text:
    A93A1366.
    MONTGOMERY v. THE STATE.
    (435 SE2d 510)
   Birdsong, Presiding Judge.

Fred Montgomery appeals his judgment of conviction of armed robbery, aggravated assault and simple battery. His sole enumeration is that “the trial court erred in allowing testimony of the pretrial identifications by the alleged victim and allowing her to make an in-court identification of the appellant.” Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). In determining the validity of the trial court’s ruling as to the identification issues, an appellate court may consider all relevant evidence of record, including that contained in the suppression motion hearing and trial transcripts. See Jones v. State, 187 Ga. App. 421, 422-423 (370 SE2d 784).

2. In his appellate brief, appellant discusses certain procedures regarding the in-court and pretrial identifications made by Mr. and Mrs. Allen. As the enumeration of error fails to include reasonably any claim of error due to the pretrial or in-court identifications of the Allens, these issues are not before us on appeal. Chezem v. State, 199 Ga. App. 869, 870 (2) (406 SE2d 522).

3. (a) Pretermitting whether the pretrial photographic and lineup procedure to which the victim was subjected was unduly suggestive (see generally State v. Frye, 205 Ga. App. 508, 509 (2) (422 SE2d 915)) is whether any procedure resulted “in a very substantial likelihood of irreparable misidentification.” The factors to be considered in evaluating whether a very substantial likelihood of irreparable misidentification exists, under the totality of the circumstances include: “(a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401).” (Punctuation omitted.) Phillips v. State, 204 Ga. App. 698 (2) (420 SE2d 316). At trial appellant attempted to impeach and discredit the victim by examining her over certain prior discrepancies in her testimony at the probation revocation hearing and the suppression hearing. The trial court, however, weighed the evidence and determined witness credibility; it is not a function of this court to intrude upon the province of the trial court in these areas. The record reveals the victim had ample opportunity to view appellant on his initial ten to fifteen minute visit to the store and when he returned a few minutes later to remain for about ten minutes on the premises to perpetrate the charged offenses. At times the victim was face to face with appellant and could see him clearly; appellant looked familiar because he resembled a man who used to work for the victim. The degree of detail the victim testified to regarding the sequence of events during appellant’s two appearances in the store and his acts and utterances establishes a high degree of attentiveness notwithstanding certain inconsistencies in her testimony as to these matters. The victim’s initial description of appellant was very general in nature, but was sufficient to enable the investigator to put together a grouping of photographs to show the victim; at least one of these photographs bore resemblance to the man in the store (but was recognized by the victim as not being her assailant). When the victim observed the second photographic display, which then included appellant’s picture, she identified him without significant hesitation or reservation; likewise she identified appellant with certainty at the subsequent line-up and at trial. The length of time between the crime and the confrontation was sufficient to allow the witness a reasonable cooling-off period but not so long as to impair her memory. Under the totality of the circumstances, we find that there existed no substantial likelihood of irreparable misidentification caused by any of the pretrial identification procedures used in this case.

This case is distinguishable from State v. Frye, supra, where this court found the evidence supported the trial court’s fact findings and conclusions that there existed a substantial likelihood of misidentification. In this case, the trial court did not exclude evidence of the identifications in issue, and on appeal, we are required to view the evidence in a light most favorable to supporting the verdict. Based on our own evaluation of the record, we conclude there existed no substantial likelihood of misidentification. Phillips, supra.

(b) The victim made a positive in-court identification of appellant, testifying from her own recollection, after stating she remembered the person who robbed her. “Even if taint had occurred in pretrial identification at the [photographic displays or] physical lineup, a witness’ in-court identification may be admitted if it has ‘independent origin.’ [Cits.] The victim had a substantial period of time in daylight hours [and generally under adequate store lighting conditions] to view her attacker and was [face to face and] within [a few] feet of him . . . she clearly and in detail recounted the sequence of events occurring during the attack; she maintained presence of mind to seize an opportunity [to attempt to get away from appellant, to retrieve her purse when he began to examine insurance documents therein, and to seek operator assistance in calling the police immediately following the incident]; and she expressed neither uncertainty nor qualification as to her [positive] in-court identification. The in-court identification was of ‘independent origin.’ ” Munn v. State, 208 Ga. App. 674, 676 (5d) (431 SE2d 447).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.

Decided August 27, 1993.

Duffey & Duffey, Harl C. Duffey III, for appellant.

George C. Turner, Jr., District Attorney, Blanchette C. Holland, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A93A1380.
    AUTRY v. THE STATE.
    (435 SE2d 512)
   Birdsong, Presiding Judge.

Jeffrey Lee Autry appeals his conviction of burglary. Autry contends the evidence is insufficient to support his conviction and he also contends the trial court erred by admitting his confessions in evidence and by allowing an officer to testify who had not produced his notes for examination by the defense counsel. Held:

1. Autry’s contention that the evidence is insufficient to support the conviction is without merit. On appeal the evidence must be viewed in the light most favorable to the verdict, the appellant no longer enjoys the presumption of innocence, and the appellate court determines the sufficiency of the evidence and does not weigh the evidence or judge the credibility of the witnesses. Grant v. State, 195 Ga. App. 463 (393 SE2d 737).

The evidence shows that a man, subsequently identified as Autry, fled from the window of a home and ran to some nearby woods where he was apprehended shortly. Thereafter on two occasions Autry confessed that he had broken into the home. Further, items taken from the home were found in the trunk of Autry’s car which was parked in the carport of the home. We conclude from this evidence that a rational trier of fact could have found the defendant guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Crawford v. State, 245 Ga. 89, 90 (263 SE2d 131).

2. Autry contends that his confessions should not have been admitted because they were not voluntary as they were the result of his hope of reward and the trial court did not give sufficient credit to his mental problems. These contentions are also without merit.

The transcript shows that during the Jackson-Denno hearing held to consider the admissibility of the confessions, the officer who took the confessions from Autry testified that he properly warned Au-try of his rights, that Autry appeared to understand these rights, and that the officer did not threaten Autry or promise him any reward. This testimony is corroborated by rights waiver statements signed by Autry which were introduced at the hearing. From the evidence presented at the hearing, the trial court found that from a preponderance of the evidence Autry was advised of and understood his rights and he voluntarily waived them, and that his statements were freely and voluntarily given without hope of benefit or fear of injury. Unless clearly erroneous, a trial court’s findings on factual determinations and credibility relating to admissibility of a confession will be upheld on appeal. The question of whether a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted by this court unless such determination is clearly erroneous. Brown v. State, 259 Ga. 453, 454 (383 SE2d 882). See Carter v. State, 257 Ga. 510, 513 (361 SE2d 175); Durden v. State, 250 Ga. 325, 327 (297 SE2d 237); Thaxton v. State, 184 Ga. App. 779, 781 (362 SE2d 510). “We have carefully reviewed the testimony presented at the Jackson-Denno hearing and hold the trial court’s decision to admit the defendant’s statement into evidence was not clearly erroneous. Peebles v. State, 260 Ga. 165, 166 (391 SE2d 639); Maggard v. State, 259 Ga. 291, 292 (380 SE2d 259).” Raskin v. State, 261 Ga. 848, 849 (412 SE2d 832). Further, the officer’s testimony that he would inform the district attorney of Autry’s cooperation is not sufficient to create a hope of benefit within the meaning of OCGA § 24-3-50. Sims v. State, 197 Ga. App. 214, 216 (398 SE2d 244).

Decided August 27, 1993.

James P. Brown, Jr., for appellant.

Tommy K. Floyd, District Attorney, Charles E. Rooks, Assistant District Attorney, for appellee.

3. Autry’s contention that his statements were inadmissible because the police officer who testified about Autry’s confessions did so from his memory and without his notes is also without merit. This goes to the weight to be given and not the admissibility of the confession. See Cooper v. State, 256 Ga. 234, 235 (347 SE2d 553); Robinson v. State, 194 Ga. App. 432, 433 (390 SE2d 652).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1558.
    ADAMS v. THE STATE.
    (435 SE2d 514)
   Birdsong, Presiding Judge.

Rodney Adams was convicted of theft by receiving stolen property, aggravated assault on a police officer, being an habitual violator, escape, fleeing and attempting to elude a police officer, and failure to maintain no-fault insurance.

On June 20, 1992, a Georgia State Trooper received an alert for a stolen white Mustang convertible being driven by appellant, who was an escapee. The Mustang had been stolen the night before at gunpoint. The trooper saw the car coming from appellant’s mother’s house and recognized appellant as the driver. Appellant fled and the trooper chased him across 1-85, through a town, and around a back road at 100 mph and more. Appellant turned on another road and slowed down, and the trooper saw him “fumbling.” Both cars came almost to a stop. Appellant leaned out of the car window and fired at the trooper with a silver automatic weapon, and the trooper returned fire. Another chase ensued; again appellant shot at the trooper three or four times. Altogether, appellant fired about 12 shots at the trooper. Appellant turned onto a dirt road and pulled ahead until the trooper could not see him. Another officer arrived; the officers found the Mustang abandoned on a logging road. The officers found no weapons in the car. A helicopter and police dogs were called in and pursued appellant. Each time appellant was cornered, he eluded. He was later arrested at his mother’s house. Of the two weapons found in the house, one was a Ruger, which because of its shiny appearance and rapid fire power the trooper remembered as the one used against him.

