author: Johnson, Judge.

text:
    A92A0455.
    THE STATE v. WATSON.
    (422 SE2d 202)
   Johnson, Judge.

This is an appeal by the state from the grant of the defendant’s motion to suppress evidence in a prosecution for unlawful possession of cocaine with intent to distribute.

The arresting officer testified that at approximately 3:15 p.m. on February 13, 1991, he received information from a confidential informant to the effect that the defendant “would be leaving a place on Athens Highway, going to his residence on Tulip Drive, driving a brown Ford van, [and would then be] leaving his residence to go to a location on Azalea Lane, and would have in his possession of a quantity of cocaine.” The officer stated that he did not know how the informant had obtained his information but that he (the informant) had provided information on two or three previous occasions which had resulted in “two arrests and seizure (sic) of cocaine.”

In response to the informant’s tip, police officers placed Tulip Drive and Azalea Lane under surveillance, and at approximately 3:45 p.m. the defendant was observed pulling onto Tulip Drive driving the described van. He apparently departed the van for approximately 30 minutes to go into his residence, following which he returned to his vehicle and drove to Azalea Lane, where he was immediately stopped and subjected to a search of his person. Although this search did not itself result in the discovery of any weapons or contraband, almost immediately thereafter, while still in detention, the defendant was observed attempting to place his foot over a plastic bag located on the ground beneath him. The bag was seized, and the defendant was placed under arrest when it was determined to contain cocaine. A more thorough search of the defendant’s person was subsequently conducted at police headquarters, resulting in the discovery of a second bag of cocaine between his legs.

In its order granting the motion to suppress, the trial court concluded for the following reasons that the informant’s tip did not establish probable cause to stop the defendant: “Pursuant to Aguilar v. Texas, 378 U. S. 108 (84 SC 1509, 12 LE2d 723) (1964) and Wesley v. State, 162 Ga. App. 737 (293 SE2d 27) (1982), where reliance is made on the statement of an informer, the officer must be able to establish the veracity of the informer or his information and there must be a showing of how or why the informer knew the information. Assuming the first prong has been met in this case, it remains to be established how the information was obtained. The second prong of the test may be established by showing how the information was obtained or by describing the criminal activity in such detail as to eliminate the possibility of the information being based on casual rumor or general reputation. . . . The Court finds that the tip [in this case], even when corroborated by the actions of defendant, was insufficient to constitute probable cause. There was no evidence as to how the information was obtained by the informer, nor was there any evidence of a description of criminal activity. The information provided by the informer was nothing more than the location of defendant. Such information could have been based simply on knowledge of where defendant and his friends lived. Such information, without more, can be considered no more than casual rumor or general reputation.” (Indentation omitted.)

In Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), the United States Supreme Court replaced the “two-pronged” test of Aguilar v. Texas, 378 U. S. 108 (84 SC 1509, 12 LE2d 723) (1964) with a more flexible “totality-of-the-circumstances” test, under which the existence of probable cause is determined by whether, “given all the circumstances . . . , including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a ■particular place.” Illinois v. Gates, supra, 462 U. S. at 238. See Felker v. State, 172 Ga. App. 492, 494 (323 SE2d 817) (1984). Thus, in reaching the conclusion that probable cause did not exist for the defendant’s detention, the trial court applied an unnecessarily strict legal standard. Moreover, probable cause is not, in any event, necessary to justify a brief investigative stop of an automobile. “An individual’s freedom to use public highways is circumscribed by the state’s police power where the officer has specific and articulable facts which warrant a stop of the vehicle to investigate the circumstances which provoke a reasonable and founded suspicion. United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975). ‘(W)hat is a “reasonable articulable ground” for the detention may be less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment. (Cit.)’ [Cit.]” West v. State, 194 Ga. App. 620, 621 (391 SE2d 673) (1990).

The informant in the present case had previously provided information to police which had led to drug arrests and seizures, and the officers had established through their own personal observations of the defendant’s movements the accuracy of the informant’s information regarding his expected itinerary. We note that the informant’s prediction in this regard was not merely that the defendant and/or his vehicle would be at a specific location at a particular point in time (compare Felker v. State, 172 Ga. App. 492 (4), supra; State v. Taylor, 144 Ga. App. 270 (241 SE2d 50) (1977)) but that he would proceed to a specific location after first going to his residence. The informant’s ability to predict this activity certainly did not, in and of itself, suggest that the defendant was engaged in any criminal misconduct; however, it did tend to suggest that the defendant had in fact picked up something at his home in order to take it to the second location. We hold that these circumstances, combined with the informant’s assertion that the defendant would be in possession of cocaine, provided at least a reasonable and articulable basis for a suspicion that he was making a drug delivery and therefore justified a brief investigative detention.

Decided April 24, 1992

Reconsideration denied July 31, 1992

C. Andrew Fuller, District Attorney, Bernard E. Roberts III, William M. Brownell, Jr., Assistant District Attorneys, for appellant.

Thompson, Fox, Jolliff, Chandler & Homans, Joseph A. Ho-mans, for appellee.

The defendant’s reliance upon Salter v. State, 198 Ga. App. 242 (1) (401 SE2d 541) (1990), as authority for a contrary ruling is misplaced. While we held in that case that the circumstances failed to establish probable cause for the defendant’s arrest and the consequent search of his vehicle, there, as here, we determined that the circumstances “gave rise to an articulable suspicion of criminal wrongdoing sufficient to support an investigatory detention.” Id. at 243. Because the limited investigative detention of the defendant which occurred in the present case led directly to the discovery of the contraband, without the necessity for a full scale search of his vehicle, we hold that his Fourth Amendment rights were not violated and that the trial court consequently erred in granting his motion to suppress.

Judgment reversed.

Carley, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A92A0644.
    PRICE et al. v. ROGERS et al.
    (422 SE2d 7)
   Andrews, Judge.

Price, a minor, sued Rogers and Mr. and Mrs. Peterson for injuries suffered by him while riding in a pickup truck with Rogers, also a minor. The trial court granted summary judgment to defendant Rogers and Price appeals.

Viewed with all inferences and reasonable doubts in favor of plaintiff Price, Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981), the evidence was as follows. On the afternoon of June 28, 1988, plaintiff Price, 16 years old, and defendant Rogers, 15 years old, went rafting on the Dog River with a third friend, Strom. After returning from the river trip, during which no alcoholic beverages were consumed, these three young men and several others congregated at the home of Jeff Peterson, whose parents were out of town and who owned the pickup involved in the wreck.

After a game of basketball, Price borrowed Strom’s Dodge pickup truck with Strom’s permission and drove Rogers to a local store where they had another individual who was of legal age, and solicited by them for that purpose, purchase a case of beer. They returned to the Peterson home where five of the boys present engaged in a drinking game called “Quarters.” The game consisted of putting a glass of beer on the table and taking turns trying to bounce a quarter off a hard surface into the glass. If successful, the person bouncing the quarter designated one of the others to consume the glass of beer. If unsuccessful, the bouncer consumed the beer.

It was not disputed that, during this game, which lasted about 45 minutes to an hour, Price and Rogers each drank at least a six pack of beer. Both also smoked marijuana.

After the game was over and the sun had gone down, Price somehow obtained the keys to the Peterson pickup, and he and Rogers set out to visit a friend. During both this trip and the earlier one, Rogers, who had a learner’s permit, kept requesting that he be allowed to drive. Price and Rogers returned to the Peterson residence where Rogers took over the driving and Price sat in the passenger seat. The wreck occurred when'Rogers was unable to negotiate a curve and both boys were injured.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The doctrine of assumption of the risk bars a plaintiff from recovery when he chooses, without restriction, an obviously dangerous course of conduct with full knowledge of that danger. Myers v. Boleman, 151 Ga. App. 506, 509 (3) (260 SE2d 359) (1979). “Questions necessitating a decision as to whether a given state of facts shows that lack of ordinary care for one’s own safety which will bar recovery (within which category are placed those situations amounting to the assumption of the risk involved) or only that comparative negligence which will reduce it are generally for the jury. ‘In this State the doctrine of comparative negligence prevails and it is not all negligence which contributes to an injury that will necessarily prevent a recovery. ... If a driver, from intoxication, is in a condition which renders him incapable of operating (the vehicle) with proper diligence and skill, and this is known or palpably apparent to one entering the car, this is a fact that may be proved for the consideration of the jury.’ Powell v. Berry, 145 Ga. 696, 700 (89 SE 753, LRA 1917A 306) [(1916)].” Stukes v. Trowell, 119 Ga. App. 651, 652 (168 SE2d 616) (1969). See Menendez v. Jewett, 196 Ga. App. 565, 566 (1) (396 SE2d 294) (1990).

Decided July 8, 1992

Reconsideration denied July 31, 1992.

Burge & Wettermark, Michael J. Warshauer, for appellants.

Greer, Klosik & Daugherty, Donald J. Sharp, Hartley, Rowe & Fowler, G. Michael Hartley, Elizabeth A. Geoffroy, for appellee.

“[A] passenger’s knowledge that a driver is intoxicated does not, as a matter of law, impute to the passenger knowledge that the driver is so impaired that he cannot drive safely. For that reason, mere knowledge by a passenger that the driver is intoxicated does not preclude recovery from the driver. [Crudup v. Post Properties, 195 Ga. App. 203], . . . 207 (McMurray, P. J., dissenting); Petroleum Carrier Corp. v. Jones, 127 Ga. App. 676 (2) (194 SE2d 670) (1972).” Jones v. Livingston, 203 Ga. App. 99, 101 (1) (416 SE2d 142) (1992).

