text:
    A92A0166, A92A0167.
    SMB STAGE LINE, INC. et al. v. LEACH; and vice versa.
    (418 SE2d 791)
   Sognier, Chief Judge.

Betty Leach filed a workers’ compensation claim against SMB Stage Line, Inc. (SMB) seeking medical and disability benefits for a back injury that she alleged arose from her work as a truck driver for SMB. After a hearing, the administrative law judge denied the claim on the basis that the injury resulted from congenital conditions rather than a work-related accident. Leach appealed to the State Board of Workers’ Compensation, which accepted some of the ALJ’s findings of fact but ruled Leach’s injury was compensable because her job performance had aggravated a pre-existing condition. SMB’s motion for reconsideration was denied, and SMB appealed to the superior court from the Board’s award and its denial of the motion for reconsideration. The court upheld the Board’s finding of compensable injury but held the Board should have apportioned the benefits to eliminate the expenses attributable to congenital conditions. We granted both the application of SMB and its insurer for discretionary appeal from the superior court’s affirmance of the Board’s award (Case No. A92A0166) and also Leach’s application for appeal from the superior court’s ruling on apportionment of benefits (Case No. A92A0167), and have consolidated both appeals for decision.

Evidence adduced at the hearing before the' AL J established that Leach had worked sporadically as a truck and bus driver for a number of years. In the late 1970s, she suffered a back injury while driving a truck, but was able to return to work after treatment. She became employed with SMB in July 1989 as a truck driver on a route from Atlanta to Philadelphia and Newark. She began experiencing back and leg pain in October 1989 and ultimately became unable to work in late November. She consulted her physician, Dr. Reese, who referred her to a neurosurgeon, Dr. Scarff, and an orthopedic surgeon, Dr. Chevres. After examining Leach in early 1990, these physicians diagnosed Leach as suffering from a number of back afflictions and performed several surgical procedures, including lumbar laminectomy and bilateral fusion.

Although the treatment records of Drs. Reese, Scarff, and Chevres contain no reference to any complaints of Leach that she had injured herself while driving a truck for SMB and indicate that she described no precipitating factor for her back injuries, Leach testified at the hearing before the ALJ that her back pain began as a result of the twisting and bouncing of her body that occurred when she slept or rested in the sleeper section of the truck cab. The record also contains letters written by Drs. Scarff and Chevres in response to queries from Leach’s attorney concerning the cause of Leach’s back problems. Dr. Scarff stated that the conditions he observed were congenitally derived and not attributable to any job-related activities, whereas Dr. Chevres opined that Leach’s congenital condition was aggravated in part by the jolting and twisting of her body while she rode in the truck and that these work-related activities caused her back pain.

1. In Case No. A92A0166, SMB contends the superior court erred by affirming the Board’s award made in reliance upon the testimony of Dr. Chevres. Citing Carey Hilliard’s Restaurants v. Cesaroni, 179 Ga. App. 656 (347 SE2d 306) (1986), SMB maintains that Dr. Chevres’s opinion consisted of responses to hypothetical questions based on factual predicates not supported by the record, and thus there was insufficient competent evidence to sustain the Board’s conclusion that Leach’s injury was work-related. Our review of the record reveals that the hypothetical questions in issue were consistent with Leach’s testimony at the hearing concerning the source of her injury. Although she had not previously provided this information to her physicians, there is evidence in the record consistent with the factual predicates on which Dr. Chevres based his opinion, and thus we are bound by the rule that the findings of the Board must be affirmed if there is any evidence in the record to sustain them. E.g., St. Regis Flexible Packaging Corp. v. Helm, 172 Ga. App. 251, 254 (4) (322 SE2d 549) (1984). The “any evidence” rule compels upholding of the Board’s award even when the medical evidence in the record is conflicting as to the causative connection between the work-related activity and the injury, see Walton County Bd. of Commrs. v. Williams, 171 Ga. App. 779, 780 (320 SE2d 846) (1984), and even though there is medical evidence indicating that the injury could have resulted from causes unrelated to work activities. Travelers Ins. Co. v. Hogue, 130 Ga. App. 844, 845 (204 SE2d 760) (1974).

SMB also asserts that the Board’s award is internally inconsistent because it adopted the findings of the ALJ, which included an implicit finding that Leach’s testimony was not credible, but then awarded benefits based on Dr. Chevres’s testimony, which was wholly derived from Leach’s statements concerning the source of her injuries. As this court has noted, the Board may articulate the same facts as the ALJ but reach the opposite conclusion. Rice v. Ciba Vision Care, 194 Ga. App. 528, 529 (1) (391 SE2d 30) (1990). Where, as here, there is evidence in the record to support the findings of both the ALJ and the Board, the findings of the Board supersede those of the ALJ. Id. Accordingly, we find no error in the superior court’s affirmance of the Board’s award of benefits for job-related aggravation of a pre-existing congenital condition. See McLeroy Plumbing Svc. v. Starks, 201 Ga. App. 270, 271 (1) (410 SE2d 756) (1991); Cotton States Ins. Co. v. Rutledge, 139 Ga. App. 729, 730 (1) (229 SE2d 531) (1976).

2. In Case No. A92A0167, Leach enumerates as error the portion of the superior court’s order that remanded her claim to the Board for apportionment of benefits between work-related and congenital causes. She contends the workers’ compensation law does not provide for apportionment of benefits on that basis. We agree and reverse. While Georgia law does provide for apportionment of benefits in the case of an occupational disease aggravated by a noncompensable infirmity and vice versa, OCGA § 34-9-285, there exists no comparable statutory apportionment requirement for other work-related injuries or infirmities. See Price v. Lithonia Lighting Co., 256 Ga. 49, 52 (343 SE2d 688) (1986). Aggravation of a pre-existing congenital injury is fully compensable as a new accident. Cotton States, supra. “ ‘Even where the employee had a pre-existing ailment which the [job-related activity] caused to flare up and become aggravated, it was properly ruled to have been an accidental injury arising out of and during the course of the employment, and compensable. (Cits.)’ [Cits.]” St. Regis, supra at 253. Given these legal principles, we find no authority for apportionment of benefits in the manner prescribed by the superior court.

Contrary to SMB’s contentions, our opinion in Berry College v. Storey, 199 Ga. App. 298, 299-300 (2) (404 SE2d 640) (1991) does not support the superior court’s ruling. In that case we remanded to the Board for determination whether some of the nonmedical expenses awarded pursuant to OCGA § 34-9-200 were actually incurred on behalf of other family members rather than on behalf of the claimant. We did not apportion expenses between types of injuries, but instead required deletion of expenses paid to benefit others. The claimant received full payment for all expenses she incurred as a result of her injury.

Decided May 12, 1992.

Sartain Law Offices, Phillip B. Sartain, for appellants.

Bennie H. Black, for appellee.

Judgment affirmed in Case No. A92A0166; judgment reversed in Case No. A92A0167.

McMurray, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A92A0498.
    HICKS et al. v. STATE OF GEORGIA.
    (418 SE2d 794)
   Johnson, Judge.

Patrick Hicks was stopped by a police officer for failing to signal a turn. During a search of the van driven by Hicks, the officer found and seized $3,460 believing that the money was obtained from the sale of illegal drugs. The traffic charge against Hicks was dismissed for want of prosecution, and no criminal charges were brought against him. The State filed a condemnation proceeding against Hicks for the money. Hicks answered and Juanita Hunt intervened, claiming that the money confiscated from the van belonged to her. After a jury trial, a verdict was returned for the State in the amount of $3,460. Hicks and Hunt appeal. We reverse.

1. The appellants contend that the trial court erred in admitting into evidence a certified copy of Hicks’ prior felony conviction.

During the State’s case-in-chief, the assistant district attorney called Hicks as a witness. He did not announce that Hicks was being called to the stand for purposes of cross-examination. While Hicks was on the stand, the State attempted to tender a certified copy of Hicks’ 1987 conviction of possession of cocaine with intent to distribute into evidence. At a bench conference, appellants’ counsel objected to the admission of this evidence on the ground that the conviction was being used to impeach Hicks, who was the State’s own witness. The court sustained the objection and did not allow Hicks’ prior conviction into evidence. Just prior to resting its case, the State again tendered the prior conviction. The appellants again objected on the basis that the conviction was not admissible as substantive or impeachment evidence. This time however, the trial court did allow the certified copy of Hicks’ prior conviction into evidence. The defense called no witnesses and offered no evidence during the trial.

It is not clear from the record whether the State tendered Hicks’ prior conviction for impeachment or substantive purposes. The admission of the evidence for either reason is harmful error.

OCGA § 24-9-81 provides, “[a] party may not impeach a witness voluntarily called by him, except where he can show to the court that he has been entrapped by said witness by a previous contradictory statement. However, in the trial of all civil cases either plaintiff or defendant shall be permitted to make the opposite party . . . [take the stand] with the privilege of subjecting such witness to a thorough and sifting examination and with the further privilege of impeachment, as if the witness had testified in his own behalf and were being cross-examined.”

However, when one party puts an opposing party on the stand there is not a presumption that the witness has been called for the purpose of cross-examination. Wight Hardware Co. v. American Lubricants Co., 91 Ga. App. 339, 346 (85 SE2d 507) (1954); see also Gielow v. Strickland, 185 Ga. App. 85, 87 (363 SE2d 278) (1987). “Therefore, ... in the absence of an announcement in open court to the effect that such a witness is put up for the purpose of cross-examination, the witness must be treated as the witness of the party calling him to the stand, with the attendant consequences.” Wight, supra. Among the “attendant consequences” of making the adverse party the calling party’s own witness, as opposed to calling him for purposes of cross-examination, is that the calling party may not impeach his own witness without a showing of entrapment by a prior inconsistent statement or surprise. OCGA § 24-9-81.

