text:
    A02A0669.
    BISWAS v. THE STATE.
    (565 SE2d 531)
   MlKELL, Judge.

Madhu Biswas was indicted on two counts of murder, two counts of felony murder, and two counts of aggravated assault for the shooting deaths of his two adult sons. A jury found him guilty of two counts of voluntary manslaughter, as lesser included offenses of the malice murder counts, and convicted him of the remaining charges of felony murder and aggravated assault. The court sentenced Biswas to 25 years confinement. Biswas appeals from the denial of his motion for new trial, arguing that the trial court erred in allowing the testimony of his wife without advising her of the marital privilege, in allowing the state to comment on Biswas’ failure to produce evidence, in instructing the jury on impeachment by prior contradictory statements and on the inference that may be drawn from the use of a deadly weapon, and in failing to charge the jury on the principle of retreat. He also argues that he was denied effective assistance of counsel. We affirm the conviction.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).

So viewed, the evidence shows that Biswas had lived in the United States for approximately 15 years after moving from India. On the night of March 15, 1999, the police were called to Biswas’ home, where they found the defendant’s two sons lying on the floor with gunshot wounds. One son, Sujit Biswas, was already dead, and the other, Sujoy Biswas, died later that night at Grady Memorial Hospital.

Biswas was home and spoke with the police. Biswas told Detective John Paul Hughes that he arrived home from work at approximately 10:45 p.m. and found his front door open and his two sons, ages thirty and twenty-eight, lying on the floor bleeding; that he immediately ran to the Brookhaven MARTA station to call the police; and that there were no guns in the house. Detective Hughes noticed blood on Biswas’ shoes and jacket.

A uniformed officer took Biswas to the DeKalb County Police Department, where Biswas was interviewed by Detective Scott Gassner. After waiving his Miranda rights, Biswas told Detective Gassner that he returned home from work to find his sons on the floor and “plenty of blood.” He also told the detective that he did not touch his sons or anything in the house; that he had to call the police from the MARTA station because the telephone at his house did not work; that his wife had been in India since November 1998; and that he had no idea why someone would want to hurt his sons.

While Biswas was at the police department, Detective Hughes obtained a search warrant for the home. There, police found a gun in a briefcase under Biswas’ bed. They also found a box of bullets in the briefcase and determined that six were missing. According to Detective Hughes, Biswas became a suspect at that point in the investigation.

Detective Hughes proceeded to the police department, where he confronted Biswas. Detective Hughes testified: “I advised him that we found his gun, that it had blood on it, and at that time he advised me that he killed his sons.” The detective informed Biswas of his Miranda rights again and began a taped interview. At trial, the state played the audiotape of the interview, in which Biswas told Detective Hughes that he understood his Miranda rights and waived them; that he had lied to Detective Gassner; that his sons beat him on numerous occasions; that his wife, who was in India, actually sent his sons to beat him; that he had been to the hospital twice as a result of the beatings; that he purchased a gun and bullets at a pawnshop that morning; that he was angry with his sons; and that he planned to shoot them. Biswas also said that he returned home that night to find that his sons had broken some of his things; that they refused his request for money to pay the utility bills; that they began hitting him; and that he went into the kitchen, where his sons assaulted him with knives. Biswas said that he went to his bedroom and loaded the gun, and his sons yelled that they were going out to drink. According to Biswas, he proceeded to their bedroom with the gun in his pocket and shot both of his sons. Next, he put the knives back in a drawer in the kitchen, washed his hands, put the gun back in the briefcase, and walked to the MARTA station to call the police. He threw the empty shell casings in a trash can at the station. Bis-was told the detectives that he suffered from high blood pressure and that he had sacrificed everything for his family.

Alex Sporing, an employee of Jerry’s Pawn Shop, testified that he sold Biswas a Rossi .357 Magnum revolver on March 15, 1999. Bernadette Davy, a firearms examiner at the state crime laboratory, testified that the bullets found in the bodies of Biswas’ sons were fired from the Rossi .357 Magnum found in the briefcase under the bed.

Dr. Gerald Thomas Gowitt, the chief medical examiner for DeKalb County, performed the autopsy on Sujit, the son who died at the scene. Dr. Gowitt testified that Sujit suffered three gunshot wounds: one to his head, one to his neck, and one to his chest, and that the wounds to the head and neck caused his death. Dr. Steven Frank Dunton performed the autopsy on Sujoy, who died at the hospital. Dr. Dunton testified that Sujoy also suffered gunshot wounds to the head, neck, and chest.

Biswas’ wife, Kalpana, testified through an interpreter that she and the defendant had been married for forty years; that they also had a daughter who lived in India; that Biswas left India when their older son, Sujoy, was about four years old; that she moved from India to join her husband in Atlanta in 1993; and that their two sons came to Atlanta in 1997. According to Kalpana, both Sujoy and Sujit returned to India to marry, and their wives remained there in a house she owned. She further testified that she was in India when Biswas killed their sons and that she had never seen her sons beat her husband. On cross-examination, Kalpana testified that Biswas paid for their sons’ education, supported the entire family in India, and was a loving father.

The state introduced letters Biswas wrote to his wife, daughter, and son-in-law, in which he complained about his sons and the fact that he had to work while he was in poor health. In the letters, he insisted that Kalpana transfer ownership of the house in India to him and said that the “situation will be really bad” if she did not.

The only defense witness was Sudhir Debnath, an acquaintance of Biswas who was also from India. Debnath, who had met Biswas’ wife and sons, testified that Biswas worked two jobs; that his sons did not work at all while they lived in India; and that Biswas had been very excited for his sons to come to Atlanta. Debnath explained that in India, parents are dependent on their children because there is no social security system, and that it is expected that adult children will support their parents once they start working. Debnath had no personal knowledge of Biswas’ relationships with his sons and his wife.

1. In his first enumerated error, Biswas contends that the court erred in allowing Kalpana Biswas to testify. He suggests that his wife’s testimony was not voluntary because she was under subpoena and that she was not given the opportunity to exercise her marital privilege to refuse to testify against him. We find no error.

As a preliminary matter, the defense did not raise the issue of the marital privilege or object to Kalpana’s testimony at trial. Accordingly, this issue has been waived. See Werts v. State, 196 Ga. App. 452, 454 (8) (395 SE2d 922) (1990). Furthermore, even if Biswas had objected to his wife’s testimony, it would have been proper for the court to allow it.

OCGA § 24-9-23 (a) provides that “[h]usband and wife . . . shall not be compellable to give evidence in any criminal proceeding . . . against each other.” Significantly, “[t]he privilege of refusing to testify belongs to the witness, not to the defendant.” Brown v. State, 261 Ga. 66, 70 (5) (b) (401 SE2d 492) (1991). In this case, Kalpana did not invoke her privilege, and there is no evidence that she was denied the opportunity to do so. We have expressly held that a spouse may waive her privilege by voluntarily taking the stand and testifying. Duncan v. State, 232 Ga. App. 157, 158 (1) (500 SE2d 603) (1998). See also White v. State, 211 Ga. App. 694, 695 (2) (440 SE2d 68) (1994) (when the defendant’s wife voluntarily takes the stand and testifies, it is presumed that she has waived the marital privilege). There is no evidence that Kalpana’s testimony was not voluntary.

Biswas argues that the trial court was required to make an express finding, on the record, that Kalpana had waived her marital privilege; however, his argument is not supported by the law. See Duncan, supra; White, supra. Further, Biswas’ reliance on King v. State, 231 Ga. App. 775 (501 SE2d 19) (1998), is misplaced, as that case involved a defendant’s waiver of his right to counsel and election to proceed pro se and not a witness’ waiver of her marital privilege. Accordingly, we affirm the conviction on this ground.

2. Next, Biswas contends that the court erred in permitting the state to comment on his failure to present medical records to corroborate his claim that his sons beat him. In her closing argument, the prosecutor stated: “But where are those medical records? Where are the medical records that Mr. Biswas told the police should be out there?” Counsel for Biswas objected on the ground that the state was shifting the burden of proof to the defense. The court overruled the objection but reminded the jury that the burden never shifted to Bis-was to prove anything. We find no error.

As a general rule, “[s]o long as it does not comment on the failure of the defendant to testify, the prosecution may properly argue that its evidence of the defendant’s guilt has not been rebutted or contradicted.” (Footnotes omitted.) Peek v. State, 247 Ga. App. 364, 367 (542 SE2d 517) (2000). In Ponder v. State, 268 Ga. 544, 546 (2) (491 SE2d 363) (1997), the Supreme Court held that the prosecutor could comment on a defendant’s “failure ‘to produce certain witnesses when the defendant testifies to the existence of a witness with knowledge of material and relevant facts, and that person does not testify at trial.’ (Cit.)” (Emphasis omitted.) Id., citing Morgan v. State, 267 Ga. 203, 206 (3) (476 SE2d 747) (1996). In order to make such a comment, “the argument must be derived from evidence properly before the factfinder.” Morgan, supra.

, In the case sub judice, Biswas’ statement to the police was admitted into evidence. In that statement, Biswas told Detective Hughes that he had been to the hospital twice as a result of being beaten by his sons. Therefore, the prosecutor’s comment that Biswas failed to present any medical records was derived from evidence properly before the jury. See Duncan v. State, 271 Ga. 16, 17 (2) (515 SE2d 388) (1999). Accordingly, the court did not err in overruling Biswas’ objection.

