author: Johnson, Judge. Andrews, Chief Judge,

text:
    A97A1830.
    BEARDEN v. BEARDEN.
    (499 SE2d 359)
   Johnson, Judge.

Paula Bearden was injured in an automobile accident while riding as a passenger in a car driven by her husband, David Bearden. She sued her husband, claiming her injuries were caused by his negligent operation of the car. The trial court granted summary judgment in favor of Mr. Bearden on the basis of the interspousal tort immunity doctrine. On appeal, Ms. Bearden claims the trial court erred in applying the doctrine because she alleges that the facts show she and her husband had not lived together for a long period of time and that no marital relationship existed between them. We agree that David Bearden was not entitled to be shielded by the doctrine of interspousal tort immunity as a matter of law, and reverse the trial court’s decision.

On motion for summary judgment the movant has the initial burden of showing that no genuine issue of material fact remains and that he is entitled to judgment as a matter of law. “Once the movant has made a prima facie showing that [he] is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence. [Cit.]” Ellis v. Curtis-Toledo, Inc., 204 Ga. App. 704, 705 (2) (420 SE2d 756) (1992). But that rebuttal evidence is treated with great deference, and the court is required to construe all evidence and all reasonable deductions in favor of the' respondent, and to give the respondent the benefit of every doubt and every reasonable inference. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In support of his motion for summary judgment, Mr. Bearden produced an affidavit stating that the parties married in November 1987 and separated in early 1989. He stated, however, that during the separation, he and his wife “were together frequently[;] . . . spent the night together at motels and other placest,]. . . [and that,] [o]n the day of the accident, to wit, July 11, 1995, my wife and I had been together since the previous day.” He stated they were returning from a swimming trip when the accident occurred.

In opposition to summary judgment, Ms. Bearden stated by affidavit that the parties have been separated since 1989 “because we could not get along with each other.” She stated that during the separation, Mr. Bearden has lived with other women, and she has considered herself “unofficially divorced” from him with “no plan or hope for us getting back together.” Ms. Bearden further stated in her affidavit that “[tjhere has not been any ‘harmony’ to preserve in our marriage since we separated in 1989 . . . [and that] I am not colluding or scheming with the Defendant in any way in prosecuting this claim.” Ms. Bearden’s mother gave an affidavit stating that the parties have not lived together since 1989, and that she has not “seen any interaction between them that would give [her] any hope for them getting back together in the future.” There was also evidence that on the same day Ms. Bearden commenced the present action, she also filed an action seeking a divorce from Mr. Bearden.

This case is indistinguishable from Harris v. Harris, 252 Ga. 387, 388 (2) (313 SE2d 88) (1984), where the Supreme Court of Georgia reiterated the traditional policy reasons for applying the inter-spousal tort immunity doctrine: (1) the belief that abrogation of interspousal tort immunity would foster marital disharmony and disunity and (2) the justifiable fear of collusive or friendly lawsuits between spouses. In Harris, the facts showed that the husband and wife had been separated for ten years at the time of the accident, and during that time the husband cohabited with another woman. Although there was evidence of “sporadic reconciliation attempts,” there was no evidence of a substantial ongoing relationship. Id. Thus, the Supreme Court concluded that there was no “marital harmony” to be protected by application of the interspousal immunity rule. Id. There was also no evidence of collusion or intent to defraud an insurance company. Id.

We acknowledge, as the dissent points out, that Ms. Bearden’s statement in her affidavit that she is “not colluding or scheming with the Defendant in any way in prosecuting this claim” is conclusory and should not be considered. “[C]onclusory allegations by way of an affidavit, unsupported by specific allegations of fact, will not be sufficient to avoid summary judgment.” Swanson v. Lockheed Aircraft Corp., 181 Ga. App. 876, 879 (354 SE2d 204) (1987). Nonetheless, the affidavits of Ms. Bearden and her mother state that the parties had not lived together for some six years prior to the accident and neither had any hope that the Beardens would reconcile. In addition, there is no evidence in the record of collusion or intent to defraud an insurance company. Treating that evidence with the deference required on summary judgment, it is sufficient to create a genuine issue regarding the status of the relationship.

The doctrine of interspousal immunity exists to preserve the sanctity of marriage and to prevent the possibility of collusive lawsuits. This doctrine may be abrogated where there is no marital harmony or unity to preserve and where there is no possibility of collusion. Harris, 252 Ga. at 389 (2). Here, although Mr. and Ms. Bearden did occasionally spend the night together, such evidence without more, does not resolve the factual issue of whether there was a state of marital unity to be preserved. In light of Ms. Bearden’s uncontroverted testimony that they had not lived together as husband and wife for more than six years, could not get along with each other, and had no hope or plan for reconciliation at the time of the accident, Mr. Bearden was not entitled to summary judgment as a matter of law. Our law does not presume that where there is some evidence of friendship, civility, or intimacy in a relationship, there exists as a matter of law, a de facto state of marital harmony, notwithstanding all evidence to the contrary. See id.

While the dissent repeatedly characterizes the relationship between the parties as substantial and ongoing, the affidavit testimony must speak for itself. On summary judgment it is inappropriate for this Court to weigh evidence or determine its credibility. Where the facts, as testified to by the parties, create a conflict in the evidence as to a material issue, summary judgment is precluded. HOH Co. v. Ethridge, 168 Ga. App. 20, 22 (2) (308 SE2d 43) (1983). Accordingly, the trial court’s grant of summary judgment to Mr. Bearden on the basis of interspousal tort immunity is reversed.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Beasley, Blackburn, Smith, Ruffin, Eldridge, JJ, and Senior Appellate Judge Harold R. Banke concur. Andrews, C. J., dissents.

Andrews, Chief Judge,

dissenting.

Under the interspousal tort immunity doctrine (codified at OCGA § 19-3-8), actions between spouses for personal torts committed by one spouse against the other are barred “except where the traditional policy reasons for applying [the doctrine] are absent, i.e., where there is no marital harmony to be preserved and where there exists no possibility of collusion between the spouses.” (Citation and punctuation omitted.) Shoemake v. Shoemake, 200 Ga. App. 182, 183 (407 SE2d 134) (1991). Deviation from strict application of the spousal immunity doctrine is sanctioned “only in extreme factual situations . . . clearly evidencing] the termination of marital harmony to a degree sufficient to deter any reasonable apprehension of collusion between the spouses or their estates.” (Citation and punctuation omitted.) Stanfield v. Stanfield, 187 Ga. App. 722, 723 (371 SE2d 265) (1988).

This case does not involve an extreme factual situation which would allow deviation from the strict application of the doctrine of interspousal immunity. The record contains unrefuted evidence set forth in Mr. Bearden’s affidavit that, despite living apart for over six years, the parties maintained a substantial ongoing marital relationship by seeing each other frequently and spending the night together. Although the affidavits given by Ms. Bearden and her mother show that the parties had been separated for approximately six years and 'that they had no current plans to live together again on a full time basis, the affidavits do not refute the evidence given by Mr. Bearden establishing the parties’ ongoing marital relationship. In fact, the record shows that when the accident occurred the Beardens were returning from a trip they took together which began the previous day. As the affidavits of both parties indicate, it may not have been a good marriage, but “for purposes of applying the interspousal immunity doctrine, there is a significant difference between ... a bad marriage and ... a non-existent marriage.” Stanfield, supra at 723-724 (Pope, J., concurring specially). Ms. Bearden’s conclusory statements in her affidavit that there was no marital harmony to preserve and that her suit was not collusive were not sufficient to establish that the doctrine does not apply. “[C]onclusory allegations by way of an affidavit, unsupported by specific allegations of fact, will not be sufficient to avoid summary judgment.” Swanson v. Lockheed Aircraft Corp., 181 Ga. App. 876, 879 (354 SE2d 204) (1987). Neither does the fact that Ms. Bearden commenced a divorce action when she filed the present action require a different result. See Stanfield, supra at 722.

The above facts distinguish this case from Harris v. Harris, 252 Ga. 387 (313 SE2d 88) (1984), where the Supreme Court concluded on the facts before it that the traditional policy reasons for applying the interspousal tort immunity doctrine were absent, and therefore the doctrine did not apply. Id. at 388. The husband and wife in Harris had been separated for ten years at the time of the accident, and the husband had been cohabiting with another woman. There was evidence of “sporadic reconciliation attempts,” between the husband and wife, but there was no evidence that the married but separated couple in Harris had maintained a substantial ongoing marital relationship like the Beardens by seeing each other on a frequent basis and spending the night together. Id. at 388. Unlike the facts in Harris, the present facts do not support the conclusion that there was no marital harmony to be protected and thus no justifiable fear of a collusive or friendly lawsuit. Yates v. Lowe, 179 Ga. App. 888, 889 (348 SE2d 113) (1986).

Harris clearly states that the bar of the interspousal tort immunity doctrine may be avoided only in cases where “realistically speaking, [there is] no ‘marital harmony’ to be protected. . . .” Id. at 388. The majority does not conclude that there was no marital harmony between the Beardens to be protected. In fact, the majority concedes that there is evidence in the present record to support the conclusion that there was marital harmony to be protected, but it finds that the trial court erred in applying the doctrine as a bar to the suit because “such evidence, without more, does not resolve the factual issue of whether there was a state of marital unity to be preserved.” This reasoning misconstrues the manner in which the doctrine is applied. Harris, for example, did not rule that whether the doctrine of inter-spousal tort immunity should apply was a question of fact for a jury in that case. In Harris, the Supreme Court determined as a matter of law on the undisputed facts of the case that “the reasons for the immunity rule simply do not exist here, and that the doctrine of interspousal tort immunity does not apply to bar [the plaintiff’s] damages claim.” Id. at 388.

