text:
    A90A1569.
    DAY v. THE STATE.
    (399 SE2d 741)
   McMurray, Presiding Judge.

Bobby Lee Day was indicted and tried for the offenses of aggravated battery and burglary. He appeals from his conviction of aggravated battery.

Evidence was presented at trial showing that the Gwinnett County police were called to a residence where they found the victim shot in the eye. Several days later appellant and Michael R. Richey were arrested by the College Park police when the automobile driven by Richey crashed after attempting to elude an investigative stop. A pistol later identified as the weapon used to shoot the victim was found in the automobile in which appellant Day was a passenger. Sharon Cantrell testified that while she was talking to the victim on the telephone, she heard the voices of two other men, scuffling noises and a gunshot. She heard more scuffling and one of the men said, “Come on man let’s get out of here.” Appellant’s sister-in-law testified that on the night of the shooting she saw three men in a pickup truck in the vicinity of the victim’s residence, two of whom appeared to be appellant and Richey. She further testified that on the following day she saw appellant with a bandage on his hand and he told her he had injured his hand at work. Jimmy Johnson testified that he saw appellant on the evening of the shooting, and that appellant mentioned something about going over to the victim’s house to get a gun. Appellant’s hand was not bandaged when Johnson saw him. When the police arrived at the victim’s house it was in disarray and victim’s head was resting on some broken glass.

Richey was called as a witness for the State but testified that he shot the victim and that appellant was not with him. The State then attempted to impeach Richey by use of a prior statement he had given to police. Richey acknowledged he had previously told police that he and appellant had driven to the victim’s house and gone inside; that the victim complained about their entering without knocking and pulled a pistol from his boot, which appellant snatched out of his hand; that when the victim kept yelling at him, appellant shot once into the ceiling and then shot the victim once; that he had grabbed appellant by the shirt and dragged him out of the victim’s house; and, that they both got in appellant’s car and appellant drove Richey home.

Appellant did not take the stand. Appellant’s parents testified that he was with them at their house on the night of the shooting.

On appeal from the denial of his amended motion for new trial, appellant contends: (1) that there was insufficient evidence to corroborate Richey’s testimony, as an accomplice, to sustain his conviction; (2) that the trial court erred in charging the jury on the law of parties to a crime, as there was insufficient evidence to support such a charge; and, (3) that the prosecutor improperly argued facts in closing that were not in evidence. Held:

1. We find no violation of OCGA § 24-4-8. “ ‘Acknowledging that corroboration of the testimony by a single accomplice is necessary, . . . our courts have held that the corroborating, evidence itself need not be sufficient to warrant conviction, but only tend to connect and identify defendant with (the) crime. (Cit.) Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. (Cits.) [Cit.] The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said, as a matter of law, that the verdict is contrary to the evidence. (Cits.) (Cit.) [Cit.]’ Adams v. State, 191 Ga. App. 16, 18 (381 SE2d 69) (1989).” Cody v. State, 195 Ga. App. 318, 319 (1) (393 SE2d 692) (1990). The evidence presented here was sufficient to corroborate the original statement made by Richey to the police implicating appellant Day, and when viewed in the light most favorable to the verdict, was sufficient for a rational trier of fact to find appellant guilty of aggravated battery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Harris v. State, 165 Ga. App. 186 (299 SE2d 393) (1983).

2. Nor do we agree that the trial court improperly charged the jury on parties to a crime. The evidence introduced at trial established without dispute that an aggravated battery had in fact been committed, and in such case “ ‘the co-conspirators are guilty as parties to the commission of the crime under (OCGA §16-2-20).’ [Cit.]” Byram v. State, 189 Ga. App. 627, 628 (3) (376 SE2d 909) (1988). Accord Singleton v. State, 193 Ga. App. 778, 780 (3) (389 SE2d 269) (1989); Lubiano v. State, 192 Ga. App. 272, 273-274 (1) (b) (384 SE2d 410) (1989). See also Glover v. State, 192 Ga. App. 798, 800 (1) (386 SE2d 699) (1989). “[W]here there is any evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue. [Cit.]” Wiley v. State, 192 Ga. App. 808 (2), 809 (386 SE2d 523) (1989).

3. Sharon Cantrell testified that while she was talking to the victim on the telephone she heard a woman there whom she thought to be appellant’s niece, Missy Moore, and told him to slap her and get rid of her. The prosecutor argued in closing that the jury could thus infer that after the victim slapped her the niece complained to appellant Day because of their relationship, which motivated him to commit the crime. Appellant contends that Ms. Cantrell’s testimony as to his relation to Missy Moore was hearsay, had no probative value, and thus was not an established fact from which an inference could be argued by the prosecutor.

Decided December 4, 1990.

Michael Greene, for appellant.

Thomas C. Lawler III, District Attorney, Donald L. Johstono, Debra K. Turner, Assistant District Attorneys, for appellee.

“ ‘A prosecutor is permitted to argue inferences from the evidence even if such inferences are remote, illogical or unreasonable. (Cits.)’ [Cit.] The credibility of witnesses was a matter to be determined by the jury. OCGA § 24-9-80. The probability or improbability of [Ms. Cantrell’s] testimony, as well as [her] interest or want of interest and personal credibility, could also properly be considered by the jury. OCGA § 24-4-4.” Abernathy v. State, 192 Ga. App. 355, 356 (385 SE2d 25) (1989). We conclude that the prosecutor’s argument was within the bounds of the law and does not warrant reversal of appellant’s conviction.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A90A1865.
    DUDLEY v. THE STATE.
    (399 SE2d 747)
   Beasley, Judge.

Defendant appeals his three convictions of cruelty to children, OCGA § 16-5-70.

1. One of the counts of cruelty was that defendant used scalding water to cause burns to the body of a named child, who was then eight months old. When the State sought to introduce 12 photographs depicting injuries suffered by the child defendant objected on the grounds that the pictures were repetitive because there had already been evidence from the presence of the child in court and testimony as to the injuries the child suffered by the doctor who treated the victim. The State argued that the photographs, six of which were taken when the victim was first brought to the hospital and six a few days later, were offered to show the injuries, their extent and what resulted from the delay in obtaining treatment. After hearing both sides, the trial court denied the objection.

Defendant contends in argument to this court that the admission of the second six photographs was error because they were repetitious of the first six, a new ground, and because they were prejudicial, serving only an inflammatory purpose. When a defendant argues one basis at the trial and another on appeal, both arguments are lost. Brin son v. State, 191 Ga. App. 151, 152 (2) (381 SE2d 292) (1989); Floyd v. State, 188 Ga. App. 24 (1) (372 SE2d 287) (1988). See MacDonald v. MacDonald, 156 Ga. App. 565 (1) (275 SE2d 142) (1980).

Decided December 4, 1990.

Nancy A. Atkinson, for appellant.

Willis B. Sparks III, District Attorney, Sharon T. Ratley, Howard Z. Simms, Assistant District Attorneys, for appellee.

Even on the merits as to each ground, we find no error. Miller v. State, 179 Ga. App. 100, 101 (2) (345 SE2d 647) (1986); Frink v. State, 177 Ga. App. 604, 608 (3) (340 SE2d 631) (1986); Brown v. State, 250 Ga. 862, 866 (5) (302 SE2d 347) (1983); Love v. State, 259 Ga. 468 (2) (383 SE2d 897) (1989); Jones v. State, 249 Ga. 605, 608 (2a) (293 SE2d 708) (1982).

2. Defendant contends that as to the other two convictions there was a variance between the allegations of the indictment and the proof offered at trial. In view of the rule expressed in DePalma v. State, 225 Ga. 465, 469 (3) (169 SE2d 801) (1969), this argument is rejected. See Dobbs v. State, 235 Ga. 800, 801 (3) (221 SE2d 576) (1976); Kelly v. State, 188 Ga. App. 362 (2) (373 SE2d 63) (1988); Shackelford v. State, 179 Ga. App. 595, 596 (347 SE2d 346) (1986).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    A90A2048.
    GRANT v. THE STATE.
    (399 SE2d 743)
   Beasley, Judge.

Defendant appeals his convictions of burglary, OCGA § 16-7-1, and kidnapping, OCGA § 16-5-40.

1. The first enumeration of error is that the trial court erred in overruling defendant’s objection to the State’s indirectly using his prior unrelated convictions against him. Defendant was accused of breaking into a house and kidnapping his former girl friend. The victim and witnesses for the State who were relatives of the victim and resided in the same household testified that in the early morning hours, defendant entered without authorization and forced the victim at knife point to leave with him. Defendant and the victim moved through the town on foot during the night avoiding police cars. They eventually arrived at his cousin’s house where they remained until the following morning when the police chief came to the door, saw the victim and inquired where defendant was. Defendant hid in the attic of the house and eventually was forced to surrender when tear gas was used.

Testifying on his own behalf, defendant asserted the victim let him in the house and willingly accompanied him during the night. During cross-examination, defendant was repeatedly asked to explain why he hid from the police if he was not guilty of kidnapping the victim. At various times, defendant responded “for no good reason,” that he did not know, and “I ain’t got no answer for that.” Subsequently, defense counsel objected to the “entire line of questioning” on the ground that defendant was on probation, that a complaint against defendant was sufficient to “get revoked,” and defendant was in a position of having to reveal a prior conviction. The trial judge overruled the objection, but no further question as to his excuse for hiding from the police was asked.

There is no basis for reversal. First, defendant waived any error by not objecting to the testimony when offered. Mable v. State, 197 Ga. App. 751 (2) (399 SE2d 509) (1990). Second when he interposed an objection he did not move to strike the questions and responses, so he failed to utilize the method for removing offensive evidence already introduced. Fluker v. State, 184 Ga. 809 (4) (193 SE 749) (1937). Third, although his objection was overruled, no further questioning on the subject occurred, so there was no harm in the evidence that followed the objection. Henderson v. State, 227 Ga. 68, 81 (6) (179 SE2d 76) (1970) [vacated in part on other grounds 408 U. S. 938 (92 SC 2868, 33 LE2d 758)]; Bailey v. State, 157 Ga. App. 222 (1) (276 SE2d 843) (1981).

