text:
    A93A1842.
    PRATT v. THE STATE.
    (440 SE2d 485)
   McMurray, Presiding Judge.

Defendant was charged, via two-count accusation, with operating a moving vehicle while under the influence of alcohol to the extent that it was less safe for her to drive and with having a blood-alcohol concentration of .10 grams or more within three hours after driving. The evidence adduced at a bench trial revealed the following: At about 2:40 in the morning on January 26, 1992, Officer Melton L. Mangrum, Jr., and Sergeant Roger DeWitt of the Gwinnett County Police Department were leaving an apartment complex when they spotted a car in the parking lot outside a marked parking space. The car was running and the vehicle’s taillights were illuminated. The officers approached the vehicle and found defendant slumped over in the seat. The vehicle’s transmission was engaged and defendant’s foot was on the brake. The officers “knocked on the glass several times trying to get [defendant’s] attention . . . , with no avail. She would not wake up. At that time Sergeant DeWitt opened the door [and defendant] woke up. Sergeant DeWitt instructed her to get out of the car or to put the car in park, to get out of the car. [Defendant] put the car in park [and, as] she was getting out of the car, she stumbled and fell against the door. [The officers] could smell the . . . odor of alcohol come out of the car.” They also smelled alcohol on defendant’s breath. Defendant stated that she had consumed alcohol at a friend’s apartment and that she was on her way home. Defendant’s eyes were bloodshot, her speech was slurred and she seemed incoherent. Defendant’s attempt at the alphabet field sobriety test was an utter failure and the officers did not try the physical dexterity field sobriety tests for fear that defendant would injure herself. A breath test later revealed that defendant’s blood-alcohol concentration was .13 percent.

The trial court found defendant not guilty of having a blood-alcohol concentration of .10 grams or more within three hours after driving, but guilty of operating a moving vehicle while under the influence of alcohol to the extent that it was less safe for her to drive. This appeal followed judgment on the verdict. Held:

Decided January 11, 1994

Reconsideration denied January 25, 1994.

Spruell & Dubuc, Billy L. Spruell, Melinda D. Taylor, for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Allison Thatcher, Assistant Solicitors, for appellee.

1. Defendant first contends the trial court’s verdicts are inconsistent. This contention is without merit as the inconsistent verdict rule has been abolished in Georgia. Milan v. State, 255 Ga. 560, 562 (2) (341 SE2d 216).

2. Next, defendant contends the evidence was insufficient to support a finding that she was in physical control of a moving vehicle. The contention is without merit. Evidence that defendant was incoherently intoxicated when Officer Mangrum and Sergeant DeWitt found her slumped behind the wheel of a running vehicle; that the officers found the vehicle outside a marked parking space and away from any apartment building; that the vehicle’s transmission was engaged and that defendant’s foot was on the vehicle’s brake pedal is sufficient to authorize the trial court’s finding that defendant is guilty, beyond a reasonable doubt, of operating a moving vehicle while under the influence of alcohol to the extent that it was less safe for her to drive. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Jones v. State, 187 Ga. App. 132 (1) (369 SE2d 509).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A93A1929.
    ATKINS v. THE STATE.
    (440 SE2d 476)
   Smith, Judge.

Gwendolyn Atkins was convicted of possession of methamphetamine with intent to distribute, OCGA § 16-13-30 (b), and possession of more than an ounce of marijuana, OCGA § 16-13-30 (j) (1).

The charges against Atkins resulted from the discovery of methamphetamine and marijuana during a search of her home executed pursuant to a no-knock search warrant. In her sole enumeration of error, Atkins contends her motion to suppress the contraband found in her home was erroneously denied because no probable cause existed for the issuance of the warrant.

The evidence at the hearing on the motion to suppress showed that Robert H. Sowell of the Clayton County Sheriffs Department had presented an affidavit to a magistrate in support of his request for a warrant to search certain described premises in Clayton County. The evidence further showed that Sowell was an experienced law enforcement officer assigned to the Narcotics Unit of Clayton County as a special agent. His affidavit contained specific facts he alleged established probable cause to believe that a crime had been, or was being, committed at the described house.

Those facts consisted of the following: Within the 72 hours preceding the presentation of the affidavit, Sowell had been contacted by a confidential source Sowell considered a reliable informant. Sowell considered the source reliable because within the previous six months, the source had provided information that led to the seizure of controlled substances and drug arrests. After he contacted Sowell and within the previous 72 hours, the informant had been wired with a body bug and directed by law enforcement officers to participate in the controlled purchase of three-and-one-half grams of methamphetamine from one Calvin Hackler. This transaction took place at Hackler’s home in Clayton County. When the informant arrived at Hackler’s home, their conversation was recorded by the body bug. Hackler told the informant that he did not have the methamphetamine but would get it from a place a few blocks away. The informant gave Hackler $250, and Hackler left his house. Hackler was followed by law enforcement officers, including Sowell, to a nearby house while the informant remained at Hackler’s home. Hackler was observed entering the other house. He stayed about five minutes before emerging. Officers then followed him directly back to his own home where he immediately gave the informant the methamphetamine. Sowell subsequently applied for a warrant to search the premises Hackler had visited during the controlled buy. Those premises proved to be the residence of Atkins. Sowell testified at the hearing that no other information was provided to the magistrate.

Relying solely on state law, Atkins argues that because neither the informant nor the officers saw what transpired in Atkins’ home during Hackler’s visit, and because Atkins’ name was never mentioned during the conversation between the informant and Hackler, the information in the affidavit constituted only a mere suspicion that Atkins was involved in illegal drug activity and did not provide probable cause to issue the search warrant. We do not agree.

“In determining whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant, we employ the ‘totality of the circumstances’ analysis enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted by [the Georgia Supreme Court] in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984), with the admonition that ‘Prudence counsels that Gates be considered as the outer limit of probable cause.’ [Cit.] Under that analysis, ‘(t)he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . conclud(ing)’ that probable cause existed. (Cit.)’ [Cit.]” Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992).

Decided January 5, 1994

Reconsideration denied January 25, 1994

Jim B. Sullivan, for appellant.

Robert E. Keller, District Attorney, Mary D. Hanks, Assistant District Attorney, for appellee.

The information in the affidavit in this case was supplied by an experienced law enforcement officer and an informant who had proved reliable in the past. The facts here differ markedly from those in State v. Brown, 186 Ga. App. 155 (366 SE2d 816) (1988), cited by Atkins. In Brown, the information was given to the police by an anonymous tipster, and no facts establishing the informant’s reliability were presented to the magistrate. In addition, in Brown the affiant and his partner had observed only that “numerous” people, who were unnamed but had been seen by the affiant’s partner “in drug areas,” visited the premises for short periods of time and received small manila envelopes in exchange for cash. Id. at 158.

In contrast, the affiant in this case presented facts clearly establishing the informant’s reliability; the affiant personally heard a conversation in which a named person who sold the informant illegal drugs told the informant he would obtain those drugs at a place nearby; and the affiant personally followed that named person to the location named in the affidavit, which proved to be Atkins’ home, after which the affiant followed that named person back to the location where the sale then immediately took place. Applying the standard cited in Gary, supra, to the affidavit in this case, we hold that the information in the affidavit was “more than a casual rumor,” State v. Alonso, 159 Ga. App. 242, 243 (283 SE2d 57) (1981), and provided the issuing magistrate with a substantial basis for concluding that probable cause existed to believe contraband would be found at Atkins’ home. The trial court did not err in denying Atkins’ motion to suppress.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


author: Andrews, Judge.

text:
    A93A1722.
    DEPARTMENT OF HUMAN RESOURCES v. BRANDENBURG.
    (440 SE2d 498)
    Decided January 25, 1994.

      Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Cynthia H. Frank, Staff Attorney, for appellant.
    Keith W. Brandenburg, pro se.

   Andrews, Judge.

The application to appeal of the Department of Human Resources was granted to consider the trial court’s refusal to issue an income deduction order pursuant to OCGA § 19-6-32. We reverse.

A divorce and support order was entered in January 1986 under which Ms. Brandenburg received custody of the minor child. Mr. Brandenburg, appellee, was ordered to pay weekly child support. From February 1992 until November 1992, Ms. Brandenburg received Aid to Families With Dependent Children. The department filed its petition to modify the divorce decree so that payments would be made directly to the child support receiver and requesting that an income deduction order be entered.

The court, noting that Mr. Brandenburg was not in arrears on his child support payments at that time, “decline [d] to allow an income deduction order to collect Respondent’s support obligation.”

Under OCGA § 19-11-6 (a), the recipient of public assistance “shall be deemed to have made an assignment to the department of the right to any child support owed for the child.”

While, upon a showing of good cause, the court in its discretion may determine when the income deduction order is to be effective, OCGA § 19-6-32 (c), whether to issue such an order in this situation is not discretionary, but mandatory. Ga. Dept. of Human Resources v. Pernice, 260 Ga. 732 (399 SE2d 65) (1991).

Judgment reversed.

