author: JOHNSON, Presiding Judge.

text:
    A02A1087.
    BAYSINGER v. THE STATE.
    (570 SE2d 593)
   JOHNSON, Presiding Judge.

William Baysinger was driving his car while under the influence of alcohol when he unlawfully failed to yield the right of way to another car carrying a family of four. The two cars collided, and the family in the car hit by Baysinger was injured, including serious injuries to the arms and legs of a four-month-old boy riding in a child’s car seat. Baysinger was charged with driving under the influence of alcohol to the extent it was less safe for him to drive, driving under the influence of alcohol with a blood alcohol level of 0.10 grams or more, failing to yield, possessing an open container of alcohol while driving, and causing serious injury by vehicle as a result of the DUI violations. Baysinger pled guilty to the DUI, failure to yield, and open container charges.

He pled not guilty to the serious injury by vehicle charge, waived his right to a jury trial, and proceeded to a bench trial. Prior to trial, Baysinger stipulated that the collision was caused by his failure to yield the right of way, that he was under the influence of alcohol to the extent it was less safe for him to drive, and that his blood alcohol level was 0.16. His defense at trial was that the serious injuries suffered by the child were caused, not by his driving under the influence of alcohol, but by the fact that the parents had placed the child’s car seat so that it was facing forward rather than backward.

The trial judge rejected Baysinger’s defense and found him guilty of serious injury by vehicle. Baysinger appeals, challenging the sufficiency of the evidence supporting his conviction. The challenge is without merit, so we affirm the conviction.

1. Baysinger argues that the evidence does not show that his driving under the influence of alcohol was the sole proximate cause of the child’s serious injuries. Rather, he contends, the evidence shows that the parents’ placement of the child in a seat facing the wrong way also caused the injuries. Contrary to Baysinger’s argument, even if the parents’ placement of the car seat contributed to the child’s injuries, Baysinger is not necessarily absolved of criminal responsibility.

If the injury did not flow naturally and directly from the defendant’s wrongful act, or could not reasonably have been expected to result from his wrongful act, or would not have resulted but for the interposition of an independent and unforeseen cause, then the defendant’s wrongful act would not be the proximate cause of the injury. But as long as the defendant’s negligence proximately caused the injury of another, the crime has been committed, even if there are other factors which also are proximate causes of the injury. Unlike the civil context, in the criminal context it simply is not relevant that the victim was negligent unless the defendant’s conduct did not substantially contribute to the cause of the injury.

In the instant case, the child’s serious injuries were not the result of some unforeseeable intervening act. Instead, they were substantially caused by Baysinger’s admitted criminal acts of driving under the influence of alcohol and failing to yield. The fact that the child’s car seat may have been facing in the wrong direction did not break the causal connection between Baysinger’s wrongful conduct and the child’s serious injuries; without question, the child would not have been injured were it not for the facts that Baysinger drove while intoxicated and slammed into the victim’s car. Even if other factors contributed to the injuries, the trial judge, sitting as the finder of fact, was authorized to find beyond a reasonable doubt that Baysinger is guilty of serious injury by vehicle.

2. Baysinger claims that his conviction must be reversed because the state’s evidence of causation was only circumstantial. The claim is incorrect because the state, presented direct evidence that the child’s serious injuries were caused by the automobile collision through the testimony of the child’s physician. The physician testified that the boy suffered a spinal cord injury, rendering his arms and legs useless, as a result of the motor vehicle collision.

Moreover, even if the state’s evidence were purely circumstantial, it would still be sufficient to support Baysinger’s conviction. To sustain a conviction based on circumstantial evidence, the evidence need not exclude every possibility of innocence, but must exclude reasonable hypotheses except the guilt of the accused. And whether or not a hypothesis is reasonable is generally a question for the fact-finder, which heard the evidence. This is necessarily so, because we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of an upright and intelligent finder of facts.

Based on all the evidence, together with the stipulated facts that Baysinger was driving under the influence of alcohol to the extent that he was a less safe driver and that he caused the accident, the trial judge was authorized to find beyond a reasonable doubt that Baysinger is guilty of serious injury by vehicle.

Decided August 16, 2002

Reconsideration denied September 5, 2002

Chestney-Hawkins Law Firm, Michael M. Hawkins, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

        Miller v. State, 236 Ga. App. 825, 828-829 (2) (513 SE2d 27) (1999).

        Whitener v. State, 201 Ga. App. 309, 311 (3) (410 SE2d 796) (1991).

       Id.

       Id. at 312.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA § 40-6-394.

        Jones v. State, 253 Ga. App. 376, 377 (1) (559 SE2d 119) (2002).

        Holland v. State, 251 Ga. App. 312, 313 (554 SE2d 303) (2001).

       Id.

       See Gentry v. State, 236 Ga. App. 820, 821-822 (1) (513 SE2d 528) (1999).


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A02A1237.
    GRANT v. THE STATE.
    (570 SE2d 597)
   Johnson, Presiding Judge.

A jury found Harvey Grant guilty of simple battery. He appeals, alleging the trial court improperly limited his closing argument, the state improperly placed the burden of persuasion on him, and the trial court erred in denying his request for mistrial after the state questioned him about prior arrests. Because each of these enumerations of error lacks merit, we affirm Grant’s conviction.

Viewed in a light most favorable to support the verdict, the evidence shows that Grant and the victim lived together. On July 17, 2001, the victim’s father picked her up between 5:00 and 5:30 p.m. to attend a funeral. They returned between 9:15 and 9:30 p.m. Subsequently, Grant and the victim argued about a truck which, had allegedly turned around in the driveway earlier that day and about Grant’s feelings about the victim’s infidelity. Grant then left the house.

Shortly after 1:00 a.m., Grant returned to the house. He told the victim he wanted to talk, but the victim smelled alcohol on his breath and told Grant, ‘You’ve been drinking and you’re high, we’ll talk later.” She knew something was about to happen because of her past experiences with Grant. Grant denied he had been drinking while he was out with his friends and testified that the victim was angry and accused him of being unfaithful.

At this point, Grant’s version of the incident differs from the victim’s version. According to the victim, Grant grabbed her hand and yelled at her for trying to call the police. He then punched her under her left eye, and a ring on his finger cut her face, causing severe bleeding and a permanent scar. The victim retaliated by throwing keys at Grant. Grant grabbed the victim, turned her around, and slapped her on the face. Subsequently, the victim got out of the house and called police on her cell phone.

According to Grant, the victim was the aggressor. She threw her keys at him, hitting him in the face and cutting him. At that point, Grant pushed the victim on the bed, and the victim struck him with the keys. Then the victim threw an ashtray at Grant, which missed and broke against a wall. The victim grabbed a large piece of the glass and cut Grant on the arm with the glass. After a struggle, the victim ran outside and called police. Once police arrived, both parties were questioned and arrested.

1. Grant contends the trial court improperly limited his closing argument by refusing to allow him to comment on the state’s failure to call the arresting police officer. We find no abuse of discretion.

We agree that Grant had the right to comment on the state’s failure to call witnesses where the jury was presented with evidence that the missing witnesses had “knowledge of facts relevant and material to the case.” Here, however, there was no evidence that the officer who responded to the scene had any knowledge relevant or material to Grant’s case. The record shows that the officer responded to the scene, spoke with Grant and the victim at the scene, and arrested both parties. There was no evidence or testimony that the officer did any independent investigation other than listening to both parties at the scene. Both the victim and Grant testified at trial regarding what occurred at the scene and what they told the officer. Because there was no showing that this missing witness had information relevant to the facts of this case, the trial court did not abuse its discretion in prohibiting this line of argument.

2. Grant contends that during closing argument, the state placed the burden of proof on him:

State: . . . you’ve got two versions of the story. When you go back in that room, you can only accept one because that you have to decide for yourself based on the credibility, as [Grant’s attorney] said. You have to determine if that man sitting right there is more credible than [the victim]. And that you have to believe that everything he’s saying was the truth to you that day in order for you to find him not guilty. Defense Attorney: Your Honor, I — I object. That’s a misstatement of the law. They do not have to believe the Defendant’s story in order to acquit him.
Court: Well, now, the jury will make the decision about what the facts in the case and the evidence presented has been sufficient to convince them beyond reasonable doubt of the guilt of the Defendant. Go ahead.

While this comment during closing argument did address Grant’s credibility, it did not shift the burden of proof to Grant. In fact, Grant’s attorney admitted during closing argument that if the jury believed the victim, then they had to believe Grant was lying.

During closing argument; counsel may make inferences and ask the jury to look at such inferences even if the inferences are illogical, unreasonable, or absurd. In the present case, the jury was presented with two different versions of the incident. Both the state and Grant argued that the other party lacked credibility. The trial court instructed the jury about the credibility of witnesses on two separate occasions, once before the commencement of testimony and once after the conclusion of the evidence and closing arguments. And, the trial court properly instructed the jury on the burden of proof after closing arguments. We find no reversible error.

