text:
    A98A2308.
    McCOY v. THE STATE.
    (508 SE2d 224)
   Eldridge, Judge.

The defendant, Lawrence Charles McCoy, was convicted by a jury for the offense of armed robbery. He appeals from the denial of his motion for new trial.

In the fight most favorable to the verdict, the evidence at trial showed the following: On December 29, 1995, Jared Daniels and his girlfriend, Jessica Crenshaw, stopped at Holiday Market in Rochelle. Crenshaw, who was driving, went into the store, while Daniels stayed in the car. The defendant was sitting in a red Chevrolet S-10 pickup truck, which was parked next to the passenger side of Crenshaw’s car. The other two occupants of the pickup truck had gone into Holiday Market.

Daniels heard loud music coming from the pickup and looked over. Daniels testified that he thought the defendant called him by name, and he rolled down his window. During the conversation that ensued, Daniels looked down to check his beeper. The defendant asked Darnels if he had a beeper, and Daniels responded in the affirmative. When Daniels looked back up, the defendant was standing by the passenger door of Crenshaw’s car pointing a gun at Daniels’ head.

-The defendant demanded at gunpoint that Daniels give him his beeper and, with the gun pointed at Daniels’ head, asked Daniels if he was afraid to die. After Daniels gave the defendant his beeper, the defendant told Daniels that if he called the police he would kill him.

Crenshaw testified that the two occupants of the red pickup who had gone into Holiday Market were in the checkout line in front of her. When Crenshaw exited the store, Daniels had locked the doors to her car, appeared to be very upset and scared, and kept telling her to hurry and get into the car. As Crenshaw was getting into the car, the red pickup truck exited the parking lot. Daniels told Crenshaw his beeper had been taken at gunpoint.

Daniels testified that when the number on his beeper was called, the caller would get a message that contained his name. Therefore, Daniels and Crenshaw went to “Rochelle Place,” and Daniels used the telephone to remove his name from the message. Crenshaw then took Daniels home. When Darnels’ parents got home, Daniels told them what had occurred and his parents called the police and reported the incident.

1. The defendant alleges that the trial court erred in allowing his custodial statement to be entered into evidence because it was not made freely. The defendant maintains that the statement was involuntary because he was a juvenile and intoxicated.

(a) The question of whether a defendant waives his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), and makes a voluntary and knowing statement depends on the totality of the circumstances. Reinhardt v. State, 263 Ga. 113, 115 (428 SE2d 333) (1993). When the accused is a juvenile, the totality of the circumstances is determined through an analysis of nine factors: (1) age of the accused; (2) education of the accused; (3) knowledge of the accused as to both the substance of the charge and the nature of the accused’s rights to consult with an attorney and to remain silent; (4) whether the accused was held incommunicado or allowed to consult with relatives, friends, or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) methods used in interrogation; (7) length of interrogation; (8) whether or not the accused refused to voluntarily give statements on prior occasions; and (9) whether the accused has repudiated an extrajudicial statement at a later date. State v. McBride, 261 Ga. 60 (401 SE2d 484) (1991).

Georgia Bureau of Investigation (“GBI”) Agent Mark Pro interviewed the defendant at the Fitzgerald Police Department at 9:50 a.m. on December 30, 1995. The defendant had been placed under arrest the previous evening because he was intoxicated. Agent Pro testified that, at the time he interviewed the defendant, he was not sure why the defendant had been arrested, but that the defendant indicated he thought he had been arrested because he was intoxicated the night before. Agent Pro testified that, at the time of the interview, the defendant stated he was not under the influence of alcohol or drugs and, from his observations, the defendant did not appear to be under the influence of drugs or alcohol. The defendant did not show any outward signs that he was intoxicated; his speech was not slurred, and he did not have any difficulty walking.

The interview took place away from the jail portion of the police department in the investigator’s office. GBI Special Agent Robert Young, who was receiving field training, was present. Agent Pro advised the defendant of his Miranda rights. Agent Pro testified that he placed the waiver of rights form in front of the defendant so that he could read along and, as he read each of the Miranda rights to the defendant, he stopped and asked the defendant if he understood. Each time the defendant indicated he understood a specific right, Agent Pro put a check by that right to indicate that the defendant understood. Agent Pro testified that it appeared to him that the defendant fully understood his rights.

In order to ascertain if the defendant could read, Agent Pro had the defendant read to him from the waiver sheet. Agent Pro testified that the defendant did not have any problem reading. Agent Pro further testified that he did not offer the defendant any hope of benefit in an attempt to get him to make a statement and that no one threatened or coerced the defendant into making a statement.

After Agent Pro completed the waiver of rights form, he asked the defendant if he wanted to talk about the armed robbery which occurred at Holiday Market, located at 327 Highway 280. The defendant stated that he was willing to talk and signed the waiver of rights form. The defendant did not request á lawyer, his parents, of any other family member to be present at any time. Agent Pro further testified that the defendant was “cooperative” and “open” during the entire interview and that the interview was completed with “no conflict at all.”

The defendant stated that he had completed the eighth grade. The defendant, who was 16 years old, stated that he was 17 years of age. Agent Pro testified that he did not find out the defendant’s true age until three or four days after the interview. Agent Pro testified that, based on the defendant’s physical appearance (the defendant is six feet two inches in height and weighs one hundred ninety pounds), he had no reason to believe the defendant was not truthful about his age.

“The question of whether or not a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted unless such determination is clearly erroneous.” (Citations and punctuation omitted.) In the Interest of R. T. D., 196 Ga. App. 852, 853 (397 SE2d 189) (1990). Considering the totality of the circumstances in this case through an analysis of the nine-factor test, we find that the trial court did not err in finding the defendant’s statement to be voluntary and, therefore, admissible.

(b) Even if the defendant had not freely and voluntarily given a statement after making a knowing and intelligent waiver of his rights under Miranda, there was no reversible error in the admission of the defendant’s in-custody statement. In his previous in-custody statement, the defendant stated “Jessica’s boyfriend’s pager went off and I asked if I could see it. I got out of my truck to grab it from him. I told him that I was not going to give it back to him. I told him that if he told anyone, that I would whip his ass.” At trial, the defendant testified that “I noticed that his pager went off and I asked to see it, and he let me have a look and I said let me see your pager a minute and I’ll give it back to you, and so he handed it to me and I went and got back inside the truck and I said have a nice day, you ain’t getting it back.”

The defendant’s testimony at trial was identical to his previous in-custody statement with the exception of his description of grabbing or being given the beeper. At both trial and in his statement the defendant denied having a gun, but admitted taking the beeper from Daniels and refusing to give it back. To the extent the defendant’s statement was merely cumulative of his trial testimony, there is no reasonable possibility that the admission of the defendant’s statement might have contributed to the verdict. Therefore, the introduction by the State of that portion of the defendant’s statement, if error, was harmless beyond a reasonable doubt, especially in light of the overwhelming evidence in this case. See Williams v. State, 159 Ga. App. 508 (284 SE2d 27) (1981); see also Little v. State, 230 Ga. App. 803 (498 SE2d 284) (1998); LaRue v. State, 137 Ga. App. 762, 764 (224 SE2d 837) (1976).

Decided October 26, 1998.

David E. Morgan III, for appellant.

(c) Further, after defendant’s testimony, the trial court, at the defendant’s request, charged the jury on armed robbery, robbery by intimidation, and theft by taking. To the extent there was inconsistency in the defendant’s previous statement and his testimony at trial as to how he gained possession of the beeper, that portion of his previous statement would have been admissible at trial for the purpose of impeachment to show a prior inconsistent statement. See Mack v. State, 209 Ga. App. 104 (432 SE2d 680) (1993); Cribbs v. State, 204 Ga. App. 109 (418 SE2d 405) (1992).

In light of the overwhelming evidence in this case, there is no reasonable possibility that the admission of the defendant’s statement might have contributed to the verdict. The admission of the defendant’s in-custody statement, if error, was harmless beyond a reasonable doubt. See Little v. State, supra.

2. In three enumerations of error, the defendant challenges the sufficiency of the evidence. When reviewing a conviction, this Court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Cit.]” (Emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). While the defendant testified that he did not have a gun, Daniels was unequivocal in his testimony that the defendant pointed a gun at him and demanded his beeper. “[I]t is the function of the jury, and not this Court, to resolve conflicts in the evidence. This Court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” (Citation and punctuation omitted.) Kapua v. State, 228 Ga. App. 193, 195 (491 SE2d 387) (1997). Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find the defendant guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, supra.

Judgment affirmed.

McMurray, R J., and Blackburn, J., concur.

John C. Pridgen, District Attorney, Denise D. Fachini, Assistant District Attorney, for appellee.

       The arrest report, which the GBI did not have at the interrogation, shows the defendant’s date of birth as being June 12,1979, which would have made him sixteen years and six months old at the time of the interview.

       Under such circumstances, where the statement was introduced for purposes of impeachment only, it would be the duty of the trial court to give appropriate limiting instructions. See Jones v. State, 243 Ga. 820, 826-827 (256 SE2d 907) (1979); Tew v. State, 179 Ga. App. 369 (346 SE2d 833) (1986).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A98A2324.
    REYNOLDS v. THE STATE.
    (508 SE2d 674)
   Eldridge, Judge.

Defendant James Reynolds appeals his January 1998 conviction for robbery, aggravated assault, kidnapping with bodily injury, and simple battery. We affirm.

