text:
    A98A1704.
    ADORNO v. THE STATE.
    (512 SE2d 703)
   Ruffin, Judge.

A jury found Orlando Adorno guilty of trafficking in cocaine. Adorno appeals, asserting that the evidence was not sufficient to sustain the jury’s verdict. In addition, Adorno contends that the trial court erred in failing to give his requested jury charge on a lesser included offense; in denying his motion for mistrial following improper juror contact by a bailiff; and in denying his motion for severance. For reasons which follow, we affirm.

1. In his first enumeration of error, Adorno challenges the sufficiency of the evidence. “On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” (Punctuation omitted.) Kelley v. State, 233 Ga. App. 244 (503 SE2d 881) (1998).

So viewed, the evidence establishes that on December 5, 1996, the DeKalb County Narcotics Division set up a drug deal through a confidential informant. A surveillance team went to the house where the suspected dealers lived to wait for one of the suspects to leave the house with the drugs. A woman named Rodriguez left the house driving a black Honda Prelude. When Rodriguez failed to stop at a stop sign, she was pulled over and was arrested for driving with a suspended license. After the officer arrested Rodriguez, a female officer found the cocaine she had concealed in her bra.

As soon as the police had taken the drugs from Rodriguez, another detective went to a judge to obtain a search warrant for the house Rodriguez had just left. While waiting for the officer to return with the search warrant, two other police officers waiting outside the house saw Adorno come out of the back door carrying several plastic grocery bags: After the officers identified themselves, Adorno began running. One of the officers chased Adorno down a ravine and tackled him. Several officers testified that as Adorno fell, a bag of cocaine and bundles of cash spilled out of the plastic bags. A forensic chemist testified that the cocaine was divided into three samples weighing 849.9 grams, 530 grams and 59 grams. Two tests were performed on the 849.9 gram sample, revealing that it was 88 percent pure cocaine. According to one of the officers, the money recovered from Adorno amounted to “a little less than $55,000.”

A person is guilty of trafficking in cocaine when he is knowingly in possession of twenty-eight grams or more of cocaine or any mixture with a purity of ten percent or more of cocaine. OCGA § 16-13-31 (a) (1). If the quantity of cocaine or the mixture involved is 400 grams or more, the person shall be sentenced to a minimum sentence of 25 years and shall pay a fine of $1 million. OCGA § 16-13-31 (a) (1) (c). In light of the evidence presented that Adorno was caught with at least 849.9 grams of cocaine with a purity of 88 percent, the jury was authorized to conclude that he was trafficking in cocaine. See Milton v. State, 232 Ga. App. 672, 673 (1) (503 SE2d 566) (1998).

Adorno argues that the evidence is insufficient to sustain his conviction for trafficking because the expert witness from the crime lab admittedly did not test the entire 849.9 gram sample of cocaine for purity. However, a similar argument was made and rejected in Covington v. State, 226 Ga. App. 484 (486 SE2d 706) (1997), in which the defendant challenged his trafficking conviction based upon the fact that the expert witness did not test the entire sample, but rather tested representative pieces in reaching his conclusion that the cocaine was 32 percent pure. This Court concluded that the evidence was sufficient to convict for trafficking. Id. at 485 (2). Likewise, in this case, the chemist “took a little . . . from several of the pieces [of cocaine] and mixed them together” before testing for purity. Furthermore, the expert testified that she tested enough of the individual pieces of cocaine to add up to 400 grams. Thus, as in Covington, we find the evidence sufficient to sustain Adorno’s conviction.

2. Adorno asserts that the trial court erred in failing to grant a mistrial after a deputy sheriff improperly communicated with the jurors. During a lunch break, four jurors were riding in an elevator along with a deputy sheriff and Adorno’s attorney. The deputy, who was not a part of Adorno’s trial, asked the jurors if they were coming from Judge Mallis’ courtroom and described the case as a “bunch of trouble.” The deputy also asked if that was “the drug case” and if it involved “the married couple.” The jurors acknowledged it was a drug case, but said the couple’s marital status had not been addressed. The defense attorney reported the incident and moved for a mistrial.

The judge called the deputy into the courtroom, questioned him regarding the content of the conversation, and chastised him for discussing an ongoing trial with jurors. The judge denied the motion for mistrial, but instructed the jurors that the deputy’s statements were not evidence and that the jury was to disregard anything he said. Adorno did not renew his motion for mistrial after the judge gave the corrective instruction. By failing to do so, Adorno has failed to preserve the issue for appellate review. Jones v. State, 221 Ga. App. 374, 375 (2) (471 SE2d 318) (1996); Kraus v. State, 161 Ga. App. 739, 740 (1) (289 SE2d 555) (1982).

Even if Adorno had preserved this issue for appeal, reversal would not be required. It is well established that “where such an improper communication occurs, there is a presumption of harm and the burden is on the State to show the lack thereof. However, where the substance of the communication is established without contradiction, the facts themselves may establish the lack of prejudice or harm to the defendant. In our opinion, such is the situation here.” (Citations omitted.) Jones v. State, 258 Ga. 96-97 (366 SE2d 144) (1988); see also Sims v. State, 266 Ga. 417, 419 (3) (467 SE2d 574) (1996).

Here, the trial court questioned both Adorno’s attorney and the deputy before concluding that the improper communication was not “sufficiently prejudicial” to warrant a mistrial. Although Adorno contends that he was prejudiced by the suggestion that he was married to Rodriguez, the trial court noted that this suggestion had already been made during voir dire. Furthermore, in giving its curative instruction, the trial court minimized any harm caused by the deputy’s comments by informing the jurors that the comments were not evidence. Under these circumstances, we agree that “the error was not so prejudicial as to have contributed to the conviction. We are satisfied that the [deputy’s and] juror[s’] actions were harmless beyond a reasonable doubt.” (Citation omitted.) Sims, supra at 420 (3).

3. Adorno argues that the trial court erred in denying his motion for severance. Adorno and Rodriguez were tried together on the cocaine trafficking charge. Prior to trial, Rodriguez made a statement to police in which she implicated Adorno. To prevent the statement from being used against Adorno, the State redacted the statement so that any reference to Adorno was changed to “another person,” and the trial court admitted the statement.

In ruling on a motion for severance, the decision of the trial court will not be disturbed absent an abuse of discretion. Baker v. State, 238 Ga. 389, 391 (2) (233 SE2d 347) (1977). “The burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process. In exercising its discretion, the court must consider three factors: (1) Whether a joint trial will create confusion of evidence and law; (2) whether there is danger that evidence implicating one defendant will be considered against the other, despite cautionary instructions to the contrary; and (3) whether the co-defendants will press antagonistic defenses.” (Citations omitted.) Dennard v. State, 263 Ga. 453, 455 (5) (435 SE2d 26) (1993).

“This case involved only two defendants. The trial court instructed the jury to consider the guilt or innocence of each defendant separately, and the jury acquitted [Adorno’s] co-defendant. Therefore, we find no danger that the number of defendants was so great as to cause confusion of the evidence and the law. Although a custodial statement [Rodriguez] made was introduced at trial, the trial court cautioned the jury to consider that statement only against [Rodriguez].” (Citations omitted.) Skidmore v. State, 226 Ga. App. 130 (1) (485 SE2d 540) (1997). Moreover, antagonistic defenses alone do not require severance. Davis v. State, 266 Ga. 801, 802 (3) (471 SE2d 191) (1996). Rather, Adorno must show harm. Id.

Adorno contends that severance was warranted, claiming he was harmed by the admission of Rodriguez’s statement at their joint trial in violation of Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). Pretermitting the question of whether Rodriguez’s statement was inadmissible under Bruton (an issue which Adorno does not raise on appeal), the trial court did not abuse its discretion in refusing to sever the trial. The State did not base its case against Adorno upon Rodriguez’s statement. To the contrary, the case against Adorno was based on the fact that the police caught him carrying well over 800 grams of cocaine. Accordingly, Adorno is unable to show harm by the introduction of Rodriguez’s statement. See Guimond v. State, 259 Ga. 752, 755 (3) (386 SE2d 158) (1989); Hanifa v. State, 269 Ga. 797, 805 (4) (505 SE2d 731) (1998).

Even if the trial court erred in admitting Rodriguez’s statement, the error does not require reversal. See Mathis v. State, 231 Ga. 401, 403 (2) (202 SE2d 73) (1973). Where overwhelming evidence of a defendant’s guilt exists apart from the statement of the co-defendant, then any violation of Bruton is harmless beyond a reasonable doubt. Bell v. State, 239 Ga. 146, 149 (1) (236 SE2d 47) (1977). Thus, the trial court did not abuse its discretion in refusing to sever the trial. See Mathis, supra.

Decided February 22, 1999.

Taylor & Viers, Richard T. Taylor, Cruz & Associates, Daniel J. Castan, for appellant.

J. Tom Morgan, District Attorney, Keith A. Carnesale, Noah H. Pines, Assistant District Attorneys, for appellee.

4. Finally, Adorno contends the trial court erred in failing to charge the jury on the lesser included offense of possession of cocaine. “[A] written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) (1990). The corollary to this rule is that “where the State’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” Howard v. State, 220 Ga. App. 579, 582 (2) (469 SE2d 746) (1996).

In Howard, this Court held that simple possession of cocaine is a lesser included offense, as a matter of fact, in the greater offense of cocaine trafficking. Id. at 583. Thus, the trial court erred in failing to charge the jury on simple possession. In this case, however, it is highly unlikely that the error contributed to the verdict in view of the fact that Adorno was caught carrying 849.9 grams of cocaine, which clearly constitutes trafficking. Therefore, reversal is not required. See id.; Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994); Cook v. State, 226 Ga. App. 113, 115 (2) (485 SE2d 595) (1997).

