author: Birdsong, Presiding Judge. Blackburn, Judge,

text:
    A94A0617.
    HITCHCOCK v. TOLLISON et al.
    (444 SE2d 844)
   Birdsong, Presiding Judge.

This is an appeal from the judgment of the superior court in favor of appellees/plaintiffs. Appellant sold appellees certain real property and tendered appellees a warranty deed granting and conveying said property in fee simple; at the time, appellant had a mortgage on the premises that was not disclosed to appellees. The warranty deed delivered to appellees contained the following notation typed at the top: “No Title Examination Was Made In Preparation Of This Deed.” At the time of purchase, appellees executed a deed to secure debt with appellant as grantee for the purchase price of the premises. Appellees subsequently failed to make payments to appellant, allegedly due to their late discovery of the existence of a security deed previously delivered by appellant to a third-party bank. However, at the time of their quitting of the realty, some evidence of record exists that appellees were in arrear on their monthly payments, and had filed for bankruptcy. Appellees also failed to pay taxes on the premises. At the time appellees quit making payments, appellant had maintained all payments due on his security deed and there was no adverse claim pending in the courts challenging appellees’ possession of the premises under color of title in fee simple. Appellees sued for breach of the warranty of title asserting, inter alia, the breach of warranty of freedom from encumbrances and breach of warranty of right to sell; appellant counterclaimed against appellees for breach of deed covenants by failing to pay taxes. The jury rendered a verdict in favor of appellees/plaintiffs on the main claim and against appellant/cross-plaintiff on the counterclaim. Held:

1. Appellant claims the trial court erred in denying his motion for summary judgment; pretermitting this issue is whether reversible error occurred in denying appellant’s motion for directed verdict. See Division 2 below.

2. Appellant, citing Turner v. Tidwell, 141 Ga. 123 (80 SE 901); Burns v. Vereen, 132 Ga. 349 (64 SE 113); Clements v. Collins, 59 Ga. 124; Akins v. Jones, 164 Ga. App. 705 (297 SE2d 341); and McElmurray v. Marshall, 37 Ga. App. 725 (141 SE 670), contends the superior court erred in denying his motion for directed verdict. In essence appellant argues that, as a matter of law, the evidence fails to give rise to a jury issue as to breach of warranty of title, because there has been no showing appellees were forced to yield to a paramount title as “appellant paid all the payments on the outstanding security deed and the only reason the appellees lost their title was because of their own default on the security deed to appellant.” Appellees argue that a jury issue exists as to the breach of warranty of freedom from encumbrances, and that this breach occurred at the time of execution of the warranty deed by appellant to appellees as grantees and without the necessity of an actual or constructive eviction arising from a third-party claim of paramount title. (We note that in an equity case none of these parties could have appeared with spotless clean hands.)

Appellees’ citations to West v. Lee, 57 Ga. App. 873 (197 SE 75) and Cook v. Pollard, 50 Ga. App. 752 (179 SE 264) (implied full warranty of title arising from sale of personalty) are inapposite as to this issue; also inapposite are suits for breach of executory contract. See generally Walter L. Tally, Inc. v. Council, 109 Ga. App. 100 (135 SE2d 515); Keel v. Anderson, 104 Ga. App. 296 (1) (121 SE2d 505). However, in Teems v. City of Forest Park, 137 Ga. App. 733, 734 (225 SE2d 87), it was held that damages arising from a breach of warranty of title to land should be assessed in accordance with the conditions existing at the time when the covenant was entered, because “[a] breach of a covenant of warranty, if breached at all, is at least technically breached when the covenant is entered into.” In Northside Title &c. Co. v. Simmons, 200 Ga. App. 892 (409 SE2d 885), where a warranty deed was delivered notwithstanding an existing federal tax lien on the property, it was stated that “[a]t the time of this conveyance . . . the property was not free of encumbrances. Accordingly, appellee, as well as her co-tenant, would be liable to Wooster for the breach of their general warranty.” However, appellant was not, in fact, assigned the claim for breach of warranty until “[a]fter the federal tax was paid and the lien was removed.” Id. Thus, the encumbrance had been discharged before appellant was assigned the claim.

OCGA § 44-5-62, which modifies common law, provides: “A general warranty of title against the claims of all persons includes covenants of a right to sell, of quiet enjoyment, and of freedom from encumbrances.” In White &c. v. Stewart &c. Co., 131 Ga. 460 (1) (62 SE 590), the Supreme Court observed: “These sections of the code [formerly Civil Code §§ 3614 and 3617; currently OCGA §§ 44-5-62 and 44-5-64, respectively] clearly indicate that the distinction between the covenants of right to convey and of warranty, usually recognized in most jurisdictions, no longer exist in this State in so far as to what is necessary to constitute a breach of such covenants. Under the code the general warranty of title against the claims of all persons practically stands for the covenant of warranty at common law, and includes in itself what was there known as the covenant of good right to convey. This court has frequently held, that ‘In an action for the breach of a covenant of warranty of title the burden is upon the plaintiff to show eviction under a paramount outstanding title.’ . . . The' rule seems to be everywhere recognized that to constitute a breach of the covenant of warranty, or for quiet enjoyment, an eviction or equivalent disturbance by title paramount must occur, and that the mere existence of an outstanding paramount title will not constitute a breach.” See Akins, supra at 706 (2) and McElmurray v. Marshall, supra; compare Burns v. Vereen, supra at 349 (3); McMullen v. Butler & Co., 117 Ga. 845 (1) (45 SE 258) and Reid v. McCune, 30 Ga. App. 49 (116 SE 554).

Whether the existence of the prior security deed created an encumbrance rather than an outstanding title against the realty (compare definition of encumbrance in Walter L. Tally, Inc. v. Council, supra at 102), no actual eviction was necessary. Weatherly v. Parr, 72 Ga. App. 883, 886 (35 SE2d 381). However, a showing of mere existence of an encumbrance has been held to be insufficient. In Cheatham v. Palmer, 176 Ga. 227, 235 (167 SE 522), it was held that, under the statutes of this state (OCGA §§ 44-5-62; 44-5-63), “there is embraced in the term general warranty, by implication, certain specific warranties which the common law required to be express. In order to recover on a warranty of seizin, the loss of seizin (that is, eviction,) had to be proved. . . . [0]n a covenant against encumbrances, the only condition precedent to a right of action [is] the outstanding of a valid encumbrance at the date of the covenant affecting the property conveyed, and its discharge by the covenantee.” (Emphasis supplied.) Accord Sawyer Coal &c. Co. v. Kinnett-Odom Co., 192 Ga. 166, 170 (4) (14 SE2d 879) (actual eviction not necessary if plaintiff in good faith discharged the encumbrance or acquired a paramount title presently about to be enforced against him); State Mut. Ins. Co. v. McJenkin Ins. &c. Co., 86 Ga. App. 442, 443 (1) (71 SE2d 670), overruled on other grounds, Teems v. City of Forest Park, supra at 734 (1); see Weatherly v. Parr, supra. The record reveals no evidence, direct or indirect, that appellees ever discharged an alleged encumbrance or acquired an outstanding paramount title that was about to be enforced against them in regard to the property at issue. Accordingly, the trial court erred in denying appellant’s motion for directed verdict. Cheatham v. Palmer, supra; Sawyer Coal &c. Co. v. Kinnett-Odom Co., supra; State Mut. Ins. Co. v. McJenkin Ins. &c. Co., supra; Weatherly v. Parr, supra; compare Kinzy v. Waddell, 203 Ga. 689, 691 (1) (47 SE2d 872) (general warranty deed as to title delivered at time outstanding loan deed executed by grantor existed) with Osburn v. Pritchard, 104 Ga. 145 (30 SE 656) (general warranty deed as to title delivered at time outstanding mortgage executed to third parties by another person existed).

In view of this holding, the other enumerations of error by appellant need not be addressed.

Judgment reversed.

Cooper, J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I must concur specially with the majority as we are constrained to follow our precedent requiring plaintiff to establish an actual or constructive eviction under paramount outstanding title prior to an action for breach of warranty of title. See Akins v. Jones, 164 Ga. App. 705 (297 SE2d 341) (1982); McElmurray v. Marshall, 37 Ga. App. 725 (141 SE 670) (1927); Burns v. Vereen, 132 Ga. 349 (64 SE 113) (1909); McMullen v. Butler & Co., 117 Ga. 845 (45 SE 258) (1903); Reid v. McCune, 30 Ga. App. 49 (116 SE 554) (1923). Such a requirement is not contemplated by the statute which provides “[i]n actions for breach of warranty of title, the burden of proof is on the plaintiff except in cases where outstanding encumbrances have been paid off or possession has been yielded as a consequence of legal proceedings of which the warrantor had notice and an opportunity to defend.” (Emphasis supplied.) OCGA § 44-5-64. Furthermore, we have previously determined that “[a] breach of a covenant of warranty, if breached at all, is at least technically breached when the covenant is entered into and the damages are therefore to be assessed in accordance with the conditions as they existed at that time.” Teems v. City of Forest Park, 137 Ga. App. 733, 734 (225 SE2d 87) (1976). If the covenant is breached at the time it is entered, the additional element developed by the courts, i.e., constructive or actual eviction, is unnecessary and merely increases damages which may or may not be recoverable. See id.