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

         The divorce decree contained the statutorily mandated language of OCGA § 19-6-30, which provides for continuing garnishment upon a failure to make child support payments.


text:
    A93A2107.
    FREEMAN v. THE STATE.
    (440 SE2d 490)
   Smith, Judge.

Emmett Freeman was indicted for the offenses of aggravated assault and DUI. He pled guilty to aggravated assault and was sentenced to ten years on probation. The DUI charge was placed on the dead docket. Several weeks later, Freeman filed a motion to reduce sentence or, alternatively, for a hew trial. At the hearing held on the motion, the trial court treated the motion as one to withdraw Freeman’s guilty plea and denied it. Freeman appeals.

The transcript shows that on December 14, 1992, after initial plea negotiations, the defense elected to proceed with a jury trial. The prosecutor then invited defense counsel to put up a non-negotiated plea, “and see what the Judge gives him.” The trial court agreed, stating: “I’ll allow you to reserve that right and withdraw your plea if you don’t like the sentence.” A hearing then ensued, during which the prosecutor asked Freeman the questions required under Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969), to establish the voluntariness of a guilty plea and the defendant’s understanding of the nature of the charge and the consequences of his plea. Although Freeman stated in response to the prosecutor’s question that he was pleading not guilty, his retained counsel indicated it was understood that the questioning was directed to a plea of guilty. Freeman’s responses to the Boykin questions clearly indicate that he understood the charges against him and the maximum sentences that could be imposed: if he pled guilty, he could be sentenced to up to 20 years in prison for aggravated assault or 21 years on both charges. He indicated that no threats, coercion, or promises had been used, that he was not under the influence of drugs or alcohol, and that his plea was entered freely and voluntarily.

In a sentencing hearing that followed, the court heard testimony from the victim, who had formerly lived with Freeman, and from Freeman. The State recommended fifteen years incarceration, and the defense requested three to five years probation. After a brief conference in chambers, the court continued the hearing for four days. When the hearing reconvened on December 18, 1992, the prosecutor announced that Freeman had entered a plea of guilty to the aggravated assault count and the DUI count had been placed on the dead docket. The court then informed Freeman that his guilty plea was accepted and his sentence would be ten years probation, with certain conditions. After making extensive explanation of the reasons for the sentence and the conditions, the trial court inquired of both the State and the defendant if they had anything further. The prosecutor responded negatively. Defense counsel made two inquiries regarding the court’s admonition to stay away from the victim, asking whether Freeman could visit with his children and whether he could give them toys at Christmas. No other inquiries or comments were made.

On January 5, 1993, defense counsel filed his “motion to reduce sentence and, or, motion for a new trial,” relying on the court’s previous assurance that the plea could be withdrawn if Freeman did not like the sentence. After a hearing, at which the motion was treated as one to withdraw the guilty plea, the trial court denied the motion, finding that it was clear from the transcript that Freeman had accepted the sentence when, pronounced.

1. Freeman contends that his guilty plea was not freely and voluntarily made and that the trial court therefore erred in denying his motion to withdraw the plea. He bases this contention on the fact that the judge conducted no colloquy with Freeman after his plea was entered, citing Purvis v. Connell, 227 Ga. 764 (182 SE2d 892) (1971). There is no merit in this contention.

First, although in Purvis the Supreme Court stated that after Boykin, supra, state court judges have the same duty as federal judges under Rule 11 of the Federal Rules of Criminal Procedure to ensure the voluntariness of a guilty plea, there is no requirement under Georgia law that the trial judge personally address the defendant, as Rule 11 explicitly requires. See State v. Germany, 245 Ga. 326, 328-329 (265 SE2d 13) (1980).

Second, Freeman pled guilty although maintaining his innocence, under the authority of North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970). In Alford, the Supreme Court held that a claim of innocence coupled with a guilty plea does not necessarily demonstrate that the plea was not free and voluntary. No constitutional error exists in accepting such a plea when the defendant intelligently concludes it is in his best interest and the judge has inquired into the factual basis for the plea and sought to resolve the conflict between the plea and the claim of innocence. See Clark v. State, 186 Ga. App. 106, 107 (366 SE2d 361) (1988). Such is the case here. Freeman entered a plea under the authority of Alford. It is clear from the transcript that it was freely and voluntarily made. The court inquired into the factual basis for the plea and, satisfied that the plea was intelligently entered despite Freeman’s claim of innocence, accepted the plea. Particularly in view of the court’s offer to allow Freeman to withdraw the plea should he be displeased with the sentence, we find no error in the court’s determination that Freeman’s guilty plea was entered knowingly and voluntarily.

2. The question then becomes whether Freeman timely exercised his granted right to withdraw the plea. There is no absolute right to withdraw a guilty plea after sentence is orally pronounced. OCGA § 17-7-93 (b); State v. Germany, 246 Ga. 455 (1) (271 SE2d 851) (1980). The decision whether to allow such withdrawal of a plea in the same term of court is within the discretion of the trial court, and will not be disturbed on appeal absent a manifest abuse of such discretion. Covington v. State, 196 Ga. App. 498 (396 SE2d 298) (1990). We find no such abuse of discretion here.

Decided January 25, 1994.

Harry J. Beecham, Jr., for appellant.

Lewis R. Slaton, District Attorney, Carole E. Wall, Assistant District Attorney, for appellee.

In delivering its ruling from the bench, the trial court made clear that its offer to allow withdrawal of the guilty plea had not been intended to remain open, nor would the law allow it to remain open, for an indefinite length of time. We agree with the trial court that once sentence was pronounced, the defendant or his counsel was obligated to respond if the sentence was not acceptable to them. By their silence, clearly reflected in the transcript, they indicated acceptance of the sentence. The offer then expired, because knowing the sentence and having had the benefit of counsel, Freeman freely and voluntarily let his guilty plea stand. See generally Smith v. State, 231 Ga. 23, 25-26 (200 SE2d 119) (1973).

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge.

text:
    A94A0137.
    PATTERSON et al. v. FIRST ASSEMBLY OF GOD OF TIFTON.
    (440 SE2d 492)
   Birdsong, Presiding Judge.

Kathy S. Patterson and Carl A. Patterson appeal the grant of summary judgment to First Assembly of God of Tifton in their suit for damages arising from Mrs. Patterson’s fall on a ramp on church school premises. The ramp was made of slightly graduated wooden stairs. Mrs. Patterson had taken her daughter up the ramp to the “Ark” for school, and was descending the ramp when her right foot slipped on the wet wood, causing her to break her left foot in several places.

Appellants contend Mrs. Patterson had no actual or constructive knowledge of the specific defective condition of the ramp because she had never descended it when the ramp was wet. They also contend the uncontroverted evidence showed appellee violated numerous building code safety regulations thereby creating a dangerous condition. Their expert’s affidavit states that in January 1991, eleven months after Mrs. Patterson’s fall, the expert studied the ramp. He found it was defective and unreasonably dangerous and did not comply with the standard business code; it had improper step geometry, non-uniform risers, sloping treads, handrails too low, guardrail openings too large and lack of maintenance, and fungus on the wood; the fact that Mrs. Patterson slipped when the ramp was wet led him to conclude that the ramp was slippery because of the fungus and the lack of slip-resistant treads. Held:

On motion for summary judgment, the evidence is adjudged in favor of the respondents and all doubts are resolved in their favor (Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474)), but a respondent’s self-contradictory testimony, if not reasonably explained, is construed against her. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680).

Patterson had safely walked up the wet stairway to take her daughter into the Ark. Appellee’s employee Rev. Stokes testified that after all she fell, Patterson said, “Well, it’s not your fault ... it was just raining and I was in a hurry and slipped and fell.” She testified in deposition that she was not in a hurry. However, she also testified she had to be at work at 8:00 a.m. and that she arrived at work as the bell chimes almost every morning, but that there was no set time to arrive “if you get there . . . five or ten minutes after [8:00], I’d say 15 minutes leeway”; her practice was to arrive at 8:00. She allowed ten minutes to drive from the school to work. This day she arrived at the school at “probably about ten till 8:00.” Although she deposed she was not on a “tight schedule,” it is clear that if she arrived at the school at ten till 8:00, she would not have time to get out of her car, go up the ramp and deposit her daughter, descend the ramp, get into her car and drive to her place of work, get out of her car, and arrive at work as the bell chimed at 8:00. She could not arrive five or ten minutes late without hurrying. If she arrived 15 minutes after 8:00 she would be quite late. Construing this evidence under Prophecy Corp., supra, she was on a “tight schedule” as she descended the ramp.

Mrs. Patterson had traversed the ramp out of the Ark about ten times, and in the past her foot “had slid on the boards on the steps. Before I had noticed on an occasion going down those steps that when your foot lands between the 2-by-4s ... if your foot steps in a certain spot, [because of] the unevenness of the two boards . . . your foot straddles that. It will slide from one to the other. [This had happened] on at least one occasion, I remember thinking at that time.” (Emphasis supplied.) She knew where the handrail was, and “there’s [nothing] to obstruct your vision as such. The stairs themselves are in very bad repair. . . .You have to be aware of it. It’s not easy to walk up and down. They’re not ... uniform. ... It takes a lot of care in coming down them.” She testified there was nothing she later found out about the condition of the ramp that she did not know before she fell.

