text:
    A93A0404.
    NELSON v. THE STATE.
    (431 SE2d 450)
   Birdsong, Presiding Judge.

Malik Nelson a/k/a Todd Shaw appeals his conviction of aggravated assault upon a police officer, OCGA § 16-5-21, and possession of a firearm by a first offender, OCGA § 16-11-131, and the denial of his amended motion for new trial. Held:

1. After a man walking along the street was killed by a shotgun blast from the hatchback vehicle in which appellant and four other persons were riding, shots were fired from the rear of the hatchback striking police officer Weller’s patrol car. Although the patrol car was following without blue lights or siren engaged, it was a marked patrol car with a blue light bar. All the occupants of the hatchback had their heads turned back toward the patrol car before the shots were fired. One occupant testified he initially saw the police before pursuit began, and that he and appellant had jumped into the hatchback, which had been temporarily stopped. During pursuit the hatchback took various evasive actions, then stopped; before the officer could engage his blue lights, shots were fired by a suspect sitting in the rear of the hatchback. At least two shots struck the officer’s patrol car, which was then about fifty feet away. The evidence as to who actually discharged the firearm was in conflict; however, one of the juveniles in the hatchback (against whom charges were dismissed after he agreed to testify in the trial of appellant suspect) testified he immediately turned around after three shotgun blasts were fired and saw appellant holding the shotgun in the hatchback section of the vehicle. Another occupant testified appellant fired the shots.

Appellant contests the credibility of the State’s witnesses and the weight to be given their testimony. On appeal the evidence must be viewed in the light most favorable to support the verdict, and 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. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Mere presence at the scene of a crime does not make a person a party to that crime. Owens v. State, 204 Ga. App. 579, 581 (3) (420 SE2d 79). Nevertheless, appellant’s firing of the weapon and knowledge that the person at whom he fired was a police officer can be established by direct and/or circumstantial evidence. See OCGA § 24-1-1. Likewise, it could be established by direct and/or circumstantial evidence that appellant was a party to the crime within the meaning of OCGA § 16-2-20. “Conduct and companionship before and after the crime are circumstances from which the factfinder may infer criminal intent.” Todd v. State, 189 Ga. App. 538, 540 (376 SE2d 917). Further, all members of the group fled the scene. “Flight is circumstantial evidence of consciousness of guilt; the weight to be given such evidence is for the jury to decide.” Green v. State, 206 Ga. App. 42, 44 (3) (424 SE2d 646). Applying the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), the evidence supports the verdict.

2. Appellant’s motion to sever the offense of possession of a firearm by first offender probationer was denied. The trial court did not abuse its discretion in denying the severance motion; a bifurcated trial was not mandated. See Appling v. State, 256 Ga. 36, 37 (1) (343 SE2d 684); see also Freeman v. State, 205 Ga. App. 112 (421 SE2d 308). Nor, in the absence of a timely, written request for instruction, did the subsequent failure to charge the jury that a prior first offender disposition may not be considered in deciding the murder count render the denial of severance erroneous. Compare Williams v. State, 262 Ga. 422, 423 (4) (420 SE2d 301) (appellant acquitted of murder). Additionally, appellant has failed to enumerate as error the lack of any limiting instruction regarding use of prior first offender evidence; accordingly, this issue is not preserved for appeal. Chezem v. State, 199 Ga. App. 869, 870 (2) (406 SE2d 522).

3. Appellant asserts the trial court erred in denying his motion for mistrial, because a detective prejudicially interjected appellant’s character in issue when he testified that “the name [of appellant] was brought up, and then I found out from another detective in an unrelated case.” Appellant concedes in his brief that there is no absolute right to a mistrial in such a situation, but that a curative instruction should have been given as it was implied appellant was previously arrested.

As the motion for mistrial was not made at the time the testimony objected to was given (it appears several pages later in the transcript), it was not timely; the issue is waived on appeal. Thaxton v. State, 260 Ga. 141, 143 (5) (390 SE2d 841); Dye v. State, 177 Ga. App. 824 (341 SE2d 314). Nor was a timely request made for a curative instruction; this issue also is waived on appeal. See Carr v. State, 259 Ga. 318, 320 (2) (380 SE2d 700); Oller v. State, 187 Ga. App. 818, 823 (4) (371 SE2d 455). Further, review of the questioned testimony does not reveal that it reasonably implied appellant’s prior arrest as herein contended.

Decided May 20, 1993.

Hartley, Puls & O’Connor, Alton G. Hartley, for appellant.

J. Tom Morgan III, District Attorney, Stacy Y. Cole, John H. Petrey, Assistant District Attorneys, for appellee.

4. The trial court did not abuse its discretion in replaying Lt. Gainey’s testimony at the jury’s request. Johns v. State, 239 Ga. 681, 683 (2) (238 SE2d 372). The trial court also did not err in failing to replay other unrequested testimony with Gainey’s testimony. There is no abuse of discretion in merely replaying what the jury asks to hear. Lee v. State, 259 Ga. 230, 232 (4) (378 SE2d 855). Also, appellant’s broad objection that the replayed testimony “does overly emphasize a particular piece of testimony,” without identifying the particular testimony allegedly overemphasized, is too vague and general to constitute a specific objection at the trial level. Wilson v. State, 145 Ga. App. 315, 322 (5) (244 SE2d 355).

5. The trial court did not err in allowing an investigator from the district attorney’s office who had been present in court throughout trial to testify in rebuttal, notwithstanding appellant’s objection based on a claimed violation of the rule of sequestration. Assuming arguendo a violation of the rule of sequestration, “ ‘ “[i]n criminal cases, the violation of the rule of sequestration of any witness . . . goes to the credibility rather than to the admissibility of the witness’ testimony.” ’ ” O’Kelley v. State, 175 Ga. App. 503, 505 (1) (333 SE2d 838). “A party’s remedy for a violation of the rule is to request the trial court to charge the jury that the violation should be considered in determining the weight and credit to be given the testimony of the witness.” Johnson v. State, 258 Ga. 856, 857-858 (4) (376 SE2d 356). Appellant has enumerated no such charging error. Chezem, supra.

Additionally, the investigator testified, without contradiction, that he was the investigator assigned to assist the prosecution. Compare Mullen v. State, 197 Ga. App. 26, 27 (2) (397 SE2d 487). The prosecutor stated in his place that the witness “is the lead investigator in this case and having him absent from the courtroom would have seriously been a detriment to [the State]. We would not have been able to orderly present our evidence,” and that the necessity for the witness’ rebuttal testimony did not become known until after Mr. Belmar testified. The trial court did not abuse its discretion in allowing the witness to testify. Compare Sweat v. State, 203 Ga. App. 290, 291 (1) (416 SE2d 845).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A93A0480.
    MUNN v. THE STATE.
    (431 SE2d 447)
   Birdsong, Presiding Judge.

Lamar Munn appeals his judgment of conviction of armed robbery, aggravated assault and kidnapping, and sentence. Held:

1. The jury was asked if they were related to or knew the named victim in any way, and none in the array responded affirmatively; the jury subsequently was selected. On the second day of trial a juror reported that although she had not known the victim’s name, she recognized her when the victim entered the courtroom. The juror had worked with the symphony two or three years earlier and, although she had not spoken with the victim to arrange ticket sales, she had picked up blocks of symphony tickets from her. The juror had no other contact with and had not seen the victim since that event; the juror had not been to the Arts Center in two years. On voir dire the juror unequivocally maintained her ability to act objectively and to render a verdict based on the evidence and court instructions. The trial court declined appellant’s request to replace the juror with the alternate juror (compare Stokes v. State, 204 Ga. App. 141 (418 SE2d 419)). Appellant makes no claim the juror should have been excused for cause, or that the juror deliberately withheld information regarding her acquaintance with the victim; however, appellant maintains he was denied his right to use peremptory challenges “intelligently.” The juror did not engage in any form of jury misconduct. When she failed to respond to the initial question regarding knowledge of the victim, it was because she was unaware of such knowledge; when she subsequently discovered her prior passing acquaintanceship with the victim, she immediately reported it. Compare Gainesville Radiology Group v. Hummel, 263 Ga. 91 (428 SE2d 786).

No presumption of prejudice exists in these circumstances; no irregularity or impropriety is involved in this juror’s conduct. Notwithstanding appellant’s belated claim of impairment to exercise peremptory challenges intelligently, under the circumstances the trial court did not err. McLamb v. State, 176 Ga. App. 727 (3) (337 SE2d 360); cf. Poole v. State, 262 Ga. 668, 670 (2) (424 SE2d 275); Jones v. State, 247 Ga. 268, 270 (2b) (275 SE2d 67). The trial court did not abuse its discretion in determining the juror’s impartiality. Cf. Jones, supra at 270-271 (2b).

2. Appellant asserts the trial court erred in allowing in evidence the verdict from a previous trial, as it would tend to diminish the jury’s sense of responsibility as to its verdict and violate his fair trial right. These contentions are without merit. The documents in question (State’s Exhibit 20) provided circumstantial evidence of appellant’s prior commission of an offense of armed robbery, and were relevant to appellant’s identity as the perpetrator of a similar transaction (see Williams v. State, 261 Ga. 640, 643 (2d) (409 SE2d 649)). “[I]f evidence is duly admissible under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other evidentiary theories . . . evidence should be admitted if it is admissible for any legitimate purpose.” Boatright v. State, 192 Ga. App. 112, 116 (6) (385 SE2d 298). See Norman v. State, 197 Ga. App. 333, 337 (4) (398 SE2d 395). The trial court did not abuse its discretion in admitting State’s Exhibit 20; Boatright, supra.

