author: Cooper, Judge.

text:
    A93A0295.
    McMILLON v. EMPIRE FIRE & MARINE INSURANCE COMPANY, INC.
    (433 SE2d 429)
   Cooper, Judge.

This appeal arises from a personal injury action brought by appellant against Smalley Transportation Company, Inc. (“Smalley”) and Empire Fire & Marine Insurance Company, appellee herein. The trial court granted summary judgment to appellee and appellant appeals.

Appellant suffered injuries on February 21, 1990, when the automobile in which she was a passenger was struck by an 18-wheel tractor trailer owned and operated by Gail Washington, who had been hired by Smalley to haul goods under a trip lease agreement. Smalley was insured by National Union Fire Insurance Company of Pittsburgh (“National Union”). Washington’s tractor trailer was insured by appellee under a policy of insurance which specifically and clearly provided that it was for “Non-Trucking Use.” The insurance policy also contained a business use provision which excluded from liability coverage “ ‘bodily injury’ or ‘property damage’ while a covered ‘auto’ is used to carry property in any business or while a covered ‘auto’ is used in the business of anyone to whom the ‘auto’ is leased or rented.”

In her original complaint, appellant did not name National Union as a defendant but alleged that appellee was Smalley’s insurer. Appellee denied that it insured Smalley or was a proper party to the action, and appellant was allowed to amend her complaint to add National Union as the insurer for Smalley. National Union answered the complaint and admitted that it insured Smalley as a motor common carrier at the time of the collision. Washington has never been named as a defendant in the action. The trial court found that appellee was not an insurer of Smalley and the policy of insurance covering Washington was for non-trucking use only, thus entitling appellee to summary judgment.

1. Appellant alleges in two enumerations of error that the policy issued by appellee was ambiguous and should have been construed against appellee. Specifically, appellant contends that some 27 inconsistencies exist as to whether appellee’s insurance policy was issued to Washington for non-trucking use only, all of which must be construed in appellant’s favor. However, the specified ambiguities consist of words or phrases quoted out of context and present no genuine issue of material fact when the policy is read in its entirety. Not only is the policy explicitly denominated as “Insurance for Non-Trucking Use,” but there is no ambiguity at all in the language of the business use exclusion, which is controlling here. This exclusionary clause could not have recited with greater precision or clarity that the policy did not provide coverage while the tractor trailer was leased to another business or used to carry the property of any business. It is uncontroverted that at the time of the collision, Washington was operating the insured vehicle in both of the situations in which the policy excluded liability coverage.

“ ‘(I)f the contract is ambiguous the ambiguity is to be resolved against the insurer. (Cit.) But ambiguity is not to be created by lifting a clause or portion of the contract out of context. . . .’ [Cits.]” Titan Indem. Co. v. Hall County, 202 Ga. App. 38, 39 (1) (413 SE2d 213) (1991). “ ‘Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any rider, endorsement, or application made a part of the policy.’ OCGA § 33-24-16. ‘ “An insurance company may fix the terms of its policies as it wishes, provided they are not contrary to law, and it may insure against certain risks and exclude others.” (Cit. and punctuation omitted.) (Cit.)’ [Cit.]” S & T Timber v. Southern Gen. Ins. Co., 198 Ga. App. 18, 19 (400 SE2d 379) (1990); accord Hollis v. St. Paul Fire &c. Ins. Co., 203 Ga. App. 252 (416 SE2d 827) (1992).

Decided July 12, 1993.

The Keenan Ashman Firm, Charles R. Ashman, Brian E. Krapf, for appellant.

Clark & Clark, Fred S. Clark, Brennan & Wasden, Wiley A. Wasden III, Marvin W. McGahee, for appellee.

2. Appellant also argues that the fact that the policy states that it is for “Non-Trucking Use” is not controlling. However, even if that language was not controlling, the policy specifically did not provide coverage for the business use of covered vehicles. Therefore, under the facts of this case, summary judgment was still properly granted to appellee.

3. Appellant further contends that Washington’s statement to the officer who investigated the accident naming appellee as the insurer created an ambiguity which required coverage under the policy. We find no merit to this argument. Washington’s mistaken belief that appellee was the insurer cannot obligate appellee to provide coverage where none existed under the clear terms of the policy.

4. In her final enumeration of error, appellant contends that appellee was properly named as a defendant because under the direct action statute, the insurer can be named together with the motor common carrier as a defendant. See OCGA § 46-7-12 (e). Although this section provides for joinder of an insurer where that insurer has potential liability under an insurance policy, it does not create a cause of action against an insurer which, under the terms of its policy, cannot be liable with respect to the accident in question.

For the foregoing reasons, we conclude that the trial judge correctly ruled that appellee was entitled to summary judgment. S & T Timber, supra at 19.

Judgment affirmed.

McMurray, P. J., and Beasley, P. J., concur.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A93A0451.
    DONOHUE v. GREEN.
    (433 SE2d 431)
   Smith, Judge.

Donohue, an attorney, brought suit against Green, his former client, to recover costs and expenses of litigation he had advanced in a case in which he had represented Green pursuant to a contingent fee contract. Donohue appeals from the judgment entered in favor of Green.

The record reveals that Green retained Donohue to pursue his recovery of damages incurred in an automobile accident. Donohue filed suit on Green’s behalf, but the action resulted in summary judgment in favor of all defendants. After appeals were unsuccessful, Donohue made written demand on Green for payment of expenses and costs he had advanced in the amount of $1,162.95. When Green failed to respond, this action was filed. It originally alleged that Green had terminated the contract through no fault of Donohue, thereby preventing the contingency, and that the reasonable value of Donohue’s services was $1,162.95. After Green answered, denying he had terminated the contract and attaching a copy of a letter from Donohue informing him that the appeal had been unsuccessful, Donohue amended and recast the complaint. This time he alleged that Green was indebted to him for costs and expenses in the amount of $1,162.95. In a nonjury trial, the trial court entered judgment in favor of Green, finding that the third paragraph of the fee contract, pertaining to expenses, was ambiguous, and construing it against Donohue, as the drafter.

Donohue contends the trial court erred in finding that the third paragraph of the contract was ambiguous, and that no parol evidence should have been admitted to vary its clear terms.

We affirm. The third paragraph of the fee contract provided that Green agreed “to pay an amount equal or equivalent to 33 Vs percent of whatever amount may be recovered or collected ... on said claim without suit, and 40 percent if suit is filed, plus all advances or expenses.”

First, the provision regarding expenses is capable of conflicting interpretations. It is clear that Green need not pay either 33 Vz percent or 40 percent to his attorney unless an amount is “recovered or collected.” However, it is unclear whether the phrase “plus all advances or expenses” applies as well only when an amount is “recovered or collected.”

Assuming that the requisites for a binding contract have been met, the existence of an ambiguity in a contract is a question of law for the court, Salvatori Corp. v. Rubin, 159 Ga. App. 369, 372 (1) (283 SE2d 326) (1981), and the trial court correctly found that the provision was ambiguous.

Decided July 12, 1993.

Kirby G. Bailey, for appellant.

Parol evidence is not admissible to add to, take from, or vary a written contract. OCGA § 13-2-2. However, the cardinal rule in the interpretation of contracts is to ascertain the intention of the parties, OCGA § 13-2-3, and “[f]or the purpose of aiding in the interpretation of a contract, the surrounding circumstances may be proved.” Salvatori Corp., supra. The trial court found Green, in his initial visit to Donohue’s office, was informed that he would not owe Donohue any expenses if a recovery was not obtained. Donohue has failed to provide this court with a transcript of the trial, thereby precluding our review of this finding. Butler v. First Family Mortgage Corp., 191 Ga. App. 360, 361 (1) (381 SE2d 551) (1989). The record supports the trial court’s judgment. We note, in addition, that Green’s allegation that he had been informed he would not be responsible for expenses appears to be bolstered by Donohue’s original allegation that the sum sought in this suit represented the value of his services, not unpaid expenses.

Additionally, “[a] contract is an agreement between two or more parties for the doing or not doing of some specified thing.” OCGA § 13-1-1. “The party asserting the existence of a contract has the burden of proving its existence and its terms. [Cits.] The requisites of an explicit contract are a meeting of the minds of the parties, mutuality, and the clear expression of the terms of the agreement. [Cits.]” Jackson v. Easters, 190 Ga. App. 713, 714 (1) (379 SE2d 610) (1989). It is clear that the parties had no meeting of the minds regarding expenses. As to this provision, at least, no binding contract existed, id. at 714-715, and the trial court therefore properly entered judgment in favor of Green.

We also agree with the trial court that Georgia State Bar Directory Rule 5-103 (C) has no bearing on the issue of Green’s liability to Donohue. That Rule prohibits an attorney from advancing or guaranteeing any financial assistance to clients, except expenses of litigation, provided the client remains ultimately liable for such expenses. Assuming the contract drawn by Donohue violates the Directory Rule, such a violation properly addresses itself to the State Bar. Wehunt v. Wren’s Cross of Atlanta Condo. Assn., 175 Ga. App. 70, 73 (3) (332 SE2d 368) (1985).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

William M. Green, Jr., pro se.


text:
    A93A0653.
    HOOD v. THE STATE.
    (433 SE2d 699)
   Smith, Judge.

Elbert Hood, Jr. appeals from his convictions on two counts of selling cocaine, and he enumerates only the general grounds.

As to the first count, Eugene Johnson, an 11-year police veteran, testified that Hood sold cocaine to him. Johnson testified that he had seen Hood at least four times before completing the sale, and also made a fifth contact after the sale. The evidence satisfies the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Baker v. State, 206 Ga. App. 18 (424 SE2d 324) (1992).

Regarding the second count, undercover “agent” Ira Bostic, who was not a regular police officer, testified that he had already known Hood for nine or ten years when he purchased cocaine from him. According to Bostic, when he asked Hood if he had anything, Hood said no. Hood then asked one Duron Powell if he had what Bostic wanted. Bostic handed the money to Hood, who handed it to Powell, who handed the substance later identified as cocaine to Hood, who handed it to Bostic, completing the transaction.