3. Grant argues that the trial court erred in overruling his objection and request for mistrial when the state questioned him about prior arrests. During cross-examination, Grant was asked the following:

State:. . . you were going to jail?
Grant: Yeah, automatically, any time it’s a domestic like that, you’re going to jail.
State: Okay.
Grant: So might as well go put my pants on and sit on the car and wait. I don’t want no problem.
State: I got you. Okay. And you know that because of what? Grant: I know that because of experience, family — I mean, other friends getting into it, family. I know it from — I know it from those.
State: Would it be from the prior times you’ve been arrested for that?

Grant claims this last question asked him about prior arrests and the fact that he knew police protocol, not merely prior difficulty between Grant and the victim. We disagree. The line of questioning clearly referred to domestic abuse arrests, and the jury was already aware that Grant had prior altercations with the victim and had been arrested for battery against the victim on one occasion.

Decided August 16, 2002

Reconsideration denied September 5, 2002

Rodney A. Williams, for appellant.

Gwendolyn R. Keyes, Solicitor-General, Rupal D. Vaishnav, Assistant Solicitor-General, for appellee.

On appeal, we will not disturb a trial court’s ruling on a motion for mistrial absent an abuse of discretion. Given the abundance of prior difficulty evidence before the jury, it is highly unlikely that the jury was confused by the state’s question about Grant’s prior “arrests.” There simply was no other evidence of any bad character before the jury. The trial court did not abuse its discretion in overruling Grant’s objection and denying his motion for mistrial.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

        Morgan v. State, 267 Ga. 203, 206-207 (3) (476 SE2d 747) (1996).

       See Dennis v. State, 226 Ga. App. 390, 391 (2) (486 SE2d 656) (1997).

        Morgan, supra at 203-204 (1).

       See Arnold v. State, 249 Ga. App. 156, 161 (3) (545 SE2d 312) (2001).


text:
    A02A1544.
    HORACE MANN INSURANCE CORPORATION v. MERCER.
    (570 SE2d 589)
   Johnson, Presiding Judge.

The facts in this case are not in dispute. Harry Mercer was injured in an automobile accident. He is insured by four Horace Mann Insurance Corporation automobile policies, each covering one of four automobiles. Each policy provides underinsured/uninsured motorist (UM) coverage in the amount of $15,000 per person. At issue in this case is whether Mercer is entitled to stack the UM coverage so as to recover the amount by which he is underinsured, which is $45,000. The trial court granted Mercer’s motion for summary judgment, finding that Mercer was entitled under Georgia law to stack the UM coverage. Horace Mann appeals. For reasons which follow, we affirm the trial court’s ruling.

In the present case, the four automobile policies each contain a clause under the “Uninsured Motor Vehicle” section which states as follows: “5. If two or more policies issued by us to you apply to the same accident, the total limit of liability under all such policies shall not exceed that of the policy with the highest limit of liability.” Horace Mann argues that this clause creates a contract between Horace Mann and its insured, prohibiting the stacking of multiple UM policies issued by Horace Mann to a single insured. We disagree. While an insurance company may fix the terms of its policies as it wishes and may bar the stacking of coverage, policy terms may not be contrary to the law. Here, the policy provision barring the stacking of uninsured motorist benefits is contrary to Georgia’s Uninsured Motorist Statute. It is important to note that the present case involves multiple insurance policies covering different vehicles. This opinion does not address a situation involving a single insurance policy covering different vehicles, in which case stacking may be prohibited.

Georgia’s Uninsured Motorist Statute requires insurers to offer coverage which undertakes “to pay the insured all sums which said insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within limits [not less than specified amounts].” Georgia courts have repeatedly held that insurance provisions which reduce an insurer’s liability by amounts payable from other insurance are contrary to the statute if they thwart the insured’s ability to recover “all sums” the insured is legally entitled to recover. We find the limiting clause in Horace Mann’s policies is contrary to the UM statute because it limits Mercer’s ability to recover all sums he is legally entitled to recover.

In State Farm &c. Ins. Co. v. Murphy, the plaintiff attempted to recover under the terms of two separate uninsured motorist policies. In that case, State Farm filed a motion for summary judgment, asserting that there was no coverage afforded because its policy contained an “other insurance” clause with language similar to the one in the present case. In Murphy, the insurance policy stated as follows: “the insurance hereunder shall apply only as excess insurance over any other similar insurance available . . . , and this insurance shall then apply in the amount by which the applicable limit of liability of this coverage exceeds the sum of the applicable limits of liability of all such other insurance.” The Supreme Court of Georgia held that this provision was void because the plain mandate of the Georgia Uninsured Motorist Statute is to provide payment for “all sums” which the insured is legally entitled to recover as damages from the uninsured motorist.

Decided August 12, 2002

Reconsideration denied September 5, 2002

Mabry & McClelland, Edwin L. Hamilton, John G. Godsey, Robert M. Darroch, for appellant.

Downey & Cleveland, Russell B. Davis, Shaffer & Combs, Brian G. Combs, Adams, Jordan & Treadwell, Marc T. Treadwell, for appel-lee.

Reynolds & McArthur, Charles M. Cork III, James D. Hollings-worth, amici curiae.

Likewise, in the present case, Horace Mann’s policy clause seeks to limit the coverage to “not exceed that of the policy with the highest limit of liability.” This provision is contrary to Georgia’s Uninsured Motorist Statute, which “is designed to protect the insured as to his actual loss, within the limits of the policy or policies of which he is the beneficiary.” Moreover, such a construction of the statute does not cause a danger of pyramiding multiple policies so as to recover beyond actual damages because the insured is not legally entitled to recover amounts beyond his actual damages no matter how many of his policies are involved. The trial court did not err in granting Mercer’s motion for summary judgment and denying Horace Mann’s motion for summary judgment.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur. .

       See McCombs v. State Farm &c. Ins. Co., 200 Ga. App. 28 (406 SE2d 549) (1991).

       OCGA § 33-7-11.

       OCGA § 33-7-11 (a) (1).

       See State Farm &c. Ins. Co. v. Murphy, 226 Ga. 710, 713-715 (177 SE2d 257) (1970); Hudson v. Whited, 250 Ga. App. 451, 452 (552 SE2d 447) (2001); Johnson v. State Farm &c. Ins. Co., 216 Ga. App. 541 (455 SE2d 91) (1995).

       Supra.

       (Punctuation and emphasis omitted.) Id. at 713.

       Id. at 713-714.

       Id. at 714.

       Id.


author: Per curiam.

text:
    A02A0975, A02A0976.
    DAKER v. THE STATE (two cases).
    (570 SE2d 704)
   Per curiam.

These are the seventh and eighth appeals filed by Waseem Daker following his conviction on two counts of aggravated stalking. In Case No. A02A0975 Daker challenges the trial court’s denial of his motion for an out-of-time appeal from an order authorizing the release of certain psychiatric records, and in Case No. A02A0976 he challenges the trial court’s order denying his motion to disqualify the Cobb County District Attorney’s Office. We discern no error and affirm.

The underlying facts (set forth in Daker’s direct appeal from his convictions; see Daker v. State, 243 Ga. App. 848-849 (533 SE2d 393) (2000)), are largely irrelevant to his current appeals. The relevant undisputed facts indicate that, following Daker’s convictions, the trial court ordered a presentence investigation to be conducted. A probation officer with the Department of Corrections contacted Daker, requesting that Daker sign a waiver that would allow the officer to obtain Daker’s psychiatric records. After consulting with his attorney, Daker signed various waivers with the understanding that the records would only be used for the presentence investigation.

The Cobb County Assistant District Attorney moved for a copy of the psychiatric records, and the trial court granted this motion, unsealing the records to make copies for the defense and the prosecution, and allowing the documents to be released to the Department of Corrections and to the State Board of Pardons and Paroles. In his original appeal, Daker raised the issue that the trial court erroneously unsealed documents that were used in the presentence investigation. See Daker, supra at 855 (20). This court did not consider the issue, as Daker failed to identify where the waivers could be found in the record. Id. Daker nevertheless then filed a motion for an out-of-time appeal to challenge the trial court’s 1997 order unsealing the documents. The trial court denied this motion.

Daker then filed a civil lawsuit against the assistant district attorney, the Department of Corrections, and the State Board of Pardons and Paroles, seeking damages for disclosure and an injunction to prevent further disclosure. Based on the filing of this civil lawsuit, Daker filed a motion to disqualify the Cobb County District Attorney’s Office from this case. The trial court denied this motion.

