author: Smith, Judge. Pope, Presiding Judge,

text:
    A94A2170.
    COX v. THE STATE.
    (453 SE2d 471)
   Smith, Judge.

Robert Cox was charged by accusation with the offenses of discharging a pistol near a public street, OCGA § 16-11-103; cruelty to animals in the second degree, OCGA § 16-12-4 (a); reckless conduct, OCGA § 16-5-60 (b); and pointing a pistol at another, OCGA § 16-11-102. He was convicted on all counts and his motion for new trial was denied.

1. Cox enumerates the general grounds. The evidence presented at trial showed that on the evening of October 4, 1993, Andrew Brown brought his dog, Square, into downtown Athens, tied him to a parking meter on the sidewalk, and entered a bar to meet friends. About 9:30 p.m., Brown and Doug Hollingsworth heard two noises a few seconds apart that sounded like guns being fired or cars backfiring. Hollingsworth stepped outside the bar and found the dog “obviously wounded and bleeding.” He also saw Cox standing nearby with a gun. Hollingsworth testified he was angry and asked Cox sarcastically if he was having fun, whereupon Cox turned to face him, pointed the gun at him, and asked him if he “want[ed] some too.” The police were summoned and arrested Cox, who had a valid permit for the gun and had remained in the area. A passerby who witnessed the shooting identified Cox as the man he observed firing the gun at the dog.

Cox, who is mentally retarded, lives in public housing and bought the gun to protect himself. He was walking in downtown Athens toward his home shortly before 9:30 p.m. and had the feeling someone was following him when he encountered the dog. He did not recognize that the dog was leashed and thought he could not get away from the dog; he felt threatened by both the dog and persons who gathered after he shot the dog. He testified it appeared to him some of the people had sticks or pieces of iron. He admitted he must have shot the dog (although he had no recollection of the actual shooting) and that he pointed the gun at someone. It is obvious that this evidence amply supports Cox’s conviction of the crimes of discharging a pistol near a public street and pointing a pistol at another.

As to the offense of cruelty to animals in the second degree, a person is guilty of this misdemeanor “when his act. . . causes unjustifiable physical pain, suffering, or death to any living animal.” OCGA § 16-12-4 (a). Although Cox testified he never meant to hurt the dog, wilfulness, malice and intent are not elements of this offense. Miller v. State, 179 Ga. App. 217, 218 (1) (345 SE2d 909) (1986). Several witnesses testified that the dog was yelping and cowering after being shot. A veterinarian testified the dog was not seriously hurt but she believed the dog had some degree of pain. It is undisputed the dog was tied to the meter, and there is no evidence the shooting was necessary. We find this evidence sufficient to authorize the jury to convict Cox of cruelty to animals under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Willis v. State, 201 Ga. App. 182 (410 SE2d 377) (1991).

A person is guilty of reckless conduct when he “endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act. . . will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” OCGA § 16-5-60 (b). Cox admitted he knew he should not discharge the gun within the city limits; he knew he was already “in enough trouble” for shooting the dog and had no intention of shooting into the crowd; he knew he was still holding the gun when he turned and pointed it at a person; and it was possible that he threatened Hollingsworth. This conduct deviates from the standard of care a reasonable person would have exercised under the circumstances. Moreover, despite Cox’s disability, it was sufficient to show conscious disregard of a substantial and unjustifiable risk of endangering the safety of others. The jury was authorized to convict Cox of the offense of reckless conduct under the standard required by Jackson v. Virginia.

2. The State moved in limine to exclude testimony from two mental health professionals Cox sought to introduce. The trial court granted the State’s motion on the ground that Cox failed to comply with the notice provisions of Uniform Superior Court Rule 31.4. The rule requires that notice be filed and served on the State at least ten days before trial if the defense intends “to raise the issue that the defendant or accused was or is insane, mentally incompetent, or mentally ill at the time of act or acts charged against him. . . .” (Emphasis supplied.)

Cox contends the trial court erred in excluding the expert testimony because he was not seeking to introduce the testimony to put forward a defense of insanity or diminished capacity but in support of his main defense of justification. Relying upon Pugh v. State, 191 Ga. App. 394 (382 SE2d 143) (1989), he argues that USCR 31.4 does not bar the use of such testimony under these circumstances. In Pugh, this court held that expert evidence detailing “battered woman syndrome” was admissible at trial despite failure of the defendant to give timely notice pursuant to USCR 31.4. The evidence in Pugh was admitted for the purpose of establishing that the defendant was a battered woman and suffered fears common to battered women, which was relevant to her claim of self-defense. It was unnecessary for us in Pugh to determine “whether the ‘battered woman syndrome’ also raises an issue of insanity, mental illness, or mental incompetency, because the Supreme Court has specifically held [in Smith v. State, 247 Ga. 612 (277 SE2d 678) (1981)] that evidence of the battered woman syndrome is independently admissible in conjunction with a claim of self-defense.” Id. at 395. In this case, we must decide whether the testimony excluded raised an issue within the contemplation of USCR 31.4.

OCGA § 16-3-21 (a) provides that “[a] person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself . . . against such other’s imminent use of unlawful force.” (Emphasis supplied.) Although Cox relies upon Daniels v. State, 248 Ga. 591 (285 SE2d 516) (1981), in support of his assertion to the contrary, it is clear from Daniels, as well as from the statutory language, that when a claim of self-defense is raised, the defendant’s actions must be measured against an objective standard of reasonableness. Id. at 592-593 (1). Cox concedes that shooting the dog was not reasonable when viewed objectively. Nonetheless, he asserts that the testimony excluded would have established that his actions were reasonable for him, given his developmental disability. The essence of this argument, however, is that Cox’s diminished mental capacity altered his perceptions of reality so that they were unlike those experienced by a reasonable adult.

We note that the Diagnostic & Statistical Manual of Mental Disorders, 4th ed. (DSM-IV), published by the American Psychiatric Association, includes mental retardation among its definitive listings of mental disorders. The theory Cox sought to present may have been relevant; the trial court did not prevent Cox from arguing to the jury regarding hig mental disability. We hold, however, that the evidence excluded is clearly within the purview of the issues addressed by USCR 31.4. Cox having failed to provide the notice required by the rule, the trial court did not err in excluding it.

Judgment affirmed.

McMurray, P. J., concurs. Pope, P. J., concurs specially.

Pope, Presiding Judge,

concurring specially.

I agree with the majority’s conclusion in Division 2, but write separately to explain my reasons.

An act which would otherwise be a crime is justified (and therefore not a crime) if the actor reasonably believes the act is necessary to prevent harm to himself or another. The applicable standard is ob jective rather than subjective: are the circumstances sufficient to arouse the fears of a reasonable man that he or another is in danger? See Moore v. State, 228 Ga. 662 (6) (187 SE2d 277) (1972); McDonald v. State, 182 Ga. App. 509 (1) (356 SE2d 264) (1987); Coppola v. State, 161 Ga. App. 517 (2) (288 SE2d 744) (1982). The external circumstance that the victim had attacked the actor on prior occasions is relevant to show the reasonableness of the actor’s fears, see Daniels v. State, 248 Ga. 591 (1) (285 SE2d 516) (1981); but personal characteristics of the actor which may make him act unreasonably are not.

Decided January 6, 1995

Reconsideration denied January 17, 1995

Rosemary E. Myers, for appellant.

Kenneth W. Mauldin, Solicitor, Ralph W. Powell, Jr., Assistant Solicitor, for appellee.

The defenses addressed by Uniform Superior Court Rule 31.4 — insanity, mental illness and mental incompetency — form a separate category of defenses based on diminished capacity rather than justification. In these situations an unjustified, criminal act has occurred, but the actor argues he should not be deemed fully culpable due to his mental disabilities. Evidence of mental capacity is clearly relevant in such cases, but notice pursuant to USCR 31.4 is required.

Even though evidence of “battered woman syndrome” includes testimony from mental health experts, it is a defense of justification rather than diminished capacity because it is based on prior attacks upon the actor by the victim and is thus relevant to the reasonableness of her fears. Pugh v. State, 191 Ga. App. 394 (382 SE2d 143) (1989). We therefore held in Pugh that the expert testimony was admissible as relevant to the justification defense, even though it would not have been admissible in support of a diminished responsibility defense due to failure to comply with USCR 31.4.

The Pugh analysis does not help defendant in this case, however. As the reasonableness standard for justification is purely objective and defendant’s mental disability is not a circumstance which may be considered, evidence of defendant’s disability is simply not relevant to a justification defense. It could have been relevant only to a defense based on diminished responsibility, but its use for this purpose is precluded by defendant’s failure to comply with USCR 31.4. Accordingly, I agree that the trial court did not err in granting the State’s motion in limine.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A94A1953.
    KNOX v. THE STATE.
    (453 SE2d 120)
   McMurray, Presiding Judge.

