author: Andrews, Judge.

text:
    A91A2050.
    A91A2051.
    BAILEY v. THE STATE. FRANKLIN v. THE STATE.
    (416 SE2d 151)
   Andrews, Judge.

Bailey and Franklin appeal their convictions of armed robbery after a joint trial. Their appeals are considered together.

Viewed in favor of the verdict, the evidence was that Bailey was employed by the security company used by United Parcel Service at its central processing facility. One of the guard duties was to escort the employee who walked the day’s receipts from the customer service center to the hub building of the complex. The entire complex was surrounded by an eight-foot barbed wire fence and access was allowed only through two gates guarded around the clock.

Defendants Bailey and Franklin were long time friends of Hall. Prior to the robbery, Hall and others heard Bailey talking about a “sweet lick” at UPS, indicating that all he had to do was find someone to do it. He referred to Franklin as “Wildman” and indicated he would get him to do it.

On Halloween evening, between 5:30 p.m. and 6:00 p.m., Bailey and Franklin drove Franklin’s Escort to Hall’s house and asked if he had a pistol. He did not. Later that evening, Bailey and Franklin returned and Bailey had $200 or more, waving it out the car window. When Hall asked about the money, Bailey responded that he had been “paid in full.” Bailey told him it was a “sweet lick” at UPS and he had been in the car.

Although Bailey had been scheduled to work Halloween, he did not show for work that day or the next. Halloween evening around 8:00 p.m., UPS employee Stanford closed up the customer service area and started walking unescorted to the hub with over $7,000 in cash, in addition to checks, etc. Occasionally, when the guard service was short employees, the UPS employees walked alone. Stanford was approached by an armed robber whose face he was able to see during the transaction. The robber was wearing a jacket with a bright green emblem over a black breastplate. As he approached, the robber cocked the pistol and told Stanford not to look at him. Stanford was told to lie on the ground and throw the bag toward the robber. He sat on the ground and threw the bag. As he heard footsteps leaving, Stanford looked toward the robber who saw him and ordered Stanford to get up and follow him or he would shoot. The robber escorted him toward the customer counter, but when the robber’s attention was diverted, Stanford ran away.

Stanford was shown two photo spreads, the first of which did not include Franklin’s photo. He identified no one until seeing the second spread with Franklin’s photo, which he immediately picked. He also identified Franklin in court as the gunman. During a search of Franklin’s home, a jacket with black breastplate and green markings was found. In the Escort, officers found .25 caliber ammunition.

When his supervisor called about Bailey’s absence, Bailey told him that his brother had been in a wreck Halloween evening and he had taken him to the hospital. Other family members, questioned later by the supervisor and police, were unaware of any such incident.

Hall, Bailey and Franklin went to a nightclub late on Halloween, where Hall saw Bailey and Franklin with approximately $600 cash each. During that evening, Franklin told Bailey he should not have given him any money since he had not done anything.

The next day, Bailey paid $1,399.99 in cash for a used car. When questioned by police, Bailey first denied having gone to the nightclub, then admitted that he had. He also contended that he had found $600 while riding in Franklin’s car and had sold some dope to get the rest of the money for the car he purchased. Franklin claimed he was home with his mother on Halloween and that his probation officer on a prior first offender charge had visited him. It was stipulated that the probation officer, deceased at time of trial, was on annual leave on Halloween, but had visited Franklin on October 30.

Case No. A91A2050

1. Bailey contends that the evidence was legally insufficient to convict under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). He contends that the only evidence of guilt was circumstantial and it did not exclude every other reasonable hypothesis, including defendant’s explanation of his new found wealth, which was that, after having discussed robbing UPS and failing to report to work, he woke up at UPS in Franklin’s car and a large sum of money was there. He took some of it and sold drugs to get the rest.

“ ‘Under (OCGA § 16-2-20 (a)) every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. One is concerned in the commission of a crime where the person either directly commits, intentionally causes another to commit, intentionally aids or abets the commission of, or intentionally advises or otherwise encourages another to commit the crime.’ [Cits.] ‘While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. . . . The evidence, though circumstantial, authorized the verdict. After a review of the entire record, we find that a rational trier of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt.’ (Citations and punctuation omitted.)” Stoe v. State, 187 Ga. App. 171, 173 (3) (369 SE2d 793) (1988). Accord Mays v. State, 198 Ga. App. 402, 404 (3) (401 SE2d 597) (1991).

2. Bailey also enumerates the denial of severance of defendants as error. Prior to trial, Bailey filed no such motion, although one was filed by Franklin. After the jury was empaneled to try the defendants jointly, counsel for Franklin argued the severance motion. The court asked Bailey’s counsel if he wished to join in the motion. He stated that he did, although he presented no argument on it. Pretermitting the question of whether Bailey properly made and preserved a motion to sever, the denial of the motion was not error. OCGA § 17-8-4 provides that in non-capital felonies, “defendants may be tried jointly or separately in the discretion of the trial court.”

In order to obtain a reversal on the issue of failure to sever, a defendant must demonstrate that the number of defendants would create jury confusion; there is danger evidence against one will be considered against the other despite the admonition of the court; and the defenses are antagonistic. Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975); Stevens v. State, 165 Ga. App. 814, 816 (2) (302 SE2d 724) (1983).

No such showing having been made, denial of the motion was not error. Sims v. State, 195 Ga. App. 631 (1) (394 SE2d 422) (1990); Stoe, supra at 174 (5).

Case No. A91A2051

3. Franklin’s first enumeration claims error in the trial court’s refusal to grant a mistrial “when the prosecutor referred to redacted portions of the codefendant’s statement which references inferred [Franklin’s] guilt, in violation of Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968).”

Franklin’s contention is not that the statement of Bailey was not appropriately redacted to remove all references to him before it was read to the jury in order to protect his constitutional rights, Mays v. State, 198 Ga. App. 402, 403 (2) (401 SE2d 597) (1991), but that the redirect examination by the prosecutor of the investigating officer somehow improperly inferred to the jury his identity as the redacted individual. The cross-examination of the officer by Franklin and Bailey focused on the fact that there originally were two other security employees who were absent the night of the robbery who were suspected by the police but not, according to the questioning, appropriately investigated. In response, the following redirect examination was conducted by the State:

“Q Explain your conduct, Officer. Tell the . . . jury whether or not Mr. Bailey . . . ever indicated to you that he had knowledge about the UPS robbery, himself. That he knew about it.

“A He did indicate that he knew about it, yes —

“Q He —

“A — sir.

“Q — knew who did it. Isn’t that correct?

“A That’s correct.

“Q All right. He knew details about it, didn’t he?

“A Yes, details.

“Q ... Knowing all of that, that this man , . . had given out the story before to other people . . . knew about the actual details of the actual robbery, did you feel it was important, . . . to go find out if . . . [Bailey] was down at Grady at 5:00 o’clock?

“A No, I didn’t.

“Q He pointed the finger at somebody, did he not?

“A He did.

“Q He told you he got the money from that other person, didn’t he?

“A He did.

“Q All right. He benefitted from this robbery, did he not, Officer, in his own words?

“A Yes, he did.

“Q All right, sir.”

At this point, Franklin made his motion for mistrial on the basis that “the State has directly alluded to the redacted portions in the statement by asking the officer . . . did Mr. Bailey say who did it. We all know who he was talking about. That’s improper.”

Pretermitting the question of whether Franklin’s motion was untimely, the questions and answers above, standing alone, do not clearly inculpate Franklin, as is required to show reversible error. Owens v. State, 193 Ga. App. 661, 662 (3) (388 SE2d 712) (1989); compare Lawrence v. State, 257 Ga. 423, 425 (3) (360 SE2d 716) (1987). It is only by tying together the evidence of Franklin and Bailey’s presence together immediately before and after the robbery, as well as the identification of Franklin by the victim, the clothing found in Franklin’s residence, and other evidence that the inference is drawn. There was no error in denial of the motion for mistrial.

4. Franklin also enumerates the denial of his motion for mistrial as error. As reflected above, the fact that Franklin was on probation was put before the jury on the first day of trial by the stipulation concerning the date of his probation officer’s visit to his home. During a conference with Franklin the next morning, his counsel was considering putting into evidence the first offender sentence for burglary which Franklin was serving to explain the probation stipulation. He inadvertently left in the jury room his copy of the book-in card and documentation of the plea. Having advised the court of this fact, Franklin requested that the jury be instructed concerning this matter. The juror who found the documents was questioned, stating that the documents revealed nothing of which the jury was not already aware and that there had been no discussion of the matter. That juror was excused and Franklin withdrew his request for mistrial, instead requesting that a jury instruction, prepared by him, be read to the jury concerning the first offender plea and sentence. Although the court expressed reluctance concerning the charge and the State objected to its being given, at Franklin’s insistence, it was read to the jury. Portions of the charge were that “Franklin has entered a plea, of guilty, under the terms of the First Offender’s Act, to the offense of burglary, previously.” The court went on to charge that the plea could not be considered for impeachment purposes and “[t]he issue is solely in the case to explain other witnesses’ testimony which you’ve already received. And that testimony, of course, was that the defendant, Mr. Franklin, was on probation.”

After completion of the State’s case and presentation of defense witnesses, representing 156 pages in the transcript, the court received a note from a juror reading: “Has Mr. Franklin pleaded guilty or not? Why is Franklin’s lawyer still pleading his case?” At the request of Franklin, the juror was individually called in and questioned. The court first advised him that Franklin had not pleaded guilty to the robbery charge and asked why he thought he had. The juror responded that “[w]ell, somebody else mentioned it, too; earlier in the case I thought that you said that his lawyer had entered a. . . . And we just all kinda had a big question mark; I thought earlier that that’s what you did say.”

Decided March 2, 1992.

