text:
    A98A1649.
    GARMON v. THE STATE.
    (510 SE2d 350)
   Pope, Presiding Judge.

Following a bench trial, the trial court convicted Sammy Garmon of trafficking in methamphetamine. Garmon appeals, challenging the denial of his motion to suppress evidence of the methamphetamine and the sufficiency of the evidence supporting his conviction. We conclude that the court properly denied Garmon’s motion to suppress, that the evidence was sufficient to convict, and we affirm.

1. As grounds for his motion to suppress, Garmon asserted that police obtained evidence of the methamphetamine following an arrest not supported by probable cause. In addressing this assertion, we construe the evidence in the light most favorable to the trial court’s decision. Sawyer v. State, 227 Ga. App. 493, 494 (2) (489 SE2d 518) (1997).

Viewed in this light, the evidence reveals that in July 1995, a Douglas County Jail inmate informed Investigator Mike Howell of the Douglas County Sheriff’s Department that a man called “Speed” had sold methamphetamine to another individual. The informant told Howell he believed “Speed’s” real name was Sammy Garmon and that he drove a black Chevrolet truck. Howell testified that after investigating the information, he also learned that Garmon “may be an acquaintance” of another individual who purportedly was a methamphetamine dealer.

Howell investigated the information and, in August 1995, obtained a photograph of Garmon from police files relating to a prior driving under the influence arrest. In mid-August, Howell and another investigator saw the black Chevrolet truck registered to Garmon outside a pool hall. The investigators entered the pool hall where they observed Garmon conduct what appeared to be a hand-to-hand drug transaction. The investigators did not further explore the apparent transaction, however, and according to Howell his investigation of Garmon ceased a short time later.

In an unrelated investigation into an illegal sports betting operation, Howell obtained a wiretap warrant to monitor phone calls made to the residence of an individual named Michael Wilson. During the wiretap investigation, which began on December 20, 1995, the officers overheard conversations which indicated a person named “Sammy” was participating in illegal gambling and narcotics activity. Howell testified regarding the specifics of several conversations which involved “Sammy’s” drug and gambling activities. Specifically, on one occasion an individual called the house asking if Wilson had any “white stuff,” and Wilson responded that “he would have to wait until Sammy called him back.” During approximately three other phone calls, the speakers stated that Sammy had won or lost a certain amount of money.

On December 29, Howell obtained a search warrant for Wilson’s house to obtain evidence of crimes involving gambling and controlled substances, specifically documents, records, notes, recordings, controlled substances, U. S. currency, and telephone billing records. In the six-page affidavit attached to the warrant, Howell detailed the mechanics of the gambling operation, the details of which he had learned through monitoring phone calls to Wilson’s residence. The affidavit listed several individuals who were involved in the sports betting operation and detailed the volume of activity — 9,000 calls in a two-month period — as well as other signs of gambling activity which Howell had observed. Howell’s affidavit also stated that he believed “controlled substances may be found as well because during monitored conversations Wilson has stated that he enjoys consuming marijuana.” Howell stated that he believed “that such information will be presently located at the above residence because this weekend there are going to be several professional and college football games to be played between now and 1/2/96.” Howell’s affidavit set forth the need for a “no-knock” warrant; he explained that “[i]n a case such as this, documents and records are easily and quickly destroyed by means of fire. Sometimes gambling records are kept on special paper that burns easily, based on what Affiant has been told by other officers experienced in such investigations. Items can be flushed down the toilet.”

On December 30, a couple of days before Garmon’s arrest, the Douglas County Sheriff’s Department set up a surveillance on Michael Wilson’s residence and observed a truck parked in Wilson’s driveway. When officers ran the tag on the truck, they learned it was registered to a man who sold methamphetamine.

The officers’ plan was to execute the search warrant on the evening of January 2, 1996. The raid was planned to coincide with the National Championship Football Game, one of the largest betting games of the year, which was also scheduled for that night. At about 8:15 p.m. on January 2, before the search warrant was executed, the officers were monitoring the wiretap on Wilson’s phone and overheard a conversation between “Sammy” and “Dan” in which the men were talking about gambling and drugs. The officers had previously received information from the IRS that “Sammy” was Sammy Joe Garmon and “Dan” was Dan Boone. According to Howell, in the January 2 phone conversation “Sammy” and “Dan” made a side bet. About ten minutes after hearing that conversation, Howell arrived at Wilson’s residence and set up surveillance on Wilson’s home. Three to five minutes after Howell got to Wilson’s residence, he saw an unidentified man (later identified as Garmon) and woman leave the house and get into a pickup truck.

Howell testified that “[d]ue to the fact that they were in the process of getting everybody together to do the search warrant execution, we were stopping the vehicles that were leaving the house.” Accordingly, Howell instructed another investigator, Deputy Bearden, to follow the man and woman, perform a “traffic stop” on the vehicle, and detain its occupants. Bearden began following the car, but because Bearden was in an undercover car, it was necessary for him to call for a patrol car to actually stop the truck. The truck was stopped approximately two miles from Wilson’s home, and Bearden approached the vehicle. Upon approaching the pickup truck, Bearden noticed that the driver’s “eyes were very glassy, and his speech was slurred.” Bearden did not smell any alcohol and suspected that the driver was under the influence of drugs. Bearden testified, however, that the driver was not speeding or weaving and that he was not investigating the driver for driving under the influence. Bearden asked the driver for a license and insurance card, both of which identified the driver as Sammy Garmon. When Bearden notified Howell that Garmon was the driver, Howell responded that he “had information on [Garmon] that [Garmon] was a meth dealer, and [Bearden] needed to check him pretty close.”

Following Bearden’s conversation with Howell, Bearden asked Garmon if he would give consent to a search of the vehicle. Although Garmon initially said “yes,” he immediately changed his answer to “no.” Bearden then called a canine unit to perform a “free air search around the vehicle.” While they were waiting for the canine unit, Bearden patted down Garmon for safety reasons. During his pat-down, Bearden discovered what appeared to be two gambling sheets in Garmon’s left back pocket, $8,417 in his right front pocket, along with a knife or some knives.

Approximately five minutes later the canine unit arrived, and after walking around the pickup truck, the dog signaled the possible presence of drugs near the driver’s side door. The dog’s handler then opened the passenger side door, and the dog alerted on a tissue box located on the passenger side floorboard. The officers looked in the box and found a rocky, powdery substance that they suspected was a narcotic. Bearden asked Garmon if the substance was methamphetamine, and Garmon responded affirmatively.

Following the discovery of the methamphetamine, the officers placed Garmon and his female passenger, Patricia Garrett, in the back of a patrol car. Upon searching Garrett’s pocketbook, Bearden found a sock containing some loose methamphetamine and syringes.

After being charged with trafficking in methamphetamine, Garmon moved to suppress the evidence obtained following the stop. Here he argues that the court improperly denied the motion to suppress in that: the initial stop by Deputy Bearden was improper and that the officers’ subsequent actions in detaining Garmon and having him exit his vehicle were improper. We find that the initial stop by Deputy Bearden was justified; that the officers’ subsequent actions were also justified; and that the trial court’s denial of the motion to suppress was proper.

“On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous.” (Citations and punctuation omitted.) Fritzius v. State, 225 Ga. App. 642, 644 (484 SE2d 743) (1997).

Although we were unable to locate Georgia cases which involved identical facts, several cases guide our inquiry into the validity of the warrantless search here. Michigan v. Summers, 452 U. S. 692 (101 SC 2587, 69 LE2d 340) (1981), arose after police officers, who were about to execute a search warrant on a house, saw the resident of the house, Summers, leaving the premises. The officers detained Summers during the search and, after finding contraband in the house, arrested him. During a search of Summers’ person, the officers found additional contraband. Summers moved to suppress evidence of the contraband found-on his person, arguing that the detention and search violated his Fourth Amendment rights. Although the trial court agreed and suppressed the evidence, the United States Supreme Court reversed, concluding that the officers were permitted to detain Summers while they searched his home.

In concluding that the detention was justified, the Supreme Court stated that their assessment focused on both the law enforcement interest and the nature of the articulable facts supporting the detention. The court stated that the legitimate law enforcement interest in preventing flight, the interest in minimizing the risk of harm to officers, and the interest in preventing destruction of evidence were among the law enforcement interests at issue. Michigan v. Summers, 452 U. S. 702-703. The Supreme Court then discussed the nature of the articulable and individualized suspicion on which the police base the detention of the occupant of a home subject to a search warrant, stating: “[t]he existence of a search warrant, however, also provides an objective justification for the detention. A judicial officer has determined that police have probable cause to believe that someone in the home is committing a crime. . . . The connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant.” (Emphasis supplied.) Id. at 703-704.

In Fritzius v. State, 225 Ga. App. 642, the validity of a warrant-less search in light of a warrant which had been issued for a home was also at issue. In Fritzius, a police narcotics unit was preparing to execute a search warrant for drug violations on a mobile home occupied by a man named Henry Fallaw. As the warrant was about to be executed, an officer observed two men leave the home, enter a vehicle and drive away. An officer was instructed to stop the vehicle and “find out if Fallaw, who was named in the warrant, was in the car.” Id. at 644. Accordingly, the officer stopped the vehicle approximately two miles away from the home and subsequently discovered contraband in the car. Fallaw was the driver of the car. Fritzius, the passenger and the vehicle owner, moved to suppress evidence of the contraband on the ground that it was the fruit of an unlawful stop. The trial court denied Fritzius’ motion to suppress the evidence, and this Court affirmed.

Citing Michigan v. Summers, 452 U. S. 692, the Fritzius court stated: “[w]hen a person is leaving a premises which is about to be searched pursuant to a warrant, a brief, momentary detention by law enforcement personnel is permitted when supported by articulable suspicion or probable cause.” Fritzius v. State, 225 Ga. App. at 644. The court analyzed Summers, applied it to the facts of the case, and stated: “[i]n determining whether a search or seizure is constitutionally prohibited, the ultimate test for the validity of the police’s conduct is whether, under the circumstances then confronting the police, their conduct was reasonable within the meaning of the Fourth Amendment. It would appear reasonable within the meaning of the Fourth and Fourteenth Amendments for a police officer, knowing that certain persons and premises were the subject of the immediate execution of a search warrant, to detain temporarily a vehicle containing occupants who had just departed the premises to be searched in order to identify the occupants and to see if one of them was a person named in the warrant. Under such circumstances, the detention would be minimally intrusive and neither an arbitrary nor capricious exercise of police power.” (Citations, punctuation and emphasis omitted.) Id. at 646.