In the case sub judice, a certified copy of Hicks’ prior felony conviction was admitted. If it was for the purpose of impeachment, no announcement having been made by the State that Hicks was being called for the purpose of cross-examination and no entrapment on the part of Hicks having been shown, it was harmful error for the court to have permitted the State to impeach Hicks by allowing into evidence the certified copy of his prior felony conviction.

Evidence which does not in any reasonable degree tend to establish the probability of the issues of fact in controversy is irrelevant and inadmissible. Horne v. State, 125 Ga. App. 40 (186 SE2d 542) (1971). If offered as substantive evidence, Hicks’ prior conviction was irrelevant to any issue before the court and therefore did not serve any substantive purpose. The admission of the conviction for this purpose was also harmful error.

Therefore, the judgment entered in this case must be reversed.

2. Because of our holding in Division 1, the remaining enumerations of error need not be addressed.

Judgment reversed.

Carley, P. J., and Pope, J., concur.

Decided May 13, 1992.

Calhoun & Associates, Gregory N. Crawford, for appellants.

Spencer Lawton, Jr., District Attorney, John T. Garcia, Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A92A0668.
    McRAE v. THE STATE.
    (418 SE2d 796)
   McMurray, Presiding Judge.

Defendant McRae appeals his conviction of the offense of trafficking in cocaine. Held:

1. Defendant’s first two enumerations of error complain of the denial of his motion to suppress evidence. Officer Jones of the Cobb County Police Department received an anonymous telephone call on December 4, 1989. The caller stated that on the preceding day, Robert McRae had received three-quarters of a kilogram of cocaine, and the individual stated that he or she had actually seen the contraband. Robert McRae was described to the officer as a black man who lives in the rear of Building 14 of Woodgreen Apartments. The caller told the officer that Robert McRae had an orange Jeep which was broken down and in the repair shop so that he would be dealing out of the apartment. Previous drug complaints had been made in connection with Woodgreen Apartments. Officer Jones made inquiries with the apartments’ management via Officer Cook who worked as security at the apartment complex and was told that the apartment complex did not have a Robert McRae, but that there was a Tyrone McRae. Officer Jones was also provided a social security number and other personal data concerning Tyrone McRae. A computer check on the social security number provided information that Tyrone McRae had been convicted of possession of cocaine in New Jersey and was wanted there on a drug charge. However, the computer printout indicated that New Jersey officials would not extradite on that charge except from an adjoining state. Officer Jones telephoned New Jersey and verified that officials from that state would not extradite, although time was not taken to actually verify the existence of a warrant. Evidence presented at the motion to suppress hearing shows that in fact there was no warrant for the arrest of defendant Tyrone McRae outstanding in New Jersey. Officer Jones’ further investigation amounted to an hour long visit to the apartment complex during which he did not observe anything which would lead him to believe that drug dealing or trafficking in cocaine was going on in Building 14. At that time, Officer Jones did not know what Tyrone McRae or Robert McRae looked like, and could only note that there were black males in the area. Defendant contends that there was a lack of probable cause for the issuance of the search warrant since the reliability of the anonymous informant was not established.

The uncorroborated telephone call from an anonymous tipster is not alone sufficient to base a finding of probable cause. See Stola v. State, 182 Ga. App. 502, 503 (1), 504 (356 SE2d 222). None of the additional information acquired by the officer was illuminating as to any criminal activity. “To ensure that there was a valid basis for the magistrate’s conclusion, the reviewing court must ‘determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant.’ Massachusetts v. Upton, 466 U. S. 727, 728 (104 SC 2085, 80 LE2d 721). ‘We must determine, among other things, whether the hearsay information supplied to the affiant, coupled with the affiant’s personal observations, presented a fair probability that contraband would be found at the (suspect’s) residence.’ State v. Brown, 186 Ga. App. 155, 156 (1) (366 SE2d 816).” State v. White, 196 Ga. App. 685, 686 (396 SE2d 601). In the case sub judice, the officer’s conclusory characterization of the informant as a “concerned citizen,” a status entitling a preferred status insofar as credibility is concerned, is shown to be unwarranted since the officer did not know the identity of the informant nor provide any information supporting entitlement to this preferred status. As in State v. White, 196 Ga. App. 685, supra, and State v. Brown, 186 Ga. App. 155 (366 SE2d 816) (1988), the complete lack of information concerning the informant and the basis of the informant’s knowledge relegated the information supplied by the informant to the status of rumor. The officer’s affidavit based on the above-stated information, was not sufficient to provide the magistrate with probable cause for the issuance of a warrant.

The State argues that the exclusionary rule should not be invoked since there was good faith reliance by the officer on the magistrate’s issuance of the search warrant we now hold to be defective. See Debey v. State, 192 Ga. App. 512 (385 SE2d 694), and Adams v. State, 191 Ga. App. 916 (383 SE2d 378). However, in the case sub judice the officer’s reliance upon the magistrate’s determination was objectively unreasonable since the affidavit was so lacking in indicia of probable cause. While a law enforcement officer is not presumed to possess the knowledge of an attorney, their duties require them to become reasonably conversant with certain areas of the law including those at issue in the case sub judice. Therefore, while law enforcement officers may generally rely upon the magistrate’s determination of probable cause, an officer cannot be viewed as acting in objective good faith where he or she relies upon a magistrate’s determination of probable cause “ ‘ “so lacking in indicia of probable cause as to render (his) official belief in its existence entirely unreasonable.” (Cits.)’ United States v. Leon, [468 U. S. 897, 923 (III C) (104 SC 3405, 82 LE2d 677)].” Debey v. State, 192 Ga. App. 512, 514, supra. Under these circumstances, suppression is the appropriate remedy. Debey v. State, 192 Ga. App. 512, 514, supra. The trial court erred in denying defendant’s motion to suppress.

Decided May 13, 1992.

Boykin & Cobham, Jerry Boykin, for appellant.

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

2. In view of our holding in Division 1, defendant’s remaining enumerations of error need not be addressed.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


author: Carley, Presiding Judge.

text:
    A92A0081.
    TAYLOR v. THE STATE.
    (419 SE2d 56)
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of trafficking in cocaine and possession of marijuana. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. After guilty verdicts were originally announced, the jury was polled. When one juror indicated that he did not agree with the verdicts, the trial court ordered the jury to continue its deliberations. Thereafter, guilty verdicts were returned to which all jurors agreed. On appeal, appellant urges that the trial court erred in ordering the jury to return to its deliberations without first having given a recharge or questioned the dissenting juror further.

Insofar as further questioning is concerned, Georgia courts have “traditionally resisted inquiring into a jury’s thought processes. [Cits.]” Kimmel v. State, 261 Ga. 332, 335 (4) (404 SE2d 436) (1991). Appellant urges, however, that further questioning was mandated in the instant case because the comments of the originally dissenting juror “indicated that appellant’s failure to testify was a factor in his verdict.”

This is not supported by the record. If anything, the juror’s comments indicated that appellant’s failure to testify was a factor in the withdrawal of his assent to the original guilty verdicts. The juror stated: “I’m a little hesitant [about the original guilty verdicts] because I never heard . . . testimony from [appellant] and I [have] been a little leery about [the original guilty verdicts]. But I went along [with the original guilty verdicts] because of the evidence that was shown before me.” This would evince that the juror was correctly focusing on whether the evidence as to appellant’s guilt overcame the presumption of his innocence and was not incorrectly considering whether appellant’s silence was inculpatory. Under these circumstances, further questioning was not necessary to clarify the juror’s “confusion” about the evidentiary effect of appellant’s silence, because there was no “confusion” on the part of the juror to clarify.

Insofar as a recharge is concerned, no request was made therefor. “In the absence of a request for [a] . . . recharge, appellant is in no position to assert error. [Cit.]” Brownlee v. State, 155 Ga. App. 875, 876 (3) (273 SE2d 636) (1980).

One juror having indicated his disagreement with the original guilty verdicts and no request for a recharge having been made, the trial court did not err in merely ordering the jury to return to its deliberations. “The procedure followed by the trial court to resolve any misunderstanding as to the verdict was correct. [Cits.] . . . Accordingly, this enumeration is without merit.” Hudson v. State, 157 Ga. App. 71, 73 (3) (276 SE2d 122) (1981).

2. The cocaine and marijuana had been seized in appellant’s residence pursuant to the execution of a search warrant. The warrant had not been issued to search appellant’s residence for the drugs, but for a handgun used in a murder for which a Bahamian warrant to arrest appellant had been issued. Probable cause was predicated upon information which originally had been given by an anonymous telephone caller and which subsequently had been corroborated to a great degree by the officer who sought issuance of the search warrant. Appellant moved to suppress the cocaine and marijuana but, after conducting a hearing, the trial court denied appellant’s motion. The denial of the motion to suppress is enumerated as error.

At the hearing on appellant’s motion, the officer who obtained the warrant testified as to information which had been given to him by the anonymous telephone caller and which he had relayed to the issuing magistrate but not included in the affidavit. After hearing the officer’s testimony and considering the affidavit, the trial court found that the magistrate’s issuance of the search warrant had been based on probable cause. The trial court sits as the trior of fact at the hearing on a motion to suppress, and it does not appear that the trial court’s finding that the magistrate was authorized to conclude that probable cause did exist is clearly erroneous.

