text:
    A91A1483.
    BURTON v. DeKALB COUNTY.
    (415 SE2d 647)
   Pope, Judge.

Plaintiff Tina M. Burton filed a complaint in negligence against defendant DeKalb County, alleging that on April 11, 1988, while working for the State in a building owned by the county, she slipped and fell on water the county had negligently permitted to accumulate on the rest room floor. The complaint further alleged that on March 30, 1989, plaintiff gave the county ante litem notice of her claim as required by OCGA § 36-11-1. Defendant denied liability and also raised the defenses of sovereign immunity and estoppel on the ground plaintiff had not presented notice of the claim within 12 months from the date the claim accrued as required by OCGA § 36-11-1.

Defendant county filed a motion for summary judgment supported by affidavits from the county’s chief executive officer and the county attorney attesting they had received no written notice of plaintiff’s complaint within 12 months of the incident complained of in the complaint. The plaintiff responded with her own affidavit attesting that on March 30, 1989, her previous attorney sent a letter to Mr. Matt Russo of the DeKalb County Risk Management office informing him of plaintiff’s claim. A copy of the letter sent on plaintiff’s behalf was attached along with a copy of a letter dated April 24, 1989, from Russo, signed in his capacity as Insurance Manager of the county Risk Management Division, Department of Finance, denying the claim on the ground of sovereign immunity. The trial court issued an order granting summary judgment to the county on the ground that plaintiff failed to give notice of the claim sufficient to meet the requirements of OCGA § 36-11-1.

In response to the plaintiff’s motion for reconsideration, the trial court permitted plaintiff to submit the affidavits of her former attorney and the attorney’s secretary, both of whom attested that the secretary had called Russo about plaintiff’s claim and Russo said the claim should be sent to his attention. The county filed the affidavit of Russo attesting that he did not recall giving such instructions to plaintiff’s attorney. A second order was issued reaffirming the grant of summary judgment on the ground that the letter to the insurance manager was insufficient to give ante litem notice as required by the statute and holding that even if Russo had instructed plaintiff’s attorney to send notice to him, the statutory requirements of ante litem notice may not be waived. Plaintiff appeals.

The applicable statute, OCGA § 36-11-1, provides: “All claims against counties must be presented within 12 months after they accrue or become payable or the same are barred . . . .” It is not truly an ante litem notice statute because if a complaint is filed and properly served within the 12-month time limit, the requirements of the statute are met. See Dement v. DeKalb County, 97 Ga. 733 (25 SE 382) (1896). The statute does not specify to whom the claim must be presented.

By contrast, a similar statute applicable to municipalities requires a claimant to give written notice to the “governing authority of the municipal corporation” prior to filing suit and within six months of the happening of the event upon which the claim is predicated. (Emphasis, supplied.) OCGA § 36-33-5 (b). Nevertheless, since the purpose of the statute is simply to give the municipality notice of the grievance and an opportunity to investigate and settle the claim before suit, this court has repeatedly held that substantial compliance with the requirements of the statute which puts the city on notice of the grievance is all that is required. See, e.g., Tanner v. City of Gainesville, 162 Ga. App. 405 (2) (290 SE2d 541) (1982); Hicks v. City of Atlanta, 154 Ga. 809 (270 SE2d 58) (1980); Jones v. Mayor &c. of Savannah, 52 Ga. App. 537 (184 SE 353) (1936). Consequently, in Hicks, this court held written notice of a claim mailed to the “Department of Environment and Street (Water Bureau)” was sufficient to give notice of a claim for damage from allegedly improper water pressure. Likewise, in City of Atlanta v. Fuller, 118 Ga. App. 563 (164 SE2d 364) (1968), written notice to the city’s legal department was held to be sufficient notice under the statute of plaintiff’s claim for injuries sustained in an automobile collision with a city truck. In general, this court has held that ante litem notice to a city is in substantial compliance with the statute if it is “ ‘addressed to and received by the municipality or one of its departments or officials.’ Chiles v. City of Smyrna, 146 Ga. App. 260, 263 (246 SE2d 117) [(1978)].” Tanner, supra at 406.

Defendant county argues that substantial compliance is not sufficient to satisfy the requirements of the statute governing claims against a county, however. This argument is based on Douglas County v. Brown &c. Enterprises, 114 Ga. App. 410 (2) (151 SE2d 510) (1966), in which this court held: “A letter written within the 12-months period by one of the plaintiffs in this case to the chairman of the defendant’s board of county commissioners, was not sufficient to amount to the presentation of a claim against a county required by [OCGA § 36-11-1].” It was assumed in that case that, although the notice statute does not specify the party to whom ante litem notice must be given in a claim against a county, ante litem notice to a county must be served in the same manner as service of a complaint. Service of a complaint upon a county must be made upon a majority of the commissioners (OCGA § 36-1-5) or upon the chairman of the board of commissioners or an authorized agent (OCGA § 9-11-4 (d) (5)). As noted above, however, OCGA § 36-11-1 does not specify to whom ante litem notice of a claim must be presented. Certainly, if notice is presented by way of a complaint filed within the 12-month notice period, it must be properly served as provided by statute. In that event, proper service of the complaint would necessarily comply with the notice requirement of OCGA § 36-1-1. But we find no requirement in the notice statute that ante litem notice must be presented in the same manner as service of process. No such requirement is imposed for presenting ante litem notice to a city. Pursuant to OCGA § 9-11-4 (d) (5), service of process upon a city must be made upon the president of the city council, the mayor or city manager or an authorized agent. Nevertheless, as discussed above, ante litem notice is sufficient if presented to the city attorney or any department or official of the municipal government.

Defendant county argues the same substantial compliance rules which apply to ante litem notice to cities should not apply to ante litem notice to counties because “ ‘[c]ounties are subdivisions of the state government . . . [whereas] municipalities are creatures of the legislature and their existence may be established, altered, amended, enlarged or diminished, or utterly abolished by the legislature. (Cits.)’ [Cit.]” Miree v. United States, 242 Ga. 126, 133 (1) (249 SE2d 573) (1978). We do not consider the constitutional difference between county governments and municipal governments to be dispositive of the issue at hand. The requirement of ante litem notice is a statutorily created benefit granted to both counties and municipalities by the legislature. Just as the purpose of the ante litem statute is to give municipalities a chance to investigate and possibly compromise a claim before suit is filed, “[t]he object of presenting a claim to a county before the institution of suit is to afford the county an opportunity to investigate the claim and ascertain the evidence and to avoid the incurrence of unnecessary litigation.” Davis v. Cobb County, 65 Ga. App. 533, 534 (15 SE2d 814) (1941). Consequently, we hold that substantial compliance with statutory requirements of ante litem notice is just as sufficient to give notice of a claim to a county as it is to give notice to a municipality. Therefore, the holding in Douglas County v. Brown &c. Enterprises, supra, is overruled. Cf. Sikes v. Candler County, 247 Ga. 115 (3) (274 SE2d 464) (1981) (in which the Georgia Supreme Court overruled Douglas to the extent that it created an inflexible requirement that presentation of a claim to a county must contain a statement of the amount of damages in order to be sufficient under the ante litem notice statute).

The plaintiff in this case presented notice of her claim not simply to a department of the county but to the person who served as the Insurance Manager for the Risk Management Division of the Department of Finance and that said individual received the notice and responded. Thus, the trial court erred in granting summary judgment to defendant county. Contrary to defendant’s argument, this case is materially distinguishable from Cobb v. Bd. of Commissioners &c. of Tift County, 151 Ga. App. 472, 473 (2) (260 SE2d 496) (1979), in which we held “notice to the county’s liability insurer does not satisfy [OCGA § 36-11-1.]” In this case, evidence was presented that the county did not have an outside insurance carrier but that claims were handled by the county’s own risk management employees.

Decided January 16, 1992

Reconsideration denied February 5, 1992

Eichelberger & Perrotta, James A. Eichelberger, Joseph D. Perrotta, for appellant.

Melinda J. Bruley, for appellee.

Judgment reversed.

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


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A91A1506.
    WYNN v. WYNN.
    (415 SE2d 287)
   Beasley, Judge.

Widow Wynn appeals the grant of summary judgment to the executor of her husband’s estate, with respect to her application for year’s support.

D. C. Wynn, Sr., published his last will and testament in 1979, bequeathing his wife $15,000 and specifying: “I note that at the time of my marriage to my said spouse we both had been previously married and had our own children. We agreed that our estates would remain separate and apart, but out of the love and affection and joy that my said spouse has brought to me in my latter years since our marriage, it is my wish that she receive Twenty-five Thousand . . . Dollars ... at the time of my death. I have provided for this by putting a Ten Thousand Dollar savings certificate at Douglas Federal Savings & Loan Association, said certificate being in our names and being payable on our deaths to each other. The remaining Fifteen Thousand was by the bequest heretofore provided in this Item. Notwithstanding all of the foregoing, the only bequest made in this Item is the Fifteen Thousand [dollars]. . . .” It was further specified that the provisions of the will “for my spouse and children are in lieu of year’s support.”

When Mr. Wynn died, approximately ten years later, there were two bank certificates of deposit made payable jointly to Mr. or Mrs. Wynn, the first for $15,000 on deposit at Fulton (formerly Douglas) Federal Savings and Loan Association, and the second for $10,000 on deposit at Trust Company Bank. Appellant acquired the proceeds of these certificates. She also filed an application for year’s support in the probate court. The executor responded with a caveat, asserting that appellant was precluded from receiving year’s support because she elected instead to take the will’s bequest.

The court ruled she was entitled to year’s support and awarded $25,000 and the home property in fee simple. The executor appealed to the superior court, which granted summary judgment to him.

Appellant contends that as surviving party to the certificates of deposit which were titled jointly in her name and that of her husband, she was the sole owner of those funds so they were not part of the estate and she was not precluded from receiving year’s support.

“Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created. . . .” OCGA § 7-1-813 (a). “Any transfers resulting from the application of Code Section 7-1-813 are effective by reason of the account contracts involved in this article and are not to be considered as testamentary.” OCGA § 7-1-815. Thus, there exists a presumption that right of survivorship was intended by the issuance of the joint certificates of deposit, absent clear and convincing evidence to the contrary. See Collins v. Collins, 176 Ga. App. 79 (335 SE2d 307) (1985).

