text:
    A95A0742.
    GARRISON v. THE STATE.
    (458 SE2d 162)
   McMurray, Presiding Judge.

Defendant Garrison was charged by indictment with the offense of aggravated child molestation and convicted of the lesser included offense of child molestation. Held:

The child was three years old at the time of the crime of which defendant was convicted, and four years old at trial. The inquiry which resulted in the prosecution of defendant began when a discoloration initially thought to be blood was discovered on the child’s panties. Interviews with the child, by employees of the Rabun County Department of Family & Children Services (“DFACS”), produced statements by the child implicating defendant and others in various incidents of sexual misconduct with her. Two DFACS workers, as well as a foster mother and a ten-year-old playmate of the child, testified at trial concerning the child’s statements to them concerning sexual contacts with her by defendant. The child testified at trial and declined to respond to some questions, but did state she had seen defendant’s private parts and that her statements to the DFACS workers who had conducted the interviews and to the foster mother had been truthful. An examination of the child’s private parts by a physician revealed some redness or irritation of her vaginal area and a vaginal discharge, but there was no conclusive physical indication that a sexual molestation had occurred.

Defendant testified and denied any misconduct. On cross-examination defendant testified that he had not been previously arrested or charged with such a crime. He also stated that he had “never done anything.” The prosecuting attorney then asked defendant whether he had tried to rape his niece when she was 12 years old. Defendant denied that such an incident had occurred.

The prosecuting attorney then began a series of questions asking why the defendant’s niece would have told a sheriff’s department investigator that there had been such an incident if this was not true. Defendant explained that he had talked to his niece since she had talked to the investigator and that she had told him that the investigator had coerced her into saying it. Defense counsel objected to the line of questioning in the absence of the niece to testify, but the prosecuting attorney was permitted to continue the cross-examination during which defendant conceded that his niece had accused him of attempting to rape her. The final witness at trial was a sheriff’s department investigator, presented as a rebuttal witness, who testified that he had investigated the alleged attempted rape of defendant’s niece and that in the course of that investigation had been told by the niece and her mother that the incident had actually occurred.

In his first enumeration of error, defendant contends that the trial court erred in allowing evidence of the alleged attempted rape of his niece over his objections. But the argument presented in support of this enumeration is not related to any objection referenced by defendant. Indeed, since there is no objection raising the issue argued on appeal, it was not preserved for appellate review. Corey v. State, 211 Ga. App. 333, 334 (3) (439 SE2d 513).

Defendant’s remaining enumerations of error contend that he was denied effective assistance of counsel at trial and that the trial court erred in denying his motion for new trial on this basis. In addressing allegations of ineffective assistance of counsel, we employ the two-prong test which requires defendant to show that trial counsel’s performance was deficient and that the deficient performance prejudiced defendant. Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590). The trial court found that trial counsel’s performance was neither deficient nor prejudicial.

Defendant argues that nothing in his trial testimony opened the door to evidence concerning the alleged attempted rape. In his argument, defendant makes reference to his testimony on cross-examination that he had never been arrested nor charged with such a crime and maintains that impeachment should be limited to evidence which directly contradicts that testimony. But defendant’s argument does not acknowledge that when asked whether his testimony meant he had never committed any act like that for which he was charged, defendant stated that he had “never done anything.” The State was entitled to impeach this broader statement by defendant with evidence that the testimony given by defendant was not truthful. OCGA § 24-9-82; Crane v. State, 263 Ga. 518, 519 (1a) (436 SE2d 216). The prosecution’s cross-examination of defendant concerning the alleged attempted rape was not improper due to the absence of the niece who was the victim of that incident. Butts v. State, 193 Ga. App. 824, 826-827 (2) (389 SE2d 395). Nor is defendant’s reliance on Bryant v. State, 204 Ga. App. 856, 860 (420 SE2d 801) well placed since that case may be factually distinguished on the basis that the questions complained of there had no rational connection with any attempt to contradict that defendant’s testimony.

Decided May 30, 1995.

Scott B. Barloga, for appellant.

There was also evidence from the sheriff’s department investigator and defendant’s nephew that following defendant’s attempted rape of his niece, defendant’s brother had broken a shotgun over defendant’s head in retribution. Defendant argues that his trial counsel should have objected to this evidence since it put his character in issue. But since the evidence presents only the actions of defendant’s brother we fail to see how it reflects on defendant’s character. The decision not to object to this obviously irrelevant testimony must be viewed as a matter of trial strategy and did not deprive defendant of a fair trial. Anderson v. State, 206 Ga. App. 354, 355 (2) (426 SE2d 6).

The discolored panties found on the child, in the case sub judice, were sent to the crime laboratory to determine if the stain was blood. No blood was found and defendant’s trial counsel was provided with a copy of the laboratory report before trial. Defendant complains that his trial counsel was ineffective in failing to present a witness able to lay a foundation for the admission of this report into evidence and in failing to object at trial to references to “bloody panties.” Because of the verdict of acquittal of aggravated child molestation, it is apparent that any deficiency in trial counsel’s performance in regard to this issue did not prejudice the defense. The suspicion that there was blood on the panties served to explain the conduct of certain witnesses, but the question of whether or not there was actually blood present was relevant only to the proof of the offense of aggravated child molestation. Since the jury acquitted defendant of that charge, no prejudice to defendant is shown. Jones v. State, 180 Ga. App. 706, 707 (350 SE2d 309).

In conclusion, we find that defendant was not prejudiced by any deficient conduct of his trial counsel. The trial court did not err in denying defendant’s motion for new trial on the ground of ineffective assistance of trial counsel.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A95A0568.
    PRINTUP v. THE STATE.
    (458 SE2d 662)
   Johnson, Judge.

Jerome Printup appeals from his conviction of aggravated battery.

1. Printup’s challenge to the sufficiency of the evidence supporting the verdict is without merit. Myra Webb testified that she and Printup had an argument in her parents’ home, during which he beat and kicked her, injuring her ribs, lung and face. Printup denied that he hit or kicked Webb, testifying that Webb started the altercation by jumping on and slapping him, that he pushed her, and that they then tussled and fell on a fireplace. Having reviewed the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found Printup guilty beyond a reasonable doubt of aggravated battery. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Thompson v. State, 156 Ga. App. 1, 1-3 (1), (2) (273 SE2d 894) (1980).

2. Printup contends the court erred in denying his motion for a new trial on the grounds that his trial counsel was ineffective in failing to interview and call defense witnesses, and in failing to request jury charges on accident and the lesser included offense of simple battery. The attorney testified at the motion for new trial hearing that Printup did not inform him of the identity of any of the witnesses whom Printup now claims the lawyer should have called to testify. Counsel also testified that his decision not to request charges on accident and simple battery was a trial strategy or tactic. Based on the attorney’s testimony, the court’s denial of Printup’s motion for a new trial was not clearly erroneous. See Roberts v. State, 263 Ga. 807, 808-809 (2) (c) (439 SE2d 911) (1994); Sydenstricker v. State, 209 Ga. App. 418, 420-422 (3) (433 SE2d 644) (1993).

3. Printup claims his attorney was ineffective in failing to submit a written request for a jury charge on self-defense. At the charge conference, the attorney orally asked the court to give a self-defense charge, stating he did not submit a written request for such a charge because he presumed, based on the evidence presented, that it would be part of the court’s standard jury charge. The court, however, refused to give a self-defense charge because the attorney had not made his request in writing and the evidence did not support such a charge. Printup’s counsel did not object to the court’s refusal to give the charge. Although Printup has raised the issue of the court’s refusal to give a self-defense charge in the context of an ineffective assistance of counsel claim and despite trial counsel’s failure to object to the court’s ruling, we must still determine the propriety of the court’s ruling on the charge. “[W]e must consider a substantial error in a jury charge which is harmful as a matter of law, regardless of whether or not objection was made below. [Cit.]” Nelson v. State, 213 Ga. App. 641, 643 (3) (445 SE2d 543) (1994). Under the circumstances of the instant case, the trial court erred as a matter of law in refusing to give a self-defense charge and therefore we need not address the issue of the effectiveness of Printup’s counsel.

Decided May 4, 1995

Reconsideration denied May 31, 1995

L. Stanford Cox III, for appellant.

Alan A. Cook, District Attorney, Christopher S. Brasher, Assistant District Attorney, for appellee.

“The trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge. [Cits.]” Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991). Contrary to the finding of the trial court, Printup was the lone defense witness and the only defense theory raised by his testimony was self-defense. Printup’s claim that Webb initiated the altercation by jumping on and hitting him and that he merely tried to push her away provides some evidence supporting a charge on self-defense. See OCGA § 16-3-21. Consequently, the court’s refusal to give a charge on Printup’s sole defense, even absent a written request for the charge, was erroneous as a matter of law. Because the jury was not instructed on Printup’s sole defense theory, his conviction must be reversed and he is entitled to a new trial. See Jackson v. State, 154 Ga. App. 867, 869 (2) (270 SE2d 76) (1980).

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.


text:
    A95A0789.
    PIGGLY WIGGLY SOUTHERN, INC. v. BENNETT et al.
    (458 SE2d 138)
   Johnson, Judge.

Janeice Bennett sued Piggly Wiggly Southern, Inc., for personal injuries sustained when she tripped and fell outside Piggly Wiggly’s grocery store. Bennett’s husband also sued Piggly Wiggly for loss of consortium. Piggly Wiggly moved for summary judgment. The trial court denied the motion, and this court granted Piggly Wiggly’s application for interlocutory review of the lower court’s ruling.

“On motion for summary judgment, the burden is on the movant, regardless of which party would have the burden of proof at trial, to show there is no genuine issue of material fact. All evidence is to be construed most strongly against the movant, and the party opposing the motion is given the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence. [Cits.]” Reid v. Southern Bell Tel. &c. Co., 182 Ga. App. 524 (356 SE2d 77) (1987). Construed against Piggly Wiggly and in favor of the Bennetts, the evidence in this case shows that Janeice Bennett fell when the heel of her shoe caught on what she described as “a little lip, [a] small lip” at the edge of Piggly Wiggly’s parking lot where it adjoins a grocery cart ramp leading toward the store entrance. Bennett testified at her deposition that she looked directly at the joint between the parking lot and the ramp as she stepped on it. Based on this evidence, Piggly Wiggly met its burden of proving there are no genuine issues of material fact.