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Beasley, R J., concurs in Divisions 1, 2, and 4 and in the judgment.


source: Caselaw Access Project

author: Beasley, Presiding Judge.

license: Public Domain

text:
    A98A2282.
    TURNER v. THE STATE.
    (512 SE2d 699)
   Beasley, Presiding Judge.

Turner appeals his convictions of speeding (OCGA § 40-6-183) and attempting to elude a police officer (OCGA § 40-6-395).

The arresting officer Attaway testified as follows. At approximately 11:30 p.m. on May 24, 1997, he was proceeding in his patrol car along a parkway when he observed a white Toyota Paseo traveling in the opposite direction at a much faster rate of speed than other vehicles a considerable distance behind it. Because Attaway was of the opinion that the Paseo was exceeding the posted speed limit (45 mph), he activated his radar, captured the Paseo as the "only vehicle in the radar beam,” and clocked it at 66 mph.

According to the officer, when the Paseo was approximately 75 feet from his patrol car, Attaway turned on his blue lights and siren, made a U-turn, and pursued. He observed the Paseo turn left into the parking lot of a complex comprised of one long metal building separated into compartments, each housing a garage, body shop or other business of that nature. As Attaway continued his pursuit, the operator of the Paseo accelerated through the lot to one of the businesses in the rear of the complex and parked behind a larger truck so as to conceal the car from view. When Attaway turned into the lot, the Paseo was approximately 50 feet ahead of him and proceeded another 100 feet before stopping. At no point did the driver of the Paseo make any effort to stop.

Attaway further testified that although he could not see inside the Paseo as its windows were tinted, the vehicle was out of his view for no more than five seconds. The entire episode, from first sighting to the Paseo’s stop, consumed less than two minutes. He observed three individuals on the grounds: Clinton Francis, who was working with a power tool in front of the business where Turner parked; an unidentified man also working with a power tool at a business toward the entrance of the lot; and Turner. As Attaway drove up, he observed Turner climbing out of the Paseo on the passenger side with his feet on the ground. When questioned by Attaway, Turner admitted that the Paseo belonged to him. He denied having been driving it but failed to identify anyone else who had. After Attaway inspected the premises, he determined that no one who had been driving the vehicle could have escaped the area without being observed by him.

In Turner’s defense, Francis testified that on the evening in question Turner had taken his Paseo to him for repair and that another mechanic named Franklin Richard had been test-driving the vehicle and had parked it several minutes before the officer appeared. According to Francis, when Attaway drove up, Turner had just come from inside the shop and was retrieving an item from his car. Francis did not tell any of this to officers on the scene, and at trial he claimed that Richard’s whereabouts were unknown. In his testimony, Turner similarly denied having been driving his car at the time and claimed that, when observed by Attaway, he was leaning into his car to get a pack of cigarettes.

The videocamera in Attaway’s patrol car was activated at the time the events transpired but failed to record the entire episode either visually or audibly. The videotape was played to the jury.

After deliberating for a considerable period of time, the jury reported that it was unable to reach a verdict. Upon giving an Allen charge and ascertaining that the numerical division in the jury vote was four and two, the court ordered deliberations to continue. Shortly thereafter, the jury returned to the courtroom to request additional instructions on reasonable doubt. After instructions and further deliberations, the jury found Turner guilty of both charged offenses.

1. Turner first contends that the evidence was insufficient to establish his guilt of either offense.

OCGA § 40-6-395 (a) makes it unlawful “for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop.”

Our viewing of the videotape indicates that the Paseo disappeared from the officer’s view as he was completing his U-turn and had already come to a stop by the time the officer made his left turn into the complex. Nonetheless, the jury was authorized to find on the basis of the officer’s testimony that Turner was the driver of the Paseo and that he attempted to elude the pursuing police officer through his actions and denials after he brought his vehicle to a stop. Construed in a light most favorable to the verdict, the evidence authorized any rational trier of fact to conclude that Turner was guilty of this offense.

Turner’s similar challenge to the speeding conviction is based on the fact that the State did not lay a foundation for admission of the evidence of speed gained through use of a radar detection device, by establishing compliance with conditions of admissibility imposed by the General Assembly. But a defendant cannot contest the admissibility of radar results for this reason where, as here, he has not raised such objection at trial. Because the court was not called on to exclude the evidence, it was not error to admit the radar results which, in conjunction with the opinion testimony of the officer, authorized the jury to find Turner guilty of speeding.

2. Turner next contends that the court erred in admitting testimony from Attaway that was contradicted by a statement made by him in the videotape played to the jury. Turner charges Attaway with perjury and the State with failure to comply with his pretrial motion for disclosure of favorable information under Brady v. Maryland.

Since the videotape was admittedly turned over to the defense prior to trial and played to the jury at trial, Brady was not violated. Turner’s failure to raise any objections to Attaway’s testimony at trial precludes him from complaining of the admission of Attaway’s testimony on appeal. Nonetheless, we note that Turner’s complaint arises from the fact that Attaway stated in the videotape that Turner was “going inside the car,” whereas he testified on direct examination that he observed Turner “climbing out of the passenger side of the vehicle.” But he acknowledged during cross-examination that Turner’s feet were on the ground at the time and that it could be said that he was “leaning in the car.” The jury was competent to reconcile any conflict between the officer’s statements at the scene and his trial testimony without finding perjury.

3. Finally, Turner asserts a claim of ineffective assistance of trial counsel.

After trial Turner retained a private lawyer to replace his appointed trial attorney. Hired counsel filed a motion for new trial primarily on the general grounds, but he was replaced by yet another privately retained attorney who raised the claim of ineffective assistance of trial counsel in an amendment to Turner’s motion for new trial. The amendment was filed on the same day an unreported hearing was held on the motion. At the hearing, arguments of counsel were heard, but no evidence was presented. The court later entered an order denying the amended motion without elaboration.

“Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), sets forth the standard for determining whether trial counsel’s performance was so deficient as to deny a defendant effective assistance of counsel under the Sixth Amendment. One asserting such an error must make two affirmative showings: that counsel’s representation fell below an objective standard of reasonableness [(i.e., that counsel performed deficiently);] and that such deficiency prejudiced the defense. Concerning the prejudice component, the Court (in Strickland) held that the defendant must show that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” “‘A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.’ [Cit.]” .

Decided February 22, 1999.

Belcher, Pakchar & Sams, Pat E. Belcher II, for appellant.

Turner claims that defense counsel was ineffective in numerous respects. First is that counsel should have objected when Attaway repeatedly testified that he had observed Turner driving the car, because Attaway acknowledged he could not see inside the Paseo’s tinted windows. But the officer’s observations after the Paseo was brought to a stop authorized him to conclude that Turner was the driver. Objection to his testimony would have been futile.

Turner also contends that since the State failed to lay a foundation for admission of the radar results, counsel was ineffective in failing to object. The impediment to Turner’s success on this claim consists of his failure to have defense counsel testify at the hearing on his amended motion for new trial. “There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic.” Defense counsel could have conducted an investigation and determined that the radar results were admissible and that any objection would ultimately have been rightly overruled. The court’s implicit finding that counsel was not ineffective in this regard is not clearly erroneous.

Turner’s remaining claims of ineffectiveness provide no grounds for relief as he has not shown he was prejudiced by any other omission charged to counsel.

Judgment affirmed.

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

Keith C. Martin, Solicitor, Aaron B. Mason, Assistant Solicitor, for appellee.

        Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       See Wiggins v. State, 249 Ga. 302, 304 (2) (290 SE2d 427) (1982) (setting forth the conditions).

        Carver v. State, 208 Ga. App. 405 (1) (430 SE2d 790) (1993).

       See Hixson v. Barrow, 135 Ga. App. 519, 522 (2) (218 SE2d 253) (1975) (opinion testimony of an eyewitness is sufficient to authorize a jury to conclude that the speeding laws have been violated).

       373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

       See Dennard v. State, 263 Ga. 453, 454 (4) (435 SE2d 26) (1993) (Brady not violated where Brady material is available to defendant during trial); compare Williams v. State, 250 Ga. 463, 465 (298 SE2d 492) (1983) (Brady violated where officer gave testimony contradicted by part of a police report not disclosed to defense).

       See generally O’Donnell v. State, 258 Ga. 782, 785 (6) (374 SE2d 729) (1989); compare Mondy v. State, 229 Ga. App. 311 (494 SE2d 176) (1997) (although Brady violation was waived because defendant was made aware of existence of videotape during trial and did not seek to have it reviewed, this did not waive State’s knowing use of testimony shown by videotape to have been false).

       Although express findings are not required when a claim of ineffective assistance of counsel is denied, they aid the appellate court’s resolution of the issue.

       (Citations and punctuation omitted.) Williams v. State, 207 Ga. App. 418, 419-420 (427 SE2d 787) (1993); Benefield v. State, 231 Ga. App. 80 (497 SE2d 650) (1998).

       Id.

       (Punctuation omitted.) Binion v. State, 222 Ga. App. 333, 334 (1) (474 SE2d 208) (1996).


author: Smith, Judge.

text:
    A98A2325.
    STANFORD v. THE STATE.
    (512 SE2d 708)
   Smith, Judge.

Jerome Stanford was convicted of arson in the first degree. His motion for new trial as amended was denied. Stanford appeals, enumerating as error the sufficiency of the evidence and a portion of the trial court’s charge to the jury. We find no error and affirm.