3. Biswas contends that the court erred in giving the following instruction on impeachment to the jury:

To impeach a witness is to . . . prove that the witness is unworthy of belief. A witness may be impeached by disproving the facts to which the witness testified, or by proof of contradictory statements previously made by the witness as to matters relevant to the witness’ testimony and to the case. If any attempt has been made in this case to impeach any witness by proof of contradictory statements previously made, you must determine from the evidence, first, whether any such statements were made; secondly, whether they were contradictory to any statements the witness made on the witness stand; and, thirdly, whether it is material to the witness’ testimony and to the case.

Biswas argues that the charge was given in error because he did not testify at trial, and, therefore, it could be applied only to his statements to the police.

First, we conclude that Biswas has waived this argument. Initially, the defense submitted a request to charge on impeachment by proof of contradictory statements. The record shows that defense counsel withdrew the proposed instruction during the charge conference, but then she agreed with the state and the court that the charge would be given. “One cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.” (Citations and punctuation omitted.) Williams v. State, 199 Ga. App. 122, 124 (3) (404 SE2d 296) (1991).

Furthermore, any error committed in giving the charge was harmless. Biswas did not testify at trial; thus, there was no testimony to be impeached. Additionally, Biswas admitted in his third statement to the police that he had lied in his first two statements when he said he did not know who killed his sons. During its closing argument, the defense agreed that Biswas’ first two statements to the police were false. Biswas is correct that a prior inconsistent statement does not become impeaching until the witness testifies. Burney v. State, 252 Ga. 25, 26 (3) (310 SE2d 899) (1984). Here, there was simply no testimony to which the jury would have mistakenly applied the charge. Biswas has not alleged any error regarding the admission of the first two statements that he gave to the police.

4. Next, Biswas assigns error to the court’s jury charge on the inference of the intent to kill from the use of a deadly weapon. The court instructed the jury as follows:

You may infer that a person of sound mind and discretion intends to accomplish the natural and probable consequences of a person’s intentional acts, and if a person of sound mind and discretion intentionally and without justification uses a deadly weapon or instrumentality in the manner in which the weapon or instrumentality is ordinarily used and thereby causes the death of a human being, you may infer the intent to kill.

First, the state argues that Biswas failed to preserve this issue for appeal. We disagree. “Contrary to the State’s assertion, the appellant was not required to object to the charge in order to preserve the issue for appeal. In a criminal case, defense counsel is not required to object immediately to the charge but may reserve the right to object on appeal.” Sweat v. State, 173 Ga. App. 441, 442 (326 SE2d 809) (1985). Here, the defense reserved “any and all objections” to the jury charge. Accordingly, the issue is properly before us on appeal.

In Harris v. State, 273 Ga. 608, 610 (2) (543 SE2d 716) (2001), which was decided almost one year after Biswas’ trial, the Supreme Court held that giving the above charge was error and reversed the defendant’s conviction of malice murder. The Court held that the error was harmful, because the evidence of malice was weak.

In this case, the state argues that Harris does not apply because Biswas was convicted of voluntary manslaughter and not malice murder. However, in a recent decision, Cortez v. State, 253 Ga. App. 699, 703 (3) (561 SE2d 142) (2002), we held that Harris applied when a defendant was convicted of voluntary manslaughter as a lesser included offense of malice murder. We reasoned that “intent to kill is an essential element of both murder and voluntary manslaughter.” (Punctuation omitted.) Id., citing Nance v. State, 272 Ga. 217, 221 (3) (526 SE2d 560) (2000). It follows that the trial court in this case erred in giving the charge.

However, the error does not require reversal because there was overwhelming evidence of Biswas’ intent to kill. See Cortez, supra.' Biswas admitted to Detective Hughes that he shot and killed his sons and that he bought a gun the morning of the shootings with the intent to kill them. Therefore, the jury had no need to rely on an inference drawn from the use of a deadly weapon, because they had direct evidence of Biswas’ intent to kill. Accordingly, the erroneous jury charge was harmless.

5. Biswas contends that the court erred in failing to charge the jury on the principle of retreat. We have held that “[c]ase law is clear that where self-defense is the sole defense, and the issue of retreat is raised by the evidence or placed in issue, the defense is entitled to a charge on the principles of retreat as set forth in Glover v. State, 105 Ga. 597 (31 SE 584) (1898).” Jackson v. State, 237 Ga. App. 746 (516 SE2d 792) (1999). Glover held that one who is free from fault

may, without retreating, take human life and be justifiable, if the circumstances are sufficient to excite the fears of a reasonable man that a felonious assault is about to be made upon him, and the slayer, who is free from blame, acts under the influence of such fears, with the bona fide purpose of preventing the felony from being committed upon him.

Id. at 598-599 (2).

In this case, during its closing argument, the prosecution stated that Biswas could have left the house without killing his sons. Bis-was argues that because the state placed the issue of retreat into question, he was entitled to a jury charge on the issue even though he did not request it. See Jackson v. State, supra at 747. We disagree.

In Jackson v. State, supra, we held that “[i]n those circumstances where the omission is clearly harmful as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence, this Court will consider and review the charge even though there was no timely objection in the trial court.” In Jackson v. State, we based our decision on the fact that the evidence against the defendant was not overwhelming. Such is not the case here. Biswas admitted to Detective Hughes that he planned to shoot his sons when he purchased the gun that morning and that he was angry with them. Based on the overwhelming evidence of Biswas’ guilt, we conclude that the omission of the charge was not harmful as a matter of law.

6. Finally, Biswas contends that the trial court erred in denying his motion for new trial because he was denied effective assistance of counsel. He raises two alleged deficiencies in his trial counsel’s performance.

To establish ineffectiveness, a defendant must prove that his trial counsel’s performance was deficient and the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel’s unprofessional deficiencies.

Hardegree v. State, 230 Ga. App. 111, 113 (4) (495 SE2d 347) (1998). “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous.” (Citations and punctuation omitted.) Williams v. State, 234 Ga. App. 191, 193 (2) (506 SE2d 237) (1998). Bearing these principles in mind, we find no merit to Biswas’ claims.

(a) Biswas contends that trial counsel’s performance was deficient because she did not advise or ask the court to advise Kalpana of her marital privilege not to testify against him. However, Biswas has failed to demonstrate that the outcome of the trial would have been different had his counsel advised his wife of the privilege. There is no evidence that Kalpana would have elected not to testily or that the absence of her testimony would have affected the verdict.

Additionally, we find that counsel’s performance was not deficient. When asked why she did not advise the defendant’s wife of her marital privilege, Biswas’ trial counsel testified that she did not feel that it was her place to advise the state’s witnesses of their rights. She further testified that she did not raise the issue of marital privilege to the court because she did not think that it was necessary or appropriate in light of the fact that Kalpana was in India at the time of the shootings. Counsel further explained that her office had spoken with the witness, who told them that she did not know of any allegations of abuse levied by her husband against their sons.

It is well settled that counsel’s decisions on matters of trial tactics and strategy do not amount to ineffective assistance of counsel. Scott v. State, 238 Ga, App. 258, 260 (2) (518 SE2d 468) (1999). See also Aleman v. State, 227 Ga. App. 607, 612 (3) (489 SE2d 867) (1997). We conclude that Biswas failed to demonstrate deficient performance or prejudice in connection with this claim.

(b) Next, Biswas claims that his trial counsel was ineffective for failing to object and move for a mistrial when the state argued that Biswas could have left the house rather than shooting his sons. Bis-was claims that the argument was not supported by the evidence. OCGA § 17-8-75. We disagree.

There was evidence that Biswas elected to go to his bedroom,load the gun, and walk to his sons’ bedroom to shoot them. Thus, the state’s argument that Biswas could have left the house and called the police is a conclusion that could be logically drawn from the evidence and did not violate OCGA § 17-8-75. Failure to make a meritless objection is not evidence of ineffective assistance of counsel. Fults v. State, 274 Ga. 82, 87 (7) (548 SE2d 315) (2001). Accordingly, this claim of ineffective assistance of counsel is without merit.

Decided May 10, 2002

Charles H. Frier, for appellant.

J. Tom Morgan, District Attorney, Elisabeth G. Macnamara, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       Debnath testified that he had been friends with Biswas, but that their relationship became strained after he loaned Biswas money, and it took four years for it to be repaid. Debnath broke off contact with Biswas before Sujoy and Sujit came to Atlanta in 1997.


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A02A0729.
    WORMLEY v. THE STATE.
    (565 SE2d 530)
   Mikell, Judge.

Neil Wormley was indicted for two counts of child molestation and one count of public indecency. After a bench trial, he was convicted of both child molestation counts and acquitted of public indecency. Wormley appeals from the denial of his motion for new trial, challenging only the sufficiency of the evidence. We affirm.

On appeal, we do not reweigh the evidence but view it in a light most favorable to the verdict. Cochran v. State, 248 Ga. App. 705 (548 SE2d 417) (2001). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed most favorably to the verdict, the evidence shows that on July 4, 2000, the victims, two girls aged nine and ten, went swimming together in the lake at Matthews Park in Monroe while their families picnicked nearby. The girls were accompanied by a 13-year-old boy named Jacob, whose mother was a friend of the older girl’s family. The girls testified that a stranger, subsequently identified as Wormley, approached them and asked for their names, addresses, telephone numbers, and whether they had websites. The children testified that they did not answer the man truthfully because they had been told not to talk to strangers.

During the conversation, the older child felt something like a single finger touch the front of her thigh at least five times. The younger girl testified that she felt the palm of a hand swipe her knees three or four times. Wormley’s arms were under the water, so the children could not see his hands. While this was happening, the younger child testified, Wormley would duck under the water, emerge, and say he was sorry.

