author: Birdsong, Presiding Judge.

text:
    A96A2079.
    BISHOP v. THE STATE.
    (477 SE2d 422)
   Birdsong, Presiding Judge.

John Bishop appeals his conviction of one count of theft by deception (OCGA § 16-8-3) and two counts of attempted theft by deception (OCGA §§ 16-4-1; 16-8-3) arising from an averred check “kiting” scheme in which he participated in conjunction with two accomplices, Elizabeth Hardy and Arthur L. Hardy. Appellant enumerates three errors. Held:

1. Judicial notice is taken of the record and trial transcript in Hardy v. State (Case No. A96A1290). Rogers v. State, 195 Ga. App. 446 (1) (394 SE2d 116).

2. On appeal appellant contends the trial court erred by refusing to grant a separate trial for appellant. Although á motion to sever was made by Elizabeth and Arthur Hardy at trial, appellant Bishop did not join in that motion and did not, either before or during trial, tender a motion to sever on his own behalf. See generally Johnson v. State, 256 Ga. 588, 590 (2) (351 SE2d 202). Examination of the record in this case and the record and transcript in Case No. A96A1290 reveals no basis for the trial court to grant sua sponte a motion to sever on behalf of appellant Bishop; further, the trial court has no legal duty to grant a motion to sever sua sponte during trial. Compare Hill v. State, 239 Ga. 278, 280 (3) (236 SE2d 626) with Worley v. State, 237 Ga. 521 (1) (228 SE2d 895) and Fain v. State, 165 Ga. App. 188, 191 (7) (b) (300 SE2d 197).

Additionally, the only salient argument advanced by appellant in support of this enumeration of error is that “a rational jury would not have convicted the defendant but for . . . the highly prejudicial act of not severing the defendants.” Appellant has failed to make a clear showing either of prejudice or a consequent denial of due process. “ ‘The defendant seeking severance must do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.’ [Cit.]” Johnson v. State, supra at 590 (2). Appellant’s first enumeration of error is without merit.

3. Appellant next contends that the trial court erred by refusing to give a directed verdict in favor of appellant since there was not an issue for the jury to decide. “When an enumeration of error is based, as in this case, upon the overruling of a motion for directed verdict of acquittal grounded at trial on insufficiency of the evidence, the proper test for an appellate court to apply is ‘the beyond a reasonable doubt test’ as expressed in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).” Williams v. State, 199 Ga. App. 566, 567 (1) (405 SE2d 716). Appellant’s second enumeration is without merit. See Division 4.

4. Appellant’s final enumeration is that the verdict is not supported by the evidence.

OCGA § 16-2-21 provides “[a]ny party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that he was a party thereto, although the person claimed to have directly committed the crime has not been prosecuted or convicted, has been convicted of a different crime or degree of crime, or is not amenable to justice or has been acquitted.” The statutory requirements as to when a person is a party, to a crime is promulgated in OCGA § 16-2-20. OCGA § 16-2-20 (a) provides that “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16-2-20 (b) (3) provides that a person is concerned in the commission of a crime only if, inter alia, he “[ijntentionally aids or abets in the commission of the crime.” There exists evidence of record from which a rational factfinder could conclude, under the standards of Jackson v. Virginia, supra, that appellant was a “party” to the crimes of which he was convicted.

Appellant contends that his conviction of theft by deception and attempted theft by deception cannot stand because the bank ultimately sustained no monetary loss. OCGA § 16-8-3 (a) provides that “[a] person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.” “ ‘Deceitful means’ and ‘artful practice’ do not. . . include falsity as to matters having no pecuniary significance.” OCGA § 16-8-3 (c). However, there exists no requirement of proof of pecuniary loss under the provisions of OCGA § 16-8-3 to sustain a conviction for theft by deception. Harrell v. State, 192 Ga. App. 876, 877 (2) (386 SE2d 676); accord Arnold v. State, 210 Ga. App. 843, 848-849 (4) (437 SE2d 844). Appellant also asserts that if the bank had followed its own procedures of holding out-of-town checks the account of appellant would not have been overdrawn. This contention is unpersuasive. “The fact that the party alleged to have been defrauded did not exercise reasonable diligence in preventing the fraud affords no defense to the accused.” (Citations and punctuation omitted.) Id. at 847, 849, n. 2, citing Suggs v. State, 69 Ga. App. 383, 384, hn. 4 (25 SE2d 532). These same legal principles likewise apply to the offenses of attempted theft by deception.

Decided October 22, 1996.

Gregory S. Dickson, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

Appellant’s other contentions in support of this enumeration also are unpersuasive. On appeal the evidence must be viewed in the light most favorable to support the verdict, and. appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). To support the verdict, circumstantial evidence must exclude only reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Under this rule, the State is not required to remove every possibility of innocence of the crime charged. Ross v. State, 214 Ga. App. 697, 698 (448 SE2d 769). We conclude that the jury rationally could have found that the admissible evidence of record excluded every reasonable hypothesis except that of the defendant’s guilt as to the offenses of which he was convicted; the jury was authorized by the evidence presented to exclude other possible hypotheses as unreasonable (id. at 699). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which convicted. Jackson v. Virginia, supra.

Judgment affirmed.

Beasley, C. J, and Blackburn, J., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A96A2386.
    COTTON v. THE STATE.
    (477 SE2d 425)
   Andrews, Judge.

Hubbard Lee Cotton appeals from the judgment of conviction entered on a jury verdict finding him guilty of robbery by sudden snatching and possession of cocaine.

1. There is no merit to Cotton’s claim that the evidence was insufficient to support the convictions.

The State presented testimony from a bank teller who identified Cotton as the man who approached her in the bank, handed her a note telling her to give him money, then snatched $3,646 of the bank’s money from the teller and left. The police officers who arrested Cotton shortly after the robbery testified that they chased and apprehended Cotton and found most of the stolen money stuffed in Cotton’s sock and hidden under a nearby bush. The State also introduced a statement Cotton gave to police officers in which he admitted robbing the bank.

As to the possession of cocaine charge, after Cotton was taken from the rear seat area of the police car where he was placed upon arrest, police found a small plastic bag containing a white chunky substance under the rear seat. The substance was later identified by the state crime lab as less than one gram of crack cocaine. The police officer who arrested Cotton and drove the car testified that, prior to the start of his shift, he removed the rear seat of the car and searched the rear seat area and confirmed that there were no items or substances of any kind in that area at the start of the shift. The officer testified that Cotton was the first person placed in the rear seat area of the car during the shift. Prior to being placed in the rear seat area of the car, Cotton was handcuffed and given a cursory pat-down search for weapons, but he was not thoroughly searched for smaller items. Immediately after Cotton was removed from the rear seat area of the car, the officer again removed the rear seat of the car and found the bag containing the cocaine under the rear seat. The officer testified that the cursory pat-down search of Cotton would not have revealed such a small amount of cocaine concealed on his person and that it was possible for Cotton, while handcuffed, to remove the bag of cocaine from his person and stuff it under the rear seat. This evidence was sufficient to allow the jury to conclude that the cocaine found under the rear seat was cocaine Cotton had on his person when he was arrested.

The evidence was sufficient for the jury to conclude beyond a reasonable doubt that Cotton was guilty of both charged offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Cotton claims the trial court violated his Sixth Amendment right to counsel by relieving his court-appointed attorney during the course of the trial and forcing him to proceed pro se.

During the second day of the two-day trial, Cotton informed the trial court that he was dissatisfied with the services of his court-appointed attorney and no longer wanted to be represented by him. The only reason given by Cotton was that he was dissatisfied with the fact that, prior to trial, his court-appointed attorney had discussed with him the possibility of a negotiated guilty plea. The trial court asked Cotton if he wanted to represent himself, and Cotton replied that he did not want to represent himself but wanted to get another attorney. The trial court refused to appoint Cotton another attorney and refused Cotton’s request that he be given time to hire another attorney. The trial court informed Cotton that there would be no continuance, that the trial would continue, and that he could either be represented by his court-appointed attorney, or he could proceed pro se. The trial court also informed Cotton that he would be taking a serious risk by proceeding without an attorney. Cotton insisted that he would not continue with the court-appointed attorney and that he wanted another attorney and would not go on with the trial without an attorney. At that point, Cotton’s court-appointed attorney moved the trial court to be relieved from representing Cotton. The trial court granted the motion, but instructed the court-appointed attorney to stay in the courtroom.

The trial resumed, and the State presented two additional witnesses and rested. When the trial court asked Cotton if he had any objection to documents tendered by the State during direct examination or wanted to conduct cross-examination, Cotton stated that he was not an attorney and refused to participate. After each witness testified, the trial court asked Cotton if he would like for the court-appointed attorney, who remained in' the courtroom, to cross-examine the witness. Cotton refused stating that he would not allow the court-appointed attorney to represent him. After the State rested, the trial court asked Cotton if he wanted to call any witnesses or testify in his own behalf. After Cotton refused to respond to the trial court’s questions, the trial court announced that the evidence was closed. Cotton refused to give a closing argument in his own behalf and refused to allow the court-appointed attorney to give one for him.