1. Construed to uphold the jury’s verdict, evidence was presented that LaKesha Weaver’s apartment burned on May 13, 1996. Shortly after the fire was extinguished, Lieutenant Robert Walker, an arson investigator, determined that the fire was intentionally caused. He testified that all four burners on the kitchen stove had been turned on and a combustible material placed on top. It did not appear to Walker that anyone had attempted to cook on the stove, and no pots or pans had been placed on it. Before Walker entered the apartment to investigate the fire, he saw Stanford standing outside the building. Stanford explained to Walker that he had been staying nearby with another female, Washington. Although disputed by Weaver at trial, Walker testified that Weaver stated to him that Stanford had told her “he started the fire by turning the stove on.” Weaver also provided a written statement that Stanford had told her he started the fire.

We also note the testimony of Washington, the female friend with whom Stanford was visiting on the night of the fire, that he left her apartment but returned shortly after the fire began. She testified that she saw Stanford outside her window running toward her apartment, and when he entered her apartment, he appeared excited. She stated that Stanford “was acting a little strange then, maybe because he was nervous.” Stanford told Washington that Weaver’s house was on fire and used her telephone to call Weaver’s mother to report the fire to her.

Under OCGA § 16-7-60 (a) (1), an individual commits the offense of arson in the first degree, when he or she knowingly damages by fire “[a]ny dwelling house of another without his consent . . . whether it is occupied, unoccupied, or vacant.” Stanford contends that because the indictment charged that he damaged “the property of the Columbus housing authority occupied by LaKesha Weaver,” the State was required to introduce evidence that the building was indeed owned by the housing authority. But evidence showing that the damaged property was owned by the housing authority was not necessarily required. “[L] awful occupancy by one in charge constitutes ownership as contemplated by the [arson] statute . . ., and the question of legal title is not involved.” (Citations and punctuation omitted.) Hufstetler v. State, 171 Ga. App. 106, 109 (6) (319 SE2d 869) (1984). Thus, the “ownership” of the dwelling by the housing authority “was an unnecessarily minute description of an unnecessary fact alleged in the indictment and need not have been proved.” Id.

Some evidence of Weaver’s occupancy was shown. It is true that Weaver acknowledged on cross-examination that at the time of the fire, she had basically moved out of the apartment and had removed many of her belongings, and that Stanford was planning to live in the apartment while she and he “worked on getting back together.” But she also testified that some of her possessions remained inside the apartment, including her child’s winter coat and some toys, and that after the fire, she returned to the apartment to find Stanford “walking through my back door.” (Emphasis supplied.) In addition, Stanford testified that Weaver and her children were “going to be coming over [to the apartment] and staying.” Some evidence of Weaver’s occupancy was thus presented authorizing a rational trier of fact to find Stanford guilty of arson under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Stanford also contends the trial court erroneously charged the law applicable to first degree arson. The indictment charged him with unlawfully and knowingly damaging by fire a dwelling house without consent of the owner. See OCGA § 16-7-60 (a) (1). In its initial charge to the jury, however, the court charged OCGA § 16-7-60 (a) (5), which defines first degree arson as knowingly damaging by fire a dwelling “or other structure under such circumstances that it is reasonably foreseeable that human life might be endangered.” At the conclusion of the charge, the State pointed out that the court should have charged on subsection (a) (1) as well and noted that they had “talked about that ahead of time.” Defense counsel responded that although he “would have preferred one over the other,” the subsection the court read to the jury was sufficient. He also stated that he “wouldn’t want to bring [the jury] back and confuse them.” Additionally, defense counsel stated that he “would have argued one or the other and you’ve given one of the two and that’s sufficient. I think it would just cause more confusion on the jury’s part to come back and recharge them with an additional piece of law.” The court then recharged the jury, reading both subsections (a) (1) and (5).

Stanford argues that it is reversible error to charge an entire Code section “if a reasonable possibility exists that the jury may convict the defendant of committing the crime in a way not alleged in the indictment.” Perguson v. State, 221 Ga. App. 212, 213 (1) (470 SE2d 909) (1996). We agree with Stanford that the charge was error. As in Hunley v. State, 227 Ga. App. 234, 235 (488 SE2d 716) (1997), at least a “modicum” of evidence was presented from which it could be inferred that the jury convicted Stanford of commission of a crime in a manner not charged in the indictment. Evidence was presented from which the jury could have concluded that Stanford knowingly damaged by fire a structure “under such circumstances that it is reasonably foreseeable that human life might be endangered,” OCGA § 16-7-60 (a) (5), as the fire was started in an apartment building.

Decided February 22, 1999.

William J. Mason, for appellant.

But also as in Hunley, under the “limited circumstances of this case,” id. at 235, we conclude that reversal is not warranted, for Stanford acquiesced in the error.

During the charge conference, defense counsel requested that the trial court “[j]ust read the Code section on 16-7-60,1 believe and then the part 4 would be appropriate. We don’t need the second and third degree.” And as discussed above, when the State argued that the court should have charged subsection (a) (1) in addition to subsection (a) (5), defense counsel did express some reservation about the possibility of juror confusion if the jury were recharged, but he also stated that subsection (a) (5) was sufficient. As argued by the State, “[i]f it had been left to [Stanford’s] counsel (a) (5) would have been the only subsection charged to the jury.” Under these facts, because defense counsel actively participated in the framing of the charge and approved the portion of the charge now complained of, we conclude that Stanford acquiesced in the charge as given by the trial court. He therefore cannot complain on appeal that the trial judge included subsection (a) (5) in its corrected charge. See generally Garner v. State, 267 Ga. 884, 885 (2) (485 SE2d 729) (1997); Boone v. State, 229 Ga. App. 379, 381 (4) (494 SE2d 100) (1997).

Judgment affirmed.

Johnson, C. J., and Barnes, J., concur.

J. Gray Conger, District Attorney, Neal J. Callahan, Assistant District Attorney, for appellee.

       Stanford is the father of one of Weaver’s children.

       It appears that in referring to “Part 4,” defense counsel was referring to the burden on the State in arson cases and the presumption that every fire is accidentally or naturally caused, as set out in the pattern jury instructions on arson approved by the Council of Superior Court Judges of Georgia. See Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 98 (2nd ed.).


author: Johnson, Chief Judge.

text:
    A98A2335.
    LYNN v. THE STATE.
    (512 SE2d 695)
   Johnson, Chief Judge.

On February 3, 1998, Vicky Zelenne Lynn was charged by accusation with one count each of criminal trespass, shoplifting, and being a habitual felon. Lynn was released on bond after her arrest. She entered a plea of not guilty on all charges. The state filed notice of intent to introduce prior convictions for sentencing purposes. Lynn then changed her plea to guilty of shoplifting but continued to plead not guilty as to the remaining charges. The trial court accepted her amended guilty plea and allowed her to litigate whether the shoplifting offense was a felony or a misdemeanor, which involved the question of her previous shoplifting convictions.

In a bench trial, Lynn was convicted of the shoplifting and habitual felon charges; the court granted a motion to nolle prosequi the criminal trespass charge.

At the sentencing hearing, the state introduced evidence of three prior shoplifting convictions. The trial court sentenced Lynn to confinement for ten years with service of the last five years on probation, a $1,000 fine, and 200 hours of community service. She also was ordered to pay a $20 per month probation fee, $100 to the county jail fund, and $50 each to the victim assistance program and the police officers and prosecutors training fund.

Lynn filed a motion to modify or correct sentence. The trial court denied the motion. Lynn appeals.

1. Lynn contends that this case should be remanded for imposition of misdemeanor punishment because the state proceeded to trial by accusation rather than by indictment. We disagree.

In the case of Hood v. State, 223 Ga. App. 573 (479 SE2d 400) (1996), this Court rejected a claim that the state’s use of an accusation rather than a grand jury indictment precluded the trial court from sentencing the defendant as a felon. We held that “[i]n enacting OCGA § 17-7-70.1, the legislature authorized the use of accusations rather than grand jury indictments for certain enumerated felonies, including OCGA § 16-8-14, the theft by shoplifting statute. [Cit.]” Id. The state may proceed to trial upon accusation without obtaining a waiver of indictment. Id.; see Lamberson v. State, 265 Ga. 764 (1) (462 SE2d 706) (1995). The filing of an accusation is merely a preliminary proceeding and cannot result in a final judgment, except as a consequence of a regular judicial trial that is conducted precisely as in cases where the defendant was indicted. See id. at 766. The trial court was not required to sentence Lynn as a misdemeanant simply because the state utilized an accusation rather than an indictment. See Hood, supra.

On the date the accusation was filed, OCGA § 17-7-70.1 (a) provided, inter alia, that in felony cases involving theft by shoplifting, in which defendants either have been bound over to the superior court or have expressly waived a commitment hearing, the district attorney shall have authority to prefer accusations, and the defendant shall be tried on such accusations according to the same rules of substantive and procedural laws relating to defendants who have been indicted by a grand jury.

On December 11, 1997, Lynn posted bond on the shoplifting and criminal trespass counts. In State v. Gilstrap, 230 Ga. App. 281, 282 (495 SE2d 885) (1998), this Court held that Gilstrap waived his right to a preliminary hearing by posting bond and, pursuant to OCGA § 17-7-70.1, was not entitled to indictment by a grand jury on the offense of habitual violator. We find that Gilstrap, which involved an interpretation of OCGA § 17-7-70.1 prior to its amendment effective March 27, 1998, is persuasive. The state could have proceeded to trial on the accusation because Lynn had posted bond. Id. at 282-283.

