author:
Carley, Chief Judge.
      Beasley, Judge,

text:
    A89A2084.
    PARRISH v. THE STATE.
    (391 SE2d 797)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of possession of cocaine with intent to distribute and possession of a weapon during the commission of a crime. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. In the early pre-trial stages of the case, appellant was represented by retained counsel who filed several discovery motions, including a request for production of a copy of any in-custody statement made by appellant. See OCGA § 17-7-210. This retained counsel was subsequently allowed to withdraw and, at trial, appellant was represented by the public defender. Upon the call of appellant’s case, the public defender did not seek a continuance for additional preparation time but, instead, he announced that he was ready to proceed with the trial. Without objection, the State introduced evidence of certain oral statements that had been made by appellant to the arresting officers. Appellant, who is now represented by different counsel, enumerates as error the trial court’s failure to conduct a pre-trial hearing on the request for production of a copy of his in-custody statements.

OCGA § 17-7-210 does not mandate that the trial court conduct a pre-trial hearing. It provides for the exclusion from evidence of a defendant’s in-custody statement if a copy of it has been requested, but has not been provided by the State. There is no support in the record for appellant’s assertion that the State did not comply with the pretrial request of his original counsel. The public defender announced that he was ready to proceed with the trial and, had the State not complied, a motion in limine to exclude evidence of appellant’s in-custody statements presumably would have been made at that time. Moreover, even assuming that the State may not have complied with OCGA § 17-7-210, the failure of the public defender to object to the evidence of appellant’s in-custody statements when it was proffered at trial would nevertheless constitute a waiver of that non-compliance. Henderson v. State, 162 Ga. App. 320, 322 (3) (292 SE2d 77) (1982). Appellant urges that the requirement that there must be an objection to non-compliance by the State should not be enforced because the State misled the trial court and the public defender into believing that no pre-trial discovery request had been filed. However, there is no support in the record for such an assertion. What the record shows is the State’s entirely truthful observation that no pre-trial motion to suppress had been filed.

2. Although appellant’s original counsel had also filed a request that a Jackson v. Denno hearing be conducted prior to trial, no such pre-trial hearing was ever held. During the course of the trial itself, the public defender did not renew the request for a Jackson v. Denno hearing and did not object to the introduction into evidence of testimony regarding appellant’s statements on the ground that such a hearing had not been conducted. The trial court’s failure to conduct a pre-trial Jackson v. Denno hearing on the voluntariness of appellant’s statements is enumerated as error.

Appellant was not entitled to have a Jackson v. Denno hearing conducted prior to trial. Jarrell v. State, 234 Ga. 410, 416 (3) (216 SE2d 258) (1975). The failure of the public defender to renew the request at trial or to object to the introduction of the evidence of appellant’s statements on the ground that a preliminary Jackson v. Denno hearing had not been held constitutes a waiver. “ ‘[D]ue process does not require a voluntariness hearing absent some contemporaneous challenge to the use of the [evidence]. Therefore, appellant had a right to a voluntariness hearing only upon challenging [his statements’] introduction into evidence. [Cits.] It follows that this enumeration of error presents no ground for reversal.’ [Cits.]” Perez v. State, 182 Ga. App. 628, 630 (4) (356 SE2d 706) (1987).

3. Appellant enumerates as error the denial of his motion for a directed verdict of acquittal.

The evidence, construed most favorably for the State, was as follows: Responding to a tip from a confidential informant regarding a currently transpiring drug transaction, officers discovered that appellant and four others were standing on the porch at the specified address. A search of the five individuals revealed no contraband in their immediate possession. However, $700 was found hidden in appellant’s underwear. A very short distance from appellant’s location on the porch, the officers found a loaded pistol beside a set of keys to his car. In the yard, some ten-to-twelve feet from the porch, the officers also found a plastic cup which contained 39 individual bags of cocaine. A search of appellant’s car disclosed $1,058 in cash, a box of ammunition of the same type as that found in the loaded pistol on the porch, two more loaded pistols, and a bag containing a list of initials with corresponding monetary amounts. This evidence, although circumstantial, was sufficient to authorize a rational trior of fact to find beyond a reasonable doubt that appellant was guilty of possessing the cocaine that was found in the yard and was guilty of possessing the pistol that was found in close proximity to him on the porch. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. The asserted ineffectiveness of the public defender’s representation of appellant has been raised on appeal. The record shows that appellant’s appellate counsel filed a timely notice of appeal. Thereafter, the public defender filed a timely motion for new trial. However, there is nothing in the record to show that appellant or his appellate counsel authorized, were aware of or participated in the public defender’s motion for new trial. Under these circumstances, neither Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987) nor Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988) are authority for the proposition that the issue of the ineffectiveness of appellant’s trial counsel has been waived. “In the present case, appellate counsel did not represent [appellant] at trial or at the motion for new trial. Therefore, the requirement of Thompson that the issue of ineffectiveness must be raised at the time of the amended motion for new trial by a new attorney who files a motion for new trial does not preclude the issue here. . . . [T]he requirement of Dawson v. State, supra, that an evidentiary hearing must be requested at the time of an amended motion for new trial does not apply to a case where the appellate counsel did not participate in the motion for new trial, and the issue of ineffectiveness of counsel is raised for the first time on appeal. Although appellant should have by now filed a request for an evidentiary hearing, he is not barred from proceeding with his claim on this account. Since the claim was only raised on appeal, there was no opportunity for a hearing before the trial court; it is not unreasonable that the case be remanded for a hearing at this point.” Johnson v. State, 259 Ga. 428, 430 (3) (383 SE2d 115) (1989). Accordingly, this case must be remanded for an evidentiary hearing on the issue of the asserted ineffectiveness of the public defender. “If the trial court finds [appellant] was denied effective assistance of counsel, he will be entitled to a new trial. If the court finds adversely to [appellant], [appellant’s] right to appeal that order within thirty days is preserved. [Cit.]” Brooks v. State, 187 Ga. App. 92, 94 (2) (369 SE2d 349) (1988).

5. Appellant’s remaining enumerations of error have been considered and found to be without merit.

Judgments affirmed and case remanded with direction.

McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope and Cooper, JJ., concur. Deen, P. J., and Beasley, J., concur in part and dissent in part.

Beasley, Judge,

concurring in part and dissenting in part.

1. Before setting out the basis for dissenting, which is only as to Division 4, it is necessary to state that I concur in all other divisions except Division 1. Although I agree with its result, I do not read the transcript as showing “the State’s entirely truthful observation that no pre-trial motion to suppress had been filed.”

The parties had been arguing about the admissibility vel non of the statements made by the confidential informant to the witness and about whether the informant’s reliability was a relevant subject of inquiry by the State. Its counsel stated: “There have been no motions filed in this case. I, of course, have opened up my file to [defendant’s counsel].” While he may have been targeting the lack of a pretrial motion to suppress, it is not clear, and the court could conclude that there were no motions, which was not correct.

2. Defendant was sentenced on March 3, 1989. Appellate counsel, who was not the trial counsel, filed a notice of appeal on March 14. Appellate counsel apparently was the attorney whom defendant was considering hiring to serve as trial counsel. After the selection of the jury by the public defender on Monday, February 27, the court stated: “Mr. Parrish, if you intend to talk with Mr. Douglass [current appellate counsel], be sure to get in touch with him and let him know to be here Friday morning. Otherwise, Mr. Davis [the public defender who tried the case] will be representing you in this case.”

After Douglass filed the notice of appeal, the public defender filed the motion for new trial and obtained the transcript and a hearing date. The appeal would have been dismissible as premature if the notice had been filed after the motion but before the ruling thereon. See Brooks v. State, 187 Ga. App. 92, 93 (2) (369 SE2d 349) (1988). After a delayed hearing on the motion, it was denied. It contained no claim of ineffective assistance of counsel.

Since appellate counsel had entered the case no later than eleven days after sentencing, he could have filed a timely motion for new trial based on the now-asserted complaint, which is directed at trial counsel’s action and not at an erroneous ruling of the trial court. He also had the opportunity to amend the motion which was filed, so as to present the issue for ruling by the trial court. He chose instead, on behalf of defendant, to bypass the trial court and raise it for the first time on appeal.

The underlying principle guiding these cases is that the claim of ineffectiveness of counsel must be raised “at the earliest practicable moment” or it is waived. Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987); Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988). Since in this case that occurred with new counsel at the trial court level, the question is waived in this direct appeal. The cases cited by the majority relate to different circumstances.

Decided March 7, 1990.

Orion L. Douglass, for appellant.

Glenn Thomas, Jr., District Attorney, for appellee.

I am authorized to state that Presiding Judge Deen joins in this opinion.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    A90A0045.
    LAMB v. TRETIAK.
    (391 SE2d 722)
   Sognier, Judge.

T. Gordon Lamb d/b/a Lamb and Associates (“Lamb”) brought suit against Robert E. Tretiak d/b/a Apollo Computer Services and Tandy Corporation d/b/a Radio Shack to recover damages Lamb allegedly incurred in his purchase of certain computer hardware and software. Lamb subsequently dismissed Tandy Corporation from the suit and a bench trial ensued. The trial court awarded Lamb $2,900 and he appeals.

1. Appellant contends the trial court erred by failing to specify in its order the nature of the damages awarded and the reason or source of the damages. “However, as rewritten by the enactment of Ga. L. 1987, p. 1087, § 1, which is controlling here, OCGA § 9-11-52 (a) now requires separate specific findings of fact and conclusions of law in non-jury trials only ‘upon request of any party made prior to such ruling, . . .’ Subsection (c) provides, inter alia, that ‘(w)hen findings or conclusions are not made prior to judgment to the extent necessary for review, failure of the losing party to move therefor after judgment shall constitute a waiver of any ground of appeal which requires consideration thereof.’ ” Doe v. Chambers, 188 Ga. App. 879, 881 (2) (374 SE2d 758) (1988). Appellant does not refer this court to any request for separate written findings and conclusions made prior to the court’s ruling, and our review of the record and transcript has not disclosed such a request by either party. Further, although subsection (c) of the statute refers to “the losing party” and appellant here successfully recovered on his suit, we interpret the statute to apply to parties such as appellant who, while qualifying as the “winning party” in one sense, come within the purview of OCGA § 9-11-52 (c) in that they “lost” something in the judgment to which they felt entitled and subsequently file an appeal of that judgment enumerating error regarding that “lost” item. Accordingly, since appellant failed to move the court for specific findings of fact after judgment pursuant to OCGA § 9-11-52 (c), appellant has waived any objection. Doe, supra at 881 (2); Ruff v. Central State Hosp., 192 Ga. App. 631, 632 (1) (385 SE2d 734) (1989).