“Any person who becomes a widow shall be entitled to year’s support. . . .” OCGA § 53-5-1 (a). However, “[a] testator by his will may make provision for his spouse in lieu of year’s support, in which case the surviving spouse must make an election.” OCGA § 53-5-5.

It is undisputed that the testator’s bequest to appellant was made in lieu of year’s support and that it was the testator’s intent to apply the funds represented by the $10,000 certificate of deposit specified in the will toward the bequest to appellant. However, the evidence did not establish as a matter of law that the $15,000 certificate on deposit with Fulton Federal at the time of the testator’s death was intended to satisfy the testamentary gift. Further, there was no evidence that the $10,000 certificate, on deposit at Trust Company Bank at the time of the testator’s death, had been created to satisfy the testamentary gift. Thus, a question of fact remains as to whether the funds received by appellant passed to her outside the estate and did not constitute an election to take under the will and if she is therefore entitled to the statutory year’s support. See generally Howard v. Howard, 150 Ga. App. 213 (3) (257 SE2d 336) (1979); Wilson v. Brown, 221 Ga. 273 (2) (144 SE2d 332) (1965).

Judgment reversed.

Carley, P. J., and Judge Arnold Shulman concur.

Decided January 21, 1992

Reconsideration denied February 5, 1992

C. Jerome Adams, for appellant.

Hudson & Solomon, James D. Hudson, Keith H. Solomon, for appellee.


author: Sognier, Chief Judge.

text:
    A91A1754.
    LOUIS v. THE STATE.
    (415 SE2d 289)
   Sognier, Chief Judge.

Anthony Louis was convicted in June 1989 of possession with intent to distribute nine bags containing approximately one gram of cocaine per bag, which had been discovered under Louis’s jogging suit in his crotch during a search of his person by police. In his appeal from that conviction, we affirmed the judgment but remanded the case with direction that the trial court conduct an evidentiary hearing on Louis’s claim that he was denied effective assistance of counsel at his trial. Louis v. State, 196 Ga. App. 276, 277-278 (2) (396 SE2d 25) (1990). Louis appeals from the trial court’s finding that he was not denied effective assistance of counsel. See id. at 278.

1. “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). As to appellant’s first enumeration, the transcript of the evidentiary hearing does not support his contention that the trial court’s handling of-appellant’s inquiries regarding his trial counsel’s alleged conflict of interest presented any ground for reversal.

2. Appellant contends he received ineffective assistance of counsel in his 1989 trial because his counsel, who also represented him during a 1987 trial on other drug charges (arising out of two alleged cocaine sales which occurred after appellant’s arrest based on the nine bags of cocaine found on appellant’s person), elicited in the 1987 trial an admission that the nine bags of cocaine (admitted as evidence of a similar transaction) belonged to appellant. There was evidence adduced at the hearing on appellant’s ineffective assistance claim that appellant made the 1987 admission as the result of a tactical decision to bolster appellant’s credibility and to offset the damaging effect of an earlier statement appellant had made denying any knowledge of the cocaine in his crotch. Appellant was acquitted in the 1987 trial; his admission in judicio was introduced by the prosecution during appellant’s trial 21 months later on the possession with intent to distribute charge which is the basis of this appeal.

Decided January 22, 1992

Reconsideration denied February 5, 1992.

Michael E. Bergin, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Joseph J. Drolet, Assistant District Attorneys, for appellee.

Regarding appellant’s arguments that his trial counsel improperly elicited the admission in the 1987 trial, even pretermitting the issue of this court’s jurisdiction to consider what occurred during appellant’s 1987 trial, we note that the decision to have appellant admit he possessed the cocaine found in his crotch clearly qualified as trial strategy, which, even if erroneous, did not constitute ineffective assistance of counsel. See generally Ranalli v. State, 197 Ga. App. 360, 365 (5) (398 SE2d 420) (1990). As to appellant’s argument that he received ineffective assistance of counsel in his 1989 trial because of the negative consequences in that trial of the use of his admission as part of the successful 1987 trial strategy, given our case law regarding tactical errors, see id., we conclude that the consequences of errors in trial strategy likewise do not present a claim for ineffective assistance of counsel.

3. The evidence adduced at the hearing on appellant’s motion does not support his contention either that his trial counsel failed to explore the possibility of negotiating a plea bargain with the prosecutor or that his trial counsel failed to communicate with appellant in general or in particular as to the prosecutor’s negotiation position. Furthermore, there was ample evidence from which the trial court could have found that appellant adamantly refused to accept any plea bargain if it required serving time in prison; accordingly, the trial court was authorized to find that the decision to proceed to trial was not the result of any ineffective assistance on the part of appellant’s trial counsel.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Pope, Judge.

text:
    A91A1758.
    ROME INDUSTRIES, INC. v. JONSSON et al.
    (415 SE2d 651)
   Pope, Judge.

Appellee Tow Tractors, Inc. (“TTI”) filed suit against appellant Rome Industries, Inc. (“Rome”), for breach of contract and other claims arising out of a series of business transactions between the parties. Rome filed a counterclaim against TTI and added appellee Lars Jonsson and two other individuals as defendants to the counterclaim. In addition to praying for money due on account, the counterclaim alleged the defendants-in-counterclaim were liable for tortious interference with the fiduciary relationship between Rome and its president by inducing Rome’s president to breach his fiduciary duty to the corporation. The counterclaim also alleged the parties were liable for conspiracy to induce the president to breach his fiduciary duty. The trial court granted summary judgment to appellees on the ground that these allegations do not state a claim under Georgia law. Rome appeals.

1. We have found no cases in Georgia involving a claim against a third party for tortious interference with the fiduciary relationship between a corporation and its officer. But see Nationwide Advertising Svc. v. Thompson Recruitment Advertising, 183 Ga. App. 678 (359 SE2d 737) (1987) (in which the plaintiff corporation alleged tortious interference with its proprietary, property, fiduciary and business rights for the defendant’s alleged hiring away of an employee, but this court affirmed summary judgment to the defendant on the ground that no material issue of fact was presented by the evidence). To determine whether a recovery may be had on such a claim it is necessary to analyze the claim further. “It is settled law that corporate officers and directors occupy a fiduciary relationship to the corporation and its shareholders, and are held to the standard of utmost good faith and loyalty. [Cit.]” Quinn v. Cardiovascular Physicians, 254 Ga. 216, 217 (2) (326 SE2d 460) (1985). See also OCGA § 14-2-842. The fiduciary relationship between a corporation and its officer arises out of the contractual or employment relationship between the two parties. Georgia has long recognized the tort of wrongful interference with employment relationships. See, e.g., West Va. Glass &c. Co. v. Guice & Walshe, Inc., 170 Ga. App. 556 (317 SE2d 592) (1984); Nager v. Lad ‘N Dad Slacks, 148 Ga. App. 401 (251 SE2d 330) (1978). As noted in Nager, supra, this right of action is based on the statute imposing liability in tort on one who procures another to commit a tortious act or to breach a contract, OCGA § 51-12-30. Id. at (3).

Usually, such actions arise from the alleged inducement of an employee to break his contract with the employer and to go to work for another. We see no reason, however, why liability must be limited to cases involving a total breach of the employment contract. “ ‘(T)he tort of the interference with contractual relations is not limited to the procurement of a breach of contract . . . (O)ne under a duty to render a performance has a property interest in the contract in that he has the right to render the required performance free from unjustified and unprivileged intentional invasions that retard performance or make the performance more difficult or expensive. Interference of that type constitutes an actionable tort which embraces within its scope all intentional invasions of contractual relations, including any act. . . interfering with the performance itself, regardless of whether breach of contract is induced. . . .’ [Cit.]” Perry & Co. v. New South Ins. &c., 182 Ga. App. 84, 89 (4) (354 SE2d 852) (1987). Tortious interference with employment relationships may include not only inducing an employee to breach his contract with the employer but also inducing the employee to breach a duty owed to the employer. In this case, Rome alleged appellees induced one of its officers to breach his fiduciary duty to Rome. In essence, the claim is one for tortious interference with contractual rights. The trial court erred in granting summary judgment to appellees on the ground the allegation fails to state a claim.

Decided January 17, 1992

Reconsideration denied February 5, 1992

Troutman, Sanders, Lockerman & Ashmore, June Ann Sanders, James A. Lamberth, Mark S. Vanderbroek, for appellant.

Alagia, Day, Marshall, Mintmire & Chauvin, A. Keith Logue, Andrew J. Ekonomou, Thomas J. Mullen, Kirby G. Atkinson, for appellees.

2. Summary judgment was properly granted, however, on that count of the counterclaim alleging appellees were liable for conspiracy to induce Rome’s officer to breach his fiduciary duty. “ ‘The averment of a conspiracy in the declaration does not ordinarily change the nature of the action nor add to its legal force or effect. The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done wrongfully. . . .’ [Cit.]” Kem Mfg. Corp. v. Sant, 182 Ga. App. 135, 143 (7c) (355 SE2d 437) (1987). “The trial court properly granted summary judgment on the conspiracy [count of the counterclaim] because [this count] is merely a restatement of the [claim set forth in the tortious interference count] described above.” U3S Corp. of Amer. v. Parker, 202 Ga. App. 374, 379 (414 SE2d 513) (1991).

Judgment affirmed in part and reversed in part.

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

Robert N. Powell, pro se.

       In a previous appearance of this case this court affirmed the grant of summary judgment to one of the other defendants-in-counterclaim on the ground that the evidence showed the defendant did not participate in the allegedly tortious activity. Rome Indus. v. McBride, 199 Ga. App. 510 (405 SE2d 329) (1991).


author: McMurray, Presiding Judge.

text:
    A91A1883.
    GRAY v. McKENNA.
    (415 SE2d 295)
   McMurray, Presiding Judge.

