author: Phipps, Judge.

text:
    A00A0641.
    CUNNINGHAM v. THE STATE.
    (533 SE2d 735)
   Phipps, Judge.

Timothy Cunningham was convicted of raping the victim and committing aggravated assaults upon her with his fists and a razor box cutter. Following denial of his motion for new trial, Cunningham appeals his convictions. He charges the trial court with error in failing to instruct the jury that, to be admissible, prior difficulties between the parties must bear a sufficient similarity to the crimes charged. He also contends that a rape kit and blood vials should not have been admitted in evidence because of a break in the chain of custody. We find no merit in either contention and affirm.

Although Cunningham and the victim were romantically involved, he became increasingly abusive toward her after she moved ' into his apartment in July 1997. In August, she learned that she was pregnant with his child. In mid-December, he struck her with such force that she was taken to the hospital with a bleeding nose and broken lip and went into premature labor that was halted by medical intervention. After that incident, the victim moved in with her sister. In late December, Cunningham accosted the victim after he saw her out at night and again hit her in the face. The following month, the victim agreed to accompany Cunningham to his apartment where he became enraged and hit her. After their child was born in February 1998, Cunningham came to the victim’s new residence ostensibly to pick up the baby. When the victim let him into the apartment, he began cursing and beating her because she had left him. He then forced her and the baby to accompany him to his apartment.

The rape and aggravated assaults occurred on June 30, 1998. The victim had agreed to take the baby to a Wal-Mart parking lot to meet Cunningham. After the victim arrived, he forced her to drive her car to a secluded area while the baby was in the back seat. Once there, he made her have sexual intercourse with him by hitting her with his fists, holding a box cutter to her face, and threatening to cut her with it.

Afterward, the victim escaped with the child. En route home, she flagged down a police officer who accompanied her to a medical center where a rape examination was performed. DeKalb County Police Detective Florea testified that he delivered the rape kit to the Georgia Bureau of Investigation crime laboratory. DeKalb County Police Detective McCracken testified that he took vials containing samples of Cunningham’s and the victim’s blood to the crime lab. A serologist employed by the lab testified that DNA extracted from vaginal swabs in the victim’s rape kit matched DNA taken from Cunningham’s blood sample.

1. Cunningham argues that evidence of the prior difficulties between him and the victim was relevant only to the charge that he committed an aggravated assault upon her with his fists, because there was not a sufficient similarity between the prior difficulties and the other two crimes charged.

There is no merit in this argument. Evidence of prior difficulties between the parties is admissible if there is a “logical, probative connection” between the difficulties and the crimes charged. The prior difficulties in this case unquestionably showed a pattern of simple batteries by Cunningham against the victim which culminated in the commission of aggravated assaults and rape. The requisite connection was thus established, and the trial court correctly instructed the jury that it could consider such evidence insofar as it showed the state of feeling between Cunningham and the victim, his bent of mind, and his course of conduct toward her. As recognized in Wall v. State, evidence of the defendant’s prior acts toward the victim “be it a prior assault, a quarrel, or a threat” is admissible when the defendant is accused of a criminal act against the victim. There is no requirement that the prior difficulty constitute a similar transaction.

2. DeKalb County police detectives delivered the rape kit and blood vials to personnel at the state crime lab. The recipients of these items affixed a stamp to them noting their receipt and then placed them in a compartment from which they were later retrieved by the serologist. The recipients were not identified and, therefore, did not testify at trial. For these reasons, Cunningham argues that there was a break in the chain of custody.

Decided April 11, 2000

Reconsideration denied May 2, 2000.

Peter M. Zeliff, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Keith E. Adams, Assistant District Attorneys, for appellee.

It is, however, undisputed that the rape kit and blood vials were sealed when they were delivered to the crime lab, that they were stored in a locked compartment while at the crime lab (as noted on the receipt stamps), and that they remained sealed until they were examined by the serologist.

Where the State seeks to introduce evidence of a fungible nature, it need only show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The fact that one of the persons in control of a fungible substance does not testify at trial does not, without more, make the substance or testimony relating to it inadmissible. . . . [Cit.]

It appears that the rape kit and blood vials were routinely handled when received by the crime lab. There is nothing in the record to raise a suspicion that there was any tampering with or substitution of these items. Under the circumstances, the absence of testimony from the personnel who received the items was not fatal to the chain of custody.

Judgment affirmed.

Johnson, C. J, and McMurray, Senior Appellate Judge, concur.

        Wall v. State, 269 Ga. 506, 509 (2) (500 SE2d 904) (1998).

       Id.

        Williams v. State, 199 Ga. App. 122, 123 (2) (404 SE2d 296) (1991).

       See Cook v. State, 255 Ga. 565, 568 (4) (340 SE2d 843) (1986); Johnson v. State, 184 Ga. App. 745 (1) (a) (362 SE2d 450) (1987).


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A00A0064.
    AGA, LLC v. RUBIN.
    (533 SE2d 804)
   Blackburn, Presiding Judge.

AGA, LLC appeals the trial court’s order granting Dr. Raymond Rubin’s petition for a temporary restraining order which precludes AGA from enforcing the provisions of the noncompetition clause contained in Rubin’s employment contract. The trial court determined that the territorial limitation contained in the contract was over-broad and unenforceable because the territory was undefinable until Rubin’s employment ended. We agree.

Unlike a contract in general restraint of trade, a restrictive covenant in an employment contract is considered to be in partial restraint of trade and will be upheld if the restraint imposed is not unreasonable, is founded upon valuable consideration, and is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public. Whether the imposed restraint in an employment contract is reasonable is a question of law for court determination, which considers the nature and extent of the trade or business, the situation of the parties, and all the other relevant circumstances. W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) [(1992)]; Dougherty, McKinnon &c. v. Greenwald, Denzik &c., 213 Ga. App. 891, 893 (2) (447 SE2d 94) [(1994)]. A helpful tool in determining the reasonableness of a particular restraint provision is to apply the three-element test of duration, territorial coverage, and scope of activity. Id. In considering the reasonableness of restrictive covenants in an employer/employee agreement, strict appellate scrutiny is required; whether the restraint was reasonable presents an issue of law. McAlpin v. Coweta &c. Assoc., 217 Ga. App. 669, 672 (1), (2) (458 SE2d 499) [(1995)].

(Punctuation omitted.) Delli-Gatti v. Mansfield, 223 Ga. App. 76, 77-78 (1) (477 SE2d 134) (1996).

In the present case, Rubin worked for AGA pursuant to an employment agreement from March 1996 to March 1999. The non-competition covenant within the agreement provided:

[F]or a period of eighteen (18) months following termination of employment with Employer (regardless of the reasons for such termination), Employee shall not, either for himself or on behalf of any other person, persons, partnership, association, corporation or other business entity, render or be retained or employed to render as a doctor of medicine, any gastroenterology services, other than in an emergency situation, at (i) any hospital at which Employee regularly performs services for Employer during the term of this Agreement, including, without limitation, those set forth in Exhibit B attached hereto (collectively, the “Restricted Hospitals”) or (ii) any location within a five-mile radius of any of the Restricted Hospitals, except as an Employee of Employer.

Exhibit B to the agreement identified three hospitals: Crawford Long Hospital in Atlanta; Piedmont Hospital in Atlanta; and Gwinnett Medical Center in Lawrenceville. By the terms of the agreement, Exhibit B was not an exhaustive list.

Relying on Jarrett v. Hamilton, 179 Ga. App. 422, 425 (1) (346 SE2d 875) (1986), the trial court determined that the territorial limitation was unenforceable because the territory was not determinable until the time of the employee’s termination. The trial court was correct. Our Supreme Court has held, in several cases, that “a territorial restriction which cannot be determined until the date of the employee’s termination is too indefinite to be enforced.” Koger Properties v. Adams-Cates Co., 247 Ga. 68 (1) (247 SE2d 329) (1981). See also Durham v. Stand-By Labor of Ga., 230 Ga. 558, 562 (2) (a) (198 SE2d 145) (1973); Ellison v. Labor Pool of America, 228 Ga. 147, 150-152 (3) (184 SE2d 572) (1971). The employee must be able to “ ‘forecast with certainty the territorial extent of the duty owing’ ” the employer. Koger, supra at 68.

In Dominy v. Nat. Emergency Svcs., 215 Ga. App. 537 (451 SE2d 472) (1994), the covenant provided, in pertinent part:

“for a period of two (2) years after the termination of this Agreement, however the same may be terminated, Physician shall not directly or indirectly solicit a contract to perform nor perform nor have any ownership or financial interest in any corporation, partnership, or other entity soliciting or contracting to perform emergency medical service for any medical institution at which Physician has performed the same or similar services under this Agreement or any prior Agreement between Physician and Corporation

Id. at 538-539 (2). We found this restriction to be reasonable. It is clear that the territorial limitation in Dominy could not be determined until the employment ended. Because this determination did not follow Supreme Court precedent, it must be overruled to the extent it violated the holding in Koger. See Koger, supra.

Usually, whether a covenant is reasonable can appropriately be answered based upon the wording of the covenant. However,

[occasionally facts might be necessary to show that a questionable restriction, though not void on its face, is, in fact, reasonable. . . . However, the indefinite restriction imposed in this case could not be saved by additional facts and is in fact void on its face.

Decided May 2, 2000.

Minkin & Snyder, Michael J. Ring, G. Brian Raley, Joseph H. Akers, for appellant.

Gambrell & Stolz, Irwin W. Stolz, Jr., Robert G. Brazier, Seaton D. Purdom, for appellee.

