text:
    A89A0098.
    JONES v. THE STATE.
    (383 SE2d 168)
   Beasley, Judge.

Jones appeals his convictions and sentences for criminal damage to property in the second degree, OCGA § 16-7-23, and possession of a firearm by a convicted felon, OCGA § 16-11-131, for shooting and killing a cow with calf on the owner’s fenced-in property.

1. Appellant contends the court erred in admitting into evidence an inculpatory letter which he allegedly wrote to the sheriff, on the ground the totality of the surrounding circumstances shows it was involuntary.

Specifically, Jones cites the following as showing involuntariness. 1) He was under considerable strain because he feared returning to prison and was asking for reward/benefit from the sheriff. 2) At the time he was advised of his rights as articulated in Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), the day after his arrest, he expressed his desire for an attorney; despite this both the letter and an interrogation by the sheriff, which was ruled inadmissible, occurred after defendant’s request for an attorney but before he was able to consult with one. 3) The inadmissible conversation with the sheriff may have precipitated the letter. 4) His bond was kept at an artificially high level.

The trial court conducted a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), and concluded that the statements in the letter and its delivery to the sheriff constituted a voluntary and spontaneous communication initiated by Jones without any coercive activity on the part of the sheriff or any other involved person; Jones had been fully and completely advised of his rights (the day after his arrest); the letter was received sometime during Jones’ incarceration (of approximately two months); the statements were made without any threats or promises of reward or benefit; there was no evidence otherwise; Jones was not under the influence of alcohol or drugs.

“Factual and credibility determinations as to voluntariness of a confession . . . made by a trial judge at a suppression hearing . . . must be accepted by appellate courts unless such determinations are clearly erroneous. [Cit.]. . . .” Griswold v. State, 159 Ga. App. 22, 23 (2) (282 SE2d 679) (1981).

“[A]n analysis of whether a suspect who has invoked his right to counsel under Miranda, supra, has later waived that right proceeds in two steps. First, a determination as to whether the defendant initiated further talks with the police, and second, if so, whether his waiver was shown to be voluntary under the totality of the circumstances. Oregon v. Bradshaw, 462 U. S. 1039 (103 SC 2830, 77 LE2d 405) [1983]. See also Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) [1981].” Sanders v. State, 182 Ga. App. 581, 582 (1) (356 SE2d 537) (1987).

The record supports the trial court’s finding that Jones initiated the communication to the sheriff. It also supports the finding that Jones’ waiver was voluntary under the totality of the circumstances. The fact that the admission by letter was made while Jones was incarcerated does not in and of itself justify exclusion on the basis of involuntariness. Russell v. State, 196 Ga. 275, 283 (2) (26 SE2d 528) (1943). Furthermore, there was no evidence of threats or promises of benefit or reward made to Jones (such as release from jail or assignment to run-around status) as inducement for the letter, no evidence the letter was prompted by other statements later found inadmissible, and no evidence Jones’ bond was set extraordinarily high. It is notable that the letter with the admission was sent after defendant’s stepfather and defendant had, before defendant’s arrest, visited the sheriff and offered to pay for the cow.

The trial court’s determination of voluntariness was not clearly erroneous; therefore, we find no error in the admission of appellant’s letter confession into evidence.

2. Appellant contends he was denied due process and thus his right to a fair trial under the Federal and State Constitutions when agents of the State failed to preserve physical evidence by disposing of the bullet taken from the cow after the bullet was inadvertently sawed in half and disposing of numerous other notes or letters received by the sheriff allegedly from him.

Jones argues that the accident causing the bullet to be destroyed kept him from proving that the fatal bullet came from some weapon other than the .22 caliber rifle as alleged by the State. The destruction of the notes meant that neither counsel nor the jury had the opportunity to make an independent judgment as to whether the inculpatory letter had been written by him; the basis for the sheriff’s identification of him as the writer could not be questioned; the notes were evidence of his state of mind, which would show involuntariness.

Although appellant filed numerous pretrial motions including an “Omnibus Motion” which, inter alia, asked for ballistics examination, he did not, either prior to or during trial, complain about the destruction of evidence. “This court will not consider issues raised for the first time on review. Bowen v. State, 173 Ga. App. 361, 362 (4) (326 SE2d 525) (1985).” Tolbert v. State, 180 Ga. App. 703, 704 (3) (350 SE2d 51) (1986).

Judgment affirmed.

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

Decided June 2, 1989.

Morris & Webster, Lee W. Fitzpatrick, for appellant.

David E. Perry, District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Carley, Chief Judge.

license: Public Domain

text:
    A89A0315.
    BROWN v. THE STATE.
    (383 SE2d 170)
   Carley, Chief Judge.

After appellant was indicted for possession of cocaine, he filed a pre-trial motion to suppress. The trial court denied the motion but certified its order for immediate review. Appellant’s application for an interlocutory appeal from the denial of his motion to suppress was granted by this court.

The evidence, when construed most favorably for the State, is as follows: Appellant arrived at Hartsfield International Airport for a flight to California. While waiting for his flight, he attracted the attention of officers simply because he appeared to them to be “affluent.” Although they had neither probable cause nor an articulable suspicion to believe that appellant was carrying contraband, the officers decided to question him. Appellant freely consented to the officers’ request to conduct a search of the bag that he was carrying. This search revealed a large amount of cash, but no contraband. Appellant’s explanation was that he owned a store and needed the cash to purchase merchandise while in California. The officers nevertheless informed appellant that they were seizing his bag and cash pending their further investigation. The officers told appellant that he could either accept an immediate receipt for the “approximate” amount of the cash or he could accompany them to their office and obtain a receipt for the exact amount. Appellant accompanied the officers. Upon arrival at their office, the officers did not immediately undertake to count the cash and provide appellant with a receipt. Instead, the time was employed in making telephone calls. The officers eventually determined that appellant was on probation for a drug-related offense. Shortly thereafter, one of the officers observed three small packets of what appeared to be cocaine in plain view on the floor near the chair where appellant was seated. This cocaine was seized and appellant was formally arrested. A subsequent search of his person revealed .4 grams of cocaine.

On this evidence, appellant moved to suppress the cocaine that had been found on his person, urging that its discovery was the product of his unlawful detention by the officers pending their return of his property or their providing him with a receipt therefor. It was and is the State’s contention that, prior to his formal arrest, appellant had never been placed in detention. According to the State, appellant had voluntarily agreed to accompany the officers who, upon their discovery of the cocaine on the floor of their office, had probable cause to arrest him and search his person. Accordingly, the issue presented for resolution is whether, prior to his formal arrest, appellant had been subjected to an unlawful detention by the officers or whether appellant had voluntarily subjected himself to the encounter with them.

Regardless of the officers’ justification for their initial approach of appellant, that original confrontation clearly resulted in an unlawful seizure of appellant’s bag and cash. After the consent search of appellant’s bag had revealed no contraband, he should have been allowed to leave with his property because the officers had absolutely no probable cause or articulable suspicion to seize it. “We refuse to permit the [Sjtate to bootstrap the presence of a large amount of cash in [appellant’s bag] as a bolster for probable cause [or articulable suspicion justifying a seizure].” State v. Smith, 164 Ga. App. 142, 147 (2) (296 SE2d 141) (1982). Thus, appellant’s purported “voluntary” act of accompanying the officers for the ostensible purpose of receiving a receipt was the product of an unlawful seizure of his belongings. The State urges that it was not appellant’s person which was seized and that he was voluntarily present in their office when the cocaine was discovered on the floor in close proximity to him. The Supreme Court of the United States, however, has recognized that the seizure of one’s property from his immediate presence is the functional equivalent of the seizure of his person. “ ‘At least when the authorities do not make it absolutely clear how they plan to reunite the suspect and his possessions at some future time and place, seizure of the object is tantamount to seizure of the person. This is because that person must either remain on the scene or else seemingly surrender his effects permanently to the police.’ [Cit.]” United States v. Place, 462 U. S. 696, 708 (III), fn. 8 (103 SC 2637, 77 LE2d 110) (1983). Accordingly, at least until such time as the officers had made it “absolutely clear” to appellant how they intended to reunite him with his bag and cash, their unlawful seizure of his property was tantamount to an unlawful seizure of his person. An offer to give appellant an immediate receipt for the “approximate” amount of the cash would hardly suffice to make its future return “absolutely clear” to him. Thus, in accompanying the officers to obtain the promised receipt for the exact amount of the cash, appellant was not making a “voluntary” choice but was acquiescing in the officers’ unlawful seizure of both his property and his person.

It follows that the trial court erred in failing to grant appellant’s motion to suppress. The search of appellant’s person was not conducted pursuant to his lawful formal arrest. Appellant’s formal arrest was unlawful because it was the product of the prior unauthorized seizure of his property and his person without probable cause. See generally Bowers v. State, 151 Ga. App. 46 (258 SE2d 623) (1979), aff'd 245 Ga. 367 (265 SE2d 57) (1980); Hill v. State, 140 Ga. App. 121, 122 (1) (230 SE2d 336) (1976); Kelly v. State, 129 Ga. App. 131, 133 (2) (198 SE2d 910) (1973). “If the exclusionary rule invoked here for suppression of evidence is to act as a deterrent to illegal law enforcement practices ([cit.]), it must be applied to the factual predicate of the instant case or the converse rule will emerge. That is, if illegal detention for an extended period of time, without prior probable cause, is not sufficient to exclude evidence obtained thereby, then police officers have been judicially licensed to illegally detain suspects, without probable cause, for extended periods of time, until the will of the suspect succumbs to the coercive effect of illegal police action. This court can not countenance illegal acts even though they achieve desired civic solutions.” Radowick v. State, 145 Ga. App. 231, 242 (4) (244 SE2d 346) (1978).

Decided June 2, 1989.

Joseph A. Maccione, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

Our holding is necessarily limited to the cocaine that was discovered on appellant’s person after his formal arrest. At the outset of the hearing on the motion to suppress, appellant stipulated that he was not contesting the admissibility of the cocaine which was found on the floor near his chair.

Judgment reversed.

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


author: Pope, Judge.

text:
    A89A0613.
    RILEY v. THE STATE.
    (383 SE2d 172)
   Pope, Judge.

