author: Andrews, Judge. Beasley, Judge,

text:
    A92A0937.
    GORDON v. THE STATE.
    (425 SE2d 906)
   Andrews, Judge.

Gordon appeals her conviction of 69 counts each of accessing a computer for fraudulent purposes, OCGA § 16-9-93 (a), and first degree forgery of the checks so produced, OCGA § 16-9-1.

Viewed in favor of the verdict, the evidence was that Gordon worked for Tara Foods, a peanut butter producing subsidiary of Kroger Company, from December 1983 until November 1988. She worked on the payroll and was the payroll clerk when she left.

The main office of the Kroger Company was located in Cincinnati, Ohio. The entire Kroger corporate structure used the same payroll computer system and the main computer was located in Cincinnati, where all programs for the system originated. The duties of the payroll clerks in the system, including Gordon, included collecting the time cards for the employees each week, totaling the hours worked and punching these numbers into the main computer system. This resulted in the checks being printed at the local office. The checks came off the computer in a single perforated sheet and then had to be physically separated. The information put into the computer was balanced with the printed checks. After doing this, Gordon would take the checks to either Jack Fleming, the plant manager, or Tyrone Massey, the comptroller, the authorized signers for Tara Food checks. They would sign the checks and return them to her. She then distributed the checks to the supervisors who gave them to the individual employees. Checks were normally printed on Wednesday morning and handed out to the clean-up crew after 4:00 p.m. Wednesday and to the majority of employees on Thursday.

From February 1986 through October 1988, checks were issued in the names of 28 different employees and then cashed without their knowledge. None of them authorized anyone else to sign and cash the checks for them. Most of these checks were vacation checks. It was the practice to issue the employees a check before they took their vacation, representing the vacation pay due them during that time. Their regular pay check would also issue at the normal time. None of the 28 employees involved took the vacation represented by the issued and cashed checks, nor had most of them accrued that much vacation.

The Kroger computer access system was set up so that each employee had a computer profile which allowed that employee access to only those portions of the computer programs that were necessary to that person’s job. At Tara Foods, only two people had profiles which allowed access to the payroll information, Gordon and Massey. Massey was not present on the days that over 20 percent of the improperly issued checks were produced. Gordon, according to company attendance records, was present when all were produced. Further, whoever produced the checks would also have to obtain the appropriate authorized signatures before the checks could be cashed, and Gordon did this as payroll clerk.

The checks were all cashed at First State Bank & Trust, where the Tara Foods payroll account was maintained, although many of the employees named on the checks had accounts at other banks or the credit union. Gordon was responsible for making the deposit to cover the payroll, which she did each Wednesday. Most of the improperly issued checks, according to the bank markings on them, were cashed on Wednesdays, the same day they were issued. These checks totaled between $35,000 and $36,000.

Employee Letchworth, in whose name one of the checks listed in the indictment was issued, testified to an additional incident when she was issued a check to which she was not entitled. She took it back to Gordon who suggested that the check be cashed and the proceeds split between them. Letchworth declined and left that check with Gordon.

1. Gordon’s second and third enumerations both deal with claimed errors relating to Counts 1 through 10 and 85 through 94, and will be addressed together.

It is contended that the court erred in not granting her general demurrer and motion for directed verdict as to these counts. Both were premised on the statute of limitation. Pretermitting the merits of the arguments made, we note that the jury returned not guilty verdicts on these counts after being instructed regarding the statute of limitation defense, making error, if any, harmless. “Error must be shown to be harmful before it will be deemed to be reversible error. [Cit.]” Williams v. State, 201 Ga. App. 384, 386 (3) (411 SE2d 316) (1991).

2. The first enumeration attacks the sufficiency of the evidence on the accessing computer counts on four premises.

(a) In Enumeration 1 (a), as well as the fifth enumeration dealing with denial of her motion for directed verdict, Gordon contends the evidence was insufficient because it was circumstantial and did not exclude every hypothesis except that of her guilt. These two enumerations are considered together. OCGA § 16-9-93 provides that “[a]ny person who knowingly and willfully, directly or indirectly, without authorization, accesses, causes to be accessed, or attempts to access any computer, computer system, computer network, or any part thereof which, in whole or in part, operates in commerce or is owned by . . . any entity operating in or affecting commerce for the purpose of: (1) Devising or executing any scheme or artifice to defraud; or (2) Obtaining money, property, ... for themselves or another by means of false or fraudulent pretenses, representations, or promises . . .” is guilty of computer fraud.

Here, the checks were not received by the payees and reflect on their faces that they were cashed. Gordon had the knowledge of the computer system and the access code for the payroll system that gave her opportunity for committing the crime. Her theory was that the other individual who also had the access code for payroll could have done it.

“Under White v. State, 253 Ga. 106, 107 (317 SE2d 196) (1984), ‘circumstantial evidence must exclude only reasonable inferences and hypotheses and it is not necessary that such evidence be devoid of every inference or hypothesis except that of the defendant’s guilt.’ ” Peppers v. State, 261 Ga. 338, 339 (1) (404 SE2d 788) (1991). “Questions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb the finding, unless the verdict is unsupportable as a matter of law. [Cits.]” Chambless v. State, 165 Ga. App. 194, 196 (2) (300 SE2d 201) (1983). Here, the jury’s conclusion that Gordon, and not the other suggested perpetrator, was the one who accessed the system and generated these checks cannot be said to be unsupportable as a matter of law. It is not our province to reweigh the evidence and the inferences drawn from it by the jury. Holcomb v. State, 198 Ga. App. 547 (402 SE2d 520) (1991); see OCGA § 24-9-80.

(b) Gordon also contends there was a fatal variance between the allegata and probata. The indictment in Counts 1 through 84 alleged that Gordon “did . . . knowingly, willfully, directly and without authorization, access a computer network owned by Kroger Company, ... to wit: Francis Gordon did access the computer network of Kroger Company, . . . and change certain data, to wit: accumulative leave records of each employee . . . listed, thereby causing the creation of certain checks, . . . , when no such payment for said accumulative leave was authorized.”

Gordon cites in support of her argument the testimony of Massey and Donnelly, the auditor, who both denied any personal knowledge of any computer changes in the leave records of employees.

This overlooks testimony from these same witnesses, however, that review of company business records revealed that there were employees who had been paid for more vacation hours than they were entitled to and that checks were issued in situations where there was no reason for the check’s issuance. Further, the audit revealed that, although there was a 99 percent accuracy rating between hours worked and pay issued, there was only a 50 percent accuracy rating with regard to vacation earned and vacation pay issued. Therefore, there was evidence from which the jury could have concluded that some manipulation of employee hours had occurred resulting in the improper checks.

Even assuming, however, that there was no such proof, that would not automatically result in the conclusion that there was a fatal variance between the allegata and probata.

“Based on DePalma v. State, 225 Ga. 465, 469 (3) (169 SE2d 801) (1969), our courts have departed from an overly technical application of the fatal variance rule, focusing instead on materiality. “ ‘ “The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to ‘affect the substantial rights’ of the accused.” ’ [Cits.] . . . [I]t is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense [and] not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense.” Partridge v. State, 187 Ga. App. 325, 327 (3) (370 SE2d 173) (1988). Here, the indictment fulfills both requirements.

(c) Gordon also alleges the State’s failure to prove that Kroger Company, the victim, was a business operating in commerce as required by OCGA § 16-9-93. In addition to the fact that Kroger was headquartered in Ohio and used an interstate computer network to run its operations, there was also proof that the company owns thirty-six or more manufacturing companies, as well as the Kroger chain of grocery stores, a portion of Super X Drugstores, and five or six food chains operating west of the Mississippi. Commerce was adequately proven.

3. Subsection (d) of the first enumeration and the sixth enumeration deal with the adequacy of evidence for convictions of first degree forgery of the checks as set out in Counts 95 through 168 and will be considered together.

With the exception of the check listed in Count 8 and Count 92, which contained the admitted signature of Gordon in her own name under that which purported to be that of Schoolman and which was issued and cashed in June 1986, there was no direct evidence to show that Gordon presented any of the checks to the bank. Gordon was found not guilty of those two counts.

“ ‘Uttering or delivering the writing is an essential element of forgery in the first degree [OCGA § 16-9-1 (a)] whereas it is not an element of the lesser degree of forgery (forgery in the second degree — OCGA § 16-9-2).’ [Cits.] An offer to pass a check to another person as a genuine instrument constitutes ‘uttering.’ [Cit.] There must be a representation of genuineness but acceptance is not necessary. [Cits.]” Hudson v. State, 188 Ga. App. 684, 689 (2) (374 SE2d 212) (1988).

There was no witness from the bank who could identify Gordon as having presented any of the forged checks. There was no handwriting comparison presented by an expert or lay witness. There was nothing to tie Gordon to the presentation of these checks except the fact that she regularly conducted the company’s business at that bank and had, on occasion, cashed other employees’ checks with their permission, but every time she did so, she was required to sign her own name under that of the payee. The State has failed to prove uttering by Gordon and the convictions of Counts 95 through 168 (except 98, 132, 145, and 155, upon which she was acquitted) must be reversed. McGowan v. State, 173 Ga. App. 438, 439 (5) (326 SE2d 805) (1985); see Graham v. State, 196 Ga. App. 426 (396 SE2d 52) (1990); Hudson v. State, supra; Howard v. State, 181 Ga. App. 187 (351 SE2d 550) (1986) (both Howard and Graham involved corroborated accomplice testimony, including handwriting analysis or third party identity of the writer as involved in the uttering, and Hudson involved extensive circumstantial evidence linking the defendant to the crime, including handwriting comparisons).

4. Finally, Enumerations 4 and 7 allege error in admission of the documents in State’s Exhibit 1, a book containing, inter alia, copies of the checks and time cards of the employees for whom they were allegedly issued.

