text:
    A97A1926, A97A2296.
    NKOSI v. ATLANTA POSTAL CREDIT UNION (two cases).
    (494 SE2d 566)
   Ruffin, Judge.

Atlanta Postal Credit Union (the “credit union”) sued Cary Muata Nkosi a/k/a Cary Isom Lewis for debts Nkosi owed under two loan agreements and a credit account. The trial court granted summary judgment to the credit union, awarding it over $12,000 in principal, interest and attorney fees. In Case No. A97A1926, Nkosi appeals pro se from the grant of summary judgment. Based on Case No. A97A1926, the credit union moved for the trial court to require Nkosi to post a supersedeas bond. In Case No. A97A2296, Nkosi appeals pro se from the trial court’s grant of the motion for superse-deas bond. For the following reasons, we affirm the trial court in Case No. A97A1926 and dismiss Nkosi’s appeal in Case No. A97A2296.

We highlight Nkosi’s failure to comply with this Court’s procedures regarding filing of the enumerations of errors and briefs. See Court of Appeals Rules 22 (a), 26 and 27 (a). In Case No. A97A1926, the only document filed by Nkosi is entitled “Debtor’s Brief in Opposition to Final Judgment Within Civil Action 96A23084-4/Order Requiring Supersedea (sic) Bond” (the “Brief”). There is no enumeration of error as required by Court of Appeals Rule 22 (a) and OCGA § 5-6-40. The Brief is also devoid of any statements regarding the proceedings below, the preservation of errors and the applicable standard of review as required by Court of Appeals Rule 27. Rather, the Brief contains nine paragraphs which include some claimed errors, limited argument, virtually no statement of facts and no reference to the record below.

In Case No. A97A2296, Nkosi has filed the same document, although page two, which contains enumerated paragraphs five through nine, is missing. The Brief is the only submission by Nkosi in support of either of his appeals.

Even if we hold pro se filings to a less stringent standard than if drafted by an attorney, see Moss v. Rutzke, 223 Ga. App. 58 (1) (476 SE2d 770) (1996), Nkosi presents nothing of substance on which to support a reversal of the trial court.

Case No. A97A1926

In Case No. A97A1926, Nkosi argues that he was entitled to a jury trial on the credit union’s suit and that the debt at issue was based on an unfair and unconscionable reaffirmation of debt entered into during Nkosi’s Chapter 7 bankruptcy.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The record shows that on December 21, 1994, Nkosi obtained a loan with the credit union in the principal amount of $17,702.88. On June 5, 1995, Nkosi entered into a second loan agreement with the credit union for the principal amount of $4,754.48. On Feb. 6, 1995, Nkosi completed a VISA credit card agreement with the credit union.

In December 1995, Nkosi filed a voluntary bankruptcy petition. While the bankruptcy was pending, Nkosi executed a Reaffirmation Agreement in which he agreed to reaffirm the debt owed under the two loans and the credit card. See 11 USC § 524. Pursuant to 11 USC § 524 (c) (3), Nkosi’s attorney stated in a “Declaration Regarding Reaffirmation Agreement” that Nkosi entered into the agreement voluntarily and knowingly and that the reaffirmed debt did not impose an undue hardship on him. There is no evidence that Nkosi, pursuant to 11 USC § 524 (c) (4), rescinded the reaffirmation agreement within 60 days of signing it. In March 1996, Nkosi obtained a discharge in bankruptcy and his bankruptcy case was closed. Nkosi failed to pay the amounts owed under the loans and credit card, so the credit union filed suit.

Despite Nkosi’s statements in his Brief, there is no evidence that he did not voluntarily reaffirm his debt during the bankruptcy; that the reaffirmation agreement was unfair, deceptive or unconscionable; that the reaffirmed debt imposed an undue hardship on him; or that he rescinded the reaffirmation agreement within the time required by the bankruptcy laws. We find no error in the trial court’s determination that Nkosi was responsible for the debt to the credit union as a matter of law.

Nkosi was not entitled to a jury trial where there were no issues of material fact that needed resolution by a jury. “The purpose of granting summary judgment is to eliminate the necessity for trial by jury where there is no genuine issue as to any material fact shown by the record and the moving party is entitled to a judgment as a matter of law. [Cit.]” Tony v. Pollard, 248 Ga. 86, 90 (3) (281 SE2d 557) (1981).

Decided December 4, 1997.

Cary M. Nkosi, pro se.

Thompson, O’Brien, Kemp & Nasuti, John P. O’Brien, Paul J. Morochnik, for appellee.

Case No. A97A2296

In Case No. A97A2296, Nkosi fails to address in any substantive way how the trial court erred in granting the motion for supersedeas bond. As Nkosi has not presented an applicable argument or authority, this appeal is dismissed.

Judgment affirmed in Case No. A97A1926. Appeal dismissed in Case No. A97A2296.

Birdsong, P. J., and Eldridge, J., concur.

       The Brief was not filed with the Court until after the trial court issued its Order Requiring Supersedeas Bond dated May 20, 1997. This helps in some way to explain why Nkosi, who was apparently confused over the appellate process, included in the title of the Brief in Case No. A97A1926 the phrase “Order Requiring Supersedea (sic) Bond,” when he is apparently appealing only the grant of summary judgment in A97A1926.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A97A2372.
    HOLMES v. THE STATE.
    (494 SE2d 560)
   Ruffin, Judge.

A jury found Deshawn Holmes guilty of kidnapping with bodily injury and battery. The trial court sentenced Holmes to life on the kidnapping with bodily injury conviction and 12 months to run concurrently on the battery conviction. Holmes appeals, asserting that the battery was included in the kidnapping with bodily injury offense as a matter of fact. We agree and therefore reverse Holmes’ conviction and sentence for battery.

Viewed in a light most favorable to uphold the jury’s verdict, the evidence at trial showed that on the evening of the incident giving rise to the prosecution, Holmes and other individuals, including the victim, were drinking and playing cards at Sharon Williams’ apartment. After the victim left the apartment, someone noticed a music compact disc was missing. Holmes and three others suspected the victim took the disc and went after him. After finding the victim, Holmes and his companions brought him back to Williams’ apartment. When the victim denied he took the disc, Holmes and the others took him into the bathroom, searched him and began beating him. The victim was eventually taken outside and shot to death by one of Holmes’ companions.

Holmes contends that under these facts he cannot be convicted and sentenced for both kidnapping with bodily injury and battery. The State does not dispute this contention, and we also agree. “Applying the ‘actual evidence’ test of our substantive double jeopardy provisions, see OCGA §§ 16-1-7 (a), 16-1-6, we find that [Holmes’] conviction for [battery] must be set aside. The ‘actual evidence’ test, in effect, means that if the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under OCGA § 16-1-6 (1).” (Citations and punctuation omitted.) Mon-tes v. State, 262 Ga. 473, 474 (1) (421 SE2d 710) (1992).

Decided December 4, 1997.

M. Ross Beckton, Jr., for appellant.

Spencer Lawton, Jr., District Attorney, Thomas M. Cerbone, Assistant District Attorney, for appellee.

In this case the evidence used to prove Holmes perpetrated the battery of the victim — that he beat him in Williams’ bathroom — was used to establish that Holmes injured the victim during the commission of the kidnapping. Accordingly, the battery was included in the offense of kidnapping with bodily injury as a matter of fact. See id.; Williams v. State, 238 Ga. 244 (7) (232 SE2d 238) (1977). Thus, Holmes’ conviction and sentence for battery must be reversed, and the trial court is directed to vacate the conviction and sentence for this offense. See id.

Judgment affirmed in part and reversed in part.

Birdsong, P. J, and Eldridge, J, concur.


author: Blackburn, Judge.

text:
    A97A2468.
    CROSBY v. DeMEYER et al.
    (494 SE2d 568)
   Blackburn, Judge.

Wayne and Glenda DeMeyer sued Randy Crosby d/b/a Crosby Construction Company for negligent construction of their house, and the jury awarded the DeMeyers $10,935.25 in damages and $5,000 in attorney fees. Crosby appeals the denial of his motions for directed verdict and for judgment n.o.v., contesting the sufficiency of the evidence.

“In reviewing the denial of a motion for judgment notwithstanding the verdict, this Court must determine whether there is any evidence to support the jury’s verdict. The same standard of review applies from the denial of a motion for directed verdict. . . . We must construe the evidence in the light most favorable to the prevailing party.” (Citations omitted.) Ga. Power Co. v. Irvin, 267 Ga. 760, 762 (1) (482 SE2d 362) (1997).

1. Crosby contends that he was entitled to a directed verdict or judgment n.o.v. because there was no evidence of the applicable standard of care.