The trial court did nothing to deprive Cotton of his Sixth Amendment right to counsel. Although Cotton had a right to be represented by counsel, he did not have an absolute right to discharge his appointed counsel in mid-trial and demand that the trial court either appoint him another attorney or allow him to hire another attorney. Williams v. State, 169 Ga. App. 812, 815 (315 SE2d 42) (1984). There was no evidence of any problem that prevented appointed counsel from presenting an adequate defense on behalf of Cotton. The essential aim of the Sixth Amendment is to guarantee effective assistance of counsel, not to guarantee a defendant preferred counsel or counsel with whom a “meaningful relationship” can be established. Wheat v. United States, 486 U. S. 153, 159 (108 SC 1692, 100 LE2d 140) (1988); Morris v. Slappy, 461 U. S. 1, 13-14 (103 SC 1610, 75 LE2d 610) (1983).

Decided October 22, 1996.

The record does not support Cotton’s claim that the trial court deprived him of counsel or forced him to proceed pro se. Rather, the evidence shows that Cotton consciously engaged in an effort to delay his trial by attempting, without any justifiable reason, to obtain substitute counsel in mid-trial. This amounted to a waiver by Cotton of his right to be represented by counsel. Williams, supra at 815. The trial court did not abuse its discretion in refusing to allow Cotton to substitute counsel and in requiring the trial to proceed with the continuing offer of assistance from appointed counsel. Id. Since Cotton did not elect to proceed pro se, but refused to represent himself and demanded substitute counsel, there was no necessity for the trial court to warn Cotton of the dangers and disadvantages of self-representation. Id. at 814-815.

3. Cotton claims the trial court should have excluded his statement admitting the robbery because it was involuntarily made as the result of promises of benefit made to him by the police. See OCGA § 24-3-50. At the hearing held to determine the voluntariness of the statement, the police officers who took the statement testified that they made no promises of any kind to Cotton. Cotton testified at the hearing that the police officers promised him unspecified help at trial if he would give them the statement. On cross-examination, Cotton testified that nothing said to him by the officers induced him to make the statement proffered by the State because he never made any such statement. The trial court’s factual determination that the statement was voluntarily given and not induced by promises was supported by a preponderance of the credible evidence, was not clearly erroneous, and, therefore, will not be disturbed on appeal. Autry v. State, 210 Ga. App. 150, 151 (435 SE2d 512) (1993). The trial did not err by admitting the statement.

4. There is no support in the record for Cotton’s claim that the jury was allowed to see him in handcuffs and shackles. Accordingly, there is no support for the claim that this had a prejudicial effect on the jury requiring a new trial. See Rhodes v. State, 264 Ga. 123, 124 (441 SE2d 748) (1994).

Judgment affirmed.

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

Sharon J. S. Whitwell, for appellant.

Tommy K. Floyd, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.


author: Andrews, Judge. Pope, Presiding Judge,

text:
    A96A0767.
    BLUE CROSS & BLUE SHIELD OF GEORGIA, INC. v. BENNETT.
    (477 SE2d 442)
   Andrews, Judge.

Mariana Bennett sued Blue Cross & Blue Shield of Georgia, Inc. (Blue Cross), the administrator of her health insurance policy, seeking to recover a bad faith penalty and attorney fees under OCGA § 33-4-6 for Blue Cross’s failure to pay a covered loss within 60 days after she demanded payment of benefits. We granted Blue Cross’s application for an interlocutory appeal from the trial court’s denial of its motion for summary judgment.

Bennett was covered by a health insurance plan administered by Blue Cross when she incurred the medical expenses at issue on or about August 25, 1992, at St. Joseph’s Hospital. Prior to incurring the medical expenses, Bennett executed an assignment of benefits document which stated: “I hereby irrevocably assign and transfer to St. Joseph’s Hospital, Inc. all benefits and payments now due and payable or to become due and payable to me under any insurance policy . . . for this or any other period of hospitalization and related outpatient care.” Thereafter, from September 1992 through March 1994 Bennett made various demands for payment from Blue Cross for the benefits due under her health insurance policy for the incurred medical expenses, but Blue Cross refused payment. On October 11, 1994, Bennett filed the present suit against Blue Cross seeking payment of the benefits plus a bad faith penalty and attorney fees under OCGA § 33-4-6. Four days prior to the date the suit was filed, St. Joseph’s Hospital reassigned Bennett the right to receive the benefits due under the Blue Cross policy. While the suit was pending, Blue Cross ■tendered payment of the benefits at issue on April 6, 1995.

Because the document executed by Bennett constituted an assignment of contractual benefits under the Blue Cross policy to the hospital, it transferred the cause of action for the benefits to the hospital and divested Bennett of the right to bring an action against Blue Cross under the insurance policy. Allianz Life Ins. Co. &c. v. Riedl, 264 Ga. 395, 396-398 (444 SE2d 736) (1994). Moreover, in the absence of any contrary intention, the assignment also transferred to the hospital all ancillary remedies and rights of action which Bennett had or would have had as incidents to the cause of action for the benefits. Id. at 397. Accordingly, until Bennett obtained the reassignment of the cause of action for the benefits four days prior to bringing the present action, she had no right, title, or interest in the assigned benefits and no right to demand that such benefits due under the policy be paid to her or to the hospital. See id. at 398.

The language of OCGA § 33-4-6 does not require a different conclusion. Under OCGA § 33-4-6, an insurer is subject to imposition of a penalty and attorney fees if it refuses in bad faith to pay a covered loss “within 60 days after a demand has been made by the holder of the policy. . . .” (Emphasis supplied.) After Bennett assigned the right to the benefits at issue to St. Joseph’s Hospital, the hospital, in effect, became the holder of the policy for all purposes related to enforcing the right to the assigned benefits under the policy, including the right to demand payment of the assigned benefits under OCGA § 33-4-6. After the assignment, Bennett remained the holder of the policy for all other purposes. Thus, until the hospital reassigned the benefits to Bennett, it was the holder of the policy under OCGA § 33-4-6 for the purpose of demanding payment of the assigned benefits by Blue Cross. Although it is also possible to construe OCGA § 33-4-6 as referring exclusively to Bennett as the named holder of the insurance policy, a construction of the statute which recognizes the assignee of benefits as the holder of the policy is preferable under the present facts because it conforms the operation of the statute to the common law applicable to assignments. Riedl, supra at 397-398; Intl. Indem. Co. v. Bakco Acceptance, 172 Ga. App. 28, 32 (322 SE2d 78) (1984).

Not until the right to the assigned benefits was reassigned to Bennett four days before filing suit against Blue Cross did she become entitled to demand payment of the benefits under OCGA § 33-4-6. Earlier demands for payment by Bennett made when the right to benefits was assigned to the hospital were ineffective to invoke the provisions of OCGA § 33-4-6. Under OCGA § 33-4-6, Bennett was required to demand payment at least 60 days before filing suit for a bad faith penalty and attorney fees. Guarantee Reserve Life Ins. Co. &c. v. Norris, 219 Ga. 573 (134 SE2d 774) (1964). It follows that, since Bennett filed suit only four days after the right to the benefits was reassigned to her, no proper demand for payment was made under OCGA § 33-4-6, and Blue Cross was not liable for a bad faith penalty and attorney fees. Since it is undisputed that Blue Cross tendered the full amount of the benefits due under the policy after the suit was filed, no claim for payment of benefits remains, and Blue Cross was entitled to summary judgmeht on Bennett’s remaining claim for damages under OCGA § 33-4-6.

Judgment reversed.

Senior Appellate Judge Harold R. Banke concurs. Pope, P. J, concurs specially.

Pope, Presiding Judge,

concurring specially.

I agree that Bennett cannot recover bad faith penalties and attorney fees under OCGA § 33-4-6, but my reasoning differs from that of the majority, particularly with respect to footnote 1 and the effect of Allianz Life Ins. Co. v. Riedl, 264 Ga. 395, 397-398 (2) (444 SE2d 736) (1994) on this case.

From September 1992 through March 1994, Bennett made demands for payment of benefits from defendant insurer. The insurer refused these demands, since Bennett had assigned her benefits to the medical care provider. In Riedl, decided June 27, 1994, the Supreme Court validated the insurer’s position, holding that “an assignment of benefits by an insured does divest the insured of the right to bring an action against the insurer.” 264 Ga. at 397 (2).

In its first footnote, the majority states that Riedl overruled clear law to the contrary, but holds that Riedl nonetheless controls this case because it was the law by the time Bennett’s lawsuit was filed — even though it was not the law at the time the demands were made and refused. With this holding I cannot agree. Rather, if the insurer had been contravening clear, existing law at the time it refused Bennett’s demands, it should be subject to bad faith penalties and attorney fees under OCGA § 33-4-6, regardless of a subsequent change of law in its favor.

The Supreme Court in Riedl did not overrule .clear law that an assignor of benefits retained the right to demand those benefits, however. Instead, it applied already existing principles of assignment law to the specific context of the assignment of medical benefits; and in doing so it noted that the law in this area.had previously been unclear. 264 Ga. at 397.

Decided October 23, 1996.

Inglesby, Falligant, Horne, Courington & Nash, Sam P. Inglesby, Jr., James F. Shehane TV, for appellant.

Middleton, Mixson, Orr & Adams, Richard H. Middleton, Jr., Mark A. Tate, for appellee.

Thus, the insurer was not contravening clear, existing law at the time it refused Bennett’s demands. As an insurer is not liable for penalties and fees under OCGA § 33-4-6 where there is a doubtful question of law, see Fed. Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763, 769 (4) (417 SE2d 671) (1992), I therefore agree that the denial of insurer’s motion for summary judgment should be reversed.

