author: Pope, Presiding Judge. Beasley, Chief Judge,

text:
    A95A1021.
    A95A1341.
    A95A1342.
    THE STATE v. GERBERT. THE STATE v. DAMRON. THE STATE v. KISER.
    (467 SE2d 177)
   Pope, Presiding Judge.

We consolidated these appeals to consider the trial court’s grant of defendants’ motions for discharge and acquittal pursuant to OCGA § 17-7-170.

1. The State first argues that the court should have denied the motions for discharge because the demands for speedy trial were filed before the formal accusations were filed. The State contends that the uniform traffic citations (UTC) against each defendant could not serve as accusations and that even if they could, they were not filed prior to the demands.

Case No. A95A1021

On June 7, 1994, a citation was issued charging Gerbert with the offense of “DUI Alcohol & Drugs” in violation of OCGA § 40-6-391 (a) (3). The citation was filed in the Rockdale County State Court on June 13, 1994 and ordered Gerbert to appear in state court on July 13, 1994.

On June 24, 1994, Gerbert filed a demand for trial in the state court pursuant to OCGA § 17-7-170. On July 13, 1994, the state court set bond, which Gerbert posted.

On September 27, 1994, the formal accusation against Gerbert was filed, charging him with driving under the influence of drugs, with failure to maintain his lane of travel and with two counts of driving with a prohibited substance. Gerbert entered a plea of not guilty and requested a jury trial on November 16, 1994.

The parties stipulated that the Rockdale County State Court has four three-month terms a year, beginning at the start of January, April, July, and October. They further stipulated that juries were impaneled and qualified to try Gerbert in both the July and October terms. On January 27, 1995, the state court granted Gerbert’s motion for discharge and acquittal, determining that because he was not tried on the citation or on the formal accusation during the July and October terms of court, he was acquitted of the charges.

“OCGA § 17-7-170 provides that when a person makes a demand for trial he is entitled to be discharged and acquitted of the offense charged if he is not tried during the term in which his demand for trial is made or at the next succeeding regular term, and there were juries impaneled and qualified to try him at each of those terms.” (Citation and punctuation omitted.) Scott v. State, 206 Ga. App. 17 (424 SE2d 325) (1992); see State v. Hicks, 183 Ga. App. 715, 716 (359 SE2d 712) (1987); State v. McKenzie, 184 Ga. App. 191, 192 (361 SE2d 54) (1987); see also Huff v. State, 201 Ga. App. 408 (411 SE2d 60) (1991).

The first issue to be resolved is whether Gerbert’s filing of his demand for a speedy trial started the clock for the two terms within which to try him. The citation against Gerbert was originally filed in state court and directed Gerbert to appear there. The State argues that the citations were filed in the traffic violations bureau (TVB) of the state court, which could not impanel juries and therefore, had no authority to try Gerbert. Accordingly, the State argues that Gerbert’s demand was untimely and the motion to discharge was improperly granted.

Included in the record is a document regarding the Rockdale County State Court which states that “pursuant to Section 40-13-50, et seq. of the Official Code of Georgia Annotated it is hereby Ordered that a Traffic Violations Bureau be established as a division of the State Court of Rockdale County for the handling and disposition of all traffic cases which are not excepted by law or by order.” OCGA § 40-13-53 (b) (1) provides that any offense for which a driver’s license may be suspended by the commissioner of public safety shall not be handled or disposed of by a traffic violations bureau. OCGA § 40-5-67 provides that upon conviction for a violation of OCGA § 40-6-391, a person’s driver’s license shall be forwarded to the Department of Public Safety. Thus, it appears that the TVB could not handle or dispose of the violations at issue in these cases.

In light of these provisions, jurisdiction of the charge against Gerbert for driving under the influence was properly in the state court, not in the traffic bureau division. In granting the motion for discharge, the court concluded that the citation was properly filed and that Gerbert’s demand was not premature on this basis. The court stated that it did not suggest that a speedy trial demand “filed upon a UTC within the jurisdiction of the [TVB] would be timely filed.” The court stated further: “[n]or does the court suggest that such a speedy trial demand filed on TVB case which is transferred to the Solicitor’s office by the Clerk would be timely until a formal accusation had been filed.” Given that Gerbert’s demand for speedy trial was filed in a court which could impanel juries to try him, we now must determine in this case and in Case Nos. A95A1341 and A95A1342 whether the motion to discharge was properly granted.

It is settled that a UTC may serve as an accusation. “As provided in OCGA § 40-13-1, a uniform traffic citation shall serve as the citation, summons, accusation, or other instrument of prosecution of the offense or offenses for which the accused is charged.” (Citation and punctuation omitted.) State v. Black, 213 Ga. App. 331 (444 SE2d 368) (1994); OCGA § 17-7-71 (b) (1). On the other hand, “[i]t is not true that a prosecution must proceed upon the uniform traffic citation form that has initially been issued or that the prosecuting attorney has no authority to file a subsequent [formal] accusation.” (Citations and punctuation omitted; emphasis supplied.) Ellerbee v. State, 215 Ga. App. 102, 104 (3) (449 SE2d 874) (1994).

In the instant matter, the citation charged Gerbert with driving under the influence, while the accusation charged him with the additional offenses of failing to maintain the lane of travel and of driving with a prohibited substance. Thus, the “accusation superseded [the] uniform traffic citation as the charging instrument.” (Emphasis supplied.) Ellerbee v. State, 215 Ga. App. at 104. Although the driving under the influence charge was contained in the UTC, we conclude that for purposes of speedy trial demands the offenses charged in the citation and those of the accusation will be viewed as a whole. In our effort to avoid piecemeal litigation, we will not separately parcel out each offense.

Because the citation against Gerbert did not serve as the accusation, the demand for trial was premature and the motion for discharge was improperly granted. See Groom v. State, 212 Ga. App. 133 (441 SE2d 259) (1994). “There is no provision in Georgia law whereby a prematurely filed speedy trial demand can be resuscitated by a later returned accusation (or indictment) whether they are filed in the same term or not.” State v. McKenzie, 184 Ga. App. at 192; State v. Frazier, 201 Ga. App. 6 (1) (410 SE2d 134) (1991). Accordingly, the grant of Gerbert’s motion to discharge on this basis is reversed.

Case No. A95A1341

Citations issued on April 20, 1994, charging Damron with driving under the influence of alcohol, an open container violation, and reckless driving. Damron was ordered to appear in state court. The parties stipulated that the citations were delivered to the court clerk by the sheriff’s department with a list of the other UTCs on April 22, 1994. The stipulation further provided that the clerk entered information regarding the UTCs into a computer on April 25, 1994.

On May 16, 1994, Damron filed his trial demand under OCGA § 17-7-170. On July 28, 1994, an accusation was filed, charging Damron with driving under the influence of alcohol, an open container violation, and reckless driving.

The parties stipulated that the Rockdale County State Court had four three-month terms a year and that juries were impaneled and qualified to try Damron in the April, July, and October terms. On February 20, 1995, the court granted Damron’s motion to discharge and acquit.

“In this case, the uniform traffic citations served as the accusations. [Cits.] Although formal accusations were later filed in this case, they were superfluous. [Cits.]” Smith v. State, 207 Ga. App. 762 (429 SE2d 149) (1993); compare State v. Lipsky, 191 Ga. App. 842 (383 SE2d 204) (1989). The citation was filed with the state court prior to the filing of the demand for speedy trial and the motion for discharge and acquittal was properly granted.

Case No. A95A1342

On May 20, 1994, a citation issued against Kiser charging him with “DUI Alcohol & Drugs in violation of Code Section 40-6-391 (a) (3).” He was ordered to appear in state court. The parties stipulated that the citations were delivered to the court clerk by the sheriff’s department with a list of other UTCs on June 3, 1994, and were entered into the court computer on June 6, 1994.

On June 9, 1994, Kiser filed a demand for trial pursuant to OCGA § 17-7-170. On December 9, 1994, an accusation against Kiser was filed which charged him with four counts of driving under the influence of alcohol and drugs; the counts corresponded to the four subsections of OCGA § 40-6-391 (a).

Again, the parties stipulated that the Rockdale County State Court had four three-month terms a year and that juries were impaneled and qualified to try Kiser in the April, July, and October terms. On February 20, 1995, the court granted Kiser’s motion to discharge and acquit.

Although the accusation contained charges under OCGA § 40-6-391 (a) in addition to the charge contained in the UTC, this fact is not dispositive. As stipulated by the parties, the charges against Kiser were filed in June, which is during the April term of court. Kiser filed his demand for speedy trial in June, which is also part of the April term. The State did not file the accusation against Kiser until December, which is part of the October term.

“OCGA § 17-7-170 provides that when a person makes a demand for trial he is entitled to be discharged and acquitted of the offense charged if he is not tried during the term in which his demand for trial is made or at the next succeeding regular term, and there were juries impaneled and qualified to try him at each of those terms.” (Citation and punctuation omitted.) Scott v. State, 206 Ga. App. at 17. In this case, it was necessary that Kiser be tried in either the April or July term. Because Kiser was not tried during either of these terms, the court properly granted his motion for discharge and acquittal. This result was not altered by the filing of the accusation in December, after the two terms had expired.

These cases illustrate the procedural quagmire that may result in cases of this type. In an effort to ameliorate this situation, and to provide a fair procedure for both the State and the accused, in future cases in which a speedy trial demand is filed on a UTC, the State will be required to elect, within the first term during which the case could be tried, whether to proceed on the UTC or whether, instead, to file an accusation which will then supplant the UTC as the charging instrument. This requirement does not conflict with OCGA § 17-7-71 (f), since that subsection deals with the amendment of accusations which have already been filed and does not apply to UTCs. See State v. Rustin, 208 Ga. App. 431, 434 (2) (430 SE2d 765) (1993); see also Ellerbee v. State, 215 Ga. App. at 104. This requirement will be effective to all cases in which the UTC is filed after this opinion appears in the advance sheets.

2. Because the first enumeration of error does not end our inquiry as to Case Nos. A95A1341 and A95A1342, we address the State’s additional arguments. Contrary to the State’s second enumeration, service of the demands for trial was properly made on the solicitor and district attorney, rather than the officer who issued the citations. See OCGA § 17-1-1 (b).

