author: Miller, Judge.

text:
    A99A1751.
    THE STATE v. COE.
    (533 SE2d 104)
   Miller, Judge.

In this prosecution for multiple alternative counts of driving under the influence of alcohol or drugs, plus possession of less than one ounce of marijuana, the State Court of DeKalb County granted John H. Coe’s motion to suppress the results of a chemical test of Coe’s urine. Pursuant to OCGA § 5-7-1 (a) (4), the State brings this direct appeal. Viewed in the light most favorable to the trial court’s determination, the evidence adduced at the suppression hearing authorized the following facts:

On February 10, 1998, police were conducting a driver’s license and insurance roadblock, and Coe was stopped at approximately 2:00 a.m. While Coe was searching for his documents, the officer “was able to detect a slight odor of an alcoholic beverage coming from Mr. Coe’s person.” Coe, whose eyes were bloodshot and watery, stated he had consumed two beers. After the officer administered the horizontal gaze nystagmus, the walk and turn, and the one-leg stand field sobriety tests, he felt Coe was impaired and formally placed him under arrest for driving under the influence. Once Coe was placed in the rear of the patrol car, he was read the implied consent notice for suspects age 21 and over and was requested to submit to a chemical test of only his breath. A subsequent search of Coe’s vehicle incident to that arrest revealed suspected marijuana in clear plastic bags plus some suspected marijuana cigarettes. The results of a breath test administered at the jail registered a blood alcohol concentration of 0.045 grams percent. At that point, the arresting officer read Coe his implied consent notice again and asked him to submit to a urine test. Coe agreed and submitted to the urine test.

The trial court denied the motion to suppress the marijuana found in the vehicle but granted the motion to suppress the results of the test of defendant’s urine because Coe was never cautioned of his rights under Miranda v. Arizona, despite his formal arrest. In three enumerations of error, the State contends this ruling is erroneous because state law, either as amended or as in effect at the time, specifically allowed the investigating officer to request a urine test after a breath test. We agree the statute in effect at the time authorized the State to request a urine test after a breath test and reverse.

1. In the version of OCGA § 40-5-67.1 (a) in effect on February 10,1998, the General Assembly provided that, “[s]ubject to Code Section 40-6-392, the requesting law enforcement officer shall designate which test shall be administered, provided that the officer shall require a breath test or a blood test and may require a urine test.” And in State v. Warmack, this Court held that this plain statutory language authorized the requesting officer to select a breath test and a urine test or a blood test and a urine test. But Warmack went on to hold that, because state law affords greater protection against self-incrimination than the federal constitution, “where the driver is already in State custody, as here, the request to undergo further State testing must be preceded by Miranda warnings.” Complying with this ruling, the trial court suppressed the results of Coe’s urine test, since it was undisputed Coe was not given Miranda warnings before choosing to submit to the second State-administered test.

2. Under the law in place at the time in question, as well as now, routine roadside questioning does not constitute custodial interrogation triggering the protections of Miranda, because the detainee is generally not in custody or under arrest. If roadside questioning develops into an arrest, the protection of Miranda arises, and the arrestee is entitled to suppress certain evidence obtained without proper Miranda warnings, such as the results of field sobriety tests. But neither due process nor the Georgia privilege against self-incrimination codified at OCGA § 24-9-20 (a) is implicated by the choice granted by the Georgia Implied Consent Statute whether to submit to a chemical test of bodily substances such as blood, breath, or urine. The distinction lies between performing incriminating acts, such as field sobriety tests, and submitting to breath, blood, or urine tests. The State “cannot force a defendant to act, but [nevertheless] can, under proper circumstances, produce evidence from his [body].” Thus, an arrestee is not, under Georgia constitutional or statutory law, entitled to Miranda warnings before deciding whether to submit to the State’s request for an additional test of breath, blood, or urine. The Warmack decision is contrary to the earlier rulings of our Supreme Court that the Georgia protections against self-incrimination are not implicated by chemical testing of bodily substances. Since the Court of Appeals has no authority to overrule or modify a decision of the Supreme Court, Warmack itself is hereby overruled. The trial court’s suppression of the urine test results cannot be sustained on the ground that Miranda warnings were not given to a DUI arrestee before he decided to submit to a urine test after taking a breath or blood test.

Decided March 29, 2000.

Gwendolyn R. Keyes, Solicitor, Lauren E. Waller, Thomas E. Csider, Assistant Solicitors, for appellant.

Steven P. Berne, for appellee.

3. As noted above, the then-applicable version of OCGA § 40-5-67.1 (a) plainly required either a breath test or a blood test of the suspect driver and equally plainly authorized a discretionary urine test. There was certainly no statutory requirement that the requesting officer designate all tests to be requested before the initial test is taken, and any contrary language in Warmack is hereby disapproved. In our view, former OCGA § 40-5-67.1 (a) clearly authorized a subsequent urine test if the requesting officer deemed it necessary or useful after seeing the results of the required breath or blood test. Since the requesting officer here was authorized by statute to request the urine test after seeing the equivocal results of Coe’s breath test (0.045 grams percent) and because the Georgia law on self-incrimination does not bar the results of chemical tests on bodily substances despite the absence of post-arrest Miranda warnings, the trial court erred in suppressing the urine test results in this case.

Judgment reversed.

Johnson, C. J., McMurray, P. J, Pope, P. J., Andrews, P. J., Smith, Eldridge, Barnes, Ellington and Phipps, JJ, concur. Blackburn, P. J., and Ruffin? J., concur in the judgment only.

       384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       230 Ga. App. 157, 158 (495 SE2d 632) (1998).

       The Warmack decision also holds that this language does not, however, authorize the requesting officer to make another selection if, having initially designated only one test, the officer is “dissatisfied” with the results of that test. Id. For the reasons that follow, we overrule this statutory construction.

       Id. at 158-159, citing Hughes v. State, 259 Ga. 227, 228 (2) (a) (378 SE2d 853) (1989).

        Stanley v. State, 195 Ga. App. 706, 708 (5) (394 SE2d 785) (1990).

        State v. O’Donnell, 225 Ga. App. 502, 503 (1) (484 SE2d 313) (1997) (whole court).

        Lebrun v. State, 255 Ga. 406, 407 (3) (339 SE2d 227) (1986).

        Hughes v. State, 259 Ga. 227, 228 (2) (a) (378 SE2d 853) (1989). See also Price v. State, 269 Ga. 222, 225 (3) (498 SE2d 262) (1998) (where a reasonable person would believe the detention was not temporary, failure to give Miranda warnings renders evidence regarding field sobriety tests inadmissible); State v. O’Donnell, supra, 225 Ga. App. at 504 (2) (results of field sobriety tests given to person under arrest without prior Miranda warnings are inadmissible under OCGA § 24-9-20 (a), which codifies privilege against self-incrimination); State v. Whitfield, 214 Ga. App. 574 (3) (448 SE2d 492) (1994) (post-arrest field sobriety tests inadmissible without Miranda warnings).

        Allen v. State, 254 Ga. 433, 434 (1) (a) (330 SE2d 588) (1985). Accord Green v. State, 260 Ga. 625, 627 (2) (398 SE2d 360) (1990). See also State v. Mack, 207 Ga. App. 287 (2) (427 SE2d 615) (1993).

        Kehinde v. State, 236 Ga. App. 400, 401 (512 SE2d 311) (1999). See also Wessels v. State, 169 Ga. App. 246 (1) (312 SE2d 361) (1983) (defendant’s refusal to submit to chemical test is not compelled and so not violative of Georgia privilege against self-incrimination).

        Creamer v. State, 229 Ga. 511, 517-518 (3) (192 SE2d 350) (1972) (surgical removal of bullet from murder suspect over objection not violative of privilege against self-incrimination under Georgia rule). See also Strong v. State, 231 Ga. 514, 519 (202 SE2d 428) (1973) (removal of bodily substance (blood) from unconscious suspect “does not cause the person to be a witness against himself within the meaning of Fifth Amendment protection and similar provisions of Georgia law”) (citations omitted).

        State v. Lord, 236 Ga. App. 868, 870 (513 SE2d 25) (1999) (evidence not protected by privilege against self-incrimination cannot be suppressed due to absence of Miranda warnings). See Fantasia v. State, 268 Ga. 512, 513 (2) (491 SE2d 318) (1997) (if there is no State coercion or compulsion, individual’s right against self-incrimination not implicated by admission of breath test results).

        Adams v. State, 174 Ga. App. 558, 559 (2) (331 SE2d 29) (1985).

        State v. Lord, supra, 236 Ga. App. at 870.


source: Caselaw Access Project

author: Smith, Judge. Miller, Judge,

license: Public Domain

text:
    A99A1998.
    WALKER v. BRANNAN.
    (533 SE2d 129)
   Smith, Judge.

In this case, we must consider whether a plaintiff may avoid the consequences of failing to file within the applicable statute of limitation through a belated assertion that the statute was tolled by mental incapacity. Here, the plaintiff’s contention by affidavit that she suffered from an unspecified, debilitating mental condition lasting either 20 or 28 days is in direct contradiction to her deposition testimony, and the trial court did not err in refusing to toll the statute.

On October 12, 1998, Sheila Walker filed suit against Lean Brannan for injuries sustained on September 30, 1996, in an automobile accident. After discovery, including Walker’s deposition, Bran-nan moved for judgment on the pleadings on the ground that the statute of limitation had expired. In response, Walker submitted an affidavit that she was mentally incapacitated for 20 days following the accident. In her brief in response to Brannan’s motion, she contended that the statute of limitation was tolled for legal incompetence under OCGA §§ 9-3-90 and 9-3-91, thus saving her action. She subsequently amended her complaint to include the claim that she was mentally incapacitated for 28 days.

The trial court granted Brannan’s motion for judgment on the pleadings, concluding that Walker’s affidavit contradicted her deposition testimony and that Walker gave no reasonable explanation for the “gross contradictions in her deposition and affidavit.” Walker appeals, contending that her deposition testimony is not contradictory. We disagree.

OCGA § 9-3-90 (a) provides:

Minors and persons who are legally incompetent because of mental retardation or mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.

OCGA § 9-3-91 provides that a disability not caused by the party and suffered after a right of action has accrued shall toll the applicable limitation “during the continuance of the disability.”

