text:
    A89A1054.
    STEIN v. TRI-CITY HOSPITAL AUTHORITY.
    (384 SE2d 430)
   Deen, Presiding Judge.

At its regular meeting on June 27, 1984, the Board of Trustees of the Tri-City Hospital Authority, d/b/a South Fulton Hospital (hereinafter referred to as the hospital authority or the hospital) unanimously passed the following resolution: “RESOLVED that all Medical/Dental staff at South Fulton Hospital will be required to have $1 million malpractice insurance by August 1, 1985. Staff will be required to provide proof of coverage at appointment or reappointment. Those members of the staff whose reappointment is beyond the August 1, 1985[,] deadline will be required to provide proof of appropriate coverage before that date.” In accordance therewith, the Board of Trustees also amended the bylaws of the hospital authority to reflect the malpractice insurance requirement of its staff appointments.

The primary reasons discussed and considered by the Board of Trustees in deciding to adopt this policy were to protect patients of the hospital from the financial insolvency of a negligent physician; to provide a fund from which patients who were injured by malpractice could recover; to save the hospital money on its own coverage and thereby enable it to maintain a lower cost for care to patients and hospital treatment; to protect other staff physicians and the hospital against liability for the malpractice of an uninsured physician on staff; and to assure that if the hospital were joined in a lawsuit against a staff physician, the physician would be able to contribute to the cost of the defense. The Board also took into account that such a requirement is one of the factors considered by the hospital accreditation commission, and that such a plan was recommended in an independent study undertaken by the hospital as a development and planning strategy. It further determined that since most physicians already had such malpractice coverage or would have little difficulty in obtaining it, the requirement would not add significantly to the qualification process necessary for staff privileges.

Dr. Ignatius J. Stein first became a member of the hospital staff in 1967, and his privileges were periodically renewed thereafter. Some limitations were placed on his privileges in 1975 and 1976, and his breast surgery privileges were suspended in 1979 pending an investigation arising out of a number of complaints and eleven malpractice actions brought against him. Some of Dr. Stein’s privileges were reinstated in 1980 with certain conditions, but upon recommendation of the hospital’s executive committee no breast surgery privilege was allowed. On December 28, 1982, the hospital received a subpoena from the Composite State Board of Medical Examiners for production of the medical records of fourteen different patients treated at the hospital by Dr. Stein. On February 10, 1984, the hospital was notified that pursuant to a consent order of the Composite State Board, Dr. Stein’s medical license was being placed on four-year probation.

Dr. Stein was serving as a staff physician with these limitations at the time the malpractice insurance requirements were enacted, and was duly notified thereof. A letter specifically requesting information concerning his insurance coverage was sent to him on April 4, 1985, and, when no reply was received, again on July 9, 1985. On July 22, 1985, Dr. Stein informed the hospital that his application for the required coverage was pending and requested a 90-day extension of his privileges to “pursue and exhaust all sources of malpractice insurance available.” At its meeting of July 24, 1985, the hospital authority determined that Dr. Stein and one other staff physician had not provided evidence of medical liability insurance coverage as required by the bylaws. Dr. Stein was advised that unless he presented such proof his privileges would expire on July 31, 1985, but after that, upon provision of the requisite evidence, he could request reinstatement and “be processed as an expedited original application, including a request for temporary privileges. ...” Dr. Stein and one other physician failed to provide any malpractice insurance evidence and were removed from the hospital staff on August 1, 1985. Dr. Stein’s hospital privileges had previously been terminated or denied because of a lack of medical malpractice insurance at three other area hospitals, all of which had adopted the requirement before the appellee hospital did.

On August 21, 1985, Dr. Stein applied to the hospital for privileges as a physician’s assistant and was informed that he was ineligible for such a position as he was a doctor of medicine. By letter of January 6, 1986, Dr. Stein requested to appear before the hospital authority. An appearance was denied but he was told he could reapply for privileges once he met the bylaws requirements. A subsequent application for medical privileges submitted on February 25, 1986, without proof of any malpractice insurance coverage, was denied pending receipt of such evidence. Dr. Stein then filed suit against the hospital’s insurance carrier in federal district court, alleging a claim under the Sherman Act including unlawful restraint of trade, monopoly and boycott, and intentional interference with contract. After this complaint was dismissed in part for failure to state a claim, Dr. Stein dismissed the suit without prejudice and filed the instant action in the State Court of Fulton County against the hospital and its insurance carrier. The insurer was dismissed and both parties moved for summary judgment. The trial court granted the hospital’s motion and denied Dr. Stein’s, and he appeals.

Dr. Stein advances several theories which he contends mandate reversal, arguing that the hospital “violated the dictates of OCGA § 31-7-7 (a) when it delegated to its insurance company the power to determine whether he could practice medicine [as a member of] its staff; that the insurance requirement was an improper and unlawful delegation of the hospital’s duties to determine his fitness to practice medicine; that the hospital breached its contract with him when it eliminated his privileges with one year remaining in his agreed-upon term; and that the hospital violated his right of due process when it arbitrarily terminated his staff privileges. We conclude that none of these positions is tenable, however, as the hospital had every legal right to take the action it did.

Even assuming that the hospital’s insurance company was the instigator of a nationwide policy requiring staff members of its insured hospitals to secure individual malpractice insurance, as appellant argues, there is simply no evidence of record showing that the appellee hospital illegally delegated any of the supervisory authority granted it by OCGA § 31-7-7 (a) to refuse or revoke staff privileges. Rather, this was a rational and thoroughly debated decision unanimously made by the hospital’s Board of Trustees, with no apparent input or pressure from the insurance company, that the insurance requirement was reasonable and necessary. “In our opinion, the challenged resolution is an administrative policy adopted by the Hospital Authority pursuant to the power vested in them by the legislature under [OCGA § 31-7-7] et seq., in furtherance of the administration, operation, maintenance and control of the hospital and, accordingly, the function of this court is limited to a determination of whether the Hospital Authority’s action in adopting the resolution was arbitrary and unreasonable. [Cits.] In deciding this question we may not substitute our judgment for that of the Hospital Authority on matters . . . which are purely administrative rather than legal in nature.” Cobb County-Kennestone Hosp. Auth. v. Prince, 242 Ga. 139, 146 (1) (249 SE2d 581) (1978).

A physician does not have “absolute authority” to practice medicine in this state and a hospital authority may restrict a staff member’s privileges by reasonable and non-discriminatory rules and regulations. Dunbar v. Hosp. Auth. of Gwinnett County, 227 Ga. 534 (1) (182 SE2d 89) (1971). “ ‘ “A statute regulating the right to practice medicine, but leaving the field open to all who possess the prescribed qualifications, does not abridge the privileges or immunities of citizens.” [Cit.]’ [Cits.]” (Emphasis supplied.) Yeargin v. Hamilton Mem. Hosp., 225 Ga. 661, 666 (171 SE2d 136) (1969); (U. S. cert. den., 397 U. S. 963). Moreover, every doctor receiving staff privileges at the hospital did so with the understanding that his appointment was subject to its bylaws.

While the reasonableness of the malpractice insurance requirement has not previously been called in question in this state, it appears in every jurisdiction which has considered such an appeal that these measures to protect the hospital and the patients it serves have been determined not to be unlawful, arbitrary, or capricious. See Holmes v. Hoemako Hosp., 573 P2d 477 (Ariz. 1977); Annot., 7 ALR 4th 1231 (1981). We see no good reason to oppose this trend. “Part of the responsibilities of a hospital authority is to insure that an adequate, competent medical staff serves the patients within the hospital. ‘It is generally agreed that the managing authorities of a hospital, under the power to adopt reasonable rules and regulations for the government and operation thereof, may, in the absence of any statutory restriction prescribe the qualifications of physicians or surgeons for admission to practice therein.’ [Cits.] It naturally follows that a hospital authority has the power to revoke the staff privileges of a physician whom [it] finds to be incompetent or who fails to comply with the reasonable rules and regulations as promulgated by the Authority. [Cit.]” (Emphasis supplied.) Cobb County-Kennestone Hosp. Auth. v. Prince, supra at 144. Accord Todd v. Physicians & Surgeons Community Hosp., 165 Ga. App. 656 (302 SE2d 378) (1983).

Decided July 5, 1989

Rehearing denied July 13, 1989

Walbert & Hermann, David F. Walbert, David H. Bedingfield, for appellant.

Harman, Owen, Saunders & Sweeney, H. Andrew Owen, Jr., Hart & Sullivan, Lawrie E. Demorest, R. Jerry Kirkpatrick, for ap-pellee.

Since Dr. Stein accepted his privileges subject to the hospital authority’s bylaws, as properly amended, no “expectation” or “bargain” on his part has been abrogated by its actions. “The mere fact that [Dr. Stein] would benefit from performance of an agreement with reference to treatment at the hospital of the patients is insufficient to give [him] any rights or to create or make [him a contracting party] with enforceable rights. [Cits.]” Todd, supra at 663. For Dr. Stein “to have a constitutionally protected property interest here, which would then require prior to its deprivation the procedural due process of a duly constituted hearing, he must have a ‘legitimate claim of entitlement,’ supported by contract or state law. [Cits.] State law does not afford Dr. [Stein] such a property interest. . . . Nor did the contract give rise to a protected property interest.” Alonso v. Hosp. Auth. of Henry County, 175 Ga. App. 198, 202 (6) (332 SE2d 884) (1985). For these reasons, the trial court correctly granted summary judgment in favor of the hospital and against Dr. Stein.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A89A1147.
    BASSETT v. THE STATE.
    (384 SE2d 402)
   Banke, Presiding Judge.

