would be hard put to say the trial court in this case abused its discretion in finding otherwise. In fact, however, we concur with his unclouded vision of the plaintiff’s lassitude, and find that the trial court did not abuse its discretion in leaving unrevived this dead suit.

Judgment affirmed.

Deen, P. J., Pope and Beasley, JJ., concur. Carley, J., concurs in judgment only. McMurray, P. J., Banke, P. J., Sognier and Benham, JJ., dissent.

Banke, Presiding Judge,

dissenting.

The original attempt to serve the defendant took place in DeKalb County on February 28, 1986, prior to the expiration of the statute of limitation. It was evidently at this time that the plaintiff first became aware that the defendant had moved his residence. Less than three weeks later, on March 19, 1986, the plaintiff wrote a letter to the DeKalb clerk requesting that service be attempted on the defendant in Forsyth County, where he maintained a law office. On March 28, 1986, the Forsyth County Sheriff sought to effect service at that location by leaving a copy of the complaint and summons with the defendant’s secretary. However, the secretary evidently was not authorized to accept service on the defendant’s behalf, with the result that this did not constitute valid personal service upon him pursuant to OCGA § 9-11-4 (d) (7). Nevertheless, the defendant obviously became aware at that time of the pendency of the action, for on April 14, 1986, he filed an answer to the complaint, asserting lack of personal jurisdiction and insufficiency of service of process as defenses.

On April 11, 1986, the plaintiff, having now learned that the defendant’s new residence was, like his law office, located in Forsyth County, filed a motion in the DeKalb County Superior Court seeking to transfer the case to Forsyth County. That motion remained pending for approximately six weeks before the DeKalb court granted it. Ten days following the grant of the motion, before the actual transfer of the case had taken place, the plaintiff wrote a letter to the Forsyth clerk requesting that another attempt be made to serve the defendant at his law office. Personal service was ultimately accomplished at that location approximately two and a half weeks later, on June 11, 1986.

Decided July 15, 1988

Rehearing denied July 29, 1988

D. Lynn Russell, for appellant.

Weymon H. Forrester, James E. Brim III, for appellee.

I do not understand how these facts evidence a lack of diligence on the part of the plaintiff in attempting to perfect service. Although it is true that the plaintiff did not make any further attempt to have the defendant served in Forsyth County during the six-week period in which her transfer motion was pending, this undoubtedly was because she was awaiting a ruling on that motion by the DeKalb Court. Her conduct in this regard certainly resulted in no prejudice to the defendant, who filed an answer, a motion to dismiss, and an objection to the transfer motion during this period.

The only other period of delay with which the plaintiff can reasonably be charged is the three weeks which transpired between the original attempt at service at the defendant’s former residence in DeKalb County and the plaintiff’s first request for service in Forsyth County. I do not believe such a three-week delay can reasonably be considered of sufficient magnitude to warrant the dismissal of the suit based on lack of diligence in attempting to perfect service. Consequently, I would reverse the judgment of the trial court.

I am authorized to state that Presiding Judge McMurray, Judge Sognier and Judge Benham join in this dissent.


author: Carley, Judge. Deen, Presiding Judge,

text:
    77567.
    STUCKEY et al. v. RICHARDSON et al.
    (372 SE2d 458)
   Carley, Judge.

The instant case concerns the selection of delegates from the State of Georgia to the 1988 National Republican Convention. Appellee-plaintiffs filed a petition for declaratory judgment, seeking a declaration that they were the validly selected delegates to the convention and that the delegates who had been selected by the appellant-defendant State Executive Committee of the Georgia Republican Party (Executive Committee) were not. Appellants answered, denying the material allegations of the petition. Appellants also moved to dismiss, asserting, among other grounds, that the dispute involved the conduct of the internal affairs of the appellant-defendant Georgia Republican Party and, as such, the dispute was not justiciable in the courts of this state.

The trial court denied appellants’ motion to dismiss and, having heard the case sitting without a jury, it entered an order declaring appellees to be the validly selected delegates and the selection of delegates by the appellant Executive Committee to be invalid. Appellants filed a notice of appeal from this order and moved that this court expedite consideration and resolution of the case. We granted appellants’ motion for expedition. “Because of the need to act quickly ... , we are deciding this case in an expedited manner even though this appeal was only recently filed and argued. This court’s term will soon end. We do not normally decide cases during the last fifteen days of a term. OCGA §[§] 15-2-4[, 15-3-2]. However, . . . under our inherent power, this court may establish whatever rules are necessary to determine the cases which come before us. [Cits.] The inherent power to make the rules includes the concomitant power to suspend the rules in an appropriate case such as the one before us.” Shore v. Shore, 253 Ga. 183, 184 (318 SE2d 57) (1984).

1. The motion to dismiss the appeal is denied.

2. Appellants enumerate the trial court’s order as erroneous on the ground that “this dispute concerns the internal workings of a political party, specifically the selection of delegates to its state and national conventions, which is not justiciable by, and is beyond the jurisdiction of, the trial court. ...”

“Delegates [to a National Political Party Convention] perform a task of supreme importance to every citizen of the Nation regardless of their State of residence. The vital business of the Convention is the nomination of the Party’s candidates for the offices of President and Vice President of the United States. To that end, the state political parties are ‘affiliatéd with a national party through acceptance of the national call to send state delegates to the national convention.’ [Cit.] The States themselves have no constitutionally mandated role in the great task of the selection of Presidential and Vice-Presidential candidates. If the qualifications and eligibility of delegates to National Political Party Conventions were left to state law ‘each of the fifty states could establish the qualifications of its delegates to the various party conventions without regard to party policy, an obviously intolerable result.’ [Cit.] Such a regime could seriously undercut or indeed destroy the effectiveness of the National Party Convention as a concerted enterprise engaged in the vital process of choosing Presidential and Vice-Presidential candidates — a process which usually involves coalitions cutting across state lines. The Convention serves the pervasive national interest in the selection of candidates for national office, and this national interest is greater than any interest of an individual State.” Cousins v. Wigoda, 419 U. S. 477, 489-490 (II) (95 SC 541, 42 LE2d 595) (1975). “It has been understood since our national political parties first came into being as voluntary associations of individuals that the convention itself is the proper forum for determining intraparty disputes as to which delegates shall be seated.” O’Brien v. Brown, 409 U. S. 1, 4 (92 SC 2718, 34 LE2d 1) (1972). “[I]t is not for the courts to mediate the merits of this dispute. ... [A] State, or a court, may not constitutionally substitute its own judgment for that of the Party. A political party’s choice among the various ways of determining the makeup of a State’s delegation to the party’s national convention is protected by the Constitution. And as is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational.” Democratic Party of U. S. v. Wisconsin, 450 U. S. 107, 123-124 (III) (101 SC 1010, 67 LE2d 82) (1981). It follows that the instant dispute concerning the internal affairs of the Georgia Republican Party is a non-justiciable controversy which must be resolved by the 1988 National Republican Convention rather than by the courts of this state. Accordingly, the trial court erred in failing to grant appellants’ motion to dismiss appellees’ petition for declaratory judgment.