Decided May 26, 1994

Reconsideration denied June 8, 1994

Joel D. Burns, for appellant.

D. Wayne Rogers, for appellees.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A94A0717.
    CHARLES S. MARTIN DISTRIBUTING COMPANY, INC. et al. v. BERNHARDT FURNITURE COMPANY.
    (445 SE2d 297)
   Johnson, Judge.

Bernhardt Furniture Company sold furniture on an open account to Charles S. Martin Distributing Company, Inc. (CSM). Bernhardt sued CSM and William Martin, as personal guarantor, claiming indebtedness on the account in the principal amount of $146,659, plus pre-judgment interest. Bernhardt and Martin filed cross-motions for summary judgment. The trial court granted partial summary judgment to Bernhardt, holding that there is no genuine issue of material fact that both CSM and Martin are indebted to Bernhardt in the principal amount of $145,157. The court denied Bernhardt’s motion as to the further amount of principal claimed and the pre-judgment interest sought. The court denied Martin’s motion for summary judgment. CSM and Martin jointly appeal.

1. Martin contends that the court erred in denying his motion for summary judgment because he did not sign the personal guarantee of CSM’s debt and therefore it does not satisfy the statute of frauds. The record contains a one-page document dated April 24, 1978, and entitled, “PERSONAL GUARANTEE.” No signatures appear on that page, but the last line of the document states, “The guarantor hereby claims the benefit of all Homestead Exemption laws. See addendum attached hereto.” Attached to the personal guarantee is a document labeled, “ADDENDUM TO PERSONAL GUARANTEE DATED APRIL 24, 1978.” That addendum provides, “By accepting this Guaranty of Individual, Bernhardt Furniture Company will evidence its agreement that if Bernhardt Furniture Company should ever obtain judgment on the obligations evidenced by this Agreement, Bernhardt Furniture Company will not initiate levy and execution on the residence of the undersigned and the contents therein at 1984 River Forest Road, N.W., Atlanta, Ga. as part of its efforts to obtain satisfaction of its judgment.” Martin admits that he signed this addendum, but claims he does not recall seeing the guarantee until after signing the addendum because the papers were not attached to each other.

The statute of frauds requires that a promise to answer for the debt of another be in writing and signed by the promisor. OCGA § 13-5-30 (2). However, “[t]he statute of frauds does not require that all the terms of the contract should be agreed to or written down at one and the same time, nor on one piece of paper; but where the memorandum or the bargain is found on separate pieces of paper, and where these papers contain the whole bargain, they form together such a memorandum as will satisfy the statute, provided the contents of the signed paper make such references to the other written paper or papers as to enable the court to construe the whole of them together as containing all the terms of the bargain.” (Citations and punctuation omitted.) Industrial Welding &c. v. CIT Corp., 157 Ga. App. 611 (278 SE2d 50) (1981); see also JAM Bonding Co. v. State of Ga., 179 Ga. App. 82, 83 (345 SE2d 87) (1986). The papers in the instant case make reference to each other; the addendum signed by Martin refers to the personal guarantee of April 24, 1978, and that guarantee cites the attached addendum. The trial court was therefore enabled to construe the papers together as containing all the terms of the personal guarantee. See Beckworth v. Beckworth, 255 Ga. 241, 245 (3) (a) (336 SE2d 782) (1985); Schroeder v. Hunter Douglas, Inc., 172 Ga. App. 897, 898-899 (2) (324 SE2d 746) (1984).

Martin cannot avoid those terms by claiming that he failed to see the entire document he signed. “There are few rules of law more fundamental than that which requires a party to read what he signs and to be bound thereby. It is well established that a party who can read must read, or show a legal excuse for not doing so, such as an emergency which excused the failure to read; or fraud of the other party not merely as to what is in the document, but by some trick or device which actually prevented him from reading it.” (Citations and punctuation omitted.) Fincher v. Dempsey, 209 Ga. App. 222, 223 (433 SE2d 78) (1993). The addendum signed by Martin plainly incorporated by reference the personal guarantee, which has a clear and ascertainable meaning. See generally Williams Tile &c. Co. v. RA-LIN & Assoc., 206 Ga. App. 750 (1) (426 SE2d 598) (1992). We conclude that Martin also had a duty to read the personal guarantee incorporated by the paper he signed. Because there is no evidence that Bernhardt prevented Martin from reading the personal guarantee and its addendum, or of any other legal excuse for Martin’s failure to read, he is bound by his signature. McCoy v. State Farm Ins. Co., 199 Ga. App. 675 (405 SE2d 743) (1991); compare Mallard v. Jenkins, 179 Ga. App. 582 (347 SE2d 339) (1986). The trial court therefore not only properly denied Martin’s motion for summary judgment, but also properly granted Bernhardt’s motion for summary judgment as to Martin’s liability, finding that there is no genuine issue of material fact that Martin personally guaranteed CSM’s debt. OCGA § 9-11-56.

2. Martin contends that the court erred in denying his motion for summary judgment because there was a novation of the open account agreement between Bernhardt and CSM without his consent. “Any change in the nature or terms of a contract is called a ‘novation’; such novation, without the consent of the surety, discharges him.” OCGA § 10-7-21. Martin argues that Bernhardt’s attempt to recover interest in the instant lawsuit has changed an alleged oral agreement that CSM is not required to pay interest on the open account. This argument is without merit. Bernhardt’s mere claim for interest, as provided by OCGA § 7-4-16, in no way changes the terms of the account agreement. Those terms, whatever they may be, are still in effect despite this claim. The trial court properly denied Martin’s motion for summary judgment on this ground.

3. CSM and Martin complain that the court erred in partially granting Bernhardt’s motion for summary judgment because Bernhardt failed to rebut their affirmative defenses. “[Although it is permissible to allege defenses in a conclusory format, where a plaintiff . . . files a motion for summary judgment, and evidence is offered on the issue, if the plaintiff establishes a prima facie right to summary judgment, a defendant may not rest upon conclusory allegations or defenses in his pleadings, but must come forward with facts showing a genuine issue remains for trial.” (Citation and punctuation omitted.) Thomasson v. Pineco, Inc., 173 Ga. App. 794, 796 (328 SE2d 410) (1985). Bernhardt offered evidence establishing a prima facie right to summary judgment. Because CSM and Martin have not come forward with any facts showing a genuine issue as to their affirmative defenses, the court did not err in granting partial summary judgment to Bernhardt. Burton v. Key Capital Corp., 185 Ga. App. 394 (364 SE2d 296) (1987).

4. CSM and Martin contend that the court erred in granting partial summary judgment prior to ruling on CSM’s pending motion to compel Bernhardt to respond more fully to four interrogatories. “Although the grant of summary judgment while a motion to compel discovery is pending is generally not condoned, where, as here, the disallowed discovery would add nothing of substance to the party’s claim, reversal is not required. [Cit.]” Tuck v. Marriott Corp., 187 Ga. App. 567, 569 (2) (370 SE2d 795) (1988). Moreover, although CSM and Martin raised this issue in their responses to the motion for summary judgment, the record does not reveal that they ever requested a continuance so the court could rule on the motion to compel prior to ruling on Bernhardt’s motion for summary judgment. Rogers v. Coronet Ins. Co., 206 Ga. App. 46, 52 (5) (424 SE2d 338) (1992). We find no reversible error.

Decided May 27, 1994

Reconsideration denied June 8, 1994.

Kitchens, Kelley & Gaynes, Mark A. Kelley, for appellants.

Stokes, Lazarus & Carmichael, Richard J. Joseph, for appellee.

5. CSM and Martin assert that the court erred in granting summary judgment to Bernhardt as to the principal amount of the debt because there is a genuine issue of material fact as to the amount of CSM’s set-off claim. CSM, however, has not properly asserted a set-off claim. The assertion of a set-off against the amount owed is not a defense, but is a claim for affirmative relief. Russell v. KDA, Inc., 206 Ga. App. 397, 399-400 (4) (425 SE2d 406) (1992). CSM improperly asserted set-off in its answer to the complaint solely as a defense, not as a claim for affirmative relief. Because CSM has not properly asserted a claim for affirmative relief based on set-off, there can be no genuine issue of material fact as to the amount of set-off owed by Bernhardt to CSM. Martin and CSM jointly responded to an interrogatory that the principal amount of the debt owed to Bernhardt is $145,157, notwithstanding any alleged set-offs. Based on this response, the trial court correctly granted summary judgment to Bernhardt in the amount of $145,157 on its claim.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


author: Cooper, Judge.

text:
    A94A0731.
    THOMAS et al. v. SHAHAN.
    (444 SE2d 851)
   Cooper, Judge.

This appeal arises out of an automobile collision between a car driven by plaintiff Sara Thomas and a car driven by defendant. Sara Thomas and her husband sued defendant for damages resulting from the collision. The jury returned a verdict in favor of plaintiffs. Dissatisfied with the verdict amount, plaintiffs appeal from the judgment entered on the verdict and the denial of their motion for new trial.

