author: Birdsong, Presiding Judge.

text:
    A95A2075.
    ROWER v. THE STATE.
    (466 SE2d 897)
   Birdsong, Presiding Judge.

Curtis Alfonzo Rower was indicted for murder, kidnapping with bodily injury, two counts of kidnapping, and armed robbery, for kidnapping Sarah Ambrusko Tokars and her two young sons, Ricky and Michael, from her home and shooting Sarah Ambrusko Tokars to death. He was convicted on all charges except murder, as to which a mistrial was declared.

The evidence shows that at about 10:00 or 11:00 p.m. on November 29, 1992, Mrs. Tokars and her two sons Ricky and Michael were ambushed by appellant as they arrived home after a Thanksgiving trip. Appellant brandished a shotgun at Mrs. Tokars and her sons and ordered them to get back in the car. Appellant got in the car with Mrs. Tokars and her sons. Appellant, sitting in the back seat next to the sleeping Michael and brandishing his gun, ordered Mrs. Tokars to drive. He shot Mrs. Tokars in the head from a distance of only five inches. Her car careened out of control and landed in a field. The abrupt stop of the car caused Ricky to hit his head and Michael to wake up. In a state of panic, screaming and crying, nervous, scared and distraught, the boys ran to a nearby house and yelled for help, saying “Our mom’s been shot.” The occupants of the house could see Mrs. Tokars’ car about 120 yards away. The man who opened the door saw brain matter, a “mixture of blood and some kind of white material” on top of the older boy’s head. The older boy said a man had shot his mother because she would not turn right when he told her to turn right. Some of the occupants of the house called 911 and went to Mrs. Tokars’ car. Two men opened the driver’s door and Mrs. Tokars slumped out. Other occupants of the house also ran to the car. One man was holding Mrs. Tokars up, keeping her from falling out of the vehicle; another man shifted her body back into the vehicle. When a policeman arrived and spoke to the two boys, he saw a considerable amount of blood on the older boy’s hands and face and what appeared to be brain matter in his hair. The boy told the policeman that the black man told his mother to turn at a certain location “and she refused. At that point his mother screamed and pushed him down into the floorboard. He heard a loud shot” and the black man got out of the car but the boy did not know where he went. There was abundant evidence identifying appellant as the man who committed these crimes. On appeal of the convictions, Rower enumerates three errors. Held:

1. Appellant contends the trial court abused its discretion in denying his motion to strike for cause the prospective juror Pepin, who indicated in his written juror questionnaire that he held “strong racial prejudice views” which would prevent him from being an impartial juror but later, on voir dire, explained that he gave such answers because he wanted to avoid jury duty. This juror did not serve in the case, but appellant’s position is that he was erroneously forced, to his harm, to use a peremptory strike to remove this prospective juror. Appellant urges that a juror may be disqualified even though he insists he is not biased (Lively v. State, 262 Ga. 510 (421 SE2d 528)) and that blatant racial prejudice has no place in the jury box. See Tennon v. State, 235 Ga. 594 (220 SE2d 914). Appellant contends the very fact that Pepin admitted he was dishonest in his questionnaire proves false his later statements on voir dire that he could be a fair and impartial juror.

Under assiduous questioning on voir dire, under oath, Pepin stated that despite what he had written on his questionnaire, he “could make a fair decision.” He admitted he had not been honest in his responses to the questionnaire because he did not want to sit on the jury as he works on commission and had just started a job and if he does not work he does not get paid. He admitted to having used a certain vulgar racial epithet when referring to African-Americans. He admitted to a degree of racial prejudice but said he would listen to the evidence. Under oath he said the fact that appellant is black and Mrs. Tokars was white would not impair his ability to consider the case fairly; that the fact that he held strong Christian beliefs would not impair his ability to consider the evidence fairly; that he could fairly consider the issue of punishment and could “make a fair decision”; that, despite his questionnaire response that persons he knows including himself exhibit strong racial prejudice views, he did not have any prejudice that would prevent him from serving as a juror, as he believed “everybody has a little prejudice in them, but I feel that . . . you know, if I was selected, I could make a fair decision.” The defense put questions to Pepin as to whether he had had “problems with black people” and he said he had socialized with them well, had no problem in school, and that his problems with black persons “if any” had occurred while he was in college; that he felt white males were oppressed by other ethnic groups who made it seem white males were oppressing them; that he believed, from watching news programs, that Muslims were feisty, rough-natured trouble-causers but that he knew nothing about Buddhists and felt “each to their own beliefs.” He stated that he is a Christian and that if he found appellant was not a Christian, he would listen to everything to make a fair decision and would give appellant the same consideration as a Christian, and that he would take into account the defendant’s views but he would deal with appellant as he would a Christian white male and that he would not treat appellant any differently than he would a white man who was a member of his church; that he has black friends and although he had used a vulgar racial epithet many times in the past year, he thought this was “normal” behavior for some people and he did not feel there was anything particularly wrong with it. He said that based on a news report he had seen, he did not think black people were as “bright” as white people but he explained this was because they do not have the opportunity to study and he thought that if black people had equal education they would “come out with the same type of reasoning as [white people]” but they do not have such education because of “a lack of motivation to go and they’re taught to believe that, you know, they are not going to get ahead”; that he does not think blacks are more of a problem in schools and could not say whether they cause more crime in schools than do whites and in his experience in school, blacks and whites are in a same level on everything; that black teachers are as good as white teachers; that he could listen to mitigating evidence and would take the defendant’s background and upbringing into consideration as mitigating circumstances relevant to the crime committed; that the mere fact that he had found a person had committed felony murder would not dictate whether he would give him a death sentence. These are the statements and elaborations he made under oath.

The prospective juror Pepin did not possess any characteristic or fit any category of persons which would authorize or require a challenge for cause as expressly provided in OCGA § 15-12-163. As to whether Pepin’s prejudice was so great he should have been stricken as a matter of law, the Supreme Court has held: “Before a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.” Johnson v. State, 262 Ga. 652, 653 (424 SE2d 271). In order to obtain a new trial for failure of the trial court to strike a juror for cause, the defendant must show on voir dire such disposition to bias as to deprive the accused of a fair trial. See Poole v. State, 262 Ga. 668, 679 (424 SE2d 275). It is a matter of broad discretion of the trial court whether a prospective juror should have been discharged for cause because of prejudice so great as to deprive appellant of a fair trial. See Jordan v. State, 247 Ga. 328 (276 SE2d 224).

We find this case to be similar to Tennon v. State, supra, in that the prospective juror, in his sworn statements, exhibited a candor which assisted counsel in making his peremptory challenge. See also Burgess v. State, 264 Ga. 777 (450 SE2d 680). This juror was altogether more candid, we think, than are most jurors, or so the trial court could reasonably conclude. He explained he could be an impartial juror despite his prejudices, which he thought were common to the human race or not particularly wrong. His credibility under oath is a question for the trial court in the exercise of its discretion. That a venireman may initially express doubt as to his ability to be impartial does not alone demand that he be stricken for cause. See Lattany v. State, 193 Ga. App. 438 (388 SE2d 23).

The mere fact that a person admits having used a racial epithet at some time, or exhibits a preference for his religion and views other ethnic groups with suspicion does not render him incapable as a matter of law of impartially considering the criminal responsibility of a person of another race, religion, gender or ethnic group. Unfortunate though it is, ethnocentricity is a norm in all human behavior; even people of the race slandered in this case, including appellant, used that epithet amongst themselves. If such human failings demanded disqualification of a juror for cause as a matter of law, the right to a jury of one’s peers would be denied altogether. Where on reflection and deeper questioning, a person who has candidly admitted to such failings concludes nevertheless that he can consider the evidence in a fair and impartial manner, the best view taken of this juror is from the trial court’s bench, and we will not disturb its exercise of discretion unless it is manifestly abused. See Jordan, supra.

The trial court did not abuse its discretion in determining that Pepin’s sworn statements as a whole do not show that he was incapable of giving a fair consideration of the evidence as a matter of law.

2. Appellant contends the trial court erred in denying his motion in limine to exclude a videotape of the crime scene, because the videotape made by a Cobb County Sheriffs lieutenant shows Mrs. Tokars’ automobile, and Mrs. Tokars herself, “after both have been materially altered by law enforcement personnel [and] witnesses.”

Appellant does not state in what manner he believes the victim and her automobile were materially altered before being videotaped, nor does appellant aver in what manner such alteration harmed appellant. That argument is therefore abandoned. We note however, that the evidence shows the men who immediately came upon the scene opened her car; they evidently did so to aid her if such had been possible. When they opened her driver’s side door (against which her head had apparently been leaning), she slumped out, being dead, and the men had to push her body back into the car. This is not a “material alteration” by the police. The jury was well aware of this evidence and were capable of considering it while viewing on videotape Sarah Ambrusko Tokars’ body as it rested where exigent circumstances had placed it.

Appellant considers more significant the “inexplicable way . . . the videotape was shot.” Citing Jones v. State, 250 Ga. 498 (299 SE2d 549), he contends the videotape, because of its technical flaws and imperfections caused by the “cinema-verite” effects used by the cameraman, is not a fair and accurate representation of the crime scene. He contends that while videotaping Mrs. Tokars slumped forward in her car, the cameraman used a “rapid zoom” method which caused the picture to blur, followed by rapid focus; and what initially is a wide angle shot of a portion of the car and Mrs. Tokars “suddenly becomes a blurred object followed by a rapid focus onto a portion of [her] head and blood dripping off a strand of hair. The next scene [shows] a wide angle view of [Mrs. Tokars], a rapid zoom to an indistinguishable object which suddenly focuses onto the car door showing what appears to be blood and tissue on it.” This “rapid zoom and focus” technique also showed what appears to be brain and skull fragments on the car door, which had been opened, with a whitish-red bloody substance still drizzling through Mrs. Tokars’ hair, into her lap and on the steering wheel. These depictions were relevant to the State’s case and were not misleading in any manner nor does appellant suggest in what manner they were “misleading.”