“Occupiers of premises whereon the public is invited to come are not required to keep their parking lots and other such areas free from irregularities and trifling defects. One coming upon such premises is not entitled to an absolutely smooth or level way of travel.” (Citations and punctuation omitted.) Ferguson v. Columbia Properties, 207 Ga. App. 517, 518 (428 SE2d 422) (1993). “It is common knowledge that small cracks, holes and uneven spots often develop in pavement; and it has been held that where there is nothing to obstruct or interfere with one’s ability to see such a static defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved.” (Punctuation omitted.) Wiley v. Family Dollar Store &c., 208 Ga. App. 461, 462 (430 SE2d 839) (1993). Here, the uneven pavement upon which Bennett tripped was a static, trifling defect and nothing obstructed Bennett’s view as she looked directly at it. Because the undisputed evidence shows Piggly Wiggly was justified in assuming Bennett would see and realize any risk posed by the slightly uneven pavement, the court erred in denying Piggly Wiggly’s motion for summary judgment as to Bennett’s personal injury claim. See Crenshaw v. Hogan, 203 Ga. App. 104, 105 (416 SE2d 147) (1992); Emory Univ. v. Duncan, 182 Ga. App. 326, 329 (2) (355 SE2d 446) (1987). Likewise, the court erroneously denied summary judgment to Piggly Wiggly on Bennett’s husband’s derivative claim of loss of consortium. See Horn v. Foodmax of Ga., 210 Ga. App. 506, 508 (2) (437 SE2d 336) (1993).

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.

Decided May 3, 1995

Reconsideration denied May 31, 1995.

Hodges, Erwin, Hedrick & Coleman, William A. Erwin, for appellant.

Simpson, Gray & Carter, Ralph F. Simpson, Melanie B. Cross, for appellees.


author: Birdsong, Presiding Judge.

text:
    A95A0343.
    A95A0344,
    A95A0345.
    JACKSON et al. v. BEECH AIRCRAFT CORPORATION. BEECH AIRCRAFT CORPORATION v. JACKSON et al. (two cases).
    (458 SE2d 377)
   Birdsong, Presiding Judge.

This litigation arises from an aircraft accident; the pilot Dr. Joseph Jackson and his son were injured in the crash. Dr. Jackson, his wife, and son brought suit against Beech Aircraft Corporation (Beech Aircraft), the manufacturer of the plane, alleging defects in the aircraft. The jury returned a verdict in favor of defendant Beech Aircraft. The Jacksons appeal this judgment, and Beech Aircraft cross-appeals; Beech Aircraft also appeals the denial of its motion to dismiss the Jacksons’ appeal on grounds of delay in the filing of the transcript. The Jacksons’ notice of appeal was filed timely on November 12, 1992.

In Jackson v. Beech Aircraft Corp., 213 Ga. App. 172 (444 SE2d 359), this court examined appellee’s motion to dismiss the appeal in light of the unreasonable delay found to exist, and remanded the case to the trial court with direction to enter certain specific findings. The trial court conducted a hearing and, after entering certain additional findings, denied Beech Aircraft’s motion to dismiss and granted the parties’ motions to reinstate their appeals. Held:

Case No. A95A0345 (Denial of Motion to Dismiss Appeal) ■

1. The opinion of this court in Jackson, supra, was not appealed by either party; accordingly, the holdings therein were binding on the trial court (Ga. Const, of 1983, Art. VI, Sec. V, Par. III; see Moore v. American &c. Motor Corp., 211 Ga. App. 337, 340 (1) (439 SE2d 43)), including the holding that “[t]here exists a plethora of evidence to support the trial court’s finding that unreasonable delay has occurred.” Jackson, supra at 173. The three criteria for dismissal of an appeal for failure to file timely a transcript are explained in Baker v. Southern R. Co., 260 Ga. 115 (390 SE2d 576); we will review this enumeration in light of the precedent of Baker.

In doing so, we recognize that in making its factual determinations, a trial court “exercises a broad legal discretion which is subject to appellate scrutiny only for abuse.” Miller v. Ingles Market, 214 Ga. App. 817, 818 (449 SE2d 166). Compare Leonard v. Ognio, 201 Ga. App. 260 (410 SE2d 814) (reversing trial court’s denial of motion to dismiss appeal on grounds of abuse of discretion).

2. OCGA § 5-6-42 provides for filing of a transcript within 30 days after notice of appeal is filed unless filing time is extended as provided by OCGA § 5-6-48. As we previously concluded (Jackson, supra), unreasonable delay occurred in the filing of the trial transcript in this case.

However, on remand the trial court entered an order denying Beech Aircraft’s motion to dismiss. In support of that ruling, the trial court affirmatively made the following 13 findings of fact seriatim: (1) record preparation was completed February 2, 1994; (2) plaintiffs Jacksons were billed for record preparation on April 28, 1993; (3) plaintiffs Jacksons paid the clerk’s cost bill on or about April 29, 1993; (4) the superior court clerk’s office did not begin record preparation until after completion and delivery of the trial transcript to the clerk; (5) delay in ordering the transcript caused delay in delivering the record to the Court of Appeals; (6) the record was prepared within 12 working days after delivery of the transcript on January 14, 1994; (7) no unreasonable delay would have occurred had the transcript been timely filed; (8) plaintiffs Jacksons formally ordered a transcript in April 1993; (9) plaintiffs Jacksons made the deposit in April 1993 for the transcript required by the reporters; (10) there was an unreasonable delay in filing the transcript and preparation of the record; (11) the cause of delay in filing the record was the failure of plaintiffs Jacksons to order the transcript in a timely manner; (12) plaintiffs Jacksons’ counsel were reasonable in their belief that the transcript had been ordered and was being or would be prepared in a timely fashion; and (13) the delay in preparation of the transcript and filing of the record with the Court of Appeals was excusable and therefore did not constitute unexcusable neglect. We find the record supports the trial court’s findings nos. 1-11; however, for reasons hereinafter discussed, the latter two findings, nos. 12 and 13, are not supported by the record. As we conclude transcript preparation delay was unreasonable and caused by plaintiffs Jacksons, and that any delay in preparation of the trial record was caused by the plaintiffs’ failure to order the transcript in a timely manner, the remaining issue is whether the trial court, under these unique circumstances, abused its discretion in finding that this protracted delay was excusable.

To support dismissal of an appeal for failure to file a transcript timely, OCGA § 5-6-48 (b) requires that the unreasonable delay caused by the appealing party must also constitute an “inexcusable” delay. With certain exceptions not here applicable, “[i]n all interpretations of statutes, the ordinary signification shall be applied to all words. . . .” OCGA § 1-3-1 (b). The ordinary signification applied to the word “inexcusable” is that the conduct by act or omission was “not excusable; incapable of being justified.” Webster’s Encyclopedic Unabridged Dictionary of the English Language (1989). Plaintiffs Jacksons argued and the trial court found they had harbored a good faith belief that the transcript had been timely ordered. While good faith is a factor in determining whether conduct is inexcusable or excusable, it is but one factor to be considered; existence of good faith does not automatically render an unreasonable delay excusable. Whether conduct is incapable of being justified and thus inexcusable must be determined by examining the totality of the circumstances of a given appeal. Among the factors which should be considered is the existence of negligence on the part of the appealing party causing unreasonable delay, whether such delay reasonably should have been detected and timely corrected, and whether any such negligence was so severe as to prejudice the opposing party or to cause the appeal to become stale, within the meaning of Jackson, supra, and Cousins Mtg. &c. v. Hamilton, 147 Ga. App. 210 (248 SE2d 516).

Judgment was entered in favor of defendant Beech Aircraft on August 31, 1992. The Jacksons filed a motion for new trial. A few days prior to the hearing on the motion for new trial, Beech Aircraft sent a letter to the court reporters saying the defense would need a full transcript of the proceedings; however, the Jacksons’ lead counsel testified that he was unaware of this letter before the hearing, and at the hearing he learned that Beech Aircraft had ordered a trial transcript for the “purpose” of responding to the Jacksons’ supplemental brief and amended motion for new trial. Beech Aircraft also filed a motion for continuance in order to obtain the transcript for use in opposition to the motion for new trial; motion for continuance was denied. Motion for new trial hearing was held on October 9, 1992. At the hearing, counsel for Beech Aircraft stated that he had asked for the transcript to be produced; counsel for the Jacksons argued that production of the trial transcript was not necessary for a ruling by the trial court on the motion. At the end of the hearing, counsel for the Jacksons made a motion that the defense be required to provide them with a copy of the trial transcript at Beech Aircraft’s expense. The trial court denied the motion to compel the defense to provide a copy of the record in open court at the hearing. Although the Jacksons’ local and lead counsel stated that after the new trial motion hearing they were under the impression the transcript had been ordered, the denial of the motion to compel defendants to provide a transcript to plaintiffs placed the Jacksons on reasonable notice they would have to make their own timely arrangements with the court reporter to order and obtain a copy of the trial transcript. Moreover, any implication of confusion among the Jacksons’ counsel, as to which of them was responsible for procuring the transcript for appeal, would not serve as justification for the filing in this court of an untimely appeal (compare Dept. of Human Resources v. Patillo, 196 Ga. App. 778 (397 SE2d 47) and In re G. W. H., 168 Ga. App. 845 (310 SE2d 573)). Further, although the Jacksons’ lead counsel testified that following the motion for new trial hearing he expected the transcript to be furnished in installments and invoices sent therewith, the record unequivocally establishes that the court reporter was never contacted as the months went by and as repeated extensions of transcript filing time were sought and granted without the receipt by the Jacksons’ counsel of any transcript installments whatsoever. The failure to contact the court reporter is even more flagrant if the Jacksons’ counsel actually expected the transcript to be provided in installments; an installment should be completed and delivered much sooner than a complete transcript, and failure to inquire as to the lack of such receipt is even more egregious and unjustifiable under these circumstances. In this regard, the Jacksons’ lead counsel conceded on the record, “I would admit to the court that maybe we could have done some additional things to follow up on this; maybe we should have anticipated that something was going wrong. We did note the record was taking a long period of time to prepare. We had corresponded with the clerk of the court about the specifics of the record and we just assumed, because of the business of the court and the business of the court reporter that the transcript was also taking quite a period of time.” (Emphasis supplied.) At no time did the Jacksons’ lead counsel contact Beech Aircraft’s counsel to inquire whether the transcript was still on order following denial of the new trial motion.