Mrs. Thomas testified that she was traveling north on Highway 53 in Floyd County when defendant’s car, traveling south, came over on to her side of the road and collided with her car. She stated that she first saw the other car when it was in her lane, and her initial reaction was to attempt to get out of the way by swerving to the left into defendant’s lane but she was unable to avoid defendant’s car. Melissa Dowdy, a passenger in Mrs. Thomas’ car at the time of the collision, testified that when she first saw defendant’s car it was on their side of the road, and Mrs. Thomas tried to get over to avoid the car but was unable to do so. The officer who first arrived at the scene of the accident found the cars in the middle of the highway straddling the centerline. He examined the position of the cars, skid marks and other physical evidence and determined that the driver’s front corner of defendant’s car struck the passenger’s front corner of Mrs. Thomas’ car. The officer also observed that the skid marks found on Mrs. Thomas’ side of the road matched the tread of the tires on defendant’s car. The officer also explained that the debris from the accident was greater on the defendant’s side of the road because the slope of the curve caused the debris to flow more to that side. The officer did state that at the point of impact it was possible that Mrs. Thomas’ car was more on defendant’s side of the road than defendant’s car was on her side of the road. However, the officer concluded that the accident occurred because defendant’s car was on the wrong side of the road. Defendant testified but had no memory of the accident.

1. Plaintiffs contend the trial court erred in charging the jury on comparative and contributory negligence. “The law is well established that where there is no evidence at all of any negligence on the part of the plaintiff, an instruction on this subject is error.” (Citations and punctuation omitted.) Taylor v. Haygood, 113 Ga. App. 30, 33 (2) (147 SE2d 48) (1966). “A review of the record demonstrates that [defendant] produced no evidence to authorize a finding that, in the exercise of ordinary care, [Mrs. Thomas] could have avoided the collision after she saw or should have seen that [defendant] . . . was crossing [plaintiff’s] lane of traffic. It follows that it [was] error to give any charge regarding [Mrs. Thomas’] negligence.” (Citations and punctuation omitted.) Leonard v. Miller, 207 Ga. App. 602, 603 (428 SE2d 646) (1993); see also Earl v. Edwards, 117 Ga. App. 559 (2) (161 SE2d 438) (1968). Defendant’s reliance on Garner v. Driver, 155 Ga. App. 322 (270 SE2d 863) (1980) is misplaced. In that case there was at least some evidence that plaintiff was negligent in causing the head-on collision. See Leonard, supra. Accordingly, the trial court’s charge on contributory and comparative negligence constitutes reversible error.

Decided May 27, 1994

Reconsideration denied June 8, 1994

James R. Crawford, York, McRae & York, Michael D. McRae, for appellants.

Rogers, Magruder, Sumner & Brinson, J. Clinton Sumner, Jr., Clay M. White, for appellee.

2. In their second enumeration of error, plaintiffs argue the trial court erred in charging the jury on sudden emergency. The trial judge charged the jury as follows: “One who is confronted with a sudden emergency which was not created by one’s own fault and is without sufficient time to determine accurately and with certainty the best thing to be done is not held to the same accuracy of judgment as would be required of that person if that person had more time for deliberation. The requirement is that the person act with ordinary care under all the particular facts and circumstances surrounding the situation.” Plaintiffs objected to the charge on the ground that it was not authorized by the evidence. “The defense of emergency is not available unless the evidence shows that there has been a sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought so that negligence in his choice might be attributable not to lack of care but to lack of time to assess the situation.” (Citations and punctuation omitted.) Robinson v. MARTA, 197 Ga. App. 628, 629 (2) (399 SE2d 252) (1990). Defendant requested the charge on sudden emergency. However, the evidence reveals that any emergency which existed was attributable to him, therefore the charge was not applicable to the defendant’s situation. See Green v. Knight, 153 Ga. App. 183 (2) (264 SE2d 657) (1980). Although the charge can be applicable to the issue of comparative negligence, see Robinson, supra, there is no issue of comparative negligence in this case. See Division 1. Consequently, we conclude that the charge was not authorized by the evidence, and the trial court erred in giving the charge.

3. We have reviewed plaintiffs’ remaining enumerations of error regarding the admission of testimony of certain lay witnesses. We find no error.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur in judgment only.


author: Birdsong, Presiding Judge.

text:
    A94A1124.
    CONLEY et al. v. GALLUP.
    (445 SE2d 275)
   Birdsong, Presiding Judge.

Plaintiffs appeal the adverse verdict and judgment in this medical malpractice case involving the contention that defendant negligently sutured deceased plaintiff’s bladder while performing a radical hysterectomy as treatment for her advanced cancer of the cervix, and thereby caused a fistula which leaked urine through the vagina, leaving the deceased plaintiff incontinent. She died from cancer which evidence indicated had metastasized before defendant performed the radical hysterectomy.

Appellants contend the trial court erred in refusing to allow evidence from defendant’s expert witnesses that they were initial contributors of $1,500 to a medical malpractice insurer, Medical Association of Georgia (MAG), and that they were insured by MAG and thus had a financial interest in the case. A second, related enumeration contends the trial court erred in refusing to allow impeachment of a witness by prior inconsistent statement as to his knowledge whether defendant was represented by a MAG attorney and was a policyholder in MAG. Held:

Appellee contends there is no evidence in the record that he was insured by MAG. Even assuming appellant could have shown by thorough cross-examination that defendant was insured by MAG, and assuming that there is evidence that any of defendant’s witnesses were insured by MAG and were initial contributors to MAG, and assuming further that related matters could be proved by a prior inconsistent statement, the trial court did not err in refusing to admit such evidence.

“We adhere to the rule that generally liability or no-fault insurance coverage of a litigant is not admissible in evidence, and that unnecessary disclosure of such fact is ground for mistrial or reversal. [Cits.]” Goins v. Glisson, 163 Ga. App. 290, 292 (292 SE2d 917). See Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269). “ ‘The rule that the plaintiff be allowed the right of a thorough and sifting cross-examination must be balanced against the rule that irrelevant matters of insurance coverage should be excluded from evidence. In the interest of justice, the matter of insurance which is not a germane issue, should be kept out.’ [Cits.] . . . [T]o accept [appellant’s argument] would risk injection of the existence of liability insurance into every case in which a defendant doctor or hospital is supported by expert testimony directly or indirectly procured by their insurer.” Thomas v. Newnan Hosp., 185 Ga. App. 764, 767 (365 SE2d 859), cert. denied; see Atlanta Obstetrics &c. v. Abelson, 195 Ga. App. 274, 281 (8) (392 SE2d 916). Examination of witnesses and regulation of the scope of cross-examination are within the trial court’s sound discretion and this discretion will not be controlled unless it is manifestly abused. Thomas, supra at 769.

Decided May 12, 1994

Reconsideration denied June 8, 1994

James N. Finkelstein, for appellants.

Hull, Towill, Norman & Barrett, Patrick J. Rice, Robert A. Mullins, for appellee.

The “financial interest,” if any, of the defendant’s witnesses in defendant’s liability insurer was not such as to render this evidence so much more material than prejudicial as to warrant admitting it in evidence in this case. We find no manifest abuse of discretion .by the trial court’s evidentiary ruling complained of on appeal. Bentley v. B. M. W., 209 Ga. App. 526 (433 SE2d 719) is inapposite to this case.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


author: Blackburn, Judge.

text:
    A94A1183.
    PETERS v. THE STATE.
    (445 SE2d 290)
   Blackburn, Judge.

Appellant, Keith Peters, was convicted in a bench trial of possession of marijuana with intent to distribute. In his sole enumeration of error, Peters contends the trial court erred in denying his motion to suppress. Specifically, Peters asserts the affidavit in support of the search warrant failed to establish probable cause because it contained falsehoods and omissions thereby misleading the magistrate as to the reliability of a confidential informant. We agree and reverse.

The only evidence presented to the magistrate in support of issuance of the warrant was the affidavit. The affidavit provides in pertinent part: “Within Thirty-Six (36) hours of January 27, 1993, affiant was contacted by S/A [Special Agent] Pete Stewart with the GBI. S/A Stewart stated that he received information from a confidential informant (Cl) within seventy-two (72) hours of January 27, 1993. Cl has in the past month observed Keith Peters possessing and selling marijuana from his residence at 422 Walker Dr., Monroe, Ga. This Cl also stated it had an occasion to have a conversation with Keith Peters within the past thirty-six (36) hours of January 27, 1993. During that conversation Keith Peters told the Cl he had marijuana at his residence for sale. This Cl has supplied information to S/A Pete Stewart of the GBI within the past three (3) months that has led to the seizure of a quantity of marijuana. Keith Peters was unaware this conversation would be repeated to law enforcement by the CL The Cl is a mature adult and is gainfully employed.” (Emphasis supplied.) The affidavit further provides that within the last 12 months the affiant and another police officer had received numerous complaints from citizens that Peters was selling marijuana from his residence on Walker Drive, and that through independent investigation the affiant established the location and inhabitants of the residence in question.

At Peters’ suppression hearing, the evidence established that the confidential informant had not acted as a confidential informant in the past and that the only information he provided to law enforcement officers leading to the seizure of marijuana was information which led to the seizure of his own marijuana on January 25,1993. On that date, Special Agent Stewart, armed with a search warrant, went to the informant’s residence, knocked on the door, and told the informant he had information that there was marijuana in the residence. The informant then consented to a search of his residence and took Agent Stewart to a safe in his bedroom where he kept his marijuana and opened the safe. The informant was arrested and asked to cooperate with law enforcement, and he was told his cooperation would be made known to the district attorney. The informant then provided the information which is the basis of the affidavit. Subsequently, the informant’s identity was discovered by the defense.

