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

text:
    A93A0523.
    FRANKLIN et al. v. TACKETT.
    (433 SE2d 710)
   McMurray, Presiding Judge.

Plaintiffs brought this personal injury action against defendant seeking damages stemming from an automobile collision. Defendant denied liability and the case proceeded to trial. The jury returned a verdict in favor of defendant and judgment was entered accordingly. This appeal followed. Held:

1. The plaintiffs are black and defendant is white. There were three blacks on the jury and defendant used his peremptory challenges to strike each one of them. Plaintiffs made a Batson (Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69)) motion and called upon defendant to explain why he struck all of the blacks on the jury panel. Defense counsel offered race-neutral explanations for striking two of the black potential jurors. With regard to the third black potential juror, defense counsel stated: “I don’t know why I struck [her]. If I’ve got to come up with an excuse, I’m sure I could come up with an excuse. I might ask [plaintiffs’ counsel] why he struck the people he struck. I resent it. I resent it that every time a black person is in court or in any place in this society, the first thing that comes to mind from people like [plaintiffs’ counsel] is that there’s something racial about a case, that there’s something racially involved in the case. I resent it, I strongly resent it, I think the system ought to resent it, and I think your Honor ought to resent it. That’s the only thing I have to say about this. I would ask that the Court reject his motion, whatever it is. I don’t deal in those kind of things so I don’t even know what kind of motion he’s talking about.”

Because defense counsel failed to give a race-neutral reason for striking the third black potential juror, plaintiffs urged the trial court to grant their Batson motion and declare a mistrial. The trial court denied the Batson motion, after first noting “that it was [plaintiffs’ counsel] who injected race into this case” when he probed for bias during voir dire.

Plaintiffs assert the trial court erred in denying their Batson motion. We agree.

“ ‘(C)ourts must entertain a challenge to a private litigant’s racial discriminatory use of peremptory challenges in a civil trial.’ (Emphasis supplied.) Edmonson v. Leesville Concrete Co., 500 U. S__, - (II B) (111 SC 2077, 114 LE2d 660) (1991). As the Supreme Court’s grant of certiorari and remand in Chavous v. Brown, _ U. S.-(111 SC 2791, 115 LE2d 966) (1991), clearly demonstrate, the holding in Edmondson does not merely apply to civil actions in federal court. It applies equally to civil actions in state courts.” Strozier v. Clark, 206 Ga. App. 85, 86 (1) (424 SE2d 368).

“[Defendant] does not contend that employment of peremptory strikes against [all three of the] black potential jurors would not serve to establish a prima facie case of racial discrimination. ‘Thus, the only remaining question is whether [defendant] sufficiently showed “that discriminatory purpose was not involved.” (Cit.)’ Gamble v. State, [257 Ga. 325, 326 (357 SE2d 792)].” Strozier v. Clark, 206 Ga. App. 85, 87 (3), supra.

We have no hesitation in concluding that defendant failed to show the lack of a discriminatory purpose. Why? Because defendant failed to give a “ ‘ “clear and reasonably specific,” explanation of his “legitimate reasons” for exercising the challenges.’ Batson, supra at 1723, 1724 and 1724 (fn. 20).” Gamble v. State, supra at 327. In fact, defendant offered no explanation whatsoever for striking the third black potential juror. Defendant simply stated that he did not know why he struck that juror and resented being called upon to explain his challenges. That statement was wholly insufficient to successfully rebut plaintiffs’ prima facie Batson case and the trial court clearly erred in ruling otherwise. Gamble v. State, supra; Strozier v. Clark, supra.

2. The trial court also erred in refusing to qualify prospective jurors with regard to relationships they may have with any insurance carrier having a financial interest in the outcome of the case. Weatherbee v. Hutcheson, 114 Ga. App. 761 (1) (152 SE2d 715). Cf. Widener v. Mitchell, 137 Ga. App. 730, 732 (5) (224 SE2d 868). Contrary to defendant’s assertion, Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) did not eliminate the practice of qualifying prospective jurors concerning their relationships with insurance carriers involved in a lawsuit.

Judgment reversed.

Cooper, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur fully in Division 1.

I concur in Division 2 because it applies the law. However, in my view, the qualifying question should not even be asked. A juror would not be biased or prejudiced by having some relationship with an involved insurer if the jurors did not know that an insurer has a financial interest in the outcome of the suit. It is an irrelevant question insofar as the issues and evidence in the lawsuit are concerned, as they will not draw insurance into question. See Denton v. Con-Way Southern Express, 261 Ga. 41, 42-43 (402 SE2d 269) (1991), and the authorities cited therein beginning with City Council of Augusta v. Lee, 153 Ga. App. 94, 99 (264 SE2d 683) (1980).

By asking the question, the subject of insurance is obliquely introduced into the lawsuit. If the suit is merely one by an injured party against an alleged tortfeasor, the jurors can surmise by the question that the insurer is defendant’s. This may color the verdict. Of course, as pointed out in Weatherbee v. Hutcheson, 114 Ga. App. 761 (1) (152 SE2d 715) (1966), the carriers of both parties may be involved, as in the event of a cross-action or subrogation. The jurors should not be given the opportunity to guess by the suggestive question. Even if their guess is accurate, the connection is irrelevant and should not be a factor in their deliberations.

Indeed, it has long been the law that “[i]n an ordinary negligence case, not only is a liability insurance policy of a litigant not admissible in evidence, but disclosure to the jury of the mere existence of such contract is ground for a mistrial.” Patillo v. Thompson, 106 Ga. App. 808, 809 (1) (128 SE2d 656) (1962); Goins v. Glisson, 163 Ga. App. 290, 292 (1) (292 SE2d 917) (1982). Yet we tell them during the jury selection process, indirectly but no less certainly, that the interest of an insurance company is at stake. To say that they are charged to confine their deliberations to the evidence ignores the impression already made.

The disqualification is based on the immutable principle that jurors must be omni exceptione majus, which means “above all exception.” Black’s Law Dictionary 1238 (Rev. 4th ed. 1968). The sine qua non of our American adjudication process is a fair and unbiased decision-maker, be it judge or jury. “A jury trial is a travesty unless the jurors are impartial.” Atlanta Coast Line R. Co. v. Bunn, 2 Ga. App. 305, 306 (58 SE 538) (1907). No less now than in 1879, “A big part of the battle is the selection of the jury, and an impartial jury is the corner-stone of the fairness of trial by jury.” Melson v. Dickson, 63 Ga. 682, 686 (1) (1879).

So it was held over a hundred years ago, based on the common-law exclusion of all servants, that an employee of a defendant is properly rejected as a juror. Central R. Co. v. Mitchell, 63 Ga. 173, 179 (1879). As the court recognized in that case, “It is almost impossible, however incorruptible one may be, not to bend before the weight of interest. . . .” Of course, in such instances the employee would know of the employer’s interest because of its status as a party. The rule of exclusion of the employee of a party is a rule of safety “which recognizes the influence to which humanity is generally susceptible.” Atlantic Coast Line R. Co., supra. In that case, the rule was applied to employees of plaintiff, the court pointing out that “[t]he employees of a plaintiff should be disqualified as jurors for the same reason that they would be if they were the employees of the defendant; and the employees of a person or partnership should be disqualified for the reason that would disqualify them if they were the employees of a corporation.” Id. at 306.

City of Sandersville v. Moye, 25 Ga. App. 64 (4) (102 SE 552) (1920), seems to be the first case which held that jurors are disqualified if they or their relatives are stockholders of a non-party company which had written a bond to indemnify defendant from liability.

The practice of qualifying jurors as to non-party insurers was followed in Bibb Mfg. Co. v. Williams, 36 Ga. App. 605, 607 (1) (137 SE 636) (1927). The court acknowledged that evidence of liability insurance is inadmissible, “as being irrelevant and immaterial,” and a mistrial should be granted if mere exclusion and appropriate instructions “can not disabuse the prejudicial impression created upon the jury.” However, it went on to state, where defendant is insured, “the employees, stockholders, and relatives of stockholders of the insurance carrier are disqualified to serve as jurors in the case.” As to the method of ascertaining this relationship, it was held not to be an abuse of discretion for the court to inquire whether any juror is an employee or stockholder of, or related to a stockholder of, the insuranee company. This was followed in Farrar v. Farrar, 41 Ga. App. 120 (1) (152 SE 278) (1930). This of course introduces the subject of insurance to all jurors; it does not simply ferret out those who might be disqualified. And therein lies the evil of this method.

The first Supreme Court case on the subject is apparently Atlanta Coach Co. v. Cobb, 178 Ga. 544, 549 (174 SE 131) (1934), where the Court held that a jury should be qualified as to an indemnity company which is pecuniarily interested though not a party to the record. The court goes back to Bryan v. Moncrief Furnace Co., 168 Ga. 825 (149 SE 193) (1929), which applied the rule that jurors may be challenged propter affectum for suspicion of bias or partiality, which challenge may be either a principal challenge or a challenge to the favor. “A principal challenge is where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favor, as that a juror . . . has an interest in the cause. . . .” Bryan, supra at 825 (1) (a). Penal Code § 858, which applied to civil and misdemeanor cases, is cited as authority. Bryan, supra at 827. Bryan involved jurors who were members of an organization which was a party in the lawsuit. The court in Atlanta Coach Co., extrapolated and stated its view that “[undoubtedly an officer, employee, or stockholder of the indemnity company, or one related to a stockholder, would be disqualified as a matter of law to serve as a juror in such case, and there is no contention to the contrary by counsel in the present case. Cf. Dobbins v. Marietta, 148 Ga. 467 . . . [(1918)].” Atlanta Coach Co., supra at 549.

Dobbins applied the statute which is now substantially OCGA § 15-1-8, to the effect that a judge cannot sit in any case or proceeding in which he is pecuniarily interested, or related to either party within a specified degree of consanguinity or affinity. “The word ‘party’. . . ‘would include any one pecuniarily interested in the result of the case,’ and would not be limited ‘to a person who is a party to the record.’ [Cits.]” Dobbins v. City of Marietta, 148 Ga. 467, 468 (97 SE 439) (1918).

