text:
    A01A0632.
    MITCHELL v. THE STATE.
    (551 SE2d 404)
   Phipps, Judge.

A White County jury found Paul F. Mitchell III guilty of armed robbery, three counts of kidnapping, and three counts of false imprisonment. Mitchell complains of prosecutorial misconduct, ineffective assistance of counsel, and an erroneous jury charge. He also claims that the verdict is contrary to and against the weight of the evidence. After review, we affirm.

The evidence, when viewed in the light most favorable to the verdict, established that several days before Thanksgiving in 1997, the Leggs-Hanes-Bali factory outlet store in Helen was robbed by a lone man purportedly armed with a bomb-like device that was strapped inside his bulky coat. After directing an employee to empty a register, the perpetrator fled with the money, leaving three female employees tied up inside a rear storage room. The victims described the perpetrator as an older white male with “scraggly looking gray hair” and a predominately gray beard, who was wearing glasses, a burgundy-colored beret or tam-type hat, a gray bulky jacket, and a scarf. Based on their collective descriptions, a sketch artist drew a composite. In a dumpster behind the store, police found a gray parka, beret, glasses, and scarf. Dark green rope like that used to bind one victim was found in the lower left pocket of the gray parka.

Investigators obtained a major break in the case on the day after Thanksgiving, when a hiker found what appeared to be an abandoned campsite on a mountainside near Helen. In addition to several items of clothing, the hiker found a wallet belonging to Mitchell and turned it over to the Helen Police Department. When an officer noticed the remarkable similarity between Mitchell’s photo identification and the composite sketch of the suspect in the armed robbery, Mitchell became the focus of the investigation. In the opinion of Georgia Bureau of Investigation (GBI) Agent Wayne White, Mitchell’s photograph bore an “overwhelming striking resemblance” to the composite drawing.

Mitchell was traced to his mother’s home, his normal place of residence. Clarisse Mitchell confirmed that in November, her son had left on a hiking trip. She recalled that on November 24, after receiving a telephone call from her son, she drove to Helen and picked him up just outside of Helen. When she picked him up, Mitchell appeared tired, unkempt, dazed, and confused. According to entries in the investigative notes of Deputy Sheriff Sherman McIntyre, Clarisse Mitchell remembered that on his hiking trip, her son had taken his gray hooded coat, plaid scarf, some gloves, glasses, painting supplies, and black canvas boots.

On December 10, Mitchell voluntarily provided a detailed, two-page statement, thoroughly incriminating himself in the crimes. Deputy McIntyre testified that before implicating himself Mitchell was fully advised of his Miranda rights. While Mitchell recounted the sequence of events, both McIntyre and Agent White took notes. McIntyre testified that “[Agent White] read [the statement] and showed it to him and they read it together.” Mitchell made a single addition at the end of the document.

Agent White confirmed that he had apprised Mitchell of his Miranda rights twice. In acknowledging his rights, Mitchell initialed next to each declaration and signed a standard GBI waiver form. White emphatically denied promising any benefits or threatening Mitchell in any way. After completing the formal advisement of rights, White asked Mitchell to “tell me in your own words about this.” Then, as White explained, “I wrote out what he related to me, in essence he dictated to me what he wanted to say, I wrote it out. . . .” According to this statement:

Just prior to Thanksgiving of 1997,1 was camping on a hill across from Helen, Georgia. I was cold, hungry, and had no way to get home. I was miserable. I saw the lights of Helen, went down the hill to a two lane street and across the creek to the stores of Helen. I did something totally out of character for me because I was so hungry and desperate. I went in the Hanes store, had the three ladies working there to come to the front, told them I had a bomb and to give me the cash from the cash register. After taking the cash from the three ladies, I told them I was desperate or I would not be robbing them. I put the three ladies in the storage room and tied them up. I tied two of the ladies with a soft macrame cord, and the third with a piece of ribbon. One of the ladies unlocked the back door of the storage room and let me out. I was dressed in a large gray parka type coat, dark colored plaid scarf, maroon beret, and hiking boots. I put the gray coat, plaid scarf and glasses in a dumpster in an alleyway behind Hanes. ...

This statement also incorporated other details including information about his contacting his mother for a ride home. Mitchell added an incongruous disclaimer: “[t]he evidence is true in showing I did this. I agree that I did this. However, I don’t remember everything or anything.”

1. Mitchell contends that the State engaged in prosecutorial misconduct by failing to disclose exculpatory evidence that the three victims were unable to identify him as the perpetrator. He alleges that the State violated Brady v. Maryland by failing to reveal this information before the conclusion of his trial. We disagree.

The three victims testified at trial and each underwent cross-examination. C. H. testified about the appearance, manner, and clothing of the robber and also described the device that appeared to be a bomb. C. H., however, was never asked on direct or during cross-examination whether she recognized Mitchell as the perpetrator or otherwise thought that he was the robber. From C. H., the defense elicited information to suggest that flawed investigative procedures resulted in a tainted composite sketch.

Although T. M. was able to recall specific details of the robber’s appearance and his actions, she could agree only that Mitchell was the only person in the courtroom having “similar features” to the perpetrator. Similarly, while M. T. was able to narrate the events, as to identifying the robber, she expressed uncertainty and could testify only that Mitchell was “possibly” the robber.

During closing argument, defense counsel urged that Mitchell was a victim of a frame-up and a sloppy investigation and had mistakenly been targeted by the GBI. Mitchell’s defense centered on a scenario that while at his campsite, he was robbed, knocked unconscious, then someone impersonated him in committing the robbery. Then, while Mitchell was still convalescing from his head injury, interrogators aided by Mitchell’s nephew were able to twist his remarks to implicate him in crimes he did not commit. Counsel scoffed at the ambivalent and equivocal identification by the victims. Counsel pointed out that C. H. “doesn’t even identify Mr. Mitchell in the courtroom. She’s never done anything to identify Mr. Mitchell as the perpetrator of this crime.” After disparaging the uncertain identification made by the other two employees, counsel argued: “Well, I submit to you, ladies and gentlemen, that they were the only three in that store that night, and if that is the best that this State, this table can do, you’ve got to let my client go. He’s entitled to that. This is ridiculous.”

Without question, Brady imposes an affirmative obligation upon the State to timely provide material evidence in its possession that is favorable to a defendant, including evidence useful for impeachment to show the bias or interest of a witness. But a crime victim’s inability to visually recognize her attacker is not necessarily exculpatory, particularly when that victim can identify the perpetrator by another means, such as by his clothing, manner, or voice.

Long before trial, the defense knew the identities of the victims. An amended statement of service filed March 8, 1999, indicates that the State served the defense with copies of the written statements of each victim. At the motion for new trial hearing, Mitchell’s appellate counsel tried to establish that the victims had informed the district attorney's office that they could not identify the perpetrator and that the prosecutor had deliberately concealed this information. In support of the purported violation of Brady, Mitchell offered three identical post-trial affidavits from the victims, all of whom testify that “[d]ue to the time between the robbery and my testimony in court, I was unable to identify Paul F. Mitchell, III, as the man that robbed the Hanes Outlet. I made the prosecutors aware of this fact prior to testifying in court.” Nevertheless, during the hearing, both T. M. and M. T. denied ever telling anyone that Mitchell was not the perpetrator. On deposition, C. H. repeatedly testified that she could not remember ever telling anybody in the district attorney's office that she could not identify the robber. None of the witnesses retracted or disavowed her trial testimony or ever testified that Mitchell was not the perpetrator. These witnesses were present at trial and subject to cross-examination. No Brady violation or prosecutorial misconduct has been shown.

2. Asserting five grounds, Mitchell claims that he was denied effective assistance of counsel at trial. To establish an ineffective assistance claim, an appellant must show not only that his counsel’s performance was deficient but also that the deficiency so prejudiced him as to create a reasonable probability that but for counsel’s errors, the outcome of the trial would have been different. Failure to satisfy both requirements is fatal to an ineffectiveness claim.

(a) Mitchell contends that he was harmed by his trial counsel’s failure to seek a Jackson-Denno hearing. Although Mitchell argues that this “failure” is so egregious that he should be excused for not having raised the issue sooner, Mitchell cannot show that he was prejudiced by the lack of a formal Jackson-Denno hearing. The evidence shows that Mitchell was informed of his Miranda rights before making the statement, and that the statement was made without threat of force or promise of reward. Because Mitchell failed to show that his statement was not voluntary, he cannot establish that his trial counsel was ineffective for not requesting a separate JacksonDenno hearing.

(b) Mitchell claims that his trial counsel should have objected to the admission of the “robbery note.” Although a note was not used during the commission of the crimes that day, Mitchell’s nephew provided a so-called “robbery note” to investigators. The decision not to object to the introduction of this note formed part of the trial strategy. Defense counsel testified that she did not object to the admission of the note because it dovetailed with part of the defense’s theory that Mitchell’s nephew “had sort of set him up.”

Mitchell also faults his trial counsel for failing to object to Clarisse Mitchell’s consent to the search of her home, failing to present any evidence on his behalf, and failing to object to the charge on a defendant’s statement. Since the first two issues were not raised in the trial court, they were waived. The last issue is addressed below.

3. Mitchell contends that the trial court erred by failing to charge on the difference between a confession and an admission.

An admission differs from a confession in that a confession includes acknowledgment of all the essential elements of the crime and an admission does not. If a statement is an admission, the State must present additional direct and circumstantial evidence of a defendant’s guilt; whereas, if a statement is a confession, the State must merely introduce additional evidence to corroborate it.

Mitchell’s incriminating remarks ended by saying, “[h]owever, I don’t remember everything or anything.” After instructing the jury on the State’s burdens in proving the admissibility of a statement, the trial court essentially tracked the language in the pattern charge that requires other evidence to support a defendant’s statement. In so doing, the trial court apparently opted to treat the entire statement as constituting an admission rather than a confession. Since this instruction was a correct statement of law and was adjusted to the facts, no error has been shown.

Decided June 29, 2001.

Stanley R. Lawson, for appellant.

