author: Beasley, Judge. McMurray, Presiding Judge,

text:
    A97A2081.
    SCHLUTER v. PERRIE, BUKER, STAGG & JONES, P.C.
    (498 SE2d 543)
   Beasley, Judge.

Perrie, Buker, Stagg & Jones, P.C., a law firm, sued its client John Schluter to recover unpaid attorney fees. Schluter complained the amount of work performed was excessive and in part unauthorized. The trial court granted the firm summary judgment. The issue is whether the evidence is undisputed that the work billed for fell within the parameters of the parties’ agreement.

Schluter and Richard W. Jones, a principal in the firm, executed a letter agreement on the firm’s letterhead authorizing Jones to prepare the documents necessary for a private placement offering of limited partnership interests in a new dining and entertainment club. It stated: “The legal work necessary for the proposed offering will entail the preparation of a private placement memorandum, preparation of subscription documents, preparation of appropriate regulatory filings, preparation of amendment of limited partnership agreement, partnership organization and cleanup work and other collateral work.” Schluter agreed to pay invoices which would consist of expenses and fees calculated on an hourly basis for the services performed. The agreement set forth an hourly rate of $140 for Jones’ time. It stated as “estimates” that the project would take about two weeks and that the fees would range from $12,000 to $18,000. The agreement explained that the estimates were based on Jones’ experience in matters of the same nature, did not constitute any guarantee, and could be greater. Within four weeks Jones, with the assistance of a firm associate, prepared and delivered the documents to Schluter’s son and business partner, Douglas Schluter, who had the documents copied and bound. The firm submitted invoices to Schluter which amounted to $17,579.50 in fees and $1,559.94 in expenses. Schluter refused to pay more than $10,203.85. The firm brought suit in two counts, open account/breach of contract and quantum meruit, and sought in addition attorney fees for bringing the suit. The court granted summary judgment on the open account/breach of contract claim.

1. “An action on open account is a simplified pleading procedure where a party can recover what he was justly and equitably entitled to without regard to a special agreement to pay such amount for goods or services as they were reasonably worth when there exists no dispute as to the amount due or the goods or services received. An action on open account may be brought for materials furnished and work performed. However, if there is a dispute as to assent to the services or to acceptance of the work done or as to what work was to be performed and the cost, then an action on open account is not a proper procedure. A suit on account must be based either on an express or an implied contract.”

Schluter has challenged the firm’s billings, which takes the case outside the simplified parameters of an action on open account. The firm’s claim must proceed as a breach of contract action.

Schluter urges that factual disputes exist as to four matters. First,' he claims the firm agreed to keep the fees and expenses in the low end of the range identified in the agreement. This contradicts the written agreement which provides Jones could not promise the fees would even stay within the estimated range. Similarly, Schluter’s argument that the parties agreed the project would take no longer than two weeks is inconsistent with the written terms stating the two-week figure was only an estimate and the project might take longer.

But oral understandings cannot be admitted to contradict written terms. “Well-established Georgia law provides that matters outside a contract cannot be used to vary or explain the unambiguous terms of an agreement. While, generally, an ambiguity in a contract may be explained by parol evidence, parol evidence is inadmissible to add to, take from or vary a written contract. (OCGA §§ 13-2-2 (1); 24-6-1; and 24-6-2.) Where the contract is complete on its face and the evidence offered to explain the ambiguity contradicts the terms of the written instrument, it should not be admitted. Moreover, parol evidence of a mere understanding arrived at subsequent to the contract as to the meaning of the prior writing is inadmissible.”

Second, Schluter claims the tax research and analysis exhibited in the documents “was neither necessary nor appropriate” and the extent of it was unauthorized. Schluter’s personal testimony that the detailed tax analysis was excessive legal work is not competent evidence for the reason that he lacks a law degree. The law presumes that lawyers perform legal services in an ordinarily skillful manner. “This presumption remains with the attorney until the presumption is rebutted by expert legal testimony; otherwise, the grant of a summary judgment in favor of the attorney is proper. Should this presumption be rebutted by expert legal testimony there is presented for the jury a question of fact.” Findley v. Davis applied this presumption where the client claimed the fees exceeded the value of the services rendered and expenses incurred.

Aside from this presumption, Schluter’s personal opinion does not provide a legal evidentiary basis for his defense that the legal tax work was inflated. To prove such requires the opinion of a legal expert in the field. The firm submitted the affidavit of Jones, who was qualified to give an opinion because he had practiced law for 14 years in connection with over 60 similar securities offerings. Because it was his opinion that the work was reasonable and necessary, Schluter’s failure to present contrary competent testimony dissolved this defense.

Schluter’s other two allegations of factual dispute have merit. First, he testified that three meetings with “Mr. Schluter” appearing on the invoices did not take place, and as to two of them, he was out of town. In response, the firm on the day before the hearing filed an unsworn “affidavit” from Jones, who sought to explain that the invoiced meetings were with Schluter’s son, Douglas Schluter. Because unsworn statements are not regarded as affidavits and do not constitute competent evidence to support a motion for summary judgment, and because the document was filed later, the trial court correctly struck and did not consider it. Moreover, two of the disputed billing entries on successive days each refer to a meeting with “Mr. Schluter,” revision of a partnership agreement, conference call with “Mr. Schluter,” meeting with “Douglas Schluter,” and work on a memorandum. This would imply that there were two different meetings each day with two different individuals. Because Schluter testified he attended no such meetings, a disputed issue of fact exists.

Second, Schluter points to hours worked by “CVS,” apparently an associate at the firm, and claims he never authorized the firm to allow anyone other that Jones to work on the matter. The agreement is ambiguous on this issue. It is on the firm’s letterhead but is signed by Jones without any express designation that he is signing on behalf of the firm. The agreement refers to the billing policies of the firm but states “I will strive to complete the preparation of the documents necessary to effect your proposed offering as expeditiously as possible at a fair and reasonable cost to you.” The agreement refers only to Jones’ hourly rate. Ambiguities in agreements are construed against the drafter. In light of Schluter’s testimony that he did not intend to authorize anyone besides Jones to work on the matter, the fact is disputed. This obviates a need to determine whether evidence from “CVS” was necessary to prove the work attributed to her. Her affidavit was struck as being filed too late.

The disputed issues of fact precluded summary judgment on Count 1, and thus, the granting of it was error.

2. There is no ruling to review in connection with Schluter’s enumeration as error the grant of summary judgment on Count 2, the quantum meruit claim. The firm moved for summary judgment only on Count 1, the claim on an account, and the trial court awarded summary judgment on that count alone.

Judgment reversed.

McMurray, P. J., concurs specially. Smith, J, concurs in the judgment only.

McMurray, Presiding Judge,

concurring specially.

Although I concur in the Court’s judgment reversing the trial court’s judgment granting Perrie, Buker, Stagg & Jones, P.C.’s (“the firm”) motion for summary judgment, I must write separately as I do not agree with my colleague’s reasoning and the limited holding that genuine issues of material fact remain only as to (1) whether the firm improperly (without authority) charged John Schluter for work that was allegedly performed by an associate attorney, and (2) whether the firm overcharged John Schluter for three meetings with attorney Richard W. Jones. While I agree that respective questions of law and fact remain as to these issues, I would reverse the trial court’s summary judgment in its entirety because the record reveals fatal probative defects (hearsay and double hearsay) in the firm’s only proffer of damages — billing sheets and invoices attached to attorney Richard W. Jones’ unimpeachable affidavit. These disputed materials do not prove, as a matter of law, any part of the firm’s claim for past-due attorney fees under the attorney-client engagement letter {attached hereinafter as an Appendix) which attorney Richard W. Jones prepared and John Schluter executed. See Bryan v. Fed. Express Corp., 180 Ga. App. 163, 164 (3) (348 SE2d 705).

1. Proof of Damages on Summary Judgment. As a plaintiffmovant on summary judgment for breach of contract damages, the firm must show that there remains no genuine issue of material fact as to the amount of John Schluter’s alleged debt. See Bryan v. Fed. Express Corp., 180 Ga. App. 163, 164 (3), supra. Attempting to meet this burden, the firm filed the affidavit of attorney Richard W. Jones, who deposed that he “was the billing attorney for [John] Schluter’s accounts that he] was responsible for reviewing the time spent and costs [incurred in this matter, and that an] account was maintained for [John] Schluter. . . .” Attorney Jones also deposed that “all time and costs contained in [John Schluter’s account] were reasonable and necessary [and that]” John Schluter’s account balance is reflected in “invoices” attached to his affidavit. This exhibit includes billing sheets comprising lists of John Schluter’s unpaid expenses and vaguely annotated time entries reflecting time for work allegedly performed by attorney Jones and an associate attorney, who is identified in the firm’s billing sheets as “CVS.”

The problem with the firm’s proffer is that, absent an opportunity for John Schluter to test the reporting attorneys’ entries via cross-examination (Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606)), the entries are hearsay, “and hearsay, even when admitted into evidence without objection, lacks probative value to establish any fact. Howell Mill/Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169, 171 (2) (390 SE2d 257).” Mitcham v. Blalock, 214 Ga. App. 29, 31 (2), 32 (447 SE2d 83), cert, denied, 214 Ga. App. 906. Indeed, the value of cross-examining attorney Jones is punctuated in the case sub judice by an absence of proof regarding his personal knowledge of the work that was purportedly performed by associate attorney “CVS.” Also telling with regard to the billing sheets’ probative shortage is John Schluter’s opposing affidavit challenging three entries for meetings which (according to John Schluter) never occurred. While the firm attempts to explain away this proof (in its brief) by arguing that these time entries must have been for meetings with John Schluter’s son, Douglas Schluter, the point remains that evidentiary confidence cannot be placed in such self-serving billing entries without, at the very least, an opportunity to cross-examine the reporting professionals.