Fourth, as to the merits, defendant was being cross-examined, which may be “thorough and sifting.” OCGA §§ 24-9-20 and 64. See Leonard v. State, 146 Ga. App. 439, 442 (3) (246 SE2d 450) (1978) (physical precedent). The State was attempting to undermine his assertions of innocence by highlighting his efforts to avoid capture, but it made no effort to raise the issue of his former conviction. No reference or intimition was being made with respect to any conviction as being the unexplained and unarticulated reason for avoiding the police. The State’s focus was on the current events which, if not criminal, would not give reason for elusion.

The trial court did not abuse its discretion with regard to the scope of cross-examination. Jackson v. State, 157 Ga. App. 604, 605 (3 & 4) (278 SE2d 5) (1981).

2. The second enumeration is that the court failed to give the jury instruction on impeachment and specifically the charge that follows: “I charge you that where unworthiness of credit is absolutely established in the minds of the jury, the witness ought not to be believed, and it is the duty of the jury to disregard his testimony, unless it is corroborated, in which case you may believe the witness, it being, as a matter of course, always for the jury to determine whether a witness has or has not been in fact so impeached.” This instruction was part of a charge considered in Loomis v. State, 78 Ga. App. 153, 172 (16) (51 SE2d 13) (1948).

Decided December 4, 1990.

Hugh J. McCullough, for appellant.

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

In this case the victim testified as to where she had lived during the three months prior to October 26, 1988, the date of the charged offenses, including the fact that she had resided with her aunt the immediate month and a half before defendant broke into that home. In an effort to contradict this testimony, defendant introduced records of the food stamp administration that she only changed her address to that location two days before October 26.

“A request to charge must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence.” Teague v. State, 208 Ga. 459 (1) (67 SE2d 467) (1951). “[A] line exists between cases of impeachment (which can be any diminution of the credibility of a witness) and cases of knowing and wilful false swearing (which, when material, is perjury). The statute, accordingly, directs itself in its two parts to this division, and as to OCGA § 24-9-85' (b) . . ., it must be understood that the testimony which must be disregarded in its entirety is only that testimony which is wilfully and knowingly false.” Fugitt v. State, 251 Ga. 451, 452 (1) (307 SE2d 471) (1983).

Defendant sought to contradict the testimony of the victim. There was no showing that the victim’s testimony was wilfully and knowingly false or that the testimony was “ ‘ “such as to render the purpose to falsify manifest.” ’ ” Cargill v. State, 255 Ga. 616, 641 (30) (340 SE2d 891) (1986). The proposed charge was not proper, and the court did adequately charge on the subject of credibility of witnesses.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Deen, Presiding Judge.

text:
    A90A2271.
    MADDUX v. THE STATE.
    (401 SE2d 77)
   Deen, Presiding Judge.

Appellant was arrested in the summer of 1986 and charged with murder in the shooting of a man who was reportedly having an affair with his wife. He initially pled guilty to voluntary manslaughter and was ultimately sentenced to 20 years’ incarceration for manslaughter. His subsequent motion to withdraw his guilty plea, which was treated as an extraordinary motion for new trial (alluding to his January 1988 appearance before the Cobb County Superior Court), was denied. He had also filed an appeal from the judgment on the January 1988 proceeding.

Decided December 4, 1990.

Marvin L. Maddux, pro se.

Michael J. Bowers, Attorney General, Thomas J. Charron, District Attorney, Leonora Grant, for appellee.

The State moved to dismiss the appeal on the ground that Maddux had not complied with the legal requirements of OCGA §§ 5-6-41; 5-6-43, and 5-6-44. This motion was denied in August of 1990, and Maddux’s record was transmitted to this court. The court’s records show that Maddux has filed no enumeration of error or brief, as required by Court of Appeals Rule 27. These were due in mid-September of 1990, but nothing was forthcoming. On October 2 this court ordered appellant to file not later than October 9, 1990. The appeal was scheduled to be heard by this court on November 6, 1990, but still nothing had been filed. No request for extension of time has been filed.

With no enumeration of errors or brief before us, there is nothing on which this court can rule.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A90A2282.
    BURDETTE v. THE STATE.
    (399 SE2d 745)
   McMurray, Presiding Judge.

Via a two-count indictment, defendant was accused of rape and aggravated sodomy. He was convicted of aggravated assault with intent to commit rape and aggravated sodomy and sentenced to serve 20 years (concurrently) for each offense. Following the denial of his motion for a new trial, defendant appeals. Held:

1. In his first enumeration of error, defendant contends the trial court erred in charging the jury on the lesser included offense of aggravated assault with intent to commit rape. This contention is without merit. Since the charge was given pursuant to defendant’s request, he cannot complain. Wright v. State, 162 Ga. App. 60 (290 SE2d 163). Besides, the charge was a correct statement of the law and was applicable to the facts of this case. Terry v. State, 166 Ga. App. 632 (305 SE2d 170).

We decline defendant’s invitation to overrule Terry u. State, supra, wherein this Court held: “As the jury could find that the victim consented to the intercourse, after being assaulted by defendant, the evidence was sufficient to authorize a finding that the assault was with the intent to commit rape.” Id. at 633. In our view, the holding in Terry is logical and it remains good law.

Decided December 4, 1990.

Darel C. Mitchell, John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

2. The evidence was sufficient to enable any rational trier of fact to find defendant guilty of the offenses of aggravated assault with intent to commit rape and aggravated sodomy beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

3. The trial court did not err in permitting the arresting officer to testify that a small quantity of marijuana was found on defendant’s person at the time of his arrest. Articles found in a defendant’s possession at the time of his arrest “are admissible as circumstances connected with the arrest. Hale v. State, 159 Ga. App. 563 (284 SE2d 68).” Sweat v. State, 172 Ga. App. 712, 714 (4) (324 SE2d 561). The mere fact that the evidence may have incidentally implicated defendant in the commission of an unrelated crime does not render the evidence inadmissible. Ashley v. State, 160 Ga. App. 325 (2) (287 SE2d 321).

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


author: Deen, Presiding Judge. Beasley, Judge,

text:
    A90A2293.
    METHENY v. THE STATE.
    (400 SE2d 25)
   Deen, Presiding Judge.

After a jury trial, Robert Lee Metheny was convicted of the offense of habitual violator for operating a motor vehicle after having received notice that his driver’s license had been revoked pursuant to OCGA § 40-5-58. He appeals from the judgment entered on the conviction. Held:

1. Metheny contends that after a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), the trial court erred by failing to exclude statements, admitted in the prosecution’s case-in-chief, that he made to police officers before he was given warnings pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). The record at the Jackson-Denno hearing shows that, while on routine patrol at night, a Gwinnett County police officer observed a pickup truck off the road and stuck in the mud at the bottom of a ten-foot embankment. The vehicle was facing up the embankment with the lights on, the motor running and the wheels spinning. The driver’s door was open. The officer observed Metheny sitting behind the wheel of the truck attempting to move the vehicle. After calling for assistance, the officer wálked down the embankment to investigate the situation. He asked Metheny to step out of the vehicle and tell him what had happened. Metheny said another vehicle had run off the road, and while helping the other vehicle, his vehicle became stuck. When asked where the other vehicle was located, Metheny responded that it had left the scene. The officer asked Metheny to walk over to his patrol car, where a second officer had arrived in response to the call for assistance. At that point the first officer briefed the arriving officer on his findings and told him that, because there was no sign of another vehicle, he suspected the truck had accidentally run off the road, and also that Metheny appeared to have been drinking. Then pursuant to department custom, the ranking officer, who arrived first on the scene, turned the investigation over to the junior officer. The junior officer, who also observed signs that appellant had consumed alcohol, again asked Metheny what happened, and appellant gave the same explanation previously given. The officer then asked Metheny to produce his driver’s license and proof of insurance. After appellant could produce neither, the officer ran a computer check from his patrol car and discovered that Metheny’s license had been revoked. He then informed appellant that he was placing him under arrest for the offense of habitual violator. Metheny responded that the officer “didn’t have anything on him; that he wasn’t driving.” The officer said, “You just told me you pulled up to help someone out of the ditch.” And Metheny replied, “No, I wasn’t driving.”

It is undisputed that Metheny was not advised of his Miranda rights. Appellant objected to the admission of all statements made by appellant to the officers at the scene of the investigation and arrest. On these facts the trial court ruled that all of the statements were voluntary and admissible because: (1) they occurred in a non-custodial investigation prior to arrest to which Miranda has no application, and (2) the statements made after arrest were spontaneous and not in response to any police questioning. At trial, witnesses for the state testified as to the statements as part of the state’s case-in-chief.

Our review of the trial court’s ruling requires that we analyze four interrelated issues: (a) whether the statements were made while appellant was in police custody; (b) whether the statements were inadmissible in the state’s case-in-chief because of the failure to give Miranda warnings; (c) whether the statements were voluntary under traditional due process analysis; (d) if the statements should have been excluded, whether their admission could constitute harmless error.

(a) Only in-custody statements by the accused give rise to the issues of voluntariness and the Miranda warnings. “The test for determining whether a person is ‘in custody’ at a traffic stop is if a reasonable person in the suspect’s position would have thought the detention would not be temporary.” Hughes v. State, 259 Ga. 227, 228 (378 SE2d 853) (1989); Berkemer v. McCarty, 468 U. S. 420, 442 (104 SC 3138, 82 LE2d 317) (1984). Police officers at the scene of a traffic stop may conduct a general on-the-scene investigation, which may even require that persons be temporarily detained, without such being classified as custodial interrogation. Mason v. State, 177 Ga. App. 184, 185 (338 SE2d 706) (1985); Webb v. State, 179 Ga. App. 101, 102-103 (345 SE2d 648) (1986). Nothing the officers did prior to placing Metheny under arrest would have reasonably communicated to him that he was in custody. Testimony by the officers that Metheny would not have been allowed to leave the scene did not establish he was in custody, especially since this decision was never communicated to Metheny, and therefore could have no bearing on appellant’s perception under the Berkemer rule. Mason v. State, supra at 184-185. There was ample evidence to support the trial court’s determination that appellant was not in custody until he was formally arrested. Since the trial court’s factual determination was not clearly erroneous we must accept it. State v. Louis, 185 Ga. App. 529, 530 (364 SE2d 896) (1988). Having determined that Metheny was not in custody until his actual arrest, the remaining issues are addressed only to the statements he made to the police after he was informed of his arrest.