N. Stanley Gunter, District Attorney, Lynn Akeley-Alderman, Assistant District Attorney, for appellee.

4. Mitchell contends that the verdict was contrary to and against the weight of the evidence. We do not agree. The evidence establishing Mitchell’s guilt was a blend of circumstantial and direct evidence. Circumstantial evidence proved that Mitchell had been present in the Helen area, had left Helen shortly after the crimes, and was the owner of clothing that matched the items of clothing worn by the robber and extracted from a dumpster near the crime scene. The composite sketch of the perpetrator resembled a photograph of Mitchell found in his wallet at a campsite near Helen. Other evidence showed that Mitchell, a white male, age 53 at the time of the crimes, matched the gender, age, and general appearance of the perpetrator, a gray haired, older man with a beard. The victims testified without contradiction that the robber displayed a device appearing to be a bomb, threatened to detonate it, and forced them into a storage area where he tied them up. Mitchell admitted committing the crimes, even explaining why he had done so. This evidence was sufficient to sustain the convictions.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       At sentencing, the convictions for false imprisonment were merged with those for kidnapping.

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

        Ferguson v. State, 226 Ga. App. 681, 682 (2) (487 SE2d 467) (1997).

       See Houston v. State, 187 Ga. App. 335, 338 (3) (370 SE2d 178) (1988).

       See Hightower v. State, 227 Ga. App. 74, 77 (487 SE2d 646) (1997) (physical precedent only) (Brady disclosure required when the inconsistency is so self-contradictory as to contravene the entire impression or total effect of what is said or done).

       Compare Carr v. State, 267 Ga. 701, 711 (10) (482 SE2d 314) (1997).

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Potter v. State, 273 Ga. 325-326 (540 SE2d 184) (2001).

        Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997).

       See Sanders v. State, 245 Ga. App. 701, 703 (4) (c) (538 SE2d 772) (2000).

        Powell v. State, 210 Ga. App. 409, 414 (6) (c) (437 SE2d 598) (1993).

        McCant v. State, 234 Ga. App. 433, 436 (2) (506 SE2d 917) (1998).

        Walsh v. State, 269 Ga. 427, 429 (1) (499 SE2d 332) (1998).

       Id.; see OCGA § 24-3-53.

       Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 32.

       See Shuman v. State, 244 Ga. App. 335, 336 (2) (535 SE2d 526) (2000).

       See McCluskey v. State, 211 Ga. App. 205, 207-208 (2) (438 SE2d 679) (1993).


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A01A0073.
    McDONALD WINDWARD PARTNERS, L.P. v. WENZHOLD, L.P.
    (552 SE2d 92)
   Barnes, Judge.

McDonald Windward Partners, L.P. (“Developer”) appeals from the trial court’s grant of summary judgment to Wenzhold, L.P. (“defendant”) in a suit filed by Developer and McDonald Investments, Ltd. (“Broker”) in connection with a real estate commission owed for the lease of commercial property. For reasons that follow, we reverse.

In their original complaint, Developer and Broker (“plaintiffs”) alleged that Broker was entitled to a commission of $40,178.69 as a result of procuring a tenant for commercial property developed and leased by Developer. Plaintiffs further allege that when Developer sold the property to a third party, Germania of America, Inc. (“Ger-mania”), Germania agreed to pay the commission to plaintiffs. According to the plaintiffs, the defendant, Wenzhold, subsequently purchased the property from Germania and became obligated to pay the commission.

Wenzhold moved for summary judgment, asserting that it was entitled to summary judgment against Developer, in part, because the Developer, who was not a licensed real estate broker, was barred from collecting a real estate commission under Georgia law. See OCGA § 43-40-24 (a). Plaintiffs opposed the summary judgment motion and also amended their complaint for the second time. Plaintiffs’ second amended complaint struck paragraphs 5-12 of their original complaint, containing Counts 1 through 3, and substituted new paragraphs 5-17. Plaintiffs alleged only three theories of recovery against Wenzhold in the second amended complaint: (1) breach of the contract to pay the commission of which Developer was a “proper and intended beneficiary” (Count 1); (2) reformation on the grounds of mutual mistake in the event the contract did not provide for the defendant’s assumption of the obligation to pay the commission (Count 2); and (3) constructive trust on rent payments made to defendant in favor of Developer (Count 3). In their opposition to the summary judgment motion, plaintiffs characterized the effect of their second amended complaint as follows:

Simultaneously herewith, plaintiffs have amended their complaint and have dropped claims against defendant (originally alleged in Count One and Count Three) based on procuring cause and unjust enrichment. . . . Plaintiffs’ amendment sets forth theories of recovery — based on equitable claims of reformation and constructive trust (Count Two and Count Three in the amended complaint) — that are not addressed by the [summary judgment] motion and thus plaintiffs respectfully submit that summary judgment must be denied at least insofar as . . . Counts Two and Three.

Plaintiffs then argued that summary judgment was not warranted on their breach of contract claims.

The trial court issued a five-page written order in which it agreed that the new theories of recovery asserted in Counts 2 and 3 of the second amended complaint “were not at issue at the time the initial motion was filed,” and therefore concluded that “summary judgment is denied as to the newly added claims in Plaintiff’s second amended Complaint. ...” It then analyzed Developer’s third-party beneficiary theory and concluded that the Developer’s claim for the recovery of commissions was barred because the Developer did not have the broker’s license required by OCGA § 43-40-24 (a). It then made the following conclusion: “Defendant [’]s motion for summary judgment as to [Developer] should be and is hereby granted as to all claims in the Complaint, as amended. There being no just reason for delay, final judgment is entered in favor of Defendant and against [Developer] on all claims in the Complaint.”

Developer claims that “[t]he trial court erred in ruling that a party seeking indemnification as to an obligation to pay a real estate commission must be a licensed real estate broker.”

First, we find, after a careful review of Developer’s complaint and second amended complaint, that Developer did not seek reimbursement or indemnity from Wenzhold for the amount of the commission it had already paid to Broker. Nowhere in the complaint or second amended complaint does Developer allege that it had already paid the commission to Broker that should have been paid by Wenzhold. Thus, Developer never asserted a claim for indemnity below. See Davis v. Southern Exposition Mgmt., 232 Ga. App. 773, 775 (2) (503 SE2d 649) (1998) (“Where no funds have yet been expended, a party’s right to seek indemnification has not yet actualized.”).

Instead, Developer asserted that it was a third-party beneficiary to the contract between Germania and Wenzhold in which Wenzhold allegedly assumed Germania’s obligation to pay the commission to Broker. This theory of recovery does not seek to recover a commission that the Developer did not earn as a licensed real estate broker. Instead, it seeks damages from one who allegedly assumed the Developer’s obligation to pay the commission. As a result, the trial court erred when it granted summary judgment to Wenzhold on Developer’s breach of contract claim. It further erred when it (apparently unintentionally) granted summary judgment to Wenzhold on the new theories asserted in the second amended complaint after the motion for summary judgment was filed.

Judgment reversed.

Smith, P. J., and Phipps, J., concur.

Decided July 2, 2001.

Burbage & Weddell, Bruce B. Weddell, for appellant.

Holt, Ney, Zatcoff& Wasserman, Jay F. Castle, for appellee.

       Defendant also moved for summary judgment against Broker. The trial court denied this motion, and this portion of the trial court’s order is not before us. Thus, the Broker’s claim for the unpaid commission survives.

       The first amended complaint merely substituted “Superior Court” for “State Court” in the style of the complaint.


author: Phipps, Judge.

text:
    A01A0105, A01A0106.
    SUNTRUST BANK, MIDDLE GEORGIA, N.A. et al. v. HARPER; and vice versa.
    (551 SE2d 419)
   Phipps, Judge.

SunTrust Bank, Middle Georgia, N.A. (SunTrust), as custodian of an individual retirement account (IRA) and as issuer of a joint savings account, filed a complaint for interpleader and declaratory judgment to seek adjudication of conflicting claims to the IRA and to the certificate of deposit (CD). SunTrust named as defendants Michael D. Harper and SunTrust, as the executor and trustee under the terms of Harper’s father’s will. On summary judgment, the trial court found against SunTrust as executor as to the IRA account but in favor of SunTrust as the executor as to the CD. After review, we reverse the judgment as to the IRA and affirm as to the CD.

SunTrust and William Earl Harper executed an IRA agreement on March 12, 1984, in which Mr. Harper designated his spouse as sole beneficiary. According to the terms of the IRA account, “if no designated beneficiary survives the Depositor, payment shall be made to the Depositor’s estate.” At the time of Mr. Harper’s death in July 1997, his wife had predeceased him by several years. When SunTrust filed suit, the amount in the IRA custodial account was in excess of $341,645.

On July 3, 1996, William Earl Harper’s son, Michael D. Harper, and Roberta Smith filed a petition for the appointment of a guardian for an alleged incapacitated adult seeking creation of a guardianship for Mr. Harper. The petitioners claimed, inter alia, “[t]he proposed Ward has a considerable estate and is the trustee of a trust under the last will and testament of his deceased wife. He is currently incapable of making investment decisions regarding either estate and has been incapable of filing tax returns for 1995.” According to the petition, the duration of the incapacity would be “permanent.” The petition sought appointment of Michael D. Harper as the guardian of the person and property of William Earl Harper. A statement of income and assets disclosed that Mr. Harper was the owner of real and personal property in excess of $3,000,000.

The Probate Court of Bibb County appointed a licensed psychologist to evaluate Mr. Harper. After conducting a hearing pursuant to OCGA § 29-5-6 (d), and based on all the evidence including the psychological report, the probate court granted the guardianship petition, finding that “William Earl Harper is in need of the appointment of a guardian of his person and property.” In the order filed on August 26, 1996, the probate court found that he:

is incapacitated by reason of mental disability to the extent that William Earl Harper lacks sufficient understanding or capacity to make significant, responsible decisions concerning his person and property and to manage his estate. Specifically, the Court finds that William Earl Harper suffers from an advanced dementia of the Alzheimer’s type, which is permanent and characterized by disorientation, confusion and poor memory, and is unable to formulate and communicate rational, informed decisions concerning his person or property.