Appellant Curtis Riley and co-defendant David Siler were tried jointly and convicted by a jury of the offense of trafficking in cocaine. Riley appeals, enumerating as error the denial of his motion for new trial.

1. Appellant challenges the sufficiency of the evidence, contending that the State failed to show that he was in “actual possession” of cocaine as was then required by OCGA § 16-13-31 (a). See Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988). We disagree. “The ‘actual possession’ required by OCGA § 16-13-31 to authorize a conviction for trafficking refers not merely to physical custody but refers to actual active participation in the possession of such substances so as to be a party to the crime of trafficking.” Barrett v. State, 183 Ga. App. 729, 736 (2) (360 SE2d 400) (1987). See also Cochran v. State, 190 Ga. App. 884 (380 SE2d 319) (1989). Here the evidence, albeit largely circumstantial, was sufficient to find appellant was in joint actual possession of the contraband with co-defendant Siler. See Ramirez v. State, 190 Ga. App. 889 (380 SE2d 323) (1989). After careful review of the transcript, we find the evidence was sufficient to enable a rational trier of fact to find appellant guilty of the offense charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Blasengame v. State, 187 Ga. App. 501 (3) (370 SE2d 797) (1988).

2. Appellant did not raise as error the trial court’s charge on the element of possession. However, a review of the record reveals that after defining actual and constructive possession, the trial court instructed the jury that it would be authorized to convict the defendant if it found “beyond a reasonable doubt that the defendant knowingly had actual or constructive possession either alone or jointly with others.” As stated in Division 1, supra, at the time of the alleged offense in the case at bar, OCGA § 16-13-31 (a) (1) required “actual” possession. Consequently, the appellate courts of this state have held that a charge such as the one given here constitutes reversible error because there is a substantial likelihood that the instruction could have been interpreted by the jury as authorizing a conviction for trafficking in cocaine on a finding of mere constructive possession. See Lockwood, supra; Ramirez, supra; Christopher v. State, supra; Coleman v. State, 189 Ga. App. 366 (7) (375 SE2d 663) (1988); Deych v. State, 188 Ga. App. 901 (2) (374 SE2d 753) (1988). Inasmuch as the instruction was substantially in error and harmful as a matter of law, defendant’s conviction for the offense of trafficking in cocaine must be reversed. OCGA § 5-5-24 (c); Price v. State, 179 Ga. App. 598, 602 (347 SE2d 608) (1986); Carswell v. State, 179 Ga. App. 56, 60 (345 SE2d 66) (1986).

Judgment reversed.

Banke, P. J., and Sognier, J., concur.

Decided June 2, 1989.

Adams & Adams, Cynthia T. Adams, for appellant.

Willis B. Sparks III, District Attorney, Kimberly S. Shumate, Assistant District Attorney, for appellee.

       The legislature has since amended that section by deleting the word “actual” preceding the word possession. However “that amendment, effective March 28, 1988, is an ex post facto law insofar as our consideration of this appeal is concerned.” Christopher v. State, 190 Ga. App. 393, 394 (379 SE2d 205) (1989).


author: Banke, Presiding Judge.

text:
    A89A0120.
    DALLAS BUILDING MATERIAL, INC. v. ROSE et al.
    (383 SE2d 151)
   Banke, Presiding Judge.

The appellant, Dallas Building Material, Inc., regularly furnished building materials to Ed Jordan, a general contractor, for use in constructing homes. During the summer of 1985, Jordan experienced financial difficulties while engaged in the construction of homes for appellee Randall J. Tumlin and appellees Holly and James Kenneth Rose. As a result of these difficulties, Jordan was unable to complete either project, with the result that the appellees quit paying him and began paying his subcontractors directly. In each case, the total amount paid by the owner or owners to Jordan and his subcontractors exceeded the contract price for which Jordan had agreed to do the work.

In keeping track of Jordan’s indebtedness for his purchases of building materials, the appellant maintained separate ledgers for his various projects. When it became apparent in late 1985 that Jordan was in financial distress, the appellant filed materialman’s liens against the appellees’ properties to secure payment of Jordan’s indebtedness for the materials he had purchased for their homes. The appellant subsequently filed separate lawsuits against the appellees seeking to foreclose these liens, also seeking, in each case, a personal judgment against Jordan. The trial court consolidated the two actions and ultimately awarded summary judgment to the appellees based on the following findings and conclusions: “Affidavits of Jordan and the individuals indicate that they paid all necessary monies for materials used on their homes. Jordan’s affidavit stating that the monies were received and forwarded to the [appellant supplier] by him allows for dissolution of the lien[s] pursuant to OCGA § 44-14-361.”

In this appeal, the appellant contends that, contrary to the trial court’s findings, the evidence of record did not establish without dispute that Jordan had paid for all the materials he had purchased for use in building the appellees’ homes. The appellees, on the other hand, maintain that even if Jordan did not make sufficient payments to the appellant to pay for all of the materials he had purchased for their homes, the grant of summary judgment was nevertheless authorized on the basis of affidavits establishing that the combined amount of the payments they had made to Jordan and his subcontractors exceeded, in each case, the contract price for which Jordan had agreed to build their homes. Held:

1. “Where a contractor abandons his contract, ‘the cost of completing the work is to be deducted from the contract price in order to ascertain the amount up to which the subcontractors may claim liens; and if such deductions, together with payments previously made to the contractor, equal or exceed the entire contract price, then of course the subcontractors and materialmen have no lien, since there is nothing due under the contract. . . .’ [Cits.]” E. Smith Heating &c. v. Biggers, 139 Ga. App. 216 (1) (228 SE2d 203) (1976). See OCGA § 44-14-361.1 (e). However, “[t]o this statement of the law must be added a proviso that the owner is required to show that the sums paid to the contractor were properly appropriated to materialmen and laborers or that the contractor’s statutory affidavit concerning such indebtedness had been obtained. (Cits.)” Jones Mercantile Co. v. Lyn-Har, Inc., 245 Ga. 812, 813 (267 SE2d 251) (1980). “According to. Jones Mercantile, it does not matter what the owner paid the contractor if he cannot prove what the contractor did with it. ...” Bishop v. Forsyth Paving Contractors, 181 Ga. App. 345, 346 (352 SE2d 198) (1986). Accord Adams v. W. P. Stephens Lumber Co., 158 Ga. App. 761 (282 SE2d 217) (1981).

Even assuming that the total amount the appellees paid to Jordan and his subcontractors exceeded the contract price for which Jor- 1 dan had agreed to build their homes, the affidavits submitted by the appellees do not establish that the funds they paid to Jordan were “properly appropriated” by him to pay for the material and labor which went into their homes. In his affidavit, appellee Rose merely averred that he “was informed that all sums advanced by him to J. E. Jordan were in fact applied to the construction project contemplated in his contract with J. E. Jordan.” Inasmuch as this averment demon- I strates on its face that it is predicated on hearsay rather than per- E sonal knowledge, it has no evidentiary value. See generally OCGA § 9- | 11-56 (e). The only other affidavit bearing on the issue is that of Jordan, who averred that “all of the sums received by him on either the Rose or the Tumlin jobs were used solely in connection with accounts for each of the separate projects” and that “[n]o funds were commingled or used on other jobs.” We do not consider the averment that the money was used “solely in connection with accounts for each of the separate projects” equivalent to a statement that all of the funds were paid to the materialmen and laborers involved in the two projects; and the statement that “no funds were commingled or used on other jobs” conflicts with Jordan’s deposition testimony that he deposited the payments he received on his various projects into a single bank H account and that the funds drawn from that account on a given occasion “may not have come from one individual.” See Division 2, infra. Consequently, we agree with the appellant that the affidavits were insufficient to establish their entitlement to summary judgment under the Jones Mercantile doctrine.

2. The appellees contend that the appellant forfeited its lien rights against their property by the manner in which it allocated at least two payments, one in the amount of $30,000 and the other in the amount of $20,000, which Jordan made on the accounts during July and August of 1985, immediately after having received identical payments from or on behalf of the appellees. While it is apparent without dispute from the ledger cards maintained by the appellant that some of this money was applied to the account indebtedness owing on the Rose project, it does not appear that any of the funds were applied to the indebtedness owing on the Tumlin project. The remaining funds were instead applied to other account indebtedness which Jordan owed the appellant for materials supplied to older projects which were no longer lienable.

“It has long been the law that ‘(w)hen a materialman is furnishing at the same time material to one contractor for the improvement of property belonging to different persons, and has full knowledge of the separate contracts, and money is paid to the materialman by the contractor from time to time on account of the material so furnished, it is incumbent upon the materialman to keep separate accounts and to find out from the contractor on what contract the money is paid, and to what account it should be applied. If he does not do so, but applies the money as a credit on a general account against the contractor, he thereby waives his right to a lien on the owner’s property and must look alone to the contractor.’ Williams v. Willingham-Tift Lumber Co., 5 Ga. App. 533, 535 (63 SE 584) [1908] [Emphasis supplied.] This rule applies when the contractor has paid the materialman, with money received from the owner, an amount sufficient to pay in full the materialman for his materials installed in the owner’s building. [Cit.]” Apex Supply Co. v. Commercial Union Ins. Co, 143 Ga. App. 131, 132 (237 SE2d 649) (1977).

The appellant’s former controller testified that when Jordan would bring in a payment she would handle it as follows: “[H]e would ask, or I would tell him how I was going to apply it by looking at an aging report that we had. Like, if I had [an account] that’s over 30 days, I would apply it to it first, you see, and say, is this okay, or whatever.” She indicated that Jordan never voiced any objection to this procedure nor indicated that he wished for the payments to be allocated in a different manner. While Jordan did not deny that he had never voiced any objection to the manner in which his payments were allocated, he did deny that he had ever been invited to express his preferences in this regard, testifying as follows: “They never asked me what job to put it on. They would break it down themselves mostly. They would put it on like they wanted.”

Decided May 23, 1989

Rehearing denied June 5, 1989.

George Pennebaker, for appellant.

James B. Talley, N. William Pettys, Jr., Joseph H. Fowler, for appellees.