3. Appellants’ remaining enumerations of error are moot by virtue of our holding in Division 2.

4. “We extend the [April] term relative to this case to enable the appellees to file a motion for [rehearing]. OCGA §[§] 15-2-4[, 15-3-2].” Haygood v. City of Doraville, 256 Ga. 566, 567 (350 SE2d 766) (1986).

Judgment reversed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Sognier, Pope, and Beasley, JJ., concur. Deen, P. J., and Ben-ham, J., concur in part and dissent in part.

Deen, Presiding Judge,

concurring in part and dissenting in part.

While concurring with Divisions 1 and 4 of the majority opinion, I must dissent from Divisions 2 and 3.

In this case, although the issue is in dispute, the appellees have compiled an impressive factual record containing thousands of pages of documents to support their contention that the upper-ranking leaders of the state Republican party, who supported a particular candidate, embarked upon a scheme or enterprise to systematically challenge the credentials of state convention delegations only from the counties in which a certain opposing candidate had prevailed in the primary election. That scheme, it was argued, was audacious in that the same alleged violations of elections rules occurred in many counties that voted for the candidate favored by the appellants, yet systematically no challenges were made to the returns from those counties.

The appellees obtained two injunctions against the appellants, the gist of which was that the appellants could not exclude the appellees from participating in the state convention. These injunctions were in effect approved by the Georgia Supreme Court by virtue of its denial of the appellants’ petitions for discretionary review of the grant of the injunctions. It is no more than conventional wisdom that the appellants, the appellees, the lower courts, and this court are all bound by the Supreme Court’s action. The action of the appellants in adjourning and walking out of the state convention, which resulted in the “rump” convention of the appellees, served the purpose of ignoring or disobeying the injunctive relief won by the appellees. Cancel-ling the party altogether excluded the appellees from participating in the convention no less than did not inviting them in the first place. The spirit, if not the letter, of the injunctive relief was broken by the appellants.

Much of what the appellants have argued, about the impropriety of the courts resolving disputes over the internal operation or rules of a political party, is cogent. However, the Georgia Supreme Court has placed its imprimatur on judicial intervention in this political squabble, and this court cannot ignore that.

The majority opinion’s argument that the courts cannot get involved in the resolution of political disputes is really an argument over a matter of degree, since whichever way this court rules, it, along with two separate trial courts and the Georgia Supreme Court, will have been involved in some manner in this drawn-out political dispute. It is acknowledged that courts are loath to inquire and trespass into the merits and beliefs of sensitive and perilous political and theological issues. However, “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes . . . Decision in this context, as in others, is very much a ‘matter of degree . . .’” Storer v. Brown, 415 U. S. 724, 730 (94 SC 1274, 39 LE2d 714) (1974). (Emphasis supplied.)

To be sure, judicial intervention into political issues should occur only where a compelling state interest is at stake. Republican Party of Conn. v. Tashjian, 770 F2d 265, 281 (2d Cir. 1985), aff'd 479 U. S. 208 (107 SC 544) (1986). The instant case, however, involves such an interest, viz., the alleged nullification of a primary election and the effective disenfranchisement of a significant block of voters, occurring at a time when political parties urge adherence to a strict code of ethics. The appellants’ assurance that no disenfranchisement occurred, because the alleged scheme to exclude the appellees was never completed, is not persuasive, as it appears that only by the limited judicial intervention below did the plan go awry. Admittedly, the appellants may accomplish their goal before the national party committee, but that does not relieve the judiciary of its power and duty to require fair play and honesty in the state political party process, a requirement that is necessary to preserve in general the integrity of the political process itself and specifically the right of a meaningful vote and political association for all.

Decided July 29, 1988

Rehearing denied August 3, 1988

Kent E. Mast, H. Quigg Fletcher, L. Catharine Cox, Oscar N. Persons, Frank B. Strickland, for appellants.

As it was ardently argued by the appellees, the various decisions of the United States Supreme Court, generally holding that the judiciary has no business with the selection of delegates of a national political party, relied on by the appellants, are under the facts here inapplicable. The appellees initially turned to the courts not for approval of any delegate selection, but rather only for the right as party members to be allowed to participate and be heard at the state convention and to be permitted to appeal any decisions not to the courts but to the whole convention. The appellees played by the rules at every turn, and the subsequent amendment of the complaint and ruling by the trial court upholding the appellees’ delegate selection was a necessary response to the appellants’ apparent intention to disregard or thwart the injunctive relief earlier won by the appellees and tacitly approved by the Georgia Supreme Court in its denial of a discretionary appeal. The appellants have strongly protested that judicial intervention infringes upon their constitutional right of free political association. It must be acknowledged that the appellees also have equal civil rights of political association in the selection process.

It is emphasized by appellees that the alleged fraudulent enterprise in this case as argued was perpetrated not merely upon the appellees, but upon the voters of this state. The righteous indignation communicated by the appellees is understandable, and “[i]t would be monstrous to suppose that the arm of the Judiciary of Georgia was too short, or too weak, to reach and relieve . . .” the compelling state interest in this case. Rogers v. Atkinson, 1 Ga. 12, 25 (1846).

On appeal, the evidence must be construed in a light most favorable to the appellees, and since there is evidence to support the findings and action of the trial court, the trial court should be affirmed. Accordingly, I must respectfully dissent.

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

Celia Larsen, Wm. Washington Larsen, Jr., Garland T. Byrd, Charles W. Byrd, for appellees.


author: Sognier, Judge. Pope, Judge,

text:
    76273.
    GLISSON v. THE STATE.
    (372 SE2d 462)
   Sognier, Judge.

Appellant was convicted of incest and cruelty to a child, and he appeals.

1. Appellant contends that the offense of incest cannot be committed between a “stepgrandfather” and his “stepgranddaughter,” and therefore it was error to deny his motion for a directed verdict of acquittal as to that offense. We agree.

“The prohibition against intermarriage or carnal knowledge between persons related by consanguinity, unless expressly extended by statute, applies only to those related within the Levitical degrees [Cook v. State, 11 Ga. 53], or if certain relations are specified by the statute, only to such relations. The question, however, is generally regulated by statute, a common provision being that in order to constitute the crime the parties must be related to each other in some degree within which marriage is prohibited.” 42 CJS, Incest, § 3a.

Consanguinity is defined as: “Kinship; blood relationship; the connection or relation of persons descended from the same stock or common ancestor. Consanguinity is distinguished from ‘affinity,’ which is the connection existing in consequence of a marriage, between each of the married persons and the kindred of the other.” Black’s Law Dictionary, Special Deluxe Fifth Edition, p. 275. “There is a clear and just moral difference between the marriage or sexual intercourse of persons related by consanguinity [blood] and that of persons related only by affinity, and hence a statutory prohibition expressly relating to degrees of consanguinity will not by implication extend to degrees of affinity, . . . Affinity within the meaning of statutes against incest does not arise between one of the parties to a marriage and a person related only by affinity to the other party.” CJS, supra, § 3b.