Hood submitted a tape recording of a telephone conversation between Bostic and himself, taken after Hood was charged, in which the agent appears to be agreeing that Powell sold the cocaine, and that Hood merely passed money between them. Bostic explained during redirect that he generally went along with what Hood said during that conversation in order to “cover himself.”

A reasonable jury could have surmised that Bostic, a local citizen who had also bought drugs from other persons in thé area as a paid agent of local police, had every reason to refrain from debating Hood’s version of the story as related over the telephone. Viewed in a light most favorable to the verdict, the recording consisted of nothing more than self-serving, out-of-court declarations made by Hood to a person who, although apparently agreeing with Hood, was under a certain degree of duress at the time. The recording is far from conclusive evidence demanding a legal conclusion that someone other than Hood made the actual sale to Bostic. Moreover, the theory that one may act as a conduit or procuring agent of the purchaser and thereby escape culpability as a seller has been considered and rejected by this court. See Singletary v. State, 194 Ga. App. 266 (3) (390 SE2d 611) (1990). The evidence as to Count 2 also meets the standard of Jackson v. Virginia, supra. Moss v. State, 206 Ga. App. 310, 311-312 (4) (425 SE2d 386) (1992).

Decided July 12, 1993.

E. Allen Smith, for appellant.

Richard A. Malone, District Attorney, William S. Askew, Assistant District Attorney, for appellee.

Judgments affirmed.

Johnson and Blackburn, JJ., concur.


author: Cooper, Judge. Beasley, Presiding Judge,

text:
    A93A0713, A93A0943.
    CARTER et al. v. FULTON-DeKALB COUNTY HOSPITAL AUTHORITY; and vice versa.
    (433 SE2d 433)
   Cooper, Judge.

Appellants, the administratrix of the decedent’s estate and the surviving child of the decedent, brought an action against appellee, alleging negligent treatment and transport of the decedent following an automobile accident. In March 1991, the trial court granted appellee’s motion for summary judgment on the grounds that appellants’ claims against appellee were barred under the doctrine of sovereign immunity. Appellants filed a timely notice of appeal from the trial court’s order granting summary judgment to appellee (Case No. A93A0713). In September 1991, appellee moved to dismiss the appeal due to appellants’ unreasonable delay in transmitting the record on appeal, and after hearing argument, the trial court denied the motion. In Case No. A93A0943, appellee appeals the denial of its motion to dismiss the appeal.

Case No. A93A0943

1. Since a determination that the trial court should have dismissed appellants’ appeal would make it unnecessary to address appellants’ appeal of the grant of summary judgment to appellee, we first review the propriety of the trial court’s order denying appellee’s motion to dismiss appellants’ appeal. The record reflects that appellants filed their notice of appeal in April 1991. In July 1991, a bill of costs was sent to appellants, which was not paid. On August 5, 1991, appellants filed a motion to extend time and stay appeal, along with an affidavit of indigency on behalf of the estate of the decedent. Appellants contended that the estate of the decedent was indigent and that a stay should be granted to await the outcome of a pending Supreme Court decision which could impact on the main appeal. On August 15, 1991, appellants filed affidavits of indigency on behalf of the administratrix and the surviving child. It is undisputed that neither of the August 15 affidavits of indigency were served on appellee and that appellee had no notice of the existence of the affidavits until July 1992. In September 1991, appellee responded to appellants’ motion to stay the appeal and also filed a motion to dismiss appellants’ appeal on the ground that appellants had unreasonably and inexcusably delayed in paying the costs of the appeal. Appellants did not respond to appellee’s motion until more than nine months later. At a hearing in July 1992, appellee discovered that appellants had filed affidavits of indigency in August 1991. However, appellee argued that the affidavits were ineffective because they had not been served on appellee. After hearing arguments from both parties, the trial court denied appellee’s motion to dismiss. The trial court found that appellants were not indigent and that their delay in transmitting the record was unreasonable and inexcusable, but ruled that the appeal could not be dismissed because appellants had filed affidavits of indigency. The trial judge noted in her order that although the policy in Fulton County was that the record would not be prepared and transmitted until the court approved the affidavit of indigency and entered an order allowing the appellant to proceed as an indigent, OCGA § 5-6-48 requires only that the affidavit of indigency be filed to avoid dismissal.

OCGA § 5-6-48 (c) provides that “the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence.” (Emphasis supplied.) See also OCGA § 5-6-48 (a) (“Failure of any party to perfect service of any notice or other paper hereunder shall not work dismissal.”) Appellee argues that appellants had a duty to inquire into the fact that the record had not been transmitted and to take whatever action necessary to see that the record was prepared and transmitted. We agree with appellee and the trial court that appellants’ delay in following up on the transmission of the record was unreasonable and inexcusable, but we are constrained by the language of OCGA § 5-6-48 as well as the mandate of OCGA § 5-6-30 that the appellate practice provisions be liberally construed “so as to bring about a decision on the merits of every case appealed.” Accordingly, we conclude that since appellants filed affidavits of indigency, the trial court properly denied appellee’s motion to dismiss.

Case No. A93A0713

2. Appellants contend that the trial court erred in granting summary judgment to appellee on its defense of sovereign immunity. The trial court relied on our decision in Hosp. Auth. of Fulton County v. Litterilla, 199 Ga. App. 345 (1) (404 SE2d 796) (1991) (“Litterilla 1”), in which we held that a hospital authority established pursuant to the Hospital Authorities Law is entitled to the defense of sovereign immunity except to the extent that there has been a waiver under the Constitution. Our decision in Litterilla 1 involved a retroactive application of the Supreme Court of Georgia’s holding in Self v. City of Atlanta, 259 Ga. 78 (1) (377 SE2d 674) (1989) that the language “sue or be sued” in an entity’s charter or enabling statute does not constitute a waiver of sovereign immunity against suit. In Litterilla v. Hosp. Auth. of Fulton County, 262 Ga. 34 (413 SE2d 718) (1992) (“Litterilla 2”), the Supreme Court of Georgia reversed our holding in Litterilla 1 but limited its decision to the specific question raised on certiorari, which was whether the existence of a liability trust fund resulted in a waiver of the Authority’s sovereign immunity. The Supreme Court held that the liability trust fund constituted liability insurance protection and acted as a waiver of sovereign immunity. The Court expressly declined to review those parts of our decision which held that a county hospital authority is entitled to the defense of sovereign immunity and that the rule of Self must be applied retroactively. Id. at 35, n. 1.

Appellants argue that the reasoning of the dissent in Litterilla 1, which concluded that Self should not be applied retroactively, is more persuasive and should be adopted in this case. We disagree with appellants. In Litterilla 1, we analyzed the question of retroactivity utilizing the three-pronged test set forth in Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (3) (300 SE2d 673) (1983) by (1) ascertaining whether Self established a new principle of law; (2) balancing the merits by looking at the purpose and effect of the prior law; and (3) weighing the inequities presented by retroactive application of the new rule. See Litterilla 1, supra at 348. We concluded that Self did establish a new rule by overruling existing precedent but did so in an area which had been the subject of numerous conflicting decisions in recent years; that retroactive application of Self would further the purpose of protecting the public treasury; and that the equities did not demand an exception to the general rule of retroactivity. Id. Upon opportunity to review our application of Self, we are convinced that the reasoning of the majority is sound and that the rule announced in Self should be given retroactive application.

3. Appellants also argue that the hospital authority should not be entitled to sovereign immunity because the operation of an ambulance service was not a governmental function but was a function the hospital authority engaged in to further a proprietary interest. The distinction between governmental functions and ministerial acts does not apply to counties. Ware County v. Cason, 189 Ga. 78 (2) (5 SE2d 339) (1939); Early County v. Fincher, 184 Ga. App. 47, 49-50 (360 SE2d 602) (1987). Accordingly, we find no merit to appellants’ argument.

4. Appellants also argue that any sovereign immunity which appellee enjoys has been waived because appellee has a self-insurance program. At the time this cause of action arose, Ga. Const. 1983, Art. I, Sec. II, Par. IX provided that the defense of sovereign immunity was waived for any claim for which liability insurance protection had been provided but only to the extent of any liability insurance provided. In Litterilla 2 the Supreme Court held that an Umbrella Liability Policy purchased by the hospital authority together with a trust fund providing self insurance of up to $2,000,000 constituted “liability insurance protection” within the meaning of the Constitution. The record contains the affidavit of appellee’s chief executive officer, who states therein that at the time appellants’ cause of action arose, the hospital did not have any insurance policy providing medical liability coverage or comprehensive general liability coverage or any other coverage which would be applicable to appellants’ claims. However, appellants refer us to a supplemental brief filed by appellee in which there is some mention of a self-insurance plan consisting of funds set aside in a trust account, and argue that these assertions constitute an admission as to the existence of insurance. See Dennington v. Rockdale Package Stores, 161 Ga. App. 450 (288 SE2d 709) (1982). Appellee’s argument in the court below raises a question about whether any insurance existed. However, the record is incomplete, and the trial court did not specifically address the question of insurance in its order. Since the trial court’s ruling was made prior to the Supreme Court’s decision in Litterilla 2, we remand this case to the trial court to allow the parties to perfect the record on the issue of insurance coverage which could constitute a waiver of sovereign immunity, after which the trial court should enter an appropriate order consistent with this opinion and Litterilla 2.

Judgment affirmed in Case No. A93A0943. Case No. A93A0713 remanded with direction.

McMurray, P. J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur fully in Divisions 2 and 3 but not in Division 1. As to it, I concur in refusing to reverse the trial court’s decision not to dismiss the appeal. It is a matter of discretion, Corbin v. First Nat. Bank, 151 Ga. App. 33, 34 (1) (258 SE2d 697) (1979), and the judge did not commit an error of law in choosing to permit the appeal to proceed. Nor would she have legally erred if she had dismissed the appeal, for in the stated opinions of both the trial court and this court, appellant’s delay was unreasonable and inexcusable. In fact, she found it to be “clearly” so, and further, “that this is precisely the type of case that the dismissal statute was intended to reach.” However, she recognized that local practice requires approval of the affidavit of indigency before the clerk will proceed to prepare the record for appeal and transmit it without the payment of costs; she impliedly did not fault appellant for not obtaining such approval. The affidavit, and the appeal, just languished despite appellee’s motion to dismiss it almost five months after the notice of appeal had been filed and nearly a month after the affidavits were filed. Over ten months went by before there was a hearing on appellee’s motion to dismiss the appeal, and this was eleven months after appellants had filed their affidavits of indigency and motion to extend the time and to stay the appeals.