The probate court ordered a permanent guardianship and expressly removed from Mr. Harper the following powers:

the power to contract marriage; the power to make contracts; the power to consent to medical treatment; the power to establish a residence or place of abode; the power to bring or defend any action at law or equity (except an action relating to guardianship) except through a guardian ad litem; the power to buy, sell or otherwise dispose of or encumber real, personal or trust property; and the power to enter into any other business or commercial transaction.

The probate court did not remove Mr. Harper’s power to make a will or perform an independent determination of Mr. Harper’s testamentary capacity. Nevertheless, the probate court directed his guardian “to file the ward’s will with the Clerk of this Court for safekeeping.” Under that Last Will and Testament executed in November 1991, Mr. Harper appointed Trust Company Bank of Middle Georgia, N.A., now SunTrust, as executor and trustee. Under this will, Mr. Harper devised and bequeathed his entire estate to his children, “share and share alike, or if any such child or children be deceased, to his descendants, per stirpes.” While the petition for guardianship was pending, Cullen, Mr. Harper’s only child other than Michael, died on August 6, 1996. Cullen was survived by two children, Shane and Jason Harper, whose interests SunTrust as executor and trustee now represents.

About a month after the probate court declared his father mentally incapacitated and named him permanent guardian, Michael Harper drove his father to a branch office of SunTrust. There, on September 24,1996, notwithstanding the probate court’s finding that “he lacks sufficient understanding or capacity to make significant, responsible decisions,” Mr. Harper proceeded to execute a document to change the beneficiary on his IRA. With this change, upon Mr. Harper’s death, all proceeds of the IRA would no longer go to the estate but solely to Michael Harper.

Mr. Harper died on July 14, 1997, at the age of 78. In December 1997, SunTrust as custodian of the IRA filed the underlying lawsuit after SunTrust, on behalf of the estate, claimed the IRA proceeds and Michael Harper, as the designated beneficiary on the IRA, claimed them for himself. SunTrust later amended its action to include allegations concerning a CD to which Mr. Harper had added Michael Harper’s name on April 5, 1996, to create a joint account for “William E. Harper or Michael D. Harper.” This change in the ownership of the CD transpired less than three months before the petition was filed seeking the permanent guardianship for Mr. Harper.

The parties filed cross-motions for summary judgment. Sun-Trust as executor contended that the transactions changing the name of the beneficiary of the IRA and adding Michael Harper’s name to the CD should not be recognized as valid and that the proceeds of both accounts should be paid into the estate of William Earl Harper for distribution under the terms of the will to be shared equally between Michael Harper and the estate. Michael Harper claimed that notwithstanding his mental infirmity, his father had experienced a “lucid interval” during which he “was possessed of the requisite mental capacity necessary to effectuate his intention when he named his son Michael as the beneficiary of his IRA.”

Ultimately, the trial court awarded the proceeds of the IRA to Michael Harper based on a conclusion that “the change in beneficiary was testamentary rather than contractual in nature and therefore valid.” The court found, “[b]ecause the power to make a will was not removed by the Probate Court, the beneficiary change was a valid exercise of this power.”

As to the joint CD, the trial court determined that Michael Harper had breached a fiduciary duty imposed by the guardianship. Noting that the law requires a guardian to disclaim any interest in the ward’s property, regardless of when the guardianship is established, the trial court found that Harper had failed to do so. The court found:

In the case at bar, while the joint CD was in full force [at] the time of the appointment, Michael Harper, once appointed, had a fiduciary duty to relinquish his interest in the CD. However, this was not the case. In addition to his failure to reveal the joint nature of the CD to the Probate Court and his failure to relinquish that interest, he also spent a total of approximately $147,000 out of three accounts to care for his father and nothing out of the joint CD account. [Cit.] Therefore, Michael Harper both in theory and in practice violated his fiduciary duty.

The trial court decided that Michael Harper was estopped from claiming sole ownership of the CD and awarded judgment to Sun-Trust as executor. On behalf of the estate, SunTrust appeals the adverse ruling on the IRA, and by cross-appeal, Michael Harper appeals the adverse ruling on the CD.

Case No. A01A0105

SunTrust contends that the trial court erred when it ruled that an incapacitated adult, whose power to contract had been removed, could thereafter validly amend an IRA beneficiary designation so as to name his appointed guardian as beneficiary of the funds. As executor, SunTrust also contends that the same conflict of interest rule that the trial court applied to determine the ownership of the CD should be applied to the IRA which would have been distributed to the estate but for the change of beneficiary designation.

When a question of law is at issue, as here, we owe no deference to the trial court’s ruling and apply a plain legal error standard of review. And, where it is apparent that the trial court’s judgment rests upon an erroneous legal theory, a reviewing court cannot affirm. This is just such a case.

The account at issue, the IRA, was a transaction created under and governed by federal statute, and general principles of contract and banking law are also implicated. Under the terms of the agreement entitled “Individual Retirement Custodial Account,” entered into between William Earl Harper and Trust Company Bank in 1984, Mr. Harper deposited certain funds “to provide for his/her retirement and for the support of his/her beneficiaries upon his/her death,” and SunTrust agreed to act as the custodian of those funds. This contract consists of two pages of very fine print. On the bottom of the second page, the document states, “[t]his agreement shall be binding upon the parties hereto, their heirs, executors, administrators and successors, and shall be construed in accordance with the laws of the State of Georgia. IN WITNESS WHEREOF, the Depositor and the Custodian have executed and sealed this Agreement, on the date and year first above written.”

When the probate court ordered the guardianship of Mr. Harper’s person and property, the court removed not only Mr. Harper’s power to contract but also “the power to buy, sell or otherwise dispose of. . . personal or trust property.” Mr. Harper also forfeited “the power to enter any other business or commercial transaction.” Having been adjudicated mentally incompetent to manage his property or his person, as a matter of law, as of August 26, 1996, Mr. Harper could no longer make contracts or manage his personal property. Plainly, in light of the explicit terms of the probate court order governing the guardianship, Mr. Harper could not have created a new IRA since he no longer had the power either to make contracts or to enter into any business or commercial transaction. Nor could Mr. Harper have made a partial withdrawal of funds from the existing IRA since he lacked the power to otherwise dispose of personal property. By statute,

[a]fter the fact that a person is insane, mentally ill, mentally retarded, or mentally incompetent to the extent that he is incapable of managing his estate has been established by a court of competent jurisdiction in this state and the affairs of such person are vested in a guardian, the power of such person to contract, even though restored to sanity, shall be entirely gone; any contracts made by such person shall be absolutely void until the guardianship is dissolved.

Thus, after the probate court found Mr. Harper was incapable of managing his estate and established the guardianship, Mr. Harper lacked all contractual capacity, and any contract entered into by him was absolutely void.

Under the general principles of contract law, a person who is mentally incompetent cannot change the beneficiary of a life insurance contract. As has been the law for more than a century,

If the act of changing the beneficiary in the policy of insurance be done by the person whose life was insured, at a time when he is legally amable to contract, then, though it be done with the assent of the company and in the manner prescribed in the contract, this change in its terms will have no binding force, and the original contract will remain intact.

We see no reason for a different rule here. In deciding to designate a different beneficiary, Mr. Harper made a material change to the terms of the agreement. Because Mr. Harper no longer had the power to contract, we find that he no longer had the power to modify the contractual terms of the IRA by changing the beneficiary.

This holding squarely comports with state banking law. To avoid the potential for conflicts to arise between provisions inserted in wills disposing of bank accounts and those appearing in banking agreements, this Code specifies that “a P.O.D. payee designation cannot be changed by will.” The Code also provides that “[a]ny transfers resulting from the application of Code Section 7-1-813 [‘Rights of survivorship’] are effective by reason of the account contracts involved in this article and are not to be considered as testamentary.” Accordingly, Mr. Harper could not have changed the designation of the beneficiary of this IRA by means of his last will and testament but had to do so under the terms of his agreement with the bank and in compliance with the principles of the law of contracts. But after entry of the probate court order, he lacked the power to do so.

To avoid the application of state banking law and contract principles, Michael Harper argues that his father’s change of beneficiary on the IRA was testamentary in nature and that despite the guardianship, his father had the requisite testamentary capacity at the time he made the change. Harper contends that changing the beneficiary on an IRA should be viewed as a testamentary act or testamentary in nature since it disposes of property at death. He claims that SunTrust failed to meet its burden of showing by clear and convincing evidence that his father suffered from a total deprivation of reason at the time the change in beneficiary form was executed. But this line of argument is flawed because Mr. Harper was not changing his will but was attempting to change the disposition of a nonprobate asset. While it is true that the creation of a guardianship for an incapacitated adult does not automatically remove that adult’s power to make a will, the capacity to contract, not to make a will, became at issue.

Statutory and case law have long distinguished between the power to make contracts and the power to make a will. The mental capacity needed to make a contract is greater than that required to make a valid will. For that reason, a person may create a valid will at age 14 but may not enter into a contract until the age of majority. In fact, statutory law also recognizes that “[a]n incapacity to contract may coexist with [a] capacity to make a will.” A greater quantum or higher degree of mentality is required to make a contract than to make a will. Consequently, the capacity to contract and testamentary capacity have very distinct legal meanings.

Without question, on September 24, 1996, the date that the change to the IRA agreement was made, Mr. Harper no longer had the power to make contracts or to otherwise dispose of personal or trust property and could no longer enter into any other business or commercial transaction. When Mr. Harper changed the disposition of the funds in the account, his capacity to contract, not his testamentary capacity, became at issue. Since Mr. Harper no longer had the power to modify any of the contractual provisions governing his retirement account, including changing the designated beneficiary, the trial court erred as a matter of law in finding otherwise. In light of this holding, we need not decide whether by being named the sole beneficiary of the IRA proceeds, Michael Harper, as guardian and fiduciary, became placed in a clear conflict of interest position.