OCGA § 16-6-22 (a) provides: “A person commits the offense of incest when he engages in sexual intercourse with a person to whom he knows he is related either by blood or by marriage as follows: (1) Father and daughter or stepdaughter; (2) Mother and son or stepson; (3) Brother and sister of the whole blood or of the half blood; (4) Grandparent and grandchild; (5) Aunt and nephew; or (6) Uncle and niece.” (Emphasis supplied.) Thus, the Georgia statute, while prohibiting sexual relations between certain persons related only by affinity, does not include the stepgrandfather-stepgranddaughter relationship in its definition of incest. It has always been the law that criminal statutes must be strictly construed against the State, Mitchell v. State, 239 Ga. 3 (1) (235 SE2d 509) (1977), and since the statute does not include a prohibition against sexual intercourse between a “step-grandfather” and “stepgranddaughter,” it is excluded under the maxim expressio unius est exclusio alterius.

“The fact that the . . . sexual act[s] here involved [are] fully as loathsome and disgusting as the acts proscribed by the Code does not justify us in reading into the statutory prohibition something which the General Assembly either intentionally or inadvertently omitted.” Riley v. Garrett, 219 Ga. 345, 347-348 (1) (133 SE2d 367) (1963). Since the relationship between appellant and the alleged victim is not one which is expressly enumerated in the statute, any sexual relationship between them would not be incestuous. Accordingly, appellant’s conviction of incest must be reversed.

2. Appellant alleges it was error to allow witnesses to testify as to what the alleged victim told them. In this regard the alleged victim, who was sixteen at the time of trial, invoked her privilege not to testify under the provisions of OCGA § 24-9-27 (a), on the ground that her testimony would tend to bring disgrace or public contempt upon her family. She invoked this privilege three times, and refused to testify despite the court’s ruling that she must testify. The trial court then allowed a school counselor, a former GBI agent, and the victim’s mother and stepfather to testify, over a continuing objection, as to what the victim told them about the offenses charged. The State offered such testimony on the ground that it was to explain conduct, and the court admitted it on that ground. Thus, appellant’s conviction is based entirely on hearsay testimony. OCGA § 24-3-16 is not applicable here, because the alleged victim was not under the age of fourteen at the time she made her statements.

In Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982), two detectives had been allowed to testify at trial, on the ground that it was to explain conduct and motive, that a woman, since deceased, had told them she had been abducted and raped repeatedly by two men, one of whom was the defendant. The Supreme Court held, however, that such testimony was offered to prove that the victim had been raped and that the defendant had committed the rape. The court also held that such testimony was hearsay and inadmissible under Code Ann. § 38-302 (now OCGA § 24-3-2) to explain the detectives’ conduct or motives, since their conduct and motives were not matters concerning which the truth must be found. Here, as in Momon, it is clear that the purpose of the admitted testimony was not to explain the witnesses’ conduct, but to prove the truth of what the victim had told them, i.e., that appellant had committed the offenses charged. Thus, such testimony was inadmissible hearsay, and it was error to allow such testimony. Id. at 867. See also Parker v. State, 162 Ga. App. 271, 274-275 (290 SE2d 518) (1982). “If the hearsay rule is to remain a part of our law, then OCGA § 24-3-2 . . . must be contained within its proper limit.” Teague v. State, 252 Ga. 534, 536 (1) (314 SE2d 910) (1984).

We do not find the “necessity” exception to the hearsay rule, set forth in OCGA § 24-3-1 (b), applicable under the facts of this case. That exception applies only when the witness is unavailable, usually because of death or in cases where the witness may not be compelled to testify, as in the case of a wife who cannot be compelled to testify against her husband. Our Supreme Court has established that “a witness cannot refuse to testify relative to material matters concerning a crime committed by a member of [her] family on the basis that [her] answer would bring disgrace, infamy or public contempt upon [her] or [her] family.” Thomas v. State, 245 Ga. 688, 691 (4) (266 SE2d 499) (1980). See also Brown v. State, 242 Ga. 536, 538 (3) (250 SE2d 438) (1978). /Thus, the alleged victim in this case could not invoke privilege on this ground and could have been compelled to testify. Since her testimony was compellable, appellant has been deprived of a trial in which the victim’s testimony would be immediately, rather than intermediately, before the jury for its evaluation, and she would be subject to cross-examination. The result of the court’s failure to compel the witness to testify was that it allowed inadmissible evidence to be presented to the jury, and admissible evidence was shielded from its consideration.

Two wrongs do not make a right, and the failure of the trial judge to compel the alleged victim’s testimony should not sanction the consequent admission of hearsay testimony. That is reversible error for two reasons. First, the victim’s testimony would be direct evidence that either the offenses charged occurred or they did not occur. Second, appellant’s accuser would face him and be subject to cross-examination, thereby giving appellant his constitutional right to confront the witness against him. Higgs v. State, 256 Ga. 606 (351 SE2d 448) (1987), is not applicable here, for in Higgs the failure of the wife of the defendant to testify was based on the exercise of her privilege not to testify against her husband, rather than on any privilege pursuant to OCGA § 24-9-27 (a) and thus, she could not be compelled to testify.

We are unaware of any other exception to the hearsay rule which would make the testimony of the witnesses admissible. The victim’s statements were not part of the res gestae, they did not constitute fresh complaint, nor were they spontaneous exclamations made shortly after the offenses charged were allegedly committed, since the acts of incest allegedly occurred over a period slightly in excess of one year. On the contrary, the initial statement to the school counselor was made after a student informed the counselor she should talk to the victim about her relationship with her grandfather. All statements by the victim were the result of questioning by the various witnesses, and were not made voluntarily by the alleged victim. Even assuming, for the sake of argument only, that the testimony of the witnesses was admissible, hearsay testimony ordinarily is wholly without probative value, and even when introduced without objection, such testimony alone cannot establish a fact in issue. Jones v. State, 50 Ga. App. 97 (1) (176 SE 896) (1934); Collins v. State, 146 Ga. App. 857, 860 (1) (247 SE2d 602) (1978). Hence, it was error to allow the hearsay testimony of the witnesses under the facts presented here, and the conviction is reversed.

3. In view of our decision in Divisions 1 and 2, it is unnecessary to address appellant’s remaining enumerations of error.

Judgment reversed.

Birdsong, C. J., Banke, P. J., Carley and Beasley, JJ., concur. Deen, P. J., McMurray, P. J., Pope and Ben-ham, JJ., dissent.

Pope, Judge,

dissenting.