(b) It is undisputed that Metheny was not given the Miranda warnings prior to the in-custody statements at issue. The prosecution is barred from using any statements in its case-in-chief, whether exculpatory or inculpatory, obtained from a suspect during custodial interrogation, unless it first demonstrates that the suspect was afforded the procedural safeguards against self-incrimination known as the Miranda warnings. Miranda v. Arizona, supra at 384 U. S. 444. We have no difficulty with the first statement in which Metheny responded to being placed under arrest by stating that the officer “didn’t have anything on him; that he wasn’t driving.” Since this statement was not given in response to a question posed by police, it does not come within the definition of custodial interrogation in Miranda, and therefore it was admissible. Miranda v. Arizona, supra at 384 U. S. 444-445, 478; Delay v. State, 258 Ga. 229, 231 (367 SE2d 806) (1988). With respect to the second statement, we find that the officer’s comment directed to Metheny, “You just told me you pulled up to help someone out of the ditch,” was the functional equivalent of express questioning, which he “should know . . . [was] reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U. S. 291, 300-301 (100 SC 1682, 64 LE2d 297) (1980); Compare Zubiadul v. State, 193 Ga. App. 235, 237 (387 SE2d 431) (1989); Davis v. State, 191 Ga. App. 566, 568 (382 SE2d 396) (1989); Lowe v. State, 179 Ga. App. 377, 379 (346 SE2d 845) (1986); Williams v. State, 178 Ga. App. 581, 590-591 (344 SE2d 247) (1986) (illustrating factual circumstances falling short of custodial interrogation). In fact, the officer’s comment did elicit the response, “No, I wasn’t driving.” For purposes of Miranda analysis, it makes no difference that the thrust of the statement itself was exculpatory since the state seeks to benefit from the incriminating impact on the defendant’s credibility by contrasting this statement with other conflicting statements. The trial court committed clear error by failing to exclude this statement from the state’s case-in-chief under the principles enunciated in Miranda.

(c) We next address the issue of whether the in-custody statement admitted in violation of Miranda was, nevertheless, voluntary under traditional due process standards. Statements obtained in violation of the procedural requirements of Miranda may be found otherwise voluntary under due process standards. Green v. State, 154 Ga. App. 295, 297-298 (267 SE2d 898) (1980); see Platt v. State, 163 Ga. App. 776 (296 SE2d 113) (1982). At a Jackson-Denno hearing the due process clause requires that “the state must prove voluntariness by a preponderance of the evidence [cits.], and in order to make this determination, the judge must consider the ‘totality of the circumstances’ surrounding the statement. [Cits.] It is not merely an inquiry based solely on Miranda, although the presence of these warnings is significant in deciding the voluntariness question.” Pierce v. State, 238 Ga. 126, 129 (231 SE2d 744) (1977). “Prior to Miranda the admissibility of an accused’s in-custody statements was judged solely by whether they were ‘voluntary’ within the meaning of the Due Process Clause. [Cits.] If a suspect’s statements had been obtained by ‘techniques and methods offensive to due process’ [cits.], or under circumstances in which the suspect clearly had no opportunity to exercise ‘a free and unconstrained will’ [cits.], the statements would not be admitted.” Oregon v. Elstad, 470 U. S. 298, 304 (105 SC 1285, 84 LE2d 222) (1985); see Jackson v. Denno, supra. “Indeed, even after holding that the Fifth Amendment privilege against compulsory self-incrimination applies in the context of custodial interrogation, [cit.] and is binding on the States, [cit.] the Court has continued to measure confessions against the requirements of due process.” Miller v. Fenton, 474 U. S. 104, 110 (106 SC 445, 88 LE2d 405) (1985). “The failure of police to administer Miranda warnings does not mean that the statements received have actually been coerced, but only that courts will presume the privilege against compulsory self-incrimination has not been intelligently exercised.” Oregon v. Elstad, supra at 470 U. S. 310. In serving the Fifth Amendment right against self-incrimination, Miranda creates a presumption, irrebuttable for purposes of the state’s case-in-chief, that the statement was obtained in violation of the Fifth Amendment and should be excluded. However, the important distinction here is that the Miranda presumption does not necessarily constitute a finding that the statement was coerced. Oregon v. Elstad, supra at 470 U. S. 306-307, n. 1.; Procunier v. Atchley, 400 U. S. 446, 453-454 (91 SC 485, 27 LE2d 524) (1971). In Colorado v. Connelly, 479 U. S. 157, 167 (107 SC 515, 93 LE2d 473) (1986), the court held that, “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” Statements obtained by the use of such coercive tactics are inherently offensive to a civilized system of justice and may not be admitted for any purpose at trial. Mincey v. Arizona, 437 U. S. 385, 398, 402 (98 SC 2408, 57 LE2d 290) (1978); New Jersey v. Portash, 440 U. S. 450 (99 SC 1292, 59 LE2d 501) (1979). The circumstances of the investigation and arrest in this case reveal none of the extreme tactics identified as the hallmarks of coercive police activity offensive to fundamental notions of due process. See Oregon v. Elstad, supra at 470 U. S. 312-313, n. 3. There was no lengthy interrogation, threats of physical violence, promises or other deliberate tactics calculated to break the will of the suspect. At the Jackson-Denno hearing, the trial court’s determination based on the totality of the circumstances that the statements at issue were voluntary will not be disturbed on appeal unless clearly erroneous. Kincey v. State, 191 Ga. App. 300, 301 (381 SE2d 439) (1989); Lindsey v. State, 196 Ga. App. 67 (395 SE2d 328) (1990). We find no clear error in the trial court’s ruling.

(d) Lastly, we must determine whether it was harmless error to admit the statement obtained in violation of Miranda, but, nevertheless, voluntary under due process standards. In Chapman v. California, 386 U. S. 18 (87 SC 824, 17 LE2d 705) (1967), the court recognized that error of even constitutional magnitude may be harmless if, considering the entire record on appeal, the reviewing court finds beyond a reasonable doubt that the error did not contribute to the verdict. See Rose v. Clark, 478 U. S. 570, 576 (106 SC 3101, 92 LE2d 460) (1986); Eiland v. State, 246 Ga. 112, 116 (268 SE2d 922) (1980). Nevertheless, because some constitutional errors “necessarily render a trial fundamentally unfair,” they can never be considered harmless error. Rose v. Clark, supra at 478 U. S. 577. Any use at trial of a defendant’s involuntary statement is a denial of due process, and cannot be harmless despite otherwise ample evidence to support the conviction. Mincey v. Arizona, supra at 397-398. For example, use of a coerced confession (Payne v. Arkansas, 356 U. S. 560 (78 SC 844, 2 LE2d 975) (1958)); denial of counsel (Gideon v. Wainwright, 372 U. S. 335 (83 SC 792, 9 LE2d 799) (1963); Strozier v. State, 187 Ga. App. 16, 17 (369 SE2d 504) (1988)), or adjudication by a biased judge (Tumey v. Ohio, 273 U. S. 510 (47 SC 437, 71 LE 749) (1927)) are never considered harmless. In the absence of coercive police tactics inherently offensive to due process, we find no error in this case of the magnitude that would render the trial fundamentally unfair. Therefore, the erroneous admission of the statement may be harmless error if there was no reasonable chance that it contributed to the verdict. See Milton v. Wainwright, 407 U. S. 371, 372 (92 SC 2174, 33 LE2d 1) (1972).

Although Miranda makes no exception for exculpatory statements, “for the purpose of determining the harmful or harmless nature of the error, whether a defendant’s statement is exculpatory or incriminating is material.” Wilson v. Zant, 249 Ga. 373, 377 (290 SE2d 442) (1982). Metheny’s statement that he did not drive the vehicle was consistent with his defense at trial, which included testimony from a witness who claimed she left the scene shortly before the police arrived, and that she, not the appellant, drove the truck down the embankment. Furthermore, an investigating officer gave uncontradicted testimony that he observed Metheny behind the wheel of the truck with the engine running, the lights on and the wheels spinning. The offense of habitual violator, as defined in OCGA § 40-5-58 (c) makes it “unlawful for any person to operate any motor vehicle in this state after such person has received notice that his driver’s license has been revoked, . . .” (Emphasis supplied.) An operator is defined in OCGA § 40-1-1 (33) as “any person who drives or is in actual physical control of a motor vehicle.” In construing the difference between driving and operating a vehicle under the former driving under the influence statute, the court in Flournoy v. State, 106 Ga. App. 756, 758-759 (128 SE2d 528) (1962), concluded that while “driving” usually denoted movement of the vehicle in some direction, “operate” has a broader meaning which includes “not only the motion of the vehicle but also acts which engage the machinery of the vehicle. . . . We are of the opinion that one who is sitting under the steering wheel of a car located on a public highway with the motor running, who is in physical control of the vehicle, and who engages the lights of the vehicle, is operating the vehicle. . . .” Given the exculpatory nature of the statement and the uncontradicted testimony regarding Metheny’s operation of the vehicle, we find no reasonable possibility that admission of the statement contributed to the verdict. The error was harmless. Wilson v. Zant, supra at 249 Ga. 377; Caplinger v. State, 185 Ga. App. 476, 477 (364 SE2d 610) (1988).

