author: Smith, Judge.

text:
    A98A1242.
    GRIFFITH v. THE STATE.
    (506 SE2d 676)
   Smith, Judge.

In 1991, Minnie Butler Griffith was found guilty by a jury of possession of cocaine with intent to distribute. After the judgment of conviction and sentence were entered on the jury’s verdict, Griffith obtained new counsel, who filed a motion for new trial. No timely appeal was filed from the denial of that motion.

Griffith eventually filed a pro se motion for out-of-time appeal, which was granted in March 1994. Counsel was appointed for Griffith, and this lawyer filed an extraordinary motion for new trial in September 1994. After the denial of that motion, Griffith’s counsel filed a direct appeal to this Court. Because such appeals are required to be made by application for discretionary review, this Court dismissed the appeal. OCGA § 5-6-35 (a) (7).

Griffith then filed a pro se petition for writ of habeas corpus, alleging ineffectiveness of appellate counsel, which was granted in October 1996. New counsel was again appointed for Griffith, and that lawyer filed another motion for leave to file an out-of-time appeal, which was granted in February 1997. This lawyer then filed a motion for new trial, alleging ineffectiveness of trial counsel. After a hearing, the motion was denied in August 1997, and this appeal was timely filed.

Griffith raises two enumerations of error, contending that the evidence was insufficient to support her conviction and that her trial counsel was ineffective. We find no error and therefore affirm.

1. (a) Because it was not enumerated as error, we cannot consider Griffith’s argument that the trial court’s denial of her request to charge the lesser offense of possession of cocaine was error. Griffith may not enlarge her enumeration of errors by making arguments in the brief to include issues not raised in the enumeration of errors. Guest v. State, 229 Ga. App. 627, 628 (494 SE2d 523) (1997).

(b) The evidence presented at trial showed that officers with the Lowndes-Valdosta Drug Unit received information from a concerned citizen that Griffith was at a bar in Valdosta, seated in a particular booth along with several other persons, and that she was in possession of a quantity of crack cocaine. The officers entered the bar and saw Griffith in the specified booth, along with three others: Annie Burgess, Daisy West, and Eric Bines. The officers asked the occupants of the booth to step out and then conducted a search of the booth. One officer found a paper bag containing a ziplock bag and a matchbox “tucked in between the corner and the booth,” on the left side, where Griffith had been seated, and another officer found a matchbox containing crack cocaine “tucked on the right side of this booth.” All four occupants of the booth were arrested. A forensic chemist with the state crime lab testified that the brown paper bag also contained a matchbox that held crack cocaine weighing 6.4 grams, along with a plastic bag with cocaine weighing 0.2 gram. He testified that the other matchbox contained cocaine weighing 1.5 grams. Burgess, who had been sitting on the right side of the booth, subsequently admitted that the cocaine weighing 1.5 grams belonged to her. She pled guilty to possession of cocaine.

While in jail, Bines volunteered to give a statement to the officers, and he later testified at trial. He testified that Griffith and Burgess were seated in the booth while he was at the bar. When they called him over and asked him to have some of the chicken they had bought, he pulled a chair over to their booth. West arrived later and sat at the booth, informing everyone “the detectives were out there.” He then saw Burgess take out a matchbox and place it down in the booth on her right side; he also saw Griffith take a plastic bag from her pocket and place it in the booth on her left side.

One of the arresting officers testified that the matchbox found in the paper bag contained 39 pieces of crack cocaine, worth about $1,200 on the street. In the officer’s experience, this many pieces were not ordinarily for personal use but were carried by a dealer. The State also introduced evidence of a similar transaction, a 1988 guilty plea to a charge of sale of cocaine.

Griffith contends the State presented no direct evidence of her possession of the cocaine. She points out that at one point in his testimony Bines stated he did not actually see the plastic bag Griffith hid but saw her take “something” from her pocket and assumed it was the plastic bag later found where she was sitting. But on four other occasions during his testimony, Bines stated positively that he saw Griffith with the plastic bag. He stated, in fact, that he “definitely” saw Griffith with a plastic bag. Although his testimony was slightly confusing on this point, his credibility and the weight to be given his testimony were for the jury to determine. Goss v. State, 228 Ga. App. 411, 412 (1) (491 SE2d 859) (1997). “It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence.” (Citations and punctuation omitted.) Royal v. State, 217 Ga. App. 459, 460 (1) (458 SE2d 366) (1995). The jury obviously believed his testimony, and the evidence was sufficient to support Griffith’s conviction for possession of cocaine with intent to distribute under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Griffith contends her trial counsel was ineffective and states that with proper counsel the outcome of her trial could have been “markedly different.” She fails to support these contentions with anything except conclusory allegations regarding trial counsel’s failures. None of these allegations, however, is supported in her brief by specific citation to the record or legal authority.

Moreover, the trial court held a hearing on the issue of ineffectiveness of trial counsel and entered an order specifically finding that these allegations by Griffith had no merit. “The trial court’s findings on credibility matters will be upheld unless clearly erroneous, as will its ultimate determination whether the defendant received effective assistance of counsel. [Cit.]” Parker v. State, 226 Ga. App. 462, 466 (8) (a) (486 SE2d 687) (1997). Our review of the transcript of the hearing on the motion satisfies us that the trial court’s findings and its determination that trial counsel was not ineffective are not clearly erroneous. We therefore affirm the judgment.

Decided September 11, 1998.

William R. Folsom, for appellant.

J. David Miller, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Charges against West were later dismissed.


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A98A1383.
    SMITH v. LITTLE.
    (506 SE2d 675)
   Johnson, Presiding Judge.

Officer Kenneth Smith brings this interlocutory appeal challenging the trial court’s denial of his motion for summary judgment. For reasons which follow, we reverse.

This is a suit for intentional infliction of emotional distress and for negligence arising from the alleged improper conduct of a police officer during a traffic investigation. Smith, an officer with the Macon Police Department, conducted the investigation of a traffic incident involving a collision between a vehicle driven by Mae Belle Little and the vehicle of another driver, Lorine Barnes. Little alleges that Smith negligently conducted the accident investigation because he wilfully refused to question a man who witnessed the accident, failed to list the witness on the accident report, and wrongfully assigned fault for the accident to Little. Little contends that as a result she has sustained both general and special damages. In addition, she seeks punitive damages based upon Smith’s alleged wilful misconduct and conscious indifference to the consequence.

Smith moved for summary judgment on the grounds of official immunity. The trial court granted the motion as to Little’s claim of intentional infliction of emotional distress but denied Smith summary judgment on Little’s negligence claim.

1. Pretermitting the issues whether Smith breached a public duty and whether a breach of that duty was the proximate cause of any special damages to Little is the issue whether the trial court erred in failing to grant Smith’s motion for summary judgment, as to Little’s negligent claim, on the grounds of official immunity.

Decided September 11, 1998.

Groover & Childs, Duke R. Groover, for appellant.

F. Robert Raley, for appellee.

In holding that Smith was not entitled to summary judgment, the trial court determined that official immunity did not protect Smith because a genuine issue of material fact existed as to whether his conduct during the accident investigation was wilful or wanton. In Georgia, however, Smith may be held liable for the negligent performance of official functions in conducting and reporting the accident investigation only if these acts were committed “with actual malice or with actual intent to cause injury.” Ga. Const. of 1983, as amended, Art. I, Sec. II, Par. IX. Actual malice in this context is “express malice or malice in fact.” (Citation and punctuation omitted.) Merrow v. Hawkins, 266 Ga. 390, 392 (2) (467 SE2d 336) (1996). The trial court should have determined whether Smith’s actions during the traffic investigation met the actual malice standard announced in Merrow. Id. When a trial court rests its denial of summary judgment on the wrong legal theory, such denial constitutes reversible error. Sumner v. Dept. of Human Resources, 225 Ga. App. 91, 93-94 (2) (483 SE2d 602) (1997); Huff v. Valentine, 217 Ga. App. 310, 311 (1) (457 SE2d 249) (1995).

The record before us contains absolutely no evidence showing or even tending to show actual malice. Because the trial court erred by applying an incorrect legal standard when it analyzed Little’s negligence claim, Smith is entitled to judgment as a matter of law as to that claim.

2. In view of our holding in Division 1, we need not reach Smith’s other enumeration of error.

The trial court’s ruling denying Smith’s motion for summary judgment is reversed and the case remanded with direction that the trial court enter judgment in favor of Smith as to Little’s negligence claim.

Judgment reversed and case remanded with direction.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.


author: Eldridge, Judge.

text:
    A98A0861.
    CARRADINE v. THE STATE.
    (506 SE2d 688)
   Eldridge, Judge.

A Turner County jury found Arthur Wayne Carradine guilty of child molestation. Without challenging the sufficiency of the evidence against him, Carradine alleges one error of law, i.e., that “[t]he trial court erred in overruling appellant’s objection to the State’s asking a question which called for a conclusion by a witness, a conclusion which went to the ultimate issue for the jury.” We affirm Carradine’s conviction.

“When testimony is tendered an objection must be made, affording the court opportunity to rule upon the admissibility of the testimony upon the grounds then urged and in the context of the matter as it then appears, and failure to make a timely objection to testimony when it is offered results in a waiver of any objection that might have been urged. All evidence is admitted as of course unless a valid ground of objection is interposed, the burden being upon the objecting party to state at the time some specific reason why it should not be admitted” (Citations and punctuation omitted; emphasis supplied.) Reid v. State, 129 Ga. App. 660, 663 (200 SE2d 456) (1973); Hunter v. State, 202 Ga. App. 195, 197 (413 SE2d 526) (1991).

Here, the prosecutor asked a witness from the Department of Family & Children Services (“DFACS”), “Has she [the victim] ever lied to you before?” The DFACS worker replied, “No.” Thereafter, the defense attorney stated, “Objection, Your Honor. It’s already answered, but it obviously calls for a conclusion of the witness and we ask that it be stricken.” The trial court overruled the objection as stated.

At trial, the defense attorney did not object because the witness’ answer invaded the province of the jury regarding the credibility of the victim. Nor did the defense attorney object because the answer went to the “ultimate issue of fact.” The trial judge was not called to rule upon any of the issues which now form the bases for the instant claim of error.

“It is well settled that no issue is presented for appellate review regarding a question of evidence admissibility as to which the trial court was not called to rule upon at trial.” Simms v. State, 223 Ga. App. 330, 332 (1) (477 SE2d 628) (1996); see also Norman v. State, 197 Ga. App. 333 (398 SE2d 395) (1990).

Judgment affirmed.