We find untrue as a matter of fact appellant’s allegations that the videotape is “inaccurate,” or that it “materially altered” the crime scene because the cameraman used a “rapid zoom” and “focus” technique. The rapid-focus technique used in this case “altered” nothing. It clarified much. Appellant has not shown any way in which it was inaccurate. To the contrary, it enabled the jury to see in detail what they may not otherwise have seen except at a wide-angled distorted distance or as a “blur.” Moreover, since the evidence showed that neighbors had opened the car door and pushed Mrs. Tokars’ body back into the car after it slumped out, it was perfectly clear that the video did not depict Mrs. Tokars’ body and the car door exactly as they were when she was killed. A videotape of a scene may be admitted in evidence on the same basis as a still photograph, that is through a foundational showing that it is a fair and accurate representation of the scene sought to be depicted. Harper v. State, 213 Ga. App. 444, 449 (445 SE2d 303). Such a showing lays the proper foundation for admission of the videotape, and it was not inadmissible for any reason.

Decided December 18, 1995

Reconsideration denied January 19, 1996

Kennedy & Kennedy, David M. Simpson, Edwin Marger, Gordon E. Billheimer, Jr., for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Russell J. Parker, Assistant District Attorneys, for appellee.

3. Appellant contends he was entitled to a directed verdict of acquittal as to the kidnapping of Michael Tokars. He contends Michael Tokars could not have been abducted “against his will” because he was asleep during this abduction. See OCGA § 16-5-40.

We reject this concept out of hand. Though sleep may render a person mercifully unaware that a crime is being committed against him, it does not deprive him of his “will.” The fact that the child had “lost the capacity to remain with appellant voluntarily” does not render his abduction “voluntary.” Taylor v. State, 194 Ga. App. 871, 873 (392 SE2d 57); see also Wright v. State, 209 Ga. App. 128, 129 (433 SE2d 99).

4. We have reviewed the evidence and we find that a rational trier of fact could find appellant guilty of the crimes of which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Johnson and Smith, JJ., concur.


source: Caselaw Access Project

author: Per curiam.

license: Public Domain

text:
    A94A1767.
    STUBBS v. THE STATE.
    (467 SE2d 612)
    Decided January 19, 1996.

      Lewis R. Lamb, for appellant.

      Britt R. Priddy, District Attorney, Johnnie M. Graham, Gregory W. Edwards, Assistant District Attorneys, for appellee.
   Per curiam.

The decision of the Court of Appeals in Stubbs v. State, 215 Ga. App. 873 (452 SE2d 571) (1994), was affirmed in part and reversed in part by the Supreme Court in Stubbs v. State, 265 Ga. 883 (463 SE2d 686) (1995). Accordingly, the original judgment of this Court is hereby vacated to the extent that it was reversed by the Supreme Court, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed in part and reversed in part.

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


author: Andrews, Judge.

text:
    A95A1968.
    HALL v. THE STATE.
    (467 SE2d 206)
   Andrews, Judge.

Antoniony Lenton Hall appeals from the judgment entered against him in his jury trial for homicide by vehicle in the first degree. We affirm.

Viewed with all inferences in favor of the jury’s verdict, the evidence was that on March 21, 1994, Demons was living with her mother and other family members in a house on the south side of Hoey Street. Her mother looked after three children, including Demons’ cousin, Tyesha, age two. Demons helped her mother with the babysitting chores occasionally and was doing so on that day.

Around 5:00 p.m., Tyesha and the other two children, ages four and three, were playing in the front yard when Demons went to the mailbox, located diagonally across Hoey Street which was 21.4 feet wide. Parker’s house was on the same side of the street and to the left of Demons’ mailbox as Demons approached the box. Parker had just arrived home from work and was on her front porch when she saw Hall, her neighbor, come over the hill to her right in his Pontiac Sun-bird traveling east. According to Parker, Hall was going about 25 mph. Parker then saw Tyesha take some steps into the street, apparently heading for Demons. The car driven by Hall struck and killed Tyesha.

Sergeant Hill of the State Patrol was the investigating officer and was called to the scene by Deputy Sheriff Hobbs. Hill testified that he looked in Hall’s car and saw an open twelve-pack of beer in the rear floorboard, with at least one open can, and that Hall had an odor of alcohol about him and his speech was slightly slurred. A blood alcohol test was administered, reflecting a blood alcohol level of .12 grams.

Hill was qualified as an expert in accident reconstruction and, based on his investigation, opined that the spot of impact was seven feet from the south edge of Hoey Street, two hundred feet below the crest of the hill over which Hall had traveled, and eighty-four feet beyond Parker’s driveway. He further testified that he saw a mark on the front of Hall’s car on the driver’s side. Based on his analysis, Trooper Hill concluded that, from the crest of the hill to the point of impact, the stopping distances and times at various speeds were as follows: 20 mph, 19.04 feet and 1.3 seconds; 25 mph, 29.76 feet and 1.62 seconds; 30 mph, 42.85 feet and 1.95 seconds. He further opined that there was adequate distance for Hall to stop before striking Tyesha at any of these speeds.

Hill also testified that Tyesha had been taken by ambulance to the hospital when he arrived on the scene at 5:22 p.m. and that, before he could complete his investigation including questioning the three men in the two cars and Parker, relatives of the child had returned from the hospital and begun to congregate on the scene, screaming and crying. Because of the agitation of the growing crowd and concern for Hall’s safety, Hill put Hall under arrest, placed him in the patrol car and was driving away from the scene before he read Hall his implied consent rights at approximately 6:00 p.m.

Flournoy was a passenger in Hall’s car and stated that as they topped the hill, he “kinda glimpsed something” on the right side of the street. Marshall, another friend, was following Hall and Flournoy in a second car. The three had been playing basketball with three other men for a couple of hours and were on the way to another basketball court when the accident occurred. According to all three men, each had had two beers from a twelve-pack during the game. Hall had stopped and purchased the second twelve-pack on the way to the second basketball court.

1. Hall’s first enumeration is that the court erred in allowing into evidence the results of the blood test because Hill did not advise Hall of his implied consent rights “at the time of the arrest,” based on Clapsaddle v. State, 208 Ga. App. 840, 841 (432 SE2d 262) (1993).

A pretrial hearing was held on Hall’s motion in limine on this ground which the court denied.

While Hall argues that Deputy Hobbs’ description of the people at the scene should prevail over Sgt. Hill’s, this court will not disturb the factual findings of a trial court on a motion to suppress or motion in limine if there is any evidence to support it, as there is here. State v. Swift, 232 Ga. 535, 536 (1) (207 SE2d 459) (1974); Gray v. State, 207 Ga. App. 648, 650 (2) (428 SE2d 663) (1993). Therefore, we consider the issue based on Sgt. Hill’s description of the growing crowd of relatives and friends as “agitated.”

In Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983), relied upon in Clapsaddle, supra, the Supreme Court concluded that, under OCGA § 40-6-392 (a) (4), “[u]nder ordinary circumstances, where this advice is not given at the time of arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant, the results of the state-administered test will not be admissible at trial to show that the accused was driving under the influence of alcohol or drugs.”

Clapsaddle, pulled over for a minor traffic violation initially, was not advised of his rights until he had been transported to the station over an hour later and no valid reason for the delay was presented. That is not the situation here.

Here, a two-year-old child had died and Hill was concerned that the child’s relatives might be a threat to Hall. Under these circumstances, it cannot be said that waiting until he was driving away after having placed Hall under arrest was not as “timely, and practical a manner as dictated by the circumstances.” Martin v. State, 211 Ga. App. 561, 562 (440 SE2d 24) (1993) (ten-minute delay due to officer’s not having her implied consent warning card in her possession was not improper). Compare State v. Lamb, 217 Ga. App. 290 (456 SE2d 769) (1995) (30-minute delay because officer preferred to have card read in front of a witness was improper).

Therefore, there was no error in denial of the motion in limine and admission of the blood alcohol level.

2. Hall contends that a videotape of the accident scene, made by Hill on March 14, 1995, was improperly admitted over his objection that it was inaccurate, irrelevant and prejudicial.

Sergeant Hill made the video using the fixed camera in his patrol car. It records the accident scene as Hill made four passes of it at 20, 25, 30, and 35 mph. The only commentary on the video is Hill’s statement of his speed and noting the accident location as he passed it.

(a) “ ‘[A]n objection to evidence on the ground that it is irrelevant, immaterial and prejudicial is entirely too vague and general to present any questions for determination by the trial court, and the overruling of this objection does not constitute reversible error.’ ” (Citations omitted.) Royal v. State, 217 Ga. App. 459, 460 (2) (458 SE2d 366) (1995). Moclaire v. State, 215 Ga. App. 360, 365 (7) (451 SE2d 68) (1994).

(b) The remaining objection, which we address, was that the video did not accurately “depict the scene as it was that day [of the incident].” This objection was premised on the fact that Hill was driving a Ford Crown Victoria while Hall was driving a Pontiac Sun-bird, a smaller car.