1. I dissent from the holding that Georgia’s incest statute does not apply to the relationship of stepgrandparent and stepgrandchild. OCGA § 16-6-22 provides, in pertinent part: “A person commits the offense of incest when he engages in sexual intercourse with a person to whom he knows he is related either by blood or by marriage as follows: . . . grandparent and grandchild . . . .” (Emphasis supplied.) By expressly providing for relation by marriage, the Georgia incest statute applies to relation by affinity (marriage) as well as by consanguinity (blood). By definition, relation by marriage applies to relations “in-law” and “step” relations. Thus, each of the relationships set forth in OCGA § 16-6-22 (a) includes relationships “in-law” and “step” relationships, including grandparent and grandchild, as set forth in subsection (a) (4). The evidence in this case shows defendant was the father of the victim’s stepfather, with whom she lived. Defendant was, by marriage, the victim’s grandfather and the relationship between defendant and victim is covered by the Georgia incest statute.

The opinion of the majority concerning the requirement of Levitical degrees of relationship is inapplicable. In 1852, when Cook v. State, 11 Ga. 53 (56 A.D. 410) (1852) was decided, Georgia’s penal code did require the parties to be related by Levitical degrees. Laws 1833, Cobb’s 1851 Digest, p. 814. However, in the 130 years since Cook, the incest statute has been revised. It now sets forth six specific relationships for which sexual intercourse is prohibited, whether the relationship is “by blood or by marriage.” OCGA § 16-6-22 (a). The majority’s scholarly discussion concerning the distinction between relation by consanguinity or affinity is also not instructive, for Georgia’s incest statute includes relationships by marriage. Our statute applies to relationships of both affinity and consanguinity.

The only other case of which we are aware in which a court has considered whether the relationship between stepgrandparent and stepgrandchild is subject to an incest statute was decided by the Court of Appeals of the State of Washington. In State of Wash. v. Handyside, 42 Wash. App. 412 (711 P2d 379) (1985) the Washington incest statute was held not to apply to the relationship. However, the Washington incest statute, Wash. Rev. Code Ann. § 9A.64.020, varies significantly from the Georgia incest statute. By Washington statute, sexual contact is forbidden with those related as a “descendant,” a term defined to include stepchildren but not stepgrandchildren. Moreover, the Washington statute does not apply to relationships by marriage. Because of the statutory differences between the two states, the holding of the Washington court is not applicable to the facts of the case at hand.

I find no merit in defendant’s argument that the relationship of stepgrandchildren is implicitly left out of the Georgia incest statute because the relationship between father and stepdaughter and mother and stepson was expressly included. We cannot ignore the express inclusion of any relationship by marriage, which applies to each of the relationships enumerated in the statute. See subsections (a) (1) through (6) of OCGA § 16-6-22. Thus, I would affirm the conviction of incest.

2. I agree with defendant that the testimony concerning the victim’s statements to others was not admissible to explain the conduct of those investigating the accusations. See Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982). However, this case is not governed by Momon. Instead, it is squarely ruled by Higgs v. State, 256 Ga. 606 (351 SE2d 448) (1987), which recognizes an exception to the hearsay rule for the statement of a necessary witness (in Higgs, the eyewitness; in the case now before us, the victim) when the witness invokes a privilege not to testify and the circumstances surrounding the witness’ statement guarantee its trustworthiness.

The necessity of the testimony at issue in this appeal is obvious from the refusal of the victim to testify, despite the court’s repeated instruction to do so. The specific circumstances involved in this case guarantee the trustworthiness of the statements made by the victim to others. The victim related identical or similar statements to four adults: her school counselor, her stepfather, her mother and a GBI agent. Moreover, the record reflects she testified before the grand jury which indicted defendant. Certain aspects of her statements were corroborated by physical evidence or the direct testimony of other witnesses (e.g., her statement that the sexual activity occurred after school and on weekends while her parents were away from home was corroborated by the testimony of her siblings and a neighbor who testified defendant regularly visited the victim’s house at these times and locked the other children out of the house or out of the victim’s bedroom; her statement that defendant blocked the door to her bedroom with a stick was corroborated by the introduction of a stick matching her description which was found in her bedroom). As in Higgs, the victim did not testify contrary to the statements made to the four adults nor was any evidence presented that she ever disavowed her statements or claimed they were inaccurate or untrue. The victim appeared before the trial jury and, in response to questioning, read a statement invoking her privilege not to testify. Therefore, the jury was in a position to evaluate the witness’ trustworthiness, sincerity or motive and to form a belief as to whether the witness could be trusted to tell the truth to others in private even though she was unwilling to testify in public.

The victims of sexual offenses against children are young, vulnerable and often dependent upon the accused. The very nature of the relationship between the victim and the accused creates a dilemma for the child subpoenaed to testify. The victim, often the only witness able to establish the evidence necessary for conviction, may be intimidated into silence out of fear of reprisal. The “personal or family disgrace” privilege does not extend to testimony material to the issues of the case and the witness may be required to testify (See Division 2 of the majority opinion, supra). Nevertheless, due to the youth and vulnerability of the witness the trial judge, as here, may be reluctant to hold the witness in contempt. Conviction for these reprehensible offenses should not be thwarted by the accused’s emotional and psychological control over the victim. The offense in these cases, as in any other crime, is not just against the victim but against the laws, good order, peace and dignity of the state. When reliable evidence is available to sustain a conviction, it must not be excluded. Justice is blind, but not dumb.

I do not advocate that the necessity exception to the hearsay rule be applied routinely in any child molestation or incest case where the victim is unavailable to testify. Neither do I believe that the courts should rigidly refuse to apply an established and recognized exception to hearsay for reliable statements made by the victim to others in instances where necessity is coupled with “a circumstantial guaranty of the trustworthiness of the offered evidence.” (Cit. and punctuation omitted.) Higgs v. State, supra at 607. By statute, the statement made by a child under the age of fourteen to another concerning sexual contact or physical abuse is admissible so long as the child is available to testify and “the court finds that the circumstances of the statement provide sufficient indicia of reliability.” OCGA § 24-3-16. The apparent purpose of this statute is to protect a young child from the trauma of appearing in court to testify to matters which would be understandably disturbing to the child. However, the admissibility of such evidence is based on its reliability. Is the statement of a child one day over the age of fourteen any less reliable or admissible into evidence? Certainly not. So long as the elements of necessity and trustworthiness are present, an exception to the hearsay rule is established.

The admission of the reliable statements of the victim to others as an exception to hearsay would not, in my opinion, violate the right of the accused to confront the witness, as set forth by the United States Supreme Court in Coy v. Iowa, (Case No. 86-6757, decided June 29,1988). The Confrontation Clause of the Sixth Amendment to the United States Constitution confers the “ ‘right to meet face to face all those who appear and give evidence at trial. California v. Green, 99 U. S. [149] at 175.” Id., slip op. at 8. By citing Dutton v. Evans, 400 U. S. 74 (91 SC 210, 27 LE2d 213) (1970), the court in Coy expressly recognized the Confrontation Clause does not exclude out-of-court statements which are properly admitted as an exception to hearsay.

Finally, the ruling in Parker v. State, 162 Ga. App. 271 (5) (290 SE2d 578), relied upon in the majority opinion, is distinguishable and inapplicable. In that case, the victim, herself, testified. Therefore, the testimony of the victim’s mother and a social worker concerning what the victim had told them about the incident was held to be inadmissible because it was admitted only to fortify or bolster the testimony of the victim. The court also rejected the argument that the victim’s statements were admissible under the res gestae exception to hearsay. The court in Parker did not address the necessity exception to hearsay because, unlike the case now before us, there was no necessity for admitting the statements since the victim, herself, did testify.