This is an action for removal of an executor. Appellant James H. Gray, Jr., petitioned the probate court to remove appellee Terry P. McKenna as executor of the estate of James H. Gray. This appeal is taken from the grant of appellee’s motion for judgment on the pleadings. Held:

“ ‘(T)he granting of a motion for judgment on the pleadings under (OCGA § 9-11-12 (c)) is proper only where there is a complete failure to state a cause of action or defense. “For the purposes of the motion, all well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false.” (Cits.)’ [Cit.] . . . ‘(A) judgment on the pleadings cannot be granted unless the pleadings affirmatively show that no claim in fact exists. (Cit.) . . .’ [Cit.]” Bacon v. Liberty Mut. Ins. Co., 198 Ga. App. 436 (401 SE2d 625). We also note that where, as in the case sub judice, the party moving for judgment on the pleadings does not present evidence in support of the motion, the motion is the equivalent of a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Seaboard Coast Line R. Co. v. Dockery, 135 Ga. App. 540, 543 (218 SE2d 263).

The petition in the case sub judice alleges in part that: Appellee is the sole executor under the will of the testator, James H. Gray. Appellant is one of three children of the testator (appellant’s two siblings are intervenors opposing appellant’s petition), and a beneficiary under the will which provides that, after the payment of certain special bequests, the rest and residue of the estate be placed in trust for the benefit of the testator’s widow and children. In a previous action in the superior court, the widow has surrendered her rights in the estate, including those provided under the will in exchange for certain compensation from the estate. In that action, the superior court ruled that the trust under the will had terminated and that the children were then entitled to have the remaining assets of the estate distributed to them after payment of any obligations of the estate. Nonetheless, appellee has made no distribution to appellant in the almost five years that appellee has controlled the estate. The primary asset of the estate is stock in a holding company, Gray Communications Systems, Inc. (“Gray Communications”), founded by the testator, which has subsidiaries involved in the television, newspaper, real estate, and transportation industries. At the time of his death, the testator owned approximately 52 percent of the outstanding stock of Gray Communications with the remainder in the hands of the public except for small amounts owned by individual members of the Gray family.

The petition also alleges that: Appellee has improperly used his control over the estate shares in Gray Communications to elect himself as the Chairman of the Board of Directors and Chief Executive Officer of Gray Communications for the purpose of enabling appellee to seize control of Gray Communications for his own personal benefit and not in furtherance of the interest of the estate or beneficiaries. Appellee, an attorney, lacked any experience in managing a large media conglomerate prior to his appointment to these positions.

This case is not the first action arising in connection with the estate of James H. Gray. Attached to the petition and incorporated by reference in appellant’s petition, along with the will of James H. Gray, are documents arising from these earlier cases, and the complaint in an equitable proceeding filed in the superior court simultaneously with the petition in the case sub judice. A judgment incorporated in the petition resolved certain claims by the testator’s widow against the estate and determined that a testamentary trust created in the will had terminated. Another judgment construed the testator’s will and gave direction to the executor. Also, attached is a settlement agreement and release which anticipate and provide for several matters including the terms for an attempt by appellant to purchase the estate’s shares in Gray Communications, distribution of the estate’s assets, and the settlement of certain litigation. Appellant’s petition alleges that appellee breached the settlement agreement in furtherance of a scheme for increasing his personal enrichment and in violation of his fiduciary duty.

The probate court has broad discretionary powers under OCGA § 53-7-148, including the authority to remove an executor upon a showing of waste, mismanagement, or that for any reason he is unfit for the trust reposed in him. Citing Pitts v. Attaway, 259 Ga. 455 (384 SE2d 629), appellee contends that in the case sub judice the discretion of the probate court is limited by the doctrines of res judicata, estoppel by judgment, release, and accord and satisfaction since the same facts upon which removal of the executor is sought have already been adjudicated or settled between the parties as shown by the documents incorporated into appellant’s petition.

This contention does not reach appellant’s allegations that appellee has breached the settlement agreement between the parties. The probate court concluded that any breach of the settlement agreement is a matter within the jurisdiction of the superior court which under its judgment in a prior action between the parties had retained jurisdiction for the purpose of insuring compliance with the settlement agreement. Appellee contends that under the reasoning in Pitts v. Attaway, 259 Ga. 455, supra, all matters concerning the settlement agreement should be decided in the superior court and not in the probate court. This is not correct. Appellant is not seeking enforcement of the settlement agreement in this action. The question of whether appellee has breached that agreement has not been previously determined and is relevant in the case sub judice as appellee relies upon it and the related release in opposing appellant’s petition.

Decided January 24, 1992

Reconsideration denied February 5, 1992.

Del Percilla, Jr., Powell, Goldstein, Frazer & Murphy, Robert M. Travis, William V. Custer IV, James A. Walker, Jr., for appellant.

Heyman & Sizemore, William H. Major, Langstaff & Plowden, Robert B. Langstaff, for appellee.

While the probate court may be bound by previous factual determinations of other courts under the doctrine of estoppel by judgment as applied in Pitts v. Attaway, 259 Ga. 455, supra, we are not aware of any principle which would preclude the probate court addressing the unresolved factual issues submitted by appellant’s petition. In this connection, we note that the superior court has no power to grant the relief sought by appellant. Pitts v. Attaway, 259 Ga. 455, 457 (4), supra. As only the probate court has jurisdiction to consider a petition for removal of an executor, it is necessary for the probate court to address any material unresolved factual issues submitted by appellant’s petition, including the question of whether the appellee has breached the settlement agreement.

Consequently, we must take as true, for purposes of this appeal from the grant of judgment on the pleadings, appellant’s allegation that appellee breached the settlement agreement. Since the settlement agreement provided consideration for the release, we must view the release as lacking efficacy. Adair v. Park, 97 Ga. App. 719, 722 (104 SE2d 473). In the absence of the waivers and concessions in these documents, there can be no doubt that appellant’s petition states a cause of action for the removal of appellee as executor on theories of conflict of interest and waste of assets. Nor is there an affirmative showing of the absence of a claim upon which relief may be granted. Since appellant’s petition states a viable claim, the judgment in favor of appellee must be reversed.

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.


text:
    A92A0203.
    AUTO-OWNERS INSURANCE COMPANY v. McCREA.
    (415 SE2d 294)
   McMurray, Presiding Judge.

The sole issue in this appeal is whether appellant’s automobile insurance application sufficiently apprised appellee that optional no-fault benefits were made available to him. Finding that “the words in the required explanatory statement are not sufficiently heavy in appearance to cause them to be more conspicuous than the print which surrounds them,” the superior court ruled that appellee was entitled to the maximum amount of optional no-fault coverage as a matter of law and granted appellee’s motion for summary judgment. This appeal followed. Held:

During the pertinent time period, OCGA § 33-34-5 (b) provided as follows: “Each initial application for a new policy of motor vehicle liability insurance sold in this state after November 1, 1982, shall contain a statement in boldface type signed by the applicant indicating that the optional coverages listed in subsection (a) of this Code section have been explained to the applicant.” This provision established a bright line requirement for automobile insurance applications, to wit: A boldface statement, signed by the applicant, indicating that optional coverages have been explained to the applicant. Southern Guar. Ins. Co. of Ga. v. Goddard, 259 Ga. 257, 258 (379 SE2d 778).

The parties agree that the required statement in the application under scrutiny contains an appropriate explanation signed by appellee. They disagree, however, as to whether the statement was made in boldface type.

“The common sense definition of boldface is that print which exhibits a face sufficiently heavy in appearance to cause it to be more conspicuous than the print which surrounds it.” Southern Guar. Ins. Co. of Ga. v. Goddard, 259 Ga. 257, 258, supra; Duncan v. Amer. &c. Ins. Co., 197 Ga. App. 548, 549 (398 SE2d 759).

We agree with the superior court that the statement signed by appellee is not more conspicuous than the print which surrounds it. “The appellant had the burden of showing error and [it] has not demonstrated that the observation and conclusion [of the superior court] were incorrect. Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16) (1981).” Duncan v. Amer. &c. Ins. Co., 197 Ga. App. 548, 549, 550, supra.

Atlanta Cas. Co. v. Powell, 200 Ga. App. 160 (407 SE2d 56), cited by appellant, is inapposite. In that case, unlike the case sub judice, the required statement was in boldface.

Judgment affirmed.

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

Decided January 23, 1992

Reconsiderations denied January 30, 1992 and February 5, 1992

Young, Clyatt, Turner, Thagard & Hoffman, William A. Turner, Jr., for appellant.

Sutton & Slocomb, Berrien L. Sutton, for appellee.


author: Andrews, Judge.

text:
    A91A1476.
    BRITT v. THE STATE.
    (415 SE2d 492)
   Andrews, Judge.

Britt and two other defendants were found guilty by a jury of selling cocaine in violation of the Georgia Controlled Substances Act. Britt was also convicted of using a communication facility (a telephone) in the commission of the sale.

1. Britt claims the trial court erred by denying his motion brought pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) claiming the state deliberately discriminated against him on the basis of race by using its peremptory strikes to exclude blacks from the jury. “ ‘To establish a prima facie case of purposeful discrimination in jury selection under Batson, a defendant must show that he is a member of a cognizable racial group, that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race, [and] that these facts and any other relevant circumstances raise an inference that the prosecutor used the practice of peremptory strikes to exclude the veniremen from the petit jury on account of their race. Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging the black jurors. The prosecutor may not rebut the defendant’s case merely by denying he had a discriminatory motive. The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court will then have the duty to determine if the defendant has established purposeful discrimination.’ (Punctuation and citations omitted.) Burgess v. State, 189 Ga. App. 790, 792-793 (377 SE2d 543) (1989). The defendant has the burden to complete the record to establish a prima facie case with information revealing ‘the racial composition of the panel from which the jury was selected, the racial breakdown of the strikes of both parties, and the racial composition of the resulting jury.’ Aldridge v. State, 258 Ga. 75, 77 (365 SE2d 111) (1988).” Shaw v. State, 201 Ga. App. 438 (411 SE2d 534) (1991).