Under these circumstances, and recognizing the unimpeachable nature of affidavits such as those proffered on summary judgment in the case sub judice, I cannot go along with my colleague’s tacit recognition that most of the time entries in the firm’s billing sheets constitute irrefutable proof of the work reported therein. Saying that any of these billing entries proves the performance of the matters reported therein ignores this Court’s directive in Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402, supra, that vaguely annotated billing statements must be tested by cross-examination (or at least a proffer of cross-examination) before such entries constitute proof of the execution, function or substance of any task. See also Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5) (470 SE2d 467), cert. denied, 220 Ga. App. 914, and Mitcham v. Blalock, 214 Ga. App. 29, 31 (2), supra. Compare Ins. Co. of North America v. Allgood Elec. Co., 229 Ga. App. 715 (494 SE2d 728), where a majority of this Court held that a client’s activities with her attorneys before trial authenticated her personal knowledge of work that was reportedly performed by these attorneys, as well as several other out-of-court declarants, in billing sheets that were admitted into evidence at trial.

2. Georgia’s Business Records Exception. Because the case sub judice must be remanded for further proceedings in the trial court and because the firm appears to proffer its billing sheets under Georgia’s Business Records Exception to the hearsay rule (OCGA § 24-3-14) by having attorney Jones depose that he “was the billing attorney for [John] Schluter’s account” (Peachtree North Apts. Co. v. Arkhora Assoc., 140 Ga. App. 20, 21 (2) (230 SE2d 83)), I find it necessary and appropriate to resolve confusion raised by Santora v. American Combustion, 225 Ga. App. 771, 774 (3), 775-776 (485 SE2d 34), and N.D.T., Inc. v. Connor, 196 Ga. App. 314, 315 (6), 316 (395 SE2d 901), regarding the admissibility of attorney billing sheets under this state’s Business Records Exception to the hearsay rule. Compare Oden v. Legacy Ford-Mercury, Inc., 222 Ga. App. 666, 669 (3) (476 SE2d 43).

“Georgia’s Business Records Exception is not a rule subject to indifferent statutory application, but is a venerable exception ascending from principles of necessity and trustworthiness. Fielder, Bros. & Co. v. Collier, 13 Ga. 496, 499. See OCGA § 24-3-1’s requirement that ‘(h)earsay evidence is admitted only in specified cases from necessity.’ OCGA § 24-3-1 (b). Also see 5 Wigmore, Evidence §§ 1517-1561 (Chadbourn rev. 1974).

“In Fielder, a case involving proof of a volume of cotton shipped from Apalachicola, Florida, to Liverpool, England, Chief Justice Joseph H. Lumpkin (writing for the court) reasoned that a large factorage and commission house’s shipping records, while hearsay, were nonetheless the best evidence of the transaction, when kept in the regular course of business, because it would have been impractical and unreasonable to expect ‘(t)he weighers, wharfingers, and numerous subordinates who handled this cotton (to recall) the multitude of transactions thus occurring every day.’ Id. at 499. The court also reasoned that the fiduciary relationship between the shipping agent and the defendant rendered the shipping records trustworthy. Id. at 500.” Ins. Co. of North America v. Allgood Elec. Co., 229 Ga. App. 715, 722-723 (b), supra (dissenting opinion). I do not believe similar logic applies in the case sub judice.

Unlike the out-of-court declarants in Fielder, the firm’s lawyers are neither disinterested recording agents nor clerks, “weighers,” or “wharfingers.” Attorney Jones and associate attorney “CVS” are but two lawyers who purportedly reported the discharge of professional services for John Schluter, but who now expect payment for those purported services without having to answer for their billings on cross-examination. While it may be inconvenient for attorney Jones and “CVS” to appear under oath for cross-examination, there is no indication in the case sub judice that, like “the weighers, wharfingers, and numerous subordinates who handled . . . cotton” in the Fielder case, it would be “impractical and unreasonable” for these professionals to appear at trial and recall the services which they allegedly charged against John Schluter’s account. Billings for professional services, at rates exceeding $100 per hour, simply do not compare to the type of work or “multitude of transactions” contemplated in Fielder. Moreover, unlike the fiduciary relationship in Fielder between neutral parties that rendered the shipping records in question trustworthy, the action in the case sub judice demonstrates that any remaining fiduciary relationship between the firm and John Schluter cannot lend credibility to the billing sheets which the firm now proffers in support of its motion for summary judgment. Under these circumstances, I find no reason of necessity which relieves the two lawyers in the case sub judice of their duty to answer, before a jury, for the specific billings which the firm now proffers in attorney Jones’ affidavit. As set forth in the dissent in Ins. Co. of North America v. Allgood Elec. Co., 229 Ga. App. 715, 723, supra, “I would adhere to the principle initially recognized in Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402, supra, that possible deficiencies, suppressions and sources of error which may lie within attorney billing records are tested best by confrontation and cross-examination. It thus appears elemental to me that recording legal services is not merely a matter of mechanical routine which, alone, establishes the indicia of reliability required for admission of records under Georgia’s Business Records Exception. The recording of time and expenses by an opposing party’s agent or legal representative, in my view, necessarily involves an account of judgment which, when embraced in a business memorandum, is not admissible under OCGA § 24-3-14. See Wesley v. State, 225 Ga. 22, 23 (2) (165 SE2d 719); Knudsen v. Duffel-Freeman, Inc., 95 Ga. App. 872, 875 (2), 879-881 (99 SE2d 370). I, therefore, believe that Georgia’s Business Records Statute, as suggested in Santora v. American Combustion, 225 Ga. App. 771, 774 (3), 775-776, supra, and N.D.T., Inc. v. Connor, 196 Ga. App. 314, 315 (6), 316, supra, must ‘not go to the extent of rendering admissible self-serving memorandums of (the) kind [identified in the case sub judice in attorney Jones’ affidavit]. Young v. Landers, 31 Ga. App. 59 (119 SE 464). A contrary ruling would render admissible files of correspondence and all kinds of writings if made by one in connection with the operation of a business.’ Maryfield Plantation v. Harris Gin Co., 116 Ga. App. 744, 747 (4) (159 SE2d .125).” Ins. Co. of North America v. Allgood Elec. Co., 229 Ga. App. 715, 723, supra.

Appendix.

PERRIE, BUKER, STAGG & JONES, P.C.

Attorneys At Law

115 Perimeter Center Place. Suite 170

Atlanta, Georgia 30346

Richard W. Jones (4041 804-0500 FAX (404) 804-0509

March 17, 1993

Mr. John A. Schluter

Landmark: Partners, L.P.

659 Peachtree Street, N.E. Atlanta, Georgia 30308

Re: Private Placement Memorandum

Dear John:

It is a pleasure for me to have the opportunity to work with you on the proposed offering of limited partnership interests in your new dining/encenainmenc club concept. I am a firm believer in establishing with clients at the outset a mutual understanding of the business details of the attomey/client relationship. Accordingly, I would like to take this opportunity to discuss the procedures and policies this firm follows in rendering professional services.

. I will smve to complete the preparation of the documents necessary to effect your proposed offering as expeditiously as possible at a fair and reasonable cost to you. My experience is that the normal time required to complete an offering of securities is usually about two weeks from start to finish, however, I understand that you are under significant time pressure to complete your offering as soon as possible. Accordingly, I will strive to complete your offering in an expedited time frame in order to accommodate your needs. I trust, however, that you wiii understand that if changes which you or others initiate or matters of timing over which I have little or no control cause delays, this time frame may be modified.

The legal work necessary for the proposed offering will entail the preparation of a private placement memorandum, preparation of subscripción documents, preparation of appropriate regulatory filings, preparation of amendment of limited partnership agreement, partnership organization and cleanup work and other collateral work. Based on my prior experience, the legal fees for full Regulation D offerings involving limited partnerships are approximately 512,000 to 518,000. If the partnership agreement is prepared by you or your agent and it does not require any significant work on our part to comply with appropriate tax considerations, this range will be reduced by S2.000 to 53,000. The firm's policy is to bill stricdy on an hourly basis for services rendered.

Mr. John A. Schluter

March 17, 1993

Page 2

The estimates noted above are based on my prior experience of the time involved in matters of this nature; however, I cannot guarantee that the total costs will not exceed these estimates. The firm will send you a detailed monthly statement for services rendered. Because of the intensity of the legal effort necessary at the outset of a securities matter, we ask that all new clients initiate the relationship through the payment of a retainer. This is especially true in this case where we will have to set aside other matters to meet your time schedule. Accordingly, we feel that a 53,000 retainer is appropriate. Fees and expenses will be charged against your retainer until it is used up. The second payment for all accrued fees and expenses will be due at the time of delivery of the private placement memorandum. Thereafter, we will simply bill you through our normal monthly billing process, with payment due upon receipt. You understand, of course, that if the offering is not consummated for any reason, the legal fees and expenses incurred are not contingent and would be payable in the course of our monthly billing cycle. We charge interest on any balance outstanding over thirty (30) days.

When it is necessary for the firm to advance expenses on your behalf, such as long distance telephone calls, travel expenses, photocopying, and filing fees, those expenses will be added to the firm's monthly statement so that each month you will have a detailed summary of the legal services rendered and expenses advanced on your behalf. When it is appropriate to do so, the firm may ask you to pay costs directly to third parties. Tne firm will not incur any significant out-of-pocket expenses without first discussing these with you.

My hourly rate is S140 per hour. This rate may be modified from time to time, although at this moment I do not anticipate any changes. The monthly statements to you will reflect the rates in effect at the time of billing.