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

Decided September 14, 1998.

Noel G. Perry, for appellant.

C. Paul Bowden, District Attorney, for appellee.

       Carradine’s objection was insufficient even to preserve a claim of error as to the “conclusory” nature of the DFACS worker’s testimony. “[A]s a lay witness, [the DFACS worker] could express [an] opinion so long as [s]he testified to sufficient facts to form the basis thereof.” Hestley v. State, 216 Ga. App. 573, 576 (2) (455 SE2d 333) (1995); OCGA § 24-9-65; O’Kelley v. State, 175 Ga. App. 503, 507 (333 SE2d 838) (1985); see also Johnson v. Knebel, 267 Ga. 853, 856 (2) (485 SE2d 451) (1997). Accordingly, since conclusion testimony can be proper, objecting only because testimony “calls for a conclusion” presents nothing for review.


author: Judge Harold R. Banke.

text:
    A98A1109.
    MOORE v. THE STATE.
    (506 SE2d 685)
   Judge Harold R. Banke.

Alfonzo Moore was convicted of terroristic threats, felony obstruction of a law enforcement officer, interference with government property, driving under the influence, reckless driving, driving with a suspended license, failure to provide proof of insurance, lane violations under OCGA § 40-6-48, and two counts of failure to use a turn signal. He enumerates three errors on appeal.

This case arose dining the early morning hours when the arresting officer received a radio dispatch that shots had been fired in his vicinity. The only vehicle he observed was a white pickup truck driving through the area. The officer’s investigation intensified after he received a report of additional shots and a pedestrian informed him that the shots had been fired from a white Ford pickup truck. When the officer spotted the white pickup lane weaving across the road and turning without signaling, he turned on his lights and siren. At that, the pickup accelerated, made a second turn without signaling, veered onto the wrong side of the road, and pulled up into a nearby driveway. The officer followed the truck into the driveway and ordered the approaching driver and passenger back into the pickup. Instead of obeying, the passenger fled and Moore, the driver, continued toward the officer, yelling profanity. When the officer reiterated his order, Moore again ignored him.

At that point, the officer told Moore he was under arrest and grabbed him. Moore flailed, swung at the officer and pushed him. When pepper spray did not subdue Moore, the officer radioed for backup, which arrived as Moore was fleeing into his residence. Eventually four officers managed to handcuff Moore and force him into the back of a patrol car. Moore continued to swear and threatened to kill the arresting officer. Experiencing the effects of the pepper spray, Moore asked for air, and an officer cracked a window and wiped secretions from Moore’s face. Moore then kicked out the cruiser’s left rear window. Moore was unable to produce a driver’s license or insurance card and refused to take a breathalyzer test. Held:

1. Moore maintains the trial court’s refusal to give a justification instruction relating to the interference with government property charge requires reversal. Guest v. State, 229 Ga. App. 627, 628 (1) (494 SE2d 523) (1997) (appellants may not enlarge their enumerations through their briefs). We agree.

The requested charge stated, “If you find that the defendant’s conduct was justified, this is a defense for prosecution for any crime based on that conduct.” This language tracks the pattern charge and OCGA § 16-3-20, which sets forth the circumstances where the defense of justification can be claimed. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 43 (2nd ed. 1991). It is undisputed Moore had high blood pressure and allergies and the pepper spray caused Moore acute respiratory distress. While seated in the cruiser he screamed for air, gagged, and bodily secretions streamed down his face. Although an officer cracked one window a few inches, this brought Moore no relief, and he kicked out the window to ease his symptoms. See OCGA § 16-3-20 (5).

Because Moore presented no other defense to this charge and the evidence supported it, he was entitled to the instruction as it related to the interference with government property charge. Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991). Having reviewed the instructions as a whole, we cannot say that they fairly presented this defense to the jury. Thus, the conviction on Count 3 must be reversed. Jones v. State, 220 Ga. App. 784, 785-786 (470 SE2d 326) (1996).

2. The trial court properly denied Moore’s motion for directed verdict of acquittal on the no proof of insurance charge. Notwithstanding Moore’s contention to the contrary, OCGA § 40-6-10 does not require that an officer “request” an insurance card in order to prosecute a driver for no proof of insurance. That statute simply requires owners and operators of motor vehicles to “keep proof or evidence of required minimum insurance coverage in the vehicle at all times.” OCGA § 40-6-10 (a) (1). The record shows that no such proof was found in Moore’s pickup truck.

3. The evidence, when viewed in the light most favorable to the verdict, was sufficient to permit the jury to find all the essential elements of each crime. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). In analyzing the sufficiency of the evidence, this Court may not reweigh the evidence or determine witness credibility. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994).

(a) The arresting officer testified that Moore threatened to find him and kill him. OCGA § 16-11-37 (a). Several of the back-up officers corroborated this evidence with testimony of Moore’s threat. This evidence is sufficient to support the terroristic threats conviction. See Sampson v. State, 209 Ga. App. 213, 215 (1) (433 SE2d 136) (1993).

(b) After the officer lawfully placed Moore under arrest and attempted to seize him, Moore flailed, swung at the officer and pushed him. This evidence fully supported the verdict on the felony obstruction charge. See Miller v. State, 226 Ga. App. 133, 134 (2) (486 SE2d 368) (1997).

Decided September 14, 1998.

Clark & Rogers, Douglas C. Rogers, for appellant.

J. David Miller, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

(c) The evidence was likewise sufficient to establish a violation of OCGA § 40-6-391 (a) (1). While subduing Moore, the arresting officer noticed Moore’s slurred speech, red, glassy eyes, his loudness and boisterousness, and the odor of an alcoholic beverage. The officer also testified that he believed Moore was driving under the influence of alcohol to a point that it was less safe to drive. Walker v. State, 230 Ga. App. 376, 377 (497 SE2d 12) (1998). Notwithstanding Moore’s contention to the contrary, no documentary evidence of intoxication was required. See id.

(d) We also find the arresting officer’s testimony that he observed Moore weave across the road was sufficient to sustain the conviction for lane violations under OCGA § 40-6-48. The evidence that Moore drove after consuming alcohol to the extent he was less safe to drive, swerved and veered onto the wrong side of the road due to the excessive speed in which he turned the truck and accelerated after the officer activated his lights and siren showed a sufficient disregard for the safety of the passenger and the arresting officer to support the reckless driving conviction. See Duggan v. State, 225 Ga. App. 291, 294 (1) (483 SE2d 373) (1997); State v. Wright, 221 Ga. App. 202, 206 (3) (470 SE2d 916) (1996); Hill v. State, 207 Ga. App. 65, 66 (1) (426 SE2d 915) (1993). We find, however, that the evidence was insufficient to sustain the convictions for failure to signal due to the lack of evidence that a turn signal was required to alert other drivers in the area to Moore’s turn. OCGA § 40-6-123 (a), (b); Bowers v. State, 221 Ga. App. 886, 887 (473 SE2d 201) (1996) (physical precedent only).

Judgments affirmed in part and reversed in part.

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

       The officer had probable cause to arrest Moore for either the traffic violations or misdemeanor obstruction. Compare Woodward v. State, 219 Ga. App. 329, 330 (1) (465 SE2d 511) (1995).


text:
    A98A1172.
    DIGGS v. THE STATE.
    (506 SE2d 683)
   Judge Harold R. Banke.

Michael Diggs was convicted of trafficking in cocaine, possession of marijuana with intent to distribute and possession of more than one ounce of marijuana. In his sole enumeration of error, he challenges the sufficiency of the evidence.

This case arose after Diggs’ mother-in-law consented to a search of her residence. In a locked shed behind her house, law enforcement officers discovered a camcorder bag containing bags of marijuana and a set of electronic scales. An expert subsequently identified two latent fingerprints found on the nine-volt battery in the scales as Diggs’. The officers found more marijuana and two bricks of cocaine in Diggs’ mother-in-law’s bedroom.

The next day, the officers obtained a warrant and searched Diggs’ home. They found a small bag of marijuana near the stoop of his back door. In some woods behind the house, they discovered a small green tote bag holding 15 bags of marijuana. Hanging in a nearby tree, they located a plastic grocery bag containing marijuana. Inside Diggs’ house the officers found a sheet of paper with some notes indicating ounces, pounds, names and currency. They also discovered some luggage similar to that found at the mother-in-law’s house, including a camcorder bag like the one containing marijuana, but no drugs.

When the police entered Diggs’ residence, they set off the alarm. During the search, Mrs. Diggs, Diggs’ wife and co-defendant, arrived home to check on it. Shortly after the officers explained what they were doing and arrested her, Mrs. Diggs predicted that her fingerprints would be on the cocaine discovered at her mother’s home. No identifiable prints were found.

Days later, the officers arrested Diggs. At the time, he claimed he had been out of town for several weeks. Held:

Diggs maintains that the evidence was insufficient to sustain his convictions. We agree. The evidence, which was entirely circumstantial, simply does not exclude every other hypothesis save guilt. Savage v. State, 229 Ga. App. 560, 563 (494 SE2d 359) (1997).

No direct evidence ties Diggs to the drugs found at his mother-in-law’s house or the marijuana found outside his own. But the State asserts that the following circumstantial evidence is sufficient to support Diggs’ convictions: (1) Diggs’ two fingerprints found on the nine-volt battery in the scales in the marijuana-filled camcorder bag in Diggs’ mother-in-law’s shed; (2) Diggs’ familial relationship with his mother-in-law; (3) his wife’s admission that her prints could be on the cocaine; (4) the paper found at the Diggs’ residence referring to ounces, pounds and currency; (5) Diggs’ attempt to have his brother take responsibility for the drugs; (6) Diggs’ deceptive claim that he had been out of town when the bust occurred; and (7) the camcorder bag found behind Diggs’ house matched the bag containing marijuana found in Diggs’ mother-in-law’s shed.

To warrant a conviction based solely on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis. Savage, 229 Ga. App. at 563. Having read and considered the record, we cannot say the evidence presented satisfied that standard. The cocaine was found in Diggs’ mother-in-law’s bedroom. The State presented no evidence connecting Diggs to that room, to residence in the household, or to the contraband. See Love v. State, 227 Ga. App. 772, 773 (490 SE2d 527) (1997). Absent a showing that Diggs exercised dominion or control over the cocaine, we must reverse the trafficking conviction. Moody v. State, 232 Ga. App. 499, 501 (1) (502 SE2d 323) (1998).

