text:
    A92A0512.
    CURTIS v. ALLSTATE INSURANCE COMPANY.
    (416 SE2d 359)
   McMurray, Presiding Judge.

Barbara Curtis (plaintiff) brought an action against unknown motorist “John Doe” alleging she was injured in an automobile collision as a result of Doe’s negligence. Plaintiff served Allstate Insurance Company (“Allstate”) as the uninsured motorist carrier under OCGA § 33-7-11 (d). Allstate subsequently filed a motion for summary judgment.

Decided February 20, 1992.

Victor Alexander, Jr., Kenneth S. Nugent, for appellant.

Chambers, Mabry, McClelland & Brooks, David A. Komie, for appellee.

Plaintiff gave a deposition and testified that she was involved in an automobile collision on November 17, 1988. Kathy Bembry deposed in an affidavit that she collided into the rear of plaintiff’s vehicle while attempting to avoid a negligently driven “white pickup truck. ...” Robert Kimbrough deposed in an affidavit that he was involved in the November 17, 1988, collision and that he saw Kathy Bembry evade a negligently driven “white pickup truck . . .” and collide into plaintiff’s automobile. Plaintiff testified that she did not see the unidentified white pickup truck.

The trial court granted Allstate’s motion for summary judgment. This appeal followed. Held:

“[I]n order for the insured to recover under the [uninsured motorist] endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured. Such physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.” OCGA § 33-7-11 (b) (2).

It is undisputed that the unidentified “white pickup truck . . .” never made physical contact with any vehicle involved in the collision which gave rise to the case sub judice. It is also undisputed that plaintiff never saw an unidentified “white pickup truck . . .” contribute to the collision. Under these circumstances, plaintiff is not entitled to uninsured motorist coverage under OCGA § 33-7-11 (b) (2). Bell v. Coronet Ins. Co., 197 Ga. App. 211, 212 (1) (398 SE2d 242). The trial court did not err in entering summary judgment for Allstate.

Judgment affirmed.

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


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A91A1498.
    SNELL v. THE STATE.
    (416 SE2d 360)
   Beasley, Judge.

Snell appeals his convictions for the armed robbery, OCGA § 16-8-41 (a) and aggravated assault, OCGA § 16-5-21 (a) (1) & (d), of a 77-year-old man in the man’s home. Snell was charged with stabbing and attempting to strangle the victim and with taking from the victim $132 in cash and two small caliber pistols.

Snell’s appointed appellate counsel raises two challenges: The convictions should be reversed because Snell’s trial counsel provided ineffective assistance under the state standard of Pitts v. Glass, 231 Ga. 638, 639 (203 SE2d 515) (1974), as applied in Hicks v. State, 169 Ga. App. 542 (1) (314 SE2d 113) (1984), and Dansby v. State, 165 Ga. App. 41, 43 (2) (c) (299 SE2d 579) (1983); the convictions should be reversed because the trial court charged the jury on flight and its corresponding inference of guilt.

Subsequent to counsel’s filings, Snell also filed a pro se brief containing allegations of error under the mistaken belief that he has a right to simultaneous representation by counsel and self-representation. He does not have that right under our State Constitution. 1983 Ga. Const., Art. I, Sec. I, Par. XIV. Nor does he have that right under the Sixth Amendment. Cargill v. State, 255 Ga. 616, 622 (3) (340 SE2d 891) (1986), citing McKaskle v. Wiggins, 465 U. S. 168 (104 SC 944, 79 LE2d 122, 136) (1984). Independent errors raised pro se will not be considered. Cook v. State, 195 Ga. App. 69, 70 (2) (392 SE2d 556) (1990).

1. The proper disposition of the claim of ineffective assistance of counsel requires consideration of the procedural history of the case.

Snell was granted permission to act as his own counsel during the trial which commenced on December 12, 1989. An attorney was appointed to act as “co-counsel.” Snell participated in some cross-examination of witnesses and presented his own closing argument. During sentencing, Snell indicated that he wished to appeal the convictions.

Trial “co-counsel” filed a timely motion for new trial on the general grounds on December 20, 1989. Approximately three weeks later, Snell, himself, filed an application for sentence review and, more than a month after that, a “Brief in Support of Amended Motion for New Trial.” The following month, the trial attorney filed an amendment to the motion for new trial citing errors other than the general grounds. The amended motion for new trial was denied on March 23, 1990. The attorney filed an untimely notice of appeal from the convictions on April 30. On May 1, he filed a motion for extension of time to file a notice of appeal pursuant to OCGA § 5-6-39. Finding the request for extension itself untimely, the trial court denied it.

Snell petitioned for a writ of habeas corpus alleging as grounds for relief, that trial counsél was ineffective because an appeal was not timely filed and because counsel showed prejudice throughout the case, and that Snell was tried without a jury of his peers because of an “all white jury.” The habeas corpus court granted an out-of-time appeal on May 8, 1991, after concluding that Snell’s lack of an appeal was not his fault. That court declined to further review the remaining claims of ineffective assistance of counsel or lack of a peer jury, citing Ponder v. State, 260 Ga. 840 (400 SE2d 922) (1991), and remanded the case to the trial court.

On May 16, the trial court granted this out-of-time appeal and appointed the present appellate counsel. The appeal was docketed on May 21, and appellate counsel filed a brief on behalf of appellant on July 11. In a letter dated August 26, appellate counsel informed this Court that he would “at the same time pursue [Snell’s] claim of ineffective assistance of counsel by means of a motion for new trial as outlined in [Ponder, supra].” The clerk of the trial court has certified that no such motion for new trial has been filed or ruled upon.

Ponder specifically addressed the question of when, in the context of an out-of-time appeal, a claim of ineffective assistance of counsel must be raised to preserve the issue for review. It held that “the grant of an out-of-time appeal constitutes permission to pursue appropriate post-conviction remedies, including a motion for new trial. ... [A] claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing.” Id. at 841 (1).

When an out-of-time appeal arises from a habeas corpus proceeding, as here, the petitioner is placed in “the same posture with the same rights as a defendant who is successful in seeking an out-of-time appeal from the trial court.” Id. at 842 (1). That is, following the court’s grant of an out-of-time appeal, the petitioner has 30 days to pursue post-conviction remedies, i.e., to put the issue of ineffectiveness of trial counsel before the trial court in a motion for new trial.

Appellate counsel having failed to follow the procedure required by Ponder, the issue of ineffectiveness of trial counsel is waived in this appeal.

2. The following instruction was given to the jury because of evidence that Snell escaped from the city jail following his arrest for the charges on trial.

“[T]he flight of a person accused of a crime, if proven, or the attempted flight of a person accused of a crime, if established by the evidence, may be considered by the jury in determining whether or not such accused is guilty of the alleged crime. If you find from the evidence in this case that there was flight on the part of the Defendant, you may consider whether or not you will draw any inference of guilt from that flight or similar acts, if any such has been proven. Flight is subject to explanation. You decide the weight to be given to such evidence, if any, and whether to draw any inference of a consciousness of guilt or not. It’s for you, the jury, to decide from the evidence whether or not there was any flight on the part of the Defendant in this case and, if so, whether such was due to a sense of guilt or for some other reason, and if for other reasons then no inference hurtful to the Defendant should be drawn.”

Decided February 21, 1992.

Wright & Hyman, G. Russell Wright, David E. Morgan III, for appellant.

John C. Pridgen, District Attorney, James E. Turk, Assistant District Attorney, for appellee.

Under the facts of this case the substance of such a charge in itself is not erroneous, but the propriety of singling out the circumstance of flight for instruction to the jury has been a matter of concern to members of the Supreme Court. See Cameron v. State, 256 Ga. 225, 227 (345 SE2d 575) (1986) (concurrence by Bell, J., with Weltner and Hunt, JJ., concurring), and Griffin v. State, 257 Ga. 148, 150 (7) (356 SE2d 209) (1987), citing the concurrence in Cameron. In Renner v. State, 260 Ga. 515, 518 (3) (b) (397 SE2d 683) (1990), the Supreme Court adopted the rule enunciated in Justice Bell’s concurrence in Cameron, that is, “while the state may offer evidence of and argue flight, it shall be error for a trial court in a criminal case to charge the jury on flight.” Id. at 518 (3) (b). The Court expressly made such rule applicable only to cases tried after January 10, 1991. Id. at 518, footnote 2.

Renner is inapplicable to the present case, it having been tried on December 12, 1989. The giving of the flight instruction in this case does not constitute reversible error, which is required in order to reverse a judgment of conviction. See Grissett v. State, 199 Ga. App. 547 (1) (405 SE2d 542) (1991); Johnson v. State, 199 Ga. App. 144, 145 (2) (404 SE2d 455) (1991) (physical precedent only as to Division 1).

Judgments affirmed.

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


author: Judge Arnold Shulman.

text:
    A91A1858.
    REMINE v. THE STATE.
    (416 SE2d 326)
   Judge Arnold Shulman.

The appellant was tried before a jury and found guilty on an indictment charging that he had committed the offense of cruelty to children by maliciously causing his then seven-year-old son “cruel and excessive physical and mental pain.” See OCGA § 16-5-70 (b). He •brings this appeal from the denial of his motion for new trial.

The evidence established without dispute that after causing the child to be awakened and brought before him on the night in question, the appellant beat him with a metal studded belt for a period of 15 to 20 minutes as punishment for perceived misbehavior which had occurred during the day, inflicting severe bruises on his lower back, buttocks and legs. The jury was presented with photographs of the bruises, and the police officer who took these photographs testified that in his 15 years on the police force he had never before seen such severe bruises caused by a whipping. A protective services worker from the Department of Family & Children Services who had observed the child some two weeks later at a hospital emergency room offered similar testimony concerning the severity of the bruises. She further testified that when she saw the child in the emergency room he was “rolling around on the [examining] table” in a “trance-type” state, screaming, “Daddy, stop; daddy please don’t, don’t hit me; daddy please don’t hit me again.”