The children testified that at Jacob’s insistence, they tried to swim away from Wormley, but he followed them. The girls got out of the lake and went over to the older child’s parents, but they did not mention Wormley at that time. Later, they went swimming again. The older girl testified that Wormley came up behind her, and she felt a hand “thumping” the lower part of her spine. The child left the water and told her mother.

The child’s father went running down to the water and saw Wormley floating on his stomach in the shallow end. Wormley was naked, and his swim trunks were lying on shore approximately 30 feet away. The father got the trunks and told Wormley to get dressed, but when Wormley tried to stand up unclothed, the father hit him. Wormley did not resist; he put his trunks on in the water and exited the lake. The older girl’s grandparents, who witnessed this incident, testified that Wormley had an erection.

Wormley testified that he had recently separated from his wife and was living out of his truck. He claimed that he enjoyed engaging in conversation with young girls and that he touched these girls accidentally. He offered no explanation for his erection, however. Moreover, when the prosecutor asked Wormley whether it was conceivable that he touched the girls for an inappropriate purpose, he replied, “I used to think that maybe I had a thing for younger women.” Wormley claimed, however, that he found out after having a daughter that he had “no problems that way.”

“A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a). Wormley argues that the state failed to prove that he engaged in any “immoral or indecent” act within the meaning of the statute because the girls did not know that he was naked or had an erection while he was touching them. We disagree.

The fact that the murky lake water obscured Wormley’s state of sexual arousal is irrelevant. Immoral or indecent acts constituting child molestation refer to acts “generally viewed as morally indelicate or improper or offensive . . . [and] acts which offend against the public’s sense of propriety.” (Citation and punctuation omitted.) Chapman v. State, 170 Ga. App. 779, 780 (1) (318 SE2d 213) (1984). “As explained in Chapman, the Georgia law against child molestation . . . afford[s] protection to a child’s body in those cases where the act or acts are more suggestive of sexually oriented misconduct than simply assaultive in nature.” Smith v. State, 178 Ga. App. 300, 301 (1) (342 SE2d 769) (1986). The testimony in the case at bar supports the conclusion beyond a reasonable doubt that Wormley’s actions, including touching the girls, following them, and asking them personal questions, were “immoral or indecent” within the meaning of OCGA § 16-6-4 (a). In addition, the evidence was more than sufficient for the trier of fact to conclude that Wormley touched the children with the intent to arouse his sexual desires. See, e.g., Arnold v. State, 249 Ga. App. 156,158 (1) (a) (545 SE2d 312) (2001) (“Intent, which is a mental attitude, is commonly detectable only inferentially, and the law accommodates this”).

Decided May 10, 2002.

Joseph S. Rhymer, for appellant.

W Kendall Wynne, Jr., District Attorney, Alan A. Cook, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Miller, Judge.

text:
    A02A0333.
    HUMPHRIES v. THE STATE.
    (565 SE2d 558)
   Miller, Judge.

Willie Humphries appeals from his convictions for rape and aggravated sodomy. On appeal he contends, among other things, that the trial court erred by allowing him to proceed to trial pro se without first establishing that he made a knowing, intelligent, and voluntary waiver of his right to counsel. Since the record does not establish that Humphries was given sufficient information to make a knowing and intelligent waiver, we reverse.

The record reveals that Humphries was originally represented by the Fulton County Public Defender’s Office. Although his four prior attorneys from that office left the case, when asked if he wanted any of those attorneys to represent him, Humphries stated that he only had a problem with one particular attorney from that office representing him. On the day of trial, Humphries was without counsel.

A Fulton County public defender who was in court on the day of the trial explained to the court that he believed that his office had been removed from the case and that Humphries was proceeding pro se. The trial judge, however, believed that the Fulton County Public Defender’s Office was still officially on the case as Humphries’s counsel. While the record contains a 1995 motion to withdraw from the attorney with whom Humphries had a conflict, there was no order on that motion prior to trial.

The public defender then offered to be Humphries’s new counsel. Humphries indicated that it may be difficult for the attorney to represent him because Humphries had lost his original case file. Nevertheless, after meeting with Humphries during a brief recess, the attorney informed the judge that Humphries did not want the attorney to represent him and was ready to try the case on his own. The following exchange then took place between Humphries and the court:

The Court: [The public defender] has come back in and informed the court that you indicated it’s your desire to go forward today, get it over with.
[Humphries]: Yes, sir.
The Court: I understand he has advised you that’s not a good idea. He doesn’t think that’s a good idea.
[Humphries]: Yes, sir.
The Court: You still want to go forward?
[Humphries]: Yes, sir.
The Court: You want to accept whatever assistance he can give you?
[Humphries]: Yes, sir.
The Court: You want to go today?
[Humphries]: Yes, sir.
The Court: We’re going to call the jury in and we will get the jury seated and we will be ready to go. All right. I’ll be in recess until the jury is seated.

The court then allowed the case to proceed to trial with Hum-phries acting pro se and the public defender sitting as standby counsel. Prior to trial the public defender conducted voir dire, but during trial Humphries handled all objections and cross-examination of the State’s witnesses. The only witness that Humphries put on for his defense was himself.

During his closing argument, Humphries was cautioned by the court for proceeding improperly, drew an objection from the State, and stated that he did not understand what he was supposed to do during his closing argument. The court then allowed the public defender to take over and complete the closing argument for Hum-phries. The jury returned guilty verdicts on two of the counts against Humphries.

1. Humphries argues that the trial court erred by allowing him to proceed to trial pro se without first ensuring that he made a knowing, intelligent, and voluntary waiver of his right to counsel. We agree.

In any prosecution that may result in imprisonment, the U. S. Constitution guarantees an accused the right to counsel. Faretta v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975). Although this right to counsel may be waived, such waiver must be made knowingly, intelligently, and voluntarily. See Clarke v. Zant, 247 Ga. 194, 195 (275 SE2d 49) (1981). As this court recently reaffirmed in Middleton v. State, 254 Ga. App. 648 (1) (563 SE2d 543) (2002), although the trial court need not use any “magic words” to determine if a valid waiver was made, the State has the burden of showing from the record that the accused understood (1) the nature of the charges against him, (2) any statutory lesser included offenses, (3) the range of possible punishments for the charges, (4) possible defenses, (5) mitigating circumstances, and (6) any other facts necessary for a broad understanding of the matter. Otherwise, there is no valid waiver. The trial judge must investigate as long and as thoroughly as the circumstances of the case demand to establish a valid waiver. Hamilton v. State, 233 Ga. App. 463, 466 (1) (b) (504 SE2d 236) (1998). If a valid waiver is not indicated by the record and the resulting error may have been harmful, we must reverse the júdgment of the trial court. See Prater v. State, 220 Ga. App. 506, 509 (469 SE2d 780) (1996).

Here, the trial cqurt made no independent inquiry into Hum-phries’s understanding of the charges against him, possible punishments, lesser included offenses, the specific dangers of proceeding pro se, mitigating circumstances, or any possible sentence that he may receive, and the record does not indicate that Humphries was otherwise made aware of these things. Although the public defender informed the court that he advised Humphries that representing himself was a bad idea, there is no indication in the record that Hum-phries was made aware of the specific dangers that he faced in proceeding pro se or of the other matters that would indicate that Hum-phries made a knowing and intelligent waiver. Cf. Middleton, supra, 254 Ga. App. at 649 (1) (despite participation of counsel at trial, invalid waiver where defendant not clearly informed of rights); Raines v. State, 242 Ga. App. 727, 729 (1) (531 SE2d 158) (2000) (invalid waiver where court failed to make independent inquiry into defendant’s understanding of the specific dangers he faced from proceeding pro se). The record does not indicate that Humphries made a knowing and voluntary waiver of his right to counsel, and the trial court therefore erred by allowing Humphries to proceed to trial pro se.

Further, the State has not met its burden of showing that this error was harmless. Indeed, the State does not even argue that any such error would have been harmless. Although Humphries had standby counsel, he did not have any of his original files for the presentation of his case, and his cross-examinations were limited to only a few cursory questions. He had no evidence to respond to the State’s expert or other witnesses other than his own testimony. He was disorganized and confused about how to present his closing argument, and he had to let standby counsel take over and make the argument for him. Humphries did not have the benefit of files or counsel to help him prepare for the case on the day of trial, even though the Fulton County Public Defender’s Office had never been formally excused from the case prior to trial. We cannot say that the error in allowing Humphries to proceed to trial pro se was harmless beyond a reasonable doubt. See Middleton, supra, 254 Ga. App. at 650 (2) (harmful error despite presence of standby counsel and strong evidence of guilt); Prater, supra, 220 Ga. App. at 509 (harmful error where defendant was “confused, disorganized, and ill-equipped for handling the case” and was “inadequately warned beforehand” of dangers of proceeding pro se).

Decided May 13, 2002.

Adeline A. Johnson, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

2. In light of our holding in Division 1, Humphries’s remaining enumeration is moot.

Judgment reversed and case remanded.

Blackburn, C. J., and Johnson, P. J., concur.


author: Ruffin, Judge.

text:
    A02A0497.
    WARBERG et al. v. SAINT LOUIS BREAD COMPANY, INC.
    (565 SE2d 561)
   Ruffin, Judge.

Mary Warberg and her husband sued Saint Louis Bread Company, Inc. (“the Bread Company”) after Mrs. Warberg slipped and fell at the Bread Company’s bakery in Lenox Square Shopping Mall. The trial court awarded the Bread Company summary judgment, and the Warbergs appeal. For reasons that follow, we affirm.

Summary judgment is appropriate when no genuine issue of material fact remains and the movant is entitled to judgment as a matter of law. On appeal from a grant of summary judgment, we apply a de novo standard of review and “view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.”

