author: Blackburn, Judge.

text:
    A93A1798.
    IVEY v. THE STATE.
    (437 SE2d 810)
   Blackburn, Judge.

The appellant, Kory Ivey, was charged with driving under the influence, operating a vehicle while in possession of an open container, and driving too fast for conditions. Prior to arraignment, Ivey filed a special demurrer to the accusation, contending that it did not comply with the signature requirement of OCGA § 17-7-71 because it contained the typewritten name of the district attorney rather than his actual signature.

Decided October 6, 1993

Reconsideration denied November 5, 1993

William C. Head, for appellant.

David C. Turk III, District Attorney, Durwood Davis, Assistant District Attorney, for appellee.

At the inception of the trial, Ivey also filed a motion for discharge and acquittal, asserting that if his special demurrer were granted, subsequent prosecution would be barred. The trial court denied the special demurrer, but adjourned the proceeding when counsel for Ivey persuaded him that immediate, direct appeal of the denial was authorized. Ivey then filed a notice of appeal resulting in this direct appeal.

As noted in Gibson v. State, 187 Ga. App. 769 (371 SE2d 413) (1988), this court has previously upheld the validity of accusations which contained only the typewritten name of the solicitor, notwithstanding the statutory requirement that such be signed by the solicitor. In doing so, we reasoned that the typed name was the equivalent of a signature within the meaning of the statute. Hardeman v. State, 147 Ga. App. 120 (1) (248 SE2d 189) (1978); Byrd v. State, 72 Ga. App. 840 (1) (35 SE2d 385) (1945).

However, we may not address the issue now, because objections to overruling a special demurrer are reviewable by the appellate courts under the interlocutory appeal procedures of OCGA § 5-6-34 (b), or after conviction. See State v. Eubanks, 239 Ga. 483, 486 (238 SE2d 38) (1977). Accordingly, Ivey’s direct appeal of this interlocutory matter must be dismissed.

Appeal dismissed.

McMurray, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Cooper, Judge. Beasley, Presiding Judge,

license: Public Domain

text:
    A93A1137.
    REID v. THE STATE.
    (437 SE2d 646)
   Cooper, Judge.

Appellant was convicted of armed robbery (two counts) and possession of a firearm during the commission of a crime (two counts). He appeals from the judgments of conviction and sentences.

The victims, Mr. and Mrs. Talbert, were guests at a motel along 1-20 for the evening. At about 10:15 p.m., while Mrs. Talbert was watching television and Mr. Talbert was dozing, they heard a knock at their door. Mr. Talbert twice asked who was there and twice heard the word “service” in response but saw no one when he looked through the peephole in the door. After waiting a minute, Mr. Talbert opened the door slightly to see if anyone was there. By the time he saw appellant and two other young men crouching in the doorway, the three young men smashed through the door, pressing a gun against Mr. Talbert’s chest and flipped him over a nearby table onto the floor. Appellant then stepped on Mr. Talbert’s chest, shoved the gun in his face and threatened to blow his head off if he moved. While the other two men emptied Mrs. Talbert’s purse, took Mr. and Mrs. Talbert’s wallets and searched the room for more cash, appellant forced the gun in and out of Mr. Talbert’s mouth, breaking and chipping several of his teeth, and then shoved the gun forcefully into Mr. Talbert’s cheek. Eventually appellant marched the victims into the bathroom where they locked themselves in. After hearing the perpetrators leave, the victims rushed out into the parking lot but saw no trace of the robbers. The case was assigned to Gary Palmer, a criminal investigator for the Columbia County Sheriff’s Department.

Appellant and two co-defendants were subsequently arrested while fleeing from another motel robbery in a nearby county. Because the robberies were almost identical, Investigator Palmer informed the victims he had some suspects and sent a photographic lineup to Dade County, Florida, where the victims lived. The lineup contained only six photographs, including those of appellant and his two co-defendants. Lieutenant Rutledge of the Metro Dade Police conducted the photographic lineup with each victim individually. Although they were not certain with respect to the two co-defendants, both victims immediately and positively identified appellant as the man with the gun. At trial, both victims positively identified appellant and the two co-defendants as the three men who robbed them. The jury found appellant guilty but acquitted the two co-defendants on all counts.

1. Appellant first contends that he was denied a fair and impartial trial because he was required to wear leg irons throughout the trial. “Art. I, Sec. I, Par. XI of the [1983] Georgia Constitution mandates that ‘(i)n criminal cases, the defendant shall have a public and speedy trial by an impartial jury.’ ‘ “(A) defendant being tried for a criminal offense on a plea of not guilty was entitled, at common law, to make his appearance free from all shackles or bonds. This is also the present rule, and the right is recognized as an important component of a fair and impartial trial.” (Cit.)’ [Cit.] ‘ “(O)ne accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on the grounds of official suspicion, indictment, continued custody or other circumstances not adduced as proof at trial.” (Cit.)’ [Cit.] [The accused is] entitled to have a trial free of restraint and ‘free of partiality created by the use of (shackles) except where special circumstances exist, which in the discretion of the trial judge, dictate added security precautions. (Cit.)’ [Cit.]” Mapp v. State, 197 Ga. App. 7 (397 SE2d 476) (1990) . However, “ ‘where there is good and sufficient cause, the court has discretion in requiring a defendant to be handcuffed or shackled for security reasons. (Cits.) Abuse of [that] discretion is the test on appeal where restraining devices have been used in the trial court. (Cit.)’ [Cit.]” Brewer v. State, 199 Ga. App. 710 (2) (405 SE2d 899) (1991) .

We note, initially, that there is no contention that appellant was forced to appear at trial wearing prison garb. Compare Mapp v. State, supra. The trial judge in this case required appellant and his co-defendants to wear leg irons because all had been recently convicted of armed robbery in a neighboring county and were already serving life sentences for that violent crime. The three defendants were tried together in a small courtroom with multiple exits and at most four guards, and those guards were coming and going, often leaving the floor, as they performed other duties. In the absence of evidence that appellant had a history of attempted escape or of violently disruptive behavior in the courtroom or in jail, or that he had made threats against the witnesses, the trial judge or others, the bare fact that appellant had a prior conviction for armed robbery would not give rise to the exceptional circumstances authorizing the presiding judge to put the accused on his trial wearing handcuffs, manacles, or shackles. See Hicks v. State, 200 Ga. App. 602, 603 (409 SE2d 82) (1991) (physical precedent); Mapp v. State, supra; McKenzey v. State, 138 Ga. App. 88, 89 (1b) (225 SE2d 512) (1976) (physical precedent). Compare Allen v. State, 235 Ga. 709, 711-712 (221 SE2d 405) (1975); Potts v. State, 259 Ga. 96, 100 (3) (376 SE2d 851) (1989). The possibility of four guards being too few is not a circumstance to be remedied by denigrating the presumption of innocence. The trial court abused its discretion in this instance by requiring appellant to remain shackled during trial, in the absence of exceptional circumstances.

This abuse of discretion is subject to the test for harmless error. See Martinez v. State, 189 Ga. App. 69, 72 (2) (375 SE2d 123) (1988). While the leg irons were not totally hidden from the jurors’ view, the trial court made efforts to avoid bringing them to the jury’s attention, sending the jury out whenever the defendants needed to stand or move about. See Hicks v. State, 256 Ga. 715, 719 (9) (352 SE2d 762) (1987). Moreover, all three defendants wore the leg irons, and while appellant was convicted, his two co-defendants were acquitted. Under these circumstances, we cannot conclude that the presence of physical restraints on appellant’s legs deprived him of a fair and impartial trial. The decision to require appellant to remain in shackles, although made in error, was harmless beyond a reasonable doubt.

2. Appellant next argues that the victims’ identification testimony should have been excluded because the pre-trial photographic lineup wás impermissibly suggestive. Specifically, he asserts that more than six photographs should have been used since there were three suspects and that Detective Palmer should not have told the victims that the suspects were in custody and that their pictures would appear in the lineup. Admission of testimony regarding a pre-trial identification is error only if the identification procedure was impermissibly suggestive and it appears that, under the totality of the circumstances, the suggestiveness of the procedure gave rise to a substantial likelihood of misidentification. Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972); Mobley v. State, 198 Ga. App. 497 (3) (402 SE2d 100) (1991); Pack v. State, 182 Ga. App. 618 (356 SE2d 557) (1987). “Merely because [appellant’s co-indictees were included in] the six [photographs] did not make the lineup impermissibly suggestive. [Cits.]” Jackson v. State, 209 Ga. App. 53, 54 (1) (432 SE2d 649) (1993). As to the detective’s statement that the suspects were in custody and would be included in the lineup, “such statements . . . should be avoided[.] [Nevertheless,] a witness called to view a lineup must suspect that police believe there is some reason to have the witness view the lineup. The holding of the lineup is suggestive in and of itself, [but] the statement complained of here was no more suggestive than was the lineup itself. A lineup is not per se unconstitutional.” Mitchell v. State, 236 Ga. 251, 254-255 (2) (223 SE2d 650) (1976). “Since the pre-indictment lineup procedures were not impermissibly suggestive, so as to lead to an ‘all but inevitable’ identification of appellant, he has failed to establish even the first prong of the relevant inquiry. [Cit.] The trial court did not err in [admitting at trial] the eyewitness identification testimony. [Cit.]” Jackson v. State, supra.