Another state trooper testified that in August 1991, when appellant was an escaped convict, he and other officers were involved in another high speed chase on a highway and dirt roads, in which appellant ran people off the road and passed cars on curves, hills and yellow lines. That chase lasted 20 or 30 minutes until appellant’s car crashed. He fled into the woods and was not apprehended. He did not have no-fault insurance. This trooper testified he participated in the search of appellant’s mother’s house after the instant offenses; he was a witness to the fact that two guns were discovered in the house. One of the guns was the Ruger identified by the first trooper as the one appellant used against him. A deputy identified this gun as one stolen in a burglary in 1992 in Meriwether County. The prison warden testified to appellant’s earlier escape from prison. Adams appeals. Held:

1. Appellant contends the trial court erred in refusing him the opportunity to retain counsel of his choice and in not ascertaining whether appellant acted with reasonable diligence in obtaining his own attorney and whether his failure to do so was due to reasons beyond appellant’s control, leaving appellant with ineffective assistance of counsel.

No motion for new trial with a claim of ineffective assistance of counsel was made and no hearing was held on such a claim. Such claim was not raised at the earliest practical moment, and is waived, for counsel filed the notice of appeal when a motion for new trial could have been filed to have the claim heard by the trial court, but no such' motion was filed. Lee v. State, 205 Ga. App. 659 (5) (423 SE2d 29).

Decided August 27, 1993.

Joseph W. Jones, Jr., for appellant.

Peter J. Skandalakis, District Attorney, Agnes T. McCabe, Assistant District Attorney, for appellee.

As for the trial court’s refusal to allow appellant to retain counsel of his own, the record contains an “Order Approving Indigency and Appointment of Counsel,” in which appellant was found indigent and counsel was appointed on July 28, 1992. Trial began August 31, 1992. Only after a jury was selected did appellant say he wanted to hire his own counsel. Appellant said his father could hire an attorney for him. The trial court stated that at arraignment on July 16, appellant had not said he wanted to hire his own counsel. The court ascertained that appointed counsel had gotten all the discovery material, had the State’s entire file and had reviewed it, had interviewed appellant, and had talked with witnesses and felt that he was ready to try the case. Appellant had been out of jail since July 16; the court determined appellant had made no attempt to hire counsel from July 16 until after a jury was selected. There was not even a showing that appellant’s father would in fact hire an attorney for appellant. Appellant’s objection appears to be no more than a delaying tactic, and the court did not abuse its discretion in denying it. Stephens v. State, 208 Ga. App. 620 (1) (431 SE2d 422).

2. Appellant contends the conviction for theft by receiving stolen property is not supported by evidence because no witness had firsthand knowledge that the Ruger was taken from appellant’s bedroom. We find no merit in this enumeration. The witnesses testified GBI agents told them the guns were found in appellant’s bedroom, but one trooper who participated in the search testified:- “I was a witness to two of the guns [being recovered from appellant’s mother’s house].” It was not essential that the State prove the gun was found in appellant’s bedroom. The direct evidence showed appellant used this stolen gun to assault the trooper, and this gun was found in appellant’s mother’s house where he was arrested. This is sufficient to put him in recent unexplained possession of the gun. The evidence is sufficient to convince a rational trier of fact of appellant’s guilt of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


author: Blackburn, Judge.

text:
    A93A0998.
    HANDY v. SPETH.
    (435 SE2d 623)
   Blackburn, Judge.

On October 7, 1989, Marie Speth drove down a residential street looking for her daughter’s lost puppy, and stopped beside a group of playing children to ask if they had seen it. After making the inquiry and getting back into her vehicle, Speth looked around for the children and then began to drive away. Almost immediately, she struck the appellant, two-year-old Gabrielle Handy.

Handy’s mother subsequently commenced this action against Speth, seeking to recover for personal injuries sustained by the child. Following trial in the matter, the jury returned a verdict in favor of the defendant Speth, and this appeal resulted.

1. The plaintiff contends that the trial court erred in charging the jury on the law of accident. Two weeks after the trial and jury verdict in this case, the Supreme Court eliminated the jury charge on accident in civil cases. Tolbert v. Duckworth, 262 Ga. 622 (423 SE2d 229) (1992). However, the court specifically held that the elimination of the jury charge was to be prospective from the date of publication of the decision (January 21, 1993). Id. It is undisputed that the jury instruction given by the trial court was a correct statement of the law on accident as it existed prior to Tolbert v. Duckworth, supra. The only issue thus is whether the evidence authorized the jury charge in this case.

Decided September 1, 1993.

Hawk, Hawk & Lyons, Jacque D. Hawk, for appellant.

Thompson & Smith, Larry I. Smith, for appellee.

In Georgia, “accident” pertains to an injury which occurs without being caused by the negligence of either the plaintiff or the defendant. Chadwick v. Miller, 169 Ga. App. 338 (312 SE2d 835) (1983). With regard to the plaintiff in the instant case, the two-year-old child was conclusively presumed to be incapable of contributory negligence. Hyde v. Bryant, 114 Ga. App. 535 (151 SE2d 925) (1966). With regard to the defendant, it is undisputed that the defendant’s account of the incident would support a finding of no negligence on her part.

The evidence in this case thus supported the jury charge on the law of accident as it existed at the time of the trial. In asserting that the jury instruction should not have been given, the plaintiff advances arguments previously considered and rejected by the Georgia appellate courts until the decision in Tolbert v. Duckworth, supra. See Chadwick v. Miller, supra. The plaintiff also argues that application of the jury charge on accident in this case violated her right to equal protection of the law, but we may not consider that contention because it was raised for the first time on appeal. Edgar v. Shave, 205 Ga. App. 337 (3) (422 SE2d 234) (1992).

2. The plaintiff next contends that the trial court erred in disallowing a neuropsychologist to testify as to the physical causation of the neuropsychological condition for which she was tested. In Morris v. Chandler Exterminators, 200 Ga. App. 816 (409 SE2d 677) (1991), this court specifically held that a psychologist is qualified to provide an opinion as to an organic cause of a mental disorder. However, the Supreme Court granted certiorari to review that issue and held to the contrary. Chandler Exterminators v. Morris, 262 Ga. 257 (416 SE2d 277) (1992). Accordingly, the trial court properly excluded the proffered testimony of the neuropsychologist regarding the plaintiff’s psychological disorder having been caused by a brain injury due to a blow to the head.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


author: Pope, Chief Judge.

text:
    A93A1078.
    SOUTH RIVER FARMS et al. v. BEARDEN et al.
    (435 SE2d 516)
   Pope, Chief Judge.

Plaintiffs, South River Farms and the other owners of certain real property, brought this action against defendants James and Janice Bearden to cancel the notices of lis pendens filed against the property and prayed for damages for slander and libel of title to the property. The trial court granted the Beardens’ motion to dismiss the complaint for failure to state a claim and plaintiffs appeal.

The notices of lis pendens were filed in conjunction with a pleading entitled “Notice of Intent to Sue” the Beardens filed, pro se, in Webster County against the plaintiffs in this case. The pleading alleges, inter alia, the plaintiffs violated the Beardens’ due process and property rights “secured by the 5th and 14th Amendments of the United States Constitution and Article I, #1, #3 and #16 of the Idaho State Constitution.” The record shows the action initiated by the Beardens arose out of continuing friction and bad relations between them and Mr. Ed Simmons who, along with the other plaintiffs, were neighboring landowners. Apparently, the Beardens claimed plaintiffs had harassed them and prevented them from peaceful enjoyment of their property rights. The action in no way related to any claim against the real property owned by plaintiffs. Based on this action in Webster County, the Beardens filed several notices of lis pendens on parcels of land owned by plaintiffs in several counties.

We conclude the trial court erred in dismissing plaintiffs’ complaint on the ground that it did not state a claim on which relief may be granted. “Under the Lis Pendens Statute, notice of lis pendens may be recorded only as to suits in which real property is ‘involved.’ OCGA § 44-14-610; Hill v. L/A Mgt. Corp., [234 Ga. 341 (216 SE2d 97) (1975)]. ‘In Kenner v. Fields (217 Ga. 745 (125 SE2d 44) (1962)), the court said: “The word ‘involved’ as used in such Act refers only to the realty actually and directly brought into litigation by the pleadings in a pending suit and as to which some relief is sought respecting that particular property.” ’ Hill, supra, 234 Ga. at p. 342. ‘A classic example of such a suit is one which seeks to have a prior conveyance of the property set aside or declared null and void. Wilson v. Blake Perry Realty Co., 219 Ga. 57 (131 SE2d 555) (1963).’ Evans v. Fulton Nat. Mtg. Corp., [168 Ga. App. 600 (309 SE2d 884) (1983)].” Jay Jenkins Co. v. Financial Planning Dynamics, 256 Ga. 39, 41 (1) (343 SE2d 487) (1986). In the case now before us, the underlying lawsuit on which the lis pendens were based in no way “involved” the property against which the lis pendens were filed. The Beardens admitted in deposition testimony that they made no claim of interest or ownership in plaintiffs’ property. The Beardens’ claim was essentially one for a money judgment. “At common law and under statutory provisions lis pendens may not be predicated upon an action or suit which seeks merely to recover a money judgment.” Watson v. Whatley, 218 Ga. 86, 88 (2) (126 SE2d 621) (1962). Thus, the lis pendens were improperly filed.

The Beardens argue they are entitled to the statutory privilege afforded allegations contained in court pleadings. In support of this contention the Beardens rely upon cases in which lis pendens were properly filed because the underlying suit involved a claim to the property. See, e.g., Ferguson v. Atlantic Land &c. Corp., 248 Ga. 69 (281 SE2d 545) (1981); Panfel v. Boyd, 187 Ga. App. 639 (371 SE2d 222) (1988); Berger v. Shea, 150 Ga. App. 812 (258 SE2d 621) (1979). The filing of a proper lis pendens is subject .to the defense of privilege concerning the allegations contained in court pleadings, as set forth in OCGA § 51-5-8, because “the effect of a lis pendens is to give constructive notice of all the facts apparent upon the face of the pleadings,” and if the facts alleged in the pleadings are privileged, then the lis pendens must also be privileged. (Citation, punctuation and emphasis omitted.) Berger v. Shea, 150 Ga. App. at 813. Where, as here, the facts in the pleadings on which the lis pendens are based do not relate to any claim against the property, the privilege is inapplicable. Pursuant to OCGA § 51-5-8, the privilege for allegations made in court pleadings apply only to those “which are pertinent and material to the relief sought. . . .” (Emphasis supplied.) The Beardens are not entitled to immunity for filing the lis pendens because the allegation in the notices that the property was subject to their Webster County action was not pertinent or material to the relief sought in the Webster County action, which had nothing to do with the property made subject to the lis pendens.

