author: MILLER, Presiding Judge.

text:
    A17A0449, A17A0450.
    LANDRY v. WALSH; and vice versa.
    (801 SE2d 553)
   MILLER, Presiding Judge.

In these appeals, Janine Landry and her ex-husband, Daniel Walsh, seek review of several rulings by the trial court arising out of the parties’ custody dispute. In Case No. A17A0449, Landry challenges (i) the court’s ruling excluding the testimony of a treating psychiatrist during the custody hearing; and (ii) the second of two court orders awarding attorney fees to Walsh. In Case No. A17A0450, Walsh seeks review of the first of the two court orders awarding him attorney fees. For the reasons that follow, we affirm the trial court’s evidentiary ruling and reverse both of the attorney fee awards.

The parties’ 2011 divorce decree granted joint legal custody of their two minor children to both parties and primary physical custody to Landry. A contemporaneous settlement agreement incorporated into the divorce decree gave Landry ultimate decision-making authority with respect to the children.

In March 2014, Walsh filed a custody modification petition and motion for contempt, asking the court, in relevant part, to investigate the children’s condition and modify custody and visitation as warranted. Over the next year and a half, both parties — as well as the children’s psychiatrist — vigorously contested numerous issues, primarily concerning the children’s medical and psychiatric care. In October 2014, while these disputes were ongoing, Walsh asked to be awarded primary physical custody of the children.

Following a two-day bench trial, the trial court granted Walsh sole legal custody of his children, directed Landry’s visitation to be professionally supervised, and ordered her to pay Walsh child support and $4,000 in attorney fees under OCGA § 19-6-2 (the “First Fee Award”). Walsh timely moved for a new trial on the issue of attorney fees and also separately moved for attorney fees under OCGA § 9-15-14. Following a hearing on the motion for a new trial and fee request, the trial court awarded Walsh $50,000 in attorney fees under OCGA § 9-15-14 (the “Second Fee Award”). These appeals followed.

Case No. A17A0449

1. Landry contends that the trial court erred when it ruled that her children’s psychiatrist’s joint communications with her and the children are privileged and barred the psychiatrist from testifying as an expert at trial on that basis. We discern no reversible error.

Under OCGA § 24-7-702, a witness with specialized knowledge may be qualified to provide expert opinion testimony. “A trial court retains broad discretion in determining whether to admit or exclude evidence, and an appellate court generally will not interfere with that discretion absent abuse.” (Citation and punctuation omitted.) Thornton v. Hemphill, 300 Ga. App. 647, 650 (2) (686 SE2d 263) (2009); see Giannotti v. Beleza Hair Salon, 296 Ga. App. 636, 639 (1) (a) (675 SE2d 544) (2009) (applying same standard to expert testimony). To establish reversible error, a party seeking review of a trial court’s ruling excluding testimony must show how the testimony would have benefitted her case. See Thornton, supra, 300 Ga. App. at 650 (2); Tarleton v. Griffin Fed. Sav. Bank, 202 Ga. App. 454, 455 (2) (b) (415 SE2d 4) (1992) (“An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful.”). To make this showing, a party must proffer the excluded testimony to the trial court. See Thornton, supra, 300 Ga. App. at 650 (2). Absent such a proffer, we have no basis in the record to disturb the trial court’s ruling. See id.; accord Clemens v. State, 318 Ga. App. 16, 22 (4) (733 SE2d 67) (2012) (holding that the appellant failed to show how the trial court’s exclusion of a witness’s testimony harmed his case because, pretermitting any error in the evidentiary ruling, the appellant had not made a proffer of the proposed testimony to the trial court).

Before trial, Walsh moved to exclude the testimony of Stuart Davis, M.D., a psychiatrist who had treated the parties’ children, on the ground that Dr. Davis’s communications with the children and expert opinions regarding them are protected by the psychiatrist-patient privilege. The court heard argument from both parties on Walsh’s motion during the custody hearing. When asked why Dr. Davis’s testimony was important, Landry responded merely that “he has extremely pertinent information with regard to [Landry] ’s ability to parent and their psychological —” at which point the court asked another question. Following additional argument, the court granted Walsh’s motion to exclude Dr. Davis’s testimony

Later in the hearing, Landry asked the court to reconsider its ruling excluding Dr. Davis’s testimony. She asserted, without elaboration, that Dr. Davis could “speak directly to [the children’s] emotional state and what would potentially be in their best interest” because he had treated them for approximately two years. The court sustained its earlier ruling. At no point during the parties’ argument did Landry seek to proffer the substance of Dr. Davis’s proposed testimony on any topic, including the children’s mental state or Landry’s ability to parent.

