text:
    A97A0638.
    In re FLOYD COUNTY GRAND JURY PRESENTMENTS FOR MAY TERM 1996.
    (484 SE2d 769)
   Eldridge, Judge.

On September 6, 1996, the May Term Floyd County Grand Jury filed its presentments in the Superior Court of Floyd County. The presentments contained a report entitled “Attorney General’s Investigation,” which purported to detail actions of the Attorney General’s Office relevant to the Hospital Authority of Floyd County (Hospital Authority) and certain individuals affiliated with the Hospital Authority. The presentment contained allegations which not only were critical of the Attorney General, but also cast reflections of misconduct and impugned the character of the Attorney General and his office.

A petition to expunge the grand jury report was filed by the Attorney General’s Office on September 10, 1996, with the Superior Court of Floyd County, alleging that the report was ultra vires, contained false and misleading information, and was an abuse of the grand jury system at the hands of the Floyd County District Attorney who manipulated the grand jury in an effort to embarrass the Attorney General.

By way of background the Attorney General had previously sought and obtained a Fulton County • indictment of the District Attorney in 1993 for false statements. This indictment was dismissed on venue grounds. Subsequently, an indictment charging the District Attorney with multiple counts of false statements and theft was presented by the Attorney General to a Floyd County Grand Jury, which rendered a no bill.

The petition to expunge further showed that the District Attorney had obtained indictments for making false statements against the Hospital Authority’s attorney, Wade Monk, and against the Hospital Authority Executive Director, Bill Waters. Thereafter, the District Attorney immediately disqualified himself and his office from prosecuting the case. The Governor requisitioned the Attorney General to provide prosecutorial services in these previously indicted cases against Monk and Waters as “necessary and proper.”

The District Attorney made a motion to dismiss the petition to expunge, and it was ordered sealed by the court because attached to the motion was a proposed grand jury report which had never been adopted by the grand jury. Also attached to the motion was a copy of a letter from the District Attorney to the Executive Counsel to the Governor asking that the Governor direct the Attorney General to undertake civil action against members of the Hospital Authority to resolve conflicts of interest and to recover possible improperly received profits.

A hearing was held on September 16, 1996, after which the trial court ordered that certain portions of the presentment referring to campaign contributions and referring to an Atlanta law firm doing Hospital Authority work was ordered expunged but left the remainder of the report unchanged. However, the remaining allegations in the report were left unchanged and intact by the trial court, and such matters ultimately were published in the legal organ for Floyd County. In so ruling, the trial court determined that the Attorney General was not acting as a state official in his activities involving the Hospital Authority, but as a “district attorney pro tempore.” As such, the trial court concluded that the grand jury report related to local government issues, rather than a state office, and were thus proper for reporting by the grand jury. The trial court found that the grand jury digressed from its proper activities in reporting on the Attorney General’s supposed motives and the “conduct of Mr. Bowers personally.”

Notice of appeal was filed on October 29, 1996, because the trial court failed to completely expunge the record.

1. The first enumeration of error is that the trial court failed to expunge the entirety of that portion of the Floyd County Grand Jury Presentment for the May Term which related to the “Attorney General’s Investigation” in that the remaining portion of the report concerned the actions of a state constitutional officer and state agency, and constituted an ultra vires act of the Floyd County Grand Jury beyond its statutory authority under OCGA § 15-12-71 (a).

Since the grand jury proceedings are secret, OCGA § 15-12-73, it is possible that a grand jury as a group of laypersons can exceed the scope of their authority and, because of their membership, become involved in politics and in local feuds. It is for this reason that a superior court judge supervises the grand jury and has the duty to scrutinize, receive, and order filed the presentment of the grand jury. OCGA §§ 15-12-80; 15-12-100 (a); 15-12-101; Thompson v. MaconBibb County Hosp. Auth., 246 Ga. 777, 778-779 (273 SE2d 19) (1980); In re Hensley, 184 Ga. App. 625, 626-627 (1) (362 SE2d 432) (1987).

“[A] grand jury has no right in the absence of specific statutory authority to file a report charging or casting reflections of misconduct in office upon a public officer or impugning his character, except by presentment or true bill of indictment charging such individual with a specific offense against the State; and it is the fundamental right of one who is the subject of such extra-judicial report to have it expunged from the official records. [Cits.] . . . It is our further opinion, however, that the instant report contained statements unnecessary to the purpose sought to be accomplished by the report, which undei a reasonable interpretation thereof did by innuendo and implication cast reflections of misconduct upon the office of the [Attorney General].” Kelley v. Tanksley, 105 Ga. App. 65, 66-67 (123 SE2d 462) (1961).

“The grand jury had no right to return the report charging or casting reflections of misconduct in office upon the [Attorney General] or impugning his character, without a presentment or true bill of indictment charging him with a specific offense against the State; and it is the right of the [Attorney General], who is the subject of such extra-judicial report, to have it expunged from the official records. [Cit.]” Harris v. Edmonds, 119 Ga. App. 305 (166 SE2d 909) (1969); see also In re Presentments of the Lowndes County Grand Jury, March Term 1982, 166 Ga. App. 258, 259 (304 SE2d 423) (1983).

OCGA § 15-12-71 (a) provides “[t]he duties of a grand jury shall be confined to such matters and things as it is required to perform by the Constitution and laws or by order of any superior court judge of the superior court of the county.” Such provisions of the duties and limitations of a grand jury remain unchanged after the passage of Ga. L. 1995, pp. 1292, 1296-1297, § 6. OCGA § 15-12-71 (b) (1), (2) broadened the grand jury’s civil powers of investigation. State v. Bar-tel, 223 Ga. App. 696 (479 SE2d 4) (1996). However, even while providing broadened powers for civil investigation, such amendment does not give a grand jury license to cast reflections of misconduct or impugn the character of a local office holder and thus exceed the purpose the presentment legitimately serves. Kelley v. Tanksley, supra at 67; see also Thompson v. Macon-Bibb County Hosp. Auth., supra at 778-779.

Further and notwithstanding that the grand jury presentment exceeded legitimate criticism of even a local official under its stated purpose, the Attorney General is not a local official. The Attorney General is a state official heading a state agency. Under no legal fiction does the expanded powers of OCGA § 15-12-71 (b) allow a grand jury to civilly investigate a state official or agency; this Court expressly so held in Floyd County Grand Jury v. Dept. of Family &c. Svcs., 218 Ga. App. 832, 833-835 (1) (463 SE2d 519) (1995). “[N]ot only are grand juries without power to inspect and investigate state offices under OCGA § 15-12-71 (b) (2), but they lack power to perform civil investigations of state offices under any other statute.” (Emphasis supplied.) Id. at 835. Thus, the grand jury cannot do indirectly what it is prohibited from doing directly: poke the Attorney General for the State of Georgia in the eye and then claim that it was merely incidental to a legitimate exercise of civil investigative powers and presentments regarding county authorities.

The trial court erred in failing to expunge the entire “Attorney General’s Investigation,” from the Floyd County Grand Jury’s Presentments for the May Term of 1996.

2. The second enumeration of error is that the trial court erred in concluding that a member of the Attorney General’s staff was acting as a “district attorney pro tempore” under OCGA § 15-18-5 (a) (3) in the handling of matters relating to individuals affiliated with the Hospital Authority of Floyd County.

The Attorney General derives his power and authority from Art. V, Sec. Ill, Par. IV of the 1983 Constitution of the State of Georgia and certain other statutes: OCGA §§ 32-1-5; 45-15-3 (3), (6); 45-15-10; 45-15-12; 45-15-17; 45-15-18; and 45-15-35. The Attorney General derives no power or authority from OCGA § 15-18-5 (3); such statute serves merely as the procedural vehicle by which a requisition is made to the Governor for the services of the Attorney General as a state prosecutor. Under OCGA § 15-18-5 (2) and (3), neither the Attorney General nor a district attorney from another circuit need derive any further powers under the act, because they have already received the oath of office, been empowered to prosecute state cases, and been salaried to compensate for the performance of such prosecutorial services. Thus, they are not district attorneys pro tempore when they are called upon to serve. In contrast, a private attorney who is selected to temporarily serve the function of district attorney has taken no oath, been granted no prosecutorial powers and discretion, nor been granted any compensation except under OCGA § 15-18-5 (a) (1) and (b). The plain language of OCGA § 15-18-5 (b) states that a private attorney serving as a district attorney pro tempore is granted the prosecutorial powers and compensation. Clearly, no mention is made of district attorneys from other circuits or the Attorney General, because they derive such powers from their respective prosecutorial offices. Thus, the Attorney General or a district attorney from another circuit may retain their respective offices and continue their prosecutorial functions in another county without becoming a district attorney pro tempore for the purposes of the prosecution.

To hold that the Attorney General or a member of the State Law Department, when serving under requisition from the Governor ceases to be a state official and becomes a district attorney pro tempore, thereby transforming into a county office holder within the ambit of OCGA §§ 15-18-5 (a) (3) and 15-12-71 (b) (1), (2) subject to a grand jury’s aspersions is an insupportable legal fiction that is derived from neither case law nor statute. At the greatest stretch of such legal fiction, it could be argued that the Attorney General held his state office and a temporary local office simultaneously; however, even under such analysis, the grand jury in the case sub judice would have acted ultra vires, because to malign one is to malign the other, as they are inseparable. There are many state offices filled at the local level by dual agency with designation as state agents employed by the county; however, such individuals are state agents for purposes of the grand jury. See Floyd County Grand Jury v. Dept. of Family &c. Svcs., supra.

The trial court erred in holding that the Attorney General or a member of his staff was not a state agent but, in fact, a district attorney pro tempore.

3. The final enumeration of error is that the trial court erred in failing to expunge the entirety of the report on the “Attorney General’s Investigation” in that the remaining portions of the report cast reflections of alleged misconduct and constitute a violation of the due process rights of the Attorney General.