We also reject the Beardens’ argument that plaintiffs have made no claim for which they could recover damages. In Bell v. King, Phipps & Assoc., 176 Ga. App. 702 (337 SE2d 364) (1985), cited by the Beardens, the claimants presented no evidence of special damages from the alleged wrongful filing of a lis pendens and thus the trial court’s grant of summary judgment to defendants was upheld. In this case, however, the record contains evidence from which a jury could find damages, including evidence that plaintiffs lost a contract for sale of one parcel of land on which a lis pendens was filed when the contracting purchaser discovered the notice of lis pendens and evidence that plaintiffs were required to obtain a quitclaim deed and cancellation of lis pendens from the Beardens in order to sell certain other parcels of land. Under the factual circumstance of this case, the claim made by plaintiffs is one on which relief may be granted. See Kenner v. Fields, 217 Ga. 745 (125 SE2d 44) 1962).

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.

Decided September 1, 1993.

Reagan W. Dean, for appellants.

Denney, Pease, Allison, Kirk & Lomax, John W. Denney, for appellees.

       Although no explanation appears in the record concerning why the pleading referred to the Idaho Constitution, the Beardens testified on deposition that they were assisted by an out-of-state attorney who had filed such actions in other states and apparently the Beardens merely copied the pleadings provided to them by the attorney.


author: Smith, Judge.

text:
    A93A1224.
    WITHMAN v. THE STATE.
    (435 SE2d 519)
   Smith, Judge.

Robert Withman was convicted of child molestation. In his sole enumeration of error, he contends his conviction must be reversed because the State failed to prove venue.

The evidence at trial showed that in the summer of 1992, the victim’s mother and her boyfriend had allowed Withman to share their trailer for a few weeks. Neighbors testified they had observed Withman behaving inappropriately toward the child — touching her, rubbing her, kissing her, and hugging her. The victim’s mother testified that she had become suspicious because Withman had appeared “too friendly” with her daughter and had instructed the child to stay away from Withman. Because of her suspicions, she asked a neighbor, Donna Duncan, to care for the child while she was at work. Duncan testified that Withman frequently visited when she kept the child. According to Duncan, on such occasions Withman would ask the victim to sit in his lap and would hug her inappropriately. Another neighbor testified that she decided to speak with the victim’s mother about Withman’s inappropriate behavior.

When asked by her mother, the victim stated that Withman had been “messing with” her genital area. The mother testified that the victim had told her this had happened in a car, at the trailer, and around the trailer park. When asked to elaborate on the incident in a car, the victim stated that it had occurred when she had driven with her mother’s boyfriend and Withman from Milledgeville to Macon to pick up her mother and Withman’s girl friend from work. On the way home, when his girl friend fell asleep Withman had placed his hands between the victim’s legs.

The victim testified that this touching had occurred only once, in the car coming home from Macon. She testified that Withman told her not to tell.

The investigating police officer confirmed that the victim had told her that Withman touched her buttocks and breasts, and that in the car on the way home from Macon he was “playing in her vaginal area.” The officer also testified that after Withman had been advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), he stated that he could not deny having touched the victim on her buttocks and breasts.

Decided September 1, 1993.

J. Philip Carr, for appellant.

Joseph H. Briley, District Attorney, for appellee.

Even focusing exclusively on the incident in the car and ignoring the other incidents described, as does Withman in his brief, we do not agree that the State failed to prove venue. Although the victim testified she did not know where the car was when Withman touched her, OCGA § 17-2-2 (e) provides that “[i]f a crime is committed upon any . . . vehicle . . . traveling within this state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the . . . vehicle . . . has traveled.” The adults who were in the car at that time testified that the car was driven from Macon to Milledgeville through Gray, a route that included Baldwin County.

The court charged the jury that the State was obligated to prove venue beyond a reasonable doubt, and that this could be done by direct or circumstantial evidence. The jury was also properly instructed on OCGA § 17-2-2 (e). See Taylor v. State, 183 Ga. App. 314, 317-318 (12) (358 SE2d 845) (1987). Sufficient proof of venue existed to support the verdict.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A1547.
    DIXIELAND TRUCK BROKERS, INC. v. INTERNATIONAL INDEMNITY COMPANY.
    (435 SE2d 520)
   Birdsong, Presiding Judge.

This is an appeal from a grant of summary judgment to plaintiff International Indemnity Company, in its suit against Dixieland Truck Brokers, Inc., for insurance premiums allegedly owed. The trial court awarded International $73,016 principal, $25,566.71 interest, and 12 percent post-judgment interest. Apparently, International was assigned by the Automobile Insurance Assigned Risk Pool to issue automobile coverage for Dixieland beginning in September 1989. This suit was filed in December 1990.

Attached to the original complaint is a June 22, 1990, letter from an insurance agent to International, stating that Mr. Hollowell, the owner of Dixieland, “disputes this bill.” The agent’s letter gave reasons for Hollowell’s repudiation of “this bill,” to-wit, that International had not filed government-required documents, that “the Assigned Risk Department stated that there had not been any rate increase.” The agent also stated that Dixieland had secured coverage from another carrier. Also attached to the complaint is a June 25, 1990 reply from International, asserting that indeed Dixieland owes the premium, and that Dixieland’s coverage commenced September 1, 1989. There is no “bill” or other original statement of account in the record.

Dixieland denied the material allegations and filed interrogatories to discover all motor carrier filings relating to the policies; the reasons for International’s failure to make such filings; the specific basis on which International calculated any debt; a list of all documents on which International relied; and other specific material information supporting International’s claim.

Instead of answering those interrogatories, International hired new counsel and filed a motion for summary judgment. The motion asserts: “The defense is totally and completely overcome by the Affidavit of Benny Byrd, Jr., which sets forth the transactions with regard to this case and completely accounts for said indebtedness.” This affidavit of Benny Byrd states he is vice president of International with supervision over its books and records, and that his review of those records “reveals an account balance due [from Dixieland] in the principal amount of $73,016.00.” Attached to the affidavit is only a short writing on International’s letterhead, stating: “The [Automobile Assigned Risk Pool] assigned our company to issue automobile coverage for Dixieland. ... We issued automobile policies as indicated below, and an additional premium is due on each policy.” The writing then names three policies and states a premium amount due for each.

Dixieland responded with an affidavit of its owner, Mr. Hollowell, denying that Dixieland owed International any premiums and stating that part of the premiums Dixieland had paid were assessed for regulatory filings which International never made; that International had not applied certain credits; and that when the insurance contract was entered, “I was assured that there would be no increase in premiums over [previous coverage],” but International’s premium was “an increase of approximately 300 percent.”

Dixieland also presented the affidavit of the insurance agent, averring that he procured insurance for Dixieland, and in his opinion, International’s demand for “coverage allegedly provided” during portions of 1989-1991 was “excessive for the coverage provided [and has] been improperly calculated.”

Dixieland moved to strike the affidavit of International’s vice president, Benny Byrd, as mere conclusion unsupported by sworn or certified copies of account records as required by OCGA §§ 9-11-56 (e) and 24-3-14. The trial court did later strike Benny Byrd’s affidavit, but not before Benny Byrd filed another affidavit stating: “I have reviewed the affidavit of [Dixieland’s owner] and find that it is flawed and incorrect.” Benny Byrd stated that the reason no regulatory filings were made by International was that Dixieland refused to pay the premiums, which was fully explained to Hollowell in a March 1989 letter, attached; that he never told Dixieland there would be no increase in premiums and he did not know who did; that Hollowell had not specified any credits; and that the agent’s affidavit had been completely refuted by the aforesaid and by the June 25, 1990 letter to the agent “in which the details of these policies were explained.” Held:

1. International’s motion for summary judgment was wholly unjustified and unsupported. The only evidence of any debt is International’s ipse dixit. There is no contract of insurance in the record. There is no “bill” or invoice in the record. The record shows International was assigned by a “risk pool” to provide coverage for Dixieland; a contract was entered and some premium was paid, but the contract was repudiated; International failed to perform duties under it because Dixieland did not pay; and Dixieland procured coverage elsewhere. In fact, there is no evidence that insurance coverage by International ever existed. International’s vice president, Benny Byrd, stated that International never performed certain duties because Dixieland had not paid the premiums. It thus appears from International’s affidavit that if a catastrophe had occurred, International could have denied coverage. As far as this record shows, there was no coverage. The existence of any contract, or performance thereof, is a matter of conjecture and is proved only by conclusory statements.

2. Moreover, even assuming a contract of coverage had been proved and that an indebtedness of some kind had been established, there is no clue how International arrived at $73,016 as the premiums owed. There are no contracts of insurance, no bills, no invoices, and no evidence of any agreement by Dixieland to pay that amount or any amount.