The record also reveals that on March 16, 1998, when Lynn entered her original plea of not guilty on all charges, she signed an express waiver of “formal arraignment.” During the course of changing her plea to guilty of shoplifting, Lynn waived her right to trial by jury. Her amended plea of guilty to shoplifting ultimately was accepted by the trial court. Lynn also waived any right of indictment when she originally entered a plea of not guilty to all counts, without first having filed a written objection to proceeding under the accusation. Crowder v. State, 218 Ga. App. 630, 631 (1) (462 SE2d 754) (1995). Lynn’s subsequent amendment of her shoplifting plea from not guilty to guilty and her contemporaneous waiver of her right to trial by jury did not negate her prior waiver of any right of indictment. Lynn contends that Wainwright v. State, 208 Ga. App. 777, 778 (2) (432 SE2d 555) (1993), and Darty v. State, 188 Ga. App. 447, 448 (373 SE2d 389) (1988), require grand jury presentment because recidivism must be alleged by way of indictment. Lynn’s reliance on Wainwright and Darty to support this contention is misplaced. In Wainwright, supra, and Darty, supra, the defendants had been brought to trial by indictment, and the opinions must be analyzed in that light. Neither Wainwright nor Darty expressly holds that recidivism can be alleged only in an indictment, and we decline to create such a rule.

2. Lynn contends the trial court erred in imposing felony punishment for her shoplifting conviction because she had only two, rather than three, prior shoplifting convictions that could be considered to enhance punishment under OCGA § 16-8-14 (b) (1) (C). She argues that in addition to prior misdemeanor shoplifting convictions, only those prior felony shoplifting convictions occurring after April 29, 1997, the effective date of the 1997 amendments to OCGA § 16-8-14 (b) (1), would support an increase of her punishment. For the following reasons, we find her contention to be without merit.

The current shoplifting offense was committed on December 11, 1997. Prior to the commission of this offense, Lynn had been convicted, inter alia, of committing: (1) a misdemeanor shoplifting offense on April 13, 1997; (2) felony and misdemeanor shoplifting offenses in January 1997 and June 1997, respectively; and (3) a felony shoplifting offense in May 1991 (first offender sentence).

Before OCGA § 16-8-14 (b) (1) was amended in 1997, only prior misdemeanor shoplifting convictions could be considered in seeking felony for a fourth shoplifting conviction. See generally Fuller v. State, 230 Ga. App. 219, 221 (3) (496 SE2d 303) (1998). The 1997 statutory amendment to OCGA § 16-8-14 (b) (1) (C), provided that, “[u]pon conviction of a fourth or subsequent offense for shoplifting, where the prior [shoplifting] convictions are either felonies or misdemeanors, or any combination of felonies and misdemeanors . . ., the defendant commits a felony and shall be punished by imprisonment for not less than one nor more than ten years; and the first year of such sentence shall not be suspended, probated, deferred, or withheld.” (Emphasis supplied.)

Lynn argues that the 1997 amendment must be construed as prospective in application. She also argues that OCGA § 16-8-14 (b) (1) (C) is ambiguous as to whether a felony shoplifting conviction, occurring prior to April 29, 1997, can be considered in determining whether a defendant has committed felony shoplifting, and that this ambiguity must be resolved in her favor. Lynn has failed to assert any constitutional provision which, under the facts of this case, requires this Court to apply OCGA § 16-8-14 (b) (1) (C) prospectively, and we are aware of none. See Johnson v. State, 229 Ga. App. 400 (493 SE2d 926) (1997). Thus, the remaining question is whether OCGA § 16-8-14 (b) (1) (C) contains an ambiguity that must be resolved in Lynn’s favor. We conclude it does not.

“In all interpretations of statutes, the courts shall 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). The most important principle of statutory construction is to discern the intent of the rule. See In the Matter of Dale A. Allison, Jr., 267 Ga. 638, 642 (2) (481 SE2d 211) (1997). The General Assembly amended OCGA § 16-8-14 (b) (1) (C) so that the fourth or subsequent conviction for shoplifting shall be a felony. See Ga. L. 1997, p. 1394. This amendment was enacted to remedy a deficiency in the prior statute whereby the courts could consider only prior misdemeanor shoplifting convictions under OCGA § 16-8-14 (b) (1). With these purposes in mind, we have no difficulty in concluding that the General Assembly intended that as to convictions of shoplifting occurring after the effective date of the 1997 amendment, any prior shoplifting conviction shall be considered in determining if the defendant has committed felony shoplifting. Moreover, if the legislature had intended to limit the consideration of prior felony convictions to those occurring after April 29,1997, it could have done so. See, e.g., Hall v. Regal Ins. Co., 202 Ga. App. 511, 514 (2) (414 SE2d 669) (1992).

3. Lynn claims that the trial court erred in sentencing her as a repeat offender under OCGA § 17-10-7 when the same felony shoplifting conviction was used to impose felony punishment under OCGA § 16-8-14 (b) (1) (C). Because her prior shoplifting convictions rendered the instant shoplifting charge a felony, rather than served merely as a vehicle for sentence enhancement, we disagree.

During the sentencing hearing, the state introduced evidence of Lynn’s three prior convictions for shoplifting. Prior to trial, the state served Lynn with notice of intent that it would present evidence of each of these three prior convictions for purposes of sentencing under OCGA §§ 16-8-14 (b) (1) (C) and 17-10-7; these three convictions were identified by their case number. One of the prior shoplifting convictions so identified was also alleged in the indictment as the sole felony conviction supporting the habitual felon charge. The shoplifting count in the information merely alleged that Lynn had three prior theft by shoplifting convictions. Lynn was convicted of both felony shoplifting under OCGA § 16-8-14 (b) (1) (C) and habitual felon under OCGA § 17-10-7.

Lynn contends that her prior shoplifting convictions were improperly considered by the trial court to enhance her punishment. The record does not support her contention. Because she had three prior shoplifting offenses, Lynn’s fourth shoplifting offense was a felony by statutory definition. The maximum permissible punishment for felony shoplifting, under OCGA § 16-8-14 (b) (1) (C), is imprisonment for not less than one nor more than ten years; and the first year of such sentence shall not be suspended, probated, deferred, or withheld. Lynn was sentenced, inter alia, to imprisonment for ten years with the last five years probated. The punishment Lynn received was within the range of permissible maximum punishment authorized for felony shoplifting. Thus, Lynn’s exposure to more severe punishment resulted from the felony status of her shoplifting offense, not from the introduction of her prior convictions for sentence enhancement purposes.

Lynn’s reliance on King v. State, 169 Ga. App. 444 (313 SE2d 144) (1984), and State v. Freeman, 198 Ga. App. 553 (402 SE2d 529) (1991), is misplaced. These cases do not address the situation at issue in this case and do not discuss the legal effect of OCGA § 16-8-14 (b) (1) (C).

Decided February 22, 1999

Michael R. McCarthy, for appellant.

KermitN. McManus, District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.

“ ‘[T]here is a presumption that [a] sentence was correctly imposed, and the burden of showing that a sentence was not correctly imposed is with the party who asserts its impropriety.’ ” Williams v. State, 221 Ga. App. 291, 294 (2) (470 SE2d 922) (1996). Lynn has failed to carry her burden, and we find that her contention is without merit.

Judgment affirmed.

Smith and Barnes, JJ, concur.


text:
    A98A2389.
    BROOKS v. THE STATE.
    (512 SE2d 693)
   Smith, Judge.

Garland Brooks was indicted and convicted on two charges of child molestation. His motion for new trial as amended was denied, and Brooks appeals. Finding no reversible error, we affirm.

Construed to uphold the verdict, evidence presented at trial showed that Brooks and his wife babysat five-year-old K. M. while her mother worked, usually from 11:30 p.m. until 7:30 a.m. K. M.’s mother dropped K. M. off at the Brookses’ home, where she would spend the night. Each morning, either Brooks or his wife would awaken K. M. and dress her, and K. M.’s mother would pick her up and take her to school. K. M. testified that while she was staying with the Brookses, after Ms. Brooks had gone to work, Brooks woke her up, “lotioned me down . . . pulled his pants off and put his penis on me.” She stated that this “happened a lot of times.” Approximately two months after K. M. began staying with the Brookses, she told her mother and sister about these events, and both of them testified.

1. Brooks first contends that the trial court erroneously refused to allow him to question character witnesses concerning his reputation in the community for treating children appropriately. The trial court excluded this testimony, permitting defense counsel to ask whether Brooks’s reputation was “good or bad but nothing specific.”

We find no error. The import of testimony that Brooks had a general reputation for acting appropriately toward children would be that he did not have a reputation for molesting children. Such evidence is inadmissible. See Ware v. State, 191 Ga. App. 896, 897 (3) (383 SE2d 368) (1989). While the proffer was phrased in terms of Brooks’s general reputation in the community, inherent to the issue of whether he acted appropriately toward children would be the more narrow and specific issue of his actions toward specific children. And evidence of specific acts is inadmissible to show a defendant’s good character. See, e.g., OCGA § 24-9-84; Shelnutt v. State, 234 Ga. App. 655, 656 (1) (506 SE2d 643) (1998); Davis v. State, 189 Ga. App. 439, 440 (4) (376 SE2d 230) (1988); Baine v. State, 181 Ga. App. 856, 858 (2) (354 SE2d 177) (1987).

Moreover, in addition to an abundance of evidence that Brooks had a reputation for honesty, some evidence of his behavior around children was admitted, without objection. Several character witnesses testified on Brooks’s behalf that he had a credible reputation, or a reputation for honesty, in both his business and church communities. Also, one character witness testified that Brooks had worked with her in the children’s department at their church, and when asked about his reputation for honesty, she stated that he was an “honest, kind person.” We find no error. See generally Sustakovitch v. State, 249 Ga. 273, 275 (5) (290 SE2d 77) (1982); Ware, supra; Shelnutt, supra.