Defendant was charged via indictment with one count of possession of cocaine in violation of the Georgia Controlled Substances Act and one count of driving under the influence, in that he “was in actual physical control of a moving vehicle while under the influence of a drug to the extent that it was less safe for him to drive.” The evidence adduced at his jury trial showed the following: About 5:00 a.m. on “July 6th, 1993,” Officer James W. Scott of the “D. U. I. Task Force” for the City of Forest Park, Georgia, was dispatched to the scene of a single-vehicle accident. The car was “approximately 50, 60 feet off of the roadway. . . . [Defendant was] slumped down in the car. The car engine was running, the headlights were on and the car was in drive. [Defendant’s] foot was on the brake.” Judging from the physical evidence, defendant’s car “would have had to cross over to oncoming traffic, go off the roadway and then go into the field,” to end up where it did. It took Officer Scott approximately a minute to rouse defendant “to a semi-conscious state.” Defendant was incoherent and did not know his name or where he was. Officer Scott “didn’t detect any odor of an alcoholic beverage on [defendant’s] breath or about his person or inside the vehicle compartment itself. At that point [defendant] was . . . just so out of it, [Officer Scott] knew [defendant] had to be under the influence of some type of drug.” Officer Scott asked defendant if he had been doing any drugs that evening and defendant told him that “he had smoked some marijuana earlier in the evening.” When defendant exited the car, Officer Scott observed “a glass pipe that [defendant] had been sitting on.” In Officer Scott’s experience, “similar pipes [were] used to smoke crack cocaine, just exactly like that pipe.” After defendant was unable to stand, much less perform any field sobriety tests, Officer Scott “placed him under arrest for driving under the influence of drugs.” The officer then returned to the vehicle and seized the glass pipe. Both at the scene and at the police station, Officer Scott read defendant his implied consent rights but defendant declined to submit to a blood and urine test. Residue from the glass pipe was tested by Sylvia Troutman Guice, a forensic chemist with the Georgia Bureau of Investigation Crime Laboratory. The result was positive for cocaine.

The jury found defendant guilty on each count and this direct appeal followed. Held:

1. Defendant enumerates the denial of his motion to suppress evidence, arguing that his car was illegally searched without a warrant and without probable cause, in violation of the Georgia Constitution.

“The Georgia constitutional provisions regarding search and seizure, Art. I, Sec. I, Par. XIII, are substantially the same as the Fourth Amendment provisions of the U. S. Constitution. Sears v. State, 262 Ga. 805, 807 (3) (426 SE2d 553).” Galbreath v. State, 213 Ga. App. 80, 82 (2) (443 SE2d 664). Where a person is lawfully arrested for driving under the influence of any substance, in violation of OCGA § 40-6-391 (a), the officer may conduct a warrantless search of the passenger compartment of the vehicle for the purpose of obtaining evidence of intoxication as an incident to that lawful arrest pursuant to OCGA § 17-5-1 (a) (4). State v. Elliott, 205 Ga. App. 345, 346 (422 SE2d 58). The propriety of the trial court’s ruling in the case sub judice therefore hinges on whether defendant’s arrest was lawful at the time Officer Scott seized the glass pipe.

“ ‘A “warrantless arrest” is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent (person) in believing that the accused had committed or was committing an offense. (Cits.)’ Callaway v. State, 257 Ga. 12 (2) (354 SE2d 118) (1987).” Gilbert v. State, 212 Ga. App. 308 (1), 309 (441 SE2d 785). In the case sub judice, Officer Scott had probable cause to believe that defendant had driven the vehicle off the road while under the influence of marijuana, in violation of OCGA § 40-6-391 (a) (2). Consequently, since the facts and circumstances authorized defendant’s warrantless arrest, the search of his vehicle as an incident of that lawful arrest also was authorized. State v. Elliott, 205 Ga. App. 345, 346, supra. The trial court correctly denied defendant’s motion to suppress evidence based on the ground that this search was illegal.

2. In his second enumeration, defendant contends the trial court erred in admitting testimony relating to defendant’s inculpatory “in custody statement over objection.” He argues that his statement that he had smoked marijuana that night should have been excluded from evidence by operation of former OCGA § 17-7-210 (d) because “the State had failed to disclose the statement to [defendant] pursuant to [his] discovery motion.”

“Under [former] OCGA § 17-7-210 (a) defendant is entitled to a copy of any statement given by him while in police custody. Roadside questioning [during an accident scene investigation or] after a routine traffic stop does not constitute a custodial situation. Lebrun v. State, 255 Ga. 406, 407 (3) (339 SE2d 227) (1986); Crum v. State, 194 Ga. App. 271, 272 (390 SE2d 295) (1990); Conley v. State, 181 Ga. App. 375, 376 (2) (352 SE2d 394) (1986); Wilson v. State, 173 Ga. App. 805, 806 (1) (328 SE2d 418) (1985). [In the case sub judice, defendant had not yet been formally arrested when he gave his incriminating statement.] Because defendant was not in custody, but was merely temporarily detained, the State was not required to furnish defendant’s statement concerning [his admission that he had smoked marijuana that night]. Compare Hughes v. State, 259 Ga. 227 (378 SE2d 853) (1989).” Jones v. State, 196 Ga. App. 842, 843 (1) (397 SE2d 181).

Decided January 17, 1995.

3. In his third enumeration, defendant urges the general grounds, arguing the “equal access” rule precludes his conviction for possession of cocaine, because the vehicle he was driving was a rental car which his wife and stepson also had driven.

“ ‘The equal access rule, “as it applies in the automobile context, is merely that evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver. (Cits.)” Castillo v. State, 166 Ga. App. 817, 821-822 (305 SE2d 629) (1983).’ Mendez v. State, 185 Ga. App. 1 (363 SE2d 262) (1987) [.]” Lombardo v. State, 187 Ga. App. 440, 442 (5) (370 SE2d 503). “ ‘Whether the evidence of equal access is sufficient to rebut any inference of possession ... is a question properly left to the jury.’ Ramsay v. State, 175 Ga. App. 97, 99 (7) (332 SE2d 390) (1985).” Davis v. State, 194 Ga. App. 482, 486 (4) (391 SE2d 124). Viewed in the light to uphold the jury’s verdict in the case sub judice, evidence that a glass pipe encrusted with cocaine residue was found in the bucket seat where defendant (the sole occupant) had just been seated was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that defendant was guilty, beyond a reasonable doubt, of possession of cocaine as alleged in the indictment. “ ‘ “The totality of the evidence was sufficient to connect the defendant to the possession of the drugs . . . even though the evidence would have authorized a finding that others had equal access to the [vehicle]. (Cits.)” Teems v. State, 161 Ga. App. 339, 340 (287 SE2d 774). See Pamplin v. State, 164 Ga. App. 610 (298 SE2d 622).’ Little v. State, 173 Ga. App. 512 (1) (326 SE2d 859).” Johnston v. State, 178 Ga. App. 219 (1), 220 (342 SE2d 706). Although not separately enumerated, defendant’s admission that he had smoked marijuana that night, coupled with the evidence that he drove his vehicle off the road, “is sufficient to authorize the jury’s finding that defendant was ‘(u)nder the influence of any drug to the extent that it (was) less safe for (him) to drive’ in violation of OCGA § 40-6-391 (a) (2), beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307[, supra]; Griggs v. State, 167 Ga. App. 581, 584 (6) (307 SE2d 75).” Grant v. State, 215 Ga. App. 10, 12 (449 SE2d 545).

Judgment affirmed.

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

Darrel L. Hopson, for appellant.

Robert E. Keller, District Attorney, for appellee.


author: Beasley, Presiding Judge.

text:
    A94A1887.
    COATES v. THE STATE.
    (453 SE2d 35)
   Beasley, Presiding Judge.

Uniform traffic citations were filed against Coates charging her with driving under the influence of alcohol in violation of OCGA § 40-6-391, driving an unsafe motor vehicle with defective equipment in violation of OCGA § 40-8-7, and driving with a suspended license in violation of OCGA § 40-5-121. Following a jury trial, she was convicted of all charges.

Cobb County Police Officer Rokovitz testified that he was patrolling South Cobb Drive when he came upon a vehicle in distress parked in the right through-lane of traffic. After getting out of his patrol car and approaching the vehicle, he found Coates in the driver’s seat. Her male companion, Elliot, was looking at a front wheel which had fallen off because the lug nuts had loosened. The officer testified that Coates told him she had been driving the car. As he was talking to her, he noticed that she had a fairly strong odor of alcohol about her breath, her eyes were watery and bloodshot, and she seemed to have slurred speech. She admitted that she had been drinking and smelled of alcohol. A positive breath test and a series of field sobriety tests led the officer to believe that her impairment from alcohol was above the legal limit. After arresting her, he determined that her license was suspended.

Elliot testified that the car was a little red Yugo that belonged to Coates; that he used it to go to his job, which was a short distance from where he and Coates lived; that the car was not all that roadworthy; that he rather than Coates had been driving on the night in question; that when the officer arrived on the scene, Coates was sitting in the driver’s seat turning the steering wheel so he could dislodge the front wheel; and that he had the keys in his possession and gave them to the driver of the wrecker which transported the car from the scene. A friend of Coates likewise testified that Elliot had picked her up shortly before the car broke down and that Elliot had been driving.

1. Coates contends that the court erred in denying her motion for directed verdict of acquittal on the DUI charge because of insufficient evidence that she was driving. To the contrary, there was evidence that she owned the car, was in the driver’s seat when the officer arrived, admitted to him she had been driving, and did not deny this when he arrested her. Compare Krull v. State, 211 Ga. App. 37, 38 (1) (438 SE2d 152) (1993); State v. Speir, 189 Ga. App. 254 (2) (375 SE2d 298) (1988). This evidence sufficed to raise a question for jury resolution, notwithstanding Elliot’s testimony. State v. Hill, 178 Ga. App. 669, 670 (344 SE2d 491) (1986). “ ‘The weight and credit of the evidence and the credibility of the witnesses was for the jury to determine.’ [Cit.]” Russell v. State, 174 Ga. App. 436, 437 (2) (330 SE2d 175) (1985). From this evidence, a rational trier of fact could find Coates guilty beyond a reasonable doubt of driving under the influence of alcohol. The jury was authorized not to accept an alternate hypothesis offered by Coates. Fuller v. State, 166 Ga. App. 734, 735 (1) (305 SE2d 463) (1983).

2. Coates contends that the court erred in denying her motion for directed verdict of acquittal on the defective or improper equipment charge.

Coates states that it is uncontroverted that the wheel did not come loose until moments before the vehicle came to a stop and there is no evidence that she was aware of the improperly secured wheel until the car actually stopped. However, the evidence that the car she owned and was driving was not that road-worthy, together with the other evidence, was sufficient to authorize the conviction.