3. The trial court did not abuse its discretion in finding the two offenses similar within the meaning of Williams v. State, supra. Compare Maggard v. State, 259 Ga. 291 (380 SE2d 259). Both rapes involved appellant’s approaching either a female stranger or a mere acquaintance in the early afternoon in a conspicuous (public) place, removing the victim to a relatively secluded spot by automobile, exiting the car on both occasions (in the prior case to get a knife; in the case at bar to raise the car hood) and employing either an approximately eight-inch kitchen knife or a long knife (“maybe” a kitchen knife) during the course of the rape in the prior case and the aggravated assault with intent to rape in the case at bar. Further, the passage of fourteen years from the date of the prior rape did not preclude the trial court from finding the two offenses sufficiently similar. Compare Gilstrap v. State, 261 Ga. 798, 799 (1b) (410 SE2d 423) with Cooper v. State, 173 Ga. App. 254, 255 (325 SE2d 877).

4. In the prior armed robbery in 1985, appellant approached a female stranger in the afternoon whose car had broken down, got into her automobile, pulled a “huge” knife (larger than a kitchen knife), and demanded the victim’s money. He implicitly threatened the victim by stating that she had better not be lying to him as to whether she had more money, looked through her wallet, and jumped out of the car and discarded the wallet when the policeman who had been assisting her returned. In the case at bar, appellant approached the female stranger in the underground parking area, threatened her with an eight-inch kitchen knife, demanded her money (whereupon the victim gave her wallet to him), threatened the victim implicitly by stating that there had better be money in the wallet, dragged her to her car, searched her wallet, announced his desire to engage in sexual release, and forced the victim to drive to a secluded area where she escaped. The prior robbery was sufficiently similar under Williams, supra. Compare Maggard, supra. The six-year time lapse did not render the prior offense inadmissible. Compare Gilstrap, supra, with Cooper, supra.

5. On appeal, citing Moore v. Illinois, 434 U. S. 220, 226 (98 SC 458, 54 LE2d 424), appellant asserts a Sixth Amendment violation claiming he was denied the right to counsel by being compelled to be in a physical lineup without his counsel being present.

(a) Appellant does not argue or cite legal authority to establish that the physical lineup was conducted in an impermissible suggestive manner, or assert any other errors in the execution thereof; thus, such other issues have been abandoned. Court of Appeals Rule 15 (c) (2).

(b) The trial court found as fact that appellant was informed in advance of the time and place of the lineup, could make phone calls, and could have called his attorney as he knew who the attorney was. As these findings of disputed fact were not clearly erroneous, we accept them on appeal. See State v. Davis, 261 Ga. 225, 226 (404 SE2d 100).

(c) The physical lineup was conducted before appellant was indicted and before evidence was taken at a preliminary hearing; Moore, supra, is distinguishable as that identification occurred, without counsel, at the preliminary hearing. As a general rule, “[n]o federal constitutional right to counsel exists at a pre-indictment lineup.” Phillips v. State, 204 Ga. App. 698, 700 (1) (420 SE2d 316); see Campbell v. State, 206 Ga. App. 456 (1a) (426 SE2d 45); Evans v. State, 201 Ga. App. 20, 26 (3) (410 SE2d 146). Assuming without deciding the prosecutor was aware a lineup would be conducted, the record reflects it was conducted by the police; there exists no evidence of the prosecutor’s presence at or participation in any manner in the lineup. Nor does the record reveal the prosecutor contrived to delay the preliminary inquiry to enable the police to conduct a lineup to circumvent a vesting of appellant’s right to counsel. Moreover, the record shows the police independently assumed responsibility for and conducted the lineup. It is contested whether appellant was allowed to assist in the selection of lineup participants. Under the circumstances, appellant’s contention of denial of his right to counsel under the Sixth Amendment thereby necessitating suppression of the pretrial identification by the victim is without merit. Compare Campbell, supra; Phillips, supra; Evans, supra; and Wilson v. State, 181 Ga. App. 435, 436 (2) (352 SE2d 618) with McGee v. W. J., Jr., 632 F2d 476 (5th Cir.) and McGee v. W. J., Jr., 625 F2d 1206 (5th Cir.).

(d) The victim made an in-court identification of appellant. Even if taint had occurred in pretrial identification at the physical lineup, a witness’ in-court identification may be admitted if it has “independent origin.” Martin v. State, 193 Ga. App. 581, 583 (1) (388 SE2d 420); Brown v. State, 192 Ga. App. 187 (1) (384 SE2d 254). The victim had a substantial period of time in daylight hours to view her attacker and was within two or three feet of him in the car; she clearly and in detail recounted the sequence of events occurring during the attack; she maintained presence of mind to seize an opportunity to escape; and she expressed neither uncertainty nor qualification as to her in-court identification. The in-court identification was of “independent origin.”

Decided May 20, 1993.

J. Robert Joiner, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


author: Johnson, Judge.

text:
    A93A0814.
    FRANZ v. THE STATE.
    (432 SE2d 554)
   Johnson, Judge.

Carl Franz was convicted in 1990 of child molestation and incest. He did not file a timely notice of appeal from his conviction and sentence. In 1992, more than two years after his conviction, Franz filed a pro se motion for an out-of-time appeal and extraordinary motion for a new trial. After a hearing on the motions, but before the trial court entered its order ruling on them, Franz filed a notice of appeal from his 1990 conviction and sentence. Three days later, the court entered its order denying Franz’s motion for an out-of-time appeal and extraordinary motion for a new trial.

1. The State has filed a motion to dismiss Franz’s appeal from the 1990 judgment as untimely. Although Franz’s notice of appeal purports to be from his 1990 conviction and sentence, it is apparent from the record and the documents Franz has filed in this court that he is appealing from the trial court’s order denying his motion for an out-of-time appeal and extraordinary motion for a new trial. See generally Stephens v. State, 201 Ga. App. 737 (1) (412 SE2d 568) (1991); Blackwell v. Cantrell, 169 Ga. App. 795 (1) (315 SE2d 29) (1984). Given Franz’s pro se status and the fact that his appeal was timely filed from the order denying his motions, we shall treat Franz’s notice as an appeal from that order. The State’s motion to dismiss is denied.

2. Franz challenges the court’s denial of his motion for an out-of-time appeal on the ground that his trial counsel was ineffective in refusing to file a timely appeal. “Our courts have long recognized the right to effective assistance of counsel on appeal from a criminal conviction, and have permitted out-of-time appeals if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights. [Cits.] An out-of-time appeal, however, is not authorized if the delay was attributable to the appellant’s conduct, either alone or in concert with counsel. [Cits.]” Evans v. State, 198 Ga. App. 537, 538 (402 SE2d 131) (1991). Franz was adequately informed of his appeal rights. At the hearing on Franz’s motion for an out-of-time appeal, the trial judge stated that after sentencing Franz in 1990 he informed Franz of his right to appeal and the attendant time limits. Franz does not contradict this statement. Franz presented no evidence showing that his right of appeal was denied through counsel’s negligence or ignorance; he simply claims that counsel advised him that an appeal was without merit. There is nothing in the record showing that this advice was erroneous. Franz did not hire another attorney or ask the court to appoint other counsel to represent him on appeal. Now, more than two years after his conviction, Franz attempts to appeal. Under these circumstances, the court was authorized to conclude that the lengthy delay in attempting to appeal is attributable to Franz’s conduct, either alone or in concert with his trial attorney. The court did not err in denying the motion for an out-of-time appeal. Harper v. State, 154 Ga. App. 550 (1) (269 SE2d 56) (1980).

3. The only argument set forth by Franz on appeal relating to his extraordinary motion for a new trial is a challenge to the sufficiency of the evidence supporting his conviction. “OCGA § 5-5-41 (a) gives the trial judge the discretion to allow the filing of an extraordinary motion for new trial after the expiration of the 30-day period where some good reason is shown why the motion was not made during such period. Normally, of course, the good reason necessary to permit the filing of an extraordinary motion for new trial consists of newly discovered evidence. However, the late filing of a motion for new trial may also be predicated on circumstances other than newly discovered evidence.” (Citations and punctuation omitted.) Martin v. Children’s Sesame, 188 Ga. App. 242 (1) (372 SE2d 648) (1988). The sufficiency of the evidence, as argued by Franz on appeal, is not a sufficiently good reason to grant an extraordinary motion for new trial. The trial court did not abuse its discretion in denying the motion.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge John W. Sognier concur.

Decided April 27, 1993 —

Reconsideration denied May 21, 1993.

Carl Franz, pro se.

H. Lamar Cole, District Attorney, for appellee.

       Franz’s motion for a new trial is an extraordinary motion for a new trial because it was filed more than 30 days after the entry of judgment. Wiley v. State, 204 Ga. App. 881, 882 (4) (420 SE2d 783) (1992).

       Franz’s premature filing of the notice of appeal, three days before the court filed its order, does not require dismissal of the appeal. Gillen v. Bostick, 234 Ga. 308 (1) (215 SE2d 676) (1975); Realty Trading Co. v. Fiduciary Leasco, 200 Ga. App. 261 (1) (a) (407 SE2d 486) (1991); LeGallienne v. State, 180 Ga. App. 108 (3) (348 SE2d 471) (1986).


author: Andrews, Judge.

text:
    A91A1724.
    DAVIS v. THE STATE.
    (432 SE2d 273)
    Decided May 24, 1993.

      Jay W. Bouldin, for appellant.

      David McDade, District Attorney, David York, Assistant District Attorney, for appellee.
   Andrews, Judge.

In Davis v. State, 202 Ga. App. 629 (414 SE2d 902) (1992), we affirmed the trial court’s denial of Davis’ motion to suppress. The Supreme Court granted certiorari and reversed our decision in Davis v. State, 262 Ga. 578 (422 SE2d 546) (1992). Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Cooper, Johnson, Blackburn and Smith, JJ., concur.


author: Cooper, Judge.

text:
    A93A0030.
    GRISSON v. THE STATE.
    (431 SE2d 468)
   Cooper, Judge.

Appellant was convicted of driving under the influence. In his sole enumeration of error, he argues that the trial court erred in denying his motion in limine to exclude the results of the State’s breath test because he was denied his right to an independent test of his own choosing pursuant to OCGA § 40-6-392 (a) (3).