“[T]he lien laws, being in derogation of the common law, are strictly construed against the lien claimant and in favor of the landowner.” Ben Hill &c. Concrete Co. v. Prather, 160 Ga. App. 149, 150 (1) (286 SE2d 481) (1981). Being cognizant that a landowner generally has no control over the manner in which a supplier allocates payments received from a building contractor, we hold that the supplier does not discharge its duty, under the Apex Supply case, “to find out from the contractor on what contract the money is paid, and to what account it should be applied” merely by informing the contractor how the money will be applied in the absence of direction to the contrary. Rather, the supplier must make a reasonable effort to ascertain the source from which the contractor received the funds and must apply the funds to that account. Otherwise, the supplier would, in effect, be empowered to use its existing lien rights to collect for materials supplied to properties on which its lien rights had long since expired.

Based on the foregoing, we hold that to the extent the appellant received payments from Jordan which were attributable to monies which had been paid to him on either the Rose project or the Tumlin project, the amount of the lienable indebtedness outstanding against the property in question was reduced, irrespective of how the appellant may have applied these payments among Jordan’s various accounts. However, the record before us does not disclose to what extent Jordan’s payments to the appellant were in fact attributable to funds he had received from the appellees. Consequently, it cannot be determined to what extent the lienable indebtedness outstanding against the appellees’ properties has been extinguished, and we must conclude that the trial court erred in granting the appellees’ motion for summary judgment.

3. The appellant’s final enumeration of error is rendered moot by the foregoing.

Judgment reversed.

Sognier and Pope, JJ., concur.


text:
    A89A0788.
    BALDWIN v. HOSPITAL AUTHORITY OF FULTON COUNTY et al.
    (383 SE2d 154)
   Banke, Presiding Judge.

The appellant, by next friends, filed this wrongful death action against the Hospital Authority of Fulton County d/b/a Northside Hospital, the Hospital Authority of Gwinnett County d/b/a Joan Glancy Memorial Hospital, and John R. Nisbet, M. D., seeking to recover damages for their alleged negligence in failing to foresee and prevent the fatal shooting of his (the appellant’s) mother by his father. The case is before us on appeal from the grant of the defendantappellees’ motions for summary judgment. Held-.

1. In certain companion litigation against these same appelleedefendants arising from the same shooting incident and characterized by the same procedural history as the present case, we held that the defendants were entitled to summary judgment due to a procedural error on the part of the plaintiffs in attempting to pursue their claims as renewal actions pursuant to OCGA §§ 9-2-61 (a) and 9-11-41 (d). See Gober v. Nisbet, 186 Ga. App. 264 (367 SE2d 68) (1988); Gober v. Hosp. Auth. of Gwinnett County, 191 Ga. App. 498 (_ SE2d _) (1989). For the reasons stated in the foregoing decisions, we hold that the trial court also acted properly in granting summary judgment to the appellee-defendants in the present action.

2. The trial court additionally ruled in the present case, as it did in at least one of the previous cases, that the defendants were entitled to summary judgment on the merits. Taking into consideration the considerable investment of time and resources which has quite evidently been made in this litigation both by the litigants and by the two trial courts which have been involved in it, and wishing to avoid the impression that we have foreclosed consideration of an otherwise meritorious claim or claims based purely on the commission of a technical error by appellant’s counsel, we deem it appropriate also to address this second aspect of the lower court’s judgment in this case.

The appellant’s father, Mark Baldwin, shot and killed the appellant’s mother at a restaurant where the latter worked as a waitress. (In the process he also killed a bystander who happened to be present in the restaurant as a customer, and it was that killing which gave rise to the litigation in Gober v. Nisbet, supra, and Gober v. Hosp. Auth. of Gwinnett County, supra.) The day prior to the shooting, Baldwin had been brought to Shallowford Hospital for medical treatment following an attempted suicide by drug overdose — his second suicide attempt in five months. Baldwin was examined at Shallowford, which is a private hospital, and then transferred by ambulance to appellee Joan Glancy Hospital, which is a public hospital. Accompanying him in the ambulance was an “Emergency Admission — Physician’s Certificate and Report of Peace Officer” (also known as a “Form 1013”), which had been executed by the attending physician at Shallowford. This certificate contained the following printed language: “In my opinion [Mark Baldwin] appears to be a mentally ill person requiring involuntary treatment in that he appears to be mentally ill AND (a) appears to present a substantial risk of imminent harm to himself or others as manifested by either recent overt acts or recent expressed threats of violence which present a probability of physical injury to himself or to other persons, or (b) appears to be so unable to care for his own physical health and safety as to create an imminently life-endangering crisis. My opinion is based on the following observations:” Appearing immediately after this language was a blank space containing the following handwritten notation: “2d suicide attemptf.] [S]tate[s] that he must kill himself so that people will not hurt him.” (Emphasis from original.)

The “Form 1013” was directed “To Emergency Receiving Facility known as GMHI and to the Peace Officer.” It specified that “[u]pon receipt . . . the peace officer shall make diligent efforts to take the above-named person into custody as soon as possible [and shall thereafter] transport the above-named person to the emergency receiving facility serving the county where such person was found.” See generally OCGA § 37-3-41. However, it does not appear that the certificate was ever presented to a peace officer or that Baldwin was ever taken to an emergency receiving facility. One possible explanation for this is that the attending physician also executed the following handwritten qualification in conjunction with the form: “The 1013 enclosed is to be executed after medical clearance and if no private mental health facilities are found.” (Emphasis from original.)

Baldwin was admitted to Joan Glancy Hospital, which has no psychiatric unit, and while there received medical treatment for his drug overdose under the care and direction of appellee Dr. John R. Nisbet. He was discharged the following day and was immediately transported by his mother and sister to appellee Northside Hospital for a mental evaluation. Baldwin had been previously hospitalized at Northside for psychiatric treatment following his first suicide attempt some five months earlier, and his sister was under the impression that arrangements had been made by Dr. Nisbet for Baldwin to receive such treatment there on this occasion. However, Northside refused to admit him, apparently because he lacked the financial resources to pay for such treatment and was not a resident of the hospital’s indigent treatment service area. After leaving Northside, Baldwin’s mother and sister sought to have him admitted to another hospital in the vicinity but again were unsuccessful. They then returned home with him with the intention of taking him to a hospital in Gainesville. Apparently, however, they departed for Gainesville in a separate car, expecting him to follow. At this time, Baldwin obtained a loaded pistol and proceeded to his wife’s place of employment, where he committed the fatal shootings.

The appellant seeks to recover from the appellee-defendants pursuant to the theory of liability announced in Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (1982). In that case, the Georgia Supreme Court affirmed the holding of this court in Bradley Center v. Wessner, 161 Ga. App. 576, 581 (287 SE2d 716) (1982), that “where the course of treatment of a mental patient involves an exercise of ‘control’ over him by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship and falls upon the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient.”

The patient in the Bradley Center case had shot and killed his wife and her lover upon being released from a private mental hospital on an unrestricted weekend pass. Prior to such release, the patient had made statements to the hospital’s staff revealing his intention to cause bodily harm to his wife if afforded the opportunity. Although he had been admitted to the hospital on a voluntary basis, he had, by the terms of the hospital’s voluntary admission program, agreed to certain restrictions on his activity and mobility; and the hospital was authorized pursuant to these restrictions to detain him for 48 hours in the event he sought discharge against medical advice. The Supreme Court held that under these circumstances the hospital could be held liable for the wife’s death under the theory set forth in § 315 of the Restatement, Torts, 2d, which recognizes the following exception to the general rule that there is no duty to control the conduct of third persons to prevent them from causing physical harm to others: “ ‘One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.’ ” Id. 250 Ga. at 201-2.

We agree with the trial court that the Bradley Center theory of liability is not applicable under the circumstances of the present case. Unlike the hospital in the Bradley Center case, none of the defendants in the present case ever had “control” of the patient in the sense that they could claim the legal authority to confine or restrain him against his will. (Even assuming arguendo that the qualified committal certificate would have authorized Baldwin’s involuntary confinement at an “emergency receiving facility,” there has been no suggestion that either Joan Glancy Hospital or Northside Hospital was such a facility.) Additionally, and more importantly, it is undisputed that during the entire period between his arrival at Shallowford Hospital and his departure from Northside the following day, Baldwin had not harmed or threatened to harm anyone other than himself, nor had he previously expressed to his mother or sister an intention to harm anyone else. Although the printed language in the Form 1013 specified that Baldwin presented a substantial risk of imminent harm “to himself or others,” it is apparent from the handwritten language that what prompted the execution of the form was Baldwin’s threat to commit suicide. Thus, in contrast to the Bradley Center case, there is no basis upon which any of the defendants in the present case can reasonably be charged with the breach of a duty to foresee and prevent an injury to third persons. Under the circumstances, the affidavit submitted by the appellant’s expert to the effect that the appellees were guilty of professional malpractice in their handling and treatment of Baldwin establishes no basis for a recovery against them by anyone other than Baldwin himself. Cf. Clanton v. Von Haam, 177 Ga. App. 694 (340 SE2d 627) (1986). We accordingly conclude that the trial court did not err in granting summary judgment to the appellees with respect to the merits of the appellant’s claim. Cf. Roberts v. Grigsby, 177 Ga. App. 377 (339 SE2d 633) (1985).

Decided May 23, 1989

Rehearing denied June 5, 1989.

Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., Mary L. Keener, Jeri L. Kagel, for appellant.

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Hart & Sullivan, Terrance C. Sullivan, Timothy H. Bendin, Blasingame, Burch, Garrard & Bryant, James B. Matthews III, Gary B. Blasingame, for appellees.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0842.
    BANKS COUNTY SCHOOL DISTRICT v. BLACKWELL.
    (383 SE2d 159)
   Banke, Presiding Judge.

Ruby Mae Blackwell filed suit against Irma Griffin Payne and the Banks County School District to recover for personal injuries she sustained in an accident involving a school bus being driven by Ms. Payne. In its answer, the school district asserted that the plaintiff had “failed to give . . . timely notice of the claims asserted in the complaint prior to filing said complaint.” The school district subsequently filed a motion to dismiss the action on the basis of this defense, arguing that, pursuant to OCGA § 36-11-1, the plaintiff was required to have submitted written notice of her claim within 12 months after the accident. The trial court denied this motion during the trial of the case, and the jury subsequently returned a verdict in favor of the plaintiff against both defendants. The school district appeals. Held:

Decided May 24, 1989

Rehearing denied June 5, 1989

Husby, Myers & Stroberg, W. Allan Myers, for appellant.