The fingerprint evidence makes review of the distribution conviction a closer case. However, this circumstantial evidence is the only proof tying Diggs to the marijuana found in his mother-in-law’s shed. This marijuana was not found on Diggs’ own property or in proximity to his person, no prior transactions were admitted, and no contraband, paraphernalia or large amounts of cash were, found in his residence or under his control. See Jordan v. State, 225 Ga. App. 424, 425 (484 SE2d 60) (1997). With nothing tying Diggs to this contraband besides two fingerprints on a battery which could have been left in a situation unrelated to drugs, we cannot say that the evidence is sufficient to support the conviction. Savage, 229 Ga. App. at 563. Although deciding whether the evidence excludes every other reasonable hypothesis except guilt is generally a jury question, the verdict must not blind us when a reasonable hypothesis of innocence appears from the evidence or lack of it. Jordan, 225 Ga. App. at 426. When, as here, the evidence does not meet that standard, we must declare such as a matter of law. Id.

It is elementary that mere spatial proximity to contraband, without more, will not support a finding of constructive possession. Francis v. State, 231 Ga. App. 112, 113 (1) (497 SE2d 827) (1998). Thus, we must conclude that the evidence is insufficient to sustain the possession charge. It is undisputed that over 12 ounces of marijuana was found in the woods behind Diggs’ home. But this unfenced space was being cleared for construction, and according to the lead investigator’s testimony, many people had unlimited access to it. Although an investigator testified that footprints led from Diggs’ patio to the tote bag containing marijuana, the State presented no testimony linking those footprints to Diggs. In fact, a police witness admitted that no measurements or tests were performed on the footprints, and the record showed that Diggs lived at that location with his wife and, until recently, a man named James Moore who was charged with a drug violation in another county. Further, the State presented no evidence showing that Diggs wrote, controlled or even handled the memo referring to ounces, pounds, names and currency found in his home. Nor did the State offer proof that tied Diggs to the bag of marijuana found in the unfenced patio area behind his house. Absent some evidence actually connecting Diggs to the contraband, we must reverse. Id.; Greene v. State, 230 Ga. App. 155, 156 (2) (495 SE2d 634) (1998).

Decided September 14, 1998.

Ronald E. Harrison II, for appellant.

Stephen D. Kelley, District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.

Judgment reversed.

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

       The record shows that the mother-in-law had the key and unlocked the door for the investigators.


text:
    A98A1297.
    EVANS v. THE STATE.
    (506 SE2d 681)
   Judge Harold R. Banke.

Katherine E. Evans appeals her convictions for driving under the influence of alcohol, reckless driving, and making an improper turn. She contends the trial court erred by admitting evidence of field sobriety tests she performed and by admitting statements she made because she was not warned of her Miranda rights. She also contends the trial court erred by allowing hearsay to be introduced in evidence. Held:

1. Because of Evans’ motion to exclude the results of her field sobriety tests and statements, the trial court held an evidentiary hearing on whether Evans had been taken into custody so that such warnings would be required. At the hearing, no witness testified that Evans was formally taken into custody before the field sobriety tests or statements. Both Evans and a passenger in her car testified that the first officer on the scene of the accident spoke with Evans briefly and then asked her to remain until another police officer spoke with her. This first officer, however, did retain Evans’ driver’s license, registration, and proof of insurance.

The second officer testified that after the first officer gave him Evans’ driver’s license, he told her he wanted to conduct some field sobriety tests, but she did not have to take them. After giving Evans the horizontal gaze nystagmus test, the results led the officer to believe that she was impaired. Consequently, the officer read Evans’ her implied consent rights and placed her under arrest.

Evans and her passenger merely testified that they waited in her vehicle until the first officer arrived. This officer took and retained her license, registration, and proof of insurance, spoke briefly with Evans, and then asked her to wait until another officer came. Evans’ car was inoperable. Evans further testified she did not believe that she would be allowed to leave.

After the hearing, the trial court found Evans was operating a car and had a collision, the first officer on the scene conducted an investigation, spoke briefly with Evans, and then asked her to wait because he had called another officer to assist with the investigation. The trial court also found that as Evans was in a collision on a busy street that resulted in injuries to the other party, the investigating officer should have a reasonable time in which to conduct his investigation and that he could ask the parties involved to remain on the scene.

Under these circumstances, the trial court found that Evans was not in custody during the field sobriety tests. Therefore, he denied the motion. We agree. Held:

“Only in-custody statements by the accused give rise to the issue of voluntariness and the Miranda warnings. The test for determining whether a person is in custody at a traffic stop is if a reasonable person in the suspect’s position would have thought the detention would not be temporary. Police officers at the scene of a traffic stop may conduct a general on-the-scene investigation, which may even require that persons be temporarily detained, without such being classified as custodial interrogation.” (Citation and punctuation omitted.) Tibbs v. State, 207 Ga. App. 273 (1) (427 SE2d 603) (1993). “The test for determining whether a person is ‘in custody’ at a traffic stop is if a reasonable person in the suspect’s position would have thought the detention would not be temporary. Berkemer v. McCarty, 468 U. S. 420, 442 (104 SC 3138, 82 LE2d 317) (1984).” Hughes v. State, 259 Ga. 227, 228 (1) (378 SE2d 853) (1989). Miranda warnings are not required to precede a request to perform field sobriety tests unless the person is “in custody.” Price v. State, 269 Ga. 222, 225 (3) (498 SE2d 262) (1998); State v. Dible, 232 Ga. App. 73, 74 (502 SE2d 245) (1998).

As the trial court’s findings of fact are supported by evidence, this enumeration of error is without merit. The evidence supports the conclusion that no reasonable person in Evans’ position would have believed that their detention was not to be temporary. See State v. Pastorini, 222 Ga. App. 316, 317 (1) (474 SE2d 122) (1996). Evans was involved in an accident that resulted in injuries to another person, her car had to be towed from the scene, and the first officer was still on the scene when the second officer arrived. This evidence supports the trial court’s conclusion that Evans was lawfully detained during the investigation of the accident. Trudewind v. State, 224 Ga. App. 223, 224 (1) (480 SE2d 211) (1997); see Dible, 232 Ga. App. at 74.

Decided September 14, 1998.

William C. Head, for appellant.

June D. Green, Solicitor, James M. Miller, Assistant Solicitor, for appellee.

2. Pretermitting whether the trial court erred by allowing the second police officer to testify that “[the first officer] asked me to assist him in a traffic accident investigation where he believed that he had a D.U.I. driver,” counsel’s failure to object to the police officer’s testimony waived the issue. Basu v. State, 228 Ga. App. 591, 593 (1) (492 SE2d 329) (1997). In any event, the error, if any, was harmless. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

Judgment affirmed.

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


author: Pope, Presiding Judge.

text:
    A98A0815.
    MITCHELL v. LOWE’S HOME CENTERS, INC.
    (506 SE2d 381)
   Pope, Presiding Judge.

Appellant Sara Mitchell sued appellee Lowe’s Home Centers, Inc., for false imprisonment and tortious misconduct as the result of what she claims was an involuntary detention. The trial court granted Lowe’s motion for summary judgment, and Mitchell appeals.

Mitchell argues that summary judgment was improper because triable issues of fact remain when the evidence is viewed in her favor. “This Court applies a de novo standard of review to a grant of summary judgment, and the evidence must be viewed in the light most favorable to the nonmoving party. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).” Griffin v. Travelers Ins. Co., 230 Ga. App. 665 (497 SE2d 257) (1998). This matter arose from Mitchell’s purchase of tiles at Lowe’s approximately one month prior to the alleged detention. Mitchell, a 32-year-old woman, was authorized to use a Lowe’s credit card on an account held in the name of her mother, Florence Scott. Lowe’s issued Mitchell a credit card with her name and her mother’s account number. On the day she purchased the tiles, Mitchell forgot to bring the card with her, so she went to the customer service desk, gave her name and asked for her account number. The customer service representative, who did not ask to see any form of identification, mistakenly gave Mitchell the account number of a different Sara Mitchell, a 64-year-old woman who lived in another state, and Mitchell unwittingly charged the tiles to the wrong account.

Mitchell later returned to the store to exchange the tiles she had purchased for other merchandise, but was unable to locate the merchandise she wanted. She then went to the customer service desk to return the tiles. The Lowe’s employee involved became concerned because the 32-year-old Mitchell did not fit the information on the account profile of the 64-year-old Sara Mitchell and alerted the store manager. Mitchell testified that she was told that there was some problem with the merchandise that she was trying to return, and she accompanied the manager to his office at the manager’s request.

While Mitchell was in the manager’s office, an off-duty Chatham County police officer employed by Lowe’s was outside the door. Mitchell testified on deposition that after showing her driver’s license and checkbook to the manager and the officer, she was accused of presenting “bogus” documents. She further testified that the manager told her that the store had lost thousands of dollars in inventory through theft, and that they needed to get this matter straightened out. Mitchell contends that after she tried to explain how she obtained the account number to charge the tiles, the manager gave the impression that he did not believe her. While she was in the office, the manager called the older Sara Mitchell to discuss the situation, saying that there was someone in the store attempting to use her account and claiming to be Sara Mitchell. The matter was resolved after a call to the Lowe’s Credit Card Center, and the charges to the elder Sara Mitchell’s account were transferred to Florence Scott’s account. After the confusion between the two accounts was cleared up, Mitchell left the manager’s office. Mitchell testified that the whole matter took one to two hours to resolve, while the Lowe’s manager recalled that the matter took approximately one half-hour.

The trial court granted Lowe’s motion for summary judgment finding as a matter of law that the company’s actions were reasonable under the circumstances.

1. Lowe’s argued that it was entitled to summary judgment on Mitchell’s false imprisonment claim because no detention occurred. “ ‘The essential elements of the cause of action for false imprisonment are a detention of the person of another for any length of time, and the unlawfulness of that detention. OCGA § 51-7-20. A detention need not consist of physical restraint, but may arise out of words, acts, gestures, or the like, which induce a reasonable apprehension that force will be used if plaintiff does not submit; and it is sufficient if they operate upon the will of the person threatened, and result in a reasonable fear of personal difficulty or personal injuries. It is essential, however, that the restraint be against the plaintiffs will; and if he agrees of his own free choice to surrender his freedom of motion, as by remaining in a room or accompanying the defendant voluntarily, to clear himself of suspicion or to accommodate the desires of another, rather than yielding to the constraint of a threat, then there is no imprisonment.’ ” (Citations and punctuation omitted.) Kemp v. Rouse-Atlanta, Inc., 207 Ga. App. 876, 879 (2) (429 SE2d 264) (1993). A person need not make an effort to escape or to resist until an application of open force results, thereby risking possible physical injury, before he can recover; however, an actual detention must have occurred whether caused by force or fear. [Cit.]” Williams v. Food Lion, 213 Ga. App. 865 (2) (446 SE2d 221) (1994).