Peters contends the statement in the affidavit regarding the previous seizure of marijuana and the omission of information regarding the seizure, arrest, and cooperation of the confidential informant constitute false statements and omissions made knowingly or with reckless disregard for the truth. Consequently, Peters argues that under the authority of Franks v. Delaware, 438 U. S. 154 (98 SC 2674, 57 LE2d 667) (1978), the perjured testimony cannot be used to establish probable cause, and therefore, the search warrant is invalid. See Nutter v. State, 162 Ga. App. 349 (291 SE2d 423) (1982).

We agree with Peters and find the statement and omissions complained of were knowingly false or made with reckless disregard for the truth and were essential to the establishment of probable cause. See Redding v. State, 192 Ga. App. 87 (383 SE2d 640) (1989); Daniels v. State, 183 Ga. App. 651 (359 SE2d 735) (1987). In Redding, this Court adopted the rule that once a court determines an affidavit contains false statements or omissions as set out in Franks, “the false statements be deleted, the omitted truthful material be included, and the affidavit be reexamined [sic] to determine whether probable cause exists to issue a warrant.” 192 Ga. App. at 88. In the case at bar, we find that if the affidavit included all the information regarding the seizure of the informant’s marijuana and his subsequent arrest and cooperation with authorities, it would be insufficient to establish probable cause.

Decided May 26, 1994

Reconsideration denied June 8, 1994

Bruce S. Harvey, Pete C. Whitlock, Jr., for appellant.

Alan A. Cook District Attorney, W. Kendall Wynne, Jr., Assistant District Attorney, for appellee.

“Under the standard set forth by the United States Supreme Court in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), probable cause may be predicated on an informant’s tip only if, under the ‘totality of the circumstances,’ including the ‘veracity’ and ‘basis of knowledge’ of the informant, there is a ‘fair probability’ that contraband or evidence of a crime will be found in a particular place. While establishment of the informant’s veracity and basis of knowledge is no longer an absolute requirement since Gates, veracity and basis of knowledge are still major considerations in the probable cause analysis, and this court continues to hold that an affidavit submitted in support of a search warrant must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant.” (Citations and punctuation omitted.) State v. Bryant, 210 Ga. App. 319, 320 (436 SE2d 57) (1993).

We find the information regarding the seizure of the informant’s marijuana and his subsequent arrest and cooperation with legal authorities does nothing to support, but rather vitiates, a finding of reliability of the informant. Additionally, any corroborating facts set out in the affidavit, including the affiant’s corroborating statements regarding the inhabitants of the residence in question and its location, were insufficient to remedy this reliability defect. See Bryant, 210 Ga. App. at 321. Accordingly, the trial court erred in denying Peters’ motion to suppress.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.

       We reject the State’s argument that the omissions were not a deliberate falsehood or reckless disregard for the truth because the affiant was trying to conceal the informant’s identity. The record is devoid of any evidence that the affiant was trying to conceal the informant’s identity. Additionally, we find the affiant could have provided the magistrate with information that the marijuana seized was the informant’s and details of the subsequent arrest and cooperation of the informant without jeopardizing his confidentiality.


author: Beasley, Presiding Judge.

text:
    A93A0941.
    HEWETT v. KALISH.
    (447 SE2d 344)
    Decided June 8, 1994.

      Edward H. Kellogg, Jr., Kam & Ebersbach, Michael G. Kam, for

      Nall, Miller, Owens, Hocutt & Howard, Robert L. Goldstucker, for appellee.
   Beasley, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, Hewett v. Kalish, 264 Ga. 183 (442 SE2d 233) (1994), the decision in Hewett v. Kalish, 210 Ga. App. 584 (436 SE2d 710) (1993) is hereby vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

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


author: Judge Harold R. Banke.

text:
    A94A0241.
    STEINBERG v. CITY OF ATLANTA.
    (444 SE2d 873)
   Judge Harold R. Banke.

Plaintiff Sam Steinberg was injured in the parking lot of the Atlanta Civic Center after a performance of the Atlanta Ballet when he tripped and fell over a rope which had been strung between a fixed post and a traffic barrel for the purpose of controlling traffic. Plaintiff sustained deep skin abrasions and lacerations which required surgery and filed a negligence action against the City of Atlanta. At trial, at the close of plaintiff’s case and again at the close of all the evidence, defendant moved for a directed verdict on the grounds of governmental immunity and the lack of ante litem notice. In both instances, the court reserved its ruling on the motions until after the jury returned its verdict.

The court charged the jury solely on the question of negligence, and the jury returned a verdict in favor of plaintiff for $10,000. The court then charged the jury on the question of governmental immunity, and the jury returned a verdict for defendant, specifically finding that the Civic Center was operated by defendant primarily for public service. The trial court concluded that the jury’s second verdict was tantamount to a determination that the operation of the facility was a governmental function of the City of Atlanta. Therefore, the court construed the verdict, taken in two parts, to be a verdict for defendant, finding that were it not for the governmental defense, plaintiff would be entitled to a verdict for $10,000. The court explained that this unusual procedure was employed in the event an appellate court determined the trial court erred in instructing the jury on governmental immunity, there would be no need for a new trial. The court then entered judgment on the verdict in favor of defendant. After entry of judgment, the court ruled on defendant’s motion for directed verdict. Finding that the evidence demonstrated that the Civic Center was operated primarily for the public benefit, the court held, as a matter of law, that the operation of the Civic Center is a governmental function of the City of Atlanta, and therefore, defendant was immune to suit for the negligence of its employees in the performance of that function. Accordingly, a directed verdict was entered in favor of defendant on governmental immunity. On the question of ante litem notice, the court denied defendant’s motion for directed verdict. This appeal followed, plaintiff enumerating as error the trial court’s determination that defendant was immune from suit based on sovereign immunity, as a matter of law, and the grant of defendant’s motion for directed verdict after the jury returned a verdict in favor of plaintiff for $10,000.

1. We will first consider plaintiff’s contention that the court had no authority to direct a verdict after the jury returned a verdict in his favor. Plaintiff argues the court should have either granted the motion for directed verdict prior to the jury’s verdict or, after the jury returned a verdict in favor of plaintiff, entered judgment on the verdict in favor of plaintiff and then granted defendant’s motion for judgment notwithstanding the verdict, if one had been properly made by defendant. We disagree.

OCGA § 9-11-50 (b) “allows the trial court to defer ruling on a motion for directed verdict and submit the case to the jury subject to a later determination of the legal questions raised by the motion. [The statute] also requires a party who has moved for a directed verdict to file a motion for judgment notwithstanding the verdict within 30 days after entry of the judgment or, if a verdict was not returned, within 30 days after the jury has been discharged. However, [Rule 50] (b) does not by its express terms require that a motion for judgment notwithstanding the verdict be filed in order to preserve the jurisdiction of the trial court to rule on a motion for directed verdict after the verdict itself has been returned.” Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 421 (1) (249 SE2d 224) (1978). Thus, the trial court did not err in deferring its ruling on the motion for directed verdict until after the verdict was returned. See Brandvain v. Ridgeview Institute, 188 Ga. App. 106 (1a) (372 SE2d 265) (1988).

2. Plaintiff also contends the court erred in ruling that defendant was immune from suit based upon the doctrine of sovereign immunity as a matter of law. Plaintiff argues that there was ample evidence that the Civic Center was maintained as a revenue enhancing facility, in addition to proof of defendant’s negligence, to support the jury’s award of $10,000 to plaintiff in the first verdict. We note that the first verdict represented a determination of the negligence issues only and could not constitute a verdict of the issue of governmental immunity since the first jury charge did not include instruction regarding defendant’s maintenance of the Civic Center primarily as a source of revenue.

“Sovereign immunity is not an affirmative defense (see OCGA § 9-11-8 (c)) that must be established by the party seeking its protection. Instead, immunity from suit is a privilege that is subject to waiver by the State, and the waiver must be established by the party seeking to benefit from the waiver. [Cit.]” Ga. Dept. of Human Resources v. Poss, 263 Ga. 347 (1) (434 SE2d 488) (1993). A municipality which operates a facility “primarily as a source of revenue” rather than for the benefit of the public loses its governmental immunity. Cleghorn v. City of Albany, 184 Ga. App. 732, 735-736 (1) (362 SE2d 386) (1987). “ ‘Whether the enterprise turns a profit, or only an incidental profit (cit.) is not the controlling point; what is significant is the character of the (enterprise) as “primarily a source of revenue” rather than being used primarily for the benefit of the public regardless of incidental generation of revenues.’ [Cit.]” City of Atlanta v. Chambers, 205 Ga. App. 834, 836 (2) (424 SE2d 19) (1992).