“ ‘Georgia follows a liberal policy in the admission of photographic (or videotape) evidence. Whether, under the evidence, the photograph or (video)tape is a fair and accurate representation of the scene sought to be depicted addresses itself to the discretion of the trial judge which will not be controlled unless abused.’ (Citation omitted.) Eiland v. State, 130 Ga. App. 428, 429 (203 SE2d 619) (1973).” Woods v. State, 210 Ga. App. 172, 174 (2) (435 SE2d 464) (1993).

“ ‘Where (videotape) shot at a later time (is) used and there is testimony as to immaterial variations between the picture and the scene, the judge’s decision to admit the pictorial representation will not ordinarily be reversed. (Cit.)’ [Cit.]” Cheeks v. State, 203 Ga. App. 47, 50 (416 SE2d 336) (1992).

Here, Hill testified that the scene had not changed since the incident and that the purpose of the tape was to present an overview of the scene at different speeds for the jury. The State’s contention was that Hall had adequate distance within which to stop before hitting Tyesha, had his reflexes not been impaired by alcohol. Hall’s contention was that the child “darted” out in front of him and he had no chance to react. The videotape was properly admitted to allow the jury to evaluate the scene of the incident. There was no error.

3. Finally, Hall contends the court erred by charging to the jury the contents of OCGA § 40-6-391 (a) (1) (under the influence to the extent it is less safe to drive), when the DUI count of the indictment alleged that the crime was committed under OCGA § 40-6-391 (a) (4) (being in physical control of a vehicle with an alcohol concentration of .10 grams or more).

The court charged the jury on vehicular homicide in the first degree as follows: “when such person causes the death of another person without malice aforethought by driving or being in actual physical control of any moving vehicle while the accused’s alcohol concentration is 0.10 percent grams or more in his bloodstream.” The indictment charged that Hall caused the death of another person “through the violation of OCGA § 40-6-391. . . .”

As to the separate DUI charge, the court did charge both the “less safe to drive” and .10 grams methods by which DUI can be committed while the indictment specifically charged the .10 grams language.

In response to the court’s inquiry after the charge was given, defense counsel stated “I just want it on the record that the less safe charge that you gave to the jury, that my understanding from the accusation is that the DA decided to proceed on the physical control statute and not the less safe [one].”

Decided January 19, 1996.

Lucy J. Bell, for appellant.

Dennis C. Sanders, District Attorney, Durwood R. Davis, Assistant District Attorney, for appellee.

Pretermitting the issue of whether the language above is sufficient to state a viable objection to the charge given, we conclude that the charge, as given, even assuming it to be erroneous, was not harmful to Hall and does not require a reversal. King v. State, 194 Ga. App. 69, 71 (4) (389 SE2d 500) (1989); Sapp v. State, 184 Ga. App. 527, 528 (3) (362 SE2d 406) (1987).

Here, in essence, the court advised the jury of a method of committing DUI which required an element in addition to the method under which Hall was indicted, i.e., that he was under the influence to the extent it was less safe for him to drive. Compare Kevinezz v. State, 265 Ga. 78 (454 SE2d 441) (1995). Further, as earlier noted, the court only instructed one method by which the homicide could be proven and merged the DUI conviction into the homicide conviction.

Judgment affirmed.

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

       Hall was also convicted of DUI for being in control of a moving vehicle with an alcohol concentration of .10 grams or more. The court merged this offense into the homicide by vehicle charge.


author: Beasley, Chief Judge.

text:
    A95A2157.
    KEEFE et al. v. NORTHSIDE HOSPITAL, INC.
    (467 SE2d 9)
   Beasley, Chief Judge.

In this medical malpractice action, the Keefes stated in their complaint that “[p]ursuant to OCGA § 9-11-9.1, the Plaintiffs are filing this cause of action within ten (10) days of the statute of limitations, and the Plaintiffs by law shall supplement and amend to this Complaint within forty-five (45) days a pertinent Affidavit of an expert competent to testify pursuant to the above-captioned statute, and as to the breach of Defendant’s standard of care.” The plaintiffs then did as they alleged they would do and filed the affidavit, well within the 45-day period.

In its answer and in a motion to dismiss, the defendant hospital asserted that the complaint should be dismissed because plaintiffs failed to properly and timely file an expert affidavit, as required by OCGA § 9-11-9.1 (a), and failed to properly invoke the 45-day extension of time for filing the expert affidavit, pursuant to OCGA § 9-11-9.1 (b). In opposition, plaintiffs argued that by filing their action within ten days of the expiration of the statute of limitation and by putting the defendant on notice that they were invoking their automatic right under OCGA § 9-11-9.1 to file an amended complaint with a proper affidavit within 45 days, they met subsection (b)’s requirements. Plaintiffs appeal the court’s grant of the motion to dismiss.

Ordinarily, an expert’s affidavit must be filed with any complaint alleging professional malpractice. OCGA § 9-11-9.1 (a); St. Joseph’s Hosp. v. Nease, 259 Ga. 153, 154 (1) (a) (377 SE2d 847) (1989). But an exception to the contemporaneous filing requirement was created in OCGA § 9-11-9.1 (b). It gives a plaintiff an automatic right to supplement the complaint with a supporting affidavit within 45 days after the filing of the complaint, when two requirements are met: first, “the period of limitation will expire within ten days of the date of filing”; second, “because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared.” (Emphasis supplied.)

As to the first requirement, a plaintiff is not entitled to invoke the 45-day delay provisions of OCGA § 9-11-9.1 (b) when the applicable statute of limitation would not expire within ten days of the date of the filing of the complaint. Coleman v. Hicks, 209 Ga. App. 467, 469 (2) (433 SE2d 621) (1993); Legum v. Crouch, 208 Ga. App. 185, 189 (3) (430 SE2d 360) (1993).

As to the second requirement, in order to invoke the protections of subsection (b) the plaintiff must allege in the complaint that because of the time constraints, the expert affidavit could not be prepared. See Piedmont Hosp. v. Draper, 205 Ga. App. 160, 161 (1) (421 SE2d 543) (1992); Emory Clinic v. Wyatt, 200 Ga. App. 184 (1) (407 SE2d 135) (1991); Wright v. Crawford Long Hosp. &c., 205 Ga. App. 653, 655 (2) (423 SE2d 12) (1992); Thompson v. Long, 201 Ga. App. 480, 481 (1) (411 SE2d 322) (1991).

This is not mere verbiage but rather representation of a fact, a fact which is a necessary ingredient for the applicability of the grace period. It is not subject to challenge, if the affidavit is actually filed within the 45-day period. Works v. Aupont, 219 Ga. App. 577 (465 SE2d 717) (1995), held that “the trial court [has] no discretion in questioning plaintiffs’ excuse for noncompliance with OCGA § 9-11-9.1 (a).” Id. at 578. The representation of fact, which is made by the attorney who signs the pleading, is conclusively presumed to be true. The court in effect relies for truthfulness on fulfillment of the attorney’s duty as provided in OCGA § 15-19-4 (2). See also Directory Rules 1-102 (A) (4), (5) and 7-102 (A) (5) of the Georgia Code of Professional Responsibility. The significance of the fact is that on it hinges the viability of the complaint. We are constrained by its important role, as well as by rules of statutory construction, to hold that the allegation may not be merely implied, as was arguably done in this case. Instead, it must be stated.

Decided January 19, 1996

Belcher, Pakchar & Sams, Pat E. Belcher II, Jay W. Pakchar, for appellants.

Goldner, Sommers, Scrudder & Bass, Susan V. Sommers, Tammy S. Skinner, for appellee.

Cases such as Crook v. Funk, 214 Ga. App. 213 (447 SE2d 60) (1994); Dept. of Transp. v. Gilmore, 209 Ga. App. 656 (434 SE2d 114) (1993), and Brake v. Mintz, 193 Ga. App. 662 (388 SE2d 715) (1989), do not constitute conflicting authority, because none held that OCGA § 9-11-9.1 (b) had or had not been properly invoked.

In its requirement that the complaint contain the specified allegation, subsection (b) establishes an exception to the general liberality of pleading permitted under the Civil Practice Act, OCGA § 9-11-8. See 0-1 Drs. Mem. Holding Co. v. Moore, 190 Ga. App. 286, 288 (1) (378 SE2d 708) (1989). As noted in Brake, supra at 667, “The Legislature, in its wisdom, enacted procedural standards stricter for plaintiffs in professional malpractice suits than for plaintiffs in other suits.”

We did hold in Thompson that the complaint of a pro se plaintiff was not subject to dismissal even though she had not made the proper allegations. We also recognized in Wright that Thompson involved a pro se plaintiff so as to warrant the less stringent pleading standard used when appropriate in pro se cases. It is not applicable here. Plaintiffs, who are represented by counsel, were not entitled to the extension provided by OCGA § 9-11-9.1 (b) because they did not make the statutory allegation in the complaint.

Because the defendant raised the failure to comply with OCGA § 9-11-9.1 in its initial responsive pleading, the complaint was subject to dismissal under OCGA § 9-11-9.1 (e) for failure to state a claim for relief, which cannot be cured by amendment pursuant to OCGA § 9-11-15. Compare Sisk v. Patel, 217 Ga. App. 156 (456 SE2d 718) (1995) .

Judgment affirmed.

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


text:
    A95A2178.
    CAMERON v. PICKERING.
    (467 SE2d 210)
   Andrews, Judge.

Michael Cameron appeals from the state court’s order granting Pickering’s traverse of Cameron’s affidavit for continuing garnishment. Because we find that the state court erred in finding that a restitution order did not constitute a “money judgment” for purposes of a continuing garnishment under OCGA § 18-4-110, we reverse.

Decided January 19, 1996.