While it appears that Mitchell accompanied the Lowe’s manager to his office voluntarily, the record contains sufficient evidence to present a jury question as to whether the manager’s comments and actions, the time it took to resolve the matter and the presence of the policeman resulted in a reasonable fear on the part of Mitchell that she was not free to leave the manager’s office without experiencing personal difficulties.

2. Even if there were a detention, however, Lowe’s contends that the detention was lawful. We agree. “[T]he defense of a warrantless arrest in a false imprisonment case must show that the arrest was made on probable cause and pursuant to the appropriate exigent circumstances. [Cit.]” Arbee v. Collins, 219 Ga. App. 63, 66 (2) (463 SE2d 922) (1995). The record shows the existence of both probable cause and exigent circumstances, which justified a detention of Mitchell.

A lack of probable cause exists where a reasonable man is satisfied that “the accuser had no ground for proceeding but his desire to injure the accused.” OCGA § 51-7-43. This Code section also provides that the lack of probable cause is a question for the jury, “under the direction of the court.” Id. But “[w]hat facts and circumstances amount to probable cause is a pure question of law.” (Punctuation omitted; emphasis in original.) Brown v. Winn-Dixie Atlanta, 194 Ga. App. 130, 132 (389 SE2d 530) (1989). There was no evidence that Lowe’s employees acted solely out of a desire to harm Mitchell. To the contrary, the record, including Mitchell’s testimony, demonstrates that Lowe’s employees were motivated by a desire to protect store property. Therefore, a finding of probable cause as a matter of law is appropriate. See Amason v. Kroger Co., 204 Ga. App. 695, 697-698 (2) (420 SE2d 314) (1992).

Because any detention of Mitchell was effected by private persons, the exigent circumstances outlined in OCGA § 17-4-60 apply. That statute provides that a private person may detain “an offender if the offense is committed in his presence or within his immediate knowledge.” OCGA § 17-4-60. Although further investigation revealed that the matter had been the result of a mix-up, at the time, Mitchell appeared to be using the credit card of another person without authorization, and thus Lowe’s employees had reason to believe that a crime was being committed in their presence. Under these circumstances, Lowe’s was entitled to conduct further investigation into the matter. And however long the alleged detention lasted, Mitchell testified that the Lowe’s manager spent the time calling the other Sara Mitchell and Lowe’s Credit Card Center in an effort to resolve the matter. Mitchell also acknowledged the manager’s ultimate decision to transfer the charges from the elder Sara Mitchell’s account to Florence Scott’s account was appropriate. Lowe’s detention of Mitchell, if any, was therefore lawful.

A defendant’s burden on summary judgment is to demonstrate that there is no evidence to support at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. at 491. We find that Lowe’s has met this burden and that Lowe’s was entitled to summary judgment on Mitchell’s claim of false imprisonment. See Haile v. Pittman, 194 Ga. App. 105, 106 (2) (389 SE2d 564) (1989); Crowe v. J C. Penney, 177 Ga. App. 586, 588 (2) (340 SE2d 192) (1986).

3. Summary judgment was also proper on Mitchell’s claim of tortious conduct. In her amended complaint asserting this claim Mitchell alleges that Lowe’s employees “falsely accused her of various crimes, including theft, credit card fraud and possession and distribution of a false driver’s license and checking account book.” However, on deposition she admitted that no one had accused her of a crime or threatened to arrest her, but rather that she “just had this feeling.” Although Mitchell testified that the off-duty policeman did say that her driver’s license and checking account were “bogus,” she acknowledged that her weight had changed since her driver’s license picture had been taken three years earlier, and that the officer thought that the picture did not look like her. Although Lowe’s employees perhaps could have been more tactful in handling this situation, the conduct alleged does not rise to the level of “unprovoked and unjustifiable opprobrious and insulting and abusive words by [an employee] tending to humiliate, mortify, and wound the feelings of the customer. [Cits.]” (Punctuation omitted.) Doe v. Village of St. Joseph, 202 Ga. App. 614, 617 (3) (415 SE2d 56) (1992). “While it is certainly true that the owner of a business has a duty to protect its customers from injury caused by the tortious misconduct of its employees, the undisputed evidence refutes the existence of such misconduct in this case.” (Citations and punctuation omitted.) Taylor v. Super Discount Market, 212 Ga. App. 155, 157 (441 SE2d 433) (1994).

Decided August 17, 1998

Reconsideration denied September 15, 1998

Jones, Boykin, Stacy & Associates, Noble L. Boykin, Jr., Gilbert L. Stacy, for appellant.

Forbes & Bowman, Morton G. Forbes, Johnny A. Foster, for appellee.

Judgment affirmed.

Beasley and Ruffin, JJ., concur.

       Even though an off-duty policeman was present at the time, he was acting in his capacity as a private citizen under these circumstances. See Edge v. State, 226 Ga. App. 559, 562 (2) (487 SE2d 117) (1997); Wells v. State, 206 Ga. App. 513, 515 (1) (426 SE2d 231) (1992).

       While Lowe’s also claimed that the actions of its employees were protected by OCGA § 51-7-60, which allows a shopkeeper to detain someone for suspicion of shoplifting under certain circumstances, “[t]he statute makes no reference to the detention of people for reasons other than suspected shoplifting, and being in derogation of common law, it must be strictly construed.” (Citations omitted.) Taylor v. Super Discount Market, 212 Ga. App. 155, 156 (1) (441 SE2d 433) (1994). We find that the statute does not apply in this instance where Mitchell could not have been suspected of shoplifting as defined in OCGA § 16-8-14 at the time of the events in question — in fact, she was in the process of returning merchandise to the store — although she may have been suspected of some other offense such as credit card fraud (OCGA § 16-9-33) or theft (OCGA § 16-8-3). See Taylor v. Super Discount Market, 212 Ga. App. at 156 (refusing to apply the statute where a customer was suspected of passing counterfeit money); Hampton v. Norred & Assoc., 216 Ga. App. 367, 369 (454 SE2d 222) (1995) (refusing to apply the statute where employee was suspected of stealing money).


author: Ruffin, Judge.

text:
    A98A0854.
    THE STATE v. DUKES et al.
    (507 SE2d 147)
   Ruffin, Judge.

The State appeals from the trial court’s order granting Edward Dukes’ and George Sanders’ motion to suppress evidence. Police discovered this evidence while searching a mobile home following Dukes’ arrest for an alleged parole violation. For reasons which follow, we affirm.

The record shows that police officers went to a residence on Horton Street to arrest Edward Dukes pursuant to a warrant issued when Dukes violated the conditions of his parole. After arriving, the officers saw a person they thought to be Dukes leave the residence and enter a car. They also observed Sanders get into a moving van. Both Dukes and Sanders drove to a mobile home on Addison Drive, followed by the officers in an unmarked van.

Dukes and Sanders were already inside the mobile home when the officers knocked on the closed, outer screen door in the front of the mobile home. The solid front door to the mobile home was open, allowing the officers to see through the screen door into the mobile home. The officers knocked on the door and Dukes told them to “come in.” When the officers entered the mobile home, one of them told Dukes that they had a warrant for his arrest and instantly arrested him.

While searching Dukes incident to his arrest, the officers discovered a candy bottle containing 59 rocks of cocaine in his right rear pocket and “a wad of cash” in his left front pocket. According to the officers, they handcuffed both Dukes and Sanders after searching Dukes. The officers explained that they handcuffed Sanders for their safety and to detain him for the purpose of investigating the drugs and cash found on Dukes. Although the officers did not consider Sanders to be under arrest at that time, they acknowledged that he was being detained and was not free to leave.

After handcuffing Dukes, Officer Robert Curott requested and obtained permission from him to search the residence. According to the officers, Sanders told Officer Frank Farr that he lived in the mobile home as the roommate of Dukes. Officer Farr testified that Sanders also gave permission for the officers to search the residence. According to Officer Farr, Sanders told him later, during the search of the mobile home, that he was just moving into the trailer. The search of the mobile home revealed a paper bag containing ten pieces of suspected crack cocaine in the dryer lint trap. The officers also found “some type of cell phone or telecommunications thing with Mr. Dukes’s name on it and the Addison Drive address.”

Sanders testified and contradicted the police officers’ version of events. According to Sanders, he never gave his consent for the officers to search the trailer. He also testified that he told Officer Curott that he did not yet live in the trailer and that he was in the process of moving in to rent it from Dukes. Sanders further claimed he was not handcuffed by the officers until after the search of the home revealed the crack cocaine found in the dryer.

Sanders moved to suppress evidence obtained during the search of the mobile home. Although there is no evidence that Dukes joined in this motion, the trial court and the parties acted as though both defendants had filed a motion to suppress. In an order entered on March 13, 1997, the trial court denied Dukes’ and Sanders’ motion to suppress.

The trial of the case resulted in a mistrial due to violations of the trial court’s rulings on motions in limine. Sanders and Dukes subsequently filed an Amended and Renewed Motion to Suppress on April 24, 1997. Sanders joined in this motion. In a June 18, 1997 hearing, the trial judge explained that he was granting a motion to suppress evidence found in Dukes’ residence in a separate case, Case No. 96-CR-340X. Dukes asserted in this hearing that the evidence obtained from his residence in Case No. 96-CR-340X resulted in the issuance of the parole warrant for his arrest. As a result, Dukes argued, the parole warrant was improperly issued and the evidence found after Dukes was arrested pursuant to that warrant must be excluded.

On September 15, 1997, the trial court’s order granting the motion to suppress of both defendants in this case was filed with the clerk’s office. In this order, the trial judge stated “it appearing that the original parole warrant, and therefore the subsequent search, were invalid, the Court hereby GRANTS the Motion to Suppress . . . as to both defendants under the authority of Boatright v. State, 225 Ga. App. 181 [(483 SE2d 659)] (1997) and OCGA § 17-5-30.”

1. The State contends that the trial court erred when it granted defendants’ renewed motion to suppress after the expiration of the term of court in which defendants’ original motion to suppress was denied. In support of this contention, the state relies upon the well-established rule “that the trial court may set aside its own order ex mero moto [cits.], so long as the order is vacated within the term. [Cits.]” Chastain v. State, 158 Ga. App. 654, 655 (281 SE2d 627) (1981).