(a) Gordon contends, relying on Hollingsworth v. State, 7 Ga. App. 16, 17 (65 SE 1079) (1909), that evidence relating to Counts 1 through 10 and 85 through 94, should not have been admitted due to the statute of limitation defense. As noted in Division 1 above, however, the jury acquitted Gordon of the counts subject to that defense and, since the jury was not instructed that those documents could be considered as to the remaining counts, any evidentiary objection as to the evidence would be rendered harmless in these circumstances.

Decided November 24, 1992.

Walters, Davis, Smith, Meeks & Pittman, Thomas H. Pittman, for appellant.

Britt R. Priddy, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

(b) Also, Gordon alleges error in the court’s admission into evidence of State’s Exhibit 1, a notebook containing both the improperly issued checks, properly issued pay checks, time sheets, and computer generated weekly pay histories for the affected employees.

The objection made below and presented for consideration here is that “a proper foundation has not been laid for the admission into evidence of any business record. . . .”

“Objection on the ground of a lack of proper foundation without stating what the proper foundation should be is insufficient and presents nothing for consideration on appeal. Newman v. State, 239 Ga. 329 (236 SE2d 673) (1977); Dillard v. State, 128 Ga. App. 747 (197 SE2d 924) (1973).” Dick v. State, 246 Ga. 697, 704 (13) (273 SE2d 124) (1980); Carter v. State, 146 Ga. App. 322, 323 (6) (246 SE2d 378) (1978).

In addition, the evidence presented showed the normal method used by Kroger Company in issuing payroll checks and keeping time records and these records were properly admitted. See Gilreath v. State, 247 Ga. 814, 829 (10) (279 SE2d 650) (1981).

Judgment affirmed in part and reversed in part.

Birdsong, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I fully concur but note that, with respect to Division 3 of the opinion, the trial court did not instruct the jury on the law regarding parties to a crime. See OCGA §§ 16-2-20; 16-2-21. Thus the jury was compelled to find that defendant herself uttered or delivered the checks. The circumstantial evidence did not exclude every reasonable hypothesis save that defendant did so.

       This statute was substantially révamped by Ga. L. 1991, p. 1045 et seq. which did not go into effect until after the conviction in this case. This case is considered under the old version of the statute.

       In the revamped statute, effective in 1991, the requirement that “commerce” be proven has been deleted.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A92A0974.
    CAMPBELL v. THE STATE.
    (426 SE2d 45)
   Pope, Judge.

Defendant James Martin Campbell appeals his conviction of four counts of armed robbery and one count of theft by taking resulting from robberies on August 8, 1990 and August 9, 1990. His motion for new trial was denied.

Construing the evidence in the light most favorable to support the verdict, the evidence showed that on August 8, 1990, Lisa Pike, Tina Smith and Ken Fincher were robbed at knifepoint between 10:30 and 11:00 p.m. at a car dealership on Highway 41 in Cobb County. The robber then drove away in the car of one of the victims. On August 9, 1990, around 11:00 p.m. Barbara Burge was robbed by a man armed with “what looked like an ice pick” at an automatic teller machine on Highway 41 in Cobb County.

Defendant became a suspect in both robberies and was arrested. Shortly after his arrest, Mr. Fincher and Ms. Pike identified the defendant in a photographic lineup as the robber. The victim from the second robbery identified defendant as the robber in a physical lineup. All of the victims subsequently identified the defendant as the robber during in-court identifications.

1. Defendant’s first enumeration of error is that the trial court erred in denying his motion to suppress the identification evidence of the photographic and physical lineups as well as the in-court identifications.

(a) Defendant argues that his Sixth Amendment right to counsel was denied because he was denied counsel at his pre-indictment physical lineup. This enumeration of error is without merit. “An accused is not entitled as a matter of right to counsel at a lineup conducted after arrest but prior to indictment. Kirby v. Illinois, 406 U. S. 682 (92 SC 1877, 32 LE2d 411) [(1972)]. The right to counsel attaches only after the onset of formal prosecutorial proceedings. [Cit.]” Campbell v. State, 147 Ga. App. 554 (249 SE2d 356) (1978). See also Davis v. State, 176 Ga. App. 650 (337 SE2d 431) (1985). Defendant argues, however, that prosecutorial proceedings had begun against him because he had already appeared at an initial hearing before a magistrate who denied bond, that this hearing was a prosecutorial proceeding against him, and therefore he was entitled to counsel at all critical stages thereafter. See State v. Simmons, 260 Ga. 92 (390 SE2d 43) (1990). We disagree. As stated in Simmons, “ ‘An initial appearance before a magistrate at which the indictment is read, the name of the defendant asked, the defendant is apprised of his Miranda rights, and counsel is appointed lacks the adversary character of later proceedings. Nothing at this stage of the proceedings . . . impairs the defense of the accused and therefore there is no constitutional right for counsel to be present.’ (United States v. Perez, 776 F2d 797, 800 (9th Cir. 1985).) We agree with the Ninth Circuit’s assessment and further note that, in this case, the magistrate had no authority to set bond, see OCGA § 17-6-1 (a). . . .” State v. Simmons, 260 Ga. at 94. Pursuant to OCGA § 17-6-1, certain offenses, including armed robbery, are “bailable only before a judge of the superior court,” not a magistrate; therefore, in this case, as in Simmons, the magistrate had no authority to set bond for the defendant. Accordingly, no bond was set. Adversarial proceedings had not begun against the defendant, and his right to counsel had not attached at the time of his pre-indictment physical lineup.

(b) Defendant also argues the photographic lineup was impermissibly suggestive because the dates on which the photos were taken were allegedly visible to the witnesses, and the date on defendant’s photograph was eight to ten years more recent than the other photographs in the lineup. The record contains no evidence that the witnesses actually saw the dates on the photographs. The photographic array was presented so that the dates were blocked from view. In order for the witnesses to view the dates, they would have had to manipulate, with some difficulty, the folder which covered the dates, and the record contains no evidence that either witness did this. Also, the date on the defendant’s photograph is cut off; therefore, even if the witnesses managed to see the dates, they would not have known that the defendant’s picture was taken more recently than the other photographs. “The photograph of the [defendant] is not unduly dissimilar from the other five photographs so that the lineup would have been improperly suggestive.” Jenkins v. State, 146 Ga. App. 458, 460 (4) (246 SE2d 466) (1978). The trial judge did not err in denying defendant’s motion to suppress the evidence of the photographic lineup; therefore this enumeration is without merit.

Defendant also argues that the in-court identifications were tainted because a police officer told the two witnesses who made the photographic identification that they had chosen the “right person” after they identified the defendant in a photographic lineup. “It is not a good practice to indicate to a witness that he has chosen the ‘right’ person as it could lead to an improper tainting of a subsequent in-court identification in a questionable case. However, whether a subsequent in-court identification is tainted depends on all the circumstances of each case.” Dodd v. State, 236 Ga. 572, 573 (224 SE2d 408) (1976). In this case, the witnesses “had opportunity to view the criminal at the time of the crime, considering both the amounts of time involved and light available.” Heyward v. State, 236 Ga. 526, 529 (1) (224 SE2d 383) (1976). The two witnesses who made the photographic identification of defendant testified that the car dealership was well-lighted, that they were only eight to ten feet away from the robber, that his identity was not concealed, and that their attention was focused on the robber. Each gave descriptions of the robber the day after the robbery; these descriptions were consistent and matched the description of the defendant. They were positive about their photographic and in-court identifications of defendant. Given the totality of the circumstances in this case, the trial court did not err in denying defendant’s motion to suppress the identification evidence.

2. Defendant also argues the trial court erred by refusing to sever Counts 1 through 4, arising from the robbery on August 8, 1990, from Counts 5 and 6 (defendant was acquitted on Count 6), arising from the robbery on August 9, 1990. “Joinder of separate offenses in a single indictment is permitted where they (a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. (Cit.) . . . (W)henever two or more offenses have been joined for trial solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses. (Cit.) In other circumstances, the trial court has the discretion to grant a severance where it is deemed necessary or appropriate to achieve a fair determination of the defendant’s guilt or innocence of each offense. . . .” (Punctuation omitted.) Eady v. State, 182 Ga. App. 293, 296 (355 SE2d 778) (1987). See also Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975). The facts in this case indicate the offenses were based on, as stated in Eady, “a series of acts connected together or constituting parts of a single scheme or plan.” (Punctuation omitted.) These “armed robberies were related in time, manner [and] general location. . . .” Evans v. State, 188 Ga. App. 379 (373 SE2d 70) (1988). The robberies took place on consecutive nights at the same time of night within a few miles of each other on Highway 41 and near defendant’s residence. The robber used a stabbing weapon and threatened to kill the victims. In both cases, the robber did not attempt to hide his identity and was subsequently identified as the defendant in both robberies. In both cases, the robber left in a stolen car. These robberies were not merely similar, but evidenced a common plan or scheme. See, e.g., Parks v. State, 199 Ga. App. 736 (406 SE2d 229) (1991); Evans v. State, supra; Eady v. State, supra. “Moreover, the offenses charged were not so numerous or the evidence so complex that, prior to trial, the court could find that the trier of fact would be unable to distinguish the evidence and apply the law intelligently as to each offense.” Eady v. State, 182 Ga. App. at 296. The trial court did not abuse its discretion in refusing to sever the counts; therefore, this enumeration is without merit.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.

Decided November 24, 1992.

Richard 0. Allen, for appellant.

Thomas J. Charron, District Attorney, Don T. Phillips, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A1064.
    SARVER v. THE STATE.
    (426 SE2d 48)
   Birdsong, Presiding Judge.