Also relevant to our inquiry is Terry v. Ohio, 392 U. S. 1, 23 (88 SC 1868, 20 LE2d 889) (1968), which focuses on the “articulable suspicion” element of the inquiry which was discussed in Michigan v. Summers. In Terry, the court stated: “[m]omentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.” (Citations and punctuation omitted.) Fritzius v. State, 225 Ga. App. at 643.

In the instant case, it was reasonable within the meaning of the Fourth and Fourteenth Amendments for the officers, knowing that Wilson’s premises were to be the subject of the immediate execution of a search warrant, to detain temporarily the vehicle containing Garmon in order to identify the occupants and see if one of them was the person they had just overheard discussing gambling and drugs on the phone. In light of the fact that the warrant was issued for January 2 — specifically because of the volume of gambling that would occur on that day, it was reasonable to follow the car from the house. Under such circumstances, the detention was minimally intrusive and was neither an arbitrary nor capricious exercise of police power. See Bales v. State, 216 Ga. App. 856 (456 SE2d 112) (1995); Setser v. State, 209 Ga. App. 57, 58 (1) (432 SE2d 652) (1993); compare State v. Crank, 212 Ga. App. 246, 249 (441 SE2d 531) (1994). Both the law enforcement interest in preventing the destruction of evidence and the nature of the articulable facts supporting the detention establish that the stop was proper.

The officers’ actions subsequent to the stop were also justified. Officer Bearden’s pat-down of Garmon was reasonable and justified under the circumstances. See generally Davis v. State, 232 Ga. App. 450, 451 (501 SE2d 241) (1998). Additionally, the “free air search” was supported by articulable suspicion: Garmon had just left Wilson’s residence, and once Bearden ascertained Garmon’s identity, the earlier investigation of Garmon’s involvement in methamphetamine gave the officer additional reasonable articulable suspicion. See Pitts v. State, 221 Ga. App. 309, 311 (2) (471 SE2d 270) (1996); Fritzius v. State, 225 Ga. App. at 646 (“the existence of an articulable suspicion can be based on the collective knowledge of law enforcement officials” and “the detaining officer was entitled to rely on the information given him by a fellow officer in the formation of an articulable suspicion”).

2. Garmon also asserts that notwithstanding any error in the trial court’s denial of his motion to suppress, there was insufficient evidence to establish that he possessed the methamphetamine found in his truck. Garmon contends that the evidence showed that his passenger, Patricia Garrett, had equal access to the contraband and that the trial court therefore erred in denying his motion for directed verdict. Again, we disagree.

“ ‘The equal access rule, entitling a defendant to acquittal where evidence is presented that others had equal access to a vehicle or that the vehicle had recently been used by others, applies only where the sole evidence of possession of contraband found in the vehicle is the defendant’s ownership or possession of the vehicle.’ ” (Emphasis in original.) Pittman v. State, 208 Ga. App. 211, 214 (2) (430 SE2d 141) (1993).

In the instant case, Garmon’s possession of the truck was not the sole evidence that he possessed the methamphetamine found in the vehicle. Rather, evidence showed that Garmon possessed over $8,000 in cash when he was stopped and that he identified the substance as methamphetamine when asked by Deputy Bearden. Under these circumstances, it was for the factfinder to determine whether Garmon possessed the contraband.

Judgment affirmed.

Andrews, C. J., and Eldridge, J., concur. Beasley, J., concurs specially. McMurray, P. J., and Ruffin, J., dissent. Blackburn, J., not participating.

Beasley, Judge,

concurring specially.

1. Appellant Garmon is barking up the wrong tree and thereby leading off the track for a proper resolution of his constitutional challenge to the car stop. He would find the prey of success if FritziusSummers were the proper tree.

I agree with Garmon and the dissenting opinion that the boundaries of reasonableness for police seizures set in Michigan v. Summers were exceeded by the police when they stopped Garmon several miles from the residence for which a warrant authorized a search. I did not join in the majority in Fritzius v. State, and in this case the facts express no more of a justifiable governmental interest indicating a need for the seizure than they did in Fritzius.

In fact, when the stop was made, the police did not know who the two people were or what connection they had with the residence they had just left. The no-knock warrant was for the “residence of Michael Joel Wilson” and “the motor vehicles on said premises . . . being in the possession and control of Michael Joel Wilson,” and if any named articles were found, they and “Michael Joel Wilson” were to be brought before a judicial officer. Thus, in the first place, the warrant itself did not encompass the seizure distanced from the residence and did not contemplate that the person was Wilson.

Secondly, none of the government interests identified in Summers was articulated by the police in this case, none of them appeared from the circumstances, and no others were offered other than that the decision had been made to stop any vehicles which left the house. But why? The question was not answered. The Fourth Amendment was compromised under a Michigan v. Summers analysis.

But that is not the end of the hunt for the proper constitutional quarry. Under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), the detention was a permissible vehicle stop.

“Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct^] [See Terry v. Ohio.] Investigative stops of vehicles are analogous to Terry-stops, and are invalid if based upon only unparticularized suspicion or hunch. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination.” The objective facts must indicate “a founded suspicion . . ., some basis from which the court can determine that the detention was not arbitrary or harassing.” Under Terry, “a police officer who lacks probable cause may momentarily detain a suspicious individual in.order to determine his identity or to maintain the status quo while obtaining more information.”

In Whren v. United States, the Supreme Court rejected a subjective test to determine reasonableness of a motor vehicle stop under the Fourth Amendment. What is stated by the officers as the reason for the stop is not determinative of its constitutionality. It depends on an evaluation of the objective facts surrounding the stop. Do they give rise to “at least articulable and reasonable suspicion” of criminal conduct so as to justify an investigative stop? If there are “specific, articulable facts sufficient to give rise to” such a suspicion, the stop is valid.

Facts which gave rise to an articulable suspicion of criminal conduct occurring or having just occurred and involving at least the male occupant of the vehicle, who was seen driving, were at least these. The truck was stopped not more than 20 minutes after the police monitored a telephone conversation in which a Sammy and a Dan talked about their gambling and made a side bet. Based on information the police had from the IRS, they believed that Sammy was Sammy Joe Garmon, whom they had seen on a previous occasion at a pool hall conduct what appeared to be a drug sale. The name “Sammy” had come up in several of the telephone conversations monitored earlier in December. On one occasion, the resident of the house about to be searched told a requester of drugs that “he would have to wait until Sammy called him back.”

So, when a male person left the house where the gambling transaction had occurred moments earlier, in a truck belonging to a known drug dealer (Billy Joe Kilgore, who sold methamphetamine), the police could have a reasonable belief that he was either Sammy Garmon or Dan, the males who had engaged in the bet. If it was Sammy Garmon, there was a reasonable possibility that he would be in possession of drugs.

It would also be reasonable to believe, alternatively, that it was the owner of the truck, Kilgore, and because of his livelihood and their knowledge that Wilson, the resident of the house, liked drugs, that he possessed drugs in the vehicle or had just completed a drug delivery to Wilson.

Thirdly, considering the ongoing gambling operation that was known via the telephone monitoring, it was reasonable to believe that the persons leaving had information about it or were actually involved in it.

Stopping the vehicle two or three miles from the house rather than at the house was justifiable also. It was not, in this sense, a stale stop. Had the driver seen police closing in on him, he could have alerted the occupants of the house by horn blow or possibly by car phone that the police were on the premises. Much of the evidence of criminal activity which the police were authorized by the search warrant to seize could be quickly and easily destroyed. In addition, if police approached the truck while it was still visible from the house, this activity would have informed the occupant to police presence and allowed frustration of the search warrant’s execution. Even signaling the car to stop somewhere close to the house would not have allowed enough time for the other officers to announce their presence at the door with the warrant and secure the house for the search. A premature police car presence and activated blue light in the truck occupants’ view would have allowed the truck occupants to make a car phone call to the house before the police were ready to announce their presence. It would be reasonable to suspect that persons engaged in gambling or drug transactions might have a car phone.

Based on these objective facts, there was at least an articulable suspicion which warranted the stop and investigatory detention. The trial court is properly affirmed in this regard.

2. As to Division 2 of the majority opinion, I fully concur.

Ruffin, Judge,

dissenting.

Because I believe that the stop of Garmon’s vehicle was improper, I respectfully dissent.

Neither Michigan v. Summers, 452 U. S. 692 (101 SC 2587, 69 LE2d 340) (1981), nor Fritzius v. State, 225 Ga. App. 642 (484 SE2d 743) (1997), cited by the majority, supports the stop in this case. In Summers, police officers were about to execute a search warrant on a house when they encountered and detained its resident, Summers, leaving the premises. The officers detained Summers during the search and, after finding contraband in the house, arrested him. During a search of Summers’ person, the officers found additional contraband. Summers moved to suppress evidence of the contraband found on his person because it resulted from a detention which violated bis Fourth Amendment rights. Although the trial court agreed and suppressed the evidence, the United States Supreme Court reversed, concluding that the officers were permitted to detain Summers while they searched his home.

In addressing the propriety of the detention, the Supreme Court found that the resulting intrusion on Summers’ privacy and restraint on his liberty were less severe than that caused by the search of his home. Summers, supra at 701. In this regard, the Court reasoned that the premises search was a “substantial invasion of the privacy of the persons who resided there . . . [and that most citizens] would elect to remain in order to observe the search of their possessions.” (Emphasis supplied.) Id. at 701. In addition, the Court found the detention justified because law enforcement officials have a legitimate interest in preventing flight if contraband is found during the search. Id. at 702. The Court further justified the detention on the ground that “the orderly completion of the search may be facilitated if the occupants of the premises are present. Their self-interest may induce them to open locked doors or locked containers to avoid the use of force that is not only damaging to property but may also delay the completion of the task at hand.” (Emphasis supplied.) Id. at 703.