1. We hold that a rational trier of fact could reasonably have concluded beyond a reasonable doubt from the evidence presented at trial that the appellant had maliciously caused the child cruel or excessive physical or mental pain in violation of OCGA § 16-5-70. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellant contends that the trial court erred in allowing the child’s mental health counselor, a clinical social worker with a masters degree in psychiatric social work, to testify, over the appellant’s objection and motion for mistrial, that in his opinion the victim had suffered “excessive physical pain and emotional abuse.” We agree that this testimony should not have been admitted.

“[A]n expert may not testify as to his opinion as to the existence vel non of a fact . . . unless the inference to be drawn from facts in evidence is beyond the ken of the jurors — that is, unless the jurors, for want of specialized knowledge, skill, or experience, are incapable of drawing — from facts in evidence — such an inference for themselves. [Cit.]” Allison v. State, 256 Ga. 851, 853 (5) (353 SE2d 805) (1987). “[W]here (a) the path from evidence to conclusion is not ‘shrouded in the mystery of professional skill or knowledge,’ and (b) the conclusion determines the ultimate issues of fact in a case, the jury must make the journey from evidence to conclusion without the aid of expert testimony. [Cits.]” Williams v. State, 254 Ga. 508 (2), 510 (330 SE2d 353) (1985). Accord Nichols v. State, 177 Ga. App. 689, 692 (340 SE2d 654) (1986). Thus, while it is permissible, for example, to introduce expert opinion testimony to the effect that the alleged victim in a child molestation case has exhibited behavioral characteristics consistent with those of a sexually abused child, see Holsey v. State, 199 Ga. App. 782, 784 (7) (406 SE2d 127) (1991), it is not permissible to present expert opinion testimony to the effect that the child has in fact been abused. See Allison v. State, supra; Sims v. State, 260 Ga. 782 (4) (399 SE2d 924) (1991).

The jury in the present case was presented with extensive evidence as to the severity of the beating and the extent of the child’s resulting injuries. We hold that it was not beyond the ken of the average juror to determine from this evidence whether the appellant had caused the child excessive physical or mental pain. Accord Cohn v. State, 186 Ga. App. 816 (3) (368 SE2d 572) (1988). Compare Boyce v. State, 198 Ga. App. 371 (2) (401 SE2d 578) (1991); In the Interest of S. T., 201 Ga. App. 37, 38 (1) (410 SE2d 312) (1991). However, we further hold that in the context of the evidence as a whole, it is highly probable that the testimony in question did not contribute to the verdict. See generally Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976). The appellant presented no evidence whatever tending to controvert the state’s evidence concerning either the severity of the beating or its effect on the child’s mental and emotional health but instead relied solely on his counsel’s argument that he had not acted maliciously but had simply administered “what he thought was correct discipline.” “Having carefully examined the trial transcript, we are satisfied that the accused has not been prejudiced by the introduction into evidence of the . . . expert testimony discussed above. . . .” Palmer v. State, 186 Ga. App. 892, 901 (369 SE2d 38) (1988).

3. The appellant contends that the trial court erred in denying his request for an in camera inspection of the district attorney’s investigator’s file regarding the case. The trial court denied the request on the ground that it was untimely in that it was not made until after the jury had been selected and the opening arguments delivered. We find no error. See generally Tribble v. State, 248 Ga. 274 (1) (280 SE2d 352) (1981).

4. In his fourth enumeration of error the appellant contends that the trial court “violated due process in commenting and charging on the evidence to the effect that there were similar transactions when, in fact, there were not, and the state failed to give any notice of similar transactions.” We find this enumeration of error somewhat confusing in that if no evidence of similar transactions was admitted, then the appellant is in no position to complain of the state’s failure to give notice of its intention to introduce such evidence; whereas, if such evidence was admitted, he is in no position to complain of the court’s action in charging the jury on the proper weight to be given such evidence. Because the appellant asserts unequivocally in his statement of facts that “the state did not put on evidence of similar transactions,” we shall treat this enumeration of error as being directed to the court’s charge, which was, in pertinent part, as follows: “Evidence of the defendant’s conduct with reference to similar transactions about the same time is admitted solely for the jury to consider only as it might tend to illustrate the defendant’s state of mind on the subject involved if you think it does so illustrate it and for that purpose alone. You are not to consider it for any other purpose. The Court does not intimate or express to you any opinion whatsoever as to whether the defendant has had any other transactions at any time similar to the charge . . . contained in this special presentment. Whether the accused has or has not committed other similar offenses is a matter solely for your determination.”

Generally speaking, “an erroneous charge touching a theory not in issue under the evidence, unless prejudicial and harmful as revealed by the record, does not require or demand a reversal. [Cit.] ” Jones v. State, 171 Ga. App. 184, 187 (5) (319 SE2d 18) (1984); Hall v. State, 176 Ga. App. 498, 501 (3) (336 SE2d 604) (1985). Assuming arguendo that no evidence of similar transactions was admitted in this case, we hold that the above charge was harmless. See Jackson v. State, 193 Ga. App. 844 (2) (389 SE2d 521) (1989).

5. After the jurors had been selected but before they were sworn, the trial court excused two of them on grounds of hardship — one because he had arranged for a vacation which could not be rescheduled and the other because he ran a pharmacy and had no employee to take his place. However, three alternate jurors had been selected, and the trial consequently proceeded with a full panel. Citing Neal v. State, 160 Ga. App. 834 (2) (288 SE2d 241) (1982), for the proposition that, once chosen, a juror may be discharged only for legal cause, the appellant contends that the court’s action in excusing these two jurors was not authorized.

This court has previously held that OCGA § 15-12-172 “implicitly authorizes the trial court to exercise its discretion with regard to excusing a juror from the panel.” Baptiste v. State, 190 Ga. App. 451, 453 (2) (379 SE2d 165) (1989). Pretermitting whether that discretion was abused in the present case, it is evident that the appellant was not harmed by the court’s action, since the case proceeded to trial before, a full panel of qualified jurors of his own choosing. Accordingly, this enumeration of error also establishes no ground for reversal.

Decided February 12, 1992

Reconsideration denied February 24, 1992

Alden W. Snead, J. M. Raffauf, for appellant.

David McDade, District Attorney, Lois W. Gerstenberger, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


text:
    A91A1878.
    PLANTE v. THE STATE.
    (416 SE2d 316)
   Judge Arnold Shulman.

The appellant was tried on a three-count indictment charging him with child molestation, incest, and sodomy. The alleged victim in each instance was his then 13-year-old stepdaughter. The jury found the appellant guilty of child molestation but acquitted him of the other two charges. He brings this appeal from the denial of his motion for new trial.

The conduct on which the child molestation count was based was alleged to have occurred “between the 1st day of November, 1987, and the 14th day of October, 1988, the exact dates unknown. . . .” The child testified that the appellant began having sexual relations with her in the fall of 1987 and that she thereafter reported to a church pastor and his wife that the appellant was touching and fondling her. This evidently led to her being placed in the custody of the Department of Family & Children Services. After living in a series of foster homes, she was admitted to Northwest Regional Hospital in November of 1988. She stayed there until August 15, 1989, when she was admitted to Hillside Psychiatric Hospital, in whose care she remained at the time of trial.

Prior to trial, the appellant caused a subpoena duces tecum to be issued to the Department of Family & Children Services (DFACS), calling upon it to produce at trial all records in its possession pertaining to the child. DFACS moved to quash the subpoena, and after conducting an in camera inspection of the requested materials, the trial court made some four pages of that agency’s records available to the appellant. The appellant caused a similar subpoena duces tecum to be issued to Hillside Psychiatric Hospital, which also filed a motion to quash. The court summarily granted that motion in its entirety, without conducting an in camera inspection.

1. The appellant contends that the trial court erred in quashing the Hillside Psychiatric Hospital subpoena without first conducting an in camera inspection of the requested records to determine whether they contained any information favorable to his defense. While the record before us does not contain an actual copy of the subpoena, it is apparent from the hospital’s motion to quash that it called upon the custodian of that institution’s medical records to produce at trial “a certified copy of any and all records, documents and papers or any other tangible things concerning the case and any and all treatment of [the victim]. . . .” It is thus clear that the purpose of the subpoena was not to obtain any specific item of evidence for introduction at trial but rather to enable the appellant to search through the hospital’s records in' hopes of obtaining information which might possibly impeach the child’s credibility. In other words, the appellant sought to use the subpoena as an instrument of discovery. There is, however, no generalized right of discovery in criminal cases. See Anderson v. State, 258 Ga. 70 (4) (365 SE2d 421) (1988); Boatright v. State, 192 Ga. App. 112, 113 (385 SE2d 298) (1989).

“OCGA § 24-10-22 (b) (1) gives the trial court discretion upon timely motion to quash or modify ... a subpoena [duces tecum] if it is ‘unreasonable and oppressive.’ This standard is tested by the peculiar facts arising from the subpoena itself and other proper sources. [Cits.]’ [Git.] ‘[N]o court should impose upon the opposite party the onerous task of producing great quantities of records which have no relevancy. The notice should be specific enough in its demands to relate the documents sought to the questions at issue.’ [Cit.]” Washburn v. Sardi’s Restaurants, 191 Ga. App. 307, 310 (4) (381 SE2d 750) (1989). Cf. Garcia v. Allen, 202 Ga. App. 529 (414 SE2d 742) (1992). The need for specificity is particularly acute where, as here, the records sought by the subpoena necessarily would contain confidential and privileged communications. See generally OCGA § 24-9-21 (5). Because the Hillside subpoena sought such information yet was totally lacking in specificity, we hold that the trial court did not abuse its discretion in quashing it summarily, without undertaking an in camera review of the requested records.

