text:
    A97A0787.
    QUALITY CONTROL ELECTRIC, INC. v. ELECTRONIC SECURITY SERVICES COMPANY, L.P. d/b/a UNITED ALARM SYSTEMS.
    (484 SE2d 696)
   Eldridge, Judge.

Appellant Quality Control Electric (“Quality Control”) was an electrical subcontractor for the construction of a Hampton Inn hotel in Brunswick, Georgia in October 1991. Appellant had contracted to install a fire alarm system, and purchased most of the materials from appellee, United Alarm Systems (“United Alarm”). According to the purchase order for the alarm system, appellee was “to furnish the fire alarm equipment, final hook-up supervision; all testing, training and instructions, and final certification for the Hampton Inn in Brunswick.” The terms and conditions of the purchase order provided that the materials would be “fit and sufficient for the purpose intended, merchantable, of good material and workmanship and free from defect.”

Following appellant’s installation of the system in October 1991, appellee certified that the system was properly installed. The system worked properly for approximately three months, but then began to malfunction by activating randomly. Appellee suggested that appellant replace the wiring, which was done; the problem persisted. In March 1992, appellant contacted the manufacturer of the alarm’s strobe units; the manufacturer replaced the strobes, but the system continued to malfunction. Finally, it was discovered that water was leaking into the system, possibly because waterproof back plates had not been installed in the units that were mounted outside. After the strobe units were replaced with units that had waterproof back plates, the system’s problems ceased.

Appellant filed suit against appellee for breach of contract and breach of warranty in September 1994, asserting that appellee provided defective strobe units and seeking recovery for the costs involved in replacing the wiring and in attempting to repair the system. A jury trial commenced on May 15, 1996; however, appellee moved for a directed verdict following the close of appellant’s case, and the trial court granted the motion. Appellant’s motion for a new trial was denied, and this appeal was timely filed. Appellee filed a motion to dismiss the appeal on September 16, 1996, claiming that appellant was not the real party in interest. The trial court denied the motion on October 17, 1996. Held:

1. In the first enumeration of error, appellant asserts that the trial court erred by granting a directed verdict for the appellee on the issue of whether the strobes were defective. A motion for directed verdict should be granted only when “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, [demands] a particular verdict.” OCGA § 9-11-50 (a). All evidence must be construed most favorably to the non-movant. Bruno v. Evans, 200 Ga. App. 437, 439 (408 SE2d 458) (1991); Folsom v. Vangilder, 159 Ga. App. 844 (285 SE2d 583) (1981). Before the trial court can direct a verdict for the movant, “he must find from the evidence that there is no evidence of any kind supporting [the non-movant’s] position.” (Citations and punctuation omitted; emphasis in original.) Barber v. Atlas Concrete Pools, 155 Ga. App. 118, 119 (2) (270 SE2d 471) (1980).

In the case sub judice, the appellant presented evidence of repeated failures of the strobe units and the subsequent replacement of the strobes by the manufacturer. Appellant asserts that this evidence proves that the equipment was defective. However, appellant’s witnesses testified that the strobe units worked properly when installed and for approximately three months afterward; they also testified that the reason the units had to be replaced was because of moisture damage during the months following installation. No evidence was presented to prove that some defect in the strobe unit allowed water to seep in and corrode the wiring; instead, the witnesses opined that the damage probably resulted from the failure to install the outside units with waterproof back boxes. This evidence directly contradicts appellant’s assertion that the units were defective; such contradiction must be construed against appellant. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986); Wilson v. Southern R. Co., 208 Ga. App. 598, 602 (431 SE2d 383) (1993); Marett v. Professional Ins. Carriers, 201 Ga. App. 178 (410 SE2d 373) (1991). Further, there is direct, undisputed evidence that the manufacturer and appellee honored the equipment warranty by replacing the strobe units. Since appellant’s evidence does not support his breach of warranty claim, appellee was entitled to a directed verdict on that issue.

2. In the second enumeration of error, appellant asserts that the trial court erred by not allowing the jury to consider the issue of whether or not the appellee breached its duty to appellant by incorrectly certifying that the alarm system had been installed properly.

According to the equipment purchase order, which constituted a contract between appellant and appellee, appellee was responsible for certifying that the alarm system was properly installed. Appellant ordered horn strobe units on the advice of the appellee; appellant did not order the optional weatherproof box. However, the manufacturer’s equipment specifications for the horn strobe unit at issue in this case clearly requires that, if a unit is to be mounted outside, it should be mounted to a weatherproof back box. After appellant installed the units outside without the weatherproof box, appellee certified that the equipment was properly installed, even though such installation was counter to the manufacturer’s specifications. Such improper certification raises a factual issue as to whether appellee breached the contract with appellant. Under the circumstances, the trial court erred in directing a verdict for appellee on the appellant’s breach of contract claim.

Decided March 10,1997

Reconsideration denied March 24,1997

Bouhan, Williams & Levy, Wilbur D. Owens III, Carlton E. Joyce, for appellant.

Jones, Boykin & Associates, Charles W. Snyder, for appellee.

Judgment affirmed in part and reversed in part.

Birdsong, P. J, and Ruffin, J., concur.

       Although appellee correctly notes that appellant’s assertion regarding the failure to certify the system was not made and considered by the trial court, it is clear from the appellant’s brief that the substance of the instant enumeration of error actually involves appellee’s failure to discover problems with appellant’s system and the appellee’s subsequent improper certification of the installation of the system, which contentions were raised and considered by the court below.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A97A0835.
    A97A0836.
    JONES v. THE STATE. WALKER v. THE STATE.
    (484 SE2d 702)
   Eldridge, Judge.

A Butts County jury found appellants Lenton Jones and Louis Walker guilty of the offenses of possession of heroin and possession of cocaine with intent to distribute. The record demonstrates that the verdict arose from the following set of facts:

During a routine traffic patrol on the 1-75 corridor near exit 66, a Butts County deputy sheriff spotted a red Pontiac Sunfire traveling at a high rate of speed in the far left “fast” lane of the three northbound lanes. When the Pontiac passed the marked patrol car parked in the median, it immediately slowed down and swerved across two lanes in order to enter into the stream of traffic in the far right “slow” lane; this maneuver forced several vehicles, which had been traveling in these other lanes, to brake sharply in order to avoid hitting the Pontiac. The sheriff activated his vehicle’s blue lights and caught up with the Pontiac just over the Henry County line.

Jones was driving the car, and Walker was in the front passenger seat. Jones immediately informed the officer that his driver’s license was suspended; Walker, who was breathing heavily and would not make eye contact with the deputy sheriff, stated that he did not have a license either. Upon request, both men exited the vehicle; Walker gave the deputy sheriff the rental contract for the Pontiac. Neither Jones nor Walker was listed on the rental agreement, and neither man could tell the deputy who had rented the car. When asked where they were going, neither Jones nor Walker knew; they told the deputy that they were from Miami and were following a truck; they could not tell the deputy any destination other than somewhere in Atlanta; and they stated that they were to call a telephone number upon reaching the city. Neither Jones nor Walker could produce the telephone number.

The deputy asked for permission to search the vehicle; the men consented to the search. Both men appeared “nervous.” Prior to the search of the vehicle, the officer conducted a “walk around” of the vehicle, utilizing a drug dog which traveled with the deputy; the dog “alerted” on the car trunk, indicating that drugs were present therein. The officer searched the trunk, which contained a deodorant can with a false bottom. The false bottom had sprung open, and a single ziplock bag had fallen out. The bag appeared to contain crack cocaine. Inside the deodorant can were four additional ziplock bags of suspected crack and several plastic bags which held 239 individual caplets containing white powder.

Jones and Walker were arrested. A small glass tube, charred on one end, was found above the driver’s side visor during a later search of the vehicle. Pursuant to lab analysis, the deodorant can was determined to contain 2.8 grams of cocaine and 32 grams of heroin; the tube was not analyzed. Neither Jones nor Walker testified at trial or offered evidence.

Case Nos. A97A0835 and A97A0836

1. Both appellants challenge the sufficiency of the evidence to support the jury’s verdicts and, for the same enumerated reasons, contend that the trial court erred in denying their motions for directed verdicts. Appellant Jones argues that the state failed to prove that they were in possession of the drugs since the drugs were found alone in the trunk, appellants’ belongings were in the back seat, and there was no evidence to show any connection between appellants and the contraband except “spatial proximity” to the drugs. Appellant Walker argues that the state proved only that he was “merely a passenger.” We disagree with both appellants’ assertions.

“[CJriminal intent may be inferred from conduct before, during and after the commission of the crime.” Gaskin v. State, 221 Ga. App. 142, 143 (470 SE2d 531) (1996). As the driver of the Pontiac, the record amply demonstrates appellant Jones’ evasive conduct upon spotting the deputy sheriff’s patrol car. The record shows both appellants’ nervous demeanor after the stop. Far from being “merely a passenger,” appellant Walker was breathing heavily and refused to make eye contact with the deputy; Walker never disavowed to the deputy his association with Jones, with whom he was traveling from Miami; and Walker had possession of the rental contract, which contract listed neither appellant as an approved driver. From their conduct, a jury could conclude that appellants had something to hide, and that the “something” was the drugs in the trunk of the car.

