text:
    A92A1808.
    THE STATE v. SLATER et al.
    (428 SE2d 676)
   Johnson, Judge.

Timothy Lebrón Slater was indicted for trafficking in cocaine, possession of cocaine with intent to distribute, and possession of a firearm during the commission of a crime as a result of a search which took place after a traffic stop. The trial court granted Slater’s motion to suppress evidence, finding that the arresting officer had an “ulterior motive to interdict drug trafficking.” The state appeals from that order, contending that the trial court erred in finding that the stop was pretextual. We agree and reverse.

At approximately 11:00 p.m. on January 12, 1992, a Cherokee County deputy sheriff was parked in the median of Interstate 75 observing northbound traffic. He noticed that the tag light was out on a passing car and “fell in” behind it. After following the car for three-quarters of a mile, the deputy observed the car weaving over the lane lines and pulled it over. The deputy approached the car and asked the driver, Slater, to step to the rear of the car. Three passengers remained inside. The deputy asked Slater for his driver’s license. Slater was unable to produce it, explaining that he had left his wallet at his cousin’s house. Slater later told the deputy that he had left his wallet and license at the stadium. The deputy then asked the passengers where they had been. The passengers responded that they had been to a club. None of the passengers mentioned anything about a ballgame, even when the officer asked them if they had been anywhere else. The deputy issued a ticket to Slater for failure to maintain lane. He then asked for and obtained Slater’s oral and written consent to search the car for illegal drugs, money, and guns. The search produced cocaine and a firearm. Slater was arrested.

Decided March 9, 1993.

Garry T. Moss, District Attorney, T. Russell McClelland III, Assistant District Attorney, for appellant.

“[I]n determining when an investigatory stop is unreasonably pretextual, the proper inquiry is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.” (Emphasis in original; citations and punctuation omitted.) Tarwid v. State, 184 Ga. App. 853, 854 (1) (363 SE2d 63) (1987). The deputy testified that he pulled Slater’s car over for failure to maintain lane and a tag light violation. He further testified that he regularly stops motorists for weaving because of the number of drivers driving under the influence of alcohol on Interstate 75 at that time of the night. A reasonable officer would have stopped Slater under the circumstances presented here. See Guerrero v. State, 198 Ga. App. 397 (401 SE2d 749) (1991) (where this court affirmed the denial of a motion to suppress evidence after concluding that a reasonable officer would have stopped defendant after observing him weave several times on the interstate).

We recognize that on a motion to suppress evidence, the trial court sits as the trier of fact and its finding should not be disturbed by this court if there is any evidence to support them. State v. White, 197 Ga. App. 426, 427 (398 SE2d 778) (1990). Although the arresting officer was heavily trained to recognize the drug courier profile, the record is devoid of evidence suggesting that the officer used a “drug courier profile” or any other pretext in stopping Slater’s car. The stop was clearly predicated upon the undisputed fact that Slater was violating the traffic laws of this state. The trial court erred in granting Slater’s motion to suppress.

Judgment reversed. Pope, C. J., and Carley, P. J., concur.

David L. Cannon, for appellees.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A92A1885.
    ORMAN v. THE STATE.
    (428 SE2d 813)
   Johnson, Judge.

Jerome Chie Orman appeals from his convictions of trafficking in heroin and possession of marijuana. In his enumerations of error, he challenges the denial of his motion to suppress evidence and he questions the sufficiency of the evidence. We affirm.

1. Orman contends that the trial court erred in denying his motion to suppress evidence. After reviewing the transcript of the suppression hearing, we find this contention to be without merit. The facts proved at the hearing are as follows: While on duty at the Atlanta Airport, members of the DEA drug task force observed Orman deplaning a flight from Miami, Florida. Orman was carrying a black leather bag. Inside the airport, Orman began speaking with a man later identified as Godfrey Obiozor, who had deplaned from the same flight. The men sat down in the gate area and Obiozor placed his garment bag over the black leather bag Orman had been carrying. The officers approached the men, sat down next to them, produced their police credentials, and asked the two men if they could speak with them. In response to a request to see their airline tickets, Obiozor handed him an envelope containing tickets for two persons, one for G. Obiozor and the other for F. Okwara. The officers requested identification from both of the men and inquired into their immigration status. Obiozor was able to produce satisfactory documents. Orman told the officers that his name was Jerome Chie, and that he did not have any identification. He also told the officers that he was a naturalized U. S. citizen, having been born in Nigeria. One officer asked Obiozor for the appellant’s name. Obiozor responded that it was “Mgurawa,” and spelled it. This name did not match the name on the airline ticket or the name given by Orman. The officers then told Obiozor that he was free to go, but informed Orman that he was being detained while the INS was contacted, regarding his immigration status. The officers asked Orman to carry his bags to the terminal at which point Orman told the officers that none of the bags belonged to him. Obiozor then claimed that all of the bags belonged to him, and that Orman had merely been carrying the black leather bag for him. The officers then requested and obtained consent from Obiozor to search the bags. In the black leather bag, the officers found identification for Jerome Chie Orman, marijuana, and a plastic bag containing heroin. The two men were charged with trafficking in heroin and possession of marijuana.

Decided March 9, 1993.

John A. Beall IV, for appellant.

Robert E. Keller, District Attorney, Gina S. Naugle, Assistant District Attorney, for appellee.

We need not address Orman’s argument that the contraband seized from the bag was the fruit of an illegal search because the record of the hearing on Orman’s motion to suppress shows that the trial court’s order was based, inter alia, on Orman’s abandonment of the bag prior to the search.

“ ‘Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. . . . The issue is . . . whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.’ ” Bassett v. State, 181 Ga. App. 597, 599 (353 SE2d 48) (1987). The facts in this case support a finding that Orman abandoned any rights he may have had in the bag prior to the search. Orman disclaimed the bag, refused to pick it up to take it with him after the officers requested that he select his bag and accompany them, stood silently by while Obiozor claimed ownership of the bag, and continued to stand silently by as it was searched. Under these circumstances, Orman could not entertain any legitimate expectation of privacy in the bag at the time of the search. See Williams v. State, 171 Ga. App. 546, 547 (2) (320 SE2d 389) (1984).

“The issue of abandonment is one of fact to be resolved by the trier of fact, and the finding of fact will not be disturbed on appeal if there is any evidence to support it.” Id. at 548. Since the record supports the trial court’s finding of abandonment, we find no error in the denial of Orman’s motion to suppress.

2. Orman further contends that there was insufficient evidence to support his conviction of trafficking in heroin. The transcript shows that Orman stipulated that heroin was found in the bag and that the amount of heroin found was sufficient to support a charge of trafficking in heroin. After a review of the record, we find the amount of heroin found was far in excess of that needed to support a charge of trafficking. See OCGA § 16-13-31 (b). Orman argues, however, that the evidence was insufficient to tie him to the crime. We disagree. Reviewing the evidence most favorably to the verdict, we find that there was sufficient evidence to support Orman’s conviction of trafficking in heroin such that a rational trier of fact could find him guilty of that crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.


author: Andrews, Judge.

text:
    A92A2070.
    MOORE v. THE STATE. FLOWERS v. THE STATE.
    A92A2382.
    (428 SE2d 678)
   Andrews, Judge.

Moore and Henry Flowers, along with two of Flowers’ brothers, were jointly tried on a five-count indictment charging as follows: Count 1 charged Jasento Flowers and appellant Moore, his girl friend, with a July 22, 1991 sale of cocaine to undercover officer Barkley; Count 2 charged Jasento and appellant Henry Flowers with a second sale to Barkley on July 25, 1991; Count 3 charged Jasento Flowers with a third sale to Barkley on August 20, 1991; and Count 4 charged Jasento Flowers, Moore, and Edward Flowers with possession with intent to distribute for a sale on October 7, 1991. Moore appeals her convictions on Counts 1 and 4 (convicted of simple possession) and Henry Flowers appeals his conviction on Count 2. They will be considered together.

Viewed in favor of the verdict, the evidence was that in July an undercover operation was conducted in the Macon area to discover and prosecute crack cocaine sales. Investigator Nelson (working with the Macon-Bibb County drug squad) received information that crack was being sold from 1129 Cochran, the residence of Jasento Flowers and his girl friend and her baby. On July 22, 1991, Barkley went to that address where she saw Jasento on the porch. He asked her what she wanted and she replied “60” (meaning $60 worth in the drug trade). Jasento then escorted her into the residence where he went into the room on her right. At that point, Moore came out of the bedroom and asked her if she wanted it. When Barkley answered affirmatively, Moore took out a bundle of small packages wrapped in plastic and unwrapped it. Barkley asked if they were “tens or twenties,” meaning were the rocks priced at $10 or $20 each. Moore said they were twenties and told her to take three, which she did. She did not see Jasento again after he went into the bedroom. A female in the kitchen called for “Alice” as she left. Although Barkley did not know Moore’s identity at that time, her middle name is Alice.

On July 25, 1991, she returned to the residence. Jasento was again on the porch, asked how much she wanted, and she replied “60.” He told her to go in and she observed a male in the living room. She asked if the girl was there and Henry Flowers responded negatively but asked her what she wanted. She again stated “60” and Henry went into the bedroom and returned with three pieces. Barkley then asked Jasento if it was okay to give Henry the money. Jasento replied it was “ok, he was straight.”

That same day, Barkley picked a photo of Henry from a spread prepared by Investigator Nelson and identified him as the second man in the apartment. Moore’s photo was picked from a spread four months later. The delay was caused by the fact that she had not been previously arrested and the police had no photo of her until her arrest on this case.