Decided March 13, 1998

Rodney L. Mathis, for appellánt.

Setting aside Ms. Bearden’s conclusory statements, the relevant facts in the present case regarding the status of the parties’ marital relationship are also undisputed. Whether the undisputed facts supported Mr. Bearden’s claim to statutory interspousal tort immunity was a question of law for the trial court subject to de novo review by this Court. See Harris, supra; Keenan v. Plouffe, 267 Ga. 791, 793, n. 1 (482 SE2d 253) (1997) (where the relevant facts were not in dispute, whether official immunity was applicable was a question of law for the court); compare Trotter v. Ashbaugh, 156 Ga. App. 130, 133 (274 SE2d 127) (1980) (controverted facts remained for jury resolution before court could determine whether interspousal tort immunity barred the action).

Because undisputed evidence showed that, at the time of the accident, the married parties, though separated for a lengthy period of time, continued to see each other frequently and spend the night together, this was not a case in which there was clearly no marital harmony to preserve and no reasonable apprehension of collusion between the spouses. Shoemake, supra at 183. On these facts, the trial court correctly concluded as a matter of law that the doctrine of interspousal tort immunity barred the suit.

McCamy, Phillips, Tuggle & Fordham, James H. Phillips, for appellee.

       To the extent Smith v. Rowell, 176 Ga. App. 100 (335 SE2d 461) (1985) may be read to state that a jury should decide whether the undisputed facts establish the existence of the necessary public policy reasons for application of the doctrine of interspousal tort immunity, it should be overruled.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A97A1849.
    JACKSON v. THE STATE.
    (498 SE2d 780)
   McMurray, Presiding Judge.

Defendant Jackson appeals his convictions of aggravated assault and of two offenses of shoplifting. Citing the provisions of OCGA § 17-7-170, defendant moved for discharge and acquittal prior to trial, based on the State’s failure to try him in accordance with a demand for speedy trial which he had filed pro se on November 28, 1995. Defendant also filed a motion to dismiss the indictments based on allegations of deprivation of due process and speedy trial rights under federal and state constitutions, albeit defendant makes no independent state constitutional argument. The denials of these motions provide the foundation of defendant’s enumerations of error. Held:

1. The three indictments against defendant were filed in open court on April 20,1995. Demands for speedy trial, pursuant to OCGA § 17-7-170, as to each indictment were filed pro se by defendant on July 31, 1995. The State moved to dismiss these demands, arguing that they were improper since defendant was represented by counsel. Goodwin v. State, 202 Ga. App. 655 (415 SE2d 472). However, defendant had not been pleased with his court-appointed attorney and had filed a grievance against him with the State Bar of Georgia even prior to the filing of the indictments. On November 13,1995, the court-appointed attorney filed a request for permission to withdraw from representation of defendant and at a hearing the following day that permission was granted. At the hearing on November 14, 1995, defendant was confronted with the choice of going to trial immediately pursuant to his demand for speedy trial, albeit without counsel, or requesting that the cases against him be continued.

In presenting defendant with this choice, the superior court informed defendant that if he requested that the cases be continued “that breaks — that stops the clock on the speedy trial demand. That means that the speedy trial demand would have to be refiled to start the clock ticking again.” Defendant chose to request that the cases be continued and thus waived his pending demands for speedy trial.

OCGA § 17-7-170 (a) provides in part that “[a]ny person against whom a true bill of indictment ... is filed with the clerk for an offense not affecting his life may enter a demand for trial at the court term at which the indictment ... is filed or at the next succeeding regular court term thereafter; or, by special permission of the court, he may at any subsequent court term thereafter demand a trial.” Thus, at the term at which the indictment is found or at the next succeeding regular court term an accused may of right make a demand for trial under OCGA § 17-7-170, but after that time a demand can only be made by special permission of the trial court and the statute provides no exceptions to this directive. Hubbard v. State, 176 Ga. App. 622, 623 (2), 624-625 (337 SE2d 60).

Defendant’s pro se demand for speedy trial, filed November 28, 1995, was subject to the requirement of special permission since it was not filed at the term in which the indictment was filed nor within the next succeeding regular court term. The denial of defendant’s motion for discharge and acquittal was predicated on defendant’s failure to obtain such special permission for the filing of his demand. Defendant enumerates as error the denial of his motion for discharge and acquittal, and argues in support thereof that the superior court’s colloquy with defendant at the November 14, 1995 hearing contained the requisite permission. Defendant does not dispute that special permission is required to file an out of time demand, but would have us define what constitutes “permission” too broadly. The meaning of such a familiar term is well known and must be applied here. Suggestion that a different or more lenient construction should be applied due to defendant’s pro se status misses the mark. The trial court’s remarks to defendant were accurate and proper, emphasizing the consequences of requesting that the case be continued, but simply did not reach any issue as to the proper procedure for filing a further demand for speedy trial. The trial court told defendant that a speedy trial demand would have to be refiled to start the clock ticking again but provision of this information cannot be reasonably viewed as an expression of consent addressed to the statutory requirement. There was no reference to the statutory requirement of special permission by either defendant or by the trial court. The statements of the trial court were expressly made in contemplation of the appointment of a new attorney for defendant and as an act to be done by and with the advice of counsel, who would presumably be aware of the statutory requirements. We find no error in the denial of defendant’s motion for discharge and acquittal.

2. Nor did the trial court err in denying defendant’s motion to dismiss for violation of the right to a speedy trial. Defendant’s claim that his federal and state constitutional right to a speedy trial was violated must be examined under the four-part test of Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101), which considers (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right, and (4) the prejudice to the defendant. The fourth factor requires consideration of three interests: (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the defendant, and (iii) limiting the possibility that the defense will be impaired. Johnson v. State, 268 Ga. 416, 417 (2) (490 SE2d 91); Brown v. State, 264 Ga. 803, 804 (2) (450 SE2d 821).

The length of the delay from arrest to trial in the case sub judice was more than 22 months. Since a delay of 21 months has been held to raise a threshold presumption of prejudice, the delay in the case sub judice must be viewed as raising the threshold presumption requiring analysis of the remaining three factors to determine if defendant’s right to a speedy trial was denied. Johnson v. State, 268 Ga. 416, 417 (2), supra.

There were a number of reasons shown for the delay. Defendant concedes that the absence of the State’s primary witness from the jurisdiction of the trial court for a period of approximately seven months in 1996 is a valid reason for delay. See Treadwell v. State, 233 Ga. 468, 469 (211 SE2d 760). Further delay resulted from defendant’s refusal to cooperate with counsel and from a continuance granted at defendant’s request at the time that prior appointed counsel was relieved in November 1995. However, the significance of defendant’s request for continuance is slight since the State had moved to quash defendant’s original pro se demand for speedy trial and in view of the fact that defendant had requested a change in appointed counsel as early as March 1995.

Defendant failed to assert that his constitutional right to speedy trial was denied until he filed his motion to dismiss on the date his trial commenced. Attempts by defendant, acting pro se, to assert his statutory rights pursuant to OCGA § 17-7-170 were procedurally deficient. This factor must weigh against defendant. Johnson v. State, 268 Ga. 416, 417 (2), supra.

As to the matter of prejudice under the fourth factor, the 22-month period of delay being insufficient to raise an inference of actual prejudice, defendant must show actual anxiety and concern and specific evidence of how the delay impaired his ability to defend himself. Johnson v. State, 268 Ga. 416, 418 (2), supra. Defendant made no showing of great anxiety or concern, and any which defendant experienced would apparently be attributable to the prison term he was serving following revocation of his probated sentence from prior felonies. An attempt was made to establish that defendant had been handicapped because the memory of alibi witnesses had faded. However, the trial court was authorized to accept evidence showing that any faded memories were attributable to the purported alibi witnesses’ use of illegal drugs rather than to the passage of time. Defendant’s failure to cooperate with counsel and provide the names of the purported alibi witnesses until a week before trial was a greater source of prejudice to his defense. This factor must be weighed against defendant.

Decided March 13, 1998

Putnam C. Smith, for appellant.

Alan A. Cook, District Attorney, Jeffrey L. Foster, Assistant District Attorney, for appellee.

Balancing all four factors under the Barker test, we conclude that the 22-month delay in the case did not violate defendant’s constitutional right to a speedy trial. The denial of defendant’s motion to dismiss was not error. Johnson v. State, 268 Ga. 416, 418 (2), supra; Daughenbaugh v. State, 225 Ga. App. 7 (482 SE2d 517); Collingsworth v. State, 224 Ga. App. 363, 365 (1) (480 SE2d 370); Chambers v. State, 213 Ga. App. 414, 415 (1) (444 SE2d 820).

Judgment affirmed.

Beasley and Smith, JJ., concur.


author: Smith, Judge. Beasley, Judge,

text:
    A97A2083.
    PUTNAM v. THE STATE.
    (498 SE2d 340)
   Smith, Judge.

Jon Miley Putnam was indicted by a Richmond County grand jury on one count of aggravated child molestation, OCGA § 16-6-4 (c), and one count of child molestation, OCGA § 16-6-4 (a). He was convicted by a jury, his motion for new trial was denied, and he appeals. At Putnam’s trial, a social worker testified to the ultimate issue in the case and stated that in her opinion the victim was telling the truth. The social worker read for the jury her own letters that “confirmed” Putnam was “the perpetrator” and that placed his name on the State Child Protective Services Index. This testimony and the letters, which went out with the jury, constitute such plain, obvious, and harmful error under the circumstances that we must reverse, even in the absence of a contemporaneous objection by Putnam’s counsel.