We find no merit in this contention. The record shows that the trial court did not vacate its original order denying defendants’ first motion to suppress; instead, the trial court granted a subsequent, renewed motion to suppress. Moreover, even if we were to assume, without deciding, that this general rule applies to an order denying a motion to suppress, this case falls within an exception to application of the rule.

“[A] trial court [can] rescind its order . . . where proceedings to vacate such order [are] begun during the term it was entered (the most important exception to the end of the term rule).” Pledger v. State, 193 Ga. App. 588, 589 (2) (388 SE2d 425) (1989). The terms of court for Barrow County commence on the last Monday in January, the first and second Mondays in February, May and November, and the second and third Mondays in August. OCGA § 15-6-3 (32) (B). In this case, both the second motion to suppress and trial court’s order denying the first motion to suppress were filed with the clerk during the February term. As a result, this case falls within an exception to application of the general rule.

2. We reject the State’s contention that the trial court erred when it found that the parole warrant issued for Dukes’ arrest was invalid because the trial court suppressed only part of the evidence in Case No. 96-CR-340X. The record in Case No. 96-CR-340X is not a part of the record in this appeal and the State did not request that it be included. Additionally, the record in this case is silent about the reason or reasons the parole warrant was issued for Dukes’ arrest. “[I]t is appellant’s obligation to provide the record substantiating his claim, OCGA § 5-6-41, and in its absence, we must affirm as to that issue. [Cit.]” Whiteley v. State, 188 Ga. App. 129, 132 (2) (372 SE2d 296) (1988). Thus, for purposes of this appeal, we must assume that the trial court properly found that the parole arrest warrant was invalid.

3. The State contends the trial court erred when it found that this Court’s decision in Boatright v. State, supra, required the trial court to grant the motion to suppress. According to the State, the facts of this case are “more akin” to those at issue in Harvey v. State, 266 Ga. 671 (469 SE2d 176) (1996).

In Harvey, the Supreme Court of Georgia upheld a search incident to an arrest which arose out of a bench warrant which, unbeknownst to the arresting officer, had been recalled. Id. at 673-674. Although the Court recognized that the defendant was not lawfully arrested pursuant to the bench warrant, it noted that “the validity of an arrest is not necessarily dependent upon the existence of a valid arrest warrant because if the person detained is outside of his home and probable cause to arrest exists at the time of detention, a warrant is not required.” Id. at 672. The Court then upheld the arrest because it found that the recalled bench warrant, which the officer had confirmed to be valid through his dispatcher, provided sufficient probable causé for the arrest. Id. at 673.

In Boatright, the trial court denied a motion to suppress evidence obtained after an arrest pursuant to a probation arrest warrant. The probation arrest warrant was issued based upon evidence obtained during an unlawful search and seizure. Id. at 183. Because the probation warrant resulted directly from the illegal search, we found it to be invalid. Id.

Pursuant to Harvey, this Court then analyzed whether a warrantless arrest of Boatright was justified. Id. at 183-185. We concluded that Boatright’s warrantless arrest was unlawful because “[t]here [was] no evidence of exigent circumstances, and no evidence of Boatright’s consent to let the officers enter his home to arrest him. As Boatright’s permission to search his home was given simultaneously with his illegal arrest, there is likewise no evidence of attenuation of the consent from the illegal arrest. . . . [Cit.]” Id. at 185.

The State seeks to distinguish Boatright based upon the following: (1) Dukes was arrested at a location other than his own home; (2) the officers arresting Dukes committed no affirmative acts which invalidated the parole warrant; and (3) Dukes invited the officers into the mobile home. We find that none of these assertions authorizes this Court to disregard Boatright.

First, there is a factual dispute in the record as to whether Dukes resided in the mobile home. On appeal of a trial court’s decision on a motion to suppress, “ ‘the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them. (Cit.)’ [Cits.]” Sprauve v. State, 229 Ga. App. 478, 479-480 (1) (494 SE2d 294) (1997). Thus, we cannot use the State’s allegation that Dukes did not reside in the mobile home to distinguish Boatright.

Second, we are not persuaded by the State’s assertion that Boat-right can be distinguished because the particular officers executing the parole arrest warrant did not conduct the illegal search which invalidated the warrant. In Boatright, we distinguished Harvey, in part, because “it was the affirmative acts of the police themselves which invalidated the warrants in this case . . . , not [a] computer glitch.” (Emphasis in original.) Id. at 184. There is no indication in Boatright that our reference to “the police” includes only the individual officers conducting the illegal search and we decline to limit our decision in this manner. See McDaniel v. State, 227 Ga. App. 364, 370-371 (489 SE2d 112) (1997) (Beasley, J., dissenting).

Finally, the fact that Dukes stated, “come in,” in response to a knock on the door does not demonstrate his “consent to let the officers enter his home to arrest him.” Boatright, supra at 185. There is no evidence in the record that the police officers were wearing uniforms, identified themselves as police officers or otherwise informed Dukes about the purpose of their visit.

Moreover, even if the officers lawfully entered the house, they had no probable cause to immediately arrest Dukes without a valid warrant. As we held in Boatright, a warrant which is invalid because it is based upon an unlawful search cannot serve as probable cause to arrest. Id. at 184. Unlike the valid warrant which was issued in Harvey, but later recalled, the warrant in this case was invalid from the day it was issued.

We find that this case is more closely aligned with Boatright and that the trial court did not err in granting Dukes’ and Sanders’ motion to suppress. Dukes’ consent to search the home “was given simultaneously with his illegal arrest” and there is “no evidence of attenuation of the consent from the illegal arrest.” Id. at 185.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

Decided August 21, 1998

Reconsideration dismissed September 15, 1998

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellant.

Kathleen J. Anderson, James W. Smith, for appellees.

       The record in Case No. 96-CR-340X is not a part of the record in this appeal.

       “Of his own mere motion; of his own accord; voluntarily and without prompting or request.” Black’s Law Dictionary, 5th ed., p. 296.


author: Beasley, Judge. POPE, Presiding Judge,

text:
    A98A0875.
    McCLARITY v. THE STATE.
    (506 SE2d 392)
   Beasley, Judge.

Based on a transaction recorded on videotape in the presence of a confidential informant, Mallory Dion McClarity was convicted of violating the Georgia Controlled Substances Act (OCGA § 16-13-30 (b)) for selling cocaine to an undercover police officer. He enumerates as error (i) the court’s refusal to appoint new counsel or allow him to proceed pro se, (ii) ineffective assistance of trial counsel (related to the first enumeration), (iii) the admission of a 1988 transaction as similar, and (iv) the denial of his right to be present at the pretrial “similar transaction” hearing.

1. “Both the federal and state constitutions guarantee a criminal defendant the right to self-representation. An unequivocal assertion of the right to represent oneself, made prior to trial, should be followed by a hearing to ensure that the defendant knowingly and intelligently waives the right to counsel and understands the disadvantages of self-representation.” If the request is equivocal or comes after the jury is impaneled, there is no reversible error in requiring the defendant to proceed with counsel.

McClarity asserts he twice requested to proceed pro se. The first instance was some months prior to trial when he personally submitted five pretrial motions to the court and requested the opportunity to pursue these motions pro se because of a lack of funds to finance his attorney doing so. He emphasized that he also wished to continue to be represented by counsel due to the complexity of the legal issues. The court responded by forwarding the motions to McClarity’s attorney and stating it would not entertain motions from McClarity personally unless it ruled he could proceed pro se. If McClarity wanted to proceed pro se, he would have to ask that counsel be dismissed. The court directed the attorney to communicate with McClarity and directed both to write to the court about the status of the legal representation. Neither did so, leaving counsel in the case.

The second instance occurred after the jury had been impaneled. McClarity asked that the jury be dismissed because he wanted to select new counsel. He indicated he was having problems communicating with present counsel. The court found no reason to dismiss the jury and directed McClarity to discuss the communication problem with his attorney over lunch. Following lunch, McClarity identified a minor problem with his attorney but did not ask that he be dismissed. Throughout the trial, the court repeatedly asked McClarity whether he was satisfied with his attorney’s representation. He responded affirmatively and did not request to proceed pro se. No error is indicated.

2. Although two similar transactions were introduced, McClarity identifies only one as erroneously admitted. In a pretrial hearing held pursuant to Uniform Superior Court Rule 31.3 (B), the prosecuting attorney stated a witness would testify that in 1988 police found a large amount of cocaine and related drug trafficking paraphernalia in McClarity’s vehicle. McClarity’s counsel argued the transaction was remote and dissimilar. The court found there was sufficient similarity and held it could be admitted to show scheme, bent of mind, intent, and course of conduct. No objection was raised when the State introduced the evidence at trial.

Even though a defendant challenges similarity at the pretrial hearing, he waives this ground by failing to assert it when the evidence is introduced at trial. But if a pretrial motion in limine is denied, the losing party need not renew his objection when the evidence is introduced at trial in order to preserve the issue.

Cases requiring the renewal of the objection at trial rely on Hunter v. State which held only that a lack of similarity argument was not preserved by other objections at the pretrial similar transaction hearing, which objections were simply renewed at trial. Nevertheless, the rule requiring a trial objection on similar transaction evidence is firm in Georgia jurisprudence, and we are bound to follow it. Consequently, McClarity’s failure to object to the similar transaction evidence at trial waived further review of the issue.

3. Citing nine errors by trial counsel, McClarity contends he was denied effective assistance in violation of the Sixth Amendment. “In analyzing a claim of ineffective assistance of counsel, ... a trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. A defendant must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel.”

Particularly important in this case is that the burden for proving ineffective assistance rests on the defendant, for McClarity and post-trial counsel chose not to subpoena trial counsel to testify at the motion for new trial hearing. In arguing that the trial court erred in rejecting his claim, McClarity ironically emphasizes in his appellate brief: “What is absent from the record is an explanation by trial counsel as to how such failure to consult was strategic and why trial counsel did not file the same motions defendant filed pro se or why he did not just have defendant’s pro se motions set for hearing. Further, since there is no testimony by trial counsel in the record explaining how his actions or inactions were calculated to be tactical or strategic there is no legal basis for any finding that the numerous deficiencies were trial tactics or strategy. The state has, in effect, conceded that it cannot defend its conviction by not offering the testimony of trial counsel. . . .”

McClarity misapprehends the burden of proof. “The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” As in Foreman v. State, “[d]efendant did not subpoena his trial counsel to appear at the hearing on his motion for new trial. Thus, defendant made no affirmative showing that the purported deficiencies in his trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy. . . . The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed.” “In the absence of contrary evidence, defense counsel’s actions are presumed to be part of trial strategy.”