After a hearing on the motion in limine, the trial court found that appellant was afforded the opportunity to request an independent test, that he did request such a test, and that the independent test was performed as requested. Appellant argues that the evidence at the hearing was not sufficient to support these findings. However, the hearing was not recorded. Error must be shown by the record rather than by brief, and “absent a transcript, ‘we must assume the ruling of the trial court is supported by the evidence.’ [Cit.]” Odom v. State, 196 Ga. App. 293 (3) (396 SE2d 27) (1990). Accordingly, this argument is without merit and the judgment must be affirmed.

Decided May 24, 1993.

Darryl K. Brown, for appellant.

Kenneth W. Mauldin, Solicitor, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, P. J., concur.


author: Blackburn, Judge.

text:
    A93A0081.
    BROOKS v. THE STATE.
    (431 SE2d 466)
   Blackburn, Judge.

Eddie Malcolm Brooks brings this appeal from his conviction of a violation of the Georgia Controlled Substances Act by possession of cocaine. The two enumerations of error challenge the trial court’s denial of his motion to suppress evidence seized during a warrantless search of his person.

The record reveals that on January 10, 1992, at approximately 11:30 a.m., Sergeant David Godwin received a telephone call at his office from a confidential informant. The informant told Sergeant Godwin that a city employee, by the name of Eddie Brooks, was on his way to the College Street projects, to apartment 234, to meet with a man named Al. The informant stated that Brooks had told him that A1 was supposed to sell Brooks a quantity of crack cocaine. The informant described Brooks as wearing a camouflage hat, camouflage jacket, and driving an older model white city pickup truck with a small yellow light on top of it. Sergeant Godwin testified at the hearing on the motion to suppress and at the trial that he had met the informant, but that the informant had not previously given information which led to an arrest. The evidence is disputed as to whether the informant had provided any information in the past.

After Sergeant Godwin received the information, he traveled to the College Street projects. Sergeant Godwin had prior knowledge that Alfred Leeks, a suspected drug dealer, lived in apartment 234. Upon his arrival, Sergeant Godwin noticed an older model city pickup truck with a little yellow light on top. Sergeant Godwin then called for assistance. At approximately 12:30, Agent Hobbs, reported that a subject fitting the description given was on his way to the truck and getting into it.

The agents stopped the truck which Brooks was driving. Brooks got out of the truck upon the request of Agent Hobbs. Agent Hobbs asked Brooks if he had any illegal weapons, to which Brooks stated no. Agent Hobbs then patted Brooks down for weapons and found nothing. Sergeant Godwin identified himself and asked the suspect his name. The suspect identified himself as Eddie Brooks. Sergeant Godwin asked Brooks if he had any drugs on him, to which Brooks stated no. Sergeant Godwin then asked Brooks for permission to search him. Brooks would not respond, but acted extremely nervous according to Sergeant Godwin. The sergeant testified: “He [Brooks] was acting real nervous, which usually people do when we stop them. If they’ve got drugs on them, they do start acting nervous because they know that’s what we’re there for. ... He was acting nervous, extremely nervous, more so than just if the police stopped you.” Sergeant Godwin searched Brooks for drugs. The search revealed a pocketknife and a cigar box. The bottom of the cigar box contained cocaine crumbs. Brooks was then arrested.

1. The first enumeration of error asserts that the search of Brooks was illegal and, therefore, the evidence obtained during the search should be suppressed. Brooks complains that the initial stop was not based upon reasonable suspicion because the informant had not been proven reliable. While an informant’s veracity, reliability, and basis of knowledge are “highly relevant in determining the value of his report [, these elements are not] entirely separate and independent. requirements to be rigidly exacted in every case. . . . Rather, . . . they should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place.” Illinois v. Gates, 462 U. S. 213, 230 (103 SC 2317, 76 LE2d 527) (1983). See also State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984).

For probable cause to search a person without a warrant, we must “look to the parameters of police knowledge at the time the search occurred to determine if that knowledge was such as would ‘justify a man of reasonable caution in believing that an offense has been or is being committed, and this requires merely a probability — less than a certainty but more than a mere suspicion or possibility. (Cits.)’ [Cits.]” Bogan v. State, 165 Ga. App. 851, 852 (303 SE2d 48) (1983); Durden v. State, 250 Ga. 325 (1) (297 SE2d 237) (1982). The reviewing court “must determine under the ‘totality of the circumstances’ whether the evidence in this case showed a fair probability that contraband or evidence of a crime would be found in a particular place. [Cit.]” Butler v. State, 185 Ga. App. 478, 479 (364 SE2d 612) (1988). See also Illinois v. Gates, 462 U. S. at 238; State v. Stephens, supra.

Decided May 24, 1993.

T. Mark Thedieck, for appellant.

Brooks relies primarily upon this court’s decision in Moreland v. State, 204 Ga. App. 218 (418 SE2d 788) (1992) to assert that the initial stop was not based upon reasonable suspicion. The Moreland decision rested upon a very specific set of facts, clearly distinguishable from this case. In Moreland, a police officer made a traffic stop and conducted a search of persons inside the car based solely upon a vague tip from an anonymous caller. In the present case, it is undisputed that Sergeant Godwin knew the informant, therefore, the informant was not an anonymous tipster. The informant described in detail what Brooks was wearing, driving and where he could be found. Additionally, Sergeant Godwin verified that a man wearing a camouflage hat and jacket and driving an older model city pickup truck with a small yellow light on the top was at the College Street projects near apartment 234. This verified information and the sergeant’s independent knowledge that a suspected drug dealer lived in apartment 234 of the College Street projects, combined with the fact that the informant stated that the suspect told him that the suspect was going to buy drugs, created a reasonable suspicion to detain Brooks. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

Once Brooks was detained, Sergeant Godwin verified Brooks’ identity and observed Brooks’ “extremely nervous” demeanor. Under the totality of the circumstances in this case, we find a substantial basis for probable cause to have existed for a pat-down for weapons and a search for drugs.

2. Brooks’ final enumeration asserts that the evidence presented during the motion to suppress hearing together with the evidence presented at the trial requires suppression of the evidence. This enumeration is apparently based upon the conflict in the evidence as to whether the informant had provided information in the past. As discussed above, an informant’s reliability should be considered in light of the totality of the circumstances. Illinois v. Gates, supra, 462 U. S. at 238; State v. Stephens, supra at 182. Furthermore, the Supreme Court has held that “[f] actual and credibility determinations of this sort made by a trial judge after a suppression hearing must be accepted by appellate courts unless such determinations are clearly erroneous. [Cits.]” Johnson v. State, 233 Ga. 58 (209 SE2d 629) (1974). After consideration of the evidence presented during the hearing on the motion to suppress and at trial, this court finds that the trial court’s factual determinations were not clearly erroneous. Accordingly, Brooks’ second enumeration is also without merit.

Judgment affirmed.

Johnson and Smith, JJ., concur.

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


text:
    A93A0178.
    McKENZIE v. THE STATE.
    (431 SE2d 715)
   Cooper, Judge.

After his motion to suppress evidence was denied, appellant pled guilty to possession of cocaine (two counts) and marijuana (two counts), reserving his right to appeal the denial of his motion to suppress in accordance with Mims v. State, 201 Ga. App. 277 (1) (410 SE2d 824) (1991).

On the day of appellant’s arrest, an informant called the Hines-ville Police Department and said that later that evening he was going to pick up someone at Floyd’s Trailer Park to go purchase drugs. The informant met with several detectives who wired him with an electronic sound device and instructed him to say “we’re going to party tonight” when the sale was consummated. The informant then picked up Gary and Freda Lane at Floyd’s Trailer Park and drove to appellant’s residence. Officers on the surveillance team watched one of the individuals from the car go into appellant’s residence and return, and then heard the informant say the key words indicating that drugs had been purchased. None of the officers saw appellant make the sale, and subsequent investigation revealed that the sale actually was made by a friend of appellant’s who was staying with him at the time. When the informant drove off, some of the officers on the surveillance team followed, leaving others at appellant’s house.

Detective Rogers testified that after officers stopped the informant’s car and found drugs, he notified Detective Davis, an officer watching appellant’s house, that the controlled buy had been made. Davis told Rogers that appellant was departing in his vehicle, and Rogers instructed Davis to stop appellant and hold him until Rogers arrived. Davis testified that he told appellant he was under arrest for sale of cocaine when he initially stopped him and then detained him until Rogers arrived. Rogers, on the other hand, testified that when he arrived and approached appellant’s vehicle, he saw crack cocaine residue in the front seat and arrested appellant for possession of cocaine at that time. After appellant was taken to jail, a search of his person revealed cocaine and marijuana. The officers obtained a search warrant to search appellant’s house, and the search conducted pursuant to that warrant produced additional cocaine and marijuana.

1. Appellant first argues that evidence of drugs found on him after his arrest should have been suppressed because the warrantless arrest was illegal. The legality of a warrantless arrest depends “ ‘ “upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at the moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense.” [Cits.]’ [Cit.]” Manzione v. State, 194 Ga. App. 227, 228-229 (390 SE2d 121) (1990); see also State v. Wilson, 179 Ga. App. 334 (346 SE2d 111) (1986).

We reject the State’s assertion that appellant was not arrested until Rogers arrived and saw cocaine residue on the front seat of appellant’s car, and that prior to that time, the officers’ detention of appellant was a Terry stop for which only a reasonable suspicion based on articulable facts was necessary. See Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). “ ‘Under our statute a person is under arrest whenever his liberty to come and go as he pleases is restrained, no matter how slight such restraint may be. OCGA § 17-4-1.’ ” State v. Nelson, 261 Ga. 246 (1b) (404 SE2d 112) (1991). A Terry stop is a brief detention by an officer who suspects an offense is being committed or has been committed, for the purpose of clarifying or investigating the facts that gave rise to that suspicion. Radowick v. State, 145 Ga. App. 231, 237 (3) (244 SE2d 346) (1978); see also Bowers v. State, 151 Ga. App. 46 (258 SE2d 623) (1979), aff’d 245 Ga. 367 (265 SE2d 57) (1980). Davis, the first detective on the scene, testified that he immediately advised appellant that he was under arrest for sale of cocaine. Davis did not proceed with any questioning or investigation, but held appellant there until Rogers arrived. This restraint of appellant’s freedom to leave constituted an arrest. Bowers, supra; Radowick, supra.