On October 4, 1991, Officer Ortiz (working with the Macon police drug squad and unaware of the ongoing joint investigation) obtained a search warrant for the residence of Jasento and Moore. When the officers arrived to execute the warrant on October 7, 1991, they observed Edward Flowers in the yard. He saw them coming, went to a window of the apartment, and dropped a package through a hole in the screen. When Moore finally opened the door for the officers after some delay, Ortiz observed a two-inch by two-inch ziplock bag under the window. It contained crack. He informed Moore that he intended to search the entire residence, including the children present. There was a baby on a love seat near the wall. At that point, another female present in the room, later identified as Cheney, stated that she was not going to jail for anybody and she had observed Moore put something in the baby’s diaper. The officers then searched the diaper and discovered another ziplock bag containing 43 pieces of crack. Jasento arrived about ten minutes after the search began.

1. There being evidence sufficient to convince any rational trier of fact of the existence of the essential elements of the crime, the judgment is affirmed as to both Moore and Henry Flowers. Jackson v. Virginia, 443 U. S. 307, 310 (99 SC 2781, 61 LE2d 560) (1979); Baldwin v. State, 153 Ga. App. 35, 37 (264 SE2d 528) (1980).

Case No. A92A2070

2. Moore’s first enumeration alleges error in the denial of her hearsay objection to the statement of Cheney as repeated by Ortiz.

The objection was “I’m going to object to that as hearsay.” The judge then correctly noted that the statement had been made in Moore’s presence.

“[A]nything seen or heard by a witness in the presence of a defendant is admissible and does not constitute inadmissible hearsay in this state. Moore v. State, 240 Ga. 210, 212 (2) (240 SE2d 68) (1977).” Hurston v. State, 194 Ga. App. 226 (390 SE2d 119) (1990). E.g., Reeves v. State, 194 Ga. App. 539, 540 (391 SE2d 35) (1990).

Therefore, admission of the statement was not error.

3. Moore also enumerates as error the restriction of her cross-examination of Ortiz concerning a statement given by Moore.

Moore’s statement contained the following: “Jasento was playing with the baby and Jasento must have put the cocaine in the diaper.” She was asked how long she had known he was involved in selling drugs and she said “Jasento told me that when I first met him.” She also indicated that he had no other employment and that he gave her cash for expenses.

Because of an obvious problem under Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968), counsel for the State and counsel for Jasento both requested redaction of Jasento’s name from the statement. This was done by replacing “Jasento” with “blank” when it was read to the jury.

Moore’s counsel asserted her right to cross-examine Ortiz and publish the name to assist Moore’s case. After the matter was discussed, the court ruled that if, at the end of the State’s case, “everybody (defendants) stands up and says none of our people are going to testify and you say I want to renew my motion to cross-examine Ortiz on this statement, I’ll consider it. I’m not saying [how] I’ll rule. I said I’ll consider it. That’s it.” To which, counsel for Moore responded “okay.”

At no point was this motion renewed and any objection has not been preserved for our review. Skipper v. State, 257 Ga. 802, 805 (7) (364 SE2d 835) (1988).

Case No. A92A2382

4. Henry Flowers’ first enumeration alleges that denial of his plea of former jeopardy based on OCGA §§ 16-1-7 and 16-1-8 was error.

The motion filed below alleges that he pled guilty on September 5, 1991 and that “[t]he substance of said charge was the same Sale of Cocaine of which Defendant stands charged in the instant case,” i.e., July 25, 1991.

Other than that statement in the pleadings, however, there is nothing else in the record concerning this issue except the judge’s statement of his conclusion “as a matter of fact that at the time Henry Lewis Flowers, Jr. pled guilty on the previous case, which was Indictment . . . 35569, . . . , entered that plea of September 5, 1991, that at that time it is true that another charge or series of charges in the district attorney’s office charging [him] with cocaine with intent to distribute, simple battery, obstruction of an officer and offenses that occurred on August 14, 1991 which were subsequently . . . nolle prossed, ... on September 26, 1991, that that was a part of the plea bargain arrangement under 35569. However, at the time those events that led to this indictment [37185] which occurred on July 25, 1991, that those events and circumstances were not known to the prosecuting officer, that is the district attorney’s office. Second, the agents working the [two separate cases] were not the same officers . . . and because of those findings of fact, the Court is going to deny the motion. . . .”

Decided March 9, 1993.

Christina L. Hunt, for appellant (case no. A92A2070).

Alan A. Gavel, for appellant (case no. A92A2382).

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Assis tant District Attorney, for appellee.

“ ‘Since this is a court for correction of errors of law, our decision must be made upon the record and not upon briefs of counsel. Where there is nothing in the record to support the contention of error, there is nothing presented to this court for review.’ . . . [Cit.]” Wiggley v. State, 204 Ga. App. 583, 584 (2) (420 SE2d 82) (1992).

5. Flowers next complains of the admission of Exhibit 5, the photo spread of him, on the grounds that it was impermissibly suggestive because of the fact that two photos out of five were of Flowers and that this fact was withheld from him prior to trial.

As to the second contention, however, the March 2, 1992 order of the court states that the district attorney maintained an “open file” policy on criminal cases and nothing in the record supports Flowers’ contention that the spread was withheld. Wiggley, supra.

As to the presence of two photos of Flowers in the spread, no objection to the introduction of that exhibit was made below. In fact, the testimony concerning the presence of the two was brought out by Flowers on his cross-examination of the officer who conducted the spread. This enumeration presents nothing for our review, no objection having been made below. Ray v. State, 259 Ga. 868, 870 (10) (389 SE2d 326) (1990).

6. The remaining two enumerations are addressed by our holding in Division 1, supra.

Judgment affirmed in Case No. A92A2070. Birdsong, P. J., and Beasley, J., concur. Judgment affirmed in Case No. A92A2382. Birdsong, P. J., and Beasley, J., concur.

       The appeal of Jasento Flowers has been transferred to the Supreme Court as it involves constitutional challenges to sentencing provisions, Case No. A92A2383. Edward Flowers pled guilty and testified at the trial.

       A verdict was directed for Moore on Count 5, which charged possession of a firearm during the commission of a felony on October 7, 1991.

       Her whereabouts were unknown at the time of trial.

       We note that the judge, in an abundance of caution, did instruct the jury that it was not introduced for the truth of the matter asserted, but only to explain the officer’s conduct in searching the diaper.


author: McMurray, Presiding Judge. Beasley, Judge, Blackburn, Judge,

text:
    A92A2081.
    THE STATE v. MOORE.
    (428 SE2d 815)
   McMurray, Presiding Judge.

Defendant was indicted during the May 1990 term of the Toombs County Superior Court for armed robbery and for being a recidivist. The trial court allowed defendant to file, pro se, a statutory demand for trial on May 21, 1991, during the February 1991 term of court. OCGA § 15-6-3 (24) (D). On August 9, 1991, the term of court (May 1991 term) following defendant’s demand for trial, the trial court entered an order, finding that defendant is “in prison under the control of the Board of Corrections . . .” and ordering “the Board of Corrections ... to surrender [defendant] into custody of the Sheriff of this said county or his lawful deputy for his production in court [on August 12, 1991].", On February 4, 1992, the trial court entered another order, requiring the “Board of Corrections . . .’’to turn defendant over to the Sheriff of Toombs County for appearance in court on February 10, 1992. On February 24, 1992, defendant filed a motion to dismiss the indictment based on the State’s failure to provide a speedy trial. The trial court granted the motion to dismiss, finding that “[s]everal court prisoner production orders have been executed by a judge of this court for appearance in this court after demands for trial were filed by the defendant or his counsel [and for] unexplained reasons the defendant has not been produced by the proper authorities.” This appeal followed. Held:

“OCGA § 17-7-171 governs demands for speedy trial in cases involving a capital offense and subsection (b) of that statute provides a three-prong procedure which must be complied with by defendants accused of such offenses in order for their demand for speedy trial to be effective. First, the demand must actually be filed with the court. Second, there must be juries impaneled and qualified to try the defendant at both of the first two regular terms of court following the term at which the demand is filed. Third, at some time during both of the first two regular terms of court following the term at which the demand is filed, the defendant must be present in court announcing ready for trial and requesting a trial on the indictment.” (Footnotes omitted.) Smith v. State, 261 Ga. 298, 299 (1) (404 SE2d 115). “[C]ompliance with the third prong may be accomplished either by the defendant himself or by his counsel. Dennis v. Grimes, 216 Ga. 671 (118 SE2d 923) (1961).” Smith v. State, 261 Ga. 298, 299 (1), fn. 3, supra.

In the case sub judice, defendant was represented by counsel at the time he filed, pro se, the statutory demand for trial. Further, defense counsel was in court when the case appeared on jury trial calendars in terms of court following defendant’s statutory demand for trial. However, defense counsel then failed to announce ready for trial and request a trial. Defense counsel simply explained that “[t]he district attorney [chose] not to call this case because they had not procured [defendant’s] presence here for trial.” This assertion provides no basis for excusing strict compliance with the mandatory three-prong requirements of OCGA § 17-7-171 (b).

In Dennis v. Grimes, 216 Ga. 671, 672 (3), supra, the Supreme Court held that a defendant’s inability to personally appear in court due to imprisonment and announce ready for trial at the appropriate terms following a statutory demand does not excuse failure to appear in court and announce ready for trial when defense “counsel.. . could have done this for him... .” Id. at 673. Nonetheless, the minority fails to distinguish Dennis from the case sub judice or recognize its binding effect. The minority’s reliance upon OCGA § 24-10-60 (a) is misplaced. Nothing in that Code section prohibits a defendant’s counsel from appearing in court and announcing ready for trial. See Dennis v. Grimes, 216 Ga. 671, supra.

