author: Judge Harold R. Banke.

text:
    A96A1776.
    PRICE v. THE STATE.
    (478 SE2d 915)
   Judge Harold R. Banke.

Dexter E. Price was convicted of possession of cocaine with intent to distribute. Following the denial of his motion for new trial, Price enumerates seven errors.

Based on an informant’s tip, the Decatur County Sheriff’s Office organized a surveillance team to intercept Price’s co-defendant, Willie Buggs, who was reportedly bringing a large quantity of cocaine from Florida and driving “a yellow or beige-colored, older model Chevrolet Impala with an Alabama tag.” While on stake-out, Investigator Frank Green observed Buggs’ vehicle traveling north from the Florida border. As Green watched the vehicle approach his position, it suddenly stopped and reversed direction. Green radioed the others that the vehicle was attempting to elude.

Buggs pulled into the driveway of an old house and he and his two passengers, Nathaniel Blocker and Price immediately exited the vehicle. Blocker, a co-defendant who ultimately pleaded guilty, testified that as they stopped, Buggs handed Price cocaine wrapped in a paper towel and instructed him to “Run, Dex, Run.” Officer James Morris, the first to arrive at the driveway, intercepted both Buggs and Blocker. Despite being commanded by Morris to stop, Price ran out of view behind the house while clutching something in his hand. Within about 10 to 15 minutes, investigators discovered 29 pieces of cocaine wrapped in a paper towel on the ground located next to a child’s toy under a little makeshift shed at the rear of the house. The paper towel had a blue oak leaf and red acorn design just like another paper towel later found during a search of Buggs’ car. A microanalysis of the paper towel used to wrap the cocaine disclosed a hair fragment determined to be consistent with Negroid hair. Price and the other two defendants are black. In a voluntary custodial interview made less than two hours later, Price stated that when the vehicle stopped in the yard he was scared. He claimed that Willie [Buggs] passed him [the cocaine] and told him to jump out and he ran. Price and Buggs were tried and convicted together. Held:

1. We reject Price’s contention that the trial court erred by not suppressing the cocaine seized and his custodial statement.

By running away from a vehicle suspected of being used to transport cocaine, carrying something in his hand, and attempting to avoid contact with police, Price’s conduct created reasonable, articulable facts which at a minimum justified his detention. Compare Von-Linsowe v. State, 213 Ga. App. 619, 621 (445 SE2d 371) (1994).

“A ‘warrantless arrest’ is constitutionally valid if at the time of the arrest the arresting officer has probable cause to believe the accused has committed or is committing the offense. (Cits.)” Burnham v. State, 265 Ga. 129, 130 (2) (453 SE2d 449) (1995). Here, the police observed Price’s suspicious behavior as he ran away, found cocaine in the backyard where they had seen him flee, and noticed the paper towel wrapped around the cocaine matched the distinctive pattern of a similar paper towel found in Buggs’ car. Thus, Price’s post-arrest inculpatory statement to the police was not tainted by an illegal arrest and did not require suppression. See Moore v. State, 263 Ga. 11 (1) (427 SE2d 766) (1993). Nor did Price have a reasonable expectation of privacy or standing to contest the search of a yard belonging to a stranger. Sanders v. State, 181 Ga. App. 117, 118-119 (1) (351 SE2d 666) (1986).

2. Price contends that the trial court improperly restricted him from asking a prospective juror whether she wanted the prosecutor’s side to prevail. To preserve an issue as to error in the conduct of voir dire, objection must be made in the trial court. State v. Graham, 246 Ga. 341, 343 (271 SE2d 627) (1980). Price’s failure to object to the alleged error precludes appellate review. Id.

3. Price contends that the trial court erred by denying his motion under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) after the State exercised four of four peremptory challenges against black veniremen. See Ford v. State, 262 Ga. 558 (423 SE2d 245) (1992). Despite this showing, the trial court summarily denied the motion finding the defense had failed to set forth a prima facie case under Batson. The fact that the State used 100 percent of its strikes against blacks suggested a prima facie case obligating the State to offer clear and reasonably specific explanations of legitimate reasons as to each strike. Smith v. State, 263 Ga. 224, 226 (4) (430 SE2d 579) (1993); Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987).

After the trial concluded and the court sentenced Price to 30 years imprisonment, it then permitted the State to articulate its reasons for each peremptory strike. The prosecutor asserted that two of the stricken jurors had personal relationships with members of Price’s family and the transcript of voir dire supports this claim. The other, two prospective jurors were purportedly stricken for reasons not elicited during voir dire. The prosecutor stated that three stolen vehicles were discovered in the body shop of one stricken juror; his son was caught driving a stolen car; and his brother had some connection with drug-related offenses. The prosecutor asserted that the other juror (#123) was from a family with a reputation for selling drugs and his brother had been banned from Decatur County for criminal conduct. At the conclusion of the State’s proffer, the court found that the State had offered race-neutral reasons for the exercise of its peremptory challenges.

Unless a discriminatory intent is inherent in a proponent’s explanation of a strike, the reason offered will be deemed race-neutral. Jackson v. State, 265 Ga. 897, 898 (2) (463 SE2d 699) (1995). See Smith v. State, 264 Ga. 449 (1) (448 SE2d 179) (1994).

The trial court had the opportunity to observe firsthand the four veniremen and to determine whether the State’s explanations were race-neutral and lacking in discriminatory intent. Trammel v. State, 265 Ga. 156, 157 (2) (454 SE2d 501) (1995). After reviewing the transcript, and giving the trial court’s finding great deference, we are not able to conclude that the trial court’s determination was clearly erroneous. Minor v. State, 264 Ga. 195, 197 (5) (442 SE2d 754) (1994); Sorrells v. State, 218 Ga. App. 413, 414 (2) (461 SE2d 904) (1995).

4. The trial court did not err in denying Price’s motion .for a directed verdict on the issue of in-court identification. Police photographed Price at the scene, arrested him on the spot, and took his statement less than two hours later. The issue of identity is a question of fact for jury determination and here, the evidence was sufficient to enable a rational trier of fact to find Price guilty of possession with intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

5. The trial court did not err in admitting Price’s redacted statement. Because both Price and his co-defendant Buggs made custodial statements and were being tried together, to prevent a problem under Bruton, the trial court admitted only redacted versions of their statements which omitted any inculpatory comments about each other. See Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968) (holding the right of confrontation is violated when several co-defendants are tried jointly and a non-testifying defendant’s confession is used to implicate another defendant). Examining both redacted statements, we find that Buggs’ statement did not directly incriminate Price so as to trigger a Bruton violation. Having concluded that the redacted statement did not directly implicate Price, we need not determine whether it was highly prejudicial. McDonald v. State, 210 Ga. App. 689, 690 (2) (436 SE2d 811) (1993).

Nor do we find that a police officer’s testimony which paraphrased Price’s statement created a false impression concerning the extent of Price’s involvement with the cocaine. The redacted statement disclosed that Price admitted that when the vehicle stopped in the yard, he [Price] “ran with the paper towel that contained cocaine.” This version did not distort Price’s actual statement that “Willie [co-defendant Buggs] passed it [the cocaine] to me and said jump out” and “[h]e advised [me] the cocaine was in the napkin.” Moreover, Blocker, the other passenger who pleaded guilty, corroborated Price’s redacted statement by testifying that Buggs reached in his pocket with his right hand, pulled out a balled up paper, gave it to Price and instructed him to run. In any event, given the overwhelming evidence of Price’s guilt, the admission of the statement was harmless error. Guimond v. State, 259 Ga. 752, 755 (3) (386 SE2d 158) (1989).

6. The trial court did not err in denying a mistrial predicated on alleged prejudicial statements by the prosecutor. Although Price contends that the prosecutor improperly inflamed the jury by making reference to babies being kicked in the head and people being shot on subways due to drugs, he failed to support this argument with citation to the record. Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (389 SE2d 251) (1989) (not this Court’s function to cull the record on a party’s behalf); Court of Appeals Rule 27 (c) (3) (i). Nor has Price provided any citation to the transcript showing that he interposed an objection to the alleged remarks. Accordingly, there is nothing preserved for appellate review. Jackson v. State, 213 Ga. App. 420, 421 (444 SE2d 854) (1994).

Decided December 4, 1996.

Paul Fryer, for appellant.

J. Brown Moseley, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

7. Price contends that the trial court erred in its charge on knowledge and improperly denied his requested charges on accident, accessory after the fact, and specific intent. We disagree. The trial court did not err by giving a charge on knowledge that did not explain or define “conspirator.” Although the charge deviated slightly from the pattern charge on knowledge, the meaning of “conspirator” was clear in the context of the charges as a whole. See Rhodes v. State, 221 Ga. App. 792, 794 (5) (470 SE2d 790) (1996); Rowell v. State, 176 Ga. App. 309, 310 (3) (335 SE2d 689) (1985).

The trial court properly denied the requested charges on accident and accessory after the fact because these charges were not supported by the evidence. Harris v. State, 202 Ga. App. 618, 621 (4) (c) (414 SE2d 919) (1992); see Moore v. State, 240 Ga. 210, 211 (1) (240 SE2d 68) (1977). Nor was Price charged as an accessory under OCGA § 16-10-24. See Martinez v. State, 222 Ga. App. 497, 499-500 (2) (474 SE2d 708) (1996). The trial court also correctly rejected a requested charge necessitating that the State prove a “specific intent” to commit the crime of possession with intent to distribute. OCGA § 16-13-30 (b) contains no such requirement.

Judgment affirmed.

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

       When making the Batson motion, counsel asserted that the State had used three of three strikes against black veniremen. Later, the record was corrected to show that the State used four of four strikes against blacks.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A96A2195.
    CARRASQUILLO v. THE STATE.
    (479 SE2d 202)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with three counts of trafficking in cocaine and four counts of violating Georgia’s Controlled Substances Act (three counts of possession of cocaine with intent to distribute and one count of possession of more than an ounce of marijuana). This appeal followed the trial court’s denial of defendant’s plea of former jeopardy. Held'.