The evidence demonstrated that the Civic Center is operated to provide a facility for community organizations and public recreation at a reasonable cost; that the facility operates at an annual loss and is subsidized by the City of Atlanta; that the Civic Center has never generated a profit; that the facility is leased at rates set by the Atlanta City Council for non-profit and commercial entities; that fee waivers have been granted to selected non-profit groups; and that the majority of the activities booked are community oriented. Witnesses also testified that the Civic Center was never intended to generate profit. On the other hand, plaintiff points to evidence adduced at trial which showed that on occasion, the Civic Center is rented to private performers for the purpose of staging fee-paying, ticketed performances for which they are charged commercial rates and argues that such evidence demonstrates that the facility is operated to generate revenue for the city. Plaintiff also contends that although the evidence indicated that the Civic Center did not make a profit, the facility operates in the commercial marketplace and there is no prohibition in the city charter preventing the facility from maximizing its revenues and making a profit.

“ ‘A directed verdict is authorized “if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdiet.” OCGA § 9-11-50 (a). . . . “Where . . . plaintiff simply fails to prove his case, the direction of a verdict is proper.” [Cit.]’ [Cits.]” Neal v. Miller, 194 Ga. App. 231, 232-233 (390 SE2d 125) (1990). The fact that the Civic Center is leased on occasion by commercial entities at commercial rates does not alter “the over-all character of the [Civic Center as a facility] primarily for the benefit of the public, rather than primarily as a source of revenue for the City.” Chambers, supra at 836. The revenue cited by plaintiff, which is derived by the booking of certain commercial acts at commercial rates, is “incidental” in view of the evidence that the Civic Center operates at an annual loss and is subsidized by defendant. Thus, plaintiff failed to prove defendant waived governmental immunity, and the trial court did not err in granting a directed verdict as a matter of law.

Decided June 8, 1994.

Decker & Hallman, Richard P. Decker, W. Winston Briggs, for appellant.

Kendric E. Smith, Sarah I. Mills, Michael V. Coleman, Joe M. Harris, Jr., for appellee.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Johnson, Judge. Beasley, Presiding Judge,

text:
    A94A0593.
    GONZALEZ v. WELLS.
    (445 SE2d 332)
   Johnson, Judge.

This appeal raises the issue of the extent to which a plaintiff may inject the subject of insurance into his or her voir dire of the jury. Judgment was entered on a jury verdict in favor of Terrence Wells and against Miguel Gonzalez for $1,460 compensatory and $25,000 punitive damages in this personal injury action arising from an automobile accident. During a pre-trial conference, citing the prejudicial effect of mentioning “insurance” to the jury, Gonzalez moved in limine to prevent the qualifying of the jury as to his or any other insurance carrier. After hearing argument from counsel representing both parties on the motion, the trial court ruled that, other than the court qualifying the panel as to the insurance company and, if necessary, asking a follow-up question or two if any jurors stated on their forms that they worked for Gonzalez’ insurance carrier, there would be no inquiries into insurance. During voir dire, the judge asked: “Are any of you either stockholders, officers, directors, agents or employees of the Safeway Insurance Company?” Apparently no one responded, since the subsequent questions were on a different topic. Sometime later, Wells’ counsel asked: “Do any of you own or operate a vehicle?” All jurors raised their hands. Wells’ counsel then asked: “Is that vehicle insured?” All jurors again raised their hands. Wells’ counsel further inquired: “And we already asked as a group, no one is insured by Safeway; is that correct?” At that point, Gonzalez’ counsel objected and moved for a mistrial. In response, the court stated to Wells’ counsel (at a bench conference): “You are not allowed to ask any questions about insurance unless one of the persons indicates here they work for an insurance company.” The court then remarked to the jury: “Ladies and gentlemen, you are to disregard that last question and put it completely out of your mind.”

1. Gonzalez contends that the trial court erred in qualifying the jury to his insurance carrier. We disagree. Generally, liability or no-fault insurance coverage of a litigant is not admissible in evidence, and unnecessary disclosure of such fact is ground for mistrial or reversal. Goins v. Glisson, 163 Ga. App. 290, 292 (1) (292 SE2d 917) (1982). On the other hand, it is well-settled that it is proper for the trial court to qualify prospective jurors with regard to relationships they may have with any insurance carrier having a financial interest in the outcome of the case. Franklin v. Tackett, 209 Ga. App. 448, 450 (2) (433 SE2d 710) (1993); Crosby v. Spencer, 207 Ga. App. 487, 490 (6) (428 SE2d 607) (1993). We find that the question asked by the court was proper given the holdings of this court.

2. Gonzalez also argues that the trial court erred in not granting his motion for mistrial when Wells’ counsel violated the court’s order regarding additional questions on the subject of insurance. We agree. The trial court clearly stated that no other insurance inquiries would be permitted. Notwithstanding that ruling, Wells’ counsel proceeded to ask the jurors if they had automobile insurance and also whether they were insured by Safeway (Gonzalez’ insurance carrier). In continuing to make inquiries on the subject of insurance, Wells’ counsel clearly violated the court’s order on Gonzalez’ motion in limine. This is significant not only because counsel violated a court order, but also because by asking more questions, including questions specifically regarding automobile insurance, counsel increased the danger of prejudicially impressing upon the jurors the fact that the defendant had liability insurance. See Corley v. Harris, 171 Ga. App. 688 (1) (320 SE2d 833) (1984). Compare Parsons v. Harrison, 133 Ga. App. 280 (211 SE2d 128) (1974) (no prejudicial error where counsel asked two questions directly related to the questions propounded by the court and where the trial court had made no prior ruling prohibiting insurance questions). “We have repeatedly adhered to the rule that evidence of insurance coverage is so prejudicial by nature that it should not be admitted unless it is clearly relevant. . . . The prejudice lies in the infectious nature of collateral source evidence, contaminating as it does the issue of loss with the issues of injury and liability. Such evidence is prejudicial because by its nature its effect is not self-limiting, but it laps over into other considerations.” (Emphasis deleted; citations and punctuation omitted.) McKin v. Gilbert, 208 Ga. App. 788, 790 (1) (432 SE2d 233) (1993). “We cannot say that [counsel’s] deliberate violation of the trial court’s order did not influence the jury’s verdict.” (Citations omitted.) Scott v. Chapman, 203 Ga. App. 58, 59 (1) (416 SE2d 111) (1992). Furthermore, “[the court] had previously qualified the jury panel as to the carrier by asking if any member was an officer or stockholder or related to stockholders thereof, and that is all that was required. ‘While it is the duty of the court to qualify the jury as to possible relationships to the insurance carrier or carriers involved, there would seem to be no reason for doing it more than once.’ ” (Citations omitted.) Widener v. Mitchell, 137 Ga. App. 730, 732 (5) (224 SE2d 868) (1976). We note that “the general rule against admitting evidence of insurance or unnecessarily referring to it in a charge has not relaxed but has strengthened.” Collins v. Davis, 186 Ga. App. 192, 195 (1) (366 SE2d 769) (1988). Accordingly, a new trial must be granted.

Judgment reversed and case remanded.

Beasley, P. J., and Andrews, J., concur specially.

Beasley, Presiding Judge,

concurring specially.

I concur fully in Division 2 and in the judgment. With respect to Division 1, I hold to the special concurrence in Franklin v. Tackett, 209 Ga. App. 448, 450 (433 SE2d 710) (1993).

I agree with the statement made by Presiding Judge, thereafter Justice, Hall in his concurring opinion in Young v. Carter, 121 Ga. App. 191, 193 (173 SE2d 259) (1970), that “[t]he effect of the rule prohibiting reference to liability insurance is . . . nullified by having the trial judge qualify the jury as to the defendant’s liability insurer.” Evidence of insurance is prejudicial because, at the least, it contaminates “the issue of loss with the issues of injury and liability.” Collins v. Davis, 186 Ga. App. 192 (366 SE2d 769) (1988). See also 2 Wigmore, Evidence, § 282a (3) (Chadbourn rev. 1979), which is quoted in Denton v. Con-Way Southern Express, 261 Ga. 41, 42 (402 SE2d 269) (1991). As stated in Denton, “[s]uch evidence is highly prejudicial and it can influence the entire case, no matter which side attempts to introduce it.”

By qualifying the jury with respect to a specific insurance carrier, it gains knowledge that the carrier is connected to the case, even though during the course of the trial no evidence of that fact is offered. And because the subject is introduced during the process of determining the prospective jurors’ impartiality, they acquire knowledge that their connection to the carrier is important to that question. But it is only made so by the asking of the question in the first place.

Decided June 8, 1994.

Crim & Bassler, Nickolai Makarenko, Jr., for appellant.

Jonap & Associates, Arthur C. Nilsen, for appellee.

I am authorized to state that Judge Andrews joins in this special concurrence.


text:
    A94A0673.
    In the Interest of C. E. M., a child.
    (444 SE2d 871)
   Judge Harold R. Banke.

The appellant, C. E. M., was adjudicated delinquent by the juvenile court, based upon a finding that he had committed a burglary. His sole contention on appeal is that the evidence was insufficient to support that finding.

The victim and the appellant are both teenagers and avid collectors of basketball cards. At trial, the victim testified that around 5:30 p.m. on May 20, 1993, the appellant came to his house and expressed an interest in trading for some of the victim’s cards. The victim showed his cards to the appellant on the front porch and discussed possible trades, but no trade was agreed upon. After the appellant left, the victim went out to dinner with his family.

The next morning, the victim and his mother noticed that a basement window had been broken, and later that day, the victim discovered that eight cards from his collection were missing. One of the missing cards was a Stadium Club Shaquille O’Neal card enclosed in a plastic case. Nothing else in the house had been taken.