The appellant was indicted on June 14, 1985, for trafficking in cocaine, based on allegations that, on June 6, 1985, he “did knowingly bring into this state and [was] knowingly in actual possession of more than 400 grams of a mixture containing cocaine.” He was tried before a jury on that charge and was found guilty. That conviction was affirmed on appeal, see Bassett v. State, 181 Ga. App. 597 (353 SE2d 48) (1987) (cert. den.), but was ultimately vacated in habeas corpus proceedings on the ground that the definition of cocaine trafficking, as set forth in OCGA § 16-13-31, had been amended between the time of the appellant’s indictment and the time of his trial to substitute for the words, “any mixture containing cocaine,” the words “any mixture with a purity of 10 percent or more of cocaine,” see Ga. L. 1985, pp. 552, 553, with the result that the offense for which the appellant had been indicted and tried no longer existed. Bassett v. Lemacks, 258 Ga. 367 (370 SE2d 146) (1988).

Decided June 22, 1989

Rehearing denied July 13, 1989

Gaines C. Granade, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

Subsequent to the Supreme Court’s decision in Bassett v. Lemacks, supra, the appellant was re-indicted and again convicted of trafficking in cocaine, this time based on allegations that, on June 6, 1985, he “did knowingly bring into this state and [was] knowingly in actual possession of more than 200 grams of cocaine.” He contends in the present appeal that this conviction was unconstitutional because it was for an offense which did not exist at the time the conduct in question occurred and because it was obtained in violation of the constitutional and statutory prohibitions against multiple prosecutions for the same conduct. Held:

1. The appellant’s contention that he was convicted of an offense which did not exist at the time it was allegedly committed is without merit. The act of knowingly bringing into the state or knowingly being in possession of more than 200 grams of cocaine constituted the offense of trafficking in cocaine both before and after the 1985 amendment to OCGA § 16-13-31 (a). Accord Seals v. Lemacks, 258 Ga. 421 (370 SE2d 749) (1988). Indeed, the Supreme Court specifically indicated in Bassett v. Lemacks, supra, that because the appellant “had ‘actual possession of more than 28 grams of cocaine,’ ” his conviction would have been valid notwithstanding the change in the statute had the indictment been worded differently. Id. 258 Ga. at 370.

2. We similarly find no merit in the appellant’s contentions that his present conviction was obtained in violation of the constitutional and statutory prohibitions against multiple prosecutions for the same conduct. See Samuel v. State, 190 Ga. App. 539 (379 SE2d 571) (1989).

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: Deen, Presiding Judge.

text:
    A89A1307.
    A89A1337.
    CAUSEY v. THE STATE. SMITH v. THE STATE.
    (384 SE2d 674)
   Deen, Presiding Judge.

Appellants Causey and Smith, together with a third person not a party to either of these appeals, were charged, in identical indictments, with conspiracy to traffic in cocaine and possession of cocaine, a substance proscribed under the Georgia Controlled Substances Act, Title 16, Ch. 13. The possession count was nol prossed, and a Floyd County jury found both appellants guilty of conspiring to traffic in cocaine. After denial of their motions for new trial (and in Causey’s case, certain other proceedings) both have appealed to this court.

In Case No. A89A1307 Causey enumerates as error (1) the trial court’s refusal to consider his demand for speedy trial, (2) the court’s refusal to consider his motion to quash the conspiracy count of the indictment (Count I), (3), (4) the insufficiency of the evidence to prove conspiracy or venue, (5) a variance between allegata and probata, and (6) sentencing the defendant under a statute other than that under which he was convicted. In Case No. A89A1337, Smith enumerates as error (1) the trial court’s allegedly placing his character in issue by mentioning a firearms charge that had already been dropped, (2) the denial of his motion for directed verdict of acquittal or in the alternative to quash the indictment for duplicity, (3), (4) failure to direct a verdict of acquittal because bf insufficiency of evidence of possession and venue, (5) failure to sever Smith’s trial from Causey’s, and (6) a variance between allegata and probata.

Case No. A89A1307

1. Scrutiny of the record and of relevant Constitutional and statutory provisions indicates that no proper demand for speedy trial was ever made. This enumeration is therefore without merit. See Constitution of the United States, Amendment VI; OCGA § 17-7-170 and annot.

2. Assuming without deciding that appellant Causey’s counsel properly joined in appellant Smith’s counsel’s oral motion to quash Count I of this indictment, we find no merit in the second enumeration. Cited in the indictment are OCGA §§ 16-13-30 (“Possession, manufacturing, distribution, etc., of controlled substances [cocaine is included in Schedule II] or marijuana . . .”), and 16-13-30 (“Attempt or conspiracy to commit offense under this article”). It is OCGA § 16-13-31, however (“Trafficking in cocaine, illegal drugs, or marijuana . . .”), which actually describes, and prescribes penalties for, the knowing sale, manufacture, delivery, importation, or possession of specified quantities of cocaine, as set forth in the indictment. Although “[a]n accused is entitled to an indictment perfect in form as well as substance if he raises the question on special demurrer [or motion to quash][,]” State v. Shepherd Constr. Co., 248 Ga. 1, 3 (281 SE2d 151) (1981), the Supreme Court in State v. Eubanks, 239 Ga. 483 (238 SE2d 38) (1977) (the case from which the statement in Shepherd is derived), made exhaustive inquiry into Georgia cases in which the denomination of the offense in the indictment is inconsistent with the acts named or described in the text of the indictment. In Eubanks that court observed, at 489, that the defendant “knew the prosecutor was going to attempt to show him guilty of [a certain offense] . . . ; he knew the indictment erroneously named the crime as [a similar offense defined in a different Code section] . . . [He] alleges no prejudice to himself, and we can discern none. Any error in failing to give him a ‘perfect’ indictment is subject after trial to a harmless error test, and was manifestly harmless.” The court concluded, at 484: “We think that those cases stating a defendant’s entitlement to a perfect indictment have no literal application to a post-conviction review; that an inconsistency between the denomination and the allegations in the indictment is an imperfection, but is one that is subject to a harmless error test on appeal; and that a defendant who was not at all misled to his prejudice by any imperfection in the indictment cannot obtain reversal of his conviction on this ground.”

In the instant case it was clear that appellant had notice of what he was charged with, so that he could prepare his defense and be safeguarded against double jeopardy. He has shown no harm from the ruling. The court therefore did not err in denying the motion to quash.

3. For the reasons cited in Division 2 we also find without merit appellant’s fifth and sixth enumerations, which essentially restate the second.

4. As to appellant’s third and fourth enumerations, we find that the evidence regarding venue and conspiracy to traffic was sufficient to authorize the rational trier of fact to find that the State had met its burden of proving them beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Case No. A89A1337

1. We find the court’s inadvertent reference to the possession of firearms charge to have been, in the fact situation sub judice, harmless error at most. The transcript shows that the court immediately corrected himself and offered to give curative instructions, but that defense counsel declined, preferring that the misstatement not be emphasized thereby. This might well be deemed a waiver, or an acquiescence in the ruling. He who acquiesces at trial is not permitted on appeal to predicate error thereupon. Williams v. State, 183 Ga. App. 373 (358 SE2d 914) (1987). The transcript further indicates that the court gave full and fair instructions on presumption of innocence, burden of proof, and other relevant matters. We find it highly probable, especially in the light of other evidence of guilt presented at trial, that the error did not contribute to the verdict. Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976). See also Schneble v. Florida, 405 U. S. 427 (92 SC 1056, 31 LE2d 340) (1972). This enumeration is without merit.

Decided July 3, 1989

Rehearing denied July 13, 1989.

William H. Newton III, for appellant (case no. A89A1307).

Richard E. Barnes, for appellant (case no. A89A1337).

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

2. For the reasons set forth in Case No. A89A1307, Division 2, supra, we find no merit in appellant’s second or sixth enumeration of error.

3. As in Division 4 of Case No. A89A1307, supra, we find the evidence as to both venue and possession (as defined in the Code) to be sufficient to authorize the rational trier of fact to conclude that the State had met its burden of proof beyond a reasonable doubt. Jackson v. Virginia, supra.

4. Whether to sever the trials of co-defendants is a matter of discretion with the trial judge, and, absent abuse, his decision will not be disturbed by the appellate court. OCGA § 17-8-4; Glover v. State, 188 Ga. App. 330 (373 SE2d 39) (1988). Factors to be considered by the court in its exercise of discretion are as follows: (1) Will the number of defendants create confusion as to evidence and law relative to the separate defendants?; (2) Is there a danger that evidence admissible against only one defendant (or, where there are more than two defendants, only against certain ones of them) will nevertheless be considered against another?; and (3) Are the defendants’ respective defenses antagonistic to the defenses, or the rights, of another? Glover v. State, supra at 331. It is the defendant who has the burden of showing, on his motion to sever, that any of the named criteria are applicable so as to prejudice his defense.

In the instant case the record indicates that the jury was meticulously instructed that a separate verdict must be returned for each of the two defendants and (depending on the circumstances) only certain evidence could be considered against each defendant. We find that the trial court’s denial of the motion to sever was not erroneous, and that appellant’s fifth enumeration of error is consequently without merit.

Judgments affirmed.

Birdsong and Benham, JJ., concur.


author: Carley, Chief Judge. Beasley, Judge,

text:
    A89A0026.
    SMITH v. THE STATE.
    (384 SE2d 459)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of possession of marijuana with intent to distribute and obstruction of a law enforcement officer. He brings this appeal from the denial of his motion for new trial and from the judgments of conviction and sentences that were entered on the jury’s guilty verdicts.

The sole enumeration is that the trial court erred in denying appellant’s motion to suppress. The record shows that officers secured a warrant to search a certain residence. Execution of this warrant resulted in the discovery and seizure of more than nineteen pounds of marijuana. The officers also found, in plain view, deposit slips and checks which bore appellant’s name and the address of the residence being searched. Letters which were addressed to appellant at the residence were also found in plain view. These deposit slips, checks and letters were seized and, after the motion to suppress was denied, they were admitted at trial as proof of appellant’s occupancy of the residence. Appellant urges that these items were his “private papers” and that, as such, they were not subject to seizure. See OCGA § 17-5-21 (a) (5).