Further, the evidence demonstrates that both appellants told the deputy the same story: that they were following a truck from Miami to Atlanta where they would call their contact. However, neither appellant could state where they were going in Atlanta, who had rented the car in which they were traveling, nor the telephone number of their purported contact in Atlanta which was, ostensibly, their only way to communicate with the contact. From this evidence, a jury would be permitted to make a credibility determination that appellants were displaying a lack of candor commensurate with a less than legitimate purpose for their trip, i.e., transportation of drugs to Atlanta for sale purposes.

In addition, the thin glass tube found above the driver’s side visor was charred on one end, and the jury could conclude that it was utilized for smoking crack cocaine, such as that found in the trunk of the Pontiac.

We will not weigh this evidence; such task is properly left to the jury. Sheats v. State, 210 Ga. App. 622, 623 (436 SE2d 796) (1993). Suffice it to say, we find that “spatial proximity” was not the only evidence that demonstrated a connection between appellants and the drugs in the trunk of the rental car, and sufficient evidence was presented to show that appellant Walker was more than “merely a passenger.” Accordingly, the trial court did not err in denying appellants’ motions for directed verdicts thereby permitting the case to go to the jury. Moreover, a rational trier of fact could have determined that appellants jointly possessed the drugs in the trunk of the vehicle and thus were guilty as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Chitwood v. State, 166 Ga. App. 62 (303 SE2d 307) (1983).

2. Both appellants argue that the denial of their joint motion to suppress was error. Appellant Jones contends that the deputy sheriff’s “extra-territorial” stop of appellants’ vehicle was unauthorized and constituted an illegal stop. Appellant Walker adds that the deputy lacked “probable cause” to stop the vehicle since the only reason given for the stop was a “very vague lane violation.’ ”

However, at trial appellants challenged only the search of the vehicle, not the stop; appellants argued that the search was unsupported by probable cause and was conducted absent consent from either Jones or Walker. The trial court ruled on the issue of probable cause to search as it was raised below. Appellants never argued that there was no reasonable, articulable suspicion to make the stop, itself, or questioned the Butts County deputy’s authority to make the “extra-territorial” stop in Henry County. Thus, the trial court was never called upon to make a ruling on the grounds now argued by appellants before this Court. “It is well settled that no issue is presented for appellate review regarding a question of evidence admissibility as to which the trial court was not called to rule upon at trial.” Simms v. State, 223 Ga. App. 330, 332 (1) (477 SE2d 628) (1996). This allegation of error is waived.

3. Both appellants contend that the trial court’s charge to the jury was reversible error. Appellant Jones claims as error the trial court’s failure to give his request to charge on “knowledge.” Appellant Walker assigns error to the trial court’s failure to charge the jury on “mere presence” and “equal access.”

There was no error in the trial court’s refusal to give appellant Jones’ Request to Charge No. 2 on “knowledge.” This charge, unsupported by citation of law, was amply covered by the trial court’s charge on the state’s burden of proof, on possession, and on criminal intent. “It is not necessary that the jury be given the exact language requested where the same principles fairly are given to the jury in the general charge.” (Citations and punctuation omitted.) Trotter v. State, 216 Ga. App. 612, 614 (3) (455 SE2d 121) (1995). Likewise, there was no error in refusing to give appellant Walker’s request to charge on “mere presence.” The trial court charged the jury on the state’s burden to prove each element of the offense as charged, the law on sole and joint possession, the law regarding mere suspicion, and the maxim that mere spatial proximity to contraband is inadequate to demonstrate guilt. This was sufficient to cover the principles of law contained in appellant’s “mere presence” charge. Ancrum v. State, 197 Ga. App. 819, 821 (399 SE2d 574) (1990). Further, contrary to appellant Walker’s assertions, the trial court did charge the jury on “equal access.” This enumeration of error is without merit.

Case No. A97A0836

4. Appellant Walker alleges that the denial of his motion to sever was error. In support thereof before this Court, appellant reiterates his argument in Division 1 of this opinion, that he was a “mere passenger.” In his written motion to sever before the trial court, appellant contended only that “his defense and testimony will be in conflict with that of his Co-Defendant, Lenton Jones.” “The defendant seeking severance must do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process. The fact of antagonistic defenses does not of itself require severance, and [Walker] has not demonstrated any clear prejudice and denial of due process which might have been avoided by severing the trials.” (Citations and punctuation omitted.) Evans v. State, 183 Ga. App. 436, 437 (359 SE2d 174) (1987).

5. Appellant Walker next contends that the trial court erred in overruling his objection to prejudicial testimony concerning a “crack pipe” that the deputy sheriff found during the search of the vehicle; appellant asserts that he was not provided with “notice” of a crack pipe pursuant to his discovery motion.

The deputy properly testified as to what he found in the vehicle, and the trial court properly sustained the appellant’s objection to the extent that the glass tube found by the deputy should not be referred to as a “crack pipe,” until a proper foundation was laid. No motion for mistrial was made, and no curative instructions were requested. Accordingly, we find no error. Reddin v. State, 223 Ga. App. 148, 153 (476 SE2d 882) (1996); Harris v. State, 202 Ga. App. 618, 619 (414 SE2d 919) (1992).

With regard to his allegations concerning a discovery violation, appellant’s motion for discovery was filed under those provisions applicable prior to the enactment of the “new discovery act,” OCGA § 17-16-1 et seq. The glass tube about which he complains was not tested, was not tendered, and appellant was not charged with its possession. Appellant fails to provide this Court, either factually or by way of legal authority, with any basis for the reversal of his conviction for failure to notify the appellant about the glass tube. Further, appellant has “failed to show any type of Brady violation or prejudice arising therefrom.” Pope v. State, 207 Ga. App. 543 (428 SE2d 439) (1993). This enumeration of error is without merit.

Case No. A97A0835

6. Appellant Jones raises a constitutional challenge to the admissibility of a Certificate of Drug Analysis, state’s Exhibit 4, pursuant to OCGA § 35-3-16. At trial, the court asked for objections to the admissibility of state’s Exhibits 2, 3, and 4. After an answer from his co-defendant’s attorney and reply by the state, appellant’s counsel stated, “No objections on behalf of Mr. Jones, your honor.” We find this statement sufficient to waive any constitutional challenge to the admissibility of the certificate, appellant’s arguments to the contrary notwithstanding. Shirley v. State, 254 Ga. 723 (334 SE2d 154) (1985); Arp v. State, 249 Ga. 403 (1) (291 SE2d 495) (1982); see also Lee v. State, 223 Ga. App. 438, 439 (2) (477 SE2d 872) (1996).

Decided March 11,1997

Reconsideration denied March 24,1997

Hemmann & Hemmann, Paul E. Hemmann, for appellant (case no. A97A0835).

William A. Fears, for appellant (case no. A97A0836).

Tommy K. Floyd, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

7. Finally, appellant Jones assigns error to the trial court’s denial of his motion for new trial “[f]or all the reasons set forth in the enumerations.” Therefore, for all the reasons set forth herein, we find this assertion to be meritless.

Judgment affirmed.

Birdsong, P. J, and Ruffin, J., concur.


author: Smith, Judge.

text:
    A97A0090.
    RENSCHEN v. THE STATE.
    (484 SE2d 753)
   Smith, Judge.

Timothy Renschen was found guilty by a jury of making an improper U-turn, OCGA § 40-6-121, and DUI, OCGA § 40-6-391 (a) (1); (a) (4). He appeals from the judgment of conviction and sentence entered thereon following the denial of his motion for new trial.

The evidence presented showed that a member of the DeKalb County Strategic Traffic Accident Reduction (STAR) team saw Renschen make an improper U-turn on Interstate 285 at about 4:30 a.m. When the officer stopped Renschen, he noticed that his eyes were bloodshot and watery and that he smelled moderately of alcohol. The officer administered a series of field sobriety tests, after which he placed Renschen under arrest. The officer read to Renschen his implied consent rights, and Renschen submitted to a State-administered breath test on the Intoxilyzer 5000.

1. Renschen contends the trial court erred by admitting the breath test results into evidence because the State failed to prove that the Intoxilyzer 5000 was “valid” pursuant to OCGA § 40-6-392 (a) and the Administrative Procedure Act, OCGA § 50-13-1 et seq. This contention is controlled adversely to Renschen by our holding in Corner v. State, 223 Ga. App. 353 (477 SE2d 593) (1996).

2. Renschen also maintains the trial court erred in admitting the breath test results into evidence because the State failed to prove that the test was performed on “a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order,” as required by OCGA § 40-6-392 (a) (1) (A). We do not agree.

The State showed that the machine used was certified as being in good working order by the Division of Forensic Sciences of the Georgia Bureau of Investigation. The officer who performed the test on Renschen also testified that the machine was in good working order and was performing properly. This was sufficient to satisfy the statute’s requirements.

3. To prove that the Intoxilyzer 5000 was in good working order, the State tendered into evidence the certificates of inspection showing that the machine had been examined by the Division of Forensic Sciences of the GBI. Renschen objected to the admission of these certificates because the State had failed to provide them to him in response to his request for statutory discovery pursuant to OCGA § 17-16-23. Renschen enumerates as error the trial court’s ruling admitting the certificates into evidence over his objection.