3. The State next points to difficulties in trying the case on the UTC instead of on a formal accusation. At the outset, we note that our holding in Division 1 renders this issue moot. Moreover, “it is not true that a prosecution must proceed upon the [UTC] form that has initially been issued and that the prosecuting attorney has no authority to file a subsequent formal accusation. The State is not prohibited from issuing a subsequent accusation.” (Citation and punctuation omitted.) State v. Doyal, 184 Ga. App. 126, 127 (361 SE2d 17) (1987).

4. The State argues that since the defendants’ original demands for trial referenced the citation numbers, and the motions to discharge referenced the case numbers, the motions should have been dismissed. However, the charges at issue are identifiable in the demands and motions, and this argument is specious.

5. We have examined the State’s fifth enumeration of error, that the OCGA § 17-7-170 demands were insufficient on their face, and find it without merit. See Verscharen v. State, 188 Ga. App. 746, 747 (374 SE2d 349) (1988).

6. Finally, the State argues that there is no conflict between OCGA § 40-13-3 and Section 8 of the local statute creating the State Court of Rockdale County. Section 8 of that local statute states that “[a]ll prosecutions in criminal cases instituted in the State Court of Rockdale County shall be by written accusation made by the solicitor. . . .” As discussed in Division 1 above, OCGA § 40-13-1 et seq. allow the citation to serve as the accusation. Accordingly, the state court properly determined that the provisions were in conflict and that OCGA § 40-13-1 et seq. controlled. See Ga. Const. 1983, Art. III, Sec. VI, Par. IV (a); OCGA § 15-7-3; see generally Majia v. State, 174 Ga. App. 432, 433 (2) (330 SE2d 171), aff’d 254 Ga. 660 (333 SE2d 834) (1985).

Judgment reversed in Case No. A95A1021.

McMurray, P. J.,

Birdsong, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur. Beasley, C. J., concurs in part and dissents in part.

Judgments affirmed in Case Nos. A95A1341 and A95A1342.

McMurray, P. J., Birdsong, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring in part and dissenting in part.

I respectfully dissent with respect to the affirmance of Gerbert’s conviction and specially concur with respect to affirmance of the discharges and acquittals granted to Damron and Kiser. I concur fully in Divisions 2 through 6 of the majority opinion but not in Division 1.

Judicially compelled cessation of prosecution of a criminal offense is an “extreme sanction” for the State’s tardiness in proceeding. Ferris v. State, 172 Ga. App. 729, 731 (1) (324 SE2d 762) (1984). It is what the law requires when the defendant has properly filed a demand for speedy trial. OCGA § 17-7-170 (b). It is not discretionary; the statute commands “shall.” Due to its severity, the one who calls for it must file with the court a clear “demand to be tried within the next succeeding term of court,” Ferris, supra at 730, and must alert the prosecutor by service of a copy of the demand, as the statute requires.

The sanction is a fatal one because it guards a valuable right, the right to have charges brought against one disposed of not only while witnesses are available and their memories are fresh but also so that the deleterious effects of a pending charge on a defendant are lessened. As stated in Hubbard v. State, 254 Ga. 694, 695 (333 SE2d 827) (1985), “In the absence of a right to a speedy trial the accused might suffer uncertainty, emotional stress, and the economic strain of a pending prosecution indefinitely.”

The process of criminal proceedings is not meant to be the punishment. The right is regarded as so fundamental that it is protected not only by statute, OCGA § 17-7-170 (a), but also by both the State constitution, Ga. Const., Art. I, Sec. I, Par. XI (a), and the federal constitution, Amendment Six. As stated in these three documents respectively, the right belongs to “[a]ny person against whom a true bill of indictment or an accusation is filed,” “the defendant,” “the accused.”

When may a person who is charged with a misdemeanor by a uniform traffic citation and complaint exercise that right? A person can be tried on a UTC for certain misdemeanors, including the ones charged originally against the defendants in the instant cases. OCGA § 17-7-71 (b). The citation and complaint has significant attributes similar to those of an accusation or indictment. It serves “as the citation, summons, accusation, or other instrument of prosecution of the offense or offenses for which the accused is charged, and as the record of the disposition of the matter by the court before which the accused is brought. . . .” OCGA § 40-13-1. It “contains an accusation.” Duncan v. State, 193 Ga. App. 793, 794 (389 SE2d 365) (1989). It serves as authority for the requirement of bond in lieu of loss of liberty. OCGA § 40-13-55. It authorizes a command to appear in court on a date certain, to answer the charge. OCGA § 40-13-58. It “alone suffice[s] to prosecute the traffic violation.” Weaver v. State, 179 Ga. App. 641 (1) (347 SE2d 295) (1986); OCGA § 40-13-3.

Decided December 20, 1995

Michael M. Hawkins, Solicitor, for appellant.

Albert A. Myers III, for appellee (case no. A95A1021).

Of particular significance is that the issuance and filing of a UTC “commences” the prosecution of the charge contained therein, for statute of limitation purposes. Poppell v. State, 209 Ga. App. 91, 92 (432 SE2d 573) (1993); Duncan, supra; Weaver, supra. OCGA § 17-3-1 (d) provides that “Prosecution for misdemeanors must be commenced within two years after the commission of the crime.” The decision to prefer an accusation and add a charge is not subject to a statute of limitation defense on the original charges if the period expires between the date the UTC is filed and the date the accusation is filed. Duncan, supra. The defendant’s right to rely on the earlier date for trial demand purposes must be commensurate with the State’s right to rely on that date for statute of limitation purposes. Since defendants are just as much at risk on a UTC as they are on an accusation or indictment for the offense charged, the right to demand a speedy trial must attach at the time the UTC is filed with the court. State v. Lipsky, 191 Ga. App. 842 (383 SE2d 204) (1989).

Whether to proceed on the UTC, or on a prosecutor’s accusation, or on a grand jury indictment, is the choice of the prosecutor. The State’s advocate should not have control of when the defendant’s right to a speedy trial on the charge contained in the UTC arises. That is the result of the majority’s holding, which is contrary to the statutory commands. The service of a copy of the demand on the prosecutor is “sufficient to put the authorities on notice of [the] defendant’s intention to invoke the extreme sanction” of OCGA § 17-7-170. Ferris, supra at 731 (1). Whether the prosecutor decides to add more charges based on the evidence is solely within his or her discretion, but this cannot frustrate the invocation of the defendant’s right.

For these reasons, the trial court should be affirmed in all three cases.

Terry N. Massey, for appellees (case nos. A95A1341, A95A1342).

       The traffic bureau division of the Rockdale County State Court does not hold jury trials. In its order, the court appears to be concerned with the effect of a speedy trial demand made on an offense originally filed in the traffic bureau. Because in Rockdale County the TVB operates only as a division of the state court, the emphasis on this distinction appears irrelevant.

       Although the court granted Gerbert’s motion to suppress the results of the State-administered blood test, this ruling is not at issue here.


source: Caselaw Access Project

author: Beasley, Chief Judge.

license: Public Domain

text:
    A95A1840.
    MALONE v. THE STATE.
    (466 SE2d 645)
   Beasley, Chief Judge.

Malone appeals from his conviction and sentence for selling cocaine. OCGA § 16-13-30 (b).

Williams, the officer who made the undercover drug buy, testified his superior had informed him that a black male was selling drugs at a certain corner. He drove to the vicinity of the corner, parked his vehicle and approached Malone on foot. Malone, who was seated on the steps or bannister of a house on the corner, sold Williams a piece of crack cocaine for $20. During the transaction, Williams was observed by other officers. They did not arrest Malone that night so as to be able to make other undercover buys in the same manner.

After the purchase, the officers wished to obtain a photograph of Malone to aid identification. Another officer went to the corner and as a ruse told the four men there, including Malone, that a robbery had occurred nearby, they fit the description of the robbers, and if they would allow their pictures to be taken he would do a photograph lineup with the victim. The four agreed to have their photographs taken. Malone gave his name as Ernest Robinson. He was arrested about eight weeks after the undercover cocaine purchase.

1. Malone contends the evidence was insufficient to support the verdict under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), specifically asserting the State did not show the crack cocaine produced at trial was purchased from him. The indictment stated the offense took place “on or about June 4, 1993.” Williams initially testified the buy occurred on June 4, but after examining the date on the plastic evidence bag containing the cocaine, he said it was June 3. After further questioning, Williams stated he was mistaken about the date. Although Williams’ testimony shows some confusion about the exact date of the cocaine purchase, it does not show any confusion about whether the cocaine produced at trial was that purchased from Malone. Another officer testified the offense occurred on June 3.

Conflicts in the details of testimony concerning the chain of custody go to the weight, credit, and effect of the evidence, not its admissibility. Thomas v. State, 208 Ga. App. 476 (1) (430 SE2d 849) (1993); Williams v. State, 213 Ga. App. 70, 71 (2) (443 SE2d 696) (1994). There was sufficient evidence to allow a rational trier of fact to find Malone guilty beyond a reasonable doubt. Jackson, supra; Gunter v. State, 215 Ga. App. 517, 519 (3) (451 SE2d 108) (1994).

2. Malone contends the court made an improper comment, in violation of OCGA § 17-8-57, in its pre-evidentiary statement to the jury by referring to Malone as “also known as Ernest Robinson.” He also contends that, by telling the jury to “[w]ait until you hear both sides of this case before you begin to form an opinion about it,” the court imposed on him a burden to present evidence and improperly shifted the burden of proof to him.

These assertions of error have not been preserved for appellate review. Malone did not object when the court made either statement, nor when the court’s pre-evidentiary statement was completed. He never asked for a mistrial or a curative instruction. After the court gave its closing jury charge, he reserved objections to “the charge,” but made no attempt to incorporate the court’s pre-evidentiary statement into his reservation. It is clear the court’s question asking for objections to “the charge” referred only to the main closing jury charge. “[A] pre-evidentiary statement is not the equivalent of a jury charge.” Farmer v. State, 180 Ga. App. 720, 721 (1) (350 SE2d 583) (1986). See also Hawkins v. State, 185 Ga. App. 837 (1) (366 SE2d 222) (1988); Levesque v. State, 172 Ga. App. 760, 761 (324 SE2d 580) (1984).

Reservation of objections to the main charge does not encompass objections to the pre-evidentiary statement. While OCGA § 5-5-24 (a) relieves a criminal defendant of the responsibility of objecting to jury charges at the time of trial and allows reservation of objections for a motion for new trial or appeal, it only concerns the charge given the jury at the end of the case. Foshee v. State, 256 Ga. 555, 557 (2) (350 SE2d 416) (1986). A defendant still must make timely objection throughout the course of the trial. Id. Additionally, if a court does err in its pre-evidentiary remarks, that error is cured by thoroughly and correctly covering the law in the main charge. Farmer, supra; Hawkins, supra; Levesque, supra. To give the court the opportunity to correct any error at that time, or earlier, and to preserve review of any alleged error, Malone would have to object after the court concluded its pre-evidentiary remarks and before the main charge, which he did not do.