“It is as elemental as ABC that the Court of Appeals is bound by decisions of the Supreme Court.” Hogan v. State, 118 Ga. App. 398, 400 (163 SE2d 889). The Supreme Court’s holding in Dennis is clear and indistinguishable from the case sub judice. Consequently, the trial court erred in granting defendant’s motion to dismiss the indictment. See Smith v. State, 261 Ga. 298, 299 (1), fn. 3, supra.

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

Beasley, Judge,

dissenting.

Defendant’s demand for trial was effective May 21, 1991, when it was approved by the court. OCGA § 17-7-171 (a). This was during the February term, as the May term did not begin until the fourth Monday, May 27. OCGA § 15-6-3 (24) (D). Because defendant was in the custody of the Department of Corrections, the court on July 25 ordered his production in court “immediately ... for trial preparation ... in his defense.” That was during the May term, the first term following the demand. He was not produced. Again during that May term, the court on August 9 ordered his production on August 12 because he was “needed ... as a witness ... in the defense.” He was not produced.

On September 4, during the next term, which began August 26, counsel filed another “demand” which in effect was a reminder of the court-approved demand of May 21. The August term passed with no production order and no call of the case for trial.

Finally, on February 4, near the end of the November term, the court ordered the production of defendant “for a hearing” on February 10, still within the November term. Defendant was not produced and no hearing was held.

On February 24, the first day of the February 1992 term, defendant filed a motion to dismiss the indictment for want of a speedy trial. This was in the fourth term following the term in which the demand became effective a whole year earlier. Production orders had been entered for defendant’s production during both the May and August 1991 terms, which were the two regular terms after the term at which the demand was effectively filed. The inaction of the State prevented him in each instance from being present to announce ready. Certainly his counsel could not do so, as trial could not commence without him. Moreover, the State never called the case for trial.

I agree that the State cannot prevent defendant from fulfilling the requirements for invoking his right to a speedy trial under OCGA § 17-7-171.

Blackburn, Judge,

dissenting.

I respectfully dissent.

Appellee filed a demand for speedy trial pursuant to OCGA § 17-7-171 during the February 1991 term of court. During the May 1991 and August 1991 terms of court, juries were impanelled and qualified to try appellee. Thus, he must be discharged and acquitted provided that he “was present in court announcing ready for trial and requesting a trial on the indictment.” OCGA § 17-7-171 (b).

Decided March 9, 1993.

Richard A. Malone, District Attorney, William S. Askew, Assistant District Attorney, for appellant.

Thomas O’Donnell, for appellee.

In Dennis v. Grimes, 216 Ga. 671 (118 SE2d 923) (1961), relied upon by the majority, the Supreme Court held that the absence of the accused from the court due to his incarceration did not absolve the accused of compliance with the above-quoted requirement of presence in the courtroom because, the court reasoned, “he was represented by counsel who could have done this for him.” Id. at 673. Here, however, unlike the situation in Dennis, the court had entered ex parte orders pursuant to OCGA § 24-10-60 (a) requiring the Board of Corrections to deliver appellee to the custody of the sheriff so that he could be present at court. OCGA § 24-10-60 arises from “the court’s inherent power ... to procure the attendance of convicts” in court, Flagg v. State, 11 Ga. App. 37, 40 (74 SE 562) (1912), and provides that the sheriff “shall take custody of the prisoner on the date named in the order.” (Emphasis supplied.)

Given the mandatory language of OCGA § 24-10-60 (a), I cannot agree with the majority that Dennis controls the case at bar. Reading Dennis to mean that the defendant’s presence at court for the purpose of compliance with OCGA § 17-7-171 is not required even if ordered by the court would render OCGA § 24-10-60 meaningless. “A legislative body should always be presumed to mean something by the passage of an Act and an Act should not be construed so as to render it absolutely meaningless. [Cits.]” (Punctuation omitted.) Buice v. Dixon, 223 Ga. 645, 646-647 (157 SE2d 481) (1967). Allowing the State to fail to comply with an order of the court compelling a defendant’s presence in court and then using that absence to circumvent the speedy trial demand is contrary to the mandatory language of OCGA § 24-10-60 (a) and the court’s power to compel a prisoner’s presence. Such a result also is at odds with the duty of “ ‘the courts and the prosecutors to assure that cases are brought to trial.’ ” Perry v. Mitchell, 253 Ga. 593, 594 (322 SE2d 273) (1984) (quoting Barker v. Wingo, 407 U. S. 514, 529 (92 SC 2182, 33 LE2d 101) (1972)). I do not believe that Dennis requires such a result.

Accordingly, I would affirm the judgment of the trial court.

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

       An order dated July 25, 1991, requiring defendant’s presence for trial appears in the record on appeal. However, the order does not bear any data reflecting a filing in the trial court. Consequently, even though the dissent authored by Judge Beasley cites this order, it may not be considered on appeal. “Until an order is signed by the judge [and is filed] it is ineffective for any purpose.” Majors v. Lewis, 135 Ga. App. 420, 421 (218 SE2d 130). In fact, “[i]t is elementary that an oral [or written] order is not final nor appealable until and unless it is reduced to writing, signed by the judge, and filed with the clerk. OCGA § 5-6-31, and Bishop v. State, 176 Ga. App. 357, 358 (335 SE2d 742) (1985); OCGA § 9-11-58, and Crowell v. State, 234 Ga. 313 (215 SE2d 685) (1975).” Sharp v. State, 183 Ga. App. 641 (1), 642 (360 SE2d 50).

       The dissent authored by Judge Beasley states that defendant’s case was not called for trial after defendant’s demand for speedy trial. However, this is of no consequence as the Supreme Court recently stated that “[c]ompliance with the third prong is mandatory and must be accomplished regardless of whether the case appears on a trial calendar during either of the first two regular terms following the term at which the demand was filed.” Smith v. State, 261 Ga. 298, 299 (1), fn. 3, supra.

       The order is part of the record in the case as certified by the Clerk.


author: Cooper, Judge.

text:
    A92A2132.
    OLIVER v. THE STATE.
    (428 SE2d 681)
   Cooper, Judge.

Appellant was convicted by a jury of criminal trespass and robbery.

Appellant and the victim lived together. However, prior to the incidents at issue in this case, the victim kicked appellant out of their apartment, and appellant had no keys. On the day in question, appellant entered through a window, took some items, and left. He returned that same night and started hitting the victim. A friend who was with the victim when appellant arrived went to call the police. Appellant then left, taking with him the victim’s purse. Appellant returned the purse the next day, but some items were missing from it. Appellant was charged with burglary and robbery but was convicted of the lesser included offense of criminal trespass and robbery.

1. In three enumerations of error, appellant argues that the trial court erred in allowing the state to present evidence of prior difficulties between appellant and the victim without the hearing and specific showings and determinations required under Williams v. State, 261 Ga. 640 (2) (409 SE2d 649) (1991). We agree. “[B]efore any evidence of independent offenses or acts may be admitted into evidence, a hearing must be held pursuant to Uniform Superior Court Rule 31.3 (B). At that hearing, the state must make three affirmative showings as to each independent offense or act it seeks to introduce. . . . After the 31.3 (B) hearing, and before any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particular independent offense or act.” Id. at 642. The three affirmative showings required are that the state seeks to introduce the evidence for a proper purpose, that there is sufficient evidence to establish that the accused actually committed the independent offense or act, and that “there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” Id. Moreover, the trial court’s determination that these three showings have been made must be a part of the record. Id. at n. 3.

Relying on Thomas v. State, 199 Ga. App. 49 (2) (404 SE2d 315) (1991), the state argued and the trial court apparently concluded that the Williams requirements did not apply to evidence of prior difficulties between the victim and the accused. However, the relevant holding of Thomas has been abrogated by Maxwell v. State, 262 Ga. 73 (2) (414 SE2d 470) (1992), in which the Supreme Court held that the requirements set forth in Williams for independent offenses or acts apply equally to prior difficulties or quarrels between the victim and the accused. The trial court therefore erred in allowing evidence of prior difficulties without making the necessary determinations, and appellant’s conviction must be reversed.

Decided March 9, 1993.

Maria T. Gonzalez, for appellant.

Lewis R. Slaton, District Attorney, Benjamin H. Oehlert III, Assistant District Attorney, for appellee.

2. Appellant further contends that the trial court erred in instructing the jury that “moral and reasonable certainty is all that can be expected in a legal investigation” because it might suggest that a lesser standard of proof than guilt beyond a reasonable doubt is required. Viewing the charge as a whole, we conclude the trial court did not commit reversible error because its charge accurately conveyed to the jury the applicability and meaning of the beyond a reasonable doubt standard. See Vance v. State, 262 Ga. 236 (2) (416 SE2d 516) (1992). However, we note that in footnote 5 of Vance, the Supreme Court describes the “ ‘moral and reasonable certainty’ ” language as unnecessary, unhelpful, and possibly misleading, and indicates that it should not be used in the future. Id. at 238, n. 5.

3. In his fifth enumeration of error, appellant challenges the trial court’s failure to charge the jury on the law of circumstantial evidence. The Supreme Court has recently clarified the law in this area: “[W]here the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request. This rule will apply whether or not the jury is authorized to find that the direct evidence presented by witness testimony has been impeached.” Robinson v. State, 261 Ga. 698, 699-700 (410 SE2d 116) (1991). In light of this clarification, we are confident that the trial court’s error in failing to charge on the law of circumstantial evidence, if any, will not recur.

4. Appellant also contends that the trial court should have granted his request to voir dire prospective jurors in panels of 12 in the jury box. We agree. See OCGA § 15-12-131; Mathis v. State, 176 Ga. App. 362 (336 SE2d 299) (1985). As appellant’s conviction already must be reversed, we need not address whether this error was harmless.