Michael S. Katz, for appellant.

Charles V. Gandy, Jr., for appellee.

The order which Cameron appeals states that Cameron sought to garnish Pickering’s earnings based on a restitution order for $5,103.45 in a criminal case. The state court found that OCGA § 18-4-110 provides for a continuing garnishment where the plaintiff has obtained a “money judgment.” Applying rules of strict construction, the court determined that a “restitution order is not the same thing as a ‘money judgment.’ ” Because there was no money judgment, the court granted the traverse.

We find the state court’s construction of OCGA § 18-4-110 to be excessively narrow. OCGA § 17-14-13 (a) states that “a restitution order shall be enforceable as is a civil judgment by execution.” Therefore, we find that a restitution order is a money judgment for purposes of continuing garnishment under OCGA § 18-4-110. Accordingly, the order of the trial court granting Pickering’s traverse to Cameron’s affidavit is reversed.

In light of the above holding, we need not address Cameron’s remaining enumeration of error.

Judgment reversed.

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


text:
    A95A2241.
    GREEN v. THE STATE.
    (467 SE2d 203)
   Beasley, Chief Judge.

Green was convicted of armed robbery (OCGA § 16-8-41) and possession of a firearm during the commission of a crime (OCGA § 16-11-106). Green’s motion for a new trial was denied and he appeals.

We view the evidence in a light most favorable to the verdict. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994). Green went to the Southern Motors car dealership in Savannah and expressed interest in a 1991 Honda Accord. Bremer, a sales associate, spoke to Green a few moments until sales associate Silverstein could actually assist Green. At Green’s request, Silverstein agreed to accompany him for a test drive, even though the dealership was to close in 20 minutes. It was still daylight. The two struck up a conversation during the drive, primarily focused on their military service in the Persian Gulf conflict. Silverstein became suspicious when Green was evasive in answering certain questions about his family and experiences in the military. He began to look for distinguishing marks on Green and noticed a prominent footprint-shaped scar or birthmark on Green’s arm.

Green drove the car into an apartment complex, indicating to Silverstein that he wanted to show the car to a friend. Instead, he pulled a pistol out of his groin area, pointed it at Silverstein, and instructed him to get out of the car. Silverstein exited the car and Green drove away.

Several months after the incident, a state trooper with the Florida Highway Patrol responded to a “vehicle in a ditch” call and found a 1991 Honda Accord with Green admitting to be the driver. Green produced an expired insurance card with the name “Thomas Green” (the former owner of the car) as his only identification. The trooper initiated a computer check and determined the vehicle was the Honda Accord stolen from the dealership in Savannah.

1. Green asserts that the verdict was contrary to the evidence and the law and against the weight of the evidence. The weight of the evidence is addressed to the trial court alone. Stinson v. State, 185 Ga. App. 543, 544 (364 SE2d 910) (1988). As Green recognizes, this Court is concerned only with the legal sufficiency of the evidence under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). So viewed, there was ample evidence from which a rational trier of fact could determine Green’s guilt beyond a reasonable doubt of the offenses charged. This enumeration of error is without merit. Grant v. State, 195 Ga. App. 463 (393 SE2d 737) (1990). The fact that Silverstein first reported that the scar was on the robber’s right arm and later said he was mistaken and that it was on the left arm created a conflict for the jury to resolve but did not undermine the verdict. The witness explained the original error as being attributable to his “mild shock” or “hysteria” right after the incident.

2. Green enumerates error in permitting the State to show to the jury, and admitting into evidence, a photograph. Green objected when the State attempted to display a photograph of an arm depicting a footprint-shaped scar on the ground that it had not been admitted into evidence and that it was without foundation in that the State had failed to prove that it was in fact a photograph of Green’s arm. The court admitted it, subject to the State offering proof that it was Green’s arm, that is to say, “linking up the evidence.” The State provided this proof through the testimony of Sergeant Delo, the Savannah policeman who investigated the theft and who took the close-up picture of the arm and the photograph of Green’s entire body, which also showed the mark on Green’s arm.

The rules for admission of a photograph at trial were outlined in Scott v. State, 206 Ga. App. 23 (424 SE2d 328) (1992): “ ‘A photograph is authenticated by showing it is a fair and accurate representation of the scene depicted. (Cit.) Any witness who is familiar with the scene depicted can authenticate the photograph; it is not necessary that the witness be the photographer or even that the witness have been present when the photograph was taken.’ Isaacs v. State, 259 Ga. 717, 732 (26) (386 SE2d 316).” Although neither Silverstein nor Delo testified exactly that the photograph was “a fair and accurate representation of the scene depicted,” an adequate foundation was established through similar testimony. Scott, supra at 25. As in Scott, “[w]e find this testimony at least substantially complies with the foundation requirement of Isaacs, supra, and that the trial court did not abuse its discretion in admitting this photograph in evidence.” Id.

3. On cross-examination, Green’s counsel questioned Sergeant Delo about the sequence of events relating to Delo showing Silver-stein the photograph of Green’s arm. Delo responded, “The photographs of those arms were shown to [Silverstein] on October 28th . . . [T]hat’s when I interviewed [Green] and that’s when I was able to get a photograph of the scar. At the time of the [initial] interview with Silverstein, which was September 1, [Green] was still in jail in Florida.”

Green contends Delo’s statement revealing that Green was in jail in Florida impermissibly placed his character in evidence. Due to his arrest for theft of the Honda, Green was temporarily jailed in Florida. This had already been placed in evidence, without objection, by the testimony of the Florida state trooper. Moreover, “ ‘evidence that an accused has been confined in jail in connection with the case at issue does not place his character in evidence.’ ” (Citations omitted.) Ferrell v. State, 198 Ga. App. 270, 272 (3) (401 SE2d 301) (1991).

4. Green urges error in the admission of the photographic lineup because it was impermissibly suggestive in that he is a heavy-set man and some of the men pictured were not heavy-set, citing Baier v. State, 124 Ga. App. 334 (183 SE2d 622) (1971). Baier and U. S. Supreme Court cases upon which it depends hold “that the Sixth Amendment guarantee covers the right to counsel at a critical pretrial confrontation where the results might well determine the fate of an accused and where the absence of counsel might derogate from his right to fair trial, and that courtroom identification by a witness to whom the accused was exhibited in the absence of counsel before trial must be excluded unless it can be established that the evidence had an independent origin or that the error in admitting the identification was harmless.” Id. at 336.

Decided January 19, 1996.

Willie T. Yancey, Jr., for appellant.

Spencer Lawton, Jr., District Attorney, Lori E. Tepper, Assistant District Attorney, for appellee.

Green has presented no authority that a failure to match exact physical sizes requires reversal. Instead, the test “is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” McCoy v. State, 190 Ga. App. 258, 260 (378 SE2d 888) (1989). In Baier, the court found the photographic lineup impermissibly suggestive because it consisted of only three pictures, two of which were of the defendant. In contrast, this lineup consisted of pictures of different men with substantially similar features. The six-photo spread in this instance was also sufficiently large not to lead a viewer into a potential choice. Its admission was not in error.

Secondly, the in-court identification following a selection from the spread was not impermissible. In addition to the spread not being suggestive, other factors affected the witnesses’ identifications, i.e., opportunity to view the criminal during the commission of the crime, witness’s degree of attention, prior descriptions, level of certainty, and the time between the crime and the identification. Smith v. State, 209 Ga. App. 540, 543 (433 SE2d 694) (1993). The State introduced the lineup into evidence through the testimony of sales associate Bremer. Both Silverstein and Bremer had picked Green out of the photographic lineup and identified him at trial. Both had given prior descriptions that fit Green. Silverstein had been intent on memorizing distinguishing marks and features while taking the test drive. Bremer testified that he clearly remembered what Green looked like, because he always looked into customers’ faces when speaking with them. Accordingly, the witnesses’ in-court identifications were in no way tainted.

Judgment affirmed.

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


text:
    A95A2551.
    STEPHENS v. THE STATE.
    (467 SE2d 201)
   Andrews, Judge.

Herman B. Stephens was found guilty by a jury of possession of cocaine with intent to distribute and appeals from the judgment of conviction.

The evidence showed police received an anonymous tip that cocaine was being brought into Americus by car. The tipster described the car, the route it would take, the approximate time it would arrive, and told police Stephens would be driving. Police spotted a car matching the description on the designated route at about the stated time and pursued the car to investigate the tip. While in pursuit of the car, police observed the driver throw an object out the window of the car. Shortly thereafter, the car pulled over and Stephens was identified as the driver and sole occupant of the car. The thrown object retrieved by the police was a bag containing approximately 13 grams of a chunky white substance which the crime lab tested positive for cocaine.

In addition to evidence showing Stephens possessed the cocaine, the State introduced opinion testimony from a police officer that the quantity of cocaine found in the bag was more than usually possessed for personal use and therefore was possessed for sale. The officer also testified that, although he had known Stephens for three years, he had no knowledge as to whether or not he was known as a drug user.

On appeal, Stephens claims: (1) the evidence was insufficient to support the conviction; (2) the State improperly injected his character into evidence; and (3) the trial court improperly imposed a life sentence. An enumeration of error claiming ineffective assistance of counsel was abandoned.