        Riedl, supra, was decided on June 27, 1994, and overruled existing case law holding that Bennett’s assignment of benefits did not divest her of a cause of action for the benefits. Id. at 396-398. Although Riedl was decided after Bennett’s assignment of benefits in August 1992 and after her demands to Blue Cross for payment of benefits from September 1992 through March 1994, the June 1994 decision in Riedl was rendered over three months prior to Bennett’s October 1994 suit against Blue Cross. Accordingly, Bennett was charged with notice of the new rule established in Riedl when she filed suit, and, in fact, she obtained a reassignment of benefits from St. Joseph’s Hospital prior to filing suit. We find no merit in Bennett’s contention that Riedl should not be “retroactively” applied to this case.

       Bennett apparently made similar assignments of benefits to two other medical service providers prior to incurring the medical expenses at issue, but these ássignménts were not made a part of the record. Nevertheless, it is undisputed that Bennett did not obtain reassignments from these providers until August 18 and 25, 1994, after her latest demand for payment, and less than 60 days prior to the date suit was filed.


text:
    A96A1355.
    JOHNSON v. THE STATE.
    (477 SE2d 439)
   Andrews, Judge.

Bobby Lee Johnson was found guilty by a jury of aggravated assault with a knife and possession of a knife during the commission of the aggravated assault. On appeal, he claims: (1) that the trial court erroneously instructed the jury to return a guilty verdict on the possession charge if they found him guilty of aggravated assault; (2) that the trial court erred by refusing to charge the jury on the’ defense of accident; (3) that he was denied due process of law by a delay in the preparation of the trial transcript during the appellate process; and (4) that the trial court should have ordered a retrial. Because instructing the jury to return a guilty verdict on the possession charge was error, the conviction for possession of a knife during the commission of the aggravated assault must be reversed. Finding no other error, the conviction for aggravated assault is affirmed under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The following evidence was produced at trial: The State presented testimony from the victim and two eyewitnesses that Johnson attacked and attempted to stab the victim with a knife in the lobby of the Richmond County courthouse. The victim testified that her hand was cut when she grabbed the blade of the knife to prevent Johnson from stabbing her. Johnson testified and admitted he pulled a knife on the victim and brought it up at her to scare her. But he testified that after doing so he decided not to hurt her and handed the knife to the victim. He testified that, although he intentionally pulled the knife and brandished it to scare the victim, he considered the whole incident to be an accident.

1. At the close of the evidence, the trial court instructed the jury that, if they found Johnson guilty of aggravated assault with a knife (Count 1), “you necessarily have to find him guilty of count 2 because that is whether or not he was in possession of a knife in the commission of a crime, and that’s been admitted in the testimony in the case.” This instruction was erroneous because it required the jury to find Johnson guilty of the possession charge if they found him guilty of aggravated assault and prevented the jury from independently considering whether or not Johnson was guilty of the possession charge. See Bryant v. State, 163 Ga. App. 872 (296 SE2d 168) (1982).

Apparently, the trial court concluded that, if the jury found Johnson guilty of aggravated assault with the knife, the evidence and law logically demanded that he also be found guilty of possession of the knife in the commission of the aggravated assault. However, under the Georgia Constitution, “the jury shall be the judges of the law and the facts” (Ga. Const. 1983, Art. I, Sec. I, Par. XI (a)), and the court cannot direct the jury to return a verdict of guilty in a criminal case no matter what the law or the evidence would require. Id. Although a jury has a duty to convict when the evidence proves guilt beyond a reasonable doubt, its duty is distinct from its power, and a jury has the power to acquit the defendant even if its verdict is contrary to the law and the evidence. Cargill v. State, 255 Ga. 616, 642 (340 SE2d 891) (1986); Felker v. State, 252 Ga. 351, 378-379 (314 SE2d 621) (1984). Accordingly, the judgment of conviction and sentence on the charge of possession of a knife during the commission of a crime must be reversed.

2. The trial court properly refused to give Johnson’s requested charge on misfortune or accident based on OCGA § 16-2-2 because there was no evidence to support it. Moore v. State, 220 Ga. App. 434, 435 (469 SE2d 211) (1996). Johnson’s testimony that he intentionally pulled the knife on the victim but considered the whole incident to be an “accident” was not even slight evidence that he acted accidentally, with “no criminal scheme or undertaking, intention, or criminal negligence.” OCGA § 16-2-2.'

3. Johnson has failed to demonstrate that delay in the preparation of a transcript of testimony during the appellate process denied him due process of law. Although there was an unexplained delay of over two years between the conviction and the filing of the requested trial transcript, Johnson’s only claim of prejudice is that he was incarcerated during the delay. In the absence of any evidence that a delay in preparing the transcript prevented an appellant from presenting an adequate appeal or impaired a defense which would have otherwise been available where a new trial is ordered due to trial error, no prejudice has been shown amounting to a denial of due process. Graham v. State, 171 Ga. App. 242, 250-251 (319 SE2d 484) (1984). “[W]e refuse to hold that post-conviction incarceration, in and of itself, is a violation of due process of law.” Id. at 251.

4. Because Johnson’s fourth enumeration of error was not supported in his appellate brief by citation of authority or argument, it is deemed abandoned. Court of Appeals Rule 27 (c) (2).

Judgment affirmed in part and reversed in part. Smith, J., concurs.

Pope, P. J., concurs specially.

Pope, Presiding Judge,

concurring specially.

I agree that the conviction for possession of a weapon during the commission of a crime must be reversed. No matter how one-sided the evidence is against a criminal defendant, the court cannot direct a verdict of guilty, which is essentially what it did here.

I cannot agree with the majority’s decision in Division 3, however, as I do not think this due process issue can or should be decided in the context of this appeal. Because defendant may be retried on the weapons offense, there is at least a possibility — a possibility not present in Graham v. State, 171 Ga. App. 242, 249 (7) (319 SE2d 484) (1984) — that defendant may have been prejudiced by the two-year delay in his appeal. And it is unrealistic and impractical to expect a defendant to show prejudice from a delay in the appeal in the course of that appeal itself, since no one will be able to evaluate the prejudice until they know the outcome of the appeal. For this reason, I believe the question of whether a delay in the appellate process violated the defendant’s due process rights should not be raised or addressed as an issue in the course of the allegedly delayed appeal, but should instead be raised in the lower court before any retrial.

In Graham, we agreed with other jurisdictions that “a defendant may be denied due process of law where there is an inordinate delay in the appellate process, including an excessive delay in the furnishing of a trial transcript necessary for completion of an appellate record.” 171 Ga. App. at 250. We adopted an analytical approach similar to that utilized in cases involving speedy trial violations: whether a delay in the appellate process violates due process depends on (1) the length of the delay, (2) the cause of the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. In Graham, the delay was a year, the trial was very lengthy, the court reporter had relocated to another state, and the defendant acknowledged he had not called the delay to the attention of the trial court. Moreover, as none of the defendant’s other enumerations of error were meritorious, there was no question of retrial. Under these circumstances, we could conclude there was no prejudice and no violation of due process as a matter of law. Id. at 251.

Here, we know that the delay was an unacceptably excessive two years. The cause of the delay is not reflected in the record, though it is obvious that the trial was neither lengthy nor complex. And it appears from the briefs (though it cannot be ascertained from the record) that defendant repeatedly brought the delay to the trial court’s attention and asked it to expedite the process. Like prejudice, these factors can best be explored in the context of an evidentiary hearing below.

Decided October 23, 1996

Lawrence D. Gatehouse, for appellant.

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

In Graham and Proffitt v. State, 181 Ga. App. 564, 566 (3) (353 SE2d 61) (1987), the defendants’ convictions were fully affirmed, so we could conclude that there was no prejudice and no violation of due process as a matter of law. But where, as here, the defendant’s conviction is partially or fully reversed and the defendant may be retried, we should refrain from deciding the due process issue and allow the trial court to address it first. If the trial court finds a due process violation, retrial of defendant on the weapons charge should be precluded; if it does not, retrial can proceed. And if the State chooses not to retry defendant, there will have been no prejudice and thus no violation of due process. See Proffitt, 181 Ga. App. at 566-567; Graham, 171 Ga. App. at 250.

       Under OCGA § 5-6-43 (c), this Court has the duty to expedite disposition of criminal cases where the defendant is confined in jail. And to the extent they do not already do so, trial courts giving their court reporters directions should prioritize transcripts in such cases accordingly.
      The defendant/appellant has the responsibility to call the delay to the attention of the trial court, as is reflected in the third factor in the analysis set forth in Graham,-, but only the trial court has the power to ensure the court reporter completes the transcript.


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

text:
    A96A1478.
    CALLAWAY et al. v. CROWN CRAFTS, INC. et al.
    (477 SE2d 435)
   Birdsong, Presiding Judge.

Gordon L. Callaway, Sr., and Jessie Elaine Callaway appeal the grant of summary judgment to Crown Crafts, Inc., Calhoun Awning and Wrought Iron Company, Sam Momon, and the City of Calhoun in the Callaways’ action against appellees arising from an incident in which Gordon Callaway was injured by electrical shock. Gordon Callaway was an employee of Calhoun Awning and Wrought Iron Company, which is owned by Sam Momon, when a rain gutter which Callaway was removing from a building owned by Crown Crafts came into contact with a high power line owned by the City of Calhoun, the electric power provider. Jessie Elaine Callaway’s cause of action is based on loss of consortium.