John H. Tarpley, for appellant (case no. A91A2050).

McGuire, Cook & Martin, John J. Martin, Jr., for appellant (case no. A91A2051).

Robert E. Wilson, District Attorney, Barbara B. Conroy, Nelly F. Withers, J. Tom Morgan III, Robert E. Statham III, Assistant District Attorneys, for appellee.

The court then brought the jurors in and instructed them that no plea had been entered to the charge. They were asked if any question remained in their mind as to what was being tried and no affirmative answer was received and they were sent out of the courtroom. At this point, Franklin moved for a mistrial on the basis that it was unclear what was going on in the jury room, they were obviously discussing the case and had decided Franklin was guilty. The court brought back the jurors and asked them if they had been discussing the facts, evidence or the law of the case and if they had formed any opinion one way or the other. The jurors indicated that they had not and the motion for mistrial was denied, the court finding that the confusion was merely over the first offender stipulation. The error argued during the hearing on the motion for new trial was that “the jury was confused from the point, in time, that the stipulation was read into the record . . . throughout the rest of the course of the trial until that note came out from that particular juror. ...”

It is apparent that any confusion among the jurors was created by the giving of the charge specifically requested by and prepared by counsel for Franklin. This court will not allow a defendant to complain of self-induced error. Edwards v. State, 235 Ga. 603, 604 (2) (221 SE2d 28) (1975); Jones v. State, 198 Ga. App. 881 (403 SE2d 867) (1991).

To the extent that juror misconduct was argued below, we note that the juror was attempting to clear up any misconception created by defendant prior to the start of deliberations, which does not amount to misconduct meriting a new trial. Compare Lockridge v. State, 260 Ga. 528, 529 (397 SE2d 695) (1990) and Cleveland v. State, 192 Ga. App. 659, 660 (2) (386 SE2d 169) (1989).

Judgments affirmed.

Sognier, C. J., and McMurray, P. J., concur.

       “Getting a lick” is street slang for obtaining money.


source: Caselaw Access Project

license: Public Domain

text:
    A91A2104.
    MAJORS v. THE STATE.
    (416 SE2d 156)
   Andrews, Judge.

Majors was indicted for armed robbery, aggravated assault and criminal interference with government property. He was tried by a jury, convicted and appeals.

Evidence adduced at trial was that at about 3:00 a.m. on April 23, 1990, police officer Barrett was riding morning watch alone when he observed an Oldsmobile sedan driving very slowly. As he approached the vehicle it picked up speed and began driving in excess of the speed limit. Barrett pulled the car over and it stopped at the right side of the road. Barrett stopped his cruiser behind and to the left of the Oldsmobile. The driver of the Oldsmobile, later identified as co-defendant Lane, got out of the car, walked back to Barrett and showed him his driver’s license and a tag receipt for a car which had been reported stolen. Barrett then followed the driver to the front of the car and noticed that the steering column was broken in a manner consistent with the vehicle being stolen. Barrett took the driver back to the police vehicle, frisked him and placed him in the back seat.

Barrett then walked to the front of the police vehicle so that he could see the license tag number and as he did so Majors got out of the passenger seat, walked to the rear of the Oldsmobile, raised a gun to Barrett’s face and stated: “I have something for you.” Majors forced Barrett to drop to his knees and took Barrett’s gun belt, which contained his gun, police radio and ammunition clips. The other passenger, who was not present for trial, released Lane from the police car and then Barrett’s shirt and bulletproof vest were taken off as Majors continued to hold the gun to Barrett’s head. Majors told Barrett to run, and as he did so, Majors opened fire, firing an estimated 16 rounds and riddling the police vehicle with bullets. Majors and the other men sped off in the car. In the report which was made of the incident, Barrett recalled that Majors was about six feet tall, was dark complected and was wearing a dark starter’s jacket and a cap.

At 4:00 a.m. on the same date, the three men went to the home of a witness, and told him of this incident. At that time, the men had with them a police radio and police vest.

Later that day, Majors was arrested at a hotel. The officers entered the hotel room in which Majors was sleeping and observed a pistol under his pillow. Further investigation revealed that the pistol belonged to Barrett.

On May 14, 1990, Barrett identified Majors during a lineup. According to one of the police officers conducting the lineup, Majors selected the participants in the lineup and then Majors selected his number and, after all numbers were assigned, Barrett entered the room to view the participants.

Majors was sentenced to life for armed robbery, ten years to run consecutively for the aggravated assault and five years to run concurrently for interference with government property. Co-defendant Lane was acquitted.

1. In his first enumeration of error, Majors argues that the trial court abused its discretion by failing to grant his motion for severance.

“OCGA § 17-8-4 provides that when two or more defendants are jointly indicted for a felony less than capital defendants may be tried jointly or separately in the discretion of the trial court. Our Supreme Court has found that the trial judge must exercise his discretion in each particular case, but the burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process. They set forth a three-part standard: (1) Will the number of defendants create confusion of the evidence and law applicable to each individual defendant? (2) Is there a danger that evidence admissible against one defendant will be considered against another despite the admonitory precaution of the court? (3) Are the defenses of the defendants antagonistic to each other or to each other’s rights? We answer each question in the negative. We find no error.” (Punctuation and citations omitted.) Sims v. State, 186 Ga. App. 74 (4) (366 SE2d 406) (1988); see also Sims v. State, 195 Ga. App. 631 (394 SE2d 422) (1990); Martin v. State, 189 Ga. App. 483, 487-488 (3) (376 SE2d 888) (1988); Stephens v. State, 170 Ga. App. 267 (1) (316 SE2d 847) (1984); see Cain v. State, 235 Ga. 128 (218 SE2d 856) (1975). Majors has failed to articulate any specific reason for severance, he has failed to show any actual prejudice or denial of due process which resulted from the failure to sever, and we find no error in the trial court’s denial of the motion to sever.

2. In his second enumeration of error, Majors argues that the aggravated assault conviction should be vacated since that crime merged into the conviction for armed robbery. Majors argues that the act of pointing the gun at Barrett was the basis for both the aggravated assault and the armed robbery charge and that the latter crime therefore merged with the prior.

This enumeration is without merit. The indictment itself charged that the armed robbery was committed when Majors and the two other men “did unlawfully, with the intent to commit theft, take from the person and immediate presence of T. D. Barrett, the following property ... by intimidation and by use of a handgun, the same being an offensive weapon.” With respect to aggravated assault, the indictment charged that the three men “did unlawfully commit an assault upon the person of T. D. Barrett, by pointing a firearm, a deadly weapon, at him and discharging the firearm in his immediate presence, thereby placing him in reasonable apprehension of immediately receiving serious bodily injury.”

“While it is settled that aggravated assault is not included in robbery, armed robbery or attempted armed robbery, as a matter of law, [cits.], it may be included as a matter of fact.” Hambrick v. State, 256 Ga. 148, 150 (344 SE2d 639) (1986). Evidence here established that the armed robbery occurred when Majors held the machine gun to Barrett’s head and took his property; “the shots subsequently fired by appellant at the victim constituted a separate offense.” Johnson v. State, 190 Ga. App. 172, 173 (378 SE2d 700) (1989). Thus, the armed robbery was complete before the assault occurred and the crimes did not merge. See Lambert v. State, 157 Ga. App. 275 (277 SE2d 66) (1981).

3. In Majors’ next enumeration of error, he contends that the trial court erred by refusing to excuse a biased juror for cause. The allegedly biased juror was a journalist who indicated that he had written a story regarding the incident, although he did not recall any details of it. In response to general inquiry, the reporter stated that he could be a fair and impartial juror. In later questioning by the court, the reporter stated that he “hoped” his slight knowledge of the matter would not affect his ability to be impartial. He agreed that he would be willing to listen to the evidence and determine the facts from the evidence presented. He also stated that he had not made a determination regarding the facts as a result of his story investigation and that despite the fact that he had spoken to the police regarding the incident he was not sure he believed their version of events. Defense counsel used a peremptory strike to remove him from the jury and did not exhaust the defense peremptory strikes in selecting the jury.

Pretermitting the question of whether the alleged error here was harmful, we find this enumeration without merit. “In order to disqualify a juror for cause, it must be established that the juror’s opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence. It was not established that [this prospective juror] had such a fixed opinion. This enumeration of error is without merit.” (Citations and quotations omitted.) Pope v. State, 170 Ga. App. 799 (1) (318 SE2d 223) (1984); see also Lee v. State, 258 Ga. 762 (2) (374 SE2d 199) (1988); Wynn v. State, 168 Ga. App. 132 (308 SE2d 392) (1983); Williams v. State, 222 Ga. 208 (4) (149 SE2d 449) (1966).

4. Majors claims that the trial court abused its discretion by failing to allow additional jury strikes for the defense since the two defendants were being tried jointly. We do not agree.

OCGA § 17-8-4 provides: “[i]n the event two or more defendants are tried jointly, the court, upon request of the defendants, acting in its sole discretion, may allow an equal number of additional strikes to the defendants, not to exceed five each, as the court shall deem necessary, to the ends that justice may prevail.” “Nothing in the record indicates the denial of this motion was an abuse of the court’s ‘sole discretion.’ ” Merrill v. State, 130 Ga. App. 745, 750 (3) (b) (204 SE2d 632) (1974); see also Ramsey v. State, 165 Ga. App. 854, 855 (303 SE2d 32) (1983).

5. Majors argues that the trial court committed reversible error by denying appellant’s motion to suppress the pretrial identification of him which he claims resulted from an impermissibly suggestive lineup. He claims that an officer loudly yelled the number which Majors was wearing, that Majors was the only participant wearing a starter jacket such as the one the perpetrator allegedly wore and that Majors was unrepresented by counsel at the lineup.