In any event, “in those cases wherein a search warrant has been sought and issued, the ultimate question of whether evidence should be suppressed is not dependent upon the magistrate’s erroneous determination that the warrant should have issued, but upon the officer’s objective good-faith reliance upon the magistrate’s determination, erroneous though that determination might have been. [Cit.]” Debey v. State, 192 Ga. App. 512, 513 (385 SE2d 694) (1989). “The affidavit [and oral testimony] submitted by the officer in the case sub judice is . . . similar to the affidavit at issue in Davis v. State, 198 Ga. App. 310 (401 SE2d 326) (1991). . . . Here, as in Davis, ‘there are no allegations that the magistrate abandoned his detached and neutral role in issuing the warrant for the search of (appellant’s) home. Further, there is no evidence that the affiant was dishonest or reckless in preparing the affidavit or that he could not have harbored an objectively reasonable belief in the existence of probable cause to search (appellant’s) residence. On the contrary, the evidence shows that the officer’s reliance on the magistrate’s determination of probable cause for the search of (appellant’s) house was objectively reasonable. . . .’ [Cit.]” State v. Gary, 201 Ga. App. 556, 557 (411 SE2d 536) (1991). “Moreover, we conclude that no suasive evidence of record exists that the search warrant was so facially deficient that the executing officers could not reasonably presume it to be valid[.]” Williams v. State, 193 Ga. App. 677, 681 (388 SE2d 893) (1989). “Accordingly, a finding of the applicability of the [United States v.] Leon[, 468 U. S. 897 (104 SC 3405, 82 LE2d 677) (1984)] good-faith exception would be demanded under the existing circumstances and evidence. It follows that a denial of appellant[’s] motion was the only correct ruling and that, even if the trial court based its ruling on an erroneous finding of the existence of probable cause, an affirmance would nevertheless be mandated. ‘When a ruling of the trial court is legally correct, it will be upheld regardless of the reason assigned. [Cits.]’ [Cit.] Accordingly, the denial of appellant[’s] motion to suppress is affirmed under the Leon good-faith exception to the exclusionary rule.” Debey v. State, supra at 514-515.

3. The description of the handgun for which the warrant was actually issued, though general rather than specific, was sufficient. Young v. Caldwell, 229 Ga. 653, 654 (4) (193 SE2d 854) (1972). See also Johnson v. State, 179 Ga. App. 467, 468 (4) (346 SE2d 903) (1986); Butler v. State, 130 Ga. App. 469, 473 (2) (203 SE2d 558) (1973).

4. The admission of appellant’s two prior drug convictions is enumerated as error.

The two crimes with which appellant was charged in the instant case were possessory offenses and the trial court admitted certified copies of and testimony with regard to appellant’s prior convictions for possession of cocaine and possession of marijuana. Compare Faison v. State, 199 Ga. App. 447 (1) (405 SE2d 277) (1991) (discussing the admissibility, at trial for sale of drugs, of prior conviction for mere possession). As in the instant case, appellant’s prior convictions were based upon his possession of cocaine and marijuana which had been found pursuant to a search of his residence. “We . . . find a sufficient similarity between the independent crime [s] and offense [s] charged for [them] to be admissible to show bent of mind or course of conduct. [Cits.]” Christopher v. State, 190 Ga. App. 393, 396 (2) (379 SE2d 205) (1989). Compare Faison v. State, supra.

Decided April 30, 1992

Reconsideration denied May 14, 1992

Maria T. Gonzalez, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Joseph J. Drolet, J. Clayton Culp, Assistant District Attorneys, for appellee.

Judgments affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A0144.
    In the Interest of C. N. G., a child.
    (419 SE2d 42)
   Johnson, Judge.

This case came before a superior court judge sitting as the juvenile court of Bulloch County. Appellants are the parents of a minor child. They appeal the juvenile court’s order terminating their parental rights.

1. Appellants contend that the juvenile court erred in finding that C. N. G. was a “deprived child” in the absence of clear and convincing evidence.

OCGA § 15-11-2 (8) defines a “deprived child” as a child who: “(A) Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals; (B) Has been placed for care or adoption in violation of law; (C) Has been abandoned by his parents or other legal custodian; or (D) Is without a parent, guardian, or custodian.” This section is the verbatim recodification of Georgia Code Annotated § 24A-401(h) (1973). We have previously held that this provision defined “deprived child” in broad enough terms to allow sufficient latitude of discretion for the juvenile court. Moss v. Moss, 135 Ga. App. 401 (218 SE2d 93) (1975).

The Department of Family & Children Services (DFCS) presented evidence which established that the parents, both substance abusers, failed to provide proper parental care for C. N. G. Additional evidence was presented that the child suffered health problems as a result of the appellants’ neglect. Moreover, by their own admissions, C. N. G.’s parents are incapable of providing for C. N. G. financially. The determination of deprivation and the decision to terminate parental rights based thereon is an exercise of discretion by the trial court and if based upon evidence, will not be controlled by a reviewing court. Roberts v. State, 141 Ga. App. 268 (233 SE2d 224) (1977). After a review of the entire record, we conclude that the facts established were sufficient for the juvenile court to find by clear and convincing evidence that C. N. G. was a “deprived child.”

2. C. N. G.’s father contends that the juvenile court erred in terminating parental rights because there was no evidence that a deprivation is likely to continue or go unremedied, pursuant to OCGA § 15-11-81.

This enumeration is without merit because evidence was presented that the deprivation of C. N. G. would be likely to continue if the appellants’ parental rights were not terminated. The mother had a history of fluctuating between making progress and “backsliding” in her substance abuse therapy. She had been admitted to the Swainsboro Detoxification Center on several occasions but withdrew from in-patient treatment before completing her program. An investigator from the Swainsboro Detoxification Center testified that “backsliding” is common for people addicted to drugs or alcohol.

The father told the investigator that he consumed alcohol because it helped him handle his depression. The father testified that he did not feel he had an “alcohol problem,” although he admits that he consumes up to three drinks almost every day.

It is clear from the record that sufficient evidence was presented to support a finding by the juvenile court that the deprivation of C. N. G. was likely to continue or go unremedied.

3. The father further contends that the juvenile court failed to attempt to place C. N. G. with his extended family, as required by OCGA § 15-11-90 (a) (1). This enumeration is without merit.

The juvenile court did consider placing C. N. G. with his extended family. In its order of January 17, 1991, the court found that the agency had interviewed relatives of the appellants for possible placement of the minor child, but none of the relatives was suitable for permanent placement. After hearing testimony from several relatives at the termination hearing, the court determined that C. N. G. should be made available for adoption and that the Department had made sufficient efforts to place the child with his relatives. “The trial court had the opportunity to question and observe the parties, and possesses a wide discretion in determining the issues before him, and if the judgment is supported by any evidence and is not clearly erroneous, an appellate court is not authorized to set it aside. [Cits.]” In re H. B., 174 Ga. App. 435 (330 SE2d 173) (1985).

The juvenile court properly granted the Department’s petition terminating the parental rights of the appellants in their minor child, C. N. G.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.

Decided April 29, 1992

Reconsideration denied May 14, 1992.

Jack B. Williamson, Jr., Johnston & Brannen, Gary L. Mikell, for appellants.

Michael J. Bowers, Attorney General, Margot M. Cairnes, Staff Attorney, Roach & Bradley, Hal Roach, Jr., Richard A. Mallard, for appellee.


text:
    A92A0199.
    BREWER v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (419 SE2d 60)
   Carley, Presiding Judge.

Appellant-plaintiff is a former at-will employee of appellee-defendant. After the termination of his employment, appellant brought suit, alleging that the “failure of [appellee] to follow its own rules and procedures violated [his] rights” and that “the acts of [appellee] in disciplining and discharging [him] damaged [his] reputation ... in the community in which he worked and also the community in which he lived.” Appellee answered, denying the material allegations of the complaint and, after discovery, it moved for summary judgment. The trial court granted appellee’s motion and appellant appeals.

1. Since appellant was an at-will employee, he clearly has no claim for wrongful discharge. “ ‘Where a plaintiff’s employment is terminable at will, the employer “with or without cause and regardless of its motives, may discharge the employee without liability. (Cits.)” ’ [Cit.]” Hall v. Answering Svc., 161 Ga. App. 874, 875 (2) (289 SE2d 533) (1982). “The fact that [appellant] had notice of certain [of appellee’s] policies and procedures regarding discipline and termination of employees which [he] alleges were not followed in [his] discharge would not give rise to an action for wrongful termination.” Garmon v. Health Group of Atlanta, 183 Ga. App. 587, 589 (1) (359 SE2d 450) (1987).

2. It is of no legal consequence that appellee’s acts of disciplining and discharging appellant may have damaged his reputation. The mere acts of disciplining and discharging an at-will employee are not, as a matter of law, actionable. Garmon v. Health Group of Atlanta, supra; Hall v. Answering Svc., supra. Damage to appellant’s reputation would be actionable only if it was the result of appellee’s non-privileged publication of false words regarding its disciplining of him or the termination of his employment. “Under Georgia law, before liability is imposed there must be publication of . . . defamatory information . . . other than [to] those who are privileged to communicate or receive the information. [Cit.]” Monahan v. Sims, 163 Ga. App. 354, 358 (1) (294 SE2d 548) (1982). It follows that the trial court’s order granting summary judgment on the ground that appellant had “neither alleged nor shown any [actionable] defamation” was correct.

Decided April 30, 1992

Reconsideration denied May 14, 1992.

Antonio L. Thomas & Associates, Antonio L. Thomas, for appellant.

Melinda K. Wells, Samuel Jakes, Jr., for appellee.

Judgment affirmed.

Pope and Johnson, JJ., concur.


author: Pope, Judge.

text:
    A92A0536.
    BEAN v. THE STATE.
    (418 SE2d 798)
   Pope, Judge.

Appellant/defendant Roderick Lamar Bean appeals his conviction for possession of cocaine with intent to distribute and obstruction of an officer. Defendant contends that there was insufficient evidence as a matter of law to support his conviction on both counts.

Construing the evidence in the light most favorable to support the verdict, the jury was authorized to find the following facts. On March 14, 1991, at approximately midnight, four officers from various law enforcement agencies in the Thomasville-Thomas County area were patrolling a known drug area in Thomasville. As they approached defendant, who was attempting to enter a car, a driver of a nearby truck yelled to defendant “[t]here’s the [pjolice.” Defendant began running and two of the officers ran behind him. They observed defendant making a throwing motion shortly before he stopped, but did not see what he threw from his hand. While one officer restrained defendant, the other officer made a search of the area and found a tissue containing approximately four pieces of crack cocaine and some crumbs. No other debris was found in the area. After defendant learned what the officer had found, he told them they did not see him throw the cocaine.