2. Brooks also argues that the trial court erroneously limited his cross-examination of the victim’s mother. He sought to ask this witness if “there [have] been problems in your family with child molestation.” He argued that this evidence went to the victim’s credibility and that this witness “was predisposed to hear something and attached a meaning to it.”

As correctly argued by Brooks, we have held that “a prior act of molestation committed against the child of a witness is relevant to show any possible bias against an accused child molester that the witness may entertain, unconsciously or deliberately.” Letlow v. State, 222 Ga. App. 339, 342-343 (2) (474 SE2d 211) (1996). But even assuming that the trial court should have allowed this cross-examination under cases such as Letlow, we conclude that the limitation imposed was harmless because other, unobjected-to evidence of this witness’s “predisposition” was presented. She testified that she had talked with a co-worker concerning her fears about child molestation in general. Also, the victim’s older sister testified that her mother had expressed fear that the older sister’s boyfriend might try to harm the victim. We also note that this witness’s credibility was attacked during Brooks’s cross-examination of her older daughter. Previously during the trial, the victim’s mother testified that she had never dealt with child molestation issues with either one of her daughters. But her older daughter testified that this testimony was incorrect. Under these circumstances, the refusal to allow Brooks “to present cumulative or amplifying evidence was, at most, harmless error. [Cit.]” Turner v. State, 210 Ga. App. 303, 305 (3) (436 SE2d 229) (1993). See also Hurston v. State, 194 Ga. App. 226, 227 (390 SE2d 119) (1990).

3. Brooks contends he was denied effective assistance of counsel, arguing that trial counsel failed to use information contained in certain school records to attack the victim’s credibility. These records, apparently prepared while the victim was in kindergarten, indicated that the victim “stretches the truth,” and “copies others to know what she [is] suppose [d] to be doing.”

At trial, defense counsel attempted to cross-examine the victim’s mother concerning the victim’s credibility by using these documents. Recognizing that the statements on the reports were not statements made by the witness, the trial court refused to allow defense counsel to ask the witness whether the victim “stretched” the truth or copied other people but did state that counsel could ask whether the witness was familiar with the victim’s reputation for truthfulness and whether she would believe her under oath. Brooks argues that trial counsel was ineffective for failing to call a witness who could lay a proper foundation for this evidence; he claims that the teacher who wrote the report could have testified about the child’s general reputation for veracity and that the teacher could have testified “as an expert regarding the opinions and conclusions in the report” so that the report could have been admitted under the business records exception to the hearsay rule.

Brooks correctly states the general rules governing a defendant’s burden when ineffective assistance of counsel is alleged: A defendant must show that trial counsel was deficient, in other words, that counsel’s “representation . . . fell below an objective standard of reasonableness and . . . 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.” (Punctuation omitted.) Scott v. State, 223 Ga. App. 479, 481-482 (477 SE2d 901) (1996).

We find no error in the trial court’s denial of Brooks’s motion for new trial on ineffectiveness grounds. It is questionable whether the information concerning the victim’s credibility contained in the school records was even admissible or whether the victim’s teacher could properly have testified as to this information, as such testimony could amount to the teacher’s expert opinion on “the truthfulness or credibility of the victim. . . . [T]he question of a particular child’s credibility is not properly the subject of expert testimony as it is reserved for the jury. [Cits.]” (Punctuation omitted.) Gorski v. State, 201 Ga. App. 122, 123 (2) (410 SE2d 338) (1991). See also Jennette v. State, 197 Ga. App. 580, 582 (398 SE2d 734) (1990). Given the questionable nature of the information contained in these documents, we cannot conclude counsel’s failure to introduce them amounted to deficient representation. But even assuming that the evidence was admissible, Brooks has not shown that the result of the trial would have been different, but for trial counsel’s failure to introduce it. The victim’s credibility was called into question by other means, particularly during cross-examination of the State’s witnesses.

Decided February 22, 1999

Mark J. Kadish, for appellant.

Daniel J. Porter, District Attorney, Nancy J. Dupree, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, C. J., and Barnes, J., concur.


text:
    A98A2407.
    WELLS v. THE STATE.
    (512 SE2d 711)
   Smith, Judge.

We granted Reuben Wells’s application for discretionary appeal to consider whether the trial court properly dismissed his “Motion to Set Aside Revocation of Probation and, in the Alternative, Motion for New Triál.” Because the trial court incorrectly concluded that OCGA § 5-6-35 barred the filing of such a motion, we vacate the order and remand for further proceedings consistent with this opinion.

In the trial court’s order, it correctly noted that the discretionary appeal procedures apply to an order revoking probation, see OCGA § 5-6-35 (a) (5), and that under subsection (b) all appeals from such orders shall be by application. But the trial court erred in holding that, as a result, a discretionary appeal is the exclusive method of seeking reconsideration or review of orders and judgments enumerated in that section, barring any motion to set aside or for new trial.

OCGA § 5-6-35 itself contemplates that a motion for new trial may be filed before discretionary application is made: “When a motion for new trial. . . has been filed, the application shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.” OCGA § 5-6-35 (d). OCGA § 5-6-35 in and of itself, therefore, does not foreclose the filing of a motion for new trial.

The trial court correctly stated that a probation revocation is not a criminal proceeding and must be appealed by means of a discretionary application. State v. Wilbanks, 215 Ga. App. 223 (450 SE2d 293) (1994). But that has no bearing on whether a motion for new trial will lie in a probation revocation proceeding. Nor does the denial of a motion for new trial change the appellant’s obligation to follow the discretionary appeal procedures. OCGA § 5-6-35 (d) also provides that, even though a direct appeal will ordinarily lie from a ruling on a motion for new trial or to set aside a judgment, a case within the purview of OCGA § 5-6-35 (a) (1)-(11) remains subject to the discretionary appeal procedure. “[T]he discretionary application procedure must be followed, even when the party is appealing a judgment or order that is procedurally subject to a direct appeal under OCGA § 5-6-34 (a). [Cits.]” Rebich v. Miles, 264 Ga. 467, 468-469 (448 SE2d 192) (1994).

A motion for new trial properly could be filed under the circumstances existing here. A hearing was held, witnesses testified, exhibits were introduced, and counsel made objections and arguments to the trial court. In other words, the nature of the hearing was such that statutory grounds for new trial could be and were alleged. See, e.g., OCGA §§ 5-5-22; 5-5-25.

Finally, this court has considered appeal of a probation modification and revocation brought after a motion for new trial was filed and denied in the trial court. Abney v. State, 170 Ga. App. 265 (316 SE2d 845) (1984). Abney predates the inclusion of probation revocation within the discretionary appeal procedures of OCGA § 5-6-35; see Gazaway v. State, 178 Ga. App. 318 (343 SE2d 135) (1986). But the case remains pertinent to show that a motion for new trial may be filed with respect to a probation revocation.

Consequently, we must vacate the judgment in this case and remand to the trial court for consideration of Wells’s motion to set aside or in the alternative for new trial. In taking this position, we express no opinion on the merits of Wells’s motion.

The clerk of this court will remove this appeal from the appellate docket and remand it to the trial court. If the trial court denies Wells’s motion, he may, within 30 days of the trial court’s ruling, file an application in accordance with the discretionary appeal procedures of OCGA § 5-6-35.

Judgment vacated and case remanded with direction.

Johnson, C. J., and Barnes, J., concur.

Decided February 22, 1999.

Ray C. Smith, for appellant.

Spencer Lawton, Jr., District Attorney, Barbara G. Parker, Assistant District Attorney, for appellee.

       This court has also considered a discretionary appeal, as required by OCGA § 5-6-35 (a) (2), in a petition for modification of an existing child custody order after denial of a motion for new trial. See, e.g., McGowan v. McGowan, 231 Ga. App. 362 (498 SE2d 574) (1998) (physical precedent only).


author: McMurray, Presiding Judge.

text:
    A98A1814.
    McALISTER v. THE STATE.
    (512 SE2d 53)
   McMurray, Presiding Judge.

Defendant filed this appeal after entry of the judgment of his conviction and sentence for trafficking in cocaine. Defendant challenges the denial of his motion to suppress, the denial of his motion to dismiss and plea of former jeopardy and the denial of a direct appeal from the order denying his motion to dismiss and plea of former jeopardy.

United States Secret Service agents conducted a warranted search of defendant’s home under an affidavit indicating that defendant was involved in counterfeiting U. S. currency. The search revealed that defendant was in possession of counterfeit U. S. currency, 42.5 grams of a substance which was 76 percent cocaine, marijuana and drug paraphernalia (“a drug pipe, a substance called inositol, some marijuana in bags, some straws, a sifter, a spoon covered with some suspected cocaine [and] an electronic scale”). Defendant later pleaded guilty to two counts of counterfeiting U. S. currency in the United States District Court for the Northern District of Georgia and agreed to be tried before the Superior Court of DeKalb County, Georgia, under a stipulation of facts and evidence adduced during an earlier motion to suppress hearing. Held:

1. Defendant’s plea of former jeopardy is based on OCGA § 16-1-8 (c). This Code subsection provides “that a prosecution is barred if the accused has been prosecuted in a federal district court for a crime which is within the concurrent jurisdiction of Georgia if that federal conviction is for the same conduct for which the state prosecution seeks to punish, unless the cumulative prosecutions each require proof of a different fact and not required in proof of each crime, respectively.” Brown v. State, 181 Ga. App. 795, 796 (354 SE2d 3).