Decisions construing the tolling statute make plain that the application of the law is confined “to situations where it is not fair to charge a suitor with the running of the clock, because of his mental condition.” Chapman v. Burks, 183 Ga. App. 103, 105 (1) (357 SE2d 832) (1987). While a plaintiff need not be so mentally incompetent that he should be confined, or require a guardian, he must be “so mentally incompetent (non compos mentis or insane), so unsound in mind, or so imbecile in intellect, that he could not manage his ordinary affairs of life.” (Punctuation omitted.) Id. The test for mental incapacity is not whether one has merely mismanaged his affairs or was merely unclear in his mind or not bright. Rather “[t]he test is one of capacity — whether the individual, being of unsound mind, could not manage the ordinary affairs of his life.” (Citation and punctuation omitted.) Id.

In reviewing the trial court’s decision, we note that the trial court can determine as a matter of law that the tolling statute does not apply. Jacobs v. Littleton, 241 Ga. App. 403, 406 (3) (525 SE2d 433) (1999). Moreover, the burden was on Walker “to prove the incapacity which she alleged tolled the running of the statute, and her self-serving affidavit does not suffice. [Cit.]” Id. In Jacobs, the plaintiff actually suffered a head injury and underwent brain surgery, but her self-serving affidavit did not establish a tolling of the statute. The same is true for Walker.

It is well established that on summary judgment a party’s self-contradictory testimony, if unexplained, must be construed against the party-witness, even when the party-witness is the respondent rather than the movant. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986). In Chapman, supra, we found no contradiction between the plaintiff’s deposition and her affidavit. On both occasions, she testified in considerable detail to her mental agony due to the great pain she was experiencing.

But Walker’s testimony in her deposition is substantially in conflict with her later, self-serving affidavit. In her deposition, Walker was asked numerous questions regarding the extent of her injuries. While she was never asked specifically about any mental incompetence or incapacity, she was asked a series of questions regarding the extent of her injuries due to the collision. The questions were not limited in any way to her physical condition, and she responded that she did not have any “serious thing, just muscle spasm” and some pain in her lower back. This testimony directly and inexplicably contradicts the statements in her later affidavit testifying to being “seriously injured,” and to having profound, overwhelming, and persistent injuries allegedly due to the collision.

In addition, Walker’s own deposition plainly demonstrates that she was able to manage her ordinary affairs of life during the period immediately following the automobile collision. In her deposition, Walker testified that she was able to get out of her car without assistance, and she testified at some length to events she observed after thfe accident. She testified that “the police and everything was just questioning me about the accident” and that a state trooper interviewed her at the hospital, where she was not admitted. She also testified that “we” made an attempt to take photographs of the other driver’s vehicle the day after the collision, but that effort was unsuccessful because the other driver’s insurer removed it “the next day.” She added that, in connection with these efforts, she had already called an attorney to represent her.

Walker testified that she was not admitted to the hospital and that she was able to speak with investigating officers, participate in efforts to photograph evidence, and personally call an attorney to represent her. She specifically denied having any “serious thing.” And yet in her affidavit, submitted only after Brannan’s motion was filed, Walker belatedly claimed:

At the time of the accident, I was seriously injured. From October 9, 1996 to October 28, 1996,1 was at home and was not able to handle my normal daily activities. During the said aforesaid period of time, I was totally mentally incapacitated during this time. I stayed in bed because of excruciating pain and I was not able to conduct my ordinary affairs of life. I was unable to care for myself and was not aware of the goings on around me. I was in severe pain and I did not have a mental understanding of my surroundings. I was totally mentally incapacitated for 20 days. My mental incapacitation was not voluntary [sic] caused by me. It was beyond my control. I was delirious and could not communicate intelligently with my surroundings. In summary, during the aforesaid period of time, I was totally mentally incapacitated.

She has offered no explanation for the contradictions between her deposition and the sweeping assertions in her affidavit that she was totally mentally incapacitated “[a]t the time of the accident.” The record contains not one scintilla of medical evidence to document this belated and self-contradictory claim of mental incapacitation. Walker has not only failed to meet her burden of showing incapacity tolling the statute, she has failed to meet the burden imposed on her under Prophecy, supra.

The trial court was eminently correct in its assessment that these unexplained contradictions must be construed against Walker. The dissent asserts that this is a credibility issue and cannot be decided by this court. But construing such contradictions against the person making them is the very purpose of a Prophecy analysis. To hold otherwise would lead to the absurd result that any plaintiff may extend the statute of limitation by means of a belated and conclusory self-serving affidavit contradicting the plain import of existing deposition testimony.

OCGA § 9-3-90 serves the legitimate and laudable purpose of protecting those who are in fact legally incompetent because of mental illness or disability. But OCGA § 9-3-33 and other statutes of limitation also serve the legitimate public policy goal of promoting justice and furthering the certainty of time limitations while preventing unfair surprise. Smith v. Cobb County-Kennestone Hosp. Auth., 262 Ga. 566, 572 (2) (423 SE2d 235) (1992). It would require suspension of the rules of logic to believe that Walker could call an attorney to represent her and make efforts to obtain photographs during the time she supposedly was also delirious, unable to communicate, and totally mentally incapacitated. The scope of the tolling statute is not sufficiently broad to allow belated and contradictory affidavits circumventing the plain language of the statute of limitation. The trial court did not err in finding that the tolling statute was not triggered, and summary judgment in favor of Brannan was appropriate.

Judgment affirmed.

Pope, P. J., Andrews, P. J., Blackburn, P. J., Ruffin and Ellington, JJ, concur. Miller, J., dissents.

Miller, Judge,

dissenting.

I respectfully dissent from the judgment of affirmance because, in my view, this is not a proper case to apply the rule of Prophecy Corp. v. Charles Rossignol, Inc. Walker’s initial testimony describing only her physical injuries as a result of the accident does not assert the opposite of her affidavit claiming subsequent mental incapacitation. Although Walker testified to events that occurred the day after the September 30 accident, there is no evidence presented in either the deposition or the affidavit that during the period of time from October 9 to October 28 she did in fact manage her day-to-day affairs which would demonstrate the opposite of the affidavit. Walker only testified that she was out of work for 30 days, without further explanation. Furthermore, I find no authority mandating a physician’s affidavit to support the plaintiff’s claim of mental incapacitation.

The purpose of a deposition is to provide information in response to questions; the deponent is not obligated to answer unasked questions or spontaneously provide a complete narrative of events. Therefore, Walker was not required to provide information about her mental capacity unless asked. I cannot categorize her statements describing her physical injuries as being in conflict with a claim of mental incapacitation. Although the timeliness of the affidavit may create doubt as to the validity of Walker’s claim, that credibility determination is not for this court to make. Even if the combination of the affidavit and the deposition renders Walker’s proof of mental incapacity equivocal and casts doubt on her credibility, “still, on a motion for summary judgment, we can not hold that there is no material issue of fact[, and] credibility cannot be resolved on [a motion for] summary judgment.” We are constrained to follow the guidelines of summary judgment, and

Decided March 29, 2000.

Charles E. Muskett, for appellant.

Beck, Owen & Murray, Samuel A. Murray, for appellee.

[w]here the facts are in doubt or dispute, the question of whether or not a cause of action is barred by the statute of limitation is one of fact to be determined by the trier of fact. Ordinarily the question of mental capacity is one of fact to be determined by a jury.

Although the trial court can determine that the tolling statute does not apply as a matter of law, this is only after a contradiction has been identified and the party fails to offer a reasonable explanation. Because the deposition and affidavit are not contradictory, Prophecy does not apply, and the trial court erred in excluding Walker’s evidence of mental incapacity. And because Walker’s affidavit is sufficient, the ’question of whether the action is barred by the statute of limitation should remain for the trier of fact as does the question of mental capacity.

For these reasons, I respectfully dissent.

       The length of Walker’s purported disability varies depending upon whether we consult Walker’s affidavit or her counsel’s later amendment to her complaint.

       Walker’s deposition was a continuation of her deposition in an earlier action brought by her as next friend on behalf of her children.

       Although the accident occurred on September 30, her alleged disability inexplicably began on October 9 and ended on October 28.

       Because the trial court considered matters outside the pleadings, including Walker’s affidavit and deposition, we will treat this as a grant of summary judgment. OCGA § 9-11-12 (c); Merritt v. Citizens Trust Bank, 164 Ga. App. 716, 717 (1) (298 SE2d 264) (1982). We note that both Walker and the trial court applied a summary judgment standard below.

       256 Ga. 27 (343 SE2d 680) (1986).

       Compare Jacobs v. Littleton, 241 Ga. App. 403, 405-406 (3) (b) (525 SE2d 433) (1999). The proposition in Jacobs that the trial court can determine as a matter of law that the tolling statute, OCGA § 9-3-90, does not apply is based on Hickey v. Askren, 198 Ga. App. 718 (403 SE2d 225) (1991). Hickey itself is a proper application of Prophecy’s rule because that plaintiff’s affidavit of mental capacity was rebutted by her deposition testimony. 198 Ga. App. at 722 (4). Because there is no such contradiction in this case, Jacobs is inapplicable.

       (Citations and punctuation omitted.) Tri-Cities Hosp. Auth. v. Sheats, 156 Ga. App. 28, 32 (273 SE2d 903) (1980), aff’d, 247 Ga. 713 (279 SE2d 210) (1981). “‘In a summary judgment case this court cannot consider the credibility of a witness or his affidavit concerning his state of mind or intention; and where his statement in relation thereto conflicts with other strong evidence to the contrary, a jury must decide the credibility question and resolve any remaining conflict.’ ” 156 Ga. App. at 32.

       (Citations and punctuation omitted.) Chapman v. Burks, 183 Ga. App. 103, 107 (2) (357 SE2d 832) (1987).

       See Jacobs, supra, 241 Ga. App. at 406 (3) (b); Hickey, supra, 198 Ga. App. at 722 (4).

       See Chapman, supra, 183 Ga. App. at 107 (2).


author: Pope, Presiding Judge.

text:
    A99A2225.
    A99A2238.
    PATTERSON v. SOUTHEASTERN NEWSPAPERS, INC. LEWIS v. SOUTHEASTERN NEWSPAPERS, INC.
    (533 SE2d 119)
   Pope, Presiding Judge.

