text:
    A95A2208.
    FLORIDA INTERNATIONAL INDEMNITY COMPANY v. GUEST et al.
    (464 SE2d 847)
   Smith, Judge.

In this appeal, we must construe a commercial truck policy endorsement excluding coverage for trips exceeding a 150-mile radius of the insured’s principal garage. We conclude that the endorsement applies to exclude coverage for a trip exceeding the 150-mile radius, even if the accident occurs after the vehicle has re-entered the radius.

Florida International Indemnity Company issued a commercial truck policy to James Guest for his logging business. An endorsement attached to the policy, for which a separate premium was assessed, provided as follows: “Commercial Automobile — Exclusive Mileage Limitation: It is agreed that the insurance with respect to the automobile designated in the policy does not apply, if any trips of the automobile exceed a 150 mile radius of the limits of the city or town where such automobile is principally garaged as stated in the policy.”

While Guest was returning from a trip hauling garbage to Panama City, Florida, he collided with Jeffrey Smith. The collision occurred in Jones County, between Gray and Eatonton, Georgia on Highway 129 North. While Panama City is more than 150 miles from Comer, Madison County, Georgia, Guest’s “principal garage,” the site of the accident is well within the 150-mile radius.

Smith sued for personal injuries, and Florida International filed an action seeking a declaration of its obligations under the policy. Florida International moved for summary judgment on several issues, including the trip exclusion endorsement. The trial court denied the motion and entered a final judgment declaring coverage under the policy. Florida International appeals.

Florida International acknowledges that the exclusion is inapplicable to any minimum amount of insurance required under the Georgia No-Fault Law, former OCGA § 33-34-1 et seq., which was in effect at the time of the collision. See Empire Fire &c. Ins. Co. v. Dobbins, 205 Ga. App. 700, 702, n. 2 (423 SE2d 396) (1992). We must decide whether the language at issue here excludes coverage above the no-fault mínimums for the entire trip as a whole when the trip is to a destination beyond the 150-mile radius, or whether coverage resumes (even on a forbidden trip) once the vehicle re-enters the 150-mile radius.

No previous Georgia decision interprets the precise policy language at issue here. In Wallace v. Va. Surety Co., 80 Ga. App. 50 (55 SE2d 259) (1949), the insured was returning from a 725-mile trip but had re-entered the 500-mile radius of the policy exclusion. The case was submitted to the trial court on stipulated facts, and the trial court entered a declaratory judgment in favor of the insurer. The exclusion provided: “In consideration of the premium at which the policy is written, it is agreed that the automobile or automobiles described in the policy will be used and operated entirely within a radius of 500 miles. ... It is further agreed that the company shall not be liable for . . . any accident or loss occurring while the automobile or automobiles described in the policy are being operated outside of the radius of 500 miles.” Id. at 51. The first policy provision was interpreted as a warranty, and the operation of the vehicle beyond the 500-mile radius “constituted a breach of the contract which released the defendant from the obligation to perform its covenants under the contract of insurance in so far as that particular trip was concerned” and authorized the insurer to declare the policy void as to that trip in its entirety. Id. at 53. Judgment in favor of the insurer was therefore affirmed.

In Canal Ins. Co. v. Baldree, 489 F2d 1393 (5th Cir. 1974), the former Fifth Circuit construed under Georgia law an exclusion providing: “insurance applies only while the respective vehicles are operated within the radius indicated for each vehicle. . . . [N]o vehicle is covered if operated beyond its radius. ... It is expressly understood and agreed that occasional trips beyond the radius specified are not permitted.” Id. at 1394, n. 2. Distinguishing Wallace on the basis that the policy in Wallace contained a promissory warranty, the court concluded that, under this policy language, coverage resumed as soon as the vehicle re-entered the “magic circle.” Id. at 1395.

Since no “warranty” appears in the policy at issue here, we must look to the language of the specific exclusion itself, an issue not reached in Wallace. The terms of this exclusion are clearly distinguishable from those in both Canal and Wallace. The Wallace policy provided that there would be no liability for “any accident or loss occurring while the automobile or automobiles described in the policy are being operated outside of the radius of 500 miles.” (Emphasis supplied.) Wallace, supra, 80 Ga. App. at 51. Similarly, the Canal policy provided that “insurance applies only while the respective vehicles are operated within the radius.” (Emphasis supplied.) Canal, supra, 489 F2d at 1394, n. 2. In contrast, the language here excludes coverage “if any trips of the automobile exceed a 150 mile radius.” Rather than focusing on the physical location of the vehicle at the time of the collision, the language of Florida International’s endorsement looks to the destination of the trip on which the collision occurred. This endorsement therefore excludes from coverage a vehicle throughout a trip to and from a destination exceeding the mileage radius, regardless of the location of the vehicle at the time of the collision.

This Court noted in Wallace the general rule that an insurer is discharged if its risk is materially increased. Wallace, supra, 80 Ga. App. at 52-53. A “long-haul” commercial trip could involve greater hazards and risks over the course of the entire trip as a whole, and taking an insured vehicle on a long-haul trip could materially increase the risk to the insurer. Id. at 53. Such hazards and risks could include not only the obvious, such as the greater amount of time spent on the road and resulting fatigue, but also the less obvious, such as the strain of driving over unfamiliar roads or the temptation to continue the homeward journey to its end despite poor driving conditions or lack of sleep.

Decided November 29, 1995.

Michael L. Wetzel, for appellant.

Nelson & Hill, Janet E. Hill, Lane, O’Brien, Caswell & Taylor, Stephen J. Caswell, John O. Bouwsma, for appellees.

“Competent parties are free to choose, insert, and agree to whatever provisions they desire in a contract, including insurance contracts, unless prohibited by statute or public policy.” (Citations and punctuation omitted.) Empire Fire & Marine, supra, 205 Ga. App. at 701. Exclusions such as that in Florida International’s policy are controlled by three competing public interests: “(1) as insureds, to limit the insurer’s risks and thereby keep automobile insurance premiums as low as possible; (2) as members of the public in general to improve safety on the highways; and (3) as accident victims, to have access to insurance funds to satisfy their judgments.” Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 341 (1) (329 SE2d 136) (1985). In balancing these considerations, the Supreme Court gave “great weight to the public policy that innocent persons injured in vehicle accidents should have access to some insurance funds.” (Emphasis supplied.) State Farm &c. Ins. Co. v. Drawdy, 217 Ga. App. 236, 238 (456 SE2d 745) (1995). In this case, as in Drawdy, “because the policy of ensuring some recovery is satisfied, the public’s interests in low premiums and safe highways prevail in the Neese balancing process, resulting in a decision to enforce the exclusion.” Id. at 239. Florida International’s exclusion is enforceable to the extent of any amounts in excess of the required no-fault mínimums, and the trial court erred in denying its motion for summary judgment and entering judgment as a matter of law declaring coverage under the policy in its full amount.

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.

       Guest and his company have gone into default and bankruptcy and have not participated in this appeal.

       The issue presented here did not directly arise in Empire, because there was no question in that case that the vehicle was outside the radius at the time of the loss, and the claim was for first-party theft coverage rather than liability.

       Florida International concedes liability to the extent of the required no-fault coverage, and we therefore do not reach the competing public policy concerns of no-fault and uninsured motorist coverage, extensively discussed in Drawdy.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A95A1562.
    HILL et al. v. DEMERY.
    (464 SE2d 831)
   Andrews, Judge.

This case is before us on appeal from the trial court’s ruling that Grange Mutual Casualty Company (“Grange Mutual”) was not a named party-defendant in the case. We affirm the ruling of the trial court.

The underlying tort claim in this case arose on February 4, 1991, when Demery’s car hit the rear end of Hill’s car while he was stopped in traffic. On October 29, 1992, Hill and his wife sued Demery for lower back injuries which Hill claimed to have received in the accident. Demery’s insurance paid the Hills $15,000, the policy limits of Demery’s policy. The Hills also served Grange Mutual, Hill’s auto insurance company, with a courtesy copy of the complaint.

On March 4, 1993, Grange Mutual filed a motion to dismiss or for summary judgment, contending that the statute of limitation as to Hill’s claim for underinsured motorist benefits had expired. On April 26, 1993, the Hills dismissed their original complaint. They filed a renewal action on April 30, 1993, and served Grange Mutual on May 6, 1993. Grange Mutual again filed a motion to dismiss or for summary judgment, which was denied. Grange Mutual filed an application for immediate review to the Court of Appeals, which was also denied.

On October 31, 1994, the case was called for trial. Before the start of trial, the court ruled that Grange Mutual was not a party to the suit because it had at all times exercised its rights in the name of the defendant and had not made itself a party to the proceedings. The case went to trial with Demery as the sole defendant and the jury returned a verdict for Demery.

The Hills filed a motion for new trial based on general grounds and the court’s ruling that Grange Mutual was not a named party. The trial court denied the motion for new trial and this appeal followed.

OCGA § 33-7-11 (d) provides “the insurance company shall have the right to file pleadings and take other action allowable by law in the name of ‘John Doe’ or itself.” The status of the insurance company “is determined by the nature of its filing election before the trial court.” Langford v. Royal Indem. Co., 208 Ga. App. 128, 129 (430 SE2d 98) (1993). When the insurance company files an answer in its own name rather than in the name of the underinsured motorist or John Doe, then it assumes the status of a named party as a matter of law. Langford, supra; Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 169 (268 SE2d 676) (1980).

The Hills contend that once Grange Mutual filed the motion to dismiss raising the issue of the statute of limitation, it elected to defend in its own name and, therefore, became a party in the lawsuit. Grange Mutual argues that it never filed an answer and never filed pleadings in its own name, but always on behalf of Demery. Further, Grange Mutual points out that in the motion to dismiss it specifically stated that it was exercising its option to appear in the case in the name of the underinsured motorist and was not waiving that option by the filing of the motion. In addition, the motion stated that it was not raising a policy or contractual defense, but merely a statute of limitation defense. In any event, Grange Mutual contends that even if it had defended in its own name, it had the right to withdraw that election and defend only in the name of the underinsured motorist at trial.