2. The appellant contends that the trial court erred in failing to include in the record on appeal the DFACS records which it had reviewed in camera but had not made available to him, arguing that without these records, “this court has no way of determining whether the defendant was provided all exculpatory and material information as well as information which would reflect upon the credibility of the prosecutrix.” Again, we find no error. Like the Hillside subpoena, the DFACS subpoena did not seek any specific item of evidence for introduction at trial but represented a transparent attempt at discovery. Assuming, for the purpose of argument, the DFACS was acting in a law enforcement capacity with respect to the present case and further assuming that the state was therefore obligated under Brady v. Mary land, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), to disclose to the appellant all information contained in that agency’s files which was materially exculpatory to him, we must conclude, in the absence of a contrary showing, that the trial court made all such information available to him following its in camera review. Accord Pope v. State, 197 Ga. App. 832, 833 (3) (399 SE2d 552) (1990). There is no requirement that the materials not disclosed to the defendant following such an in camera inspection be included in the record on appeal. See Barnes v. State, 157 Ga. App. 582, 589 (277 SE2d 916) (1981); Bartlett v. State, 196 Ga. App. 174 (1) (396 SE2d 31) (1990).

Decided January 31, 1992

Reconsideration denied February 24, 1992.

Mundy & Gammage, John M. Strain, for appellant.

William A. Foster III, District Attorney, George C. Turner, Jr., Assistant District Attorney, for appellee.

3. The appellant’s third enumeration of error is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2), due to the absence of any supporting argument or citation of authority. See Moss v. State, 196 Ga. App. 81 (5) (395 SE2d 363) (1990).

4. The trial court did not err in allowing an older stepdaugher of the appellant to testify concerning certain sexual conduct which he had engaged in with her while she was living in his home. This testimony was properly admitted as similar transaction evidence. Accord Cox v. State, 173 Ga. App. 422 (1) (326 SE2d 796) (1985).

Judgment affirmed.


author: Birdsong, Presiding Judge.

text:
    A91A2161.
    CANAL INSURANCE COMPANY v. WILKES SUPPLY COMPANY, INC.
    (416 SE2d 105)
   Birdsong, Presiding Judge.

Canal Insurance Company appeals a judgment in favor of Wilkes Supply Company, Inc., in an action to collect on a Canal policy for the theft of five vans. The judgment incorporates a jury verdict awarding Wilkes compensatory damages, a statutory penalty and attorney fees. Canal alleges the trial court erred by denying its motion for summary judgment and its motions for a directed verdict. The thrust of Canal’s argument is that Wilkes was not entitled to recover under the theft coverage of the policy because the vans were not stolen from Wilkes’ possession, and that recovery of penalties and attorney fees was not authorized. Held:

1. Canal’s enumeration alleging error in the denial of its motion for summary judgment is moot because of the subsequent entry of a verdict and judgment based on evidence introduced during the trial. Seabolt v. Cincinnati Ins. Co., 199 Ga. App. 715, 716 (405 SE2d 757); Hardaway Constructors v. Browning, 176 Ga. App. 530 (336 SE2d 579).

2. Canal alleges the trial court erred by denying its motion for a directed verdict because Wilkes did not prove that there was a theft or that Wilkes ever held the vans; and contends further that because of the close issue on liability, bad faith penalties were not authorized as a matter of law.

When determining whether a trial court erred by denying a motion for a directed verdict, this court reviews and resolves the evidence and any doubts or ambiguities in favor of the verdict. A directed verdict is not authorized unless there is no conflict in the evidence on any material issue and the evidence introduced, with all reasonable deductions demands a certain verdict. OCGA § 9-11-50 (a); Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268).

Viewed in this manner, the evidence shows Wilkes was in the business of buying automobiles from other dealers and at auctions for resale. At an auction in Florida, Wilkes arranged to buy five vans from Lombardy, a dealer with whom he satisfactorily had done business with two weeks earlier. Lombardy wanted to sell certain vans he had in Ohio, and Wilkes agreed to buy the vans and was given what was purported to be “spec sheets” and Ohio title certificates for the vans. They agreed Wilkes would return to Georgia and wire the purchase price to Lombardy’s bank in Florida, and Lombardy would ship the vans from Ohio to Wilkes. After Wilkes returned to Georgia, he electronically transferred the funds as he agreed, but Wilkes never received the vans and the evidence does not disclose what happened to them.

Canal contends that this evidence shows Wilkes is not entitled to recover under the policy because Wilkes did not prove that it ever held or had possession of the vans or that the vans were stolen. Wilkes contends, however, that the evidence shows he owned or possessed the vans because he had the Ohio title certificates and he had these titles converted to Georgia titles.

The insurance policy states that Canal will pay for loss to covered automobiles caused by theft, and defines a “covered automobile” as one held by Wilkes for sale. The questions presented are whether the vans were covered vehicles and whether the loss was caused by theft.

Pretermitting whether Wilkes possessed or held the vans is whether Wilkes proved a loss of the vans within the theft coverage. To be compensable the loss must have been covered.

Insurance contracts are governed by the rules of construction applicable to other contracts (United States Fire Ins. Co. v. Capital Ford &c., 257 Ga. 77, 78-79 (355 SE2d 428)), and words in the policy must be given their usual and common signification and customary meaning. OCGA § 13-2-2 (2); Griffin v. Adams, 175 Ga. App. 715, 716 (334 SE2d 42). Further, this policy is not ambiguous. Ambiguity in a policy is “ ‘duplicity, indistinctness, an uncertainty of meaning or expression.’ ” Tarbutton v. Duggan, 45 Ga. App. 31 (5) (163 SE 298).

The applicable portion of the policy states: “The company will pay for loss to covered automobiles under . . . COVERAGE Q. FIRE, THEFT AND SUPPLEMENTAL — caused by . . . (d) theft or larceny. . . .” Additionally, the policy has a page entitled “IMPORTANT NOTICE TO THE INSURED” that includes the following notice: “THEFT does not include larceny after trust or trick or device or false pretense. If you voluntarily part with a car for any reason, it is not theft.”

In common usage, “theft” includes the concept of wrongful taking or stealing. See, e.g., “1 (a): the act of stealing . . . the felonious taking and removing of personal property with intent to deprive the rightful owner of it (b): an instance of such an act (2): the taking of proper y unlawfully” (Webster’s Third Inti. Dictionary), or “the act of stealing; the wrongful taking and carrying away of the personal goods or property of another; larceny.” Webster’s Encyclopedia Unabridged Dictionary. In particular, theft or larceny includes no concept of mysterious disappearance or broken promise or false pretense. Underscoring this delineation is the fact that the policy had a specific coverage for false pretenses, which Wilkes intentionally rejected, and contained the notice to policyholder quoted above. Further, vehicle theft coverage provides protection for criminal taking of the vehicles with larcenous intent. Cincinnati Ins. Co. v. Tire Master of Thomaston, 183 Ga. App. 64, 65 (357 SE2d 812); Executive Auto Leasing v. Guaranty Nat. Ins. Co., 170 Ga. App. 860 (318 SE2d 733).

The evidence presented did not establish that the vans were stolen, i.e., wrongfully taken from Wilkes’ possession. The only competent evidence presented merely proved that after Wilkes wired the money, the vans never arrived. Although Wilkes sought to rely on statements from Lombardy’s truck driver to Wilkes that the trucks were shipped, these statements were properly excluded as hearsay, which in any event is not competent evidence. Higgins v. Trentham, 186 Ga. 264 (197 SE 862). Thus, the record is silent on what may have happened to the vans as neither Lombardy, the truck driver, nor any person who claimed to know personally what happened to the vans testified. In the absence of such proof, a claim under the theft coverage must fail.

Accordingly, the trial court erred by denying Canal’s motion for a directed verdict on its liability to Wilkes under the policy.

Decided February 11, 1992

Reconsideration denied February 24, 1992

Crim & Bassler, Harry W. Bassler, for appellant.

Edward W. Clary, for appellee.

3. In view of Division 2, Wilkes was not entitled to bad faith penalties and attorney fees.

Judgment reversed with direction for the trial court to enter judgment granting appellant’s motion for a directed verdict.

Pope and Cooper, JJ., concur.


text:
    A91A2241.
    RED ROOF INN et al. v. LYNN.
    (416 SE2d 307)
   Judge Arnold Shulman.

The claimant in this workers’ compensation case was awarded disability benefits for a back injury which she sustained when she fell while putting up a shower curtain during the course of her employment as a motel housekeeper. The award was affirmed by the superior court, and we granted the employer/insurer’s application for an appeal of that ruling in order to examine their contention that the administrative law judge improperly excluded a medical deposition from evidence.

The accident occurred on June 21, 1989. After paying disability benefits to the appellee for approximately four months, the appellants submitted a WC-2 form to the board on November 3, 1989, advising of its intention to suspend payment of such benefits on the ground that the appellee was “able to return to work without restrictions. . . .” At the appellee’s request, a hearing was held to determine whether she had in fact undergone such a change in condition, and at that time the appellants raised the so-called “Rycroft defense,” asserting that the appellee was barred from any recovery because of certain false representations she had made on her employment application. See Georgia Elec. Co. v. Rycroft, 259 Ga. 155 (378 SE2d 111) (1989).

At the conclusion of the hearing, the ALJ announced that the record would be left open for 30 days to allow the appellants to submit the depositions of Dr. I. A. Kahn, an orthopedic surgeon who had treated the appellee from July 28 through September 27, 1989, and Dr. Alvaro Lievano, who had begun treating her on November 1,1989. The appellants’ counsel promptly took Dr. Kahn’s deposition but advised the appellee’s counsel at that time that he did not intend to depose Dr. Lievano. The appellee’s counsel responded by moving to exclude the deposition of Dr. Kahn. The ALJ granted this motion, stating: “[T]he record was left open primarily to accommodate [counsel for the appellants] in taking Dr. Lievano’s deposition which he indicated would be done. The record was not left open for [him] to decide post-hearing which deposition he would take and which he would not.”

Based on Dr. Lievano’s medical report, which was introduced as evidence at the hearing, the ALJ went on to conclude that the appellee was entitled to continued benefits for total disability. Although Dr. Kahn’s office notes, which, along with his medical report, were also introduced as evidence, reflected that he had “asked [the appellee] to return to her regular duty,” the ALJ found these notes to be “equivocal” about her readiness to do so. The ALJ rejected the appellants’ Rycroft defense for the stated reason that there was no proof of “a causal connection between the false representation and the injury,” and also rejected their contention that Dr. Lievano’s treatment of the appellee was unauthorized, stating: “From the evidence I find employee was sent to Primedical for initial attention [,] with that facility referring her on to Dr. I. A. Kahn. Dr. Kahn referred her back to Primedical and, after her continuing complaints there, Primedical referred [her] to Dr. Albert Lievano for treatment. Thus, I conclude employee is within the chain of authorized treating physicians.”