“Generally plaintiffs in a negligent construction case must establish the standard of care applicable to the defendant by the introduction of expert testimony. A standard of care must be proved by an expert in professional negligence cases because a jury cannot rationally apply negligence principles to professional conduct without evidence of what the competent professional would have done under similar circumstances; as the jury may not be permitted to speculate about what the professional custom may be, there must be expert evidence as to the professional custom required in such cases. However, even in professional negligence cases, evidence of negligence in some cases may be so ‘clear and palpable’ that it may be understood by a jury without expert evidence as to a professional standard of care. . . . [I]f the defendant himself testifies that he should have performed and did perform an act which the evidence shows he did not perform, and if causation is shown, the case may become a ‘clear and palpable’ case of negligence and proof of a professional standard is not required. . . . If it is not necessary to establish by experts the parameters of acceptable professional conduct in order to prove negligence or breach of contract for failure to perform the contract in a workmanlike manner, the case may not strictly require expert testimony as to a standard of care applied by experts in like circumstances.” (Citations and emphasis omitted.) Bilt Rite of Augusta v. Gardner, 221 Ga. App. 817, 818 (472 SE2d 709) (1996).

Plaintiffs did not present expert testimony as to the applicable standard of care. However, they contend that such evidence was unnecessary because Crosby admitted negligence in the construction of the house. Plaintiffs do not provide any citations to the record to support this factual assertion in violation of Court of Appeals Rule 27 (b) (1). This Court has no duty to cull the record in search of evidence to support the contentions of either of the parties. Nevertheless, we have exercised our discretion in reviewing the record and find that it supports plaintiffs’ contentions.

Plaintiffs claimed that their driveway suffered extensive cracking because it was constructed without expansion joints. During direct examination by his attorney, Crosby was asked the following questions with respect to the driveway: “Q. . . . you realized that there were some cracks in it. A. I did. Q. And you realized that there was no expansion joints in there. A. I did. Q. Do you agree that there should have been expansion joints in there? A. If I had have been on that site the day the concrete was poured, yes, there would be expansion joints. Q. Okay, but there’s not? A. No, there’s not.”

Plaintiffs also contended that the roof was improperly constructed. Among other things, they claimed that Crosby failed to properly weather strip the edge of the roof. When questioned by his attorney about this, Crosby admitted that there should have been caulking between the wood and brick: “Q. Has it come to your attention that indeed there is no caulk between the — the board and the brick? A. I think you brought it to my attention. Q. Okay. And that — and it’s supposed to have caulk in there? A. It should have caulk in there, that’s correct.”

Plaintiffs also claimed that the roof had not been framed properly, and that the shingles would need to be removed and the plywood renailed. During direct examination, Crosby stated “I’m not disagreeing that the roof needs to be repaired. . . . [The shingles] got to come off and the plywood’s got to be nailed back down. I’m in agreement with that.”

During closing argument, Crosby’s attorney admitted liability, but contested the amount of damages claimed by plaintiffs. He stated, “a number of these other items we have no problems with. And we’ve listed those for you. And that’s what that adds up to, $5,839, and that’s what we’re going to ask you to award the plaintiffs. They — we owe them some money.”

“[I]f the defendant himself testifies that he should have performed ... an act which the evidence shows he did not perform,. . . the case may become a ‘clear and palpable’ case of negligence and proof of a professional standard is not required.” (Punctuation and emphasis omitted.) Bilt Rite, supra. Given Crosby’s and his attorney’s admissions, the jury was authorized to find for plaintiffs without the necessity of expert testimony regarding the standard of care.

2. Crosby also contends the court erred in denying his motions for directed verdict and for judgment n.o.v. with respect to plaintiffs’ claim for attorney fees under OCGA § 13-6-11.

“An award of attorney fees [under OCGA § 13-6-11] is unauthorized if appellee failed to prove the actual costs of the attorney and the reasonableness of those costs.” Fiat Auto U.S.A. v. Hollums, 185 Ga. App. 113, 116 (5) (363 SE2d 312) (1987); see also Hughes v. Great Southern Midway, 265 Ga. 94, 95 (1) (454 SE2d 130) (1995). “Proof of what was paid for professional services is not, without more, sufficient proof of their value.” (Punctuation omitted.) Eberhart v. Morris Brown College, 181 Ga. App. 516 (352 SE2d 832) (1987). The only evidence regarding attorney fees in this case was Glenda DeMeyer’s testimony that plaintiffs “had to borrow approximately $4,700 to pay [their attorney] fees.” Even if this constitutes evidence as to how much was paid, it does not constitute evidence as to the reasonableness of those fees. Accordingly, the award of attorney fees to plaintiffs must be reversed. See id.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Johnson, J., concur.

Decided December 4, 1997.

Godlove & Carellas, Robert L. Persse, for appellant.

Wallace & Tetreault, Matthew W. Wallace, for appellees.


text:
    A97A2530.
    THE STATE v. FIELDING.
    (494 SE2d 561)
   Ruffin, Judge.

On March 8, 1997, Kristen George Fielding was arrested for driving under the influence of alcohol in addition to other traffic violations. Fielding moved to suppress the results of the Intoxilyzer 5000 test administered to him, arguing that he was not advised of his implied consent rights as required by OCGA § 40-5-67.1 (b). The trial court granted the motion, and the state appealed. For the following reasons, we affirm.

“In cases involving the review of the grant or denial of motions to suppress or motions in limine, we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous. [Cits.]” Wells v. State, 227 Ga. App. 521 (489 SE2d 307) (1997).

Viewed in this light, the record shows that during the early morning hours of March 8, a Lowndes County deputy sheriff noticed a car stopped in the middle of a two-lane road approximately fifty to one hundred feet from the road’s intersection with Highway 41 South. Fielding was sitting in the driver’s seat, leaning over onto the passenger’s side of the car. The deputy sheriff initiated his blue lights, at which point Fielding drove to the intersection and stopped. According to the deputy sheriff, Fielding was unsteady on his feet, smelled of alcohol and had slurred speech and bloodshot eyes. Fielding failed field sobriety tests and was placed under arrest for DUI. The deputy sheriff then read Fielding an implied consent warning. Fielding agreed to submit to a state-administered test and was subsequently taken to the county jail where a test was conducted. Fielding declined an additional test of his own choosing.

In reading the warning, the deputy sheriff stated that “Georgia law requires you to submit to the state administered chemical test of your blood, breath, urine or other bodily substances. . . .” The warning required by OCGA § 40-5-67.1 (b) provides that “Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine or other bodily substances. . . .” (Emphasis supplied.) The deputy sheriff’s warning also deviated from the statutorily mandated warning when he stated that “[a]fter first submitting to the required state tests, you are entitled to an additional chemical test of your blood, breath, urine. . . .” The statutory warning does not contain the word “an” and states that a person is entitled to “additional chemical tests.” (Emphasis supplied.) OCGA § 40-5-67.1 (b).

In granting the suppression motion, the trial court, relying on Richards v. State, 225 Ga. App. 777, 779 (2) (484 SE2d 683) (1997), ruled that the officer was required to read the exact language of OCGA § 40-5-67.1 (b). The state argues on appeal that strict compliance with the Code section, rather than exact compliance, is all that is required. We disagree.

In 1995, the legislature redrafted in its entirety OCGA § 40-5-67.1 (b) in part to provide for the admissibility of breath samples. See Ga. L. 1995, p. 1160. The prior version of the Code subsection merely listed five rights of which a person stopped for DUI had to be apprised prior to administration of the test or tests. Ga. L. 1994, p. 1603. The former version, however, did not require that specific language be used in stating the warning. The former subsection also did not state that compliance with the subsection made the test results admissible against the person stopped, but merely provided that “[flailure to provide any notice required under this subsection shall not invalidate the suspension pursuant to this Code section of any driver’s license.” Ga. L. 1994, p. 1603.

The 1995 amendment, effective April 21, 1995, codified “the wording of the implied consent warning to be given to drivers stopped for DUI [and] . . . mandated different warnings which were based on the driver’s classification.” 12 Ga. St. U. L. Rev. 289, 291 (1995); Ga. L. 1995, p. 1160. The redrafted Code section provides that “[a]t the time a chemical test or tests are requested, the arresting officer shall select and read to the person the appropriate implied consent warning from the following: (1) Implied consent notice for suspects under age 21. . . (2) Implied consent notice for suspects age 21 or over . . . (3) Implied consent notice for commercial motor vehicle driver suspects. . . .” (Emphasis supplied.) OCGA § 40-5-67.1 (b). After listing the warnings that had to be given, the new subsection added that “[i]f any such notice is used by a law enforcement officer to advise a person of his or her rights regarding the administration of chemical testing, such person shall be deemed to have been properly advised of his or her rights under this Code section and under Code Section 40-6-392 and the results of any chemical test, or the refusal to submit to a test, shall be admitted into evidence against such person.”

One of the first cases interpreting the new subsection was Martin v. State, 217 Ga. App. 860 (460 SE2d 92) (1995), decided July 13, 1995. We noted in this case that ££[u]nder former law, it [was] well-settled that a defendant [was] not entitled to a warning which tracks the exact language of the implied consent statute.” (Citations and punctuation omitted.) Id. at 860-861. “OCGA § 40-5-67.1 was amended by the legislature to provide for the specific implied consent warning which law enforcement officers are required to give to one suspected of driving or being in actual physical control of a moving motor vehicle. . . .” (Emphasis supplied.) Id. at 860-861. We concluded that it was clear in amending the Code subsection that the legislature intended to mandate the warning to be given. Id. Thus, we said, “our role is to simply compare the warning given to the warning required.” Id. at 862. Because the 1995 amendment was made applicable to cases pending as of April 21, 1995, we held that the officer’s warning to Martin did not comply with any of the warnings of the amended subsection. Id.