There is no evidence that these alleged premiums are a claim which draws interest monies. See OCGA § 9-12-10. It is a bold stroke for International to claim about 60 percent interest ($25,566.61 for six months from March 1990, when International apparently sent a “bill,” to December 1990, when this suit was filed) or about 30 percent interest if figured from the date the alleged coverage commenced, September 1989, to the date this suit was filed. There is no evidence coverage existed beyond that date, if ever. In fact, the record shows that by June 1990, Dixieland had completely repudiated the alleged coverage and at some point obtained coverage elsewhere. The fact that the trial court was in error and gave summary judgment in these amounts, and even awarded post-judgment interest on the interest, contrary to OCGA § 9-12-10, does not add bona fides to International’s claims and motion for summary judgment.

Decided September 1, 1993.

Simpson & Gray, Joseph B. Gray, Jr., Elizabeth B. Gibbs, for appellant.

Clark & Mascaro, Mike A. Aziz, for appellee.

Rather than answer Dixieland’s interrogatories and provide evidence to support its claims, International demanded judgment based merely on an assertion of debt, on unsupported and unproved conclusions in affidavits with no original business records, bills, invoices, . contracts or other evidence of debt. Conclusory and unsupported affidavits are insufficient to sustain a summary judgment. Taquechel v. Chattahoochee Bank, 260 Ga. 755, 756 (400 SE2d 8); Pratt v. Tri City Hosp. Auth., 193 Ga. App. 473 (388 SE2d 69); see Tyner v. Sheriff, 164 Ga. App. 360 (297 SE2d 114). The unsupported “summary” of policies and premiums is inadmissible hearsay, without probative value at trial or on motion for summary judgment. See E. H. Crump Co. v. Millar, 200 Ga. App. 598, 601 (409 SE2d 235); Thomasson v. Trust Co. Bank, 149 Ga. App. 556, 559 (254 SE2d 881).

3. Even if International had produced proper business records, the fact that International charged Dixieland for premiums does not prove Dixieland owes anything. Kinney v. American Mfg. Mut. Ins. Co., 189 Ga. App. 882, 883 (377 SE2d 900). The claim is wholly in dispute and unsupported by any proof of an agreement, a contract, performance and money owed.

On motion for summary judgment, the burden is on the movant, International, to establish the absence of any genuine issue of material fact and its right to recover as a matter of law. OCGA § 9-11-56 (c); Kinney, supra. The party opposing the motion, Dixieland, is entitled to all favorable inferences and the benefit of every doubt, and the evidence is construed most strongly in its favor. Clark v. Assurance Co. of America, 156 Ga. App. 526 (2) (275 SE2d 111). International made no prima facie case for any debt, certainly not one earning 30 to 60 percent interest. The trial court erred in granting summary judgment to International.

Judgment reversed.

Pope, C. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A1479.
    ROGERS v. THE STATE.
    (435 SE2d 457)
   McMurray, Presiding Judge.

Following a fist fight in which defendant inflicted a serious, disfiguring injury to the victim’s left eye, defendant was indicted and charged with aggravated assault. The jury returned a verdict of guilty and defendant was sentenced to five years in confinement (to serve three months). In addition, defendant was ordered to pay restitution to the victim in the amount of $1,347.46 and to the victim’s insurance company in the amount of $5,029.47. Defendant moved for a new trial. His motion was denied and he appeals. Held:

1. The evidence was sufficient to enable any rational trier of fact to find defendant guilty of aggravated assault beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Chafin v. State, 154 Ga. App. 122, 123 (5) (267 SE2d 625); Russell v. State, 152 Ga. App. 693 (1) (263 SE2d 689).

2. “ ‘A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. (Cit.)’ Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990), A conviction will not be reversed based on ineffective assistance of counsel unless ‘ “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Cits.)’ Hosch v. State, 185 Ga. App. 71 (2) (363 SE2d 258) (1987). ‘In order to prevail defendant must meet two tests: 1) he must show that trial counsel’s performance was deficient in that he made errors so serious that he was not functioning as the “counsel” guaranteed defendant by the Sixth Amendment; 2) defendant must show that the defense was prejudiced by the deficient performance so that defendant was deprived of a fair trial, one whose results were reliable. (Cit.) Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that (the appellant’s) original representation was inadequate. (Cits.)’ (Indention omitted.) Id. at 72.” Williams v. State, 202 Ga. App. 494, 495 (414 SE2d 716).

Defendant asserts his trial counsel was ineffective because she failed to lodge objections to patently objectionable questions, failed to question prosecution witnesses about a civil suit they brought against defendant, and failed to adequately spell out defendant’s theory of defense. (With regard to the latter shortcoming, defendant points out that when.the trial court asked defense counsel to state defendant’s theory of defense, she opined that defendant’s defense was based on mutual combat and justification. Defendant also points out that mutual combat and justification cannot stand side by side. See Pendergrass v. State, 199 Ga. App. 467 (405 SE2d 297).) However, defendant has not shown how he was prejudiced by defense counsel’s performance. (With regard to defense counsel’s mutual combat faux pas, we note that the trial court did not charge the jury on mutual combat. Rather, the trial court simply charged the jury on the law of justification.) Accordingly, it cannot be said that the trial court abused its discretion in refusing to grant a new trial based on a claim of ineffective assistance of counsel. Powell v. State, 198 Ga. App. 509 (1) (402 SE2d 108).

Decided August 16, 1993

Reconsideration denied September 2, 1993.

Summer & Summer, Daniel A. Summer, for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

3. The trial court did not err in requiring defendant to pay restitution to the victim’s insurance company. See Sutton v. State, 190 Ga. App. 56 (378 SE2d 491).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Beasley, Presiding Judge.

text:
    A93A1274.
    WELLS v. THE STATE.
    (435 SE2d 523)
   Beasley, Presiding Judge.

Appellant was convicted of violating OCGA § 40-6-391 (a) (1), for actual physical control of a moving vehicle while under the influence of alcohol to the extent that it was less safe to drive; OCGA § 40-6-391 (a) (4), for actual physical control of a moving vehicle within three hours of the time when alcohol concentration was .10 grams or more; and OCGA § 40-6-184, for intentionally impeding the normal and reasonable movement of traffic by slow driving. At issue is whether defendant was deprived of a meaningful opportunity to obtain an independent blood test while in police custody.

A Chatham County police officer testified that at approximately 2:00 a.m., he got behind a vehicle being driven by appellant in the passing lane. He was going 30 mph in a 55-mph zone. The officer flashed his lights several times. Appellant continued driving in the passing lane, so the officer stopped him. Appellant exited the vehicle in a loud and belligerent manner. His eyes were bloodshot and he emitted a strong odor of alcohol. The officer placed him. under arrest, read the implied-consent rights under OCGA § 40-6-392 (a) (3), and asked if he would submit to a breath test. Appellant stated he would submit to a blood test, which was administered to him at the police station.

After the blood was drawn, appellant stated that he wanted another blood test. The officer gave him access to a telephone and the use of a telephone book. He told appellant he could call anybody he desired to administer an independent test. If he could find someone to do it, the officer would take him to the doctor or hospital, or he would allow someone to come to the police department to draw appellant’s blood. The officer further testified that appellant made three or four calls. Appellant called his physician but could not reach him. Instead, he talked to a physician on call, Dr. Tillinger, who refused to order a blood test. Appellant also called his lawyer, who hung up on him. He called Memorial Hospital as well.

After about an hour of failed attempts by appellant to arrange for a blood test, he was placed in a holding cell, later transported to the county jail, and released on bond the following day.

Appellant represented himself at trial. In cross-examining the officer, he sought to establish that he had requested the officer to take him to a hospital emergency room; that the emergency room would have administered a blood test to him if he had appeared at the emergency room and was able to pay for it, which he was; but that the emergency room would not agree over the phone to administer a blood test.

The officer testified that appellant had not asked to be taken to the emergency room, and that following appellant’s phone call, he told the police the emergency room would not draw his blood without a doctor’s order that night but would do so the next day. The officer testified that if the hospital or emergency room had told appellant that it would have drawn his blood that night, the officer would have taken him there.

Another officer, who was present when appellant was brought to the police station, likewise testified that appellant said the hospital told him they would not draw his blood without a doctor’s order and he would have to come in the next day. He also testified without objection that no hospital in the county will perform a blood test without a doctor’s order.

Dr. Tillinger testified that although an emergency room will do blood work on a patient if it is indicated, he did not think an emergency room would draw blood for the purpose of testing alcoholic content without a doctor’s order.

Although it is clear from appellant’s cross-examination of the arresting officer that he was contesting the admissibility of the results of the blood test, he did not formally object to this evidence when it was admitted during the testimony of the state’s forensic toxicologist. Nor does it appear that he invoked any express ruling from the trial court as to its admissibility. The state does not argue that appellant’s enumeration was not preserved for appellate review but rather addresses the merits. The issue is marginally raised sufficiently to warrant our consideration. OCGA § 5-6-30.

Appellant contends that the police refused to transport him to a hospital emergency room for an on-duty doctor there to draw his blood. However, there was evidence that appellant was told over the phone his blood could not be drawn until the next day unless he had a doctor’s order. Appellant argues that he reached an on-call physician at a nearby hospital who would have ordered a blood test if the physician could have talked to the police over the phone, but the police refused even to talk to him. The evidence does not support this argument. Dr. Tillinger, to whom defendant refers, was not at a hospital and did not testify that he would have given an order if he had first talked to the police.

Appellant also argues that requiring him to arrange his own test at 3:00 a.m. was unreasonable, and that if the police had taken him to a hospital, he would have been able to make the arrangements in person. As to the first argument, the time of day is not shown to have imposed a greater duty on the police or to have excused defendant from making his own arrangements. As to the second argument, there is no evidence that if defendant had been taken to a hospital, a blood test likely would have been performed.