In his sole enumeration of error, defendant contends a previous civil forfeiture proceeding relating to the criminal activity in question in the case sub judice placed him in jeopardy and thus prohibits further prosecution on the above criminal charges. This argument is without merit for the reasons stated in Murphy v. State, 219 Ga. App. 474 (465 SE2d 497), affirmed in 267 Ga. 120 (475 SE2d 907).

Decided December 4, 1996.

Steven H. Sadow, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


author: Ruffin, Judge.

text:
    A96A1424.
    GRIFFIN MOTEL COMPANY v. STRICKLAND. GRIFFIN MOTEL COMPANY v. SCOGGINS. GRIFFIN MOTEL COMPANY v. REDDING.
    A96A1425.
    A96A1426.
    (479 SE2d 401)
   Ruffin, Judge.

Charles Strickland, Edgar Scoggins and William Redding sued Griffin Motel Company (“Griffin Motel”) for damages sustained in an automobile collision involving only one vehicle. Thomas Strickland, the father of Charles Strickland, Scoggins and Redding were passengers in the vehicle, which was driven by John Wilson. Thomas Strickland was killed in the collision. Charles Strickland, Scoggins and Redding argue that Griffin Motel proximately caused the collision because it knowingly furnished and served alcoholic beverages to Wilson, who was at the time noticeably intoxicated, knowing that Wilson would soon be driving a motor vehicle. Griffin Motel filed a motion for summary judgment, arguing that Charles Strickland, Scoggins and Redding were barred from suing the motel because they were “consumers” within the meaning of OCGA § 51-1-40 (b). The trial court denied its motion, and Griffin Motel appeals from these orders. For reasons which follow, we affirm.

“[SJummary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991). Viewed in that light, the record shows the following. At approximately 2:00-3:00 p.m., Redding arrived at the motel to either visit his wife, who worked as a housekeeper at the motel, or to visit Scoggins, who was the motel’s maintenance man. While there, the motel’s air-conditioning system malfunctioned. Redding called Thomas Strickland, an electrician and a good friend, to repair the system. Thomas Strickland and a friend arrived at the motel at approximately 5:30 p.m. and repaired the system. In the meantime, Wilson arrived at the motel to give Scoggins a ride home. Scoggins’ shift at the motel ended at 5:30 p.m. In lieu of payment for their services, the motel’s general manager took Redding and Strickland, together with the other men, to the bar and bought each of them two drinks. After buying the two drinks, the general manager left. The others remained at the bar drinking.

At some point during the evening, the friend who arrived with Thomas Strickland took Strickland’s vehicle. Scoggins left the bar and went to Wilson’s truck to sleep. Between 15 and 20 minutes later, Kathy White, the motel’s bartender, went to the truck and awakened Scoggins to assist her in. helping Strickland, who had fallen. The desk clerk found Strickland drunk and sitting against a wall next to the pool. According to White, all of the men had the same number of mixed drinks except for Wilson, who had one more than the others. The desk clerk observed the truck as it left the motel at approximately 10:00 p.m. As Wilson was driving the truck home, he missed a curve and lost control of the vehicle.

1. Griffin Motel asserts that the trial court erred in denying its motion for summary judgment because the trial court misinterpreted OCGA § 51-1-40 (b). According to Griffin Motel, the statute barred Strickland, Scoggins and Redding’s suit because they were “consumers” within.the meaning of the statute. We disagree.

OCGA § 51-1-40 (b) provides, in part, that “(a] person . . . who knowingly sells, furnishes, or serves alcoholic beverages to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle, may become liable for injury or damage caused by or resulting from the intoxication of such'. . . person when the sale, furnishing, or serving is the proximate cause of such injury or damage.” It further provides that “[njothing contained in this Code section shall authorize the consumer of any alcoholic beverage to recover from the provider of such alcoholic beverage for injuries or damages suffered by the consumer.” Id.

“In construing the Act [OCGA § 51-1-40], we look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.’ [Cit.]” Riley v. H & H Operations, 263 Ga. 652, 654 (2) (436 SE2d 659) (1993). Griffin Motel argues that Strickland, Scoggins and Redding are “consumers” within the meaning of the last sentence of OCGA § 51-1-40 (b) and are, therefore, barred from recovery by the statute. However, construing the last sentence of OCGA § 51-1-40 (b) in the context of the entire paragraph, we find that the statute, including the last sentence, is intended to apply to drivers of motor vehicles who are consuming alcohol. It specifically states when a provider of alcohol may be liable for damages caused by drivers of motor vehicles to whom it serves alcohol.

This interpretation is bolstered by numerous cases discussing the rationale for not allowing the consumer driver to sue the provider of alcohol. See, e.g., Steedley v. Huntley’s Jiffy Stores, 209 Ga. App. 23 (2) (432 SE2d 625) (1993). According to that rationale, the negligence of the consumer driver is greater than the negligence of the provider since the consumer driver has had the last opportunity to avoid the effect of alcohol by not driving while intoxicated. Id.

Griffin Motel cites no cases, and we can locate none, where a third party consumer of alcohol is precluded from suing a provider of alcohol. In Steedley, supra, relied upon by Griffin Motel, an intoxicated consumer driver attempted to recover for his own injuries. This is clearly not permissible under the statute. The present case involves third parties who were not driving a motor vehicle, attempting to recover for their injuries. While these individuals can be termed “consumers” in the general sense, we agree with the trial court’s analysis that the term “consumer” as used in OCGA § 51-1-40 (b) means one who purchases and consumes alcohol, then injures himself; not one who purchases and consumes alcohol, then is injured by another.

While Griffin Motel cites Goss v. Richmond, 146 Mich. App. 610 (381 NW2d 776) (1985), as support for this proposition, that case is not binding authority in Georgia. Moreover, that case centers on an assumption of risk analysis, not a statute such as OCGA § 51-1-40 (b).

It is clear that in OCGA § 51-1-40 the General Assembly sought to avoid the sale of alcoholic beverages to minors and to noticeably intoxicated individuals. Although the law does not permit the intoxicated consumer to sue the provider of the alcohol for his own negligence and recover for his own injuries, the language does allow third parties who are injured to recover, regardless of whether they also consumed alcohol. Thus, the trial court did not err in its interpretation of OCGA § 51-1-40 (b).

2. Griffin Motel asserts that under OCGA § 51-1-40, the provider of alcohol must have “actual knowledge” that Wilson would be driving soon. This argument is without merit.

The Supreme Court has held that “[i]f one in. the exercise of reasonable care should have known that the recipient of the alcohol . . . would be driving soon, he or she will be deemed to have knowledge of that fact.” Riley, supra at 655. The court further stated that “a construction of the Act requiring actual knowledge would render the Act an ineffective sanction, since only when the defendant admitted its own knowledge could the plaintiff prevail.” (Emphasis in original.) Id. at 654.

Decided November 18, 1996

Reconsideration denied December 5, 1996.

Lokey & Smith, G. Melton Mobley, Jon W. Burton, for appellant.

Frank L. Derrickson, for appellees.

In this case, there is evidence that Griffin Motel should have known that Wilson would be driving. Wilson arrived at the motel to pick up Scoggins, who did not have a vehicle. According to Wilson, while drinking with the motel manager, Wilson told Scoggins several times “let’s go. Come on and let’s go. I wanted to get back to Atlanta.” In addition, the evidence shows that the motel’s bartender went out to Wilson’s truck, awakened Scoggins, and asked him to help with Strickland, who had fallen. The evidence further shows that the desk clerk observed Wilson assist Strickland to the truck, get in the truck with the other passengers, and leave the motel. These circumstances raise genuine issues of material facts as to whether Griffin Motel should have known that Wilson would be driving soon after leaving the bar.

While Griffin Motel argues that the holding in Riley is limited to cases involving minors, this limitation was never articulated by the Court, and we decline to adopt this interpretation of Riley since the Act does not distinguish for this purpose between recipients of alcohol who are underage and those who are noticeably intoxicated.

Based on the foregoing, the trial court did not err in denying Griffin Motel’s motion for summary judgment.

Judgment affirmed.

McMurray, R J, and Johnson, J., concur.

       Charles Strickland is suing for the wrongful death of his father, Thomas Strickland.


author: Andrews, Judge.

text:
    A96A0839.
    FLINT et al. v. DEPARTMENT OF TRANSPORTATION.
    (479 SE2d 160)
   Andrews, Judge.

Four members of the Flint family appeal from the judgment entered on the jury’s verdict setting a condemnation award for a fee taking of .7928 acre and an additional 1.6821 acres as a slope easement, contending the court erred in refusing to allow Moody, the Flints’ expert appraiser, to testify regarding consequential damages and in its charge to the jury on expert witnesses.

1. The property was condemned December 15, 1992. At that time, the total property consisted of 7.684 acres of raw acreage, which was zoned C-3, the highest commercial zoning class inside the city of Canton. Dr. Flint testified that, as of December 1992, the family had no site plans regarding any proposed development of the property, other than a previously done driveway site plan; there were no negotiations going on with any potential builder/developer; no engineering or soil studies had been done; no specific building plans had been prepared; and no potential income analysis of any kind of structure that could be placed on the property had been performed. As he stated, “at that time, we were not ready to develop the property. . . .”

Because of the configuration of the property, located between the Etowah River and the state highway, the Flints’ appraiser, Moody, considered the property as two shelves or pads, one upper and one lower, for purposes of discussing future use in order to determine the claimed consequential damages to the remaining fee. He concluded that the lower shelf, consisting of 3.1 acres, would best be suited for a “fast food or a hotel/motel-type operation” and would generate a higher value than the upper 4.584-acre shelf. Because no proffer of proof was made regarding the upper shelf, we consider only the lower shelf on this issue.