A similar contention was raised in Ledesma v. State, 251 Ga. 885 (311 SE2d 427) (1984). In that case, officers had seized a ledger, desk calendars, deposit slips, a business license and an employment contract. As against the contention that these items had been seized in violation of the Fourth Amendment and OCGA § 17-5-21, our Supreme Court held that they were “not private papers. See, McCormick, Evidence (2d Ed.), § 170, pp. 380-381. See also, LaFave, Search and Seizure, § 2.6 (e), pp. 395-8.” Ledesma v. State, supra at 890-891. A review of the authorities cited by the Supreme Court in Ledesma demonstrates that the concept of “private papers” would include diaries, personal letters, and similar documents wherein the author’s personal thoughts are recorded. Here, as in Ledesma, supra, however, the items which were seized do not fall into this category. The checks and deposit slips certainly record no one’s personal thoughts but merely the fact that the residence was appellant’s address for financial purposes. Likewise, the letters were of a business and not a personal nature, they were addressed to and not written by appellant, and it was the name and address listed on the envelopes and not the contents which were incriminating. Accordingly, the trial court did not err in denying the motion to suppress these items.

Appellant’s remaining contentions relate to a purported search of his person. It would appear, however, that appellant’s enumeration of error, as it is phrased, is limited strictly to the seizure of items from the residence. Accordingly, appellant’s enumeration would not be broad enough to authorize appellate consideration of any issue concerning a search of his person. “An enumeration of error cannot be enlarged to include other issues not made therein.” Reese v. State, 139 Ga. App. 630, 631 (3) (229 SE2d 111) (1976). Moreover, no tangible physical evidence seized from appellant’s person was ever introduced at trial and the error, if any, in denying the motion as to such evidence would be harmless at most. See generally Bradshaw v. State, 163 Ga. App. 819 (1) (296 SE2d 119) (1982). Compare State v. Cochran, 135 Ga. App. 47 (217 SE2d 181) (1975); Wallace v. State, 131 Ga. App. 204 (205 SE2d 523) (1974).

Judgments affirmed.

Deen, P. J., McMurray, P. J., Birdsong, Pope and Benham, JJ., concur. Banke, P. J., Sognier and Beasley, JJ., concur in part and dissent in part.

Beasley, Judge,

concurring in part and dissenting in part.

I respectfully dissent with respect to seizure of the papers.

One of the three grounds asserted by defendant for suppression of the evidence was lack of authority to seize papers, which he argues should not have been used by the State as evidence of defendant’s occupancy and control of the premises and thus of his possession of the marijuana. Defendant relies on the Federal and State Constitutions and OCGA §§ 17-5-21 and,17-5-28.

He invokes OCGA § 17-5-21 (a) & (b) for the proposition that private papers not listed in the search warrant may not be seized during a lawful search if they are mere evidence rather than contraband or instrumentalities of the crime. From the questioning during the motion hearing just preceding trial, we can just about discern that this ground was raised below, but the absence of a written motion, transcript of argument, or explanatory order leaves this nearly un-preserved for appellate purposes. See Maddox v. State, 174 Ga. App. 728, 733 (7) (330 SE2d 911) (1985).

Whether the papers at issue here could have been listed in the warrant under the strictures of subsection (a) (1) is not before us, as the papers were not so listed. Subsection (b) governs, and by its plain language it precludes the “discovering or seizing” of private papers which are simply “tangible evidence” as opposed to contraband.

The papers were not contraband or instrumentalities of the crime charged, as the state witness admitted during the suppression hearing. They were, as he stated, seized because they showed defendant’s connection with the residence. Throughout the execution of the warrant defendant had been denying this fact and had fought the officers when they sought to obtain the key which they thought opened the house and which in fact did.

Although defendant cites no cases which construe or apply the Georgia statute in the manner he projects, the words of the statute support his position. He does cite federal cases predating Warden v. Hayden, 387 U. S. 294 (87 SC 1642, 18 LE2d 782) (1967), which cases distinguish between papers listed and those not listed but merely constituting evidence. They relate to the Federal Constitutional protections against unreasonable search and seizure and self-incrimination, as found in the Fourth and Fifth Amendments, not the Georgia statute. However, they put the question here in focus for the purpose of analyzing the Georgia statute, although Warden discarded the distinction between “mere evidence” and “instrumentalities” for Federal Constitutional purposes.

The State counters with the argument that such papers were not inadmissible as “mere evidence” as distinguished from “instrumental-ities of crime” under the Fourth Amendment, citing as controlling Warden v. Hayden, supra. Further, the State argues, the papers were properly seized under the plain view doctrine as set out in Coolidge v. New Hampshire, 403 U. S. 443 (91 SC 2022, 29 LE2d 564) (1971). See Scott v. State, 122 Ga. App. 204 (176 SE2d 481) (1970).

I do not reach the Federal or the State Constitutional issues (appellant cites but does not argue the State Constitutional ground, Ga. Const. Art. I, Sec. I, Par. XIII) because there is a violation of the state statute and no need to go farther. See “Independent State Grounds: How to Win Through the First Door Out,” by Harold G. Clarke, Presiding Justice, Ga. State Bar Journal, Vol. 23, No. 4, 1987; Wells v. State, 180 Ga. App. 133, 138 (348 SE2d 681) (1986), special concurrence. Also, appellant does not pursue these provisions or show that either of them have been construed so as to prohibit the seizure of the papers in this case. The mere intoning of the provisions does not call them into play. Taylor v. State, 177 Ga. App. 624, 628 (3) (340 SE2d 263) (1986), and Court of Appeals Rule 15 (c) (2).

However, the code section relied upon by appellant provides more stringent protection to one whose property is subjected to a search and seizure. See Michigan v. Long, 463 U. S. 1032 (103 SC 3469, 77 LE2d 1201) (1982). OCGA § 17-5-21 forbids a search for the private papers of any person where they constitute merely “tangible evidence” of the commission of a crime, and not the “instrumentalities” of the crime. Tuzman v. State, 145 Ga. App. 761, 766 (2) (b) (244 SE2d 882) (1978). Because a warrant could not issue for search of private papers to be used as tangible evidence of the commission of a crime, the fact that the items were in plain view would not impart validity to their seizure. See Zimmerman v. State, 131 Ga. App. 793, 794 (207 SE2d 220) (1974), holding that plain view absent probable cause does not equal a lawful seizure. See also 68 AmJur2d 768, Searches & Seizures, § 112. Compare Jarvis v. Rubiano, 244 Ga. 735, 736 (2) (261 SE2d 645) (1979).

In Scott, supra, on which the State relies, the issue was whether the search and seizure met constitutional muster and the Georgia code section was not in issue.

Ledesma v. State, 251 Ga. 885, 889 (7) (a) (311 SE2d 427) (1984), involved a “ledger reciting drug transactions; two desk calendars recounting drug transactions and the name of a drug courier; deposit slips for Wes-Mer Chemical Company found at appellant Merritt’s real estate business; a business license of Wes-Mer Chemical Company; and an employment contract between a third party and Wes-Mer Chemical Company. Both the business license and contract denominated appellant Merritt as a corporate officer in Wes-Mer Chemical Company, ...” Id. at 890.

No personal letters or other personal papers were included. Moreover, it was the search of a place of business, not a private residence. The Court distinguished these papers as instrumentalities of a crime, which are not precluded from seizure by OCGA § 17-5-21. They were part of the corpus delicti, documents used in connection with the crime of conspiring to sell cocaine. These were documents which helped carry the criminal objective to fruition and were direct evidence of the crime. Also, they were not personal but belonged to a business.

In the present case, the papers contained information about their owner’s personal affairs, such as where he banked, to whom he wrote checks and in what amounts, who he telephoned and how much he owed the phone company and others, where and how much he had in a savings account. These were seized as evidence of residence, a perfectly legal status, and not as instrumentalities of crime. They were not part of the criminal act of possession of marijuana with intent to distribute or obstruction of an officer.

The commentators cited in Ledesma and referred to in the majority opinion discuss the difference between “business records” and a “diary,” referring to the dissent in Couch v. United States, 409 U. S. 322, 350 (93 SC 611, 34 LE2d 548) (1973), as well as other personal papers. They concentrate on the degree of the privacy character of the papers (some more private than others), but always in the Federal Constitutional sense. See LaFave, Search & Seizure, § 2.6 (e), pp. 491-499. We are dealing with the state statute, which is very specific and is not limited in its reach by the United States Constitution.

The inclusion of LaFave and McCormick as authority for the decision in Ledesma indicates a confusion in the distinction between the Fourth Amendment and OCGA § 17-5-21. The latter expressly provides more protection to papers than does the Fourth Amendment. Even with the confusion, the Georgia Supreme Court did recognize that some documents are private papers, when it stated: “Furthermore, we hold that these documents are not private papers.”

Since I would conclude that the papers seized here were private papers within the contemplation of the statute, I would hold that the failure to grant the motion to suppress the seizure of defendant’s papers and the admission into evidence of the “bag of documents” was error.

Decided July 13, 1989.

Brimberry, Kaplan, Campbell & Donaldson, Ripley Bell, Jr., for appellant.

Hobart M. Hind, District Attorney, J. Mark Shelnutt, Assistant District Attorney, for appellee.

I am authorized to state that Presiding Judge Banke and Judge Sognier join in this opinion.


text:
    A89A0113.
    MOTES v. THE STATE.
    (384 SE2d 463)
   Carley, Chief Judge.

Appellant was tried before a jury on an indictment which charged her with the felony murder of her husband, the underlying felony being aggravated assault. She was found guilty of felony-grade involuntary manslaughter. See OCGA § 16-5-3 (a). Appellant appeals from the judgment of conviction and sentence entered by the trial court on the guilty verdict.

1. Appellant enumerates as error the trial court’s giving of a charge on felony-grade involuntary manslaughter. The contention is that an indictment for felony murder will not support a conviction for felony-grade involuntary manslaughter.