After this decision was rendered, the legislature, during the 1995 Extraordinary Session, amended OCGA § 40-5-67.1 again to add OCGA § 40-5-67.1 (b.l). Subsection (b.l) was made effective August 18, 1995, and rendered the April amendment to subsection (b) applicable only to stops made after April 21, 1995. Ga. L. 1995, Ex. Sess., p. 5. Accordingly, when the Supreme Court of Georgia received Martin’s case upon the State’s appeal from our July 21, 1995 decision, it reversed since Martin was stopped prior to April 21,1995. State v. Martin, 266 Ga. 244 (466 SE2d 216) (1996). The Supreme Court concluded that while we were correct in reversing the trial court, given the law existing at that time, the law had since changed. Id. at 245. The court agreed with this Court, however, that the language in the April amendment was mandatory. Id. Based on new subsection (b.l) and the Supreme Court’s decision, we vacated our opinion of July 21, 1995. See Martin v. State, 221 Ga. App. 630 (474 SE2d 195) (1996).

In cases decided subsequent to our first Martin decision, we have consistently ruled that the implied consent warnings of amended OCGA § 40-5-67.1 (b) are mandatory. See State v. Golub, 220 Ga. App. 810 (470 SE2d 331) (1996) (OCGA § 40-5-67.1 requires “the reading of precise implied consent language at the time a chemical test or tests are requested”); Park v. State, 220 Ga. App. 215 (469 SE2d 353) (1996) (by amending OCGA § 40-5-67.1 (b), the legislature was requiring “that specific language be used as the implied consent warning”); State v. Boone, 221 Ga. App. 256 (471 SE2d 53) (1996) (OCGA § 40-5-67.1 (b) “mandates that specific language be read upon arrest”); Howard v. State, 219 Ga. App. 228 (465 SE2d 281) (1995); State v. Hunter, 221 Ga. App. 837 (473 SE2d 192) (1996). However, all of the above cases were decided based on the former version of OCGA § 40-5-67.1 since the subject offenses occurred prior to April 21, 1995.

One of the first cases in which we found the current version of OCGA § 40-5-67.1 applicable is Richards, supra. We agreed with Richards that the trial court erroneously denied his motion to exclude his breath test results because “[t]he implied consent warning read by [the arresting officer] did not match exactly the words of OCGA § 40-5-67.1 (b), which applies to all cases involving offenses committed on or after April 21, 1995.” (Emphasis supplied.) Id. at 779-780. Because Richards’ offense occurred in October 1995, his case was unlike Martin, Hunter, Golub, and Howard, supra, where “the substance of the implied consent warning controlled over the exact wording or form.” Id. Richards’ “offense . . . clearly occurred at a time when [the arresting officer] was required to read the exact language mandated by OCGA § 40-5-67.1 (b).” Richards, supra at 779.

In interpreting statutes, we are to “look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). Prior to the legislature enacting the April 1995 amendment to OCGA § 40-5-67.1 (b), both trial and appellate courts expended great time and effort in determining whether the omission of certain words or the addition of other words in an implied consent warning made the warning defective to the extent it did not inform a DUI suspect of all of his or her rights. See, e.g., Howard, supra (under old law, failure to advise suspect that independent test could be of “blood, breath, urine, or other bodily substances” was inconsequential since warning given mentioned those substances when it provided that “chemical tests” could be performed at the state’s request); Park, supra (failure to inform suspect of right to a second test by a “qualified” person of his choosing, omitting the word “qualified,” did not render the test results inadmissible). As we have concluded previously, the prior law did not entitle a suspect “to a warning which tracks the exact language of the implied consent statute; [and] the sufficiency of the warning [was] to be judged by its content and not its form.” Golub, supra at 811. In promulgating the 1995 amendment, the legislature obviously intended to provide a bright line test that clarified the specific language to be given in a warning and to alleviate the need for a case-by-case determination of what warnings are and are not legally sufficient. To hold, as the state suggests in the instant case, that strict compliance with OCGA § 40-5-67.1 (b) does not mean reading the warnings exactly as written, would effectively return us to the state of the law prior to the 1995 amendment. The substance of the implied consent warning would again control over form. We decline to make such a holding absent a clear mandate from our legislature.

Decided December 4, 1997.

Richard W. Shelton, Solicitor, for appellant.

Samuel F. Greneker, William C. Head, for appellee.

Accordingly, as it is clear that the arresting officer did not read Fielding the appropriate warning exactly as set forth in OCGA § 40-5-67.1 (b) and that the amended Code section applied given the arrest date of March 8, 1997, the trial court’s finding that the arresting officer did not read Fielding the required warning was not clearly erroneous. See Wells, supra; Richards, supra.

Judgment affirmed.

Birdsong, R J., and Eldridge, J., concur.


author: Beasley, Judge.

text:
    A97A1630.
    PROVIDENCE CONSTRUCTION COMPANY v. BAUER.
    (494 SE2d 527)
   Beasley, Judge.

This case presents the Court its first opportunity to apply the provisions of OCGA § 9-11-11.1. This 1996 law, sometimes referred to as an “anti-SLAPP” statute, is designed to prevent “Strategic Litigation Against Public Participation.” See Kent & Isenberg, “Georgia’s New Anti-SLAPP Statute,” Ga. Bar J. (June 1997), p. 26.

Providence Construction Company brought this suit against Dave Bauer and other residents of Cumberland Ridge, a Cobb County subdivision developed by Providence. Providence is represented in court by its president, who is not a member of the State Bar of Georgia, but the appeal was docketed on April 8, 1997, before the rule in Eckles v. Atlanta Tech. Group, 267 Ga. 801, 806 (2) (485 SE2d 22) (1997), became effective.

As far as defendants are concerned, only Bauer remains as a party. The developer sought to enjoin the residents from actively opposing its efforts to rezone a parcel of property adjoining the subdivision. Providence also sought money damages on its claim that Bauer and other residents breached contractual duties and tortiously interfered with Providence’s contractual relations by circulating petitions opposing rezoning, writing letters to county officials and speaking out before the Cobb County Planning Commission. After an expedited hearing held pursuant to OCGA § 9-11-11.1 (d), the court found Providence’s suit to be an improper attempt to chill Bauer’s free speech and petition rights and dismissed the complaint.

1. In enacting the anti-SLAPP statute, the legislature declared, “it is in the public interest to encourage participation by the citizens of Georgia in matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances. The General Assembly of Georgia further finds and declares that the valid exercise of [these] constitutional rights . . . should not be chilled through abuse of the judicial process.” OCGA § 9-11-11.1 (a).

To prevent such abusive litigation, the legislature imposed several procedural safeguards. Any complaint arising from an act “which could reasonably be construed as an act in furtherance of” a defendant’s free speech or petition rights must be accompanied by a verification, based on belief formed after reasonable inquiry, that the suit is well grounded in fact and law or represents a good-faith argument for the extension of existing law. OCGA § 9-11-11.1 (b). The plaintiff and her counsel must also verify the act forming the basis of the suit is not a “privileged communication” under OCGA § 51-5-7, and that the suit is not filed “for any improper purpose such as to suppress a person’s . . . right of free speech or right to petition government. . . .” OCGA § 9-11-11.1 (b). If the defendant files a motion to dismiss, the trial court must hold a hearing on the motion within 30 days of its service, if possible. OCGA § 9-11-11.1 (d).

Bauer filed a motion to dismiss on grounds that the activities of which Providence complained were privileged as “[statements made in good faith as part of an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern. . . .” OCGA § 51-5-7 (4). Such statements are defined in OCGA § 9-11-11.1 (c) to include written and oral statements and petitions made to legislative or executive bodies regarding an issue being reviewed by the body. As the trial court construed the statute, opposing a rezoning application by collecting signatures for a petition, writing letters to government officials, and speaking out at an official hearing clearly fall within the category of privileged activities.

Providence defends its suit against Bauer as valid because his actions violated a restrictive covenant between residents of Cumberland Ridge and Providence which runs with the land and binds subsequent purchasers such as Bauer whose deeds reflect they are subject to the restrictive covenant. See generally OCGA §§ 44-5-60; 44-5-39. See also Rosen v. Wolff, 152 Ga. 578, 583 (110 SE 877) (1922) (discussion of covenants running with land compared with personal covenants); Lowry v. Norris Lake Shores Dev. Corp., 231 Ga. 549, 551 (203 SE2d 171) (1974) (covenant runs if it concerns the land or its use and subsequent grantee has notice).

The covenant states: “It is presently contemplated by [Providence] that portions of the overall scheme for the Development, and any and all contiguous land in which [Providence] presently has or may hereafter acquire an interest, include, in addition to single-family residential lots, phases to be developed as apartments, townhouses, condominiums, patio homes, shopping centers (with tenants who shall be approved at the sole discretion of [Providence]), golf driving range, office, storage and light industrial. By acceptance of the deed conveying a Lot, each Owner acknowledges the foregoing plan and Covenants and agrees not to oppose any application to amend the zoning ordinances or any petition seeking a variance of the zoning laws and regulations of the appropriate political subdivisions in order to permit such land usages or the use of other property in the area for a golf course, lounge, restaurants, and recreational facilities; further, each owner agrees not to oppose any license application or transfer relating to any such permitted land usages in the Development and in any and all contiguous land in which [Providence] presently has or may hereafter acquire an interest.” This restrictive covenant is unenforceable as against public policy.

