author: Smith, Judge.

text:
    A96A2271.
    A96A2272.
    DUGGAN v. THE STATE. MATHESON v. THE STATE.
    (483 SE2d 373)
   Smith, Judge.

Appellants Peter Martin Duggan and Robb T. Matheson were involved in a two-car collision that resulted in the death of the victim, a passenger in Matheson’s vehicle. Duggan was indicted for homicide by vehicle in the first degree by reckless driving, homicide by vehicle in the first degree by driving under the influence, leaving the scene of an accident, driving under the influence (less safe), and reckless driving. Matheson. was indicted for two counts of homicide by vehicle (reckless driving and driving under the influence), driving under the influence (less safe), and reckless driving.

At trial, the jury found Duggan guilty of vehicular homicide based on reckless conduct, failure to remain at the scene of an accident, driving under the influence of alcohol, and reckless driving. He was acquitted of vehicular homicide based on DUI. Matheson was likewise acquitted of vehicular homicide/DUI; he was found guilty of vehicular homicide/reckless conduct, driving under the influence of alcohol, and reckless driving. Appellants’ motions for new trial were denied, and they appeal.

1. Matheson raises the general grounds as to his convictions for driving under the influence and homicide by vehicle based on reckless driving. Construed to support the jury’s verdict, the evidence shows that Duggan, Matheson, the victim, and a fourth individual, Anderson, embarked after work on an evening of drinking to celebrate Anderson’s birthday. After drinking beer at the home of two participants, they traveled in two cars to a local bar where the drinking continued. Conflicting accounts were presented concerning how much they had to drink. Matheson insisted in a statement to police and a statement to the victim’s attorney that he was the “designated driver” and was drinking “lightly,” but testimony from other witnesses and Matheson’s admissions authorized the jury to conclude that he had five or six beers and drank at least one shot of Jagermeister; a liqueur. The other participants were also drinking heavily as well as smoking marijuana. When Anderson left the bar some time after midnight, in his opinion, all the men were “high.”

The remaining three men “closed the place down” at approximately 4:30 a.m., according to Matheson, and decided to drive to another bar which remained open around the clock. Duggan drove one car while Matheson drove the other with the victim “passed out” in the front seat. They drove side by side along the downhill curving ramp from 1-285 east to 1-85 south at speeds between 70 and 80 mph, although the speed limit was 55. Duggan claimed that Matheson attempted to pass him on the ramp, lost control, and hit his car. Matheson, on the other hand, claimed that Duggan attempted to pass him and “bumped” his car, causing him to lose control. Matheson’s car rolled repeatedly, ejecting the victim and crushing him to death.

Duggan fled the scene, although he insisted at trial that he left to get help. The investigating officer testified that Matheson was very talkative, red-eyed, very nervous, and smelled of alcohol. At approximately 9:00 the same morning, Matheson was treated at the hospital by a nurse who noted that he still smelled of alcohol. Matheson at first told police that he “just lost control,” then told the victim’s attorney that he was struck by a mysterious “big white car.” Ultimately he “came clean” to the attorney and revealed Duggan’s involvement.

On appeal, Matheson seeks to impeach Anderson and discredit his testimony regarding the events of the evening, pointing to inconsistencies and conflicts in Anderson’s testimony and that of other witnesses. This court, however, cannot weigh the evidence or determine witness credibility. OCGA § 24-9-80; Powell v. State, 218 Ga. App. 556, 557 (462 SE2d 447) (1995). With respect to his conviction for DUI, Matheson admitted that he was drinking on the night in question, and the only question was whether he had consumed alcohol to the extent that he was a less safe driver.

Driving under the influence of alcohol may be shown by circumstantial evidence, if the evidence excludes any reasonable alternative hypothesis except that of guilt. Posey v. State, 215 Ga. App. 565, 566 (2) (451 SE2d 463) (1994). Matheson offered no alternative explanation for his condition at the scene or at the hospital several hours later, or for the testimony that he had consumed a substantial quantity of alcohol. “Evidence as to the manner of driving, including excessive speed, may be taken into account where there is evidence that the defendant has been drinking, for the purpose of determining whether or not his manner of driving shows him to have been affected by the intoxicant to the extent that he drives less safely and carefully than he might otherwise have done, and for this purpose evidence of travel in excess of the legal rate of speed may be considered.” (Citation and punctuation omitted.) Collins v. State, 177 Ga. App. 758, 759 (2) (341 SE2d 288) (1986).

The cases relied upon by Matheson are distinguishable. In Groom v. State, 187 Ga. App. 398, 400 (370 SE2d 643) (1988), no one testified to the time span over which the accused consumed alcohol or the quantity he consumed. There was no testimony that the defendant was under the influence of alcohol at any time, and no one observed him at the scene because he fled before the accident was discovered. In Davis v. State, 206 Ga. App. 647 (426 SE2d 267) (1992), the accused denied drinking and presented a negative blood alcohol test. In Clay v. State, 193 Ga. App. 377 (387 SE2d 644) (1989), the accused denied drinking other than the night before the incident and presented witnesses who testified that he had not consumed alcohol or shown any signs of intoxication on the morning of his arrest and that his eyes were normally red.

In this case, testimony was presented that Matheson had been drinking, was driving well in excess of the speed limit, and attempted to pass another vehicle on what he knew to be a sharp curve, causing the collision. This provided evidence, albeit circumstantial, that Matheson was a less safe driver at the time of the collision. Gilbert v. State, 262 Ga. 840, 841 (1) (426 SE2d 155) (1993).

With respect to Matheson’s conviction for vehicular homicide based on reckless driving, evidence was presented that, after consuming alcohol, he drove at speeds of 20 to 25 miles over the speed limit and attempted to pass another vehicle on a sharp downhill curve but was unable to stay in his lane. Viewed in the light most favorable to the verdict, sufficient evidence was presented to enable a rational trier of fact to find that Matheson was guilty of the offenses charged beyond a reasonable doubt. Mote v. State, 212 Ga. App. 551 (1) (442 SE2d 799) (1994); McNabb v. State, 180 Ga. App. 723, 725 (4) (350 SE2d 314) (1986).

2. Matheson also contends the trial court mischaracterized evidence and overemphasized the importance of testimony of witnesses for the State in its pre-evidentiary statement to the jury. In its precharge, the trial court stated that “legal evidence consists of two things and only two things. One of those will be sworn testimony under oath from the witness stand by those witnesses subpoenaed by the State, because the State has the burden of subpoenaing witnesses, bringing them into court and having them testify. But anyone who is called as a witness, takes the stand and testifies under oath is giving evidence that you may consider during the trial of this case.” Because of the uncertainty as to whether a defendant will present evidence, it is probably unwise to refer to the source of evidence in a pre-evidentiary instruction. We note, however, that the statement complained of was given as the trial court instructed the jury of the State’s burden to prove its case. The trial court also referred to “anyone who is called as a witness” and reiterated in its main charge that “[ejvidence includes all of the testimony of the witnesses and the exhibits admitted during the trial of the case.” Any verbal slip in the preliminary charge was thus corrected. See Malone v. State, 219 Ga. App. 728, 730 (2) (466 SE2d 645) (1995). Moreover, Matheson deprived the trial court of any opportunity to correct the asserted error because he failed to make a contemporaneous objection. Id. at 729 (2).

Matheson also contends the trial court’s main charge was inadequate to correct the complained-of error in its pre-evidentiary statement, in effect asserting that a curative instruction should have been given. Matheson, however, never requested a curative instruction or a mistrial. Once again, he failed to give the trial court the opportunity to correct the asserted error. Id.

3. Both Matheson and Duggan enumerate as error the trial court’s charge that “the law does not permit jurors in arriving at your verdicts to be governed by sympathy or prejudice. You may not, therefore, render a verdict in this case based upon sympathy for any party or prejudice against any party. Any verdict that you return must be supported by the evidence produced at trial without in any way being affected by either sympathy or prejudice.”

If circumstances exist that may unduly arouse the jury’s emotions of prejudice, hostility, or sympathy, the trial court may in its discretion deliver an appropriate charge. Emory Univ. v. Lee, 97 Ga. App. 680, 698 (104 SE2d 234) (1958) (citing Johnson v. State, 128 Ga. 102 (2) (57 SE 353) (1907), and Powers v. State, 138 Ga. 624 (5) (75 SE 651) (1912)). See also Dill v. State, 254 Ga. 17, 18 (325 SE2d 765) (1985); compare Legare v. State, 250 Ga. 875, 877-878 (2) (302 SE2d 351) (1983) (“sympathy or prejudice” charge incorrect in context of jury’s deliberations on death penalty because sympathy relevant to consideration of mitigating factors in recommendation to mercy).

The trial court here clearly instructed the jury not to be influenced by sympathy or prejudice for or against any party in the case. Given the possible hostility aroused by DUI offenders, possible feelings of sympathy for the deceased and his family, and testimony that appellants gave false information to the police and others and that Duggan left the scene, ample basis existed for the trial court to give this charge. Overall, the charge may well have been of more benefit than harm to appellants; in fact, in another part of his brief, Duggan argues that the jury was unduly swayed by sympathy for the victim.

Appellants also complain that this charge deprives them of their right to an acquittal purely on the basis of sympathy. This contention has no merit. While the jury does possess a de facto power of nullification and may acquit the defendant regardless of the strength of the evidence against him, it is nevertheless the jury’s duty to convict if the evidence proves the defendant guilty beyond a reasonable doubt. Cargill v. State, 255 Ga. 616, 642 (30) (d) (340 SE2d 891) (1986). The trial court may never direct a verdict of guilty, Bryant v. State, 163 Ga. App. 872 (1) (296 SE2d 168) (1982), but it may refuse to charge on the principle of jury nullification and may limit jury argument on that point. Andrews v. State, 222 Ga. App. 129, 130 (1) (b) (473 SE2d 247) (1996). It follows that the trial court may give a charge properly tailored to and authorized by the evidence, even if that charge arguably has a tangential effect on the jury’s inclination to acquit on the basis of sympathy alone. The trial court did not err in giving this charge to the jury.