The trial court did not err. The statute provides that “[i]n all criminal trials the defendant shall be entitled to have a complete copy of any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant by the prosecution in its case-in-chief or in rebuttal.” OCGA § 17-16-23 (b). As used in OCGA § 17-16-23, “the term ‘written scientific reports’ includes . . . reports from the Division of Forensic Sciences of the Georgia Bureau of Investigation.” Our courts have held, however, that not all written documents appearing to fit within the ambiguous definition in the statute are “reports” that are discoverable.

It is clear that the “reports” enumerated in the statute refer to tests performed in the course of a criminal investigation involving the defendant. In State v. Mulkey, 252 Ga. 201 (2) (312 SE2d 601) (1984), the defendant contended the trial court erred in admitting reports of ignition tests; those tests were performed several years before occurrence of the crime of arson being tried. The Supreme Court held that these documents wére not such reports as were discoverable under the predecessor statute to OCGA § 17-16-23 because they “did not originate in the [Sjtate’s investigation and preparation for trial.” Id. at 203. They were merely a portion of the background experience and knowledge of the State’s expert. Like the ignition tests in Mulkey, the certificates showing the inspection of the Intoxilyzer in this case were not generated in the course of the State’s investigation of the crimes of which Renschen was accused, but as routine and ongoing actions necessary to law enforcement. They would have been performed even had Renschen not been accused of these crimes. As we held recently in Harmon v. State, 224 Ga. App. 890, 892 (3) (a) (482 SE2d 730) (1997), such certificates are not “scientific reports” discoverable under OCGA § 17-16-23. Mulkey, supra at 202-204 (2). See also White v. State, 263 Ga. 94, 98 (6) (428 SE2d 789) (1993) (blood typing performed on accused by American Red Cross prior to and unrelated to alleged crime investigation not “scientific report” discoverable under predecessor statute to OCGA § 17-16-23).

Decided March 24,1997

William C. Head, for appellant.

Ralph T. Bowden, Jr., Solicitor, Michael D. Johnson, W. Cliff Howard, Assistant Solicitors, for appellee.

4. Our decision that the trial court did not err in admitting the breath test results renders moot Renschen’s remaining enumeration of error.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    A97A0773.
    CANTRELL v. THE STATE.
    (484 SE2d 751)
   Beasley, Judge.

Cantrell appeals his convictions of aggravated sodomy (OCGA § 16-6-2), aggravated child molestation (OCGA § 16-6-4 (c)), and child molestation (OCGA § 16-6-4 (a)).

The victim was age seven at the time of the offenses and nine at the time of trial. During the fall of 1994, he and his parents lived in an apartment with their cousin Brock. Cantrell, who was the victim’s uncle, and Brock babysat for him at Brock’s apartment. The child testified that on one occasion, Cantrell placed his hand on the victim’s penis. He told his mother the same day; she in turn told his father. When the parents confronted Cantrell, he said he and the child had been engaged in nothing more than horseplay, and the parents warned Cantrell not to do it again.

The child and his parents left Georgia in November but returned the following March. They moved into an apartment below Brock’s. For several months after their return, the child spent time with Cantrell on camping trips and at the home of a friend of Cantrell’s. During these times Cantrell placed his hand on the child’s penis, placed the child’s hand on Cantrell’s penis, put his mouth on the child’s penis, and showed the child movies depicting men performing homosexual acts.

According to the mother, the child began to act very upset, disturbed, and depressed during this period. He would not tell her what was wrong. On September 10, shortly after camping with Cantrell, the child returned from a visit with his grandmother and told his parents what Cantrell had been doing. At the time, the parents were angry at Cantrell over other matters. After the disclosure, the father ran upstairs to Brock’s apartment and started a fight with Cantrell. The police were summoned and the parents told police that Cantrell had been molesting their son.

Decided March 24,1997.

Cantrell sought to cross-examine the child concerning an alleged conversation between the child and Brock in which he asked her if she ever “sucked a mam’s thing” and then proceeded to tell her that, while he and his parents were living in a motel, he saw his mother do this to a man when his father was away. Brock said the child begged her not to tell his father. Cantrell also sought to cross-examine the victim concerning his access to certain pornographic magazines owned by his father but found in the child’s possession. The court sustained the State’s objection to this questioning, and Cantrell contends that he had a right to show by this evidence that the child had acquired knowledge of sexual matters from his parents.

“ Absent a showing of relevance, evidence of a child’s past sexual history, including acts committed by persons other than (the) accused, is inadmissible. (Cits.)’ [Cit.] Moreover, ‘evidence of a prior molestation or previous sexual activity on the part of the victim is not relevant in a child molestation case to show either the victim’s reputation for nonchastity or [his] preoccupation with sex. (Cit.)’ [Cit.]” Burris v. State, 204 Ga. App. 806, 809 (2) (420 SE2d 582) (1992). “ ‘The scope of cross-examination is not unlimited and the extent thereof lies within the sound discretion of the court. (Cit.) An irrelevant or immaterial line of inquiry may be curtailed without violence to a defendant’s permissible scope of cross-examination. (Cit.) . . .’ [Cits.]” Meadows v. State, 190 Ga. App. 662, 664 (2) (380 SE2d 326) (1989).

The trial court did not abuse its discretion in ruling that any knowledge acquired by the child through observation of his mother performing oral sex on a man, and through possession of certain magazines owned by his father, was not relevant to the issue of whether the defendant committed the acts with which he was charged. Accord Harris v. State, 189 Ga. App. 49 (1) (375 SE2d 122) (1988) (physical precedent only); Ortiz v. State, 188 Ga. App. 532 (1) (374 SE2d 92) (1988); Chastain v. State, 180 Ga. App. 312 (2) (349 SE2d 6) (1986).

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

Neil A. Smith, for appellant.

Lydia J. Sartain, District Attorney, for appellee.


author: Pope, Presiding Judge.

text:
    A96A1707, A96A1813.
    In the Interest of J. J., a child (two cases).
    (484 SE2d 681)
   Pope, Presiding Judge.

J. J., who was four years old at the time of hearings held in December 1995 and January 1996, has lived with the Lamberts, her maternal great aunt and uncle, for most of her life. Wanting to adopt J. J., the Lamberts filed a petition to terminate the parental rights of her father and mother. The Department of Family & Children Services (“DFCS”) opposed the petition, taking the position that the father, who already has custody of J. J.’s two siblings, is a fit parent and should be reunited with J. J. The juvenile court nonetheless granted the Lamberts’ petition and terminated the rights of both parents. The father appeals this decision in Case No. A96A1707, and the mother appeals in Case No. A96A1813. Concluding that the evidence is insufficient to support the juvenile court’s determination that the father is an unfit parent, we reverse the termination of his parental rights in Case No. A96A1707. The evidence is sufficient to support the juvenile court’s conclusion that the mother is unfit. The court’s subsequent conclusion that it is in J. J.’s best interest to terminate the mother’s parental rights was based on its determination that it was in J. J.’s best interest to stay with the Lamberts permanently, however. As this outcome is not possible in light of our reversal in Case No. A96A1707, we vacate the juvenile court’s decision in Case No. A96A1813, and remand to allow the court to consider whether it is in J. J.’s best interest to terminate the mother’s parental rights if the father’s rights are not terminated.

1. The parents first challenge the Lamberts’ standing to bring a petition to terminate their parental rights. Any person with knowledge of the facts may file a deprivation petition under OCGA § 15-11-24, however, and OCGA § 15-11-82 (b) makes this provision applicable to petitions to terminate parental rights as well.

2. The parents have three children: A. J., born in 1989; M. J., born in 1990; and J. J., born in 1991. In early 1992, while the father was incarcerated, the mother left the two older children with their paternal grandparents and J. J. with the Lamberts.

The father was in and out of jail until late 1993, on charges ranging from shoplifting to throwing eggs at cars to forging a $200 check. He acknowledges that he drank and smoked marijuana heavily during this period. He did not make any child support payments until 1994 and failed to make regular child support payments until automatic payroll deductions began in July 1995.

In the past two years, however, the father has made significant progress in his life. He has a new wife who is stable and supportive, and he no longer drinks heavily or smokes marijuana. He has worked for the same company since September 1994 and has been promoted to supervisor. He has stayed out of legal trouble and has passed random drug tests. He has attended parenting/nurturing classes with his new wife, and has been visiting J. J. regularly (though it does not appear that they have “bonded”). In short, with the exception of the lack of “bonding,” he has fully complied with the Case Plan worked out with DFCS for more than a year. Moreover, the two older children have lived with the father since April 1995 with no apparent problems, and DFCS considers him to be a fit parent.

In order to terminate a parent’s rights, there must first be clear and convincing evidence of parental misconduct or inability; only then may the court consider whether termination of parental rights is in the best interest of the child. OCGA § 15-11-81 (a). Moreover, past unfitness alone is insufficient; clear and convincing evidence of present unfitness is required. In re A. J. M., 169 Ga. App. 477, 478 (313 SE2d 495) (1984).