Dang Duo, another neighborhood teenager who collected basketball cards, testified that he saw the appellant on the afternoon of the day in question and gave him directions to the victim’s house. Duo encountered the appellant again about one hour later, at which time the appellant told him that he had just “snatched” some cards from the victim. The appellant gave him a Stadium Club Shaquille O’Neal card in a plastic case, which Duo later returned to the victim. Duo also testified that the appellant traded cards at school the next day.

The appellant admitted going to the victim’s house to play basketball but denied breaking into the house and taking the cards. He also denied knowing where Duo lived or owning any of the cards missing from the victim’s collection.

A defendant’s recent unexplained possession of stolen property is sufficient to create an inference that the defendant committed the burglary, and must be considered along with other evidence of the burglary in determining whether a rational trier of fact could find the defendant guilty of the burglary beyond a reasonable doubt. Slater v. State, 209 Ga. App. 723 (1) (434 SE2d 547) (1993). In the instant case, in addition to the inference arising from the appellant’s unexplained possession of basketball cards following the burglary, the evidence also demonstrated that (1) the appellant had a keen interest in the cards prior to the burglary, (2) only those particular cards were stolen, and (3) the appellant made an incriminating statement acknowledging the theft and gave one of the stolen cards to a third individual.

Decided June 8, 1994.

Rich & Smith, Randolph G. Rich, for appellant.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

To support a verdict, circumstantial evidence only has to exclude all reasonable hypotheses save that of the defendant’s guilt. Slater v. State, supra at 724. Viewing the evidence in the light most favorable to the adjudication in this case, we find it sufficient to authorize a rational trier of fact to exclude every reasonable hypothesis except that of the appellant’s commission of a delinquent act of burglary beyond a reasonable doubt. Id.; H. R. G. v. State of Ga., 170 Ga. App. 776 (318 SE2d 210) (1984).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A0773.
    McKINNEY v. THE STATE.
    (445 SE2d 550)
   Judge Harold R. Banke.

Defendant Robert Timothy McKinney was charged with two counts of homicide by vehicle in the first degree, failing to stop at or return to the scene of an accident, reckless driving, failing to report an accident resulting in injury, death or property damage, following too closely and driving too fast for conditions. Defendant was tried before a jury. The trial court entered a directed verdict of acquittal on the first count of homicide by vehicle in the first degree and on the charge of failing to report an accident resulting in injury, death or property damage. The jury found defendant guilty of vehicular homicide in the second degree, failing to stop at or return to the scene of an accident, reckless driving and following too closely. He was acquitted of driving too fast for conditions. Defendant now appeals his convictions and the denial of his motion for new trial, raising five enumerations of error.

1. In his first enumeration of error, defendant raises the general grounds. The evidence, viewed in a light most favorable to the jury verdict, shows that in the late evening hours of October 11, 1991, at approximately 11:45 p.m., Kyran Thomaston and Mico Varnado were driving home from a football game on Highway 61 in Carroll County, Georgia. Thomaston was driving his Honda Civic and Varnado was his passenger. Suddenly, Thomaston noticed a flash of light behind him and immediately thereafter his car was hit from behind, causing the Civic to slide out of control, hit the median and flip over three times. Varnado was thrown from the vehicle and died at the scene of the accident from head injuries. Thomaston never saw the vehicle that hit him but shortly after the accident, while he was still in a dazed and disoriented state, he thought he saw a light grey or silver sports car parked in the grass alongside the road, a short distance from the accident.

Joy Giddens testified that defendant came to her apartment near midnight that same evening with “a big knot on his head.” Defendant told Giddens that he had fallen asleep behind the wheel of his Honda Accord while he was traveling on Highway 61, hit something, and ran off the side of the road. Ms. Giddens noticed that the windshield of defendant’s car was cracked and that the car had grass underneath the side. A few days later, defendant returned to Giddens’ home and showed her a newspaper account of the accident. Defendant told her he was afraid that he might have had something to do with Varnado’s death.

The State introduced photographic evidence of the two automobiles. Tom Webster, an accident reconstruction expert, testified that the physical evidence indicated that the Honda Civic had been struck in the rear by another car and that the car that hit the Civic had skidded off the road into some grass. He also explained the photographs to the jury and pointed out that because an indentation on the back bumper of the Honda Civic matched the front bumper guard of defendant’s car, it was his opinion that defendant’s car caused the damage to the Honda Civic. On cross-examination, however, the expert witness was unable to conclusively state that defendant’s vehicle struck Thomaston’s vehicle.

Defendant emphasized at trial that his vehicle was a tan or cream-colored Honda Accord hatchback, not the light grey or silver sports car initially described by Thomaston as being at the scene of the accident. Defendant also called his own expert witness who testified that in his opinion there was a lack of evidence to show that Thomaston’s vehicle was ever hit by another vehicle, and there was no evidence to show that defendant’s vehicle was involved in the incident.

On appeal, defendant contends that because no one ever saw defendant or his vehicle at the scene of the accident and the expert testimony as to whether defendant’s vehicle was involved in the accident was contradictory, the evidence was insufficient to support the jury’s verdict of vehicular homicide in the second degree and accompanying traffic offenses. We disagree. Although the evidence against defendant may have been circumstantial, we find that a rational trier of fact could have found defendant guilty beyond a reasonable doubt of vehicular homicide in the second degree and of the accompanying traffic offenses. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See generally Caffey v. State, 210 Ga. App. 395 (2) (436 SE2d 102) (1993).

2. In his second enumeration of error, defendant argues the evidence was insufficient to prove that the victim’s death was the proximate result of any acts committed by defendant. Relying on McKinney v. State, 204 Ga. App. 323 (419 SE2d 339) (1992), defendant argues there was no direct evidence sufficient to establish that defendant committed any traffic offense which proximately caused the death of Varnado. However, defendant’s reliance on McKinney is misplaced. In McKinney, the victim was driving on the wrong side of the road when she was struck, head-on, by a truck driven by a third party. Although the defendant in that case was driving too closely behind the victim and may have committed traffic offenses, the evidence clearly indicated that the defendant was not the cause of the accident or the victim’s death. In this case,, unlike McKinney, there is no question that Varnado died from injuries he suffered after the Honda Civic was struck from behind by another car. Our review of the record reveals that a rational trier of fact could have concluded that defendant committed one or more traffic offenses which were the proximate cause of the accident and Varnado’s death. See Jackson v. Virginia, supra.

3. In his third enumeration of error, defendant argues the trial court erred in allowing into evidence testimony about a conversation defendant initiated with a police officer following his arrest on the grounds that it was inadmissible character evidence.

During the trial, Sgt. James Perry of the Carrollton Police Department testified that defendant called the officer following his arrest to find out who had given his name as being involved in the incident on Highway 61. Perry testified that defendant told the officer that if he found out that Joy Giddens had turned him in, he would “f— her up.” Later in the conversation, defendant denied being involved in the incident.

Defendant alleges that the statement, as admitted, only prejudiced the jury and created the impression that defendant could commit a violent crime. “The Georgia courts have said many times that relevant evidence is not subject to an objection that it might inflame the minds of the jury or prejudice the jury and this is true even where the offered evidence is only cumulative . . . The Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value.” (Citations and punctuation omitted.) Johnson v. State, 170 Ga. App. 433, 436 (4) (317 SE2d 213) (1984). We find defendant’s conversation with the police officer, including his attempt to find out more about the accident, his desire to find out who had called the police and implicated him, and his self-serving denial of involvement, relevant to the issues on trial. “Where evidence may incidentally put character in issue or be prejudicial it may be admitted if otherwise relevant.” (Citations and punctuation omitted.) Bogan v. State, 206 Ga. App. 696, 697 (1) (426 SE2d 392) (1992). Accordingly, this enumeration is without merit.

4. In his fourth enumeration of error, defendant argues that the trial court’s charge to the jury constituted reversible error by commenting on the guilt of the defendant.

During its charge to the jury, the trial court inadvertently stated: “[t]o this indictment the defendant has entered his pleas of guilty to all charges and this makes the issues which you have been selected, sworn and empaneled to try.” However, the trial court later instructed the jury that a plea of not guilty is not to be considered as evidence and that the defendant has interposed a defense in this case of mistaken identity. Furthermore, when the trial court’s mistake was brought to its attention, the jury was brought back into the courtroom and the trial court recharged the jury emphasizing that the defendant had entered a plea of not guilty to all charges. We find that under these circumstances, the trial court’s mistake does not constitute reversible error. “A mere verbal inaccuracy in a charge resulting from a palpable slip of the tongue, which clearly could not have misled or confused the jury, is not reversible error ... A mere slip of the tongue is considered harmless when considered in the light of the entire charge.” (Citations and punctuation omitted.) Sanders v. State, 257 Ga. 239, 243 (6) (357 SE2d 66) (1987). See also Rodriguez v. State, 211 Ga. App. 256 (3) (439 SE2d 510) (1993).

5. In his fifth enumeration of error, defendant claims the trial court’s charge to the jury as to the elements of the offense of vehicular homicide in the second degree was erroneous.