“While it is not the officer’s duty to insure the performance of an independent test, he cannot prevent a defendant from exercising his right to such a test. [Cit.] The statute . . . states that ‘the justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.’ It is incumbent on the trial court to determine whether the failure or inability to obtain the additional test is justified. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test. Factors to be considered include, but are not limited to, the following: (1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the accused’s requests; (3) availability of police time and other resources; (4) location of requested facilities, e.g., the hospital to which the accused wants to be taken is nearby but in a different jurisdiction; (5) opportunity and ability of accused to make arrangements personally for the testing.” State v. Buffington, 189 Ga. App. 800, 801-802 (377 SE2d 548) (1989).

Butts v. City of Peachtree City, 205 Ga. App. 492, 493 (2) (422 SE2d 909) (1992); Akin v. State, 193 Ga. App. 194 (387 SE2d 351) (1989); Buffington, supra; and State v. Hughes, 181 Ga. App. 464 (352 SE2d.643) (1987), involve law enforcement agencies which have policies of transporting DUI arrestees who request independent tests to nearby hospitals which perform such tests to persons who appear and are able to pay for them. See also Lovell v. State, 178 Ga. App. 366, 368 (2) (343 SE2d 414) (1986).

Decided September 2, 1993.

Karen D. Barr, for appellant.

Spencer Lawton, Jr., District Attorney, James J. Cairns III, Assistant District Attorney, for appellee.

However, there is no evidence that there was a hospital in the locality of defendant’s arrest which would have performed a blood test on him without a doctor’s order if the officer had transported him there. Absent such evidence, there was no duty on the part of the officer to transport defendant to Memorial Hospital, and the officer satisfied his duty by informing defendant of his right to an independent test and giving him the opportunity to make arrangements for one by providing him with a telephone and telephone book. See Lovell, supra; Harper v. State, 164 Ga. App. 230 (1) (296 SE2d 782) (1982); compare Butts, supra; Akin, supra; Buffington, supra; Hughes, supra.

“Where a defendant makes no arrangements to secure an inde- - pendent test, the mere fact that it was not made ‘fails to disclose any reason to suppress the evidence merely because the defendant was unable to obtain a test of his own choosing.’ [Cit.] Before the duty of the police arises to transport a defendant to the location of the test, [defendant] must first show that he had made arrangements with a qualified person of his own choosing, that the test would be made if he came to the hospital, that he so informed the personnel at the jail where he was under arrest, and that those holding him then ‘either refused or in any event failed to take him to the hospital for that purpose.’ [Cit.]” Harper, supra at 231.

The evidence authorized a finding that under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused in his request for an independent test.

Judgment affirmed.

Cooper and Smith, JJ., concur.


author: Andrews, Judge.

text:
    A93A0891.
    RIDGEWAY et al. v. WHISMAN et al.
    (435 SE2d 624)
   Andrews, Judge.

The natural parents of Linda Whisman sued Victoria Ridgeway for the wrongful death of their daughter, Linda, who was killed in an automobile accident while driving Ridgeway’s car. The trial court denied Ridgeway’s motion for summary judgment, and we granted her application for this interlocutory appeal.

At about 2:00 a.m. on the day prior to the fatal accident, the decedent, Whisman, age 22, and Ridgeway began consuming beer and other alcoholic beverages. They each consumed six or seven beers at Whisman’s residence prior to being driven by a friend to a bar at about 7:00 p.m., where they continued to drink, and Whisman consumed more beer and some mixed drinks. They left the bar together at about 2:00 a.m., and the same friend drove them back to Whisman’s residence, at which time Whisman became upset because her fiancé was not there. At about 3:00 or 4:00 a.m. Whisman, who had the keys to Ridgeway’s car from having driven it earlier the previous day, stated she was going, with or without Ridgeway, to look for her fiancé. Ridgeway testified on deposition that, because of the alcohol they had consumed, neither she nor Whisman was in any condition to drive an automobile. After Ridgeway unsuccessfully attempted to dissuade Whisman, she nevertheless allowed Whisman to drive her car, and accompanied her as a passenger. At about 4:40 a.m., evidence shows Whisman lost control of the car, as the result of her own driving, or the negligence of an alleged “John Doe” driver of another car, or both, and drove off the road. In the ensuing crash, Whisman died, and Ridgeway was injured.

The action against Ridgeway is based on the theory that Ridge-way negligently entrusted her automobile to Whisman, who she knew to be intoxicated, and that Ridgeway’s negligence in so doing was a proximate cause of Whisman’s death. It is well settled that one who negligently entrusts an automobile to a noticeably intoxicated driver, may be held liable for injuries to third parties caused by the intoxicated driver’s negligent operation of the automobile. “[A] person who entrusts a motor vehicle to an incompetent driver who is likely to cause injury to others through its use is liable for any damages resulting therefrom, and this principle has generally been applied to cases where one entrusts a vehicle to another who he knows, or should know, is intoxicated. . . .” Jones v. Cloud, 119 Ga. App. 697, 699 (168 SE2d 598) (1969); Crisp v. Wright, 56 Ga. App. 338, 341 (192 SE 390) (1937). We are not, however, aware of any Georgia cases where one who negligently entrusts an automobile to a voluntarily intoxicated person has been held liable for injuries to the entrustee resulting from the entrustee’s negligent operation of the automobile.

The conduct of one who voluntarily becomes intoxicated is measured by the same standards as those applicable to a sober person. Shuman v. Mashburn, 137 Ga. App. 231, 233-234 (223 SE2d 268) (1976). Thus, for purposes of determining Whisman’s negligence or contributory negligence in causing the fatal accident, any condition, disability or incompetence which was produced by her voluntary intoxication may be disregarded, and her operation of the vehicle judged as if she was in possession of her normal mental and physical capacities. Id. Contributory negligence, which acts as a bar to a plaintiff’s right of recovery, is comprised of two distinct defenses: (1) at all times a plaintiff must use ordinary care for his own safety, and must not, by his own negligence, be the sole proximate cause of his own injuries, and (2) a plaintiff must use ordinary care to avoid the defendant’s negligence when such negligence is apparent or should in the exercise of ordinary care be apparent to him. Whatley v. Henry, 65 Ga. App. 668, 674 (16 SE2d 214) (1941). The liability of the owner in a negligent entrustment action does not result from imputing the negligence of the incompetent driver to the owner, rather “[n]egligént entrustment of a motor vehicle to an incompetent driver is an independent wrongful act of the vehicle’s owner which is a concurrent, proximate cause of injury when it combines with the negligence of the operator.” Adams & Adams, Ga. Law of Torts, § 12-5 (1989); McKinney v. Burke, 108 Ga. App. 501, 504 (133 SE2d 383) (1963). Accordingly, where the contributory negligence of the entrustee is the sole proximate cause of the plaintiff’s injury, the plaintiff is barred from recovery against the negligent entrustor because the entrustor’s independent negligence is not the proximate cause or concurrent proximate cause of the plaintiff’s injury. Saunders v. Vikers, 116 Ga. App. 733, 735 (158 SE2d 324) (1967); compare Restatement of Law, Torts 2d, § 390, comment c.

Except in plain and indisputable cases, questions of negligence, diligence, contributory negligence and proximate cause are jury questions. Taylor v. McClendon, 205 Ga. App. 390, 391 (422 SE2d 440) (1992). This is such a plain and indisputable case. For purposes of determining whether Whisman was contributorily negligent in her operation of the automobile, we disregard any diminished mental or physical capacity produced by her voluntary intoxication, and hold her to the same standards applicable to a sober driver. Applying these standards, we find as a matter of law that either Whisman’s negligent operation of the automobile, or the negligent driving of the “John Doe” driver who allegedly forced Whisman off the road, or the concurrent negligence of both, was the proximate cause of Whisman’s death. In other words, any negligence of Ridgeway in entrusting her car to Whisman while she was intoxicated was neither the sole proximate cause nor a concurrent proximate cause of the accident which caused Whisman’s death. Moreover, this ruling is consistent with the principle applied in other cases that a noticeably intoxicated driver has no right of recovery against the provider of the alcohol. “Although the provider owes a duty not to provide alcohol to a driver who is noticeably intoxicated, the driver also owes a duty to exercise ordinary care for his own safety. As between provider and consumer, the consumer has the last opportunity to avoid the effect of the alcohol, by not drinking or not driving, and thus as between the two, the negligence of the consumer is the greater. Hence, notwithstanding the fact that the provider as well as the consumer should foresee the possibility of injury to the consumer, the consumer cannot recover for his injuries from the provider.” Sutter v. Hutchings, 254 Ga. 194, 198, n. 7 (327 SE2d 716) (1985) (citations and punctuation omitted); Spivey v. Sellers, 185 Ga. App. 241, 242 (363 SE2d 856) (1987).

Decided September 3, 1993.

Downey, Cleveland, Parker, Williams & Davis, Y. Kevin Williams, Rodney S. Shockley, for appellants.

Greer, Klosik & Daugherty, Richard G. Greer, Robert F. Webb, Kris K. Skaar, for appellees.

Since any negligence of Ridgeway was not the proximate cause or concurrent proximate cause of Whisman’s death, recovery on the negligent entrustment action is barred, and the trial court erred by denying Ridgeway’s motion for summary judgment.

Judgment reversed.

Pope, C. J., and Birdsong, P. J., concur.

       The Whismans also sued a “John Doe” driver of another vehicle they claim caused the accident. Liability in that cause of action is not at issue here.

       Although there is some evidence that Whisman was also upset and had not slept when she drove the car, we find no evidénce that these conditions, apart from her voluntary intoxication, would support the cause of action for negligent entrustment.