Susan Ivey Sarver, pro se, appeals her misdemeanor conviction for making harassing telephone calls in violation of OCGA § 16-11-39 (4). Held:

1. Although Sarver has filed neither an appellant’s brief nor an enumeration of error, under Lee v. State, 203 Ga. App. 487, 488 (417 SE2d 426); Allen v. State, 192 Ga. App. 320, 321 (385 SE2d 29); Conyers v. State, 183 Ga. App. 591 (359 SE2d 454); and DeBroux v. State, 176 Ga. App. 81 (335 SE2d 170), we are not authorized to dismiss the appeal, but instead must “ ‘make every effort to render a decision on the merits of the case.’ ” Lee v. State, supra at 488.

2. Accordingly, having conducted an independent review of the record on appeal (Allen v. State, supra), we find the evidence presented at trial is insufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to sustain Sarver’s conviction for violating OCGA § 16-11-39 (4). The accusation charged that Sarver “on the 18th day of April, 1991, in DeKalb County, State of Georgia, committed the offense of harassing phone calls by telephoning Brian Fuller for the purpose of harassing him in violation of OCGA § 16-11-39, the date alleged being a material element of this charge.” OCGA § 16-11-39 provides: “A person who commits any of the following acts commits a misdemeanor: ... (4) Telephones another repeatedly, whether or not conversation ensues, for the purpose of annoying, harassing, or molesting another or his family; uses over the telephone language threatening bodily harm; telephones and intentionally fails to hang up or disengage the connection; or knowingly permits any telephone under his control to be used for any purpose prohibited by this paragraph.” (Emphasis supplied.) In Hazelton v. State, 200 Ga. App. 61, 63 (406 SE2d 569), this court held that “a person may commit the offense of ‘harassing phone calls’ in separate and alternative ways. The offender commits the offense when he repeatedly telephones another with an intent to harass. He commits the offense when he uses the telephone to threaten bodily harm. He commits the offense when he fails to hang up or disengage the phone. Finally, the offender commits the offense when he knowingly permits another to use a telephone under his control in any of the foregoing ways.” (Emphasis supplied.)

As this accusation alleged only that Sarver called Fuller for the purpose of harassing him, to prove that she violated OCGA § 16-11-39 (4) the prosecution was required to establish that she telephoned Fuller repeatedly with the intent to harass. Hazelton v. State, supra; compare Barnett v. State, 204 Ga. App. 491, 496 (3) (420 SE2d 43); Feagin v. State, 198 Ga. App. 460, 461 (2) (402 SE2d 80); Ross v. State, 195 Ga. App. 624 (1b) (394 SE2d 418). Both Fuller and Sarver testified, however, that Sarver telephoned Fuller only once on April 18, 1991. Since one telephone call cannot satisfy the requirement that she had called him repeatedly, this evidence is not sufficient to prove that she violated OCGA § 16-11-39 (4). On the contrary, this evidence proves that Sarver did not repeatedly call Fuller on April 18, 1991. Although the State argues that proof of one telephone call to Fuller’s wife on April 17 and three or four other telephone calls on other dates several months earlier was sufficient to prove the offense, such proof is not sufficient because the prosecution alleged that the date was a material element of the charge. When “the indictment specifically alleges the date of the offense is material, the accused may be convicted only if the State’s proof corresponds to the date alleged.” Ledesma v. State, 251 Ga. 885 (311 SE2d 427). Accordingly, the evidence presented failed to prove a violation of OCGA § 16-11-39 (4), because this section is violated “whenever one repeatedly places telephone calls to another person with the specific intent described in the statute.” Harris v. State, 190 Ga. App. 805 (380 SE2d 345).

Therefore, having reviewed the evidence in the light most favorable to the verdict, we nevertheless must conclude that no rational trier of fact could have found the defendant guilty of the offense for which she was convicted beyond a reasonable doubt. See Jackson v. Virginia, supra. Under the circumstances, the conviction cannot stand.

Judgment reversed.

Andrews, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

The court has adopted a policy of combing the record in criminal appeals which have not been pursued, rather than dismissing them, as is done in other cases. Then, instead of appointing counsel to represent the appellant in such cases, or even inquiring whether appellant is entitled to appointed counsel, the court undertakes to represent the appellant directly and then decides the case on at least the general grounds. This requires the State, as the opposite party, to file a responsive brief without even an enumeration of error to address. I disagree with this policy, as it casts the court in the additional role of advocate, which is not assigned to it, and it gives the appellant who takes no action an advantage which the appeal-pursuing appellant does not have. See Lee v. State, 203 Ga. App. 487, 489 (417 SE2d 426) (1992) (dissent); Allen v. State, 192 Ga. App. 320, 322 (385 SE2d 29) (1989) (dissent); Golden v. State, 190 Ga. App. 477, 480 (379 SE2d 230) (1989) (dissent); Conyers v. State, 183 Ga. App. 591, 592 (359 SE2d 454) (1987) (dissent); DeBroux v. State, 176 Ga. App. 81, 82 (335 SE2d 170) (1985) (dissent).

Decided November 24, 1992.

Susan I. Sarver, pro se.

Ralph T. Bowden, Jr., Solicitor, Andrew T. Rogers, Cliff Howard, Assistant Solicitors, for appellee.

If it is an attempt to avoid a habeas corpus action in the future, it very well may not do so, as it does not necessarily foreclose grounds not created by the court and ruled on in the direct appeal.

Appellant in this case has not only failed to pursue her appeal; she has also failed to obey court orders regarding it.

After the appeal was docketed in this court and appellant had gained an extension of time, she failed to file an enumeration of error or brief within the time extended by order. Consequently, the court ordered appellant, under Rules 14 (a), 23 and 27 (b), to file such by May 6. The order indicated that failure to do this, absent good cause, “may result in dismissal of the appeal and may subject the offender to contempt.”

Another extension was sought and given, to May 13, and still no required enumerations or brief were filed. Appellee sought dismissal, but the court denied it. Appellant was not required to show cause why she should not be held in contempt and/or why the appeal should not be dismissed.

Months later, on August 18, the court issued an order identifying three issues it “requested” the parties to brief within 20 days. Only the appellee responded. Thus it appears that, at the least, appellant abandoned the appeal.

Nevertheless, I am bound by the court’s policy and, upon the review of the record which the court undertakes, I agree that the evidence does not show “repeated” harassing phone calls on April 18 but rather only that the repeat call in this venue was on April 18, the date alleged in the accusation.

       Appellant expressly waived the services of the public defender below.


author: Cooper, Judge.

text:
    A92A0800.
    In re GOUGE.
    (425 SE2d 882)
   Cooper, Judge.

Appellant, an attorney, appeals the judgment of contempt entered against him for inviting opposing counsel to “take it outside.” On appeal, he contends that the evidence was insufficient to support the trial court’s finding of contempt and that the trial court should have held an evidentiary hearing prior to imposing punishment.

At the trial of appellant’s client for driving under the influence and other vehicular offenses, the State began to show the jury a videotape of the client’s arrest. Although such tapes are admissible with proper foundation, this particular tape contained a reference by appellant’s client to a prior DUI arrest which the trial court had tentatively ruled should not be discussed. When this portion of the tape was reached but before the jury heard the reference to the prior arrest, appellant objected, and the tape was stopped. Appellant also moved for a mistrial, arguing that the State was going into evidence that “a first-year law student should know would not be gone into” and had engaged in “clear-cut misconduct.” While addressing the merits of the motion, counsel for the State asserted that appellant’s personal criticisms were improper and that appellant’s comments should be addressed to the court rather than to opposing counsel. The court agreed: “THE COURT (to appellant): Well, I’ll note that, while you were making your comments, you were glaring somewhat at [the State attorney], so I think his response is well taken. I believe that there was a legitimate issue that was arguable on both sides. I’m inclined to think the objection is good. [But] I think the State was within its rights to argue it’s admissible on the grounds stated, so the motion [for mistrial] is denied. And, Mr. Gouge, such comments as ‘first-year law student,’ and that sort of thing, [are] somewhat improper, I believe, and you should be careful to avoid those sort of remarks and interjecting personalities into your arguments — your defense which you are — seems to me wont to do occasionally in your enthusiasm. All right, I’m going to bring the jury back in now. . .

Immediately after receiving this admonition, however, appellant made inappropriate comments to opposing counsel as they walked back to their seats. The jury was once again sent out, and the following colloquy occurred: “COUNSEL FOR STATE: I would like to state for the record what Mr. Gouge just said to me, and I’m not stating it for any other purpose but that it be on the record. He’s been glaring at me throughout this whole trial and has made this personal. It’s not personal to me. I’m a representative of the State trying to present a case. I have nothing against Mr. Gouge nor his client whatsoever. He has glared at me; he has said that I have made mistakes that a first-year law student would not have made, when actually all I was trying to do was present the State’s evidence, which I have a right to do. Then, after the Court told him to quit glaring at me and refrain from making such comments, he looked at me and said, “Do you want to take it outside?” I then approached the Bench and informed the Court that he said that and has made this personal; and, as Mr. Gouge walked away from the Bench, he looked at me and said, “Pussy.” I do not wish to tolerate this and ask that the Court admonish Mr. Gouge.

“THE COURT: All right, Mr. Gouge.
“MR. GOUGE: I said — I told him, you know, we’d take it outside later. He kept glaring at me. The Court had just admonished me about making the remark which, quite frankly, I resented the attempt to do what the Court had told the State not to do. And he kept glaring at me after this happened, you know, and I told him, yeah, I said, ‘If you want to take it outside.’ It’s got no place in the Courtroom, I agree with it. But I said nothing to him of that.
“COUNSEL FOR STATE: He’s invited me out into the street to fight is what he’s done.
“THE COURT: I’ve heard it; I’ve heard it.”

Based on appellant’s admission that he invited opposing counsel outside, the judge immediately found appellant in contempt but waited until the jury was deliberating to impose punishment.