1. The evidence was clearly sufficient to prove beyond a reasonable doubt that Stephens possessed the cocaine found in the bag thrown from the car he was driving. However, mere possession of cocaine, without more, will not support a conviction for possession with intent to distribute. Wright v. State, 154 Ga. App. 400, 401-402 (268 SE2d 378) (1980). We have considered various kinds of additional evidence as proof of intent to distribute, including drug measuring and weighing paraphernalia, the packaging of the contraband, possession of certain amounts or denominations of currency, a prior possession with intent to distribute conviction, and expert testimony that the amount of contraband possessed was consistent with larger amounts usually held for sale rather than for personal use. James v. State, 214 Ga. App. 763, 764 (449 SE2d 126) (1994); Anderson v. State, 215 Ga. App. 426, 427-428 (451 SE2d 103) (1994) (physical precedent only).

In the present case, the only evidence offered by the State to show intent to distribute the cocaine was the opinion testimony from the police officer regarding the amount of the cocaine and the same officer’s testimony that he knew Stephens but did not know whether or not he used cocaine. As to the opinion testimony, we concluded in Davis v. State, 200 Ga. App. 44, 46 (406 SE2d 555) (1991), that “knowledge of the amount of crack cocaine one would generally possess for personal use or the amount which might evidence distribution is not necessarily within the scope of the ordinary layman’s knowledge and experience”; therefore, expert opinion testimony is admissible on this issue under OCGA § 24-9-67. The officer in this case gave his opinion without being tendered or qualified as an expert on the use of illegal drugs. Davis v. State, 209 Ga. App. 572, 573 (434 SE2d 132) (1993). This unqualified testimony was not competent evidence of an intent to distribute. James, supra at 765; Newberry v. D. R. Horton, Inc., 215 Ga. App. 858-859 (452 SE2d 560) (1994); compare Stewart v. State, 246 Ga. 70, 75 (268 SE2d 906) (1980). The officer’s additional testimony that he knew Stephens but had no knowledge as to whether or not he was a drug user provided no evidence showing an intent to distribute.

Accordingly, the evidence was insufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to prove Stephens was guilty of possession with intent to distribute. Dyer v. State, 218 Ga. App. 879 (463 SE2d 718) (1995). Since the evidence was sufficient to support a conviction for possession of cocaine, the judgment of conviction for possession with intent to distribute is vacated, and the case is remanded with direction that a conviction and sentence be entered for possession of cocaine. Anderson, supra at 428.

2. We do not address the remaining enumerations of error concerning the imposition of a life sentence for possession with intent to distribute since that sentence is no longer applicable. We note for purposes of resentencing that the record does not show the State gave Stephens clear pre-trial notice of any evidence it intended to use in aggravation of punishment. Although pre-trial colloquy between the trial court, defense counsel, and the prosecutor shows that defense counsel was aware the State intended to seek a life sentence if Stephens was convicted of possession with intent to distribute, there is no evidence that Stephens had any notice of a prior conviction on which the State intended to rely. Compare Moss v. State, 206 Ga. App. 310, 312 (425 SE2d 386) (1992) (oral notice that the State intended to seek a life sentence under recidivist statute was coupled with notice of prior convictions to be introduced as similar transactions). The purpose of giving a defendant pre-trial notice that a conviction will be used in aggravation of punishment and limiting admissibility at the pre-sentencing hearing pursuant to OCGA § 17-10-2 (a) to “only such evidence in aggravation as the state has made known to the defendant prior to the defendant’s trial . . is to give the defendant a chance “ ‘ “to examine his record to determine if the convictions are in fact his, if he was represented by counsel, and any other defect which would render such documents inadmissible during the pre-sentencing phase of the trial.” Herring v. State, 238 Ga. 288, 290 (232 SE2d 826) (1977).’ [Cit.]” Armstrong v. State, 264 Ga. 237, 238 (442 SE2d 759) (1994). Accordingly, no evidence in aggravation of punishment is admissible at the pre-sentencing hearing on remand.

Decided January 19, 1996.

Cecilia M. Cooper, for appellant.

John R. Parks, District Attorney, for appellee.

Judgment vacated and case remanded with direction.

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

       We need not address the issue of whether the officer’s testimony about his knowledge of Stephens placed the defendant’s character into evidence and, if so, whether Stephens opened the door to this inquiry by prior cross-examination of a police officer regarding the amount of cocaine usually consumed for personal use. The record is clear that, after the State made an offer of proof as to the officer’s testimony, defense counsel waived any objection by stating he had no problem with the testimony.


author: McMurray, Presiding Judge.

text:
    A95A1979.
    CORNISH v. THE STATE.
    (466 SE2d 919)
   McMurray, Presiding Judge.

Thelbert Bernard Cornish was convicted of two counts of robbery in violation of OCGA § 16-8-40. He enumerates three errors.

The evidence at trial revealed the following: Patricia Lewis, a bank customer, testified that she saw a black man enter the bank. After he bent down and placed a mask on his face, he jumped over the counter and removed money from several tellers’ drawers. He put the money in a black bag and left, removing his mask as he exited.

After the robbery, Lewis left town for several days. While she was unloading her car upon her return, she saw the same man in her apartment parking lot. She stated that after he saw her, he quickly returned to his apartment and she subsequently observed him looking out from behind a curtain. After several weeks, Lewis reported this information to the bank. She identified Cornish’s photograph from a photographic lineup and testified she was almost 100 percent certain of the identification. She also identified Cornish in court.

Cameras in the bank captured the robbery on videotape. In addition, five other witnesses testified that they too observed at least a portion of the events which culminated in the bank robbery.

Shewanne Spivey, another customer, testified that she noticed the robber as he entered the bank, put on the mask, and leaped over the counter. As the robber emptied the cash drawers, she ran out of the bank with her small child and jumped into the back seat of a car near the door in which two of her acquaintances from high school were sitting. Spivey observed the robber leave the bank and remove the mask. She subsequently identified Cornish from a photographic lineup and in court and testified that she was “very positive” about the identification. The men sitting in the front seat of this car, Carlos Durden and John Hensle, also identified Cornish as the robber from a photographic lineup. Hensle worked at the same apartment complex where Lewis had seen Cornish. He testified that he had seen Cornish there before the robbery.

Melinda Bowen, an employee at the dry cleaners next door to the bank, testified that she noticed Cornish sitting in his car for ten to twenty minutes before the robbery. She also noticed him returning to his car because the day was very hot and he was wearing gloves and carrying a satchel.

After Cornish’s arrest, police officers executing a search warrant retrieved gloves and a black satchel from Cornish’s home. These were subsequently admitted into evidence at trial. Held,-.

1. Cornish argues that the trial court erred in refusing to charge the jury on circumstantial evidence.

The Supreme Court has established a bright-line rule regarding a trial court’s duty to instruct a jury on circumstantial evidence. Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994). “[W]here the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request.” Robinson v. State, 261 Ga. 698, 699 (410 SE2d 116) (1991). See Yarn v. State, 215 Ga. App. 883, 886 (4) (452 SE2d 537) (1994), aff'd 265 Ga. 787 (462 SE2d 359) (1995). Thus, we find the trial court erred in refusing to charge the jury on circumstantial evidence.

However, the overwhelming direct evidence of guilt renders that error harmless. Two witnesses, Lewis and Spivey, actually saw Cornish rob the bank and subsequently identified him as the robber in photographic lineups and in court. Both expressed certainty about their identifications. This “ ‘evidence and all reasonable deductions therefrom were completely inconsistent with a reasonable hypothesis of innocence. To reverse (this conviction) would be a perversion of justice. (Cits.)’ [Cit.]” Ellerbee v. State, 215 Ga. App. 102, 104 (4) (449 SE2d 874) (1994).

2. Cornish argues that the trial court impermissibly placed his character into evidence by allowing the photographic lineup into the jury room during deliberations without any accompanying curative instructions. He maintains the photographs were obviously from previous arrests.

A defendant’s photograph bearing notations which indicate a prior arrest are the visual equivalent of oral testimony establishing a previous arrest; thus, the introduction of such a photograph impermissibly places the defendant’s character into evidence. Roundtree v. State, 181 Ga. App. 594 (353 SE2d 88) (1987). However, a mere reference to the fact that the defendant’s photograph was already in police records does not place the defendant’s character in issue. Harris v. State, 191 Ga. App. 399 (381 SE2d 602) (1989).

In the case sub judice, numbered front and side shots of six individuals were admitted into evidence. Each set was arrayed over what appears to be an empty white box, which completely blocks any information, words, or numbers under the photographs. It follows that this evidence, which provides no information about the dates of any prior arrests, is the visual equivalent of an oral reference to the fact that the defendant’s photograph was already in police records and does not place the defendant’s character in issue. Harris v. State, supra, 191 Ga. App. at 399.

Moreover, at trial, defense counsel never requested curative instructions or a mistrial when the issue was raised during the discussion about the evidence which would go to the jury room. Counsel simply expressed concern about the visibility of numbers beneath the photographs in the photographic lineup and suggested that another layer of paper would cover them. By failing to move for a mistrial or request an instruction, defendant failed to preserve the issue. Morrill v. State, 216 Ga. App. 468, 474 (9) (454 SE2d 796) (1995); Tuggle v. State, 211 Ga. App. 854, 855 (2) (440 SE2d 740) (1994).

3. Cornish argues that he received ineffective assistance because his counsel (a) knew the bag and gloves brought into court were not those held in evidence in the property room and testified to that fact at trial without withdrawing or objecting to their admission; (b) failed to impeach Durden with a statement he purportedly made to Cornish while both were jailed prior to trial that Cornish looked nothing like the robber; (c) failed to call character witnesses; (d) failed to establish that the photograph in the photographic lineup was five years old and Cornish’s appearance had changed since then; and (e) talked Cornish out of testifying on his own behalf.