If you have any questions on these matters or if you have any questions regarding billing matters in the future, please feel free to contact me. Any questions you may have with respect to billing computation may be discussed with the firm’s office administrator, Ms. Lisa Stansberry. If you agree to the proposed terms of engagement as described herein, please sign the enclosed copy of this letter on the signature line indicated and return it to this office. I am prepared to proceed immediately on the offering and will do so when you indicate that you are' ready to go forward, upon receipt of the retainer discussed above.

Decided February 26, 1998.

Holland & Knight, Elizabeth C. Helm, for appellant.

Perrie, Buker, Stagg & Jones, Robert L. Bunner, for appellee.

Mr. John A. Schluter

March 17, 1993

Page 3

I am looking forward to working with you and I hope this will lead to a long-term, mutually rewarding relationship.

       (Citations omitted.) Watson v. Sierra Contracting Corp., 226 Ga. App. 21, 27 (b) (485 SE2d 563) (1997) (physical precedent).

       See Loveless v. Sun Steel, 206 Ga. App. 247, 248-249 (1) (424 SE2d 887) (1992).

       (Citations and.punctuation omitted.) Choice Hotels Intl. v. Ocmulgee Fields, 222 Ga. App. 185, 186-187 (1) (474 SE2d 56) (1996).

        Roberts v. Langdale, 185 Ga. App. 122, 123 (1) (363 SE2d 591) (1987).

        Hughes v. Malone, 146 Ga. App. 341, 349 (247 SE2d 107) (1978); see Findley v. Davis, 202 Ga. App. 332, 337 (2) (b) (414 SE2d 317) (1991), rev’d on other grounds, 262 Ga. 612 (422 SE2d 859) (1992); Rose v. Rollins, 167 Ga. App. 469, 471 (2) (306 SE2d 724) (1983).

       202 Ga. App. 332.

       See generally Howard v. Walker, 242 Ga. 406, 408 (249 SE2d 45) (1978); Findley v. Davis, supra, 202 Ga. App. at 337 (2) (b); Graves v. Jones, 184 Ga. App. 128, 129-130 (1) (361 SE2d 19) (1987).

       See Huiet v. Schwob Mfg. Co., 196 Ga. 855, 859 (2) (27 SE2d 743) (1943); Barrett v. Wharton, 196 Ga. App. 688, 689 (396 SE2d 603) (1990).

       See Corry v. Robinson, 207 Ga. App. 167, 169-170 (2) (427 SE2d 507) (1993).

        Gram Corp. v. Wilkinson, 210 Ga. App. 680 (1) (437 SE2d 341) (1993).

       This is so because hearsay evidence is defined as “that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” OCGA § 24-3-1 (a). And while this definition encompasses many classes of proof, it is fundamental that hearsay, such as that proffered in the firm’s billing sheets, follows when a witness speaks to the truth of something outside the scope of his or her personal knowledge. Green, Ga. Law of Evidence (4th ed.), §§ 217, 226; 5 Wigmore, Evidence, § 1361 (Chadbourn rev. 1974).


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A97A2131.
    McNEAL et al. v. DAYS INN OF AMERICA, INC. et al.
    (498 SE2d 294)
   Birdsong, Presiding Judge.

Roy David McNeal checked into the Days Inn in Rome, Georgia, on May 9, 1994, after he and two co-workers had driven from Jacksonville, Florida, to perform work in that city. After checking in at 10:00 p.m., the men walked to a next-door Shoney’s restaurant for dinner. They walked back to the Days Inn at about 10:30 p.m., and they were attacked in the hotel parking lot by at least four men who had followed them into the parking lot. McNeal’s left eye socket, cheek bone and nose were broken, and his injuries are permanent.

McNeal and his wife filed suit against Days Inn of America, Inc. and Bhaga Patel and Pankajkumar Patel, Ltd., a general partnership d/b/a Days Inn of Rome, Georgia, on grounds that defendants were negligent in failing to use ordinary care in keeping its premises safe for guests and failing to provide adequate security after knowing of prior similar incidents or assaults upon its guests, and that their negligence was the proximate cause of McNeal’s injuries and damages.

The trial court granted summary judgment to defendants, while reciting the several criminal incidents which had occurred on the property, including one which began at a nearby housing project. The trial court also recited as relevant to its award of judgment to the defendants the fact that defendants had hired a security guard but his working hours were only from 11:00 p.m. until 5:00 a.m. and he had not arrived on the hotel premises when the attack on McNeal took place, and the fact that this guard had very little formal training in the security field and had a past criminal record himself and was charged with the offense of assault and battery upon a fellow employee while employed as a security guard for the motel. The trial court also recited evidence by affidavit in which an expert affied that a security guard should have been on duty no later than 9:00 p.m. for the safety of the guests, and that the motel should have installed a video camera and monitoring system for the parking lot where this attack on plaintiff occurred. The trial court also recognized that a proprietor who has knowledge of prior burglaries must understand that it is not unreasonable to anticipate the risk of personal harm to a tenant which might occur in a burglary. Despite the fact that plaintiffs cited a history on the premises of vandalism, trespassing, a prior assault on a security guard as well as the others stated above, the trial court refused to “extend” this foreknowledge of criminal acts to the brutal attack which occurred in this instance, for “[t]here was no attempt of robbery but the incident appeared to be something that could have been a retaliation for what transpired off the motel property.” For the latter speculation, no evidence is provided by the trial court except the evidence that immediately before McNeal walked into the motel parking lot, the occupants of a passing truck blew their horn and he threw up his hand as if to wave, thinking they might be someone he knew. The trial court concluded the plaintiffs’ injuries “did not flow from any wrongful act or omission attributed to the defendants and could not have reasonably been expected to have resulted therefrom. Had the motel guests gotten in their automobile, driven some distance from the motel property, had some incident with another driver, returned to the property of the motel, was followed by the other driver who attacked the motel guest while on motel property, [t]his type of situation is not foreseeable and this [trial] [c]ourt does not extend the liability of the defendants to the incident involved herein.” The trial judge also reasoned that the motel could not be liable for the attack on its premises because other guests came to McNeal’s aid and ran off the attackers.

Plaintiffs appeal. Held:

The trial court erred in taking this case from a jury and in deciding factual questions based on its own speculation that this attack on defendants’ premises “could not have reasonably been expected to have resulted” from an omission by the defendants. The law does not require that the owner of premises must be able to “expect” a certain incident to occur. Nor is there any relevance to the factual issues in this case of the trial court’s speculation that liability would not extend to these defendants because such an attack on hotel premises is not foreseeable in a hypothetical case wherein, a hotel guest got in his car, “[drove] some distance from the motel property, had some incident with another driver, returned to the property of the motel, was followed by the other driver who attacked the motel guest while on motel property.”

The trial court erred in holding, as a matter of law and beyond any genuine issue of material fact, that the assault in this case was not foreseeable and that there was no proximate cause between defendants’ acts or omissions and David McNeal’s injuries. The plaintiffs showed evidence that several criminal acts had previously occurred in this Days Inn parking lot and its other premises, including the fact that several persons were arrested in the Days Inn parking lot for engaging in a violent melee which began in a nearby housing project. Plaintiffs also produced expert testimony that in light of prior criminal incidents the security provided by the hotel was inadequate, particularly including the fact that no security guard came on duty until 11:00 p.m. and no video camera and monitoring equipment existed either to deter such criminal acts or to protect hotel guests from their occurrence.

There is no logic or reason in the main part of the trial court’s judgment analysis whereby it removed this case from a jury. In particular, there is no logical relation between the undisputed facts of this case and the trial court’s purely speculative conclusion about the hotel’s liability in a “hypothetical” case wherein a hotel guest drove some distance away, got into a ruckus and brought it home with him to the hotel. This speculation is not supported by evidence. Moreover, such speculation or inference is improper inasmuch as on defendants’ motion for summary judgment, the trial court was required to construe all evidence in favor of the plaintiffs (Abdalla v. DDBC, Inc., 216 Ga. App. 667 (455 SE2d 598)); the trial court is not permitted to ignore the plaintiffs’ evidence on defendants’ motion for summary judgment, for the jury alone is permitted to make such findings of fact and credibility. Moreover, that this case contains issues of fact to be decided only by a jury is proved by the fact that fine factual distinctions as to the types of previous crimes committed on the premises must be so extensively argued and counterargued, disputed and debated by the parties so as to show no similarity or warning therein and by the fact that the trial court concluded that such previous occurrences must have led the defendants to “expect” this particular attack.

In Walker v. St. Paul Apts., 227 Ga. App. 298, 300 (489 SE2d 317) we held that if a proprietor has reason to anticipate a criminal attack, he has a duty to exercise ordinary care to guard against harm from dangerous characters. The incident causing the injury must be substantially similar in type to the previous criminal activities on or near the premises so that a reasonable person would take ordinary precautions to protect his invitees against the risks posed by that type of activity.

In Walker v. St. Paul Apts, we held as to foreseeability of a brutal criminal attack, that it is improper for the trial court, by refusing to admit certain evidence, to distinguish between criminal attacks involving brutal physical assault and those which did not, for this incorrectly suggests the landlord could lawfully be required to safeguard his tenants only from persons who commit criminal acts without accompanying physical harm. It is true that the prior criminal activity must be substantially similar to the crime in question, but it is not required to be “identical”; it is required only that the prior incident be sufficient to attract the landlord’s attention to the dangerous condition which resulted in the physical assault on McNeal. Walker v. Sturbridge Partners, 221 Ga. App. 36 (470 SE2d 738), aff’d, 267 Ga. 785 (482 SE2d 339).