Does this not presuppose the factfinder’s knowledge of the non-party’s interest, before it can affect the factfinder’s decision-making? Bryan mentions the underlying principle to be served: “omni exceptione majores.”

If the decision-maker has an interest or stake in the outcome, he or she cannot be unbiased, despite all efforts; the inability to totally divorce oneself from one’s interest is in the nature of the human mind. If there is someone or some entity which has an interest in the outcome, and the decision-maker is connected to that entity whereby the outcome will affect the decision-maker as well, then the decision-maker cannot be unbiased if he knows of the entity’s interest. But if he or she is oblivious to it, then it cannot be a factor in the decision-making. It is simply not part of the universe of influences.

So, with respect to an employee, or officer, or stockholder of an insurance company which has an interest in the outcome, or policyholder of a mutual insurance company, if such a juror does not know of it, it cannot color his or her participation in reaching a verdict. The minute it is mentioned, of course such juror becomes disqualified. So why mention it? It only contaminates the whole jury with the knowledge that some party’s insurance company is involved. This was admitted in Elsberry v. Lewis, 140 Ga. App. 324, 325 (2) (231 SE2d 789) (1976): “no jury can remain ignorant after the qualification questions that the named company is interested in the litigation in some way.” Far better it would be to ferret out the insurer’s employees and officers, if such need be, by simply asking for jurors’ occupations and then, having disclosed only to the judge the identity and interest of the insurer, challenge for a cause not revealed to the prospective juror. Stockholders and policyholders of mutual companies (but not policyholders of stock companies, see Weatherbee, supra at 765; OCGA § 33-14-2), can be ascertained by juror questionnaires which ask for stock ownership by the juror or spouse, or by the simple expedient of asking what stock, if any, the jurors own. While this may take a little time, it would assure the true objective of excluding insurance coverage from becoming a factor in the case’s adjudication. But as I said earlier, it would appear that these people would not be challenge-able for cause unless they knew of the connection.

It is a case of letting the cat out of the bag. Why do it, when the harm sought to be avoided is avoided by simply keeping it in?

There is a flaw in the reasoning in the Court of Appeals’ Bibb Mfg. Co. and the Supreme Court’s Atlanta Coach Co. cases and their progeny. It is demonstrated in the conclusion in Atlanta Coach Co. that “where ... an indemnity company is pecuniarily interested though not a party to the record . . . [undoubtedly an officer, employee, or stockholder of the indemnity company, or one related to a stockholder, would be disqualified as a matter of law to serve as a juror in such case. . . .” Atlanta Coach Co., supra at 549. The flaw is that the reasoning overlÓoked the poisoning ingredient of knowledge. Without the link of knowledge, there is no disqualifying interest, because the interest will not affect the decision-making.

Immediately after presenting this reasoning, Atlanta Coach Co. notes: “Cf. Dobbins v. Marietta, 148 Ga. 467 (97 S. E. 439) [(1918)].” In that case, a judge had erroneously not disqualified himself from a suit in which certain non-party property owners and taxpayers to whom he was related had an interest. Although the short opinion does not say so, it is apparent that the judge knew of the interest. It related to public action of the city to pave a certain street and sidewalk which would require assessments against abutting property owners and taxpayers. The four earlier cases cited all describe instances where the disqualified decision-maker would also have known of the connection: Roberts v. Roberts, 115 Ga. 259 (41 SE 616) (1902) (the judge was related to counsel, whose fee was contingent); State Mut. Life Ins. Co. v. Walton, 142 Ga. 765 (83 SE 656) (1914) (the judge was related to the beneficiary of a life policy issued by the company against which a receivership was sought); Mayor &c. of Columbus v. Goetchius, 7 Ga. 139 (1849) (city taxpayers are incompetent to try a case in which they were liable to be taxed to pay the judgment; they could be “challenged, propter affectum, for suspicion of bias or partiality.” Id. at 142); Central of Ga. R. Co. v. Hammond, 109 Ga. 383 (34 SE 594) (1899) (mistrial demanded when juror had, after jury dispersed for night, shared a drink and a cigar and a bed with plaintiff’s witness/counsel’s assistant).

The court in Atlanta Coach Co., recognizes that mention of an indemnity contract or any other “impertinent” reference would be objectionable but differentiates this inquiry as “a bona fide effort to preserve the right of trial by an impartial jury.” Its recitation of the rule is correct: “Where there is reasonable cause to believe that a juror may be . . . disqualified, it is not only proper but apparently necessary that he should be placed upon his voir dire for the purpose of determining this question, and whatever is necessary for the proper and orderly conduct of a trial or for the selection of a competent and impartial jury therefor can not be said to be erroneous.” (Emphasis in original.) Atlanta Coach Co., supra at 549. It is the application of this rule that suffers a missing link. There is not reasonable cause to believe that a juror would be biased if he did not know that an insurance company in which he had a pecuniary interest itself had an interest in the suit’s outcome. Innocence of the fact would protect the integrity of the verdict.

Atlanta Coach Co. was immediately followed in Tatum v. Croswell, 178 Ga. 679 (174 SE 140) (1934) (it was error for the judge not to qualify jurors with regard to whether any were employees, stockholders, or related to stockholders in defendant’s non-party insurer); and Coleman v. Newsome, 179 Ga. 47 (174 SE 923) (1934) (it was error for the judge not to qualify the jurors with respect to whether any were employees of the non-party interested insurer, some of whose employees worked in the county from which jurors were drawn).

In sum, in qualifying the jury, if it is indeed harmful to allow an insurer’s employee or other connected person to serve even if he or she does not know of the insurer’s interest in the case, the method for ascertaining such relationships with the non-party insurer should not be a direct question identifying the insurer or insurance, because this draws the forbidden subject inexcisably into the mix of influences on the jury’s deliberations. The jurors might be asked instead, for instance, whether any of them is connected in any way to anyone or to any company which has a financial interest in the outcome of the case. If he or she is an employee or stockholder, etc., and if he or she knows of the company’s interest, it can be related to the court without the knowledge of the other jurors so as not to contaminate them with knowledge of the insurer’s interest.

Decided July 13, 1993.

Kenneth L. Shigley, for appellants.

Tisinger, Vance & Greer, Thomas E. Greer, Douglas C. Vassy, J. Branson Parker, for appellee.

See 56 ALR 1454, “Right to interrogate jurors on voir dire with reference to insurance,” and 4 ALR2d 792, “Questioning jurors on the voir dire regarding insurance.”

Competing here are the right of plaintiff to exclude from the jury persons interested in the insurer which is the real party in interest on the defense side, on the one hand, versus the right of defendant to the exclusion of the subject of insurance which might cause jurors to conclude that defendant was less careful because he knew he was insured or that an insurance company rather than defendant personally would have to pay the judgment, on the other hand.

        Denton was disapproved to the extent that it suggested a new equal protection analysis, in Grissom v. Gleason, 262 Ga. 374, 376 (2) (418 SE2d 27) (1992).


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A93A0826.
    CLAFFEY v. THE STATE.
    (433 SE2d 441)
   Smith, Judge.

After her motion to suppress evidence was denied, Sandra Claffey entered a plea of guilty to a charge of violating the Georgia Controlled Substances Act, OCGA § 16-13-20 et seq., by possessing more than one ounce of marijuana. OCGA § 16-13-30 (b). As a part of her negotiated plea, the prosecutor and the trial court agreed to an express reservation of Claffey’s right to bring this appeal from the denial of her motion to suppress. See Mims v. State, 201 Ga. App. 277, 278 (1) (410 SE2d 824) (1991).

The record reveals that Clayton County law enforcement officers assigned to the Narcotics Unit obtained a warrant to search Claffey’s rented apartment in a single-family home. The purpose of the warrant, as stated in the affidavit, was to search for illegal drugs. Appellant was not at home when the officers arrived to execute the warrant. She and Jeff Claffey arrived later that night in a car owned and driven by a friend. The car stopped at the curb in front of the house and several officers approached it with ilashlights. When the door was opened, a plastic bag containing a green leafy substance subsequently identified as marijuana was immediately seen and seized by the officers.

Appellant contends her motion to suppress was erroneously denied because the State failed to carry its burden of showing that the stop of the car and the seizure of the contraband were authorized.

1. She maintains that the officers did not possess an articulable suspicion that a crime either had been or was being committed sufficient under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), to support an investigatory stop.

However, it was not necessary that the State show the officers had an articulable suspicion of any independent crime as a basis for stopping the car. Deputy Ward testified that the officers were expecting appellant to return at any moment; that the occupants of the car were approached and stopped in order to determine their identity and whether they were the apartment’s residents. The warrant provides evidence that a neutral and detached magistrate had found probable cause to believe the law was being violated by the occupants of the apartment. Since the lessee of the premises on which the search warrant was being executed could lawfully be detained to aid the execution of the warrant, Michigan v. Summers, 452 U. S. 692, 701-703 (III) (101 SC 2587, 69 LE2d 340) (1981), the officers could validly approach and briefly detain the occupants of a car that had just come to a stop at the residence to determine whether any of them lived there. See State v. Akinsonwon, 200 Ga. App. 287, 288 (407 SE2d 434) (1991).

Moreover, there was other justification for the stop. Ward received information over his police radio indicating that the car had entered the driveway and backed out as if to leave, but was blocked by a police car. This was enough to create an articulable suspicion of flight. Summers, supra at 702. In addition, the officers had obtained a “no-knock” provision in the warrant based on their concern for their own safety and their fear that evidence might be destroyed, and such concerns provided additional justification for the stop. Id. at 702; Hayes v. State, 202 Ga. App. 204, 205-207 (414 SE2d 321) (1991).