4. Both Matheson and Duggan enumerate as error the trial court’s charge on lesser included offenses. The charge complained of follows in substance the pattern given in Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II, p. 15 (1991). There is no merit in appellants’ contention that the charge foreclosed or limited the jury’s consideration of the lesser included offense. Woods v. State, 208 Ga. App. 565 (1) (431 SE2d 167) (1993). Appellants’ contention that the trial court demanded unanimity on the greater offense, in violation of Cantrell v. State, 266 Ga. 700 (469 SE2d 660) (1996), is without basis in fact. We have carefully reviewed the charge, and the trial court “did not intimate that a court can insist upon unanimous agreement on a greater offense before consideration of a lesser offense.” Id. at 702.

5. Both Matheson and Duggan claim the trial court “continuously demeaned the importance of the jury instructions and demeaned the importance of the law to appellant’s jurors.” Citing no relevant authority, they contend that the trial court was “shunning its responsibility and the importance of explaining the law” to the jury by allegedly instructing the jurors to ignore the charge given. We have carefully reviewed the instructions complained of, and find that the trial court’s statements cannot fairly be construed as the appellants contend. Reading the charge as a whole, the trial court fully and fairly instructed the jury on the relevant principles of law and their duty as jurors. See generally Langston v. State, 208 Ga. App. 175, 177 (430 SE2d 365) (1993).

6. In Case No. A96A2271, Duggan complains that the trial court made improper statements to the jury. During the State’s closing argument, Matheson’s brother made audible negative comments directed at the prosecutor. The record explicitly shows that “the jury was excused for an overnight recess at 7:15 p.m.” The trial court then asked, “is there anything else from the attorneys before we break?” The court then called Matheson’s brother forward to admonish him, making the comment complained of during the admonition. While these comments might have been inappropriate in the presence of the jury, it is apparent from the record that they were not made until after the jury was excused. See Dukes v. State, 186 Ga. App. 773, 774 (3) (369 SE2d 257) (1988).

Duggan argues that a closing notation from the court reporter at the end of the transcript volume, “jury was excused and an overnight recess was had,” shows that the jury was not excused until later. In light of the earlier notation giving a precise time of dismissal, this general statement appears to be mere surplusage or a reporter’s inadvertent repetition. There is nothing in the record to indicate that jurors were in fact still in the courtroom at the time; or that, if they were, they heard any of the judge’s comments to Matheson’s brother. While Duggan also enumerates as error the failure of his trial counsel and his counsel on motion for new trial to object to this comment, the fact that no objection was raised by Duggan’s counsel or by counsel for Matheson (who was most affected by the misconduct of his brother) is consistent with the conclusion that the jury had already been excused. Also consistent with this conclusion is the trial court’s inquiry for any motions or other matters to be taken up with counsel before Matheson’s brother was reprimanded, as such matters would have been discussed outside the presence of the jury.

7. Duggan’s two enumerations of error complaining of other comments by the trial court both assert at least two separate errors: the trial court’s allegedly improper comment and ineffective assistance of counsel arising out of failure to object to the alleged error. “OCGA § 5-6-40 requires that enumerations shall set out separately each error upon which relied. When an appellant argues more than one error within a single enumeration, this Court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned. We elect in our discretion to review none of these multiple assertions of error.” (Citations and punctuation omitted.) White v. State, 221 Ga. App. 860, 861 (1) (473 SE2d 539) (1996).

8. Duggan contends that Count 5 of the indictment charged him with misdemeanor homicide by vehicle and that his sentence for felony homicide by vehicle therefore must be reversed. This contention has no merit. Duggan did not assert any defect in the indictment until after his conviction and accordingly cannot challenge it now unless the alleged defects in the indictment are so great as to cause the indictment to be absolutely void. State v. Eubanks, 239 Ga. 483, 485-486 (238 SE2d 38) (1977); Ivie v. State, 151 Ga. App. 496, 497 (2) (260 SE2d 543) (1979). The indictment charged, in relevant part, that Duggan “did, without malice aforethought, cause the death of another person . . . through the violation of [OCGA §] 40-6-390 Reckless Driving by driving ... a moving vehicle, at a speed exceeding the maximum speed limit on the curved ramp from Interstate 285 East to Interstate 85 South in reckless disregard for the safety of persons and property.” The indictment directly tracks the language of OCGA § 40-6-393 (a) and is sufficient to charge Duggan with felony vehicular homicide. State v. Black, 149 Ga. App. 389, 391-392 (4) (254 SE2d 506) (1979), relied on by Duggan, is inapposite for several reasons. Not only did Black make a timely challenge to the indictment, it was subject to special demurrer because it failed either to cite the underlying Code section or to include its crucial language “in reckless disregard for the safety of persons or property.” Id. This enumeration of error is without merit.

Decided March 7,1997.

Wolfe & Steel, Brian Steel, for appellant (case no. A96A2271).

B. Thomas Cook, Jr., for appellant (case no. A96A2272).

J. Tom Morgan, District Attorney, Robert M. Coker, Benjamin M. First, Assistant District Attorneys, for appellee.

9. In Duggan’s remaining enumerations of error, he asserts ineffective assistance by both trial counsel and counsel on his motion for new trial. These assertions focus on the failure of counsel to object to, or to raise as grounds for a new trial, various actions allegedly taken by the trial court in admitting evidence, charging the jury, or making certain statements in the presence of the jury. We have carefully reviewed each of these enumerations of error and find that all lack merit.

Judgments affirmed.

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

       The blood alcohol test administered to Matheson was excluded from evidence under State v. Causey, 215 Ga. App. 85, 86 (449 SE2d 639) (1994).

       Duggan and Matheson cite only one decision, Daniels v. State, 264 Ga. 460 (448 SE2d 185) (1994). This decision reviewed the sufficiency of evidence at a bench trial for violation of the Anti-Mask Act, OCGA § 16-11-38, and is of no relevance here.


source: Caselaw Access Project

author: Andrews, Chief Judge.

license: Public Domain

text:
    A96A2393.
    KING et al. v. KING.
    (483 SE2d 379)
   Andrews, Chief Judge.

After Henry J. King died in 1994, Sarah E. King, Mr. King’s former spouse from whom he was divorced in 1985, brought an action against Joyce L. King, Mr. King’s surviving spouse, seeking the imposition of a constructive trust over annuity benefits being paid to Joyce King pursuant to Mr. King’s participation in the Survivor Benefit Plan (SBP) (10 USC §§ 1447-1455) as a United States Air Force retiree. Sarah King alleged that she was the rightful beneficiary of the SBP annuity benefits, which commenced at Mr. King’s death, because the 1985 divorce decree between her and Mr. King incorporated a written agreement between them providing that she would receive the annuity paid pursuant to the SBP. However, after the divorce, neither Mr. King nor Sarah King took the steps necessary under the provisions of the SBP to notify the applicable military authority of the divorce agreement to implement an election designating Mr. King’s former spouse as the beneficiary of the SBP annuity. Accordingly, after Mr. King died, the Air Force, acting pursuant to the provisions of the SBP, commenced making the annuity payments to Mr. King’s surviving spouse, Joyce King. After a bench trial, the trial court concluded that, since the SBP annuity was awarded to Sarah King as part of the marital property divided pursuant to the divorce decree, she had a right to receive the annuity despite any conflicting provisions of the SBP. On appeal, Joyce King contends that under the provisions of the SBP she was entitled to receive the annuity, and the trial court erred by elevating the provisions of the divorce decree over the provisions of the federal statutory scheme set forth in the SBP for regulating the payment of the survivor’s annuity.

Sarah and Henry King were married from 1952 until their divorce in 1985. In 1969 Mr. King retired from the Air Force and began receiving his military retired pay based on his years of service in the Air Force. In addition, Mr. King elected to participate in the SBP, a plan created by Congress in 1972 under which the government withheld a portion of his monthly retired pay to fund (along with government contributions) an annuity payable to his surviving spouse or child at his death. 10 USC §§ 1447-1455. Mr. King made this election when the SBP was enacted in 1972 at which time Sarah King was the designated beneficiary of the annuity as Mr. King’s spouse. As originally codified, the SBP had no provision for coverage of a former spouse, and upon a divorce a participant’s former spouse, except under limited circumstances, lost SBP coverage. In 1982 Congress passed the Uniformed Services Former Spouses’ Protection Act (FSPA), Pub. L. No. 97-252, 96 Stat. 718, 730-738 (1982) (codified in various sections of 10 USC and the subject of various subsequent amendments), which amended the SBP to allow a participant to voluntarily elect to provide annuity coverage for a former spouse at the time the service member became eligible to participate in the SBP. A 1983 amendment to the SBP clarified the authority of a service member who elected to participate in the SBP prior to the enactment of the FSPA to designate a former spouse as the SBP beneficiary. Department of Defense Authorization Act, 1984, Pub. L. No. 98-94, 97 Stat. 614, 652-654 (1983) (codified in part at 10 USC § 1448 (b)). That amendment provided in part that a participant in the SBP who originally designated his spouse as beneficiary, and later divorced the spouse after the 1983 amendment, could voluntarily elect to designate the former spouse as the SBP beneficiary by making that election in writing to the appropriate government Secretary within one year after the date of the divorce. Matter of: DOD Military Pay and Allowance Committee Action No. 560 Survivor Benefit Plan Former Spouse Coverage, 60 Comp. Gen. 687, 689-690 (1987). The SBP was again amended in 1984 to provide conditions under which a former spouse could be designated by a participant as the SBP beneficiary pursuant to a voluntary written agreement which was incorporated, ratified, or approved in a court-ordered divorce decree. Department of Defense Authorization Act, 1985, Pub. L. No. 98-525, 98 Stat. 2492, 2548 (1984) (codified in part at 10 USC § 1450 (f) (3)). The relevant provisions of the 1984 amendment provided that:

“(3) (A) If a person described in paragraph (2) or (3) of section 1448 (b) of this title enters, incident to a proceeding of divorce, dissolution, or annulment, into a voluntary written agreement to elect under section 1448 (b) of this title to provide an annuity to a former spouse and such agreement has been incorporated in or ratified or approved by a court order, and such person then fails or refuses to make such an election, such person shall be deemed to have made such an election if the Secretary concerned receives a written request, in such manner as the Secretary shall prescribe, from the former spouse concerned requesting that such an election be deemed to have been made and receives a copy of the court order, regular on its face, which incorporates, ratifies, or approves the voluntary written agreement of such person.