The record is devoid of any evidence showing the racial composition of the panel from which the jury was selected. Without any such evidence, even if an inference is raised that the state used its peremptory strikes to exclude blacks on the basis of race, the defendant has failed to demonstrate that, as a result, the percentage of blacks on the jury was lower than the percentage of blacks on the panel. Thus, the defendant failed to make a prima facie case of discrimination under Batson. Brown v. State, 261 Ga. 184, 185 (402 SE2d 725) (1991); Aldridge v. State, 258 Ga. 75, 77 (365 SE2d 111) (1988); Ponder v. State, 194 Ga. App. 446, 449 (390 SE2d 869) (1990); Stewart v. State, 190 Ga. App. 162 (378 SE2d 387) (1989). Moreover, there is no competent evidence in the record of how the state and the defense exercised peremptory strikes, or the resulting racial composition of the jury. The only record of these facts is in colloquy between court and counsel and argument of counsel which reflects that the state used six of ten peremptory strikes to eliminate blacks, and that the resulting jury contained four blacks and eight whites. “Colloquies between court and counsel and argument of counsel, though included in the record, are not competent evidence of the facts observed therein, and do not suffice to make a proper record of facts required to establish a prima facie case of discrimination. Nat. Assn. &c. People v. Pye, 96 Ga. App. 685, 686 (101 SE2d 609) (1957); Johns v. State, 166 Ga. App. 656, 657 (305 SE2d 405) (1983).” Shaw, supra. No prima facie case of discrimination having been shown by the record, the trial court did not err in refusing to grant the motion.

2. The defendant claims the evidence was insufficient to support the convictions. On appeal of a criminal conviction claiming insufficient evidence, the evidence is viewed in a light most favorable to the jury’s finding that the defendant is guilty, and appellate review determines if there was sufficient evidence for a rational trier of fact to conclude that the defendant is guilty beyond a reasonable doubt. Gurlaskie v. State, 196 Ga. App. 794-795 (397 SE2d 66) (1990); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The state presented testimony from Henderson, an informant working for the Georgia Bureau of Investigation and the Tift County Drug Squad. Henderson’s personal observation of events and what Britt said to him was admissible. Moore v. State, 240 Ga. 210, 212 (240 SE2d 68) (1977); Hardeman v. State, 180 Ga. App. 632, 633-634 (349 SE2d 839) (1986) (voluntary, noncustodial incriminating statements of defendant admissible through testimony of anyone who heard them). The state introduced sufficient circumstantial evidence of a conspiracy between the co-defendants to sell cocaine so that the statements of co-defendants Jefferson and Green to Henderson during the pendency of the conspiracy were also admissible. OCGA § 24-3-5; Harris v. State, 255 Ga. 500, 501 (340 SE2d 4) (1986); Porterfield v. State, 137 Ga. App. 449 (224 SE2d 94) (1976) (where sufficient evidence of conspiracy shown, OCGA § 24-3-5 applies even though defendant not indicted for conspiracy). Henderson’s testimony showed the following: In cooperation with the GBI investigation, Henderson arranged by telephone to meet with Britt in person and at the meeting told Britt he needed two ounces of cocaine. On cross-examination, Henderson testified he could not remember whether he used the word cocaine or just told Britt he needed two ounces. Britt told Henderson to go home and he would come by his residence at noon that day. When Britt did not arrive at noon, Henderson telephoned him, and Britt told him he would be at Henderson’s residence in a few minutes. Shortly thereafter, co-defendant Jefferson arrived at Henderson’s residence, delivered the cocaine to Henderson, and told him to send the money for payment. Henderson later went to a trailer where he spoke to Jefferson and co-defendant Herman Green. Henderson paid Green for the cocaine, and complained they had not delivered him the full amount he had ordered. Green replied that he had “gotten the word” from “Big Daddy, the King Man.” Henderson testified that Big Daddy was the name commonly used by Green to refer to Britt. Later that day, Henderson went to Britt’s residence and told him that “they didn’t give me what I ordered.” Britt replied to Henderson, “that was all that Herman [co-defendant Green] could get to at that particular time.” Neither Britt nor the other two co-defendants testified or presented any evidence. This evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Britt was guilty of selling cocaine to Henderson as charged.

Decided February 5, 1992.

Ñaman Wood, for appellant.

However, Britt’s conviction for using a telephone in the commission of the sale must be reversed. The indictment charges that Britt “did call the residence of Herman Green alias Pee Wee and arrange the delivery of cocaine” by Green and Jefferson to Henderson. The state presented no direct evidence that Britt made such a telephone call. Instead, the state relied on an inference from circumstantial evidence that since Britt did not personally deliver the cocaine, nor was he observed personally contacting Green or Jefferson, he must have telephoned Green’s residence to communicate Henderson’s order. “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. The evidence on this charge was insufficient as a matter of law to exclude other reasonable inferences as to how Britt may have informed Green and Jefferson of the sale.

Judgment affirmed in part and reversed in part.

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

David E. Perry, District Attorney, for appellee.


text:
    A91A1590.
    ALLSTATE INSURANCE COMPANY v. CITY OF ATLANTA.
    (415 SE2d 308)
   Beasley, Judge.

Allstate appeals the grant of summary judgment on the defendant city’s cross-claim against insurer Allstate for indemnification in this negligence and nuisance action brought by Allstate’s insured, Kleeman, as the result of a collision with a city maintenance truck. (The court also denied the city’s motion for summary judgment on the main claim but that ruling is not questioned now.) The sole issue is the effect of a “General Release and Indemnification” executed by the insurer.

Following the collision on August 14, 1987, Kleeman received payment from Allstate for resultant damage. Allstate made demand on the city for subrogation of the amount paid. The city agreed to pay Allstate the $1,000 limit of its self-insurance program. In exchange, Allstate’s subrogation adjuster executed the document at issue.

The document, which was the city’s pre-printed form with blanks to be filled in for the occurrence, its date, and the amount of consideration, had two primary parts: “IN CONSIDERATION of the sum of ONE THOUSAND DOLLARS, to me in hand paid by the CITY OF ATLANTA, the receipt of which is hereby acknowledged, I . . . release and forever discharge said City, its officers and employees, from any and all claims, demands, actions, causes of action, suits, damages, loss and expenses, of whatsoever kind or nature for or on account of anything that has heretofore occurred, and particularly for or on account of a vehicular accident which occurred on or about the 14th day of August, 1987, at or near [address of incident].

“It is further understood and agreed that the payment of the above named sum is not to be considered as an admission on the part of the City, its officers, agents, servants or employees, of any liability whatsoever and the undersigned further covenants and agrees to indemnify and hold harmless the City of Atlanta, its officers, agents, servants and employees, from any and all claims, damages or costs which the said City of Atlanta, its officers, servants and employees, may be called upon to make as a result of the event hereinbefore referred to.”

Subsequently, Kleeman sued the city, asserting its vicarious liability for the alleged negligence under the doctrine of respondeat superior. Because of the city’s claim of sovereign immunity over and above its $1,000 insurance coverage, Allstate was served with the summons and complaint as Kleeman’s uninsured motorist carrier. Klee-man amended the suit to add a nuisance claim. The city filed a cross-claim against Allstate asserting that, by executing the “General Release and Indemnification,” Allstate agreed to indemnify the city from any liability in the matter so that the city was completely discharged.

Public policy is reluctant to cast the burden of negligent actions upon those who are not actually at fault. Thus “[i]t is well established in Georgia that contractual indemnities do not extend to losses caused by an indemnitee’s own negligence unless the contract expressly states that the negligence of the indemnitee is covered. [Cits.]” Southern R. Co. v. Union Camp Corp., 181 Ga. App. 691, 692 (1) (353 SE2d 519) (1987). See especially Batson-Cook Co. v. Ga. Marble Setting Co., 112 Ga. App. 226 (144 SE2d 547) (1965). “ ‘The words of the contract will be scrutinized closely to discover whether such an intent is actually revealed in them and every presumption is against such intention. In the absence of explicit language to the contrary, courts will not interpret an indemnity agreement as a promise by the indemnitor to save the indemnitee harmless on account of the latter’s own negligence.’ [Cits.]” Georgia State Tel. Co. v. Scarboro, 148 Ga. App. 390, 391 (2) (251 SE2d 309) (1978). Compare cases in which the indemnity agreements expressly provided coverage for the indemnitee’s negligence, such as Seaboard Coast Line R. Co. v. Dockery, 135 Ga. App. 540 (218 SE2d 263) (1975); Seaboard Coast Line R. Co. v. Freight Delivery Svc., 133 Ga. App. 92, 93 (1)-95 (210 SE2d 42) (1974); Gough v. Lessley, 119 Ga. App. 275, 277-279 (166 SE2d 893) (1969); Kraft Foods v. Disheroon, 118 Ga. App. 632, 633-634 (165 SE2d 189) (1968). This applies here even though the incident for which indemnification is sought precedes the alleged agreement to indemnify so that the allegedly negligent behavior and nuisance creation had already occurred and would not be affected by the agreement. An underlying public policy is to assure that people exercise due care in their activities for fear of liability, rather than act carelessly in the knowledge that indemnity insurance will relieve them. Rather than banning such agreements altogether, public policy allows them but requires an explicit undertaking. Even though the public policy against carelessness is moot here, explicitness is still required. Central of Ga. R. Co. v. Lester, 118 Ga. App. 794, 801 (2) (165 SE2d 587) (1968), unequivocally states that “ . . . Georgia courts never imply an agreement to indemnify another for one’s own negligence in the absence of express language. [Cits.]”

In this case, the agreement describes the specific event, i.e., the vehicular collision. The indemnification language is bereft of any express or explicit statement about coverage for the city’s own negligence, either direct or vicarious, or for its own act or omission as would constitute a situation “beyond mere negligence” such as creating or maintaining a nuisance. See City of Bowman v. Gunnells, 243 Ga. 809, 810 (1) (256 SE2d 782) (1979), quoting with approval language in Town of Ft. Oglethorpe v. Phillips, 224 Ga. 834 (165 SE2d 141) (1968), which discusses what constitutes a nuisance. It should have stated such coverage, if intended, with clarity and specificity for it is insufficient to imply such coverage from the circumstances of the incident giving rise to the agreement. See Southern R. Co., supra at 691 (1) and the cases cited therein. Even if the indemnity agreement was ambiguous as to coverage, it would have to be construed against the city as its drafter. Scarboro Enterprises v. Hirsh, 119 Ga. App. 866, 870 (2) (169 SE2d 182) (1969), addresses construction against the drafter especially in indemnity or exculpatory clauses.