3. Coates contends that the court erred in its instruction to the jury concerning the DUI charge.

This instruction was a correct statement of DUI law. Moss v. State, 194 Ga. App. 181, 182 (390 SE2d 268) (1990). The court’s instruction to the jury on intent was not impermissibly burden shifting, as suggested by Coates. See Legg v. State, 204 Ga. App. 356, 357 (2) (419 SE2d 151) (1992), and cits.

4. Coates erroneously contends that the court erred in instructing the jury that “crimes relating to equipment and inspection of motor vehicles are violations of strict liability criminal statutes, which means that although the State must prove that the accused intended to do the acts or make the omissions that are prohibited, the State does not have to prove a mental fault.” See Queen v. State, 189 Ga. App. 161, 163 (1c) (375 SE2d 287) (1988).

5. Coates contends that the court erred in failing to charge on accident in that this was the only defense to the defective or improper equipment charge.

The defense of accident is defined in OCGA § 16-2-2: “A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” The fact that there was no criminal scheme or undertaking or criminal negligence is not a defense to a “strict criminal liability” motor vehicle safety statute. The court correctly charged the jury that the State was required to prove that the accused intended to do the act or make the omissions prohibited. See Hoffer v. State, 192 Ga. App. 378, 380 (1) (384 SE2d 902) (1989).

Decided October 5, 1994

Reconsideration denied January 19, 1995.

Alice C. Stewart, for appellant.

Ben F. Smith, Jr., Solicitor, Cindi Yeager, Barry E. Morgan, As-

6. Coates contends that the court erred by failing to charge, in accordance with OCGA § 24-4-6, that to warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.

In order to obtain convictions against Coates on the DUI and defective or improper equipment charges in this case, the State was required to prove she was driving the car. In this regard, the State’s case against Coates was dependent in part on circumstantial evidence, requiring this request to charge. Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994). The evidence was close enough to render the failure not harmless. Id. at 273.

7. Finally, Coates contends that the court erred in denying her motion to suppress statements made by her while in police custody and the results of the field sobriety tests, in violation of the Fifth and Fourteenth Amendments. She claims her arrest was not supported by probable cause and she was not given Miranda warnings.

Upon seeing the car in distress in a through-lane of traffic, the officer was authorized to approach the car and make inquiry. When Coates admitted she had been drinking and driving, the officer was authorized to conduct the field sobriety tests without giving Miranda warnings. Montgomery v. State, 174 Ga. App. 95, 96 (1) (329 SE2d 166) (1985). This supported the trial court’s finding that the officer’s detention during the on-the-scene investigation was temporary. See generally Hughes v. State, 259 Ga. 227, 228 (1) (378 SE2d 853) (1989). Such detentions do not trigger the requirements of Miranda. Daugherty v. State, 182 Ga. App. 730, 731 (2) (356 SE2d 902) (1987). Moreover, field sobriety tests are not inadmissible under the Fifth Amendment because they are not evidence of a testimonial or communicative character. Hughes, supra at 228 (2b).

Coates’ conviction of driving with a suspended license is affirmed, as it is not challenged on appeal, and she is entitled to another trial on the other charges because those convictions are reversed.

Judgment affirmed in part and reversed in part.

Andrews and Johnson, JJ., concur.

sistant Solicitors, for appellee.


author: Beasley, Chief Judge.

text:
    A94A2107.
    BALLARD v. SOUTHERN REGIONAL MEDICAL CENTER, INC.
    (453 SE2d 123)
   Beasley, Chief Judge.

Ballard went to Southern Regional Medical Center to correct an error on the records concerning a broken toe he had suffered two. days earlier. While walking down a hallway he supported himself by using a handrail mounted to the wall. The handrail pulled out from the wall and Ballard fell and was injured. He sued Southern Regional, alleging that its negligent inspection and maintenance of the handrail caused his injuries. The court granted Southern Regional’s motion for summary judgment and Ballard appeals.

1. It is not disputed that Southern Regional’s duty to keep its premises reasonably safe included a duty to keep the handrail in good repair. “Having undertaken to provide a handrail, [Southern Regional] was obligated to maintain it non-negligently. [Cit.] ‘(A) business invitee may reasonably assume that the furnishings upon business premises, when they present no obvious hazard, are safe for the use for which they apparently were intended; and ordinary care requires a business proprietor, who has the opportunity to discover the condition of furnishings he places on the premises, to ascertain that they are safe for use under the conditions contemplated.’ [Cit.] Accordingly, if [Southern Regional], in the exercise of ordinary care, knew or should have known that its handrail was loose and if, but for the loose handrail, [Ballard] would [not have fallen], [Southern Regional] may be found liable for appellant’s injuries. ‘(T)he rule ... is that if the defendant, by the exercise of ordinary care, could have discovered the defect causing the injury, he will be liable for a failure to warn invitees coming upon the premises of such defect even though he did not actually know of its existence, where such defect proximately contributes to the injury.’ [Cit.]” Spencer v. Little Brownie Properties, 203 Ga. App. 324, 325 (416 SE2d 851) (1992). Ballard testified that the handrail did not look defective before the accident; he gave no testimony to the effect that it felt loose before it pulled from the wall “like an explosion.”

Southern Regional contends that summary judgment was proper because no evidence was presented that it had any superior knowledge of a dangerous condition concerning the handrail. The principle of equal or superior knowledge is not limited to slip and fall cases, but “applies to ‘static’ defective or dangerous conditions on property. [Cit.]” Ga. Ports Auth. v. Hutchinson, 209 Ga. App. 726, 727 (2) (434 SE2d 791) (1993). “ ‘ “ ‘The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner . . . and not known to the person injured that a recovery is permitted.’ (Emphasis in original.) (Cit.)” (Cit.)’ [Cit.]” Westbrook v. M & M Supermarkets, 203 Ga. App. 345 (1) (416 SE2d 857) (1992). See Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980); Sarantis v. Kroger Co., 201 Ga. App. 552 (411 SE2d 758) (1991).

There was no evidence that Southern Regional was actually aware the handrail was defective, but liability can also be founded on constructive knowledge. Flood v. Camp Oil Co., 201 Ga. App. 451, 452 (411 SE2d 348) (1991). There was no evidence that any employee of appellee in the immediate vicinity could easily have noticed the dangerous condition. See Madaris v. Piggly Wiggly Southern, 205 Ga. App. 405, 406-407 (2) (422 SE2d 273) (1992). “ ‘ “Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under that approach requires proof of the length of time the dangerous condition was allowed to exist. (Cits.)” (Emphasis supplied.) (Cit.)’ [Cit.]” Thompson v. Regency Mall Assoc., 209 Ga. App. 1, 3 (1) (432 SE2d 230) (1993). This is so because “ ‘[w]ithout such (proof) it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard.’ [Cit.]” Winn-Dixie Stores v. Hardy, 138 Ga. App. 342, 345 (4) (226 SE2d 142) (1976).

Matthew Henry, safety coordinator of Southern Regional, stated in an affidavit that its employees “constantly monitor and inspect [the] physical plant.” The affidavit does not state what that monitoring and inspection entails and does not state when the handrail in question was last inspected before the accident. It does state that Henry had no actual knowledge that the handrail was defective.

Ballard argues that Henry’s affidavit does not show any reasonable inspection procedure. It only states' that the hallway was “patrolled” on a continual basis, but gives no indication of when that was done or what measures were taken during the patrol to ensure that handrails were safe. Ballard also notes that after the accident, Southern Regional tightened another handrail near the one that gave way; he contends that the fact that this defect was also undiscovered prior to the accident shows the inspection procedure to be unreasonable. Even if the affidavit fails to establish reasonable inspection procedures, that alone does not preclude summary judgment.

Ballard cites Food Giant v. Cooke, 186 Ga. App. 253, 254-255 (1) (366 SE2d 781) (1988), for the proposition that, as movant, it is Southern Regional’s burden to show by uncontroverted evidence that it had no constructive knowledge of a defective condition, and that only then would any burden be placed upon him to produce evidence of Southern Regional’s constructive knowledge. He argues that Henry’s affidavit is insufficient as a matter of law to meet Southern Regional’s burden to produce evidence on this issue and he therefore has no burden. While Ballard’s analysis of Food Giant is correct, Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), held that “the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” As Southern Regional argued in support of its motion, on the issue of constructive knowledge of the defect there was an absence of evidence as to the period of time the condition existed. Compare Duffee-Freeman, Inc. v. Knudsen, 90 Ga. App. 111 (1) (82 SE2d 44) (1954), where there was evidence that the handrail appeared in a loosened state for more than a week.

Thus, even though Southern Regional did not produce conclusive evidence that it had employed reasonable inspection procedures, at trial Ballard would have the burden of demonstrating that the defect existed for a sufficient amount of time to allow a reasonable inspection to discover it in order to charge Southern Regional with constructive knowledge. The reason is that there is no duty to discover a defect which is not manifested until the incident causing injury. Southern Regional’s duty to warn of or repair the defect arose if, by the exercise of ordinary care, it could have discovered the defect. Spencer, supra at 325. Proof on the issue is Ballard’s burden and Southern Regional correctly pointed out that evidence of it was lacking. Lau’s Corp., supra.

2. Ballard also argues that he can recover under the doctrine of res ipsa loquitur. It can only be applied in “cases where there is no evidence of consequence showing negligence on the part of the defendant. [Cits.]” Southern Bell Tel. &c. Co. v. LaRoche, 173 Ga. App. 298, 299 (1) (325 SE2d 908) (1985). Ballard did not advance res ipsa loquitur as a basis for recovery in his complaint or amended complaint; the doctrine is first mentioned in his brief in opposition to Southern Regional’s motion for summary judgment. Southern Regional did not object to its introduction but instead responded to Ballard’s arguments in its reply to Ballard’s brief before the motion was heard, and in its brief here. The issue is before us.