We find this enumeration without merit. “[I]n a motion to suppress, the judge is the trier of fact. Credibility and weight, and resolution of conflicts or inconsistencies are matters to be determined by the judge in a motion to suppress. In the absence of evidence of record demanding a finding contrary to the judge’s determination, we will not reverse the ruling denying the suppression. The evidence was sufficient to show that this line-up was not impermissibly suggestive.” (Punctuation and citations omitted.) Woods v. State, 165 Ga. App. 39, 40 (1) (299 SE2d 97) (1983).

There was testimony from Officer Barrett and from other witnesses that the lineup preparation was not audible nor visible to Barrett prior to Barrett’s entry into the room. Similarly, we find nothing improper about Major’s clothing. Furthermore, nothing in Major’s vaguely articulated allegations regarding the absence of his attorney indicates that the lineup was improper in any sense. Although Barrett expressed slight hesitation initially regarding his identification, evidence was that he had ample time to observe Majors at the time of the incident and that his vehicle’s headlights provided light for Barrett to see Majors.

“There is nothing in the transcript to indicate that the lineup was impermissibly suggestive, or that there was a likelihood of misidentification. As the in-court identification was shown to be independent of the lineup identification, it was not error to allow the in-court identification.” (Citations omitted.) House v. State, 170 Ga. App. 88, 89 (316 SE2d 483) (1984).

6. In his sixth enumeration, Majors contends that the trial court erred by denying his motion to suppress the pistol found in the hotel room because the officers had an arrest warrant for Majors and not a search warrant for the room. This enumeration is without merit, since there was evidence that when the police officers entered the hotel room, they saw the pistol butt protruding from under the pillow on which Majors was lying, clearly within arm’s reach. See OCGA § 17-5-1; Banks v. State, 246 Ga. 178 (2) (269 SE2d 450) (1980).

Decided March 2, 1992.

Giddens, Davidson, Mitchell & Eaton, Earl A. Davidson, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Henry M. Newkirk, Rebecca A. Keel, Assistant District Attorneys, for appellee.

7. Finally, Majors claims that the trial court erred in denying his motion for a mistrial based on the trial court’s failure to strike his alias from the indictment, claiming that the alias served no useful purpose and operated to prejudice the accused. “Where the accused is known by different names . . . it is lawful for the indictment to identify the accused by all such names as alias dicta.” (Punctuation and citations omitted.) Hughes v. State, 161 Ga. App. 824 (1) (288 SE2d 916) (1982).

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


author: Sognier, Chief Judge.

text:
    A91A1877.
    HAYES v. THE STATE.
    (416 SE2d 347)
   Sognier, Chief Judge.

Bobby Gene Hayes was convicted of distributing cocaine and using a communications facility in the commission of a felony (OCGA § 16-13-32.3), and he appeals.

Construed to support the jury’s verdict, the evidence adduced at trial showed that Captain James Thomas Wheeler, head of the Special Investigations Division of the Douglas County Sheriff’s Department, was working with a confidential informant, who made arrangements with appellant over the telephone to purchase one-and-one-half ounces of cocaine. Appellant arranged to meet the informant 30 minutes later in a restaurant parking lot. At the appointed time Wheeler, who was wearing a body microphone, and the informant drove to the designated parking lot in the informant’s car. Present in the area, in two other vehicles, were Sheriff Lee and two other officers, who were receiving the transmissions from Wheeler’s transmitter. Appellant arrived shortly in a pickup truck driven and owned by Russell Rhodes.

Appellant left the truck and approached the informant’s car. After the informant introduced Wheeler as a friend and appellant’s customer, appellant said “I don’t have but one; I had to make a stop on the way here.” Appellant then handed Wheeler a plastic bag containing white powder later identified as cocaine, and its weight was discussed, with appellant insisting, after Wheeler expressed doubt, that it contained a full ounce. Wheeler gave appellant the cash he had brought and gave a signal to the listening officers to come forward. As the officers approached to arrest Rhodes and appellant, appellant threw the money into the informant’s car and attempted to flee. He was stopped and both he and Rhodes were arrested.

Appellant testified at trial that he had come to the parking lot after the telephone conversation with the informant, whom he admitted he knew, to buy tires he suspected were stolen, but stated that he knew nothing about cocaine.

1. We find the evidence adduced at trial sufficient to have authorized the jury to convict appellant of the crimes with which he was charged under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Cassie v. State, 192 Ga. App. 484-485 (385 SE2d 129) (1989) (using communications facility in commission of felony); Jones v. State, 188 Ga. App. 398 (373 SE2d 86) (1988) (distributing cocaine).

2. The record does not support appellant’s contention that the trial court violated his constitutional rights by refusing his request to proceed pro se. A defendant has such a right provided the waiver of counsel is made knowingly and voluntarily, see Faretta v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975), and it is impermissible to force counsel upon an accused. Id. at 832-834; see Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981). However, to constitute reversible error, the trial court’s denial of an accused’s request for self-representation must come after the defendant has made an “unequivocal assertion of the right to represent [him]self.” Thaxton v. State, 260 Ga. 141, 142 (2) (390 SE2d 841) (1990). In this case, although appellant announced after the jury was empaneled that he had “dismissed” his attorney and had no confidence in him, he also admitted that “I’m not qualified to defend myself, Your Honor. ... I do want an attorney, but I’d like to have one that I have confidence in.” It is thus evident appellant requested different counsel rather than unequivocally asserting his desire to represent himself. See Lynott v. State, 198 Ga. App. 688, 689 (2) (402 SE2d 747) (1991).

3. Appellant maintains, citing Giglio v. United States, 405 U. S. 150 (92 SC 763, 31 LE2d 104) (1972), that it was reversible error for the trial court to refuse to compel the prosecution to reveal any “deal” it had with the confidential informant. We do not agree. Giglio applies only to a deal made with a prosecution witness where the credibility of that witness is in issue. Id. at 154-155. In the case sub judice, the confidential informant was not called by the State as a witness. Moreover, appellant was permitted to cross-examine Wheeler regarding the “problems” the informant had with violating his probation and any “deal” the police may have had with the informant. Accordingly, we find no error.

4. Appellant asserts error in the trial court’s ruling allowing appellant’s custodial statements to be introduced into evidence. At appellant’s request, the trial court conducted a hearing outside the presence of the jury pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC. 1774, 12 LE2d 908) (1964), to determine the voluntariness of the statements. Appellant denied making the statements and testified that he was not advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), and had told Sheriff Lee that he wanted an attorney when Lee was transporting him to the jail. Wheeler testified that appellant made the custodial statements after the sheriff advised him of his Miranda rights; that appellant had not asked for counsel or invoked his right to remain silent; and that appellant was neither threatened nor promised anything. We note as well that Lee testified later in appellant’s trial that he had transported appellant’s co-defendant, Rhodes, and not appellant, to the jail.

The trial court found that appellant made the statements, that he was properly warned of his constitutional rights, and that the statements were freely, voluntarily, and knowingly made. “The findings of a trial court as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal unless clearly erroneous. [Cit.]” Robinson v. State, 194 Ga. App. 432, 433 (2) (390 SE2d 652) (1990). The evidence bearing on the issue was in total conflict, and it is apparent that the trial court simply believed the State’s witnesses rather than appellant. We cannot say this was clearly erroneous. See id.

5. Appellant finally contends the trial judge’s charge on intent was unconstitutionally burden-shifting, in that he instructed the jury that it could infer intent “from proven circumstances or by acts and conduct” of appellant but did not define the term “infer,” and left the decision whether to make any inference in the discretion of the jury. We find no error. It is not error for a trial court to fail to define terms in common usage. Garner v. State, 182 Ga. App. 251, 252 (2) (355 SE2d 451) (1987). Moreover, substantially similar charges, lacking definitions of “infer” or “inference,” instructing the jury that any such inferences were in their discretion, were approved by the Supreme Court in Parker v. State, 256 Ga. 363, 365 (1) (349 SE2d 379) (1986) and Dill v. State, 254 Ga. 17-18 (1) (325 SE2d 765) (1985).

Decided February 19, 1992

Reconsideration denied March 3, 1992

Alden W. Snead, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       Rhodes was convicted of selling cocaine, and his conviction was affirmed on appeal. Rhodes v. State, 200 Ga. App. 193 (407 SE2d 442) (1991).

       Although this testimony was given later in the trial, and not at the Jackson-Denno hearing, this court may look to all the evidence contained in the record when determining the voluntariness of a statement. Stapleton v. State, 235 Ga. 513, 516 (1) (220 SE2d 269) (1975).


text:
    A91A2057.
    DAWSON v. THE STATE.
    (416 SE2d 125)
   Sognier, Chief Judge.

Carlos Dawson was convicted of rape and kidnapping by a Tift County jury. He appeals from the judgment and sentence entered thereon.

1. Appellant first contends the trial court erred by denying his motion for mistrial and admitting into evidence a custodial statement not furnished to him as required by OCGA § 17-7-210. The State did provide appellant with a written summary of his oral statement given to police after his arrest. At trial, Bobby Brannon, the officer who questioned appellant, testified that appellant also had told him he did not know the victim. This particular statement was not included in the written summary the State furnished to appellant.