Furthermore, the bare possibility of- taint in pre-indictment photographic lineup procedures does not mandate the exclusion of in-court identification testimony by an eyewitness. “As to the in-court identification, even where a pre-trial identification has been found to be tainted, a subsequent in-court identification is admissible if it does not depend upon the prior, tainted identification but has some other, independent basis. [Cit.]” Jacobs v. State, 207 Ga. App. 714, 715 (1) (429 SE2d 256) (1993). In this case, Mr. Talbert testified that he has good eyesight and the room in which he and his wife were robbed was well lighted. The robbers were not disguised, and Mr. Talbert was able to look right into the face of the man with the gun for at least several moments before he was told to keep his eyes down. Mr. Talbert further stated that he focused his attention on the man’s face during his ordeal so that he would be able to remember it. Mrs. Talbert also testified that the room was well lighted and that she got a good look at the man holding a gun on her husband. Both victims positively identified appellant’s photo as that of the gunman without hesitation. Moreover, both victims testified that their in-court identifications were based on their opportunity to view appellant at the time of the crime. Thus, under the totality of the circumstances, “ ‘[w]e find no substantial likelihood of irreparable misidentification on either the pretrial or in-court identification of the [appellant] as the [perpetrator] of the [offenses] in question. (Cits.)’ [Cit.]” Pack, supra at 620. Accordingly, the trial court did not err in allowing the victims’ identification testimony.

3. In his third and fourth enumerations of error, appellant makes several arguments relating to the admission of testimony from two deputies regarding an incriminating statement made by one of the three co-defendants. The deputies testified that they picked up the three defendants in McDuffie County and drove them to court. The defendants were sitting in the back seat of the patrol car, talking and laughing, and one of them said, “If we would have shot them, we wouldn’t be here today.” Neither deputy could identify which defendant made the statement, but none of the three articulated disagreement, and all three laughed. On cross-examination, defense counsel attempted to place the statement in context by asking one of the deputies what else the defendants were talking about, and the response included references to McDuffie County and a Judge Stevens.

(a) Appellant asserts that the trial court erred in allowing testimony regarding the incriminating statement even though the deputies could not identify the speaker and compounded that error by denying his motion to sever his trial from that of his co-defendants, neither of whom testified at trial. He also contends that it was unfair to allow the deputies’ testimony because the speaker was actually talking about a different armed robbery when he made the statement, but appellant could not explain this without impugning his own character. Citing Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968), appellant argues that these rulings deprived him of his right to cross-examine witnesses against him. However, the incriminating statement about shooting the witnesses was admissible against all defendants as the statement of a co-conspirator made prior to the termination of the conspiracy. OCGA § 24-3-5. Compare OCGA § 24-3-52. The relation of such an incriminating statement by the earwitness is not an unconstitutional infringement of the right to confront or cross-examine adverse witnesses. See, e.g., Mooney v. State, 243 Ga. 373, 390 (3) (254 SE2d 337) (1979). As the statement is incriminating only to the extent it tends to establish the existence of a conspiracy and is not the custodial confession of a non-testifying accomplice which details the criminal participation of appellant, we find Bruton v. United States, supra, inapplicable. The admission of the statement overheard by the deputy did not mandate severance of the parties for trial nor a limiting instruction to the jury that such a “confession” by one co-defendant could not be considered against the others. Hughes v. State, 257 Ga. 200, 202 (1) (357 SE2d 80) (1987).

(b) Lastly, appellant contends the trial court erred in denying his motion for mistrial after co-defendant’s counsel in attempting to provide a context for the incriminating statement, elicited brief references to McDuffie County and Judge Stevens. It appears that McDuffie County was the site of the other motel robbery, and Judge Stevens was the judge who sentenced all three defendants to life after they were convicted of that robbery; however, the jury did not know this. These passing references to another county and another judge did not place appellant’s character in evidence. See, e.g., Ogles v. State, 238 Ga. 716 (235 SE2d 384) (1977); Cochran v. State, 177 Ga. App. 471 (3) (339 SE2d 749) (1986). Accordingly, it was not error to deny appellant’s motion for mistrial.

Judgments affirmed.

Beasley, P. J., and Smith, J., concur specially.

Beasley, Presiding Judge,

concurring specially.

I concur fully in Divisions 2 and 3 and, with respect to Division 1, I agree that no reversible error occurred. However, we need not reach the difficult question of whether allowing the defendant to remain shackled under the total circumstances was legal error in the first place, since the conclusion is that it was harmless. For the purposes of this case, we can simply assume arguendo that it was error. Nevertheless, the majority decides the question and arrives at an answer with which I cannot agree.

The record is sparse with respect to the environment, facilities, and circumstances, but it does show that the defendant was under a life sentence for a violent crime, he was present with two similarly sentenced co-defendants, the courtroom was small, the judge was concerned about security and was fearful that the four officers could not handle the three if they decided to make trouble, and the judge arranged that the leg shackles would remain as unobtrusive as possible, keeping defendants seated while the jury was present. The majority’s recognition of the court’s precautionary measures to replace any impact of the leg irons on the jury comes close to saying that the court’s handling of the matter was not an abuse of discretion.

It was the responsibility of the court to assure the safety of everyone in the courtroom, as well as to prevent an escape which would endanger the general public. An increased number of armed guards as an alternative has been recognized by this court as more visible to the jury, and thus possibly more prejudicial, than leg irons. See Collins v. State, 164 Ga. App. 482, 484-485 (4) (297 SE2d 503) (1982). The court did not abuse its discretion.

I am authorized to state that Judge Smith joins in this special concurrence.

Decided November 5, 1993.

Peter D. Johnson, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A93A1053.
    BERRY v. THE STATE.
    (437 SE2d 630)
   McMurray, Presiding Judge.

Defendant Berry appeals his conviction of statutory rape. Held:

1. The first enumeration of error complains of the grant of the State’s motion in limine preventing defendant from introducing evidence of sexual intercourse between the victim in the case sub judice and other individuals. A medical report was redacted to remove a statement by the victim that she had sex with other persons. Defendant argued that, since any acts of sexual intercourse with the victim were statutory rape due to her age, the entire report should have been admitted under the reasoning of such cases as Lemacks v. State, 207 Ga. App. 160 (427 SE2d 536) and Raines v. State, 191 Ga. App. 743, 745 (2) (382 SE2d 738). In Raines, we noted that OCGA § 24-2-3 precludes introduction of the victim’s past sexual behavior and stated that “a prior rape committed against the victim has nothing whatsoever to do with her past sexual behavior.” Id. at 745 (2). In the light of defendant’s argument, it is apparent that this statement must be qualified as relating only to forcible rape. In the absence of any indication that the prior acts of sexual intercourse with the victim in this case were forcibly accomplished, the evidence as to sexual intercourse with others would relate to past sexual behavior and reflect upon the character of the victim. Such evidence was properly excluded under OCGA § 24-2-3 (b).

Defendant also argues that the trial court erred in refusing to allow his attorney to question the victim outside the presence of the jury in order to develop evidence in regard to whether she had made prior false accusations of statutory rape. Evidence of prior false allegations by a victim may be admitted to attack her credibility, but first the trial court must make a threshold determination outside the presence of the jury that a reasonable probability of falsity exists. Smith v. State, 259 Ga. 135, 137 (1) (377 SE2d 158); Humphrey v. State, 207 Ga. App. 472, 475 (2) (428 SE2d 362). “The purpose of the hearing is to allow the defendant to present evidence of prior false accusations, not to provide an opportunity for discovery and investigation which the defense hopes might lead to such evidence.” Postell v. State, 200 Ga. App. 208, 212 (4a) (407 SE2d 412), rev’d on other grounds, 261 Ga. 842 (412 SE2d 831). In view of defense counsel’s acknowledgment at trial that he could not prove that the victim had made any prior false accusations, there was no error in the trial court’s refusal to conduct such a hearing upon the request of defense counsel. Postell v. State, 261 Ga. 842, 843 (2), supra.

2. Defendant’s second enumeration of error maintains that his custodial statement to police should not have been admitted into evidence because he was lied to and deceived into making an incriminating statement. Confessions are admissible though obtained by artifice, trick, or deception, so long as the means employed to procure them are not calculated to elicit an untrue statement. Moore v. Stale, 230 Ga. 839, 840 (1) (199 SE2d 243); Shelton v. State, 196 Ga. App. 163, 164 (3) (395 SE2d 618); Tyson v. State, 165 Ga. App. 22 (299 SE2d 69). That a confession is obtained by such means does not preclude a finding that the confession was freely and voluntarily given. Moore v. State, 230 Ga. 839, 840 (1), supra; McLeod v. State, 170 Ga. App. 415 (1), 416 (317 SE2d 253). Under the circumstances in the case sub judice, the trial court did not err in admitting defendant’s statement.

3. Defendant also enumerates as error the trial court’s denial of defendant’s motion in limine seeking to redact, from the custodial statement, defendant’s reference to a prior accusation of statutory rape which did not result in his conviction. Furthermore, defendant complains of the denial of a motion for mistrial based on a reference to that portion of defendant’s statement during the State’s argument to the jury.