“ ‘ “The elements of the res ipsa loquitur doctrine are: ‘ “(1) injury of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” ’ (Cits.) Further, ‘(t)he accident must also be “of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.” ’ (Cit.) Moreover, ‘ “(r)es ipsa loquitur should be applied with caution and only in extreme cases; . . . it is not applicable when there is an intermediary cause which produced or could produce the injury, or where there is direct unambiguous testimony as to the absence of negligence by the defendant, or where there is no fair inference that the defendant was negligent.” ’ (Cit.)” (Cit.)’ [Cit.]” U. S. Fidelity &c. Co. v. J. I. Case Co., 209 Ga. App. 61, 64 (3) (432 SE2d 654) (1993).

Southern Regional argues that this is not the type of accident which ordinarily occurs only if someone is negligent. In Ellis v. Sears Roebuck & Co., 193 Ga. App. 797, 798 (1) (388 SE2d 920) (1989), dealing with an accident on an escalator, we refused to apply res ipsa loquitur “ ‘for the reason that mechanical devices . . . get out of working order, and sometimes become dangerous . . . without negligence on the part of anyone. Any other ruling would make the occupier of premises an insurer.’ ” As explained in Ellis, supra at 798 (1), “ ‘[t]he principal basis for application of the rule of res ipsa loquitur is that the occurrence involved would not have occurred (but for) negligence, and (this) negligence (may properly be) charged to the person in exclusive control of the instrumentality. (Cits.)’ [Cits.]” Although the devices that failed here (the screws and brackets holding the handrail to the wall or the wall itself) are by no means as complicated as an escalator, they too can cease fulfilling their intended function and create a dangerous condition without someone’s negligence. See also Wilson v. Pickels, 181 Ga. App. 293, 297-298 (a) (352 SE2d 208) (1986) (Beasley, J., dissenting) (door hinge failed); Quick Shops v. Oldham, 100 Ga. App. 551, 556 (1) (111 SE2d 920) (1959) (door spring overly forceful). As this is not a type of accident that ordinarily occurs only because of negligence on the part of someone, the elements of res ipsa loquitur cannot be established and summary judgment was justified.

Decided January 19, 1995

Nick Long & Associates, Jonathan L. Leach, for appellant.

Alston & Bird, R. Clay Milling II, Dow N. Kirkpatrick II, for appellee.

As noted in Ellis, supra, one caution against applying res ipsa loquitur in premises liability cases is the danger that it would make an occupier of a premises an insurer of the safety of invitees. See also Darlington Corp. v. Finch, 113 Ga. App. 825, 827 (149 SE2d 861) (1966); Quick Shops v. Oldham, supra. The principle that the occupier is not an insurer is frequently noted. See Alterman Foods v. Ligon, supra at 624; Gaydos v. Grupe Real Estate Investors, 211 Ga. App. 811, 812 (440 SE2d 545) (1994); Good Ol’ Days Downtown v. Yancey, 209 Ga. App. 696, 697-698 (2) (434 SE2d 740) (1993). Ballard has been unable to produce evidence of negligence and to allow him to substitute res ipsa loquitur that his injuries were the result of Southern Regional’s negligence without demonstrating that negligence would have the effect of making Southern Regional an insurer of his safety.

Judgment affirmed.

Andrews and Johnson, JJ., concur.

       Summary judgment for defendant was reversed in Spencer because it was premised on the plaintiffs lack of knowledge as to the cause of the initial loss of footing which prompted her use of the handrail. The opinion did not discuss the evidence insofar as it related to defendant’s opportunity to discover the defective condition and remedy it.

       “ ‘The acts of negligence here complained of were of maintenance, and the case should not be confused with cases where the negligence complained of was improper construction which makes the person charged with liability liable whether he knew of the defects in original construction or not. (Cits.)’ ” Wilkerson v. Charles W. Bell & Assoc., P.C., 205 Ga. App. 779 (423 SE2d 711) (1992). Ballard amended his complaint to include a claim of negligent installation but later dismissed that claim.


author: Birdsong, Presiding Judge.

text:
    A94A2257.
    HUTSON v. THE STATE.
    (453 SE2d 130)
   Birdsong, Presiding Judge.

Raymond Vandoren Hutson appeals his convictions for violating the Georgia Controlled Substances Act by selling and delivering cocaine on February 11, 1992, and by possessing cocaine on March 2, 1992. Held:

1. Hutson contends the evidence is insufficient to sustain his conviction for sale of cocaine within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), because the evidence merely showed that he was present at a place where cocaine was sold. We have examined the evidence in a light most favorable to the verdict and have found the evidence sufficient within the meaning of Jackson v. Virginia, supra, to sustain Hutson’s convictions of both charges. An undercover police officer testified that on February 11, 1992, he purchased from Hutson a substance later identified by an expert witness as crack cocaine, and that another officer testified that after Hutson was arrested on March 2, 1992, a search of Hutson’s person revealed a substance later identified as crack cocaine hidden in Hutson’s shoe. This is sufficient evidence to sustain the conviction.

2. Hutson also contends the trial court erred by denying his motion for new trial on general grounds, that is, because the verdict is contrary to the evidence and without evidence to support it. This argument was properly addressed to the trial court which is vested with the authority to grant a new trial for such reasons. OCGA §§ 5-5-20; 5-5-21. Appellate courts cannot grant such new trials (Dixon v. State, 192 Ga. App. 845, 846 (386 SE2d 719); Witt v. State, 157 Ga. App. 564, 565 (278 SE2d 145)) and as we have found the evidence sufficient to sustain Hutson’s convictions, this enumeration of error is without merit.

3. Hutson also contends the trial court erred by denying his motion for a new trial because he was not timely served with matters in aggravation in accordance with OCGA § 17-10-2 so as to invoke properly OCGA § 16-13-30 (d). Review of the record, however, shows Hut-son did not impose a timely objection to the trial court’s consideration of these matters in aggravation. Therefore, any issue concerning the service of these matters was waived.

4. Pretermitting whether the trial court erred by allowing a technician from the State crime lab to testify that cocaine is a controlled substance, any error was harmless. Cocaine is defined as a controlled substance by Georgia law (OCGA § 16-13-26) and it is not error to instruct the jury that cocaine is a controlled substance as part of the trial court’s charge to the jury. Dixon v. State, 180 Ga. App. 222, 223-224 (348 SE2d 742). See Suggested Pattern Jury Instructions, Vol. II, p. 134. Accordingly, the testimony by the technician could not have harmed Hutson.

5. Hutson also contends that there were numerous occasions in which his character was placed in issue without proper justification. Review of the transcript, however, shows that Hutson posed no timely objection to the testimony which he now alleges was prejudicial. Moreover, as the transcript reveals that most of that testimony concerned the circumstances surrounding Hutson’s arrest, there was no error. “As a general rule, all the circumstances connected with a defendant’s arrest are admissible as a part of the res gestae.” Crowe v. State, 193 Ga. App. 385 (388 SE2d 24). Where evidence is relevant for the purpose of showing the circumstances of the arrest, it will not be excluded merely because it incidentally shows the commission of another crime. Sapp v. State, 184 Ga. App. 527, 528 (362 SE2d 406). Although evidence may incidentally put character in issue or may be prejudicial, it may be admitted if otherwise relevant. Coney v. State, 198 Ga. App. 272, 274 (401 SE2d 304). In this sense, in response to Hutson’s defense of mistaken identity, it was not error for an undercover officer to explain his ability to identify Hutson because of his prior contact with Hutson while the officer was a correctional officer. Additionally, in other instances the witness’ answers were made during Hutson’s cross-examination of the State’s witnesses. As defense counsel may not take chances propounding questions which may elicit damaging answers and then demand reversal on appeal, we find no reversible error. See Felker v. State, 252 Ga. 351 (314 SE2d 621); Martin v. State, 193 Ga. App. 581, 584 (388 SE2d 420). Additionally, although appellate defense counsel complains that trial defense counsel placed Hutson’s character before the jury by having him testify that he was a cocaine user, it is apparent that this testimony was part of the defense strategy to prove that Hutson was a user of cocaine and not a seller. Based on the entire record, we do not find that the testimony of which Hutson complains rises to the level of misconduct condemned in Boyd v. State, 146 Ga. App. 359 (246 SE2d 396). See Martin v. State, supra.

6. We find no merit in Hutson’s contention that the trial court violated OCGA § 15-12-142 (a) by failing to charge the jury not to discuss the case until deliberations were properly begun. The record shows the jury was initially charged on this matter after the jury was selected, before the presentation of evidence, and at the end of the first day of trial, and Hutson has identified no harm which has resulted from any occasion on which the jury was not reminded of its responsibilities. As a result, we find no error. Conley v. State, 258 Ga. 339, 340-341 (368 SE2d 502).

7. Relying on Blair v. State, 179 Ga. App. 519 (347 SE2d 337), Hutson contends the trial court erred by failing to charge, without request, “ ‘that the defendant enters upon his trial with a presumption of innocence in his favor, and that this presumption remains with him, in the nature of evidence, until rebutted by proof satisfying the jury of his guilt to the exclusion of reasonable doubt.’ ” Hutson’s reliance on Blair is misplaced. In Blair, the trial court did not charge on the presumption. In this case, the jury was charged fully on the presumption of innocence. Further, as Hutson has identified no error in the charge given, we find no error in the trial court failing to give this particular charge. See Cohran v. State, 141 Ga. App. 4, 5 (232 SE2d 355).

8. Hutson also contends the trial court erred by failing to charge, without request, on the defense of mistaken identity, circumstantial evidence, and non-participation in the sale of cocaine. The transcript shows, however, that the trial court gave a requested charge on identity as well as a charge on identity from the pattern charges, a charge on criminal intent, and a charge on circumstantial evidence. Under the circumstances we find no error.