1. Defendant first argues no evidence was presented that he possessed the cocaine found by the officer in the area where he was apprehended. “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. “A reasonable hypothesis as used in this Code section refers only to ‘such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life; (it) does not mean that the act might by bare possibility have been done by someone else.’ [Cits.]” Prescott v. State, 164 Ga. App. 671, 672 (297 SE2d 362) (1982).

At trial, defendant testified he was visiting a friend at an apartment close to where the cocaine was found and was attempting to unlock a car belonging to another acquaintance when the police detained him. He denied fleeing from the police, making any statement to the police and possessing cocaine. No other witnesses were called to corroborate defendant’s testimony.

The State presented evidence that the apartment where defendant claimed his friend lived was empty. Although the cocaine was found in a public area, it was found immediately after defendant was detained, close to where the defendant made a throwing motion and the tissue in which the cocaine was found was the only debris located in the area. Thus, contrary to defendant’s contentions, the State was able to show more than defendant’s mere spatial proximity to the contraband. The evidence points toward defendant and only him. We hold sufficient evidence was presented to authorize the jury to disregard the only hypothesis offered by defendant and to authorize defendant’s conviction for possession of cocaine. See Ranalli v. State, 197 Ga. App. 360 (1) (398 SE2d 420) (1990); Lowman v. State, 197 Ga. App. 556 (1) (398 SE2d 832) (1990).

2. Defendant further argues insufficient evidence was presented to authorize the jury to conclude that he possessed the cocaine with intent to distribute. The State presented the testimony of the arresting officers, both experienced drug agents, who testified that the four pieces of cocaine found in the tissue were the size commonly sold on the street for $20. They also testified that mere users usually did not possess as much cocaine as was found in the tissue. Sufficient evidence was presented for the jury to find defendant guilty of possessing cocaine with intent to distribute beyond a reasonable doubt. Volcey v. State, 200 Ga. App. 881 (1) (410 SE2d 36) (1991).

3. In regard to the obstruction charge, defendant contends the State failed to prove he fled and attempted to hide and destroy evidence. As was discussed, supra, both .arresting officers testified that defendant fled and that he threw something. The jury was authorized to find defendant threw the tissue which contained cocaine in an attempt to hide and/or destroy the evidence. We hold sufficient evidence was presented for the jury to find the defendant guilty of both crimes charged beyond a reasonable doubt.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.

Decided May 14, 1992.

Andrews & Seery, Stephen H. Andrews, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellee.


text:
    A92A0194.
    MATHIS v. THE STATE.
    (418 SE2d 800)
   McMurray, Presiding Judge.

Defendant Mathis appeals his conviction of three counts of selling a controlled substance, cocaine. Held:

1. Defendant contends that the trial court erred in denying his motion in limine. By this motion, defendant sought to exclude evidence concerning the identification of the substances which defendant had sold to an undercover law enforcement officer. Defendant asserted that the state would be unable to prove the chain of custody due to the death of a deputy sheriff who had received the evidence for transmission to the State Crime Laboratory.

The undercover officer who made the purchases from defendant testified as to his procedure of using staples to seal each of the substances he purchased in an evidence bag marked with the seller’s name and attached an evidence report form before turning the bag over to other officers for transport to the crime laboratory. The crime laboratory chemist testified that at the time he received the evidence bags, from the deceased deputy sheriff, they were sealed tight and stapled shut. Defendant did not present any evidence of tampering with the evidence bags.

“Where the State seeks to introduce evidence of a fungible nature, it need only show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The fact that one of the persons in control of a fungible substance does not testify at trial does not, without more, make the substance or testimony relating to it inadmissible. The trial court was authorized to conclude that the state had met its burden with respect to the establishment of the chain of custody in the present case. Myers v. State, 196 Ga. App. 104, 105 (395 SE2d 372). ‘There being, at most, bare speculation of tampering or substitution, the trial court correctly admitted the cocaine into evidence. Johnson v. State, 143 Ga. App. 169, 170 (1) (237 SE2d 681) (1977).’ Langham v. State, 196 Ga. App. 71, 72 (395 SE2d 345).” Williams v. State, 199 Ga. App. 122, 123 (2) (404 SE2d 296). See also Page v. State, 198 Ga. App. 338, 339 (2) (401 SE2d 564).

2. In his second enumeration of error, defendant complains of the trial court’s failure to charge the jury specifically that the substances tested by the State Crime Laboratory could have been tainted due to the failure of the State to prove an unbroken chain of custody. However, this issue was not preserved for appeal by any objection at trial. Defendant thus waived any error. Cole v. State, 200 Ga. App. 318, 321 (4) (408 SE2d 438); Deal v. State, 199 Ga. App. 184, 188 (6) (404 SE2d 343).

Decided May 15, 1992.

Byrd & Anthony, Lovick P. Anthony, Jr., for appellant.

Douglas C. Pullen, District Attorney, Kim B. Hoffman, Assistant District Attorney, for appellee.

3. Defendant’s final enumeration of error contends that the trial court erred in the denial of his motion under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69). While the State used all its peremptory strikes to remove ten of the eleven black members of the jury panel, the trial court’s conclusion that the prosecutor had provided a racially neutral explanation for challenging the prospective black jurors cannot be found to be clearly erroneous. Eight of the ten were properly stricken because they knew defendant. Weaver v. State, 200 Ga. App. 82 (2) (406 SE2d 574). One of the prospective jurors’ grandson was being prosecuted for a criminal offense. See Cook v. State, 199 Ga. App. 14 (1), 15 (404 SE2d 128). The final prospective black juror was stricken based on information received by the prosecutor from law enforcement officers that this individual had connections in the illegal drug business. As the prosecutor’s reasons for striking the prospective jurors were racially neutral, related to the case to be tried, and presented clear and specific reasons for exercising the challenges, the trial court did not err in denying the Batson challenge. Walker v. State, 199 Ga. App. 638 (405 SE2d 736).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0262.
    SPRINGWELL DISPENSERS, INC. v. HALL CHINA COMPANY.
    (419 SE2d 112)
   Pope, Judge.

Plaintiff Hall China Company filed suit against defendant SpringWell Dispensers, Inc., to collect an unpaid balance on a commercial account. Defendant answered and filed a counterclaim alleging it was damaged by plaintiff’s breach of contract to supply defendant’s demand for porcelain water dispensers manufactured by plaintiff to defendant’s specifications. The trial court granted plaintiff’s motion for summary judgment on the complaint and dismissed the counterclaim. Defendant appeals the dismissal of its counterclaim.

Decided May 15, 1992.

Glass, McCullough, Sherrill & Harrold, R. Phillip Shinall III, James E. Bearing, Jr., for appellant.

Sutherland, Asbill & Brennan, Charles T. Lester, Jr., Bulaney L. O’Roark III, for appellee.

We agree with defendant that the record contains evidence creating an issue of fact on its claim that plaintiff breached its agreement to supply defendant’s demand for product. But the trial court did not err in dismissing the counterclaim because in answer to discovery requests the defendant indicated its only claim for damages was for lost profits and the only evidence of lost profits presented by defendant was too remote and speculative to sustain an award. Where, as here, the evidence shows the claimant was a new business with no history of profits and, in fact, was operating at a loss, the loss of prospective profits due to a breach of a supply contract is too remote and speculative to support a recovery of damages. See Radlo of Ga. v. Little, 129 Ga. App. 530 (2) (199 SE2d 835) (1973). Despite the evidence of the profit defendant made per unit sold to its customers, no evidence was produced, as requested by the plaintiff, of orders or contracts which defendant was unable to fill due to plaintiff’s alleged failure to ship the product to defendant. Despite the efforts of the defendant’s expert witness to estimate lost sales and calculate the total profits lost, defendant “was not entitled to recover lost profits because it had no track record of profitability.” Empire Shoe Co. v. NICO Indus., 197 Ga. App. 411, 414 (2) (398 SE2d 440) (1990).

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A0384.
    JOHNSON v. THE STATE.
    (419 SE2d 107)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of two counts of selling cocaine. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. Appellant enumerates as error the admission of the cocaine into evidence over his chain of custody objection. A review of the record shows, however, that the chain of custody was sufficiently established by the State. Accordingly, there is no merit in this enumeration. See State v. Marshall, 195 Ga. App. 535, 537 (4) (394 SE2d 379) (1990); Stewart v. State, 190 Ga. App. 162 (2) (378 SE2d 387) (1989).

2. Appellant requested charges on the credibility of witnesses and on reasonable doubt. Although the trial court did instruct the jury on these issues, appellant nevertheless objected that his requested charges had not been given in their “exact form.”

Appellant’s enumeration of the refusal to give his requested charges is without merit. “[A] defendant has no right to have the trial court charge in the exact language of his requests. [Cits.]” Horton v. State, 194 Ga. App. 797, 800 (4) (392 SE2d 259) (1990).

3. The trial court’s refusal to give appellant’s written request to charge on possession of cocaine as a lesser included offense is enumerated as error. “The correct rule is that 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). However, both the State’s uncontradicted evidence and appellant’s testimony show the completion of the greater offense of a sale of cocaine. See Milsap v. State, 185 Ga. App. 501 (1) (364 SE2d 631) (1988). Accordingly, there was no evidence that appellant had merely possessed rather than sold the cocaine. Walton v. State, 201 Ga. App. 118 (410 SE2d 339) (1991). “Under these circumstances, there was no error in the trial court’s refusal to charge the lesser offense. [Cits.]” Christian v. State, 181 Ga. App. 569, 570 (2) (353 SE2d 65) (1987).

4. Over appellant’s objections, his prior conviction for selling cocaine was admitted as evidence of his intent, motive, state of mind and course of conduct. This evidentiary ruling is enumerated as error.