Koger, supra at 69 (2). There were no facts discussed in Dominy that could save the void restriction. Similarly, the facts of the present case cannot save a restrictive covenant that is void on its face. See Ceramic &c. Coatings Corp. v. Hizer, 242 Ga. App. 391 (529 SE2d 160) (2000) (“ ‘a territorial limitation not determinable until the time of the employee’s termination invalidates the provision and the entire agreement’ ”).

We cannot agree with AGA that the covenant should receive less scrutiny simply because Rubin was a physician. The facts do not suggest that Rubin was a partner, shareholder, or other form of owner or manager of AGA. See Rash v. Toccoa Clinic Med. Assoc., 253 Ga. 322 (320 SE2d 170) (1984) (the Supreme Court of Georgia distinguished an employment agreement from the partnership agreement it considered).

Judgment affirmed.

Johnson, C. J., Pope, P. J., Andrews> P. J., Smith, P. J., Ruffin, Eldridge, Barnes, Miller, Ellington, Phipps, JJ, and McMurray, Senior Appellate Judge, concur.


author: McMurray, Senior Appellate Judge.

text:
    A00A0583.
    ECHOLS v. THE STATE.
    (534 SE2d 464)
   McMurray, Senior Appellate Judge.

On August 17,1987, defendant entered negotiated pleas of guilty to three counts of armed robbery and two counts of aggravated assault. Following a hearing, the superior court accepted the pleas and sentenced defendant thereon. Subsequently, the defendant, pro se, appealed the superior court’s denial of his motion for an out-of-time appeal. In Echols v. State, we affirmed, concluding, among other things, that the superior court did not consider improper matters in fixing his sentencing. In two enumerations of error in the case sub judice, defendant, pro se, again raises the foregoing claim of error upon the superior court’s denial of his petition to correct void sentences, filed in the superior court after this court’s judgment as to his first appeal.

Decided May 2, 2000.

Curtis Echols, pro se.

David McDade, District Attorney, for appellee.

It is axiomatic that the same issue cannot be relitigated ad infinitum. The same is true of appeals of the same issue on the same grounds. Our determination in the earlier appeal is res judicata; the instant appeal is therefore barred, and we are without jurisdiction to review this same matter for a second time.

Appeal dismissed.

Johnson, C. J., and Phipps, J., concur.

       231 Ga. App. 501 (498 SE2d 66).

       (Citations and punctuation omitted.) Stirling v. State, 199 Ga. App. 877 (406 SE2d 282).


author: Johnson, Chief Judge.

text:
    A00A0065.
    WHEELING-CULLIGAN et al. v. ALLEN.
    (533 SE2d 797)
   Johnson, Chief Judge.

In 1994, Kathryn Wheeling-Culligan and a number of other flight attendants (“Wheeling-Culligan”) sued Delta Air Lines in a Florida court for alleged breach of contract. In 1998, WheelingCulligan served Ronald Allen, who retired from his position as Chief Executive Officer and Chairman of the Board of Delta in 1997, with a subpoena for his deposition. Allen lives in Fulton County, Georgia. Allen filed a motion for a protective order and a motion to quash the subpoena in Fulton County Superior Court. The Fulton County Superior Court judge granted the motion for a protective order and stayed ruling on the motion to quash pending the service of and response by Allen to 75 interrogatories.

Thereafter, the Fulton County Superior Court judge held another hearing to review Allen’s interrogatory responses and to rule on Allen’s motion to quash the deposition subpoena. The judge quashed the deposition subpoena, finding that Allen adequately responded to the interrogatories and that Wheeling-Culligan had alternate sources with more direct, specific or unique knowledge of the matters of which she sought to depose Allen. Wheeling-Culligan appeals this ruling. We affirm the decision of the trial court as the appellate record is inadequate to permit this Court to do otherwise.

It is well established that the burden is on the party alleging error to show it affirmatively by the record and where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm. It is clear from the parties’ briefs that the appellate record before us does not include all the evidence considered by the trial court. While both parties refer extensively to the 75 interrogatories answered by Allen, neither the interrogatories nor Allen’s responses are a part of the record before us. Accordingly, we must assume that the trial court’s order quashing Allen’s deposition subpoena was properly supported by the evidence before the trial court, arid we must affirm.

Judgment affirmed.

Phipps, J, and McMurray, Senior Appellate Judge, concur.

On Motion for Reconsideration.

The appellants filed a motion for reconsideration requesting that we reconsider our opinion in this case because the appellate record has now been supplemented to include the 75 interrogatories and Allen’s responses. The appellants filed their appellate brief on September 13, 1999, noting that the interrogatories and responses were missing and would be included by supplemental record. The record was not supplemented, and on April 18, 2000, we decided the case without the missing documents.

On April 24, 2000, this Court received the supplemental record, including the interrogatories and responses, and on April 28, 2000, the appellants filed their motion for reconsideration. The appellants claim they “should not be penalized for the Clerk of the Superior Court of Fulton County’s failure to timely supplement the record pursuant to a lawful court order.” However, the appellants overlook the basic premise that they are responsible for ensuring that the record before this Court is complete.

It is the primary responsibility of the appropriate parties and not this court to ensure that all documents relevant to the disposition of an appeal be duly filed with the clerk of this court prior to the issuance of our appellate decision. This appellant did not do. Appellant cannot now perfect a deficiency in his appeal by the belated filing of records, which were missing through no fault of this court at the time of our appellate disposition of this case.

Decided April 18, 2000

Reconsideration denied May 3, 2000

Jacobs & Slawsky, David J. Worley, for appellants.

Rogers & Hardin, Hunter R. Hughes III, Daniel D. Zegura, for appellee.

Moreover, as a general appellate rule adopted as necessary to effectuate our appellate judgments,

it is the state of an appellate record and transcript duly before us at the time of our original disposition of an appeal, and not the state of the record as amended in an attempt to support an appellate position argued on motion for reconsideration, that is controlling as to the adequacy of the record for purposes of appellate review.

We may not now properly reconsider the case using documents provided to this Court after the issuance of our opinion. The appellants’ motion for reconsideration is hereby denied.

Motion for reconsideration denied.

        Enchanted Valley &c. v. Weese, 241 Ga. App. 415, 417 (1) (c) (526 SE2d 124) (1999).

       See Long v. City of Midway, 165 Ga. App. 602, 603 (302 SE2d 372) (1983).

        Williams v. Food Lion, 213 Ga. App. 865, 868 (446 SE2d 221) (1994); see also Perimeter Realty v. GAPI, Inc., 243 Ga. App. 584, 597 (533 SE2d 136) (2000) (on motion for reconsideration).

       (Citation omitted.) Id. at 598 (on motion for reconsideration); see also our unpublished opinion in Downs v. C.D.C. Fed. Credit Union, 230 Ga. App. XXVII (1998).


author: Andrews, Presiding Judge.

text:
    A98A1162.
    In the Interest of D. H. et al., children.
    (534 SE2d 466)
   Andrews, Presiding Judge.

T. H. M. appeals from the January 22, 1998 judgment terminating her parental rights to her three children, D. H., J. H., and T. M. That judgment also terminated the parental rights of J. M., the biological father of T. M. This case was originally docketed in this Court in the April 1998 term. Both T. H. M. and J. M. were parties to that appeal. Pursuant to the motion of the Georgia Department of Human Resources, the appeal was dismissed by opinion of June 22,1998, and the remittitur issued on July 24, 1998.

On June 7, 1999, T. H. M. filed her Notice to Seek Certiorari. By order of October 15, 1999, the Supreme Court granted the writ and remanded the case to this Court for consideration of the merits of T. H. M.’s appeal. The remittitur having been recalled, we now consider the merits of her appeal.

By order of August 30, 1995, D. H. (male, DOB June 25,1988), J. H. (female, DOB December 2, 1990), and T. M. (female, DOB November 8,1994) were found deprived. The following factual findings were the cause for this finding: D. H. and J. H., who were placed in temporary custody of the Department of Family & Children Services on August 7, 1995, reported to a child sexual abuse investigator and to their foster mother that J. M. ejaculated on J. H.’s stomach. D. H. was sent to take a bath by J. M. when this occurred, but he witnessed it. J. H., then four years old, stated that J. M. “tee tee’d white” on her. The children testified repeatedly and consistently to these facts. The children also said that T. H. M. observed the incident and that J. M. made J. H. rub his penis with lotion, which he hid behind the couch when confronted by T. H. M. When confronted by her, J. M. and she fought. T. H. M. then reported her observation to nutritionist Milhous at Norcross Health Clinic, and they filled out a form to report the incident. T. H. M. then changed her mind and left the office with the form. No significant language barrier was noted by Milhous. The next day, T. H. M. spoke in her native tongue with a Vietnamese worker at the clinic three separate times by phone and reconfirmed that the abuse occurred. T. H. M. asked this worker for medication for the father’s sexual deviance but was told that the behavior was not a medical condition, but a mental one. J. M. admitted to the investigator that he and his wife left the children at home alone on various occasions.

In that August 1995 order, the parents were ordered to cooperate with DFCS, to obtain and maintain stable employment and living arrangements and to follow any other recommendation made by DFCS, including but not limited to individual and family counseling, anger management for J. M., and parenting and nurturing skills classes. They were also ordered to keep DFCS informed of a current address and phone number. T. H. M. was ordered to find a duly qualified Vietnamese-speaking psychiatrist with whom to begin counseling, and all parties were to agree on a child sexual abuse counselor for J. M. Both parents were to sign releases allowing DFCS to obtain information from their counselors. J. M. was to have no contact with D. H. and J. H.

J. M. was evaluated in November 1995 and March 1996 by Dr. Abel who determined that the psychophysiological assessment of J. M.’s sexual interests revealed that he was responsive to slides of three- and four-year-old females. J. M. was also found to have failed a polygraph examination regarding any sexual activity with his children and his attraction to a child under the age of 15.