Under Art. I, Sec. I, Par. I of the 1983 Constitution of Georgia, due process is guaranteed to all; generally, such grant of due process is co-extensive with the Fifth and Fourteenth Amendments of the Federal Constitution; however, it may afford greater safeguards. In the case sub judice, the General Assembly, has as a matter of sound legislative reasoning granted to public office holders facing indictment the right to appear before a grand jury with counsel, to give sworn testimony without cross-examination, and to view but not cross-examine witnesses appearing against them. OCGA § 45-11-4. In finding that such right had a rational legislative purpose, the federal circuit court of appeals found that such right was needed because of the potential that grand jurors might be influenced by political considerations to indict public officials for misconduct in office. Sweeney v. Balkom, 358 F2d 415 (5th Cir. 1966). The appellate courts of Georgia also have recognized that grand juries can trample a public official’s due process rights. Thompson v. Macon-Bibb County Hosp. Auth., supra at 778; Kelley v. Tanksley, supra at 66. The only redress available to the office holder is to have the offending language expunged from the public record; such has been the uniform remedy applied by the Georgia courts.

Decided March 25,1997

Michael J. Bowers, Attorney General, Michael E. Hobbs, Counsel to the Attorney General, Daryl A. Robinson, Deputy Counsel to the Attorney General, for appellant.

Stephen F. Lanier, District Attorney, Troutman Sanders, Norman L. Underwood, for appellee.

As such rights were not afforded the Attorney General in the case sub judice, the trial court erred in failing to expunge in its entirety the “Attorney General’s Investigation,” portion of the presentment.

Judgment reversed.

Birdsong, P. J, and Ruffin, J., concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A97A0674.
    MORRISON v. THE STATE.
    (484 SE2d 762)
   Blackburn, Judge.

Eugene Morrison was convicted by a jury of driving under the influence of alcohol, no proof of insurance, and leaving the scene of the accident. Morrison appeals his convictions of driving under the influence and no proof of insurance contending that the State improperly impeached a witness and that the evidence was insufficient to support his convictions.

1. Viewed in the light most favorable to the verdict, the evidence indicates that Morrison was driving his wife’s car when he scraped the rear end of the victim’s car along the driver’s side. Morrison did not stop at the scene of the accident, and the victim attempted to follow him. Within 35-45 minutes after the collision, the victim, her passenger, her husband, and Officer Thomas questioned Morrison at his residence. The victim testified that Morrison’s speech was slurred, and that he smelled like he had been drinking beer. The victim’s passenger testified that Morrison’s behavior led her to believe he was intoxicated or under the influence of something. Officer Thomas testified that Morrison was unsteady on his feet, had bloodshot eyes, and slurred speech. He further testified that Morrison smelled of an alcoholic beverage and that, in his opinion, Morrison was under the influence of alcohol. Morrison argues on appeal that he could have consumed alcoholic beverages between the time of the accident and the time he was arrested. However, Morrison testified that he had been sleeping prior to the time Officer Thomas arrived at his house.

Officer Thomas testified that he asked Morrison for proof of insurance and Morrison was unable to produce it. Morrison told Officer Thomas that he did not have an insurance card in the car. At trial, Morrison produced an insurance card which indicated insurance at the time of the collision. While this evidence should have impacted the sentence Morrison received, which Morrison did not appeal, it does not impact his conviction for driving without proof of insurance. See OCGA § 40-6-10 (a) (4) (court shall impose fine not to exceed $25 where person shows coverage was in effect).

“On appeal from a finding of guilt, the presumption of innocence no longer prevails and evidence must be viewed in the light most favorable to the verdict, for it reflects the jury’s determination on the credibility and weight of evidence which determination we must accept; we consider only the. sufficiency of the evidence to support a conviction. We have reviewed the evidence in favor of the jury’s verdict and find it sufficient to enable a rational trier of fact to find [Morrison] committed the offenses charged[] beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis.” (Citation and punctuation omitted.) Posey v. State, 215 Ga. App. 565, 567 (451 SE2d 463) (1994).

2. In two enumerations of error, Morrison contends that the trial court erred in allowing the State to improperly impeach his witness with the witness’s former plea to being a habitual violator. Morrison argues that the State’s method of impeachment was improper and that habitual violator status is not a crime involving moral turpitude.

The Supreme Court of Georgia has previously held that conviction of a felony involves moral turpitude. See Lewis v. State, 243 Ga. 443, 446 (254 SE2d 830) (1979). Although the record in the present case is not clear as to whether the witness was convicted of felony or misdemeanor habitual violator status, see OCGA § 40-5-58 (c) (1) and (2), Morrison has failed to argue at trial- or on appeal that the conviction was a misdemeanor. Therefore, we find that the trial court did not abuse its discretion in allowing the testimony. We further find that even assuming the State’s method of impeachment was error, it was harmless error which did not contribute to the jury’s verdict.

Judgment affirmed.

Pope, P. J., and Johnson, J, concur.

Decided March 25,1997.

William D. Edwards, for appellant.

Richard W. Shelton, Solicitor, for appellee.


author: Ruffin, Judge.

text:
    A97A0692.
    JACOWAY v. THE STATE.
    (484 SE2d 757)
   Ruffin, Judge.

Sherell Tawanna Jacoway appeals her probation revocation. In her sole enumeration of error, Jacoway contends the trial court erred in revoking her probation based on evidence that she violated the terms of her probation on a different date than that alleged in the revocation petitions. We affirm.

The record shows that on May 1, 1996, Jacoway pled guilty to one count of false swearing and was sentenced to five years probation. Jacoway admits in her brief that she also pled guilty to three counts of first degree forgery and was sentenced to seven years probation. On August 13, 1996, the State filed a petition for revocation alleging that Jacoway “violated the terms and conditions of probation in the following particulars: RULE #1: Do not violate the criminal laws of any governmental unit. [Jacoway] committed the offenses of Arson, Burglary, Criminal Damage to Property, Theft by Deception and Interference With Government Property on/about July 19, 1996.” The petition was amended on September 19, 1996, to (1) add allegations that Jacoway had committed the offenses of forgery and terroristic threats on or about July 19, 1996 and (2) delete the allegation of theft by deception committed on or about July 19, 1996.

The State does not dispute that during the revocation hearing its witnesses testified that the conduct attributed to Jacoway occurred on July 11,1996, rather than July 19, 1996. Jacoway asserts that the variance between the date alleged in the petition and the evidence actually presented is fatal to the State’s case. The State argues that the variance is not fatal because (1) the date was not a material element, (2) Jacoway declined the trial judge’s offer of a continuance, and (3) the testimony of Jacoway’s alibi witness was based only on the day of the fire, not a specific calendar date. We agree.

“Absent a variance between the pleadings and the proof resulting in a failure to give sufficient notice of the allegations against an accused or to foreclose the potential for another prosecution against the accused for the same offense, a variance is not fatal. [Cit.]” Spruell v. State, 217 Ga. App. 150 (1) (456 SE2d 740) (1995). It is clear that the State was attempting to revoke Jacoway’s probation based on a particular fire which occurred in July 1996, after Jacoway was placed on probation. Jacoway was provided with sufficient notice that this fire was the reason for the petition to revoke her probation, and Jacoway could not have been prosecuted again for offenses relating to the same fire.

Decided March 25,1997.

William F. Sparks, for appellant.

Stephen F. Lanier, District Attorney, Lisa W. Tarvin, Assistant District Attorney, for appellee.

Furthermore, the trial judge informed Jacoway that she was entitled to a continuance if necessary to subpoena or gather any additional evidence with respect to an alleged alibi on July 11, as opposed to July 19. However, both the trial judge and Jacoway’s attorney acknowledged that Jacoway’s alibi witness was not relating the alibi to a particular date “but instead was recalling events based upon when he heard about the alleged fire and incident. . . and he related it to the events in his life and his life with Ms. Jacoway on or about the same time. . . .” Jacoway’s counsel declined a continuance. Later in the proceedings, the trial judge again offered Jacoway a continuance, and Jacoway’s counsel once again refused the offer.

“The [petition] contained ‘on or about language,’ which was sufficient to put [Jacoway] on notice that the exact date might vary from the date contained in the [petition].” Raposa v. State, 207 Ga. App. 106, 107 (427 SE2d 79) (1993). While the variance may have entitled Jacoway to a continuance (see id.), it is undisputed that Jacoway was offered a continuance by the trial judge on a number of occasions and declined the offer each time.

We conclude that the trial court did not err in revoking Jacoway’s probation. Based on the trial transcript, it is clear that the variance in dates did not prevent Jacoway from presenting her alibi defense and witness, whose testimony did not focus on a specific date. It is also clear that Jacoway was offered a continuance on more than one occasion by the trial judge, yet declined the offer.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


text:
    A97A0837, A97A0838.
    LOGGINS v. THE STATE (two cases).
    (484 SE2d 758)
   Blackburn, Judge.

James Farr Loggins was convicted by a jury of theft by taking, theft by receiving, and reckless driving. Immediately after this trial, he was convicted in a separate jury trial of obstruction of an officer. Loggins appeals his convictions in both cases, asserting numerous grounds. For the reasons discussed below, we affirm.

1. Loggins contends the court erred in denying his motions for continuance of the trials. Prior to the start of the theft trial, Loggins informed the court that he wished to discharge his court-appointed attorney, Alan Koman, and represent himself pro se. Loggins moved for a continuance on the ground that he was not prepared for trial. The trial court denied the motion for a continuance, but required Koman to remain in the courtroom as Loggins’ advisor throughout the trials. Loggins again moved for a continuance prior to the start of his obstruction trial, and the court denied this motion.

“A motion for continuance predicated upon a claim of insufficient time to prepare for trial is addressed to the sound discretion of the trial court, and will not be interfered with unless it is clearly shown that the court abused its discretion.” (Citation and punctuation omitted.) Marcello v. State, 220 Ga. App. 284 (469 SE2d 252) (1996). “[T]he conduct of the party is a relevant and proper consideration of the judge in the exercise of its discretion in order to prevent a party using the discharge and employment of counsel as a dilatory tactic.” Brannon v. State, 220 Ga. App. 572, 574 (2) (469 SE2d 716) (1996).