“(B) An election may not be deemed to have been made under subparagraph (A) in the case of any person unless the Secretary concerned receives a request from the former spouse of the person before October 1, 1985, or within one year of the date of the court order involved, whichever is later.” 10 USC § 1450 (f) (3) (A), (B) (as codified in 1984).

Although the SBP was further amended in 1986 to provide that a court could order a participant in the SBP to elect SBP coverage for a former spouse, the 1986 amendment applied only to court orders issued after November 14, 1986. Moreover, the 1986 amendment did not alter the requirement that the SBP participant take the further step of designating the former spouse as the SBP beneficiary by making that election in writing to the appropriate government Secretary within one year after the date of the divorce decree (10 USC § 1448 (b)), nor did it eliminate the necessity for the former spouse to take steps under the “deemed election” provisions of 10 USC § 1450 (f) (3) if the SBP participant fails or refuses to make the election under § 1448 (b). National Defense Authorization Act for Fiscal Year 1987, Pub. L. No. 99-661, 100 Stat. 3816, 3885-3886 (1986) (codified in part at 10 USC §§ 1448 (b) and 1450 (f) (3)).

In the present case, Mr. King voluntarily entered into a written agreement to provide Sarah King with former spouse SBP coverage, and the agreement was subsequently incorporated into a divorce decree dated May 29,1985. As a benefit acquired during the course of the marriage between Sarah and Henry King, the SBP annuity was marital property subject to equitable distribution by the trial court. Andrews v. Whitaker, 265 Ga. 76, 77 (453 SE2d 735) (1995); Courtney v. Courtney, 256 Ga. 97 (344 SE2d 421) (1986). However, the right to claim entitlement to an SBP annuity is also governed by and subject to conditions set forth in the SBP at 10 USC §§ 1447-1455. It is undisputed that, after their divorce in 1985 in which Sarah King was awarded the SBP annuity, neither Henry King nor Sarah King complied with the applicable provisions of the SBP governing election of a former spouse as the beneficiary of the annuity. Mr. King failed to comply with the applicable provisions of the SBP which required that within one year of the date of the divorce decree he make a written election to the appropriate government Secretary designating his former spouse as the beneficiary of the SBP annuity. When Mr. King failed to make the election under the SBP, Sarah King was entitled to notify the government Secretary under the “deemed election” provisions of 10 USC § 1450 (f) (3) that she had been designated pursuant to the divorce agreement as the beneficiary of the SBP annuity. Because she failed to do so, no election was ever made under the provisions of the SBP designating Sarah King as the former spouse beneficiary of the annuity. Mr. King married Joyce King on January 11, 1986. Under the applicable SBP provisions, in the absence of any election making Mr. King’s former spouse the annuity beneficiary, Joyce King became the designated spouse beneficiary of the SBP annuity after one year of marriage to Mr. King. 10 USC § 1447 (3) (A). Accordingly, the issue is which law controls — the Georgia divorce decree awarding the SBP annuity to Sarah King or the provisions of the SBP under which Joyce King was the beneficiary of the annuity as Mr. King’s surviving spouse.

As a general rule, state law rather than federal law controls in the area of domestic relations. “ ‘State family and family-property law must do “major damage” to “clear and substantial” federal interests before the Supremacy Clause [(U. S. Const., Art. VI, cl. 2)] will demand that state law be overridden. . . . The pertinent questions are whether the right as asserted conflicts with the express terms of federal law and whether its consequences sufficiently injure the objectives of the federal program to require nonrecognition.’ McCarty v. McCarty, 453 U. S. [210, 220 (101 SC 2728, 69 LE2d 589) (1981)].” Stumpf v. Stumpf, 249 Ga. 759, 760 (294 SE2d 488) (1982). In McCarty, supra, the Supreme Court held that, because the application of state community property principles to the allocation of military retirement pay threatened clear and substantial federal interests embodied in the applicable federal statutes governing such pay, the application of such state law was federally preempted. In reaction to McCarty, Congress changed the federal statutory scheme by enacting the FSPA which was designed in part to remove the effect of McCarty by employing a statutory scheme which allowed federal and state courts to apply both community property and equitable distribution principles to military retirement pay. Mansell v. Mansell, 490 U. S. 581, 584, n. 2 (109 SC 2023, 104 LE2d 675) (1989); Powell v. Powell, 80 F3d 464, 465 (11th Cir. 1996). However, nothing in the FSPA or subsequent amendments grants the same power to the states with respect to the award of annuity benefits for former spouses under the SBP. To the contrary, the provisions of the SBP specifically set forth the conditions under which a former spouse awarded SBP benefits in a state court divorce decree may thereafter be elected as the beneficiary of the annuity under the SBP and become entitled to receive the annuity. Moreover, Congress has declared that an annuity under the SBP “is not assignable or subject to execution, levy, attachment, garnishment, or other legal process.” 10 USC § 1450 (i); McCarty, supra at 226, n. 18.

Decided March 7,1997.

Kennedy & Kennedy, Reid W. Kennedy, for appellants.

Donald L. Mize, for appellee.

The right to the annuity asserted by Sarah King pursuant to the divorce decree clearly conflicts with the express provisions of the SBP under which Mr. King’s surviving spouse is the beneficiary of the annuity. In providing the means by which former spouses may become entitled to SBP annuity benefits, Congress enacted plain and precise statutory language placing conditions and limits on that right and made clear that any annuity benefits paid in compliance with the provisions of the SBP are not subject to legal process. Since the provisions of the SBP unambiguously preclude the rights asserted under the divorce decree, we further conclude that the consequences of enforcing the conflicting state law principles sufficiently injures the objectives of the SBP so that federal law preempts the authority of state law. See Poloney v. Tambrands, Inc., 260 Ga. 850, 851 (412 SE2d 526) (1991); Mansell, supra at 588-595.

The trial court erred by concluding that Sarah King had a controlling right to receive the SBP annuity pursuant to the divorce decree. We need not address appellants’ additional grounds.

Judgment reversed.

Pope, P. J, and Smith, J., concur.

       The suit also named Joyce King in her capacity as executrix of the estate of Mr. King.

       It appears from the record on appeal that there was no eligible spouse or former spouse SBP beneficiary for a period of time after the 1985 divorce until Mr. King had been remarried for one year. Nevertheless, it also appears that SBP withholding continued to be deducted from Mr. King’s military retirement pay in apparent violation of 10 USC § 1452 (a) (3). Since Sarah King was the recipient of Mr. King’s retirement pay during this period pursuant to the 1985 divorce decree, there may be a question as to whether she is entitled to a refund of unauthorized deductions. This, however, is not an issue in this appeal.


author: Per curiam.

text:
    A97A0137.
    WARE v. VAUGHN.
    (483 SE2d 698)
   Per curiam.

This appeal by Tony L. Ware from a jury verdict in favor of defendant Jeffrey D. Vaughn in a personal injury case is the second appeal of the verdict and judgment. Appellant Ware sought an extension of time to file his brief and enumeration of errors on September 23, 1996, the day before they were due to be filed. Contemporaneously, appellee filed a motion to dismiss the appeal because of Ware’s failure to file a timely brief and enumeration of errors. By order of October 3, 1996, this Court denied Ware’s motion for extension of time. However, before we could act on appellee’s motion to dismiss, Ware was by clerical error allowed to file a brief and enumeration of errors.

Following the verdict on August 22, 1995, plaintiff Ware, pro se, filed a notice of appeal on September 19, 1995. In January 1996, defendant filed a motion in the trial court to dismiss the appeal because Ware did not file the transcript within 30 days (OCGA § 5-6-42) and filed no request for extension of time; however, the trial court denied the motion to dismiss. Two months later on March 21, 1996, Ware filed an amended notice of appeal directing that the transcript be omitted, but reserving a right to file the transcript at any time during the appeal process. However, on April 18, 1996 this Court issued an order denying a motion for extension of time to file an enumeration of errors and brief, which motion Ware had filed on grounds that the court reporter failed to file a copy of the transcript. We noted in our order that at the same time that he sought an extension of time for failure of the trial court to file the transcript, Ware amended his notice of appeal and directed the trial court not to send the transcript, while keeping open the option of supplementing the record with a transcript. We held in our order that “this court cannot grant open-ended extensions.”

On remand to the trial court we ordered: “Upon the filing of the transcript [in the trial court], appellant shall have 30 days from that date to refile appellant’s notice of appeal, and upon the filing of such notice of appeal the case with the complete record and transcript may be transmitted to the Court of Appeals for redocketing.” (Emphasis supplied.)

In May 1996, while the case was still on remand and in the trial court’s jurisdiction and before Ware had filed a second notice of appeal, the defendant filed in the trial court a motion to dismiss appeal for Ware’s unreasonable delay in filing the transcript under OCGA § 5-6-48 (c). Notwithstanding the fact that no second notice of appeal had been filed, the trial court granted defendant’s motion to dismiss the appeal. This ruling was, of course, without force because there was no appeal then pending. This procedural anomaly of a motion to dismiss an appeal when no appeal was pending and the trial court’s granting of that motion to dismiss appeal, appear to have arisen from the defendant’s and trial court’s frustration with Ware’s continued failure to file the transcript more than seven months after he filed his first notice of appeal, in which Ware had directed that no transcript be filed while at the same time he sought extensions of time based on the fact that the transcript had not been filed. Inasmuch as the second appeal is now before us despite the trial court’s erroneous grant of that motion to dismiss, we consider that ruling by the trial court to be moot.