T. H. M. was evaluated by Dr. Runo in February 1996, reflected in his report of March 11, 1996. Dr. Runo found her to be very dependent on J. M. and fearful of losing that support and security. It was again recommended that she undergo individual therapy.

On at least two occasions in 1996, despite the court’s order, J. M. attempted to have contact with D. H. and J. H., once by going to their school, and once by barging into the DFCS facility when T. H. M. was going to meet with the children. On that occasion, J. M. pushed past the caseworker and the foster mother, who was holding T. M. in her arms, went into the room with J. H., tried to shut the door, and touched her on the arm before the caseworker could get him out.

In January 1997, as a result of having left the children alone for a period of time without parental care and control, one of the reasons for the finding of deprivation, J. M. and T. H. M. pled guilty to three counts each of misdemeanor contributing to the deprivation of a minor and were sentenced to probation for three years.

Additionally, in January 1997, J. M. pled guilty to sexually assaulting a minor, a female employee of his pizza restaurant. Previously, while in the Army, J. M. had been demoted for masturbating in front of a female soldier.

The termination hearing began on August 25, 1997, pursuant to the petition filed by DFCS in February 1997. At the conclusion of that hearing, the parents requested a continuation of the matter for four to six months to see if there was any feasible way to reunify T. H. M. with her children. Counsel for T. H. M. advised the court that J. M. and she had separated, although no decision had been made on the permanency of the separation. The hearing was suspended under the following provisions, applicable to T. H. M.:

1. The mother and father shall live separate and apart from each other and have no absolutely no contact between them; ... 3. The mother, [D. H.] and [J. H.] shall attend family therapy with Dr. Bush every other week; 4. The mother shall attend weekly individual therapy at the parents’ expense; 5. The mother shall obtain and maintain stable living arrangements and employment sufficient to support the children; 6. Visitation between the mother and the children shall occur twice per month at the Department; ... 9. The parents shall attend all therapy and counseling sessions, actively participate in same, follow the recommendations of their therapists and counselors and release all information to all parties.

On September 2, 1997, counsel for T. H. M. sent her a letter giving her the name of a Vietnamese-speaking counselor who had been located by the caseworker. The letter directed her to contact the counselor and begin her therapy. The letter also instructed her “not to have any contact at all with [J. M.] If the Judge finds out that you have seen him or talked to him at all then we will be brought back into court and she will terminate your parental rights. There are no second chances and no excuses.” The letter was copied to T. H. M.’s Vietnamese interpreter who was asked to contact T. H. M. and read the letter to her in Vietnamese.

The hearing was resumed on October 7, 1997. During that hearing, DFCS presented evidence that, despite the previous court order and her agreement to live separately from J. M., T. H. M. had been cohabiting with him. A private investigator documented that both parents’ cars were at T. H. M.’s apartment, backed into parking spaces so that their license tags were obscured, on September 11, 16, 23, 24, and 29. The investigator also videotaped J. M. leaving the apartment the evening before the investigator testified. On September 25, during her visitation with the children, T. H. M. was asked by Crawford, her caseworker, if she had had contact with J. M., and she denied any.

Dr. Bush, a child psychologist, had previously treated D. H. and J. H. She testified at the August hearing that T. H. M. had difficulty acknowledging her children’s feelings and had become angry when J. H. had drawn a family picture which did not include J. M.

Dr. Bush met with T. H. M., D. H., and J. H. on September 8 and 22. During both sessions, both children reiterated to T. H. M. that the molestation had occurred. T. H. M. indicated for the first time that she believed what J. H. told her, but she also stated that she believed J. M. when he denied having molested J. H.

While J. M. did finally begin counseling with M.G. Counseling Services in 1997, this counseling dealt only with sexual addiction and was not addressed to child sexual abuse, which J. M. continued to deny.

Although, as set out above, the caseworker had located a Vietnamese-speaking counselor for T. H. M. and she had been instructed by her lawyer on September 2, 1997, to go for counseling, as of the October hearing she had seen the counselor only once. T. H. M. acknowledged that the therapist told her to divorce J. M. but said, “I was thinking I have done so many things that the court have told me and they still haven’t given me back my children so what’s the point to get divorced.” Also, T. H. M. acknowledged that she did not have her own apartment yet.

T. H. M.’s sole enumeration of error is that the trial court erred in terminating her rights because there was no present clear and convincing evidence that the deprivation of these children would continue in the future or that the termination was in the best interests of the children. OCGA § 15-11-81 (b) (4) (A) (iii), (iv).

On appeal, this Court must determine:

whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. . . . This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met. [CitJ

In the Interest of S. J. C., 234 Ga. App. 491-492 (507 SE2d 226) (1998).

It is undisputed, based on the prior unappealed court orders of which the juvenile court took judicial notice during the termination proceedings, that the children are deprived. See, e.g., In the Interest of S. J. C., supra at 493 (1); In the Interest of T. B. R., 224 Ga. App. 470, 473 (1) (a) (480 SE2d 901) (1997).

Despite T. H. M.’s argument to the contrary, the court, from the initial 1995 order on, made clear that the allegation of child sexual abuse by J. M. of J. H. in the presence of D. H. had been proven to the court by clear and convincing evidence and was one basis for the deprivation finding.

As of the October 1997 hearing, despite the court’s repeated findings, J. M. remained an unadmitted and untreated child sexual abuser and an admitted sexual addict, and T. H. M. continued to believe him with regard to his denials of child sexual abuse, contending that all the reports of J. H.’s molestation had been fabricated. Although at the October hearing, for the first time in over two years, T. H. M. also indicated that she believed J. H. and that the abuse might have occurred, this failure of recognition by T. H. M. of J. M.’s problems and its effect on her and the children is properly considered by the trial court in determining whether the abuse is likely to continue, particularly when the fabrication of a separation from J. M. and T. H. M.’s lying about it to authorities are considered. In the Interest of B. H., 190 Ga. App. 131, 132 (378 SE2d 175) (1989). As stated therein,

the reason the mother was deprived of custody was her refusal to protect the child by even considering the possibility that the [step]father could have abused the child and her consequent unwillingness to remove the child from the danger presented by living with the [step] father. The juvenile court’s primary responsibility is to consider and protect the welfare of children whose well-being is threatened. OCGA § 15-11-1 (1). This is so regardless of specific fault on the part of the mother. [Cit.] Accordingly, in this instance, after finding there was clear and convincing evidence the [step] father had molested [J. H. in the presence of D. H.], the trial court did not abuse its discretion by considering the evidence and deciding it had no choice but to protect the [children] by removing custody from the mother as well. [Cit.]

Id. at 133 (1).

Molesting one child in the presence of another also provides clear and convincing evidence that the deprivation of the child witnessing the abuse is likely to continue and cause harm to that child. In the Interest of R. E. M., 207 Ga. App. 178, 179 (2) (427 SE2d 512) (1993).

Because T. H. M. had only once seen the counselor first ordered for her in August 1995 and had only recently evidenced any willingness to perhaps believe her children’s reports of abuse, the trial court was also authorized “to assign less weight to assertions of sudden parental fitness based on belated efforts to comply with a case plan after termination proceedings begin. [Cit.]” In the Interest of J. S., 232 Ga. App. 876, 880 (1) (502 SE2d 788) (1998). “The decision as to [the children’s] future must rest on more than positive promises which are contrary to negative past fact. [Cit.]” (Punctuation omitted.) In the Interest of D. W., 235 Ga. App. 281, 283 (509 SE2d 345) (1998).

Decided May 3, 2000.

Sherriann H. Hicks, Christopher T. Adams, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Cheeley & Joyner, John P. Cheeley, Debra R. F. Stone, for appellees.

James B. Outman, amicus curiae.

The record also supports a finding that termination of T. H. M.’s parental rights would be in the best interests of her children. The same factors which illustrate a parent’s inability to properly parent her children may also provide proof that termination of parental rights will be in the children’s best interests. In the Interest of S. J. C., supra at 494 (1). Here, T. H. M. has repeatedly shown the court that her primary loyalty is to J. M., whose parental rights to T. M. have been severed and who abused J. H. in D. H.’s presence. Given the chance to show the court that she could put her children first, she nonetheless continued to live with J. M. and attempted to mislead the court. She also failed to pursue the therapy which might have enabled her to rectify the situation.

Also, in making the determination of the children’s best interests, the court considers the children’s “physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home. OCGA § 15-11-81 (a).” In the Interest of N. B., 239 Ga. App. 336, 337 (521 SE2d 47) (1999).

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       The putative biological fathers of D. H. and J. H. were not involved in the proceedings below.

       T. H. M. is Vietnamese and has been supplied with an interpreter throughout these proceedings.

       The court issued an order continuing the temporary custody of DFCS for two years based on these facts.


author: Ellington, Judge.

text:
    A98A1510.
    PEEK v. THE STATE.
    (534 SE2d 198)
   Ellington, Judge.

Christopher E. Peek was convicted of driving under the influence of alcohol, OCGA § 40-6-391 (a). Peek appealed to this Court, and we affirmed his conviction in Peek v. State, 235 Ga. App. 693 (509 SE2d 358) (1998).

The Supreme Court granted certiorari and reversed our finding that the State had satisfied its burden under OCGA § 40-6-392 of proving that the person who drew Peek’s blood for the state-administered blood alcohol test was qualified to do so by introducing the phlebotomist’s “employee education cumulative report.” Peek v. State, 272 Ga. 169 (527 SE2d 552) (2000). Accordingly, our ruling is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Decided May 3, 2000.