OCGA § 5-6-48 (c) provides that “the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence. ...” Although the court initially made the requisite findings for dismissal, the court at the same time excused appellant from inquiring into local practice and assuring that the affidavits were effective. So, in the end, the court held that the delay was not inexcusable to the extent that dismissal was warranted. The court accepted the fact that the delay was caused not by appellants’ failure to file the affidavits of indigency but in their failure to obtain the court’s sanction of them. As in Hammontree v. Hammontree, 186 Ga. App. 819, 820 (368 SE2d 576) (1988), the explanation was adequate.

On appeal, I conclude that this was not an abuse of discretion, particularly since it is appellants who stand to lose from a delayed appeal. They are seeking money damages, so delay is detrimental to them because it prevents their reaching their goal, with all the attendant problems of witness memory loss, difficulties of record-gathering, and the like. Appellee is not harmed, other than to have the nuisance of an unresolved case.

I. do not join in the application of OCGA § 5-6-30 to this issue, for such would always overshadow appellants’ lagging and emasculate the timeliness requirements of OCGA § 5-6-48. We are not “constrained” to do so. Instead, we are constrained to enforce the dictates of OCGA § 5-6-48, which is carefully constructed to assure the “speedy” closure of cases by moving appeals along at a steady and reasonable pace with due consideration to the work involved in doing so. The statute makes allowances for forces beyond the control of the appellant and gives the trial judge flexibility to make exceptions. But this flexibility is circumscribed by the twin requisite curbs of reasonable time and excusable cause.

Decided July 12, 1993.

Smolar, Roseman, Brantley & Seifter, Barry L. Roseman, for appellants.

Alston & Bird, Robert D. McCallum, Jr., James C. Grant, Scott A. McLaren, Bernard Taylor, for appellee.

Delay in these two appeals was exacerbated by the clerk’s delay. Her certificate in each appeal makes the not uncommon statement: “The delay in this record being transmitted to the Court of Appeals is due to a heavy back log in the Appeals Section.” She was unable to meet the time requirements of OCGA § 5-6-43, reflecting a flaw in the court system itself which could be rectified by adequate resources and a streamlined appellate process which utilizes current technology or at least eliminates duplication. See Rewis v. Shaw, 208 Ga. App. 876 (432 SE2d 617) (1993).

       Although appellee designated this appeal as a cross-appeal, we note that OCGA § 5-6-38 (a) allows a cross-appeal to be filed within 15 days from the service of the notice of appeal. Since appellee’s notice of appeal was filed several months after appellants’ notice of appeal and from a different order, it cannot be deemed a cross-appeal but is a timely filed independent appeal.

         For a brief summary of the judicial evolution of the doctrine of sovereign immunity, see Litterilla 1, at 345-347.


author: Pope, Chief Judge.

text:
    A93A0776.
    JAMES v. THE STATE.
    (433 SE2d 700)
   Pope, Chief Judge.

Defendant was convicted of selling cocaine in violation of the Georgia Controlled Substances Act, and pursuant to OCGA § 16-13-30 (d), sentenced to life in prison. He appeals following the denial of his motion for new trial.

1. Contrary to defendant’s first enumeration of error, the trial judge properly exercised his discretion in replacing one of the selected jurors in this case with an alternate. The record shows that the juror informed the court, outside the presence of the other jurors, that she had taken offense at the testimony of a witness for the State, who testified he had seen the juror in the presence of drug dealers while working undercover. The juror told the court she was offended by being placed in the company of drug dealers and asked to be excused. Upon further questioning the juror stated that the witness had lied about her associations with drug dealers and that because this statement by the witness was untruthful, she could not believe any other testimony of the witness. The trial court clarified with the juror that she was requesting to be excused because she could no longer be fair and impartial in her deliberations. Considering the foregoing, we find no reversible error resulting from the discharge and replacement of the juror in this case. Payne v. State, 195 Ga. App. 523, 524 (2) (394 SE2d 781) (1990); Neal v. State, 160 Ga. App. 834 (2) (288 SE2d 241) (1982); OCGA § 15-12-172. Consequently, this enumeration is without merit.

Decided July 12, 1993.

Reginald L. Bellury, for appellant.

Richard A. Malone, District Attorney, William S. Askew, Assistant District Attorney, for appellee.

2. Defendant also contends the trial court should not have considered his prior conviction for the sale of cocaine in imposing sentence pursuant to OCGA § 16-13-30 (d) because such prior conviction resulted from a plea of nolo contendere. However, this court previously has sanctioned the use of convictions resulting from pleas of nolo contendere in sentencing under recidivist statutes. Miller v. State, 162 Ga. App. 730 (4) (b) (292 SE2d 102) (1982). See also OCGA § 17-10-2 (a). We thus find no merit to this enumeration.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


author: Johnson, Judge.

text:
    A93A0113.
    BAILEY v. THE STATE.
    (433 SE2d 610)
   Johnson, Judge.

Richard David Bailey appeals from his convictions of rape, aggravated sodomy and child molestation.

1. Bailey contends that the trial court erred in denying his motion for discharge and acquittal because he was not tried within the time required by his statutory demand for trial. Since Bailey was charged in a multi-count indictment with the capital offense of rape along with several noncapital offenses, the time limit within which he had to be tried upon his proper demand is that set forth in OCGA § 17-7-171 for the more serious offense. Cleary v. State, 258 Ga. 203, 205 (366 SE2d 677) (1988), overruled in part on other grounds, Mize v. State, 262 Ga. 489, 490 (1), n. 1 (422 SE2d 180) (1992); Harper v. State, 203 Ga. App. 775, 776 (417 SE2d 435) (1992). OCGA § 17-7-171 (b) provides, “If more than two regular terms of court are convened and adjourned after the term at which the demand is filed and the defendant is not given a trial, then he shall be absolutely discharged and acquitted of the offense charged in the indictment, provided that at both terms there were juries impaneled and qualified to try the defendant and provided, further, that the defendant was present in court announcing ready for trial and requesting a trial on the indictment.”

Hall County, where Bailey was tried, has four regular terms of court each year, beginning on the first Monday in May and November and on the second Monday in January and July. OCGA § 15-6-3 (26) (B). “The length of these terms is specified in OCGA § 15-6-19: The regular terms of the superior and state courts shall continue until the commencement of the next regular term, at which time they shall stand adjourned.’ ” (Emphasis in original.) Wade v. State, 258 Ga. 324, 328 (9) (368 SE2d 482) (1988). Bailey filed his demand for trial during the November term of 1991. Jurors were impaneled during the January and May terms. Bailey therefore had to be tried before the end of the May 1992 term, the second regular term of court following the term in which his demand was filed. See White v. State, 202 Ga. App. 370, 371 (414 SE2d 296) (1991). By operation of law, the May 1992 term ended on July 13, 1992, the first day of the July term. Bailey claims, however, that the court adjourned the May 1992 term prior to July 13 when it discharged that term’s jurors without subjecting them to recall. This claim is without merit.

“[U]nless the trial court expressly declares a regular term adjourned, it continues until adjourned by operation of law.” (Emphasis supplied.) Barkley v. State, 179 Ga. App. 795, 796 (348 SE2d 122) (1986). In the instant case, there is no evidence in the record that the court expressly declared the May term adjourned. The mere fact that the court released the jurors does not amount to an express adjournment of the term. On the contrary, the trial court indicated at the hearing on Bailey’s motion for acquittal that by releasing the jurors, the court did not intend to adjourn the May term prematurely. As there is no evidence that the court expressly declared the May term adjourned, it continued until adjourned by operation of law at the commencement of the following term.

The record reveals that Bailey’s trial began and jeopardy attached when the jury was selected and sworn on Friday, July 10,1992, while the May term was still in session. The trial concluded the following week, during which the July term of court began. Bailey argues that because his trial was not concluded before the end of the May term, his trial was not timely. This argument is unpersuasive. Because the sanction provided by OCGA § 17-7-171 is so extreme, absolute discharge and acquittal, the statute must be strictly construed. Day v. State, 187 Ga. App. 175, 176 (2) (369 SE2d 796) (1988). The statute states only that a defendant who has filed a proper demand must be “given a trial” within two terms after the term in which the demand is filed; it does not require the trial to be completed within that time. Such a requirement would be incongruous in that it would force trial courts to predict and strictly control the length of jury trials and it would encourage a defendant whose trial begins near the end of the statutory time limit to engage in improper delay tactics as a method of obtaining an acquittal by prolonging the trial past the end of the applicable term. We therefore hold that the statute requires only that the trial commence, not that it be concluded, within the two-term limit. As Bailey’s trial commenced before the end of the May 1992 term, his statutory demand for trial was not violated. The trial court did not err in denying Bailey’s motion for discharge and acquittal.

2. In his second enumeration of error, Bailey contends that the trial court erred in finding that his demand for trial was not properly made as to some of the charges in the indictment. Because of our decision in Division 1 of this opinion that Bailey received a timely trial as to all the charges, we need not address this enumeration.

3. Bailey argues that the court erred in overruling his challenge to the array of the jury pool on the ground that the array was improperly composed of persons originally summoned to appear at the term of court following the term in which he was tried. This argument does not mandate a reversal of Bailey’s conviction because the manner and time of summoning the jurors “are matters that go to the necessities and convenience of the court and jurors, and have no bearing on the question of affording the defendants a fair trial.” Hulsey v. State, 172 Ga. 797, 808-809 (4) (159 SE 270) (1931). Bailey’s additional claim that he was prejudiced due to the disproportionate number of elderly and unemployed jurors is without merit because he has failed to establish that either of these groups is cognizable for purposes of jury selection. See Pope v. State, 256 Ga. 195, 197 (1) (b) (345 SE2d 831) (1986).