Freeman v. Martin, 116 Ga. App. 237 (2) (156 SE2d 511) (1967), and Davis v. Ferrell, 118 Ga. App. 690, 691 (2) (165 SE2d 313) (1968) (citing as authority only Freeman), are relied upon by defendant/appellee Rogers as authority justifying the summary judgment below. As discussed in Stukes, supra at 652, however, anything in Freeman contrary to the Supreme Court holding in Powell v. Berry, 145 Ga. 696, 700 (89 SE 753) (1916) must yield to Powell.

Judgment reversed.

Birdsong, P. J., and Beasley, J., concur.

       The basic premise of Powell, supra, is stated thusly, “[i]t is possible, whether probable or not, for one man to act with the care of a prudent man while intoxicated. . . .” Id. at 699. With respect to the operation of motor vehicles, perhaps it is time for the Supreme Court to re-examine Powell in the light of present public policy.


author: Beasley, Judge. Andrews, Judge,

text:
    A92A0733.
    BLAND v. BULLOCH COUNTY.
    (422 SE2d 223)
   Beasley, Judge.

In this condemnation case, the sole issue is whether the court erred in instructing the jury on how to determine the fair market value of a partial taking. It was a 250’-wide, 15-acre strip at an angle through the middle of condemnee’s 75-acre generally rectangular parcel, taken for a limited access road. Not at issue here is the determination of consequential benefits or consequential damages to the remainder; appellant does not challenge the court’s charge on the calculation of that item of damages.

1. The issue as framed in the first enumeration of error and argued was adequately preserved below. Appellant complains that the particular jury charge was improper and confusing because it restricted the jury to a pro rata valuation of the property taken. At the conclusion of the court’s instructions to the jury, appellant expressed his exceptions, including the following: “We also except to the court’s charging on the take, the charge that they must give consequential damages — I mean give damages, assessing the value of the whole farm, before they can assess damages on that portion for the take. We differ on the Gunnels decision, and I understand that.” Considering the context in which the matter was raised and the reference to the differing views of the meaning of the appellate decision, the ground presented for our review was sufficiently raised and ruled on in the trial court.

2. When instructing the jury about just compensation for the part taken, the court referred to this compensation as “direct damages or damages in money for the take.” It defined fair market value as “the price which property will bring when offered for sale by one who desires but is not under necessity to sell and will sell it and it is bought by another who wishes to buy but is not under a necessity to do so.” It explained that in computing fair market value, not only the present use but also the past and reasonable potential uses of the property being taken should be considered. That included the taken property’s highest and best use, the use “that will bring the best return to the owner.” It also included any increase or decrease in value due to general information that the property was to be condemned for a road.

In further describing how the value of the taken part was to be arrived at, the court gave the contested charge:

“In order to determine total damages in a case of this kind and in this case, you should make every effort to determine the fair market value of the entire tract of property Mr. Bland owned before any of it was taken, and then you should make every effort to determine the fair market value of what was taken, the 15.84 acres, and considering that part that was taken as part of the whole.”

Unobjected-to was the next instruction which is related: “Within a given piece of property, some areas of the property may have greater value than other areas in the same property. . . .”

Thereafter the court instructed the jury how to calculate damages to the remainder, if it found any.

Considering especially the whole context in which the charge at issue was given, the jury could understand that the relationship between the part taken and the whole from which it was taken must be the basis upon which the fair market value of the part taken was calculated.

Neither OCGA § 22-2-63 nor OCGA § 22-2-109, which govern the manner of assessment and set out the factors to be considered in determining compensation, express this relational mode. See also OCGA § 22-2-62.

“ ‘Value’ is a relative term depending on the circumstances of the land involved.” Cobb & Eldridge, Ga. Law of Damages, 3d ed., § 16-6. Thus, evidence which tends to show the value of the land for any particular purpose to which it may legitimately be put is relevant. Id., § 16-14. Obviously, then, the setting of the land is to be taken into account, for that will help determine its highest and best use.

The charge here suffers from the infirmity noted by Judge Carley and adopted by the Supreme Court in Department of Transp. v. Gunnels, 255 Ga. 495, 496 (340 SE2d 12) (1986), “ [i]t appears that employment of the term ‘whole lot’ in the contested charge, which purports to give the measure of damages for the portion actually taken and considered as a part of the whole, is in fact easily confused with a statement of the proper measure of consequential damages to that portion which remains.”

A pro rata method of ascertaining the value of a partial taking is not necessarily proper because the value of the part taken is not dependent on the size of the whole. If, for example, the 15-acre strip was taken from 105 acres (1/7 of the whole) rather than from 75 acres (1/5 of the whole), the pro rata method could result in a lower value simply because of the size of the whole. There was evidence that pro rata value would be greater for smaller tracts of land. The county even pointed out in its opening statement that all the appraisers would say that smaller tracts sell for more money per acre than larger tracts. In other words, selling 15 acres would not necessarily be at the same per-acre price as selling 75 acres. Yet it is only the 15 acres that is being “sold” through condemnation.

In addition, the pro rata method does not accommodate variations in the value of different parts of a tract; a frontage strip may have more value than a back strip, or a pond may have a different value than a hill on the same tract. The pro rata method averages the value of whatever the condemnee happens to own, rather that measuring the value of the taken portion as it is, with its unique characteristics and particular setting. Even if the whole tract is constant and has no varying features upon it, the fair market value of the whole if it were sold (wholesale) may be less than the fair market value of a number of equal pieces sold individually to separate buyers (retail).

The value of the part taken is not automatically measured by the size of the parcel from which it is taken, although the value of the part taken may be derived in part by the nature of the land around it because the setting affects the highest and best use of the taken property.

We find no authority in Georgia for the proposition that the

value of the land taken is a pro rata value of the whole from which it is taken. As to the property taken, the jury is to award “the market value of the property actually taken.” Reed v. City of Atlanta, 136 Ga. App. 193, 195 (5) (220 SE2d 492) (1975). Nichols points out: “In assessing the value of the land taken as part of the entire tract, it is not proper merely to compute the percentage value on the basis of an artificial unit value for the entire tract, unless the actualities of the case accord with such an approach. It may be that the part taken is the most valuable part of the tract, considered from a qualitative point of view. To attribute an average unit value thereto which is based in part on the lower value of the balance of the tract is inequitable to the owner in a double aspect. It attributes a value to the part taken which is lower than its actual value, and it attributes a higher ultimate value to the remainder area than its actual value, thereby reducing his recovery as to both factors below his actual damages.” 4 Nichols’ The Law of Eminent Domain § 14.06, p. 14-146 (Revised 3d ed.).

The charge, which instructed the jury to employ this pro rata method, was erroneous because there was evidence that the highest and best use of the property taken could be achieved as a separate piece rather than as a part of the whole, and thus that it had a greater value as a separate tract than as part of the whole. The court did not allow the jury to calculate it according to condemnee’s theory of its use and value, which would have been authorized by the evidence and the law. This case differs from Rucker v. Dept. of Transp., 188 Ga. App. 283 (372 SE2d 839) (1988), because there the jury was authorized to accept the condemnee’s position that the strip taken should be considered alone. Here, it was not.

Judgment reversed.

Sognier, C. J., Birdsong, P. J., Pope, Cooper and Johnson, JJ., concur. Carley, P. J., and Andrews, J., dissent. McMurray, P. J., not participating.

Andrews, Judge,

dissenting.

Bland appeals on the basis of the giving of the following charge to the jury: “In order to determine total damages in a case of this kind [partial taking] and in this case, you should make every effort to determine the fair market value of the entire tract of property Mr. Bland owned before any of it was taken, and then you should make every effort to determine the fair market value of what was taken, the 15.848 acres, and considering that part that was taken as a part of the whole.”

Decided July 16, 1992

Reconsideration denied July 31, 1992

Edenfield, Stone & Cox, Gerald M. Edenfield, James B. Rutledge III, E. Lee Davis, Jr., for appellant.

Franklin, Taulbee, Rushing & Bunce, James B. Franklin, Barbara N. McKay, for appellee.

The objection voiced after the charge was given was that condemnee excepts “to the Court’s charging on the take, the charge that they must give consequential damages — I mean give damages, assessing the value of the whole farm, before they can assess damages on that portion for the take. We differ on the Gunnels decision, and I understand that.”

1. The first enumeration argues, on the basis of Department of Transp. v. Gunnels, 255 Ga. 495 (340 SE2d 12) (1986), that the charge set out above restricted the jury to a pro rata valuation of the property taken.

Pretermitting the issue of whether the objection now made is the same one made below, I do not believe the charge is subject to the infirmity claimed here. In Gunnels, the deficient charge was that “the measure of damages for the part of the lot actually taken by [DOT] is the difference between the market value of the whole lot just before the taking and the market value of the whole lot immediately after the taking. Now, that’s the measure of damage for the part that was actually taken.” (Emphasis supplied.) The court found this deficient in that it allowed the potential for double recovery of consequential damages to the remainder.

Such is not the case with the charge given here, which is much more similar to that given and approved in light of a Gunnels objection in Rucker v. Dept. of Transp., 188 Ga. App. 283 (372 SE2d 839) (1988). Therefore, I conclude that Rucker controls this issue adversely to condemnee.

2. The charge, considered in light of the charge as a whole, was not error and did not create the confusion argued in the second enumeration. Shennett v. Piggly Wiggly &c., 197 Ga. App. 502, 503 (1) (399 SE2d 476) (1990); cf. Renew v. Edenfield, 200 Ga. App. 484, 486 (3) (408 SE2d 499) (1991).