Here, we have a father who is presently complying with his DFCS Case Plan and raising J. J.’s two older siblings. Despite his past misconduct, the only evidence of the father’s present unfitness is the expert opinion of a psychologist (based on the results of a psychological test, a brief meeting with the father, and a brief viewing of the father interacting with J. J. in an artificial setting) that the father is cynical, has an anti-social personality, has “poor parenting skills,” and is not a good role model. The psychologist noted that the father did not have a “full-blown” personality disorder, however, and acknowledged that the father had improved and could improve in the future. The psychologist’s opinion is a factor to be considered. But in light of the father’s current behavior, it simply does not constitute clear and convincing evidence of the type of parental unfitness which will justify the loss of his child. Accordingly, the trial court’s finding of unfitness on the part of the father cannot be upheld, and its judgment terminating the father’s parental rights is reversed.

3. This does not mean that J. J. must immediately be taken from the custody of the Lamberts — as long as the Lamberts are willing to cooperate with a plan to gradually transfer physical custody to the father over the next six months to a year. On remand, the court and the parties, with the help of experts if desired, should develop such a plan.

Decided March 5,1997

Reconsideration denied March 25,1997.

Burkhalter & Stephens, Terri B. Stephens, for appellant (case no. A96A1707).

Richard E. Barnes, for appellant (case no. A96A1813).

Farless & Newton, William H. Newton III, James P. Orr, Harl C. Duffey III, Lord, Bissell & Brook, Terry R. Howell, for appellee.

Brown, Hendrix & Sullivan, Michael A. Sullivan, George Spears, amici curiae.

4. Unlike the father, the mother continues to be unstable and does not provide any support for J. J. Thus, the trial court’s finding of unfitness on her part is supported by the evidence.

But the trial court’s decision to terminate the mother’s rights was based on its conclusion that it was in J. J.’s best interest to stay with the Lamberts. In light of our decision in Division 2, this is not possible. We therefore remand Case No. A96A1813 as well, to allow the court to reconsider whether termination of the mother’s parental rights is in J. J.’s best interest if the father’s rights are not terminated.

Judgment in Case No. A96A1707 reversed and case remanded. Judgment in Case No. A96A1813 vacated and case remanded.

Andrews, C. J., and Smith, J., concur.

On Motion for Reconsideration.

In their motion for reconsideration, the Lamberts ask us to vacate our decision because of developments which have occurred since the hearings in this case. We deny this request, but we note the limited nature of our holding: the Lamberts failed at the prior hearings to establish by clear and convincing evidence that the father was an unfit parent at that time. If circumstances have changed, the Lamberts may file a petition for relief under OCGA § 15-11-42 (b) & (c).

       While bonding is important, it is impossible without the cooperation of the Lamberts; and the record shows the Lamberts have withheld their cooperation in the reunification process up to this point.


text:
    A96A1922.
    SEITH v. THE STATE.
    (484 SE2d 690)
   Pope, Presiding Judge.

.After being involved in a car accident that resulted in a fatality, defendant Scott Thomas Seith was convicted during a bench trial of second degree vehicular homicide and driving with a prohibited substance in his blood. See OCGA §§ 40-6-393 (b); 40-6-391 (a) (5). On appeal, he contends the trial court erred in failing to suppress the evidence of a blood test demonstrating that he had marijuana in his blood at the time of the accident, and thus, that his conviction for driving with a prohibited substance in his blood should be reversed. Defendant argues that the results of the blood test were inadmissible because defendant had actually been arrested when he was asked to sit in a patrol car at the scene of the accident, but was not given his implied consent rights at that time as required by OCGA § 40-6-392 (a) (4). Finding no merit to defendant’s argument, we affirm.

Under OCGA § 40-6-392 (a) (4), a person who is arrested for violating any of the provisions of OCGA § 40-6-391 must be informed of his implied consent rights at the time of arrest, or as soon thereafter as circumstances may warrant. See Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983). “The . . . test for determining whether a suspect has been arrested is whether a reasonable person in the suspect’s position would have thought [his] detention would not be temporary.” (Citation omitted.) State v. Corbett, 205 Ga. App. 554, 556 (423 SE2d 38) (1992).

In the instant case the evidence shows that defendant’s truck was involved in a collision with a truck driven by Tony Sherrer at Bethel Road’s intersection with State Highway 20 in Rockdale County. It is undisputed Sherrer was seriously injured. Unable to question Sherrer, the officer that responded to the accident, Deputy Ellington, asked defendant some basic questions about the collision. Defendant was cooperative and did not appear to be intoxicated or under the influence of any substance. Defendant told Ellington that defendant had stopped at the stop sign located on Bethel Road before attempting to enter the intersection. Defendant claimed that he proceeded through the Bethel Road stop sign into the intersection after seeing no cars on Highway 20. He further claimed that once he entered the intersection, he failed to notice any approaching cars until his truck was struck by Sherrer’s truck.

After obtaining the above information and documenting some of the physical evidence at the scene, Ellington told defendant that Georgia law required him to obtain a blood sample from defendant because he had been involved in a serious accident. See OCGA § 40-5-55 (a). Defendant agreed. Ellington then asked defendant to sit in the back of Ellington’s patrol car while he finished documenting evidence, some of which was temporary in nature. Ellington informed defendant that the reason he wanted him to sit in the patrol car was for defendant’s own benefit in that Ellington wanted to make sure defendant did not obtain and ingest any intoxicants prior to the blood test. Defendant sat in the patrol car with the window rolled down until Ellington finished investigating the scene and collecting debris therefrom. At no time did Ellington ever tell defendant he was under arrest or would be charged with anything.

Subsequently, Ellington transported defendant to a hospital for the blood test. They arrived at the hospital within 15 to 20 minutes of the time defendant first sat down in the patrol car, and within approximately an hour of the accident. Upon arrival, Ellington read defendant his implied consent rights. Defendant stated that he understood his rights and agreed to take the state administered blood test. After the blood test, Ellington discovered Sherrer had died and told defendant. Defendant was advised that no charges were pending against him at that time, and was allowed to leave the hospital. Defendant was not charged with any violations until Ellington completed his investigation the day after the accident.

Applying the abovementioned objective test to the facts presented in the instant case, we conclude that defendant was not under arrest prior to the time he took the blood test in question. Based on the circumstances surrounding the accident and the discourse between Ellington and defendant there is simply no objective evidence from which a reasonable person in defendant’s position could have concluded that his detainment would be more than temporary. Absent an arrest, the dictates of OCGA § 40-6-392 (a) (4) are not applicable.

Moreover, it is clear from Ellington’s unrefuted trial testimony that defendant was requested to take a blood test only because he was involved in an accident with serious injuries. OCGA § 40-5-55 (a) specifically authorizes. pre-arrest testing of the type in this case, including drug screening, for any person operating a motor vehicle in this state who is involved in a traffic accident resulting in serious injuries or fatalities. See Brown v. State, 218 Ga. App. 469, 470 (1) (462 SE2d 420) (1995); Lewis v. State, 215 Ga. App. 796 (452 SE2d 228) (1994). Although OCGA § 40-5-55 (a) provides that such i£[t]est or tests shall be administered as soon as possible to any person who operates a motor vehicle upon the highways or elsewhere throughout this state who is involved in any traffic accident resulting in serious injuries or fatalities [,]” it does not specifically state when the implied consent warning must be read to such persons in the absence of an actual arrest. Lacking any legislative direction on the matter, we hold that absent an arrest, when possible, a person involved in an accident resulting in serious injuries or fatalities must be informed of his implied consent rights within a reasonable amount of time after the accident, as determined by the circumstances, and, when possible, before the administration of any state test or tests authorized by and performed in accordance with OCGA §§ 40-5-55 and 40-6-392.

Decided March 7,1997

Reconsideration denied March 25,1997.

Terry N. Massey, for appellant.

Cheryl F. Custer, District Attorney, Sara D. Yarbrough, Assistant District Attorney, for appellee.

Based on the facts and circumstances involved here, including the nature of the accident and the need for Ellington to document and retrieve temporary evidence from the scene in furtherance of his investigation, we hold that defendant’s blood test was administered as soon as practicable under the circumstances. We also hold that defendant was advised of his implied consent rights within a reasonable amount of time after the accident, and it is undisputed that this was before he was given the blood test. Accordingly, we conclude the trial court did not err in denying defendant’s motion to suppress the results of his blood test. And, based on the results of that test, defendant’s conviction for driving with a prohibited substance in his blood was authorized under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Andrews, C. J., and Smith, J., concur.

       In cases involving accidents with serious injuries or fatalities where an arrest is made prior to any state administered testing, the requirement found in OCGA § 40-6-392 (a) (4) that the arrested individual be given his or her implied consent rights at the time of arrest is applicable under the express terms of OCGA § 40-5-55 (a).


author: Eldridge, Judge. Ruffin, Judge,

text:
    A97A0161.
    FARLEY v. THE STATE.
    (484 SE2d 711)
   Eldridge, Judge.

Anthony James Farley, appellant, was convicted on October 12, 1995, of armed robbery and sentenced to serve five years. Appellant’s motion for new trial was denied on March 20, 1996. Appellant timely filed his notice of appeal on April 15, 1996.