OCGA § 34-9-102 (e) (2) specifies that a party tendering a medical report as evidence in a workers’ compensation case “may, within the time allowed by the administrative law judge, also introduce the testimony of the person who has signed the medical report, for the purpose of supplementing the report.” As previously indicated, the ALJ left the record in this case open for a period of 30 days following the hearing for the stated purpose of allowing the appellants to depose both Dr. Kahn and Dr. Lievano. He did not indicate at that time that their right to submit either of these depositions would be contingent on their submission of the other; and we are, in any event, aware of no authority pursuant to which a party to an adversarial proceeding may be required to introduce evidence against his will. Accordingly, there being no suggestion that the appellants’ conduct interfered in any way with the appellee’s ability to present her case, we hold that the administrative law judge erred in excluding Dr. Kahn’s deposition. Accord Brown Transport Corp. v. Truett, 174 Ga. App. 189 (1) (329 SE2d 521) (1985).

In his deposition, which was made a part of the record though not considered as evidence, Dr. Kahn testified unequivocally that when he last saw the appellee on September 27, 1989, he was of the opinion that “she had progressed enough that she . . . needed to increase her activity and return to her regular work.” He also denied having referred her “back to Primedical doctors again.” As consideration of this testimony might have resulted in different findings by the board on these issues, it follows that the award must be vacated and the case remanded for reconsideration in light of Dr. Kahn’s deposition. However, Dr. Kahn offered no testimony which would support a finding that the appellee’s present injury was attributable to or aggravated by the prior back injury for which she had received workers’ compensation during the early 1980s. (Although he did testify that “if somebody has had recurrent back pain in the past, they are at an increased risk of having the same type of injury and reaggravation in the future,” he was clearly unaware of the specifics of the appellee’s prior injury, and we have been cited to no evidence that it was in the same location as her present injury. Compare Georgia Elec. Co. v. Rycroft, supra.) Accordingly, the decision of the superior court is affirmed insofar as it upholds the board’s rejection of the appellants’ Rycroft defense.

Decided January 27, 1992

Reconsideration denied February 24, 1992.

Cone & Shivers, Benjamin J. Johnson, for appellants.

Bennie H. Black, for appellee.

Judgment affirmed in part and reversed in part.

Carley, P. J., and Beasley, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A0057.
    SUNTRUST MORTGAGE, INC. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (416 SE2d 322)
   McMurray, Presiding Judge.

Georgia Farm Bureau Mutual Insurance Company (“Georgia Farm Bureau”) issued a homeowner’s insurance policy to William H. Brundage and Roberta L. Brundage covering a dwelling in Valdosta, Georgia. Suntrust Mortgage, Inc. (“Suntrust”) was the mortgagee-insured.

The policy provided: “Suit Against Us. No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.” It also provided: “Mortgage Clause. The word ‘mortgagee’ includes trustee. If a mortgagee is named in this policy, any loss payable . . . will be paid to the mortgagee and you, as interests appear. ... If we deny your claim, that denial will not apply to a valid claim of the mortgagee, if the mortgagee: . . . c. submits a signed, sworn statement of loss within 60 days after receiving notice from us of your failure to do so. Policy conditions relating to Appraisal, Suit Against Us and Loss Payment apply to the mortgagee. ...”

The dwelling was burned on February 16, 1990, and again on February 19, 1990. The first fire partially destroyed the dwelling; the second fire substantially destroyed what was left. Arson was alleged to be the cause of each fire.

On March 19, 1990, Georgia Farm Bureau notified Suntrust that the dwelling had been destroyed. Thereafter, on May 2, 1990, Georgia Farm Bureau wrote to Suntrust and requested that Suntrust furnish a proof of loss.

Georgia Farm Bureau received a proof of loss from Suntrust on June 22, 1990. Two months later, on August 22, 1990, Georgia Farm Bureau made an offer of settlement to Suntrust. The offer took the form of a letter written and sent by Georgia Farm Bureau’s counsel. In the letter, Suntrust was asked to respond “immediately” to Georgia Farm Bureau’s offer.

In early October 1990, Suntrust asked for and received a copy of the letter offering settlement. Subsequently, on February 14, 1991, Suntrust submitted a counterproposal to Georgia Farm Bureau’s counsel. The counterproposal was received by Georgia Farm Bureau’s counsel on February 16, 1991, a Saturday.

By letter dated February 20, 1991, Georgia Farm Bureau’s counsel advised Suntrust that the one-year limitation provision of the insurance policy had expired. He added that he would find out what Georgia Farm Bureau intended to do with regard to Suntrust’s counterproposal.

On February 27,1991, Suntrust sent a letter to Georgia Farm Bureau’s counsel seeking a settlement along the lines set forth in Georgia Farm Bureau’s original proposal. Therein, Suntrust “apologize[d] for the delay,” explaining that “there have been matters that had to be decided by the Veterans’ Administration and we had to wait for their decision.”

Via letter dated March 5, 1991, Georgia Farm Bureau’s counsel informed Suntrust that Georgia Farm Bureau stood by its one-year limitation provision and denied any liability to Suntrust. In short order, Suntrust brought suit against Georgia Farm Bureau.

Following discovery, Georgia Farm Bureau moved for summary judgment. The trial court granted Georgia Farm Bureau’s motion and Suntrust appeals. Held:

The one-year limitation period in the policy “was the only provision regarding a limitation and controlled the time within which a suit could be brought subsequent to a fire loss. Such a provision has been held valid and binding. Darnell v. Firemen’s Fund Ins. Co., 115 Ga. App. 367 (154 SE2d 741) (1967); Sloan v. Continental Cas. Co., 131 Ga. App. 377 (205 SE2d 925) (1974); Herring v. Middle Ga. Mut. Ins. Co., 149 Ga. App. 585 (254 SE2d 904) (1979). Compliance with the policy provisions is a condition precedent to recovery. Beck v. Georgia Farm &c. Ins. Co., 146 Ga. App. 878 (247 SE2d 548) (1978).” Smith v. Allstate Ins. Co., 159 Ga. App. 743, 744 (285 SE2d 82). By the clear terms of the policy, the one-year limitation period applied equally to an insured and a mortgagee. It cannot be said, therefore, that the trial court erred in granting Georgia Farm Bureau’s motion for summary judgment.

Decatur Fed. Savings &c. Assn. v. York Ins. Co., 147 Ga. App. 797 (250 SE2d 524), cited by Suntrust, is inapposite. Under the terms of the policy in that case, the insurer could not insist upon the one-year limitation period unless the mortgagee was notified of the insured’s failure to furnish proof of loss. Inasmuch as the mortgagee was not so notified, the one-year limitation period could not be invoked by the insurer. In the case sub judice, on the other hand, Sun-trust was notified of the Brundages’ failure to provide a proof of loss and it filed a proof of loss long before the limitation period set forth in the policy expired.

Relying upon Nicholson v. Nationwide &c. Ins. Co., 517 FSupp. 1046 (N.D. Ga. 1981), Suntrust asserts the one-year limitation period should have been tolled until 60 days after Georgia Farm Bureau received the proof of loss because, under the terms of the policy, Georgia Farm Bureau had a minimum of 60 days after receipt of the proof of loss to pay the claim or deny coverage. This assertion is without merit. Simply put, Nicholson does not reflect Georgia law and we are not persuaded that it should be followed.

Finally, Suntrust argues that a question of fact exists as to whether Georgia Farm Bureau waived the one-year limitation set forth in the policy. We disagree.

We recognize that an insurer can be held to have waived a limitation period when its “investigations, negotiations, or assurances . . . up to and past the period of limitation . . . led the insured to believe the limitation would not apply.” Modern Carpet Indus. v. Factory Ins. Assn., 125 Ga. App. 150, 151 (186 SE2d 586). In the case sub judice, however, we find no evidence that the conduct of Georgia Farm Bureau lulled Suntrust into believing that the period of limitation would not apply. There is no evidence of continuing negotiations or of an “affirmative promise, statement or other act ... to lead [Suntrust] into believing that [Georgia Farm Bureau] intended to enlarge on the limitation period contained in the contract....” Johnson v. Ga. Farm &c. Ins. Co., 141 Ga. App. 859, 861 (234 SE2d 693). On the contrary, the evidence demonstrates that Suntrust failed to respond to Georgia Farm Bureau’s one and only settlement offer for reasons of its own until it was too late to bring suit. Compare Nee v. State Farm &c. Co., 142 Ga. App. 744 (236 SE2d 880), in which negotiations were continuous and State Farm Fire & Casualty did not deny liability until after suit was filed.

Decided February 10, 1992

Reconsideration denied February 24, 1992

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Linda S. Finley, Carol V. Clark, for appellant.

John T. Croley, Jr., for appellee.

Judgment affirmed.

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


author: Sognier, Chief Judge.

text:
    A91A1493.
    A91A1494.
    SANDERS v. RAMO. CABEZAS v. RAMO.
    (416 SE2d 333)
   Sognier, Chief Judge.

Joan Ramo, individually and as temporary administrator of the estate of her mother, Geneva Ramo, brought a wrongful death action against Doctors Steven Sanders and Rodrigo Cabezas alleging their malpractice caused the death of her mother. The affidavit of Dr. Laurence Dry was attached to her complaint. OCGA § 9-11-9.1 (a). The defendants answered and moved for summary judgment based on their own affidavits averring that their care and treatment of the decedent met or exceeded the standard of care exercised by the medical profession generally under similar circumstances; Sanders further averred that the death was caused by the decedent’s lung cancer. Ramo relied exclusively on Dr. Dry’s affidavit to rebut the defendants’ motions. The trial court denied the motions, and we granted Sanders’ application for interlocutory appeal in Case No. A91A1493.