OCGA § 16-1-6 defines “included crimes” and provides that “[a]n accused may be convicted of a crime included in a crime charged in the indictment or accusation.” Pursuant to this statutory definition, the underlying felony is necessarily an “included crime” in the offense of felony murder. See generally Washington v. State, 190 Ga. App. 143 (378 SE2d 381) (1989). Accordingly, an accused may be convicted of the underlying felony charged in a felony-murder indictment. Also under the statutory definition, the underlying felony can itself include lesser offenses. Therefore, an accused may be convicted of an offense included in the underlying felony charged in a felony-murder indictment. Thus, if the evidence would authorize a finding that the accused committed an offense “included” in the underlying felony charged in a felony murder indictment and if that included offense is a misdemeanor, then a guilty verdict as to felony-grade involuntary manslaughter would be authorized. “[W]here the testimony of the defendant with regard to his intent, or where the surrounding circumstances were sufficient to authorize a jury to find a lack of intent to kill, the court should charge on the lesser offense of involuntary manslaughter — the other requisites of [OCGA § 16-5-3] (a) . . . being present.” Spradlin v. State, 151 Ga. App. 909, 910 (266 SE2d 310) (1980). It follows that this enumeration of error is without merit.

2. The general grounds are enumerated as error.

The evidence, construed most strongly in favor of the guilty verdict, is as follows: Appellant admitted that she aimed a gun at her husband, but denied that she had intended to pull the trigger or that she had intentionally shot him. The evidence did not demand a finding that, prior to the fatal shot, appellant’s husband was aware that appellant was pointing a gun at him such that the felony of aggravated assault had been committed, but would authorize a finding that appellant had committed only a lesser included misdemeanor offense, such as pointing a gun at him. See generally Kerbo v. State, 230 Ga. 241 (196 SE2d 424) (1973), overruled on other grounds, State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976). “[Ijf the victim is not placed in reasonable apprehension of immediate violent injury by the pointing of the firearm, only the misdemeanor of pointing a firearm (and not the felony of aggravated assault) has been committed. (This would be the case where the victim was completely unaware that a firearm was pointed at him. On the other hand, if the pointing of a firearm placed the victim in reasonable apprehension of immediate violent injury, the felony of aggravated assault has occurred.)” Rhodes v. State, 257 Ga. 368, 370 (5) (359 SE2d 670) (1987). Accordingly, insofar as the evidence would authorize a finding that appellant had unintentionally killed her husband in the commission of a misdemeanor offense included in the crime of aggravated assault, a finding of guilt as to felony-grade involuntary manslaughter was authorized. See generally Kerbo v. State, supra; Brown v. State, 150 Ga. App. 831 (1) (258 SE2d 641) (1979). Compare Rhodes v. State, supra at 370 (6); Richardson v. State, 250 Ga. 506, 507 (3) (299 SE2d 715) (1983); Raines v. State, 247 Ga. 504, 506 (2) (277 SE2d 47) (1981); Riley v. State, 181 Ga. App. 667 (353 SE2d 598) (1987). After a review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. During voir dire, the prospective jurors were asked whether any of them had served on the grand jury that returned the indictment against appellant. None responded in the affirmative. After the case had been submitted to the jury, however, one of the jurors discovered that her name was listed on the indictment as a grand juror and that, although she did not remember it, she had in fact served in that capacity. The juror immediately sent a note to the trial court, apprising it of her discovery. The trial court halted the jury’s deliberations and, after questioning the juror, excused her. When the trial court then indicated that it was prepared to proceed with an alternate replacing the excused juror, appellant moved for a mistrial. The trial court denied the motion and appellant enumerates this ruling as error.

Appellant urges that the grant of her motion for mistrial was demanded because of the juror’s failure to respond affirmatively to the voir dire inquiry concerning her service on the grand jury. However, not “ ‘every incorrect answer given on voir dire calls inexorably for a new trial; the question of bias and resultant prejudice remains to be determined. [Cit.] [Cits.] If the answer was given in good faith with no deliberate intent to mislead, the trial court may well find that no prejudice resulted. . . .’ [Cit.]” Jones v. State, 247 Ga. 268, 270 (2b) (275 SE2d 67) (1981). Here, as in Harbin v. State, 165 Ga. App. 631, 632 (302 SE2d 386) (1983), the trial court was clearly authorized to find that the juror had not engaged in a deliberate effort to mislead. “As soon as the juror, during the trial, became convinced that she [was probably disqualified] she immediately called this to the attention of the court.” Harbin v. State, supra at 632 (1). Insofar as prejudice to appellant is concerned, the record shows that, before allowing the case to proceed, the trial court determined that the juror had not expressed to the other jurors any opinion which was not based solely upon the evidence adduced at trial. After denying the motion for mistrial, the trial court also instructed the remaining original jurors and the alternate not to renew the deliberations but to start anew, giving no consideration to anything that the excused juror might have said. After the verdict was returned, the trial court polled each individual juror as to whether the presence of the excused juror had affected his or her vote in any manner. Each juror responded in the negative. “In view of the totality of the facts and circumstances in the case sub judice we hold that the trial court correctly handled this unusual situation and did not err in declining to grant [appellant’s] motion for mistrial as any presumption of injury to [appellant] was overcome and the [grand] juror’s presence in the jury room was harmless.” Duncan v. State, 155 Ga. App. 624, 627 (4) (271 SE2d 878) (1980).

4. Appellant submitted several written requests to charge relating to the “battered woman’s syndrome.” The trial court’s refusal to give these charges is enumerated as error.

The “battered woman’s syndrome” is not a separate defense. It is merely evidentiary support for the defense of justification. “[E]xpert opinion as to the battered woman syndrome is admissible to assist the jury in evaluating the battered woman’s defense of self-defense.” Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981). See also Chapman v. State, 258 Ga. 214, 215 (2) (367 SE2d 541) (1988). Appellant was allowed to introduce expert opinion testimony as to the battered woman’s syndrome. There is no contention that appellant’s counsel was not permitted to argue that the battered woman’s syndrome supported appellant’s claim of self-defense. The trial court gave full and fair general instructions on the legal principles applicable to expert testimony and self-defense. It was not error to refuse to give any additional instructions which, in essence, argumentatively emphasized such evidence as may have supported appellant’s theory that she had acted in self-defense. Appellant “was not entitled to have the court adopt [her] language, framed in argumentative form, and emphasizing selected facts in [her] interest, where the charge to the jury as a whole covered plainly and in substance the principles of law stated in the requests to charge; and the failure to give the charge in the language requested was not reversible error.” Summer v. State, 55 Ga. App. 185 (2) (189 SE 687) (1937). “ ‘The office of a charge by the court is to give to the jury such instruction touching the rules of law pertinent to the issue involved in the pending trial, as will enable them intelligently to apply thereto the evidence submitted, and from the two constituents law and fact make a verdict. In delivering his charge the trial judge should carefully avoid an invasion of the province of the jury. He should refer to the evidence only so far as is necessary to present the leading issues in the cause, leaving the minor contentions of opposing counsel to the consideration of the jury under appropriate general instructions. It should contain no such summary of the evidence as might to a jury either seem to be an argument or amount to the expression or intimation of an opinion thereon. It is therefore [not] error ... for the presiding judge to [refuse to] repeat the substance of the testimony of [appellant’s] witnesses as detailed from the stand, and submit this with the argumentative deductions drawn therefrom by [appellant’s] counsel, as the issues in the case.’ [Cit.]” Rouse v. State, 2 Ga. App. 184 (58 SE 416) (1907).

5. The trial court did not err in allowing into evidence pre-incision autopsy photographs of the victim. See generally Brooks v. State, 258 Ga. 20, 22 (3) (365 SE2d 97) (1988). Compare Brown v. State, 250 Ga. 862, 866 (5) (302 SE2d 347) (1983). The fact that the examining physician may have testified as to the location and nature of the victim’s wounds would not render the photographs inadmissible. See Lamb v. State, 241 Ga. 10, 12 (2) (243 SE2d 59) (1978).

Judgment affirmed.

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

Beasley, Judge,

concurring specially.

I concur fully in all divisions except Division 2, in which I concur in the holding. The misdemeanor offense which was involved as a lesser-included offense in this case was reckless conduct, OCGA § 16-5-60 (b), and not pointing a pistol at another, OCGA § 16-11-102. The court charged the jury that it could consider the reckless conduct, reciting the elements. It did not charge the jury concerning pointing a pistol. The evidence does support a finding of reckless conduct beyond a reasonable doubt.

Decided July 13, 1989.

Cowart & Varner, Edwin S. Varner, Jr., Keith H. Salmon, for appellant.

Edward D. Lukemire, District Attorney, George R. Christian, Assistant District Attorney, for appellee.


author: Deen, Presiding Judge. Beasley, Judge, Benham, Judge,

text:
    A89A0152.
    A89A0225.
    ALLEN v. THE STATE. SULLIVAN v. THE STATE.
    (384 SE2d 467)
   Deen, Presiding Judge.

Appellants, after being pursued in a high-speed police chase along 1-285 in January 1986, were apprehended when the car appellant Allen was driving and in which appellant Sullivan was a passenger collided with a police vehicle. Appellants were convicted of: theft by receiving (the automobile they were driving had been stolen from the service area of a car dealership); criminal interference with governmental property (colliding with and damaging the police car); aggravated assault (driving the automobile at a police officer who had exited his car in an effort to apprehend appellants); two counts of theft by receiving stolen property (a briefcase stolen that night from a car parked at a residence and a gun stolen from another individual’s car two weeks earlier were found in the car appellants were driving); and possession of a firearm during the commission of a felony, the felony being the theft of the vehicle in appellants’ custody at the time of their apprehension. All of appellants’ enumerated errors center on their convictions for possession of a firearm during the commission of a felony. Held:

1. Appellants contend that the firearm possession charge is inapplicable when the underlying felony is theft by receiving. We disagree.