On October 12, 1992, motion for new trial was denied, and on October 15, 1992, Beech Aircraft’s counsel sent a letter to the court reporter cancelling their order of the trial transcript. The court reporter, having no duty to do so, did not inform the Jacksons of this letter; the burden to keep accurately informed of the status of transcript preparation remains with the party having the responsibility to file the transcript and it cannot be shifted to the court reporter (cf. Dunbar v. Green, 232 Ga. 188 (205 SE2d 854); Malin Trucking v. Progressive Cas. Ins. Co., 212 Ga. App. 273, 274 (441 SE2d 684)).

The Jacksons filed a timely notice of appeal on November 12, 1992. Shortly before or after November 5, 1992, a non-lawyer assistant from the office of the Jacksons’ lead counsel contacted the court reporter inquiring as to what the process was for ordering the transcript. The court reporter informed the assistant that she would have to find out “the amount [all the court reporters] would require to begin the transcript.” (Emphasis supplied.) A few days thereafter, the court reporter called the assistant and informed him of the deposit amount required “in order to begin the case” transcription. (Emphasis supplied.) We impute to the Jacksons the knowledge which was gained by the agent of their lead counsel. Shortly thereafter, local counsel for the Jacksons also contacted the court reporter who informed him that the assistant for lead counsel had been provided with the information regarding costs for commencing transcript preparation. It is unrefuted that local counsel informed the court reporter that he would get in touch with the assistant. Moreover, during a subsequent hearing on the motion to dismiss, the Jacksons’ local counsel made an admission in judicio in open court of the fact that when he called the court reporter to order the transcript, “she would not accept my order because she had to figure out how much it would be” (see generally Lingerfelt v. State, 255 Ga. 180, 181 (3) (336 SE2d 250); Lamb v. Decatur Fed. &c., 201 Ga. App. 583, 588 (411 SE2d 527)); local counsel never made another application for the transcript with the reporter until his letter written in late April 1993. (Emphasis supplied.) Moreover, the fact that local counsel attempted to order the transcript in November 1992 belies plaintiffs Jacksons’ argument that they were relying entirely on a good faith belief that defendant Beech Aircraft had ordered the transcript. Local counsel also stated in open court that he would not “dispute” the essence of the court reporter’s testimony that regarding the transcript he had indicated, “ ‘we’ll get back to you.’ ” The record establishes that the court reporter was not contacted in the interim by any of the Jacksons’ counsel or their agents and did not receive a check to commence transcript preparation until April 29, 1993. We recognize that the procedure which the Jacksons’ agents were informed must be used to obtain commencement of record preparation differed from the procedure used during trial to obtain preparation of depositions or portions of the transcript; during trial, transcript portions were apparently ordered and the attorneys billed after preparation. However, it also is unrefuted that until on or about April 29, 1993, none of plaintiffs’ counsel or their authorized agents ordered an official trial transcript from the court reporters. At no time did the court reporter have a duty to inform any party to the trial that the transcript had not been officially ordered or that it was not being prepared. The statutory duty to file timely a transcript does not rest with the court reporter; rather the duty to order the transcript and to monitor timely the progress of the reporter’s office in transcript preparation is vested upon the appropriate appealing party — in this instance, the Jack-sons. It would create an unacceptable and impractical burden on the court reporter’s office to require them to contact attorneys or parties and report on the status of all ordered transcripts or to contact attorneys inquiring whether a transcript was being ordered; we decline to take this opportunity to create such an oppressive administrative requirement.

In January 1993, a hearing on a motion by defendant Beech Aircraft for correction and certification of the record on appeal was filed during which the Jacksons were put on notice by Beech Aircraft’s counsel that the transcript might not be ordered. At this hearing, Beech Aircraft’s counsel expressly stated on the record that “I do not believe the transcript has yet been prepared, don’t know whether it’s even ordered.” (Emphasis supplied.) Once again, plaintiffs Jacksons were placed on reasonable notice of an immediate need to inquire directly of the court reporter whether the trial transcript had been ordered, and once again they failed to exercise reasonable diligence in making such an appropriate inquiry. The Jacksons’ New York counsel stated that in February 1993 he had a very brief conversation with counsel for Beech Aircraft and was informed that apparently the transcript had “recently been ordered,” but he was not told that it had been ordered by anyone at the defense table. Whatever impact this statement may have had, if any, it would not justify, that is excuse, the unreasonable delay occurring before that time, or negate the in-court notice the Jacksons received in January 1993 that Beech Aircraft was not certain that the transcript had then been ordered.

On or about April 23, 1993, the Jacksons’ counsel finally contacted the reporter and discovered the transcript had not been ordered. Nevertheless, on April 28, 1993, a hearing was held during which the Jacksons’ counsel admitted on the record that the transcript still had not yet been ordered by them. Finally, on April 29, 1993, the Jacksons paid a deposit on the transcript and record; it was not until this approximate date that a formal request was made by the Jacksons that the trial transcript be prepared maugre the prior on-the-record notice they received at the January hearing that the transcript might not have been timely ordered by anyone. The trial transcript was finally delivered on January 14, 1994, to the office of the clerk of court of the superior court; the record was prepared on February 2, 1994, after the clerk of court received the transcript. The record and transcript were delivered to this court by the local sheriff on February 8, 1994.

The record reveals the following pertinent series of extensions for transcript filing sought by the Jacksons and granted by the trial court: (a) 90-day extension requested for preparation and filing of transcript granted on November 12, 1992; (b) 60-day extension granted after being requested on February 12, 1993, on the grounds, inter alia, that “the transcript has not yet been completed by the court reporter”; (c) 15-day extension requested on grounds the transcript was not yet completed by court reporter and granted on April 15, 1993; and (d) request on April 22, 1993, for an indefinite extension of time within which the transcript and record might be prepared and submitted. At no time after mid-November 1992 and until April 1993 when the Jacksons discovered the transcript had not been ordered did any of their counsel write to or otherwise communicate with the court reporter to determine the status of the transcript, this occurring notwithstanding the repeated requests for extensions of filing time made by them and granted by the trial court. On occasion of each critical time extension, as reflected by the trial court’s orders, the Jacksons caused the trial court to conclude that such extensions were necessary for transcript preparation and filing; yet, at no time had the Jacksons directly communicated with the court reporter to obtain an accurate report of transcript preparation status. Had such communication been diligently accomplished, as reasonably should have been done, the fact the transcript had not been ordered would have been readily detected and timely corrected. To repeatedly request extensions over a period of months without making a diligent inquiry as to the transcription status with the court reporter constitutes additional evidence of a lack of reasonable justification, under the circumstances of this particular case. Compare Patillo, supra (four-month failure to make any effort to secure transcript; appellant’s counsel telephoned court reporter requesting transcript preparation and took no further action to assure it was prepared and filed until after filing time expired). Under the totality of the circumstances, the acts and omissions of the Jacksons regarding this matter were so severe as to cause a substantial delay in the ultimate docketing of these appeals and to render them stale within the meaning of Jackson, supra, and Cousins, supra. The trial court abused its discretion in finding that the unreasonable delay in this case, which had been caused by the Jacksons, was excusable; applying standards of Baker, supra, we find the unreasonable delay caused by the Jacksons was without reasonable justification and was inexcusable.

Decided May 31, 1995

Bates, Kelehear, Starr & Toland, James E. Toland, Jr., J. Ray mond Bates, Jr., Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., for the Jacksons.

Case Nos. A9BA0343 and A9BA0344

In view of the holding above, these related appeals are also dismissed.

Judgment reversed in Case No. A9BA0343. Appeals dismissed in Case Nos. A9BA0343 and A96A0344.

Andrews and Smith, JJ., concur. Johnson, J., not participating.

Gray, Gilliland & Gold, T. Cullen Gilliland, for Beech Aircraft Corp.


author: Smith, Judge.

text:
    A95A0643.
    In the Interest of C. P., a child.
    (458 SE2d 166)
   Smith, Judge.

C. P., a minor, appeals from the denial of her timely motion to set aside the sentence imposed after she was adjudicated delinquent.

C. P., who was then 13 years old, was placed on probation in February 1994 for possessing alcohol. In September 1994, she was adjudicated delinquent for violating the terms of that probation. In addition to other treatment, the juvenile court judge ordered her to serve 90 days in a youth development center, as provided by OCGA § 15-11-35 (b). That statute, as amended, provides in pertinent part that if a child “is adjudicated for the commission of a delinquent act, the court may in its discretion, in addition to any other treatment or rehabilitation, order the child to serve up to a maximum of 90 days in a youth development center.”

C. P. contends that because the Code section grants discretion to the juvenile court to order this particular sentence only when the child has been adjudicated delinquent, and because possession of alcohol is defined by the Code as an unruly, rather than a delinquent, act, the trial court was without authority to sentence her under OCGA § 15-11-35 (b). The issue for determination is, therefore, whether possession of alcohol by a minor can ever be a delinquent act.

The juvenile court concluded that possession of alcohol can be either a delinquent act or an unruly act, and that it had the discretion to sentence C. P. under OCGA § 15-11-35 (b). Although we do not agree with the juvenile court’s reasoning, we agree that sentencing under OCGA § 15-11-35 (b) was proper, and we affirm.

The court based its conclusion that possession of alcohol may be either a delinquent act or an unruly act primarily upon OCGA § 3-3-24.1, which, until its recent amendment, dealt with entry by minors onto the premises of business establishments engaged in the retail sale of alcoholic beverages in counties with certain populations. The legislature amended OCGA § 3-3-24.1 in 1994, reserving subsection (b); the statute in its present form does not contain a definition of conduct that would be a violation of the statute. Under subsection (c) of that statute, “[a]ny person violating this Code section shall be guilty of a misdemeanor, except that the violation of this Code section by a person under 17 years of age shall constitute a delinquent act under Chapter 11 of Title 15 and not a misdemeanor.”