The Hills argue that the statute of limitation defense was available only to Grange Mutual in its own name. Further, they point out that the caption of Grange Mutual’s application for immediate review showed “Grange Mutual Casualty Co.” as the petitioner.

The Hills cite Maxwell v. State Farm &c. Ins. Co., 196 Ga. App. 545 (396 SE2d 291) (1990), as authority for their proposition that to hold that Grange Mutual did not become a named party defendant would be to elevate form over substance. In Maxwell, the insurance company filed an answer in the name of John Doe. But, the defenses raised in the answer were not only as to John Doe’s tort liability but also defenses as to the insurance company’s contractual liability. The appellants claimed that since the insurance company had filed in the name of John Doe, it was not a party to the case and had no right to seek an adjudication of its liability on the contract. The Maxwell court held that the insurance company did become a named party defendant, even though the pleadings were filed in the name of John Doe, and therefore had the right to contest liability under the policy as well as liability of the tortfeasor. Maxwell, supra at 546.

The issue in the instant case is slightly different. Grange Mutual was not seeking to be allowed to contest contractual liability under the policy. Initially, it raised the issue of a statute of limitation bar to the action. However, the Georgia Supreme Court’s decision in Hobbs v. Arthur, 264 Ga. 359 (444 SE2d 322) (1994), resolved that issue before trial. Grange Mutual raised no other defenses as to contractual liability. Further, Grange Mutual never filed an answer and always stated that it was not electing to defend in its own name and did not intend to waive that election by raising the issue of the statute of limitation. This Court held in Langford, supra, that the actions of the insurance company would have made it a party to the action even if it had filed an answer only in the name of John Doe. But, in Langford, the company did file an answer and amended answer in its own name and, in addition, requested that the claim against it be dismissed, filed in its own name a request for discovery and a motion for summary judgment, and elected to litigate the question of coverage under the policy. Langford, supra at 129. That is a very different situation from the one in the instant case.

Moreover, in Keenan v. Hill, 190 Ga. App. 108 (378 SE2d 344) (1989), this Court stated: “We see no reason, however, to require an uninsured motorist carrier to continue to proceed in its own name simply because it elected to do so initially.” Keenan, supra at 109. Although Keenan involved an insurance company that had settled its claim with the plaintiff prior to trial and was dismissed from the proceedings, the same reasoning also applies to this case. The only issue as to contractual liability had been decided and Grange Mutual was defending only in the tort case against Demery at trial.

Decided November 15, 1995

Reconsideration dismissed November 30,1995

Kent, Williamson & Brannon, A. Martin Kent, for appellants.

Whelchel, Brown, Readdick & Bumgartner, John E. Bumgartner, for appellee.

Accordingly, we find that Grange Mutual did not become a named party defendant by initially raising a statute of limitation defense in the motion to dismiss or for summary judgment. Further, even if the raising of this defense could be construed as electing to proceed in its own name, once that issue was decided, there were no further issues as to Grange Mutual’s contractual liability and it could elect to withdraw prior to trial and defend only in the tort case against Demery. Keenan, supra at 109.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur in the judgment only.


author: Beasley, Chief Judge.

text:
    A95A1749.
    HOWARD v. THE STATE.
    (465 SE2d 281)
   Beasley, Chief Judge.

On December 10, 1994, Howard was charged with driving under the influence of alcohol to the extent it was less safe to drive, OCGA § 40-6-391 (a) (1), driving while his blood alcohol concentration was 0.10 grams or more, OCGA § 40-6-391 (a) (4), and improper lane usage, OCGA § 40-6-48. Howard’s breath test showed a blood alcohol concentration of 0.119 grams, and he was issued an “Official Notice of Intent to Suspend License.” An administrative hearing was held pursuant to OCGA § 40-5-67.1 (g) to determine whether to rescind or sustain the suspension.

1. Howard contends the trial court erred in denying his motion to dismiss the criminal charges because any prosecution after the administrative suspension violated the double jeopardy provisions of the federal and state constitutions. See Fifth Amendment to the United States Constitution; Ga. Const. of 1983, Art. I, Sec. I, Par. XVIII; OCGA §§ 16-1-6, 16-1-7, 16-1-8. This enumeration is controlled by our decision in Nolen v. State, 218 Ga. App. 819 (463 SE2d 504) (1995), in which we rejected a similar argument.

2. Howard also contends the court erred in failing to grant his motion in limine to exclude the results of his breath test because he was not fully advised of his right to an independent test as required by OCGA § 40-6-392. He admits he was informed that he could have an independent chemical test but argues the notice was deficient because it did not specify that the independent test could be of his “blood, breath, urine, or other bodily substances” nor that the independent test “may be performed by a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing.” After his implied consent rights were read to him, Howard did not request an independent test and submitted to the State-administered breath test.

Howard has cited the recent case of Martin v. State, 217 Ga. App. 860 (460 SE2d 92) (1995) (cert. granted Oct. 20, 1995; Supreme Court case no. S95G1753), for the proposition that the implied consent warning must specifically state the independent test could be of his “blood, breath, urine, or other bodily substances.” In Martin, the defendant had been advised “ ‘[a]fter submitting to required testing you are entitled to additional chemical tests at your own expense from personnel of your own choosing.’ ” (Emphasis in original.) Id. The court determined that this was insufficient not because it failed to properly advise Martin of his rights to an independent test, but because a 1995 amendment to OCGA § 40-5-67.1 (b) required specific language that included: “ ‘you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances. . . .’” That amendment specifically stated it applied to all cases pending on its effective date, April 21, 1995. As Martin’s case was then pending, the amendment required reversal.

However, the General Assembly has since amended OCGA § 40-5-67.1 to include a subsection (b.1), which provides that the new version of OCGA § 40-5-67.1 (b) shall apply only to cases in which the offense was committed on or after April 21, 1995. 1995 Act EX1 (HB 10EX, effective upon Governor’s signature, August 18, 1995). Subsection (b.l) specifically applies to all cases pending on the date it became effective by the Governor’s signature, August 18, 1995. 1995 Act EX1, § 2. See Miller v. Ga. Ports Auth., 217 Ga. App. 876, 878 (2) (460 SE2d 100) (1995). It is OCGA § 40-5-67.1 (b) which mandates specific language be used and upon which Martin relied. Any application of that subsection to a defendant such as Howard, whose offense was committed prior to April 21, 1995, and whose case was pending on August 18, 1995, has been effectively repealed by the General Assembly. “An appellate court applies the law as it exists when the case is before it. [Cit.]” Rucker v. State, 191 Ga. App. 108, 109 (381 SE2d 91) (1989). The law as it stands does not apply the mandatory language of OCGA § 40-5-67.1 (b) (2) to Howard, and that amendment has no effect on his case.

Before the 1995 amendment to OCGA § 40-5-67.1 (b), the requirements for the implied consent warning were found in both OCGA §§ 40-5-67.1 (b) and 40-6-392 (a) (4). See State v. Leviner, 213 Ga. App. 99, 101 (3) (a) (443 SE2d 688) (1994). As the law then stood, “‘(a) defendant [was] not entitled to a warning which tracks the exact language of the implied consent statute.’ . . . [Cits.]” State v. Causey, 215 Ga. App. 85, 86 (449 SE2d 639) (1994). The warning was not judged on its form, but its content; it had to inform the suspect that he could have an additional test by a qualified person of his own choosing. Id.; State v. Harrison, 216 Ga. App. 325 (453 SE2d 820) (1995).

It is uncontested the arresting officer simply read Howard his implied consent warning from a pre-printed card. The warning given Howard pertinently stated: “Georgia law requires you to submit to state-administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. . . . After submitting to the required testing, you are entitled to additional chemical tests at your own expense and from personnel of your own choosing.”

The content of this warning was sufficient to advise Howard of his right to an independent test. Under the applicable law, there was no requirement that the warning specify the independent test could be of the defendant’s “blood, breath, urine, or other bodily substances.” Accord Martin, supra. The warning clearly mentioned those substances when it stated what “chemical tests” could be performed at the State’s behest. In that context, advising Howard that he could have independent “chemical tests” leaves no doubt what substances may be tested.

Nor does the failure to state that the independent tests may be performed by “qualified” personnel render the warning insufficient; such an omission cannot “be construed as preventing him from making ‘an intelligent choice to submit to a chemical test. . . .’ [Cit.]” Howard v. Cofer, 150 Ga. App. 579, 580-581 (2) (258 SE2d 195) (1979). Similarly, failure to specify the professional titles of those qualified to perform the tests does not prevent Howard from making an intelligent choice. The crucial factor that must have been communicated to Howard about the persons who could perform an independent test was that they be of his choosing. See Holcomb v. State, 217 Ga. App. 482, 483 (1) (458 SE2d 159) (1995); Causey, supra at 85. The warning fully advised him of this. As Howard did not ask for any additional test there was no obligation to advise him who may be qualified to conduct such a test. Cofer, supra at 581 (2). He was afforded the opportunity to obtain an independent test and was duly advised of his statutory rights. State v. Griffin, 204 Ga. App. 459, 461 (2) (419 SE2d 528) (1992).

Decided November 13, 1995

Reconsideration denied November 30, 1995

Gordon G. Greenhut, for appellant.

Cheryl F. Custer, District Attorney, Michael M. Hawkins, S. Dabney Yarbrough, Assistant District Attorneys, for appellee.

Robert W. Chestney, Kenneth W. Mauldin, amici curiae.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: Johnson, Judge.

text:
    A95A2005.
    A95A2006.
    A95A2007, A95A2008.
    THE STATE v. HOLCOMB. THE STATE v. DAVIS. THE STATE v. DAVIS; and vice versa.
    (464 SE2d 651)
   Johnson, Judge.

Donald Chadwick Davis and Robert J. Davis were arrested on December 18, 1994. Ronald Allen Holcomb was arrested on December 20, 1994. All were charged by accusation with driving under the influence of alcohol to the extent it was less safe to drive. OCGA § 40-6-391 (a) (1). All three subsequently filed motions to suppress the results of state-administered intoximeter tests, because they were not fully advised of their rights to an independent test performed by qualified personnel, as required by OCGA § 40-6-392 (a). The trial court granted the motions to suppress in April 1995 and the state appeals. Case Nos. A95A2005, A95A2006 and A95A2007 present precisely the same issue and have been consolidated for consideration on appeal. Case No. A95A2008, in which Donald Chadwick Davis challenges the propriety of the underlying stop, will be addressed separately.