Viewed in the light most favorable to the verdict, the facts are as follows: At approximately 3:30 p.m. on Sunday, September 1, 1996, Reynolds, Raymond Sarluca, Michael Lettner, and Chris Jones left a party at Jones’ home in order to get some food at the grocery store. Jones, who was driving, and Lettner were in the cab of the truck, while Reynolds and Sarluca rode in the back. At some point, Reynolds saw a teenager selling newspapers from a stand and noticed that the boy was counting money. After driving by the stand, Jones briefly stopped the truck, and the men decided to rob the boy. Jones again pulled the truck in front of the stand, and Reynolds jumped out of the back. One of the men asked the boy for a newspaper, and when the boy turned toward the truck, Reynolds picked the boy up and pushed him into the back of the truck. Reynolds climbed back into the truck, and Jones accelerated away from the stand. Reynolds demanded that the boy give him the money, and he hit the boy repeatedly in the face. After robbing the boy, Reynolds ordered the boy to jump from the truck, which was still moving at approximately 25 to 45 mph. When the boy refused, Reynolds picked up the boy by the legs and threw him, head first, over the back of the truck. In the process, the boy managed to grab the tailgate of the truck, but was dragged along the pavement behind the moving truck until he could no longer hang on. He fell to the ground, got up, and attempted to get assistance at a local business. When that failed, he walked back to the newspaper stand and called the police.

In the meantime, Reynolds and his friends went to the grocery store and purchased food; they then returned to the party and conducted a barbeque. During the party, two witnesses overheard Reynolds bragging about the crime to his girlfriend.

Reynolds was arrested on October 2, 1996. At the time of his arrest, Reynolds gave the police a comprehensive statement about the crime. The statement asserted that Lettner and Sarluca were the primary actors in the crimes, but included admissions that Reynolds was an accessory. The statement was read to the jury during trial.

During his incarceration, Reynolds escaped for a brief period of time. Upon his return to jail, Reynolds shared a cell with Lettner. Reynolds voluntarily drafted a statement in which he admitted being the primary actor in the robbery, kidnapping, aggravated assault, and battery, and he gave the signed statement to Lettner. The statement was read at trial. Lettner and Sarluca separately negotiated pleas and testified against Reynolds at trial.

Reynolds was tried and convicted by a jury in January 1998. His motion for new trial was denied, and he appeals. Held:

1. In his first enumeration of error, Reynolds asserts that the evidence was insufficient to support his convictions for kidnapping with bodily injury or aggravated assault, because the State allegedly failed to prove that the use of a deadly weapon, i.e., the moving truck, caused the victim’s injuries. See OCGA §§ 16-5-21 (a); 16-5-40 (b). We find that this argument is totally without merit.

(a) Under Reynolds’ theory, the victim’s injuries were not the result of Reynolds’ act of pitching the boy off the truck, but were, instead, “caused by the victim’s holding on to the tailgate of the truck and being dragged along the ground a short period of time.” As such, Reynolds claims that the kidnapping with bodily injury conviction cannot stand.

However, had the victim not caught the tailgate and, instead, hit the road head first, he may have been more seriously injured or killed. Further, the argument fails to recognize that the crime of kidnapping with bodily injury under OCGA § 16-5-40 (b) does not require the use of a “deadly weapon,” but only that an injury — no matter how slight — occur during the kidnapping incident. In that regard, the State presented substantial evidence to show that the victim received bodily injuries during the kidnapping, including “burn marks on his body from being dragged by the truck plus numerous other bruises and abrasions.” Accordingly, the evidence was sufficient for a rational trier of fact to find Reynolds guilty of kidnapping with bodily injury beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(b) As to the aggravated assault conviction, Reynolds’ argument ignores the fact that evidence of an actual bodily injury is not required to sustain a conviction under OCGA § 16-5-21 (a) (2). See also OCGA § 16-5-20 (a). “ A person commits the offense of aggravated assault when he assaults: . . . (2) . . . with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.’ OCGA § 16-5-21. Although an automobile is not per se a deadly or offensive weapon, it may become one depending on the manner and means of the vehicle’s use. Blalock v. State, 165 Ga. App. 269, 270 (299 SE2d 753) (1983). The question of whether an automobile, or other instrumentality, has been used so as to constitute a deadly or offensive weapon is properly for the jury’s determination. Banks v. State, 169 Ga. App. 571, 572 (314 SE2d 235) (1984); Quarles v. State, 130 Ga. App. 756 (2) (204 SE2d 467) (1974). The evidence here was sufficient to enable any rational trier of fact to find the defendant guilty of the offense of aggravated assault of [the victim] beyond a reasonable doubt. [Cits.]” Spaulding v. State, 185 Ga. App. 812, 813 (366 SE2d 174) (1988). See also Cline v. State, 199 Ga. App. 532 (405 SE2d 524) (1991); Butler v. State, 196 Ga. App. 706 (396 SE2d 916) (1990).

2. In his second enumeration, Reynolds asserts that the trial court erred when it allowed the jury to hear evidence that he possessed marijuana at the time of his arrest. See OCGA § 24-9-20 (b). Reynolds was arrested on October 2, 1996, approximately one month after the crimes at issue in this case. At the time of his arrest, Reynolds had a “sack” of marijuana in his pocket and admitted such in his custodial statement to police. This statement, in which Reynolds minimized his involvement in the robbery and kidnapping of the newspaper boy, was read in its entirety to the jury over the objections of defense counsel. In admitting the evidence, the trial court ruled that all of the circumstances surrounding an arrest are admissible “for whatever weight the jury may give them” as part of the res gestae. See Henry v. State, 176 Ga. App. 462, 463 (336 SE2d 588) (1985); see also Dean v. State, 211 Ga. App. 28, 31-32 (4) (438 SE2d 380) (1993); Fuqua v. State, 183 Ga. App. 414, 419 (359 SE2d 165) (1987). The trial court also allowed the arresting police officer to testify that he found the marijuana during a pat-down of Reynolds at the time of the arrest.

Reynolds argues that evidence of his possession of a misdemeanor amount of marijuana should have been inadmissible under this Court’s ruling in Sessions v. State, 207 Ga. App. 609, 610 (2) (428 SE2d 652) (1993). Sessions involved testimony about previous similar transactions by a defendant who was on trial for entering an automobile. However, in addition to evidence describing the similar transactions, the trial court admitted evidence of alleged drug and weapon possession by the defendant at the time of the similar transactions. Id. This Court held that such evidence should have been redacted from documentary evidence and that witnesses should have been instructed to limit their testimony to the similar crimes only. Id.

Under this rationale, it follows that evidence of criminal acts that occurred at the time of the defendant’s arrest in similar offenses is inadmissible if such acts are unrelated to the crimes for which the defendant is being tried. However, Sessions is not authority for the exclusion of evidence of other crimes at the time of arrest for the case on trial and will not be extended. It is well settled that all circumstances connected with the accused’s arrest are admissible, even though they incidentally put his character in issue. McClung v. State, 206 Ga. 421, 423 (1) (57 SE2d 559) (1950); Louis v. State, 230 Ga. App. 897 (497 SE2d 824) (1998); Hyatt v. State, 210 Ga. App. 425 (436 SE2d 540) (1993); Blackshear v. State, 199 Ga. App. 839 (406 SE2d 269) (1991); Jimerson v. State, 163 Ga. App. 54 (1) (293 SE2d 513) (1982).

However, even if treated as error, in light of the overwhelming evidence of Reynolds’ guilt in this case and the exceptionally serious nature of the charges, as compared to the relatively minor drug possession allegation, we find that it is highly probable that this error did not contribute to the jury’s guilty verdict. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976); Crawford v. State, 230 Ga. App. 568 (497 SE2d 45) (1998); Query v. State, 217 Ga. App. 61, 63 (3) (456 SE2d 704) (1995); Willis v. State, 199 Ga. App. 658 (405 SE2d 739) (1991); Coney v. State, 198 Ga. App. 272, 273 (2) (401 SE2d 304) (1991); Lance v. State, 191 Ga. App. 701, 704 (4) (382 SE2d 726) (1989). Accordingly, reversal is not required.

3. Reynolds also challenges the trial court’s jury instructions on aggravated assault. The trial court initially charged the jury on aggravated assault with a deadly weapon. However, the trial court then qualified the instruction by charging on simple assault. After the jury was sent to deliberate, the State pointed out the problem with the charge. The trial court recalled the jury and instructed them that a moving truck is not a deadly weapon per se, and that they must consider all of the evidence and decide whether the moving truck was a deadly weapon for the purpose of convicting Reynolds of aggravated assault in this case. The jury deliberated eighteen minutes before returning guilty verdicts on all four counts.

“Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury[,] even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence. We do not believe that the recharge in this case would mislead a jury of average intelligence, and we find no error.” (Citations and punctuation omitted.) Taylor v. State, 195 Ga. App. 314, 315 (393 SE2d 690) (1990).

4. Finally, Reynolds asserts that he was denied effective assistance of counsel at trial. “A defendant bears the burden of establishing that his trial counsel’s performance was deficient and the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel’s unprofessional deficiencies. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). The trial court’s finding of effectiveness must be upheld unless clearly erroneous. Powell v. State, 210 Ga. App. 409, 414 (6) (c) (437 SE2d 598) (1993).” Capers v. State, 220 Ga. App. 869, 871 (470 SE2d 887) (1996). See also McCord v. State, 268 Ga. 842 (493 SE2d 129) (1997).

(a) Reynolds first asserts that trial counsel failed to utilize any peremptory strikes against potential jurors. However, the trial court, prosecutor, and defense counsel all questioned the jurors extensively during voir dire. None of the jurors indicated that they were biased or otherwise would be unable to decide the case based upon the evidence presented. Defense counsel testified during the hearing on the motion for new trial that the jurors were qualified and “I would not have left anybody on the panel that I thought would be more detrimental than those that might have gotten on the panel anyway.” Accordingly, trial counsel’s decision not to utilize his peremptory strikes appears to have been strategic in nature and is not ineffective assistance per se, as suggested by Reynolds.