Case No. A02A0975

Daker argues that the trial court erred by denying his motion for an out-of-time appeal to challenge the court’s 1997 order that authorized the release of his psychiatric records. However, Daker ignores the fact that he already argued in his first appeal that the trial court erroneously unsealed the documents that were used in the presentence investigation. See Daker, supra. Since Daker already waived this issue by failing to identify the location of the relevant signed releases in the record of his first appeal, we cannot reconsider this issue now. See Willingham v. State, 241 Ga. App. 509 (1) (527 SE2d 232) (1999) (error waived in prior appeal could not be addressed again in subsequent appeal); see also Parker v. State, 229 Ga. App. 217, 218 (2) (493 SE2d 558) (1997) (when issue decided adversely to appellant in prior appeal, relitigation is precluded by res judicata). The trial court did not err by failing to grant an out-of-time appeal to Daker based on an issue that had already been decided adversely to him in a prior appeal.

Decided September 5, 2002.

Waseem A. Daker, pro se.

Patrick H. Head, District Attorney, Amy H. McChesney, W. Thomas Weathers III, Assistant District Attorneys, for appellee.

Case No. A02A0976

We find no merit to Daker’s contention that his filing of a lawsuit against the Cobb County District Attorney’s Office somehow creates a conflict of interest that disqualifies that office from this case. The Supreme Court of Georgia has held that no error is committed “by denying the defendant’s motion to disqualify the district attorney for conflict of interest where the only conflict of interest alleged [is] that the district attorney might be civilly liable to the defendant. . . .” (Citation omitted.) Moon v. State, 258 Ga. 748, 752 (2) (e) (375 SE2d 442) (1988), cert. denied, 499 U. S. 982 (111 SC 1638, 113 LE2d 733) (1991). The trial court did not err in denying Daker’s motion.

Judgments affirmed.

All Judges concur.

       For prior appeals, see Daker v. State, 243 Ga. App. 848 (533 SE2d 393) (2000) (three cases); Daker v. State, 248 Ga. App. 657 (548 SE2d 354) (2001); Daker v. Weathers, Case No. A00D0325 (Ga. Ct. App., decided May 2000) (discretionary appeal denied); Daker v. State, Case No. A02A0974 (Ga. Ct. App., appeal withdrawn February 2002).


author: Mikell, Judge.

text:
    A02A0872.
    CARLISLE v. THE STATE.
    (570 SE2d 616)
   Mikell, Judge.

On February 26, 1997, an eleven-count indictment was entered against Janice Marie Carlisle, charging her with two counts of stalking, one count of first degree forgery, one count of attempt to commit burglary, one count of possession of tools for the commission of a crime, five counts of aggravated stalking, and one count of conspiracy to commit murder. On June 5, 1997, Carlisle pleaded guilty to two counts of stalking (Counts 1 and 2 of the indictment) and two counts of aggravated stalking (Counts 6 and 10). In return, the state tendered for nolle prosequi the remaining seven counts of the indictment, and the trial court granted the request. Carlisle was sentenced to ten years supervised probation with 124 days to be served in custody.

On June 1, 1999, Carlisle filed a petition for a writ of habeas corpus, challenging the voluntariness of her guilty plea. On August 16, 2000, the habeas court found that Carlisle’s guilty plea was not freely and voluntarily given and ordered that the plea be “voided, invalidated, and overturned.” The court expressly stated that “Petitioner’s plea of not guilty to all charges in said Indictment, as originally entered at her arraignment thereon, is reinstated in it[s] entirety.” The Supreme Court affirmed the habeas court’s decision. Wetherington v. Carlisle, 273 Ga. 854 (547 SE2d 559) (2001).

On remand, Carlisle’s trial was specially set to begin on November 13, 2001. The trial court ordered that all pretrial motions would be heard on October 29, 2001. Carlisle moved that she be tried only on Counts 1, 2, 6, and 10 of the indictment, and not on the counts that had been nolle prossed in return for the negotiated guilty plea that she subsequently withdrew. The trial court denied the motion on November 2, 2001. Carlisle filed a notice of appeal on November 6, challenging the denial of her “plea of former jeopardy.” The next day, she filed a written plea of former jeopardy, in which she argued that the trial court erred in ordering her to stand trial on seven counts which were not legally viable. The court entered another order on November 13, 2001, expressly denying Carlisle’s plea of former jeopardy. We granted Carlisle’s subsequent emergency motion and ordered that her appeal of the November 2, 2001 order be allowed to proceed.

In the sole error enumerated on appeal, Carlisle argues that the trial court erred in ordering that she be tried on all 11 counts of the original indictment. We disagree and affirm the order of the trial court.

In Buice v. State, 272 Ga. 323 (528 SE2d 788) (2000), the Supreme Court held that a trial court could vacate an order of nolle prosequi within the same term of court in which it was entered. Id. at 326. Based on Buice, Carlisle argues that because the term of court in which the seven counts were nolle prossed has long expired, the trial court lacks jurisdiction to reinstate them. However, there are significant distinctions between the case sub judice and Buice. In Buice, the defendant was indicted in 1994 and charged with two . counts of child molestation. In 1996, the defendant was indicted on similar charges under a second bill of indictment. Both indictments appeared on the February 1997 trial calendar. Before trial, the state nolle prossed the 1994 indictment. Four days later, the state requested that the order of nolle prosequi be vacated, because it had mistakenly nolle prossed the wrong indictment. The trial court granted the request and entered an order rescinding the nolle prose-qui order. The defendant was convicted on the 1994 indictment, and the 1996 indictment was nolle prossed. Id. at 323. The trial court’s decision was affirmed. Id. at 326. Significantly, there was no mention of a plea agreement in connection with the nolle prossed indictment in Buice.

■ Here, the seven disputed counts were nolle prossed in return for Carlisle’s guilty plea. “It is well settled that a plea bargain agreement is a contract under Georgia law which binds both the prosecutor and defendant.” City of Baldwin v. Barrett, 265 Ga. 489, 490 (458 SE2d 619) (1995). The state nolle prossed the seven counts pursuant to the plea agreement. Now, Carlisle wants to avoid performing her part of the bargain while enjoying the portion of the agreement that was beneficial to her.

In Martin v. State, 207 Ga. App. 861, 863 (429 SE2d 332) (1993), we rejected a defendant’s attempt to enjoy a similar windfall. In that case, the defendant reached an agreement with the state in which he would enter a guilty plea to both the predicate offense and the offense for which a life sentence would be imposed, in exchange for the state’s dismissal of the remaining charges against him. Id. at 861. After entering his guilty plea, the defendant challenged the imposition of the agreed-upon life sentence because the state did not renotify him that his guilty plea to the first offense would serve as the predicate for a life sentence on the second offense. We rejected his argument and held as follows:

Having accepted the benefit of the bargain with the State and secured the dismissal of all other charges pending against him on the three indictments, it is appellant who now seeks to avoid living up to his part of the bargain. This he cannot do. Public policy and the great ends of justice require that the arrangement between the public prosecutor and the defendant be carried out.

(Punctuation omitted.) Id. at 863, citing State v. Hanson, 249 Ga. 739, 745 (3) (295 SE2d 297) (1982).

As we noted above, when it granted Carlisle’s request to withdraw her guilty plea, the habeas court expressly stated that “Petitioner’s plea of not guilty to all charges in said Indictment, as originally entered at her arraignment thereon, is reinstated in it [s] entirety.” The Supreme Court affirmed the habeas court’s decision. Wetherington v. Carlisle, supra. Therefore, both Carlisle and the state should be in the same position they were prior to the entry of the guilty plea, as Carlisle’s plea of not -guilty to the entire original indictment has been reinstated.

The Appellate Court of Illinois reached a similar conclusion in People v. Horne, 21 Ill. App.3d 10 (314 NE2d 633) (1974). That case held that when a defendant successfully appealed the validity of a guilty plea, the other charges that had been nolle prossed pursuant to the plea agreement could be reinstated. Id. at 12. The Illinois court held that jeopardy had not attached to the nolle prossed counts, because no jury had been impaneled, and the trial court had not heard evidence. Id. at 13.

Furthermore, our review of other jurisdictions reveals that Pennsylvania allows the revival of nolle prossed indictments outside of the applicable term of court. See Commonwealth v. Whiting, 509 Pa. 20, 22-23 (500 A2d 806) (1985) (nolle prosequi may be retracted at any time); Commonwealth v. McLaughlin, 293 Pa. 218, 223 (142 A 213) (1928) (nolle prosequi may be cancelled at any time to permit a revival of original indictment). In Buice, supra at 325, our Supreme Court cited a Pennsylvania decision, Commonwealth v. Ahearn, 543 Pa. 174 (670 A2d 133) (1996), which provided that “[a] nolle prosequi is a voluntary withdrawal by a prosecuting attorney of proceedings on a particular criminal bill or information, which at anytime in the future can be lifted upon appropriate motion.” 543 Pa. at 180.