Viewed in this light, the record shows that Mrs. Warberg and her husband visited Lenox Square on the morning of December 5, 1998. While her husband shopped for a Christmas gift at another mall store, Mrs. Warberg went to the Bread Company to purchase bagels. As she walked to the bakery counter to place her order, she stepped on a plastic “wet floor” sign that was folded over and lying flat on the floor, rather than in its proper upright position. According to Mrs. Warberg, the sign “scooted” out from under her, her foot slid forward with the sign, and she fell on her back. Mrs. Warberg did not see the sign before she stepped on it, but agreed that she could have seen it if she had looked down. She also testified that the floor was dry at the time of her fall.

Lurethia Johnson was working behind the bakery counter taking orders and operating the cash register when Mrs. Warberg fell. Johnson testified that she was extremely busy that day. She did not see Mrs. Warberg slip, but heard another customer mention the fall, looked up, and saw Mrs. Warberg on the floor with the flattened “wet floor” sign next to her. Johnson had not previously seen the “wet floor” sign standing erect or lying flat on the floor in the area where Mrs. Warberg slipped. After the fall, Johnson left her work station, reported the incident to the store’s general manager, Jeff Thomas, and then resumed her duties behind the counter.

According to Thomas, a few minutes before Johnson told him about Mrs. Warberg’s fall, he checked the area around the bakery for debris on the floor and general cleanliness. He did not see any debris, but he noticed a “wet floor” sign standing upright next to a wall. The floor around the sign was dry. Thomas did not remove the sign or ask another employee to remove it, though Bread Company policies required the removal of such signs once the floor dried. He further testified that upright “wet floor” signs often are knocked flat on the floor.

Thoba Zulu was the Bread Company employee responsible for keeping the dining room and public access areas clean on December 5, 1998. His duties included mopping spills, putting out “wet floor” signs, and removing those signs when the floor dried. Zulu recalled that customers occasionally knocked “wet floor” signs down, and he would stand them back up or, if the floor had dried, remove them. On December 5, 1998, he inspected the dining room and public common areas every 15 to 20 minutes to ensure that the floor was clean.

To succeed in their premises liability claim, the Warbergs must prove “(1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Because the Warbergs failed to present evidence that the Bread Company knew about the hazard, we affirm the trial court’s grant of summary judgment.

1. Actual Knowledge. As evidence of the Bread Company’s actual knowledge, the Warbergs point out that Thomas saw the “wet floor” sign standing upright on a dry floor in the bakery area shortly before Mrs. Warberg fell. According to the Warbergs, because Thomas knew that such signs are commonly knocked down, but did not remove the sign, the Bread Company had “actual knowledge ... of the hazardous condition which resulted in Mrs. Warberg’s fall.”

We disagree. The injury-causing hazard in this case was the “wet floor” sign lying flat on the Bread Company’s floor, not an upright caution sign. We reject the Warbergs’ assertion that Thomas’ knowledge of the properly positioned sign gave the Bread Company actual knowledge of this hazard simply because the sign might be knocked over. Furthermore, although a Bread Company employee presumably placed the “wet floor” sign in the bakery, the record contains no evidence that the Bread Company authorized the hazardous condition presented by the collapsed sign. On the contrary, Zulu testified that he fixed any fallen signs that he found on his regular inspections of the Bread Company’s public areas.

The Warbergs have pointed to no evidence that the Bread Company had actual knowledge of the collapsed sign — the hazard at issue — prior to Mrs. Warberg’s fall. Accordingly, the trial court properly found that the Bread Company lacked actual knowledge of the injury-causing hazard.

2. Constructive Knowledge. The record also lacks evidence that the Bread Company had constructive knowledge of the collapsed sign. A claimant can establish constructive knowledge through two methods:

(1) by evidence that an employee of [the proprietor] was in the immediate vicinity and easily could have seen and removed the hazard or (2) that the [hazard] had been on the floor long enough that (a) it would have been discovered if [the proprietor] had exercised reasonable care in inspecting its premises and (b) it would have been removed if [the proprietor] exercised reasonable care in cleaning.

As discussed below, the Warbergs have not raised a question of fact under either method.

(a) The Warbergs argue that two Bread Company employees, Thomas and Johnson, were in the immediate area and could have seen the hazard. According to the Warbergs, Thomas walked through the bakery area, saw the upright “wet floor” sign shortly before Mrs. Warberg fell, knew the floor was dry, and could have removed the sign. Again, however, the upright “wet floor” sign did not cause the injury in this case. The collapsed “wet floor” sign was the hazard, and the Warbergs have presented no evidence that Thomas was in the immediate vicinity of or could have easily seen the flattened sign on which Mrs. Warberg fell.

The Warbergs also claim that Johnson, who was working behind the bakery counter, was in the immediate vicinity of the collapsed sign and could have seen it. Johnson testified that she did not see the sign before Mrs. Warberg slipped and did not witness the fall. We recognize that, from her work station, Johnson saw the flattened sign next to Mrs. Warberg after the fall. Nothing in the record, however, raises a question of fact as to whether she could have easily seen this hazard and taken action to correct it before Mrs. Warberg slipped.

As we have found,

there never has been a rule in this state that liability can be shown by nothing more than the fact that the defendant’s employee was in the immediate area of the hazardous substance. In every case, the rule that states that proposition also requires a finding that the defendant’s employee had an opportunity to discover and remove the hazard, which can only be shown by evidence that the hazard existed for a length of time sufficient for the defendant to discover the hazard and remove it.

Mrs. Warberg does not know how long the “wet floor” sign was flat on the floor before she slipped on it. And the Warbergs admit that shortly before Mrs. Warberg fell, Thomas walked through the area and saw the “wet floor” sign standing erect. Specifically, Thomas testified that just a few minutes prior to learning about the fall, he inspected the area and noticed nothing on the floor, other than the upright sign. The record further shows that, when Mrs. Warberg entered the bakery area, Johnson was taking customer orders and operating the cash register behind the counter. Even Mrs. Warberg agreed that “there [were] a lot of people in and around the Bread Company that morning” and that a line had formed at the bakery counter.

Decided May 13, 2002.

Friedman, Dever & Merlin, Hayes M. Dever, Maureen M. Councill, Alison K. Arce, for appellants.

Carlock, Copeland, Semler & Stair, Wayne D. McGrew III, Stacy M. Blackman, Michael D. Johnson, for appellee.

Under these circumstances, we cannot find that the evidence raises a question of fact as to whether Johnson could have easily seen the collapsed sign and removed it before Mrs. Warberg slipped. At most, the sign was flat for only a few minutes before her fall. Furthermore, the evidence gives no indication that, during this short time period and while serving a line of customers, Johnson was in a position to see and correct the hazard.

(b) The Warbergs also argue that the Bread Company did not employ reasonable inspection procedures on December 5, 1998. Yet, the record shows — and the Warbergs concede — that Thomas inspected the area where Mrs. Warberg fell just a few minutes before she slipped. During that inspection, he did not see a collapsed “wet floor” sign on the floor; he saw only an upright sign. Thus, the Bread Company offered evidence that the hazardous condition was not present shortly before Mrs. Warberg’s fall.

“In cases where a proprietor has shown that an inspection occurred within a brief period prior to an invitee’s fall, we have held that the inspection procedure was adequate as a matter of law.” Accordingly, the Warbergs have not raised a question of fact regarding the reasonableness of the Bread Company’s inspection procedures.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       See Matthews v. The Varsity, 248 Ga. App. 512 (546 SE2d 878) (2001).

       Id.

        Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997).

       The parties apparently agree that Mrs. Warberg slipped on the same sign that Thomas saw during his inspection.

       See id. (plaintiff must show that defendant had knowledge of the hazard).

       See, e.g., Kmart Corp. v. Morris, 251 Ga. App. 753, 757 (2) (555 SE2d 106) (2001) (“[U]nder Georgia law, a proprietor is presumed to have knowledge of a condition it authorizes, such as an automatic door.”).

        Matthews, supra at 513.

       (Punctuation omitted.) Deloach v. Food Lion, 228 Ga. App. 393, 395 (491 SE2d 845) (1997).

       See id.; Drake v. Kroger Co., 213 Ga. App. 72, 74 (1) (443 SE2d 698) (1994); see also Lovins v. Kroger Co., 236 Ga. App. 585, 586 (1) (b) (i) (512 SE2d 2) (1999) (constructive knowledge not imputed where employees not in a position to see the hazard).

        Matthews, supra at 514 (2).

       See id. We again reject the Warbergs’ suggestion that the upright “wet floor” sign was the hazard in this case. Thomas’ failure to remove the erect sign from the dry floor did not give the Bread Company constructive knowledge of the flattened sign or raise a factual question as to the reasonableness of his inspection.


author: Eldridge, Judge.

text:
    A02A1420.
    NEWBY v. THE STATE.
    (565 SE2d 565)
   Eldridge, Judge.

A Clayton County jury found Martin Benjamin Newby guilty of child molestation for an act he committed against his nine-year-old stepdaughter. He appeals and claims solely that “similar transaction” evidence of other sexual overtures Newby made toward the victim during the same time period as the indicted act were introduced without compliance with Uniform Superior Court Rule 31.3. This argument is unavailing. The evidence about which Newby complains demonstrated “prior difficulties” between the victim and Newby. “USCR 31.1 and 31.3 [do] not apply to evidence of‘prior difficulties’ between a defendant and a victim.’

Decided May 13, 2002.

James IL Bradley, for appellant.