It is clear from Summers that, in approving the detention of Summers, the Court relied exclusively on reasons dependent upon his residence in the home. Because Summers lived in the home that was being searched, the intrusions on his privacy and liberty interests were less objectionable, the officers could prevent his flight if contraband was found and he could facilitate the officers’ search and minimize any unnecessary intrusion.

We recently applied these same factors in approving a vehicle stop in Fritzius, supra. In Fritzius, police were about to execute a search warrant on a mobile home occupied by a man named Henry Fallaw when an officer observed two men leave the home, enter a vehicle and drive away. An officer was instructed to stop the vehicle and “find out if Fallaw, who was named in the warrant, was in the car.” Id. at 644. In accordance with these instructions, an officer stopped the vehicle approximately two miles away from the home and subsequently discovered contraband in the car. Fritzius, the vehicle owner, moved to suppress evidence of the contraband on the ground that it was the fruit of an unlawful stop. The trial court denied Fritzius’ motion to suppress the evidence, and on appeal, this Court affirmed.

The Fritzius majority reasoned that if the Court in Summers allowed police to detain the resident at the premises, then police could similarly stop a car two miles away from the premises and determine if the owner was present in the vehicle. The Fritzius majority reasoned that: “It would appear reasonable within the meaning of the Fourth and Fourteenth Amendments for a police officer, knowing that certain persons and premises were the subject of the immediate execution of a search warrant, to detain temporarily a vehicle containing occupants who had just departed the premises to be searched in order to identify the occupants and to see if one of them was a person named in the warrant. Under such circumstances, the detention would be minimally intrusive and neither an arbitrary nor capricious exercise of police power.” (Emphasis supplied and omitted.) Id. at 646.

Neither Summers nor Fritzius authorized the stop of Garmon’s vehicle in the present case. The evidence is clear that Garmon neither resided in the premises being searched nor was he stopped immediately outside the premises as was the defendant in Summers. And, unlike Fritzius, where the officer stopped the car for the sole and specific purpose of identifying the occupants to see if one of them was named in the warrant, the evidence in this case clearly established that Deputy Bearden was instructed to stop the vehicle and detain its occupants, without regard to whether one of the occupants was the homeowner, Wilson.

Decided December 4, 1998

Mark J. Radish, Rhonda L. Byers, for appellant.

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

Because Garmon did not reside in the premises being searched, his detention resulted in a substantial intrusion into his privacy and liberty interests. Indeed, Garmon was not named in the warrant, there is no evidence he had any interest in the contents of the home being searched and there appears no reason why he would elect to be present during the search of the home. See Summers, supra at 701. Furthermore, assuming contraband was found in the home, Garmon’s previous mere presence in the residence would have been insufficient to attribute possession of the contraband to him and the risk of his flight would thus not have been a factor. See Williams v. State, 207 Ga. App. 782, 784 (4) (429 SE2d 153) (1993); Summers, supra at 702. Finally, because Garmon did not reside there, he could not facilitate the officers’ search, and accordingly had no interest in assisting the officers in this regard. See id. at 703. Because there existed no valid justification for stopping Garmon’s automobile, I would find the stop unreasonable and reverse his conviction.

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

        Fritzius v. State, 225 Ga. App. 642 (484 SE2d 743) (1997); Michigan v. Summers, 452 U. S. 692 (101 SC 2587, 69 LE2d 340) (1981).

       (Citations and punctuation omitted.) Jorgensen v. State, 207 Ga. App. 545, 546 (428 SE2d 440) (1993).

       (Citations and punctuation omitted.) State v. McFarland, 201 Ga. App. 495, 496 (411 SE2d 314) (1991).

        State v. Corbett, 205 Ga. App. 554, 556 (423 SE2d 38) (1992).

       517 U. S. 806 (116 SC 1769, 135 LE2d 89) (1996).

        United States v. McKie, 951 F2d 399, 402 (II) (D.C. Cir. 1991): “Terry requires only that the facts establishing reasonable suspicion be ‘articulable’ •— as opposed to ‘inchoate’ — not that the officer making the stop precisely and individually articulate the facts that added up to suspicion in his mind. The Terry standard being one of objective reasonableness, we are not limited to what the stopping officer says or to evidence of his subjective rationale; rather, we look to the record as a whole to determine what facts were known to the officer and then consider whether a reasonable officer in those circumstances would have been suspicious. [Cit.f

        Delaware v. Prouse, 440 U. S. 648, 663 (99 SC 1391, 59 LE2d 660) (1979); Johnson v. State, 230 Ga. App. 535, 537 (1) (496 SE2d 785) (1998); United States v. McKie, supra.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A98A1881.
    COPELAND v. THE STATE.
    (510 SE2d 124)
   Judge Harold R. Banke.

Robert J. Copeland, Jr. was convicted of homicide by vehicle, hit and run, and driving under the influence of alcohol. On appeal, Copeland enumerates three errors.

The evidence, when viewed in a light most favorable to the verdict, showed that Copeland and a co-worker, Richard Brink, left work at about 1:30 p.m. on December 24 and stopped for drinks at a downtown bar. After several hours of drinking, Copeland, driving a red Pontiac Grand Am, dropped Brink and another man off at a bus station.

Eyewitness Joseph Guerin testified that at about 6:30 p.m., while traveling in the extreme right lane he was passed on 1-85 north on the left by a red car which then abruptly swerved to the right and slammed into a gray Hyundai Excel that had stopped in the emergency lane. The driver, Michelle Montgomery, had halted so that her passenger could fix a balky window. Her passenger, who was outside the vehicle at the time of impact, was not injured. When Guerin stopped to render aid, Montgomery was unconscious and gasping for air. She later died from massive internal bleeding. Guerin noticed a white male at the scene whose speech was slurred and who appeared dazed. Although Guerin provided police with the man’s description, he was unable to identify Copeland in a photographic array.

Another motorist, Irene Briggs, stopped almost immediately and went over to the red car, a Pontiac Grand Am, and found Copeland, still seated behind the steering wheel, dazed, smelling of alcoholic beverages, and in her opinion, drunk. When Briggs asked Copeland if he was alright, he said he was and that he had been driving. A few minutes later, Copeland denied being the driver. According to Briggs, Copeland had red and blurry eyes and slurred speech. Copeland remained at the scene until emergency vehicles began arriving but then walked off in a northerly direction up 1-85 toward the next exit, Shallowford Road. Briggs positively identified Copeland from a photographic array. At trial, Briggs testified that Copeland was the man driving the red car “without a shadow of a doubt.”

A computer check of the Pontiac Grand Am’s tag showed that the vehicle was registered to Copeland, who lived at an address off the Shallowford exit. Within 15 minutes of the collision, Officer Ray Davis was dispatched to Copeland’s address and interviewed his roommate, Wesley Doyle. Doyle confirmed that the Pontiac belonged to Copeland and said that he had gone to work that morning and not yet returned. Doyle provided a description of Copeland and agreed to notify police if he heard from Copeland. At about 7:20 p.m., Doyle contacted 911 to report that Copeland had called him from a Shell station at the Shallowford exit on 1-85 and asked him for a ride, claiming that his car had been stolen from a bus station in downtown Atlanta.

Officer Davis intercepted Copeland at the service station pay phone. Copeland’s face appeared flushed, he was unsteady on his feet and swaying, his eyes were glassy and bloodshot, his speech was slurred and he smelled strongly of alcoholic beverages. Copeland claimed that his car had been stolen and that he had hitchhiked to that exit. Copeland denied being involved in the accident and refused to submit to a blood test saying, “I know I have been drinking.” Investigators were unable to detect any damage to the steering column or ignition switch or to find any evidence that Copeland’s vehicle had been stolen or tampered with. Held:

1. The evidence satisfies the strictures of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Notwithstanding Copeland’s claim to the contrary, the evidence was sufficient to establish that he was, in fact, the driver of the car and that he was under the influence of alcohol to the extent that he was a less safe driver. Blackwell v. State, 180 Ga. App. 253, 255 (2) (349 SE2d 13) (1986).

When last seen by a co-worker with whom he had been drinking, Copeland was driving his own car. No evidence indicated that this vehicle had been stolen or tampered with or that it had been reported stolen. Briggs, who arrived on the crash scene almost immediately, spoke with Copeland while he was still seated behind the wheel and Copeland admitted to her he had been driving. McLarty v. State, 176 Ga. App. 433, 435 (2) (336 SE2d 273) (1985).

Similarly, the evidence was sufficient to sustain the conviction for driving under the influence of alcohol. A witness identified Copeland as the driver of the vehicle involved in the fatality. Although denying his involvement in thé hit and run incident, Copeland admitted to the investigating officer that he had been drinking. According to testimony elicited from three witnesses, Copeland appeared unsteady on his feet and was swaying, acted dazed, had bloodshot or bleary eyes, smelled of alcoholic beverages, and slurred his speech. See Frye v. State, 189 Ga. App. 181 (375 SE2d 101) (1988).

2. Copeland contends that the trial court impermissibly admitted three statements into evidence which were not part of the res gestae.

(a) Copeland claims that Briggs improperly testified that Crawford (the passenger in the victim’s car) said that they had just pulled over when “this car came and slammed them.” A trial court’s determination that evidence is admissible as part of the res gestae will not be disturbed unless that finding is clearly erroneous. Stovall v. State, 216 Ga. App. 138, 139 (1) (453 SE2d 110) (1995). Here, Briggs testified that the passenger was frantic, hysterical, and “ ‘just screaming.’ And, you know, he told me that. . . .” This statement, precisely the kind of excited utterance contemplated by OCGA § 24-3-3, was made almost immediately after the crash as a spontaneous reaction to a startling event rather than as the result of reflective thought. House v. State, 252 Ga. 409, 410 (2) (314 SE2d 195) (1984).

Having held that this evidence was properly admitted as res gestae, we need not address Copeland’s contention that the State’s efforts to locate the declarant were inadequate. Stovall, 216 Ga. App. at 139 (1).

Decided December 4, 1998.