The record shows that Callaway and a co-worker were in the process of lowering the gutter to the ground when the 30-foot-long gutter collapsed in the middle. When this happened, the gutter tilted up and struck the overhead power line. Callaway was severely injured from the electric shock.

The Callaways filed suit contending that the defendants were strictly liable under OCGA § 46-3-30 et seq., the High-voltage Safety Act, because they failed to turn off the power source even though Callaway and his fellow workman would be working within the danger area of the high voltage wires. Subsequently, the defendants moved for summary judgment contending that Callaway had assumed the risk of working near the wires and that the High-voltage Safety Act applied equally to Calláway because, as the person actually performing the work, he was also required to call the power company. Thus, he assumed the risk of working without calling the power company to turn off the power. The trial court agreed and granted summary judgment. The Callaways now appeal. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). On appeal, a grant of summary judgment will be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (431 SE2d 746).

2. As to Calhoun Awning and Wrought Iron Company, Sam Momon, and Crown Craft, this appeal is controlled by our recent decision in Southern Orchard Supply v. Boyer, 221 Ga. App. 626 (472 SE2d 157), and our earlier decision in Leonardson v. Ga. Power Co., 210 Ga. App. 574 (436 SE2d 690). “In an action by a servant against a master for alleged failure of duty on the part of the latter in not giving to the servant warning of a danger incident to his employment, it ■must appear that the master knew or ought to have known of the danger, and that the servant injured did not know and had not equal means with the master of knowing such fact, and by the exercise of ordinary care could not have known it.” (Citation and punctuation omitted.) Southern Orchard Supply, supra at 627. In this case, the record shows that Callaway had worked around and was keenly aware of the dangers of working around high voltage wires, his boss had discussed with him and his co-workers the dangers of working around this particular wire, and Callaway and his co-worker also had discussed this problem before undertaking the removal and lowering of the gutter. Under the circumstances it cannot be reasonably said that Callaway was not aware of the dangers associated with these wires. Moreover, the record demonstrates that Callaway and his coworker independently decided to lower the gutter near the power line when several other means existed for removing the gutter without working near the power line. Therefore, Callaway “failed to exercise ordinary care for his own safety, and it was his own negligence that proximately caused his injury. This failure to exercise ordinary care is fatal to his claim.” Id. at 628. Further, by deciding to work near the power line, Callaway assumed the risk of the injury. Leonardson v. Ga. Power Co., supra at 576-577. Although assumption is ordinarily a jury question, we find this to be a plain, palpable and undisputed case in which the grant of summary judgment is authorized. Tennison v. Lowndes-Echols Assn. &c., 209 Ga. App. 343, 344 (433 SE2d 344). Accordingly, the trial court did not err by granting summary judgment to Calhoun Awning and Wrought Iron, Sam Momon, and Crown Craft.

3. As to the City of Calhoun, the record shows that the notice required by OCGA § 46-3-34 was not given. Therefore, the City cannot be liable. OCGA § 46-3-39. Moreover, we note that Mrs. Callaway’s consortium claim against the City would fail in any event because she did not give notice of her claim to the City. OCGA § 36-33-5; Campbell v. City of Atlanta, 117 Ga. App. 824 (162 SE2d 213).

4. Because Mrs. Callaway’s loss of consortium claim is derivative of her husband’s cause of action, for the above-stated reasons, the trial court also did not err by granting summary judgment on her claims. Hall v. Gardens Svcs., 174 Ga. App. 856, 858 (332 SE2d 3).

Judgment affirmed.

Blackburn, J., concurs. Beasley, C. J, concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur in the judgment that defendants are entitled to summary judgment because Mr. Callaway assumed the risk of injury as a matter of law, but I do not concur in all that is written in explanation thereof.

1. First, as to the recitation of the undisputed facts in Division 2, the version given is more in keeping with the evidence of defendants, which differs from that of plaintiffs as demonstrated in Mr. Callaway’s deposition. On summary judgment, the court must take the evidence in favor of the non-movants, the Callaways. Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442) (1962). He testified that the presence of the electric wire was simply mentioned by one of the men (employer Momon, supervisor/co-worker Beach, or Callaway) before the two co-workers started the work of removing and replacing the gutter. They did not discuss it, and nothing more was said about it. Photographs filed with the deposition show the wire proximity to the roof. Callaway did not think it would be a hazard because they were not going near it themselves or with the gutter. They concerned themselves with unconnecting the gutter and getting it down off the roof without hitting cars or people. He did assume it was “hot” and knew it was dangerous.

Under this version, too, Mr. Callaway assumed the risk of injury as a matter of law. “Assumption of risk is ‘a matter of knowledge of the danger and intelligent acquiescence in it’ . . it was a risk in fact known to him. Wright v. The Concrete Co., 107 Ga. App. 190, 194 (2) (a) (129 SE2d 351) (1962). When the plaintiff “knows and appreciates” the risk of danger, he is precluded from recovery when injured by the source of that exposure to harm. Roberts v. King, 102 Ga. App. 518, 522 (1) (116 SE2d 885) (1960).

2. Division 3 holds that the City of Calhoun cannot be liable because it was not given notice prior to commencement of the work so that appropriate safety precautions could be taken. But “lack of such notification is a bar to recovery only where the lines are ‘otherwise properly located and maintained.’ [Cit.]” Malvarez v. Ga. Power Co., 250 Ga. 568, 569 (300 SE2d 145) (1983). In Carden v. Ga. Power Co., 231 Ga. 456 (202 SE2d 55) (1973), which established this caveat, the Supreme Court pointed out that there was no evidence that the maintenance of the line was negligent, so the lack of notice absolved the line’s owner, in that case, Georgia Power Company. In our subsequent case of Three Notch EMC v. Bush, 190 Ga. App. 858 (1) (380 SE2d 720) (1989), the burden was placed on the defendant who claimed the defense of no notification. The court ruled, “Since it has not been shown as a matter of law that the lines were properly located and maintained at the time of the accident, it cannot be said as a matter of law that Three Notch is absolved of liability even in the absence of the statutory notice.” Id. at 859.

This is because, as succinctly stated in Buckner v. Colquitt EMC, 206 Ga. App. 69, 70 (424 SE2d 299) (1992), “One maintaining high tension lines must maintain them in such a manner and at such a location as not to injure persons who might reasonably be expected to come in contact with them.” (Emphasis omitted.) The court cited Carden.

There is some evidence that the lines were not properly maintained in that the expert’s affidavit státes that there is a violation of the National Electric Safety Code, and that if the wire had been in compliance, the injury “most probably would not have occurred.” But even if the line was not properly maintained, and even if the line owner should reasonably have expected persons to come in contact with it directly or indirectly through a conductor (there was evidence that access to the roof was provided by way of a permanent squirrel cage ladder, plus evidence that another person had been injured by the wire several years earlier), the City’s liability like the other defendants’ liability is foreclosed by Mr. Callaway’s assumption of the risk.

Decided October 23, 1996.

Starr & Daniel, Kenneth R. Starr, for appellants.

Kinney, Kemp, Pickell, Sponcler & Joiner, Lemuel H. Kemp, Robert A. Cowan, for appellees.

As to the “person[s]- responsible for the work,” who were required by law to notify the line owner at least 72 hours in advance of the work, the law imposes strict liability. OCGA §§ 46-3-32 (3); 46-3-34; 46-3-40 (b). But assumption of the risk is an available defense even in such instances. Deere & Co. v. Brooks, 250 Ga. 517, 519 (2) (299 SE2d 704) (1983).

3. Mention must be made of plaintiff’s argument that he was not required by the statute to give notice to the power owner. It is true that he was just a worker, an employee. He testified that he and his co-worker were the only employees of Calhoun Awning and Wrought Iron Company, and that his employer Sam Momon had instructed him when he was hired some ten months prior to this incident that his co-worker was his supervisor. His co-worker, who had worked about eight years for Momon, was in charge, and Callaway did as he was told. Momon showed them what to do, when they got to the job site. He was just a $5-per-hour helper, and he did not know what job they would be going to when he went to work that morning. Under the pre-1992 version of the High-voltage Safety Act, the appellate courts viewed the law as not requiring the employees as responsible for notifying the line owner but rather as the persons for whose protection the law was enacted. See, e.g., Johnson v. Richardson, 202 Ga. App. 470 (414 SE2d 698) (1992); Three Notch EMC, supra at 859; Carden, supra at 457; Savannah Elec. &c. Co. v. Holton, 127 Ga. App. 447, 449-452 (3) (193 SE2d 866) (1972). However, the law was amended in 1992 to include among those who are “person[s] responsible for the work,” and thus obligated to notify the line owner, “the person actually doing the work” as well as the employers. It is difficult to avoid these plain words.


author: Beasley, Chief Judge.

text:
    A96A1526.
    CASHIN et al. v. HARDMAN et al.
    (477 SE2d 433)
   Beasley, Chief Judge.

This appeal was transferred to the Court of Appeals by the Supreme Court of Georgia for the stated reason that the only substantive question is whether the superior court properly concluded that the legal standard for removing tax assessors was met. The Supreme Court cited Pittman v. Harbin Clinic &c., 263 Ga. 66 (428 SE2d 328) (1993).