Carlisle’s reliance on State v. Sheahan, 217 Ga. App. 26 (456 SE2d 615) (1995), and State v. Davis, 196 Ga. App. 785 (397 SE2d 58) (1990), is misplaced. Sheahan is physical precedent only, and it is distinguishable from the case at bar. Likewise, there are significant distinctions between this case and Davis. In Davis, both the state and the defense announced ready at the calendar call of the defendant’s case. Three days later, before a jury was impaneled, the state moved to nolle prosse the case. Three weeks later, the state notified the defendant that it would put the case back on the next trial calendar. Upon the defendant’s motion to dismiss, the trial court formally entered a nolle prosequi upon the indictment, nunc pro tunc, and dismissed it. Id. We affirmed, reasoning that it would render every nolle prosequi a meaningless gesture if the state was permitted to simply place the case back on a trial calendar after nolle prossing it. Id. at 786. This concern would not apply to the case at bar. Unlike the defendant in Davis, Carlisle agreed to plead guilty in exchange for the nolle prosequi of the remaining seven counts. The state did not simply decide to nolle prosse the charges and then to try Carlisle after all; rather, Carlisle obtained habeas relief and withdrew her bargained-for guilty plea.

To the extent that the trial court’s order in the case sub judice amounted to a denial of Carlisle’s plea of former jeopardy, we find no error. Pretermitting whether Carlisle’s plea of former jeopardy was timely filed, the trial court’s decision was correct on the merits. Because the seven disputed counts of the indictment were nolle prossed, and a jury was not impaneled to hear them, Carlisle was never in jeopardy for those charges. OCGA § 16-1-8 (a). A defendant is not placed in jeopardy until the jury has been impaneled and sworn. Turner v. State, 152 Ga. App. 354, 355 (1) (262 SE2d 618) (1979). Accord Alexander v. State, 192 Ga. App. 211-212 (384 SE2d 436) (1989).

Decided August 23, 2002

Reconsideration denied September 6, 2002

Brian Steel, for appellant.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J, and Phipps, J., concur.

       In Sheahan, a traffic court judge nolle prossed charges of vehicular homicide and improper lane change but also fined the defendant. Id. at 26. When the state attempted to bring the charges in state court, the trial judge ordered that further prosecution was barred because the imposition of a fine had placed the defendant in jeopardy. Id. at 27. We reversed, holding that the imposition of the fine by the traffic judge was void, as the charges had already been nolle prossed. Id. at 29.


author: Blackburn, Chief Judge.

text:
    A02A0934.
    MYERS v. HARRIS et al.
    (570 SE2d 600)
   Blackburn, Chief Judge.

In this static defect, fall case, Barbara Myers, plaintiff below, appeals the trial court’s order granting summary judgment to Walker Harris and Son-Rise Prison Ministries, Inc. (Son-Rise), defendants below, contending that genuine issues of material fact remain. For the reasons set forth below, we affirm in part and reverse in part.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Becton v. Tire King of North Columbus.

So viewed, the record shows that, on September 13, 1997, Myers and a companion went to a thrift store operated by Son-Rise and located in a building owned by Harris. While shopping, Myers followed her companion and an employee of Son-Rise up a concrete ramp without handrails to an elevated furniture showroom. The store lighting was good, and nothing obstructed Myers’s view of the ramp. After successfully ascending the ramp, Myers walked to her right and began walking between pieces of the tightly packed furniture to examine a table and chairs displayed on the concrete ledge adjacent to the ramp. She stepped back and suddenly fell off the ledge, onto and down the ramp she had just traversed, injuring her foot, ankle, and elbow. No ropes or barricades were in place near the ledge, and no warnings regarding the drop-off were posted.

Myers brought suit against both Son-Rise and Harris for her injuries claiming that both parties breached their respective duties, as store proprietor and building owner, to keep the premises safe for invitees. The trial court granted summary judgment for defendants, and Myers now appeals this ruling.

1. Myers contends that Son-Rise, as proprietor of the thrift store, failed to properly warn her of the dangers of the ramp and adjoining ledge, thereby precipitating her fall. In general, “ ‘[a]n owner or occupier of land has a duty of exercising ordinary care to keep the premises and approaches safe for invitees.’ ” Bramblett v. Earl Smith Floors. The ramp and ledge were static conditions, and “ ‘[i]n cases involving static conditions, if the invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.’ ” Id.

In her affidavit, Myers contradicts the claims of Son-Rise and Harris that she had traversed the dangerous condition where she fell prior to the incident. Appellees rely on static defect cases in which we have held that, “‘when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom.’ ” Christensen v. Overseas Partners Capital. Appellees’ reliance is misplaced in this case.

In her complaint, Myers stated that she fell onto the ramp; and in her deposition, at one point, she states that she did not know why she fell. Later, in her affidavit, Myers testified that after ascending the ramp and walking between the displayed furniture, she did not see where the floor ended, and she stepped back over the ledge. Although her complaint and deposition could be considered contradictory or speculative as to the cause of her fall, we agree with the trial court’s finding that Myers’s affidavit presented a reasonable explanation in accordance with Prophecy Corp. v. Charles Rossignol, Inc. Hence, for summary adjudication purposes, she had not traversed the elevated showroom floor and ledge prior to her fall from there, and her claim does not fail because of her equal knowledge, resulting from previously traversing the static condition.

Next, Myers contends that there is a genuine issue of fact as to whether the dangerous condition was in plain view and whether she exercised reasonable care. “ ‘[P]laintiff’s lack of ordinary care for personal safety [is] generally not susceptible of summary adjudication, and . . . summary judgment is granted only when the evidence is plain, palpable, and undisputed.’ ” Ingles Markets v. Martin.

Generally, Myers’s knowledge of the specific hazard would be determinative of whether she has exercised ordinary care. Jackson v. Waffle House. Even though as she ascended the ramp, Myers could have seen the ledge of the elevated showroom, Myers argues that while she was viewing the furniture and navigating her way through and around the furniture as arranged by Son-Rise, it was difficult to determine where the edge of the ledge ended. Myers contends Son-Rise negligently failed to make the area safe, provide barriers, or post a warning of the condition. Robinson v. Kroger Co., Redding v. Sinclair Refining Co.

Myers stated that the furniture was packed very tightly and the only way to observe it was to walk in between the different pieces. For that reason, she did not see where the floor ended, as it was not marked. Son-Rise, having placed the furniture on the ledge, should have anticipated that its customers would want to come to the edge of the floor to view the furniture.

Moreover, Myers stated that the furniture “camouflaged the fact that the floor dropped off onto the ramp below.” In Robinson v. Kroger Co., supra at 742 (1), the Supreme Court rejected the contention that an invitee must continuously survey the floor for defects. As to appel-lee Son-Rise, there is a question of fact as to whether the configuration of the merchandise display by Son-Rise was such that the injury sustained was proximately caused by its negligence and whether Myers exercised reasonable care for her own safety. Therefore, the trial court erred in granting summary judgment to Son-Rise.

2. Myers contends that there is an issue of fact as to whether Harris had constructive knowledge of the hazardous condition of the ledge. In accordance with OCGA § 44-7-14, Harris is only responsible for damages resulting from failing to keep the premises in repair or from defective construction. A landlord who has assigned the right of control of his property has no duty to inspect unless a request for repair has been made. Stephens v. Ernie’s Steakhouse &c.

Harris maintained no daily control over the premises, was not an officer, employee, or agent in the business, and had no knowledge of Son-Rise’s operations. Son-Rise had never made any reports of a person’s sustaining an injury on the property or unsafe conditions there. In addition, no repairs had been requested to the ramp or ledge area. We note that there has been no showing of a failure of the structure requiring repair. The only question of negligence relates to the placement of display furniture near the ledge. It is undisputed that Son-Rise was solely responsible for this placement and any failure to warn or erect barriers. Therefore, the trial court did not err in granting summary judgment to Harris.

Decided August 20, 2002

Reconsideration denied September 6, 2002.

David A. Anton, for appellant.

Conoscienti, Storm & Kendall, Michael C. Kendall, Brenda H. Trammell, for appellees.

Judgment affirmed in part and reversed in part.

Johnson, P. J., and Miller, J., concur.

        Becton v. Tire King of North Columbus, 246 Ga. App. 57, 58 (539 SE2d 551) (2000).

        Bramblett v. Earl Smith Floors, 227 Ga. App. 296, 297 (488 SE2d 766) (1997).

        Christensen v. Overseas Partners Capital, 249 Ga. App. 827, 829 (2) (549 SE2d 784) (2001).

        Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).

        Ingles Markets v. Martin, 236 Ga. App. 810 (513 SE2d 536) (1999).

        Jackson v. Waffle House, 245 Ga. App. 371, 374 (2) (537 SE2d 188) (2000).

        Robinson v. Kroger Co., 268 Ga. 735, 744 (493 SE2d 403) (1997).

        Redding v. Sinclair Refining Co., 105 Ga. App. 375, 378 (2) (124 SE2d 688) (1962).