Case Nos. A95A2005, A95A2006 and A95A2007

In Howard v. State, 219 Ga. App. 228 (465 SE2d 281) (1995), this Court analyzed various recent legislative enactments concerning “implied consent” requirements in driving under the influence of alcohol cases. In Howard, we concluded that OCGA § 40-5-67.1 (b), which mandates that specific language be read upon arrest, only applies to those cases in which the offense was committed on or after April 21, 1995. In essence, the Court approved of the legislature’s August abrogation of the retroactive application of the April amendment. Because the offenses in these cases were committed prior to April 21, 1995, strict compliance with the warning was not required. The failure to inform Holcomb, Davis and Davis that the independent tests may be performed by “qualified” personnel did not render the warning legally insufficient. See Howard v. Cofer, 150 Ga. App. 579, 580-581 (2) (258 SE2d 195) (1979). Applying the law as it now exists, we conclude that the trial court erred in granting the motions to suppress and reverse those rulings. See Rucker v. State, 191 Ga. App. 108, 109 (1) (381 SE2d 91) (1989).

Case No. A95A2008

Donald. Chadwick Davis complains that the court erred in denying his motion to suppress evidence on the ground that the police officer’s stop of his car, after observing him cross over the solid white line to his right into the emergency lane and then drift left across numerous lanes on 1-85 without signalling or ascertaining whether it was safe to do so, was pretextual.

Davis notes that the traffic citation he received at the time of his arrest charged him only with driving under the influence of alcohol. However, the accusation returned by the solicitor charged Davis with violating OCGA § 40-6-48, failure to maintain lane, in addition to driving under the influence of alcohol. Therefore, the offense is properly before the court. See Ellerbee v. State, 215 Ga. App. 102, 104-105 (3) (449 SE2d 874) (1994). Additionally, even if the officer had not cited or the solicitor ultimately accused Davis of the offense of failure to maintain lane, his driving could have constituted probable cause for the officer’s stop. See Hines v. State, 214 Ga. App. 476, 477 (448 SE2d 226) (1994).

“When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) Allenbrand v. State, 217 Ga. App. 609 (1) (458 SE2d 382) (1995). The evidence presented at the motion to suppress hearing in the instant case is that at 3:00 a.m. Officer Chris Myruk of the DeKalb County Police Department observed Davis driving in the right lane, northbound on 1-85. After watching him drift over a solid white line into the emergency lane, Davis drifted across several lanes without signalling, ultimately reaching the far left lane. OCGA § 40-6-48 (1) provides: “A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” Even though the officer agreed that traffic was light on the highway at 3:00 a.m., he was prompted to stop Davis because he feared that Davis’ own safety was being jeopardized by his driving. The trial court did not err in finding that the traffic stop was not pretextual and in denying the motion to suppress on that ground. See Allenbrand, supra at 610.

Decided November 30, 1995.

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, C. Christopher Flinn, Chris M. Roshong, Assistant Solicitors, for the State.

Alan I. Begner, for Ronald A. Holcomb.

W. Henry Toler III, for Robert J. Davis.

John D. Stone, for Donald C. Davis.

Judgments reversed in Case Nos. A95A2005, A95A2006 and A95A2007. Judgment affirmed in Case No. A95A2008.

Birdsong, P. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A95A2234.
    TIDWELL v. THE STATE.
    (464 SE2d 834)
   Smith, Judge.

Thomas Tidwell was convicted of two counts of child molestation involving the same victim. He appeals his conviction enumerating 13 errors. For the reasons that follow, we affirm.

On December 16, 1992, school authorities notified the Department of Family & Children Services (“DFCS”) about a possible child abuse case involving the victim, B. C. B. C., a ten-year-old girl, was not initially cooperative with State officials but later that same day confided to her mother details of sexual abuse involving Tidwell. The next day, she accompanied her mother to the sheriff’s department and told several law enforcement officials what Tidwell had allegedly done.

At trial, the State presented evidence of two similar transactions: Tidwell’s prior sodomy conviction involving a male victim and an uncharged child molestation incident involving another female child. The jury heard the testimony of 14 witnesses including Tidwell and his girl friend. No physical evidence was offered to support the claims; the victim, never went to a hospital for a medical examination.

1. Tidwell contends the trial court erred by not declaring Georgia’s Child Hearsay Statute, OCGA § 24-3-16, unconstitutional on its face because the statute denies the right of confrontation. He also contends the Child Hearsay Statute is unconstitutional as applied in this case because the court permitted child hearsay testimony without properly finding sufficient indicia of reliability regarding the victim’s out-of-court statements.

(a) Because the Georgia Supreme Court has repeatedly upheld the facial constitutionality of this statute, we find this argument without merit. Allen v. State, 263 Ga. 60 (2) (428 SE2d 73) (1993); Reynolds v. State, 257 Ga. 725, 726 (3) (363 SE2d 249) (1988); Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987).

(b) Tidwell premises his second constitutionality attack on his conclusion that the trial court failed to examine fully the reliability of the child’s declarations during the pretrial hearing and the trial. Tidwell argues the trial court improperly admitted child hearsay testimony because it failed to examine the declarations in terms of the factors listed in Gregg v. State, 201 Ga. App. 238, 240 (411 SE2d 65) (1991). Here, our examination of the record and transcripts indicates the court properly determined there were sufficient indicia of reliability, as required by OCGA § 24-3-16, of the victim’s out-of-court statements. Tidwell has not offered evidence that the victim’s accounts of events as told to her mother, to sheriff’s department officials, to DFCS representatives, in her grand jury testimony, and in her trial testimony were not consistent. Additionally, the victim testified as a witness and was subject to both direct examination and cross-examination. Tidwell had ample opportunity to challenge her description of events, memory, truthfulness, and consistency. Moreover, the factors set forth in Gregg, supra at 240, are not intended to be mechanically applied as some sort of magic formula; the trial court has broad discretion in determining the admissibility of evidence.

Tidwell also contends that the trial court must make a finding of reliability prior to the admission of testimony. We rejected this argument in Gregg, supra at 241. While the court must find sufficient indicia of reliability, such a finding is not a condition precedent to the admissibility of testimony. OCGA § 24-3-16’s requirement of “indicia of reliability” is satisfied if “after both sides have rested at trial, competent evidence of record exists which will support a finding of ‘indicia of reliability.’ ” Gregg, supra at 239 (3). Accordingly, we find no merit to this enumeration.

2. In several enumerations, Tidwell challenges the trial court’s admission of similar transaction evidence relating to two offenses. The court conducted a Uniform Superior Court Rule (“USCR”) 31.3 (B) hearing and found that the State’s proffer constituted a sufficient showing to justify the admission of evidence relating to two independent offenses, Tidwell’s prior sodomy conviction involving the male victim and the uncharged child molestation incident. See Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). After examining the record and transcripts, we are satisfied that the State adequately made the three required affirmative showings outlined in Williams, supra at 642 (b).

(a) Tidwell claims his conviction for sodomy was totally dissimilar because it involved a 16-year-old male victim. The record reveals, however, that the sodomy victim, although a teenager, was mentally impaired and functioned at a mental age between five and seven at the time of the molestation and was coerced by Tidwell into participating in oral sex. Moreover, “[t]he sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them, is of sufficient similarity to make the evidence admissible.” Oller v. State, 187 Ga. App. 818, 820 (371 SE2d 455) (1988). Sufficient similarity exists between the prior crime to which Tidwell pleaded guilty and the offenses charged here.

(b) Tidwell also argues, citing Moore v. State, 254 Ga. 674, 676 (333 SE2d 605) (1985), that the admission of evidence concerning the prior sodomy conviction constituted double jeopardy. In Moore, the basis for the constitutional objection was that the defendant had been acquitted of the prior crime, and it was thus improper to have allowed a witness’s adverse testimony of a crime for which a defendant had been acquitted. Here, there is no question that Tidwell was the perpetrator of the separate offense to which he pleaded guilty, and sufficient similarity to the earlier crime was shown to satisfy both requirements of Moore. Id. at 676. Tidwell’s reliance on Moore therefore is misplaced.

(c) The trial court did not err in ruling that Tidwell received sufficient notice of the uncharged similar transaction despite the State’s failure to specify an exact date for the molestation. He argues the notice provided to him regarding the uncharged child molestation incident lacked the requisite amount of specificity, failing to satisfy USCR 31.3 by not giving an exact date of the alleged offense. USCR 31.3 (B) requires the prosecution to file a written notice of an intent to present evidence of similar transactions, stating the “transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced.” Id. Tidwell claims it was impossible for him to prepare a defense because the State failed to provide adequate information.

The record shows the State’s written notice provided the transaction, county, and name of the victim but gave only the general time frame of “during 1984 or 1985.” The transcripts show that neither the victim nor her grandmother knew the specific date when Tidwell allegedly engaged in inappropriate touching, and they could provide only the general time period. Since the State did not have a specific date of the similar transaction, it complied with USCR 31.3 by providing Tidwell with the information it had. Eidson v. State, 182 Ga. App. 321, 322 (2) (355 SE2d 691) (1987).

(d) Contrary to Tidwell’s contention, we find no error in the order in which the evidence was presented. The trial court permitted the testimony of five witnesses before B. C. testified. Two witnesses testified as to B. C.’s hearsay declarations under the Georgia Child Hearsay Statute; one witness testified to the hearsay declarations of both similar transaction victims; and both similar transaction victims testified. Tidwell argues that by virtue of this order of testimony, he suffered manifest prejudice. In Gilstrap v. State, 261 Ga. 798 (410 SE2d 423) (1991), the Georgia Supreme Court expressed concern regarding the presentation of evidence of nine similar transactions before any evidence supporting the case-in-chief against the defendant. The Supreme Court noted the procedure followed in Gilstrap created a substantial possibility the jury could have settled upon the defendant’s guilt before hearing a single witness to the indicted crime. Gilstrap, supra at 799 (2).