Koman was the third attorney appointed to represent Loggins. Loggins’ first attorney withdrew shortly after being appointed, approximately nine months before trial. Loggins’ second attorney was discharged approximately one month before trial, after Loggins sent him a letter threatening him and his family. Koman was appointed two weeks before trial, and the record does not reflect that Loggins objected to his appointment until the day of trial. Based on these facts, the court was authorized to conclude that Loggins was attempting to use discharge of counsel as a dilatory tactic, and did not abuse its discretion in denying Loggins’ requests for continuance. See Massalene v. State, 224 Ga. App. 321 (480 SE2d 616) (1997).

2. Loggins contends he is entitled to a new trial on the theft charges because his second attorney, Frank Smith, did not have Log-gins’ permission to waive formal arraignment and plead not guilty in his absence. Contrary to Loggins’ assertions, a defendant’s attorney is authorized to waive arraignment and enter a not guilty plea in his client’s absence. See Davis v. State, 135 Ga. App. 203, 205-206 (217 SE2d 343) (1975). The defendant’s right to be present at the arraignment is waived if counsel does not object to proceeding in the defendant’s absence. Id.

Furthermore, Loggins filed numerous pro se motions in the theft case, including a motion to dismiss the indictment and a motion for acquittal. He argued these motions prior to trial, after dismissing his third attorney. ‘A defendant [cannot] demur to an indictment . . . and then claim . . . that he has never been arraigned or afforded an opportunity to plead, for he pleaded to the merits when he presented the issue of law; and although that plea was put in without his being formally arraigned, he had a right to waive arraignment, and by his conduct did waive it. . . . It follows that appellant waived formal arraignment when he moved to quash or dismiss the indictment.” (Citations and punctuation omitted.) Baskin v. State, 137 Ga. App. 840, 841 (1) (225 SE2d 77) (1976). See also Croft v. State, 180 Ga. App. 705 (350 SE2d 34) (1986); Shorter v. State, 155 Ga. App. 609, 610 (1) (271 SE2d 741) (1980).

In addition to Loggins’ pro se motions, his attorney Roman filed a demand for jury trial on June 14, 1996. Loggins did not withdraw or repudiate this motion after he dismissed Roman. This demand for jury trial also constituted a waiver of the right to be formally arraigned. See Ferrell v. State, 149 Ga. App. 405, 406 (3) (254 SE2d 404) (1979).

3. Loggins contends that he was denied his constitutional rights because he was not given adequate access to a law library. As support for this contention, Loggins cites Bounds v. Smith, 430 U. S. 817, 828 (97 SC 1491, 52 LE2d 72) (1977), in which the United States Supreme Court held that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” (Footnote omitted.)

However, the state’s constitutional obligation is discharged by providing prisoners with either adequate law libraries or adequate assistance from persons trained in the law. Id.; see also Portis v. Evans, 249 Ga. 396, 398 (2) (291 SE2d 511) (1982). Until he chose to fire his third attorney the morning of trial, Loggins was represented by counsel appointed by the state. After he fired his lawyer and elected to proceed pro se, his appointed attorney was required to remain in the courtroom and act as Loggins’ advisor. Thus, the state discharged its duty to provide Loggins with adequate legal assistance.

4. Loggins contends that his constitutional rights were violated in that counsel was forced upon him. This enumeration is without merit. Loggins initially requested that counsel be appointed for him. When his first attorney filed a motion to withdraw, Loggins objected to the withdrawal, arguing that it was almost impossible for him to represent himself. Only after Loggins became dissatisfied with his second attorney did he file a motion to proceed pro se. However, this motion was equivocal, and stated that Loggins “still is entitled to be appointed an attorney that will defend ... all his rights.” The record does not contain a copy of any order on this motion or a transcript of any hearing.

Loggins’ second attorney withdrew after Loggins sent him a letter threatening him and his family, and the third attorney, Roman, was then appointed. Roman met with Loggins prior to trial, and there is no evidence in the record that Loggins objected to Roman’s appointment prior to the day of trial. When Loggins informed the court that he was dissatisfied with Roman, he asked that another attorney be appointed. Only after the court denied this request for a fourth attorney did Loggins elect to represent himself, and the court allowed him to do so. Accordingly, Loggins’ contention that he was deprived of his right to self-representation is without merit.

5. Loggins’ attorney, Roman, filed a motion for a psychiatric evaluation of his client. However, when Loggins dismissed Roman and elected to proceed pro se, Loggins expressly withdrew this motion. On appeal, Loggins argues that the trial court erred in failing sua sponte to order an inquiry into his competence to stand trial.

“A trial court must conduct, sua sponte, a competency hearing when the information known to the trial court at the time of the trial ... is sufficient to raise a bona fide doubt regarding the defendant’s competence. Courts focus on three factors in determining whether the trial court violated the defendant’s procedural due process rights by failing to hold sua sponte a competency hearing: (1) evidence of the defendant’s irrational behavior; (2) the defendant’s demeanor at trial; and (3) prior medical opinion regarding the defendant’s competence to stand trial.” (Citations and punctuation omitted.) White v. State, 202 Ga. App. 424, 425 (414 SE2d 328) (1992).

Although Loggins was hostile toward his attorneys, this does not necessarily indicate irrationality. Indeed, his hostility resulted from what he perceived as his attorneys’ failure to zealously protect his interests. With respect to Loggins’ demeanor at trial, the evidence I shows, and the court found, that Loggins was a very intelligent man j who handled himself well in the courtroom. No evidence was presented of medical opinions regarding Loggins’ competence to stand trial. Accordingly, the court did not err in failing to order a competency hearing.

6. In his final enumeration, Loggins contends that the jury’s verdict was not unanimous and that it merely agreed to a verdict to terminate the matter. However, although the jury sent the judge notes indicating that one juror would not participate in discussions and refused to officially cast a vote despite his agreement that Loggins was guilty, the jury ultimately returned a guilty verdict after being instructed by the judge that the verdict must be agreed to by all jurors. The jury was polled after the verdict, and every juror acknowledged without reservation that his or her verdict was guilty. Accordingly, this enumeration is without merit.

Judgments affirmed.

Pope, P. J., and Johnson, J., concur.

Decided March 25,1997.

David C. Butler, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Debra H. Bernes, Charles M. Norman, Assistant District Attorneys, for appellee.


text:
    A97A0870.
    THRASHER v. THE STATE.
    (484 SE2d 755)
   Blackburn, Judge.

Danny K. Thrasher appeals his convictions of aggravated assault on a police officer, driving under the influence, driving with a suspended license, and fleeing and attempting to elude. On appeal, Thrasher contends the trial court erred in denying his motion for new trial based on disparaging remarks a potential juror made about him. He also claims that the evidence was insufficient to support his convictions.

1. The evidence viewed in the light most favorable to the verdict indicates that deputies of the Oconee County Sheriffs Office were conducting a driver’s license check on Epps Bridge Road when Thrasher drove his blue Datsun through the check point without stopping. Deputy Reed testified that he was checking the driver’s license of someone in a stopped car when Thrasher’s vehicle came at him, causing him to jump out of the way to avoid being hit. Deputy Reed was able to see Thrasher’s face as the vehicle drove past him. Deputy Reed also saw the first three letters of the license plate on the Datsun.

After a search, Thrasher’s vehicle was located a short distance from the roadblock in front of a mobile home. The motor on the car was still hot from being recently driven. Thrasher was agitated and sweaty. He had bloodshot eyes, slurred speech, and was unsteady on his feet. Deputy Reed and Deputy Aguilar testified that Thrasher was under the influence of alcohol to the extent that it was less safe for him to drive a motor vehicle.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant ... no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, is a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted,' to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citations and punctuation omitted.) Scott v. State, 223 Ga. App. 479, 480-481 (1) (477 SE2d 901) (1996).

Decided March 25,1997.

Anthony T. Pete, Thomas J. Killeen, for appellant.

Harry N. Gordon, District Attorney, James D. Love, Assistant District Attorney, for appellee.

Although Thrasher and his witnesses testified that he was at home all night, the jury is the ultimate judge of witness credibility and resolver of conflicts in the evidence. Thrasher contends there was no evidence of his intent to commit aggravated assault, however, inasmuch as he drove his car through a roadblock toward a uniformed officer who was clearly visible, this evidence is sufficient to find the requisite intent for aggravated assault. See OCGA § 16-2-6 (jury may find intent “upon consideration of the words, conduct, demeanor, motive, and all other circumstances”). As competent evidence supports the jury’s verdict, it will be upheld.

2. Thrasher contends the trial court erred in denying his motion for new trial based upon comments made by a juror. After the jurors had been selected, a juror reported that another juror had made comments about Thrasher prior to jury selection. The trial court questioned the juror who stated she did not talk about Thrasher and that she did not know Thrasher. Thrasher’s counsel moved to have the juror removed. The court granted this motion and replaced the juror with the first alternate juror. Thrasher made no further objection to the makeup of the jury.

“Generally, the failure of a party to raise an objection to the [makeup] of the jury until after the return of the verdict constitutes a waiver of the issue on appeal. In addition, errors not raised at trial will not be considered.” (Citation and punctuation omitted.) Scott v. State, 219 Ga. App. 798 (1) (466 SE2d 678) (1996). As Thrasher failed to raise any objection at trial, this issue has not been preserved for appeal.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


text:
    A96A1997.
    THOMPSON v. LONG.
    (484 SE2d 666)
   Ruffin, Judge.

On May 2, 1994, Edna Thompson sued Crawford W. Long, M.D. for “professional malpractice.” In the complaint, Thompson alleged that “[o]n July 25, 1988, during the course of surgery, [her] unborn child died due to the negligent handling of her prenatal care.” Long answered the complaint and filed a motion to dismiss, arguing that the action was barred by the five-year statute of repose for medical malpractice actions. The trial court granted Long’s motion to dismiss, and Thompson appeals. Thompson asserts that the trial court erred in dismissing her complaint because (1) the statute of repose for medical malpractice actions is unconstitutional, (2) her complaint alleged negligence as well as medical malpractice, and (3) her claims based on Long’s intentional acts were not subject to the five-year statute of repose. For reasons which follow, we affirm.