(b) While trial counsel’s decision to refer to Reynolds as a “poor wretched slob” during closing arguments seems inappropriate in hindsight, counsel testified at the motion hearing that the use of such language was a trial strategy to encourage the jury to acquit Reynolds of kidnapping with bodily injury, the most serious charge. He testified that the evidence was overwhelming that Reynolds participated in these crimes and “I’d be a fool to stand up there and try to make this boy look like something other than what he was. And I think that it’s always best to come clean with the jury. The jury is made up of twelve people who are not collectively fools and this boy looked bad through that trial. And there was no doubt in my mind they were going to convict him, probably of everything but certainly of a great deal of it. And I just went ahead and tried to trump that card and argue about the kidnapping. As I said, that was my strategy throughout the whole trial and I think I would have been at odds with my strategy had I triéd to make him look like a model citizen. . . . And I used those terms, wretched, slob, whatever, sorry, because I’m sure that’s what the jury thought of him and if I was going to have any empathy from the jury for that one thing that I was trying to do, I had to tell it like it was.”

“Counsel has wide latitude in closing argument, in choice of theory to be advanced, in choice of style, tactics, language. The court will not second-guess the attorney who has undertaken the responsibility for representing his clients in their fight against the charges brought. As the Supreme Court has said: Tn closing arguments each side is permitted to make any argument which is reasonably suggested by the evidence.’ Durden v. State, 250 Ga. 325, 329-330 (297 SE2d 237) (1982). . . . The closing argument must be read in its entirety to ascertain whether counsel failed to meet the [Sixth Amendment] constitutional standards.” Kornegay v. State, 174 Ga. App. 279, 281-282 (329 SE2d 601) (1985). While trial counsel’s choice of words appears excessive when taken out of context, his argument to the jury, read as a whole, clearly demonstrated that counsel had not “joined the [Sjtate in asking for conviction or that he had abandoned the defendant[’s] cause. Quite the contrary.” Id. at 282.

Decided October 26, 1998.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, E. Wayne Jernigan, Jr., Assistant District Attorney, for appellee.

(c) Although Reynolds claims that trial counsel failed to communicate the State’s plea offers, such failure is not demonstrated by the record. As to counsel’s alleged misunderstanding regarding potential penalties for kidnapping and aggravated assault during plea negotiations, Reynolds is unable to demonstrate harm when the record shows that a subsequent offer for one life term for a kidnapping guilty plea was relayed to and rejected by Reynolds.

(d) Finally, Reynolds’ remaining examples of alleged ineffectiveness either were explained during the hearing as trial strategy or are not supported by the record. After hearing evidence and argument at the motion hearing, the trial court determined that Reynolds failed to demonstrate ineffective assistance of counsel. We agree and find no error.

Judgment affirmed.

McMurray, P. J.,,and Blackburn, J., concur.


text:
    A98A2342.
    LEMATTEY v. THE STATE.
    (508 SE2d 215)
   Eldridge, Judge.

Appellant William Jack Lemattey appeals his July 1997 conviction for armed robbery. We affirm.

In his sole enumeration of error, Lemattey asserts that the trial court erred when it refused his request to charge the jury on criminal attempt as a lesser included offense of armed robbery. Lemattey argues that his sole defense at trial was that he intended to steal a car, but failed because the car did not start when he inserted the keys, which he already had stolen from the victim at gunpoint.

However, under OCGA § 16-8-41 (a), a person commits armed robbery “when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon.” The basis of Lemattey’s indictment for armed robbery and his subsequent conviction thereon was the theft of the keys, not the car, through the use of a handgun. The victim testified at trial that Lemattey confronted him in a parking lot and demanded, at gunpoint, “Give me your keys. . . . Don’t call the police.” After reviewing the totality of the evidence, there was more than sufficient evidence to support this conviction. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The fact that Lemattey, after stealing the keys, was unable to steal the vehicle also does not make Lemattey’s actions a criminal attempt. The armed robbery, which resulted in the theft of the keys, was, in fact, a completed crime. “The trial court is obligated to give a properly requested instruction on lesser included offenses only if the evidence warrants such an instruction. [Cit.]” Padgett v. State, 170 Ga. App. 98, 99 (1) (316 SE2d 523) (1984). In this case, the jury was asked to decide whether or not Lemattey actually took the keys from the victim at gunpoint; no jury issue was presented regarding whether Lemattey attempted, but failed, to steal the keys. “Where, as here, the evidence shows either the commission of the completed offense as charged, or the commission of no offense [as to a specific count of the indictment], the trial court is not required to charge the jury on a lesser included offense.” (Citations and punctuation omitted.) Parham v. State, 218 Ga. App. 42, 44 (3) (460 SE2d 78) (1995). See also Sanders v. State, 251 Ga. 70, 77 (4) (303 SE2d 13) (1983); Prayor v. State, 217 Ga. App. 56, 58 (3) (456 SE2d 664) (1995); Williams v. State, 191 Ga. App. 913, 915 (4) (383 SE2d 344) (1989); Loggins v. State, 169 Ga. App. 511, 513 (3) (313 SE2d 769) (1984).

Decided October 26, 1998.

David E. Perry, for appellant.

Kenneth B. Hodges III, District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J, and Blackburn, J., concur.


text:
    A98A2353.
    HAMEED v. HALL et al.
    (508 SE2d 680)
   Eldridge, Judge.

On September 5, 1996, Obie A. Hameed brought suit against Loma Hall and First Union Corporation of Georgia seeking to recover from defendants for false arrest, false imprisonment, malicious prosecution, and libel and slander. On October 29, 1997, the trial court entered an order denying Hameed’s motion to correct a misnomer or add a defendant, granting defendants’ motion for summary judgment, and dismissing Hameed’s action with prejudice. On November 25, 1997, Hameed filed a notice of appeal of the October 29, 1997 order.

Hameed was billed for the preparation of the appeal record on December 3, 1997, and the bill of costs was delivered to Hameed’s counsel on December 8,1997. Hameed had not paid the cost of appeal as of February 3, 1998, and the trial court issued an order directing Hameed and his counsel to show cause on February 18, 1998, as to why Hameed’s appeal should not be dismissed. On February 5, 1998, Hameed paid the costs of appeal, which was 59 days after Hameed’s counsel had received the bill of costs.

In response to the trial court’s show cause order, Hameed presented the affidavit of his counsel averring that his delay in paying costs was occasioned by counsel’s personal difficulties, Hameed’s inability to pay, and counsel’s prior inability to advance the costs on Hameed’s behalf. Hameed presented his own affidavit averring that he did not have the $1,816 costs and that the costs had been paid by his attorney. Hameed had not previously filed an affidavit of indigence with the trial court. Also, Hameed did not give any explanation as to why co-counsel was unable to represent Hameed’s interests during the relevant time period. Further, Hameed and his counsel had known since November 25, 1997, when the notice of appeal was filed, that the costs of the record would have to be paid.

The trial court found that there had been an unreasonable delay in the transmission of the record to the appellate court, that such delay was inexcusable and was caused by the failure of Hameed to timely pay the costs in the trial court or to timely file an affidavit of indigence. The trial court further found that, “even if [Hameed’s] dilatory payment of costs or his late-filed affidavit could revive [the] appeal,” Hameed had made no efforts whatsoever to obtain the transcript of the hearing that was the subject of the appeal, even though his notice of appeal stated that the “[t]ranscript of hearings and proceedings will be filed for inclusion on the record on appeal,” and directed the clerk to “omit nothing from the record.” There was no order extending time for filing the transcript. The trial court found that the delay in filing the transcript was inexcusable and was caused by Hameed.

Based on these findings, on February 20, 1998, the trial court dismissed Hameed’s November 25, 1997 notice of appeal. It is from this order of dismissal that Hameed now appeals.

1. Hameed alleges that the trial court erred in dismissing his November 25, 1997 notice of appeal.

“Whether or not to dismiss a notice of appeal for delay in paying costs [or filing a transcript] rests in the sound discretion of the trial court when the grounds to dismiss have been met. [Cit.]” Style Craft Homes v. Chapman, 226 Ga. App. 634, 636 (487 SE2d 32) (1997). “Under OCGA § 5-6-48 (c), a trial court may dismiss an appeal where there has been an unreasonable delay in the filing of the transcript, and the delay was inexcusable and caused by the appellant. With regard to delays in transmitting an appeal record to the appellate court, ... a trial court may dismiss an appeal where the delay was unreasonable, inexcusable, and caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence.” Johnson v. Ga. Pub. Svc. Comm., 209 Ga. App. 224, 225 (433 SE2d 65) (1993). However, “no appeal shall be dismissed for failure to pay costs if costs are paid within 20 days (exclusive of Saturdays, Sundays, and legal holidays) of receipt by the appellant of notice, mailed by registered or certified mail, of the amount of costs.” OCGA § 5-6-48 (c).

Under the facts of this case, we find no abuse of discretion by the trial court in finding that there had been an unreasonable delay in the transmission of the record to the appellate court and that such delay was inexcusable and was caused by Hameed. Costs were not paid until just prior to the hearing to determine if Hameed’s appeal should be dismissed, which was 59 days after counsel received notice of the costs. Hameed’s notice of appeal had been pending 72 days, and Hameed knew from the filing of such notice of appeal that costs must be paid. He made no effort to pay costs until the show cause order was entered. Further, Hameed did not file a timely affidavit of indigence.

Additionally, we find no abuse of discretion by the trial court in finding that the delay in filing the transcript was inexcusable and was caused by Hameed. “OCGA § 5-6-42 provides that a transcript must be filed within 30 days after the filing of the notice of appeal unless the time is extended as provided by OCGA § 5-6-39.” Teston v. Mills, 203 Ga. App. 20 (416 SE2d 133) (1992). Hameed did not request an extension to file the transcript, and no transcript was filed prior to the entry of the trial court’s February 20,1998 order dismissing Hameed’s appeal, which was entered 72 days after his notice of appeal was filed. Even though a transcript of the hearing might not be necessary for appeal, Hameed designated that the transcript should be included in the record for appeal, and “it is not up to the clerk to go beyond the designation and determine [if a transcript is] necessary.” Boveland v. Young Women’s Christian Assn. &c., 227 Ga. App. 241, 242 (1) (489 SE2d 35) (1997). “As [Hameed] designated ‘all transcripts’ for inclusion in the record, it was his responsibility to ensure all transcripts were prepared and filed. [Cit.]” Id.; see also Teston v. Mills, supra (trial court properly found delay was caused by the appellant where he designated the transcript to be included as part of the record, even though there was no transcript).