Statutes regulating the selection, drawing, and summoning of jurors (OCGA § 15-12-1 et seq.) are intended to distribute jury duties among the citizens of the county, provide for rotation in jury service, and are merely directory. They are not intended to provide parties with an impartial jury; however, a disregard of the essential and substantial provisions of the statutes will have the effect of vitiating the array. Franklin v. State, 245 Ga. 141, 146-147 (1) (263 SE2d 666) (1980); Robinson v. State, 179 Ga. App. 616, 617 (1) (347 SE2d 667) (1986). The trial court in the instant case complied with Bailey’s trial demand by summoning jurors originally scheduled to appear at the next term of court. In so doing, the court did not disregard the essential provisions of the directory statutes concerning the selection, drawing and summoning of jurors to the extent of vitiating the array. The trial court did not err in overruling Bailey’s challenge to the array. Burney v. State, 244 Ga. 33, 37-38 (3) (257 SE2d 543) (1979).

4. Bailey’s complaint that the court erred in refusing to allow sequestered individual voir dire is without merit. “Sequestered voir dire is not mandated by OCGA § 15-12-133 . . . , which provides for individual examination of jurors. The granting of sequestered voir dire is within the discretion of the court, and a showing of prejudice from denial is necessary to show an abuse of discretion. [Cits.]” Sanborn v. State, 251 Ga. 169, 170 (3) (304 SE2d 377) (1983). Bailey has shown no prejudice from the court’s ruling. Stevens v. State, 247 Ga. 698, 700-701 (2) (278 SE2d 398) (1981); Bradley v. State, 182 Ga. App. 719, 720 (2) (356 SE2d 753) (1987).

5.. Bailey contends that the trial court erred in admitting evidence of similar transactions. Bailey argues that the offenses described in paragraph four of the State’s notice of its intent to present similar transaction evidence were too indefinite to allow him to prepare a defense to those offenses. We cannot consider this argument because “enumerations may not be enlarged by brief on appeal to cover issues not contained in the original enumeration.” (Citations and punctuation omitted.) Loyd v. State, 202 Ga. App. 1, 2 (1c) (413 SE2d 222) (1991). Even if we could consider the argument, it is specious. The paragraph of the State’s notice complained of provides, “the defendant made numerous sexual advances and assaults toward [the victim] which involved the defendant’s fondling and attempting to fondle her on her legs, arms, breasts, and vaginal area.” This description of the offenses is sufficiently specific to inform Bailey what he was charged with and it reveals the information possessed by the State. “ ‘(I)n revealing to appellant the information which it had, the prosecution complied with (Uniform Superior Court) Rule 31.3.’ [Cit.]” Parcell v. State, 198 Ga. App. 439, 440 (1) (401 SE2d 628) (1991).

Bailey also argues that the court improperly allowed the victim to give similar transaction testimony about various instances of sexual abuse by him prior to testifying about the offenses charged in the indictment. Bailey’s reliance on Gilstrap v. State, 261 Ga. 798 (410 SE2d 423) (1991), in support of this argument is misplaced. In that case, the Supreme Court found that the trial court’s decision to allow the State to introduce evidence of nine similar transactions from witnesses other than the victim before introducing any evidence concerning the crimes charged raised a substantial possibility that the jury could have settled upon the defendant’s guilt based solely on the similar transaction evidence. Gilstrap, supra at 799 (2). In the instant case, the testimony objected to came only from the victim and not other witnesses. It is a mischaracterization of her testimony to claim that all of her similar transaction testimony came before she testified about the crimes charged. Instead, she testified about similar transactions both before and after testifying about the crimes charged. For the most part, the victim’s direct testimony was a chronological description of sexual abuse by Bailey, her stepfather, over a period of approximately nine years. This chronological presentation of her claims does not raise a substantial possibility that the jury could have settled upon Bailey’s guilt based solely on the similar transaction evidence. This is especially true in light of the fact that the trial judge, during the victim’s testimony, instructed the jury on the limited purpose of similar transaction evidence and that Bailey was on trial only for the crimes charged in the indictment, not the alleged similar transactions.

“[T]he order of proof is within the discretion of the trial court and will not be disturbed absent abuse. [Cit.]” Avery v. State, 174 Ga. App. 116, 117 (2) (329 SE2d 276) (1985). In Gilstrap, “the Supreme Court expressly declined to determine the limits on the trial court’s discretion as to the order of the admission of evidence.” Charo v. State, 206 Ga. App. 297, 298 (1) (424 SE2d 900) (1992). Here, the trial court did not abuse its discretion in allowing the victim to testify in chronological order about her abuse even though such a presentation resulted in the admission of some similar transaction evidence prior to the evidence on the crimes charged. “The rule allowing the admission of similar transaction evidence is usually applied more liberally with evidence of prior attempts by the accused to commit the same crime upon the victim of the offense for which he stands charged. Certain otherwise inexplicable assaults, such as occur in a series of incidents of wife or child abuse, particularly lend themselves to this exception to the ‘other offenses’ rule on questions of both identity and motive.” (Citations and punctuation omitted.) Parcell v. State, supra at 439-440 (1); Hall v. State, 186 Ga. App. 830, 831 (2) (368 SE2d 787) (1988). The trial court committed no error in allowing the victim’s similar transaction testimony.

6. Bailey claims that the court erred in denying his motion for a mistrial when the State cross-examined him about a pretrial statement he had made. Following Bailey’s objection and motion for a mistrial, the court instructed the jury to completely disregard the statement. After the curative instructions, Bailey did not renew his objection or motion for a mistrial and he did not request further instructions by the court. The motion therefore was not preserved for appellate review. Schirato v. State, 260 Ga. 170, 172 (5) (391 SE2d 116) (1990). Even if the enumerated error had been properly preserved, it is deemed abandoned because Bailey has not supported it in his brief by citation of any authority. Court of Appeals Rule 15 (c) (2).

Decided June 16, 1993 —

Reconsideration denied July 13, 1993 —

William I. Sykes, Jr., Susan D. Brown, for appellant.

C. Andrew Fuller, District Attorney, William M. Brownell, Jr., Assistant District Attorney, for appellee.

7. Bailey’s complaint that the court erred in refusing to give his requested instruction to the jury that child molestation is a lesser included offense of the rape charge is without merit. Even if we assume that child molestation is a lesser included offense of the rape charge, “[i]t is not error to fail to charge the lesser included offense if the jury would be unauthorized to return that verdict based on the evidence. [Cit.]” Watson v. State, 235 Ga. 461, 466 (5) (219 SE2d 763) (1975); Brooks v. State, 197 Ga. App. 194, 195 (1) (397 SE2d 622) (1990). Here, the victim gave testimony specifically describing the rape. Bailey absolutely denied committing the rape or any other sexual act with the child. The jury therefore was only authorized to find Bailey either guilty or not guilty of the rape charge; there was no evidence authorizing the jury to return a guilty verdict on child molestation as a lesser included offense of rape. OCGA § 16-6-4 (a). The trial court did not err in refusing to give Bailey’s requested jury charge. Mosley v. State, 187 Ga. App. 70, 71 (2) (369 SE2d 345) (1988); Roman v. State, 185 Ga. App. 32, 34-35 (3) (363 SE2d 329) (1987).

Judgment affirmed.

Blackburn and Smith, JJ., concur.

       The jury also found Bailey guilty of statutory rape, incest and two counts of aggravated child molestation. The trial court ruled that these offenses merged with the offenses from which Bailey appeals.

       OCGA § 17-7-170 provides the time limit within which a defendant who has filed a proper trial demand must be tried for noncapital offenses.

       The federal speedy trial act similarly provides that “the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment.” (Emphasis supplied.) 18 USCA § 3161 (c) (1).


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

text:
    A93A0162.
    JOHNSON v. THE STATE.
    (433 SE2d 638)
   Johnson, Judge.

Anthony Dean Johnson was convicted of driving under the influence of alcohol and no proof of insurance. He appeals from his conviction.

1. Johnson contends that the trial court erred in admitting the results of his intoximeter test. He argues that despite his demand for scientific reports pursuant to OCGA § 17-7-211, he was provided with a copy of the intoximeter results only two days prior to trial. “When a written scientific report is furnished late, the appropriate remedy is for the trial court to grant a continuance or recess upon timely request by the defendant.” Shannon v. State, 205 Ga. App. 831, 832 (1) (424 SE2d 51) (1992). When the case was called for trial, Johnson moved for a continuance, indicating that one day would be sufficient. The trial court denied the request for a one-day continuance, but granted a one-hour continuance. “The grant or denial of a motion for continuance is within the sound discretion of the trial court, OCGA § 17-8-22, and will not be disturbed absent a showing of abuse of that discretion. ... As appellant has not shown how additional time would have benefitted him or how the lack of time harmed him, we find no abuse of discretion in the trial court’s denial of the motion for continuance.” (Citations and punctuation omitted.) Robinson v. State, 202 Ga. App. 576, 577 (2) (a) (415 SE2d 21) (1992).

Additionally, the officer who administered the test informed Johnson of the results immediately after it was administered, although it is not clear from the record if he provided Johnson with a copy of the report. The accusation, served on Johnson four months prior to trial, stated that he was charged with driving with a blood-alcohol level of .13, the reading of the intoximeter. In Ratliff v. State, 207 Ga. App. 112 (427 SE2d 85) (1993), this court held that the notation of the intoximeter test results on the traffic citation was sufficient to give defendant notice of the result, even if he did not receive a copy of the intoximeter test results itself. Because Johnson had the information contained on the intoximeter report, the trial court did not err in admitting the results of the test.