        Stephens v. Ernie’s Steakhouse &c., 215 Ga. App. 166, 169 (2) (450 SE2d 275) (1994).


author: Andrews, Presiding Judge.

text:
    A02A1134.
    BIANCO et al. v. THE STATE.
    (570 SE2d 605)
   Andrews, Presiding Judge.

Lynne Bianco and William Sickles appeal from the judgment entered after they were found guilty of one count of possession of methamphetamine. They claim the trial court erred in denying their motion to suppress evidence. For the following reasons, we affirm the judgment of the trial court.

When reviewing a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment of the trial court, and the court’s findings on disputed facts and witness credibility will be adopted unless they are clearly erroneous. Redd v. State, 229 Ga. App. 364, 365 (494 SE2d 31) (1997). “[W]here the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

At the hearing on the motion to suppress, the arresting officer testified that when he was patrolling in a local park at around 8:00 in the evening, he saw a car “pulled sideways across several parking spaces.” The officer stopped and walked up to the car, noticing the odor of alcohol as he approached the car. Sickles was sitting in the driver’s seat and Bianco was in the passenger seat. As the officer approached, he saw Bianco “reaching around by her feet.” The officer asked Sickles for identification and asked him about the odor of aleo-hoi because alcoholic beverages were not allowed in the park. Sickles told the officer that he was not drinking, but Bianco was. The officer asked Sickles to step out of the car. Sickles argued with him at first but did eventually step out of the car.

At that point, the officer called for a K-9 unit and backup which took approximately 15 minutes. The officer asked Bianco, who owned the car, if he could search it. He told her that there was a K-9 unit en route, and she gave him consent to search.

After Bianco got out of the car, the officer saw that she was carrying a large pocketknife. He asked her to empty her pockets, which she did, handing the knife to the officer.

When the backup officer arrived, he talked to Sickles, who became more defensive and nervous. As the officer attempted to do a pat-down search, Sickles turned away, slapping at the officer’s hand. The officer found what was later identified as methamphetamine in Sickles’s pocket and arrested him. When officers searched the car, they found marijuana in the center console and methamphetamine in Bianco’s purse.

Sickles testified and admitted that he was “fidgety” and was “moving around” and the officer had to instruct him to keep his arms by his side. Sickles said he was later told to keep his hands on the trunk of the car but did not do so, testifying that “every time I would move my hands from the trunk, he’d say, T told you to put your hands on the trunk.’ ” Sickles admitted that he told the officer that Bianco had been drinking.

The trial court denied the motion to suppress and found both Bianco and Sickles guilty of possession of methamphetamine. This appeal followed.

As the trial court correctly held, the officer was entitled to walk up to the car and speak to the occupants. State v. Bryant, 203 Ga. App. 69, 71 (416 SE2d 368) (1992). The odor of alcohol coming from the car and the county ordinance prohibiting any alcohol in the park justified a brief, investigative stop under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

Appellants argue on appeal that the officers were not justified in doing a pat-down search of Sickles after he got out of the car. We disagree.

A reasonable search for weapons for the protection of the police officer! ) is permitted where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Terry v. Ohio, [supra].

Sikes v. State, 247 Ga. App. 855, 857 (1) (545 SE2d 73) (2001).

Here, there was sufficient evidence to support the trial court’s finding that a reasonably prudent man could fear for his safety in this situation. The evidence was that officers were patrolling the park because of “ongoing problems in some of the county parks with drug gang and theft activities.” Bianco’s furtive movement as the officer approached, her possession of a knife, Sickles’s fidgety movements, and his refusal to keep his hands in view on the trunk of the car were sufficient to justify a protective search for weapons. See Sikes v. State, supra (Sikes’s aggressive behavior and officer’s suspicion that he might be under the influence of drugs sufficient to justify pat-down search); Singleton v. State, 235 Ga. App. 88, 90 (508 SE2d 461) (1998) (“officers were justified in asking Singleton to step out of the car and in conducting a pat-down search for weapons based on Singleton’s demeanor and the way he positioned his hand by his side in the dark”); Thompson v. State, 230 Ga. App. 131 (495 SE2d 607) (1998) (officer attempting to investigate drug transaction of suspect who was acting skittishly was authorized to make a protective search); Buffington v. State, 229 Ga. App. 450 (494 SE2d 272) (1997) (pat-down search for safety was authorized after traffic stop of defendant who had just left area of known drug activity and was acting “ ‘nervous and just fidgety’ ”).

Finally, the methamphetamine discovered during the pat-down was admissible under the plain feel doctrine.

Under this doctrine, if, during a lawful pat-down search, an officer feels an object whose contours or mass makes it immediately identifiable as contraband, that officer can seize the item. Thus, for evidence to be admissible under the plain feel doctrine, the searching officer must express a degree of certainty in identifying the item. This is so because a pat-down search “is conducted solely for the purpose of insuring the safety of the officer and of others nearby, not to procure evidence for use at a subsequent trial.”

(Footnote and emphasis omitted.) Patman v. State, 244 Ga. App. 833, 834-835 (537 SE2d 118) (2000). See Minnesota v. Dickerson, 508 U. S. 366, 375-376 (113 SC 2130, 124 LE2d 334) (1993). Here, the officer testified that he had 16 years experience in dealing with controlled substances and the package in Sickles’s pocket felt like a “corner baggy” which was commonly used for street sales of controlled substances. Therefore, under the “plain feel doctrine,” the officer was entitled to seize the item, and the evidence was properly admitted.

Decided August 21, 2002

Reconsideration dented September 6, 2002.

Herbert Shafer, for appellants.

Philip C. Smith, District Attorney, Rand J. Csehy, Assistant District Attorney, for appellee.

Accordingly, for the reasons given above, we conclude the trial court’s denial of the motion to suppress was not clearly erroneous.

Judgment affirmed.

Phipps and Mikell, JJ, concur.


author: Phipps, Judge.

text:
    A02A0865.
    TACKETT v. THE STATE.
    (570 SE2d 720)
   Phipps, Judge.

Roger Tackett appeals his convictions of six counts of aggravated child molestation, five counts of child molestation, and three counts of cruelty to children in the first degree. Two of the three victims were brother and sister, aged twelve and nine, respectively, at the time of trial, and the third was a male neighbor, who was fifteen at the time of trial. The offenses were alleged to have occurred between five and seven years earlier. Tackett contends that his trial counsel was ineffective in failing to object to certain videotaped evidence and in not interviewing the State’s witnesses before trial. He also claims error in the admission of the videotaped evidence and of evidence of a prior conviction. He contends, finally, that venue was not proved as to the three counts involving the neighbor. We find that venue was not proved as to one of those counts, and we reverse only that conviction. All other convictions are affirmed.

1. Tackett claims error in the admission of the portion of the brother’s videotaped interview involving his observations of molestations of his sister and the neighbor. During mid-trial proceedings out of the presence of the jury, Tackett objected to admission of the video as a whole and to portions of it, but he did not object when the video was offered into evidence and shown to the jury. As we recently held, “[although counsel did voice an objection to the anticipated testimony ... , he did not object at the time the testimony was given. . . . [I]f the evidence is not objected to at the time it is admitted, its admission cannot later be raised as error on appeal.”

2. Tackett argues that his trial counsel’s failure to object to this evidence amounted to ineffective assistance of counsel. Tackett raised this point in a supplemental brief filed after the hearing on his motion for a new trial but before the court denied it. Although Tackett and his trial counsel testified at the new trial hearing with respect to the question of ineffectiveness, their testimony did not bear on this failure to object, nor did any of the other evidence presented. “Absent any testimony from the attorney explaining his decision not to [object to evidence], we presume the decision was tactical. And because [the defendant] has presented no other evidence to the contrary, he has failed to carry his burden of proving ineffective assistance of counsel.” Accordingly, we must presume that the failure of Tackett’s counsel to object was a tactical decision, and this claim of ineffective assistance of counsel must fail.

3. Tackett claims his counsel was ineffective for failing to interview the State’s witnesses prior to trial. Tackett’s trial counsel testified at the hearing on the motion for a new trial that he felt that his pre-trial review of the statements of those witnesses was sufficient for an adequate cross-examination. He also testified that he reviewed the videotaped interviews of the three victims before trial and that he spent between 30 and 35 hours preparing for trial.

In Bogan v. State, as here, a claim of ineffective assistance of counsel was based on failure to interview prosecution witnesses. We noted, however, that trial counsel attested “that he was adequately prepared for trial after preparing for a month and that he was not unfamiliar with the testimony of the State’s witnesses, having two times ‘read the State’s file containing their information, statements,’ ” and we held that “[t]his does not establish deficient performance as counsel for inadequate trial preparation.” We likewise hold on the facts of this case that Tackett has not established that his trial counsel’s failure to conduct pre-trial interviews of the State’s witnesses constituted ineffective assistance of counsel.