       Now-Chief Justice Weltner, in his concurring opinion in Dept. of Transp. v. Gunnels, supra, calculated the market value of the property actually taken, “in and of itself and unrelated to the remainder.”


author: Birdsong, Presiding Judge.

text:
    A92A0662.
    DOE v. THE STATE.
    (422 SE2d 558)
    Decided July 31, 1992.

      Cowart & McCullough, Hugh J. McCullough, for appellant.

      Dupont K. Cheney, District Attorney, Charles D. Howard, Assis

      tant District Attorney, for appellee.
   Birdsong, Presiding Judge.

Appellant Thomas Doe, having pled guilty to the sale of cocaine for an offense alleged to have been committed on May 19, 1989, was sentenced to life imprisonment pursuant to OCGA § 16-13-30 (d). That statute mandates the enhanced punishment of life imprisonment “upon conviction of a second of subsequent offense” involving intent to distribute controlled substances. On appeal, Doe argued that although this was his second “conviction,” this offense was not “second” in point of time of occurrence. See Mays v. State, 262 Ga. 90, 91 (414 SE2d 481), which held that “it is not the date of the conviction which determines the applicability of enhanced punishment but the date of the commission of the offense.” However, the record did not support Doe’s contentions for, pursuant to his direction in his notice of appeal, it contained the indictment and sentences pertaining to Tattnall County Indictment No. 89R-140, and it contained no showing in the record of an earlier conviction for an offense which occurred after this one.

Appellant submits a supplementary record certified by the superior court clerk as a true and correct copy of the records of that court. This supplementary record includes Tattnall County Indictment No. 89R-126 alleging sale of cocaine on June 5, 1989, and the conviction and sentence thereon. It is appellant’s burden to designate what shall be included in the record sent up on appeal (see OCGA §§ 5-6-43 (a); 5-6-37), failing which we are not authorized to go outside the record and accept assertions of fact in briefs which are not supported by the record (see Blane v. State, 195 Ga. App. 504 (393 SE2d 759)), nor may we accept as fact what is asserted by way of argument in a transcript. However, in this case, owing to the gravity of the life sentence given to appellant, we will take notice of the certified copies pertaining to Indictment No. 89R-126 which appellant’s counsel submits. It appears from these documents that appellant was in fact previously convicted and sentenced for a sale of cocaine which occurred June 5, 1989, after the instant sale of cocaine occurring on May 19, 1989. The State has not shown otherwise in rebuttal. Therefore, the imposition of the enhanced punishment under OCGA § 16-13-30 (d) was error. See Mays v. State, supra.

Judgment reversed.

Beasley and Andrews, JJ., concur.


author: Cooper, Judge.

text:
    A92A0614.
    A92A1046.
    COLLIER v. SOUTH CAROLINA INSURANCE COMPANY. COLLIER v. BRICE.
    (422 SE2d 52)
   Cooper, Judge.

Appellant, a pro se litigant in two civil actions, appeals orders entered against him in those actions. His appeals have been consolidated by order of this court.

Appellee filed a declaratory action against appellant to determine its obligation to pay appellant no-fault and uninsured motorist benefits as a result of an accident appellant allegedly had with a hit-and-run vehicle in April 1989. Appellee contended that appellant’s application for benefits was false and fraudulent. In support of one of its pleadings in the case, appellee submitted the affidavit of Charles Brice, who stated therein that he owned the car which appellant alleged was involved in the accident and that the car had not been involved in an accident in April 1989 and had not been operated by anyone at any time during 1989. A bench trial resulted in a judgment in favor of appellee. In Case No. A92A0614, appellant appeals that judgment. While the declaratory judgment action was pending, appellant filed a complaint against Brice for allegedly committing perjury in giving the affidavit in the declaratory judgment action. The trial court dismissed that case for failure to state a claim upon which relief can be granted, and in Case No. A92A1046, appellant appeals that order.

Case No. A92A0614

Appellant has failed to comply with numerous rules of this court, including filing an enumeration of errors (Rule 27 (a)), including a succinct and accurate statement of the facts of the case (Rule 15 (a)), and supporting argument with citations to the record (Rule 15 (c)). Notwithstanding the deficiencies in appellant’s presentation, we are willing, because of appellant’s pro se status, to review the merits of appellant’s argument to the extent that we can discern what those arguments are. However, in spite of our leniency, appellant still has the burden of showing error affirmatively by the record. Hendricks v. Emerson, 199 Ga. App. 208 (2) (404 SE2d 279) (1991).

Appellant argues that the trial court erred in denying his motion in limine to exclude evidence of other accidents in which appellant had been involved and the related insurance claims. In response to appellant’s motion, appellee submitted copies of accident reports and insurance claims filed by appellant for five hit-and-run accidents occurring between June 1988 and November 1989. Appellee contended that it was not obligated to pay appellant because appellant’s application for benefits was false and fraudulent. We conclude that the trial court properly denied appellant’s motion in limine since the evidence was relevant to show a scheme of fraudulent conduct by appellant. See Ballard v. Turner, 147 Ga. App. 584 (249 SE2d 637) (1978).

Decided July 28, 1992

Reconsideration denied August 25, 1992

Jerry L. Collier, pro se.

McClain & Merritt, William S. Sutton, for appellee.

Appellant also contends that the judgment entered against him was erroneous. The record reflects that the case was called for trial and that appellant was in the courthouse but refused to appear at the call of the case. The trial judge heard evidence presented by appellee and then entered a judgment against appellant. “ ‘ “A trial judge sitting without a jury is entitled to have his judgment considered as a verdict by a jury, and if there is any evidence to support the finding, it should be affirmed. Also the evidence must be construed most strongly in favor of the prevailing party. (Cit.)” (Cit.)’ [Cit.]” Renshaw v. Feagin, 199 Ga. App. 148, 149 (1) (404 SE2d 457) (1991). The transcript from the trial amply supports the trial court’s finding that appellee was not obligated to pay no-fault or uninsured motorist benefits to appellant. Accordingly, we find no error with the judgment entered by the trial court.

Case No. A92A1046

Appellant contends that the trial court erred in dismissing his action against Brice. The trial court dismissed appellant’s complaint for failure to state a claim upon which relief can be granted and specifically held that perjury is not a claim for which appellant could seek relief in a civil suit. This court has held that no civil cause of action exists for damages for perjury committed in an earlier lawsuit. See Sun v. Bush, 179 Ga. App. 140 (3) (345 SE2d 873) (1986). Brice’s affidavit was given in connection with the declaratory judgment action brought by appellee. Therefore, as part of a prior judicial proceeding, even if it were false it could not be the basis for a civil cause of action.

Judgments affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A91A1285, A91A1286.
    CORIM, INC. v. BELVIN et al.; and vice versa.
    (422 SE2d 676)
    Decided September 8, 1992.

      Geiger & Pierce, James N. Geiger, for appellant.

      Byrd & Anthony, Garland T. Byrd, Walker, Hulbert, Gray & Byrd, David G. Walker, James C. Marshall, for appellees.

      Martin, Snow, Grant & Napier, Edward J. Harrell, amicus curiae.
   Cooper, Judge.

The Supreme Court of Georgia in Crossroads Bank of Ga. v. Corim, Inc., 262 Ga. 364 (418 SE2d 601) (1992), having reversed this Court’s prior judgments in these cases, 202 Ga. App. 396 (414 SE2d 491) (1991), the judgments of this Court are vacated, and the judgments of the trial court are hereby affirmed.

Judgments affirmed.

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


author: Beasley, Judge.

text:
    A92A0775.
    YOUNG v. THE STATE.
    (422 SE2d 227)
   Beasley, Judge.

Appellant was convicted of kidnapping Linda Poss, OCGA § 16-5-40, and committing an aggravated assault upon her by cutting and stabbing her with a knife. OCGA § 16-5-21 (a) (2). He was given consecutive 20-year sentences.

Appellant and the victim had been involved in a romantic relationship and had lived together. Their relationship ended, and the victim had become romantically involved with Reno Jones. Appellant appeared at the victim’s house and threatened to kick the door down if she did not open it. She complied, whereupon he pulled her out of the house and down the street. Jones was in the victim’s house at this time, but he left soon afterwards. After dragging the victim down the street, appellant hit her with a piece of iron and threatened to kill her. He then dragged her back to her house and left her after she gave him food stamps.

He later returned and again dragged her down the street, beat her, and threatened to kill her. He dragged her back and remained at her house throughout the night. He continued to hit her, and he threw a knife at her, which hit her defensively raised arm. The following morning she ran next door and called the police, who arrested appellant. As they put him in the car, he threatened her.

On the day appellant was released, he returned to the victim’s house, but she ran to a neighbor’s and called the police. They came and could not find appellant, who returned after they left. He saw the victim at the neighbor’s house and yelled to her that “you can run, but you can’t hide. He said I am going to get you, bitch. I am going to get you. Last thing I do, I am going to get you.” Appellant continued to walk by the neighbor’s house and threaten the victim.

She returned home and later that evening appellant also returned. She fled but encountered him on the street. He chased her, grabbed her, stabbed her in the back with a knife, and told her to die. The knife penetrated her kidney and intestines. She fell forward, and he stabbed her in the head. She began kicking, and he stabbed her leg. He stuck the knife in her thigh. As he was coming down with the knife again, she grabbed it but he took it back. He straddled her and began to stab her again but was shot by Reno Jones. Appellant got off the victim and she ran.

Jones testified that he could see appellant and the victim struggling while he sat on his porch. He ran to her assistance. Appellant had a pistol in his back pocket. Jones grabbed it and shot appellant in the thigh. Appellant attempted to strike Jones with the knife, and Jones shot him again.