Monte K. Davis, George A. Stein, for appellant.

Keith C. Martin, Solicitor, Kimberly A. Gross, Assistant Solicitor, for appellee.

Judgment reversed.

Pope, P. J., and Ruffin, J, concur.


text:
    A99A0265.
    TYLER et al. v. LINCOLN et al.
    (534 SE2d 479)
    Decided May 3, 2000.

      Donald D. J. Stack, for appellants.

      Newman, Sapp & Davis, David A. Sapp, Whelchel, Brown, Read-dick & Bumgartner, Gregory T. Carter, Miller & Tow son, Wallace Miller III, Alexander & Vann, William C. Sanders, for appellees.
   Ellington, Judge.

In Tyler v. Lincoln, 272 Ga. 118 (527 SE2d 180) (2000), the Supreme Court reversed Division 3 of this Court’s opinion in Tyler v. Lincoln, 236 Ga. App. 850, 853 (513 SE2d 6) (1999). Therefore, we vacate that Division of our earlier opinion and adopt the opinion of the Supreme Court in its place. We remand the case to the trial court for proceedings not inconsistent with this Court’s revised opinion.

Judgment affirmed in part and reversed in part.

Blackburn, P. J., and Barnes, J., concur.


text:
    A00A0074.
    SPIVEY v. THE STATE.
    (534 SE2d 498)
   Blackburn, Presiding Judge.

Addie Mae Spivey appeals, following a jury trial, her conviction of armed robbery, contending that the trial court erred by: (1) failing to charge the jury on the lesser included offense of criminal attempt to commit armed robbery; (2) failing to charge the jury on abandonment; (3) improperly recharging the jury on “overt act”; and (4) failing to grant her motion for mistrial. For the reasons discussed below, we affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Spivey] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in this light, the evidence shows that Spivey, upon the promise that she would be paid, drove co-defendants Betty Shannon, Timothy Daniels, Daniel Esther, Lyndon Jones, and Ronald Burks in her car from Moultrie to Tifton. Once in Tifton, Spivey parked beside Holiday Market. Three of the co-defendants covered their faces with masks, went inside the store, and, using a sawed-off shotgun, robbed the store and a store patron. Spivey and the other co-defendants waited in the car. When the three returned, Shannon drove Spivey’s car away from the store.

1. At trial, Spivey made a written request for a jury charge on the lesser included offense of criminal attempt to commit armed robbery, which the trial court denied. Having preserved her argument by excepting to the charges at trial, Spivey now appeals this ruling. We find no error.

“The trial court is obligated to give a properly requested instruction on lesser included offenses only if the evidence warrants such an instruction.” (Punctuation omitted.) Lemattey v. State, 234 Ga. App. 889, 890 (508 SE2d 215) (1998). Criminal attempt occurs when a person, “with intent to commit a specific crime, . . . performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. Furthermore, if the crime is actually committed, a person may, nonetheless, be convicted of the offense of criminal attempt, but may not be convicted of both the criminal attempt and the completed crime. OCGA § 16-4-2.

Spivey argues that a charge on criminal attempt is supported by her three statements to the police. In the first statement, Spivey denied any knowledge of the planned robbery until the three men returned to the car and told her to drive away. In the second statement, Spivey admitted prior knowledge of the planned robbery. However, after the robbery was in progress, she told Shannon that she wanted to back out of the deal and refused to drive the car. Nonetheless, after the robbery, she accepted $100 for driving the car. In her third statement, Spivey denied any knowledge that her co-defendants intended to rob the store until shortly before the robbery when, after Shannon surveyed the store, she was asked to park beside the store. Spivey stated that, after parking the car, she told Shannon she wanted no part of the robbery. After the robbery, she allowed Shannon to drive her car from the scene.

Even acknowledging that “[a] jury has unlimited discretion to accept or reject a defendant’s testimony as a whole, or to accept it in part and reject it in part,” Johnson v. State, 236 Ga. App. 61, 63 (1) (510 SE2d 918) (1999), we do not agree that Spivey’s statements warrant an instruction on attempted armed robbery. Although Spivey did not directly commit the crime,

[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. ... A person is concerned in the commission of a crime only if he . . . [intentionally aids or abets in the commission of the crime; or . . . [intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

OCGA § 16-2-20. See Jones v. State, 233 Ga. App. 291 (503 SE2d 902) (1998) (“ ‘[a]id and abet’ means to ‘help, assist, or facilitate the commission of a crime’ ”). A person commits armed robbery “when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by .use of an offensive weapon.” OCGA § 16-8-41 (a).

If the jury believed any combination of Spivey’s statements, either Spivey was party to the completed crime of armed robbery or she lacked any intent to be party to the crime.

[This] evidence offered the jury a choice of . . . completed crimes or of no crime at all. As there was no evidence requiring a charge on attempt to commit armed robbery, the trial court did not err in failing to charge the jury on the law relating thereto.

(Citation omitted.) Rolland v. State, 235 Ga. 808, 811 (221 SE2d 582) (1976). See Maddox v. State, 152 Ga. App. 384 (1) (262 SE2d 636) (1979); Mayo v. State, 139 Ga. App. 520 (3) (229 SE2d 16) (1976). The trial court did not err in denying the request to charge.

2. In her second enumeration of error, Spivey contends the trial court erred by failing to charge the jury on abandonment as set forth in OCGA § 16-4-5:

When a person’s conduct would otherwise constitute an attempt to commit a crime under Code Section 16-4-1, it is an affirmative defense that he abandoned his effort to commit the crime or in any other manner prevented its commission under circumstances manifesting a voluntary and complete renunciation of his criminal purpose.

This argument is without merit. OCGA § 16-4-5 is not applicable because, as discussed in Division 1, Spivey’s conduct did not “constitute an attempt to commit [armed robbery].” Id.

Moreover, the trial court charged the jury on renunciation and abandonment of a criminal enterprise:

If you believe that the defendant conspired with one or more persons to commit the crime alleged in this indictment but that the defendant voluntarily and completely renounced and abandoned all participation in the criminal endeavor prior to the commission of the offense, if any, then the defendant would not be guilty of the offense and it would be your duty to acquit the defendant.

(Emphasis supplied.) Thus, even assuming that slight evidence of abandonment of the criminal enterprise was shown at trial, Koritta v. State, 263 Ga. 703 (438 SE2d 68) (1994), the trial court did, in fact, charge the jury on abandonment, so there was no error.

3. Spivey enumerates as error the trial court’s recharge of the jury on “overt act,” contending that the recharge was not tailored to the evidence and was confusing to the jury. We disagree.

As a general rule, the need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court. Where a jury, which has been fully and properly charged, requests a recharge on a specific question, it is within the discretion of the trial court whether to recharge entirely or to recharge only on the specific question. It is not error to recharge only on the specific question so long as the recharge taken alone does not leave an erroneous impression in the minds of the jury.

(Citations and punctuation omitted.) Cloyd v. State, 237 Ga. App. 608, 610 (3) (516 SE2d 103) (1999).

In this case, after the jury had questioned the trial court about when a crime begins, the trial court reread the charge that “a person commits the offense of conspiracy to commit a crime when he, together with one or more persons, conspires to commit a crime and any one or more of such persons does any overt act to effect the object of the conspiracy.” The trial court then reminded the jury that “a co-conspirator may be relieved from the effects of a conspiracy if he or she can show that before the overt act occurred, he or she withdrew his agreement to commit a crime.” After that, the trial court charged the jury on the meaning of overt act by referring to the Black’s Law Dictionary definition, stating:

Decided May 3, 2000.

Jason K. Hoffman, for appellant.

C. Paul Bowden, District Attorney, for appellee.

[I]t must be something done that directly moves toward the crime and brings the accused nearer to its commission than mere acts of preparation or of planning and will apparently result in the usual and natural course of events if not hindered [by] extraneous causes in the commission of the crime itself.

After the recharge was completed, the trial court allowed both sides to make a short argument to the jury on the issue.

The trial court did not abuse its discretion in recharging the jury on overt act. The charge was appropriate, adjusted to the evidence, and would not have left the jury with an erroneous impression.

4. The trial court did not err by failing to grant Spivey’s motion for mistrial on the grounds that the prosecution made inappropriate and prejudicial comments in closing argument. At trial, a co-defendant testified on cross-examination that he and several other co-defendants, not including Spivey, were involved in two armed robberies in the weeks prior to the incident here. The co-defendant also testified that he had known Spivey for two or three weeks prior to this armed robbery. In closing, the prosecutor summed up this evidence and argued that it was “logical to infer that Addie Mae Spivey knew what kind of people she was dealing with.” Defense counsel immediately objected and moved for a mistrial on the grounds that the argument tied Spivey to these other crimes. The trial court denied the motion.

During closing argument, a prosecutor may draw conclusions or deductions from the evidence. McClain v. State, 267 Ga. 378, 383-384 (3) (b) (477 SE2d 814) (1996); Truitt v. State, 174 Ga. App. 687, 689 (3) (331 SE2d 64) (1985). The prosecutor’s comment regarding Spivey’s familiarity with the co-defendants is such an inference drawn from the testimony at trial. The trial court did not err by failing to grant a mistrial.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.


author: Pope, Presiding Judge.

text:
    A00A0198.
    COX v. THE STATE.
    (534 SE2d 464)
   Pope, Presiding Judge.

Montez Cox asserts that the evidence was insufficient to support his conviction on one count of armed robbery. Because we find there was sufficient evidence to sustain the verdict, we affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Cox] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

Byrd v. State, 240 Ga. App. 354 (523 SE2d 578) (1999). “As long as there is some competent evidence, even though contradicted, on each element necessary to prove the State’s case, the jury’s verdict will be upheld.” Trzepacz v. State, 240 Ga. App. 410, 411 (1) (523 SE2d 599) (1999).