1. Putnam’s contention that the evidence is insufficient to sustain his conviction is without merit. The victim’s testimony alone was sufficient to sustain the convictions. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hardy v. State, 210 Ga. App. 811, 813 (4) (437 SE2d 790) (1993).

2. At trial, the State called a “social service specialist” who was employed by the Richmond County Department of Family & Children Services and who conducted the investigation of Putnam. Putnam complains of four specific statements in her testimony as error. First, the social worker testified, “We are not allowed to put a person’s name on our Child Protective Services Information System, unless we have interviewed or talked to them in some manner. So what we did at that point was confirm the sexual abuse, which means we believe it happened, and closed the case, because the perpetrator was not in the home.” Second, the State introduced into evidence and the social worker read to the jury her own letter to Putnam on DFACS letterhead that in part stated: “Although the investigation did find evidence that abuse and/or neglect occurred, there were no findings of any abuse ... on your part.” The prosecutor then asked, “But this letter does confirm that there was abuse going on?” To this, the social worker responded, ‘Yes, it does.” Third, the State introduced into evidence and the social worker read to the jury an “outcome letter” on DFACS letterhead, stating that the department found that child abuse “did occur” and “was confirmed” and informing Putnam that his name would be placed on the State Child Protective Services Information System, a list of child abusers. Finally, when asked if she felt she was an impartial investigator, the social worker responded, “I happen to believe what [the victim] told me, though.” For several reasons, all these statements by the social worker were improper.

First, the courts of this state have held repeatedly and unequivocally that a witness may not express his or her opinion as to whether a child has been molested. See, e.g., Harris v. State, 261 Ga. 386 (405 SE2d 482) (1991); Sims v. State, 260 Ga. 782, 784 (399 SE2d 924) (1991) ; Allison v. State, 256 Ga. 851, 853 (5), (6) (353 SE2d 805) (1987); Hilliard v. State, 226 Ga. App. 478, 479-481 (1) (487 SE2d 81) (1997); Remine v. State, 203 Ga. App. 30, 31 (2) (416 SE2d 326) (1992) .

The general rule is well expressed in Allison, supra: “[A]n expert may not testify as to his opinion as to the existence vel non of a fact (in this case, whether the child had been abused sexually) unless the inference to be drawn from facts in evidence is beyond the ken of the jurors — that is, unless the jurors, for want of specialized knowledge, skill, or experience, are incapable of drawing — from facts in evidence — such an inference for themselves. [Cit.]” Allison, supra at 853 (5). The inference to be drawn from the evidence — that the child was the victim of sexual abuse — was not beyond the ken of the jurors. The jurors did not lack the requisite skill, knowledge, or experience to determine based on the victim’s testimony and other evidence introduced at trial whether she was molested.

Indeed, “[w]here (a) the path from evidence to conclusion is not shrouded in the mystery of professional skill or knowledge, and (b) the conclusion determines the ultimate issue of fact in a case, the jury must make the journey from evidence to conclusion without the aid of expert testimony.” (Citations and punctuation omitted.) Remine, supra at 30-31 (2). While an expert may testify, for example, that the alleged victim in a child molestation case exhibits recognized behavior consistent with that of a sexually abused child (“child abuse accommodation syndrome”), the expert may not present his or her opinion that the child in fact has been abused. Id. at 31. Observations of a victim’s demeanor and the opinion of a qualified expert that the demeanor was “indicative of great trauma” would be permissible as part of an expert’s analysis of observed facts in the light of professional training, but testimony that “I firmly believe that [the victim] was molested” is nevertheless inadmissible because it does not go to “scientific or psychological matters the jury would need expert assistance to understand.” Hilliard, supra at 478, 481. Although a physician may testify to the results of a physical examination, the conclusion that the victim was sexually molested is inadmissible. Harris, supra at 387.

Here, the social worker did not offer evidence that was even remotely based upon professional knowledge or skill. Nor did she testify to any professional observations that formed the basis for her conclusions. She simply expressed her unsupported opinion and the opinion of DFACS that the alleged victim was in fact abused and that Putnam was the “perpetrator.” This conclusion was a matter strictly within the province of the jury and the admission of her testimony was error.

Second, it is well established that “[i]n no circumstance may a witness’ts] credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth.” (Punctuation omitted.) Roberson v. State, 214 Ga. App. 208, 210 (4) (447 SE2d 640) (1994). The credibility of a witness is a matter exclusively for determination by the jury. OCGA § 24-9-80. Testimony that another witness believes the victim impermissibly bolsters the credibility of the victim. Lagaña v. State, 219 Ga. App. 220, 221 (464 SE2d 625) (1995). Here, not only did the social worker state an impermissible conclusion that the victim was abused by Putnam, she testified that she believed the victim — the State’s key witness. This testimony was not supported by expert opinion or her personal observation. Instead, it was wholly conclusory, gave an impermissible and unsupported opinion that another witness was credible, and should not have been allowed. Cline v. State, 224 Ga. App. 235, 237 (2) (480 SE2d 269) (1997).

The error here was compounded because the social worker repeatedly characterized her opinion as the official opinion of DFACS or others at that agency, speaking through her. She gave the majority of her testimony in the “editorial ‘we.’ ” She stated, for example, that “we believe it happened,” “we cannot say he did anything without talking to him,” and “we send them a letter” (placing them on a list of child abusers). Moreover, the State introduced into evidence the social worker’s own letters on DFACS stationery. The social worker then read those letters to the jury, stating as the official conclusion of DFACS that child abuse “was confirmed” and “did happen,” that Putnam was the “perpetrator,” and that he had been placed on an official list of child abusers. This, in effect, bolstered her own testimony by giving her unsupported conclusions the imprimatur of approval from a state agency. This was improper. In Harris v. State, 168 Ga. App. 458 (309 SE2d 431) (1983), this Court found it error to allow a polygraph examiner’s “official report” to be sent out with the jury. We held that “[t]he report that was submitted to the jury was nothing but a written reiteration, on a document bearing the imprimatur of officiality, of the polygraph examiner’s opinion that in his belief, appellant was lying. It was not direct evidence, but merely opinion. . . . The examiner had already fully given his opinion from the stand, and the Official Report could do nothing for the jury except add weight to that opinion in the jury room which the defendant was helpless to dislodge. [Cit.] It was improper surplusage and calculated to influence the jury. [Cit.]” Id. at 460-461 (5).

3. Having determined that the testimony complained of was error, we must decide whether its admission amounts to harmful error despite the failure of Putnam’s attorney to object at trial. “In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” (Citations and punctuation omitted.) Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986) (on motion for reconsideration). In Mindock v. State, 187 Ga. App. 508 (370 SE2d 670) (1988), appellant made an ambiguous and nonspecific objection at trial to an absent fellow-offender’s confession. This Court, citing Almond, held that the evidence was “so prejudicial and so repugnant to the idea of a fair trial that to admit such evidence would be error even in the absence of an objection. [Cit.]” Id. at 509. See also Drug Emporium v. Peaks, 227 Ga. App. 121, 125 (488 SE2d 500) (1997) (rule applied in civil case to erroneous charge of superseded statute); Boatwright v. State, 193 Ga. App. 141, 142-143 (2) (387 SE2d 386) (1989) (appellant failed to object to evidence of guilty plea; codefendant objected and won reversal); Kearney v. State, 184 Ga. App. 64 (360 SE2d 633) (1987) {Almond rule applied on appeal although appellant did not assert general grounds when State failed to prove essential element of case).

Here, the circumstances mandate the conclusion that this testimony was harmful and reversible error, even in the absence of an objection. As discussed in Division 2, above, the error in this case was obvious and violated well-established rules forbidding testimony that goes to the ultimate issue or that bolsters the credibility of another witness. The evidence in the case was not overwhelming, consisting as it did primarily of the victim’s accusations, as testified to by the victim or communicated to other witnesses, and Putnam’s denials. The child was never examined by a physician, and no medical or psychological testimony was presented by the State.

Finally, we find troubling the combination of circumstances surrounding these allegations. No report was made until at least six months after the incidents allegedly occurred and several months after the victim allegedly told her mother. The allegations were raised by the victim’s mother in the context of an acrimonious divorce and after the mother took her children to a religious family conference at which they were exhorted about “telling the truth” to their parents. These circumstances are indeed exceptional, and to ignore the obvious underlying error would “seriously affect the fairness, integrity or public reputation of judicial proceedings.” Almond, supra.

Judgment reversed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the judgment but not in all that is written. I find it necessary to explain. .

First, we are in effect shortcutting the normal process by using the “plain error” rule which the United States Supreme Court created in United States v. Atkinson, 297 U. S. 157, 160 (56 SC 391, 80 LE 555) (1936), to address certain types of issues in exceptional circumstances, despite the absence of exception being taken in the trial court.

I do not find the application of this rule in any prior Georgia case where inadmissible opinion is given by a witness on an ultimate issue to be decided by the factfinder. Thus, this case would set a new precedent but for the fact that the opinion is non-precedential. Court of Appeals Rule 33 (a). Were it to become precedent, it would apply to other such cases, at least where the witness’ opinion is that the act of victimization did occur and that the witness believed the victim’s description of it and identification of the perpetrator, as in this case.

Putnam did not object to admission of the evidence which this Court deems rendered the trial fundamentally unfair. We are reaching the issue despite the lack of request for the trial court to rule. Normally, the affected party would by silence waive the objection and the appellate court would not address it, for the reasons given by the Supreme Court in Atkinson, supra. The well-settled rule of procedure was repeated and applied in, for example, Kitchens v. State, 198 Ga. App. 284, 286 (5) (401 SE2d 552) (1991): “An enumeration of error complaining of admission of evidence or of documents going out with the jury presents nothing for decision by this court where no objection was made at the trial.” (Citations and punctuation omitted.) The question was not even raised in the motion for new trial, which was argued by appellate counsel without amendment to the motion filed by trial counsel on the general grounds alone. Compare Stidem v. State, 246 Ga. 637, 639 (3) (272 SE2d 338) (1980): even where a concededly reversible error is made (allowing defendant’s written statement to the police and a transcript of his preliminary hearing testimony to go out with the jury), the judgment was affirmed because no timely objection was made.