1. Appellant contends that the trial court erred in admitting a knife in evidence, because there was an insufficient showing that it was the knife used to stab the victim.

Jones testified that he got a very good look at the knife because appellant had threatened him with it at point blank range before he shot him; the knife used by appellant had a distinct handle and the shape of the blade was distinct; and the knife admitted in evidence had these features. The physician who treated the victim’s wounds testified that stab wounds, which had penetrated far through her back, required a knife with a long blade such as the one admitted in evidence.

“Under these facts, the trial court properly admitted the knife into evidence. As long as the state presents sufficient evidence from which a rational trier of fact could conclude that the [assault] was committed with the use of a knife, it makes no material difference whether the knife actually admitted into evidence was the one actually used or was only similar to the knife used by the defendant. [Cit.] The evidence was sufficient to authorize the jury to find that the knife admitted into evidence was the weapon used by appellant. [Cit.]” Carswell v. State, 163 Ga. App. 743, 744-745 (2) (295 SE2d 548) (1982).

2. Appellant contends that the trial court erred in denying his motion for mistrial after the victim on three occasions during her testimony began crying uncontrollably, necessitating breaks in the proceedings.

The court denied the motion, noting that although the victim had become emotional at times, these episodes in their entirety were not of such a consequence that it would deprive appellant of his right to a fair trial. We find no abuse of discretion. See, e.g., Middlebrooks v. State, 156 Ga. App. 319, 320 (2) (274 SE2d 643) (1980).

Appellant complains that the court did not give curative instructions to the jury to the effect that its decision should not be based on sympathy, etc. Appellant did not request any such instructions. It is only where the accused would be denied a fair trial in the absence of corrective instructions that such must be given even in the absence of a request or a mistrial declared. See Middlebrooks, supra; Hamilton v. State, 155 Ga. App. 799 (2) (272 SE2d 763) (1980). That is not what transpired here.

3. Finally, appellant contends he was entitled to a directed verdict of acquittal on the kidnapping charge, because the victim failed to cry out to people in her house and in the neighborhood; and, given the fact that she had not testified truthfully (as to whether Jones had been in her house, as to whether he had shot appellant, and as to the number of children she has) her credibility was such that a rational trier of fact could not have concluded beyond a reasonable doubt that she did not go voluntarily based upon her testimony to that effect.

Decided September 8, 1992.

J. Robert Joiner, for appellant.

Lewis R. Slaton, District Attorney, Charles W. Smegal, Carl P. Greenberg, Assistant District Attorneys, for appellee.

Under the totality of the circumstances, the evidence was sufficient to have authorized any rational trier of fact to find beyond a reasonable doubt that appellant abducted the victim without lawful authority or warrant and held her against her will. QCG-A § 16-5-40 (a). The test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) is met.

Judgment affirmed.

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


text:
    A92A0779.
    FREEMAN v. THE STATE.
    (422 SE2d 229)
   Cooper, Judge.

Appellant was convicted of cruelty to children and the rape and aggravated child molestation of his 11-year-old daughter and appeals the trial court’s denial of his motion for new trial. In his sole enumeration of error, appellant argues that the trial court erred in denying his motions for mistrial which were asserted after witnesses for the prosecution testified regarding similar transactions.

Appellant was indicted, in part, for inflicting excessive physical pain on the victim by whipping her with an extension cord. At trial, one of the victim’s teachers recounted her first discussion with the victim regarding her father’s alleged abuse. The teacher asked the victim to repeat her story for a second teacher. The prosecutor asked the victim’s teacher, “once [the second teacher] arrived did you have any further discussion with [the victim] about it?” The teacher replied, “Yes. The two of us talked with [the victim], and I asked [the victim] to repeat what she had told me to [the second teacher]; and she did. And I asked her what they punished her with, and she said switches, their hands, and extension cords.” The trial court denied appellant’s motion for mistrial on the grounds that the testimony constituted evidence of similar transactions not alleged in the indictment and that the State failed to notify appellant of its intention to introduce such testimony. However, the court gave curative instructions to the jury to disregard any statement regarding switches and to give it no consideration. The court then polled the jury to determine whether the jury could follow the court’s instructions, and the jury unanimously indicated it could.

The indictment accused appellant of committing one specific act of rape, cruelty to children and aggravated child molestation between certain dates. Later in the trial, a police officer who met with the victim was asked what the victim told him about physical and sexual abuse. The officer answered, “We spoke at length about it. Among some of the several things that she said, she said that her father had been sexually abusing her and physically abusing her since she was age nine.” The trial court again denied appellant’s motion for mistrial and gave curative instructions to the jury to disregard the question and the answer and to “wipe it out of your minds as if it had never occurred.” The jury was polled and the motion was renewed. Ruling on the motion, the trial court agreed with appellant that the testimony erroneously injected other incidents into the case but ultimately concluded that the prosecutor did not intentionally elicit the testimony and that the error was not fatal. On appeal, appellant argues that the testimony regarding switches and long-term sexual abuse unduly prejudiced the jury and that the cumulative effect of the evidence abridged his right to a fair trial.

Decided September 8, 1992.

Richard L. Dickson, Russell C. Gabriel, for appellant.

Harry N. Gordon, District Attorney, for appellee.

“Where a witness voluntarily injects into the trial improper and prejudicial matters, whether a mistrial must be granted or whether the effect can be corrected by instructions to the jury is a matter within the discretion of the trial court. [Cit.] ‘The trial court’s ruling will not be disturbed on appeal absent an abuse of discretion, which does not exist if the curative instructions given can serve to prevent the alleged harmful testimony from having any prejudicial impact. . . .’ [Cit.] In this case we conclude the curative instructions were sufficient to prevent the testimony from having a prejudicial impact and, therefore, the trial court did not err in denying [appellant’s] motions for mistrial.” Hicks v. State, 196 Ga. App. 25, 26 (2) (395 SE2d 249) (1990).

Judgment affirmed.

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


author: Carley, Presiding Judge.

text:
    A92A0789.
    THOMAS v. THE STATE.
    (422 SE2d 54)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of armed robbery. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

Decided September 8, 1992.

Lillian L. Neal, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

1. When viewed in the light most favorable to the verdict, the evidence shows the following: Appellant was identified as the man who held a gun to the victim’s head and ordered an accomplice to search the victim’s pockets. The accomplice, who was known to the victim, took $170, and the pair fled. A rational trier of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Thompson v. State, 187 Ga. App. 552, 553 (1) (370 SE2d 814) (1988). Accordingly, appellant’s enumeration of the general grounds is without merit.

2. Having been tried separately and convicted, appellant’s accomplice was called as a State’s witness. Despite his previous conviction and the grant of immunity, the accomplice persisted in invoking the Fifth Amendment. Over appellant’s objection, the State was allowed to ask leading questions concerning the testimony given by the accomplice at his trial, which testimony was inculpatory of appellant. After the accomplice refused to answer the State’s leading questions, he was subjected to a thorough and sifting cross-examination by appellant’s counsel. On cross-examination, the accomplice was more forthcoming, clearly intimating that his prior inculpation of appellant had been at the behest of the investigating officers and that someone other than appellant had committed the crime.

Relying upon Lingerfelt v. State, 235 Ga. 139 (218 SE2d 752) (1975), appellant urges that the trial court erred in allowing the State to ask the leading questions on direct examination of the accomplice. However, Lingerfelt is distinguishable and Cates v. State, 245 Ga. 30, 32 (1) (262 SE2d 796) (1980) controls this issue adversely to appellant’s contentions. See also Hawkins v. State, 175 Ga. App. 606, 609 (2) (333 SE2d 870) (1985). Unlike Lingerfelt, appellant was certainly not denied the right to confront the accomplice. As in Cates, it was the direct testimony of the accomplice that was discredited.

3. After the accomplice gave his exculpatory testimony, the State proffered his custodial statement, which was inculpatory of appellant. There was no error in the admission of the accomplice’s statement. See Burrell v. State, 258 Ga. 841, 843 (5) (376 SE2d 184) (1989).

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A0790.
    DANIEL v. WELLS OIL COMPANY, INC.
    (422 SE2d 55)
   Carley, Presiding Judge.

Appellee-plaintiff applied for a distress warrant pursuant to OCGA § 44-7-71. The summons that was served on appellant-defendant pursuant to OCGA § 44-7-72 required that he appear at a hearing scheduled for June 21, 1991. However, the hearing was postponed and rescheduled on several occasions and was eventually set for November 25, 1991. On November 20, 1991, appellant filed his answer. At the subsequent hearing, appellee made an oral motion to strike appellant’s answer as untimely. The trial court granted appellee’s motion and entered default judgment ^against appellant in an amount greater than the $2,500 jurisdictional threshold of OCGA § 5-6-35 (a) (3). Accordingly, appellant appeals directly from the order of the trial court.

In dispossessory proceedings, the summons served on the tenant shall require him “to answer either orally or in writing within seven days from the date of the actual service. . . .” OCGA § 44-7-51 (b). In distress warrant proceedings, however, the tenant is not similarly required to answer within a specified time after actual service of the summons. OCGA § 44-7-72 provides only that the summons served on the tenant shall require him “to appear at a hearing on a day certain not less than five nor more than seven days from the date of actual service.” Insofar as the answer in distress warrant proceedings is concerned, the tenant may answer in writing “[a]t or before the time of the hearing” or he may answer orally “at the time of the hearing.” OCGA § 44-7-74 (a).