As to the contention that admission of the prior conviction improperly placed his character into evidence, appellant merely relies upon “the general rule that in the trial of a crime, evidence of other criminal acts by the defendant is inadmissible as it tends to place the defendant’s character into evidence. [Cits.]” State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321) (1980). Appellant does not urge the inapplicability of the exception to this general rule which was relied upon by the trial court in admitting the evidence. A review of the record clearly shows that the prior conviction was admissible for the limited purposes noted by the trial court. “Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.” State v. Johnson, supra at 655 (1).

Appellant’s remaining contentions regarding the admission of his prior conviction have been considered and found to be without merit. Moreover, even assuming that there was any arguable merit in any of these contentions, the record demonstrates overwhelming evidence of guilt, particularly in light of appellant’s own testimony. Accordingly, error, if any, in the admission of appellant’s prior conviction would “not mandate a reversal because it is highly probable that that error did not contribute to the guilty verdict. [Cit.]” Faison v. State, 199 Ga. App. 447, 449 (1) (405 SE2d 277) (1991).

Decided May 15, 1992.

Joseph L. Smith, for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A0397.
    McGAHA v. THE STATE.
    (418 SE2d 802)
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of burglary. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. Appellant objected to the admission of evidence regarding his identification at a pre-trial lineup. The trial court found that the lineup was impermissibly suggestive. Compare Denegal v. State, 193 Ga. App. 238 (1) (387 SE2d 434) (1989). However, the trial court also found that there was not a substantial likelihood of irreparable misidentification and admitted the evidence. This evidentiary ruling is enumerated as error.

“The factors to be considered in determining whether there was a substantial likelihood of irreparable misidentification are: ‘(1) opportunity to view the defendant at the time of the offense . . . ; (2) the witness’ degree of attention . . . ; (3) the accuracy of the witness’ prior description . . . ; (4) level of certainty demonstrated . . . ; (5) the length of time between the crime and the identification. . . .’ [Cit.]” Pack v. State, 182 Ga. App. 618, 619 (356 SE2d 557) (1987). The record shows that, after considering these factors, the trial court correctly found that there was no substantial likelihood of irreparable pre-trial misidentification of appellant by the victims. See Brown v. State, 192 Ga. App. 187, 188-189 (1) (384 SE2d 254) (1989); Pack v. State, supra at 619. “Accordingly, the trial court did not err in allowing the victims’ pre-trial identification of [appellant] into evidence.” Pack v. State, supra at 619.

2. Appellant also enumerates as error the admission into evidence of his prior burglary convictions.

Appellant’s sole objection in the trial court was that the prejudicial impact of the prior convictions on the jury outweighed the probative value thereof. In his brief on appeal, however, appellant urges only that the State failed to make the affirmative showings required by Williams v. State, 261 Ga. 640, 642 (2b) (409 SE2d 649) (1991). “[N]othing in . . . Williams suggests that the Supreme Court has determined to dispense with the long-standing rule that, to warrant appellate consideration, an objection to the admission of evidence must first have been raised in the trial court. If the argument[s] that appellant advances in his brief had been raised in the form of an objection in the trial court, it is possible that . . . Williams might warrant a reversal of appellant’s conviction. In the absence of such an objection, however, any discussion of . . . Williams in the instant case is inappropriate.” Hunter v. State, 202 Ga. App. 195, 198 (3) (413 SE2d 526) (1991).

Decided May 15, 1992.

Richard Thurman, for appellant.

Roger Queen, District Attorney, for appellee.

The objection which was made in the trial court must be considered as having been abandoned by appellant on appeal because “he fails to provide any supporting legal authority or to make any supporting legal argument. [Cit.]” McGraw v. State, 199 Ga. App. 389, 392 (6) (405 SE2d 53) (1991). Nevertheless, the record does show that appellant acknowledged in the trial court some factual similarity between the instant burglary and those burglaries for which he was previously convicted and that he asserted no prejudice beyond that which would result from the admission of prior offenses against the defendant in any criminal case.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A0605.
    SPINKS v. THE STATE.
    (419 SE2d 108)
   Pope, Judge.

Appellant/defendant Millard Jack Spinks appeals his conviction for aggravated assault and aggravated battery and the denial of his motion for new trial.

Construing the evidence in the light most favorably to support the verdict, the evidence showed that at approximately 1:00 a.m. on June 6, 1989, a man was attacked outside a nightclub and severely beaten. The victim, a friend accompanying the victim that night, and two bouncers from the nightclub testified that the defendant attacked the victim. The victim testified that defendant and his friend approached him and his companion in the nightclub parking lot. Defendant removed his shirt and taunted the victim to threaten him. When the victim refused, defendant hit him in the face, chased him across the street, picked him up and threw him into a store window with such force that his elbow was shattered, and then kicked the victim in the face and stomach. Defendant abandoned his attack when he saw two bouncers approaching from the nightclub.

1. Defendant first contends that the trial court erred by allowing the State to present evidence of a prior similar transaction. The State was allowed to present the testimony of a man who stated that three years earlier he was approached by defendant and after a brief conversation, defendant told him he was going to “whip his ass.” The witness testified he then hit defendant. Defendant jumped the witness and they wrestled for a few minutes. The witness pushed defendant off him and attempted to go into a nearby building for help. Defendant then jumped the witness again and stabbed him in the chest and stomach.

Although evidence of prior crimes committed by a defendant is generally inadmissible, exceptions to this rule have developed allowing evidence of other crimes committed by a defendant to be admitted for limited purposes such as to show identity, plan, scheme, bent of mind, or course of conduct. State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321) (1980). Before evidence of prior crimes is admissible, the State must show at a pretrial hearing held pursuant to Uniform Superior Court Rule 31.3 that (1) it intends to introduce evidence of the prior crime for an appropriate purpose; (2) there is sufficient evidence to establish the defendant committed the independent offense or act; and (3) there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991).

A review of the record reveals that the State met its burden at the 31.3 (B) hearing. The State introduced the similar transaction for the purpose of showing defendant’s bent of mind. There was no issue as to identity because the State had a certified copy of defendant’s conviction for the prior crime. There was also sufficient similarity and connection between the crimes. In both incidents, defendant approached a stranger in a public place, initiated a confrontation by the use of threats or threatening conduct, and caused substantial physical injury to both victims. We hold that the trial court did not err by allowing the State to present evidence of this prior similar transaction.

2. Defendant also asserts he was deprived of effective assistance of counsel. “[T]he burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below ‘an objective standard of reasonableness’ and (2) there is ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ Strickland v. Washington, 466 U. S. 668, 695-96 (104 SC 2052, 80 LE2d 674) (1984).” Williams v. State, 258 Ga. 281, 286 (7) (368 SE2d 742) (1988). “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.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990).

(a) First defendant urges that trial counsel should have properly objected to evidence of defendant provoking another fight with one of the bouncers outside the same bar on the same morning as the alleged assault and battery for which defendant was convicted. The record supports the trial court’s conclusion that this evidence was properly admitted as part of the res gestae of the crime with which defendant was charged. The trial court did not err in denying defendant’s motion for new trial on this basis.

(b) Defendant contends that trial counsel should have attempted to mitigate the effect of the introduction of the similar transaction evidence by questioning defendant about it further while he testified. Trial counsel testified during the hearing on defendant’s motion for new trial that she did not attempt to question him further about the similar transaction evidence that was introduced because “the whole thing stunk,” and she did not wish to make it worse by emphasizing it. This was clearly a trial strategy decision by trial counsel and the trial court did not err by failing to grant defendant a new trial on that basis. See Lee v. State, 199 Ga. App. 246 (3) (404 SE2d 598) (1991).

(c) Defendant asserts that trial counsel erred by failing to solicit testimony to establish the defense she discussed during her opening argument: the victim’s injuries were largely the result of his drunken condition which caused him to fall. The record reveals, however, that during defendant’s case-in-chief, defendant testified that the victim fell. Furthermore, defense counsel’s cross-examination of the victim’s treating physician was consistent with this defense. We hold defendant’s contention that defense counsel abandoned defendant’s theory of defense to be without merit. “Decisions regarding what witnesses to call, juror selection, cross-examination and trial motions fall within the scope of strategic and tactical decisions. [Cit.] Deficiencies which may tend to show ineffectiveness generally evince inadequate preparation and include failure to present an available material witness, failure to consult sufficiently with the accused and inadequate investigation into the facts and the law. [Cits.]” Spence v. State, 163 Ga. App. 198, 199 (292 SE2d 908) (1982). We agree with the trial court’s conclusion that the defendant failed to meet his burden of showing that a more probing examination of witnesses would have revealed additional evidence to support the defense raised by trial counsel during her opening argument.

Decided May 15, 1992.

Richard L. Dickson, J. Michael Mullís, for appellant.

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

(d) Defendant finally argues that trial counsel called witnesses at trial who offered testimony that was detrimental to defendant. As defendant properly points out on several occasions the trial court had to call to defense counsel’s attention that the testimony she was soliciting helped to support the State’s case against defendant. A review of the record reveals that the trial court’s intervention was instrumental in preventing defense counsel from prejudicing her client. Although other lawyers might have conducted defendant’s defense differently, the decision on which witnesses to call is ordinarily a trial strategy decision and will not give rise to denial of effective assistance of counsel. See Austin v. Carter, 248 Ga. 775 (285 SE2d 542) (1982). In sum, we hold that defense counsel’s representation of the defendant, although certainly not flawless, did not constitute ineffective assistance of counsel and the trial court did not err by denying defendant’s motion for new trial.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A0653.
    BYRD v. THE STATE.
    (419 SE2d 111)
   Johnson, Judge.

A jury convicted Charles Ray Byrd of molesting his four-year-old niece, J. B. He appeals.

1. Byrd contends that the trial court erred in allowing the hearsay statements of J. B. to her parents and a caseworker to be admitted as evidence.