A trial court has discretion as to the order of admission of evidence, and the Georgia Supreme Court declined in Gilstrap to determine the outer limit of the trial court’s discretion. Id. In this case, the jury heard evidence relating to the indicted crimes from the first two witnesses, then testimony from the next three witnesses regarding similar transactions. Based on a review of the record and transcripts, we do not find the trial court abused its discretion or created a substantial possibility of prejudice to Tidwell by admitting the evidence in this order, especially since the first two witnesses testified about the indicted crime.

3. Tidwell claims the court erred by permitting the victim’s mother to testify about the victim’s level of intelligence and her knowledge of right and wrong. Over objection, the court permitted the victim’s mother to testify about her daughter’s mental condition. Although Tidwell claims the mother improperly testified as to her daughter’s knowledge of right and wrong, the transcript shows the witness never responded to such a question. A witness may testify to facts about which she has personal knowledge. Allowing the mother to testify about her child’s mental abilities was not improper, especially since the child herself later testified, and the jury could make its own determination of her mental abilities.

We reject Tidwell’s contention that the mother’s testimony about her daughter’s mental abilities constituted improper bolstering and invaded the jury’s province of determining the credibility of the victim’s testimony. We also reject Tidwell’s contention that Roberson v. State, 214 Ga. App. 208, 210 (4) (447 SE2d 640) (1994) controls. This Court reversed Roberson’s convictions because the court permitted a witness to give her opinion as to the victims’ credibility. Roberson is inapplicable here because the victim’s mother never testified about her daughter’s truthfulness or credibility. She merely opined that although her daughter is a smart child she “needs a little longer to catch on to some things.”

4. Tidwell argues the trial court erred by denying his motion for a mistrial after the victim’s mother testified as to Tidwell’s intoxication. The record shows that after the offending testimony, Tidwell immediately moved for a mistrial, which the court denied. The court’s curative instructions instructed the jury to disregard the irrelevant testimony. Tidwell failed to request further instructions or renew his motion for a mistrial.

If a court overrules a motion for a mistrial and gives corrective instructions, and thereafter counsel fails to request further instructions or renew the motion for a mistrial, an enumeration raising this ground is without merit. Chandler v. State, 143 Ga. App. 608, 609 (2) (239 SE2d 158) (1977). This is not a case where the statement was so prejudicial that no instruction of the trial court could eradicate the statement from the jurors’ minds. See Counts v. Moorehead, 232 Ga. 220, 221 (206 SE2d 40) (1974). Accordingly, no reversible error exists.

5. Tidwell argues the court erred by precluding him from presenting evidence regarding the victim’s sexual contact with other persons.

Generally, evidence of a prior molestation or previous sexual activity on the part of the victim is not admissible in a child molestation case to show either the victim’s reputation for nonchastity or preoccupation with sex. See Woods v. State, 187 Ga. App. 105 (1) (369 SE2d 353) (1988). This type of evidence may be admissible for the limited purpose of establishing other possible causes for behavioral symptoms typical of the child sexual abuse accommodation syndrome or to explain certain medical testimony introduced at trial. See Hall v. State, 196 Ga. App. 523, 524 (2) (396 SE2d 271) (1990).

Here, unlike Hall, there was no expert testimony concerning the child sexual abuse accommodation syndrome, nor was any medical evidence admitted; Tidwell did not seek to offer evidence that another person molested B. C. Therefore, Hall is factually distinguishable.

The only purpose for which Tidwell sought to introduce evidence was to show the victim’s flirtatious conduct and “prematurely seductive behavior toward men.” Moreover, the court evaluated counsel’s proffered evidence and deemed portions admissible, permitting the victim’s grandmother to testify about contradictory statements the victim made to her and allowing Tidwell’s girl friend to testify about the victim’s flirtatious conduct with Tidwell and other men. Tidwell fails, under the analysis of Hall, supra, to demonstrate that any testimony offered was improperly excluded; the trial court did not err in excluding the testimony at issue.

6. Tidwell claims the court erred by failing to ensure that crucial photographic evidence went out with the jury. During the trial, Tidwell introduced three photographs taken at Easter time, purporting to show he had no contact with the victim at the time the molestation had occurred.

Tidwell contends the foreman attempted to inform the court that the jury did not have the three photographs when the foreman informed the court the jury lacked physical evidence other than the indictment. The transcript contains no evidence, however, that the court excluded any evidence introduced and admitted at trial or that the jury did not have these three photographs when it deliberated. Accordingly, we find this argument is mere speculation.

7. Tidwell claims the trial court erred by failing to sequester the victim’s mother during the hearing on his motion for a new trial. Tidwell argues the purpose of the motion hearing was to present newly discovered evidence, a letter by the victim, B. C., to Tidwell in prison. In that letter, she recanted her trial testimony and earlier statements against him. Tidwell contends that B. C.’s mother and stepfather were subjecting her to pressure during the trial and that when afforded an opportunity to recant, B. C. did just that.

Although Tidwell requested invocation of the rule on sequestration, the court invoked the rule with one exception and permitted the victim’s mother to remain. The transcript shows the victim was feeling apprehensive about her upcoming testimony and was hanging tightly on to her mother. The court allowed her mother to remain in the courtroom because the victim wanted her mother present, not because the mother desired to remain. At the motion hearing, the victim testified she wrote the exculpatory letter because she was being pressured by Tidwell’s girl friend, now his wife.

Decided November 15, 1995

Reconsideration denied November 30, 1995.

John L. Strauss, for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.

Here the court permitted the victim’s mother to remain in the courtroom during her daughter’s testimony even though the victim’s mother later testified in the same hearing. OCGA § 24-9-61 provides for sequestration of witnesses only “as far as practicable and convenient, but no mere irregularity shall exclude a witness.” Id. We have noted that “OCGA § 24-9-61 provides for sequestration of witnesses upon motion by a party, but the trial court has sound discretion to make exceptions to that rule, and only abuse will warrant reversal.” (Citations and punctuation omitted.) Lee v. State, 214 Ga. App. 164 (447 SE2d 323) (1994). Under the facts of this case, we find no abuse of the court’s discretion.

8. We have considered Tidwell’s remaining enumerations and find them utterly without merit.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

       The Supreme Court transferred this appeal because it determined that the constitutional issues raised involved the application of well-settled principles and that this appeal brought no new issues within its jurisdiction.

       “The factors which the court may consider, when applicable, include but are not limited to the following: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, . . . and the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child. [Cits.]” (Emphasis in original.) Gregg, supra at 240.

       We reject the State’s contention that Tidwell has waived any error; the record shows that Tidwell repeatedly objected to the use of any and all similar transaction evidence.


author: Ruffin, Judge.

text:
    A95A1469.
    EDWARDS v. THE STATE.
    (464 SE2d 851)
   Ruffin, Judge.

Johnnie Edwards was convicted of one count of trafficking in cocaine. Without conducting a presentence hearing, the court sentenced Edwards to 25 years to serve and a one million dollar fine. Edwards enumerates nine errors. For the reasons which follow, we affirm.

Just before midnight on February 11, 1992, Lieutenant Robbie Bishop observed a Chevrolet Caprice passing his parked patrol car at a very slow speed on Interstate 75 North. Bishop followed the vehicle and determined it was proceeding at 45 mph in a 65 mph zone. Bishop testified that the reason he decided to pull the car over was because it had no tag and that he routinely stopped cars traveling without license tags displayed. Upon stopping the vehicle, Bishop noticed the hands of Frederick Rawls, the driver, were trembling and his whole body was shaking. Bishop testified that based on his experience, the behavior of an individual stopped for suspected possession of drugs differs from the behavior of someone stopped for an improper display of a tag. He also observed a peculiar bulge in the back seat cushion. Because of the apparent nervousness of the driver, the unusual bulge in the back seat, and the discovery that the driver and the vehicle were from different states, Bishop requested consent to search the vehicle, and Edwards, the sole passenger and the vehicle owner, consented to the search. Through a cursory search, Bishop was able to determine that the bulge was not caused by a broken spring and radioed for help. Bishop testified Edwards and Rawls agreed to wait while his back-up arrived. Bishop testified Edwards also gave his consent to Officer Johnson’s assistance with the search for drugs. Their subsequent search disclosed that the rear seat was bolted down by special star type screws. A blue coat discovered in the trunk contained a star socket that matched the bolts in the rear seat. After both men had been read their Miranda rights, a deputy asked who owned the blue coat, and Edwards stated it belonged to him. Officers discovered 11 kilograms of cocaine concealed behind the rear seat.

1. Edwards contends the court’s failure to conduct a presentence hearing violated OCGA § 17-10-2 (a).

Without holding a presentence hearing, the trial court imposed the mandatory minimum sentence, 25 years, for cocaine trafficking under OCGA § 16-13-31 (a) (1) (C). The State claims the court’s noncompliance with OCGA § 17-10-2 (a) was harmless error because the remedy would be to remand the case for resentencing, which would be a waste of judicial resources given that the court would be required to resentence Edwards to the same sentence already imposed.

A court is required to conduct a presentence hearing in a felony case under OCGA § 17-10-2 (a). “The judge is to give opportunity for the parties to offer additional evidence and argument in extenuation, mitigation, and aggravation of punishment. It is mandatory. [Cits.]” Jefferson v. State, 205 Ga. App. 687 (2) (423 SE2d 425) (1992). In this case, however, because the sentence which the court imposed was the statutory minimum sentence under OCGA § 16-13-31 (a) (1) (C), the court did not err.

2. Edwards claims the court erroneously denied his motion for a mistrial because the State made numerous comments concerning his failure to testify and also made improper inflammatory remarks. Edwards challenges the propriety of eight statements used in the State’s closing arguments.

(a) First, we examine the alleged references to Edwards’ failure to testify. Two of the prosecutor’s statements alluded to Edwards’ failure to respond to statements made by the investigating officer at the scene of the investigatory traffic stop. The record indicates that while Bishop was conducting the stop, he told Edwards that he noticed “a large bulge, sticking way out.” Edwards was not under arrest and elected to say nothing in response. In his closing argument, the prosecutor twice referred to Edwards’ failure to respond to the officer’s statement. The prosecutor pointed out that Edwards neither professed his ignorance about the bulge nor asked the officer what he was talking about when the officer said he noticed a large bulge.