The State’s reliance upon Mathis v. State, 172 Ga. App. 314 (1) (323 SE2d 227) and Bradford v. State, 166 Ga. App. 584, 585 (4) (305 SE2d 32) is misplaced since this defendant did not admit his commission of or his conviction for any separate offense. The introduction of any evidence relating to the independent offense or act was subject to the procedure set forth in Uniform Superior Court Rule 31.3 (b) and to the three-prong test stated in Williams v. State, 261 Ga. 640, 642 (2b) (409 SE2d 649). As there was no attempt to comply with this procedure in connection with this evidence, and also no evidence presented which would satisfy any portion of the three-prong test, defendant’s motion to redact the portion of his statement referring to accusations that he had committed a prior offense of statutory rape should have been granted.

In order to determine whether this error was harmful, we must examine the evidence presented at trial. The victim, who was 13 years of age on the trial date, testified that she had sexual intercourse with defendant and this testimony was corroborated by evidence as to her statements to her mother and to police. Defendant admitted to police that he had sexual intercourse with the victim.

The defense consisted of evidence from four witnesses. A restaurant employee heard the victim’s mother stating in reference to defendant that: “They finally got that son-of-a-bitch.” A nurse who had examined the victim testified as to the victim’s statement to her concerning the last time she had sex with defendant, which date was inconsistent with the State’s evidence as to when the alleged act of sexual intercourse occurred. The defendant’s sister testified as to the victim attempting to help defendant by making a tape recording of a telephone conversation in which the victim said she did not have sex with defendant. The defendant’s father testified that he had told police that he did not believe his son and the victim had sex together.

We find that the evidence of defendant’s guilt is overwhelming in that there is no reasonable probability that the verdict of the jury would have been different in the absence of this error. Hite v. State, 208 Ga. App. 267, 270 (430 SE2d 125). Under these circumstances, the reversal of defendant’s conviction due to the failure to redact defendant’s statement is not mandated. Gilbert v. State, 208 Ga. App. 258, 263 (3) (430 SE2d 391); Bailey v. State, 207 Ga. App. 283, 284 (427 SE2d 612); Wheat v. State, 205 Ga. App. 388, 389 (2) (422 SE2d 559).

Nor does the reference to this portion of defendant’s statement during the State’s argument require reversal. While the question of whether to redact defendant’s statement related to the improper introduction of evidence of defendant’s character, the reference to the statement in the State’s argument was only in connection with defendant’s familiarity in dealing with police, that is, as showing defendant’s “street smarts,” and no suggestion was made that defendant had committed any separate crime. This brief reference, if error, was harmless for the same reasons as the failure to redact.

4. The fourth enumeration of error complains of the denial of a motion for mistrial predicated on a question asked of the victim on direct examination but never answered as the prosecuting attorney withdrew the question following defendant’s objection thereto. While defendant’s argument presumes that the three words uttered by the witness before she was interrupted constitute an answer, we do not agree as they cannot be reasonably understood to constitute a coherent response to the question asked. Therefore, even if the question were improper, there was no harm in the asking of the question since an unanswered question does not furnish grounds for a mistrial. Baker v. State, 193 Ga. App. 498, 501 (5) (388 SE2d 402); Middlebrooks v. State, 169 Ga. App. 507, 509 (2) (313 SE2d 764).

5. Defendant’s fifth enumeration of error complains of the trial court’s denial of his motion for mistrial based upon the State’s argument to the jury. The prosecutor argued to the jury that while the defendant had attempted to portray the victim as sexually promiscuous such had not been established by the evidence. Defense counsel objected and moved for a mistrial arguing that it was unfair to use the rape shield statute in such a fashion as he had been prohibited from presenting such evidence. The trial court sustained the objection and denied the motion for mistrial. Defendant subsequently renewed his motion for mistrial.

Decided October 26, 1993

Reconsideration denied November 8, 1993

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

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

The trial judge in passing upon a motion for mistrial on account of alleged improper argument is vested with a broad and sound discretion, and his ruling will not be controlled by this court unless manifestly abused. Johnson v. State, 208 Ga. App. 747, 750 (4) (431 SE2d 737); Dix v. State, 206 Ga. App. 429, 430 (1) (425 SE2d 419). In the case sub judice, we find no such manifest abuse in the trial court’s conclusion that sustaining defendant’s objection to the argument was a sufficient remedy. The fairness of the trial was unlikely to be affected by the argument at issue since, as noted by the trial judge, the sexual history of the victim was not relevant to any issue in a prosecution for statutory rape.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A1763.
    HALL v. THE STATE.
    (437 SE2d 634)
   Blackburn, Judge.

In a two-count indictment, the appellant, Ricky Hall, was charged with selling cocaine on July 9, 1992, and July 15, 1992, in violation of the Georgia Controlled Substances Act. Upon the advice of his retained counsel, Hall subsequently pled guilty to both counts and was sentenced to ten years’ imprisonment on each, to serve five concurrently, with the remaining five years to be served on probation.

On January 4, 1993, the day that Hall was scheduled to begin serving his sentence, Hall moved the court for a new trial. In addition to asserting the general grounds in the motion, Hall asserted that his plea was not freely and voluntarily entered with an adequate understanding of the consequences thereof, and that the plea was entered without a factual basis. Hall later amended the motion for new trial, asserting that he was denied effective assistance of counsel and that he had discovered new exculpatory evidence. He also moved the court for the granting of a reasonable bond pending the appeal. Following a hearing, the trial court denied both motions, and this appeal followed.

1. Hall maintains that his guilty plea was not freely and voluntarily given as it was based upon the tainted advice of an ineffective counsel. Hall asserts that counsel’s inadequacies stem from his failure to interview a defense witness who could have provided exculpatory testimony, and failure to adequately prepare for his defense. Based upon counsel’s alleged deficiencies, Hall argues that the trial court’s denial of his motion for new trial was erroneous. We disagree.

Before a guilty plea is accepted by a trial court, the court must determine that the plea is voluntarily made and that the defendant intelligently and understandingly waives his constitutional rights with an understanding of the nature of the charges against him and the consequences of the plea. Bacon v. State, 201 Ga. App. 641 (411 SE2d 785) (1991). However, “[w]here, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice ‘was within the range of competence demanded of attorneys in criminal cases.’ [Cit.]” Hill v. Lockhart, 474 U. S. 52, 56 (106 SC 366, 88 LE2d 203) (1985). In challenging the competency of an attorney in a claim of ineffective assistance, a criminal defendant must show that counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). In Hill, supra, the Supreme Court held that this two-prong test enunciated in Strickland is applicable to challenges to guilty pleas based upon counsel’s ineffectiveness. Nevertheless, in order to satisfy the second prong of the Strickland test, that is, to meet the “prejudice” requirement, “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, supra at 59.

Georgia appellate courts have recognized the Hill test in determining the effectiveness of counsel in the context of guilty pleas. See Tarwater v. State, 259 Ga. 516 (383 SE2d 883) (1989) (defendant’s guilty plea was conditioned upon the guilty pleas of two co-defendants that had been represented by the same counsel as a part of plea-bargaining negotiations); Curry v. Zant, 258 Ga. 527 (371 SE2d 647) (1988) (failure to obtain an independent psychiatric evaluation of the defendant).

In the case sub judice, in support of his challenge to the voluntariness of his guilty plea, Hall presented the testimony and affidavit of an individual present during both sales, Harry Truman Rosser. Rosser averred in his affidavit and at the hearing on defendant’s motion for new trial, that on July 9, 1992, he was the individual who in fact sold contraband to the agent, and was incorrectly identified by an informant as Hall. He further denied Hall’s involvement in the sale of cocaine on that date. Rosser also averred that he observed the July 15, 1992, meeting of Hall and the undercover officer and did not see Hall provide the officer with anything. Hall testified that he was unaware that Rosser could provide potentially exculpatory testimony at the time that he entered his plea of guilty.

Counsel testified that during his interview of Hall prior to the plea proceedings, Hall admitted to the sale of cocaine on the dates in question although he was uncertain as to whom he had sold the contraband. In preparation of Hall’s defense, counsel interviewed the state’s witnesses, including the chief investigative officer and the undercover agent to whom Hall sold the contraband. See Harrell v. State, 139 Ga. App. 556 (228 SE2d 723) (1976). Based upon his conversation with the undercover agent, he concluded that the agent could identify Hall at trial. Counsel also obtained discovery documentation from the state, including investigatory reports in which Rosser’s name had appeared along with the names of other individuals present during the incidents, and discussed this material with Hall.

Counsel recommended that Hall enter a plea of guilty after Hall admitted to the commission of the offenses charged and after counsel’s interview with a witness for the state who could have identified Hall at trial as the seller of the contraband.

Moreover, Hall does not intimate that he would have insisted on proceeding to trial but for counsel’s alleged inadequacies as required under Hill. Inasmuch as Hall has failed to show that he has been prejudiced by counsel’s alleged inadequacies, we must conclude that Hall’s plea was intelligently and voluntarily entered with the benefit of competent counsel. Counsel’s investigation was not inadequate in view of the admissions made to him by defendant, which admissions defendant did not rebut at the hearing on the motion for new trial. Considering the action taken by counsel in preparation of his defense, and the conflict in the testimony provided at the hearing, we cannot say that the trial court’s finding that Hall had been afforded effective assistance of counsel was clearly erroneous. Karvonen v. State, 205 Ga. App. 852 (424 SE2d 47) (1992). Accordingly, this enumeration is without merit.