“A contract cannot be said to be contrary to public policy unless the General Assembly has declared it to be so, or unless the consideration of the contract is contrary to good morals and contrary to law, or unless the contract is entered into for the purpose of effecting an illegal or immoral agreement or doing something which is in violation of law. [Cits.]” Porubiansky v. Emory Univ., 156 Ga. App. 602, 603 (275 SE2d 163) (1980), aff'd, 248 Ga. 391 (282 SE2d 903) (1981). “A contract which is against the policy of the law cannot be enforced.” OCGA § 13-8-2 (a).

In OCGA § 9-11-11.1 (a), the General Assembly specifically declared that it is the public policy of this state to encourage citizens to exercise their rights of free speech and petition, and it forbade abuse of the judicial system to discourage such activity. Providence seeks to enforce a covenant which inhibits the speech and political activities of not only the original property purchaser, but also of all subsequent lot purchasers. “Contracting parties may waive or renounce what the law has established in their favor provided such waiver or renunciation does not thereby injure others or affect the public interest.” Young v. John Deere Plow Co., 102 Ga. App. 132, 135 (115 SE2d 770) (1960). Also, the waiver of a right must be made voluntarily and with knowledge of the rights being waived. See West v. Fulton County, 267 Ga. 456, 458 (2) (479 SE2d 722) (1997).

The covenant is overly broad, as it seeks to prevent residents from opposing future unspecified attempts by the developer to seek rezoning of “any and all contiguous land” that Providence may acquire. The covenant, which is also vague, would prevent all lot purchasers in a development from exercising their constitutional rights to oppose government action which may affect their neighborhood’s character and the properties’ value. Such a prohibition is contrary to public policy and the public interest. See Porubiansky, supra.

United Egg Producers v. Standard Brands, 44 F3d 940 (11th Cir. 1995), which Providence cites, is distinguishable. No governmental action was involved where a trial court ratified a settlement agreement by which each party agreed not to disparage the other. This case involves the affecting of “governmental action.” Plus, the restrictions on free speech rights in United Egg Producers were narrow and specific. As the court noted, that case concerned an agreement settling a lawsuit, made between “two disputing parties in positions of equal bargaining power ... to restrict, in a limited degree, their First Amendment rights on commercial speech.” Id. at 943.

Providence’s reliance on Muldawer v. Stribling, 243 Ga. 673 (256 SE2d 357) (1979), is likewise misplaced. The Supreme Court held that a subsequent purchaser of property was bound by a covenant forbidding him from seeking to rezone the property. In effect, that property was pledged for a certain use, and such covenants have been found proper and enforceable. See, e.g., Chambers v. Gallaher, 257 Ga. 795 (364 SE2d 576) (1988) (covenant prohibiting operation of business in residential subdivision upheld); The Deck, Inc. v. Noe, 222 Ga. 189 (149 SE2d 68) (1966) (covenant prohibiting erection of any building other than motel upheld). Although Muldawer recites that the covenant at issue resulted from an agreement that one party would not oppose a rezoning, the enforceability of that portion of the agreement was not at issue.

Because Providence’s covenant is unenforceable as against public policy, we need not determine whether it was otherwise binding on Bauer or other residents of Cumberland Ridge. A judgment right for any reason will be affirmed. See Little v. Fleet Finance, 224 Ga. App. 498, 503-504 (1) (481 SE2d 552) (1997).

2. Next, Providence contends the trial court had no authority to dismiss the complaint once Providence filed the affidavit required by OCGA § 9-11-11.1 (b). But verified or not, the face of the complaint failed to state a claim upon which relief could be granted. See Little, supra at 504 (2).

3. Providence argues that the trial court should have allowed it to amend its complaint to state a claim. Nothing in the record shows Providence ever offered any deficiency-correcting amendment. An issue raised for the first time on appeal is not considered. See Merrill v. First Union Nat. Bank &c., 224 Ga. App. 773, 774 (1) (481 SE2d 890) (1997).

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. McMurray, P. J, concurs in Divisions 1 and 3 and in the judgment.

Decided November 17, 1997

Reconsideration denied December 5, 1997

Ronald S. Leventhal, pro se.

Talley & Darden, David P. Darden, David T. Markle, for appellee.


text:
    A97A1889.
    LAWSON et al. v. BRUNO’S FOOD STORES, INC.
    (494 SE2d 543)
   Beasley, Judge.

As she was greeted by a store cashier, Tommie Lawson slipped and fell in water on the floor in one of Bruno’s grocery stores. In her premises liability action against Bruno’s based on OCGA § 51-3-1, the court granted summary judgment to Bruno’s. The issues are (i) whether Bruno’s had constructive knowledge of the hazard, and (ii) whether the cashier’s greeting distracted Lawson so a jury could find she was exercising due care for her own safety, as required by OCGA § 51-1-2, when she did not see the puddle and fell in it.

1. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, wurrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). So construed, the evidence shows Lawson arrived at the grocery store while it was “misty raining.” There was no mat or warning sign outside or inside the door, but she “probably” wiped her shoes and feet before she went in. She approached the shopping carts taking at least 14 steps into the store, and when she reached them, a cashier whom she knew greeted her. The cashier was not checking out other customers at the time. Lawson responded to the greeting but slipped and fell in a beachball-sized puddle of water located ten paces from the cashier, directly in front of the shopping carts. The cashier saw Lawson fall and went to assist.

2. In Georgia, “[a]t the threshold of analysis in every such premises liability case stand two well-settled legal principles: First, the owners and occupiers of property are not insurers of the safety of their invitees; and, second, in order to prevail, the plaintiff must show that the owner or occupier of the premises had superior knowledge of the alleged defect which caused the plaintiff’s fall. [Cits.]” (Emphasis in original.) Moore v. Kroger Co., 221 Ga. App. 520 (471 SE2d 916) (1996); see also Harris v. Star Svc. &c. Co., 170 Ga. App. 816, 817 (318 SE2d 239) (1984); Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 173 (2) (138 SE2d 77) (1964). To demonstrate superior knowledge, “the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

(a) A plaintiff may establish constructive knowledge by evidence that “an employee was in the immediate vicinity of the hazardous condition and could easily have noticed and corrected it. [Cit.]” Hornbuckle Wholesale Florist &c. v. Castellaw, 223 Ga. App. 198, 199 (477 SE2d 348) (1996); see Alterman Foods, supra, 246 Ga. at 622. Bruno’s employee was unoccupied and had a clear, unobstructed vantage point from which to see the sizeable puddle of water (larger than an 8 1/2" x 14" file folder) located only ten paces away. The employee observed Lawson approach the location of the puddle of water as she spoke to Lawson when she entered the store. No one else walked in or out of the store at the time, nor was anyone else around the carts. The record could support a finding of constructive knowledge.

(b) Lawson must also show that she was either without knowledge of the substance or prevented from discovering the foreign substance for some reason attributable to the defendant. Alterman Foods, supra, 246 Ga. at 623. In rainy day slip-and-fall cases, plaintiffs are charged with equal knowledge “that water is apt to be found in any area frequented by people coming in from the rain outside.” Hagin v. Winn-Dixie Stores, 180 Ga. App. 303, 304 (348 SE2d 766) (1986); see also Roby v. Kroger Co., 219 Ga. App. 459, 460 (465 SE2d 496) (1995); Gibson, supra, 110 Ga. App. at 173-178 (2). “[I]f warning [of water on the floor near the entrance] were needed the rain itself supplied it.” (Emphasis in original.) Id. at 179. But a “store patron ‘is not bound to the same degree of care in discovering or apprehending danger in moments of stress or excitement or when [her] attention has been . . . diverted.’ [Cit.]” Alterman Foods, supra, 246 Ga. at 623. In fact, “ ‘setting up of a distraction, by a sign or conduct, which will so divert the customer’s attention as to be the proximate cause of his injury . . ., may constitute actionable negligence on the part of the defendant.’ [Cits.]” Id.

The store employee attracted Lawson’s attention and eye focus, and a jury could find this diverted Lawson from noticing the hazardous condition of the floor. “ “Where the distraction comes from [the landowner], and is of such a nature as naturally to divert the plaintiff,’ ” the plaintiff’s failure to observe it may not constitute a failure to exercise ordinary diligence; it is a jury question. Gray v. Delta Air Lines, 127 Ga. App. 45, 51-52 (2) (192 SE2d 521) (1972); see Thompson v. Regency Mall Assoc., 209 Ga. App. 1, 3 (1) (432 SE2d 230) (1993) (whether plaintiff exercised ordinary care in light of distraetion is a jury question). A greeting initiated by a store employee, which directs attention to the employee, may constitute such a distraction. See Sheriff’s Best Buy v. Davis, 215 Ga. App. 290 (450 SE2d 319) (1994); see also Jackson Atlantic, Inc. v. Wright, 129 Ga. App. 857, 859-860 (1) (201 SE2d 634) (1973) (distraction where employee asked plaintiff to move in the direction of the dangerous condition); J. C. Penney Co. v. Knight, 119 Ga. App. 70 (166 SE2d 434) (1969) (distraction where employee wished a customer “Merry Christmas”); Butts v. Academy of Beauty, 117 Ga. App. 222 (160 SE2d 222) (1968) (distraction where employee called to the plaintiff regarding appointment). Compare Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994) (distraction where customer had to call to employee to get employee to come to register).