Case No. A01A0106

In the cross-appeal, Michael Harper contends that the trial court erred by granting summary judgment to SunTrust as executor of his father’s estate on the question of the ownership of the CD. Notwithstanding Harper’s contention to the contrary, the trial court correctly applied the law governing conflicts of interest by a fiduciary. “The law will not permit a guardian to act in such a way that his own personal interest may come in conflict with the interest of his ward with respect to the estate of the latter in his charge.” A guardian owes a duty of undivided loyalty to his ward and must not place himself in a position where his own personal interests conflict or may conflict with the interests of his ward. The purpose of this loyalty rule is to ensure that a ward receives the unbiased and uninfluenced judgment of his guardian and to eliminate even a hint of suspicion as to the guardian’s actions. Since this loyalty rule is a preventative measure, “[i]t is not necessary that the guardian shall have gained from the transaction, in order to find that he is disloyal. If the dealing presented [a] conflict of interest and consequent temptation to the guardian, equity will provide a remedy at the option of the ward or his estate regardless of gain or loss to the guardian.”

Here, because Michael Harper asserted a joint interest in the CD along with his ward, he undoubtedly occupied a conflict of interest position. As we held in both Moore and Dowdy, if Michael Harper intended to claim title to the CD held in his name and his father’s, and he admitted as much in his deposition, then he should not have applied for and accepted appointment as guardian. Although the trial court expressly found that Harper breached his fiduciary duty by failing to disclose his interest in the CD to the probate court and by preserving the funds in this CD at the expense of other accounts, even without these findings, the result would be the same because by accepting appointment as guardian, Harper breached the duty of undivided loyalty owed to his ward. A guardian like a trustee must avoid being placed in a conflict of interest position. If he cannot do so, he may resign, may fully inform the probate court of the conflict, or may request that the court appoint a different guardian. By not doing so, Harper proceeded at his own peril. Having violated the loyalty rule, Harper became estopped under the principles of fiduciary law from asserting any claim to the property adverse to the interest of the estate. This does not preclude Harper from otherwise claiming an interest in this property under the terms of the will.

Michael Harper argues that the rule of deterrence set forth in Moore and Dowdy should be overruled in light of changes made to state banking law that now accommodate will substitutes. He claims that by operation of banking law, he should have received all of the funds in the joint account under OCGA § 7-1-813 (a), since “sums remaining on deposit at the death of a party to a joint account belong to the surviving party ... as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created.” He argues that absent a showing of actual wrongdoing, he should not have to forfeit his entitlement to monies that his father clearly intended for him to have upon his death. We cannot agree.

OCGA § 7-1-813 (a)’s creation of a rebuttable presumption of ownership by the surviving party actually gives rise to an even greater need for the rule of deterrence as the facts here demonstrate. As part of the sworn petition submitted to the probate court, Michael Harper provided a statement of income and assets “of the proposed ward.” The section describing the ward’s assets held as personal property lists:

Checking account — Bank SunTrust (JT) $ 30,000
Savings account — Bank SunTrust Money Market (JT) $500,000
Certificate of Deposit — Bank SunTrust $100,000
Other items SunTrust IRA $275,000

A notation at the bottom of this page explains, “JT — joint account for convenience with Michael D. Harper.” Nothing on the face of this statement reporting the assets of William Earl Harper would have apprised the probate court or Shane and Jason Harper that Michael Harper was claiming he had a joint ownership interest in the CD.

In their objection filed with the probate court, Shane and Jason Harper opposed Michael Harper’s appointment as guardian of the property. In seeking appointment of SunTrust as guardian, they noted, “William Earl Harper has his checking account, savings/ money market account of one-half million dollars ($500,000), certificate of deposit of $100,000, and an IRA of one-fourth million dollars ($250,000) at SunTrust Bank, and Mr. Harper has 22,918 shares of SunTrust stock in his portfolio.” Again, no evidence shows that Michael Harper advised his nephews, their counsel, or the probate court that he believed that the CD belonged to him and not his proposed ward, notwithstanding his deposition testimony on June 16, 1999, long after Mr. Harper’s death, that his father had made a gift of the CD to him.

Decided July 2, 2001

Jones, Cork & Miller, Hubert C. Lovein, Jr., for appellants.

Martin, Snow, Grant & Napier, Thomas P. Allen III, William H. Larsen, Harris & James, Sarah S. Harris, for appellee.

Probate Court Judge William J. Self II testified as follows:

The fact that the accounts in question [checking, money market, and CD] were disclosed to the court as assets of the ward, especially given the explanatory legend, causes me to believe and state that Michael D. Harper, the proposed guardian, did not then assert any claim to the joint account funds or otherwise assert claims which were adverse to the interests of his proposed ward. Further, the fact that all such accounts were obviously included in my calculation of the bond which I required the guardian to post, indicates to me that I then considered all such accounts to be solely owned by the ward.

(Emphasis in original.) To avoid the conflict of interest situation, Michael Harper could have sought to serve solely as guardian of his father’s person. Had Harper wanted to claim an ownership interest in the CD that was adverse to the estate, at a minimum, he should have timely disclosed his purported interest in that CD to the probate court. This he failed to do.

Judgment reversed in Case No. A01A0105. Judgment affirmed in Case No. A01A0106.

Smith, P. J., and Barnes, J., concur.

       Harper and the estate of his father were asserting adverse claims to the IRA and the CD. The Commercial Department of SunTrust occupied a position of uncertainty, not knowing whether to distribute the proceeds to Harper or to the estate, whose interest the Trust Department of SunTrust was obligated to represent as executor and trustee under Harper’s father’s will.

       See OCGA § 29-5-7 (f).

       After their father died, William Shane Harper and Jason Cullen Harper filed an objection to Michael Harper’s appointment as guardian of the property.

       Without the changes, all funds remaining in the IRA and the CD would have been paid to the estate upon Mr. Harper’s death.

        Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).

        Gwinnett County v. Davis, 268 Ga. 653, 655 (492 SE2d 523) (1997).

       See generally Wood v. Dan P. Holl & Co., 169 Ga. App. 839, 841 (2) (315 SE2d 51) (1984) (trial court’s reliance upon erroneous legal theory requires reversal).

       OCGA § 13-3-24 (b).

       See Ga. Power Co. v. Roper, 201 Ga. 760, 761 (1) (41 SE2d 226) (1947).

        Cason v. Owens, 100 Ga. 142 (28 SE 75) (1897) (naming beneficiary is a material part of a life insurance contract).

       Id. at 145 (1).

       OCGA § 7-1-810 (10) defines a “P.O.D. account” to mean “an account payable on request to one person during his lifetime and on his death to one or more P.O.D. payees or to one or more persons during their lifetimes and on the death of all of them to one or more P.O.D. payees.”

       OCGA § 7-1-813 (e).

       OCGA § 7-1-815.

       Federal statutory law codified in the Internal Revenue Code defines an individual retirement account as a “trust.” 26 USC § 408 (a). Even if this IRA is considered an express trust, Mr. Harper no longer had the power “to otherwise dispose of. . . trust property.”

       See Caldwell v. Walraven, 268 Ga. 444, 447, n. 7 (490 SE2d 384) (1997).

       See Radford, Redfearn’s Wills & Administration in Georgia (6th ed.), § 2-8. According to this treatise, “[t]he most common arrangements that result in non-probate transfers of assets are: life insurance policies, retirement plans, joint tenancy ownership of property, payable on death bank accounts and trust accounts, transferable on death security registration, and inter vivos trusts.” Id. at p. 35.

        Pope v. Fields, 273 Ga. 6, 8-9 (2) (536 SE2d 740) (2000); see OCGA § 29-5-7 (f).

        Smith v. Davis, 203 Ga. 175, 185 (6) (45 SE2d 609) (1947).

       See OCGA §§ 53-4-10; 13-3-20.

       OCGA § 53-2-21, now codified at OCGA § 53-4-11 (b).

        Anderson v. Anderson, 210 Ga. 464, 472 (80 SE2d 807) (1954).

       See Davis, supra, 268 Ga. at 655.

       See Moore v. Self, 222 Ga. App. 71, 73 (2) (473 SE2d 507) (1996).

        Allen v. Wade, 203 Ga. 753 (1) (48 SE2d 538) (1948).

        Dowdy v. Jordan, 128 Ga. App. 200, 204-205 (196 SE2d 160) (1973).

        Moore, supra, 222 Ga. App. at 73 (2).

       (Citation and punctuation omitted.) Id. at 74.

       See OCGA § 24-4-26; Home Ins. Co. v. Wynn, 229 Ga. App. 220, 222 (1) (493 SE2d 622) (1997).

        Wynn, supra, 229 Ga. App. at 222.

        Scoggins v. Strickland, 265 Ga. 417 (1) (456 SE2d 208) (1995).

        Parnelle v. Cavanaugh, 191 Ga. 464, 465-466 (2) (12 SE2d 877) (1941).

       See Wynn, supra, 229 Ga. App. at 222.


author: Eldridge, Judge.

text:
    A01A0202, A01A0203.
    TRAMMEL v. CLAYTON COUNTY BOARD OF COMMISSIONERS et al.; and vice versa.
    (551 SE2d 412)
   Eldridge, Judge.

James Trammel brought a complaint for declaratory judgment and injunctive relief against the Clayton County Board of Commissioners, individually and in their official capacities, C. Crandle Bray, Richard Reagan, Terry J. Starr, Gerald A. Matthews, and Virginia B. Gray, for a proposed expenditure of tax money to erect a hangar at Tara Field in Henry County. After answering, the defendants moved for summary judgment. On January 3, 2000, the trial court granted the motion for summary judgment for the defendants, which was entered on January 4, 2000. On February 18, 2000, the defendants moved for litigation expenses under OCGA § 9-15-14 (a) and (b) within 45 days of final disposition of the case. On May 19, 2000, plaintiff filed his motion for attorney fees under OCGA § 9-15-14 against the defendants for seeking sanctions against him on February 18, 2000; plaintiff’s motion was filed more than 45 days after the final disposition of the case contrary to OCGA § 9-15-14. On July 10, 2000, in separate orders, the trial court denied each motion. On August 24, 2000, this Court granted plaintiff’s application for discretionary appeal. On August 25, 2000, plaintiff filed his notice of appeal. On August 31, 2000, the defendants cross-appealed.

Case No. A01A0202

Plaintiff contends the trial court erred in dismissing his request for sanctions under OCGA § 9-15-14 as being untimely filed. We disagree.