Moreover, the evidence shows without issue that, while others had traversed this ramp despite any dangerous condition it presented, no other persons had fallen or made a complaint. Compare Cheney v. Fulton-DeKalb Hosp. Auth., 198 Ga. App. 620 (402 SE2d 294). Everyone knows that any wet surface may be slippery. Mrs. Patterson had slipped on the ramp when it was dry. She had knowledge of its danger equal and perhaps superior to appellee’s, and she fell either because she was hurrying or because she chose to negotiate the ramp despite danger which was obvious to her.

The mere fact that a dangerous condition exists, whether caused by a building code violation or otherwise, does not impose liability on the proprietor. For a plaintiff to recover for injury from a fall, two elements must exist: (1) fault on the part of the owner, and (2) ignorance of the danger on the part of the invitee. White v. Fred F. French Mgmt. Co., 177 Ga. App. 661 (340 SE2d 276). The basis of the proprietor’s liability is his superior knowledge; if his invitee knows of the hazard, there is no duty to warn her, and no liability for injury because the invitee has as much knowledge as the proprietor and by voluntarily acting despite her knowledge, she assumes risks and dangers incident to the known condition. Id.; Westall v. M & M Supermarkets, 174 Ga. App. 155 (329 SE2d 237). The evidence shows undisputedly that Mrs. Patterson was aware that a hazard existed; if the hazard was such that it could not safely be traversed, she should have exercised ordinary care to avoid it.

It is when the perilous instrumentality is known to the owner and not known to the person injured that a recovery is permitted. Harris v. Star Svc. &c. Co., 170 Ga. App. 816, 817 (318 SE2d 239). Even where a proprietor acts negligently, to recover for a slip and fall resulting from a foreign substance, “such as water on a ramp” (Brownlow v. Six Flags Over Ga., 172 Ga. App. 242, 243 (322 SE2d 548)), not only must the plaintiff show the defendant had knowledge of the foreign substance, but the plaintiff must show she was without knowledge of it. She must exercise ordinary care for her own safety to avoid the effect of the proprietor’s negligence after it becomes apparent to her or in the exercise of ordinary care she should have learned of it. She must make use of all her senses “in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt” to her. (Emphasis supplied.) Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327). Where the proprietor’s negligence creates a “particular hazard” greater than that normally caused by rain water, the plaintiff’s equal or superior knowledge of the hazard will prevent recovery. See Flood v. Camp Oil Co., 201 Ga. App. 451, 452 (411 SE2d 348). Mrs. Patterson’s deposition leaves no doubt that she had previously fallen on the ramp and knew it to be hazardous in a dry state; her knowledge that the hazard would increase when the ramp was wet was plainly, palpably, and indisputably equal to that of the appellee. Id. at 452.

Decided January 25, 1994.

Saliba, Edwards & Moore, William E. Moore, Jr., for appellants.

John T. Croley, Jr., for appellee.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


author: Blackburn, Judge.

text:
    A94A0249.
    PLATT v. THE STATE.
    (440 SE2d 495)
   Blackburn, Judge.

The appellant, Jerry Platt, was charged with the sale of cocaine in violation of the Georgia Controlled Substances Act. Following a trial by jury, he was convicted of the offense and sentenced to life imprisonment. Platt subsequently filed a motion for new trial, and the motion was denied by the trial court. This appeal followed. In his sole enumeration of error, Platt asserts that the evidence produced at trial was insufficient to warrant a conviction and insufficient to disprove his alibi defense beyond a reasonable doubt.

The evidence viewed in the light most favorable to the jury’s verdict shows that at approximately 2:30 p.m. on April 16, 1991, during an undercover narcotics investigation, Special Agent Boyd of the Georgia Bureau of Investigation and a confidential informant were signaled by Platt to stop the vehicle that had been driven by Boyd. Platt approached the vehicle and asked the informant if he needed “anything,” referring to crack cocaine. When the agent asked Platt if he had anything, Platt responded that he did, but he did not want to make a deal at that location. The agent asked Platt to enter the vehicle, and the three traveled to another location within the county. Thereafter, while standing near an abandoned house, Platt displayed approximately 45 pieces of crack cocaine in his hand, and asked the agent what he wanted to buy. The agent indicated that he wanted $100 worth of cocaine and he was instructed by Platt to choose the pieces that he wanted. The agent selected two of the larger pieces of crack cocaine, handed Platt $100 in State funds, and left the scene. The substance was subsequently identified by a forensic chemist with the State’s crime laboratory as crack cocaine.

Platt maintained at trial, and in a statement made to the agent on April 8, 1992, that he did not sell any cocaine to the agent on the day in question. During his testimony, he stated that he was not in the county on April 16, 1991, and had been living with an uncle in Screven County. He specifically recalled being in Screven County on April 16,1991, because he assisted in the preparation of the food for a barbecue held for his niece on that date. However, he admitted that he did not remember the name of his niece. He further testified on direct that he was convicted of two prior sales of cocaine, possession of cocaine, possession of a firearm during the commission of a felony and possession of a firearm by a convicted felon in 1987, although he denied committing all of the offenses.

To rebut Platt’s alibi defense, the State presented the testimony of another agent who had been working with Boyd during the undercover investigation. The agent was familiar with Platt and saw him approach the vehicle and subsequently enter the vehicle on April 16, 1991.

On appeal of a criminal conviction, the “appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]” Williams v. State, 208 Ga. App. 12, 14 (430 SE2d 157) (1993). The jury is the arbiter of all conflicts in the evidence, and “[h]aving resolved such issues against the defendant, if there is evidence to support the verdict, the trial court does not err in rendering final judgment on the verdict. [Cit.]” Turner v. State, 210 Ga. App. 328, 329 (1) (436 SE2d 66) (1993). In the case sub judice, although Platt maintains that he was not present at the scene at the time of the cocaine sale, the jury, as it was authorized to do, chose to believe the State’s witnesses rather than Platt on his alibi defense. See English v. State, 205 Ga. App. 599 (2) (422 SE2d 924) (1992). “The agent[s] positively identified [Platt] as the perpetrator of the crime charged.” Turner, supra at 329. Viewing the evidence in the light most favorable to the jury’s verdict, we must conclude that the evidence produced at trial was sufficient to authorize a rational trier of fact to find Platt guilty of the sale of cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Stevens v. State, 210 Ga. App. 355 (1) (436 SE2d 82) (1993); Russell v. State, 207 Ga. App. 136 (427 SE2d 106) (1993); Adams v. State, 207 Ga. App. 119 (427 SE2d 90) (1993).

Decided January 25, 1994.

Joel E. Williams, Jr., for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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

       The trial court indicated that Platt’s life sentence would run concurrent with any sentence that he was serving for prior offenses that he had committed.

       On the day of trial, the State provided Platt with notice that it intended to introduce evidence of these prior convictions during the sentencing phase of the trial. The defendant objected to the introduction of this evidence before the jury during the trial of the case based upon its irrelevancy to the issues for the jury’s determination, and over this objection, the trial court admitted this evidence to show Platt’s state of mind at the time of the April 16, 1991, transaction. Platt does not challenge the admission of this evidence during the sentencing portion of the trial.


text:
    A93A1725.
    McQUAIG et al. v. McLAUGHLIN et al.
    (440 SE2d 499)
   Smith, Judge.

Sandy McQuaig (hereinafter “McQuaig”) and her husband brought this medical malpractice action against Dr. William McLaughlin, his professional corporation, and Satilla Health Services, which operates Memorial Hospital in Waycross. The McQuaigs alleged that professional negligence on the part of the doctor and the hospital’s nurses in caring for McQuaig after she gave birth at Memorial Hospital resulted in medical problems which later required exploratory surgery and, eventually, a hysterectomy. Following the presentation of the plaintiffs’ case, the defendants moved for a directed verdict, which was granted by the trial court as to all defendants.

The evidence presented at trial showed that McLaughlin was Mc-Quaig’s obstetrician during her pregnancy and provided care during her unremarkable prenatal course. She was admitted to Memorial Hospital in labor on Saturday, May 6, 1989, when McLaughlin was not on call. Dr. Malmborg, who was covering for McLaughlin, delivered a girl in the early morning hours of May 7, 1989. The hospital records reveal no complications during the delivery, and show that Malmborg delivered the placenta intact and did an intrauterine manual examination while McQuaig was still under anesthesia to confirm the absence in the uterus of any retained placental tissue. Evidence was also presented showing that during McQuaig’s immediate postpartum course, her hematocrit dropped approximately 15 points, she was bleeding heavily, her pulse rate increased, and her blood pressure dropped. Despite standing doctors’ orders that they were to notify the doctor of such changes in vital signs and any excessive bleeding, it is undisputed that the nurses did not notify either Malmborg or McLaughlin.