1. Although no party raises the matter, we note that appellant Cabezas is before this court in Case No. A91A1494 in what is designated a “cross appeal” pursuant to OCGA § 5-6-38 to the interlocutory appeal of Sanders, Cabezas’ co-defendant. The Supreme Court has overruled case law interpreting the predecessor statute to OCGA § 5-6-38, Ga. Code Ann. § 6-803, e.g., Glennville Wood &c. Co. v. Riddlespur, 156 Ga. App. 578 (1) (276 SE2d 248) (1980), as requiring cross appeals to be filed by appellees against appellants, see McClure v. Gower, 259 Ga. 678, 681 (2), fn 3 (385 SE2d 271) (1989), and now interprets OCGA § 5-6-38 together with language in OCGA § 5-6-37 that “all parties to the proceedings in the lower court shall be parties on appeal” to mean that “all parties to all proceedings in the lower court are parties on appeal.” Centennial Ins. Co. v. Sandner, Inc., 259 Ga. 317 (380 SE2d 704) (1989). We conclude that Cabezas’ appeal is properly before us “[b]ased on the foregoing, and mindful of the legislative intent that the Appellate Practice Act is to be liberally construed in order to bring about a decision on the merits of every case appealed. [Cit.]” Marsden v. Southeastern Sash &c., 193 Ga. App. 597, 598 (1) (388 SE2d 730) (1989) (physical precedent) (two co-defendants who failed to appeal allowed to participate in third defendant’s timely filed appeal by sending letter to clerk of this court adopting brief and enumerations of third defendant).

2. Appellants contend the trial court erred by denying their motions for summary judgment because Dr. Dry’s affidavit failed to set forth the particulars in which their treatment of appellee’s decedent was negligent. See Loving v. Nash, 182 Ga. App. 253 (1) (355 SE2d 448) (1987). We note that while Dr. Dry’s affidavit had a lesser evidentiary standard to meet when used to fulfill the requirement of OCGA § 9-11-9.1 (a), see 0-1 Doctors Mem. Holding Co. v. Moore, 190 Ga. App. 286, 287-288 (1) (378 SE2d 708) (1989), it became subject to the stringent evidentiary standards required of expert affidavits made in response to motions for summary judgment when appellee also relied upon it as her expert testimony to create genuine issues of material fact so as to rebut appellants’ affidavits. We will review the affidavit accordingly.

Appellee’s decedent was a lung cancer patient who on June 29, 1987, underwent a surgical procedure to have a catheter inserted into her subclavian vein by appellant Sanders, a general surgeon, to facilitate the administration of chemotherapy. The procedure was not completed because Sanders had difficulty inserting the catheter into the vein. During her removal from the operating table, the patient began experiencing respiratory distress, which led to cardiac arrest, from which she was resuscitated. Appellant Cabezas arrived at this time and a needle was inserted into the patient’s pleural cavity to ascertain if she has sustained vascular damage. No blood or fluid was found. Cabezas, after viewing an x-ray of the patient’s chest, made a preliminary diagnosis that the patient had suffered a hemothorax (a collection of blood in the pleural cavity) and first performed a tube thoracotomy then a limited thoracotomy (a surgical incision of the wall of the chest) and determined she had not suffered a hemothorax. Immediately after Cabezas concluded his surgery on the patient, approximately three hours after the subclavian line insertion procedure had been terminated, a vascular surgeon undertook treatment of the patient, performed surgery, discovered vascular damage to the subclavian artery, and repaired the damage. Appellee’s decedent died on July 13, 1987.

In her complaint, appellee alleged that Sanders “injured [her decedent] by causing a large dissection of the subclavian artery”; that the decedent “suffered massive blood loss as a result”; that Cabezas, who thought there was a hemothorax but whose, surgery showed otherwise, “failed to take further action to prevent massive blood loss”; and that the decedent’s death was caused or substantially contributed to by the massive bleeding resulting from the dissection. In support of her complaint, she submitted Dr. Dry’s affidavit, in which he set forth his qualifications and averred that he was a licensed medical doctor in good standing in Tennessee and that his opinions were based primarily on his review of the decedent’s medical records. Dr. Dry then averred that it was his opinion, “based on reasonable medical certainty, that the departure from reasonable standards of surgical care and skill at the hands of [appellants] caused the untimely death of [appellee’s decedent.]” No statement in Dr. Dry’s affidavit indicated that he was familiar with the standard of care applicable or revealed what standard of care he was applying. He merely referred to “reasonable standards of medical care,” which may or may not be the minimum standard of acceptable professional conduct to which appellants were held.

In Georgia, “the standard to be used to establish professional medical negligence under OCGA § 51-1-27 is that standard of care which, under similar conditions and like circumstances, is ordinarily employed by the medical profession generally.” (Citations and punctuation omitted.) McDaniel v. Hendrix, 260 Ga. 857, 859 (1) (401 SE2d 260) (1991). Once the defendant in a malpractice suit has carried his burden on motion for summary judgment, the plaintiff must respond with an expert’s affidavit which “must state the particulars in which the treatment was negligent, including an articulation of the minimum standard of acceptable professional conduct, and how and in what way defendant deviated therefrom. [Cits.]” Hillhaven Rehabilitation &c. Center v. Patterson, 195 Ga. App. 70, 71 (1) (392 SE2d 557) (1990).

However, in Jackson v. Gershon, 251 Ga. 577, 579 (308 SE2d 164) (1983), the Supreme Court disapproved judging a respondent’s expert affidavit on the presence or absence therein of “magic words.” “Magic words alone, no matter how often repeated, do not make a fact. Rather, the facts in the record must be sufficient to meet the legal standard embodied in the magic words.” Id. “ ‘The failure of a medical expert to use “magic words” in accusing a colleague of negligence in a medical malpractice case will not deprive his opinion of all efficacy where it is clear that the witness is of the opinion that the colleague failed to exercise due care in treating the patient.’ ” Hively v. Davis, 181 Ga. App. 733, 734 (353 SE2d 622) (1987). Thus, we will examine the facts in the record as set forth above in light of Dr. Dry’s averrals to determine whether any genuine issues of material fact remain for jury consideration.

As to appellant Sanders, Dr. Dry averred specifically that Sanders “departed from reasonable surgical care in inserting [a catheter] so as to cause a large dissection of the subclavian artery. ... I recognize that injury to vasculature caused by the insertion of a [catheter] is a known complication of this procedure. However, from what I can glea[n] from the records the cause of the ‘large dissection of the subclavian artery’ in this particular case was substandard surgical skill. In addition, it is the duty of [Sanders] to follow the patient to determine at the earliest possible time that she had in fact been surgically injured by him. His failure to recognize timely the bleeding was substandard. Further, [Sanders’] choice of the left, rather than the right, subclavian vein would bear explanation.” As to appellant Cabezas, Dr. Dry averred it was his opinion that Cabezas “departed from reasonable surgical care [in] that given the insertion of the [catheter] and [the decedent’s] subsequent signs and symptomatology, it was predictable that this patient was suffering from an extrapleural hematoma. [Cabezas] failed to exercise ordinary surgical standard in his approach. [T]he approach employed by [Cabezas] was certainly not the approach of choice for the working diagnosis. [Cabezas’] failure to properly explore for the predictable causes of her problems was a substantial contributing cause of [the decedent’s] death.”

From a reading of Dr. Dry’s affidavit and the record, it is clear that Dr. Dry’s opinion was that because vascular damage is a known complication of the catheter insertion procedure and because of the symptoms the patient displayed, appellants should have recognized that appellee’s decedent had sustained vascular damage, should have taken immediate steps to repair that damage, and should have recognized that the blood lost because of the vascular damage would be accumulating outside the pleural cavity, not inside. It is clear that in Dr. Dry’s opinion, appellants’ failure to recognize that the patient was bleeding and to explore in the proper places for the predictable cause of the patient’s problem, rather than the effect of that problem, constituted behavior below the standard expected of surgeons.

“It cannot be said that [Dr. Dry’s affidavit] ‘merely . . . (presents) a conclusory opinion that the defendant [s were] negligent or failed to adhere to professional standards of conduct without stating the parameters of such conduct and the particulars of the defendant[s’] deviation therefrom. . . .’ [Cit.] Instead, . . . the [affidavit] set out what should have been done and compared that to what was done. [Cit.] This proof . . . must be viewed in favor of the party opposing the motion [for summary judgment.] [Cit.]” Dent v. Memorial Hosp. of Adel, 200 Ga. App. 499, 504 (408 SE2d 473) (1991). When so viewed, it is clear that “ ‘[h]ere there was expert testimony . . . which was not inconsistent with plaintiff’s contention that defendant^] failed to exercise the requisite professional care, skill and diligence.’ ” Jackson, supra at 580. Therefore, appellee’s expert’s affidavit was sufficient to create a genuine issue of fact as to appellants’ negligence. See Traylor v. Moyer, 199 Ga. App. 112-114 (1) (404 SE2d 320) (1991). Accordingly, we find no error in the trial court’s denial of appellants’ motions for summary judgment.

Decided February 13, 1992

Reconsideration denied February 25, 1992.

Love & Willingham, Daryll Love, Robert P. Monyak, for appellant.

Nickerson & Tuszynski, Thomas Henry Nickerson, for appellees.

Judgments affirmed.

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

       We note that while there are medical records attached to the affidavit, it does not appear that they were sworn or certified as required by OCGA § 9-11-56 (e). See Bush v. Legum, 176 Ga. App. 395, 396 (1) (336 SE2d 284) (1985). However, no objection was made by either appellant to this formal defect, and accordingly it was waived. See Parlato v. MARTA, 165 Ga. App. 758, 759 (1) (302 SE2d 613) (1983).


text:
    A91A1554.
    CHEEKS v. THE STATE.
    (416 SE2d 336)
   Sognier, Chief Judge.

Michael A. Cheeks and a co-defendant were convicted in a joint trial of trafficking in cocaine, and Cheeks appeals.