Decided March 7, 1990.

Lamb & Associates, David S. Beale, for appellant.

T. Gordon Lamb, pro se.

Robert Tretiak, pro se.

2. Appellant contends the trial court erred by failing to award him the proper amount of damages, contending that unrebutted evidence established he was entitled to recover from appellee a sum exceeding $26,000. Although appellant asserts he was entitled to recover for the sums he expended to hire consultants and others to perform duties appellee was supposed to perform, the trial court was authorized to conclude from the plain language of the contract between the parties, which was admitted into evidence, that the agreement placed no duty on appellee to perform these services. Although, as appellant correctly notes, most of his evidence of damages was unrebutted, the trial court was authorized to conclude from the evidence that was presented that these damages stemmed not from computer software problems, which constituted the sole basis for appellant’s action against appellee, but from computer hardware problems, which appellant had resolved with Tandy Corporation. After reviewing the transcript, we disagree with appellant that the trial court failed to recognize the difference between computer hardware and computer software when determining the type of damages to which appellant was entitled. “In a bench trial the court sits as the trier of fact and his findings shall not be set aside unless clearly erroneous. The ‘clearly erroneous’ test is the same as the ‘any evidence rule.’ Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.” (Punctuation and citations omitted.) Gulf Winds v. First Union Bank, 187 Ga. App. 383, 385 (370 SE2d 508) (1988). As there is evidence to sustain the amount of damages awarded by the trial court, we cannot disturb it. See id. at 386 (1).

Judgment affirmed.

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


text:
    A90A0311.
    GAMBLE v. THE STATE.
    (391 SE2d 801)
   Sognier, Judge.

Michael Fillip Gamble was convicted of four counts of armed robbery and he appeals.

The evidence adduced at trial showed that on July 11, 1988, the Burger King restaurant on Highway 80 in Dublin was robbed shortly after opening by a man wearing a gorilla mask who forced the restaurant’s employees to enter the cooler at gunpoint and then had the manager open the safe. On July 15, 1988, the McDonald’s restaurant on Highway 441 in Dublin was robbed at gunpoint after closing by a man wearing a gorilla mask and a McDonald’s uniform who herded the employees into the cooler and emptied the cash registers. On August 25, 1988, the Dublin Burger King was again robbed, this time at closing, by a man armed with an automatic pistol and wearing a gorilla mask, using the same method.

On the morning of August 29, 1988, shortly after the Wendy’s restaurant on Highway 441 in Dublin opened, appellant, who was known to several of the restaurant employees, entered the restaurant and went into the rest room. He stayed in the rest room approximately 45 minutes, prompting the manager to send an employee who knew appellant to see if appellant needed assistance. Appellant left soon after, and the employees noticed his distinctive red tennis shoes. Appellant was then seen by restaurant employees pacing on a path connecting the restaurant to a motel next door. Shortly thereafter, a man armed with an automatic pistol, wearing a gorilla mask, dark pants, red tennis shoes, and a white towel on his head, entered the restaurant, herded the employees into the cooler and robbed the manager of approximately $510, a bank bag, and several employee paychecks and IOUs. Several employees recognized either the voice, the gait, or the shoes of the masked robber as being that of appellant. When the employees emerged from the cooler, they saw a car which several of them recognized as the one usually driven by appellant leave the motel parking lot, and two employees followed appellant’s car in their own vehicle, while others notified the police.

Within minutes of receiving a lookout for appellant’s car, Officer Gregory Melton of the Dublin Police Department observed a vehicle matching the description of the lookout being followed by a second vehicle with two occupants who attracted Melton’s attention by waving and pointing toward the car in front. Melton ran a check on the first vehicle’s license plate and discovered it was registered to appellant’s father, Ruben Gamble. Melton drove his vehicle between the two cars, turned on his blue lights and siren, and pursued the first vehicle. The driver of the car, later identified as appellant, ignored the police car for several blocks and continued to drive until he pulled into the carport at his father’s home. Melton called for assistánce, parked his car behind appellant’s, and both Melton and appellant exited their vehicles. Appellant approached Melton and asked why he had been followed. The two Wendy’s employees identified appellant to Melton as the robber, and appellant denied this.

Officer Brenda Davis responded to Melton’s call for assistance. Davis patted appellant down, finding a large bundle of cash and a pair of black gloves in appellant’s pocket, and arrested appellant, placing him in the back of Melton’s police car. Melton approached appellant’s vehicle and through the open window spotted a gorilla mask, a towel, and a bank bag on the driver’s side front floorboard. He reached inside the car and removed these items, placing them on the car’s roof.

Ruben Gamble first consented, but then withdrew consent to search the car and residence. A search warrant was then obtained, and upon execution of the search warrant for the car, a .45 caliber pistol was found between the front seats of the car. The bank bag was found to contain a number of Wendy’s paychecks and IOU’s from Wendy’s employees.

1. Appellant first enumerates as error the trial court’s denial of his motion to suppress the evidence removed from the car by Melton. Appellant argues that no proper grounds for the search or seizure of these items existed. We do not agree. Contrary to appellant’s argument, “[t]he fact that the appellant was ... in a patrol car at the time the search was conducted does not preclude a finding that the search was valid incident to his arrest. ‘It is apparent that the holding of the Supreme Court in [New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981)] is that a search of the passenger compartment of an automobile recently occupied by an arrestee is a valid search incident to an arrest, even if the arrestee had no “immediate control” of the area at the time the search was conducted. The decisive factor is whether the arrestee was, at the time of his arrest, a “recent occupant” of the automobile, not whether the automobile and its contents were in his immediate control at the time of the search.’ [Cit.]” McDowell v. State, 172 Ga. App. 643 (1) (324 SE2d 211) (1984). Although the trial court did not deny appellant’s motion on this basis, a trial court’s ruling will be affirmed if it is right for any reason. State v. Speir, 189 Ga. App. 254, 255 (375 SE2d 298) (1988). Thus, the trial court did not err by denying appellant’s motion to suppress.

2. Appellant contends the trial court erred by denying his motion for a mistrial made when the State improperly placed him in the position of having to exercise his constitutional right against self incrimination by suggesting that he stand and remove his jacket in the jury’s presence. We find no error.

First, the State never suggested to appellant or directed him to remove his jacket. Rather, the remark was made by the prosecutor to a witness for the State. When the witness said she could not ascertain whether the person she observed robbing the Burger King had a body build similar to that of appellant because appellant was now wearing a suit, the prosecutor asked her “[w]ould it help if [appellant] . . . stood and removed his jacket?”

Decided March 7, 1990.

Larsen & Flanders, H. Gibbs Flanders, Jr., for appellant.

Ralph M. Walke, District Attorney, Tyson Blue, Assistant District Attorney, for appellee.

Moreover, although the trial judge denied the motion for a mistrial, he instructed the jury to disregard the remark, and reminded the jury that appellant had the absolute right not to take the stand and they were to draw no inferences from his refusal to do so. Appellant did not renew his motion for mistrial after the trial court’s curative instructions, and “ ‘[sjince the rule requiring renewal of a motion for a mistrial following curative instructions has been retained in criminal cases, the issue has not been preserved for appellate review. (Cits.)’ [Cit.]” Williamson v. State, 188 Ga. App. 307, 308 (2) (372 SE2d 685) (1988).

3. Appellant enumerates the general grounds, specifically arguing that the evidence in regard to the first three robberies was entirely circumstantial. This enumeration is devoid of merit. Although “[t]o 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,” OCGA § 24-4-6, “it was not necessary for the [S]tate to prove that it was impossible for the [first three offenses] to have been committed by anyone else, or that they might not, by bare possibility, have been done by another. [Cit.]” Schmalz v. State, 177 Ga. App. 634, 635-636 (341 SE2d 11) (1986). Under the facts of this case, the evidence was overwhelming in pointing to appellant as the perpetrator of the other three robberies, although that evidence was largely circumstantial. Witnesses identified the gorilla mask found in appellant’s car as the one worn in the first three robberies as well as the last, and other similarities were shown between the methods used in all robberies. The jury was authorized from that evidence to convict appellant of the crimes charged. This court does not weigh the evidence, but only determines its sufficiency, and we find the evidence in this case more than sufficient to meet the required standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    A90A0585.
    KO et al. v. HABERSHAM FEDERAL SAVINGS BANK.
    (391 SE2d 723)
    Decided March 7, 1990.

      Peters, Peebles, Talley & Townsend, Charles F. Peebles, Simmons, Warren & Szczecko, Joseph Szczecko, for appellants.

      Aiken & Ward, Annette K. McBrayer, Lewis E. Hassett, for appellee.
   Deen, Presiding Judge.

On April 4, 1989, the trial court granted summary judgment for appellee in its action against the appellants to recover on an $850,000 promissory note secured by certain real property and an assignment of lease, rents, and profits. On April 26, 1989, the appellants filed a notice of appeal from that grant of summary judgment, but dismissed the notice of appeal on June 2, 1989. In the meantime, the appellants also had filed a motion for reconsideration or motion to set aside the judgment on May 4, 1989. On June 26, 1989, the trial court denied that motion. On July 18, 1989, the appellants filed another notice of appeal, regarding both the grant of summary judgment on April 4, 1989, and the denial of the motion to reconsider or set aside judgment on June 26, 1989. On July 27, 1989, the trial court entered an order setting the amount of the supersedeas bond.

The appellants’ enumerations of errors attack the grant of summary judgment, the denial of the motion to reconsider or set aside the judgment, and the order requiring the supersedeas bond. Insofar as this appeal is from the order of April 4, 1989, granting summary judgment for the appellee, it must be dismissed as untimely because the notice of appeal was not filed until July 18,1989; insofar as the appeal is from the denial of the motion to set aside, it must be dismissed for failure to comply with the discretionary appeal procedures required by OCGA § 5-6-35 (a) (8). Alvin Lee Co. v. Garmon Elec. Contractors, 190 Ga. App. 159 (378 SE2d 384) (1989). The appeal from the order setting the supersedeas bond must also be dismissed, because there was no notice of appeal from that order. See Simpson v. Simpson, 233 Ga. 17, 22 (209 SE2d 611) (1974).

Appeal dismissed.

Pope and Beasley, JJ., concur.


author: Carley, Chief Judge. Beasley, Judge,

text:
    A89A2336.
    KING v. THE STATE.
    (391 SE2d 769)
   Carley, Chief Judge.