Even if these enumerations were preserved for appellate review, there would be no reversible error. First, the Robinson alias was set forth in the indictment and there is no error in sending the indictment out with the jury, Byrd v. State, 186 Ga. App. 446, 451 (5) (367 SE2d 300) (1988), nor would there be any obligation to redact his alias from the indictment, Jenkins v. State, 216 Ga. App. 433, 434 (4) (454 SE2d 543) (1995). An officer testified Malone had given him that name, and he had relayed the name to others. Williams testified the original arrest warrant was written for Ernest Robinson. If there was any violation of OCGA § 17-8-57 in referring to Malone’s alias, it was harmless.

Decided December 20, 1995.

Jackson & Schiavone, Mark E. Smith, for appellant.

Spencer Lawton, Jr., District Attorney, Melanie Higgins, Assistant District Attorney, for appellee.

Second, even if a portion of the pre-evidentiary statement had suggested an impermissible shifting of the burden of proof, “where the principles of law were thoroughly covered in the main charge, the initial statement would not have misled the jury and would be harmless error. [Cit.]” Farmer, supra. In the main charge, the court properly charged the jury on the burden of proof and that it never shifted to defendant. Additionally, the court properly informed the jury about the burden of proof in other portions of the pre-evidentiary statement. Any error in this regard would also have been harmless.

3. Finally, Malone contends the State improperly placed his character in evidence by introducing a certified copy of his prior conviction for possession of cocaine. On cross-examination, Malone testified that he told the officer his name was Ernest Robinson because he was on probation. The State asked what he was on probation for and he responded: “A possession charge in ’89.” Following this the State introduced the certified copy of the conviction. Even if Malone had not placed his character in evidence to the extent of his prior conviction, any error in allowing the introduction of the certified copy of the conviction was harmless. After his testimony, additional evidence that he had been convicted of possession was merely cumulative of the other evidence already before the jury. Deal v. State, 199 Ga. App. 184, 187-188 (4) (404 SE2d 343) (1991).

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: Blackburn, Judge.

text:
    A95A2128.
    PROFESSIONAL PRACTICES COMMISSION et al. v. BREWER.
    (466 SE2d 651)
   Blackburn, Judge.

Appellants Professional Practices Commission (PPC), Hans J. Schacht and Chris Good were sued for their role in investigating a grade changing incident that permitted an otherwise ineligible student to play high school football. They appeal the trial court’s denial of their motion for summary judgment. The PPC is a state agency authorized to investigate certified school personnel accused of certain crimes or unethical conduct. OCGA § 20-2-790 et seq. At all times relevant to this action Schacht was the PPC’s executive director and Good was its associate director.

Brewer was a teacher and football coach at Cedar Shoals High School. In November 1989 the appellants investigated Brewer’s alleged role in changing a student’s grades that enabled the student to play football. The facts concerning the investigation are outlined in Brewer v. Purvis, 816 FSupp. 1560 (M. D. Ga. 1993).

Subsequent to the investigation, Brewer sued the three appellants as well as the Clarke County School District, its superintendent, the Georgia High School Association and its executive director claiming under 42 USC § 1983 that the defendants violated his constitutional rights. The case was initially removed to the U. S. District Court for the Middle District of Georgia where Brewer amended his complaint to include a claim for libel. On March 10, 1993, the district court issued an order, based on the Eleventh Amendment’s bar against suing a state in federal court, remanding certain claims to the Clarke County Superior Court. Brewer, supra at 1568-1571. Specifically, the district court remanded Brewer’s claims against the PPC as well as Brewer’s claims against Schacht and Good as state officials acting in their official capacity. Id.

Contained within the same order as the remand, the district court also granted summary judgment to the Clarke County School District on Brewer’s libel claims that concerned the school district’s handling of a PPC investigative report. Summary judgment was entered as Brewer offered no response to the school district’s motion. Id. at 1579.

Concerning the remanded claims in the Clarke County Superior Court, the appellants filed a motion for summary judgment asserting that they were not proper defendants in a § 1983 claim which concerns the deprivation of federal constitutional rights. Brewer then amended his complaint to assert that the appellants violated his right to due process as contained within the Georgia Constitution. The amendment also added a variety of state tort claims.

The trial court denied summary judgment stating: “[Q]uestions of fact remain as to the issues of libel, slander, breach of public duty and whether the defendants deprived the plaintiff of his state constitutional liberty interest in his reputation and his right to work in his chosen profession.” (Emphasis supplied.)

1. On appeal, appellants argue that Brewer’s claims against them under § 1983 are without merit. Will v. Michigan Dept. of State Police, 491 U. S. 58 (109 SC 2304, 105 LE2d 45) (1989) holds that § 1983 claims cannot be asserted against a state agency or state officials acting in their official capacity. Section 1983 is not applicable to the remanded claims as they only concern a state agency and state officials acting in their official capacity. Will, supra. Section 1983 addresses claims arising from a deprivation of federal constitutional rights. In its order denying summary judgment, the trial court specifically determined that a question of fact existed as to the violation of Brewer’s “state” constitutional rights. Summary judgment was improperly denied PPC, Schacht and Good as to any claim asserted against them arising under § 1983.

Decided December 21, 1995.

Michael J. Bowers, Attorney General, Dennis R. Dunn, Senior Assistant Attorney General, Rebecca S. Mick, Assistant Attorney General, for appellants.

Deedra M. Brewer, J. Hue Henry, for appellee.

2. Appellants also assert that the trial court erred in denying their motion for summary judgment as to Brewer’s various tort claims. On appeal, appellants argue for the first time that these claims were barred under the doctrine of res judicata by virtue of the district court’s prior opinion. However, appellants’ failure to raise this issue in the trial court precludes our consideration of it on appeal. Hanie v. Barnett, 213 Ga. App. 158, 160 (444 SE2d 336) (1994). As we are presented with nothing to review under this enumeration of error, the trial court’s denial of the motion for summary judgment on the state tort claims is affirmed.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Andrews, J., concur.

       On appeal, appellants offered no explanation or argument as to why the doctrine of res judicata would apply. As clearly enunciated in OCGA § 9-12-40, a judgment is considered conclusive for purposes of res judicata when it concerns the same parties. The district court order that the appellants deem to be conclusive concerns the Clarke County School District, a defendant not involved in the remanded claims.


text:
    A95A2222.
    A95A2579.
    DURDEN v. THE STATE. LAWSON v. THE STATE.
    (466 SE2d 641)
   Beasley, Chief Judge.

In a single indictment, Durden and Lawson were charged with aggravated assault upon Bledsoe, OCGA § 16-5-21 (a) (2), aggravated assault upon Payton, OCGA § 16-5-21 (a) (2), armed robbery of Pay-ton, OCGA § 16-8-41 (a), and criminal damage to property in the second degree, OCGA § 16-7-23 (a) (1). In the same indictment, Durden was also charged with aggravated assault on his wife, OCGA § 16-5-21 (a) (2), and Howard was charged with aggravated assault on Payton.

Lawson and Durden were tried jointly, without Howard. Evidence showed that officers first responded to a call at Howard’s home after midnight to find that Bledsoe had been beaten. The officers also noticed a Chevrolet El Camino in the front yard that had apparently been wrecked, but it did not appear to have any connection with Bledsoe. Although Bledsoe was uncooperative, he was eventually taken away in an ambulance and the officers remained at the scene for a few minutes investigating. About an hour later, another call came from Howard’s home and the same officers responded. This time they found Payton lying on a sofa, severely beaten and naked but for a blanket wrapped around him.

Testimony showed that despite the time the calls were made to police, both Bledsoe and Payton had been beaten before police arrived the first time. Before either incident, several people were in the house, and many had been drinking alcohol. Bledsoe made a remark to which Durden took umbrage, and Durden and Lawson proceeded to throw him against a wall and beat him about the face with their fists. After the Bledsoe beating, Durden stated he wished to kill Pay-ton because he had allegedly raped Durden’s wife. Howard said not to do that in her house but in the yard. Payton, a sometime resident of Howard’s home, was not then present but telephoned sometime thereafter. Howard told him to come and bring his rent money.

When Payton arrived in his El Camino, Durden spoke with him and Howard called for him to come into the backyard, which he did with forceful accompaniment by Durden. There, Durden and Lawson beat him with their fists, smashed his head into a wall and, after he fell to the ground, kicked him in the head. Durden stripped Payton of all his clothes and gave Howard, at her insistence, the two dollars he found in Payton’s pockets. After Durden rolled Payton into the bushes, he and Lawson went inside for a time and then out to Pay-ton’s El Camino. Durden broke its windows, slashed its tires, and otherwise damaged the vehicle to an extent it would cost over $500 to repair. Then they left. It was apparently after this that Durden, at a different location, struck his wife on the head with a beer bottle and slapped her.

Only after Durden and Lawson had left did anyone call for assistance for Bledsoe. While the officers were at the scene on that call, no one told them about Payton’s beating and they did not discover him in the backyard bushes. Sometime after the officers left, Payton called for help from the bushes and medical and police assistance was again called. Payton was hospitalized for more than two weeks, had no memory of the events, and could not identify his attackers; Bledsoe also testified that he had no memory of his attack.

The jury returned guilty verdicts against Durden on all three aggravated assaults, criminal damage to property in the second degree, and robbery by force as a lesser included offense of armed robbery. See OCGA § 16-8-40 (a) (1). The jury found Lawson guilty of both aggravated assaults with which he was charged, and guilty of robbery by force, but not guilty of criminal damage to property in the second degree. Durden and Lawson appeal.

Case No. A95A2579

1. Investigating officers testified that Howard, during their first visit, told them Bledsoe had been beaten by Durden and “a friend.” During the second visit, she told them Payton had been beaten by “the same guys,” naming both Durden and Lawson. She was inconsistent and sometimes evasive while giving these reports and did not testify at trial. Lawson contends allowing the State to introduce testimony about her statements to police was a violation of his rights under the confrontation clause of the Sixth Amendment to the United States Constitution.