2. Appellant also enumerates error in the denial of his motion for a new trial on the general grounds that the evidence presented was insufficient as a matter of law to support the verdict. We find the evidence was sufficient for a rational trier of fact to find the appellant guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided December 4, 1990.

Walter J. Clarke, for appellant.

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

Judgment affirmed.

Pope and Beasley, JJ., concur specially.

Beasley, Judge,

concurring specially.

I concur but do not agree with the entire analysis in Division 1, particularly as it relates to the statement, “No, I wasn’t driving.”

I agree that the statement preceding it was not the result of custodial interrogation. Even if the statement which the majority has made an issue of was in the nature of a response to a question, as the majority views it, it was merely a repetition or affirmation of what had been volunteered. The court did not err in its ruling that the statements were admissible, at the conclusion of the Jackson-Denno hearing.

But this statement was not put before the jury. Although it was testified to during the pretrial hearing, the state in its case-in-chief merely elicited the following:

“Q: . . . What was the next thing that happened after you told him that you were placing him under arrest for driving under the influence and habitual violator?
“A: Mr. Metheny stated to me that I had nothing on him, that he wasn’t driving the vehicle.”

That is the statement which this Court agrees was volunteered and not a response to any questioning. Defendant, in cross-examining the witness, brought out again that after defendant was placed under arrest, he told the officer that he was not driving the vehicle.

I am authorized to state that Judge Pope joins in this special concurrence.


author: McMurray, Presiding Judge. Carley, Chief Judge,

text:
    A90A0976.
    DYER et al. v. PAFFENROTH.
    (399 SE2d 710)
   McMurray, Presiding Judge.

On September 16, 1988, Donald H. Paffenroth, individually and in his capacity as a shareholder of and on behalf of MDM Associates, Inc. (plaintiff), filed a multi-count action in the Superior Court of Fulton County against Ernest W. Dyer, individually and in his capacity as an officer and director of MDM Associates, Inc., MDM Associates, Inc., and MDM Enterprises, Inc. (defendants). The action was designated Civil Action File No. D-61315. Defendants received notice of the suit shortly after it was filed, but were not served with process until September 21, 1988. Defendants denied the material allegations of the complaint and counterclaimed, alleging that plaintiff Paffenroth committed various transgressions against defendants Dyer and MDM Associates, Inc.

On August 24,1989, plaintiff dismissed his action against defendants, without prejudice, and filed a motion to dismiss defendants’ counterclaim. Plaintiff argued that the counterclaim should be dismissed because “[o]n May 5, 1989, [the Superior Court of Fulton County] entered an order in the case of Donald H. Paffenroth v. Ernest W. Dyer, et al, Superior Court of Fulton County, Civil Action File No. D-33389 which held that D-33389 was the prior pending action rather than this action which is D-61315. [Plaintiff further asserted that in] so doing the Court denied the Motion for Summary Judgment filed on behalf of the Defendants regarding civil action number D-33389 wherein they contended [that Civil Action File No. D-61315] was the prior pending action.” In response, defendant Dyer admitted that the Superior Court of Fulton County had ruled adversely to defendants in Civil Action File No. D-33389, finding that Civil Action File No. D-33389 was a prior pending suit to Civil Action File No. D-61315. However, he argued that Civil Action File No. D-33389 is not a prior pending suit because defendants were not served with process within a reasonable time after the filing of the complaint and because service of process was not made until after the filing of Civil Action File No. D-61315.

The trial court granted plaintiff’s motion to dismiss, taking judicial notice of its ruling in Civil Action File No. D-33389 that Civil Action File No. D-33389 “is a prior suit pending . . .” to Civil Action File No. D-61315. Defendants filed an appeal from this order and the trial court later filed a consent order, directing that designated portions of the record in Civil Action File No. D-33389 be forwarded to the Court of Appeals of the State of Georgia as part of the record on appeal.

Pertinent portions of the record in Civil Action File No. D-33389 show that the action was filed on July 24, 1986; that the parties are the same as the parties in Civil Action File No. D-61315 and that plaintiff’s allegations are virtually identical to the allegations of Civil Action File No. D-61315. The record also shows that service of process was perfected in Civil Action File No. D-33389 on September 21, 1988, at 9:10 a.m., the same moment service was perfected in Civil Action File No. D-61315. Held:

1. In a sole enumeration, defendants contend that Civil Action file No. D-33389 was not a prior pending suit because service was not made within five days after the complaint was filed as is required for relation back under OCGA § 9-11-4 (c). More specifically, defendants “submit that a suit is deemed commenced as of the date it is filed only if service of process is perfected diligently and within a reasonable time (five days is the statutory presumption for in state service), and that otherwise a suit is not deemed commenced until the date service of process is perfected.” Defendants thus reason that Civil Action File No. D-61315 was pending first because service was completed within five days of filing. This contention is without merit.

The five-day relation back doctrine of OCGA § 9-11-4 (c) applies in cases where service is completed outside the applicable statute of limitation. See Childs v. Catlin, 134 Ga. App. 778, 780, 781 (216 SE2d 360). Further, “[t]he time of the commencement of the suit is the date of filing as entered upon the petition, where such filing is followed by appropriate service.” Thompson v. Thompson, 214 Ga. 776 (107 SE2d 655). In the case sub judice, the statute of limitation is not an issue and there is no question that service was properly made in Civil Action File No. D-33389. Consequently, the trial court did not err in dismissing defendants’ counterclaim. Civil Action File No. D-33389 is a prior pending suit to Civil Action File No. D-61315. See OCGA § 9-2-5 (a).

2. Plaintiff has filed a motion to dismiss MDM Enterprises, Inc. as a party to this appeal, arguing that MDM Enterprises, Inc. was not a party to the counterclaim, and therefore, was not affected by the trial court’s order of dismissal. We agree.

An examination of the counterclaim indicates that MDM Enterprises, Inc. was not a party to the complaint. Consequently, since this appeal is from the dismissal of the counterclaim, MDM Enterprises, Inc. is hereby dismissed as a party-appellant.

Judgment affirmed; motion to dismiss granted.

Sognier, J., concurs. Carley, C. J., concurs specially.

Carley, Chief Judge,

concurring specially.

I concur with the majority’s conclusion that the trial court did not err in dismissing defendant’s counterclaim, but I cannot join the reasoning of the majority. Usually, a determination of the pendency of a prior suit is based upon procedural grounds. However, in this case, a court had already decided that Civil Action File No. D-33389 was the prior pending action. Thus, in this case, Civil Action File No. D-61315, appellant is attempting to collaterally attack the prior order entered in Civil Action File No. D-33389. A collateral attack is prohibited unless the order which is the subject thereof is void. OCGA § 9-11-60. The prior order in this case was clearly not void. Accordingly, the trial court was bound by the doctrine of res judicata and had no alternative but to dismiss the counterclaim in Civil Action File No. D-61315.

Decided November 15, 1990

Rehearing denied December 5, 1990

Alston & Bird, Jay D. Bennett, John E. Stephenson, Jr., for appellants.

Bedford, Kirschner & Venker, Thomas J. Venker, for appellee.

       As an eighth defense, defendants asserted that “[a]djudication of [plaintiffs] claims should be stayed by the pendency of [a] previously filed [action] between the same parties and involving the same claims, namely, Civil Action File No. D-33389 in the Superior Court of Fulton County. . . .”


author: Cooper, Judge.

text:
    A90A1462.
    CITY OF NORCROSS v. GEORGIA POWER COMPANY.
    (399 SE2d 725)
   Cooper, Judge.

This is an appeal from the order of the superior court which affirmed a decision of the Georgia Public Service Commission.

Appellant and appellee are both electric suppliers under the Georgia Territorial Electric Service Act, OCGA § 46-3-1 et seq. (the “Act”). The Act establishes assigned geographical service areas within which an assigned electric supplier has the exclusive right to provide electric service subject to certain specified statutory exceptions. At issue in this case is the interpretation of one of those exceptions — OCGA § 46-3-8 (a) — the so-called “large load” exception, which states that the consumer may choose a different electric supplier than the one assigned under the Act if the “service [is] to one or more new premises (but if more than one, such premises must be located on the same tract or on contiguous tracts of land), if [the premises is] utilized by one consumer and [has] single-metered service and a connected load which, at the time of initial full operation of the premises, is 900 kilowatts or greater. . . .” Appellant alleges that appellee is violating the Act and the “large load” exception by providing electric service to a multi-building office park located within appellant’s service territory. The premises (the “Premises”) is being developed in phases on approximately 100 acres. Phase One, at issue in this case, involves 15.7 acres and three separate leased buildings plus a conference center for use by all the tenants. The three buildings were built as “shells” and were to be completed on the interior as they were leased and occupied by tenants. Prior to beginning construction on the Premises, the developer contacted appellant regarding electricity and was told that a fee, payable in advance, would be required for underground facilities. Upon contacting appellee, the developer was told that appellee could provide the service with no up-front fee if the 900 kilowatt and the other requirements of the “large load” exception could be met. At that time, a representative of appellee made estimates and calculated that the requirements could be met and service was subsequently provided by appellee. Just prior to the administrative hearing, and well after the buildings had been completed and substantially leased and occupied, appellant’s experts performed an inspection of the Premises and determined that if all the buildings were considered together, the total connected load at that time exceeded 900 kilowatts.

The issues to be determined at the hearing were whether the Premises constituted one premises or several premises under the Act, whether the Premises are utilized by one consumer, whether the Premises have single-metered service, and whether the connected load to the Premises at the time of initial full operation was 900 kilowatts or greater. After much discussion of these issues, the hearing officer determined that the service to the Premises as provided by appellee satisfied all the requirements of the “large load” exception and found for the appellee. This decision was reiterated by the hearing officer in his written opinion on motion for reconsideration. Appellant’s application for review by the full Commission was denied, and the orders of the hearing officer became the decision of the Commission. Upon judicial review, the superior court affirmed the decisions of the hearing officer, and hence the Commission.