On August 27, 1996, appellant filed a second notice of appeal of the 1995 verdict and judgment. This notice of appeal directed: “The transcript of evidence and proceedings will not be filed for inclusion in the record. . . . However, appellant do[es] not waive any right to amend this motion of appeal nor to move the Court of Appeals by motion to have the record supplemented pursuant to [OCGA § 5-6-48].” (Emphasis supplied.) The appeal now before us was docketed on September 4, 1996.

As noted above, we denied an extension of time to Ware to file a brief and enumeration of errors and defendant filed a motion to dismiss the appeal but, by clerical error, Ware was allowed to file a late brief and enumeration of errors. On October 3, 1996, Ware filed a motion asserting that his appeal cannot be dismissed for delay in filing the transcript because on April 18, 1996 when we remanded the first appeal, we specifically ordered that Ware could file his second notice of appeal 30 days from the filing of the transcript — which he had never done (and which in this second notice of appeal Ware designates not be done). Held'.

In consideration of all the material proceedings in this Court, and the record and all motions filed in this Court, we conclude that appellant in his first notice of appeal designated that no transcript be filed and then improperly and litigiously used the trial court’s failure to file the transcript as an excuse to attempt to obtain an extension of time for filing his brief and enumeration of errors. When we remanded the case, we gave appellant 30 days from the filing of the transcript to refile a notice of appeal, and held that “upon the filing of such notice of appeal the case with the complete record and transcript may be transmitted to the Court of Appeals for redocketing.” (Emphasis supplied.) Ware then delayed five months in filing a second notice of appeal. Ware obviously used as his excuse for delay in filing the second notice of appeal the fact that, in ruling that Ware had 30 days after filing of the transcript to file a second notice of appeal, we apparently had not ordered a time for filing of the transcript or had not explicitly ordered the transcript to be filed.

We now hold that it is clear from the face of our April 1996 order that consistent with the law as to unreasonable delays in filing transcripts and appeal documents in general, we explicitly contemplated that Ware would not delay in filing the transcript and we explicitly contemplated that when Ware refiled his appeal “the complete record and transcript” would be transmitted to this Court.

However, replicating his course of conduct in his first appeal, Ware unduly delayed filing the transcript in the trial court so as to delay the necessity of filing this notice of appeal within 30 days thereof. Then, when he could no longer delay filing his second notice of appeal, Ware designated in his second notice of appeal that the transcript not he filed, and he again arrogated a right to summon the transcript at any time during the appeal.

Further, appellant gives no excuse whatever for his delay and failure to have the transcript filed in the trial court.

We conclude, upon the indisputable facts of record and according to his express designation in his second notice of appeal, that appellant had no intention of filing the transcript within a reasonable time so that his second appeal would be filed without undue delay. He thus used the leave granted in our April 18, 1996 order to refile a notice of appeal “30 days from . . . filing [the transcript]” as a means to delay indefinitely, or to a time to be determined at his discretion, the refiling of any appeal.

We find farther that the complete terms of our April 18, 1996 order directed that on the docketing of this second appeal, the complete record including transcript would he transmitted to this Court, and that the order contemplated on its face that Ware would not unreasonably delay filing the transcript and therefore would not unreasonably delay the filing of his second notice of appeal. The full record shows appellant wilfully and frivolously failed to have the transcript filed in the trial court so as to use the fact that no transcript had been filed as an excuse to delay indefinitely or at his discretion the filing of his second notice of appeal. We find further that his designation in his second notice of appeal that no transcript be filed is in direct defiance of this Court’s April 18, 1996 order, and proves that his refusal to have the transcript filed was a means to manipulate lawful appeal procedures and the rules and orders of this Court. We find appellant has wilfully followed the same manipulative course of conduct in this appeal as in his first appeal: he has wilfully and purposely failed to file the transcript within a reasonable time; and he wilfully used his failure to file a transcript as a means to delay the filing of the second notice of appeal. And we conclude that Ware wilfully used his delay in filing the second notice of appeal to thwart any attempt by appellee, the trial court, and this Court to have the appeal proceed according to law or else be dismissed for inexcusable and unreasonable delay under OCGA § 5-6-48. We note, further, that the appeal itself contains no allegations of substantive material error in the trial of the personal injury case but argues tendentiously about procedural maneuvers.

Decided March 7,1997.

Tony L. Ware, pro se.

Bentley, Karesh & Seacrest, Karsten Bicknese, Lauren G. Daniel-son, for appellee.

Jeffrey D. Vaughn, pro se.

Accordingly, we find this appeal and the entire appeal procedure used by Ware to be wholly and egregiously frivolous and abusive, and we find that the appeal has been litigiously pursued for the purpose of harassment, and we impose a penalty of $1 against Tony L. Ware pursuant to Court of Appeals Rule 15 (b), as amended, this sum being appropriate inasmuch as he has declared himself to be a pauper. We direct that this opinion be published in the Georgia Appeals Reports. Finally, we direct that the matters and proceedings and actions stated herein be considered cumulative and aggravating circumstances to any further and future action by Tony L. Ware which this Court deems to be improper, frivolous, abusive, or excessive litigation.

Appeal dismissed.

Division Per Curiam. All Judges concur.


author: Eldridge, Judge.

text:
    A97A0182.
    SHIRE v. THE STATE.
    (483 SE2d 694)
   Eldridge, Judge.

On January 19, 1996, appellant Matthew Orlando Shire was arrested in DeKalb County for driving under the influence and driving left of the centerline. Appellant was issued two uniform traffic citations (“UTCs”) at that time. Appellant filed a demand for a speedy trial in the State Court of DeKalb County on March 28, 1996, even though the state had not yet filed the UTCs or a formal accusation with the court and there had been no bindover hearing on April 2, 1996. Attached to appellant’s demand was a copy of both UTCs; appellant also served the state with copies of the demand and the UTCs. However, since no case was pending against appellant, the deputy court clerk created a file, assigned a case number to the file, and entered the information in a computer. The clerk then sent a memo to the state directing them to refer to the case number when filing the accusation or other pleadings.

The state filed an accusation against appellant on May 21, 1996. When the case was not tried by June 30, 1996, the end of the April court term, appellant filed a motion for discharge and acquittal on July 8, 1996. Appellant challenges the trial court’s denial of his motion to discharge. For the reasons set forth below, we affirm.

1. Appellant asserts that the trial court erred in finding that his demand for speedy trial was premature and, therefore, a nullity since neither a formal accusation nor a UTC had been filed with the court by the state at the time of the demand. There is no merit in this assertion.

OCGA § 17-7-170 reads in part: “Any person against whom a true bill of indictment or an accusation is filed with the clerk for an offense not affecting his life may enter a demand for trial at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter!.]... If the person is not tried when the demand is made or at the next succeeding regular court term thereafter ... he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.” (Emphasis supplied.) This statute raises two issues relevant to the case sub judice that have been addressed conclusively by Georgia’s appellate courts: (a) when is a case “filed” with the court for the purpose of a speedy trial demand and (b) must a formal indictment or accusation be filed for a speedy trial demand to be considered timely?

(a) With respect to the first issue, the undisputed facts of the case sub judice indicate that, at the time appellant filed his demand for a speedy trial, no case was pending against appellant, since no UTC, indictment, or other accusation had been filed with the court by the state. Appellant admits that the deputy court clerk created a file for appellant’s documents, assigned a case number to the file, and entered some information into the court’s computer. Appellant also admits that he had attached copies of the UTCs to his speedy trial demand. Now appellant asserts that the administrative actions of the clerk, as well as the subsequent presence of unstamped UTCs in the file, constitute “filing” of the UTCs for the purpose of legitimizing his speedy trial demand.

This Court rejects appellant’s argument. “Generally, a prosecution in state court commences with the filing by the solicitor of an accusation or UTC with the clerk of the court. OCGA § 16-1-3 (14). There are many benefits to the solicitor, as the state prosecutor, determining whether a prosecution should proceed and when within the law it should do so. There are ethical considerations, which require the solicitor to insure that the evidence, such as lab reports, supports the charges prior to proceeding with a prosecution. Also, where, as here, there are multiple offenses charged, the early prosecution of one charge (DUI) . . . could ultimately bar [the prosecution of related charges], as multiple prosecutions of charges arising from the same incident are not generally allowed. The analysis and determination of such matters must be made by the solicitor as the trial [court] cannot properly do so.” State v. Rish, 222 Ga. App. 729, 731 (476 SE2d 50) (1996).

“From the beginning of our criminal justice system prosecutors have exercised the power of prosecutorial discretion in deciding which defendants to prosecute. Bishop v. State, 265 Ga. 821, 822 (462 SE2d 716) (1995); see Hicks v. Brantley, 102 Ga. 264, 271-272 (29 SE 459) (1897) (prosecuting attorney is to determine whether or not to commence a prosecution). In the state court, the role of prosecutor is filled by the solicitor. See OCGA § [15-18-66 (b) (10)]; see also Zater v. State, 197 Ga. App. 648, 649 (399 SE2d 222) (1990) (solicitor’s role in state court is same as that of district attorney who is the prosecuting attorney in superior court).” (Punctuation omitted.) Rish, 222 Ga. App. at 731-732. Adopting appellant’s apparent argument that a defendant may “file” a case against himself by submitting UTCs, along with a speedy trial demand, to a court clerk severely infringes upon prosecutorial discretion regarding whether or not to proceed on a case based on the UTC, whether to promulgate a formal accusation, or whether to dismiss the charges altogether. This Court, absent statutory authority, refuses to assign such control over the disposition of a case to a court clerk. More importantly, we refuse to grant such control to defendants, who may be tempted to manipulate the system with untimely filings in an attempt to avoid prosecution.