Robert J. Reed, Deal & Jarrard, J. Nathan Deal, Mary R. Carden, for appellee.

1. OCGA § 36-11-1 provides, in pertinent part, that “[a]ll claims against counties must be presented within 12 months after they accrue or become payable or the same are barred. . . .” The object of this Code section “ ‘is to afford the county an opportunity to investigate the claim and ascertain the evidence and to avoid the incurrence of unnecessary litigation. [Cits.]’ ” Sikes v. Candler County, 247 Ga. 115, 119 (274 SE2d 464) (1981).

It is apparent without dispute from the record in this case that the plaintiff failed to give the school district written notice of her claim within 12 months after the accrual of her cause of action. The trial court evidently determined that this failure did not constitute a bar to the action because the claim was against a county school district rather than a county.

A school district is a separate body corporate with the capacity to sue and be sued. Foster v. Cobb County Bd. of Education, 133 Ga. App. 768, 769 (213 SE2d 38) (1975). Pursuant to OCGA § 20-2-50, the governance of a county school district is “confined to the control and management of a county board of education” rather than to the county commissioner or commissioners. However, it has been held that “[w]hen the board of education acts upon matters lawfully within its jurisdiction, it is the county acting through its corporate authority. . . .” Duffee v. Jones, 208 Ga. 639, 645 (7) (68 SE2d 699) (1952). (Emphasis supplied.) Clearly, the administration and management of a county’s schools is an integral function of the governance of the county, and claims against a county school district affect the taxpayers of the county no less than claims arising from other governmental functions performed by the county. For these reasons, we conclude that a claim against a county school district constitutes a claim against the county within the contemplation of OCGA § 36-11-1. Accord Murphey v. Educational Bd. of Burke County, 71 Ga. 856 (5) (1883). We accordingly hold that the trial court erred in denying the school district’s motion to dismiss. The judgment against the remaining defendant is not affected by this decision.

2. The remaining enumerations of error are rendered moot by the foregoing.

Judgment reversed in part.

Sognier and Pope, JJ., concur.


text:
    A89A0236.
    In the Interest of M. J. F.
    (383 SE2d 173)
   Pope, Judge.

M. J. F. was adjudicated delinquent based on the offenses of speeding, crossing the centerline and two counts of vehicular homicide. He appeals from the denial of his motion for new trial.

1. Appellant challenges the sufficiency of the evidence as to each offense. Contrary to appellant’s assertion the sufficiency of the evidence is not reviewed in this court under the “any evidence” standard. “Where a juvenile is charged with an offense which for an adult would be a crime, the standard of proof in the lower court is ‘beyond a reasonable doubt.’ OCGA § 15-11-33 (c); T. K. v. State, 126 Ga. App. 269, 276 (3) (190 SE2d 588) (1972). On appeal we thus apply the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), which is whether a rational trier of fact could reasonably have found from the evidence presented proof that the juvenile committed the offense beyond a reasonable doubt. In the Interest of J. P., 160 Ga. App. 896, 897 (288 SE2d 607) (1982). ... On appeal the Court is bound to construe the evidence with every inference and presumption in favor of upholding the findings of the trier of fact, here the trial court. In re J. P., 169 Ga. App. 744, 745 (315 SE2d 259) (1984). [Although the evidence here was not without conflict t]he issues of the credibility of the witnesses and the resolution of conflicts in the evidence fall within the province of the trial court. In the Interest of F. T., 165 Ga. App. 4 (299 SE2d 112) (1983). Application of these principles leads to the conclusion that the evidence was sufficient. See In re V. T., 168 Ga. App. 472, 473 (309 SE2d 629) (1983).” In the Interest of C. D. L., 184 Ga. App. 412 (361 SE2d 527) (1987).

2. We have examined appellant’s enumeration concerning the testimony of the investigating officer on “induced damages” and find it to be without merit.

3. Defendant also contends that the testimony of the investigating officer that the sheriff’s office notified him by telephone of the death of the passenger in the car was inadmissible hearsay. However, the record shows that the officer was describing his investigation of the accident, specifically his attempts to obtain blood samples, which he explained was standard procedure in an accident involving fatalities. Under the circumstances, we find no error in the admission of the testimony. See OCGA § 24-3-2; Ellis v. State, 181 Ga. App. 630 (3) (353 SE2d 822) (1987); Warren v. State, 179 Ga. App. 890 (348 SE2d 88) (1986) (Pope, J., concurring specially). Moreover, and contrary to appellant’s assertions, this was not the only evidence presented on the death of the passenger, inasmuch as one of appellant’s witnesses testified without objection that two people were killed in the accident involving appellant.

4. Appellant also argues the juvenile court judge erred in not disclosing that he had read a copy of a poem published in a local newspaper and a similar piece of correspondence composed by the victims’ family on their loss. In support of this contention defendant argues that “reading such correspondence could have at least subconsciously created sympathy for the family [thereby affecting] consideration of the trial on its merits.” However, appellant has presented no evidence which indicates that the poem or other “correspondence” (which is not contained in the record) resulted in prejudice or bias which permeated the fact-finding process or otherwise affected the ruling of the juvenile court. Likewise, our independent examination of the transcript discloses no evidence of bias or prejudice stemming from the reading of the poem or any other source. “A careful examination of the transcript shows that the court considered only the facts which were presented in evidence in the instant case.” In the Interest of C. C. C., 188 Ga. App. 849, 850 (1) (374 SE2d 754) (1988). See also Carter v. State, 246 Ga. 328 (271 SE2d 475) (1980).

5. Appellant next contends that the trial court erred in finding him “guilty” of all four offenses because the lesser included offenses of speeding and crossing the centerline merged into the vehicular homicide convictions. See Rank v. State, 179 Ga. App. 28 (2) (345 SE2d 75) (1986). Although we agree that such would be the case if appellant, as an adult, had been found “guilty” and sentenced for all four offenses, under the circumstances here we find no merit to this argument. In juvenile proceedings “[t]he district attorney proceeds by a ‘petition’ alleging ‘delinquency based on conduct which is designated a crime or public offense under the laws, . . .’ OCGA §§ 15-71-25; 15-11-39. The court adjudicates whether the child committed ‘the delinquent act,’ not a ‘crime.’ OCGA §§ 15-11-39 (b); 15-11-33. ‘Prosecution’ is prohibited unless the case has been transferred to the appropriate court from the juvenile court. OCGA § 15-11-39 (c). The juvenile court ‘disposes’ of the case after determining whether treatment, rehabilitation, or supervision is needed; it does not ‘sentence’ the child. OCGA §§ 15-11-33; 15-11-35. And most telling of all, ‘(a)n order of disposition or other adjudication in a proceeding under this chapter is not a conviction of a crime. . . .’ OCGA § 15-11-38 (a).” Smith v. State, 173 Ga. App. 728, 732 (327 SE2d 839) (1985) (Beasley, J., concurring specially). Consequently, defendant’s merger argument is without merit.

6. Lastly, we find no merit to appellant’s argument that the trial court impermissibly restricted his right to conduct a thorough and sifting cross-examination of the State’s witness.

Decided June 5, 1989.

Bischoff & White, James E. Bischoff, for appellant.

W. Fletcher Sams, District Attorney, W. Hawley Stevens, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: Birdsong, Judge.

text:
    A89A0347.
    WAITS v. MAKOWSKI.
    (383 SE2d 175)
   Birdsong, Judge.

This is an appeal from the trial court’s order granting appellee’s motion for summary judgment.

Appellant brought suit for injuries sustained in a multiple car collision in September of 1986.

Appellee exited 1-285 at Memorial Drive at a speed faster than normal. Appellee’s vehicle did not appear to reduce speed as he approached a line of stopped vehicles. He hit the back of a stopped car which in turn hit the appellant’s car knocking it into the car in front of it. Appellee’s car then moved backwards suddenly and traveling in reverse struck two other cars. Mr. Martin, a former special forces soldier with some medical training, witnessed the collisions and approached appellee’s car. He observed that the appellee was apparently undergoing some type of seizure. The symptoms exhibited by appellee were later confirmed by a neurology specialist as being consistent with the symptoms of a person who is experiencing a seizure.

Appellee asserts the defense of accident. He claims that he had not eaten any food for approximately 20 hours preceding the collision, and that on the morning of the accident, he had only some coffee and a Coke to drink. Appellee remembers entering the exit ramp at a normal rate of speed, suddenly becoming dizzy and becoming unconscious about a second later thereby losing control of his vehicle. Appellee claims he never suffered from seizures before the collision nor had he experienced episodes of dizziness, light-headedness, or unconsciousness. Following the accident, appellee was given emergency medical treatment. Subsequent medical tests and examinations were administered by two doctors; however, apparently “[n]o neurological disorders were found, and no medications or follow-up treatment were required.”

In March of 1987, appellee was examined by a neurology specialist following “a generalized atonic-colonic convulsion.” It was this doctor’s opinion that appellee “suffers from cryptogenic seizure disorder”; and this type of seizure occurs suddenly and without any warning and may result in an immediate loss of consciousness. Held:

Appellant’s sole enumeration of error is that the trial court erred in granting the appellee summary judgment.

1. “ ‘(O)n summary judgment, the movant has the burden of showing “there is no genuine issue as to any material fact and that (he) is entitled to a judgment as a matter of law.” (Cit.) When, as in the instant case, the movant is the defendant, he has the additional burden of piercing the plaintiff’s pleadings and affirmatively negating one or more essential elements of the complaint.’ [Cit.] In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” Moore v. Goldome Credit Corp., 187 Ga. App. 594 (1), 595-596 (370 SE2d 843).

Freeman v. Martin, 116 Ga. App. 237, 239 (156 SE2d 511), cited by the trial court, pertinently provides “that there is no liability for negligence or for gross negligence on the part of an operator of a motor vehicle who, while driving, is suddenly stricken by a fainting spell, or loses consciousness from some unforeseen reason. Such loss of consciousness is a complete defense to an action based upon negligence, and if it appears from the plaintiff’s evidence he fails to demonstrate a right to recover, making the nonsuit a proper disposition of the matter.” (Emphasis supplied.) We adhere to this sound principle.