2. The arresting officer testified that the insurance card Johnson presented to him was expired and had been altered. He also explained the absence of the card at trial, stating that he returned the card to Johnson at the jail. In his second enumeration of error, Johnson asserts the trial court erred in allowing testimony concerning the card as it violated the best evidence rule. OCGA § 24-5-4 (a) provides: “The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.” Whether to accept the explanation of the absence of the document is a determination that lies within the discretion of the trial court. Croxton v. Leggett Motor Rebuilding, 168 Ga. App. 258, 259 (308 SE2d 640) (1983). Particularly in light of Johnson’s own admission at trial that he did not have an insurance card because he paid for insurance in installments, we do not find that the trial court abused its discretion in allowing the officer’s testimony without producing the card itself.

Judgment affirmed.

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

Beasley, Presiding Judge,

concurring specially.

I concur in affirmance of the judgment. However, the denial of a one-day continuance was an abuse of discretion. The reason is that defendant was by law entitled to the report ten days before trial, OCGA § 17-7-211, and his continuance request was a reasonable one. The State did not show that a one-day delay, caused by its own delinquency, would jeopardize the presentation of its case.

The “notice” that the State intended to prove the blood-alcohol level of .13, either in the citation or by the officer orally, is not the scientific report which the State must produce under the Code. Neither “notice” was a substitute for the report, nor did it excuse or ameliorate the failure to comply with the statute.

Nevertheless, the error was moot because defendant had a one-day continuance in effect, due to the mistrial.

Blackburn, Judge,

concurring in part and dissenting in part.

I concur with Division 2 of the majority opinion, but I must respectfully dissent from Division 1 which finds that the trial court’s grant of a one-hour continuance did not constitute an abuse of discretion.

In this case, despite the appellant’s timely demand for a copy of his intoximeter test results, the state failed to provide him with such until two days before trial. It is uncontroverted that the state either had possession of or access to the report at least ten days before the trial. The state’s tardiness in furnishing the appellant with the copy of his intoximeter test results thus constituted a clear violation of OCGA § 17-7-211.

As noted by the majority opinion, when the state provides a scientific report tardily, the appropriate remedy is for the trial court to grant a continuance or recess upon the timely request for such by the defendant. Shannon v. State, 205 Ga. App. 831 (1) (424 SE2d 51) (1992). The appellant did just that here, but in granting him only a one-hour delay, the trial court eviscerated that remedy. In short, although the appellant played by the rules codified at OCGA § 17-7-211 and previously pronounced by this court, neither the state nor the trial court did.

Under OCGA § 17-7-211 (b), the state must produce the scientific report at least ten days before the trial, if the defendant demands a copy and if the report is in the possession of or available to the state. Inasmuch as the statute gives a defendant the right to have a scientific report at least ten days before trial in such a situation, it would appear that where a scientific report is furnished to the defendant less than ten days before trial, there should be no room for denying a defendant, upon demand for such, a continuance equalling at least the number of days the state was late in providing him with the report. To allow otherwise converts a statutory right into a discretionary matter with the trial court.

Decided June 23, 1993 —

Reconsideration denied July 13, 1993 —

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

Jerry Rylee, Solicitor, Graham McKinnon IV, Assistant Solicitor, for appellee.

I find the majority opinion’s reliance upon Ratliff v. State, 207 Ga. App. 112 (427 SE2d 85) (1993), to be misplaced. Ratliff addressed the admissibility of the intoximeter test results where the state failed to provide the defendant with a copy of the printed intoximeter test result, and not whether a continuance was appropriate where such a report had been provided tardily. Further, Ratliff s applicability may be questionable because it relies upon Johnson v. State, 174 Ga. App. 579 (330 SE2d 791) (1985), which did not involve a scientific report within the meaning of OCGA § 17-7-211.

In summary, because the state failed to furnish the appellant with a copy of his intoximeter test results within ten days of the trial as required under OCGA § 17-7-211, the appellant was entitled to a continuance to allow him adequate time to respond to the report. The fact that the appellant was informed of the test result on the uniform traffic citation issued to him should not obviate his rights derived from that statute.

The appellant’s request for a one-day continuance in this case was quite reasonable as he was entitled to the full ten days provided by statute. If the state cannot comply with the statute, the trial should be continued until it can without the necessity of any showing of harm by the defendant. Rather than constituting an acceptable exercise of discretion, the trial court’s grant of a one-hour delay instead made a mockery of the appellant’s right to a continuance, and I cannot concur with the majority opinion’s approval of it.

       We note that a jury was impaneled and the trial began. During the lunch recess one of the jurors indicated that she would be unable to render a verdict in the case. A mistrial was declared and the case was continued until the next morning. Even though Johnson’s request for a day’s continuance was denied by the trial judge it was granted by circumstance.


author: Andrews, Judge.

text:
    A93A0180.
    WILLEY v. THE STATE.
    (433 SE2d 674)
   Andrews, Judge.

Willey was convicted of one count each of kidnapping, armed robbery, aggravated assault, rape, and possession of a knife during the commission of a felony. Additionally, under the sixth count, he was sentenced as a recidivist.

1. Considering first the fourth enumeration, which addresses the sufficiency of the evidence regarding the crime of rape, we find no error. Viewed in favor of the jury’s verdict, the evidence showed, and defendant acknowledged, that he forced himself into the car with the victim as she was leaving her job at a shopping center. He was in possession of both a steak knife and a Swiss army knife. He forced the victim to drive to a secluded area. At that point, he forced the victim into the reclining seat of the automobile and sexually assaulted her. Defendant acknowledges all of these acts, contending, with regard to the rape, only that penetration was not achieved. The victim testified that, although Willey encountered some difficulty, penetration was achieved repeatedly. Her testimony was buttressed by the scientific testimony regarding the finding of sperm on the slides contained in the rape kit taken from the victim. “ ‘ “On appeal, our review is restricted to the legal sufficiency of the evidence, not the weight of the evidence.” [Cit.]’ [Cit.] . . . The jury was authorized to reject [appellant’s] testimony and accept the victim’s . . . testimony. [Cit.] Further, we have reviewed the transcript and find sufficient evidence to authorize the jury’s findings that [appellant] was guilty beyond a reasonable doubt, of the offense of [rape]. . . . [Cits.]” Cook v. State, 198 Ga. App. 886, 887 (1) (403 SE2d 872) (1991); Brady v. State, 207 Ga. App. 451 (1) (428 SE2d 373) (1993).

2. The second enumeration claims error in the trial court’s refusal to allow Willey an expert witness for purposes of investigating DNA evidence.

Trial counsel did file a motion for the appointment of such an expert on June 3, 1992. The premise for the motion was that DNA typing had been used to identify Willey as the perpetrator of the rape. Defense counsel had been provided with a copy of the Georgia Crime Lab DNA report.

At the first day of trial, June 8, 1992, a statement on the record was made by trial counsel for defendant indicating he understood the court’s ruling that his motion for appointment of an expert need not be reached at that point due to the fact that the State was not intending to introduce evidence regarding the DNA typing procedures. Nonetheless, counsel did not withdraw that motion nor, during that discussion with the court, did counsel further demand that an expert be appointed to analyze the evidence. No such DNA evidence was introduced during the course of the trial.

It is true that “[a] criminal defendant is entitled at his expense on motion timely made to have an expert of his choosing examine critical evidence which may be subject to varying expert opinion. Sabel v. State, 248 Ga. 10 (282 SE2d 61) (1981).” Denison v. State, 258 Ga. 690, 691 (2) (373 SE2d 503) (1988). Here, however, since the witness positively identified Willey as the person who attacked her, he admitted that he was present, took money from her, assaulted her, and was cut on the arm by the victim as they struggled for the knife, it is unclear how the DNA evidence was “critical” evidence concerning his guilt or innocence. See Harrison v. State, 201 Ga. App. 577, 580 (1) (411 SE2d 738) (1991). There was no error in the court’s denial of this motion.

3. The third enumeration is that the court erred in allowing the State’s serologist to give her “conclusion as to the ultimate issue of penetration.”

In response to the question by the State as to what conclusion the presence of spermatozoa in the rape examination kit led her, the serologist stated that her conclusion was that “sexual intercourse took place for those spermatozoa to be present.” No objection to this testimony was made at trial. “Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. [Cit.]” Fancher v. State, 190 Ga. App. 438, 439 (1) (378 SE2d 923) (1989); Johnson v. State, 204 Ga. App. 277 (1) (419 SE2d 118) (1992).

4. In his first enumeration, Willey contends the court failed to conduct a pre-sentence investigation pursuant to OCGA § 17-10-2 (a). The record reveals, however, that the court did inquire of Willey and his counsel after the jury had been excused if they were ready to proceed with sentencing. Counsel responded in the affirmative and the court gave every available opportunity to introduce evidence. There was no error. Thompson v. State, 195 Ga. App. 18, 21 (3) (392 SE2d 732) (1990).

5. Finally, Willey contends that his trial counsel rendered ineffective assistance.

Appellate counsel did not represent Willey at the trial of the case. On June 29, 1992, a motion for new trial on the general grounds was filed by trial counsel. On July 14 appellate counsel was appointed by the court for purposes of this appeal. On August 5, 1992, appellate counsel filed a motion for continuance of the hearing on the motion for new trial which was granted for a period of 20 days. The order denying the motion for new trial, after hearing, was entered on August 27, 1992. No transcript of that hearing has been provided for purposes of appeal and the first mention of the effectiveness of counsel issue is that contained in the enumeration of error and brief. No amendment to the motion for new trial, as provided for in OCGA § 5-5-40 (b), was made below.

Decided June 28, 1993 —

Reconsideration denied July 13, 1993.

Albert F. Burkhalter, Jr., for appellant.

Stephen F. Lanier, District Attorney, Fred Simpson, Assistant District Attorney, for appellee.

Under these circumstances, it is apparent that Willey has failed to raise this issue at the earliest practical moment so as to preserve the issue for our review. Van Alstine v. State, 261 Ga. 819 (2) (413 SE2d 735) (1992); Ponder v. State, 260 Ga. 840, 841 (1) (400 SE2d 922) (1991); see Maxwell v. State, 262 Ga. 541, 542 (3) (422 SE2d 543) (1992).

Judgment affirmed.