The question of reasonable foreseeability of a criminal attack as well as the question of what is “ordinary” care on the defendant’s part are generally for a jury’s determination rather than for summary adjudication by the courts. Walker v. St. Paul Apts., supra; Sturbridge Partners, supra at 786; Lay v. Munford, Inc., 235 Ga. 340, 341 (219 SE2d 416). There may have been fewer previous criminal incidents in this case than there were in Walker v. St. Paul Apts, but we do not judge these cases on the basis of mere numbers or severity of prior criminal acts. What matters is the foreseeability of the potential for a criminal act on the premises, even if it began elsewhere. The jury must decide whether the prior incidents would have forewarned the defendants of a dangerous condition of serious crime in the area and on the premises and of the risks posed by dangerous characters. Id. It is not required that the same severity of criminal attack on a person must have previously occurred in certain numbers, for the viability of the law rests on the premise that there is a first time for everything. All that is required to survive a summary judgment motion by the defense is evidence that “the particular danger which resulted in the assault on plaintiff in this case was foreseeable under all the circumstances” and that the defendants were negligent in failing to exercise ordinary care to guard against it. Id. at 301.

Decided February 26, 1998

Jones, Byington, Durham & Payne, Frank H. Jones, for appellants.

In cases of violent criminal attacks on hotel guests, as in other cases, the proprietor owes only the duty of ordinary care. See OCGA § 51-3-1. But the components of “ordinary care” are always tailored to the circumstances and what is “ordinary care” may vary more intensely with the degree to which guests must submit their persons to the hotel’s control, just as the patron’s duty for his own care may vary with the degree to which he might reasonably believe he may relax or let down his guard. What is “ordinary care” of a hotel in one case may not suffice with regard to another hotel. The plaintiff here, McNeal, may have had considerably less information than did the defendants about the safety of the hotel area, the risk to which he was exposed on its premises and at its approaches, and the provision of hotel security or lack thereof.

These questions are for a jury under all the circumstances of the case (Walker v. St. Paul Apts., supra), and they combine to address the question whether the hotel exercised ordinary care in the circumstances. The jury is the best judge of whether the hotel is located in an area which was such that a criminal assault on a hotel guest in the parking lot at night before the security guard arrived at 11:00 p.m. was reasonably foreseeable to defendants, and whether their failure to exercise ordinary care resulted in the hotel guest’s injury.

Judgment reversed.

Ruffin and Eldridge, JJ., concur.

Gorby & Reeves, Michael J. Gorby, Karen E. Cooper, for appellees.


text:
    A97A2279.
    APOLLO TRAVEL SERVICES v. GWINNETT COUNTY BOARD OF TAX ASSESSORS.
    (498 SE2d 297)
   Birdsong, Presiding Judge.

Apollo Travel Services appeals from the grant of summary judgment to the Gwinnett County Board of Tax Assessors. This case concerns the denial of Apollo’s request for an inventory/freeport ad valorem tax exemption under OCGA § 48-5-48.2. The Board of Tax Assessors denied the request because the property on which the exemption was claimed was leased equipment which the Board determined was not eligible for a freeport exemption.

Apollo appealed this decision to the Gwinnett County Board of Equalization, and when that appeal was unsuccessful, further appealed to the superior court. After considering the parties’ cross-motions for summary judgment, the superior court ruled that “the computer equipment at issue is leased for a term of years and upon completion of the lease term returned to the State of Georgia for storage and re-rental, and therefore, under OCGA § 48-5-48.2 (b) (3) the equipment would not meet the requirement that the goods be destined for shipment ‘to a final destination outside this state.’ ” Therefore, the superior court granted the Board of Tax Assessors’ motion for summary judgment and denied Apollo’s motion. Apollo now appeals contending that the trial court erred by considering an issue not raised before the Board of Equalization, by holding that all of Apollo’s inventory failed to have a final destination outside of Georgia, by granting summary judgment in a manner allowing for discriminatory taxation, and by deciding that the freeport exemption is not available on leased equipment which were fixed assets and not inventory.

Apollo, a national distribution company for a computer reservation system, sought a personal property ad valorem tax exemption on more than 99 percent of its computer inventory that was stored in its Gwinnett County warehouse and which would be shipped to destinations outside of Georgia. Apollo is a licensed national distributor of computer hardware and software for the computer travel reservation system owned by Galileo International Partnership. Apollo owns the computer hardware and stores the hardware in its Gwinnett warehouse until it is leased and shipped to users of the Galileo system. According to Apollo, at least 97 percent of the computer hardware is shipped outside the state and remains there during the computer’s useful life. Although some of the computers may eventually be returned to Apollo at its Gwinnett County facility until it is placed with another user of the Galileo reservation system, some computers are scrapped at the end of their leases and others are redeployed to other Galileo users without returning to Georgia.

Apollo leases the computers only in connection with the Galileo system. The user fees paid for use of the system comprises 70 percent of Apollo’s income; the other 30 percent is derived from fees paid for use of the computers and software. Further, if the lessee meets certain quotas, there is a 100 percent discount on the rental fees.

Apollo’s computers are not sold or leased separately from the Galileo system but are only leased to travel agencies in connection with the Galileo system. Additionally, Apollo’s lease places several restrictions on the lessees: the equipment may be used only at the location specified; Apollo installs and removes the equipment; and Apollo provides all support, repair and maintenance for the leased equipment and limits the personnel who may use the equipment. Additionally, the lease agreement describes the leased equipment as “Apollo Equipment.” Held:

1. The burden of proof in a tax appeal to the superior court is on the party who initiated the appeal. Hawkins v. Grady County Bd. of Tax Assessors, 180 Ga. App. 834 (3) (350 SE2d 790). Therefore, in this case the burden was on Apollo. Further, laws granting an exemption from taxation must be construed strictly in favor of the taxing authority (Rayle Elec. Membership Corp. v. Cook, 195 Ga. 734, 735 (2) (25 SE2d 574); Chilivis v. Cleveland Elec. Co., 142 Ga. App. 751, 752 (1) (236 SE2d 872)), and all doubts must be resolved against the taxpayer. Blackmon v. Screven County Indus. Dev. Auth., 131 Ga. App. 265, 267 (205 SE2d 497). Consequently, no exemption will be allowed unless the exemption is clearly and distinctly intended by the legislature. Chilivis v. Marble Products Co., 135 Ga. App. 187 (1) (217 SE2d 441).

2. Further, the standards applicable to motions for summary judgment generally are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). On appeal, a grant of summary judgment will be affirmed if it is right for any reason (Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (431 SE2d 746)), and when reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. Boulware v. Quiktrip Corp., 226 Ga. App. 399 (486 SE2d 662); Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432).

3. Disposition of this appeal requires us to determine what property the General Assembly intended to be covered by the freeport exemption. “In construing a legislative act, a court must first look to the literal meaning of the act. [Cit.] If the language is plain and does not lead to any absurd or impractical consequences, the court simply construes it according to its terms and conducts no further inquiry” (Diefenderfer v. Pierce, 260 Ga. 426, 427 (396 SE2d 227)), and statutory construction “ ‘must square with common sense and sound reasoning.’ ” Tuten v. City of Brunswick, 262 Ga. 399, 404 (7) (a) (i) (418 SE2d 367). Additionally, however, statutes must be construed in accordance with their real intent and meaning and must not be construed so strictly as to defeat the legislative purpose. Johnson v. Housing Auth. of Atlanta, 198 Ga. App. 816, 817 (403 SE2d 97). In this sense, a statute should be read according to its natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation. Burbridge v. Hensley, 194 Ga. App. 523, 524 (391 SE2d 5).

4. The central issue in this appeal is whether the computers, that Apollo claims should be exempted from taxation, constituted inventory of finished goods within the meaning of the freeport exemption. In Gwinnett County the following personal property is exempt from ad valorem taxes: “Inventory of finished goods which, on January 1, are stored in a warehouse, dock, or wharf, whether public or private, and which are destined for shipment to a final destination outside this state and inventory of finished goods which are shipped into this state from outside this state and stored for transshipment to a final destination outside this state.” OCGA § 48-5-48.2 (b) (3). “Finished goods” are defined as “goods, wares, and merchandise of every character and kind but shall not include unrecovered, unextracted, or unsevered natural resources or raw materials or goods in the process of manufacture or production or the stock in trade of a retailer.” OCGA § 48-5-48.2 (a) (2). Further, “ ‘[sjtock in trade of a retailer’ means finished goods held by one in the business of making sales of such goods at retail in this state, within the meaning of Chapter 8 of this title, when such goods are held or stored at a business location from which such retail sales are regularly made. Goods stored in a warehouse, dock, or wharf, including a warehouse or distribution center which is part of or adjoins a place of business from which retail sales are regularly made, shall not be considered stock in trade of a retailer to the extent that the taxpayer can establish, through a historical sales or shipment analysis, either of which utilizes information from the preceding calendar year, or other reasonable, documented method, the portion or percentage of such goods which is reasonably anticipated to be shipped outside this state for resale purposes.” OCGA § 48-5-48.2 (a) (4).

We do not find that the superior court erred by denying Apollo’s motion for summary judgment and by granting summary judgment to the Board of Tax Assessors. In reaching this determination we do not rely upon the precise reasoning of the superior court, but find that the computers in question do not meet the definition of “inventory of finished goods” as contemplated by OCGA § 48-5-48.2 because these computers are not goods being held for shipment to final destinations outside of this state for resale.

Decided February 26, 1998

Holland & Knight, Raymond P. Carpenter, Keith J. Reisman, James R. McCain, Jr., for appellant.

Carothers & Mitchell, Richard A. Carothers, Thomas M. Mitchell, Caryl Sumner, for appellee.