5. Appellant’s remaining enumerations of error are unlikely to be repeated on retrial.

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


author: Birdsong, Presiding Judge.

text:
    A92A2140, A92A2252.
    HARTLEY v. THE STATE (two cases).
    (428 SE2d 683)
   Birdsong, Presiding Judge.

Tom Hartley and Grace Marie Hartley appeal their convictions for two counts of burglary. Appellants were tried jointly. We have consolidated their appeals, as each asserts the same error: that the trial court committed reversible error in refusing to give an alibi charge.

The evidence showed that appellants were interrupted in their second burglary on July 31, 1991, and abandoned their van. On that night two collect calls were placed from a certain store in north Georgia to appellants’ thrift shop in South Carolina. Appellants’ son, Hank Hartley, testified that appellants left West Columbia, South Carolina in the van the week before the burglaries; on July 31, 1991, appellant Tom Hartley called his son and told him to bring blankets and sheets and come to get himself and Hank’s mother at a certain store in north Georgia, as Mrs. Hartley had broken her leg and was lying on the side of a hill. Hank Hartley collected his father near the store in the woods in north Georgia and then got his mother at a house where she was resting. Hank Hartley testified that his father told him his mother’s leg was broken when they ran from the second burglary scene. Mrs. Hartley claimed she broke her leg in Greenville, South Carolina, but no medical attention was sought until they reached West Columbia, South Carolina. She was in the hospital when interviewed in connection with these burglaries. Hank Hartley’s sister corroborated his story as to receiving calls to get their parents in Georgia; telephone records showed two collect calls were made from that certain store in Georgia to appellants’ store in South Carolina on July 31, 1991.

Neither of the appellants testified. The sole indication of any alibi arose when an investigator testified that at the hospital Mrs. Hartley told him she and her husband had been to an auction in South Carolina when the burglaries occurred in Rabun County, Georgia. Held:

According to appellants, the trial court was required to give a charge on alibi even in the absence of a request, if an affirmative defense of alibi is raised by the evidence, however slightly; appellants cite Dinnan v. State, 173 Ga. App. 191, 195-196 (325 SE2d 851); Dixon v. State, 157 Ga. App. 550 (278 SE2d 130); Heard v. State, 149 Ga. App. 92 (253 SE2d 454). We have held that a witness may testify as to what he saw and heard in the defendant’s presence (Reeves v. State, 194 Ga. App. 539, 540 (391 SE2d 35)) even where the defendant does not testify and is not available for cross-examination. This exception to the hearsay rule had its roots in the concept that the defendant’s right of cross-examination (Hewitt v. State, 127 Ga. App. 180, 182 (2) (193 SE2d 47)) or confrontation (Jefferson v. State, 136 Ga. App. 63, 66 (220 SE2d 71)) is not jeopardized by admission of evidence as to what was seen or heard in his own presence. When the defendant does not testify, such evidence is obviously admissible if it is an admission or confession, it is certainly admissible when the defendant testifies and is subject to cross-examination (see Hall v. State, 141 Ga. App. 289 (233 SE2d 262)); or when it is in the nature of res gestae. See Reeves, supra; Sosebee v. State, 190 Ga. App. 746, 750 (380 SE2d 464); Chambers v. State, 183 Ga. App. 874 (360 SE2d 438); Green v. State, 175 Ga. App. 849 (335 SE2d 4); Latimore v. State, 170 Ga. App. 848 (318 SE2d 722); Henderson v. State, 170 Ga. App. 482 (317 SE2d 343); see Broome v. State, 141 Ga. App. 538, 540 (233 SE2d 883).

However, that such evidence is not hearsay or is admissible as an exception to the hearsay rule does not prove such testimony is original evidence. The statutory definition of hearsay evidence is “that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” OCGA § 24-3-1 (a). The evidence which appellants say raised an affirmative defense of alibi may not be hearsay under the authorities cited above, but it did not rely for its veracity on either co-defendant, but on another witness’ statement as to what one of them said days after the burglaries.

The rule admitting what would otherwise be hearsay has limited application, even if the evidence is exculpatory to the complaining defendant. See Moore v. State, 240 Ga. 210, 212 (240 SE2d 68); King v. State, 202 Ga. App. 817, 819 (3) (415 SE2d 684). The investigator’s testimony that Grace Hartley gave a purported alibi was not original evidence as to the fact of alibi (see OCGA § 24-3-2; see Todd v. State, 200 Ga. 582 (37 SE2d 779)); nor was she or her co-defendant available for cross-examination and confrontation as to an alleged alibi. See Chambers, supra at 875; Green, Ga. Law of Evidence, pp. 497, 502, §§ 221, 224. Insofar as it established the fact of alibi, the evidence did not derive any value from the witness, but derived its value solely on the veracity and competency of Grace Hartley, who never testified. Although we have held such evidence is not hearsay, it nevertheless does not qualify as even “slight” evidence of an affirmative defense asserted by appellants in the trial so as to require a charge on alibi.

The jury charge as to the State’s burden to prove guilt beyond a reasonable doubt and the presumption of innocence was otherwise full and fair; in effect it authorized and directed the jury to acquit if they believed the statement allegedly made by appellant Grace Hartley was true. See Lavender v. State, 234 Ga. 608 (216 SE2d 855); see also Tarvestad v. State, 261 Ga. 605 (409 SE2d 513); Johnson v. State, 253 Ga. 37 (315 SE2d 871); Booker v. State, 247 Ga. 74 (274 SE2d 334). Appellants had the benefit of the evidence, but they were not entitled to a charge on alibi as a matter of law or to a reversal of the convictions because it was not given. In Plemons v. State, 194 Ga. App. 554, 556 (390 SE2d 916), we refused to reverse a conviction because the trial court charged on alibi, where the defendant did not testify and a witness’ second-hand testimony “authorized” a charge on alibi. But this does not mean such second-hand evidence demands a charge on alibi where the defendant does not take the stand and the alibi rests solely on another person’s statement as to what defendant told him, the same as if such evidence were hearsay; much less will we reverse the conviction founded on a full and fair charge.

Decided March 9, 1993.

Kenneth D. Kondritzer, for appellant (case no. A92A2140).

W. Thomas Slowen, for appellant (case no. A92A2252).

Michael H. Crawford, District Attorney, George N. Guest, Assistant District Attorney, for appellee.

Judgments affirmed. Andrews, J., concurs. Beasley, J., concurs in judgment only.


text:
    A92A2231.
    WRIGHT v. THE STATE.
    (428 SE2d 691)
   Johnson, Judge.

Andrew Wright appeals from his convictions of burglary, armed robbery, and aggravated assault.

1. Wright contends that there was insufficient evidence to support his convictions. This contention, is without merit.

Construed to support the verdict, the facts proved at trial are that Gerald Combe, Jr., Tony Ashe and Wright broke into the home/ office of the victims by “busting” through a screen door. Wright held the .38 caliber blue steel snubnose handgun which was used to commit the robbery. Once inside the home, Wright told the victims, at gunpoint, to “get on the fucking floor” while the other men stole money from the wallet of one of the victims and from the cash register. They tied up the victims with a belt and a lamp cord, and then fled through the back door.

After the crime, Wright told his friend, Hayward A. Jackson, that he had participated in the robbery and that he was the one who held the gun during its commission. Wright’s alibi testimony was disputed by several witnesses.

We find that there was overwhelming evidence to support Wright’s conviction of burglary, armed robbery and aggravated assault such that a rational trier of fact could find him guilty of those offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided March 9, 1993.

Waddell, Emerson, George & Buice, Hulane E. George, for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.

2. Wright contends that the trial court erred in allowing the state to read into evidence his testimony at his earlier trial for the same offenses which resulted in a hung jury. Wright concedes that the opinion in Edison v. State, 256 Ga. 67, 69 (344 SE2d 231) (1986) is controlling. We find no error.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.


text:
    A92A2263.
    HUFF v. THE STATE.
    (428 SE2d 818)
   Johnson, Judge.

Keith A. Huff was indicted for possession and sale of cocaine. The jury returned a verdict of not guilty on the possession charge but was unable to reach a verdict on the charge of sale of cocaine. The trial court dismissed the jury, apparently declaring a mistrial. Thereafter, the state sought to prosecute Huff again on the sale of cocaine charge. Huff filed a motion for plea in bar and former jeopardy which was denied by the court. Huff appeals.

1. Huff contends that the court erred in denying his motion for plea in bar and former jeopardy because his trial was improperly terminated.

It is well settled that the trial court has broad discretion in declaring a mistrial. Williams v. State, 202 Ga. App. 741 (415 SE2d 331) (1992). However, “[o]nce the jury has been impaneled, the court may not discharge the jury from giving a verdict unless there is a case of manifest necessity for such an act, or the ends of public justice would otherwise be defeated. ... In cases in which there is no manifest necessity for aborting a trial rather than using other less drastic remedies to cure problems, in the absence of defendant’s motion for a mistrial, the granting of a mistrial is an abuse of discretion.” (Citations and punctuation omitted.) Haynes v. State, 245 Ga. 817, 818-819 (268 SE2d 325) (1980). We have no basis upon which to determine whether the court made a determination of manifest necessity because the portion of the transcript required for our review of this issue was not included in the record. “(W)here the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court. . . . When this is not done, there is nothing for the appellate court to review.” (Citations and punctuation omitted.) Ivory v. State, 199 Ga. App. 283, 284 (1) (405 SE2d 90) (1991).

Decided March 9, 1993.

James H. Dickey, for appellant.

Robert E. Keller, District Attorney, Deborah N. Marón, Assistant District Attorney, for appellee.