Final disposition of this action within the meaning of OCGA § 9-15-14 (e) was the entry of final judgment by filing the order granting summary judgment on January 4, 2000, in the trial court. Fairburn Banking Co. v. Gafford, 263 Ga. 792 (439 SE2d 482) (1994). Under OCGA §§ 5-6-34 (a) (1) and 9-11-56 (h), the entry of final judgment granting the total summary judgment constituted a final appealable order from which the 45 days began to run within which to seek sanctions. The 45-day period ended in this case on February 18, 2000. Little v. Gen. Motors Corp., 229 Ga. App. 781, 782 (495 SE2d 572) (1997); Gist v. DeKalb Tire Co., 223 Ga. App. 397 (477 SE2d 616) (1996).

After the expiration of 45 days without the filing of the motion seeking sanctions, the trial court lost subject matter jurisdiction to consider such post-judgment motion, because the sanction was a matter of limited right under terms and conditions established by the legislature. OCGA § 9-15-14. Therefore, the legislature limited a trial court’s jurisdiction to consider such post-judgment sanction to motions brought within 45 days after final disposition in the trial court. The 45-day period provided a statutory exception to post-judgment jurisdiction as a limited “window of opportunity” to seek such sanctions, because the trial court was granted power to consider such issues only within such period, which power it lacked absent this legislative grant. When the motion for sanctions “was not filed within [the] window of opportunity, the trial court lacked jurisdiction to consider it.” Fairburn Banking Co. v. Gafford, supra at 794. Thus, failure to bring the motion for sanctions within the window of opportunity means that the trial court loses such legislatively limited power to act outside such time period as a matter of subject matter jurisdiction. See Brassfield & Gorrie v. Ogletree, 241 Ga. App. 56 (526 SE2d 103) (1999); Hewitt v. Walker, 234 Ga. App. 78 (506 SE2d 215) (1998).

This sanction is in derogation of common law, and it must be strictly construed against the movant seeking the benefit of the statute. Browning v. Gaster Lumber Co., 267 Ga. 72, 73 (475 SE2d 576) (1996); DeKalb County v. Post Apt. Homes, 234 Ga. App. 409, 410 (1) (506 SE2d 899) (1998). Thus, final disposition does not mean disposition on appeal or other post-judgment motions, but entry of final judgment in the trial court; otherwise, as in this case, matters could be spun out indefinitely after final disposition by judgment without real finality and closure. See Fairburn Banking Co. v. Gafford, supra at 792; Little v. Gen. Motors Corp., supra at 781; Gist v. DeKalb Tire Co., supra at 397. Therefore, the defendants filing their motion for sanctions under OCGA § 9-15-14 on the forty-fifth day did not extend plaintiff’s time to file his own motion for this or subsequent conduct after the expiration of the 45 days. See Hewitt v. Walker, supra at 78. Thus, the trial court properly denied the plaintiff’s motion for sanctions as being untimely.

Case No. A01A0203

Defendants cross-appealed and raise several issues regarding the trial court’s denial of their motion for sanctions.

The solemn duty devolves upon this court to inquire into its jurisdiction to entertain each appeal and review the alleged errors of the trial court. Byrd v. Goodman, 192 Ga. 466 (1) (15 SE2d 619) [(1941)]. The jurisdiction of an appellate court to consider an appeal depends upon whether the appeal is taken in substantial compliance with the rules of appellate procedure prescribing the conditions under which the judgment of the trial court may be considered appealable.

Gibson v. Hodges, 221 Ga. 779, 780-781 (1) (147 SE2d 329) (1966), rev’d on other grounds, Gillen v. Bostick, 234 Ga. 308, 310 (215 SE2d 676) (1975). This Court has authority to examine its jurisdiction over an appeal on its own motion and to dismiss the appeal if jurisdiction is lacking. Kirby v. Woods, 212 Ga. 20 (1) (90 SE2d 4) (1955); Peoples Loan Co. v. Allen, 198 Ga. 516, 518 (32 SE2d 175) (1944); Fricks v. Cole, 111 Ga. App. 635 (142 SE2d 382) (1965).

For defendants to bring a cross-appeal, this Court must have jurisdiction of the underlying appeal. OCGA § 5-6-38; Wood v. Atkinson, 229 Ga. 179, 180-181 (190 SE2d 46) (1972); Ewing Holding Corp. v. Egan-Stanley Investments, 154 Ga. App. 493, 496 (2) (268 SE2d 733) (1980); see also Reliance Ins. Co. v. Cobb County, 235 Ga. App. 685, 686-687 (510 SE2d 129) (1998). After February 18, 2000, the trial court could not entertain a subsequently filed motion for sanctions by the plaintiff; the trial court lacked subject matter jurisdiction to hear such post-judgment issues, because the motion for sanctions was filed outside the 45-day window of opportunity. Fairburn Banking Co. v. Gafford, supra at 794.

Under OCGA § 5-6-38 (a), a cross-appeal can be brought only where a valid appeal exists. See Buschel v. Kysor/Warren, 213 Ga. App. 91, 93 (3) (444 SE2d 105) (1994). Absent a cross-appeal status for the lack of jurisdiction in the trial court as to the underlying appeal, defendants’ cross-appeal must stand on its own merits as an independent appeal. See OCGA § 5-6-48 (e); Burns v. Howard, 239 Ga. App. 315, 317 (520 SE2d 491) (1999); Patel v. Ga. Power Co., 234 Ga. App. 141, 142 (2) (505 SE2d 787) (1998); Roberts v. Pearce, 232 Ga. App. 417, 418 (501 SE2d 555) (1998).

The defendants’ cross-appeal is based upon the denial of their petition for sanctions, as was the plaintiff’s appeal; however, the plaintiff sought and obtained leave to bring a discretionary appeal, where the defendants did not independently do so. Burns v. Howard, supra at 317; Roberts v. Pearce, supra at 418.

[T]he trial court’s denial of defendant [s’] motion ... is not a final appealable judgment within the meaning of [OCGA § 5-6-35 (a) (1) and (10)]. Rather, that ruling is subject to the . . . application procedures for [discretionary appeal procedure applicable to OCGA § 5-6-35 (a) (10) unless the award is appealed as part of an otherwise directly appealable judgment]. Consequently, since the main appeal . . . must be dismissed in its entirety, and [the] defendant [s] filed no application under [OCGA § 5-6-35 for discretionary appeal] of the denial of its motion ... , we have no independent jurisdiction over the cross-appeal . . . , and the same must be dismissed.

(Citations and punctuation omitted.) Patel v. Ga. Power Co., supra at 142; see also Burns v. Howard, supra at 316-317; Roberts v. Pearce, supra at 418.

Decided July 2, 2001.

Lee Sexton, for appellant.

Hancock & Echols, Jack R. Hancock, Brian R. Dempsey, for appellees.

As such, defendants’ appeal would be untimely as an independent appeal; an untimely appeal constitutes a lack of jurisdiction in the appellate court, mandating dismissal. Boney v. State, 236 Ga. App. 179, 180 (510 SE2d 892) (1999); Thompkins v. State, 157 Ga. App. 203 (276 SE2d 885) (1981). Thus, we dismiss this appeal also for lack of jurisdiction. See Burns v. Howard, supra at 317.

Appeal and cross-appeal dismissed for lack of jurisdiction. Miller, J., concurs.

Andrews, P. J., concurs in judgment only.


text:
    A01A0536.
    SATTERWHITE v. THE STATE.
    (551 SE2d 428)
   Phipps, Judge.

A grand jury indicted Harvey Satterwhite for rape and child molestation. After a trial, he was convicted of child molestation. Satterwhite appeals, contending that the trial court erroneously admitted similar transaction evidence. Because we find no reversible error, we affirm.

The evidence showed that in August 1997, ten-year-old H. C. went to the home of Satterwhite and his family to spend the night with Satterwhite’s daughter, who was her friend. H. C. testified that as she lay on a mattress placed on the floor of her friend’s bedroom, Satterwhite approached her, rolled her onto her back, pulled her shorts down to her ankles, moved her panties aside, exposed his penis, placed it in her vagina, and then moved up and down. After Satterwhite left the room, H. C. started crying, and, Satterwhite’s wife called her mother, who came to take her home. As they rode away, H. C. told her mother what had happened. Her mother drove to the police station, where H. C. reported the incident. Afterward, H. C. underwent medical examination at a hospital. The examining physician testified that while her vaginal area had a “reddish appearance generally,” there was no swelling or laceration and the hymeneal ring was intact.

At trial, the State introduced similar transaction evidence that in 1981, Satterwhite attempted to rape a four-year-old girl and that in 1985, he pulled a co-worker into a restroom of the fast food restaurant where they worked and then choked and raped her. The State also introduced a certified copy of Satterwhite’s guilty plea to four counts of sexual battery and called three of those victims to testify in this case. One battery victim testified that in January 1992, as she was walking from a store, Satterwhite “brushed his hand across [her] butt. . . .” A second victim testified that in January 1992, as she was power-walking around a track behind a local hospital, Satterwhite quietly walked up behind her and “grabbed between [her] legs and kind of squeezed a little bit. ...” A third victim testified that in November 1992, as she was leaving a fitness center, Satterwhite “ran up behind [her] and grabbed [her] on both sides of [her] rear.” The fourth victim did not testify.

1. Satterwhite contends that the trial court erred in admitting similar transaction evidence that while a juvenile, he attempted to rape a four-year-old child. A police officer who investigated the reported rape that occurred in woods behind an apartment complex testified that Satterwhite had confessed

that he indeed had rode the bicycle and had the victim on the back on it, rode her into the woods, asked her to pull her — he said that she’d fell off the bicycle, he stopped and asked her to pull her underwear down, stated that he tried to enter her vagina with his penis, she began to holler and started bleeding, he became scared, ran out of the woods, leaving the victim in the woods by herself.

Satterwhite argues that the statement, given when he was a juvenile, was not a knowing and intelligent waiver of his right to remain silent. Before admitting the statement, the trial court held a Jackson-Denno hearing and considered the nine factors set forth in Riley v. State for determining whether a juvenile’s incriminating statements were voluntary. The court determined that Satterwhite knowingly and intelligently waived his constitutional rights when he gave the incriminating statement. We must uphold that finding unless it is clearly erroneous.

Satterwhite argues that given the absence of a signed Miranda waiver, there is no evidence that he understood his right to consult with an attorney. He further claims that the record is silent as to his education and whether he repudiated the confession.