Accordingly, the trial court did not err in dismissing the November 25, 1997 notice of appeal.

2. Hameed’s remaining enumerations of error arise out of the trial court’s order of October 29, 1997, which was the subject of the notice of appeal dismissed by the trial court. Having decided in Division 1 that such dismissal was proper, we need not consider these enumerations.

Decided October 26, 1998.

Patsy A. Austin, for appellant.

Smith, Howard & Ajax, John A. Howard, Brooks W. Binder III, Joseph P. Hewes, for appellees.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A98A2365.
    KELLY v. THE STATE.
    (508 SE2d 228)
   Eldridge, Judge.

Ronnie Kelly appeals from a Taylor County jury’s verdict finding him guilty of armed robbery and possession of a firearm during the commission of a felony. He alleges two errors of law, and based thereon, we affirm Kelly’s conviction.

1. Kelly first challenges the admission into evidence of his statement to the police following a Jackson-Denno hearing. Notably, before this Court, Kelly does not challenge the statement’s admissibility under the Jackson-Denno standard as having been knowingly and voluntarily made. Instead, Kelly contends that, prior to the statement’s admission, the trial court erred by failing to rule with “unmistakable clarity” that Kelly’s statement was voluntary.

We agree that the trial court failed to rule with requisite specificity that Kelly’s statement was voluntarily made prior to admitting same. Consequently, “we would remind the trial courts of this state of our preference for findings of fact which comport with the form suggested in Berry v. State, [254 Ga. 101, 104-105 (1), fn. 6 (326 SE2d 748) (1985)].” Bryant v. State, 268 Ga. 664, 667 (492 SE2d 868) (1997). Generally, such a failure would require a remand for clarification. Id.

However, “where there is no evidence which would authorize the grant of the motion to suppress, a remand is unnecessary.” Bryant v. State, supra at 667; see also Nelson v. State, 208 Ga. App. 686, 687 (1) (431 SE2d 464) (1993). In this case, a review of the transcript of the Jackson-Denno hearing shows that Kelly was fully advised of the Miranda warnings and signed a waiver of rights form. The attesting officer stated that Kelly gave his statement without inducement. Kelly presented no evidence which would authorize a finding that his statement was inadmissible for any reason, and Kelly does not contend before this Court that his statement was inadmissible for any reason. Therefore, we will not remand this case. Where “there is no evidence which would authorize the trial court to find that appellant’s statement was not voluntarily given[,] there is no reason to remand for findings of fact as to the voluntariness of appellant’s statement because no disputed question of fact relevant to that issue was ever raised and any ruling by the trial court other than to admit appellant’s statement would be erroneous.” (Citation and punctuation omitted; emphasis in original.) Nelson v. State, supra at 687.

2. Next, Kelly contends that there was a fatal variance between the indictment and the evidence offered by the State on the trial of this case. Specifically, the indictment alleged that Kelly “did unlawfully with intent to commit theft, take property, to-wit: United States currency, the property of Stuckey’s Mini-Mart, from the immediate presence of Debra Drains, by the use of an offensive weapon.” According to Kelly, however, the evidence showed that he took the money from the “immediate presence” of Inez Stuckey, not Debra Drains, because, although Drains was present, he pointed the gun at Stuckey and Stuckey handed him the money. This contention is meritless.

The ^evidence showed that the money was the property of Stuckey’s Mini-Mart, as alleged in the indictment. The evidence further showed that Debra Drains was the night cashier at the Stuckey’s Mini-Mart and was in charge of the money. At the time of the armed robbery, Drains’ shift had not ended, but Inez Stuckey, the owner, came in to the store in order to count the night deposit monies. Further, Drains was present in the store during the armed robbery as alleged in the indictment, as was Stuckey, who handed the money to Kelly during the robbery.

Here, we do not find a fatal variance between the indictment and the proof simply because Stuckey had actual possession of the money and Drains had constructive possession of it at the time Kelly committed the armed robbery. “Robbery is a crime against possession, and is not affected by concepts of ownership.” (Citations and punctuation omitted.) Snelling v. State, 215 Ga. App. 263, 268 (450 SE2d 299) (1994). Both women were subject to Kelly’s exercise of actual force by the use of an offensive weapon so as to induce the relinquishment of the property of another, i.e., the property of the Mini-Mart. Compare State v. Epps, 267 Ga. 175 (476 SE2d 579) (1996). Clearly, the gun did not have to be pointed at any particular person in order for that person to qualify as the “victim” of the armed robbery; the gun need only be used in a fashion that demonstrates its nature as an offensive weapon available for use upon the persons in the “immediate presence” thereof and in actual and/or constructive possession of the relinquished property that is the subject of the robbery. Id.

Decided October 26, 1998

Hagler, Hyles, Adams & McKenna, Clark C. Adams, Jr., for appellant.

J. Gray Conger, District Attorney, Monza Whitaker, Assistant District Attorney, for appellee.

In that regard, the essential elements of armed robbery are: “when, with intent to commit a theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon.” (Citations and punctuation omitted; emphasis in original.) McKisic v. State, 238 Ga. 644, 646 (2) (234 SE2d 908) (1977); Page v. State, 191 Ga. App. 420 (382 SE2d 161) (1989). See also OCGA § 16-8-41. Thus, herein, the identity of the person alleged to have been robbed is not an essential element of the crime so as to create a fatal variance. Page v. State, supra at 421; Campbell v. State, 223 Ga. App. 484, 485 (477 SE2d 905) (1996).

As a matter of law, “[t]he general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.” (Citations and punctuation omitted.) DePalma v. State, 225 Ga. 465, 469-470 (169 SE2d 801) (1969). Any variance complained of here would not subject the accused to either of these dangers.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

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

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).


text:
    A98A2386.
    HUDSON v. THE STATE.
    (508 SE2d 682)
   Eldridge, Judge.

Defendant George Sherman Hudson III appeals his January 1997 conviction for armed robbery. We affirm.

“On appeal[,] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this [Cjourt determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). The facts, viewed in this light, are as follows: On August 2, 1996, Hudson traveled from his home in Atlanta to Augusta, Richmond County, and checked into a Red Carpet Inn. He then drove to the Professional Detail Shop on Walton Way (“the shop”) to see the owner, Darrell Rouse, a/k/a “Shaq.” Rouse allegedly owed Hudson $3,800. A shop employee testified that he noticed that Hudson had a .357 revolver on the front seat of his car. When Hudson realized that Rouse was not at the shop, he instructed shop employees to “tell him [Rouse] I’m looking for him” and then left.

A week later, on August 8,1996, Hudson returned to Augusta in a Ford Explorer with his cousin, Reginald Leon Walker, and an acquaintance, Thad Christopher McClamey. The men went to the shop and asked to see Rouse, who was not there. While waiting for Rouse to return, the men decided to get the Ford Explorer washed and a shop employee took the keys. Within a few minutes, Rouse arrived at the, shop with two friends in his rented Toyota Camry. Rouse went into the shop office with Hudson, Walker, and McClamey, where they engaged in a heated argument. As Rouse attempted to exit the office, Walker shot him in the leg, arm, and chest. Rouse collapsed and died in the parking lot. As they attempted to leave the scene, the three co-defendants were unable to find the keys to the Ford Explorer, so they took Rouse’s rented Toyota. They drove the car to the Columbia, South Carolina airport and took an airplane back to Atlanta.

When the police arrived at the shop within minutes of the shooting, they found the Ford Explorer in the back parking lot with its doors open. Inside the vehicle, police found, inter alia, Hudson’s driver’s license and ammunition for an automatic weapon. That evening, Hudson contacted the Richmond County Sheriff’s Department and admitted that he was “involved” in the shooting at the shop. He was subsequently arrested and charged with murder, felony murder, armed robbery, and possession of a firearm during the commission of certain crimes.

Although Hudson and McClamey both filed and argued motions to sever, such motions were denied by the trial court. A joint trial was conducted, with each defendant represented by individual defense counsel. At trial, the State presented the testimony of several witnesses to the shooting and/or the subsequent theft of Rouse’s car. Neither Hudson nor McClamey testified. However, co-defendant Walker took the stand and admitted shooting Rouse, claiming self-defense. After hearing the evidence, a jury convicted Hudson of armed robbery and acquitted him of the other charges. Hudson’s motion for new trial was denied by the trial court, and he appeals.

1. (a) In his first three enumerations, Hudson contends that the evidence was insufficient to support his conviction for armed robbery because he and his co-defendants took the victim’s car as an “afterthought,” i.e., after they were unable to find the keys to the Ford Explorer. As such, he claims that he lacked the requisite intent to commit theft prior to the death of the victim.

However, similar contentions have been rejected repeatedly by this Court and the Supreme Court of Georgia. “Under OCGA § 16-8-41 (a), a person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. The force or intimidation essential to robbery must either precede or be contemporaneous with, and not subsequent to, the taking. Young v. State, 251 Ga. 153, 157 (303 SE2d 431) (1983).” (Punctuation omitted.) Lowery v. State, 209 Ga. App. 5, 6 (1) (432 SE2d 576) (1993). “Where, as here, the evidence is sufficient to authorize a finding that the theft was completed after force was employed against the victim, a conviction for armed robbery is authorized regardless of when the intent to take the victim’s property arose, regardless of whether the victim was incapacitated and even if the victim had been killed instantly.” (Citations and punctuation omitted; emphasis in original.) Francis v. State, 266 Ga. 69, 70-71 (463 SE2d 859) (1995).