Nonetheless, we agree with the trial court that the arrest was not illegal. At the time of appellant’s arrest by Davis, the officers knew that a controlled purchase of cocaine occurred at appellant’s home and that appellant left his home not long after the purchase, and this knowledge provided sufficient probable cause to believe that appellant had participated in the sale of cocaine. Citing Polke v. State, 203 Ga. App. 306 (1) (417 SE2d 22) (1992), appellant argues that the controlled purchase cannot provide probable cause because it was set up using information from and the assistance of an informant of unknown reliability. However, unlike the informants in Polke, the informant in this case demonstrated his reliability by meeting with detectives, allowing them to wire him, and putting himself on the line by participating in the controlled purchase. Moreover, by the time of the arrest, the informant’s information had been corroborated by the arrival of the car at appellant’s residence, the entry into appellant’s house and departure a few minutes later of one of the car’s occupants, and the subsequent arrest of the car’s occupants for possession of cocaine — all of which were actually witnessed by one or more of the officers. Thus, this case did not involve improper reliance by the officers on uncorroborated information from an unknown informant.

Decided May 24, 1993.

Merritt & Rose, Charles P. Rose, Jr., for appellant.

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

Appellant’s assertion that probable cause did not exist because none of the officers actually saw appellant sell cocaine is also without merit; circumstantial evidence may give rise to probable cause as long as it is “sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense.” Manzione, supra. Furthermore, the fact that police later discovered that appellant’s friend rather than appellant actually made the sale in appellant’s home does not negate the existence of probable cause at the moment of arrest or render the arrest illegal. See Brooks v. State, 166 Ga. App. 704 (305 SE2d 436) (1983).

2. Appellant also contends that evidence of drugs found in his home should have been suppressed because the affidavit supporting the request for the warrant was insufficient to establish probable cause. “In determining whether to issue a search warrant, ‘the 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, . . . 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.’ [Cits.]” Futch v. State, 178 Ga. App. 115, 116 (1) (342 SE2d 493) (1986). Officer Richardson’s affidavit stated, among other things, that a controlled purchase of cocaine had occurred at appellant’s home that day and that the purchasers had been arrested for possession of cocaine after leaving appellant’s home. This statement alone provided a substantial basis for the conclusion that drugs and marked bills would probably be found in the home. See Kemp v. State, 201 Ga. App. 629 (6) (411 SE2d 880) (1991). Therefore, the trial court did not err in denying appellant’s motion to suppress.

Judgment affirmed.

McMurray, P. J., and Beasley, P. J., concur.


text:
    A93A0302.
    NELSON v. THE STATE.
    (431 SE2d 464)
   Blackburn, Judge.

The appellant, Diadra Nelson, was convicted of voluntary manslaughter and possession of cocaine in violation of the Georgia Controlled Substances Act. On appeal, she contends that the trial court erred in admitting into evidence a custodial statement and testimony about her drug use, and that the evidence was insufficient to support her conviction.

On June 14, 1991, Nelson had an altercation with her boyfriend. It is undisputed that the subject matter of the fight was crack cocaine, although who was using the drug was in conflict. Nelson, who denied ever using drugs, claimed that the argument arose over her demand that her boyfriend keep his supply of cocaine out of her apartment. However, another witness stated that she and Nelson had been smoking crack cocaine all that day, and that the fight developed when Nelson’s boyfriend returned home and became irate over their using the drug without him. Nelson’s father was present and tried to end the argument, but at some point Nelson retrieved a pistol from a bedroom and shot her boyfriend in the mouth. The boyfriend never regained consciousness and died 55 days later.

Before the police arrived at the scene, Nelson’s father and another individual mopped up some of the blood on the floor, and Nelson placed the gun in a clothes hamper. Initially, the police were told that the gunshot injury was self-inflicted, but Nelson eventually claimed that the shooting was accidental, with the weapon having discharged when she was waving it in an attempt to make her boyfriend leave her alone. During their investigation of the scene, the police officers observed drug paraphernalia, cocaine residue, and empty vials on the dining table, and they found 49 hits of crack cocaine in a hallway storage area. The officers also removed crack cocaine from both front pockets of Nelson’s pants. At the trial, Nelson denied having cocaine in her pockets, and explained that she had merely been holding in her hand some cocaine that had fallen out of her boyfriend’s jacket pocket.

When Nelson retrieved the gun for the police during their investigation, the hammer was cocked and ready to fire again. At the trial, a firearms expert with the state crime lab testified that the gun was a high quality revolver which required approximately ten pounds of pressure pulling the trigger to cock the hammer. Once the hammer was cocked, three pounds of pressure were needed to fire the weapon.

1. On the evening of the incident, Nelson gave an inculpatory custodial statement to the police. Following a Jackson v. Denno hearing during which only the interrogating officer testified, the trial court admitted the statement into evidence without explaining its ruling determining the voluntariness of the statement. Nelson contends that this omission requires remand of the case for clarification as to the admissibility of the custodial statement, as was done in Parker v. State, 255 Ga. 167 (1) (336 SE2d 242) (1985).

Generally, when a trial court denies a motion to suppress a custodial statement without explanation, remand is necessary for such clarification. Parker v. State, supra; Hicks v. State, 255 Ga. 503 (1) (340 SE2d 604) (1986). However, where “there is no evidence which would authorize the trial court to find that appellant’s statement was not voluntarily given . . . there is no reason to remand for findings of fact as to the voluntariness of appellant’s statement because no disputed question of fact relevant to that issue was ever raised and any ruling by the trial court other than to admit appellant’s statement would be erroneous.” Hart v. State, 193 Ga. App. 834, 835-836 (389 SE2d 400) (1989). See also Craver v. State, 246 Ga. 467 (1) (271 SE2d 862) (1980), in which the Supreme Court even found no error in the failure to conduct a Jackson v. Denno hearing where the defendant presented no evidence or offer of proof that his statement was not voluntary.

In the instant case, the testimony of the interrogating officer during the Jackson v. Denno hearing showed Nelson’s statement to be voluntary, and Nelson presented no evidence whatsoever regarding the voluntariness of her statement. Under these circumstances, there was no error in the trial court’s denial of the motion to suppress without explanation. Hart v. State, supra.

2. One witness testified on behalf of the state that she was present at Nelson’s apartment much of the day of the shooting, smoking cocaine with Nelson. Over objection, the prosecutor was allowed to ask this witness if this was the first time she had used drugs with Nelson. Nelson contends that this inquiry impermissibly placed her character into evidence.

However, in addition to the homicide, Nelson was indicted for possession of cocaine, and the indictment did not show the date of the offense to be an essential averment. Evidence that she had been in possession of cocaine at any time during the statute of limitation thus was admissible to prove that offense, and was not evidence of similar transactions within the ambit of USCR 31.1. Robinson v. State, 202 Ga. App. 576 (1) (415 SE2d 21) (1992).

3. Lastly, Nelson contends that the trial court erred in denying her motion for directed verdict of acquittal. However, on appeal the evidence must be viewed in the light most favorable to uphold the jury verdict; the appellate court determines evidence sufficiency and not witness credibility. Plumm v. State, 201 Ga. App. 154 (3) (410 SE2d 352) (1991). Viewing the evidence in accordance with that standard, we conclude that the evidence was sufficient to authorize any rational trier of fact to find Nelson guilty beyond a reasonable doubt of voluntary manslaughter and possession of cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided May 24, 1993.

Patrick G. Longhi, for appellant.

Lewis R. Slaton, District Attorney, Carl Greenberg, Anita Wallace, Assistant District Attorneys, for appellee.

A directed verdict of acquittal is authorized only where there is no conflict in the evidence, and the evidence demands a verdict of “not guilty.” OCGA § 17-9-1. Where the evidence is sufficient to meet the standard stated in Jackson v. Virginia, supra, “it cannot possibly be said the evidence demanded a verdict of acquittal.” Miller v. State, 201 Ga. App. 108, 109 (410 SE2d 328) (1991).

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0406.
    MEIER v. BENNETT.
    (431 SE2d 462)
   Cooper, Judge.

This appeal arises out of a personal injury action brought by appellant against appellee for injuries sustained in an automobile accident. The trial court granted appellee’s motion to dismiss and this appeal followed.

The accident occurred on May 24, 1987, and appellant filed his lawsuit on May 10, 1989. The return of service reflects that on June 9, 1989, service was made on appellee by leaving the summons with appellee’s father at 4215 Glengary Drive N.E., Atlanta, Georgia. On July 17, 1989, appellee filed his answer and raised as one of his affirmative defenses the running of the statute of limitation. Almost three years later, appellee filed a motion to dismiss the action on the ground that service had not been perfected within a reasonable time after the expiration of the statute of limitation. In support of the motion, appellee submitted an affidavit stating that at the time of the accident he resided at 5891 Meadowbrook Road, Norcross, Georgia and that he still resided there. Appellant responded that appellee had waived any claim of defective service by failing to raise the claim when the answer was filed pursuant to OCGA § 9-11-12 (b).