Decided November 20, 1997

Reconsideration denied December 5, 1997.

Dozier, Lee, Graham & Sikes, Joel M. Grist, Jr., for appellants.

Martin, Snow, Grant & Napier, Lisa Edwards, Jay C. Traynham, for appellee.

Bruno’s argues that distraction cases do not apply to rainy day scenarios. Although none of the cases cited above was a rainy day case, the legal principles are still relevant. Alterman Foods allowed an action to a plaintiff who failed to discover the hazard “for some reason attributable to the defendant.” 246 Ga. 623. Roby v. Kroger Co., supra, 219 Ga. App. 459, cited by defendant, differs in that plaintiff Roby saw the water and initially skirted it before she fell. A jury must decide, for one thing, whether Lawson’s failure to discover the hazard resulted from the store employee’s speaking to her.

Bruno’s was not entitled to summary judgment.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.


text:
    A97A1912.
    SEWELL v. THE STATE.
    (494 SE2d 512)
   Beasley, Judge.

Convicted of two counts of armed robbery (OCGA § 16-8-41) and two counts of kidnapping with bodily injury (OCGA § 16-5-40), George Sewell appeals on two grounds: ineffective assistance of counsel and double jeopardy. The first issue is whether the actions of trial counsel (failure to pursue motion to suppress eyewitness identification, failure to investigate more thoroughly, failure to put on particular witness) were unreasonable or harmful. The second is whether the aggravated sodomy charged in a previous action is included in the kidnapping with bodily injury charge in this action.

Operative Facts

A man used a handgun to rob Tracy Harris and Monica Jones in DeKalb County. He then forced Jones to drive him to Fulton County, where he raped and shot her. He also forced her to place her mouth on his private part and thrust the handgun into hers. She managed to escape and notify police.

Police showed her a photo line-up of six males (not including Sewell), from which she positively stated the perpetrator was not present. Aided by an artist, she developed a computer sketch of him. When Officer Boyden, a police officer in midtown Atlanta, saw the sketch, he immediately recognized it as Sewell, a local resident. Jones was then presented with a second photo line-up of nine males, from which she positively identified Sewell. The other victim, Harris, was presented with six photos of males and identified Sewell with eighty percent certainty. Jones positively identified him at a preliminary hearing, during which he smiled at her as she sat amongst others in the gallery. At trial, both victims positively identified Sew-ell as the perpetrator.

Fulton County Trial

Sewell was first tried in Fulton County, where he had been indicted for rape, aggravated sodomy, kidnapping with bodily injury (shooting Jones with a pistol), aggravated sexual battery (forcing a pistol into Jones), and aggravated assault (shooting Jones with a pistol). Prior to impaneling a jury, the State announced it would not proceed on the aggravated sodomy count, noting that the indictment mistakenly alleged Sewell placed his mouth on the victim’s penis, when in fact the reverse had occurred. The State specified the count would not be read to the jury and would not go out to the jury. Sewell had no objection. The court did not read the count to the jury.

Following the close of the State’s case (essentially showing the facts set forth above), Sewell moved for a directed verdict on the aggravated sodomy and kidnapping counts. Because the victim was seized in DeKalb County, the court dismissed the kidnapping count for lack of venue. See Kimmel v. State, 261 Ga. 332, 334 (1) (404 SE2d 436) (1991) (“failure to establish venue does not bar re-trial in a court where venue is proper and proven”); Schiefelbein v. State, 258 Ga. 623 (373 SE2d 354) (1988) (no jeopardy attaches to count mistried for lack of venue). The court noted the State had not proceeded on the aggravated sodomy count, which had been stricken. Sewell nevertheless insisted he was entitled to a directed verdict on it because the State had not offered any evidence to support the impossible allegation in the indictment. The State had no objection, and the court entered a directed verdict on the count. In closing argument, Sewell argued he was not charged with aggravated sodomy.

DeKalb County Trial

Trial ensued in DeKalb County on four charges: Count 1 — armed robbery of Jones; Count 2 — armed robbery of Harris; Count 3 — kidnapping with bodily injury (forcibly placing sex organ in the mouth of Jones); and Count 4 — kidnapping with bodily injury (shooting Jones with a handgun). Prior to trial, Sewell moved to suppress the eyewitness identification as tainted by impermissibly suggestive photo line-ups. His attorney did not pursue it in DeKalb because the Fulton County court denied the same motion. Sewell also moved to bar the prosecution of the kidnapping counts on the ground of double jeopardy due to the Fulton County action. The court refused. Following his conviction on all counts, Sewell sought a new trial, alleging ineffective assistance of counsel. The court conducted an evidentiary hearing and entered a detailed order finding against Sewell on each allegation of ineffectiveness.

1. Ineffective assistance of counsel. “ ‘Generally, the burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with the client.’ [Cit.]” Bevil v. State, 220 Ga. App. 1, 4 (7) (c) (467 SE2d 586) (1996). “ ‘A conviction will not be reversed on the basis of ineffective assistance of counsel unless counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Cit.]” Bell v. State, 226 Ga. App. 271, 274 (7) (486 SE2d 422) (1997).

(a) Sewell first alleges trial counsel was ineffective because he failed to pursue the motion to suppress the eyewitness identification. Counsel need not pursue non-meritorious motions to suppress. See Edwards v. State, 224 Ga. App. 332, 334-335 (3) (a) (480 SE2d 246) (1997); Hearst v. State, 212 Ga. App. 492, 494-495 (2) (b) (441 SE2d 914) (1994). A defendant “must make a ‘strong showing’ that the evidence would have been suppressed had a motion to suppress been” pursued. Roberts v. State, 263 Ga. 807, 809 (2) (e) (439 SE2d 911) (1994). Having reviewed the photographic array, the trial court found there was no legitimate ground on which to challenge the identification.

Following a lengthy hearing, the Fulton County court had already rejected the same motion. Trial counsel testified he saw no merit in it. The photographic line-up shown to Jones contained photos of males with similar build, hair, and facial features. The record does not contain the other photos shown to Harris. The record does not reflect the line-ups were impermissibly suggestive. Even if the line-ups were suggestive, there was little likelihood of irreparable misidentification because there was independent evidence: (i) Jones was presented with a photo line-up without Sewell and positively told the officer the perpetrator was not there; (ii) Jones created a computer sketch resembling Sewell before seeing the photo line-up with Sewell’s picture; (iii) Sewell recognized Jones at the preliminary hearing, and (iv) the victims positively identified Sewell from the line-ups. See Jefferson v. State, 206 Ga. App. 544, 546 (2) (425 SE2d 915) (1992).

(b) Sewell complains his trial counsel failed to get a separate DNA analysis of the semen or blood specimens extracted from Jones and instead relied on the findings of the State’s lab. As the trial court found, this argument is specious because no bodily fluid was recovered during Jones’ examination which belonged to anyone except her. Not only did a public and a private lab confirm there was nothing present, Sewell’s medical expert reviewed the hospital records and verified this. Sewell presented no evidence to contradict the lab results. Failure to proffer at the hearing what would have been shown at trial made it impossible for the court to find the trial result would have been any different had counsel obtained an independent analysis. See Mitchell v. State, 220 Ga. App. 264, 266 (469 SE2d 707) (1996).

(c) Sewell claims trial counsel should have requested an exploratory examination of his blood to show he did not have the sexually-transmittable disease suffered by Jones. Based on counsel’s experience in the Fulton case where this disease of the victim was put in evidence, he testified that any evidence that Sewell did not suffer from the disease would be of very limited value. Counsel discussed with Sewell that this potential evidence was not worth the price of giving up the right to make the final argument to the jury.

Deciding what evidence should be presented “is a matter of trial strategy and tactics, and tactical errors do not constitute ineffective assistance of counsel. [Cit.]” Bradford v. State, 221 Ga. App. 232, 235 (3) (a) (471 SE2d 248) (1996). Declining to present evidence (other than the defendant’s own testimony) so as to preserve the final word in closing argument is a well-recognized trial tactic. Williams v. State, 265 Ga. 681, 682 (1) (461 SE2d 530) (1995); Boone v. State, 224 Ga. App. 563 (1) (481 SE2d 569) (1997); Keanum v. State, 212 Ga. App. 662, 664 (3) (442 SE2d 790) (1994); Avans v. State, 207 Ga. App. 329, 330 (2) (427 SE2d 826) (1993).

(d) With respect to adequate investigation, Sewell introduced no evidence at the hearing as to what further investigation by counsel would have revealed. Absent a proffer, defendant cannot meet his burden of making “an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case.” Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995).

(e) Last is the failure to call Sewell’s mother to testify that Officer Boyden had a grudge against him. The court found this officer’s testimony and alleged personal vendetta were collateral to the main issue of identity and that Sewell agreed with counsel not to call his mother so as not to lose the right to concluding argument.