1. Appellant first argues that his admission that he invited opposing counsel, in court and in the presence of the judge, to “take it outside,” was not a sufficient basis for a finding of contempt. “[0]n appeal of a criminal contempt conviction the appropriate standard of appellate review is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Cits.]” In re Irvin, 254 Ga. 251 (2) (328 SE2d 215) (1985). “ ‘Criminal contempt is that which involves some disrespectful or contumacious conduct toward the court.’ [Cits.]” In re Henritze, 181 Ga. App. 560, 562 (353 SE2d 58) (1987). “ ‘Contempt of court has been variously defined; in its broad sense it means disregard for or disobedience of the order or command of the court. . . .’ [Cit.]” In re Bergin, 178 Ga. App. 454, 455 (343 SE2d 743) (1986). Viewing appellant’s admitted comment in the light most favorable to the prosecution, a rational trier of fact could find beyond a reasonable doubt that appellant was being wilfully disrespectful and disobedient to the court when he invited opposing counsel to continue their dispute outside the courtroom despite the court’s ruling, particularly in light of the court’s reprimand and admonition to appellant immediately prior to that invitation. That appellant’s comment was directed toward opposing counsel rather than the judge does not change this conclusion. In Dowdy v. Palmour, 251 Ga. 135 (2) (304 SE2d 52) (1983), the Georgia Supreme Court discussed various ways in which trial courts may respond to and deal with contemptuous acts; and in doing so, the Supreme Court distinguished between contemptuous acts directed toward the judge and contemptuous acts not directed toward the judge, indicating that both can constitute contempt of court. Thus, from Dowdy it would seem that if an in-court statement is wilfully contemptuous of the court and its authority, the fact that the statement is directed toward another party rather than toward the judge does not preclude the statement from providing the basis for a judgment of contempt.

Appellant argues that “[cjommon vulgarity, simple discourtesy, angry emotional outbursts, want of civility or professional demeanor” are insufficient grounds for a finding of contempt unless or until they interfere with the court’s ability to administer justice, citing Johnson & Reaves, “Contempt of Court in Georgia,” 23 Ga. St. B. J. 66 (1986). Appellant’s comment in this case went beyond vulgarity or discourtesy to actually challenge the authority of the court, however. Indeed, it is difficult to conceive of a notion more disruptive of the ability of the court — in its broad, institutional sense — to administer justice than the notion that parties can or should continue their disputes through fighting outside the courtroom if they are not happy with the court’s ruling. The court’s power to respond to such challenges to its authority “ ‘ “ ‘is absolutely essential to the protection of the courts in the discharge of their functions. Without it, judicial tribunals would be at the mercy of the disorderly and violent, who respect neither the laws enacted for the vindication of public and private rights, nor the officers charged with the duty of administering them.’ ” [Cit.]’ [Cit.]” In re Spruell, 200 Ga. App. 218, 227 (2) (407 SE2d 451) (1991).

We therefore hold that the trial court did not err in finding appellant in contempt of court based on his admitted comment to opposing counsel.

2. Appellant also contends that the trial court should have held an evidentiary hearing before imposing punishment for contempt. “Where the announcement of punishment is delayed [after the court declares conduct committed in its presence to be contemptuous], and where the contumacious conduct was not directed toward the judge and where the judge did not react to the contumacious conduct in such manner as to become involved in the controversy, the judge has the power to hold a contempt hearing at the conclusion of the trial and, after giving the attorney reasonable notice of the specific charges and opportunity to be heard, to impose punishment. . . . Where the announcement of punishment is delayed, and where the contumacious conduct was directed toward the judge or where the judge reacted to the contumacious conduct in such manner as to become involved in the controversy, the judge may give the attorney notice of specific charges, but the hearing, including the attorney’s opportunity to be heard, must be conducted by another judge.” Dowdy, supra at 142. Contrary to appellant’s argument, Dowdy does not hold that an evidentiary hearing must be held prior to punishment whenever announcement of punishment is delayed. While it does hold that the party adjudged in contempt must be given the opportunity to be heard prior to announcement of punishment, the nature of the hearing required will depend on the circumstances. In this case, the judge could impose punishment himself because he was not the direct object of the contemptuous conduct and did not become involved in the controversy. The judge gave appellant the opportunity to be heard prior to imposing punishment, but determined that an evidentiary hearing was not necessary. Under the circumstances of this case, we find no error in this procedure.

Decided September 25, 1992 —

Reconsideration denied November 25, 1992

Millard G. Gouge, pro se.

Kupferman & Ransopher, Drew Findling, for appellant.

Jack O. Partain III, District Attorney, David W. McLeod, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A92A0849.
    CHAPMAN v. THE STATE.
    (426 SE2d 9)
   Birdsong, Presiding Judge.

Jay Chapman was charged with speeding and driving with a suspended license. He pled not guilty. The Clarke County State Court Solicitor entered a plea agreement whereby appellant would plead guilty only to the charge of speeding. This agreement apparently was based on the prosecutor’s apprehension that appellant had no prior notice that his license was suspended. A hearing was set for January 10, 1991, at which appellant would change his plea from not guilty to both charges, to guilty to the charge of speeding.

Prior to that hearing date, the prosecutor left office. The newly-elected prosecutor determined appellant did have notice that his license had been suspended because four months prior to the incident giving rise to these charges, appellant pled nolo contendere in Elbert County to a charge of driving with a suspended license. The Clarke County prosecutor therefore determined he could not go along with his predecessor’s agreement, and on January 4 or 7, 1991, his office so notified appellant’s attorney.

Appellant’s attorney contends he requested the judge’s office to take the change-of-plea hearing off the calendar for January 10, 1991, because of the prosecutor’s decision not to nolle prosequi the suspended license charge. The transcript of proceedings on January 10 shows that the court’s secretary stated appellant’s attorney said “he was going to file some motions, and he . . . wasn’t going to approve the change of plea today.” The judge replied, “Well, I planned to accept it. . . . Who’s taken it off [the calendar]? I have not taken this case off the calendar. ... I want to know who gave anybody permission to take it off the calendar. Put it on the trial calendar.” The proceedings were then concluded.

As the result of motions and proceedings filed by appellant’s counsel, including a motion to recuse and a declaratory judgment action urging the superior court to exercise its equity powers to enforce the plea agreement, the trial judge filed affidavits stating that a change of plea hearing had been scheduled for January 10, 1991, and at the convening of this hearing the judge announced on the record his intention to accept the plea bargain but was informed that neither appellant nor his attorney was present at the hearing. Held:

The binding nature of plea agreements on successive prosecutors is settled in this state. Rowland v. State, 257 Ga. 25, 26 (354 SE2d 145); State v. Hanson, 249 Ga. 739 (295 SE2d 297); Thomas v. State, 248 Ga. 247 (282 SE2d 316); Howell v. State, 163 Ga. App. 445, 446 (295 SE2d 329); Daniel, Ga. Criminal Trial Practice, § 15-1. But under the circumstances of this case, in order to enforce the plea agreement, it was essential that the defendant attend the hearing at which such agreement was intended to be enforced. In this case, appellant’s decision not to attend such hearing deprived himself of the opportunity to enforce it.

We will accept the trial judge’s sworn statement that acceptance of the plea agreement remained in his discretion (see State v. Hanson, supra at 746), and the transcript supports his statement that he intended to accept the plea agreement. In any case, it is not necessary to conclude or speculate that the trial court would have enforced the agreement, because whatever the case may be, the defendant cannot enforce the agreement if he does not attend proceedings at which the agreement was scheduled to be accepted.

Appellant’s failure to attend this state court hearing so as to enforce the agreement is not excused by his beseeching the superior court to order compliance with the plea agreement; this was not the proper procedure, at least not unless the defendant had attended the change of plea hearing to enforce the agreement.

The dissent proposes that the trial court did not consider appellant’s failure to appear at the plea hearing to be a waiver of his right to enforce the plea bargain, because the trial court allowed him to reserve the right to appeal the issue. This is incorrect on the record. The trial judge’s own affidavits confirm that appellant’s failure to show up at the plea hearing was the basis for the court’s refusal to enforce the plea bargain, for if appellant had appeared, the trial court intended to enforce the plea bargain. The dissent also suggests that by allowing a party to reserve the right to appeal an adverse ruling, the trial court is signaling a belief that its ruling was wrong. This is illogical and cannot be allowed to control appellate review. Further, the dissent proposes we should not reach down and impose a waiver of the very issue which the defendant has all along sought to litigate; but this illogically proposes that whenever a party wishes to litigate a matter he may choose not to appear at the very proceedings where the matter would properly be litigated and where his remedy was directly available, and instead may pursue other inappropriate remedies in inappropriate proceedings, thus conceivably litigating the matter forever.

Moreover, we are unable to find appellant suffered any detrimental reliance on this agreement so as to justify enforcing it. The disappointment naturally attendant on being prosecuted for the crime, and the litigation he generated in an attempt to force compliance with the agreement not to prosecute are generally not the sort of “detrimental reliance” or “prejudice” which justifies enforcing the plea agreement. State v. Hanson, supra at 745; see Rowland, supra. Moreover, in view of his failure to appear at the hearing at which he might have enforced it, he is deemed to have waived any right to claim reliance on the agreement.

Judgment affirmed.

McMurray, P. J., Pope and Cooper, JJ., concur. Sognier, C. J., Carley, P. J., Andrews and Johnson, JJ., concur in judgment only. Beasley, J., dissents.

Beasley, Judge,

dissenting.

Defendant did not waive the right to pursue enforcement of the plea agreement by failing to appear on January 10, and neither the parties nor the trial court considered what transpired to be a waiver. If this were not so, the trial court would not have expressly approved of defendant’s reserving the right to appeal the issue of enforcement, when it accepted his second guilty plea on October 17. Waiver was not an issue.