On September 13, 1993, at about 10:05 p.m., the Super 8 Motel on Sullivan Road in College Park, Clayton County, was held up at gunpoint and cash was taken by appellant. Dian J. O’Hara was the night duty clerk who was forced at gunpoint to give up the money. The appellant entered the motel lobby through the front door, approached the desk and inquired about a room, appeared to leave when told that no rooms were available, and then returned to the manager’s office with a drawn gun demanding money. O’Hara described appellant as being a black male, in the mid-thirties, approximately five foot eight inches tall, about 160 pounds in weight with a droopy eye, and wearing a dirty, white tee shirt, beach type shorts, and a baseball cap. As appellant left with the money, he jerked the telephone out of the manager’s office, dropped it in the lobby, and pushed open the glass front door with his bare hands. The glass door was cleaned daily, usually between 7:30 and 8:30 p.m., and had been cleaned that evening prior to the armed robbery. Detective E. W. Strozier, who had been trained in lifting fingerprints, dusted the telephone and the front door and successfully lifted two good latent prints from the clean door glass, but all other prints were too smudged to be used. The detective sent the prints to the State Crime Laboratory where the AFIS (Automated Fingerprint Identification System) screened the prints for a tentative match with appellant’s fingerprints on file there; crime lab technician Larry Hankerson, a fingerprint identification expert, examined the latent prints from the Super 8 Motel with the identification card containing appellant’s prints and determined that the prints matched. Deputy Sheriff Samuel Smith of the Clayton County Sheriff’s Department, a fingerprint identification expert, at trial also identified the latent prints and appellant’s fingerprint card as a match.

In the lobby of the motel was a video camera, which took still pictures of the lobby every four seconds and then rotated to take a picture of the rear door. The crime lab was able to enhance the two single frames that showed appellant so that he was recognizable. The armed robbery, as determined by the timing from the video, took less than 49 seconds. About one month after the crime lab print identification work, the detective took a photo array of six different black males, including appellant, to O’Hara to see if she could identify appellant; the eyewitness picked appellant out without any trouble. A warrant for the arrest of appellant was obtained. After arrest and Miranda warnings had been given and appellant agreed to talk, appellant initially stated that he did not know where College Park was and had not been in the motel; he later admitted that the picture was of him. At trial appellant chose not to testify in his own defense. O’Hara made a positive in-court identification of appellant as the armed robber.

After O’Hara had testified, the defense counsel made an offer of proof about what happened at a bench conference where he sought permission to cross-examine O’Hara regarding any prejudice that she might have against black males. Counsel did not seek to cross-examine O’Hara outside the presence of the jury to lay a proper foundation for such questioning nor did he ask the witness O’Hara if she held any ill will or prejudice against appellant for the armed robbery. His offer of proof on the record was that, “she had indicated to me very strongly prior to coming to trial today that she had been robbed and recently raped by a black male and that now she actually did have a problem with blacks. ... I wanted to . . . ask the Court for its permission to properly cross examine her. ... If that doesn’t go to attack her credibility .and her bias towards black males whom she’s also accused of robbing her. . . . She specifically is the witness that can identify this particular man who is black. That’s relevant as to her bias and credibility. It’s extremely relevant that perhaps then she was also bias. Now it’s coming out that she’s been violently attacked by another black male, so she has a bias there. . . . [S]he stated that yes now she has a problem with blacks. She has a problem with blacks.” The district attorney objected on the grounds of relevancy, because this armed robbery and rape about which defense counsel wished to cross-examine the witness had occurred after, not only to the case sub judice, but also after the photo array identification of appellant. The trial court denied the right to cross-examine upon such subject matter.

Appellant’s sole enumeration of error is that the trial court erred in not permitting a thorough and sifting cross-examination into the racial bias and credibility of the state’s eyewitness, who was the crime victim and was the only direct evidence linking the defendant with the crime.

The two enhanced video camera photographs of appellant during the armed robbery were direct evidence that appellant committed the crime; appellant’s fingerprints taken from the door immediately after the crime from a freshly cleaned surface also constituted direct evidence. The description of appellant given immediately after the crime, the positive identification by O’Hara 30 days after the crime, and her in-court identification of appellant, all proved the guilt of appellant beyond a reasonable doubt. Although appellant’s counsel on cross-examination raised several conflicts in O’Hara’s testimony as to which eye drooped, which hand the gun and money were in when appellant exited the motel, and when, precisely, the front door glass was cleaned, the jury, apparently, found O’Hara’s testimony sufficiently corroborated by fingerprints and action photographs as to be sufficient to prove appellant’s guilt. Moreover, O’Hara made the identification of appellant prior to the second armed robbery and rape so that identification of appellant could not have been affected by what had occurred subsequently. O’Hara underwent extensive cross-examination and was even recalled by the defense during the defense case for further examination as a witness for the defense.

In Davis v. Alaska, 415 U. S. 308, 316 (94 SC 1105, 39 LE2d 347) (1974), the United States Supreme Court held that “[cjrossexamination is the principal means by which the believability of a witness and the truth of his testimony are tested. . . . [T]he cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness. One way of discrediting the witness is to introduce evidence of prior criminal conviction of that witness. By so doing the cross-examiner intends to afford the jury a basis to infer that the witness’ character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony. The introduction of evidence of a prior crime is thus a general attack on the credibility of a witness. A more particular attack ... is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev. 1970). We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Greene v. McElroy, 360 U. S. 474, 496 (1959).” (Footnote omitted; emphasis supplied.) See accord Hines v. State, 249 Ga. 257, 259-260 (2) (290 SE2d 911) (1982).

The bias and prejudice of Davis v. Alaska, supra, must be specific to the case, arising from a self-interest or self-preservation motive that could be reasonably inferred to cause testimony to be shaded or distorted by a trier of fact; a generalized attitude would not satisfy such interest of the witness, especially when such attitude arises after the fact. Absent such foundational facts such as a pending criminal charge about which the witness seeks assistance from the prosecution, there can be no cross-examination on such subject, because a dismissed charge or an old conviction could not be the basis of a motive to shade or distort testimony. Wright v. State, 266 Ga. 887, 889 (2) (471 SE2d 883) (1996); accord Justice Stewart’s concurrence in Davis v. Alaska, supra at 321; see also Kinsman v. State, 259 Ga. 89, 91 (7) (b) (376 SE2d 845) (1989); Baynes v. State, 218 Ga. App. 687, 690-691 (4) (463 SE2d 144) (1995); McBee v. State, 210 Ga. App. 182 (1) (435 SE2d 469) (1993); White v. State, 201 Ga. App. 53, 55 (2) (410 SE2d 441) (1991). A charge that was dismissed prior to the trial would not permit a cross-examination into it for such purpose. Williams v. State, 172 Ga. App. 87 (2) (322 SE2d 98) (1984).

In Delaware v. VanArsdall, 475 U. S. 673 (106 SC 1431, 89 LE2d 674) (1986), the Supreme Court reaffirmed Davis v. Alaska, supra, regarding cross-examination of a witness with pending criminal charges as reflecting possible self-interest in assisting the prosecution. “We think that a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’ Davis v. Alaska, supra at 318. Respondent has met that burden here: A reasonable jury might have received a significantly different impression of Fleetwood’s credibility had respondent’s counsel been permitted to pursue his proposed line of cross-examination.” Delaware v. Van Arsdall, supra at 680.

Following Delaware v. Van Arsdall, the United States Supreme Court reversed in Olden v. Kentucky, 488 U. S. 227 (109 SC 480, 102 LE2d 513) (1988), finding a violation of the right to confrontation. The defendant, a black male, was convicted of raping his half-brother’s lover, a white female, who was married to another, but at the time of trial was living with the half-brother. The defense was that sex had been consensual and that the woman, at her request, had been let out of the car near the brother’s home; the brother saw him drive off after leaving the woman and immediately became suspicious of them; the defense was that the woman falsely claimed that the defendant had raped her to protect her relationship with his brother. The trial court prohibited cross-examination as to the relation between the woman and the brother at the time of trial and that they were living together at that time as evidence of her motive to lie. The woman had been impeached by numerous conflicts in testimony regarding how many men had raped her or aided in the rape. The specific area of inquiry on cross-examination was highly relevant to the case, was supported by known facts, and involved the witness’ self-interest as it related to the facts of the case, which was similar to Davis v. Alaska, supra. Race was a tangential issue and was not the underlying purpose for the cross-examination, however, it was a factor in the exclusion by the trial court. See also Gibbs v. State, 196 Ga. App. 140 (3) (395 SE2d 387) (1990) (holding that cross-examination was not applicable on the facts).

For specific cross-examination as to bias and prejudice, such bias and prejudice must be related to the facts of the case, and the facts must show a self-interest or self-preservation motive to lie in such case, itself; there must be a factual predicate laid outside the presence of the jury to permit such cross-examination. Such evidence must demonstrate not merely a fishing expedition, but must show a specific bias for the prosecution or prejudice against the accused arising from a self-interest, so that a reasonable trier of fact could infer the likelihood of testimony being shaded or falsified as a consequence. Absent such factors being present, there would be no denial of the right of confrontation within the meaning of Davis v. Alaska, supra. See also Johnson v. State, 258 Ga. 504, 505 (3) (371 SE2d 651) (1988); Thomas v. State, 199 Ga. App. 586, 588-591 (5) (405 SE2d 512) (1991), rev’d on other grounds, 261 Ga. 854 (413 SE2d 196) (1992).