In some cases, Georgia appellate courts declined to even address the merits of an ineffective assistance claim where trial counsel did not testify at the motion for new trial hearing. In other cases they scrutinized the particular errors of counsel alleged and ruled on those which could be decided without the testimony of trial counsel. We will consider each of the nine allegations accordingly.

(a) Trial counsel did not request a preliminary hearing and McClarity was indicted without one:

“[A] preliminary hearing is not a required step in a felony prosecution. . . .” “[0]nce an indictment is obtained there is no judicial oversight or review of the decision to prosecute. . . .” A conviction on direct appeal or on collateral attack will not be overturned because a commitment hearing was denied.

McClarity argues that counsel could have discovered more about the State’s case through a preliminary hearing. We cannot determine, without trial counsel’s testimony, whether the waiver was a trial tactic. Assuming that McClarity’s trial counsel was somehow ineffective in waiving the commitment hearing, McClarity has shown no harm or prejudice resulting. “[T]he alleged loss of discovery occasioned by the failure to conduct a commitment hearing is not a legally recognizable basis for reversal.”

(b) Trial counsel did not file any discovery motions:

Discovery motions require acceding to reciprocal discovery and thus constitute a tactical decision. Absent trial counsel testimony to the contrary, the choice to forgo discovery is presumed strategic.

(c) Trial counsel made no requests for informal discovery:

The record shows that, at the least, counsel asked the State’s attorney several questions about the file and watched the videotape before trial. Absent counsel’s testimony, we cannot evaluate informal discovery measures he may have pursued or omitted in investigation of the case.

(d) Trial counsel failed to file discovery motions to ascertain the identity of a confidential informant:

In addition to the reasons explained in subdivision (b), this assertion fails because such motions would likely have been unsuccessful. Whether to require the disclosure of the identity of a confidential informant depends on the results of a delicate test which balances the need for the State to preserve the flow of information from informants and the right of the defendant to a full and fair opportunity to defend himself. Considering circumstances similar to those of this case, including the decision of defendant not to testify, Bannister v. State held the scales tipped toward not requiring the disclosure of the informant’s identity. Although the final factor tipping the scales in Bannister was an admission by the defendant as to the unavailability of the informant, here the key factor would be the objective videotape of the transaction, which diminishes a need for the informant to amplify or refute the testimony of the officer and the defendant.

Even if the informant had been identified, “defendant’s argument concerning whether trial counsel would have called the witness to testify at trial is mere conjecture.”

(e) Trial counsel failed to object to McClarity’s absence at the similar transaction hearing:

Defendant’s failure to object to the similar transaction evidence at trial moots this complaint. See Division 4.

(f) Trial counsel failed to request a continuance after learning on the morning of trial that a videotape of the incident would be introduced:

Whether or not to seek a continuance is a classic example of a trial stratagem that, absent testimony to the contrary, cannot serve as the basis for an ineffective assistance claim.

(g) Trial counsel failed to submit jury charges regarding the limited scope of admission of similar transactions:

Trial counsel stated at trial that he had jury charges prepared but chose not to submit them because the pattern charges would cover the essential points. Before the State introduced each similar transaction, the court correctly charged the jury regarding its limited purpose. During the final jury charge, the court reinforced the instruction. At defendant’s request the court brought the jury back and charged them yet again on this matter to rectify a mistake in the final charge. Defendant made no other objections to the charge and reserved no objections. In sum, McClarity has not shown “that the failure to request specific charges prejudiced his defense.”

(h) Trial counsel failed to object to testimony regarding identification of McClarity in a video shown to the jury; and

(i) Trial counsel failed to object to testimony offered by the witnesses to the two similar transactions:

No argument or citation of authority supports these two contentions as to counsel’s effectiveness, which are therefore deemed abandoned.

Having carefully reviewed the record, we cannot say the trial court’s effective assistance findings are clearly erroneous, particularly in light of trial counsel’s strong arguments, pointed cross-examinations, and various objections. “Moreover, considering the videotape evidence and the testimony of the officer, it is unlikely any of these alleged errors altered the outcome of this trial.”

4. Next, McClarity contends he was denied the right to be present at the pretrial similar transaction hearing and is entitled to a new trial under McGinnis v. State.

McGinnis held that “it constitutes prejudicial error to conduct an evidentiary suppression hearing in the defendant’s absence. . . . The defendant . . . can waive his right to be present at a suppression hearing and that right can be waived by the defendant’s counsel if the waiver is made in defendant’s presence, or with the defendant’s express authority, or if the defendant subsequently acquiesces to the waiver made by counsel.”

McClarity was not present at the similar transaction hearing, and nothing indicates a waiver. He testified he knew nothing of the hearing until the day of trial. At the hearing the prosecuting attorney stated in her place what the similar transaction evidence would be. Because no witnesses testified, the court held this was not an evidentiary hearing and thus McClarity had no right to be there.

Per USCR 31.3 (B), “[t]he judge shall hold a hearing at such time as may be appropriate, and may receive evidence on any issue of fact necessary to determine the request” to present similar transaction evidence. “A hearing in which the State relies upon the statements of the prosecuting attorney to make the required showing for the admissibility of similar transaction evidence is sufficient to satisfy the requirements of [USCR] 31.3 (B). [Cit.]”

Some cases differentiate a hearing in which the prosecutor simply states the evidence in her place from an evidentiary hearing. “[USCR] 31.3 clearly grants the trial court the discretion as to the reception of evidence. There is no per se right to an evidentiary hearing, only to a hearing, nor any mandatory obligation to produce testimonial evidence. The statement in place as to what was expected to be shown revealed facts so as to constitute sufficient similarity . . . between the prior acts and the offenses on trial to permit the admission of such evidence.” Other cases imply that the prosecutor’s “stating in her place” is evidence itself.

Harris v. State reconciled these two concepts by referring to a testimonial hearing as a “full evidentiary hearing” compared to a hearing where the prosecutor is merely “stating in his place the nature of the evidence to be given regarding the similar transaction.” Conceding that the rules give no right to an “evidentiary hearing,” Grogan v. State observed: “It is difficult to contemplate what would ordinarily be heard at such a hearing, if not the similarity of the other ‘transaction,’ which is by nature an evidentiary matter.”

Flowers v. State concluded that “[b]ecause a similar transactions hearing may be evidentiary, [defendant’s] presence will be required, unless [defendant] himself expressly waives his presence at the hearing. [Cit.]” McGinnis referred to defendant’s required presence at “other proceedings involving evidentiary questions.” Because the similar transactions hearing is by nature an evidentiary matter or at least involves an evidentiary question, even if the prosecutor only states the evidence in her place, a defendant’s presence is required unless he expressly waives this right.

We need not remand this case to the trial court for another hearing on the admissibility of the similar transactions. McClarity did not object to the introduction of the two similar transactions at trial, and on appeal McClarity did not even enumerate as error the admission of one of the transactions. Because McClarity waived his right to object to the similar transaction evidence, a hearing would be futile.

Decided August 24, 1998

Reconsideration denied September 15, 1998

Gerry E. Holmes, for appellant.

James R. Osborne, District Attorney, Jane A. Levendusky, Assistant District Attorney, for appellee.

Judgment affirmed.

Ruffin, J., concurs. Pope, P. J., concurs specially.

POPE, Presiding Judge,

concurring specially.

I agree with the opinion in full and with the majority’s conclusion in Division 2 that McClarity waived his objection to the similar transaction evidence by failing to object to the evidence at trial. McClarity did not file a motion in limine regarding the prior transactions, but merely objected at the hearing on the State’s motion to introduce evidence of similar transactions. Given these circumstances, the argument here was waived. See Sapeu v. State, 222 Ga. App. 509, 510 (4) (474 SE2d 703) (1996).

Despite my agreement that McClarity waived his objection, I concur specially with the opinion because of an important fact which is omitted from the majority’s discussion in Division 2. That fact is that the December 1988 similar transaction evidence which McClarity claims was improperly admitted was properly before the jury. Thus, regardless of the lack of an objection, McClarity’s argument that the evidence was erroneously admitted is meritless. McClarity was on trial for selling cocaine in 1996 to an undercover police officer in a certain area of Cedartown. Evidence regarding the prior act showed that eight years earlier McClarity was driving a vehicle in the same geographical area and that police searched his vehicle and found 30 grams of cocaine on the person of the passenger in McClarity’s vehicle. The witness who had conducted the 1988 search testified that the search was conducted after the police received information that McClarity would be in the area after leaving a local motel. After a jury trial, McClarity was convicted of trafficking in cocaine. The court’s finding that there was sufficient similarity between the crimes was proper. See Tate v. State, 230 Ga. App. 186, 187 (2) (495 SE2d 658) (1998); Collins v. State, 205 Ga. App. 341, 343 (2) (422 SE2d 56) (1992).

       (Citations omitted.) Thaxton v. State, 260 Ga. 141, 142 (2) (390 SE2d 841) (1990).

        Hayes v. State, 203 Ga. App. 143, 144 (2) (416 SE2d 347) (1992).

        Mallory v. State, 225 Ga. App. 418, 422 (4) (483 SE2d 907) (1997).

        Thaxton, supra, 260 Ga. at 142 (2).

        Davis v. State, 229 Ga. App. 787, 789 (2) (494 SE2d 702) (1997); see Smith v. State, 268 Ga. 42, 43 (3) (485 SE2d 189) (1997) (similar transaction issue waived if defendant fails to object at trial).

        Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284 (260 SE2d 20) (1979); Stephens v. Dept. of Transp., 170 Ga. App. 784, 785 (1) (318 SE2d 167) (1984); see Reno v. Reno, 249 Ga. 855, 856 (1) (295 SE2d 94) (1982) (if motion in limine is granted, losing party need not renew objection if evidence is introduced at trial); see also Jordan v. Johnson, 223 Ga. App. 875, 877-880 (479 SE2d 175) (1996) (Birdsong, P. J., concurring specially) (setting forth history of motion in limine rule).

       202 Ga. App. 195, 196-198 (3) (413 SE2d 526) (1991).

       See Riddle v. State, 208 Ga. App. 8, 10 (1) (b) (430 SE2d 153) (1993); Cole v. State, 211 Ga. App. 236, 238 (438 SE2d 694) (1993); Jackson v. State, 217 Ga. App. 485, 488 (4) (a) (458 SE2d 153) (1995) (physical precedent).