Generally, an employer is not liable for injuries caused by its employees during their commute to or from work but may be liable where an employee is on a special mission at the direction of the employer. Mariko Patterson’s husband was struck and killed by an employee of Southeastern Newspapers, Inc. while the employee was driving home after delivering newspapers as a substitute for the assigned carrier who was ill. The main issue in this case is whether Southeastern should be held liable for the employee’s negligence when the employee was called in outside of his regular hours to cover for a missing employee. Because there are facts supporting the conclusion that the employee was on a special mission for Southeastern, the trial court improperly granted summary judgment for the newspaper.

Construed in favor of Patterson, the facts show that Joshua Bourgoin was a salaried, full-time employee of Southeastern at the time of the accident. His title was “relief district manager,” and his regular duties included overseeing distribution points for newspaper delivery carriers in place of absent district managers. He oversaw distribution points on Monday and Tuesday mornings from either 2:30 or 4:30 a.m. to 9:30 a.m. He made sure carriers came to work and got their newspapers, he took care of complaints, and he covered for absent drivers. But he delivered papers only if one of the carriers did not show up. On Monday and Tuesday he also attended a meeting at the office from 9:30 to 10:30 a.m. On Wednesday he attended a meeting beginning at 10:30 a.m. and had a “solicitation meeting” that involved soliciting sales in the afternoon.

For the remainder of the week he was on call. On those days, if called to do so, he covered for district managers who could not report to work, or he “threw” a route if a carrier did not show up and the district manager was already covering for another missing carrier. Bourgoin might learn he was needed for such an assignment as early as Monday or Tuesday, but he often received a call the night before, and sometimes the call came an hour before he was needed. If he had other plans, he was not required to come in. He was not called for this type of work every week. He did not receive extra pay for this work. Southeastern acknowledges that his assigned hours varied week to week depending on whether and to what extent he was called in after Wednesday and that he was not required to punch a clock. Bourgoin was salaried, but he also received a fixed “automobile allowance” of approximately $184, every two weeks, based on an estimate by Southeastern of the amount he would have to drive his car during the course of his duties.

On Wednesday night, January 7, 1998, Bourgoin got a call to cover for a carrier on Thursday morning. He was not scheduled to go in that day. He finished the route around 6:00 a.m. and headed home. On the way, his car struck and killed 67-year-old Jack Patterson.

1. The general rule of respondeat superior holds: “When a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master. [Cits.]” Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 777 (257 SE2d 186) (1979). With regard to commuting to and from work, the general rule is that the employee is acting for himself at that time and, therefore, the employer is not to be held liable for an injury occurring during that time. Jones v. Aldrich Co., 188 Ga. App. 581, 583 (1) (373 SE2d 649) (1988).

However, there is an exception to the general rule where the employee undertakes a special mission at the direction of the employer. Aldrich, 188 Ga. App. at 583 (1). As stated in Aldrich,

Where the employee, before or after customary working hours, is on his way home after performing, or on the way from his home to perform, some special service or errand or the discharge of some duty incidental to the nature of his employment in the interest of, or under direction of, his employer, and an injury arises en route from the home to the place where the work is performed, or from the place of performance of the work to the home, such injury is considered as arising out of and in the course of the employment.

(Citations and punctuation omitted.) Id.

Although Southeastern contends that Bourgoin was not on call but merely driving home from his regularly assigned duties, the facts could support the conclusion that the exception found in Aldrich is applicable here. That exception requires “that the errand or mission itself be a ‘special’ or uncustomary one, made at the employer’s request or direction.” Hargett’s Tel. Contractors v. McKeehan, 228 Ga. App. 168, 170 (491 SE2d 391) (1997).

Construing the facts in favor of Patterson, Bourgoin was not scheduled to go to work on Thursdays. When he was called he did not have a set route; he filled in wherever the need arose. He was not merely being called to report to his regular distribution point or to take care of his normal assignment. Rather, on this particular occasion, he was called on short notice to go directly to a distribution point where there was a need. It is true that being called in was not uncommon, but it still required a special request by Southeastern. Southeastern also gained an incidental benefit from the arrangement. By putting Bourgoin on call in his own car, Southeastern created for itself a flexible way of covering for missing employees in the middle of the night. This benefit would not result from ordinary commuters with regular schedules. When he completed the assignment, Bourgoin proceeded directly toward home from where he found himself when he finished throwing the route.

The facts in favor of Southeastern suggest that Bourgoin’s on-call day was very much like his regular work day, the main difference being that on this particular day he did not know where he was going until he got the call to report.

Although reasonable minds could differ, there is an issue of fact as to whether Bourgoin was acting in the scope of his employment when he went in on Thursday morning, and therefore the court erred in granting summary judgment to Southeastern on this legal theory.

Schofield v. Cox Enterprises, 212 Ga. App. 354 (441 SE2d 693) (1994), is not controlling. There the employee was on his way home from his scheduled daily work and on a personal errand. Id. at 354. Marketing Sales Indus. &c. v. Roberts, 118 Ga. App. 718 (165 SE2d 319) (1968), is also distinguishable. There the employee was traveling home after being off duty for a period of time during which he stopped for two drinks at a bar. Id.

We find support for this result in two cases from other jurisdictions facing similar facts. In Evington v. Forbes, 742 F2d 834 (4th Cir. 1984), the Fourth Circuit applying North Carolina law held that where an on-call hospital employee had an accident while en route to the hospital in response to an emergency call, the facts supported the conclusion that he was operating in the scope of his employment. One distinction in Evington, however, is that the employee was paid overtime for his on-call work. Id.

In Robinson v. George, 16 Cal.2d 238 (105 P2d 914) (1940), the Supreme Court of California held that there was an issue of fact whether a newspaper delivery person was acting within the scope of his duties when, outside of his regular hours, he was on call to deliver newspapers to addresses missed by the regular carrier. The high court noted the standard rule — that an employee going to or from work is not considered to be acting in the scope of his employment. But because the employee had to remain on call and make deliveries as ordered, these calls could be considered special errands and therefore an exception to the general rule. In Robinson, as in Evington, the employee was paid for the extra work.

Although Bourgoin was not paid extra for his on-call assignments, he was salaried and received a fixed automobile allowance. Both forms of compensation could have been intended to compensate Bourgoin for his regular and on-call work. Thus, the distinction noted above for Evington and Robinson does not control this case.

We do not hold that the mere fact that Bourgoin was on call means that he was acting within the scope of his employment. See Sherar v. B & E Convalescent Center, 49 Cal.App.3d 227, 229 (122 Cal. Rptr. 505) (1975) (“on-call” employee reporting to her regular shift was not acting within scope of employment); Ehlenfield v. State, 404 NYS2d 175 (N.Y. 1978) (“on-call” police officer not acting in scope of employment when involved in accident while bringing refrigerator to station). Rather, construing the facts in favor of Patterson, Bourgoin was within the scope both because he was responding to an actual call at the time of the accident and because the call itself was in the nature of a special errand or mission.

2. Patterson also contends that Southeastern was negligent in hiring and retaining Bourgoin as a driver, as well as calling him to drive at- 4:30 a.m. without sufficient notice. Although Southeastern did some investigation of Bourgoin before hiring him, Patterson contends it was inadequate and that Southeastern should have discovered his checkered driving record as well as his continued driving violations during the time he was employed by Southeastern.

Southeastern hired Bourgoin on July 9, 1997. Prior to hiring him, Southeastern, in accordance with its policy, made a request for an “AMS driver record service report” for Bourgoin from a private company named Palmer & Caye Carswell. That report revealed that Bourgoin had a clean record for the preceding three years. The human resources department is responsible for requesting the motor vehicle report. The human resources director testified that if the report had shown that Bourgoin had a suspended license or violations that would result in insurance cancellation, his employment would have been terminated. But she would not discharge an employee if the report showed only speeding or driving too fast for conditions. The human resources director also testified that she did not know what “AMS” stood for or how far back in time such a report went. And she said that she had no training in what level of investigation ought to be made. Finally, the newspaper has a policy of updating driving information once a year in the employee’s month of hire. So, Southeastern was scheduled to request another report on Bourgoin in July 1998.

Bourgoin, who was 23 years old both when hired and at the time of the accident, testified that he had numerous driving violations over a period of seven years before he was hired, although only one, a speeding ticket, occurred in the three years immediately preceding his employment. There was also evidence that in' September 199.7, Bourgoin pleaded guilty to speeding. He admitted to coming to work “late and drunk” on one occasion. And, at the time of the accident, unbeknownst to Southeastern, his license was suspended as a result of a citation for driving under the influence. He did not inform the newspaper of this incident despite agreeing at the time of his employment to tell of any “major citations . . . (i.e., suspended license, canceled insurance).” Southeastern obtained another “AMS” report for Bourgoin after the accident, and it shows a conviction for speeding in September 1997 and the DUI conviction in December 1997, together with an indication that his license had been suspended.

“The appropriate standard of care in a negligent hiring/ retention action is whether the employer knew or should have known the employee was not suited for the particular employment.” Kemp v. Rouse-Atlanta, 207 Ga. App. 876, 878 (1) (429 SE2d 264) (1993).

Green v. Johnston Realty, 212 Ga. App. 656, 659 (3) (442 SE2d 843) (1994). See also Cherry v. Kelly Svcs., 171 Ga. App. 235, 236 (2) (319 SE2d 463) (1984); OCGA § 34-7-20. In Cherry, we held that the employer’s actual knowledge of one traffic violation created a question of fact as to whether the employer should have inquired further into an employee’s driving record before hiring him. See also Sparlin Chiropractic Clinic v. TOPS Personnel Svcs., 193 Ga. App. 181 (1) (387 SE2d 411) (1989) (issue of fact exists where plaintiff produced some evidence that employer should have known of employee’s improper past conduct). Compare Bunn-Penn v. Southern Regional Med. Corp., 227 Ga. App. 291, 294 (2) (488 SE2d 747) (1997) (hospital’s knowledge of employee’s questionable conduct around female patients did not put hospital on notice that employee had propensity to commit sexual assault).