We do not agree with the juvenile court that OCGA § 3-3-24.1 has any bearing on this case. Former subsection (b) of that Code section, which provided the definition of a violation thereunder, was in effect at the time C. P.’s original probation was imposed, but the record does not establish that it was violated by C. P. The record in this case does not indicate that she ever obtained alcohol by entering a retail establishment; the original probation was imposed after C. P. was found to have been in possession of alcohol at a party. It follows that because subsection (b) has no application here, subsection (c) of the statute, which makes a violation of the statute a delinquent act, does not apply, either.

Nevertheless, we agree with the juvenile court that possession of alcohol by a minor can be either a delinquent act or an unruly act. OCGA § 15-11-2 (6) defines a delinquent act as: “(A) An act designated a crime by the laws of this state . . . [that] does not fall under subparagraph (C) of paragraph (12) of this Code section [an offense applicable only to a ‘child’] and is not a juvenile traffic offense as defined in Code Section 15-11-49; (B) The act of disobeying the terms of supervision contained in a court order which has been directed to a child who has been adjudged to have committed a delinquent act; or (C) Failing to appear as required by a citation issued with regard to a violation of Code Section 3-3-23.”

“Child” is defined in OCGA § 15-11-2 (2) as “any individual who is: (A) Under the age of 17 years; (B) Under the age of 21 years, who committed an act of delinquency before reaching the age of 17 years, and who has been placed under the supervision of the court or on probation to the court; or (C) Under the age of 18 years, if alleged to be a ‘deprived child’ as defined by this article.”

Possession of alcohol by minors is a crime. OCGA § 3-3-23. It is not, however, a crime applicable only to children as that term is defined in OCGA § 15-11-2 (2), because it is also a crime when committed by persons between the ages of 17 and 21. OCGA § 3-3-23 (1). It therefore meets the definition of a delinquent act set forth in OCGA § 15-11-2 (6) (A). See generally In the Interest of T. S., 211 Ga. App. 46 (438 SE2d 159) (1993) (affirming adjudication of minor as delinquent for possessing alcohol). It is also an act that renders a child unruly under the clear language of OCGA § 15-11-2 (12) (G).

Under established rules of statutory construction, we cannot ignore the clear language of either statute. Statutes in pari materia must be construed together and harmonized, if possible, so as to ascertain and give effect to the legislative intent. Bennett v. Wood, 188 Ga. App. 630, 632 (373 SE2d 645) (1988). The legislature obviously did not intend that the presence of any of the factors enumerated in OCGA § 15-11-2 (12) would bar a finding of delinquency. We therefore agree with the juvenile court that possession of alcohol can be either a delinquent or an unruly offense. Since possession of alcohol can be a delinquent act, it follows that violating a court-ordered probation imposed for such an offense can likewise be a delinquent act. OCGA § 15-11-2 (6) (B), (12) (F). The trial court did not err in sentencing C. P. under the provisions of OCGA § 15-11-35 (b).

Decided May 31, 1995.

Scott J. Forster, for appellant.

T. Joseph Campbell, District Attorney, Rebecca B. Tierce, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


text:
    A95A0658.
    MOSELY v. THE STATE.
    (458 SE2d 165)
   Smith, Judge.

Shawn Mosely was indicted for selling cocaine in violation of the Georgia Controlled Substances Act. OCGA § 16-13-30 (b). He was found guilty by a jury, his motion for new trial was denied, and he appeals.

1. Mosely challenges the chain of custody of the cocaine admitted in evidence as State’s Exhibit 1. Within one to two hours after purchasing the cocaine, the arresting officer placed the cocaine in a chemically-sealed, tamper-proof plastic bag and prepared an evidence receipt for it. He also locked the bag in the trunk of his car. When he retrieved the bag from his car trunk and delivered it to the State Crime Lab, there were no signs of tampering with the bag and the seal was still unbroken.

In order to show the chain of custody adequate to preserve the identity of fungible evidence, the State has the . burden of proving with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The State need not foreclose every possibility of tampering, however, and it need only show “reasonable assurance” of the identity of the evidence. Quinn v. State, 209 Ga. App. 480, 482 (3) (433 SE2d 592) (1993).

“In the absence of any evidence to refute the testimony of the unbroken chain of custody, there was no error in admitting the exhibit. [Cit.] It is not necessary that the state show the drugs to have been personally guarded each minute.” Scudiere v. State, 130 Ga. App. 477, 481 (10) (203 SE2d 581) (1973) (officer held drugs in locked box in locked trunk of his car while he ate supper, and crime lab employee kept drugs in his bedroom closet overnight). See also Alfred v. State, 157 Ga. App. 221, 222 (276 SE2d 892) (1981) (officer kept evidence in ziplock plastic bag, in locked briefcase, within locked car trunk for “about a week”). The trial court did not err in admitting the evidence.

Decided May 31, 1995.

Lawrence & Ford, Francis N. Ford, for appellant.

Joseph H. Briley, District Attorney, Wilson B. Mitcham, Jr., Assistant District Attorney, for appellee.

2. Mosely also enumerates as error the trial court’s denial of his motion for mistrial after the State refused to reveal the identity of an informant during the cross-examination of a prosecution witness. Mosely included in his omnibus pretrial motion a request for disclosure of “the existence of any informant who possesses knowledge of any evidence material either to guilt or to punishment in this case.” Because the prosecution had an “open file policy” in this case, the existence of the informant was known or constructively known to Mosely because that information appeared in the State’s file. Moreover, Mosely “made no request for the trial court to conduct a hearing to determine whether the identity of a confidential informant should be revealed pursuant to Moore v. State, 187 Ga. App. 387, 388 (2) (370 SE2d 511) (1988). Accordingly, it was not error for the trial court to fail to conduct such a hearing. There are particular requirements placed upon the defendant to justify identifying or [summoning] the informer. The defendant must ask the trial court for an in-camera examination of the matter.” (Punctuation and emphasis omitted.) State v. Sears, 202 Ga. App. 352, 353 (4) (414 SE2d 494) (1991). Mosely’s request was made after announcing ready for trial, striking a jury, and proceeding through the examination of two witnesses without bringing the request to the trial court’s attention. Therefore, it was untimely.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

       Mosely at best made it difficult for the trial court to consider his request. As the trial court observed, “I’m what you call trapped in this thing. I’m in the goalong on it. . . . But I don’t think it’s a goalong created by me. I think it’s a goalong created by somebody else. But we are like the bug in a pipe now. We’ve got to go forward. Ain’t no way to go back.”


text:
    A95A0785.
    SAMPLES v. THE STATE.
    (460 SE2d 795)
   Smith, Judge.

Willie Samples was charged with three counts of armed robbery, felony obstruction of an officer, and giving a false name to an officer. A jury found him guilty of all charges, but the trial court merged two of the armed robbery counts. Samples’ motion for new trial was denied.

1. The charges stemmed from the robbery of two restaurants. Samples contends the charges relating to the two separate robberies were improperly joined and the trial court erred in denying his motion for severance. We do not agree.

Offenses may be joined for trial when they are based on the same or similar conduct or when they are based on a series of acts that are connected or part of a single scheme or plan. Dingler v. State, 233 Ga. 462, 463 (211 SE2d 752) (1975). When charges have been joined solely on the ground that they are of the same or similar character, severance is mandatory; if they are joined for other permissible reasons, however, the trial court has discretion on the issue of severance. Id. Severance should be granted if it is necessary “to achieve a fair determination of the defendant’s guilt or innocence of each offense.” (Citations and punctuation omitted.) Carter v. State, 192 Ga. App. 726, 727 (4) (386 SE2d 389) (1989).

When the similarity of separate offenses reaches the level of a pattern, it may evidence a single scheme or plan. Johnson v. State, 213 Ga. App. 194 (1) (444 SE2d 334) (1994). In this case, such a scheme is obvious from the details. Both robberies occurred in the early morning hours. In both instances, the robber paid for food with a five-dollar bill, demanded all the money in the register when it was opened to make change, then reached over and grabbed the cash himself. Victims and witnesses to both robberies identified the same wig as the one worn by the robber and the same automatic pistol as the one used. The wig was found in Samples’ father’s house; the gun was turned over to the police by Samples’ stepbrother. Victims of both robberies identified Samples as the robber.

The trial court charged the jury that the two crimes were separate and any belief that Samples was guilty of one should not control their verdict as to the other. The jury was also instructed that the State bore the burden of proving each offense beyond a reasonable doubt. The trial court did not abuse its discretion by denying Samples’ motion to sever the offenses. Johnson, supra, 213 Ga. App. 194.

2. Samples complains of the trial court’s refusal to allow him to question potential jurors about the extent of their political activity. During voir dire, defense counsel propounded the following question: “[A]re any of you . . . active in politics, and by active in politics I would basically mean that you do more than vote?” The trial court prevented the question from being answered, deeming it inappropriate. Samples argues that in so doing, the trial court undermined his effort to pick an impartial jury.

Decided May 31, 1995.

Scott C. Gladstone, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, J. Michael McDaniel, Assistant District Attorneys, for appellee.

(a) The State’s argument that Samples failed to preserve this issue for appellate review is without merit. See Perry v. State, 216 Ga. App. 661, 662 (1) (a) (455 SE2d 607) (1995).

(b) The right to an impartial jury is, of course, of constitutional magnitude. Falsetta v. State, 158 Ga. App. 392, 393 (1) (280 SE2d 411) (1981). Samples, however, stands upon the rights guaranteed him by the statutes of this State. Under Georgia law, counsel is entitled to great latitude in examining prospective jurors, but control of voir dire is within the court’s discretion. Jackson v. State, 209 Ga. App. 217, 220 (6) (433 SE2d 655) (1993). That discretion is limited by OCGA § 15-12-133, which extends to both the defense and the State the absolute right to question jurors regarding certain matters, including their “religious, social, and fraternal connections.” The statute, however, does not enumerate jurors’ political activity.

Samples suggests that when considered in conjunction with other factors, an active political life somehow indicates a pro-prosecution bias that the trial court prevented him from uncovering. The record does not reflect that Samples offered the trial court any authority supporting this argument, however, and he offers none now. His bare assertion that the question was designed to reveal a pro-prosecution bias, without support in logic, common experience, or authority, does not suffice to show an abuse of discretion by the trial court.