Decided February 5, 1992.

Fain, Major & Wiley, Thomas E. Brennan, for appellant.

Mary C. Cooney, Joe M. Harris, Jr., Barnes, Browning, Tanksley & Casurella, Jeffrey G. Casurella, for appellee.

Moreover, the context in which this document was executed, and the document itself, are significant. This is not a situation of “an insurance company whose business it is to furnish indemnity for a premium and where indemnity is the principal purpose of the contract; . . .” Bohannon v. Southern R. Co., 97 Ga. App. 849, 850 (1) (104 SE2d 603) (1958). The document at issue is not an indemnity insurance contract, indemnifying the insured against future acts.

Summary judgment to the city on its cross-claim against Allstate for complete indemnification of liability in the suit was not authorized.

Judgment reversed.

Carley, P. J., and Judge Arnold Shulman concur.


author: Carley, Presiding Judge.

text:
    A91A1636.
    LEDFORD v. THE STATE.
    (415 SE2d 693)
   Carley, Presiding Judge.

Indicted for murder, appellant was tried before a jury and, notwithstanding his claim of self-defense, he was found guilty of voluntary manslaughter. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. An eyewitness was called to testify for the State. On direct examination, the State was allowed, over objection, to ask this witness whether he was familiar with appellant’s “reputation as far as it concerns the use of a knife?” When the witness gave a negative response to this question, the State was allowed, over objection, to call the investigating officer to testify that, in a pre-trial statement, the witness had indicated that appellant had a reputation “for cutting people.” The trial court’s refusal to sustain the objections to this evidence of appellant’s reputation is enumerated as error.

“A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case.” (Emphasis supplied.) OCGA § 24-9-83. Moreover, “a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes. Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982). Accordingly, if appellant’s reputation “for cutting- people” was relevant, then the testimony regarding the witness’ pre-trial statement would be admissible as impeaching evidence pursuant to OCGA § 24-9-83 and as substantive evidence pursuant to Gibbons.

“ ‘ “In a murder prosecution, evidence of prior quarrels and difficulties between the defendant and the victim, which persist until the time of the killing, thereby shedding light upon the motive of the killing and explaining conduct, is admissible.” ’ ” Williams v. State, 250 Ga. 553, 560-561 (2) (300 SE2d 301) (1983). However, the contested evidence in the instant case was not limited to the existence of any such prior quarrels and difficulties between appellant and the victim in this case. It related to appellant’s reputation for violence in general. Accordingly, unless appellant’s general reputation for violence was relevant, then the testimony would be inadmissible.

In a criminal case, evidence as to the general reputation of the victim for violence may be admissible to corroborate the accused’s claim of self-defense and to show the accused’s reasonable fear. See generally Henderson v. State, 234 Ga. 827, 830 (1) (218 SE2d 612) (1975). However, the State cites no controlling or persuasive authority for the proposition that the general reputation of the accused for violence may be admissible for any purpose where, as here, the accused himself has not first put his own character into issue. “ ‘Character is circumstantial evidence of conduct and state of mind ... A person is more likely to act in accord with his character than contrary to it.’ [Cit.] Nonetheless, because the probative value of such evidence is outweighed by the danger of prejudice, such evidence is generally legally irrelevant. [OCGA § 24-2-2.] A specific application of the general rule is that in criminal cases, ‘no evidence of general bad character .. . shall be admissible unless and until the defendant shall have first put his character in issue.’ [OCGA § 24-9-20 (b).]” (Emphasis in original.) Walraven v. State, 250 Ga. 401, 407 (4b) (297 SE2d 278) (1982). “ ‘[T]he State cannot rebut or question the presumption of a defendant’s good character unless the defendant first chooses to place his character in issue. To say otherwise, would render meaningless one of the primary objectives of OCGA § 24-9-20 (b), to preserve the presumption of a defendant’s innocence. . . . [Cit.]’ ” (Emphasis in original.) Warren v. State, 197 Ga. App. 23, 25-26 (2) (397 SE2d 484) (1990). “[T]he [accused] alone can put his general character in issue in any criminal case].] [This is done] by his [own testimony or] by sworn testimony introduced in his behalf. [Cits.]” Barnes v. State, 24 Ga. App. 372, 373 (3) (100 SE 788) (1919). See also Askew v. State, 135 Ga. App. 56, 57 (1) (217 SE2d 385) (1975). Thus, unless and until the accused introduces evidence of his own character or reputation, the State may not show “that his general reputation for peaceableness and violence was bad. [Cits.]” Clark v. State, 52 Ga. App. 254, 255 (183 SE 92) (1935). In the instant case, appellant had not himself opened the character door. Accordingly, appellant’s general reputation for violence was legally irrelevant and the testimony was inadmissible.

“In the instant case the effect of the challenged testimony in placing [appellant’s] character in issue can hardly be characterized as ‘incidental’: its sole apparent purpose was to do just that, by showing both ‘general bad character,’ [cits.] and a specific interest in [‘cutting people’].” Santamaria v. State, 165 Ga. App. 288, 289 (1) (299 SE2d 758) (1983). If the State wished to attempt to show appellant’s motive, bent of mind or intent in stabbing the victim, it could have offered evidence of the existence of prior quarrels and difficulties between appellant and the victim. Williams v. State, supra at 561 (2). In the alternative, pursuant to Uniform Superior Cour t Rule 31.3, the State could have sought to introduce evidence of any specific prior similar instances wherein appellant may have assaulted others. Jones v. State, 257 Ga. 753, 759 (1c) (363 SE2d 529) (1988). However, the State should not have been allowed to introduce in its case-in-chief evidence of appellant’s general reputation for violence. Barfield v. State, 89 Ga. App. 204, 205 (79 SE2d 68) (1953). The erroneous admission of the legally irrelevant evidence mandates a reversal of appellant’s conviction and the grant of a new trial.

2. Although, at the time of the instant trial, appellant was not entitled to introduce evidence of the victim’s specific acts of violence directed toward others, such evidence will be admissible at appellant’s retrial if he complies with the applicable procedures. Chandler v. State, 261 Ga. 402, 407 (3b, c) (405 SE2d 669) (1991).

3. Appellant’s remaining enumerations of error have been considered and are found either to be without merit or to be unlikely to recur at retrial.

Judgment reversed.

Beasley, J., and Judge Arnold Shulman concur.

Decided February 5, 1992.

W. Michael Maloof, for appellant.

Michael H. Crawford, District Attorney, for appellee.


author: Cooper, Judge.

text:
    A91A1783.
    LEWIS v. THE STATE.
    (415 SE2d 318)
   Cooper, Judge.

Appellant was indicted on one count of entering an automobile and one count of aggravated assault. A jury trial resulted in a guilty verdict on the entering an automobile count, and a mistrial was declared on the aggravated assault count, as the jury was unable to reach a unanimous verdict. Appellant appeals from the denial of his motion for new trial. As his sole enumeration of error, appellant contends the trial court failed to respond adequately to the jury’s questions on the independence of each count.

During deliberation, the jury requested that the trial court “respecify what lesser charges may be found by the jury.” The jury’s note then listed the word, “assault,” followed by the letters, “A.G.,” in brackets and listed “entering a vehicle” followed by “trespass” in brackets. The note also asked that the charges be listed. In response, the court wrote “none” next to “assault” and wrote “Yes” following “trespass.” As to the last question, the court indicated, “none for aggravated assault and criminal trespass for entering an auto.” The note and the court’s response were read in open court, and no objection was raised thereto.

In response to another specific request by the jury, the court recharged the jury on justification and defense of property, after which one juror asked if it were necessary to tie the two counts together or whether they could be decided individually. The court then explained that the counts were independent and that the State had the burden of proving the essential elements of each count beyond a reasonable doubt. Appellant reserved objections after the re-charge and argues on appeal that the jury’s questions indicated some confusion on their part with respect to lesser included offenses and the elements of each crime and contends that the trial court erred in not fully re-charging on the elements of each crime, although the record contains no such request by the jury.

“When the jury requests an additional instruction on a specified point, it is within the trial court’s discretion to confine its instruction to the scope of the jury’s inquiry. [Cit.]” Walker v. State, 198 Ga. App. 422 (2) (401 SE2d 613) (1991). Although the trial court did not further instruct the jury “to recall and apply all the other instructions of the court” (id.), we do not find that the instructions made an erroneous impression on the jury. See Johnson v. State, 185 Ga. App. 167 (8) (363 SE2d 773) (1987). Accordingly, the trial court did not err in denying appellant’s motion for new trial.

Decided February 5, 1992.

Steven W. Reighard, Gary W. Washington, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Henry A. Hibbert, Rebecca A. Keel, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A2044.
    THE STATE v. PRUITT.
    Decided February 5, 1992.

      Gerald N. Blaney, Jr., Solicitor, William F. Bryant, Assistant Solicitor, for appellant.

      Alan I. Begner, Paul C. Hunger, for appellee.
    (415 SE2d 497)
   Carley, Presiding Judge.

By way of accusation, appellee was charged with obstruction of a law enforcement officer. Thereafter, the trial court conducted a hearing and ordered the dismissal of the accusation for lack of “any probable cause to charge [appellee] with obstruction” of a law enforcement officer. Pursuant to OCGA § 5-7-1 (1), the State appeals from that order.

It does not appear from the record whether a post-arrest preaccusation probable cause hearing was held pursuant to Uniform State Court Rule 26. In any event, however, it is clear that the trial court had no jurisdiction to dismiss the accusation based upon the purported lack of probable cause. First Nat. Bank &c., Macon v. State, 237 Ga. 112 (227 SE2d 20) (1976). Accordingly, the erroneous dismissal of the accusation must be reversed.

Judgment reversed.

Beasley, J., and Judge Arnold Shulman concur.


text:
    A91A2076.
    BENNETT v. THE STATE.
    (415 SE2d 310)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of possession of cocaine with intent to distribute and of misdemeanor possession of marijuana. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt. In related enumerations of error, appellant urges the general grounds only as to his conviction for possession of cocaine with intent to distribute.