2. Huff contends that the trial court procedurally erred in denying his motion for plea in bar and former jeopardy because the state did not respond to his allegation that the trial was improperly terminated. “It would have been appropriate for the State to file a general demurrer to the plea. The failure to do so does not mean, however, that the special plea in bar stands admitted. The failure to demur does not confess the action either in law or in fact, and the proof of the facts in the plea does not authorize a judgment unless the existence of those facts so authorize.” (Citation omitted.) Bell v. State, 249 Ga. 644, 645 (292 SE2d 402) (1982). The record shows that Huff filed his motion for plea in bar and former jeopardy and requested a hearing. The state opposed the plea at the hearing by way of argument on the legal questions presented. Huff received a fair and impartial hearing on the merits of his plea. Furthermore, Huff fails to show how the failure of the state to file a response to his plea has prejudiced him. We therefore find this argument to be meritless. Bell, supra at 645, 646; compare State v. Fowler, 182 Ga. App. 897, 898 (357 SE2d 329) (1987).

3. Huff contends that the trial court erred in refusing to disqualify himself from presiding over the motion for plea in bar and former jeopardy. Because Huff did not file an affidavit in support of his motion for recusal, he failed to comply with the requirements of Uniform Superior Court Rule 25.1. The trial court properly denied his motion. See Uniform Superior Court Rule 25.2.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.

       Although the court did not formally declare a mistrial at the conclusion of trial, it is clear from the record that the effect of the court’s action was a mistrial.


text:
    A92A2293.
    THREADMILL, LTD. v. FIRST UNION NATIONAL BANK OF GEORGIA et al.
    (428 SE2d 685)
   Johnson, Judge.

The Downtown Development Authority of Austell, Georgia issued $8,000,000 in bonds to generate loan proceeds to be used for the renovation of an historic mill owned by Threadmill, Ltd. Threadmill guaranteed repayment of the $8,000,000 by executing a loan agreement, a promissory note, and a deed to secure debt in favor of the authority. The promissory note was principally secured by the mill. The authority assigned the promissory note, loan agreement, and deed to secure debt to Georgia State Bank as indenture trustee. First Union National Bank of Georgia became the successor trustee as a result of a merger with Georgia State Bank. Threadmill defaulted on the promissory note and First Union began foreclosure proceedings against the mill. Threadmill filed a bankruptcy petition seeking to prevent foreclosure of its property. The bankruptcy court dismissed ThreadmilPs petition lifting the automatic stay of foreclosure. First Union foreclosed on the mill. Threadmill filed a complaint in superior court alleging wrongful foreclosure and interference with business relations by First Union. The trial court granted summary judgment to First Union. Threadmill appeals.

1. Threadmill alleges that the court erred in granting summary judgment to First Union on the wrongful foreclosure claim because there are material questions of fact as to whether the promissory note was supported by adequate consideration and whether First Union had knowledge of misrepresentations made to Threadmill by third parties. Threadmill has failed to support these allegations with any competent evidence in the record. “Allegations made in briefs but unsupported by the record will not be considered. [Cit.]” Dunlap v. First Rock Credit Corp., 194 Ga. App. 563, 564 (1) (390 SE2d 919) (1990). ThreadmilPs allegations are without merit.

When a prima facie showing is made that the moving party is entitled to judgment as a matter of law, the opposite party cannot rest upon the mere allegations in its pleadings, but must come forward with rebuttal evidence at that time or suffer a judgment against it. Dickey v. Harden, 202 Ga. App. 645, 648 (414 SE2d 924) (1992); Spicewood, Inc. v. Dykes Paving &c. Co., 199 Ga. App. 165, 168-169 (2) (404 SE2d 305) (1991). First Union supported its motion for summary judgment with affidavits and other evidence in the record showing that it proceeded in good faith in exercising its foreclosure rights under the deed to secure debt, loan agreement, and promissory note. Threadmill submitted no evidence in response to the motion and has pointed to no evidence in the record which rebuts the showings made by First Union. Threadmill has cited no evidence showing that the price realized on the foreclosure of its property was grossly inadequate and accompanied by fraud or any other improper circumstance. See Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. 327, 331 (1) (270 SE2d 867) (1980). Because Threadmill failed to rebut First Union’s showing that it properly foreclosed on the property, the court did not err in granting summary judgment to First Union on the wrongful foreclosure claim.

Decided March 9, 1993.

Foreclosure. Fulton Superior Court. Before Judge Langham.

Sumner & Hewes, William E. Sumner, A. Thomas Stubbs, for appellant.

King & Spalding, Joseph B. Haynes, Stephanie E. Parker, R. Christopher Cook, for appellees.

2. Threadmill contends that the court erred in granting summary judgment to First Union on the interference with business relations claim. That claim is based on the fact that First Union, when asked by tenants of Threadmill’s property about the status of the foreclosure proceedings, acknowledged the existence of such proceedings. These facts do not support a claim for interference with business relations because First Union simply acknowledged that it was exercising its contractual right, as authorized by the bankruptcy court, to foreclose. See Yamaha of Atlanta v. Yamaha Motor Corp. &c., 188 Ga. App. 413, 414 (1) (373 SE2d 95) (1988); Light v. Equitable Mtg. Resources, 191 Ga. App. 816, 817-818 (2) (383 SE2d 142) (1989). Further, notices of foreclosure are matters of public record. The trial court did not err in granting summary judgment to First Union on the interference with business relations claim.

Judgment affirmed. Pope, C. J., and Birdsong, P. J., concur. Corley, P. J., disqualified.

       The bankruptcy court did not rule on the issues now raised and therefore its decision • does not preclude our consideration of this appeal.


text:
    A92A2297.
    DANIELS v. THE STATE.
    (428 SE2d 820)
   Cooper, Judge.

Appellant was convicted of armed robbery and appeals from the entry of the judgment of conviction and sentence and the denial of his motion for new trial.

Viewed in a light to support the jury’s verdict, the evidence shows that on New Year’s Eve 1990, at approximately 8:00 p.m., appellant and a friend entered a sandwich shop and stood in the ordering line for a time, allowing other customers to order ahead of them. When the other customers had gone, appellant placed an order, and while one employee made his sandwich, appellant drew a black revolver, placed it on the chest of the store employee at the cash register and demanded the money in the register. Appellant took $80 and threatened the employees that he would shoot if they moved. When the police arrived, the employee who had been making sandwiches identified appellant by name as the perpetrator, recognizing appellant because they lived in the same apartment complex for several years, and during that time, the employee would see appellant standing at a bus stop every day. Thereafter, both employees identified appellant in a photographic line-up.

1. In his first enumeration of error, appellant contends the trial court erred in failing to charge the jury on mistaken identity after the court advised that appellant’s requests to charge would not be given but that the principle would be included in the court’s charge. Appellant argues that the charge given did not contain the phrase “mistaken identity” and thus, did not “substantially comply” with his requests to charge.

“ ‘ “(I)t is no longer necessary to give the exact language of requests to charge when the same principles are fairly given to the jury in the general charge of the court. (Cit.)” (Cit.)’ [Cit.]” Radford v. State, 202 Ga. App. 532, 534 (1) (415 SE2d 34) (1992). The court charged the jury as follows: “If, after considering all of the evidence on this issue and all the facts in this case, the identity of the defendant and his presence and participation in the crime alleged has not been established to a moral certainty and beyond a reasonable doubt, then you must acquit the defendant.” This instruction charged the essential principle embodied in appellant’s requests to charge, that appellant be identified as the perpetrator beyond a reasonable doubt. Accordingly, we find no error.

2. Appellant next contends the trial court erred in defining armed robbery in its charge as robbery committed by “use of an offensive weapon or by any replica, article or device having the appearance of such a weapon.” Appellant argues that because the indictment specifically alleged armed robbery “by use of a handgun; the same being an offensive weapon” the jury was erroneously instructed as to other means by which the offense of armed robbery could be committed. The trial court essentially charged the entire armed robbery statute. OCGA § 16-8-41 (a). “ ‘It is not usually cause for new trial that an entire Code section is given. (Cits.) This is so even though a part of the charge may be inapplicable under the facts in evidence. (Cits.)’ [Cit.]” Hambrick v. State, 204 Ga. App. 668, 671 (4) (420 SE2d 308) (1992). The evidence was undisputed that a handgun was used in the commission of the robbery, and although the court did not read directly from the indictment in the course of charging the jury, the indictment went out with the jury during its deliberations. Considering the charge in its entirety in connection with the evidence adduced at trial, the jury could not have been misled into convicting appellant of armed robbery by any means other than as charged in the indictment. Hambrick, supra.

3. The trial court also charged the jury as follows on the resolution of conflicts: “[I]n determining the facts in this case you may find conflicts in the evidence. And if you do find conflicts it would be your duty under the law to reconcile those conflicts, if possible. However, if you find any parts of the evidence are in such conflict as to make it impossible for you to reconcile it, then you must believe that evidence which seems most reasonable, probable and truthful to you, because you are the only ones that can make that decision.” Appellant contends that by instructing the jury that it “must believe that evidence which seems most reasonable,” the trial court coerced the jury into reaching a verdict and lowered the State’s burden to prove each element of the offense beyond a reasonable doubt. Appellant argues that the jury did not have a duty to believe the evidence which seemed most reasonable and, in fact, had the option of disbelieving that which seemed most reasonable. We disagree. The charge merely instructs that when possible, the jury is duty-bound to resolve conflicts in the evidence; however, in the event it is impossible to resolve a conflict, the jury should believe that evidence which seems most reasonable, in favor of or against the defendant. Moreover, the court’s instructions on reasonable doubt clearly set forth the State’s burden to prove each element of the offense charged beyond a reasonable doubt and of the responsibility of the jury to acquit, if the State fails to meet its burden.