2. Following a hearing, the trial court issued an order denying Hall’s motion for a supersedeas bond after due consideration of the requirements enunciated by the Supreme Court in Birge v. State, 238 Ga. 88, 90 (230 SE2d 895) (1976), concluding that there was a substantial risk that Hall would commit another felony. In an order of August 20, 1993, we likewise denied Hall’s motion for a supersedeas bond. In his second enumeration of error, Hall maintains that the trial court’s denial of his appeal bond was erroneous. “However, the issue is moot because we affirm the conviction.” (Citations and punctuation omitted.) Dorminey v. State, 205 Ga. App. 806, 808 (2) (423 SE2d 698) (1992); Griffin v. State, 199 Ga. App. 646, 649 (4) (405 SE2d 877) (1991).

Decided October 26, 1993

Reconsideration denied November 8, 1993

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, for appellant.

Peter J. Skandalakis, District Attorney, Agnes T. McCabe, David S. McLaughlin, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


text:
    A93A2177.
    KROGER COMPANY v. BARENTINE.
    (437 SE2d 629)
   Blackburn, Judge.

The underlying action is based on a complaint sounding in negligence brought by Dale Barentine against The Kroger Company (Kroger). Upon the trial of the case, the jury returned a verdict in favor of Barentine. Kroger appeals the trial court’s denial of its motion for directed verdict, its motion for j.n.o.v., and, alternatively, its motion for new trial.

Barentine entered Kroger at approximately 3:45 a.m., to purchase a box of cigars. On his way to check out, he slipped and fell on a puddle of a clear liquid near the check-out counter. Kroger contends that during his testimony at trial, Barentine contradicted his earlier deposition testimony and that this contradiction, construed against him, demanded a directed verdict in favor of Kroger. On deposition, Barentine testified on cross-examination, “If I hadn’t have looked towards Andre and said, T’m ready to check,’ like I usually do when he’s working, ‘Andre, I’m ready to check,’ because I’m in a hurry, I’m ready to go. And if I had not been saying that and been just right straight with my eyes on the floor I’d seen — I wouldn’t —.” Kroger’s counsel then asked, “You would not have any trouble seeing it?” Barentine responded: “No. I’m sure I wouldn’t because I’ve been in too many times.” At trial, Kroger’s counsel asked Barentine, “If you had been looking where you were going walking towards the checkout line and looked down you would not have had any trouble seeing that puddle there, would you?” In response, Barentine testified, “Sir, I was watching where I was going, but the floor was clear and I could not see it if I had a magnifying glass, if I was looking right down through it.” Kroger’s counsel then attempted to impeach Barentine with his deposition testimony. Whether Barentine was successfully impeached is a question for the jury. Jackson v. Riviera Dev. Corp., 130 Ga. App. 146 (1) (202 SE2d 545) (1973).

Decided October 21, 1993

Reconsideration denied November 8, 1993

Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, for appellant.

Drew, Eckl & Farnham, John G. Blackmon, Jr., for appellee.

Kroger argues that the trial court should have construed Barentine’s contradictory testimony against him and granted Kroger’s motion for directed verdict based on Barentine’s failure to exercise ordinary care for his own safety by failing to watch where he was walking, where he admits he could have seen the puddle had he done so. We agree that Barentine’s contradictory testimony was to be construed against him, see Douglas v. Sumner, 213 Ga. 82, 85 (97 SE2d 122) (1957). “Where the favorable portion of a party’s self-contradictory testimony is the only evidence of his right to recover . . . the opposing party is entitled to a directed verdict.” Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).

The conflict in the plaintiff’s testimony on deposition and at trial when construed against him, entitled defendant to a directed verdict and the trial court erred in denying Kroger’s motion for directed verdict and for j.n.o.v.

Judgment reversed.

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


author: Pope, Chief Judge.

text:
    A93A1653.
    PARKS v. THE STATE.
    (437 SE2d 651)
   Pope, Chief Judge.

Following denial of his motion for new trial, defendant appeals his conviction for rape and burglary. Construing the evidence in the light most favorable to support the verdict, the jury was authorized to find that in the early morning hours of April 15, 1989, .the defendant entered the residence of the victim and raped her repeatedly.

1. Defendant argues the trial court improperly allowed evidence of an alleged similar transaction. Before admitting the similar transaction evidence, the trial court conducted a hearing pursuant to Superior Court Rule 31.3 (B), in which the State made a showing that it intended to present the evidence of the independent act for a proper purpose, that there was sufficient similarity between the independent crime and the offense charged such that the former tends to prove the latter, and that the perpetrator of the similar offense was the defendant. Both the victim of the independent offense and the victim of the offense charged identified the defendant as the rapist. The rapes occurred in very close geographical proximity to each other, and both occurred very close to the defendant’s former place of employment. The independent offense occurred approximately one year after the crimes charged. The victims testified that on both occasions the perpetrator smelled of alcohol, threatened the victim, instructed the victim not to look at his face and appeared familiar with the area. Both victims testified that they saw or thought they saw a knife on the perpetrator’s person. Although there were some dissimilarities between the offenses, we find that the trial court correctly concluded that the State introduced the evidence for a proper purpose, the offenses were sufficiently similar and the defendant was the perpetrator the independent offense. Accordingly, we find no merit in defendant’s argument that the trial court erred in admitting the similar transaction evidence. Howard v. State, 204 Ga. App. 882 (1) (420 SE2d 811) (1992).

2. Defendant complains that the trial court erred by having communications with the jury in open court when the defendant was not present. The record reflects that after the jury had deliberated approximately one-and-one-half hours, they sent a note to the judge saying “[W]e cannot come to an entire conclusion. What do we do?” Upon receiving the note, the trial judge called counsel for both sides to the bench and suggested that because it was late in the afternoon, the jury be sent home for the day and brought back tomorrow. Counsel for both sides agreed to that procedure. The trial judge then asked if defense counsel waived the presence of the defendant and he responded, “Defense waives the defendant’s presence.” The jury was then brought in and dismissed for the day.

It is well-settled that the defendant on trial must be present when the court takes any action materially affecting his case. There must be no communication that would tend in any manner to prejudice the defendant and unless the character of the communication clearly shows that it could not have been prejudicial to the accused, it is presumed to be prejudicial. Hurston v. State, 206 Ga. App. 570 (2) (426 SE2d 196) (1992). The record clearly shows that the communication between the trial court and the jury in defendant’s absence was not prejudicial. The jury was simply told that they would be allowed to go home for the day and instructed to return the next day and continue deliberations. Nothing was said outside defendant’s presence that could have “undermined the inherent fairness of the trial or the rights of [defendant].” Id. at 572-573. Defendant’s reliance on our decision in Collins v. State, 191 Ga. App. 289 (2) (381 SE2d 430) (1989) is misplaced because in that case substantive instructions were given to the jury outside the defendant’s presence.

3. Defendant argues the trial court erred in charging the jury that aggravated assault with intent to rape could serve as the underlying felony to support the defendant’s conviction for burglary because the indictment which charged him with burglary stated that the underlying felony was rape. However, it can be determined from the verdict form that the jury in this case found the underlying felony of which defendant was guilty to be rape rather than aggravated assault with intent to rape. Accordingly, if this charge was error, it is at most harmless error under the facts of this case and does not authorize reversal of defendant’s conviction. Cf. Peters v. State, 261 Ga. 373 (3) (405 SE2d 255) (1991) (impossible from the verdict to tell what the jury considered to be the underlying felony). See also Hardy v. State, 159 Ga. App. 854, 859 (285 SE2d 547) (1981) (“ ‘An assault, or assault and battery, is necessarily involved in every case of rape. (Cits.) In all cases where the defendant is charged with rape, and where the evidence under any view thereof, would authorize a conviction for a lesser offense necessarily involved in the graver charge, the jury should be instructed that he may be convicted of the lesser offense. (Cit.) . . .’ [Cit.]”).

4. We find no merit in defendant’s argument that the jury charge taken as a whole denied him due process, shifted the burden of proof, and negated any charge on reasonable doubt. Our review of the charge in this case reveals that the jury was properly instructed on the State’s burden of proof and that the burden of proof never shifts to defendant. The charge on reasonable doubt does not contain any of the language which required a finding that the subject charge was constitutionally deficient in Cage v. Louisiana, 498 U. S. 39 (111 SC 328, 112 LE2d 339) (1990) (per curiam) and Sullivan v. Louisiana, 508 U. S. _ (113 SC 2078, 124 LE2d 182) (1993). Furthermore, defendant’s argument that the use of the term “duty to convict” constitutes reversible error has been decided adversely to defendant by our Supreme Court in Sutton v. State, 262 Ga. 181 (2) (415 SE2d 627) (1992).

5. Defendant also challenges the denial of his motion for new trial on the general grounds. The victim testified that she had a sufficient opportunity to observe the rapist and identified defendant as the perpetrator. Also, the State presented evidence that defendant’s fingerprint was removed from a light bulb in the victim’s residence, which was unscrewed by the rapist to make the victim’s residence darker. As matters of credibility of a witness are solely for the jury to determine, the jury was authorized to reject defendant’s alibi defense. The evidence was sufficient for a rational finder of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt.

Decided November 8, 1993.

R. Gary Spencer, Marc N. Cunat, for appellant.

Lewis R. Slaton, District Attorney, Barry I. Mortge, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Defendant does not argue that his counsel did not have his permission to waive his presence or that he failed to later acquiesce in the waiver of his presence. See Williams v. State, 251 Ga. 749, 798 (312 SE2d 40) (1983).


author: Johnson, Judge.

text:
    A93A1738.
    ELLIOTT v. THE STATE.
    (437 SE2d 490)
   Johnson, Judge.