Moody testified that, in his opinion, there had been a “gross infringement on the buildable area of this property, particularly in the easement area,” and that the remaining fee suffered consequential damages from the taking. After being retained regarding the condemnation, Moody contacted Lusk and asked him to prepare a preliminary sketch of a proposed building for each shelf. Lusk spotted a building on each pad, both before the taking and after the taking. On the lower shelf, before the taking, a 24,000-square-foot building with 93 parking spaces could have been built, according to Lusk. After the taking, a 13,600-square-foot building with 60 parking spaces could have been built.

As stated by Moody, “[b]efore the taking, he could build a certain square foot facility that would generate a certain income. After the taking, he could put a lesser facility there that would generate a certain income.” He then stated that “I developed a potential stream of income.” The court then excused the jury and asked for a proffer of proof concerning the stream of income and how it could be related to consequential damages to the remaining fee, as opposed to business losses, of which there were none, since there was no business operating on the land at the time of taking. After a lengthy hearing, during which Moody attempted to explain how the operating income could be used to show the diminished value of the highest and best use “strictly as to the loss in square foot of buildable area,” the court ruled that testimony concerning the reduced utility of the remainder would be allowed, based on the size of the pads being diminished, but that no testimony would be allowed regarding any income stream or any analysis based on an income stream. Loss of buildable area had also been introduced by other witnesses. Asked by the Flints if Moody could put a figure on the value of the loss of buildable area, the court ruled Moody could give his opinion.

After a break in the proceedings, Flints’ counsel announced that Moody was “not going at this time to testify to any value attributable to the loss of the footprint size of the building based on your ruling, because his opinion is, in fact, based on what our offer of proof was. . . . I’m not going to offer that — at this time.”

Pretermitting the issue of whether counsel’s statement evidenced a strategic abandonment of the effort to introduce this evidence at this point, there was no error in the court’s ruling.

“ The diminution in value of the remainder that is the measure of consequential damages should be measured as of the date of the taking. . . . The proper measure of consequential damages to the remainder is the diminution, if any, in the market value of the remainder in its circumstance just prior to the time of the taking compared with its market value in its new circumstance just after the time of the taking. (Cits.)’ (Emphasis supplied.) Wright v. MARTA, 248 Ga. 372, 375-376 (283 SE2d 466) (1981).” Dept. of Transp. v. Metts, 208 Ga. App. 401, 403 (4) (430 SE2d 622) (1993).

“The admission of evidence of factors which may reasonably influence a prospective purchaser’s decision is a matter within the discretion of the trial court. [Cit.]” Dept. of Transp. v. Acree Oil Co., 266 Ga. 336, 337 (2) (467 SE2d 319) (1996). As pointed out in Aeree, “business loss” in the standard, generic sense of that phrase, means the financial history of the property, i.e., something that a willing buyer would consider on the date of taking in arriving at the value of the property. Id.

It is appropriate for a jury to be allowed to inquire into “ ‘ “all legitimate purposes, capabilities and uses to which the property might be adapted, provided that such use (is) reasonable and probable and not remote or speculative.” (Cit.)’ Department of Transp. v. Kavanage, 183 Ga. App. 143 (358 SE2d 464) (1987).” (Emphasis supplied.) Cann v. MARTA, 196 Ga. App. 495, 496-497 (2) (396 SE2d 515) (1990). It is “within the trial court’s discretion to determine whether the evidence shows that the subject property is reasonably suited for a use different from its existing use, and it may admit or exclude evidence of value for such other use. Its rulings admitting or excluding such evidence will not be reversed unless there was a manifest abuse of its discretion. [Cit.]” Colonial Pipeline Co. v. Williams, 206 Ga. App. 303, 304 (425 SE2d 380) (1992).

The problem with the evidence proffered here, as in Cann and Colonial Pipeline, was that Moody’s calculations were based solely on hypotheticals and speculation. “The fact that the property is merely adaptable to a different use is not in itself a sufficient showing in law to consider such different use as a basis for compensation; it must be shown that such use of the property is so reasonably probable as to have an effect on the present value of the land. [Cits.]” Dept. of Transp. v. Benton, 214 Ga. App. 221, 222 (1) (447 SE2d 159) (1994).

No manifest abuse of discretion has been shown. Lee v. Dept. of Transp., 191 Ga. App. 1 (380 SE2d 726) (1989), relied upon by the Flints, does not persuade us otherwise. There, development had been planned, site work had begun, and a building permit had been obtained.

2. The charge excepted to below and enumerated as error was as follows: “Testimony has been given in this case by certain witnesses who are termed experts. Expert witnesses are those who, because of their training and experience, possess knowledge in a particular field which is not common knowledge or known to the average citizen. The law permits expert witnesses to give their opinions based upon training and experience in a certain field. You are not required to accept the testimony of any witness, expert or otherwise. Testimony of an expert like that of all witnesses is to be given only such weight and credit as you think it is properly entitled to receive. Now, . . . , as I indicated to you, an opinion of an expert witness which is shown to your satisfaction to be based on a mistake of facts or mistakes of fact should not be considered by you and should be dismissed from your deliberations since it rests upon an improper basis, if that is shown. I further instruct you that certain witnesses in this case have testified based on certain assumptions which they have made as to access to property, and they have based their conclusions of value on these assumptions. I charge you that if you find that these assumptions as to access are not correct or are unreasonable, then I instruct you that you should disregard the conclusion of that witness as to that issue which you find to be based on such erroneous assumption as to access.”

The objection made below was that this charge was “overly broad, and as a result of that, they could reject an entire opinion based on that particular portion of the charge.”

We do not find the charge subject to the objection voiced. The charge, taken as a whole, allowed the jury to disregard the expert’s conclusions to the extent they were based upon a mistake of fact. Since the jury was also properly charged that it alone determined the credibility of all witnesses and what testimony to believe and which not to believe, the objected-to charge was merely an amplification of this principle. There was evidence that Moody’s initial calculations were based on a mistake regarding access to the property.

Additionally, “[p]rovided an expert witness is properly qualified in the field in which he offers testimony, [cit.], and the facts relied upon are within the bounds of evidence, whether there is sufficient knowledge upon which to base an opinion or whether it is based upon hearsay goes to the weight and credibility of the testimony. . . .” (Emphasis supplied.) Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 592-593 (4) (452 SE2d 159) (1994). The instruction given is consistent with this principle and there was no error. Dept. of Transp. v. Delta Machine &c. Co., 157 Ga. App. 423, 428 (5) (278 SE2d 73) (1981).

Decided December 5, 1996

Hicks, Maloof & Campbell, Bruce M. Edenfield, for appellants.

Michael J. Bowers, Attorney General, James S. Howell, for appellee.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur. Pope, P. J., disqualified.


author: Andrews, Judge. Pope, Presiding Judge,

text:
    A96A1013.
    CITY OF DALTON v. GENE ROGERS CONSTRUCTION COMPANY.
    (479 SE2d 171)
   Andrews, Judge.

The City of Dalton appeals the trial court’s order granting Gene Rogers Construction Company’s motion for summary judgment. The City argues on appeal that the trial court erred in finding its third party indemnity action against Rogers Construction under the High-voltage Safety Act, OCGA § 46-3-30 et seq., was barred by the exclusive remedy provision of the Workers’ Compensation Act. We disagree and affirm the judgment of the trial court.

This action arose out of an injury to one of Rogers Construction’s employees, Danny Headrick. Headrick received a severe electrical shock when a piece of iron he was trying to reposition came into contact with a power line owned by the City of Dalton d/b/a Dalton Utilities. Headrick and his wife sued the City for negligence and loss of consortium. The City denied liability and filed a third-party indemnity action against Rogers Construction pursuant to Georgia’s High-voltage Safety Act. The pertinent provisions of this Act are as follows: “No person, firm or corporation shall commence any work . . . if at any time any person or any [work-related] item . . . may be brought within ten feet of any high-voltage line unless and until. . . [t]he person responsible for the work has given the notice required by [the provisions of the Act]; and . . . [t]he owner or operator of such high-voltage line has effectively guarded against danger from accidental contact by either de-energizing and grounding the line, relocating it, or installing protective covering or mechanical barriers, whichever safeguard is deemed by the owner or operator to be feasible under the circumstances.” (Emphasis supplied.) OCGA § 46-3-33. “The person responsible for the work shall be responsible to assure that the [abovementioned] safety requirements . . . are completed prior to the commencement of any such work.” (Emphasis supplied.) OCGA § 46-3-34 (e). In the event that the person responsible for the work fails to assure that the safety requirements have been met, and “subsequent activities within the vicinity of high-voltage lines result in damage to utility facilities or result in injury or damage to person or property [the person responsible for the work] shall be strictly liable for said injury or damage. . . . [The] person [responsible for the work] shall also indemnify the owner or operator of such high-voltage lines against all claims, if any, for personal injury, including death, property damage, or service interruptions, including costs incurred in defending any such claims resulting from work in violation of Code Section 46-3-33.” (Emphasis supplied.) OCGA § 46-3-40 (b).

Rogers Construction moved for summary judgment, seeking dismissal of Dalton’s third-party action on the ground that it was barred by the exclusive remedy provision of the Workers’ Compensation Act, which states that “[t]he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee ... at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee. . . .” OCGA § 34-9-11 (a). Accordingly, the employee may not sue the employer in tort, and the employer may not be impleaded as a joint tortfeasor in an employee’s action against a third party. See, e.g., Weller v. Brown, 266 Ga. 130 (464 SE2d 805) (1996); K-Mart Apparel Corp. v. Temples, 260 Ga. 871 (401 SE2d 5) (1991); Sargent Indus. v. Delta Air Lines, 251 Ga. 91 (303 SE2d 108) (1983).

The trial court granted Rogers Construction’s motion for summary judgment. Thereafter, the Headricks obtained a $300,000 verdict against the City, and the City now appeals the grant of summary judgment to Rogers Construction on the City’s third-party claim for indemnification.