The record shows that Thompson originally filed a pro se complaint for medical malpractice against Long on July 25, 1990. After obtaining counsel, Thompson voluntarily dismissed that complaint on November 4, 1993, and refiled it on May 2, 1994. Neither Thompson’s refiled complaint nor an amendment filed on August 2, 1994, alleges that Long committed any negligent acts after the July 25, 1988 surgery.

1. The two-year statute of limitation and five-year statute of repose for medical malpractice actions are codified at OCGA § 9-3-71 (a) and (b). Those subsections provide that “(a) [e]xcept as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred, (b) Notwithstanding subsection (a) of this Code section, in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.”

Thompson argues that “[t]he five year statute of repose is unconstitutional in that it arbitrarily distinguishes medical malpractice claimants from all other personal injury claimants and subjects medical malpractice claimants to abrogation of their claims.” Our Supreme Court has already responded to the same argument in ruling that OCGA § 9-3-71 (b) is constitutional. Craven v. Lowndes County Hosp. Auth., 263 Ga. 657 (1) (437 SE2d 308) (1993). Accordingly, for the reasons discussed in Craven, Thompson’s first enumeration of error is without merit. Id.

2. Before reaching the merits of Thompson’s other assertions, we note the following. Although Thompson voluntarily dismissed and refiled her complaint within six months as provided for by OCGA §§ 9-11-41 (a) and 9-2-61 (a), such refiling did not put the refiled complaint “upon the same footing” as the original complaint. See Wright v. Robinson, 262 Ga. 844, 845 (1) (426 SE2d 870) (1993). Because Thompson refiled her complaint more than five years after the date on which any alleged negligent or wrongful acts occurred, as discussed below, the claims presented are subject to dismissal under the statute of repose. See id. As stated by the Supreme Court in Wright, “the legislature never intended for the dismissal and renewal statutes to overcome the statute of repose.” Id. at 846 (1).

3. Thompson asserts that in addition to her medical malpractice claims, her complaint includes claims of simple negligence resulting in personal injuries that are not barred by the statute of repose. Specifically, Thompson asserts that her claims for emotional pain and suffering and emotional distress sound in simple negligence. We disagree.

OCGA § 9-3-70 (1) defines an “action for medical malpractice” as “any claim for damages resulting from the death of or injury to any person arising out of: (1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service. . . .” A professional negligence action is a professional malpractice action that calls into question the conduct of a professional in his area of expertise. See Moore v. Louis Smith Mem. Hosp., 216 Ga. App. 299, 300 (454 SE2d 190) (1995).

In this case, Thompson alleged that Long determined she was pregnant after examining her and performing other diagnostic work. Thompson further claims that she informed Long of several symptoms she was experiencing and that, following two sonograms, he performed an emergency C-section during which her “unborn child died due to the negligent handling of her prenatal care.” Finally, Thompson alleged in her complaint that “[t]his action is one for professional malpractice in which [Long] failed to exercise the required degree and standard of care and caused injury to [her] from a want of such care and skill.”

Although Thompson alleged she sustained various injuries resulting from Long’s conduct, including those for emotional pain and distress, her complaint and the amendment to her complaint clearly allege that all such injuries resulted from Long’s professional malpractice. Though it is true that an injury sustained under a doctor’s care may be the result of simple negligence (see id.), the record shows that Thompson did not assert any such claims in this case. Accordingly, we conclude that Thompson’s claims for emotional pain and distress sound in professional malpractice and are subject to the five-year statute of repose.

4. In her last enumeration of error, Thompson asserts that her claim for punitive damages based on Long’s alleged intentional acts was not subject to the five-year statute of repose. Specifically, Thompson refers to the amendment to her complaint in which she alleged that Long’s conduct “as described in the original Complaint establishes a conscious and wanton disregard for the life of the Plaintiff, individually and of the rights of the child. . . .” (Emphasis supplied.) Because we find that such a claim was based on Long’s alleged professional malpractice, we conclude that the claim is barred by the five-year statute of repose (OCGA § 9-3-71 (b)).

A claim for “professional malpractice” can be based on intentional acts. “ Webster’s Third International Dictionary defines “malpractice” as “a dereliction from professional duty whether intentional, criminal, or merely negligent by one rendering professional services that results in injury, loss, or damage to the recipient of those services. . . .” ’ ” (Citation omitted; emphasis supplied.) Hodge v. Jennings Mill, Ltd., 215 Ga. App. 507, 508 (451 SE2d 66) (1994). Similarly, OCGA § 9-3-71 (a), which defines “medical malpractice,” does not limit such claims to claims of professional negligence, but includes “any claim for damages” arising out of the defined provision of medical services. Moreover, the plain language of OCGA § 9-3-71 (b) shows that the statute of repose is not limited to professional negligence cases. Rather, OCGA § 9-3-71 (b) abrogates all claims “for medical malpractice . . . brought more than five years after the date on which the negligent or wrongful act or omission occurred.” (Emphasis supplied.)

The mere fact that Thompson alleged that Long’s conduct was intentional does not mean that her claims were not medical malpractice claims barred under OCGA § 9-3-71 (b). To the contrary, the conduct upon which Thompson relies to establish her intentional tort claims, was “described in the original Complaint” as the “handling of her prenatal care.” Such a claim is clearly included in the definition of “medical malpractice” under OCGA § 9-3-70 (1). Accordingly, we conclude that Thompson’s claims of intentional conduct were medical malpractice claims barred by the five-year statute of repose. OCGA § 9-3-71 (b). This conclusion is consistent with the intent of OCGA § 9-3-71 (b) to establish a period of “ultimate repose and abrogation,” (OCGA § 9-3-71 (c)), “when past transgressions are no longer actionable.” Craven, supra at 660 (2). The statute stands as an “absolute” and “unyielding barrier to [Thompson’s] right of action.” Wright, supra at 845 (1). The fact that Thompson was seeking punitive damages for these acts does nothing to change the result.

Decided February 25,1997

Reconsideration denied March 26,1997

Hinton & Powell, Andrew J. Hinton, Jr., for appellant.

Sullivan, Hall, Booth & Smith, David V. Johnson, for appellee.

Judgment affirmed.

Johnson, J., concurs. McMurray, P. J, concurs in the judgment only.

       Although the trial court dismissed Thompson’s original complaint due to her alleged failure to comply with OCGA § 9-11-9.1, we reversed that decision in Thompson v. Long, 201 Ga. App. 480 (411 SE2d 322) (1991).


author: Birdsong, Presiding Judge.

text:
    A97A0230.
    MOUNTAINSIDE MEDICAL CENTER/PICKENS HEALTHCARE et al. v. TANNER.
    (484 SE2d 706)
   Birdsong, Presiding Judge.

After receiving workers’ compensation benefits for temporary total disability for a year, the claimant Wanda Tanner was released to work with restrictions. However, Tanner either did not find work or did not choose to work.

Under OCGA § 34-9-104 (a), the employer was entitled to convert Tanner from total disability benefits to partial disability benefits. Tanner formerly earned an average of $200 per week and received temporary total disability benefits in the amount of $133.34 per week based on that average weekly wage.

OCGA § 34-9-262 provides: “[WJhere the disability to work . . . is [partial but temporary] the employer shall pay [a benefit] equal to two-thirds of the difference between the average weekly wage before the injury and the average weekly wage the employee is able to earn thereafter.” (Emphasis supplied.) This Code section, however, does not provide a means to determine what a claimant is “able to earn!’ In the absence of such legal guidance, the employer in this case made the assumption that Tanner was “able” to earn a minimum wage 20 hours per week, and, on that basis of theorizing, reduced her to partial disability benefits of $76 per week.

The ALJ, board and superior court rejected the employer’s theorizing because § 34-9-262 does not give a basis for such “theorizing” by the employer. Those forums fixed Tanner’s post-injury wage at $0 because she is not working. The employer filed an application for discretionary appeal, which we granted. Held:

The Workers’ Compensation Act is to be liberally construed to carry out its purpose of providing relief to injured employees while protecting employers from excessive damage awards. Chem Lawn Svcs. v. Stephens, 220 Ga. App. 239, 244 (469 SE2d 375), citing Samuel v. Baitcher, 247 Ga. 71, 73 (274 SE2d 327). In interpreting any statute, “the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a); Copher v. Mackey, 220 Ga. App. 43, 44 (467 SE2d 362). Even where the language of a statute seems plain and unambiguous, it cannot be interpreted as leading to an absurd or foolish result, for we can never ascribe to the legislature a wholly unreasonable intention “or an intention to do a futile and useless thing.” City ofJesup v. Bennett, 226 Ga. 606, 609 (2) (176 SE2d 81).

According to the statutory scheme, the ability to earn — not the propensity to earn — controls the issue presented in this appeal. Under the statutory language the legislature plainly intended a claimant’s benefits to be reduced in these circumstances to an amount which she is “able” to earn. It is not reasonable to conclude the claimant is able to earn nothing because she is earning nothing. While we concede that the legislature could have provided a means to determine what a claimant is “able” to earn whether she earns it or not, it is absurd to award a claimant an increased award of benefits because she refuses to work or for some other reason is not working, on the theory that it cannot be determined what she is “able” to earn because she is not earning it. And it is unreasonable to conclude a claimant is “able” to earn nothing merely because she earns nothing. It was therefore error for the Board to conclude that Tanner is “able” to earn $0 simply because she is earning $0.

We conclude that under the present statutory scheme, when a claimant is “able to earn” but is not earning, in the absence of any legislative guidance the employer may reasonably theorize, based upon proof of available jobs for which the claimant is qualified, what the employee is “able to earn.” The legislature did not intend claimants to not work and thereby avoid a reduced benefit.