In rejecting the necessity exception, the majority relies largely on the fact that the victim in this case was not unavailable to testify because she could have been compelled to testify. While such is the ruling now announced in this opinion (see Division 2 of the majority opinion, supra), the majority ignores the fact that at the time of trial, the trial judge was constrained in his dealings with the recalcitrant witness by this court’s opinion in Wynne v. State, 139 Ga. App. 355 (3) (288 SE2d 378) (1976), stating that a judge had no authority to hold a witness in contempt for invoking the “personal or family disgrace” privilege. We cannot blame the trial judge for following this court’s earlier opinion and conducting the trial as if the victim were unavailable. Under the Wynne case, the judge did exactly what he had to do.

3. The testimony of the four adults concerning statements made to them by the victim was properly admissible as an exception to hearsay. As such, the testimony would have whatever probative value the jury would care to attach to it, and could support a verdict. See, e.g., Higgs v. State, 256 Ga. 606, supra. The testimony concerning the victim’s statements, considered with the circumstantial evidence that defendant locked himself and the victim in her bedroom, the medical evidence that the victim’s hymen had been ruptured, and the money, clothes, trips and gifts that the appellant provided the victim would authorize a rational trier of fact to find the appellant guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided July 29, 1988

Rehearing denied August 11, 1988

W. Paschal Bignault, John R. Calhoun, Malcolm MacKenzie III, Kenneth D. Kondritzer, for appellant.

J. Lane Johnston, District Attorney, for appellee.

Defendant argues the state failed to produce any evidence to support the conviction for cruelty to children. OCGA § 16-5-70 (b) provides: “Any person commits the offense of cruelty to children when he maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” Evidence of the victim’s injury was provided by the testimony of her school counselor that the victim was “deeply concerned” about the problem and that defendant had told her she would be punished for telling about it. Malice and intent as elements of the offense of cruelty to children “may be found from all the circumstances of a case . . . .” McGahee v. State, 170 Ga. App. 227, 228 (316 SE2d 832) (1984). The evidence presented established the necessary elements to support the conviction for child cruelty, even if the majority is correct in its conclusion that the relationship between stepgrandparent and stepgranddaughter is not included in the incest statute.

I am authorized to state that Presiding Judge Deen, Presiding Judge McMurray and Judge Benham join in this dissent.


author: Sognier, Judge. Deen, Presiding Judge,

text:
    76283, 76418.
    VOGTLE v. COLEMAN (two cases).
    (372 SE2d 642)
   Sognier, Judge.

Alvin Vogtle appeals from the judgment on the jury verdict awarding Woodrow Coleman $35,000 for abusive litigation in Case No. 76283. It is consolidated in this opinion with Vogtle’s appeal in Case No. 76418 from the trial court’s award in favor of Coleman for $33,254.60 in attorney fees pursuant to OCGA § 9-15-14.

In June 1983, Anne Bloomer and others (“Bloomer”) filed suit against appellant alleging he had constructed and maintained a fence across a public road so as to deny them access to Stephens Cemetery, where their ancestors were interred, and that appellant had allowed his horses to trespass into the cemetery, causing damage to the gravesites. Appellant’s property surrounded the cemetery except for the north side, and the alleged public road giving access to the cemetery was exclusively on appellant’s property. Appellant made an oral motion in November 1983 to add appellee to the suit as a party defendant, the basis for which, stated in appellant’s written motion filed in December 1983, was appellant’s assertion that appellee owned property contiguous both to appellant’s property and the cemetery (on the northern border). The trial court entered an order that appellee be added as a party defendant and directed Bloomer to proceed with process and joinder of appellee, which was done. Appellee answered in January 1984 denying his property was contiguous with the cemetery. It was uncontroverted that appellee’s property was contiguous only with appellant’s property and that the northern border of the cemetery was separated from appellee’s property by an old logging road.

After numerous delays, pre-trial orders were filed and the case was proceeding to trial in June 1986 when appellant moved to dismiss Bloomer’s claim on the basis that Bloomer had failed to follow the procedure for private condemnation required by OCGA § 44-9-40 et seq. Appellee filed a cross-claim on July 7, 1986, alleging slander of title and malicious abuse of process based on appellant’s acts of moving to add appellee to Bloomer’s lawsuit with full knowledge that appellee never had any involvement with the public’s use of Stephens Cemetery and attempting by means of this motion to place the burden on appellee of providing the public with its lawful right of access to Stephens Cemetery. Four months later, appellee amended the cross-claim, deleting the malicious abuse of process claim in its entirety and substituting in its place a claim for abusive litigation. Appellee’s second amendment to the cross-claim, asserting more explicit grounds for an abusive litigation claim, deleting the slander of title claim and adding a claim for attorney fees pursuant to OCGA § 9-15-14, was filed two days after the trial court’s July 22, 1987, order reflecting that a settlement had been reached between Bloomer and appellant and that Bloomer was dismissing with prejudice the claims against both appellant and appellee. Appellant’s motion for summary judgment or judgment on the pleadings as to appellee’s cross-claim, although filed prior to the settlement, was continued by agreement of the parties and the ruling on the motion, denying it, was not filed until August 1987. Upon trial of the cross-claim appellant offered no evidence and the trial court directed a verdict in favor of appellee as to liability, the jury thereafter returning a verdict finding the amount of damages. Subsequent to the entry of judgment on the abusive litigation claim, the trial court awarded appellee attorney fees under OCGA § 9-15-14.

1. Appellant contends the trial court erred by denying his motions for summary judgment and a directed verdict on the basis that there has been no termination of the underlying proceeding in appellee’s favor, citing Rothstein v. L. F. Still & Co., 181 Ga. App. 113, 115 (2) (c) (351 SE2d 513) (1986). This argument is based on appellant’s mischaracterization of his 1983 motion as the underlying proceeding to appellee’s claim. The facts of the case clearly reveal that the Bloomer suit was the underlying proceeding since had Bloomer pursued the original suit and obtained judgment against appellee (perhaps in the form of a private way across his property), appellant’s motion to add appellee would have thereby been justified, mooting appellee’s cross-claim based on that motion. While appellant made his motion for summary judgment prior to the voluntary settlement of the Bloomer suit and the trial court’s order dismissing appellant and appellee with prejudice, at the time the trial court denied that motion and appellant’s subsequent motion for a directed verdict, the record establishes that the underlying proceeding had terminated in appellee’s favor. Accordingly, Rothstein, supra, is inapt and there is no merit to appellant’s enumeration.