The record, however, contains the affidavit of Mr. Tate who also witnessed the collision. Mr. Tate recounts, “[a]s I started up the ramp on the right side, a car came up fast behind me and I had to go off the ramp and into a ditch ... to avoid being hit. As the driver [the appellee] went by me, I noticed he was drinking from a cup or can that he was holding. After that, he hit several cars. ... I quickly went over . . . and started to give help to him. His safety belt was not buckled. He started talking to me and said that unless I was a doctor or medic, not to touch him further. ... At this time, someone else came up and he had medical training. . . .” (Emphasis supplied.)

It may be reasonably inferred from this evidence that appellee was not having a seizure nor was he unconscious at the time of the collision, or in the alternative that appellee did not suffer the seizure until after the collision. The fact that appellee’s car suddenly went in reverse following the initial impact could support any one of several reasonable inferences; for example, that the appellee voluntarily put his car in reverse to disengage it from the struck vehicle and thereafter lost control of it, or that appellee either while conscious or unconscious was thrown into the gear shift lever involuntarily putting the car in reverse. “ ‘As a general proposition, issues of negligence, contributory negligence and lack of ordinary care for one’s own safety are not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial before a jury. (Cits.) However, where the facts conclusively show by plain, palpable and undisputed evidence that the defendant was not at fault . . . such case properly may be resolved as a matter of law through the vehicle of summary judgment.’ ” Soto v. Roswell Townhomes, 183 Ga. App. 286, 288 (358 SE2d 670); accord Papp Clinic v. Cash, 186 Ga. App. 444, 445 (367 SE2d 271). We find that the posture of the evidence, considering the reasonable inferences that may be drawn therefrom, presents matters which should be resolved by the jury. Thompson v. Crownover, 259 Ga. 126 (5), (6) (377 SE2d 660) (1989).

2. We must next consider whether appellant contested appellee’s state of consciousness at the trial level. Examination of the trial record discloses that except for the affidavit of Mr. Tate, and appellant’s argument in a brief to the trial court that “Defendant [appellee] was lucid enough to tell Mr. Tate [after the collision] to not touch him ‘unless he was a medic.,’ ” appellant’s primary argument before the trial court was that appellee/defendant’s unconsciousness and seizure were the product of his own wilful conduct in failing to eat properly and in ingesting some sugar in beverages he drank. Appellant attempted to establish that this conduct would trigger a hypoglycemic episode of seizure or unconsciousness at the time of the collision. The record also discloses that the appellant does not expressly contest that the appellee was unconscious at the time of the collision in his Answer and Rebuttal to Defendant’s Statement of Undisputed Facts, which were submitted pursuant to Rule 6.5 of the Uniform Superior Court Rules.

Any matter admitted under the provision of OCGA § 9-11-36, Request for Admission, is conclusively established unless the court subsequently permits withdrawal or amendment of the admission. OCGA § 9-11-36 (b). However, this record does not reflect that any admissions occurred pursuant to this Code section. Facts not contested in response to a Statement of Undisputed Facts, submitted pursuant to Rule 6.5, do not per se constitute admissions within the meaning of OCGA § 9-11-36. Rule 6.5 of the Uniform Superior Court Rules was enacted primarily to facilitate the summary judgment decision-making process. “It was not designed to be used like a request for admissions” under OCGA § 9-11-36; SPS Indus. v. Atlantic Steel Co., 186 Ga. App. 94, 99 (3) (366 SE2d 410) (cited as physical precedent only; Court Rule 35 (b)), and it will not be so used.

We have further considered that line of authority holding a party “ ‘ “must stand or fall upon the position taken in the trial court.” ’” See generally Bell v. Sellers, 248 Ga. 424, 426 (1) (283 SE2d 877). While we adhere to this rule as a general principle of law, we are not prepared to say, based on the posture of the record, that appellant did not make, at least, a minimal assertion before the trial court contesting whether appellee was in fact stricken by a fainting spell or was otherwise unconscious at the time of the collision. Further, the issue of appellee’s negligence in causing the multiple car collision and the issue of his consciousness, “clearly [were] presented by allegations and proof.” Barry v. Cantrell, 150 Ga. App. 439, 443 (2) (258 SE2d 61). Thus, “[r]egardless of whether the specific point was argued before the trial judge the motion for summary judgment should not have been granted where there was evidence which would have sustained a basis for recovery by the plaintiffs.” Id. compare Barry with Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44 (3) (332 SE2d 304).

Decided June 5, 1989.

John H. Ramsaur, for appellant.

Rowe & McGarity, William P. Rowe III, for appellee.

Accordingly, we find it constituted reversible error to grant appellee’s motion for summary judgment in this particular instance. This holding should not, however, be construed as authority for the proposition that appellant’s evidence would, had it been offered at trial, necessarily be sufficient to withstand a motion by appellants for directed verdict. An evidentiary posture authorizing the grant of a directed verdict may not authorize the grant of summary judgment in a case, such as this, where “ ‘the party making the motion for summary judgment is not required to carry the burden on the trial of the case.’ ” Winn-Dixie &c. v. Ramey, 186 Ga. App. 257 (1) (366 SE2d 785).

Judgment reversed.

Deen, P. J., and Benham, J., concur.


text:
    A89A0464.
    In the Interest of J. B.
    (383 SE2d 184)
   Carley, Chief Judge.

At a juvenile court hearing which had been set solely to determine appellant’s status as a deprived child, his counsel sought to interject the issue of delinquency. The asserted delinquent act was appellant’s murder of his mother. The juvenile court refused to consider the issue of appellant’s delinquency or to conduct a transfer hearing to determine whether appellant should be tried for the murder as an adult in the superior court. It is from these rulings of the juvenile court that appellant brings this direct appeal.

Decided June 5, 1989.

Bailey & Bearden, J. Lane Bearden, for appellant.

Darrell E. Wilson, District Attorney, James F. Ledbetter, Assistant District Attorney, for appellee.

As noted, the juvenile court’s rulings on the issues of appellant’s delinquency and a transfer for his prosecution in the superior court were made in the context of a deprivation hearing. The record shows that no final written order as to appellant’s deprivation has ever been entered. It follows that the deprivation case is still pending in the juvenile court and that any rulings which have heretofore been made in that case are interlocutory. Appellant did not comply with the applicable provisions of OCGA § 5-6-34 (b) and, accordingly, this appeal must be dismissed for lack of jurisdiction.

If, as the record suggests, the issues raised by appellant in this appeal have been rendered moot as the result of his actual criminal prosecution for murder, the issue of whether the superior court has jurisdiction to try him as an adult should now be raised in the criminal prosecution in that court or in a habeas corpus proceeding. See generally Lane v. Jones, 244 Ga. 17 (257 SE2d 525) (1979); Longshore v. State, 239 Ga. 437 (238 SE2d 22) (1977); Hartley v. Clack, 239 Ga. 113 (236 SE2d 63) (1977); Williams v. State, 238 Ga. 298, 303 (2) (232 SE2d 535) (1977); Relyea v. State, 236 Ga. 299 (223 SE2d 638) (1976).

Appeal dismissed.

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


text:
    A89A0492.
    HERRING v. THE STATE.
    (383 SE2d 178)
   Carley, Chief Judge.

Appellant was tried before a jury on an indictment charging him with two counts of burglary, one count of robbery, and six counts of forgery. He was acquitted on one of the burglary counts and found guilty on the remaining counts. He appeals from the judgments of conviction and the sentences entered by the trial court on the jury’s verdicts of guilt.

1. One of the burglaries and the robbery were alleged to have been committed against one victim. The other burglary and the forgeries were alleged to have been committed against another victim. Appellant moved to sever the trial of the offenses as against one victim from the trial of the offenses as against the other victim. He enumerates the denial of his motion to sever as error.

The two alleged burglaries of the victims’ homes were sufficiently similar so that the evidence as to one would be relevant and admissible evidence as to the other. “ ‘[W]here . . . the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying [appellant’s] motion for severance.’ ” Johnson v. State, 257 Ga. 731, 733 (2c) (363 SE2d 540) (1988). Since appellant was acquitted on one of the burglary counts, it is clear that the jury was “ ‘able to distinguish the evidence and apply the law intelligently as to each offense.’ [Cit.]” Dingler v. State, 233 Ga. 462, 464 (211 SE2d 752) (1975). The trial court did not err in denying the motion to sever.

Decided June 5, 1989.

James C. Stripling, for appellant.

William G. Hamrick, Jr., District Attorney, Agnes McCabe, Assistant District Attorney, for appellee.

2. Over appellant’s best evidence objection, the trial court admitted into evidence a photocopy of one of the forged checks. This evidentiary ruling is enumerated as error.

“Pretermitting the question of admissibility, we find any error in admitting a copy of the check into evidence was harmless . . . [because appellant admitted signing and negotiating each of the checks] in question. . . . [T]he only issue was whether appellant received the [checks] lawfully ... , as appellant testified, or whether he took [them] . . . without authority. Thus, the check itself was of little or no significance in determining appellant’s guilt or innocence.” Radford v. State, 188 Ga. App. 204 (2) (372 SE2d 480) (1988).

3. Appellant enumerates the general grounds.

As to the burglary and robbery counts, the victim positively identified appellant as the man who had entered her home through a bedroom window, had stolen items from the house, and had forcibly taken jewelry from her. Appellant was arrested the following day while wearing clothing taken in the burglary. As to the forgery counts, a jury question existed with regard to appellant’s defenses of consent or justification. The resolution of any conflicts in the testimony and the assessment of the credibility of the witnesses were for the triors of fact. See Redd v. State, 154 Ga. App. 373 (268 SE2d 423) (1980). After a review of the record, we find that the evidence was sufficient to prove appellant’s guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgments affirmed.

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


text:
    A89A0577.
    WINGFIELD v. THE STATE.
    (383 SE2d 180)
   Pope, Judge.