Alan Z. Eisenstein, Kendal D. Silas, Konny L. Mitchell, for appellant.

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

(b) Copeland claims that the testimony of Detective Kaulback violated his confrontation rights in that Kaulback testified that Guerin and Briggs gave consistent descriptions of the driver. Even assuming arguendo that Kaulback improperly offered her opinion that the two descriptions were “consistent,” Copeland cannot show the requisite harm. Kaulback, Guerin, and Briggs were subjected to thorough and sifting cross-examinations, and Copeland was able to address any inconsistencies in their descriptions and to attack Kaulback’s conclusion. Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901) (1994) (harm and error must be shown for reversal).

3. Copeland waived his right to assert that his trial counsel was ineffective. Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996) (failure to seize opportunity to raise issue of ineffectiveness at earliest practicable opportunity creates procedural bar to assert the issue later). Copeland’s failure to raise the ineffectiveness issue in a motion for new trial after he obtained appellate counsel resulted in a waiver of any ineffectiveness issues. Id. Clay v. State, 232 Ga. App. 541, 542 (502 SE2d 267) (1998).

Judgment affirmed.

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

       Copeland filed an enumeration of errors consisting of three purported errors. In a supplemental brief, Copeland attempted to enlarge his enumeration to include several additional errors. This he cannot do. Sentry Ins. v. Majeed, 194 Ga. App. 276, 277 (1) (390 SE2d 269) (1990); OCGA § 5-6-40.


author: McMurray, Presiding Judge.

text:
    A99A0460.
    RELIANCE INSURANCE COMPANY v. COBB COUNTY.
    (510 SE2d 129)
   McMurray, Presiding Judge.

Cobb County brought a breach of contract action against defendant Ruby-Collins, Inc. and also against Reliance Insurance Company as surety for defendant Ruby-Collins, Inc. On September 3, 1998, the trial court granted partial summary judgment in favor of Cobb County, and defendant Ruby-Collins, Inc. filed a notice of appeal the next day. That appeal has been docketed with this Court as Case No. A99A0365.

Also on September 3,1998, the trial court denied Reliance Insurance Company’s motion to compel Cobb County’s response to certain discovery requests. Reliance Insurance Company, represented by the same counsel as defendant Ruby-Collins, Inc., subsequently initiated this appeal by filing a notice of direct appeal on October 2, 1998. Held:

It is the duty of this Court on its own motion to inquire into its jurisdiction. Cole v. Cole, 205 Ga. App. 332 (1) (422 SE2d 230). Reliance asserts that a notice of direct appeal from the denial of its motion to compel discovery is authorized by the decision of the Supreme Court of Georgia in Martin v. Williams, 263 Ga. 707 (438 SE2d 353). We disagree.

In Martin v. Williams, 263 Ga. 707, supra, the Supreme Court reaffirmed the policy discouraging appellate review by installment and held that “[OCGA] § 5-6-34 (d) permits an order that, standing alone, would be subject to the application requirements of § 5-6-34 (b) to be added to the appeal of an order that is directly appealable. See Southeast Ceramics[ v. Klem, 246 Ga. 294-295 (271 SE2d 199)]; Executive Jet [Sales v. Jet America, 242 Ga. 307-308 (248 SE2d 676)].” Id. at 709 (3), 710. But nothing in Martin v. Williams, 263 Ga. 707, supra; Southeast Ceramics v. Klem, 246 Ga. 294, supra; or Executive Jet Sales v. Jet America, 242 Ga. 307, supra, authorizes a separate direct appeal from the denial of a discovery motion (an interlocutory ruling subject to the discretionary appeal procedures), simply because there is an appealable grant of partial summary judgment in favor of the opposing party.

In such a circumstance, Reliance Insurance Company had two traditional avenues to obtain review of the trial court’s discovery ruling before the entry of final judgment. First, the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b) were available. Johnson & Johnson v. Kaufman, 226 Ga. App. 77, 78 (485 SE2d 525). Second, a timely notice of cross-appeal from the grant of partial summary judgment was available. Executive Jet Sales v. Jet America, 242 Ga. 307, 308, supra. “In civil cases, [an] appellee may institute cross appeal by filing notice thereof within 15 days from service of the notice of appeal by the appellant; and the appellee may present for adjudication on the cross appeal all errors or rulings adversely affecting him; and in no case shall the appellee be required to institute an independent appeal on his own right, although the appellee may at his option file an independent appeal.” (Emphasis supplied.) OCGA § 5-6-38 (a). “An interpretation of the word ‘appellee’ as used in Code [Ann.] § 6-803 [now OCGA § 5-6-38] to mean only the party against whom the appeal is taken and who has a particular interest adverse to setting aside the judgment appealed [is] too restrictive.” Executive Jet Sales v. Jet America, 242 Ga. 307, 308, supra. In the case sub judice, we hold that Reliance Insurance Company, as a co-defendant with Ruby-Collins, Inc. in Cobb County’s breach of contract action, is an “appellee” within the meaning of OCGA § 5-6-38 (a), and so was entitled to file a notice of cross-appeal within 15 days from service of the notice of appeal by Ruby-Collins, Inc. But there was no timely notice of cross-appeal. The independent appeal authorized by OCGA § 5-6-38 (a) is not the direct appeal here attempted but consists of an application for discretionary review of a timely certified interlocutory discovery order. Reliance Insurance Company did not perfect an appeal under either available avenue. The separate direct appeal from the interlocutory discovery ruling is ineffective to confer appellate jurisdiction on this Court, and so the appeal in Case No. A99A0460 must be dismissed.

Decided December 4, 1998.

Alston & Bird, William H. Hughes, Jr., Kenneth D. Steele, Blaine A. Norris, for appellant.

Freeman, Mathis & Gary, Thomas B. Gary, Dorothy H. Bishop, for appellee.

Appeal dismissed.

Andrews, C. J., and Ruffin, J., concur.


author: Ruffin, Judge.

text:
    A98A1523.
    SATTERWHITE v. THE STATE.
    (509 SE2d 97)
   Ruffin, Judge.

A jury found Wendall Satterwhite guilty of rape, kidnapping, and aggravated assault, and his conviction was affirmed on appeal. Satterwhite v. State, 212 Ga. App. 543 (442 SE2d 5) (1994). In 1996, Satterwhite filed an extraordinary motion for new trial pursuant to OCGA § 5-5-41, arguing that juror misconduct contributed to the guilty verdict. The trial court denied the motion, and we granted Satterwhite’s application for discretionary review. In his sole enumeration of error, Satterwhite asserts the trial court erred in failing to grant his motion for new trial given the evidence of juror misconduct. For reasons which follow, we affirm.

Satterwhite was convicted in November 1992. Immediately following the trial, the prosecutor and defense attorney questioned jury foreman David Flynn regarding his reasoning in issuing a guilty verdict. Flynn told both attorneys that “if [Satterwhite] hadn’t taken the stand himself and been caught in lies” he would have “let him go.” Flynn mentioned nothing about juror misconduct at this time.

While traveling in California in 1996, Flynn watched a television show about a trial in which a juror wanted to go to the scene of the crime, but was advised that such conduct was improper. This show prompted an epiphany for Flynn regarding alleged juror misconduct that occurred during jury deliberations back in 1992, and Flynn contacted Satterwhite’s attorney to report this misconduct. Following Flynn’s call, Satterwhite filed his extraordinary motion for new trial on October 23, 1996. At the hearing on the motion, Flynn testified that, during the trial, the jury had not reached a verdict at the end of a day of deliberation. After instructing the jury not to discuss the case with anyone, the judge sent the jury home. According to Flynn, when the jury reconvened, a female juror mentioned that she had discussed the case with her husband the night before. This juror relayed the conversation she had with her husband regarding the effects of crack cocaine and, based on her newly-gained knowledge, answered questions posed by other jurors. Flynn also testified that a male juror said he had visited the crime scene and that “it looked like it could have happened like [the victim testified].” Flynn said these two statements caused him to change his vote from innocent to guilty. When questioned about other evidence supporting Satterwhite’s conviction, Flynn could not recall all of the victim’s testimony. He also said he could not remember the “lies” Satterwhite told, if any.

Based on the evidence adduced at the hearing, the trial court found that the jurors’ statements amounted to juror misconduct, but denied Satterwhite’s motion for new trial because the misconduct was not highly prejudicial and was harmless beyond a reasonable doubt.

The rule that jurors cannot impeach their own verdict is deeply rooted in Georgia law. Watkins v. State, 237 Ga. 678, 683 (229 SE2d 465) (1976). This rule promotes “the need to keep inviolate the sanctity of juror deliberations, the desirability of promoting the finality of jury verdicts and the necessity of protecting jurors from post-trial harassment.” Id. at 683-684. But there are constitutional limitations to this general principle. This rule is inapplicable where jurors intentionally gather extra-judicial evidence that is highly prejudicial to the accused and communicate that information to the other jurors in a closed jury room. Boles v. State, 168 Ga. App. 904, 907 (2) (310 SE2d 741) (1983). Under these circumstances, the juror making such statements essentially becomes an unsworn witness against the defendant in violation of the Sixth Amendment. Id. Even so, “[a] jury verdict will not be upset solely because of such statements unless the statements are so prejudicial that the verdict must be deemed inherently lacking in due process. Put another way, a new trial will not be granted unless there is a reasonable possibility that the improper evidence collected by jurors contributed to the conviction.” (Citations and punctuation omitted.) Bobo v. State, 254 Ga. 146 (1) (327 SE2d 208) (1985).

The trial court concluded that juror misconduct did occur during jury deliberations in 1992. Since neither of the jurors who allegedly engaged in this misconduct was called to testify at the hearing, the substance of their statements (i.e., that they had visited the crime scene and discussed the case with others) constitutes hearsay and cannot be used to prove that they actually undertook these actions. See Shaver v. State, 199 Ga. App. 428, 429 (1) (405 SE2d 281) (1991) (hearsay evidence, even if admitted without objection, has no probative value). However, the trial court apparently found that the jurors’ statements themselves constituted juror misconduct. Since the communication of information purportedly obtained through extra-judicial acts can be as prejudicial as the extra-judicial acts themselves, we will not disturb this finding on appeal. However, we note that “[e]xtra-record statements made by a juror concerning the defendant during the course of jury trial are not presumptively so prejudicial as to infect the verdict and require that the defendant be given a new trial.” Bobo, 254 Ga. at 146.