Appellant shot one of his two roommates and was indicted for aggravated assault. He was brought to trial before a jury and testified that he had fired the shot in self-defense. Appellant was found guilty and he appeals from the judgment of conviction and sentence that was entered by the trial court on the jury’s verdict.

1. At the time of trial, the victim was incarcerated for an alleged drug violation. The State made a pre-trial motion in limine to preclude the victim’s status as an arrestee from being used for impeachment purposes. The trial court granted the motion, holding that only certified copies of the victim’s prior convictions would constitute admissible impeachment evidence. This evidentiary ruling is enumerated as error.

The record shows that the State’s motion was directed solely toward preclusion of the use of the victim’s arrest for general impeachment purposes. At no point did appellant suggest that it was not merely the victim’s arrest but, rather, the possibility that the victim had made a specific “deal” for his testimony against appellant that would be the topic to be pursued for impeachment purposes. Compare Hines v. State, 249 Ga. 257 (2) (290 SE2d 911) (1982); Henderson v. State, 161 Ga. App. 211, 212 (1) (288 SE2d 284) (1982). In granting the motion, the trial court merely ruled that evidence as to the victim’s arrest, as opposed to certified copies of his prior convictions, would not be admissible for general impeachment purposes. Accordingly, there is nothing in the record to support the assertion that the trial court’s grant of the motion erroneously served to preclude appellant from cross-examining the victim as to the possible existence of a specific “deal” for his trial testimony. Compare Hines v. State, supra; Henderson u. State, supra. In ruling that the victim’s status as a mere arrestee would not be admissible for general impeachment purposes, the trial court did not err. “While a witness may be discredited by proof of general bad character or conviction of a crime involving moral turpitude, it is not competent to discredit him by showing that he has committed, been arrested for, confined for, or even indicted for such an offense. [Cits.] ... It is necessary to introduce an authenticated copy of the record of the court in which he was convicted. [Cits.]” McCarty v. State, 139 Ga. App. 101, 103 (227 SE2d 898) (1976).

2. The trial court refused to allow appellant to cross-examine the State’s witnesses as to their knowledge of the victim’s use of drugs on occasions other than the night in question. This ruling is enumerated as error.

It is urged that such knowledge on the part of the State’s witnesses would be relevant evidence which would support appellant’s claim that he had acted in self-defense. However, the fact that others may have known of the victim’s prior use of drugs would in no way be relevant and probative evidence either of the victim’s general reputation for violence or of the reasonableness of appellant’s own personal belief that use of deadly force was necessary in order to defend himself on the specific night in question. See Wood v. State, 258 Ga. 598, 599 (3) (373 SE2d 183) (1988). There was no error.

3. The trial court’s refusal to allow witnesses to be examined as to their knowledge of the existence of prior difficulties between appellant and the third roommate is enumerated as error.

We are cited no instance wherein appellant was ever denied the opportunity to pursue this topic. However, even assuming that the record did show such an occurrence, there was no error. The existence of prior difficulties between appellant and the third roommate obviously has no relevancy whatsoever to the determination of whether appellant had committed an aggravated assault or had acted in self-defense when he shot the victim.

4. On cross-examination of a State’s witness, appellant attempted to elicit an opinion as to whether the victim had been under the influence of cocaine on the night in question. The trial court ruled that the witness could testify to his observations but could not testify to his opinion that the victim was under the influence of cocaine. This evidentiary ruling is enumerated as error.

Assuming without deciding that the trial court did err (see Lawrence v. State, 157 Ga. App. 264 (277 SE2d 60) (1981)), the record nevertheless shows that, prior to the trial court’s ruling, appellant had already elicited the witness’ opinion that the victim was “under the effect” of drugs because he “had been messing with” cocaine on the night in question. The record also shows that, after the trial court’s ruling, appellant elicited the witness’ further opinion that the victim had been “high.” Thus, the trial court’s intervening ruling merely precluded the witness from stating his opinion on three, rather than two, separate occasions. If error at all, this exclusion of what clearly would have been cumulative testimony was certainly harmless. Pope v. State, 178 Ga. App. 148 (1) (342 SE2d 330) (1986).

5. The trial court did not err in refusing to order the State to conduct a search to determine whether the. victim had prior convictions and, if he did, to provide appellant with the relevant information. Hines u. State, supra at 258 (1).

6. In response to the trial court’s inquiry concerning exceptions to the charge, appellant’s counsel merely responded that she had none. Accordingly, the right to enumerate error in the charge was waived. White v. State, 243 Ga. 250 (253 SE2d 694) (1979).

7. Appellant’s remaining enumeration of error is predicated upon the asserted erroneous “cumulative effect” of the trial court’s evidentiary rulings. This enumeration of error presents nothing for review. Firestone Tire &c. Co. v. Pinyan, 155 Ga. App. 343, 352 (9) (270 SE2d 883) (1980). Taylor v. State, 183 Ga. App. 314, 317 (11) (358 SE2d 845) (1987).

Judgment affirmed.

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

Beasley, Judge,

dissenting.

I respectfully dissent with respect to Division 1. The curtailment of cross-examination of the victim-witness about his current incarceration, which cross-examination was sought to unearth any motive of self-interest which might skew the manner of the witness’ testimony, violated the Sixth Amendment. The situation here is similar to that which was presented in Hines v. State, 249 Ga. 257, 258 (2) (290 SE2d 911) (1982). Defendant sought to undermine the witness’ credibility by showing a bias to gain favor with the State because of his current predicament. He was not to be limited in this effort by proof of a prior conviction which, it is true, would have been a general attack on his credibility. Id.

The majority views the positions taken by each party and the court’s ruling too narrowly. Two subjects were at issue at the beginning of the trial.

Defense counsel noted that she had asked the State earlier for ■copies of criminal records of witnesses including defendant and that she had learned that Patman was incarcerated and had a criminal record with involvement in drugs. The court asked if the State had anything impeaching, to which the State complained that it had only recently received the defendant’s motion to compel the criminal records and was not obligated to seek out criminal history of witnesses, correctly relying on Hines, supra at 258 (1).

The district attorney also stated that he had learned that Pat-man was in jail on a drug charge. He moved in limine “that defense counsel be permitted to impeach Mr. Patman only through the authorized methods of impeachment, and as far as a criminal history is concerned, that would be a certified copy of a felony conviction, that she be not allowed to inquire into his custody at this time, either in the Gwinnett County Jail or Fulton County Jail, or that drug arrest.” The court ruled that the State was not compelled to obtain and provide criminal history, and that only a certified copy of conviction could be used to impeach a witness. It granted the motion in limine, precluding evidence that Patman had been arrested and was in jail because it was “not relevant.” It explained that only certified copies of convictions could “impeach his credibility.”

Decided February 7, 1990

Rehearing denied March 8, 1990

Lenzer & Lenzer, Robert W. Lenzer, Mary A. Sheppard, for appellant.

Thomas C. Lawler III, District Attorney, Scott A. Smeal, Debra K. Turner, Assistant District Attorneys, for appellee.

When defense counsel cross-examined Patman as to where he currently lived, the State’s objection was sustained. When he was recalled, the court cautioned defense counsel not to elicit evidence that he was in jail or that he was in custody on a drug charge.

Thus, the court cut off the inquiry which might have shown that the witness was “shading his testimony in an effort to please the prosecution.” Hines, supra at 260 (2). As distinguished in Hines, this was unrelated to the use of a prior conviction as a general attack on credibility and was an effort to launch “a more particular attack” by the showing of partiality. In addition to the Sixth Amendment’s contravention, OCGA § 24-9-64’s “right of a thorough and sifting cross-examination” was violated, as appellant points out.

I am authorized to state that Presiding Judge Deen and Presiding Judge Banke join in this dissent.


author: McMurray, Presiding Judge.

text:
    A89A1821.
    SOUTHERN MEDICAL CORPORATION v. WILLIS.
    (391 SE2d 803)
   McMurray, Presiding Judge.

Howard Willis, d/b/a Howard Willis Construction Company (plaintiff), brought an action against Southern Medical Corporation and its president and major stockholder W. Kenneth Abbott (defendants), seeking to recover for materials and services plaintiff allegedly provided to corporate defendant Southern Medical Corporation. Plaintiff also sought interest and attorney fees. Defendants denied plaintiff’s claim and counterclaimed, alleging that plaintiff provided substandard “roofing repairs on [its] property. . . .” After the selection of a jury, but prior to the introduction of evidence, counsel for plaintiff announced that defendant Abbott was being dropped “individually as a party to this particular suit.” The case proceeded to trial before the jury and the evidence revealed the following:

Plaintiff provided services and materials for the repair of corporate defendant’s business property from the early part of 1985 to about the middle of 1987. Plaintiff would complete jobs and submit bills, showing the cost of work at various sites, but not segregating the charges for labor from the charges for materials. Corporate defendant did not question this method of billing and it customarily satisfied its account with plaintiff without inquiry.

In December of 1986 corporate defendant fell behind in its payments to plaintiff with an outstanding account balance of $8,183.44. Nonetheless, plaintiff continued to work for corporate defendant, submitting bills for work completed. By the end of May 1987, the outstanding account balance was $31,921.38. Plaintiff submitted a bill for this amount and demanded payment. Corporate defendant’s president acknowledged this debt and promised to pay it from the proceeds of a loan. However, the account was never paid and plaintiff stopped working for corporate defendant.

The quality of plaintiff’s work and the amount of corporate defendant’s debt to plaintiff was not disputed until after plaintiff filed a suit to recover on the account. The jury rendered a verdict for plaintiff in the principal amount of $31,921.38. The jury also awarded plaintiff $3,240 as prejudgment interest and $3,000 in attorney fees. This appeal followed the denial of corporate defendant’s motion for judgment notwithstanding the verdict. Held:

1. In its first and second enumerations, corporate defendant contends the trial court erred in denying its motion for judgment notwithstanding the verdict, arguing that the evidence was insufficient to support a finding that it owed plaintiff money on an open account.

“ ‘(A) motion for judgment notwithstanding the verdict is proper only where “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” (Cits.)’ Hiers-Wright Assoc. v. Manufacturers Hanover &c. Corp., 182 Ga. App. 732 (356 SE2d 903) (1987).” Wheeler County State Bank v. Lewis, 190 Ga. App. 380, 381 (1) (378 SE2d 701). In the case sub judice, evidence that corporate defendant admitted responsibility for the $31,921.38 debt was sufficient to sustain the jury’s verdict.