4. Appellant contends the photographic line-up was impermissibly suggestive and tainted the store employees’ in-court identification because in an array of six photographs, his picture had a position of greater prominence than the other photographs. Appellant’s picture was in the center of the top row of three photographs. Appellant also complains that because the first photograph, was darker, the witnesses gave it less attention than the other five photographs. “ ‘Based on the evidence we find nothing which tainted the pretrial identification by photo spread, and nothing in that identification which would taint (the [victims’]) in-court identification of appellant. Whether a subsequent in-court .identification is tainted depends on all the circumstances of the case. Conviction based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Cits.)’ [Cit.]” Arnold v. State, 198 Ga. App. 449 (1) (402 SE2d 69) (1991). The record shows that one of the store employees identified appellant at the scene of the robbery, and it was because of that identification that the police included appellant’s photograph in the array. Furthermore, contrary to appellant’s contention, it cannot be assumed that the position of appellant’s photograph in the array gave the picture greater prominence and therefore increased the likelihood of its selection by the store employees. The employees had ample time to view appellant during the robbery and separately selected appellant’s photograph one week after the incident. This enumeration is without merit.

Decided March 9, 1993.

Michael T. McClain, for appellant.

Lewis R. Slaton, District Attorney, Leonora Grant, Sylvia A. Martin, Assistant District Attorneys, for appellee.

5. Finally, appellant takes exception to the court’s charge that “moral and reasonable certainty is all that can [be] expected in a legal investigation.” Appellant contends the charge lowers the State’s burden of proving each element of the offense beyond a reasonable doubt. This enumeration is also without merit. “ ‘The phrases, “to a moral and reasonable certainty” and “beyond a reasonable doubt,” as applied to the quality of proof in a case, are identical in meaning.’ [Cits.]” Dicks v. State, 155 Ga. App. 591 (271 SE2d 727) (1980).

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


text:
    A92A2307.
    McDONALD et al. v. SIMMONS.
    (428 SE2d 690)
   Johnson, Judge.

Edward and Mary McDonald filed this negligence action against Waunell Simmons, seeking damages for injuries sustained by Mr. McDonald when he fell through the floor of a home the appellants rented from Simmons. At trial, evidence of payments to the appellants or for their benefit from various collateral sources was presented to the jury pursuant to OCGA § 51-12-1 (b), and the jury was charged on the substance of the statute. On March 15, 1991, the jury returned a verdict in favor of Simmons. On that same day, the Georgia Supreme Court decided Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991). In Denton, the court held OCGA § 51-12-1 (b) unconstitutional. That statute was the only authority under Georgia law for admission of collateral source payment evidence. The McDonalds filed a motion for a new trial asserting, inter alia, that the court erred in charging the jury on OCGA § 51-12-1 (b). Thereafter, judgment was entered on the verdict and the McDonalds’ motion for a new trial was denied. The McDonalds appeal. We reverse.

Decided March 9, 1993.

David B. Pittman, Nathan B. Deaton, Miles, Baker & Morris, Keith M. Morris, for appellants.

Andrew, Threlkeld & Ellington, Reid A. Threlkeld, John J. Ellington, for appellee.

1. In Anepohl v. Ferber, 202 Ga. App. 552 (415 SE2d 9) (1992), we held that Denton must be applied retroactively to those cases still pending at the time Denton was decided. The appellants are correct in arguing that the holding in Denton should have been applied retroactively to their motion for a new trial. See Tyler v. Roberts, 204 Ga. App. 380, 381 (419 SE2d 103) (1992). Simmons’ argument that the appellants waived their objection to the unconstitutional charge because they failed to object to the charge on that ground at trial is without merit. See Roberts v. Amalgamated Transit Union, 205 Ga. App. 594, 595 (423 SE2d 16) (1992); see also Tyler, supra.

2. We need not reach the appellants’ remaining enumeration of error in view of our decision in Division 1.

Judgment reversed. Pope, C. J., and Corley, P. J., concur.


text:
    A92A2319.
    CLAYTON COUNTY BOARD OF TAX ASSESSORS v. LAKE SPIVEY GOLF CLUB, INC. et al.
    (428 SE2d 687)
   Johnson, Judge.

The Clayton County Board of Tax Assessors determined that the fair market value of the Lake Spivey Golf Club as of January 1, 1991, was $2,770,000. Lake Spivey Golf Club, Inc. and Golf South, Inc. d/b/a Lake Spivey Golf Club appealed the board’s decision to the superior court. The board served requests for production of documents on Lake Spivey, Golf South and two nonparties, Tara State Bank and the Small Business Administration (SBA). Lake Spivey and Golf South filed a motion for a protective order to prevent the board from obtaining any of the requested documents. The board filed a motion to compel discovery. At the hearing on the motions, the board presented one witness in support of its motion while Lake Spivey and Golf South presented no evidence. The court entered an order granting the motion for a protective order of Lake Spivey and Golf South and denying the board’s motion to compel. In its order the court also ruled that a prior jury verdict establishing the fair market value of the property on January 1, 1990, as $1,700,000 is admissible evidence at the trial of this case. We granted the board’s application for interlocutory review of the court’s order.

1. The board correctly contends that the trial court erred in ruling that the prior jury verdict as to the 1990 value of the property is admissible evidence. “Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.” OCGA § 24-2-1. The issue in this case is the fair market value of the golf club on January 1, 1991. The opinion of a jury, after hearing conflicting evidence, as to the value of that property a year earlier does not bear upon this issue either directly or indirectly. The instant case is analogous to condemnation cases in which the only question is the fair market value of the property on the date of the actual taking. In those cases, the jury cannot consider the value of the property prior to the actual taking. Brookhaven Assoc. v. DeKalb County, 187 Ga. App. 749, 750 (1) (371 SE2d 231) (1988). Similarly, the jury in the instant case cannot consider the value of the Lake Spivey Golf Club prior to January 1,1991. Only evidence which shows the value of the property on that date is relevant and admissible.

Moreover, direct testimony as to market value is in the nature of opinion evidence. OCGA § 24-9-66. “To give an opinion on value the witness must supply reasons by showing knowledge, experience or familiarity as to value.” City of Alma v. Morris, 180 Ga. App. 420, 421-422 (3) (349 SE2d 277) (1986). In the present case, there is no procedure by which the parties could question the jury in the prior case about the reasons for its opinion of the property’s 1990 value and the prior jury could not relate its opinion to the value of the property on January 1, 1991. The instant case cannot be used as a vehicle to retry that prior case. The trial court abused its discretion in ruling that the prior jury verdict is admissible evidence. See generally West v. Nodvin, 196 Ga. App. 825, 827 (2) (b) (397 SE2d 567) (1990).

2. The board contends that the trial court erred in issuing a protective order limiting discovery from the appellees and the two non-parties. The board asked Lake Spivey and Golf South to produce accounting records, income tax returns and appraisals of the value of the golf club. The board asked Tara State Bank and the SBA to produce any financial statements and any appraisals of the golf club’s value submitted by Lake Spivey or Golf South in connection with loan applications. “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. . . .” OCGA § 9-11-26 (b) (1).

Lake Spivey and Golf South argue that the documents requested from Tara State Bank and the SBA are privileged under OCGA § 24-9-27 (c) as advice of and consultation with professional advisers. This argument is wholly without merit. The documents requested by the board may contain admissions by Lake Spivey or Golf South, and other evidence, as to the value of the property in question. Such admissions are not the advice of a professional adviser and they cannot be considered part of a privileged consultation simply because they are included in a loan application.

The appellees also argue that the documents in the bank’s possession are protected under OCGA § 7-1-360, which provides, in pertinent part, “[n] either shall any financial institution be required to disclose or produce to third parties, or permit third parties to examine any records pertaining to a deposit account, loan account, or other banking relationship. . . .” This statute is intended to protect confidential banking records. It is not intended to hinder proper discovery in a lawsuit concerning the fair market value of taxable property, especially when the documents sought may contain evidence, including admissions by the taxpayer, as to the value of the property. The board has made no request for any communications, confidential or otherwise, from the nonparties to Lake Spivey and Golf South. The board simply wants access to the documents submitted by the appellees. The taxpayer cannot avoid discovery of such documents by making them part of a loan application.

Lake Spivey and Golf South contend that the trial court did not abuse its discretion in granting a protective order because the documents the board requested from them and from the nonparties are not relevant to the pending action. “[T]he extent of discovery and use of protective orders is generally within the discretion of the trial judge. However, this must be a sound and legal discretion based on evidence and a showing of good cause. Such orders are intended to be protective — not prohibitive — and, until such time as the court is satisfied by substantial evidence that bad faith or harassment motivates the discoveror’s action, the court should not intervene to limit or prohibit the scope of pretrial discovery.” (Citations, punctuation and emphasis omitted.) Bullard v. Ewing, 158 Ga. App. 287, 291 (279 SE2d 737) (1981). Lake Spivey and Golf South presented no evidence to the court in support of their motion for a protective order. They made no showing, by substantial evidence or otherwise, that the board is motivated by bad faith or harassment in requesting documents from them, the bank and the SBA. The board claims, and presented a witness who testified, that such documents may contain admissions by the appellees as to the property’s value, help appraise the property’s value by showing the income generated by it and be used to cross-examine the appellee’s witnesses. Lake Spivey and Golf South have not shown that the board’s claims are untrue. Even if the documents sought to be produced are not themselves admissible evidence, they are still discoverable so long as they appear reasonably calculated to lead to the discovery of admissible evidence. OCGA § 9-11-26 (b) (1). “The discovery procedure is to be given a liberal construction in favor of supplying a party with the facts without reference to whether the facts sought are admissible upon the trial of the action.” (Citations and punctuation omitted.) Deloitte Haskins & Sells v. Green, 187 Ga. App. 376, 379 (2) (370 SE2d 194) (1988). The court improperly limited the board’s scope of discovery as to the documents requested from Lake Spivey, Golf South and the nonparties.