We need not decide if there was such a violation because any error in allowing the officers to testify as to Howard’s statements was clearly harmless. See McDonald v. State, 210 Ga. App. 689, 691 (2) (436 SE2d 811) (1993). Two eyewitnesses to the beatings described, in much greater detail than Howard gave the police, the assaults on Bledsoe and Payton. See Jones v. State, 265 Ga. 84, 86 (4) (453 SE2d 716) (1995). We do not hesitate to conclude that the officers’ testimony about Howard’s statements at the scene during their investigation had little if any effect on the jury’s verdict. Id.

2. Lawson moved the court to sever trial of Count 5, Durden’s assault on his wife, from the rest of the charges in the indictment. Count 5 affected only Durden, but Lawson did not move to sever his trial from Durden’s. Compare Hayes v. State, 182 Ga. App. 26, 27 (1) (354 SE2d 655) (1987). Lawson cites no authority for the proposition that he can move to sever one count addressed solely to his co-defendant while never moving to have the co-defendant’s trial severed from his own, see OCGA §§ 16-1-7, 17-8-4, and we find none. To allow such a motion would permit one co-defendant to attempt to control the rights and trial strategy of another. Lawson’s rights in regard to Count 5 were limited to a motion to sever his trial from Durden’s under OCGA § 17-8-4. Lawson made no such motion and there was no error.

3. Lawson also contends the evidence was not sufficient to convict him of aggravated assault but only, at most, simple assault. OCGA § 16-5-20 (a). Although he contends there was little testimony about his participation in the attacks, eyewitness testimony was clear that Lawson participated in beating both Payton and Bledsoe. He also argues there was no evidence any offensive weapon was used in the attacks. Aggravated assault encompasses the use of “any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). “While ‘fists per se are not a deadly weapon within the meaning of [OCGA § 16-5-21] (cit.), [nevertheless, they may be found to be a deadly weapon by the jury depending on the manner and means of their use, the wounds inflicted, etc. (Cits.)’ [Cit.]” Harper v. State, 152 Ga. App. 689, 691 (2) (263 SE2d 547) (1979). The injuries actually inflicted on Payton unquestionably authorized the jury to find them serious; the bones around his eye and cheek were fractured, there was bleeding in his brain, and he was hospitalized for over two weeks. The evidence also showed bodily injuries to Bledsoe which the jury could have considered to be serious; he had cuts above and below his eye that left scars. Additionally, the results of the attack on Payton would have justified the jury’s concluding that the defendant’s fists, used offensively, were likely to cause serious bodily injury to Bledsoe, even if his actual injuries were not considered serious. There was sufficient evidence to convict Lawson of aggravated assault.

Case No. A95A2222

4. Durden contends the court erred in not severing Count 5, which charged him with aggravated assault on his wife, from the other four counts. His motion in the trial court asked that Count 1 (aggravated assault on Bledsoe) be severed from the other assault counts because it was not connected with them and had no common elements of substantial importance with them. Durden did not ask the court to sever Count 5. As discussed in Division 2, Lawson moved the court to sever Count 5, but the record does not show Durden ever joined in Lawson’s motion. As Durden did not seek severance of Count 5 below, he cannot do so on appeal. McBride v. State, 213 Ga. App. 857, 858 (3) (c) (446 SE2d 193) (1994).

5. Durden contends the court erred in allowing co-defendant Lawson’s statement to police to be read into the record because Lawson did not testify and was not subject to cross-examination about the statement, violating Durden’s rights under the confrontation clause of the Sixth Amendment to the United States Constitution. See Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). Although the statement was redacted to eliminate any reference to Durden, he argues other evidence showed Durden and Lawson were together before, during, and after the incidents addressed in Lawson’s statement, and it was then clear to the jury that Durden was the man referred to in Lawson’s statement. “The implication of another defendant must be direct. It is not a Bruton violation if the redacted confession identifies the defendant only through the jury’s making connections with other evidence and drawing inferenees. [Cit.] ‘ “(T)he statements standing alone must clearly inculpate the defendant. (Cits.)” . . . (Cit.)’ [Cit.]” (Emphasis supplied.) Walker v. State, 213 Ga. App. 407, 413 (7) (444 SE2d 824) (1994). As the only inference identifying Durden with Lawson’s redacted statement was through other evidence, there was no error.

Decided December 20, 1995.

James M. Cranford, for appellant (case no. A95A2222).

Sinnreich & Francisco, John R. Francisco, for appellant (case no. A95A2579).

Charles H. Weston, District Attorney, Thomas J. Matthews, Kimberly S. Shumate, Assistant District Attorneys, for appellee.

6. Durden contends the court erred in allowing Howard’s trial to be severed without a written motion being filed, but he cites no authority for the proposition that this would be an abuse of the court’s discretion, see OCGA § 17-8-4, and the argument is deemed waived pursuant to Court of Appeals Rule 27 (c) (2). Like Lawson, Durden also contends it was a violation of his confrontation rights to allow testimony concerning Howard’s statements to the police. As in Division 1, if there was error, it was harmless.

7. Durden contends the evidence was insufficient to support the conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The eyewitnesses were not interviewed at the scene until the second police visit. According to the officers’ testimony, they seemed scared and stated they had seen nothing but had heard some of the commotion. At trial, one eyewitness agreed with the officers’ account and gave an explanation for her original statement to the officers, while the other testified he had given the investigating officers the same account he gave at trial. This testimony simply presented an issue for the jury’s resolution. Cantrell v. State, 210 Ga. App. 218, 219-220 (1) (435 SE2d 737) (1993). There was evidence sufficient to support the conviction. Jackson, supra; Jacobs v. State, 207 Ga. App. 714, 716 (3) (429 SE2d 256) (1993).

Judgments affirmed.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A2730.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY et al. v. LANE.
    (466 SE2d 272)
   Blackburn, Judge.

We granted Georgia Farm Bureau Mutual Insurance Company’s and Georgia Farm Bureau Casualty Insurance Company’s (collectively Georgia Farm) application for discretionary review of the trial court’s order denying their motion for summary judgment in the underlying declaratory judgment action. By such suit Georgia Farm sought a determination of coverage of their insured, Schubert Lane, after he allegedly shot and injured James Prince in self-defense. Relying on our decision in Ga. Farm Bureau Mut. Ins. Co. v. Hurley, 190 Ga. App. 546 (379 SE2d 420) (1989), the trial court determined that issues of material fact precluded summary judgment for Georgia Farm because Lane deposed that he “shot in self-defense, that he did not aim to kill, and that he did not intend to injure intervenor Prince.” Georgia Farm enumerates only that the trial court erred by denying their motion for summary judgment.

In Hurley, supra, the insured kicked Hurley, a college fraternity brother, in the groin. The insured maintained that he kicked Hurley in order to push him away, but denied that he had intended to hit him in the groin. We concluded that an issue of material fact remained as to whether the insured’s conduct fell within the ambit of the intentional injury exclusion “because the type and degree of force employed by the insured . . . could reasonably be viewed as consistent with the absence of any intention on his part to cause the injury [cit.], and because the insured . . . testified unequivocally that he was acting in self-defense but that he did not in fact intend to injure Hurley.” Id. at 548. We have concluded the contrary, however, where, as here, the insured knowingly and intentionally shot another in self-defense. See Stein v. Massachusetts Bay Ins. Co., 172 Ga. App. 811, 812 (324 SE2d 510) (1984).

Upon giving his deposition, Lane admitted that he aimed his gun at Prince’s right side. Although Lane deposed he pulled the trigger only to get Prince to stop shooting, Lane further admitted that his intent was to shoot at Prince. Lane also acknowledged that his gun was capable of inflicting serious bodily harm. Because the evidence thus shows that Lane intended to cause injury to Prince, the fact that he may have acted in self-defense is insufficient to vitiate the element of intent so as to remove such act from the ambit of the exclusionary clause. See Ga. Farm Bureau Mut. Ins. Co. v. Machett, 207 Ga. App. 588, 589-590 (428 SE2d 636) (1993).

“When a motion for summary judgment is submitted and supported by evidence, the adverse party may not rest his case as made, but must set forth specific facts and present his case in full in order to show there is a genuine issue for trial. The burden of proof is shifted when the moving party makes a prima facia showing that it is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against him. If . . . the defendant fails to respond with specific facts showing a genuine issue for trial, summary judgment is properly granted.” (Citations and punctuation omitted.) Elec. Distrib. v. Turner Constr. Co., 196 Ga. App. 359, 364-365 (395 SE2d 879) (1990). There being no showing of a genuine issue for trial, the trial court erred in failing to grant the motion for summary judgment.

Decided December 21, 1995.

Brown & Livingston, Becky D. Livingston, Jeff Akins, for appellants.

Allen & Classens, Francis W. Allen, Michael J. Classens, H. Lehman Franklin, Jr., for appellee.

Judgment reversed.

Andrews, J., concurs. McMurray, P. J., concurs in the judgment only.


author: Andrews, Judge.

text:
    A95A2004.
    DEPARTMENT OF TRANSPORTATION v. MARKS et al.
    (466 SE2d 273)
   Andrews, Judge.

The plaintiffs, Marks et al., filed suit in Chattooga County against the Department of Transportation (DOT) and served the DOT by placing a copy of the summons and complaint in a package addressed to the DOT Commissioner at his office in the DOT building in Atlanta and having the package delivered to that address by United Parcel Service (UPS), a private delivery service. UPS delivered the package to the mail room manager at the DOT building, who delivered it on the same day to the Commissioner’s office. The trial court concluded service was sufficient under the provisions of OCGA § 32-2-5 (b) and found the DOT in default for failure to file a timely answer. The DOT appeals claiming service was insufficient.

OCGA § 32-2-5 (b) provides that: “Service upon the [DOT] shall be sufficient by serving a second original process issued from the county where the action is filed upon the commissioner personally or by leaving a copy of the same in the office of the commissioner in the [DOT] Building, Atlanta, Georgia.” The plaintiffs contended, and the trial court agreed, that the portion of the statute providing for service of process “by leaving a copy of the same in the office of the commissioner . . .” authorized the form of service employed by the plaintiffs in this case. We disagree.

