text:
    A93A1675.
    A93A1676.
    A93A1677.
    WRIGHT v. THE STATE. WRIGHT v. THE STATE. BELL v. THE STATE.
    (440 SE2d 27)
   Smith, Judge.

Donald Wright, Ronald Wright and Cedric Bell were convicted by a jury of aggravated assault on David Keith Salters. OCGA § 16-5-21. A motion for new trial was made and denied as to all three defendants and they appeal.

1. All three defendants enumerate as error the general grounds, either on the overruling of their motions for new trial or on the basis that the State failed to prove all the elements of the crime of aggravated assault. On appeal, the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), “is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new tria&based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

Viewed in the light most favorable to the verdict, Gazaway v. State, 207 Ga. App. 641, 642 (1) (428 SE2d 659) (1993), the evidence showed that the victim while still in the hospital identified his assailants to his aunt as “some guy named Ced Bell” and “You know, them twins . . . Ronald and Donald,” as well as a fourth person. He also identified them to his mother while in the hospital as “Ced Bell and the twins and Bo Bo.” At trial, the victim identified the three defendants in the courtroom. He testified that he was standing outside a grocery store when he was approached by “Ceds [sic] and them two twins and some other dude” that he knew by sight but not by name, who apparently objected to his talking with a young woman. The men surrounded him, Bell and the fourth man in front of him and the twins behind him, and he was struck from behind, first with a fist and then with an object that he could not identify. He did not see who struck him, but concluded that it was one of the twins because they were the people behind him. The victim acknowledged that he had been drinking on the day of the confrontation, but denied that he was drunk and insisted that he recognized his assailants. The victim was found in an unconscious state, beaten about the left side of his face. He was unresponsive when admitted to the emergency room, and was still bleeding from his face and nose when his mother visited him. The emergency room physician determined that he was suffering from a brain concussion and called in a neurosurgeon. He was released from the hospital after four days, with a diagnosis of basilar skull fracture, cerebral concussion and contusion, acute alcohol encephalopathy, and lacerations, abrasions, and contusions.

Donald and Bell complain that the elements of aggravated assault were not proved because of the victim’s failure to identify positively the person who struck him or the object he was struck with after being hit with a fist. Ronald and Bell complain that the evidence failed to support a verdict as against them. Bell also contends that newly discovered evidence required a new trial.

Aggravated assault may be committed “with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). Hands and fists may be deadly weapons depending upon the circumstances, including the extent of the victim’s injuries. Harper v. State, 152 Ga. App. 689, 691 (2) (263 SE2d 547) (1979). Even in the absence of a description of the offensive weapon, evidence as to the nature, kind, and location of wounds inflicted is sufficient to allow the jury to infer the character of the weapon. Wade v. State, 157 Ga. App. 296, 297 (277 SE2d 292) (1981).

While mere presence at the scene of a crime does not support a conviction, “ ‘ “presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” ’ [Cit.]” Kimbro v. State, 152 Ga. App. 893, 894 (264 SE2d 327) (1980). A rational trier of fact could reasonably find that the Wrights and Bell were guilty of the offense charged beyond a reasonable doubt under the standard of Jackson v. Virginia.

The newly discovered evidence alleged by Bell consists of an affidavit from an individual who stated that the victim’s aunts (including the aunt who testified at trial) told him that the victim had identified “the twins and Bo Bo” as his assailants, and that the aunts believed that a different set of twins named Shelby and Spencer “could be” the victim’s assailants. The evidence offered constitutes inadmissible hearsay, consisting as it does of an assertion of what the affiant says the victim’s aunts speculated about what the victim told them. We find no abuse of discretion in the trial court’s denial of the motion for new trial on the ground of newly discovered evidence. Wilson v. State, 193 Ga. App. 374, 375 (387 SE2d 642) (1989).

2. Bell and Donald contend that the trial court erred in denying their motion for a mistrial on the basis of the State’s failure to disclose the victim’s alleged mental retardation. Bell and Donald filed general motions under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). Approximately one week before trial, the victim’s mother told the prosecutor in a telephone conversation that her son had graduated from high school with the EMR (Educable Mentally Retarded) class. The prosecutor mentioned the mother’s statement to Bell’s counsel the day before trial. However, the prosecutor stated that no information on the victim’s competence was in the State’s file, the trial court recollected none, and there is nothing in the record before us to indicate that the State had such information. Bell and Donald moved for a mistrial based on the State’s failure to provide them with this information.

The State “is under no requirement to conduct an investigation on behalf of a defendant. . . .” Dalton v. State, 251 Ga. 641 (1) (308 SE2d 835) (1983). See Hill v. State, 187 Ga. App. 150 (1) (369 SE2d 790) (1988). There was no obligation on the prosecutor to follow up or investigate the statement made by the victim’s mother, which was provided to opposing counsel the day before trial. Even assuming that such information may be deemed exculpatory, “Brady does not require pre-trial disclosure of exculpatory material, and is not violated when such material is made available to defendants during the trial. Castell v. State, 250 Ga. 776, 781 (301 SE2d 234) [(1983)].” (Emphasis in original.) Fuqua v. State, 183 Ga. App. 414, 417 (1b) (359 SE2d 165) (1987).

Moreover, appellants have not shown how any alleged failure by the prosecution to provide this information materially affected their case. See Bacon v. State, 207 Ga. App. 39, 40 (427 SE2d 32) (1993) (witness’ criminal conviction). The trial court examined the victim with regard to his competence to testify, and appellants examined the victim’s mother regarding his education, disability income, and work history. Appellants likewise cross-examined the victim on the same issues. See Wallin v. State, 248 Ga. 29, 33-34 (6) (279 SE2d 687) (1981).

3. Donald also enumerates as error the trial court’s denial of his motion to suppress the pre-trial identification made by the victim from a police photographic line-up. Given the repeated and consistent identification of the appellants by the victim in the hospital, to the police before viewing the photographic array, and at trial, “any suggestiveness in the pretrial identification procedures employed by the police did not give rise to a substantial likelihood of irreparable mistaken identification.” Jones v. State, 251 Ga. 361, 363 (1) (306 SE2d 265) (1983). “The trial court held a pretrial hearing on the motion and, ‘(i)n the absence of evidence of record demanding a finding contrary to the judge’s determination, we will not reverse the ruling denying the suppression. The evidence was sufficient to show that this (photo spread) was not impermissibly suggestive. (Cit.)’ [Cit.]” Kelly v. State, 174 Ga. App. 424, 425 (2) (330 SE2d 165) (1985).

4. Bell enumerates as error the trial court’s failure to give four charges which he requested.

The failure to give requested instructions in the exact language requested is not a ground for new trial where the charge given substantially covers the same principles. Burris v. State, 204 Ga. App. 806, 811 (3) (420 SE2d 582) (1992). Moreover, denial of a charge request is proper where the request is incomplete on its face or inadequately adjusted to the evidence. Harris v. State, 202 Ga. App. 618, 621 (4c) (414 SE2d 919) (1992).

Bell’s requested charge number 8 is based in part upon a pattern charge. See Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II, p. 17. However, Bell does not point to anything in the record to show that the trial court expressed any opinion upon the facts of the case, the witnesses, the evidence, or the guilt or innocence of appellants. The requested charge was not adjusted to the evidence, and the trial court did not err in refusing to give it.

Bell did not offer any citation of authority to the trial court for his requested charge number 5, which consists of one sentence taken from a much longer charge on jury deliberations, instructing the jurors not to surrender their individual opinions “in order to be congenial.” The court instructed the jurors on reasonable doubt, and their duty to express their individual opinions during deliberations. The court also fully charged the jury on the presumption of innocence and substantially covered the principles of law set forth in Bell’s requested charge number 14. Finally, Bell’s requested charge number 4 with regard to the burden of proof was given almost verbatim. The trial court did not err in refusing to give these requested charges.