Decided March 9, 1993.

Foster & Foster, Michael D. Anderson, for appellant.

Oliver, Duckworth, Sparger & Winkle, G. Robert Oliver, for appellees.

Judgment reversed. Pope, C. J., and Carley, P. J., concur.

       The SBA is not a financial institution under the terms of OCGA § 7-1-360. See OCGA § 7-1-4 (21).


text:
    A92A2321.
    ARNAU v. ARNAU.
    (429 SE2d 116)
   Johnson, Judge.

Francis and Marsha Arnau obtained a divorce in November 1982. Under the terms of the divorce decree, Ms. Arnau was awarded custody of their minor female child and Mr. Arnau was awarded specified visitation rights. Ms. Arnau filed a petition to modify the divorce decree, seeking to terminate Mr. Arnau’s visitation rights. The trial court entered a consent order on August 8, 1990, temporarily suspending Mr. Arnau’s visitation rights until further order of the court. Following a trial on the merits of the modification petition, the court entered an order terminating Mr. Arnau’s visitation rights with his daughter. We granted Mr. Arnau’s application for discretionary appeal.

1. Mr. Arnau contends that the trial court erred by engaging in ex parte communications prior to making its ruling. We agree. The trial court acknowledged in its order terminating Mr. Arnau’s visitation rights that it had conducted a post-trial ex parte meeting with one of the witnesses in the case, Dr. Ronald Berlin, a court-appointed psychologist. Although Mr. Arnau had the opportunity to cross-examine Dr. Berlin during the trial, he was denied the opportunity to cross-examine the witness with respect to any opinions he offered during the post-trial meeting with the court, or to respond to any new allegations or other evidence which may have been presented to the court. See generally Eason v. State, 260 Ga. 445, 446 (396 SE2d 492) (1990). The facts in this case are similar to those presented in Osgood v. Dent, 167 Ga. App. 406 (306 SE2d 698) (1983). There, the trial court by its admission relied on certain documents not in evidence and on conversations with persons who were not called as witnesses at trial and whom the appellant consequently had no opportunity to cross-examine. In reversing the award of custody in that case, we held that “the court’s acknowledged reliance on documents and testimony not in evidence was harmful error and highly prejudicial to appellant, thereby denying him the right to a thorough and sifting cross-examination of those offering evidence against him.” Id. at 409 (2).

Decided March 9, 1993.

Custer & Hill, Douglas A. Hill, for appellant.

Ms. Arnau argues that the substance of the statements made by Dr. Berlin during the ex parte meeting was consistent with his testimony at the hearing and a psychological report he had authored which was admitted into evidence. There is no transcript of the ex parte meeting included in the record and therefore nothing to support Ms. Arnau’s argument. Furthermore even if such a showing had been supported by the record, the fact that ex parte communication is merely cumulative would not make the consideration of such evidence harmless error. Ex parte communications are presumed to have been in error. See Uniform Superior Court Rule 4.1.

“[W]hen the court considers facts not properly in evidence, the other party has rights that can not be protected fully if he is thus denied the privilege of cross-examination. We know that citizens’ rights and liberties are jeopardized when courts abandon the tried and proven court procedure of admitting only relevant evidence and producing witnesses who are subject to cross-examination.” (Citations and punctuation omitted.) Id. at 410-411; see also In re C. C. B., 164 Ga. App. 3, 5 (2) (296 SE2d 198) (1982). Because so fundamental a right was denied Mr. Arnau as a result of the ex parte meeting, we must reverse the judgment of the lower court with direction that pending a new trial on the matter the parties shall be governed by the consent order entered August 8, 1990.

2. In view of our holding in Division 1, we need not address the remaining enumerations of error.

Judgment reversed and case remanded with direction. Pope, C. J., and.Carley, P. J., concur.

Richard L. Moore, for appellee.


text:
    A92A2323.
    In the Interest of J. D. G., a child.
    (429 SE2d 118)
   Johnson, Judge.

J. D. G., a 14-year-old child, was adjudicated delinquent on a charge of child molestation. On appeal, he contends that the juvenile court erred in admitting his confession into evidence, and that there was insufficient evidence to support the judgment.

1. J. D. G. complains that the juvenile court erroneously admitted into evidence the confession he gave to police officers during an interview at the police station. He argues that the confession should not have been admitted because it was given in violation of OCGA § 15-11-19 (a) (3). That Code section provides, in pertinent part: “A person taking a child into custody, with all reasonable speed and without first taking the child elsewhere, shall bring the child immediately before the juvenile court or promptly contact a juvenile intake officer.” Following a hearing on a motion to suppress his confession, the juvenile court ruled that J. D. G. had given his confession knowingly and voluntarily after being properly advised of his constitutional rights, and that OCGA § 15-11-19 was not applicable because the child was not taken into custody by the police officer.

We disagree with the juvenile court’s finding that J. D. G. was not taken into custody. “An arrest is accomplished whenever the liberty of another to come and go as he pleases is restrained, no matter how slight such restraint may be.” (Citations and punctuation omitted.) Bowers v. State, 151 Ga. App. 46, 49 (258 SE2d 623) (1979). Although the evidence presented at trial was conflicting, the court was authorized to find that Officer Mike Sullivan went to J. D. G.’s home pursuant to a complaint alleging that J. D. G. had raped the victim. The officer advised J. D. G.’s mother of J. D. G.’s rights, obtained her signature on a waiver of rights form, and was given permission to take J. D. G. to the police station for questioning. The officer asked J. D. G. if he would accompany him to the police station for an interview and J. D. G. agreed to do so. Nancy Melton, a caseworker for the Department of Family & Children Services, was present at the police station at the time J. D. G. was interviewed. She spoke with J. D. G. before he was interviewed and she also signed the consent form that his mother had signed earlier. Melton testified that J. D. G. told her that he wanted to speak with the officer. The officer advised J. D. G. of his constitutional rights, and asked him if he understood each right; J. D. G. indicated that he did, signed a waiver of rights form and told the officer that he wanted to speak with him. The officer testified that he did not observe anything about J. D. G. that indicated that he did not understand his rights. During the interview, J. D. G. confessed to inserting his finger in the victim’s vagina. Under these circumstances, we cannot conclude that a 14-year-old child, after being asked by a police officer if he would accompany him to the police station to discuss allegations of criminal conduct without being told that he was not required to accompany the officer, would have believed he was free to leave. Compare Ward v. State, 193 Ga. App. 137, 138 (1) (387 SE2d 150) (1989). We find that J. D. G. was in custody, and OCGA § 15-11-19 applies. The officer failed to comply with its provisions.

The officer’s failure to comply with the juvenile code does not, however, render J. D. G.’s confession per se inadmissible. See Paxton v. State, 159 Ga. App. 175, 178 (282 SE2d 912) (1981). In Paxton, supra, we held: “While the language of the statute [OCGA § 15-11-19] required the doing of a certain thing, that is, taking [the juvenile] immediately before the juvenile court. . . such language would generally be construed as directory and not as a limitation of authority and particularly so where no injury appears to have resulted. . . .” (Citations and punctuation omitted.) Id. at 178. The purpose of OCGA § 15-11-19 is to safeguard a juvenile’s rights while he is in custody. See id.

Under the totality of the circumstances in this case, we find that the technical violation of OCGA § 15-11-19 was harmless because J. D. G.’s rights were adequately protected prior to his confession. J. D. G. confessed only after he waived his rights knowingly and voluntarily, and with the knowledge and consent of both his mother and his legal guardian. See Barnes v. State, 178 Ga. App. 205, 207 (342 SE2d 388) (1986). Therefore, the juvenile court did not err in admitting the confession into evidence.

2. J. D. G. also argues that the juvenile court erred in admitting his confession because the police officer violated OCGA § 15-11-18.1. This argument was not raised at trial. We will not consider “issues and grounds for objection which were not raised and passed upon in the [lower] court.” (Citations and punctuation omitted.) Rhodes v. State, 200 Ga. App. 193, 195 (2) (407 SE2d 442) (1991).

3. J. D. G. asserts that the juvenile court’s disposition adjudicating him a delinquent was contrary to the weight of the evidence. This court determines the sufficiency of the evidence, not its weight. In the Interest of C. T., 197 Ga. App. 300, 301 (2) (398 SE2d 286) (1990).

An emergency room physician testified that he had examined the child victim finding that the area just outside of her vaginal entry was chafed. The victim’s aunt testified that J. D. G. was with the victim on the night the alleged molestation occurred. The police officer testified that J. D. G. had confessed that he placed his finger inside of the infant’s vagina. “Where a juvenile is charged with an offense which for an adult would be a crime, the standard of proof in the lower court is ‘beyond a reasonable doubt.’ ” In the Interest of C. D. L., 184 Ga. App. 412 (361 SE2d 527) (1987). Reviewing the evidence in the light most favorable to the judgment, we find that there was sufficient evidence such that a rational trier of fact could find J. D. G. guilty of child molestation beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We therefore find no error in the trial court’s disposition adjudicating J. D. G. a delinquent.

Decided March 9, 1993.

Gammon & Anderson, W. Wright Gammon, Jr., for appellant.

William A. Foster III, District Attorney, for appellee.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.

       The record shows that the Department of Family & Children Services was J. D. G.’s legal guardian.


author: Blackburn, Judge.

text:
    A92A2356.
    GENERAL MOTORS ACCEPTANCE CORPORATION v. NEWTON et al.
    (429 SE2d 120)
   Blackburn, Judge.