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

       Pretermitting the waiver of this objection, it is noted that such evidence was admissible. State v. Butler, 256 Ga. 448, 450 (2) (349 SE2d 684) (1986).


text:
    A93A0221, A93A0222.
    SOUTHERN CELLULAR TELECOM et al. v. BANKS; and vice versa.
    (433 SE2d 606)
   Johnson, Judge.

These cases are related to Southern Cellular Telecom v. Banks, 208 Ga. App. 286 (431 SE2d 115) (1993). The four cases arose from a trial in the Superior Court of Fulton County. The issue presented in these two appeals is whether the trial court erred in its determination of the amount of an award of attorney fees.

Nancy Banks filed a ten-count complaint against Southern Cellular Telecom (SCT) and its president, Edward Grenvicz. Banks’ fraud claim was the only claim of the ten to survive the defendants’ motions for summary judgment and directed verdict. On this single remaining claim, the jury returned a verdict in favor of Banks, awarding general damages, punitive damages, and attorney fees. Prior to the submission of the case to the jury, the parties stipulated that if the jury determined that Banks was entitled to recover attorney fees and expenses of litigation, the court rather than the jury would determine the amount of such fees and expenses. After an initial hearing to determine the amount, the court concluded that Banks had not adequately distinguished between the time her attorneys spent on her various unsuccessful claims and the time attributable solely to her successful claim. The court allowed Banks several days to submit edited time records. The documentation Banks then submitted consisted of affidavits of her attorneys, time sheets, and a copy of a contingent fee agreement between herself and her attorneys. The court apparently found this evidence to be adequate, and it entered an order fixing the amount of the award at $95,067 in attorney fees; $5,765.99 in accounting expenses; $1,150 in paralegal fees; and $39,308.34 in other actual expenses. The defendants appeal from the court’s order, and Banks cross-appeals.

Case No. A93A0221

In their sole enumeration of error, the defendants contend that the amount of the attorney fees awarded by the trial court was not supported by sufficient evidence. We agree. “An award of attorney fees is unauthorized if [the plaintiff] failed to prove the actual costs of the attorney and the reasonableness of those costs. [Cit.]” Fiat Auto U.S.A. v. Hollums, 185 Ga. App. 113, 116 (5) (363 SE2d 312) (1987). Banks submitted time sheets for work which her attorneys performed in connection with the entire case. Many of the time entries consist of a simple statement that a conference was held, a letter was written, a telephone call was made or research was conducted. Such broad statements fail to demonstrate the function or substance of the task with sufficient particularity to permit the court to distinguish between time and expenses attributable to the successful fraud claim and time and expenses attributable to her other unsuccessful claims.

We recognize the trial court’s dilemma in attempting to determine with specificity the amount of attorney fees, given the nature of the documents and other evidence provided. This evidence did not provide a sufficiently narrow basis for such a determination. Nor did the process of allowing Banks to submit edited time records and affidavits adequately afford SCT’s attorneys the opportunity to cross-examine Banks’ attorneys either on the issues of reasonableness and value or on the allocation of time and expenses among the various claims. A determination of the amount of an award of attorney fees cannot be based on guesswork. See generally Wahnschaff Corp. v. O. E. Clark Paper Box Co., 166 Ga. App. 242, 244 (2) (304 SE2d 91) (1983). While we are convinced that the trial court mightily endeavored to determine the correct amount from the evidence, rather than basing all or any part of the award upon speculation, we conclude that the state of the evidence was insufficient to support the award made.

Because Banks failed to prove the value of her attorney fees on her successful fraud claim with the requisite degree of certainty, the trial court’s judgment as to those fees must be vacated. The case is remanded for an evidentiary hearing to establish the amount of attorney fees related solely to the prevailing claim Banks is entitled to recover.

Decided June 11, 1993 —

Reconsideration denied July 13, 1993.

Hurt, Richardson, Garner, Todd & Cadenhead, Henry D. Fellows, Jr., Martha L. McGhee-Glisson, Hunton & Williams, Kevin A. Ross, for appellants.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, C. James Jessee, Jr., Charney K. Berger, L. Matt Wilson, for appellee.

Case No. A93A0222

1. The trial court concluded in its order that “an award of attorney fees and expenses of litigation cannot be based upon a contingent fee basis as a matter of law.” Banks argues that the court erred in refusing to consider the contingent fee agreement as the sole basis for determining the amount of attorney fees she was entitled to recover. We disagree.

It is well-settled that an award of attorney fees is to be determined upon evidence of the reasonable value of the professional services which underlie the claim for attorney fees. See Rivergate Corp. v. BCCP Enterprises, 198 Ga. App. 761, 762 (403 SE2d 65) (1991). A court may consider a contingent fee agreement and the amount it would have generated as evidence of usual and customary fees in determining both the reasonableness and the amount of an award of attorney fees. See Walther v. Multicraft Constr. Co., 205 Ga. App. 815, 816 (3) (423 SE2d 725) (1992). However, the court’s conclusion that it was not bound, and could not as a matter of law be bound, by the contract between the parties was legally sound and reaffirms a principle long accepted by the courts of this state. See Hercules Automotive v. Hayes, 194 Ga. App. 135, 137 (4) (389 SE2d 571) (1989); First Bank of Clayton County v. Dollar, 159 Ga. App. 815, 817 (4) (285 SE2d 203) (1981); see also Old Equity Life Ins. Co. v. Barnard, 120 Ga. App. 596, 597 (6) (171 SE2d 636) (1969) (for the proposition that a contingent fee may or may not be reasonable). It was not error for the court to determine the amount of the award of attorney fees on the basis of hourly rates.

2. In view of our holding in Division 1, we need not reach Banks’ remaining enumeration of error.

3. Banks’ motion for supersedeas bond is denied.

Judgment in Case No. A93A0221 is reversed and case remanded with direction. Judgment in Case No. A93A0222 is affirmed.

Blackburn and Smith, JJ., concur.


text:
    A93A0225.
    THE STATE v. STORY. THE STATE v. SMITH. THE STATE v. CLARK. THE STATE v. BAILEY. THE STATE v. VINCENT.
    A93A0226.
    A93A0227.
    A93A0228.
    A93A0229.
    (433 SE2d 599)
   Andrews, Judge.

These appeals arise from the trial court’s dismissal of six unconnected DUI cases. One of the six defendants has died and only five of the cases remain for our consideration.

Case Nos. A93A0226, A93A0227, A93A0228, A93A0229

The pertinent facts for these four cases are the following: Case No. A93A0225 is dealt with below. In each of these four cases, the defendant was charged with DUI. Smith and Clark were charged on September 14, 1990; Bailey was charged on September 22, 1990; and Vincent was charged on September 23, 1990.

Each defendant filed a motion to transfer the case from recorder’s court to Coffee County State Court and to have a trial by jury — Smith on September 18, 1990; Clark, Bailey and Vincent filed their motions on September 25, 1990. The motions were granted and each case transferred to Coffee County State Court — Smith’s on September 25, 1990; Clark’s, Bailey’s and Vincent’s on October 12, 1990. Though not clear from the record, at some point in 1992, defendants withdrew their requests for jury trials and requested non-jury trials.

The cases were called for a non-jury trial on June 11, 1992. On that date, each defendant pled guilty to the reduced charge of public drunkenness.

Thereafter, the State filed a motion to arrest judgment or to set aside the judgment. The court held a hearing on that motion and granted the motion on August 18, 1992, nunc pro tunc July 27, 1992. The transcript reveals that after granting the motion, the court asked if defendants had any motions. Appellee Smith’s attorney moved that the case be dismissed for failure to have a speedy trial and the other three defendants adopted the same motion.

The court granted the motions. In its orders, dated August 18, 1992, nunc pro tunc for July 27, 1992, the court dismissed the actions, citing Ga. Const. 1983, Art. I, Sec. I, Par. XI.

The State enumerates two errors. Because the second enumeration appears dispositive, we will address it first. In that enumeration, the State argues that the trial court erred in granting appellees’ motion to dismiss for lack of a speedy trial. Because the trial court’s order specifically invokes the constitutional speedy trial provisions, and because the statutory provisions of OCGA § 17-7-170 are not at issue here, we address this issue solely from the constitutional perSp6CtlV6

“ ‘In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) ((1972)), the Supreme Court of the United States identified four factors which it stated the court should weigh in balancing the conduct of the prosecution and the defendant on the issue of the denial of the constitutional right to a speedy trial. These four factors are: (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant.’ ” See Lynott v. State, 198 Ga. App. 688, 691 (8) (402 SE2d 747) (1991); State v. Weeks, 136 Ga. App. 637 (2) (222 SE2d 117) (1975). “The basis for the development of the highly subjective, flexible approach in Barker, is that the defendant is held to have some responsibility to assert a speedy trial claim . . . even though it is the state’s duty to bring him to trial . . . ; and that unlike other constitutional rights, both society and the individual criminal defendant have a potential interest in either having a speedy trial or delaying any trial.” State v. Lively, 155 Ga. App. 402, 404 (270 SE2d 812) (1980).

In evaluating the first factor here, the length of the delay, we must first evaluate the effect of the trial court’s granting of the State’s motion to arrest judgment on July 27, with respect to the June 11, 1992 “final dispositions” of the cases. As stated above, the cases were docketed in Coffee State Court in September and October 1990. In order to determine the time frame for evaluating the speediness of defendants’ trial, it is necessary to ascertain the effect of the entry of the judgments of June 11,1992, in light of the trial court’s subsequent grant of the motion to arrest judgment.

We are unable to locate any case law precisely on point. In Ramirez v. State, 196 Ga. App. 11 (2) (395 SE2d 315) (1990), the defendant filed a demand for trial pursuant to OCGA § 17-7-170 and was timely tried, but his conviction was reversed on appeal. The issue in Ramirez was whether the defendant had to be retried in the same number of days as remained for the original trial or whether discharge and acquittal for lack of prosecution was proper.