5. Ronald, through new counsel on appeal, raises a claim of ineffective assistance of trial counsel in violation of his state and federal constitutional rights. In order to establish ineffectiveness of counsel under Strickland v. Washington, 466 U. S. 668, 695-696 (104 SC 2052, 80 LE2d 674) (1984), the appellant must show both legal representation falling below an objective standard of reasonableness and a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Bowley v. State, 261 Ga. 278, 280 (4) (404 SE2d 97) (1991). Where new counsel undertakes the representation of appellant after a motion for new trial is denied, ordinarily the case is remanded for an evidentiary hearing and ruling by the trial court; however, “[a]s it is apparent as a matter of law that [appellant] cannot satisfy the second element of this test, we need not remand for a hearing on whether counsel was ineffective. [Cits.]” Brundage v. State, 208 Ga. App. 58, 59 (2) (430 SE2d 173) (1993).

Decided December 3, 1993

Reconsideration denied December 17, 1993.

Betty S. Frazer, for Donald Wright.

John L. Tracy, for Ronald Wright.

T. Lee Bishop, Jr., for Cedric Bell.

Britt R. Priddy, District Attorney, Johnnie M. Graham, Assistant District Attorney, for the State.

Ronald raises as ineffective assistance, first, the failure of his counsel to move for a directed verdict. Because we hold in Division 1 that the evidence satisfies the requirements of Jackson v. Virginia, this ground is insufficient as a matter of law. Second, Ronald complains of his counsel calling witnesses when the State had failed to prove its case, and failing to object to a portion of the testimony of one of them. As noted above, Ronald’s characterization of the State’s evidence is incorrect. Moreover, “[t]he decisions on which witnesses to call, whether and how to conduct cross-examinations, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client. The fact that the case could have been tried differently on behalf of the defendant does not mean that he failed to receive a vigorous and competent defense.” (Citations and punctuation omitted.) York v. State, 207 Ga. App. 494, 496 (428 SE2d 113) (1993). Ronald has failed to show how this tactical decision on the part of his counsel could have affected the factfinding process, or changed the outcome of the proceeding.

Judgments affirmed.

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


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A93A1681.
    LOPER et al. v. DRURY et al.
    (440 SE2d 32)
   Smith, Judge.

This personal injury action arises out of an intersection collision between a dump truck driven by defendant Drury and a pickup truck driven by defendant Westberry. Plaintiff James Loper was a passenger in Westberry’s truck. Loper and his wife filed this action naming as defendants Westberry and Drury, Drury’s employer and his employer’s wife, and the state Department of Transportation (DOT). Parties were added and dismissed in the course of litigation, and the defendants at trial were Westberry, Drury, Drury’s employer and his common carrier insurer, the DOT, and twelve DOT employees. On the trial of the case, the jury returned a verdict in favor of plaintiffs against defendant Westberry only. Plaintiffs’ motion for new trial was denied, and they appeal.

1. Appellants first enumerate as error the exclusion from evidence of a letter and testimony regarding that letter by its author and by appellants’ expert witness. “Questions concerning admissibility of evidence are vested in the trial court, and unless the trial court has abused its discretion, this court will not interfere.” (Citations omitted.) Estfan v. Poole, 193 Ga. App. 507, 510-511 (3) (388 SE2d 373) (1989). We hold that under the circumstances presented here, the exclusion of the letter and testimony was not error.

Whether the DOT was negligent in failing to install a left turn signal on the southbound side of the intersection was a central issue in the trial of this case. At his deposition, appellants’ expert witness, Dr. Roberts, testified that there were eight accidents at the intersection within a twelve-month period. However, on direct examination at trial, Dr. Roberts testified that he was aware of nineteen collisions in a three-year period involving southbound left-turning traffic at this intersection. His source for this information was a letter written by Linda Carver of the St. Mary’s Police Department, dated February 13, 1990. Dr. Roberts stated that the larger number of accidents supported his conclusion that a left turn signal should have been installed. While Dr. Roberts testified that it did not change his overall conclusion, he acknowledged that the higher number of accidents would trigger a DOT standard or “warrant” for a left turn signal.

The Carver letter was not identified by appellants in the pretrial order and had never been produced to opposing counsel. Dr. Roberts had been asked at his deposition to inform opposing counsel of any additional information supporting his opinions. However, the letter was not provided to Dr. Roberts until April 7, 1992, the day before he testified. Counsel for the DOT and its employees objected to the use of the letter and moved to strike Dr. Roberts’ testimony regarding it.

The letter itself does not provide any details or identifying numbers for any accident reports other than that for the collision involved in this case; it simply lists a total number opposite the years 1987, 1988, and 1989 for “accidents involving left turns southbound.”

The trial court ordered the parties to take Carver’s deposition during a recess to determine the factual basis underlying her letter. Carver was directed to bring the referenced accident reports with her to the deposition. At the deposition, Carver testified that “to the best of her knowledge” she or someone at her direction had retrieved the police department’s accident reports in preparing her summary letter in 1990. However, she had little or no independent recollection of the underlying reports and could not testify that the reports she brought to the deposition were the same as those used to prepare her letter. She testified that she was unable to gain access to some storage areas on such short notice and that some reports could be in the hands of other police personnel.

The letter refers to nineteen accidents involving left turns southbound at the intersection, but the witness produced eighteen reports, only five of which involved a southbound left-turning vehicle. Carver denied that some of these were the reports on which the letter was based, and she stated that she could not tell if she had located all the relevant reports. She could testify only that to the best of her knowledge some of the reports she brought to the deposition “could have been” the reports relied upon in her letter.

When the deposition was complete, the trial court again conferred with counsel. Counsel for appellants asserted that Carver would “stand by” her number of nineteen accidents, and the trial court allowed appellants’ expert to testify to the contents of the Carver letter subject to its being stricken if appellants were not able to support the contents. Thereafter a portion of the Carver deposition was read to the jury by appellants, and the letter was admitted into evidence and published to the jury.

However, after review of the remainder of the deposition during appellees’ case, the trial court concluded that Carver had failed to show the underlying basis for the report in her letter of nineteen southbound left turn accidents. The court therefore ordered the deposition testimony of Carver on direct, the letter, and that portion of Roberts’ opinion based upon the letter stricken from the record. The trial court also instructed the jurors to disregard the letter and testimony with regard to the number of accidents occurring at the intersection, with the caution to consider the remainder of Dr. Roberts’ testimony and opinions as they would those of any other witness. The jurors were then asked if any one of them was unable to disregard the stricken material, and none responded.

(a) We first address the Carver letter, which appellants contend should have been admitted as a business record. OCGA § 24-3-14 (b) provides: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.” The letter is not a business record, because it was not prepared contemporaneously with the events in question but as much as three years later in response to a letter from appellants’ investigator. It is not a record of any act, transaction, occurrence, or event but merely a compilation of figures furnished by another, and hence not a business record. Smith v. Smith, 224 Ga. 689, 690 (1) (164 SE2d 225) (1968). Indeed, we note that appellants’ counsel originally contended the letter was attorney work product.

Moreover, a summary of business records is properly admitted on two conditions: that the original records are voluminous and contain substantial amounts of irrelevant matter; and that the originals are available to the court and to the parties. Stewart v. State, 246 Ga. 70, 73-74 (3) (268 SE2d 906) (1980); Lawhorn v. State, 200 Ga. App. 451, 456 (4) (408 SE2d 425) (1991). The original documents underlying the letter here were not voluminous, consisting as they apparently did of nineteen “Georgia Uniform Motor Vehicle Accident Report” forms. Nor were these original documents available to the court or to the parties. The inability of Carver to locate or identify the underlying documents and the divergence from the purported subject matter of most of the documents she did produce are circumstances that graphically illustrate the danger of admitting summaries of material not available to the court and the parties. The trial court did not abuse its discretion in excluding the letter and Carver’s deposition testimony on direct examination.