3. Samples maintains the trial court erred in allowing certain photographic lineup admonition/photographic identification forms to go out with the jury. His argument that these documents are similar to depositions and dying declarations and constitute prohibited “continuing witnesses” has been rejected by this court several times. See, e.g., Parks v. State, 199 Ga. App. 736, 738-739 (2) (406 SE2d 229) (1991); Kenney v. State, 196 Ga. App. 776, 777 (2) (397 SE2d 131) (1990). We find no error.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


text:
    A95A0623, A95A0713.
    BAEZ v. THE STATE (two cases).
    (458 SE2d 658)
   Birdsong, Presiding Judge.

These two appeals filed by Roberto Baez are from his conviction for trafficking in cocaine and the denial of his motion for supersedeas bond. Held:

1. As to Case No. A95A0713, the trial court did not err in denying a supersedeas bond. See OCGA § 17-6-1 (g).

2. Appellant contends the search warrant obtained for the apartment rented by him on Stoneybrook Road in Forest Park was not supported by probable cause.

The affidavit executed by Riverdale narcotics agent Knowles to obtain the search warrant for the Stoneybrook Road apartment and a 1994 Mitsubishi Expo, TJW988, states that within the past 15 days the affiant learned from federal Agent Moss that Roberto Baez, a Cuban national, was living at Canterbury Drive in Jonesboro and was allegedly trafficking in cocaine and illegal weapons, automatic assault rifles, semi-automatic assault rifles and semi-automatic pistols; that a concerned citizen who lives near Canterbury Drive reported suspicious activity in that Baez made frequent trips to Miami and on returning would remove large black bags from the car and take them into that house; the concerned citizen reported that on Wednesday, January 19, 1994 an altercation occurred between Baez and his wife Barbara Rodriguez but police were not called because Rodriguez is on parole for trafficking in cocaine; and that Baez left the residence and was staying somewhere else in Atlanta. The affiant stated that independent investigation revealed Barbara Rodriguez was convicted in Henry County in 1988 for trafficking in cocaine and Roberto Baez’s criminal history included armed robbery, kidnapping, weapons offenses and drug-related offenses. The affiant stated that on Friday, January 21,1994 the concerned citizen advised that Baez had gone to Miami “on a trip” and was due to return at any time; that upon this information and independent surveillance a search warrant for the house was executed on Saturday, January 22, 1994 and a small amount of cocaine and a revolver were seized. The affiant stated that a cooperative witness at the house advised him Baez left Wednesday, January 19, 1994 to go to Miami; that Baez was with a black female named Cynthia Oliver; that Oliver lives in an apartment that is under the control of Baez; that Baez gave to the cooperative witness the address of that apartment which was also printed on a GCTV cable bill as 320 Fairburn Road, Apt. T-6; that the confidential witness advised that Baez uses that apartment as a “stash” house for cocaine and weapons and that Baez rented a green car from a rental agency in the Greenbriar Mall area of southwest Atlanta. The affiant stated that the cooperative witness was contacted by Baez on Saturday, January 22, 1994 from Miami by a collect telephone call and was advised that Baez had picked up some cocaine and was waiting on the other part and would depart Miami on Sunday, January 23, 1994 and would return to Atlanta. The affiant checked with McFrugal Car Rental which advised that Baez rented a 1994 Mitsubishi Expo van, green, tag no. TJW988, on January 17, 1994 on Campbellton Rd., due back January 24, 1994; that Baez was with a black female, Cynthia Oliver, who lives at 320 Fairburn Rd., Apt. T-6, Atlanta, Fulton County; that according to the apartment management, Oliver was on the lease at Apt. T-6; that Baez used this address when he rented the car in which he and Oliver traveled to Miami. On January 25, 1994 the cooperative witness advised that Baez had returned from Miami and was staying at Oliver’s apartment on Fairburn Road; that Baez told the cooperative witness he had acquired a quantity of cocaine and it would take him a couple of days to get rid of it. The affiant checked with the McFrugal Car Rental manager who said Baez returned the car the morning on which this affidavit was executed, January 25, 1994, and rented the same car again for another day. The cooperative witness advised that Baez had rented another residence in the area and would let no one know the location. The affiant stated that on January 25, 1994 at about 4:00 p.m. agents saw the 1994 Mitsubishi at the residence on Canterbury Dr., Jonesboro, Clayton County. The vehicle was followed into Riverdale and was stopped by police agents, and Baez refused consent to search. At 4:50 p.m. Special Agent Hudson brought Buster, a dog trained in the detection of marijuana, cocaine and crack cocaine; Buster was led around the vehicle and he alerted on all four doors of the vehicle. Documentation was found of a lease and water deposit for a residence at 1031 Stoneybrook Road, Forest Park, Clayton County, in the name of Roberto Baez. According to affiant’s training and experience, the affiant believed the following items would be at 1031 Stoneybrook Road, Forest Park, Clayton County and the 1994 Mitsubishi Expo, Georgia tag TJW988: illegal weapons, cocaine packing implements, documentation about the sale and distribution of cocaine, and proceeds, assets and items indicative of the crime of selling and distributing cocaine.

The magistrate issued a search warrant for the Stoneybrook Road apartment and the Mitsubishi Expo. The search was executed at about 8:15 p.m. on the same day. Contraband was found in the vehicle and in the apartment. The female with Baez was identified as Sonya Thomas.

At the hearing on motion to suppress, Agent Knowles testified he did not personally know the concerned citizen but he knew who “they” were. He testified in detail as to how he corroborated information from the federal agent and the cooperative witness, and that after the search of Baez’ Canterbury Road residence the cooperative witness (who was Barbara Rodriguez) told him that in addition to the Forest Park apartment, Baez possibly had another residence for which he had a lease and which he and Oliver occupied and where he was possibly holding contraband. He further testified that he was not at the food mart when Baez was detained but was surveilling other locations in connection with Baez, but that he directed other agents to stop Baez because of his suspicion that Baez was carrying cocaine in the vehicle, and in a consensual search of Sonya Thomas’ purse, those agents found a water bill and a lease signed by Baez for the Stoneybrook Road apartment.

On a motion to suppress, the trial judge, sitting as trier of fact, hears the evidence; his findings are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Mann v. State, 196 Ga. App. 730 (3) (397 SE2d 17). The evidence amply supports the finding of probable cause to support the search warrant for the Stoneybrook Road apartment and the Mitsubishi van.

We reject appellant’s contention that the “concerned citizen” was an anonymous tipster who could not be elevated to the status of a concerned citizen entitled “ ‘to the preferred status regarding credibility concomitant with that title.’ ” Davis v. State, 214 Ga. App. 36, 37 (447 SE2d 68); cf. Christopher v. State, 190 Ga. App. 393 (1) (379 SE2d 205). Agent Knowles testified that although he did not personally know the concerned citizen, he knew who “they” were. Thus, that informant was not anonymous.

We also reject appellant’s contention that there was no corroboration of the concerned citizen’s information. The evidence shows information provided by the concerned citizen was independently corroborated by the police. See Stanley v. State, 213 Ga. App. 95 (443 SE2d 633). Both the concerned citizen and the cooperative witness provided information sufficient even to predict Baez’ behavior, exactly as it occurred. See VonLinsowe v. State, 213 Ga. App. 619, 621 (445 SE2d 371). This information from two sources, independently corroborated, was more than sufficient to authorize the initial Terry stop. Id. at 620. The police who stopped Baez were engaged in a common investigation with Agent Knowles and were authorized to act on the information supplied by him to accomplish the Terry stop (Parker v. State, 161 Ga. App. 37, 39 (288 SE2d 852)), and he was authorized to rely on information supplied by them to establish a totality of circumstances amounting to probable cause for the issuance of the search warrant.

Although appellant abandons argument as to the four-hour detention of Baez after he was stopped at the food mart while the search warrant was obtained and executed, we note that assuming this detention ripened to an arrest, that arrest was not without probable cause in view of the drug dog’s “alert” to the doors of the vehicle driven by Baez from Miami, and in view of the lease document found in his female companion’s purse which showed that a third residence in the same area had been leased by Baez, thus conforming to the drug courier’s habitual conduct described by Agent Knowles. Further, evidence at trial showed that the police did not stop Baez but pulled up behind him at the food mart as he was exiting his vehicle and as his companion, Sonya Thomas, was walking toward him with a shopping cart laden with dog food. Moreover, the search was not the fruit of that detention but was the result of a lawful search warrant which was supported by probable cause and was issued on the basis of a complete police investigation corroborating detailed information of two informants and a totality of the circumstances showing probable cause for a search. Cichetti v. State, 181 Ga. App. 272, 273 (351 SE2d 707); see Claffey v. State, 211 Ga. App. 335 (439 SE2d 516).

Our decisions and those of the United States Supreme Court have adopted the “ ‘totality of circumstances’ ” analysis used in Illinois v. Gates, 462 U. S. 213, 214 (103 SC 2317, 76 LE2d 527), whereby the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823). In dealing with probable cause we deal with probabilities; they are not technical, but are the factual and practical considerations of everyday life on which reasonable and prudent men act. Id.; see Strauss v. Stynchcombe, 224 Ga. 859, 865 (165 SE2d 302), quoting Brinegar v. United States, 338 U. S. 160 (69 SC 1302, 93 LE 1879). The magistrate had “a substantial basis” for concluding that probable cause existed, in the totality of all the circumstances.

Our duty on appeal is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Brady v. State, 212 Ga. App. 853, 854 (443 SE2d 522). We conclude that he did and that none of appellant’s objections is meritorious.

3. We have reviewed the evidence in the light most favorable to the verdict and we find it sufficient to persuade a rational trier of fact of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). It follows that the denial of directed verdict of acquittal could not have been error. The totality of the evidence construed in favor of the verdict does not support a conclusion that Baez had no connection to the apartment which he leased and where Sonya Thomas evidently lived. The evidence shows Baez leased and prepared to occupy the Stoneybrook Road apartment on or about January 18, 1994, the day before he rented the Mitsubishi van and went to Miami. In the apartment on the day after he returned, January 25, 1994, were found cocaine, a set of digital scales commonly used to measure drugs, a .45 caliber handgun containing black talon bullets, and nude photos of Sonya Thomas in an album inscribed “Sonya and Roberto in Miami, New Years’ weekend 94.” There was ample evidence authorizing a conclusion that Baez occupied and controlled the apartment and its contents.

Decided April 20, 1995

Reconsiderations denied June 1, 1995

Joseph M. Todd, for appellant.