“While not binding in this case, we note that the Georgia General Assembly recently enacted OCGA § 15-18-66, which provides in part: ‘No accusation, citation, or summons shall be considered filed unless such filing has been done with the consent, direction, or approval of the solicitor-general. . . . Prior to the filing of an accusation, citation, or summons, the solicitor-general shall have the same authority and discretion as district attorneys over criminal cases within their jurisdiction.’ OCGA § 15-18-66 (b) (10).” Rish, 222 Ga. App. at 732. This provision clearly expresses the General Assembly’s intention to assign the power to initiate criminal cases solely with the state’s prosecutors and serves to codify the prior holdings of the state’s appellate courts.

(b) Moving to the second issue, in State v. Gerbert, 267 Ga. 169 (475 SE2d 621) (1996), the Supreme Court of Georgia considered “whether the right to demand a speedy trial attaches when a uniform traffic citation is filed with the court or only when a formal accusation is filed.” In holding “that the [statutory] right to a speedy trial under OCGA § 17-7-170 attaches when the state files the uniform traffic citation with the court,” the Supreme Court created a “bright-line rule.” Id. at 169, 170. This rule clearly establishes the first possible opportunity for a defendant to demand a speedy trial, i.e., the state’s filing of a UTC or a formal accusation (if no UTC has been filed). In so doing, this rule also “fulfills the purpose of the speedy trial guarantee — ‘the right to have charges brought against one disposed of not only while witnesses are available and their memories are fresh but also so that the deleterious effects of a pending charge on a defendant are lessened.’ ” Id. at 170-171, citing State v. Gerbert, 219 Ga. App. 720, 726 (467 SE2d 177) (1995) (Beasley, C. J., concurring in part and dissenting in part), rev’d by Gerbert, 267 Ga. at 171.

Contrary to appellant’s contentions, this holding is entirely consistent with this court’s prior rulings. Under remarkably similar circumstances, this Court, in Ghai v. State, 219 Ga. App. 479, 480 (465 SE2d 498) (1995), held “that a uniform traffic citation is not entered, within the meaning of OCGA § 17-7-170 (a) until it has been duly filed with the clerk of the courts. We find that mere issuance of a uniform traffic citation, without subsequently filing it with the clerk of courts, is not sufficient to authorize the entry of a filed demand for speedy trial pursuant to OCGA § 17-7-170 (a).” (Emphasis supplied.) See also State v. Lipsky, 191 Ga. App. 842, 843 (383 SE2d 204) (1989) (holding that a speedy trial demand is premature when neither a formal accusation or a uniform traffic citation has been filed with the court).

2. Appellant also asserts that the state failed to prove that the UTCs were not in the file at the time the appellant filed his demand for speedy trial. However, by appellant’s own admission, no case was pending against appellant and no case file existed at the time appellant filed his demand. It is therefore impossible for the UTCs to have been filed with the court at the time appellant’s demand was filed. This argument is disingenuous and clearly meritless. Further, “[n]oting that the citations contained no stamp or indication of filing, the trial judge factually concluded that the uniform traffic citations had not been filed in the trial court on or before the presentation of the speedy trial demand. . . . In a bench trial, the trial court sits as trier of fact, and its findings will not be set aside unless clearly erroneous. The trial court’s findings of fact were not clearly erroneous.” (Citations and punctuation omitted.) Ghai, 219 Ga. App. at 480.

Decided March 7,1997

William C. Head, for appellant.

In summary, this Court affirms the trial court’s finding that appellant’s demand for speedy trial was filed prior to the filing of a UTC or other accusation by the state, so that the demand was premature and, therefore, a nullity. Even though the state subsequently filed an accusation against the appellant, “ ‘[tjhere is no provision in Georgia law whereby a prematurely filed speedy trial demand can be resuscitated by a later returned accusation (or indictment) whether they are filed in the same term or not.’ ” State v. Black, 213 Ga. App. 331, 332 (444 SE2d 368) (1994), citing State v. McKenzie, 184 Ga. App. 191, 192 (361 SE2d 54) (1987).

“The dismissal of a criminal case pursuant to OCGA § 17-7-170 is an extreme sanction which can be invoked only if there has been strict compliance with the statute. Under the circumstances in this appeal, the procedures followed did not strictly comply with the requirements of the Code section. Accordingly, the trial court did not err by denying the motion” for discharge and acquittal. (Citations and punctuation omitted.) Grier v. State, 198 Ga. App. 840, 841 (403 SE2d 857) (1991).

Judgment affirmed.

Birdsong, P. J, and Ruffin, J., concur.

Ralph T Bowden, Jr., Solicitor, Charles C. Flinn, W. Cliff Howard, Elaine W. Brooks, Assistant Solicitors, for appellee. .

       This Court notes that appellant’s counsel has unsuccessfully asserted strikingly similar arguments under analogous facts in at least two previous cases. See State v. Gerbert, 267 Ga. 169 (475 SE2d 621) (1996); Ghai v. State, 219 Ga. App. 479 (465 SE2d 498) (1995).

       “OCGA § 17-7-170 was enacted to implement the constitutional provision for a speedy trial. ... In the absence of a right to a speedy trial the accused might suffer uncertainty, emotional stress, and the economic strain of a pending prosecution indefinitely.” (Citation omitted.) Hubbard v. State, 254 Ga. 694, 695 (333 SE2d 827) (1985).

       A UTC may serve as an accusation in state or probate courts. OCGA § 40-13-1; see also Gerbert, 267 Ga. at 170. However, under OCGA § 40-13-3, the state is required to file an indictment or other accusation to proceed on a traffic offense in superior courts.

       In Ghai, supra, the appellant attempted to file a demand for speedy trial following his arrest for DUI and other traffic offenses. However, the court clerk declined to accept the filing on the grounds that it was premature, since the state had not filed an accusation or UTC with the court.

       While this Court recognizes appellant’s concern that this rule may allow prosecutor’s the opportunity to delay prosecution of a case “indefinitely” by postponing the filing of a UTC or an accusation beyond two court terms, thereby defeating the purpose of the speedy trial provision of the Code, this issue is not before this Court in the case sub judice, as an accusation was filed against appellant on May 21, 1996.

       This case is distinguishable from Tyler v. State, 224 Ga. App. 550 (481 SE2d 228) (1997). Contrary to the trial court’s finding in the case sub judice, the trial court in Tyler made no finding regarding whether or not the UTC had been properly filed prior to the defendant’s demand for speedy trial. On appeal, this Court found that the UTC had been filed with the trial court because it had been assigned a case number which was subsequently used on pleadings and other motions by the defendant. Therefore, this Court found that the UTC served as the accusation and the defendant’s speedy trial demand was not premature. See State v. Gerbert, supra at 170. There exists a presumption of correctness that both the clerk and the prosecutor performed their respective duties when the clerk of court has stamped, initialed, and numbered the UTC, then entered the document on the docket. In the case sub judice, there was no evidence of such ministerial duties; the evidence showed that the UTC had been received but not “filed” by the clerk, because the defense counsel had no authority to “file” the UTC.


text:
    A97A0779.
    BROWNLEE v. THE STATE.
    (483 SE2d 370)
   Eldridge, Judge.

On September 20, 1995, appellant, Carol Brownlee, was involved in a collision on Akers Mill Road, during which she collided with a vehicle driven by Jon Alion as it exited from the Akers Mill shopping center in Cobb County. Appellant was upset from the collision, had broken her leg, and was in pain.

The Cobb County police came to the accident scene to investigate the collision. While talking to an officer, the officer detected the odor of alcohol on appellant’s breath. The officer began to question appellant regarding alcohol consumption, and appellant became upset because she did not believe that the accident was her fault; because she was in pain from her injury; and because of the officer’s accusation that she might be driving under the influence of alcohol. Appellant consented to the administration of an alcosensor test, as well as field sobriety tests, which included a horizontal gaze nystagmus test. Based upon the results, the police arrested appellant for DUI. Appellant refused to submit to any tests of blood, urine, or breath that could quantify blood-alcohol level, after she had been properly advised of her rights under the informed consent statute.

The case went to jury trial on June 10, 1996, and appellant was found guilty on June 11, 1996.

The state based its prosecution on OCGA § 40-6-391 (a) (1), DUI — less safe driver. Since appellant had refused to take a blood, breath, or urine test to quantify the amount of alcohol in appellant’s blood, the state’s evidence depended upon the testimony of witnesses as to appellant’s condition prior to and after the collision. In addition, the state’s evidence showed that appellant was administered an alcosensor test for the presence of alcohol, as well as field sobriety tests, which appellant failed, indicating intoxication. Officer Wells and Dunkerton testified for the state as to appellant’s conduct and appearance, while Lieutenant Garrett testified as to prior similar transactions. The officers stated their opinion that appellant had been under the influence of alcohol to the extent that it was less safe to operate a motor vehicle.

Appellant presented evidence by an eyewitness who saw the collision and who testified that appellant was driving normally and did everything possible to avoid the collision. The witness testified that he did not smell alcohol on appellant’s breath and gave his opinion that appellant was not under the influence of alcohol. The defense put up Ms. Sandra Harmon and Mr. Edwin Hass, who testified that they both had been with appellant at Lassiter’s Tavern just prior to the collision, and they saw appellant drink only two and one-half glasses of wine while eating. Ms. Harmon testified that in her opinion appellant did not appear impaired when appellant drove out of the parking lot.

1. The first enumeration of error is that the trial court’s charge as to what it means to be under the influence of alcohol pursuant to OCGA § 40-6-391 (a) (1) was harmful error because it was misleading and/or contrary to law.

The trial court gave the jury a charge on driving under the influence of alcohol — less safe driver. The defense reserved objections to the charge.