Robert E. Keller, District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

        Smith v. State, 270 Ga. 123, 124 (2) (508 SE2d 173) (1998). See also State v. Belt, 269 Ga. 763, 764-765 (505 SE2d 1) (1998) (“Neither Wall v. State, 269 Ga. 506 (2) (500 SE2d 904) (1998), nor Spearman v. State, 267 Ga. 600 (4) (481 SE2d 814) (1997), nor Kettman v. State, 257 Ga. 603 (7) (362 SE2d 342) (1987), can be read to require a trial court to give a limiting charge, in the absence of a request, when evidence of prior difficulties is admitted”).


author: Blackburn, Chief Judge.

text:
    A02A0211.
    MAYS v. ED VOYLES CHRYSLER-PLYMOUTH, INC. et al.
    (565 SE2d 515)
   Blackburn, Chief Judge.

In this breach of contract action, David Mays, proceeding pro se, appeals the trial court’s order granting summary judgment to Ed Voyles Chrysler-Plymouth, Inc., contending that (1) there is a genuine issue of material fact and that summary judgment should not have been granted to Ed Voyles, (2) summary judgment should not have been granted since Mays did not receive any notice of the hearing on the motion, and (3) the trial court erred in failing to continue the court-ordered mediation process. For the reasons set forth below, we affirm.

“A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Cotton v. NationsBank,

Viewing the evidence in this light, the record shows that Mays filed a breach of contract complaint in superior court on April 3, 2001, based on his request to Ed Voyles to order a PT Cruiser. Ed Voyles answered the complaint on April 17, 2001, and simultaneously served, a request for admissions and a motion for a more definite statement. Mays filed a response to the motion for a more definite statement on May 1, 2001, but never made a response to the request for admissions. The record reflects that the trial court sent a notice referring the case to the alternative dispute resolution program on May 15, 2001, and a mediation conference was scheduled for June 29, 2001. There is no further information in the record concerning the mediation process.

A motion for summary judgment with supporting materials was filed by Ed Voyles and served on Mays on June 8, 2001. By letter dated July 13, 2001, Ed Voyles requested that the trial court grant its motion for summary judgment. The record shows no response by Mays to the motion for summary judgment. Following a hearing which Mays did not attend, the trial court granted Ed Voyles’ motion for summary judgment on August 7, 2001.

1. “Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).” Cotton, supra at 607. Because of his failure to respond to the request for admissions, Mays cannot show under any set of facts that a contract existed between him and any of the defendants, and, therefore, there is no basis for a breach of contract claim.

A matter admitted in response to requests for admission under OCGA § 9-11-36 is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. . . . Such a solemn admission in judicio is conclusive as a matter of law on the matter stated and cannot be contradicted by other evidence unless it is withdrawn or amended on formal motion.

(Punctuation omitted.) McCoy v. West Bldg. Materials.

Mays has made no effort to withdraw his admissions. The Supreme Court has made the consequences of the failure to withdraw admissions clear. “The language in OCGA § 9-11-36 (a) is clear, unambiguous, and unequivocal and means just what it says. One must comply strictly and literally with the terms of the statute upon the peril of having his response construed to be an admission.” (Punctuation omitted.) G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors.

Decided May 7, 2002

Reconsideration denied May 14, 2002.

David Mays, pro se.

When, as here, a litigant relied below upon the legal effect of failure to respond to requests for admission and the nonresponding party did not move to withdraw admissions or avail itself of any of the variety of responses available under OCGA § 9-11-36 and chose not to seek the liberal remedies afforded to parties under the statute to avoid the consequences of a failure to respond, we hold that the subject matter of (the) requests for admission stood admitted.

(Citations omitted.) Solis v. Lamb

Mays has admitted that: (1) no verbal or written contract existed between him and any of the defendants, (2) his check for the deposit had insufficient funds to cover it and the deposit was returned to him, and (3) he had not accepted any other offers made by the defendants. Under these facts, there is no genuine issue of material fact, and therefore, the trial court did not err in granting summary judgment to Ed Voyles.

2. Mays contends that the trial court erred by failing to follow its own rules and continue pre-trial mediation. Mays provides no support for his contentions. There are no citations to the record, rules, or statutory authority. Court of Appeals Rule 27 (c) (2) and (3) provide that an enumeration of error that is not supported by citation of authority and specific reference to the record or transcript will not be considered by this court. “It is well established that the burden is on the party alleging error to show it affirmatively by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, the appellate court must assume that the judgment below was correct and affirm.” (Punctuation omitted.) Tahamtan v. Sawnee Elec. Membership Corp.

Mays’ assertion that summary judgment should be reversed because he did not receive notice of the motion hearing fails for the same reason. Factual assertions contained in a party’s brief are not evidence unless supported by the record. Hippie v. Simpson Paper Co. Mays provides no evidence in the record to prove his assertion in his brief that he did not receive notice of the motion hearing.

Judgment affirmed.

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

Downey & Cleveland, Joseph C. Parker, Robert C. Harrison, for appellees.

        Cotton v. NationsBank, 249 Ga. App. 606, 607 (548 SE2d 40) (2001).

        McCoy v. West Bldg. Materials, 232 Ga. App. 620, 621 (502 SE2d 559) (1998).

        G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 268 Ga. 327, 331 (2) (486 SE2d 810) (1997).

        Solis v. Lamb, 244 Ga. App. 8, 9 (1) (534 SE2d 582) (2000).

        Tahamtan v. Sawnee Elec. Membership Corp., 228 Ga. App. 485 (491 SE2d 918) (1997).

        Hipple v. Simpson Paper Co., 234 Ga. App. 516, 519 (5) (507 SE2d 156) (1998).


author: Johnson, Presiding Judge.

text:
    A02A0317.
    SHELLEY v. THE STATE.
    (565 SE2d 567)
   Johnson, Presiding Judge.

Kareem Shelley was convicted of armed robbery of a Waffle House restaurant in Gwinnett County. He appeals, arguing that there is not sufficient evidence to support the conviction and that the trial court erred in overruling his challenge to the state’s use of its peremptory strikes during jury selection. The arguments are without merit, so we affirm Shelley’s conviction.

1. Shelley complains that there is not enough evidence to support his conviction because the only witness to identify him as a perpetrator of the armed robbery was an accomplice. While an accused may not be convicted on the uncorroborated testimony of an accomplice, only slight evidence from an extraneous source identifying the accused as a participant in the crime is needed to corroborate the accomplice’s testimony and support a guilty verdict. In the instant case, there is sufficient evidence corroborating the accomplice’s testimony.

The accomplice, Antwane Calloway, testified that he, Shelley, Shelley’s brother, Courtney Shelley, and Detalus Enmon committed a string of armed robberies. The crime spree began shortly before midnight on November 18, 1996, as the foursome, armed with guns, cruised around the Atlanta area in a stolen Cadillac.

They stopped at a Texaco gas station and convenience store in Fulton County. All of them went inside the store, pulled out their guns, took money from the clerk, and fled. The foursome then drove to the Waffle House in Gwinnett County.

Shelley, Calloway, and Enmon entered the Waffle House, while Shelley’s brother remained outside in the getaway car. Inside, the three robbers pulled out their guns and demanded money from restaurant employees Glen Ritzman and Donna Jenkins. Ritzman took the drawer of money out of the cash register and gave it to the armed men, who then fled.

The men next drove to DeKalb County, where they robbed another Waffle House. Shortly after that robbery, they were riding on an interstate highway when the police began following them. They got off the highway, pulled into a neighborhood, stopped the car, jumped out of it, and ran from the police. A short time later, Callo-way and Enmon were caught, but Shelley and his brother eluded the police. Inside the Cadillac, police officers found three guns, ammunition, two cash register drawers, money, and Shelley’s cellular telephone.

Numerous witnesses other than Calloway testified for the state, including victims of the Gwinnett Waffle House robbery. The two employees, Ritzman and Jenkins, as well as a customer, Jorge Trana, could not identify Shelley, but they confirmed that three men entered the restaurant and used guns to force Ritzman to hand over a drawer full of money from the cash register.

The state also introduced evidence that although Ritzman was unable to identify Shelley during the Gwinnett trial, he had previously identified Shelley as one of the Gwinnett Waffle House armed robbers. That identification occurred when Shelley and his brother were tried for the armed robbery of the DeKalb Waffle House. During the DeKalb trial, Ritzman was called as a witness, and he positively identified Shelley as one of the perpetrators of the Gwinnett robbery.

Shelley was convicted of the DeKalb armed robbery, and a certified copy of that conviction was introduced during the instant Gwin-nett trial. In addition, the state played a videotape from a security camera showing the Texaco armed robbery. And Calloway identified the perpetrators depicted on the tape, including Shelley.

This evidence provides more than the slight evidence needed to corroborate the testimony of Shelley’s accomplice. Having reviewed all the evidence in the light most favorable to the verdict, we conclude that the jury was authorized to find Shelley guilty beyond a reasonable doubt of armed robbery.

2. Shelley contends that the trial court’s overruling of his Batson challenge to the state’s peremptory strikes during jury selection was improper because the court failed to follow the three-step test required for such a challenge. Contrary to Shelley’s contention, the trial court properly followed the test.

In evaluating challenges to peremptory strikes, the United States Supreme Court has established this three-part test: (1) the opponent of a peremptory strike must make out a prima facie case of racial discrimination; (2) the burden of production then shifts to the proponent of the strike to give a race-neutral explanation for the strike; and (3) if a race-neutral explanation is given, the court must then decide if the opponent of the strike has proven purposeful racial discrimination.

Decided May 14, 2002.

Clark & Towne, Wystan B. Getz, for appellant.

Daniel J. Porter, District Attorney, Dawn H. Taylor, Assistant District Attorney, for appellee.