2. Corporate defendant also contends in its first enumeration that “[t]he trial court further erred in allowing the plaintiff, over objection, to introduce into evidence invoices for labor and materials which were vague, inconsistent and contradictory.”

“It is the duty of the party asserting error to show it by the record. . . . York v. Miller, 168 Ga. App. 849 (310 SE2d 577) (1983).” Denny v. Nutt, 189 Ga. App. 387, 388 (2), 389 (375 SE2d 878). In the case sub judice, corporate defendant fails to point out which invoices were “vague, inconsistent and contradictory.” Consequently, there remains nothing for review.

3. Next, corporate defendant contends the trial court erred in failing to direct a verdict as to the issue of prejudgment interest, arguing that there was insufficient evidence that “an account stated existed between the parties.”

Decided March 8, 1990.

Newton, Smith, Durden & Kaufold, Howard C. Kaufold, Jr., William R. Rice, for appellants.

Joseph D. McGovern, for appellee.

“[T]his court has held that open accounts bear interest from their due date, at which time they are considered liquidated demands. [Cits.]” Intercompany Svcs. Corp. v. Kleeb, 140 Ga. App. 512, 513 (4) (231 SE2d 505). Evidence in the case sub judice indicating that corporate defendant accepted plaintiff’s bill for $31,921.38 as correct was sufficient to sustain the jury’s finding that plaintiff’s claim was liquidated and that plaintiff was entitled to interest from the due date. See Intercompany Svcs. Corp. v. Kleeb, 140 Ga. App. 512, 513 (4), supra. This enumeration is without merit.

4. Finally, corporate defendant contends the evidence was insufficient to sustain the jury’s verdict as to attorney fees.

“OCGA § 13-6-11 allows recovery of attorney fees ‘if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. It is only necessary to the plaintiff’s recovery that he show any one of these three conditions exists. (Cits.)’ Altamaha Convalescent Center v. Godwin, 137 Ga. App. 394, 395 (224 SE2d 76) (1976).” A.P.S.S. v. Clary & Assoc., 178 Ga. App. 131 (2) (342 SE2d 375). Further, “[a]n award of attorney fees under OCGA § 13-6-11 is to be affirmed if there is any evidence to support it. Ken-Mar Constr. Co. v. Bowen, 245 Ga. 676 (266 SE2d 796) (1980).” A.P.S.S. v. Clary & Assoc., 178 Ga. App. 131, 132 (3), supra. Evidence in the case sub judice showing that corporate defendant acknowledged the debt to plaintiff, never disputing the quality of plaintiff’s work or the amount of plaintiff’s bill until after suit was filed, was sufficient to authorize a finding that corporate defendant caused plaintiff unnecessary trouble and expense.

5. Plaintiff’s motion for assessment of 10 percent damages for frivolous appeal pursuant to OCGA § 5-6-6 is hereby denied.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1903.
    WENZCEL TILE COMPANY OF FLORIDA, INC. v. NEWMAN.
    (391 SE2d 652)
    Decided September 26, 1989
    Rehearing denied March 9, 1990.

      Allen W. Johnson, for appellant.
   Deen, Presiding Judge.

The appellant, Wenzcel Tile Company of Florida, Inc. (Wenzcel), commenced this action against the appellee, R. A. Newman, to recover on an account. Newman defended on the basis that the debt for the purchase of tile products from Wenzcel was owed by his corporation, R. A. Newman, Jr., Inc., and not by himself individually. The jury returned a verdict for Newman, and, following the trial court’s denial of Wenzcel’s motion for judgment notwithstanding the verdict or for new trial, Wenzcel brings this appeal. Held:

1. In moving for directed verdict and for judgment n.o.v., Wenzcel contended that there was no evidence that it had transacted business with Newman’s corporation, rather than Newman individually. However, as noted by the trial court, there was evidence that the credit application for the purchase of the tile products was submitted in the corporation’s name, and that at no time did Wenzcel inform Newman of its decision, claimed during the trial, to extend credit only to Newman individually. Also, Wenzcel sent bills to the corporate address, and a number of the bills was paid by corporate checks. This evidence would support a finding that Wenzcel contracted with the corporate entity of R. A. Newman, Jr., Inc., and not Newman the individual.

A grant of either a motion for directed verdict or judgment n.o.v. is authorized only when the evidence and all reasonable deductions therefrom demand a verdict in favor of the movant. Mercer v. Woodard, 166 Ga. App. 119 (13) (303 SE2d 475) (1983). Under this standard, the trial court properly denied Wenzcel’s motions.

2. The trial court instructed the jury about “the general rule that when an agent, in making a contract, discloses to the other contracting party that he is acting for a named principal, the principal is responsible and not the agent.” The trial court further charged the jury that “[a]n agent may expressly contract on his own credit and be bound, even though his principal be known.” Thus, contrary to Wenzcel’s contention on appeal, the trial court’s instructions on agent liability did not imply that mere disclosure of a principal will relieve an agent of any liability.

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Gail D. Stebbins, for appellee.


author: Birdsong, Judge.

text:
    A89A1975.
    MOON et al. v. THE STATE.
    (392 SE2d 19)
   Birdsong, Judge.

Ronald Moon and co-defendant Jeffrey Lowery appeal their convictions for trafficking in cocaine. They complain of the search of their vehicle and the seizure of 17,108 grams of a substance exceeding 80 percent pure cocaine; and they complain of a defect in the State’s compliance with OCGA § 17-7-211 concerning production of written scientific reports. They complain of the insufficiency of evidence of possession by them on grounds of evidence of equal access; and, finally, they complain of their sentencing to 25 years in jail on grounds the indictment failed to charge specifically on possession of 400 grams or more of cocaine. Held:

1. We do not find appellants’ constitutional rights were violated by any facet of the search and seizure. The State’s evidence showed that Georgia State Trooper Ralston stopped appellants’ vehicle for speeding on July 4, 1988, in Whitfield County, Georgia. The trooper asked for and examined appellant Lowery’s driver’s license, and the vehicle’s registration papers showing Moon had obtained the vehicle as a “loaner” from a Plymouth dealership in their home state of Michigan. The trooper asked several questions of appellants concerning their trip and his suspicions were aroused when he received different answers. Lowery said the two had gone to school together; Moon said they worked together. Lowery said they left Michigan the Wednesday before July 4; Moon stated they had left Michigan on Tuesday. The trooper explained to Moon and Lowery the problem with drugs being transported north from Florida and asked permission to search. Both Moon and Lowery signed a consent to search form permitting “a complete search of my vehicle and the contents within it.” Appellant Moon opened the trunk. The trooper discerned the spare tire was loose and, lifting back the trunk carpet, found seventeen bundles of cocaine.

Appellants dispute nearly all the State’s evidence of events. They asserted below that the trooper tricked them into signing the consent to search form by acting as if it were a “warning” citation; and that they had revoked any verbal consent before the trooper looked in the trunk, and had insisted he not open the trunk. It was the duty of the trial court to resolve all of these discrepancies in evidence and determine the credibility of the witnesses. On appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgments made; the trial court’s findings of fact must be accepted unless they are clearly erroneous. Watson v. State, 190 Ga. App. 696 (379 SE2d 817).

Upon the evidence, it is clear that the traffic stop of appellants’ vehicle was authorized by violation of the law, and the request for examination of the registration papers of the car was not improper or illegal. See Evans v. State, 190 Ga. App. 856, 857 (380 SE2d 332); State v. Golden, 171 Ga. App. 27, 29 (318 SE2d 693). Further, the trooper was authorized to detain briefly and question Moon and Lowery, following the stop for traffic violation. This “secondary detention” was a valid “Terry” stop based upon articulable suspicion; even if the trooper’s suspicion fell short of probable cause to suspect cocaine trafficking, the further detention was proper “ ‘to maintain the status quo momentarily, while obtaining more information’. . . . [Cit.] ” (Emphasis deleted.) Radowick v. State, 145 Ga. App. 231, 233 (244 SE2d 346). The validity of the investigative conduct upon making a “Terry stop” is determined in each case by balancing the extent of the intrusion against the immediacy and importance of the interest in crime prevention or law enforcement which is sought to be advanced. State v. Golden, supra at pp. 30-31. The “minimal” questions asked of Moon and Lowery concerning their trip were not extensive or prolonged, and were not unconstitutionally intrusive when balanced against the widespread clear danger of drug peddling from Florida via the roads of this state. See Radowick v. State, supra at p. 236. The disparate answers given to this minimal questioning raised an articulable suspicion that justified the further request to obtain more information by search. Id.

Moreover, it is self evident that a valid consent eliminates the necessity for probable cause or a warrant. Hunter v. State, 190 Ga. App. 52, 53 (378 SE2d 338). The valid stop for traffic violation permitted the trooper to request to search; “the validity of the subsequent consensual search is not dependent upon the existence of probable cause or suspicion to support the officer’s request to conduct the search. ...” Id. p. 54. We are not authorized to disturb the trial court’s finding of fact on the issue of consent.

2. The evidence was sufficient to enable a rational juror to find both appellants guilty of trafficking in cocaine beyond a reasonable doubt. (Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560)), notwithstanding the appellants’ evidence that a valet at a seafood restaurant in Florida had had “equal access” to the vehicle for about two hours. We do not find this evidence raises a reasonable doubt by rebutting the presumption of possession. See Castillo v. State, 166 Ga. App. 817, 821-822 (305 SE2d 629). The conviction here was not based solely upon the “presumption of possession” (c.f. Farmer v. State, 152 Ga. App. 792, 796 (264 SE2d 235)), but upon all of the evidence relating to appellants’ trip and their use of the car. What is a reasonable deduction from the evidence is a jury question. Townsend u. State, 127 Ga. App. 797, 799 (195 SE2d 474); see Harris v. State, 236 Ga. 242 (223 SE2d 643). The jury was authorized to determine it was not reasonable to deduce that an unidentified stranger in possession of the car for two hours at a restaurant would secrete 17.108 grams of 80 percent pure cocaine in the wheel well of the car trunk.