OCGA § 16-11-106 (b), as it existed at the time of appellants’ alleged offense, provided that “[a]ny person who shall have on his person a firearm . . . during the commission of, or the attempt to commit: (1) Any crime against or involving the person of another; (2) the unlawful entry into a building or vehicle; (3) A theft from a building or theft of a vehicle. . . ; and which crime is a felony, commits a felony. . . .” The statutory phrase, “theft of a vehicle,” is very general language and, most reasonably construed, includes the various methods of theft rather than limiting it to theft by taking. Theft by receiving a stolen vehicle is a theft of a vehicle. OCGA § 16-8-7.

2. The evidence authorized a rational trier of fact to find both appellants guilty beyond a reasonable doubt of possession of a firearm during the commission of a felony. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Appellants’ remaining enumerations of error also are. without merit.

Judgments affirmed.

Carley, C. J., McMurray, P. J., Banke, P. J., Birdsong and Pope, JJ., concur. Beasley, J., concurs specially. Sognier and Benham, JJ., dissent.

Beasley, Judge,

concurring specially.

I concur for this reason. There is in Georgia no separate crime of “theft of a vehicle” as such. There used to be, but it was repealed by Ga. L. 1981, p. 1576, § 2, eff. July 1, 1981. The “possession of firearm” statute was substantially changed in 1986 and 1987. We must assume the legislature knew, when it made these revisions but did not change the “theft of a vehicle” language, that the. separate crime was no longer in existence as a distinctly described crime and that instead, theft of a vehicle was subsumed under all the “by” provisions in the Code on theft. That is to say, there is no such thing as “theft of a vehicle” in legal terminology, according to Georgia’s statutory scheme. The crime in statutory parlance would be “theft (of a vehicle) by taking” (OCGA § 16-8-2), or “theft (of a vehicle) by deception” (OCGA § 16-8-3), or “theft (of a vehicle) by conversion” (OCGA § 16-8-4), and so on.

Thus, very clearly, the statutory language “theft of a vehicle” embraces all the Code sections which specify the methods of theft. Receiving is one of those methods. The vehicle is merely the object.

Benham, Judge,

dissenting.

I file this dissent to the merits of the one enumeration the majority has selected to review.

The majority concludes that the phrase “theft of a vehicle” covers all the means of committing a theft listed in OCGA Ch. 16-8, i.e., theft by taking, theft by deception, theft by conversion, theft by receiving stolen property, theft of services, and theft of lost or mislaid property. However, “[i]t has always been the law that criminal statutes must be strictly construed against the State. [Cit.]” Bankston v. State, 258 Ga. 188, 190 (367 SE2d 36) (1988). “In this state, no act is criminal unless it is expressly made so by positive legislative enactment. [Cits.]” Billingsley v. State, 183 Ga. App. 850 (1) (360 SE2d 451) (1987). Strictly construing OCGA § 16-11-106 (b) (3), we note that it does not expressly include all the means of theft from a building or theft of a vehicle. Compare it to OCGA § 16-11-106 (b) (1), which lists any crime against or involving the person of another, and to OCGA § 16-11-106 (b) (4 and 5), which cover any crime involving controlled substances and trafficking in illegal drugs. Since we must construe the statute strictly against the State and the statute does not expressly include theft by receiving stolen property, I am of the opinion that OCGA § 16-11-106 (b) is not applicable to the instant cases, in which the underlying felony was theft by receiving a stolen vehicle. To hold otherwise gives “theft” a very broad definition and will result in unprecedented convictions. Because such a broad construction of the statute is not permitted, I am constrained to agree that appellants’ convictions of possession of a firearm during the commission of a felony should be reversed.

Decided July 13, 1989.

Michael H. Lane, for appellant (case no. A89A0152).

Michael A. Zoffman, for appellant (case no. A89A0225).

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Henry M. Newkirk, Richard E. Hicks, Assistant District Attorneys, for appel-lee.

I am authorized to state that Judge Sognier joins in this dissent.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A89A0318.
    SOUTHERN RAILWAY COMPANY v. MONTGOMERY.
    (384 SE2d 907)
   McMurray, Presiding Judge.

This action against defendant Southern Railway Company was filed by plaintiff Montgomery pursuant to the Federal Employers’ Liability Act, 45 USCA 51 et seq. Plaintiff sought damages for injuries he sustained while working for defendant. The alleged cause of plaintiff’s injuries was the negligence of defendant in failing to use reasonable care to provide plaintiff with a reasonably safe place to work so that plaintiff’s back was injured when he was “trying to throw a difficult switch.” (The switch involved in the case sub judice is manually operated and controls a railway intersection.)

Upon the trial of the case the jury returned a verdict awarding plaintiff compensatory damages of $277,000 and judgment was entered in this amount. Defendant’s motion for judgment notwithstanding the verdict or in the alternative for new trial was denied and defendant appeals. Held:

1. Under the Federal Employers’ Liability Act, supra, the defendant would be liable to plaintiff for any injury suffered by plaintiff as a result of the defendant’s negligence. Brooks v. Southern R. Co., 178 Ga. App. 361, 362 (343 SE2d 143). “An employer has a non-delegable duty to exercise reasonable care to provide employees with a safe place to work, Shenker v. Baltimore & Ohio R. Co., 374 U. S. 1 (83 SC 1667, 10 LE2d 709) (1962); Atlantic Coast Line R. Co. v. Thompson, 213 Ga. 70 (97 SE2d 135) (1957). . . .” Brooks v. Southern R. Co., 178 Ga. App. 361, 362, supra.

Defendant enumerates as error the denial of its motion for directed verdict and of its motion for judgment notwithstanding the verdict. The issue presented is whether there is any evidence authorizing the jury’s verdict. Southern R. Co. v. Lawson, 256 Ga. 798, 799 (1), 800 (353 SE2d 491); Findley v. McDaniel, 158 Ga. App. 445, 446, 447 (280 SE2d 858). Defendant argues that there is no evidence of negligence on its part.

Plaintiff worked for the defendant railroad as a machine operator and had been assigned the broom operator’s job with a tie and surfacing gang. The broom operator’s job entailed sweeping the railroad track and cleaning switches. The broom is a machine which moves ballast (rock) out between the ties and smoothes it out. In order to clean a switch, the switch is first swept with the brooms and then rock is cleaned from between the rails and beneath the crossbars by hand. Cleaning a switch takes from 30 minutes to an hour. The presence of ballast beneath the crossbar would render the switch unsafe to throw.

On May 26, 1983, plaintiff was instructed to skip the switch at issue and not clean it because there was not time that day. That evening the machines of the tie and surfacing gang were placed on the railroad siding controlled by the switch at issue, however, access was obtained at the other end of the siding through a different switch. On the morning of May 27, 1983, when work resumed, plaintiff was instructed to throw the switch at issue in order to permit some of the tie and surfacing gang machines to exit the siding at that end. These instructions were given by the same supervisor who had the previous day instructed plaintiff to skip cleaning the switch. Plaintiff was instructed (along with another workman) to clear the switch after he had thrown it. As plaintiff approached the switch he noticed that there was rock under the crossbars. While attempting to throw the switch it suddenly stopped and plaintiff immediately felt a severe pain in his back. No fault was found in the mechanism of the switch. At the time of his injury plaintiff was recently back at work with defendant following having been laid off for a period and had started the broom operator’s job during the month prior to his injury. During the time plaintiff had worked as a broom operator, he had thrown switches 10 or 12 times, but had never thrown a switch that had not been cleaned. Plaintiff understood that a switch with rock in it would be harder to throw but testified that he did not believe throwing the switch in question would hurt his back.

Defendant argues that plaintiff’s injury was not foreseeable, “[wjhether the negligence of the original tortfeasor is the proximate cause of a subsequent injury is determined by asking whether the subsequent injury was a reasonably foreseeable consequence of the original tortious act.” DeKalb County Hosp. Auth. v. Davis, 250 Ga. 46 (295 SE2d 840). “Upon the principle that persons are responsible for the usual and natural results of their acts, one may be liable for an injury resulting from his negligence although he could not reasonably have anticipated the particular injury inflicted, or that the particular person would be injured. Mitchell v. J. S. Schofield’s Sons Co., 16 Ga. App. 686 (85 SE 978).” Stuart v. Berry, 107 Ga. App. 531, 537 (130 SE2d 838).

Plaintiff contends that the supervisor’s instructing plaintiff to throw a switch which had not been cleaned constituted negligence. Defendant argues that since plaintiff saw the rock prior to throwing the switch, the jury, in order to find defendant negligent, would have had to conclude that defendant knew or should have known that plaintiff would fail to exercise care for his own safety. In the case sub judice, the evidence authorized just such a conclusion. While there was evidence that plaintiff should have cleared the switch before attempting to throw it, there was also evidence that there were circumstances under which plaintiff would be expected to throw the switch without first cleaning it and that plaintiff was injured under such circumstances. We find that the jury’s finding of negligence and probable cause was authorized by the evidence. The trial court did not err in denying defendant’s motions for directed verdict and for judgment notwithstanding the verdict.

2. Via an economist, plaintiff presented expert opinion testimony regarding his loss of future earnings. The expert’s opinion was given in response to a hypothetical question to which defendant objected on the grounds that a proper foundation had not been laid. Specifically, defendant’s objection was that the question elicited an opinion predicated on the unproven assumption that plaintiff would be unable to work in the future.

A mere review of the hypothetical question at issue will show that defendant’s objection was without merit. The hypothetical question only assumes that plaintiff was unemployed at the time of trial. Testimony as to that fact had been presented in evidence. There was no suggestion in the hypothetical question that plaintiff is unable to work in the future. The hypothetical question was not improper for the reason stated by defendant. Stoneridge Properties, Inc. v. Kuper, 178 Ga. App. 409, 413 (2) (343 SE2d 424).

An assumption that plaintiff would remain unemployed was introduced by the economist in his answer to the hypothetical question. However, defendant made no objection to the answer. An objection to the answer, if made, would have been meritless since the assumption of plaintiff’s continued unemployment while somewhat speculative was not without some foundation in the evidence. To the extent that the economist’s opinion was based on insufficient facts, the weight and not the admissibility of the expert testimony was affected. Defendant was free to explore on cross-examination the implication of plaintiff’s ability to return to work and did so, submitting various hypotheses and eliciting testimony concerning the effect of those hypotheses on the economist’s estimate of plaintiff’s loss of future earnings. It remained for the jury what weight to give the expert opinion. Woods v. Andersen, 145 Ga. App. 492, 494 (4) (243 SE2d 748).