But here, Patterson failed to present any evidence that Southeastern knew or should have known of Bourgoin’s bad driving record. Although Bourgoin testified that he had numerous prior violations, Patterson did not put in any valid evidence that Bourgoin’s official driving record reflected any of the alleged driving infractions at the time that Southeastern investigated Bourgoin’s record. Nor did Patterson put forward any evidence to show that Southeastern’s investigation procedures were faulty or not reasonable under the circumstances.

“In response to a motion for summary judgment, the non-moving party may not rest on generalized allegations, but must come forward with specific facts. . . .” Precise v. City of Rossville, 261 Ga. 210, 212 (3) (403 SE2d 47) (1991). Southeastern showed that it investigated Bourgoin’s past driving record before hiring him and found nothing. Even though Bourgoin testified to numerous driving violations, Patterson has put forth no evidence to show that a more thorough search of the motor vehicle records in July 1997 would have revealed them. She has not shown that any of Bourgoin’s earlier offenses were in fact on his record at the time or that a reasonable investigation would have uncovered them. The only evidence Patterson offered is that on April 7, 1999, three months after the fatal accident, Bourgoin’s driving record showed one speeding ticket before his date of hire. But again, there is no evidence that this violation was on his record in 1997. Also, Patterson has no evidence that the “AMS” report prepared by Palmer & Caye Carswell was not accurately and thoroughly prepared or that there was any reason that Southeastern should not have relied on it. Because there is no evidence that Southeastern should have known of Bourgoin’s earlier bad driving record, the claim for negligent hiring fails.

Decided March 29, 2000.

Warlick, Tritt & Stebbins, Charles C. Stebbins III, for appellants.

Dye, Tucker, Everitt, Wheale & Long, A. Rowland Dye, Barrickman, Allred & Young, Fredric S. Young, for appellee.

Similarly, Patterson’s claim of negligent retention fails. Southeastern had a procedure in place to check the driving record of employees who drove as a part of their job. There is no indication that Southeastern did not follow its procedures. Also, Patterson has not suggested a procedure that would have revealed the license suspension within the 11 days that elapsed between the suspension and the accident. Nor has Patterson shown when the September 1997 speeding ticket first appeared on Bourgoin’s record.

Finally, Patterson has put forward no evidence to support her claim that calling Bourgoin on the night before to fill in on the fateful morning is in and of itself negligent.

Judgments affirmed in part and reversed in part.

Smith and Miller, JJ, concur.

       Patterson and Sandra Lewis as executrix of the estate of Jack Patterson filed two factually identical lawsuits, both of which were dismissed on summary judgment. The two appeals raise the identical issues and are hereby consolidated for the purposes of appeal.


author: Eldridge, Judge. Barnes, Judge,

text:
    A99A2246.
    BROOKS v. THE STATE.
    (532 SE2d 763)
   Eldridge, Judge.

Dennis Brooks was charged with misdemeanor simple battery for making “physical contact of an insulting and provoking nature” with his ex-girlfriend, who is also the mother of his children. A Decatur County jury found him guilty as charged. Without contesting the sufficiency of the evidence against him, he alleges that three errors of law require reversal on appeal. We have reviewed Brooks’ errors as alleged and find them meritless. Accordingly, we affirm.

By way of background, Brooks is an “experienced” criminal defendant who, at the time of trial, had two prior felony convictions and one prior simple battery conviction, the same offense for which he was convicted in the instant case. Consequently, Brooks is familiar with the criminal legal process, with legal representation, and with the consequences of conviction. He chose from the outset of this case to represent himself. Brooks was given a “Rights and Information Form” used for state court misdemeanor cases. This form outlined Brooks’ rights when charged with a misdemeanor criminal offense — a situation with which he was familiar — including his options with regard to the entry of a plea; the possible punishments and sentences; and his right to assistance of counsel, which included that “[y]ou also have the right to represent yourself in connection with the charge and waive your right to be represented by a lawyer. You should be aware, however, that representing yourself, particularly at a trial, has dangers and risks.” The form instructed Brooks that “[y]ou should read this form very carefully and ask questions about anything that you do not understand.”

Brooks read the form himself. A handwritten notation on the face of the form was made and initialed by Ben Kirbo, Solicitor General of Decatur County State Courts. The Solicitor General asserted on the form, filed as a matter of record, that Brooks read the form; Brooks understood the form; and Brooks had no questions about the contents.

Brooks and the Solicitor negotiated a guilty plea. Brooks signed a guilty plea waiver form acknowledging, inter alia, “I understand my right to be represented by a lawyer and to have a lawyer appointed if it is determined that I am not able to hire a lawyer” and “I am not represented by a lawyer, and I freely and voluntarily waive the benefit of being represented by a lawyer and choose to represent myself in connection with these charges.” In addition, Brooks acknowledged that “I have been advised of the nature of the charge against me, the maximum punishment therefor, and acknowledge receipt of a copy of the accusation in said case.” However, apparently facing prison time as a recidivist regardless of plea or trial, Brooks withdrew his guilty plea and opted for trial.

At trial, Brooks had the aid of defense attorney Wayne Lambert through, at minimum, voir dire and jury selection. On the record, Lambert took an active role, including informing the trial court that he and Brooks had no follow-up voir dire questions and that “We’re prepared” to strike a jury, which they subsequently did. Brooks then conducted the rest of the trial pro se. He presented opening argument, cross-examined the two State’s witnesses, conducted direct examination of the witness he called, exercised his right to testify on his own behalf, and presented closing argument. Held:

1. In his first enumeration of error, Brooks, who has secured legal counsel on appeal, contends that the trial court failed to make a determination on the record that he knowingly waived his right to legal representation, with an understanding of the consequences of such waiver, pursuant to the Supreme Court’s decision in Clarke v. Zant, 247 Ga. 194, 196-197 (275 SE2d 49) (1981). Under the facts of this case, we will not reverse on this ground.

(a) In order for a waiver of counsel to be valid, no “magic language” need be used and the trial court does not have to ask any particular questions. Wayne v. State, 269 Ga. 36, 38 (495 SE2d 34) (1998). The record need only reflect that the accused was aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver. Simpson v. State, 238 Ga. App. 109, 112 (517 SE2d 830) (1999).

The dissent would have that a trial judge’s failure to articulate “on the record” a specific finding that a defendant knowingly waived his right to counsel is error per se, regardless of the facts and circumstances of a particular case. However, while such specific finding is preferable, its omission is not error when the record as a whole demonstrates a defendant’s knowing waiver. See Flantroy v. State, 231 Ga. App. 744, 745 (2) (501 SE2d 10) (1998); May v. State, 217 Ga. App. 427, 428 (457 SE2d 694) (1995); Harris v. State, 196 Ga. App. 796 (1) (397 SE2d 68) (1990); Evans v. State, 192 Ga. App. 832, 833 (386 SE2d 712) (1989); Singleton v. State, 176 Ga. App. 733 (337 SE2d 350) (1985); Callahan v. State, 175 Ga. App. 303, 304-305 (333 SE2d 179) (1985). Instead,

[W]e find the Supreme Court has decided against specific guidelines outlining information that must be provided to defendants in order to demonstrate that they were adequately advised of the dangers of proceeding pro se. Instead, the analysis of whether a defendant has been sufficiently warned about the dangers of self-representation will turn on the peculiar facts and circumstances of each case.

Simpson v. State, supra at 112. See also Wayne v. State, supra at 38; McDowell v. State, 239 Ga. App. 667, 669 (522 SE2d 44) (1999). This analysis includes “the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U. S. 458, 464 (58 SC 1019, 82 LE 1461) (1938); Davenport v. State, 216 Ga. App. 259 (454 SE2d 536) (1995).

In that regard:

(i) The record including the waiver form shows that Brooks was informed — and understood — that self-representation at trial was dangerous and that Brooks elected to “freely and voluntarily waive the benefit of being represented by a lawyer and choose to represent [him]self in connection with these charges.” Moreover, the waiver form is not the only basis in the record for finding waiver, as was the situation in the cases upon which the dissent relies.

(ii) The record further shows that Brooks was familiar with the legal system and legal representation as a criminal defendant with three prior criminal convictions; he had experience with the criminal legal process and understood the consequences of criminal conviction. Accord Clarke v. Zant, supra at 196-197.

(iii) Further, the record shows that “[t]his is not a case where a defendant stood trial alone with no assistance or protection of his rights,” since Brooks had the aid of defense attorney Lambert before electing to take over his own defense during trial. Clarke v. Zant, supra. And it is not simply speculation to assume that Lambert did not just “disappear” from this case, as the dissent suggests. There is a presumption of regularity with regard to court proceedings. Vaughan v. Buice, 253 Ga. 540 (322 SE2d 282) (1984). The Sixth Amendment “relies ... on the legal profession’s maintenance of standards sufficient to justify the law’s presumption that counsel will fulfill the role in the adversary process that the Amendment envisions.” Strickland v. Washington, 466 U. S. 668, 688 (104 SC 2052, 2064, 80 LE2d 674) (1984). In that regard, once undertaking representation of Brooks in a legal matter, Lambert could not just abandon the case without input from Brooks. In this case,

[w]e do not question that a defendant has the right to counsel, but he had it in this case and voluntarily gave it up. His right to counsel is not superior to the state’s right to try him for the criminal offenses and does not include the right to manipulate, whether consciously or capriciously, the state’s attempt in good course to prosecute him for the offenses.

(Citations and punctuation omitted.) Strozier v. State, 171 Ga. App. 703, 704-705 (320 SE2d 764) (1984).

(iv) In addition, Brooks — or someone aiding his interests during trial — requested that the entire misdemeanor proceeding be transcribed, thereby preserving Brooks’ appellate rights. Compare Hamilton v. State, 233 Ga. App. 463, 468 (504 SE2d 236) (1998).

From the record, Brooks voluntarily and intelligently elected to represent himself. Any deviation from the specific procedures established in Clarke v. Zant, supra, does not require reversal since the record shows “that [Brooks’] choice was made after he was aware of his right to counsel and that he was aware of the dangers of proceeding without counsel.” Harris v. State, supra at 796 (1); May v. State, supra at 428.