(b) Appellants next contend that their expert properly could base an opinion upon the contents of the excluded letter. OCGA § 24-9-67 provides: “The opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may tie given on the facts as proved by other witnesses.” (Emphasis supplied.) “Generally, an expert cannot state his opinion based upon facts not within his personal knowledge which are not otherwise admitted in evidence. [Cit.] In response to a hypothetical question, an expert may assume facts not within his personal knowledge, as long as the assumed facts are placed in evidence by the testimony of other witnesses or by other legal means. [Cit.] ‘On the other hand, an expert can give an opinion based upon facts which he personally observes. And where an expert personally observes data collected by another, his opinion is not objectionable merely because it is based, in part, upon the other’s findings.’ . . . [Cit.]” Brown v. State, 206 Ga. App. 800, 801 (427 SE2d 9) (1992). However, “not even an expert can give an opinion based upon reports which have been prepared by others and which are not in evidence. [Cit.]” Fidelity &c. Ins. Co. v. Cigna/Pacific Employers Ins. Co., 180 Ga. App. 159, 162 (1) (348 SE2d 702) (1986). See also Doctors Hosp. of Augusta v. Bonner, 195 Ga. App. 152, 159 (3) (392 SE2d 897) (1990).

In quoting in their brief from King v. Browning, 246 Ga. 46 (268 SE2d 653) (1980), appellants omit the important qualification stated in the same paragraph that “an expert witness ... is entitled to testify as to his opinion on the facts as proved by other witnesses.” (Emphasis supplied.) 246 Ga. at 47. In King, a surveyor’s plat included written conclusions regarding boundaries which apparently relied at least in part upon hearsay. However, the surveyor and his employee testified without objection to the relevant facts underlying those conclusions, including having heard the parties reach an agreement on the boundary line. Id. The underlying facts were thus present without objection on the record, forming a proper foundation for the opinion.

There are a number of exceptions to the general rule excluding reliance on matters not in evidence, particularly in the area of expert testimony as to value and mental condition. See, e.g., Redwing Carriers v. Knight, 143 Ga. App. 668, 672 (6) (239 SE2d 686) (1977); Haynes v. Huff, 165 Ga. App. 192, 193 (299 SE2d 902) (1983). Other exceptions exist for scientific works and other learned sources of information pertaining to the expert’s profession, Rogers v. State, 202 Ga. App. 595, 597 (2) (415 SE2d 49) (1992); Inman v. State, 195 Ga. App. 805, 806 (2) (395 SE2d 52) (1990), as well as for statistics and government reports generally recognized as accurate and reliable in the expert’s field, Woods v. Andersen, 145 Ga. App. 492, 494 (3) (243 SE2d 748) (1978).

Dr. Roberts’ reliance on the letter does not fall within any of these recognized exceptions. The letter is an inadmissible summary of matter not in evidence, containing the opinions and conclusions of Carver in selecting purportedly relevant documents which she cannot now retrieve or recollect. The letter’s contents are not within Dr. Roberts’ own knowledge or recognized scientific authority in his field, but instead concern a disputed fact which a timely search and retrieval of the relevant accident reports would have resolved. Dr. Roberts did not “personally observe” any data; he read from an unsubstantiated summary provided to him by appellants’ counsel. Allowing an expert witness to testify as appellants propose would permit the admission of hearsay, speculation, and unsupported opinion, by the simple expedient of asking an expert to read the inadmissible matter into the record or testify to it while asserting that he relied upon it. The trial court did not err in excluding the testimony of Dr. Roberts with respect to the number of accidents noted in the letter.

2. Appellants contend that the trial court erred in its curative instruction to the jury concerning the letter and witnesses’ testimony regarding its contents. Appellants further contend that the curative instruction on the letter was lengthier and a “face slap” to appellants, when compared with the curative instruction given to the jury regarding another accident summary prepared by the DOT. The combined effect of these two charges, according to appellants, constituted an impermissible comment by the trial court on the evidence as forbidden by OCGA § 9-10-7.

However, as discussed above, appellants elicited testimony from their expert witness regarding the letter without producing it in discovery or listing it as an exhibit in the pretrial order. Appellants had neither shown the letter to their expert witness nor obtained the underlying documents in the two years between the date of the letter and the trial of this case. Faced with this situation in the midst of a week-long trial, the trial court conferred extensively with counsel and ordered that Carver’s deposition be taken to establish the contents of the underlying documents. When the deposition failed to establish the contents or even the existence of documents supporting the assertions in the letter, the trial court struck the letter and the testimony pertaining to it.

The curative instruction on the letter was necessarily lengthy because it involved the testimony of two witnesses and an exhibit that had already been admitted into evidence and published to the jury. In contrast, the curative instruction regarding a DOT computer accident printout concerned the testimony of a single witness, and the documents in question were never admitted into evidence or displayed to the jury. Moreover, the trial court did not admonish appellants’ counsel during the curative instruction and did state in the presence of the jury that the DOT would be required to abide by the same ruling as appellants.

“ ‘The decision whether to grant a mistrial or give a curative instruction ordinarily rests in the trial judge’s sound discretion. (Cit.)’ [Cit.]” Patterson v. State, 192 Ga. App. 449, 452 (3) (385 SE2d 311) (1989). Such rulings will not be disturbed unless the trial court’s discretion is manifestly abused, whether in ruling on a motion for mistrial or in the extent of the curative action, such as admonishing the witness. See Dept. of Transp. v. Lowery, 163 Ga. App. 114, 117 (2) (291 SE2d 573) (1982). Here, appellants’ counsel stated that he would prefer a curative instruction to a mistrial. We do not find that the wording of the trial court’s curative instructions constituted a manifest abuse of discretion. Moreover, the trial court included in its final charge to the jury an additional curative instruction that “anything the Court did or said during the trial of this case was not intended to and did not intimate, hint or suggest to you which of the parties should prevail in this case.” Neither of the curative instructions complained of contains any wording so compellingly erroneous as to preclude the jury from following this curative instruction. See Harris v. State, 202 Ga. App. 618, 619 (3) (a) (414 SE2d 919) (1992).

3. Appellants enumerate as error the exclusion from evidence of a letter from an employee of the DOT to the Federal Highway Administration, showing the estimated total cost of the intersection construction to be $3,757,600. Appellants cite no legal authority for the relevance of this letter beyond the statute and cases on general principles of relevance, but they contend the letter shows additional engineering studies could have been included for a fraction of the total cost of the intersection.

No evidence or testimony was offered with regard to the calculation or source of these figures, nor what proportion of funds was allocated to engineering as opposed to materials, labor, and other necessary components of the construction cost. Counsel for appellants and for the DOT agreed, that there was no contention that the cost of additional studies was a factor in the design. Particularly- in view of the designation of these figures as “estimated” costs, the letter appears to have no relevance to any disputed issue in this case. OCGA § 24-2-1. Moreover, evidence of the parties’ “worldly circumstances” is generally inadmissible. See Northwestern Univ. v. Crisp, 211 Ga. 636, 641 (2) (88 SE2d 26) (1955).

4. Appellants next contend that the special verdict form employed by the trial court was erroneous, because it failed to offer the option of returning a verdict against the DOT without returning a verdict against one or more individual employees. They assert that the form was prejudicial because it would be easier for the jury to return a verdict against the “DOT and its employees” collectively, rather than having to “single out the guilty party.”

Appellants ignore the controlling authority of Price v. Dept. of Transp., 257 Ga. 535 (361 SE2d 146) (1987): “This is an action against both employees of DOT and DOT itself. DOT is a defendant and liable in tort, if at all, only because of the doctrine of respondeat superior. That is why it is a defendant in this action.” 257 Ga. at 536. In order to avoid the defense of sovereign immunity applicable to the DOT, the individual employees must be named as defendants. 257 Ga. at 537-538. Under the doctrine of respondeat superior, in order to sustain a verdict against the employer alone there must be negligence by the employer independent of its employee’s actions; otherwise a verdict against the employer would be inconsistent, illegal, and void. Duke Trucking Co. v. Giles, 185 Ga. App. 833, 836 (2) (366 SE2d 216) (1988). Appellants have not pointed to any evidence or legal authority under which the DOT could be held directly liable, apart from the actions of its named employees who “designed, built and maintained” the intersection. This enumeration of error has no merit.