Officer Boyden’s only role was his recognition of Sewell from the computer sketch. He had nothing to do with the victims’ identification of Sewell either in the line-ups or in the courtroom. Moreover, “[t]he decision as to which defense witnesses will be called is a matter of trial strategy and tactics, and tactical errors do not constitute ineffective assistance of counsel. [Cit.]” Bradford, supra, 221 Ga. App. at 235 (3) (a). As stated earlier, efforts to retain the right to first and last closing arguments are well-accepted trial tactics.

2. Denial of the plea in bar on former jeopardy as to Counts 3 and 4. Sewell argues Count 3 (kidnapping with bodily injury by placing sex organ in Jones’ mouth) is barred by the directed verdict on the aggravated sodomy count in the Fulton action, and Count 4 (kidnapping with bodily injury by shooting Jones with a handgun) is barred by his conviction for aggravated assault in the Fulton action.

“The United States and Georgia Constitutions proscribe a defendant’s being twice placed in jeopardy for the same offense. United States Constitution, Fifth Amendment; Georgia Constitution, Art. I, Sec. I, Par. XVIII. OCGA §§ 16-1-6, 16-1-7, and 16-1-8 extend the proscription of double jeopardy beyond those constitutional limits by placing limitations upon multiple prosecutions, convictions and punishments for the same criminal conduct. A defendant is placed in jeopardy when, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled and a jury has been impaneled and sworn.” (Citations and punctuation omitted.) Hubbard v. State, 225 Ga. App. 154, 155 (483 SE2d 115) (1997); see Haynes v. State, 245 Ga. 817, 818 (268 SE2d 325) (1980) (“jeopardy attaches when jury is impaneled and sworn”); Cochran v. State, 176 Ga. App. 58, 60-61 (335 SE2d 165) (1985) (statute extends proscription of double jeopardy beyond constitutional limits).

“In regard to the substantive prohibition of OCGA § 16-1-7 (a) (1), the Criminal Code provides alternative rules for determining when one crime is included in another as a matter of fact or as a matter of law so as to bar conviction and punishment for more than one crime. One of these alternatives provides that the accused may be prosecuted for but may not be convicted of more than one crime if: One crime is included in the other. A crime is included in the other when (a) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged.” (Citations and punctuation omitted; emphasis in original.) State v. Sallie, 206 Ga. App. 732, 734 (427 SE2d 11) (1992).

(a) The aggravated assault charge (shooting Jones with the handgun) in the Fulton action is included in Count 4 of the DeKalb action, which alleges Sewell committed kidnapping with bodily harm by shooting Jones with the handgun. See id. (rape charge is included in conviction of kidnapping with bodily injury by raping victim). There was one shooting. Recognizing this, the State concedes on appeal that the conviction on Count 4 should be set aside. Accordingly, the judgment is vacated as to it.

(b) The aggravated sodomy charge of the Fulton action, as pled (forcibly placing his mouth on the victim’s penis), is not included in Count 3 of the DeKalb action, which alleged Sewell committed kidnapping with bodily harm by forcibly placing his sex organ in her mouth. When moving for a directed verdict in the Fulton action, Sew-ell acknowledged the difference, arguing the State “simply did not offer any evidence to support the allegation in the indictment.” The victim’s testimony that Sewell twice forced his sex organ into her mouth was at variance with the wording of the charge. The State acknowledged this and raised no objection to Sewell’s motion for a directed verdict on the count.

Nor did jeopardy attach to the aggravated sodomy count in the Fulton action. Prior to the Fulton jury being impaneled and sworn, the State orally announced it would not proceed on this count and that it would not be read to nor go out with the jury. Sewell responded he had no objection. The court did not read the count to the jury either before or after the presentation of the evidence, and Sewell in closing argument conceded he was not charged with aggravated sodomy.

Reed v. State, 205 Ga. App. 209, 211 (2) (422 SE2d 15) (1992), held that an oral amendment of the indictment in open court prior to the selection of the jury and in the presence of defendant meant that jeopardy had not attached to the unamended indictment so as to bar prosecution under the amended accusation. In Teal v. State, 203 Ga. App. 440 (417 SE2d 666) (1992), the State was unable to get a battery charge severed, but nevertheless proceeded to try the case on the trespass charge only. In a subsequent action on the battery charge, the defendant pled double jeopardy. Rejecting this argument, Teal explained: “Appellant’s contention that evidence was presented on the battery charge but no verdict was reached is not supported by the record, as appellant’s colloquies with the court concerning his objection to the admission of evidence regarding his behavior after the arrest show that he understood only the trespass charge was being tried before the jury. [Cit.] Even if the State failed to call the battery case out of confusion over which charges had been severed, appellant nonetheless was not placed in jeopardy because no jury was sworn to hear the charge and no final disposition of the charge was made. [Cits.]” Id. at 444 (2) (c).

Decided October 27, 1997

Reconsideration denied December 5, 1997.

James D. Michael, for appellant.

George Sewell, pro se.

J. Tom Morgan, District Attorney, Barbara B. Conroy, John H. Petrey, Assistant District Attorneys, for appellee.

The Fulton court did enter a directed verdict on the aggravated sodomy charge as pled. See Bethay v. State, 235 Ga. 371, 375-376 (1) (219 SE2d 743) (1975) (jeopardy would attach to count on which directed verdict is granted). But the transcript indicates that the judge and parties understood that aggravated sodomy charge was not being tried nor considered by the jury. No jeopardy attached to the Fulton charge so as to preclude trial of the different charge of which Sewell was convicted in DeKalb County.

Denial of the plea in bar as to Count 3 of the indictment was not error.

Judgment affirmed in part and vacated in part.

McMurray, P. J., and Smith, J., concur.


author: Eldridge, Judge.

text:
    A97A2570.
    BAPTISTE v. THE STATE.
    (494 SE2d 530)
   Eldridge, Judge.

Defendant-appellant Darryl Baptiste married Debora Davis in the early 1980s and fathered two children. They were separated for several years while he was living with another woman, and he spent months out of state. In her own name only, Davis leased an apartment at 76-A Trevitta Drive, DeKalb County, where she lived with her two children. Thereafter, the defendant heard that Davis , was seeing a Daniel Tesfaye, and he became upset. Defendant decided to “rescue” his children from being subject to the influence of the lover.

On August 21, 1993, defendant approached Tesfaye outside of Davis’ apartment, while Tesfaye worked on the car that the defendant purchased for Davis; he pointed a gun at Tesfaye. The defendant forced Tesfaye to enter the apartment, threatening to shoot and kill him if he ran. Defendant placed the gun against the victim’s back and forced Tesfaye to summon Davis from upstairs.

When Davis and Tesfaye were together, the defendant placed plastic flex cuffs on them and duct-taped their mouths. After the defendant had the victims secured, he used a Taser gun to shock them several times each. Davis was struck several times with the defendant’s fist.

The defendant went through Davis’ papers, looking for the children’s passports and birth certificates. The defendant then took Davis’ address book and car keys. He told them that he was going to take the children, and he drove off in her car with them. The victims were found by the police with flex cuffs on and duct tape over their mouths. The car was recovered at the airport. On March 16, 1994, the defendant was arrested in Charlotte, North Carolina. The children were later found elsewhere in Charlotte and returned to their mother. The defendant was returned to Atlanta, DeKalb County, and he bonded-out on March 29, 1994. On May 24, 1994, defendant was indicted, but the defendant jumped bond.

Defendant fled to Vancouver. After capture, he was extradited to Georgia on an outstanding probation warrant.

Defendant was reindicted in DeKalb County on October 18, 1996, for eight counts: four aggravated assaults; two burglaries; and two false imprisonments.

On November 4, 1996, defendant, represented by Akil Secret, entered a plea of guilty. He had been represented by three different defense counsel, including his present appellate counsel. The assistant district attorney gave the above outline of the State’s case.

Defense counsel denied the use of a gun, Taser, tape, or cuffs and stated that the defendant wanted only to rescue his children. It was admitted that he looked for birth certificates and took the car and the children. He admitted getting into a fight with Tesfaye.

The plea was non-negotiated, and the State asked for 20 years to serve, because of his lengthy record and numerous attempts at flight. Defense counsel argued vigorously against such sentence and stated that he had advised the defendant to go to trial on this case, but his client stated to him that he had spent a year waiting for trial and wanted to enter a plea at that time.

The trial court indicated that it would impose a sentence of 15 years, if the defendant wanted to enter a plea. Defendant then addressed the trial court, “I was thinking in terms of hoping that the Court may give a better recommendation if you would see the heart of the picture of this case. Unfortunately, there hasn’t been time.”

The following colloquy occurred: “[Court:] Is there going to be a plea, sir? [Defendant:] Yeah, I guess so. [Court:] You are going to enter a plea? [Defendant:] Yes, ma’am.”