OCGA § 17-7-210 (d) provides that when a defendant gives an oral statement to police, “no relevant and material (incriminating or inculpatory) portion of the statement . . . may be used against the defendant unless it has been previously furnished to the defendant [pursuant to a timely written request].” Appellant maintains the statement at issue was relevant and incriminating because at trial his defense was that the victim consented to the sexual encounter and had had sex with him on a prior occasion. The case he cites, Ludy v. State, 177 Ga. App. 767 (1) (341 SE2d 224) (1986), in which this court reversed a conviction because a statement not included in the summary prepared by the State was admitted into evidence, provides some support for his argument. In Ludy, the defendant’s undisclosed statement — his declaration to police that he did not know the victims — contradicted one victim’s trial testimony that the defendant had worked for her. However, the Supreme Court held in Ledesma v. State, 251 Ga. 487, 489 (5) (306 SE2d 629) (1983) that reversal is not required when the State fails to disclose a defendant’s statement which on its face is not directly incriminating or inculpatory but becomes so only as a result of a defense theory developed at trial. In other words, if the statement is not per se inculpatory or incriminating, the failure of the State to divulge the statement to defendant prior to trial does not constitute reversible error. See id.; see also Johnson v. State, 191 Ga. App. 845-846 (1) (383 SE2d 346) (1989).

Our ruling in this case is controlled by the rationale applied by the Supreme Court in Ledesma. The statement at issue did not appear inculpatory on its face and became so only because appellant asserted a defense of consent at trial. This case is distinguishable from Ludy because in that case the withheld statement contradicted the testimony of one of the State’s witnesses, thus giving rise to a presumption that the State knew or should have known the statement was incriminating at the time it prepared the summary. Here, however, during his interrogation by police appellant denied being present in the vicinity of the crime or knowing the victim, but testified differently at trial. Consequently, the State could not have anticipated the possibly incriminating effect of the statement at issue at the time it furnished the summary. Accordingly, we find no reversible error.

2. Appellant contends in his remaining enumeration that the trial court erred by sentencing him for both offenses because the kidnapping charge merged into the rape as a matter of fact. The victim testified that as she was jogging along a path near a school, appellant jumped out in front of her and forced her into a pecan grove, telling her he would kill her if she did not cooperate. He then removed her clothing, attempted to sodomize her, and raped her.

‘In determining whether a crime is established by proof of the same or less than all the facts required to establish the commission of another crime within the meaning of OCGA § 16-1-6, we look to the actual evidence introduced at trial. If the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under OCGA § 16-1-6.’ . . . [Cit.]” Turner v. State, 194 Ga. App. 878, 880 (3) (392 SE2d 256) (1990). Here, although the two charged crimes occurred sequentially, they constituted separate offenses because each was established by proof of different facts. See Strozier v. State, 171 Ga. App. 703, 706 (4) (320 SE2d 764) (1984). The offense of kidnapping was complete when appellant forced the victim into the pecan grove and held her against her will. See OCGA § 16-5-40 (a); see also Strozier, supra at 705 (4). That act was complete before he forced her to have intercourse against her will. See OCGA § 16-6-1 (a). Since neither crime was included in the other as a matter of fact, the court did not err by sentencing appellant for both offenses. Turner, supra; Strozier, supra at 706 (4).

Decided February 18, 1992

Reconsideration denied March 3, 1992

Timothy L. Eidson, L. Clark Landrum, for appellant.

David E. Perry, District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A2185.
    DEESE et al. v. CARROLL CITY COUNTY HOSPITAL et al.
    (416 SE2d 127)
   Birdsong, Presiding Judge.

This is an appeal of the superior court’s order denying appellant’s motion for new trial. Appellant Magdalene Deese filed suit against appellee Carroll City County Hospital d/b/a Tanner Medical Center (the hospital) and nurse Elsie Addison alleging negligence in the site selection and administration of an intravenous device; appellant Dewey Deese filed suit for loss of consortium. The suits were consolidated for trial, and a jury rendered a verdict in favor of both defendants from which appellants/plaintiffs have appealed. Held:

1. Appellants assert the trial court erred in giving defendant’s charge no. 7, which charged the jury as follows: “A hospital acting through its nurses or other employees is not required to exercise or apply the specialized technique or understanding of a skilled physician or surgeon in the care and treatment of a patient.” Appellants argue that this charge is an incorrect statement of law land was not adjusted to the facts of the case.

The charge is not per se incorrect. A hospital “is not required to exercise medical skill.” Hospital Auth. &c. v. Adams, 110 Ga. App. 848, 853 (140 SE2d 139); see also Richmond County &c. Hosp. v. Dickerson, 182 Ga. App. 601, 604 (3) (356 SE2d 548); Moore v. Carrington, 155 Ga. App. 12 (1) (270 SE2d 222); Su v. Perkins, 133 Ga. App. 474, 480-481 (2) (211 SE2d 421) (pain killer injection administered to patient’s buttocks by nurse); Porter v. Patterson, 107 Ga. App. 64, 71-72 (1) (129 SE2d 70). The charge in question stated an abstractly correct principle of law, which on its face was at least marginally adjusted to this case; the charge is not to be deemed erroneous because it failed to embrace instructions regarding some other case theory. Adams, supra at 849 (2) and (3).

We do not find suasive appellants’ argument that the questioned charge misled the jury as to the proper standard to be employed as to nurses. The trial court also instructed the jury as to the standard of care of both a hospital and a nurse. The standard of care attributed to nurses was “that reasonable degree of care and skill ordinarily exercised by members of the nursing profession generally under conditions and similar and surrounding circumstances.” This standard of care is the correct standard to be employed by nurses when giving intravenous injections and shots (OCGA § 51-1-27), and no higher standard is required. “In general, nurses are expected to perform only those tasks for which they are trained or which they are authorized by law to do.” 14A EGL, Hospitals, § 8 (1988 rev.). We know of no law prohibiting nurses from giving such intravenous injections, therefore when such services are performed, the standard of care which should be imposed is the same as in regard to other authorized nursing activities. Thus, the charge as to the standard of nurses was a correct statement of law (OCGA § 51-1-27). As the jury therefore was instructed adequately in this separate charge as to the standard of care required of nurses, we fail to see how the contested charge would have misled the jury as to that standard. Further, no objection or exception was taken to this separate charge regarding the standard of care required of nurses, and appellant’s sole exception taken after the jury was charged was to the giving of defendant’s charge no. 7.

Additionally, the jury was instructed in separate charges as to the standard of care of and the duty owed by a hospital to its patients. Likewise, no exception was taken to these particular charges, and although the charges could have been more finely adjusted, they adequately informed the jury as to the standard of care owed to patients by the hospital. See, e.g., Johnson v. Parnes, 163 Ga. App. 404, 405 (294 SE2d 624); Doctors Hosp. &c. v. Poole, 144 Ga. App. 184 (1) (A) (241 SE2d 2); Clark v. Piedmont Hosp., 117 Ga. App. 875, 877 (3) (162 SE2d 468); Hospital Auth. &c. St. Marys v. Eason, 113 Ga. App. 401, 403-404 (1) (148 SE2d 499); see generally 14A EGL Hospitals, §§ 8-15 (1988 rev.) (a hospital is not an insurer of patient safety and negligence chargeable to the institution must be proven; as a general rule, a private hospital is under a duty to exercise such reasonable care in looking after and protecting patients as the patient’s condition, as known to the hospital through its agents and servants charged with the duty of looking after and supervising the patient may require, and a private non-charitable hospital is liable for the negligence of its nurses, orderlies, and other hospital employees in the performance of acts requiring less than medical skill and judgment); 40 AmJur2d, Hospitals & Asylums, § 26; but compare Adams, supra at 852-853.

Jury instructions must be read and considered as a whole in determining whether a particular charge contains error. Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177). Examining the charges in toto, we find there exists no fair risk the jury was misled by the contested charge. Appellants’ contentions in support of this enumeration of error are without merit.

Decided February 18, 1992

Reconsideration denied March 3, 1992

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

Webb, Carlock, Copeland, Semler & Stair, Patricia M. Anagnostakis, Daniel J. Huff, Allen & Peters, Dennis A. Elisco, for appellees.

2. Appellant asserts the trial court erred in granting the motion in limine so as to preclude admissibility of the evidence of payment of lost wages by appellees to appellant.

OCGA § 24-3-37 pertinently provides that admissions or propositions made with a view to a compromise are not proper evidence.

The record reflects that certain partial payments of medical expenses and lost wages were made and accepted by appellant. Appellant contests that the payments were tendered and accepted with a view toward compromise and asserts the evidence in question merely constituted admissions of liability. In support of this contention, appellant testified, in response to a question as to the purpose of the tendered check, that her disability entitlements had expired, and when the investigator called, appellant told her that she was very upset because they could not have Christmas for the children because her disability check had run out, the investigator made certain calculations taking into account the weeks not covered by prior disability payments and sent appellant a check for that amount.

Evidence of activity constituting a voluntary offer of assistance made on the impulse of benevolence or sympathy should be encouraged and should not be considered as an admission of liability. Rosequist v. Pratt, 201 Ga. App. 45 (410 SE2d 316); compare Utz v. Powell, 160 Ga. App. 888, 890 (2) (288 SE2d 601); Rhodes v. B. C. Moore &c., 153 Ga. App. 106 (264 SE2d 500). We find that the precedent of Rosequist, supra, is controlling in this case.

Admissibility of evidence rests in the sound discretion of the trial court. Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 189 Ga. App. 573, 575 (2) (377 SE2d 15). Based on the posture of the record, we are not satisfied that an abuse of such discretion has been shown. Appellant has failed to establish this enumerated error affirmatively by the record. See Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (386 SE2d 709).

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Cooper, Judge.

text:
    A91A1502.
    BLIGE v. THE STATE.
    (416 SE2d 160)
   Cooper, Judge.

Appellant was convicted by a jury of burglary. On appeal, he enumerates as error the admission of his confession as well as the admission of his invocation of his constitutional right to remain silent.

Viewed in a light favorable to the jury verdict, the evidence adduced at trial reveals that officers with the Savannah Police Department responded to a burglary in progress call. When the officers entered the residence, they found appellant hiding in a hole inside a bathroom closet. A search of appellant yielded a gold bracelet and watch that were found in his left front pocket. The officers also found a stack of electronic equipment on the back porch of the residence, and a window on the rear door of the residence had been removed. Appellant was then arrested and charged with burglary. The items found on appellant as well as the items stacked on the porch were identified at trial as belonging to the resident of the house.