Given the evidence of juror misconduct, the issue is whether the misconduct was so prejudicial that the verdict must be deemed inherently lacking in due process. See Bobo, supra. Flynn’s testimony that his vote was changed by the statements of the other jurors suggests that Satterwhite, like Bobo, was prejudiced by the misconduct. However, there are marked distinctions between this case and Bobo.

In Bobo, the allegations of juror misconduct surfaced shortly after the trial and were not the basis for an extraordinary motion for new trial. Id. at 146-147. At a post-trial hearing, the two jurors who engaged in the misconduct testified that they had gone to the crime scene to verify that the evidence presented by the prosecution was credible. Id. at 147. One of these jurors admitted she told her fellow jurors about her extra-judicial evidence-gathering for the purpose of persuading them to vote for conviction. Two other jurors who did not engage in misconduct also testified. These jurors established that the extra-judicial evidence did prejudice the defendant. Given the evidence that jurors “affirmatively sought to sway their fellow jurors’ votes by relating personal observations and opinions concerning facts and circumstances surrounding the crime which were critical to determining the credibility of the sole eyewitness’ identification,” the Supreme Court concluded the misconduct required a reversal. Id. at 148.

In the instant case, four years had passed between the verdict and Flynn’s realization that there had been juror misconduct during jury deliberations. In view of this time lapse, Flynn conceded his inability to recall all of the evidence properly presented to the jury. Therefore, his testimony in 1996 regarding how he reached a verdict in 1992 is questionable. Moreover, since Flynn was the only juror to testify at the hearing on Satterwhite’s extraordinary motion, no other jurors corroborated his contentions regarding either the alleged misconduct or the impact the misconduct had on the jury. Furthermore, Flynn’s testimony regarding how he reached a decision was inconsistent. In 1992, he attributed his guilty vote to “lies” Satterwhite told on the stand. In 1996, however, he could not recall “all of [the lies] if there were any.”

Decided November 9, 1998

Reconsideration denied December 7, 1998

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

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

Flynn admitted his recollection of events was much better in 1992 than it was in 1996. The trial court chose to believe Flynn’s 1992 statement that he based his verdict on lies Satterwhite told rather than on any juror misconduct. Therefore, the trial court concluded Satterwhite had not been prejudiced by juror misconduct and denied Satterwhite’s extraordinary motion for new trial. “When the trial judge passes upon the grounds of an extraordinary motion for new trial he occupies the position of a trier of fact, and his discretion in refusing the motion will not be disturbed unless manifestly abused.” Chester v. State, 172 Ga. App. 394 (1) (323 SE2d 248) (1984). Under these circumstances, the trial court did not abuse its discretion.

We note that the public policy considerations underlying the rule that jurors cannot impeach their own verdict support this result. To allow a lone juror who has had a change of heart to overturn a verdict four years after the fact invites defendants to approach jurors months or even years after a guilty verdict has been rendered in an attempt to gain evidence to support an extraordinary motion for new trial. If Flynn had come forward with his allegations of juror misconduct shortly after the trial, it may have required a different result. However, we do not wish to encourage jurors to second-guess their decision-making long after a verdict has been rendered, as this would undermine the finality of verdicts. See Watkins v. State, supra.

Judgment affirmed.

Pope, P. J., concurs. Beasley, J., concurs in the judgment only.


text:
    A98A2064.
    RAMEY v. THE STATE.
    (510 SE2d 358)
   Judge Harold R. Banke.

Willie Claude Ramey was convicted of kidnapping with bodily injury, two counts of kidnapping, sexual battery, and armed robbery. He enumerates five errors on appeal.

This case arose after the victim’s car broke down on Interstate 20. The 19-year-old victim and her 14-year-old brother were driving from their North Carolina home to visit the victim’s fiance, who was stationed in Biloxi. After the car was towed to a gas station at the nearest exit, the victim added oil and water and attempted to continue, but the car stalled again on the entrance ramp. The victim walked back to the gas station and called her fiance, who instructed her to wait there and he would pick her up in five hours.

After approximately four hours, Ramey approached the victim and her brother and offered to fix the car. As the victim and her brother entered Ramey’s car, they realized that two other men, Ramey’s co-defendants, were inside. After Ramey failed to start the victim’s car, the victim asked him to drive them back to the gas station. Instead, Ramey got in the back seat and his co-defendant accelerated the car onto the interstate. Then the man in the passenger seat pulled a gun and pointed it at the victim’s head. He demanded money, and the victim gave him $200. Then he forced her to strip, and threw all her clothing out the window as she begged for her brother’s release. Moments later, Ramey forced her to relinquish her diamond earrings, and fondled her left breast and vaginal area.

The car finally stopped on a isolated rural road. There the men forced the brother to say the alphabet backward and forward, threatening to shoot him if he made an error. Then the man with the gun forced the victim to perform oral sex on him. The other co-defendant began anally sodomizing her and then the two men changed places several times while Ramey held the gun to the brother’s head. The assaults stopped when the victim lost control of her bowels and one of the men kicked her. Then Ramey licked her temple and instructed her to turn around and prepare to die. After the victim told her brother she loved him and was sorry for getting them into this, the three men unexpectedly drove away. Brother and sister walked until they found a house and assistance. The victim was subsequently able to identify her assailants from a videotape the police provided. Held:

1. Ramey contends that the evidence was insufficient to show he was a party to the crimes of kidnapping or armed robbery because he, too, was kidnapped and feared harm from the gun. But the record, viewed in the light most favorable to the verdict, refutes this argument. The victim’s testimony established that; Ramey’s involvement in the offenses constituted aiding and abetting. OCGA § 16-2-20 (b) (3). Ramey initiated the contact with the victim and her brother, forced her to give him her earrings, fondled her, held the gun on her brother while the co-defendants brutally sodomized her, and counted the money the victim surrendered. See Tanker v. State, 230 Ga. App. 77-78 (1) (495 SE2d 315) (1997). The victim testified that the gun was never pointed at Ramey. Such evidence authorized the rejection of any claim that Ramey was a victim. Powell v. State, 228 Ga. App. 56, 58 (6) (491 SE2d 135) (1997).

Decided December 7, 1998

Reconsideration dismissed February 18, 1999.

L. Stanford Cox III, for appellant.

Alan A. Cook, District Attorney, for appellee.

2. Ramey argues that the trial court’s instruction on the definition of a crime confused the jury by charging that a crime could consist of an omission to act or criminal negligence, two elements not involved in this case. The record shows that Ramey failed to object to the charge, which mirrored the language of OCGA § 16-2-1. Brown v. State, 228 Ga. App. 748, 751-752 (3) (492 SE2d 555) (1997). In view of the charge as a whole, which properly instructed on the burden of proof and the elements of the crimes and omitted the language at issue in a recharge, we find no substantial error requiring our review under OCGA § 5-5-24 (c). Medina v. State, 234 Ga. App. 13, 15 (2) (505 SE2d 768) (1998); Holland v. State, 172 Ga. App. 444, 445 (2) (323 SE2d 632) (1984).

3. Ramey maintains his trial counsel was ineffective for (1) failing to object to the State’s inclusion of facts not in evidence in its closing argument; (2) failing to object to the jury charge on the definition of a crime, which included instructions on an omission to act and criminal negligence; and (3) abandoning a challenge to the array of the grand and petit juries. The record shows that appellate counsel chose not to file a motion for new trial and did not seek a hearing on the ineffectiveness issue in the trial court, notwithstanding the fact that he appeared at a hearing before the trial court on another issue and was appointed to represent Ramey in this appeal months prior to the hearing.

Ineffectiveness claims must be raised at the earliest practicable moment. Howard v. State, 233 Ga. App. 724, 730 (7) (505 SE2d 768) (1998). Thus, such claims must be raised before appeal if the opportunity to do so is available. Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996). The ability to raise the ineffectiveness issue in a motion for new trial presents just such an opportunity and the failure to seize it procedurally bars any attempt to raise the issue at a later time. Id. It follows that Ramey’s ineffectiveness issues were waived. Howard, 233 Ga. App. at 730 (7).

Judgment affirmed.

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

       The charge was read as follows: “This defendant is charged with a crime against the laws of this state. A crime is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.”


text:
    A98A2236.
    THE STATE v. RAY.
    (510 SE2d 361)
    Decided December 7, 1998.

      Tambra P. Colston, District Attorney, Lisa W. Tarvin, Martha P. Jacobs, Assistant District Attorneys, for appellant.

      Farless & Newton, William H. Newton III, for appellee.
   Judge Harold R. Banke.

Although the jury acquitted Paul E. Ray of malice murder, felony murder, armed robbery, and burglary, it found him guilty of possession of a firearm during the commission of a felony. Ray’s co-defendant was convicted on all five counts. Finding the verdict against Ray illegal, the trial court refused to enforce it. The State appeals from the order in arrest of the judgment and conviction. Held:

The State contends that the trial court committed reversible error by refusing to sentence Ray and arresting the judgment and conviction. We disagree.

An essential element of a felony firearm conviction under OCGA § 16-11-106 (b) is the commission of a felony or an attempt to do so. Strong v. State, 223 Ga. App. 434-435 (477 SE2d 866) (1996). “A conviction of possession of a weapon during the commission of a felony must stand or fall in conjunction with the underlying felony upon which the charge is predicated.” Strong, 223 Ga. App. at 435.

Here, the State premised the firearms count on commission of “armed robbery and burglary.” Because Ray’s acquittal on the underlying felonies vitiates an essential element of the possession charge, that conviction cannot stand. Compare Varnadoe v. State, 227 Ga. App. 663, 664 (2) (490 SE2d 517) (1997). Accordingly, the trial court properly arrested the judgment.

Notwithstanding the State’s contention to the contrary, the abolition of the inconsistent verdict rule in Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986) has no bearing on this case. Strong, 223 Ga. App. at 435.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A98A1510.
    PEEK v. THE STATE.
    (509 SE2d 358)
   Beasley, Judge.