Roberto Baez, pro se.

Robert E. Keller, District Attorney, Nancy Trehub, Assistant District Attorney, for appellee.

4. We find no error in the court’s charge as alleged. The trial court did not make an improper comment as to why appellant was under surveillance, but instructed the jury that such question was not an issue in the case. Appellant fails to explain why he believes the court left an “erroneous impression” in its charge on possession; and appellant failed to cite legal authority for his contentions that the charge was error. He thus abandons that contention. Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A0738, A95A0953.
    ATLANTA COUNTRY CLUB, INC. v. SMITH; and vice versa.
    (458 SE2d 136)
   Birdsong, Presiding Judge.

Following our grant of its application for interlocutory appeal, the Atlanta Country Club appeals the denial of its motion for summary judgment in this suit filed by former member Mark A. Smith III for damages for wrongful expulsion. Smith was expelled from membership in July 1989 on grounds he violated club by-laws by issuing three dishonored checks to the club in a 12-month period. Smith filed suit for injunction and damages on August 16, 1989. On August 21, 1989, he dismissed that suit without prejudice.

Smith filed the present suit in June 1993, seeking damages. The club, a nonprofit corporation, contends this suit is governed by OCGA § 14-3-621 (4), effective July 1991: “Any proceeding challenging an expulsion, suspension, or termination, including a proceeding in which defective notice is alleged, must be commenced within one year after the effective date of the expulsion, suspension or termination.” Held:

1. The one-year statute of limitation for suits against nonprofit corporations for expulsion, suspension or termination of membership bars a suit filed in 1993 for a 1989 expulsion. Appellee had no vested rights in the procedure which existed prior to enactment of this statute in 1991. See Hunter v. Johnson, 259 Ga. 21 (3) (376 SE2d 371). This is not a “retroactive” application of the statute of limitation because the suit was filed after the effective date of the statutory amendment. Mansfield v. Pannell, 194 Ga. App. 549, 550 (390 SE2d 913).

Appellee contends, however, that the “renewal statute” allows refiling of a dismissed suit “within the original applicable period of limitations.” OCGA § 9-2-61 (a). He contends OCGA § 9-2-61 establishes a vested right to renew his claims “within the [original] . . . statute of limitations” (id.) for his tort and breach of contract claims, those being four and six years. This contention takes the language of the statute out of context. OCGA § 9-2-61 (a) provides that a dismissed suit may be recommenced “either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later.” The term “original statute of limitations” thus refers to the statute of limitation which normally applies to a cause of action, as opposed to the extended right to file a renewal up to six months later. If an amended statute of limitation is applied to a cause of action, this becomes by operation of law the “original” statute of limitation within the meaning of OCGA § 9-2-61 (a). The term “original statute of limitations” in the renewal statute was not intended to repeal a statute of limitation which would otherwise apply, for the legislature could not have intended to give expanded rights to persons dismissing and refiling a suit which other plaintiffs do not have. The purpose of the renewal statute is to save a case from expiration of the statute of limitation if it was filed within the limitation and renewed within six months after expiration of the limitation. See Chinn v. Maxwell, 170 Ga. App. 85 (316 SE2d 546). The renewal statute does not change the legal statute of limitation; it merely treats a properly renewed action as standing on the same footing as to limitation with the original case. Stevens v. Faa’s Florist, 169 Ga. App. 189 (311 SE2d 856). Because a plaintiff has no vested right in a statute of limitation which existed at the time of his alleged injury, as against a newly enacted limitation {Hunter, supra), he does not acquire one merely by virtue of having once filed a suit within the statute of limitation and dismissed it. The application of the one-year statute of limitation made July 1990 the expiration date of the “original” statute of limitation; because appellee had filed a suit within one year and dismissed it, he could have filed it again up to six months after July 1990, but this suit was filed in June 1993, three years and eleven months after he was expelled from the appellant nonprofit organization, long after the new statute was enacted making the statute of limitation one year. The suit is barred.

Decided May 3, 1995

Reconsiderations denied June 1, 1995

Awtrey & Parker, Toby B. Prodgers, for appellant.

Mark A. Smith III, pro se.

It is thus unnecessary to address the parties’ remaining contentions, except to note that disciplinary matters pertaining to members of nonprofit corporations proceed as a matter of contract to which the principles of constitutional law do not apply. See Bartley v. Augusta Country Club, 254 Ga. 144 (326 SE2d 442).

2. As to Smith’s cross-appeal (A95A0953), since the Atlanta Country Club was entitled to summary judgment for expiration of the statute of limitation, Smith’s contention that he was entitled to summary judgment on his claims is moot.

Judgments reversed.

Johnson and Smith, JJ., concur.


author: Andrews, Judge.

text:
    A93A1986.
    TALLEY v. MATHIS et al.
    (457 SE2d 715)
    Decided June 1, 1995.
    Motion to dismiss. Floyd Superior Court. Before Judge Salmon.

      Jones, Byington, Durham & Payne, Frank H. Jones, Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., for appellant.

      Brinson, Askew, Berry, Seigler, Richardson & Davis, C. King Askew, Mark M. J. Webb, Shaw, Maddox, Graham, Monk & Boling, C. Wade Monk II, Smith, Price & Wright, S. David Smith, Jr., for appellees.
   Andrews, Judge.

The Supreme Court having reversed the judgment of this court in Talley v. Mathis, 212 Ga. App. 330 (441 SE2d 854) (1994), that judgment is hereby vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

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


text:
    A95A0396.
    GIGNILLIAT v. GENTRY.
    (457 SE2d 833)
   Andrews, Judge.

This court granted Gignilliat’s application to appeal the Glynn County Superior Court’s order holding him in contempt. We reverse.

Gignilliat and Gentry were divorced in 1988 in Hall County. Custody of the two minor sons of the couple was placed in Gentry, the mother. Gentry remarried and moved to Glynn County with the boys in August 1989.

In Glynn County Superior Court Case No. 90-02617, Gignilliat filed an action seeking a change in custody of the boys and a modification of visitation. The superior court transferred the case to juvenile court on January 4, 1991 “for plenary disposition of all issues presented by the pleadings in the action, with the exception of [Gentry’s] counterclaim for contempt, which is hereby dismissed without prejudice for refiling in the Superior Court of Hall County, Georgia.”

On March 14, 1991, the juvenile court entered its order changing the custody of the two boys to Gignilliat. Paragraph 6 of that order provided that as long as Gignilliat resided in Hall County, he “shall pay for the children to make four (4) trips each year to the Glynn County, Georgia area . . . and back to the Hall County, Georgia, area. . . . [He] shall have the right to decide which four round trips each year he will pay for. Two of the trips provided by [him] shall be by round trip air transportation and the mode of transportation for the other two trips shall be selected by [him] at his option.” He was required to give Gentry two weeks notice of the impending trips.

In July 1993, Gignilliat filed Glynn County Superior Court Case No. 93-00946 in which he sought support payments from Gentry for the children.

While Case No. 93-00946 was still pending, in June 1994, Gentry filed a separate motion for contempt against Gignilliat in Glynn County Superior Court. This was given Case No. 94-01119 and alleged that Gignilliat had not complied with the provisions of the juvenile court’s order relating to providing four trips a year for the boys for 1992, 1993, and 1994. Gignilliat filed a motion to dismiss this contempt action, contending that only the juvenile court could entertain motions for contempt of its order. A hearing was held by the superior court on June 24, 1994, which was meant to resolve the pending issues in Cases Nos. 93-00946 and 94-01119. The record reflects that most of the issues in 93-00946 had been tentatively resolved by agreement at the time of the hearing.

On July 18, 1994, a consent judgment was filed in Case No. 93-00946. It stated that its paragraph 10 “entirely supersedes and replaces the provisions of numbered paragraph 6 of the Glynn County Juvenile Court Order.” Paragraph 10 provided that Gignilliat “shall bear the expense, at whatever mode of transportation [he] in his discretion, deems appropriate, for the children to visit the [mother] at her home in the Glynn County, Georgia area, one time during each quarter of each calendar year when and as specified by the defendant [mother], beginning with the effective date of this Order.” (The italicized portion was added to the proposed order by the court.)

On August 15, 1994, the order here appealed was entered in Case No. 94-01119. In it, the court stated that it “adopts the Order of the Juvenile Court of Glynn County ... as this Court’s Order and gives it full force and effect.” The order concluded, without citation of authority, that transferring the case to juvenile court did not deprive the superior court of jurisdiction to hear contempt claims involving the custody/visitation provisions. The court found Gignilliat in contempt of the juvenile court order for not providing each child with two round trip plane tickets “for each of the years since entry of the Order, to wit: 1991, 1992, 1993 and the first six (6) months of 1994.” The order also directed that Gignilliat pay $1,499 as a fine for contempt, which the court concluded was the value of tickets not purchased by him. There was no evidence, however, that Gentry had expended any money on airline tickets to provide transportation to the boys.

Although twelve enumerations of error are presented by Gignilliat, we need only consider four, the first three and number twelve.

1. The first three enumerations deal with the superior court’s failure to dismiss the contempt petition for lack of jurisdiction, incorporating the juvenile order into its own, and modifying the juvenile court order.

OCGA § 15-11-6 (b) provides that “[c]ourts of record, in handling divorce, alimony, or habeas corpus cases involving the custody of a child or children, may transfer the question of the determination of custody and support to the juvenile court for investigation and a report back to the superior court or for investigation and determination. If the referral is for investigation and determination, then the juvenile court shall proceed to handle the matter in the same manner as though the action originated under this article, in compliance with the order of the superior court.” (Emphasis supplied.)

The transfer here by the superior court to the juvenile court was for “determination,” not for making a recommendation back to the superior court. Under OCGA § 15-11-62, the juvenile court may punish for contempt of court “for disobeying an order of the court. . . .”

“The theory upon which the right of a court to punish for contempt is, that ‘Every court has power to compel obedience to its judgments, orders, and processes.’ Gaston v. Shunk Plow Co., 161 Ga. 287, 298 (130 S.E. 580). It necessarily follows that ‘Only the court offended . . . has power to punish for the contempt, or to entertain proceedings to that end.’ In re Fite, 11 Ga. App. 665 (3) (76 S.E. 397).” Goodrum v. Goodrum, 202 Ga. 135 (4) (42 SE2d 450) (1947); Mathis v. Corrugated Gear, 263 Ga. 419, 420 (1) (435 SE2d 209) (1993).