Viewed in that light, the evidence showed that on August 28, 1998, two thin African-American men entered a convenience store in Bainbridge shortly after the store opened pt 6:00 a.m. One of the men was wearing a white towel wrapped around his face, no shirt and dark blue jeans. He pointed a shotgun at the store’s owner and ordered him to open the safe, while the other man stayed in front of the counter. After the safe was opened, the man with the towel removed $6,000 to $7,000, and both men fled. The store owner could not identify the men who robbed his store and could not state that the gun introduced at trial was the one used in the robbery.

The store owner notified police of the robbery, but after searching the area, the police were unable to locate any suspects. The search did turn up a $20 bill near the store on a dirt path that ran between the convenience store and Hutto-Melvor Homes. The bill lay beside one in a series of footprints in the path. Police tracked the footprints to apartment 6A at Hutto-Melvor Homes. Cox’s mother had lived in that apartment until the time of her death three weeks earlier. The apartment was vacant at the time of the robbery, and when police searched it, they located a box containing photographs of Cox.

Sometime between 6:00 and 6:45 on the morning of the robbery, Herman Peterson saw Cox and Dell Washington running out from the dirt path across the road from Hutto-Melvor Homes. They paused for a few minutes to look up and down the road. One of the men was not wearing a shirt, and the other had on a white t-shirt and blue pants. Cox was carrying a gun. He covered the gun with a towel before the men crossed the road and headed toward apartment 6A. Peterson testified that the gun introduced at trial was similar to the gun he had seen Cox carrying that morning.

At around 7:30 that same morning, Washington asked Jerry Perkins to give Cox and him a ride. Perkins took them to two separate locations, and they paid him $50-60. Perkins testified that when they paid him, he saw that they each had “folded up, knots of money.” Washington told Perkins that they got the money when they robbed a store.

Subsequently, the police initiated an undercover operation using Perkins as an informant to recover the gun used in the robbery. As a part of the undercover operation, Perkins also recorded a conversation in which Washington stated that he and Cox had robbed the store. He said that Cox had used a gun during the robbery. Washington confirmed these statements at trial.

“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . .” OCGA § 16-8-41 (a). Washington’s testimony directly implicates Cox iii the armed robbery and establishes all of the elements of the crime. But:

[i]n a felony case, there can be no conviction upon the testimony of an accomplice, unless the same is corroborated by other evidence connecting the accused on trial with the perpetration of the crime, and tending to show his participation therein.

(Citation and punctuation omitted.) Whitlock v. State, 239 Ga. App. 763, 764 (1) (521 SE2d 901) (1999). It is up to the jury to decide what constitutes sufficient corroboration:

The sufficiency of the corroboration evidence is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting a defendant with the crime, the verdict is legally sufficient. . . . The necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime.

(Citation and punctuation omitted.) Berry v. State, 248 Ga. 430, 432 (1) (283 SE2d 888) (1981).

Here, Cox was seen shortly after the crime emerging from a path that led from the store and carrying a gun which he tried to conceal in a towel. Footprints on that path led directly to the apartment where Cox’s mother had lived weeks before. Within two hours of the robbery, Cox paid Perkins with cash he pulled from a large wad of money. We find that this evidence was ample to corroborate Washington’s testimony and, thus, the evidence was sufficient to support the jury’s verdict. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided May 3, 2000.

Ernie M. Sheffield, for appellant.

J. Brown Moseley, District Attorney, Anthony E. Paulsen III, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Miller, J., concur.


author: Barnes, Judge.

text:
    A00A0247.
    BRACEWELL v. THE STATE.
    (534 SE2d 494)
   Barnes, Judge.

A jury convicted Gaynor Bracewell II of voluntary manslaughter, and the trial court sentenced him to serve 20 years. Bracewell appeals, arguing that the trial court erred in giving the State’s charge on justification and absolute necessity and that his trial counsel was ineffective because he did not object to the charge. He further asserts his trial counsel was also ineffective because he “did not adequately challenge the State’s version of the shooting,” and allowed the State to introduce improper hearsay testimony. Finally, he contends that the trial court erred in declining to give his charge on defense of habitation. Because we find that giving the charge on justification and absolute necessity was harmful error, we reverse.

Construed to support the verdict, the evidence showed that Bracewell, his girlfriend, Kelly Springer, and her two sons, Brent and Brannon, lived together in a house owned by Bracewell’s father. Bracewell and Springer were going to buy the house together. On the Friday night before the shooting on Saturday evening, Springer was angry at Bracewell. Her son Brannon, who was 17, told her the night before that Bracewell had supplied Brannon with the bag of marijuana that led to his arrest a year before. Brannon also told her that he had used speed with Bracewell earlier in the month. Springer said this was the first she had heard about her boyfriend and son sharing drugs, and when she confronted Bracewell about it, he admitted both incidents. Springer told him she and her children were leaving as soon as they could borrow some money to do so.

The next evening, Saturday, Springer pulled into the driveway after staying with her ailing father most of the day. She sat in the car drinking beer and listening to the radio. Bracewell came out to encourage her to come inside, but she declined until she had to use the bathroom. When she came out of the bathroom, Bracewell started arguing with her, and she lost her temper. She chased him through the house, and he ran upstairs to lock himself into a bedroom. She followed and began kicking ineffectually at the locked door. Brannon came out of another bedroom, asked if she wanted the locked door open, and then kicked it off its hinges for her.

Meanwhile, Bracewell ran through another doorway and down the stairs out to the porch. Springer followed and pushed him into a rocking chair, then put her hand on his leg, leaned over him, and began shaking her finger in his face and yelling at him about his drug use with her son. After Bracewell began hitting her in the head and kicking her, Brannon ran out of the house with a pistol in his hand.

Bracewell said, “Oh, shit,” got up, and went inside, locking the front dooi. Brannon walked down the porch steps into the yard and said, ‘Wall quit fighting. I’m sick of this.” He fired one shot into the air and another shot into the ground, then threw the pistol aside. At that point, in a blind rage, Springer began kicking the locked front door.

Springer’s 15-year-old son, Brent, and his 14-year-old cousin, Joseph, unlocked the front door and came out, saying Bracewell told them to get out of the house as he was loading a shotgun. The two boys hid on the side of the porch. Brannon came up behind Springer and tried to calm her down, saying, “Stop, you’re tearing up the doorjamb it took me an hour to fix last week.” He pinned her until she stopped struggling, then stood her up against a front porch column.

According to his mother, brother, and cousin, Brannon then went to the front door and yelled out, “Gaynor, it’s me, Brannon. I am coming in. I don’t have the gun.” Using his right hand, he opened the front door about six or eight inches, took one step inside the foyer, and Bracewell fired a shotgun toward the door. According to Bracewell, however, Brannon screamed, “I’m going to kill you,” kicked in the front door, and advanced toward Bracewell with a pistol aimed at him.

Springer went around Brannon and took a few steps inside to see the kitchen door open and Bracewell gone. She heard Brannon say, “Mom, I have been hit.” He collapsed on the porch, and despite the efforts of his family and the emergency medical technicians who arrived shortly thereafter, Brannon died at the scene.

Medical examiner Parker testified that he recovered buckshot from four individual wounds. He saw no gunpowder or residue on the victim’s clothing, from which he estimated that the shots were fired from a distance of about ten to twelve feet. The fatal wounds came from buckshot that hit Brannon in the heart and right lung. Parker concluded from the trajectory of the buckshot that Brannon was turned to the left, away from the muzzle of the shotgun.

1. We conclude that the evidence as outlined above was sufficient for a rational trier of fact to find Bracewell guilty beyond a reasonable doubt of the voluntary manslaughter. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Bracewell argues that the trial court erred in giving a portion of the State’s charge on duty to retreat.

The first part of the charge, about which Bracewell does not allege error on appeal, is from the suggested pattern jury charge on retreat, grouped under the other charges relating to justification.

One who is not the aggressor is not required to retreat before being justified to using [sic] such force as is necessary for personal defense or in using force which is likely to cause death or great bodily harm, if one reasonably believes such force is necessary to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.

The next paragraph, about which Bracewell does allege error, reads as follows:

One who is himself to blame, however, has not the same right of standing his ground and of justification as one who is not at fault. When the slayer is at fault, then to justify the homicide, he must show that there was an absolute necessity to kill to save his own life and that the person killed was the assailant or that the slayer had really in faith [sic] endeavored to decline any further struggle before the mortal blow was given.

Bracewell argues that the standard of “absolute necessity” in this charge is impermissibly higher than the “reasonable man” standard set forth in all of the statutory justification charges. He further contends that the error was harmful, as confirmed by the fact that the jury twice asked to be recharged on the law of self-defense and justification. The State responds that the charge is a valid proposition of law on the duty to retreat, from Glover v. State, 105 Ga. 597, 598 (31 SE 584) (1898).

The court in Glover held that the trial court did not err in refusing to give a request to charge on retreat which was too broad. Id. The court held that:

one free from fault may, without retreating, take human life and be justifiable, if the circumstances are sufficient to excite the fears of a reasonable man that a felonious assault is about to be made upon him, and the slayer, who is free from blame, acts under the influence of such fears, with the bona fide purpose of preventing the felony from being committed upon him. One who is himself to blame, however, has not the same right of standing his ground and of justification as one who is not at fault. When the slayer is at fault, then, to justify the homicide, his defense must come up to the principles of law embodied in section 73 of the Penal Code, — that there was an absolute necessity to kill to save his own life, and that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given.