The negotiated plea at issue had been set for completion on January 10. Just before that date, the new solicitor informed defendant’s counsel that he would not abide by it because of new information. When the case was called on January 10, the new solicitor explained that he would not oppose a continuance if defendant sought it, and stated: “But apparently he wasn’t able to do that. So —” The judge’s secretary interrupted and said: “He (defendant’s counsel) called our office and I told him I would take it off the calendar —” The court asked why and the secretary responded that “He was going to file some motions, and he said he wasn’t going to approve the change of plea today.” The court said it (the judge) had not taken the case off the calendar and asked who gave anyone permission to take it off. Without waiting for reply the court said: “Put it on the trial calendar” and the proceedings in this case were concluded for that day.

By court order, the negotiated plea was then set for June 4 for acceptance or, in the event the court rejected it, for trial. When that time arrived, defendant’s petition for declaratory judgment, seeking a ruling that the plea agreement was enforceable, was pending in superior court. As a consequence, the proceeding set for June 4 did not occur.

On July 12 the superior court dismissed the petition on the basis that the state court was competent to decide the enforceability issue in the criminal action and, if defendant was dissatisfied with the state court’s ruling, he could appeal. In its order, the superior court recited the facts, including that when the new solicitor told defendant’s counsel he would not abide by the plea agreement, counsel “stated that he would request a continuance for the change of plea and possibly seek a declaratory judgment.” The court went on: “Later, [defendant’s counsel] did call the State Court judge’s office and told a representative that he would be seeking a declaratory judgment and requested that the change of plea be taken off the calendar until the matter was resolved.” As the secretary told the state court on January 10, she took it off, albeit apparently without the court’s permission. In any event, defendant was not faulted by the trial court for relying on her word. This court should not reach down and impose the severe sanction of waiver of the very issue which defendant has all along sought to litigate.

The state court proceeding not having transpired on June 4, the court set it for October 14 after the superior court had dismissed the declaratory judgment action. It expressly noted that “[defendant . . . has expressed a desire to enter a negotiated plea” and that the case was “now ripe for resolution by either a negotiated plea, a non-negotiated plea, or trial.” It did not regard the negotiated plea as having been eliminated by defendant’s non-appearance on January 10.

The plea was insisted on by defendant at the October 14 proceeding, defendant’s counsel stating that “our position is maintained consistently that a deal is a deal and the State is bound by a deal that a predecessor in office has made.” He pointed out that the refusal to honor the agreement had kept defendant’s license from him for a longer period and required his seeking relief in superior court. The state gave several reasons for rejecting the agreement, none of which involved defendant’s absence on January 10.

Decided November 6, 1992 —

Reconsideration denied November 25, 1992

L. Scott McLarty, for appellant.

Kenneth W. Mauldin, Solicitor, for appellee.

The court concluded that the state was not bound because of new information it received regarding the charge which it had agreed to nolle prosequi, and defendant sought the court’s permission to pursue an interlocutory appeal. The court was also uncertain that it had the power to compel acceptance by the state. The court refused to certify an interlocutory appeal. After further discussion with the solicitor, defendant pleaded guilty to the charges, including the charge on which a nolle prosequi was to have been entered and to which charge he had offered the agreement as a bar. However, with the court’s approval, he reserved the right to appeal the issue of the enforceability of the original plea agreement.

The appeal was perfected, and the issue is before us. The majority has noted the binding nature of plea agreements on the state. The judgment should be reversed and the case remanded for the trial court to exercise its discretion to consent to the nolle prosequi on the one charge or not (OCGA § 17-8-3) and, if it consents, to either accept or reject the plea to the other charge agreed upon, on its merits. State v. Hanson, 249 Ga. 739 (295 SE2d 297) (1982).


author: McMurray, Presiding Judge. Cooper, Judge,

text:
    A92A1000.
    SALMON v. THE STATE.
    (426 SE2d 160)
   McMurray, Presiding Judge.

Following a jury trial, defendant was convicted of possession of cocaine and obstruction of an officer (a misdemeanor). He had defended the case solely on the ground of entrapment. This appeal followed. Held:

1. Defendant was arrested in a reverse sting operation in which he was set up by his supplier, Judy McCord. On cross-examination, Donnie Canada, a police officer on special assignment with the Rome/ Floyd County Metro Task Force testified that he did not recall telling McCord that she could plead first offender status and receive probation if she cooperated with the State. Defendant sought to impeach Canada with a tape recording of a conversation that Canada had with McCord on November 8, 1991. The conversation was telephonic: Canada used a cellular telephone in his automobile; McCord used a regular telephone. Defendant recorded the conversation using a radio scanner. In the midst of the conversation, Canada told McCord that she “can plead first offender status.” The trial court would not permit defendant to impeach Canada with a transcript of the conversation, ruling that the conversation was recorded in violation of OCGA § 16-11-62 and was, therefore, inadmissible. OCGA § 16-11-67. Defendant enumerates error upon the trial court’s ruling.

OCGA § 16-11-62 provides, in part: “It shall be unlawful for: ... (4) Any person intentionally and secretly to intercept by the use of any device, instrument or apparatus the contents of a message sent by telephone, telegraph, letter, or by any other means of private communication. ...” (Emphasis supplied.) Does this Code section apply to cellular telephones?

“ ‘A cardinal rule of statutory construction is that courts must look to the purpose and intent of the legislature and construe statutes so as to implement that intent.’ Enfinger v. Intl. Indem. Co., 253 Ga. 185 (317 SE2d 816) (1984); Wilson v. Bd. of Regents, 246 Ga. 649, 650 (272 SE2d 496) (1980). OCGA § 16-11-62, formerly Code Ann. § 26-2002, was enacted in 1967. Former Code Ann. § 26-2001, Ga. L. 1967, pp. 844, 845, states the purpose of Code Ch. 26-20, relating to the offenses of ‘peeping tom’ and eavesdropping. ‘It is the public policy of this State and the purpose and intent of this Chapter to protect the citizens of this State from invasions upon their privacy. This Chapter shall be construed in light of this expressed policy and purpose. The employment of devices which would permit the clandestine overhearing, recording or transmitting of conversations or observing of activities which occur in a private place has come to be a threat to an individual’s right of privacy and, therefore, should be prohibited. It is further the purpose of this Chapter to provide to authorized law enforcement officers modern methods of crime detection and prevention under strict procedures and safeguards.’ ” Ransom v. Ransom, 253 Ga. 656, 657 (1), 658 (324 SE2d 437).

Given the language of OCGA § 16-11-62 (4) and the legislature’s stated intention that the statute is to protect persons from invasions upon their privacy, we think it is clear that the legislature did not intend to prohibit the interception of a cellular telephone conversation. After all, unlike line telephone communications, cellular telephone communications are not private. Why? Because cellular telephones transmit “FM” radio waves for anyone to hear. Thus, cellular telephone users have no justifiable expectation of privacy.

Our holding is in conformance with the vast majority of jurisdictions. The “courts addressing the issue of expectation of privacy in a conversation on a telephone which transmits by radio waves have overwhelmingly held there is no such expectation of privacy. Tyler v. Berodt (8th Cir. 1989), 877 F.2d 705; United States v. Hall (9th Cir. 1973), 488 F.2d 193; United States v. Hoffa (7th Cir. 1970), 436 F.2d 1243; Edwards v. Bardwell (M.D.La. 1986), 632 F.Supp. 584, aff’d mem. (5th Cir. 1986), 808 F.2d 54; State v. Smith (1989), 149 Wis.2d 89, 438 N.W.2d 571; State v. Howard (1984), 235 Kan. 236, 679 P.2d 197; People v. Fata (1988), 139 Misc.2d 979, 529 N.Y.S.2d 683.” People v. Wilson, 554 NE2d 545, 552 (Ill. App. 1 Dist. 1990).

Defendant did not violate OCGA § 16-11-62 (4) when he intercepted the cellular telephone conversation between Officer Canada and Judy McCord. It follows that the trial court erred in failing to permit defendant to cross-examine Officer Canada with regard to his November 8, 1991, cellular telephone conversation.

2. A November 11, 1991, telephone conversation between Rome/ Floyd County Task Force Officer Terry Davis and one Lisa Tuck was recorded by Tuck. The officer was involved in the reverse sting operation which led to the arrest of defendant. Tuck was arrested on a drug charge in an unrelated case.

In the telephone conversation between Officer Davis and Tuck, the officer suggested that Tuck could avoid being prosecuted if she would “go out and seduce someone.” At trial, defense counsel asked Officer Davis if she considered it improper to entice someone to buy drugs. The officer said she thought it was improper and added that she did not operate that way.

Defense counsel attempted to impeach the officer with the statement contained in her telephone conversation with Tuck. The trial court refused to permit defense counsel to question the officer about the recorded conversation and defendant enumerates error upon that ruling.

“ ‘A witness may be impeached by disproving the facts testified to by him.’ Code Ann. § 38-1802 [OCGA § 24-9-82]. However, while a witness may be impeached on a collateral issue which is indirectly material to the issue in the case (Glo-Ann Plastic Industries, Inc. v. Peak Textiles, Inc., 134 Ga. App. 924 (4) (216 SE2d 715)), a witness may not be impeached because of a discrepancy as to a wholly immaterial matter. Mann v. State, 124 Ga. 760 (4) (53 SE 324) (1905).” Gilbert v. State, 159 Ga. App. 326, 327 (2) (283 SE2d 361). Was the discrepancy indirectly material to the issue in the case or a wholly immaterial matter?

We are inclined to the view that the discrepancy was indirectly material to the issue of defendant’s guilt or innocence. Compare Kennedy v. State, 9 Ga. App. 219 (1) (70 SE 986) with Fountain v. State, 7 Ga. App. 559 (1) (67 SE 218). Defendant’s sole defense was entrapment. We think the testimony of Officer Davis with regard to methods used to lure and entice criminal defendants has a bearing, albeit indirect, on defendant’s entrapment defense. The trial court erred in ruling otherwise.