5. Appellants similarly contend that the special verdict form should have allowed the jury the option of returning a verdict against Drury’s common carrier insurer without finding Drury or his employer liable. Appellants cite no authority for this contention, which is foreclosed by the recent decision in Andrews v. Yellow Freight System, 262 Ga. 476 (421 SE2d 712) (1992). In that case, the common carrier insurer was erroneously dismissed from the action. The Georgia Supreme Court did not require the granting of a new trial, observing: “[U]nder the Motor Carrier Act, OCGA § 46-7-1 et seq., the insurance carrier is not, in reality, a separate party for purposes of liability, but, rather, is equivalent to a provider of a substitute surety bond, creating automatic liability in favor of a third party who may have a claim for damages for the negligence of the motor common carrier. [Cit.] The plaintiff has no separate claim for damages against the motor carrier’s insurer. The purpose of permitting joinder of the Insurance Company in a claim against common carrier is to further the policy of the Motor Carrier Act, that is, to protect the public against injuries caused by the motor carrier’s negligence. [Cits.] The provision allowing joinder of the insurer is not intended, in any respect, to enhance the value of a third party’s claim for damages.” (Emphasis in original.) Id. The special verdict form provided for defendants Drury, Thornton and United States Fidelity & Guaranty Company did not constitute error.

6. In appellants’ final enumeration of error, they complain that the trial court erroneously struck their pastor, Kenneth Wilbanks, from the jury venire. On voir dire, Rev. Wilbanks testified that appellants are members of his congregation and that he had discussed the case in pastoral visits with them. Rev. Wilbanks agreed that if he were one of the appellees, he would not feel comfortable with someone like himself on the jury panel. At that point in the voir dire, the trial court excused Rev. Wilbanks for cause.

“In order to insure impartiality of prospective jurors [cit.], the trial court is vested with great latitude in exercising its discretion to determine whether an individual juror can decide the case without bias and in accordance with the evidence. [Cit.] Unless there is a manifest abuse of that wide discretion, the determination by the trial court will not be disturbed. [Cit.] To achieve impartiality, the trial court did not err in striking the prospective juror. [Cit.]

“Furthermore, while a party is entitled as a matter of right to an array of impartial jurors to which peremptory challenges may be directed, ‘a party is entitled to no more. Having no legal right to a jury which includes those who because of scruple or bias he thinks might favor his cause, he suffers no prejudice if jurors, even without sufficient cause, are excused by the judge. Only if a judge without justification overrules a challenge for cause and thus leaves on the panel a juror not impartial, does legal error occur. . . . The entitlement of a party extends only to a fair and impartial jury; the right to reject, not select.’ [Cit.]” Southern R. Co. v. Minor, 196 Ga. App. 183, 185 (3) (395 SE2d 845) (1990). There was no error in striking appellants’ pastor from the panel.

Judgment affirmed.

Cooper, J., concurs. Beasley, P. J., concurs in the judgment only.

Decided December 3, 1993

Reconsideration denied December 17, 1993

Hallman & Associates, Ronald W. Hallman, Sutton & Associates, Berrien L. Sutton, for appellants.

Whelchel, Brown, Readdick & Bumgartner, J. Thomas Whelchel, B. Kaye Katz, Barrow, Sims, Morrow & Lee, Jordan D. Morrow, for appellees.


author: Andrews, Judge.

text:
    A93A1692.
    WILSON v. THE STATE.
    (439 SE2d 701)
   Andrews, Judge.

Wilson was convicted of ten counts of theft by taking, OCGA § 16-8-2, and appeals from the entry of judgment on the conviction and the denial of his motion for new trial.

Counts 1 through 4 and 6 through 9 of the indictment alleged that on dates between November 11, 1989 and May 6, 1991, Wilson “being in lawful possession of United States currency received from [eight named individuals], the property of the City of Fort Oglethorpe, Catoosa County, Georgia, with a value less than five hundred dollars ($500.00), appropriate said property with the intention of depriving said owner of said property, said defendant, at the time of the appropriation, being a government employee acting in breach of his duties.” Count 5 alleged a value of more than $500 received from another individual. Count 10 alleged that Wilson “between November 11, 1989 to May, 1991, did unlawfully, being in lawful possession of United States currency, the property of the City of Fort Oglethorpe, . . . with a value greater than five hundred dollars ($500.00), appropriate said property with the intention of depriving said owner of said property.” Counts 5 and 10 did not include the language “being a government employee acting in breach of his duties.”

The State’s evidence was that Wilson was employed by the Town of Fort Oglethorpe to collect cash bonds and fines; that from the individuals named in Counts 1 through 9 Wilson collected cash bonds or fines, totaling less than $5,000, and appropriated same to his own use; and, that the total loss to Fort Oglethorpe was over $56,000. Wilson’s statement to the police confirmed that he received and appropriated the cash but believed it was about $10,000 or $12,000.

1. The first enumeration is that the court erred in not granting Wilson’s motion for directed verdict on the grounds that there was no evidence showing Wilson had the legal authority to receive the funds he allegedly converted and therefore was in “lawful possession” as alleged in the indictment; there was no evidence to show that the funds converted belonged to the Town of Fort Oglethorpe; and therefore there was a fatal variance between the allegata and probata.

The question for this court in reviewing the denial of a motion for directed verdict under OCGA § 17-9-1 is whether the evidence was sufficient under Jackson v. Virginia, 443 U. S. 307, 310 (99 SC 2781, 61 LE2d 560) (1979); Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436) (1984).

In his motion for directed verdict, Wilson requested the court to take judicial notice of the local laws establishing the Town of Fort Oglethorpe.

The Town of Fort Oglethorpe was incorporated by Ga. L. 1949, p. 703 et seq. The act provided for the election of a mayor and aider-men. Sec. 5, p. 707. Further, in Sec. 20, p. 713, the office of “Clerk and Treasurer” was established. It stated that “the Mayor and Aldermen of said town annually at their first meeting in January . . . shall elect a Clerk and Treasurer, who may be one of the Aldermen . . . and whose terms . . . shall be for two years (2) and . . . [h]e shall collect all municipal taxes, . . . and collect all license fees and other moneys due the town. . . . He shall be the custodian of the funds. ...”

Section 21 provided for the election of a Marshal who would be the “chief police” and who “shall collect all fees imposed by the Mayor’s Court. ...” Section 23 (a) provided for the mayor’s court with jurisdiction to try offenders against the laws and ordinances of the town within the corporate limits and, if a State law had been violated, to bind the accused over to the proper court and assess bail. The mayor was to sit as presiding officer and the “Clerk of the town shall act as Clerk of said court and the Marshal or other police officers of said town shall attend said court.” Subsection (h) provided that “[s]aid court shall have the power to fix bail, accept bonds for the appearance ... of offenders for trial, and if such offenders shall fail to appear . . . the cash so deposited shall be by order of the officer presiding declared forfeited to the Town of Fort Oglethorpe.”

Section 27 provided that “the Marshal or other police officer . . . shall have the right, power and privilege to release any person arrested ... for an offense against the laws ... of said town upon said person giving bond to be approved by the Marshal or Mayor of said town . . . conditioned to pay the obligee ... an amount fixed by the Marshal or Mayor of said town. . . .”

From the foregoing, Wilson argues that the State did not prove he was a person authorized to accept cash bonds and fines and therefore did not prove that he came into “lawful possession” of the cash and that the cash was “property of the City of Fort Oglethorpe.”

“Where cash bonds are not lawful, the political subdivision can have no title to or legal interest in the property. Holt v. State, 11 Ga. App. 34 (74 SE 560); Washburn v. Foster, 87 Ga. App. 132 (1) (73 SE2d 240); Scarboro v. State, [207 Ga. 449 (2) (62 SE2d 168)].” Land v. State, 103 Ga. App. 496, 497 (1) (119 SE2d 809) (1961).

All of these cases stand for the proposition that where the political subdivision is not authorized to accept cash bonds it cannot have a property right in that cash it accepts. It is not disputed that Fort Oglethorpe had the authority to accept cash bonds. These cases do not stand for the proposition that cash bonds accepted on behalf of a political subdivision by persons unauthorized to do so by internal authorization are not property of the political subdivision.