1. Appellant first contends that the trial court erred in admitting his confession. A detective interviewed appellant shortly after his arrest and advised appellant of his Miranda rights. The detective also advised appellant that there were other charges pending against him which were unrelated to the burglary under investigation. Appellant informed the detective that he did not want to make a statement and indicated in writing on a waiver form that he did not understand his rights and that he did not want to make a statement. However, the detective testified that approximately three to five seconds after appellant initialled the waiver form, without any questioning by the detective, appellant admitted committing the burglary at the residence where he had been apprehended. The trial court conducted a Jackson-Denno hearing on the admissibility of appellant’s statement and ruled that appellant’s confession was admissible. The trial court specifically found that after the detective read appellant his rights, no further questioning took place and that the confession was spontaneous on the part of appellant. “ ‘(O)nce an accused in custody invokes the right to counsel, he should not be subject to further interrogation by the authorities until counsel is present, unless the accused himself initiates further communication, exchanges or conversations with the police. (Cit.)’ [Cit.]” Rhames v. State, 193 Ga. App. 199 (1) (387 SE2d 353) (1989). The trial court’s findings were not clearly erroneous, therefore, they will not be disturbed. Id. at 200.

2. In his second enumeration of error, appellant argues that the trial court erred in allowing the detective to testify that appellant invoked his constitutional right to remain silent. The detective testified that after reading appellant his rights, he asked appellant whether he wanted to talk and appellant checked the “No” box on the waiver form. Appellant’s counsel objected. “ ‘Improper reference to a defendant’s silence . . . does not automatically require reversal.’ [Cit.] Here, . . . the information was ‘inadvertently elicited,’ and the determination of whether this was harmful or harmless error must be determined when ‘juxtaposed against the strength of the evidence of [appellant’s] guilt. [Cit.]’ [Cit.]” Glanton v. State, 189 Ga. App. 505, 507 (3) (376 SE2d 386) (1988). Appellant was found inside the burglarized residence with items stolen from the residence in his pockets, and he subsequently confessed committing the burglary. In light of the overwhelming evidence of appellant’s guilt, we find no reversible error in the reference to appellant’s silence.

Decided March 3, 1992.

Calhoun & Associates, Gregory N. Crawford, for appellant.

Spencer Lawton, Jr., District Attorney, Lars T. Granade, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Beasley, Judge. Carley, Presiding Judge,

text:
    A91A1570.
    MURPHY v. THE STATE.
    (416 SE2d 376)
   Beasley, Judge.

Murphy was convicted of burglary, OCGA § 16-7-1, by entering the dwelling house of Randy Harper without authority and with the intent to commit theft. He was also convicted of being a recidivist, OCGA § 17-10-7, in that prior to committing the burglary, Murphy had been convicted of three felonies.

Harper testified that between 2:30 and 3:00 p.m. he heard glass breaking and caught the burglar with his hand through the broken area, breaking into his house through the back door. The burglar’s face was pressed against the glass in the door, and Harper made eye contact with him and deliberately focused upon his facial features so that he could identify him. The burglar fled and drove from the scene in a bright red two-door car which appeared to be a Toyota or Nissan. He was unable to read the marked car tag. The car was never located.

Harper described the burglar to the police as having blond hair, a medium body build, a thin blond mustache, and a height of about six feet.

Two photographic arrays were presented. The first did not include a photograph of appellant, and Harper did not select any as being of the burglar. The second array did include appellant’s photograph, and Harper immediately identified him. A few days later, Harper immediately identified appellant in a lineup. When asked whether there was any doubt in his mind, he said, “No, I’m positive. That’s the man who was trying to come in my house. I’m not going to forget his face.” Trial identification also was positive.

A sheriff’s investigator testified that he questioned appellant concerning the burglary, and appellant had given him several different stories as to his whereabouts at the time of the burglary. At various times, appellant said he was at work, in the county jail, in court concerning a divorce matter, and in another town talking to an attorney. The investigator discovered that appellant was neither at work nor in court at or near the time of the burglary and was in the county jail the previous night.

Appellant’s alibi witness, his girl friend, testified that on the day of the burglary appellant left her house early in the morning to go to court about a divorce. He called her at approximately 2:20 p.m. and told her he was at a friend’s house. She told him to come to her house. He arrived there by 2:30 or 2:35 and remained there until approximately 4:45 p,m.

1. Appellant enumerates error in the refusal to allow him to rehabilitate his witness with a prior consistent statement after her veracity was attacked through evidence of an even earlier inconsistent statement.

As a rebuttal witness, the investigator testified that when he originally asked the girl friend where appellant was on the day of the burglary, she replied that he had been at work all day. Appellant then recalled his witness and sought to introduce a letter from her to defense counsel in which she stated that appellant had been in court on the day of the burglary. The State objected on the ground that the letter had been composed by the witness at the request of defense counsel and was nothing more than a pre-trial statement as to what her testimony would be. The trial court sustained the objection.

Under Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985); Edwards v. State, 255 Ga. 149, 150 (2) (335 SE2d 869) (1985); Lumpkin v. State, 255 Ga. 363, 365 (4) (338 SE2d 431) (1986); and Carr v. State, 183 Ga. App. 36 (4) (357 SE2d 816) (1987), the witness’ prior consistent statement (the letter) was admissible even though that statement was made after she gave the initial statement to police inconsistent with her trial testimony. Although, in cases such as Edwards, the veracity of the witness was placed in issue by a charge that their trial testimony was a recent fabrication, a prior consistent statement, not of recent origin, was admissible to rebut that challenge.

The girl friend’s letter did not rebut the challenge to, or impeachment of, the witness’ veracity to any greater extent than did her trial testimony. Nonetheless, the Supreme Court held in Edwards and Lumpkin that a prior consistent statement is admissible under Cuzzort over the objection that it constitutes impermissible bolstering and in the absence of a charge of recent fabrication, if the witness’ veracity has been placed in issue and the witness is present at trial under oath and subject to cross-examination. This holding as to the prerequisites for admission of prior consistent statements under Cuzzort was followed in Carr, and these conditions are present here. However, under the facts of this case, any error in the trial court’s refusal to admit into evidence the letter written with the trial in mind was harmless.

2. The next assertion of error is the failure of the court to take any remedial action, as required by OCGA § 17-8-75, after the prosecuting attorney referred to facts not in evidence during closing argument.

The prosecuting attorney made the following comment concerning appellant’s claim that he could not be the burglar because the car used by the burglar was different than appellant’s car: “What means of transportation does he have on a regular basis? Why didn’t [defense counsel] ask him that? Is there some reason they don’t want to make mention about his access to rental cars or his access to other people’s cars?” Appellant objected to part of the last rhetorical question on the ground that there was no evidence concerning rental cars. The court did not rule it improper.

“ ‘What the law forbids is the introduction into a case, by way of argument, of facts not in the record and calculated to prejudice the accused.’ [Cit.] ‘While counsel should not be permitted in argument to state facts which are not in evidence, it is permissible to draw deductions from the evidence; and the fact that the deductions may be illogical, unreasonable, or even absurd, is matter for reply by adverse counsel, and not for rebuke by the court.’ [Cit.]” Bradley v. State, 135 Ga. App. 865, 868 (2) (219 SE2d 451) (1975).

It is true that there was no evidence concerning appellant’s access to rental cars. However, the query merely sought to raise possible explanations of the fact that the burglary car was not appellant’s car, other than the conclusion that appellant could not have been the burglar if the car used by the burglar was not appellant’s car. The suggestion that the jury could deduce that defendant was using a car other than his own was a fair comment and not improper. Cf. Shirley v. State, 245 Ga. 616, 617 (1) (266 SE2d 218) (1980).

3. The third asserted error is the validity of the sentence. At trial, the judge pronounced a 14-year sentence for burglary and a consecutive 5-year sentence for recidivism. However, the court entered a single 19-year sentence.

OCGA § 17-10-7 (b) governs because defendant was convicted of his fourth offense. It provides that the sentence must be served in its entirety and not be subject to parole. As construed, the statute requires that the maximum punishment prescribed for the crime be imposed. Hammond v. State, 139 Ga. App. 820 (229 SE2d 685) (1976); see Wallace v. State, 175 Ga. App. 685, 686 (5) (333 SE2d 874) (1985).

Decided March 3, 1992.

Jerry C. Gray, for appellant.

Timothy G. Madison, District Attorney, for appellee.

Although the burglary statute authorizes the court to impose less than the maximum, albeit not less than five years, on a third conviction, OCGA § 16-7-1 (b), a fourth conviction requires the maximum under OCGA § 17-10-7 (b). Appellant cannot complain that he received one year less than the law required. The trial court’s error was a benefit. Cf. Wallace, supra.

4. The final enumerated error is that, given appellant’s alibi testimony and the evidence that his car, a faded orange 1978 Datsun 280Z hatchback, which therefore could not have been the burglary car, the evidence was insufficient to support the verdict under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). There was direct, eyewitness testimony identifying appellant as the burglar. Viewed in a light most favorable to the verdict, the evidence was sufficient to have authorized a rational trier of fact in finding appellant guilty beyond a reasonable doubt.

Judgment affirmed.

Johnson, J., concurs. Carley, P. J., concurs specially.

Carley, Presiding Judge,

concurring specially.