A portion of the trial court’s initial charge to the jury on vehicular homicide in the first and second degrees was incorrect and confusing. When counsel brought this to the court’s attention, the jury was called back into the courtroom, and the trial court correctly instructed them on the elements of both offenses. After the jury sent notes indicating they were still confused, the trial court again recharged the jury on the different degrees of vehicular homicide. During this second recharge, the trial court inadvertently stated that a required element of vehicular homicide in the first degree was malice aforethought. The jury was once again brought back into the courtroom and instructed that vehicular homicide in the first degree did not require the element of malice aforethought. The trial court also repeated a portion of its instruction for vehicular homicide in the second degree. The trial court refused defendant’s request to repeat the entire charge on vehicular homicide in the second degree, including the accompanying charges on proximate cause.

Decided June 8, 1994.

Word & Flinn, Gerald P. Word, Candace E. Rader, for appellant.

Peter J. Skandalakis, District Attorney, Jeffrey W. Hunt, Assistant District Attorney, for appellee.

Defendant argues the trial court’s charge to the jury on vehicular homicide in the second degree was confusing and constituted reversible error. We disagree. Although the trial court’s charge to the jury contained some misstatements of law, eventually these misstatements were corrected and the jury was correctly and completely charged on the elements of both offenses. “(I)t is not necessary in considering a charge to assume a possible adverse construction, for a charge that is sufficiently clear to be understood by jurors of ordinary capacity and understanding is all that is required. All that is required is that the charge be substantially correct, not mathematically accurate. In the case sub judice, we find the charge as a whole was sufficient to [explain the elements of both degrees of vehicular homicide] to the jury.” (Citations and punctuation omitted.) Feblez v. State, 181 Ga. App. 567, 568-569 (2) (353 SE2d 64) (1987).

We also find that the trial court did not err in refusing to repeat all of the charges on proximate cause that accompanied its initial charge. “It is well established that when the jury, after having received complete instructions on the law applicable to the case, returns to the courtroom and requests additional instruction on a particular point, the trial court may, in its discretion, either recharge the jury in full or confine the instruction to the particular point suggested by the jury’s inquiry. . . . [Cit.]” Williams v. State, 210 Ga. App. 357, 358 (2) (436 SE2d 228) (1993). Because the errors that the trial court corrected in its final charge to the jury did not involve the earlier portion on proximate cause, we find the trial court did not abuse its discretion in refusing defendant’s request.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A0820.
    LEONARD v. THE STATE.
    (445 SE2d 330)
   Judge Harold R. Banke.

Defendant Randall Leon Leonard was convicted by a jury of trafficking in cocaine. His sole enumeration on appeal is the trial court’s denial of his pretrial motion to suppress evidence.

On January 7, 1993, Officer Len Woodel and other officers of the Clarke County Drug Task Force executed a search warrant at the residence of Patton Biddle. After the police discovered a quantity of cocaine and marijuana in Biddle’s home, Biddle became cooperative and named defendant as his supplier. Biddle also explained to the officers that over the preceding four years he and defendant would speak with each other the day before a delivery was to be made to arrange a time for the buy; that Biddle would then “beep” defendant the day of the delivery to let defendant know that he was at home waiting; that defendant would call Biddle about five to ten minutes before he would arrive at Biddle’s home to make sure that Biddle was alone and that all was clear; and that defendant would soon arrive at Biddle’s home carrying the cocaine inside a white envelope.

While the officers were still present in his home, Biddle agreed to beep defendant and arrange for a delivery of cocaine for that afternoon as Biddle had discussed with defendant the previous day. The officers were present when Biddle beeped defendant and when defendant called Biddle back, confirming that he would be at Biddle’s house later that afternoon. Biddle allowed the police to return to his home about two hours later to wait for defendant to arrive with the cocaine. Defendant called once again to make sure that it was safe for him to deliver the cocaine and, within ten to fifteen minutes thereafter, defendant arrived at Biddle’s home. As defendant walked through the door, Officer Woodel spotted a bulging white envelope in defendant’s shirt pocket. At that point, the officer identified himself and searched defendant’s body. The envelope was removed from defendant’s pocket, and Officer Woodel found 28.2 grams of cocaine inside. Shortly after the cocaine was seized from defendant’s person, another officer searched defendant’s truck parked in Biddle’s driveway. An additional 42.2 grams of cocaine were found in the trunk.

Officer Woodel also testified at trial that he was not surprised to discover that defendant was Biddle’s supplier. The officer, who is himself an artist, had friends in the artist community who had told him of defendant’s supplying them and others with cocaine. Because Biddle was connected to the music industry, Officer Woodel had suspected defendant was Biddle’s supplier. Officer Woodel also testified that he had police intelligence information connecting defendant with drug trafficking for a period of at least ten years, and information that connected defendant with at least two known convicted drug traffickers. Defendant’s physical appearance, his home, place of business, automobiles and post office box were known to Officer Woodel personally from surveillance he had conducted over the past five years.

Defendant argues the evidence of the drugs found on his person should have been suppressed because the police had no probable cause to search or arrest him. Specifically, defendant contends the officers’ reliance on the information provided by Biddle was insufficient to establish probable cause because Biddle was a drug user of unknown reliability.

“The duty of a reviewing court is to ensure that a substantial basis for probable cause existed. We must determine under the totality of the circumstances whether the evidence in this case showed a fair probability that contraband or evidence of a crime would be found in a particular place. It is well established that neither the basis of an informant’s knowledge, nor evidence of his veracity, nor corroboration of these elements is an entirely separate and independent requirement to be exacted in every case, but rather these elements are simply useful in illuminating the common sense, practical question whether there is probable cause to believe that contraband or evidence of a crime is located in a particular place.” (Citations and punctuation omitted.) Pattman v. State, 208 Ga. App. 770, 771-772 (431 SE2d 706) (1993); see also Thomas v. State, 208 Ga. App. 476 (2) (430 SE2d 849) (1993). “The trial court’s decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. Where there is evidence to support the decision of a trial judge on motion to suppress evidence, that decision will not be disturbed on appeal.” (Citations and punctuation omitted.) In the Interest of J. L. G., 209 Ga. App. 565, 566 (434 SE2d 126) (1993).

Contrary to defendant’s arguments, the information provided to the police by Biddle was not insufficient to establish probable cause merely because the police had never dealt with Biddle before as an informant. Biddle demonstrated his reliability by agreeing to cooperate with the police, calling defendant to arrange for the delivery of drugs, allowing the police to return to his house to witness the drug buy, and putting himself on the line by participating in the controlled purchase. McKenzie v. State, 208 Ga. App. 683, 684 (1) (431 SE2d 715) (1993). Additionally, by the time of defendant’s arrest, all of the specifics supplied by Biddle concerning the routine that would be followed by defendant had been corroborated by those events occurring in the exact manner described by Biddle. “Thus, this case did not involve improper reliance by the officers on uncorroborated information from an unknown informant.” Id. at 685. When considered along with Officer Woodel’s testimony about the previous knowledge he had of defendant’s drug trafficking activities, we conclude that under the totality of the circumstances, the officers had probable cause to search defendánt. Thomas v. State, supra at 477. Compare Polke v. State, 203 Ga. App. 306 (1) (417 SE2d 22) (1992) (no evidence was shown as to how the informants got their information, nor was the informants’ information sufficiently detailed to suggest that it was based on anything more substantial than mere rumor).

Decided June 8, 1994.

Jeffrey G. Gilley, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

Defendant further argues that even if the police had probable cause to search defendant’s person, there was no valid basis for the subsequent search of his vehicle without a warrant. However, the evidence indicates that Biddle had told the officers that when defendant made his weekly delivery of cocaine to Biddle that defendant would be “in route to other places as well.” Therefore, “[w]e find that there was sufficient indicia of probable cause to authorize a warrantless search of [defendant’s] car. Accordingly, the trial court did not err in denying [defendant’s] motion to suppress. [Cit.]” King v. State, 210 Ga. App. 828, 829 (437 SE2d 809) (1993).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A0907.
    HARPER v. THE STATE.
    (445 SE2d 548)
   Beasley, Presiding Judge.

Harper appeals his conviction of committing child molestation upon his six-year-old daughter. OCGA § 16-6-4.

Bell, a guidance counselor at the victim’s elementary school, testified that the victim had been referred to her due to classroom disciplinary problems. Upon being questioned by Bell as to what was bothering her, the victim stated that her father had been fondling her genital area with his hand. She stated that when this happened, he would lock her brother out of the house. Bell excused the victim and called the victim’s eight-year-old brother into her office. He told Bell that his father would frequently call his sister into the house while the two of them were playing and that he would lock the door and tell the brother not to come in until he told him to do so. Bell contacted the Department of Family & Children Services (DFACS).

DFACS Child Protective Services Worker Means and Paulding County Sheriff’s Department Investigator Strickland came to the school and interviewed the two children. Tape recordings of their statements were played for the jury and were consistent with the statements they had given to Bell. Means interviewed the victim a few days later in the presence of her mother and Strickland, and Means and Strickland both testified that the victim’s statement at that time was consistent with her earlier statements.