Instead, we find that under our law these computers are in the nature of Apollo’s stock-in-trade which Apollo is holding merely for shipment to its retail customers who use the Galileo computer system, and not for shipment for “resale purposes.” OCGA § 48-5-48.2 (a) (4).

Therefore, looking to the real intent and meaning of the statute (Johnson v. Housing Auth. of Atlanta, supra) and reading the statute according to the natural and most obvious import of its terms (Burbridge v. Hensley, supra), we find that Apollo is not entitled to a free-port exemption for these computers. Accordingly, under these circumstances the superior court did not err in denying Apollo’s request for a freeport exemption. A grant of summary judgment which is right for any reason will not be reversed. Malaga Mgmt. Co. v. John Deere Co., supra at 767. Further, we do not find that the superior court considered an issue not raised before the Board of Equalization or ruled in a manner that would allow discriminatory taxation.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


author: Andrews, Chief Judge.

text:
    A97A2424.
    STEPHENS et al. v. CLAIRMONT CENTER, INC.
    (498 SE2d 307)
   Andrews, Chief Judge.

Mr. and Mrs. Stephens appeal from the grant of summary judgment to Clairmont Center, Inc. in their action alleging failure to provide adequate security at the shopping center owned by Clairmont.

1. In reviewing grant or denial of summary judgment, this Court conducts a de novo review of the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996); Gaskins v. Hand, 219 Ga. App. 823 (466 SE2d 688) (1996).

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

So viewed, the evidence here was that Davis assumed a lease at the shopping center and began operating Abacus Pawn Shop there in December 1993. Stephens carried a gun and acted as security for the woman who ran the shop for Davis, and Mrs. Stephens did some bookkeeping. Davis had installed burglar bars and a security system in the shop and was contemplating additional security measures. On March 23, 1994, three men posing as customers entered the shop and, in an attempt to rob it, shot Stephens.

Self, who collected rent and took care of maintenance matters for Clairmont, acknowledged that Clairmont had installed burglar doors on the rear of some of the other leased premises at the request of those tenants. Otherwise, there were no security measures provided by Clairmont other than lighting of common areas and locks on the doors. Several tenants, in addition to Davis, had installed their own security systems.

Tennenbaum, president of Clairmont, stated unequivocally that Clairmont “did not provide security within any of the leased space at Clairmont,” and Stephens acknowledged in his deposition that the landlord did not provide security. There is no copy of the lease at issue in the record.

2. “The general rule regarding premises liability is that a landlord does not insure tenants’ safety against third-party criminal attacks, and that any liability from such attacks must be predicated on a breach of duty to ‘exercise ordinary care in keeping the premises and approaches safe.’ OCGA § 51-3-1.” Sturbridge Partners v. Walker, 267 Ga. 785 (482 SE2d 339) (1997).

This case does not turn on the foreseeability of the criminal acts, id., but on the duty or lack thereof of the landlord with regard to security inside Abacus Pawn Shop. “[A] landlord’s duty under OCGA § 51-3-1 to keep safe portions of the leased premises designated as common areas in which the landlord has reserved a qualified right of possession[ ] does not extend to the leased areas of the premises over which the tenant has exclusive possession and control. Godwin [v. Olshan, 161 Ga. App. 35, 36 (288 SE2d 850) (1982)]; Maloof v. Blackmon, 105 Ga. App. 207, 208 (124 SE2d 441) (1962).” Gale v. North Meadow Assoc., 219 Ga. App. 801, 802 (466 SE2d 648) (1996).

Decided February 26, 1998.

Ransopher & Tedrick, Tad D. Ransopher, Renee L. Tedrick, for appellants.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Shivers & Associates, Jeanne F. Johnson, Mary S. Bryson, for appellee.

Here, as in Gale, there has been no showing made by plaintiffs to refute Clairmont’s evidence that it had no duty to provide security inside any of the leased spaces. Merely providing burglar bars on the rear exits of leased spaces at the requests of tenants other than Davis will not impose such a duty.

Further, even assuming a breach of a duty to provide security in the common area, there is no evidence to causally link such a breach to the injuries suffered by Stephens. The assailants entered the shop as business invitees, not intruders.

Therefore, summary judgment was properly granted to Clairmont. See Roberts v. Forte Hotels, 227 Ga. App. 471, 473 (2) (489 SE2d 540) (1997).

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

       Mrs. Stephens’ claim was for loss of consortium.

       The original action also named as defendants Davis and his corporation, who employed Mr. Stephens in the Abacus Pawn Shop located in the shopping center, but the action against them has been settled and dismissed, leaving only Clairmont Center, Inc.


author: Eldridge, Judge.

text:
    A98A0013.
    GLOVER v. THE STATE.
    (498 SE2d 300)
   Eldridge, Judge.

In this appeal, defendant Rodney Glover challenges his convictions for homicide by vehicle, fleeing or attempting to elude a police officer, reckless driving, driving under the influence of marijuana and alcohol, and driving with a suspended license. The charges stemmed from a traffic incident during which Glover’s automobile struck a highway median and was propelled into the air. Both Glover and his passenger, Darryle Woodruff, were ejected from the car and thrown to the pavement. Woodruff died as a result of his injuries, and Glover was seriously injured. For the reasons set forth below, we affirm Glover’s conviction.

The facts of this case, viewed in the light most favorable to the verdict, Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990), are as follows: at approximately 2:00 a.m. on January 26, 1996, Clayton County police officers were conducting a routine roadblock on Highway 42, approximately 150-200 feet from the DeKalb County line. Officer David Moats of the Clayton County Police Department was working at the roadblock and observed a red Mustang automobile approaching; he noticed that the driver appeared to be drinking out of a container. When the Mustang stopped at the roadblock, Officer Moats observed a can of beer between the driver’s legs and smelled a very strong odor of alcohol coming from the driver; the officer also noticed that the driver’s eyes were extremely red and glassy, and that the driver’s speech was slurred. Officer Moats requested a driver’s license from the driver, who produced a temporary paper license bearing the name of “Rodney Keith Glover”; the license had expired over a year before. When Officer Moats directed Glover to pull to the edge of the road, Glover fled north on Highway 42 into DeKalb County. Officer Moats and two other Clayton County officers, Sergeant Bayne and Officer Summers, pursued Glover in marked police cars, with emergency lights and sirens activated. During the chase, Glover jumped a curb, ran a red light, and repeatedly attempted to strike pursuing police cars; the entire chase was videotaped from Officer Moats’ vehicle, and the tape was played for the jury.

After Glover’s car entered Interstate 285, police officers attempted to “box” the car against the center median in order to slow it down and bring Glover safely to a stop. However, Glover suddenly struck the center median on the left, bounced into a pursuing police car on the right, and again struck the median; the car propelled into the air, repeatedly overturned, and landed right side up on the highway. Both Glover and Woodruff were ejected; the videotape showed Glover flying through the air and striking the median wall before landing on the highway. Immediately following the collision, Officer Moats approached Glover and identified him to other officers as the driver of the vehicle. However, Woodruff’s wallet, which contained his habitual violator driver’s license, was found on the highway and was mistakenly placed with Glover. Glover, unconscious and seriously injured, was handcuffed and transported to DeKalb Medical Center under Woodruff’s name. At the same time, Woodruff was transported to Grady Hospital under Glover’s name. Glover’s sister was contacted mistakenly by police and hospital officials regarding Woodruff’s condition, and she realized that a mistake had been made regarding the identities of the men. She then contacted DeKalb Medical Center, and confirmed that the man being treated there was, in fact, her brother, Rodney Glover.

Following his 30-day hospital stay, Glover was arrested and indicted. He was tried by a jury in DeKalb County Superior Court on March 11 through 14, 1997, and was convicted on all counts. He filed a motion for new trial, which was later amended; following a hearing, the motion was denied. Glover appeals.

1. Glover first asserts that the trial court erred in allowing testimony concerning alcohol and drug levels in his blood and urine without requiring the State to establish a chain of custody. However, during the trial, Glover failed to object to testimony of a hospital employee regarding the blood and urine tests. Upon cross-examination, defense counsel extensively questioned the witness on testing procedures, specifically on who determined the threshold level at which patients would be tested for THC, an active ingredient in marijuana. During this questioning, defense counsel referred directly to the written hospital laboratory report which established that Glover had THC in his system at the time of the collision. After the witness repeatedly testified that he did not know the answer to Glover’s questions, the State objected. Defense counsel responded to the objection by saying “I object to [the witness’] testimony in total”; he gave no basis for the objection and did not invoke a ruling from the trial court. The trial court overruled the State’s objection and allowed Glover to pursue his cross-examination; no further objection was made to the witness’ testimony.

In his amended motion for a new trial, Glover asserted for the first time the State’s alleged failure to present chain of custody evidence regarding his blood and urine tests. Following the hearing on Glover’s motion, the trial court found that Glover had waived his objection to the witness’ testimony by failing to raise the issue at trial. We agree.

“In order to preserve an objection upon a specific ground for appeal, the objection must be made at trial upon that specific ground. Norman v. State, 197 Ga. App. 333, 334 (3) (398 SE2d 395) (1990).” Smith v. State, 222 Ga. App. 366, 368 (3) (a) (474 SE2d 272) (1996); McGee v. State, 205 Ga. App. 722, 726 (423 SE2d 666) (1992). “ Where [the defendant] asserts error and no objection is made at the trial it cannot be made the basis of appellate review, either as a ground of a motion for new trial, or as a ground of enumerated error on direct appeal.’ ” Jones v. State, 190 Ga. App. 416, 418 (3) (379 SE2d 189) (1989). Glover’s failure to object to the evidence at trial on the ground asserted on appeal waived this objection.