2. Appellant contends the trial court erred by denying his motions for summary judgment and a directed verdict on the basis that appellee’s claim for abusive litigation pursuant to Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), decided June 25, 1986, could not apply retroactively to the motion made by appellant in 1983. However, the record reflects that the underlying proceedings were still viable at the time appellee filed his cross-claim, thereby distinguishing this case from Ostroff v. Coyner, 187 Ga. App. 109 (369 SE2d 298) (1988). While the Supreme Court, in creating a cause of action for abusive litigation in Yost, stated that the claim “is derivative in nature, and hence it must be pleaded as a compulsory counterclaim or compulsory additional claim pursuant to OCGA § 9-11-13 (a), [cit.]” id. at 96 (14), it also clearly contemplated the use of an abusive litigation claim for those abuses occurring during the pendency of the underlying proceeding. So long as the claim meets the requirement that, “the claim be brought as part of the underlying proceedings,” id., the fact that the abusive litigation claim was not made at the time of filing responsive pleadings does not mandate forfeiture of the claim. Appellant has cited to this court no authority barring the filing of appellee’s cross-claim two and one half years after appellee’s answer to Bloomer’s amended complaint. Nor has appellant shown this court how he was harmed by appellee’s amendment of the cross-claim to reflect the change in law effected by Yost and the subsequent trial of the cross-claim on the principles set forth in Yost. This is not an instance in which a suit was tried on pre-Yost principles and then reviewed substantively on post- Yost precepts. Compare Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 795-796 (4) (359 SE2d 920) (1987) (one judge concurring specially; one judge concurring in judgment only), cited in dicta in Ferguson v. City of Doraville, 186 Ga. App. 430, 433 (367 SE2d 551) (1988), but as authority in Augusta Tennis Club v. Leger, 186 Ga. App. 440, 442 (4) (367 SE2d 263) (1988) and Ostroff, supra. Thus, the retroactivity problems reflected in those cases are not in issue here and we find no merit in appellant’s argument.

3. We find no merit in appellant’s contention that because the trial court accepted his 1983 motion to add appellee as a party defendant pursuant to OCGA § 9-11-19, the making of that motion cannot as a matter of law form the basis for a claim of abusive litigation. The trial court, in accepting appellant’s motion in which it was asserted that appellee was a necessary party because he owned property contiguous to the cemetery, was not in a position to weigh the factual accuracy of the motions or the true intention behind appellant’s action in so moving. To the trial court, it could appear only that appellant was pursuing the usual and regular procedure followed in the course of any lawsuit. Further, the allegations in appellee’s cross-claim, supported by evidence adduced at trial, indicate that the abusive litigation claim was not limited to appellant’s motion but included appellant’s attempts to pressure appellee by means of the ongoing litigation into granting Bloomer access to the cemetery across appellee’s land in order for appellant to avoid reopening the pre-existing public road on his own property. We will not allow appellant to shield himself from the consequences of his tortious action in initiating legal process without substantial justification for the purpose of delay and harassment by hiding behind the trial court’s natural assumption that appellant was acting properly and regularly. See generally PDA, Inc. v. Haas Corp., 185 Ga. App. 785 (1) (366 SE2d 169) (1988).

4. Appellant does not contend that the trial court erred by granting appellee’s motion for a directed verdict on the issue of liability at the close of the evidence in the trial of the abusive litigation claim. Appellant does contend, in his seventh enumeration in Case No. 76283, that the trial court erred by “empanelling a jury, and submitting any issues to the jury, and allowing and accepting a jury verdict on a claim for abusive litigation when no other matters in this litigation were determined by a jury.” Claims asserted under Yost are to be adjudicated immediately after the disposition of the underlying action “ ‘by the same factfinder — that is, by the judge or jury of the underlying action.’ [Yost] at 96 (15).” Ferguson, supra at 433. Since we have rejected appellant’s assertion that his 1983 motion was the underlying proceeding, see Division 1, we will address this enumeration in light of the fact that the Bloomer claim was the underlying proceeding. That claim having been settled voluntarily and then dismissed with prejudice, in the technical sense there was no factfinder and, applying appellant’s contention to its logical conclusion, neither a jury nor the judge could be the proper factfinder under Yost for the abusive litigation claim. This result is patently absurd. In Ferguson, supra, this court noted that although claims under Yost are to be adjudicated after disposition of the underlying action, by the same factfinder, “[presumably, this does not mean that where, as here, the underlying action is adjudicated adversely to the plaintiff by the trial judge on motion for summary judgment, the plaintiff thereby loses the right to a trial by jury on the defendant’s Yost claim.” Id. at 433 fn. 3. Similarly, the right to a requested trial by jury should not be lost where the underlying action was settled favorably to the Yost claimant. Therefore, we find no error in the trial court’s empanelling a jury to try the issue of damages for abusive litigation.

5. Appellant contends the trial court erred by permitting appellee to seek and recover damages pursuant to OCGA § 51-12-6 and to permit such recovery on the worldly circumstances of the parties. Appellant argues that damages for “wounded feelings” under OCGA § 51-12-6 are not available under Yost and thus when appellee elected pursuant to Stepperson, Inc. v. Long, 256 Ga. 838, 843 (353 SE2d 461) (1987) to seek recovery in the abusive litigation jury trial only for those damages, appellant was entitled to a directed verdict as a matter of law. We disagree.

In defining the abusive litigation cause of action, Yost provided: “Any party who shall assert a claim, defense, or other position with respect to which there exists such a complete absence of any justiciable issue of law or fact that it reasonably could not be believed that a court would accept the asserted claim, defense, or other position; or any party who shall bring or defend an action, or any part thereof, that lacks substantial justification, or is interposed for delay or harassment; or any party who unnecessarily expands the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures, shall be liable in tort to an opposing party who suffers damage thereby.” (Emphasis supplied.) Id. at 96 (13). Nothing in Yost’s definition of abusive litigation excludes the recovery by an injured party of damages for “wounded feelings” pursuant to OCGA § 51-12-6, and we are not persuaded by appellant’s arguments that we should read such a limitation into the language in Yost. Accordingly, we find no error in the trial court’s admission of evidence regarding the worldly circumstances of the parties since the introduction of such evidence is expressly authorized by OCGA § 51-12-6.

6. We find no error in the trial court’s charge to the jury regarding the trial court’s ruling on the issue of liability. Shore Livestock v. Sanders, 184 Ga. App. 179 (361 SE2d 50) (1987).

7. We decline to read that language in Yost stating that a claim for abusive litigation arises, by necessity, only after the commencement of civil proceedings, as requiring the exclusion of evidence of conduct which preceded the initiation of the action, particularly in view of the statement in Yost that “all the facts and circumstances relating to the ‘claim, defense, or other position’ . . . which shall be relevant and material to the elements of the re-defined tort may be submitted to the trier of fact ...” Id. at 96 (16). Consequently, we find no error in the trial court’s failure to exclude such evidence during the trial on the abusive litigation claim.