       See Smith, supra, 268 Ga. at 43 (3); Davis, supra, 229 Ga. App. at 789 (2); Goss v. State, 228 Ga. App. 411, 413 (2) (491 SE2d 859) (1997); Duque v. State, 228 Ga. App. 391, 392 (2) (491 SE2d 841) (1997); White v. State, 225 Ga. App. 74, 75 (2) (483 SE2d 329) (1997); Goodroe v. State, 224 Ga. App. 378, 381 (2) (480 SE2d 378) (1997); Jackson v. State, 223 Ga. App. 207, 208 (1) (477 SE2d 347) (1996); Shropshire v. State, 223 Ga. App. 118, 119 (2) (476 SE2d 859) (1996); Sapeu v. State, 222 Ga. App. 509, 510 (4) (474 SE2d 703) (1996); Parker v. State, 220 Ga. App. 303, 305 (4) (469 SE2d 410) (1996); Buckner v. State, 219 Ga. App. 71, 72 (2) (464 SE2d 11) (1995); Barry v. State, 214 Ga. App. 418, 419 (1) (448 SE2d 243) (1994).

       (Citations and punctuation omitted.) Hollis v. State, 225 Ga. App. 370, 371 (3) (484 SE2d 54) (1997); controlling is Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984); see Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995).

       (Citations and punctuation omitted.) Foreman v. State, 200 Ga. App. 400, 401 (3) (408 SE2d 178) (1991); see Smith v. State, 224 Ga. App. 819, 820-821 (2) (481 SE2d 896) (1997) (same); Wheeler v. State, 212 Ga. App. 638, 639 (2) (442 SE2d 906) (1994) (“because trial counsel did not testify, there has been no affirmative showing that the alleged deficiencies in performance were not examples of a trial strategy”).

       (Citations and punctuation omitted.) Foreman, supra, 200 Ga. App. at 401 (3).

       (Citations omitted.) Thomas v. State, 268 Ga. 135, 139 (12) (485 SE2d 783) (1997); Brewer v. State, 219 Ga. App. 16, 21 (7) (463 SE2d 906) (1995) (same).

       See, e.g., Williams v. State, 251 Ga. 749, 809 (20) (312 SE2d 40) (1983); Sterling v. State, 223 Ga. App. 490, 491 (478 SE2d 145) (1996); Creson v. State, 218 Ga. App. 184, 185 (2) (460 SE2d 83) (1995); compare Cochran v. State, 262 Ga. 106, 107 (2) (a) (414 SE2d 211) (1992) (because trial counsel testified, merits were considered).

       See, e.g., Wright v. State, 267 Ga. 496, 497 (2) (a) (480 SE2d 13) (1997) (even though trial counsel’s missing testimony was “a critical element for the proper assessment of counsel’s conduct,” court could determine particular matter from the record); Bowman v. State, 222 Ga. App. 893, 899 (6) (476 SE2d 608) (1996) (claims regarding matters outside of record need testimony of trial counsel; claims regarding errors made during course of trial may not require it).

        State v. Middlebrooks, 236 Ga. 52, 55 (2) (222 SE2d 343) (1976).

       Id.

       Id.

       See Futch v. State, 151 Ga. App. 519 (1) (260 SE2d 520) (1979) (waiver of preliminary hearing may be a trial tactic).

        Cargill v. State, 255 Ga. 616, 622 (1) (340 SE2d 891) (1986).

        Williams v. State, 157 Ga. App. 168-169 (2) (276 SE2d 852) (1981).

       OCGA § 17-16-1 et seq.

       See Cunningham v. State, 222 Ga. App. 740, 744 (2) (c) (475 SE2d 924) (1996) (no ineffective assistance for failure to file discovery motion because such “would have . . . resulted in the State’s being entitled to reciprocal discovery”).

        Williams v. State, 219 Ga. App. 167, 168-169 (2) (464 SE2d 404) (1995) (“[w]e will not presume a deficiency resulted merely from counsel’s failure to file standard pretrial motions”); Foreman, supra, 200 Ga. App. at 401 (3) (failure to file pretrial motions may be part of trial strategy); Garrett v. State, 196 Ga. App. 872, 873 (1) (397 SE2d 205) (1990) (whether to file pretrial motions may be part of strategy and tactics).

       See Harkness v. State, 225 Ga. App. 864, 866 (2) (485 SE2d 810) (1997) (defendant’s “assertions of his trial counsel’s failure to interview certain witnesses cannot be reviewed without his trial counsel’s testimony or other proof”); Taylor v. State, 203 Ga. App. 210, 211-212 (3) (416 SE2d 554) (1992) (alleged failure to investigate can only be determined with trial counsel’s testimony).

        Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1956); see Thornton v. State, 238 Ga. 160, 164-165 (2) (231 SE2d 729) (1977); Moore v. State, 187 Ga. App. 387, 388-393 (2) (370 SE2d 511) (1988).

       202 Ga. App. 762, 763-766 (1) (b) (415 SE2d 912) (1992).

        Foreman, 200 Ga. App. 401 (3); cf. Hampton v. State, 215 Ga. App. 57 (449 SE2d 654) (1994) (remanded for post-trial hearing to determine if failure to obtain informant’s identity prejudiced defense).

        Walker v. State, 210 Ga. App. 33, 34 (a) (435 SE2d 259) (1993).

       See Kegler v. State, 267 Ga. 147, 149 (5) (475 SE2d 593) (1996) (failure to reserve exceptions to jury charge waives objections).

       (Citation omitted.) Tenant v. State, 218 Ga. App. 620, 623 (4) (e) (462 SE2d 783) (1995) .

       Court of Appeals Rule 27 (c) (2); see Sapeu, supra, 222 Ga. App. at 510 (2).

       See Tenant, supra, 218 Ga. App. at 623 (4) (f) (court can consider “totality of the representation”); Taylor, 203 Ga. App. at 212 (3) (court considered cross-examinations, arguments, and objections).

       (Citation omitted.) Randolph v. State, 225 Ga. App. 324, 325 (484 SE2d 1) (1997).

       208 Ga. App. 354 (430 SE2d 618) (1993).

       (Citations omitted.) Id. at 357-358 (4).

        Okross v. State, 210 Ga. App. 132, 134 (2) (435 SE2d 454) (1993); Henderson v. State, 204 Ga. App. 884, 888 (3) (420 SE2d 813) (1992) (“A trial court’s finding of sufficient similarity based on the prosecutor’s statement of the relevant facts she expects to show is proper”) (citation omitted). We observe that the disadvantage of such a truncated procedure is the inability or the unwillingness of the prosecutor to give important details. This is manifest here where the prosecutor did not reveal that unlike the present case, in one of the similar transactions the defendant did not personally sell the drugs to the undercover agent but had a “runner” do it, which runner renegotiated the price. As to the second similar transaction, the prosecutor did not reveal that the drugs found in McClarity’s car actually fell out of the dress of an occupant of the vehicle.

       (Citations and punctuation omitted.) McGowan v. State, 198 Ga. App. 575, 576 (1) (402 SE2d 328) (1991); Meier v. State, 190 Ga. App. 625, 627 (3) (379 SE2d 588) (1989) (same).

       See Stephens v. State, 261 Ga. 467, 469 (6), n. 2 (405 SE2d 483) (1991); Banks v. State, 201 Ga. App. 266, 268 (1) (410 SE2d 818) (1991) (Stephens “noted that had the State presented evidence of similarity in the case during trial as it had done in the USCR 31.3 (B) hearing at which the prosecutor stated in his place the relevant facts”).

       (Citations omitted.) 210 Ga. App. 366, 367 (2) (436 SE2d 231) (1993).

       See Johnson v. State, 204 Ga. App. 453 (1) (419 SE2d 741) (1992) (physical precedent) (same).

       (Emphasis in original.) 192 Ga. App. 234, 236 (384 SE2d 441) (1989).

       220 Ga. App. 814, 816 (3) (468 SE2d 199) (1996), overruled on other grounds, Strickland v. State, 223 Ga. App. 772, 775 (1) (a) (479 SE2d 125) (1996).

        McGinnis, supra, 208 Ga. App. at 357 (4).

        Deal v. State, 213 Ga. App. 131, 132 (443 SE2d 713) (1994); McGinnis, supra, 208 Ga. App. at 358.


author: Blackburn, Judge.

text:
    A98A1803.
    SORROW v. THE STATE.
    (505 SE2d 842)
   Blackburn, Judge.

After a jury trial, Phillip A. Sorrow appeals his conviction of battery. Sorrow contends that the trial court erred in admitting the victim’s incriminating hearsay statement into evidence. Sorrow claims that, because the victim did not testify, the admission of her statement violated his right to confront the witnesses against him and violated his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. The trial court correctly determined that the victim’s statement was admissible pursuant to the necessity exception to the hearsay rule, and we affirm Sorrow’s conviction.

1. “In Higgs v. State, 256 Ga. 606 (351 SE2d 448) (1987), the Georgia Supreme Court, citing Ohio v. Roberts, 448 U. S. 56, 65 (100 SC 2531, 65 LE2d 597) (1980), held that the United States Supreme Court had not interpreted ‘confrontation’ to signify the exclusion of every hearsay exception, and had provided a method to resolve confrontation challenges based on the admission of hearsay testimony: First, the Sixth Amendment establishes a rule of necessity. In the usual case the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. The second aspect operates once a witness is shown to be unavailable. Only hearsay marked with such trustworthiness that there is no material departure from the reason of the general rule may be admitted.” (Citations and punctuation omitted.) Adams v. State, 191 Ga. App. 16, 17 (2) (381 SE2d 69) (1989).

OCGA § 24-3-1 (b) provides that “[hjearsay evidence is admitted only in specified cases from necessity.” There are several specific exceptions from the rule against the admission of hearsay. See OCGA § 24-3-1 et seq. The Supreme Court of Georgia has found that the evidence code does not contain an exhaustive list of exceptions to the hearsay rule. See Higgs, supra at 607 (3). It has determined that “[t]he two underlying reasons for any exception to the hearsay rule are a necessity for the exception and a circumstantial guaranty of the trustworthiness of the offered evidence — that is, there must be something present which the law considers a substitute for the oath of the declarant and his cross examination by the party against whom the hearsay is offered.” (Punctuation and emphasis omitted.) Id. Based upon OCGA § 24-3-1 (b), therefore, the Supreme Court of Georgia has held that “[a]n exception will be allowed ‘from necessity’ where ‘necessity’ and ‘particularized guarantees of trustworthiness’ are established. Mallory v. State, 261 Ga. 625 (2) (409 SE2d 839) (1991).” McKissick v. State, 263 Ga. 188, 189 (3) (429 SE2d 655) (1993).