2. Appellant also asserts that the seizure of the contraband was unauthorized.

Although we agree with the State that appellant would have no standing to object to a search of the car, Ragin v. State, 192 Ga. App. 686, 687 (2) (385 SE2d 770) (1989), the car was not searched. Instead, when Ward approached the car, he observed through the window, by the light of the police flashlights, what appeared to him to be “some sort of interchange [between the Claffeys] with their hands below [his] line of sight” in which they “pass[ed] some object between [them] selves, and then [appellant] appeared to be trying to hide an object in the floorboard area.” When the car door opened, Ward immediately smelled marijuana and observed in plain view on the floorboard a clear plastic bag containing what appeared to be marijuana. The officer was not required to ignore it. It was properly seized. Bozeman v. State, 196 Ga. App. 743, 744 (1) (397 SE2d 30) (1990).

Decided July 13, 1993.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Gina C. Naugle, Gregory K. Hecht, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Cooper, Judge.

text:
    A93A0065.
    CIPROTTI v. UNITED INNS, INC.
    (433 SE2d 585)
   Cooper, Judge.

Appellant was allegedly injured in an altercation with the manager of a lounge at a Holiday Inn. Seeking recovery for damages sustained in that incident, appellant sued “United Inns, Inc. d/b/a Northside Inns, Inc. d/b/a Holiday Inn.” She later amended her complaint to change the defendant’s name to “United Inns, Inc. a/k/a United Inns, Inc. of Tennessee d/b/a Northside Inns, Inc. d/b/a Holiday Inn Atlanta 1-285.” Appellant filed the complaint and amendment pro se and continues to represent herself. Process was served on CT Corporation, the registered agent for United Inns, Inc. of Tennessee and for Northside Inns, Inc. However, affidavits filed by appellee show that although appellee is affiliated with United Inns, Inc. of Tennessee and Northside Inns, Inc. and all three entities share the same corporate secretary, appellee is a separate corporation which is not authorized to do business in Georgia and does not have a registered agent for service in this state. It appears from the record that Northside Inns, Inc. owns and operates the Holiday Inn in question, but it was not named as a party defendant. The trial court dismissed appellant’s complaint without prejudice for insufficiency of service of process, and appellant appeals from that dismissal.

1. In her first two enumerations of error, appellant contends that the trial court erred in considering the affidavits of appellee’s corporate secretary and a representative of CT Corporation in concluding that appellee had not been served. However, appellant raises no valid arguments for excluding the affidavits, and they are clearly relevant to the issue of sufficient service. Contrary to appellant’s assertion, a corporate secretary is authorized to state from personal knowledge whether the corporation does business and has a registered agent for service in a particular state. See, e.g., Coe & Payne Co. v. Wood-Mosaic Corp., 125 Ga. App. 845, 851 (189 SE2d 459) (1972), rev’d on other grounds 230 Ga. 58 (195 SE2d 399) (1973). Moreover, the fact that CT Corporation accepted service did not preclude CT Corporation from later stating that it was not the registered agent of the named defendant; service on the proper party is the responsibility of the plaintiff, not the individual accepting service. Accordingly, the trial court did not err in considering and basing its decision on these affidavits.

2. Appellant next contends that the trial court erred in considering appellee’s supplemental exhibits. These exhibits were court records from previous litigation involving these same parties and arguably showed that appellant should have known that appellee was not the proper party defendant. These exhibits were not relevant to the issue of sufficiency of service and there is nothing in the record to indicate that the trial court based its dismissal on them. Thus, this enumeration of error is without merit.

Appellant’s fourth enumeration of error, that the trial court erroneously failed to consider a portion of her own affidavit in which she stated that the general manager of the hotel told her that legal papers should go to appellee, is without merit for the same reason. While this statement may be relevant to the issue of whether appellant exercised due diligence, it is not relevant to sufficiency of service and does not change the fact that process was not served at any time on anyone with actual authority to receive service of process for appellee. See News-Press Pub. Co. v. Kalle, 173 Ga. App. 411 (1) (326 SE2d 582) (1985).

3. Appellant next argues that the trial court erred in finding that appellee had not been served. It is undisputed that process was served only on CT Corporation and affidavits submitted by appellee show that CT Corporation was not appellee’s registered agent for service. Therefore, the trial court’s finding regarding service is supported by evidence in the record and will not be disturbed on appeal. See Terrell v. Porter, 189 Ga. App. 778 (1) (377 SE2d 540) (1989). Nor can we accept appellant’s assertion that service was sufficient because appellee and its affiliated corporations were alter egos which should all be treated as one corporate entity. That corporations share a mailing address and officers is not sufficient basis for “piercing the corporate veil” or concluding that one or more of the corporate entities is a “shell.” See Boafo v. Hosp. Corp. of America, 177 Ga. App. 75 (338 SE2d 477) (1985).

4. Lastly, appellant contends that appellee was timely served when she amended her complaint to add “a/k/a United Inns, Inc. of Tennessee” after appellee’s name. A plaintiff who has sued the wrong defendant may move to amend her pleading after the statute of limitation has run and that amendment will relate back to the time of the original pleading if the proper defendant has received actual notice and knew or should have known that, but for plaintiff’s mistake, it would have been the party sued. OCGA § 9-11-15 (a), (c). Moreover, where the real defendant has been served but the papers refer to that defendant by an incorrect name, the plaintiff has the right to amend to correct the misnomer. Atlanta Veterans Transp. v. Westmoreland, 123 Ga. App. 466 (181 SE2d 504) (1971). Appellant might have been able to rely on one or both of these legal principles if she had properly amended her complaint to change the party defendant. However, she did not do so, for such a change cannot be made by simply adding a different corporation’s name as a “d/b/a” or “a/k/a.” Both before and after appellant amended her complaint, appellee was the only corporation actually named as a party defendant, and appellee was not properly served. Accordingly, the trial court did not err in dismissing appellant’s complaint for lack of service. Terrell, supra.

Decided May 3, 1993 —

Reconsideration denied July 14, 1993 —

Laura M. Ciprotti, pro se.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Robert W. Browning, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, P. J., concur.


text:
    A93A0246.
    MESSICK v. THE STATE.
    (433 SE2d 595)
   Cooper, Judge.

Appellant was charged in a one-count indictment with “aggravated assault upon the person of Carolyn Barnett by pointing a pistol, a deadly weapon, at, toward and in the direction of Carolyn Barnett and orally threatening to shoot her.” He was convicted by a jury of terroristic threats and appeals from the judgment entered on that conviction.

Evidence adduced at trial shows that appellant and Barnett lived together in Barnett’s house prior to the incident giving rise to appellant’s indictment. On the night of the incident, appellant went to Barnett’s house and found Barnett with Willie Nutall, another man she had been dating. An altercation between appellant and Barnett ensued, and Nutall stepped in to protect Barnett. Appellant went out of the room and returned with a large handgun. Accounts of what happened at that point diverge. Barnett testified that appellant pointed the gun at her head and threatened to shoot her if she did not tell Nutall to leave, and that appellant subsequently threatened to “blow her brains out” if Nutall ever came over again. Barnett’s testimony was corroborated by that of Nutall. Appellant testified that he felt threatened by Nutall and that he simply stood there with the gun at his side and asked Barnett to tell Nutall to leave. Nutall did leave, and appellant left soon afterward.

The State and appellant both asked for jury charges on lesser included offenses. The trial court granted the State’s request to charge on terroristic threats as a lesser included offense but denied appellant’s request to charge on simple assault.

1. Appellant first argues that the trial court erred in instructing the jury on terroristic threats as a lesser included offense of aggravated assault. A person commits the offense of aggravated assault with a deadly weapon when he uses a deadly weapon to place another person in reasonable apprehension of immediately receiving a violent injury (OCGA § 16-5-21 (a) (2)), and a person commits the offense of a terroristic threat when he threatens to commit any crime of violence with the purpose of terrorizing another person (OCGA § 16-11-37 (a)). Appellant cites several cases for the proposition that the crime of terroristic threats is not a lesser included offense of aggravated assault as a matter of law because the two offenses involve proof of separate and distinct essential elements. See, e.g., Echols v. State, 134 Ga. App. 216 (4) (213 SE2d 907) (1975). However, unlike the federal rule, the rule in Georgia provides that “a lesser offense may be included in the greater offense as a matter of fact or as a matter of law.” Burgess v. State, 189 Ga. App. 790, 791 (2) (377 SE2d 543) (1989). A lesser crime is included in a charged crime so that the accused may be convicted of the lesser crime when: “(1) [i]t is established by proof of the same or less than all the facts . . . required to establish the commission of the crime charged; or (2) [i]t differs from the crime charged only in the respect that a less serious injury or risk of injury ... or a lesser kind of culpability suffices to establish its commission.” OCGA § 16-1-6. (Emphasis supplied.) We have interpreted this statutory provision to mean that even if a lesser offense is not included in a charged offense as a general matter because the two offenses have different elements, the lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well. See, e.g., Burgess, supra at (2); Parks v. State, 180 Ga. App. 31 (4) (348 SE2d 481) (1986). In the instant case, the State alleged in the indictment that appellant pointed, a gun at Barnett and threatened to shoot her. From the evidence presented at trial to support these allegations, the jury would have been authorized to find either that appellant used a gun to place the victim in reasonable apprehension of immediately receiving a violent injury or that appellant threatened to commit a crime of violence with the purpose of terrorizing the victim. Thus, terroristic threats was included in the offense of aggravated assault with a deadly weapon as a matter of fact in this particular case, and the trial court did not err in instructing the jury accordingly.

Decided June 4, 1993 —

Reconsideration denied July 14, 1993 —

Eason, Howard, Bowen, Jones & Heard, James W. Howard, for appellant.

Lewis R. Slaton, District Attorney, for appellee.