Although Ramirez addressed the statutory provisions of OCGA § 17-7-170, the case offers guidance here. The court stated that the statute was “ ‘enacted to implement the (state) constitutional provision for a speedy trial ... (so that) the accused might (not) suffer uncertainty, emotional stress, and the economic strain of a pending prosecution indefinitely. . . .’ [Cit.] Of necessity, it affords the State a reasonable time frame in which to prepare and try its case against the accused. This would be no less true in a retrial after reversal on appeal. The State is able and obligated to try the case only during periods when the court has jurisdiction of it.” Id.; see also Dennis v. Grimes, 216 Ga. 671 (118 SE2d 923) (1961); compare Geiger v. State, 25 Ga. 667 (1858); Brown v. State, 85 Ga. 713 (11 SE 831) (1889).

Applying the pragmatic concerns of Ramirez to this case, and applying the Barker v. Wingo considerations, we must factor into our analysis of the constitutional right to a speedy trial, the fact that some of the time period between September or October 1990 and July 27, 1992, was involved in the granting of the motion to arrest judgment and that the case was an inactive one for more than one month. The practical realities facing the trial court upon granting such a motion make it infeasible to immediately retry the case in some situations. Here, the delay of 22 months was shortened by the period during which the case was inactive, and the delay was, at most, 21 months.

The second consideration under Barker v. Wingo is the reason for the delay. Although we find that the State was responsible for filing the motion to arrest judgment, there is also evidence that the State attempted to have the cases set for trial prior to June 11, 1992. There is no evidence of any action by the State which evidences an intent to delay the proceedings.

The third factor for consideration is the defendants’ assertion of their right to a speedy trial. Although the defendants asserted their right to a jury trial in September 1990, there was no reference to a speedy trial until their oral motion at the July 27, 1992 hearing. There is no mention anywhere in the record of the time period within which the defendants wished to be tried. “ ‘Whether and how a defendant asserts his right is closely related to the other factors we have mentioned.’ ” Crapse v. State, 180 Ga. App. 321, 324 (1) (349 SE2d 190) (1986), citing Barker v. Wingo, supra.

Our fourth and final consideration under Barker is prejudice to the defendants. This factor means a showing of actual, substantial prejudice to the defendant and a showing that the delay was oppressive. State v. Lively, supra; Crapse, supra; Redd v. State, 261 Ga. 300 (404 SE2d 264) (1991). Here, at the hearing, there was no evidence that the defendants had been prejudiced as a result of the delay. They were not in prison pending the resolution of the charges, and in fact, at the hearing the defendants did not even assert that they had been prejudiced by the delay in the trial.

Decided June 8, 1993 —

Reconsideration denied July 13, 1993.

Rebecca L. Sims, for appellant.

Lonnie E. Story, pro se (case no. A93A0225).

C. Jerome Adams, for appellee (case no. A93A0226).

Starling & Starling, Donald A. Starling, for appellees (case nos. A93A0227, A93A0228, A93A0229).

Balancing all of these factors, we find that there was no denial of defendants’ constitutional right to a speedy trial. Accordingly, we reverse the trial court’s dismissal of these four cases. Because of this conclusion, we need not address the State’s first enumeration concerning defendants’ oral presentation of the motion to dismiss.

Case No. A93A0225

Although this case was grouped with the cases above before the trial court, it is distinguishable for purposes of this appeal. On August 11, 1990, defendant Story was charged with driving under the influence of alcohol, driving with a suspended license, driving without a safety belt, and driving with no proof of insurance. He never filed any type of demand for trial.

On June 11, 1992, along with the appellees above, Story, proceeding pro se, was tried without a jury and convicted of driving without a safety belt and driving without proof of insurance. Additionally, as with the other defendants, the charge against him for driving under the influence was reduced to a charge of public drunkenness.

At the July 27 hearing, discussed above, it appears that Story was unrepresented. Thus the court on its own motion, dismissed the case against Story along with the cases above.

In its sole enumeration of error in this case, the State contends that the trial court erred by dismissing the case for lack of a speedy trial on its own motion. For the reasons set out above, we agree that the trial court erred in dismissing the action. Because of our conclusion, we need not address the arguments regarding the procedural propriety of the trial court’s motion.

Judgments reversed.

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

       The demands which defendants filed were simply for a jury trial and there was no reference to OCGA § 17-7-170, nor was there a request for a “speedy trial.” See Verscharen v. State, 188 Ga. App. 746 (374 SE2d 349) (1988). The demands did not mention a time frame at all and did not constitute demands for speedy trial sufficient to invoke the provisions of OCGA § 17-7-170. See Cummins v. State, 202 Ga. App. 155 (413 SE2d 773) (1991); Howard v. State, 200 Ga. App. 188 (7) (407 SE2d 769) (1991). Further, neither the trial court’s order, nor the parties’ arguments involve the provisions of OCGA § 17-7-170 and our analysis is limited to a constitutional one.


author: McMurray, Presiding Judge.

text:
    A93A0306.
    HOWARD v. BANK SOUTH, N.A.
    (433 SE2d 625)
   McMurray, Presiding Judge.

Bank South, N.A., brought an action against Norris Howard and Laron Allen to recover over $2 million under 1985 and 1988 guaranties securing a line of credit to a wholesale wood supply business known as The Pine Connection, a corporation owned by Howard and Allen. Howard denied execution of the 1985 guaranty and admitted execution of the 1988 guaranty, but defended alleging that a release and discharge resulted because the 1988 guaranty was fraudulently induced and liability thereunder grossly inflated by unscrupulous activities of Bank South executive officers (Defenses 2 and 3); that Bank South acted in a commercially unreasonable manner in disposing of The Pine Connection collateral (Defense 5); that Bank South is estopped from enforcing the 1988 guaranty because it intentionally breached the underlying financing agreement for the purpose of putting The Pine Connection out of business (Defense 6); that there was a failure of consideration for the 1988 financing agreement (Defense 7); that a settlement between Bank South and The Pine Connection constitutes an accord and satisfaction or set-off of The Pine Connection debt (Defenses 8 and 9) and that Bank South’s failure to manage its executive officers and accounts in good faith resulted in the unscrupulous conduct which inflated liability under the 1988 guaranty (Defense 10). Howard filed a cross-claim against Allen alleging he conspired with Bank South (primarily with Bank South Vice President Charles Paris) to defraud Howard and inflate The Pine Connection’s debt. Howard also counterclaimed, alleging that Bank South committed fraud via authorization and ratification of its officers’ fraudulent activities (Count 1); that Bank South wrongfully set-off a portion of The Pine Connection debt with proceeds from a specially designated payroll account of another business owned by Howard (Count 2) and that Bank South violated Georgia’s Racketeer Influenced & Corrupt Organizations (“RICO”) Act.

Bank South filed several motions, including a motion to dismiss for failure to state a claim. After considering the pleadings, motions and hearing argument of counsel, the trial court entered an order expressly determining that there was no just reason for delay and directing entry of final judgment dismissing Howard’s counterclaims and striking all of the affirmative defenses except the assertion that Bank South had acted in a commercially unreasonable manner. The trial court also granted Bank South’s motion to sever the trial of Howard’s cross-claim against Allen, and struck his demand for trial by jury. Howard now appeals. Held:

1. In enumerations 1, 2, 3, 4, 5 and 6, Howard contends the trial court erred in striking his second, third, tenth, sixth, seventh, eighth and ninth defenses to Bank South’s complaint and in enumerations 1, 8 and 9 Howard contends the trial court erred in dismissing all three counts of his counterclaim. We agree.

There is no indication in the trial court’s order dismissing Howard’s defenses and counterclaims that any evidence was considered or that there was a hearing on the merits based on material undisputed facts. “Accordingly, the only basis upon which this dismissal order could be predicated would be dismissal for failure to state a claim pursuant to OCGA § 9-11-12 (b), or judgment on the pleadings pursuant to OCGA § 9-11-12 (c). ‘The CPA abolished “issue pleading,” substituted in lieu thereof “notice pleading,” and directs that “all pleadings shall be so construed as to do substantial justice.” (Cits.) “Under the CPA, a pleading should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” (Cits.)’ Dillingham v. Doctors Clinic, 236 Ga. 302 (223 SE2d 625) (1976). See also Sheppard v. Yara Engineering Corp., 248 Ga. 147, 149, 150 (281 SE2d 586) (1981).” Jones v. Phillips, 183 Ga. App. 11 (357 SE2d 853). In fact, “ ‘(t)he granting of a motion for judgment on the pleadings under (OCGA § 9-11-12 (c)) is proper only where there is a complete failure to state a cause of action or defense. “For the purposes of the motion, all well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false.” (Cits.)’ Pressley v. Maxwell, 242 Ga. 360 (249 SE2d 49) (1978).” Bacon v. Liberty Mut. Ins. Co., 198 Ga. App. 436 (401 SE2d 625).

In the case sub judice, Howard asserts exhaustive facts in his motions and pleadings which, upon proof, may or may not support his defenses and counterclaims. This Court simply cannot speculate that such evidence exists. It is therefore sufficient to say that we cannot determine, beyond doubt, that no set of facts exist which authorize Howard’s defenses and counterclaims. Consequently, the trial court’s order dismissing Howard’s defenses and counterclaims must be reversed with regard to the striking of Howard’s second, third, tenth, sixth, seventh, eighth and ninth defenses and the dismissal of Howard’s counterclaim.

2. In his seventh enumeration, Howard contends the trial court erred in dismissing his eleventh defense. We agree. Howard’s eleventh defense is simply an exercise of his right to admit and deny the allegations of Bank South’s complaint. See Knickerbocker Tax Systems v. Texaco, 130 Ga. App. 383, 384 (2) (203 SE2d 290).

3. In his tenth enumeration, Howard contends the trial court erred in severing his cross-claim against Allen from Bank South’s claims on the guaranties.

Although the question of severance is generally a matter of discretion for the trial judge, Tennessee Farmers Mut. Ins. Co. v. Wheeler, 170 Ga. App. 380 (2), 382 (317 SE2d 269), neither this Court nor the trial court can make a full and fair determination of the need for severance until the validity (substance) of Howard’s defenses and claims have been fully developed. See Division 1 of this opinion. Consequently, the trial court erred in prematurely granting Bank South’s motion for severance.