"On the contrary, the trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, supra at 679; Gibbs v. State, supra at 142. To justify court sanctioned fishing in the murky and dangerous currents of racial bias or prejudice, there must be a foundation laid, sufficient to justify the risk of dredging up passions that may overcome the jury or the public, undermining the administration of justice and the perception of equal justice. Only a potential violation of due process by denial of the right of confrontation in the proper case, supported by the proper evidentiary basis, will justify the application of the balancing test in Davis v. Alaska, supra, permitting such cross-examination. General racial bias or prejudice alone would not be sufficient. Such bias or prejudice must be accompanied by a showing that there exists evidence of a specific intent to harm the accused such that a rational trier of fact could reasonably infer shading of evidence or deception or a personal self-interest or self-preservation motive by the witness, in such case, that could give rise to an inference of deception or shading the evidence against the accused. Such foundation would have to be established outside the presence of the jury to satisfy the trial court that it can be factually proven. In the case sub judice, no such evidence was proffered, and only a generalized negative attitude, arising after the facts about which the witness testified, could be shown which was not established as hostile to appellant. The identification occurred long before the occurrence that gave rise to the negative feelings, so that the identification could not have been influenced by such feelings. There was no violation of the right of confrontation in the case sub judice.

Hardy v. State, 223 Ga. App. 597 (478 SE2d 423) (1996) provides no support to appellant’s appeal, because in that case the statement of a co-defendant, which was inculpatory to Hardy, was admitted over objection and the co-defendant refused to testify at trial so that Hardy was denied the right of confrontation by the admission of the hearsay statement and the co-defendant’s assertion of his Fifth and Fourteenth Amendment rights against self-incrimination. In such case there was a total denial of the right of cross-examination as part of the constitutional right of confrontation. In such case there was an unquestioned violation of a constitutional right under the United States Constitution; in light of such admitted constitutional violation, the determination of harm had to be made based upon United States Supreme Court standards and not state standards. In the case sub judice, the appellant was allowed a thorough and sifting cross-examination and the trial court exercised its discretion in limiting, not denying, areas of inquiry, which Delaware v. Van Arsdall, supra at 679-680, held was permissible. This Court has found no constitutional right of confrontation violation so that the constitutional analysis of harm does not apply.

OCGA § 24-9-68 provides that “[t]he state of a witness’s feelings toward the parties and his relationship to them may always be proved for the consideration of the jury.”

“[I]f the prosecutor was a witness against the defendant, then the state of his feelings, or any other witness’ feelings, toward the defendant may be proved for the consideration of the jury as illustrating their credibility. Walker v. Rome, 6 Ga. App. 59 (64 SE 310) [(1909)]. But the rule relative to the procedure to prove ill feeling is that, if the witness is asked if he has ill will toward the defendant and replies in the affirmative, it is not competent to go into the particulars of the ill feeling or the cause of the hostility. To admit such testimony would multiply issues and tend to confuse the jury. Had the witness replied that he had no ill will, it would have been proper on further cross-examination to ask about an occurrence which, if true, would have authorized a finding that ill will existed. Had the witness denied that, the accused would have been entitled to prove the contrary. But this would not justify an investigation of a mere collateral issue or of the particulars of the occurrence. McDuffie v. State, [121 Ga. 580, 584 (7) (49 SE 708) (1905)]. Here the witness had not been asked whether he had unkindly feelings toward the accused, and it was not competent to go into the details of the occurrence in question. [Cits.]” Walker v. State, 74 Ga. App. 48, 50 (1) (39 SE2d 75) (1946). See accord Robinson v. Murray, 198 Ga. 690, 704-705 (7) (32 SE2d 496) (1944); Collins v. State, 191 Ga. App. 289, 291 (3) (381 SE2d 430) (1989); see also Shropshire v. State, 210 Ga. App. 241, 242 (1) (435 SE2d 700) (1993).

In the case sub judice, the witness was never asked what her personal feelings were toward the accused so that further inquiry into the basis for any bias or prejudice that she might have against African-Americans would not be relevant, because the required foundation had not been laid to show her feelings toward appellant. If she answered that she had ill will against the appéllant, then the inquiry could go no farther. If she answered that she had no ill will, then the appellant would be able to go into the occurrence of the subsequent armed robbery and rape by an African-American male, but would not be able to go into the statement about her racial feelings in general or her statement to defense counsel, because the jury would be permitted on their own to draw an inference of ill will or hostility against appellant from the fact of the occurrence and not from any generalized attitude or “particulars of the occurrence.” Walker v. State, supra at 50; Collins v. State, supra at 291.

“A witness may be discredited by showing that his impartiality is affected by motives arising from interest or partisanship, bias, or prejudice. The hostility of the witness may be shown by the witness himself or by extrinsic evidence, but the evidence must be direct and pointed and not indirect and uncertain; and the unfriendly feeling must be shown to exist at the time of trial. [Cit.] The extent to which a witness may be cross-examined is ordinarily a matter of discretion with the presiding judge. . . . But the court has the right to require that the questions be direct and positive and in a proper form, not argumentative, which will call for a clear and direct answer, thus expediting the trial of the case and avoiding the injection into the case of collateral issues not material to the determination of the cause.” Loomis v. State, 78 Ga. App. 153, 167-168 (8) (51 SE2d 13) (1948); see Davis v. State, 266 Ga. 801, 803 (6) (471 SE2d 191) (1996); Arnold v. State, 163 Ga. App. 10, 13 (4) (293 SE2d 501) (1982).

Collateral attack on the credibility of a witness is not a proper method of impeachment to establish bias, prejudice, interest, or corruption when such attack is founded upon irrelevant or even marginally relevant evidence. See Haynes v. State, 180 Ga. App. 202, 203-204 (3) (349 SE2d 208) (1986); Parrish v. State, 141 Ga. App. 631, 632 (2) (234 SE2d 174) (1977); see also Lee v. State, 258 Ga. 762, 763 (6) (374 SE2d 199) (1988); Hicks v. State, 256 Ga. 715, 720 (13) (352 SE2d 762) (1987); Brown v. State, 250 Ga. 862, 866 (5) (302 SE2d 347) (1983); Ramey v. State, 250 Ga. 455 (298 SE2d 503) (1983).

“Furthermore, ‘ “anything not legitimately arising out of the trial of the case, which tends to destroy the impartiality of the juror, should be discountenanced.” ’ Teasley v. State, 177 Ga. App. 554, 555 (2) (340 SE2d 32) (1986). It appearing that defense counsel’s question injected into the trial an improper element of racial bias, the trial court was authorized to exclude the evidence as irrelevant. Teasley v. State, supra.” Mitchell v. State, 200 Ga. App. 146, 148 (2) (407 SE2d 115) (1991); see also Shropshire v. State, supra.

Unless there is evidence produced outside the hearing of the jury from a witness examined under oath with regard to feelings concerning the accused and any occurrence giving rise to such feelings, to create a factual basis that racial bias or prejudice exists and, in fact, influenced the witness’ testimony or could be reasonably inferred to do so, such issue of racial bias or prejudice should not be injected into the proceedings, as such issue could tend to destroy the impartiality of the jury and because it would not be relevant. See Shropshire v. State, supra at 242; Mitchell v. State, supra at 148; Teasley v. State, supra at 555.

The trial court has broad discretion in determining the scope and extent of cross-examination; absent a clear abuse of such discretion, the action of the trial court will not be disturbed. Ruffin v. State, 243 Ga. 95 (252 SE2d 472) (1979); Davis v. State, 230 Ga. 902, 904 (199 SE2d 779) (1973); Clifton v. State, 187 Ga. 502, 508 (2 SE2d 102) (1939).

We find no abuse of discretion or error by the trial judge in excluding such cross-examination.

Judgment affirmed.

Birdsong, P. J., concurs. Ruffin, J., concurs specially.

Ruffin, Judge,

concurring specially.

The majority concludes that the trial court did not err in prohibiting Farley’s proffered cross-examination of the State’s witness. Although I disagree with that conclusion, I nonetheless conclude that we should affirm the trial court. As we examine the record for error, we must be ever cognizant of the special relationship error has with harm. If there is little or none, the trial court should be affirmed.

I write separately to express my concerns with the majority’s proposed foundational requirement for the introduction of cross-examination testimony concerning racial bias and prejudice. That requirement appears to be as follows: that the “bias or prejudice [is] accompanied by a showing that there exists evidence of a specific intent to harm the accused such that a rational trier of fact could reasonably infer shading of evidence or deception or a personal self-interest or self-preservation motive by the witness, in such case, that could give rise to an inference of deception or shading the evidence against the accused.” Majority at 692.

I note initially that although the standard appears to allow a showing of either specific intent or self-interest/self-preservation, page 690 of the majority opinion provides that the bias or prejudice “must . . . [arise] from a self-interest or self-preservation motive. . . .” (Emphasis supplied.) The same language requiring a showing of self-interest or self-preservation is also stated repeatedly on pages 691 and 692 of the majority opinion. I am not sure whether an accused must make both showings to establish the proposed foundation.

Furthermore, I cannot agree with the required showing of a “specific intent to harm the accused.” “The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’. . . ‘Our cases construing the (confrontation) clause hold that a primary interest secured by it is the right of cross-examination.’ [Cit.]” Davis v. Alaska, 415 U. S. 308, 315 (94 SC 1105, 39 LE2d 347) (1974). “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Id. at 316. An accused is permitted to attack a witness’ credibility by “cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ [Cit.]” (Emphasis supplied.) Id. at 316. Moreover, while cross-examination does not guarantee truth, it will, hopefully, make untruth more difficult.