3. The evidence was sufficient to enable any rational trier of fact to find that defendant was not entrapped beyond a reasonable doubt. The trial court did not err in denying defendant’s motion for a directed verdict of acquittal. See State v. Royal, 247 Ga. 309 (1) (275 SE2d 646). However, in view of our holding in Divisions 1 and 2, defendant must be afforded a new trial.

Judgment reversed.

Sognier, C. J., concurs. Cooper, J., concurs

specially.

Cooper, Judge,

concurring specially.

Although I agree with Division 2 of the majority opinion which reverses the judgment below, I must respectfully disagree as to Division 1 as I find that appellant violated OCGA § 16-11-62 (4) when he intercepted the conversation between Officer Canada and McCord. While it is true that the expectation of privacy analysis adopted by the majority has been applied in cases involving the federal wiretap statute and in similar contexts in other states, the issue in this case is not whether the interception of cellular phone conversations violates the U. S. or Georgia Constitutions, the federal statute, or the statutes of other states modeled after the federal statute but whether it offends the Georgia statute. Unlike the federal statute prohibiting the wilful interception and disclosure of wire, oral and electronic communication, which defines oral communication as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation” (18 USC § 2510 (2)) and which specifically excludes “the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit” (18 USC § 2510 (12) (A)), OCGA § 16-11-62 (4) simply prohibits any intentional and secret interception “by the use of any device, instrument, or apparatus the contents of a message sent by telephone, telegraph, letter, or by any other means of private communication.” The cellular telephone is not a new invention. The 1986 overhaul of the federal wiretap statute included certain electronic communication for the first time and specifically excluded cordless telephone communication. In the ensuing years, the Georgia legislature has not seen fit to qualify the term “telephone” to distinguish telephonic communication involving a wire or cable connection between callers and telephonic communication transmitted by radio waves. Therefore, application of the clear and unambiguous language of the Georgia statute to the facts of this case does not require the expectation of privacy analysis. “[A] state law must meet the minimum standards of [federal law] in protecting privacy but may impose more stringent requirements. . . .” Ellis v. State, 256 Ga. 751, 754 (2) (353 SE2d 19) (1987). In my view, the Georgia statute is proof that, in furtherance of its policy, the legislature intended to set forth more stringent requirements involving wiretapping and eavesdropping. See, e.g., Ellis, supra.

Decided September 29, 1992 —

Reconsideration denied November 25, 1992

Cook & Palmour, Bobby Lee Cook, L. Branch Connelly, for appellant.

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Tambra P. Colston, Assistant District Attorneys, for appellee.

Moreover, OCGA § 16-11-62 (4) prohibits the intentional and secret interception “by the use of any device, instrument or apparatus. ...” A “device” is “an instrument or apparatus used for overhearing, recording, intercepting, or transmitting sounds . . . which involves in its operation electricity, electronics, infrared, laser or similar beams. . . .” OCGA § 16-11-60 (1). This definition is sufficiently broad to include a radio scanner, and even though the conversation was transmitted in part over FM radio waves, because McCord was using a conventional telephone, the secret use of the device was strictly prohibited. That prohibition is not to be ignored despite the widespread availability of radio scanners in the absence of clear direction to the contrary by the General Assembly. Accordingly, appellant’s interception of the conversation was illegal, and the trial court did not err in refusing to allow appellant to impeach Officer Canada with a transcript of the conversation. OCGA § 16-11-67.


text:
    A92A1004.
    CIRCLE H DEVELOPMENT, INC. et al. v. CITY OF WOODSTOCK.
    (425 SE2d 891)
   Cooper, Judge.

In the 1980s appellants developed an industrial park in the City of Woodstock (hereinafter “the City”), dividing the park into parcels and selling them. Appellants as developers provided the necessary infrastructure for the park, including an eight-inch water pipe. In late 1985, when only a few parcels had been sold, appellants’ largest purchaser informed appellants and the City that water flow to the park was not sufficient for its needs. City engineers came up with a proposed solution involving the installation of a 12-inch water pipe. The City could do the actual work but would not finance the upgrade. The purchaser refused to pay for the project, as did appellants. Thus, it was proposed that a community improvement district (“CID”) be created.

A CID is a device that allows local governments to place the cost of infrastructure improvements on businesses that benefit from those improvements. It is created by the General Assembly through local legislation, conditioned on the consent of the local government as well as a majority of landowners within the CID. The local legislation generally designates the local government as the administrative body for the CID. In its capacity as the administrative body of the CID, the local government is able to incur debt without a voter referendum — something it could not do as a local government per se — because the debt is an obligation not of the local government but of the CID alone, supported by the CID’s power to levy taxes on nonresidential real property within the district. See generally Ga. Const. 1983, Art. IX, Sec. VII; see also Monacell, “Community Improvement Districts As a Tool for Infrastructure Financing,” 27 Ga. St. B. J. 203 (1991).

The plan in this case was to finance the water pipe upgrade by setting up a CID encompassing the park and then taxing landowners within the district. Because it would take some time to realize the monies from this plan and funds were needed to pay for the water pipe immediately, appellants borrowed the needed funds from the bank, with the understanding that the loan would be paid back over a five-year period out of proceeds of CID taxes. This arrangement was formalized in a three-way agreement between appellants, the City as administrative body of the CID and a bank, dated January 30, 1987 (hereinafter referred to as the “Agreement”). Appellants and the bank received an opinion letter from a city attorney stating that the CID had been properly created and that the Agreement would be binding. The CID had not been properly created, however. Although both the City Council and the necessary landowners consented to creation of the CID, the General Assembly never passed local legislation creating it. None of the parties or their attorneys checked to verify that local legislation had been passed; so the Agreement was signed, the loan was made and the project was completed with all parties believing the CID was in place. When the first payment became due in the winter of 1987-1988, the city manager realized no taxes had been collected from the CID. Assuming he simply needed to find out the proper means to assess the taxes and send out the bills, he paid the bill out of the general water fund, with the expectation that the general fund would be reimbursed when the CID taxes started coming in. He then contacted a city attorney to find out how to implement the CID tax plan and discovered that no CID had been created. When the second payment became due, the City determined it had neither the obligation nor the authority to pay it. The bank sued appellants on the note and personal guaranty which appellants had executed to obtain funds for the water-pipe project, and appellants brought this third-party action against the City for recovery of the loan amount. From the trial court’s grant of summary judgment for the City, appellants appeal.

1. In their original third-party complaint, appellants argued that the City was liable for appellant’s indebtedness to the bank based on the Agreement. The City signed the Agreement in its capacity as the administrative body of the CID, however, and could not have signed it as the City; an agreement by the City as City to incur debt without voter referendum would have been ultra vires and thus null and void. See Ga. Const. 1983, Art. IX, Sec. V, Par. I (a). Because the CID was never created and the City was never designated as its administrative body, the City could not have been a party to and thus cannot be liable for breach of the Agreement.

2. Although the argument discussed in Division 1 was the only one presented by appellants’ original complaint, at the hearing on the City’s motion for summary judgment appellants informed the court and the City that they intended to amend their complaint to include additional claims for breach of an alleged pre-1987 promise by the City to create a CID, unjust enrichment and fraudulent misrepresentation. Because appellants had not amended their complaint to include these claims when the City filed its motion for summary judgment and the City did not later amend its motion for summary judgment to explicitly include the added claims, appellants argue that the trial court’s order granting summary judgment did not address those claims and only disposed of the claim contained in the original third-party complaint. Where pleadings are amended after a summary judgment motion has been heard but before it has been decided, however, the trial court should consider the amendment in ruling on the motion. Rushing v. Ellis, 124 Ga. App. 621 (1) (184 SE2d 667) (1971). Where “there is nothing in the record to indicate that the trial court failed to consider [appellants’] amendment before ruling on appellees’ motion for summary judgment,” we assume the amendment was properly considered. Dutton v. Dykes, 159 Ga. App. 48, 49 (1) (283 SE2d 28) (1981). Here, appellants’ argument at the hearing on the motion for summary judgment focused almost entirely on the claims contained in the amended pleadings, and the parties had the opportunity to brief the issues presented by the amendment. Moreover, the trial court’s order granting summary judgment refers to pre1987 correspondence between the parties and to appellants’ lack of diligence — matters that are relevant only to the amended claims. We therefore conclude that the trial court’s order granted summary judgment on all of appellants’ claims and all those claims are properly before us.

3. Appellants contend that if the City is not liable for breach of the Agreement because of the nonexistence of the CID, it is liable for breach of an earlier agreement to create a CID based on: (1) a December 1985 letter from appellants to the mayor in which appellants agree to loan funds for the pipe, “contingent upon the Community Improvement District being created”; (2) a January 1986 resolution in which the mayor and city council “consent to the creation of a Community Improvement District”; (3) an April 1986 letter from the city manager to appellants requesting a letter of landowner consent that “we need from you to create the Community Improvement District”; and (4) an October 1986 letter from the new city manager to appellants stating that “the City of Woodstock has set up a Community Improvement District.” Appellants’ contention that these documents add up to a contractual agreement to create a CID fails for several reasons. First, “ ‘[a] complete and binding contract may be made by means of an epistolary correspondence, but this result is not accomplished until there has been a definite offer by one of the parties to the correspondence, and an unequivocal acceptance of it by the other without condition or variance. . . .’ [Cit.]” Gray v. Aiken, 205 Ga. 649, 653 (2) (54 SE2d 587) (1949). The references to the creation and existence of the CID in the cited correspondence did not contain such an offer and acceptance and thus did not create a binding contract. Second, the City’s charter provides that a contract will not bind the City unless it is reduced to writing and approved by the city council. No binding contract could have been created by means of the mayor’s and city manager’s correspondence, and we cannot conclude that a resolution of the council consenting to the creation of a CID somehow constitutes or ratifies a purported agreement to create a CID or otherwise replaces the required written contract approved by the council. Lastly, and perhaps most importantly, an agreement by the City to create a CID would — like an agreement to incur debt without a voter referendum — be ultra vires because under our Constitution, only the General Assembly may create a CID unless it delegates that power to a local government, which it did not do in this case. See Ga. Const. 1983, Art. IX, Sec. VII, Par. I. Thus, the City cannot be liable for breach of a purported pre-1987 agreement to create a CID.