In the present case, the State’s only witness to the battery was the victim, Sorrow’s wife. At trial, she invoked the marital privilege, see OCGA § 24-9-23, and refused to testify. The State then sought to introduce the victim’s verbal and written statements that were made to the arresting officer shortly after the incident. The trial court determined that the victim’s statements were necessary and reliable and admitted them pursuant to OCGA § 24-3-1 (b).

(a) The victim’s statement was necessary, and she was unavailable to testify because of her refusal to testify against her husband. See Higgs, supra at 608 (4) (witness was unavailable due to her refusal to testify against her husband and her testimony was necessary as the only eyewitness to the crime). See also Wallace v. State, 216 Ga. App. 718, 719 (2) (455 SE2d 615) (1995) (same).

(b) In determining whether the hearsay statements are trustworthy, the courts consider, among other things: “(1) [whether] the witness’s statement was given shortly after the event; (2) [whether] the witness’s statement was given during the course of an official investigation; and (3) [whether] there was [any] testimony that the witness retracted the statement or controverted the statement.” Jackson v. State, 202 Ga. App. 582, 586 (2) (414 SE2d 905) (1992). Courts have also considered whether the declarant consulted an attorney before making the statements, whether the declarant previously testified regarding the reason for her refusal to testify, and the extent to which the declarant’s statement is supported by other evidence. See Higgs, supra at 608 (5). See also Adams, supra at 18.

In the present case, the trial court determined that the victim’s statements were trustworthy because: they were given shortly after the incident occurred; they were made as part of an official investigation by a police officer; they were not based upon a faulty recollection; the declarant had no apparent reason to lie; and the declarant had not disavowed her statements. Our review of the record indicates that the trial court’s findings are based on the evidence and are not clearly erroneous; therefore, we affirm the trial court’s admission of the victim’s hearsay statements pursuant to OCGA § 24-3-1 (b).

2. We need not address Sorrow’s second enumeration of error as he failed to support it with any argument or citation of authority except to refer to his arguments in connection with his first enumeration. See Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

McMurray, P. J., and Eldridge, J, concur.

Decided August 31, 1998

Reconsideration denied September 15, 1998

Banks, Stubbs & Neville, Rafe Banks III, for appellant.

Leslie C. Abernathy, Solicitor, for appellee.


text:
    A98A1883.
    KNIGHT v. THE STATE.
    (506 SE2d 245)
   Blackburn, Judge.

Lester Knight appeals his conviction for trafficking in cocaine, contending in his sole enumeration of error that his initial stop was pretextual and that the trial court therefore erred in failing to suppress cocaine found in the vehicle in which he was riding. For the reasons set forth below, we affirm.

“In reviewing a trial court’s decision on a motion to suppress, our responsibility is to ensure that there was a substantial basis for the decision. In so doing, we consider all relevant evidence of record, wherever located, including evidence introduced at a suppression hearing and that introduced at trial; we construe the evidence most favorably to uphold the findings and judgment, and must adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. Further, since the trial court sits as the trier of facts, its findings will not be disturbed if there is any evidence to support them.” (Punctuation omitted.) Semelis v. State, 228 Ga. App. 813 (1) (493 SE2d 17) (1997).

On January 25, 1997, Knight was a passenger in a truck being driven by Kevin Lawson on the expressway. Officer Mark Whitwell observed that the truck had a smoky-colored plastic covering over its license plate which made the truck look as if it had no tag at all. Whitwell then followed the truck to ensure that it did have a tag. As he did so, the truck changed lanes without signaling. Whitwell then stopped the truck on two bases: (1) an improper obstruction of a license plate in violation of OCGA § 40-2-41 and (2) an improper lane change in violation of OCGA § 40-6-123.

During the stop, Whitwell noticed that Knight was attempting to hide a briefcase under his seat. Whitwell’s police dog indicated the presence of contraband in the vehicle. After Lawson and Knight exited the vehicle, Whitwell asked Lawson for permission to search the vehicle, which Lawson granted. During his search, Whitwell retrieved the briefcase and discovered that it contained cocaine. Knight was subsequently convicted of a trafficking offense.

On appeal, Knight’s sole enumeration of error is that the initial stop of the vehicle was improper, pretextual, and made without the requisite reasonable articulable suspicion. In support of this argument, Knight maintains that there is no evidence establishing either of the violations on which Whitwell based the initial stop. Knight’s claims, however, are untenable.

Decided September 4, 1998

Reconsideration denied September 15, 1998

Franklin & Hubbard, Curtis L. Hubbard, Jr., for appellant.

Tommy K. Floyd, District Attorney, Sandra A. Graves, Blair D. Mahaffey, Assistant District Attorneys, for appellee.

OCGA § 40-2-41 states, in relevant part: “It shall be the duty of the operator of any vehicle to keep the license plate legible at all times. No license plate shall be covered with any material unless the material is colorless and transparent. . . . Any person who violates any provision of this Code section shall be guilty of a misdemeanor.” Whitwell testified that the license plate of Lawson’s truck was heavily obscured by a smoky covering. This is clear evidence of a violation of OCGA § 40-2-41 which would justify the stop of Lawson’s truck.

OCGA § 40-6-123 (b) states: “A signal of intention to turn right or left or change lanes when required shall be given continuously for a time sufficient to alert the driver of a vehicle proceeding from the rear in the same direction or a driver of a vehicle approaching from the opposite direction.” Knight contends that traffic conditions at the time that Lawson changed lanes did not require that a signal be given. However, Whitwell testified that, at the time of the lane change, traffic was heavy and the lane change without a signal was unsafe. As such, there was evidence supporting Lawson’s violation of OCGA § 40-6-123 (b), which, in turn, provides a separate justification for Whitwell’s stop of Lawson’s truck.

Therefore, there were two separate bases which justified Whit-well’s initial stop of the vehicle in this case. As such, there was ample evidence to support the trial court’s ruling to admit evidence of the discovered cocaine, and we affirm the trial court’s denial of Knight’s motion to suppress.

Judgment affirmed.

McMurray, P. J, and Eldridge, J, concur.


author: McMurray, Presiding Judge.

text:
    A98A1068.
    QUINN v. THE STATE.
    (506 SE2d 890)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of speeding in a 45-mph speed zone. Although defendant testified he was driving only 44 mph when a City of Suwanee patrol officer stopped him, he admitted that the officer’s radar recorded his speed at 65 mph. Defendant explained that this reading did not reflect his truck’s actual velocity because he was transmitting a 65-mph radar signal from a “calibration unit” when the patrol officer tested his speed. Defendant indicated that he precipitated a speeding citation from the officer because he wanted to appear in court to “point out to the people of our community that these radar tests are subject to the law, that they are not being operated properly and that something needs to be done about it.” Defendant professed to be “like a Ralph Nader of radar and like Don Quixote, I’m standing at windmills. . .

Defendant filed this appeal, pro se, after the denial of his motion for new trial. He asserts 31 enumerations of error. Held:

1. Defendant contends the State did not establish the necessary foundation for admission of its radar speed evidence.

Since defendant testified that he deliberately caused the patrol officer’s radar to register 65 mph to gain a judicial forum for contesting radar speed tests, we find no basis for defendant’s challenge to admission of the State’s radar speed evidence. This is so because admission of the same fact by other means renders harmless the admission of incompetent or inadmissible evidence. Payne v. State, 152 Ga. App. 471, 473 (2) (263 SE2d 251). But even assuming the contrary and that the State did not meet the foundational requirements for admission of its radar speed results, we find it highly probable admission of this evidence did not contribute to defendant’s conviction for speeding. The arresting officer not only testified that he estimated defendant’s speed at 63 mph in a 45-mph speed zone, he testified that defendant admitted to speeding at the scene of the traffic stop. This evidence, and defendant’s admission that he wilfully obstructed law enforcement efforts to monitor his speed, overwhelmingly supports the jury’s guilty verdict. See Harris v. State, 210 Ga. App. 366, 368 (3) (436 SE2d 231); Carver v. State, 208 Ga. App. 405, 408 (5) (430 SE2d 790).

2. Defendant challenges the trial court’s denial of his motions to study, test and examine the patrol officer’s radar detector, but he does not cite authority showing that he is entitled to such access or testing. Defendant’s right to test the patrol officer’s radar speed detector appears to be limited to OCGA § 40-14-5 (b)’s on-the-scene accuracy test. See Carver v. State, 208 Ga. App. 405, 406 (2), supra. Since it is undisputed that the patrol officer provided defendant with such a test, the trial court did not err in denying defendant’s motions to study, test and examine the radar detector used to measure his speed.

3. Defendant contends the arresting officer violated OCGA § 40-14-5 (b) by conducting an on-the-scene accuracy test after issuing him a speeding citation. This contention provides no basis for reversal because defendant fails to show harm by the patrol officer’s alleged wrongdoing. A party must show harm as well as error on appeal. Frost v. State, 200 Ga. App. 267, 271 (4) (407 SE2d 765).

Decided September 15, 1998.

Kevin R. Quinn, pro se.

Gerald N. Blaney, Jr., Solicitor, William F. Bryant, Assistant Solicitor, for appellee.

4. Defendant contends the trial court erred in certifying certain lost records pursuant to OCGA § 24-8-1 and in failing to preserve certain hearing transcripts. Again, defendant fails to show that he was harmed by these alleged errors. Frost v. State, 200 Ga. App. 267, 271 (4), supra.

5. Our review of the record and transcripts does not reveal that the trial court erred in failing to grant defendant’s motion for leave of absence, motion for continuance, and motion for an extension of time. Such matters are entrusted to the sound discretion of the trial court. Slaughter v. State, 172 Ga. App. 578 (323 SE2d 876).

6. Defendant complains that the trial court erred in discussing the merits of and overruling defendant’s objection to certain evidence in the jury’s presence. Defendant similarly contends the trial court diminished his credibility as an expert witness by discussing the merits of and overruling the State’s objection to defendant’s qualifications as an expert in the jury’s presence. Defendant waived his right to complain by arguing with the trial judge in the jury’s presence, failing to object to the trial judge’s allegedly prejudicial statements, or failing to request rulings on the respective objections at issue outside the jury’s presence. Acquiescence deprives a party of the right to complain. State v. Pattee, 201 Ga. App. 690, 693 (411 SE2d 751).

7. We have reviewed defendant’s remaining enumerations of error and find that they are without merit. Indeed, most of them must be deemed abandoned because they are not supported by relevant argument or citation of authority. “Any enumeration of error which is not supported in the brief by citation of authority or argument shall be deemed abandoned.” Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.