McLaughlin took over McQuaig’s care on Monday morning, May 8, 1989, seeing her in her hospital room and reviewing her chart. He discharged her to return home on May 9, 1989, without ordering a repeat hematocrit. McQuaig continued bleeding. Two days later she returned to Dr. McLaughlin, feeling weak. Her hematocrit on that day, May 11, 1989, had further dropped to 21, substantially below normal. McLaughlin readmitted McQuaig to Memorial Hospital and ordered oxytocic drugs to contract the uterus and a transfusion of two units of packed blood cells. The bleeding improved, and McQuaig was discharged the next day. She did not return to see McLaughlin until her six-week checkup, on June 9, 1989.

In the interim, however, still feeling weak, bleeding, and passing clots, she called McLaughlin, who told her that her symptoms could be normal in some patients, that he believed the problem might be hormonal, and that she should take two birth control pills. On the advice of family members, she then made an appointment with another obstetrician/gynecologist, Dr. Swindle, in Valdosta. She first saw Swindle on May 16, 1989. Her hematocrit at that time was 36, which was within normal limits. Swindle performed a pelvic examination, and he made a provisional diagnosis of postpartum bleeding of questionable etiology and probable endometritis, an infection of the lining of the uterus. On May 24, 1989, he saw her again, with no remarkable findings. He next saw her on June 12, 1989, when she had increased bleeding, a watery discharge, and pain. A culture showed she had an infection of the genital tract, which was treated with antibiotics. On June 14, 1989, Swindle saw her in the emergency room, with continued bleeding and sudden onset of heavy bleeding and passing tissue. He performed a dilatation and curettage, and the pathology report on the removed tissue identified it as necrotic retained placenta, or products of conception. On July 12, 1989, McQuaig was still feeling unwell, with pain and a vaginal discharge. Swindle diagnosed another infection and again treated McQuaig with antibiotics.

Dr. Surrendar Kumar, an obstetrician/gynecologist who treated McQuaig subsequently, provided expert testimony by deposition on behalf of the McQuaigs. He testified that he treated McQuaig for pelvic inflammatory disease, prescribing antibiotics and later performing surgery. He did laser laparoscopy in 1991, and ultimately in 1992, it was necessary to remove McQuaig’s uterus and one ovary.

1. Three essential elements must be proved in order to impose liability for medical malpractice: (1) the duty inherent in a professional-patient relationship; (2) breach of that duty by deviating from the appropriate standard of care; and (3) a showing that the failure to exercise the requisite degree of skill is the proximate cause of the injury sustained. Goggin v. Goldman, 209 Ga. App. 251, 252 (433 SE2d 85) (1993). The defendants’ motion for directed verdict was made and granted on the ground that the McQuaigs had failed to show that any alleged negligence on the part of McLaughlin or the nurses was the proximate cause of her subsequent injury. The McQuaigs contend this ruling was erroneous because Kumar’s expert testimony did, indeed, provide evidence of proximate causation.

(a) It is undisputed that a doctor-patient relationship existed between McLaughlin and McQuaig, and he therefore had a duty to treat McQuaig according to the appropriate standard of care.

All the testifying experts agreed that when faced with postpartum bleeding, a differential diagnosis to rule out its various possible causes would include uterine atony (the loss of muscle tone in the uterus), retained products of conception, vaginal tears, and infection. McLaughlin stated at trial that it was his current belief that Mc-Quaig’s bleeding had been within normal limits. He also testified that despite thinking immediately after the delivery that her uterus was firm, he had treated her for uterine atony, which he admitted was inconsistent with a firm uterus. He also acknowledged that he never correctly diagnosed that McQuaig had retained products of conception.

Kumar testified by deposition that he had reviewed the medical records from Memorial Hospital, some prior medical records, and those from Drs. McLaughlin and Swindle. Based on his review of those records and his own examination and treatment of McQuaig, it was his opinion that McLaughlin’s treatment of McQuaig had deviated in several respects from the standard of care exercised by physicians in general. Although conceding that retained placenta is a recognized complication following delivery, Kumar enumerated specific diagnostic procedures that in his opinion McLaughlin should have performed. These, he said, would have narrowed the differential diagnosis and would have revealed the true cause of McQuaig’s postpartum bleeding significantly earlier, instead of merely slowing the bleeding. These included repeating McQuaig’s hematocrit test before discharging McQuaig after her first hospitalization; performing a pelvic examination on May 11, 1989, when McQuaig returned to him following discharge; and doing cultures to determine if infection was present, or using ultrasound to determine if any tissue had been retained in the uterus. According to Kumar, these procedures would have allowed the doctor to rule out other possible diagnoses and to treat McQuaig properly for the actual problem. This testimony served to provide evidence of the second required element, professional negligence.

Kumar testified that in his opinion, McLaughlin should have made the diagnosis of retained products of conception and performed a D&C to remove those products “absolutely no later than May the 11th, ‘89.” In his opinion, the delay in properly diagnosing the cause of McQuaig’s bleeding resulted first in bleeding and then in severe infection, because the retained placenta, having inadequate blood supply, degenerated, rendering it an excellent culture medium for harmful bacteria. He testified that although the necrotic tissue was eventually removed by Swindle and McQuaig was treated with antibiotics, the severe infection by that time had spread deep into Mc-Quaig’s body and caused pain and scarring that eventually necessitated a hysterectomy. Swindle did not see McQuaig until damage had already been done. Contrary to appellees’ argument, Kumar’s opinion that Swindle’s treatment was unobjectionable is not inconsistent with his opinion that McLaughlin’s treatment deviated from the appropriate standard of care.

In view of this explicit expert testimony regarding the cause of McQuaig’s medical problems, we cannot agree with the trial court’s conclusion that the plaintiffs failed to show that McLaughlin’s alleged professional negligence was the proximate cause of McQuaig’s injury. Neither professional negligence nor proximate causation was proved conclusively, since the defense expert disagreed with Kumar as to both negligence and proximate causation. The evidence on both issues was in conflict, leaving the determination of which expert to believe as to both elements in the realm of the jury. See generally Atlanta Ob. & Gyn. Group v. Coleman, 260 Ga. 569, 570 (398 SE2d 16) (1990). A motion for directed verdict may be granted only if there is no conflict in the evidence as to any material issue and the evidence introduced with all reasonable deductions therefrom, demands a verdict for the movant. OCGA § 9-11-50. Since there was conflicting evidence as to at least two material issues, the trial court’s grant of the motion for directed verdict as to defendant McLaughlin was erroneous and must be reversed.

(b) As to the hospital nurses, plaintiff’s expert, Nurse Beverly Yeshion, testified to numerous instances in which, in her opinion, the standard of care had not been met because the nurses disregarded standing orders to report to the physician certain fluctuations in vital signs and bleeding. However, unlike Kumar, Yeshion did not offer an opinion whether the deviations from the standard of professional care proximately caused McQuaig’s injuries.

Moreover, even assuming, as urged by the McQuaigs, that circumstantial evidence, rather than expert evidence, may be considered as to the element of proximate causation, the alleged negligence was the nurses’ failure to report early signs and symptoms to McLaughlin, and it is undisputed that McLaughlin was fully aware of the unreported signs and symptoms by May 8, 1989 and still failed to act in the manner appellants allege was professionally adequate. “ ‘It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent. . . act, (or omission) of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury. (Cits.) While the question of proximate cause is usually submitted to the jury as a question of fact, it may be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion, that the defendant’s (alleged omissions) were not the proximate cause of the injury. (Cits.)’ [Cit.]” Powell v. Harsco Corp., 209 Ga. App. 348, 350-351 (2) (433 SE2d 608) (1993). Since McLaughlin’s alleged intervening negligence, and not the alleged prior negligence of the nurses, was alleged to be the proximate cause of McQuaig’s injuries, it follows that the trial court properly granted the motion for directed verdict as to the hospital.

2. Since a new trial must be held, we address those remaining enumerations of error which may recur upon retrial.

The McQuaigs contend the trial court’s ruling preventing them from introducing evidence regarding McQuaig’s fear of contracting AIDS from the transfusion was erroneous, since anxiety and worry are legitimate components of pain and suffering. See generally Williams v. Vinson, 104 Ga. App. 886, 892-893 (6) (123 SE2d 281) (1961). We do not agree.

The trial court ruled that fear of AIDS was “mere speculation. It’s a possibility. You can’t . . . bring up all these possibilities that may or may not occur.” Where a claim is based on negligence, the general rule is that damages for mental distress may not be recovered absent physical injury. Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga. 149, 150 (311 SE2d 818) (1984). Although plaintiffs claim the transfusion was unnecessary, they assert neither that the transfusion was in itself a cognizable injury nor that such an injury resulted from it. Therefore, damages are not recoverable for any mental distress associated with the transfusion. The trial court correctly granted the defendants’ motion to exclude evidence of this fear.

3. The appropriate standard of care in medical malpractice cases is the standard of care exercised in the medical profession generally rather than a local standard. McDaniel v. Hendrix, 260 Ga. 857, 858 (401 SE2d 260) (1991). It therefore follows that it would have been irrelevant and improper for the plaintiffs to question Dr. Malmborg as to what action he would have taken had he been caring for McQuaig. The trial court correctly ruled this evidence inadmissible.