The appellant, General Motors Acceptance Corporation, petitioned the trial court for confirmation of the sale of certain commercial property purchased by the appellant at a non-judicial foreclosure sale. The appellant foreclosed upon the property pursuant to a power of sale contained within a deed to secure the indebtedness of a promissory note executed by the appellees, Herb and Beverly Newton, in favor of the appellant. After a hearing, the trial court found that the appellant’s evidence was insufficient to satisfy the court that the property sold brought its true market value at the foreclosure sale and therefore, denied the appellant’s request for confirmation of the sale. On appeal, the appellant contends that the court erred in denying confirmation because the evidence was sufficient to establish that the sale brought the fair market value of the property sold, and erred in admitting the opinion evidence of appellee Herb Newton, as to the fair market value of the property.

On August 31, 1990, the appellees executed a promissory note in the amount of $1,258,000 in favor of the appellant and a Deed to Secure Debt, on 11.99 acres of commercial property located in Fulton County for the operation of an automobile dealership. As a result of the appellees’ failure to timely repay the indebtedness according to the terms of the promissory note, the appellant instituted foreclosure proceedings pursuant to the power of sale contained in the security deed. The sale was advertised once a week for a four-week period prior to the sale date of October 1, 1991. At the non-judicial foreclosure sale of October 1, 1991, the property was sold to the appellant for a bid of $785,000, although the underlying debt secured by the property was $1,926,192 as of the date of the sale. After the sale, the appellant initiated the confirmation proceeding herein involved.

At the confirmation hearing, the appellant presented the testimony of Mack Bissette, a real estate appraiser who had appraised approximately five automobile dealerships within the three years immediately preceding the hearing, four of them for the appellant. In July 1991, Bissette inspected the property in question and on August 20, 1991, submitted a written appraisal of the property to the appellant. He also reinspected the property prior to the foreclosure sale and found the property to be in substantially the same condition. Bissette opined that the true market value of the property was $785,000 based upon the market approach to evaluating property. In using the market approach, Bissette analyzed approximately 12 sales in the Atlanta area and placed great emphasis on a sale of property in the immediate vicinity of the property in question. However, he admitted that the sale that he emphasized involved a much smaller property on which the structure was inferior, its suitable use was different and there was atypical financing available and it did not involve the sale of a property used for an automobile dealership. There has not been a sale of similar commercial property in the area where the property is located since 1987.

On cross-examination, the expert admitted that most of the time his lender-ordered appraisals are below the value of the outstanding note. He also admitted that the ratio of land to building square footage considered in his calculations may be incorrect. He further admitted that the land value used in his calculation may also be incorrect and could result in an increase in the value of the property by as much as $75,000. The property had been appraised by the Fulton County and City of Atlanta Appraiser’s Office for tax purposes in 1990 at $1,310,075 and in 1991, at $1,283,075.

A real estate agent who listed the property, testified that the property had been listed at $785,000 since November 1991. Although the property had been aggressively marketed, he had not received any written offers on the property but had received a verbal offer of $300,000.

Appellee Herb Newton testified that he has been involved in the automobile dealership business for approximately twenty years and has owned five dealerships. In his opinion the property was worth $2,400,000.

The appellant contends that the trial court erred in finding that the evidence was insufficient to satisfy the court that the real property sold under the power of sale brought its true market value at the foreclosure sale, in denying confirmation, and in admitting evidence from Herb Newton on the issue of fair market value.

The primary issue at a confirmation hearing of a foreclosure sale under a power of sale contained in a deed to secure a debt is a judicial ascertainment that the property brought at least its true market value on the foreclosure sale. Wheeler v. Coastal Bank, 182 Ga. App. 112 (354 SE2d 694) (1987). What the market value of the property is under the circumstances is a question of fact to be resolved as others are and the weight to be given it is for the judge in the non-jury hearing. Kent v. Scott Hudgens Realty & Mtg., 138 Ga. App. 30 (225 SE2d 447) (1976). “ ‘On appellate review, the test is not whether this court would have accepted appellant’s expert appraisals as the most reliable and accurate, but whether the record contains any evidence to support the findings of the trial court. . . . Although the evidence was in conflict as to the market value of the property, the findings of the trial court are supported by the evidence and are not clearly erroneous.’ [Cit.]” Marett Properties v. Centerbank Mtg. Co., 204 Ga. App. 265, 267 (419 SE2d 113) (1992).

The trial court denied confirmation of the sale based upon the evidence presented at the hearing, including the testimony elicited from the expert witness on direct and cross-examination who admitted that his calculations could be incorrect by as much as $75,000. The trial court also considered the conflicting opinion evidence of appellee Herb Newton. Although the appellant contends that the court erred in admitting the opinion testimony of Newton, OCGA § 24-9-66 specifically provides opinion evidence on market value may be furnished by a non-expert who has had an opportunity for forming a correct opinion. As this court has recognized in Dixon v. Williams, 177 Ga. App. 702, 704 (340 SE2d 286) (1986), “ ‘[t]he owner of property is considered to be qualified to state his opinion as to value. (Cits.)’ ” “The question of whether a witness has established sufficient opportunity for forming a correct opinion or has stated a proper basis for expressing an opinion is for the trial court. [Cits.]” Dept. of Transp. v. McLaughlin, 163 Ga. App. 1, 5 (3) (292 SE2d 435) (1982). Newton testified as to his 20-year experience in the car dealership business and this experience was sufficient for the admission of his testimony on the market value of this property.

We conclude that the evidence was sufficient to support the trial court’s denial of confirmation of the non-judicial foreclosure sale because the evidence did not show that the sale brought the true market value of the property and accordingly, the decision of the trial court is without error.

Decided March 9, 1993.

McCullough & Payne, John G. McCullough, Michael D. Payne, for appellant.

Phears & Moldovan, H. Wayne Phears, Darrin R. Schutt, Joseph D. Young, Steve J. Davis, for appellees.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


author: COOPER, Judge.

text:
    A92A2371.
    HUBBARD v. THE STATE. DORSEY v. THE STATE. FREE v. THE STATE.
    A92A2372.
    A92A2373.
    (429 SE2d 123)
   COOPER, Judge.

Appellants were charged with possession of an open container of alcohol, in violation of a Habersham County ordinance, and possession of less than one ounce of marijuana in violation of the Georgia Controlled Substances Act. OCGA § 16-13-30. In a bench trial, they were acquitted of violating the county ordinance and convicted of violating the Georgia Controlled Substances Act. They appeal from the entry of the judgment of conviction and sentence, raising identical enumerations of error.

The evidence adduced at trial, viewed in a light to support the prosecution, shows that appellants were passengers in a car which was stopped by a police officer in Clarkesville, Georgia, because of an expired license plate. The officer observed approximately 14 beers inside the car and arrested appellants for violating the county open container ordinance. Appellants were advised of their Miranda rights, and the officer then stated that he had reason to believe there was marijuana in the car. Appellants consented to urine tests which were performed by Officer Chesboro at the jail. A pre-trial hearing was held on appellants’ motions in limine to restrict the admission of testimony regarding the results of the urinalysis, but the trial court deferred ruling on the motions until the close of the evidence. Officer Chesboro testified that he received training and was expérienced in administering the “ontrack system,” a test to detect the presence of tetrahydrocannabinol, and that the results of ontrack system tests performed on appellants’ urine samples were positive for the presence of marijuana. Appellants renewed their objection to testimony regarding the drug detection test performed by Officer Chesboro, arguing that the State did not lay the proper foundation for the admission of the test results. Citing OCGA § 24-9-67, the trial court admitted Officer Chesboro’s testimony as an expert opinion on a question of science, skill, or trade. After both sides rested, appellants moved for directed verdicts on both charges. Because the county ordinance prohibited the possession of open containers in unincorporated Habersham County and appellants were in the City of Clarkesville when the containers were discovered, the trial court granted directed verdicts for appellants on the open container charge. The court denied the motions for directed verdict on the remaining offense and convicted each appellant of violating the Georgia Controlled Substances Act. This appeal followed.

In their first enumeration of error, appellants contend the trial court erred in admitting testimony regarding the ontrack system because the State failed to show that the test was reliable. Appellants argue that the ontrack system is not a widely accepted method of detecting alcohol and controlled substances; that there was no evidence introduced as to the test’s reliability; and that Officer Chesboro’s testimony regarding his training and experience with the ontrack system was insufficient foundation for the admission of the test results. We agree.

“In Harper v. State, 249 Ga. 519, 525 (292 SE2d 389) (1982), [the Supreme Court] held that the test for admissibility of novel scientific evidence is whether the procedure or technique ‘has* reached a scientific stage of verifiable certainty, or in the words of Professor Irving Younger, whether the procedure “rests on the laws of nature.” ’ [The court] went on to say that ‘(o)nce a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.’ [Cit.]” Lattarulo v. State, 261 Ga. 124, 126 (3) (401 SE2d 516) (1991). A review of the decisions of this court, our Supreme Court and the courts of other states reveals no decision in which the “ontrack system” has been discussed as a reliable method of drug detection. Furthermore, despite the fact that Officer Chesboro testified as to his training and skill in administering ontrack system tests, the State presented no evidence as to the characteristics, theory, operation, reliability or scientific acceptability of the test to demonstrate that the test rests upon the laws of nature. In our view, because the ontrack system has not been widely recognized and the trial court, in essence, took judicial notice that the ontrack test results were based on accepted scientific theory without receiving expert testimony that the procedure has been established with verifiable certainty, the court erred in admitting the testimony as to appellants’ test results. Compare Caldwell v. State, 260 Ga. 278 (393 SE2d 436) (1990).

Decided March 9, 1993.

Kenneth D. Kondritzer, for appellants.

Ernest H. Woods III, Solicitor, for appellee.

Based on the foregoing, we need not address appellants’ remaining enumerations of error.

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