The trial court correctly found the High-voltage Safety Act did not create an exception to the exclusive remedy provision of the Workers’ Compensation Act. In Pappas v. Hill-Staton Engineers, 183 Ga. App. 258, 259-260 (358 SE2d 625) (1987), a case almost directly on point, we found that, absent a specific statutory provision making an exception to the exclusive remedy provision, workers’ compensation laws relieved employers, not only of common law liability, but also of statutory liability under federal and state statutes. Id. at 260. While Pappas interpreted the Crane Act, a predecessor to the High-voltage Safety Act, which did not include the provision on strict liability and indemnification, the underlying issue is the same, namely, whether the Crane Act superseded the allegedly conflicting provisions of the Workers’ Compensation Act. Id. at 258.

In Pappas, a wrongful death action was brought against the deceased’s employer under the Crane Act, which imposed safety standards on, and created a theory of liability against, employers and owners and operators of hazardous high-voltage lines. Id. at 259. This Court held that “[i]t would be improper to declare the Crane Act to be an exception to the long-standing exclusive remedy provision.” Pappas at 260-261, noting that the exclusive remedy provision “relieves the employer of not only common law [tort] liability, but also of statutory liability under state and federal statutes” (Emphasis supplied.) Id. at 260. See also Larson, The Law of Workmen’s Compensation, § 65.30 (1996) (“the exclusiveness rule relieves the employer not only of common-law tort liability, but also of statutory liability under all state and federal statutes, as well as of liability in contract and in admiralty, for an injury covered by the compensation act”).

The City’s reliance on Gen. Telephone Co. &c. v. Trimm, 252 Ga. 95 (311 SE2d 460) (1984), and Seaboard Coast Line R. Co. v. Maverick Materials, 167 Ga. App. 160 (305 SE2d 810) (1983), is misplaced. As this Court was careful to point out in Seaboard, the issue in that case was one of contractual liability and whether an employer could waive the benefits of OCGA § 34-9-11 by express contract. Seaboard, supra at 162. The Court noted that third-party actions against an employer by a joint tortfeasor for contribution were still precluded by OCGA § 34-9-11, and the opinion makes clear that the employer is still immunized from any further liability in tort. Seaboard, supra. Accordingly, Seaboard and Gen. Telephone are not helpful in this case.

The rules of statutory construction also mandate against a finding that the legislature intended to supersede the exclusive remedy provision. “ ‘[I]t is well settled in this jurisdiction that all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it; that they are to be construed in connection and in harmony with the existing law; and that their meaning and effect will be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and the decisions of the courts.’ [Cits.]” Buice v. Dixon, 223 Ga. 645 (157 SE2d 481) (1967). Accordingly, we presume the legislature was aware of the exclusive remedy provision when they enacted the strict liability and indemnification provisions of the High-voltage Safety Act and they did not intend to create a conflict between the two. Thus, we will not find a subsequent statute supersedes the exclusive remedy provision absent an express statement that the legislature intended it to do so. See Bryant v. Wal-Mart Stores, 203 Ga. App. 770, 772 (417 SE2d 688) (1992) (there is nothing in the language of the RICO statute which indicates RICO was intended to supersede the exclusivity provisions of the Workers’ Compensation Act); Pappas, supra.

Therefore, for the reasons discussed above, we find that without an express provision stating that the indemnification section of the High-voltage Safety Act was intended to supersede the exclusive remedy provision of the Workers’ Compensation Act, the City of Dalton cannot pursue a claim for indemnification against the employer, Gene Rogers Construction Company. Accordingly, the trial court correctly granted summary judgment to Rogers Construction.

Judgment affirmed.

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

Pope, Presiding Judge,

dissenting.

I respectfully dissent to the majority’s conclusion that the Workers’ Compensation Act bars Dalton’s claim against Rogers Construction for indemnity under the High-voltage Safety Act. Although it is true that the Workers’ Compensation Act shields an employer, who has paid workers’ compensation benefits to an employee, from tort liability as a third-party defendant in a tort action brought by the employee, see Ga. Dept. of Human Resources v. Joseph Campbell Co., 261 Ga. 822, 823 (1) (411 SE2d 871) (1992), the Workers’ Compensation Act does not absolutely bar all third-party claims against the employer. For example, it is well settled that the Workers’ Compensation Act does not bar a defendant, who is in contractual privity with an employer and has been sued by an employee, from enforcing a contractual right of indemnity in a third-party action against the employer. Gen. Telephone Co. &c. v. Trimm, 252 Ga. 95 (311 SE2d 460) (1984); Seaboard Coast Line R. Co. v. Maverick Materials, 167 Ga. App. 160, 163 (305 SE2d 810) (1983).

I believe that the indemnity provision found in the High-voltage Safety Act should be given at least as much weight as a private indemnity agreement and, therefore, that it should be recognized as an exception to the workers’ compensation bar based on the clear statutory language found in the High-voltage Safety Act.

In the instant case, there is no dispute that Rogers Construction failed to assure that Dalton had rendered its high-voltage line safe before Rogers Construction began work within ten feet of the line. As a result, based on the unequivocal language found in the High-voltage Safety Act, Rogers Construction has a statutory duty to indemnify Dalton “against all claims” including those for personal injury. OCGA § 46-3-40 (b). This statutory duty is similar to a contractual duty and just as binding because it is not based on an employer’s status as a joint tortfeasor or on any statutory, common law or other right that an employee might have against his employer absent the exclusive remedy provision of the Workers’ Compensation Act. Moreover, the phrase “against all claims” in the indemnification provision found in OCGA § 46-3-40 (b) and the penal nature of that provision manifest the legislature’s intent that the right to indemnity found in the provision not be abridged by the exclusive remedy provision of the Workers’ Compensation Act. To conclude otherwise renders the High-voltage Safety Act all but meaningless because it in large part negates any punishment for violation of the act.

Contrary to the majority’s assertion, Pappas v. Hill-Staton Engineers, 183 Ga. App. 258, 259-260 (358 SE2d 625) (1987), is not almost directly on point, and it clearly does not dictate that Dalton’s statutory indemnity claim against Rogers Construction be barred. That case is distinguishable from the instant case because it dealt with the predecessor to the High-voltage Safety Act, which was known as the Crane Act. The Crane Act, however, did not contain any indemnity provision. Instead, it only provided for criminal penalties against those who violated its safety provisions. Furthermore, Pappas involved a deceased employee’s representative’s attempt to recover damages for the employee’s death based on negligence and negligence per se in violating the Crane Act. Such claims properly were barred by OCGA § 34-9-11 (a) because they constituted claims based on common law, statute or otherwise that originally could have been asserted by the employee against his employer, but for the existence of the workers’ compensation bar, as opposed to a claim based on an independent duty that could not be asserted by an employee, of the type found in the High-voltage Safety Act or contractual indemnity provisions.

Based on the above reasoning, I believe the cases cited by Rogers Construction and those relied on by the majority also are distinguishable and not dispositive here. Moreover, because statutory remedies of the type found in the High-voltage Safety Act impose specific duties, the enforcement of which would never be available to an employee in a suit against its employer, I find no support for any argument that recognition of such remedies as exceptions to the exclusive remedy provision of the Workers’ Compensation Act would result in a.flood of litigation.

Decided December 5, 1996

Leitner, Williams, Dooley & Napolitan, Sean A. Hunt, David W. Noblit, for appellant.

Bennett & Hamilton, Hubert E. Hamilton III, Finley & Buckley, Timothy J. Buckley III, for appellee.

In light of the above, I would reverse the trial court’s grant of Rogers Construction’s summary judgment motion.

I am authorized to state that Presiding Judge McMurray joins in this dissent.

       Indeed, if we find that the indemnification provision of the Act supersedes the exclusive remedy provision, it follows that the strict liability imposed upon the employer by this same provision could also be an exception to the provision.


author: Pope, Presiding Judge.

text:
    A96A1045.
    In the Interest of A. H. S., a child.
    (479 SE2d 157)
   Pope, Presiding Judge.

A. H. S. is a juvenile. After a passenger riding in her car was killed when she lost control of the car and struck a tree, A. H. S. was charged with committing the delinquent acts of first degree vehicular homicide, reckless driving, failure to stop at a stop sign and violating Georgia’s seat belt law. Pursuant to a negotiated plea, A. H. S. admitted committing the delinquent acts of second degree vehicular homicide and speeding, rather than first degree vehicular homicide and reckless driving, and the State dismissed the remaining charges. The juvenile court accepted the plea, placed A. H. S. on probation for 12 months for each of her delinquent acts and suspended A. H. S.’s driver’s license until she reached the age of 18. Furthermore, as a condition of probation, the juvenile court ordered A. H. S. to continue the psychiatric counseling she had begun before her delinquency, hearing, and also prohibited her from driving until the expiration of her probation, even though the probation would not end until after her eighteenth birthday.. On appeal, A. H. S. contends that the juvenile court committed reversible error in both the adjudicatory and dispositional stages of her case. We disagree and affirm.

1. In her first enumeration, A. H. S. contends that the trial court erred in sentencing A. H. S. without first making an express finding, on the record and supported by the evidence, that A. H. S. was in need of treatment or rehabilitation. Pretermitting the question of whether such an express finding is required by OCGA § 15-11-35 (a) (2), we find no merit to this enumeration because contrary to A. H. S.’s contention, the juvenile court did expressly find in its probation order that A. H. S. had committed the delinquent acts with which she was charged, and that A. H. S. was a delinquent/unruly child who needed treatment, rehabilitation or supervision. And the evidence presented to the juvenile court, including A. H. S.’s own in-court admission of guilt, warranted such a finding. It demonstrated that before losing control of her car and colliding with the tree that killed one of her passengers, A. H. S. had been drinking and was driving at least ten miles over the speed limit. The evidence further showed that A. H. S. was having psychiatric difficulties dealing with the accident. This evidence not only was sufficient for the juvenile court to have concluded beyond a reasonable doubt that A. H. S. committed the delinquent acts with which she was charged, as required by OCGA § 15-11-33 (a), but also amounted to clear and convincing evidence, as required by OCGA § 15-11-33 (b) (2), that A. H. S. was in need of treatment, rehabilitation and supervision of the type ordered by the juvenile court.