9. Hutson alleges the trial court violated OCGA § 17-8-57 by stating, “as to the photograph, I don’t know that I officially ruled on that; but I will allow that to be introduced as evidence.” OCGA § 17-8-57 prohibits trial courts from commenting upon what has been proved or upon the guilt of the accused; it does not prevent the trial court from making rulings admitting matters into evidence. This remark did not violate OCGA § 17-8-57, and this enumeration of error is without merit.

10. Hutson contends he was deprived of effective assistance of counsel. This error was properly raised below in Hutson’s motion for a new trial. Hutson has the burden to establish that his trial defense counsel’s performance was deficient and the deficient performance prejudiced his defense. Brown v. State, 257 Ga. 277, 278 (357 SE2d 590). He had to show there was a reasonable probability the result of his trial would have been different, but for his defense counsel’s unprofessional deficiencies (Baggett v. State, 257 Ga. 735 (363 SE2d 257)), and in doing so he must overcome the strong presumption that the representation was effective. Clarington v. State, 178 Ga. App. 663, 667 (344 SE2d 485).

We measure the trial defense counsel’s performance under the circumstances existing at trial and not by benefit of hindsight. Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362). Measured in that manner, trial defense counsel’s decision to establish that Hutson was a cocaine user was part of his trial strategy. “In the absence of testimony to the contrary, counsel’s actions are presumed strategic. Stanley v. Zant, 697 F2d 955 (11th Cir. 1983), cert. denied, 467 U. S. 1219 (1984).” Earnest v. State, 262 Ga. 494, 496-497 (422 SE2d 188). Given the fact that Hutson faced a life sentence if he was convicted of selling cocaine, counsel’s decision to portray Hutson as a crack user, but not seller, was not unreasonable. Even if we were to find such a decision to be an error, such judgmental or tactical errors do not always equate ineffective assistance of counsel. Clarington, supra. Further, the fact that another trial defense counsel may have pursued a different strategy does not, ipso facto, constitute a denial of the effective assistance of counsel. Heard v. State, 177 Ga. App. 802, 804 (341 SE2d 459).

Considering the totality of the trial, especially the eyewitness testimony of the police officers, and not just appellant’s allegations of isolated errors (Clarington, supra), we are satisfied that Hutson did not meet his burden under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674), of showing that his counsel’s performance was deficient and that this deficient performance prejudiced his defense.

Further, even if Hutson’s trial defense counsel’s performance somehow had been deficient within the meaning of Strickland, we find no reasonable probability that the outcome of his case would have been different but for counsel’s performance. Thompson v. State, 191 Ga. App. 906 (383 SE2d 339); Young v. State, 191 Ga. App. 651, 653 (382 SE2d 642). Accordingly, this enumeration of error is without merit.

Decided January 19, 1995.

J. Ralph McClelland III, for appellant.

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

11. Finally, Hutson contends the trial court erred by refusing to give a requested charge on possession of cocaine as a lesser included offense of sale of cocaine. Although State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) holds that a written request to charge on a lesser included offense must be given if there is any evidence to support it, Alvarado is of no assistance in this instance because the evidence did not support such a charge. Hutson’s position on this charge was consistently that he did not possess cocaine and was merely present where someone else sold cocaine. Accordingly, there was no evidence that Hutson merely possessed cocaine for his own use. There was no error.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2318.
    ANIMASHAUN v. THE STATE.
    (453 SE2d 126)
   Birdsong, Presiding Judge.

Olefumi Animashaun appeals his conviction for driving under the influence of alcohol to the extent that he was a less safe driver (OCGA § 40-6-391 (a) (1)) and speeding (OCGA § 40-6-181). The record shows appellant’s convictions were entered on October 12, 1993, and on October 21, 1993, he filed a motion for new trial asserting the general grounds. That motion was denied on October 25, 1993. Subsequently, appellant filed a motion for reconsideration and new trial on November 8, 1993, that asserted that the trial court’s order denying his motion for new trial “was entered absent an opportunity for movant to amend his motion upon receipt of the transcript” and requesting that he be allowed to amend his motion. Thereafter, even though appellant had not requested that the decision on his motion for new trial be delayed pending preparation of the transcript (see OCGA § 5-5-40 (c)), the trial court on November 17, 1993, entered an order setting aside the order denying appellant’s motion for new trial, and setting December 1, 1993, for a show cause hearing on the motion. The record contains no amended motion for new trial or any other pleadings by appellant seeking to amend the grounds asserted in his original motion for new trial. On February 2, 1994, the trial court issued an order stating, “the defendant’s motion for a new trial and reconsideration having been filed on November 17, 1993, and not having been perfected, same is hereby denied.” On February 23, 1994, appellant filed a notice of appeal from that order. Subsequently, appellant’s appeal was dismissed because he did not file a transcript of the proceedings, and on June 13, 1994, appellant moved to reinstate his notice of appeal. This motion was granted on June 22, 1994. The record, however, shows that although the certificate of the court reporter is dated January 12, 1994, the transcript was not filed until July 12, 1994. The appeal was docketed in this court on July 18, 1994.

The sole error enumerated is that the trial court erred by charging the jury on the presumption arising from a blood-alcohol test result of .08 when appellant was charged only with violating OCGA § 40-6-391 (a) (1), driving under the influence of alcohol to the extent that he was a less safe driver. Held:

1. Our first consideration is whether we have jurisdiction over this appeal. Court of Appeals Rule 32 (d) (now Rule 41 (c)); Atlantic-Canadian Corp. v. Hammer, Siler &c. Assoc., 167 Ga. App. 257 (306 SE2d 22). Although the case became ripe for appeal when the trial court denied the motion for new trial (see OCGA § 5-6-38), this appeal is timely because the trial court vacated its order denying the motion for new trial. See Austin v. Carter, 248 Ga. 775, 777 (285 SE2d 542). Nevertheless, a defendant should not delay unnecessarily the trial court’s disposition of the case by the filing of motions to reconsider. See Holiday v. State, 258 Ga. 393, 394 (369 SE2d 241). Here, because of appellant’s inaction and the procedures used by the trial court, this appeal in a routine traffic case was not docketed in this court until eight months after the date of his convictions.

2. The State’s argument that appellant waived his right to reserve his objections to the charge by asserting other specific objections to the charge is without merit. See McCoy v. State, 262 Ga. 699, 701 (425 SE2d 646). Williams v. State, 262 Ga. 422, 423 (420 SE2d 301) is distinguishable because the appellant in Williams neither objected to the charge nor reserved his right to assert his objections.

3. Appellant’s argument that the charge given impermissibly shifted the burden of proof cannot be considered because this contention was not enumerated as error, and enumerations cannot be enlarged to include issues not enumerated. Williams v. State, 208 Ga. App. 153, 155 (430 SE2d 42); Harmon v. State, 206 Ga. App. 333, 334 (425 SE2d 343); Rigenstrup v. State, 197 Ga. App. 176, 179 (398 SE2d 25).

Decided January 19, 1995.

Emerson Carey, Jr., for appellant.

Louise Hornsby, Solicitor, J. Stratton Leedy III, Thomas L. Burton, Assistant Solicitors, for appellee.

Appellant’s other argument, that the trial court erred by charging the provisions of OCGA § 40-6-392 (b) (3), is without merit. First, the trial court did not charge the jury on the exact language of this Code section. Instead, the charge given was that “if there was at that time an alcohol concentration of 0.08 grams or more, you may infer that the person was under the influence of alcohol as prohibited by paragraphs one, two, and three of subsection A of [OCGA § 40-6-391].” (Emphasis supplied.) The emphasized words are different from specific terms of OCGA § 40-6-392 (b) (3) in that these words replace “it shall be presumed” which have been found to be prejudicially burden shifting. See Simon v. State, 182 Ga. App. 210 (355 SE2d 120); Peters v. State, 175 Ga. App. 463 (333 SE2d 436). Compare King v. State, 200 Ga. App. 511 (408 SE2d 509). Therefore, the trial court did not err by giving this charge since it concerned a matter that the jury was required to decide. Lattarulo v. State, 261 Ga. 124, 125 (401 SE2d 516).

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2361.
    HOOD v. THE STATE.
    (453 SE2d 128)
   Birdsong, Presiding Judge.

Michael Jermaine Hood appeals his convictions of one count of armed robbery, two counts of possession of a firearm during the commission of a crime, two counts of violation of the Georgia Controlled Substances Act by possession of crack cocaine and marijuana, one count of obstruction of an officer, and one count of carrying a concealed weapon. He contends the trial court erred by denying his motion to exclude evidence of the robbery victim’s identification of Hood through an impermissibly suggestive photographic lineup that allegedly was not placed before the jury in a proper procedural manner, by allowing the State to place his character in issue, and by excluding evidence of a guilty plea to another crime entered by the person Hood believed committed this robbery.

The evidence showed that a man with a red cloth over the lower part of his face entered a food store and robbed the clerk. The robber pointed a pistol at the victim, demanded the money, and told the victim that he would shoot her through the heart if she looked at him. The victim, however, did look at the robber. The victim handed over money, food stamps, and a personal check. A video camera made a tape of the robbery from which two police officers identified Hood as the robber. Subsequently, one of the officers saw Hood riding in a car driven by another person, and stopped the car. Money, food stamps, a personal check, and a handgun were taken from Hood and a red shirt was taken from the car in which he was riding. When Hood was taken to the jail, he was searched and substances later identified as cocaine and marijuana were found on his person.

That morning the victim positively identified the handgun and the red shirt as being used by the person who robbed her, and the personal check as the one she gave the robber. Later that morning, through a photographic lineup, the victim identified Hood as the person who robbed her. Held:

1. Although Hood did not challenge the sufficiency of the evidence, we have reviewed the evidence in the light most favorable to the verdict and conclude that a rational trier of fact could have found the defendant guilty of the crimes for which he was convicted beyond a reasonable doubt within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Witherspoon v. State, 262 Ga. 2 (412 SE2d 829).