Defendant Angela Wingfield was convicted of criminal trespass to the property where her former boyfriend resided with his mother and stepfather. The record shows that on a date prior to the evening in question she had gone to the residence to return certain property belonging to her former boyfriend and to retrieve certain property in his possession which belonged to her. She took a police officer with her. The former boyfriend’s parents instructed the officer to warn defendant that if she returned to their property they would prosecute her for criminal trespass. On May 13, 1988 defendant was charged with criminal trespass in response to a complaint from the defendant’s former boyfriend and his mother that they had seen defendant pull into their driveway in an automobile. Defendant appeals the denial of her motion for new trial, arguing that the evidence was insufficient to sustain a conviction.

“Notice is an essential element of the offense of criminal trespass, and must be proven by the State beyond a reasonable doubt at trial. See OCGA § 16-7-21 (b) (2) . . . . Inherent in the statute’s notice provision is a requirement that notice be reasonable under the circumstances, as well as sufficiently explicit to apprise the trespasser what property he is forbidden to enter.” Rayburn v. State, 250 Ga. 657 (2) (300 SE2d 499) (1983). We reject defendant’s argument that the warning she was given was insufficient to apprise her that she was forbidden to enter the driveway of the residence. The officer who accompanied defendant on her visit to exchange property testified: “I advised her that . . . they did not want her on the property, and if she came back, she would be arrested for criminal trespass.” Defendant testified that the officer informed her “[n]ot to come over there anymore, and I fully understood her.” Defendant admitted that the officer had told her “not to come back to [the address in question].” Having reviewed the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found the essential elements of trespass, including the requisite notice of warning, beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).

We also reject defendant’s argument that no evidence was presented that the driveway she was accused of entering was part of the property in question. At trial, the defendant’s former boyfriend referred several times to the driveway in question as “my driveway.”

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.

Decided June 5, 1989.

Kathleen J. Anderson, for appellant.

Ken Stula, Solicitor, Kristopher Shepherd, Assistant Solicitor, for appellee.


text:
    A89A0605.
    THORNTON v. THE STATE.
    (383 SE2d 181)
   Pope, Judge.

Defendant Melvin Houston Thornton appeals from his convictions for possession of tools for the commission of a crime, two counts of aggravated assault, carrying a pistol without a license and possession of a firearm by a convicted felon.

1. Defendant argues that certain portions of the trial court’s instructions to the jury violated the statutory prohibition against expression or intimation by a judge of his opinion as to what has or has not been proven or as to the guilt of the accused, pursuant to OCGA § 17-8-57. The record shows that during the course of deliberations the jury requested additional instruction on the issues of reasonable doubt and circumstantial evidence. In responding to the request for additional instruction, the trial judge attempted to distinguish circumstantial evidence from direct evidence and, by way of example, stated that the testimony of two eyewitnesses in the case was direct testimony. The judge stated: “[T]he officer testified and the witnesses testified that they saw [the aggravated assault] happen. That’s direct evidence if you believe what the witnesses say, but there may be other facts and circumstances surrounding it which are circumstantial evidence, and so thus I gave you the rule [concerning circumstantial evidence]. Carrying a pistol without a license. The officers and the witnesses testified to that as direct evidence as having seen him with a pistol and having taken it away from him . . . .” We reject defendant’s argument that these instructions were improper. The court did not comment upon the credibility of the testimony of the eyewitnesses but merely stated that the testimony, if it was believed by the jury, was direct evidence. “The charge as made by the trial judge in this regard was not a comment on what the evidence showed, but was merely part of his explanation of the rule [of law on which the jury had asked for further instruction].” Hunsucker v. State, 160 Ga. App. 846, 848 (287 SE2d 689) (1982). “There is a wide difference between saying that a particular thing has been proved and saying that there has been testimony on that thing.” Fair v. State, 171 Ga. 112, 120 (155 SE 329) (1930). We find no error in the court’s instruction to the jury-

Decided June 5, 1989.

Lawrence E. Diamond, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Nancy A. Grace, William L. Hawthorne III, Assistant District Attorneys, for appellee.

2. The direct testimony of the eyewitnesses was sufficient to establish defendant’s guilt beyond a reasonable doubt. Consequently, defendant’s argument that the judgment should be reversed on the general grounds is meritless.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0622.
    SHEPHARD v. THE STATE.
    (383 SE2d 182)
   Pope, Judge.

Defendant Renaldo Shephard appeals his conviction of possession of cocaine on the ground the circumstantial evidence presented at trial is insufficient to warrant his conviction. We affirm.

The record shows two officers wearing plain clothes and driving an unmarked car entered the apartment complex where defendant was arrested. They saw defendant and two other men in an area near one of the buildings. Defendant was standing apart from the other two in a gravel lot. When defendant saw the officers drive by he dropped something onto the ground. After they passed he picked the object up again and started to walk off. When he saw that the officers 1 were returning, he dropped the object in a low hedge of bushes beside fl the building and walked away. The two officers got out of their car 3 and one talked to the defendant while the other looked in the bushes fl where she retrieved a potato chip bag containing ten small packets of | a white powdery substance which later tested to be cocaine weighing | 2.2 grams. The officer testified no other trash was found near the | bushes. The officer who retrieved the potato chip bag was the passenger in the unmarked car and testified she never took her eyes off the defendant while she and her partner drove past the defendant, turned around, drove back and got out of the car to investigate. Defendant testified at trial and denied having possession of the potato chip bag or placing it in the bushes. |

Defendant correctly argues that mere presence at the place where | contraband is found is insufficient to warrant a conviction. However, 1 more than mere presence was shown in this case. “To warrant a con-1 viction on circumstantial evidence, the proved facts shall not only be 1 consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. “This does not mean that the [S]tate must exclude every possible hypothesis showing innocence, but any reasonable hypothesis showing innocence. [Cit.] The yardstick by which we determine what in a given case is a reasonable hypothesis, [cit.], is in the first instance a question for the jury. [Cit.] Thus, except where the guilty verdict is unsupportable as a matter of law, this court will not substitute its judgment as to what is a reasonable hypothesis for that of the jury or the trial court. [Cit.]” Robinson v. State, 168 Ga. App. 569, 571 (309 SE2d 845) (1983). “Whether every reasonable hypothesis except that of guilt of the defendant has been excluded is a question for the jury where the jury is properly instructed. [Cit.] The conflicting evidence in this case was presented to the jury and the jury resolved that conflict adversely to the appellant. There being support for that determination by the jury we will not disturb the jury’s verdict on that ground.” Barfield v. State, 160 Ga. App. 228, 231 (286 SE2d 516) (1981).

Decided June 5, 1989.

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Patricia G. Higginbotham, Assistant District Attorneys, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0984.
    MORGAN et al. v. MILLER.
    (383 SE2d 183)
   Banke, Presiding Judge.

This is a declaratory judgment action, filed by the defendants in a wrongful death action to determine to whom that cause of action properly belongs.

The decedent, Jessie Dan Miller, Jr., died on September 1, 1985, survived by his parents, Jessie Dan Miller, Sr., and Sherrill Miller, and by his minor son, Jessie Dan Miller III. In July of the following year, Jessie III was adopted by the senior Millers, who subsequently filed a wrongful death action against the appellants herein, Dr. Diskin G. Morgan, Diskin G. Morgan, M. D., P. C., and Dr. Akkaraju Sarma. Also named as a defendant in the wrongful death action was the Coffee County Hospital Authority, which is not a party to this appeal. All of these defendants joined in filing the present declaratory judgment action, seeking a judicial determination as to whether the senior Millers were the proper parties to bring the wrongful death action or whether the cause of action instead belonged to Jessie III. (The latter was named as a defendant in the declaratory judgment action along with the senior Millers, and a guardian ad litem was appointed to represent his interests in the litigation.) The complaint alleged, inter alia, that “[a] controversy exists among the parties to [the wrongful death action] as to which of the defendants herein has the cause of action for the wrongful death of [the decedent], and the parties hereto cannot proceed with the defense, prosecution, or settlement of said action] without substantial risk of being subjected to double liability and multiple actions.”

Decided June 5, 1989.

Terry A. Dillard, Bryant H. Bower, Jr., Bobby T. Jones, for appellants.

Earl M. McRae, Jr., for appellee.

After Mr. and Mrs. Miller and Jessie III had filed their respective answers, Dr. Morgan and his professional corporation moved for judgment on the pleadings, contending that Jessie III had lost his status as the decedent’s surviving son upon being adopted by the senior Millers, with the result that the latter were the proper parties to bring the wrongful death action. Not surprisingly, the senior Millers filed a brief in support of this position. The Coffee County Hospital Authority, on the other hand, filed a brief in opposition to the motion for judgment on the pleadings, asserting that Jessie III was the proper party to bring the wrongful death action; and Jessie III filed a brief agreeing with that position. The trial court ruled in favor of Jessie III; and Dr. Morgan, his professional corporation, and Dr. Sarma joined in filing the present appeal. Held:

Assuming arguendo that the appellants had standing to seek a declaratory judgment on the issue of who was the proper party to sue them in the wrongful death action, they clearly do not have standing to appeal the trial court’s ruling on that issue, inasmuch as their liability for the decedent’s death, if any, is not affected by it. “ ‘A party not aggrieved by the judgment of the trial court is without legal right to except thereto, since he has no just cause of complaint.’ (Cit.)” Cooper Motor Lines v. B. C. Truck Lines, 215 Ga. 195 (1) (109 SE2d 689) (1959). The appeal is accordingly dismissed. Accord Wallace v. Scott, 164 Ga. App. 129 (1) (296 SE2d 423) (1982).

Judgment dismissed.

Sognier and Pope, JJ., concur.


author: Carley, Chief Judge. Beasley, Judge,

text:
    A89A0194.
    LANDRUM v. COBB COUNTY CONCRETE PRODUCTS, INC. et al.
    (383 SE2d 144)
   Carley, Chief Judge.

Appellee-defendant J. E. Lovern (Lovern) subcontracted to provide and install the water and sewer lines for a building project. Appellee-defendant Cobb County Concrete Products, Inc. (CCCP) subcontracted with appellee Lovern for the sale, delivery and installation of an underground sewer tank. Superior Crane & Rigging Company (Superior) subcontracted with appellee CCCP to lift the sewer tank into position at the construction site. Appellant-plaintiff’s husband was the employee of Superior who was assigned the job of operating the crane. He died when the crane fell over at the construction site. As the result of her husband’s death, appellant received workers’ compensation benefits from Superior.