Thus, in this instance, we take the position in effect that if we do not address the issue on this direct appeal, there likely would be a habeas corpus brought on the ground of ineffective assistance of counsel. Failure to object would, given the ruling on the substantive issue here, constitute deficient performance so prejudicial to the defense that a reasonable probability exists that the trial result otherwise would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Deciding the question on this direct appeal avoids that process and the resultant delay of a new trial.

Although I agree that the repeated instances of inadmissible opinion evidence which invaded the province of the jury resulted in an unfair trial, I do not find the law as clear-cut as the majority presents it. In State v. Butler, 256 Ga. 448 (349 SE2d 684) (1986), a four-to-three decision, the Supreme Court held that it was not error to allow the witness to testify that in her opinion the child had been molested, “which was an ultimate issue to be decided by the jury.” The court’s rationale was two-fold: 1) that the witness had laid a foundation of professional expertise and fact-gathering upon which to base the opinion; 2) the opinion was a factual conclusion “ ‘which jurors would not ordinarily be able to draw for themselves.’ ” Id. at 450. The majority’s view was that the opinion was not merely an opinion as to the child’s credibility but rather was a medical opinion.

A few months later the Supreme Court decided Allison v. State, 256 Ga. 851 (353 SE2d 805) (1987). In it the court discussed the difference between an ultimate issue and an ultimate fact and restated the rule that “an expert may not testify as to his opinion as to the existence vel non of a fact (in this [Allison] case whether the child had been abused sexually) unless the inference to be drawn from facts in evidence is beyond the ken of the jurors — that is, unless the jurors, for want of specialized knowledge, skill, or experience, are incapable of drawing — from facts in evidence — such an inference for themselves.” Id. at 853 (5).

The Supreme Court applied the rule in Smith v. State, 259 Ga. 135,138 (2) (377 SE2d 158) (1989), a child rape and molestation case, and held that it was reversible error to allow the witness, who had been qualified as a child-abuse expert, to testify over objection that in her opinion, the victim told the truth about the matter, is telling the truth, and will not go back on it. The basis for the ruling was that the credibility of the victim was not beyond the ken of the jurors. One justice made a distinction between this evidence, which he agreed was inadmissible because it related to the truthfulness of this particular victim, and expert opinion regarding “the general propensity for victims of child abuse to be truthful about the abuse.” Id. at 138-139.

In 1990 this Court reversed a conviction of child molestation in Coxwell v. State, 195 Ga. App. 751, 752 (3) (395 SE2d 38) (1990), because the trial court allowed a DFACS social worker who had related her experience and training with respect to child abuse to state her opinion on “the ultimate issue of whether the child had been sexually molested.” This Court pointed out, not for the first time, that there is conflicting authority as to whether such expert testimony is admissible, cited several cases, and applied what it understood as the current law.

The next year all the justices concurred in Sims v. State, 260 Ga. 782, 784 (4) (399 SE2d 924) (1991), which held that it was reversible error to allow a DFACS caseworker to express her opinion that the child had been molested. The reason was that the opinion was not based on expertise in the field of child sexual abuse, so as to be outside the jury’s ken. Thus it was inadmissible because it lacked a proper foundation for expert opinion and constituted nothing more than the witness’ opinion about an ultimate fact which the jury could itself decide without her opinion.]

Our decision in Harris v. State, 198 Ga. App. 503 (402 SE2d 62) (1991), was reversed by the Supreme Court in Harris v. State, 261 Ga. 386 (405 SE2d 482) (1991). We understood the holding in Allison, supra, to allow the physician to state his expert opinion, based on the foundation of his physical examination of the victim, that the child had been sexually molested. This Court reasoned that the jury was not capable of deciding this issue itself. The Supreme Court held, in effect and without explanation, that this Court misinterpreted Allison. Three justices dissented, pointing out what they regarded as a fine line, “a semantical distinction” which the Court was making, between what was admissible and what was not. The author of the Court of Appeals decision is now a justice on the Supreme Court.

We soon had call to address the issue again. In Remine v. State, 203 Ga. App. 30 (2) (416 SE2d 326) (1992), the Court applied Allison without citing Harris and held that the qualified expert was not permitted to testify, over objection, that “in his opinion the victim had suffered ‘extensive pain and emotional abuse.’ ” The reason given was that the jury did not need it, as it had extensive evidence from which it could draw its own conclusion regarding this fact. The Court distinguished, without explanation, instances where the expert offers his opinion that the victim has exhibited behavioral characteristics con- . sistent with those of a sexually abused child.

Decided March 13, 1998

Peter D. Johnson, for appellant.

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

These cases demonstrate that the law on the subject is still evolving. In sum, it appears that an expert’s opinion with respect to whether the child in fact suffered the act which defendant is charged with committing, i.e., an ultimate fact, is inadmissible where 1) a proper foundation is not laid for reaching the opinion, that is, an adequate base of expertise in the field and knowledge of this particular victim is absent, and 2) the fact is determinable by the jury without the opinion of the expert, that is, the evidence is sufficient for the jury to reach its own conclusion directly. When that evidence is the same as that upon which the expert bases his or her opinion, and is not the type of evidence that needs expert deciphering in order for its meaning to be understood, then the expert’s opinion is inadmissible for fear that that jury will substitute it for its own.

2. I do not join in the majority’s challenge to the credibility of witnesses. It is a matter for the factfinder, and we have ruled that the evidence of guilt was sufficient.

       We note that after this conference the victim’s brother also confessed to his mother that he was sexually involved with the victim. Putnam contended that the siblings made false accusations against him to divert attention from their illicit relationship.


author:
Ruffin, Judge.
      Birdsong, Presiding Judge, Eldridge, Judge,

text:
    A97A2252.
    DENHAM v. YOUNG MEN’S CHRISTIAN ASSOCIATION & YOUTH CENTER OF THOMASVILLE, INC.
    (499 SE2d 94)
   Ruffin, Judge.

Jacqueline L. Denham sued the Young Men’s Christian Association & Youth Center of Thomasville, Inc. (“the YMCA”) for damages that she incurred when she slipped and fell on the YMCA’s premises. Denham appeals the trial court’s grant of summary judgment. We affirm.

The Supreme Court of Georgia has held that “ ‘routine issues’ of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable and undisputed.” Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 SE2d 403) (1997). “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in the light most favorable to Denham, the evidence shows that on May 17, 1993, Denham visited the YMCA to use the jacuzzi. Although this was her first time using the YMCA’s jacuzzi, Denham had previously used another jacuzzi. Upon entering the jacuzzi, she saw the swirling water, but she could not see the outline of the unmarked steps because they were not marked. After stepping into the jacuzzi, Denham “felt along with [her] foot trying to find [the step].” Even though the YMCA had a handrail available for patrons to use, Denham does not recall using the jacuzzi’s handrail. Upon entering, Denham fell forward, hitting her chin on the other side of the jacuzzi. Denham attributed her fall to the unmarked steps.

On appeal, Denham contends the trial court erred by granting summary judgment in favor of the YMCA because an issue of fact exists concerning whether the YMCA’s failure to mark the outline of the jacuzzi steps created a defective condition. In support of this argument, Denham cites her deposition testimony where she stated that when she entered the jacuzzi, she was “groping” her way down the steps, despite the swirling water and unmarked steps, that there were no warning signs posted, and that the YMCA did not act in response to another patron’s prior warning of the danger posed by the unmarked steps. However, this testimony also shows that Denham was aware of the condition of the jacuzzi steps prior to using them but decided to enter the jacuzzi by use of the steps. The trial court properly rejected Denham’s argument against summary judgment.

“ ‘For [Denham] to recover under a common law negligence theory, there must have been a defective condition on [the YMCA’s] premises, which defect was the cause of [Denham’s] fall and of which [the YMCA] had superior knowledge. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. Thus, the basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard, there is no duty on the part of the proprietor to warn the invitee and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.’ ” (Citations and punctuation omitted.) Young v. YMCA of Metropolitan Atlanta, 204 Ga. App. 224, 225 (419 SE2d 97) (1992). Construing the evidence in favor of Denham, it is clear from the record that Denham’s knowledge of the alleged defective condition was equal to that of the YMCA.

Denham also contends that the YMCA failed to post warning signs to proceed with caution or to encourage use of the handrail and that the YMCA failed to heed the warning of another patron that the unmarked steps posed a danger. Review of the record shows that no signs appeared in or around the jacuzzi at issue. However, in this instance, whether warning signs should have been posted or not is irrelevant to determining whether a genuine issue of material fact exists because this Court has held that “[t]here should be no duty to warn of the perfectly obvious such as posting a sign on a stairwell that ‘These are steps. . . .’ [Cit.]” Gyles, Inc. v. Turner, 184 Ga. App. 376, 377 (361 SE2d 538) (1987) (physical precedent only). Consequently, the YMCA’s failure to post signs is not a basis for finding a genuine issue of material fact.