In addition to the service provisions of OCGA § 9-11-4, the DOT may also be served pursuant to the provisions of OCGA § 32-2-5 (b). Service of process under OCGA § 32-2-5 (b) may be accomplished by personally serving a second original process issued from the county where the action is filed on the commissioner of the DOT or by “leaving a copy of the same in the office of the commissioner . . .” in the DOT building in Atlanta. Nothing in the language of OCGA § 32-2-5 (b) evinces a clear intention by the legislature to authorize a form of service in substitution for the personal service required at common law and by the applicable provisions of OCGA § 9-11-4. See Lexington Developers v. O’Neal Constr. Co., 142 Ga. App. 434, 437-438 (236 SE2d 98) (1977), rev’d on other grounds, 240 Ga. 376 (240 SE2d 856) (1977). We conclude the language in the statute authorizing service by “leaving a copy [of process] in the office of the commissioner” contemplates that service may also be accomplished by personally serving a person other than the commissioner in the commissioner’s office in the DOT building in Atlanta, who is authorized or otherwise qualified to receive service on behalf of the DOT. Such personal service must be made by an authorized person. See OCGA §§ 9-10-72; 9-11-4 (c) . Employing UPS to deliver a package containing the summons and complaint failed to accomplish the required personal service. Gormong v. Cleveland Elec. Co. &c., 180 Ga. App. 481, 482 (349 SE2d 500) (1986).

Decided December 27, 1995.

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, Jeffrey Davis, Assistant Attorney General, for appellant.

Farrar & Farrar, Archibald A. Farrar, Jr., Christopher L. Corbin, Shaw, Maddox, Graham, Monk & Boling, Julius W. Peek, Jr., for appellees.

“In the absence of service in conformity with [the statutory] rules, or the waiver thereof, no jurisdiction over the defendant is obtained by the court, and any judgment adverse to the defendant is absolutely void.” DeJarnette Supply Co. v. F. P. Plaza, 229 Ga. 625, 626 (193 SE2d 852) (1972). Since no issue of waiver was raised by the plaintiffs in the trial court or on appeal, that issue was not preserved for appellate review. Pleats, Inc. v. OMSA, Inc., 211 Ga. App. 643, 645 (440 SE2d 214) (1994). In the absence of proper service on the DOT, the trial court lacked jurisdiction and erred by finding the DOT in default and by denying the DOT’s motion to dismiss the complaint for lack of service.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.


author: Smith, Judge.

text:
    A95A2615.
    HUNT v. THE STATE.
    (466 SE2d 894)
   Smith, Judge.

Larry Hunt was convicted of selling cocaine. His motion for new trial was denied, and he appeals.

1. Hunt contends the State was erroneously permitted to make prejudicial closing remarks. He complains about the prosecutor’s comment that Hunt was a drug dealer who caused people to become addicts: “Larry Hunt is not an addict. [He] is a drug dealer. He’s the one that pushes the stuff on addicts. He’s the one who makes the addicts, the addicts who when they take this stuff once and that’s about all it takes.” The prosecutor also commented regarding the effects of crack cocaine, stating that crack “is probably the most influential, detrimental aspect of our whole society. You take this you’ve got to have more. That’s all there is to it. It’s the only thing I’ve ever seen that is stronger than a mother’s love for a child. A pregnant woman takes this knowing there is a good chance this will make her give birth to a deformed child, a blind child, a child without fingers or toes, a child who will never bond with its parents and is almost absolutely destined to grow up to be a psychopath.”

Parties enjoy “considerable latitude” when making closing arguments. See, e.g., Crowe v. State, 265 Ga. 582, 592 (458 SE2d 799) (1995). The prosecutor in this case did not exceed the bounds of permissible argument. Bell v. State, 263 Ga. 776 (439 SE2d 480) (1994), relied upon by Hunt, is distinguishable from this case. There, defendant was tried for trafficking in heroin. Id. at 776. Although no evidence existed that violence or threats of violence were involved in the transaction involving a sale of 7.5 grams of heroin in which defendant participated, the prosecutor during closing argument referred to a triple murder and a serial rapist. Id. at 776-777. Finding no evidence from which a reasonable inference of rape or murder could be drawn, the Georgia Supreme Court reversed this Court’s affirmance of the trial court’s denial of defendant’s motion for new trial. Id. at 778. Here, the prosecutor’s argument did not contain “extraneous and prejudicially inflammatory material.” Id. The remarks referred to the potential effects of crack cocaine use. A prosecutor may argue that a jury “should convict so to stem a drug problem in the community. [Cit.]” McKibbons v. State, 216 Ga. App. 389, 393 (4) (455 SE2d 293) (1995). See also Bowen v. State, 203 Ga. App. 371, 374 (5) (417 SE2d 18) (1992). The prosecutor’s comments were reasonable inferences drawn from the evidence and hence did not violate OCGA § 17-8-75; the trial court did not err in denying Hunt’s motion for mistrial.

2. Hunt contends the trial court erroneously denied his motion that the State be required to identify eyewitnesses to the alleged drug transaction. At a pre-trial hearing, Pamela Brown, an undercover agent to whom the State alleged Hunt sold a quantity of cocaine, testified she rode with two individuals, both males, to Hunt’s house on the evening of May 24, 1994. She characterized these individuals as confidential informants. She stated that both men knew Hunt and that one of them went to the door of the house, “asked Mr. Hunt if he was holding anything,” and told Hunt “he had somebody that wanted to purchase something.” According to Brown, the informant returned to the car and told her she could “go get what [she] wanted.” Brown went to the door and completed a transaction with Hunt in which she bought $20 worth of cocaine.

Hunt contended in his motion that testimony from the individuals inside the car could exculpate him. He contended if he were guilty, “he would know who one of the eyewitnesses was . . . but being innocent, he must rely on the State to provide this information so that he [could] subpoena these witnesses. . . .” The record belies Hunt’s contention on appeal that his defense “hinged on a case of mistaken identity.” Hunt testified at trial and stated he was visiting his estranged wife at her house on the night of May 24, 1994. He did not, however, subpoena his wife to testify on his own behalf because he saw “no need to; nobody else subpoenaed her. It’s common for a man to be with his wife.”

We are mindful of the “balancing test” to be employed by the trial court in making a determination as to whether to compel disclosure of the state’s confidential informants as set forth in Moore v. State, 187 Ga. App. 387 (370 SE2d 511) (1988) and its progeny. Applying this test, we are satisfied, under the totality of the circumstances, that the trial court did not err in refusing to compel identification of the confidential informants either at the pre-trial hearing or at trial. Even though one of the informants interacted with the individual from whom Brown purchased the cocaine and arguably could be described as an “informer-participant,” the individuals assisting Brown were not the only witnesses who were “in a position to amplify or contradict” the testimony of Brown or Hunt. See Moore, supra at 389. For example, Hunt’s wife could have been subpoenaed to corroborate his alibi defense that he was visiting her when the drug transaction occurred. Hunt did not show that the informants were necessary or that either was “the sole and essential witness available to amplify or contradict the testimony of the government’s witnesses and [Hunt].” (Emphasis in original.) Tuff v. State, 202 Ga. App. 772, 773 (415 SE2d 702) (1992). See also Smith v. State, 192 Ga. App. 144 (384 SE2d 677) (1989). The trial court did not err in refusing to compel the State to identify the confidential informants.

3. Hunt contends the trial court erroneously allowed the State to introduce evidence that he had pled guilty to a cocaine sale charge ten years prior to the transaction with which he was charged. The court conducted a hearing outside the jury’s presence regarding the admissibility of the transaction. Hunt’s attorney argued that the events were too remote and that the earlier transaction was not similar to the one for which he was on trial. We disagree.

A former GBI agent testified at trial that on September 28, 1984, while near a street corner, he was introduced by a confidential informant “to a person identified as Larry Hunt” and bought $50 worth of cocaine from that individual. A showing that the independent crime involved the sale “of comparable amounts of crack cocaine” is sufficient proof of similarity between the prior crime and the one for which the accused is being tried. Hunter v. State, 204 Ga. App. 25, 26 (418 SE2d 402) (1992). The quantity sold during the independent crime is comparable to that purchased by Officer Brown and thus is sufficiently similar to that at issue in this case.

The agent, when asked whether he could make an in-court identification, stated he would “be hard pressed to say yes.” However, the agent’s failure to positively identify Hunt was not crucial. The identity of the perpetrator of the prior crime was established by the prior plea of guilty. Hunt did not deny during his testimony that he was the Larry Hunt who entered a guilty plea to the prior indictment for sale of cocaine, nor did he contend that the Larry Hunt who pleaded guilty to the prior crime was a different Larry Hunt than the one on trial. “Identity of name presumptively imports identity of person, in the absence of any evidence to the contrary. [Cit.] No question of identity was raised in the trial court, and it is too late to raise the question here.” Mitchell v. State, 134 Ga. App. 376, 379 (214 SE2d 593) (1975). See also Banks v. State, 201 Ga. App. 266, 269 (1) (410 SE2d 818) (1991). Consequently, it was not error to admit this evidence of a prior similar transaction.

Decided December 13, 1995

Reconsideration denied January 2, 1996

James N. Finkelstein, for appellant.

Britt R. Priddy, District Attorney, for appellee.

4. Hunt maintains that because a fatal variance existed regarding the address of the location where the drugs were allegedly sold between the indictment and the proof at trial, the court should have granted his motion for directed verdict. With the exception of the location of the county in which the alleged crime occurred, however, the specific location was not an element of the crime charged against Hunt, and the location charged in the indictment was mere surplus-age. See Stacey v. State, 214 Ga. App. 130, 131 (447 SE2d 339) (1994); Chavous v. State, 205 Ga. App. 455, 456 (1) (422 SE2d 327) (1992). The trial court did not err in denying Hunt’s motion for directed verdict.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

       The only statement in this regard was made by counsel for Hunt, that he “just want[ed] some way of verifying that this is the right Larry Hunt.” He did not object to the admission of the similar transaction evidence on the issue of identity of the perpetrator.


author: Johnson, Judge.

text:
    A95A2739.
    GEORGIA PHYSICAL THERAPY, INC. v. McCULLOUGH.
    (466 SE2d 635)
   Johnson, Judge.

Scott McKeever, a certified athletic trainer, was employed by Georgia Physical Therapy, Inc. (“GPT”). GPT encouraged its employees to participate in community activities, and, as part of this program, McKeever volunteered to work with various sports teams at South Cobb High School, including the football team. Jeffrey McCullough, one of the football players, complained to McKeever of pain in his right foot. McKeever attributed the pain to an ingrown toenail. Despite McKeever’s advice regarding care of the toe, however, the condition worsened. When McCullough complained again a week later, McKeever noted that the toenail area was red, and recommended that McCullough consult with his family physician. As a result of medical complications which arose in connection with his toe, McCullough brought suit against numerous defendants, asserting a malpractice claim against McKeever and alleging negligent hiring, supervision, and training against GPT.