Appellant then brought this wrongful death action against appellees Lovern and CCCP. Appellees answered and raised, among their other defenses, the exclusivity of workers’ compensation as appellant’s remedy for the death of her husband. Based upon this defense, appellees subsequently moved for summary judgment. Appellant appeals from the trial court’s grant of summary judgment in favor of appellees.

1. “[A]n employee of a subcontractor engaged upon the subject matter of the contract who is injured on, in or about the premises on which the principal contractor has undertaken to execute the work, can [not] maintain an action in tort against the principal [or intermediate] contractor where the subcontractor is an independent contractor and where workers’ compensation benefits were paid by the subcontractor.” Wright Assoc. v. Rieder, 247 Ga. 496, 497 (1) (277 SE2d 41) (1981). Appellant’s deceased husband was employed by Superior. Superior was a subcontractor of appellee CCCP for the construction project. Although appellee CCCP was apparently the manufacturer of the sewer tank that caused the crane to tip over, it was also a subcontractor of appellee Lovern for the construction project. See generally Rickets v. Tri-State Systems, 177 Ga. App. 509 (1) (339 SE2d 732) (1986). Compare Modlin v. Swift Textiles, 180 Ga. App. 726 (350 SE2d 273) (1986). Appellant has alleged no cause of action against appellee CCCP in its capacity as the manufacturer of the sewer tank. There are no allegations that the sewer tank itself was a negligently or defectively manufactured product. The alleged negligence of appellee CCCP consists only of its representation to Superior that the weight of the sewer tank was less than it actually was. Since appellee CCCP had contracted with Superior to lift the sewer tank into position at the construction site, it is clear that this allegedly negligent representation was not made to Superior in appellee CCCP’s capacity as the manufacturer of the sewer tank, but solely in its capacity as appellee Lovern’s subcontractor for the installation of the sewer tank.

We are aware of no authority for the proposition that an allegedly negligent intermediate contractor may not avail himself of the immunity granted to statutory employer simply because he also incidentally occupies the capacity of a manufacturer. “ [N] otwithstanding its [manufacture] of the [sewer tank], appellee [CCCP] was, as to [appellee Lovern], a ‘contractor.’ ‘Contractor’ is defined as one ‘ “who contract^] to perform certain work, such as the furnishing of goods and service, for another. . . .” [Cit.]’ [Cit.] Since the contract with [Superior] was entered into in specific furtherance of [appellee CCCP’s] contractual obligation to [appellee Lovern] rather than [in] its [capacity as the manufacturer], appellee [CCCP] would be the ‘principal’ contractor as to those services. Appellee [CCCP] owed the primary obligation to [appellee Lovern] and the obligation, in turn, was owed to appellee [CCCP] by [Superior]. [Appellant’s deceased], an employee of [Superior], was [killed] while performing these obligations.” Rickets v. Tri-State Systems, supra at 510. Appellee Lovern was itself a subcontractor of the general contractor for the project. Appellant was paid workers’ compensation benefits by Superior. Under these circumstances, appellees CCCP and Lovern, as intermediate contractors, were the statutory employers of appellant’s deceased husband and, as such, they are not liable in tort for his death. See Wright Assoc. v. Rieder, supra. The trial court correctly granted summary judgment in favor of appellees.

2. Appellees’ motion for the imposition of damages for a frivolous appeal is denied.

Judgments affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope and Benham, JJ., concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

As shown by the complaints, Landrum’s suit against CCCP is a negligence action against it as manufacturer for inaccurately advising the decedent’s employer of the weight of the tank. It is alleged that the manufacturer knew the true weight was 5,000 pounds more. OCGA § 51-1-11 gives a cause of action for injury which follows when the property is “not. . . reasonably suited to the use intended” (subsection b (1)); the manufacturer has a “duty to warn of a danger arising from use of a product once that danger becomes known to the manufacturer” (subsection c).

Pleadings are to be “construed as to do substantial justice.” OCGA § 9-11-8 (f); Walton v. James & Dean, Inc., 177 Ga. App. 77, 78 (1) (338 SE2d 516) (1985). It is sufficient if the complaint gives “fair notice and states the elements of the claim plainly and suecinctly.” Ledford v. Meyer, 249 Ga. 407, 409 (2) (290 SE2d 908) (1982). See also Hardy v. Gordon, 146 Ga. App. 656, 657 (247 SE2d 166) (1978). It need not set forth a cause of action so long as it sets forth a claim for relief. Mathews v. Greiner, 130 Ga. App. 817, 822 (4) (204 SE2d 749) (1974).

Decided May 19, 1989

Rehearing denied June 6, 1989.

The Garland Firm, James M. Campbell, Charles G. Haldi, Jr., for appellant.

Long, Weinberg, Ansley & Wheeler, David A. Sapp, Drew, Eckl & Farnham, Jeffrey D. Bunch, Stevan A. Miller, Barry S. Mittenthal, for appellees.

Just because CCCP happens also to be a statutory employer under the particular facts does not eliminate its separate tort liability as a manufacturer. In this regard it presents no authority for the proposition that the statutory employer immunity applies to acts of negligence committed in its capacity as manufacturer.

The nature of the allegedly negligent act is one undertaken in its role as manufacturer of the tank and only incidentally, if at all, in its role as intermediate contractor.

I respectfully dissent with respect to affirmance of summary judgment for CCCP.


text:
    A89A0348.
    GREEN v. THE STATE.
    (383 SE2d 134)
   Carley, Chief Judge.

In Green v. State, 187 Ga. App. 373 (370 SE2d 348) (1988), appellant’s conviction for trafficking in cocaine was affirmed and the case was remanded to the trial court for a hearing with regard to allegations of the ineffectiveness of appellant’s trial counsel. The trial court conducted the hearing and ruled that a new trial on the ground of ineffective assistance of counsel was not warranted. Appellant appeals.

Appellant urges that the trial court erred in finding that his trial counsel had afforded him effective assistance. “ ‘We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.’ . . . [T]he effectiveness of counsel cannot be fairly measured by the results of a criminal trial or appeal, but upon the reasonable effectiveness of counsel at the time the services were rendered.” Pitts v. Glass, 231 Ga. 638, 639 (203 SE2d 515) (1974).

Under Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988), a portion of the trial court’s charge was erroneous. The failure to object to this erroneous charge is cited as an instance of the ineffectiveness of appellant’s trial counsel. At the time of appellant’s trial, however, Lockwood had not yet been decided. The Sixth Amendment affords appellant the right to representation by trial counsel who is reasonably effective, not representation by trial counsel who is prescient. The failure to object in several instances to allegedly improper argument by counsel for the State is also relied upon. It would appear, however, that the State’s argument was, in each instance, entirely proper. Moreover, even assuming that one or more of the cited instances would constitute improper argument, the failure of appellant’s trial counsel to object would not warrant the grant of a new trial. “[W]e do not . . . evaluate the effectiveness of counsel upon isolated trial errors. The Pitts v. Glass standard ([cit.]) requires us to look at the totality of the representation provided by counsel. [Cit.] In doing so, we have no difficulty in finding that [appellant] had the benefit of a competent, well-prepared and aggressive advocate for his defense and that [his] claim to the contrary is wholly without merit.” Dansby v. State, 165 Ga. App. 41, 43 (2) (c) (299 SE2d 579) (1983).

Judgment affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Pope, Sognier and Benham, JJ., concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

Under either the State Constitution or the Federal Constitution, appellant’s trial counsel was ineffective as a matter of law so that he must be granted a new trial. The reason is Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988).

The Supreme Court of Georgia, in that four-to-three decision, ruled on February 5, 1988 that instructing the jury that it could convict if it found that defendant had “actual or constructive possession” of cocaine was reversible error, even though the indictment properly charged only actual possession. Apparently, trial counsel in that case had objected to the charge, since the Supreme Court decided the question on its merits, although the opinion does not reflect whether that timely objection was made.

Green’s trial counsel, on the other hand, did not object to the charge, so this court refused to consider its merits due to the procedural deficiency. Green v. State, 187 Ga. App. 373, 375 (3) (370 SE2d 348) (1988). Had he done so, this court would have been compelled to award a new trial because of Lockwood.

Green was charged with, on November 25, 1986, knowingly being in actual possession of more than 400 grams of a mixture with an over 10 percent purity of cocaine. At that date, the statute in effect modified the word “possession” by the adjective “actual.” OCGA § 16-13-31 (a) (1) (A). Although the court in its instructions to the jury read the indictment and the statute, both of which contain only the words “actual possession,” the court described the distinction between actual and constructive possession and instructed: “The jury would be authorized to convict only if they should find beyond a reasonable doubt that the defendant knowingly had actual or constructive possession either alone or jointly with others.” That was fatal, unless reading the indictment and the statute made it sufficiently clear that the conclusion of guilt required a finding of actual possession. Lockwood does not seem to provide for such an allowance, even when the verdict is that defendant is guilty as charged.

Trial counsel’s ineffectiveness is not in failing to foresee the Lockwood decision but rather in failing to object to a charge which broadened the criminal statute to cover activity not prohibited by the legislature. Lockwood’s counsel noticed it but Green’s counsel missed it. The fact that the General Assembly quickly rectified the statute’s narrowness by omitting the word “actual,” effective less than two months after Lockwood (Ga. L. 1988, p. 420, § 2), does not right the wrong.

Present counsel is remiss in not citing any authority for the ineffective assistance claim and did not do so in the motion for new trial filed in the trial court. Whether she relied on anything specific at the hearing we cannot discern as there is no transcript with the record. The trial court’s order does not indicate what authority, if any, was cited. Thus, whether appellant relies on the State Constitution or the Federal Constitution or any statute or case law we do not know.

The majority chooses to measure effectiveness against the state-understood standard enunciated in Pitts v. Glass, 231 Ga. 638 (203 SE2d 515) (1974), before Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984) set the currently applicable Federal Constitutional standard. See, for history, Manus v. State, 180 Ga. App. 658 (350 SE2d 41) (1986), special concurrence at 660.