Moreover, we think the language which provides that such reduced benefits are to be based on what the improved employee is “able to earn,” necessarily allows the employer to theorize where there is any evidence of ability. What any person is “able” to earn is not defined merely by what a person is earning at any point in time. If the claimant is not working, for whatever reason, nothing in OCGA § 34-9-262 prevents the employer from reasonably determining her “ability.”

Accordingly, the Workers’ Compensation Board erred in reducing the claimant’s “ability to earn” to $0 merely because she is not working, and the superior court erred in affirming the board. The question before the board should be whether the amount the employer’s theorizing as to what the claimant was “able to earn” was reasonable according to the evidence. As to the board’s standard of review or determination, see OCGA § 34-9-102, as amended. The evidence to be considered might include the claimant’s earning power before her injury and her present physical and/or mental ability.

Decided March 12,1997

Reconsideration denied March 26,1997

Hamilton, Westby, Marshall & Antonowich, Catherine D. Buckley, for appellants.

Collins & Eddings, Mike Eddings, for appellee.

The judgment is vacated and the trial court is directed to remand the case to the board for further consideration not inconsistent herewith.

Judgment vacated and case remanded.

Ruffin and Eldridge, JJ, concur.


author: Eldridge, Judge.

text:
    A97A0819.
    THE STATE v. TELENKO.
    (484 SE2d 725)
   Eldridge, Judge.

The trial court granted appellee David Telenko’s motion in autrefois convict preventing the retrial of his case. The state appeals. As the procedural chronology of the instant case is key to the resolution of the issue raised, we set forth the following:

Telenko was indicted in the Superior Court of DeKalb County for the offenses of vehicular homicide, DUI, reckless driving, and involuntary manslaughter. Pursuant to a motion and subsequent hearing, the state was permitted to introduce at trial a DUI similar transaction against the appellee for the purpose of showing course of conduct and bent of mind.

During the closing argument of the state, the prosecutor discussed the similar transaction evidence, thereafter making the comment, “That’s Mr. Telenko. That’s the kind of person we’re talking about.” Following closing arguments, appellee objected to the prosecutor’s statement as an improper comment on appellee’s character; appellee moved for mistrial and moved that the state be barred from retrial as the prosecutor’s comment was intentional misconduct. The trial court reserved ruling on the motion, charged the jury, and sent them out to deliberate.

After approximately two days of deliberation, the jury was unable to reach a verdict. The jury foreperson sent the court a note stating that the jury was “hopelessly deadlocked.” The trial court brought the foreperson into open court and made the following inquiry: “[Court]: Is it your opinion that they will — that this jury will not be able to reach a verdict? [Foreperson]: It is everyone’s opinion. [Court]: Is there any doubt in your mind? [Foreperson]: No, sir.” Immediately thereafter, the trial court dismissed the jury stating, “Well, at this time then I can release you from your responsibilities on this case. You may now discuss the case with anybody you want to or not, as you choose. Sometimes lawyers like to discuss cases with jurors to see how they can better represent their clients, and if a lawyer should contact you or want to talk to you this afternoon and you want to talk about it, you may do so now.” The trial court recessed, the jury left the courtroom, and the attorneys spoke with the dismissed jurors.

After the recess, the trial court raised the issue of the reserved motion for mistrial based on prosecutorial misconduct and asked if there was further argument thereon. After hearing from counsel, the trial court granted the appellee’s motion for mistrial, finding that “the state made an improper comment about the defendant’s character in final argument”; the court withheld judgment on appellee’s motion to bar retrial of the case, suggesting that such would properly be the subject of a further motion and evidentiary hearing. Subsequently, appellee filed a motion in autrefois convict to prevent retrial of the case, claiming that the prosecutor’s comment was made deliberately in order to “goad” the appellee into moving for a mistrial. An evidentiary hearing was held during which all parties agreed that in order to grant the motion, the trial court must find that the prosecutor’s comment was intentionally made for the purpose of influencing the defense to move for mistrial.

Thereafter, the trial court issued an order granting the appellee’s motion in autrefois convict based upon the state’s improper reference to character; however, with regard to the prerequisite finding of deliberate intent, the trial court determined, “It is unnecessary for this court to address the intent issue, however, for this judge believes the circumstances of this case prohibit a retrial without a specific finding that the state intended to ‘goad’ the defense to moving for a mistrial.” The state appeals the granting of the motion. Held:

Decided March 14,1997

Reconsideration denied March 26,1997

J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellant.

“Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion. [Cit.]” (Punctuation omitted.) Reed v. State, 222 Ga. App. 376, 378 (474 SE2d 264) (1996), citing Oregon v. Kennedy, 456 U. S. 667, 676 (102 SC 2083, 72 LE2d 416) (1982). Bad faith conduct, overreaching, or harassment are not decisive factors to prevent retrial; the applicable standard is the intent of the prosecutor in the misconduct, and this intent is a fact question for the trial court to resolve. Id. Thus, contrary to the trial court’s conclusions, a bar to retrial based on prosecutorial misconduct requires a determination regarding such intent. However, this Court need not ascertain the prosecutor’s motives or remand for such, because we find as controlling the procedural posture in which this case comes to us.

The state argues that since a mistrial was granted when the jury was unable to reach a verdict, the granting of appellee’s motion for mistrial was “redundant.” We agree.

While never before confronted with the precise issue presented by competing mistrials in the same case, we, nevertheless, have long been cognizant of when a trial is over: once a jury has reached its verdict in a case, and the same has been presented in open court, the trial has ended. Douglas v. State, 206 Ga. App. 740, 742 (426 SE2d 628) (1992); Maltbie v. State, 139 Ga. App. 342, 345 (228 SE2d 368) (1976). It follows that once a jury is unable to reach a verdict in a case, the same has been affirmed in open court, the jury has been dismissed, the court has recessed, and the parties’ attorneys have discussed the case with the dismissed jurors, the trial has ended. In dismissing the jury, “the effect of the court’s action was a mistrial.” Huff v. State, 207 Ga. App. 686, n. 1 (428 SE2d 818) (1993). Consequently, the trial court’s subsequent declaration of a mistrial based on improper closing argument was a “mere nullity.” Douglas, supra at 742. When the horse has already escaped the stable, shutting the door thereof is a moot act. As such, the granting of appellee’s motion in autrefois convict, which was premised upon a declaration of mistrial that was rendered moot because the trial had ended prior to the declaration, must be reversed.

Judgment reversed.

Birdsong, P. J., concurs. Ruffin, J., concurs in judgment only.

Corinne M. Mull-Milsteen, for appellee.

       Closing arguments in the instant case were not recorded; however, there appears to be no dispute that the substance of the prosecutor’s comment is as noted above.

       A trial judge’s determination with regard to the granting of a motion for mistrial is entitled to the greatest of deference. See, e.g., Bailey v. State, 219 Ga. App. 258 (465 SE2d 284) (1995). However, without something more, “to bar retrial of a criminal defendant, on the sole ground that trial error necessitates reversal of the conviction, is far too high a price for society to pay for the vindication of the rights of criminal defendants under our scheme of government, and was never intended by the Double Jeopardy Clause.” Williams v. State, 258 Ga. 305, 311 (1) (369 SE2d 232) (1988).


author: Judge Harold R. Banke.

text:
    A97A0217.
    ANDERSON v. THE STATE.
    (484 SE2d 783)
   Judge Harold R. Banke.

A jury found Reginald Anderson guilty of possession of cocaine with intent to distribute and acquitted him of possession of marijuana. Anderson received a life sentence. Following the denial of his motion for new trial, Anderson appeals.

On appeal, the evidence must be viewed in a light most favorable to the verdict. Cline v. State, 221 Ga. App. 175 (471 SE2d 24) (1996). Viewed in that light, the State’s evidence showed the following. Based on confidential information, police set up surveillance in a parking lot and awaited the arrival of two suspects in a rust-colored Buick, expected to deliver some cocaine there. After the described vehicle proceeded through the parking lot without stopping, Officer Graham Stacy pursued it in a marked patrol vehicle. Despite Stacy’s activation of both his siren and blue lights, Anderson attempted to elude, running several stop signs and a red light. At an intersection, Stacy observed a package appear to come from the vehicle. Stacy was unable to discern from which side of the vehicle the drugs were tossed. Stacy radioed the location to fellow officers and continued to chase Anderson, increasing his speed to 75 to 80 mph.

After finally stopping Anderson and his passenger, Stacy went back to assist with locating the drugs. Police discovered a knotted, clear plastic bag containing three grams of cocaine and a separate bag of marijuana, containing less than one ounce. When police searched Anderson’s passenger, co-defendant Kirby Taylor, they found almost $600 in cash. Both Anderson and Taylor were indicted for possession of cocaine with intent to distribute and possession of marijuana.

Anderson pleaded guilty to numerous traffic offenses, including failing to stop at three stop signs, running a red light, attempting to elude, reckless driving, and driving with a suspended license. Without objection, the State presented testimony depicting the details of Anderson’s prior conviction for possession of cocaine with intent to distribute. Held:

In his sole enumeration of error, Anderson contends that the evidence was not sufficient to authorize a conviction for possession of cocaine with intent to distribute within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). To support a conviction for possession of cocaine with intent to distribute, the State must prove more than mere possession. Williams v. State, 199 Ga. App. 544 (1) (405 SE2d 539) (1991). Where a conviction hinges on circumstantial evidence, the evidence must exclude every reasonable hypothesis except guilt. OCGA § 24-4-6.

The State’s evidence showed that after Anderson drove through a parking lot without stopping, he attempted to avoid interception. His efforts to elude capture arguably provided circumstantial evidence of guilt. Renner v. State, 260 Ga. 515, 518 (3) (b) (397 SE2d 683) (1990); Reddin v. State, 223 Ga. App. 148, 150 (1) (476 SE2d 882) (1996). However, this circumstantial evidence of guilt is equally consistent with a theory that Anderson attempted to evade the police because hé was in possession of illegal drugs or because his license was suspended.