Counts 1 and 2 of an accusation charged Peek with violations of OCGA § 40-6-391 (a) (1) (DUI to the extent that it is less safe to drive) and OCGA § 40-6-391 (a) (5) (driving with a blood-alcohol concentration of 0.10 grams or more). The jury found Peek guilty of both counts. Judgment of conviction and sentence was entered on Count 1.

On the evening of August 4, 1995, Clayton County police officer Hammer initiated a traffic stop after he observed Peek driving somewhat erratically. Hammer arrested Peek after detecting a strong odor of alcohol on his breath and observing that he was unable to maintain his balance or follow instructions. The officer transported Peek to Southern Regional Medical Center where his blood was drawn by a phlebotomist, Ha Bolia, at the request of the officer.

Peek charges the trial court with error in denying his motion to suppress the results of the blood test, on two grounds: the State failed to lay a foundation for the admission of the test results pursuant to the requirements of OCGA § 40-6-392 (a) (2) and (e); the State’s attempt to do so through hearsay evidence presented by Southern Regional’s executive secretary of human resources, Christine Thomas, deprived him of the right to confront and cross-examine Bolia, a non-witness.

Thomas testified that she is familiar with the method of keeping business records at the medical center and that, in the regular course of its business, the center keeps records on personnel who draw blood. Thomas produced a photocopy of the original of an “employee education cumulative report” for Southern Regional’s employee/phlebotomist Ha Bolia. The document, which is a computer printout, was taken from Bolia’s personnel file. It bears a “run date” of August 23, 1995. It shows the anniversary date of Bolia’s employment as September 24, 1988, and lists numerous educational programs taken by Bolia between October 31, 1988, and August 18, 1994.

Thomas testified this document lists “educational in-services” that the phlebotomist attended in the course of his employment at Southern Regional, that such attendance is required in order for the phlebotomist to maintain his job qualifications, that educational records such as this are required for annual review of every employee, and that such records are placed in each employee’s personnel file at the time the annual review is conducted. Over hearsay objection by Peek, the trial court admitted this document under the business records exception to the hearsay rule and ruled that it established that Bolia was a certified phlebotomist when he drew Peek’s blood. Subsequent evidence showed that Peek’s blood-alcohol concentration was .11 grams.

OCGA § 40-6-392 “establishes] a mandatory requirement applicable in any criminal case ‘arising out of’ an alleged violation of OCGA § 40-6-391 and in which that violation is an essential element of the asserted criminal liability. The mandatory requirement is that when the State seeks to prove the violation by evidence of a chemical test, the State has the burden of demonstrating compliance with the statutory requirements.”

OCGA § 40-6-392 (a) (2) provides that ££[w]hen a person shall undergo a .chemical test at the request of a law enforcement officer, only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein.” As indicated by the words “other qualified person,” the list of encompassed occupations and professions in OCGA § 40-6-392 (a) (2) is not exhaustive. Thurman v. State held that the phrase “other qualified person” in OCGA § 40-6-392 (a) (2) includes a trained phlebotomist.

Subsection (e) of OCGA § 40-6-392 was re-enacted in 1990 to provide that the State may carry the subsection (a) burden by presenting “[a] certification by the office of the Secretary of State or by the Department of Human Resources that [the person drawing the blood] was a licensed or certified physician, physician’s assistant, registered nurse, practical nurse, medical technologist, medical laboratory technician, or phlebotomist.”

Harden v. State recognized that another way for the State to carry its burden is to call the person who drew the blood as a witness and present the witness’ testimony as to his or her qualifications. “It is clear from the language in Harden, as well as from prior and subsequent case law, that [the two foregoing] methods are not exclusive. We held in Harden that the State’s burden could be satisfied in ‘at least two ways.’ [Cit.] The words £at least’ imply that other ways exist, and the case law makes clear that the State’s burden may be carried in other ways. [Cits.]”

In Brown v. State the defendant argued that his Sixth Amendment right to confront witnesses against him was violated by OCGA § 40-6-392 (f), which authorizes as self-authenticating the admission of inspection certificates on breath-testing devices. The Supreme Court rejected this notion because the inspection certificates are admissible under the firmly rooted hearsay exception for business records. As to Brown’s argument that such certificates do not fall within the business records exception because they contain the conelusion of an absent third party, Brown held that the certificates are merely memorials of the fact that all required tests were made and that a particular device passed the tests.

Decided November 16, 1998

Reconsideration denied December 8, 1998

Monte K. Davis, George A. Stein, for appellant.

Keith C. Martin, Solicitor, Kimberly A. Gross, Assistant Solicitor, for appellee.

In Peek’s case, as in Brown, the State properly grounded admission of the document under OCGA § 24-3-14 (b), the business records exception to the rule against hearsay. Specifically, the evidence authorized the court to find that this document is a record of educational courses taken by the phlebotomist in order to maintain his job qualifications, that the document was prepared in the regular course of business of the medical center, and that it is the regular course of the medical center’s business to prepare such document at the time it makes its annual determination of whether the employee’s job qualifications have been maintained.

Consequently, Peek’s right to confront and cross-examine the blood drawer was not violated. Contrary to Peek’s arguments, this document does not contain unauthorized conclusions or opinions, and it was not necessary for the witness who produced the document to have personal knowledge of its correctness. We note that Peek had ample opportunity to challenge the phlebotomist’s qualifications, as the report of the blood test results which Peek had a copy of over nine months prior to trial showed the identity, professional designation and location of the person who drew his blood.

Judgment affirmed.

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

        Munda v. State, 172 Ga. App. 857, 858 (1) (324 SE2d 799) (1984).

        Brahm v. State, 230 Ga. App. 407, 408 (1) (497 SE2d 240) (1998).

       172 Ga. App. 16, 17 (1) (321 SE2d 780) (1984).

       See Ga. L. 1990, p. 2048, § 5.

       210 Ga. App. 673, 674 (1) (436 SE2d 756) (1993).

       (Emphasis in original.) Brahm, supra.

       268 Ga. 76 (485 SE2d 486) (1997).

       In Price v. State, 269 Ga. 222, 223 (1) (498 SE2d 262) (1998), the defendant argued that OCGA § 40-6-392 (e) violates the constitutional right of confrontation by permitting the use of a certificate from the Secretary of State or Department of Human Resources to establish the qualifications of a blood drawer. Because such a certificate is a public record and thus satisfies the reliability concerns of the confrontation clause, the Price court upheld OCGA § 40-6-392 (e).

       This statute provides that “[a]ny writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.” See Suarez v. Suarez, 257 Ga. 102, 103-104 (2) (355 SE2d 649) (1987).

       See Brown v. State, supra.

        Hertz Corp. v. McCray, 198 Ga. App. 484, 485 (2) (402 SE2d 298) (1991).


author: Pope, Presiding Judge.

text:
    A98A1531.
    CHILDREN’S HOSPITAL OF PITTSBURGH v. GEORGIA DEPARTMENT OF MEDICAL ASSISTANCE.
    (509 SE2d 725)
   Pope, Presiding Judge.

The dispositive question in this appeal is whether there are genuine issues of material fact as to whether an out-of-state hospital provided emergency medical services to a Georgia resident. The answer is that there are indeed genuine issues of material fact. Consequently, the judgment of the superior court affirming an administrative law judge’s summary determination that there are no genuine issues of material fact is erroneous and must be reversed.

Preston Puckett was born in 1992 with a bowel disease which prevented his intestines from absorbing sufficient nutrients from food, so he had to be nourished intravenously. In 1993, Preston’s doctor, Edith Pilzer, asked the Georgia Department of Medical Assistance, which administers the state’s participation in the federal Medicaid program, to authorize an evaluation of Preston for a bowel transplant. Because such a transplant was not available in Georgia, Pilzer recommended that Children’s Hospital of Pittsburgh, in Pennsylvania, perform the procedure. The Georgia Medical Care Foundation, an organization that contracts with the department to review requests for authorization of medical assistance, approved Pfizer’s evaluation request. In January 1994, Preston was evaluated at the Children’s Hospital, which determined that he was an eligible candidate for a small bowel transplant. The department reimbursed the hospital for the evaluation costs.

Preston returned to Georgia after the evaluation. He began to have liver problems and was hospitalized here on three different occasions. Upon his third discharge from the hospital, Pilzer and Preston’s parents consulted with physicians here and in Pittsburgh and decided to transfer Preston to Children’s Hospital to await a bowel and a liver transplant. On April 17,1994, Preston was flown to Pittsburgh on Angel Flight, an emergency air service, and admitted to Children’s Hospital. He was in the hospital until he died on August 16, 1994.

The hospital sought reimbursement of $275,445 from the department for the medical services it provided Preston. The department refused reimbursement on the grounds that the services had not been previously authorized and were not provided as the result of an emergency. The hospital requested a hearing by an administrative law judge on the denial of its claim. The department and the hospital both filed motions for summary determination. The administrative law judge granted the department’s motion, denied the hospital’s motion and dismissed the hospital’s request for a hearing. The administrative law judge concluded that there are no genuine issues of material fact and that the department is entitled to judgment as a matter of law because the hospital did not get prior authorization from the department for the services and did not adequately document the emergency nature of Preston’s transfer to the hospital.

After the department commissioner affirmed the administrative law judge’s decision, the hospital sought review by the superior court. The court affirmed the department’s decision, holding that the record contains some evidence to support the administrative law judge’s determination that an emergency did not exist. We granted the hospital’s application for discretionary review of the court’s ruling.

1. “When the Court of Appeals reviews a superior court judgment in a case under the Administrative Procedure Act, our function is to determine whether the superior court has in its own final ruling committed an error of law.” (Citation and punctuation omitted.) Ga. Dept. of Pub. Safety v. Bafford, 223 Ga. App. 639, 640 (478 SE2d 444) (1996). In the instant case, the court committed an error of law by affirming the administrative law judge’s grant of summary determination to the department.