The State Constitution provides for benefit of counsel for accused persons in the Bill of Rights. Ga. Const. 1983, Art. I, Sec. I, Par. XIV. At the present time, this is construed similarly to the United States Supreme Court’s construction of the Sixth Amendment. See Brinson v. State, 191 Ga. App. 151 (5) (381 SE2d 292) (1989). Applying these standards to Green’s case compels the conclusion that trial counsel was constitutionally ineffective under either constitution, having failed to object to the instruction which was erroneous because contrary to state statute detailing the elements of the crime with which he was charged. Failure to object rendered the error unreviewed on direct appeal because the principle of waiver was applied, and defendant was deprived of a new trial.

Decided May 9, 1989

Rehearing denied June 6, 1989

Janet G. Scott, for appellant.

Robert E. Keller, District Attorney, Albert Collier, Assistant District Attorney, for appellee.

That is what he complains of now, although his counsel fails to brief the complaint fully and properly, see Rule 15 (c) (2), and the trial court erred in denying the motion for new trial on this ground.


text:
    A89A0370.
    JOHNSON v. THE STATE.
    (383 SE2d 146)
   Pope, Judge.

Defendant Eddie D. Johnson appeals his conviction of robbery by sudden snatching. We affirm.

1. Defendant made several statements to the authorities after his arrest in which he admitted driving the get-away car for an unidentified man who ran out of a jewelry store with two diamond rings that were being shown to him by a store clerk. Although defendant testified at the admissibility hearing that he had requested the benefit of counsel before making the statements and no counsel was provided, the evidence shows defendant signed written waivers of his right to counsel. The officers who questioned defendant also testified that defendant was informed of his right to counsel on each occasion before he was questioned and that defendant waived his right to counsel and made the statements voluntarily. “Factual and credibility determinations as to voluntariness of a confession, including factual and credibility determinations as to issues of rights waiver, are normally made by the trial judge and must be accepted by appellate courts unless such determinations are clearly erroneous.” Johnson v. State, 186 Ga. App. 801, 803 (368 SE2d 562) (1988). We find the trial court did not err in admitting defendant’s custodial statements.

2. Given defendant’s custodial statements and the circumstantial evidence presented in the case, sufficient evidence was presented from which a jury could find defendant guilty beyond a reasonable doubt.

3. On motion for new trial, defendant argued he received ineffectual assistance of counsel at trial. Defendant testified his counsel knew or should have known he was under the influence of drugs during the trial and that he told his counsel he was under the influence of drugs on each occasion on which he made a custodial statement to the investigating officers, yet counsel failed to bring these matters to the attention of the court. Defendant’s counsel, testifying at the hearing on the motion for new trial, denied any knowledge or suspicion that defendant was under the influence of drugs at any time during the trial of the case and did not recall defendant ever informing him that he was under the influence of drugs when the custodial statements were made. The investigating officers who observed the defendant at the time of his custodial statements testified defendant did not appear to be under the influence of drugs. The trial judge who heard the motion for new trial was also the judge who conducted the trial and had the opportunity to observe defendant during the trial of the case. We find no evidence to support defendant’s contention that he was denied effective assistance of counsel.

4. Testimony of witnesses to the robbery showed that the getaway car was red and that a bystander who pursued the robber out of the store was able to slash the rear tire of the vehicle with a knife as it drove away from the jewelry store. The prosecutor asked one of the arresting officers, “Did you find a red vehicle, one with a tire flat on it sitting out there [at the apartment building where defendant was arrested]?” The question, though somewhat leading, essentially asked, “Did you find a vehicle which matched the description of the getaway car?” We find no reversible error in the trial court’s overruling defendant’s objection to the question.

5. One of defendant’s custodial statements contained a reference to the fact that defendant and others took an unidentified drug before committing the robbery. We find no reversible error in the ad-

I mission of a police officer’s testimony concerning his opinion of the definition of certain slang words used by defendant in regard to the taking of drugs.

6. Defendant waived his objection to the court’s consideration of a previous felony conviction which did not show on its face whether defendant was represented by counsel because the objection was not raised during the sentencing hearing. See Golden v. State, 177 Ga. App. 747 (341 SE2d 480) (1986); Copeland v. State, 160 Ga. App. 786 (12) (287 SE2d 120) (1982).

7. We have considered defendant’s enumerations of error in regard to the instructions given to the jury, as well as requested instructions not given, and find no reversible error.

8. The trial court did not abuse its discretion in allowing an officer witness to remain in the courtroom at the request of the prosecutor to assist the prosecutor in the trial of the case even though the rule of sequestration was invoked. See Justice v. State, 213 Ga. 166 (2) (97 SE2d 569) (1957).

9. The court did not err in refusing to conduct a hearing outside the presence of the jury before the officer testified that a bag containing two handguns was found in the defendant’s bedroom closet. First, no specific objection to the relevance of this testimony was raised by defendant at trial. Second, the presence of the gun was relevant to the facts of the case at hand since defendant admitted in his custodial statement that the other parties to the crime had carried a gun and that upon returning to the apartment building after the robbery, one of the other parties gave defendant a bag and told him to “stash it” at his apartment.

Decided May 22, 1989

Rehearing denied June 6, 1989

Nancy A. Bradford, for appellant.

W. Fletcher Sams, District Attorney, William H. Stevens, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0541.
    HATTAWAY v. THE STATE.
    (383 SE2d 140)
   Pope, Judge.

Defendant Tammy Hattaway appeals from her conviction and sentence for driving under the influence of alcohol in violation of OCGA § 40-6-391. Held:

1. Defendant first posits the argument that the trial court erred in admitting evidence of two prior similar offenses. “ ‘Before evidence of similar offenses is admissible, two criteria must be met. First, it must be shown that [the defendant] was the perpetrator of the similar offenses, and second, there must be sufficient similarity or connection between the independent crimes and the offense charged that proof of the former tends to prove the latter.’ Wimberly v. State, 180 Ga. App. 148 (348 SE2d 692) (1986).” Kickery v. State, 185 Ga. App. 274, 276 (363 SE2d 805) (1987). Identity of the defendant as the perpetrator of both the prior and present offenses is not disputed in the case at bar. Rather, defendant challenges the admission of evidence of the prior offenses on the basis that the State failed to show sufficient factual similarities between the offenses. We disagree. The first incident occurred on January 5, 1985, the second incident occurred on March 13,1987 and the present offense occurred exactly eight months later, on November 13, 1987. The first incident occurred on a Saturday night, the latter two on Friday nights. In each incident defendant was stopped between 1:00 and 2:00 a.m. in the northern metropolitan Atlanta area. Defendant was driving the same car, a 1984 Honda Accord, when she was arrested for the two most recent offenses. The defendant submitted to State administered tests on all three occasions. Clearly, there are sufficient similarities between the two prior offenses and the offense charged in this case to warrant the admission of the prior offenses to show course of conduct and bent of mind. Cunningham v. State, 255 Ga. 35 (4) (334 SE2d 656) (1985); Simon v. State, 182 Ga. App. 210 (1) (355 SE2d 120) (1987); Kilgore v. State, 176 Ga. App. 121 (335 SE2d 465) (1985). The fact that defendant did not “contest” the two prior offenses is of no relevance in determining whether they were of sufficient factual similarity to warrant their admission for those purposes. We find no error.

2. Defendant also asserts as error the denial of her motion to exclude the results of two intoximeter tests performed after she was arrested, arguing that the results of said tests should have been suppressed because the arresting officer discouraged her from taking a blood test after she had elected to do so as provided by OCGA § 40-6-392 (a) (3), and forced her to accept the State’s choice as to the type of independent test administered.

The evidence at the hearing on defendant’s motion, consisting of the testimony of the defendant, a friend of the defendant’s, and the arresting officer, shows the following: The arresting officer testified that she twice read the defendant her implied consent rights and informed her of her right to take an independent test of her own choosing as provided by OCGA § 40-6-392. The arresting officer testified that defendant was initially unsure whether or not she wanted a second test, but elected to take a second breath test after she saw the results of the first test, because “she didn’t trust the machine” used to administer the first test. The officer testified that there may have been some discussion between her and the defendant prior to the time she administered the first test and that the defendant asked the officer “Do you really have to do this to me? I’m not drunk.” The officer also testified that the defendant asked her “Well, do you think I ought to [take the breath test]?”

The defendant testified that while en route to the police station she “asked specifically about a blood test” but the officer told her it was too time consuming. She further testified that she again requested a blood test at the police station, was again discouraged and “thought my best alternative was to take [a] breath test.” The defendant’s friend, who accompanied defendant in the squad car to the police station, testified that she and the defendant “were just going back and forth trying to decide” on which test to take, and that they asked the arresting officer about a blood test and that her “impression” was that the officer indicated that the blood test “was possibly a hassle.” The trial court concluded that “[b]y her own testimony, [defendant] stated that she decided that her best alternative was to take the breath test and that she was given that second breath test.” We find no error. Although the testimony of the witnesses was not without conflict, the resolution of conflicting testimony concerning the pursuit of additional testing is for the trial court. Dozier v. State, 187 Ga. App. 51 (1) (369 SE2d 328) (1988); Lovell v. State, 178 Ga. App. 366 (2) (343 SE2d 414) (1986). “[Defendant’s] version of the colloquy [between her and the arresting officer] did not demand a finding of unlawful coerciveness. An arrest is, by its very nature, a coercive event and the arrestee’s own subjective interpretation of that event as exceeding the permissible limits of coerciveness is not controlling.” State v. Willis, 184 Ga. App. 639, 641 (362 SE2d 444) (1987). As there was no evidence of actual coercion in the case at bar, the trial court did not err in denying defendant’s motion.

Decided May 17, 1989

Rehearing denied June 6, 1989

Jones, King & King, David H. Jones for appellant.

Ralph T. Bowden, Jr., Solicitor, N. Jackson Cotney, Jr., R. Andrew Fernandez, Assistant Solicitors, for appellee.

3. Lastly, defendant argues that the trial court improperly restricted her cross-examination of the arresting officer. We disagree. The trial court allowed defendant to question the officer on the issues relevant to the motion hearing, and the court specifically asked the arresting officer the question defense counsel proposed to ask the witness concerning the delay in administering the second breath test. This enumeration affords no basis for reversal.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.