Further, defense counsel utilized the challenged evidence during cross-examination of the hospital employee. A “ ‘defendant will not be allowed to induce an asserted error, sit silently hoping for acquittal, and obtain a new trial when that tactic fails. (Cits.)’ Jackson v. State, 234 Ga. 549, 553 (216 SE2d 834) (1975).” Roulain v. Martin, 266 Ga. 353, 354 (466 SE2d 837) (1996); Joyner v. State, 208 Ga. 435, 438 (67 SE2d 221) (1951); Jones v. State, supra; Keno v. Alside, Inc., 148 Ga. App. 549 (251 SE2d 793) (1978). A defendant “ ‘cannot complain of a result his own procedure or conduct aided in causing. (Cits.)’ ” Holtapp v. City of Fayetteville, 208 Ga. App. 606, 607 (431 SE2d 403) (1993); Rider v. State, 207 Ga. App. 519 (428 SE2d 423) (1993). There was no error.

2. In his second enumeration, Glover asserts that the trial court erred in allowing the State to elicit testimony regarding the blood and urine evidence even though the State failed to comply with the provisions of OCGA § 40-6-392. However, Glover failed to raise this objection at the time the evidence was offered, and therefore, it was waived. Carr v. State, 222 Ga. App. 776, 778 (476 SE2d 75) (1996); see also Division 1, supra.

Further, although Glover subsequently asserted this error in his motion for a directed verdict at the close of evidence, “[i]t is well settled in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection. Although a party may move to strike illegal evidence any time before the case goes to the jury, even where no objection was made when it was admitted, the result[s] of the blood [and urine tests] admitted in this case, without objection, despite the State’s failure to satisfy the foundational requirement that the blood [and urine were] withdrawn by a person qualified under OCGA § 40-6-392 (a) (2), w[ere] not illegal evidence subject to a subsequent motion to strike.” (Citations omitted; emphasis in original.) Carr v. State, supra at 778; see also Corley v. State, 192 Ga. App. 35, 36 (383 SE2d 586) (1989). The trial court did not err in denying Glover’s motion for a new trial on this basis.

3. In his third enumeration, Glover asserts that the evidence was insufficient to support the verdicts. In arguing this enumeration at the hearing on the motion for new trial, Glover specifically claimed that there was insufficient evidence to support a finding by the jury that he was the driver of the vehicle. We disagree.

“On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, supra at 464 (1); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The evidence in this case included the testimony of Officer Moats, who originally questioned Glover at the police roadblock. Officer Moats testified that he observed Glover driving the red Mustang to the roadblock; that Glover appeared to be drinking from a container; that Glover had a beer can between his legs; that Glover had red, glassy eyes, a strong odor of alcohol, and slurred speech; that Glover produced an expired driver’s license that belonged to “Kodney Keith Glover”; and that Glover fled when directed to pull to the side of the road. Officer Moats also testified that he pursued Glover in his patrol car with his lights and siren activated; that he observed Glover jump a curb, run a stop light, and attempt to collide with pursuing police vehicles; and that he witnessed the collision of Glover’s car with the highway median. Officer Moats stated that he approached Glover, who was lying unconscious near the median, immediately following the collision; that he was certain that Glover was the driver of the Mustang whom he had questioned at the roadblock a few minutes earlier; and that he went to DeKalb Medical Center because he wanted to obtain additional evidence from Glover for his DUI investigation.

Decided February 26, 1998.

Cynthia A. Price, for appellant.

J. Tom Morgan, District Attorney, Sheila A. Connors, Melissa L. Himes, Assistant District Attorneys, for appellee.

In addition, both Sergeant Bayne and Officer Summers, the Clayton County police officers who had participated in the pursuit of Glover, testified that there was no confusion at the scene as to which of the injured men was the driver; the only confusion was related to the driver’s actual name. Officer Summers further testified that he had a direct view of the Mustang during the collision and witnessed as Glover was ejected from the driver’s side of the vehicle and thrown into the median wall. Sergeant Smith of the Georgia State Patrol also testified that there was no confusion at the scene as to which man was the driver of the vehicle.

This evidence was sufficient to support the jury’s finding beyond a reasonable doubt that Glover was the driver of the vehicle.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A0059.
    PITTMAN v. THE STATE.
    (498 SE2d 309)
   Eldridge, Judge.

The defendant, Paul E. Pittman, appeals his conviction for the offenses of burglary and aggravated assault. The defendant’s sole enumeration of error is that the trial court erred in failing to grant him a directed verdict on the charge of burglary.

“A directed verdict- of acquittal is proper only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. OCGA § 17-9-1 (a). On appeal we must view the evidence in the light most favorable to the verdict, [the defendant] no longer enjoys the presumption of innocence, and we do not weigh the evidence nor judge the credibility of the witnesses. Further, we do not speculate which evidence the jury chose to believe or disbelieve.” (Citations and punctuation omitted.) Thompson v. State, 210 Ga. App. 655, 656 (1) (436 SE2d 799) (1993).

In this case, the evidence shows that the defendant and the victim were married in 1987 and divorced in 1988. Subsequent to the divorce, the defendant resided in the victim’s house continuously, except for a brief period when the defendant “moved out because he met a girl.” However, after the divorce, the defendant and the victim lived separately within the house; they had “separate bedrooms, separate paychecks, [and] separate food.” The victim testified that she paid for all the maintenance on the house, but allowed the defendant to live in her house after the divorce because “he wouldn’t let [her] go”; he would “hold things over [her]” and threaten her.

On June 30, 1996, the defendant moved out of the victim’s house and moved to the Burnett Ferry Mobile Home Park. When the defendant moved, he took all of his personal belongings, except for some clothing which he refused to take. The defendant no longer had a key to the victim’s house. The victim testified the defendant did not have an open invitation to visit her house and that she did not initiate any contact with him; the only contact the victim had with the defendant was when he would call her. The victim went on to testify that she had not given anyone permission to be at her house on September 16, 1996.

On the morning of September 16, 1996, the day before the victim and the defendant were due to be in court for a hearing, the victim went to the doctor. When the victim left her house, all the windows and doors were secured. When the victim returned to her house, she entered though the back door near the kitchen. As she entered, she saw the defendant crouched in the kitchen with a hammer in his hand. The defendant attacked the victim with the hammer.

The victim testified that the defendant hit her on her legs with the hammer, and when she attempted to block the blows of the hammer, the defendant hit her hands with the hammer. The victim was able to grab the hammer by the head and jerk it out of the defendant’s hand; she threw the hammer toward the porch, because the porch door was glass and she hoped the door would break and draw attention to her plight. The hammer hit the door,' but bounced off the door without breaking the glass. The defendant tried to pick up the hammer, but the victim was able to reach it first and throw it outside. The victim went on to testify that she thought she was going to die and started clawing the defendant in the face. The victim fought the defendant as he pushed her down the steps. At the bottom of the steps, the victim fell on some ceramic ducks in the flower bed. The victim further testified that she bit the defendant with such force her partial plate was displaced and it fell out of her mouth. The victim stated that, once the defendant had her on the ground, he “was on [her] back” choking her with one hand so that she could hardly breathe.

When the victim asked the defendant why he was attacking her, he replied “because I love you.” In an attempt to placate the defendant, the victim replied “I love you too.” Then, the defendant agreed to release the victim if “they could work it out.” The victim, in her continuing effort to placate the defendant, agreed to sit outside and talk to him. The defendant told the victim that he was sorry, and the victim promised to help the defendant get some “help” from a doctor. The victim then drove the defendant home.

After leaving the defendant at his trailer, the victim drove to Georgia Tool & Equipment Rental, where her friends worked. James Pruitt testified that, when the victim arrived, she was crying and appeared to be almost in shock; there were bruises on her neck and she was bleeding. Pruitt called the police. Once the police officer arrived, Pruitt, at the suggestion of the police officer, called for an ambulance to transport the victim to the hospital. At the hospital, the victim received stitches in her hand and was released.

Sergeant Perry Maynard of the Floyd County Police Department investigated the crime scene. He testified that, when he arrived at the victim’s house, the victim had just returned from the hospital emergency room; she was upset and in “somewhat” of an agitated state; she had abrasions on her hands, arms, and legs; and she had marks and bruises on her neck. Sergeant Maynard went on to testify, that, in addition to finding some overturned potted plants and broken ceramic duck figures outside the back door, he also found the victim’s partial denture plate on the ground by the back steps, the window of the front door broken, and the front door partially open.

The defendant did not testify at trial or call any witnesses. Although the defendant was present in court during jury selection, he did not appear for the trial of the case or report his whereabouts to his counsel or the court. The defendant could not be located by his counsel, and the trial proceeded in the defendant’s absence. The defendant was rearrested just prior to sentencing.

“A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another.” OCGA § 16-7-1 (a). The defendant argues that there was insufficient evidence that he lacked “authority” to enter the victim’s house. Specifically, the defendant alleges that, even though he was domiciled at Burnett Ferry Mobile Home Park, he had left a truck he drove, a boat he operated, clothing, and other personal belongings at the victim’s house, and that he intended to maintain a residence there. Therefore, he asserts that he had the “authority” to enter the victim’s home. We disagree.