At the trial of the case sub judice, the court permitted J. B.’s parents and a caseworker to testify as to statements made to them by J. B. regarding incidents of sexual abuse inflicted upon her by Byrd. The trial court allowed such hearsay testimony after determining that J. B. was available to testify, in accordance with OCGA § 24-3-16 (the Child Hearsay Statute) and OCGA § 24-9-5. J. B. took the stand, answered preliminary questions, but refused to answer any questions pertaining to the substance of the charges levied against Byrd.

Byrd contends on appeal that the inability of J. B. to testify in response to questions relating to the charges against him rendered her legally unavailable. Furthermore, he contends that the child’s “unavailability” precluded him from thoroughly cross-examining her as to the veracity of the hearsay statements made against his interests by her parents and the caseworker which resulted in a violation of his Sixth Amendment Right to confrontation. His contentions are without merit.

Decided May 15, 1992.

Clyde M. Urquhart, for appellant.

W. Glenn Thomas, Jr., District Attorney, Christopher A. Fra zier, Charles K. Higgins, Assistant District Attorneys, for appellee.

The instant case is controlled by the opinion in Bright v. State, 197 Ga. App. 784, 785 (400 SE2d 18) (1990). In Bright supra, this court stated: “So long as the witness is made available for confrontation and cross-examination, the defendant’s rights are protected, even if the witness is uncommunicative or unresponsive. The thrust of the child witness statute is to allow the jury, which must be convinced of guilt beyond a reasonable doubt, to judge the credibility of a child’s accusations. If a child, who has reported child molestation to an adult permitted to testify to the out-of-court statement at trial, is incapable of reiterating the accusation at trial or is unresponsive or evasive during cross-examination, the jury must decide the child’s credibility . . . The manner in which the witness responds to cross-examination is, itself, evidence as to credibility.” Bright, supra. “A witness’ responsiveness or unresponsiveness, evasiveness or directness . . . are all factors which can be assessed by the jury and may raise a reasonable doubt. [Cit.]” Jones v. State, 200 Ga. App. 103 (407 SE2d 85) (1991). Accordingly, we find that Byrd’s right to confront and cross-examine J. B. was protected in spite of the child’s unresponsiveness on cross-examination as to the merits of the case brought against him.

2. Byrd further contends that there was insufficient evidence to support his conviction beyond a reasonable doubt.

At the trial of the instant case, evidence was presented indicating that Byrd placed paper inside J. B.’s vagina and rubbed his penis on parts of her body. Additional evidence was produced of two similar transactions in which Byrd touched the vagina of another niece, an adolescent.

It is apparent from the record that sufficient evidence was produced at trial such that a rational trier of fact could have found Byrd guilty of child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Therefore, the jury’s verdict shall not be disturbed.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0280.
    MANTEGNA v. PROFESSIONAL AUTO CARE, INC. et al. PROFESSIONAL AUTO CARE, INC. v. MANTEGNA.
    A92A0281.
    (419 SE2d 43)
   Johnson, Judge.

Michael N. Mantegna (Mantegna) sued Professional Auto Care, Inc. (PAC), Airport Parking Venture I (APV) and Alexander Lostocco (Lostocco) on a written contract for legal services. The case was tried without a jury. At the close of Mantegna’s evidence, the court denied PAC’s motion for a directed verdict and granted motions for directed verdict as to APV and Lostocco. At the close of all the evidence, the court entered judgment in favor of Mantegna and against PAC, without making findings of fact. The court awarded damages to Mantegna, but no attorney fees. Mantegna appeals from the judgment and the denial of his motion for a new trial and PAC cross-appeals.

Case No. A92A0280

1. Mantegna’s first two enumerations assert that the trial court erroneously granted involuntary dismissals as to APV and Lostocco. These enumerations are without merit.

“A motion for directed verdict in a non-jury trial is procedurally incorrect and the motion will be treated as one for involuntary dismissal under OCGA § 9-11-41 (b). [Cits.]” Chamlee v. DOT, 182 Ga. App. 120 (1) (354 SE2d 701) (1987). The trial court’s order in the instant case, granting the motions for directed verdict, will therefore be treated as an order granting motions for involuntary dismissal of APV and Lostocco.

“Pursuant to OCGA § 9-11-41 (b), upon defendant’s motion to dismiss at the close of plaintiff’s evidence in a nonjury trial the trial court has the power to adjudicate the case on the merits and need not view the evidence in the light most favorable to plaintiff. ‘Thus, in cases of this nature, the trial judge sits as trier of fact, and his findings are analogous to the verdict of a jury and should not be disturbed if there is any evidence to support them. [Cits.]’ ” Safeway Ins. Co. v. Holmes, 194 Ga. App. 160, 161 (1) (390 SE2d 52) (1990). In the instant case, there was evidence to support the trial court’s dismissal of APV and Lostocco. The record on appeal shows that Mantegna entered into a written contract solely with PAC, and that APV and Lostocco were not parties to the agreement. Accordingly, we find no error in the trial court’s dismissal of APV and Lostocco.

2. Mantegna next complains that the trial court erred in failing to award attorney fees against PAC. There is evidence in the record on appeal to support the trial court’s judgment denying attorney fees and therefore it will not be disturbed on appeal. Safeway Ins. Co. v. Holmes, supra.

3. Mantegna next asserts that the judgment against PAC is ambiguous on its face as to the amount of damages awarded. Such is not the case. The judgment states, “Plaintiff is entitled to judgment in his favor against defendant PROFESSIONAL AUTO CARE, INC., in the principal amount of Three Thousand, Five Hundred Forty-Nine Dollars and Fifty Cents ($3,549.50), plus interest of $1,543.96, a total sum of $5,093.46, plus all costs of his action.” There is no ambiguity. Therefore, this enumeration is without merit.

4. Mantegna also argues that the trial court erred in failing to make specific findings of fact in support of its judgment. OCGA § 9-11-52 (a) states, “In ruling on interlocutory injunctions and in all nonjury trials in courts of record, the court shall upon request of any party made prior to such ruling, find the facts specially and shall state separately its conclusions of law.” (Emphasis added.) None of the parties asked the court to make specific findings of fact prior to its rulings. Accordingly, there was no error in the form of the trial court’s judgment.

5. Mantegna’s final enumeration of error, that the trial court improperly denied his motion for a new trial, simply relies on each of the arguments previously considered in this opinion. This enumeration is therefore without merit.

Case No. A92A0281

1. PAC’s first enumeration is that the trial court erred in refusing to allow evidence that Mantegna allegedly violated ethical and professional rules of the State Bar of Georgia by simultaneously representing PAC, APV and Lostocco. At trial, PAC called an attorney as an expert witness to show, through hypothetical questions, that Mantegna had conflicting interests in representing PAC, APV and Lostocco. PAC also wanted to show that this alleged conflict reduced the value of Mantegna’s legal services. Mantegna objected on the ground that the hypothetical question posed to the witness did not conform to the evidence of the case. The court sustained the objection. We interpret this objection and the court’s ruling as being based on the relevance of the evidence.

“ ‘[A]dmission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.’ ” Barnwell v. State, 197 Ga. App. 116, 118 (5) (397 SE2d 717) (1990). Here, the trial court did not abuse its discretion and therefore we will not disturb its decision.

Decided April 29, 1992

Reconsideration denied May 18, 1992.

Arthur F. Millard, for appellant.

Raiford, Dixon & Thackston, Tyler C. Dixon, Sheldon K. Fram, for appellees.

2. PAC complains in its second enumeration that the court erroneously denied its motion for a directed verdict, which we shall treat as a motion for an involuntary dismissal. Chamlee v. DOT, supra. At trial, Mantegna produced evidence showing that PAC contracted to pay for the legal services he provided and that PAC had not paid him in full pursuant to the contract. Accordingly, there was evidence to support the court’s denial of PAC’s motion for an involuntary dismissal. Safeway Ins. Co. v. Holmes, supra.

Judgments affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0364.
    WALDROUP et al. v. GREENE COUNTY HOSPITAL AUTHORITY et al.
    (419 SE2d 36)
   Pope, Judge.

Appellants/plaintiffs appeal from the trial court’s dismissal of their complaint. On May 4, 1990, Jerry Waldroup, through his guardian Kathy Waldroup, and Kathy Waldroup individually filed a complaint setting forth claims for personal injury and loss of consortium against the Greene County Hospital Authority d/b/a Minnie G. Boswell Memorial Hospital (the “hospital”), Dr. James E. Southerland and Nurse Stembridge. In the complaint, the plaintiffs assert that on May 5, 1988, Jerry Waldroup went to the hospital emergency room complaining of severe headache, nausea and vomiting. Dr. Southerland was on call in the emergency room that day but was seeing patients at his office when Waldroup arrived at the hospital. Nurse Stembridge notified Dr. Southerland of Waldroup’s condition but the doctor did not go to the emergency room to examine Waldroup immediately. Instead, he prescribed a pain killer and antinausea medication for Waldroup. Approximately four hours later, Dr. Southerland examined Waldroup at the hospital and suspected Waldroup was suffering from subarachnoid hemorrhage. He then referred Waldroup to Athens Regional Medical Center for further treatment. The doctors at Athens Regional Medical Center diagnosed Waldroup as suffering from subarachnoid hemorrhaging and performed emergency neurosurgical procedures on Waldroup but he lapsed into a coma and subsequently died. In the complaint plaintiffs claim that if emergency medical personnel at the hospital, Dr. Southerland and Nurse Stem-bridge, had rendered Waldroup adequate medical care, his neurological outcome would have been different.