The trial court granted McKeever’s motion to dismiss because McCullough failed to file an affidavit in accordance with OCGA § 9-11-9.1. McCullough has not appealed that ruling. We granted GPT’s application for interlocutory review of the trial court’s denial of its motion to dismiss based on the absence of an expert affidavit.

The trial court found that by failing to have a physician on staff and available to its athletic trainers, GPT breached its legal duty by knowingly permitting McKeever to violate OCGA § 43-5-1 (2). Having committed negligence per se, the court concluded that the OCGA § 9-11-9.1 affidavit requirement was not applicable. The court relied on Central Anesthesia Assoc. v. Worthy, 254 Ga. 728 (333 SE2d 829) (1985), in which the Supreme Court held that Central Anesthesia had breached a statutory duty in allowing an uncertified student nurse anesthetist to administer anesthesia while not under the direction of an anesthesiologist.

On appeal, GPT argues that the complaint did not assert a claim arising from a breach of a statutory duty. Even if it had, GPT asserts that OCGA § 43-5-1 (2) is inapplicable. We agree. OCGA § 43-5-1 does not require that a physical therapy group have a physician on staff. Further, the Code section delineates those procedures, “use [of] physical modalities, such as heat, light, sound, cold, electricity, or mechanical devices,” a trainer is permitted to perform on a patient “upon the advice and consent of a physician.” By failing to specify that this list is without limitation, the list of procedures contemplated by the statute must be construed as inclusive. See generally Hamlin v. Timberlake Grocery Co., 130 Ga. App. 648, 650 (1) (204 SE2d 442) (1974). Other services a trainer might render, such as advice regarding care of an ingrown toenail, which do not involve physical modalities may be provided without advice and consent of a physician. Furthermore, the final portion of OCGA § 43-5-1 (2) provides: “The term ‘athletic trainer’ shall not include any student, teacher, or other person who serves as an athletic trainer for an elementary school or high school, either public or private, within this state.” Because McKeever was acting as an athletic trainer for a high school, the provisions of the statute, by its own terms, are inapplicable.

Even if we disagree with the trial court’s reasoning, however, we still examine whether there is a legal basis for the result reached below. The complaint alleges that at all times relevant to the complaint McKeever was acting within the scope of his employment as agent for GPT. It further alleges that GPT negligently hired, supervised, and trained McKeever. We have held that a malpractice affidavit is required in suits against entities not required to be licensed by this state where liability is predicated on the doctrine of respondeat superior or when “the averment of acts or omissions requiring the exercise of professional skill and judgment by agents or employees who themselves are recognized as ‘professionals.’ ” Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 64-65 (3) (424 SE2d 632) (1992); Robinson v. Med. Ctr. of Central Ga., 217 Ga. App. 8, 9 (456 SE2d 254) (1995); Hodo v. Gen. Hosps. of Humana, 211 Ga. App. 6, 8 (2) (438 SE2d 378) (1993). Applying that principle to the facts of this case, it is clear that McCullough’s claims against GPT arise out of the treatment rendered by its agent, McKeever, in the exercise of his professional skill and judgment. McCullough’s failure to file an expert affidavit in accordance with OCGA § 9-11-9.1 mandates the dismissal of his claims against GPT. See Lutz v. Foran, 262 Ga. 819, 824 (4) (427 SE2d 248) (1993).

Decided December 6, 1995

Reconsideration denied January 2, 1996

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

Repasky & Bates, Alexander J. Repasky, for appellee.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.


text:
    A95A1972.
    In the Interest of L. M. et al., children.
    (466 SE2d 887)
   Blackburn, Judge.

Appellant, Judith Ann Miracle, appeals the order of the juvenile court terminating her parental rights to L. M., A. M., A. M., K. M., R. M., and S. M. (the children).

The children, less R. M. and S. M. who had not yet been born, were initially placed in the temporary custody of the Barrow County Department of Family & Children Services (DFCS) by juvenile court emergency order on July 3, 1990. The DFCS’s initial concern was that the children were unsupervised in the home. On February 22, 1993, the juvenile court adjudicated the children deprived in that, among other things: Miracle was arrested and incarcerated for burglary on January 4, 1993; while incarcerated, she admitted addiction to crack cocaine and alcohol; on January 19, 1993, six days after Miracle’s release from confinement, her husband, Clayton Miller, was arrested for cruelty to one of the children; additional reports indicating that the children had been left unsupervised; and other reports indicated that the children were endangered by Miller’s abuse of alcohol. On February 18, 1993, DFCS determined that Miracle had been drunk and unconscious when one of the children was burned while playing with cigarettes. The juvenile court extended its temporary custody order on October 5, 1994, upon finding that DFCS had made reasonable and significant efforts to return the children to the home without success and that both Miracle and Miller were incarcerated in the prison system of Georgia upon convictions in December 1993 for child molestation and cruelty to children.

On November 29, 1994, DFCS filed a petition for termination of parental rights under provisions of OCGA § 15-11-81 (b) (4) (B) (iii) and (iv) in that Miracle and Miller were convicted and imprisoned for child molestation and cruelty to children as well as egregious conduct toward the children of “a physically, emotionally, or sexually cruel or abusive nature.” Id. at (iv). By order filed March 23, 1995, the juvenile court further adjudicated the children deprived and terminated parental rights in Miracle and Miller. Only Miracle has appealed.

1. Miracle first enumerates that the juvenile court erred by denying her motion for disqualification and/or recusal of the judge in that the juvenile court judge, when sitting as a judge of the Superior Court of the Piedmont Judicial Circuit, had earlier taken her pleas and presided in three criminal cases against her.

Uniform Juvenile Court Rule 27.2 pertinently provides affidavits submitted in support of a motion to disqualify or to recuse a judge “shall clearly state the facts and reasons for the belief that bias or prejudice exists, being definite and specific as to time, place, persons and circumstances of extra-judicial conduct or statements, which demonstrate either bias in favor of any adverse party, or prejudice toward the moving party in particular . . . which would influence the judge and impede or prevent impartiality in that action. Allegations consisting of bare conclusions and opinions shall not be legally sufficient to support the motion or warrant further proceedings.” See also Carter v. State, 246 Ga. 328, 329 (271 SE2d 475) (1980). The record shows that Miracle offered by affidavit only the bare conclusion that “she does not feel that she can receive a fair hearing before the [juvenile court], due to the fact that [such court] presided at her earlier criminal proceedings.” Accordingly, we deem this enumeration of error to be without merit.

2. Miracle next contends that there was insufficient evidence to warrant terminating her parental rights in that neither “parental misconduct or inability” nor “termination of parental rights is in the best interest of the children” was shown by clear and convincing evidence.

“ ‘The termination of parental rights under OCGA § 15-11-81 is a two-step process. First, the court determines whether there is clear and convincing evidence of parental misconduct or inability. Second, the court considers whether termination is in the best interest of the child. In the Interest of G. K. J., 187 Ga. App. 443, 444 (3) (370 SE2d 490) (1988). The standard for appellate review of a termination of parental rights is “ ‘whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights had been lost. (Cit.)’ (Cit.)” In the Interest of R. L. H., 188 Ga. App. 596, 597 (373 SE2d 666) (1988).’ In the Interest of C. D. P., 211 Ga. App. 42, 43 (3) (438 SE2d 155) [(1993)].” In the Interest of M. R., 213 Ga. App. 460, 463 (444 SE2d 866) (1994).

Parental misconduct or inability is determined by finding: 1) that the child is deprived; 2) that the lack of proper parental care or control is the cause of the deprivation; 3) that the child’s deprivation is likely to continue or will not be remedied; and 4) that continued deprivation is likely to cause serious physical, mental, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). Among the factors relevant to a child lacking parental care and control is “[c]onviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship.” OCGA § 15-11-81 (b) (4) (B) (iii). Another is a parent’s “[e]gregious conduct or evidence of past egregious conduct of the parent toward the child ... of a physically, emotionally, or sexually cruel or abusive nature.” OCGA § 15-11-81 (b) (4) (B) (iv).

In the case sub judice, an unappealed order entered by the juvenile court established that the children were deprived within the meaning of OCGA § 15-11-81 (b) (4) (A) (i). See In the Interest of B. P., 207 Ga. App. 242, 244 (427 SE2d 593) (1993) (unappealed deprivation determination binding on appeal). While the convictions of the parents for felonies and their imprisonment in consequence thereof is not ipso facto sufficient to support a finding that a child lacks parental care and control, incarceration for a crime will support such a finding when adequate aggravating circumstances are shown to exist. In the Interest of S. K. L., 199 Ga. App. 731, 733 (405 SE2d 903) (1991). The record amply supports the trial court’s determination that aggravating circumstances existed in that the parents were found guilty of molesting their own children and of cruelty to children and that the children are afraid of their parents.

Miracle argues that there is no clear and convincing evidence of her current unfitness or that the children’s deprivation would likely continue in the future arguing that she is a changed person, having experienced the murder of one of her children and the sexual molestation of another while in DFCS custody. However, “ ‘the decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.’ [Cit.]” In the Interest of D. I. W., 215 Ga. App. 644, 646 (451 SE2d 804) (1994). Further, “ ‘[t]he past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue. (Cits.)’ [Cit.]” In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991). Our review of the record shows that there was sufficient clear and convincing evidence to support the juvenile court’s findings as to Miracle’s parental misconduct or inability, the first part of the two-step test.

Decided December 11, 1995

Reconsideration denied January 3, 1996

Russell & Mingledorff, Currie M. Mingledorff II, for appellant.

Michael J. Bowers, Attorney General, Shalen A. Sgrosso, Teresa E. Lazzaroni, Assistant Attorneys General, John R. Laseter, Doug R. Daum, for appellees.

As to the second step of the test, Miracle argues that the juvenile court erred in terminating her parental rights as in the best interest of the children. In particular, she disputes the trial court’s determination that there was no suitable family member with whom the children could be placed. Miracle, however, does not support this claim by citation to evidence of record nor are we able to find such evidence therein. Rather, the record reflects only evidence indicating that neither Miracle nor Miller suggested the name of any relative who could take custody of the children throughout the entire period the children were in DFCS custody. Moreover, factors indicating parental misconduct or inability can also establish that the termination of parental rights is in the best interest of the child. In the Interest of B. P., supra at 245. In light of the foregoing, we conclude that there was sufficient clear and convincing evidence to support the juvenile court’s finding that the termination of parental rights was in the best interest of the children.