Officer David Wood, who was not admitted as an expert on drug transactions, could not state that the three-gram amount of cocaine proved distribution. In fact, Wood testified that the small amount was consistent with both a user quantity and distribution quantity. See Stephens v. State, 219 Ga. App. 881, 883 (1) (467 SE2d 201) (1996) (physical precedent only) (unqualified testimony by officer not tendered as expert was not competent evidence on intent to distribute). Later, over objection, Woods testified that it was his belief that the three grams indicated distribution when coupled with the amount of cash on Anderson’s co-defendant and the aborted drug transaction. See-Davis v. State, 209 Ga. App. 572, 573 (2) (434 SE2d 132) (1993) (conviction reversed because officer who testified not qualified as expert and State failed to lay sufficient foundation qualifying him).

Further, we note that the purportedly similar transaction was significantly dissimilar. In the earlier case, Anderson was found in possession of rock cocaine, unlike the powder here. The rocks were packaged in nine separate baggies concealed on Anderson’s person, unlike the single package of powder here. Anderson had nearly $400 cash on his person, whereas here he had none. We question whether such dissimilar facts could provide probative evidence of intent to distribute in this case.

No one testified that they observed Anderson distributing drugs. The State offered no testimony from its alleged informant or any evidence that a buyer was ready and waiting in the parking lot. The anticipated drug deal never took place. See James v. State, 214 Ga. App. 763, 764 (1) (449 SE2d 126) (1994). Nor was any drug-related paraphernalia, such as scales, glassine packages, cocaine-tainted spoons, or the division of cocaine into multiple packets, recovered and offered into evidence. Compare Holbrook v. State, 177 Ga. App. 318, 321 (2) (339 SE2d 346) (1985).

Decided March 26,1997.

Mark T. Phillips, for appellant.

Britt R. Priddy, District Attorney, Tracia M. King, Assistant District Attorney, for appellee.

The State’s scant circumstantial evidence was not sufficient to exclude every reasonable hypothesis except Anderson’s guilt, such as the single packet of powder being for the personal use of Anderson or his co-defendant. OCGA § 24-4-6. See Brown v. State, 260 Ga. 153, 155 (1) (391 SE2d 108) (1990). Although without question the evidence was sufficient to prove possession, the State failed to offer any direct evidence of Anderson’s intent to distribute. Even the State’s nontendered expert was ambivalent as to whether the small quantity indicated distribution or personal consumption.

Notwithstanding the dearth of evidence as to the essential element of intent to distribute, the jury was not afforded the option of convicting Anderson on the lesser included offense of possession of cocaine. The jury clearly was not authorized to infer from the similar transaction evidence alone that the only reasonable inference permissible from Anderson’s possession was that he intended to distribute the contraband. See Anderson v. State, 215 Ga. App. 426, 428 (1) (451 SE2d 103) (1994) (physical precedent only). Because the evidence of intent to distribute is so meager, we reverse. OCGA § 16-13-30. Dyer v. State, 218 Ga. App. 879, 880 (1) (463 SE2d 718) (1995). Inasmuch as the evidence was sufficient to support Anderson’s conviction for possession of cocaine, we remand with direction that a conviction and sentence be entered for that offense. Hogan v. State, 193 Ga. App. 543 (1) (388 SE2d 532) (1989).

Judgment vacated and case remanded with direction.

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

       The record does not show that Anderson challenged the propriety of Stacy’s pursuit.

       The trial court charged the jury on expert witnesses.


text:
    A97A0253.
    SCOTT v. THE STATE.
    (484 SE2d 780)
   Ruffin, Judge.

A jury found David Scott guilty of wearing a hood with intent to conceal one’s identity, carrying a weapon on school property, terroristic threats, aggravated assault upon a school official, aggravated battery upon a school official, armed robbery, criminal attempt — theft by taking a motor vehicle, and possession of a knife during the commission of a felony. Scott appeals his convictions, and we affirm.

1. In his first enumeration of error, Scott contends the trial court erred in finding that the State’s explanation for striking juror no. 30 was racially neutral. According to Scott, the State struck juror no. 30, a black female, yet did not strike juror no. 28, a similarly situated white female, in violation of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Following argument, the trial court ruled that the State presented a legitimate race-neutral reason for striking juror no. 30. We agree.

“The trial court’s decision rests largely upon assessment of the prosecutor’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.” (Citation and punctuation omitted.) Moak v. State, 222 Ga. App. 36, 39 (3) (473 SE2d 576) (1996). See also Johnson v. State, 266 Ga. 775, 777 (4) (470 SE2d 637) (1996). Furthermore, “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from the opponent of the strike.” (Citations and punctuation omitted.) Whatley v. State, 266 Ga. 568, 570 (3) (468 SE2d 751) (1996).

While Scott discusses a number of potential jurors in his brief, his enumeration of error states that he is challenging only the State’s strike of juror no. 30 from the venire. Hence, we need address only Scott’s arguments relating to this particular venireperson.

Scott is a black male who was 19 years old at the time of the alleged offense and his trial. The State’s stated reason for striking juror no. 30, who was black, was that she had a twenty-year-old child, similar in age to Scott, and three other children, ages sixteen, twelve and ten. According to the prosecutor, “I was concerned that that particular juror would be sympathetic. I noted that this juror was nice but despite that fact I felt that she would not be a good juror in this case because of the children that she had that were close in age.” Scott contends this explanation is not racially neutral because juror no. 28, who was white, had a 17-year-old child, her demographic information was virtually identical to juror no. 30, and she was not struck by the State.

It is clear that a prospective juror’s age or the ages of the prospective juror’s children can justify the State’s exercise of a peremptory strike. Whatley, supra at 570; Ledford v. State, 207 Ga. App. 705, 706 (1) (429 SE2d 124) (1993). In this case, the State’s concern about the ages of the jurors and their children was related to the case to be tried, and it is clear that juror no. 30 had two children close in age to Scott, while juror no. 28 had only one child close in age to Scott. In addition, Scott “failed to establish that the reasons given by the State were merely pretexts for purposeful racial discrimination. [Cits.]” Henry v. State, 265 Ga. 732, 734 (2) (462 SE2d 737) (1995). Since “the trial court’s finding of purposeful discrimination is a finding of fact which ordinarily must be given great deference by an appellate court, since . . . the trial court can visually and auditorially observe the demeanor of both prospective jurors and counsel” (Ellerbee v. State, 215 Ga. App. 312, 316 (7) (a) (450 SE2d 443) (1994)), and since there exists some evidence to support the trial court’s ruling that the State struck juror no. 30 for race-neutral reasons, we cannot conclude that the trial court’s ruling in this case was clearly erroneous. See also Gardner v. State, 225 Ga. App. 427 (483 SE2d 912) (1997).

2. In his second enumeration of error, Scott asserts the trial court erred in failing to charge the jury on his sole defense of misfortune or accident. Scott admits that he did not request such a charge, but contends that the court should have given this charge sua sponte because his sole defense as to the aggravated battery charge was that the victim was cut or stabbed as a result of misfortune or accident.

The evidence, viewed in a light most favorable to support the verdict, shows as follows. Scott attacked Beverly Croom, a school principal, as she exited the school. Brandishing a butcher’s knife, Scott told Croom he would kill her if she did not let him in the locked building. Croom tried to move away from Scott, but Scott pulled the knife back and stabbed her from her left side across to the center of her stomach. Scott admitted Croom was trying to run from him when he grabbed her and pulled her back. He further admitted that he intentionally was on school property with the knife, that he tried to steal Croom’s car, and that he had the knife in his hand while he tried to get Croom’s car keys. However, Scott argues that Croom was stabbed by accident as she tried to run and he pulled her back.

“Every person is presumed to intend the natural and probable consequences of his conduct, particularly if that conduct be unlawful and dangerous to the safety or lives of others.” (Citation and punctuation omitted.) Helton v. State, 216 Ga. App. 748, 749 (455 SE2d 848) (1995). A defendant is not “entitled to a charge on the defense of accident simply because his criminal attempt had the unintended consequence of completing the offense by actually causing a violent injury to the victim. [Cit.]” Grude v. State, 189 Ga. App. 901, 902 (1) (377 SE2d 731) (1989). See also Gaston v. State, 209 Ga. App. 477 (1) (433 SE2d 306) (1993). “Although [Scott] gave conclusory testimony that the [stabbing] of the victim had been an accident, his description of the actual events shows that the [stabbing] was nevertheless the result of his criminal conduct.” Grude, supra at 902 (1). Scott’s testimony clearly does not show that his stabbing resulted from an accident, rather than his intent to commit a crime upon Croom. “His testimony shows only that his criminal attempt to commit an aggravated assault upon the victim was ‘accidentally’ completed in a manner other than he had intended.” Id.

Decided March 26,1997.

Elizabeth A. Baker, for appellant.

Since Croom was stabbed with the knife Scott used to place her in reasonable apprehension of immediate violent injury, even if the stabbing was unintentional, the offense was aggravated assault, and a charge on accident was not warranted. Grude, supra. Accordingly, the trial court did not err in failing to sua sponte give a jury charge on misfortune or accident.

3. In his final enumeration, Scott asserts there was insufficient evidence to satisfy the corroboration requirement of the terroristic threats statute. OCGA § 16-11-37 (a). This contention is not supported by the record.

“As in rape cases, the quantum of corroboration need not in itself be sufficient to convict, but need only be that amount of independent evidence which tends to prove that the incident occurred as alleged. [Cit.] Slight circumstances may be sufficient for corroboration and the question of corroboration is one solely for the jury. If there is any evidence of corroboration, this court will not go behind the jury verdict and pass on its probative value. [Cit.]” Moss v. State, 148 Ga. App. 459, 460 (1) (251 SE2d 374) (1978).