Moreover, the standard for review of a “slip and fall” case is “whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.” Robinson v. Kroger Co., 268 Ga. at 748 (2) (b), supra. Pretermitting whether the unmarked steps resulted in a defective condition, the evidence clearly shows that Denham knew that she was unable to see the unmarked steps through the swirling water, but intentionally descended into the jacuzzi using the unmarked steps. Considering the totality of the circumstances, the condition of the unmarked steps being known to Denham prior to her fall, the YMCA cannot be held liable for Denham’s injury. See generally id. Accordingly, the trial court properly granted summary judgment to the YMCA.

Judgment affirmed.

Birdsong, P. J, and Eldridge, J., concur specially.

Birdsong, Presiding Judge,

concurring specially.

Although I concur fully with all that is said in the majority opinion, I write separately to express my disagreement with the view stated in Judge Eldridge’s special concurrence that Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) is no longer applicable to summary judgment in slip and fall cases because of our Supreme Court’s recent Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403), decision. Even the most cursory reading of the Robinson opinion plainly shows that the special concurrence is contrary to that decision, and, moreover, these views are contrary to the recent seven member whole court decision in Sharfuddin v. Drug Emporium, 230 Ga. App. 679 (498 SE2d 749). As much as anyone may disagree with the Sharfuddin decision or wish that Robinson had gone further than it did, these opinions are nevertheless binding precedent and must be followed until they are modified, overruled, or reversed. Under our system of precedent, we are not free to act as if the Sharfuddin decision does not exist.

The special concurrence’s quotation from Robinson quoting Hilsman v. Kroger Co., 187 Ga. App. 570 (370 SE2d 755) is misleading: Robinson quoted Hilsman to show what the law was prior to Lau’s Corp., and not what the law would be after Robinson. See Robinson, supra at 747.

Additionally, except for cases under the second prong of the elements of a foreign substance slip and fall case under Alterman Foods v. Ligón, 246 Ga. 620, 623-624 (272 SE2d 327) (see Sharfuddin, supra at 680) nothing in Robinson states that a defendant-movant can no longer discharge its burden by pointing out the absence of evidence to support the non-moving party’s case. If our Supreme Court had intended such a result, that court certainly could easily have done so by stating merely what the special concurrence alleges that it did. Instead, the Supreme Court crafted an opinion that elected to modify the application of Lau’s Corp. as it concerned the second prong of a slip and fall case under Alterman Foods and nothing more.

Therefore, I cannot agree with the views stated in Judge Eldridge’s special concurrence.

Eldridge, Judge,

concurring specially.

I concur in the majority’s opinion that the trial court properly granted summary judgment to the YMCA. I write separately to clarify the burden of proof necessary for a defendant to prevail at summary judgment in a slip-and-fall case.

1. The burden of proof set forth in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), and cited in the majority’s opinion is no longer applicable to summary judgment in a slip-and-fall case since the Supreme Court’s decision in Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997). Under Robinson the evidentiary burdens were re-established “to where they were at the time Alterman Foods was decided,” some 11 years prior to Lau’s Corp. Robinson v. Kroger Co., supra at 748.

“[0]n motion for summary judgment, regardless of which party would have the burden of proof at trial, if a material fact has been alleged in the complaint, can be reasonably drawn from the pleadings, or has been raised by the evidence placed in the record by any party, the defendant-movant has the burden of proving the nonexistence of that fact and it is not until the movant carries its own burden that the burden then shifts to the plaintiff-respondent.” (Citations and punctuation omitted.) Robinson v. Kroger Co., supra at 747 (quotingHilsman v. Kroger Co., 187 Ga. App. 570, 572 (370 SE2d 755) (1988)). A defendant-movant can no longer discharge its burden by “pointing out by reference to the . . . record that there is an absence of evidence to support the non-moving party’s case.” Lau’s Corp. v. Haskins, supra at 491.

As stated in Robinson, “[a] slip-and-fall plaintiff need not necessarily produce evidence which disproves the plaintiff’s negligence to withstand a motion for summary judgment — the burden of coming forward with such evidence arises only after it has been established or assumed the defendant had actual or constructive knowledge of the hazard, and the defendant presents evidence that the plaintiff’s injuries were proximately caused either by the plaintiff’s voluntary negligence, i.e., plaintiff’s intentional and unreasonable exposure of self to a hazard of which plaintiff has knowledge, or by the plaintiff’s casual negligence, i.e., the plaintiff’s failure to exercise ordinary care for personal safety. In this way, the defendant has the evidentiary burden as to the issue of the plaintiff’s negligence after it has been established or assumed for purposes of a motion for summary judgment that the defendant was negligent, i.e., that the defendant had actual or constructive knowledge of the existence of a hazard on its premises. Only after the defendant has produced evidence of the plaintiff’s negligence does the plaintiff have the burden of producing rebuttal evidence.” (Emphasis supplied.) Robinson v. Kroger Co., supra at 747-748.

2. Denham alleged in her complaint that the YMCA had actual or constructive knowledge of the dangerous condition of its jacuzzi. On summary judgment, the YMCA established evidence that Denham “intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known[,]” i.e., that Denham intentionally descended the steps of the jacuzzi, she knew the steps were wet and slippery, she could not see the steps or their edges under the swirling water, and she was unaware of the handrail that was present.

Decided March 13, 1998.

Whitehurst, Cohen & Blackburn, Catherine M. Williams, Ronald B. Warren, for appellant.

Watson, Spence, Lowe & Chambless, Mark A. Gonnerman, Russell S. Kent, for appellee.

Denham now had the burden to come forward and present some affirmative evidence which creates a jury issue on the essential element of the YMCA’s affirmative defense. Robinson v. Kroger Co., supra at 748; Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994). Denham failed to do so. Therefore, the grant of summary judgment to YMCA was proper. Even under the standards set forth in Robinson, summary judgment is appropriate in cases, such as this, where “the evidence is plain, palpable, and undisputed.” Robinson v. Kroger Co., supra at 748.


author: Eldridge, Judge.

text:
    A97A2308.
    DEAN’S CATERING v. STURM & ASSOCIATES.
    (498 SE2d 786)
   Eldridge, Judge.

Rhonda Berry d/b/a Dean’s Catering, a commercial tenant, signed a lease with Sturm & Associates, which provided for a monthly rent of $1,000. Berry began withholding rent because of alleged leaks in the roof of the shop. Sturm filed a dispossessory action against Berry in the Magistrate Court of Gwinnett County. Following trial, the magistrate court ruled in favor of Sturm, awarding possession of the premises and back rent.

Berry filed an appeal in the Superior Court of Gwinnett County seeking de novo review of the magistrate’s order. By agreement of the parties, the case went to a bench trial. Thereafter, the superior court awarded Sturm possession of the premises and $5,635 in back rent. Berry filed a direct appeal with this Court.

“Appeals from decisions of the superior courts reviewing decisions of. . . lower courts by certiorari or de novo proceedings . . . shall be by application for discretionary appeal. OCGA § 5-6-35 (a) (1), (b). The clear intent of section (a) (1), above, was to give the appellate courts (particularly the Court of Appeals . . . ) the discretion not to entertain an appeal where the superior court had reviewed a decision of certain specified lower tribunals (he., two tribunals had already adjudicated the case). C & S Nat. Bank v. Rayle, 246 Ga. 727, 730 (273 SE2d 139) (1980).” English v. Delbridge, 216 Ga. App. 366, 367 (454 SE2d 175) (1995). Because the appeal to this Court is taken from the decision of a superior court reviewing a decision of a magistrate court by a de novo proceeding, the discretionary appeal procedures of OCGA § 5-6-35 were required and this direct appeal must be dismissed. English v. Delbridge, supra at 367; Lewis v. Barclays American/Mortgage Corp., 204 Ga. App. 227 (419 SE2d 538) (1992); Crowder v. Citizens Trust Bank, 213 Ga. App. 477 (444 SE2d 853) (1994).

Decided March 13, 1998.

Rhonda R Berry, pro se.

Holland & Knight, Susan E. Edlein, Daryl G. Clarida, for appellee.

Appeal dismissed.

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


author: Pope, Presiding Judge. Blackburn, Judge,

text:
    A97A2459.
    IN RE DENHARDT.
    (498 SE2d 772)
   Pope, Presiding Judge.

Eddie L. Denhardt filed a petition in the State Court of DeKalb County requesting to be appointed as a permanent process server pursuant to OCGA § 9-11-4 (c). Attached to his petition was an affidavit in which Denhardt stated under oath that he was older than 18 years of age; was a citizen of the United States; would not exercise any authority as a court-appointed process server in any litigation in which he had an interest; and knew of no disability that would prohibit him from being appointed as a permanent process server. The State Court denied Denhardt’s petition, refusing ever to appoint a permanent process server on the ground that there was no way to ensure that such a person would be a disinterested party in every case in which the person might be called upon to act. Denhardt appeals the ruling, and under the facts presented in this case, we affirm.

“OCGA § 9-11-4 (c) plainly states who may serve process in a civil action.” Zimmerman v. Hammer, 220 Ga. App. 864, 865 (470 SE2d 688) (1996). And it is undisputed that under OCGA § 9-11-4 (c), the trial courts of this state have the discretion and authority to appoint disinterested persons, who are citizens of the United States and at least 18 years old, as permanent process servers. OCGA § 9-11-4 (c), however, does not expressly require such appointments. In the absence of such a requirement, any case law or evidence of a specific lower court rule to the contrary in this case, or any assertion that the State Court in question treated other applicants differently than Denhardt, we find no error in the ruling, which certainly was based upon a legitimate concern. See Fortson v. Fortson, 204 Ga. App. 827, 829 (2) (421 SE2d 106) (1992); Dotson v. Luxtron, Inc., 155 Ga. App. 504, 505 (271 SE2d 644) (1980) (service of process by a disinterested person is an appropriate concern in any case). We also find no merit to Denhardt’s contention that the State Court’s ruling makes the permanent process server provisions of OCGA § 9-11-4 (c) meaningless in light of the fact that other trial courts, in their discretion, may uniformly choose to use that provision even though the State Court involved here, in its discretion, apparently has uniformly chosen not to under any circumstances.