The police found Cheryl P. Elliott in actual possession of marijuana while she was an inmate at the Pickens County jail and found methamphetamine in her jail cell. Elliott was indicted for possession of methamphetamine, misdemeanor possession of marijuana and as a recidivist. During the trial of a co-defendant, Elliott was called as a witness and refused to testify, invoking her privilege against self-incrimination. The State asked the court to order Elliott to testify under OCGA § 24-9-28. The court granted Elliott use and derivative use immunity and ordered her to testify, which she did. Thereafter, the State reindicted Elliott. In the second indictment, the State set forth the same possession of methamphetamine and recidivist counts contained in the original indictment, but upgraded the misdemeanor marijuana possession charge to the felony offense of possession of marijuana by an inmate. OCGA § 42-4-13. Elliott was convicted of the charges and appeals.

1. Elliott contends that the court erred in denying her motion to dismiss the second indictment because the state failed to show that it used only evidence derived from sources independent of her immunized testimony to obtain the reindictment. Upon the court’s order that a person shall not be excused from testifying on the basis of her privilege against self-incrimination, “no testimony or other evidence required under the order or any information directly or indirectly derived from such testimony or evidence may be used against the person in any proceedings or prosecution for a crime or offense concerning which he testified or produced evidence under court order.” OCGA § 24-9-28 (a). In the instant case, the only difference between the first and second indictments is the allegation that Elliott was an inmate at the time she possessed the marijuana, a fact known by the State prior to and independent of Elliott’s testimony. Moreover, at an evidentiary hearing held to determine whether the reindictment was tainted, the only evidence presented was the testimony of the police officer who also had been the sole witness before the grand jury that issued the second indictment. He testified that the State’s investigation of Elliott was completed over six months before she gave the immunized testimony, that the only new information obtained from her testimony was the identity of the person bringing illegal drugs into the jail and that he provided no information to the grand jury that was not known by the State prior to the testimony. Under these circumstances, the State sufficiently showed that it did not use Elliott’s immunized testimony or any information derived directly or indirectly from it to obtain the second indictment. The trial court therefore did not err in denying the motion to dismiss the indictment.

Decided November 8, 1993.

Douglas H. Flint, for appellant.

Roger Queen, District Attorney, William B. Britt, Assistant District Attorney, for appellee.

2. Elliott argues that the court erred in denying her motion to dismiss the indictment because the State violated OCGA § 24-9-28 by failing to file a transcript of her immunized testimony before the reindictment. This argument is without merit because that Code section contains no requirement that the transcript be filed prior to reindictment. OCGA § 24-9-28 (a) provides, “any testimony given by a person pursuant to [an order under this Code section] shall be transcribed and filed for permanent record in the office of the clerk of the court.” The State fully complied with this Code section by transcribing Elliott’s immunized testimony and filing that transcript nearly two months before trial. The court committed no error.

Judgment affirmed.

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


text:
    A93A1778.
    THE STATE v. GOLDEN.
    (437 SE2d 492)
   Blackburn, Judge.

The appellee Billy Golden was charged by accusation with driving under the influence of alcohol, driving without a driver’s license, and driving without a tag. The trial court granted Golden’s motion to suppress the evidence. On appeal, the State contends that the trial court erred in determining that no “articulable suspicion” existed to justify the initial stop by the Cobb County police officer.

Officer Bolenbaugh, with the Cobb County Police Department, testified at the motion to suppress hearing that on November 25, 1992, he was dispatched on a suspicious vehicles call to the area around Gettysburg Road and Todd Drive. Upon arrival to the area, at approximately 6:00 p.m., he noticed two vehicles parked on the side of the roadway, facing each other. Several people were standing around the vehicles. Officer Bolenbaugh then noticed a four-wheel drive pickup truck, driven by Golden, enter the street from the undeveloped lot next to the parked vehicles. Officer Bolenbaugh activated his blue lights, stopped the pickup truck, and informed Golden to wait while he spoke to the other individuals standing around the parked cars.

Officer Bolenbaugh testified that the reasons he stopped the vehicles were that he “felt it uncommon for vehicles to be parked in that area in that fashion after dark and also to see the . . . pickup truck come out of a wooded area in a residential area at night. And in [his] experience and in [his] opinion, this cast suspicion on all parties involved. And [he] felt it necessary to at least stop and identify all parties and make sure that no criminal violations had taken place.”

The testimony was disputed as to whether the incidents observed by Officer Bolenbaugh were uncommon. Golden testified that he had been testing his relatively new four-wheel drive pickup truck in the undeveloped area and that his friends were there watching. He described the area as “an old dirt pit . . . just a mud hole where we go down there and ride motorcycles and four-wheelers.” He further testified that people were there driving “about every day ... on the weekends.” Golden testified that the area was not wooded as Officer Bolenbaugh had described, but that there were some small pine trees and sagebrush. Golden also disputed that it was dark outside, explaining that he had not been using his headlights because it was not dark, only dusk.

A thorough analysis of the Fourth Amendment requirements on investigative stops of vehicles is found in Evans v. State, 183 Ga. App. 436 (2) (359 SE2d 174) (1987), where we reiterated the necessity for a determination that the totality of the circumstances created a particularized suspicion that the individual being stopped was engaged in wrongdoing. Id., quoting United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981). On the facts now before us, we have no particularized suspicion, but merely an officer wanting confirmation that no crime was committed.

Decided November 8, 1993.

Ben F. Smith, Jr., Solicitor, Elizabeth L. Guerra, Assistant Solicitor, for appellant.

Larry W. Yarbrough, for appellee.

“Where there is a conflict in the evidence on the motion to suppress, the ruling of the trial court will be upheld where there is evidence to authorize a finding in support of [its] order.” (Citations, punctuation and emphasis omitted.) State v. Holton, 205 Ga. App. 434, 437 (422 SE2d 295) (1992). The trial court did not err in granting defendant’s motion to suppress.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

       November 25, 1992, was the Wednesday before the Thanksgiving Day holiday weekend.


text:
    A93A1910.
    RIDER v. THE STATE.
    (437 SE2d 493)
   Blackburn, Judge.

A jury found defendant Anthony Rider guilty of assault. Rider now appeals his conviction asserting the general grounds, and error in the imposition of restitution.

1. Rider’s first two enumerations of error deal with the sufficiency of the evidence. The facts were contested; however, “[o]n appeal we must view the evidence in the light most favorable to the verdict. . . .” Harmon v. State, 208 Ga. App. 271, 272 (430 SE2d 399) (1993).

Rider and his co-defendant, Bobby Duane Smith, were indicted for aggravated assault based on an incident in which Charles Daniels was shot. Daniels testified that he was asleep when Rider and Smith pulled into his driveway on the night of the incident. Daniels went to the door and recognized both Rider and Smith. Daniels asked Rider what Rider was doing in his yard, to which Rider stated he had “come to whip [Daniels’] a—.” Daniels requested that they leave his yard. However, Rider walked onto the porch, where Daniels was standing, and said he was not going to leave until he had “whipped Daniels’ a—.” At this point, Smith was standing several feet behind Rider in the front yard. Daniels went into his house and locked the door. Thereafter, someone kicked and pounded on his door, “hard enough to make it look like it was coming off its hinges.” Daniels threatened to call the police, but instead, he went back outside to confront Rider, who was still on the porch. Daniels then hit Rider knocking him to the ground. Smith eventually got involved on behalf of Rider and knocked Daniels to the ground. Daniels testified that he saw Rider headed toward the road beside the car. Thereafter, Daniels and Smith exchanged gunfire in which Daniels was seriously injured.

OCGA § 16-5-20 provides that the offense of simple assault is committed when a person either: “(1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.” “[P]roof that the victim has been placed in apprehension of immediately receiving a violent injury need not necessarily be solely by reason of the victim’s testimony of his mental state but may be inferred from the conduct of the victim such as when he retreats to secure his safety. [Cits.]” Hurt v. State, 158 Ga. App. 722, 723 (282 SE2d 192) (1981).

Daniels’ testimony regarding Rider’s threats and Rider’s proximity to Daniels at the time Daniels retreated into his house, combined with the kicking on the door “hard enough to make it look like it was coming off its hinges,” presents sufficient evidence to support a conviction of simple assault. Whether Rider actually was able to hit Daniels is of no consequence. On appeal “[Rider] no longer enjoys the presumption of innocence, and we do not weigh the evidence nor judge the credibility of the witnesses. Further, we do not speculate which evidence the jury chose to believe or disbelieve.” (Citations omitted.) Harmon, supra at 272.

2. In his third enumeration of error, Rider asserts that the trial court erred by ordering him to pay restitution for Daniels’ injuries from the gunshot wounds inflicted by Smith.

Rider and Smith were indicted for aggravated assault; however, the trial court directed a verdict of acquittal as to Rider on aggravated assault, but left Rider in the case on the lesser included offense of assault. Daniels testified that the only injuries he received were as a result of the gunshot wounds inflicted by Smith. The State argues that restitution is proper because a reasonable trier of fact could conclude that the two co-defendants, Rider and Smith, had a mutual intent to commit an assault on Daniels and, therefore, Rider could be held responsible for the actions of Smith. We would agree with the State, had the trial court not granted a directed verdict of acquittal as to Rider on the aggravated assault charge. Because Rider was acquitted of the aggravated assault, the acts which caused the injuries, he cannot be held responsible for damages arising out of the aggravated assault. “The trial court was authorized to order [Rider] to make restitution only to the extent that [Daniels] may have suffered ‘damages’ as the result of [Rider’s] acts. . . .” Bottoms v. State, 194 Ga. App. 862, 863 (392 SE2d 59) (1990).