4. The McQuaigs’ contention that the trial court erroneously ruled that they could not cross-examine defense expert witness Dr. Meguiar regarding the fact that he had been retained by the defendants’ insurer as well as being their insured is controlled adversely to them by this court’s holding in Thomas v. Newnan Hosp., 185 Ga. App. 764, 766-767 (1) (365 SE2d 859) (1988).

Judgment affirmed in part and reversed in part.

Beasley, P. J., and Cooper, J., concur.

Decided January 26, 1994.

Sutton & Associates, Berrien L. Sutton, Hallman & Stewart, Ronald W. Hallman, for appellants.

Dillard, Bower & East, Terry A. Dillard, Bryant H. Bower, Jr., for appellees.


text:
    A93A1751.
    PORADO v. THE STATE.
    (440 SE2d 690)
   Smith, Judge.

Mark Stephen Porado was indicted by the White County grand jury on two “bad check” counts (issuance of bad checks, OCGA § 16-9-20 (a)). He was convicted on Count 1 and acquitted on Count 2. He appeals the denial of his motion for new trial.

1. Porado contends that the trial court erred in failing to grant his motion for a directed verdict of acquittal because the State failed to prove Porado’s knowledge that the check in question would not be honored by his bank. This enumeration is without merit.

The relevant portion of OCGA § 16-9-20 (a) provides: “[I]t is prima-facie evidence that the accused knew that the instrument would not be honored if . . . (2) Payment was refused by the drawee for lack of funds . . . and the accused or someone for him shall not have tendered the holder thereof the amount due thereon, together with a service charge, within ten days after receiving written notice that payment was refused upon such instrument.” The statute further provides that notice by registered or certified mail evidenced by return receipt shall be deemed sufficient and equivalent to notice having been received as of the date on the return receipt. OCGA § 16-9-20 (a) (2) (A).

The evidence at trial showed that Porado was the owner and operator of a grocery that sold gasoline. He purchased gasoline from P & B Petroleum, a supplier owned and operated by complaining witness Black, paying with two checks that were returned for insufficient funds. Porado was convicted with respect to the first check, in the amount of $4,446.42, which was dated July 24, 1991 and returned for insufficient funds on July 31, 1991. With respect to this check, Black testified that his business sent a standard ten-day demand letter by certified mail as required by OCGA § 16-9-20 (a) (2) (A). He identified a form letter as identical to the one sent to Porado. Black also identified a photocopy of a certified mail return receipt sent to Porado. He testified that it was identical to the original, that the copy was made in the ordinary course of business, and that the magistrate’s court had retained the original return receipt. Porado testified that he recalled receiving a notice, although he did not recall the check to which it referred. However, he acknowledged that his signature appeared on the photocopy of the return receipt identified by Black as the receipt for the ten-day demand letter for the July 24 check. Black further testified that he telephoned Porado and spoke with him about the July 24 check. Porado acknowledged that this telephone conversation took place. Porado did not tender the amount due on the check to Black within ten days.

Porado apparently contends that a directed verdict was appropriate because the trial court admitted the photocopy of the receipt over his objection that it was not the highest and best evidence. Under Georgia law, however, the method of notice prescribed by OCGA § 16-9-20 (a) (2) (A) is evidentiary and not an element of the offense of issuing bad checks. See Russell v. State, 155 Ga. App. 555 (1) (271 SE2d 689) (1980). Moreover, Black testified that the photocopy was identical to the original and that it was made in the ordinary course of business. He also accounted for the whereabouts of the original. See OCGA § 24-5-26; Shivers v. State, 188 Ga. App. 744, 745 (2) (374 SE2d 233) (1988) (physical precedent). Porado identified his signature from the photocopy. There was enough evidence from which a rational trier of fact could conclude that the prima facie showing under OCGA § 16-9-20 (a) (2) (A) was satisfied. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Porado also enumerates as error the general grounds on the overruling of his motion for new trial, contending that the check in question was not given for a present consideration. The evidence showed that Porado and Black had an arrangement under which Black’s driver would visit Porado’s store on a weekly basis, measure the fuel which had been sold to the public in the preceding week, and present an invoice to Porado for the amount of fuel sold. At that time, Porado would deduct a three cents per gallon commission and give the driver the balance. At the end of each month, Porado and Black would split any profits equally between them.

Porado relies on Griffith v. State, 249 Ga. 19 (287 SE2d 187) (1982) in support of his contention that the gasoline sold to the public during the previous week did not constitute “present consideration” as required by OCGA § 16-9-20 (a). In Griffith, a gasoline supplier drew up invoices upon delivery of gasoline, with “an understanding that a check would be issued at an unfixed future date.” Id. at 21. The Supreme Court held that this did not satisfy the requirement of present consideration — that is, that a check be contemporaneously exchanged for something of value. Id. at 20-21.

The State argues that the requirement of present consideration or a contemporaneous transaction is satisfied by a regular business practice of paying at the end of each week for gasoline purchased by retail customers during the preceding week. See, e.g., Hutto v. State, 198 Ga. App. 325, 327 (1) (401 SE2d 339) (1991). Under the circumstances presented here, we agree. Until the amount of gasoline consumed was measured, the commission calculated, and the invoice presented, at the time of Porado’s writing the check, the transaction had not been completed. Moreover, the three cents per gallon commission deducted by Porado at the time of writing the check constituted present consideration. At the time of the presentation of the invoice and Porado’s presentation of the check, P & B Petroleum gave up something of value, the amount of the commission, in reliance on the check. The evidence was sufficient under Jackson v. Virginia to enable a rational trier of fact to find the elements of issuing a bad check, including present consideration. See Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984). The trial court did not err in denying Porado’s motion for new trial on this ground.

Decided January 26, 1994.

T. Jefferson Moore, Jr., for appellant.

C. David Turk III, District Attorney, Donald E. Henderson, As sistant District Attorney, for appellee.

3. In his final enumeration of error, Porado contends that the trial court erroneously ordered restitution of funds from the August 2 check, as to which he was acquitted. In support of this contention he asserts that the amount of restitution, $3,643.50, was calculated by subtracting from both checks the amount of credits made in Porado’s ledger since the date of the first check.

However, Porado points to nothing in the record to support his contention as to the source or amount of the charge-back. The ledger was not introduced into evidence, and there was no evidence at the sentencing hearing as to the amount of the charge-back or the amount applied to a particular check. As noted by the State, the amount is less than the face amount of the check as to which Porado was found guilty. The only point raised by Porado on the issue of restitution was whether the amount of the check had been discharged in bankruptcy. This enumeration of error provides nothing for review by this court. “Not only is this contention not supported by the record, this issue is raised for the first time on appeal. ‘This court cannot consider matters raised for the first time on appeal, [cit.] nor can we consider factual representations in a brief which are not supported by the transcript. [Cit.]’ [Cit.]” Denton v. State, 186 Ga. App. 864, 865 (3) (368 SE2d 811) (1988).

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A1819.
    STANGE v. COX ENTERPRISES, INC.
    (440 SE2d 503)
   Smith, Judge.

This action arises out of the October 1990 publication of two newspaper articles and an editorial by defendant Cox discussing Stange’s involvement in several real estate transactions before his appointment as acting Housing Commissioner for the City of Atlanta. In October 1991, Stange demanded a correction and retraction and brought this action seeking damages for “false and malicious defamations.” After the close of discovery, Cox’s motion for summary judgment was granted by the trial court. Without reaching the other defenses asserted by Cox, the trial court granted Cox’s motion for summary judgment on the basis that Stange had failed to establish “by clear and convincing evidence actual malice on the part of defendant in publishing the statements.” This appeal follows.

The first article, by staff writer Mark Sherman, appeared on October 12, 1990 under the headline “Atlanta housing official preyed on us, poor homeowners charge.” The article described three instances in which Stange purchased homes, in his own name or as agent for his sister and brother-in-law, from owners facing financial trouble. Sherman’s article reported that Stange purchased the homes for little or no cash and the mortgage arrearage, then rented the houses back to the former owners at rents that were 75 to 180 percent higher than the monthly mortgage payments. In one case, Sherman reported, the former owners were evicted for nonpayment of rent, and they later filed a civil action alleging that Stange deceived them into signing a deed when they believed that they were obtaining a loan. The article also stated that another homeowner believed until closing that he was getting a loan.

The editorial at issue appeared in The Atlanta Journal on October 15, 1990, under the headline “Keep foxes out of henhouse.” Noting the case of a former housing commissioner who pled guilty to criminal charges arising out of gouging tenants while he was serving as commissioner, the editorial observed that “[t]he city apparently did not learn its lesson” and that the acting housing commissioner, Stange, “now faces charges of profiting off homeowners facing foreclosures.” It went on to note that according to three former homeowners Stange posed as a lender, then bought their homes at “bargain prices” and “rented them back at exorbitant rates.”