(b) Moreover, regardless of waiver, Brooks’ claim is subject to a harmless error analysis. Clarke v. Zant, supra at 197. While the State has the burden to show that any error was harmless beyond a reasonable doubt, the trial record speaks for itself. “[U]nless there is a reasonable possibility that the [error] contributed to the conviction, reversal is not required.” Schneble v. Florida, 405 U. S. 427, 432 (92 SC 1056, 31 LE2d 340) (1972); Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). Here, no prejudice whatsoever to Brooks has been alleged or shown, and harm as well as error must be shown to warrant reversal. Herrin v. State, 229 Ga. App. 260, 261 (1) (493 SE2d 634) (1997).

The transcript shows that the trial of this case was straightforward. The State’s case against Brooks consisted of the testimony of the victim, Brooks’ ex-girlfriend, stating her version of events. The defense consisted of Brooks’ denial of the victim’s story and Brooks’ recitation of his adaptation. Thereafter, Brooks was subjected to an 11-question cross-examination by the Solicitor that simply allowed him to reiterate that he did nothing wrong, e.g., “[Q:] You didn’t shove her down in the chair? [A:] No, I didn’t.”

■The only other State’s witness was the police officer called to the scene who, during the 13 questions that comprised his direct examination, testified that he had no personal knowledge of what occurred, did not remember the incident, and was only relating what the victim had told him. He testified that the victim had marks on her neck that she claimed had been made when Brooks choked her. The only other defense witness testified that the marks on the victim’s neck were “passion” marks that he had seen on her the day before the incident.

In toto, the trial comprised 40 pages of transcript, including opening, closing, the charge of the court, and the verdict. The jury believed the victim. As much as we may value our profession, there is absolutely nothing in the record to indicate that, if Brooks had been represented by a lawyer, the outcome would have been affected. Thus, the record does not show harm.

And perhaps most importantly, Brooks does not claim that it does. Neither in this Court nor in the court below, has Brooks Over claimed that he was prejudiced by not having a lawyer. Brooks has never claimed that he ever wanted a lawyer or that he would have wanted one if the trial court had made a determination of Brooks’ waiver “on the record.” Brooks does not claim that he did not, in fact, waive the rights about which he now complains or that such waiver was unknowing. The dissent makes all of these claims for him. However, this Court is not at liberty “to change its role from disinterested decision-maker to appellate advocate reviewing a trial record for error.” Rowland v. State, 264 Ga. 872, 874 (1) (452 SE2d 756) (1995).

Brooks’ claim of error is purely a procedural one, i.e., that the trial court erred by failing to specifically determine on the record that Brooks knowingly waived his right to counsel. Thus, “we find this enumeration to be without merit as an allegation of error inasmuch as appellant does not show harm by contending that he in fact wanted a [lawyer] or that his waiver was unknowing.” Jackson v. State, 170 Ga. App. 172, 174 (316 SE2d 816) (1984). Clearly, reversal of a jury’s verdict is unwarranted when based on the premise that a lawyer could have “made a difference” without Brooks making a claim of such. And without some little bit of evidentiary support from the record that there was, in fact, a difference to be made. We have neither the claim nor the evidence before us. As such, this Court will not manufacture prejudice for Brooks by unbidden, unsubstantiated speculation about what might have happened had a lawyer been involved. “Harm cannot be shown by mere speculation and conjecture unsupported by the record.” Evans v. State, 233 Ga. App. 879, 880 (506 SE2d 169) (1998).

This was a straightforward swearing contest. Brooks had his version, and the victim had hers. As succinctly put by the Solicitor during closing argument, “One person says it happened; one person says it didn’t happen. Wall are going to have to decide. . . .” The jury decided. Thus, assuming arguendo that the record fails to sufficiently show waiver of the right to counsel, any such error would be harmless because it is highly “unlikely that defendant’s [conviction was] attributable to his decision to represent himself.” Reviere v. State, 231 Ga. App. 329, 331 (498 SE2d 332) (1998); Lazenby v. State, 181 Ga. App. 854, 855 (354 SE2d 196) (1987). Accordingly, there is no reasonable possibility that the error, if one, contributed to the conviction, and reversal is not required. Schneble v. Florida, supra at 432; Johnson v. State, supra at 61.

2. We find no reversible error in the prosecutor’s closing comment, “I think the evidence is abundantly sufficient for you to return your verdict to the charge of simple battery guilty against Mr. Dennis Brooks. Thank you.” While the argument would have been better framed without the use of the pronoun “I,” the prosecutor’s comment cannot reasonably be taken as a personal opinion by the prosecutor as to Brooks’ guilt. Viewing the prosecutor’s closing argument as a whole, the argument about which Brooks complains was an inartful comment on the State’s evidence as sufficient to support a finding of guilt, which is appropriate. “Although the prosecuting attorney is prohibited from stating his personal opinion, he may make permissible inferencés from the evidence.” (Punctuation omitted.) Bowen v. State, 203 Ga. App. 371, 374 (417 SE2d 18) (1992); see also Hildebrand v. State, 209 Ga. App. 507, 509-510 (433 SE2d 443) (1993).

3. “The court’s charge on reasonable doubt was neither confusing nor misleading, nor was it so incomplete as to constitute reversible error.” Little v. State, 189 Ga. App. 451, 453 (4) (376 SE2d 232) (1988). Taken as a whole, the trial court’s charge conveyed to the jury the applicable principles of presumption of innocence and reasonable doubt. Baldwin v. State, 264 Ga. 664 (449 SE2d 853) (1994); Edwards v. State, 214 Ga. App. 383 (448 SE2d 51) (1994). The single omitted portion of the standard charge about which Brooks complains was that portion which aids the State in defining its burden of proof, and such omission in no way harmed Brooks. See Roberson v. State, 236 Ga. App. 654, 655 (1) (a) (512 SE2d 919) (1999).

Judgment affirmed.

Johnson, C. J, McMurray, R J, Pope, P. J., and Blackburn, P. J., concur. Barnes and Phipps, JJ., dissent.

Barnes, Judge,

dissenting.

I respectfully dissent because (1) existing precedent dictates that the trial court erred when it failed to make any determination, on the record, that Brooks voluntarily and knowingly waived his right to counsel, (2) the majority fails to employ the proper analysis of constitutional error, i.e., was the error harmless beyond a reasonable doubt, and (3) the trial court’s error was not harmless beyond a reasonable doubt. Because the majority opinion also relies upon speculation and overstates the facts shown by the record, this dissent must also include a summary of.the facts.

I. The Facts

The State contends in its brief that “the Solicitor” inquired, prior to any plea, whether Brooks had read and understood a “Rights and Information Form.” The State further alleges that a notation that Brooks had read and understood the form was made on the face of the form. Although there is a handwritten notation “Read Understood No Questions 1/19/99” on the form, followed by illegible initials, there is no evidence in the record showing, as the majority states, that “Ben Kirbo, Solicitor General of Decatur County State Courts,” wrote this notation. Likewise, the record does not contain the alleged conversation between the solicitor and Brooks outlined in the State’s brief. Nor does it show that this notation was made by or in the presence of the trial court. Finally, this form was never signed by Brooks.

The majority points to another form titled “Record of Plea” that was also signed by Brooks on January 19, 1999. It omits the fact that because Brooks did not go through with the guilty plea, the trial court never signed the following portion of the preprinted form:

FINDINGS BY THE COURT
I have satisfied myself that this Defendant’s plea(s) of guilty and/or nolo contendere is/are free and voluntary and he/she is in possession of his/her faculties and is able to understand the nature and consequences of his/her plea(s). I have also determined that this Defendant understands he/she has the right to assistance of counsel at this plea proceeding, and if not represented, knowingly, voluntarily, and intelligently waived that right. I have further determined that any waiver of jury trial by this Defendant is made knowingly, voluntarily and intelligently. The Court is satisfied that there has been a sufficient factual basis shown for acceptance of this/these plea(s) and that the Defendant understands the consequences of the plea(s).

(Emphasis supplied.) Finally, the majority neglects to mention that both the record and the transcript of the trial show no discussion whatsoever between the trial court and Brooks about his decision to represent himself. Instead, the trial court simply asked him if he planned to present any witnesses and whether he intended to testify at the beginning of the trial. When Brooks replied that he did plan to testify, the trial court instructed that the oath be administered to him and started the trial.

II. The Trial Court’s Error

In 1981, our Supreme Court held that in all future cases where a criminal defendant represents himself, “the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se.” Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981).

The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.

(Citations and punctuation omitted.) Hamilton v. State, 233 Ga. App. 463, 466 (1) (b) (504 SE2d 236) (1998).

In Braswell v. State, 240 Ga. App. 510 (523 SE2d 904) (1999), we addressed whether a trial court erred when it failed to abide by this mandate. In Braswell, as in this case, “[t]he transcript reflects that the trial court did not ask [the defendant] a single question about [his] need for counsel or [his] readiness for trial.” Id. The State in Braswell also argued that a lengthy preprinted document signed by the defendant demonstrated a valid waiver of the right to counsel. We rejected this argument, finding that although the documents were evidence that the defendant “was informed of her right to counsel by the solicitor, her adversary, it is hardly evidence that the trial judge fulfilled his duty to determine whether Braswell knowingly relinquished that right.” (Emphasis in original.) Id. at 511.

Likewise, in Strozier v. State, 187 Ga. App. 16, 17 (1) (369 SE2d 504) (1988), we held that a trial court erred when it failed to make a determination on the record that the defendant in a criminal trespass case had voluntarily and knowingly chosen to proceed pro se. In Strozier, we found the trial court erred by not making the required determination, even though the defendant signed a “waiver of counsel” form that stated:

I, the undersigned, defendant in the above stated matter, having been fully acquainted with my right to counsel, fully understand my rights involved, do desire not to be represented by counsel and do hereby waive my right to counsel fully and completely in these proceedings.

Id. at 16.

The evidence in this case shows only that Brooks may have understood that he had a right to counsel and wanted to represent himself in connection with a guilty plea. It also shows that the trial court did not follow the mandate of our Supreme Court to make a determination on the record that Brooks knowingly, voluntarily, and intelligently relinquished his right to counsel to assist him at trial. See Clarke, supra; Braswell, supra. This court has consistently found error as a result of a trial court’s failure to determine, on the record, that a defendant has validly chosen to proceed pro se. See id.; McCall v. State, 232 Ga. App. 684, 686 (1) (503 SE2d 578) (1998); Black v. State, 194 Ga. App. 660 (1) (391 SE2d 432) (1990); Strozier, supra. The majority’s failure to do so in this case creates an irreconcilable conflict in our law and ignores the requirement in Clarke, supra, that “the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se.” Id. at 197.