In the present case, Croom testified that Scott told her he would kill her if she did not let him into the building. While Scott denied making this threat, “[Croom’s] testimony in this regard was sufficiently corroborated by the evidence concerning the events which transpired immediately before and after [Scott] made the asserted threats.” Steele v. State, 196 Ga. App. 330, 331 (3) (396 SE2d 4) (1990). The laceration received by Croom when she was stabbed, as well as the testimony of a witness who observed Croom immediately following the incident and who stated that Croom was “at the point of hysteria,” provides sufficient corroboration for a rational trier of fact to find Scott guilty beyond a reasonable doubt of the offense of committing terroristic threats upon Croom. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Martin v. State, 219 Ga. App. 277, 283 (10) (464 SE2d 872) (1995) (testimony that the victim appeared nervous, scared, frightened, and terrified was sufficient evidence corroborating a threat against the victim).

Judgment affirmed.

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

Robert E. Keller, District Attorney, David B. Hornsby, Assistant District Attorney, for appellee. •


author: POPE, Presiding Judge.

text:
    A97A0312.
    LEE v. STATE OF GEORGIA.
    (484 SE2d 777)
   POPE, Presiding Judge.

The pivotal question in this forfeiture case under OCGA § 16-13-49 is whether the trial court erred by failing to allow William Steven Lee to correct a clerical error and amend his answer 83 days after originally filing it. We conclude that the court erred in not allowing Lee to correct the mistake and therefore reverse.

William Steven Lee was stopped by Albany Police Department officers while driving his 1987 pickup truck, and in the ensuing search, officers found narcotics. Lee was charged with several offenses, including possession of dextropropoxyphene with intent to distribute. He pled guilty under the provisions of the First Offender Act. The State filed a complaint under OCGA § 16-13-49 for forfeiture of Lee’s truck and the drugs; the complaint was served on Lee on December 28, 1995.

On January 26, 1996, Lee filed an answer to the complaint. As a result of a clerical error, the answer contained two copies of the second page, but the third page was omitted. The second page of the answer contained specific responses to the allegations of the complaint; the filed third page (which was actually page four) began with a subsection F (there are no such prior labeled subsections) and specifically referenced OCGA § 16-13-49 (d) (2), (d) (6), (e) (1) and (e) (3). The answer also contained a fourth page and a fifth page, which were a verification.

On February 6, 1996, the State served a notice of hearing on Lee scheduling trial for February 15. On February 14, Lee filed a motion to continue the trial, which the court granted. On February 21, the State served Lee with notice that the trial would be held April 4.

On April 4, 1996, the State served Lee with a motion to dismiss the answer and for order of forfeiture, arguing that Lee’s answer was insufficient under OCGA § 16-13-49 (o) (3). Lee claims that he made an oral motion to amend the answer, but there is no transcript of that hearing before us. Two weeks later, on April 18, Lee filed a response to the State’s motion and a written motion to amend his answer and correct the clerical error pursuant to OCGA § 9-11-15.

The court denied Lee’s motion to amend and concluded that the answer was legally insufficient under OCGA § 16-13-49 (o). Accordingly, the court dismissed Lee’s answer and determined that his truck and the dextropropoxyphene would be forfeited to the State.

Lee appeals, arguing that the trial court erred by refusing to permit him to amend his answer. At the outset of our analysis, it is important to note that without its third page, Lee’s answer was insufficient under OCGA § 16-13-49 (o) (3), and Lee does not contend that the answer submitted was legally sufficient.

Lee argues that the Civil Practice Act applies to forfeiture actions under OCGA § 16-13-49 and that OCGA § 9-11-15 (a) mandated that the amendment be allowed. OCGA § 9-11-15 (a) states: “[a] party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.”

Several statutory provisions guide our present inquiry. First, OCGA § 9-11-81 provides that the Civil Practice Act “shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law; but, in any event, the provisions of this chapter governing the sufficiency of pleadings, defenses, [and] amendments . . . shall apply to all such proceedings.” (Emphasis supplied.) On the other hand, OCGA § 16-13-49 (o) (3) provides that an answer shall be filed within 30 days after the service of the summons and complaint and that in “addition to complying with the general rules applicable to an answer in civil actions, the answer must set forth [the specific requirements listed in subsections (A) through (G)].” OCGA § 16-13-49 (o) (4) states: “[i]f at the expiration of the period set forth in paragraph (3) of this subsection no answer has been filed, the court shall order the disposition of the seized property as provided for in this Code section.” OCGA § 16-13-49 (o) (5) provides that if an answer has been filed, “a hearing must be held within 60 days after service of the complaint unless continued for good cause and must be held by the court without a jury.” “[T]he apparent purpose of [OCGA § 16-13-49 (o) (5)] is to ensure a speedy resolution of contested forfeiture cases in the courts, as well as a speedy resolution of property rights. [Cits.]” State v. Henderson, 263 Ga. 508, 511 (436 SE2d 209) (1993).

Although this Court has not addressed the issue of whether a mistake in filing an answer pursuant to OCGA § 16-13-49 (o) (3) may be amended, this Court has addressed the issue of whether an amended answer may be filed under that statute when there is no claim of mistake. In Jarrett v. State of Ga., 220 Ga. App. 559, 561 (2) (472 SE2d 315) (1996), there was no indication that the claimants sought to amend their answers because of clerical errors; instead the answers simply failed to set forth many particulars required by OCGA § 16-13-49 (o) (3). The Jarrett court rejected the claimants’ argument that the amended answers, filed more than 60 days after service of the forfeiture petitions, complied with the statute and related back to their first answers so as to resurrect their claims. In determining that the State’s motions for judgment of forfeiture and motions to dismiss the amended answers were properly granted, the Court relied on the statute’s clearly stated requirement that an answer must be filed within 30 days from service of the complaint.

Again, in Lockett v. State of Ga., 218 Ga. App. 289 (460 SE2d 857) (1995), the claimant did not claim that her failure to file an unverified answer was the result of mistake. There the Court determined that the unverified answer, which was not verified until months after the hearing (and seven months after the answer was filed), did not suffice to evidence a claim to ownership of property under OCGA § 16-13-49 (o) (3) and (n) (3). In Lockett, the Court stated: “[permitting those who contest a forfeiture to delay substantiating their claim of ownership until months after the statutory hearing has concluded contradicts the very purpose of this statutory scheme and should not be permitted.” Id. at 291. Compare Knodel v. State of Ga., 222 Ga. App. 514 (474 SE2d 700) (1996) (amendment filed within 30 days after the State’s notice of forfeiture published for the second time); State of Ga. v. Gonzales, 213 Ga. App. 661 (445 SE2d 808) (1994) (claimant allowed to amend his answer before the first scheduled hearing under OCGA § 16-13-49 (o) (5)).

Both Jarrett and Lockett comport with this Court’s strict interpretation of OCGA § 16-13-49 and with the rule that the requirements of the specialized statute ordinarily prevail over the more general requirements of the Civil Practice Act. “It is well established that the legislature may impose pleading requirements in special statutory proceedings in addition to those found in the Civil Practice Act and in such cases, the sufficiency of a pleading must be judged in light of the specific statutory requirements. [Cits.]” State of Ga. v. Alford, 264 Ga. 243, 245 (2) (a) (444 SE2d 76) (1994); see also Fulton v. State of Ga., 183 Ga. App. 570 (359 SE2d 726) (1987) (OCGA § 9-11-55 not applicable to forfeiture actions under OCGA § 16-13-49).

Nevertheless, where the failure to file a legally sufficient answer under OCGA § 16-13-49 (o) (3) is clearly the result of a mistake, an amendment to correct the mistake should be allowed. Despite the strict requirements for answers under that statute, prohibiting the amendment given these facts would be unduly harsh. As with the similarly strict statutory scheme which governs medical malpractice affidavits under OCGA § 9-11-9.1 (e), in cases under the drug forfeiture statute an amendment should be allowed if a court determines that the claimant had prepared the requisite answer under OCGA § 16-13-49 (o) (3) and that the failure to file it was the result of a mistake. Accordingly, the court erred in failing to allow Lee to file the page which was erroneously omitted from his answer.

Decided March 26,1997.

Terry J. Marlowe, for appellant.

Britt R. Priddy, District Attorney, Anthony C. Lee Ding, for appellee.

This result comports with cases which have allowed the State to correct minor errors in its petitions for drug forfeiture. For instance, in State ofGa. v. Croom, 168 Ga. App. 145 (1) (308 SE2d 427) (1983), the State was allowed to change the vehicle owner’s name in the drug forfeiture petition. Similarly, in Griffin v. State of Ga., 211 Ga. App. 750 (1) (440 SE2d 483) (1994), and State of Ga. v. Walls, 202 Ga. App. 899 (415 SE2d 921) (1992), the State was permitted to amend errors in the petitions regarding the correct Code section under which the actions were brought.

Judgment reversed.

Johnson and Blackburn, JJ, concur.

       The State’s argument that this guilty plea renders Lee’s arguments here moot is without merit. See generally Thorp v. State ofGa., 264 Ga. 712 (450 SE2d 416) (1994).

       In Alford, the answer at issue was an amended one. The Supreme Court analyzed the adequacy of that answer for purposes of OCGA § 16-13-49 (o) (5), but did not address whether the amendment itself was proper.


text:
    A97A0384.
    THE STATE v. WILLIAMS.
    (484 SE2d 775)
   Birdsong, Presiding Judge.

In this DUI case, the State appeals the trial court’s grant of Glenda Williams’ motion to suppress. See OCGA § 5-7-1 (a) (4). Evidence on the hearing showed that on the evening of May 20, 1996, someone called Cobb County’s 911 service and stated, “my girlfriend’s trying to leave. She’s real upset. She’s been drinking tequila, and I don’t want her to leave.” The caller did not give his name but said that he was “across the street” from 6041 Blackhawk Trail and that the girl friend drove a green “5.0 Mustang.” He hung up before the operator could obtain any more information.