3. Appellants argue that the State’s only compliance with their request to produce scientific reports pursuant to OCGA § 17-7-211 was defective, in that the document produced was only a summary of a lab report and not the official report itself. We find no harmful error. The “summary” advised appellants only that no identifiable fingerprints were found of either defendant on the packages of drugs confiscated, whereas the official report produced the day of trial contained the additional information that some latent prints were found upon the packages. Appellants contend they were thus deprived of the opportunity to determine whose prints were found, as the State’s expert conceded might have been done by computer analysis. Even if appellants could ultimately have identified the latent fingerprints, absent unusual circumstances such evidence would not have raised a reasonable doubt as to their own guilt, under all the other evidence in the case. Obviously appellants received the cocaine from someone else during their trip to Fort Lauderdale; thus the mere presence of other fingerprints does not exonerate them. According to both appellants, their trip to Fort Lauderdale was a spur-of-the-moment fishing trip. The rental of the loaner car was even more spontaneous for they set out in Moon’s own vehicle but returned to Michigan because of a faulty fuel pump, and obtained this “loaner.” When they arrived at their destination and discovered there were no fishing boats available, they simply ate dinner at a restaurant where a valet took their car for two hours; they set out to drive back to Michigan. The jury was authorized to conclude there was no reasonable inference that somehow during this trip someone else coincidentally or accidentally secreted 17.108 grams of cocaine in the wheel well.

If appellants, based on actually identifying the latent fingerprints, could make a showing of such very unusual circumstances which might raise a reasonable doubt in the otherwise overwhelmingly inculpatory evidence, appellants should have raised such evidence upon motion for new trial.

The burden is upon the defendants not merely to show error, but to show harmful error (Dill v. State, 222 Ga. 793 (1) (152 SE2d 741)); error will authorize a reversal only if we can conclude it is highly probable such error affected the verdict. Hamilton v. State, 239 Ga. 72, 76 (235 SE2d 515); Johnson v. State, 238 Ga. 59 (230 SE2d 869). The lab evidence that there were identifiable prints obviously did not influence the verdict, for this evidence was merely cumulative of their assertion that someone else placed the cocaine in the trunk; and it was only supportive of the reasonable conclusion that they knowingly obtained the cocaine from someone in Florida. See Clifton v. State, 190 Ga. App. 828, 829 (380 SE2d 507). Appellants had full right of cross-examination at trial, and could have raised any specific evidence post-trial. We conclude that appellants have not shown that any defect in compliance with OCGA § 17-7-211 caused harmful error.

4. The trial court did not err in sentencing appellants to 25-year jail terms. It is the conviction of the specific trafficking offense which authorizes the particular sentence, and not the language of the indictment, which correctly charged appellants with possession of more than “28 grams [of cocaine] with a purity in excess of 10%.” See OCGA § 16-13-31 (a) (1) (C). The sentence was within the maximum sentence for the offense (see § 16-13-31 (f)) and is therefore not invalid or illegal.

In Mallarino v. State, 190 Ga. App. 398 (379 SE2d 210), we vacated a similar sentence on grounds that the trial court was evidently under mistake of fact as to what is the mandatory minimum sentence for possession of an amount of cocaine greater than 28 grams; we concluded the trial court thought the mandatory minimum for that offense was 25 years, which is in fact the mandatory minimum for possession in excess of 400 grams. OCGA § 16-13-31 (a) (1) (C). Clearly, since it could not be determined from the verdict how much appellants were convicted of possessing, the trial court’s seeming determination that a sentence of 25 years was mandated, was erroneous. In this case, however, the trial court’s 25-year sentence was not mired in the mistaken belief that this was the mandatory minimum for possession of 28 grams or more. Appellants were given the benefit of an indictment which correctly charged them with possession of 28 grams; they were convicted of possession of more than 28 grams, the specific proof being that they possessed more than 600 times that amount. There is no basis in evidence to conclude the jury convicted them of possessing less than the amount found, to wit, 17,108 grams; and certainly the jury found they possessed more than 28 grams.

Since OCGA § 16-13-31 provides at paragraph (a) (1) (A) that the mandatory minimum for possession of more than 28 grams of cocaine is a ten-year sentence and paragraph (f) of the Code section provides that the maximum sentence is 30 years for “any provision of this Code section in regard to trafficking in cocaine,” the 25-year sentence in this case was well within the mandatory minimum of ten years, and the maximum of 30 years. Since the indictment for possession of more than 28 grams was correct, and the conviction was authorized by proof of possession of 17,108 grams, the trial court was authorized by § 16-13-31 (f) to sentence up to 30 years. We see no legal basis, and certainly no logic, in vacating that valid sentence merely because it happens to be the same amount as the mandatory minimum for possession of more than 400 grams, and we are not authorized to imagine the trial court misunderstood the clear provisions of § 16-13-31 (a) (1) (C) and (f), or thought it was giving sentence for conviction of possession of 400 grams or more.

Decided February 23, 1990

Rehearing dismissed March 9, 1990

Mitchell, Coppedge, Wester & Bisson, E. Neil Wester III, for appellants.

Jack O. Partain III, District Attorney, Todd L. Ray, Assistant District Attorney, for appellee.

The sentence was well within the mandatory minimum set at § 16-13-31 (a) (1) (C), and the 30-year maximum set at subparagraph (f) of the code section. It is therefore legal, and not subject to further review by this court. See Vinson v. State, 190 Ga. App. 676 (2) (379 SE2d 792).

Judgment affirmed.

Deen, P. J., and Cooper, J., concur.


text:
    A89A2038.
    ALVARADO v. THE STATE.
    (391 SE2d 668)
   Birdsong, Judge.

Appellant, German Alvarado, appeals his judgment of conviction of trafficking in cocaine and his sentence.

Appellant raises three enumerations of error. For reasons hereinafter discussed, we agree with appellant that the trial court erred in refusing to charge on the lesser included offense of possession of cocaine. Held:

The alleged trafficking offense occurred in 1987 when OCGA § 16-13-31 required proof of “actual possession.” See Lockwood v. State, 257 Ga. 796 (364 SE2d 574). However, the offense of possession of cocaine under OCGA § 16-13-30 could be committed by having either actual or constructive possession of cocaine. Christopher v. State, 190 Ga. App. 393, 398 (6) (379 SE2d 205).

Appellant was alone in the car when it was stopped for a traffic offense; he voluntarily exited the car to get warm in the police patrol car and the trooper saw that a plastic door panel cover was affixed with rivets rather than factory-installed screws. The trooper became immediately suspicious that appellant’s car contained a secret compartment. Subsequently, cocaine was found in the secret compartment; however, it was not readily accessible and was recovered only after a car seat and side paneling were removed. Appellant denied any knowledge of the drugs. He further testified that en route he met a man who offered to buy the car and who made a partial down payment thereon. The man was given temporary possession of the car in Florida for three or four days. Appellant subsequently regained possession of the car to drive back to Chicago where transfer of car ownership to the buyer was to be made. The theory of the defense, in essence, was that the buyer or some other unknown person must have placed the drugs in the car.

Decided February 20, 1990

Rehearing denied March 9, 1990

Bates, Kelehear & Starr, Harlan M. Starr, for appellant.

Jack O. Partain III, District Attorney, Michael R. McCarthy, Assistant District Attorney, for appellee.

It is not error for the trial court to refuse to give a lesser included offense charge when the evidence does not reasonably raise the issue. Herndon v. State, 187 Ga. App. 77 (5) (369 SE2d 264). The State asserts that the lesser included offense was not reasonably raised by the evidence, relying primarily on Santone v. State, 187 Ga. App. 789 (371 SE2d 428) and Hernandez v. State, 182 Ga. App. 797 (357 SE2d 131). The State’s reliance on these cases is misplaced, as in both San-tone and Hernandez the posture of the evidence established that there was no reasonable issue regarding the type of possession, actual or constructive, exercised by the defendant. In Santone, and Hernandez, any possession was actual and defendants were either guilty of the greater offense of trafficking or not guilty.

“The difference between actual and constructive possession, as those terms are defined under Georgia criminal law, is most assuredly one of degree. As stated in Neal v. State, 130 Ga. App. 708, 711 (2) (204 SE2d 451) . . . actual and constructive possession ‘ “often so shade into one another that it is difficult to say where one ends and the other begins.” ’ ” Dalton v. State, 249 Ga. 720 (2) (292 SE2d 834); compare Waters v. State, 177 Ga. App. 374 (3) (339 SE2d 608); see also Lockwood, supra at 798, citing Dalton, supra; Neal u. State, supra. We find a jury issue exists as to whether appellant was exercising actual or constructive possession. Accordingly, the lesser offense of possession of cocaine was reasonably raised by the evidence, and the trial court committed prejudicial error in failing to instruct pursuant to appellant’s written request. Compare Lovett v. State, 165 Ga. App. 379 (1) (301 SE2d 303).

Appellant’s other enumerations of error are without merit.

Judgment reversed.

Deen, P. J., and Cooper, J., concur.


text:
    A89A2066.
    McGEE v. SOUTHERN GENERAL INSURANCE COMPANY.
    (391 SE2d 669)
   Birdsong, Judge.

Appellant Milton McGee, Jr., appeals the order of the trial court granting summary judgment to and directing final verdict in favor of appellee Southern General Insurance Company.

Appellant was injured when he was thrown from the back of an uninsured pickup truck driven by Leo Manuel. Manuel had borrowed the truck from a friend to move furniture. Appellant brought suit for no-fault benefits against Manuel’s insurer who had issued a policy of insurance listing Manuel’s 1975 Buick Regal as the insured motor vehicle. Appellant was not related to or otherwise a member of Manuel’s household. Held:

Appellant asserts that the trial court erred in granting summary judgment to and awarding final judgment in favor of appellee. We agree.

The basic coverage provided in Manuel’s policy included that of bodily injury liability, property damage liability and basic personal injury protection, as set forth in a declaration attached to the policy. Examination of the policy provision pertaining to “Definition of Insured” reflects that appellant would not come within its express provisions. However, the policy contains an additional clause captioned “Use of Other Automobiles.” Examination of this clause in conjunction with an examination of the policy in toto reveals that the scope of the bodily injury liability and property injury liability coverage, provided by the policy, was extended to apply “with respect to any other automobile” used by the insured, Manuel. The bodily injury liability clause of the policy pertinently provided coverage “[t]o pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages . . . sustained by any person, caused by accident and arising out of . . . use of the automobile.” (Emphasis supplied.) Thus, by the clear terms of these provisions, an “other automobile” used by the insured, Manuel, was given the legal status of an insured automobile for purposes of bodily injury liability coverage, and thus provided bodily injury liability coverage for the insured in the circumstances of this case. This provision, however, does not per se affect the scope of personal injury protection (PIP) coverage provided by the policy.