On the authority of OCGA § 48-5-295, the Glynn County Board of Commissioners voted to remove the members of the county’s Board of Tax Assessors from office because of their failure to file a tax digest by June 1, 1995, as required by OCGA § 48-5-302. The tax assessors filed this action for injunctive relief. They appeal orders denying their motion to recuse the trial judge and the requested injunction. We hold in Division 2 that the judge did not err in denying the recusal motion rather than having it assigned to another judge. The issues addressed in Division 1 relate to the holding in Division 2.

1. The tax assessors contend the court erred in finding that the failure to comply with OCGA § 48-5-302 could mandate, ipso facto, their removal without a just and proper showing of cause.

With certain exceptions inapplicable here, OCGA § 48-5-302 states that “[e]ach county board of tax assessors shall complete its revision and assessment of the returns of taxpayers in its respective county by June 1 of each year. . . Under OCGA § 48-5-295 (b), “[a] member of the county board of tax assessors may be removed by the county governing authority only for cause shown for the failure to perform the duties or meet the qualifications imposed upon him by law.”

In Kirton v. Biggers, 232 Ga. 223, 226 (1) (206 SE2d 33) (1974), the court interpreted the phrase “for cause shown” in OCGA § 48-5-295 (b) as requiring the county governing authority to give tax assessors notice and a hearing in order to effect their removal from office. In this case, the tax assessors were given notice that the board of commissioners proposed to remove them from office because of their failure to carry out the duty imposed upon them by OCGA § 48-5-302. This notice also informed the tax assessors that the matter would be considered by the board of commissioners at a meeting at which the tax assessors had the opportunity to defend the charges against them. At the conclusion of the meeting, the board voted to remove the assessors from office.

The tax assessors argued to the superior court that the duty imposed by OCGA § 48-5-302 is directory rather than mandatory and thus cannot be a violation of a legal obligation justifying their removal from office. This argument was rejected in the second appelláte appearance of the Kirton case, Kirton v. Biggers, 135 Ga. App. 416 (218 SE2d 113) (1975): “[OCGA § 48-5-295 (b)] provides that removal may be for merely ‘the failure to perform the duties . . . imposed ... by law.’ The duty under [OCGA § 48-5-302] is such a duty ‘imposed upon them by law,’ whether it is a mandatory or merely a directory duty. The statute does not differentiate either between duties which are mandatory or directory, joint or several, or between failures of performance of duties which are intentional or negligent.” Id. at 418 (2); Allen v. Norris, 148 Ga. App. 261, 263 (3) (251 SE2d 145) (1978).

The tax assessors asserted to the superior court that their failure to file the digest within the statutory deadline was either justifiable on various grounds or harmless. They produced evidence that historically the tax digest has not been submitted by the statutory deadline; that their inability to complete the present digest was caused by the fact that the county commission hired a consulting firm which installed a computerized verification and appraisal system used in a 1995 county-wide property revaluation; and that the county was not prejudiced by the fact that the digest was not submitted by the 1995 deadline because extensions were obtained from the State.

The board of commissioners presented evidence that the tax assessors’ failure to meet the statutory deadline did prejudice the county and occurred despite the fact that the commissioners had provided the tax assessors with sufficient resources, including the services of the consulting firm, to submit the digest in a timely fashion. The evidence showed that the consulting firm was hired by the county commission on the recommendation of the tax assessors.

The superior court correctly held that the tax assessors’ failure to complete the digest by the statutory deadline did not mandate their removal, but that this breach of duty gave the commission discretion to remove them. See Kirton, supra, 135 Ga. App. at 419 (3); see also Allen v. Norris, 151 Ga. App. 305 (259 SE2d 701) (1979). The superior court did not err, because the failure to fulfill the statutory duty is a valid cause for removal.

2. The tax assessors challenge the judge’s denial of their recusal motion.

At the conclusion of the hearing in superior court, the judge observed that, as a result of the 1995 revaluation, he had been deluged with taxpayer complaints as though it were his “fault” and that there had been an escalation in the valuation of properties in which he himself had an interest. He recognized that the assessors retained the consultants to assist in revaluation and criticized the method he had seen used by the consulting firm to appraise his and neighbors’ houses. In concluding these remarks, he noted that all of them (commissioners and assessors) were good people and he would enter an order according to what he thought the law was.

As a result of these comments, the tax assessors filed a timely motion for recusal of the judge and a supporting affidavit, on grounds that his remarks at the hearing related to central issues in the case, gave the appearance of impropriety, and indicated a personal prejudice against the tax assessors. The judge did not have the motion assigned to another judge but instead denied it, giving the reasons therefor.

“When a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to be true, whether, recusal would be warranted. If it is found that the motion is timely, the affidavit sufficient and that recusal would be authorized if some or all of the facts set forth in the affidavit are true, another judge shall be assigned to hear the motion to recuse.” Uniform Superior Court Rule 25.3. “Judges shall disqualify themselves in proceeding in which their impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding.” Canon 3 (E) (1) (formerly Canon 3 (C) (1)) of the Georgia Code of Judicial Conduct.

“ ‘In order to be disqualifying the alleged bias must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from (his or her) participation in the case. ... To warrant disqualification of [a trial judge] the affidavit supporting the recusal motion must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment. Under Cañón 2 . . ., a judge must avoid all impropriety and appearance of impropriety. . . . It is not necessary that there be shown any actual impropriety on the part of the trial court judge. The fact that his impartiality might reasonably be questioned suffices for his disqualification.’ ” (Citations and emphasis omitted.) In re Shafer, 215 Ga. App. 520, 521 (451 SE2d 121) (1994).

The remarks of the judge, as set out in the affidavit, and confirmed by the transcript, had no bearing on any issue in the case and amounted to informal remarks on an aspect of the assessment process beyond and not relevant to the issues before the court. This was insufficient to require decision on the motion by another judge or to demand recusal. See Dept. of Transp. v. City of Atlanta, 260 Ga. 699, 705 (4) (398 SE2d 567) (1990). Secondly, the issue before the superior court was whether the commissioners were authorized by law to remove the assessors on the grounds asserted, and that Was a matter of law. The superior court judge was not faced with an exercise of his discretion.

Judgment affirmed.I.

Éirdsong, P. J., and Blackburn, J, concur.

Decided October 23, 1996

C. Nelson Jarnagin, R. Joseph Hammill, for appellants.

W. Gary Moore, Desiree E. Watson, for appellees.


text:
    A96A1542.
    LEE v. VISITING NURSE HEALTH SYSTEM OF METROPOLITAN ATLANTA, INC. et al.
    (477 SE2d 445)
   Beasley, Chief Judge.

Defendants’ motions to dismiss in this malpractice case were granted for failure to comply with the requirements of OCGA § 9-11-9.1, and Lee appeals.

Hogan, an orthopedic surgeon, performed surgery to repair Lee’s fractured knee and prescribed certain post-operative physical therapy, which Lee received from Visiting Nurse Health System (‘VNHS”). Lee contends that during one therapy session Darnell, a therapist employed by VNHS or acting as the apparent, agent of VNHS, overly flexed his knee in violation of Hogan’s specific prescription that it not exceed an angle of 30 degrees. This allegedly caused displacement of the fragments and required a second surgical operation.

Lee sued VNHS and Darnell for malpractice. He stated in his complaint that the period of limitation would expire in less than ten days and that time constraints prevented him from supplying the affidavit of a physical therapist in accordance with OCGA § 9-11-9.1 (a), but that one would be supplied within 45 days. See OCGA § 9-11-9.1 (b). Within that time he submitted an affidavit signed by Dr. Hogan, who averred he was familiar with “the post-operative care of surgical patients and the practices of physical therapists in providing such post-operative care.” His examination of the knee and X-rays led him to believe a therapist had flexed the knee more than the 30-degree maximum he prescribed in his post-operative orders, causing the injury. He also testified it was contrary to professional standards for physical therapists to go beyond a maximum flexion prescribed by the attending physician.

Both VNHS and Darnell moved to dismiss the suit under OCGA § 9-11-12 (b) (6), contending Hogan was not competent to so testify. The court first granted VNHS’s motion, and Lee appealed, but prematurely because the order pertained only to VNHS and was not a final judgment under OCGA § 5-6-34 (a). Upon remittitur, the court granted Darnell’s motion, making the judgment final and prompting this appeal.

In four enumerations, which we treat together, Lee contends the court erred in granting summary judgment. The court did not explain why it granted VNHS’s motion but stated in the order granting therapist Darnell’s motion that Hogan was not competent to make the OCGA § 9-11-9.1 affidavit because the therapist and the surgeon are members of different schools of medicine. The court cited Sandford v. Howard, 161 Ga. App. 495 (288 SE2d 739) (1982).

“ ‘ “The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed, not to require a plaintiff to prove a prima facie case entitling him to recover and capable of withstanding a motion for summary judgment before the defendant need file his answer.” ’ [Cit.]” Crook v. Funk, 214 Ga. App. 213, 214-215 (1) (447 SE2d 60) (1994). OCGA § 9-11-9.1 “‘merely imposes an initial pleading requirement on the plaintiff.’ ” (Emphasis in original.) Hewett v. Kalish, 264 Ga. 183, 184 (1) (442 SE2d 233) (1994). Pleading rules apply when addressing “whether a plaintiff’s action is subject to dismissal under OCGA § 9-11-12 (b) (6); . . . for a complaint to be subject to dismissal for failure to state a claim, the affidavit must ‘ “disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.” ’ [Cit.] ... [A] Section 9-11-9.1 affidavit should be construed most favorably to the plaintiff and all doubts should be resolved in plaintiff’s favor, even if an unfavorable construction of the affidavit may be possible, so long as such construction does not detract from the purpose of § 9-11-9.1 of reducing the number of frivolous malpractice suits. [Cit.]” (Emphasis in original.) Id. See also Bowen v. Adams, 203 Ga. App. 123, 124 (416 SE2d 102) (1992). This rule is to be applied to questions of affiant’s competence. Hewitt, supra; see Gadd v. Wilson &c., 262 Ga. 234, 235 (416 SE2d 285) (1992).