“ ‘The purpose of process and service is to bring the defendant into court. (Cits.) The object of service on the defendant is to afford him notice of the pendency of the proceeding and to afford him an opportunity to appear and to be heard.’ [Cit.]” Ga. Power Co. v. O’Bryant, 169 Ga. App. 491, 492 (313 SE2d 709) (1984). However, “[a] copy of the summons and complaint left with a relative at a place other than appellee’s residence or usual place of abode is not sufficient service. [Cit.] The fact that appellee, having received [notice of the complaint] , had actual knowledge that a complaint had been filed against him did not cure the defect in service. [Cit.]” Terrell v. Porter, 189 Ga. App. 778, 779 (1) (377 SE2d 540) (1989). “Under [OCGA § 9-11-12 (b) (5)], the defense of insufficiency of service of process must be asserted in the appropriate responsive pleading or it may at the option of the pleader be made by motion in writing before or at the time of pleading.” Brumit v. Mull, 165 Ga. App. 663, 664-665 (2) (302 SE2d 408) (1983).

Appellee argues that he was not required to raise the defense of insufficiency of service because there was no service of any kind, sufficient or insufficient, and because his defense is predicated only on the expiration of the applicable statute of limitation. We cannot accept appellee’s argument that this case presents a situation where there was no service. The return of service indicates that service was made on appellee at his most notorious place of abode and is prima facie evidence of service upon appellee. See Garrett v. Godby, 189 Ga. App. 183 (1) (375 SE2d 103) (1988). Moreover, appellee received actual notice of the lawsuit as evidenced by the fact that-he filed an answer to the complaint. Therefore, service was accomplished, albeit insufficient service, and the appropriate defense for appellee to raise was the insufficiency of the service. However, it is undisputed that appellee failed to raise this defense at the time he filed his answer, or at any time in the three years leading up to the filing of his motion to dismiss. Moreover, during the three years that the case was pending, appellee actively participated in defending the case, including filing motions and conducting discovery, and appellant was justified in relying on the return of service and taking no other steps to perfect service. We conclude that appellee’s conduct was “ ‘so manifestly consistent with and indicative of an intention to voluntarily relinquish a then known particular right or benefit, that no other reasonable explanation of [his] conduct is possible.’ [Cit.]” Wheeler’s, Inc. v. Wilson, 196 Ga. App. 622, 624 (396 SE2d 790) (1990); accord Ga. Power Co. v. O’Bryant, supra.

Although appellee waived his right to object to the improper service, appellee properly raised the defense of the statute of limitation both in his answer and by subsequent motion. “ ‘Whether [appellee’s] motion to dismiss the complaint as barred by the statute of limitation should be granted is determined by whether the [appellant] has shown that he acted in a reasonable and diligent manner in attempting to assure that proper service was made as quickly as possible.’ ” Walker v. Hoover, 191 Ga. App. 859, 860 (383 SE2d 208) (1989). Since it does not appear from the record that the trial judge made a determination as to whether appellant acted in a reasonable and diligent manner in attempting to make proper service, we remand the case to the trial court for a determination of this issue. See Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828 (2b) (360 SE2d 280) (1987).

Decided May 24, 1993.

Steven M. Youngelson, for appellant.

Michael L. Wetzel, for appellee.

Judgment reversed with direction.

McMurray, P. J., and Beasley, P. J., concur.


text:
    A93A0757.
    WALKER v. THE STATE.
    (431 SE2d 459)
   Andrews, Judge.

Walker was convicted of trafficking in cocaine, obstruction of a police officer, fleeing and attempting to elude a police officer, and DUI.

Viewing the evidence in the light most favorable to the verdict, it was that on September 30, 1990, Walker was seen by Officer Larry Young, a deputy with the Carroll County Police Department, stopped in a Maverick at a traffic light at the intersection of Highways 78 and 61. Walker was stopped in the southbound lane, although his vehicle was headed north.

Officer Young got out of his vehicle and approached Walker’s vehicle to investigate the situation and Walker sped off down Highway 78. Young chased him approximately five or six miles while using the blue lights and siren of his vehicle. At times the chase exceeded 105 mph and Young testified that Walker’s driving was reckless.

Walker slowed down and pulled off the road in an area which was rural and wooded. He left the engine on the vehicle running and the lights on, and he jumped out and ran from the car. Walker saw Young and stumbled, and then turned around and ran off in the other direction along a fence in the woods. Young, who had contacted the police dispatcher, chased Walker for several minutes and finally grabbed him. Walker then began fighting with Young and Walker started to grab for his own gun. Young commanded Walker to stop resisting and when he did not, Young hit him with a flashlight. During this encounter, Walker smelled of alcohol, had slurred speech, bloodshot eyes and was unsteady on his feet.

After Walker was arrested, the area in which Walker’s vehicle stopped was searched. Two bags of cocaine were discovered, which together weighed 49.8 grams. One of the bags was found in the area near Walker’s car where Walker had stumbled upon seeing Young. The other package of the drug was found about fifty feet from the front of the car, six or seven inches on the other side of the fence next to which Walker had been running.

The search of Walker’s vehicle revealed various items used in measuring cocaine, including a set of scales and small clear plastic bags. Also found was a clear rubber plastic hose, some pills and a gun on the vehicle’s front seat. Walker had a total of $4,260 on his person, mostly in small denominations.

The woman who resides in the house closest to where the chase occurred testified. She stated that she and her husband were unfamiliar with cocaine and that on the day after the chase, they found a small bottle and a handkerchief on their property. She stated that the area around that fence was not heavily trafficked.

Walker testified at trial. He explained that he ran from the police officer because he had alcohol in the vehicle and that even though he was a diabetic, he had consumed a small amount of alcohol.

1. In his first enumeration of error, Walker contends that the evidence was insufficient for conviction. Walker’s argument concerns only the conviction for trafficking in cocaine, he does not argue that the evidence regarding the other convictions was insufficient. He claims that since the cocaine was found on the ground near his car and on the other side of the fence near where the police chased him, a rational trier of fact could not have found him guilty beyond a reasonable doubt and the evidence failed to exclude all other reasonable hypotheses other than his guilt.

We find this argument without merit. “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. OCGA § 24-4-6. A reasonable hypothesis as used in this Code section refers only to such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life; it does not mean that the act might by bare possibility have been done by someone else. (Cits.)” (Punctuation omitted.) Bean v. State, 204 Ga. App. 242, 243 (1) (418 SE2d 798) (1992).

Here, there was sufficient evidence to support the conviction. “Thus, contrary to defendant’s contentions, the State was able to show more than defendant’s mere spatial proximity to the contraband. The evidence points toward defendant and only him. We hold sufficient evidence was presented to authorize the jury to disregard the only hypothesis offered by defendant and to authorize defendant’s conviction. . . .” (Citations and punctuation omitted.) Bean, supra at 243. Further, there was no affirmative evidence that anyone other than Walker had an equal opportunity to commit the crime. Cochran v. State, 190 Ga. App. 884, 886 (1) (380 SE2d 319) (1989). The evidence was sufficient for conviction. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Secondly,. Walker claims that the trial court erred in admitting evidence of similar transactions in that the State failed to present and the trial court failed to make the requisite findings pursuant to Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991).

Prior to trial the court held a hearing regarding the similar transaction evidence. The State presented evidence that on June 15, 1991, Officer Talley had observed Walker driving on the wrong side of the road. When Talley attempted to stop Walker he fled, and a ten-minute chase ensued. Walker veered off the road into a pasture and then fled on foot. After a struggle with Walker, Talley subdued Walker. A subsequent search revealed that Walker was carrying what appeared to be crack cocaine.

At the time of the hearing regarding this similar transaction, the trial court found that Walker had received notice of the State’s intention to introduce the other crime. The trial court determined, and defense counsel agreed, that the transactions were similar. In.response to the trial court’s inquiry, defense counsel replied in the affirmative when the trial court asked if he objected to the introduction of the evidence since the prejudicial impact of the evidence outweighed its probative value. Defense counsel then requested that the court give limiting instructions regarding the evidence at the time it was introduced. At trial he again renewed this objection. Walker’s argument here is that the State failed to make the showings required by Williams, specifically that it did not set out the purpose for which the similar transaction evidence was offered.

Immediately following the State’s presentation of the similar transaction evidence, the court gave a detailed instruction regarding the purpose for which the similar transaction evidence was offered. The court explained that the evidence was admitted solely for the purpose of determining the “knowledge, common design, modus operandi, motive, intent, good or bad faith, bent of mind, plan, scheme and course of conduct, identity or other matters dependent upon a person’s state of mind” and that the jury was not to consider the evidence for any other purpose.

In Williams, supra, our Supreme Court determined that before any evidence of independent offenses or acts may be admitted, a hearing must be held pursuant to Uniform Superior Court Rule 31.3 (B) and three showings made. The showings are (1) that the State “seeks to introduce evidence of an independent offense or act for an appropriate purpose; (2) there is sufficient evidence to establish the accused committed the independent offense or act; and (3) there is a sufficient similarity between the independent offense or act and the crime charged so that the proof of the former tends to prove the latter. Williams, 261 Ga. at 642. After the 31.3 (B) hearing, and before any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particular offense or act.” (Punctuation omitted.) Riddle v. State, 208 Ga. App. 8 (1) (b) (430 SE2d 153) (1993).

Decided May 24, 1993.

Word & Flinn, Gerald P. Word, for appellant.

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

“This court has held, however, in cases in which a Rule 31.3 (B) hearing was held, that the failure of a defendant to object to the introduction of similar transaction evidence on the basis that the State has not made a sufficient showing and/or the trial court has not made the requisite findings as required by Rule 31.3 (B) and our Supreme Court’s decision in Williams precludes appellate consideration of those issues. See, e.g., Hunter v. State, 202 Ga. App. 195, 198 (3) (413 SE2d 526) (1991) . . . McGaha v. State, 204 Ga. App. 248 (418 SE2d 802) (1992); Shields v. State, 202 Ga. App. 659 (2) (415 SE2d 478) (1992).” Riddle, supra.