The declaration page of the policy of insurance constitutes a part thereof and the provisions therein must be construed with the remainder of the insurance contract. See Hulstzman v. State Farm Fire &c. Co., 188 Ga. App. 12 (1) (372 SE2d 9); Rogers v. Southeastern Fidelity Ins. Co., 181 Ga. App. 864 (354 SE2d 199). The declaration page of the policy in this case contains the following pertinent entries: (a) “Basic Personal Injury Protection [PIP] Endorsement Statutory Limits” (listed in a column marked “COVERAGES”), (b) “$5000 Coverage — NOT AVAILABLE ON MOTORCYCLES” (listed in a column marked “LIMITS OF LIABILITY”), and (c) “INCLUDED WHERE COVERAGE A PROVIDED” (a typewritten entry in capital letters commencing in the column marked “LIMITS OF LIABILITY” in which the $5,000 coverage entry is located and continuing into certain sub-columns of the column marked “PREMIUMS”). It is clear from this entry that PIP coverage was intended to be provided whenever “Coverage A,” that is bodily injury liability coverage, is provided under the policy. The provision, however, is susceptible to differing reasonable interpretations regarding the scope of the PIP coverage provided. One interpretation is that $5,000 PIP coverage is intended to be provided in all cases where Coverage A is provided to the insured. As the insured was provided Coverage A under the “Use of Other Automobiles” provision of the insurance contract, under the above interpretation in order to effectuate the policy provision, the pickup truck would also be accorded the status of an insured automobile for PIP coverage purposes in accordance with the “INCLUDED WHERE COVERAGE A PROVIDED” clause on the declaration page of the policy. However, this provision also could be interpreted as being intended only to provide that PIP coverage as authorized by the Basic Personal Injury Protection Endorsement, where Coverage A was provided. In such circumstances, the pickup truck would fail to meet the definition of “insured motor vehicle” contained in the basic PIP endorsemnt, and appellant would not have a viable PIP claim.

As the above provisions are capable of being reasonably construed in more than one way or are otherwise uncertain of meaning or expression, we find the existence of ambiguity. Travelers Ins. Co. v. Blakey, 255 Ga. 699 (342 SE2d 308); Tarbutton v. Duggan, 45 Ga. App. 31 (5) (163 SE 298). The construction of a contract is a question of law for the court, and “even ambiguous contracts are to be construed by the court unless an ambiguity remains after application of applicable rules of construction.” Travelers Ins. Co., supra at 700.

“Under Georgia rules of contract interpretation, words in a contract generally bear their usual and common meaning. [Cit.] However, ‘if the construction is doubtful, that which goes most strongly against the party executing the instrument or undertaking the obligation is generally to be preferred.’ [Cit.] Georgia courts have long acknowledged that insurance policies are prepared and proposed by insurers. Thus, if an insurance contract is capable of being construed two ways, it will be construed against the insurance company and in favor of the insured.” Claussen v. Aetna Cas. &c. Co., 259 Ga. 333 (1) (380 SE2d 686); see generally OCGA § 13-2-2 (5). Moreover, an insurer can provide more no-fault coverage than required by law. See, e.g., OCGA § 33-34-3 (b). Applying these principles, we construe this policy as providing PIP coverage in all cases where Coverage A is provided without regard to the otherwise limiting language of the Basic Personal Injury Protection Endorsement regarding the definition of “insured motor vehicle.”

Decided February 20, 1990

Rehearing denied March 9, 1990

L. B. Kent, for appellant.

Freeman & Hawkins, Michael J. Goldman, for appellee.

Judgment reversed.

Deen, P. J., and Cooper, J., concur.


text:
    A89A2334.
    VICK v. MERCER.
    (391 SE2d 680)
   Birdsong, Judge.

We granted this interlocutory appeal to determine whether the trial court erred in denying summary judgment to the plaintiff Vick in his suit on a $50,000 promissory note.

The trial court found that issues of fact exist as to the understanding of the parties, it being defendant Mercer’s contention that he and a non-defendant Pegues signed the note in representative capacities only, as president and secretary/treasurer of Quicklease Corp. The trial court apparently relied upon Kramer v. Johnson, 121 Ga. App. 848 (176 SE2d 108), in denying the plaintiff’s motion for summary judgment. In this the trial court erred.

The promissory note was signed as follows: “Signature: Capstone /Quicklease (L.S.); Signature: Ken Pegues (L.S.); Signature: Merlin F. Mercer (L.S.).” On the face of the note, both Pegues and Mercer obligated themselves, under seal, as principal debtors along with Capstone/Quicklease.

The Kramer case headnote states that judgment on the pleadings in a suit “to hold an agent personally liable on a note” is improper “where the answer raises the factual issue of the understanding of the parties as to signature in a representative capacity and the form of the signature indicates a representative capacity although the principal is not named. [OCGA § 11-3-403.]” (Emphasis supplied.) Kramer is inapposite to this case, for “the form of the signature [s]” on this note do not “indicate a representative capacity.” And there can be no misconstruction as to what Kramer meant by that statement, for the form of signatures on the note in Kramer showed that its makers signed as “Governor” and “Secy.” The question there was whether the signers could be held principally liable because of the omission on the note of the name of the corporation on behalf of which the representatives signed. This is not the question here, for clearly the corporation was a signatory and so were Mercer and Pegues, on equal footing.

Further, the terms of the note provide, as to “Severability & Multiple Parties: (a) If more than one party shall sign this Agreement . . . all . . . parties shall be jointly and [severally liable]. . . .”

This case is controlled by OCGA § 11-3-403 (2) and by Adcock v. First Nat. Bank of Atlanta, 144 Ga. App. 394 (241 SE2d 289), where the defendants similarly made a defense of misunderstanding of the capacity in which they executed the note. Such an assertion in an answer gains the defendant nothing where the note shows on its face that the defendants did not sign in a representative capacity but are equally and severally liable. Id. at 395 (2) (a). Southern Oxygen &c. Co. v. DeGolian, 230 Ga. 405, 406-407 (197 SE2d 374). Plaintiff/appellant Vick made out his prima facie case for recovery (id. at 395); the burden for establishing a defense then rested upon defendant Mercer.

Appellee/defendant Mercer raises no viable defense. The issues were beclouded by appellant’s production of a letter which strongly indicates Mercer and Pegues might have induced Vick to make the loan by promising to sign as guarantors, and by the fact that they then did not sign as guarantors; Mercer says this letter merged into the loan and cannot be used to show he is liable. However, this argument is a red herring. Mercer’s (and Pegues’) execution of the note as principal obligors without distinction, renders it unnecessary and superfluous to charge them as “guarantors.” Any prior document by which they induced the loan by promising to guarantee did indeed “merge” into the loan, as Mercer contends, but only because in the loan itself he clearly obligated himself as a principal debtor. Examination of the entire record and all the evidence leads inexorably to the conclusion that whether Mercer and Pegues ever induced the loan by promising to serve as guarantors, in the final document they pledged themselves unequivocally as principal debtors, jointly and severally liable under the terms of the instrument itself.

The trial court erred in finding there was any issue of fact as to whether Mercer and Pegues executed the note in a representative capacity, for the face of the document shows they did not. Cf. Kramer, supra, distinguished in Oxygen Supply, supra. Appellant Vick was entitled to summary judgment.

Judgment reversed.

Deen, P. J., and Cooper, J., concur.

Decided February 23, 1990

Rehearing denied March 9, 1990

James E. Sherrill, for appellant.

Diane E. Bessen, for appellee.


author: Carley, Chief Judge.

text:
    A89A0299.
    LITTLETON et al. v. OB-GYN ASSOCIATES OF ALBANY, P.C.
    (391 SE2d 806)
   Carley, Chief Judge.

After the death of their new-born daughter, appellant-plaintiffs brought a four-count complaint against appellee-defendants. Included among those counts was a separate claim by appellant Mrs. Littleton for her mental and emotional distress. Appellees answered and, after discovery, moved for partial summary judgment as to appellant Mrs. Littleton’s claim for mental and emotional distress. The trial court granted partial summary judgment in favor of appellees and that order was appealed to this court.

In Littleton v. OB-GYN Assoc. of Albany, 192 Ga. App. 634 (385 SE2d 743) (1989), we reversed, holding that appellant Mrs. Littleton had a right under existing law to pursue her own separate claim for mental and emotional distress, which right was totally unaffected by the fact that such damages are not recoverable in the context of a wrongful death action. “There is no authority for the proposition that the wrongful death statute supplanted, rather than supplemented, the existing law in this connection.” Littleton v. OB-GYN Assoc, of Albany, 192 Ga. App. at 634. Because “the evidence in this case would clearly support a finding that the ‘impact rule’ [had] been satisfied [under] Christy Bros. Circus v. Turnage, 38 Ga. App. 581 (144 SE 680) (1928) [, we held that] [t]he trial court erred in granting summary judgment as to appellant Mrs. Littleton’s separate claim for injuries sustained by her, including her mental suffering and emotional distress.” Littleton v. OB-GYN Assoc. of Albany, 192 Ga. App. at 635.

The Supreme Court granted appellees’ application for a writ of certiorari and reversed and remanded. OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663 (386 SE2d 146) (1989). The remittitur filed in this court directs that we take “such further action ... as may be necessary to give effect to the opinion filed in this case.” Accordingly, we hereby proceed to follow that direction and take that “further action.”

The ultimate conclusion reached by the Supreme Court in Division 1 of its opinion is that there can be no recovery for mental suffering and emotional distress in a wrongful death action. However, nothing in our opinion had held or implied otherwise. Our holding was merely that the nonrecoverability of such damages in the context of a wrongful death action did not otherwise bar appellant Mrs. Littleton from pursuit of her own entirely separate claim for those damages. So, in this regard, the Supreme Court’s reversal has no relevant bearing whatsoever on our original holding that there is no merit in appellees’ contention that the wrongful death statute is a bar to appellant Mrs. Littleton’s separate claim for mental suffering and emotional distress and we adhere to that holding. Insofar as the trial court granted partial summary judgment in favor of appellees on this ground, it erred.