Approximately an hour later, the 911 operator dispatched two Cobb police officers to 6041 Blackhawk Trail and relayed the information given by the caller. After stopping in front of that address, the officers saw a green Ford Mustang 5.0 coming down the street. Because the officers believed this car to be the one for which they were looking, one officer waved his arm for it to stop. Williams, the driver, stopped in her own driveway 20 feet past the officers. An officer approached Williams and asked for her license and registration, at which time he noticed alcohol on her breath. Subsequent field sobriety tests led to her arrest for DUI. The trial court found the officers lacked the reasonable articulable suspicion necessary to stop Williams and suppressed the resulting evidence. Held:

1. The State argues the officers did not “stop” Williams, but rather approached her after she stopped of her own accord in her driveway. ‘When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Citation and punctuation omitted.) State v. Diamond, 223 Ga. App. 164, 166 (477 SE2d 320). The trial court found, as a matter of fact, that Williams complied with the officers’ request to stop, and its finding is supported by evidence. See Philpott v. State, 194 Ga. App. 452, 453 (1) (390 SE2d 664). Therefore, this argument is without merit, and the question is “whether the officer[s] had reasonable grounds, based on specific and articulable facts, for making the stop.” Hansen v. State, 222 Ga. App. 537, 538 (1) (474 SE2d 735).

2. An investigative stop of a vehicle must be based on “articulable suspicion.” Id. On numerous occasions, this Court has cited Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301), for the proposition that “articulable suspicion” may not be grounded in an anonymous tip alone. See, e.g., State v. Ball, 207 Ga. App. 729, 731-732 (429 SE2d 258). Here, the trial court determined the officers based their stop on information received from an unidentified male. The record supports its finding that this person, who did not give his name, was an “anonymous tipster.” See State v. Sapp, 214 Ga. App. 428, 429 (1) (448 SE2d 3); see also Stewart v. State, 217 Ga. App. 45, 47 (456 SE2d 693) (distinguishing “anonymous tipster” from “concerned citizen”).

Unlike Ball, supra, the officers in this case had no information showing the tip to be reliable and no information corroborating the tip. In Vansant v. State, 264 Ga. 319, 320-321 (2) (443 SE2d 474), the Supreme Court found improper a traffic stop based on information that a vehicle described only as a “white van” had been involved in a hit-and-run accident in the area. The Court held the lack of specific information precluded a finding of articulable suspicion. Id.

In this case, similarly, this anonymous tipster made a generalized statement that an unnamed “girlfriend” drove a green Ford Mustang 5.0. As the trial court noted, the tipster did not even claim that this “girlfriend” had consumed too much alcohol to drive safely or was engaged in any criminal activity. See State v. Moon, 217 Ga. App. 790, 791 (459 SE2d 441). The information received from the tipster did not specifically identify the driver or the vehicle. See Sapp, supra at 429-430. The tipster provided police with no prediction by which his reliability could be tested. Id. Further, when the officers stopped the Mustang, it was driving toward and not away from, the address given. Under these circumstances, the anonymous tip was not sufficiently detailed to provide the officers with articulable suspicion to stop Williams. See Moon, supra; Sapp, supra at 429-430; Moreland v. State, 204 Ga. App. 218, 219 (418 SE2d 788); see also McKinley v. State, 213 Ga. App. 738, 740 (445 SE2d 828). As the officers saw Williams commit no traffic violations prior to stopping her, the trial court did not err by granting Williams’ motion to suppress. Vansant, supra.

Decided March 26,1997.

Benjamin F. Smith, Jr., Solicitor, Laura J. Murphree, Barry E. Morgan, Assistant Solicitors, for appellant.

Jacket, Rainey, Marsh & Busch, James L. Rainey, Kimberly S. Blackwell, for appellee.

The cases the State cites are distinguishable. In State v. McFarland, 201 Ga. App. 495 (411 SE2d 314); Holcomb v. State, 191 Ga. App. 379 (381 SE2d 594), and State v. Noble, 179 Ga. App. 785 (347 SE2d 722), police received information from concerned citizens that a specific suspect was intoxicated or appeared to be intoxicated. None of these cases involved anonymous tips, as in each instance the citizen’s identity was known to police or the citizen spoke directly to the investigating officer. In Easterlin v. State, 216 Ga. App. 112, 113-114 (452 SE2d 801), the anonymous tip was verified when the officer observed the defendant driving erratically. In Philpott, supra, the Court did not address the source of the officer’s information.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


text:
    A97A1075.
    SMITH v. THE STATE.
    (484 SE2d 773)
   Judge Harold R. Banke.

A jury convicted Solomon Smith of robbery by force, theft by receiving, and robbery by sudden snatching. Following the denial of his motion for new trial, Smith enumerates four errors.

On appeal, the evidence must be viewed in the light most favorable to the verdict. Rachel v. State, 247 Ga. 130,131-132 (1) (274 SE2d 475) (1981). Viewed in that manner, the State’s evidence was as follows. While riding in a local park, Robert Seckenger was suddenly struck in the face and knocked off his bicycle by Smith. Smith grabbed Seckenger’s radio, watch, and bicycle and threatened to shoot him. Later the same day, Smith pawned the bicycle at Welsh Pawn Shop which supplied the police with a pawnshop card issued to Solomon Smith and containing Smith’s thumbprint. After the ID Unit matched the pawnshop print with its file prints for Smith, police contacted Seckenger. Seckenger identified Smith from a photospread, subsequently recovering his bicycle from the pawnshop. The photo array consisted of six photographs of black males with mustaches. At trial, Seckenger expressed certainty that the perpetrator was Smith, testifying, “I’ll never forget it [his face].” Smith admitted pawning the bicycle but claimed he had purchased it from a homeless man with an incomplete name and no known address.

Six days after robbing Seckenger, Smith robbed again. The victim of the robbery by sudden snatching, attorney Bernt Meyer, testified that as he was completing his shower, he spotted Smith at his dresser reaching for something. After Smith bolted, Meyer’s son pursued him without success. Meyer’s son knew Smith as “Miami” and “Solomon” and had a telephone number which investigators determined belonged to Smith’s upstairs neighbor. Meyer reported that his leather money clip with $80 to $90, a Seiko watch, and a Marine Corps ring had been stolen. Meyer testified that two or three days after the robbery, a man who identified himself as “Solomon” threatened him during a telephone call, warning that if Meyer contacted the police or caused him any further problem, he would be “very sorry.” Held:

1. Counsel was not ineffective for electing not to subpoena Smith’s two purported alibi witnesses. In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), Smith must show not only that his counsel’s performance was deficient but also that the deficient performance prejudiced his defense. Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995).

At the new trial motion hearing, Smith’s trial counsel testified that Smith never mentioned any alibi witnesses until the day of trial. At the motion hearing, Smith initially claimed that both his fiancee and his boss could prove he was at work on Wilmington Island and not at Forsyth Park at the time of the bicycle robbery. Later Smith admitted that his fiancee would not be able to provide an alibi for 8:45 a.m. because all she could say was that she saw him leave for work at 7:45 that morning. Counsel testified that at Smith’s behest he contacted Smith’s boss who informed him that he could not recall whether Smith worked the day of the robbery and advised that his wife could check the business records. When counsel contacted her, she stated that the business records indicated Smith had not worked that day. Under these facts, Smith cannot show the requisite prejudice to his defense. Stephens, 265 Ga. at 121 (2). The trial court’s finding that Smith was not denied effective assistance of counsel was not clearly erroneous and must be affirmed. Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990).

2. Counsel was not ineffective for electing not to file a motion to suppress Seckenger’s identification of Smith from the photo array which Smith contends was unduly suggestive. Generally, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy. Stephens, 265 Ga. at 121-122.

Counsel elected, not to file a motion to suppress the identification, instead opting to focus on the issue of suggestibility at trial. During the trial, he challenged the composition of the array as well as the reliability of Seckenger’s identification based on the array. Given the certainty of Seckenger’s in-court identification of Smith, coupled with the pawnshop card issued to Smith on the same day as the bicycle robbery, and Smith’s flimsy explanation as to how he acquired the bicycle, Smith failed to prove the requisite harm and error needed for reversal. Durham v. State, 129 Ga. App. 5, 6 (3) (198 SE2d 387) (1973).

3. The trial court did not err in denying Smith’s motion to sever the charges for robbery by force and robbery by sudden snatching. At its discretion, a trial court may order separate trials if the interest of justice so requires. OCGA § 16-1-7 (c); Slocum v. State, 230 Ga. 762 (1) (199 SE2d 202) (1973); see Jarrell v. State, 234 Ga. 410, 412 (1) (216 SE2d 258) (1975); Mathis v. State, 231 Ga. 401, 403 (1) (202 SE2d 73) (1973).

In denying the motion to sever, the trial court determined that the two robbery counts showed a common scheme or plan. See Davis v. State, 223 Ga. App. 346, 347-348 (2) (477 SE2d 639) (1996). The robberies were closely connected in time. After considering the number of offenses, the complexity of the case, the ability of the jury to distinguish the evidence and to apply the law intelligently to each offense, as well as the risk of prejudice against a joint disposition, the trial court concluded that it was proper to hear both cases together. See Coats v. State, 234 Ga. 659, 662 (4) (217 SE2d 260) (1975); Lane v. State, 210 Ga. App. 738, 739 (1) (437 SE2d 479) (1993). Under these facts, we are not able to conclude that the trial court abused its discretion in denying the motion to sever. Wilson v. State, 245 Ga. 49, 54 (4) (262 SE2d 810) (1980).

4. Smith’s remaining enumeration challenges the verdict on general grounds. Inasmuch as this enumeration is not supported by argument or authority, it is deemed waived. Jackson v. State, 213 Ga. App. 420, 421 (444 SE2d 854) (1994). In any event, given Smith’s admission that he pawned the bicycle and the certainty of both victims’ eyewitness identification of Smith, a rational trier of fact could have found the essential elements of the crimes with sufficient certainty to satisfy Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided March 26,1997.

Orin L. Alexis, for appellant.

Spencer Lawton, Jr., District Attorney, Christine M. Sieger Barker, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       In solving the second robbery also at issue here, which occurred several days later, investigators created a photo array from which Seckenger identified Smith as his assailant.