Thus, regardless of the time of the hearing, the answer of a tenant in dispossessory proceedings is untimely if it is not filed within seven days of the actual service of the summons. However, the answer of a tenant in distress warrant proceedings is timely if it is filed either before or at the time of the hearing. Accordingly, in the instant distress warrant proceedings, appellant was not required to file his answer within any specified time after service of the summons. He was required only to answer before or at the time of the hearing. The original hearing was scheduled for June 21, 1991, but it was postponed and rescheduled for November 25, 1991. Appellant answered before the time of the rescheduled hearing. It follows that the trial court erred in striking appellant’s timely answer and in entering default judgment. In distress warrant proceedings, the trial court is authorized to enter default judgment “[i]f the tenant fails to answer. . . .” OCGA § 44-7-74 (b). Appellant did not fail to answer, because his answer preceded the hearing and was, therefore, timely.

Decided September 8, 1992.

Vincent M. Davison, Jr., for appellant.

Burnside, Wall & Daniel, Thomas R. Burnside III, for appellee.

Judgment reversed.

Pope and Johnson, JJ., concur.


text:
    A92A0804.
    COLE et al. v. COLE.
    (422 SE2d 230)
   Carley, Presiding Judge.

Mr. Harold Cole died intestate. He was survived by appellee Mrs. Audrey Cole, his second wife, and by appellants, the children of his first marriage. Relying upon the statutory presumption of a gift between spouses, the probate court found that the decedent had a one-half interest in the marital home. See OCGA § 53-12-92 (c). On appeal to the superior court, a jury found that the marital home belonged entirely to appellee pursuant to a purchase money resulting trust. See OCGA § 53-12-92 (a). Appellants appeal from the judgment entered on the jury’s verdict.

1. “ ‘It is the duty of this court on its own motion to inquire into its jurisdiction.’ [Cit.]” Anthony v. Anthony, 120 Ga. App. 261, 264 (2) (170 SE2d 273) (1969). Accordingly, the first issue for resolution is whether the instant appeal is within the jurisdiction of the Supreme Court, as a case “involving title to land.” Art. VI, Sec. VI, Par. Ill (1) of the Ga. Const. of 1983.

Cases involving “ ‘title to land,’ as that term is used in the Constitution for the purpose of defining the jurisdiction of [the Supreme] [C]ourt, refer to and mean actions at law, such as ejectment and statutory substitutes, in which the plaintiff asserts a presently enforceable legal title against the possession of the defendant for the purpose of recovering the land. [Cits.]” Bond v. Ray, 207 Ga. 559, 561 (a) (63 SE2d 399) (1951). Appellee does not seek possession of the land on which is situated the home occupied by her deceased husband and herself. She is in possession and seeks only a determination that her deceased husband had no interest in that property. Appellants do not seek possession of the land, but seek only a determination that their deceased father had a one-half interest therein. Accordingly, the instant case is not within the jurisdiction of the Supreme Court, because it “is not one at law for the recovery of land, either in ejectment or any of its substitutes.” Bond v. Ray, supra at 562 (a).

2. Without objection, appellee testified that, after the marriage, she had sold her own home and, with no contribution from the decedent, used the proceeds to purchase a new home. Title was conveyed to appellee and the decedent jointly without any right of survivorship. Over a hearsay objection, appellee was further allowed to testify that the decedent had told her that he would be unable to contribute toward the purchase of the property until such time as he was no longer obligated to pay child support for appellants. On appeal, the trial court’s failure to sustain the hearsay objection to this testimony is the sole enumeration of error.

Decided September 8, 1992.

J. Robert Morgan, for appellants.

Michael B. Perry, for appellee.

“Declarations . . . made by a person since deceased against his interest and not made with a view to pending litigation shall be admissible in evidence in any case.” OCGA § 24-3-8. However, “ ‘[declarations of a person since deceased, wholly in favor of the interest of the declarant, and which are not a part of the res gestae, are mere hearsay and not admissible in evidence.’ [Cit.]” Higgins v. Trentham, 186 Ga. 264 (1) (197 SE 862) (1938). Appellants urge that appellee’s testimony would not be admissible pursuant to OCGA § 24-3-8, but would be excludable as hearsay because the statement attributed to the decedent was wholly in favor of appellee’s interest.

A decedent’s declarations in disparagement of his title would be admissible pursuant to OCGA § 24-3-8, as they negate the existence of a gift and are, therefore, against the decedent’s pecuniary interest. Wiley v. Luke, 259 Ga. 861, 862 (1b) (389 SE2d 223) (1990); Freeman v. Saxton, 240 Ga. 309, 311 (1) (240 SE2d 708) (1977). That such declarations are proffered by one who would benefit from their admission into evidence is not a valid ground for excluding them from the jury’s consideration. Swain v. C & S Bank of Albany, 258 Ga. 547, 550 (1) (372 SE2d 423) (1988). Accordingly, appellee’s testimony in the instant case was admissible under OCGA § 24-3-8, in rebuttal of the presumption arising under OCGA § 53-12-92 (c) that she had made a gift to him of a one-half interest in the real property and the improvements thereon.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A0807.
    GATES v. THE STATE.
    (422 SE2d 232)
   Johnson, Judge.

Larry Gates was convicted by a jury of child molestation, statutory rape and rape. He appeals from his conviction and the denial of his motion for new trial.

1. Gates argues that there was insufficient evidence at trial to support the jury’s verdict. We disagree.

An eyewitness to the incident testified at trial that he saw Gates, known in the neighborhood as Shorty Fat, lying on top of six-year-old Cassandra Mayes on a playground at the East Lake Meadows housing project. He testified further that Gates’ clothing was halfway down and that when Gates saw the witness, he got off the girl, pulled up his clothes and ran. The State also introduced the hospital records and testimony of the pediatrician who examined the victim following the incident. The pediatrician testified that the child’s condition could only have been caused by a sexual assault. The victim identified Gates as the assailant both in photo lineups and at trial, as well as testifying at the trial regarding the incident. Reviewing the evidence in the light most favorable to the jury’s verdict, we find that a rational trier of fact could have found Gates guilty beyond a reasonable doubt of all the charges. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Gates argues that the trial court erred in denying his motion for a mistrial on the basis that a state’s witness improperly placed his character in issue. Police investigator Green testified that the victim identified Gates from a photographic lineup. In explaining how photographic lineups are prepared, Green testified that the photographs were of people who had been arrested. Following objection, a curative instruction was given to the jury. Gates bases his argument on Roundtree v. State, 181 Ga. App. 594 (353 SE2d 88) (1987) which relied on the special concurrence in Clark v. State, 249 Ga. 18 (287 SE2d 523) (1982). In both Roundtree and Clark, captions appeared on the photographs revealing that the photographs were taken prior to the date of the current offense, thereby indicating a prior arrest and putting the defendant’s character in issue. In the instant case, there were no captions on the photographs and Green’s testimony did not necessarily imply that Gates had a prior arrest. This case is therefore controlled by Holloway v. State, 190 Ga. App. 528 (379 SE2d 542) (1989). “Since there was nothing on this photograph to indicate that it was made on a prior occasion ... we find no undue prejudice to appellant in its admission and, consequently, no error.” Id. at 529.

3. In his third enumeration of error, Gates asserts that the trial court erred in denying his motion for a new trial in that evidence discovered after the trial may reveal that certain elements of the eyewitness’ testimony were false. The state’s witness testified that he had gone to school with another witness to the crime. Gates argues that this statement could not be verified in a search of school records following the trial. Two of the prongs of the six-part test established for granting a new trial based on newly discovered evidence are: 1) that the newly discovered evidence is so material that it would probably produce a different verdict; and 2) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. See Croy v. State, 195 Ga. App. 500, 501 (393 SE2d 756) (1990). Whether or not a second eyewitness to the crime actually attended school with the witness does not touch any of the essential elements of the crime about which the witness testified. The only purpose for which this new information could be used would be to undermine the credibility of the witness. As such it clearly would not satisfy the requirements for a new trial.

Decided September 8, 1992.

James Archie, for appellant.

Robert E. Wilson, District Attorney, J. George Guise, Robert E. Statham III, Anne G. Maseth, Assistant District Attorneys, for appellee.

Similarly Gates argues that the witness testified that he gave the second witness’ real name to the police during the investigation, while the police investigator testified that they only knew the nickname of the second witness. This inconsistency goes only to the credibility of the witness, a province expressly reserved to the jury. Lucas v. State, 192 Ga. App. 231 (1) (384 SE2d 438) (1989).

4. Finally, Gates asserts that the trial court erred in the denial of a new trial on the grounds that prosecutorial misconduct was used to subvert the protections afforded by the rule of sequestration. During her testimony, Cassandra, who was seven years old at the time of the trial, was unable to identify Gates. A review of the transcript indicates that immediately after Cassandra’s testimony, a lunch recess was held. Prior to the resumption of the trial, Cassandra was sitting at the back of the courtroom with her mother. After seeing Gates walk into the courtroom Cassandra returned to the stand and indicated that she recognized Gates as the man who threw her down in the playground.