The State contends the two statements should not be construed as comments on Edwards’ silence because Edwards had not invoked his right to remain silent but instead, had volunteered information and engaged in conversation with Bishop, the investigating officer.

Pre-arrest silence has not been accorded the same federal constitutional protection as post-arrest silence. See Doyle v. Ohio, 426 U. S. 610 (96 SC 2240, 49 LE2d 91) (1976) (holding that the government cannot use post-arrest silence against a defendant because Miranda warnings give implicit assurances that silence will not be used against a person, and accordingly, it would be fundamentally unfair and a violation of due process to allow a defendant’s silence to be used to impeach him at trial); Jenkins v. Anderson, 447 U. S. 231, 239 (100 SC 2124, 65 LE2d 86) (1980) (holding that the government can use pre-arrest silence for impeachment purposes against a defendant because no government action induced the silence). Based on Jenkins, supra, there is no federal constitutional basis for excluding the State’s use of Edwards’ pre-arrest silence against him. Accordingly, the State’s references to Edwards’ pre-arrest silence were properly permitted.

Edwards also contends Mallory v. State, 261 Ga. 625 (409 SE2d 839) (1991) entitles him to a mistrial. In Mallory, the trial court permitted the State to introduce the defendant’s pre-arrest statement, made without Miranda warnings, as to why he had not come forward to explain his innocence when he knew he was under investigation. Id. In his pre-arrest statement, Mallory responded that he was waiting for the police to come to him. The Supreme Court determined this statement was improperly used against Mallory on cross-examination. Id. “OCGA § 24-3-36 provides that ‘Acquiescence or silence, when the circumstances require an answer, a denial, or other conduct, may amount to an admission.’ We take this opportunity to hold that in criminal cases, a comment upon a defendant’s silence or failure to come forward is far more prejudicial than probative. Accordingly, from the date of publication of this opinion, December 26, 1991 . . . such a comment will not be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense.” Id. at 630.

However, Mallory is distinguishable here because it analyzed impeachment of a defendant by the use of a defendant’s failure to contact police prior to an arrest. In this case, Edwards did not take the stand in his own defense and was not, therefore, improperly confronted with his pre-arrest silence and failure to supply an explanation regarding the bulge in the rear seat of his vehicle. Accordingly, we do not find Mallory dispositive.

Further, “[r]eversal for improper comment by the prosecutor requires a finding either that 1) the prosecutor’s manifest intention was to comment on the accused’s failure to testify, or 2) the remark was of such a character that a jury would naturally and necessarily take it to be a comment on the accused’s failure to testify. Ranger v. State, 249 Ga. 315, 319 (290 SE2d 63) (1983).” LeMay v. State, 265 Ga. 73, 75 (4) (453 SE2d 737) (1995). In this case, the prosecutor did not comment on Edwards’ failure to testify, but rather, on Edwards’ failure to respond to the officer’s initial questions prior to arrest about the obvious bulge in the back seat of his vehicle. Our review of the record and transcript does not show a manifest intention to comment on Edwards’ failure to testify at trial or that the jury would have naturally and necessarily interpreted the remarks in that manner.

(b) Next, we examine the State’s references to Edwards’ failure to present certain evidence. The transcript indicates that Edwards contended he was an innocent man being unwittingly used by Rawls and that he had no idea cocaine was concealed in his vehicle. During closing argument, the prosecutor made four references to Edwards’ failure to present evidence about his relationship with Rawls and the purported purpose of the trip. The State noted Edwards did not offer: 1) an explanation as to why he needed to give Rawls a ride, 2) any evidence of Rawls’ relationship to him, 3) any evidence that the bulge was not visible to him, and 4) any evidence from or about his daughter, whom he told police he had dropped off in Atlanta.

It is permissible for the State to “argue to the jury the inferences to be drawn from the defendant’s failure to produce witnesses . . . who allegedly would give evidence favorable to the defendant.” (Citations omitted.) Shirley v. State, 245 Ga. 616, 618 (266 SE2d 218) (1980). Thus, it was entirely appropriate for the prosecution to point out inconsistencies in Edwards’ defense strategy.

(c) Edwards argues the State improperly commented on his objection to the admission of the cocaine into evidence. At the outset, we reject the State’s contention that Edwards failed to preserve this objection because the transcript shows defense counsel objected. See Hall v. State, 180 Ga. App. 881 (350 SE2d 801) (1986). However, even assuming the State’s comment was improper, we cannot say it is highly probable that the improper remark contributed to the verdict. Id. at 885. Thus, even if we were to determine the State’s argument was improper and inflammatory, such argument did not likely affect the verdict and Edwards’ conviction must be affirmed. Miles v. State, 183 Ga. App. 346 (358 SE2d 904) (1987) (holding that although State’s argument was improper and inflammatory, conviction was affirmed because it probably did not affect the verdict).

(d) Next we address Edwards’ contention that the State argued that if he were not convicted, three-year-olds will be gunned down in the street. Edwards claims he was entitled to a mistrial because of the allegedly improper and inflammatory comment.

According to the transcript, the prosecutor actually stated: “You know that stuff right there was destined to be one of those news stories in Cleveland, Ohio. It is so much cocaine, that if that cocaine had made it to Cleveland, Ohio, the news stories would have been out there about cocaine fights, and a three-year-old child mowed down.” The prosecutor also stated: “Now, you know all of us know what this stuff is responsible for. It’s hard not to go a week without watching the local news or the national news, for that matter, and hearing about a three-year-old child, including three-year-old black children, being mowed down in the inner cities —.” Edwards moved for a mistrial after objecting to the prosecutor’s closing.

“ ‘The trial judge in passing upon a motion for mistrial on account of alleged improper argument is vested with a broad and sound discretion, and his ruling will not be controlled by this court unless manifestly abused. [Cit.]’ ” Dumas v. State, 216 Ga. App. 643, 645 (455 SE2d 354) (1995). Based on the foregoing authority, we are unable to conclude that the trial court abused its discretion in denying Edwards’ motion for a mistrial based on this or any of the eight separate comments by the prosecutor.

3. Edwards contends the court erred in denying his motion to suppress. Edwards claims that Bishop’s initial stop was pretextual, lacked probable cause, and was based on a drug courier profile.

An initial investigative stop requires that the arresting officer have only reasonable, articulable suspicion not probable cause. State v. Thomason, 153 Ga. App. 345 (1) (265 SE2d 312) (1980). An officer may conduct a brief investigatory stop of a vehicle, if such stop is justified by specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Evans v. State, 216 Ga. App. 21 (2) (453 SE2d 100) (1995). The specific, articulable suspicion must be based on the totality of the circumstances — objective observations, patterns of certain kinds of lawbreakers, and inferences drawn and deductions made by trained law enforcement personnel. See Cheat- ham v. State, 204 Ga. App. 483 (1) (419 SE2d 920) (1992).

In this case, Bishop testified that he pulled the car over because it had no tag. He first noticed Edwards’ car because it was proceeding abnormally slowly and he followed the car, observing it was traveling 20 mph below the posted speed on an interstate. Bishop also stated that he felt that there was a need to determine whether the driver might be under the influence due to the late hour of the night and his slow speed. Because the initial stop was based on a violation of OCGA § 40-2-41, as well as a need to determine whether the driver was under the influence, the stop was valid.

It is not disputed that Edwards consented to a search of his vehicle. Edwards contends, however, that he consented only to the initial search, which was fruitless, and that police conducted a second search without valid consent.

Edwards argues that even had he provided consent, because the stop was pretextual, proof of voluntary consent alone is insufficient to eliminate any taint from the illegally seized cocaine evidence. See Brown v. State, 188 Ga. App. 184 (372 SE2d 514) (1988). In Brown, supra, we reversed the defendant’s conviction for trafficking in cocaine because the basis of the officer’s stop was pretextual, an alleged improper lane change, utilized to try to develop a legal opportunity to search for and seize illegal drugs. The evidence showed that the actual basis of the stop was a purported match with the “drug courier profile” and no ticket or warning was issued to Brown. Despite the fact that Brown freely consented to a search of his vehicle, we reversed the trial court’s denial of his motion to suppress because the stop was pretextual.

In this case, however, Edwards’ vehicle had no tag displayed on the rear license plate area. Only after Bishop stopped the car was he able to see a cardboard temporary tag hanging in the rear window. Then, after Bishop stopped the vehicle he noticed both the driver and the passenger, Edwards, exhibited extreme nervousness. Bishop observed a peculiar bulge in the rear seat cushion, discovered the driver and the vehicle were from different states, and thought the stories given by Edwards and Rawls did not correspond. Unlike Brown, supra, the initial investigative stop here was not pretextual and intervening circumstances provided justification for the officer’s subsequent conduct.

Finally, we note that on a motion to suppress the trial court “sits as the trier of fact and its findings should not be disturbed by this court if there is any evidence to support them. [Cit.]” State v. Slater, 207 Ga. App. 669 (428 SE2d 676) (1993). The record contains sufficient support for the trial court’s denial of the motion to suppress.

4. Edwards claims the court erred by allowing the in-court identification of him by Carolyn Fowler. He argues that showing his driver’s license to her was impermissibly suggestive and created a substantial chance of misidentification.

The witness, an employee of a local motel chain, was shown Edwards’ driver’s license on February 20, 1992, nine days after Edwards stayed at the motel. When first interviewed by police, Fowler provided descriptions of both Edwards and Rawls. At trial, over four months later, Fowler identified Edwards as a man she recalled seeing on February 11, 1992, the day of the arrest.

In determining whether an in-court identification of a defendant is admissible, the trial court must determine whether the in-court identification is independent of the photo shown. “If the identification by the witness has an independent origin, it is not reversible error that the procedure used may have been somewhat suggestive. [Cit.]” Cook v. State, 176 Ga. App. 335, 336 (1) (335 SE2d 706) (1985). In court, Fowler testified she recognized Edwards from seeing him with Rawls at the motel counter. Contrary to Edwards’ claim, we do not find that the use of the driver’s license during the police initial investigation led to a “very substantial likelihood” of incorrectly identifying Edwards in an “irreparable fashion.” Moreover, any possible error in the admission of this witness’ identification would be harmless in light of Edwards’ identification by Bishop and other officers, as being a passenger with Rawls at the time of arrest.