The investigator testified that he had interviewed Satterwhite at the police station on the day of the reported rape and the next day. At that time, Satterwhite was 16 years old and on juvenile probation. The investigator could not recall whether a family member was with Satterwhite but testified that “[i]t was policy for either a juvenile officer or a parent to be present during the questioning of a juvenile. . . .” During the first interview, the investigator was dressed in civilian clothing. He explained to Satterwhite the nature of his investigation and questioned him for approximately 30 minutes, without challenging any of his answers. Satterwhite admitted that he had been riding a bicycle in the parking lot of the apartment complex but denied seeing the victim. He was released without being charged. But because other witnesses later reported that Satterwhite was involved in the crime, the investigator interviewed Satterwhite a second time.

During the second interview, a juvenile intake officer was present. Although the investigator did not have a copy of a Miranda rights form in the case file, he testified that he advised Satterwhite of those rights, and Satterwhite testified that he remembered that the investigator “went over some questions” and told him that anything he said could be used against him. The investigator estimated that he questioned Satterwhite for less than an hour. Shortly after Satterwhite was told that other witnesses had contradicted his earlier statement, he made the incriminating statement. Again, Satterwhite was allowed to leave without being charged.

Although the record is silent as to Satterwhite’s level of education at the time, that is just one of nine factors to be considered. The record does contain evidence that the investigator explained to Satterwhite his Miranda rights and the nature of the investigation. And given the temporal proximity of the rape and Satterwhite’s second interview, it reasonably can be inferred that he understood at that time why the investigator was questioning him. While no family member was present during the interviews, there is no requirement that a parent be present during questioning of a minor. Formal charges were not filed until some time after the second interview. There was nothing unusual or coercive about either the length or method of the interrogations, and Satterwhite did not resist questioning. The investigator testified that during the course of his investigation, Satterwhite did not repudiate the confession. And although Satterwhite denied at the trial of the instant case that he had made the confession, testifying that the victim had injured herself by falling from a bicycle that they were riding, the trial court is the sole judge of witness credibility. Reviewing the totality of the circumstances surrounding Satterwhite’s statement, we find that the trial court’s conclusion that he made a knowing and voluntary statement was not clearly erroneous.

2. Satterwhite contends that the trial court erred in admitting similar transaction evidence that he raped a co-worker and committed four acts of sexual battery. He argues that the transactions were not sufficiently similar to the crimes with which he was charged. At trial, Satterwhite took the stand and denied the charges of the instant case. Evidence of the transactions was admitted to show Satterwhite’s bent of mind, course of conduct, method of operation, lustful disposition, and identity. To meet the “similarity” requirement for the admission and use of similar transaction evidence, the State must affirmatively show a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. The rule allowing similar transaction evidence has been most liberally extended in the area of sexual offenses. Absent an abuse of discretion, we will not disturb a trial court’s determination that similar transaction evidence is admissible.

(a) As to the rape of a co-worker, Satterwhite points out that the rape involved an adult and that in this case he was convicted of child molestation. But Satterwhite was charged with rape as well as child molestation. And evidence was presented that Satterwhite had non-consensual intercourse with the child victim. Thus, proof that Satterwhite raped a co-worker does tend to prove one of the charges of this case. A difference in the ages of the victims does not render the acts dissimilar. The trial court did not abuse its discretion.

(b) As to the sexual battery convictions, the State has not met its burden. The only similarity between those prior crimes and these charges is that all were of a sexual nature. Without more, proof that Satterwhite committed one sexual offense does not tend to prove the other. The trial court abused its discretion in admitting the sexual battery convictions as similar transactions. Nevertheless, given H. C.’s testimony, the physician’s testimony, and the properly admitted similar transaction evidence that Satterwhite previously raped a co-worker and attempted to rape a four-year-old child, it is highly probable the admission of this evidence did not contribute to the verdict.

Decided July 2, 2001

Dennis T. Blackmon, Allen M. Trapp, Jr., for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       237 Ga. 124, 128 (226 SE2d 922) (1976) (the factors are (1) the accused’s age; (2) the accused’s education; (3) the accused’s knowledge of the substance of the charge and his right to consult with a lawyer and remain silent; (4) whether the accused was held incommunicado or allowed to consult with relatives, ftiends, or an attorney; (5) whether the accused was questioned before or after formal charges were filed; (6) the interrogation methods; (7) the interrogation length; (8) whether the accused previously refused to give statements; and (9) whether the accused repudiated the statement later).

        Reynolds v. State, 217 Ga. App. 570, 572-573 (5) (458 SE2d 855) (1995).

       See McKoon v. State, 266 Ga. 149, 151 (2) (465 SE2d 272) (1996).

       Id.

        Hall v. State, 230 Ga. App. 378, 380 (3) (496 SE2d 475) (1998), overruled on other grounds, Hanifa v. State, 269 Ga. 797, 803 (2) (505 SE2d 731) (1998).

       See Attaway v. State, 244 Ga. App. 5 (534 SE2d 580) (2000).

       See Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

        Livery v. State, 233 Ga. App. 332, 334 (1) (a) (503 SE2d 914) (1998).

       Id.

       Id.

        See Roberts v. State, 242 Ga. App. 621, 624 (1) (b) (530 SE2d 535) (2000).

       See Wallace v. State, 228 Ga. App. 686, 689-690 (3) (492 SE2d 595) (1997).

       See Rary v. State, 228 Ga. App. 414, 415 (1) (b) (491 SE2d 861) (1997).

       See Bloodworth v. State, 173 Ga. App. 688, 689 (1) (327 SE2d 756) (1985); see also Prickett v. State, 220 Ga. App. 244, 245 (1) (469 SE2d 371) (1996), overruled on other grounds, State v. Belt, 269 Ga. 763, 764, n. 1 (505 SE2d 1) (1998); accord Smith v. State, 249 Ga. App. 39, 40-41 (1) (547 SE2d 598) (2001) (where the only similarity between the unrelated offenses of the rape of an adult woman and the child molestation was that both were of a sexual nature, court should sever the trial).

        Haska v. State, 240 Ga. App. 527, 529 (2) (523 SE2d 589) (1999).


author: Miller, Judge.

text:
    A01A0539.
    ADVANCE TECHNOLOGY CONSULTANTS, INC. v. ROADTRAC, LLC.
    (551 SE2d 735)
   Miller, Judge.

The question on appeal is whether a restrictive covenant forbidding a distributor from contacting any of his supplier’s clients for competitive purposes for two years following the termination of the distributorship agreement is enforceable, where no territory is specified. As the covenant is not limited to those clients actually contacted by the distributor during the tenure of the distributorship agreement, we hold it is not enforceable and therefore reverse the trial court’s denial of a motion to dismiss claims arising out of alleged breaches of the restrictive covenant and related restrictive covenants.

This is the second appearance of this case before this court. Advance Technology Consultants (ATC) agreed to distribute RoadTrac’s global positioning satellite system (GPS) products in a distributorship agreement, that contained the following three restrictive covenants:

7.3 During the term of this Contract and for a period of two years after the date of termination of the Contract, Distributor will not contact, directly or indirectly, any of the Supplier’s clients or client contacts (whether developed by Supplier or developed by Distributor) regarding the competitors or similar products and services to Supplier Products, or otherwise circumvent Distributor in the process of Supplier investigation, negotiation or consummation of any transaction relating to the Products. . . . 7.9 Prior to and two (2) years after the termination of this Contract, Distributor shall not pursue the clients of the Supplier in the Territory and in the business markets established during the term of this Contract. [“Territory” is apparently defined as the Communications Industry and the Field Service Industry in the United States.] . . . 11.4 All Products and related client contacts; client lists; monitoring materials; market strategies; pricing and costs information; Supplier’s financial data; and all technical information; whether developed by the Distributor or by the Supplier is and shall become the sole and exclusive property of the Supplier for the Supplier’[s] sole and exclusive use and upon termination of this Contract, Distributor shall cease to use such Supplier Items and return all Supplier Items, and copies of such, immediately to Supplier.

Paragraph 11.4 is listed as a restrictive covenant because the prohibition against ATC using “related client contacts” following the termination of the agreement would prevent ATC from contacting those persons.

ATC allegedly became dissatisfied with RoadTrac’s product and terminated the agreement. RoadTrac sued ATC, asserting various business torts and a breach of contract claim based in part on ATC’s alleged post-termination violation of the restrictive covenants. Arguing the restrictive covenants were unenforceable, ATC moved to dismiss any claims arising out of those covenants. The court denied the motion, reasoning that although such broadly worded covenants would normally be unenforceable, “the restriction of contact with any clients is unimportant because, by definition, any clients of [RoadTrac] are clients with whom [ATC] had contact.” The court also explained that the lack of a geographical territorial restriction was not fatal “as it was understood that, as the exclusive sales distributor of [RoadTrac’s] products, [ATC] would operate throughout an unlimited territory.” We granted ATC’s application for an interlocutory appeal.

1. The first step in considering the enforceability of restrictive covenants is to determine the level of scrutiny to be applied. Georgia courts have traditionally divided restrictive covenants into two categories: “covenants ancillary to an employment contract, which receive strict scrutiny and are not blue-penciled, and covenants ancillary to a sale of business, which receive much less scrutiny and may be blue-penciled.” Under this traditional analysis, covenants found in distributorship agreements have always been treated like employee covenants ancillary to employment contracts.

In recent years, however, a middle level of scrutiny has emerged for reviewing professional partnership or professional shareholder arrangements. The courts have reasoned that in such agreements the consideration flows equally among the contracting parties, as manifest in the partner or professional shareholder not only restricting himself but also exacting from each of the other contracting parties a like restriction. Also, partners and professional shareholders go into the transaction with bargaining power relatively equal to that of the other parties.