A co-indictee testified for the State and implicated appellant as a party in a conspiracy to collect, transport, package, and distribute cocaine. Her testimony as to appellant’s role as a courier in this conspiracy was partially corroborated through the testimony of an investigating officer, who had made a traffic stop of an automobile driven by appellant and owned, by another co-indictee. Testimony of appellant’s prior cocaine sales was admitted to shed light on the extent of appellant’s knowledge and participation in a conspiracy to distribute cocaine.

“On appeal of a criminal conviction, the appellant is no longer indulged with the presumption of innocence, for the jury has rendered its verdict; [this court does] not weigh the evidence or determine the witness’ credibility but construe[s] the evidence to uphold the verdict. [Cit.]” Clark v. State, 197 Ga. App. 318, 320 (1) (398 SE2d 377) (1990). “In Georgia, the testimony of an accomplice used to convict the accused of a crime must be supported by independent corroborating evidence as to the identity and participation of the accused tending to connect him to the crime or leading to the inference that he is guilty. [Cit.] Slight evidence of a defendant’s identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony and thus support the verdict. [Cit.] The necessary corroboration may be by circumstantial evidence. [Cit.]” Harris v. State, 180 Ga. App. 56, 57 (1) (348 SE2d 476) (1986). Also “ ‘[guilty] knowledge or scienter may be proved, like any other fact, by circumstantial evidence.’ ” Garrett v. State, 160 Ga. App. 877, 878 (1) (288 SE2d 592) (1982). See also Cobb v. State, 125 Ga. App. 556 (1) (188 SE2d 260) (1972). “ ‘While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, “ ‘presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.’ ” (Cit.)’ [Cits.]” Butler v. State, 194 Ga. App. 208, 209 (2) (390 SE2d 278) (1990). The evidence adduced at appellant’s trial authorized a rational trior of fact reasonably to find proof beyond a reasonable doubt of his guilt as a party to the crime of possession of cocaine with intent to distribute. Langham v. State, 196 Ga. App. 71, 72 (2) (395 SE2d 345) (1990); Riley v. State, 191 Ga. App. 781, 782 (1) (383 SE2d 172) (1989). Accordingly, the general grounds are without merit.

Decided February 5, 1992.

Herbert W. Benson, for appellant.

David E. Perry, District Attorney, Ronald S. Smith, A. Douglas Newsome, Assistant District Attorneys, for appellee.

Judgments affirmed.

Beasley, J., and Judge Arnold Shulman concur.


author: Birdsong, Presiding Judge.

text:
    A91A2221.
    CHERGI v. THE STATE.
    (415 SE2d 317)
   Birdsong, Presiding Judge.

Paul Eugene Chergi appeals his conviction of possession of a firearm by a convicted felon, theft by receiving stolen property, financial transaction card theft, and violation of the GCSA — possession of cocaine. The sole error asserted is that the trial court erred by allowing a uniformed police officer to remain at the State’s counsel’s table throughout the trial. Held:

While acknowledging contrary precedent (e.g., Nunnally v. State, 235 Ga. 693 (221 SE2d 547); Herreras v. State, 190 Ga. App. 359 (379 SE2d 12)), Chergi nevertheless argues that uniformed police officers should not be allowed to sit at counsel table during presentation of the case. Chergi, without reference to the transcript, asserts that at the inception of the trial he objected to the policeman remaining in the courtroom during trial. Although not required to do so (Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (389 SE2d 251)), we have reviewed the likely places in the transcript that such an objection would have been recorded and have found no such objection by Chergi’s counsel. Instead, the transcript shows that after the prosecutor moved to allow the police officer to sit at counsel table during the presentation of the case, Chergi’s counsel stated, “I don’t object to the request by the D. A.’s office, though.” As our review of the transcript did not show that this express waiver was withdrawn, this waiver of the issue leaves us nothing to review. Further, we cannot consider this argument which is being presented for the first time on appeal. Scott v. State, 243 Ga. 233, 234-235 (253 SE2d 698); Cooper v. State, 173 Ga. App. 254, 256 (325 SE2d 877).

Judgment affirmed.

Pope and Cooper, JJ., concur.

Decided February 5, 1992.

John D. J. Bloodworth, for appellant.

Thomas C. Lawler III, District Attorney, David K. Keeton, Debra K. Turner, Assistant District Attorneys, for appellee.


text:
    A91A2232.
    SMITH v. THE STATE.
    (415 SE2d 495)
   Birdsong, Presiding Judge.

Donny Sewell Smith appeals his judgment of conviction of DUI and the sentence. A police officer observed a vehicle driven by appellant weave and cross over into the oncoming lane. When the officer asked appellant how he was doing tonight, appellant responded “not too good.” The police officer asked why, and appellant stated it was “because I been drinking and you pulled me over,” or words to this effect. The police officer ordered appellant from the vehicle and observed the strong smell of alcohol. Appellant was asked to recite the ABC’s portion of the sobriety test and did so poorly, leaving some letters out or reciting them out of order. Appellant declined to take further sobriety tests and stated he was too tipsy to touch his nose with his finger. At this point appellant was placed in the patrol car and was given a Miranda warning. The officer also testified appellant was disarranged; he did not really know where he was; he did not seem to know what he was saying; and he mumbled and stuttered. The arresting officer testified that in his opinion appellant’s faculties were impaired, and the intoximeter officer opined that appellant when observed was under the influence of alcohol. Appellant subsequently refused to take the state administered chemical test. Held:

1. Appellant, citing Berkemer v. McCarty, 468 U. S. 420 (104 SC 3138, 82 LE2d 317), in essence asserts the trial court erred in admitting evidence of appellant’s taking the ABC test and the results thereof, as appellant was not first given a Miranda warning; and, that this evidence also would taint the probable cause necessary for appellant’s arrest.

The trial court ruled that any statements made or tests given subsequent to the alphabet test and prior to the reading of Miranda rights were not admissible. Basically, the trial court concluded that after the ABC test was taken and failed a reasonable person would believe he was under arrest and would go to jail. “The test for determining whether a person is ‘in custody’ at a traffic stop is if a reasonable person in the suspect’s position would have thought the detention would not be temporary.” Hughes v. State, 259 Ga. 227 (1) (378 SE2d 853), citing Berkemer, supra. The trial court’s determination that appellant was not in custody prior to the time that he had taken and failed the ABC test is not clearly erroneous, thus it will not be disturbed on appeal. Hughes, supra at 228 (1); Magher v. State, 199 Ga. App. 508, 510 (405 SE2d 327).

Additionally, in Hughes, supra at 228 (2 b) the Supreme Court of Georgia expressly held that the alphabet test and physical dexterity tests are not inadmissible under the Fifth Amendment of the United States Constitution because they were not evidence of a testimonial or communicative nature. There is no reason this holding should not also extend to a claim of violation of OCGA § 24-9-20. Classic Art Corp. v. State of Ga., 245 Ga. 448, 449 (265 SE2d 577). (Code Ann. § 38-415, currently OCGA § 24-9-20, is governed by the same standards as the Fifth Amendment privilege against self-incrimination.)

Appellant’s first and second enumerations of error are without merit.

2. Appellant asserts in his third enumeration of error that the trial court erred in giving a charge, which he claims contained an expression of the trial court’s opinion to the jury regarding “the intoxication of the defendant” in violation of OCGA § 17-8-57. The charge in its entirety reads as follows: “I instruct you that the manner of driving may be taken into account when there is evidence that the defendant has been drinking. The mere showing of the defendant’s having been drinking without proof of his driving or his manner of driving is not sufficient. Proof of the smell of alcohol or odor of alcohol or the absence thereof upon the breath of the defendant may be considered as a circumstance regarding the intoxication of the defendant.”

Thurston v. State, 186 Ga. App. 881 (2) (368 SE2d 822), cited by appellant, is distinguishable and not controlling. Likewise appellee’s reliance on the language of Turner v. State, 95 Ga. App. 157, 158 (97 SE2d 348) is misplaced. Although the language used in an appellate court decision may embody sound principles of law, it is not always appropriate to employ such language in instructing the jury. Griffin v. State, 154 Ga. App. 261, 263 (2) (267 SE2d 867).

“ ‘ “It is a fundamental rule in Georgia that jury instructions must be read and considered , as a whole in determining whether the charge contained error.” ’ ” Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177). In addition to the questioned charge, the trial court instructed the jury as to the presumption of innocence, the State’s burden of proof beyond a reasonable doubt, that the burden of proof never shifts to the defendant to prove his innocence, the definition of reasonable doubt, the duty of the jury to acquit the defendant if the State fails to prove guilt beyond a reasonable doubt, the definition of direct and circumstantial evidence, the weight of evidence as a question of fact for jury determination, the statutory prohibitions of OCGA § 40-6-391 (a) (1) pertaining to driving under the influence of alcohol to the extent that it is less safe for the person to drive, that facts and circumstances which merely place a defendant under a grave suspicion of the crime charged or which merely raise a speculation or conjecture of guilt are not sufficient to authorize defendant’s conviction, that it is not contrary to the law of this state for a driver merely to operate a vehicle after consuming some amount of alcohol, and that by no ruling or comment which the court has made during the progress of the trial has the court intended to express any opinion upon the facts of the case, upon the credibility of the witnesses, upon the evidence or upon the guilt or innocence of the defendant. Considering the instructions as a whole, we are satisfied that the jury was not misled by the questioned charge and that a charging error did not occur.

Decided February 5, 1992.

William Schneider, for appellant.

Nancy N. Bills, Solicitor, for appellee.

Appellant’s other assertions are likewise without merit.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A2247.
    FREEWAY JUNCTION BAKERY, INC. et al. v. KRUPP CASH PLUS III.
    (415 SE2d 312)
   Birdsong, Presiding Judge.