Id. at 598-599.

The Supreme Court of Georgia held in Johnson v. State, 253 Ga. 37 (315 SE2d 871) (1984) that, although the criminal codes in 1894 and 1984 were silent on the duty to retreat in self-defense cases, “silence of the present code on the issue of when duty to retreat may arise was not intended to eliminate the principles pronounced in Glover” Id. at 38. The court in Johnson found reversible error in the trial court’s failure to charge that the defendant had no duty to retreat if he were not the aggressor. Id. at 39. Other cases discussing retreat generally address whether a trial court erred in failing to give a defense charge that the accused had no duty to retreat. See, e.g., Conklin v. State, 254 Ga. 558, 566-567 (5) (331 SE2d 532) (1985).

While the principles of Glover regarding the duty to retreat are still sound, the “absolute necessity” language is not. The Glover court noted that the absolute necessity standard reflected the principles of law embodied in Section 73 of the Penal Code. Id. at 599. That section, which traces at least as far back as the 1833 Cobb’s Digest, provided:

If a person kill another in his defense, it must appear that the danger was so urgent and pressing at the time of the killing, that, in order to save his own life, the killing of the other was absolutely necessary; and it must appear, also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given.

Section 73 of the Penal Code. The section was also adopted verbatim in subsequent codifications of Georgia law as Code § 26-1014.

A long line of Supreme Court of Georgia cases held that Code § 26-1014 applied only in cases of mutual combat, and contained a harsher rule than the one found in the section on self-defense. See, e.g., Brown v. State, 223 Ga. 76, 80 (3) (153 SE2d 709) (1967). Even if mutual combat were an issue in these earlier cases, the Supreme Court held that it was error to charge Code § 26-1014 along with the sections on self-defense and the “reasonable man” standard of fears without explaining the differences. Id.

The 1968 revision of the Criminal Code of Georgia significantly altered the justification provisions. The Committee Notes indicate that the new Code Ann. § 26-902 changed the law regarding mutual combat and absolute necessity. Among other changes, the new section incorporated the “reasonable belief” section of former Code § 26-1012 regarding justification, which provided that: “A bare fear of any of those offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man. . . .” This standard was incorporated into Code Ann. § 26-902 (a). Code Ann. § 26-902 (b) provided that the justification in subsection (a) was available to a mutual combatant only if he withdrew from the encounter and communicated his withdrawal to his opponent. The “absolute necessity” standard no longer appears in the Criminal Code.

Our appellate courts have found error in charging the jury that, to be justified, a defendant must show an absol ite necessity to kill in cases of mutual combat, which imposes a higher threshold of justification for the killing than that required by the statute. Murray v. State, 254 Ga. 351, 352 (2) (329 SE2d 485) (1985); Gerald v. State, 189 Ga. App. 155, 156 (1) (375 SE2d 134) (1988). Therefore, we conclude that trial counsel’s failure to object to the charge that, to be justified, defendant must show the killing was an absolute necessity constituted deficient performance. Next we consider whether that deficient performance prejudiced the defense.

The jury asked twice to be recharged on the issues of self-defense and justification. “Clarity in this portion of the charge was critical to an issue of defense, and since the discrepancy between the incorrect charge and the statutory provision more likely than not confused the jury, it prejudiced [the] defendant ].” Gerald, supra, 189 Ga. App. at 156 (1). Thus, we must conclude that the trial court erred by denying Bracewell’s motion for new trial on this issue.

3. Because it may arise again on retrial, we will consider Braeewell’s argument that the trial court erred in giving the State’s request to charge on the definition of a “reasonable man” who is justified in committing homicide. The trial court charged the jury as follows:

Bare fear on the part of a defendant shall not be sufficient to justify a killing. It must appear the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of those fears and not in a spirit of revenge.
The fears of the slayer that will justify a homicide must be the fears of a reasonable man and if the defendant is an unusually timid man or lacking in courage, and committed the homicide under circumstances that would not generate fears in a hypothetical reasonable man, he would not be justified.
Thus, the law in homicide cases does not take into account the actual fears of the slayer, but considers all the circumstances with reference to determination as to whether they were sufficient to excite the fears of a reasonable person.

The first and third paragraphs essentially paraphrase the pattern charge on the doctrine of reasonable beliefs. Bracewell contends that giving the second paragraph of this charge was error because it did not allow the jury to consider how a reasonable person in the defendant’s particular circumstances would act, considering the prior difficulties between the defendant and the victim.

Juries are permitted to consider how a reasonable person in defendant’s particular circumstances would react. Nelson v. State, 254 Ga. 611, 614 (2) (331 SE2d 554) (1985). Bracewell’s argument that the second paragraph of the quoted charge removes from the jury any consideration of prior difficulties between him and the victim is belied by the wording of the charge itself. The second paragraph merely restates that the standard by which the jury should decide whether a homicide was justified is that of a reasonable man in the circumstances presented.

Further, the trial court also charged the jury that:

[e]vidence of prior difficulties between the defendant and the alleged victim has been admitted for the sole purpose of illustrating, if it does show [sic] illustrate, the state of feeling between the defendant and alleged victim and the bent of mind and course of conduct on the part of the defendant.

Finally, the court instructed the jury that the State had the burden of proving beyond a reasonable doubt that the defendant was not justified. Along with the court’s explanation of the burden of proof and the State’s responsibility to prove each element beyond a reasonable doubt, the court explained that it would be the jury’s duty to acquit appellant if the State failed in this regard. These instructions, taken as a whole, were sufficient. Doss v. State, 262 Ga. 499, 500 (3) (422 SE2d 185) (1992); Campbell v. State, 207 Ga. App. 902, 906 (5) (429 SE2d 538) (1993). We find no error in the trial court giving this charge to the jury.

Decided May 3, 2000.

Cook & Connelly, Bobby Lee Cook, L. Branch Connelly, Rex B. Abernathy, for appellant,

Alan A. Cook, District Attorney, for appellee.

4. Bracewell’s remaining enumerations of error are unlikely to arise again on retrial.

Judgment reversed.

Blackburn, P. J, and Eldridge, J., concur.


author: Miller, Judge.

text:
    A00A0572.
    WELCH v. THE STATE.
    (534 SE2d 471)
   Miller, Judge.

Convicted of burglary and kidnapping with bodily injury, Willie Welch moved for a new trial on the general grounds and on the ground that he received ineffective assistance of counsel. After two evidentiary hearings, the court denied the motion. Because evidence supports the jury’s verdict and the court’s ruling, we affirm.

1. The enumeration of the general grounds specifically challenges the evidence identifying Welch as the attacker. Construed in favor of the verdict, the trial evidence showed that Welch knocked at the victim’s apartment and requested that she call him a cab. The victim recognized “Willie” as a laborer who had been repairing water damage at her apartment and gave him her phone book to use. When the victim unchained her door to hand Welch her phone, he burst in, grabbed her arm and throat, and demanded money. He then dragged her fighting and screaming outside the apartment to a more secluded area. There he attempted to rape her by pinning her to the ground and undoing her pants. As Welch undid his own pants, the victim tried to twist away, and Welch mashed her face into the ground. Hearing the victim’s screams, a neighbor investigated and scared Welch away.

Police arrived to find the victim in a distraught and disheveled shape, with cuts requiring stitches on her hands and marks on her neck. The apartment and area outside indicated a struggle. Having clearly seen and recognized Welch’s face in the light of her apartment and having heard him identify himself as “Willie,” she reported his name and likeness to police. Before an hour had passed, an officer familiar with Welch found him within a mile of the scene, whereupon Welch fled.

Forensics determined that one of Welch’s fingerprints was on the phone book. The victim picked Welch’s picture out of a photo lineup and unequivocally identified him in court as the attacker. Combined with Welch’s presence near the scene, this evidence amply sustains the convictions under the standard of Jackson v. Virginia. Welch’s contention on appeal that the evidence was insufficient to prove he was the attacker is without merit.

2. Citing seven alleged errors by trial counsel, Welch argues that he received ineffective assistance of counsel. “To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense.” With regard to the first prong, Welch bore the burden at the new trial hearings of overcoming the strong presumption that his counsel’s conduct fell within the broad range of reasonable professional conduct. With regard to the second prong, Welch had to show that the alleged deficient performance actually prejudiced his case, i.e., that there was a reasonable probability the jury would have reached a different verdict absent the error of counsel.

Welch makes no effort on appeal to show he met the second prong other than (with one exception) to conclude each subsection of his brief discussing an alleged error with the mantra, “Additionally, there is a reasonable probability that the outcome of the trial would have been different, but for trial counsel’s” error. The one time he tries to articulate how the error would have affected the jury’s verdict is his argument that the jury would have found reasonable doubt if counsel had presented evidence of alleged test results of blood and hair samples taken from Welch. Yet Welch presented no evidence below that these test results existed or what they would have shown. Moreover, no evidence showed that blood or hair samples were taken from the crime scene, and the State presented no forensic evidence (other than the fingerprint) linking Welch to the scene. The argument of prejudice is nothing more than rampant speculation. Thus, Welch wholly failed to show the second prong required to establish an ineffective assistance claim.

Decided May 3, 2000.

Sullivan & Sturdivant, Harold A. Sturdivant, Michele W. Ogle-tree, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

Moreover, with regard to the other six alleged errors, Welch also failed to show the first prong, i.e., that counsel’s performance was deficient. The decisions on which witnesses to call, what objections to make, and what defenses to pursue are strategic choices that, when made after thorough investigation, are virtually unchallengeable. In this case, it is unnecessary to address individually each and every one of Welch’s six instances of challenged trial tactics. Our review of the two evidentiary hearings in which trial counsel defended his decisions reveals ample support for the trial court’s conclusion that Welch failed to carry his burden of showing deficient performance. Accordingly, we affirm.