. 4. Tackett next contends that the trial court erred by allowing evidence of his prior burglary and drug convictions when lie had not placed his character into evidence. Although he objected to the admission of the burglary conviction, he did not object with respect to the drug conviction. Accordingly, we limit our consideration to the burglary conviction. The State concedes that Tackett had not placed his character in issue with respect to that conviction and that questioning him about that conviction was thus error. It contends, however, that because of the overwhelming evidence against Tackett, this error was harmless.

We find that Tackett had not placed his character in issue, and we agree with the parties that admission of the burglary conviction was thus error. “[A] defendant who testifies may not be impeached by a prior felony conviction involving moral turpitude unless he first has placed his character into evidence.” We further find, however, that it was harmless.

In Johnson v. State, we applied harmless error analysis in this context as follows:

In light of the overwhelming evidence of [defendant’s] guilt, including eyewitness testimony regarding [his] sale of cocaine to undercover police officers, his prior conviction for sale of cocaine to an undercover police officer, as well as the lack of a viable defense, the admission of a 20-year-old misdemeanor shoplifting conviction . . . was harmless.

Here, each of the three victims testified, as did a similar transaction witness. The mother of the brother and sister testified that her daughter spontaneously stated that she and Tackett had “secrets” and further testified as to what both children told her the day after the offenses in describing them. The mother also testified that she later found under her bed, together with K-Y jelly, a statue of a hand with the middle finger extended, which her son told, her Tackett had used in anally sodomizing him. Tackett admitted that he had seen, in the house in which he lived with the mother, a statue of a hand with its middle finger extended.

Finally, the burglary conviction was 18 years old at the time of trial and was, as in Johnson, supra, “totally unrelated in any fashion to the charges against [defendant].” Accordingly, although it was error to admit it, in this case we find that “[i]t is highly probable that [admission of the burglary] conviction did not contribute to the judgment.”

Decided September 6, 2002.

Alfred F. Zachry, for appellant.

5. Lastly, Tackett claims that the State failed to prove venue with respect to Counts 5, 13, and 14, involving the neighbor. The mother testified that, at the time of the events, she lived with her two children in Troup County, where all fourteen offenses were alleged to have occurred. The neighbor’s videotaped testimony established that Tackett anally sodomized him in the home of the mother and her children. Accordingly, venue was established beyond a reasonable doubt with respect to Count 5, charging aggravated child molestation of the neighbor.

The neighbor’s videotaped testimony also showed that Tackett threatened to cut off the neighbor’s foot if he told anyone about the molestation and that the threat was made at the same place. Accordingly, venue was established beyond a reasonable doubt with respect to Count 13, the cruelty to children charge involving the neighbor.

The neighbor’s videotaped testimony, however, contains nothing with respect to either the substance or the place of occurrence of Count 14, charging aggravated child molestation in “making [the neighbor] place his mouth on the penis of [Tackett].” The neighbor testified that Tackett “stuck his penis in my mouth” and that “we was in Columbus . . . when all that happened. And somewhere right up by Atlanta.” Although he also testified that the sister was “around” at the time and that Tackett “called us back there in the bathroom,” that testimony does not prove beyond a reasonable doubt that the offense occurred in Troup County. Accordingly, we reverse Tackett’s conviction of aggravated child molestation of the neighbor as charged in Count 14.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Mikell, J., concur.

Peter J. Skandalakis, District Attorney, Lynda S. Caldwell, Assistant District Attorney, for appellee.

       (Citation omitted.) Martinez v. State, 241 Ga. App. 863-864 (1) (528 SE2d 294) (2000).

       (Footnotes omitted.) Taylor v. State, 248 Ga. App. 715, 717 (5) (548 SE2d 414) (2001); see also Eller v. State, 253 Ga. App. 573, 574 (1) (560 SE2d 60) (2002) (“Since [defendant’s] trial counsel did not testify at the hearing on [defendant’s] ineffective assistance claim, we assume trial counsel’s actions were strategic.”) (footnote omitted).

       Tackett argues other aspects of what he claims was insufficient preparation for trial; but he enumerates only the failure to interview State’s witnesses prior to trial, and “a party cannot expand his enumerations of error through argument or citation in his brief.” (Citation omitted.) Arnold v. State, 253 Ga. App. 307, 308 (1), n. 1 (560 SE2d 33) (2002).

       249 Ga. App. 242, 244-245 (2) (a) (547 SE2d 326) (2001).

       Id.

       (Citation omitted.) Id. at 244.

        Martinez, supra.

       (Footnote omitted.) Mann v. State, 273 Ga. 366, 370 (2) (541 SE2d 645) (2001).

       233 Ga. App. 301, 305 (3) (c) (504 SE2d 8) (1998).

       (Citations omitted.) Id. We also noted that the conviction there “was totally unrelated in any fashion to the charges against [defendant of selling cocaine]”; that is true here as well, as the underlying intent in Tackett’s burglary conviction was the intent to commit theft.

       The statements to the mother were admissible under the Child Hearsay Statute, OCGA § 24-3-16.

       See Johnson, supra.

        Johnson, supra at 305 (3) (c); see n. 10, supra.

        Johnson, supra at 305 (3) (c).

        See Robinson v. State, 275 Ga. 143, 144 (2) (561 SE2d 823) (2002) (evidence that dead body discovered in yard on edge of named street and that named street is in forum county sufficient to establish venue in murder prosecution).

       See Cash v. State, 254 Ga. App. 718, 721 (2) (563 SE2d 459) (2002) (State must prove venue beyond a reasonable doubt).


text:
    A02A0924.
    ROBERTS v. THE STATE.
    (570 SE2d 708)
   Mikell, Judge.

A jury convicted Noel G. Roberts of nine counts of armed robbery, five counts of kidnapping, and one count of theft of a motor vehicle. The trial court sentenced him as a recidivist to a total of six consecutive terms of life in prison without parole plus eighty years to serve. Roberts appeals from the denial of his motion for new trial, asserting that the trial court erred in denying his motion for a continuance to secure a psychiatrist to perform an independent examination, refusing to disqualify his second public defender, failing to charge the jury on the option of guilty but mentally retarded, and admitting the testimony of the court-appointed psychologist. In addition, Roberts asserts that his two public defenders rendered ineffective assistance. Finding no error warranting reversal, we affirm.

The facts relevant to Roberts’s enumeration of errors follow. His first attorney, public defender William Traylor, filed a notice of intent to present an insanity defense in May 1998. On June 1, the court ordered the members of the forensic services team at the Georgia Mental Health Institute to conduct a psychiatric evaluation of Roberts and to submit a report to the parties and the court. Traylor submitted a plethora of background information to the team, including police reports, summaries of witnesses’ statements, Roberts’s statement to police, and his criminal history. Traylor also wrote that Roberts had not confessed to all the charged crimes and was unlikely to do so when interviewed.

The forensic psychologist, Robert J. Storms, Ph.D., J.D., initially evaluated Roberts on July 7, 1998. According to Dr. Storms’s report, Roberts stated that he had recently retained new counsel, Gail Mack-inson, and wished to delay discussing his case until counsel familiarized herself with it. Mackinson entered an appearance on October 16, 1998. Dr. Storms interviewed Roberts again on October 2 and November 9, 1998, and filed a report with the trial court on December 14.

In his report, Dr. Storms found Roberts highly articulate, well-spoken, logical, and coherent. Dr. Storms concluded that Roberts was competent to stand trial and suffered no mental disorder that would have impaired his ability to distinguish right from wrong at the time of the crime. According to Dr. Storms, Roberts admitted that he had smoked $300 worth of crack cocaine and had become intensely paranoid during the 72-hour period prior to his arrest. Dr. Storms diagnosed him as depressed and concluded that the depression led to self-medication, making him desperate and impulsive.

Dr. Storms testified during the hearing on motion for new trial that the first interview was very short because Roberts was in the process of obtaining new counsel. Although Roberts declined to discuss the charges against him during all three interviews, Dr. Storms reported that he felt capable of rendering an opinion concerning Roberts’s state of mind at the time of the crimes based on the information he had been given concerning each incident.

Mackinson withdrew as Roberts’s counsel on February 16, 1999, and the court immediately appointed a second public defender, John Oliver Ellis, to represent him. On the eve of trial on March 29, 1999, Roberts filed a pro se motion for a continuance, seeking the appointment of new counsel. Roberts informed the court that he was dissatisfied with Ellis because the attorney refused to present an insanity defense. In addition, Roberts believed that a conflict of interest existed between Ellis and the first public defender. Roberts planned to raise an ineffective assistance claim against his first lawyer for advising Roberts not to reveal the details of his crimes to Dr. Storms, and he intended to call counsel as a witness to establish that fact.

Contrary to Roberts’s contentions, Ellis informed the court that he had subpoenaed Dr. Storms and was prepared to pursue an insanity defense. However, based on Dr. Storms’s opinion and his own observations of Roberts, Ellis, an attorney with 20 years of experience, stated that he had advised Roberts that an insanity defense would not likely succeed. Ellis did acknowledge that he had refused to seek funds to retain an independent psychiatrist because he believed an additional evaluation would be futile.