8. In Case No. 76418 appellant contends the trial court erred by applying OCGA § 9-15-14 retroactively in awarding appellee attorney fees and expenses of litigation. “The Act which promulgated OCGA § 9-15-14, Ga. L. 1986, pp. 1591, 1593, Sec. 3, provided that the section would apply ‘to actions filed or presented for filing on or after July 1, 1986.’ Id. In addition, it was also applicable to ‘any action pending on July 1, 1986, with respect to any claim, defense, or other position which is first raised in the action on or after July 1, 1986.’ Id.” (Some emphasis in original deleted.) Wilson v. Cotton States &c. Ins. Co., 183 Ga. App. 353, 356 (358 SE2d 874) (1987). See also Yost, supra at 96 (17). Although appellee argues that his claim for attorney fees and expenses of litigation was first raised July 7, 1986, after the effective date of the statute, the language of OCGA § 9-15-14 (a) establishes that “reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted” a meritless claim, defense, or other position. (Emphasis supplied.) It is thus apparent that damages pursuant to OCGA § 9-15-14 can be recovered when the “claim, defense, or other position” for which the statutory penalty is sought was first raised on or after July 1, 1986, regardless of the date of filing the claim in which recovery of the statutory penalty is sought. See Wilson, supra at 356; Ferguson, supra at 432-434 (2) (a) and (b). Since the “position” forming the basis for appellee’s claim for attorney fees and expenses of litigation under OCGA § 9-15-14 first arose in November 1983, OCGA § 9-15-14 was not applicable and thus the trial court erred by awarding appellee $33,254.60 pursuant to that statute. We note the discussion in Ferguson, supra at 433, regarding the recoverability of attorney fees and expenses of litigation in a pre-OCGA § 9-15-14 context.

9. Our holding in Division 8 renders it unnecessary for us to address appellant’s sixth and twelfth enumerations in Case No. 76283 or the remaining enumerations in Case No. 76418.

Decided June 13, 1988

— Rehearings denied July 7, 1988, July 19, 1988 and August 22, 1988

William Lewis Spearman, John J. Dalton, for appellant.

George J. Polatty, Jr., Kirk M. McAlpin, for appellee.

Judgment affirmed in Case No. 76283. Judgment reversed in Case No. 76418.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Benham and Beasley, JJ., concur. Carley and Pope, JJ., concur in Divisions 1, 2, 3, 4, 5, 6, 7 and 9 and in the judgment. Deen, P. J., concurs in part and dissents in part.

Deen, Presiding Judge,

concurring in part and dissenting in part. While otherwise concurring with the majority opinion, I must respectfully dissent to Division 8. This court should affirm the trial court’s findings that the attorney fees of $33,254.60 awarded were specifically for prosecution of the abusive litigation claim and did not contain, and especially rejected, any claim existing prior to July 1, 1986, for defending the main action. This court must presume that the evidence was before the court, which would authorize a finding of the exact amount of attorney fees. See Wilson v. Cotton States Ins. Co., 183 Ga. 353, 356 (358 SE2d 874) (1987); Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 432 (274 SE2d 786) (1980); Carroll v. Johnson, 144 Ga. App. 750, 752 (242 SE2d 296) (1978); Florida Rock Indus. v. Smith, 163 Ga. App. 361, 363 (294 SE2d 553) (1982); Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). See also Patterson, Yost v. Torok: Taking Legal Ethics Seriously,” 4 GSU L. Rev. 23 (1988).


author: Deen, Presiding Judge. Carley, Judge,

text:
    76799.
    RUSSELL v. THE STATE.
    (372 SE2d 445)
   Deen, Presiding Judge.

The events of the instant case dramatically illustrate the stark truth underlying the poetic adage, “. . . Hell [has no] fury like a woman scorned.” Appellant Carol Star Russell, who admittedly believed that “diamonds are a girl’s best friend” if and only if they are bought at Tiffany or Maier & Berkele, was rejected by her almost-fiance, David Roberson, after she had expressed in explicit terms her disdain for the engagement and wedding rings which he had proposed buying for her at Kay Jewelers. Roberson then met and subsequently married another young lady, Tammy, whose taste in jewelry was apparently not so elevated.

Approximately six weeks after her marriage to David, Tammy received, while on the job at a Gainesville, Ga., restaurant, a telephone call from appellant, who stated that she was at Tammy’s residence in bed with David; she also allegedly threatened to kill Tammy. Knowing that her work telephone number was not listed in the telephone directory but was written down in her personal address book, which she kept at home, Tammy called the police and reported the likelihood that an intruder had entered her house. Police officers investigated and then summoned Tammy to the scene. As she approached the house, Tammy spotted Carol’s car and alerted the police, who followed Carol and subsequently took her into custody. When Tammy entered the house she found the premises in considerable disarray: a light fixture had been broken; the bedspread had been cut to pieces; the waterbed was slashed in several places; broken pieces of wedding-crystal floated on the water which had poured forth from the now eminently unseaworthy waterbed; and the bedroom carpet was soaked. She discovered that her address book, her wedding pictures, and the receipts for her wedding and engagement rings were missing. The police officer who apprehended appellant found in her possession not only Tammy’s address book but also a bag containing a hammer, a pair of scissors, a knife, a pair of gloves, and two Bibles. The record is silent as to the ownership of the latter two items.

David Roberson testified, and proved by a canceled check, that he had paid $1,900 for the waterbed some sixteen months previously; he further testified that he had paid $500 for the carpeting. Both he and his wife testified that none of the damaged items had any value in their present conditions. At the close of the State’s evidence defendant/appellant moved for a directed verdict of acquittal on the grounds that the State had not proven the ownership or the value of the damaged property; the motion was denied.

A Hall County jury convicted Russell of criminal damage to property in the second degree. She was sentenced to two years’ imprisonment, with ten days to serve and the balance on probation, together with payment of $1,000 in restitution and mandatory participation in a mental health program. Russell appeals, enumerating as error the denial of her motion for directed verdict of acquittal on the basis of the alleged insufficiency of the evidence of ownership and the State’s alleged failure to prove the value of the property. Held:

1. OCGA § 16-7-23 states in pertinent part: “(a) A person commits the offense of criminal damage to property in the second degree when he: (1) Intentionally damages any property of another person without his consent and the damage thereto exceeds $500.00.” The victim’s husband stated that he had purchased the waterbed and carpet and testified to the amount he had paid. He produced a canceled check for $1,900, with which he had paid for the waterbed. He further testified that the items were useless after Carol’s depredations. This evidence established not only the ownership but the present value of the items, within the contemplation of the statute, which requires that they be worth more than $500 to warrant conviction. Cf. Johnson v. State, 156 Ga. App. 411 (274 SE2d 778) (1980), cert. denied, 451 U. S. 989 (101 SC 2327, 68 LE2d 848) (1981), in which this court reversed a conviction for criminal damage to property because the owner of the damaged property offered only an opinion as to its value, unsupported by any documentation.

2. Examination of the transcript and the remainder of the record reveals that the evidence was more than sufficient to authorize a jury to find appellant guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Appellant’s enumeration of error is without merit.

Judgment affirmed.

Carley and Sognier, JJ., concur specially.

Carley, Judge,

concurring specially.