This is an action by Krupp Cash Plus III against Freeway Junction Bakery, Inc. d/b/a Besmanoff Bakery, and Tawfik S. El Eman on a lease agreement and guarantee, for failure to pay rent for a shopping center store, the delinquency beginning April 1989, and exceeding $17,000. Defendants/appellants answered jointly, saying they were induced to enter the lease by Krupp’s promise in the lease that they could operate a delicatessen, as follows: “it is further anticipated that the bakery will add the sale of deli items at a later date”; but that after appellants signed the lease, Krupp altered this provision by adding “with landlord’s written consent”; that appellants never received a copy of the altered lease, otherwise they would not have agreed to it; and that thereafter Krupp prohibited them from maintaining a deli to their detriment. Appellants also counterclaimed for fraud and resulting damages.

Exhibits produced for and in response to Krupp’s motion for summary judgment show that after appellants occupied the premises for several months, El Eman wrote a letter on March 3, 1989, asking “permission” to improve his bakery with the addition of a delicatessen. Krupp replied on April 19, 1989: “Krupp is prohibited from allowing the activation of the clause in your lease regarding operating a deli due to the exclusive in other tenants’ leases. Please consider maintaining the bakery operations that have been established and running since June of 1988. The bakery has been a main attraction at the shopping center and we would like to have it remain.” On April 25, 1989, appellants’ attorney wrote Krupp giving notice that Krupp’s refusal to allow appellants to operate a deli was a substantial default in its obligations under the lease, since “[a]t every stage of the negotiations . . . my client made it clear that his business was to be a bakery/deli operation, and that, without the deli, the investment would not be profitable and he would not sign the lease”; and that therefore appellants considered the lease null and void, and would seek damages for a substantial investment plus future lost profits. In his affidavit, El Eman averred that after appellants quit the premises, the tenant who next entered into possession sells deli items of the type appellants would have sold.

The trial court granted summary judgment to Krupp, finding in effect that after appellants signed the lease, Krupp added “with landlord’s written consent” to the provision anticipating that appellants would operate a deli, and that this “material change” to the proposed lease was a counteroffer by plaintiffs, which appellants accepted by entering possession. State of Ga. v. United States Oil Co., 194 Ga. App. 1 (389 SE2d 498).

As to the issue of whether this counteroffer was communicated to appellants, the trial court did not decide as fact that appellants did receive a copy of the document after Krupp’s alteration of it, but concluded that appellants failed to answer Krupp’s request for admission as to whether the document was “genuine, true and correct,” and failed to seek withdrawal of their technical admission (OCGA § 9-11-36 (a) (2) and (b)), and thus could not maintain the lease was “altered.”

Appellants contend Krupp’s summary judgment was engendered by a misperception, for they fully disputed the genuineness of the lease in their answers to Krupp’s interrogatories, which included the questions, “if defendant does not admit Paragraph [1-7] of [Krupp’s] Request to Admit. . . please state the facts on which defendant does not admit the same.” Held:

The trial court found that “[i]t is undisputed that neither defendant filed a separate answer to the Requests for Admissions.” We find this to be error. The record is in disarray, but immediately following the joint answer of both defendants and preceding a sheriff’s entry of service of the complaint, there is of the same filing date as the joint answer a “response to request for admission and genuineness of documents in behalf of Freeway Bakery, Inc.” in which all requests for admission are denied. It thus appears that the trial court should have considered appellants’ argument below that their failure to file a response to request for admission for El Eman was an “inadvertent failure of counsel,” and also should have considered the effect on El Eman’s case of Freeway Bakery’s response to request for admissions.

Moreover, Krupp is not entitled to summary judgment merely upon an implied admission that the lease document was genuine, that is, not altered, when both appellants answered plainly in their answer to the complaint and their answers to interrogatories that the lease document was altered without their knowledge after they executed it. Krupp would not be entitled to summary judgment unless “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). Requests for admission and responses thereto, or the failure to respond resulting in an implied admission, are not pleadings but are in the nature of evidence relating to proof. Brooks v. Roley & Roley Engineers, 144 Ga. App. 101 (240 SE2d 596); Forsyth v. Peoples, Inc., 114 Ga. App. 726 (152 SE2d 713). As such, they carry no more dignity than other evidence in the case and would not alone entitle the opposing party to summary judgment unless the admissions “removed all issues of fact” and entitled the opposing party to judgment as a matter of law. Moore &c. Partnership v. Stack, 153 Ga. App. 215, 217 (264 SE2d 725). In view of both appellants’ unequivocal position asserted in the record that the lease was altered, the failure of one appellant to file a separate denial of requests to admit did not remove all issues of fact and entitle Krupp to judgment.

Moreover, the issue whether Krupp’s alteration of the lease was communicated to appellants is not directly answered by an admission that the lease is “genuine, true and correct,” in the face of both appellants’ unswerving assertion that they never received a copy of the lease as altered. Not even considering Freeway Bakery’s response to Krupp’s requests for admission on the one hand and El Eman’s answers to interrogatories on the other, any admission that the lease relied on by Krupp is “true, correct and genuine” would not prove the alteration was communicated to appellants. Such an admission does not address whether the alteration was communicated; indeed, appellants concede the document as it now stands is the “genuine” lease. They simply deny having seen it after it was altered, and the admission by one that the lease sued upon by Krupp was “genuine, true and correct” cannot be interpreted to prove they saw it. See similarly Stalvey v. Osceola Indus., 124 Ga. App. 708 (185 SE2d 629).

Decided February 5, 1992.

Joseph R. Baker, Lillian L. Neal, for appellants.

A. Frank Settlemyer, for appellee.

Since it is appellant’s burden to prove harmful error on appeal, where no transcript is provided by appellant from which we might conclude error has been committed, generally we would presume the trial court’s findings were proper and supported by the evidence (see Young v. First Amer. Bank of Ga., 196 Ga. App. 348 (396 SE2d 73)); but the absence of a transcript does not authorize such presumption of correctness when the record plainly shows harmful error. In view of the error in finding that both appellants failed to answer Krupp’s requests for admission, and the further error of failing to consider, on behalf of both appellants, Freeway Bakery’s response denying Krupp’s request for admission as well as both appellants’ answers to the complaint and their answers to interrogatories clearly indicating that they did not intend to admit Krupp’s requests and clearly setting up that the lease document had been altered without their knowledge, issues of fact remain whether the alteration of the lease after appellants signed and initialed it was in fact communicated to appellants, and if it was not, whether this amounted to fraud allowing the recovery of damages; and whether Krupp’s refusal to permit appellants to operate a deli amounted to a substantial default of the agreement of the parties.

Judgment reversed.

Pope and Cooper, JJ., concur.


text:
    A91A2252.
    ALLAIN v. THE STATE.
    (415 SE2d 315)
   Birdsong, Presiding Judge.

Dennis Allain appeals his convictions of operating a motor vehicle after being declared a habitual violator and driving under the influence of alcohol. He contends the verdict is contrary to law, contrary to the evidence, and strongly against the weight of the evidence, and he contends the trial court erred by denying his motion for a new trial because of newly discovered evidence (enumeration of error 1). He further contends there was insufficient evidence to convict of the habitual violator offense (enumeration of error 2), and he contends the trial court erroneously denied a motion to reopen the case after the evidence closed (enumeration of error 3). Held:

1. As Allain’s first enumeration of error contains unrelated contentions, it violates OCGA § 5-6-40. Hoffer v. State, 192 Ga. App. 378, 382 (384 SE2d 902). Further, except for the allegation concerning newly discovered evidence, the argument on the general grounds merely repeats the enumeration of error. Allain presents no specific argument, cites no authority, and makes no reference to the transcript or record to support these portions of the enumeration. Therefore, those issues are deemed abandoned. Court of Appeals Rule 15; Camp v. State, 166 Ga. App. 208, 211 (303 SE2d 540).

In any event, the transcript reveals ample evidence, including his .3 blood alcohol level and the evidence discussed in Division 2, from which any rational trier of fact could find beyond a reasonable doubt that Allain was guilty of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

The remainder of the enumeration contends the trial court erred by denying Allain’s motion for a new trial because of newly discovered evidence. This argument also fails to refer to any portion of the record or transcript and cites no authority supporting the argument. See Court of Appeals Rule 15 (c) (1) and (3).

Allain’s motion merely contended a newly discovered witness would testify he had not helped the police push Allain’s car off the sidewalk on the night in question. This testimony would be contrary to testimony by a prosecution rebuttal witness, but would not be relevant to any issue in the case. Allain argues that this testimony would have produced a different result at trial because two jurors said that the testimony would have caused a different result. Jurors, however, cannot impeach their verdict. OCGA § 9-10-9; Bissell v. State, 153 Ga. App. 564, 567 (266 SE2d 238). More significantly, however, we agree with the trial judge that the testimony from this witness was relevant only to contradict the police officer’s testimony. In that event, the testimony was only impeaching and did not constitute newly discovered evidence. Thus, Allain failed to meet his burden of satisfying all of the criteria of OCGA § 5-5-23. See Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792); Westbrook v. State, 186 Ga. App. 493, 497 (368 SE2d 131). This portion of the enumeration of error is without merit.

2. Allain’s second enumeration of error contends the evidence was insufficient to convict him of the habitual violator offense because the police could not start the car in which Allain was sitting. Although it is true a police officer testified he could not start the car after Allain’s arrest, it is also true another officer testified that after he heard a car’s motor running at high speed, he approached the car, found the transmission in drive, saw Allain slumped over behind the steering wheel with one foot on the accelerator and the other foot on the brake pedal; the officer put the car in park, and turned off the car’s motor. With this testimony, the fact that the car would not start at some later time is non-persuasive at the appellate level where the issue is evidence sufficiency rather than weight. Accordingly, this and evidence showing a habitual violator notice revoking Allain’s driver’s license was sent by registered mail to the address Allain provided and was signed for in his name at that address, and Allain’s admission he surrendered his driver’s license, and admitted he knew he was not supposed to be driving was sufficient to support the conviction. OCGA § 40-5-58; Johnson v. State, 194 Ga. App. 501, 502 (391 SE2d 132).

Decided February 5, 1992.

Jason R. Hasty, for appellant.

Garry T. Moss, District Attorney, Cecelia V. Moutoux, Assistant District Attorney, for appellee.

3. The final enumeration of error alleges the trial court erred by denying Allain’s motion to reopen the evidence. The transcript shows after the jury had begun deliberations Allain sought to reopen the evidence to present evidence that, in court, the prosecutor served him with a habitual violator notice and to call the witness to impeach the police officer’s testimony.