Decided November 8, 1993.

Daniel J. Sammons, Michael E. Neidenbach, for appellant.

Lydia Sartain, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Johnson, J., concur.

       Smith was found guilty of aggravated assault and is not involved in this appeal.

       Smith and Daniels were friends, however, Rider and Daniels were not friends. In fact, Rider previously had sworn out a warrant for trespass against Daniels. Additionally, on the previous day, Rider had thrown an object at Daniels’ truck, damaging the front windshield.


text:
    A93A1923.
    EVANS v. THE STATE.
    (437 SE2d 495)
   Johnson, Judge.

Elwin Allen Evans III, appeals from his convictions of two counts of aggravated sodomy, two counts of aggravated child molestation and one count of child molestation. Evans contends that the trial court erred in refusing to strike a juror for cause. During voir dire, the prospective juror stated that 21 years ago she was raped. The juror initially expressed some doubt as to whether she could put that incident aside and be impartial, but concluded that she could listen to the evidence and follow the court’s instructions. Upon further questioning, the juror said that approximately eight to ten years ago her grandmother also was raped and her aunt was the victim of an attempted rape. After again expressing some doubt about her ability to be impartial, the juror indicated that she would base her determination of Evans’ guilt or innocence on the evidence in this case. Immediately thereafter, the juror said she would do her best to be objective, but could not guarantee that her personal feelings would not interfere. She then indicated that she would not find Evans guilty based on her own experiences, but would base her decision of guilt or innocence solely on the facts in this case. The trial court denied Evans’ motion to strike the juror for cause. Finding the juror to be impartial, the court stated, “ [t] his juror has convinced me that she could listen to the evidence and make a determination upon the guilt or innocence on the evidence.”

Although it appears, from a review of the voir dire transcript, that the better practice would have been to strike the juror for cause, we are constrained to uphold the trial court’s ruling. The Supreme Court has held that “before a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. Further, the decision to strike a juror for cause lies within the sound discretion of the trial court.” (Citations and punctuation omitted.) Garland v. State, 263 Ga. 495, 496 (1) (435 SE2d 431) (1993); Johnson v. State, 262 Ga. 652, 653 (2) (424 SE2d 271) (1993). In the present case, while the juror did express some reservations concerning her ability to put aside her personal experiences, she also indicated that she would decide the case based solely on the evidence and the court’s charge. The trial court therefore did not abuse its discretion in finding the juror to be impartial and in refusing to strike her for cause. Nobles v. State, 201 Ga. App. 483, 487-488 (7) (411 SE2d 294) (1991); Scott v. State, 193 Ga. App. 577, 578-579 (2) (388 SE2d 416) (1989); but see Walker v. State, 262 Ga. 694 (424 SE2d 782) (1993).

Decided November 8, 1993.

Abbi S. Taylor, for appellant.

J. Tom Morgan, District Attorney, Anne G. Maseth, Robert M. Coker, Gregory J. Giornelli, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       The trial court ruled that the two counts of aggravated child molestation merged into the two counts of aggravated sodomy. The court imposed concurrent sentences of twelve years confinement on the aggravated sodomy counts and five years confinement on the child molestation charge.

       Evans used a peremptory strike to remove the juror from the panel.


text:
    A93A1952.
    HEARD v. THE STATE.
    (437 SE2d 496)
   Johnson, Judge.

A jury found Chappell Heard guilty of aggravated assault and criminal attempt to commit armed robbery. He appeals his conviction.

1. The State urges us to dismiss this appeal alleging that Heard’s failure to file a timely notice of appeal divests this court of jurisdiction over the case. The court entered its sentence on July 10, 1991. A motion for new trial was filed on July 17, 1991. Prior to a ruling, the motion was withdrawn on October 4, 1991. A notice of appeal was timely filed November 4, 1991. “[T]he withdrawal or dismissal of the motion for new trial ... is considered a disposition of the motion pursuant to OCGA § 5-6-38 (a), so as to commence the running of the 30-day period for filing an appeal.” Booker v. Amdur, 186 Ga. App. 276 (367 SE2d 94) (1988). The running of the 30-day period did not relate back to the date of the entry of the judgment as suggested by the State, but rather runs from the date of the withdrawal of the motion for new trial. The appeal is properly before us and will be considered on its merits.

Decided November 8, 1993.

John V. Lloyd, for appellant.

Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

2. Heard enumerates as error the trial court’s refusal to exclude evidence of a pretrial photographic identification procedure which he asserts was impermissibly suggestive. He complains that Heard’s picture had booking information visible, that a number on Heard’s photograph may have been circled, that the photo had a different colored background and that Heard’s face may have been larger than the faces in the other photos. A review of the record reveals, however, that the booking information was blocked out and the circle around the number on Heard’s photograph was not present when it was shown to the victim in the case. The six photographs contained in the array, a photocopy of which is part of the record in this case, all show black males of similar complexion, age, and all with short haircuts. “Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Citations and punctuation omitted.) Talley v. State, 209 Ga. App. 79, 80 (1) (432 SE2d 667) (1993). Also see Jackson v. State, 209 Ga. App. 53, 54 (1) (432 SE2d 649) (1993). We agree with the trial judge’s assessment that the photo array was not impermissibly suggestive. The trial court did not err in allowing evidence concerning the pretrial identification procedure.

Judgment affirmed.

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

       In December 1991, this court erroneously returned this case to the trial court because it was believed that the record had been transmitted prior to the preparation of, and without the inclusion of the transcript. The case was redocketed on June 18, 1993 at the request of the Clerk of the Superior Court of Chatham County.


text:
    A93A2328.
    GOVERNMENT EMPLOYEES INSURANCE COMPANY v. WILLIAMS.
    (437 SE2d 497)
   Blackburn, Judge.

On August 25, 1987, the appellee, Ellis Williams, completed an application for automobile insurance with the Government Employees Insurance Company (GEICO). A section of that application gave Williams the option of accepting or rejecting additional personal injury protection coverage (PIP), and Williams checked the option rejecting any additional PIP. However, following a motor vehicle collision on January 28, 1988, he requested PIP coverage totaling $50,000, which GEICO declined to pay.

Williams subsequently commenced this action against GEICO to recover additional PIP benefits, alleging that the application form did not comply with the requirements of former OCGA § 33-34-5 (b). The trial court granted summary judgment for Williams and denied GEICO’s counter motion for summary judgment, and this appeal followed.

OCGA § 33-34-5 (b) provided that each initial application for automobile liability insurance sold after November 1, 1982, “shall contain a statement in boldface type signed by the applicant indicating that the optional coverages . . . have been explained to the applicant.” That statute mandated “that for there to be an effective rejection of additional coverage, the application must (1) contain a statement that the optional coverage required by the statute to be offered has been explained to the applicant, (2) that the statement be in boldface, and (3) that the statement be signed by the applicant.” Southern Guaranty Ins. Co. v. Goddard, 259 Ga. 257, 258 (379 SE2d 778) (1989). See also Maryland Cas. Ins. Co. v. Johnson, 203 Ga. App. 381 (416 SE2d 872) (1992).

In the instant case, part of the application consisted of a two-sided form that displayed in bold capital letters the heading, “GEORGIA INFORMATION AND OPTIONAL COVERAGES OFFER.” Immediately under the heading, the form instructed that no policy could be issued unless the form was completed and signed by the applicant indicating an acceptance or rejection of the optional coverages provided on the front and reverse sides of the form.

The front side of the form contained information regarding PIP coverages and some initial information about comprehensive and collision coverage. In the section on optional PIP coverages, Williams checked the box indicating that he did not want any additional PIP coverage. The remainder of the explanation of comprehensive and collision coverages appeared on the reverse side of the form, which also contained in boldface capital letters the following certification: “I CERTIFY THAT ALL OF THE OPTIONAL COVERAGES LISTED ABOVE HAVE BEEN FULLY EXPLAINED TO ME. I UNDERSTAND THAT THIS FORM IS PART OF MY APPLICATION FOR INSURANCE, AND ANY FAILURE TO INDICATE ACCEPTANCE OR REJECTION OF ANY OF THESE OPTIONAL COVERAGES SHALL BE DEEMED A REJECTION.” Williams signed and dated the form below that certification.

Decided November 8, 1993.

Self, Mullins, Robinson & Marchetti, Pete Robinson, Thomas C. Rawlings, Angela D. Medders, for appellant.

. Kenneth M. Henson, Jr., for appellee.

We conclude that this optional coverages form fully complied with former OCGA § 33-34-5 (b). It explained the optional coverages in plain language, contained in bold print a certification of such explanations, and bore the signature of the applicant. In defending the grant of summary judgment in his favor, Williams argues that the certification was limited to the explanations regarding comprehensive and collision coverages, which were the only coverages directly “above” the certification on the reverse side of the form. However, that restrictive construction of the word “above” is inappropriate.

Generally, where construction of an insurance policy is required, provisions of an insurance policy are construed against the insurer who drafted the policy. Southern Guaranty Ins. Co. v. Goddard, supra. Nevertheless, “[n]o construction of a contract is required or even permissible when the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation. . . .” Ga. Farm Bureau Mut. Ins. Co. v. Ray, 148 Ga. App. 85, 86 (251 SE2d 34) (1978).