I agree that the judgment of conviction should be affirmed. However, I cannot join the majority opinion because I do not believe that humor has a place in an opinion which resolves legal issues affecting the rights, obligations, and, in this case, the liberty of citizens. The case certainly is not funny to the litigants. I concur in the judgment only.

I am authorized to state that Judge Sognier joins in this special concurrence.

On Motion for Rehearing.

It is common knowledge that one judge is not the Court of Appeals, nor can one judge speak for the Court when the merits of a case are involved. Speaking then only as the author of the majority opinion, I note that some cases, as here, involve unusual and colorful factual situations. Often, related quotations and expressions are evoked, emphasizing pithy portrayal of the points under consideration. Two famous but innocuous quotations from Alexander Pope and Dorothy Parker were included in the majority opinion here. On rehearing, in deference to appellant attorney’s able articulations, and based on the other two judges’ vote of “concur in the judgment only,” additional comments here are affirmatively advanced.

I

Colorful Quotes and Language of Levity

Considerable precedent exists for an array of differing styles of written opinions by judges. This flexibility provides judicial independence for differing views. On page twenty-six of the current history book of the Court of Appeals, unanimously approved by all nine Judges, it is acknowledged: “Books containing compilations of decisions under such titles as ‘wit and wisdom in court opinions’ always include reprints from the Court of Appeals of Georgia. (See also former Court of Appeals Judge H. Sol Clark’s ‘Judicial Humor (?): A Personal Reminiscence,’ 20 Trial 68 et seq., Association of Trial Lawyers of America, June 1984.)”

In the latter cited article, Judge Clark observes, “In all seriousness, Appellate Judges should consider that a little levity lightens their load.” He believes “A sense of humor can complement fine judicial standards” and “ward off the highly infectious disease ‘black-robe-itis’,” and can immunize Judges to the “abhorrent judicial ailment known as the ‘divinity virus.’ ” He quotes Judge Harold Medina: “A judge is almost of necessity surrounded by people who keep telling him what a wonderful fellow he is, and if he once begins to believe it, he is a lost soul.” (Judge Clark is former Dean of the International Academy of Trial Lawyers, former President of SCRIBES, and is acknowledged as “one of Georgia’s great judges.”)

Georgia’s most frequently cited Appellate Judge is the illustrious and legendary Chief Justice Logan E. Bleckley. Almost every one of his written opinions contains a bit of wit as well as a word of wisdom. One of many examples is: “The groom and bride each comes within/ The circle of the other’s kin;/ But kin and kin are still no more/ Related than they were before.” Central R. & Banking Co. v. Roberts, 91 Ga. 513 (18 SE 315) (1893). See, as further examples, defining public figures “is much like trying to nail a jellyfish to the wall,” Sewell v. Eubanks, 181 Ga. App. 545 (352 SE2d 802) (1987); “How ‘bout them dawgs?,” Glennville Wood &c. Co. v. Riddlespur, 247 Ga. 3 (276 SE2d 1) (1981); “abhors star chamber proceedings . . .; like a candle, court records hidden under a bushel make scant contribution . . . ,” Atlanta Journal & Constitution v. Long, 258 Ga. 410 (369 SE2d 755) (1988); a lie detector in a criminal case is equated with a braying donkey, State v. Chambers, 240 Ga. 76, 81 (239 SE2d 324) (1977); “grand conglomerations of garbled verbiage and verbal garbage,” State Hwy. Dept. v. Price, 123 Ga. App. 655, 657 (182 SE2d 175) (1971); in a criminal conviction of selling fresh-water crappie it was observed, “to transport a sick cat to the veterinarian; or to take a goldfish to school for ‘Show and Tell’; or to haul a blue-tick hound in a pickup truck,” Maddox v. State, 252 Ga. 198, 201 (312 SE2d 325) (1984); in a lengthy footnote, angle of repose and angle of friction of a pile of sand is discussed as mathematically and scientifically determinable, NEDA Constr. Co. v. Jenkins, 137 Ga. App. 344 (223 SE2d 732) (1976); entire two-page opinion in a civil case written in verse, Wheat v. Fraker, 107 Ga. App. 318 (130 SE2d 251) (1963); entire four-page opinion in a criminal case written in verse, Brown v. State, 134 Ga. App. 771 (216 SE2d 356) (1975); the last five sentences in the opinion discuss the virtue of two ladies as they wrangle over possession of a diamond ring, Mewborn v. Weitzer, 15 Ga. App. 668 (84 SE 141) (1914); four-page poem about golden calf of precedent, Van Kleeck v. Ramer, 62 Col. 4, 42-46 (1916). See also 182 Ga. App. L, and Rogers, Opinions & Stories of & from the Ga. Courts & Bar (Oxford, NH: Equity Pub. Corp., 1973); Hall, “Judicial Sayings of Justice Glenn Terrell” (Atlanta: The Harrison Co., 1964); and Ga. Bar Assn., “Logan E. Bleckley” (Macon: Mercer Univ. Press, 1982), for a collection of many other examples of opinions containing language of levity.

Decided July 7, 1988

Rehearing denied September 6, 1988

Stanley W. Robbins, James H. Whitmer, for appellant.

II

Seriousness of Judicial Review

This appeal was based on (A) the alleged failure of the State to prove the value of the property said to have been damaged, and (B) the general grounds. This case is an important case, and the appeal filed is not a frivolous appeal. The majority opinion reflects a detailed study and outline of the facts in the case. Careful and serious consideration has been given to both errors enumerated. All cases cited in the briefs have been read and reviewed. Applicable statute and case law, and reasoning based thereon, is provided in the opinion supporting each division and the holdings in the case. The majority and special concurrence in this case have been officially reported and are open to public scrutiny.

Compare this detailed treatment and careful review by the majority opinion in the instant case with other criminal cases where only a sentence or so is provided as a majority opinion, where no facts or law are discussed, and the case is not considered worthy of publication or of being officially reported: robbery with a sawed-off shotgun, Carter v. State (Case No. 76615, decided by the Court of Appeals July 12, 1988); robbery by a gun, Wilcox v. State, (Case No. 76426, decided by the Court of Appeals July 12, 1988); husband stabbing his hospitalized wife 13 times with a knife, Collins v. State (Case No. 76730, decided by this court on July 15, 1988).

Concurring in the judgment only (J/O) is a legitimate vote and is widely used under our Rule 35. Seemingly, however, our court has set an all-time record in its use during the year 1987. In criminal cases where rights and liberties are at stake, J/O’s should be used sparingly. Staid, sedate, and even stodgy opinions are superior to scanty, shallow, swift, short-shrift J/O votes or opinions, whether issued in civil or criminal cases. The J/O tells the litigant little or nothing about the case, or, seemingly, provides not even the time of day. This treatment “certainly is not funny to the litigants” and bodes ill to serious appellate review of cases.

C. Andrew Fuller, District Attorney, Daniel A. Summer, Assistant District Attorney, for appellee.

       The record does not reveal whether Tammy’s rings were purchased from the purveyors expressly preferred by appellant or were of a less prestigious provenance.