I concur fully in Divisions 2, 3 and 4 and in the judgment. With regard to Division 1, the majority opines that Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985) is authority for the admission of the letter excluded by the trial court. Thus, the implication is that the trial court may have erred, and the majority concludes with the statement that “any error in the trial court’s refusal to admit into evidence the letter written with the trial in mind was harmless.” I believe that under the factual circumstances of this case, Cuzzort is totally inapplicable and that there was no error at all in excluding the proffered self-serving evidence.


author: Carley, Presiding Judge.

text:
    A91A1909.
    JOURDAN v. FIRST NATIONAL INSURANCE COMPANY OF AMERICA.
    (416 SE2d 162)
   Carley, Presiding Judge.

Appellee-plaintiff First National Insurance Company of America brought this declaratory judgment action, seeking a judicial determination that it afforded no liability insurance coverage to Mr. Marshall McClendon for the death of appellant-plaintiff’s husband. The trial court granted summary judgment in favor of appellee and the instant appeal is from that order.

The following facts are undisputed: On December 15, 1989, Mc-Clendon bought a car and, through an independent agent, he applied for insurance coverage. He filled out an application for coverage with appellee and gave the agent $200. The application was then forwarded to appellee and, after review, appellee declined to accept it. On January 22, 1990, appellee sent written notice to McClendon that he would be afforded coverage only until February 3, 1990. McClendon received this notification and also received and cashed a refund check issued to him by the independent agent. On June 1, 1990, Mc-Clendon was involved in a vehicular collision in which appellant’s husband was killed and for which coverage with appellee was claimed.

Appellant urges that a genuine issue of material fact remains as to whether appellee effectively cancelled McClendon’s coverage by giving notification to the Department of Public Safety pursuant to former OCGA § 33-34-11. It is undisputed, however, that McClendon was never issued a formal written policy by appellee. The only coverage that appellee ever afforded to McClendon was pursuant to a binder. “A binder, which may be oral or written, ‘is a contract of insurance in praesenti; temporary in its nature, intended to take the place of an ordinary policy until the same can be issued. It is a short method of issuing a temporary policy for the convenience of all parties, to continue, unless sooner canceled, until the execution of a formal policy. . . .’ [Cits.]” (Emphasis supplied.) Cincinnati Ins. Co. v. Stuart, 139 Ga. App. 80, 81-82 (1) (227 SE2d 771) (1976). “No binder shall be valid beyond the issuance of the policy with respect to which it was given or beyond 90 days from its effective date, whichever period is the shorter. . . .” OCGA § 33-24-33 (b). In the instant case, no formal written policy was ever issued to McClendon and the collision occurred more than 90 days after the date that his temporary policy of insurance with appellee became effective on December 15, 1989. Accordingly, pretermitting whether the coverage was effectively can-celled as of February 3, 1990, “it is apparent that the [temporary] policy had expired by its own terms by the time the [collision] occurred.” Green v. Progressive Ins. Co., 196 Ga. App. 733, 734 (397 SE2d 20) (1990). Accordingly, the trial court correctly granted summary judgment in favor of appellee. Cincinnati Ins. Co. v. Perimeter Tractor &c. Repair, 192 Ga. App. 243, 245 (2) (384 SE2d 449) (1989); Marchel v. Ga. Mut. Ins. Co., 188 Ga. App. 604, 605 (1) (373 SE2d 787) (1988).

Judgment affirmed.

Beasley and Johnson, JJ., concur.

Decided March 3, 1992.

Long & Mullman, Nick Long, Jr., Roy S. Mullman, Steven P. Berne, for appellant.

Bovis, Kyle & Burch, Charles M. Medlin, for appellee.


text:
    A91A1950.
    DAWSON et al. v. DEPARTMENT OF TRANSPORTATION.
    (416 SE2d 163)
   Carley, Presiding Judge.

After appellee-condemnor condemned a portion of a tract pursuant to OCGA § 32-3-1 et seq., appellant-condemnees appealed and the issue of just and adequate compensation was brought to trial before a jury. At trial, condemnor’s expert gave his opinion as to the value of that portion of condemnees’ tract that had been taken and as to the consequential damages to the remainder. At the close of condemnees’ evidence, condemnor moved for a directed verdict in the amounts to which its expert had testified. Condemnor’s motion was granted and condemnees appeal from the judgment that was entered thereon.

1. That portion of condemnees’ tract which was taken had been landscaped with trees and shrubs. At trial, condemnees attempted to introduce evidence as to the cost of replacing those trees and shrubs. However, the superior court excluded this evidence and condemnees enumerate this ruling as error.

This evidence clearly was not admissible to support a separate recovery for the trees and shrubs. Trees and shrubs are not an improvement on the land such that their loss may be the subject of a separate award of compensation. Williams v. Mayor &c. of Carrollton, 195 Ga. App. 590, 591 (2) (394 SE2d 389) (1990); Department of Transp. v. Willis, 165 Ga. App. 271, 272 (2) (299 SE2d 82) (1983); Gaines v. Dept. of Transp., 140 Ga. App. 741, 742 (2) (231 SE2d 829) (1976). “The land and its natural components are one subject matter and what is required is evidence of the fair market value of that one subject matter ([cits.]).” (Emphasis supplied.) Department of Transp. v. Brooks, 153 Ga. App. 386, 391 (5) (265 SE2d 610) (1980). Accordingly, “[t]he existence of the trees [and shrubs] on the land taken was certainly a factor to be considered in determining its value, but the loss of the trees [and shrubs] was not a separate element of damages which the [condemnees] were entitled to recover in addition to recovering the fair market value of the land as enhanced by the trees [and shrubs]. [Cit.]” Department of Transp. v. Willis, supra at 272 (2).

We need not decide whether evidence as to the separate value of the trees and shrubs taken would be admissible, not so as to authorize a separate recovery thereof, but merely as a factor which illustrates the value of the property taken as enhanced thereby. The excluded evidence did not relate to the value of the trees and shrubs that were taken, but to the cost of replacing them. Moreover, condemnees introduced no independent evidence as to the value of that portion of their property which had been taken and stipulated that, if they could not recover for the lost trees and shrubs separately, the testimony given by condemnor’s expert as to the value of the property taken was otherwise dispositive.

Insofar as the consequential damages to condemnees’ remainder is concerned, the evidence was likewise clearly not admissible as relevant to condemnees’ separate recovery. The evidence would be admissible, if at all, merely to illustrate the diminished value of the unlandscaped remainder. Department of Transp. v. Adams, 193 Ga. App. 866, 868 (2) (389 SE2d 343) (1989). However, the record demonstrates that the condemnees introduced no evidence which would authorize a finding that the amount of consequential damages to their remainder was greater than that to which condemnor’s expert had testified. If condemnees offered no independent evidence as to any greater diminution in the value of their unlandscaped remainder, there was nothing beneficial to the condemnees for the excluded evidence to illustrate. It is obviously not reversible error to exclude evidence which might be illustrative of a greater diminution in the market value of an unlandscaped remainder if there is no evidence of a greater diminution in the market value of the remainder to be illustrated thereby.

2. Condemnees enumerate as error the superior court’s grant of condemnor’s motion for directed verdict. However, the record shows that condemnees did not introduce any evidence which would authorize a finding that the value of that part of their tract taken was any greater than the value to which condemnor’s expert had testified and that they stipulated that his testimony in that regard was otherwise dispositive. With regard to consequential damages, it has been previously noted that condemnees introduced no evidence which would authorize a finding in an amount greater than that to which condemnor’s expert had testified. Under these circumstances, the superior court correctly granted condemnor’s motion for directed verdict.

“[T]he condemnor has the burden to prove just and adequate compensation in condemnation cases. [Cits.] This burden never shifts from the condemnor, although once the condemnor has met its burden of proof by establishing a prima facie case, the condemnee must go forward to produce overcoming evidence when he asserts greater value or damage. [Cits.]” West v. Dept. of Transp., 176 Ga. App. 806, 808 (2) (338 SE2d 45) (1985). “If the condemnee contends that the value or the amount of the damage is greater than is shown by the condemnor’s proof and seeks a verdict for some greater amount he must introduce evidence that will itself or together with other evidence in the case support the verdict, else if a verdict is returned for an amount greater than is authorized under the condemnor’s evidence it will fall because unsupported.” Lewis v. State Hwy. Dept., 110 Ga. App. 845 (1a) (140 SE2d 109) (1964). “Where[, as here,] the only evidence introduced in a condemnation case, together with all proper inferences to be drawn therefrom, shows that only one verdict would be authorized, it is not error for the trial judge to direct a verdict for the owner in the amount shown by the evidence. ...” Fulton County v. Bailey, 107 Ga. App. 512 (130 SE2d 800) (1963). See also MARTA v. Martin, 193 Ga. App. 566 (1) (388 SE2d 346) (1989).

Decided March 3, 1992.

Burkett, Wydro & Schneider, Gene Burkett, for appellants.

Michael J. Bowers, Attorney General, Zachary & Segraves, Kenneth L. Levy, Kenneth W. Carpenter, for appellee.

Judgment affirmed.

Beasley and Johnson, JJ., concur.


text:
    A91A2009.
    THE STATE v. ARMSTRONG.
    (416 SE2d 537)
   Cooper, Judge.

The State appeals the trial court’s grant of appellee’s motion to suppress. Specifically, the State contends the court erred in granting the motion on the basis of facts and law not alleged in appellee’s written motion.