Cornish has the burden of establishing that his trial defense counsel’s performance was deficient and the deficient performance prejudiced his defense to the extent that there was a reasonable probability the result of his trial would have been different but for his defense counsel’s unprofessional deficiencies. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (357 SE2d 590) (1987). Review of counsel’s performance, however, must be highly deferential; strategic decisions amount to ineffective assistance only if so patently unreasonable that no competent attorney would have chosen them. Rogers v. State, 195 Ga. App. 446, 447 (394 SE2d 116) (1990); Kelly v. United States, 820 F2d 1173, 1176 (11th Cir. 1987), cert. denied, 484 U. S. 966 (108 SC 458, 98 LE2d 398) (1987). Both components of an ineffective assistance of counsel claim need not be addressed if an insufficient showing is made on one of them. Thompson v. State, 191 Ga. App. 906 (1) (383 SE2d 339) (1989). For the following reasons, we find that trial counsel’s assistance was not ineffective.

(a) The record shows that while the jury was deliberating, defense counsel placed his suspicions into the record that the gloves and bag admitted into evidence were not the same as those he observed in the evidence room when he was first retained. After examining the record and transcript in their totality, we find there exists no reasonable probability that had this evidence been objected to or presented to the jury, the outcome would have been different. In particular, we note that five witnesses identified Cornish as the bank robber. Moreover, at the hearing on the motion for new trial, Cornish’s trial counsel testified that he did not raise the issue before the jury because directly confronting the lead investigator’s credibility creates problems. Thus, counsel’s decision was strategic.

(b) In light of the overwhelming evidence of guilt, even if trial counsel committed error by failing to cross-examine Durden about his alleged jailhouse statement that Cornish was not the man he saw, it was not prejudicial because Lewis and Spivey both testified that they actually saw Cornish rob the bank. Further, the decision to impeach Durden would have required Cornish to testify, a strategy trial counsel rejected.

(c) Nor has Cornish established that trial counsel’s failure to call character witnesses affected the trial’s outcome. Cornish has proffered no evidence of the testimony of such witnesses. Substantially all of the testimony presented by potential character witnesses in mitigation at sentencing was limited to Cornish’s relationship with his family and would have been inadmissible. Boyce v. State, 258 Ga. 171, 172 (1) (366 SE2d 684) (1988) (character evidence limited to defendant’s reputation in the community). Trial counsel made the strategic decision not to call the character witnesses at trial because they were present in Cornish’s home when the warrant was executed and were apprehensive about testifying.

(d) Cornish failed to establish that trial counsel’s failure to inform the jury that the lineup photographs used to identify him were over five years old prejudiced his defense sufficiently to undermine the verdict. The only difference between Cornish’s appearance at trial and the identification photograph apparent in the record is that the photograph showed Cornish without a beard and he had a beard at trial.

Decided January 22, 1996.

Duana R. Sanson, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, J. Michael McDaniel, Assistant District Attorneys, for appellee.

Cornish asserts that the failure to invoke the rule of sequestration at the preliminary hearing tainted all identifications made then and thereafter. He did not include this issue in his enumerations of error and offers no argument or legal authority in its support. Therefore, we deem the issue abandoned. Court of Appeals Rule 27 (c) (2); see Weathers v. State, 202 Ga. App. 849, 851-852 (1) (415 SE2d 690) (1992).

(e) Cornish failed to establish prejudice arising from trial counsel’s strategic decision not to call Cornish as a witness. The record shows that Cornish wanted to testify, but his counsel advised against it to avoid directly attacking the lead investigator’s credibility and, ultimately, Cornish agreed not to testify. Having reviewed the transcript of the trial and motion for new trial, we find that Cornish’s testimony would not have been outcome-determinative and counsel’s decision amounted to a reasonable trial strategy. See Allen v. State, 199 Ga. App. 365, 367 (6) (405 SE2d 94) (1991).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

       Cornish acquired new representation on appeal. See Ponder v. State, 260 Ga. 840 (1) (400 SE2d 922) (1991).


text:
    A95A2027.
    PATRICK v. THE STATE.
    (467 SE2d 211)
   McMurray, Presiding Judge.

Defendant was indicted for possession of cocaine with intent to distribute and possession of cocaine with intent to distribute within 1,000 feet of a public housing project. At a jury trial, Officer Wayne Taylor and Captain Jack Wood of the City of Cordele Police Department testified that they were performing undercover surveillance in an area known for illegal drug activity when they observed defendant and a group of other suspects engaging in conduct which appeared to be consistent with illegal drug activity. The officers testified that they heard defendant solicit the sale of illegal drugs and that they observed several exchanges within the huddle of suspects. Officer Taylor testified that he radioed for a mobile patrol unit to flush defendant and his associates toward the undercover officers’ position and that he and Captain Wood surprised defendant as the suspects (consisting of defendant and at least two or three other people) moved toward the officers’ lure. Officer Taylor testified that defendant “looked up and saw us[,] called Captain Wood’s name and began to back up.” Officer Taylor explained that, as he and Captain Wood ran toward defendant, he observed defendant’s “hands fly up, [and] saw something come out of [defendant’s] right hand and a small plastic bag hit him in the chest.” Captain Wood testified that, “when [he] started after [defendant, defendant] reached . . . and took the plastic bag out and threw it from right inside his pants here, and at that time [he] took [defendant] down to the ground and held him down mostly for fear that [defendant] would come out with a gun.” Officer Taylor testified that he helped subdue defendant and that he then “went back and retrieved what was in the plastic bag.” Captain Wood testified that defendant was found to be in possession of “a package of rolling papers[,] one single edged razor blade[,] two pocket knives [and] $41.00 in cash.” A Georgia Bureau of Investigation (“GBI”) crime laboratory scientist testified that the razor blade found in defendant’s possession tested positive for the presence of cocaine and that the plastic bag contained 2.1 grams of “free base or crack” cocaine.

Defendant called three eyewitnesses who testified that defendant was subdued by law enforcement officers immediately after he announced to other loitering suspects that the officers were hiding in some nearby bushes. One of these eyewitnesses testified that Gregory King tossed the bag of cocaine when the officers approached. Another testified that he did not observe defendant throw anything to the ground when the officers appeared and that Gregory King was in the area at the time of defendant’s arrest. And a third defense witness testified that he did not observe defendant throw anything to the ground. Gregory King corroborated this evidence, testifying that he did not observe defendant throw a bag of cocaine to the ground. Two of defendant’s witnesses admitted, however, that they were inmates with defendant at the Crisp County Jail and all four witnesses were shown to be convicted felons. Defendant testified on his own behalf, denying that he possessed the bag of cocaine and explaining that he dropped a pack of cigarettes when Captain Wood attacked him. Defendant also testified that he was not in possession of a razor blade at the time of his arrest.

The jury found defendant guilty on both counts of the indictment. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in denying his motion for a continuance, arguing the State did not provide him with timely notice of the results of a scientific test indicating the presence of cocaine on the razor blade that was allegedly taken from him at the time of his arrest. Defendant claims that, he, too should have been given an opportunity to test the razor blade for the presence of cocaine.

Before announcing ready for trial on March 7, 1994, defense counsel complained that the State’s attorney did not advise him until the Friday before trial (March 4, 1994) about the results of the State crime laboratory’s test of the razor blade that was allegedly seized from him at the time of his arrest. The State’s attorney responded that he notified defense counsel (via telephone) about the test results as soon as the State crime laboratory notified him. The State’s attorney also explained that the crime laboratory’s delay in testing the razor blade was “[b]ecause of their shortage of personnel they examined the drugs and simply didn’t analyze the [razor blade]; and [that] in preparation of trial, [he] asked [the crime laboratory on Friday, March 4, 1993, to] go ahead and analyze [the razor blade] as well.” The trial court asked defense counsel, “What is the most that you could have done, gotten your own scientist to analyze it?” And defense counsel responded: “We would have, as far as the razor blade itself is concerned, we would have, in dealing with our witnesses that we were going to call in the case, their knowledge as to whether there was any possession of such a razor blade, whether they were aware of such a razor blade. We would have gone further; we may have, if we’d got it, had a scientific report of our own done.”

“Under Georgia law, upon filing of a timely motion a defendant is entitled ‘to have an expert of his choosing, bound by appropriate safeguards imposed by the Court, examine a piece of critical evidence whose nature is subject to varying expert opinion.’ Sabel v. State, 248 Ga. 10, 17 (282 SE2d 61) (1981). Motions for continuance, however, ‘address themselves to the sound discretion of the trial court, and the ruling of the trial judge in denying a motion for continuance will not be interfered with unless the court has abused its discretion.’ Shaw v. State, 239 Ga. 690, 692 (238 SE2d 434) (1977); OCGA § 17-8-22. . . . [And this] court has held that when a motion for continuance is not filed until the day of the trial or hearing, the trial court does not abuse its discretion by denying the motion. Pressel v. State, 163 Ga. App. 188 (292 SE2d 553) (1982).” Hunt v. State, 173 Ga. App. 638, 639 (327 SE2d 500).