There is no evidence in the record that the state aided or abetted in violating the sequestration rule. Even if the sequestration rule had been violated, “[T]he Supreme Court has held that ‘a witness who has violated the rule of sequestration in a criminal case shall not be prevented from testifying. (Cits.)’ [Cit.]” Weathers v. State, 202 Ga. App. 849, 850 (415 SE2d 690) (1992). Violation of the sequestration rule would go to the issue of credibility and not admissibility of the testimony of the witness. O’Kelley v. State, 175 Ga. App. 503, 505 (1) (333 SE2d 838) (1985). Therefore the trial court correctly denied the motion for a mistrial.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0813.
    WESTER v. THE STATE.
    (422 SE2d 433)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of armed robbery. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

Appellant filed a pre-trial motion pursuant to OCGA § 17-7-211. In compliance therewith, the State provided appellant with a copy of the written report of its expert fingerprint witness. Compare Wester v. State, 260 Ga. 228 (391 SE2d 765) (1990). However, the State did not provide appellant with a copy of the written report of the officer who had actually lifted the fingerprint. The expert’s written report referred to the officer’s written report. On appeal, appellant urges that the trial court erred in allowing both the expert and the officer to testify, because of the State’s failure to provide him with a copy of the latter’s written report.

OCGA § 17-7-211 applies to “written scientific reports,” which “includes, but is not limited to, reports from the Division of Forensic Sciences of the Georgia Bureau of Investigation; autopsy report by the coroner of a county or by a private pathologist; blood alcohol test results done by a law enforcement agency or a private physician; and similar type reports that would be used as scientific evidence by the prosecution in its case-in-chief or in rebuttal against the defendant.” OCGA § 17-7-211 (a). “ ‘It is a well-recognized rule of construction that when a statute or document enumerates by name several particular things, and concludes with a general term of enlargement, this latter term is to be construed as being ejusdem generis with the things specifically named, unless, of course, there is something to show that a wider sense was intended.’ [Cits.] Examining § 17-7-211 ([cit.]), it is clear that the reports enumerated in subsection (a) are tests. . . .” (Emphasis supplied.) State v. Mulkey, 252 Ga. 201, 203 (2) (312 SE2d 601) (1984). “Ordinarily the papers generated in the course of the scientific investigation or examination will not be introduced. . . . They do not inculpate defendant. What will be introduced is the end result, the incriminating conclusion. Thus, interim papers are not discoverable, for they are merely internal documents of the examining agency and [/or] products of the examiner’s work as it is being undertaken. [Cits.]” (Emphasis supplied.) Thompson v. State, 175 Ga. App. 645, 649 (4) (334 SE2d 312) (1985). “We thus conclude that the [report of the officer who lifted the fingerprint] was not a ‘scientific report’ discoverable under OCGA § 17-7-211. [Cits.]” Griffin v. State, 183 Ga. App. 386, 387 (1) (358 SE2d 917) (1987).

Decided September 8, 1992.

Howard J. Stiller, for appellant.

Britt R. Priddy, District Attorney, L. Earl Jones, Assistant District Attorney, for appellee.

Therefore, the trial court did not err in allowing the officer to testify that a latent print had been lifted or in allowing the expert to testify that, in his opinion, that print had been made by appellant. The officer’s report merely memorialized his act of lifting the fingerprint and was in no way inculpatory of appellant. The inculpatory testimony was that which was given by the expert and appellant had been provided with a copy of his report.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A0842.
    EDGAR v. SHAVE et al.
    (422 SE2d 234)
   Beasley, Judge.

Appellees petitioned to adopt appellant’s two grandsons. Appellant moved to intervene to object and to obtain visitation rights. She appeals from a final order of adoption in favor of appellees in which the court denied her motions. Jurisdiction of this direct appeal is proper under Moore v. Butler, 192 Ga. App. 882 (1) (386 SE2d 678) (1989).

Appellant, the maternal grandmother petitioned the juvenile court and alleged that the children, then one and two years old, were deprived. The biological mother was experiencing severe financial hardship and consented to the petition. A hearing was held in the juvenile court on March 14, 1990.

During the pendency of the juvenile court proceedings, the biological mother decided it would be in the best interest of the children to allow their adoption. An adoptive couple was located. On September 12, the mother executed in favor of appellees, who are not blood relatives, a “surrender of rights — final release for adoption,” OCGA §§ 19-8-4 (a) (1) and 19-8-26 (a), an “acknowledgment of surrender of parental rights,” OCGA §§ 19-8-4 (f) and 19-8-26 (g), and a “mother’s affidavit regarding putative father,” OCGA § 19-8-26 (h).

By order of October 23, the juvenile court found the children to be deprived due to their mother’s inability to provide them with proper care and their father’s incarceration. They were placed in appellant’s temporary custody for a period not to exceed 18 months.

On June 20, 1991, appellees petitioned the superior court for adoption. The mother objected at this time and moved to revoke her surrender of parental rights. Appellant moved to intervene, to dismiss and to obtain visitation rights. An evidentiary hearing was held, and the superior court ordered the adoption, having concluded that appellant lacked standing to intervene in the proceedings. The court denied the mother’s motion to revoke, finding that her surrender of rights was freely and voluntarily executed without undue pressure or influence. The father voluntarily surrendered his rights and consented to the adoption. Both biological parents’ rights were terminated.

1. Appellant contends that the superior court lacked jurisdiction to entertain the adoption petition because of the pendency of the deprivation proceedings in the juvenile court.

OCGA § 19-8-2 (a) confers on the superior courts “exclusive jurisdiction in all matters of adoption, except such jurisdiction as may be granted to the juvenile courts.” Juvenile court jurisdiction, which is governed by OCGA § 15-11-5, does not specify adoption.

The juvenile court had exclusive original jurisdiction over the deprivation proceedings, OCGA § 15-11-5 (a) (1) (C), and it had the authority to order disposition best suited to the needs of the children, OCGA § 15-11-34 (a) (2) (A). The deprivation proceeding in the juvenile court did not carry with it jurisdiction to consider the adoption matter. “Exclusive jurisdiction of adoption proceedings is vested in the superior courts.” McCall v. VanPopering, 124 Ga. App. 149, 150 (1) (183 SE2d 411) (1971). See also Spires v. Bittick, 171 Ga. App. 914 (1) (321 SE2d 407) (1984). Compare West v. Cobb County DFACS, 243 Ga. 425 (254 SE2d 373) (1979) (habeas corpus was not an available remedy to obtain custody in the superior court while a deprivation order of the juvenile court was in effect); Brooks v. Leyva, 147 Ga. App. 616, n. 1 (249 SE2d 628) (1978) (“adoption proceedings . . . not relevant here”).

2. Relying on OCGA § 19-8-5 (a), appellant contends it was necessary to obtain her written surrender of rights because, as temporary legal custodian under the juvenile court deprivation order, she was in effect their guardian when the petition was filed.

OCGA § 19-8-5 (a) provides: “[A] child who has any living parent or guardian may be adopted by a third party who is neither the stepparent nor relative of that child . . . only if each such living parent and each such guardian has voluntarily and in writing surrendered all of his rights to the child to that third person for the purpose of enabling that person to adopt the child.” “Guardian,” as defined by OCGA § 19-8-1 (5), “means a legal guardian of the person of the child.”

Appellant’s status was that of temporary custodian. “Custodian” is defined in the Juvenile Court Code as “a person, other than a parent or legal guardian, who stands in loco parentis to the child or a person to whom legal custody of the child has been given by order of a court. . . .” OCGA § 15-11-2 (5). A surrender of rights by appellant was not required under OCGA § 19-8-5 (a).

Decided September 8, 1992.

Phyllis Miller, for appellant.

Jerrold W. Hester, for appellees.

3. Enumerations of error 3, 4 and 5 present new issues not asserted in the trial court and are not considered for the first time on appeal. Woods v. Atlanta Leasing Corp., 201 Ga. App. 844, 845 (2) (412 SE2d 607) (1991).

4. Appellant’s remaining enumerations of error address substantive objections to the final order of adoption. However, as in Murphy v. McCarthy, 201 Ga. App. 101, 102 (410 SE2d 198) (1991), neither OCGA § 19-7-3 nor OCGA § 19-8-15 confers standing on appellant to intervene in the adoption proceedings.

Judgment affirmed.

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


text:
    A92A0855.
    A92A0856.
    SMITH et al. v. MYRICK. SMITH et al. v. WEATHERSPOON.
    (422 SE2d 236)
   Carley, Presiding Judge.

Appellant-defendants Mr. and Mrs. Frederick 'Smith jointly own a duplex which was leased to appellee-plaintiffs. Each appellee brought a separate suit against both appellants, seeking to recover for the loss of personal property which occurred when Mr. Smith allegedly removed the outer doors of the duplex and thereby exposed appellees’ personal property to pilferage. The cases were consolidated for trial before a jury, and verdicts for compensatory and punitive damages were returned in favor of each appellee against both appellants. The trial court entered judgments on the jury’s verdicts, and appellants appeal.

1. The general grounds are enumerated as to the judgments against Mrs. Smith.

According to Mrs. Smith’s testimony, the duplex property is her own and she had arranged for Mr. Smith to hold an individual one-half for purposes of survivorship only. She would rely upon him to collect the rent and do handiwork on the duplex. Moreover, she wanted appellees to vacate the duplex and directed Mr. Smith to bring dispossessory proceedings against each appellee. Dispossessory proceedings were brought, but were subsequently dismissed for want of prosecution. According to an eyewitness, Mr. Smith went to the duplex to determine whether appellees had moved out. No one was home, but it was apparent appellees had not left. Mr. Smith then had the doors removed and said “maybe if I take the doors down [appellees] will just go away.” There is no evidence that Mrs. Smith expressly directed Mr. Smith to remove the doors.