4. Appellants alternatively argue that the City is liable because a contract should be implied in law lest the City be unjustly enriched. “Whenever a municipality . . . undertakes to contract a debt in violation of [the constitutional provision limiting local governments’ power to incur debt] such contract is prohibited, and is void and unenforceable under said provision of the constitution. Under this stringent provision, when property is received under such contract the law does not raise an implied undertaking on the part of such municipality ... to pay therefor, as the enforcement of such implied undertaking would enable the city and the purchaser to evade this constitutional provision and would in effect render the same nugatory and void. [Cits.]” (Emphasis supplied.) Board of Lights &c. v. Niller, 155 Ga. 296, 303-304 (6) (116 SE 835) (1923); see also Decatur County v. Roberts, 159 Ga. 528 (2) (126 SE 460) (1925) (implied contract will not arise where express contract by local government unauthorized by law). The holding of Butts County v. Jackson Banking Co., 129 Ga. 801 (60 SE 149) (1908), cited by appellants for the proposition that an action in quasi-contract may be maintained by one who has loaned money to a local government, is limited to situations where monies are loaned pursuant to an unauthorized agreement but used to discharged legally incurred liabilities for current expenses. See Roberts, supra. Appellants’ reliance on Gainesville v. Edwards, 112 Ga. App. 672 (145 SE2d 715) (1965), is also misplaced; for in that case, in which we allowed a quasi-contract recovery for services rendered a city in the absence of a binding contract, the alleged agreement was one the city was authorized to make but simply had not made with the requisite formalities. In the instant case, the City purportedly made agreements it was unauthorized to make, and the monies loaned pursuant to the purported agreements were not used to discharge legally incurred liabilities for current expenses. Accordingly, a quasi-contract recovery for appellants is not available.

Decided November 4, 1992 —

Reconsideration denied November 25, 1992

Barnes, Browning, Tanksley & Casurella, Benny C. Priest, for appellants.

5. Appellants also claim the City engaged in fraudulent misrepresentation, pointing to an October 1986 letter from the city manager stating that the City had set up a CID and a December 1986 letter from the city attorney stating that in his opinion the City had properly created a CID. A misrepresentation is only actionable if it is made wilfully and with the intent to deceive. OCGA § 51-6-2. In this case it is undisputed that neither the city attorney, city manager nor anyone else knew the CID had not been created until 1988, well after the relevant misrepresentations were made, and there is no evidence in the record of any intent on the part of the City to deceive appellants. Moreover, that the General Assembly had not passed local legislation creating the CID was an open, public fact available to appellants if they had exercised ordinary diligence. See Hubert v. Beale Roofing, 158 Ga. App. 145 (279 SE2d 336) (1981). We therefore conclude summary judgment was properly granted on this claim also.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.

Drew, Eckl & Farnham, B. Holland Pritchard, Landrum & Landrum, Phillip M. Landrum, Jr., Susan Landrum, Moore & Rogers, Robert D. Ingram, for appellee.


text:
    A92A1062.
    GREEN v. STATE FARM INSURANCE COMPANIES.
    (426 SE2d 3)
   Cooper, Judge.

Appellant, administratrix of the estate of a decedent who was hit by a truck while crossing a street on foot, appeals from the trial court’s grant of summary judgment to appellee and the denial of her motion for partial summary judgment. There are no facts in dispute, and the pivotal legal issue is whether OCGA § 33-34-3 (a) (2), which requires that no-fault benefits be provided to non-resident motorists involved in motor vehicle accidents in Georgia and insured by insurers doing business in Georgia, covers “motorists” who are on foot rather than in their cars at the time of the accident.

The decedent, a resident of Alabama, was insured by appellee. While driving along Peachtree Industrial Boulevard, the decedent stopped to make a phone call, and as she recrossed the street on foot after making her call she was hit by a truck and killed. Appellant sought statutory minimum no-fault benefits from appellee pursuant to OCGA § 33-34-1 et seq., the Georgia No-Fault Act. Appellee denied appellant’s claim on the grounds that appellant’s decedent was a pedestrian rather than a “motorist” at the moment she was struck. Appellant filed suit seeking no-fault personal injury protection (PIP) benefits as well as statutory penalties, attorney fees and punitive damages for appellee’s bad faith refusal to pay. Appellee filed a motion for summary judgment and appellant filed a cross-motion for partial summary judgment on the coverage issue only. This appeal follows the grant of appellee’s motion and the denial of appellant’s motion.

1. OCGA § 33-34-3 (a) (2) mandates that insurers doing business in Georgia but issuing policies or contracts to insureds outside Georgia provide at least the statutory minimum no-fault PIP coverage established by § 33-34-4 “with respect to motorists insured under the policies or contracts who are involved in motor vehicle accidents in this state and, notwithstanding any provisions of the policies or contracts to the contrary, all such policies or contracts of insurance shall be deemed to satisfy the minimum requirements of this chapter if a motorist insured under the policies or contracts of insurance is involved in a motor vehicle accident in this state.” (Emphasis supplied.)

Appellant contends that “motorist” as used in OCGA § 33-34-3 (a) (2) does not mean only those individuals actually riding in motor vehicles at the time an accident involving a motor vehicle occurs. We agree. This court has often used the word “motorist” to describe individuals not at that moment in their vehicles. See, e.g., Bosworth v. State, 178 Ga. App. 86 (1) (342 SE2d 22) (1986) (we stated that victim was “hailed by what he thought to be a stranded motorist,” referring to individual standing outside vehicle by side of road); Mowell v. State, 172 Ga. App. 641, 642 (324 SE2d 210) (1984) (we stated that defendant, a “motorist” involved in a dispute between “motorists” on side of road, “ultimately made an attempt to run over the other motorist [who had apparently remained outside his car when defendant returned to his] shortly after the incident”); see also Wiard v. Phoenix Ins. Co., 166 Ga. App. 47 (303 SE2d 161), rev’d, 251 Ga. 698 (310 SE2d 221) (1983) (insurer’s mailing to all insureds in state addressed each insured as “Dear Georgia Motorist”). “Motorist” is defined as “a person who travels by automobile.” Webster’s New Collegiate Dictionary, p. 745 (150th anniv. ed. 1981). Appellant’s decedent was a motorist because she travelled by automobile, and it was as a motorist that she purchased insurance coverage from appellee and came to be in the location where she was struck and killed. The dictionary does not specify “at the moment of travelling” or “while travelling” in defining motorist, and we believe the addition of such a restriction, as appellee suggests, would be contrary to common usage and understanding of the word.

Nor can “motorist” be construed to include only those actually in their cars at the relevant time in light of the purpose of the No-Fault Act. The disputed language in OCGA § 33-34-3 (a) (2) must be viewed against the general framework of protection provided by the interplay of §§ 33-34-3; 33-34-4; and 33-34-7. OCGA § 33-34-4 establishes the statutory minimum amount of no-fault benefits that must be provided for a motor vehicle registered in Georgia. OCGA § 33-34-7 lists specified insured events, including an insured being struck by a motor vehicle while a pedestrian, whose occurrence triggers payment of no-fault benefits. OCGA § 33-34-3 (a) (1) mandates that all insurance policies issued in Georgia “be in accordance with the requirements of this chapter,” and OCGA § 33-34-3 (a) (2) provides that even if policies are not issued in Georgia, insurers doing business in Georgia must provide at least the statutory minimum coverage established in § 33-34-4. One of the purposes of the No-Fault Act is to ensure, to the extent possible, that all victims of automobile accidents in the state are provided with certain minimal insurance coverage. Cannon v. Ga. Farm &c. Ins. Co., 240 Ga. 479 (3) (241 SE2d 238) (1978). The legislature accomplished this by requiring insurers issuing policies in Georgia to provide a minimum level of no-fault benefits, and then by requiring that policies issued outside the state by insurers authorized to do business in the state be deemed to provide that minimum level of no-fault benefits as well if an insured event occurred in Georgia. The insured events which would activate entitlement to no-fault benefits were set forth in § 33-34-7, and these included the striking of an insured, while a pedestrian, by a motor vehicle. We find no logical reason for distinguishing between pedestrian accident victims covered by policies issued in Georgia and those covered by policies issued out of state by insurers authorized to issue policies in Georgia when the legislature did not distinguish between the two groups of insureds with regard to any other insured event, and there is no indication that the legislature intended to do so.

Appellee’s argument that our interpretation renders the legislature’s use of “motorist” in the disputed clause synonymous with “insured” when the legislature could have simply used the word “insured” instead does not convince us otherwise. A look at the disputed language shows, that “motorist” is twice used as a noun immediately followed by the descriptive clause “insured under the policies or contracts.” Thus, if the legislature had used “insured” rather than “motorist” as its synonym, the resulting phrase would have been “an insured under the policies or contracts” — a phrase that is awkward at best. See Doran v. Travelers Indem. Co., 254 Ga. 63, 67 (2) (326 SE2d 221) (1985). In Doran, in the course of concluding that another portion of the No-Fault Act requiring optional additional coverage did not apply to policies issued in other states, the Georgia Supreme Court treats the word “motorist” in § 33-34-3 (a) (2) as synonymous with “insured.”