Appellee was indicted for possession of cocaine, and in his motion to suppress, appellee questioned the existence of probable cause for the search. Appellee subsequently amended the motion to suppress to allege, in addition, that there was insufficient probable cause for a general search of the premises when there was arguably only probable cause for the search of a certain bedroom. At the suppression hearing, the officer who executed the warrant testified that the warrant listed a Morrow, Georgia address and that at the time of the search, he believed the house was in Morrow but that the actual mailing address was Forest Park, Georgia. The State presented evidence in support of the warrant on the issue of probable cause. When appellee’s counsel cross-examined the officer on the alleged improper address, the State objected on the ground that the issue had not been raised in the motion to suppress; that the affidavit in support of the warrant and the warrant had been given to appellee’s counsel prior to the hearing; that appellee was limited by the allegations in the written motion to suppress; and that appellee was not entitled to orally assert the alleged incorrect address as a basis for his motion at the hearing. The trial court granted the motion, citing State v. Hatch, 160 Ga. App. 384 (287 SE2d 98) (1981), in which this court held that “ ‘(w)here the name of the owner or occupant is not given [in a search warrant], the description of the premises must be exact.’ [Cits.]” Id. at 385. The court then denied the State’s request for additional time to present evidence and legal authority on the issue, the State arguing that it had only prepared to offer proof at the hearing on the written allegation in the motion to suppress and not the oral motion asserted during the hearing. The State also alleges that had it been given the opportunity, evidence would have proven that Morrow was the correct address.

1. “ ‘On motion to suppress evidence, the trial judge sits as the trior of facts, hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. [Cit.]’ [Cits.]” Jamison v. State, 199 Ga. App. 401, 405 (405 SE2d 82) (1991). This court cannot consider the purported evidence cited in the State’s brief supporting the validity of the search warrant which was not introduced in the trial court. However, OCGA § 17-5-30 requires that a motion to suppress be “in writing and state facts showing that the search and seizure were unlawful.” Appellee did not dispute the State’s statement that appellee had ample opportunity to review the warrant in advance of the hearing and assert an incorrect address as a defect in his motion to suppress; certainly appellee would be in the best position to know if the address on the warrant were incorrect, as it was his own address. Because the issue was not raised in the motion to suppress and “the state was not properly placed on notice that this issue would be raised at the hearing on the motion, . . . the objection must be deemed waived. [Cit.]” Sampson v. State, 165 Ga. App. 833 (2a) (303 SE2d 77) (1983); Wilson v. State, 197 Ga. App. 181, 183 (397 SE2d 744) (1990). Accordingly, the trial court erred in granting the motion to suppress.

2. Having determined that the issue was not properly before the trial court, we need not consider the State’s second enumeration of error, that the trial court erred in suppressing the evidence on the basis of the alleged technical irregularity of improper address.

Judgment reversed.

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

Decided March 3, 1992.

Robert E. Keller, District Attorney, Gregory K. Hecht, Assistant District Attorney, for appellant.

Steven E. Lister, for appellee.


text:
    A91A2086.
    AXON v. HUMANA HOSPITAL OF AUGUSTA.
    (416 SE2d 800)
   Carley, Presiding Judge.

Appellant-plaintiff brought this malpractice action against appellee-defendant and the case was brought to trial before a jury. At the close of appellant’s evidence, however, the trial court granted appellee’s motion for a directed verdict. Appellant appeals from the judgment entered by the trial court on its grant of appellee’s motion.

Appellant’s evidence showed the following: In May of 1982, he was admitted to a hospital facility in Savannah for treatment of severe burns. While in the Savannah hospital facility, a right subclavian catheter and a left jugular catheter were inserted into his body. Thereafter, he was transferred to appellee’s hospital facility and underwent surgery. In the operating room, the right subclavian catheter was removed. The evidence does not show whether this catheter was removed by one of appellant’s physicians or by a nurse in the employment of appellee. After surgery, an unidentified nurse in appellee’s employment removed the left jugular catheter pursuant to the orders of appellant’s physician. X-rays taken after both catheters had been removed showed no portion of the catheters remaining in appellant’s body. In June of 1982, appellant was discharged from appellee’s hospital facility. Thereafter, he was admitted as a patient in several other hospital facilities on numerous occasions. However, appellant testified that his subsequent hospitalizations had involved no intravenous catheterization. In 1986, it was discovered that the broken tip of a catheter was lodged in appellant’s heart and he underwent surgery for its removal. It was this discovery and surgery which underlay appellant’s instant malpractice action against appellee.

There is some question whether appellant’s evidence would authorize a finding that the catheter tip that was found in his body in 1986 was attributable to any act or omission which occurred during his 1982 hospitalization at appellee’s facility. The catheters were originally inserted in Savannah, not at appellee’s hospital facility, and the evidence does not negate the possibility that the tip was broken during initial insertion rather than subsequent removal.

In any event, if appellant did prove that the presence of the catheter tip in his body was attributable to some act or omission which occurred during his 1982 hospitalization at appellee’s facility, he failed to prove that that act or omission was attributable to one of appellee’s employees for whom it would be vicariously liable. Under the evidence, it was no less possible that the catheter tip broke during the removal of the right subclavian catheter by appellant’s physicians than that it broke during the removal of the left jugular catheter by appellee’s nurses. There is no evidence that appellee would be vicariously liable for the negligence of appellant’s doctors. “The rule is that for the hospital to be held liable it must be shown that the doctor was an employee of the hospital and not an independent contractor.” Georgia Osteopathic Hosp. v. Hollingsworth, 242 Ga. 522 (250 SE2d 433) (1978). Insofar as the failure to discover the broken catheter tip prior to appellant’s discharge from appellee’s hospital facility is concerned, there is likewise no evidence of any negligence on the part of appellee or its agents in either the taking or the reading of the x-rays wherein no broken catheter tip appeared to be present.

Decided March 3, 1992.

Don Smart, Jóhn G. Hunter, for appellant.

Smith, Gambrell & Russell, David M. Brown, Marianne Maher, for appellee.

Since appellant failed to meet his burden of proof as to negligence for which appellee would be liable, it follows that the trial court correctly granted appellee’s motion for a directed verdict. “From the evidence, it cannot reasonably be determined whether the negligence of appellee or some third party caused the [catheter tip] to [break off and remain in appellant’s body]. ... It follows that the facts and inferences were insufficient for the application of the doctrine of res ipsa loquitur. [Cit.] The trial judge committed no error in directing a verdict for appellee.” Home Ins. Co. v. Law Concrete &c. Co., 137 Ga. App. 284, 285 (223 SE2d 480) (1976). See also Backus v. Ray Jones, Inc., 150 Ga. App. 753 (258 SE2d 693) (1979); Augusta Roofing &c. Works v. Clemmons, 97 Ga. App. 576, 578 (2) (103 SE2d 583) (1958); Advanced Refrigeration v. United Motors Svc., 71 Ga. App. 576, 577 (1) (31 SE2d 605) (1944).

Judgment affirmed.

Beasley and Johnson, JJ., concur.


text:
    A91A2253.
    CONDON v. THE STATE.
    (416 SE2d 802)
   Carley, Presiding Judge.

Appellant pled guilty to charges of possession of cocaine and marijuana. Pursuant to Mims v. State, 201 Ga. App. 277, 278 (1) (410 SE2d 824) (1991), he appeals and enumerates as error the denial of his motion to suppress.

The facts are undisputed. Narcotics officers obtained a warrant to search a residence. Appellant was neither a resident of the premises to be searched nor was he named in the warrant. However, appellant did drive his truck onto the premises while the warrant was being executed. An officer told appellant to step from his truck and, when appellant complied, the officer frisked him for weapons. After completing the frisk, the officer glanced into appellant’s truck and saw, in plain view, a bag of marijuana. Appellant was then arrested and a subsequent search of his truck resulted in the discovery of cocaine.

The marijuana was not discovered as the result of a search of appellant or his truck. Compare State v. Anderson, 195 Ga. App. 793 (395 SE2d 50) (1990); Bundy v. State, 168 Ga. App. 90 (308 SE2d 213) (1983). It was discovered in plain view while the officer and appellant were standing outside the truck. However, appellant urges that the marijuana should nevertheless be suppressed because the officer had secured his vantage point for the purpose of conducting an unauthorized frisk. See State v. Brown, 198 Ga. App. 239 (401 SE2d 295) (1990).

“In the execution of [a] search warrant the officer executing the same may reasonably detain or search any person in the place at the time . . . [t]o protect himself from attack. . . .” OCGA § 17-5-28 (1). Under this Code section, the frisk of an individual who is a visitor on the premises and who is not named in the warrant must be justified by the officer’s reasonable belief that it is necessary. Ybarra v. Illinois, 444 U. S. 85 (100 SC 338, 62 LE2d 238) (1979); Wyatt v. State, 151 Ga. App. 207, 209 (1a) (259 SE2d 199) (1979). It appears that the warrant that was issued in the instant case authorized a search for drugs. It is not unreasonable for officers to anticipate that those who are suspected of involvement in the drug trade might be armed. See Hayes v. State, 202 Ga. App. 204 (414 SE2d 321) (1991) (knowledge of officers that “ ‘firearms are “tools of the (drug) trade” ’ ”). See also State v. Hawkins, 187 Ga. App. 826, 828 (2) (371 SE2d 668) (1988) (applying OCGA § 17-5-28 (1) in the context of execution of a search warrant for drugs). Moreover, appellant arrived on the scene in a truck. See Hayes v. State, supra at 205 (noting that “ ‘investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.’ [Cit.]”). Compare Ybarra v. Illinois, supra. Under these circumstances, the officer was clearly authorized to direct that appellant step from his truck and submit to a frisk for weapons and the motion to suppress was correctly denied as to the marijuana found in plain view. See Delgado v. State, 192 Ga. App. 356 (384 SE2d 680) (1989).

Decided March 3, 1992.

Summer & Summer, Daniel A. Summer, for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

It follows that appellant’s arrest for possession of marijuana was authorized and that the subsequent search of his truck was authorized as incident thereto. State v. Hopkins, 163 Ga. App. 141, 142 (2) (293 SE2d 529) (1982). Accordingly, the motion to suppress was correctly denied as to the cocaine that was found in the search of the truck.

Judgments affirmed.