“The marital relationship alone will not . . . support an action against a [wife] for the tort of [her husband] in the absence of facts showing an agency relationship.” Shelton v. Doster, 99 Ga. App. 863, 864 (4) (109 SE2d 862) (1959). The evidence adduced at the trial of the instant case was sufficient to establish such an agency relationship, whereby Mr. Smith would collect rent, make repairs and dispossess tenants on behalf of Mrs. Smith. See Whiddon v. Dixon, 199 Ga. App. 644, 645 (3) (405 SE2d 710) (1991). Accordingly, “if [Mr. Smith’s] wrongful acts were in the prosecution of [his wife’s] business and within the scope of [his agency], then [she] is liable for such tortious conduct” on his part. Prince v. Brickell, 87 Ga. App. 697, 700 (2) (75 SE2d 288) (1953).

“The law provides that ‘ “(t)he master is liable for the wilful torts of his servant acting in the prosecution and within the scope of the master’s business, and this is true even though the servant, at the time of the commission of such tort may evidence anger, malice, or ill will.” (Cits.)’ . . . [Cit.] While this legal principle may be simply stated, its application has proven to be problematic. It has been recognized that the cases involving the issue of an employer’s vicarious liability for the wilful torts of his employees, ‘can only be reconciled by an approach which directs its inquiry, not to authority to commit the tort but to authority to accomplish a purpose in pursuance of which a wilful tort is committed.’ [Cit.] Thus, the test of liability is whether the tort ‘ “ ‘was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment.’ ” (Cits.) If a servant steps aside from his master’s business to do an act entirely disconnected from it, and injury to another results from a doing of the act, the servant may be liable, but the master is not liable. (Cit.). . . . Where the tort of the employee is wholly personal to himself, it is not within the scope of his employment, and the master is not liable. (Cit.)’ [Cit.]” Effort Enterprises v. Crosta, 194 Ga. App. 666, 668 (2) (391 SE2d 477) (1990).

“In the instant case it can not be said, as a matter of law, that [Mr. Smith] was acting wholly without the scope of his [agency] and doing an act entirely disconnected therewith, in his efforts to [remove the doors]. The fact that [Mrs. Smith] had not instructed or authorized [Mr. Smith] to pursue an improper course in the [management of the rental property], or to commit a tort, would not necessarily prevent a recovery from [Mrs. Smith]. . . . The true question is, was [Mr. Smith], at the time he . . . acted in the above manner . . . , acting [merely] in his individual capacity, or as [an agent] of [Mrs. Smith]. [Cits.]” Atlanta Hub Co. v. Jones, 47 Ga. App. 778, 779 (3) (171 SE 470) (1933). It is of course perfectly legal for a lessor to attempt to regain possession of rented premises in the method prescribed by law. Sanders v. Brown, 178 Ga. App. 447, 448 (1) (343 SE2d 722) (1986). If, however, an agent of the lessor who is authorized to attempt to regain possession resorts to a method which is not prescribed by law, and commits an “illegal entry, or other like tort, this would not take the act of the [agent] outside the scope of his [agency] so as to relieve the [lessor] in an action against it for damages resulting therefrom. [Cit.]” Garner v. Mears, 97 Ga. App. 506, 513 (4) (103 SE2d 610) (1958).

Decided September 8, 1992.

Davis & Sissel, Kenneth M. Sissel, for appellants.

Fain, Major & Wiley, Gary W. Powell, for appellees.

“The evidence of record established an issue of fact whether [Mr. Smith] had acted outside the scope of [his agency] or whether [he] had merely carried out [Mrs. Smith’s] business, although perhaps overzealously. . . . [Cit.]” Odom v. Hubeny, Inc., 179 Ga. App. 250, 251-252 (1) (345 SE2d 886) (1986). Compare Ford Motor Co. v. Williams, 219 Ga. 505 (134 SE2d 32) (1963); Lee v. Nelms, 57 Ga. 254 (2) (1876). It follows that the trial court did not err in entering judgment against Mrs. Smith, as well as Mr. Smith.

2. All of the remaining enumerations address the trial court’s jury charges. However, in response to a post-charge inquiry by the trial court, appellants stated that they had no exceptions. Accordingly, appellants have waived any objections to the jury charge. Bell v. Samaritano, 196 Ga. App. 612 (2) (396 SE2d 520) (1990), aff’d 260 Ga. 768 (400 SE2d 13) (1991); Bruno v. Evans, 200 Ga. App. 437, 441 (4) (408 SE2d 458) (1991).

Judgments affirmed.

Pope and Johnson, JJ., concur.


author: Pope, Judge.

text:
    A92A0863.
    COLLINS v. THE STATE.
    (422 SE2d 56)
   Pope, Judge.

The defendant, Zachary S. Collins, was tried by a jury and convicted of unlawful distribution of cocaine. On appeal he asserts the trial court erred in denying his motion for directed verdict and that evidence of a similar transaction was improperly admitted.

The State presented evidence showing that J. L. Stevens, an undercover narcotics investigator for the Duluth Police Department, was driving in the vicinity of the Mount Carmel Baptist Church when defendant’s brother, Danny Collins, walked in front of his pick-up truck and asked Stevens “what he wanted and how much.” Stevens told him he wanted “two rocks,” and Collins went into an adjacent yard where some other men were standing. After speaking to them he came back and told Stevens they did not have any rocks but to drive around the block and go to the church. Stevens circled the area a couple of times. The first time he passed the church defendant yelled at him, but he went by. When he came back defendant tried to flag him down. Stevens sped up because he knew the defendant from previous encounters and did not want to be recognized. He then parked in the church parking lot just barely off the street and began watching Danny Collins through his binoculars as he talked to a group of people in another yard.

When Stevens saw Collins walking toward him, he started to leave the parking lot but Collins motioned to him to stay where he was. Collins walked past Stevens and began talking with defendant in a well-lit spot under a street lamp approximately 25 yards away. Watching through the binoculars Stevens saw the defendant pull what appeared to be plastic bags out of one of his pockets and hand one to Collins, who then turned and walked straight over to Stevens while defendant stood and watched. Collins handed Stevens a plastic bag which contained what was later analyzed to be one rock of crack cocaine in exchange for $20. Stevens got out of the truck and told Collins he was under arrest. Collins ran to where defendant was standing and they both ran off between some buildings. Stevens saw defendant driving his car in the same neighborhood the next day and arrested him. Evidence that defendant had pled guilty to possession of cocaine in 1990 was allowed.

1. “ ‘ “The denial of a motion for directed verdict of acquittal (where, as here, the motion is grounded on insufficiency of the evidence) should be affirmed if any rational trier of fact could have found the ‘essential elements of the crime beyond a reasonable doubt.’ ” ’ [Cits.] When this appellate standard is found to exist, we are per force finding that the evidence does not demand an acquittal as a matter of law. [Cit.] ‘Since the evidence was sufficient under the test provided under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)] . . . appellant’s motion for directed verdict was properly denied.’ [Cits.] On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.] Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which convicted. Jackson v. Virginia, supra. The trial court did not err in denying [either] the motion for directed verdict [or for new trial].” Wright v. State, 199 Ga. App. 718, 719 (1) (405 SE2d 757) (1991). Accord Hall v. State, 200 Ga. App. 244 (407 SE2d 470) (1991); Davis v. State, 200 Ga. App. 44, 46 (3) (406 SE2d 555) (1991).

2. Defendant contends the trial court committed reversible error in allowing the State to introduce the similar transaction evidence because it involved a plea of guilty to possession of cocaine rather than unlawful distribution. He grounds his position on the dissent in Faison v. State, 199 Ga. App. 447, 450 (405 SE2d 277) (1991), wherein it was stated: “While the act of selling a drug necessarily implies control or dominion over it, the converse is not true — i.e., possession of a drug does not necessarily imply an intention to sell or distribute it.”

We are not bound by a minority opinion, and conclude that the evidence here was sufficient to meet the standards set by the majority of this court in Faison, to-wit: “That the intent elements of the crimes may differ is totally immaterial to the determination of the admissibility of the evidence. There is no requirement that, to come within the ‘other transaction’ exception, the ‘other transaction’ must be identical in every [respect]. ‘The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence “may be admitted if it ‘ “is substantially relevant for some purpose other than to show a probability that (the defendant) committed the crime on trial because he is a man of criminal character. . . .” ’ ” (Cit.)’ [Cit.] ‘Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.’ (Emphasis supplied.) [Cits.] It is the factual similarity of the defendant’s possession of drugs on different occasions which renders it admissible to show his identity, and the differing intent with which he may have possessed the drugs on those separate occasions is not a bar to its admissibility for that limited purpose.” Id. at 448-449. Accord Smith v. State, 203 Ga. App. 3 (416 SE2d 129) (1992).

Merely because identity was not an issue here does not mean that the introduction of the similar transaction was only for the purpose of placing defendant’s character in evidence. At a hearing outside the presence of the jury Stevens testified that the first time the defendant was arrested he was riding a bicycle and when Stevens approached him he threw a cigarette pack in a ditch. Stevens retrieved the pack and discovered that inside it were five small plastic bags which each contained cocaine. Both incidents happened in the same one block area of the same neighborhood, and on both occasions the defendant was in possession of a number of plastic bags containing cocaine. While defendant was charged on the first occasion with possession of cocaine with intent to distribute, he pled guilty to the offense of possession. This evidence was similar enough to show defendant’s course of conduct and scheme or plan to engage in the business of distributing cocaine. We find no reversible error in the admission of this evidence.

Decided September 8, 1992.

Michael M. White, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A92A0865.
    HUNT v. THE STATE.
    (422 SE2d 75)
   Johnson, Judge.

A jury found John Hunt guilty of one count of selling cocaine to an undercover officer. He appeals his conviction.