Both parts of the two-step test having been supported by proper evidence, the decision of the trial court to terminate parental rights is affirmed.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       On August 26, 1993, Miracle was convicted of burglary in the first such case and of possession of a firearm by a convicted felon and of the discharge of a firearm near a public road in the second. She was convicted of child molestation and cruelty to children in the third criminal trial conducted on December 7, 1993.


text:
    A95A2297.
    STAFFORD v. BRYAN COUNTY BOARD OF EDUCATION.
    (466 SE2d 637)
   Blackburn, Judge.

Pursuant to OCGA § 22-2-100, the Bryan County Board of Education filed a condemnation petition in the Superior Court of Bryan County to acquire fee simple title to a 1.99-acre tract of land for the purpose of a road right-of-way to and from an elementary school in Richmond Hill, Georgia. Charles L. Stafford, the Bryan County tax commissioner, and the heirs of Andrew and Amelia Thomas were named as condemnees.

The trial court thereafter appointed a special master who, following a hearing, entered an award on December 7, 1992. Stafford filed exceptions to the award and an appeal of the same to the superior court. The superior court conducted a hearing as to Stafford’s exceptions and ordered the special master to file an amended finding within 15 days and make recommendation as to the ownership of the property. Thereafter, on March 8, 1993, the superior court made the December 7 award, as amended, its judgment. On March 12, 1993, Stafford filed exceptions to the amended award and a notice of appeal of the valuation issue to the superior court. On March 30, 1995, after a trial on the valuation issue the jury returned a verdict for the condemnees in the amount of $34,125, and, on April 6, 1995, the trial court entered judgment upon the jury’s verdict. Stafford now appeals.

1. Stafford first enumerates that the trial court erred by entering its March 8, 1993 judgment which made the amended award of the special master the judgment of the court and condemned the subject property to the Board’s use, before considering his exceptions to the amended award although these were timely filed within ten days thereof pursuant to OCGA § 22-2-112.

“Exceptions to the special master’s rulings on nonvalue issues must be made prior to the judgment authorized by [OCGA § 22-2-111]. [Cit.]” Sweat v. Ga. Power Co., 235 Ga. 281, 285 (219 SE2d 384) (1975). Four days after the special master filed his amended findings, the trial court filed its judgment making the special master’s amended award the judgment of the court. However, on March 12, 1993, Stafford filed a second bill of exceptions as to the amended award. Stafford’s exceptions to the special master’s amended award repeated exceptions that he made to the original award or for the first time excepted as to matters upon which he could have excepted originally. Our review of the record indicates that the trial court properly acted upon Stafford’s exceptions to the original award. To the extent that Stafford requested de novo consideration of value by jury while contemporaneously excepting to the special master’s valuation and related evidentiary determinations, he rendered the latter moot. Further, in conformity with the trial court’s order, the special master amended his original award to comply with the form prescribed by OCGA § 22-2-110 (c), refiled his oath as special master, and gave additional consideration as to the ownership of the property immediately prior to the commencement of condemnation proceedings. In doing so, the special master made no new substantive ruling or determination, resulting in an amended award which was substantively identical to the original.

While the statute clearly contemplates that the parties to a special master’s rulings and findings should have a right to take exception thereto in the trial court, Beck v. Cobb County, 180 Ga. App. 808, 811 (350 SE2d 818) (1986), it is equally clear that the right to file exceptions under the statute would not extend to exceptions taken to an amended award not substantively changing an original award, particularly where, as here, such exceptions were properly acted upon or waived for failure to timely except to the original award. See id. (“[T]he failure of a party to file exceptions to the master’s award for determination by the superior court results in a waiver of the party’s right to further litigate any nonvalue issues.”) A contrary result would confer a right to file exceptions not recognized by statute, conflicting with the legitimate ends of judicial economy and the special master method of condemnation, the purpose of which is to afford a speedy and just means of considering a citizen’s interest in property before action may be taken to condemn it. Id. at 810. Accordingly, we deem this enumeration of error to be without merit.

2. In his second and third enumerations of error Stafford contends that the trial court erred by vacating its pretrial ruling disallowing evidence regarding title to the condemned property as bearing on its value. Citing Dept. of Transp. v. Petkas, 189 Ga. App. 633 (377 SE2d 166) (1988), Stafford argues that in the absence of a pending lawsuit between condemnees, allowing evidence as to his title in the property and as to attorney fees necessary to cure such title was reversible error. We disagree.

(a) Title Evidence. “ ‘A title which exposes the vendee to litigation is not a good and merchantable one if the danger thereof is apparent and real, not merely imaginary or illusory, which may be apprehended upon the basis of some fact or truth as to which there can be ascertainment with reasonable certainty. (Cit.)’ [Cit.]” Petkas, supra at 637-638. That a title abstractor was here permitted to testify that a break in title existed rendering him unable to establish that the property was duly conveyed to Stafford’s predecessor in title, was relevant as it demonstrated in real terms Stafford’s vulnerability to litigation thereon, a circumstance which reasonably could affect the property’s value. Id.

(b) Attorney fees. Stafford did not object to the testimony of a real estate appraiser who, as an expert witness for the Board, testified that, in his opinion, attorney fees of $10,000 would be required to clear the title to Stafford’s property. Assuming without deciding that the trial court erred in permitting the expert’s testimony as to valuation, such error was waived for want of timely objection. See Sutphin v. McDaniel, 157 Ga. App. 732 (278 SE2d 490) (1981) (failure to interpose specific objection when evidence offered waiver on appeal).

3. In his fourth enumeration of error Stafford contends that the trial court erred by denying his motion in limine with respect to excavation costs as affecting the value of the condemned property.

Citing Barnwell v. State Hwy. Dept., 108 Ga. App. 335 (132 SE2d 842) (1963), Stafford argues that the costs associated with filling in or excavating land condemned for the construction of a roadway are immaterial to the value of the land upon its taking. However, Barnwell held only that such costs were immaterial in the sense that the value of a condemned property for the construction of a public road is determined on the basis of its market value for all purposes, rather than the use for which the property is condemned. Id. at 338. See also State Hwy. Bd. of Ga. v. Shierling, 51 Ga. App. 935 (181 SE 885) (1935).

“Fair market value is the price a seller who desires, but is not required, to sell and a buyer who desires, but is not required, to buy, would agree is a fair price, after due consideration of all the elements reasonably affecting value. [Cit.]” (Emphasis supplied.) Wright v. MARTA, 248 Ga. 372, 375 (283 SE2d 466) (1981). “Any evidence is relevant which logically tends to prove or disprove a material fact which is at issue in a case, and every act or circumstance serving to elucidate or throw light upon that material issue is relevant and admissible. [Cits.]” Dept. of Transp. v. Lewyn, 168 Ga. App. 283, 287 (308 SE2d 684) (1983). Condemnor’s expert witness recommended that any person or entity desiring to “put some type of structure, similar to a road or parking area . . . over [the landfill area]” remediate the area by removing the existing fill material and replacing it with “new fill material” before commencing the project. We conclude, as the trial court did, that the general environmental condition of the condemned property, as a former landfill requiring remediation, was a relevant factor in fairly assessing the market value of the property, not simply as to the condemnor, but as to all prospective buyers. Accordingly, we deem this enumeration of error to be without merit.

4. Stafford last enumerates that the trial court erred by continuing the special master’s hearing for a period in excess of five days in violation of OCGA § 22-2-108. Stafford raises this issue for the first time on appeal. His failure to preserve the issue by timely objection below constitutes waiver on appeal. “A party cannot ignore that which he considers to be an injustice during or prior to the trial of the case in hopes of obtaining a favorable verdict and then enumerate that alleged injustice as error on appeal when the verdict proves to be adverse.” Gusky v. Candler Gen. Hosp., 202 Ga. App. 837 (415 SE2d 541) (1992). This enumeration of error is therefore likewise without merit.

Decided December 11, 1995

Reconsideration denied January 3, 1996

Henderson & Henderson, Michele M. Henderson, Devaul L. Henderson, Jr., Michael P. Ludwiczak, for appellant.

Edenfield & Cox, Gerald M. Edenfield, Susan W. Cox, Troy W. Marsh, Jr., for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A95A1830.
    RINGO v. THE STATE.
    (466 SE2d 660)
   Johnson, Judge.

Robert Ringo appeals the trial court’s denial of his motion for discharge and acquittal. Accusations were returned charging Ringo with speeding and driving under the influence of alcohol on January 21, 1994. On February 24, 1994, Ringo filed various pre-trial motions, including a motion to suppress, and a timely speedy trial demand pursuant to OCGA § 17-7-170. The first sentence of the speedy trial demand states: “Now comes the Defendant and demands a TRIAL BY JURY, and this is a request for speedy trial under O.C.G.A. § 17-7-170.” In March, Ringo filed a document purporting to withdraw his request for jury trial. In July, the court granted the State’s request to continue the case off a July 14, 1994 trial calendar. On August 1,1994, the court heard argument on Ringo’s pre-trial motions, including his motion to suppress, which it granted in part and denied in part. At the hearing, the trial court judge informed the parties that the case would be tried by a jury because he feared his knowledge of the suppressed intoximeter results might color his evaluation of the remaining evidence. Also at the hearing, the court removed the case from an August 15, 1994 trial calendar, with the clear consent of Ringo’s counsel, and directed the State not to put the case on a trial calendar until the Georgia Supreme Court either granted or denied the State’s petition for a writ of certiorari of this Court’s opinion in State v. Leviner, 213 Ga. App. 99 (443 SE2d 688) (1994). The petition for a writ was denied, and the case was placed on an October jury trial calendar. On October 7, 1994, the trial court granted Ringo’s motion to continue the case off the October jury calendar because his attorney was scheduled for outpatient surgery. On November 10, 1994, Ringo filed a motion for discharge and acquittal pursuant to OCGA § 17-7-170. The motion was denied on February 6, 1995.

The Gwinnett Circuit has six regular terms of court each year, beginning on the first Monday in January, March, May, July, and November and the second Monday in September. OCGA § 15-6-3 (20); Ga. L. 1981, pp. 3033, 3034, § 2. Ringo filed his demand for speedy trial during the January term. Jurors were impaneled during the January and March terms. Therefore, in order to comply with his speedy trial demand, Ringo should have been tried before the end of the March 1994 term, the second regular term of court following the term in which his demand was filed. Compare White v. State, 202 Ga. App. 370, 371 (414 SE2d 296) (1991).