On the record, defendant was then advised of his constitutional rights in order to determine if the plea was entered freely, knowingly, and voluntarily. Defendant pled guilty to Counts 2, 3, 7, and 8, charging him with two counts of aggravated assault and two counts of false imprisonment. Held:

1. Defendant alleges that he was denied fundamental due process of law when the trial judge did not sua sponte recuse herself from taking the guilty plea and from sentencing defendant because of her bias and prejudice toward defendant, which resulted in a retaliatory sentence. The trial court did not err in not sua sponte recusing herself, nor were defendant’s due process rights violated.

The Code of Judicial Conduct, Canon 3E Disqualification (1), reads, “Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party. . . .” The official commentary states: “Under this rule, judges are subject to disqualification whenever their impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E (1) apply. . . . Judges should disclose on the record information that the court believes the parties or their lawyers might consider relevant to the question of disqualification, even if they believe there is no legal basis for disqualification.” However, the conduct or remarks must raise a legitimate inquiry; otherwise recusal will be denied, because “the remarks [or conduct] of the trial judge did not raise a reasonable question of the judge’s impartiality, within the meaning of Canon 3 [E] (1) of the Code of Judicial Conduct. Von Hoff v. Carmichael, 204 Ga. App. 760, 762 (3) (420 SE2d 643) [(1992)].” (Punctuation omitted.) Pardo v. State, 215 Ga. App. 317, 320 (9) (450 SE2d 440) (1994); see also Chambliss v. Roberson, 164 Ga. App. 579, 580 (1) (298 SE2d 550) (1982).

“[impartiality might reasonably be questioned” means a reasonable perception, of lack of impartiality by the judge, held by a fair minded and impartial person based upon objective fact or reasonable inference; it is not based upon the perception of either interested parties or their lawyer-advocates, seeking to judge shop and to gain a trial advantage, because both of their credibility is suspect from self-interest. King v. State, 246 Ga. 386, 390 (7) (271 SE2d 630) (1980). Recusal on this ground requires a rational basis for such questioning, not an arbitrary basis, even though no “actual impropriety on the part of the trial court judge” has been shown. Id.; accord Birt v. State, 256 Ga. 483, 486 (350 SE2d 241) (1986).

The trial judge, assuming the truth of any facts alleged, must determine the legal sufficiency of the grounds for such perception, whether “a reasonable person might conclude that the judge harbors a bias, stemming from an extra-judicial source, which is of such a nature and intensity that it would impede the exercise of impartial judgment. [Cit.]” Wellons v. State, 266 Ga. 77, 88 (18) (463 SE2d 868) (1995). If the trial judge determines that the motion was timely, that the basis for the perception is a legal basis, and that the motion raises a legitimate fact question of impartiality, then another judge must pass upon the factual issues.

“Any analysis of the necessity for recusal is necessarily fact-bound, requiring an examination of the nature and extent of any business, personal, social or political associations, and an exercise of judgment concerning just how close and how extensive (and how recent) these associations are or have been [to mandate recusal].” Sears v. State, 262 Ga. 805, 806 (426 SE2d 553) (1993).

These above standards were in part adopted from the federal statutes dealing with recusal but were made more flexible by Georgia appellate interpretation. Pope v. State, 257 Ga. 32, 34 (2) (354 SE2d 429) (1987). While the federal system called for automatic recusals in all cases where the affidavit set forth a legal basis for recusal, our Courts have rejected this procedure in favor of procedures adopted from other jurisdictions. State v. Fleming, 245 Ga. 700, 701-703 (1) (267 SE2d 207) (1980); Isaacs v. State, 257 Ga. 126 (355 SE2d 644) (1988).

If the trial judge knows that, for whatever reason, he or she cannot act fairly and impartially to both sides under the facts and circumstances of a case, then such judge is duty bound to recuse himself or herself from that case. A judge should not consider the public unpopularity of the cause or the parties; the convenience to the judge; or personal considerations in making a determination regarding a case. If the alleged grounds for sua sponte recusal are not timely and based upon a legal reason for recusal, then self-recusal is improper. The judge can and should recuse himself or herself “on grounds of personal prejudice and bias.” State v. Fleming, supra at 702; accord Birt v. State, supra at 485. In a self-recusal, the trial court judge should go through the same steps of analysis as if the motion had been made in writing.

Keeping the above in mind, it is clear that the defendant herein seeks to use his own misconduct, in engaging in annoying and harassing telephone calls to the judge’s chambers and the judge’s appropriate response thereto, as grounds to compel the judge to recuse herself. Such conduct, if sanctioned by recusal, could lead to blatant misconduct on the part of parties or counsel to intentionally delay trials and to “judge shop” to gain an unconscionable advantage. The trial court, in explaining to the defendant why his jail telephone privileges had been restricted, stated at the sentencing hearing: “That is because you were basically harassing my office by calling us repeatedly from the jail phone. Even when we would tell you that you had an attorney and to please not call us back anymore, you would simply hang up and call back again, and this went on constantly throughout the day. So we had to call the jail to ask them to monitor your phone calls.” Such response was reasonable, and the judge’s comment demonstrates neither bias nor prejudice or what a reasonable person could perceive as such.

In re Crane, 253 Ga. 667 (324 SE2d 443) (1985), is distinguishable both on the law and facts from this case, because in that case the trial judge tried the party for criminal contempt for conduct in the judge’s office and to which the judge was a witness. The Code of Judicial Conduct, Canon 3E (1) (c) (iv), clearly mandates that the judge step down from presiding over a case when the judge is likely to be a real and essential witness and where there is not substantially the same testimony available from another witness. See Mayberry v. Pennsylvania, 400 U. S. 455 (91 SC 499, 27 LE2d 532) (1971); In re Crane, supra at 668; Dowdy v. Palmour, 251 Ga. 135 (304 SE2d 52) (1983); Williams v. State, 250 Ga. 664, 665 (2) (300 SE2d 685) (1983); Jarrard v. State, 163 Ga. App. 99, 101 (3) (292 SE2d 488) (1982); Spruell v. State, 148 Ga. App. 99 (1) (250 SE2d 807) (1978). “ ‘Knowingly,’ ‘knowledge,’ ‘known,’ or ‘knows’ denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.” See Sections 3D (1), 3D (2), and 3E (1). Code of Judicial Conduct: Terminology. However, a party cannot call a trial judge as a witness and cause a recusal, where either: (1) the judge was not an eyewitness; (2) the factual issue is not a legal ground for recusal, although not so ruled by the trial judge; or (3) there exists other available witnesses to prove the facts in issue other than the trial judge. See Canon 3E (1) (c) (iv); USCR 25.6; McMichen v. State, 265 Ga. 598, 607 (13) (458 SE2d 833) (1995). In this case, the defendant was not tried by the trial court for criminal contempt for misconduct before the court. Thus, the trial judge was not subject to being called as a witness at her recusal hearing and certainly could not be recused as a potential witness in this case over which she was presiding, i.e., the motion to withdraw the guilty plea was heard after the recusal motion was denied.

“In order to be disqualifying the alleged bias must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” (Punctuation omitted.) United States v. Grinnell Corp., 384 U. S. 563, 583 (86 SC 1698, 16 LE2d 778) (1966); accord Birt v. State, supra at 486; Carter v. State, 246 Ga. 328, 329 (271 SE2d 475) (1980). The alleged bias of the judge must be “of such a nature and intensity to prevent the defendant from obtaining a trial uninfluenced by the court’s prejudgment.” (Citation and punctuation omitted.) Jones v. State, 247 Ga. 268, 271 (4) (275 SE2d 67) (1981); accord Birt v. State, supra at 486; see also In re Phillips, 225 Ga. App. 478 (484 SE2d 254) (1997); In re Shafer, 215 Ga. App. 520 (451 SE2d 121) (1994).

The fact that the judge has sat on prior cases of the party or ruled on prior matters in the case before the judge is legally insufficient as a grounds for recusal. Collier v. Evans, 205 Ga. App. 764, 765 (423 SE2d 704) (1992); Penney v. State, 157 Ga. App. 737 (1), 738 (278 SE2d 460) (1981).

Even when the defendant sued the trial judge, arising out of the case before the judge, such suit did not provide grounds for recusal; otherwise, parties could file frivolous suits against the trial judge for delay and to judge shop. Mapp v. State, 204 Ga. App. 647, 649 (4) (420 SE2d 615) (1992). “Prejudice, bias or prejudgment or even an exhibition of partisan feeling, when not arising from the statutory grounds, is ordinarily not assignable as a ground [for] disqualification.” (Citation and punctuation omitted.) Moon v. State, 154 Ga. App. 312, 314 (4) (268 SE2d 366) (1980); accord Brannen v. Prince, 204 Ga. App. 866, 868 (3) (421 SE2d 76) (1992).

As recently as Ga. L. 1993, p. 981, the General Assembly amended OCGA § 15-1-8, which statutorily established the grounds for judicial recusal, as opposed to the procedure and interpretation provided by case law. “OCGA § 15-1-8 pertinently provides that a judge shall not sit in any case in which he has a pecuniary interest, a familial relationship with a party, or in any case in which he previously served as counsel or judge. The grounds for recusal in OCGA § 15-1-8 are exclusive and exhaustive, and courts may not add other grounds of disqualification to those stated in the statute. (Cits.) Johnson v. State, 208 Ga. App. 453, 454 (430 SE2d 821) (1993). None of these circumstances is applicable in the instant case.” (Punctuation omitted.) Bevil v. State, 220 Ga. App. 1, 3 (6) (467 SE2d 586) (1996); accord Daniel v. Yow, 226 Ga. 544, 546 (2) (176 SE2d 67) (1970); Stevenson v. Stevenson, 222 Ga. 47, 50 (3) (148 SE2d 388) (1966); Blakeman v. Harwell, 198 Ga. 165, 170-173 (1) (31 SE2d 50) (1944); Mapp v. State, supra at 649. Since none of these circumstances is applicable herein, there was no error.