2. Appellant further contends that even if terroristic threats is an included offense of aggravated assault with a deadly weapon, the trial court’s instruction to that effect was error because the indictment failed to notify appellant that he could be convicted of terroristic threats. This contention has already been rejected by the Georgia Supreme Court. “A defendant is on notice of the crime charged ... in the indictment or accusation and (1) lesser crimes which are included in the crime charged as a matter of law . . . and (2) other lesser crimes which are shown by the facts alleged to show how the crime charged was committed.” McCrary v. State, 252 Ga. 521, 524 (314 SE2d 662) (1984); see also Turner v. State, 253 Ga. 762 (3) (325 SE2d 149) (1985).

3. Lastly, appellant argues that the trial court erred in refusing to give his requested instruction on simple assault as a lesser included offense. In essence, appellant suggests the jury could have found that appellant acted in a manner causing a reasonable apprehension on the part of Barnett that she might immediately receive a violent injury, but did so without the use of a gun. A defendant is entitled to have the jury consider every lesser included offense authorized by the evidence. See Dickson v. State, 167 Ga. App. 685 (2) (307 SE2d 267) (1983). However, it is undisputed that appellant had a gun in this case. Accordingly, a conviction for simple assault would not have been authorized, and the trial court did not err in refusing the requested charge. Watson v. State, 235 Ga. 461 (5) (219 SE2d 763) (1975). See also Zachery v. State, 158 Ga. App. 448 (3) (280 SE2d 860) (1981).

Judgment affirmed.

McMurray, P. J., and Beasley, P. J., concur.


author: Pope, Chief Judge.

text:
    A93A0436.
    STATE OF GEORGIA v. POSTELL et al.
    (433 SE2d 588)
   Pope, Chief Judge.

This appeal arises from a civil forfeiture action filed by the State seeking forfeiture, pursuant to OCGA § 16-13-49, of $14,627.25 in United States currency, a 1984 Volvo 240 and a Beretta .380 caliber pistol.

On the day the subject property was seized, the officer of the Augusta police department in charge of this investigation testified he received information from a reliable informant that there was going to be a delivery of heroin to a certain address. The informant did not know who the carrier was going to be but gave the officer the name of certain individuals who might be the carrier. Joseph Postell, the individual from whom the subject property was seized, was not named by the informant as a possible carrier, but the officer testified that Postell had been mentioned as a carrier for drugs to the same address on other occasions. Another officer assigned to the investigation testified he had participated in the arrest of Postell on another occasion and Postell was in possession of drugs at the time of his arrest.

On the night the informant told the officer there was to be a delivery of heroin, the officer in charge of the investigation observed Postell driving on the same street and near the address where the delivery was to be made in the subject Volvo 240. When Postell was stopped, the officer approached his car and told him why he stopped him and asked if he could search his vehicle. Postell replied that he had nothing to do with the delivery and consented to the search. As Postell exited the vehicle, the officer saw the subject Beretta .380 pistol between the driver’s seat and the console. At that time the officer moved Postell and his two passengers to the back of the vehicle. When he started to frisk Postell, Postell said, “I ain’t got nothing on me but money.” The officer instructed him to leave his hands on the car, but Postell reached into his jacket pocket and removed $353.25 in currency and two packages of heroin. Postell was then placed under arrest. As the officer continued the search of his person, he found $2,374 in another pocket of Postell’s jacket and $12,000 in his pants pocket.

The trial court denied the State’s request for forfeiture on the basis that probable cause was lacking “to stop, search, and seize the property of [Postell].” The State appeals that decision and, in its sole enumeration of error, contends the trial court erred in determining there was no probable cause for the initial stop of the vehicle.

1. The trial court erred in determining probable cause was needed to justify the initial investigative stop. “ ‘An individual’s freedom to use public highways is circumscribed by the state’s police power where the officer has specific and articulable facts which warrant a stop of the vehicle to investigate the circumstances which provoke a reasonable and founded suspicion. United States v. BrignoniPonce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975). “(W)hat is a ‘reasonable articulable ground’ for the detention may be less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment. (Cit.)” (Cit.)’ West v. State, 194 Ga. App. 620, 621 (391 SE2d 673) (1990).” State v. Watson, 205 Ga. App. 313, 314 (422 SE2d 202) (1992). We hold that because the officers who made the stop had reason to believe that a delivery of heroin would be made that evening to an address close to the area where Postell was stopped, knew Postell had been identified as a courier for drugs to that same address on another occasion and that Postell had been in possession of illegal drugs on at least one occasion, they had a reasonable articulable ground for stopping his vehicle.

Decided May 10, 1993 —

Reconsideration denied July 14, 1993 —

Michael C. Eubanks, District Attorney, Richard E. Thomas, Scott A. Drake, Assistant District Attorneys, for appellant.

As soon as an officer approached the vehicle and explained his reason for stopping Postell, he sought and received Postell’s consent to search the vehicle. With regard to the search of Postell’s person, because the officer observed a weapon in Postell’s vehicle as he exited the vehicle, the officer reasonably had cause to believe that Postell might have other weapons and to conduct a pat down for weapons. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968); see Bundy v. State, 168 Ga. App. 90, 91 (308 SE2d 213) (1983). Because Postell pulled contraband and currency out of his pocket as soon as ■the officer began the pat down, Postell was then placed under arrest and the continuance of the search was incident to lawful arrest. For these reasons, we hold the trial court erred in determining that the search of Postell and his vehicle was illegal.

2. The State further argues that the subject property is contraband within the meaning of OCGA § 16-13-49. This contention exceeds the scope of the State’s sole enumeration of error. Furthermore, as the trial court did not make a determination concerning whether the subject property was contraband, this contention presents nothing for appeal since this court is a court for the correction of errors. This contention should be addressed to the trial court upon remand.

Judgment reversed and case remanded.

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

Christopher G. Nicholson, for appellees.


text:
    A93A0450.
    REA v. SYSTRONICS, INC.
    (433 SE2d 590)
   Pope, Chief Judge.

Plaintiff James C. Rea filed suit against his former employer Systronics, Inc. for breach of his employment contract claiming he was terminated without cause pursuant to the terms of his employment contract and is entitled to certain additional compensation pursuant to Section 8 (i) of that contract. Plaintiff further alleges defendant has failed to pay him certain commissions allegedly due him. Defendant filed a motion for partial summary judgment seeking judgment as a matter of law on plaintiff’s claim for monies allegedly due him pursuant to Section 8 (i) of plaintiff’s employment contract. The trial court granted defendant’s motion for partial summary judgment. We reverse.

1. Commencing on January 1,1989, plaintiff was hired by defendant as its Vice President of Sales and Marketing for a term of six years, unless his employment was terminated earlier as provided in Section 8 of his employment contract. He was terminated on January 2, 1992.

Two subsections of Section 8 of the contract are pertinent to this appeal. Subsection (c) provides: “Employer may terminate Employee’s employment after January 1, 1992 if the accumulated sales (excluding acquired gross sales) for Employer for the years 1989, 1990 and 1991 are less than $4,560,000.00[.]” Subsection (i) allows the defendant to terminate plaintiff without cause if defendant makes certain semi-monthly payments to plaintiff until December 31, 1994.

Although the trial court’s order granting defendant’s motion for partial summary judgment does not state the grounds on which that motion was granted, it appears the trial court found the plaintiff was terminated for cause pursuant to Section 8 (c) of his employment contract and therefore plaintiff was not entitled to additional compensation pursuant to Section (i) of the contract. Plaintiff contends because accumulated sales for 1989, 1990 and 1991 exceeded $4,560,000, his termination on January 2, 1992 was without cause and to the extent the trial court’s grant of partial summary judgment in defendant’s favor was based on a finding that plaintiff was terminated for cause in accordance with Section 8 (c) the grant is erroneous.

Plaintiff first argues that the term “acquired gross sales” is ambiguous as it is used in Section 8 and defendant’s grant of partial summary judgment must be reversed on that basis. We do not agree. “Acquired gross sales” is defined in Section 6 (a) of the contract. That section provides in pertinent part: “It is anticipated that through stock acquisitions or asset acquisitions Employer intends from time to time to acquire products, technology, patents, accounts, and other revenue producing products from other entities. Employer is negotiating with Albany International Corp. to acquire a portion of this company’s product line. With respect to gross sales of Employer which are derived from or related to the acquisition of another company’s business, including but not limited to, Albany International Corp.’s Webb Inspection Systems [‘Webspec’], it is agreed that Employee’s commissions as to said gross sales (hereinafter called ‘acquired gross sales’[)] shall be calculated by the following formula:

Calendar Year:

1990

Commission Formula

.004 times the acquired company’s previous year’s gross sales volume (for product line(s) acquired) plus 4.5% times the increase in said acquired gross sales for present year over the acquired gross sales for the previous calendar year. . . .”

Plaintiff contends that “acquired gross sales” as that term is defined in Section 6 (a) and used in Section 8 (c) means only the base volume of sales acquired with the company, that is, the sales of the acquired company for the year prior to acquisition. As the language quoted above illustrates, however, there are two aspects to “acquired gross sales”: (1) the acquired company’s gross sales volume for the year preceding its acquisition, as plaintiff contends; and (2) the increase in sales of the acquired company or product over the gross sales volume for the company acquired for the year preceding its acquisition. Thus, when determining whether plaintiff was terminated for cause pursuant to Section 8 (c) of the contract, the trial court did not err in deducting all sales of products for the acquired companies.

Plaintiff also argues that because he was compensated for any increase in sales of products of the acquired companies over the gross sales volume for the year preceding the company’s acquisition at the same rate as he was compensated for sales of other products sold by defendant, the increase in sales should not be considered part of “acquired gross sales.” This argument is without merit. Under the terms of the contract, plaintiff was compensated at the same rate for any increase in acquired gross sales and for sales of products other than those of acquired companies. Accordingly, the amount of compensation received by plaintiff for the sales is not determinative of whether any increase in sales of products of acquired companies were part of “acquired gross sales” as defined by the contract.