Appellant contends that the language of the charge violates Harper v. State, 91 Ga. App. 456, 458-461 (2) (86 SE2d 7) (1955), which found that the giving of the “to-any-extent-whatsoever” charge as to intoxication was reversible error. In the case sub judice, the charge stated that the jury did not have to find appellant drunk, but had to find “that the operator of a motor vehicle is under the influence of alcohol when he or she is so affected by the alcohol as to make that person a less safe driver than they would have been had they not consumed any alcohol at all.” (Emphasis supplied.) See OCGA § 40-6-391 (a) (1). Appellant contends that the specific language of the charge “than they would have been had they not consumed any alcohol at all,” when modifying “less safe,” violates Harper v. State, supra. She also contends that Smitherman v. State, 157 Ga. App. 526 (278 SE2d 107) (1981), lays down a mandatory charge as to language, i.e., “the operator of a motor vehicle is under the influence of alcohol when he is so affected by it as to make it less safe for him to drive, operate, or be in control of the vehicle than it would be if he were not affected by such alcohol.” (Emphasis of statutory language supplied.) Id. at 527; OCGA § 40-6-391 (a) (1).

Harper v. State, supra, found error in a DUI charge which indicated that a jury could find driving under the influence when alcohol had been consumed “to any extent whatsoever,” but without requiring a finding as to the second element, i.e., being “less safe” because of such alcohol consumption. In the case sub judice, the charge given did not violate Harper v. State, supra, because the charge required the jury to determine the effect of the alcohol consumption upon the “less safe” driving in order to find that the driver was under the influence of alcohol. While there exist semantic similarities between Hart v. State, 26 Ga. App. 64 (105 SE 383) (1920); Harper v. State, supra; Smitherman v. State, supra, and the case sub judice, the charge in the case sub judice was a correct statement of law. See Mattarochia v. State, 200 Ga. App. 681, 684-685 (5) (e) (409 SE2d 546) (1991). Thus, the trial court did not err in giving the request to charge.

2. The appellant’s second enumeration of error is that the trial court erred by permitting the state to use cross-examination to force appellant to put her character in issue.

On direct examination, appellant’s counsel asked her whether or not at the time of the collision, after being at Lassiter’s, she was a safe driver; appellant stated her opinion that she was. Appellant’s counsel also questioned her regarding Lassiter’s and what she did there, how often she went there, what she ate there, and what she drank there.

On cross-examination, the prosecutor questioned appellant about whether she had ever become drunk at Lassiter’s. The prosecutor, after defense objection, changed the question and asked how many drinks she had consumed on the night of the arrest and then asked appellant how many drinks she would have to consume before she believed that she was too impaired to drive. Appellant answered that she did not know, but that she took a cab when she believed it was necessary. The prosecutor then asked whether it was true that in the past she had to be coaxed into taking a cab because she was impaired. Defense counsel objected that it was not relevant and raised character as an issue. The trial judge overruled the objection and allowed the inquiry as one going to habit or course of conduct relating to knowledge of her impairment to drive. Appellant admitted that she previously had called a cab to take her home from Lassiter’s. Defense again objected to the follow-up question “[s]o you have been drunk or impaired?” The prosecutor was instructed by the trial court to ask why she had called a cab, which he did, and appellant indicated that she had believed that she was too impaired to drive. The prosecution then asked how many drinks had been required for her to believe that she was so impaired, and appellant indicated four or five drinks. The prosecutor then inquired as to what type of drinks the four or five were, and appellant stated that the drinks were White Russians, which generally contain more alcohol than wine. Appellant, after a discussion regarding the size of drinks, stated that she did not drive after four drinks of any kind. The prosecutor asked appellant if it was true that appellant went to Lassiter’s three or four times a week, which appellant denied; defense counsel made a motion for mistrial based upon the placing of appellant’s character in evidence, which was denied. The prosecutor, again, went into the size of the drinks and whether four drinks impaired appellant’s ability to drive; defense counsel, again, objected on the basis of character, which the court overruled. Appellant described her condition after four drinks as not drunk, but “tipsy.” The prosecutor asked appellant how her reflexes were affected when she was tipsy, and appellant indicated that her reflexes “slowed down.” Appellant refused to admit that the alcohol that she had drunk on the night in question affected her reactions and reflexes.

Decided March 7,1997

Monzer J. Mansour, Jack J. Menendez, for appellant.

Benjamin F. Smith, Jr., Solicitor, Rebecca A. Hulsey, Barry E. Morgan, Assistant Solicitors, for appellee.

We find that appellant opened the door to the line of cross-examination objected to at trial as placing appellant’s character in evidence. On direct examination, appellant’s counsel specifically asked appellant about Lassiter’s, her past association with Lassiter’s, when appellant would go there, how often she went there, and what she drank there. By expressing her opinion on direct examination as to whether she was a safe driver when she left Lassiter’s, even under the influence of the two and one-half drinks she had admittedly consumed while there, appellant opened the door to cross-examination as to when appellant believed she was not a safe driver, how much she would have to drink to reach such admitted impairment, what she did under such circumstances, and whether or not she had ever been unable to realize that she was impaired. All such areas of cross-examination were legitimate areas of impeachment and attacked the credibility of appellant’s opinion on direct that she was a safe, unimpaired driver after consuming an admitted quantity of alcohol at a tavern she admitted visiting frequently. “(I)t was appellant, on direct examination, who introduced the topic. He cannot now complain that the prosecutor followed up on cross-examination. [Cits.]” (Citations and punctuation omitted.) Mitchell v. State, 193 Ga. App. 214, 216 (2) (387 SE2d 425) (1989), quoting Lockett v. State, 188 Ga. App. 645, 646 (373 SE2d 768) (1988); see also Wilkey v. State, 215 Ga. App. 354 (450 SE2d 846) (1994); Butts v. State, 193 Ga. App. 824 (389 SE2d 395) (1989).

Further, where evidence that may touch on character is relevant for a legitimate evidentiary purpose other than as an attack on character, such evidence is admissible although it raises an issue as to character. OCGA § 24-9-20 (b); Hall v. State, 264 Ga. 85 (441 SE2d 245) (1994); Height v. State, 214 Ga. App. 570 (448 SE2d 726) (1994); Causey v. State, 154 Ga. App. 76 (267 SE2d 475) (1980). The trial court did not err either in overruling the objections or in denial of the motion for mistrial.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


author: Johnson, Judge.

text:
    A96A1654.
    A96A1655.
    MALONE v. THE STATE. SMITH v. THE STATE.
    (484 SE2d 6)
   Johnson, Judge.

Helen Malone and Dr. Theodore Smith were tried jointly and convicted of Medicaid fraud for seeking reimbursement for psychotherapy services which had not been rendered. Malone appeals in Case No. A96A1654, and Smith appeals in Case No. A96A1655. Because the appellants raise similar enumerations of error, their appeals have been consolidated.

1. Of the eleven peremptory challenges defense counsel made on Malone’s and Smith’s behalf, ten were used against white and one against Asian-American veniremen. None of the defendants’ peremptory strikes was exercised against the African-American veniremen. The state opposed the strikes under Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992), claiming that they were used with the intent of eliminating white people from the jury. The trial court found that a prima facie case of racial discrimination had been made and then stated: “I will make him justify his strikes. If I don’t think it’s right, they will not be struck.” Defense counsel explained the strikes, but the trial court ruled that the reasons given were not race-neutral and placed five of the jurors back on the jury.

In separate briefs, Smith and Malone argue that the trial court erred in finding that the explanations defense counsel offered were not race-neutral. Smith argues further that in considering the state’s motion, the trial court erroneously merged the second and third steps of the test set forth in Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), thereby placing the burden of persuasion on the proponent of the strikes. We agree with both contentions. For the reasons set out below, we reverse and remand the cases for a new trial.

“In McCollum, the United States Supreme Court extended its decision in Batson v. Kentucky and held that the equal protection clause prohibits a criminal defendant from engaging in purposeful discrimination on the basis of race in the exercise of peremptory challenges. To evaluate claims that the state or defendant used peremptory challenges in a racially discriminatory manner, the trial court must engage in a three-step process. The opponent of a peremptory challenge must make a prima facie showing of racial discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent.” (Footnotes omitted; emphasis supplied.) Chandler v. State, 266 Ga. 509, 510 (2) (467 SE2d 562) (1996).

As noted above, after determining that a prima facie case of discrimination had been established, the trial court properly required defense counsel to explain their peremptory strikes. Defense counsel explained the five strikes at issue as follows:

Dr. Smith’s attorney explained that he struck juror no. 2 because of her age and the fact that she listed her name using “Mrs.” and her husband’s first name. Malone’s attorney added that juror no. 2 had been exposed to publicity in the case. The trial judge responded that “75 percent of them or more” had been exposed to publicity, that his own wife uses his name, and that neither reason would be accepted.

Smith’s attorney explained that he struck juror no. 8 because he did not trust her. He said she was not credible because she claimed to have studied nuclear engineering at Georgia Tech, but works at Office Depot, and that she crossed her arms and looked away when answering questions. Malone’s attorney added that he did not like the fact that the juror had a business background and therefore may be predisposed to agree with the state. The court stated that it could not accept the explanations.

Smith’s attorney could not recall why juror no. 11 was struck, while Malone’s attorney noted that he looks at the type of work a person does and that she was a data processor. The trial judge stated that he could not accept this explanation, either.

Smith’s attorney struck juror no. 13 because she worked as a manager for the federal reserve bank and she stated that she thought the government did a good job most of the time. He noted that the defense’s theory of the case was that “the government screwed up,” and that it would be hard to convince this juror of that point. The court remarked that an African-American juror who worked for the federal government was not struck. Smith’s attorney responded that the African-American juror was not struck because she was not in a supervisory position. The trial court recalled that this African-American juror was also a supervisor, but the defense attorney’s assertion that the employee was not a supervisor is corroborated by the transcript. The court stated that the difference between the two jurors was their race and rejected the explanation.