Application of pleading rules to a competency determination requires “[fjirst, if a plaintiff’s complaint would not be subject to dismissal after the application of pleading rules, then there is a reasonable likelihood that the complaint is not frivolous. Second, if a defendant believes that the application of pleading rules would not lead to the conclusion that the plaintiff’s expert is incompetent to testify but the defendant nevertheless believes that the plaintiff’s expert is in fact incompetent, the defendant may attempt to resolve this discrepancy at a hearing under OCGA § 9-11-12 (d).” (Footnote omitted.) Hewitt, supra at 184. The procedure for the hearing is set out in Hewitt and provides for the presentation of evidence which then converts the motion into one for summary judgment.

Although oral argument was requested, there is no indication a hearing was ever held. In pleadings, the defendants did not present or refer to any evidence that Hogan was not competent to testify. Nothing outside the pleadings was presented, the motion was not converted into a motion for summary judgment, and the court was required to apply pleading rules to the issue of Hogan’s competence. Id. at 184-186 (1).

Lee’s allegations, together with the affidavit, are not deficient. Although the defendants contend Hogan was not competent as an expert to make the affidavit, “for an affiant to constitute ‘an expert competent to testify’ under OCGA § 9-11-9.1 (a), the affiant’s expertise must include knowledge of the standard of care applicable to the defendant-[professional] as to at least one of the matters on which the plaintiff’s malpractice claim is based. This [requirement] is mandated by the language of the statute that the expert affidavit submitted by the plaintiff must specifically set forth ‘at least one negligent act or omission’ allegedly committed by the defendant-[professional]. To support a claim of medical malpractice, any such ‘negligent act or omission’ must have been the result of the defendant-tprofessional’s] breach of a duty owed the plaintiff-patient by failing to exercise the requisite degree of skill and care. [Cits.] Since an affiant whose expertise does not encompass the standard of care applicable to the defendant-[professional] in the performance of one of the challenged acts or omissions does not possess the knowledge to opine whether malpractice existed in the defendant-[professional’s] performance, as alleged by the plaintiff, such an affiant would not qualify as an ‘expert competent to testify’ under OCGA § 9-11-9.1 (a).” Chandler v. Koenig, 203 Ga. App. 684, 685-687 (417 SE2d 715) (1992).

Hogan’s affidavit shows he can “opine whether malpractice existed.” He testified he has practiced orthopedic surgery for five years and has extensive experience in knee surgery; that he has become “thoroughly familiar with the post-operative care of surgical patients and the practices of physical therapists in providing such post-operative care”; and that he is familiar with the professional standard of care of physical therapists treating post-operative patients. He states that it is a violation of the professional standards to fail to comply with physician instructions, that his instructions were that the knee not be flexed more than 30 degrees, and that excessive flexion was the probable cause of the injury. This addresses an area concerning “at least one of the matters on which the plaintiff’s malpractice claim is based.” Id. at 685. In fact, it is the single act alleged to be negligent. This is not a case in which the affidavit fails to show how the affiant has “expert, knowledge of the standard of care” which he addressed. Compare Piedmont Hosp. v. Milton, 189 Ga. App. 563, 564 (377 SE2d 198) (1988); Chandler, supra at 687. Moreover, as in Hewett, supra at 186 (2), the affidavit itself states Hogan is competent to make the affidavit, a conclusion permissible in pleadings.

Nor is this a case of the “overlap” exception to the rule that the plaintiff’s expert and the defendant professional be of the same school, such as is illustrated by Handson v. HCA Health Svcs. &c., 264 Ga. 293 (443 SE2d 831) (1994). Although Dr. Hogan is not a physical therapist, Lee does not complain of Darnell’s method of administering the physical therapy or the manner of performance, that is, how physical therapy was administered. Compare the overlap or common area of expertise cases of Tye v. Wilson, 208 Ga. App. 253 (430 SE2d 129) (1993), and Nowak v. High, 209 Ga. App. 536 (433 SE2d 602) (1993). Instead, Lee alleges negligence in the extent of the therapy. Had Dr. Hogan simply prescribed physical therapy in general, leaving it up to the physical therapist to exercise professional judgment as to the extent of flexion appropriate to achieve proper healing, then he would have to show he is competent to make that judgment also. That would be an area of overlap, that is, where both the surgeon and the therapist are qualified to fix the maximum degree of flexion to be obtained. In that instance, the expert from a different school would have to show that they share a common area of expertise, in order to be competent to give an opinion that the professional deviated from the standard of care required in that profession. An orthopedic surgeon may be qualified as an expert regarding the standard of care required of a physical therapist. See Wade v. John D. Archbold Mem. Hosp., 252 Ga. 118 (311 SE2d 836) (1984).

Here the surgeon fixed the maximum degree of flexion, and defendants neither contest his capacity or competency to do so nor show that only physical therapists are qualified to make that decision. In fact, it would be a defense to show that physical therapists are also trained to set the maximum degree (reverse “overlap”), that they are authorized to supersede the specific prescription of the surgeon, and that Darnell did so without negligence in this case. But that does not undermine the sufficiency of Lee’s complaint taken together with Dr. Hogan’s affidavit. The complaint alleges that the physical therapist exceeded the bounds of the explicit prescription, causing injury. The affidavit confirms that this was the prescription and that the physical therapist’s standard of care required this instruction to be followed. The affiant is the expert who set it, and by his qualifications as the ordering physician, who decided the maximum degree of flexion, he was qualified to testify whether the expert in the field competent to carry it out breached the standard of care in changing it. The affidavit adequately establishes, for OCGA § 9-11-9.1 pleading purposes, the competency of the treating physician who prescribed certain treatment by another health professional to testify that failure to follow the explicit prescription falls ■ short of the required standard of care of that profession.

Decided October 23, 1996.

Thomas J. Hills, for appellant.

Drew, Eckl & Farnham, Sean W. Conley, James M. Poe, Downey & Cleveland, Russell B. Davis, for appellees.

The defendants contend that, even at the pleading stage, Hogan could testify to the professional standards of physical therapists only if he held a license as one, citing Riggins v. Wyatt, 215 Ga. App. 854, 855 (452 SE2d 577) (1994). However, this case, unlike Riggins, does not involve an affiant who lacks “expertise as to the standard of care of a practicing [physical therapist] in treating patients” such as Lee. Id. To the contrary, Hogan’s affidavit shows his knowledge of the professional standards of physical therapists comes from practicing medicine with their assistance, necessarily involving the practice of their profession. Nor does this case present a question of whether the affiant possesses expert qualifications “similar” to the defendant’s. Id. Hogan’s expertise comes from his involvement as one who prescribes the treatment performed; his expertise was not gained by “similar” experience but by experience that is essentially supervisory. Riggins does not control this decision. There the court complied with the procedural requirements of Hewett, supra, which was the failing here. Riggins, supra at 857.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.

       In one enumeration, Lee addresses VNHS’s trial court argument that a separate affidavit must be filed alleging negligence on its part, and that the only affidavit alleged negligence on the part of Darnell individually. The argument fails; if VNHS is liable, it is by operation of respondeat superior through the acts of its professional agent. See Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 64-65 (3) (424 SE2d 632) (1992); Ga. Physical Therapy v. McCullough, 219 Ga. App. 744 (466 SE2d 635) (1996). A proper affidavit as to Darnell suffices.

       The profession of physical therapy is governed by OCGA §§ 43-33-1 to 43-33-20.


text:
    A96A1547.
    AMAN v. THE STATE.
    (477 SE2d 431)
   Beasley, Chief Judge.

Following the denial of his motion for new trial, Aman appeals his convictions of driving under the influence (OCGA § 40-6-391 (a) (1)) and improper lane change (OCGA § 40-6-48).

Lieutenant Green, Commander of the Fulton County Police Department’s DUI task force, was patrolling 1-285 in the early morning hours of May 7, 1994. He stopped a car driven by Aman after observing it weave repeatedly in and out of its lane and almost strike another vehicle. Aman was unsteady as he walked, his eyes were bloodshot, his face was flushed, and the odor of an alcoholic beverage emanated from him and the interior of the car. Green asked Aman to submit to several field sobriety tests which he did not perform successfully. Green also asked Aman to blow into an alco-sensor device, which gave a positive reading for the presence of alcohol. Aman was then arrested.

1. Aman contends that the trial court erred in admitting evidence of the alco-sensor in the absence of a proper foundation.

In order for the results of an initial screening device such as an alco-sensor to be admissible in evidence, the State must show that the device is of a design approved by the Director of the Division of Forensic Sciences (DFS) of the Georgia Bureau of Investigation (GBI). Ronskowsky v. State, 190 Ga. App. 147, 148 (2) (378 SE2d 185) (1989); Turrentine v. State, 176 Ga. App. 145 (1) (335 SE2d 630) (1985); Channell v. State, 172 Ga. App. 156 (322 SE2d 356) (1984).