5. Edwards claims the trial court abused its discretion by allowing Bishop to be recalled to the stand on two different occasions.

Contrary to Edwards’ allegation, the transcript indicates Bishop was recalled on only one occasion. After the State completed its initial direct examination of Bishop, the State excused him subject to recall.

Relying on Smith v. State, 156 Ga. App. 563 (275 SE2d 140) (1980), Edwards claims the trial court erred by allowing the State to reopen the evidence to permit Bishop to testify as to a small segment of the videotape concerning the special tool used to remove the backseat. Edwards argues Bishop’s testimony created the risk of prejudice condemned in Smith, supra. However, “ ‘[rjeopening evidence is in the sound discretion of the trial court and will not be disturbed when no abuse of discretion is shown.’ [Cits.]” Id. at 564. In this case, Edwards failed to show an abuse of discretion.

6. Edwards contends his case was improperly transferred over his objection from Judge Gault to Judge Roach pursuant to a local rule in Cherokee County that deviates from Uniform Superior Court Rule (“USCR”) 3.2.

Edwards maintains that USCR 3.2 was not complied with because the case originated with Judge Gault and a different judge, Judge Roach, presided at the suppression hearing. Edwards claims that the local rule in the Blue Ridge Judicial Circuit wherein cases are not assigned to a specific judge and the sitting judge on a scheduled non-jury day hears any motions set down for that day is violative of his due process rights. We find no merit to this argument. “[I]n non-metropolitan areas, where the circuit’s judges preside over cases in several counties on different dates ... it is often unfeasible and unwise for reasons of judicial economy for a single judge to preside over all hearings in a single case.” Robenolt v. Chrysler Financial Svcs. Corp., 201 Ga. App. 168, 170 (3) (410 SE2d 365) (1991).

Edwards also argues the district attorney, as an interested party, wanted the case heard by Judge Roach. Edwards claims Judge Gault had previously determined that a key State witness, Bishop, had no credibility. However, in both cases upon which Edwards relies, Judge Gault’s granting of the defendant’s motion to suppress was subjected to appellate review. See State v. Slater, 207 Ga. App. 669 (428 SE2d 676) (1993); State v. Tate, 208 Ga. App. 117 (430 SE2d 9) (1993); Tate v. State, 264 Ga. 53 (440 SE2d 646) (1994); State v. Tate, 213 Ga. App. 153 (445 SE2d 576) (1994). Moreover, the record indicates that rather than there being a violation of Edwards’ due process rights by the State, it was Edwards’ attorney who was attempting to “judge shop” as the trial court noted on the record.

Edwards further contends that the Blue Ridge Circuit failed to file its local rule with the Supreme Court as required by USCR 1.2. Although the State concedes the rule was not properly filed, Edwards has not shown that the failure was harmful. Errors do not actualize themselves into harm, and where there is no harm, we should find none. Accordingly, we find no merit to this enumeration.

7. Edwards claims the court committed reversible error by admitting into evidence cocaine that was not proven to be a mixture of ten percent or more. He argues the admission of the 11 kilos was improper, prejudicial and grounds for reversal.

The State tendered the cocaine evidence in three exhibits, only one of which had been analyzed for purity, the other two having only been tested to determine they were cocaine. A State crime lab chemist testified that package 3-B containing 1,002.3 grams was over ten percent pure. The failure to analyze the purity of all three exhibits would go to the weight of the evidence, not its admissibility. See Dorsey v. State, 187 Ga. App. 725 (5) (371 SE2d 207) (1988). Importantly, the State proved package 3-B contained over 400 grams of cocaine, consisting of more than ten percent purity, an amount more than sufficient to support a conviction for trafficking in cocaine, under OCGA § 16-13-31 (a) (1) (C).

8. Edwards argues that Bishop’s testimony that the street value of the seized cocaine was worth between $5,000,000 and $9,200,000 was improper, irrelevant, inflammatory and prejudicial. However, at trial, he objected only to the relevance of the testimony, and we do not consider grounds for objection not raised in the trial court. Lewis v. State, 205 Ga. App. 29 (421 SE2d 339) (1992). The only ground preserved for appeal is the relevance of the street value testimony.

Decided November 30, 1995.

Richard A. Coleman, for appellant.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.

The evidence of street value is probative in the sense that it may have explained Edwards’ extreme nervousness when Bishop first stopped the vehicle, and allowed the jury to decide how plausible it would be for someone other than Edwards to have concealed cocaine worth millions of dollars behind the rear seat of Edwards’ car without his knowledge. See Scott v. State, 170 Ga. App. 409, 411 (3) (317 SE2d 282) (1984) (holding that where defendant denied knowledge of the cocaine in his bag, it was not error to allow testimony of its street and wholesale value). Thus, this enumeration has no merit.

9. Edwards claims the State failed to prove the chain of custody of the cocaine evidence. Edwards tried to show the cocaine was not accounted for while the State’s chemist was on vacation, but the chemist testified that only she and her supervisor had keys to the locker where the evidence was kept. Edwards has offered no evidence of tampering or substitution, and every person who had custody of the cocaine, after it was seized, testified. The court found the evidence was secured and the chain of custody established. See Mosely v. State, 217 Ga. App. 507 (458 SE2d 165) (1995) and Quinn v. State, 209 Ga. App. 480 (433 SE2d 592) (1993). Accordingly, we find no merit to this enumeration.

Judgment affirmed.

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

       Statement B: “And then later on the police officer has you out back behind the back of his car, and he says, T noticed the large bulge. I noticed a large bulge in the back seat. The back seat was sticking way out.’ And you just stand there mute. If you don’t know what he’s talking about, and if you don’t know. . . .” Statement C: “Now, you would say, well what do you mean? Let me see it. Show it to me. I don’t know what you’re talking about. You’re saying my seat’s sticking way out? Huh. If it is a surprise to you that your seat is bulging out and the officer’s already told you that he wants to search for drugs, you’re going to say, what? What do you mean, officer? Show it to me. You wouldn’t just stand there and say nothing, unless you knew it. He knew exactly what he was talking about, and he didn’t want to say anything about it.”


text:
    A95A1896.
    HILL v. HILL.
    (464 SE2d 656)
   Johnson, Judge.

Mary Louise Hill and Fred Hill divorced in South Carolina. In the final judgment and decree, Ms. Hill was awarded custody of the couple’s minor children, and Mr. Hill was ordered to pay monthly child support. Mr. Hill failed to make the required payments, accrued a substantial arrearage, and then moved to Georgia. In 1994, Ms. Hill sued for past due child support. After a hearing, the trial court concluded that Mr. Hill was in arrears in the amount of $12,300, and ordered him to pay $123 per month toward the arrearage. The trial cpurt, however, prohibited Ms. Hill from taking any action to collect on the judgment, as long as Mr. Hill complied with the terms of the order. We granted Ms. Hill’s application for discretionary review of the court order abrogating her legal rights to enforce the judgment against Mr. Hill.

Decided November 30, 1995.

Mann, Bracken, Layng & Knezo, Dana A. Azar, for appellant.

Larry King, for appellee.

“[Vjarious remedies for enforcement and collection of a child support order, including contempt, execution by writ of fi. fa., and garnishment, may generally be pursued either singly or concurrently. [Cits.]” Dept. of Human Resources v. Chambers, 211 Ga. App. 763, 766 (2) (441 SE2d 77) (1994). Because nothing in the facts of this case demands a different result, we find the trial court erred in prohibiting Ms. Hill from exercising her right to pursue various collection methods or other enforcement actions to secure child support. See id.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.


text:
    A95A2130.
    BEDINGFIELD v. THE STATE.
    (464 SE2d 653)
   Johnson, Judge.

Andrew Bedingfield appeals from his possession of cocaine conviction.

1. Bedingfield challenges the sufficiency of the evidence supporting his conviction. In considering this challenge, we must review the evidence presented at trial in the light most favorable to support the verdict. Jackson v. State, 213 Ga. App. 170 (1) (444 SE2d 126) (1994). Viewed in that light, the evidence in the instant case is sufficient to uphold Bedingfield’s conviction.

Police officer Richard Daly testified that he and another officer walked up to a parked car in which Billy Underwood, the car owner, was sitting in the driver’s seat and Bedingfield was sitting in the front passenger seat. Daly shined his flashlight into the car and observed a plastic bag containing a large piece of crack cocaine on the car’s console next to Bedingfield. The officers removed Bedingfield and Underwood from the car and then found two more pieces of crack cocaine, a device used for smoking and a pocketknife in the car. Underwood testified that Bedingfield had purchased the cocaine for them to smoke. Bedingfield did not testify, but presented two other witnesses who contradicted testimony given by Underwood. Bedingfield’s work supervisor testified that he was with Bedingfield for most of the day before Bedingfield’s arrest, and another witness testified that on the day of the arrest Underwood tried to sell cocaine to her. Having reviewed the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found Bedingfield guilty beyond a reasonable doubt of possessing cocaine. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hayes v. State, 205 Ga. App. 820, 821-822 (2) (423 SE2d 729) (1992).

2. Bedingfield contends the court erred in denying his motion to suppress the cocaine and other items found in Underwood’s car. This contention is without merit because the court correctly ruled that Bedingfield, as a mere passenger who did not assert an interest in either Underwood’s car or the property found in it, lacks standing to object to the search of the car. See Ballard v. State, 216 Ga. App. 315, 316 (454 SE2d 200) (1995); Keishian v. State, 202 Ga. App. 718, 719-720 (415 SE2d 324) (1992).