       We render no opinion as to proximate cause in the separate cause of action by Whisman’s parents against the “John Doe” driver who they claim forced Whisman off the road, causing the fatal accident.


text:
    A93A1801, A93A1802.
    HOOKS v. THE STATE (two cases).
    (435 SE2d 617)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of kidnapping (Count 1), aggravated battery (Count 2), robbery (Count 3) and theft by taking (Count 4). Defendant appealed after the denial of his motion for new trial and his convictions were affirmed by this court in an unpublished opinion. See Hooks v. State, 201 Ga. App. XXVIII (1991). Defendant later appeared in the trial court and filed, pro se, a motion for correction of the record and an extraordinary motion for new trial, contending that the trial transcript is inaccurate; that his trial and appellate attorneys were ineffective; that the evidence is insufficient to support the verdicts; that the State’s attorney improperly relied on the victim’s perjured testimony and that the State’s attorney made false statements to the jury, in violation of OCGA § 17-8-75. The trial court denied’these motions in separate orders.

Decided August 19, 1993

Reconsideration denied September 7, 1993

Nelson A. Hooks, pro se.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Henry M. Newkirk, Assistant District Attorneys, for appellee.

Defendant filed a direct appeal from the denial of his motion for correction of the record in Case No. A93A1801. Defendant filed a direct appeal from the denial of his extraordinary motion for new trial in Case No. A93A1802. Held:

Appeals from the denial of extraordinary motions for new trial, when separate from an original direct appeal, are subject to the discretionary appeal procedure of OCGA § 5-6-35. OCGA § 5-6-35 (a) (7); Walls v. State, 204 Ga. App. 348 (419 SE2d 344). In the cases sub judice, defendant’s post-appeal motions constitute extraordinary motions for new trial since the motions were filed more than 30 days after the entry of judgment. See OCGA §§ 5-5-40; 5-5-41; Dick v. State, 248 Ga. 898 (1) (287 SE2d 11); Williams v. State, 254 Ga. 6, 9 (2) (326 SE2d 444). Consequently these direct appeals must be dismissed since they are separate from defendant’s original appeal. Davis v. State, 182 Ga. App. 736 (356 SE2d 762). See Walls v. State, 204 Ga. App. 348, supra.

Appeals dismissed.

Johnson and Blackburn, JJ., concur.


text:
    A93A1045.
    WOODS v. THE STATE.
    (435 SE2d 464)
   Andrews, Judge.

Woods appeals from his conviction by a jury for selling cocaine in violation of the Georgia Controlled Substances Act. OCGA § 16-13-30 (b). He was positively identified at trial by the undercover police officer to whom he sold the cocaine, and a video and audio tape of Woods selling the cocaine to the officer was played to the jury.

1. Woods claims the trial court improperly limited his cross-examination of the undercover police officer. The officer who made the drug purchase from Woods subsequently resigned from the police force because of allegations that he may have used illegal drugs. He was not charged with any crime, and the alleged drug use was not connected to the drug sale at issue. Defense counsel sought to question the former officer regarding the circumstances of his resignation to attack his general credibility as a witness. In granting the State’s motion in limine, the trial court ruled that defense counsel could not inquire into allegations that the former officer had used illegal drugs.

The defense was not entitled to challenge the former officer’s credibility by questioning him about allegations of illegal drug use unrelated to this case to raise an inference that he was not worthy of belief. “Instances of specific misconduct may not be used to impeach a witness’ character or veracity unless the misconduct has resulted in the conviction of a crime involving moral turpitude, and the proper method of proving such a conviction is by the introduction of a certified copy thereof.” (Citations and punctuation omitted.) Hall v. State, 180 Ga. App. 881, 884 (350 SE2d 801) (1986); Brooks v. State, 182 Ga. App. 144, 146 (355 SE2d 435) (1987). “ ‘[E]xcept as specifically allowed by law, [evidence] of a witness’ conduct in other transactions, criminal or otherwise, having no logical connection with the subject matter of his testimony[, is inadmissible]. . . .’ Rewis v. State, 109 Ga. App. 83, 86 (134 SE2d 875) (1964).” Scott v. Chapman, 203 Ga. App. 58, 59 (416 SE2d 111) (1992).

Woods also argues on appeal that he should have been allowed to cross-examine the former officer to discover if he was biased by any possible deal which might have existed to protect him from prosecution for drug use in return for his favorable testimony in the case. In the trial court, defense counsel argued only that the cross-examination should be allowed to attack the witness’ veracity and credibility — no argument was made, and no ruling was entered by the trial court, with regard to allowing the defense to question the witness about any bias resulting from a secret deal. Accordingly, we find no error. Haynes v. State, 199 Ga. App. 288, 291 (404 SE2d 585) (1991).

2. Woods argues the trial court erred by admitting the videotape of the drug sale taken with a hidden camera. The hidden camera was equipped with a “right angle lens,” a periscope-like device which uses a mirror to reflect the images of objects within the view of the lens. The camera videotapes the virtual images reflected in the mirror, rather than the actual objects before the lens. Accordingly, the videotape records reverse mirror images of the actual events.

Because the videotape showed reverse mirror images of the drug transaction, Woods claims it did not accurately depict the events, and the trial court should have granted his motion to exclude this evidence. Other than showing mirror images, Woods does not claim the videotape does not accurately depict the actual events. He does not point to any portion of the videotape in which the reverse mirror image caused a material variation from the actual events tending to mislead the jury. See Cleveland v. State, 204 Ga. App. 101, 103 (418 SE2d 430) (1992) (enlarged photograph admissible where it has no tendency to mislead); Cheeks v. State, 203 Ga. App. 47, 50 (416 SE2d 336) (1992) (videotape of crime scene taken eight months after crime, not rendered inadmissible by immaterial variations). “Georgia follows a liberal policy in the admission of photographic [or videotape] evidence. Whether, under the evidence, the photograph or [video] tape is a fair and accurate representation of the scene sought to be depicted addresses itself to the discretion of the trial judge which will not be controlled unless abused.” (Citation omitted.) Eiland v. State, 130 Ga. App. 428, 429 (203 SE2d 619) (1973). There was no abuse of discretion in this case.

3. Woods claims that at the pre-trial hearing held to consider admission of similar transaction evidence, the trial court considered unsworn testimony upon which it erroneously decided to allow admission of evidence that Woods had been previously convicted of selling a similar amount of cocaine in the same area in substantially the same manner as the present case. Woods’ only objection at trial was that the prior offense was not sufficiently similar so that it tended to prove the charged offense. Since the objection argued on appeal was not raised in the trial court, it presents nothing for this court to review. Walker v. State, 208 Ga. App. 690 (431 SE2d 459) (1993); Self v. State, 208 Ga. App. 447 (431 SE2d 126) (1993).

4. There was no error in the trial court’s instruction on parties to a crime. OCGA § 16-2-20. There was evidence from which the jury could have concluded that Woods acted alone, or as the accomplice of another party who delivered the cocaine to the scene.

5. Woods claims the evidence was not sufficient to support the conviction. As additional grounds, he claims the verdict was contrary to the law, the evidence, and the weight of the evidence. “Although a claim that the verdict is against the weight of the evidence is addressed to the trial judge, and not to this Court (Daniel v. State, 180 Ga. App. 687, 688 (350 SE2d 49) (1986)) the remaining [additional] claims will be considered as relating to the sufficiency of the evidence. Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988).” Woods v. State, 208 Ga. App. 565, 567 (3) (431 SE2d 167) (1993). There was ample evidence for a rational trier of fact to find Woods guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided August 20, 1993

Reconsideration denied September 8, 1993

O. Dale Jenkins, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.


text:
    A93A1048.
    ROBINSON v. THE STATE.
    (435 SE2d 466)
   Blackburn, Judge.

The appellant, Steve Robinson, was convicted of kidnapping with bodily injury, aggravated battery, and burglary. On appeal, he attacks the sufficiency of the evidence to support the kidnapping conviction; the trial court’s failure to merge the kidnapping with bodily injury and the aggravated battery convictions; and the admission of his custodial statements and the evidence seized during a search of his home.

At the trial, the victim testified that on the evening of August 2, 1991, she went to her brother’s dry cleaning business to pick up the company books. Upon entering, she turned on the lights and started to telephone her mother, and then noticed Robinson standing in the office staring at her. Robinson, who was holding a steel pipe in one hand, grabbed her by the forearm and forced her into another room, where he asked if she could open the safe. When she explained that she could not, Robinson dragged her by the arm to the rear of the store and demanded her key to her van. Before the victim could remove the key from her key chain, Robinson pounded her face with gloved fists. The victim begged him to spare her life, but Robinson grabbed her hair and repeatedly banged her head on the concrete floor. He then covered her mouth and nose to suffocate her, and choked her until she was unconscious.

When the victim regained consciousness, she staggered out the back of the building, and eventually was discovered by two people as they were leaving a nearby restaurant. Although these two individuals were acquainted with the victim, they did not recognize her because her face was so swollen. One of the two was a physician, and he administered first aid until an ambulance arrived.

This physician testified at trial that a CT scan revealed a fracture of the right socket portion of the victim’s eye which was broken through to the ethmoid sinuses. Although the x-ray did not confirm the presence of a fracture, the victim’s nose was deviated. The victim also sustained damage to her inner ear, which caused nausea and vomiting and problems maintaining her balance, upon even minimal movement of her head. By the time of the trial, the victim had improved, but she remained unable to walk without the assistance of a walker.

Robinson testified and admitted to the burglary. He explained that he had been smoking crack cocaine, and had broken into the dry cleaning store to take something of value in order to buy more cocaine. He stated that when the victim noticed him after walking in unexpectedly, she ran towards the rear of the store. He admitted chasing after her and striking her, but denied having any intent to injure her. He felt that he was innocent of kidnapping.