Nor do any of the cases cited stand for the proposition that such receipt is not “lawful possession” within the meaning of OCGA § 16-8-2. “Lawful possession” therein simply means that the property did not come into the thief’s hands initially by theft. See Lawhorn v. State, 200 Ga. App. 451, 454 (1) (408 SE2d 425) (1991).

Further, public officials are presumed to do their duty. Thus, the state was entitled to the unrebutted presumption that the appropriate officials of Fort Oglethorpe had authorized Wilson to collect fines and bonds in accordance with the requirements of the charter.

The evidence was legally sufficient. Lawhorn, supra at 456 (5).

2. In his second enumeration, Wilson alleges that the trial court erred in charging the entirety of OCGA § 16-8-2.

The court charged the jury that “I instruct you that theft by taking is defined as follows, a person commits theft by taking when he unlawfully takes, or being in lawful possession thereof, unlawfully appropriates any property of another, with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.”

“It is not usually cause for a new trial that an entire Code section is given . . . even though a part of the charge may be inapplicable under the facts in evidence.” Keller v. State, 245 Ga. 522 (265 SE2d 813) (1980). In this case the lack of any evidence or contention that Wilson committed the theft in any way or manner other than that alleged in the indictment eliminates any reasonable probability that the jury convicted Wilson of committing theft by taking in a manner that was not that alleged in the indictment. Thus, any possible error resulting from the trial court’s inclusion of the extraneous words is harmless beyond a reasonable doubt. Childs v. State, 257 Ga. 243, 253 (357 SE2d 48) (1987); compare Walker v. State, 146 Ga. App. 237, 239 (246 SE2d 206) (1978).

Decided December 1, 1993

Reconsideration denied December 17, 1993

Harriss, Hartman, Aaron, Wharton & Boyd, John L. O’Dell, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Michael R. McCarthy, Assistant District Attorney, for appellee.

3. Based on our holding in Division 1, there was no error in the court’s failure to give Wilson’s requests to charge as argued in his third enumeration.

4. Wilson contends that the court’s failure to dismiss Count 10 of the indictment was error.

Wilson filed a pre-trial motion to dismiss, contending that the indictment was vague and ambiguous and failed to sufficiently apprise Wilson of the charges against him.

“The true test of the sufficiency of an indictment that will withstand a general demurrer is laid down by Judge Bleckley ... as follows: If all the facts which the indictment charges can be admitted, and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premised, the guilt of the accused follows as a legal conclusion, the indictment is good. (Cit.) Gower v. State, 71 Ga. App. 127, 128 (1) (30 SE2d 298) (1944). See State v. Eubanks, 239 Ga. 483, 485 (238 SE2d 38) (1977). ... An indictment which charges the offense in the language of the defining statute and describes the acts constituting the offense sufficiently to put the defendant on notice of the offense with which he is charged survives a general demurrer. Gaines v. State, 80 Ga. App. 512, 517 (56 SE2d 772) (1949). . . . There was no error in overruling this demurrer.” (Punctuation omitted.) Drewry v. State, 201 Ga. App. 674, 675 (411 SE2d 898) (1991).

Finally, Wilson argues in this court that the trial “court should have, sua sponte, instructed the jury that it should only consider the amount alleged in Count 10 as it related to any funds not covered by the other nine counts.” Arguments not raised in the trial court will not be considered by this court. Fancher v. State, 190 Ga. App. 438 (378 SE2d 923) (1989).

Judgment affirmed.

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

       This provision was amended to provide for the appointment of a judge by the mayor and aldermen to preside. Ga. L. 1973, pp. 3065, 3066.


author: Blackburn, Judge.

text:
    A93A2194.
    BRAYMAN v. DELOACH et al.
    (439 SE2d 709)
   Blackburn, Judge.

The appellant, C. B., a minor, by her next friend and natural guardian, Shirley Brayman, her mother, filed the instant action for damages based upon state and federal law against appellees Glynn County, James Miller and Barbara Little, and Deborah Deloach, based upon a lesbian sexual relationship which developed between Deloach and the minor child following the minor’s participation in recreation programs sponsored by the county. Glynn County, Miller, and Little collectively responded to the complaint and asserted several defenses. Following the commencement of discovery, Glynn County, Miller and Little moved for summary judgment. After a hearing, the trial court granted the motion in favor of appellees Glynn County and Miller on both the state and federal claims, and in favor of appellee Little solely on the state claim. This appeal followed. In Brayman’s sole enumeration of error, she challenges the trial court’s grant of summary judgment in favor of the appellees.

Viewing the facts in the light most favorable to the non-moving party, Lau’s Corp. v. Haskins, 261 Ga. 491 (4) (405 SE2d 474) (1991), the record shows that Deloach and Little were employed with the Glynn County Parks & Recreation Department under the supervision of Miller, the director of the department, at all times relevant to this action. C. B. met Little and Deloach during the spring of 1989 as a result of C. B.’s participation in a recreation softball program sponsored by the county. Deloach later began showering C. B. with various gifts as the two developed a close friendship which included frequent visitation and telephone communication. Little and Deloach befriended C. B.’s parents and younger brother, and were invited to the Braymans’ home on several occasions. Mrs. Brayman even insisted that C. B. share a room with Deloach on a road trip with the softball team in 1989 as she trusted Deloach to supervise the minor’s activities.

Thereafter, the Braymans noticed that C. B. had been spending a great deal of time with Deloach and her contact with friends of similar age had diminished. In January 1990, Mrs. Brayman met with Deloach and another county employee and requested that Deloach cease her interaction with C. B. At that time, Deloach indicated that she could not do so. In February, at Brayman’s request, a certified letter was sent to Deloach by Brayman’s attorney instructing her to refrain from communicating with C. B. At that point, many of the gifts given to C. B. by Deloach were returned to Deloach. However, C. B. and Deloach continued to see and communicate with each other.

In June 1990, the Braymans made their first complaint to Miller and informed him of Deloach’s continued association with and undue influence over their daughter, but denied any sexual involvement between the two. In addition to recommending that the Braymans prosecute Deloach if they suspected any wrongdoing, the next day, Miller questioned Deloach on the nature of her relationship with C. B. Although Deloach indicated that C. B. had made allegations of physical abuse against her parents, and that she was attempting to assist her with the problem, Miller instructed her to refrain from communicating with the minor. Deloach denied that the two were sexually involved. It was not until January 30, 1991 that Miller was informed of the sexual relationship that had developed between C. B. and Deloach based upon taped conversations between the two. Deloach was immediately suspended pending an investigation of the allegations, and a hearing was subsequently scheduled on her proposed discharge based upon the county’s concern with the protection of minor participants in its recreational programs. Deloach resigned prior to the scheduled hearing.

In her deposition testimony, C. B. admitted that Little often facilitated the communication between the two by providing transportation, conveying messages, and transferring her telephone calls to Deloach although the recreation personnel were admonished from promoting communication between the two. It is undisputed that the actions of Little and Deloach were not done under the direction of or ratified by the county.

1. In Brayman’s state law claim, she asserts that “Deloach began to have sexual relations with [C. B.] and contributed to the delinquency of [C. B.] on numerous occasions over the past two years.” Brayman further alleges that “Little aided and abetted the Defendant Deloach and contributed to the delinquency of [C. B.] on numerous occasions over the past two years,” while the two were under the supervision of Miller as the director of the department. Hence, Brayman has asserted an action sounding in tort based upon the alleged seduction of her minor daughter by Deloach.

Under OCGA § 51-1-16, “[t]he seduction of a daughter, unmarried and living with her parent, whether followed by pregnancy or not, shall give a right of action to the father or to the mother if the father is dead, or absent permanently, or refuses to bring an action.” (Emphasis supplied.) “The statute, on its face, provides that only a parent of a seduced daughter has the requisite standing to bring an action for seduction. Therefore, [C. B.], the alleged victim of seduction, cannot bring a valid cause of action under [the statute] in her own name through [Mrs. Brayman] ‘as next friend.’ Accordingly, we find that [Brayman] cannot pursue a cause of action on behalf of her daughter. . . .” Franklin v. Hill, 203 Ga. App. 724, 725 (1) (417 SE2d 721) (1992). Moreover, there is no evidence in the record on appeal that Mr. Brayman has refused to bring an action based upon the seduction of his daughter. In fact, Mr. Brayman actively participated in the discovery process in the case sub judice. Consequently, Mrs. Brayman lacks standing to assert this cause of action in her own right or on behalf of her daughter, and the appellees were entitled to summary judgment as a matter of law.