The evidence at trial showed that, acting upon information from an informant, the Albany-Dougherty County Drug Squad obtained and executed a search warrant for a convenience store where appellant was working. Both Officer Janice Gardner and Captain Chuck Faulk, who participated in the raid, testified that the store was locked and that it was being opened from inside for people seeking entrance. The officers pulled up to the store’s gas pumps in an unmarked van and discharged Gardner. The door of the store was unlocked to admit Gardner, who bought candy and a soft drink. Gardner identified appellant as the person who opened the door for her. As Gardner was leaving, the door was opened and, acting upon prearranged instructions, she turned while holding the door open and made conversation with others in the store, allowing the other officers, who had been waiting in the van, to enter the store. The officers confiscated a bag containing several pieces of what was later identified as rock cocaine weighing more than 31.3 grams from the person of Johnny Platt, appellant’s co-defendant. Platt and William Louis Williams, who was also present in the store, were arrested. Several other people in the store were allowed to leave, and appellant, who testified he was employed at the store, stayed behind while a thorough search of the premises was made. In that search, a matchbox containing what was later identified as one gram of rock cocaine was found in a small room behind the counter. Approximately $3,000 in cash and a substantial amount of jewelry were also found and confiscated. When the search was completed, appellant was arrested. Appellant, Williams, and Platt were charged with trafficking in cocaine.

After appellant was convicted of that charge and sentenced, the trial court granted the motions for a new trial made by appellant and his co-defendant, Platt, on the ground of insufficiency of the evidence. The trial court later modified that order by reaffirming the grant of a new trial but finding appellant and Platt guilty of possession of cocaine. A majority of this court has interpreted the order as modified as a finding that the evidence at trial was insufficient to support a conviction for trafficking in cocaine but sufficient to support a conviction for the lesser included offense of possession of cocaine, and has affirmed the conviction of appellant’s co-defendant. Platt v. State, 200 Ga. App. 784 (409 SE2d 878) (1991).

1. We find the evidence presented at trial sufficient to have authorized the jury to believe that appellant was involved in the cocaine transactions at the convenience store and to convict appellant of cocaine possession under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Marshall v. State, 197 Ga. App. 762, 764 (4) (399 SE2d 555) (1990).

2. We find no merit in appellant’s contention that the trial court erred by denying his motion for severance. The decision whether to grant or deny the motion was within the discretion of the trial court and will not be reversed unless shown to constitute a denial of due process. Mitchell v. State, 195 Ga. App. 255, 258 (2) (393 SE2d 274) (1990). In determining whether severance should be granted, the trial court must consider (1) whether a joint trial will create confusion of the evidence and law applicable to each defendant; (2) whether the danger exists that evidence admitted against one defendant will be considered against the other despite cautionary instructions; and (3) whether the defendants’ defenses are antagonistic. Id. “The burden is on the defendant requesting the severance to make a clear showing of prejudice. He must show more than a possibility that a separate trial would give him a better chance of acquittal.” (Punctuation and citations omitted.) Id.

In this case, appellant’s motion for severance was based on the fact that Platt objected to the admission at trial of testimony he had previously given at Williams’ probation revocation hearing exonerating Williams. At that hearing Platt had testified that Williams had not known that Platt had been selling cocaine at the store and that all the cocaine found on Platt’s person belonged to him. Appellant argued that as Platt had indicated that he would not testify at their joint trial, appellant would be unable to introduce Platt’s prior confession taking responsibility for all the cocaine found in the store. The record shows, however, that this testimony was, in fact, admitted into evidence at the joint trial by the prosecutor, and thus appellant’s concerns were satisfied. Appellant thus has made no showing of prejudice to him, and as appellant and Platt were arrested at the same time, based on the same evidence, and their defenses were not antagonistic, with both claiming the cocaine was not theirs and they did not sell it, the trial court did not abuse its discretion by denying appellant’s motion to sever. Mitchell, supra at 259 (2).

3. We find similarly without merit appellant’s contentions that the trial court erred by failing to hold an evidentiary hearing on his motion for a change of venue and by denying the motion for such a change.

(a) We note initially that we find no written motion on behalf of appellant in'the record, as required by OCGA § 17-7-150 (a). The record does, however, contain the transcript of a motions hearing several weeks before trial, in compliance with OCGA § 17-7-150, at which appellant had the opportunity to present evidence in support of his motion for a change of venue. The fact that he presented argument instead of evidence does not taint the procedure. Moreover, appellant’s assertion that 35 of the 42 qualified members of the jury panel had learned of his arrest through the news media is not supported by the record.

(b) To prevail on a motion for change of venue pursuant to OCGA § 17-7-150 (a), a defendant must show either that the setting of the trial was inherently prejudicial or that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible. Ponder v. State, 194 Ga. App. 446, 447 (3) (390 SE2d 869) (1990). A trial court’s finding that a defendant can receive a fair trial in the county in which the crime was committed must be upheld if not manifestly erroneous. Id. The transcript reveals that although appellant asked the jurors whether they had heard of arrests of drug dealers, he did not inquire whether they could render an impartial decision despite whatever knowledge they had gleaned from the media. Appellant has, therefore, failed to demonstrate the required prejudice, and thus the trial court did not err by denying the motion for a change of venue. See id.

4. Because appellant believed that Williams, known as “Big Willie,” was notorious and that any reference to “Big Willie” would prejudice him, he moved in limine to prohibit any reference by the prosecutor to “Big Willie.” The trial court ordered the prosecutor to refer to Williams by his proper name. We find utterly without merit appellant’s contention that the trial court erred by denying appellant’s motion for a mistrial after the prosecutor referred to Williams as Willie Williams, as the prosecutor believed that to be Williams’ proper name. Indeed, no evidence was introduced to show Williams’ correct proper name.

5. We do not agree with appellant that permitting witnesses to testify as to the reputation of the convenience store impermissibly placed appellant’s character in issue. See Frazier v. State, 195 Ga. App. 599 (2) (394 SE2d 396) (1990).

6. Appellant maintains the trial court erred by allowing the State to show to the jury a videotape of the crime scene made by Investigator Tommy Simpson approximately eight months after the arrests. The videotape was introduced to illustrate Simpson’s testimony regarding the security devices present at a convenience store purportedly open to the public; multiple surveillance cameras mounted outside the building but not trained on the gas pumps, electric door locks, dark window tints, and the like.

Georgia follows a liberal policy in the admission of photographic evidence. Eiland v. State, 130 Ga. App. 428, 429 (1) (203 SE2d 619) (1973). “Whether, under the evidence, the . . . tape is a fair and accurate representation of the scene sought to be depicted addresses itself to the discretion of the trial judge which will not be controlled unless abused. [Cits.] Where [videotape] shot at a later time [is] used and there is testimony as to immaterial variations between the picture and the scene, the judge’s decision to admit the pictorial representation will not ordinarily be reversed. [Cit.] ” Id. Although Simpson testified the window tint had been changed since the date of the arrest, he stated the tape otherwise accurately depicted the convenience store. Given Simpson’s testimony, which was not rebutted, we find the trial court did not abuse its discretion by admitting the tape.

7. We do not agree with appellant that the State’s violation of the rule of sequestration required that the trial court prohibit Assistant District Attorney Tracy from testifying. Tracy was trying a case in another courtroom and was not present in the courtroom when the rule was invoked. Subsequently, he entered the courtroom and sat at the prosecution table. He then was called to testify. However, Tracy’s testimony was limited to explaining his role as prosecutor during Williams’ probation revocation hearing and reading into the record Platt’s inculpatory statement.

The decision whether to allow a witness who has violated the rule of sequestration to testify thereafter is within the discretion of the trial court. Dowdy v. State, 154 Ga. App. 700 (269 SE2d 530) (1980). Given that the sequestration statute, OCGA § 24-9-61, provides that “[t]he [trial] court shall take proper care to effect [the object of the rule] as far as practicable and convenient, but no mere irregularity shall exclude a witness,” and that the purpose of the rule is to prevent a witness who has testified from influencing witnesses who have not, see Rogers v. State, 257 Ga. 590, 593 (4) (361 SE2d 814) (1987), under the circumstances present here we conclude the trial court did not abuse its discretion. Dowdy, supra.

Decided February 13, 1992

Reconsideration denied February 25, 1992

Beauchamp & Associates, Kenneth W. Musgrove, Kermit S. Dorough, Jr., for appellant.

Britt R. Priddy, District Attorney, for appellee.

8. Appellant’s two enumerations of error regarding the trial court’s grant of the State’s motion for reconsideration after granting appellant’s motion for a new trial are controlled adversely to him by this court’s opinion in Platt v. State, supra.

9. We have carefully examined appellant’s 11 remaining enumerations of error and conclude that they are without merit.

Judgment affirmed.

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


text:
    A91A2095.
    BONDS v. THE STATE.
    (416 SE2d 329)
   Birdsong, Presiding Judge.

Michael Bonds appeals from his conviction for the armed robbery of a liquor store. After his conviction, he was sentenced to life in prison as a recidivist.

The record shows that in April of 1989, a convenience store and, in June of 1989, a liquor store were held up. The two stores are in the same shopping location, have the same owner, and both times the same clerk was robbed. After the second robbery, a person who was outside the liquor store at the time of the crime told the police that Bonds was the perpetrator.

A consent search of the residence where Bonds was living turned up a pistol similar to the one used in the robberies. After learning of the search, Bonds turned himself in to the authorities and confessed to both crimes. With Bonds’ assistance, the police located a money bag taken in the second robbery and upon a second search found the clothing he said he wore in the second robbery.

Tried for both robberies, Bonds was convicted of the second robbery, but acquitted of the first. Bonds alleges the trial court made certain erroneous evidentiary rulings, made charging errors, erred by denying his motion for a directed verdict of acquittal, and erred by holding he had received proper notice under the recidivist statute. Bonds also contends that he was denied the effective assistance of counsel. Held:

1. Bonds’ first enumeration of error alleges the trial court erred by admitting evidence of his identification after what he contends was a photographic line-up that was so impermissibly suggestive there was a substantial likelihood that he was incorrectly identified as the perpetrator. See Thomas v. State, 176 Ga. App. 53, 57 (335 SE2d 135). Bonds’ argument relies upon differences in the description of the robber given the police by the victim and alleged dissimilarities in the dress, skin color, and facial hair of the photographs. We find no error.