Defendant’s federal convictions required proof that defendant counterfeited U. S. currency. This proof would not have been required to authorize defendant’s convictions for the offenses that were originally charged in the case sub judice — trafficking in cocaine (Count 1) and possession of cocaine with intent to distribute (Count 2). Because the facts necessary to prove the federal counterfeiting charges were different from the facts necessary to prove the charges for which defendant was tried in the case sub judice, defendant’s “federal prosecution is not a bar to [his] state prosecution. Satterfield v. State, 256 Ga. 593, 595 (2) (351 SE2d 625) (1987); Brown v. State, 181 Ga. App. 795, 796[, supra].” Torres v. State, 270 Ga. 79 (1) (508 SE2d 171). The trial court did not err in denying defendant’s motion to dismiss and plea of former jeopardy.

2. The trial court found that defendant’s motion to dismiss and plea of former jeopardy were frivolous and pursued for purposes of delay because these filings were untimely under the trial court’s local rules, were asserted without the trial court’s permission and were filed after the trial court granted defendant several continuances of his trial. These findings authorize the trial court’s order denying defendant a direct appeal from the denial of his motion to dismiss and plea of former jeopardy. Rielli v. Oliver, 170 Ga. App. 699 (318 SE2d 173). Contrary to defendant’s third enumeration of error, the trial court had jurisdiction in the case sub judice to try defendant for the charged offenses after defendant filed notices of appeal from the denial of his motion to dismiss and plea of former jeopardy. See Strickland v. State, 258 Ga. 764, 765 (1) (373 SE2d 736).

3. Defendant contends the trial court erred in denying his motion to suppress, arguing that the affidavit supporting the warranted search of his home does not establish probable cause for issuance of a search warrant. We do not agree.

“In deciding whether an affidavit established probable cause necessary for issuance of a search warrant, it is well settled that we must apply the ‘totality of the circumstances analysis (utilized) in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983).’ State v. Davis, 217 Ga. App. 225 (457 SE2d 194) (1995), aff’d, Davis v. State, 266 Ga. 212 (465 SE2d 438) (1996). ‘Under that analysis, the task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.’ (Citations and punctuation omitted.) 217 Ga. App. at 225-226.” Dearing v. State, 233 Ga. App. 630, 631 (505 SE2d 485).

In the case sub judice, a United States magistrate judge issued a search warrant for defendant’s home based on a twenty-six-paragraph affidavit outlining an ongoing (over two months) undercover operation which resulted in the arrest of Kennedy Uzomba for selling counterfeit U. S. currency to an undercover confidential informant (“the informant”). This affidavit describes Uzomba’s statement to the informant during the undercover operation that he had a “source” for counterfeit money and conveys that Uzomba called the informant from a telephone at defendant’s house (just before an arranged undercover purchase of counterfeit currency) and affirmed to the informant that he was then in the process of picking up counterfeit currency for the arranged undercover transaction. The affidavit describes that Uzomba informed law enforcement agents immediately after he was arrested that defendant was his “source” for counterfeit money and that he had been at defendant’s house the day he telephoned the informant about retrieving counterfeit currency for the arranged undercover transaction. The affidavit concludes by conveying how Uzomba directed law enforcement agents to defendant’s house. We find that this information authorized a substantial basis for concluding that probable cause existed for a search of defendant’s home. The trial court therefore did not err in affirming the issuing magistrate’s finding that there was a fair probability that contraband would be found at defendant’s home.

Decided February 8, 1999

Reconsideration denied February 23, 1999

Lawson & Thornton, Charles S. Thornton, Alton Hornsby III, for appellant.

J. Tom Morgan, District Attorney, Priscilla E. N. Carroll, Barbara B. Conroy, Assistant District Attorneys, for appellee.

The trial court did not err in denying defendant’s motion to suppress.

Judgment affirmed.

Eldridge, J., and Senior Appellate Judge Harold R. Banke concur.

       Defendant was indicted in the Superior Court of DeKalb County, Georgia for trafficking in cocaine (Count 1) and possession of cocaine with intent to distribute (Count 2). The trial court merged these offenses and sentenced defendant under Count 1 of the indictment.


author: Barnes, Judge.

text:
    A98A2417.
    SHELTON v. THE STATE.
    (512 SE2d 17)
   Barnes, Judge.

Sterling Shelton appeals from his convictions of driving under the influence of alcohol to the extent it was less safe for him to drive (OCGA § 40-6-391 (a) (1)), possession of alcohol by an underage person (OCGA § 3-3-23) and failure to maintain a lane (OCGA §§ 40-6-48 and 40-6-1). We affirm.

1. In his first enumeration of error, appellant contends the trial court erred when it admitted into evidence copies of the uniform traffic citations issued to him for driving under the influence and failure to maintain a lane. The record shows these citations were offered by the State after the police officer was cross-examined about the existence of a slope in the area where Shelton performed field sobriety tests. Shelton’s counsel attempted to establish the existence of the slope by asking the officer about the accumulation of water in the parking lot after a heavy rain. On re-direct, the State asked the officer whether he had made notations on the citations about the weather and pavement conditions. After reviewing the citations, the officer answered that he had noted on the citations that the weather was “clear and dry” and the pavement was “blacktop surface level.” The State then moved to admit the citations into evidence, and appellant objected on the grounds that they were cumulative of the officer’s testimony. The only other objection raised by appellant was that it was improper for the State to submit the citation into evidence when it had already drawn up a formal accusation. The trial court overruled these objections.

On appeal, appellant asserts the trial court erred when it allowed the citations into evidence based upon two objections which were never raised in the trial court. First, appellant asserts that since the citations could have served as an accusation, they are inadmissible because accusations cannot serve as evidence. See Graves v. State, 269 Ga. 772, 774 (3) (504 SE2d 679) (1998). Second, appellant asserts the citations should not have been admitted because they contained information which was prejudicial to the defense. By failing to raise these specific objections in the trial court, appellant has failed to preserve these issues for our review. Kinney v. State, 234 Ga. App. 733, 736 (4) (506 SE2d 441) (1998); Allison v. State, 217 Ga. App. 580 (459 SE2d 557) (1995).

2. By failing to request it below, appellant has also waived his claim that the trial court should have given a limiting instruction to the jury about the purpose for which the traffic citations were admitted. Matthews v. State, 221 Ga. App. 129, 131 (3) (470 SE2d 518) (1996).

3. In his final enumeration of error, appellant asserts the trial court erred when it gave the following instruction to the jury: “it is not necessary for the State to show that the accused was drunk. It is sufficient that the State shows, beyond a reasonable doubt, that the defendant was under the influence of alcohol to the extent that it was less safe for him to drive a car than it would have been if he were not so affected, whether drunk or not.” According to appellant, the use of the undefined word “drunk” created a contradictory charge because “a juror may well consider that someone who is ‘less safe to drive’ is drunk while a person who is not ‘less safe to drive’ is not drunk.” Based on this claimed perception, appellant argues that the trial court effectively charged the jury that “the State need not show that the Defendant was ‘less safe to drive.’ ”

Decided February 3, 1999

Reconsideration denied February 23, 1999

Head, Mullís, Thomas & Webb, Thomas J. Thomas, for appellant.

Ralph T. Bowden, Jr., Solicitor, Thomas E. Csider, Gwendolyn R. Keyes, Assistant Solicitors, for appellee.

We find no error in the trial court’s charge. This Court has already considered and upheld similar charges which advised the jury that a defendant does not have to be drunk in order for him to be a less safe driver. Brownlee v. State, 225 Ga. App. 311, 312-313 (1) (483 SE2d 370) (1997); Mattarochia v. State, 200 Ga. App. 681, 685 (5) (e) (409 SE2d 546) (1991).

Judgment affirmed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.

       In this case, the citations did not serve as an accusation because the solicitor’s office issued a separate accusation for the charges against appellant.


author: Eldridge, Judge.

text:
    A99A0314.
    WALLACE v. SWIFT SPINNING MILLS, INC.
    (511 SE2d 904)
   Eldridge, Judge.

Plaintiff-appellant Kenneth C. Wallace challenges the trial court’s denial of his motion for new trial in his personal injury suit against Swift Spinning Mills, Inc. (“Swift”). We affirm.

In his complaint, Wallace alleged that he was injured in a collision between his employer’s vehicle, which he was driving, and a truck driven by an employee of Swift. Swift had vehicle liability coverage through American Motorist Insurance Company (“American Motorist”), which provided the defense in this action. According to Wallace, American Motorist is a corporate subsidiary of Kemper National Insurance Company (“Kemper”). Following an October 1997 jury trial, the jury issued a verdict for the defense. Wallace filed a motion for new trial, which was denied by the trial court. He timely appeals. Held:

1. In his sole enumeration of error, Wallace contends that the trial court committed reversible error when it refused to qualify the jurors as to their relationship to four insurance companies that he asserts are “subsidiaries,” “sisters,” or otherwise related corporations to the defendant’s corporate insurance carrier. We disagree.

During the pre-trial hearing, after plaintiff’s counsel presented his request to qualify the jurors as to all of the insurance companies, the trial court proposed, “How about if I ask them if anybody is a shareholder, officer, agent or otherwise affiliated with Kemper Insurance or any of it’s [sic] subsidiaries?” Plaintiff’s counsel responded, “Well, they’re not going to know who they are, Judge.” The trial court then replied, “Well they’re not going to be officers and directors then. If they’re an officer, director and employee they’d know it.” Plaintiff’s counsel then stated that the jurors should be qualified because “[t]hey may have insurance coverage with one of these subsidiaries and if they do that’s grounds for us to move to strike them, Judge.” The trial court disagreed and qualified the jury only as to its association with American Motorist.