The plaintiffs invoked the application of OCGA § 9-11-9.1 (b) by further alleging in the complaint, which was filed on May 4, 1991, that the statute of limitation would expire within ten days of the date of the filing of the complaint and due to the time restraints an expert’s affidavit could not be prepared. OCGA § 9-11-9.1 (b) provides: “The contemporaneous filing requirement of subsection (a) of this Code section shall not apply to any case in which the period of limitation will expire within ten days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared. In such cases,'the plaintiff shall have 45 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on motion, after hearing and for good cause extend such time as it shall determine justice requires.” On the forty-fifth day after the complaint was filed, plaintiffs filed the affidavit of a nurse, a facsimile copy of an affidavit prepared for Dr. Sargent, an emergency room physician, and a motion seeking a one-day extension of time to file the original of Dr. Sargent’s affidavit. On July 2, 1990, the trial court held a hearing on plaintiffs’ motion to extend time to file the requisite affidavit. The trial court denied the plaintiffs’ motion and dismissed their complaint. Plaintiffs appeal from the dismissal of their complaint.

1. Plaintiffs argue that the trial court misunderstood the operative facts and erred in dismissing their complaint against Nurse Stembridge and the hospital because plaintiffs in fact timely filed the original affidavit of Nurse Carolyn O’Neill before the 45-day grace period expired. A review of the trial court’s order reflects that the trial court erroneously thought all the requisite expert affidavits were filed outside the 45-day grace period. However, a judgment that is right for any reason must be affirmed. Bailey v. Hall, 199 Ga. App. 602, 606 (405 SE2d 579) (1991). Because we conclude the plaintiffs failed to comply with the dictates of OCGA § 9-11-9.1 when filing their claim for malpractice against the nurse and hospital, we affirm that portion of the trial court’s order. The O’Neill affidavit is clearly insufficient on its face. Cf. Thompson v. Long, 201 Ga. App. 480 (411 SE2d 322) (1991) (affidavit was not clearly insufficient on its face and because defendants did not raise the sufficiency of the affidavit at the trial court level, we held that issue presented nothing for appellate review). “A signed statement of facts, purporting to be the statement of the signer, followed by the certificate of an officer, authorized to administer oaths that it was sworn to and subscribed before him, is a lawful affidavit.” Phoenix Air Conditioning Co. v. Al-Carol, Inc., 129 Ga. App. 386, 387 (199 SE2d 556) (1973). The purported affidavit of Carolyn O’Neill contains only one sentence which states “[t]his is an affidavit form for use in the litigation involving Jerry Waldroup.” Below that sentence is the affiant’s name and signature and the jurat. Attached to that form is a letter written by O’Neill to plaintiffs’ counsel, which is clearly not a sworn statement. The affidavit form does not reference or incorporate the letter. The affidavit is fatally defective on its face. As the Georgia Supreme Court noted in Cheeley v. Henderson, 261 Ga. 498, 501 (405 SE2d 865) (1991), when an affidavit is fatally defective, the appellate court should address the issue and dispose of the issue on its merits in the interest of judicial economy and for the benefit of all parties involved. Accordingly, even though the trial court may have been confused about certain of the facts concerning the filing of the requisite affidavits, because the affidavit of Carolyn O’Neill was fatally defective we will not hold that the trial court erred by dismissing plaintiffs’ claims against Nurse Stembridge and the hospital.

2. Plaintiffs also contend that the trial court erred in dismissing their claims against Dr. Southerland. Plaintiffs argue it was error to dismiss their claims against the doctor because the original notorized report of their expert Dr. Sargent and a facsimile copy of his existing affidavit were timely filed. Although the statute contemplates that the original affidavit of the expert should be filed, our decision in Gooden v. Ga. Baptist &c., 198 Ga. App. 407 (1) (401 SE2d 602) (1991) does not prohibit trial courts when justice so requires from considering facsimiles of affidavits that are available during the statutory period. See Emory Clinic v. Wyatt, 200 Ga. App. 184 (3) (407 SE2d 135) (1991); Reid v. Brazil, 193 Ga. App. 1 (2) (387 SE2d 1) (1989) (holding failure to file the requisite affidavit within the statutory grace period does not render the complaint void ab initio). Because the record supports the plaintiffs’ contention that the Sargent affidavit was available during the statutory grace period, the Georgia Supreme Court’s decision in St. Joseph’s Hosp. v. Nease, 259 Ga. 153 (1) (b) (377 SE2d 847) (1989) requires that plaintiffs be allowed to amend their complaint. This case is remanded to the trial court to reinstate the claims of the plaintiffs’ complaint against Dr. Southerland.

Judgment affirmed in part, reversed in part and remanded with directions.

Carley, P. J., and Johnson, J., concur.

Decided April 24, 1992

Reconsideration denied May 18, 1992.

Kilpatrick & Cody, Matthew H. Patton, Caroline W. Spangenberg, Alan R. Perry, Jr., Craig E. Bertschi, for appellants.

Lokey & Bowden, Malcolm Smith, G. Melton Mobley, Blasingame, Burch, Garrard & Bryant, Gary G. Blasingame, for appellees.

On Motion for Reconsideration.

On motion for reconsideration, defendant Southerland argues that the affidavit of Dr. Sargent was insufficient on its face to comply with the dictates of OCGA § 9-11-9.1 and for that reason the trial court correctly dismissed plaintiffs’ claims against defendant Southerland. Unlike the affidavit prepared by Nurse Carolyn O’Neill, the affidavit prepared by Dr. Sargent references the report he prepared for plaintiffs’ counsel. That affidavit also incorporates by reference at least one statement contained in the report. The statement incorporated in the affidavit is as follows: “In summary, the evaluation performed by Dr. S[o]utherland at the Boswell Memorial Hospital was serious substandard, and resulted in a significant delay in the diagnosis of subarachnoid hemorrhage and a delay in the diagnosis and treatment of Mr. Waldroup’s subarachnoid hemorrhage.” We hold that statement is sufficient to meet the requirement of OCGA § 9-11-9.1 (a) of setting forth at least one negligent act or omission and the factual basis for the claim.

Motion for reconsideration denied.

       We note that our decision in this case is not inconsistent with our prior decision in Brake v. Mintz, 193 Ga. App. 662 (388 SE2d 715) (1989). As a general rule, trial courts have wide discretion to determine if the plaintiff has shown good cause why the statutory grace period should he extended and this court will not substitute its judgment for that of the trial court absent a showing of manifest abuse of discretion.


text:
    A92A0039.
    McALISTER v. THE STATE.
    (419 SE2d 64)
   Johnson, Judge.

Todd Louis McAlister (McAlister) was convicted of trafficking in cocaine and possession of cocaine with intent to distribute. The possession conviction was subsequently vacated, as it constituted a lesser included offense. He appeals his conviction and the denial of his motion for a new trial.

On August 19, 1990, Rhonda Greathouse (Greathouse), turned on the oven in the house she shared with appellant and Darrin Prather (Prather) in order to cook breakfast. Shortly thereafter, smoke and flames erupted from the oven and she summoned the DeKalb County Fire Department for help. Upon investigating the source of the blaze, firemen observed what appeared to be a large amount of smoldering United States currency and a quantity of suspected cocaine in the bottom portion of the oven. The DeKalb County police and Narcotics Squad were called, and a field test of the substance found in the stove indicated the presence of cocaine. A search warrant was obtained and a search of the premises revealed other quantities of suspected cocaine, cash, and firearms.

Greathouse, as well as Prather and McAlister, were indicted in connection with the incident. Prather entered a guilty plea to possession of cocaine with intent to distribute, theft by receiving stolen property, and possession of a firearm by a first offender probationer. Both Prather and Greathouse testified for the State in the case against McAlister.

1. McAlister contends that the court erred in failing to grant a motion for mistrial, allegedly made during a bench conference, after the State had improperly placed McAlister’s .character in issue. At trial, the assistant district attorney asked Prather: “Have you and Todd McAlister ever sold drugs together?” He replied, “Yes, we have.” Defense counsel objected. A bench conference was held but not reported on the record. A curative. instruction was then given to the jury. Defense counsel asserts that he made a motion for a mistrial at the bench conference, which was denied. The State asserts that a motion for mistrial was not made at that time. It is undisputed, however, that the motion for mistrial, even if made, was not renewed on the record following the curative instruction. “Where the trial judge gives corrective instructions and thereafter counsel fails to request further instruction or renew his motion for mistrial, an enumeration addressed to such ground is without merit.” Chandler v. State, 143 Ga. App. 608, 609 (2) (239 SE2d 158) (1977). Therefore, even if we assume that defense counsel did make a motion for mistrial at the unreported bench conference, his failure to renew it following the curative instruction constituted a waiver. Williams v. State, 117 Ga. App. 79 (2) (159 SE2d 454) (1968); Evans v. State, 190 Ga. App. 302 (378 SE2d 903) (1989). The failure to renew the motion for mistrial following the curative instruction leaves this court nothing to review.

It must be noted that the question posited to the witness was clearly improper. The assistant district attorney undoubtedly knew at the time the question was asked that he was improperly putting the defendant’s character in issue and was challenging the defense to object to his blatant disregard for the rights of the defendant. As an officer of the court, the assistant district attorney has an obligation to ensure that proceedings are conducted in accordance with the rules of evidence and the laws of this state. It appears from the record that but for the objection of defense counsel and the curative instructions given by the court, his wilful disregard of his duties as an officer of the court would have gone uncorrected, and resulted in the violation of the defendant’s constitutional right to a fair trial.

2. In his second enumeration of error, McAlister has asserted that he was denied effective assistance of counsel. Specifically, it is asserted that trial counsel failed to make a timely motion for mistrial following the introduction of character evidence and did not object to the court’s charge to the jury regarding finding McAlister guilty of count three (possession with intent to distribute) and/or count four (trafficking). We must apply the two-prong test for determination of ineffectiveness of counsel as set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Strickland held that in order to make a finding of ineffectiveness, it must be established that the representation must fall below an objective standard of reasonableness and the defendant must show prejudice in that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, supra at 688. See Noland v. State, 202 Ga. App. 125 (413 SE2d 509) (1991); Wilson v. State, 199 Ga. App. 900 (406 SE2d 293) (1991).