(b) Contrary to Hudson’s contentions otherwise, this Court’s holding in Lowery v. State, supra, is applicable herein. In Lowery, a defendant shot his sister and, several minutes later, sexually assaulted her, took her money, and left her to die. However, his sister staggered to the road, where she was discovered by a church group on a hay ride. Following a jury trial, the defendant was convicted of, inter alia, armed robbery. In rejecting the defendant’s argument that he could not be convicted of armed robbery because of the time span between the use of the weapon .and the theft of the money, this Court found that, without the shooting, the theft could not have been accomplished, so that “[t]he relatively brief passage of time between the shooting and the taking in this case does not sever that connection between the two acts.” Id. at 6. Such holding is just as applicable in the case before us, which clearly involved an even shorter period of time than that exhibited in Lowery.

(c) Further, although the evidence supported a finding that Hudson had a handgun in his possession at the time of the crime, even if the jury had determined that he was unarmed at the time of the crime, he still could have been convicted of armed robbery. The undisputed evidence showed that Hudson participated in confronting Rouse immediately prior to the moment when Walker shot and killed Rouse, and that Hudson then left the shop with his co-defendants in Rouse’s car. Accordingly, he was, at a minimum, a party to the crime of armed robbery, and the jury was so charged. See OCGA §§ 16-2-20 (b) (3); 16-2-21.

“Construing the evidence most strongly in favor of the State, it was sufficient to authorize a rational trier of fact to find proof of [Hudson’s] guilt of armed robbery . . . beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Francis v. State, supra at 71 (1).

2. In his next enumeration, Hudson asserts that the trial court erred when, “after finding a Batson violation in regard to juror number twelve[,] failed to reseat said struck juror or follow the proper procedures in remedying the violation.” However, the trial transcript clearly shows that the trial court, in fact, did not find a Batson violation. The State utilized five of its six strikes against African-American females. When defense counsel objected and asserted a Batson violation, the State articulated specific, race-neutral reasons for each strike. After defense counsel challenged these reasons, the trial court made the following statement: “Let’s just take for example that I find the first one that you’ve raised, number 12, as not being — [the State] had not given a sufficient reason for that.” (Emphasis supplied.) He then speculated that, if he put juror no. 12 back on the jury, then he would have to take off another female African-American, “so I haven’t accomplished anything.” Defense counsel then continued to argue that the five jurors were illegally struck and suggested several procedures for reseating these jurors on the panel if the trial court determined that the strikes were improper. The State responded with additional, specific justifications for the strikes. Following such arguments, the trial court denied the Batson motion, determining that the defendants did not prove that the State acted with discriminatory intent in exercising its strikes.

Accordingly, the trial court properly followed the three-step procedure in addressing the Batson objection. See Jackson v. State, 265 Ga. 897, 898-899 (2) (463 SE2d 699) (1995); Gardner v. State, 225 Ga. App. 427 (483 SE2d 912) (1997). “[U]nder Purkett [v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834) (1995),] the ultimate Batson appellate inquiry concerns only whether the trial court’s credibility determination that racial motivation did not exist was clearly in error.” (Emphasis omitted.) Id. at 431. In this case, we find no such error.

3. In his final enumeration, Hudson complains that he was denied effective assistance of counsel at trial due to an alleged “conflict of interest” with his appointed counsel. Hudson asserts that trial counsel failed to give him discovery materials to review prior to trial; failed to interview certain witnesses; failed to file a motion to sever on his behalf; and “was affiliated” with the victim’s family. Hudson also contends that, because he had complained to the State Bar immediately prior to trial about counsel’s performance in preparing for trial, counsel should have notified the trial court of such conflict of interest, so that new counsel could be appointed. However, Hudson has-failed to demonstrate an actual conflict of interest with counsel, that counsel’s performance was deficient, or that any alleged deficiency adversely affected the outcome of the trial.

(a) Hudson asserts that an actual conflict of interest existed on two fronts: (1) that counsel previously was “affiliated” with the victim’s family, and (2) that a conflict arose when he filed a complaint with the State Bar against counsel.

However, Hudson failed to provide any evidence that an association between counsel and the victim’s family ever existed. Further, even if the trial court had accepted Hudson’s assertion of such potential conflict, prejudice to the defendant “is presumed only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance.” (Citations and punctuation omitted.) Weeks v. State, 190 Ga. App. 373, 374 (378 SE2d 895) (1989). See also Hill v. State, 269 Ga. 23, 24 (494 SE2d 661) (1998); Hudson v. State, 250 Ga. 479, 482 (299 SE2d 531) (1983); Bertholf v. State, 224 Ga. App. 831, 832-833 (2) (a) (482 SE2d 469) (1997); Datz v. State, 210 Ga. App. 517, 518 (3) (b) (436 SE2d 506) (1993). Nothing in the record shows that, if counsel previously worked with members of the victim’s family, such relationship still existed or that any past relationship affected counsel’s performance to Hudson’s detriment. See Division 3 (b), infra. Accordingly, this claim is without merit.

Further, counsel’s testimony at the hearing on Hudson’s motion for new trial demonstrated that, when counsel announced ready for trial, he was not aware that Hudson had filed a State Bar complaint against him a few days earlier. The evidence showed that Hudson sent a letter to the State Bar complaining of counsel’s pre-trial performance on January 11, 1997. The letter was received by the State Bar on January 16,1997. In the meantime, the trial started on January 14 and concluded on January 16, 1997. Counsel testified at the hearing on Hudson’s motion for new trial that he first became aware of the State Bar complaint in February 1997, when he received a letter from the State Bar. Although Hudson claims that, during the trial, he sent a note to the trial court informing it of the State Bar complaint, the trial court denied that it ever received such note.

There can be no error in counsel’s failure to notify the trial court of an alleged conflict of which he is unaware. Accordingly, we find no error in counsel’s representation of Hudson at trial under these circumstances.

(b) Hudson’s remaining allegations of an “actual conflict of interest” are, in fact, assertions of disagreements he had with counsel concerning pre-trial communications and trial strategies. As such, Hudson was not entitled to a new trial simply because he was dissatisfied with counsel’s performance unless he can demonstrate “that counsel’s performance was deficient and that this deficiency prejudiced the outcome of the case. [Cit.]” Hammonds v. State, 218 Ga. App. 423, 424 (1) (461 SE2d 589) (1995). See also Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984); Cotton v. State, 223 Ga. App. 288, 289-290 (2) (477 SE2d 425) (1996); Datz v. State, supra at 519 (3) (d). “There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy. [Cit.]” Id. at 518 (3). “The fact that [the defendant] and his present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that [the defendant] received representation amounting to ineffective assistance of counsel. This is true even if trial counsel’s tactics or strategy may have been unwise.” (Citations and punctuation omitted.) Ross v. State, 231 Ga. App. 793, 799 (7) (499 SE2d 642) (1998). Further, “a trial court’s finding that [the defendant] had been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous [cit.]; the trial court’s findings were not clearly erroneous.” Datz v. State, supra at 519 (3) (d).

Before reviewing Hudson’s assertions concerning asserted deficiencies in trial counsel’s performance, we note that the evidence presented at trial was overwhelming and undisputed that Hudson actively participated in the incident which resulted in the death of Rouse and the subsequent theft of his vehicle. The evidence showed that Hudson had been to Augusta a week prior to the incident; that he was looking for Rouse; and that Hudson possessed a .357 revolver during this prior visit. Shop employees identified Hudson as being one of the three men who arrived at the shop on the day of the murder and who subsequently confronted Rouse in his office. Hudson’s driver’s license was found in the Ford Explorer that Hudson and his co-defendants abandoned at the scene after they escaped in Rouse’s vehicle.

(i) Hudson does not challenge the trial court’s decision not to sever the trial but, instead, asserts that he instructed counsel to file such motion and that counsel allegedly failed to do so as quickly as Hudson desired. Hudson asserts that such failure amounted to a deficiency entitling him to a new trial. However, counsel did, in fact, file a timely motion to sever. In addition, counsel for his co-defendant, McClamey, filed a motion to sever. Both motions were argued pre-trial and were denied by the trial court. Accordingly, Hudson is unable to demonstrate that counsel’s performance was deficient or that any harm resulted from counsel’s allegedly delayed, yet timely, filing of a motion to sever.

(ii) Next, Hudson complains that counsel met with him only three times between the time of counsel’s appointment to the case and the trial two weeks later. However, counsel asserts that he met with Hudson at least five times in the same two-week period; that they reviewed the evidence together; and that they discussed trial strategy. “There exists no specified amount of time which a counsel must spend in preparation for trial; each situation must be judged upon its own circumstances and in light of its own degree of complexity. [Cit.]” Datz v. State, supra at 518 (3) (a). Under the facts of this case, the trial court’s determination that counsel’s pre-trial preparation was not deficient was not clearly erroneous.

(iii) Hudson complains that counsel should have filed a motion in limine to exclude statements by two shop employees which established that Hudson previously had come to the shop looking for Rouse while in possession of a revolver, asserting that the prejudicial effect of the testimony greatly outweighed its probative value. However, this evidence is clearly probative of Hudson’s active participation in the crime, countering any assertion that Hudson was merely present at the scene. Such evidence was admissible, with its weight to be determined by the jury, even if it incidentally placed Hudson’s character in evidence. See Walraven v. State, 250 Ga. 401, 407 (4) (b) (297 SE2d 278) (1982); Sabo v. State, 226 Ga. App. 106, 108 (485 SE2d 591) (1997); Johnson v. State, 224 Ga. App. 568, 569-570 (481 SE2d 268) (1997); Jackson v. State, 209 Ga. App. 217, 219-220 (3) (433 SE2d 655) (1993). “Moreover, admission of evidence is within the sound discretion of the trial court and appellate courts will not interfere absent abuse of that discretion. Evidence having a tendency to establish facts in issue is relevant and admissible, and no matter how slight the probative value, our law favors admission of relevant evidence. [Cit.]” Mantooth v. State, 197 Ga. App. 797, 800 (5) (399 SE2d 505) (1990). Accordingly, counsel’s failure to file a motion in limine to exclude admissible evidence or to object to such evidence at trial does not demonstrate deficient performance by counsel. See Williams v. State, 234 Ga. App. 191, 193-194 (2) (b) (506 SE2d 237) (1998); Ross v. State, supra at 799 (9).