1. In the absence of guiding case law or specific legislative instruction, we are called upon to review the construction of the Act made by the hearing officer and the superior court. We are mindful in this task that “ ‘the cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law and then to give it that construction which will effectuate the legislative intent and purpose.’ [Cits.]” City of Calhoun v. North Ga. EMC, 233 Ga. 759, 761 (1) (213 SE2d 596) (1975). Further, we are aware that “ ‘ [i]t is an elementary rule of statutory construction that, absent clear evidence to the contrary, words should be assigned their ordinary, logical, and common meaning.’ [Cits.]” Kirk v. Lithonia Mobile Homes, 181 Ga. App. 533 (2) (352 SE2d 788) (1987). Although the legislature did not state the policy and intent behind the “large load” exception, we are guided by the stated policies leading to the creation of assigned electrical areas and suppliers and the passage of the Act as a whole, which are “(1) to assure the most efficient, economical, and orderly rendering of retail electric service within the state, (2) to inhibit duplication of the lines of electric suppliers, (3) to foster the extension and location of electric supplier lines in the manner most compatible with the preservation and enhancement of the state’s physical environment, and (4) to protect and conserve lines lawfully constructed by electric suppliers. . . .” OCGA § 46-3-2. The general restriction of competition among electrical suppliers resulting from the Act is lifted for the specific large load consumers delineated in the exception, who are granted a free choice of suppliers. See City of Calhoun, supra at Division 6. Thus, the “large load” exception, being an exception to the general rule of competitive restriction, must be strictly construed. See Dalton Brick &c. Co. v. Huiet, 102 Ga. App. 221 (2) (115 SE2d 748) (1960). After a thorough review of the record in this case, the briefs submitted by the parties, and the language of the Act and the exception, we conclude for the following reasons that the construction of the exception advanced by the hearing officer and the superior court does not comport with the legislative intent and the plain language of the Act. Consequently, we reverse.

2. We first disagree with the lower decisions on whether the Premises is utilized by one consumer and whether the Premises has single-metered service as contemplated by the legislature in formulating the “large load” exception. At issue are four separate buildings used and occupied by many different tenants. The tenants lease the spaces from the owner/developer. Although currently the buildings are leased, there is evidence in the record that options to buy have been and may in the future be offered to the tenants, so that the tenant would then become the owner of the property. The owner/developer is the entity that contracted with appellee for power and is responsible for paying the electric bill directly to appellee. The total service to the Premises is read through a single “master” meter, however each tenant’s space is separately metered and read by the owner/ developer to measure the electricity used by each tenant. The owner/ developer then bills each tenant for his pro rata share of the total bill plus other costs related to the provision of the electrical services. Considering the type of development and the arrangement for electrical services ?z a whole, and giving the terms of the statute their “ordinary, logical, and common” meaning (Kirk, supra at Division 2), we do not feel that this is the type of large load consumer meant to receive the benefits of the exception to competitive restriction inherent in the Act. Although neither the term “consumer” nor the word “utilized” is defined in the Act, the Premises cannot in substance be, or considered to be, utilized by one consumer, the owner/developer, especially in light of the evidence that the Premises was not conceived as a unified rental premises for its entire useful life. Contrary to the hearing officer, we do see a distinction between the instant situation and that of a single, multi-tenant office building that is conceived, used and will continue to be used as a unified rental premises, owned and operated by one entity. We feel that the substance of the term “one consumer” could well apply in the latter situation. Further, the metering arrangement for the Premises does not comply in substance with the single-meter requirement of the exception. The arrangement adopted and the statutory construction advanced by the hearing officer and the lower court are means to technically confer the benefits of the exception upon a premises that would not otherwise be within the contemplation of the legislature. Strictly construing the exception, we must reverse the superior court.

3. Although our opinion in Division 2 is sufficient to sustain our reversal of the lower court, we also conclude that, even if our opinion in Division 2 were otherwise, the evidence presented at the hearing was not sufficient to show that the Premises had a connected load at the time of initial full operation of 900 kilowatts or greater. Neither “connected load” nor “initial full operation” is defined in the Act. Experts testified at the hearing, and the hearing officer assumed, that “connected load” was the hard-wired, or permanent, electrical facilities designed into the building and did not include any portable electrical connections that can be plugged in or out. Also, experts testified, and the hearing officer assumed, that “initial full operation” was the time that the buildings were initially ready for occupancy. In the case of shell buildings, it was agreed by the experts that, at the time a building was available for occupancy, a prospective estimation of the average hard-wired requirements for an average tenant would have to be made to arrive at a determination of connected load. The only estimations of the amount of connected load of the Premises submitted into evidence were the calculations of appellee’s representative done prior to the commencement of construction and the inspections performed by appellant’s experts years after actual occupancy had been achieved. The calculations of appellee’s representative included a miscellaneous category of the portable load, and when this category was deleted, the total load of all the buildings was estimated at less than 900 kilowatts. The hearing officer based his decision on the testimony of the appellant’s expert that the hard-wired load of a building would not normally change over time as tenants occupied space. The officer then reasoned that what was measured immediately prior to the hearing was what was present in the building at the time of occupancy. This same expert, however, went on to testify that certain tenants do place different requirements on the hard-wired load and that the load may differ between the time that the owner/developer initially opens the premises for occupancy and the time that the premises is actually occupied by the tenants, which could be years later. Thus, there is no evidence, only the hearing officer’s supposition, that the connected load was in fact 900 kilowatts or greater when the Premises opened for initial occupancy.

Decided November 19, 1990

Rehearing denied December 5, 1990

Boyce, Thompson & O’Brien, Peter F. Boyce, Catherine M. Packwood, Hurt, Richardson, Garner, Todd & Cadenhead, Robert J. Middleton, L. Clifford Adams, Jr., Gerald W. Bowling, for appellant.

Troutman, Sanders, Lockerman & Ashmore, Robert P. Edwards, Jr., Charles F. Palmer, for appellee.

4. Finally, we disagree with the conclusion that all the buildings on the Premises constitute one “premises” as defined in the Act. It is undisputed that any one building alone would not meet the 900 kilowatt requirement. The definition of “premises” in the Act allows two or more buildings to be considered a premises provided they are, among other things, utilized by one consumer and are not separately metered. As stated in Division 2, we conclude that these requirements were not met in the instant case.

Judgment reversed.

Banke, P. J., and Birdsong, J., concur in judgment only.


text:
    A90A0103.
    GILES v. THE STATE.
    (400 SE2d 368)
   Beasley, Judge.

Giles was indicted for trafficking in cocaine, OCGA § 16-13-31 (a) (1), and possession of less than one ounce of marijuana, OCGA § 16-13-2 (b). He moved to suppress evidence of the contraband principally upon the bases that it was found in the execution of an unconstitutional and illegal civil search and seizure order issued under the Trademark Counterfeiting Act of 1984, 15 USC § 1116 (d) (1) (A), and seized pursuant to a subsequently issued illegal search warrant. The motion was denied, the misdemeanor was dead docketed, and Giles entered a negotiated plea of guilty to the lesser included offense of possession of cocaine, OCGA § 16-13-30 (a), under authority of North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970). He reserved the right to file the present appeal from the denial of suppression.

The drugs were seized in this way. Manufacturers of a certain watch brand filed suit in the United States District Court against Giles and his company, among others, alleging that defendants were making and/or selling counterfeit watches bearing the manufacturers’ trademark. The district court granted plaintiffs’ application for an ex parte seizure order under 15 USC § 1116 (d) (1) (A). The order authorized the United States Marshal to immediately seize and impound from Giles’ residence all merchandise, materials, papers, brochures and documents bearing plaintiff’s trademark or similar markings; all books, records or documents in the possession, custody or control of defendants relating to the purchase, financing, distribution or sale bearing the plaintiff’s trade name or similar to it, including any records relating to or likely to lead to information regarding the issues in the case; and all books, records or documents likely to provide information as to the source, importers, shippers, vendors, or purchasers of merchandise bearing plaintiff’s name. To accomplish seizure, the order authorized the marshal to physically open, break and enter any door, safe, entry, file, drawer, case, envelope or other container, any automobile, truck, motor vehicle, any outbuilding, or garage. Plaintiff’s local counsel familiar with the counterfeiting scheme and involved in the case were to accompany the marshal to identify the materials to be seized. Associate counsel was permitted to be present.

Two federal marshals along with two of plaintiff’s attorneys went to Giles’ residence to execute the order. A copy of it was given to Giles. The marshals seized between 40 and 50 of the suspect watches. While searching Giles’ bedroom, one marshal opened a dresser drawer and spied a leather case. Believing it might contain watches, he opened it and saw shoe polish and a clear plastic bag containing white powder resembling cocaine. He also saw in plain view in the drawer what appeared to be marijuana, marijuana seeds, and drug paraphernalia.

The marshal telephoned the county police narcotics unit and had a lengthy conversation with a detective. The marshal related that they had been ordered to seize counterfeit watches and that during the course of the search and seizure they had discovered what they suspected to be cocaine and marijuana and hashish. The detective questioned him about the federal order and about Giles. Based on the conversation, the detective prepared an affidavit and obtained a search warrant for Giles’ house from the magistrate.

The detective and her partner went to the house, she identified herself, and showed the search warrant to the marshal. The marshal in turn showed his identification and reaffirmed what he had related in the telephone call. They went to look at the suspected drugs. The detective field-tested the white powder and it was positive for cocaine. The detective seized the drugs and paraphernalia and arrested Giles for violating the Georgia Controlled Substances Act. The mixture was later found to contain 30 grams of pure cocaine.

1. Giles enumerates as error that “[t]he ex parte order entered pursuant to 15 U. ,S. C. § 1116 permitting a search of a private residence on the application of a private citizen for his aid in the enforcement of personal or property rights violates Art. 1, § 1, Para. 13 of the Georgia Constitution and also violates OCGA § 17-5-20 and the due process clause of both the state and federal constitutions and a conviction based solely on evidence seized thereby must be set aside.”