The question in this case is whether, for purposes of determining the degree of scrutiny, we should depart from the traditional analysis treating distributorship agreements like employment agreements and instead treat this particular distributorship agreement more like a professional partnership agreement. Here the agreement is decidedly one-sided in favor of RoadTrac, reflecting that the parties entered into the agreement with disparate bargaining power. First, there are no restrictive covenants limiting RoadTrac’s ability to compete with ATC by using other distributors. Second, RoadTrac, as the domestic owner of the GPS technology ATC wanted to distribute, clearly had the strong upper hand in bargaining power, as was manifest in numerous other provisions. The “Obligations” of ATC are set forth in seventeen separately numbered and detailed paragraphs covering three pages, whereas the “Obligations” of RoadTrac are set forth in six paragraphs covering just over one page, with the largest paragraph focusing primarily on ATC’s advertising duties. ATC agrees to sell RoadTrac products exclusively, whereas RoadTrac expressly reserves the right to contract with additional sales and marketing representatives who can service the same territory. Similarly, ATC, but not RoadTrac, agrees to perform its duties at a high ethical standard, to maintain a half-million dollar general liability insurance policy naming the other party as an additional insured, to protect the confidentiality and exclusivity of the other party’s technology and customers, and to not assign or transfer the contract without the other party’s consent. Conversely, only RoadTrac is authorized to terminate the contract upon 15 days written notice and to “take any actions it deems necessary against [the other party] for any material breach of this Contract,” including but not limited to specific performance and recovery of attorney fees.

We discern no reason to depart from the historical treatment of the restrictive covenants in this distributorship agreement like covenants ancillary to an employment agreement. Thus, we employ the strict scrutiny standard, under which such covenants are enforceable only if strictly limited in time and territorial effect and are otherwise reasonable considering the business interest of the supplier sought to be protected and the effect on the distributor.

2. The restrictive covenants at issue are primarily nonsolicit covenants in that they attempt to preclude ATC from contacting or pursuing RoadTrac’s clients. In any case, regardless of whether they are individually or collectively categorized as nonsolicit or noncompete covenants, Georgia law is clear that if one of them is unenforceable, then they are all unenforceable. This is based on the concept that in restrictive covenant cases strictly scrutinized as employment contracts, Georgia does not employ the “blue pencil” doctrine of sever-ability.

We recognize that two recent opinions of this Court in Wright v. Power Indus. Consultants and Wolff v. Protégé Systems possibly strayed from this doctrine and explicitly or implicitly held that an unenforceable noncompete or nonsolicit covenant in an employment agreement would not necessarily invalidate other noncompete or nonsolicit covenants contained in the same agreement. In Wright we struck down a noncompete covenant as overbroad but upheld a non-solicit covenant in the same agreement. In Wolff we held a noncompete covenant was unenforceable but nevertheless went on to consider the merits of the nonsolicit covenant found in the same agreement. As controlling Supreme Court precedent has not changed, and in light of the overwhelming authority on point, we are required to overrule Wright and to disapprove Wolff to the extent that they hold or imply that an overbroad noncompete or nonsolicit covenant in a contract being strictly scrutinized does not automatically render unenforceable other nonsolicit or noncompete covenants in the same agreement.

3. The nonsolicit covenant found in paragraph 7.3 prohibits ATC, for two years after the termination of the distributorship, from contacting any of RoadTrac’s clients or client contacts regarding products or services similar to RoadTrac’s products. No territory is specified. Georgia law is clear that unless the nonsolicit covenant pertains only to those clients with whom the employee had a business relationship during the term of the agreement, the nonsolicit covenant must contain a territorial restriction. The seminal case in this area, W. R. Grace & Co. v. Mouyal, explained that

a restrictive covenant prohibiting a former employee from rendering services to any client of the employer must contain a territorial restriction expressed in geographic terms because that restriction, which does not take into account whether the employee had a business relationship with that client or whether it was the client who solicited the former employee, is otherwise unreasonable and overbroad in its attempt to protect the employer’s legitimate interest in keeping the employee from taking advantage of the goodwill generated during his employment with the employer to lure employer customers away.

Thus, under Mouyal, a “prohibition against doing business with any of an employer’s customers, whether or not a relationship existed between the customer and the former employee, is overbroad” in the absence of a reasonable territorial restriction.

Here ATC, which is in the analogous position of the employee, is prohibited from contacting any of RoadTrac’s clients, but no territory is specified. The trial court’s rationale that a territorial restriction was not necessary is based on the misapprehension that the agreement makes ATC the exclusive distributor of RoadTrac’s products, when in fact RoadTrac expressly reserves the right to contract with additional sales and marketing representatives, even within the same territory. Accordingly, we hold that this nonsolicit covenant is overbroad and unenforceable.

4. As held earlier in Division 2, the conclusion in Division 3 automatically invalidates the other nonsolicit covenants found in paragraphs 7.9 and 11.4 of the same agreement. Even if we considered the merits of these two paragraphs on their own, we note that in neither is the prohibition against contacting or pursuing RoadTrac’s clients restricted to efforts competitive with RoadTrac, but each simply prohibits contact for any purpose. As this prohibits ATC from contacting these clients to sell them unrelated products such as soap or banking products, the covenants clearly go beyond what is necessary to protect RoadTrac’s business interests. Moreover, the territory specified in paragraph 7.9 refers to “business markets established during the term of this Contract.” Even assuming this description was not otherwise impermissibly vague, we hold that because the territory cannot be determined until the contract terminates, this is yet another factor rendering the covenant unenforceable.

The trial court erred in denying ATC’s motion to dismiss claims arising out of alleged breaches of the three nonsolicit covenants found in the distributorship agreement.

Judgment reversed.

Blackburn, C. J., Pope, P. J., Andrews, P. J., Johnson, P. J., Smith, P. J., Ruffin, Eldridge, Barnes, Ellington, Phipps and Mikell, JJ, concur.

Decided July 2, 2001.

Michael A. Dailey, for appellant.

Arnall, Golden & Gregory, Henry R. Chalmers, Kevin B. Getzendanner, for appellee.

        Advance Technology Consultants v. RoadTrac, 236 Ga. App. 582 (512 SE2d 27) (1999) (considering certain discovery rulings).

        Physician Specialists in Anesthesia v. MacNeill, 246 Ga. App. 398, 402 (2) (a) (539 SE2d 216) (2000). See generally Habif, Arogeti & Wynne, P.C. v. Baggett, 231 Ga. App. 289-291 (1) (498 SE2d 346) (1998).

       (Footnote omitted.) Baggett, supra, 231 Ga. App. at 289-290 (1).

        Jenkins v. Jenkins Irrigation, 244 Ga. 95, 97-98 (2) (259 SE2d 47) (1979); see T.V. Tempo, Inc. v. T.V. Venture, Inc., 244 Ga. 776, 778 (262 SE2d 54) (1979); Amstell, Inc. v. Bunge Corp., 213 Ga. App. 115, 116 (2) (443 SE2d 706) (1994).

        Baggett, supra, 231 Ga. App. at 290-291 (1).

        Rash v. Toccoa Clinic Med. Assoc., 253 Ga. 322, 325 (2) (320 SE2d 170) (1984); see Baggett, supra, 231 Ga. App. at 290 (1).

        Amstell, supra, 213 Ga. App. at 116 (2); see Sanford v. RDA Consultants, 244 Ga. App. 308, 310 (1) (535 SE2d 321) (2000).

       See generally Baggett, supra, 231 Ga. App. at 295 (2) (c).

       See Ward v. Process Control Corp., 247 Ga. 583, 584 (2) (277 SE2d 671) (1981); Uni-Worth Enterprises v. Wilson, 244 Ga. 636, 640 (1) (261 SE2d 572) (1979).

        Uni-Worth Enterprises, supra, 244 Ga. at 640 (1).

       234 Ga. App. 833 (508 SE2d 191) (1998).

       234 Ga. App. 251 (506 SE2d 429) (1998).

        Wright, supra, 234 Ga. App. at 834-836 (2).

        Wolff, supra, 234 Ga. App. at 252-253 (1) (a), (b).

       See Rollins Protective Svcs. Co. v. Palermo, 249 Ga. 138, 141 (1) (287 SE2d 546) (1982); Hogan Mgmt. Svcs. v. Martino, 242 Ga. App. 791, 793 (1) (530 SE2d 508) (2000); Johnstone v. Tom’s Amusement Co., 228 Ga. App. 296, 297 (1) (491 SE2d 394) (1997) (physical precedent only); Sunstates Refrigerated Svcs. v. Griffin, 215 Ga. App. 61, 63 (2) (449 SE2d 858) (1994); Windsor-Douglas Assoc. v. Patterson, 179 Ga. App. 674, 675 (2) (347 SE2d 362) (1986); Adcock v. Speir Ins. Agency, 158 Ga. App. 317, 319 (279 SE2d 759) (1981).

       Compare MacNeill, supra, 246 Ga. App. at 405 (3) (holding that in a “middle scrutiny” case an unenforceable noncompete covenant did not void a nonsolicit covenant in the same agreement). As we do not have a “middle scrutiny” case before us here, we do not address whether MacNeill was correctly decided on this point.

       262 Ga. 464 (422 SE2d 529) (1992).

       (Emphasis in original.) Id. at 467 (2), n. 3; accord American Software USA v. Moore, 264 Ga. 480, 481 (1) (448 SE2d 206) (1994).

       (Emphasis in original.) Mouyal, supra, 262 Ga. at 467 (2), n. 2; accord Sanford, supra, 244 Ga. App. at 310 (1). See Capricorn Systems v. Pednekar, 248 Ga. App. 424, 427 (2) (b) (546 SE2d 554) (2001).

       See Howard Schultz & Assoc. v. Broniec, 239 Ga. 181, 184 (2) (236 SE2d 265) (1977) (covenant may not impose “a greater limitation upon the employee than is necessary for the protection of the employer”); accord Fleury v. AFAB, Inc., 205 Ga. App. 642, 643 (423 SE2d 49) (1992).

        AGA, LLC v. Rubin, 243 Ga. App. 772, 774 (533 SE2d 804) (2000); see Koger Properties v. Adams-Cates Co., 247 Ga. 68 (1) (274 SE2d 329) (1981).


text:
    A01A0575.
    BRODES v. THE STATE.
    (551 SE2d 757)
   Phipps, Judge.