Decided October 26, 1998.

Jeffrey S. Bowman, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Further, testimony by a police officer that Hudson called him and admitted being “involved” in the incident was merely cumulative of the overwhelming evidence that Hudson was an active participant in both Rouse’s murder, of which he was acquitted, and the armed robbery. Even if the failure to object to such testimony was evidence of counsel’s deficient performance, it is unlikely that such deficiency contributed to the jury’s decision to convict Hudson of the armed robbery. See Caston v. State, 178 Ga. App. 752, 754 (1) (344 SE2d 725) (1986). Accordingly, there was no error.

(iv) As to Hudson’s remaining examples of counsel’s alleged deficient performance, we find that such allegations either are not supported by the record, involved issues of credibility which were resolved by the trial court, were explained by counsel as decisions regarding trial strategies, or involved disputes which occurred after the trial. There was no error in the trial court’s rejection of Hudson’s allegations and in its finding that Hudson received effective assistance of counsel.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       Co-defendant McClamey also was convicted of armed robbery, while Walker was convicted of felony murder, armed robbery, and possession of a firearm during the commission of certain crimes.

       See Francis v. State, 266 Ga. 69, 70 (463 SE2d 859) (1995); Crowe v. State, 265 Ga. 582, 594 (21) (458 SE2d 799) (1995); Prince v. State, 257 Ga. 84, 85 (1) (355 SE2d 424) (1987); Davis v. State, 255 Ga. 588, 593 (3) (b) (340 SE2d 862) (1986); Young v. State, 251 Ga. 153, 156 (3) (303 SE2d 431) (1983); Wynn v. State, 228 Ga. App. 124, 126 (1) (491 SE2d 149) (1997).

        Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       The remaining portion of Hudson’s statement was excluded by the trial court upon objection by counsel for Hudson and each of his co-defendants, because of an alleged failure by the State to provide the complete statement during discovery and because the statement implicated Hudson’s co-defendants.


author: Ruffin, Judge. Pope, Presiding Judge,

text:
    A98A1304.
    In the Interest of B. C. G., a child.
    (508 SE2d 239)
   Ruffin, Judge.

A juvenile court found B. C. G. deliquent for the offenses of driving under the influence of marijuana and possession of less than one ounce of marijuana. On appeal, B. C. G. asserts the trial court erred in (1) denying his motion to suppress all evidence resulting from the traffic stop and (2) denying his motion for a directed verdict because of a fatal variance between the State’s allegations and its proof at trial. Because the trial court erred in denying his motion to suppress, we reverse.

On April 26, 1997, at approximately 5:00 p.m., Officer David Alan Borgen of the Gwinnett County Police Department observed a black pickup truck, with two males apparently under the age of sixteen in the bed of the truck, traveling northbound on Old Peachtree Road near Collins Hill Road. Officer Borgen stopped the vehicle, confirmed that the two individuals in the back of the pickup truck were fifteen and sixteen years old, and asked the driver, B. C. G., for his driver’s license and insurance. Officer Borgen testified B. C. G. “had his hat pulled down low and would not look at me. During the stop when I was asking him about the individuals in the back of the pickup truck, I smelled what I believed to be marijuana coming from the cab of the pickup truck.” He asked B. C. G. to look at him and noticed that “his eyes were very pinpointed.” At that point, Officer Borgen asked B. C. G. to step out of the vehicle.

Officer Borgen testified that B. C. G. answered “yes” when asked if he had been smoking marijuana that day and whether he had any marijuana on him at the time. B. C. G. responded to the latter question by reaching into his left front pocket and pulling out a zip-locked bag containing suspected marijuana. After B. C. G. handed him the suspected marijuana, Officer Borgen arrested him for possession of marijuana and suspicion of DUI.

Officer Borgen stopped the vehicle because he believed B. C. G. violated OCGA § 40-8-79, which prohibits a driver from allowing a person under the age of 18 to ride as a passenger in the uncovered bed of a pickup truck on an interstate highway. OCGA § 40-8-79. However, he did not issue B. C. G. a citation for this offense. After the stop, he also observed that B. C. G.’s vehicle had a drive-out tag, but the tag was found to be proper. Upon cross-examination, Officer Borgen stated he saw no evidence of any unsafe driving.

At the contemporaneous motion to suppress hearing and trial on December 17,1997, the State and B. C. G. stipulated the chain of custody for the testing and test results of the marijuana, blood, and urine samples. The parties stipulated that subsequent to the traffic stop, Officer Borgen seized a small zip-locked bag of marijuana from B. C. G. During the stop, B. C. G, pursuant to the Implied Consent Law, gave a blood and urine sample to Officer Borgen. The parties further stipulated that Gwinnett County Police Department’s Marijuana Lab Analysis identified the substance in the zip-locked bag as 0.80 grams of marijuana, that the blood specimen tested negative for marijuana, and that the urine specimen contained a metabolite of marijuana.

1. We first address B. C. G.’s contention that the trial court erred in denying his motion for a directed verdict because there was a fatal variance between the State’s allegations and its proof at trial. “On appeal the evidence must be viewed in a light most favorable to support the findings and judgment.” In the Interest of A. D. C., 228 Ga. App. 829, 830 (493 SE2d 38) (1997). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

“The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.” (Citations and punctuation omitted.) Dobbs v. State, 235 Ga. 800, 801-802 (3) (221 SE2d 576) (1976).

B. C. G. argues that the State’s charges were misleading and confusing for three reasons. First, he contends that under the citation issued by Officer Borgen, the State alleges he violated OCGA § 40-6-391 (a) (2), which prohibits driving under the influence of any drug to the extent it is less safe for the person to drive, when in fact no evidence of unsafe driving was presented at trial. Second, he asserts that the State’s petition, inconsistent with the officer’s citation, charged him with violating OCGA § 40-6-391 (a) (5), which prohibits driving with 0.10 grams or more of alcohol, instead of OCGA § 40-6-391 (a) (6), which prohibits driving a moving vehicle while there is any amount of marijuana in the accused’s urine. Finally, he contends the State erroneously charged him with driving with any amount of marijuana in his urine, when the State was only able to prove he had a metabolite of marijuana in his urine. These arguments are without merit.

B. C. G.’s claim that the inconsistencies between the citation and petition prohibited him from preparing a proper defense must fail because he had no reason to believe that the State would proceed under the citation. The State’s petition, rather than the traffic citation, was the vehicle through which B. C. G. was charged. Pursuant to OCGA § 15-11-49 (g), this case, involving a serious traffic offense, was handled as a deliquency offense; thus, the State was required to file a summons and petition upon B. C. G. OCGA § 15-11-49 (g). See also In the Interest of B. G. W. III, 218 Ga. App. 384 (2) (461 SE2d 568) (1995). Moreover, the traffic citations were not attached to the petition.

Likewise, B. C. G.’s argument that the petition improperly charged him with violating OCGA § 40-6-391 (a) (5) instead of subsection (a) (6) must fail. Under Georgia law “the description of the offense charged prevails over any Code section cited.” (Citation omitted.) Mullinax v. State, 231 Ga. App. 534 (1) (499 SE2d 903) (1998). See also Smith v. State, 178 Ga. App. 300 (1) (342 SE2d 769) (1986); State v. Black, 149 Ga. App. 389, 390 (254 SE2d 506) (1979). Count 1 of the State’s petition charges B. C. G. with “unlawfully driving] a moving vehicle while there was any amount of marijuana in the accused’s urine,” which clearly tracks the language of OCGA § 40-6-391 (a) (6).

Lastly, because the State properly charged B. C. G. under OCGA § 40-6-391 (a) (6), despite its reference to subsection (a) (5), it is of no consequence that the petition did not specifically set forth that B. C. G. unlawfully drove a moving vehicle with a “metabolite” of marijuana. Even assuming, arguendo, that a “metabolite of marijuana” is different from “marijuana” itself, as B. C. G. suggests, he was placed on notice that he was being charged under OCGA § 40-6-391 (a) (6), which clearly provides that if “there is any amount of marijuana . . . present in the person’s . . . urine, . . . including the metabolites,” he “shall not drive or be in actual physical control of any moving vehicle.” (Emphasis supplied.) OCGA § 40-6-391 (a). “Variance between the allegata and probata is not fatal unless it misinforms the defendant as to the charges against him or leaves him open to subsequent prosecutions for the same offense.” (Citations and punctuation omitted.) Dobbs v. State, 204 Ga. App. 83, 84 (2) (418 SE2d 443) (1992). See, e.g., Duggan v. State, 225 Ga. App. 291, 297 (8) (483 SE2d 373) (1997) (an indictment which tracked the language of felony homicide by vehicle sufficiently informed the defendant of the charges against him even though the indictment cited the statute for misdemeanor homicide by vehicle).

Accordingly, we find that there was no fatal variance between the State’s petition and its proof at trial.

2. B. C. G. also asserts the trial court erred in denying his motion to suppress, contending the officer lacked an articulable suspicion to stop his vehicle. We agree.

As is the case here, “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 appellate review.” Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). See also State v. Armstrong, 223 Ga. App. 350 (477 SE2d 635) (1996).

“When a police officer makes a stop and restrains an individual’s freedom to depart, that person is seized. The Fourth Amendment requires that the seizure be reasonable to assure the individual is not subject to the discretion of the official in the field.” (Citations and punctuation omitted.) Armstrong, supra at 351 (1). “A brief investigative stop of a vehicle by a law enforcement officer is considered reasonable if it is justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” (Citations and punctuation omitted.) Id. The stop is illegal “if based only on an unparticularized suspicion or hunch,” and “[t]here must be a specific, articulable suspicion which is determined by looking at the totality of the circumstances.” (Citations and punctuation omitted.) Id. See also Vansant, supra at 320 (2).