2. Hood alleges that the trial court erred by admitting evidence of the victim’s identification of him through the photographic lineup because the lineup did not include his most recent photograph and he had changed his appearance by adopting a shorter haircut since the earlier photograph. The test for determining whether a due process violation occurred in cases such as this “is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” McCoy v. State, 190 Ga. App. 258, 260 (378 SE2d 888). Although Hood asserts that the difference in his haircut created a substantial likelihood of an irreparable misidentification, the record shows that the victim covered the hair of the persons in the photographic lineup while identifying Hood as the person who robbed her. Consequently, Hood’s hair played no part in the identification. Considering the factors set forth in Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) discussed in McCoy v. State, supra, we conclude that under the totality of the circumstances test of Neil v. Biggers, the procedures used in this case were not sufficiently impermissibly suggestive as to cause a very substantial likelihood of irreparable misidentification.

Relying on Jacobs v. State, 207 Ga. App. 714 (2) (429 SE2d 256), Hood also contends the investigation was tainted because the prosecution did not introduce the photographic lineup in evidence so that the jury could independently consider whether the identification was impermissibly suggestive. Assuming without deciding that such a rule exists, the transcript shows that the prosecution did not introduce the photographic lineup in evidence because Hood objected to it. Therefore, if there was error, Hood induced it and he cannot now complain that the lineup was not introduced in evidence. One cannot complain of a result he induced, procured or aided in causing. Sullens v. State, 239 Ga. 766, 767 (238 SE2d 864); Martin v. State, 193 Ga. App. 581, 584 (388 SE2d 420); Locke v. Vonalt, 189 Ga. App. 783, 787 (377 SE2d 696). Accordingly, this enumeration of error is without merit.

Decided January 19, 1995.

Daniel B. Simon III, for appellant.

George C. Turner, Jr., District Attorney, Blanchette C. Holland, Assistant District Attorney, for appellee.

3. Hood also asserts the trial court erred by allowing the prosecution to place his character in issue by including his photograph in a jail uniform in the photographic lineup and by allowing a police officer to testify that it was a photograph that was on file at the police station. Because the photograph was not introduced in evidence, any error that may have resulted from using this photograph was certainly harmless error beyond a reasonable doubt. See Johnson v. State, 238 Ga. 59, 60 (230 SE2d 869); Palmer v. State, 186 Ga. App. 892, 897 (369 SE2d 38). Moreover, as the testimony Hood complains of occurred out of the presence of the jury, Hood’s character was not impermissibly placed in issue. Merely stating that a photograph came from police department files does not place a defendant’s character in issue. Nichols v. State, 200 Ga. App. 297, 299 (407 SE2d 493). This enumeration was also without merit.

4. Hood contends the trial court erred by excluding from the evidence on relevancy grounds a certified copy of the conviction of aggravated assault of the person who was driving the car when Hood was arrested. Hood wished to introduce this conviction to show that this person was a proper suspect in the robbery. As a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse. Whisnant v. State, 178 Ga. App. 742, 743 (344 SE2d 536). In particular, “[questions of relevancy are generally matters within the trial court’s discretion and it is not error to exclude evidence that is not related to an issue at trial. Sleeth v. State, 197 Ga. App. 349 (3) (398 SE2d 298) (1990).” American Assn. of Cab Cos. v. Egeh, 205 Ga. App. 228, 229 (421 SE2d 741). Given the purpose for which Hood wished to introduce this conviction, the trial court did not abuse its discretion in excluding this evidence.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


author: Ruffin, Judge. Blackburn, Judge,

text:
    A94A2485.
    WILLIAMS v. THE STATE.
    (454 SE2d 142)
   Ruffin, Judge.

Trazet Williams appeals from the trial court’s denial of her motion for discharge and acquittal pursuant to OCGA § 17-7-170.

On August 12, 1993, Williams was indicted for possession of cocaine with the intent to distribute. The Clayton County Superior Court has four terms which start on the first Monday in February, May, August, and November. OCGA § 15-6-3 (10). Thus, Williams was indicted during the August term. She was arraigned on October 15, 1993 and filed a demand for speedy trial within that term or the next succeeding term of court. See OCGA § 17-7-170. The case first appeared on the December 13, 1993 calendar, but was not reached. It appeared again on the January 10, 1994 calendar, but because Williams’s attorney had a legal conflict in another court, he requested a three to four-day continuance. The trial court continued the case until January 31. The State does not dispute that jurors were impaneled during the week beginning January 31, the last week of the term in which Williams could be tried pursuant to her demand. However, the case was not tried that week.

On April 11, 1994, Williams moved for discharge and acquittal because she had moved for a speedy trial and the case had not been tried prior to the expiration of the November 1993 term as required by OCGA § 17-7-170. The State moved to dismiss the demand on grounds that it had never been served with the demand and that Williams had not raised the issue earlier. The court denied the State’s motion. The court also denied Williams’s motion for discharge and acquittal, ruling that the continuance of the case by Williams’s attorney constituted a waiver of the demand for a speedy trial.

1. Williams contends that she did not waive her right to a speedy trial by virtue of her attorney’s request for a continuance and that the trial court erred in denying her motion for discharge and acquittal. We agree. “The defendant may waive his right to such automatic discharge by some action on his part or on the part of his counsel. Any affirmative action of the defendant which results in a continuance of the case, or a failure to try it within the time fixed by the statute after the filing of a demand, has the effect of tolling the time. A waiver of the demand would result from a continuance granted on the motion of the accused, or from any other act on his part showing affirmatively that he consented to passing the case until a subsequent term.” (Citation and punctuation omitted.) Ballew v. State, 211 Ga. App. 672, 673 (440 SE2d 76) (1994). Although Williams’s attorney did request a continuance, “the continuance did not delay the trial past the time within which trial could be held in accordance with [Williams’s] demand” (punctuation omitted), Weidlund v. State, 191 Ga. App. 668, 670 (382 SE2d 709) (1989), because jurors were impaneled during the week beginning January 31. Thus, we do not agree with the State that the request for a three to four-day continuance prior to January 31, the last week in which a trial could be held in accordance with the demand, waived Williams’s right to a speedy trial.

The State also argues that because Williams announced ready for trial on two occasions after the November term expired, she affirmatively waived her right to a speedy trial. We disagree. “A waiver must reflect that the defendant affirmatively sought to avoid trial.” (Citation and punctuation omitted.) McKnight v. State, 215 Ga. App. 899 (3) (453 SE2d 38) (1994). We do not find this behavior to be consistent with seeking to avoid trial.

2. The State argues the trial court properly denied Williams’s motion because it was never served with the demand for speedy trial prior to the expiration of the two terms. However, the State previously moved to dismiss the demand on this ground, and the trial court denied the motion. The State does not directly challenge the correctness of that ruling, but simply reasserts that it was never served in opposition to Williams’s appeal. It is implicit in the trial court’s ruling that it determined the State had been properly served with Williams’s demand. “We are bound by that finding as this court is not a trial court and not a factfinder. [Cit.]” Whiteley v. State, 188 Ga. App. 129, 130 (1) (372 SE2d 296) (1988).

Judgment reversed.

Birdsong, P. J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I concur specially with the majority opinion to stress the importance of the specific facts of this case in rendering the majority opinion. During the second term of court, this case was continued from the trial court’s January 10, 1994 calendar, upon the request of Williams’ counsel for a three or four-day continuance. Williams’ counsel requested the continuance because he was on trial in another court which he estimated would take three or four days. Rather than granting the request for a three or four-day continuance, the trial court continued the case for 21 days, until January 31, 1994, and was then unable to try the case.

Such a continuance, not requested by Williams, cannot constitute a waiver of her speedy trial demand. Therefore, the State did not satisfy its burden of proving a waiver of Williams’ speedy trial demand. As the trial court found that the speedy trial demand had been properly filed, it was charged with notice of such at the time it continued the case to the last week of the second term. In any event, the trial court was not required to grant Williams’ request for a continuance and could have put her on trial immediately.

Decided January 19, 1995

Herbert Shafer, for appellant.

Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.

If the trial court was concerned with being able to reach defendant’s case upon the granting of an in-term continuance, it could have conditioned the granting of same upon defendant’s waiver of her speedy trial demand. The trial court controls its calendar and is aware of speedy trial requirements in those cases before it. Under the facts of this case, the trial court’s denial of defendant’s motion to dismiss the indictment must be reversed.


author: Blackburn, Judge.

text:
    A95A0365.
    FRAZIER v. THE STATE.
    (452 SE2d 803)
   Blackburn, Judge.

Louis Thomas Frazier was found guilty but mentally ill by a jury of aggravated battery, armed robbery, and three counts of aggravated assault. On appeal, Frazier contends that the trial court erred in allowing Dr. Ralph Allsopp, Ph.D., to testify concerning his mental condition during the commission of the crimes.

Frazier asserts Dr. Allsopp was not qualified to testify in the present case because Frazier was medicated during his interview with Dr. Allsopp, but was not medicated during the commission of the crimes. Frazier argues that as Dr. Allsopp was not a medical doctor, he was not qualified to give an opinion as to Frazier’s mental condition while unmedicated.

OCGA § 17-7-130.1 provides that “[a]t the trial of a criminal case in which the defendant intends to interpose the defense of insanity, evidence may be introduced to prove the defendant’s sanity or insanity at the time at which he is alleged to have committed the offense charged in the indictment or information. When notice of an insanity defense is filed, the court shall appoint at least one psychiatrist or licensed psychologist to examine the defendant and to testify at the trial. This testimony shall follow the presentation of the evidence for the prosecution and for the defense, including testimony of any medical experts employed by the state or by the defense. The medical witnesses appointed by the court may be cross-examined by both the prosecution and the defense, and each side may introduce evidence in rebuttal to the testimony of such a medical witness.” Pursuant to this Code section, the court appointed Dr. Allsopp to examine Frazier.