The test for determining whether a due process violation occurred in cases such as this “is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” McCoy v. State, 190 Ga. App. 258, 260 (378 SE2d 888). The considerations in evaluating the likelihood of misidentification include: (a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401); McCoy v. State, supra. Considering these factors, we conclude that under the “totality of the circumstances,” Neil v. Biggers, supra, the procedures used in this case were not so impermissibly suggestive as to cause a very substantial likelihood of irreparable misidentification. Harper v. State, 251 Ga. 183, 186 (304 SE2d 693). Moreover, the photographs used in the photographic line-up are in the record, and we are satisfied they do not suffer from the defects Bonds alleges. Thomas, supra at 57.

2. Bonds also alleges the trial court erred by admitting in evidence his confession to the commission of both robberies because his confession was coerced by the police and was thus not freely and voluntarily made and because he was under the influence of drugs at the time of his confession. “Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal. The question of whether or not a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted by this court unless such determination is clearly erroneous. The trial court’s ruling was not clearly erroneous.” (Citations and punctuation omitted.) Brown v. State, 259 Ga. 453, 454 (383 SE3d 882). See Carter v. State, 257 Ga. 510, 513 (361 SE2d 175); Durden v. State, 250 Ga. 325, 327 (297 SE2d 237); Thaxton v. State, 184 Ga. App. 779, 781 (362 SE2d 510).

3. Bonds contends the trial court erred by finding the notice of intent to use prior convictions in aggravation was sufficient to allow his sentencing under OCGA § 17-10-7 because the matters asserted were merely served by the prosecutor and not returned in a separate count of the indictment. There was no error. State v. Freeman, 198 Ga. App. 553, 556 (402 SE2d 529); Anderson v. State, 176 Ga. App. 255, 256 (335 SE2d 487).

4. The fourth enumeration of error asserts the trial court erred by denying his motion for a directed verdict of acquittal because of a fatal variance in the allegata and probata: The indictment alleged one amount of money taken, but the proof showed another amount. Bonds’ argument is without legal support. The crime of robbery, OCGA § 16-8-41, requires only that property, regardless of value, be taken from the person of another. Accordingly, a variance between the amount of money alleged in the indictment and the proof at trial cannot constitute a fatal variance. Bell v. State, 227 Ga. 800 (183 SE2d 357).

A motion for a directed verdict of acquittal should be granted when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Taylor v. State, 252 Ga. 125 (312 SE2d 311). Review of the evidence in this manner reveals ample evidence from which any rational trier of fact could find beyond a reasonable doubt that Bonds was guilty of the offense for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Accordingly, the trial court did not err by denying appellant’s motion.

5. Bonds’ allegation that the trial court erred by charging that the State need not prove the specific amount alleged in the indictment, but need only prove that some amount of money was taken is but another variation of the error asserted in Division 4, and this enumeration is without merit for the same reasons.

6. Although the record and transcript show that Bonds did not request such a charge, he now alleges that the trial court erred by not charging on the lesser included offense of robbery by intimidation. In the absence of a proper request to charge, there is no requirement to charge on a lesser included offense. Mosley v. State, 257 Ga. 382, 383 (359 SE2d 653); Daniel v. State, 248 Ga. 271 (282 SE2d 314). Moreover, we are satisfied that this charge was not raised by the evidence.

7. Finally, Bonds alleges he was denied the effective assistance of counsel, and the record shows that this issue was properly preserved for appeal.

To support this allegation, Bonds must establish that his trial defense counsel’s performance was deficient and that the deficient performance prejudiced his defense. Brown v. State, 257 Ga. 277, 278 (357 SE2d 590). Further, he had to show there was a reasonable probability his trial would have had a different result but for his defense counsel’s unprofessional deficiencies (Baggett v. State, 257 Ga. 735 (363 SE2d 257)), and in doing so he had to overcome the strong presumption that the representation was effective. Clarington v. State, 178 Ga. App. 663, 667 (344 SE2d 485).

Decided February 12, 1992

Reconsideration denied February 25, 1992

Kardos, Warnes & McElwee, Stephen H. McElwee, for appellant.

Harry N. Gordon, District Attorney, Steve C. Jones, Assistant District Attorney, for appellee.

In considering this issue, we measure the trial defense counsel’s performance under the circumstances existing at trial and not with the benefit of hindsight. Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362). Measured in that manner, we find that trial defense counsel’s recommendation to Bonds regarding the pretrial motions was reasonable under the circumstances at that time, and was part of the trial strategy counsel pursued. Assuming that counsel should have called a witness showing that Bonds was a frequent patron of the stores which were robbed, it is not apparent that this would have altered the result of the trial so as to constitute the ineffective assistance of counsel. Even assuming the existence of judgmental and tactical errors, such errors do not always equate ineffective assistance of counsel. Clarington, supra. Although another trial defense counsel may have pursued a different strategy or tactic, this does not constitute a denial of the effective assistance of counsel. Heard v. State, 177 Ga. App. 802, 804 (341 SE2d 459).

Considering the totality of the trial and not just appellant’s allegations of isolated errors (Clarington, supra), we are satisfied that Bonds has not met his burden under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) of showing that his counsel’s performance was deficient and that this deficient performance prejudiced his defense.

After examining the record and transcript in their totality, we find there exists no reasonable probability that the outcome would have been different within the meaning of Strickland v. Washington, supra. In particular, we note that the trial defense counsel pursued an aggressive defense which resulted in an acquittal of one of the two charges against Bonds. Accordingly, this enumeration of error is without merit.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A2129.
    HOUSE v. THE STATE.
    (416 SE2d 108)
   Sognier, Chief Judge.

Cheryl Ann House was jointly indicted with her husband of one month, Marvin Tucker, on charges of armed robbery, aggravated assault, and possession of a firearm during the commission of a felony arising from the robbery of a package store. Upon House’s motion, her trial was severed from that of Tucker. She was convicted by a jury and now appeals from the judgment.

1. Appellant first contends the trial court should have entertained and ruled favorably on her motion to grant use immunity to Tucker so that he could testify on her behalf without compromising his right against self-incrimination. This enumeration is controlled adversely to appellant by Dampier v. State, 249 Ga. 299, 300 (290 SE2d 431) (1982), in which the Supreme Court held that “[u]nder Georgia law, the district attorney has discretion to grant immunity to witnesses for the state. [OCGA § 24-9-28.] Our statutes provide no such discretion to the court and, further, make no provision for a grant of immunity to defense witnesses.” Moreover, even if our law recognized such an immunity, here, as in Dampier, the State’s interest in denying use immunity to Tucker outweighed appellant’s need for his testimony, as the State was planning to proceed with his prosecution if he decided not to plead guilty. See id. at 301-302.

2. House next contends that once her motion for severance was granted, the court should have compelled the State to try Tucker first so that he would have become available as a defense witness for her trial. The record reveals that Tucker had agreed to appear at appellant’s trial as a defense witness to provide “significantly exculpatory” testimony — i.e., that he conceived of the robbery without appellant’s knowledge and that she was not an active participant — if he were tried first, but that if appellant’s trial occurred first he would assert his privilege against self-incrimination. When appellant’s case was called for trial, she raised the question of Tucker’s appearance as a witness and his intention to refuse to testify if her trial occurred before his. The prosecutor then stated that Tucker had indicated he wanted to plead guilty, and that in response the State had given him its sentencing recommendation but Tucker had declined to enter a plea until after he was sentenced in another case pending in federal court in Arkansas. The court then denied appellant’s motion to order the State to try Tucker first.

When a severance motion is granted, “the defendants shall be tried in the order requested by the state.” OCGA § 17-8-4; see Dixon v. State, 12 Ga. App. 17 (1) (76 SE 794) (1912). We note that one of the grounds for granting a severance is the need of one defendant to use the exculpatory testimony of a co-defendant, see Cain v. State, 235 Ga. 128, 129-130 (218 SE2d 856) (1975), which the trial court implicitly acknowledged in granting appellant’s severance motion. However, we find no authority for appellant’s argument that the court should have compelled the State to try Tucker first, at least where, as here, there is an absence of evidence of actual prejudice to appellant. See Dixon, supra. At trial, although appellant testified that Tucker conceived of the robbery without her knowledge or participation and that only he was armed, she did acknowledge pretending to have a gun, giving orders to the store occupants, and taking money from the cash register, and she gave no indication that she did so out of fear that Tucker would harm her if she refused to cooperate. Since appellant’s own testimony was sufficient to authorize a conviction for armed robbery and aggravated assault, see OCGA §§ 16-8-41 (a), 16-5-21 (a) (1), and insufficient to support a defense of coercion, see OCGA § 16-3-26, the testimony Tucker allegedly was prepared to give would have had little exonerative significance. Accord Habersham v. State, 190 Ga. App. 211-212 (1) (378 SE2d 489) (1989) (not error to deny motion to sever where testimony of co-defendant would have lacked credibility and exonerative significance.) Moreover, we also note that the decision not to proceed first apparently was made by Tucker, not by the State. Accordingly, we find no reversible error.

Decided February 11, 1992

Reconsideration denied February 25, 1992

Moore & Davidson, W. Keith Davidson, Johnny R. Moore, for appellant.

Robert E. Wilson, District Attorney, Robert W. Houman, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A91A2246.
    WALSTON et al. v. HOLLOWAY.
    (416 SE2d 109)
   Sognier, Chief Judge.

Gladys Walston and her husband brought suit against Reginald Holloway seeking to recover damages arising out of an automobile accident caused when Holloway’s car struck the car driven by Walston’s daughter, Jennifer Owen, in which Walston and Owen’s son were passengers. Owen’s uninsured motorist carrier, American National Property & Casualty Company (ANPAC), was also served in the suit, answered in its own name, and filed a motion for summary judgment on several grounds, including the ground that it had tendered all the insurance benefits available under the policy to Owen and her son. The trial court granted ANPAC’s motion, and the Walstons appeal.

Decided February 11, 1992

Reconsideration denied February 25, 1992

William W. Keith III, for appellants.