Prior to the impaneling of the jury, Aman raised the issue of whether the State was going to lay a foundation for admission of the alco-sensor test results. He argued that this must be accomplished through a document certifying that the device has been approved for use in Georgia by the DFS, as in Turrentine and Ronskowsky, or through a witness employed by the DFS or GBI. Aman objected to any attempt by the State to supply the foundation through the testimony of the arresting officer. The court overruled that objection, and the results of the alco-sensor test were admitted after the arresting officer testified that the device he used was of the requisite approved design.

The court did not err. A witness may testify to facts about which he has personal knowledge, which the officer did. See Tidwell v. State, 219 Ga. App. 233, 237 (3) (464 SE2d 834) (1995).

2. Aman contends that the court erred in denying his motion for mistrial after making allegedly improper and prejudicial comments in the presence of the jury concerning defense counsel’s questioning of the arresting officer.

During defense counsel’s cross-examination of the arresting officer, counsel posed certain questions even though the court had previously sustained objections which prohibited the asking of the questions. After counsel posed a question to which an objection was sustained, the court admonished him for asking improper questions. Counsel moved for a mistrial on the ground that it was improper for the court to have characterized his questions as improper. The court denied the motion.

Aman argues, without merit, that the judge’s comment constituted an expression or intimation of opinion as to what had or had not been proved, in violation of OCGA § 17-8-57. “ ‘The rule which prohibits an expression or intimation of opinion by the trial court “as to what has or has not been proved,” OCGA § 17-8-57, “does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence. (Cits.)” (Cit.) [Cit.]’ ” Adams v. State, 264 Ga. 71, 76 (7) (440 SE2d 639) (1994).

Decided October 23, 1996

William C. Head, for appellant.

Paul L. Howard, Jr., Solicitor, Rhonda L. Brodsky, Deborah W. Espy, Cynthia G. Strong-McCarthy, Assistant Solicitors, for appellee.

Judgment affirmed.

Birdsong, P. J, and Blackburn, J., concur.


author: Judge Harold R. Banke.

text:
    A96A1888.
    MILLER v. THE STATE.
    (477 SE2d 430)
   Judge Harold R. Banke.

Jerome Miller was convicted of voluntary manslaughter and aggravated assault. In his sole enumeration of error, he appeals the trial court’s denial of his motion for new trial and challenges the sufficiency of the evidence supporting the voluntary manslaughter charge.

The evidence, viewed in the light most favorable to the verdict, revealed the following. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). During a Labor Day celebration at Iris brother’s house, Miller observed his former girl friend dancing with another man. Miller cursed her and told her she was going to be another Nicole Simpson to his O. J. She left, but he followed her to her mother’s house. The conflict became physical, the police restrained Miller, and he left. Miller had been drinking for hours.

Later that evening Miller went to the ex-girl friend’s house, but she had left to visit the home of one of the victims, Iris Mays. When the ex-girl friend’s sister asked Miller what he wanted, Miller responded that he did not want to kill her, only her sister. Miller then walked down to Iris Mays’ house and called to the ex-girl friend, who came out on the porch. The ex-girl friend then went back into the house, gave her keys to the other victim, Iris Mays’ 13-year-old son, Raymond, and told him to go to her house and call the police. Raymond went outside and he and two of Iris’ friends told Miller to leave. Iris tried to calm Miller down, but he walked up to Raymond who pushed him away. As Raymond walked away, Miller began firing. Raymond fell, shot in the back, then got up and ran. One of the bullets hit Iris Mays in the head and killed her. In all, Miller fired six shots.

Later that evening, Miller told a friend he had shot some people and asked him to get rid of the gun. The friend took the gun to the sheriff’s department.

Decided October 23, 1996.

Johnny B. Mostiler, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

At trial, Miller testified that after Raymond and the two friends told him to leave they blocked his way, bumped into him, and eventually one of them hit him. Miller stated that he intentionally aimed and shot low at Raymond’s leg, after Raymond said he was going to get a gun and started running. Miller testified that after he shot Raymond, he quit aiming. Held:

The evidence, viewed in the light most favorable to the verdict, was sufficient to permit a rational trier of fact to find all the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. at 319-320. The elements of voluntary manslaughter are satisfied with proof the accused caused the death of another under circumstances which would otherwise be murder but for the fact that he acted “solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” OCGA § 16-5-2 (a); Thomas v. State, 184 Ga. App. 131, 132 (2) (361 SE2d 21) (1987). Fear of some danger can be sufficient provocation to excite the passion necessary for voluntary manslaughter. Mitchell v. State, 199 Ga. App. 159, 161 (404 SE2d 329) (1991). The evidence that Iris Mays’ friends and son placed Miller in fear of danger when he fired the fatal shot was sufficient to establish each of these elements.

In his brief, Miller in effect requests us to reweigh the evidence to place greater credence in his justification defense than the jury did. This we cannot do. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994).

Judgment affirmed.

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


author: Eldridge, Judge.

text:
    A96A2299.
    RADFORD v. THE STATE.
    (477 SE2d 428)
   Eldridge, Judge.

Appellant entered a guilty plea to the offenses of escape, interference with government property, and theft by taking a motor vehicle in Thomas County. Part of his sentence was to serve twelve months of incarceration in the county jail ‘as a condition to five years of probation; he was also ordered to make restitution for damage caused during his escape. Appellant challenges both aspects of his sentence. Held:

1. Appellant asserts that the trial court erred as a matter of law in sentencing appellant to serve, as a condition of probation, one year of incarceration in the county jail. We agree.

This Court in Pitts v. State, 206 Ga. App. 635, 639 (426 SE2d 257) (1992), held that, in the absence of express statutory authority, “the imposition of any term of continuous and uninterrupted incarceration in a jail or penitentiary as a special condition of probation ... is unauthorized by law.” (Emphasis in original.) See also Johnson v. State, 219 Ga. App. 547, 550 (466 SE2d 63) (1995). “Thus, that erroneous portion of the court’s sentence must be vacated and the case remanded with direction that [appellant] be resentenced in accordance with the law.” Id. Such sentence may include a term of incarceration with the balance on probation; a fully probated sentence; intermittent incarceration, such as weekend confinement in a jail; or an alternative program, such as boot camp. Pitts, supra; see also Johnson, supra; Penaherrera v. State, 211 Ga. App. 162 (438 SE2d 661) (1993).

2. In the second enumeration, appellant asserts that the trial court erred as a matter of law in ordering restitution when no hearing was held and no evidence was presented to support the order, as required by OCGA §§ 17-14-8 through 17-14-10. We agree.

Code sections 17-14-8 through 17-14-10 “contemplate a hearing and specific written findings by the court in determining whether it will order restitution and, if so, the amount thereof.” (Citations and punctuation omitted; emphasis in original.) Thompson v. State, 186 Ga. App. 471, 474 (367 SE2d 320) (1988). OCGA § 17-14-10 lists several specific factors which must be considered by the court before ordering restitution. Further, the amount of restitution must be “based on competent and relevant evidence.” Lomax v. State, 200 Ga. App. 233, 235 (407 SE2d 462) (1991); see also Lovell v. State, 189 Ga. App. 311 (375 SE2d 658) (1988).

The transcript of the sentencing hearing in the case sub judice is totally devoid of any evidence to support the amount of restitution ordered by the trial court or of any consideration by the trial court of the factors delineated in OCGA § 17-14-10. “ Accordingly, we must reverse that portion of appellant’s sentence which imposes restitution . . . and remand the case to the trial court with direction that a hearing on the issue of restitution be held at which (OCGA § 17-14-9) and the factors in (OCGA § 17-14-10) are to be considered and we further direct that the written finding required by (OCGA § 17-14-8) be made.’” Murphy v. State, 182 Ga. App. 791, 793 (357 SE2d 147) (1987), quoting Patterson v. State, 161 Ga. App. 85, 86 (289 SE2d 270) (1982); see also Thompson, supra at 474; Williams v. State, 180 Ga. App. 854, 856 (350 SE2d 837) (1986).

Decided October 23, 1996.

Ronald R. Parker, for appellant.

H. Lamar Cole, District Attorney, Mark E. Mitchell, Assistant District Attorney, for appellee.

Judgment of conviction affirmed.

Sentence and restitution order vacated, and case remanded for re-sentencing. Johnson and Ruffin, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A96A0884.
    JENKINS v. THE STATE.
    (477 SE2d 608)
   McMurray, Presiding Judge.

Defendant was indicted for operating a motor vehicle after having received notice that his driver’s license had been revoked for being a habitual violator, driving under the influence of alcohol to the extent that it was less safe for him to drive, operating a motor vehicle without proof of insurance, operating a motor vehicle without insurance, and driving too fast for conditions. The evidence adduced at a jury trial reveals that defendant drove a car into the rear of a “Savannah Transit CAT bus” shortly before 7:00 p.m. on December 24, 1993. Officer Lucy Coleman of the Savannah Police Department testified that she arrived at the scene immediately after the collision, found defendant “behind [the wrecked car’s] driver’s wheel slumped over” and smelled alcohol emanating from defendant’s body. Officer Coleman further testified that defendant was “mumbling and . . . was very incoherent. . .” after the collision; that defendant stumbled twice as she led him to her patrol car and that defendant gave her a “Georgia State ID card” instead of a driver’s license when she asked him for his driver’s license and proof of insurance. Officer Coleman explained that she ran an on-the-scene check of defendant’s driving record and discovered that defendant held the status of a “habitual violator.”