Judgment affirmed.

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

Blackburn, Judge,

dissenting.

I must respectfully dissent from the majority because the trial court failed to exercise its discretion in determining whether to appoint Denhardt as a permanent process server.

As we have previously held, OCGA § 9-11-4 (c) is plain and unambiguous. See Zimmerman v. Hammer, 220 Ga. App. 864, 865 (470 SE2d 688) (1996). The statute clearly authorizes process to be served by (1) the sheriff or deputy “of the county where the action is brought,” (2) the sheriff or deputy of the county “where the defendant is found,” (3) “the marshal or sheriff [or deputy] of the court,” (4) a special process server appointed by the court to serve process in a specific case, or (5) a permanent process server, who is “someone who is not a party and is not younger than 18 years of age and has been appointed as a permanent process server by the court in which the action is brought.”

In the present case, the trial court’s decision to never appoint permanent process servers clearly circumvents the legislature’s provision for such servers. While the trial court is authorized to reasonably pass on the qualifications of an individual for the position of permanent process server, it is not authorized to effectively veto the legislative act creating the position by imposing a condition which precludes anyone from being appointed thereto. The trial court is without authority to simply reject the general use of permanent process servers as provided by the legislature.

Additionally, the trial court’s rationale, that it must be able to determine whether the permanent process server is disinterested on a case-by-case basis, is not supported in fact or in law. The court makes no such determination of individuals in other categories who effect service of process. Denhardt has averred that he would not serve process in any litigation in which he held an interest. The court, in appointing a special process server, generally relies on the affidavit of the server or an attorney that such server is not interested in the litigation in which service is effected. The idea that the affidavit of a special process server that he has no interest in a particular case, provides greater protection from abuse than does the affidavit of a permanent process server that he will not effect service in any case in which he has an interest is without merit. The applicant in either case could mislead the court.

Decided March 13, 1998

Levy & Adams, D. Merrill Adams, for appellant.

Eddie L. Denhardt, pro se.

Jonathan A. Weintraub, for appellee.

Furthermore, the court’s contention that it is unable to determine whether a permanent process server is uninterested in the litigation in which service is to be effected, applies equally to others authorized by the legislature to serve process, including sheriffs, marshals and deputies. In connection with the permanent process server statute, the trial court has discretion only as to the appointment of individuals as permanent process servers. It must exercise that discretion. Its effective rejection of the legislative act generally constitutes a failure to exercise its discretion as to the appointment of the subject individual under OCGA § 9-11-4 (c).

“If the appellate court is unable to ascertain whether the lower court has exercised its discretion, the appropriate course for the appellate court is not to perform a de novo review of the evidence in the guise of a harmless error analysis, but instead is to vacate the judgment and remand the case to the lower court for further proceedings consistent with its statutory duty. In re E. W, 256 Ga. 681 (353 SE2d 175) (1987).” (Punctuation omitted; emphasis supplied.) Padilla v. Melendez, 228 Ga. App. 460, 463 (491 SE2d 905) (1997). Therefore, I would remand this case to the trial court for it to exercise its discretion in determining whether Denhardt is an individual who is qualified for appointment as a permanent process server.

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


author: Johnson, Judge.

text:
    A97A2559, A97A2581, A98A0029, A98A0042.
    CITY OF ATLANTA v. ST. PAUL FIRE & MARINE INSURANCE COMPANY (four cases).
    (498 SE2d 782)
   Johnson, Judge.

The City of Atlanta entered into a contract with John D. Stephens, Inc., wherein Stephens agreed to clear, grade and obtain fill dirt from several parcels of property in connection with the City’s construction of a new concourse at Atlanta’s Hartsfield International Airport. The contract required that Stephens obtain commercial general liability insurance and name the City as an additional insured. St. Paul Fire & Marine Insurance Company issued the policy.

Stephens performed the work as directed by the City. Although the City had acquired , some property in the area, the City directed Stephens to work on several parcels of property before it acquired proper title.

In an earlier action, four of the property owners sued the City and Stephens seeking injunctive relief and damages for the trespass upon their land. Stephens moved for and was granted summary judgment in the cases. The property owners appealed. This Court affirmed the grant of summary judgment to Stephens, holding that a contractor engaged in a public works project was not liable for damage to private property resulting from the work performed when it followed the directions of the employer and the damage did not result from the contractor’s negligence or wilful tort. Groves v. City of Atlanta, 213 Ga. App. 455, 457 (1) (444 SE2d 809) (1994).

The property owners dismissed the actions against the City without prejudice, then refiled the suits. In the complaints, which are nearly identical, the property owners allege that the City took their property without first compensating them. Specifically, the property owners complain that the City and persons acting on its behalf wilfully and intentionally entered their property and caused it to be cleared of trees, topsoil and vegetation, excavated, and graded. The complaints further allege that the City and its agents continued to enter upon and damage the property after being notified that they were trespassing.

The City requested that St. Paul defend the City in these lawsuits, but St. Paul did not respond. The City then filed a third-party complaint against St. Paul seeking a declaratory judgment requiring that St. Paul defend and indemnify the City in the actions. St. Paul moved for summary judgment, alleging: the coverage afforded the City was limited to damage resulting from Stephens’ work, when the damage here resulted from the City’s failure to acquire title to the property before directing Stephens to perform work upon the property; the property owners’ allegations against the City are based on alleged wilful and intentional conduct and do not seek to recover damages caused by an accidental “event” as required by the policy; the damages alleged by the property owners are excluded from coverage by the intentional property damage exclusion contained in the liability insurance policy; and the policy’s “control of property” exclusion precludes coverage for property damage to real property being worked on by Stephens if the damage resulted from that work.

The City filed a cross-motion for summary judgment, alleging that it was entitled to judgment regarding St. Paul’s duty to defend based on the unambiguous language of the policy or, alternatively, based on an examination of the four corners of the policy. The trial court granted St. Paul’s motion and, in so doing, effectively denied the City’s cross-motion. The City appeals. All four cases involve identical issues, appellees, appellants, and briefs. Only the property owners differ. Therefore, we will consider the appeals together.

An insurer’s duty to defend turns on the language of the insurance contract and the allegations of the complaint asserted against the insured. Canal Indem. Co. v. Chastain, 228 Ga. App. 255, 256 (491 SE2d 474) (1997). We look to the allegations of the complaint to determine whether a claim covered by the policy is asserted. Great Ant. Ins. Co. v. McKemie, 244 Ga. 84, 85-86 (259 SE2d 39) (1979). If the facts as alleged in the complaint even arguably bring the occurrence within the policy’s coverage, the insurer has a duty to defend the action. See Penn-Anterica Ins. Co. v. Disabled Am. Veterans, 224 Ga. App. 557, 559 (481 SE2d 850) (1997), aff’d, 268 Ga. 564 (490 SE2d 374) (1997). However, as the Supreme Court held in Great Am. Ins. Co., supra, where the complaint filed against the insured does not assert any claims upon which there would be insurance coverage, the insurer is justified in refusing to defend the insured’s lawsuit. Leader Nat. Ins. Co. v. Smith, 177 Ga. App. 267, 274 (5) (339 SE2d 321) (1985).

The contract of liability insurance at issue in this case provides that St. Paul will pay “amounts any protected person is legally required to pay as damages for covered . . . property damage that ... is caused by an event.” It further provides that St. Paul has the “right and duty to defend any claim or suit for covered injury or damage made or brought against any protected person. . . .” For the reasons discussed below, we hold that St. Paul is not obligated to provide a defense or indemnify the City in the actions filed against it by the property owners.

1. St. Paul asserts there is no duty to defend or pay because the policy provides that St. Paul will pay for covered damages caused by an “event.” According to the policy, “(e)vent means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Although the policy does not define “accident,” in Georgia an accident is “an event which takes place without one’s foresight or expectation or design.” OCGA § 1-3-3 (2). An accident is an unexpected happening rather than one occurring through intention or design. Allstate Ins. v. Gray 'es, 216 Ga. App. 419, 421 (1) (454 SE2d 616) (1995).

The complaints in the cases before us do not allege that the damages were caused by any unexpected happening, but from the City’s wilful and intentional entry and trespass upon their property. In their complaints, the property owners allege that the City continued to enter upon and damage the property even after the owners notified the City’s agents that the property was privately owned. Based upon the allegations in the complaints and the policy language requiring that the damages result from an accidental event, St. Paul had no duty to provide a defense to or indemnify the City in the lawsuits. See Leader Nat. Ins. Co., supra.

An insurer may have an obligation to defend even when the complaint against the insured does not allege facts which would give rise to coverage if the insured notifies the insurer of facts which would bring the claim within the policy coverage. See Colonial Oil Indus, v. Underwriters Subscribing &c., 268 Ga. 561, 562 (2) (491 SE2d 337) (1997). If the City had facts outside those alleged in the complaint which would have shown that its acts were not intentional and came within the policy definition of “event,” it was incumbent upon the City to apprise St. Paul of those facts. We see nothing in the record, including in the letter sent by the City to St. Paul in which the City requests that the insurer defend it, apprising St. Paul of facts showing that it acted other than intentionally in directing the clearing, excavating and grading of the property owners’ land. The City apparently never brought to the insurer’s attention any facts which would even arguably bring the claims within the coverage provided in the policy.