3. Finally, defendant contends that the amount of the verdict and judgment awarded plaintiff is excessive. Defendant argues that the award is so excessive as to indicate a punitive intent.

“Questions concerning the proper measure of damages in FELA cases, like questions of liability, are to be settled according to general principles of law as administered in the federal courts. Chesapeake & Ohio R. Co. v. Kelly, 241 U. S. 485, 491 (36 SC 630, 60 LE 1117) (1916); Norfolk & Western R. Co. v. Liepelt, 444 U. S. 490, 493 (100 SC 755, 62 LE2d 689) (1980). It has been held that the damages recoverable under the FELA on account of a railroad employee suffering injury or death on the job are compensatory only and that punitive damages are not recoverable. See Kozar v. Chesapeake & Ohio R. Co., 449 F2d 1238 (2) (6th Cir. 1971). However, the jury’s determination of the amount of damages to be awarded is otherwise inviolate, ‘absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial . . . (Cits.)’ Lane v. Gorman, supra, 347 F2d at 335. This standard of review is consistent with that which obtains under Georgia law, which has been stated as follows: ‘Before the verdict will be set aside on the ground that it is excessive, where there is no direct proof of prejudice or bias, the amount thereof, when considered in connection with all the facts, must shock the moral sense, appear “exhorbitant,” “flagrantly outrageous,” and “extravagant.” “It must be monstrous indeed and such as all mankind must be ready to exclaim against at first blush.” It must carry its death warrant upon its face.’ Realty Bond &c. Co. v. Harley, 19 Ga. App. 186, 187 (91 SE 254) (1917); Jones v. Spindel, 128 Ga. App. 88, 92 (196 SE2d 22) (1973); Redwing Carriers v. Knight, 143 Ga. App. 668, 677 (239 SE2d 686) (1977). See generally OCGA § 51-12-12.” Seaboard System R. v. Taylor, 176 Ga. App. 847, 849 (2) (338 SE2d 23).

Decided July 13, 1989.

Neely & Player, Edgar A. Neely III, Richard B. North, Jr., for appellant.

After a review of the evidence in the case sub judice, we do find that the award of $277,000 to plaintiff was not excessive. The evidence shows that plaintiff underwent surgery for removal of a herniated disc, suffered a 15 percent permanent disability, and was permanently restricted to light duty work. Plaintiff had not had previous problems with his back, but after his injury was troubled with chronic pain. Plaintiff testified: “My back aches all the time. I have a solid ache in my back constantly, 24 hours a day, I have an ache there. . .” “The sole measure of damages for pain and suffering is the enlightened conscience of the jury. Atlanta Transit System v. Robinson, 134 Ga. App. 170 (1) (213 SE2d 547) (1975).” Central of Ga. R. Co. v. Nash, 150 Ga. App. 68, 71 (1) (256 SE2d 619). Plaintiff also testified as to the curtailment of activities such as hunting, fishing, riding horses, and playing with his children and grandchildren. Additionally, plaintiff presented evidence regarding his loss of wages due to his injury and his anticipated loss in the future. We find that the verdict at issue was authorized by the evidence and was not excessive as a matter of law. Seaboard System R. v. Taylor, 176 Ga. App. 847, 849 (2), supra; St. Paul Fire &c. Ins. Co. v. Dillingham, 112 Ga. App. 422, 425 (145 SE2d 624).

Judgment affirmed.

Carley, C. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the judgment but have some reservations about Division 3. The evidence was that although there was a 15 percent permanent disability, only 10 percent was attributable to this injury and 5 percent of the impairment was due to his preexisting degenerative disc disease which was unrelated to the railroad incident. As to future employment and curtailment of activities, subsequent to the injury, plaintiff was temporarily completely disabled by an unconnected heart attack and precluded from gainful employment for more than a year.

Compare CSX Transp. v. Darling, 189 Ga. App. 719 (377 SE2d 217) (1988).

Kerry R. McDonald, for appellee.


author: Birdsong, Judge.

text:
    A89A0409.
    KITCHENS v. RESTAURANT MANAGEMENT SERVICES, INC.
    (385 SE2d 11)
   Birdsong, Judge.

Mrs. Kitchens, plaintiff in a slip and fall case, appeals from the grant of summary judgment to the defendant, Restaurant Management Services, Inc. (Restaurant Management). Mr. and Mrs. Kitchens visited a restaurant operated by Restaurant Management, and after placing their order, both visited the self-service salad and soup bar. While Mrs. Kitchens was returning to their booth, she slipped on a french fry and fell to the floor, injuring her knees.

Both Mr. and Mrs. Kitchens’ depositions revealed that Mrs. Kitchens fell in a walkway between two rows of booths, and not in the waitress’ walkway area as their brief asserts. Neither Mr. nor Mrs. Kitchens saw the french fry before Mrs. Kitchens fell, and neither had any idea how long the french fry may have been on the floor before she slipped on it. The walkway was used by patrons going to and from the salad bar, entering and leaving the booths, and also by employees of the restaurant serving food and cleaning the booths. Neither Mr. nor Mrs. Kitchens had any idea what opportunity the employees of the restaurant might have had to see the french fry, and no employee of the restaurant, nor anyone else, told them that they had observed the french fry before Mrs. Kitchens fell.

The restaurant manager’s deposition revealed that Mrs. Kitchens fell at a very busy time. He denied any knowledge of any foreign substance on the floor, including a french fry, and stated that it was company policy to police the floor constantly and that anything found on the floor is cleaned up immediately. He also testified that food is carried from the kitchen to the booths on serving trays, and that the dining room is constantly checked for anything on the floor.

Restaurant Management moved for summary judgment asserting that it had no knowledge, either actual or constructive, of any french fry on the floor and that it exercised ordinary care in keeping the premises safe. Mrs. Kitchens’ rebuttal was that there were questions of fact remaining on the issues of knowledge by the appellee and whether ordinary care was exercised. The trial court, however, granted summary judgment to Restaurant Management. Mrs. Kitchens now appeals asserting that the trial court erred by granting summary judgment when questions of fact remained. Held:

1. The Supreme Court of this state restated the test for liability of the proprietor in cases such as this in Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327). The Supreme Court held that while the owner or occupier is liable to invitees for his failure to exercise ordinary care in keeping the premises safe, before he can be held liable for a slip and fall caused by a foreign substance on the floor it must be proven that he was aware of the substance or would have known of it if he had exercised ordinary care. Id. at 622. While there appears little doubt that Mrs. Kitchens fell on a french fry, there is no evidence that Restaurant Management nor any of its employees had any knowledge of the french fry before she fell.

Although Mrs. Kitchens attempts to rely on the rule that constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could have easily noticed and removed the hazard, there is no evidence that there were employees in the area before Mrs. Kitchens fell, or that any employee was in a position to see the french fry when it was on the floor. While it may be assumed that employees of the defendant were using the walkway at some time, there is no evidence that any employee was present when Mrs. Kitchens fell, or shortly before, and it is apparent from the record that guests of the restaurant were also in the immediate vicinity. There is also no evidence how long the french fry was on the floor before Mrs. Kitchens slipped and fell. While the plaintiff wants us to infer that an employee of the defendant dropped the french fry, there is no evidence to support the inference. Moreover, there is no evidence that the french fry was in view of any employee or even that it could be seen. See Sharpton v. Great A & P Tea Co., 112 Ga. App. 283, 284 (145 SE2d 101). Further, there is also no indication that any employee of the defendant was in a position to see the french fry any more easily than was Mrs. Kitchens. Thus, a supposition that employees may have been in the area is not enough. “ ‘(T)here never has been a rule in this state that liability can be shown by nothing more than the fact that the defendant’s employee [s were] in the immediate area of the hazardous substance. In every case, the rule that states that proposition also requires a finding that the defendant’s employee [s] had “an opportunity to discover and remove the hazard,” which can only be shown, and in fact in the early cases was shown, by evidence that the hazard existed for a length of time sufficient for the defendant to discover the hazard and remove it. . . . [Cit.]’ ” Rush v. Food Giant, 183 Ga. App. 388, 392 (358 SE2d 919); accord Mitchell v. Food Giant, 176 Ga. App. 705, 709 (337 SE2d 353). Here, of course, there is no such evidence.

Further, Mrs. Kitchens admittedly had no idea how long the french fry may have been on the floor. Consequently, although she asserts that Restaurant Management’s general policy of constantly checking the floor for foreign substances and picking up or cleaning up anything on the floor is not sufficient to prove that the policy was followed on the night she fell, this factor does not overcome her inability to prove how long the french fry was on the floor. Food Giant v. Cooke, 186 Ga. App. 253, 254 (366 SE2d 781). In this case, Mrs. Kitchens’ evidence is only that she slipped and fell in the restaurant, and that after she fell she noticed that she had apparently slipped on a french fry. This sort of evidence has never been sufficient to support a recovery. “To presume that because a customer falls in a store the proprietor has somehow been negligent would make the proprietor an insurer of his customer’s safety, a status not imposed by the law of this state. Key v. J. C. Penney Co., 165 Ga. App. 176 (299 SE2d 895).” Kenny v. M & M Supermarket, 183 Ga. App. 225, 226 (358 SE2d 641). Accordingly, Mrs. Kitchens’ evidence is not sufficient to establish a genuine issue of fact on whether Restaurant Management had the requisite knowledge of the french fry, either actual or constructive. Consequently, Mrs. Kitchens has failed to establish one of the essential elements of her cause of action. Gateway Mgmt. Co. v. Sutton, 189 Ga. App. 296, 297 (375 SE2d 462). Accordingly, the first enumeration of error is without merit.

Decided July 13, 1989.