Similarly, on appeal, Landry identifies no relevant facts or opinions about which Dr. Davis would have testified. Nor does she explain how such testimony would have benefitted her case. Although Landry briefly lists a handful of categories of purportedly non-privileged information Dr. Davis could have provided — such as unidentified information provided by third parties, the dates of treatment, and prescribed medications — she has identified neither the substance of any such testimony nor how such testimony would have benefitted her case.

Pretermitting the correctness of the trial court’s ruling — upon which we express no opinion — absent a proffer of Dr. Davis’s proposed testimony, Landry cannot establish prejudice resulting therefrom. See Clemens, supra, 318 Ga. App. at 22 (4); Thornton, supra, 300 Ga. App. at 650 (2). Consequently, she has not met her burden of showing reversible error in this regard, and we affirm the trial court’s ruling on this issue. See Tolbert v. Toole, 296 Ga. 357, 363 (3) (767 SE2d 24) (2014) (“It is [the appellant’s burden, as the party challenging the ruling below, to affirmatively show error from the record on appeal.”).

2. Landry challenges the trial court’s Second Fee Award (purportedly made under OCGA § 9-15-14), contending that no evidence of legal fees incurred by Walsh supported the award and that the trial court insufficiently identified the factual and legal bases therefor. We agree.

Under OCGA § 9-15-14 (a), a trial court shall award reasonable and necessary attorney fees where a party has asserted a position that lacked any justiciable issue of law or fact so that it could not reasonably be believed that a court would accept it. Under OCGA § 9-15-14 (b), the trial court may award attorney fees where a party has brought an action or raised a defense that lacked substantial justification, brought an action for delay or harassment, or unnecessarily expanded the proceedings by other improper conduct. We review OCGA § 9-15-14 (a) attorney fee awards under an “any evidence” standard, while OCGA § 9-15-14 (b) awards are reviewed for abuse of discretion. See Doster v. Bates, 266 Ga. App. 194, 196-197 (1), (2) (596 SE2d 699) (2004).

[W]hen a trial court exercises its discretion in assessing attorney fees and costs of litigation under OCGA § 9-15-14, it is incumbent upon the court to specify the conduct upon which the award is made. Indeed, a judgment devoid of such findings must be vacated and the case must be remanded for reconsideration. Furthermore, an order awarding attorney fees pursuant to this statute must specifically state whether the award is made under OCGA § 9-15-14 (a) or (b).

(Citations and punctuation omitted; emphasis in original.) Woods v. Hall, 315 Ga. App. 93, 97 (2) (726 SE2d 596) (2012).

Here, the trial court’s order awarding Walsh $50,000 in OCGA § 9-15-14 attorney fees neither contains any findings identifying the conduct underlying the award nor identifies the statutory subsection or subsections upon which the award is premised. The trial court’s oral ruling during the hearing on Walsh’s motion for a new trial — in which the trial court stated, without elaboration, that the award was “[b]ased on what we’ve heard here today and what’s gone on before” — likewise sheds no light on these issues.

Ordinarily, we would vacate the award and remand the case for the trial court to reconsider these issues in light of the evidence presented. See, e.g., Trotman v. Velociteach Project Mgmt., 311 Ga. App. 208, 214 (6) (715 SE2d 449) (2011) (concluding that the trial court did not abuse its discretion in deciding to award attorney fees under OCGA § 9-15-14 (b) but vacating and remanding for factfind-ing as to how the court had apportioned its lump sum award of $30,000 to fees generated based on sanctionable behavior). Here, however, Walsh presented no evidence identifying any specific fees incurred as a result of any specific sanctionable conduct. Although Walsh’s counsel asserted that he had incurred a total of $115,718.72 in attorney fees in this action, counsel introduced no evidence supporting either that initial calculation or counsel’s apparently implied assertion that some unidentified portion of that amount was attributable to sanctionable conduct. Walsh’s failure to meet his burden requires us to reverse the Second Fee Award. See Holloway v. Holloway, 288 Ga. 147, 150 (2) (702 SE2d 132) (2010) (reversing attorney fee award, which was unsupported by “any cogent evidence of the work performed by [the requesting party]’s counsel and the nature thereof”); Hughes v. Great Southern Midway, 265 Ga. 94, 95-96 (1) (454 SE2d 130) (1995) (reversing attorney fee award where no evidence was presented as to the number of hours spent on the case, the hourly fee charged, or the reasonableness thereof).