In this case, the format of the optional coverages offer was such that the only reasonable construction of the certification was that it pertained to all of the optional coverages listed and explained on both sides of the form. The optional PIP coverage having been included in those explanations and Williams having indicated his rejection of the explained optional coverages, the trial court erred in granting summary judgment for Williams and denying summary judgment for GEICO.

Judgment reversed.

McMurray, P. J., and Johnson, J., concur.


author: Smith, Judge.

text:
    A93A0913.
    CASTER v. THE STATE.
    (437 SE2d 608)
   Smith, Judge.

Cornell Caster was convicted of trafficking in cocaine, OCGA § 16-13-31 (a) (1) (C), and he appeals. In his three enumerations of error, he challenges the trial court’s denial of his motion to suppress the drugs found in the car he was driving at the time of his arrest.

The record reveals that Caster was driving north on 1-75 in Cherokee County when he was stopped shortly before midnight by Sgt. Robbie Bishop of the Cherokee County Sheriff’s Department. Bishop, the supervisor of the Selective Traffic Enforcement Patrol in Cherokee County, spends most of his time patrolling the 2.1 miles of 1-75 within Cherokee County at night. He testified that he had been parked on the right shoulder of the highway under a bridge, observing traffic, and pulled onto the highway to check on a fellow officer who had made a traffic stop up ahead. He was driving his own vehicle in the center lane, and stopped Caster’s car after observing it move abruptly from the right lane to the center lane immediately in front of him without signalling, almost causing a wreck.

He approached Caster’s car and asked Caster for his driver’s license and insurance card. Caster produced a driver’s license and a car rental agreement. Bishop noticed that the agreement had been issued in Missouri in the name of a third party, with Caster listed as an additional driver. Based on that, and his observations that Caster was extremely nervous; that there was a pillow in the back seat; and that aspects of Caster’s conversation regarding having attended a funeral in Atlanta were inconsistent, he explained to Caster that they had “a problem with drugs being trafficked up and down the interstate,” and asked if he could search Caster’s car. Caster denied having any drugs in his car and stated he did not mind if his car was searched. Bishop searched the trunk and bags, and looked in the back seat. He noticed that the bench seat was “kind of loose” but “didn’t carry it any further” at that time.

After giving him a verbal warning, Bishop decided to “run” Caster’s driver’s license while he continued the search. However, he admitted at some point he lost Caster’s driver’s license. He again asked Caster whether he still had permission to continue the search, and Caster agreed. He looked further in the back seat (where he found Caster’s driver’s license), and while pulling up the left side of the loose rear passenger seat, noticed a yellow package that appeared to him to be a typically wrapped kilo block of cocaine. He called for backup and pulled the package out. Two more packages were found when the seat was removed, inside plastic bags smeared heavily with mustard. Caster denied knowing anything about the cocaine.

1. Caster contends his motion to suppress was erroneously denied because the stop was pretextual in nature. He argues that he was stopped only for the purpose of looking for drugs, and that no legitimate reason existed for the stop, since he swerved into the center lane after seeing the flashing blue lights of Bishop’s colleague at the side of the road. Although the facts conflicted as to whether Caster signalled the lane change, the trial court resolved this conflict in Bishop’s favor. Since there is evidence to support this ruling, we must accept it. Williams v. State, 256 Ga. 609, 610 (1) (351 SE2d 454) (1987).

“ ‘[I]n determining when an investigatory stop is unreasonably pretextual, the proper inquiry ... is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.’ United States v. Smith, 799 F2d 704, 709 (11th Cir. 1986). In Smith, the trial court had found that no traffic violation had occurred, and the appellate court concluded that there was not even probable cause to believe that a traffic violation had occurred or was occurring. Id. at 709.” State v. Tate, 208 Ga. App. 117, 120 (430 SE2d 9) (1993). The trial court applied this established legal test to the facts and determined that the stop was not unreasonably pretextual. As pointed out by the trial court, the fact that Caster may have had an innocent reason for swerving into the center lane does not demand a finding that the stop was invalid.

Unlike Brown v. State, 188 Ga. App. 184 (372 SE2d 574) (1988), relied on by Caster, no evidence was adduced that Bishop was using a “drug courier profile” to select vehicles to stop. This court has frequently upheld traffic stops, made after the drivers had committed traffic violations within observation of law enforcement officers, that ultimately resulted in uncovering evidence of transportation of drugs. See Tate, supra at 121-122, where a number of such cases are listed. Bishop testified that he routinely issued traffic citations to drivers for offenses involving the violation of OCGA § 40-6-123, which concerns lane changes and signalling, although he did not do so this time because he did not have his citation book with him. Viewed objectively, Caster’s driving behavior, as observed by Bishop, both violated the traffic laws of this state and reasonably gave rise to an articulable suspicion that Caster may have been driving under the influence of drugs or alcohol, or that he may have fallen asleep at the wheel, rendering him a danger to others. Based upon evidence of an observed traffic violator, the trial court correctly concluded that the stop was not pretextual.

2. Our determination that the stop was not pretextual renders moot Caster’s contention that his consent to the search of his vehicle was the product of an illegal stop and insufficiently attenuated to be valid.

3. Caster also asserts, however, that the search conducted by Bishop exceeded the scope of the permission he granted, as the consent given did not extend to “dismantling” the car.

Decided September 28, 1993

Reconsideration denied November 9, 1993.

Wallace W. Rogers, Jr., W. Alan Jordan, for appellant.

Garry T. Moss, District Attorney, Gregory A. Hicks, Assistant District Attorney, for appellee.

We find no merit in this assertion for several reasons. First, the transcript belies Caster’s assertion that Bishop “dismantled” the car. Bishop testified that he had noted that the back seat was loose and, without exerting any force, he was able to lift the seat and observe the contraband. Second, in contrast to the circumstances in State v. Diaz, 191 Ga. App. 830, 831 (2), 832 (383 SE2d 195) (1989), and Amato v. State, 193 Ga. App. 459, 460 (1) (388 SE2d 54) (1989), cited by Caster, Caster clearly gave his consent to a thorough “search,” including everything found in the car, rather than merely to a “look inside” or “in” the car and its contents. See Barnwell v. State, 197 Ga. App. 116, 117 (2) (397 SE2d 717) (1990). Finally, the transcript reveals no evidence whatsoever that Caster, after having given his consent, ever objected to the extent of the search or withdrew his consent as the search proceeded. Indeed, he assisted the officer in conducting the search, and repeated his permission several times when asked. We conclude that the trial court did not err in finding that the search did not exceed the scope of Caster’s consent. See Garcia v. State, 207 Ga. App. 653, 655-656 (1) (b), (c) (428 SE2d 666) (1993).

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge.

text:
    A93A1043.
    HARDY v. THE STATE.
    (437 SE2d 790)
   Birdsong, Presiding Judge.

Michael D. Hardy appeals his convictions of kidnapping, aggravated sodomy, and attempted rape. He contends the trial court erred by refusing to excuse a juror who expressed reservations about her ability to serve, by refusing to give a charge on reconciliation of testimony, and by refusing to find that there was a merger of the kidnapping and aggravated sodomy counts. Hardy also contends the evidence is insufficient to support his conviction. Held:

1. Hardy contends the trial court erred by refusing to excuse a juror who, after the jury was selected, but before the jurors took the trial oath, informed the trial court: “I don’t want to sit on this jury. I was molested as a teenager, and I don’t want to sit on this jury.” After a dialogue with counsel, the court questioned the juror: “[Juror], here would be the question we would have. Many people that don’t want to sit on the jury, you know — [Juror]: Let me put in this. I’m in therapy right now, and I don’t know that I can handle this. [The Court]: Let me ask you this question. Here is the only question that I can consider, and this is whether or not you could be fair and impartial in the trial of the case. [Juror]: I don’t know. I don’t know what this is going to bring up about my own business. [The Court]: [Juror], that I don’t know either. I know nothing about the case. It would not be any case that would, of course, would be related to your experience. [Juror]: Yet — I prefer not. [The Court]: [Juror], I’m bound by certain rules as to what I can and cannot do, and at this point I am unable to excuse you. [Juror]: Fine.”

The record also shows that the juror did not respond affirmatively to questions asking whether she had formed an opinion as to guilt or innocence, whether she knew of any reason she would be biased in the case, either for or against the State or Hardy, and whether she was not perfectly impartial between the State and Hardy. Moreover, although the juror had earlier answered that she had been a victim of sodomy and molestation, Hardy did not exercise any form of challenge against her. Indeed, even after the juror’s comments to the court, Hardy did not seek to have her excused, but instead, sought to remove another juror. After the court refused to excuse the juror, Hardy moved for a mistrial because the juror was not excused.

“When ruling on a potential juror’s qualifications, the trial court must make a factual determination based on all the circumstances known to the court, including, but not limited to, the juror’s own opinion of his impartiality.” Lively v. State, 262 Ga. 510, 511 (421 SE2d 528). Thus, it is not controlling here that the juror did not state expressly that she could serve without reservation. Further, the juror expressed no bias against Hardy, and the basis for her concern was the effect of the trial on her personal situation. “In the present case, while the juror at issue did express some reservations concerning [her] ability to put aside [her] personal experiences, the trial court did not abuse its discretion by refusing to excuse the juror for cause.” Johnson v. State, 262 Ga. 652, 653 (424 SE2d 271).