Although Davis requires that the possible bias relate directly to the personality at hand, this is not a requirement to produce evidence that the witness have a specific intent to harm the accused. Rather, evidence of a bias against African Americans generally, where the accused is also African American, could, by inference, relate directly to the accused. “[DJefense counsel [is] permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Id. at 318.

A jury could find that a witness’ testimony is shaded by a general intent to harm the particular class of people of which the accused is a member. One pitfall with the specific intent requirement is that it ignores the real problem concerning prejudices; that they are not limited to particular individuals, but are held against particular classes of individuals. “If the prejudice is to a class, generally, in all probability it extends to individual members of the class.” State v. Harling, 170 NW2d 720, 724 (Wis. 1969). See also 81 AmJur2d, Witnesses, § 892 (1992). Clearly, this portion of the proposed requirement is too narrowly stated to avoid violations of the Confrontation Clause. See Harris v. State, 216 Ga. App. 297 (454 SE2d 146) (1995) (Confrontation Clause not violated where trial court permitted defendant to question arresting officer “regarding any bias he had toward black males. . . .” Id. at 298).

I also disagree with the requirement for a showing that the witness is racially motivated to lie because of “self-interest” or “self-preservation.” An interested witness is generally defined as one who “has a stake in the outcome of the case.” 81 AmJur2d, Witnesses, § 876 (1992). However, the harms from racial prejudice do not always arise from self-interest or self-preservation. Indeed, life’s experiences show that many instances of prejudice arise from mere ignorance. The holder of such prejudice cannot explain why it is in his or her self-interest to harbor the prejudice, but it nevertheless can influence the person’s perceptions of those within that group and is relevant in determining the credibility of the person’s statements concerning persons within the group.

Our own statute provides that “[t]he state of a witness’s feelings toward the parties and his relationship to them may always be proved for the consideration of the jury.” OCGA § 24-9-68. (Emphasis supplied.) I am aware of no cases in which we have limited the application of this statute to restrict cross-examination in the manner proposed by the majority. Rather, we have consistently held that “it is better for cross-examination to be too free than too much restricted. Wherever the purpose is to impeach or discredit the witness, great latitude should be allowed by the court in cross-examinations.” (Citations and punctuation omitted.) Letlow v. State, 222 Ga. App. 339, 342 (2) (474 SE2d 211) (1996). If the goal is to allow great latitude in discrediting a witness, then testimony concerning racial bias or prejudice against the race of the accused should be admissible even without a showing of specific intent to harm the accused or that the witness is motivated by self-interest or self-preservation.

Although I agree with the majority that a defendant should not be permitted to go on a fishing expedition before the jury in an attempt to establish racial bias or prejudice, and that there must be some foundation established, the proposed requirement is too strict. It prohibits exploration concerning known biases and prejudices that by inference a witness may harbor against the accused. The fact that a witness is prejudiced or biased against the class of people of which the accused is a member, is relevant to the witness’ credibility and the accused has the right to confront the witness before the jury concerning such fact. See id.

Finally, I do not believe it matters when a witness forms his or her prejudice or bias, so long as it exists at the time the testimony is given. Although identification of the accused was an important fact in this case, it was not the only relevant fact. The witness also testified regarding the accused’s conduct and language during the robbery. Could not that testimony also have been influenced by racial bias or prejudice? Could not a witness in any case shade his or her testimony with the intent to enrage the jury? A witness’ bias or prejudice can subtly infect all of the witness’ testimony, not just his or her identification of the accused as the perpetrator.

Although I believe the trial court erred in limiting the defendant’s cross-examination concerning the witness’ prejudice and bias, based on the evidence of record, I do not believe it caused such harm as requires a new trial. See Delaware v. Van Arsdall, 475 U. S. 673, 684 (106 SC 1431, 89 LE2d 674) (1986) (constitutionally improper denial of a defendant’s opportunity to impeach a witness for bias is subject to harmless error analysis). Accordingly, I concur in the Court’s judgment.

Decided March 12,1997

Reconsideration denied March 25,1997

Richard D. Hobbs, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.


author: Blackburn, Judge.

text:
    A97A0717.
    MILES v. WELLS.
    (484 SE2d 720)
   Blackburn, Judge.

Charles M. Wells’ driver’s license was suspended for refusing to consent to a state-administered breath test after his arrest for driving under the influence of alcohol. Following a hearing, the administrative law judge (ALJ) upheld the suspension. The superior court reversed the ALJ’s decision, on the ground that Wells was denied his right to have an independent test performed by personnel of his own choosing. The Department of Public Safety appeals from the superior court’s order.

On appeal to this Court, “our duty is not to review whether the record supports the superior court’s decision but whether the record supports the initial decision of the . . . administrative agency.” Emory Univ. v. Levitas, 260 Ga. 894, 898 (1) (401 SE2d 691) (1991). We must uphold the ALJ’s decision “if ‘any evidence’ on the record substantiates the administrative agency’s findings of fact and conclusions of law.” (Citations and punctuation omitted.) Id. Because there was evidence to support the ALJ’s finding that Wells was properly advised of his implied consent rights, we reverse the superior court and uphold the decision of the ALJ.

In reviewing the suspension of a driver’s license for failure to submit to a state-administered alcohol test, the ALJ must determine “[wjhether at the time of the request for the test or tests the officer informed the person of the person’s implied consent rights and the consequence of submitting or refusing to submit to such test.” OCGA § 40-5-67.1 (g) (2) (C). The evidence presented at the administrative hearing shows that the arresting officer, Anthony M. Smith, read Wells the statutory implied consent warning, including the part advising Wells that, after submitting to a state-administered test, he was entitled to additional tests at his own expense from qualified personnel of his own choosing. See OCGA § 40-5-67.1 (b). Wells agreed to submit to a state-administered breath test, and stated that he also desired an independent test. However, he did not specify where or by whom he wished such test administered. Officer Smith then said that he would take Wells to the emergency room at the local hospital after Wells had taken the state-administered test. Wells contends that this statement implied that any independent test must be performed at the hospital, and thus effectively negated Smith’s earlier statement that Wells would be entitled to have such test administered by qualified personnel of his own choosing. Thus, Wells contends that he was not properly advised of his implied consent rights and is not subject to license suspension.

In his decision upholding the suspension, the ALJ rejected this argument and found that Wells had been informed of his implied consent rights. However, on appeal, the superior court found that Officer Smith’s statement that he would take Wells to the local hospital for an independent test effectively denied Wells his right to an independent test by qualified personnel of his own choosing.

The superior court erred in reversing the ALJ. The fact that Wells was not actually allowed an independent test is irrelevant, since Wells was not entitled to an independent test after refusing the state-administered test. See OCGA § 40-5-67.1 (b); Modlin v. State, 176 Ga. App. 83 (335 SE2d 312) (1985). The relevant question is whether Smith properly informed Wells of his implied consent rights when he asked Wells to submit to the state-administered test. OCGA § 40-5-67.1 (g) (2) (C).

There is no dispute that Officer Smith read Wells the statutory implied consent warning, including the part advising Wells that, after submitting to the state’s test, he was entitled to additional tests at his own expense from qualified personnel of his own choosing. Under OCGA § 40-5-67.1 (b) (3), if an officer reads such implied consent warning to a person, “such person shall be deemed to have been properly advised of his or her rights under this Code section.” There is no evidence in the record that Wells understood the officer’s subsequent statement to be a denial of his previously explained right to have tests performed by personnel of his choosing. Indeed, although Wells himself testified at the hearing, he did not in any way suggest that he understood Smith’s statement to foreclose that right.

In light of these facts, the ALJ was authorized to conclude that Wells was not misled by the officer’s statement, and that he was effectively advised of his implied consent rights. The ALJ, who had the benefit of seeing the witnesses testify and hearing the evidence first-hand, was in the best position to make such a factual determination. It is for precisely this reason that “[t]he superior court judge cannot substitute his judgment for that of the department as to the weight of the evidence on questions of fact.” Levitas, supra at 898 (1). As there was evidence to support the ALJ’s decision, the superior court erred in reversing such decision.

Decided March 13,1997

Reconsideration denied March 25,1997

Michael J. Bowers, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Carol A. Callaway, Senior Assistant Attorney General, Kyle A. Pearson, Assistant Attorney General, for appellant.

Lane & Crowe, Robert L. Crowe, for appellee.

Judgment reversed.

Pope, P. J., and Johnson, J., concur.

       Wells was considered to have refused the state-administered breath test because he failed to blow hard enough into the machine to generate a usable sample. Wells does not contest the ALJ’s finding that he in fact refused the test, and as there was evidence to support such finding, it must be upheld. See Howard v. Cofer, 150 Ga. App. 579, 581 (4) (258 SE2d 195) (1979).


author: McMurray, Presiding Judge.

text:
    A97A0209.
    MOSELEY v. THE STATE.
    (484 SE2d 768)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of theft by receiving stolen property, attempt to elude an officer, driving without a license and two counts of failure to obey a traffic control sign. These convictions are based upon evidence that defendant had possession of the victim’s recently stolen pickup truck and that defendant fled in the stolen vehicle, at high rates of speed, when a law enforcement officer spotted him ten minutes after the victim reported the truck stolen. Defendant testified that his fingerprints were found in the victim’s stolen vehicle because “a couple of guys [gave him] a ride [in the truck on the] morning [the vehicle was stolen].” This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends in his second enumeration of error that the trial court erred in denying his motion for directed verdict of acquittal with regard to the theft by receiving stolen property charge, arguing that evidence of his possession of the victim’s recently stolen pickup truck is insufficient to authorize a finding, beyond a reasonable doubt, that he knew or should have known the vehicle was stolen. See Heard v. State, 126 Ga. App. 62, 68 (10) (189 SE2d 895). This argument is without merit.