Decided June 1, 1995.

Rountree & Souther, George M. Rountree, for appellant.

Hollé H. Weiss-Friedman, for appellee.

Here, the only order in place at the time of the hearing conducted by the superior court on “contempt” issues was that of the juvenile court. Therefore, the superior court had no jurisdiction to consider any motion for contempt of the juvenile court order. Mathis, supra; Goodrum, supra; In re Fite, supra.

Therefore, the order entered in Case No. 94-01119 is a nullity.

We need not further consider the second and third enumerations.

2. It likewise follows that the portion of the superior court order directing Gignilliat to pay Gentry’s attorney fees is also a nullity.

3. The remaining enumerations need not be addressed.

Judgment reversed.

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

       While a contempt action may be brought as a counterclaim in a superior court which has acquired jurisdiction and venue to modify a divorce and alimony decree, but which did not render that original decree, this is not the situation here. Buckholts v. Buckholts, 251 Ga. 58, 61 (302 SE2d 676) (1983); see Davis v. Davis, 259 Ga. 151 (377 SE2d 850) (1989).

       The provision of attorney fees in a divorce/custody proceeding is considered a type of temporary alimony, not applicable here. Sullivan v. Sullivan, 224 Ga. 679 (1) (164 SE2d 130) (1968).


text:
    A95A0471.
    THOMAS v. DOUGLAS COUNTY et al.
    (457 SE2d 835)
   Andrews, Judge.

We granted L. W. Thomas’ petition for discretionary review to review the superior court’s order dismissing his petition for a writ of certiorari from an order of the Douglas County magistrate court.

On March 9, 1992, an accusation was filed against Thomas charging him with 730 violations of Douglas County’s littering ordinance, one for each day he allowed litter to remain on his property over a two-year period. In an April 17, 1992 order, the magistrate court found Thomas in violation of the ordinance. The court found that Thomas had admitted to the charges contained in the accusation and imposed a $50 fine per count, for a total of $36,000, plus surcharge, costs and attorney fees.

Nevertheless, the court gave Thomas six months to bring his property into compliance with the ordinance and set a compliance hearing for October 15, 1992. The order provided that if full compliance was achieved by October 15, half of the amount of the fine and surcharge would be suspended. If the magistrate found that the property was not in full compliance, the court would impose an additional jail term of one day per each of the 730 counts.

On May 18, 1992, Thomas filed a pro se appeal of the April 17 order. Douglas County filed a motion to dismiss this appeal and for sanctions. On June 25, 1992, the court held a hearing on Douglas County’s motion to dismiss. At this hearing, the court dismissed Thomas’ appeal on the grounds that a writ of certiorari is the appropriate procedure for reviewing a decision of the magistrate court as to ordinance violations.

Thomas then filed a motion to amend, modify, and alter sentence and motion in arrest of judgment or, in the alternative, motion for new trial. Thomas apparently argued this motion at the October 15 hearing and the court denied it at that time.

On October 15, after holding the compliance hearing, the court entered an order finding Thomas to be in 90 percent compliance with its April 17 order. It further directed that its April 17 order be enforced, that Thomas pay an $18,250 fine, and that no jail sentence be imposed. The court amended its order on October 20 at the suggestion of Thomas’ attorney, to change some of the wording in the order but not the substance.

On October 29, 1992, Thomas filed a petition for writ of certiorari of both the October 15 and October 20 orders. He argued that the magistrate court erred in denying his motion to amend, modify and alter the sentence and motion in arrest of judgment and that the sentence imposed by the October 15 order was improper.

On July 2, 1994, the superior court dismissed the petition on the basis that it was untimely. The court concluded that the petition was not filed within 30 days of the date of the April 17 order and, therefore, all issues resolved by that order were final. The court further concluded that the petition raised no enumerations of error as to the October 15 order.

Thomas then filed and was granted the instant petition for discretionary review of the superior court’s order dismissing his petition for writ of certiorari. In this petition, Thomas brings three enumerations of error.

1. The first two enumerations of error contend that the superior court erred in dismissing the petition for certiorari because it incorrectly concluded that the petition was not timely as to the April 17 order and failed to raise any enumeration for review of the October 15 order. Thomas argues that the superior court erred in dismissing his petition because the magistrate court retained jurisdiction over the matter pending the compliance hearing and thus no final, appealable order was entered until after the hearing on October 15. Further, Thomas argues that the court’s imposition of fine and denial of his motions at the October 15 hearing did raise an enumeration for review in the October 15 order.

Citing OCGA § 5-4-6 (a), Thomas argues that writs must be applied for within 30 days after the final determination of a case and, here, the order of final sentence was not imposed until after the compliance hearing on October 15, 1992. He contends that the April 17 order was not final and that certiorari did not lie to correct the errors in that order. Moreover, Thomas argues that even if the attack of the April 17 order through the petition was improper, the superior court erred in dismissing the petition insofar as it challenged the denial of his motions and imposition of the modified sentence.

Douglas County argues that the April order was the final order and that neither the order of October 15 nor that of October 20 found Thomas guilty of any offense or sentenced him to any particular punishment.

Generally, an order is final and appealable when it leaves no issues remaining to be resolved, constitutes the court’s final ruling on the merits of the action, and leaves the parties with no further recourse in the trial court. Vurgess v. State, 187 Ga. App. 700 (1) (371 SE2d 191) (1988). Although the magistrate court’s April 17 order found Thomas in violation of the littering ordinance, it clearly did not impose a final sentence on him until October 15, after the compliance hearing. The matter was thus not fully resolved at the time of the April 17 order. In any event, because Thomas’ petition for a writ of certiorari claims the fine imposed upon him exceeds the maximum fine allowed for violation of a county ordinance, which fine was not imposed until the October 15 order, it appears that the superior court’s dismissal of the October 29 petition on the grounds that it was untimely and raised no issues as to the October 15 order was erroneous.

2. Thomas’ remaining enumeration of error states that the superior court erred in dismissing the petition for certiorari when it erroneously held that the constitutionality of the statutes on which the conviction and sentence were based was not subject to review by a petition for writ of certiorari. This is not correct. The superior court’s order dismissing Thomas’ petition merely stated that since a petition for writ of certiorari was not filed within 30 days of the April 17 order, then all issues resolved by that order were final. This included the validity of the ordinance under which Thomas was sentenced. Therefore, because of our conclusion above, we need not address Thomas’ remaining enumeration of error.

Judgment reversed.

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

Decided June 1, 1995.

Kirwan, Goger, Chesin & Parks, Susan M. Garrett, for appellant.

William J. Linkous III, Edwards & McLeod, Robert B. Edwards, for appellees.


author: Pope, Presiding Judge.

text:
    A95A0547.
    In re CONNELL.
    (457 SE2d 832)
   Pope, Presiding Judge.

The Carmicals filed a petition in the DeKalb County Probate Court seeking the appointment of a guardian over the person and property of Mrs. Carmical’s mother, Mrs. Connell. The probate court appointed counsel to represent Mrs. Connell and to serve as her guardian ad litem. Subsequently, Mrs. Connell privately retained her own counsel. Before any hearing, the Carmicals filed a motion to dismiss their guardianship petition. The probate court granted the Carmicals’ motion. Thereafter, Mrs. Connell filed a motion for costs pursuant to OCGA § 29-5-13 (a) (2). Therein, she requested that the probate court order the Carmicals to pay the costs and expenses associated with the filing of their petition, including the fees of the court-appointed counsel and guardian ad litem. Mrs. Connell appeals from the probate court’s denial of her motion for costs. We reverse.

The Carmicals argue that they are not responsible for any costs or expenses in this case because they dismissed their petition before there was an adjudication on the merits as to Mrs. Connell’s mental capacity. We reject this argument. Under OCGA § 29-5-13 (a) (2), the expenses associated with the filing of a petition for guardianship shall be borne “[b]y the petitioner[s] if no guardianship is ordered. . . .” This is true regardless of whether an adjudication on the merits of the case takes place or not. To hold otherwise would be to encourage the filing of frivolous guardianship petitions. Thus, we conclude that the probate court erred in failing to order the Carmicals to pay the expenses associated with the filing of their petition.

We note that the expenses referred to above “are not expenses of litigation but, rather, are tantamount to ‘costs’ incurred in a judicial proceeding brought pursuant to OCGA Ch. 29-5. [Cits.]” In re Olliff, 184 Ga. App. 846, 847 (363 SE2d 158) (1987). Such costs or expenses do not include the fees of Mrs. Connell’s privately retained attorney. Id. at 847-848. They do, however, include, among other things, the actual expenses of her court-appointed attorney, and her guardian ad litem’s fee. Id. at 847. See OCGA § 29-5-13 (e) and (f).

Consequently, we reverse the probate court’s denial of Mrs. Connell’s motion for costs, and we remand this case to the probate court for a determination as to the amount of costs and expenses for which the Carmicals are responsible.

Decided June 1, 1995.

David Paul Pollan, for appellant.

C. Alan Mullinax, Karen S. Byers, for appellee.

Judgment reversed and remanded with instruction.

Beasley, C. J., and Ruffin, J., concur.


text:
    A95A0284.
    DISMUKE v. ABBOTT.
    (457 SE2d 837)
   Birdsong, Presiding Judge.

This is a dispute over trust accounts as defined in OCGA § 7-1-810 (14), and it is a case of first impression.

In February 1988, R. T. Dismuke and his wife Greta Dismuke each purchased savings certificates and set up a trust account. Each trust account was designated on its signature card as a “Revocable Trust.” The revocable trust account set up by R. T. Dismuke named himself as trustee and named Mrs. Dismuke as beneficiary. The revocable trust account set up by Mrs. Dismuke named herself as trustee and named R. T. as beneficiary. Both revocable trust accounts were to mature in February 1989.

R. T. Dismuke died in August 1988. The funds in the trust account naming him trustee were paid to Mrs. Dismuke as beneficiary. When the trust account of which Mrs. Dismuke was trustee matured, she exercised possession of it.