Moreover, even if Bedingfield had standing to contest the search, the evidence proves the search was legal. The police officers’ initial contact with Bedingfield and Underwood, merely standing outside the parked car, involved no coercion or detention and was therefore outside the compass of the Fourth Amendment. See State v. Jackson, 201 Ga. App. 810, 813-815 (2) (412 SE2d 593) (1991). While in his lawful position outside the car, officer Daly saw cocaine in plain view on the car’s console, and was thus authorized to seize that cocaine. See Hines v. State, 214 Ga. App. 476, 478 (448 SE2d 226) (1994). Upon finding the cocaine, the officers had probable cause to arrest Bedingfield and Underwood, and were justified in searching the car incident to the arrests. See Watson v. State, 190 Ga. App. 696, 697 (379 SE2d 817) (1989). Accordingly, the court committed no error in denying the motion to suppress the evidence found in the car.

3. Contrary to Bedingfield’s argument, there is no evidence that the trial court manifestly abused its discretion in not allowing him to question jurors during voir dire about their favorite color. See OCGA § 15-12-133; Thomas v. State, 217 Ga. App. 720, 721 (2) (458 SE2d 897) (1995).

4. Bedingfield’s complaints regarding the court’s jury charges on the concepts of actual and constructive possession, mere presence at the scene of a crime, and the state’s burden of proving each element of the crime beyond a reasonable doubt are wholly without merit. Our review of the entire charge reveals that the court fully and accurately instructed the jury on those concepts. See Bruce v. State, 191 Ga. App. 580, 581-582 (3) (382 SE2d 367) (1989); Jones v. State, 174 Ga. App. 783, 786 (3) (331 SE2d 633) (1985); Tamez v. State, 148 Ga. App. 307, 308-309 (2) (251 SE2d 159) (1978).

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.

Decided November 30, 1995

Fred A. Zimmerman, for appellant.

Robert E. Keller, District Attorney, Brandon Hornsby, Assistant District Attorney, for appellee.


text:
    A95A2370.
    TRIPPE v. THE STATE.
    (464 SE2d 655)
   Johnson, Judge.

Charles Trippe appeals from his driving under the influence of alcohol conviction. He complains that the court erred in denying his motion to suppress evidence on the ground that the police officer’s stop of his pickup truck for failure to use a turn signal was pretextual. This complaint is without merit.

OCGA § 40-6-123 provides in pertinent part: “(a) No person shall turn a vehicle at an intersection . . . until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate and timely signal in the manner provided in this Code section, (b) A signal of intention to turn right or left or change lanes when required shall be given continuously for a time sufficient to alert the driver of a vehicle proceeding from the rear in the same direction or a driver of a vehicle approaching from the opposite direction.” The uncontroverted evidence in the instant case is that Trippe stopped his truck at a red traffic light and the officer, proceeding in the same direction as Trippe, stopped his car directly behind Trippe. When the light turned green, Trippe turned right at the intersection without using his turn signal. Contrary to Trippe’s argument, the fact that both vehicles were stopped at the red light prior to Trippe’s turn did not obviate the need to use the signal. Rather, Trippe was required to use his signal to alert the officer, stopped directly behind him, of his intention to turn right.

Trippe correctly notes that this Court has recognized that the use of the term “when required” in subsection (b) indicates the legislature’s anticipation of circumstances which do not mandate the use of a turn signal. See Clark v. State, 208 Ga. App. 896, 897-898 (1) (432 SE2d 220) (1993). But unlike Clark and State v. Jones, 214 Ga. App. 593 (448 SE2d 496) (1994), the instant case does not present such circumstances. In Clark, supra at 897, the police officer was 300 feet behind the defendant’s northbound car in the right lane of Interstate 75 when the defendant merged onto an exit ramp without signaling. In ruling that the defendant was not required to use his turn signal, this Court stated that “[t]his type of . . . exit ramp is designed to emerge from the outside traffic lane and allows vehicles to enter safely from that lane without the use of a turn signal when no other vehicles are in the area. This situation is different from one in which a vehicle is changing lanes on an interstate, rather than entering an exit ramp, or when traveling on a road or street other than an interstate. It was undisputed that no other vehicles were in the vicinity of the [defendant’s car]. Additionally, [the officer] was far enough away that he would have been unable to see any hand signal, if given, as authorized by OCGA § 40-6-124 (a).” Id. at 898. Likewise, in Jones, supra at 594, we held that the defendant was not required to signal his intention to make a U-turn because there were no other cars on the road.

Decided November 30, 1995.

Albert B. Wallace, Stephen B. Wallace II, for appellant.

Keith C. Martin, Solicitor, Michael P. Baird, Elizabeth A. Baker-Cofer, Assistant Solicitors, for appellee.

In the current case, however, the officer was on the street directly behind Trippe when Trippe turned at an intersection without signaling. Upon seeing Trippe commit the traffic offense of failing to use his turn signal, the officer was authorized to stop Trippe. Accordingly, the trial court did not err in finding that the traffic stop was not pretextual and in denying the motion to suppress. See Jones v. State, 200 Ga. App. 666 (1) (409 SE2d 251) (1991).

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


author: McMurray, Presiding Judge.

text:
    A95A1545.
    STUDSTILL v. SMITH et al.
    (464 SE2d 843)
   McMurray, Presiding Judge.

In this slip and fall case, plaintiff Studstill was an employee of a tenant of a building owned by defendants Arthur R. Smith and Arthur K. Smith. Plaintiff walked in and out of the building several times a day over a period of approximately two years and thus had ample opportunity to become familiar with the stairs where she fell. Plaintiff knew of the absence of handrails and anti-skid strips. It was raining on the day plaintiff fell, and she was aware the stairs were wet. There is no evidence of any foreign substance or irregularity in the surface of the brick steps. The state court granted defendants’ motion for summary judgment, and plaintiff appeals. Held:

Plaintiff presents three arguments on appeal. First, she contends that the trial court failed to recognize and apply the proper law insofar as her claim is predicated on landlord-tenant law, that is, defendants’ liability for defective construction or for failure to keep the premises in repair. Secondly, plaintiff maintains genuine issues of material fact remain as to the necessity of her using the stairs on which she fell because they were the only available means of entering or leaving the building. Finally, plaintiff argues that issues of material fact remain regarding defendants’ superior knowledge of the defective construction of the steps since they are architects who have superior knowledge of materials and design and construction techniques.

Decided November 20, 1995

Reconsideration denied December 1, 1995

O. Wayne Ellerbee, Laurie Paterson, for appellant.

Clyatt & Clyatt, Russell C. Wallace, Young, Thagard, Hoffman, Scott & Smith, Daniel C. Hoffman, for appellees.

Defendants have answered all of these arguments by reference to their uncontroverted evidence that the stairs complied with all applicable building codes and were constructed with standard-sized bricks with a wire cut finish which are a widely used and commonly accepted material for entryway steps. Defendants also presented evidence that in the ten years since the steps were built, there had been no complaints that they were slippery or defective. Since the steps were constructed of a material commonly accepted in the building industry, the standard of ordinary care had been met. Cole v. Cracker Barrel, 210 Ga. App. 488, 489 (436 SE2d 704). This being the case, plaintiff’s evidence as to various ways the steps could have been made even safer is immaterial. Madaris v. Piggly Wiggly Southern, 205 Ga. App. 405, 406 (1) (422 SE2d 273). “There is scarcely any material that might be used in construction that isn’t made somewhat slippery by the presence of water. That is a matter of common knowledge, and, since it is, it behooves us all to use a measure of precaution in walking upon wet surfaces. Tt is common knowledge that people fall on the best of sidewalks and floors.’ [Cit.]” Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 172 (1) (138 SE2d 77).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Ruffin, Judge. Pope, Presiding Judge,

text:
    A95A0955.
    GROUTAS v. McCOY et al.
    (464 SE2d 657)
   Ruffin, Judge.

We granted Andrew Groutas’s petition for interlocutory appeal to determine whether violation of a county ordinance on property owned by Groutas could render him liable for negligence per se, or whether he contracted responsibility for compliance with the ordinance to the tenant. Because we find that Groutas delegated this responsibility to the tenant, we reverse the trial court’s partial denial of Groutas’s motion for summary judgment.

Groutas owned commercial real estate which was bounded by a fence to which electrical outlets were attached. He leased part of the property to an individual who then subleased it to Marion Webb, a co-defendant. Webb sold recreational vehicles (“RVs”) on the property. The RVs were plugged into the electrical outlets on the fence. Joe McCoy sued Groutas and Webb, alleging he received an electrical shock when he placed his hand on the fence while inspecting one of Webb’s RVs. Mrs. McCoy sued for loss of consortium. The DeKalb County electrical inspector testified that the outlet attached to the fence was in violation of a DeKalb County ordinance because it did not have a ground wire.

Groutas moved for summary judgment, contending that he had fully parted with the property and relinquished control to the tenant and that Webb, the sublessee, had exclusive control of the property. The trial court granted the motion as to McCoy’s negligence claim but denied it as to McCoy’s claim for negligence per se based on the violation of the ordinance.

1. Summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to any essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (4) (405 SE2d 474) (1991). McCoy contends genuine issues of material fact remain regarding whether the property Groutas leased to Webb included the fence. But Groutas testified that he leased the fence, and the deposition testimony of the sublessee, Webb, is consistent with this. Webb testified that if any repairs to the fence were necessary that he, not Groutas, was responsible for the repair. In addition, paragraph 9 of the lease between Groutas and the tenant gives the tenant exclusive control of the premises and specifically provides that Groutas was only responsible for keeping in good repair specific items such as the roof, foundation and exterior walls. The fence and outlets are not specified in paragraph 9.

McCoy also argues that violation of the DeKalb County ordinance is negligence per se, and that there is a jury question as to whether paragraph 14 of the lease absolves Groutas of his obligation to comply with that ordinance. See, e.g., Northwestern Mut. Life Ins. Co. v. McGivern, 132 Ga. App. 297 (2) (208 SE2d 258) (1974) (violation of such ordinances is negligence per se). Paragraph 14 of the lease reads as follows: “Tenant agrees, at his own expense, to properly comply with all requirements of any legally constituted public authority [i.e., DeKalb County] made necessary by reason of Tenant’s occupancy of said premises. Landlord agrees to properly comply with such requirements if not made necessary by reason of Tenant’s occupancy. . . .” (Emphasis supplied.)