Beasley, and Johnson, JJ., concur.


author: Judge Arnold Shulman.

text:
    A91A1751.
    GILES v. CITY OF LOCUST GROVE.
    (416 SE2d 758)
   Judge Arnold Shulman.

The appellant was tried and convicted in the Municipal Court of the City of Locust Grove of speeding, DUI and driving without proof of insurance. He immediately filed a notice of appeal to superior court “pursuant to Article IV, Section 41.1 of the Charter of the city of Locust Grove (Ga. L. 1976, pp. 4426, 4451), as amended,” in which he demanded “a de novo proceeding ... as required by said charter.” Within the next 30 days, he also filed a “Reservation of Right to Appeal under OCGA § 40-13-28,” stating: “[I]n the event it should be subsequently determined that he is not entitled to a de novo proceeding under the appellate procedure established in the city charter then, and only in that event, defendant hereby appeals pursuant to OCGA § 40-13-28 to the Superior Court of Henry County. . . .” After the appeal was docketed in the superior court, the appellant filed a “demand for de novo trial by jury” in that court. The superior court denied this demand and found the appellant “guilty as charged” of each of the three offenses. We then granted the appellant’s application for an appeal to this court. See generally OCGA § 5-6-35 (a) (1).

1. The appellant contends that he was entitled to a de novo jury trial in the superior court pursuant to the following language in the above cited section of the city charter: “The right of appeal to the Superior court of Henry County from the [municipal c]ourt shall lie in the same manner and under the same procedure as generally prescribed for appeals . . . from the probate court. ... An appeal to the superior court shall be a de novo proceeding.” Ga. L. 1976, pp. 4426, 4451. We disagree.

The charter confers jurisdiction on the municipal court “to try all offenses within the territorial limits of the city constituting traffic cases which under the laws of Georgia are placed within the jurisdiction of municipal or police courts. . . .” Ga. L. 1976, p. 4448. The municipal courts of this state are generally authorized by OCGA §§ 40-13-21 (a) and 40-13-29 to assert jurisdiction over all misdemeanor traffic cases originating within the corporate limits of the municipality. (But see OCGA § 40-13-23 (a), specifying that municipal courts shall not have the power to dispose of misdemeanor traffic cases “unless the defendant shall first waive in writing a trial by jury.”)

The right of appeal in such cases is governed by OCGA § 40-13-28 (Ga. L. 1986, pp. 982, 991, § 15), which provides, in pertinent part, as follows: “Any defendant convicted under this article shall have the right of appeal to the superior court. The provisions of Code sections 5-3-29 and 5-3-30 shall not apply to appeals under this Code section. Otherwise, the appeal shall be entered as appeals are entered from the probate court to the superior court. . . . The appeal to the superior courts shall not be a de novo investigation before a jury but shall be on the record of the hearing as certified by the judge of that court who presided at the hearing below.” (Emphasis supplied.)

The appeal procedures set forth in OCGA § 40-13-28 clearly take precedence over any conflicting rules of procedure contained in the city charter, both because the Code section is the latest expression of the General Assembly on the subject, see State v. Ramsey, 147 Ga. App. 150, 151-152 (248 SE2d 289) (1978), and also “by reason of the general provision in the Georgia Constitution, and implementing legislation, mandating uniform rules of practice and procedure in each class of courts in the state.” State v. Majia, 254 Ga. 660 (333 SE2d 834) (1985). It follows that the superior court did not err in denying the appellant’s request for a de novo jury trial.

2. The appellant contends that if the statutory appeal procedure does not provide for a trial de novo, then it is unconstitutional. However, there is no indication the appellant advanced any such contention in the superior court. The appellate courts of this state “ ‘ “will not pass upon the constitutionality of a statute unless it clearly appears that the point was properly raised in the trial court and passed on.” [Cit.]’ [Cit.]” Hardison v. Haslam, 250 Ga. 59, 61 (295 SE2d 830) (1982).

3. The appellant complains that the superior court could not have undertaken a review of the evidence in the case because no transcript or summary of the evidence was contained in the record transmitted to it by the municipal court. We agree. However, we conclude that under the Supreme Court’s recent decision in Walton v. State, 261 Ga. 392 (405 SE2d 29) (1991), this establishes no ground for reversal.

In Anderson v. City of Alpharetta, 187 Ga. App. 148, 149 (369 SE2d 521) (1988), this court held that an appeal under § 40-13-28, though not a “de novo investigation,” is “a ‘de. novo proceeding,’ whereby the superior court reviews the certified record below and makes a new determination as to guilt or innocence.” Based on this interpretation of the statute, we subsequently held, in Holloman v. State, 199 Ga. App. 230 (404 SE2d 651) (1991), that a superior court could not presume that a traffic conviction was supported by the evidence based on the absence of a transcript. Accord Walker v. State, 199 Ga. App. 519 (405 SE2d 322) (1991), where, following an earlier remand “for clarification by the superior court as to the basis upon which it made its determination that the evidence was sufficient to support the appellant’s conviction,” we upheld that court’s affirmance of a traffic conviction based on an evidentiary summary certified to it by the probate court.

Subsequent to these decisions, however, the Supreme Court, in Walton v. State, supra, disapproved of this court’s statement in Anderson v. City of Alpharetta, supra, that an appeal to superior court under OCGA § 40-13-28 is a de novo proceeding, holding that the mandate of the superior court in such cases is instead “to review asserted errors of law in the proceedings below under general appellate principles.” 261 Ga. at 394. Shortly after Walton v. State was decided, this court held, in Perry v. City of Hampton, 200 Ga. App. 329 (1) (409 SE2d 92) (1991), that where the proceedings in municipal court had been transcribed but the appellant had failed to request in his notice of appeal to superior court that the transcript be included in the record, the appellant could not challenge the sufficiency of the evidence on appeal. That result was, of course, consistent with the general principle of appellate practice that enumerations of error based on the evidence cannot be considered “ ‘[i]n the absence of a transcript, or a record prepared from recollection or a stipulation of the case pursuant to OCGA § 5-6-41 (g, i) . . .’ ” id., as well as the principle that the burden is on the appellant to show error affirmatively by the record. Moss v. State, 194 Ga. App. 181 (390 SE2d 268) (1990). Based on these same principles, we hold in the present case that the superior court was required to presume, in the absence of a contrary showing, that the evidence introduced in the municipal court supported the appellant’s convictions.

4. The appellant contends that the municipal court lacked jurisdiction to try him due to its failure to secure from him a written waiver of his right to trial by jury in accordance with OCGA § 40-13-23 (a). However, the Georgia Supreme Court has held that this written waiver requirement is itself waived if the defendant proceeds to trial without objecting to being tried without a jury. See Nicholson v. State, 261 Ga. 197 (403 SE2d 42) (1991); See also Dossett v. State, 261 Ga. 362 (404 SE2d 548) (1991); Walton v. State, 261 Ga. 392 (405 SE2d 29) (1991). Although, as the appellant points out, the rationale for the Nicholson decision is directly applicable only to probate courts, this court has extended it “to all courts granted jurisdiction in OCGA § 40-13-21 (b) to try misdemeanor traffic offenses arising under state law when the defendant waives a jury trial.” Kolker v. State, 200 Ga. App. 72, 73, (406 SE2d 514) (1991) (cert. denied, 9-6-91).

Not only does the record in the present case fail to reflect that the appellant interposed any objection in the municipal court to being tried without a jury, it contains a finding by the municipal court judge that “the defendant and his counsel were specifically advised by the court of defendant’s right to trial by jury and the right to have the case transferred to the Superior Court of Henry County and that the defendant, by and through counsel, specifically advised the court that he did not desire to exercise said right.” Under these circumstances, the appellant clearly waived his rights under OCGA § 40-13-23 (a).

5. The appellant contends that the municipal court judge was not qualified to preside over the case because he was not a resident of the judicial circuit in which the court is located. The appellant argues that such a residency requirement exists by virtue of the following language contained in OCGA § 36-32-2 (a): “Notwithstanding any other provision of this chapter or any general or local Act, the governing authority of each municipal corporation within this state having a municipal court, as provided by the Act incorporating the municipal corporation or any amendments thereto, is authorized to appoint a judge of such court who shall be a resident of the same judicial circuit as that in which the court, is located and who shall serve in lieu of the mayor or other members of the governing authority of the municipality.” (Emphasis supplied.)

This statute was originally enacted in 1973 (see Ga. L. 1973, p. 489), one year after the United States Supreme Court held, in Ward v. Monroeville, 409 U. S. 57 (93 SC 80, 34 LE2d 267) (1972), that a mayor or other member of the governing body of a municipality is disqualified on due process grounds from serving as municipal court judge where the municipality derives a substantial portion of its income from the fines, forfeitures, costs, and fees imposed by that court. It is apparent that the purpose of the legislation was to provide for the appointment of replacement judges in those courts where the existing judge was disqualified under the Ward decision from serving, for subsection (b) of the Code section specifies that it “shall not apply to any municipal corporation in which neither the mayor nor another member of the governing authority of the municipal corporation serves as judge of the municipal court.”

Decided February 18, 1992

Reconsideration denied March 4, 1992

Virgil L. Brown & Associates, Bentley C. Adams III, Anne C. Allen, for appellant.

Smith & Welch, Benjamin W. Studdard III, for appellee.

In denying the appellant’s motion for disqualification in the present case, the municipal court judge concluded that OCGA § 36-32-2 (a) was not applicable to him because “[n] either the mayor nor another member of the governing authority of the City of Locust Grove serve[d] as judge of the Municipal Court of Locust Grove.” The correctness of this factual determination is not disputed on appeal. Accordingly, we hold that the appellant’s motion for disqualification was properly denied. See generally Anderson v. State, 197 Ga. App. 54, 55 (397 SE2d 557) (1990).

Judgment affirmed.

Carley P. J., and Beasley, J., concur.