2. Brayman also asserts liability predicated on 42 USC § 1983. “42 USC 1983 creates a cause of action, cognizable in the courts of this state, based upon acts which are in implementation of an intentional policy, adopted or ratified by the governing body of a public agency, which acts work deprivation of a constitutional right.” (Citation and punctuation omitted.) Poss v. City of North Augusta, S.C., 205 Ga. App. 894, 895 (2) (424 SE2d 73) (1992). “What is required to be prove [n], directly or circumstantially, is that a governing body has worked constitutional deprivation of a citizen pursuant to an impermissible or corrupt policy which is intentional and deliberate.” (Citation and punctuation omitted.) Kilgo v. Dept. of Corrections, 202 Ga. App. 50, 51 (413 SE2d 507) (1991). “ ‘(A) local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom . . . inflicts the injury that the government as an entity is responsible under § 1983.’ [Cit.]” Poss, supra; Jarrett v. Butts, 190 Ga. App. 703, 707 (379 SE2d 583) (1989).

In the case sub judice, “the record is barren of any evidence of implementation of an intentional policy or a constitutional deprivation resulting from an intentionally corrupt or impermissible policy so as to find a cause of action under 42 USC § 1983.” (Citations and punctuation omitted.) Pinkston v. City of Albany, 196 Ga. App. 43, 47 (395 SE2d 587) (1990). In fact, Brayman has not alleged that-C. B. has been harmed by the county’s enforcement of or implementation of an impermissible policy. Brayman’s cause of action against the county rests solely upon the county’s alleged “responsibility] for the acts, omissions, wilful indifference to consequences, and callous disregard of the consequences of its agents and employees.” Inasmuch as governmental entities cannot be held vicariously liable for the actions of their employees, the trial court did not err in granting summary judgment in favor of the county on Brayman’s 1983 claim.

We further agree with the trial court that Miller was likewise entitled to summary judgment on the 1983 claim. Brayman specifically alleged in her complaint that Miller, with knowledge of defendant Deloach’s conduct, “failed to properly investigate the problem with [C. B.], failed to control and prevent the continued harm to [C. B.] by Defendant Little and Defendant Deloach generally and generally exhibited an indifference to the consequences and callous disregard of the rights of [C. B.] and the harm being done to [C. B.]” On the contrary, the record indisputably shows that once Miller was informed of Deloach’s sexual involvement with C. B., Deloach was immediately suspended, and two days later, discharge was recommended based upon the county’s concern with the protection of the participants in its recreational programs. Moreover, there is no evidence that Miller was informed of Little’s facilitation of communication between C. B. Assuming arguendo that Miller had failed to properly investigate the allegations made against Deloach, “even negligence in the performance of official duties, do[es] not warrant redress under 42 USC § 1983.” (Citation and punctuation omitted.) Forney v. Purvis, 190 Ga. App. 192 (1) (378 SE2d 470) (1989). Accordingly, we must conclude that the trial court’s grant of summary judgment in favor of Miller and Glynn County and partial summary judgment in favor of Little was proper.

Decided December 2, 1993

Reconsideration denied December 17, 1993

Richard D. Phillips, for appellant.

Robert L. Russell III, W. Gary Moore, for appellees.

Judgment affirmed.

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

       Although the complaint was filed on April 5, 1991, Deloach responded to the complaint on July 29, 1992, within 30 days after service of the complaint on June 29, 1992.

       Neither Deloach nor Little have appealed the trial court’s order.

       Although Brayman asserts in her complaint that the appellees are liable for damages based upon assault, she has failed to allege a cause of action based upon this tort in her complaint, and this issue was not passed upon by the trial court. Accordingly, this issue is not ripe for appellate review. Devins v. Leafmore Forest Condo. Assn. of Owners, 200 Ga. App. 158 (3) (407 SE2d 76) (1991).


text:
    A93A0021.
    In re WILLIAM E. SMITH, SHERIFF.
    (439 SE2d 725)
   Smith, Judge.

William E. Smith, the Sheriff of Camden County, appeals from an order of the Camden County Superior Court holding him in contempt for his failure to produce a document pursuant to court order.

The order in issue was entered in the criminal case of one Bobby Graham, then an inmate at the Camden County jail. Graham, a trusty, was involved in an automobile accident on June 15, 1991, while driving a car he had been washing at the jail. Following this incident, concerns were raised that Graham may have been intoxicated at the time of the accident; that Sheriff Smith sometimes arranged for Graham to perform work outside the jail for pay; that earlier on the day of the accident, Smith had personally taken Graham to wax floors at a private home on Jekyll Island, where Graham had consumed alcoholic beverages; and that on the ride back to the jail from Jekyll Island, Smith had allowed Graham to purchase beer with his pay. When these concerns arose, Smith sought the advice of private counsel. Thereafter, when Graham was ordered transferred to another jail without a stated reason, Smith became concerned about protecting himself from possible liability in any civil action that might arise regarding the accident. He again conferred with counsel, who advised him to obtain a statement from Graham regarding what had occurred on the day of the accident. Such a statement was taken on July 31, 1991 by sheriff’s deputies. However, the statement was not placed in Graham’s official file. It was kept by Smith in his van, and a copy was sent to Smith’s counsel in Atlanta, at his request.

The sheriff was found in contempt of an order that was signed by a superior court judge on February 21, 1992. That order required the sheriff’s office to turn over to the Georgia Bureau of Investigation (GBI) all statements of witnesses in the possession of any sheriff’s office personnel, as well as any written or oral statements made by Graham while in custody at the Camden County jail and in the possession of any employee of the sheriff’s office, including the sheriff. The order was delivered by agents of the GBI to the sheriff’s office. Because the sheriff was out when GBI agents arrived to serve the order, it was handed to a deputy sheriff, who arranged for Graham’s file to be copied and turned over. Graham’s statement in issue, however, was not in the file and was not turned over to the GBI. GBI agents learned that such a statement existed, but they were unable to locate the statement even after executing, in March 1992, a search warrant obtained in the course of an investigation into the use of inmate labor.

A citation for contempt was drafted and signed on April 9, 1992, and filed with the court on May 19, 1992. It is unclear exactly when Graham’s statement was turned over to the State, but at some time in May 1992, when Smith learned that the citation for contempt had been filed or would be filed, he mailed the original statement to his counsel in Atlanta, who delivered it to the attorney general’s office. The superior court judges in the Brunswick Judicial Circuit recused themselves, and the hearing on the contempt citation was held on June 19, 1992, before a superior court judge from another judicial circuit. The order was filed on that day, shortly before the hearing. The trial court found Smith in indirect criminal contempt of the Camden County Superior Court, and ordered him to pay a $500 fine.

1. The first question is whether Smith can be held in contempt of an order which was not filed until after he had complied with its terms. We find this order was enforceable despite not having been filed.

OCGA § 15-1-4 (a) (3) provides that a court has the power “to issue attachments and inflict summary punishment for contempt of court [in] cases of . . . [disobedience or resistance by any officer of the courts, party, juror, witness, or other person or persons to any lawful writ, process, order, rule, decree, or command of the courts.” OCGA § 9-11-58 (b) provides that filing with the clerk constitutes entry of a judgment, and unless the court otherwise directs, a judgment is not effective “for any purpose” until this is done. The scope of OCGA § 9-11-58 (b) appears to have been extended by implication beyond “judgments” to include orders of any kind. See, e.g., Bloodworth v. Thompson, 230 Ga. 628 (198 SE2d 293) (1973) (order dissolving injunction of foreclosure sale ineffective because signed but not filed with clerk); Milam v. Mojonnier Bros. Co., 135 Ga. App. 208 (217 SE2d 355) (1975) (order signed by judge but not filed with clerk insufficient to stop dismissal under five-year rule because it never became an order of the court). See generally 56 AmJur Motions, Rules, and Orders, § 38 (general rule is that orders are not complete until entered). Ordinarily, then, only orders that have been “entered,” i.e., filed, may be enforced pursuant to OCGA § 15-1-4 (a) (3): “what the judge orally declares is no judgment until the same has been reduced to writing and entered as such. [Cits.]” Tyree v. Jackson, 226 Ga. 690, 694 (2) (177 SE2d 160) (1970).