Only authorized entry into a building or mistake of fact would constitute an affirmative defense to a burglary charge. Gray v. State, 163 Ga. App. 720 (294 SE2d 697) (1982). Once the victim had withdrawn the defendant’s authority to enter her house, the fact that the defendant may have once lived at the victim’s house and had left personal property within the house does not, in itself, give the defendant subsequent authority to enter. The Supreme Court held that “[a]n entry into the separate residence of an estranged spouse, without authority and with the intent to commit a felony or theft therein, constitutes burglary.” State v. Kennedy, 266 Ga. 195, 196 (467 SE2d 493) (1996), overruling Mitchell v. State, 263 Ga. 129 (429 SE2d 517) (1993) , reversing Kennedy v. State, 215 Ga. App. 232 (450 SE2d 252) (1994) . Further, in Hug v. State, 205 Ga. App. 746 (423 SE2d 700) (1992), this Court found that, when the victim gave the defendant a key to her condominium unit, but later changed the lock and did not give the defendant a new key, the authority to enter her condominium had been withdrawn. Therefore, the defendant’s subsequent entry into her home, with a new key which he had made without her permission, supported a burglary conviction.

In this case, the evidence shows that the defendant had moved out of the victim’s house approximately two and one-half months earlier, taking the majority of his personal possessions. The defendant no longer had a key to the victim’s house. The victim had not given the defendant an open invitation to return to her house at his pleasure and had not given the defendant the authority to enter her home on the day of the burglary. Therefore, a jury could find that the defendant did not have authority to enter the victim’s house. Further, the defendant entered the victim’s house with force, i.e., by breaking the glass out of her front door, and from such conduct, the jury could infer that the defendant knew that he was without authority to be in the victim’s house. Since authority for the defendant to enter the victim’s house had been withdrawn and had never been subsequently re-issued, the evidence in this case is more than sufficient for a rational trier of fact to have found the defendant guilty beyond a reasonable doubt of the offense of burglary under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided February 26, 1998.

John F. McClellan, Jr., for appellant.

Tambra P. Colston, District Attorney, Lisa W. Tarvin, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.

       The defendant was also indicted for the offense of aggravated stalking. However, the jury returned a verdict of not guilty on this count of the indictment.

       There is no evidence in the record that the defendant’s car or boat was at the victim’s house on September 16,1996. The only evidence of the defendant’s personal property left at the victim’s house after his departure was some clothing, which he had refused to take.

       Our holding in Hutson v. State, 220 Ga. App. 609 (469 SE2d 825) (1996), is not applicable. In Hutson, this Court found that a 15-year-old daughter was a rightful occupant of her parents’ home, and her invitation conveyed authority to the defendant to disregard an earlier notice that he was barred from the home.


text:
    A98A0123.
    LITTLE v. THE STATE.
    (498 SE2d 284)
   Eldridge, Judge.

The defendant, Hugh Little, appeals his conviction for the offenses of sale of cocaine and theft by taking.

1. In his first enumeration of error, the defendant asserts that the trial court erred by denying the defendant’s motion for directed verdict in that there'was insufficient evidence to support a conviction for the alleged sale of cocaine. Specifically, the defendant asserts that the State failed to introduce sufficient evidence to establish that the appellant was a party to the crime committed by Joyce Alexander.

Viewed in the light most favorable to the verdict, the evidence shows the following: on the evening of July 25, 1991, Beth Tessmer, an undercover officer with the Barnesville Police Department who was attached to the Narcotics Task Force for Monroe, Lamar, Upson, and Pike Counties, was conducting an undercover drug investigation. A confidential informant drove Officer Tessmer to a residence at 612 Old Talbotton Road, Thomaston, Georgia. This residence was the home of defendant Hugh Little and Joyce Alexander, who had lived with each other for 14 years.

Officer Tessmer testified that the defendant, who was wearing blue work clothes with the name “Hugh” over the shirt pocket, exited the residence and approached the vehicle in which the confidential informant and she were sitting. Officer Tessmer advised the defendant that she needed a “twenty,” i.e., a $20 rock of crack cocaine. The defendant stated he did not have any drugs, but that Joyce Alexander, who was at that point coming out of the residence, could go get some for them. Alexander approached the vehicle and engaged in a conversation with Officer Tessmer. The defendant stated to both Officer Tessmer and Alexander that Alexander would get the crack cocaine, and it would be okay for Officer Tessmer and the confidential informant to remain parked in the yard. Officer Tessmer handed Alexander $20, and Alexander left with the money to obtain crack cocaine. Approximately five to ten minutes later, Alexander returned with a small package containing what was later identified as a rock of crack cocaine.

On July 30, 1991, at approximately 10:30 p.m., Officer Tessmer and the confidential informant returned to the defendant’s residence. On this occasion, Officer Tessmer was driving the vehicle. The defendant leaned into the vehicle and spoke with Officer Tessmer concerning another drug purchase. Officer Tessmer asked if the defendant could get a “twenty.” The defendant said yes, but indicated he would have to go and get the cocaine. Officer Tessmer gave the defendant $20 and waited for him to return. While Officer Tessmer and the confidential informant were waiting, Alexander exited the residence and engaged in conversation with the officer. As this conversation was occurring, another car pulled into the driveway, and the defendant’s mother, who lived next door, came into the yard where Officer Tessmer was waiting and began screaming for everyone to leave the residence. Officer Tessmer and the confidential informant left, drove down the street, and approached the defendant as he was walking back toward his residence. Officer Tessmer stopped and asked the defendant if he had obtained the drugs. The defendant shook his head no. When Officer Tessmer asked the defendant if he was going to get the drugs, he indicated no, and when Officer Tessmer asked the defendant to return the money, he refused.

“On appeal of a criminal conviction, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations and punctuation omitted; emphasis in original.) Browning v. State, 207 Ga. App. 547, 548 (1) (428 SE2d 441) (1993). Furthermore, “[t]he determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury. [Cit.]” Norris v. State, 258 Ga. 889, 890 (1) (376 SE2d 653) (1989). “This [C]ourt determines the sufficiency of the evidence, but does not weigh the evidence or determine witness credibility.” (Citations and punctuation omitted.) Browning v. State, supra at 548 (1). In light of Officer Tessmer’s testimony, the jury was authorized to and did reject the testimony of Alexander that the defendant was not home on the night of July 25, 1991, and that she was the only one involved in the sale of cocaine.

“Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16-2-20 (a). Furthermore, “[a] person is concerned in the commission of a crime only if he: (1) Directly commits the crime; (2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity; (3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.” OCGA § 16-2-20 (b). “The theory that one may act as a conduit or procuring agent of the purchaser and thereby escape culpability as a seller has been considered and rejected by this Court.” (Citations and punctuation omitted.) Gay v. State, 221 Ga. App. 263, 265 (1) (a) (471 SE2d 49) (1996).

The evidence in this case is sufficient for a rational trier of fact to have found the defendant guilty beyond a reasonable doubt of the offense of being a party to the sale of cocaine under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Gay v. State, supra; Turner v. State, 216 Ga. App. 896 (456 SE2d 241) (1995); Chappell v. State, 215 Ga. App. 596 (451 SE2d 491) (1994).

2. In the defendant’s second enumeration of error, he alleges that the trial court erred in denying his motion for new trial as to the issue of the trial court’s failure to charge at the conclusion of the evidence on the law concerning the presumption of innocence, the burden of proof, and the definition of reasonable doubt.

At the beginning of the trial in this case, the trial court instructed the jury on several points of law, including presumption of innocence, reasonable doubt, and burden and standard of proof. After closing arguments at the conclusion of the evidence, the trial court gave additional charges, but did not recharge on these points of law, even though the defendant had filed requests to charge on these specific points of law.

OCGA § 5-5-24 (b) requires that the trial court shall instruct the jury in the law after the closing arguments are completed. While “[i]t is commendable that the trial judge here gave the jurors preliminary instructions, before evidence was presented, to acquaint them with the nature of their duties and the basic principles of law they would apply during their deliberations^]... it cannot serve as a substitute for a complete jury charge, as the statute requires, after the evidence is closed and arguments concluded.” Blandburg v. State, 209 Ga. App. 752, 753-754 (2) (434 SE2d 510) (1993). The failure of the trial court to recharge the jury on the presumption of innocence and burden of proof after closing argument has been held by the Supreme Court to be error. Griffith v. State, 264 Ga. 326 (2) (444 SE2d 794) (1994).

In several cases, the appellate courts have dealt with the trial court’s failure to repeat preliminary instruction on the presumption of innocence, the burden of proof, and the standard of proof being beyond a reasonable doubt in the trial court’s charge given after the closing arguments. See Griffith v. State, supra at 327; Loyd v. State, 222 Ga. App. 193 (474 SE2d 96) (1996); Dennard v. State, 216 Ga. App. 446 (454 SE2d 629) (1995); Blandburg v. State, supra. While the appellate courts have found in some instances, under the facts and circumstances of a particular, case, that the failure to recharge on the presumption of innocence, the burden of proof, and the standard of proof after the closing argument was harmless error, a judicial determination of harmless error can be made only on a case-by-case basis. LaRue v. State, 137 Ga. App. 762 (224 SE2d 837) (1976). Therefore, we find that the better practice is to completely recharge the jury on such issues in the post-argument charge. “It is indeed difficult to imagine a more serious omission from a charge to the jury in a criminal case. It is no reply that a correct statement of [these] fundamental principled] was given to the jury in preliminary instructions. OCGA § 5-5-24 (b) requires the trial court to give the jury comprehensive instructions after closing arguments, even at the cost of extensive repetition.” (Citations and punctuation omitted.) Dennard v. State, supra at 448 (1). A trial court’s failure to repeat such charges after closing argument flirts with reversal. This case exemplifies why this is so.