2. In her second enumeration, A. H. S. contends that the trial court exceeded its authority by prohibiting her from driving until the expiration of her probation, rather than her eighteenth birthday. Specifically, A. H. S. argues that the trial court was not authorized to impose such a condition as part of A. H. S.’s probation because OCGA § 15-11-35 (b) dictates that a juvenile court may suspend a juvenile’s license only until the time the juvenile reaches the age of 18.

OCGA § 15-11-35 (b) provides in pertinent part that a juvenile “court may, in addition to any other treatment or rehabilitation, suspend the driver’s license of [a] child for any period not to exceed the date on which the child becomes 18 years of age. . . .” That Code section, however, deals only with the suspension of a juvenile’s license, and does not expressly abrogate any authority the juvenile court has under OCGA § 15-11-35 (a) (2) to place a “child on probation under conditions and limitations the court prescribes. . . .” In the instant case, the juvenile court suspended A. H. S.’s license only until her eighteenth birthday. The court then directed, as a reasonable condition of probation, that after A. H. S.’s license was returned to her, A. H. S. not drive until the end of her probation. Based on the nature of the delinquent acts A. H. S. committed and the broad discretion given trial judges in setting conditions of probation, and in the absence of express authority to the contrary, we see no logical reason why this reasonable condition of probation should not be approved. See Brock v. State, 165 Ga. App. 150, 151 (299 SE2d 71) (1983) (“Probated . . . sentences, upon reasonable conditions, have traditionally been used by trial judges in Georgia as effective tools of rehabilitation and serve a useful purpose in appropriate cases. . . .”). We also reject any contention that our holding in In the Interest of J. E. H., 202 Ga. App. 29, 30 (413 SE2d 227) (1991), demands a different conclusion. In that case, we held that after a dispositional hearing, a juvenile court finding a child in need of treatment or rehabilitation can make any dispositional orders provided under OCGA § 15-11-35. This would include orders establishing probation under reasonable conditions and limitations pursuant to OCGA § 15-11-35 (a) (2), as well as those suspending a child’s driver’s license pursuant to OCGA § 15-11-35 (b).

3. It is undisputed that A. H. S. did not reside in the same county as the juvenile court that adjudicated her delinquency. As such, the adjudicating juvenile court was required under OCGA § 15-11-16 (b) to communicate its findings of delinquency to its sister court in A. H. S.’s county of residence and, before entering an order of disposition, request any information or recommendations relevant to A. H. S.’s disposition. In her third enumeration, A. H. S. contends that because there is no evidence in the record that the adjudicating juvenile court complied with the requirements set forth in OCGA § 15-11-16 (b), the disposition reached by that court must be reversed. In this state, however, “there is a presumption that a trial judge, acting as a public official, faithfully and lawfully performed the duties devolving upon him[,] and in the absence of [record evidence to the contrary], we will presume that the trial court fully complied with the law.” (Citations omitted.) AAA Bonding Co. v. State of Ga., 192 Ga. App. 684, 685 (3) (386 SE2d 50) (1989).

4. In her fourth enumeration of error, A. H. S. argues that the record does not indicate whether the two twelve-month periods of probation she received for each of her delinquent acts were to run concurrently or consecutively, and thus that the probation periods should be treated as running concurrently. We cannot agree. At the conclusion of A. H. S.’s dispositional hearing, the juvenile court informed all concerned parties that it was “placíing A. H. S.] on probation for twelve months on each count, which will be 24 months.” This statement from the juvenile court, combined with the dictates found in the court’s amended order of October 17, 1995, demonstrates that the probation periods imposed by the court were to run consecutively, and that this was made clear to A. H. S. Accordingly, we find no merit to this enumeration.

5. Finally, we reject the contention found in A. H. S.’s fifth enumeration that the juvenile court erred in accepting her plea without ascertaining the voluntariness of the plea. The record indicates that the State set forth, without objection, a factual basis for the plea and the trial court’s adjudication of delinquency based on second degree vehicular homicide and speeding. And it is undisputed that A. H. S., represented by counsel, admitted in open court that she committed the abovementioned acts. At no time during the hearing did A. H. S. ever indicate that she did not understand the charges against her or that the plea she was entering was involuntary. In fact, A. H. S. does not actually assert this in her appellate brief. Moreover, the record shows that prior to admitting her delinquency, A. H. S. had been advised of her rights, and had in fact signed an “Acknowledgment of Rights” form. The record further demonstrates that at the time A. H. S. entered her plea, she was a 17-year-old high school senior taking college level courses and ranked in the upper part of her class. Based on the evidence of record set forth above, we conclude that A. H. S.’s plea was intelligently and voluntarily made.

Decided December 5, 1996.

Paul S. Liston, for appellant.

William T. McBroom III, District Attorney, Randall K. Coggin, James E. Sherrill, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews and Smith, JJ, concur.


author: Beasley, Chief Judge.

text:
    A96A1077, A96A1078.
    BARBER v. GILLETT COMMUNICATIONS OF ATLANTA, INC.; and vice versa.
    (479 SE2d 152)
   Beasley, Chief Judge.

Barber sued Gillett Communications, d/b/a WAGA-TV, for defamation claiming that the television station prepared and broadcast a report which implied Barber had committed a crime. The report primarily concerned the comments of an elected official, Billy McKinney, as they concerned the criminal mistrial of Frank Redding, another elected official. McKinney believed Redding and other elected officials were the object of racially motivated selective prosecution. Both Redding and McKinney are African-American. The report discussed prior prosecutions against both black and white officials, showing clips of several black officials, then five white officials, including Barber who had served on the Public Service Commission. While Barber’s image was on the screen, and immediately after, a voice said: “A Public Service Commissioner was forced into quitting . . . after investigators turned up allegations of impropriety.” Then a few more images were presented including statistics showing breakdowns of prosecutions against public officials based upon race. McKinney was then shown saying: “Not a single white case was as a result of a sting operation. Every one of those white people were violating the law, and they were caught violating the law.”

The allegations against Barber to which the report referred concerned an incident in which Lockwood and Hudson, officials of a trucking company regulated by the Public Service Commission, gave $800 in cash to Barber. They originally approached Barber expressing dissatisfaction with a decision of a hearing officer. Barber stated that no process existed for appealing the hearing officer’s decision but a public hearing before the Public Service Commissioners would be necessary. Hudson and Lockwood stated that they wished to contribute to Barber’s re-election campaign and handed him two envelopes containing a total of $800.

Hudson then approached Pafford, another commissioner, offering financial help and requesting Pafford’s support in overturning the hearing officer’s decision. On a separate occasion, Hudson and Lockwood similarly addressed Commissioner Lovett. At a meeting of the commissioners shortly after Barber had been approached, and at which Barber was present, Pafford related Hudson’s approach to himself, expressing concerns about its propriety, and Barber said nothing. Pafford eventually went to the Georgia Bureau of Investigation, precipitating a full investigation. Barber did not report the money Hudson and Lockwood had given to him as a campaign contribution until after investigators inquired about it.

After trial, judgment was entered on the jury’s verdict in Gillett’s favor. In Case No. A96A1077 Barber appeals the judgment, and in Case No. A96A1078 Gillett cross-appeals the court’s denial of its motion for directed verdict.

Case No. A96A1077

1. Barber first contends the court erred in allowing opinion testimony as to whether he had engaged in any illegal activity. He filed a motion in limine requesting in part that any evidence relating to opinions of any state officials regarding the allegations against him be excluded. During a hearing on the motion, the court declared that the witnesses could not give opinions as to whether a crime had occurred or whether Barber would have been convicted if tried. Barber quotes in his brief the court’s statement ‘You just can’t give opinions.” It is clear in the context of the discussion of the motion and the court’s several statements that the ruling was not a prohibition against any evidence that could conceivably be considered an opinion on all matters. Rather it prohibited questions intended to elicit testimony phrased as fact that Barber had committed a crime in connection with his contact with Hudson and Lockwood. The court specifically Stated that witnesses could testify to facts discovered in the investigation of the allegations against Barber.

Barber cites numerous instances which he argues violated the court’s order on the motion in limine. These occurred during the testimony of Kohler, an assistant attorney general involved in the investigation of Barber, and Attorney General Bowers. First, it must be noted that this was not a criminal trial against Barber. Rather, Barber had to prove that Gillett made the broadcast with knowledge that its innuendo that Barber had committed bribery was false, or at least with reckless disregard as to whether it was false. Barber v. Perdue, 194 Ga. App, 287, 288 (390 SE2d 234) (1990).

Kaiserski, the reporter who prepared the report, testified that when he first learned of the allegations about Barber, he spoke with Bowers and was told Barber had broken the law and Bowers reluctantly forced Barber to resign rather than face prosecution. He also testified that McKinney’s remark that “every one of those white people were violating the law” was not intended or positioned to refer to the five persons whose faces appeared on the screen, but rather to those who were reflected in the statistics shown immediately before McKinney’s words, and was not intended to have any connection to Barber. He testified the report as presented was completely accurate. The testimony of Bowers and Kohler was relevant to show what Kaiserski knew about the matter, and whether his knowledge showed any reckless disregard for the truth. That was the ultimate issue for the jury’s consideration, not whether Barber had actually committed the crime of bribery, although that defense was also available to Gillett. Consequently, conclusions of Kohler and Bowers to the effect that Barber had committed a crime, communicated to Kaiserski through Bowers, were relevant.