In McGaha, supra, a similar situation to the instant one arose. There, “[appellant’s sole objection in the trial court was that the prejudicial impact of the prior convictions on the jury outweighed the probative value thereof. In his brief on appeal, however, appellant urges only that the State failed to make the affirmative showings required by Williams[, supra]. Nothing in . . . Williams suggests that the Supreme Court has determined to dispense with the long-standing rule that, to warrant appellate consideration, an objection to the admission of evidence must first have been raised in the trial court.” (Citations and punctuation omitted.) McGaha, supra at 249. See also Lee v. State, 205 Ga. App. 659 (2) (423 SE2d 29) (1992); Jackson v. State, 205 Ga. App. 513 (1) (422 SE2d 673) (1992); compare Dewberry v. State, 205 Ga. App. 752 (423 SE2d 310) (1992).

Judgment affirmed.

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


author: Beasley, Presiding Judge.

text:
    A93A0773.
    FIVE STAR STEEL CONTRACTORS, INC. v. COLONIAL CREDIT UNION.
    (431 SE2d 712)
   Beasley, Presiding Judge.

We granted this discretionary appeal to resolve an issue of first impression: whether a garnishee’s failure to accept certified mail notification that a default judgment has been entered against it satisfies the requirement of “actual notice” in OCGA § 18-4-91 so as to commence the running of the 60-day period during which, upon payment of accrued costs, a garnishee may move to modify the default judgment. We hold that it does and affirm the judgment below.

Colonial Credit Union obtained judgment against Jackie Sneed in the amount of $5,424.71. Colonial believed Five Star Steel Contractors, Inc. to be Sneed’s employer, and summons of garnishment was personally served on Five Star. Sneed’s employment with Five Star, however, had terminated several weeks prior to the service of the summons. Mistakenly believing there was no need to answer since it did not owe Sneed any money, Five Star ignored the summons. Default judgment was entered against Five Star on January 6, 1992.

In January 1992, Colonial mailed a copy of the default judgment to Five Star via certified mail return receipt requested. A certified mail envelope postmarked January 24, 1992, indicates that it was sent by Colonial’s attorney on that date to Five Star at its correct address and that no postage was due. After several attempts at delivery, the envelope was returned “unclaimed” in February 1992. In July 1992 Colonial obtained a fi. fa. Postjudgment interrogatories were personally served on Five Star on September 1, 1992.

Five Star’s motion for reduction of the amount of the default judgment pursuant to OCGA § 18-4-91 was filed on September 18, 1992, and accrued costs were paid. In that motion and the accompanying affidavit of its president, Five Star alleged that it first learned of the default judgment on September 1, 1992. The court denied the motion as untimely, i.e., outside the 60-day period within which such motions may be filed, finding that Five Star had received notice when it refused to accept the certified mail in February.

OCGA § 18-4-91 allows a defaulting garnishee to move “not later than 60 days from the date [it] receives actual notice of the entry of the judgment against him, . . . upon payment of all accrued costs of court, [to] have the judgment modified so that the amount of the judgment shall be reduced to an amount equal to the greater of $50.00 or $50.00 plus 100 percent of the amount by which the garnishee was indebted to the defendant from the time of seryice of the summons of garnishment through and including the last day on which a timely answer could have been made. . . . Notice to the garnishee by certified mail shall be sufficient notice as required in this Code section. On the trial of the motion, the burden of proof shall be upon any plaintiff who objects to the timeliness of the motion to establish that the motion was not filed within the time provided for by this Code section.”

Five Star contends the court erred by denying its motion because the statute requires receipt of actual notice of. the default judgment, and none was received until September 1, 1992, when the postjudgment interrogatories were personally served. It argues that although a different statute, OCGA § 18-4-64 (a) (2), which governs notice to the debtor of the issuance of the summons of garnishment, provides that the debtor’s refusal to accept notice sent by certified mail is deemed to satisfy the notice requirement, OCGA § 18-4-91 includes no such provision, and its absence must be construed as an indication that a garnishee’s refusal of the notice does not satisfy the statute’s requirement of “actual notice.”

Where no proceeding is pending between the parties at the time a notice is required to be given, due process requires personal service of the notice. Henry v. Hiawassee Land Co., 246 Ga. 87, 88-89 (269 SE2d 2) (1980). Thus, initiation of garnishment proceedings must be accomplished with personal service of the summons of garnishment upon the garnishee. OCGA § 18-4-62 (a). Default judgment may be taken against the garnishee if the garnishee fails or refuses to file an answer 60 days after having been personally served with the summons. OCGA § 18-4-90. Notice to the garnishee by certified mail of the entry of a default judgment is “sufficient notice as required in this Code section.” OCGA § 18-4-91.

Having been personally served at the outset of the proceeding, and default judgment having been entered only by virtue of the garnishee’s failure or refusal to respond in appropriate fashion, this provision does not offend the requirement of due process.

In some instances, particular statutes or contracts mandating notice are not complied with unless or until the notice is actually received. See, e.g., Hamilton v. Edwards, 245 Ga. 810 (267 SE2d 246) (1980) (notice of change in tax assessment); Menke v. First Nat. Bank, 168 Ga. App. 495, 498-500 (1) (309 SE2d 835) (1983) (acceleration notice in promissory note). In various other contexts, however, it is unnecessary to show receipt; failure to accept registered or certified mail is equivalent to receipt, given proper addressing and mailing. See, e.g., McCollum v. Pope, 261 Ga. 835 (411 SE2d 874) (1992) (actual receipt of OCGA § 44-14-162.2 notice of initiation of proceedings to exercise the power of sale in a mortgage, security deed, or other lien contract is immaterial); Crenshaw v. Ga. Underwriting Assn., 202 Ga. App. 610, 611 (414 SE2d 915) (1992) (certified letter from trial court notifying attorney of costs for preparing record on appeal sent to most recent address and returned “unclaimed” deemed received); Hill v. Fed. Employees Credit Union, 193 Ga. App. 44, 45-46 (2) (b) (386 SE2d 874) (1989) (debtor need not actually receive notice required under OCGA § 10-1-36 before sale of repossessed motor vehicle, and debtor “may not evade notification by refusing to accept certified mail”); King v. State, 179 Ga. App. 184 (345 SE2d 902) (1986) (evidence that Department of Public Safety mailed OCGA § 40-5-58 notice of habitual violator status certified mail return receipt requested to last known address is prima facie evidence that notice was received despite absence of signature of addressee on receipt); Williams v. Runion, 173 Ga. App. 54, 59-60 (5) (325 SE2d 441) (1984) (service of OCGA § 51-12-14 notice of claim for interest on unliquidated damages complete upon proper mailing; receipt not required).

In determining whether notice required under a specific statute must be received, the language of the particular statute in issue must be interpreted in accordance with recognized principles of construction, in each case keeping in mind that the cardinal rule is to seek diligently the intention of the legislature and effectuate the statute’s purpose. Statutes must be construed as well so as to square with common sense and sound reasoning. “ ‘It is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.’ . . . [Cit.]” (Emphasis omitted.) General Elec. &c. Corp. v. Brooks, 242 Ga. 109, 112 (249 SE2d 596) (1978).

In addition to authorizing a plaintiff’s use of an inexpensive, efficient means of notifying a garnishee of the entry of a default judgment, OCGA § 18-4-91 is clearly a remedial statute. It provides a second chance for a garnishee who, having been personally served with a summons of garnishment, ignored its call for an answer. A limited window of opportunity is afforded such a garnishee through which it can reduce a debt imposed by its initial inaction.

We conclude that it was not the legislature’s intention to allow such a garnishee to unilaterally enlarge the statutory window simply by repeating its failure to act and ignoring the notice. Such a construction would make the certified mail method of notice dependent on a defaulting garnishee’s diligence in retrieving the mail. It would also penalize a plaintiff who has faithfully followed the procedure for notice set forth in the statute. The procedure, having been rejected by the garnishee, would have to be abandoned and another more costly method utilized. Delay would work to the garnishee’s advantage. We hold, therefore, that when the garnishee fails or refuses to claim a notice by certified mail given under OCGA § 18-4-91, the 60-day period in which the garnishee may move for modification of a default judgment begins to run on the date of the first attempted delivery of such notice, provided the notice is correctly addressed and contains adequate postage.

Decided May 24, 1993.

Porter & Doster, Sidney R.. Barrett, Jr., for appellant.

Ronald W. Parnell, for appellee.

Judgment affirmed.

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


text:
    A93A0111.
    TREBOR CORPORATION v. NUTMEG INDUSTRIES, INC.
    (431 SE2d 402)
   Johnson, Judge.

Nutmeg Industries, Inc., manufacturers of plugs used to seal holes bored in connection with termite control, brought an action on account against Trebor Corporation, its distributor. Trebor denied the indebtedness and filed a counterclaim for breach of the distributorship agreement. The trial court granted Nutmeg’s motion for sum-. mary judgment on both the main claim and the counterclaim, reserving the issue of attorney fees. Trebor files this appeal asserting that the trial court erred in entering summary judgment because genuine issues of material fact remain regarding both the main and counterclaims.

1. Although Trebor denied the indebtedness in its answer, Nutmeg submitted a letter from Trebor’s attorney received prior to the initiation of the suit, which acknowledged a debt of $24,817.53. At his deposition, Robert Black, Trebor’s principal, admitted that the sum had still not been paid. “ ‘When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise as provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment. . . shall be entered against him.’ OCGA § 9-11-56 (e).” Lightwerk Studios v. Door Units of Ga., 191 Ga. App. 756, 757 (3) (382 SE2d 699) (1989). Trebor’s only contention is that an oral contract between Trebor and Nutmeg establishing a permanent distributorship allowed a set-off for advertising expenses. Even if such a contract was enforceable, Black’s affidavit submitted in opposition to Nutmeg’s motion for summary judgment sets forth no specific amount to which he believes he is entitled. “Mere conclusions are not sufficient to withstand specific facts. A party opposing a motion for summary judgment, where the moving party has presented evidence of the necessary certitude, must, in his opposing affidavits, set forth specific facts showing a genuine issue to be decided.” (Citations and punctuation omitted.) Beamon v. Ga. Power Co., 199 Ga. App. 309, 313 (404 SE2d 463) (1991). Trebor did not meet its statutory burden and summary judgment was properly entered on the principal amount.