1. Robinson initially contends that the evidence was insufficient to support the conviction for kidnapping with bodily injury under OCGA § 16-5-40 (b), because the state failed to show the essential element of asportation. However, only the slightest movement of the victim is required to establish that element. See Haynes v. State, 249 Ga. 119 (288 SE2d 185) (1982); Chambley v. State, 163 Ga. App. 502 (295 SE2d 166) (1982). The victim’s testimony regarding how Robinson grabbed her arm and forced her to the office and the rear of the premises satisfied that requirement in the instant case.

2. Robinson next contends that the evidence of the aggravated battery was also used to prove the bodily injury element of the offense of kidnapping with bodily injury, and thus the aggravated battery merged with the kidnapping offense pursuant to OCGA §§ 16-1-6 and 16-1-7. However, we note that kidnapping is not a continuous crime; it is completed when the victim has been seized and asported to some degree. Miller v. State, 174 Ga. App. 42 (3) (329 SE2d 252) (1985). Similarly, the offense of kidnapping with bodily injury is completed when the kidnapping and some bodily injury occurs. For the purposes of OCGA § 16-5-40 (b), bodily injury is accomplished “by inflicting any physical injury upon the victim’s body however slight.” Green v. State, 193 Ga. App. 894, 896 (389 SE2d 358) (1989).

In the instant case, the state established all the necessary elements of kidnapping with bodily injury upon showing that Robinson grabbed the victim’s arm, forced her to the rear of the store, and then struck her in the face. The offense of aggravated battery was shown by the evidence of Robinson’s subsequent banging the victim’s head against the concrete floor and choking her, which resulted in the victim’s balance problem and inability to walk without the use of a walker.

In short, the kidnapping with bodily injury and the aggravated battery occurred sequentially, and the former was completed when the latter was perpetrated. “Under the circumstances of this case, the same conduct is not being punished twice nor is one act included in the other so as to proscribe the separate conviction and punishment for each act.” (Citations and punctuation omitted.) Strozier v. State, 171 Ga. App. 703, 706 (320 SE2d 764) (1984).

3. Lastly, Robinson contends that the trial court erred in denying his motion to suppress his custodial statements and the evidence seized during a search of his home. We also find this contention to be without merit.

At the Jackson-Denno hearing, the arresting officer testified that because a witness saw Robinson running from the area of the incident carrying what appeared to be a purse, he went to Robinson’s residence and asked him if he would go to the police station and discuss the incident. Robinson volunteered to go, and, after he was advised of his Miranda rights, gave a statement that he had been in the area that evening playing basketball. During the interview, when Robinson pulled out a pack of cigarettes which matched the brand of cigarette butts found on the floor of the dry cleaning store, the officer became suspicious and asked for permission to search Robinson’s home. Robinson signed a consent to search.

The search uncovered camouflage pants matching the description given by the witness who saw Robinson with the purse, a work shirt, and a pair of boots which matched a boot print left on the floor of the store. Later that day, an arrest warrant for Robinson was obtained. After his arrest, Robinson appeared before a magistrate and again was informed of his Miranda rights. Robinson at first continued to deny any involvement in the incident, but he finally admitted to the burglary and attack on the victim.

During the Jackson-Denno hearing, Robinson acknowledged volunteering to go to the police station for questioning, but stated that he thought the officers were going to take him there in any event. He also acknowledged that the officers had asked for permission to search his house and that he had signed a consent form, but he explained that he thought the form he signed was a search warrant, and that the officers probably would have searched his home even if he had not consented. He claimed that when he appeared before the magistrate, he indicated he wanted to hire an attorney, and the magistrate informed him that he would not get a bond until he obtained a lawyer. (The interrogating officer who also was present during the appearance did not recollect Robinson requesting an attorney or the magistrate making such a remark.) Robinson also explained that he eventually confessed to the crime during the interrogation that followed, because the officers warned him that family members of the victim might kill him if he were released.

Where there is a conflict in the evidence on a motion to suppress, the trial court sits as the trier of fact, and his findings will not be disturbed if there is any evidence to support them. State v. Holton, 205 Ga. App. 434 (2) (422 SE2d 295) (1992); State v. White, 197 Ga. App. 426 (398 SE2d 778) (1990). In the instant case, the trial court decided all the factual issues concerning the voluntariness of Robinson’s custodial statements and the permission to search his home adversely to Robinson, and there is evidence to support those findings.

Decided August 20, 1993

Reconsideration denied September 8, 1993.

Lindsey & Jacobs, Tamara Jacobs, Adams & Adams, W. Allen Adams, Jr., for appellant.

Johnnie L. Caldwell, Jr., District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


author: Blackburn; Judge.

text:
    A93A1060.
    LAKE TIGHTSQUEEZE, INC. et al. v. CHRYSLER FIRST FINANCIAL SERVICES CORPORATION.
    (435 SE2d 486)
   Blackburn; Judge.

The appellants, Lake Tightsqueeze, Inc. and George E. McGriff, Jr., its president, brought this action against the appellee, Chrysler First Financial Services Corporation (Chrysler), based upon the appellee’s breach of an “agreement” executed by the parties for the future financing of residential lots by the appellee. The appellee responded, asserting several defenses and a counterclaim for payment based upon an unconditional guarantee executed in its favor by appellant McGriff on a loan between appellant Lake Tightsqueeze, Inc. and Chrysler. The appellants amended the complaint to assert a claim for fraud and specifically asserted that the appellee made intentional, reckless and negligent misrepresentations to the appellants, both orally and in writing. After discovery was commenced, the appellee moved for summary judgment on the appellants^ claims and on the appellee’s counterclaim, and both motions were granted by the trial court. This appeal followed.

The “contract” that is in issue is a letter of June 5, 1990 written by Robert Hardin, the branch manager of Chrysler, to McGriff confirming an agreement reached by Chrysler and appellant Lake Tight-squeeze, Inc. concerning a loan to Lake Tightsqueeze, Inc. in the amount of $125,000, and a conditional agreement made by Chrysler to provide future financing on lots for Silver Leaf Resort area. The letter provided that the appellants had to meet several conditions before any future financing would be provided on the residential lots. With the exception of one application involving the sale of a clubhouse, McGriff did not submit any applications for approval, and pre-approval of all credit applications was one of the conditions addressed in the June 5, 1990 letter.

Charles Kersey, the assistant vice-president of Chrysler, stated in his deposition that the June 5, 1990 letter was only written to assist McGriff because he had indicated that he needed the letter as proof of Chrysler’s future intentions. This letter was not intended to indicate that Chrysler promised to provide financing of up to 1.5 million dollars on the residential lots. The letter merely expressed the future intentions of Chrysler, subject to the conditions contained therein. Kersey further indicated that it was not the standard procedure of Chrysler to put conditional intentions of this sort in writing. Robert Hardin indicated in his deposition that the June 5, 1990 document was a letter of intent to confirm what was discussed in an earlier meeting on May 23, 1990. Chrysler made loans to individual homeowners and did not provide a line of credit to developers. When Mc-Griff inquired about the financing of the lots after substantial changes in the circumstances of the subdivision and months after their initial meeting, Hardin informed McGriff that Chrysler no longer loaned money on individual real estate lots but was focusing on credit purchases for small retail items at that time.

In her deposition, Mary Braden, branch manager in the Decatur office, also testified that Chrysler does not make loan commitments to developers for the purchase of lots in any development. In her affidavit, she further noted that the promissory note executed by Lake Tightsqueeze, Inc. and the continuing guarantee agreement executed by McGriff were in default.

McGriff has admitted in his deposition that there were no oral representations made to him by Chrysler, and that Chrysler’s financing of the residential lots was contingent upon the approval of the application of consumers by Chrysler. Chrysler did finance nine loans on properties that McGriff developed and also took applications on the purchase of residential property at an auction sponsored by the appellants, although no lots were sold at that time because of the low bids that were received by the appellants. McGriff was unaware of any other loans submitted to Chrysler for approval and he acknowledged that no promises were made to him on behalf of Chrysler other than the statements made in the June 5, 1990 letter. In his affidavit, he acknowledges that the letter was not a complete agreement.

1. In their first enumeration of error, the appellants contend that the trial court erred in granting the appellee’s motion for summary judgment as to appellants’ claim for breach of contract. We disagree.

The letter of June 5, 1990, written by the branch manager of Chrysler was not an enforceable contract. “ ‘Unless an agreement is reached as to all terms and conditions and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect. (Cits.)’ [Cit.]” Hartrampf v. Citizens &c. Realty Investors, 157 Ga. App. 879, 881 (1) (278 SE2d 750) (1981). It is clear from the conditions in the letter that several contingencies would need to be met before the residential lots would be financed by Chrysler. Even assuming that the letter of intent was a contract, our state Supreme Court has held, “[w]here a contract is contingent on the meeting of some condition, it is not enforceable by either party until the condition has been met. . . .” Moore v. Buiso, 235 Ga. 730, 731 (1) (221 SE2d 414) (1975). Inasmuch as the financing of the residential lots in the instant case was contingent upon several conditions, which have not been shown to have been met, we conclude that summary judgment adjudication was proper.

2. In their second enumeration of error, the appellants contend that the trial court erred in granting the appellee’s motion for summary judgment as to the appellants’ promissory estoppel claim. However, in order to prevail on a promissory estoppel claim, “[the appellants] must demonstrate that (1) the [appellee] made certain promises, (2) the [appellee] should have expected that the [appellants] would rely on such promises, and (3) the [appellants] did in fact rely on such promises to [their] detriment. [Cit.]” Doll v. Grand Union Co., 925 F2d 1363, 1371 (5) (11th Cir. 1991). See also OCGA § 13-3-44. The record is devoid of any promises made by the appellee and appellant McGriff has admitted in his deposition that the appellee did not make any promises to the appellants. Further, the appellants have not shown that they relied to their detriment on any promises made by the appellee or that the appellee should have expected that the appellants would rely on such promises. Therefore, this enumeration is without merit.