In the instant case, Shelley argued that the state struck two female jurors because they are African-American. The trial judge found that Shelley had made out a prima facie case of racial discrimination and required the state prosecutor to provide race-neutral explanations for the two strikes. The prosecutor explained that she struck one of the women because she is a union steward and defends employees who are in trouble with the employer. The prosecutor said that she struck the other woman because she is an attorney, she has defended a person accused of a drug crime, and she has been a party to an employment discrimination lawsuit.

After the state gave its race-neutral explanations, the judge gave Shelley an opportunity to show racial discrimination. Shelley’s lawyer challenged the reasons given by the state, cited case law, and argued that the strikes were based on race. Further discussion between the court and the lawyers ensued, and the judge finally asked Shelley’s lawyer if she had any further challenges. She had none, and the court then ruled that the strikes were proper.

We note that Shelley has not contested the substance of the court’s ruling, so we do not reach that issue. Instead, his only argument is that the court failed to follow the applicable three-step process. We disagree and find that the record clearly establishes that the court properly employed the three-step analysis in evaluating Shelley’s peremptory strike challenges.

Judgment affirmed.

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

        House v. State, 237 Ga. App. 504-505 (1) (515 SE2d 652) (1999).

       See Goss v. State, 247 Ga. App. 520, 521-522 (544 SE2d 206) (2001).

       See Telfair v. State, 234 Ga. App. 444, 445 (507 SE2d 195) (1998).

        Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

        Williams v. State, 236 Ga. App. 190 (511 SE2d 561) (1999).

       See Curry v. State, 238 Ga. App. 511, 515 (2) (a) (519 SE2d 269) (1999).


author: JOHNSON, Presiding Judge.

text:
    A02A0611.
    CAYLOR v. THE STATE.
    (566 SE2d 33)
   JOHNSON, Presiding Judge.

A jury found Larry Caylor guilty of aggravated assault and stalking. He was found not guilty of aggravated stalking. Caylor contends his trial counsel was ineffective for failing to object in three instances. We find no error and affirm Caylor’s convictions.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that in the spring of 1998, Caylor and his wife separated. Throughout that summer, Caylor continuously threatened his wife. Late in the night of September 21, 1998, Caylor drove up a long driveway to his mother-in-law’s house, where his wife and two children were staying. He shined the lights of his car in the window of the house and then left. Soon thereafter, Caylor called the house and threatened his wife, saying there was no way she could run from him. He said that “if he had had a pistol he would have shot every one of us that night.” This conversation was overheard by the victim’s mother, who was listening in on another line. Caylor’s wife called 911 and reported the incident to the sheriff’s department.

The next morning, Caylor’s wife drove their children to school. When she pulled onto the street in front of the school, she saw Caylor waiting in his car. As she pulled into the school drop-off area, Caylor followed and parked his car behind her. Caylor then got out of his car and approached his wife. When his wife got out of her van, Caylor pulled a knife out and grabbed her around the waist, holding the knife to her stomach. He threatened to “cut [her] guts out” if she did not get into the van. The victim resisted and was able to break free from Caylor. Caylor then fled the scene. This act was done in the presence of a number of witnesses.

To establish a claim of ineffective assistance of counsel, Caylor must show that trial counsel’s performance fell below a reasonable standard of conduct and that there was a reasonable probability that the outcome of the case would have been different but for the deficient performance of counsel. At the outset, we note that trial counsel secured an acquittal of the aggravated stalking charge. This circumstance strongly supports the conclusion that the assistance actually rendered by Caylor’s trial counsel fell within that broad range of reasonably effective assistance which members of the bar in good standing are presumed to render. Moreover, the trial court’s finding that Caylor received effective assistance of counsel must be upheld on appeal unless that finding is clearly erroneous.

1. In his first enumeration of error, Caylor contends his trial counsel was ineffective for failing to object to an argument made by the state’s counsel in closing argument. The prosecutor stated, “if this man is left free, you’re going to read about another case. He’s not going to listen to any judge’s orders.” Caylor correctly points out that it is improper for a prosecutor to argue during the guilt-innocence phase of a criminal trial that if found not guilty, a defendant poses a threat of future dangerousness. However, in this case, defense counsel’s decision not to object to the prosecutor’s comments did not constitute ineffective assistance of counsel.

At the hearing on the motion for new trial, Caylor’s trial counsel testified that he did not specifically recall thinking that the argument was a “future dangerousness” argument, but that he would not have objected on that ground in any event because it was a short statement and objecting would have drawn greater attention to the statement. According to trial counsel, while a curative instruction would have been given had he objected, “the jury would have been left with the impression that this is pretty important otherwise he wouldn’t have objected to it, and for that reason, or those reasons I choose not to object in opening or closing unless it’s really, really egregious.” We find no reversible error. “Trial strategy and tactics do not equate with ineffective assistance of counsel.”

Moreover, any error in failing to object to the prosecutor’s comment was harmless because the overwhelming evidence supporting the verdict renders it highly unlikely that this portion of the argument contributed to the verdict. The evidence in this case included eyewitness testimony from individuals at the scene on the morning that Caylor attacked his wife, corroboration from the victim’s mother as to the phone call made to the victim the previous night, and Caylor’s admission that he had a knife and did grab his wife.

2. Caylor next alleges that trial counsel was ineffective for not objecting to remarks made by the prosecutor during his opening statement. These remarks asked the jurors to put themselves in the shoes of the victims. Again, trial counsel testified during the hearing on Caylor’s motion for new trial that he did not object to the remarks because they were a short portion of the opening statement and objecting would focus undue attention on that particular aspect of the prosecutor’s opening statement. Even though trial counsel felt the statements were improper, he did not think it was necessary to object because the comments were not a grievous offense. We find no reversible error.

Here, trial counsel’s decision did not result from inadequate preparation, but from choices of trial strategy and tactics, which do not equate with ineffective assistance of counsel. Moreover, even if trial counsel’s performance was deficient on this ground, given the overwhelming evidence against Caylor, we conclude that it is highly unlikely that the comments contributed to the jury’s guilty verdict.

3. Caylor argues that trial counsel’s failure to object or request curative instructions to responses made by a state’s witness on cross-examination constituted ineffective assistance of counsel. We disagree. The record shows that the following dialogue occurred as Caylor’s trial attorney cross-examined a police officer:

Q: And you attempted ... to get [Caylor] to make a statement?
A: I attempted to get him to make a statement, yes sir. I read a Miranda form to him and explained his rights, had him sign the form. At that time Mr. Caylor invoked his rights to legal counsel, so there was no interview.

Trial counsel then asked:

Q: And as far as you knew at that point Mr. Caylor did not have an attorney representing him?
A: As far as I knew. I mean, we do the standard procedure where we go over an extensive form explaining his Miranda rights to be sure he understands his rights, have him sign the form, and at that point he invoked his constitutional right to an attorney, so at that point we did not speak with him any further which is standard.

According to trial counsel, he did not object because he did not want to draw unnecessary attention to the comments. Trial counsel further testified that he

made a decision not to deal with that particular aspect of [the witness’] testimony because I believe we made the decision that Mr. Caylor was in fact going to testify at that trial, and we would explain that, hopefully, through Mr. Caylor’s testimony, and that it is in fact a Constitutional Right not to incriminate oneself or to speak with the police.

First, trial counsel’s actions in choosing not to object or request a curative instruction to avoid calling attention to Caylor’s assertion of his right to remain silent were strategic in nature and do not equate with ineffective assistance of counsel. Second, in order to warrant reversal of a conviction, the evidence of a defendant’s choice to remain silent must point directly at the substance of the defendant’s defense or otherwise substantially prejudice the defendant in the eyes of the jury. This was simply not the case here. In the present case, Caylor was merely shown to have exercised the rights of which he had just been informed, and there was nothing linking this conduct to any inference of guilt. Thus, any constitutional error was harmless, and we find no error in the trial court’s conclusion that Caylor did not establish ineffective assistance of counsel in this regard.

Decided May 14, 2002.

Edgar A. Callaway, Jr., for appellant.

W. Kendall Wynne, Jr., District Attorney, for appellee.

Moreover, even if trial counsel performed deficiently in failing to object to the testimony, we conclude that, in all likelihood, the failure to object did not contribute to the proceeding’s outcome. In light of the overwhelming evidence presented in the case, no prejudice resulted from trial counsel’s failure to raise a Fifth Amendment objection.

Judgment affirmed.

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

       See Milner v. State, 271 Ga. 578, 579 (2) (522 SE2d 654) (1999).

       See Green v. State, 218 Ga. App. 648, 651 (3) (a) (463 SE2d 133) (1995).

        Rutledge v. State, 237 Ga. App. 390, 391-392 (2) (515 SE2d 1) (1999).

        Mason v. State, 274 Ga. 79, 80 (2) (c) (548 SE2d 298) (2001).

       (Citation and punctuation omitted.) Hines v. State, 248 Ga. App. 752, 756 (3) (548 SE2d 642) (2001).

        Wyatt v. State, 267 Ga. 860, 865 (2) (b) (485 SE2d 470) (1997); Nickerson v. State, 248 Ga. App. 829, 832 (2) (a) (545 SE2d 587) (2001).

        Hines, supra.

       See Green v. State, 249 Ga. App. 546, 554 (4) (547 SE2d 569) (2001).

        Mitchell v. State, 242 Ga. App. 177, 182 (4) (b) (529 SE2d 169) (2000).

        Mitchell v. State, 223 Ga. App. 319, 321 (6) (477 SE2d 612) (1996).

       See id.