“The amendment [adding § 33-34-3 (a) (2)] was aimed at insurers authorized to transact or transacting insurance in Georgia. As to this category of insurers, it directed that they should include in policies issued in other states or Canadian provinces a provision ‘which provides at least the minimum coverage required under Section 3 (b) of this Act (OCGA § 33-34-4 (a) (2)) . . .’ if the insured is involved in a motor vehicle accident in Georgia. [Cit.] Section 3 (b) is the basic PIP of $5,000. . . . [0]ut-of-state policies issued to insureds later involved in auto accidents in Georgia by companies transacting or authorized to transact insurance here were affected. The requirement was that such policies provide minimum PIP coverage of $5,000. . . .” (Emphasis supplied and footnote omitted.) Id. at 68. Here, appellant’s decedent was issued a policy in another state and was then involved in a motor vehicle accident in Georgia. Thus, coverage should be provided.

Decided October 19, 1992 —

Reconsideration denied November 25, 1992.

Christopher J. McFadden, for appellant.

Harper, Waldon & Craig, Thomas D. Harper, for appellee.

For these reasons, we conclude that the trial court erred in granting appellee’s motion for summary judgment on the issue of coverage and in denying appellant’s motion for partial summary judgment on the same issue.

2. Appellant also sought statutory penalties, attorney fees and punitive damages based on appellee’s bad faith. However, this court has recently held that, in the absence of a contractual term in the policy providing for bad faith damages, there can be no post-repeal recovery of penalties, attorney fees or punitive damages for an insurers’ bad faith failure to pay under the repealed No-Fault Act. See Terry v. State Farm &c. Ins. Co., 205 Ga. App. 224 (422 SE2d 212) (1992). Although the repeal is not retroactive with respect to coverage, it is retroactive with respect to available remedies. Id. We are therefore compelled to conclude that the portion of the summary judgment denying bad faith damages must be affirmed.

Judgment affirmed in part and reversed in part.

Sognier, C. J., and McMurray, P. J., concur.

       The Georgia Legislature repealed OCGA § 33-34-3, effective October 1, 1991. Because decedent’s policy was issued prior to October 1, 1991, we apply the repealed version of the statute. See Ga. L. 1991, p. 1608, § 3.1.


author: Carley, Presiding Judge.

text:
    A92A1292.
    KHOSRAVI v. AETNA CASUALTY & SURETY COMPANY.
    (425 SE2d 905)
   Carley, Presiding Judge.

Appellee-defendant is appellant-plaintiff’s no-fault carrier. Alleging appellee’s bad faith, appellant brought suit and sought to recover a penalty, punitive damages and attorney’s fees pursuant to former OCGA § 33-34-6. Although an award was made in favor of appellant, she appeals from the judgment entered thereon.

Subsequent to the filing of appellant’s instant appeal, former OCGA § 33-34-6 was repealed. “Accordingly, [appellant] was not, when the repealing act was passed, absolutely entitled to an enforcement of [her] judgment, and the case must be dealt with in this court as one which was pending when the repeal took place. This being so, the case in controlled, in principle, by the decision[s] in [Terry v. State Farm Mut. Auto. Ins. Co., 205 Ga. App. 224 (422 SE2d 212) (1992) and Green v. State Farm Ins. Cos., 206 Ga. App. 478 (426 SE2d 3) (1992)].” The Western Union Telegraph Co. v. Smith, 96 Ga. 569 (23 SE 899) (1895). In Terry, supra, we held that where, as here, there is no “contractual term in the policy providing for bad faith damages, there can be no post-repeal recovery of penalties, attorney^] fees or punitive damages for an insurer's] bad faith failure to pay under the repealed No-Fault Act. [Cit.] Although the repeal is not retroactive with respect to coverage, it is retroactive with respect to available remedies. [Cit.]” Green v. State Farm Ins. Cos., supra at 481 (2). Since the repeal of former OCGA § 33-34-6 has vitiated appellant’s entitlement to any recovery thereunder, it follows that the judgment in the instant case must be affirmed. Appellant is “not entitled to recover at all, and therefore certainly [can] not justly complain of a verdict finding [appellee] liable for but a portion of the amount claimed. . . .” Southern Home Bldg. &c. Assn. v. Butler, 111 Ga. 826 (2) (35 SE 679) (1900).

Decided November 23, 1992.

Johnson & Ward, John C. Dabney, Jr., for appellant.

Arrington & Hollowell, W. Ray Persons, Victoria W. Wuesthoff, Nations, Yates & Freeman, Ronald J. Freeman, for appellee.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A0968.
    EMORY v. DOBSON et al.
    (426 SE2d 50)
   Pope, Judge.

This case arises from an automobile collision involving three vehicles. The plaintiff/appellant Crystal Emory brought this personal injury action alleging that defendant/appellee Tammy Dobson was negligently operating her vehicle at the time of the collision. The case was tried by a jury which returned a verdict for defendants. Plaintiff appeals from that judgment and from the trial court’s denial of her motion for new trial.

Both of plaintiff’s enumerations of error concern whether the trial court erred in excluding opinion evidence of the officer who investigated the collision. Before the investigating officer was called to testify, defendants renewed their motion in limine to prohibit the plaintiff from being allowed to ask the officer about ticketing the defendant for traveling too fast for conditions and determining that she was at fault in the accident. The trial court ruled on the motion and instructed the parties as follows: “You can ask the officer anything he knows from his own knowledge that’s physical evidence: about what he observed, position of the vehicles, you know, what the road conditions were like, perhaps what conversations he had, if any, with the parties, what he observed at the time. But as to his opinions as to the ultimate fact of who was at fault, you won’t be allowed to ask him that, and you won’t be allowed to ask him about any charges that he brought.” (Punctuation omitted.) Plaintiffs counsel then responded: “Your Honor, I understand about not being allowed to ask him about any charges, but the man is — as an expert witness, I think, is — ought to be entitled to render an opinion based upon his investigation of the case, and his training, his experience, the photographs he’s observed, the cars that he’s observed, and everything else. That he can render an opinion that the following car, the last car — Ms. Dobson’s car, was — he can state his opinions as to what he believed caused the accident. Whether one car was stopped before it hit another car. Why he labeled Ms. Dobson’s car vehicle number one and what that means. That is that, in his opinion it was the at fault car.” (Punctuation omitted.) The trial court then further instructed the parties: “Now, this rule is pretty well set, and neither one of you gentlemen should have any problem going by it. And I don’t want the officer to get on the stand and be misled by the questions that you’re giving him. And, you know, I go through this a lot and I don’t usually have any problems with it. You can ask him about what he observed at the time, you know, what time he got the call, what time he responded, what he saw, what he talked to the witnesses about. You can ask him if he qualifies and has enough information to give an opinion as to what happened. You know, one car slid into another car and then pushed that into another car, if that’s what his testimony is going to be. But you cannot go into what his opinion was about fault in the case or what charges he brought, or what the disposition of those charges were. . . .” (Punctuation omitted.)

It is well-settled that in a civil action for damages a plaintiff may not show that charges were brought against a defendant or that the defendant was required to make an appearance in traffic court for a violation of law alleged to have proximately resulted in the plaintiff’s injuries. Townsend v. Brantley, 163 Ga. App. 899 (1) (296 SE2d 186) (1982); Smith v. Goodwin, 103 Ga. App. 248, 249 (3) (119 SE2d 35) (1961). It is also well-settled that “[ejxpert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman.” Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981).

The trial court’s ruling concerning what opinion evidence could be offered by the investigating officer was correct. The record reveals the officer was allowed to testify fully about what he observed at the accident scene and to opine based on that evidence about how the collision occurred. The trial court correctly prohibited the officer from opining concerning which party was at fault in the accident. The conclusions the jury had to draw in this case, who was at fault in the automobile collision and whether that person was operating her vehicle negligently, are conclusions that average jurors should be able to reach for themselves. See Smith v. Fee, 197 Ga. App. 483 (398 SE2d 801) (1990); Felton v. White, 197 Ga. App. 367 (398 SE2d 425) (1990).

Plaintiff posits it was error for the trial court not to allow her to ask the investigating officer the following hypothetical question: “[B]ased upon your investigation and under the circumstances on April [3,] 1989, at the location of the collision, and considering the road surface, the grade of the road, the speed of the cars at . . . approximately forty-five miles per hour, and the traffic conditions at that time, do you have an opinion whether or not approximately two to two and a half car lengths would have been a reasonably safe distance for the vehicle number one to keep behind vehicle number two?” The trial court refused to allow plaintiff to ask whether “two to two and a half car lengths” would be a “reasonably safe distance” but allowed plaintiff to ask “what distance the last car [would] have had to maintain to be able to . . . stop safely with the cars stopping in front of that vehicle.”

The trial court properly sustained the objection to the hypothetical question in the manner it was phrased by plaintiff. Although police officers may give their opinion as to speed or other causal links in a collision, the officer’s opinion may not suggest negligence. Allowing the officer to opine that two to two-and-a-half car lengths was not a reasonably safe distance for defendant to travel behind plaintiff under the circumstances existing at the time of the collision would be tantamount to allowing the officer to testify that the defendant was negligent, which of course is clearly prohibited. See Smith, 197 Ga. App. at 483 (refusing to allow police officer to testify if any action by the defendant contributed to the accident); Felton, 197 Ga. App. at 368 (police officer should be allowed to state conclusion concerning how collision occurred as long as the opinion does not intimate negligence on the part of any party); Cone v. Davis, 66 Ga. App. 229, 234-235 (17 SE2d 849) (1941) (error to ask the investigating officer the following question: “A man driving — is it your opinion or not, a man driving on a curve that close together and at that rate of speed would not be driving in a reckless manner and not in regard to safety?” because the officer’s positive response was tantamount to his opinion the defendant was negligent). Accordingly, we hold plaintiffs contention that the trial court committed reversible error by failing to allow plaintiff to ask the officer the hypothetical question in the original form to be without merit.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.

Decided November 25, 1992.

Louis Levenson & Associates, Louis Levenson, Moss, Clifford, Moss & Rothenberg, Robert A. Moss, for appellant.

Downey, Cleveland, Parker, Williams & Davis, G. Lee Welborn, for appellees.