Judgment affirmed.

Pope, P. J., and Smith, P. J., concur.

       OCGA § 16-7-1 (a).

       OCGA § 16-5-40 (b).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Miller v. State, 208 Ga. App. 547 (1) (430 SE2d 873) (1993) (burglary); Jessup v. State, 224 Ga. App. 176, 177 (480 SE2d 232) (1996) (kidnapping with bodily injury).

       See OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”); Ringo v. State, 236 Ga. App. 38, 40 (510 SE2d 893) (1999).

       (Punctuation and footnote omitted.) McClarity v. State, 234 Ga. App. 348, 350 (3) (506 SE2d 392) (1998), citing Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

        McClarity, supra, 234 Ga. App. at 350 (3).

        Concepcion v. State, 205 Ga. App. 138, 139 (421 SE2d 554) (1992); accord McClarity, supra, 234 Ga. App. at 350 (3).

        Esquivel v. State, 236 Ga. App. 325, 326 (512 SE2d 61) (1999).

       See id.; see generally McClarity, supra, 234 Ga. App. at 350 (3) (clearly erroneous standard applies to findings on ineffective assistance).


text:
    A00A0713.
    NASH v. STATE OF GEORGIA.
    (534 SE2d 492)
   Miller, Judge.

In this civil forfeiture action to condemn personal property, including $43,814.86 in U. S. currency seized from respondent Tony Randall Nash, the petition alleged that on April 27, 1999, officers from the North Fulton Drug Task Force executed a search warrant of Nash’s residence and found cocaine, ecstasy, drug-related paraphernalia and some $10,000 in cash, all of which property Nash allegedly conceded was traceable to drug proceeds. At that time, police also found “deposit receipts and keys to a safety deposit box at [a particular branch of an identified bank in] Atlanta, Georgia.” On April 29, police executed a search warrant for the safety deposit box and seized $33,020 in U. S. currency. The forfeiture petition was filed on Monday, June 28. In his answer, Nash contended the forfeiture petition was untimely and demanded the return of his honestly acquired property. From the judgment forfeiting the same, Nash appeals. His sole enumeration of error contends the trial court erred in failing to dismiss the forfeiture petition as untimely. We affirm.

“Within 60 days of the date of seizure, a complaint for forfeiture shall be initiated. . . ,” And if the State fails to initiate forfeiture proceedings against property seized for forfeiture by notice of pending forfeiture within the specified time limit, “the property must be released on the request of an owner or interest holder, pending further [forfeiture] proceedings. . . .” Nash contends the 60-day limitation period began to run on April 27, 1999, the date approximately $10,000 in cash plus other personalty was actually seized from his house. And because the key to a safety deposit box at an identified branch of a local bank was also seized on April 27, Nash further urges that the $33,020 in cash subsequently seized from that safety deposit box was in the constructive possession of police from April 27.

However persuasive Nash’s constructive possession argument is, it is not determinative, because the actual date of the seizure is not counted for purposes of determining the running of the OCGA § 16-13-49 (h) (2) 60-day limitation period.

[W]hen a period of time measured in days, weeks, months, years, or other measurements of time except hours is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted; and, if the last day falls on Saturday or Sunday, the party having such privilege or duty shall have through the following Monday to exercise the privilege or to discharge the duty.

So assuming, arguendo, that the State was in constructive possession of whatever was in the identified safety deposit box because it had seized Nash’s key on April 27, nevertheless, the time for computing the 60-day limitation period did not commence until the following day, April 28. The sixtieth day thus fell on Saturday, June 26, 1999. Under OCGA § 1-3-1 (d) (3), the State had through the following Monday to discharge its duty to file a forfeiture petition. As this petition was in fact filed on Monday, June 28, 1999, the trial court did not err in failing to dismiss this civil forfeiture petition as untimely under OCGA § 16-13-49 (h) (2).

Decided May 3, 2000.

O. Jackson Cook, for appellant.

Paul L. Howard, Jr., District Attorney, Gary S. Hulsey, Christopher M. Quinn, Assistant District Attorneys, Awtrey & Parker, Harvey D. Harkness, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, P. J., concur.

       OCGA § 16-13-49 (h) (2).

       OCGA § 16-13-49 (h) (3).

       OCGA § 1-3-1 (d) (3). See also OCGA §§ 9-11-6 (a) and 9-11-81.


text:
    A00A0747.
    GRAVES v. DIAMBROSE et al.
    (534 SE2d 490)
   Blackburn, Presiding Judge.

Dean Graves d/b/a Dexterity was hired by Michael and Sharon Diambrose to refinish hardwood floors in their home. While performing this work, Graves damaged the Diambroses’ home by: (1) pouring stain and sealer into the kitchen sink and spilling it on the Corian countertops, thereby staining them; (2) attempting to remove these stains using coarse sandpaper; (3) placing wet rollers and brushes on the carpet, thereby staining it and clumping it with sealer; and (4) leaving the hardwood floors in an unfinished, unsightly manner. Although Graves agreed to pay for the damage, he failed to do so, and the Diambroses were forced to sue for recovery. The Diambroses then moved the trial court to grant a motion for summary judgment, which Graves did not answer. The trial court granted the motion, awarding the Diambroses $11,241.50 in compensatory damages and $770 in attorney fees. On appeal, Graves admits liabilty, but he contends that the trial court erred in its award of compensatory damages and attorney fees. For the reasons set forth below, we affirm.

1. Graves contends that the trial court erred by awarding the Diambroses $11,241.50 in compensatory damages, contending that there was insufficient evidence to support the award.

In support of their claims, the Diambroses submitted personal affidavits recounting the damage, and Michael Diambrose averred that a cost of $11,241.50 would have to be incurred to repair his home: (1) $3,150 to repair the hardwood floors; (2) $1,000 to remove and replace the backsplash behind the kitchen counter; (3) $815 to remove and replace the sink; (4) $5,618 to replace the Corian countertops in the kitchen; (5) $250 for plumbing services; and (6) $408.50 to replace carpeting. In addition, the Diambroses supplied the trial court with estimates from contractors to support each of their replacement cost estimates.

“ ‘Generally, the proper measure of damages for defective workmanship would be the cost of repair of the defect.’ ” Paul Davis Systems &c. v. Peth, 201 Ga. App. 734, 736 (1) (412 SE2d 279) (1991). Furthermore, the cost of repairs is the appropriate measure of damages for injury caused to a building or home. Oglethorpe Realty Co. v. Hazzard, 172 Ga. App. 98, 100 (4) (321 SE2d 820) (1984). The trial court correctly applied these principles to the evidence presented by the Diambroses which allowed calculation of the cost of repair to a reasonable certainty. As such, there was no error.

2. Graves also contends that the trial court erred by granting the Diambroses $770 in attorney fees.

“OCGA § 13-6-11 allows (attorney fees) where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. Further, whether or not the defendant/appellant acted in bad faith in its contractual relations is an issue for the jury to determine.” (Punctuation omitted.) [Dept. of Transp. v. Dalton Paving &c., 227 Ga. App. 207, 218 (5) (489 SE2d 329) (1997)]. “Bad faith warranting an award of attorney fees must have arisen out of the transaction on which the cause of action is predicated. It may be found in defendant’s carrying out the provisions of the contract, that is, in how defendant acted in his dealing with the plaintiff. Bad faith other than mere refusal to pay a just debt is sufficient, provided it is not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive. So defendants can be held liable for attorney fees if they committed the breach in bad faith.” (Citations and punctuation omitted.) Young v. A. L. Anthony Grading Co., 225 Ga. App. 592, 593 (484 SE2d 318) (1997). “As to whether the defendant was stubbornly litigious or caused the plaintiff unnecessary trouble and expense, mere refusal to pay a disputed claim, without suit is not sufficient to award attorney fees. The key to the test is whether there is a bona fide controversy. Where none exists, forcing a plaintiff to resort to the courts in order to collect is plainly causing him to go to unnecessary trouble and expense. However, recovery of attorney fees for stubborn litigiousness is not authorized where there is a bona fide controversy.” (Citations and punctuation omitted.) Typo-Repro Svcs. v. Bishop, 188 Ga. App. 576, 580 (2) (373 SE2d 758) (1988).

Decided May 3, 2000.

Robert H. McDonnell, for appellant.

Miles & Reese, Elizabeth J. Csehy, for appellees.

Wheat Enterprises v. Redi-Floors, 231 Ga. App. 853, 856-857 (1) (c) (501 SE2d 30) (1998).

In this case, the trial court could have properly found that Graves acted with bad faith or that he caused the Diambroses unnecessary trouble and expense by failing to make the repairs to their home. According to the Diambroses, Graves agreed to repair their home shortly after it was damaged; however, despite many requests by the Diambroses, Graves never fulfilled his promise, despite the fact that, in the proceedings below, he admitted that he was responsible for all of the damage except with regard to the Corian countertops. On appeal, he admits liability for all of the damage. Because Graves failed to make repairs as promised, the trial court could find that he had agreed to make the repairs in bad faith. In addition, because Graves forced the Diambroses to file a lawsuit to recover for damage Graves freely admitted to causing, the trial court could have also found him to be stubbornly litigious. Wheat Enterprises, supra. As such, the trial court appropriately assessed attorney fees against Graves.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A00A0757.
    HALL v. THE STATE.
    (534 SE2d 196)
   Blackburn, Presiding Judge.