       See Wallace v. State, 272 Ga. 501, 504 (3) (a) (530 SE2d 721) (2000).


author: Phipps, Judge.

text:
    A02A0788.
    In re ESTATE OF DORROH.
    (565 SE2d 565)
   Phipps, Judge.

Carol Willis sought certain relief from the Probate Court of Bar-tow County. The probate court determined that she lacked standing to pursue her claims. Willis, proceeding pro se, appealed to the Bar-tow County Superior Court, and it affirmed the ruling of the probate court and dismissed her appeal. Willis now appeals the superior court’s order. Because we lack the evidence necessary to review the superior court’s ruling, we affirm.

Willis’s notice of appeal expressly directs the clerk to “omit everything from the record on appeal.” A transcript of a hearing before the superior court was forwarded, but it contains only argument by Willis and counsel for appellees. Thus, the evidence upon which the superior court relied in this case has been omitted from the record on appeal.

Decided May 14, 2002.

Carol R. Willis, pro se.

Akin & Tate, William M. Akin, Smith, Shaw & Maddox, Virginia B. Harman, for appellee.

The burden is on the party alleging error to show it by the record. Where the evidence necessary for determination of the issues on appeal is omitted from the record, we must assume that the judgment below was correct and affirm.

Willis challenges the trial court’s order, which states that

[t]he purported assignment which was the sole basis of Ms. Willis’[s] alleged standing before Judge Crawford is legally insufficient to create any standing on her part to pursue the relief requested in her petition. Further the purported disclaimer attached to her amended petition is not only untimely, but in and of itself is also legally insufficient to create standing on the part of Ms. Willis to seek the relief requested in her petition.

Without the assignment, petition or disclaimer we cannot determine if the trial court’s ruling was correct.

Willis has attached several documents from the proceedings below to her briefs filed in this court, but we cannot consider them because a brief or an attachment thereto cannot be used in lieu of the record for adding evidence to the record. The clerk of the trial court has the duty to certify and transmit the record to this court. Transmittal by a party or attorney is prohibited. Moreover, “[d]ocuments attached to an appellate brief, which have not been certified by the clerk of the trial court as a part of the appellate record and forwarded to this Court, will not be considered on appeal.” Thus, we cannot consider documents attached to appellate briefs unless they have been forwarded to this court by the trial court, not by a party or attorney, and made a part of the record on appeal.

Judgment affirmed.

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

        Bennett v. Executive Benefits, 210 Ga. App. 429 (436 SE2d 544) (1993).

        Johnson v. Bruno’s, Inc., 219 Ga. App. 164, 165 (2) (464 SE2d 259) (1995).

       Court of Appeals Rule 17.

       Id.

       Court of Appeals Rule 23 (f).


text:
    A02A0759.
    SWAN v. THE STATE.
    (565 SE2d 488)
   Miller, Judge.

Based on evidence police obtained in a search of her residence, Virginia Louise Swan was convicted of possessing methamphetamine with intent to distribute. Citing three reasons, Swan argues that the court erred in denying her motion to suppress the evidence obtained in the search: (1) police did not show probable cause to justify the issuance of the search warrant; (2) the warrant failed to describe sufficiently the place to be searched; and (3) police executed the warrant without giving notice of their authority and purpose. We hold that (1) the statements of the named informant who spoke against his penal interest showed probable cause; (2) the description of the property’s location was sufficient; and (3) the police properly executed the warrant by knocking, announcing their authority, and entering the unlocked door after receiving no response. Accordingly, we affirm.

When reviewing a trial court’s order on a motion to suppress, we construe the evidence in favor of the trial court’s ruling and uphold its judgment if there is any evidence to support it. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). So construed, the evidence showed that a person arrested for a drug offense told police that two days earlier he had purchased methamphetamine from “Jeannie” (Swan’s nickname), and that he had been making such purchases from her for the past two years. He led police to the house where the transactions had taken place, indicating that he had seen methamphetamine at the house during the recent purchase transaction. He also stated that Swan drove a white Chevrolet Camaro, which police observed at the house. Citing this information and identifying the informant, police applied for a search warrant, describing the location of the house by naming the county and state and by giving specific street directions and distances to the location. The house’s color and curtilage were also described. A warrant issued.

Two days later police executed the warrant. Police surrounded the house, in which a party was going on, and two officers approached the front door, knocked, and announced “Sheriff’s Department.” The door had no handle and was unlocked. After waiting five seconds and receiving no response, police opened the door and entered, announcing “Sheriff’s Office, Search Warrant.” The search produced firearms, drug sale-related paraphernalia, and large quantities of methamphetamine. Swan admitted to police at the site that she owned the home and possessed the methamphetamine.

Swan was indicted for possessing methamphetamine with intent to distribute and for possessing a firearm during the commission of certain crimes. Swan moved to suppress the evidence obtained during the search, which motion the court denied after an evidentiary hearing. Acquitting her of the firearm charge, the jury found her guilty of the drug possession charge. She appeals, citing as error the denial of her motion to suppress.

1. Swan claims that police did not show probable cause to support the warrant where the affiant relied on the word of a named informant who had reason to lie in order to receive lighter treatment for his pending drug offense. Georgia law is to the contrary: “When a named informant makes a declaration against penal interest and based on personal observation, that in itself provides a substantial basis for the magistrate to credit that statement.” (Punctuation and footnote omitted; emphasis in original.) Tomlinson v. State, 242 Ga. App. 117, 119 (527 SE2d 626) (2000); see State v. Wesson, 237 Ga. App. 789, 791 (516 SE2d 826) (1999); Sosebee v. State, 227 Ga. App. 21, 23-24 (488 SE2d 102) (1997). Swan’s citation to Robertson v. State, 236 Ga. App. 68 (510 SE2d 914) (1999), is inapplicable, as the informant in that case was not named to the magistrate. See Wesson, supra, 237 Ga. App. at 791 (naming of informant to magistrate is key distinction).

Here the informant, who was named to the magistrate, reported to police that he personally observed and purchased methamphetamine at the house in question, which clearly was against his penal interest. As credible evidence supported a finding of probable cause, we uphold the trial court’s ruling in favor of the warrant.

2. Citing Vaughn v. State, 141 Ga. App. 453, 454 (1) (233 SE2d 848) (1977), Swan alleges that the warrant was defective for failing to identify the county and state when describing the location of the house to be searched. Unlike the affidavit in Vaughn, however, the affidavit in support of the warrant here stated that the described property was in a specified county (Cherokee County). The description of the property’s location by giving specific directions and distances along identified highways and intersections in the county, and by giving a physical description of the house, allowed police to ascertain with reasonable certainty the identity of the place intended. See, e.g., Landers v. State, 183 Ga. App. 691-692 (1) (359 SE2d 748) (1987); Miller v. State, 155 Ga. App. 399, 401 (I) (B) (270 SE2d 822) (1980).

3. Swan contends that the manner in which police executed the warrant invalidated the search. Specifically, Swan argues that police allowed only five seconds between the knock/announcement and entering the home, which interval was too short to allow the occupants to respond. The warrant did not have a “no knock” provision. Compare Jones v. State, 127 Ga. App. 137 (1) (193 SE2d 38) (1972).

“A law enforcement officer entering an occupied residence for the purpose of executing a search warrant is required to give or attempt to give verbal notice of his authority and purpose. See OCGA § 17-5-27; [cits.].” State v. Smith, 219 Ga. App. 905, 906 (467 SE2d 221) (1996). Here police knocked and announced their authority, and upon receiving no response after five seconds, they nonforcibly entered the unlocked residence, repeating their authority and specifying they were executing a search warrant. We will not disturb the trial court’s judgment that the five-second interval was sufficient, particularly in light of the “judicially recognized [fact] that firearms are tools of the drug trade. [Cit.]” Felix v. State, 241 Ga. App. 323, 326 (4) (526 SE2d 637) (1999) (five- to ten-second interval in drug raid sufficient). Indeed, as in Felix, guns were discovered in the residence, with police here having to subdue one of the occupants who was reaching for a gun. Swan even admitted to attempts to hide the firearms and drugs once she heard the knocking. The five-second interval between the knock/announcement and the nonviolent opening of the unlocked door (after no one inside responded) was not manifestly unreasonable. Id.; compare Smith, supra, 219 Ga. App. at 906 (police did not knock nor announce their authority or purpose when approaching and entering house; search invalid); Barclay v. State, 142 Ga. App. 657 (236 SE2d 901) (1977) (using pass key, police entered motel room without knocking or giving notice of their authority or purpose; search invalid).

Decided April 29, 2002

Reconsideration denied May 15, 2002

Charles G. Harbin, Jr., for appellant.

Garry T. Moss, District Attorney, Scott T. Poole, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, C. J, and Johnson, P. J., concur.


text:
    A02A0056, A02A0057.
    A02A0058.
    EPPS v. HIN (two cases). BRENT v. HIN.
    (565 SE2d 577)
   Blackburn, Chief Judge.

Larry Epps, Valerie Epps, and Mary Brent were involved in a motor vehicle accident that occurred when Sourm Hin’s pickup truck rear-ended their vehicle. More than two years after that collision, Larry Epps, Valerie Epps, and Brent filed separate suits against Hin. Upon deciding that all of the claims were untimely, the trial court awarded summary judgment to Hin in each suit. In separate appeals, the Eppses and Brent contend that their claims for loss of consortium and medical expenses were not time-barred. We agree that the consortium claims were not untimely and reverse only as to those claims.