The majority achieves this result by relying upon general language that the determination of whether there has been a valid waiver depends upon the particular facts and circumstances of each case to find that there was a valid waiver in this case. However, in each of the cases cited by the majority for this proposition, the trial court made some determination on the record that it would be appropriate, or inappropriate, for the defendant to proceed pro se. See Wayne v. State, 269 Ga. 36, 37 (2) (495 SE2d 34) (1998); McDowell v. State, 239 Ga. App. 667, 668-669 (1) (522 SE2d 44) (1999); Williams v. State, 183 Ga. App. 373, 374 (1) (358 SE2d 914) (1987); Davenport v. State, 216 Ga. App. 259 (454 SE2d 536) (1995). Thus, the issue before the reviewing courts in these cases was whether the trial courts adequately carried out their duty to determine that the defendants validly waived their right to counsel.

Not one of these cases holds, as the majority does now for the first time, that no error results from a trial court’s failure to determine, on the record, that the defendant has knowingly, voluntarily, and intelligently relinquished his right to counsel to assist him at trial. By doing so now, the majority nullifies our Supreme Court’s mandate in Clarke, supra.

The four factors used by the majority to find a valid waiver in this case are also flawed. First, the majority itself acknowledges, based upon Hamilton, supra, that the forms signed by Brooks were insufficient standing alone to demonstrate a valid waiver. However, based on the following three additional factors, the majority finds sufficient evidence of a valid waiver: Brooks was an experienced criminal defendant with three previous convictions, he allegedly had the assistance of an attorney during the trial, and Brooks, or someone aiding him, allegedly ordered a transcript of the trial that preserved his appellate rights. Since the last two factors are based on pure speculation and should be considered only when evaluating harmless error, the majority, in essence, finds a valid waiver of a defendant’s right to counsel simply because he has a criminal record.

III. The Proper Standard for Evaluating Harmless Error

The majority uses the wrong standard to evaluate whether the trial court’s error was harmless, finding any error by the trial court “harmless because it is highly unlikely defendant’s conviction was attributable to his decision to represent himself.” The proper analysis in a case involving constitutional error is whether the error was harmless beyond a reasonable doubt. See Eiland v. State, 246 Ga. 112, 116 (2) (268 SE2d 922) (1980). Moreover, the State bears the burden of proving the constitutional error harmless beyond a reasonable doubt. See State v. Hightower, 236 Ga. 58, 60 (222 SE2d 333) (1976).

The majority turns this analysis on its head, finding that the error is harmful only if Brooks, not the State who bears the burden of proof, can demonstrate through evidence in the record that a lawyer could have made a difference. In other words, Brooks must affirmatively assert and show harm in the record. This analysis is erroneous; the error is harmless only if the State shows, beyond a reasonable doubt, that it was in fact harmless.

TV. The Error Was Not Harmless Beyond a Reasonable Doubt

The record in this case does not show that the trial court’s error was harmless beyond a reasonable doubt. See Braswell, supra at 511; Hamilton, supra at 469 (1) (d); Black, supra; Strozier, supra.

Brooks’ cross-examination of the victim, the State’s chief witness, was ineffective and argumentative. After asking only three questions and drawing repeated rebukes from the trial court about the argumentative and improper nature of his questions, Brooks stated, “I don’t want to argue,” and asked no further questions. Unlike other cases in which we have found harmless error, the trial court did not appoint counsel to sit with Brooks at counsel table and provide advice and assistance throughout the trial. See, e.g., Rutledge v. State, 224 Ga. App. 666, 670-671 (3) (482 SE2d 403) (1997).

The fact that Brooks was charged with misdemeanor simple battery should not influence the majority’s analysis of whether the trial court’s error was harmless beyond a reasonable doubt. Persons charged with a misdemeanor offense for which they face imprisonment have the same constitutional right to counsel as those charged with a felony. See Keith v. State, 218 Ga. App. 729 (1) (463 SE2d 51) (1995). A person’s liberty is at stake with either offense, and, in this case, Brooks received the maximum sentence of one year in prison with no probation or suspension of his sentence.

Decided March 29, 2000.

Gilbert J Murrah, for appellant.

Ben Kirbo, Solicitor, for appellee.

Likewise, characterizing this case as a “he said/she said” credibility contest does not warrant a finding of harmless error beyond a reasonable doubt, particularly when the trial judge repeatedly rebukes the defendant in the presence of the jury. A case that turns on the credibility of two opposing witnesses is precisely the kind of case where cross-examination by a lawyer can make a difference. A lawyer can also objectively evaluate and advise whether it would be in the best interest of a defendant, who is one of those witnesses, to testify. In this case, the defendant did not have these benefits, and we should not equate his prior criminal convictions with the education and training of a licensed lawyer.

For all of the above reasons, the State failed to demonstrate that the trial court’s error was harmless beyond a reasonable doubt. As the U. S. Supreme Court recognized in Gideon v. Wainwright, 372 U. S. 335, 344-345 (83 SC 792, 9 LE2d 799) (1963):

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. ... [A layperson] lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

(Citation and punctuation omitted.)

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

       If the only evidence of Brooks’ knowing and voluntary election to proceed pro se was the “Rights and Information Form,” the waiver would be insufficient. The form does not go far enough. In order for the State to use a pretrial waiver form to show that a defendant has intelligently elected to represent himself after being advised of his right to counsel and the “dangers” of waiver, the form should outline those pertinent dangers: such as (1) the possibility of a jail sentence; (2) the rules of evidence will be enforced; (3) strategic decisions with regard to voir dire and the striking of jurors must be made by defendant; (4) strategic decisions as to the calling of witnesses and/or the right to testify must be made by defendant; and (5) issues must be properly preserved and transcribed in order to raise them on appeal. See Hamilton v. State, 233 Ga. App. 463, 468 (504 SE2d 236) (1998). A proper waiver form should contain the warnings, themselves, not just conclusions. Id. at 469. Also, ideally, the form should be signed by the defendant and by the trial court.

       Compare Hamilton v. State, supra (defendant was inexperienced with the legal system, legal representation, the consequences of conviction and had not consulted with an attorney prior to trial); and Braswell v. State, 240 Ga. App. 510 (523 SE2d 904) (1999) (defendant was illiterate, could not read the waiver form, had not stated she understood the form, and had not consulted with a defense attorney prior to the waiver of such services).

       Bar Rule 4-102: Standard 44 (lawyer shall not wilfully abandon or disregard a legal matter entrusted to him); 22 (lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client).

       The dissent, not Brooks, alleges prejudice in the fact that during Brooks’ brief cross-examination of his ex-girlfriend, the trial court was forced to admonish him three times not to argue with her about their children, which had nothing to do with the indicted offense. However, such admonitions do not provide a vehicle where a new trial can be obtained because the jury’s verdict was somehow “tainted” thereby. See, e.g., Mitchell v. State, 271 Ga. 242, 243-244 (4) (516 SE2d 782) (1999). The trial court’s comments to Brooks were appropriate and intimated no opinion with regard to the case or Brooks’ guilt or innocence. OCGA § 17-8-57. There is no evidence of record that the jury was influenced by anything other than the evidence and the charge that the court gave to them, as follows: “[i]n considering this case you must follow the law that I give you, apply this law to the evidence as you find it to be in this case and a true verdict reach. You must not be swayed by prejudice, sympathy, or any other sentiment for or against either the State or the Defendant.” Qualified jurors under oath are presumed to follow the instructions of the trial court. Gomillion v. State, 236 Ga. App. 14, 18-19 (512 SE2d 640) (1999). There is nothing about the trial court’s admonitions or Brooks’ self-representation that would overcome this presumption, especially since Brooks does not claim that it does.

       The fact that this was essentially a two-witness swearing contest makes puzzling, at best, the dissent’s assertion that a lawyer could have “objectively evaluated and advised” whether it would be in Brooks’ best interest to testify in this case.

       See also Pruitt v. State, 270 Ga. 745, 752-753 (514 SE2d 639) (1999); Gamble v. State, 235 Ga. App. 777, 782 (510 SE2d 69) (1998); Sanders v. State, 226 Ga. App. 650, 653 (487 SE2d 442) (1997); Boles v. State, 178 Ga. App. 508, 511 (343 SE2d 729) (1986).

       It does not mean a vague or arbitrary doubt, but is a doubt for which a reason can be given, arising from a consideration of the evidence, a lack of evidence, a conflict in the evidence, or any combination of these. See Baldwin v. State, supra at 664.

       We cannot presume that Brooks received assistance from an attorney throughout the trial based on a cryptic note from a court reporter (“Pro se defendant Dennis Brooks was assisted injury selection by Wayne Lambert, attorney at law”) and statements made by the attorney during voir dire. Lambert did not enter an appearance on Brooks’ behalf, and the evidence in the record shows that his representation was limited to voir dire, which occurred the day before the trial started. There is no indication in the record that the trial court appointed Lambert to assist Brooks throughout the trial or that Lambert actually did so.
      Likewise, there is no factual support for the assumption that “Brooks — or someone aiding him during the trial” requested that the entire proceeding be transcribed. The record shows only that it was transcribed. This could have occurred for numerous other reasons, such as habit of the trial court’s court reporter, the request of the trial court (OCGA § 5-6-41 (b)), or the request of the State, and we should not speculate about how it came to be transcribed.

       These rebukes by the court, which occurred in the presence of the jury, follow:
      Mr. Brooks, you’re starting to do exactly what I told you not to do. You can ask her questions. You cannot argue with her. You can elicit her answers. You cannot give answers. This is not your testimony time.
      Mr. Brooks - just a minute. Just a minute Ms. Faison. I’m not going to warn you again. I’m going to let you ask questions, but I’m not going to let you stand up there and say, “I didn’t do this.” You’re arguing with the witness. That is not proper questioning. Now listen to what I’m telling you. You can ask her all the questions you want to ask her, but you can’t stand there and argue with her. That is not permissible.
      If you don’t like her answer, ask her another question, but don’t stand up there and say, “I didn’t do that,” because you’re arguing then. We don’t do it that way.
      Is that a question or a statement?
      What’s the question? I heard a statement. I didn’t hear a question.