Although Barber characterizes the court’s ruling in limine as a blanket prohibition against testimony concerning opinions, events at trial, as well as the hearing on the motion, show this is not the case. During Kohler’s testimony, Barber objected that he should not be allowed to give an opinion interpreting the campaign disclosure laws. The court stated it would allow that opinion testimony with an instruction to the jury as to what an opinion was. By allowing the testimony, the court recognized the distinction between the type of opinion testimony elicited by the question and the type of opinion it had prohibited prior to trial. To the extent that this trial ruling related to the motion in limine, it clarified that the court’s ruling on the motion pertained only to testimony expressing an opinion as to whether Barber committed a crime. Further, the court’s order on a motion in limine may be modified during trial. State v. Johnston, 249 Ga. 413, 415 (291 SE2d 543) (1982). See Stephan v. State, 205 Ga. App. 241, 242 (1) (422 SE2d 25) (1992); Frink v. State, 177 Ga. App. 604, 607 (1) (340 SE2d 631) (1986). If Barber did believe the motion in limine had been granted as to any opinion testimony (even though such a broad ruling had not been requested), he should have recognized that it had been modified. At other points in the trial the court repeated its comments about opinion testimony that fell outside the parameters of the pretrial ruling.

The instances Barber cites do not express opinion that Barber committed the crime alleged or violate the court’s order. The testimony was that the matter was important, that nothing occurred in the investigation to cause one to believe it was misdirected, that Barber had not given a satisfactory explanation for the allegations, and that Kohler believed Barber was not honest. The testimony also related what evidence against Barber had been brought to Bowers’ attention. This testimony did not express an opinion Barber had committed a crime.

Barber also complains about testimony to the effect that Kohler believed there was sufficient evidence to take to the grand jury and believed, but did not know, that a grand jury would indict Barber, that it would have been unfair to pursue indictment against Hudson and Lockwood for approaching Barber when he was allowed to resign rather than face indictment, and that Bowers believed a case could be made against Barber but “if we were successful in getting an indictment and successful in getting a trial,” a conviction would probably not result in punishment greater than removal from office. Again the testimony does not violate the order; the witnesses do not contend Barber committed a crime, expressed as either fact or opinion. Nor is Bowers’ testimony about removal from office a statement that conviction would have resulted from prosecution but rather a prediction about what penalty would result if a conviction resulted.

At most these are statements evaluating the evidence against Barber. Such testimony was relevant because Gillett. raised the defense that the broadcast was true, including its statement that Barber was forced to resign. Barber contended he resigned by choice. Kohler’s and Bower’s testimony that they had offered Barber the opportunity to resign rather than present the case to a grand jury, and the reason they decided to make that offer, conflicted with Barber’s testimony and created an issue of fact. Their impressions as to the strength of the case against Barber, and their conclusions about the possible outcome of any prosecution based on that case, were admissible to explain their conduct. Carco Supply Co. v. Dick Clem &c., Inc., 194 Ga. App. 566, 567 (2) (391 SE2d 134) (1990). The same is true of questions concerning Kohler’s and Bowers’ understanding of the law concerning bribery. Moreover, when objections to “opinion” evidence were raised, the court repeated, in the jury’s presence, that no opinion as to whether a violation had occurred could be stated and that opinions were not facts. Appellant has not shown harmful error requiring reversal. Verde v. Granary Enterprises, 178 Ga. App. 773, 774 (2) (345 SE2d 56) (1986).

2. In his second enumeration, Barber contends the court should have sustained his objection to questions concerning indictments against Hudson and Lockwood for their actions concerning Commissioners Pafford and Lovett. After the objection had been overruled, Kohler testified that both Hudson and Lockwood were indicted for their actions concerning the other commissioners and that Hudson pled nolo contendere and received a fine, and that the charges against Lockwood were dropped. Kohler explained that prosecution did not continue against the two men based upon their interactions with Barber because “it would not be right” to do so when Barber had been allowed to resign rather than face prosecution for his involvement in the same acts.

Questions about the prosecution of Hudson and Lockwood had been addressed to a prior witness. At that time the only objection Barber raised was that the question might mislead the jurors to believe the investigation continued as to Barber’s interactions with Hudson and Lockwood. Examination proceeded without further objection after Gillett rephrased the questions to refer only to prosecution for interactions Hudson and Lockwood had with Commissioners Pafford and Lovett.

Barber contends the evidence elicited by the questioning of Kohler was irrelevant because Barber was not one of the actors in the other transactions. He cites authority for the proposition that evidence of similar acts on occasions other than the one at issue in a trial is inadmissible to show conduct on the occasion in question, but that authority pertains to prior acts or relationships of a party. See OCGA § 24-2-2; Dennis v. Dennis, 227 Ga. 164, 166 (3) (b) (179 SE2d 238) (1971); Carsten v. Wilkes Supermarket &c., 181 Ga. App. 834, 835-836 (2) (353 SE2d 922) (1987); Genius v. Geiger, 144 Ga. App. 244, 248 (6) (240 SE2d 745) (1977); Hollomon v. Hopson, 45 Ga. App. 762, 765 (8) (166 SE 45) (1932). The principle does not apply to non-parties. Brannen v. Prince, 204 Ga. App. 866, 870 (5) (421 SE2d 76) (1992).

The actions of non-parties Hudson and Lockwood pertaining to Commissioners Pafford and Lovett, did not directly involve Barber but were nonetheless relevant to issues at trial. As noted above, Barber had to prove that Gillett made the broadcast with knowledge that its innuendo that Barber had committed bribery was false, or at least with reckless disregard as to whether it was false. Perdue, supra at 288. Gillett asserted as defenses that the innuendo was true and that it reasonably believed the innuendo to be true. The fact that, immediately after discussing commission review of an administrative hearing officer’s decision, Hudson and Lockwood had given a cash campaign contribution to Barber and shortly thereafter attempted to do the same with two other commissioners, and were prosecuted for their actions towards-those commissioners, was relevant to issues of the truth of the implication and whether the reporter preparing the broadcast reasonably believed it to be true.

Even if the “other transactions” rule of OCGA § 24-2-2 applies to the actions of non-parties Hudson and Lockwood, evidence of their transactions with Pafford and Lovett was admissible to show their intent and motive in approaching commissioners. See Candler v. Davis & Upchurch, 204 Ga. App. 167, 169 (3) (419 SE2d 69) (1992). Contrary to the characterization in Barber’s brief, the actions of Hudson and Lockwood in approaching Commissioners Pafford and Lovett were not isolated from their acts in approaching Barber; it is infer-able that all were part of a single course of action by Hudson and Lockwood, with a single aim. Evidence as to the results of the investigation into their dealings with Pafford and Lovett were relevant to issues tried and was properly admitted.

3. Finally, Barber contends the court erred in failing to give his Request to Charge No. 5: “If statements are broadcast implying the commission of a crime when there has been no indictment or conviction of the person so accused, this may constitute evidence of actual malice if the broadcaster knew of these facts.” Barber cited Barber v. Perdue, supra, as authority. In that case the alleged defamation involved a letter in which the defendant stated this same plaintiff had accepted “what amounted to a bribe” and resigned “rather than face the prospect of indictment and conviction.” Id. at 287. Perdue did note that the defendant knew the plaintiff had not been indicted or convicted of bribery, and that such knowledge could assist a jury in inferring the defendant was stating a falsity (i.e., that the plaintiff’s acceptance of a bribe had been proven beyond a reasonable doubt in court) when he knew no court proceeding had ever occurred. The jury could draw similar inferences from the fact that the defendant wrote as though conviction was a certainty when he knew there was evidence against conviction. Id. at 291.

Perdue was decided in the context of summary judgment. The statement in the requested charge was taken out of context from the case claimed as authority. See Stinson v. Allstate Ins. Co., 212 Ga. App. 179, 182 (2) (b) (441 SE2d 453) (1994). Furthermore, “[a] party is not entitled to have all of his requested charges given so long as the principle encompassed in the requested charge is covered elsewhere in the court’s charge. [Cit.]” Gen. Accident Ins. Co. v. Straws, 220 Ga. App. 496, 498 (472 SE2d 312) (1996). A charge need not be given if it is argumentative or arguably invades the jury’s province in directing a finding of fact. Valdez v. Power Indus. Consultants, 215 Ga. App. 444, 448 (3) (451 SE2d 87) (1994). As the court properly noted during the charge conference, the requested charge would have the effect of the court pointing to one factual issue and stating that malice could be found therefrom, emphasizing it over all other evidence. The principles of malice and the relevant burdens of proof which the jury had to consider were properly charged, and Barber was free to argue the evidence showed malice.

Decided December 5, 1996

Mayer & Beal, Randolph A. Mayer, Elizabeth B. Thompson, Cook & Connelly, Bobby Lee Cook, for appellant.

Alston & Bird, Judson Graves, Daniel A. Kent, Cynthia L. Counts, for appellee.

Case No. A96A1078

4. In view of our decision in Case No. A96A1077, Gillett’s cross-appeal is moot and must be dismissed.

Judgment affirmed in Case No. A96A1077. Appeal dismissed in Case No. A96A1078.

Birdsong, P. J., and Blackburn, J., concur.


author: Johnson, Judge. Blackburn, Judge, McMurray, Presiding Judge,

text:
    A96A1229.
    SHARPNACK et al. v. HOFFINGER INDUSTRIES, INC.
    (479 SE2d 435)
   Johnson, Judge.

Stephen Sharpnack suffered injuries which rendered him a quadriplegic when he dived from a mini-trampoline into an aboveground swimming pool owned by Jerry Morris and Mary Ann Morris. This incident occurred the first day the Morrises opened their pool for use in 1989. Stephen Sharpnack, then 15 years old, had used the pool on several occasions the previous summer and was familiar with the pool’s uniform three-and-a-half- to four-foot depth. He was also familiar with hazards associated with diving into such shallow water, explaining during his deposition that he and other swimmers at the Morrises’ pool always performed dives “at an angle” to avoid hitting that pool’s bottom. He judged, however, that the “watermelon” dive he executed from the surrounding deck at the Morrises’ pool was safe because this particular dive called for an immediate “flip” or somersault upon contact with the water’s surface. He deposed that he would have never attempted this or any other dive at the Morrises’ pool had there been visible warning signs cautioning him against diving into the pool’s shallow water.