3. The appellants contend that the trial court erred in granting the appellee’s motion for summary judgment for negligent, reckless, and intentional misrepresentations. However, the appellants have now shown that any misrepresentations have been made by the appellee and have in fact admitted that such representations have not been made. Consequently, this enumeration is also without merit.

4. In their fourth enumeration of error, the appellants contend that the trial court erred in summarily adjudicating their claim for breach of implied covenant of good faith under the Uniform Commercial Code. However, the implied obligation of good faith under the Uniform Commercial Code, specifically OCGA § 11-1-203, is applicable to sales of goods. Inasmuch as the instant case does not involve the sale of goods but the financing of residential lots, the obligation of the good faith doctrine under the Uniform Commercial Code is inapplicable. Moreover, even assuming arguendo that this doctrine was applicable to the facts of this case, the U. S. District Court has held in Mgmt. Assistance v. Computer Dimensions, 546 FSupp. 666, 677 (9) (N.D. Ga. 1982), that the failure to act in good faith in the performance of contracts or duties under the Uniform Commercial Code does not state an independent claim for which relief may be granted. Consequently, this enumeration is also without merit.

5. The appellants further contend that the trial court erred in granting summary judgment in favor of the appellee because the appellee tortiously interfered with their contractual relationships. “ ‘ “In establishing a cause of action for malicious (or tortious) interference with business relations, [the appellants] must demonstrate that the [appellee] (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the [appellants], and (4) for which the [appellants] suffered some financial injury.” (Cits.)’ [Cit.]” Nationwide Advertising Svc. v. Thompson Recruitment Advertising, 183 Ga. App. 678, 679-680 (359 SE2d 737) (1987); Shepard v. Federal Land Bank, 205 Ga. App. 254, 258 (3) (421 SE2d 763) (1992). “A cause of action for intentional interference with contractual rights must be based on ‘(t)he intentional and non-privileged interference by a third party with existing contractual rights and relations. . . . (Cits.)’ [Cit.]” (Emphasis supplied.) Life Chiropractic College v. Fuchs, 176 Ga. App. 606, 609 (2) (337 SE2d 45) (1985). The appellants have not shown that there are any existing contracts with third parties or that there has been any interference in any contractual relationships by the appellee. Moreover, a claim for tortious interference is only viable when the interference is done by one who is a stranger to the contract. Jefferson-Pilot Communications Co. v. Phoenix City Broadcasting of Atlanta, 205 Ga. App. 57, 60 (1) (421 SE2d 295) (1992). In Jefferson-Pilot, where the buyer, seller, and lenders were parties to a set of contracts, which provided for the financing, construction, and transfer of ownership of a radio station, this court noted that the buyer could not have tortiously interfered with the contractual relationship between the seller and its lenders because the buyer was not a stranger to the contract, but in fact, was a third-party beneficiary of the contract. Inasmuch as the appellee was not a stranger and would benefit from any contracts entered into between the appellants and residential purchasers, the appellee could not have tortiously interfered with any purchase contracts. Accordingly, this enumeration is also without merit.

6. In their final enumeration of error, the appellants contend that the trial court erred in granting the appellee’s motion for summary judgment as to the appellee’s counterclaim for payment on a loan unconditionally guaranteed by appellant McGriff. We disagree.

In his responses to the appellee’s discovery, appellant McGriff admits that payments have not been made timely pursuant to the loan agreement between Chrysler and Lake Tightsqueeze, Inc. and pursuant to the unconditional guarantee of payment. Although the appellants have asserted as a defense a right to set-off any financial obligation owed to the appellee based upon the appellee’s refusal to enter into additional financing agreements on behalf of the appellants, this court has recently denounced such action. In Bridges v. Reliance Trust Co., 205 Ga. App. 400, 401 (1) (422 SE2d 277) (1992), this court held that “ ‘[á] lender’s refusal to make a second loan, or even misrepresentations that it would make a second loan, does not bar the lender from recovery of the amount owed under the first loan.’ [Cit.]” Inasmuch as the appellants do not have a right of set-off against their obligation under the loan between appellant Lake Tight-squeeze, Inc. and the appellee, the trial court did not err in granting the appellee’s motion for summary judgment on its counterclaim.

Decided August 23, 1993

Reconsideration denied September 8, 1993

James A. Dunlap, Jr., for appellants.

Davis & Walker, Joseph G. Davis, Jr., Shawn D. Stafford, for appellee.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


text:
    A93A1072.
    McBEE v. THE STATE.
    (435 SE2d 469)
   McMurray, Presiding Judge.

Johnny Ladell McBee (defendant) and Bobby Gene Simpson, Jr., were jointly indicted for arson in the first degree. Simpson plead guilty and testified for the State at defendant’s jury trial. Defendant was found guilty of the crime charged. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court improperly limited his cross-examination of Bobby Gene Simpson, Jr., by ruling that he could not use the witness’ juvenile record to “show the jury that Simpson’s credibility was suspect because of his record of infractions, which began when he was a juvenile.” This contention is without merit as “such an adjudication could not be used to impeach the witness. Smith v. State, 154 Ga. App. 190, 192 (3) (267 SE2d 826) [, U. S. cert. denied in 449 U. S. 842 (101 SC 123, 66 LE2d 50)].” Johns v. State, 181 Ga. App. 510, 511 (3) (352 SE2d 826). See Overstreet v. State, 182 Ga. App. 809, 812 (5) (357 SE2d 103).

Decided August 20, 1993

Reconsideration denied September 8, 1993

Kenneth E. Futch, Jr., for appellant.

Donnie Dixon, District Attorney, Lucy J. Bell, Assistant District Attorney, for appellee.

2. Defendant contends the trial court erred in denying his motion for new trial, arguing that the State “failed to disclose a potential reward for one of the State’s witnesses [pursuant to his demand under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215)].”

“It is elementary that counsel for the State can make available only such evidence as it has in its file, or of which it has knowledge, and ‘is under no requirement to conduct an investigation on behalf of a defendant. . . .’ Dalton v. State, 251 Ga. 641 (1) (308 SE2d 835).” Fuqua v. State, 183 Ga. App. 414, 416 (1b), 417 (359 SE2d 165). In the case sub judice, it is undisputed that the State’s attorney did not know at the time of trial that any witness testifying for the State was subject to a reward. In fact, the State’s attorney stated that he did not know of any such reward until the hearing on defendant’s motion for new trial. These circumstances reveal no violation under Brady v. Maryland, 373 U. S. 83, supra. Consequently, the trial court did not err in denying defendant’s motion for new trial.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

       In Davis v. Alaska, 415 U. S. 308 (94 SC 1105, 39 LE2d 347), the Supreme Court held that a pending delinquency adjudication for burglary was admissible as a particular attack on a witness’ credibility, i.e., “directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.” Hines v. State, 249 Ga. 257, 259 (2), 260 (290 SE2d 911). However, as noted by Justice Stewart in a concurring opinion, “the [United States Supreme] Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions.” Davis, supra at 321.


text:
    A93A1452.
    FREEMAN v. THE STATE.
    (435 SE2d 461)
   McMurray, Presiding Judge.

Via indictment, defendant was accused of murder. The jury returned a verdict of guilty of “involuntary manslaughter.” The district attorney objected to the verdict, pointing out that the court only charged the jury on the law of murder or voluntary manslaughter. The judge refused to receive the verdict, pointing out that the jury was “not charged on involuntary [manslaughter] and there was no such crime as that committed. . . .” The jury returned to the jury room and continued deliberating. Nearly two hours later, the jury returned a verdict of voluntary manslaughter. The judge received that verdict and sentenced defendant to serve 20 years in the State Penal System. Defendant sought and was permitted to file an out-of-time motion for a new trial. The motion was denied and this appeal followed. Held:

Defendant asserts the trial court erred in receiving the verdict of voluntary manslaughter and refusing to receive the verdict of involuntary manslaughter. We agree.

“In Register v. State, 10 Ga. App. 623 (74 S. E. 429), headnote 4 reads: ‘On the trial of an indictment for murder the judge gave the jury instructions relating to the law on murder, voluntary manslaughter, and justifiable homicide in self-defense. He did not instruct them on the law of involuntary manslaughter. The jury, after deliberation, returned a verdict finding the accused guilty of “involuntary manslaughter,” and this verdict was read and published in open court as their verdict. There was no intimation by any member of the jury that the instructions of the judge on the law of the case had been misunderstood, no further instructions were asked, no member of the jury dissented from the verdict, and nothing occurred tending in any manner to show that the entire jury did not deliberately intend the verdict published in court as their unanimous finding. The judge refused to receive the verdict of involuntary manslaughter, telling the jury that the court could not receive the verdict which they had attempted to return, that the court had not charged them upon the law of involuntary manslaughter, and to return to their room for further deliberation. Held: (1) The verdict of involuntary manslaughter was in legal effect a verdict finding the accused guilty of the highest grade of involuntary manslaughter, and operated as an acquittal of the higher grades of homicide, that is, murder and voluntary manslaughter, as charged in the indictment. (2) The verdict of involuntary manslaughter was a finality, unless objected to in some form by the accused, and the judge could not legally refuse to receive the verdict, or to restrict in any manner the exclusive right of the jury to find and return the verdict, and the action of the judge in refusing to receive the verdict and in requiring the jury to return to their room for further deliberation was unauthorized by law.’ ” Matthews v. State, 71 Ga. App. 796, 798-799 (32 SE2d 446).

Reversed and remanded for proceedings not inconsistent with this opinion.-

Johnson and Blackburn, JJ., concur.

Decided August 19, 1993

Reconsideration denied September 8, 1993

Frank T. Bell, for appellant.

Charles M. Ferguson, District Attorney, for appellee.