1. Hunt, who represented himself at trial, testified that his purpose for being in a “known drug area” at the time of the incident was to gather material for a book he was writing about his life experiences. He argues in this appeal that the trial court erred in refusing to admit the manuscript of the book into evidence. The court excluded the manuscript on the grounds that its contents were irrelevant and immaterial to the offense charged. “Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.” OCGA § 24-2-1. The contents of the book itself do not bear on any of the elements of the crime charged and therefore the manuscript was properly excluded.

2. Hunt argues that it was error for the trial court to have ruled on his motion to suppress, motion to be released on his own recognizance and motion for reduction of bail without a hearing. Subsequent to the entry of an order on those motions, a hearing was held to consider several additional pre-trial motions filed by Hunt. Hunt did not renew the earlier motions or object to the court’s having previously ruled on them without an opportunity to be heard at the pre-trial hearing or at trial. As this issue was not timely raised below, we cannot consider them for the first time on appeal. Weaver v. State, 200 Ga. App. 82 (1) (406 SE2d 574) (1991).

Decided September 8, 1992.

Kirbo & McCalley, Jon V. Forehand, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

3. Evidence was presented at trial that Hunt approached the vehicle of the undercover agent and asked him what he needed. The officer replied “a twenty,” meaning of $20 piece of crack cocaine. Hunt then got in the back of the pick-up truck and instructed the officer to drive down the street. Hunt then told the driver to stop, got out of the truck and approached three other men on the street. All of the men then came up to the vehicle and sold the officer a quantity of cocaine for $20. It is clear from the evidence that Hunt aided, abetted, and in fact facilitated the commission of the crime with which he was convicted. Reviewing the evidence in the light most favorable to the jury’s verdict, we find that a rational trier of fact could have found Hunt guilty beyond a reasonable doubt of all of the charges. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: Sognier, Chief Judge.

text:
    A92A0866.
    THE STATE v. ELLIOTT.
    (422 SE2d 58)
   Sognier, Chief Judge.

Phillip Elliott was charged with driving under the influence, failure to maintain lane, and possession of a ' controlled substance (methamphetamine). The trial court granted Elliott’s motion to suppress certain evidence seized during a search of his car, and the State appeals.

At the motion hearing, Cherokee County Deputy Sheriff Ron Hopkins testified that while on patrol on Interstate 575 on the night of June 10, 1991 he observed a red truck driven by appellee swerve into the center lane and then change lanes several times without signalling. Hopkins stopped the vehicle as it left the highway. As he approached the driver’s side of the truck, Hopkins detected a strong odor of alcohol. After administering several field sobriety tests, which appellee was unable to perform, Hopkins arrested appellee for driving under the influence and seated him the back seat of the patrol car. Appellee requested that his passenger be allowed to drive the truck home, but Hopkins refused upon determining that the passenger also was intoxicated. Hopkins summoned another officer to drive the passenger home and then began an inventory search of the truck. He picked up a generic aspirin bottle he found sitting on top of a tackle box behind the driver’s seat. Upon hearing what he described as rice rattling inside the bottle, and knowing from his professional experience that drug users sometimes store drugs with rice to absorb excess moisture, Hopkins opened the bottle and discovered a small plastic bag filled with a substance later identified as methamphetamine.

The trial court granted appellee’s motion on the basis that Hopkins was not authorized to open the pill bottle during either an inventory search or a search incident to arrest and that he did not have probable cause to believe a drug offense was being committed. The State contends that Hopkins was authorized to search the passenger compartment of the truck incident to appellee’s arrest and that this authority extended to an examination of the contents of containers found therein. We agree and reverse.

The facts in this case are strikingly similar to those in State v. Holden, 162 Ga. App. 33 (290 SE2d 130) (1982), in which an officer stopped the defendant after observing, him drive erratically and arrested him for DUI, and the officer’s subsequent inventory search of the defendant’s vehicle yielded methaqualone tablets hidden inside a cigarette pack inside the glove compartment. This court held that a search of the passenger compartment of the car was lawful pursuant to OCGA § 17-5-1 (a) (4) (former Ga. Code Ann. § 27-301 (d)) as a search incident to a lawful arrest. As we held in Holden, “[i]t appears to be well settled under this code section that where a person is arrested for driving under the influence, ‘(a) search of the vehicle is proper for the purpose of obtaining evidence of the basis of a suspect’s intoxication. [Cits.]’ [Cit.] Such a search comports with the United States Supreme Court’s . . . holding that ‘when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile’ and ‘may also examine the contents of any containers found within the passenger compartment^] . . .’ New York v. Belton, 453 U. S. 454, 460 (101 SC 2860, 69 LE2d 768, 775) (1981). Since it appears without question that the search in this case was made as a contemporaneous incident of the arrest, we must conclude that it was lawful. The grant of the defendant’s motion to suppress is accordingly reversed.” Holden, supra at 33-34. Accord Lewis v. State, 195 Ga. App. 59-60 (1) (392 SE2d 563) (1990); Oswell v. State, 181 Ga. App. 35 (351 SE2d 221) (1986).

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.

Decided September 8, 1992.

Darrell E. Wilson, District Attorney, Gregory A. Hicks, Assistant District Attorney, for appellant.

Bray & Johnson, H. Michael Bray, for appellee.


text:
    A92A0883.
    BOWMAN v. THE STATE.
    (422 SE2d 239)
   Cooper, Judge.

Appellant was arrested for possession of cocaine and marijuana seized during the execution of a search warrant at his residence. He was indicted on two counts of violating the Georgia Controlled Substances Act, and following the denial of his motion to suppress, appellant was found guilty of both charges at a bench trial. On appeal, appellant’s sole enumeration of error is that the trial court erroneously ruled that he, and not the State, had the burden of proof on the issue of whether the search was unlawful.

Immediately prior to trial a hearing on appellant’s motion to suppress was held. The trial court directed defense counsel to call his first witness, and when the attorney protested that it was the State’s duty to present evidence the court stated that appellant had “to show why the search warrant is not good. You don’t get up and say it is not any good and sit down. You have the burden of going forward. If . . . you have a valid search warrant, you have the obligation to show why it is not any good.” After objecting to the court’s ruling that the defendant had the burden of proof, defense counsel produced the warrant and affidavit and called the affiant detective for cross-examination. The warrant was dated April 12, 1990, and stated that the detective had reason to believe that “Larry, white/male approximately 5T0”, 180 lbs., brown hair,” who resided at a certain address in DeKalb County in a house described as beige brick and brown shingles with the number on the front and a boat parked in the carport, was suspected of having cocaine on the premises in violation of OCGA § 16-13-30. The facts stated to establish probable cause were that “[w]ithin the last 72 hours of 12 March 1990, a confidential and reliable informant was inside the above location and observed cocaine being stored and sold. This informant has proven reliability over the last six (6) years by providing information to this detective that has led to the arrest of several people and the seizure of contraband drugs. Said informant has stated that some of the cocaine was stored in a boat in the carport of this residence. Affiant did a drive-by this date affirming existence of a boat in carport of said residence.” The detective testified that the date of March 12 typed in the application was a typographical error and that his testimony before the magistrate was that he received the information from the informant on April 12. He further swore that he verified much of the information he got from the informant with the DeKalb County police, including that appellant lived at the address given. During execution of the warrant, cocaine and marijuana were found in the house and on the person of appellant’s co-defendant, who arrived while the house was being searched.

Appellant relies on State v. Slaughter, 252 Ga. 435 (315 SE2d 865) (1984), which held: “[A]ll motions to suppress should be governed by OCGA § 17-5-30 ... to the extent possible. . . . [W]hen a motion to suppress is made on one of the three statutory grounds, challenging the validity of a search and seizure with a warrant, the burden of showing that the search and seizure were lawful shall be on the state. This burden upon the state is satisfied by production of the warrant and its supporting affidavit, and by showing either by those documents or by other evidence that the warrant is not subject to the statutory challenge alleged (i.e., the warrant is sufficient on its face, there was probable cause for its issuance, or the warrant was legally executed).” Id. at 439. It is undisputed that appellant’s motion was based on two of the grounds of invalidity found in OCGA § 17-5-30 (b): that the warrant was insufficient on its face; and that there was not probable cause for its issuance. Furthermore, the State concedes that the motion to suppress complied with OCGA § 17-5-30, and that under Slaughter, supra, it had the burden of proof to show that the search was valid. However, it contends that appellant has not shown that he was harmed by the procedure imposed by the trial court, as he did not have to expend any additional effort and was not deprived of any opportunity to confront and cross-examine witnesses. We agree that this was harmless error. The warrant and affidavit were attached to appellant’s motion to suppress and the detective who requested its issuance was the only witness at the hearing. “[T]he burden of proof referred to in [OCGA § 17-5-30] is a burden of persuasion. As such, it does not shift during the course of the motion hearing, even though the burden of producing evidence may shift back and forth. Accordingly, the mere fact that [appellant] assumed the burden of producing evidence at the outset of the hearing does not mean that the trial court shifted the burden of persuasion to [him].” Pope v. State, 134 Ga. App. 455, 456 (1) (214 SE2d 686) (1975). See Slaughter, supra at 438, n. 4. Since the warrant, the supporting affidavit and the other evidence offered were produced at the hearing, we cannot say the State did not meet its burden to show that the search and seizure were lawful. See Wells v. State, 196 Ga. App. 133 (1) (395 SE2d 296) (1990).

Decided September 8, 1992.

James B. Sullivan, for appellant.

Robert E. Wilson, District Attorney, Gregory A. Adams, Elisabeth G. MacNamara, Assistant District Attorneys, for appellee.

Judgment affirmed.

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