Patricia Sharpnack, individually and as Stephen Sharpnack’s mother, guardian and next friend, filed a products liability action against the manufacturer of the Morrises’ pool, Hoffinger Industries, Inc., and the pool’s retail distributor, Olympus Pools, Inc., asserting negligence claims against both Hoffinger and Olympus and strict liability claims against Hoffinger, under OCGA § 51-1-11 (b), for placing the allegedly defectively designed pool on the market without adequate warning signs. The Sharpnacks later filed an amended complaint, alleging in pertinent part that Hoffinger and Olympus negligently administered two retrofit and notification campaigns aimed at providing customers, such as the Morrises who purchased their pool on April 17, 1984, with warning signs and information regarding known hazards associated with using Hoffinger’s aboveground swimming pools.

The Sharpnacks dismissed their claims against Olympus after settlement negotiations and moved to strike Hoffinger’s defensive pleadings based on alleged discovery abuses. The trial court entered an order questioning Hoffinger’s good faith and candor in responding to discovery requests, but found that striking Hoffinger’s answer was not an appropriate sanction at that time. The Sharpnacks filed another amended complaint, alleging Hoffinger’s fraudulent discovery abuses resulted in the destruction of material evidence.

The trial court entered an order granting Hoffinger’s motion for summary judgment. This order provides: “The Court finds that there are no genuine issues of material facts and that [Hoffinger] is entitled to Summary Judgment as a matter of law. The Plaintiff Stephen Sharpnack suffered his tragic injuries as a result of doing a flip off a mini-trampoline into an above ground pool in which he had swam [sic] before. No additional warnings or actions by the pool manufacturer would have prevented his injuries. The Plaintiff Stephen Sharpnack as a matter of law assumed the risk of serious injury and cannot now recover from the remaining defendant manufacturer.” This appeal followed.

1. We agree with the trial court that Stephen Sharpnack assumed the risk of his injuries. In this tragic case, Sharpnack’s own actions constituted the sole proximate cause of his injuries. The dissent in this case, while agreeing with the trial court that Sharpnack assumed the risk of his injuries, would reverse the trial court, based on the Supreme Court’s holding in Banks v. ICI Americas, 264 Ga. 732 (450 SE2d 671) (1994), and allow a jury to apply the risk-utility analysis adopted in that case. Banks does not mean that summary judgment is no longer appropriate in any case in which a design defect is alleged. The Supreme Court, in adopting the risk-utility analysis, clearly did not intend to preclude summary judgment in a case such as the one before us, in which it is palpably clear that the plaintiff assumed the risk of his injuries and as clear that his own action was the sole proximate cause of his injuries.

Although Banks was decided almost two years ago, whether the risk-utility analysis itself, or the language of our Supreme Court in adopting that analysis in Georgia, precludes summary adjudication in product liability cases is an issue which has not been before us for consideration. At least two federal district courts in Georgia have addressed the issue, however. In Morris v. Clark Equip. Co., 904 FSupp. 1379 (M.D. Ga. 1995) the middle district granted summary judgment to the defendant-manufacturer based on the application of the open and obvious danger rule. Under the facts of that case, the court found that the risk-utility balancing test under Banks was satisfied as a matter of law by the plaintiff’s acknowledgment that he was aware of the potential danger of moving parts on the forklift which caused his injuries and his admission that he could have totally avoided the danger. Id. at 1383 (11).

In denying defendant-manufacturer’s motion for summary judgment based on an open and obvious defense, the northern district in Raymond v. Amada Co., Ltd., 925 FSupp. 1572 (N.D. Ga. 1996) observed that “the Georgia Supreme Court’s recent decision in Banks has impliedly overruled the open and obvious doctrine as applied to products liability design defect cases.” But the court noted that its finding did not necessarily foreclose summary judgment in all products liability cases decided after Banks. Id. at 1578. After distinguishing between the open and obvious rule from the defense of assumption of the risk, the court concluded that assumption of the risk remains a viable defense in product defect cases. Id. at 1579. In reaching this conclusion, the court reviewed the law in the jurisdictions cited by the Supreme Court in Banks and found that assumption of the risk remains a defense in those jurisdictions which have adopted a risk-utility analysis. While the court in Raymond found summary judgment inappropriate on the facts of that case, it is instructive to us for its conclusion that summary judgment based on an assumption of the risk defense is not barred by Banks. It would be a misuse of judicial resources to require that those cases in which the facts are clear, palpable and indisputable be submitted to a jury.

2. Contrary to the Sharpnacks’ assertions, we, find that the trial court did not manifestly abuse its discretion in refusing to strike Hoffinger’s answer because of Hoffinger’s alleged discovery abuses. Relying on Milholland v. Oglesby, 223 Ga. 230 (154 SE2d 194) (1967), the Sharpnacks argue that a trial court has the inherent power to sanction a party who has abused the discovery process. They argue that the court has the inherent power to strike an answer or, as in Milhol land, indefinitely stay an action when a party’s conduct has been so opprobrious as to deny the opposition its constitutional due process rights. After reviewing the voluminous record in this case it is clear that Hoffinger repeatedly abused both the letter and spirit of the Civil Practice Act. We share the trial court’s doubts about the good faith and candor of Hoffinger. Nonetheless, Sharpnack has not been deprived of his constitutional rights, and the trial court’s refusal to exercise its inherent authority to sanction under OCGA § 24-4-22 by striking Hoffinger’s answer was not reversible error.

3. The trial court did not grant or deny summary judgment with regard to the claims asserted in the Sharpnacks’ amended complaint. We therefore have no jurisdiction to consider issues not ruled upon by the trial court.

Judgment affirmed.

Beasley, C. J, Birdsong, P. J., Pope, P. J., Andrews, Smith and Ruffin, JJ, concur. Blackburn, J., concurs specially. McMurray, P. J, dissents.

Blackburn, Judge,

concurring specially.

I concur specially with Judge Johnson’s conclusion that the evidence in this case warrants summary judgment for Hoffinger on Sharpnack’s strict liability claims. The evidence shows clearly that Sharpnack’s own knowing and voluntary actions proximately caused his injuries. Therefore, as a matter of law the plaintiff cannot show an essential element of liability under OCGA § 51-1-11 (b) (1): that the product’s “condition when sold is the proximate cause of the injury sustained.” That is the reason defendant is entitled to summary judgment.

While the term “assumption of the risk” has been used by the majority as well as Presiding Judge McMurray in his dissent and by the authorities cited, its use is inappropriate here and confuses the analysis. “Assumption of the risk” is a defense to a negligence claim which presumes the existence of the defendant’s negligence, but excuses same because of the plaintiff’s awareness of the dangerous condition created thereby.

Under the facts of this case; the defendant’s conduct was not the proximate cause of plaintiff’s injuries and the defendant’s conduct in the manufacturing and marketing of its product is thus rendered irrelevant to the analysis.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent because I believe the case sub judice is controlled by Abee v. Stone Mountain Mem. Assn., 252 Ga. 465 (314 SE2d 444), wherein the Georgia Supreme Court affirmed the Court of Appeals’ holding in Abee v. Stone Mountain Mem. Assn., 169 Ga. App. 167 (312 SE2d 142), that assumption of the risk does not — as a matter of law — bar an action against an alleged manufacturer based on strict liability under OCGA § 51-1-11 (b). Id. at 168 (1), 170 (2).

In Abee v. Stone Mountain Mem. Assn., 252 Ga. 465, supra, an eleven-year-old child flipped over, fractured his jaw, lost one front tooth, and broke his other front tooth while riding a water slide that was erected by a contractor at Stone Mountain Park. On certiorari, the Georgia Supreme Court affirmed the Court of Appeals’ judgment in Abee v. Stone Mountain Mem. Assn., 169 Ga. App. 167, supra, wherein this Court had affirmed the trial court’s grant of “summary judgment to Stone Mountain Memorial Association and Smith Construction Company for negligence in the operation, maintenance, construction or supervision of the slide or design of the water pump because the facts show plaintiff assumed the risk; [but at the same time reversed the grant of] summary judgment [as to] Smith Construction on the strict liability count on the basis that Smith was not a manufacturer. . . ” Abee v. Stone Mountain Mem. Assn., 252 Ga. 465, supra. While neither the Supreme Court nor the Court of Appeals explains in Abee why the doctrine of assumption of the risk barred the plaintiff’s negligence claims while not barring the plaintiff’s strict liability claim under OCGA § 51-1-11 (b), such a rule is consistent with the Georgia Supreme Court’s holding in Banks v. ICI Americas, 264 Ga. 732 (450 SE2d 671), where the primary focus of a manufacturer’s liability under OCGA § 51-1-11 (b) was not the conduct of the parties but the characteristic of the product as measured by a risk-utility analysis. Indeed, the Supreme Court expressly states in Banks that a user’s knowledge of a prodüct and ability to avoid dangers associated with use of the product are merely factors the trier of fact may consider — under a risk-utility analysis — in determining whether the manufacturer breached its duty under OCGA § 51-1-11 (b) and thus whether any such defect was a proximate cause of resulting injuries. Id. at 733 (1), 736, n. 6. This perspective tells me that Banks not only establishes the risk analysis test as an appropriate vehicle for determining whether a product’s design is defective, but also fairly implements “Georgia’s public policy of shifting to manufacturers the burden of loss caused bjr defective products. . . .” Alexander v. Gen. Motors Corp., 267 Ga. 339, 340 (478 SE2d 123). I therefore cannot join in the majority’s attempt to diminish these goals in the case sub judice by holding that Stephen Sharpnack’s alleged assumption of the risk completely severs Hoffinger’s liability under OCGA § 51-1-11 (b). I would instead adopt an approach taken by other jurisdictions whereby the trier of fact is allowed to consider the relative responsibility of the parties in apportioning the loss and damage resulting from the injury. See Milwaukee Elec. Tool Corp. v. Superior Court &c., 19 Cal. Rptr. 2d 24, 36-37 (1993); Suter v. San Angelo Foundry &c. Co., 406 A2d 140, 145-149 (1979), superseded by statute on other grounds as stated in Dewey v. R. J. Reynolds Tobacco Co., 577 A2d 1239, 1251-1253 (1990). I believe that holding otherwise — and effectively allowing a manufacturer to escape liability under OCGA § 51-1-11 (b) by pointing the finger at the consumer — would undermine the policy behind Georgia’s strict liability statute and would erode the manufacturer’s incentive to achieve safety in design and production, sanctioning the marketing of dangerous products. See American Law of Products Liability, § 41:23. Accordingly, I would reverse the trial court’s order granting summary judgment with regard to plaintiffs’ strict tort liability claim under OCGA § 51-1-11 (b). I believe that genuine issues of material fact remain as to Hoffinger’s liability for placing a defectively designed pool on the market as well as the extent Stephen Sharpnack’s alleged assumption of the risk diminished Hoffinger’s liability.