As the agency implementing the federal Medicaid program in Georgia, the department is authorized to establish rules and regulations needed to execute the state plan. OCGA § 49-4-142 (a). The department thus established its Policies and Procedure Manual for Hospital Services. Section 909 of that manual provides that out-of-state hospitals will be reimbursed for medical service provided to eligible Georgia residents if (1) the service was “prior authorized” by the department, or (2) the service was provided as a result of an emergency or life endangering situation occurring out of state.

In the instant case, it is undisputed that Children’s Hospital did not obtain authorization from the department before providing services to Preston from April until August of 1994. The sole basis for its claim of reimbursement is that it provided emergency services to Preston. Accordingly, the central question to be determined by the administrative law judge in passing on the parties’ opposing motions for summary determination was whether there are any genuine issues of material fact as to whether Children’s Hospital provided any service to Preston as the result of an emergency situation. In granting summary determination to the department, the administrative law judge effectively concluded that there are no such issues. That conclusion is erroneous.

The hospital filed three affidavits to show the emergency nature of Preston’s situation. One of the affidavits was from Dr. Pfizer, who stated that Preston was in a very tenuous situation due to the dramatic decrease in his liver function. She stated that his best chance for survival was an urgent transfer to Children’s Hospital, where he could be stabilized and receive bowel and liver transplants.

A nurse for Dr. Pfizer also submitted an affidavit. She explained that when Pfizer and the chief transplant surgeon at Children’s Hospital determined that Preston needed to go to Pittsburgh she immediately began making arrangements for the emergency air transport provided by Angel Flight. In order for Preston to qualify for the flight, it had to be certified that the needed treatment was not available locally, that the distance of travel precluded ground transport, and that time was of the essence.

The pediatric transplant coordinator at Children’s Hospital gave another affidavit. She stated that because of Preston’s condition he was subject to liver deterioration that can quickly, with little notice, lead to death. She said that, during his hospital stays in Georgia immediately before his transfer to Pittsburgh, Preston showed signs of liver deterioration and his condition was serious and life threatening. It was critical to transfer him to Children’s Hospital because he was deteriorating quickly and might have reached a point of not being transportable or no longer suitable for the needed transplants. She gave detailed descriptions of Preston’s medical problems and said that he was admitted to the hospital under a life threatening condition.

The record also contains several letters written by the transplant coordinator and by Dr. Pfizer concerning Preston’s condition and need for medical services. Additionally, there are medical records documenting the severity of Preston’s situation.

In support of its motion for summary determination, the department submitted the affidavit of Catherine Reeber, a referral coordinator for Georgia Medical Care Foundation. She reviewed the hospital’s reimbursement request. She determined that because Preston was not hospitalized, but was being monitored as an outpatient here in Georgia before his transfer to Pittsburgh, the emergency nature of the transfer was not supported.

Contrary to the conclusion of the administrative law judge, this case is not subject to summary determination. The affidavits submitted by the hospital and the department, as well as other evidence in the record, create genuine issues of material fact as to whether or not Children’s Hospital provided some emergency medical services to Preston. Because there are genuine issues of material fact, the administrative law judge erred in granting summary determination in favor of the department and in dismissing the hospital’s request for a hearing.

The superior court’s review of the administrative law judge’s decision was appellate in nature. See Howell v. Harden, 231 Ga. 594 (1) (203 SE2d 206) (1974). The court in the current case had to make a legal determination as to whether the case is subject to summary determination due to the absence of genuine issues of material fact. “It is well established that on appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. This requires a de novo review of the evidence.” (Citation and punctuation .omitted.) Dumas v. Tripps &c., 229 Ga. App. 814 (495 SE2d 129) (1997).

The court in the present case failed to conduct the required de novo review and to determine whether there exist genuine issues of material fact. In so failing, the court erroneously affirmed the administrative law judge’s summary decision in favor of the department. Compare Bd. of Nat. Resources v. Walker County, 200 Ga. App. 301 (407 SE2d 436) (1991) (court erroneously reversed administrative law judge’s grant of summary determination). Because a de novo review of the record reveals that there are genuine issues of material fact as to whether the hospital provided emergency medical services to Preston, the court’s affirmance of the grant of summary determination to the department is an error of law that must be reversed. See OCGA § 50-13-19 (h) (4).

2. The judgment of the court also had the correct effect of affirming the administrative law judge’s denial of the hospital’s motion for summary determination. Because genuine issues of fact exist as to whether the hospital provided emergency medical services, the hospital is not entitled to summary determination. Accordingly, the trial court’s affirmance of the denial of summary determination to the hospital was not error and is upheld.

3. The hospital argues that the department manual’s provision that the department will pay medical costs for an emergency occurring out of state violates federal law by requiring that the emergency originate outside the state of Georgia. The hospital claims federal law has no requirement that the emergency originate outside the state of the Medicaid patient and therefore the superior court improperly applied the department’s manual in affirming the administrative law judge’s decision.

Decided November 23, 1998

Reconsideration denied December 8, 1998

Powell, Goldstein, Frazer & Murphy, William V. Custer IV, Holly A. Pierson, Sara K. Sledge, for appellant.

Thurbert E. Baker, Attorney General, William C. Joy, Dennis R. Dunn, Senior Assistant Attorneys General, Kevin M. O’Connor, Per B. Normark, Assistant Attorneys General, for appellee.

We note that the manual phrase occurring out of state does not necessarily mean originating out of state. More importantly, the record does not show that either the court or the administrative law judge interpreted and applied the department’s manual in the manner suggested by the hospital. Neither the superior court judge nor the administrative law judge expressly made such a legal conclusion in their written decisions. “It is well settled that this Court’s jurisdiction on appeal is limited to the review of errors allegedly made below. [Cit.]” Watson v. Clayton County, 214 Ga. App. 225, 226 (447 SE2d 162) (1994). Because it is not apparent from the record before us that the alleged error took place, the hospital’s argument presents nothing for us to review.

Judgment affirmed in part and reversed in part.

Beasley and Ruffin, JJ, concur.

       Preston had Hirschsprung’s Disease; the nerves in his intestinal tract did not function.

       OCGA § 49-4-140 et seq.

       Department of Medical Assistance Rule 350-4-.26 (1) provides: “Any party may move, if supported by affidavits or other probative evidence, for a summary determination in its favor upon any of the issues being adjudicated on the basis that there is no genuine issue of material fact for determination.”

       Department of Medical Assistance Rule 350-4-.26 (4) provides: “If all factual issues are decided by summary determination, no hearing will be held and the Administrative Law Judge shall prepare a decision.” See also Continental Baking Co. v. Brock, 198 Ga. App. 578, 579 (402 SE2d 331) (1991) (administrative law judges exercise judicial functions and have authority to rule upon all motions).


author: Smith, Judge.

text:
    A98A0880.
    BANKS v. THE STATE.
    (509 SE2d 63)
   Smith, Judge.

Howard Banks was charged by accusation with DUI to the extent that it was less safe for him to drive, driving with an unlawful alcohol concentration, and speeding. The trial court directed a verdict on the less safe driver charge, and Banks was convicted of the remaining charges. Judgment was entered thereon, and Banks argues on appeal that he should not have been convicted on the charge of driving with an unlawful alcohol concentration. We find no error and affirm.

On August 18, 1996, Banks was stopped for speeding on Interstate 20 by Georgia State Patrol Trooper Chris Kirksey. Upon speaking with him, Kirksey noticed an odor of alcohol about Banks and learned from Banks that he had two beers. Banks cooperated with Kirksey’s request that he perform field sobriety tests. After administering the tests, which included a horizontal gaze nystagmus test and an alco-sensor test, Kirksey concluded that Banks was impaired and placed him under arrest. He read Banks his implied consent rights, transported him to the DeKalb County Jail, and administered a breath test using an Intoxilyzer 5000. Kirksey performed two tests using the machine, and when asked the results of the tests, he replied, “The first result was .121. The second was .116.”

1. Banks contends the trial court erroneously admitted the Intoxilyzer test results because the State failed to show that the machine operated with all its electronic and operating components in good working order, as required by OCGA § 40-6-392 (a) (1) (A). To satisfy the requirement of showing that the machine was working properly, the State tendered two certificates of inspection permitted by OCGA § 40-6-392 (f). Banks contends that the certificates were improperly admitted because the State failed to lay a proper foundation for their admission.

Assuming without deciding that the certificates were erroneously admitted, the State nevertheless laid a proper foundation for the admission of the breath test results. This Court has held that a certificate of inspection is not the sole method of meeting the foundational requirements of OCGA § 40-6-392 (a) (1) (A). See, e.g., Caldwell v. State, 230 Ga. App. 46 (495 SE2d 308) (1997). Kirksey, who conducted the breath tests, testified that he was certified to operate the Intoxilyzer 5000 when he tested Banks. He also acknowledged that despite an apparent malfunction by the machine’s printer, causing some of the words to be scrambled, the machine appeared to be working properly when he performed the tests.

Although perhaps “marginal,” Evans v. State, 230 Ga. App. 728, 730 (497 SE2d 248) (1998) (physical precedent only), this testimony satisfied the State’s burden of proving “that the breath tests were performed on a machine operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order. As we have previously found, substantial statutory compliance with OCGA § 40-6-392 (a) (1) (A) can be established by circumstantial evidence arising from the testimony of the trained and certified individual who operated the machine and performed the test.” (Citations and punctuation omitted.) Gidey v. State, 228 Ga. App. 250, 252 (1) (491 SE2d 406) (1997). The printer’s malfunction did not affect the admissibility of the test results but went to the weight of these results. See Knapp v. State, 229 Ga. App. 175, 176 (2) (493 SE2d 583) (1997). The trial court did not err in admitting the breath test results.

2. Banks also contends Kirksey’s testimony that the results of the state administered tests were .121 and .116 constituted insufficient evidence to sustain a conviction under OCGA § 40-6-391 (a) (5). Stating that the term “alcohol concentration” is narrowly defined as “grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath” by OCGA § 40-1-1 (1), Banks argues that the State presented no evidence “to explain what M21’ and ‘.116’ meant; there was no testimony that the result was in grams of alcohol per 210 liters of breath; there was likewise no testimony that the result was in grams of alcohol per 100 milliliters of blood.”