2. Our holding that “acquired gross sales” includes all sales of products for the acquired companies does not end our analysis of whether defendant was terminated for cause pursuant to Section 8 (c) of the contract. In opposition to defendant’s motion for partial summary judgment, plaintiff submitted his affidavit in which he avers that he was prevented from meeting the sales minimum set forth in Section 8 (c) of the contract because defendant’s president, John Roberts, “took away [his] authority to manage and supervise the Defendant’s sales force and sales program and assigned [plaintiff] to duties which restricted [his] ability to see that the sales mínimums were reached. As a result of Roberts’ conduct, the Defendant’s sales, which had been sharply rising under [plaintiff’s] management, flattened out. In approximately February, 1991, Roberts told [plaintiff] that he was a better sales manager than Roberts and returned control of sales back over to [plaintiff]. However, in June, 1991, control of sales was again taken from [plaintiff] and given to Roberts. At that time, [plaintiff] was primarily given as customers only companies who had need of [an acquired company’s] products and one other company who had previously been a customer. The better customers, or potential customers, were given to a salesman with less demonstrated ability than [plaintiff]. . . . As a result of the Defendant taking control of sales from [plaintiff] for these two periods of time, contrary to the intent of the parties’ Agreement, it became impossible for [plaintiff] to increase sales to a point where his sales mínimums, as established in Section Eight of the Agreement, could be reached without [acquired company product] sales.”

It is well settled that “ ‘where a party prevents the performance of a stipulation of a contract undertaken by the other party, he is estopped from setting up in his own behalf any injury which may have resulted from the nonperformance of such condition.’ . . . [Cit.]” Kent v. Hunt & Assoc., 165 Ga. App. 169, 171 (5) (299 SE2d 123) (1983).

Defendant did not present evidence to refute plaintiff’s allegation that Roberts relieved him of his duties of sales manager. Defendant argues, however, that Roberts’ actions were authorized by Section 3 (a) of the contract. That section provides in pertinent part: “Subject to the general supervision and pursuant to the orders, advice and direction of [Roberts] the [plaintiff] agrees to assist Employer in the following: (1) achieving sales objectives. . . .” The term “general supervision” is not defined in the contract. We hold plaintiff’s affidavit was sufficient to create issues of material fact concerning whether Roberts’ action of relieving him of his duties as sales manager constituted general supervision of plaintiff by Roberts and whether Roberts’ actions prevented plaintiff from achieving the sales minimum set forth in Section 8 of the contract. Accordingly, the trial court erred in granting defendant’s motion for partial summary judgment.

Judgment reversed.

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

Decided May 10, 1993 —

Reconsideration denied July 14, 1993.

Walls & Corlew, Harold D. Corlew, for appellant.

Harris, Phillips & Harris, R. Britt Harris, Jr., Steven D. Harris, for appellee.


author: McMurray, Presiding Judge.

text:
    A93A0493.
    COLEMAN v. HICKS et al.
    (433 SE2d 621)
   McMurray, Presiding Judge.

On May 5,1992, plaintiff Cathy Coleman brought suit against defendants William E. Hicks and Karen Jenkins Rice in the Superior Court of Laurens County. She alleged that defendants represented her in a medical malpractice action that she filed previously against Dr. Channing S. Jun; that she agreed to settle the medical malpractice case on January 9, 1990; that under the terms of the settlement agreement she was to receive a cash payment of $110,000 and monthly payments of $400 for 20 years; and that the total present worth of the settlement package was $206,000. She also alleged that after she settled the medical malpractice case she underwent six additional surgical procedures; that defendants settled the medical malpractice case prematurely; and that defendants’ settlement of plaintiff’s medical malpractice case “fell below the standard of representing clients with the reasonable care, skill and diligence required of all licensed attorneys in Georgia. . . .” In addition, plaintiff alleged that defendants failed to exercise reasonable care by “improperly calculating and taking as attorney fees one-third of the total worth of the settlement package rather than one-third of the . . . present value of the structured settlement.”

Plaintiff claimed that as a direct and proximate result of defendants’ negligence, she is “forever barred from collecting compensation for future physical and mental impairments and complications . . . [and] suffer[s] great pain and anguish of both mind and body.” She sought damages for “pain and suffering . . . resulting from . . . extreme anxiety, stress and depression.” She also sought “monetary damages” resulting from the “improper evaluation of the value of [her] medical malpractice case” and the “improper calculation and collection of attorney fees. ...”

Plaintiff did not attach an expert’s affidavit to the complaint. However, she alleged that the period of limitation was to expire within ten days of the filing of the complaint and that, because of time constraints, an expert’s affidavit could not be prepared. Plaintiff added that she would supplement the complaint with such an affidavit pursuant to OCGA § 9-11-9.1 (b).

On May 12, 1992, plaintiff amended her complaint, alleging that in March 1990, she filed a complaint with the State Bar of Georgia in which she claimed that defendants charged excessive attorney fees; that on May 7, 1990, she met defendants to discuss the State Bar complaint; and that defendants fraudulently misled plaintiff “by telling her that she would have to spend a lot of money to hire an attorney to represent her before the State Bar and that she would have to pay their attorney fees if she lost.” She also alleged that defendants “used their position to mislead, intimidate and confuse” plaintiff; and that because she “could not afford to spend any more money and . . . was sick, weak and taking strong medications, she signed a release for $3,500.00 [and agreed] to dismiss her complaint before the State Bar with prejudice.”

Defendants answered the complaint, denied liability and asserted a statute of limitation defense. They also asserted, inter alia, that plaintiff was not entitled to rely upon any exception to OCGA § 9-11-9.1 and that plaintiff failed to comply with the provisions of that Code section. Thereafter, defendants moved for summary judgment.

Plaintiff responded to defendants’ motion by filing the affidavit of Foy R. Devine. He deposed that, as a practicing attorney, he participated in the settlement of many cases involving structured settlements; that he reviewed the records in this case and the underlying medical malpractice case; and that, in his opinion, defendants deviated from the requisite degree of care and skill in their representation of plaintiff. More particularly, Mr. Devine opined that defendants breached the standard of care “by calculating their fees upon the basis of the total amount of money expected to be paid to the client, including all future payments.” In that regard, Mr. Devine added that the “proper method of calculating fees on future payments is based on the present value of future payments, generally best evidenced by the actual cost of the annuity purchased by the tortfeasor to make the future payments.”

Following a hearing, the trial court granted defendants’ summary judgment motion. Plaintiff appeals. Held:

1. “ Tt has long been the law in this state that a cause of action for legal.malpractice, alleging negligence or unskillfulness, sounds in contract (agency) and, in the case of an oral agreement, is subject to the four-year statute of limitation in OCGA § 9-3-25. (S)uch a cause of action (can) also sound in tort and, thus, be subject to the one-year and/or two-year limitation of OCGA § 9-3-33. Thus, a plaintiff who alleges legal malpractice has two years to bring an action for tort, and four years to bring an action for breach of contract.’ (Citations and punctuation omitted.) Ballard v. Frey, 179 Ga. App. 455, 459 (3) (346 SE2d 893) (1986).” Cheeley v. Henderson, 197 Ga. App. 543, 546-547 (398 SE2d 787) rev’d on other grounds in 261 Ga. 498 (405 SE2d 865). See Kilby v. Shepherd, 177 Ga. App. 462, 463 (339 SE2d 742).

In our view, plaintiff’s complaint sounds in both tort and contract. After all, she seeks damages for pain and suffering, as well as damages for monetary loss. See Cheeley v. Henderson, 197 Ga. App. 543, 546-547, supra. To the extent that plaintiff’s claim sounds in tort, it is barred by the applicable two-year statute of limitation. OCGA § 9-3-33; Ballard v. Frey, 179 Ga. App. 455, 459 (3), supra. To the extent that plaintiff’s claim sounds in contract, it is not time barred. OCGA § 9-3-25; Cheeley v. Henderson, 197 Ga. App. 543, 546-547, supra.

2. “[I]f a plaintiff fails to file an affidavit as required by [OCGA § 9-11-9.1] contemporaneously with a complaint alleging professional malpractice and the defendant raises the failure to file such an affidavit in its initial responsive pleading, such complaint is subject to dismissal for failure to state a claim and cannot be cured by amendment pursuant to Code Section 9-11-15 unless a court determines that the plaintiff had the requisite affidavit available prior to filing the complaint and the failure to file the affidavit was the result of a mistake.” OCGA § 9-11-9.1 (e). In the case sub judice, plaintiff failed to file an expert affidavit with her complaint, relying upon OCGA § 9-11-9.1 (b), which provides: “The contemporaneous filing requirement of subsection (a) of this Code section shall not apply to any case in which the period of limitation will expire within ten days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared.” Although the exception set forth in OCGA § 9-11-9.1 (b) was applicable to plaintiff’s tort claims, it was not applicable to plaintiff’s contract claims. Thus, even though plaintiff’s contract claims were not time barred, they were dismissed properly for failure to comply with OCGA § 9-11-9.1 (a).

3. Even if plaintiff’s complaint were not time barred, it must fail insofar as it can be construed to allege that defendants breached duties imposed by the Code of Professional Conduct when they charged excessive fees for their services. Davis v. Findley, 262 Ga. 612 (422 SE2d 859).

4. Plaintiff contends that, in view of the confidential and sensitive nature of the relationship between attorneys and clients, the statute of limitation did not begin to run until plaintiff discovered that defendants fraudulently misled her at the May 7, 1990 meeting in which plaintiff agreed to dismiss the State Bar complaint. See Arnall, Golden & Gregory v. Health Svc. Centers, 197 Ga. App. 791, 793 (399 SE2d 565). We cannot accept this contention. “ ‘The fraud which will relieve the bar of the statute of limitation must. . . have the effect of debarring or deterring the plaintiff from [her] action. (Cit.)’ ” Arnall, Golden & Gregory v. Health Svc. Centers, 197 Ga. App. 791, 793 (2), supra. It is clear that plaintiff was not debarred or deterred from bringing her action inasmuch as she filed a complaint with the State Bar in March 1990. Besides, the confidential relationship between plaintiff and defendants came to an end when plaintiff filed the complaint with the State Bar, if not before. See Jerry Lipps, Inc. v. Postell, 139 Ga. App. 595 (229 SE2d 78). .