The second article, also by Mark Sherman, appeared on October 16, 1990. The article headlined the appointment of the new housing commissioner and city attorney but discussed Stange in its final paragraphs. Sherman reported that before joining the city administration, Stange bought dozens of properties at bargain prices, often from homeowners in financial distress, and in at least three cases allowed former homeowners to remain “with hefty rent increases.” The article added that in two cases the homeowners said Stange had deceived them into selling their homes when they believed they were obtaining loans.

1. Stange first contends that the trial court impermissibly shifted the burden of proof in ruling upon Cox’s motion for summary judgment. This contention has no merit. On summary judgment, a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. The nonmoving party cannot then rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

This rule has equal force in defamation cases. See Speedway Grading Corp. v. Gardner, 206 Ga. App. 439, 441 (1) (425 SE2d 676) (1992). As discussed in Division 2, infra, Cox relied upon the affidavits of its employees, the depositions of its employees and Stange, and the parties’ responses to discovery to point out an absence of evidence of falsity, knowledge of falsity, or actual malice. This showing was more than adequate to shift the burden to Stange to come forward with clear and convincing evidence that the statements were false and, if false, were made with actual malice. See Murray v. Williams, 166 Ga. App. 865 (305 SE2d 502) (1983). The trial court did not err in its application of the burden of proof on summary judgment.

2. Stange has not enumerated as error the determination of the trial court that he is a “public official,” and acknowledges his status as a public official in his brief. Accordingly, he is subject to the standard of New York Times Co. v. Sullivan, 376 U. S. 254 (84 SC 710, 11 LE2d 686) (1964). In order to recover damages for defamation as a public official Stange must demonstrate that the statements complained of were made with “actual malice” — that is, with knowledge that they were false or with reckless disregard for their truth or falsity. Id. at 279-280; Harte-Hanks Communications v. Connaughton, 491 U. S. 657, 667 (109 SC 2678, 105 LE2d 562) (1989). The “reckless disregard” necessary to show actual malice “is not measured by whether a reasonably prudent man would have published or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U. S. 727, 731 (88 SC 1323, 20 LE2d 262) (1968). The Court went on to observe that this admittedly high standard of proof may protect some erroneous or false communications, but is required because “the stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self-censorship and thus adequately implement First Amendment policies.” Id. at 731-732.

The public official in a defamation action must show actual malice with “convincing clarity.” New York Times Co. v. Sullivan, supra, 376 U. S. at 285-286. The requirement of clear and convincing evidence of actual malice is equally applicable in ruling upon a motion for summary judgment. Anderson v. Liberty Lobby, 477 U. S. 242, 254-257 (106 SC 2505, 91 LE2d 202) (1986). See generally Brewer v. Rogers, 211 Ga. App. 343 (439 SE2d 77) (1993).

In his brief and two supplemental briefs, Stange contends that there is evidence in the record of actual malice on the part of Cox and its employees. In essence, Stange contends that Sherman and the editorial writer failed adequately to investigate the story. He points to testimony that Cox does not employ “fact checkers” on its stories, that the editorial was not independently investigated before publication, and that Sherman destroyed his notes and tape recordings of his interviews in the year intervening between the story and Stange’s demand for a retraction. Stange also contends that Sherman knew certain statements in the articles were false because Stange provided him with copies of closing documents.

These contentions do not rise to the level of a clear and convincing showing of actual malice. “Failure to investigate does not in itself establish bad faith,” St. Amant v. Thompson, supra, 390 U. S. at 733, citing New York Times Co. v. Sullivan, supra, 376 U. S. at 287-288, even if a reasonably prudent person would have investigated. Harte-Hanks Communications v. Connaughton, supra, 491 U. S. at 688. The editorial’s reliance on Sherman’s investigation accordingly does not demonstrate bad faith or actual malice.

Moreover, the record shows that Sherman undertook substantial investigation. He reviewed court records of pleadings, deeds, and dispossessory notices in the Fulton and DeKalb County courthouses, and he interviewed one homeowner in person. While Sherman did not personally interview all the homeowners, he did interview in each case a person with knowledge, such as an attorney or a relative residing with the homeowner. Sherman testified that the facts uncovered in his investigation were consistent with the statements made in the articles.

While a failure to investigate alone does not establish malice, the investigation which Sherman undertook tends to corroborate his assertion of good faith and belief in the truth of the published statements. Stange has not shown that Sherman’s investigation uncovered facts that created a high degree of awareness of probable falsity or caused him to entertain serious doubts as to the truth of his publication. Harte-Hanks Communications v. Connaughton, supra, 491 U. S. at 667.

Although the closing documents show that the three transactions were sales, these documents are not evidence of actual malice on the part of Cox, or even of falsity, because they do not address the statement in the article that two homeowners believed until closing that they were obtaining loans. Sherman testified that this statement was supported by the pleadings filed in the civil action by one homeowner, and by his interview with the second homeowner. Stange has not presented evidence showing awareness of probable falsity of these statements on Cox’s part.

With respect to Sherman’s destruction of his interview notes and tapes, Sherman testified that he routinely destroyed notes and tapes within a month or two after publication of the story in question, except notes for ongoing stories. Stange did not make his complaints known to Cox until approximately one year from publication of the articles and editorial. Stange presents no evidence that the destruction of notes was anything other than a routine practice, and he cites no authority for the proposition that the routine, prelitigation destruction of notes is evidence of actual malice. Compare Brown & Williamson Tobacco Corp. v. Jacobson, 827 F2d 1119, 1134 (7th Cir. 1987) (selective destruction of pertinent notes after litigation commenced).

The cases cited by Stange to support his contention that Cox’s employees acted with actual malice involve facts and circumstances which are absent from this case. For example, in Barber v. Perdue, 194 Ga. App. 287 (390 SE2d 234) (1989), evidence in the record showed that the statements in a personal letter written by the defendant were false, that the defendant admitted he had reviewed files containing material that cast serious doubts on the truth of those statements, that he instructed an assistant to conduct only a limited investigation of the facts, and that he sent the letter to public officials in an effort to discredit the plaintiff during an election campaign. In contrast, the facts here do not evince “an intent to avoid the truth.” Harte-Hanks Communications v. Connaughton, supra, 491 U. S. at 692-693.

Stange also complains that the editorial contained a contention by three former homeowners that Stange had “posed as a lender,” while the articles stated that one had made that allegation in a civil action while one contended that he “felt deceived.” He also complained that the editorial stated that “at least one former homeowner is suing,” without making it clear that his sister and brother-in-law, rather than Stange himself, were defendants in that suit. However, Stange acknowledged on his deposition that the statements made in the articles and editorial were in large part accurate.

Decided January 26, 1994.

J. Hue Henry, for appellant.

Dow, Lohnes & Albertson, Peter C. Canfield, Jeffrey C. Levy, for appellee.

Even assuming that Stange’s complaints have some technical merit, in the context of the editorial, the omission of an explicit explanation of the parties to the civil action and the variance in the number of owners who alleged or stated that they were deceived are minor factual errors which do not go to “ ‘the substance, the gist, the sting’ ” of the story. Masson v. New Yorker Magazine, 501 U. S. _ (111 SC 2419, 115 LE2d 447, 472) (1991). Moreover, with respect to a public official, even a false or erroneous publication must have been made with actual malice. Stange has not presented clear and convincing evidence that Dickerson’s numerical error or his failure to state that Stange was not a party to the civil action was made with actual malice. Cox promptly corrected the error when it was pointed out, approximately one year after publication. Stange contends, without citation to supporting legal authority, that Cox’s publication of a correction constitutes evidence of actual malice. This contention has no merit. See, e.g., OCGA § 51-5-11.

“Not only has [Stange] presented no evidence tending to controvert these averments, his own deposition testimony tends to support them .... Under the circumstances, even assuming [for the sake of argument] that the article contained any statements which might otherwise be considered defamatory, the trial court correctly concluded as a matter of law that the defendant had neither believed they were untrue before publishing them nor entertained serious doubts about their accuracy. It follows that the court did not err in granting the defendant’s motion for summary judgment. [Cits.]” Finkelstein v. Albany Herald Pub. Co., 195 Ga. App. 95, 98 (2) (392 SE2d 559) (1990).

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A1948.
    VICK v. THE STATE.
    (440 SE2d 508)
   Smith, Judge.

David Allen Vick, Brandon Cole Hobbs, and Shannon Douglas Leonard were indicted by the Bartow County grand jury on November 1, 1991 on one count of armed robbery. OCGA § 16-8-41 (a). Because of a name defect in the indictment, the three were reindicted on February 4, 1993. Vick’s companions pled guilty and were called as witnesses by the State, and Vick was convicted. A motion for new trial was made and denied, and he appeals.