The gravamen of Giles’ challenge is to the state and federal constitutionality of the federal statute, so we transferred the appeal to the Supreme Court of Georgia. See 1983 Ga. Const., Art. VI, Sec. VI, Par. II. The Supreme Court returned the case to this Court without comment. From this, we conclude that Giles’ constitutional challenges which were within the Supreme Court’s jurisdiction are without merit. Bishop v. State, 179 Ga. App. 606, 608 (1) (347 SE2d 350) (1986).

In his argument of the enumerated error, Giles also challenges one of the affidavits in support of the 15 USC § 1116 (d) (1) (A) order by citing a subsequent allegedly inconsistent affidavit by the same affiant, the content of the order, and the extent of the search pursuant to it. However, “[i]t is . . . basic appellate practice that error argued in the brief but not enumerated as error will not be considered on appeal. [Cit.] And, enumerations of error cannot be enlarged by means of statements in the brief of counsel to include issues not made in the enumeration. [Cit.]” Anfield v. State, 188 Ga. App. 345, 346 (2) (373 SE2d 51) (1988).

2. Giles also complains that the seized contraband was illegal because it was the fruit of the county search warrant which was issued without probable cause and predicated solely on illegal entry. He references both the State and Federal constitutions but cites solely federal authority, abandoning the state ground. See Lee v. State, 177 Ga. App. 698 (340 SE2d 658) (1986).

Giles has failed to establish that the initial entry was illegal. See Division 1, supra. Furthermore, the search warrant obtained by the county detective was not without probable cause. “Information provided by police officers, arising out of an official investigation, may be used to establish probable cause for a search warrant. [Cits.]” Caffo v. State, 247 Ga. 751, 754 (2) (b) (279 SE2d 678) (1981). The detective’s ascertainment of the facts in the lengthy telephone conversation, in light of her experience and training as a narcotics officer, allowed her to assess the credibility of the call including the identity of the caller and the substance of the related information and to make and present in good faith her affidavit to the magistrate.

Even “[assuming . . . [arguendo] that the affidavit did not provide the issuing magistrate with probable cause to believe that contraband would be found in appellant’s residence, the exclusionary rule has nevertheless been ‘ “modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.” ’ United States v. Leon, 468 U. S. 897, 905 (104 SC 3405, 82 LE2d 677) (1984). ‘It is the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. . . .’” Adams v. State, 191 Ga. App. 916 (383 SE2d 378) (1989).

Decided December 5, 1990.

Victoria D. Little, for appellant.

Robert E. Wilson, District Attorney, Donald C. English, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Appellant does not substantiate with evidence his conclusory allegation that the magistrate did not act impartially and disinterestedly but instead rubber stamped the detective’s offered affidavit. Moreover, “[t]here is no evidence that the affiant was dishonest or reckless in preparing the affidavit or that [she] could not have harbored an objectively reasonable belief in the existence of probable cause to search appellant’s residence. ‘(T)he (officer’s) reliance on the magistrate’s determination of probable cause was objectively reasonable, and application of the extreme sanction of exclusion is inappropriate.’ United States v. Leon, supra at 926.” Adams, supra at 917. The trial court correctly denied appellant’s motion to suppress.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Pope, Judge. Beasley, Judge,

text:
    A90A0870.
    NELSON v. THE STATE.
    (399 SE2d 748)
   Pope, Judge.

Defendant appeals his conviction of possession of cocaine, OCGA § 16-13-30 (a), and possession of firearms during the commission of a crime involving possession of a controlled substance, cocaine, OCGA § 16-11-106 (b) (4). Defendant contends the evidence was insufficient to sustain the verdict and further argues the trial court erred in permitting the search warrant and supporting affidavit to go out with the jury.

1. Sufficiency of evidence.

After having a confidential informant make purchases from an upstairs apartment at 1955 Dunlap Avenue in East Point, the police obtained a warrant to search that address and an individual named “New York.” In order to execute the warrant, two officers broke into the apartment after knocking on the door and receiving no response. Defendant was seated in the living room in a chair on the arm of which was a loaded nine millimeter “Cobray machine pistol.” Attached to it was a 50-round clip. On a table within two feet “or less” of the chair was a loaded pistol-grip 12 gauge shotgun, crack cocaine and $780 in various denominations. Next to the chair was a loaded rifle. Ammunition, other weapons, drugs and drug paraphernalia were found scattered throughout the apartment. Most of the drugs were on the kitchen counter and in the refrigerator.

The evidence showed the apartment, was leased to a black man with a dark complexion from New York. The officer who obtained the search warrant testified the confidential informant described the suspect known as “New York” as having a light complexion. Defendant resided at another address but was the only one in the apartment when the raid occurred. Defendant argues that because he did not live at the apartment his mere presence was insufficient to warrant his convictions. But in addition to his presence, he had within arm’s reach contraband, the money and weapons. See OCGA § 16-11-106 (b) (4); McKelvey v. State, 185 Ga. App. 855, 857 (366 SE2d 231) (1988) [non-precedential]; Garvey v. State, 176 Ga. App. 268, 274 (6) (335 SE2d 640) (1985). Defendant was from New York and his wallet contained a photograph inscribed on the back “to New York.” During the search another individual sought entrance to the apartment in order to purchase crack.

A rational trier of fact was authorized to find defendant guilty of the two crimes beyond a reasonable doubt. Olsen v. State, 191 Ga. App. 763, 766 (4) (382 SE2d 715) (1989); Lewis v. State, 186 Ga. App. 349, 350 (1a) (367 SE2d 123) (1988).

2. Admissibility of evidence.

Over defendant’s objection, the search warrant and its accompanying affidavit and return were admitted into evidence. They contained a physical description of the suspect known as “New York.” Defendant argued these documents contained sworn testimony of a witness who was on the stand (the detective who obtained the search warrant) and to allow it to go out with the jury would be “like putting the witness in the jury room.”

Documents that substitute for testimony may not be taken into the jury room. Johnson v. State, 244 Ga. 295, 296 (3) (260 SE2d 23) (1979). “The reason given for not allowing them to be delivered to the jury is, that the testimony which they contain, if read and reread by the jury, would have an unfair advantage over oral testimony of the other side, by speaking to the jury more than once.” Shedden v. Stiles, 121 Ga. 637, 640 (4) (49 SE 719) (1904). Although we do not find a Georgia case involving a search warrant, in Cain v. State, 113 Ga. App. 477, 481 (5) (148 SE2d 508) (1966), this court held an arrest warrant and its affidavit may not go out to the jury. See also Spence v. State, 96 Ga. App. 19, 20 (3) (99 SE2d 309) (1957). The trial court erred in permitting the search warrant and affidavit to be sent into the jury room as an additional witness. The ruling of the trial court is not reversible, however, unless it was harmful to defendant.

In addition to the testimony of the detective who signed the search warrant affidavit, the evidence was overwhelming that defendant was the suspect known as “New York” and was in possession of the contraband and weapons, as set forth in Division 1. Thus, it is highly probable that the objectionable evidence did not contribute to the judgment and therefore the error does not require reversal. See Heard v. State, 169 Ga. App. 609 (314 SE2d 451) (1984).

Judgment affirmed.

Corley, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., and Birdsong, J., concur. Sognier, Beasley and Cooper, JJ., dissent.

Beasley, Judge,

dissenting.

I concur in Division 1, but dissent because of the holding in Division 2. The court correctly rules that the search warrant and affidavit were erroneously submitted to the jury. These documents would be in the same category as interrogatories, depositions, dying declarations and confessions, which are not permitted to go out with the jury. Walker v. State, 215 Ga. 128, 129 (2) (109 SE2d 748) (1959); Royals v. State, 208 Ga. 78, 80 (2) (65 SE2d 158) (1951); Strickland v. State, 167 Ga. 452, 460 (6) (145 SE 879) (1928); Shedden v. Stiles, 121 Ga. 637, 640 (4) (49 SE 719) (1904). Their contents orally testified to are admissible but the inclusion of the documents themselves as exhibits for consideration in the jury room is not. Davis v. State, 178 Ga. App. 760, 763 (3) (344 SE2d 730) (1986); Morrow v. State, 166 Ga. App. 883, 884 (1) (305 SE2d 626) (1983). See Gribble v. State, 248 Ga. 567, 572 (7) (284 SE2d 277) (1981).

I depart from the majority in applying the harmless error rule.

First, was the wrongly admitted evidence consistent with the theory of the defense? Lane v. State, 247 Ga. 19, 21 (4) (273 SE2d 397) (1981); Proctor v. State, 235 Ga. 720, 723 (221 SE2d 556) (1975); Heard v. State, 169 Ga. App. 609 (314 SE2d 451) (1984). Defendant was attempting to show that he was not “New York.” The affidavit tended to identify him as that individual by describing “New York” as tall and light complected. It described the confidential informant twice making controlled purchases of cocaine, inferentially from “New York,” at the location. The return listed defendant as the only person searched. This information was inconsistent with the theory of defense, i.e., mistaken identity, Lane, supra, as the State argued to the jury.

Decided December 5, 1990.

J. Robert Joiner, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Doris L. Downs, Carl P. Greenberg, Assistant District Attorneys, for appellee.

Second, is it “highly probable” that the inadmissible evidence did not contribute to the judgment? Heard, supra; Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). Because defendant’s sole defense rested on the contention that he was merely an innocent bystander, at the wrong place at the wrong time, the jury’s consideration of the affidavit during its deliberations cannot be found harmless. The law requires a new trial.

I am authorized to state that Judge Sognier and Judge Cooper join in this dissent.

       Appellant also argues that the documents contain additional evidence not testified to by the detective, plus the hearsay of an unnamed informant and the finding of probable cause by the magistrate, see Spence v. State, 96 Ga. App. 19, 21 (99 SE2d 309) (1957), but these grounds were not raised below.


author: Carley, Chief Judge. Sognier, Judge,

text:
    A90A0910, A90A0917.
    COMMERCIAL BANK & TRUST COMPANY OF TROUP COUNTY v. ANDERSON et al.; and vice versa.
    (399 SE2d 751)
   Carley, Chief Judge.