What the Supreme Court did that does bear upon our original holding is that, in Division 2 of its opinion, it undertook to “clarify” the impact rule by overruling the decision in Christy Bros. Circus v. Turnage, supra, upon which we had relied as authority supporting appellant Mrs. Littleton’s right to seek recovery for her mental suffering and emotional distress. As now “clarified” by the Supreme Court, “the impact which will support a claim for damages for emotional distress must result in a physical injury.” OB-GYN Assoc. of Albany v. Littleton, 259 Ga. at 666 (2A). Having thus “clarified” the impact rule, the Supreme Court then held: “The order granting the motion for partial summary judgment in regard to Mrs. Littleton’s claim for damages for emotional distress . . . contains no findings of fact. We are therefore uncertain as to whether the trial judge considered the presence or absence of material facts which would show an injury to Mrs. Littleton, as distinguished from injury to the infant. The presence of such injury could support a claim for emotional distress under Georgia law. We therefore remand this case for a hearing in the trial court to determine whether Mrs. Littleton suffered a physical injury as a result of negligence of defendants.” OB-GYN Assoc. of Albany v. Littleton, 259 Ga. at 668 (2C).

Despite the Supreme Court’s reference to the absence of “findings of fact” and to the trial court’s conduction of a hearing to “determine” whether appellant Mrs. Littleton suffered a physical injury, we are nevertheless compelled to note that this appeal involves summary judgment, not a bench trial. Thus, the holding of the Supreme Court is presumably that the grant of partial summary judgment in favor of appellees should be reversed as we originally held, but that the trial court should now construe the evidence of record most favorably for appellant Mrs. Littleton so as to determine whether appellees met their burden of showing that, under the newly “clarified” impact rule, no genuine issue of material fact remains as to the absence of an actionable physical injury to her as opposed to a mere touching of her person. Accordingly, our original judgment of reversal is hereby vacated and the Supreme Court’s judgment reversing and remanding this case for the trial court to make a new ruling on appellees’ motion for summary judgment is now made the judgment of this court.

Decided March 9, 1990.

William S. Stone, for appellants.

Watson, Spence, Lowe & Chambless, G. Stuart Watson, Dawn G. Benson, Perry, Walters & Lippett, C. Richard Langley, for appellees.

Judgment reversed and case remanded with direction.

McMurray, P. J., and Beasley, J., concur. -


text:
    A89A2058.
    DEPARTMENT OF TRANSPORTATION v. BENNETT et al.
    (391 SE2d 724)
   Carley, Chief Judge.

Pursuant to OCGA § 32-3-1 et seq., appellant-condemnor Department of Transportation (DOT) initiated condemnation proceedings against property belonging to appellee-condemnees. The issue of just and adequate compensation was tried before a jury. A verdict was returned in excess of the amount of estimated just and adequate compensation that DOT had paid into court and the trial court entered judgment in favor of condemness for that excess. DOT’s motion for new trial was denied and it appeals from the denial of that motion.

1. Condemnees’ expert appraiser testified that he had been employed by Oglethorpe Power Corporation to appraise condemnees’ property in connection with a prior condemnation proceeding. On appeal, DOT enumerates as error the trial court’s admission into evidence of this witness’ testimony that he “had previously been employed by another condemning authority to value the subject property.”

The record shows that, at trial, DOT made several objections to the substance of the witness’ testimony. However, an objection to the witness testifying to the fact of his prior employment by another condemning authority was never made. Accordingly, we cannot address DOT’s contention on appeal that the rationale of Logan v. Chatham County, 113 Ga. App. 491 (1) (148 SE2d 471) (1966) should be extended so as to preclude a condemnee’s expert witness from testifying that he was previously employed by another condemning authority in connection with prior condemnation proceedings against the condemnee’s property. No such objection was ever raised in the trial court. “ ‘An objection to the admission or exclusion of evidence must be specifically raised at trial in order to be heard on appeal. (Cits.)’ [Cit.] [DOT] does not enumerate as error the trial court’s ruling as. to the . . . objection [s] that [were] raised. Accordingly, we likewise [can] not decide the admissibility of the [witness’] testimony [as against those objections].” (Emphasis in original.) Herron v. MARTA, 177 Ga. App. 201, 202 (1) (338 SE2d 777) (1985).

Decided March 9, 1990.

Weiner, Dwyer, Yancey & Mackin, J. Matthew Dwyer, Jr., Anne W. Sapp, Michael J. Bowers, Attorney General, for appellant.

Smith, Eubanks, Smith & Darien, Donald D. Smith, for appellees.

2. The trial court’s refusal to give one of DOT’s requests to charge is enumerated as error. The record shows, however, that the principles contained in that refused request were otherwise covered in the instructions that were given by the trial court. It is not “error to refuse to give a requested charge where the substance of the request is covered in the general instructions given. [Cits.]” Gates v. Southern R. Co., 118 Ga. App. 201, 203 (3a) (162 SE2d 893) (1968). DOT further urges that the trial court erred in charging on the substance of the refused request because there was no evidence to authorize the giving of such a charge. However, DOT cannot complain of the giving of a charge when it had itself requested that a similar instruction be given to the jury. Sarman v. Seaboard Air-Line R. Co., 33 Ga. App. 315 (4a) (125 SE 891) (1924). Moreover, DOT did not object to the lack of evidentiary support for the charge that was given by the trial court and cannot raise that contention for the first time on appeal.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Cooper, Judge.

text:
    A89A2302.
    HOLDER v. THE STATE.
    (391 SE2d 808)
   Cooper, Judge.

Appellant was convicted of trafficking in cocaine and possession with intent to distribute marijuana. He appeals from the denial of his amended motion for new trial.

Two informants, acting pursuant to the negotiated pleas of guilty which they had entered to charges of possession of cocaine with intent to distribute, telephoned appellant and told him they knew of someone interested in buying three to five ounces of cocaine. Appellant told them he could “most likely” get it and would phone them back if it was available. The undercover agent, equipped with a transmitter, went with the informants to appellant’s house with back-up units on surveillance. One of the informants introduced the agent to appellant as the person who wanted to make the buy and appellant asked whether the agent had the money, which the agent produced.

After making a telephone call, appellant told the undercover agent that a yellow cab would arrive shortly with the drugs. When the described cab arrived, appellant asked for $4,000 to take to the cab, but the agent gave him only $1,000 to buy one ounce. While the agent watched, appellant approached the cab, passed the money to the driver, and received a small plastic bag containing white powder. Appellant returned to the house, gave the agent the bag and informed him that it contained one ounce. The agent then gave a prearranged signal to the surveillance team and appellant and the occupants of the cab were arrested. 56.4 grams of a mixture that was 77 percent cocaine, the $1,000, and 7.73 ounces of marijuana were confiscated from the cab.

At trial appellant’s defenses were entrapment, coercion and government overreaching. He attempted to show that the informants (Battles and Molina) were allowed to continue to sell and use cocaine while they were out on bond before they were to begin serving their sentences, and some evidence of this was introduced. Appellant underwent a psychiatric examination before trial that showed that he had suffered organic brain damage as a result of an automobile accident in 1972 which required a metal plate to be placed in his head. His prognosis for improvement was poor and his report said that he “would most likely require psychotropic medication for an indefinite period to improve the efficacy of his thought processes and reduce the likelihood of erratic, impulsive behavior.”

Appellant testified at trial that he had known one of the informants, Battles, for 8-10 years and feared him because he was known as a big drug dealer. Appellant admitted he was a drug addict and stated that Battles’ informant was his supplier. He further testified that Battles threatened to have him beaten when he complained about drug activity around his home. Appellant testified he agreed to set up the deal for which he was arrested because he was afraid of Battles and because Battles had already given appellant $5,000 worth of free cocaine for which he expected favors in return.

1. Appellant questions the sufficiency of the evidence, asserting that he never possessed the marijuana found in the cab and that he possessed only the 28.2 grams of cocaine he actually handled, not 84.6 grams as alleged in the indictment. Under OCGA § 16-13-31, as it existed at the time of appellant’s arrest, one was guilty of trafficking in cocaine if one “knowingly deliver [ed] ... or [was] knowingly in actual possession of 28 grams of cocaine or any mixture with a purity of 10% or more of cocaine. . . ." The indictment charged appellant with knowingly having possession of 84.6 grams of a mixture with a purity of 10 percent or more of cocaine.

A chemist from the State Crime Lab testified that the bag of white powder that appellant handed to the undercover agent contained 28.2 grams of a mixture that was 77 percent cocaine. In addition, appellant was a party to the crime of possession of the contraband in the cab. OCGA § 16-2-20. “Whether he had physical possession of the cocaine [and marijuana in the cab], appellant aided and abetted its actual physical possession and is guilty of the offense of trafficking under OCGA § 16-13-31 and under § 16-2-20, as a party to the crime. . . . The ‘actual possession’ required by OCGA § 16-13-31 to authorize a conviction for trafficking refers not merely to physical custody but refers to actual active participation in the possession of such substances so as to be a party to the crime of trafficking.” Barrett v. State, 183 Ga. App. 729, 735-36 (360 SE2d 400) (1987).

Appellant also contends that his defenses of entrapment and governmental overreaching were not overcome by the State. He distinguished the two defenses on the basis that the latter defense focuses on acts of governmental agents rather than on the defendant’s predisposition to commit the crime. However, it has been expressly recognized by this court that “the entrapment defense focuses on the intent and predisposition of the defendant to commit the crime as well as upon the conduct of the government’s agents. [Cit.] ‘If the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under the applicable provisions of state or federal law.’ [Cits.]”

“ ‘In order to raise the defense of entrapment a defendant must admit the commission of the crime; but that he did so because of the unlawful solicitation or inducement of a law enforcement agent.’ [Cits.]” Griffin v. State, 154 Ga. App. 261 (3) (267 SE2d 867) (1980). In the case at bar there is no evidence that the undercover agent furnished appellant with the contraband or that the government implanted the entire criminal design in appellant’s mind. Id. at 263. Rather, the law enforcement officers merely provided an opportunity to appellant, who was predisposed to commit the crimes. Since the State met its burden of rebutting appellant’s defenses, his assertion concerning the sufficiency of the evidence is without merit. Since appellant’s requested charge on “outrageous governmental conduct” was not supported by the evidence, the trial court did not err in refusing to give such an instruction. See United States v. Russell, 411 U. S. 423 (93 SC 1637, 36 LE2d 366) (1973).

2. Appellant contends that the trial court improperly denied his motion for mistrial when the informant, in a nonresponsive answer during direct examination by the State, testified that “everyone was buying” from appellant. The trial court instructed the jury to disregard the last response and consider only the evidence that pertained to the offenses for which appellant was on trial. “ ‘A trial court has broad discretion in ruling on a motion for a mistrial, and this court will not disturb the court’s ruling absent a manifest abuse of discretion which requires a mistrial to preserve the defendant’s right to a fair trial. [Cits.]’ It cannot be said the trial court abused its discretion in this case.” Lanzo v. State, 187 Ga. App. 616 (2) (b) (371 SE2d 119) (1988).