Although it is undisputed in the case sub judice that defendant was aware over seven months before trial about the State’s allegation that he was in possession of a razor blade at the time of his arrest, defendant did not request an independent analysis of the razor blade until his case was called for trial. Defendant excuses his delay in requesting such an independent analysis by pointing out that the State’s scientific report (which was given to him several months before trial pursuant to an OCGA § 17-7-211 request) indicated that the razor blade was not tested by the State’s crime laboratory. Defendant thus reasons that he was surprised when the State’s attorney notified him during the afternoon of the last business day before trial that the presence of cocaine on the razor blade would be an issue at trial. Similar arguments, however, were asserted and rejected under analogous circumstances in Stroud v. State, 176 Ga. App. 300, 301 (2) (335 SE2d 678), and Hunt v. State, 173 Ga. App. 638, 639, supra. For the reasons stated in these opinions, we cannot say the trial court abused its discretion in denying defendant’s motion for a continuance. If defendant desired an independent analysis of the items allegedly seized from his possession at the time of his arrest, defendant should have requested such an analysis long before trial. The failure to do so indicated a lack of due diligence. Stroud v. State, 176 Ga. App. 300, 301 (2), supra, and Hunt v. State, 173 Ga. App. 638, 639, supra. See also Kendrix v. State, 206 Ga. App. 627 (2) (426 SE2d 251).

Decided January 22, 1996.

John W. Sherrer, Jr., for appellant.

John C. Pridgen, District Attorney, for appellee.

2. Defendant’s contention that the evidence was insufficient to support the jury’s verdicts is without merit. Although conflicting, the evidence adduced at trial is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of possession of cocaine with intent to distribute and possession of cocaine with intent to distribute within 1,000 feet of a public housing project. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Turner v. State, 210 Ga. App. 328, 329 (1) (436 SE2d 66).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2206, A95A2207.
    NEAL v. THE STATE (two cases).
    (467 SE2d 219)
   McMurray, Presiding Judge.

Defendant was tried before a jury on two indictments, one charging him with robbery by force and the other with aggravated assault (with intent to rob). The evidence adduced at trial reveals that both crimes stem from the same incident whereby defendant and an accomplice assaulted and robbed the owner of a liquor store. Defendant was found guilty of both offenses and the trial court sentenced him to serve 20 years for the robbery by force and 20 years (to be served concurrently) for the aggravated assault. After the denial of his motion for new trial, defendant filed an appeal in Case No. A95A2206 from his conviction and sentence for robbery by force and a separate appeal in Case No. A95A2207 from his conviction and sentence for aggravated assault. A consolidated enumeration of errors and brief has been filed in support of the appeals. Held-.

Decided January 22, 1996.

1. Defendant contends that he cannot be convicted and sentenced for both aggravated assault (with intent to rob) and the completed offense of robbery by force. We agree and so does the State, offering no opposition to this enumeration of error.

“A person may be convicted of the offense of assault with intent to commit a crime if the crime intended was actually committed as a result of the assault but may not be convicted of both the assault and the completed crime.” OCGA § 16-5-22. The evidence adduced at trial in the case sub judice reveals that the crime defendant and his accomplice intended to accomplish via an assault, i.e., robbery, was completed. Consequently, the entry of separate convictions and sentences against defendant for both aggravated assault (with intent to rob) and the completed offense of robbery by force is barred by OCGA § 16-5-22. Accordingly, the judgment of conviction and sentence entered against defendant in Case No. A95A2207 must be vacated. See Head v. State, 202 Ga. App. 209, 210 (2) (413 SE2d 533).

2. Defendant challenges the sufficiency of the evidence, arguing “that the jury gave no consideration to the testimony of [his] alibi witnesses.” This argument is without merit.

The credibility of the witnesses is entirely within the province of the trier of fact. McNeese v. State, 170 Ga. App. 118 (1) (316 SE2d 564). The victim’s testimony that defendant perpetrated the crime charged, along with proof that defendant’s cap was dropped at the crime scene and the testimony of two witnesses who saw defendant fleeing from the crime scene shortly after the victim was assaulted, is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of robbery by force as charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

3. We agree with defendant that the trial court erred in failing to fully reinstruct the jury at the close of evidence with regard to the law concerning how jurors may weigh the credibility of witnesses. Under the authority of Griffith v. State, 264 Ga. 326 (2) (444 SE2d 794), the procedure of giving such instructions before trial, without repeating the charge at the close of evidence, is error. Under the circumstances of the case sub judice, however, we find it highly probable that the trial court’s failure to repeat the above jury instructions to the jury in the final charge did not contribute to the judgment. Accordingly, the error was harmless and thereby does not require a new trial. Id. at 326 (2), 327.

Judgment affirmed in Case No. A95A2206. Judgment vacated in Case No. A95A2207.

Andrews and Blackburn, JJ., concur.

Johnny B. Mostiler, for appellant.

William T. McBroom III, District Attorney, James E. Hardin, Assistant District Attorney, for appellee.


author: Smith, Judge.

text:
    A95A2375.
    RAINES v. THE STATE.
    (467 SE2d 217)
   Smith, Judge.

J. M. “Mac” Raines was one of numerous individuals indicted by an Upson County grand jury under the Georgia Racketeer Influenced & Corrupt Organizations Act (RICO), OCGA § 16-14-1 et seq. He was charged with two predicate acts, the minimum required for a RICO offense. OCGA § 16-14-3 (8). He was brought to trial with co-defendant Adams, who was charged with 24 predicate acts. After a two-week trial, the jury convicted both Adams and Raines. Raines’s motion for new trial was denied and he appeals. Because we find that the State failed to charge two separate predicate acts as required by RICO, we reverse.

The trial of this action produced 26 volumes of record and transcript, but the only evidence with respect to Raines is found in approximately 20 pages of testimony. Construed in favor of the verdict, the evidence shows that Raines sold the timber on a parcel of land to Keadle Timber Company. Joe Garrard, described by the investigating agent as the “linchpin” of a massive timber fraud scheme, “cruised” or estimated the value of the timber for Keadle, his employer. Testimony was presented that the timber on the land was not as stated by Garrard in quantity, size, or value. Testimony was also given by an attorney that Raines did not have good title to all 200 acres of the land in question “because other people had a better title.” Keadle employees prepared the timber deed with notations made by Garrard and a legal description provided by Keadle, and Garrard or one of his assistants filed the deed at the courthouse. Raines had no discussions with and made no representations to Keadle’s principal, who testified that he relied entirely on his employee, Garrard.

1. Raines contends the State did not show the two “predicate acts” required to create Georgia RICO liability. OCGA § 16-14-3 (8). See Purvis v. State, 208 Ga. App. 653, 656 (433 SE2d 58) (1993). Raines was indicted on the basis of “Predicate Act 90,” a violation of OCGA § 16-8-2, theft by taking, by selling a parcel of timber land for a price greatly in excess of its true value by means of false timber-cruising reports. He was also indicted on the basis of “Predicate Act 91,” a violation of OCGA § 16-10-20, “fraudulent documents in matters within jurisdiction of state or political subdivisions,” by causing a false deed to be filed with the clerk of the superior court. Raines contends these two predicate acts are in reality “two sides of the same coin” — ordinary and customary aspects of a single transaction, the sale of the timber, and therefore cannot constitute the required two separate acts under Georgia RICO. We agree.

In Cobb v. Kennon Realty Svcs., 191 Ga. App. 740 (382 SE2d 697) (1989), a complex real estate transaction was arranged among four persons and a company, involving several loans and corresponding deeds to secure debt. When the transaction failed, several of the participants attempted to bring a civil RICO action. This Court held that the scheme and the various actions taken to further it, though complex, constituted “only the one extended transaction between [appellant] and the appellees” and did not constitute “a pattern of racketeering activity” within the meaning of RICO, OCGA § 16-14-4 (a). Cobb, supra at 741-742 (2). See also Emrich v. Winsor, 198 Ga. App. 333 (401 SE2d 76) (1991) (sale to two victims in “one isolated transaction” does not establish pattern of racketeering activity); Waldschmidt v. Crosa, 177 Ga. App. 707, 709-710 (2) (340 SE2d 664) (1986) (“salting” receipts on several occasions to further sale of business constitutes only one transaction).

The State has failed to respond to Raines’s argument based on the RICO decisions of this Court, relying instead on its repeated assertion that the violation of two Code sections constitutes two separate offenses. The issue, however, is not whether Raines could have been charged with two separate offenses under other Georgia criminal statutes. He was charged under the Georgia RICO statute, and that statute requires evidence of two separate transactions constituting a “pattern of racketeering activity.” The sale of timber from a single parcel of real property, by means of a single deed, in one isolated transaction, cannot be broken down into two predicate acts by separately charging the sale and the filing of the deed. The trial court erred in denying Raines’s rqotion to dismiss, his demurrer to the indictment, and his motion for directed verdict of acquittal.

2. As a result of our decision in Division 1, we need not reach Raines’s remaining enumerations of error.

Judgment reversed.

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

Decided January 22, 1996

Richard T. Bridges, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Michael J. Bowers, Attorney General, Michael E. Hobbs, Senior Assistant Attorney General, Patrick D. Deering, for appellee.

       This indictment and its predecessor have given rise to numerous appeals by some of the individuals and corporations named in the indictments. See, e.g., Pope v. State, 214 Ga. App. 458 (448 SE2d 54) (1994), aff'd 265 Ga. 473 (458 SE2d 115) (1995); Fletcher v. State, 213 Ga. App. 401 (445 SE2d 279) (1994); State v. Adams, 209 Ga. App. 141 (433 SE2d 355) (1993).

       These would be predicate acts under OCGA § 16-14-3 (9) (A) (ix) and (xv).


text:
    A95A2681.
    EICKHORN v. BOATRIGHT et al.
    (467 SE2d 214)
   Birdsong, Presiding Judge.

This is a suit for damages arising out of a two-vehicle collision. Appellant/plaintiff William Eickhorn b/n/f Mary Ann Mathis appeals from the order of the trial court granting summary judgment to appellees/defendants Rawleigh 0. Boatright, Chris L. Starling, and Deep South Industrial Cleaning, and granting summary judgment to State Farm Automobile Insurance Company, named in the suit as the uninsured motorist carrier. Appellant’s sole enumeration is that the trial court erred in granting summary judgment to appellees when the evidence showed that plaintiff was in the general employment of Deep South but was not in the course and scope of his employment at the time of the injury and would not begin his employment until he began work at the job site hours or days away.