However, sheriffs are officers of the court. Lynd v. State, 262 Ga. 58, 64 (10) (414 SE2d 5) (1992). The contempt power of the courts is broader in cases of “[mjisbehavior of any of the officers of the courts in their official transactions” pursuant to subsection (a) (2) of OCGA § 15-1-4:

If OCGA § 15-1-4 (a) (2) is construed to apply only to the disobedience by an officer of the court to a written order, this provision of our Code is rendered meaningless; it would be entirely duplicitous of the provisions of OCGA § 15-1-4 (a) (3) and therefore redundant. OCGA § 15-1-4 (a) (2) is intended to impose upon officers of the courts engaged in their official transactions a higher duty to the court than is demanded of the broader group of individuals listed in OCGA § 15-1-4 (a) (3) who are arguably subject to the contempt powers only for failure to comply with those commands of the court spread upon the record in written form. Surely the interrelationship between the court and its officers is of such a complex and on-going nature as to render impractical any requirement that the court must render into a writing spread upon the record of the court any direction to an officer as a prerequisite to compelling obedience to its commands. In re Irvin, 171 Ga. App. 794, 796 (1) (321 SE2d 119) (1984), modified on other grounds 254 Ga. 251 (328 SE2d 215) (1985).

Although it certainly would have been preferable for the order to have been filed immediately, it cannot reasonably be maintained, as urged by Smith, that the order is for that reason unenforceable. If the court’s contempt power under OCGA § 15-1-4 (a) (2) extends to an oral order such as that held enforceable in Irvin, it necessarily also extends to an order such as the one in this case which, although not filed, was reduced to writing and delivered into the hands of sworn deputies of the officer of the court for service on the sheriff.

2. Any defense involving the insufficiency of service of process on Smith was clearly waived when Smith failed to raise this issue “at the time of pleading.” OCGA § 9-11-12 (b) and (h) (1) (B).

3. We find no merit in Smith’s contention that he could not be held in contempt of this order because it directed the sheriff’s office to release the evidence sought and did not require him, personally and individually, to take action. In support of his contention, Smith cites Spallone v. United States, 493 U. S. 265 (110 SC 625, 107 LE2d 644) (1990), which held that members of a city council could not be held in contempt for their failure to comply with an order to take legislative action to remedy past discrimination. However, Spallone involved civil contempt, not criminal, and the compelling rationale for the holding rests on the court’s refusal to condone the imposition of sanctions designed to influence the council members to vote a certain way in order to avoid fines. Id. at 279-280. Moreover, the order in this case clearly directed the release of any and all statements of Graham “in the possession of any employee of the Camden County Sheriff’s Office including the Sheriff of Camden County.”

4. Smith maintains the evidence was insufficient to support his conviction in two respects: the State did not prove either that he had actual notice of the contents of the order or that his conduct was wilful. In reviewing the sufficiency of the evidence to support a criminal contempt conviction, the proper standard is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. In re Smith, 205 Ga. App. 857, 858 (424 SE2d 45) (1992).

(a) “The contemptuous violation of a court’s order may be punished though the party charged with such violation was not a party to the proceedings. In such a case it must be alleged and proved that the contemnor had actual notice of the order for disobedience of which he is sought to be punished. [Cits.]” Spence v. The Woodman Co., 213 Ga. 573, 576 (3) (100 SE2d 435) (1957). Although Smith concedes he knew of the existence of the order, he argues that he did not read it until served with the contempt citation and had no knowledge of its actual contents; he believed that the order required only the “official file” of Graham to be turned over, which had been done. He testified that Graham’s statement had been taken for the purpose of protecting Smith and the sheriff’s office from any potential civil liability resulting from Graham’s auto accident. Because of this and because it did not relate to the criminal charges pending against Graham, the statement was not placed in Graham’s file. Smith therefore did not believe he was required, under the terms of the order, to turn the statement over to the GBI.

However, Clyde Urquhart, the public defender who represented Graham, testified that he had engaged in several conversations with the sheriff regarding Graham’s statement. In a conversation that took place sometime in late February or early March 1992, Smith told him “he had received a court order to turn over [Graham’s statement] and that he did not intend on doing that.” Smith disputed Urquhart’s version of the conversation. This created a fact issue, and the trial court, acting as the finder of fact, was obligated to resolve the conflict by believing either Urquhart or Smith. It is apparent the trial court resolved this fact issue against Smith. See In re Irvin, supra, 171 Ga. App. at 799. Viewing the evidence in the light most favorable to the prosecution, Urquhart’s testimony was sufficient to support a finding that Smith knew the order required him to release Graham’s statement to the GBI.

(b) Smith contends that even if we find he had actual notice of the contents of the order, the evidence does not support a finding that he wilfully violated its terms. This contention is premised mainly on Smith’s testimony that he never hid the fact that the statement had been taken and was in his possession, as well as on newspaper articles showing that he publicly discussed his possession of it; He argues that if he had desired to commit a wilful violation of the court order by withholding the statement, he would not have announced its existence or his possession of it to the world. This argument may be correct as a general description of human conduct, but in this context, it is no more than another restatement of Smith’s argument that he simply mistakenly believed that the order did not encompass the statement.

We find the evidence sufficient to support a finding of wilfulness. First, we agree with the trial court that any argument that a statement taken from an inmate while in custody and after being advised of rights may be “private,” and not a part of the inmate’s file, is insupportable and cannot be condoned. Second, given that the order was issued in the criminal case of an inmate in Smith’s official custody, and that Smith’s concern about the incident involving Graham was great enough to have caused him to consult with private counsel more than once and to take Graham’s statement, his failure to read the actual terms of the order must be viewed as more than simple oversight. The parties have cited us to no Georgia authority on point, and we have found none. However, both parties have cited Perfect Fit Indus. v. Acme Quilting Co., 646 F2d 800 (2nd Cir. 1981) in support of their respective arguments. Although we are not bound by it, we are persuaded by the wisdom of its words. A contemnor “is not permitted to maintain a studied ignorance of the terms of a decree in order to postpone compliance and preclude a finding of contempt.” Id. at 808 (III). In Perfect Fit, these words were directed to a party to the action, but we find them equally apt here. Smith is an officer of the court undeniably connected to the action, an officer who has conceded he was well aware of the existence of the order. The evidence was sufficient to find Smith guilty of contempt beyond a reasonable doubt.

Decided December 3, 1993

Reconsideration denied December 20, 1993

Jones, Brennan & Eastwood, Taylor W. Jones, Rebecca A. Copeland, Garland, Samuel & Loeb, Donald F. Samuel, for appellant.

Michael J. Bowers, Attorney General, Michael E. Hobbs, Deputy Attorney General, Patrick D. Deering, Assistant Attorney General, John E. Hennelly, Staff Attorney, for appellee.

Judgment affirmed.

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


author:
Smith, Judge. Birdsong, Presiding Judge,
      Beasley, Presiding Judge,

text:
    A93A0883.
    HARRIS COUNTY v. PENTON.
    (439 SE2d 729)
   Smith, Judge.

Ben H. Penton brought suit against Harris County for breach of an employment contract. Both parties moved for summary judgment, with Penton contending that the only issues remaining for trial were the amount of damages and whether the county failed to honor the contract in bad faith. The county appeals the grant of partial summary judgment in favor of Penton and the denial of its cross-motion for summary judgment.

Harris County, by the assent of three of its five commissioners in office on July 3, 1990, contracted with Penton to act as its county manager. On January 3, 1991, a successor board of commissioners, consisting of at least three newly-elected members, declined to reappoint Penton to that position. It is undisputed that Penton was relieved of his position without cause. Penton sued, claiming that his employment contract was of a definite duration of 24 months and that the county breached it by firing him without good cause. The county responded that Penton’s employment was terminable at will under the contract and that even if intended to be one of definite duration, such an agreement is nevertheless unenforceable under the circumstances as an impermissible attempt by a former board of commissioners to bind its successor. See OCGA § 36-30-3.