2. Defendant next alleges that he was denied fundamental due process of law when the trial judge, pursuant to defense motion, did not recuse herself from presiding over defendant’s motion to withdraw his guilty plea. Neither due process rights, nor any other rights of defendant, were violated by the trial judge in denying the motion to recuse as untimely made, which was done prior to ruling on the motion to recuse.

The defendant was aware of his own conduct in relationship to the trial judge and the staff of the judge, regarding the numerous telephone calls he made to the judge’s chambers from the jail. Further, the trial court mentioned on the record such conduct of the defendant in the plea hearing on November 4, 1996. In addition, under USCR 25.1, there is no provision for any discovery to find a basis for recusal, because the movant for recusal is supposed to have all the evidence of the grounds at the time the motion is filed to prevent such motion from being a tool for delay, and the trial court is to rule on the motion immediately. A motion to recuse places the case in limbo until the motion has been decided and discovery would only prolong such delay. “All motions . . . shall be timely filed in writing and all evidence thereon shall be presented by accompanying affidavit(s) which shall fully assert the facts upon which the motion is founded.” (Emphasis supplied.) USCR 25.1. Further, when a motion to recuse is filed, the trial judge shall immediately determine: (1) the timeliness of the motion; (2) the legal sufficiency of the affidavit; and (3) the legal sufficiency of the grounds, and has no power to do anything else in the case. See Birt v. State, supra at 484; State v. Fleming, supra at 702; Stephens v. Ivey, 212 Ga. App. 407 (2), 408 (442 SE2d 248) (1994); Houston v. Cavanagh, 199 Ga. App. 387, 388 (405 SE2d 105) (1991); Penney v. State, supra at 738.

Moreover, USCR 25.1 reads: “Filing and presentation to the judge shall be not later than five (5) days after the affiant first learned of the alleged grounds for disqualification, and not later than ten (10) days prior to the hearing or trial which is the subject of recusal or disqualification, unless good cause be shown for failure to meet such time requirements. In no event shall the motion be allowed to delay the trial or proceeding.”

The plea was entered on November 4, 1996. The motion to withdraw the guilty plea was filed on December 17, 1996. The motion to recuse was filed on January 7, 1997, and the motion states that the transcript of the plea hearing was available to the defendant on December 17, 1996. Thus, even if the defendant did not tell defense counsel of the grounds of defendant’s conduct or what the judge stated at the plea hearing on November 4, 1996, defense counsel knew or should have known of the grounds no later than December 17, 1996. On January 22, 1997, the trial court ruled that the motion to recuse was not timely. The motion to recuse was, in fact, untimely, and there was no error in denying such. See Wellons v. State, supra at 88-89; Pope v. State, supra at 34-36; Birt v. State, supra at 484; Birt v. State, 255 Ga. 693 (342 SE2d 303) (1986); Hunnicutt v. Hunnicutt, 248 Ga. 516, 518-519 (1) (283 SE2d 891) (1981); Stephens v. Ivey, supra at 408.

3. The third enumeration of error is that the defendant’s request to withdraw his guilty plea should have been granted, because the guilty plea was not freely and voluntarily given since the plea was a result of judicial coercion and ineffective assistance of trial counsel. The trial court did not err in denying the motion to withdraw the guilty plea.

This case does not come within Skomer v. State, 183 Ga. App. 308, 309-310 (358 SE2d 886) (1987), because the trial court did not participate in the plea negotiations, although the trial court was made aware of the position of each party. Properly, the trial court refused to prejudge the case by stating what sentence would be imposed if the defendant rejected the plea, went to trial, and was convicted, because the sentence would depend upon the evidence presented at the trial and sentencing, either aggravating or mitigating.

The defendant, against the advice of counsel, argued his case to the judge at length prior to entering a guilty plea. Defense counsel told the defendant in open court that he had a right to trial by jury and should follow such course. The trial court told the defendant that if he were to plead guilty that the sentence would be 15 years to serve, but he could go to trial that day and she would not prejudge the sentence. The defendant entered a guilty plea of his own volition.

After defendant entered his guilty plea, the record shows that the trial judge gave the defendant notice of his constitutional rights and that an adequate factual basis existed in order to determine that a crime had been committed. Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969); State v. Evans, 265 Ga. 332 (454 SE2d 468) (1995); Green v. State, 265 Ga. 263 (454 SE2d 466) (1995); Bre-land v. Smith, 247 Ga. 690 (279 SE2d 204) (1981); Minchey v. State, 155 Ga. App. 632 (1) (271 SE2d 885) (1980). The defendant entered the guilty plea freely, knowingly, and voluntarily. Strickland v. State, 199 Ga. 792 (35 SE2d 463) (1945).

Further, the defendant failed to satisfy the two-part test of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), to show that trial counsel’s conduct fell below a reasonable standard of care or that there was a reasonable probability that, but for counsel’s alleged error, defendant would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U. S. 52 (106 SC 366, 88 LE2d 203) (1985); accord Tarwater v. State, 259 Ga. 516, 518 (383 SE2d 883) (1989); see also Thompson v. Greene, 265 Ga. 782, 784-785 (2) (462 SE2d 747) (1995); McCants v. State, 222 Ga. App. 75, 77-78 (1), (2) (473 SE2d 514) (1996); Minchey v. State, supra at 633-634. The defendant failed to establish the ineffective assistance.

Decided November 18, 1997

Reconsideration denied December 5, 1997

Dwight L. Thomas, for appellant.

J. Tom Morgan, District Attorney, Gregory J. Lohmeier, Melissa L. Himes, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       Over the ensuing months, the defendant resisted arrest, fled, and escaped from custody. He maintained multiple identities with false papers and passports.

       In 1987 the defendant had been indicted in Cobb County for kidnapping a different victim that he shot; however, when the case was called for trial, the victim in that case did not appear; the Cobb district attorney dismissed the kidnapping charge and agreed to a probated sentence on the aggravated assault charge, as a result. In fleeing to Canada on this charge, defendant also violated probation on the Cobb County aggravated assault conviction. The existence of such prior felony conviction and the probation violation of it are important as factors that the trial judge would have considered in imposing sentence in this case as well as in defendant’s knowledge regarding the entering of a plea for purposes of the motion to withdraw the plea in this case.

       If such is not the case and there is a question of the legal sufficiency of the affidavit, timeliness, or the legal sufficiency of the grounds for recusal, then the judge must balance the question of perception of impartiality, as it may affect public confidence in a fair and impartial judiciary, against the judge’s duties and responsibilities as a judge: (1) the orderly, efficient, and timely administration of all cases, i.e., to avoid or to reduce the back log of cases assigned; (2) the burden imposed by voluntary recusal on the work load of other judges; and (3) the duty owed to all parties to perform the duties of office, which may be harmed by delay. Thus, the judge must exercise discretion in deciding to voluntarily recuse one’s self from a case absent a proper motion to recuse.
      “[It is also a] well-settled rule that it is as much the duty of a judge not to grant the motion to recuse when the motion is legally insufficient as it is to recuse when the motion is meritorious; nor does the simple filing of an affidavit automatically disqualify a judge. United States v. Bray, 546 F2d 851, 857 (10th Cir. 1976).” (Emphasis supplied.) State v. Fleming, 245 Ga. 700, 702 (267 SE2d 207) (1980); accord Collier v. Evans, 205 Ga. App. 764, 765 (1) (423 SE2d 704) (1992). Such considerations, when a motion has been made by a party, are equally applicable when the judge must decide upon a voluntary recusal.

       Even if the movant for recusal seeks to call the judge to testify regarding the grounds for recusal, the judge selected to hear the recusal motion must first, in the exercise of discretion, decide to hear evidence and grant leave to call the judge as a witness at the hearing. USCR 25.6. If the judge hearing the recusal motion determines that the trial judge should not be recused, then being called as a witness at such recusal hearing would not automatically require recusal from subsequent proceedings in such case by such trial judge. The judge hearing the motion to recuse should exercise extreme caution in permitting the trial judge, against whom the motion has been brought, to be called as a witness, because the very process of examination or cross-examination of the judge may be such as to cause the perception of prejudice or cause the judge to “become so involved in a controversy that his [or her] objectivity could reasonably be questioned” by the treatment by movant’s counsel intentionally. Isaacs v. State, supra at 128. While the motion may be without legal grounds, the hearing process may through indirection achieve what the movant could not achieve directly. Where there is no other available witness as to the subject of inquiry and the subject of inquiry is relevant and material to the motion and does not invade the privileged thought processes of the judge in reaching prior rulings should the hearing judge permit the trial judge to be examined; then, only the hearing judge can protect the trial judge from being abused as a witness.