Decided January 19, 1995.

Ronald W. Horton, for appellant.

Robert E. Keller, District Attorney, Nancy Trehub, Assistant District Attorney, for appellee.

Dr. Allsopp testified that he was a licensed Ph.D. level psychologist employed to complete forensic evaluations for Clayton and Fulton counties. Dr. Allsopp further testified that he was aware Frazier was medicated during his interview. He was also aware that Frazier had voluntarily stopped taking his medication prior to the commission of the crimes charged. Dr. Allsopp testified that his interview was designed to elicit information regarding Frazier’s mental condition at the time of the commission of the crimes.

Frazier relies upon Chandler Exterminators v. Morris, 262 Ga. 257 (416 SE2d 277) (1992), to support his contentions. In Chandler Exterminators, the Georgia Supreme Court determined that a neuropsychologist was not qualified to give his opinion regarding the cause of a mental disorder. Id. at 259. However, the present case is distinguishable from that relied upon by Frazier.

Dr. Allsopp did not testify as to the cause of any psychosis or mental condition. Dr. Allsopp testified regarding Frazier’s mental condition at the time of the commission of the crimes based upon Frazier’s discussion of his feelings at the time of the crime. Additionally, Frazier’s own psychiatrist testified regarding his mental condition at the time of the commission of the crimes, and the effect of the medication.

In the present case, we find that the trial court did not abuse its discretion in allowing Dr. Allsopp to testify as to his court-appointed evaluation of Frazier.

Judgment affirmed.

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


text:
    A95A0507.
    EASTERLIN v. THE STATE.
    (452 SE2d 801)
   Blackburn, Judge.

Following a trial by jury, the appellant, Paul Cullen Easterlin, was found guilty of a violation of a probationary license, possession of less than one ounce of marijuana, and possession of an open container of alcohol while operating a motor vehicle. On appeal, in his sole enumeration of error, Easterlin asserts that the trial court erred in denying his motion to suppress evidence obtained following an allegedly invalid stop.

At the motion to suppress hearing, Officer Charles Pines with the Ellaville Police Department testified that on October 16, 1993, at approximately 10:15 p.m., an unknown citizen informed him that he had observed a man driving a white Datsun 280 ZX weaving down the road. The informant did not know if the man was sleepy or intoxicated. The informant followed the vehicle to a local convenience store where the man parked the vehicle in front of a gas pump and entered the store. Once inside the store, the informant noticed that the man was unsteady on his feet, his breath smelled of alcohol, and he purchased beer. The officer was also informed that the individual was accompanied by a passenger and could be apprehended if the officer hurried to the location.

The officer radioed for assistance and proceeded to the convenience store which was approximately a quarter of a mile down the road. Upon arrival, he observed a man fitting the description provided by the citizen. He also noticed a white Datsun 280 ZX automobile parked in front of a gas pump. The officer followed the vehicle as the vehicle exited the store’s parking lot and again radioed for assistance. Deputy Pless, of the Schley County Sheriffs Office, responded to the call for assistance and also proceeded to follow the vehicle. The deputy informed Officer Pines that he observed the vehicle make a wide right turn and straddle the centerline of the highway following the turn. As a result, Deputy Pless stopped the vehicle. When Easterlin exited the vehicle, his speech was slurred and he was unsteady on his feet. A strong odor of alcohol permeated his body and he appeared intoxicated. A pat-down search of his body revealed a plastic bag of marijuana, and an open container of beer was found in the vehicle. He was subsequently arrested.

“Although a tip provided by an informant of unknown reliability will not ordinarily create a reasonable suspicion of criminal activity, if the tip is detailed enough to provide some basis for predicting the future behavior of the suspect, reliability may be established if the details are corroborated by the observations of the police.” (Citation omitted.) Stanley v. State, 213 Ga. App. 95, 96 (443 SE2d 633) (1994). In the case at bar, the unknown informant provided the officer with detailed information which was subsequently verified by the investigating officers. Officer Pines was given a description of Easterlin and his vehicle, and subsequently observed Easterlin and the suspect vehicle at the location provided by the informant. Easterlin and his vehicle fit the descriptions given by the informant, and Easterlin was stopped only after he was observed by Deputy Pless driving his vehicle across the centerline of the highway. The information provided by the unknown informant, which was verified by the officer and the deputy’s observation of Easterlin’s traffic violation, provided sufficient articulable suspicion of criminal activity to justify the subsequent warrantless investigatory stop. See id.

Decided January 19, 1995.

Ellis & Easterlin, Russ F. Barnes, for appellant.

John R. Parks, District Attorney, Richard Nettum, Assistant District Attorney, for appellee.

The facts of the present case are different from the facts presented in Vansant v. State, 264 Ga. 319 (443 SE2d 474) (1994), upon which Easterlin relies. In Vansant, the officer did not observe any traffic violations committed by the defendant therein, and only stopped the defendant’s vehicle because it was a white van as described by the informant. The officer in Vansant did not observe any damage to the vehicle which was reportedly involved in a hit-and-run incident and admitted that he would have stopped any white van.

Consequently, the trial court correctly concluded that the initial stop of the vehicle was lawful, warranting the denial of Easterlin’s motion to suppress.

Judgment affirmed.

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


author: Andrews, Judge.

text:
    A94A2128.
    A94A2129.
    A94A2130.
    THE STATE v. HASSETT. THE STATE v. GENTRY. THE STATE v. NALLEY.
    (453 SE2d 508)
   Andrews, Judge.

In these cases consolidated on appeal, the defendant-appellees were charged with driving under the influence of alcohol. In each case, the trial court granted defense motions in limine to exclude either the results of a state-administered intoximeter test or evidence of the defendant’s refusal to submit to such a test, due to the arresting officer’s failure to advise each defendant of the right to have an independent test administered by a qualified person of his own choosing. These appeals by the state followed.

In each case, the arresting officer informed the defendant that after submitting to a state-administered test, he would be entitled to obtain an additional test or tests at his own expense, which is in accordance with OCGA § 40-5-67.1. However, under OCGA § 40-6-392 (a) (3) and (4), where a law enforcement officer requests a person to submit to a state-administered chemical test, he must inform him of the right to have an independent test administered by a qualified person of his own choosing. State v. Causey, 215 Ga. App. 85 (449 SE2d 639) (1994); State v. Hughes, 181 Ga. App. 464 (352 SE2d 643) (1987). Failure to do so authorizes exclusion of the results of the state-administered test as well as the refusal to submit to such a test. State v. Peters, 211 Ga. App. 755 (440 SE2d 515) (1994); Vandiver v. State, 207 Ga. App. 836 (429 SE2d 318) (1993).

Decided January 20, 1995.

Cheryl F. Custer, District Attorney, Michael M. Hawkins, S. Dabney Yarbrough, James M. Miskell, Assistant District Attorneys, for appellant.

Burkett, Schneider & Mumford, William Schneider, Robert F. Mumford, for appellees.

The state contends that OCGA § 40-5-67.1, which became effective January 1, 1993, constitutes the new implied consent law and repeals that portion of OCGA § 40-6-392 regarding implied consent. We reject that contention for two reasons. Initially, we note that OCGA § 40-5-67.1 primarily concerns the methods and procedures to effect the administrative suspension of a driver’s license based upon the use of chemical test results, and does not address the admissibility of evidence in a criminal trial. See Keenan v. State, 263 Ga. 569 (436 SE2d 475) (1993).

Further, in State v. Leviner, 213 Ga. App. 99 (443 SE2d 688) (1994), in which the state argued that OCGA § 40-5-67.1 should be ignored because OCGA § 40-6-392 contained the implied consent law, this court considered the two statutes in pari materia. After noting that OCGA § 40-6-392 was expressly referenced in OCGA § 40-5-67.1, rather than finding an irreconcilable conflict between the two statutes, we concluded that the latter was intended to provide additional consent notice requirements. Id. at 101.

It was uncontroverted in all three cases that the arresting officer did not inform the defendant of his right, after submission to the state-administered test, to have an independent test administered by a qualified person of his own choosing. Accordingly, the trial court properly granted the defendant-appellees’ motions to exclude the results of the state-administered tests or the refusal to submit to such. State v. Causey, supra.

Judgments affirmed.

Beasley, C. J., and Johnson, J., concur.


text:
    A94A2513.
    HAND v. CHECKER CAB COMPANY.
    (453 SE2d 138)
    Decided January 20, 1995.

      Gary V. Bowman, for appellant.

      Parkerson, Shelfer & Groff, I. J. Parkerson, for appellee.
   Birdsong, Presiding Judge.

Jerry Hand appeals the grant of summary judgment to the Checker Cab Company on his claim for damages arising from a vehicular accident between a car driven by Hand and a taxi cab leased from Checker Cab and driven by William Paul Flower.

William Paul Flower was not served with process and is not a party to this appeal. Although Atlanta Metro Leasing, Inc., was a party to the action below and was also granted summary judgment, Hand has not appealed the grant of summary judgment to Atlanta Metro Leasing.