The facts, insofar as they are relevant, are as follows: Commercial Bank & Trust Company of Troup County (the Bank) brought suit on a guaranty agreement against Ray Anderson, Edward Goodwin, and Tad Moore (the Guarantors). The Bank sought to recover $94,553.15 in unpaid principal and interest, attorney’s fees and costs of collection. Answers were filed and two of the Guarantors, Anderson and Goodwin, filed counterclaims against the Bank. The counterclaims alleged that the guaranty agreement had been negligently prepared by the Bank’s agent. After discovery, the Bank moved for summary judgment. The trial court held that the Guarantors were liable on the guaranty agreement but that, under the terms of that agreement, the Bank was limited to a pro tanto one-third recovery from each. The trial court further found that genuine issues of material fact remained with regard to the Bank’s recovery of the costs of collection. On the counterclaims, the trial court granted summary judgment in favor of the Bank. In Case No. A90A0910, the Bank appeals from the trial court’s order and in Case No. A90A0917, Anderson and Goodwin cross-appeal.

Case No. A90A0910

1. The Bank enumerates as error the holding that, under the terms of the guaranty agreement, it is limited to a pro tanto one-third recovery from each Guarantor.

Under the guaranty agreement, the Guarantor “unconditionally guaranteed] the full and prompt payment when due” of a $600,000 promissory note. However, section 3 of the guaranty agreement further provided that “the right of recovery against [each Guarantor] is . . . limited to Two Hundred Thousand Dollars ($200,000.00) of the principal amount of the liabilities plus the interest on such amount and plus the expenses as applicable thereto and as applicable to this guaranty and the additions to tax as defined in Section 9 hereof.” (Emphasis supplied.) Section 9 provided that, “[ijn addition to any other obligations of [the Guarantors] under this guaranty, upon the occurrence of a determination of taxability. . ., [each Guarantor] shall pay to the Bank . . . up to one-third (%) of any additions to tax payable by the Bank and any other holder of the Note.” (Emphasis supplied.) The trial court held that these two provisions must be construed together and that, when this is done, the intent was to limit the Bank to a pro tanto one-third recovery from each Guarantor.

The above-quoted language of the guaranty agreement is clear and unambiguous. Under Paragraph 3, the Bank’s right of recovery against each Guarantor is limited to $200,000 of the $600,000 “principal amount of the liabilities” plus certain other enumerated elements, including up to one-third of the “additions to tax” as otherwise defined in Section 9. Thus, nothing in the provisions purports to limit the Bank to a one-third recovery from each Guarantor, except insofar as its ultimate recovery from each Guarantor cannot exceed one-third of the “principal amount of the liabilities” plus certain other elements, including one-third of the “additions to tax.” See generally Friedland v. C & S South DeKalb Bank, 135 Ga. App. 591, 593 (6) (218 SE2d 302) (1975). The clear and unambiguous language of the provisions is not subject to the interpretation that the Bank was limited to a pro tanto one-third recovery from each Guarantor and the trial court erred in holding otherwise. “Where the language employed by parties to a contract is plain, unambiguous, and capable of only one reasonable interpretation, no construction of the contract is required to ascertain the intention of the parties. [Cit.]” South Atlanta Assoc. v. Strelzik, 192 Ga. App. 574, 575 (1) (385 SE2d 439) (1989).

2. The trial court’s denial of the Bank’s motion for summary judgment as to its recovery of $3,466.28 as the “costs of collection” is enumerated as error. In support of its motion the Bank submitted the affidavit of one of its officers who averred that $3,466.28 was the total amount of expenses that the Bank had incurred in collecting the indebtedness, exclusive of attorney’s fees, but who did not otherwise indicate what specific expenses were included in that claimed amount. The trial court denied the bank’s motion on the ground that there was “no evidence of what the expenses were.”

We note at the outset that there is some question whether, as a general principle of Georgia law, attorney’s fees and “costs of collection” are deemed to be synonymous or independent terms and whether, therefore, the Bank can recover any amount of the “costs of collection” as a separate and distinct element from attorney’s fees.

There is neither controlling nor persuasive authority for the legal proposition that the terms are generally deemed to be independent rather than synonymous. Ray v. Pease, 97 Ga. 618 (25 SE 360) (1895) merely holds that attorney’s fees incurred in resisting the debtor’s efforts to enjoin the creditor’s suit on the note are recoverable. Thus, Ray clearly “dealt with recovery of attorney’s fees rather than other costs of collection.” Tobler v. Yoder & Frey Auctioneers, 462 FSupp. 788, 795 (S.D. Ga. 1978). Tobler itself is not only a non-binding federal decision, it is not even persuasive authority for the legal proposition that the terms are generally deemed to be independent rather than synonymous. Tobler addresses only the recoverability of the “costs of collection” as specifically authorized under former OCGA § 44-14-2 (a) and does not recognize the general recoverability of the “costs of collection” as a separate and distinct element from attorney’s fees in any and all suits on a note or guaranty which may happen to contain a provision mentioning both. Likewise, OCGA § 11-3-106 (1) (e) merely provides that the existence of a provision whereby the debtor agrees to pay both the “costs of collection” and attorney’s fees in the event of default will not otherwise serve to render a note non-negotiable. Nothing in that statute has any direct bearing on the entirely separate issue of the extent to which such a provision is otherwise properly construable as imposing a liability upon the defaulting debtor.

There is, however, persuasive authority which does directly address the issue and which holds that the two terms are generally deemed to be synonymous rather than independent. “In our opinion, the terms ‘cost of collection’ and ‘attorney’s fees’ . . . mean one and the same thing, and the use of both of them imposes no other or greater burden upon the maker of the notes than would the use of either of them alone. ... ‘In a strict legal sense “collection fees” might be a broader term than “attorney’s fees,” for “collection fees” might embody expenses involved in endeavoring to collect said note by some person other than a licensed attorney and so this might be true of “costs of collection”; however, the courts, in determining the meaning of these stipulations, so far as we have been able to ascertain, have all treated them as synonymous terms when used in promissory notes and holding that it was a provision or stipulation to reimburse the payee and his assignees for an attorney’s fee’ ” (Emphasis supplied.) Wood v. Ferguson, 230 P 592, 594 (1) (Mont. 1924).

However, there is ultimately no need to resolve the legal issue of whether attorney’s fees and the “costs of collection” are synonymous and can be recovered independently in the instant case. Even assuming that the terms are not synonymous and that the Bank is otherwise entitled to collect both attorney’s fees and the “costs of collection,” the trial court’s ruling was nevertheless correct because the Bank made no factual showing to authorize the grant of its motion for summary judgment seeking $3,466.28 as the amount of the recoverable “costs of collection.”

The mere fact that the bank may have incurred $3,466.28 in “expenses” does not, in and of itself, demonstrate that that amount is necessarily legally recoverable as the “costs of collection.” As the trial court correctly held, there is no evidence as to what expenses are included in the $3,466.28 figure and the affidavit constitutes no more than the unsubstantiated conclusion of the affiant that that specific amount represents the “costs of collection” that may otherwise be legally recoverable by the Bank. All or a portion of the $3,466.28 may represent non-legal expenses, such as a charge for the administrative time expended by employees of the Bank in attempting to “collect” the indebtedness before the matter was turned over to an attorney. Such non-legal expenses certainly would not be recoverable pursuant to a contractual provision regarding reimbursement for the “costs of collection,” but would constitute only a non-recoverable element of the administrative overhead of the creditor. If such administrative expenses were recoverable as the “costs of collection” in a suit to recover on a note or other contract, there would be no limit on the types and amounts of expenses that could be claimed and the recoverable “costs of collection” could easily exceed the amount of the unpaid indebtedness even though the amount of recoverable attorney’s fees is otherwise statutorily limited to a percentage of the unpaid indebtedness by OCGA § 13-1-11. No court in this state has ever approved the recovery of non-legal expenses as the “costs of collection.” See Whitaker v. Trust Co. of Columbus, 167 Ga. App. 360, 362 (2) (306 SE2d 329) (1983), wherein the creditor’s affidavit showed that, pursuant to former OCGA § 44-14-2 (a), it had “incurred total costs of litigation” in a specified amount. (Emphasis supplied.) Tobler v. Yoder & Frey Auctioneers, supra at 798 (14), holding that, pursuant to former OCGA § 44-14-2 (a), the phrase “ ‘all costs of collection including 15% attorney’s fees’ means expense incurred in employing an attorney to collect the indebtedness due on the note, or, as in this case, cost of litigation in which the mortgagee has to take part... to protect his security interest.” (Emphasis supplied.)

It is immaterial that no effort was made by the Guarantors to determine what “expenses” were included in the $3,466.28 that the Bank was claiming as the recoverable “costs of collection.” The instant case was before the trial court on a motion for summary judgment. Compare Tobler v. Yoder & Frey Auctioneers, supra. Accordingly, there was no burden whatsoever in the Guarantors unless and until the Bank met its initial burden of showing that no genuine issue of material fact remained as to its recovery of $3,466.28 as the “costs of collection.” The affidavit submitted in support of the Bank’s motion did not in any way support or otherwise indicate that some or all of the $3,466.28 represented legal expenses rather than non-legal expenses. Compare Whitaker v. Trust Co. of Columbus, supra, wherein the creditor’s motion for summary judgment was supported by attached documents and records. There is no dispute that the Bank’s affiant has personal knowledge of the expenditure of $3,466.28. Compare Griffin v. Citizens Bank of Ashburn, 177 Ga. App. 771 (341 SE2d 298) (1986); Thomasson v. Trust Co. Bank, 149 Ga. App. 556 (254 SE2d 881) (1979). However, in the absence of some evidence adduced by the Bank as to what expenses were included in the $3,466.28 that it was claiming, the burden never shifted to the Guarantors to demonstrate that some or all of the $3,466.28 may not have been legally recoverable as to the “costs of collection.”