Smith’s attorney explained that he struck juror no. 18 because he said “something about North Druid Hills. And I made a note that I did not like whatever he said about it.” Malone’s attorney added that the juror had been exposed to publicity about the case and “seemed to me not to keep an open mind.” The court ruled that the juror would be placed back on the jury.

At the end of this colloquy, the trial court expressly ruled that the defendants’ strikes were not race-neutral. All five jurors were then reseated on the jury, thereby completing the jury of twelve.

In articulating a race-neutral explanation for striking a juror, the proponent of the strike is not required to enunciate a plausible or persuasive explanation, just one that is clear, reasonably specific and that does not deny equal protection. Jackson v. State, 265 Ga. 897, 898-899 (2) (463 SE2d 699) (1995). “At this second step of the inquiry, the issue is the facial validity of the [attorney’s] explanation. Unless a discriminatory intent is inherent in the [attorney’s] explanation, the reason offered will be deemed race neutral. Hernandez [v. New York], 500 [U. S. 352, 360 (111 SC 1859, 114 LE2d 395) (1991)]; [cit.].” (Punctuation omitted; emphasis supplied.) Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834, 839 [2]) (1995).

In Jackson v. State, supra, defense counsel explained that he struck a white juror because she worked in her husband’s bonding company. The trial court refused to accept the explanation as being race-neutral. Defense counsel added that his client “jumped bond” and that the juror might be biased against the defendant. The Supreme Court of Georgia reversed Jackson’s conviction and ordered a new trial, holding that the trial court should have accepted the explanation as race-neutral and then decided whether the reason given was persuasive and whether the opponent of the strike had established discriminatory intent. Id. at 899.

Similarly, in Chandler v. State, supra, the Supreme Court of Georgia reversed a conviction and ordered a new trial where the trial court erroneously failed to accept defense counsel’s explanation as race-neutral. When the state in that case raised a McCollum objection, defense counsel explained that he struck two white jurors because they were in managerial positions and had authoritarian personalities. He claimed that jury surveys and mock trials had shown he should avoid authoritarian figures when selecting jurors. Chandler at 509. The Supreme Court held that Chandler had articulated a race-neutral reason for striking the jurors, one that was not based on either race or sex and that, even under our deferential standard of review, the trial court’s finding was clearly erroneous and resulted in an illegally constituted jury. Id. at 510.

In the instant case, it is fairly easy to understand why the trial court found some of the reasons given for the peremptory strikes to be unpersuasive. However, when considered in light of the controlling authorities cited above, one has no choice but to conclude the explanations given were facially valid and evidenced no discriminatory intent, i.e., were race-neutral. None of the rationales proffered by defense counsel was based on a characteristic or stereotype peculiar to any race. Turner v. State, 267 Ga. 149, 152 (476 SE2d 252) (1996). Therefore, the trial court’s finding that the explanations were not race-neutral was clearly erroneous.

The state’s argument that the explanations were properly rejected because defense counsel did not show that the explanations were case-related is without merit. We note that the question of whether the reasons given for the strikes must be related to the speciñes of the case is, as Presiding Judge Pope wrote in a special concurrence in Parker v. State, 219 Ga. App. 361, 364-365 (464 SE2d 910) (1995), “in a state of flux” in the aftermath of Purkett, supra, where the U. S. Supreme Court did not require the race-neutral reason, i.e., that the juror had long hair and facial hair, to be related to the case. See also Chandler, supra. Nonetheless, because counsel in the instant case did give case-related reasons for striking juror nos. 8 and 13, this argument must fail in any event.

Whether the explanations should be believed and accepted as non-discriminatory is a different question from whether the explanations are race-neutral. Indeed, “[i]t is not until the third step that the persuasiveness of the justification becomes relevant — the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step 3 is quite different from saying that a trial judge must terminate the inquiry at step 2 when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” (Citations and punctuation omitted; emphasis in original and supplied.) Purkett, supra.

It is possible that the trial court in this case understood counsel’s explanations to be race-neutral on their face, but did not accept them because it believed the reasons to be pretextual. If we are correct in our assumption, the trial court prematurely evaluated the persuasiveness of defense counsel’s reasons for exercising the strikes and placed the ultimate burden of persuasion upon the proponent of the strikes when, under the controlling authorities, it is absolutely clear that the ultimate burden of persuasion rests with the opponent of the strikes. Jackson, supra at 899 (2). Because the trial court forced Malone and Smith to be tried by an illegally constituted jury, a new trial is demanded. See id. at 899-900 (2); Chandler, supra at 510.

We note that we do not reach this result very easily. We realize the difficulty trial judges face in creating a record which unequivocally shows that they considered each step of the three-part analysis separately. Indeed, there may be a natural tendency to consider the last two steps together, and decide at the moment the explanation is given whether it is silly, plausible, persuasive or pretextual. However, it is absolutely clear that the burden of persuading the trial court that the strikes were racially motivated rests with, and never shifts from, the opponent of the strike. See Purkett, supra. By requiring judges to consider each of the three parts of the Batson analysis separately, we safeguard against the burden of persuasion being improperly shifted to the strike’s proponent. For example, in the cases under consideration here, the opponent of the strikes established a prima facie case of racial discrimination and the proponents offered race-neutral explanations for the strikes. Without question, some of the explanations offered for the strikes were weak and unpersuasive. But they were valid on their face, and that is what matters at this step of the inquiry. Where, as here, the trial court forces the strikes’ proponents to defend at step two explanations which were on their face race-neutral, it impermissibly transforms the opponent’s burden of proving purposeful discrimination into the proponents’ burden of disproving discrimination. This is precisely the type of error the three-step analysis is intended to guard against.

Decided February 18,1997

Reconsideration dismissed March 10,1997.

Brownlow & Schaefer, Ira B. Brownlow, Jr., for Malone.

Michael R. Hauptman, for Smith.

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, Michael J. Bowers, Attorney General, Nancy B. All-strom, Assistant Attorney General, for appellee.

2. Based on the foregoing, we do not reach the other enumerations of error asserted by appellants.

Judgments reversed and cases remanded for new trial.

McMurray, P. J, and Judge Marvin W. Sorrells concur.


text:
    A96A2142.
    WILLIAMS v. THE STATE.
    (483 SE2d 874)
   Smith, Judge.

On December 16, 1993, Mary Williams was indicted on three counts of sale of cocaine in violation of the Georgia Controlled Substances Act. OCGA §§ 16-13-20-16-13-114. In Count 1 she was charged with sale of cocaine on April 4, 1991. In the remaining two counts she was charged with sale of cocaine on April 1, 1992. Following a jury trial in March 1994, she was convicted only of Count 1. Williams was granted an out of time appeal in February 1996, her motion for new trial was denied, and this appeal ensued.

1. Williams contends the evidence is insufficient to support her conviction. Construed to support the verdict, evidence was presented that on April 4, 1991, GBI Agent Turner, accompanied by Theodore Williams, stopped on a residential street in Dougherty County and spoke with Mary Williams and another individual. After a brief conversation, Agent Turner purchased $200 worth of cocaine from Mary Williams. She contends that several factors, including the delay in time in bringing the action to trial, the time of day and lack of lighting during the sale, and “a lack of independent identification” results in “the hypothesis that a misidentification occurred.” We find no merit in this contention because both Agent Turner and Theodore Williams positively identified Mary Williams as the person from whom the cocaine was purchased on April 4, 1991. In fact, Theodore Williams testified that he knew Mary Williams even before the April 1991 transaction. This evidence was sufficient to enable a rational trier of fact to convict Williams under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Hopkins v. State, 222 Ga. App. 157 (473 SE2d 267) (1996).

2. When Williams’s case was called for trial on March 22, 1994, the State announced ready, but Williams appeared pro se and announced that she had instructed her appointed counsel, Ledford, that she planned to retain an attorney; according to Williams, Led-ford had not discussed her case with her after she was released from prison on March 8. Williams did not retain counsel before trial, however, and she stated to the court that she had not had time to prepare her defense after she was released from prison. Ledford was also present in the courtroom. He acknowledged that Williams had discharged him but stated that he was present at trial to assist Williams “as to how the trial will be conducted” at the court’s direction. He requested that Williams express any objection she had to his assistance, but no objection appears in the record. We note that before he was discharged, Ledford also moved for a continuance on the basis that he had not had sufficient contact with Williams.

The trial court refused to grant a continuance. Ledford assisted Williams during the first day of trial. After opening statements and partial direct examination of one of the State’s witnesses, the State moved for a continuance until the next day because evidence had been inadvertently left at the crime lab. Over Williams’s objection, the trial court granted the motion.

When the trial recommenced the next day, another attorney, Weaver, appeared and announced that Williams had retained him late in the afternoon the preceding day. He requested a continuance on the basis that he was not prepared for trial and on the ground that Williams admitted before the jury that she had been in prison. The trial court denied the motion, stating that the issue had been joined. Ledford requested that he be relieved from his duties because Williams had retained counsel. The trial court denied this request as well, requiring Ledford to assist Weaver, because Weaver probably was not familiar with the case. Williams acknowledged that she wanted Weaver to remain as her counsel despite the trial court’s denial of the motion for continuance. Williams therefore was assisted by two attorneys for the remainder of the trial. Additionally, Ledford hired an investigator before Williams discharged him, and the investigator was allowed to assist with the defense as well.

Williams contends that the trial court erroneously refused to continue the trial. A motion for continuance on the basis of lack of time for counsel to prepare addresses itself to the trial court’s discretion. Hibbard v. State, 208 Ga. App. 457 (430 SE2d 824) (1993). In the exercise of its discretion, the trial court may consider the conduct of the party requesting the continuance. “The reason for this is to prevent a party from using employment of counsel as a dilatory tactic.” (Citations and punctuation omitted.) Id. “Denial of continuance may be proper where defendant negligently failed to employ counsel promptly or where it appears he is using the tactic for delay. [Cit.]” Stephens v. State, 208 Ga. App. 620, 621 (1) (431 SE2d 422) (1993). See also Wehunt v. State, 168 Ga. App. 353, 356 (4) (309 SE2d 143) (1983).