We have previously held “[i]f the officer acting in good faith believes that an unlawful act has been committed, his actions are not rendered improper by a later legal determination that the defendant’s actions were not a crime according to a technical legal definition or distinction determined to exist in the penal statute” because “[i]t is not the officer’s function to determine on the spot such matters as, e.g., jurisdiction or the legal niceties in definition of a certain crime, for these are matters for the court.” (Citations omitted.) State v. Webb, 193 Ga. App. 2, 3 (1) (386 SE2d 891) (1989). See also Armstrong, supra; Allenbrand v. State, 217 Ga. App. 609, 610 (1) (458 SE2d 382) (1995). Nevertheless, where a statute upon which an officer bases his stop is later determined to have not been violated, the stop still must be “justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” (Citations omitted.) State v. Jones, 214 Ga. App. 593, 594 (448 SE2d 496) (1994). See also State v. Goodman, 220 Ga. App. 169 (469 SE2d 327) (1996); Clark v. State, 208 Ga. App. 896 (432 SE2d 220) (1993) (physical precedent only).

B. C. G. argues he did not violate OCGA § 40-8-79, which prohibits a driver from allowing a person under the age of 18 to ride as a passenger in the uncovered bed of a pickup truck on an interstate highway, because he was not driving on such a highway. OCGA § 40-8-79. Officer Borgen testified that he did not see B. C. G. driving in an unsafe manner, nor did he observe any equipment violations of the pickup truck prior to the stop. Rather, the sole reason he stopped B. C. G. was because he had minors riding as passengers in the back of his truck. Since Georgia law allows minors to ride in such a manner, so long as it is not on an interstate highway, there was no basis for Officer Borgen to believe that B. C. G. was in violation of any traffic law prior to the stop. OCGA § 40-8-79. Because there were no other circumstances to warrant the stop, we find that Officer Borgen’s stop of B. C. G.’s vehicle was not justified by any articulable facts sufficient to give rise to a reasonable suspicion of criminal activity. See Jones, supra; Goodman, supra; Clark, supra.

Although the State urges us to view Officer Borgen’s mistake as a mere technical violation of the statute at issue, we cannot do so. The State points to cases where, despite the fact that there was no actual violation of the statute which predicated the stop, we found that the trial court was correct in denying the defendant’s motion to suppress. However, these cases are distinguishable. For instance, in Armstrong, supra, the defendant was found not to have technically violated the “laying drag” statute because he did not specifically “cause the vehicle to move in a zigzag or circular course or to gyrate or spin around.” Id. at 350 (citing OCGA § 40-6-251). Nonetheless, the officer had a reasonable, articulable suspicion to stop the defendant because “[t]he totality of circumstances . . . consisted of [the defendant] driving his truck in a crowded parking lot on Christmas Eve in such a manner as to endanger others’ safety.” Id. at 351. See also Webb, supra at 3-4 (1) (defendant’s u-turn was not technically a traffic violation, but there was evidence he made the turn in a furtive manner to evade a roadblock); Allenbrand, supra at 610 (1) (defendant’s acquittal for failure to maintain lane charge did not invalidate the stop where the officer observed him weaving in his lane and crossing the line).

Instead, we find this case more analogous to Jones, supra. There, the defendant was stopped for failing to signal a u-turn and subsequently was cited for DUI and making an improper turn. Id. at 593. Because the statute requires the use of a turn signal only if necessary and there were no other drivers on the road at the time, it was later determined that the defendant did not violate the statute. Id. at 594. Consequently, “[t]he officer’s stop . . . was not justified in that the officer . . . did not testify to any facts that would indicate the appellee was about to violate the law in any manner.” Id. See also Goodman, supra; Clark; supra.

Because the stop constituted an unreasonable search, we find that the trial court erred in denying B. C. G.’s motion to suppress any evidence the State gained as a result.

Judgment reversed.

Beasley, J., concurs. Pope, P. J., concurs specially.

Pope, Presiding Judge,

concurring specially.

I concur specially in Division 2. While ultimately the trial court’s denial of the motion to suppress was incorrect and I agree that reversal is necessary, my rationale for arriving at this conclusion differs from that of the majority.

Officer Borgen testified that he stopped the vehicle because he thought B. C. G. had violated OCGA § 40-8-79, which prohibits a driver from allowing a person under the age of 18 to ride as a passenger in the uncovered bed of a pickup truck on an interstate highway. Borgen testified that he thought the two people in the back of the pickup truck were under the age of sixteen and stopped the vehicle. Borgen testified that his understanding of the law “is that anybody under the age of 16 cannot ride in any type of pickup truck whether it’s covered or uncovered on the roads or highways of the state.” He stated that he obtained this information from a recently amended “cheat sheet” which had circulated around his office.

“A brief investigative stop of a vehicle by a law enforcement officer is considered reasonable it if is justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” State v. Armstrong, 223 Ga. App. 350 (477 SE2d 635) (1996). This Court has made clear that “[w]hether a citation is issued is of no consequence in determining the officer’s probable cause to stop the vehicle.” (Citation and punctuation omitted.) Allenbrand v. State, 217 Ga. App. 609, 610 (1) (458 SE2d 382) (1995). In State v. Armstrong, this Court emphasized that it was the totality of the circumstances which established whether specific, articulable suspicion existed. The court stated: “we have rejected the notion that the police officer must know with certainty that each element of a particular crime could be established.” (Citations and punctuation omitted.) Id. at 351-352. Thus, the fact that B. C. G. was not cited with a violation of OCGA § 40-8-79 is not determinative.

Nevertheless, the totality of the circumstances established that Officer Borgen did not have a reasonable, articulable suspicion when he stopped the truck. He testified that his sole reason for stopping the truck was his impression that OCGA § 40-8-79 was being violated. Nevertheless, Borgen’s understanding of OCGA § 40-8-79 was flawed in two ways which were potentially detrimental to B. C. G.: 1) he thought that the statute applied to all roads and highways; and 2) he thought the statute pertained to both covered and uncovered pickup trucks. Because of Borgen’s mistake of law, his articulable suspicion was unreasonable and the stop was invalid.

Decided October 27, 1998.

Chandler & Britt, Walter M. Britt, Deborah F. Weiss, for appellant.

Daniel J. Porter, District Attorney, Dawn H. Taylor, Assistant District Attorney, for appellee.


author: Pope, Presiding Judge.

text:
    A98A1365.
    ROSS v. THE STATE.
    (508 SE2d 424)
   Pope, Presiding Judge.

Douglas Ross was charged by accusation with resisting arrest, attempting to elude police, speeding, driving with a suspended license, reckless driving and improper passing. Ross denied the charges and opted to be tried before a judge sitting without a jury. At the bench trial, the arresting officer was the only witness for the state and Ross was the only witness for the defense. After the close of all the evidence, Ross made various motions, including an oral motion to quash the reckless driving charge. The court denied the motion to quash, but “directed a verdict” on the resisting arrest charge and found Ross not guilty of speeding. The court convicted him of the four remaining charges. Ross appeals.

Ross’ sole argument on appeal is that the court erred in denying his motion to quash the charge of reckless driving because the accusation fails to allege the essential elements of the offense. Ross’ argument is correct and, contrary to the state’s claim, his oral motion made at the close of the evidence was not untimely.

“Rule 31.1 of the Uniform Superior Court Rules does require all motions and demurrers to be made and filed at or before the time of arraignment unless the time is extended in writing by the judge. In addition, OCGA § 17-7-111 requires such motions to be made in writing. These rules, however, do not preclude an oral objection to the sufficiency of an indictment or accusation at any time during trial if it is so defective that judgment upon it would be arrested. Where the accused desires to take exception to the form of an indictment or accusation, it is essential that he should do so by a demurrer or motion to quash, made in writing and before pleading to the merits. If, however, the indictment or accusation is so defective that judgment upon it would be arrested, attention may be called to this defect at any time during the trial, and it may be quashed on oral motion.” (Citations and punctuation omitted.) Pullen v. State, 199 Ga. App. 881 (406 SE2d 283) (1991). “A general demurrer challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment. All exceptions which go merely to the form of an indictment shall be made before trial.” (Citations, punctuation and emphasis omitted.) Dunbar v. State, 209 Ga. App. 97, 98 (2) (432 SE2d 829) (1993).

In the current case, Ross did not except merely to the form of the accusation, but asserted that the substance of the accusation is defective in that it fails to allege the essential elements of reckless driving. Consequently, his oral objection at the close of the evidence was a timely challenge to the substance of the accusation. Compare Bramblett v. State, 239 Ga. 336, 337-338 (1) (236 SE2d 580) (1977); State v. O’Quinn, 192 Ga. App. 359, 360-361 (2) (384 SE2d 888) (1989).

Not only was Ross’ challenge timely, it was also correct. “The true test of the sufficiency of an indictment or accusation or citation is not whether it could have been made more definite and certain or, for that matter, perfect, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. Thus, if the accused can admit all the indictment or accusation or citation charges and still be innocent of having committed any offense, the indictment or accusation or citation is defective.” (Citations and punctuation omitted.) Thomason v. State, 196 Ga. App. 447, 448 (2) (396 SE2d 79) (1990).