The trial court has very broad discretion when deciding whether to reopen and allow additional evidence at any stage of trial, including after the jury has begun deliberations, and that discretion will not be controlled except where there appears to have been an abuse of discretion. Chancellor v. State, 165 Ga. App. 365, 373 (301 SE2d 294). Considering the evidence presented in this case and the evidence which Allain sought to introduce, we cannot say the trial court abused its discretion. Therefore, this enumeration of error is also without merit.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1856.
    LEE v. THE STATE.
    (415 SE2d 290)
   Sognier, Chief Judge.

George Michael Lee was indicted for the offense of murder and convicted of voluntary manslaughter. He appeals.

1. Appellant contends the evidence adduced at trial did not support his conviction of voluntary manslaughter but rather required the jury to decide either that appellant murdered the victim or that he killed the victim while acting in self-defense. Accordingly, appellant also contends that the trial court erred by charging the jury on the lesser included offense of voluntary manslaughter.

William Minton, a friend of appellant who was spending the night at appellant’s home, testified at trial that he was present on the evening of February 22, 1989 when appellant returned home in the company of the victim, Billy Pitts. After Pitts and appellant drank a beer, Minton heard Pitts begin to argue with appellant about money appellant allegedly owed him. Pitts pushed appellant around and threw him up against the fireplace, breaking some items on the mantel, then searched the house until he discovered appellant’s safe. Min-ton testified that the assault on appellant had ended by this time, and that appellant told Pitts he could try to get into the safe if that was what Pitts wanted. Minton stated that as Pitts tried to open the safe with a small screwdriver, appellant walked into another room, returned to the hallway next to the room where Pitts was present, and shot Pitts once with a weapon identified by expert testimony as a .22 rifle. Minton testified that Pitts then said, “I’m sorry. Just let me out,” and Minton pleaded with appellant to think about what he was doing. Appellant responded by saying, “[n]o. I’m going to kill the son of a bitch,” and then fired repeatedly at Pitts as the victim was trying to get away. Minton testified that appellant then ordered him not to telephone the police, but after walking around the room for a few minutes “to pull himself together” appellant called the police. The police officer who first arrived on the scene testified that appellant admitted he had shot Pitts. The medical examiner testified that the wounds he examined during the autopsy indicated that Pitts had been shot seven times.

Appellant testified that he met Pitts at a bar that evening and invited him home. He stated he did not owe Pitts any money and told him about the safe in order to avoid being severely hurt in the assault. He denied leaving the room where Pitts was trying to force open the safe, but instead stated he reached into his bedroom for the already-loaded rifle and put it beside him. He recounted that when Pitts realized the safe would not open, Pitts stood up, loudly announced he wanted his money and was going to kill appellant, and moved toward appellant, knocking over the only lamp in the room as he neared. Appellant testified that he picked up his rifle and fired into the darkness in Pitts’s direction, and that he quit firing when he was able to see that Pitts had moved away. Appellant maintained that the only words he heard Pitts utter were the money demand and death threat, and he denied hearing Minton plead with him to stop firing and ordering Minton not to telephone the police. He also denied saying out loud that he was going to kill Pitts, but testified on cross-examination that “I was probably thinking that.”

“The evidentiary circumstances necessary to show voluntary manslaughter, as opposed to circumstances showing the homicide was justified [because committed in self-defense], relate to a situation which arouses sudden passion in the person killing so that, rather than defending himself, he wilfully kills the attacker, albeit without malice aforethought, when it was not necessary for him to do so in order to protect himself. The distinguishing characteristic between voluntary manslaughter and justifiable homicide in such cases is whether the accused was so influenced and excited that he reacted passionately or whether the defendant acted simply to defend himself.” Williams v. State, 232 Ga. 203, 204 (206 SE2d 37) (1974), overruled on other grounds, Jackson v. State, 239 Ga. 40 (235 SE2d 477) (1977). Although appellant testified that the provocation for the shooting was self-defense to repel Pitts’s attack, the State adduced evidence from which the jury was authorized to find that Pitts’s attack had ceased and that appellant was no longer in fear for his own safety when he suddenly and repeatedly shot Pitts, but that appellant acted “as the result of a sudden, violent, and irresistible passion resulting from serious provocation,” OCGA § 16-5-2 (a), presented in the case sub judice in the form of Pitts’s earlier assault on appellant’s person. “[I]n order for an intentional killing to be reduced in severity from murder to voluntary manslaughter, the evidence must support a finding of provocation, passion and lack of cooling-off time. [Cit.]” Murff v. State, 251 Ga. 478, 479-480 (306 SE2d 267) (1983). The State presented evidence of all three elements, which distinguishes the case at bar from Williams, supra, cited by appellant, in which a charge on voluntary manslaughter was found to be inappropriate where the accused shot the victim 15 to 25 minutes after having concluded the argument between them with a handshake. The trial court did not err by charging the jury on voluntary manslaughter. Lindsey v. State, 196 Ga. App. 67 (3) (395 SE2d 328) (1990).

“The evidence here was in dispute as to whether appellant shot [Pitts] with malice aforethought (since he was charged with murder), out of passion, or out of justification in self-defense. The resolution of this question depended heavily on the credibility of the witnesses, including appellant. Decisions regarding credibility are exclusively for the jury. A rational trier of fact was authorized to find the elements of voluntary manslaughter beyond a reasonable doubt.” (Punctuation and citations omitted.) Watkins v. State, 191 Ga. App. 325-326 (1) (382 SE2d 107) (1989).

2. Appellant contends the trial court erred by allowing the prosecutor to cross-examine the State’s witness, Minton, as a hostile witness shortly after he took the stand. Although at the time the trial court declared Minton a hostile witness he had been unresponsive only as to one question, the remainder of his testimony reveals that even under cross-examination he was argumentative and unresponsive. In Shouse v. State, 231 Ga. 716, 719 (11) (203 SE2d 537) (1974), the appellant argued reversible error existed because the district attorney had posed leading questions to his witnesses throughout the trial. The Supreme Court found no merit in the contention, responding that “ ‘[a] judge is given latitude and discretion in permitting leading questions, and unless there has been abuse thereof, resulting in prejudice and injury, there is no reversible error. [Cits.]’ [Cit.]” Id. Similarly, we find no abuse of the trial court’s discretion in the case sub judice.

Decided January 22, 1992

Reconsideration denied February 7, 1992

Garland & Samuel, Donald F. Samuel, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carl P. Greenberg, Constance C. Russell, Assistant District Attorneys, for appellee.

3. Appellant contends the trial court erroneously failed to charge the jury regarding OCGA § 16-3-23. That statute provides that use of deadly force in defense of habitation is justified if the person “reasonably believes that the entry is made or attempted for the purpose of committing a felony therein.” Id. at (2). It is uncontroverted that appellant invited Pitts into his home, and even accepting appellant’s argument that Pitts accepted the invitation with the purpose of collecting money he thought appellant owed him, there is no evidence Pitts entered the house for the purpose of obtaining that money by committing a felony. Stephens v. State, 71 Ga. App. 417, 422-423 (2) (a) (31 SE2d 217) (1944). Therefore, the trial court did not err by not charging the jury on OCGA § 16-3-23.

Judgment affirmed.

M'cMurray, P. J., and Andrews, J., concur.


text:
    A91A1569.
    JACKSON v. THE STATE.
    (415 SE2d 695)
   Andrews, Judge.

Having been convicted of two counts of child molestation, one count each of simple sodomy and attempted sodomy, and one count of cruelty to children involving his stepson, Jackson appeals.

1. Defendant contends the admission of statements made by the stepson to a protective services worker was error because the statements were hearsay.

The first objection made was to “her giving testimony as to what [he] told her in general terms. I don’t think that’s appropriate.” After the court overruled the objection, stating that the statements made were admissible as an exception to the hearsay rule, counsel said: “I’d only ask that she tell the Jury exactly what she was told at the time of the interview, . . . , and nothing more.”

Decided February 7, 1992.

Jerry C. Gray, for appellant.

Timothy G. Madison, District Attorney, Jeffery G. Morrow, As sistant District Attorney, for appellee.

No hearsay objection was raised by defendant by this colloquy and her testimony complied with the request made. Therefore, nothing is presented for our review in this instance.

Defendant later made a motion for mistrial on the sole basis that the stepson was not under the age of 14 at the time the statements were made, as required by OCGA § 24-3-16. The State agreed that section was not applicable but relied on Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). The stepson, age 17 at time of trial, testified and the objected to statements were admissible under the Cuzzort rationale. Miller v. State, 260 Ga. 191, 193 (4) (391 SE2d 642) (1990); Postell v. State, 200 Ga. App. 208 (1) (407 SE2d 412) (1991).

2. The second enumeration alleges error in the trial court’s failure to hold a hearing pursuant to USCR 31.3 (B) with regard to uncharged instances of defendant’s improper conduct with his stepson which the State had properly noticed under USCR 31.1.

The first objection voiced during trial regarding other acts was that the initial uncharged event referred to by the stepson occurred in a different county from the charged offenses. That objection is not made here and will not be further addressed. Doughty v. State, 175 Ga. App. 317, 321 (5) (333 SE2d 402) (1985).

Defendant then went on to request a hearing during trial in January 1991, prior to the issuance of Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991) in November. Defendant’s objection is not that the incidents were not similar or otherwise admissible, see Hunter v. State, 202 Ga. App. 195 (413 SE2d 526) (1991), but goes only to the procedural issue. This argument fails because the defendant testified here and produced character witnesses, thereby putting his character in issue and triggering USCR 31.3 (D) which states that in such circumstances, “evidence of similar transactions or occurrences, as shall be admissible according to the rules of evidence, shall be admissible, the above provisions notwithstanding.” (Emphasis supplied.)

Finally, defendant argues the evidence was insufficient because defendant was hospitalized during May 1990, providing an alibi for this time period. On the only count which was specifically time limited to May 1990, the jury returned a not guilty verdict. There was sufficient evidence of acts outside this period to support all the other counts.

Judgment affirmed.

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