The contract, drafted by Penton, provided: “Effective July 3, 1990, Ben H. Penton, County Manager of Harris County, Georgia, is hereby awarded an employment contract as County Manager of Harris County for a period not to exceed 24 months from the date of this document. Mr. Penton’s salary shall be a minimum of $40,000 annually, payable in 24 equal monthly payments. During subject 24 months, Mr. Penton shall be paid additional compensation for normal annual cost of living increases, health and insurance benefits, travel expense, and retirement benefits. Mr. Penton shall have the right to negotiate a new contract with the Harris County Board of Commissioners at the end of this 24 month period.”

1. The initial question is whether the employment contract was intended to be of definite duration so that a successor board would be bound by the agreement, since “[a]n employment contract containing no definite term of employment is terminable at the will of either party, and will not support a cause of action against the employer for wrongful termination.” Burton v. John Thurmond Constr. Co., 201 Ga. App. 10 (410 SE2d 137) (1991). The essence of the county’s argument is that the language “for a period not to exceed 24 months” can have no other effect than to establish the maximum duration of an employment contract of otherwise indefinite duration. Penton in effect concedes this point by arguing that, when read as a whole, other references to a stipulated time period in the contract render the language upon which the county relies “superfluous and meaningless.” We cannot agree.

In construing contracts, “Georgia law requires us to give meaning to every term rather than construe any term as meaningless, and to construe a contract so as to uphold the contract in whole and in every part; and if construction is doubtful, ‘that which goes most strongly against the party . . . undertaking the obligation is generally to be preferred.’ [Cit.]” Myers v. Texaco Refining &c., 205 Ga. App. 292, 296 (422 SE2d 216) (1992). Since Penton’s employment contract with Harris County plainly establishes a 24-month maximum duration, it follows that the actual duration of employment contemplated by the parties is indefinite within that 24-month period. Moreover, other references to a stipulated time period in the contract are clearly consistent with an employment contract of both limited and indefinite duration. First, “[n] either the reference to the fiscal year, nor the agreed upon annual rate of compensation establishes a [two]-year term of employment.” Russell v. KDA, 206 Ga. App. 397 (1) (425 SE2d 406) (1992). Second, the outlining of additional compensation and benefits “during subject 24 months” merely refers to the potential period of employment subject to the terms of the agreement. Finally, the plain meaning of the language providing for Penton’s right to negotiate a new contract “at the end of this 24 month period” at most obligates the county to enter good faith negotiations should it require Penton’s services beyond the maximum period covered under the contract.

The dissent relies upon Wojcik v. Lewis, 204 Ga. App. 301, 303 (1) (419 SE2d 135) (1992) and maintains that the “not to exceed 24 months” language in the contract here is just as definite as the “ ‘not less than three years’ ” language used in Wojcik. However, the difference between the two is that the term of employment in Wojcik was to be at least three years; it could not be, for example, two years or two-and-one-half years. The term of employment under this contract could not be more than 24 months, but it could be less; it therefore was indefinite and terminable at will. As this court noted, the situation was very different in Wojcik: “The time from the commencement of Wojcik’s employment until the end of three years is a certain period of time, Wojcik was terminated before the end of that period, and he did not claim any rights beyond that period.” Id. at 303.

We therefore find that Penton’s employment as county manager was terminable at will under the contract, and his firing “without cause” by the county, through its board of commissioners, is not actionable. The trial court erred in granting partial summary judgment in favor of Penton, and likewise erred in denying Harris County’s motion for summary judgment.

2. Since we find that the employment contract was terminable at will by either of the parties, we need not address the question whether the Harris County Board of Commissioners may legally bind a successor board to its choice for county manager by an otherwise valid employment contract providing for a definite duration.

3. Penton’s motion for sanctions for frivolous appeal is denied.

Judgment reversed.

Pope, C. J., McMurray, P. J., Andrews, Johnson, Cooper and Blackburn, JJ., concur. Birdsong, P. J., and Beasley, P. J., dissent.

Birdsong, Presiding Judge,

dissenting.

I fully concur with Judge Beasley’s dissent but I feel compelled to write further. Words are to be given their natural meaning; phrases the same. The term “24 months” is clear, no more and no less. The contract further provides the salary shall be $40,000 annually “payable in 24 equal monthly payments.” How can there be any question as to what this means? It means 24 months in equal installments. In my opinion, the majority has read words out of the contract which are easily understood.

This contract was for 24 months and to deny this man his compensation is wrong.

I respectfully dissent.

Beasley, Presiding Judge,

dissenting.

I respectfully dissent because the trial court was correct. Applying the principles of contract construction, the entire provision and the whole contract must be considered and not only the words “not to exceed.” See OCGA § 13-2-2 (4); Denise v. Paxson, 261 Ga. 846, 847 (413 SE2d 433) (1992). The salary is expressly geared to a 24-month plan, additional compensation is designated for the 24-month period, and the manager is given the right to negotiate a new contract at the end of that 24-month period, implying that an initial 24-month period is expected and intended. The “subject 24 months” referred to in the contract is clearly the 24 months’ employment. The duration of the contract is as certain as the compensation. In fact, it is even more specific.

“[N]ot to exceed,” in the context of this entire provision and the contract as a whole, merely emphasizes that it is not for a period longer than 24 months. No party is bound beyond that, and express provision is made with respect to what is to occur thereafter. Considering the entire contract, it is just as definite a period of time as that construed as definite in its context in Wojcik v. Lewis, 204 Ga. App. 301, 303 (1) (419 SE2d 135) (1992): “ ‘for a period of not less than three years.’ ” In that instance, the definite period was from the commencement of employment until the end of three years. If the employment in fact continued thereafter, it would be on an indefinite basis.

In the case before us, the definite period is from the commencement of employment until the end of 24 months. Employment thereafter would have to be on the basis of a new contract. As contemplated by OCGA § 34-7-1, wages were paid “at a stipulated period,” i.e., monthly, but “the hiring was for a longer term,” i.e., 24 months. As evidenced, the contract did not constitute, in the words of that Code section, “[a]n indefinite hiring” so as to be terminable at will by either party.

The parties’ intentions when they made the contract, as memorialized in it, should be honored. DeKalb County v. Rockdale Pipeline, 189 Ga. App. 121, 124 (2) (375 SE2d 61) (1988); Robinwood, Inc. v. Baker, 206 Ga. App. 202, 203 (2) (425 SE2d 353) (1992).

Under local law for Harris County, its board is authorized to employ a county manager for a period of up to four years. Ga. L. 1984, p. 3534. The county acknowledges that the minutes of the board’s July 3, 1990, regular meeting reflect that “Mr. Penton presented to Commissioners a contract retaining him as County Manager for two years from the effective date, which would be July 3, 1990.” The contract was accepted by the board. This, and the unequivocal affidavits of the three county commissioners who signed the contract for the county, confirm the 24-month meaning ascribed to the contract by the trial court. “ ‘The cardinal rule of construction is to ascertain the intention of the parties. . . .’ [OCGA § 13-2-3.] . . . ‘ “This is the object of the rules of interpretation, to discover the true intent of the parties, and in doing this we are to take the whole of (the instrument) together, and to consider this with the surrounding circumstances.’” [Cit.]” Brooke v. Phillips Petroleum Co., 113 Ga. App. 742, 744 (2) (149 SE2d 511) (1966). See also Friedman v. Friedman, 259 Ga. 530, 532-533 (3) (384 SE2d 641) (1989): “ ‘look to the substantial purpose which must be supposed to have influenced the minds of the parties rather than at the details of making such purpose effectual.’ ”

Decided December 3, 1993

Reconsideration denied December 20, 1993

Kelly, Denney, Pease & Allison, Ray L. Allison, for appellant.

Robert L. Wadkins, for appellee.

I am authorized to state that Presiding Judge Birdsong joins in this dissent.