Hand contends the trial court erred by granting summary judgment because a genuine issue of material fact exists as to whether Flower was an independent contractor or whether he was an employee, servant or agent. Held:

The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Checker Cab’s motion for summary judgment was supported with documents showing that Checker Cab leased the vehicle to Flower on a week-to-week basis to use as a taxi cab; that Flower had exclusive use of the vehicle during the lease period to use as a taxi cab or to use as his personal vehicle if he wanted; that Flower was licensed by the local jurisdictions in which he drove and was subject to the rules and regulations of those jurisdictions; that Checker Cab imposed no rules on Flower’s operation of the vehicle; and that Flower could receive calls from Checker Cab if he wished, but he was not required to do so. This evidence is sufficient to establish that Flower was an independent contractor. Brunson v. Valley Coaches, 173 Ga. App. 667 (327 SE2d 758); Red Top Cab Co. v. Hyder, 130 Ga. App. 870 (204 SE2d 814). Under Lau’s Corp., when Checker Cab produced evidence sufficient to show that Flower was an independent contractor, Hand was required to produce or point to specific evidence giving rise to a triable issue on this point. OCGA § 9-11-56 (e); Lau’s Corp., supra. He did not do so. As Hand did not come forward with such evidence, summary judgment was authorized.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2669.
    LARA v. THE STATE.
    (453 SE2d 137)
   Beasley, Chief Judge.

Lara appeals his conviction for aggravated battery (OCGA § 16-5-24 (a)) for shooting a stranger in the head and blinding his left eye. The State’s evidence showed the following. Around midnight a fight broke out between two groups in the parking lot of an apartment complex. Lara, a member of one of the groups, arrived at the scene and voluntarily entered the fray. Even though he had ample opportunity to leave, Lara chose instead to take what he knew to be a loaded gun away from his friend, walk into the fighting group, and fire the weapon. The victim, a member of the other group, was hit and permanently deprived of his sight.

Lara contends that he was effectively denied his right to present his defense of justification by self-defense, as authorized by OCGA § 16-3-21 (a). The trial court refused to let him introduce evidence that he had previously been the victim of a shooting by a stranger, to explain the cause of his behavior. Lara argues that the third-party attack on him was admissible under Daniels v. State, 248 Ga. 591, 593 (1) (285 SE2d 516) (1981), and that the evidence was vital to show his true state of mind and to rebut the inference that when he shot the victim, he was emboldened by alcohol, felt powerful with the gun, and was fearless.

Lara’s argument fails both legally and factually. In Daniels, a plurality of the Supreme Court determined that evidence that the defendant had been previously attacked with a knife, apparently by one other than the victim, and had received body scars was relevant to whether or not he reasonably believed that deadly force was necessary to defend himself. In the later case of Clenney v. State, 256 Ga. 123, 124 (3) (344 SE2d 216) (1986), a majority of the Supreme Court concluded that “evidence regarding a justification defense should be based solely upon the circumstances which occur between a defendant and the victim.” The Supreme Court modified Clenney in Chandler v. State, 261 Ga. 402, 407 (3) (b) (405 SE2d 669) (1991), by holding that “evidence of specific acts of violence by a victim against third persons shall be admissible where the defendant claims justification.” This court has applied Chandler as overruling Clenney only to the extent of its holding and has expressly held that “Chandler does not authorize the admission of specific acts of violence against the defendant by a third party.” Watson v. State, 206 Ga. App. 95, 97 (5) (424 SE2d 360) (1992). Accord Beck v. State, 211 Ga. App. 125, 126 (1) (438 SE2d 391) (1993).

Even if the law permitted the admission of such an act, the earlier incident was not relevant to Lara’s justification defense. It lacked similar circumstances and it far from portrayed Lara as the passive victim of a shooting. It had occurred approximately two years before the crime on trial and involved Lara’s being shot by an individual in a vehicle. Lara conceded the truthfulness of accounts of the event, which revealed that the shooting occurred after hostile contact with the individuals in the other vehicle and a direct confrontation with them by Lara.

Decided January 20, 1995.

Valpey & Walker, Gregory W. Valpey, for appellant.

Lydia J. Sartain, District Attorney, Lee Darragh, Lucy K. Henry, Assistant District Attorneys, for appellee.

It was not error to refuse to admit the evidence as part of Lara’s claim of self-defense.

Judgment affirmed.

Andrews and Johnson, JJ., concur.


text:
    A95A0007.
    PERKINS v. THE STATE.
    (453 SE2d 135)
   Beasley, Chief Judge.

An indictment was returned against Charlie Perkins and Stanley Stewart charging them with the commission of armed robbery and aggravated assault upon Zimbrick and aggravated assault upon Fagler.

Perkins was found guilty of all three counts. The trial court ordered the Zimbrick assault merged with the armed robbery and sentenced Perkins to life imprisonment on it plus 20 years’ imprisonment on the Fagler assault. On motion for new trial, the court merged the Fagler assault with the armed robbery and imposed sentences of 20 years’ imprisonment on the armed robbery and the Zimbrick assault.

Fagler and Zimbrick are two undercover narcotics officers employed by the City of Atlanta Police Department. Between 8:00 and 9:00 p.m. on December 2, 1992, they drove a truck to an apartment complex on Bankhead Highway to make a street-level drug buy. Fagler was driving and Zimbrick was sitting in the passenger seat. When they entered the driveway, the lights of the truck illuminated three black males leaning into the driver’s window of another vehicle. The area was also illuminated by street lights and apartment porch lights. It appeared that the driver of the other vehicle had just made a drug buy.

After the other vehicle left, the black males approached the driver’s side of the officers’ truck. Defendant asked “how many you want?” The officers gave him $20 and told him they wanted two dime bags. Defendant grabbed the money and stepped away from the vehicle. He brandished a large handgun, shoved it back in the window, pointed it at Fagler’s head, and told them to “give it up.” After Zimbrick turned over $180, Stewart started shouting “shoot him, shoot him.” Fagler grabbed defendant’s gun, and a struggle ensued in which Fagler would push the gun out of the truck and defendant would push it back in. During this struggle, defendant pointed the gun at Zimbrick and attempted to shoot him, but the gun would not discharge. While this was happening, Fagler retrieved his gun and fired it twice, and defendant fled. Afterward, Zimbrick found Stewart on the ground. He identified defendant as the gunman, as did a resident of a nearby apartment who observed the robbery. The resident testified that defendant passed by her apartment and spoke to her as he was fleeing the scene.

Between one-and-one-half and two hours after the robbery, Zimbrick and Fagler viewed photographs of defendant’s brother Cedric and defendant. They first looked at the photograph of Cedric and determined he was not the gunman. When they looked at defendant’s photograph, they immediately identified him as the gunman.

1. Defendant contends that the officers’ in-court identification should have been suppressed in that it was tainted by an impermissibly suggestive photographic identification procedure.

The display of a single photograph is impermissibly suggestive. Bradley v. State, 152 Ga. App. 902, 903 (264 SE2d 332) (1980). In this case, the officers viewed two photographs of brothers who presumably look alike. However, the photographs are not in the record, and a photographic display generally consists of more than two photographs. Even if a photographic identification procedure is impermissibly suggestive, the witness’ in-court identification is not inadmissible unless, under the totality of the circúmstances, there is a substantial likelihood of irreparable misidentification. Id. (“ ‘(T)he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.’ [Cit.]”) The “[i]n-court identification is not unconstitutionally inadmissible ‘ “(e)ven if the pre-trial identification is ‘tainted’ ... if it does not depend upon the prior identification but has an ‘independent origin.’ ” ’ [Cits.]” Butler v. State, 191 Ga. App. 620 (1) (382 SE2d 616) (1989).

Both Fagler and Zimbrick testified that they got a good look at defendant for several minutes in ample lighting; that they are undercover police officers who focused their attention on the suspects, particularly the defendant, because the officers knew from the outset that they would later be required to make an identification; that they were 100 percent sure of their identification of him; and that their in-court identification was based upon their recollection of the robbery rather than their viewing of his photograph shortly after the robbery. This evidence established an independent basis for the officers’ in-court identification. Id. at 621 (2).

Perkins argues that, under the component of the “totality of the circumstances” test concerning the accuracy of the witness’ description of the criminal, there was a substantial likelihood of misidentification, in that the officers’ prior description of defendant was inaccurate. Fagler stated in his police report that defendant was 511" to 61" and weighed approximately 200 pounds, and Zimbrick stated in his report that defendant weighed approximately 195 to 215 pounds, whereas defendant testified that he is 5'9" tall and weighs 159 pounds. However, Fagler testified that it was winter and defendant was wearing bulky clothing in order to make himself look larger and thus more intimidating and that this could very easily make a 170 or 180-pound man look like he weighed 200 pounds.

Given this explanation, we cannot say that under the totality of the circumstances there was substantial likelihood of irreparable misidentification. “Short of that point, such evidence is for the jury to weigh.” Manson v. Brathwaite, 432 U. S. 98, 116 (97 SC 2243, 53 LE2d 140) (1977).

2. Defendant contends that the court improperly sentenced him by not merging the sentences for both convictions of aggravated assault with the conviction of armed robbery.

A defendant may not be convicted of more than one crime if one crime is included in the other. OCGA § 16-1-7 (a) (1). Aggravated assault is not included in armed robbery as a matter of law, but it may be included as a matter of fact. Hambrick v. State, 256 Ga. 148, 150 (4) (344 SE2d 639) (1986). In Hambrick, the defendant’s act of pointing the pistol at the victims was the act underlying both the convictions for attempted armed robbery and for aggravated assault, so the convictions of aggravated assault merged with the attempted armed robberies. Under the evidence in this case, the defendant’s act of pointing the gun at Fagler was the act underlying the armed robbery of Zimbrick, and the robbery was completed before the defendant committed an aggravated assault upon Zimbrick by pointing the gun at him. Thus, the crimes of armed robbery and aggravated assault upon Zimbrick did not merge. Harvey v. State, 233 Ga. 41, 42 (1) (209 SE2d 587) (1974); Lambert v. State, 157 Ga. App. 275 (277 SE2d 66) (1981).

Judgment affirmed.

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

Decided January 20, 1995.

Rodney S. Zell, for appellant.

Lewis R. Slaton, District Attorney, Bill Fincher, Carl P. Green-berg, Assistant District Attorneys, for appellee.