Appellant was a laborer employed by Deep South; appellees Rawleigh O. Boatright and Chris L. Starling were co-employees. The work involved industrial cleaning at various job sites and required appellant to travel to the job sites and stay several days at a time. At the time of the incident, appellant and his co-employees were en route from Jesup, Georgia, to a job site in Florida riding in two Deep South-owned pickup trucks. Deep South employees could travel to the job sites in any manner they desired, but Deep South did furnish company vehicles for job site travel. Appellant was a passenger in one of the company trucks driven by appellee Starling; the truck driven by Starling was being followed by the other company truck driven by appellee Boatright. Starling had to apply his brakes forcefully to avoid hitting another vehicle; and the Boatright-driven truck then collided with the back end of the Starling-driven truck. Appellant sustained a severe head injury in the collision. Deep South had workers’ compensation insurance in force on the date of the injury.

The trial court, relying on the precedent of Jose Andrade Painting v. Jaimes, 207 Ga. App. 596 (428 SE2d 640), granted summary judgment to appellees based on appellees’ contention that appellant’s injury arose out of and in the scope of his employment and thus appellant’s exclusive remedy is under the Workers’ Compensation Act (OCGA § 34-9-11). Held:

1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. “It is well settled that a workman injured going to or coming from the place of work is not in the course of his employment. There is an exception, however, as well established as the rule itself. The exception, which is supported by overwhelming authority, is this: When a workman is so injured while being transported in a vehicle furnished by his employer as an incident of the employment, he is within the course of employment, as contemplated by the act. In other words, when the vehicle is supplied by the employer for the mutual benefit of himself and the workman to facilitate the progress of the work, the employment begins when the workman enters the vehicle and ends when he leaves it on the termination of his labor. This exception to the rule may arise either as the result of custom or contract, express or implied. It may be implied from the nature and circumstances of the employment and the custom of the employer to furnish transportation.” (Citations, punctuation, and emphasis omitted.) Jose Andrade Painting, supra at 597; compare Cooper v. Lumbermen’s Mut. Cas. Co., 179 Ga. 256 (175 SE 577).

It is uncontested that appellant was injured while riding to the job site in a vehicle furnished by his employer for the purpose of transporting employees thereto. The remaining contention is whether the vehicle was furnished as an incident of employment, such as for the progress of the work, by Deep South at the time of appellant’s injury. The trial court concluded from the evidence before it that since appellant was going to an out-of-state job site at the time of his injury, the employer’s provision of transportation was clearly for the mutual benefit of the employer and the workman to facilitate the progress of the work.

Both appellant and appellees assert on appeal that appellees Starling and Boatright, the co-workers of appellant Eickhorn, were at the time of appellant’s injury driving vehicles owned by appellee Deep South and were in the course and scope of their employment. Appellant contends, however, that a genuine issue of material fact exists whether the Deep South vehicle in which he was riding to the job site was provided for the mutual benefit of his employer and himself, and whether it was provided to facilitate the work. There exist uncontroverted facts that, at the time of appellant’s injury, the two pickup trucks involved in the collision were owned by the employer, were being driven by company employees who were then acting in the course and scope of their employment, and that appellant who also was employed by the company was riding in the truck to an out-of-state job site. Further, as stated in an answer to interrogatories and thereafter uncontroverted, several vehicles were traveling in a Deep South “convoy” at the time of the collision. The first vehicle in the Deep South convoy was a 40-foot trailer/truck; the second vehicle in the convoy was driven by an individual named Middleton; the crew supervisor was in the last vehicle in the convoy.

In ruling on a summary judgment motion, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all reasonable inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843). However, when only one reasonable inference can be drawn from the uncontroverted facts in evidence, that is the inference which will be drawn. There exists but one reasonable inference that can be drawn from the circumstances surrounding appellant’s status as a passenger/employee in the Deep South pickup; specifically, the transporting of appellant to an out-of-state job site in a company vehicle and other employees in company vehicles and/or other vehicles traveling in convoy was for the mutual benefit of both the employer and the employees (including appellant). No other reasonable inference can be drawn but that the providing of company transportation under such circumstances was to facilitate the progress of the work by ensuring that both equipment and personnel would arrive timely at the out-of-state job site. Accordingly, although the job site was in Florida, appellant’s employment began when he entered the company-owned vehicle that was provided for his and his employer’s mutual benefit. Appellant’s exclusive remedy for the claims he raises is that provided by the Workers’ Compensation Act. See generally OCGA § 34-9-11.

Jose Andrade Painting, supra; Williams v. Atlanta Family Restaurants, 204 Ga. App. 343 (419 SE2d 328) and Johnstown Financial Corp. v. Roper, 170 Ga. App. 575 (317 SE2d 634) are factually distinguishable from this case.

The trial court did not err in granting summary judgment in favor of appellees (appellant’s employer and co-employees). “[A] grant of summary judgment must be affirmed if it is right for any reason.” Hanna v. McWilliams, 213 Ga. App. 648, 651 (3) (446 SE2d 741).

3. The trial court did not err in granting summary judgment to the uninsured motorist carrier, State Farm. As a result of the exclusivity provision of OCGA § 34-9-11 (see Division 2), appellant is barred by law from procuring a judgment against the appellee tortfeasors. Pursuant to OCGA § 33-7-11 (a) (1) and (j), appellant is required to obtain a judgment against the tortfeasor(s) prior to proceeding directly against the uninsured motorist carrier. Compare Williams v. Thomas, 187 Ga. App. 527, 528-529 (370 SE2d 773). Additionally, the State Farm insurance policy, at issue, also requires that the damages for bodily injury or property damage be of the type which the insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. See Williams v. Thomas, supra.

Decided January 22, 1996.

Richard Phillips, for appellant.

Zorn & Caldwell, Jerry W. Caldwell, Karsman, Brooks & Callaway, Stanley Karsman, Trade G. Smith, for appellees.

In view of this holding, we need not address whether the vehicle in which appellant Eickhorn was riding was an uninsured motor vehicle either within the meaning of OCGA § 33-7-11 (b) (1) (D) (ii) or within the terms of the State Farm policy here at issue.

Judgment affirmed.

Johnson and Smith, JJ., concur.


author: Johnson, Judge.

text:
    A95A2129.
    LOTMAN et al. v. ADAMSON CONTRACTING, INC. et al.
    (467 SE2d 224)
   Johnson, Judge.

Harold and Tham Lotman filed a breach of contract and negligence action against Adamson Contracting, Inc., and Michael Adam-son (hereinafter collectively referred to as “Adamson Contracting”). Adamson Contracting moved for summary judgment and argued its motion on May 3, 1995. The Lotmans failed to appear at the motion hearing, but filed a brief in opposition to the motion on May 3, 1995, after the hearing took place. On May 4, 1995, the Lotmans filed a written notice of dismissal without prejudice. Five days later, the trial court entered an order granting Adamson Contracting’s motion for summary judgment. On appeal, the Lotmans argue that the trial court erred in entering summary judgment after the action had been dismissed. We agree and reverse.

“Under OCGA § 9-11-41 (a) a party may dismiss an action without prejudice by filing a written notice of dismissal at any time before verdict, if no counterclaim has been pleaded by a defendant. After this dismissal, a court has no power to order reinstatement of the action. [Cit.]” See Smith v. Mem. Med. Ctr., 208 Ga. App. 26, 28 (1) (430 SE2d 57) (1993). The voluntary dismissal filed in this case operated to divest the court of jurisdiction, after which the trial court had no authority to enter summary judgment. See id. That the trial court made the order nunc pro tunc to the hearing date was of no consequence, because at the time the written order was entered, the action had already been extinguished and the court no longer had jurisdiction. See generally Dept. of Med. Assistance v. Columbia Convales cent Ctr., 203 Ga. App. 535, 536 (1) (417 SE2d 195) (1992).

Decided January 23, 1996.

Marlow, Bozeman & Young, C. Michael Bozeman, for appellants.

Long, Weinberg, Ansley & Wheeler, Paul L. Weisbecker, K. Marc Barre, for appellees.

We realize, of course, that there is an exception to the general rule that the filing of a voluntary dismissal before verdict divests the court of jurisdiction: A plaintiff cannot dismiss an action between the time the court announces its judgment and the time the judgment is actually written and entered. Kilby v. Keener, 249 Ga. 667, 668 (293 SE2d 318) (1982). Adamson Contracting’s argument that this exception applies in this case because the trial court orally announced at the hearing its intent to grant the motion is not persuasive because it is not supported by the record. There is no transcript of the hearing, nor any legally acceptable substitute therefor, indicating that the trial court announced its decision at the hearing. In fact, the record actually suggests that no decision was announced before the dismissal was filed. In its May 9, 1995 order granting summary judgment, the trial court specifically states that in reaching its decision it considered all of the Lotmans’ pleadings, including those filed after the hearing on the summary judgment motion. Thus, the existing record simply does not warrant a departure from the general rule. Under the circumstances presented in this case, the trial court erred in entering summary judgment for Adamson Contracting after the case had been voluntarily dismissed. See Lakes v. Marriott Corp., 264 Ga. 475, 478 (448 SE2d 203) (1994).

In light of the foregoing, we do not reach the Lotmans’ remaining enumerations of error.

Judgment reversed.

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