Decided April 27, 1993 —

Reconsideration denied May 25, 1993

George R. Dean, for appellant.

Hunton & Williams, Alan M. Wolper, for appellee.

With regard to the award of prejudgment interest, we find that the invoices were a liquidated debt on a commercial account and were therefore subject to prejudgment interest pursuant to OCGA § 7-4-16. See Dalcor Mgmt. v. Sewer Rooter, 205 Ga. App. 681, 683 (4) (423 SE2d 419) (1992). The trial court did not err in awarding prejudgment interest.

2. In its counterclaim, Trebor seeks lost profits stemming from sales made by Nutmeg to its former customers for a period of six months following the end of their relationship. This claim is based on “customs of the trade” and Trebor does not assert that the damages it seeks are commissions earned but not yet compensable. See Arford v. Blalock, 199 Ga. App. 434 (3) (405 SE2d 698) (1991). The trial court found that the parties had entered into an oral contract for a permanent distributorship, and that such contracts are unenforceable. As this court held in Atlanta Dairies Cooperative v. Grindle, 182 Ga. App. 409, 410 (1) (356 SE2d 42) (1987): “The Statute of Frauds would render [Trebor’s] alleged oral contract for a ‘permanent’ distributorship unenforceable. ‘Such a contract must be in writing.’ (Cit.)” OCGA § 11-1-205 (3), which allows evidence of a course of dealing between parties and any usage of trade to give particular meaning to and supplement or qualify terms of an agreement, is predicated upon the existence of an underlying agreement. White Lumber Sales v. C. Brinson Lamb & Sons Lumber, 121 Ga. App. 702, 703 (175 SE2d 81) (1970); White & Assoc. v. Decker & Hallman, 203 Ga. App. 14, 15 (1) (416 SE2d 352) (1992). There being no valid underlying agreement, we find that the trial court correctly concluded that Trebor’s “custom of the trade” argument was without merit. Entry of summary judgment in favor of Nutmeg on Trebor’s counterclaim was not error.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge John W. Sognier concur.


text:
    A93A0201.
    FOSTER v. THE STATE.
    (431 SE2d 400)
   Johnson, Judge.

Willie James Foster appeals from his conviction of possession of cocaine and the denial of his motion for a new trial.

1. Foster contends that the trial court erred in denying his motion to suppress the cocaine because it was seized pursuant to an illegal detention. “As a general rule, a police officer is authorized to make a brief, investigatory detention of an individual where the intrusion can be justified by specific, articulable facts giving rise to a reasonable suspicion of criminal conduct. What is demanded of the police officer, as the agent of the state, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.” (Citations and punctuation omitted.) Hadaway v. State, 190 Ga. App. 5 (1) (378 SE2d 127) (1989). Here, the police officer testified at the suppression hearing that he received a call that illegal drug activity was taking place on Ninth Street behind Bush & Bush Cafe. After entering the area, the officer observed Foster rapidly walking down Ninth Street. The officer knew Foster and was aware that he had a prior drug conviction. The officer pulled his police car alongside Foster and asked to speak with him. Foster told the officer that he had not done anything, dropped a black leather bag on the ground and ran. The officer got out of his car, retrieved the bag and apprehended Foster. In the bag, the officer found cocaine. The officer arrested Foster and charged him with possession of cocaine.

Under these circumstances, the officer’s brief detention of Foster was justified by specific articulable facts giving rise to a suspicion of criminal conduct. A police officer is permitted to conduct a brief investigatory stop “where the officer observes unusual conduct which, when viewed in the light of his experience, causes him to conclude that the individual is involved in criminal activity.” (Citations and punctuation omitted.) Clark v. State, 183 Ga. App. 838, 839 (1) (360 SE2d 447) (1987). The trial court did not err in denying Foster’s motion to suppress.

2. Foster contends that there was insufficient evidence to support his conviction because of conflicts in the testimony of the State’s witnesses. It is well settled that the weight of the evidence and the credibility of witnesses are questions for the jury. Willis v. State, 201 Ga. App. 182, 183 (410 SE2d 377) (1991). Having reviewed the evidence in the light most favorable to the verdict, we find that there was sufficient evidence such that a rational trier of fact could have found Foster guilty of possession of cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge John W. Sognier concur.

Decided April 27, 1993 —

Reconsideration denied May 25, 1993.

Lindsey & Jacobs, Tamara Jacobs, for appellant.

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


text:
    A93A0223.
    WADE v. THE STATE.
    (431 SE2d 398)
   Johnson, Judge.

Anthony Deon Wade was convicted of criminal attempt to commit armed robbery, aggravated assault, and possession of a firearm during the commission of a crime in connection with an incident in the parking lot of a shopping mall. Wade’s motion for a new trial was denied and the trial court entered an order allowing this out-of-time appeal.

1. Wade complains that the trial court erred in allowing a police officer to testify that an eyewitness, who was not present and available to testify at trial, identified Wade from a photographic lineup as the perpetrator of the crimes charged. Wade claims that the officer’s testimony was inadmissible hearsay. In admitting the evidence, the trial court relied on Woodard v. State, 175 Ga. App. 449 (333 SE2d 645) (1985), in which we held: “A law enforcement officer is permitted to testify to a vocal fact of identification witnessed by himself without its being subject to a hearsay objection. Such testimony is not offered under the provisions of OCGA § 24-3-2.” (Citations and punctuation omitted.) Id. at 450 (3). Wade concedes that Woodard is controlling, but urges us to overrule it.

Even if we agree that Woodard should be overruled, we are not able tó overrule it because in Haralson v. State, 234 Ga. 406 (216 SE2d 304) (1975), the Georgia Supreme Court held that “[testimony by the police officer who conducted a line-up as to the identity of persons picked out of such line-up by other witnesses . . . was not subject to the objection that it was hearsay.” Id. at 408 (4). Thus, Haralson would remain as the controlling authority and we would be constrained to follow it even if Woodard did not exist.

We believe the decisions in Haralson and Woodard are incorrect because they are obvious deviations from the hearsay rule which are not based on sound legal reasoning. A review of the etiology of the Woodard decision reveals the lack of legal foundation for the proposition that such testimony is not hearsay. Woodard cites but does not address the issues raised in Gibson v. State, 160 Ga. App. 615 (287 SE2d 595) (1981). In Gibson, the subject of extrajudicial identification of a defendant is discussed in detail, and we noted that “it is not a settled question that testimony of an absent witness as to the identification of a defendant as the perpetrator is admissible for the truth of the matter asserted.” (Emphasis in original.) Id. at 618 (3). After a thorough analysis, the Gibson court concluded that it could not reach the issue, as a proper objection to the evidence had not been preserved for appeal. Rather, Woodard relies upon Bruce v. State, 142 Ga. App. 211 (235 SE2d 606) (1977), in which it was held that “(a) law enforcement officer is permitted to testify to a vocal fact of identification witnessed by himself without its being subject to a hearsay objection.” Id. at 213 (2).

Bruce relies upon the Supreme Court’s decision in Haralson v. State, supra, which is quoted above. Haralson refers us to Jackson v. State, 225 Ga. 39, 47 (9) (165 SE2d 711) (1969), which purports to address the issue of whether the “testimony of a police officer as to line-up identification of the appellant by the victim . . . was mere hearsay.” The court concludes that the testimony was not hearsay, but the analysis by which the conclusion is reached examines a different issue, i.e., conflicts in the officer’s testimony. The cases cited in that discussion refer to the admissibility of inconsistent testimony rather than hearsay. We question, therefore, whether in deciding Haralson, the Supreme Court’s reliance upon Jackson was well-placed. Despite our reservations about the evolution of the rule and our concerns as to whether or not it represents “good law,” we are constrained at this time to follow it.

2. Wade’s second enumeration asserts that trial counsel was ineffective because his objection to the testimony discussed in Division 1 was based only on hearsay grounds and did not preserve an objection based on a violation of Wade’s Sixth Amendment right to confrontation. “Pursuant to the two-prong test enunciated in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), defendant must meet two tests in order to prevail on his ineffective assistance of counsel claim: 1) he must show that the trial counsel’s performance was deficient in that he made errors so serious that he was not functioning as the ‘counsel’ guaranteed defendant by the Sixth Amendment; 2) defendant must show that the defense was prejudiced by the deficient performance so that defendant was deprived of a fair trial, one whose results were reliable. . . . Regarding the second prong of the test, the defendant must show that the deficient performance actually prejudiced the defense. In other words he must show there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s unprofessional errors.” (Citations and punctuation omitted.) Concepcion v. State, 205 Ga. App. 138, 139 (421 SE2d 554) (1992). Wade has failed to show any prejudice resulting from counsel’s failure to object to the testimony on this ground. In addition to the testimony of the victim and one eyewitness identifying Wade as the perpetrator, the license tag number of the truck which Wade drove from the scene was noted. The owner of the truck testified that he had loaned the truck to Wade on that day and that a gun was in the truck. Considering the totality of the evidence we conclude that trial counsel’s failure to object to the testimony on a second ground did not affect the outcome of the case. The trial court’s finding that Wade was afforded effective assistance of counsel must be upheld unless clearly erroneous. See Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990). We find Wade’s enumeration of error relating to ineffective assistance of counsel to be without merit.

Decided April 27, 1993 —

Reconsideration denied May 25, 1993.

Charles R. Sheppard, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Scott A. Drake, Assistant District Attorneys, for appellee.

Judgment affirmed.

Senior Appellate Judge John W. Sognier concurs. Blackburn, J., concurs in judgment only.


text:
    A93A0010.
    MEEKER v. EUFAULA BANK & TRUST.
    (431 SE2d 475)
   Blackburn, Judge.