3. In two related enumerations of error, the appellant asserts that the trial court violated his Sixth Amendment right to defend himself and develop substantive evidence at trial by refusing to allow the defense to properly present evidence pertaining to his mental faculties, which was relevant in regard to the issue of intent and his defenses of entrapment and coercion; and that the court further erred in charging the jury, over objection, on guilty but mentally ill, as this was burden shifting, relieving the State from proving intent beyond a reasonable doubt.

The trial transcript reflects, however, that defense counsel was allowed to present testimony that appellant was generally considered to be “crazy” or “not all there” in support of a diminished responsibility or impaired judgment defense. When his attorney sought to have appellant’s parents testify that they had attempted to have him committed to an institution, the court ruled that it would not allow evidence of mental illness unless the jury was instructed on the option of a guilty but mentally ill verdict. Contrary to appellant’s contentions, the Supreme Court has determined that the guilty but mentally ill statute (OCGA § 17-7-131) “places no burden on a defendant to prove that he is not mentally ill, or that he is guilty but mentally ill. The burden is on the [SJtate to prove that the defendant is guilty of the crime charged, including the requisite element of intent, beyond a reasonable doubt. The burden is on the defendant to prove he is not guilty by reason of insanity by a preponderance of the evidence. This latter requirement is constitutional. [Cits.]” Keener v. State, 254 Ga. 699 (2) (334 SE2d 175) (1985).

The trial court correctly instructed the jury that the burden was on the State to prove every material allegation of the indictment beyond a reasonable doubt, and that intent was an essential element of any crime that must be proved by the State beyond a reasonable doubt. Defense counsel conceded at trial that he could not prove that appellant was legally insane, but that he wanted to show that his mental disability was “somewheres in between” insanity and normal mental capacity. Thus, here as in Dimauro v. State, 185 Ga. App. 524 (3) (364 SE2d 900) (1988), charging the jury that they could arrive at a verdict of a guilty but mentally ill “merely allowed for an accommodation to the mental health needs of the appellant who was [alleged to be] laboring under a mental illness which fell short of the legal defenses of insanity and delusional compulsion promulgated in OCGA §§ 16-3-2 and 16-3-3. [Cits.]” Consequently, the trial court did not err in instructing the jury that it had the option to reach this verdict.

4. Appellant complains that the trial court erred in failing to charge upon request the defense of coercion based upon his testimony that he had been beaten recently by the informant’s thugs, that he knew the informant was a major drug dealer and that he was afraid to refuse his orders. Coercion as defined by OCGA § 16-3-26 is a defense to. criminal conduct only if the defendant “reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury.” “ ‘In order for duress or fear produced by threats or menaces, to be a valid legal excuse for doing anything which would otherwise be criminal, the act must have been done under such threats or menaces as show that life or member was in danger, or that there was reasonable cause to believe that there was such danger. The danger must not be one of future violence but of present and immediate violence at the time of the commission of the forbidden act. [Cits.]’ ” Head v. State, 191 Ga. App. 262 (1) (381 SE2d 519) (1989). Since none of appellant’s evidence related to present and immediate violence towards him at the time he procured the cocaine for the informants so as to justify his criminal conduct, and there was no showing of a reasonable fear of immediate violence, the trial court did not err in refusing to give the requested charge. Slater v. State, 185 Ga. App. 889 (366 SE2d 240) (1989).

5. Appellant asserts that the trial court erred in its jury charge on trafficking. Review of the trial transcript reveals that the court correctly charged the jury in regard to the trafficking count in accord with the principles enunciated in Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988). The court also clearly distinguished between actual and constructive possession, instructing the jury that actual possession related to the trafficking count, while actual or constructive possession relates to the charges of marijuana and cocaine possession. The instructions as given were a correct statement of the law and were in no way confusing. Partridge v. State, 187 Ga. App. 325 (5) (370 SE2d 173) (1988). This enumeration of error is without merit.

6. Appellant protests the trial court’s restriction of his right to a thorough and sifting cross-examination of one of the informants. Our review of the trial transcript does not reveal that the errors asserted actually occurred. On the contrary, defense counsel was allowed to cross-examine both the informant and the undercover agent at length regarding the informants’ arrest and conviction and their association which resulted in appellant’s arrest. “Where the subject matter of the alleged curtailed cross-examination has been successfully explored and answered by a witness, the trial judge does not unduly limit a defendant’s right to a thorough and sifting cross-examination by refusing to allow it to be repeated or explored further. [Cit.] The scope of cross-examination lies largely within the discretion of the trial court. We will not disturb the exercise of that discretion where, as here, there has been no abuse of that discretion. [Cit.]” Scott v. State, 190 Ga. App. 359 (2) (378 SE2d 738) (1989). Appellant’s attempt to introduce a prior conviction of a person who did not testify or appear at the trial was correctly rejected by the trial court as irrelevant to the issues on trial. OCGA § 24-2-1; Santone v. State, 187 Ga. App. 789, 792 (3) (371 SE2d 428) (1988).

Decided March 9, 1990.

Price & Conoscienti, Teddy R. Price, for appellant.

Robert E. Wilson, District Attorney, Patricia G. Higginbotham, Desiree L. Sutton, Assistant District Attorneys, for appellee.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


author: Beasley, Judge.

text:
    A89A1729.
    MOTOR CONVOY, INC. v. BRANNEN et al.
    (391 SE2d 671)
   Beasley, Judge.

We granted defendant Motor Convoy’s application for review of the denial of its motion to transfer for lack of venue. Plaintiffs Arnie and Kathy Brannen were involved in a vehicular collision at an intersection with an automobile driven by defendant Sarah Waters. A vehicle owned by Motor Convoy, although not directly involved in the wreck, was alleged to have been improperly parked so as to have obstructed the vision of Sarah Waters.

Plaintiffs brought suit in Long County against Waters as a resident of that county and against Motor Convoy as a nonresident joint tortfeasor. After the filing of answers, plaintiffs entered into an agreement with Waters which consisted of: 1) a consent judgment in the amount of $350,000 against Waters; 2) a contract in which, for the consideration of $15,000, plaintiffs agreed not to enforce the consent judgment. Contending that the documents constituted a release which discharged Waters, Motor Convoy sought to have the complaint against it either dismissed or transferred to the county of its residence, DeKalb.

The trial court found there were no issues to litigate between Waters and plaintiffs, excusing her from appearing at trial, but held that the settlement with the resident defendant did not divest Long County of jurisdiction over Motor Convoy, relying upon Posey v. Med. Center West, 257 Ga. 55, 59 (354 SE2d 417) (1987). It held: “A valid release of one tortfeasor from liability for a harm, given by the injured person, does not discharge others for the same harm, unless it is agreed that it will discharge them.”

Motor Convoy argues that although 1983 Ga. Const., Art. VI, Sec. II, Par. IV, allows suits against joint tortfeasors to be brought in the county where one resides, defendant is entitled to be sued in the county of its residence under 1983 Ga. Const., Art. VI, Sec. II, Par. VI, because where there is no verdict against the resident tortfeasor, jurisdiction over the nonresident is lost. O’Neill v. Western Mtg. Corp., 153 Ga. App. 151 (264 SE2d 691) (1980). It cites in support of its contention the proposition found in Chitty v. Jones, 210 Ga. 439 (80 SE2d 694) (1954), and Steding Pile Driving Corp. v. John Cunningham & Assoc., 137 Ga. App. 165, 166 (1) (223 SE2d 217) (1976), that to retain jurisdiction, liability must be established against the resident.

Although Posey, supra, changed the law that the release of one joint tortfeasor releases all, Motor Convoy contends that venue requirements remain and a consent judgment is not an adjudication on the merits of plaintiffs’ claim against the resident tortfeasor. Cantrell v. Home Security Life Ins. Co., 165 Ga. App. 670, 671 (1) (302 SE2d 415) (1983). Motor Convoy further asserts that under Weems v. Freeman, 234 Ga. 575 (216 SE2d 774) (1975), the resident defendant was released pursuant to OCGA § 9-13-74 and this did not constitute an adjudication on the merits so as to retain jurisdiction over it. See Ga. R. Bank &c. Co. v. Griffith, 176 Ga. App. 198 (335 SE2d 417) (1985). As held in Timberlake Grocery Co. v. Cartwright, 146 Ga. App. 746, 747 (247 SE2d 567) (1978), “if no judgment is taken against a resident defendant, the court loses venue as to the nonresident defendant(s).”

A more accurate statement of the principle of law involved is found in Southeastern Truck Lines v. Rann, 214 Ga. 813, 815 (108 SE2d 561) (1959): “where a single suit is brought against several joint tortfeasors in a county where one of them is a resident, and where the others reside outside the county, and, where on the trial of the case, the resident defendant is found not liable by the jury, and the nonresident defendants are found liable, the court is without jurisdiction to enter judgment against the nonresident defendants.” (Emphasis supplied.)

The agreements between plaintiff and Waters did not release Motor Convoy. Posey, supra. Thus, the question for determination is whether the consent judgment and agreement not to enforce it constitute a finding that the resident was not liable so as to deprive the trial court of jurisdiction in the county where suit was brought. Woods v. Universal &c. Corp., 110 Ga. App. 394, 397 (8) (138 SE2d 593) (1964), stated: “the test of whether a verdict may be obtained against a nonresident is whether the verdict against the resident is authorized.” The consent judgment and agreement in this case must be considered more closely analogous to a finding that the resident defendant is liable than that she is not. Moreover, a consent judgment recognizes that a verdict against the resident defendant was authorized. See Alford v. Smith, 224 Ga. 802 (164 SE2d 781) (1968); Burch v. Dodge County, 193 Ga. 890, 891 (3) (20 SE2d 428) (1942); Estes v. Estes, 192 Ga. 94, 96 (14 SE2d 681) (1941). See also Empire Forest Prods, v. Gillis, 184 Ga. App. 542, 543 (1) (362 SE2d 77) (1987). The controlling fact which governs the retention of jurisdiction over the non-resident is the legal resolution of liability on the part of the resident. That is the sine qua non for jurisdiction over the non-resident, construing 1983 Ga. Const., Art. VI, Sec. II, Par. VI, and OCGA § 9-10-31 together. That being true, it was not error for the trial court to deny the motion either to dismiss or to transfer the case to DeKalb County.

Decided February 20, 1990

Rehearing denied March 12, 1990

Wilson R. Smith, for appellant.

Richard D. Phillips, for appellees.

Judgment affirmed.

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