2. Similarly, St. Paul’s refusal to defend and indemnify the City was justified based on the policy’s intentional property damage exclusion. The insurance policy provides that it will not cover property damage “that is expected or intended by any protected person.” Again, the complaints filed by the property owners contain allegations that the City intentionally entered upon and damaged their property. There are no allegations in the complaint that the City acted negligently, and no facts shown by the City which would have even arguably placed the claims within the policy coverage. Had the property owners won their lawsuits against the City and recovered damages for trespass and conversion, St. Paul would not have been obligated to pay the claims. Inasmuch as no claim covered by the policy was asserted, and the City failed to apprise the insurer of facts which would bring the claims within the coverage, St. Paul justifiably refused the duty to defend the City in the actions. See Great Am. Ins. Co., supra at 86.

Decided March 13, 1998

Clifford E. Hardwick IV, Robert B. Caput, for appellant.

Sullivan, Hall, Booth & Smith, Michael A. Pannier, for appellee.

3. Even if we found that St. Paul was obligated to provide a defense to the City in the lawsuits, we would have found no coverage. An insurer’s duty to defend and its duty to indemnify are separate and independent obligations. See Penn-America Ins. Co., supra at 559. The breach of the duty to defend does not enlarge indemnity coverage beyond the parties’ contract. Colonial Oil Indus., supra. In other words, if St. Paul had a duty to defend, the existence of that duty does not necessarily mean it was required to indemnify the City. In determining whether a party is entitled to summary judgment on the issue of indemnification, the courts are not limited to looking at the complaint and the policy. See, e.g., Leader Nat. Ins. Co., supra at 273 (5).

In support of its motion for summary judgment, St. Paul submitted affidavits showing that the City’s agents continued working on the property even after the City received notice from the owners that the property was privately owned. The City has not pointed to any evidence contradicting these affidavits. Under these circumstances, no genuine issue of material, fact exists as to whether the City’s actions came within the meaning of “event (meaning ‘accident’ in the policy),” and the intentional act exclusion.

Moreover, we point out that the City could not have reasonably expected that Stephens’ liability insurance policy would provide coverage for damages resulting from the City’s own failure to acquire title to property before directing Stephens to work on the property. See generally Sapp v. State Farm Fire &c. Co., 226 Ga. App. 200, 203 (a) (486 SE2d 71) (1997). In fact, the City most likely required Stephens to have commercial general liability insurance to cover the contractor’s own negligent acts and the City’s vicarious liability therefor. The trial court did not err in granting summary judgment to St. Paul on the indemnity issue.

4. Based on the foregoing, the trial court did not err in denying the City’s cross-motion for summary judgment on the issue of St. Paul’s duty to provide a defense.

Judgments affirmed.

Pope, P. J., and Blackburn, J., concur.


author: McMuRRAY, Presiding Judge.

text:
    A98A0262.
    TUCKER v. THE STATE.
    (498 SE2d 774)
   McMuRRAY, Presiding Judge.

Defendant was charged in an indictment with 11 counts of armed robbery. Counts 2 though 5 were severed from Counts 6 through 11, whereupon defendant was tried before a jury on Counts 6 through 11 renamed 1 through 6 and found guilty of only a single charge: Count 2 (formerly Count 7), alleging defendant “did along with Demarco Alexander, with intent to commit theft, take from the person of Stephanie Joy Knox,... a purse containing U. S. currency, personal items, and necklaces, by use of a handgun, the same being an offensive weapon.” The evidence in support of this charge revealed that about 7:00 p.m. on April 16, 1996, Stephanie Knox was proceeding up the steps to her Brookstone apartment door when she was accosted by “someone running behind [her]. . . . The guy had his head down and he was acting like he was going down to the apartment below [her, but when she reached] the top of the steps, then he started running up the steps [with] the gun pointed at [her]. He told [her] to turn back around and [she] did. . . . Then he told [her] to give him [her] jewelry and [she] snatched it off and gave it to him and he grabbed [her] pocketbook.” Ms. Knox could not see the face of the robber “because he had his head down both times when he was walking downstairs and when he was coming upstairs.” The next day, she “received [her] purse back [from the police] . . . received one of the chains back and it was broke. And [she] had a money order and that was cashed. It was in [her] pocketbook.”

Emmett Brown, a neighbor of Stephanie Knox, “noticed this strange car [had] come into the parking lot,... a gray, Dodge Omni. So this guy about 6' 2" got out of the car, walked down the parking lot and ducked behind the bushes into the other apartment complex. . . .” Certain that something strange was happening, Emmett Brown “grabbed a trash bag and went outside and as [he] was going .out this guy was coming towards [Brown] with a pocketbook up under his shirt. As [Brown] passed him he had a gun up under his shirt also. [Brown] was getting ready to say something to him and then he looked at [Brown] kind of strange like, ‘What are you looking at?’ So [Brown] just kept walking towards the dumpster. ... As [Brown] was coming back the car was coming out of the apartment complex and that’s when [Brown] saw the tag number and everything.” Brown saw two males in the car and relayed this information, including the tag number, to the police.

James Williamson of the Clayton County Police Department received the lookout for “a gray Dodge Omni with a Florida tag of KC-G-2-6-A that was seen leaving the area.” When Officer Williamson stopped the vehicle, the driver was co-indictee Demarco Alexander, who told him “he was there visiting with his aunt, [even though] the house you could tell was definitely a vacant house. . . . An interview with [Alexander led police] to a subject by the name of Derrick Smallwood,” which in turn led police to defendant.

Subsequently, police executed a search warrant for the residence of defendant, where they “recovered a firearm, and when [police] recovered that firearm [under the cushion of the couch in the living room] and showed it to [defendant] he immediately made a spontaneous utterance and stated that, ‘That gun belongs to Demarco Alexander.’ That’s how [defendant] was tied into the armed robbery investigation. . . . [Defendant] was Mirandized on the scene at his house and . . . stated that he was aware of the location of items that were taken in the armed robbery at Brookstone.” In a subsequent recorded statement, defendant admitted being in Alexander’s car during the robbery of Stephanie Knox at the Brookstone apartments but denied any active participation. Although defendant denied obtaining any benefit from the specific robbery of Knox, he also admitted he shared marijuana with Alexander bought from the proceeds of other robberies. “After giving [police] the statement^ defendant] took [police] directly to the locations of where he remembered the armed robberies taking place.” Other evidence indicated that, after the March 31, 1996, robbery at the Windjammer apartments, the robber (presumably Alexander) “got into the [passenger side] of the [gray] Omni [with Florida tags], he ducked down and the car pulled off [onto] Riverdale Road.” That is, Alexander had a driver as an accomplice.

After the jury verdicts as to Counts 6 through 11, defendant entered a negotiated “Guilty [plea] on Counts 1-5.” Defendant appeals directly from the judgment of conviction and sentence entered by the trial court on the jury’s single guilty verdict on Count 2 (formerly Count 7). Held'.

1. The second enumeration contends the trial court erred in admitting into evidence defendant’s custodial statements both written and oral, arguing they were improperly induced by the police. The trial court made a pre-trial determination that defendant’s statements were voluntary, before a transcript of defendant’s taped interview was produced in response to the poor audio quality of the audiotape. Subsequently, the transcript raised new doubts as to the correctness of that ruling. Defendant renewed his challenge to the voluntariness of his statements and moved to strike them as evidence. Specifically, defendant points to exhortations by Detective Reed Pollard of the Clayton County Police Department that “once you get it off your chest then we [the detectives] can go to bat for you”; and repeated references that “the Judge is gonna consider that [defendant was admitting his mistakes;] the Judge needs to see that you are sorry and you are willing to take responsibility for your mistake[;] the Judge is going to take into consideration, you’ve got [only four weeks] before [defendant] can get [his] GED.” The trial court declined to alter its pre-trial ruling as to voluntariness and this evidentiary ruling is enumerated as error.

(a) At the pretrial hearing conducted pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908), the State showed that defendant was warned of his rights as prescribed by Miranda v. Arizona, 384 U. S. 436 (86 SC 1602,16 LE2d 694), at his home. “Once [defendant] was Mirandized he was very cooperative and he told [the police] that he could help [them] recover the purse that was taken in the armed robbery that was under investigation. After he [led the police] to the location and that purse, [the police] conducted an interview at College Park CID precinct, of which [defendant] confessed to being present during four armed robberies with Demarco Alexander and he gave [police] that confession on tape and also . . . [in] a written confession.” Detective Hill made no deal with defendant “as far as any lenience” but did explain to defendant “that the only thing that law enforcement is allowed to do is make the court or district attorney aware of [defendant’s] cooperation. And it was . . . stated plainly that we [the police] cannot tell him [defendant] what the district attorney or court would decide, that only we can make them aware that they [suspects generally] cooperated and that we [the police] could not make any promises or threats.” State’s Exhibit 12 is a “WAIVER OF COUNSEL BY DEFENDANT IN CUSTODY,” signed by defendant, which recites in part: “No threats or promises have been made to me to induce me to sign this Waiver of Counsel and to make a statement to the officers.”

In contrast, defendant testified that, “prior to the tape recording of [his] statement was when [Detective Hill] first initiated, ‘Look, we need to wrap this up. Will you cooperate with us? We need cooperation. Then I [Detective Hill] will go to the DA and I will talk to the judge and I will, tell them that you cooperated and I will talk on your behalf, ... as for a lesser crime.’ That’s when he [Detective Hill] started making the promises of leniency before he actually cut the tape recorder on.”

The trial court found that defendant’s “statement was freely and voluntarily given without any hope [sic] for punishment or hope for reward and will be admitted.”