On April 28, 1998, a pickup truck being operated by Hin rear-ended Mary Brent’s vehicle as it was traveling southbound on 1-85. At the time of the collision, Larry Epps and his wife, Valerie Epps, were both passengers in Brent’s van. More than two years later, on July 24, 2000, Larry Epps, Valerie Epps, and Mary Brent filed separate lawsuits against Hin. In his suit, Epps sought to recover for loss of consortium and for the medical expenses that he purportedly incurred as a result of the accident for his own treatment and that of his spouse. In her suit, Valerie Epps sought to recover her own medical expenses, but later amended her complaint to add claims for loss of consortium and to recover “the medical expenses incurred.for treatment of her said spouse, Larry Epps.” Brent initially sought only to recover her own medical expenses but subsequently added claims for loss of consortium and for recovery of her husband’s medical expenses.

The trial court awarded summary judgment to Hin as to all claims in the three cases. The trial court decided that the claims were barred by the applicable statute of limitation and expressly found that the loss of consortium claims stemmed from a “right of recovery which is time barred as a matter of law.” These appeals followed.

When a question of law is at issue, as here, we owe no deference to the trial court’s ruling and apply the “plain legal error” standard of review. Suarez v. Halbert With that standard in mind, we address each appeal separately.

Case No. A02A0056

In this appeal, Larry Epps contends that the trial court erred in ruling that his claim for loss of consortium and his claim to recover his wife’s medical expenses were both time-barred.

As to the claim for loss of consortium, the law requires that:

[a]ctions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year after the right of action accrues, and except for actions for injuries to the person involving loss of consortium, which shall be brought within four years after the right of action accrues.

OCGA § 9-3-33. The running of the limitation period on a personal injury claim does not bar a derivative claim for loss of consortium. Heis v. Young Since the applicable statute of limitation for a loss of consortium claim is four years and that claim was properly filed and served within that limitation period, the trial court erroneously granted summary judgment to Hin. Mears v. Gulfstream Aerospace Corp.

Decided May 15, 2002.

James A. Elkins, Jr., for appellants.

As to the self-described “property” claim for medical expenses, Epps contends that such claim is not time-barred. Citing OCGA § 9-3-25, the limitation period for actions brought on open accounts, Epps argues that since a medical provider has four years to bring an action to recover medical fees, “it would only be fair to permit the individual who must pay the bill to bring the action for the same within the same period of time to recover the amount due.”

In Brent v. Hin, a companion case, this Court resolved this precise issue adversely to Epps, holding that “medical expenses constitute damage flowing from personal injury,” and are thus subject to the two-year limitation period for personal injury claims set forth in OCGA § 9-3-33. To hold otherwise would enable litigants to circumvent the limitation period for personal injuries by declaring that the damages being' sought constituted “property” claims. See Brent, supra.

Case No. A02A0057

In this appeal, Valerie Epps contends that the trial court erred in ruling that her claim for loss of consortium was time-barred. We agree and reverse. Whitten v. Richards.

Case No. A02A0058

In this appeal, Mary Brent asserts that her cause of action for loss of consortium was not time-barred. We agree and reverse. Whit-ten, supra.

Judgment affirmed in part and reversed in part in Case No.

A02A0056. Judgments reversed in Case Nos. A02A0057 and A02A0058.

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

McLaughlin, Hendon, Miller & Croy, James C. McLaughlin, Jr., for appellee.

        Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).

        Heis v. Young, 226 Ga. App. 739, 741 (6) (487 SE2d 403) (1997).

        Mears v. Gulfstream Aerospace Corp., 225 Ga. App. 636, 639 (2) (484 SE2d 659) (1997).

        Brent v. Hin, 254 Ga. App. 77, 79 (561 SE2d 212) (2002). This is yet another suit arising from the same collision but brought by Harold Brent against Hin.

        Whitten v. Richards, 240 Ga. App. 719, 722 (2) (523 SE2d 906) (1999).


text:
    A02A0313.
    GRIFFIN et al. v. CARSON et al.
    (566 SE2d 36)
   Miller, Judge.

This action for medical malpractice was filed more than two years after the injury giving rise to the action and thus fell outside the applicable statute of limitation found in OCGA § 9-3-71 (a). Having filed an earlier action within the statute of limitation (subsequently dismissed), plaintiffs sought the protection of OCGA § 9-2-61 (a) on the ground that they refiled within six months of the dismissal. The trial court ruled against plaintiffs, finding that their failure to attach an OCGA § 9-11-9.1 affidavit to the original complaint rendered that action invalid under OCGA § 9-11-9.1 (e) as a basis for a renewal action. We agree and affirm.

The complaint alleges that Dr. John Carson negligently performed cataract surgery on James Griffin on September 2, 1998, which tore and caused a retinal detachment of Griffin’s eye. On September 1, 2000, Griffin and his wife sued Carson and Carson’s employer (a professional corporation) for medical malpractice and invoked the provisions of OCGA § 9-11-9.1 (b) on the ground that the filing was within ten days of the running of the statute of limitation and that an expert affidavit showing professional negligence could not be timely prepared. This entitled plaintiffs to 45 days to supplement the pleadings with the required affidavit. OCGA § 9-11-9.1 (b).

Plaintiffs did not supplement the pleadings with the affidavit but instead voluntarily dismissed their complaint without prejudice on September 25, 12 days before any responsive pleading was due. They filed the present action on March 20, 2001, asserting the same malpractice tort claim against the same defendants and also adding a breach of contract claim (against the corporate defendant) arising out of the same facts. Simultaneous with the filing of their answers, both defendants moved to dismiss the complaint on the grounds that the statute of limitation had run and that the renewal statute did not apply where the earlier action lacked the requisite affidavit. The trial court agreed and dismissed the complaint. Plaintiffs appeal.

1. Plaintiffs’ appellate brief contains not a single citation to the record. This flies in the face of Court of Appeals Rule 27 (c) (3) (i), which requires that “[e]ach enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.” On this ground alone, plaintiffs’ appeal fails. Nevertheless, plaintiffs’ appeal fails on the merits also.

2. The present action was undisputedly filed outside the applicable two-year statute of limitation. OCGA § 9-3-71 (a) provides that an action for medical malpractice must be brought within two years after the date of injury. As per plaintiffs’ allegations, the injury here occurred on the date of the allegedly negligent surgery — September 2, 1998. The present action was filed on March 20, 2001, more than two years later. Whether couched in terms of a tort or breach of contract action, the two-year statute of limitation applies to malpractice actions for injuries arising out of medical services. Knight v. Sturm, 212 Ga. App. 391, 392 (2) (442 SE2d 255) (1994); see OCGA § 9-3-70 (1).

Apparently seeking to avoid the statute, plaintiffs on the day of the motion to dismiss hearing amended their action to attempt to state a claim for simple negligence for failure to schedule follow-up appointments. Medical aftercare, however, involves the evaluation of the medical condition of the particular patient and thus the application of professional knowledge; therefore, this claim is also a medical malpractice claim. Herndon v. Ajayi, 242 Ga. App. 193, 194 (2) (532 SE2d 108) (2000).

3. Plaintiffs argue, however, that the present action is a renewal within six months of the previous medical malpractice action that was filed within the statute of limitation but later dismissed. Thus, plaintiffs seek the protection of OCGA § 9-2-61 (a) to preserve their action.

Plaintiffs failed to attach to their previous complaint (even by supplement) the affidavit required by OCGA § 9-11-9.1 (a). Therefore, under OCGA § 9-11-9.1 (e), that action is precluded from serving as a basis for a renewal action.

If a plaintiff fails to file an affidavit as required by [OCGA § 9-11-9.1] and the defendant raises the failure to file such an affidavit by motion to dismiss filed contemporaneously with its initial responsive pleading, such complaint shall not be subject to the renewal provisions of Code Section 9-2-61 after the expiration of the applicable period of limitation, unless a court determines that the plaintiff had the requisite affidavit within the time required by this Code section and the failure to file the affidavit was the result of a mistake.

OCGA § 9-11-9.1 (e).

The present action falls within the language of OCGA § 9-11-9.1 (e). Plaintiffs failed to attach the required affidavit to the filing of their previous complaint and obtained the 45-day grace period allowed by OCGA § 9-11-9.1 (b) to supplement that complaint with the affidavit. They dismissed that complaint without having filed any affidavit and before any responsive pleadings were due, thereby preventing defendants from moving to dismiss (for failure to file the affidavit) in that previous action. The requisite affidavit was not executed until February 21, 2001, four months after the affidavit was to have been filed in the previous action and six months after the statute of limitation had expired, and therefore no excusable circumstance was shown. Grier-Baxter v. Sibley, 247 Ga. App. 560, 561 (2) (545 SE2d 5) (2001); Lyberger v. Robinson, 207 Ga. App. 845, 846 (429 SE2d 324) (1993). Since plaintiffs failed to attach the required expert affidavit to the previous medical malpractice action, and since defendants raised the failure to file such affidavit in a motion to dismiss filed contemporaneously with their initial responsive pleadings, plaintiffs’ complaint was not subject to the renewal provisions of OCGA § 9-2-61 and therefore cannot serve as a basis for a renewal action, either against Carson or his employer. Grier-Baxter, supra, 247 Ga. App. at 561-562 (2); see Trucano v. Rosenberg, 215 Ga. App. 153,154 (450 SE2d 216) (1994); Lyberger, supra, 207 Ga. App. at 846.

Decided May 15, 2002.

Mills & Chasteen, Ben B. Mills, Jr., for appellants.

Hall, Booth, Smith & Slover, Anthony A. Rowell, W. Brent Hyde, Martin, Snow, Grant & Napier, Blair K. Cleveland, Richard A. Epps, Jr., for appellees.

The trial court did not err in dismissing plaintiffs’ complaint.

Judgment affirmed.

Blackburn, C. J., and Johnson, P. J., concur.