Even if Ledford did not discuss her case with Williams after she was released from prison on March 8, he was not idle. During the interim between Williams’s release and trial, Ledford subpoenaed witnesses and hired an investigator to assist him. Additionally, at least through March 16 when Ledford requested that subpoenas be issued, Williams was still represented by appointed counsel, who did prepare for trial on her behalf. Unlike Shaw v. State, 251 Ga. 109 (303 SE2d 448) (1983), in which defendant made a good faith, diligent effort to obtain trial counsel, Williams has offered no reason why, after discharging appointed counsel, she failed to retain new counsel until the second day of trial. See Stephens, supra. Absent a showing of why this late employment of counsel occurred, Williams, not the State, is chargeable with the delay. Wehunt, supra at 356 (4). Under these circumstances, the trial court did not abuse its discretion in refusing to continue the trial. See id.; Stephens, supra; Hibbard, supra.

3. Williams also maintains that the trial court required her to proceed without counsel. With Williams’s consent, Ledford assisted her with the trial through voir dire, opening statements, and through about fifteen minutes of the direct examination of one of the State’s witnesses, before the trial was continued until the next day. The following day, Williams was represented by Weaver as well as Ledford and his investigator, both of whom were familiar with her defense. This case is thus distinguished from cases in which the defendants were represented only by newly appointed or retained counsel who knew nothing about the facts of the case. See Hughes v. State, 168 Ga. App. 413, 414-415 (2) (309 SE2d 409) (1983) and cases cited therein; Ware v. State, 137 Ga. App. 673, 675-676 (3) (224 SE2d 873) (1976). Although Weaver was new, he conducted extensive cross-examination of the State’s witnesses, submitted requests to charge, and examined two witnesses on behalf of Williams. In addition, it appears that his representation helped Williams win acquittals on two of the three charges against her. Williams can hardly be heard to argue that she was not represented.

4. Williams complains the trial court erroneously allowed the trial to proceed after she announced to the court that she had just been released from prison and needed time to prepare for the trial; she maintains this statement improperly placed her character before the jury. It is not clear whether the jury pool heard Williams’s two remarks about prison. But whether or not the potential jurors overheard the statements is immaterial here; Williams volunteered the information and therefore may not complain on appeal because a party may not appeal self-induced error. See Littlefield v. State, 197 Ga. App. 343, 344 (2) (398 SE2d 375) (1990).

5. Without specifically stating how a pre-trial identification was suggestive, Williams complains that the identification of her “was the unreliable product of unduly suggestive procedures creating a substantial risk of misidentification at trial.” We assume she is referring to the identification made by Theodore Williams when Agent Turner showed him several photographs of different individuals, all named “Mary Williams,” which he obtained at the Dougherty County Sheriff’s Office. We note first that Williams did not object to testimony concerning this identification and consequently waived complaint about this evidence on appeal. See Seabrooks v. State, 251 Ga. 564, 567 (1) (308 SE2d 160) (1983).

Assuming without deciding that the identification was somehow tainted, an “in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin.” (Citation and punctuation omitted.) Merritt v. State, 211 Ga. App. 228, 229 (3) (438 SE2d 691) (1993). Theodore Williams’s identification of Mary Williams did not depend on the photographic lineup. He knew Mary Williams socially even before he assisted Agent Turner with the buy because he and Mary Williams had used drugs together. We find no merit in this contention.

6. Williams contends the trial court erroneously denied her motion for directed verdict because the evidence did not show that the offense occurred at the location alleged in the indictment. Although the indictment alleged that the offense occurred on Residence Avenue, and the proof showed that it occurred on Roosevelt Avenue, the trial court did not err in denying the motion for directed verdict. A fatal variance did not exist between the allegations of the indictment and the proof at trial. The evidence showed that the sale occurred in Dougherty County. As in Hunt v. State, 219 Ga. App. 741 (466 SE2d 894) (1996), “[w]ith the exception of the location of the county in which the alleged crime occurred, . . . the specific location was not an element of the crime charged against [Williams], and the location charged in the indictment was mere surplusage. [Cits.]” Id. at 744 (4). See also Stacey v. State, 214 Ga. App. 130, 131 (447 SE2d 339) (1994).

7. Raising the same arguments discussed above, Williams contends the trial court erroneously denied her motion for new trial. We find no merit in this contention for the reasons stated in the preceding divisions.

8. Williams correctly contends she was erroneously denied a presentence hearing pursuant to OCGA § 17-10-2 (a). That statute provides in part: “Except in cases in which the death penalty or life without parole may be imposed, upon the return of a verdict of ‘guilty5 by the jury in any felony case, the judge shall dismiss the jury and shall conduct a presentence hearing at which the only issue shall be the determination of punishment to be imposed.” (Emphasis supplied.) Upon announcement of the jury’s verdict of guilty on March 23, 1994, the trial court said, “[S]he will be sentenced on April 14th at 8:30; take her into custody.” The trial court’s entry of judgment reflects that Williams actually was sentenced on March 25, 1994. No explanation appears in the record as to why Williams was sentenced on that date rather than on April 14, and the record is silent as to whether a presentence hearing was ever conducted. We consequently affirm the judgment of conviction, but because a presentence hearing was mandatory, we vacate the sentence and remand to the trial court for resentencing in accordance with OCGA § 17-10-2. See Hayes v. State, 211 Ga. App. 801, 804-805 (3) (440 SE2d 539) (1994); King v. State, 168 Ga. App. 291, 294 (6) (308 SE2d 612) (1983).

Judgment of conviction affirmed, sentence vacated and case remanded with direction.

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

Decided February 14,1997

Reconsideration denied March 10,1997.

David E. Slemons, for appellant.

Mary Williams, pro se.

Britt R. Priddy, District Attorney, Sadhana Pandey, Assistant District Attorney, for appellee.

       There is no indication in the record that Theodore Williams is related to the appellant, Mary Williams.

       The trial was noticed for March 16 but for unexplained reasons did not begin until March 22.

       We do not find a presentence hearing transcript or any other indication in the record that such a hearing was conducted.


text:
    A96A2173.
    RANDOLPH v. THE STATE.
    (484 SE2d 1)
   Smith, Judge.

Keldin Randolph appeals from his conviction on two charges of selling cocaine, OCGA § 16-13-30 (b). The evidence at trial showed that on two different dates in November 1993, Randolph approached an undercover officer in her vehicle and sold her $20 worth of crack cocaine. A camera recorded those transactions on a videotape that was played for the jury. In his sole enumeration of error, Randolph claims his trial attorney provided ineffective assistance of counsel. We affirm.

“A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Here, [Randolph] must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel.” (Citations and punctuation omitted.) Jones v. State, 217 Ga. App. 722, 723-724 (2) (458 SE2d 894) (1995).

Randolph claims his attorney failed to prepare adequately for trial and did not subpoena certain witnesses. At the hearing on the ineffective assistance claim, Randolph and his trial counsel gave very different accounts of the pre-trial investigation and preparation process. Determining the credibility of these witnesses was a matter for the trial court’s discretion. Lee v. State, 205 Ga. App. 139, 140 (421 SE2d 301) (1992). The defense attorney testified he met with Randolph several times and discussed possible witnesses, but Randolph gave him no way to find or contact any witness. Moreover, it appears these witnesses would have testified only that the person on the videotape did not appear to be Randolph. Under these circumstances, the trial court did not err in finding the attorney provided reasonably effective assistance. See Noble v. State, 220 Ga. App. 155, 156-157 (1) (469 SE2d 307) (1996) (trial court’s findings on disputed evidence not clearly erroneous); Jones, supra at 724 (counsel not ineffective for failing to track down witnesses whose whereabouts were unknown).

Decided February 14,1997

Reconsideration denied March 10,1997

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

Randolph argues his attorney should have raised an alibi defense rather than an entrapment defense. The attorney testified his investigation showed no basis for an alibi defense, and he attempted to lay the groundwork for an entrapment defense based on the undercover officer’s admission that she went on a “fishing expedition” for drug dealers. As these matters involved trial tactics and strategy left to the discretion of the attorney after consultation with the client, the trial court did not err in rejecting this ineffective assistance claim. Bevil v. State, 220 Ga. App. 1, 5 (7) (c) (467 SE2d 586) (1996); see also Berryhill v. Ricketts, 242 Ga. 447, 450-451 (3) (249 SE2d 197) (1978) (failure to raise insanity defense not ineffective assistance).

Randolph claims his attorney should have allowed him to testify. The attorney stated he discussed that issue with his client and Randolph made an independent judgment to remain silent. At the ineffective assistance hearing, Randolph admitted he agreed with his attorney that his own testimony would have harmed his defense. This claim is without merit. See Jackson v. State, 216 Ga. App. 842, 846 (4) (456 SE2d 229) (1995) (trial court did not err by refusing to second-guess trial counsel’s recommendation that defendant not testify).

Randolph’s assertions regarding the attorney’s waiver of opening statement and his filing of a demand for speedy trial are likewise without merit; these were strategic determinations within the discretion of the attorney. Tenant v. State, 218 Ga. App. 620, 622-623 (4) (462 SE2d 783) (1995); Bevil, supra. Moreover, considering the videotape evidence and the testimony of the officer, it is unlikely any of these alleged errors altered the outcome of this trial. See Gross v. State, 262 Ga. 232, 234 (1) (416 SE2d 284) (1992).

Judgment affirmed.

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

Keldin Randolph, pro se.

Lydia J. Sartain, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

       This marks the second, appearance of this case before the Court. In Randolph v. State, 220 Ga. App. 769 (470 SE2d 300) (1996), we remanded Randolph’s case to the trial court to determine whether Randolph was entitled to an out-of-time appeal. On remand, the trial court granted the out-of-time appeal and also heard evidence on Randolph’s ineffective assistance claim.