We do not agree that the evidence was insufficient to convict Banks. On appeal, a defendant no longer enjoys the presumption of innocence, and we must view the evidence in the light most favorable to support the jury’s verdict. Williams v. State, 228 Ga. App. 698, 699 (1) (492 SE2d 708) (1997). In Harris v. State, 199 Ga. App. 457, 459 (5) (405 SE2d 501) (1991), the officer who performed the breath test testified that intoximeter “‘registered .18 grams percent’” without defining the meaning of “.18 grams percent.” We held that this evidence in combination with other evidence introduced at trial was sufficient to support the jury verdict. Id. Similarly, stipulated evidence that the defendant registered .20 on the Intoxilyzer 5000 was admitted into evidence in Rowell v. State, 229 Ga. App. 397 (494 SE2d 5) (1997). That opinion does not disclose that evidence was admitted explaining the meaning of “.20,” but we found the evidence sufficient to convict defendant.

In this case, Kirksey testified to the results of the Intoxilyzer evaluation and that the machine tested specifically for alcohol. The jury was charged concerning the statutory definitions of alcohol concentration and requirements for conviction. As in Harris and Rowell, construing the evidence in favor of the jury’s verdict, we conclude that the evidence was sufficient to authorize a rational trier of fact to convict Banks of driving with an unlawful alcohol concentration under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

On Motion for Reconsideration.

Banks has filed a motion for reconsideration arguing that reversal is required under State v. Kampplain, 223 Ga. App. 16 (477 SE2d 143) (1996) and State v. Hunter, 221 Ga. App. 837 (473 SE2d 192) (1996). He claims that “the only direct evidence of whether the breath testing machine was operating with all its components in good working order was the operator’s admission that ‘it was clear to him that at least one electronic or operating component of this machine was not in good working order.’ ” We do not agree with Banks that reversal is required.

Indeed, as stated in Kampplain and Hunter, the State is required to show that the machine on which blood tests were conducted was operated with all its electronic and operating parts properly attached and in good working order. Kampplain at 17; Hunter at 838. In both those cases, the evidence was undisputed that the “Taguchi cells” on the machines had been disabled or overridden or were not attached. Kampplain at 16; Hunter at 838. The evidence was thus undisputed that the machines were not in good working order, nor were all their parts properly attached.

But here, evidence was presented that the machine worked properly. On direct examination, Kirksey identified the printout of Banks’s test results taken from the machine and acknowledged there was something “funny” about the printout. He stated, “Apparently there is a printer malfunction and some of the words are scrambled.” But Kirksey also acknowledged that despite the malfunction that apparently caused the words to be “scrambled,” he could read the printout. He also responded negatively to the question of whether anything was “missing on that printout that you would normally see.” When asked whether he believed from his experience that the test results were accurate, he answered, “Yes. I feel like the machine was operating properly at the time.”

It is true, as argued by Banks, that on cross-examination, Kirksey responded affirmatively to the following question by defense counsel: “But after you saw the printout, it was clear to you that at least one electronic or operating component of this machine was not in good working order, would you agree?” But when read in the context of the remainder of Kirksey’s testimony that the machine was working properly and that he could read the test results, this acknowledgment did not automatically defeat the admissibility of the test results. Rather, the acknowledgment affected only the weight of these results. As stated in Knapp v. State, 229 Ga. App. 175, 176 (493 SE2d 583) (1997), Banks was entitled “to attack the test by attempting to show the machine was not in good working order and thus not operating properly when he was tested. . . . An accused may always introduce evidence of the possibility of error or circumstances that might have caused the machine to malfunction. Such evidence would relate to the weight rather than the admissibility of breathalyzer results.” (Citations and punctuation omitted.) Unlike Hunter and Kampplain, some evidence that the machine was working properly was presented by the State. Banks took full advantage of his opportunity to cross-examine Kirksey on that issue. It was for the jury to decide the weight to be given Kirksey’s testimony concerning the printer malfunction.

Decided August 7, 1998

Reconsideration denied December 9, 1998

Chestney Law Firm, Robert W. Chestney, Tracy M. Delgado, for appellant.

Ralph T. Bowden, Jr., Solicitor, Elaine W. Brooks, Stephanie Duncan-Brent, W. Cliff Howard, Assistant Solicitors, for appellee.

       We note that although the words were scrambled apparently due to the printer malfunction, Kirksey testified that he could read the results of the tests.


text:
    A98A1948.
    TAUBER et al. v. COMMUNITY CENTERS TWO, L.L.C.
    (509 SE2d 662)
   Judge Harold R. Banke.

Asserting three errors, Barry Tauber and Deborah Tauber appeal a default judgment and the denial of a related motion.

The underlying case arose after Community Centers Two, L.L.C. (“CCT”) filed a Proceeding Against Tenant Holding Over against its tenant, Atlanta Parteez, Inc. d/b/a Discount Party Warehouse, and the Taubers, the personal guarantors of payment on the lease. The complaint sought possession, past due rents, late charges and other charges. Although the corporate tenant, Atlanta Parteez, Inc. was served by “tack and mail” on October 2, it made no response and voluntarily left the premises. Service on the Taubers was not effectuated until January 16, when the Taubers’ counsel accepted service for them. The Taubers failed to respond within seven days of that service. On February 16, the trial court entered a default judgment for more than $102,000 against Atlanta Parteez, Inc. and the Taubers. On the same day the Taubers filed an answer. Subsequently, CCT filed a motion to strike the Taubers’ answer. The Taubers filed a consolidated motion which sought to open default, to set aside and vacate the default judgment, for new trial, and to dismiss the action.

At the motion hearing, the Taubers argued that dispossessory proceedings under OCGA § 44-7-51 pertain strictly to those in a landlord/tenant relationship. They asserted the trial court lacked subject matter jurisdiction over them because they were non-tenant guarantors. They claimed that they had thirty days, not seven, to answer. Ultimately, the court determined that the dispossessory action did pertain to the Taubers and found their answer untimely under OCGA § 44-7-51. The court rejected the Taubers’ motion in its entirety. Held:

1. The Taubers contend that the trial court erred in striking their answer. They claim that inasmuch as the underlying issue was a contractual matter, under the Civil Practice Act, they had 30 days to respond. They further argue that as non-tenants the trial court lacked subject matter jurisdiction over them. We disagree.

It is undisputed that the action was filed as a dispossessory proceeding. Under such action, a defendant has seven, not thirty, days to respond. OCGA § 44-7-51 (b). The record shows that the Taubers accepted service and did not answer within the requisite time. Had they timely answered, the Taubers could have challenged their liability or asserted other defenses. The Taubers failed to offer any authority, and we know of none, allowing additional time to respond to this statutory proceeding.

Even assuming the Taubers were not a proper party to the action, they failed to timely assert that defense. See Green v. Carver State Bank, 178 Ga. App. 798, 800 (4) (344 SE2d 507) (1986) (landlord and tenant are the only proper parties to dispossessory proceeding); Fitzgerald Trust Co. v. Shepard, 60 Ga. App. 674, 675-676 (2) (4 SE2d 689) (1939). See OCGA § 9-11-12 (b) (6).

Notwithstanding the Taubers’ claim to the contrary, the trial court did not lack subject matter jurisdiction. OCGA § 44-7-50 (a) explicitly confers a state court with jurisdiction over dispossessory actions. See Hill v. Kaminsky, 160 Ga. App. 630, 631 (287 SE2d 639) (1981) (subject matter jurisdiction pertains to general class of cases). Therefore, OCGA § 9-11-60 (d) (1) did not apply.

2. The Taubers contend that the trial court erred in granting default judgment. Due to their untimely answer, the case lurched into default. After the time for an answer passes, an action proceeds automatically into default “unless the time for filing the answer has been extended as provided by law.” OCGA § 9-11-55 (a). Here, no such extension applied as noted in Division 1.

3. The Taubers contend that the trial court erred in denying their motion to set aside and vacate default judgment, to open default, and to dismiss. We disagree.

“‘Generally, a default should be set aside where the'defendant acts with reasonable promptness and alleges a meritorious defense.’ [Cits.]” (Citation and punctuation omitted.) West v. Smith, 196 Ga. App. 69, 70 (395 SE2d 302) (1990). Here, no such meritorious defense was shown. See Stewart v. Turner, 229 Ga. App. 119, 121 (2) (493 SE2d 251) (1997). Under thé terms of the personal guaranty, the Taubers were unconditionally and absolutely responsible for all liability of Atlanta Parteez, Inc. under the lease. The personal guaranty expressly provides, “The liability of Guarantor is co-extensive with that of Tenant and also joint and several.” According to the guaranty, “[i]n the event of any legal action or proceeding brought by Landlord against Guarantor or Tenant arising out of the Lease or this Guaranty, Landlord shall be entitled to recover its reasonable attorneys’ fees and costs incurred, in such action.”

Decided November 19, 1998

Reconsideration denied December 9, 1998

Stephen J. Sasine, for appellants.

Slutzky, Wolfe & Bailey, Ray S. Smith III, for appellee.

Moreover, the Taubers failed to satisfy the requisite statutory grounds of “providential cause” or “excusable neglect,” or “proper case” necessary to open default. OCGA § 9-11-55 (b). Although OCGA § 9-11-55 (b) empowers a trial court with discretion to open a default, that discretion is not without limits. First Union Nat. Bank v. Floyd, 198 Ga. App. 99, 101 (2) (400 SE2d 393) (1990) (broad ground of “proper case” does not vest court with discretion to open a default for reasons which fall short of a reasonable excuse for failure to answer). In the absence of evidence showing the Taubers’ compliance with the conditions precedent set forth in OCGA § 9-11-55 (b), the trial court properly refused to open the default. Stewart, 229 Ga. App. at 121 (2).

Judgment affirmed.

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

       Barry and Deborah Tauber were president and secretary respectively of Atlanta Parteez, Inc. and its sole owners.

       Atlanta Parteez, Inc. did not appeal that judgment. See Housing Auth. &c. of Atlanta v. Hudson, 250 Ga. 109, 111 (296 SE2d 558) (1982) (“[A] judgment for rent allegedly due cannot be rendered upon default where service was by nail and mail”).