A jury found J. Bodre Brodes guilty of two counts of armed robbery based on the victims’ eyewitness identifications of him as the robber. Brodes contends that the trial court erred by (1) refusing to allow his expert witness to testify about the reliability of eyewitness identifications, (2) denying his motions to suppress the results of pretrial photographic and physical lineups, and (3) giving an erroneous pattern jury charge on eyewitness identification. He also claims that the evidence was insufficient to support the verdict. Because we agree that Brodes’s expert witness should have been allowed to testify, we reverse.

On October 14, 1996, at around 11:00 p.m., Randy Barton and Greg Wilson were standing near their cars in the parking lot of a fast food restaurant in Hapeville. A man approached Barton, pointed a gun at him, and said, “I’ll take all your f-ing money.” Barton gave the man his wallet. The man then walked over to Wilson, pointed the gun at him, and demanded his money as well. After Wilson handed the man some money from his pocket, the man walked away. Both victims testified that the parking lot was well lit and that they got a good look at the robber’s face, which was not obscured in any way.

Shortly after the incident, Barton described the robber to the police as a black male, aged 18 to 20, 5’8” to 5T0” tall, with a slender build, a “five o’clock shadow,” and curly black hair that was short on the bottom and longer on top. Both victims told the police that the robber wore a red Bulls jacket.

Lieutenant Melissa Hughes of the Hapeville Police Department, who investigated the case, testified that she focused on Brodes as a suspect. She compiled a photographic array of six black men, including Brodes. On October 16, she showed the photographs to the two victims separately. Wilson immediately identified Brodes as the robber. At trial, he testified that he was positive about the identification. Barton told the police that he thought he recognized the robber but was not certain, and he requested a physical lineup.

On October 17, Hughes assembled a physical lineup of six black men, including Brodes. Both victims, viewing the lineup separately, identified Brodes as the robber. Barton testified that he was “absolutely certain” about his identification. Both victims also identified Brodes in court as the robber.

1. Before trial, the State filed a motion in limine to exclude the testimony of Brodes’s expert witness, Dr. Stephen Cole, who had been called to testify about problems inherent in eyewitness identifications. At a pretrial hearing, defense counsel summarized the expected subject matter of Cole’s testimony. The judge then granted the State’s motion, explaining: “I think this is something the jurors can decide. I don’t think they need expert testimony to help them with it. And I think that’s what Georgia law intends and as it exists now.” Later, the judge added, “I don’t think that the issue of identification is beyond the ken of the jurors.” Defense counsel sought permission to make a proffer of Cole’s testimony. The judge granted that request but stated that it would not change his mind.

During the proffer, Cole testified, among other things, that cross-racial identifications are empirically less reliable than intraracial identifications, particularly when — as was the case hére — a white person is identifying a black person. Cole also testified that studies show that victims at gunpoint are less likely to remember their assailant’s face and that the level of confidence an eyewitness places in his identification bears little relation to its accuracy. The judge ruled that Cole was an expert but reiterated without elaboration that he would exclude his testimony.

In Johnson v. State, our Supreme Court held that

admission of expert testimony regarding eyewitness identification is in the discretion of the trial court. Where eyewitness identification of the defendant is a key element of the State’s case and there is no substantial corroboration of that identification by other evidence, trial courts may not exclude expert testimony without carefully weighing whether the evidence would assist the jury in assessing the reliability of eyewitness testimony and whether expert eyewitness testimony is the only effective way to reveal any weakness in an eyewitness identification. [Cit.]

Brodes argues that the trial court abused its discretion by failing to consider whether Cole’s testimony would have assisted the jury and would have provided Brodes’s only means of revealing weaknesses in the victims’ eyewitness identifications. We agree.

The State admitted that its case against Brodes hinged on the victims’ eyewitness identifications. There was no other evidence tying Brodes to the crime and no evidence corroborating the victims’ identifications. Under these circumstances, Cole’s testimony should have been admitted.

First, the record shows that the testimony would have aided the jury in evaluating the reliability of the victims’ identifications of Brodes. Cole would have testified about several factors affecting the accuracy of eyewitness identification that were otherwise not likely to be fully understood by jurors. Those factors are highly relevant in this case, which involves cross-racial identifications by victims who were at gunpoint and who professed confidence in their identifications. Second, the record shows no other effective means for Brodes to illustrate the potential weaknesses of the victims’ identifications. Although defense counsel cross-examined the victims, the testimony of an expert witness was the only way to put before the jury the empirical evidence proffered by Cole.

Moreover, we cannot say that the exclusion of Cole’s testimony was harmless error. The only evidence against Brodes was the victims’ identifications of him, and Brodes’s only defense was mistaken identity. Thus, the reliability of the victims’ identifications was the pivotal issue.

2. The trial court denied Brodes’s motion to suppress the results of the photographic and physical lineups. Brodes argues that this was error because the other participants in the lineups did not look like him. We disagree.

To determine whether evidence of pretrial identification, should be excluded, we first consider whether the identification procedure was impermissibly suggestive. If it was, then we consider whether there was a very substantial likelihood of irreparable misidentification.

(a) The photographic array compiled by Lieutenant Hughes consisted of photographs of six black males, including Brodes. Brodes contends that the men in two of the photographs appear to be much older than he is and a third man has much lighter skin. Assuming the victims could eliminate those three photographs immediately as dissimilar to the victims’ description of the robber, the three remaining photographs — including the one of Brodes — depict men who are relatively similar in appearance and who do match the victims’ description.

Although Brodes argues that his photograph is slightly larger than the other two, has a different background, and appears to be partially cut off at the top, these discrepancies áre not so great as to “lead the viewer inexorably to conclude that [Brodes] was the suspect.” Brodes also asserts that these men had mustaches, whereas he did not. Our review of the original photographs shows that while the other two men had sparse, though discernible, mustaches, it appears that Brodes also had facial hair above his upper lip. Moreover, Barton described the robber as having a “five o’clock shadow.” In any event, our Supreme Court has held that discrepancies in amount of facial hair do not render a pretrial identification unfairly suggestive.

We conclude that the photographic array was not so suggestive as to require exclusion.

(b) Brodes contends that the physical lineup was unfair because he was the only person to appear both there and in the photographic array and because the other participants in the physical lineup were “not of similar age or description.”

In Denegal v. State, we held that the fact that the defendant was the only person to appear in both a photographic display and a physical lineup did not “render the pre-trial identification procedures impermissibly suggestive.” Moreover, we have reviewed photographs of the participants in the physical lineup and find no conspicuous dissimilarities between Brodes and the other men. “[I]n the absence of evidence of record demanding a finding contrary to the judge’s determination, we will not reverse the ruling denying the suppression.”

Decided July 2, 2001

Henry A. Hibhert, for appellant.

Paul L. Howard, Jr., District Attorney, Alvera A. Wheeler, Bradley R. Malkin, Assistant District Attorneys, for appellee.

3. Brodes objects to the trial court’s use of a pattern jury instruction on eyewitness identification that includes “the level of certainty shown by the witness about his identification” as a factor the jury can consider in assessing the reliability of the identification. However, Brodes requested this charge. “The act of requesting an instruction in the trial court constitutes a specific waiver of the right to enumerate it as error on appeal. Because [Brodes] induced the giving of the charge below, he is precluded from attacking it now. Thus, . . . we are unable to reconsider the validity of the pattern charge as currently formulated.”

4. Brodes contends that the evidence was insufficient to support his convictions because there was a substantial risk that the victims incorrectly identified him as the armed robber. However, in reviewing a challenge to the sufficiency of the evidence, we do not assess the credibility of witnesses. Our task is limited to determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Here, the testimony of the victims identifying Brodes as the robber was sufficient to authorize his convictions, and evaluating the accuracy of those identifications was within the exclusive province of the jury.

Judgment reversed.

Smith, P. J., and Barnes, J., concur.

       272 Ga. 254 (526 SE2d 549) (2000).

       (Footnote omitted.) Id. at 257 (1). Johnson was decided after Brodes was convicted but before he filed his notice of appeal. Therefore, under the appellate “pipeline” rule, Johnson applies to this case. See Taylor v. State, 262 Ga. 584, 586 (3) (422 SE2d 430) (1992); Freeman v. State, 269 Ga. 337, 339 (1) (c) (496 SE2d 716) (1998).

       Compare Johnson, supra at 258-259 (2) (victim’s identification of defendant as armed robber was corroborated by photographs taken by ATM camera and by independent witness who identified defendant; State also presented evidence of a similar transaction).

       See id. at 259-260.

       Compare id. at 260 (expert testimony not necessary because an independent witness’s identification of defendant was not made under stress and was not “based on generalized racial characteristics but on individual details”).

        Karim v. State, 244 Ga. App. 282, 283 (2) (535 SE2d 296) (2000).

       Id.

       Although the victims told the police that the robber was black, the record does not indicate that they provided any specific description of the robber’s skin tone.

        Karim, supra at 286; see also Thompson v. State, 240 Ga. App. 26, 31-32 (7) (521 SE2d 876) (1999) (exclusion of array not required despite variation among size of photographs and presence of facial hair on subjects); Brewer v. State, 219 Ga. App. 16, 20 (6) (463 SE2d 906) (1995) (contention that the shading and tone of defendant’s photograph made photographic identification procedure unduly suggestive was without merit); Cheeves v. State, 157 Ga. App. 566 (1) (278 SE2d 148) (1981) (array not impermissibly suggestive where backgrounds and sizes of photographs differed, and some subjects wore hats).

        Miller v. State, 270 Ga. 741, 743 (2) (512 SE2d 272) (1999).

       193 Ga. App. 238 (387 SE2d 434) (1989).

       Id. at 239 (1).

       (Citation and punctuation omitted.) Wright v. State, 211 Ga. App. 474, 477 (3) (440 SE2d 27) (1993).

       (Citations omitted.) DeLoach v. State, 272 Ga. 890, 892 (2) (536 SE2d 153) (2000).

        Millwood v. State, 237 Ga. App. 748 (1) (516 SE2d 799) (1999).

        Free v. State, 245 Ga. App. 886 (1) (539 SE2d 213) (2000).

       See Willis v. State, 241 Ga. App. 813, 814-815 (1) (527 SE2d 895) (2000); Ford v. State, 239 Ga. App. 257, 258 (1) (520 SE2d 923) (1999).