       We have previously reversed on this ground misdemeanor speeding convictions in a case where the defendant was sentenced to only two days in jail. Hamilton, supra.


text:
    A99A2353.
    KINMAN v. THE STATE.
    (533 SE2d 124)
   Smith, Judge.

Joseph B. Kinman was convicted of driving the wrong way on a one-way street and driving under the influence of alcohol. The trial court denied Kinman’s motion for new trial, and this appeal followed. Although Kinman contends that his motion to suppress certain evidence of his intoxication should have been granted, we find otherwise and affirm.

In ruling on a motion to suppress, the trial court sits as the trier of fact, and the court’s findings are analogous to a jury verdict and will not be disturbed when there is any evidence to support them. Temples v. State, 228 Ga. App. 228, 229 (491 SE2d 444) (1997). When reviewing a trial court’s ruling on a motion to suppress, the evidence must be construed most favorably toward the court’s findings unless those findings are clearly erroneous. Ledford v. State, 220 Ga. App. 272, 273 (469 SE2d 401) (1996).

When viewed in this light, the evidence showed that at about 11:00 p.m., Officer Jay Shirah saw two vehicles exit a bank parking lot and travel the wrong way down a one-way street. Maneuvering his patrol car, Shirah immediately managed to pull in front of the lead vehicle, belonging to Kinman, “to prevent an accident.” Shirah radioed for assistance, and within seconds Officers Lamar Johnson and David Gabriel responded. Shirah, a K-9 officer, told Johnson he wanted his help with a suspected DUI because he “wasn’t real familiar with DUI’s.” According to Johnson, Shirah explained that “he wasn’t real proficient with [DUIs] that he hadn’t done a great number of them in the last however long.” Johnson further testified, “[Shirah] asked me if I would, you know, take a look at the suspect and administer field sobriety.” Shirah turned the investigation totally over to Johnson, who sought and obtained Kinman’s permission to perform field sobriety testing.

Johnson testified that he noticed Kinman’s eyes appeared “red and glassy,” Kinman was “loud and mouthy,” and acted “belligerent.” Johnson also detected the smell of an alcoholic beverage emanating from Kinman and noted that he appeared disheveled. Based on Kin-man’s poor performance on standard field sobriety tests, Johnson arrested Kinman.

Kinman’s sole enumeration of error is that Johnson, the officer who conducted the field sobriety tests, lacked reasonable articulable suspicion to justify his doing so. He claims that the State failed to offer evidence at the suppression hearing that Officer Shirah possessed an adequate basis for suspecting that Kinman was impaired.

In reviewing a trial court’s decision on a motion to suppress, all relevant evidence of record, including trial testimony as well as the testimony offered at the suppression hearing, may be considered. Temples, supra; see Sanders v. State, 235 Ga. 425, 431-432 (II) (219 SE2d 768) (1975). As Kinman correctly points out, Shirah did not specifically testify at the suppression hearing that he suspected Kin-man was intoxicated. Johnson, however, testified that Shirah told him he wanted help with a suspected DUI.

Decided March 29, 2000.

Stanley R. Durden, for appellant.

An officer may conduct a brief investigatory stop of a vehicle when such a stop is justified by specific facts sufficient to give rise to a suspicion of criminal conduct. Evans v. State, 216 Ga. App. 21, 23 (2) (453 SE2d 100) (1995). Because Shirah personally observed Kin-man committing a traffic offense, he was entitled to stop and investigate further. Temples, supra at 231. The evidence is uncontradicted that when the initial detaining officer suspected possible alcohol impairment, he requested and obtained the assistance of another officer who had more experience in conducting DUI field evaluations. In circumstances like these, a police officer may conduct a general on-the-scene investigation and briefly detain a motorist to administer field sobriety tests. State v. Peters, 222 Ga. App. 484 (474 SE2d 623) (1996). Since specific, reasonable, articulable facts existed that justified the investigatory stop of the vehicle, Johnson had every right to complete the investigation already lawfully begun. Lankford v. State, 204 Ga. App. 405, 407 (2) (419 SE2d 498) (1992) (full concurrence as to Division 2). Moreover, after Johnson observed Kinman’s condition, he had reasonable grounds to conduct further inquiry to determine whether Kinman had been driving under the influence of alcohol. Daugherty v. State, 182 Ga. App. 730, 731 (2) (356 SE2d 902) (1987); see Sutton v. State, 223 Ga. App. 721, 723 (1) (478 SE2d 910) (1996). Since the record contains some evidence to support the trial court’s decision, the test results were properly admitted. Ledford, supra at 274 (1).

Judgment affirmed.

Pope, P. J., concurs. Miller, J., concurs specially.

Miller, Judge,

concurring specially.

I concur with the result reached by the majority, but for slightly different reasons. Because the observed traffic violation of going the wrong way on a one-way street was so dangerous and blatant, the initial detaining officer had a reasonable, articulable suspicion that the driver might be intoxicated and so was authorized to briefly stop the motorist to conduct the field sobriety tests. This justified his asking the second officer, Johnson, to conduct those tests. The observation of Kinman’s red and glassy eyes and his belligerent, loud behavior took place after Johnson had begun the field sobriety tests and thus could not contribute to or be considered as a basis for the initial articulable suspicion justifying the tests.

Kenneth W. Mauldin, Solicitor, Phillip C. Griffith, Assistant Solicitor, for appellee.


author: Miller, Judge. Smith, Judge,

text:
    A99A2355.
    HUTCHINS v. THE STATE.
    (533 SE2d 107)
   Miller, Judge.

Having pled guilty to driving under the influence, James Hutch-ins was sentenced to 12 months in the county jail, “[pjrovided, that after the service of 180 days in confinement, the balance shall be probated.” The sheriff awarded him 60 days credit for good time and released him following 120 days confinement. After serving probation for 185 days, Hutchins moved to have his sentence terminated, which the court denied on the ground that the 60 days of “good-time” credit had to be served on probation. The question on appeal is whether a sentence which orders a defendant to serve part of the sentence in jail with the balance probated can require that “good-time” credit resulting in an early release from confinement be served on probation. We hold it cannot and reverse.

1. The State’s complaints about the imprecise wording of Hutch-ins’ enumeration of error are without merit. The enumeration adequately describes the ruling appealed.

2. Johns v. State is dispositive. The defendant in Johns was sentenced to ten years (two to serve, eight on probation). The judge further ordered that any “good-time” credit be served on probation. Holding this was improper, Johns referred to former Code Ann. § 77-320.1 (c), which directed that a prisoner be released at the expiration of his sentence less the time earned as “earned time” allowance. Johns explained that a sentence of confinement is fully served at the time the custodian releases the prisoner. “Any attempt by a court to impose its will over the Executive Department as to what constitutes service of a period of confinement would be a nullity and constitute an exercise of power granted exclusively to the Executive. [Cits.]” Beyond violating the Georgia Constitution, Johns held that imposing additional probation as a result of an early release date contravened the intent of the statutory language directing that “earned time” credit be deducted from a prisoner’s sentence.

OCGA § 42-4-7 (b) (3) employs almost identical language: “An inmate sentenced to confinement as a county inmate shall be released at the expiration of his or her sentence less the time deducted for good-time allowances.” Based on Johns, we hold that this language prohibits a judge from imposing probation on any time by which confinement is shortened due to good-time credit. The legal consequence of that credit is that the related portion of the original sentence has been served. Because our holding is based on this statute, the State’s attempt to distinguish the separation of powers clause of the Georgia Constitution is moot.

3. In the same ruling the court stated that the start date of the sentence was July 7, 1998. But since the State stipulated that as of October 10, 1998, Hutchins had served 120 days of the 180 days sentenced, the start date necessarily was no later than June 12, 1998. The period of confinement was served as of October 10, and the 185 days of lawful probation expired on April 13,1999, the day before the filing of Hutchins’ motion to terminate. Thus, the motion to terminate should have been granted.

Judgment reversed.

Pope, P. J., Blackburn, P. J., Ruffin and Eldridge, JJ, concur. Andrews, P. J., and Smith, J., dissent.

Smith, Judge,

dissenting.

I respectfully dissent.

In my view, the majority inappropriately applies the decision of Johns v. State, 160 Ga. App. 535 (287 SE2d 617) (1981), for several reasons. First, Johns addressed multiple felony sentences to a term of years in the state penitentiary, followed by a term of probation. This court held that the prison sentence was fully served at the time of Johns’s release by the department of offender rehabilitation under “good time” rules and that “[a]ny attempt by a court to impose its will over the Executive Department as to what constitutes service of a period of confinement would be a nullity and constitute an exercise of power granted exclusively to the Executive. [Cits.]” Id. at 536. In contrast, here we consider a relatively brief misdemeanor sentence to be served in the county jail, in which the trial court balances the need for confinement and the need for continued supervision by the court, with the assistance of the probation department. Because of the different considerations inherent in the administration of misdemeanor sentences through county jails and probation departments, applying Johns in this case could interfere significantly with the ability of trial courts in this state to fashion effective misdemeanor sentences.

Decided March 29, 2000

Closson, Bass & Tomberlin, J. Michael Bass, for appellant.

Richard W. Shelton, Solicitor, for appellee.

Second, Johns was sentenced on each of three counts to “two years in the penitentiary and eight years on probation.” Johns, supra at 535. In contrast, the trial court here sentenced Hutchins to “confinement for a period of 12 months in the Lowndes County Jail. . . . Provided, that after the service of 180 days in confinement, the balance shall be probated.” (Emphasis supplied.) The distinction in the wording of these sentences is significant. Here, the trial court made a determination that Hutchins required the supervision of the trial court in some form for 12 months, and we should not interfere with that determination.

For these reasons, I respectfully dissent.

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

       Cf. Felix v. State, 271 Ga. 534, 539-540 (523 SE2d 1) (1999).

       160 Ga. App. 535 (287 SE2d 617) (1981).

        Johns used the terms “good time” and “earned time” interchangeably. Id. at 536.

       Id.

       Id.; see Stephens v. State, 207 Ga. App. 645, 647-648 (2) (428 SE2d 661) (1993).

        Johns, supra, 160 Ga. App. at 537; see Davis v. State, 181 Ga. App. 498 (1) (353 SE2d 7) (1987) (court could not withhold good-time credit on grounds fines were unpaid).