Decided June 17, 1993 —

Reconsideration denied July 14, 1993 —

Karen K. Daniels, for appellant.

Lovett & Hicks, L. Robert Lovett, Frederick V. Massey, for appellees.

5. The trial court did not err in granting defendants’ motion for summary judgment.

Judgment affirmed.

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


author: Beasley, Presiding Judge.

text:
    A93A0563.
    BERINGAUSE v. FOGLEMAN TRUCK LINES, INC. et al.
    (433 SE2d 398)
   Beasley, Presiding Judge.

Plaintiff Beringause sued defendant trucking company, its driver and insurer, to recover damages for the wrongful death of her husband resulting from a collision between the decedent’s car and defendants’ truck. A first trial resulted in a defendants’ verdict, but judgment was reversed and a new trial ordered because it was deemed reversible error to charge on assumption of the risk. Beringause v. Fogleman Truck Lines, 200 Ga. App. 822 (409 SE2d 524) (1991). Upon retrial, a jury awarded plaintiff $100,000. She appeals from the denial of her motion for new trial on the issue of damages.

The evidence adduced at the second trial showed that plaintiff’s decedent, a Georgia Technical Institute campus police officer, was participating in a caravan of vehicles escorting the Georgia Tech football team from Athens to Commerce. In order, the caravan consisted of two marked Georgia State Patrol cars, two Southeastern Stageline buses, an equipment van and Beringause’s security car. They were traveling northbound along a two-lane road, which at times had a third passing lane. Blue police emergency lights were activated on the three police cars as a safety measure to prevent other vehicles from breaking into the procession, to insure the integrity of the convoy.

Defendants’ tractor-trailer was traveling southbound, well within the speed limit, behind a small white car. As the truck crested a hill, the driver observed the blue lights of the convoy approaching from the opposite direction. The first two police cars and the two buses passed the truck. As a van was passing by, the white car slowed or stopped in front of the truck. When the truck driver applied brakes to avoid hitting the white car in front of him, the truck jackknifed and slid across the double yellow line into the oncoming lane, hitting the security car head-on and killing Beringause and a passenger.

Sue Shirley and her daughter Sylvia Thomas were passengers in another vehicle and witnessed the events. Sylvia Thomas testified that the truck jackknifed and slid across the roadway when the truck driver attempted to stop to avoid hitting a white car. Immediately after the collision, she observed a white car stopped in the southbound lane of the roadway and then observed it drive away from the scene. She also testified that the flashing blue lights of the patrol cars in the caravan were the ultimate cause of the accident, in that the white car slowed down in reaction to them, causing the truck driver to brake and skid into oncoming traffic.

Another witness who was driving behind the caravan testified that it “was a spectacle. Everyone was looking to see who, what, when, where, what was going on.” It “slowed” and “condensed” traffic in the southbound lane. Members of the caravan straddled their lane and the passing lane, preventing anyone from safely utilizing the passing lane, and at times the caravan exceeded the speed limit. She acknowledged that at one point she was driving behind the caravan at a speed of about 30 miles in excess of the posted limit. She stated: “It was [as] though this group of vehicles owned the road.”

1. Enumerations of error 3 and 5 challenge the giving of jury instructions to the effect that plaintiff is barred from recovering if the decedent’s negligence was equal to or greater than that of defendants. Although not enumerated as error, plaintiff also asserts that the court erred in giving a charge on avoidance, i.e., that plaintiff may not recover if the decedent by the use of ordinary care could have avoided the consequences. The jury obviously rejected these charges when it returned a verdict in favor of plaintiff. “[C]ase law has long noted that an award of damages ‘renders harmless any error committed by the court in charging the jury on . . . contributory negligence. (Cits.)’ [Cit.]” Heath v. L. E. Schwartz & Son, 199 Ga. App. 452, 453 (405 SE2d 290) (1991). With respect to the avoidance doctrine, the majority stated in Beringause, supra at 824: “There is evidence that appellant’s decedent may have been negligent in failing to have avoided the collision.” Compare Carrandi v. Sanders, 188 Ga. App. 562 (1) (373 SE2d 661) (1988).

2. In enumerations of error 4 and 6, plaintiff contends the court erred in instructing the jury on comparative negligence and concomítantly reduction of damages. Their applicability under the evidence, but not their accuracy, is challenged.

“[I]n a case where absolutely no evidence is presented from which a jury could find the plaintiff was negligent, then it is reversible error for the trial court to instruct the jury on comparative negligence. [Cits.] On the other hand, ‘ “(i)t is a well established rule that an instruction is not abstract or inapplicable where there is any evidence, however slight, on which to predicate it. (Cit.) ‘To justify a charge on a given subject, it is not necessary there should be direct evidence going to that point; it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it.’ (Cits.)” ’ [Cit.]” Jenkins v. Burns, 202 Ga. App. 579 (415 SE2d 30) (1992).

Evidence of Beringause’s participation in the convoy supports an inference of negligence on his part sufficient for the jury in its discretion to reduce plaintiff’s damages. Heath, supra at 454. “Under the comparative negligence rule, the jury may apportion damages as it determines within its discretion to be proper when the evidence shows all parties’ negligence contributed to the injuries, the plaintiff’s to a lesser degree than the defendants’. [Cit.]” Jordan v. Ellis, 148 Ga. App. 286, 290 (250 SE2d 859) (1978). The charges were not erroneous.

3. Appellant contends in enumerations of error 1 and 7 that the trial court erred in concluding that OCGA § 51-12-12 (b) is inapplicable and abused its discretion in failing to grant a new trial on the question of damages as authorized by that Code section. It provides: “If the jury’s award of damages is clearly so inadequate or so excessive as to any party as to be inconsistent with the preponderance of the evidence, the trial court may order a new trial as to damages only, as to any or all parties, or may condition the grant of such a new trial upon any party’s refusal to accept an amount determined by the trial court.”

Subsection (b) was added by amendment effective July 1, 1987. The present cause of action accrued in 1986. Appellant asserts that the provision is procedural in nature and should be given retroactive effect under Polito v. Holland, 258 Ga. 54 (1) (365 SE2d 273) (1988).

In denying the motion for new trial, the court found OCGA § 51-12-12 (b) inapplicable under Hosp. Auth. of Gwinnett County v. Jones, 259 Ga. 759 (386 SE2d 120) (1989), aff’d and reinstated, 261 Ga. 613 (409 SE2d 501) (1991), and correctly concluded that even if the act did apply, a new trial on the basis of damages is not authorized. “ ‘Where “comparative negligence (is) involved under the pleadings and the evidence . . ., a verdict for damages for personal injuries cannot properly be set aside on the ground that the verdict is inadequate.” [Cit.]’ ” Palo v. Meisenheimer, 199 Ga. App. 24, 25 (403 SE2d 881) (1991). Accord Mansfield v. Pizza Hut, 202 Ga. App. 601, 602 (415 SE2d 51) (1992). It was not an abuse of discretion to refuse a new trial. We need not address the retroactive application of OCGA § 51-12-12 (b).

Decided June 29, 1993 —

Reconsideration denied July 14, 1993 —

Fletcher Thompson, C. Lawrence Thompson, for appellant.

Alembik, Fine & Callner, Lowell S. Fine, G. Michael Banick, for appellees.

4. In enumeration of error 2, plaintiff contends the court erred in charging the jury, “it is for you to determine, under the facts and circumstances of the case, whether or not the use of blue lights was done in a negligent manner.”

Beringause, supra at (5), rejected as inaccurate a jury instruction relating to the use of emergency lights which set forth only defendants’ contention “ ‘that (appellant’s) decedent . . . was negligent in failing to properly utilize emergency lights. . . .’” On retrial, the court took Beringause into consideration by charging that the use of blue lights by itself was not negligent. The objected-to portion of the charge is taken out of context. The full charge on this issue is taken verbatim from the first opinion. It provides: “[T]he mere employment of emergency lights in connection with participation in the convoy would not be an act of contributory negligence on the part of Mr. Beringause. . . .” It is followed by the instruction that it is for the jury to determine whether or not under the evidence the emergency blue lights were employed in a negligent manner.

The evidence supports an inference that the flashing blue lights in connection with other activities of the convoy constituted negligence. Thus, “it cannot be said that there was no evidence at all of negligence on [the decedent’s] part. That being so, and it being well settled that an instruction is not inapplicable where there is any evidence, however slight, on which to predicate it [cit.], [there is] no error in the giving of [this] charge[ ].” Ellis v. Dalton, 194 Ga. App. 114 (389 SE2d 797) (1989). Moreover, under OCGA § 9-11-60 (h) the ruling in Beringause, supra, applies in subsequent proceedings which are in the same evidentiary posture. Bruce v. Garges, 259 Ga. 268 (2) (379 SE2d 783) (1989). Plaintiff has not demonstrated that the charge was erroneous.

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A93A0633.
    KREBSBACH v. THE STATE.
    (433 SE2d 649)
   Birdsong, Presiding Judge.

David C. Krebsbach was charged in a four-count accusation, which included one count of DUI and one count of being underage in possession of alcohol by consumption. OCGA §§ 3-3-23 (a) (2); 3-3-23.1 (b) (2). He was convicted only of the latter offense. Held:

1. Appellant asserts the trial court erred in admitting evidence of his prior convictions for DUI and underage possession of alcohol. On direct examination, appellant’s father was called as a witness for the defense and unequivocally implied in his testimony that none of his children, including appellant, would drive if they had been drinking. This testimony tends to support appellant’s defense to the DUI charge (of which he subsequently was found not guilty) that he was not the vehicle driver. Further implied was that appellant did not abusé alcohol, as his father never saw any such instance of abuse, and that the father would obey the law as he had respect for it. The evidence of appellant’s prior convictions for DUI and underage possession, and the terms of his sentence which included a provision that he not drink a drop of alcohol or take any drugs without prescription, directly tended to refute facts implicit in the above testimony. First, it tended to refute that appellant was judicious, as claimed by his father, in not driving after drinking; secondly, in view of the father’s admission that he had been present in court when his son was sentenced for these prior offenses, it also tended to refute the father’s claim that he was unaware appellant ever abused alcohol and his claim that he respected the law, as he subsequently allowed appellant to drink alcohol despite the terms of his probated sentence for these prior offenses.