“The burden is on the prosecution to show the voluntariness of a custodial statement by a preponderance of the evidence. High v. State, 233 Ga. 153 (1) (210 SE2d 673) (1974). ‘Factual and credibility determinations of this sort made by a trial judge after a (voluntariness) hearing must be accepted by appellate courts unless such determinations are clearly erroneous. (Cits.)’ Johnson v. State, 233 Ga. 58 (209 SE2d 629) (1974).” Wilson v. State, 211 Ga. App. 457 (1) (439 SE2d 685). In the case sub judice, the evidence at the pre-trial Jackson v. Denno hearing was conflicting as to whether Detective Hill promised defendant any form of leniency. Since Detective Hill’s denial of any initial promise of leniency is corroborated by the transcript of defendant’s custodial interview, the trial court’s pre-trial determination of voluntariness “is supported by evidence, is not clearly erroneous, and will not be disturbed on appeal. Wilson v. State, 211 Ga. App. 457 (1)[, supra].” Leatherwood v. State, 212 Ga. App. 342, 343 (2) (441 SE2d 813).

(b) But the trial court’s subsequent reasoning that it could not reconsider its previous ruling, in response to a renewed challenge to voluntariness based on additional evidence, is erroneous. “The denial of a pre-trial suppression motion, an interlocutory evidentiary ruling, is subject to review by the presiding judge ex mero motu. [Cit.] ‘The trial court may, within its sound discretion, consider anew a suppression motion previously denied. (Cits.)’ [Cit.]” State v. Hall, 229 Ga. App. 194, 195 (2), 196 (2) (a), 197 (493 SE2d 718). The question now becomes whether the transcript of the custodial interview shows error in the admission of defendant’s statements.

(c) That transcript contains defendant’s affirmation that he was, in fact, not induced to make his statement because of any threats or promises of leniency, and the record affirmatively shows there was no express promise of leniency. See Lyles v. State, 221 Ga. App. 560, 561 (1) (472 SE2d 132). Yet, defendant argues the repeated blandishments invoking the authority of a judge are implicit promises of leniency.

According to the transcript, defendant was again read his rights. He affirmed he understood those rights and agreed to make a statement without the benefit of counsel, expressly avowing that “no threats or promises have been made to [defendant] to induce [him] to sign the waiver of counsel [and] to make statements to the officer.”

Defendant then explained he was riding with Demarco Alexander on April 16, 1996, when Alexander “pulled over in Brookstone and saw a lady getting out of the car, he kept driving down and parked the car on down a ways, he jumped out and walked towards (unintelligible) and [defendant] stayed in the car, [Alexander] said I’ll be right back (unintelligible). . . . [Defendant] just stayed in the car, he [Alexander] was gone for about three or four minutes when he came back he was walking like this (obviously some gesture) (unintelligible). . . . He came back to the car and we drove off. . . . We had a gun while we were driving (unintelligible) he had it on me (unintelligible) he dropped me off at the house (unintelligible) that’s how I got it.”

Having thus admitted that he kept and hid the gun after the robbery of Ms. Knox, defendant then became lachrymose. The following then transpired: “[DETECTIVE REED POLLARD]: You’re doing great so far, real great. . . let’s get everything behind you, (unintelligible) about another one, too, you also know about a lot more and I know its [sic] hard, but you’re admitting your mistakes and the Judge is gonna consider that, Right. . . . [DEFENDANT]: (Makes a crying sound) . . . [DETECTIVE POLLARD]: (Unintelligible) and that’s what we were talking about the Judge needs to see that you are sorry and you are willing to take the responsibility for your mistake. . . . [DEFENDANT]: (Unintelligible). . .

Subsequently, the following transpired: “[DETECTIVE POLLARD]: [W]hen we get through all of this we can talk to your aunt and tell her that you were a responsible, that you were a responsible adult that owned up to his mistakes and accepted the responsibility, the Judge is going to take that into consideration, you’ve got how long before you can get your GED? [DEFENDANT]: Four weeks. [DETECTIVE POLLARD]: Four weeks? Well that shows that you’re doing good, O.K., That is something the Judge is going to take into consideration, that you, that you’re out there trying. [DEFENDANT]: (Sniffle)”

Defendant calmed down and related his involvement in three other armed robberies, at the Huntington Woods, North Castlegate, and Lake Regency apartments.

“To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” OCGA § 24-3-50. “The fact that a confession has been made under a spiritual exhortation, a promise of secrecy, or a promise of collateral benefit shall not exclude it.” OCGA § 24-3-51. “[A] hope of lighter punishment (induced by one other than the defendant) is usually the ‘hope of benefit’ to which Code Ann. § 38-411 [now OCGA § 24-3-50] refers ([cits.]), and that [in the case sub judice, Detective Pollard’s implied promises] to tell the judge of [defendant’s] cooperation, did not constitute the kind of‘hope of benefit’ which is contemplated by Code Ann. § 38-411 [now OCGA § 24-3-50], The trial court did not err in overruling the [renewed] motion to suppress [defendant’s custodial statements] or in admitting the confession. [Cits.]” Presnell v. State, 241 Ga. 49, 55 (5) (243 SE2d 496), rev’d in part on other grounds, Presnell v. Georgia, 439 U. S. 14 (99 SC 235, 58 LE2d 207).

2. In the first and third enumerations, defendant challenges the sufficiency of the evidence, arguing he was merely present at the scene.

Mere presence at the scene of the commission of a crime is not sufficient to convict a witness of being a party to the crime. But presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. Jones v. State, 242 Ga. 893 (1) (252 SE2d 394).

Decided March 13, 1998.

Barbara B. Briley, for appellant.

Robert E. Keller, District Attorney, Adrian Britt, Assistant District Attorney, for appellee.

Evidence that Demarco Alexander’s companion, the driver of the gray Dodge Omni with Florida tags, was a willing accomplice in the March 31, 1996 armed robbery at the Windjammer apartments, when coupled with defendant’s after-the-fact knowledge of the hiding place of Ms. Knox’s belongings; defendant’s possession of the gun; and his admission he shared in the proceeds of other robberies, is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, as an aider and abettor of the April 16, 1996 armed robbery alleged in Count 7 (renamed Count 2) of the indictment. Butler v. State, 194 Ga. App. 208 (2), 209 (390 SE2d 278); OCGA § 16-2-20 (b) (3).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A0372.
    JOHNSON v. THE STATE.
    (498 SE2d 778)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of driving under the influence of alcohol and failure to maintain lane. The evidence adduced at trial revealed that Officer Eric Wiernik of the City of Lawrenceville Police Department was “operating stationary radar on Georgia 316, eastbound at Highway Mile Marker 4,” about 3:45 a.m. on October 12, 1995, when he observed defendant driving a motor vehicle “at 70 miles an hour.” Officer Wiernik followed defendant for “[approximately three quarters of a mile [during which time he] observed the vehicle pitch sharply, nose downward, which is an indication of the driver applying the brakes rather hard. When this happened, the vehicle also swerved to the left which also came close to striking another vehicle which [was] traveling in the left lane. . . . [Defendant] was passing this other vehicle and had just about gotten past this vehicle traveling in the right lane when it did this nose-dive and swerved to the left. This caused the driver of the other vehicle to have to apply his brakes, as well.” Defendant subsequently “crossed the fog line on 316 while the vehicle traveled in the right lane. This area of 316, at the time, was also under construction, so there were several construction barrels lined up the highway. Each time the right side wheels would cross the fog line, the vehicle would also come rather close to striking those construction barrels.” When Officer Wiernik approached defendant, “[t]he first thing [he] noticed was an odor of alcoholic beverage coming from inside the vehicle.” When defendant exited the car, “he was unsteady on his feet as he walked, not overly off balance, just maybe unsure of his footing.” Defendant’s “face had a flushed, reddish appearance to it, his eyes had a glazed watery appearance[;] his speech would be somewhat slurred and there was an odor of alcoholic beverage on his breath, as well.” Defendant was unable to stand on one leg. An alcosensor evaluation was positive for the presence of alcohol. “Once [Officer Wiernik] completed [his] evaluations, it was very much [his] opinion that [defendant] was less safe to operate a motor vehicle.”

After reading defendant his Implied Consent warnings, Officer Wiernik requested that defendant submit to tests of both his breath and his urine. Defendant “indicated that he would submit to both chemical tests.” The test of defendant’s breath on the Intoxilyzer 5000 indicated that his blood alcohol level was 0.097 grams percent whereas urinalysis indicated a blood alcohol level of 0.12 grams percent. Held:

In his sole enumeration of error, defendant contends the trial court erred in giving the following jury instruction: “I charge you that breath alcohol measuring equipment approved by the State Crime Lab is considered accurate if properly operated.” He argues this instruction “misstated the law, invaded the province of the jury, and illegally shifted the burden of proof. . . .”

The General Assembly determined that chemical analysis of blood, urine, breath or other bodily substance, when “performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation . . .” shall be admissible as evidence of the amount of alcohol or drug in a person’s system. OCGA § 40-6-392 (a) (1) (A). The scientific objectivity and reliability of intoximeter tests to determine blood alcohol concentration was approved in Lattarulo v. State, 261 Ga. 124, 126 (3) (401 SE2d 516). Consequently, we do not agree with defendant that the instruction under review misstates the law. On the contrary, it is a correct statement of the law. “An accused may always introduce evidence of the possibility of error or circumstances that might have caused the machine to malfunction.” Lattarulo v. State, 261 Ga. at 126 (3), supra. Furthermore, we do not agree this instruction invades the province of the jury or shifts the burden of proof. See Henson v. State, 168 Ga. App. 210, 213 (4) (308 SE2d 555).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

Decided March 13, 1998.

Clark & Towne, Jessica R. Towne, for appellant.

Gerald N. Blaney, Jr., Solicitor, Scott A. Drake, Assistant Solicitor, for appellee.