It is unclear whether or not the motion for mistrial was made at the unreported bench conference. It is clear, however, that a timely objection was made and a curative instruction given to the jury. The jury was instructed that it could find McAlister guilty of count three (possession with intent to distribute) and/or count four (trafficking) of the indictment. The jury found him guilty as to both counts. At post-trial proceedings the conviction as to count three was vacated as it constituted a lesser included offense. Therefore, if there was error with respect to the charge, it was harmless. It is clear from a review of the entire record that McAlister’s trial attorney was effective under the Strickland standard, and that the alleged deficiencies in question would not have affected the outcome of the trial. We concur with the opinion of the trial judge, who stated at the hearing on the motion for a new trial: “I think (trial counsel) did as good a job as he could have. He had about as tough a case as I (have) seen up here.”

3. Finally, McAlister argues that the trial court erred in limiting his cross-examination of Prather as to any plea bargain he had. struck with the state in exchange for his testimony. Specifically, McAlister asserts that the trial court erred in refusing to allow him to ask the length of Prather’s sentence without producing a copy of the conviction. We find that this was error. Prather had personal knowledge of the length of his sentence and should have been allowed to testify about it. However, the error was harmless.

The trial court ruled that McAlister could not question Prather about the exact length of the sentence he received in exchange for his testimony without a certified copy of his conviction. This ruling from the trial court forced counsel to choose between forfeiting his right to the final closing argument and presenting particulars of the witness’ deal with the State. In making this ruling, the court relied upon established Georgia law that in order to impeach a witness by proof of a prior conviction, it is necessary to introduce a certified copy of the conviction into evidence. O’Toole v. State, 258 Ga. 614, 616 (4) (373 SE2d 12) (1988). Here, McAlister was not attempting to impeach by proof of prior conviction; rather he was trying to impeach by exploring the terms of “deal” Prather had struck with the State. This would include his understanding of the length of his sentence, which was presumably reduced in exchange for favorable testimony in this case. For this purpose, it would not be necessary to introduce a certified copy of the conviction. The witness had first-hand knowledge of the details of his sentence and that the sentence was a substantive part of the deal made for his testimony.

Decided May 4, 1992

Reconsideration denied May 18, 1992

Brownlow & Schaefer, Ira B. Brownlow, Jr., for appellant.

Robert E. Wilson, District Attorney, Robert W. Houman, J. Tom Morgan, Assistant District Attorneys, for appellee.

Nonetheless, we find that the court’s ruling was harmless because McAlister was afforded wide latitude to explore the details, except as to the exact length of the sentence. Compare Hines v. State, 249 Ga. 257, 259 (2) (290 SE2d 911) (1982); Owens v. State, 251 Ga. 313, 314 (1) (305 SE2d 102) (1983). Prather appeared at the trial in prison clothes and was allowed to testify that he entered into an agreement with the District Attorney with regard to a number of cases pending against him. Defense counsel was permitted to ask numerous questions about those other charges, both related to the incident in this case and others, without objection. The jury could easily extrapolate from that testimony that the witness had negotiated a reduction in the sentence received in exchange for his testimony in this case without knowing the exact length of his sentence. “ Tt is, of course, settled that harmless error will not authorize a reversal by this court. (Cit.)’ [Cit.]” Randall v. State, 195 Ga. App. 755, 756 (5) (395 SE2d 2) (1990).

Judgment affirmed.

Carley. P. J., and Pope, J., concur.


author: Sognier, Chief Judge.

text:
    A92A0505.
    DUPONT v. THE STATE.
    (418 SE2d 803)
   Sognier, Chief Judge.

Scott T. Dupont was convicted of driving under the influence of alcohol, and he appeals from the denial of his motion for new trial.

1. Appellant contends the evidence was insufficient to support the verdict. Savannah Police Corporal Kennedy testified that when he responded to a call concerning an automobile accident at 1:50 a.m. on March 17, 1991, he discovered a Volkswagen Jetta had been driven into the rear of a parked car. The Jetta was unoccupied when he arrived, but appellant and another man, who was being treated by emergency rescue personnel, were standing nearby. In response to two questions from Kennedy, appellant stated he was the owner and driver of the car. Upon detecting a strong odor of alcohol emanating from appellant and observing that appellant had dilated pupils and was very unsteady on his feet, Kennedy concluded appellant was intoxicated and took him into custody. Kennedy also opined that appellant was a less safe driver because of his condition. Results of an intoximeter test performed 50 minutes later showed appellant’s blood contained .17 grams of alcohol. Kathleen Lee, who resided in the house next to the accident scene, testified that she saw the collision occur and observed a man she identified as appellant alight from the car on the driver’s side. She stated that both appellant and his passenger were staggering and appeared intoxicated.

We conclude there was ample evidence from which any rational trier of fact could find beyond a reasonable doubt that appellant was guilty of the charged offense. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Johnson v. State, 194 Ga. App. 501-502 (1) (391 SE2d 132) (1990).

2. Appellant enumerates as error the trial court’s admission of Corporal Kennedy’s testimony that appellant had admitted driving the car. Appellant contends that the question occurred during a custodial interrogation and should be excluded because he was not advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). We disagree with the trial court’s conclusion that appellant failed to preserve the issue for appeal, but we agree with the court’s ruling on the merits.

Prior to trial, appellant made a motion in limine to exclude the subject evidence, and the trial court denied the motion. Appellant did not object at trial.when the testimony was introduced by the State and admitted into evidence. Contrary to the trial court’s ruling on appellant’s motion for new trial, when a motion in limine is denied, the movant need not interpose an additional objection during trial when the evidence is introduced in order to preserve the issue for appeal. Kilgore v. State, 247 Ga. 70 (274 SE2d 332) (1981).

The testimony, moreover, properly was admitted. Miranda warnings are not required when a police officer is conducting a preliminary on-the-scene investigation to determine the nature of the situation. Shy v. State, 234 Ga. 816, 818-823 (I) (218 SE2d 599) (1975). Even if the defendant is the focus of investigation, no Miranda warning is required when the inquiry is preliminary and has not become accusatory. Webb v. State, 179 Ga. App. 101, 102-103 (1) (345 SE2d 648) (1986). Here, upon arriving at the scene and observing a wrecked car with no one inside, Kennedy sought to determine the basic circumstances of the situation. He approached and questioned appellant, the first available source of information the officer encountered. He did not take appellant into custody until later. The question at issue thus fell squarely within the category of on-the-scene investigation for which no Miranda warning was needed. See id.; see also Dasher v. State, 140 Ga. App. 517, 518 (1) (231 SE2d 510) (1976). “The situation had not even reached a point of temporary detention which, if it had, would still not necessarily require Miranda warnings. [Cit.]” Webb, supra at 103 (1). Accordingly, we find no error.

3. Appellant next enumerates as error the denial of his mistrial motion made after the court clerk requested all witnesses to stand and be sworn at the beginning of the trial, and specifically requested that appellant, who was not planning to testify, participate in this process. Appellant contended this action impermissibly called the jury’s attention to his failure to testify, thereby infringing upon his Fifth Amendment rights. The trial judge agreed with appellant that the clerk’s action was inadvisable but determined that no additional instructions to the jury were necessary because his preliminary instructions had adequately informed the jury, and the judge then denied the mistrial motion. Assuming, without deciding, that appellant properly preserved his right to raise this issue on appeal, see Simmons v. State, 168 Ga. App. 1, 2-3 (3) (308 SE2d 27) (1983), we find no support in the record for appellant’s argument that he was unduly prejudiced by the court clerk’s actions. We agree with the trial court that the preliminary instructions given to the jury adequately explained the State’s burden of proof and specifically informed the jury that appellant was not required to present any evidence. Accordingly, we hold there was no abuse of discretion by the trial judge in the denial of the motion for mistrial. See generally Sabel v. State, 250 Ga. 640, 644 (5) (300 SE2d 663) (1983).

4. Appellant also moved for a mistrial during the State’s closing argument after the prosecutor, while commenting on appellant’s challenges to the accuracy of the equipment used to test his blood alcohol level, stated to the jury that appellant could have exercised his statutory right to an independent test if he had doubts about the precision of the State’s test. Appellant objected to this argument and moved for a mistrial on the ground that it impermissibly shifted to appellant the burden of proving his innocence. The court instructed the prosecutor not to continue that argument but denied the mistrial motion.

We find no error. Had appellant refused to submit to any chemical test, that refusal would have been admissible at trial under OCGA § 40-6-392 (d) as positive evidence creating an inference that such a test, if performed, would have shown the presence of alcohol in his blood. Givens v. State, 199 Ga. App. 709 (405 SE2d 898) (1991). Thus, we cannot agree that the prosecutor’s argument regarding appellant’s failure to take an additional test created an impermissible inference. Moreover, we view the prosecutor’s remarks as a permissible comment on appellant’s failure to adduce rebuttal evidence. See Williams v. State, 200 Ga. App. 84, 86 (3) (406 SE2d 498) (1991).

Decided May 18, 1992.

Weiner, Shearouse, Weitz, Greenberg & Shawe, N. Harvey Weitz, Charles V. Loncon, for appellant.

Spencer Lawton, Jr., District Attorney, Leonard M. Geldon, Assistant District Attorney, for appellee.

5. Appellant’s contention that the trial court improperly increased his sentence because he refused to plead guilty and insisted on a jury trial and did not show remorse is similarly without merit. The lack of remorse is a permissible topic of inquiry during sentencing, Isaacs v. State, 259 Ga. 717, 723 (9) (386 SE2d 316) (1989), and the transcript indicates that the trial court considered appellant’s decision to plead not guilty as evidence of his failure to show remorse at an earlier point in the proceedings. Moreover, entry of a harsher sentence than that recommended by the State reflects not unconstitutional vindictiveness but rather the risk inherent in electing to go to trial instead of plea bargaining. See Allen v. State, 193 Ga. App. 670-672 (388 SE2d 889) (1989).

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.