       OCGA § 42-4-7 (b) (1) expressly authorizes a county sheriff to award good-time allowances based on institutional behavior.

       Cf. Bldg. Auth. of Fulton County v. State of Ga., 253 Ga. 242, 247 (5) (321 SE2d 97) (1984) (separation of powers clause applies to state and not counties); see generally Ga. Const, of 1983, Art. I, Sec. II, Par. III.


text:
    A99A2360.
    LEE et al. v. ENVIRONMENTAL PEST & TERMITE CONTROL, INC.
    (533 SE2d 116)
   Pope, Presiding Judge.

Environmental Pest & Termite Control, Inc. filed a motion for contempt against Darrell W. Lee, Dell Walker and Future Pest Control, Inc. d/b/a Future Termite & Pest Control. Environmental claimed that Lee, Walker and Future Pest Control had violated an interlocutory injunction, issued on July 22, 1998, which prohibited Lee and Future Pest Control from doing business with certain present and past customers of Environmental. The court found Lee and Future Pest Control in violation of the interlocutory injunction and fined them $5,000. Lee and Future Pest Control appeal, claiming that the evidence was insufficient to find Lee and Future Pest Control in either civil or criminal contempt and that the trial court imposed a sanction for criminal contempt greater than that allowed by law. We agree that the fine imposed on Lee and Future Pest Control is not authorized by law, reverse the judgment as to the fine only and remand the case with direction.

1. The threshold question is whether the trial court’s contempt order found Lee and Future Pest Control to be in either civil or criminal contempt. “The distinction between the two is that criminal contempt imposes unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order.” (Citation and punctuation omitted.) Grantham v. Universal Tax Systems, 217 Ga. App. 676, 677-678 (2) (458 SE2d 870) (1995). The trial court ordered that Lee and Future Pest Control pay $5,000 to Environmental as damages for their violation of the court’s previous order. The fine is not conditional upon future compliance and is imposed for prior acts. Therefore, the trial court found Lee and Future Pest Control guilty of criminal contempt.

2. Lee and Future Pest Control claim that there was insufficient evidence to support the trial court’s finding of criminal contempt. The appellate standard of review of a criminal contempt conviction is whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Bell v. Aprea, 228 Ga. App. 569, 570-571 (492 SE2d 247) (1997). In order to find contempt, there needs to be a showing of wilful disregard or disobedience of the order or command of the court. See In re Gouge, 206 Ga. App. 462, 463-464 (1) (425 SE2d 882) (1992).

The trial court’s interlocutory injunction enjoined Lee and Future Pest Control from soliciting, servicing or otherwise doing any termite or pest control business with any customers of Environmental with which Lee had contact while employed by Environmental. Evidence shows that businesses which Lee could not service under the injunction would contact Lee who would in turn arrange for James Edmondson, a registered pest control technician, to perform the work. The work was not simply referred to Edmondson, but was an arrangement designed to circumvent the court’s order. And Edmondson saw Lee personally provide pest pretreatment to a subdivision project sponsored by builders that he was ordered not to service under the injunction. Lee would also prepare termite inspection letters for builders with which he was forbidden to do business and arrange for them to be signed by another person. There is also evidence that Lee forged another’s signature on a soil treatment record form he had completed for work that Future Pest Control did for R&D Construction, which is listed by name in the court’s injunction. We find this evidence sufficient for a rational trier of fact to find beyond a reasonable doubt that Lee and Future Pest Control had intentionally violated the terms of the court’s injunction.

3. Under OCGA § 15-6-8 (5), the superior courts have the power to punish contempt by fines not exceeding $500 and by imprisonment not exceeding 20 days. Even though contempt orders generally do not have to have specific findings of fact and conclusions of law, if the punishment is in excess of the fine or term of imprisonment allowed under the statute, then there must be sufficient findings of fact to support more than one contemptuous act. Gay v. Gay, 268 Ga. 106-107 (1) (485 SE2d 187) (1997); see also Grantham, 217 Ga. App. at 677-678. The trial court ordered Lee and Future Pest Control to pay a $5,000 fine but did not find more than one specific violation of its injunction. Therefore, any fine exceeding $500 was not in accord with OCGA § 15-6-8 (5). We reverse the judgment as to the amount of the fine only and remand the case for entry of an order consistent with this opinion.

Decided March 29, 2000.

Albert B. Wallace, Stephen B. Wallace II, Thomas J. Smith, Jr., for appellants.

Decker & Hallman, William W. Briggs, for appellee.

4. In their third enumeration of error, Lee and Future Pest Control contend that the evidence was not sufficient to support a finding of civil contempt. In view of Division 1 of this opinion, this issue is moot.

Judgment affirmed in part and reversed in part and case remanded with direction.

Smith and Miller, JJ., concur.


author: Blackburn, Presiding Judge.

text:
    A00A0816.
    HERRINGTON v. THE STATE.
    (533 SE2d 133)
   Blackburn, Presiding Judge.

Following a jury trial, Clifford Maurice Herrington appeals his convictions of two counts of armed robbery. Herrington contends that: (1) the bailiff had improper communication with the jury; (2) the trial court expressed an opinion about his guilt in front of the jury; (3) the trial court failed to charge on the law of confessions; and (4) he was improperly sentenced as a recidivist.

1. For the first time on appeal, Herrington contends that the bailiff had improper communication with the jury. Herrington bases his contention on a statement made by the bailiff concerning a note sent from the jury.

The record reveals that after deliberations began, the jury sent a note to the trial court inquiring: ‘What happens when the jury cannot come to a unanimous decision?” Because the indictment involved multiple counts, the trial court responded with a note stating: “First, let me inquire as to whether you have reached a verdict on any of the counts, one, two, three, four or five, or whether you are hung up on all. Do not tell us however what your verdict is or what count it is.” The jury returned a note, which the trial court described: “It’s a lot of scribbling. ‘No; verdict on’ looks like line 1 and then a circle around it, and then written again, ‘No; verdict on (o-n-e) count.’ ” The trial court and counsel engaged in a discussion as to the meaning of the jury’s note during which the trial court acknowledged its confusion. The bailiff noted: “I tried to tell them that at first.”

Herrington contends that the bailiff’s statement indicates that he had improper communication with the jury. This issue was raised neither at the time it occurred nor in Herrington’s motion for new trial. “[Objections to irregularities must ordinarily be made at a time when they may be remedied, or they are waived.” State v. Williamson, 247 Ga. 685, 686 (279 SE2d 203) (1981). Consequently, Herrington has waived any error by failing to timely raise it.

2. In his second enumeration of error, Herrington contends that the trial court erred by expressing an opinion about his guilt. See OCGA § 17-8-57. However, Herrington failed to preserve any error regarding the trial court’s comments by failing to raise any contemporaneous objection with the trial court. See Wilson v. State, 268 Ga. 527, 529-530 (5) (491 SE2d 47) (1997) (“[d]efendant waived the right to assert a violation of OCGA § 17-8-57 because he did not contemporaneously object or move for a mistrial on that ground”).

3. Herrington asserts that the trial court erred in failing to charge on the law of confessions. OCGA § 24-3-53 provides: “All admissions shall be scanned with care, and confessions of guilt shall be received with great caution. A confession alone, uncorroborated by any other evidence, shall not justify a conviction.” However, in order for a defendant’s statement to be considered a confession, it must include all elements of the offense charged. In the present case, Herrington admitted only to robbing convenience stores on five occasions. He did not admit to committing the armed robberies of which he was indicted.

[Herrington’s] argument fails to take into account the difference between an admission and a confession. In the former only one or more facts entering into the criminal act are admitted, while in the latter the entire criminal act is confessed. The reason confessions must be corroborated is to ameliorate the danger of a coerced confession or the confession of a mentally unbalanced person providing the entire proof used to convict a defendant. Admissions, on the other hand, do not admit every element of the offense, leaving on the State the burden of proving some elements of the offense by evidence other than the admissions. That evidence need not corroborate the admissions, but must provide proof of those elements of the offense not admitted. Since [Herrington] did not admit every essential element of the charged offense, the statement constituted an admission, not a confession. There is substantial difference between admissions and confessions. Admissions relate to any fact material to the issue, and are to be scanned with care and considered, with any other evidence, for what they are worth. It is not declared or required that they be corroborated by other evidence in the case, as are confessions of the crime. That long-standing statement of the law remains valid today. Because there was no confession in this case, there was no requirement of specific corroboration of [Herrington’s] admissions and no requirement that the jury be charged on the issue of confessions.

(Citations and punctuation omitted.) Lowe v. State, 267 Ga. 180, 181-182 (4) (476 SE2d 583) (1996).

. Even if viewed as a confession, Herrington’s statement was sufficiently corroborated so that the requested charge was not required because it was not adjusted to the facts. Cf. Fleming v. State, 269 Ga. 245, 247 (2) (497 SE2d 211) (1998) (“it is not error to fail to give a charge on corroboration of accomplices where the State relies upon other evidence”) (punctuation omitted). The trial court did not err in failing to charge the jury on confessions.

4. In his final enumeration of error, Herrington contends that he was improperly sentenced as a recidivist because the State’s notice of intent to seek recidivist punishment, pursuant to OCGA §§ 17-10-2 and 17-10-7 (b), did not include an attachment constituting evidence of the prior serious violent felony. The record reveals that Herrington received notice of intent to introduce evidence of similar transactions, attached to which was a copy of his previous conviction for armed robbery. Herrington also received a notice of intent to seek recidivist punishment, although a copy of the previous conviction was not attached to this notice.

Under circumstances substantially similar to these, we have concluded that the defendant received adequate notice that he faced treatment as a recidivist. See Moss v. State, 206 Ga. App. 310, 312 (5) (425 SE2d 386) (1992). Compare Armstrong v. State, 264 Ga. 237, 238 (2) (442 SE2d 759) (1994) (notice of the intent to present similar transaction evidence alone is not sufficient to satisfy notice requirements of OCGA § 17-10-2 for recidivist punishment — but notice of prior convictions as similar transactions coupled with oral notice of intent to seek recidivist punishment sufficient). Herrington received sufficient notice of the State’s intent to seek recidivist punishment.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

Decided March 29, 2000.

Peter D. Johnson, for appellant.

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