Noting that the case had been pending for nearly 19 months, the trial court refused to delay the trial and concluded that Roberts had been manipulating the court. Roberts waived his right to counsel and proceeded pro se. The court appointed Ellis to remain and advise Roberts. He was convicted on all counts.

1. We first address Roberts’s ineffective assistance of counsel claim against Traylor. Roberts argues that Traylor was ineffective for advising him not to reveal the details of his crimes to the court-appointed psychologist. We disagree. To establish ineffectiveness of trial counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The record shows that Dr. Storms evaluated Roberts pursuant to a court order and did not provide any treatment to him. Accordingly, Dr. Storms was a witness for the court, and Roberts’s communications with him were not protected by the psychologist-patient privilege. “The standard for attorney performance is reasonably effective assistance considering all the circumstances, with a strong presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Traylor explained his strategy at trial when questioned by Roberts:

I told you it was a dilemma. That anything that you said to the State psychiatrist could be used against you, and therefore, if you discussed the offense with them, it would clearly be reported to the State and be used against you. And that, therefore, you should seriously consider not discussing the crimes with them and surely not confessing to the crimes.

Roberts offered no evidence to rebut the presumption that Traylor’s advice was sound trial strategy. It follows that Roberts has failed to carry his burden of showing that Traylor’s performance was deficient.

2. Roberts’s ineffective assistance of counsel claims against his third attorney, public defender Ellis, are twofold.

(a) First, Roberts contends that Ellis was ineffective for refusing to request an independent psychological evaluation. This claim is meritless. Although Ellis testified at the hearing on motion for new trial, he was not questioned regarding this decision. Therefore, the decision is presumed strategic, and “strategic choices made after thorough investigation are virtually unchallengeable.”

(b) Roberts additionally asserts that the trial court should have disqualified Ellis because a conflict of interest existed between Ellis and Traylor such that Ellis could not have effectively cross-examined Traylor concerning his advice to Roberts. On this basis, Roberts contends that the trial court should have appointed him new counsel and granted him a continuance in order to permit additional preparation time. We disagree.

The true test of whether trial counsel was ineffective due to a conflict of interest is whether an actual conflict adversely affected his performance. Until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.

Roberts’s dissatisfaction with his first public defender’s pretrial performance created no conflict of interest relevant to any issue that would properly be resolved by the jury. The trial court did not abuse its discretion in refusing to appoint outside counsel to represent Roberts at trial. A similar issue was addressed in Jefferson v. State. In that case, we held that a pending ineffectiveness claim based on trial counsel’s pretrial performance created no conflict of interest relevant to the issues addressed at sentencing. Accordingly, the defendant was not entitled to the appointment of a different attorney for resentencing. The same result obtains here. There was no error.

3. Roberts assigns error to the trial court’s denial of his motion for continuance, in which he sought additional time to procure an order appointing an independent psychologist or psychiatrist to assist him in presenting an insanity defense. The trial court denied the request, finding no evidence that Roberts’s sanity would be a significant factor at trial.

The defendant in Rattansay v. State similarly objected to the trial court’s refusal to order a second psychiatric examination. In that case, we noted the appropriate guidelines for evaluating such a claim.

A defendant must be given access to a psychiatrist for an examination and assistance in his defense when the defendant demonstrates to the trial court that his sanity at the time of the offense is to be a significant factor at trial. Perkins v. State, 215 Ga. App. 296 (450 SE2d 324) (1994). Although the trial court is authorized to order a mental health expert to examine the defendant in order to determine whether his sanity is likely to be a significant factor at trial, it is the defendant who bears the burden of making that preliminary showing. See Bright v. State, 265 Ga. 265, 271 (2) (d) (455 SE2d 37) (1995); Perkins, supra.

The denial of a motion for a second psychiatric examination will not be overturned unless an abuse of discretion is shown. There was no abuse of discretion in the instant case. As noted above, Dr. Storms concluded that Roberts was competent to stand trial and suffered no mental disorder that would have impaired his ability to distinguish right from wrong at the time of the crimes. Roberts did not present any evidence to rebut this conclusion. Therefore, he failed to make the preliminary showing that his sanity would be a significant factor at trial. The trial court did not err in denying his motion for a continuance in order to obtain independent psychiatric assistance.

4. Next, Roberts alleges that the trial court failed to charge the jury on the option of finding him guilty but mentally retarded, OCGA § 17-7-131 (c).

The court gave a lengthy charge on insanity and mental illness, tracking closely the language in Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed.), pp. 55-60. However, the court omitted the pattern charge on mental retardation appearing on page 61. Additionally, the option of guilty but mentally retarded was not included on the special verdict form provided to the jury.

The charge on mental retardation is mandatory, and its omission is error. However, where, as here, the error is harmless, reversal is not required. Dr. Storms testified at trial that Roberts was highly articulate, well-spoken, and “very bright.” At the hearing on motion for new trial, Dr. Storms similarly testified that Roberts was so articulate and coherent that he had no reason to suspect mental retardation. Roberts presented no evidence to the contrary. Accordingly, the jury would not have been authorized to find that he was guilty but mentally retarded. Since the error was harmless beyond a reasonable doubt, reversal is not necessary.

Decided September 6, 2002

William R. Wansker, Bernard S. Brody, Thomas J. Ford III, for appellant.

J. Tom Morgan, District Attorney, Robert E. Statham III, Barbara B. Conroy, Assistant District Attorneys, for appellee.

5. Finally, Roberts asserts that the trial court should have excluded Dr. Storms’s testimony because he was not qualified as an expert. Specifically, Roberts claims that the state failed to qualify Storms as an expert in post-traumatic stress disorder prior to soliciting testimony from him during cross-examination that Roberts did not meet any of the criteria for the disorder. This argument is merit-less. It was Roberts, not the state, who summoned this witness. Any error in failing to qualify him as an expert was thus induced by Roberts. “Asserted prejudice based upon induced error is impermissible.” In any event, on cross-examination, the state established Dr. Storms’s credentials as an expert in the field of forensic psychology. Finally, Roberts interposed no objection to Dr. Storms’s qualifications and has thereby waived his right to raise this issue on appeal.

6. In a supplemental brief filed more than 30 days after this appeal was docketed, Roberts’s second appellate counsel filed an additional enumeration of error in which they asserted that Roberts did not voluntarily waive his Sixth Amendment right to counsel because he was not given ten days notice of attorney Mackinson’s withdrawal. Under Court of Appeals Rules 22 and 26 (a), the brief and enumeration of errors must be filed within 20 days after the case is docketed. Since the supplemental brief at issue was filed more than 20 days after the appeal was docketed in this Court, the enumeration of error raised therein was untimely and will not be considered. Roberts’s motion to remand the case to the trial court for a hearing on this issue is denied.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

        Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

        Christenson v. State, 261 Ga. 80, 84 (2) (d) (402 SE2d 41) (1991); see also In the Interest of L. H., 236 Ga. App. 132, 136-137 (3) (511 SE2d 253) (1999).

       (Footnote omitted.) Himmel v. State, 246 Ga. App. 845, 848 (2) (542 SE2d 557) (2000).

       Id.; see also Thomas v. State, 268 Ga. 135, 139 (12) (485 SE2d 783) (1997).

       (Punctuation omitted.) Stephens v. State, 265 Ga. 120, 122 (2) (453 SE2d 443) (1995), citing Strickland, 466 U. S. at 690.

       (Citation omitted.) Gray v. State, 240 Ga. App. 716, 718 (2) (523 SE2d 626) (1999).

       We note that new appellate counsel (Roberts’s fourth lawyer) was appointed post-conviction in order to pursue an ineffective assistance claim against the public defenders.

       209 Ga. App. 859 (434 SE2d 814) (1993).

       Id. at 861 (1).

       240 Ga. App. 165 (523 SE2d 36) (1999).

       Id. at 167 (2).

        Callaway v. State, 208 Ga. App. 508, 510 (1) (431 SE2d 143) (1993).

        Rattansay, supra; see also Brown v. State, 260 Ga. 153, 158 (7) (391 SE2d 108) (1990) (denial of funds to obtain independent psychiatric evaluation affirmed where defendant failed to rebut court-ordered psychiatrist’s conclusion that he was sane).

       OCGA § 17-7-131 (c) provides:
      In all criminal trials in any of the courts of this state wherein an accused shall contend that he was insane or otherwise mentally incompetent under the law at the time the act or acts charged against him were committed, the trial judge shall instruct the jury that they may consider, in addition to verdicts of “guilty” and “not guilty,” the additional verdicts of “not guilty by reason of insanity at the time of the crime,” “guilty but mentally ill at the time of the crime,” and “guilty but mentally retarded.”