Decided December 5, 1996

Mozley, Finlayson & Loggins, Robert M. Finlayson II, Richard D. Hall, for appellants.

Finley & Buckley, Timothy J. Buckley III, for appellee.

       The Sharpnacks assert on appeal that these alleged discovery abuses damaged them because certain documents Hoffinger destroyed, particularly a memorandum retrieved from a third party, were not available for development of testimonial evidence during discovery proceedings.


author: Birdsong, Presiding Judge.

text:
    A96A1265.
    THE STATE v. BANKS.
    (479 SE2d 168)
   Birdsong, Presiding Judge.

The State of Georgia appeals the grant of Bernard Banks’ motion to suppress. In its sole enumeration of error, the State contends that the trial court erred in granting appellee’s motion to suppress evidence of the crack pipe seized from appellee. Held:

This contention is without merit. We will not reverse the correct ruling of a trial court regardless of the reason therefor. Krebsbach v. State, 209 Ga. App. 474 (433 SE2d 649), citing Ely v. State, 192 Ga. App. 203 (4) (384 SE2d 268). Further, reversing the trial court’s judgment would mean that the mere fact that a black man is standing next to an apartment building with his hand in his pocket at a reasonable hour as in this case standing alone raises sufficient suspicion of criminal activity to authorize a Terry stop and sufficient reasonable belief that the man was armed and dangerous to warrant a pat-down for weapons. As we are unwilling to permit that conclusion, we affirm the trial court’s grant of appellee’s motion to suppress.

On a motion to suppress, the burden of proving the search was lawful is on the State. OCGA § 17-5-30. See State v. Slaughter, 252 Ga. 435, 438 (315 SE2d 865). An appellate court reviewing a trial court’s order concerning a motion to suppress evidence must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. Tate v. State, 264 Ga. 53, 54 (440 SE2d 646), citing Anderson v. State, 133 Ga. App. 45, 47 (209 SE2d 665). Where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo review. Vansant v. State, 264 Ga. 319 (443 SE2d 474). Accordingly, we will conduct a de novo review of the trial court’s ruling, construing all evidence in favor of the judgment to suppress the evidence. .

The evidence presented at the hearing on the motion consisted solely of testimony from police officers Lewis and Gray. Their testimony indicates that these officers and at least two other officers weré checking the area around an apartment building in Columbus, Georgia for drug activities, but they were not responding to specific complaints about ongoing drug activities. Instead, both officers testified that their sergeant told them that because complaints of drug activity in the area had been received, they should check out the area. Consequently, no less than four officers in at least two police cars went to the area. When they arrived, they saw and then approached three black men who were standing on the corner near an apartment complex. Officer Gray asked appellee whether he lived in the apartments and why he was there. Not satisfied with appellee’s responses, Gray demanded that appellee take his hand out of his pocket and then patted down appellee. Feeling a hard, pen-sized object in his back pocket, Gray pulled the object out of appellee’s pocket and discovered it was a crack pipe with cocaine residue. Neither additional contraband nor weapons were found on appellee’s person.

Under our law, there are three levels of police-citizen encounters. In the first level, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. State v. Westmoreland, 204 Ga. App. 312 (418 SE2d 822). This tier provides no Fourth Amendment protection. In the Interest of S. B., 207 Ga. App. 60 (427 SE2d 52). Officer Gray’s initial approach of appellee, in which she inquired about his presence at the apartment complex, falls under the first level of a police-citizen encounter as appellee was not detained by Officer Gray.

The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen. Evans v. State, 216 Ga. App. 21, 23 (453 SE2d 100). In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspeering the persons are involved in criminal activity. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889); Postell v. State, 264 Ga. 249 (443 SE2d 628). To stop a citizen, the officer must possess more than a subjective, unparticularized suspicion or hunch. Rogers v. State, 206 Ga. App. 654, 659 (426 SE2d 209). The officer’s action must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion (id. at 659), and the officer must have some basis from which the court can determine that the detention was neither arbitrary nor harassing. Id. at 659, citing Terry, supra at 22; see also Brown v. State, 188 Ga. App. 184, 186-187 (372 SE2d 514); Evans v. State, 183 Ga. App. 436, 438-439 (359 SE2d 174). “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” (Citation and punctuation omitted; emphasis supplied.) Brown v. State, supra.

When Officer Gray began to exercise control over appellee by demanding that he remove his hand from his pocket, the situation elevated to the second tier of a police-citizen encounter because under the attendant circumstances, Officer Gray had escalated the situation from a mere police-citizen encounter to an investigative detention. Thus, beginning with this demand, Gray needed an articulable suspicion that appellee was either currently or would soon be engaged in an unlawful activity to further detain appellee. Officer Gray, however, articulated no particularized and objective basis for suspecting that appellee was involved in criminal activity. At best her reasons raised a subjective, unparticularized suspicion or hunch.

Additionally, although a Terry stop and a pat-down for weapons are many times not analyzed separately, even a particularized and objective basis for suspecting that a person is engaged in criminal activity is not sufficient to authorize a pat-down of the suspect for weapons. An officer who has lawfully detained a citizen is authorized to conduct a Terry pat-down for weapons only if the officer has a reasonable belief preparatory to an intended pat-down that the suspect is armed and presents a danger to the officer or others. Terry, 392 U. S. at 24; Brown v. State, 181 Ga. App. 768, 770 (353 SE2d 572). A Terry pat-down is authorized when the officer reasonably believes that it is necessary to protect the officer from attack. Wood v. State, 224 Ga. 121, 124 (160 SE2d 368); Dowdy v. State, 209 Ga. App. 311, 312 (433 SE2d 293). Consequently, even if we were inclined to credit the State’s argument that Officer Gray could have reasonably suspected appellee of loitering in violation of OCGA § 16-11-36 (but see Bell v. State, 252 Ga. 267, 271 (313 SE2d 678): “The offense of loitering is committed only when the actor engages in conduct ‘not usual for law abiding individuáis’ which creates ‘a reasonable alarm or immediate concern for the safety of persons or property in the vicinity’ ”), there is nothing in this record from which one could reasonably believe appellee was armed and dangerous.

Although the police officers testified that the men were standing “in the mode of the ‘stop and cop’ drive-by method of conducting drug sales,” it is important to understand just what this means. Both officers testified that this “mode” consists of standing on the side of the street and waiting to make drug sales. Hence, under this definition these three men in Columbus or three judges of this court in Atlanta, if waiting on the side of the street for any purpose, would be standing in the mode of a “stop and cop.” Clearly, then, standing on the side of the street, without something more, proves nothing. In this case, there was nothing more; neither officer testified that she or he saw anything suspicious before they approached these men and demanded that they explain their presence there. In particular, there is no testimony that the officers saw any of these men do anything remotely suggesting a drug transaction. The men merely were standing near an apartment building on the side of a public street around 7:00 p.m. on the evening of May 17, 1995.

Moreover, although the police rely upon the fact that the men were in an area in which drugs were frequently sold, there is no evidence this information was known to these men, or that if it was known, that such information, standing alone, has any significance. Unfortunately, the many appellate cases referring to “known drug areas” or “areas where drugs are frequently sold” demonstrate that areas fitting these labels exist in many of the cities and towns of this state. It is equally unfortunate, however, that not all persons found within these areas are involved with drugs. As one of the officers in this case reluctantly admitted, some decent people live in areas that are known to the police for frequent drug activity. Therefore, we do not find that appellee’s mere presence in an area known to the police for its drug activity, without more, is sufficient to support a reasonable suspicion that appellee was engaged in or about to engage' in criminal activity. Further, we explicitly reject any idea that the race of these three men can be considered evidence that they were engaged in any illegal or suspicious activity.

Therefore, construing the evidence most favorably to the trial court’s judgment {Tate, supra at 54 (1)), we find that the record displays no information from which Officer Gray reasonably could have suspected appellee of being engaged in an unlawful activity or that he was armed and dangerous. Both State witnesses repeatedly indicated that they observed three black males, including appellee, merely standing outside the apartment building around 7:00 p.m. Officer Gray testified that appellee’s conduct convinced her he was involved in an unlawful activity. However, an examination of appellee’s conduct reveals only that he was nervous, as anyone approached by police officers might reasonably be, and had his hand in his pocket. A nervous black man standing outside an apartment complex at 7:00 p.m. with his hand in his pocket does not, standing alone, give rise to an articulable suspicion that the man is engaged in an unlawful activity. Accordingly, under these particular facts, the resulting investigative detention of appellee was unreasonable. Compare State v. Sapp, 214 Ga. App. 428 (448 SE2d 3). Moreover, the pat-down of appellee was unreasonable and any evidence found during the pat-down was appropriately suppressed by the trial court.

Decided December 5, 1996.

J. Gray Conger, District Attorney, Patrick B. Moore, Paul J. Coburn, Assistant District Attorneys, for appellant.

Gwyn P. Newsom, for appellee.

Judgment affirmed.

Blackburn, J., concurs. Beasley, C. J., concurs in judgment only.