Admission of evidence rests in the trial court’s sound discretion (Spencer v. State, 260 Ga. 640, 646 (8) (398 SE2d 179)); and evidence should be admitted if it is admissible for any legitimate purpose. Boatright v. State, 192 Ga. App. 112, 116 (6) (385 SE2d 298). Further, we will not reverse the correct ruling of a trial court regardless of the reason therefor. Ely v. State, 192 Ga. App. 203 (4) (384 SE2d 268).

The testimony of appellant’s father was either directly or, at least, indirectly material to pending issues. A witness may be impeached by disproving the facts testified to by him; although a witness may not be impeached because of a discrepancy as to a wholly immaterial matter, a witness may be impeached on a collateral issue which is indirectly material to the issue in the case. Salmon v. State, 206 Ga. App. 469, 471 (2) (426 SE2d 160). “Testimony may be admissible for the purpose of impeaching the veracity of a witness even if it would be impermissible if offered for the purpose of impeaching the defendant’s character.” Martin v. State, 205 Ga. App. 591, 593 (4) (422 SE2d 876). Moreover, although the evidence may reflect adversely on appellant’s character, the line of questioning which opened the door to admission of this evidence was first introduced on direct examination of the defense witness. Compare Turner v. State, 202 Ga. App. 799, 802 (415 SE2d 524). The trial court did not abuse its discretion. Id.

2. Appellant asserts the trial court “erred in failing to fully charge the jury concerning the burden of proof with respect to appellant’s sole defense, that his conduct was excluded from being criminal by OCGA § 3-3-23 (c).” In both the charge and recharge, the court instructed that “there is no burden of proof upon the defendant whatever. The burden never shifts to the defendant to prove innocence”; and, “if the State fails to prove the defendant’s guilt beyond a reasonable doubt, it is your duty to acquit the defendant.” The trial court further gave a tailored charge to the jury as to the provisions of OCGA § 3-3-23 (c), which was the basis for appellant’s justification defense. On appeal charges must be examined and considered in their totality. Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177). When the charges are so examined, it is clear that the trial court adequately instructed on the burden of proof and, in addition, adequately charged the court as to the provisions of OCGA § 3-3-23 (c).

Appellant, however, also contends that the trial court committed reversible error by failing to charge on justification. This assertion is beyond the reasonable scope of appellant’s enumeration of error; an enumeration of error cannot be enlarged by a brief to give appellate viability to an issue not contained in the original enumeration. Chezem v. State, 199 Ga. App. 869, 870 (2) (406 SE2d 522); Rigenstrup v. State, 197 Ga. App. 176, 179 (2) (398 SE2d 25). Thus, the issue is not preserved on appeal.

3. Appellant’s defense was based upon his having drunk alcoholic beverages at home which had been given to him by his parents, and that his parents were present in the house. OCGA § 3-3-23 (c). On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). The jury rationally could have rejected the theory of appellant’s defense, as charged by the trial court, and concluded that the alcoholic beverage was consumed either outside the home (because of the odor of alcohol on appellant’s breath when confronted by the police), or that it was consumed under circumstances not conforming to the requirements of OCGA § 3-3-23 (c). Compare Lee v. State, 201 Ga. App. 827, 828 (1) (412 SE2d 563).

Both parents testified that appellant had permission to obtain alcoholic beverages at will from the refrigerator in their home, but each parent denied appellant drank any alcoholic beverage in their immediate presence on the night in question. Appellant’s mother testified, inter alia, that she was present in another part of the house that night; she did not give appellant any alcoholic beverages that night; and she was not present in a location in the house where she could see and supervise appellant’s drinking. Appellant’s brother confirmed that appellant had his “father’s permission” to drink, but did not know where his father was when appellant was drinking that evening. Appellant’s father testified, inter alia, that he was present in the home that evening; that appellant had his standing permission to go to the refrigerator and help himself to the beers or wine coolers kept there, provided he stayed home thereafter and did not drive; and, that evening, he went downstairs and observed two empty wine cooler bottles in appellant’s room. Appellant testified that neither his father nor mother had physically given him the wine; he still had alcohol in his body when he left the house; and, his father was not present in the room where appellant was drinking. The requirement to “give” in OCGA § 3-3-23 (c) appears to be satisfied if the parents constructively “give” the alcoholic beverage, by authorizing a person under 21 to consume alcohol in their home. One of the more common definitions of “give” is “to provide or supply one with (food or drink)”; and the definition of “supply” includes to “furnish with.” (Emphasis supplied.) Webster’s Third New Inti. Dictionary (1986). To require, as a proscribed act, that the parents or guardian physically hand each and every beverage container to the underage person seems absurd in view of the nuances of modern family life. However, the statutory subsection also requires that the parent or guardian be “present” when the alcoholic beverage is given to the underage person. One common definition of “present” is “being before, beside, with, or in the same place as someone or something.” Id. It is in this context that the legislature intended the word “present” to be used in OCGA § 3-3-23 (c), as it was the legislature’s concern that the parents be physically present with their underage offspring whenever they allowed them to drink in the home so that effective and prompt parental supervision could be maintained over the drinking activity involved. This interpretation is supported by the action of the legislature in substituting the prior statutory provision authorizing underage persons to drink alcoholic beverages “[i]n the home with parental consent,” (then OCGA § 3-3-23 (b) (3)) with the current and more stringent provisions of OCGA § 3-3-23 (c) in order to “clarify when alcoholic beverages may be possessed or consumed by an underage person in the home.” Ga. L. 1986, p. 789, §§ 1, 2. As the evidence of record conclusively establishes that the parents were not so “present” when appellant consumed the alcoholic beverage in his home, the record establishes beyond a reasonable doubt (and also a matter of law in this instance) that appellant could not claim the benefits of the OCGA § 3-3-23 (c) exception, and likewise established beyond a reasonable doubt that he had consumed alcoholic beverages in violation of OCGA § 3-3-23 (a) (2). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); see Hadaway v. State, 190 Ga. App. 5 (2) (378 SE2d 127).

Decided June 24, 1993 —

Reconsideration denied July 14, 1993 —

Larry W. Yarbrough, for appellant.

Benjamin F. Smith, Jr., Solicitor, Barry E. Morgan, Philip M. Goldstein, Assistant Solicitors, for appellee.

Judgment affirmed.

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


text:
    A93A0648.
    GASTON v. THE STATE.
    (433 SE2d 306)
   Pope, Chief Judge.

Defendant Charles Gaston appeals his conviction for voluntary manslaughter and the trial court’s denial of his motion for new trial.

1. Defendant argues the trial court erred in failing to charge on accident, his sole defense to the crime charged. The defense of accident is set forth at OCGA § 16-2-2, which provides: “A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” (Emphasis supplied.) The defendant’s own testimony belies his argument that failure to charge on accident is error in this case. Defendant testified he saw the victim, who allegedly owed defendant $200, standing outside a convenience, store. Defendant called the victim to his truck and asked him for the $200 but the victim told him he did not have the money to repay him. He noticed a bulge in the victim’s pocket while they were talking. Defendant stated that the victim’s voice began to sound angry and the victim stuck his hand in his left front pocket. As the victim removed his hand from his pocket, the defendant said he grabbed it and a gun fell out of the victim’s hand. The defendant then picked up the gun and hit the victim with the gun. Defendant further testified “[w]hen he turned around like that to run, I hit him again right there. That’s when the gun got off.” By the defendant’s own admission, the victim was attempting to run from him at the time he decided to hit him yet again with the gun. The law is well-settled that a defendant is not “entitled to a charge on the defense of accident simply because his criminal attempt had the unintended consequence of completing the offense by actually causing a violent injury to the victim. See OCGA § 16-5-20 (a) (1).” Grude v. State, 189 Ga. App. 901, 902 (1) (377 SE2d 731) (1989).

We find defendant’s attempts to distinguish Grude to be without merit. Although defendant may not have initially acted aggressively toward the victim, by his own admission the victim was attempting to run from him at the time he intentionally struck him again with a gun and the gun discharged. Thus, “ ‘[notwithstanding defendant’s contention that [accident] constituted his sole defense, the trial court was not required to give a charge thereon since it was not authorized by the evidence. [Cits.]’ [Cit.]” Green v. State, 197 Ga. App. 16, 17 (1) (397 SE2d 590) (1990).

2. Defendant’s contention that the State should not have been allowed to argue during closing argument that the defense of accident is inapplicable in this case is also without merit. The State could properly rebut the factual issues raised by defendant. As we discussed in Division 1, the defense of accident is not applicable to this case; therefore, the State’s argument did not mislead the jury. Under these facts no harm resulted to the defendant from the State’s argument. See Freels v. State, 195 Ga. App. 609, 611 (2) (394 SE2d 405) (1990).

3. Defendant posits the trial court erred by allowing into evidence the .38 caliber revolver found in a purse between defendant’s legs at the time he was arrested. The weapon was properly admitted to show the circumstances of defendant’s arrest. Roker v. State, 262 Ga. 220, 222 (6) (416 SE2d 281) (1992); Bixby v. State, 234 Ga. 812, 814 (1) (218 SE2d 609) (1975).

4. Defendant argues the trial court erred in allowing the testimony of a firearms examiner concerning the pressure pull of the trigger of an RG .22 revolver. Although the gun that defendant was holding at the time he hit the victim was not found, the firearms examiner testified that the bullet removed from the victim and given to him by the medical examiner was a .22 caliber lead bullet that was fired from either an RG or a Rohm .22 caliber revolver. The defendant’s defense at trial was that the gun he was holding at the time he hit the victim accidentally discharged. Accordingly, evidence concerning what force was required to cause an RG .22 caliber revolver to discharge was a proper subject of testimony.