The presumption of innocence, the burden of proof, and the standard of proof are the fundamental doctrines of American criminal jurisprudence and the bedrock of determining guilt or innocence in a criminal case. The failure of the trial court to give such charges would be a violation of the defendant’s state and federal constitutional due process rights. “The landmark decision of Chapman v. California, 386 U. S. 18 (87 SC 824, 17 LE2d 705) [(1967),] established [the] principles to be followed in determining whether constitutional errors may be deemed harmless. Rejecting the contention that all federal constitutional errors must always be considered harmful, the court stated that there may be some constitutional errors which are so insignificant within the context of the factual situation of the particular case as to render the error harmless, not requiring the automatic reversal of a conviction. But, ‘before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt,’ and the burden for this showing rests with the prosecution. In fashioning a rule by which courts might determine whether a constitutional error is harmless, the Chapman Court adopted the language of Fahy v. Connecticut, 375 U. S. 85 (84 SC 229, 11 LE2d 171)1(1963)]: ‘The question is whether there is a reasonable possibility that the [error] complained of might have contributed to the conviction.’” (Emphasis supplied.) LaRue v. State, supra at 764. Further, “[T]he determination of whether a [flederal constitutional error is harmless is a matter of [flederal law. It is thus clear that in determining the harmful effect of a [Fifth] Amendment violation, state-fashioned rules of harmless error must give way to principles enunciated by the United States Supreme Court.” Id. at 764-765, n. 1; Chapman v. California, supra at 20-21.

The presumption of innocence and the burden of proof are concepts that a juror can easily understand. They are concepts with which jurors are familiar and are reinforced through the actual trial of the case when the State proceeds first to put up evidence in order to prove all elements of the offense with which the defendant is charged. However, the standard of proof that a person must be found guilty beyond a reasonable doubt is more complex and difficult for a juror to comprehend and apply.

Of the three standards of proof in civil, constitutional, and criminal cases, “beyond a reasonable doubt” is the most complex because it is contrary to what most people understand as the standard of proof. It is difficult for a juror to understand what must be proven before a defendant can be convicted of the crimes with which he is charged. The presumption of innocence “remains with the defendant throughout the progress of the trial, unless and until it [is] overcome in the minds of the jury from what is adduced on the stand, under the rules of law as given by the court[,]” that the defendant is guilty beyond a reasonable doubt. (Citations and punctuation omitted.) Dennard v. State, supra at 447 (1). “The stringency of the beyond a reasonable doubt standard bespeaks the weight and gravity of the private interest affected, society’s interest in avoiding erroneous convictions, and a judgment that those interests together require that society impose almost the entire risk of error upon itself.” (Citations and punctuation omitted.) Santosky v. Kramer, 455 U. S. 745, 755 (102 SC 1388, 71 LE2d 599) (1982).

In this case, the only eyewitness, besides Officer Tessmer and Alexander, was the confidential informant, whose identity was not revealed at trial. The defendant exercised his constitutional right to remain silent and not to testify in his own defense. The testimony of Officer Tessmer was in direct conflict with the testimony of Alexander, who testified that the defendant was not present at their home on the night of July 25, 1991; that the defendant did not participate in the sale of the cocaine; and that the defendant’s work shirts did not have “Hugh” over the pocket, but either had his last name of “Little” or did not contain any name. Under these circumstances, we cannot say that the failure of the trial court to reiterate its instructions on the standard of proof and define “beyond a reasonable doubt” in the charge after closing arguments was harmless beyond a reasonable doubt and did not contribute to the verdict. Accordingly, we reverse. LaRue v. State, supra. See Mosier v. State, 218 Ga. App. 586 (462 SE2d 643) (1995). Even if the lesser non-constitutional standard was applied, this Court would have to reverse on the facts of this case.

3. The defendant also enumerates as error the trial court’s refusal to grant his Brady motion to reveal the identity of the confidential informant.

In Thornton v. State, 238 Ga. 160 (231 SE2d 729) (1977), the Supreme Court held that, where the defendant was seeking the identity of a confidential informant under a motion made pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), Brady must be read together with Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1957) where “the question is disclosure of the identity of the [S]tate’s informer-witness or informer-participant if material to the defense on the issue of guilt or punishment.” Thornton v. State, supra at 165; see Moore v. State, 187 Ga. App. 387 (370 SE2d 511) (1988). Thus, when “an informer’s identity is required under the standards set forth in Brady, the trial court must go further and weigh the materiality of the informer’s identity to the defense against the [S]tate’s privilege not to disclose his name under Roviaro” Thornton v. State, supra at 165.

Prior to hearing evidence in this case, the trial court held a hearing outside the presence of the jury on the defendant’s Brady motion. The only witness called was Alexander, who testified that the defendant was not home on the evening of July 25,1991, and did not participate in the sale of cocaine. Alexander stated that she sold Officer Tessmer the cocaine. Alexander also testified that, on July 25, 1991, the confidential informant was driving the car; that the sale of cocaine occurred on the driver’s side of the car; and that the confidential informant took the money from Officer Tessmer and handed it to her. Therefore, under the evidence before the court at the Brady hearing, the confidential informant was a witness-participant. Further, Alexander testified that there were no other witnesses to the transaction besides the police officer, the confidential informant, and herself. The assistant district attorney made an offer of proof that the police officer’s testimony would contradict Alexander’s testimony as to the defendant’s participation in the crime. The defendant elected not to testify in his own behalf. There existed a sharp conflict in the evidence.

Thus, the threshold issues were met of showing that the confidential informant was an informer-witness or informer-participant; that there was a conflict between the testimony of the police officer and Alexander as to the defendant’s guilt; and that the confidential informant was the only available witness who could amplify or contradict their testimony. Under such a scenario, the confidential informant’s testimony could be material to the defendant on the issue of his guilt or punishment. Thus, the trial court should have required the State to disclose the identity of the confidential informant to the trial judge only and an in camera hearing should have been held to determine if, in fact, the confidential informant was an eyewitness and, if so, whether his testimony would be inculpatory, impeaching or exculpatory to the defendant’s guilt or punishment. Only after making a determination that the testimony of the confidential informant was exculpatory to the defendant’s guilt or punishment, should the trial court go further and “weigh the materiality of the informer’s identity to the defense against the [S]tate’s privilege not to disclose his name under Roviaro.” Thornton v. State, supra at 165.

Decided February 26, 1998.

William A. Adams, Jr., for appellant.

William T. McBroom III, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

Normally, we would remand this case to the trial court for a post-judgment in camera hearing to determine if the trial court’s error was harmless to the defendant. However, since this case was reversed by our decision in Division 2, the trial court is directed, prior to proceeding with a new trial, to conduct an in camera hearing of the confidential informant’s testimony in order that a proper balancing may be made between the accused’s right to a full and fair opportunity to defend himself and the State’s privilege not to disclose the name of the confidential informant, pursuant to the mandates of Roviaro v. United States, supra; Thornton v. State, supra; and Moore v. State, supra. Under the facts of this case, if the informant’s testimony is exculpatory, then his identity must be revealed.

Judgment reversed and case remanded with direction.

Blackburn, J, and Senior Appellate Judge Harold R. Banke concur.

       In Griffith v. State, supra, the Supreme Court relied on Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976), in determining whether the failure of the trial judge to repeat his preliminary instructions on the presumption of innocence and the burden of proof in the final charge was harmless error. In Johnson, the Supreme Court recognized that there were two standards for review, constitutional and non-constitutional, and chose to use the non-constitutional standard because the issue in that case had no constitutional implications. The Griffith Court used the non-constitutional standard set forth in Johnson and found that it was “highly probable that the failure of the trial court to repeat all instructions in the final charge to the jury did not contribute to the judgment” and held that the error was harmless. Griffith v. State, supra at 327 (2). However, the non-constitutional “highly probable” test is a lesser standard than that required by Chapman v. California, supra, for determining if a federal constitutional error was harmless. While the standard for determining whether a non-constitutional error is harmless is for each state to decide, determinations of whether federal constitutional error is harmless must be determined under the standards set forth in Chapman. As in this case and Griffith, when the defendant generally reserves objections to the charges, he reserves all constitutional objections to the charge. The failure of the trial court in Griffith to recharge on the presumption of innocence and burden of proof was a state and federal constitutional due process violation. Therefore, Griffith should have been decided under the standard set forth in Chapman, as we have done in this case.

       This case can be distinguished from Loyd v. State, supra, in which there was no conflict in the witness’ testimony as to guilt or innocence.

       In determining if the confidential informant’s testimony would be exculpatory or impeaching under Brady, the trial court must conduct a two-step hearing. Initially, the trial court should hear evidence to determine: (a) if the confidential informant is an alleged informer-witness or informer-participant whose testimony appears to be material to the defense on the issue of guilt or punishment; (b) that there is no reasonable substitute testimony for that of the confidential informant; and (c) that the testimony for the prosecution and defense is or will be in conflict. Once this threshold has been met, the trial court must then hold an in camera hearing under the mandates set forth in Thornton and Moore to determine if the confidential informant was, in-fact, an eyewitness and, if so, whether his testimony would be inculpatory, impeaching or exculpatory to the defendant’s guilt or punishment. If the trial court finds that the confidential informant’s testimony is exculpatory to the defendant’s guilt or punishment under Brady, then the balancing test of Roviaro and Thornton must be applied to determine if the identity of the informant must be revealed. See Roviaro v. United States, supra; Thornton v. State, supra; Moore v. State, supra. If the judge determines in camera that the informant was not an eyewitness or an eyewitness that is inculpatory, then, under the statutory privilege, the identity would not be divulged.

       Under the balancing test of Roviaro and Thornton, “where the evidence sought from the unidentified source is required by the defendant on the mere possibility that the police might be impeached it is not enough to demand disclosure of the informer’s identity.” (Citations and punctuation omitted; emphasis in original.) Moore v. State, supra at 390.