Accordingly, the trial court correctly denied the Bank’s motion for summary judgment seeking the specific amount of $3,466.28 as the recoverable “costs of collection.”

Case No. A90A0917

3. In related enumerations of error, Anderson and Goodwin urge that genuine issues of material fact remain as to their liability to the Bank on the guaranty agreement and as to the Bank’s liability to them on their counterclaims.

The specific contention is that, under the evidence of record, it is for the jury to determine whether a confidential attorney-client relationship existed between themselves and the Bank’s agent who drafted the guaranty agreement. However, our review of the record demonstrates that no such jury issue remains and that the trial court did, therefore, correctly grant the Bank’s motion for summary judgment both as to Anderson’s and Goodwin’s liability on the guaranty agreement and as to its liability on their counterclaim. See generally Guillebeau v. Jenkins, 182 Ga. App. 225, 229 (1) (355 SE2d 453) (1987).

4. The remaining enumerations of error have been considered and found to be without merit.

Judgment in Case No. A90A0910 affirmed in part and reversed in part. Judgment in Case No. A90A0917 affirmed.

Deen, P. J., Mc-

Murray, P. J., Birdsong, Pope and Cooper, JJ., concur. Beasley, J., concurs in judgment only. Banke, P. J., and Sognier, J., dissent.

Sognier, Judge,

dissenting.

I respectfully dissent. Two issues are raised in Division 2 of the majority opinion:. the legal issue whether costs of collection, other than attorney fees, are recoverable; and the factual issue whether the Bank was required to produce a sworn statement itemizing those costs in order to recover them. After an extensive discussion of the legal issue, the majority renders that language obiter dicta by pretermitting the entire legal issue and resolving the appeal on the factual basis that the Bank’s affidavit was insufficient. As a result, while the parties to this appeal now know an itemized affidavit is re - quired, they have no idea what costs they need to prove or indeed if those costs can be recovered once proved. As it now stands, the Bank does not know whether or not filing an affidavit itemizing non-attorney fee costs is a futile gesture, and the trial court has no guidance on how to rule upon the Bank’s claim for costs of collection once the itemized affidavit is before it. Rather than place upon these parties the expensive and time consuming burden of appealing this matter once again to this court (assuming that the losing party considers it financially worthwhile to appeal a matter involving only $3,466.28), in the interest of judicial economy this court should resolve the legal issue now, and I dissent as to the majority’s failure to do so.

(1) On the legal issue, I would hold that costs of collection are not synonymous with attorney fees and are recoverable as separate and distinct expenditures incurred by the Bank. While there is a dearth of Georgia law on the precise subject of costs of collection, the appellate reporters are filled with opinions asserting the basic rule that contracts must be interpreted “so as to give a reasonable, lawful and effective meaning to all manifestations of intention by the parties rather than an interpretation which leaves a part of such manifestations unreasonable or of no effect. [Cits.]” Central Ga. &c. Corp. v. Ga. Power Co., 217 Ga. 171, 173 (121 SE2d 644) (1961). I find that rule applies here and mandates that we hold that costs of collection other than attorney fees are recoverable.

In the case sub judice, the guarantors contracted to pay “all expenses paid or incurred by Bank in endeavoring to collect the liabilities or any part thereof from [QC], including attorney’s fees, of fifteen per cent (15%) of the total amount sought to be collected if the Bank endeavors to collect from the Debtor by law or through an attorney at law.” To construe this language as providing that the Bank could recover only attorney fees would not only render superfluous most of the language of this provision, it would also require actively ignoring the “including attorney’s fees” language. This court is obligated, when construing contracts, to favor the construction which gives meaning and effect to all of the terms of the contract over the construction which nullifies or renders meaningless a part of the language therein. See Brooke v. Phillips Petroleum Co., 113 Ga. App. 742, 744 (2) (149 SE2d 511) (1966). Rather than nullify the above language in the contract executed by the parties to this appeal by construing it, as the majority hints it would, as referring solely to attorney fees, I would hold that the above provision encompasses non-attorney fee expenses incurred by the Bank. (Such costs of collection would, of course, be subject to a challenge on the ground that the expenses were unreasonable or were not incurred. Rattray v. Banks, 31 Ga. App. 589, 590 (121 SE 516) (1923).) Accordingly, I cannot agree with the majority that a 1924 Montana case is persuasive authority for rendering meaningless the contractual language employed by parties in the case at bar.

(2) On the factual issue, I would hold that the Bank carried its burden of showing that there is no genuine issue as to any material fact on its claim for costs of collection. Because the cost of an item is a matter of fact, unlike the value of an item, which is a matter of opinion, see, e.g., Soni v. Coppedge, 159 Ga. App. 889 (285 SE2d 604) (1981), cost can be proved on motion for summary judgment by the averments made on personal knowledge by a competent affiant. OCGA § 9-11-56 (e). In the case at bar, the Bank carried this burden by submitting the affidavit of its vice president, Lamar Loftin, who averred that he had personal knowledge of the costs incurred by the Bank in collecting the indebtedness and that excluding attorney fees that amount was $3,466.28. Because Loftin possesses personal knowledge of the amounts incurred, I cannot agree with the majority that his averment is a “unsubstantiated conclusion” merely because he totalled those amounts instead of detailing each individual expense of which he had knowledge.

The majority does not deny that Loftin had personal knowledge of the non-attorney fee costs the Bank incurred. It cannot be denied that Loftin expressly averred that attorney fees were excluded from the claimed amount of costs. Unlike the situation in cases such as Thomasson v. Trust Co. Bank, 149 Ga. App. 556 (254 SE2d 881) (1979) and Griffin v. Citizens Bank of Ashburn, 177 Ga. App. 771 (341 SE2d 298) (1986), the guarantors introduced no opposing affidavits to challenge the affiant’s statements that he had personal knowledge of a specific amount so as to raise any issue involving the requirements of OCGA § 24-3-14 as to business records. See Whitaker v. Trust Co. of Columbus, 167 Ga. App. 360, 361-362 (1), (2) (306 SE2d 329) (1983), in which we upheld the grant of the bank’s motion for summary judgment which, though supported by documents not admissible at trial because they were not identified by clerk of the court as custodian, see OCGA § 24-5-31, was nonetheless proper because of the bank president’s averment of personal knowledge in his affidavit.

Despite all this, the majority finds the affidavit insufficient based on its supposition that Loftin’s figure as to the costs of collection incurred by the Bank may have included certain non-legal expenses which the Bank could not recover. I have two problems with this. First, the majority cites no authority for its position that on motion for summary judgment this court can reject an uncontroverted affidavit, which contains absolutely nothing from which any reasonable inference can be drawn that improper amounts were included in the claimed costs, merely because that affidavit does not affirmatively negate the possibility that non-recoverable costs were included. The Bank has introduced documents showing it was contractually entitled to recover costs of collection upon the debtor’s default, it has adduced evidence that default has occurred, and it has produced a sworn statement that $3,466.28 is the amount of costs it incurred. I cannot agree with the majority that the Bank’s affidavit must be presumed incorrect or that the Bank, in the absence of any inferences in the record or any challenges to the Bank’s averments, must carry the burden of coming forward with evidence to prove every conceivable negative. See generally Baldwin County Hosp. Auth. v. Coney, 188 Ga. App. 339, 340-341 (1) (373 SE2d 252) (1988).

More importantly, however, the majority bases its holding on its concern that Loftin possibly included in the total figure such items “as a charge for the administrative time expended by employees of the Bank,” which the majority holds “would not be recoverable pursuant to [the costs of collection provisions contracted for by the parties to this appeal] but would constitute only a non-recoverable element of the administrative overhead.” (Original emphasis deleted; emphasis supplied.) The majority’s objection to the Bank’s recovery of such hypothetical expenses is not based on the legal construction to be given the contractual language here. Instead, the majority indicates that these “non-legal expenses” are not recoverable because such amounts “could easily exceed the amount of the unpaid indebtedness.” Since the indebtedness in this case exceeds the claimed costs of collection by over $90,000, it is apparent that the majority’s objection to the Bank’s recovery of these costs is based on some unexpressed public policy consideration. It is well established that parties in the State of Georgia are free to contract on any terms and about any subject matter in which they have an interest unless prohibited by statute or public policy. Brown v. Five Points Parking Center, 121 Ga. App. 819, 821 (1) (b) (175 SE2d 901) (1970). There is no statute prohibiting parties from contracting for non-attorney fee collection costs or limiting the amount recoverable by some percentage amount, as is the case with attorney fees. OCGA § 13-1-11. By declaring that the parties to this contract cannot have contracted for the Bank to recover administrative overhead expenditures incurred in collecting an indebtedness, the majority is sub silentio impairing these parties’ right to contract. Since I do not find the majority is exercising the “extreme caution” required before declaring a contractual provision void as against public policy, see Emory Univ. v. Porubiansky, 248 Ga. 391, 393 (282 SE2d 903) (1981), quite aside from the fact that it does not appear that this case falls into that category of cases that are “ ‘free from doubt and where an injury to the public interest clearly appears’ ” (emphasis supplied), Phenix Ins. Co. v. Clay, 101 Ga. 331, 332 (28 SE 853) (1897), so as to justify voiding the provision as violative of public policy, see Brown, supra at 821 (1) (b), I cannot agree with the majority that the non-itemized costs incurred by the Bank here may include items not recoverable under the contract.

Decided December 5, 1990.

Daniel, Hadden & Meadors, A. E. Daniel III, for appellant.

H. J. Thomas, Jr., Willis, McKenzie & Long, D. Ray McKenzie, for appellees.

Therefore, because the Bank established its entitlement to the claimed expenses and because the guarantors failed to carry their burden by challenging the reasonableness of the expenses by controverting the Bank’s affidavit or by otherwise adducing facts to create a genuine issue of material fact for jury consideration, I would reverse the trial court’s denial of the Bank’s motion for summary judgment as to those expenses.

I am authorized to state that Presiding Judge Banke joins in this dissent.