2. As Hardy neither requested nor joined in the State’s request for a charge on reconciliation of testimony, he cannot complain that the trial court refused the State’s request for such a charge. “While present law exempts the defendant in a criminal case from the strict requirements imposed on litigants in civil cases to preserve an issue on the giving of or the failure to give instructions to the jury [OCGA § 5-5-24] this does not relieve him from the necessity of requesting instructions.” Spear v. State, 230 Ga. 74, 75 (195 SE2d 397). Accordingly, Hardy’s failure to request a charge on this issue waived any deficiency in failing to give the charge requested by the State. Sosebee v. State, 169 Ga. App. 370, 372 (312 SE2d 853).

Decided August 20, 1993

Reconsideration denied November 9, 1993

T. Neal Brunt, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, As sistant District Attorney, for appellee.

3. Hardy’s contention that the trial court erred by refusing to merge the kidnapping offense with aggravated sodomy is also without merit. “OCGA § 16-1-6 together with OCGA § 16-1-7 contain the standards for determining if one offense is included in another as a matter of fact or as a matter of law. Harmon v. State, 235 Ga. 329, 330 (2) (219 SE2d 441) (1975). They are alternative and not conjunctive. State v. Estevez, 232 Ga. 316, 319 (1) (206 SE2d 475) (1974). Paragraph (1) of § 16-1-6 sets out the rules for determining included crimes as a matter of fact and paragraph (2) treats those included as a matter of law. Stephens v. Hopper, 241 Ga. 596, 599 (1) (247 SE2d 92) (1978).” Shuler v. State, 195 Ga. App. 849, 850 (395 SE2d 26).

Under OCGA § 16-1-7 (a), “[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other.” Kidnapping (OCGA § 16-5-40) and aggravated sodomy (OCGA § 16-6-2 (a)) are not included offenses as a matter of law because the crimes have different elements and prohibit different conduct. The two crimes, however, may be included as a matter of fact when the same or less than all the facts are used to prove both crimes. OCGA § 16-1-6 (1); Hambrick v. State, 256 Ga. 148 (344 SE2d 639); Shuler v. State, supra. In this case, however, the same evidence was not used to prove both crimes. Accordingly, the trial court did not err by refusing to find a merger.

4. Hardy’s contention that the evidence is insufficient to sustain his conviction is without merit. The victim’s testimony alone was sufficient to sustain the convictions. “Having reviewed the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found the defendant guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Crawford v. State, 245 Ga. 89, 90 (263 SE2d 131) (1980).” Wither-spoon v. State, 262 Ga. 2 (412 SE2d 829).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1057.
    DUNCAN v. CROPSEY.
    (437 SE2d 787)
   McMurray, Presiding Judge.

This case is an offshoot of Rice v. Cropsey, 203 Ga. App. 272 (416 SE2d 786). In that case, Rice brought suit against Cropsey seeking damages for various acts of misconduct allegedly committed by Cropsey; Cropsey counterclaimed for damages for abusive litigation. A jury found in favor of Cropsey and awarded attorney fees, in the amount of $15,000, and punitive damages, in the amount of $125,000, against Rice. On appeal, this court affirmed the award of attorney fees, but reversed the award of punitive damages, holding that punitive damages cannot be tacked on to an abusive litigation award of attorney fees.

Following the remittitur, Cropsey sought an award of attorney fees against Vernon W. Duncan, Rice’s lawyer, pursuant to OCGA § 9-15-14. In support of the motion, Cropsey submitted the affidavit of her attorney, who deposed that his hourly rate in the case was $75; that the rate was reasonable in that it was comparable to or lower than the hourly rate “charged by other attorneys in this area in similar litigation”; and that the “jury awarded Sandra Cropsey $15,000.00 in attorney fees for attorney fees through the trial.”

A hearing was held upon Cropsey’s motion and the trial court determined that Rice’s case lacked substantial justification, was interposed for the purpose of harassing Cropsey, and was unnecessarily expanded by Duncan via “improper conduct.” Accordingly, the trial court granted Cropsey’s motion and ordered that she recover attorney fees against Duncan in the amount of $15,000. Duncan sought discretionary review. See OCGA § 5-6-35 (a) (10). We granted Duncan’s application and this appeal followed. Held:

1. Following the entry of judgment upon the jury’s verdict, Rice filed a motion for a new trial and a motion to set aside the judgment. The trial court denied the motions. Rice appealed the denial of the motion for a new trial to the Supreme Court and simultaneously she sought in this court, and we granted, a discretionary appeal from the denial of the motion to set aside. The Supreme Court transferred the appeal from the denial of the motion for a new trial to this court. See Rice v. Cropsey, supra at 272.

Former Presiding Justice George T. Smith was a member of the Supreme Court when Rice’s appeal from the denial of the motion for a new trial was transferred to this court. Along with co-counsel Anthony Kirkland, Smith now represents Duncan in this appeal.

Cropsey has filed a motion to disqualify Smith. She asserts that Smith’s subsequent representation of Duncan gives an “appearance of impropriety” and violates Code of Professional Responsibility DR 9-101 (A) which reads: “A lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity.” In support of her motion, Cropsey posits that during oral argument in the Supreme Court, Smith asked a question demonstrating he agreed with Rice’s position.

We deny the motion to disqualify Smith. In our view, Smith’s representation of Duncan did not give rise to an appearance of impropriety.

American Bar Association Opinion 49 (1931) clarifies DR 9-101 (A). Therein it is said: “A lawyer who has previously occupied a judicial position or acted in a judicial capacity, should refrain from accepting employment in any matter involving the same facts as were involved in any specific question which he acted upon in a judicial capacity and, for the same reasons, should also refrain from accepting any employment which might reasonably appear to involve the same facts.”

It cannot be said that the representation of Duncan involves, or reasonably appears to involve, the same facts as were involved in the previous appeal in which Smith acted in a judicial capacity. After all, the previous appeal involved Rice and Cropsey, not Duncan. Thus, Duncan’s conduct was not the focus of the inquiry in the previous appeal. Besides, the Supreme Court did not act upon the merits of the previous appeal. It simply transferred the case to this court.

Even if it could be said that Smith’s conduct yields an appearance of impropriety, we would be hard pressed to prohibit Smith from representing Duncan. Why? Because “[t]he case law is clear that counsel may not be disqualified on the basis of an appearance of impropriety alone. Blumenfeld v. Borenstein, 247 Ga. 406, 409 (276 SE2d 607) (1981). While there does not appear to be even an appearance of impropriety here, clearly there was no conflict of interest or any jeopardizing of client confidences coupled with it so as to outweigh a client’s [Duncan’s] interest in having an attorney of choice.” State of Ga. v. Shearson Lehman Bros., 188 Ga. App. 120, 123 (372 SE2d 276).

2. Duncan asserts, inter alia, that the evidence submitted by Cropsey in support of her OCGA § 9-15-14 motion was insufficient to establish an attorney fee award. We agree.

In his affidavit, Cropsey’s attorney simply stated that his hourly rate was $75; that that rate was reasonable; and that the jury awarded Cropsey $15,000 in attorney fees upon the trial of the case. He did not set forth the number of hours that he expended on the case; and he did not state the number of hours that were attributable to Duncan’s

Decided October 28, 1993

Reconsideration denied November 9, 1993

Barnes, Browning, Tanksley & Casurella, George T. Smith, Anthony Kirkland, for appellant.

Beck, Owens & Murray, Richard L. Collier, Eugene W. Dabbs IV, Bolton & Park, Jack L. Park, Jr., Freeman & Hawkins, Howell Hollis III, for appellee.

conduct; he did not state that an attorney fee award of $15,000 was reasonable. In sum, Cropsey’s attorney merely relied on the jury’s award to establish the attorney fee that the trial court was to assess against Duncan. This evidence was insufficient to enable the trial judge to assess the attorney fee award. See Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 852 (4) (278 SE2d 689) (no proof of value of attorney fees). Compare Augusta Tennis Club v. Leger, 186 Ga. App. 440, 443 (5) (367 SE2d 263), in which counsel failed to prove what portion of the total attorney fee was allocable to abusive litigation claim, with Campbell v. Bausch, 195 Ga. App. 791, 792 (395 SE2d 267), in which counsel produced records showing the work he undertook and the time expended, testified to his experience and hourly rate, estimated the number of hours he expended on the abusive litigation claim, and verified the reasonableness of his fee.

Could Cropsey’s counsel rely solely upon the jury’s attorney fee award to establish the reasonableness of an attorney fee award against Duncan? We think not.

OCGA § 9-15-14 (f) provides: “An award of reasonable and necessary attorney’s fees or expenses of litigation under this Code section shall be determined by the court without a jury and shall be made by an order of court which shall constitute and be enforceable as a money judgment.” This subsection makes it clear that in assessing attorney fees against a party, or the party’s attorney, pursuant to OCGA § 9-15-14, the trial judge must make an independent determination concerning the reasonableness and necessity of the fees. See Copelan v. Burrell, 174 Ga. App. 63, 64 (2) (329 SE2d 174). The trial judge cannot make such a determination unless evidence of the value of legal services is presented. Id. See Talley-Corbett Box Co. v. Royals, 134 Ga. App. 769, 770 (2) (216 SE2d 358).

Judgment reversed.

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