The State argues that by filing a withdrawal of his demand for a trial by jury, Ringo also withdrew his speedy trial demand. However, our review of the document does not provide us with any basis for making such an assumption. It was captioned “Defendant’s withdrawal of demand for trial by jury and objection to the state’s demand for trial by jury.” No mention was made of the demand for speedy trial and we conclude that Ringo’s withdrawal of a request for a jury trial did not either explicitly or impliedly withdraw his demand for a speedy trial. In the alternative, the State contends that Ringo’s continued participation in pre-trial hearings, and acquiescence to a continuance proposed by the trial judge constitutes a waiver of any claim that a speedy trial demand was still in effect. The State relies on State v. Stewart, 191 Ga. App. 35 (381 SE2d 50) (1989), for the proposition that a defendant waives his right to a speedy trial by agreeing to a continuance for a second term. However, in Stewart, the agreement to continue the case beyond the second term was made during a term in which the case could have been tried and satisfied the speedy trial demand. Here, the case was not tried in the January, March or May term. The motion to suppress, which could have tolled the demand had it been granted and appealed by the State, was not argued until August 1, 1994. See State v. Waters, 170 Ga. App. 505, 508 (3) (317 SE2d 614) (1984). Ringo’s agreement to a continuance suggested by the trial judge, and his own request for another continuance for medical reasons, occurred after the end of the second term of court. These actions were of no effect because his discharge had already occurred by operation of law. Thornton v. State, 7 Ga. App. 752, 753 (1) (67 SE 1055) (1910). Only actions taken by a defendant during the period in which a trial would have satisfied his speedy trial demand can operate as a waiver of a speedy trial demand. Because Ringo was automatically discharged at the close of the March term, the later actions taken by Ringo do not constitute a waiver of his demand for speedy trial. See Smith v. State, 192 Ga. App. 604 (386 SE2d 370) (1989). The trial court erred in denying Ringo’s motion for discharge and acquittal.

Decided January 3, 1996.

William C. Head, for appellant.

Gerald N. Blaney, Jr., Solicitor, Susan C. DeVane, Richard E. Thomas, Assistant Solicitors, for appellee.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.

       See 213 Ga. App. 902 (1994).


author: McMurray, Presiding Judge.

text:
    A95A2086.
    In the Interest of L. R., a child.
    (466 SE2d 653)
   McMurray, Presiding Judge.

A delinquency petition was filed in the Juvenile Court of Gwinnett County, Georgia, alleging that on March 15, 1995, the fifteen-year-old minor, L. R., committed three delinquent acts constituting the offenses of aggravated assault (if committed by an adult) by shooting a firearm, hitting one victim. According to a complaint filed with the juvenile court, L. R. “shot into a vehicle with a pistol striking an occupant in the vehicle.” In a separate delinquency petition filed at the same time, it was alleged that on March 11, 1995, L. R. committed two other delinquent acts constituting the offenses of aggravated assault (if committed by an adult) by pointing a firearm at the heads of two victims. The State moved to transfer L. R. to the jurisdiction of the superior court for trial as an adult on felony charges. After a hearing, the juvenile court determined that reasonable grounds existed to believe L. R. had committed the delinquent acts alleged; that L. R. was not committable to an institution for the mentally retarded or mentally ill; and that it was in the best interests of the child and the community that he be prosecuted as an adult. Consequently, the juvenile court ordered the cases transferred to the superior court. This direct appeal followed. Held:

1. In his first enumeration, L. R. contends the trial court erred in finding that the State’s notice of motion for transfer to the superior court was sufficient under OCGA § 15-11-39 (a) (2). In reply to the juvenile court’s direct inquiry as to the sufficiency of notice, however, L. R. admitted receipt of the State’s written motion and interposed no objection. Rather, he proceeded on the merits of that motion. We find that any valid objection to the sufficiency of notice was waived thereby. See In the Interest of W. J. G., 216 Ga. App. 168, 170 (1), 171 (453 SE2d 768).

2. In three related enumerations, L. R. challenges the sufficiency of the evidence to support the juvenile court’s order to transfer.

On March 15, 1995, Adam Rudabaugh was a passenger in a gray 1987 Chevrolet Nova driven by Emily Stoddard. After he exchanged rude gestures with the driver of an unusual maroon truck, the driver “pulled a gun on me,” and fired three or four shots. One bullet struck Adam Rudabaugh “right at the center of [his] chest above [the] sternum and below [the] throat.” Christopher Watts was driving his vehicle which had just been passed by the dark red full-sized pickup. He observed as an “arm came out of the left window and fired three or four shots into the gray car, the gray Nova.” L. R.’s mother informed Detective Victor Pesaresi that L. R. “was driving her deceased husband’s . . . maroon Ford pickup, ’85, black vinyl top, low rider.” Kathleen Bass was a passenger in that truck on March 15, 1995, and identified L. R. as the driver. She carried bullets in her backpack for L. R. and gave him “[f]our or five,” after the shooting. As to the March 11, 1995, incident, Jacob Charles Cobb identified L. R. as the driver of a truck who “pulled a gun out and stuck it at Chris Sherrill’s head. . . .” The driver also “waved it kind of . . .” at Jacob Charles Cobb. This evidence is sufficient to provide reasonable grounds to believe that L. R. committed the delinquent acts alleged in the petition. In re R. B., 264 Ga. 602, 603 (1) (448 SE2d 690). It is undisputed that L. R. was at least 14 years of age at the time of the alleged delinquent acts. Accordingly, a transfer to the superior court for prosecution as an adult was mandated by OCGA § 15-11-39 (b). These enumerations are without merit.

3. In his fifth enumeration, L. R. contends the juvenile court erred in admitting a photographic lineup. He argues that the lineup was unduly suggestive and that the “State failed to lay necessary foundation that the photographs of L. R. were taken in conformity with O.C.G.A. § 15-11-60 (g).” This Code section provides: “Without the consent of the judge, a child shall not be photographed after he or she is taken into custody unless the case is transferred to another court for prosecution.” (The 1995 amendment changed the designation subsection (g), effective and applicable in the case sub judice, to subsection (e)).

(a) The transcript shows that Detective Pesaresi identified State’s Exhibit Number 2 as the “photo lineup that [he] constructed with the picture of L. R.” Counsel for L. R. initially objected to the “photo lineup identification process . . . [because] the picture number five that [four witnesses identified] as being of L. R. has a different background than the other pictures in the spread.” We have examined the photographs in State’s Exhibit 2 and conclude that this circumstance did not make the photographic lineup procedures unduly suggestive. Brewer v. State, 219 Ga. App. 16 (6) (463 SE2d 906).

Decided January 3, 1996.

Rich & Smith, Randolph G. Rich, for appellant.

Daniel J. Porter, District Attorney, Karen Reed, Assistant District Attorney, for appellee.

(b) Counsel subsequently objected on the ground that, “if L. R. was in custody at the time this photograph was obtained, [then it] would be our right to be notified.” The State’s attorney explained she could not have notified opposing counsel because it was “Detective Burnett [himself and not the State’s attorney who] obtained the order from the Court. . . .” Although that order does not appear of record, the consent of the juvenile court to the custodial photograph of the minor is implicit in its ruling to admit the exhibit over objection. See, e.g., Evans v. State, 209 Ga. App. 606, 607 (2) (434 SE2d 148). Consequently, this enumeration is without merit.

4. Detective Pesaresi conducted a custodial interview of L. R. and this interview was videotaped. Over L. R.’s “best evidence” objection, the juvenile court allowed Detective Pesaresi to testify from his recollection as to incriminating custodial statements made to him by L. R., and this evidentiary ruling is enumerated as error. L. R. contends it was improper to allow Detective Pesaresi “to summarize the [incriminating custodial] statements made by L. R. . . . instead of admitting the entire videotaped statement into evidence.” We disagree. The contents of a conversation or statement which are captured on videotape are not subject to a “best evidence” objection because the “best evidence” rule applies only to writings. Perkins v. State, 260 Ga. 292, 295 (7) (392 SE2d 872). The juvenile court did not err in permitting L. R.’s custodial statements to be related by an ear witness to the statements.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2162.
    DEPARTMENT OF HUMAN RESOURCES v. WILCOX.
    (466 SE2d 662)
   McMurray, Presiding Judge.

This is a discretionary appeal from a superior court order modifying an administrative decision of the appellant Georgia Department of Human Resources setting the amount of child support to be paid by a non-custodial parent, Bobby Wilcox. Held:

Decided January 3, 1996.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Kevin M. O’Connor, Assistant Attorney General, for appellant.

John C. Pridgen, District Attorney, James E. Turk, Assistant District Attorney, Mills & Chasteen, Robert W. Chasteen, Jr., for appellee.

Appellant maintains that the superior court erred by setting the child support obligation at an amount below the statutory guidelines without written findings explaining the variance from the guidelines. Such written findings are required under OCGA § 19-6-15 (b) and (c) as construed in Ehlers v. Ehlers, 264 Ga. 668, 669 (1) (449 SE2d 840). “The finding ‘must state the amount of support that would have been required under the guidelines and include justification of why the order varies from the guidelines.’ ” (Citation omitted.) Id. See also Faulkner v. Frampton, 216 Ga. App. 785 (456 SE2d 88).

Insofar as OCGA § 19-6-15 (b) allows for a specific finding on the record in lieu of a written finding, it is inapplicable under the circumstances of the case sub judice since there is no transcript of the hearing before the superior court. In the absence of a transcript or substitute, we may not rely upon the assertions contained in the brief of Bobby Wilcox concerning specific findings made by the superior court at the hearing. Bank South, N.A. v. Zweig, 217 Ga. App. 77, 78 (10) (456 SE2d 257); Morse v. Flint River Community Hosp., 215 Ga. App. 224, 226 (450 SE2d 253).

While OCGA § 19-6-15 (c) has been amended since the decision in Ehlers v. Ehlers, 264 Ga. 668, 669 (1), supra, the requirement for written findings remains. Accordingly, this case must be remanded for written findings in accordance with OCGA § 19-6-15 (b) and (c), and Ehlers, after which either party may apply for appellate review.

Judgment vacated and case remanded with direction.

Andrews and Blackburn, JJ., concur.