Department of Corrections Probation Officer Wanda Miller testified that she observed defendant receive a form providing notice of defendant’s driver’s license revocation and habitual violator status on June 29, 1993, almost six months before defendant rear-ended the “Savannah Transit CAT bus.” Officer Miller also testified that she witnessed defendant sign this form under a section which provides — “I HAVE PERSONALLY RECEIVED SERVICE OF HABITUAL VIOLATOR REVOCATION ORDER”; that she acknowledged defendant’s signature by signing the habitual violator notice form as a witness and that this transaction occurred in open court before the State Court of Chatham County, Georgia. Defendant did not dispute this testimony, explaining instead that he did not understand the acknowledgment form when he signed it because he “could have been intoxicated at the time. . . .” Defendant further explained that, although he executed the habitual violator notice form on June 29, 1993, he “officially . . . wasn’t notified from Atlanta —” about his habitual violator status until January 8, 1994, over two weeks after the “Savannah Transit CAT bus” collision when he received a habitual violator notice, via registered mail, from the Georgia Department of Public Safety.

Defendant admitted on cross-examination that he did not have proof of insurance on him when he rear-ended the “Savannah Transit CAT bus,” but insisted that the car he was driving was insured at the time of the collision. Defendant volunteered (upon direct examination), however, that he did not bring his insurance card (apparently evidencing proof of this coverage) to trial “because [he] sold the vehicle sometime last year[, during 1994].” The driver of the “Savannah Transit CAT bus” testified that he was injured by the collision and that defendant did not have automobile liability insurance coverage at the time of the collision.

The State proved that defendant was convicted less than six months before the “Savannah Transit CAT bus” collision for committing four separate acts of driving under the influence of alcohol; that these convictions were based on guilty pleas defendant entered before the State Court of Chatham County on June 29, 1993, and that the separate incidents underlying these prior driving under the influence of alcohol convictions occurred less than 11 months before defendant rear-ended the “Savannah Transit CAT bus.” The State also proved that defendant wrecked his car less than eight months after the “Savannah Transit CAT bus” collision and that this collision occurred after defendant had been notified that his driver’s license had been suspended because of his status as a habitual violator.

The jury found defendant not guilty of driving too fast for conditions, guilty of operating a motor vehicle after having received notice that his driver’s license had been revoked for being a habitual violator, guilty of operating a motor vehicle without proof of insurance, and guilty of operating a motor vehicle without insurance. The jury could not reach a verdict as to the driving under the influence charge. This appeal followed. Held:

1. Defendant’s first enumeration of error contends that “[t]he trial court [erred] in allowing similar acts into evidence where the District Attorney had not announced a clear purpose for the use of such evidence.” Ip addition, defendant argues that the trial court’s “instruction to the jury never limited the jury to one specific purpose for the admission of similar acts.” These assertions are not supported by the record.

During a pre-trial hearing conducted pursuant to the Supreme Court’s directives in Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649), the State proffered the testimony of Officer Darlene Johnson of the Savannah Police Department. Officer Johnson testified that she observed circumstances which compelled her to charge defendant with driving after having been declared a habitual violator. The State’s attorney stated that Officer Johnson’s testimony was relevant to prove defendant’s independent action, plan, scheme, state of mind or course of conduct in operating a motor vehicle after having received notice that his driver’s license had been revoked because of his status as a habitual violator. This explanation not only provided the trial court with relevant purposes for which the similar transaction evidence was being offered, the trial court’s jury charge as to the limited purpose of “other transactions” evidence properly narrowed the scope for which Officer Johnson’s testimony was offered. Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638). To this extent, the trial court’s jury charge instructed as follows: “Ladies and gentlemen, sometimes evidence is admitted for a limited purpose, and now I’m talking about the evidence of other transactions for which defendant is not on trial. Such evidence is to be considered by the jury for the sole issue or purpose to which the evidence is limited and not for any other purpose. The law provides that evidence of other offenses of this defendant that are similar in terms of common design, scheme, plan, course of conduct, motive, location in time or place or other factors to the offense for which the defendant is on trial may be admissible and may be considered for the limited purpose of showing, if it does, the defendant’s state of mind or course of conduct. Such evidence, if any, may not be considered by you for any other purpose. The defendant is on trial for the particular offense or offenses charged in this Indictment only. The Court does not express any opinion as to whether the defendant has had any other offenses. This is a matter solely for your determination.”

The State also proffered the testimony of three Savannah Police Department law enforcement officers who each had arrested defendant on separate occasions in 1993 for serious traffic violations. These officers described defendant’s involvement in four different traffic incidents during 1993, all of which resulted in separate convictions against defendant for driving under the influence of alcohol. Certified copies of these convictions were tendered and admitted into evidence at trial. The State’s attorney stated that these officers’ testimony as well as certified copies of defendant’s prior driving under the influence of alcohol convictions are relevant to prove defendant’s independent act, plan, scheme, state of mind or course of conduct in operating a moving vehicle while under the influence of alcohol to an extent that it was less safe for him to drive. Again, these explanations were sufficient to inform the trial court of relevant purposes for which these officers’ testimony and defendant’s prior driving under the influence of alcohol convictions were being offered. And contrary to defendant’s assertion, the trial court’s “other transactions” jury instruction properly narrowed the limited scope for which this “other transactions” evidence was offered. Kirkland v. State, 206 Ga. App. 27, 28 (3), supra.

2. Defendant next contends “[tjhe trial court erred in failing to differentiate between the similar acts entered in the defendants DUI case and the similar act entered in the defendants habitual violator case.” We do not reach this issue because it was not raised and ruled on at a time when the alleged error could have been corrected.

“If an objection, exception, motion for mistrial, motion in limine or other appropriate action is not taken so that the trial court may correct the error when or before it occurs, it usually cannot be considered on appeal. Appellants must set forth the method, i.e., the objection, exception or motion, by which the error was ‘preserved [for] consideration’ on appeal.” Sumner v. State, 210 Ga. App. 856 (1) (437 SE2d 855). See also Court of Appeals Rule 27 (a) (1). In the case sub judice, we have examined those portions of the trial transcript defendant cited in his statement of the method by which this enumeration was preserved for appellate review and we find no objection pertaining to the issue raised in this enumeration of error. Consequently, since the error alleged could have been raised at trial for remedial action but was not because of defendant’s failure to raise the issue at trial, this enumeration presents nothing for appellate review. See Epps v. State, 168 Ga. App. 79, 81 (4) (308 SE2d 234).

3. The trial court did not abuse its discretion in reopening the evidence to allow the State’s admission of certified copies of defendant’s 1993 convictions for driving under the influence of alcohol. Flynt v. State, 153 Ga. App. 232, 244 (3) (264 SE2d 669).

4. Defendant contends the trial court erred in refusing to mask purported breath test results which appear as marginal notations (not material elements of the crimes charged) on the certified copies of accusations and guilty plea documents that were admitted as proof of defendant’s prior driving under the influence convictions. Defendant argues that these marginal notations should not have been admitted because the State offered no proof regarding the truth or accuracy of the purported breath test results.

Although we share defendant’s concern regarding the admissibility of the breath test notations on the accusations and guilty plea documents in question, our review of the record shows that the case sub judice is a case where overwhelming evidence of defendant’s guilt allows affirmance despite any such error. Groble v. State, 192 Ga. App. 260 (2) (384 SE2d 281).

Decided October 11, 1996

Reconsideration denied October 24, 1996

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, for appellee.

5. In his last enumeration of error, defendant contends the trial court erred in denying his motion for mistrial after the State’s attorney injected, during closing argument, that he was under the influence of alcohol during trial.

“[T]he wide range of discussion permitted in closing argument does have its limitations, the first and foremost of which is the longstanding prohibition against ‘ “the injection into the argument of extrinsic and prejudicial matters which have no basis in the evidence.” ’ Conner v. State, 251 Ga. 113 (6) (303 SE2d 266) (1983), quoting Floyd v. State, 143 Ga. 286, 289 (84 SE 971) (1915). Observance of this constraint is vital to an accused’s right to a fair trial.” Bell v. State, 263 Ga. 776, 777-778 (439 SE2d 480). In the case sub judice, the State’s attorney argued (in response to defendant’s motion for mistrial) that an alcoholic smell about defendant in the courtroom supported her assertion that defendant was under the influence of alcohol. The trial court rejected this assertion because the court did not believe the jury was within range to evaluate any alleged alcoholic smell about the defendant. The trial court then instructed the jury to disregard the State’s attorney’s comments with regard to defendant’s alleged intoxication at trial and reminded the jury “that the statements of Counsel are not evidence and are not to be considered by [the jury] as evidence.”

Although we cannot say with any degree of certainty that the trial court’s curative instructions removed any prejudice which may have been injected by the State’s attorney’s comments, we believe — as demonstrated in this opinion’s recital of evidence — that the jury’s guilty verdicts are supported by overwhelming evidence. See Nash v. State, 179 Ga. App. 702, 704 (5) (347 SE2d 651).

Judgment affirmed.

Johnson and Ruffin, JJ, concur.

       On cross-examination, defendant responded negatively to the State’s attorney’s questions regarding his consumption of alcohol on the day of trial. He also denied that he smelled like alcohol on the day of trial.