1. Vick enumerates as error the general grounds on the overruling of his motion for new trial. On appeal, the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), applies. Viewed in the light most favorable to the verdict, Gazaway v. State, 207 Ga. App. 641, 642 (1) (428 SE2d 659) (1993), the evidence showed that Vick and his two companions escaped from the Gilmer County jail in the early morning hours of December 4, 1990 and embarked on a twenty-four hour, three-county crime spree during which they stole a vehicle, firearms, jewelry, clothes, and money to continue their escape and to obtain alcohol and drugs. By nightfall of the same day, the three discussed committing an armed robbery to get more money. They decided to rob the service station owned by Leonard’s brother-in-law and determined that Hobbs would enter the store with the stolen shotgun while Leonard and Vick remained in the stolen truck. Vick was present in the truck while Hobbs entered the service station and robbed the owner of over $500. There was evidence that Vick threatened Leonard when he became afraid and attempted to leave the truck. Shortly thereafter, their stolen truck was pulled over by officers of the Kennesaw police department. Vick’s companions were arrested, while Vick fled the scene and was captured about an hour later.

Vick complains that the elements of armed robbery were not proved as to him, both because he did not actively participate as either the driver or the gunman and because he was too intoxicated to appreciate what had occurred until after the robbery was complete. While mere presence at the scene of a crime does not support a conviction, “ ‘ “presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.’” [Cit.]” Kimbro v. State, 152 Ga. App. 893, 894 (264 SE2d 327) (1980). There was evidence that Vick shared in the proceeds of the various crimes perpetrated by the trio, including those of the robbery, that he participated in planning the armed robbery, and that he was sufficiently sober both to discuss those plans and to elude the police for almost an hour after his companions’ arrest. While there was conflicting evidence on some of these issues, “[i]t is the function of the jury, not the appellate court, to resolve conflicts in the testimony and determine the credibility of the witnesses. [Cits.]” Williams v. State, 195 Ga. App. 422, 423 (1) (394 SE2d 112) (1990). A rational trier of fact could reasonably find that Vick was guilty of the offense charged beyond a reasonable doubt under the standard of Jackson v. Virginia.

2. Vick complains of the admission of evidence of his escape from the Gilmer County jail. However, the escape and ensuing crime spree are part of the res gestae of the offense under consideration here. All the events that took place during the 24-hour escape were interconnected, a “continuous action,” as the trial court characterized it, springing out of the trio’s escape and the need to finance it. “It is well settled in this state that acts are pertinent as a part of the res gestae if they are done pending the hostile enterprise, and if they bear upon it, are performed whilst it is in continuous progress to its catastrophe, and are of a nature to promote or obstruct, advance or retard it, or to evince essential motive or purpose in reference to it. One of the exceptions to the rule that on prosecution for a particular crime evidence which tends to show that the defendant committed another crime wholly independent from that for which he is on trial is irrelevant and inadmissible, is where the other crime is a part of the res gestae. Therefore, a trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered by the jury will not be disturbed on appeal unless that determination is clearly erroneous.” (Citations and punctuation omitted.) Sypho v. State, 175 Ga. App. 833, 835 (3) (334 SE2d 878) (1985). The trial court did not err in admitting evidence of Vick’s escape from jail.

3. Vick also enumerates as error the trial court’s failure to grant his motion to dismiss because the State failed to afford him a speedy trial. Vick was arrested on December 5, 1990. He was originally indicted on November 1, 1991 and reindicted on February 4, 1993. The trial took place on March 29 and 30, 1993.

Vick acknowledges that his preindictment, pro se motion for a “fast and speedy” trial did not comply with the requirements for a statutory demand under OCGA § 17-7-171. See Little v. State, 188 Ga. App. 410 (1) (373 SE2d 260) (1988). We therefore need only address whether Vick’s constitutional right to a speedy trial was violated under the four-part standard of Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), considering the length of delay, the reason for delay, the defendant’s assertion of his right, and the prejudice to the defendant. See Roundtree v. State, 192 Ga. App. 803 (1) (386 SE2d 548) (1989).

(a) Approximately 28 months elapsed between Vick’s arrest and trial. However, “ ‘mere passage of time is not enough, without more, to constitute a denial of due process.’ ” Heinen v. State, 186 Ga. App. 373, 374 (367 SE2d 275) (1988) (delay of seven years and five months where witness temporarily incompetent). See also Simpson v. State, 150 Ga. App. 814, 815 (1) (258 SE2d 634) (1979) (34 months; record silent as to reason for delay); McClanahan v. State, 196 Ga. App. 737 (2) (397 SE2d 24) (1990) (35 months).

(b) The delay apparently arose from Vick’s prior conviction and his participation in the escape from jail and subsequent crime spree, rather than from any deliberate attempt by the State to delay his trial. At the time of the escape from the Gilmer County jail, Vick was confined on a bench warrant from the City of Ellijay for “back fines.” He was also on probation from a 1984 burglary conviction. After his apprehension following the escape, a revocation hearing was held on January 2, 1991 as to Vick and one of his companions, and their probation was revoked. Vick was then remanded to the state correctional system. Additionally, Vick and his companions faced multiple charges in Gilmer and Cobb counties arising from the escape, the burglary, the auto theft, and theft of gasoline, as well as the charges for which they were confined to the jail at the time of their escape. While acknowledging the passage of time between Vick’s arrest and trial, the State contends that the delay was due to the logistical difficulties created by multiple criminal charges against three individuals in three jurisdictions, probation revocation and re-confinement in state prison, and reindictment. Vick has presented no evidence that “there was a deliberate delay for the purpose of hampering the defense.” Heinen v. State, supra, 186 Ga. App. at 374-375.

(c) The State acknowledges that Vick filed his pro se motion for a speedy trial approximately six months after his arrest, and thus asserted his right.

(d) The fourth Barker factor includes three elements: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker, supra, 407 U. S. at 532. At the time of his motion for a speedy trial, Vick was already confined in state prison on an unrelated charge, and was facing numerous other charges arising out of his escape and the ensuing crime spree. He has made no showing of any isolated or distinct oppressiveness, anxiety, or concern he may have suffered regarding this specific charge. See Glidewell v. State, 169 Ga. App. 858, 861 (2) (314 SE2d 924) (1984). Moreover, he has not shown any prejudice to his defense by the delay. He has not shown that any witnesses were unavailable or any evidence missing. In fact, he articulates no specific instance of prejudice, contending merely that the delay was per se prejudicial and that he may have been denied the benefit of exculpatory or mitigating evidence or testimony which may have become distorted over time. “ ‘There must be more than a mere claim of prejudice; it must be shown, and this the accused did not do.’ [Cit.]” Heinen v. State, supra, 186 Ga. App. at 375-376.

Considering all these factors, the trial court did not abuse its discretion in refusing to dismiss the indictment.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

Decided January 26, 1994.

Lanser, Levinson & Paul, Christopher G. Paul, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.


author: Cooper, Judge.

text:
    A93A2001.
    ELAM v. THE STATE.
    (440 SE2d 511)
   Cooper, Judge.

Appellant was convicted of possession with intent to distribute cocaine and appeals from the entry of the judgment of conviction and sentence and the denial of his motion for new trial.

1. In his first enumeration of error, appellant contends the trial court erred in admitting the cocaine into evidence without first requiring the State to show chain of custody.

An officer who observed appellant sitting on the front steps of a residence cutting up a rock of suspected crack cocaine testified that at the time of appellant’s arrest on April 23, 1992, he placed the cocaine in a plastic bag, initialed the bag and stapled it shut. The bag was then stored in a locked vault in the Toombs County Drug Task Force Office until April 28, when the officer took the bag to the forensic crime lab in Augusta. At the crime lab, the bag was labelled “A9201611.” The record shows that on May 12, the bag was sent, via United Parcel Service, from the crime lab in Augusta to the crime lab in Atlanta where it was received on May 13 by a lab technician who turned the bag over to the forensic chemist for testing. The forensic chemist testified that she inspected the stapled bag numbered A9201611 and detected no signs of tampering. She made a small slit in the bottom left corner to obtain a sample of the substance for testing and then sealed the opening with red evidence tape. After the test, the bag was kept in the chemist’s locker until she brought it to court on the day of the trial. At trial, the arresting officer inspected and identified the bag. He testified that the bag did not appear to have been tampered with and that his initials were intact. Appellant presented no evidence of tampering but argues that the State failed to establish a chain of custody because there was no evidence of who mailed the bag to the crime lab in Atlanta or whether the bag was adequately secured between April 28 and May 13.

“ ‘Where the State seeks to introduce evidence of a fungible nature, it need only show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The fact that one of the persons in control of a fungible substance does not testify at trial does not, without more, make the substance or testimony relating to it inadmissible. The trial court was authorized to conclude that the state had met its burden with respect to the establishment of the chain of custody in the present case. [Cit.]’ ” Mathis v. State, 204 Ga. App. 244 (1) (418 SE2d 800) (1992).

2. Appellant also contends the trial court erred in allowing the arresting officer to testify without requiring him to take the exact oath required to be administered to all witnesses in criminal cases under OCGA § 17-8-52. The record reflects that defense counsel objected to the three versions of the oath given to the witness by the prosecutor. The following constitutes the third oath given: “Do you swear the evidence you shall give in the case of The State of Georgia versus Jose Chico Elam, charged in Count 1 with possession of cocaine with intent to distribute and in Count 2 with possession of cocaine, shall be the truth, the whole truth, and nothing but the truth, so help you God?”