4. Howard contends the trial court erred in striking his demand for jury trial, arguing that language in the 1988 guaranty agreement expressly waiving his right to a jury trial is void because the guaranty was fraudulently induced and because the waiver does not specifically apply to Howard’s claims against Bank South for fraud and violation of the Georgia RICO Act.

“The Constitution of Georgia as well as the Civil Practice Act guarantee the right of a jury trial to civil litigants in most cases. Constitution 1976, Art. VI, Sec. XV, Par. I (Code Ann. § 2-4401) [now Art. I, Sec. I, Par. XI, of the 1983 Georgia Constitution]; OCGA § 9-11-38 (formerly Code Ann. § 81A-138 (Ga. L. 1966, pp. 609, 652)). The right may be ‘expressly waived’ by ‘written stipulation filed with the court or by an oral stipulation made in open court and entered in the record,’ OCGA § 9-11-39 (formerly Code Ann. § 81A-139 (Ga. L. 1966, pp. 609, 652)), or impliedly waived by voluntary participation in a non-jury trial. Wise, Simpson, Aiken & Assoc., Inc. v. Rosser White Hobbs Davidson McClellan Kelly, Inc., 146 Ga. App. 789, 795 (6) (7) (247 SE2d 479).” Raintree Farms v. Stripping Center, Ltd., 166 Ga. App. 848 (1) (305 SE2d 660).

In the case sub judice, there is nothing in the record showing that Howard voluntarily waived his right to a jury trial via one of the above prescribed methods. Further, Bank South cites no binding authority requiring this Court to recognize the waiver of jury trial provision in the 1988 guaranty agreement. However, it is argued that the waiver provision is enforceable based on principles of judicial economy and freedom of the right to contract. We do not agree.

“Our Civil Practice Act mandates a jury trial in all cases at law except when by written stipulation a party consents to trial by the court sitting without a jury. OCGA § 9-11-39; Raintree Farms v. Stripping Center, Ltd., 166 Ga. App. 848 (1)[, supra].” Tigner v. Shearson-Lehman Hutton, Inc., 201 Ga. App. 713, 715 (411 SE2d 800). The requirement of written stipulation before waiver of the right to trial by jury carries the implication that such waivers be knowing and voluntary, i.e., demonstrates full understanding of all circumstances surrounding relinquishment of the known right. See Raintree Farms v. Stripping Center, Ltd., 166 Ga. App. 848 (1), supra. In the case sub judice, Howard could not have knowingly and voluntarily given up his right to trial by jury in 1988 as he then could not have been aware of the basis and circumstances of any future claim upon the guaranty. It therefore follows that the waiver of jury trial provision in the 1988 guaranty agreement is not enforceable against Howard as a consent to trial by the court sitting without a jury.

Decided June 22, 1993 —

Reconsideration denied July 13, 1993 —

Branch, Pike, Ganz & O’Callaghan, Burt DeRieux, Keith J. Reisman, Daryl G. Clarida, Cook & Palmour, Bobby Lee Cook, Jr., for appellant.

Kilpatrick & Cody, Matthew H. Patton, H. Quigg Fletcher, Greenwood, Chambers & Elliott, Timothy L. Spruell, for appellee.

The trial court erred in striking Howard’s demand for jury trial.

5. Finally, Howard contends the trial court erred in granting Bank Souths motion in limine excluding reference to his defenses and counterclaim. We agree, but only on the basis that any such ruling is premature. See Division 1 of this opinion.

Judgment reversed.

Pope, C. J., and Cooper, J., concur. Beasley, P. J., disqualified.


text:
    A93A0365.
    PREJEAN v. THE STATE.
    (433 SE2d 628)
   Johnson, Judge.

A jury found Kevin Prejean guilty of cruelty to children for immersing a minor child in scalding water. He appeals from his conviction and the denial of his motion for a new trial.

1. Prejean contends that the trial court erred in refusing to grant his motion for directed verdict of acquittal made at the close of all of the evidence. A directed verdict of acquittal is authorized only where there is no evidence to support a verdict to the contrary. Lane v. State, 177 Ga. App. 553, 554 (340 SE2d 228) (1986). After a review of the entire record, we find that a verdict of acquittal was not demanded in this case.

The victim’s mother left the two-year-old victim and his sister in Prejean’s care. Prejean testified that the victim’s mother had requested that he “clean up” the victim because he had wet his diaper. Prejean decided to give the victim a bath. Several hours later, the victim’s mother was notified that the child had been burned. A physician testified that she was suspicious that the child’s burns were “non-accidental” and described the burns as deep second and third, degree immersion burns covering almost one-third of the child’s body. She also testified that the victim’s skin was burned in a uniform manner. This suggests an immersion burn, rather than a burn occurring in the manner Prejean described to the police investigator as set forth below.

An investigator from the police department interviewed Prejean in an attempt to find out what had caused the child’s injury. The investigator testified that Prejean had told him that he left a pot of water boiling on the stove and then went upstairs, leaving the victim downstairs playing with a beach ball. Shortly thereafter, he heard the victim scream and returned to find the victim with the pot between his legs and hot water everywhere. He implicated the victim’s six-year-old sister during this interview.

Prejean changed his story at trial, testifying that he had placed the child in the tub, turned on the water and then left the child unattended while he answered the phone. After hearing the child scream, Prejean returned to the bathroom and saw that the child had suffered a burn. Prejean admitted having lied to the investigator about how the burn had occurred. Viewing the evidence in the light most favorable to the verdict, we find that there was sufficient evidence for a rational jury to find Prejean guilty of cruelty to children beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The trial court did not err in denying Prejean’s motion for a directed verdict of acquittal.

2. Prejean contends that the trial court erred in allowing an expert witness to testify that the victim’s burn from immersion in the water was “non-accidental.” Prejean argues that this testimony was improperly admitted because whether the burn was intentional or accidental was the ultimate issue to be decided by the jury. We recognize the general principle that witnesses are not allowed to express their opinion as to ultimate issues involved in the case. See Maxwell v. State, 262 Ga. 73, 76 (5) (414 SE2d 470) (1992). Reviewing the physician’s testimony as a whole, she opines that she was “suspicious that [the victim’s burn] was ... a non-accidental burn.” This testimony does not infringe upon the jury’s role in deciding the ultimate issue. The physician was merely attesting that, based upon her experience, the type of burn sustained by the victim resembled those that she had seen before which were not accidental. “An expert’s special knowledge may be derived from experience as well as study.” (Citations and punctuation omitted.) Volcey v. State, 200 Ga. App. 881, 883 (2) (410 SE2d 36) (1991). The expert did not testify that this burn was indeed non-accidental, nor did she opine that Prejean caused the burn. Her testimony was properly admitted.

Moreover, the jury was authorized to determine whether to disregard the expert’s testimony regarding the nature of the burn. It is well-settled that “a jury is always free to reject expert opinion testimony and substitute their own knowledge and experience.” (Citations and punctuation omitted.) Hill v. All Seasons Florist, 201 Ga. App. 870, 872 (1) (412 SE2d 619) (1991). We find no error.

3. Prejean complains that the trial court impermissibly restricted his closing argument by disallowing him to comment on the State’s failure to produce two expert witnesses. As a general rule, the defendant is not permitted to comment on the State’s failure to produce certain witnesses. Wilson v. Zant, 249 Ga. 373 (290 SE2d 442) (1982). Prejean concedes that Wilson, supra, is controlling as to this issue. He argues, however, that the court should make an exception to the rule in this case. It appears that Prejean sought to comment on the absence of these witnesses in order to argue or infer that they would have offered exculpatory testimony. This is precisely what the rule in Wilson was designed to prevent. The court did not err in disallowing Prejean to comment on the absence of the two expert witnesses.

4. Prejean contends that the trial court erred in limiting his closing argument by disallowing him to draw conclusions from the physician’s testimony regarding the type of burns she had treated in the past. During the State’s case-in-chief, the physician testified regarding the variety of the types of burns that she had seen, which included burns occurring on several parts of the body and a burn in which a child was almost completely submerged under water. In his closing argument, Prejean’s attorney mentioned the types of burns that the physician had seen and argued to the jurors that they should infer from the doctor’s testimony that she had no experience with the particular type of burn sustained by the victim in this case. The State objected to this portion of the trial testimony on the ground that defense counsel was making statements concerning matters not in evidence and the court sustained the objection. See OCGA § 17-8-75. Because the physician had testified regarding the burns she had seen in the past without objection, this matter was properly in evidence and it was error for the court to limit defense counsel’s argument on this issue. However, the record shows that defense counsel was able to argue substantially on this issue prior to the State’s objection and, indeed, argued that the physician had seen “nothing like this [burn], not one time.” Under these circumstances, we cannot find that the court’s error in limiting defense counsel’s closing argument was harmful.

5. Prejean contends that the trial court erred in denying his motion for mistrial based upon the State’s failure to provide him with complete scientific reports. Prejean argues that he was entitled to the attending physician’s notes from which she based a portion of her testimony. “It is well-established that the State is not required, under OCGA § 17-7-211, to furnish defendant with its expert’s notes, work product, recordation of data, internal documents, or graphs.” (Citations and punctuation omitted.) Roberts v. State, 196 Ga. App. 450 (396 SE2d 81) (1990). It appears from the record that the State complied with OCGA § 17-7-211. Furthermore, the district attorney explained to the court that he had provided Prejean with all of the scientific reports in his possession, including medical summaries, pursuant to Prejean’s request for such reports and in compliance with the statute.

Decided June 22, 1993 —

Reconsideration denied July 13, 1993 —

Davidson & Fuller, Stephen P. Fuller, for appellant.

Lewis R. Slaton, District Attorney, J. Clayton Culp, Assistant District Attorney, for appellee.

We note that Prejean’s remedy for a violation of OCGA § 17-7-211 was to request a continuance or to make a motion to strike the physician’s testimony. See generally Pontoon v. State, 177 Ga. App. 868, 870 (341 SE2d 505) (1986). Neither of these remedies was sought. The court’s refusal to grant Prejean’s motion for mistrial was proper.

Judgment affirmed.

Blackburn and Smith, JJ., concur.