Luther, Anderson, Cleary & Ruth, Steven A. Kreitzer, Clifton M. Patty, Jr., Swift, Currie, McGhee & Hiers, James B. Hiers, Jr., for appellee.

We affirm. Although we have not addressed in the context of uninsured motorist coverage the issue of the right of the insurer to exhaust policy coverage applicable to a common occurrence by selectively settling a portion of the claims in favor of some claimants to the detriment of other claimants, we have addressed this issue with respect to liability insurance. In Allstate Ins. Co. v. Evans, 200 Ga. App. 713, 714-715 (409 SE2d 273) (1991), we held that “ ‘(a) liability insurer may, in good faith and without notification to others, settle part of multiple claims against its insured even though such settlements deplete or exhaust the policy limits so that remaining claimants have no recourse against (the) insurer.’ [Cits.] Were the rule otherwise, an insurer would be precluded from settling any claims against its insured in such a situation and would instead be required to await the reduction of all claims to judgment before paying any of them, no matter how favorable to its insured the terms of a proposed settlement might be. Such a policy would obviously promote litigation and would also increase the likelihood, in many cases, that the insured would be left with a total adjudicated liability in excess of his policy limits.”

Although we acknowledge the differences between liability coverage and uninsured motorist coverage, e.g., the absence of liability of the uninsured motorist carrier’s named insured for sums in excess of the policy limits, we find the public policy considerations behind the holding in Allstate Ins. Co., supra, equally applicable to uninsured motorist carriers and consider that case controlling on the issue raised in this appeal. Other jurisdictions have reached the same conclusion. E.g., Gathings v. West American Ins. Co., 561 S2d 450 (Fla. App. 1990); Palombo v. Broussard, 370 S2d 216, 219-220 (La. App. 1979) (but finding that uninsured motorist carrier engaged in bad faith); Hale v. State Farm Mut. Ins. Co., 474 SW2d 905, 911 (Tenn. 1971). See Appleman, 8C Insurance Law & Practice, § 5108. Accordingly, because there is no evidence or allegation to suggest that appellee acted in bad faith in settling with appellant’s daughter and grandson, Allstate Ins. Co., supra at 715, we find no error in the trial court’s grant of appellee’s motion.

Judgment affirmed.

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


text:
    A91A2261.
    SCOTT v. CHAPMAN et al.
    (416 SE2d 111)
   Sognier, Chief Judge.

Sandra Scott brought suit against William Chapman to recover damages for injuries she incurred as a result of a collision between the car in which she was a passenger and a car driven by Chapman. Since Chapman was uninsured, State Farm Insurance Company, Scott’s uninsured motorist insurance carrier, was served pursuant to OCGA § 33-7-11 (d). Judgment was entered on a jury verdict in favor of Scott. Finding the verdict inadequate, Scott filed this appeal.

1. Appellant contends the trial court erred by denying her motion for a mistrial. After the direct examination of appellant during her case in chief but before cross-examination, appellant moved in limine for an order prohibiting appellees from cross-examining her regarding a shoplifting charge. After considerable colloquy among both counsel and the court, the trial court ruled that appellees could attempt impeachment of appellant using the shoplifting charge only by introducing into evidence a certified copy of her shoplifting conviction and could not cross-examine appellant regarding the charge. Thereafter, in his cross-examination of appellant, appellees’ counsel lifted a document, showed it to appellant, and asked: “Handing you a certified copy of a shoplifting conviction, is that for April 27th?” Appellant answered, “[y]es, sir.” No objection was made by appellant, and appellees’ counsel immediately moved on to other topics in his cross-examination. At the close of appellees’ evidence, defense counsel indicated he would not tender a certified copy of the “conviction” into evidence. After appellant objected vigorously and the objection was overruled, appellant moved for a mistrial. The trial court denied that motion on the basis that appellant had not objected to the question and answer.

On appeal, appellant argues that she did not object to the question and answer because she anticipated that the certified copy of the conviction would be introduced into evidence in accordance with the previous ruling by the trial court, but that given appellees’ subsequent refusal to enter the document into evidence, the question and answer had a highly prejudicial effect on the jury.

“[A] witness cannot be discredited even by his own testimony that he was convicted of a crime involving moral turpitude. It is necessary that a copy of the record of conviction be introduced. [Cit.] Accordingly, the testimony of a witness that he has done some act that the law makes a crime is not a legal method of impeachment.” Durrett v. State, 135 Ga. App. 749, 752 (3) (219 SE2d 9) (1975). This rule is consonant with the. principle prohibiting “evidence, except as specifically allowed by law, of a witness’ conduct in other transactions, criminal or otherwise, having no logical connection with the subject matter of his testimony. The questioning complained of was obviously an attempt, under the guise of testing the witness’ memory, to discredit [her] by testimony inadmissible for the purpose of impeachment. The law does not condone an indirect attack on a witness’ character by evidence that would not be permitted in a direct attack on it.” Rewis v. State, 109 Ga. App. 83, 86 (134 SE2d 875) (1964).

It is clear from the record that appellees’ counsel violated the trial court’s order on appellant’s motion in limine. Although no objection was made to the question and answer, when a motion in limine has been granted no further objection is required to preserve the issue for appellate review. Seay v. Urban Med. Hosp., 172 Ga. App. 344, 346 (3) (323 SE2d 190) (1984). We cannot say that this deliberate violation of the trial court’s order did not influence the jury’s verdict. See id. Accordingly, appellant is entitled to a new trial.

2. We address appellant’s enumerations of error regarding the jury instructions, which may recur upon retrial.

(a) The trial court charged the jury that “if you find that [appellant’s] failure to wear a seatbelt produced or contributed to at least a portion of her damages, you’re entitled to consider whether the damage for which [appellees] may otherwise be liable should be reduced by virtue of her failure to wear a seatbelt.” We find no error in the charge as given, for this incident occurred prior to the effective date of OCGA § 40-8-76.1 (b), and we agree with appellees that there was some evidence in the treating physicians’ testimony meeting the requirement of showing that injuries of the type incurred by appellant are generally reduced by use of a seatbelt. See Payne v. Joyner, 197 Ga. App. 527, 528 (1) (399 SE2d 83) (1990). However, the evidence did not clearly show in this case that appellant was not wearing a seatbelt, and under these circumstances we find it the better practice in charging the jury to indicate clearly the jury’s duty to decide that question of fact as well.

Decided February 11, 1992

Reconsideration denied February 25, 1992

Long & Mullman, Nick Long, Jr., Roy S. Mullman, for appellant.

Downey, Cleveland, Parker & Williams, Y. Kevin Williams, Rodney S. Shockley, for appellees.

(b) We find no error in the trial court’s charge on credibility of witnesses and impeachment. Contrary to appellant’s argument, the charge did not specifically relate to appellant’s testimony but was a general one relating to all testimony at trial and correctly reflected the law.

3. We have reviewed appellant’s remaining enumerations, and find that none is likely to recur upon retrial.

Judgment reversed and case remanded.

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

       We note, although it is not essential to our decision, that it is now apparent that appellees’ counsel could not have had a certified copy of appellant’s shoplifting conviction in hand when he questioned appellant. Appellant shows in her brief that the shoplifting charge had been dismissed prior to the trial of this case after she successfully completed a pretrial diversion program, and thus no such conviction existed. Although this evidence is contained in appellant’s brief rather than in the record, appelles have not denied or contradicted it. Rule 15 (b) (1) of this court provides that “[e]xcept as controverted, the statement of facts by the appellant may be accepted by this Court as being prima facie true.” See Holt v. State, 184 Ga. App. 664 (1) (362 SE2d 464) (1987); Russell v. Flynn, 191 Ga. App. 196, 200-201 (381 SE2d 142) (1989) (Sognier, J., dissenting).


author: Pope, Judge.

text:
    A91A1469.
    TABOR v. THE STATE.
    (416 SE2d 138)
   Pope, Judge.

Appellant/defendant Robert L. Tabor appeals the trial court’s denial of his motion to suppress all evidence gathered as a result of his arrest. Defendant contends his arrest by an Emory University (“Emory”) security officer was illegal because he did not enter Emory’s campus at any time. *

At the time defendant was arrested, he was traveling eastbound on North Decatur Road. An Emory security officer was also travelling in the same direction on North Decatur Road and observed the defendant cross over the centerline several times before the security officer stopped defendant near the intersection of Burlington and North Decatur Roads. The officer arrested defendant for driving under the influence, failure to maintain lane, and fleeing and attempting to elude.

In deciding whether defendant’s arrest was legal, we are guided by Chapter 8 of Title 20 which governs campus policemen. In that chapter college or university is defined as “an accredited, nonproprietary, public or private educational institution of higher learning located in this state.” OCGA § 20-8-1 (3). Emory clearly falls within that definition. “Educational facility” is defined as including a college or university. Id. at (4). Campus is defined by that Code section as meaning “the grounds and buildings owned or occupied by a college or university or the grounds and buildings of a school or training facility operated by or under the authority of the State Board of Education. The term ‘campus’ shall also include any public or private property within 500 yards of the property of an educational facility and one-quarter mile of any public street or public sidewalk connecting different buildings of the same educational facility . . . .” (Emphasis supplied.) Id. at (1). Within the area defined as the university’s campus, any campus policeman who is certified in accordance with OCGA § 20-8-3 and authorized by the governing body or authority of the educational facility has “the same law enforcement powers, including the power of arrest, as a law enforcement officer of the local government with police jurisdiction over such campus.” OCGA § 20-8-2.

Decided February 25, 1992.

King & King, David H. Jones, for appellant.

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Cassandra J. Cook, Assistant Solicitors, for appellee.

The arresting officer testified he was certified as required by OCGA § 20-8-3 and authorized by Emory to exercise law enforcement powers. He also testified that the arrest occurred within 500 yards of property belonging to Emory; the arrest was therefore within Emory’s campus as that term is defined by OCGA § 20-8-1. Accordingly, defendant’s arrest was proper and the trial court correctly denied defendant’s motion to suppress.

Judgment affirmed.

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