5. Defendant asserts that the trial court erred by refusing to allow the defendant to cross-examine one of the investigating officers about alleged misconduct by the officer during another homicide investigation. The officer had been cleared of all charges at the time he was called as a witness in this case. The trial court did not err in prohibiting the defendant from cross-examining the investigator about the allegations of misconduct. Jackson v. State, 261 Ga. 734, 735 (3) (410 SE2d 115) (1991).

6. The evidence presented at defendant’s trial was sufficient for a rational finder of fact to find defendant guilty beyond a reasonable doubt.

7. During the State’s closing argument the prosecutor used the gun found close to defendant at the time of his arrest, which was not the gun used to strike the victim, to illustrate to the jury why the State considered the defendant’s defense of accident absurd. The prosecutor made it clear to the jury that the gun he was holding as he discussed the defendant’s testimony was not the gun used to strike the victim.

Contrary to defendant’s contentions otherwise, the prosecutor’s actions during closing argument in this case are highly distinguishable from the prosector’s demonstration in Williams v. State, 254 Ga. 508, 511 (3) (330 SE2d 353) (1985), which our Supreme Court held constituted reversible error. In that case the prosecutor actually introduced evidence into the trial during the closing argument. Id. In this case the prosecutor simply demonstrated to the jury the defendant’s account of the events leading to the victim’s death. We hold that the prosecutor’s conduct of demonstrating the defendant’s testimony for the jury falls within the “considerable latitude in imagery and illustration” afforded the State during closing argument. Johnson v. State, 246 Ga. 126, 129 (269 SE2d 18) (1980).

8. Defendant also contends the trial court erred in denying his motion for mistrial because the district attorney made two statements during his closing argument about matters that were not part of the evidentiary record at trial. The record reveals that during the State’s examination of the firearm’s expert testimony concerning both matters was presented to the jury. Although the prosecutor did misstate the evidence slightly with regard to safety mechanisms on RG .22 caliber revolvers by stating that all rather than most of the models made after 1968 have a hammer block-type safety, defense counsel promptly made an objection and restated the evidence on that subject correctly. The trial court simply ruled that the jury would have to remember the evidence. Under these facts, the prosecutor’s statement would, at most, constitute harmless error.

Judgment affirmed.

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

Decided June 3, 1993 —

Reconsideration denied July 14, 1993.

John A. Pickens, Douglas B. Ammar, for appellant.

Lewis R. Slaton, District Attorney, Vivian D. Hoard, Assistant District Attorney, for appellee.


text:
    A92A0668.
    QUINN v. THE STATE.
    (433 SE2d 592)
   McMurray, Presiding Judge.

Via indictment, defendant was accused of two counts of aggravated assault (Counts 1 and 2), criminal damage to property in the second degree (Count 4), and possession of a firearm by a convicted felon (Count 3). More specifically, with regard to the assault and criminal damage counts, the indictment alleged that on or about November 30, 1991, defendant shot at Lewis Burns (Count 1) and Lee Burns (Count 2), and damaged Lee Burns’ truck by shooting a bullet into the side of it (Count 4). Following a jury trial, defendant was convicted upon Counts 1 and 4 of the indictment. (Defendant was acquitted upon Count 2; Count 3 was nolle prossed.) He was sentenced to serve twenty years on Count 1 and five years on Count 4 and he moved for a new trial. The trial court denied the motion for a new trial and defendant appealed. Held:

1. In his first enumeration of error, defendant asserts the evidence was insufficient to enable a rational trier of fact to find defendant guilty of aggravated assault beyond a reasonable doubt. We disagree.

Viewing the evidence in a light favorable to the State, as we are bound to do, we find the following: On the day in question, Lee Burns and his father, Lewis Burns, were returning from a hunting trip. Lee Burns was driving; Lewis Burns was in the passenger seat. They took a detour on a country road so Lee Burns, a Georgia Forestry Commission fire fighter, could show his father where he had put out a fire a few days previously. They drove past defendant who was standing out in a field, carrying a pistol. The road came to an end and they turned around. They approached defendant; he was now standing on the side of the road, facing the passenger side of the truck. They slowed down “to talk to him, be polite . . . and just mosey on. ...” The next thing they knew, defendant raised the gun to “an aiming level,” pointed it in Lewis Burns’ direction, and fired. Lewis Burns knew that defendant fired a shot at him. Lee Burns did not see defendant shoot the gun; but he heard the shot and drove off hurriedly. When he was out of defendant’s sight, Lee Burns stopped the truck. Lewis Burns examined the truck and observed a bullet hole on the passenger’s side, “right behind [him].” He was scared.

We have no hesitation in concluding that the evidence was sufficient to support defendant’s conviction for aggravated assault beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Meriwether v. State, 204 Ga. App. 113 (2) (418 SE2d 451). “[I]ntentionally firing a gun at another, absent justification, is sufficient in and of itself to support a conviction of aggravated assault. See Williams v. State, 249 Ga. 6, 8 (287 SE2d 31) (1982). See generally OCGA § 16-5-21 (a) (2).” Steele v. State, 196 Ga. App. 330 (2), 331 (396 SE2d 4).

2. In his second enumeration of error, defendant contends the trial court erred in admitting his gun into evidence. In this connection, defendant points out that he was not given a Miranda (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694)) warning, before he gave the gun to the officer who arrested him. We find no merit in this enumeration of error.

The arresting officer testified that he obtained an arrest warrant for defendant and went to defendant’s house to arrest him. Before he placed defendant under arrest, the officer told defendant about the shooting incident, adding that he was “not quite clear on everything that happened,” but that he did know that a “shiny nickel weapon” was used in the incident. Then he asked defendant if he owned a similar weapon. Defendant replied that he did; he “went inside,” brought the gun out and “voluntarily” gave it to the officer. Thereupon, the officer placed defendant under arrest, advised him of his rights, and put him in a police vehicle.

In Ingle v. State, 123 Ga. App. 56 (179 SE2d 305), defendant’s automobile was seen leaving a house that had been burglarized and the license plate number was given to the police. Armed with a warrant to search the automobile, the police proceeded to the defendant’s house, served him with the warrant, and conducted the search. When the police told the defendant about the burglary and suggested that someone else may have been driving the automobile, the defendant replied that he was the only one who had been driving it. The defendant asserted that his statement should not have been admitted in evidence because he was not advised of his Miranda rights. This court scrutinized the meaning of an “in-custody interrogation” and disagreed. Quoting from Miranda, the court observed: “ ‘By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ . . . ‘An understanding of the nature and setting of this in-custody interrogation is essential to our decisions today.’ ” Id. The court continued its analysis, noting that Miranda then went on “to give examples ranging from physical brutality to prolonged questioning, which take place in privacy and represent an effort, physically or psychologically oriented, to obtain admissions or a confession from the person who has in the interrogator’s judgment become the prime suspect and against whom he is proceeding, at least in his own mind, in an accusatory rather than a generally investigative framework.” Id. With the essence of an “in-custody interrogation” in mind, the court concluded: “This is not the sort of ‘in-custody interrogation’ forbidden by the Miranda case without prior warning to the defendant, regardless of whether the peace officer, who had not arrested the defendant at that point, would have done so if he had attempted to leave the scene. The testimony was admissible. . . .” Id.

In the case sub judice, defendant was asked whether he had a gun when he was approached initially by the arresting officer. As the court said in Ingle, supra, “ [t]his is not the sort of ‘in-custody interrogation’ forbidden by the Miranda case. . . .” After all, “ [t] he issue of custody involves an objective standard: Would a reasonable person in the defendant’s situation have believed that he was physically deprived of his freedom of action in any significant way? If not, he is not subject to the compulsive atmosphere of an actual arrest, and Miranda does not apply. [Cits.]” Childs v. State, 257 Ga. 243, 247 (357 SE2d 48). In our view, a reasonable person in defendant’s shoes would not have believed that his freedom was curtailed in a significant way when he was first approached by the arresting officer, told about the shooting incident, and asked if he had a gun. Accordingly, we find no error in the admission of the gun into evidence.

3. “ ‘Where the State seeks to introduce evidence of a fungible nature, it must show a chain of custody adequate to preserve the identity of the evidence. (Cit.) The burden is on the State “to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.” (Cits.) The State need not negative every possibility of tampering, and “need only establish reasonable assurance of the identity” of the evidence. (Cit.)’ Anderson v. State, 247 Ga. 397, 399 (2) (276 SE2d 603) (1981).” Ealy v. State, 203 Ga. App. 219, 221 (2) (416 SE2d 559).

The State showed with “reasonable certainty” that the bullet offered into evidence remained in the custody of law enforcement personnel and the crime laboratory, that it had not been tampered with, and that it was the same as that taken from Lee Burns’ truck. It follows that the State established a proper chain of custody for the bullet and that the trial court did not err in admitting it into evidence. Defendant’s third enumeration of error is without merit.

4. The trial court did not err in permitting evidence of a photographic lineup and Lewis Burns’ identification of a photograph of defendant in the lineup. The photographic lineup was by no means unduly suggestive and Lewis Burns’ in-court identification was not tainted in any way. Zilinmon v. State, 234 Ga. 535 (1) (216 SE2d 830); Duffey v. State, 151 Ga. App. 673, 674 (2) (261 SE2d 421).

Decided June 1, 1993 —

Reconsideration denied July 14, 1993 —

Bates & Baum, Beverly B. Bates, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

Contrary to defendant’s assertion, Duffey v. State, supra, does not stand for the proposition that evidence of a photographic lineup is only admissible in rebuttal. Although other jurisdictions may not permit testimony of a photographic identification during the State’s case-in-chief, e.g., People v. Hines, 491 NYS2d 764, 765 (1985), this jurisdiction does. Zilinmon v. State, 234 Ga. 535 (1), supra.

Judgment affirmed.

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