This appeal arises from an action to collect a deficiency owed by the appellant to the appellee, the Eufaula Bank & Trust, following foreclosure on certain real property located in Eufaula, Alabama.

From March 1987 until October 1989, the appellant executed a series of promissory notes and renewal notes in favor of the appellee, which were secured by two mortgages, totalling $23,000, on the property in question. The last note was executed on October 1, 1989, and provided that payment of the principal amount of $25,253.62 was due on March 30, 1990; interest was due quarterly. The note also provided that default would occur upon failure to make a payment on time or in the amount due.

On December 30, 1989, the appellee billed the appellant for the interest due on the note. Payment of $772.26 was tendered by check on January 31, 1990, but the check was dishonored due to insufficient funds. Although the appellee was not required to give notice of default under the note, it attempted to do so by registered mail, but the notice was returned unclaimed. The appellee then began foreclosure proceedings, which culminated in the appellee’s purchase of the property for $17,500 on March 26, 1990. The sale was never confirmed. Shortly thereafter, the appellee sold the property to the adjacent property owner for the same price.

Subsequently, the appellee commenced this action to collect the deficiency and $551 owing on an unsecured line of credit, and at the trial of the matter obtained a directed verdict for a total of $10,058.85. This appeal followed.

1. Six days before the scheduled trial in the matter, the appellant moved for leave to file a counterclaim alleging wrongful foreclosure, but the trial court denied that motion. The appellant contends that leave to assert the counterclaim should have been granted in the interest of justice.

OCGA § 9-11-13 (f) provides that “[w]hen a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.” Even if “oversight, inadvertence, or excusable neglect” are absent, a trial court should allow the counterclaim when justice requires; however, “[w]hether justice requires the grant of leave to set up an omitted counterclaim is a matter which addresses itself to the sound discretion of the trial court. [Cit.] ” White v. Fidelity Nat. Bank, 188 Ga. App. 539, 540 (373 SE2d 640) (1988).

The basis for the counterclaim stated by the appellant was that a wrongful foreclosure had occurred because the sale took place on March 26, 1990, four days before the principal was due under the note. The appellant explained her failure to assert the counterclaim earlier by stating that until the appellee filed its brief in support of a motion for summary judgment on June 26, 1992, she was unaware that the appellee’s basis for recovery was the promissory note with the due date of March 30, 1990. The appellant’s explanation, however, is contradicted by the record, in that a copy of that note was attached to the appellee’s first amendment to its complaint filed on September 17, 1991. Further, the explanation overlooks the fact that the actual default authorizing foreclosure was the appellant’s failure to pay the interest due under the note. Under these circumstances, the trial court did not abuse its discretion in disallowing the appellant’s assertion of the counterclaim.

2. At the close of the evidence, both parties moved for directed verdict, and the trial court granted the appellee’s motion. The appellant contends that the trial court instead should have directed a verdict for her, because the appellee had failed to prove the Alabama law upon which it relied to prove its right ,to seek a deficiency without having the foreclosure sale confirmed.

Three separate Code sections pertain to proof of laws of another state. OCGA § 24-7-24, dealing with the authentication of foreign laws or judicial records, provides perhaps the most certain method of producing admissible evidence of another state’s law. OCGA § 24-1-4 allows judicial cognizance, without the introduction of such proof, of the laws of other states “as published by authority.” OCGA § 9-11-43 (c), the most recently enacted of the three statutes, requires reasonable notice by the party relying upon foreign law, and provides that “[t]he court, in determining such law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the rules of evidence. The court’s determination shall be treated as a ruling on a question of law.”

Whether judicial notice of a foreign law may be taken under OCGA § 24-1-4 usually depends upon a determination of the requirement “as published by authority.” In Carter v. Graves, 206 Ga. 234 (56 SE2d 917) (1949), the Supreme Court held that the Pacific Reporter was not shown to be such a publication as is published by authority so as to authorize the trial court to take judicial notice of California court decisions contained therein. However, in Smith v. Davis, 121 Ga. App. 704, 707 (3) (175 SE2d 28) (1970), this court found that Carter had been superseded by the 1968 enactment of Code Ann. § 81A-143 (c) (now OCGA § 9-11-43 (c)), and held that “the trial court was authorized to consider the reports of Florida cases appearing in the Southern Reporter as a relevant source of Florida law to determine the substantive law applicable. . . .”

In further considering the applications of OCGA §§ 24-1-4 and 9-11-43 (c) in Swafford v. Globe American Cas. Co., 187 Ga. App. 730 (371 SE2d 180) (1988), this court noted that the historic basis for requiring proof or authentication of foreign law, i.e., the inaccessibility of published authority of such foreign law, no longer existed. We went on to hold that where a party gives reasonable notice of intent to rely on foreign law, the trial court has a duty, as well as the right, to refer to and consider the foreign law “as published by authority,” whether or not the party produced it. Further, although slip opinions of appellate decisions from another state did not meet the requirement of “as published by authority,” court decisions of that state published in the Southwestern Reporter Second did. Id. at 733-734.

In summary, from the above it appears that authentication of foreign law pursuant to OCGA § 24-7-24 renders that evidence of foreign law admissible, and perhaps constitutes the most certain method of proving foreign law, but it is not the exclusive means of introducing foreign law in a case. Under OCGA § 24-1-4, a trial court has a duty to take judicial notice of foreign law if “published by authority,” without introduction of any proof of that law. Further, under OCGA § 9-11-43 (c), where a party gives reasonable notice of intent to rely on foreign law, the trial court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible in evidence.

In the instant case, it was undisputed that the appellee did not have the foreclosure sale confirmed. Georgia law allows no action to collect a deficiency unless the person who instituted the nonjudicial foreclosure proceeding timely reported the sale for confirmation. OCGA § 44-14-161 (a). For that reason, the appellee’s claim for a deficiency in this case depended upon the application of Alabama law and the absence in that Alabama law of any requirement for confirmation of a nonjudicial foreclosure sale.

The appellee did not prove the pertinent Alabama law by authentication under OCGA § 24-7-24. Rather, it presented copies of the Code of Alabama regarding mortgages and copies of two decisions of the Alabama Supreme Court published in the Southern Reporter, and requested that the trial court take judicial notice of the Alabama law. The appellant concedes that the appellee gave reasonable notice of its intent to rely upon Alabama law, and under Swafford v. Globe American Cas. Co., supra, and Smith v. Davis, supra, the trial court properly took judicial cognizance of the substantive Alabama law contained in the Alabama Code sections and Supreme Court decisions presented to it by the appellee.

The appellant contends that the Alabama statutes and court decisions neither indicate nor contraindicate a requirement of confirmation of a nonjudicial foreclosure sale, and thus provide no legal foundation for finding that Alabama law does not require confirmation prior to seeking a deficiency. However, as pointed out by the appellee, with regard to the Alabama statutes, the apparent reason why no mention is made of the need for a confirmation (or lack thereof) is that no such requirement exists. Similarly, in Continental Cas. Co. v. Brawner, 148 S 809, 811 (Ala. 1933), the Alabama Supreme Court held that “if a sale is made in strict conformity with the power contained in the mortgage or deed of trust, and enough is not realized to satisfy the claims of the mortgage or trust deed, an action may be maintained, in a court of law, against the mortgagor ... for the deficiency.” In short, the Alabama statutes and Supreme Court decisions before the trial court authorized finding that Alabama law did not require confirmation before seeking a deficiency.

The appellant also contends that even if Alabama law applied, the foreclosure sale should be invalidated because it did not comply with that law, and because there was such a great disparity between the price obtained at the sale and the fair market value of the property. With regard to the procedures required for a nonjudicial foreclosure, the evidence showed that the appellee gave notice of the sale by newspaper publication once a week for three consecutive weeks, and that the sale occurred in the county in which the property was located, as required by the Code of Alabama §§ 35-10-7 and 35-10-8.

Decided May 25, 1993.

Peter G. Williams, for appellant.

Cecil M. Cheues, Page, Scrantom, Harris & Chapman, Gary O. Bruce, for appellee.

Concerning the foreclosure sale price, “ ‘[a] sale under a power contained in a mortgage or trust deed is always presumed to be regular and valid, and mere inadequacy in the price bid does not in itself invalidate or affect the sale, otherwise properly conducted, unless it is so great as to shock the conscience of the court, and especially in the absence of a showing that a larger price could be obtained on a resale.” Hunter-Benn & Co. v. Bassett Lumber Co., 139 S 348, 354 (Ala. 1932). The foreclosure sale price of $17,500 obtained by the appellee could not reasonably shock the conscience of any court, under the evidence adduced in this case.

The appellant testified that she purchased the property for $20,000, paying $5,000 down and financing the remainder. At the time of the original loan of $15,000 secured by the property, the property was appraised at $23,500, provided certain repairs be made (roof repair, exterior paint, and cleaning). The adjacent property owner testified that he had offered $15,000 for the property at the foreclosure sale, but the offer had been rejected as too low. Ultimately, he decided to buy the property for the same price paid by the appellee at the sale, because the property was worth a little more to him since it was adjacent to his other property. His description of the property revealed that it needed a great deal of repair. Specifically, the roof of the house and the front and back porches badly needed repair, and interior repairs had only been started. As evidence of valuation of the property, the appellant offered only a hearsay statement that the house had been appraised at $33,000 before the foreclosure.

The appellant presented no defense to the indebtedness asserted by the appellee. In fact, in testifying about her unsuccessful efforts to sell the property prior to the foreclosure, she acknowledged that she had realized that she would have to sell the property “to make clear with the bank.” Accordingly, there being no genuine factual or legal issues about the applicability of Alabama law, the absence of any Alabama requirement for confirmation of a nonjudicial foreclosure sale prior to seeking a deficiency, or the appellant’s indebtedness to the appellee, the trial court properly directed a verdict for the appellee.

Judgment affirmed.

Johnson and Smith, JJ., concur.