Mrs. Dismuke died in 1991. The estate of R. T. Dismuke, through administratrix Diane Dismuke Abbott, filed this declaratory judgment action, claiming the funds in both trust accounts. Defendant Robert Dismuke, executor of Mrs. Dismuke’s estate, contends the funds of both trust accounts passed to Mrs. Dismuke and thence into her estate. Robert Dismuke filed a motion for summary judgment. Diane D. Abbott filed an affidavit saying she is the daughter of R. T. and Greta Dismuke, that R. T. established some certificates of deposit; that he “also stated to me that he opened other accounts solely for purposes of maintaining insurability of the funds on deposit”; and that “the only deposits my father had, other than joint certificates of deposit, were the trust accounts. . . . Therefore, they would have to be the accounts set up for purposes of insurability.” She thus contends R. T. Dismuke set up both trust accounts only to insure the funds and with the intent that they pass into his estate and not to Mrs. Dismuke and her estate.

The trial court denied Robert Dismuke’s motion for summary judgment. We granted this interlocutory appeal. Held:

1. Diane D. Abbott contends it is undisputed the funds in these trust accounts came from R. T. Dismuke, that Robert Dismuke had the burden to show that R. T. intended these accounts to be survivorship accounts, and that this court has previously upheld findings of “contrary intent” as to multi-party accounts. See Hopkins v. Moore, 207 Ga. App. 383 (427 SE2d 853); Williamson v. Echols, 205 Ga. App. 453 (422 SE2d 329); Turner v. Mikell, 195 Ga. App. 766 (395 SE2d 20); Myers v. Myers, 195 Ga. App. 529 (394 SE2d 374). None of those cases, however, involved trust accounts.

Trust accounts are distinctly different from other multi-party accounts. See OCGA § 7-1-812 (a), (b) and (c). A trust account is a trust of which there is no subject other than the funds on deposit in an account established in the name of a trustee for a beneficiary; the relationship is established by the form of the account and the deposit agreement. OCGA § 7-1-810 (14). OCGA § 7-1-812 (c) provides: “Unless a contrary intent is manifested by the terms of the . . . deposit agreement or there is other clear and convincing evidence of an irrevocable trust, a trust account belongs beneficially to the trustee during his lifetime. ... If there is an irrevocable trust, the account belongs beneficially to the beneficiary.” No question arises in this case as to the intent of the founders of these accounts. Both trust accounts were designated “Revocable Trusts.” According to the express terms of § 7-1-812 (c), both revocable trust accounts belonged beneficially to the respective trustees during their lifetimes; each trust account could be revoked by its trustee during his or her lifetime. As these were not irrevocable trust accounts, they were not accounts which “[belonged] beneficially to the beneficiary.” OCGA § 7-1-812 (c).

R. T. Dismuke did not revoke the trust of which he was trustee, so on his death the funds passed to the beneficiary, Mrs. Dismuke. But Mrs. Dismuke, during her lifetime, did revoke the trust of which she was trustee. These results were exactly as provided by law for a revocable trust. No “contrary intent” was manifested by the terms of the accounts or deposit agreements and there is no “clear and convincing evidence” that an irrevocable trust was intended. OCGA § 7-1-812 (c).

The terms “revocable” and “irrevocable” used on the form of the account or the deposit agreement are terms of particular significance; those terms govern the relationship. OCGA § 7-1-810 (14). When the founder of a trust account has specified its form, he has formally expressed his intent. To allow that formally expressed intent to be refuted merely by another’s affidavit that the founder said something contradictory would be improper. To constitute clear and convincing evidence of a contrary intent, such a charge would have to be made by evidence of equal stature and nature to the formality with which the founder designated the account. To say otherwise would defeat the law of trust accounts and would make every designation of a trust account uncertain. The affidavit offered by plaintiff Diane D. Abbott is not “clear and convincing” evidence of an irrevocable trust. It is ordinary hearsay; it is self-serving, and it contradicts both founders’ unequivocal designation of these accounts as “Revocable Trusts.”

2. Even if it were assumed that R. T. Dismuke was the source of these funds and that he set up both “Revocable Trust” accounts for purposes of insurability, such facts do not contradict the conclusion that he intended the trustee’s intent to control each account in accordance with the statutory scheme, and that by designating these as “Revocable Trusts” he intended his wife to have ownership rights during her lifetime in the revocable trust of which he named her trustee (OCGA § 7-1-812 (c)) and to have survivorship interest in the trust of which he was trustee, unless he revoked it during his lifetime.

3. Abbott contends that even if the account of which R. T. was trustee passed on his death to Mrs. Dismuke, the account of which Mrs. Dismuke was trustee and R. T. was beneficiary passed into R. T.’s estate on his death. Abbott says § 7-1-813 (c), which gives the funds to the beneficiary on the death of the trustee, applies only if the trustee dies first, and the beneficiary (R. T.) died first; Abbott then says “[i]n other cases” (OCGA § 7-1-813 (d)) the death of a party to a multi-party account has no effect on beneficial ownership of the account other than transfer of the rights of the decedent as part of his estate. In other words, Abbott says Mrs. Dismuke did not have the beneficial ownership of the revocable trust of which she was trustee.

This strained reasoning is not correct. It contradicts and ignores § 7-1-812 (c) which gives the rights of beneficial ownership to Mrs. Dismuke as trustee of a “Revocable Trust,” including the right to revoke the trust account. Contrary to that Code section, Abbott’s theory would give beneficial ownership of the trust to the beneficiary even though this was not an irrevocable trust.

Under the standards of summary judgment (see Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474)), no genuine issue of material fact remains. The form of the deposit agreement of these accounts unequivocally provides that these are “Revocable Trusts,” and no clear and convincing evidence of a contrary intent has been proposed. The trial court erred in denying summary judgment to defendant Robert Dismuke.

Judgment reversed.

Johnson and Smith, JJ., concur.

Decided June 2, 1995

Mills & Chasteen, P. C., Ben B. Mills, Jr., for appellant.

Solomon & Edgar, William J. Edgar, for appellee.


text:
    A95A0995.
    SINKFIELD v. THE STATE.
    (458 SE2d 664)
   Birdsong, Presiding Judge.

Damon Bernard Sinkfield appeals the grant of a mistrial to the State in his trial for the murder of James Gregory Holiday and other offenses including carrying a weapon on school property; he appeals the denial of his plea of former jeopardy based on an erroneous grant of mistrial without “manifest necessity” under Haynes v. State, 245 Ga. 817, 819 (268 SE2d 325), citing United States v. Dinitz, 424 U. S. 600, 606-607 (II) (96 SC 1075, 47 LE2d 267); and see Foody v. State, 205 Ga. App. 666 (423 SE2d 423).

The trial court granted a mistrial to the State following defense counsel’s effort to impeach a State’s witness with the criminal conviction records of another person by the same name. The witness, Frederick Coleman, testified that about two weeks before the murder, he saw an incident at a drive-in restaurant in which appellant, riding by in a car, shot at the victim after a dispute. On cross-examination defense counsel produced a certified copy of an accusation, plea and sentence of “Frederick Coleman” for the offense of felony theft by taking and false report of a crime. The witness testified that he “might have been” convicted of those offenses, but he did not recall. The witness then denied the signature on the plea was his. He was asked if he had been before Judge Isom in January 1993; he said “No, not that I recall” and that he had never been on probation, but he volunteered, “I have been going to court for aggravated assault, and I took that to trial, that’s the court I’ve been going to, and I beat that about two months ago. I took a trial.” The witness again denied the signature on the conviction documents was his and volunteered that he had been on probation as a juvenile. He was asked about his knowledge of probation officers, and said, “I have never seen a probation officer in Clayton County.” The State objected to this questioning unless defense counsel gave evidence that this is the same “Frederick Coleman.” Defense counsel asked whether he was ever convicted of a crime, and he responded that he “never got convicted of a crime here in Clayton County.” The State then objected and moved for mistrial on grounds that the attempt to impeach the witness with the criminal records of another person had resulted in the admission of additional evidence which was not admissible to impeach this witness. The trial court reviewed the testimony and concluded that corrective instruction would not cure the error and prejudice. Held:

The grant of mistrial was not error. As the State put it, a witness gave “crucial” testimony that in prior conduct appellant had discharged a firearm at the victim, and this witness had then been “[dragged] through the mud for . . . no reason.” The State did not contend defense counsel’s mistake in the identity of the witness was intentional, but the State urged that it could have been avoided. We agree that the witness was an important witness for the State and the trial court did not abuse its discretion in determining that the damage done to his character could not be corrected. Appellant contends this witness as to prior conduct between the parties was not a significant witness in view of the State’s evidence of guilt against appellant for the murder itself, but this point is not well taken. Appellant has pled not guilty to murder and maintains his innocence; this witness’ evidence may remove a reasonable doubt as to the elements of murder in the jury’s judgment, and we will not undertake to speculate what evidence the jury may deem significant.

The trial court’s declaration of a mistrial over defendant’s objection is subject to stringent limitations. Retrial is permissible only if a “manifest necessity” existed for the declaration of mistrial, lest the ends of public justice be defeated. The defendant’s right to have his trial completed by a particular tribunal is not absolute but is weighed against the public’s right to a fair trial, and the trial court’s decision must take into account the surrounding circumstances, including a consideration of the alternatives to termination of the trial. Foody, supra at 666-667; see Dotson v. State, 213 Ga. App. 7, 8 (443 SE2d 650). The defendant’s right to a fair trial is not paramount to the State’s right to a fair trial. The trial court has the duty to ensure a fair trial to all parties in a case and has as much authority to grant a mistrial where injustice is caused to the State as where injustice is caused to the defendant. State v. Abdi, 162 Ga. App. 20, 22 (288 SE2d 772), aff'd Abdi v. State, 249 Ga. 827 (294 SE2d 506).

The trial court determined that the prejudicial and inadmissible matter elicited by the defense made it impossible for an impartial verdict to be reached and the fact that the actions which elicited that evidence were unintentional or innocent does not make the evidence less prejudicial or less inadmissible. The trial court did not abuse its discretion in granting a mistrial based on manifest necessity. The denial of appellant’s former jeopardy plea was therefore not error. Appellant may be retried consistent with the Fifth Amendment. See Venson v. State, 212 Ga. App. 540 (441 SE2d 893).

Judgment affirmed.

Johnson and Smith, JJ., concur.

Decided May 12, 1995

Reconsideration denied June 5, 1995.

William H. Turner, Jr., for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.