Defendant’s possession of the' victim’s recently stolen pickup truck is not the only evidence that defendant knew or should have known the vehicle was stolen. The State presented testimony that defendant drove off in the stolen truck when a law enforcement officer spotted him ten minutes after the vehicle was reported stolen and that defendant abandoned the truck and fled to a nearby house after eluding the pursuing officer in a high-speed chase. This evidence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of theft by receiving stolen property. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Hurston v. State, 202 Ga. App. 311 (1) (414 SE2d 303). The trial court therefore did not err in denying defendant’s motion for directed verdict of acquittal.

Decided March 25,1997.

William D. Edwards, for appellant.

H. Lamar Cole, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

2. Defendant’s first enumeration of error is not supported by citation of authority or argument in his brief and is thereby deemed abandoned pursuant to Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

Beasley and Smith, JJ, concur.


text:
    A97A0241.
    WALTON v. THE STATE.
    (484 SE2d 765)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of two counts of simple battery. These convictions are based upon proof that defendant struck and pushed his common-law wife (“the victim”) during an early morning quarrel on March 8, 1996. Although the trial was not reported, the parties agree in a transcript prepared from recollection — pursuant to OCGA § 5-6-41 (g) — that the only direct proof against defendant was the arresting officer’s testimony that the victim reported acts of violence by defendant which constitute the crimes charged. The parties also agree that two police officers gave trial testimony indicating that defendant brutally beat, bruised and bloodied the victim during a similar domestic argument on October 7, 1991. The parties stipulate that the victim’s trial testimony revealed the following regarding another prior incident of domestic strife: “On May 31, 1995[, the victim] had an argument with the defendant and she called the police. She did not remember suffering any physical injuries, [but] she did recall coming to court and testifying that she got an injury from hitting her head on a chair.”

This appeal followed entry of the judgment of defendant’s convictions and sentence. Held:

Defendant challenges the sufficiency of the evidence, arguing that the victim’s prior inconsistent statements — related by the arresting officer — regarding defendant’s acts of violence against the victim during the couple’s early morning argument on March 8,1996, are insufficient to authorize his convictions for simple battery under the standard of proof prescribed in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). We do not agree.

Decided March 25,1997.

William R. Softer, Thomas J. Killeen, for appellant.

Kenneth W. Mauldin, Solicitor, Ethelyn N. Simpson, Assistant Solicitor, for appellee.

In Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717), “the Supreme Court held that prior inconsistent statements of a witness constitute substantive evidence which the jury can credit or not as it sees fit.” (Emphasis in original.) Weeks v. State, 187 Ga. App. 307 (1), 308 (370 SE2d 344). The arresting officer’s testimony in the case sub judice regarding the victim’s on-the-scene description of acts by defendant which constitute the crimes charged, similar transaction evidence regarding defendant’s propensity for violence against the victim and proof indicating the victim’s reluctance to testify against her husband is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of two counts of simple battery as charged in the accusation. Jackson v. Virginia, 443 U. S. 307, supra; Weeks v. State, 187 Ga. App. 307 (1), 308, supra.

Judgment affirmed.

Beasley and Smith, JJ, concur.


text:
    A97A0323.
    TANNER v. THE STATE.
    (484 SE2d 766)
   McMurray, Presiding Judge.

After a bench trial, defendant was convicted of driving under the influence of alcohol to an extent that it was less safe for him to drive in violation of OCGA § 40-6-391 (a) (1). This appeal followed the denial of defendant’s motion for new trial. Held:

Defendant challenges the sufficiency of the evidence in his sole enumeration of error, arguing that the arresting officer’s opinion that defendant was less safe to drive is insufficient to authorize his conviction for violating OCGA § 40-6-391 (a) (1). This argument is without merit.

“A police officer may give opinion testimony as to the state of sobriety of a DUI suspect and whether appellant was under the influence to the extent it made him less safe to drive. Church v. State, 210 Ga. App. 670 (436 SE2d 809); Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737); Chance v. State, 193 Ga. App. 242 (387 SE2d 437); compare McFarland v. State, 210 Ga. App. 426 (436 SE2d 541). Whether a police officer qualifies as an expert for such purposes rests in the discretion of the trial court. See Smith v. State, 210 Ga. App. 451, 452 (3) (436 SE2d 562). On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, supra.” Lewis v. State, 214 Ga. App. 830, 831 (1), 832 (449 SE2d 535). Review of the trial transcript in the case sub judice reveals that the arresting officer stopped defendant’s car at a police traffic roadblock at 2:30 in the morning on July 18, 1994; that defendant’s car smelled like alcohol at the time; that defendant’s eyes were “bloodshot and slightly watery”; that defendant failed several field sobriety tests administered by the arresting officer and that defendant admitted to consuming “two beers” before driving his car. This evidence is sufficient to authorize the trial court’s finding that defendant is guilty, beyond a reasonable doubt, of driving under the influence of alcohol to an extent that it was less safe for him to drive. OCGA § 40-6-391 (a) (1); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided March 25,1997.

Brownlow & Schaefer, Ira B. Brownlow, Jr., for appellant.

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Laura E. LeDuc, Assistant Solicitors, for appellee.

Judgment affirmed.

Beasley and Smith, JJ, concur.


text:
    A97A0604.
    In the Interest of S. J. M., a child.
    (484 SE2d 764)
   Blackburn, Judge.

The mother of S. J. M. appeals the juvenile court’s termination of her parental rights. She alleges that the juvenile court improperly terminated her rights to S. J. M. because she was not personally served with a copy of the summons prior to the termination hearing. We find no error and affirm the juvenile court’s order.

On April 9,1996, a petition for termination of the mother’s rights to S. J. M. was filed in the juvenile court of Laurens County, based upon a prior finding that S. J. M. was deprived. The termination hearing was scheduled for April 30. On April 29, the mother was personally served with a copy of the summons and petition. Due to the short notice, the court continued the April 30 hearing to June 11. On May 2, a second summons and petition, including notice of the June 11 hearing date, were personally served on the mother.

Although there is no transcript of the June 11 proceedings, the record indicates that the mother appeared at this hearing and requested that counsel be appointed to represent her. In response to this request, the court appointed counsel for the mother, and continued the hearing until July 11 to give her time to consult with her attorney. On July 8, service of a third summons and petition including notice of the July 11 hearing date was attempted, but because the mother had moved, a return of no service was filed. The mother did not appear for the termination proceedings on July 11, and did not contact her attorney regarding the proceedings. Her attorney appeared, informed the court that he was unable to reach the mother, and requested a continuance. This request was denied, and the hearing proceeded. The mother’s attorney participated in the hearing on her behalf, and following the hearing, the court entered the termination order from which the mother now appeals.

Service of process in a proceeding for the termination of parental rights is governed by OCGA § 15-11-83, and to the extent that they do not conflict with that section, also by OCGA §§ 15-11-26 and 15-11-27. See OCGA § 15-11-91. Pursuant to OCGA § 15-11-83, once the petition for termination of parental rights is filed, the parent is entitled to service, in accordance with OCGA § 9-11-4, of the summons and a copy of the petition. Service must be made at least 30 days before the time set for the hearing.

In this case, the mother was twice personally served with a summons and a copy of the petition. Both the April 29 service and the May 2 service were effected well over 30 days before the June and July hearings, and the mother therefore received effective notice under the statute. The fact that she did not receive a third summons containing notice of the July 11 termination hearing 30 days before that hearing is of no consequence on the facts of this case. “Nowhere in OCGA § 15-11-83 is it required that the summons contain a fixed date [for the final termination hearing].” In the Interest of W. R. S., 213 Ga. App. 616, 618 (1) (445 SE2d 367) (1994). Inasmuch as the summons need not contain a hearing date at all, the April and May summonses were therefore sufficient, regardless of the fact that the termination hearing was not held until July 11. Additionally, once counsel was appointed for the mother pursuant to her June 11 request, it was her responsibility to maintain contact with her attorney in order to protect her rights.

Decided March 25,1997.

Carlton K. Nelson III, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Thompson, Thompson & Hilbun, Samuel A. Hilbun, for appellee.'

Furthermore, by failing to raise the issue at the termination hearing, the mother waived the issue of insufficiency of process or service of process. Her attorney appeared at the hearing on her behalf, but at no time did he raise this issue. The mother’s contentions are accordingly without merit, and the order of the juvenile court terminating the mother’s parental rights to S. J. M. is affirmed.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       The statute also requires that the summons “contain a statement to the effect that the hearing is for the purpose of terminating parental rights.” OCGA § 15-11-83 (b). The summonses which were issued in this case do not appear to contain that language, but as the mother has not enumerated this issue as error, we need not consider it.