Although we have not specifically addressed whether a landlord can contract away the duty of compliance with a county electrical code, we have held that he cannot avoid the duties imposed by a housing code in a residential setting. But the owner of property not used as a “dwelling place” — as was the case here — can contract to avoid the duties to repair and improve the property set forth in OCGA §§ 44-7-13 and 44-7-14. See Gaffney v. EQK Realty Investors, 213 Ga. App. 653 (445 SE2d 771) (1994).

McCoy argues that because the wiring on the fence existed prior to Webb’s occupancy, compliance with the ordinance was not “made necessary” by Webb and was therefore Groutas’s non-delegable responsibility. We disagree. Compliance was necessary as a result of the use of the outlets for Webb’s RV business. Because Webb used the outlets in his RV business, he was responsible for assuring compliance with the ordinance.

Thus, because the lease gave the tenant both exclusive control of the premises as well as responsibility for compliance with any county ordinance made necessary by his occupancy, the trial court erred in denying Groutas summary judgment on McCoy’s negligence per se claim.

2. Mrs. McCoy’s right to recover for loss of consortium is dependent upon Mr. McCoy’s right to recover against Groutas. Lovelace v. Figure Salon, 179 Ga. App. 51, 53 (3) (345 SE2d 139) (1986). Given our holding in Division 1 that the trial court erred in denying Groutas summary judgment, we likewise hold that it erred in denying summary judgment as to Mrs. McCoy’s claim.

3. In light of our holding above that Groutas has no liability in tort, his motion for summary judgment on the issue of punitive damages should likewise have been granted by the trial court. See Families First v. Gooden, 211 Ga. App. 272 (7) (439 SE2d 34) (1993).

Judgment reversed.

Beasley, C. J., Birdsong, P. J., Andrews, Johnson and Smith, JJ., concur. McMurray, P. J., Pope, P. J., and Blackburn, J., dissent.

Pope, Presiding Judge,

dissenting.

Even if a landlord has fully given up possession and control of the premises, he is responsible for damages arising from defective construction or failure to keep the premises in repair under OCGA § 44-7-14. Flagler Co. v. Savage, 258 Ga. 335, 337 (2) (368 SE2d 504) (1988). This responsibility can be modified by contract, but only with respect to the parties to the contract; a lease provision relieving a landlord of the obligation to keep the premises in repair is not effective against third persons lawfully on the premises. See id. And Flagler, like this case, involved a commercial rather than a residential lease.

Moreover, Gaffney v. EQK Realty Investors, 213 Ga. App. 653 (445 SE2d 771) (1994) does not support the proposition that a landlord may effectively delegate his duty where the violation of a specific ordinance or regulation (rather than just the generalized duty to repair under OCGA § 44-7-14) is involved. We did state in Gaffney that a landlord in a commercial context may delegate to an independent contractor his generalized duty to repair under OCGA § 44-7-14. Thus, the landlord would not be vicariously liable for the independent contractor’s negligence where the landlord inspected the property, discovered the dangerous condition, took precautionary measures, and hired an independent contractor to make the necessary repairs, but the independent contractor was negligent in making the repairs. Id. at 654-655. The holding of Gaffney, however, was that a landlord could not delegate his duty to repair elevators, which are specifically regulated due to their inherent potential for danger. See id. at 655. Like elevators, electrical wiring is specifically regulated due to its inherent potential for danger, and the duties imposed under those specific laws and regulations cannot be delegated. See also Fulton v. Anchor Savings Bank, 215 Ga. App. 456, 462 (2) (b) (452 SE2d 208) (1994).

Colquitt v. Rowland, 265 Ga. 905 (463 SE2d 491) (1995), the Supreme Court’s most recent pronouncement in this area, is distinguishable in two important ways. First, unlike this case, it was undisputed in Colquitt that the tenant actually created the hazardous condition. And second, the alleged negligence in Colquitt did not involve the breach of a duty imposed by a specific statute, ordinance, or regulation.

For these reasons, the outcome of this appeal should not depend on the language of the lease agreement. The language relied upon by the majority may provide the basis for a landlord to file a cross-claim for full indemnification against the tenant, who is also a defendant in this case, but it does not preclude the landlord’s liability to plaintiffs. I would therefore affirm the trial court’s denial of landlord’s motion for summary judgment with respect to the negligence per se claims of both plaintiffs.

The issue of the appropriateness of punitive damages was not raised by defendant’s motion for summary judgment below, and is therefore not properly before us. In any case, evidence that a landlord failed to exercise any effort to comply with safety regulations may support an award of punitive damages. Windermere, Ltd. v. Bettes, 211 Ga. App. 177, 178-179 (1) (438 SE2d 406) (1993).

Decided December 1, 1995.

Carter & Ansley, Thomas E. Magill, Burke B. Johnson, for appellant.

Doffermyre, Shields, Canfield & Knowles, Ralph I. Knowles, Jr.,

R. Hutton Brown III, Crim & Bassler, Nikolai Makarenko, Jr., for appellees.

I am authorized to state that Presiding Judge McMurray and Judge Blackburn join in this dissent.

        Gaffney is distinguishable from this case, of course, as the landlord here did none of these things.


author: Pope, Presiding Judge.

text:
    A95A1165.
    HESTER v. THE STATE.
    (465 SE2d 288)
   Pope, Presiding Judge.

Defendant appeals his conviction for selling cocaine.

Viewing the evidence in a light to support the verdict, undercover agents in a car approached an intersection and waved at a group of young men standing around. One of the group, defendant, walked over to the car and asked the agents what they wanted. An agent asked defendant if he “had any,” and defendant responded that he did. Defendant again asked the agent what he wanted, and the agent said he wanted a $20. Defendant then left the car and walked back toward the group. About halfway between the car and the group he met another individual, co-defendant Rufus Frazier, and after what looked like some kind of exchange, Frazier went to the car and sold the agents a piece of crack cocaine for $20.

Defendant admitted he was present at the intersection, went over to the car and talked to the agents, but denies having anything to do with the sale.

1. Citing Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980), defendant first argues that the trial court erred in denying his motion for an extraordinary new trial because he now has evidence not available before. Specifically, defendant now has the testimony of co-defendant Frazier, who invoked his fifth amendment right not to testify at defendant’s prior trial but has since pled guilty. Timberlake established the test for newly discovered evidence under OCGA § 5-5-23, however, while this case involves newly available evidence. And this distinction is significant, as discussed in United States v. Carlin, 573 FSupp. 44 (N.D. Ga. 1983), aff'd 734 F2d 1480 (11th Cir. 1984).

The rationale employed there, taken from other courts, is sound and fits well here. In this case as in the federal cases, there are “two critical facts” regarding the proffered testimony of a once-unavailable witness who has pled guilty and been sentenced in the interim. “First, the substance of the testimony is not in fact new evidence, since it was always known by the defendant seeking a retrial. Second, and equally important, the once-unavailable defendant who now seeks to exculpate his co-defendant lacks credibility, since he has nothing to lose by testifying untruthfully regarding the alleged innocence of the defendant seeking a retrial.” Id. at 47. So, without some special circumstances, a new trial, much less a new trial pursuant to an extraordinary motion (see OCGA § 5-5-41), is not required. As no special circumstances were present here, the court did not abuse its discretion in denying the new trial.

As recognized in the logic applied in Victrum v. State, 203 Ga. App. 377, 378 (1) (416 SE2d 740) (1992), if a defendant cannot postpone his trial until his co-defendant becomes “available” after entering a plea or being convicted, he should not be able to obtain a new trial in the same way.

2. Citing Webb v. Texas, 409 U. S. 95 (93 SC 351, 34 LE2d 330) (1972), defendant also contends that the trial court deprived him of due process by improperly “driving his witness from the stand” when it advised Frazier that he would be tried for perjury if his testimony at defendant’s trial conflicted with his testimony at his own later trial. In Webb, the trial court told a defense witness who was already in prison that if he lied, it could affect his chances for parole or increase his sentence by several years. This case is distinguishable from Webb, however, because unlike the witness in Webb, Frazier was facing trial on charges stemming from the same transaction at issue in defendant’s case. Moreover, the judge in Webb went far beyond the judge in this case, actively discouraging the witness from testifying and even attempting to dissuade defense counsel from calling the witness. Although the court here may have gone a little too far in “assuring” Frazier he would be prosecuted for perjury if he gave conflicting testimony, it was obligated to advise Frazier of his right to not testify and warn him about the possibility of perjury charges, and it did not err in doing so.

3. Lastly, defendant contends the trial court erred in refusing to give his requested jury charge on mere presence. Defendant was not entitled to the charge, however, because his own version of the incident showed he was more than merely present.

Although the record does not contain a copy of the requested charge, it apparently was that which is contained in the Suggested Pattern Jury Instructions, Vol. II (2d ed. 1991): “The mere presence of a person at the scene of the commission of a crime at the time of its perpetration, without more, will not authorize a jury to find the person who was merely present guilty of consent in, and concurrence in, the commission of the crime, unless the evidence shows, beyond a reasonable doubt, that such person committed the alleged crime, helped in the actual perpetration of the crime, or participated in the criminal endeavor.”

Decided December 1, 1995.

Dickinson, Noel & Mixson, Scott P. Willis, for appellant.

Alan A. Cook, District Attorney, Anne M. Templeton, Assistant District Attorney, for appellee.

The defendant testified that he was waved over to the undercover car, from the group of people with whom he was standing, by the passenger. He asked what the passenger wanted, and when the passenger asked whether defendant knew where he could find some drugs, he said “Yeah” and walked back to the crowd. As he was doing so, Frazier walked up to the car from the group and, without speaking to defendant along the way, transacted the sale. Defendant explained his affirmative answer by saying that these requests occurred all the time because he lived in a drug area, and he was not saying he had or could get some drugs for the interested stranger.

Thus, by his own evidence, defendant was not merely one of the crowd. He was the one from the group of four males standing together who responded to the call from the car which stopped, ascertained that the occupant wanted to purchase “a good $20,” and said he knew where it could be obtained. The trial court correctly ruled that this constituted more than mere presence, so as not to warrant the charge.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.