Dozier, Akin & Lee, A. Burton Lee, Liz Dozier, for appellant.

Jones, Cork & Miller, Bradley J. Survant, for appellee.

2. The appellant also enumerates as error that there was a question of fact whether the defendant had exercised reasonable care in inspecting the premises. This assertion can only be based upon the defendant’s failure to detect the french fry before Mrs. Kitchens fell regardless of how short a time it may have been there. “It is well settled that a proprietor is under no duty to patrol the premises continuously in the absence of facts showing that the premises are unusually dangerous. [Cits.]” Mazur v. Food Giant, 183 Ga. App. 453 (359 SE2d 178). Consequently, the failure to detect the french fry in the absence of any evidence of how long it was on the floor is not sufficient to create an issue of fact. Food Giant v. Cooke, supra; Mitchell v. Food Giant, supra. Thus, the second enumeration of error is also without merit, and summary judgment was properly granted to Restaurant Management. Alterman Foods v. Ligon, supra.

Judgment affirmed.

Been, P. J., and Benham, J., concur.


author: Pope, Judge.

text:
    A89A0883.
    CAMPBELL v. THE STATE.
    (385 SE2d 14)
    Decided July 13, 1989.

      John J. Martin, Jr., for appellant.

      Robert F. Mumford, District Attorney, Cheryl F. Custer, Assistant District Attorney, for appellee.
   Pope, Judge.

Defendant entered his guilty plea to the offense of simple battery on November 4, 1988. On November 15, 1988, the trial court sentenced defendant to twelve months probation and ordered him to pay a fine of $250, restitution in the amount of $1,000, $50 court costs and to refrain from' contact with the victim. On December 2, 1988, the defendant filed a motion for reconsideration of the trial court’s sentence. The trial court denied the defendant’s motion on December 20, 1988. Defendant filed his notice of appeal on January 18, 1989.

“ ‘(T)he only appealable order of record is the order of [November 15, 1988], . . . The appeal was not filed within 30 days from this order, however, but was filed subsequent to the denial of a motion for reconsideration of this order several months later. It has been repeatedly held that, unlike a motion for new trial [or] motion in arrest of judgment, ... a motion for reconsideration does not extend the time for filing a notice of appeal. (Cits.) . . . Thus we lack jurisdiction to entertain the appeal.’ Becker v. Fairman, 167 Ga. App. 708, 709 (1) (307 SE2d 520) (1983).” Alvin Lee Co. v. Garmon Elec. Contractors, 190 Ga. App. 159 (378 SE2d 384) (1989). See also Stonecypher v. State, 168 Ga. App. 507 (308 SE2d 639) (1983).

Appeal dismissed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1589.
    JOHNSON v. NORTHSIDE HOSPITAL.
    (385 SE2d 14)
   Deen, Presiding Judge.

Workers’ compensation. Johnson worked in appellee’s records department and received a compensable injury when files fell from the top of a filing cabinet, injuring her neck and shoulder. After treatment, she returned to work with instructions not to lift more than twenty pounds. She later went on maternity leave. Upon her return she was told to catch up on a work backlog by a certain date and to improve her supervisory skills. She was subsequently terminated for failure to meet these requirements. She claims that, because of her diminished capacity to work which was caused by her injury, she could obtain only a lower-paying job than the one that she held at Northside. She filed for a change of condition award, but it was denied by the administrative law judge, who found that no change in condition had occurred. The superior court affirmed by applying the “any evidence” rule. Held:

Decided July 13, 1989.

Marcus, Moskowitz & Associates, David H. Moskowitz, for appellant.

Goldner, Sommers & Scrudder, Susan V. Sommers, for appellee.

We have reviewed the entire transcript and find no error. The court below correctly applied the “any evidence” rule to this case. Owen of Ga. v. Waugaman, 185 Ga. App. 827 (366 SE2d 173) (1988).

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Benham, Judge.

text:
    A89A0774.
    WILLIAMS v. THE STATE.
    (384 SE2d 877)
   Benham, Judge.

A jury convicted appellant of burglary. He appeals from the denial of his motion for new trial. Finding no error, we affirm the judgment of conviction.

1. Appellant challenges the sufficiency of the evidence against him. The record shows that a neighbor of the victim identified appellant as the man she saw lying on the ground outside her condominium. The neighbor became suspicious and called the police, who apprehended appellant and another man as they fled from the area. Upon his arrest, appellant was found to have a ring in his mouth, and the victim identified as items taken from her home the ring and a gym bag appellant’s co-indictee had dropped when he saw the police. The victim testified that she thought they had entered her home through the locked back door leading to her patio, and that appellant’s entry into her home was not authorized. Appellant denied having committed the burglary. His co-indictee testified that he and appellant broke into the victim’s home by breaking a window. The evidence was sufficient for a jury to find appellant guilty beyond a reasonable doubt of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hockman v. State, 186 Ga. App. 190 (1) (366 SE2d 824) (1988).

2. Appellant contends that he was tried and convicted without the assistance of counsel and that he did not waive his right to counsel. We disagree. Clarke v. Zant, 247 Ga. 194 (275 SE2d 49) (1981), sets out the constitutional parameters for waiver of counsel. “ ‘A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ [Cit.] . . . [T]he trial judge has the responsibility of determining whether the accused has intelligently waived his right to counsel. ... [A] strict standard must be applied to waiver of counsel . . . and that constitutional waiver requires more than a comprehension of rights. There must also be a relinquishment of rights.” Id. at 196.

The record shows that appellant was initially represented by appointed counsel, the chief public defender, but that at the beginning of trial, appellant expressed to the trial court that he did not feel his attorney was acting in his best interest, and asked the court for another public defender or some time to hire a private attorney. After discussion, the trial court told appellant that he could proceed to trial with the public defender or he could represent himself, and that he had the right to an attorney but not an attorney of his choosing. Appellant’s attorney mentioned that appellant had been represented previously in the case by one of the assistant public defenders, but that she had been replaced by the chief public defender because appellant had been abusive to her. During the State’s case-in-chief, appellant again expressed to the court his desire to represent himself and said, “[I]f I’m going to get a fair trial I feel that I should represent myself. ...” The trial court asked appellant if he wanted to ask his own questions and let the public defender sit with him so he could ask the attorney about “any legalities that he wants to.” The court further asked appellant, “Is that what you want to do?” and appellant said yes. The trial court told appellant that his attorney was excellent and that it thought appellant was making a mistake, but that he had a right to self-representation and if he wanted to ask his own questions the court would let him do so. The court further reminded appellant that he was not trained in the law. Appellant said he understood that but would rather ask the questions himself. The trial court advised appellant that he “should not do that” and asked again if that was what he wanted to do, and appellant answered affirmatively. The trial court allowed appellant to proceed with the public defender at counsel table with appellant, and the record shows that the attorney did advise appellant on points of law and procedure.

We find no error on the ground asserted. “The record shows with convincing clarity that the defendant knowingly, understandingly and voluntarily waived the right of representation by counsel. [Cit.]” Tucker v. State, 173 Ga. App. 742 (2) (327 SE2d 852) (1985). “In an effort to protect [appellant’s] rights, the trial court appointed [an] attorney when requested by the accused; the . . . attorney discussed the case with [appellant], and was asked by the court to assist him in his self-representation. . . . [Appellant] made a decision to represent himself in this case. . . . This is not a case where a defendant stood trial alone with no assistance or protection of his rights. . . . Under the circumstances of this particular case, we find no error requiring a reversal of the conviction. . . .” Clarke, supra at 196-197. Appellant’s choice was made after he was made aware of his right to counsel and the dangers of proceeding without counsel. Id.

3. We reject appellant’s claim of ineffective assistance of counsel at trial. “When a criminal defendant elects to represent himself, either solely or in conjunction with representation or assistance by an attorney, he will not thereafter be heard to assert a claim of ineffective assistance of counsel with respect to any stage of the proceedings wherein he was counsel.” Mullins v. Lavoie, 249 Ga. 411, 412-413 (290 SE2d 472) (1982).

4. Appellant argues that the trial court erred in allowing his co-indictee to testify through an interpreter. His contention that there was no showing on the record that the witness needed an interpreter has no merit. We do not find that a specific objection was made on that issue, although the use of a translator was discussed. Assuming that the issue was properly raised, the record is clear that the witness, Kraiporn Dominic Supyen, was from Thailand and Thai is his native language. In an objection to Supyen’s testimony, appellant admitted that “Mr. Supyen can’t speak English.” The record further shows that he only “understands some English.” Under those circumstances, the use of an interpreter was not error.

5. Appellant’s contention that the State failed to reveal to the jury that appellant’s co-indictee testified against appellant in exchange for a favorable sentencing recommendation by the State is not meritorious. It is true that the State is “under a duty to reveal any agreement, even an informal one, with a witness concerning criminal charges pending against that witness,” and a failure to make such a disclosure is a due process violation. Jolley v. State, 254 Ga. 624 (5) (331 SE2d 516) (1985). “In order for there to be a reversal, however, there must be evidence that such information existed at or before trial, and that such information was actually withheld. [Cits.]” Potts v. State, 241 Ga. 67 (2) (243 SE2d 510) (1978). The record shows that at trial, the co-indictee testified that he had entered a guilty plea on the burglary charge that day and that no one threatened him or promised him anything in any way to get him to enter that plea; when appellant asked his co-indictee whether he had been told he would get probation or a lighter sentence in exchange for his testimony, the co-indictee said no. It is also clear that no recommendation for sentencing had been made at the time the testimony was given. In the absence of. evidence that an agreement had been made at the time of trial, we find that there was nothing to be revealed, and so no error occurred.

Decided June 28, 1989

Rehearing denied July 14, 1989

Lenzer & Lenzer, Thomas P. Lenzer, Robert W. Lenzer, for appellant.

Robert E. Wilson, District Attorney, Eleni A. Pryles, James W. Richter, Assistant District Attorneys, for appellee.