        Mack v. State, 206 Ga. App. 402, 403-404 (2) (425 SE2d 671) (1992); see also Moore v. State, 217 Ga. App. 207, 208 (1) (456 SE2d 708) (1995) (guilty but mentally ill).

        Heidler v. State, 273 Ga. 54, 63 (14) (537 SE2d 44) (2000); McDuffie v. State, 210 Ga. App. 112, 113-114 (1) (435 SE2d 452) (1993).

        Heidler, supra; McDuffie, supra; cf. Mack, supra (reversal required where evidence of mental retardation presented).

       (Citation omitted.) Keri v. State, 179 Ga. App. 664, 667 (1) (347 SE2d 236) (1986).

        Clark v. State, 248 Ga. App. 88, 91 (3) (545 SE2d 637) (2001).

        Daniels v. State, 244 Ga. App. 522, 523 (536 SE2d 206) (2000); Lane v. State, 239 Ga. App. 230 (1) (520 SE2d 705) (1999); Wallace v. State, 216 Ga. App. 718, 721 (6) (455 SE2d 615) (1995); McGraw v. State, 199 Ga. App. 389, 390 (405 SE2d 53) (1991); Powell v. State, 198 Ga. App. 509, 512 (3) (402 SE2d 108) (1991).


text:
    A02A1307.
    BLOUNT v. THE STATE.
    (570 SE2d 705)
   Mikell, Judge.

Following the denial of his motion in limine, in which he sought to suppress the results of his breath test, Herbert V. Blount IV was convicted of violating OCGA § 40-6-391 (k). That statute prohibits a person under the age of 21 from driving while his alcohol concentration is 0.02 grams or more. On appeal, Blount contends that the trial court erred in denying his motion in limine because the stop of his vehicle was not supported by reasonable and articulable suspicion. We disagree and affirm.

Three principles guide appellate review of the trial court’s denial of a motion to suppress evidence:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

So viewed, the evidence shows that at approximately 12:30 a.m. on July 17, 2001, Carla Huddleston was putting a glass of water in the sink when she noticed a light on outside her house. She looked up and saw a man sitting in her father’s van. Ms. Huddleston went upstairs and woke her parents. While her father went outside, Ms. Huddleston called the police. She described the suspect, whom she observed from the rear, as a thin, clean-cut, white young man, of medium height, with dark, dirty-blonde hair, and wearing a dark shirt, dark shoes, and jeans.

Sergeant Jay Thompson of the Fayette County Sheriff’s Department testified that when he arrived at the Huddleston home, the door to the van was open and a beer can was lying on the floorboard. According to Sergeant Thompson, there was dew on the ground, and the suspect had left track marks across the yard. The tracks led into a wooded area in the subdivision. Sergeant Thompson testified that deputies flooded the area searching for the suspect but lost track of him in the woods. He further testified that only one road led into the subdivision. According to Sergeant Thompson, there was no vehicular or pedestrian traffic in the subdivision when the search began between 12:30 a.m. and 1:00 a.m.

Finally, at 1:35 a.m., Sergeant Thompson spotted a pickup truck on the road exiting the subdivision. He testified that the truck had dew across the windshield and the hood, making it appear as though the truck had been sitting stationary for quite some time. Sergeant Thompson was unable to see inside the vehicle. When the truck turned out of the subdivision, Sergeant Thompson pulled it over. Sergeant Thompson testified that based on his 12 years of law enforcement experience, he suspected that the person for whom they were searching might have stolen a vehicle, given his earlier behavior. The fact that the truck had been recently started after sitting for a long period of time aroused his suspicions even further.

Based on this testimony and argument of counsel, the trial court ruled that articulable suspicion existed to justify the stop of the vehicle to determine whether the driver matched the suspect’s description. Accordingly, the court denied Blount’s motion in limine.

In defining what cause is sufficient to authorize police to stop and detain a person, the United States Supreme Court has determined that courts should take the totality of the circumstances into account and determine whether the detaining officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” The determination contains two elements.

First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions — inferences and deductions that might well elude an untrained person. . . . The second element ... is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing.

The evidence in this case satisfies Cortez. When he stopped the truck, Sergeant Thompson, a trained law enforcement officer, was in the midst of a manhunt in a quiet residential subdivision otherwise devoid of pedestrian or vehicular traffic. Deputies had failed to locate the suspect in the woods. Based on his training and experience, it was reasonable for Sergeant Thompson to suspect that the individual, who had already entered a vehicle without permission, was attempting to flee utilizing a different vehicle. In addition, the truck which was stopped was covered with a layer of dew so thick that Sergeant Thompson was unable to see inside, leading to the logical conclusion that it had been started recently and from a nearby location. It was thus reasonable to suspect that whoever was driving the truck was the person observed by Ms. Huddleston. The brief investigatory stop to determine whether the driver matched the suspect’s description was warranted under the totality of the circumstances. There was no error.

Decided September 6, 2002.

Sexton & Morris, Lee Sexton, Joseph S. Key, for appellant.

Steven L. Harris, Solicitor-General, for appellee.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

        Stokes v. State, 238 Ga. App. 230 (518 SE2d 447) (1999), citing Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

        United States v. Cortez, 449 U. S. 411, 417-418 (II) (A) (101 SC 690, 66 LE2d 621) (1981).

       Id. at 418.


text:
    A02A1335.
    STRICKLAND v. THE STATE.
    (570 SE2d 713)
   Mikell, Judge.

John Cleburne Strickland was convicted of disorderly conduct on August 20, 2001, following a bench trial. He filed a notice of appeal on September 24, 2001, 35 days after the conviction was entered. On January 10, 2002, following a hearing which was not transcribed, the trial court granted the state’s motion to dismiss Strickland’s notice of appeal due to unreasonable and inexcusable delay under OCGA § 5-6-48 (c). According to the trial court’s order dismissing the appeal, the court reporter provided a trial transcript to Strickland on November 20, 2001; however, on January 10, 2002, 108 days after the notice of appeal was filed, the record had not been transmitted to this Court. The order further states that Strickland did not pay court costs until the end of December 2001, approximately three months after the notice of appeal was filed. Strickland filed the present appeal, arguing that the trial court erred in dismissing his first notice of appeal. He also challenges his conviction. We affirm.

1. Strickland has failed to demonstrate that the trial court abused its discretion by dismissing his notice of appeal. In Vaughan v. Buice, 253 Ga. 540 (322 SE2d 282) (1984), the Supreme Court affirmed the trial court’s dismissal of a notice of appeal due to the appellant’s unreasonable and inexcusable delay in paying the court costs. In Vaughan, as in the case sub judice, no transcript of the hearing on the motion to dismiss was provided. The Supreme Court held:

Where, as here, there is no transcript (none having been requested) and no agreed statement of the facts is furnished[,] OCGA § 5-6-41 (g), the appellate court is bound to assume that the trial court’s findings are supported by sufficient competent evidence for there is a presumption in favor of the regularity of all proceedings in a court of competent jurisdiction.

(Citation and punctuation omitted.) Id. at 540. See also Burns v. Barnes, 154 Ga. App. 802 (1) (270 SE2d 57) (1980) (“Where no transcript is included in the record on appeal we must assume that the evidence was sufficient to support the judgment.”).

Furthermore, based on the facts set forth in the trial court’s order, it is clear that dismissal of the notice of appeal was not an abuse of discretion. See Plumides v. American Engines & Transmissions, 227 Ga. App. 885, 886 (490 SE2d 552) (1997). OCGA § 5-6-48 (c) provides, in pertinent part, that “the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file ah affidavit of indigence. ...”

We afford broad discretion to trial courts who must make factual determinations regarding the cause for delay in processing appeals. Plumides, supra at 885. In its order, the trial court concluded that Strickland failed to pay court costs for approximately three months, that the record had not been transmitted to this Court at the time of the dismissal, and that Strickland failed to show that the delay was reasonable or excusable. Strickland did not file a pauper’s affidavit in connection with his appeal, and he admits in his appellate brief that he is represented by private counsel and is not proceeding as an indigent. Accordingly, we cannot say, particularly in the absence of a transcript of the hearing, that the trial court abused its discretion in dismissing Strickland’s notice of appeal. See id. at 886. See also Vaughan, supra.

2. Because the trial court properly dismissed Strickland’s appeal, we are without jurisdiction to consider his remaining enumerated errors regarding the merits of his conviction. See generally Hose v. State, 159 Ga. App. 842 (285 SE2d 588) (1981).

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

Decided September 6, 2002.

Lloyd J. Matthews, for appellant.

John C. Strickland, pro se.

Keith C. Martin, Solicitor-General, Matthew M. McCord, Assistant Solicitor-General, for appellee.

       The evidence demonstrated that Strickland drove to the house of an African-American family, called one of the occupants a “nigger,” and brandished a weapon.

       The transcript was fded on that date as well.