Wallace is correct in his assertion that a party is entitled to a trial by fair and impartial jurors. Jury panelists with a relationship to an insurance company that has a demonstrable, direct financial interest as an insurer in the case, such as employees, officers, stockholders, policyholders of mutual insurance companies, or family members of someone in these prohibited categories may not be impartial and should be removed from the panel for cause. OCGA § 15-12-135 (a); Smith v. Crump, 223 Ga. App. 52, 54, 56 (476 SE2d 817) (1996); Weatherbee v. Hutcheson, 114 Ga. App. 761, 765 (152 SE2d 715) (1966). Therefore, in most cases, a presumption of harmful error arises when a trial court refuses a request to qualify jurors as to their relationship with the insurers of the parties, regardless of whether the insurers are named parties to the action. Atlanta Coach Co. v. Cobb, 178 Ga. 544, 549 (174 SE 131) (1934); Arp v. Payne, 230 Ga. App. 840 (497 SE2d 810) (1998); Smith v. Crump, supra at 54, 56; see also Patterson v. Lauderback, 211 Ga. App. 891, 895 (3) (440 SE2d 673) (1994); Weatherbee v. Hutcheson, supra at 764-765; Shepherd Constr. Co. v. Vaughn, 88 Ga. App. 285, 288 (76 SE2d 647) (1953). Such presumption must be rebutted, if at all, prior to the verdict. Arp v. Payne, supra at 841; see also Atlanta Coach Co. v. Cobb, supra at 551-552.

However, no presumption of harmful error arises absent an affirmative showing to the trial court by the proponent of such qualification that there is a strong probability that insurance companies that are not insurers of the parties have a direct, demonstrable financial stake in the outcome of the case. See Smith v. Crump, supra at 54; Shepherd Constr. Co. v. Vaughn, supra at 288 (1). Without such showing, this Court refuses to require the trial court to qualify a jury panel as to their relationship with non-insurers. Notably, such financial interest in the outcome cannot be established by simply alleging, as Wallace has done in this case, that the non-insurers share a common “parent” corporation with an insurer. Indeed, in an age where many corporations have multiple subsidiaries in several different corporate divisions, it is possible to envision a situation, such as that presented in Holt v. Scott, 226 Ga. App. 812, 814 (487 SE2d 657) (1997), where it would be extremely difficult or impossible to find jurors who are not subject to disqualification due to a prohibited relationship with any of the subsidiaries of a large corporation.

In addition, public policy would not be served by allowing the qualification of jurors as to multiple non-insurers without first requiring that the proponent of such qualification establish that the companies have a financial stake in the outcome of the case. The reason is the same as that propounded for the exclusion of evidence of insurance coverage, i.e., the significant potential for jurors to be prejudiced regarding the type and amount of insurance coverage available to the parties. See Atlanta Coach Co. v. Cobb, supra at 549; Denton v. Con-Way Southern Express, 261 Ga. 41-43 (402 SE2d 269) (1991), overruled on other grounds, Grissom v. Gleason, 262 Ga. 374, 376 (418 SE2d 27) (1992); Smith v. Crump, supra at 54; Gonzalez v. Wells, 213 Ga. App. 494 (445 SE2d 332) (1994); Franklin v. Tackett, 209 Ga. App. 448, 450-455 (433 SE2d 710) (1993) (Beasley, P. J., concurring specially); McKin v. Gilbert, 208 Ga. App. 788, 790 (432 SE2d 233) (1993); Collins v. Davis, 186 Ga. App. 192 (366 SE2d 769) (1988); Weatherbee v. Hutcheson, supra at 765 (1) (b).

During the pre-trial hearing in this case, Wallace presented no evidence, beyond his mere assertion, that the “subsidiaries” had any financial interest in the case or that they would be affected in any way by the outcome of this case. Further, Wallace failed to demonstrate in his motion for new trial any such interest beyond mere allegations of an association of the companies through a common parent corporation. Accordingly, the trial court did not err in failing to qualify the jurors as to their association with Lumbermen’s Mutual Casualty Company, American Manufacturer’s Mutual Insurance Company, and American Protection Insurance Company.

2. As to Kemper National Insurance Company, it is unnecessary to determine whether Kemper had a direct financial interest in the case due to the unsubstantiated allegation that Kemper is the parent corporation of Swift’s insurer. Wallace waived any objection to the trial court’s failure to qualify the jurors as to their association with Kemper. The trial court expressly offered on the record to qualify the jurors as to their relationship with Kemper, but plaintiff’s counsel complained that such qualification would be insufficient. In so doing, he clearly presented the court with an “all or nothing” choice, which was properly rejected. See Division 1, supra. “It is a well-settled appellate rule that one cannot complain about a ruling of the trial court which the party’s own trial tactics or conduct procured or aided in causing. Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997).” Maxwell v. State, 233 Ga. App. 419, 423 (4) (b) (503 SE2d 668) (1998).

Decided February 9, 1999

Reconsideration denied February 23, 1999

Charles A. Gower, George W. Snipes, Christopher J. McFadden, for appellant.

Swift, Currie, McGhee & Hiers, Susan A. Dewberry, for appellee.

Judgment affirmed.

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

       In his pre-trial order, Wallace requested that the trial court voir dire the jurors as to their relationship with, inter alia, the following entities: “2. Lumbermen’s Mutual Casualty Company, stockholders, officers, agents and other affiliations!;] 3. American Motorist Insurance Company, stockholders, officers, agents and other affiliations [(defendant’s insurance carrier);] 4. American Manufacturer’s Mutual Insurance Company, stockholders, officers, agents and other affiliations!;] 5. American Protection Insurance Company, stockholders, officers, agents and other affiliations!; and] 6. Kemper National Insurance Company, stockholders, officers, agents and other affiliations.”

       A mutual insurance company is one that does not issue capital stock, so that “the policyholder has an interest in the assets of the company, usually realized by the way of dividends reducing the policy premium.” Weatherbee v. Hutcheson, 114 Ga. App. 761, 765 (1) (a) (152 SE2d 715) (1966). See also Patterson v. Lauderback, 211 Ga. App. 891, 895 (3) (440 SE2d 673) (1994), overruled on other grounds, Warren v. Ballard, 266 Ga. 408, 410 (467 SE2d 891) (1996); Black’s Law Dictionary (6th ed.), p. 1021. However, these policyholders also may be liable for any judgment against the insurance company. Patterson v. Lauder-back, supra. In contrast, it is improper to qualify jurors as to whether they are policyholders in non-mutual (capital stock) insurance companies, as they would have no.interest in the assets of the company and are “no more disqualified than would be a depositor in a bank that is a party to litigation.” Weatherbee v. Hutcheson, supra; see also Patterson v. Lauderback, supra at 893 (3). In this case, there was no error in the trial court’s refusal to qualify the jurors on the sole basis that they may be policyholders of insurance companies which, as evidenced by Wallace’s own pre-trial proposed order, appear to be corporations which issue capital stock. See footnote 1, supra.

       Although Wallace asserts that, because he filed a separate workers’ compensation claim with Lumbermen’s Mutual Casualty Company, the jury should be qualified as to their relationship to that company, there is no evidence in the record to show that the jurors were aware that such claim had been filed.

       In Holt v. Scott, supra at 813, this Court held that it was not an abuse of discretion for a trial court to grant a motion for change of venue after voir dire of 120 venirepersons established that only 12 did not have a prohibited relationship with a mutual insurance company and were statutorily eligible to serve.

       Although Wallace attached copies of documents which purport to demonstrate a parent/subsidiary relationship between the various insurance companies, “factual assertions in briefs not supported by evidence of record are not generally considered on appellate review. [Cit.]” Southern Dev. Co. v. ShepCo Paving, 206 Ga. App. 535 (1) (426 SE2d 234) (1992).

       Under OCGA § 15-19-7, the plaintiff can demand proof as to the identity of his insurer; the trial court can compel defense counsel to divulge the identity of the insurer or insurers for the purpose of qualification of the jury. Weatherbee v. Hutcheson, supra at 765 (1) (b). Beyond this, plaintiff would have to put up certified records from the Insurance Commissioner or industry publications showing the financial relationship between an insurer and any other insurance company to demonstrate a direct financial stake in the case. If the insurer is not a corporation but a partnership, joint venture, cooperative, trust, or association that acts as an insurer under a trade name, then each entity that has a financial stake in the insurer should be qualified. Plaintiff must show the identity and nature of the insurer, which demonstrates the financial interest as insurer. The nature of the insurer may be demonstrated by Insurance Commissioner records of qualification and financial ability, trade publications, partnership registration, trade name registrations, or any other evidence that would prove the nature of the insurer.

       Had plaintiff shown that the insurer was the name of a division of a parent corporation and that such division had no separate corporate entity, the trial court would have to qualify the jury as to the corporation, which would be the real insurer. But see Division 2, infra. Likewise, if the real entity was a corporation operating under a number of trade names, then the jury would have to be qualified as to each trade name, as well as to the corporation.


text:
    A99A0418.
    HAYES v. THE STATE.
    (512 SE2d 294)
   Eldridge, Judge.

Raymond H. Hayes appeals a Whitfield County jury’s verdict finding him guilty of aggravated sodomy, aggravated child molestation, aggravated sexual battery, and child molestation for acts committed against his minor, adopted daughter. Without challenging the sufficiency of the evidence introduced against him, Hayes raises four alleged errors of law. We affirm his conviction.

1. During closing argument, Hayes’ counsel attempted to argue that the victim’s allegations of sexual abuse are inconsistent with various statements and actions of the victim. The prosecutor objected to the argument when Hayes’ counsel stated: “These are discrepancies and these items, these things are reasonable doubt.” The court sustained the prosecutor’s objection that reasonable doubt is a determination to be made by the jury after instruction from the court and not to be made by defense counsel.