Charles B. Hall, Jr. appeals his conviction for armed robbery and aggravated assault, contending that he received ineffective assistance of counsel because his attorney failed to subpoena certain alibi witnesses. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the record shows that, on the morning of September 15, 1997, Hall and a compatriot approached Deana Mahones’ car, posed as high school students, and asked for a ride to school. Mahones agreed to give them a ride, and Hall pulled a gun on her. Mahones then fled the car, which Hall stole and drove to Tuskegee, Alabama. There, Hall led police on a high-speed chase before he was stopped and arrested for the theft. Hall’s former girlfriend testified that Hall described the theft to her and asked her to cash a forged check belonging to Mahones’ boyfriend, which he had found in Mahones’ vehicle. At trial, Mahones positively identified Hall as her assailant, and Hall was convicted for one count of armed robbery and two counts of aggravated assault.

On appeal, Hall contends that his trial counsel provided ineffective assistance by failing to call his Alabama probation officer and his mother as alibi witnesses. Specifically, Hall argues that these witnesses would have provided testimony that he was in Alabama at the time that Mahones’ car was stolen in Atlanta.

The proper standard to be employed in determining enumerations concerning ineffective assistance of counsel, whether based upon a claim of right arising under federal or state law, is the two-pronged test announced in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). First, appellant must show that counsel’s performance was deficient; second, he is required to show that he was prejudiced by counsel’s deficient performance. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy. As to the second prong, the question is whether there exists a reasonable probability that, but for his counsel’s errors, the jury would have had a reasonable doubt regarding appellant’s guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . Further, a trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.

(Punctuation omitted.) Cromartie v. State, 241 Ga. App. 718 (1) (527 SE2d 228) (1999).

With regard to his probation officer, Hall maintains that he met with her on the morning of the robbery. Hall’s trial counsel, however, testified that she contacted the Alabama department where Hall reported for probation and could not confirm his story. She further indicated that the information that she received would not serve as an alibi for Hall, and, accordingly, the probation officer was not subpoenaed.

With regard to Hall’s mother, Hall contends that .his mother could have provided telephone records that, on the day of the robbery, he called her collect at her place of business from Alabama. Hall, however, provided no evidence to confirm this, and his attorney, who had interviewed Hall’s mother prior to the trial, could not remember Hall or his mother ever informing her of such a call. Moreover, Hall’s testimony concerning the time of the call was equivocal at best, and, on cross-examination, he indicated that he actually called his mother after his arrest rather than on the day of the robbery.

Decided May 3, 2000.

Carey & Dobson, Emerson Carey, Jr., for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Keith E. Adams, Assistant District Attorneys, for appellee.

Hall’s arguments regarding these alleged alibi witnesses fail both prongs of the Strickland standard. First, his trial counsel’s decision not to call either of these witnesses, whose potential testimony was questionable and would likely not have supported an alibi defense, falls under the category of trial strategy, which this Court will not second-guess.

The decision as to which defense witnesses will be called is a matter of trial strategy and tactics, and tactical errors do not constitute ineffective assistance of counsel. The fact that appellant and . . . present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that appellant received representation amounting to ineffective assistance of counsel.

(Punctuation omitted.) McCant v. State, 234 Ga. App. 433, 436 (3) (506 SE2d 917) (1998).

Second, Hall has failed to show that he was harmed by any alleged failure of his trial counsel. At'the hearing on this issue, Hall provided no evidence, other than his bare assertions, that his mother or his probation officer could support his alibi argument. Therefore,

[bjecause [Hall] has not carried his burden of showing affirmatively by the record both that his lawyer’s performance was deficient and that he was prejudiced by such deficiency, we must uphold the trial court’s denial of [his] motion for a new trial on the ground of ineffective assistance of counsel.

Moore v. State, 242 Ga. App. 249, 253 (529 SE2d 381) (2000).

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


author: Eldridge, Judge.

text:
    A00A1017.
    WILDER v. THE STATE.
    (534 SE2d 487)
   Eldridge, Judge.

A Cobb County jury found Donnell Reginald Wilder guilty of armed robbery and obstruction of an officer for acts he, and allegedly three co-defendants, perpetrated at the EZ Serve convenience store on Delk Road in Marietta. He appeals, claiming five errors of law. Finding no merit to Wilder’s claims, we affirm.

1. Wilder first contends that the State impermissibly commented on his right to remain silent. In support of this contention, Wilder directs our attention to that portion of the trial transcript where the lead detective testified about his initial approach of Wilder: “I told him I was a detective and told him my name and told him what I was investigating and I told him that I was going to advise him of his constitutional rights.” Immediately following this testimony, Wilder’s defense counsel asked to approach the bench, because he knew Wilder had invoked his right to remain silent and wanted to prevent the officer’s testimony from entering improper areas. During the bench conference, the issue was resolved to all parties’ satisfaction, and the State’s questions to the detective moved onto a different subject.

Thereafter, the State questioned the detective about the statement given by one of Wilder’s co-defendants, Jamaine Madric. The detective testified: “I advised him of his constitutional rights and he acknowledged them and consented that he would speak with me.” The detective testified that the conversation with Madric was taped; the tape was moved into evidence; and the prosecutor asked the detective to read aloud the Miranda warnings that he gave to Madric. The detective did so.

Now, before this Court, Wilder claims that the detective’s testimony regarding the rights he gave Madric violated Wilder’s right to remain silent, thereby depriving him of due process of law under the constitution. However, defense counsel interposed no objection to this testimony, and so, the issue is waived. Brewer v. State, 219 Ga. App. 16, 19 (4) (463 SE2d 906) (1995). Further, we find no factual basis for Wilder’s claim of error, since the State’s inquiry as to what the detective told Madric cannot be considered a comment on Wilder’s silence.

2. Each of Wilder’s co-defendants gave a statement to the lead investigator; their individual statements were recorded on three separate microcassettes. During trial, the State laid a foundation for the physical admission of the tapes. Defense counsel did not object to the physical admission of the tapes but reserved objection should the State later seek to play them to the jury. The State did not so seek. In his second enumeration of error, Wilder contends that the State violated his constitutional right of confrontation by physically introducing the three tapes. However, the physical admission of the tapes was proper, and defense counsel — rightly — did not object. Consequently, we find this issue to be waived, even as we reject Wilder’s attempts to manufacture a confrontation clause issue based on the physical admission of taped statements that were never put before the jury.

3. Absent timely objection, we will not review Wilder’s contention that reversal is required because the State allegedly “mischaracterized” the evidence during closing argument. “[A] defendant’s failure to object to the State’s closing argument waives his right to rely on the alleged impropriety of that argument as a basis for reversal.” Mullins v. State, 270 Ga. 450, 451 (511 SE2d 165) (1999).

4. Wilder next challenges the sufficiency of the evidence supporting his conviction under Count 2 of the indictment for obstruction of an officer. Wilder contends that the stop of the Subaru Legacy in which he was riding was improper and, thus, the evidence fails to show that the officer was engaged in the “lawful discharge of his duties,” as required by OCGA § 16-10-24.

A Fourth Amendment challenge to the stop of the Subaru was not made in the court below. We will not consider one now. There being no constitutional issue raised below and ruled upon, such issue therefore is not preserved on appeal. Meders v. State, 260 Ga. 49, 54 (2) (b) (389 SE2d 320) (1990).

Further, the evidence shows that the Subaru was stopped because at 2:30 a.m. virtually alone on the road, it was exceeding the speed limit away from the scene of the EZ Serve robbery which had just been reported as “in progress.” The speeding, alone, would have permitted the officer to make a traffic stop. Tuggle v. State, 236 Ga. App. 847, 848 (1) (a) (512 SE2d 650) (1999). However, when the officer activated his blue lights, the Subaru did not stop. When the car finally stopped in an apartment complex, Wilder got out and fled. It was that act that gave rise to the obstruction charge. We find the evidence sufficient for the jury to have found Wilder guilty beyond a reasonable doubt of misdemeanor obstruction of an officer. Id. at 848 (1) (e).

Decided May 3, 2000.

Ruth P. Marks, for appellant.

Patrick H. Head, District Attorney, Maria B. Golick, Thomas A. Cole, Assistant District Attorneys, for appellee.

5. Finally, Wilder contends that his trial attorney’s performance was so deficient that his Sixth Amendment right to effective assistance of counsel was violated. However, Wilder’s appellate counsel failed to raise this claim against trial counsel during the motion for new trial that she argued on Wilder’s behalf.

Our Supreme Court has clearly stated that the rule that an ineffectiveness claim must be raised at the earliest practicable moment requires that the claim be raised before appeal if the opportunity to do so is available; that the ability to raise the issue on motion for new trial represents such an opportunity; and that the failure to seize that opportunity is a procedural bar to raising that issue at a later time.

(Citations and punctuation omitted; emphasis in original.) Landers v. State, 236 Ga. App. 368, 370 (3) (511 SE2d 889) (1999). Accordingly, this claim of error is waived. Render v. State, 240 Ga. App. 762 (525 SE2d 134) (1999).

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       The three alleged co-defendants, Marquis Antonio Little a/k/a David Jamaine Madric, Jr., Clyde Morrison, and James Augustine Tallent, are not before us.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       We also find no error in the State’s remarks during closing that the evidence of the offenses “was undisputed.” The State may properly argue that the evidence of guilt has not been rebutted or contradicted. Elam v. State, 211 Ga. App. 739, 740-741 (3) (440 SE2d 511) (1994). Moreover, there was no objection to the prosecutor’s remarks, and we do not find that they were “of such a character that a jury would naturally and necessarily construe them as a comment on appellant’s failure to testify.” (Citation and punctuation omitted.) Id. at 741.

       See Manley v. State, 187 Ga. App. 773, 777 (6) (371 SE2d 438) (1988).

       See Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996).