6. During the State’s case-in-chief, an officer testified that after appellant was arrested and read his Miranda rights, he told the officer that “he wanted to talk about [the burglary], to give it up, that he had some 50 other burglaries to give —” Appellant objected to the reference to the other burglaries, and the trial court instructed the jury not to consider the reference as evidence against appellant on the crimes for which he was being tried. Appellant contends that the reference to the other crimes placed his character in issue. We disagree. “ ‘ “It is no valid ground of objection to the admission in evidence of an incriminatory statement or confession made by the accused in a criminal case that the language indicated that the accused had committed also another and separate offense. (Cits.)” ’ ” Gaily v. State, 181 Ga. App. 906 (4) (354 SE2d 442) (1987). No error occurred.

7. Appellant complains that the trial court committed reversible error when it charged the jury that “[witnesses are presumed to speak the truth unless impeached in some manner provided by law.” Appellant seeks to have this court conclude that the charge is unconstitutional. We decline to do so. The United States Supreme Court has held that the charge is not unconstitutionally burden-shifting, and the Georgia Supreme Court has held that, while it “can be misleading and is of little positive value . . . [and its use should] be discontinued,” the charge is constitutional. Noggle v. State, 256 Ga. 383 (4) (349 SE2d 175) (1986). Its use in this case did not form the basis for reversible error.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


author: Carley, Chief Judge. Deen, Presiding Judge, Beasley, Judge,

text:
    A89A0165.
    ALLEN v. THE STATE.
    (385 SE2d 29)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of aggravated assault. A timely notice of appeal was filed and, on October 5, 1988, appellant’s appeal was docketed. On October 25, 1988, this Court granted the request of appellant’s counsel that the time for filing an enumeration of errors and brief be extended to November 14, 1988. No enumeration of errors or brief was filed within this extension of time. On February 3, 1989, this Court ordered that an enumeration of errors and brief be filed within five days. To date, there has been no compliance with this order, thus subjecting appellant’s counsel to citation for contempt of court.

We do not find that the failure of appellant’s counsel to file an enumeration of errors and brief authorizes the dismissal of appellant’s appeal. See Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985). After conducting our own independent review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Further, our independent examination of the record and transcript has revealed no error of law requiring reversal. Accordingly, appellant’s conviction is affirmed.

Judgment affirmed.

McMurray, P. J., Birdsong, Sognier, Pope and Benham, JJ., concur. Deen, P. J., Banke, P. J., and Beasley, J., dissent.

Deen, Presiding Judge,

dissenting.

This appeal was docketed in this court on October 5, 1988. Appellant did not file the required brief and enumeration of errors within 20 days of the docketing, but instead requested and obtained an extension to file such on November 14, 1988. Appellant, however, has failed to file any brief and enumeration of error, despite having been ordered to do so on February 3, 1989.

In Conyers v. State, 183 Ga. App. 591 (359 SE2d 454) (1987), this court declined to dismiss a criminal defendant’s pro se appeal, despite no enumeration of errors or brief having been filed. In Conyers, no extension of time to file was requested or granted, but this court did order the appellant to make the requisite filing after the original due date had passed. If four other judges stood ready to overrule Conyers, I would associate with this endeavor, as all should be fed out of the same spoon.

Nevertheless, the case under consideration differs from Conyers in that the appellant is represented by counsel and an extension to file was requested and granted. Because over seven months have passed since a second or extended due date for filing a brief and enumeration of errors (the first order to file being included in the docketing notice), the appellant’s failure to file works a forfeiture of his appeal. “A convicted party can, by his own conduct or by his conduct in concert with that of his attorney, forfeit his appeal. If a convicted party by his own conduct, or by his conduct in concert with that of his attorney, purposefully delays the appeal of his conviction to his own advantage, he forfeits appeal and review of his conviction on the merits by an appellate court.” State v. Denson, 236 Ga. 239, 240 (223 SE2d 640) (1976). Our State Supreme Court has held that where appellant has counsel, the latter may speak exclusively for the former, and his conduct likewise would seem to be the conduct of appellant. The appeal from the trial court should be dismissed.

I am authorized to state that Presiding Judge Banke joins in this dissent.

Beasley, Judge,

dissenting.

This case requires dismissal. On February 3 this Court, without another extension of time having been sought by appellant and after the original extension was granted, sua sponte further extended the time for filing. It “ordered that appellant file an enumeration of errors and brief within five days hereof, failing which the appeal may be dismissed without further notice.”

No enumeration of errors or brief has been filed. The appeal must be dismissed in that it has been abandoned. There is nothing to review.

The Court has itself pursued the appeal and has fashioned an enumeration of error raising the general grounds and ruled on it. Such action is not required. It runs counter to this Court’s function to review errors enumerated by the appellant. The Court applied the principle in Price v. State, 187 Ga. App. 239, 240 (370 SE2d 6) (1988), which was appellant’s second appeal. In reviewing the record of appellant’s first appeal, the Court found “that he did not properly invoke appellate jurisdiction as to the issue of the sufficiency of the evidence to authorize his convictions. The only issue that appellant raised was with regard to the weight of the evidence. Accordingly, not only was this court not required to give consideration to the sufficiency of the evidence on appellant’s first appeal, it was without authority to do so. [Cit.]”

Even in appeals which are pursued, the Court will not consider alleged errors argued but not enumerated, Hibbert v. State, 146 Ga. App. 887, 888 (3) (247 SE2d 554) (1978), or errors enlarged in the brief, Tucker v. State, 173 Ga. App. 742, 745 (3) (327 SE2d 852) (1985), or errors argued for the first time in a supplemental brief, McCormick v. State, 163 Ga. App. 267 (293 SE2d 35) (1982), or errors not properly raised in the trial court, Payne v. State, 171 Ga. App. 150 (1) (318 SE2d 826) (1984), Bateman v. State, 186 Ga. App. 21, 22 (366 SE2d 372) (1988), or errors enumerated but not argued, Quick v. State, 166 Ga. App. 492, 493 (1) (304 SE2d 916) (1983).

I am authorized to state that Presiding Judge Banke joins in this dissent.

Decided July 14, 1989.

Charles H. S. Lyons III, for appellant.

Sam B. Sibley, Jr., District Attorney, for appellee.


author: Beasley, Judge.

text:
    A89A0252.
    BARBER v. THE STATE.
    (385 SE2d 15)
   Beasley, Judge.

Defendant appeals his conviction of armed robbery, OCGA § 16-8-41.

During the trial, defendant and Lewis, a co-indictee, were identified as being at the scene of the crime, a convenience store. Defendant asserted that he had no prior knowledge that Lewis was going to rob the store, that he acted out of fear, and never possessed the weapon used to accomplish the robbery. At the close of the State’s evidence, defendant attempted to call Lewis in order to examine him with regard to his prior statement to the committing magistrate which tended to exonerate defendant as a participant in the crime. Lewis had previously pled guilty but had not been sentenced as the State anticipated calling him as a witness based on Lewis’ statements to the police implicating defendant instead. He was not called by the State. When defendant sought to call Lewis as his witness, Lewis refused to testify.

At a hearing out of the presence of the jury, Lewis reiterated his reliance upon the protections of the Fifth Amendment to the United States Constitution. It was brought out that when interviewed by the prosecutor prior to the trial, Lewis gave a different version of the events from those he previously gave to the police. At that point in the interview, the Assistant District Attorney warned Lewis of the penalties for perjury and of the maximum sentence he could receive for the charged offense. During the hearing, Lewis stated that from “day one” he did not want to testify and explained that the interview had no effect on his decision.

The trial court determined that because Lewis had not been sentenced on his guilty plea entered just before this trial, he had not waived his Fifth Amendment privilege and therefore he would not be compelled to testify.

1. Defendant contends that the court erred in not allowing him to examine Lewis in front of the jury with regard to his conversation with the district attorney, since Lewis had not invoked the privilege as to that particular matter. Defendant sought to show by this evidence that the reason co-defendant Lewis refused to testify as his witness was the negative influence of the district attorney. This would tend to prove, he argued, that Lewis would have corroborated defendant’s testimony that he was not involved in the armed robbery. The jury already knew of Lewis’ guilty plea. Defendant wanted to dispel any inference that there were two guilty parties.

Decided July 14, 1989.

John J. Martin, Jr., for appellant.

Robert F. Mumford, District Attorney, William F. Todd, Jr., As sistant District Attorney, for appellee.

The trouble with appellant’s position is that even if the Fifth Amendment did not apply to this testimony either as a matter of law or because it was not invoked in regard to it, the proffered evidence did not support the fact for which it was being elicited. Defense counsel had asked whether the discussion Lewis had with the assistant district attorney influenced his decision whether to testify or not. Lewis replied: “I said from day one I did not want to testify. When you [defense counsel] came up to the jail I was not going to testify. I told him I did not want to testify. I’ve entered my plea. And I figured that was it, the case was closed.” The court then asked: “It’s been your intention all along that you didn’t want to testify?” Lewis answered: “Yes.”

Since the evidence would not tend to show even inferentially that co-defendant would have exonerated defendant, it was not relevant and the court did not err in excluding it.

2. Defendant was faced with the lack of the co-defendant’s testimony that defendant was not involved. He then sought to introduce the testimony of the magistrate to the effect that Lewis had said at the committal hearing, after being advised of his rights and of the charge: “I’d just like to say these other fellows didn’t have anything to do with it.”

Defendant attempts to distinguish Timberlake v. State, 246 Ga. 488, 492 (1) (271 SE2d 792) (1980), but we perceive no distinction which would render admissible the testimony about the co-defendant’s unsworn, unrecorded, later-contradicted statement.

3. The trial court’s refusal to grant a mistrial after the jury took only ten minutes to return its guilty verdict is enumerated as error. The length of time taken by the jury to reach its unanimous verdict is no indication of its failure to adhere to the trial court’s instructions. Jury misconduct must be shown. Mullis v. State, 248 Ga. 338, 341 (10) (282 SE2d 334) (1981). There was no error in denying the motion for mistrial.

Judgment affirmed.

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