Since the oath indicated appellant’s name, the crimes charged and the fact that the testimony was being given in a trial and not a grand jury proceeding (see State v. Williams, 181 Ga. App. 204, 205 (351 SE2d 727) (1986)) and the oath was not “materially different in both form and substance [from] the prescribed statutory oath” (Kirkland v. State, 140 Ga. App. 197, 198 (1) (230 SE2d 347) (1976)), we find no error.

3. Appellant next contends the court erred in allowing the State to make three references during closing argument to appellant’s failure to take the stand and testify. The first comment was as follows: “I think the evidence is undisputed. I don’t think there’s any evidence except what the investigator told you, and that is that he saw Mr. Elam, right over here, sitting on the porch of a house with that cocaine in State’s Exhibit Number 1 between his legs with a razor blade cutting it up.” The second comment was as follows: “[T]he only evidence you heard is from Investigator Smalley, and he told you — he identified this man right over there, Mr. Elam, as the person that had this cocaine between his legs with a razor blade cutting it up.” The third comment was as follows: “The evidence is undisputed. Jose Chico Elam, sitting right over there, right over here on Clary Street in Thomson possessed that cocaine you’re looking at in that bag.”

“The defense did not object or move for a mistrial when these comments were made so that the trial court could have taken any corrective action it found necessary. ‘The time to object to improper closing argument is when the impropriety occurs at trial, when the trial judge may take remedial action to cure any possible error. When no timely objection is interposed, the test for reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of the trial.’ [Cit.] The present comments warrant no relief under this standard. Though a prosecutor may not comment on the failure of a defendant to testify, he may properly argue that the State’s evidence of guilt has not been rebutted or contradicted. [Cit.] The argument made in this case does not show a manifest intention on the part of the prosecutor to comment upon [appellant’s] failure to testify, nor were the remarks of such a character that a jury would naturally and necessarily construe them as a comment on [appellant’s] failure to testify. [Cits.]” (Indention omitted.) Wright v. State, 209 Ga. App. 128, 129-130 (3) (433 SE2d 99) (1993). This enumeration is without merit.

Decided January 26, 1994.

Dunaway & Wallace, Harold W. Wallace III, for appellant.

Dennis C. Sanders, District Attorney, for appellee.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A2053.
    O’NEAL v. THE STATE.
    (440 SE2d 513)
   Smith, Judge.

Buster O’Neal was indicted on charges of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b), possession of marijuana, OCGA § 16-13-30 (j) (1), and misdemeanor obstruction of an officer, OCGA § 16-10-24 (a). A jury acquitted him on the marijuana charge and found him guilty of the cocaine and obstruction charges. His motion for new trial was denied.

The evidence introduced at trial showed that Macon police officers received reports on a drug “hot line” that O’Neal was selling crack cocaine from a certain apartment in a housing project in Macon. In the course of investigating these reports, they set up a controlled buy in which a reliable confidential informant purchased crack cocaine from O’Neal at the project. Officer Mark Cotton testified that he then gathered several other Macon police officers, went to the project, and observed O’Neal standing in front of Building 15 engaged in what appeared to the officers to be a drug transaction with a woman later identified as Shirley Taylor. After identifying themselves as police officers, the officers ran toward O’Neal, and he fled into a nearby apartment after passing something to Taylor. Cotton and Officer Greg Stone followed O’Neal. Another officer covered the back door to the apartment, and Officer Jacquelyn Collins approached the woman.

The chase proceeded through the apartment. O’Neal ran through the living room past several occupants, down a hallway, and into the bathroom just beyond reach of Cotton’s arm. Cotton testified that as O’Neal rushed into the bathroom he knocked over a man standing in front of the toilet. Cotton saw O’Neal reach into his left front shorts pocket, pull out a plastic bag, toss it into the toilet, and attempt to flush it away. Cotton and Stone grabbed O’Neal intending to remove him from the bathroom, but O’Neal managed to break free and again flushed the toilet. The toilet overflowed, the plastic bag floated to the top, and Stone was able to reach into the toilet and remove the bag. The two officers then subdued O’Neal on the floor in the hallway and handcuffed him. As they picked him up, they found a marijuana cigarette on the floor underneath his body. The plastic bag retrieved from the toilet contained 42 small plastic packets containing crack cocaine. Cotton testified that based on his experience, the manner in which the cocaine was packaged showed that it was intended for sale as individual $20 packets. Stone’s testimony corroborated that of Cotton.

Collins testified that she found in Taylor’s hand a marijuana rolling paper in which a small amount of marijuana was balled up.

1. O’Neal contends the evidence was insufficient to support his conviction for possession of cocaine with intent to distribute. His contention is based on assertions that the officers’ testimony was inconsistent in several respects and that trial counsel successfully impeached the testimony of Cotton by demonstrating that he testified differently in several respects at a commitment hearing. We find no merit in this contention.

Inconsistencies between the testimony of witnesses are for the jury to resolve. Despite any such inconsistencies in the officers’ testimony and even assuming the successful impeachment of portions of Cotton’s testimony, the jury was nevertheless authorized to accept the officers’ testimony and to base a conviction upon it, particularly since Cotton’s testimony was completely corroborated by that of Stone. See Parker v. State, 145 Ga. App. 205, 206 (1) (243 SE2d 580) (1978). The evidence was sufficient to authorize the jury to find O’Neal guilty of possession of cocaine with intent to distribute under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) .

2. O’Neal also maintains the evidence was insufficient to support his conviction for misdemeanor obstruction of the officers. This offense is committed by “knowingly and willfully obstructing] or hinder [ing] any law enforcement officer in the lawful discharge of his official duties.” OCGA § 16-10-24 (a). Because the obstruction must be “knowing and willful,” the State was required to prove that O’Neal knew or should have known that he was being pursued by police officers. See Evans v. State, 154 Ga. App. 381-382 (1) (268 SE2d 429) (1980) . Although O’Neal testified he had no knowledge his pursuers were police officers because they never identified themselves as officers, the testimony of all three officers who testified was to the contrary. All three testified they identified themselves loudly as police officers at the beginning of the chase. It is evident that the jury believed the testimony of the officers rather than that of O’Neal. “ ‘Determining the credibility of witnesses and resolving conflicts goes to the weight of the evidence and is for the jury’s consideration. [Cit.] This court determines only the legal sufficiency of the evidence. [Cit.]’ [Cit.]” Foster v. State, 203 Ga. App. 328, 330 (416 SE2d 855) (1992).

Conviction of obstruction of an officer requires proof of forcible resistance or opposition to an officer in the performance of his duties. Whether the defendant’s actions actually hindered or impeded officers is a decision for the jury. Sapp v. State, 179 Ga. App. 614, 615 (1) (347 SE2d 354) (1986). The evidence showing O’Neal’s flight and his struggle with the officers authorized the jury to conclude that he hindered them in the performance of their duties and to find him guilty beyond a reasonable doubt of misdemeanor obstruction of the officers. See generally Cason v. State, 197 Ga. App. 308 (398 SE2d 292) (1990), overruled on other grounds Duke v. State, 205 Ga. App. 689, 690 (423 SE2d 427) (1992).

3. We find no merit in O’Neal’s assertion that the State failed to prove the chain of custody of the drugs introduced into evidence. Stone testified he retrieved the plastic bag from the toilet and handed it to Cotton. Cotton testified he collected it as evidence, tagged it, and took it to the Macon Police Department Crime Lab for safekeeping. Collins testified she removed the package, with its seal intact, from the Macon Crime Lab, took it to the State Crime Lab, and dropped it in the lock box. Kathryn Lee of the State Crime Lab testified she removed the package from the lock box at the lab and performed the analyses to which she testified. There was thus no break in the chain of custody and no indication of tampering. Notwithstanding that the officers testified they could not possibly identify the cocaine in the exhibits introduced at trial as the cocaine seized by them, evidence such as that given in this case has been held to constitute a proper chain of custody when the defendant introduces no evidence showing substitution or tampering. Shivers v. State, 188 Ga. App. 744, 745 (1) (374 SE2d 233) (1988).

4. O’Neal’s motion for new trial was based primarily on his claim of ineffective assistance of counsel, and he contends the trial court erred by ruling that his trial counsel provided effective assistance. O’Neal was required to show that trial counsel’s performance was deficient and that this deficiency prejudiced the outcome of the case. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). He was required to overcome the strong presumption that counsel’s conduct fell within the broad range of reasonable professional conduct. See Cauley v. State, 203 Ga. App. 299, 301 (2) (416 SE2d 575) (1992). At the hearing on the motion for new trial, it was shown that trial counsel, an experienced member of the bar, investigated the case, represented O’Neal at a commitment hearing, and conferred extensively with the prosecutor’s office regarding a proposed plea bargain, which O’Neal rejected. Counsel submitted requests to charge, interviewed witnesses, and provided effective trial representation that resulted in O’Neal’s acquittal on the marijuana charge. The trial court did not err in its conclusion that O’Neal failed to show that his trial counsel was ineffective under the standard enunciated in Strickland, supra.

Decided January 26, 1994.

L. Elizabeth Lane, for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.