In the instant case, the accusation does not contain the essential elements of the offense of reckless driving. The essential elements of the offense are set forth in OCGA § 40-6-390 (a), which provides: “Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving.” (Emphasis supplied.) The accusation in this case charges Ross with “RECKLESS DRIVING, for that he did in Troup County, Georgia, on or about the 5th day of July, 1997, then and there unlawfully drive motor vehicle on a public highway of this state in a reckless manner contrary to the laws of said State, the peace, good order and dignity thereof.” This accusation fails to include the crucial language that Ross drove with reckless disregard for the safety of persons or property. See Duggan v. State, 225 Ga. App. 291, 297 (8) (483 SE2d 373) (1997). The accusation is therefore substantively defective; Ross could admit all the allegations of the accusation and still be innocent of reckless driving because there would be no admission that he recklessly disregarded the safety of persons or property. Because the accusation is substantively defective in that it does not set forth an offense, the trial court erred in denying Ross’ motion to quash the accusation. See Pullen v. State, 199 Ga. App. at 882.

Decided October 27, 1998.

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

Jack Kirby, Solicitor, for appellee.

Judgment reversed.

       In a bench trial there is no verdict. Thus, instead of directing a verdict, the judge should have simply acquitted Ross of the resisting arrest charge. See Jones v. State, 226 Ga. App. 608, 609 (487 SE2d 89) (1997).


author: Beasley, Judge.

text:
    A98A2441.
    LAWRENCE v. THE STATE.
    (508 SE2d 238)
   Beasley, Judge.

Having negotiated a plea agreement of fifteen years to serve six and a $90,000 fine, Irving and Renee Lawrence pled guilty to conspiracy to defraud the State (OCGA § 16-10-21 (a)) and Medicaid fraud (OCGA § 49-4-146.1 (b) (2)). The court rejected the negotiated plea and sentenced both defendants to the maximum time of 15 years to serve. Both defendants moved to withdraw their guilty pleas on the grounds that in rejecting the plea agreement, the court did not follow the requirements of State v. Germany, 246 Ga. 455, 456 (1) (271 SE2d 851) (1980), later codified in Uniform Superior Court Rule 33.10. The court denied the motion, reasoning it had substantially followed the mandates of Germany and Rule 33.10. Both defendants appealed.

In Lawrence v. State, 234 Ga. App. 603 (507 SE2d 490) (1998), we reversed the judgment against Renee Lawrence, holding the court failed to inform her, personally and on the record, that she could withdraw her guilty plea as a matter of right. The current appeal brought by Irving Lawrence asserts the same fatal error. The court did not inform Irving Lawrence of this right either. Thus, for the reasons set forth in Lawrence, we find the court erred in denying Irving Lawrence’s motion to withdraw his guilty plea. This decision moots the other enumerations of error raised by Irving Lawrence.

Decided October 27, 1998.

James S. Lewis, for appellant.

Cheryl F. Custer, District Attorney, Samuel W. Lengen, Assistant District Attorney, Thurbert E. Baker, Attorney General, Elizabeth D. Redisch, Assistant Attorney General, for appellee.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.


author: Judge Harold R. Banke.

text:
    A98A1567.
    DAVIS v. THE STATE.
    (507 SE2d 827)
   Judge Harold R. Banke.

Chauncy Dejuan Davis was convicted of fleeing or attempting to elude a police officer. He enumerates eight errors on appeal.

During roll call, the arresting officer was directed to be on the lookout for a male on a red Japanese style motorcycle with a black helmet who had committed three armed robberies in the previous week. After observing Davis, clad in a black helmet, turn his red Japanese style motorcycle onto a local interstate, the officer activated his emergency equipment and stopped him. The officer checked the motorcycle tag and prepared to exit his patrol car when Davis sped away. After a chase involving more cars and a helicopter, Davis was observed entering an apartment building with his motorcycle.

When knocking on the door proved futile, the officers obtained a search warrant, entered the apartment, found the motorcycle and helmet and arrested Davis. A search revealed a number of credit and identification cards in various names and approximately $8,000.

Davis was subsequently charged with 16 counts of financial transaction card theft and attempting to elude. After a suppression hearing, the case proceeded to trial on stipulated facts which the trial court determined were sufficient to support the attempting to elude charge. The theft charges were disposed of with a nolle prosequi order. Held:

1. In his first two enumerations, Davis argues that the evidence of attempting to elude was insufficient to support his conviction because the officer lacked articulable suspicion to stop him. We disagree.

OCGA § 40-6-395 (a) prohibits drivers from -willfully failing or refusing to bring their vehicles to a stop or fleeing or attempting to elude a uniformed police officer in a marked car after a visual or audible signal to bring their vehicle to a stop. OCGA § 40-6-395 (a). The evidence shows that the arresting officer was uniformed and driving a marked patrol car when he activated his emergency lights and pulled Davis over. Id. The officer testified that Davis pulled over and waited until the license check had been completed before fleeing. This evidence, viewed in the light most favorable to the verdict, is sufficient to satisfy the requisites of OCGA § 40-6-395 (a). Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979); Finlon v. State, 228 Ga. App. 213, 214 (2) (491 SE2d 458) (1997).

Decided October 6, 1998

Reconsideration denied October 28, 1998

Herbert Shafer, for appellant.

Inasmuch as OCGA § 40-6-395 (a) does not require a lawful stop, we need not reach Davis’ argument under Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968). Compare OCGA § 16-10-24 (a). Assuming, arguendo, that the stop lacked articulable suspicion, Davis’ remedy was a. motion to suppress the fruit of the illegal stop (here, a filing rendered nugatory once the theft charges were dropped). A Terry violation does not provide carte blanche to violate OCGA § 40-6-395 (a).

2. In three enumerations, Davis challenges the trial court’s denial of his motion to suppress, arguing that the search warrant was infirm. A successful appeal requires a showing of both harm and error. Carter v. State, 231 Ga. App. 42, 43 (4) (497 SE2d 812) (1998). The dismissal of the theft charges forecloses any showing of harm in the admission of evidence supporting them. See Edwards v. State, 176 Ga. App. 369, 371 (337 SE2d 27) (1985).

3. Davis claims the trial court erred by failing to order the State to disgorge the property it seized. We are precluded from resolving this issue because the record is insufficiently developed. See N & N, Inc. v. Veline, 253 Ga. 51, 53 (3) (315 SE2d 908) (1984). On remand, the following facts must be established: (1) the specific property sought to be returned; (2) whether the property is necessary to a pending prosecution; and (3) whether Davis possesses an interest in the property, inasmuch as the apartment belonged to his former girl friend and co-defendant, who was being prosecuted on the theft charges. Should it be established that the State is arbitrarily retaining Davis’ property, the trial court is directed to order its release.

Judgment affirmed. Case remanded with direction.

Johnson, P. J., and Smith, J., concur.

J. Tom Morgan, District Attorney, Keith E. Adams, Maria Murder-Ashley, Assistant District Attorneys, for appellee.


text:
    A98A2260.
    COX v. PIC-N-SAVE B.F.L. CORPORATION.
    (507 SE2d 849)
   Judge Harold R. Banke.

We granted the discretionary appeal in this workers’ compensation case to determine whether the superior court exceeded the scope of its review by substituting its own factual findings for those made by the State Board.

Emory Cox was a long-term employee of Pic-N-Save who was awarded temporary total disability benefits in 1992 based on a 1989 bilateral carpal tunnel injury. After Pic-N-Save went into bankruptcy, the Georgia Self-Insurers’ Guaranty Trust Fund administered the claim, but it eventually suspended benefits on October 2, 1996, based on Cox having returned to work.

Sometime in about 1985, while he was still working full-time for Pic-N-Save, Cox and his wife set up a take-out barbeque stand as a passive investment. Initially, other family members primarily ran the business. In 1995, Cox opened a second barbeque stand, this time also providing a small dining area for patrons. Business increased, and Cox began spending more time with day-to-day operations of the two stands. A private investigator hired by the Trust Fund saw Cox at the two locations on eight out of twelve surveillances and videotaped him performing various work activities such as cooking meat, putting wood on the fire, making sandwiches, taking orders, doing paperwork, and stocking supplies.

At the hearing, Cox initially denied performing any work activities other than supervising. The ALJ found that Cox’s testimony was contradicted by the private investigator’s findings, but nevertheless concluded that Cox had not worked to any significant degree. The ALJ also found that Cox’s testimony was partially corroborated by his tax records showing a work force other than himself and even by some of the investigator’s observations. Finding that no change in condition for the better had been demonstrated, the ALJ reinstated Cox’s benefits, and the appellate division affirmed that decision. Held:

1. The superior court, however, applied the rule of evidence that a claimant’s impeached testimony must be disregarded entirely unless corroborated by other, unimpeached evidence. OCGA § 24-9-85 (b) generally; Roach v. Carroll, 110 Ga. App. 636, 637 (139 SE2d 523) (1964). Disregarding Cox’s own testimony, the superior court found the evidence developed by the private investigator demanded a conclusion that Cox had returned to full-time work at his own barbeque stands and had experienced a change in condition for the better that authorized suspension of benefits.

Decided October 13, 1998

Reconsideration denied October 28, 1998.

John M. Hatfield, for appellant.

Drew, Eckl & Farnham, John P. Reale, Robert L. Welch, for appellee.

“In reviewing a workers’ compensation award, both this court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division. It is axiomatic that the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this court has any authority to substitute itself as a fact finding body in lieu of the Board.” (Citations and punctuation omitted.) Southwire Co. v. Molden, 223 Ga. App. 389, 390 (477 SE2d 646) (1996).

The evidence in this case could support a finding that Cox had returned to work, but the superior court’s reversal of the opposite finding made by the appellate division and the ALJ on that issue can be upheld only if the superior court was correct in disregarding Cox’s testimony in its entirety. However, as noted above, the ALJ found that Cox’s tax records served to corroborate his testimony concerning who actually worked at the barbeque stands and further found that even some of the investigator’s observations were consistent with Cox’s claim of limited activity with the business. Under these circumstances, the superior court improperly disregarded Cox’s testimony and erred in disturbing the State Board’s determination.

2. In light of this holding, we need not reach Cox’s remaining enumeration of error.

Judgment reversed.

Johnson, P. J, and Smith, J, concur.