While it is true that the trial court’s role is to instruct the jury on reasonable doubt and that the jury’s role is to determine whether guilt has been proven beyond a reasonable doubt, the argument made by Hayes’ counsel was appropriate and did not invade the province of either the judge or the jury. “Counsel have every right to refer to applicable law during closing argument (i.e., law that the court is going to give in [the] charge.).” (Citations and punctuation omitted.) Davis v. State, 213 Ga. App. 113, 115 (3) (443 SE2d 638) (1994). Here, Hayes’ counsel referred to the law of reasonable doubt and argued that the evidence proved the existence of such doubt. See Hendry v. State, 177 Ga. App. 439, 440 (2) (339 SE2d 650) (1986). The trial court’s sustaining of the state’s objection to the argument was error.

However, “[t]he burden is on the party claiming error not only to show error, but error which injured him, and unless the error results in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right, an appellate court will not reverse.” (Punctuation omitted.) Williams v. State, 221 Ga. App. 291, 296 (470 SE2d 922) (1996).

Here, the record before us contains no transcript of Hayes’ entire closing argument. Instead, only those portions of the argument objected to by the prosecutor were transcribed. Consequently it is impossible for us to determine the effect of the trial court’s erroneous ruling on the trial as a whole. “ ‘The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed.’ ” McClarity v. State, 234 Ga. App. 348, 351 (506 SE2d 392) (1998).

Additionally, the State presented substantial evidence of Hayes’ guilt, including his written confession to having molested the victim. Moreover, the trial court fully and accurately charged the jury on Hayes’ presumption of innocence, the State’s burden of proof, and the concept of reasonable doubt. Under these circumstances, Hayes has failed to show that the trial court’s error was harmful. Scott v. State, 227 Ga. App. 900, 903 (6) (490 SE2d 208) (1997).

2. Hayes gave a statement to Detective S. Plemons of the Whitfield County Sheriff’s Office. During the statement, R. Herron, a Department of Family & Children Services investigator, was present and took notes. Investigator Herron’s notes contained the information that during Miranda warnings and the signing of the waiver form, appellant Hayes stated “he didn’t know why he was here, that nothing was going on.”

Defense counsel questioned Plemons regarding the contents of Herron’s notes. Plemons repeatedly testified that she could not recall Hayes making the statement attributed to him by Herron: “I don’t recall. I don’t recall him saying that.” Defense counsel then asked Plemons, “Well is it possible that he [Hayes] could have signed the form and then said, T don’t know why I’m here?’ ” The State objected to the question as calling for speculation. The trial court sustained the objection. Hayes claims error in the ruling. We find no error. The question called for speculation regarding an event that, as far as Plemons was concerned, did not happen.

3. During closing argument, defense counsel stated, “[Plemons] allowed that Defendant [Hayes] to pick and choose what he wanted to put in his statement. Now, is there any rhyme or reason to that? Are you going to do something like that?” The trial court sustained a “golden rule” objection. Hayes enumerates such ruling as error. We agree.

“In a classic ‘golden rule’ argument, jurors are invited to place themselves in the victim’s place in regard to the crime itself. However, any argument, regardless of nomenclature, which importunes the jury to place itself in the position of the victim for any purpose must be carefully scrutinized to ensure that no infringement of the accused’s fair trial rights has occurred.” Horne v. State, 192 Ga. App. 528, 529 (2) (385 SE2d 704) (1989). Thus, in a classic “golden rule” argument, the State cannot ask the jurors to put themselves in the victim’s place. Conversely, we have held that any argument that “asks the jurors to consider the case, not objectively as fair and impartial jurors, but rather from the biased, subjective standpoint of a litigant” would be an improper “golden rule” argument. See Myrick v. Stephanos, 220 Ga. App. 520, 523 (472 SE2d 431) (1996), citing 75A AmJur2d, Trial, § 650, p. 260 (1991). Thus, it would appear equally improper for defense counsel to ask a jury to put themselves in the defendant’s place while deciding a case.

Here, however, defense counsel did not ask the jurors to put themselves in the defendant’s place or the victim’s place. Counsel’s argument asked the jurors to put themselves in the place of a witness, i.e., the detective who took Hayes’ statement. Accordingly, the prosecutor’s “golden rule” objection was misplaced, and the trial court’s sustaining of the objection was erroneous. Nevertheless, we find that due to the overwhelming evidence of Hayes’ guilt, it is unlikely that the trial court’s erroneous ruling contributed to the verdict. See McClain v. State, 267 Ga. 378, 383 (3) (a) (477 SE2d 814) (1996). This enumeration of error is without merit.

4. Hayes alleges error in the trial court’s denial of his motion for new trial based upon a claim of ineffective assistance of trial counsel. Hayes contends that his trial counsel was ineffective because he failed to object to the following testimony, characterized by Hayes as impermissibly bolstering the credibility of the victim: “[Prosecutor:] Now, when she [the victim] was telling you all this, what did she look like? What was her demeanor?” “[Detective Plemons:] Her demeanor, she was very serious, very straightforward. She appeared to be a very strong, tough kid who would stand up for what she thought she believed in, or meet the challenge to whatever she needed to do. She was very straightforward and told me what had happened.”

Decided February 9, 1999

Reconsideration denied February 23, 1999.

Little & Adams, Robert B. Adams, for appellant.

Kermit N. McManus, District Attorney, Stephen E. Spencer, Assistant District Attorney, for appellee.

At the hearing on the motion for new trial, Hayes’ trial counsel testified that he did not object to the above-referenced testimony because, “[w]ell, my strategy, part of my strategy, was an attempt to show that this young lady had alleged some very severe molestation over a period of time but did not exhibit any signs of trauma, or stress, or emotional duress. And that statement by the detective, in my mind, just kind of bolstered, or enhanced what I was seeking to prove.”

(a) The testimony about which Hayes complains was not objectionable as such did not constitute a statement of opinion either as to proof or as to guilt and, thus, did not impermissibly bolster the victim’s credibility. See Najmaister v. State, 196 Ga. App. 345 (1) (a) (396 SE2d 71) (1990); Hendricks v. State, 157 Ga. App. 715, 716 (1) (278 SE2d 453) (1981).

(b) “Informed strategic decisions do not amount to inadequacy under Strickland [v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)]. The fact that appellant and his present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that appellant received representation amounting to ineffective assistance of counsel.” (Citations and punctuation omitted.) DeYoung v. State, 268 Ga. 780, 785-786 (493 SE2d 157) (1997).

Judgment affirmed.

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

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       “The ‘Golden Rule’ argument, suggesting to jurors as it does that they put themselves in the shoes of one of the parties, is generally impermissible because it encourages the jurors to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.” 75A AmJur2d, Trial, § 650, p. 260. “It is, of course, highly improper in an argument to the jury to ask that the members place themselves in the position of a party, or to compare the situation of a party with one’s own, and we disapprove it. A juror must preserve his objectivity if he is to perform his duty in rendering a fair verdict that will do justice between the parties.” Doe v. Moss, 120 Ga. App. 762, 767 (172 SE2d 321) (1969).


author: Pope, Presiding Judge.

text:
    A98A1953.
    JOINER et al. v. GOLD KIST, INC.
    (514 SE2d 39)
   Pope, Presiding Judge.

Gold East, Inc., is an agricultural cooperative that ran an egg processing facility in Florida from 1968 until 1989. Arthur Joiner, Jack Wilson and Nelle Wilson were egg producers and members of the cooperative. In 1989, Gold Kist sold the facility to Hillandale Farms. Several cooperative members then sued Gold Kist, but Joiner and the Wilsons did not join in the lawsuit. Gold Kist v. Wilson, 227 Ga. App. 848 (490 SE2d 466) (1997) (non-precedential). In 1995, Joiner, Jack Wilson and the estate of Nelle Wilson filed the instant five-count lawsuit. They appeal from the trial court’s grant of summary judgment to Gold Kist on four of the counts.

1. In two counts, Joiner and the Wilsons allege fraud by Gold Kist for having promised it would do business with them as long as they performed satisfactorily and for failing to protect their interests when it sold the plant. Joiner and the Wilsons knew of the sale in 1989 and thus should have brought fraud claims based on the sale within four years. The claims, filed six years after the sale, are now barred by the four year statute of limitation. OCGA § 9-3-31.

2. In another count, Joiner claims when he resigned from the cooperative Gold East should have paid him $175,000 as his “notified equity.” Instead, pursuant to the cooperative’s by-laws, Joiner was paid $45,000 as the present discounted value of that equity. The trial court correctly granted summary judgment on this claim because when Joiner left the cooperative he signed a release agreeing with the discounted value payment and releasing Gold Kist from any future claims. Moreover, in Gold Kist v. Wilson, 227 Ga. App. at 848-852 (1), this Court concluded that Gold Kist is entitled under its bylaws to pay resigning cooperative members the discounted present value, rather than the full face value, of their notified equity.

3. In the last count, Joiner and the Wilsons claim Gold Kist should have paid them all egg sale profits each year instead of withholding part of the profits as notified equity. The trial court properly granted summary judgment on this claim because Joiner and the Wilsons, like the plaintiffs in Gold Kist v. Wilson, gave testimony showing they understood that Gold East would not pay them 100 percent of the profits but would withhold a portion of the profits as notified equity in order to run the cooperative.

Accordingly, the trial court did not err in granting partial summary judgment to Gold Kist and the judgment must be upheld.

Judgment affirmed.

Beasley, P. J., and Ruffin, J., concur.

Decided February 23, 1999.

Gibson & Spivey, Douglas L. Gibson, for appellants.

Alston & Bird, Kenneth D. Steele, Jay D. Bennett, Richard R. Hays, David T. Markle, for appellee.