At trial the victim denied that her father had directed her brother to go outside while he molested her. She testified that she did not remember making pretrial statements that this had happened. She also testified that her father had touched her only one time to get coffee off her after he had spilled it, and this was what she was talking about in the pretrial interviews with the State’s witnesses. The victim’s mother testified that when questioned by Means in the mother’s presence, the victim stated that her father touched her by accident after spilling coffee and trying to remove it, and Means had said she was lying and that was not what she told them at school. The victim’s brother testified that his father had never locked himself in the house with his sister and asked the brother to stay out, and he did not remember saying this to the State’s witnesses. Appellant likewise testified that the only time he ever touched his daughter was to clean her up after spilling coffee.

Both Means and Strickland denied there was anything mentioned during their interview of the victim concerning appellant’s spilling coffee on her.

Appellant called his attorney’s secretary as a witness. She testified that she had tapes of counsel’s interviews of the victim and her brother shortly before trial. The court stated that counsel could play these tapes to the jury. The first tape contained the victim’s statement. Due to the poor quality of this tape, the court directed counsel to cease playing it. Counsel stated that he had not listened to the tape, apologized for its poor quality, and sought to question the witness concerning what the victim had said during the interview. The court sustained the State’s hearsay objection.

Appellant enumerates three errors. He contends that under Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985), the court erred in sustaining the hearsay objection to evidence of the victim’s prior consistent statement to defense counsel and in refusing to give his request to charge the jury on the use of a prior consistent statement as substantive evidence. The court had charged the jury on the use of prior inconsistent statements as substantive evidence. Appellant also contends that the court erred in refusing to allow the jury to hear the tape recordings of the statements made by the victim and her brother to defense counsel.

1. Under Cuzzort, the court erred in refusing to admit evidence of the prior consistent statement of the victim, although such statement was made to defendant’s attorney shortly before trial. Murphy v. State, 203 Ga. App. 152, 153 (1) (416 SE2d 376) (1992) (physical precedent only). “Cuzzort stands for the proposition that where the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible.” Edwards v. State, 255 Ga. 149, 151 (2) (335 SE2d 869) (1985).

Decided June 8, 1994.

F. Andrew Lane, Jr., for appellant.

George C. Turner, Jr., District Attorney, E. Chandler Barrett, Assistant District Attorney, for appellee.

The court likewise erred in refusing to charge the jury on the use of prior consistent statements as substantive evidence, particularly in light of the charge on the use of prior inconsistent statements as substantive evidence.

These errors were not harmless, as they affect the finding of incredibility of the trial testimony of the victim and her corroborating witnesses. Hers was the only direct evidence.

2. “Where the proper foundation for admission of a taped conversation is laid and portions of the conversation are inaudible, it is within the discretion of the trial judge to admit the tape.” Burke v. State, 248 Ga. 124, 125 (2) (281 SE2d 607) (1981).

The court did not abuse its discretion in refusing to admit the tapes. Defense counsel admitted the tape of the victim’s statement was of poor quality and sought instead to elicit testimony from the witness concerning the victim’s statement. Even if this is not regarded as acquiescence in the court’s ruling, there was no abuse. As to the tape of the brother’s statement, counsel did not request an opportunity to determine whether it was of similar poor quality. There is no cause to complain, as the record lacks a basis for finding error in this particular.

Judgment reversed.

Andrews and Johnson, JJ., concur.


text:
    A94A1149.
    GRAY v. THE STATE.
    (445 SE2d 328)
   Blackburn, Judge.

This is the second appeal of the armed robbery conviction of the appellant, Godfrey Gray. In Gray v. State, A93A2331, decided March 16,1994, but not officially reported, we dismissed Gray’s initial appeal as moot following the trial court’s grant of Gray’s motion to file the present out-of-time appeal. Gray’s initial appeal was procedurally deficient based upon his former appointed counsel’s failure to file a brief and enumerations of error, pursuant to Rules 14 (a) and 27 (b) of the Rules of the Court of Appeals, as ordered by this Court.

1. Initially, Gray asserts that the trial court erred in denying his motion for a directed verdict of acquittal because the evidence was insufficient to support his conviction. We disagree.

The evidence produced at trial shows that at approximately 11:00 a.m., January 4, 1992, Gray and several accomplices awaited the arrival of an armored truck for a scheduled pickup at a restaurant in Fulton County. Gray and his accomplices had been informed of the truck’s scheduled arrival by Rodney Watkins, an acquaintance of Gray and an employee of the armored service who participated in the robbery venture. Watkins drove the armored truck to the restaurant as planned and parked the truck in the front of the restaurant as another employee went inside to secure the restaurant’s deposits. As the employee exited the restaurant and attempted to enter the truck, Gray pushed the employee from behind, and a struggle ensued. During the struggle, the victim felt the outline of a gun in Gray’s pocket. Gray forced the employee onto the floor of the truck, and instructed both Watkins and the employee to toss their weapons into the rear of the truck. Gray demanded that Watkins drive down an adjacent street where Gray exited the truck with checks and cash from previous pickups. Thereafter, Gray entered an awaiting car driven by an accomplice and owned by Gray’s wife. A bag containing the restaurant’s deposits was later retrieved by the restaurant’s manager near the restaurant.

The police were summoned, and during their subsequent search of the home of Gray’s mother, they discovered the clothing worn by Gray during the incident. They also found $6,000 in cash wrapped in aluminum foil as described by an accomplice. Gray and his accomplices were subsequently arrested. Gray was identified at trial and in a prior photographic array by the victim as the armed robber. He was also identified by his articles of clothing by an employee of the restaurant who observed the incident. In addition, Watkins and another accomplice, A1 Lester, testified at trial as to Gray’s participation in the robbery.

Gray did not testify at trial but presented the testimony of his wife in support of his alibi defense. She testified that her husband had been at home with her on the morning of the robbery from approximately 11:00 a.m. until 12:30 p.m. Mrs. Gray recanted portions of a written statement given to the police a few days after the robbery, maintaining that the statement was made under duress. However, she did admit, as noted in the statement, that Gray had instructed her to report her automobile as stolen on the morning of the robbery.

“On appeal of a criminal conviction, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations and punctuation omitted.) Browning v. State, 207 Ga. App. 547, 548 (1) (428 SE2d 441) (1993). “The determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury. [Cit.]” Norris v. State, 258 Ga. 889, 890 (1) (376 SE2d 653) (1989). “This court determines the sufficiency of the evidence, [and] does not weigh the evidence or determine witness credibility.” (Citations and punctuation omitted.) Browning, supra at 548. See Lysfjord v. State, 208 Ga. App. 811 (1) (432 SE2d 247) (1993); Wimberly v. State, 205 Ga. App. 818 (1) (423 SE2d 728) (1992). In the case sub judice, the jury was authorized to and did reject the alibi evidence presented by Gray in light of the testimony of the victim, the restaurant employee, and the two accomplices. See Harvey v. State, 205 Ga. App. 863 (1) (424 SE2d 18) (1992).

Since a rational trier of fact could have found Gray guilty of the offense charged beyond a reasonable doubt in accordance with the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the trial court’s denial of Gray’s motion for directed verdict of acquittal must be affirmed. Williams v. State, 210 Ga. App. 357 (1) (436 SE2d 228) (1993).

2. Gray asserts in his second enumeration of error that the trial court erred in denying his motion for mistrial based upon the State’s alleged failure to comply with Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). Although Gray fails to indicate in his brief the specific violations of which he now complains, at trial he moved for a mistrial based upon the State’s failure to produce a statement which conflicted with the trial testimony of an accomplice and failure to produce copies of the prior convictions of the accomplice which were revealed during the accomplice’s testimony on direct. There is no indication from the record before us that the State had copies of those prior convictions in its files.

“Brady holds that suppression by the prosecution of evidence favorable to the accused which is material to either guilt or punishment violates due process. Brady does not require pre-trial disclosure of materials sought under a Brady motion. [Cit.]” Dennard v. State, 263 Ga. 453, 454 (4) (435 SE2d 26) (1993). Moreover, “ ‘[tjhere is no affirmative obligation on the prosecution to seek out information for the defense, although it might be more easily accessible to the prosecution.’ . . . [Cit.]” Bacon v. State, 207 Ga. App. 39, 40 (427 SE2d 32) (1993). “Even where the State may be aware before trial of potential contradictions, a prior contradictory statement of a witness does not become impeaching, i.e., contradictory or exculpatory, until the witness testifies. Brady does not require pretrial disclosure of the materials. Where, as here, the trial court has conducted an in camera inspection of the [State’s file including the] prior contradictory statement and determined that it contained no matter which was exculpatory or of significance, and where defense counsel has been permitted adequate cross-examination of the witness, the defendant has not borne his burden of showing prejudice to his case resulting from the prosecution’s refusal to turn over the [alleged] statement.” (Citation and punctuation omitted.) Echols v. State, 174 Ga. App. 829, 831 (2) (331 SE2d 619) (1985). Accordingly, we find no error.

Decided June 8, 1994.

Patrick G. Longhi, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Carla E. Young, Vivian D. Hoard, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J, and Senior Appellate Judge Harold R. Banke concur.

       In its January 29, 1994, order granting the motion, the trial court also appointed Gray’s present counsel to represent him on appeal.

       Watkins pled guilty to the lesser offense of robbery for his participation in the incident. At the time of trial, he had served ninety days in jail and was on probation for the remaining portion of his five-year sentence. Lester also pled guilty to robbery and was sentenced to five years in prison to serve two. He served 11 months in prison prior to trial and the balance of his sentence was suspended.