Case No. A17A0450

3. Walsh challenges the First Fee Award (purportedly made underOCGA § 19-6-2)contendingthat(i)hepresentednoevidenceof the actual fees incurred or the reasonableness of those fees; (ii) as a result, the trial court made no findings on these issues; and (iii) the award was not authorized by the statute upon which the trial court relied. He maintains, however, that a fee award is warranted here under various other statutes and asks us to remand for an eviden-tiary hearing on this basis. We agree that the trial court erred in awarding OCGA § 19-6-2 attorney fees but further conclude that Walsh waived a fee request under any other statute.

In divorce and alimony cases, a trial court may award attorney fees under OCGA § 19-6-2 (a) (1), after “considering] the financial circumstances of both parties.” Thus, “findings of fact regarding the relative financial circumstances of each party” are prerequisites to an award under OCGA § 19-6-2. Amoakuh v. Issaka, 299 Ga. 132, 134(3) (786 SE2d 678) (2016). We review a trial court’s decision whether to award OCGA § 19-6-2 attorney fees for abuse of discretion. See Hoard v. Beveridge, 298 Ga. 728, 730 (2) (783 SE2d 629) (2016).

Here, pretermitting whether an OCGA § 19-6-2 fee award was statutorily available in this case, the evidence did not support such an award, as Walsh presented no evidence as to the parties’ relative financial circumstances for purposes of such an award. Consequently, the trial court abused its discretion by awarding fees under this statute. See OCGA § 19-6-2 (a) (1); Amoakuh, supra, 299 Ga. at 134 (3). To the extent that Walsh may have been entitled to an attorney fee award under any other statute, he waived any such claim by failing to bring such a request to the trial court’s attention. See Employees Retirement System of Ga. v. Baughman, 241 Ga. 339, 341 (3) (245 SE2d 282) (1978) (a claim abandoned before the trial court presents nothing for this Court to review); 9766, LLC v. Dwarf House, 331 Ga. App. 287, 291 (4) (b) (771 SE2d 1) (2015) (“This court is for the correction of errors, and where the trial court has not ruled on an issue, we will not address it.”) (citation and punctuation omitted). In fact, Walsh invited the very error of which he complains when his own counsel drafted the order awarding OCGA § 19-6-2 attorney fees. See Hargett v. Dickey, 304 Ga. App. 387, 389 (2) (696 SE2d 335) (2010) (“In the absence of fraud or mistake, a party cannot complain of a judgment, order, or ruling that his own conduct produced or aided in causing.”) (citations and punctuation omitted). Consequently, we reverse the trial court’s OCGA § 19-6-2 fee award.

Decided May 25, 2017

Reconsideration denied July 7, 2017

Kupferman & Golden, Gregory D. Golden; Shapiro Law Group, Eric L. Shapiro, for Landry

Crouch Law, Delia T. Crouch, for Walsh.

Judgment affirmed in part and reversed in part in Case No. Al 7A0449. Judgment reversed in Case No. Al 7A0450.

Doyle, C. J., and Reese, J., concur.

       Landry’s challenge to the trial court’s custody ruling is limited to the exclusion of the psychiatrist’s testimony — she does not challenge any other ruling upon which the change in custody was based and thus has abandoned any other claims she may have had as to any such rulings. For purposes of appellate jurisdiction, we note that Landry’s challenge to the eviden-tiary ruling necessarily is a challenge to the ensuing substantive custody ruling because, on the facts of this case, the evidentiary ruling is relevant only to the extent that it was a basis for the custody ruling. We therefore have jurisdiction over Landry’s appeal under OCGA § 5-6-34 (a) (11) (”[a]ll judgments or orders in child custody cases awarding ... or modifying child custody” are directly appealable) and over Walsh’s cross-appeal under OCGA § 5-6-34 (d) (“Where an appeal is taken under any provision of [OCGA § 5-6-34 (a)], all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone . . . .”). Compare Voyles v. Voyles, 301 Ga. 44, 47 (799 SE2d 160) (2017) (holdingthat an appeal from the denial of a motion to set aside a prior order in a child custody proceeding on the ground of inadequate notice of a hearing must be initiated by filing an application for discretionary review under OCGA § 5-6-35 (a) (2) because the issue raised on appeal did not call into question the trial court’s custody ruling).

       As discussed below, Landry has not met her burden of showing how the exclusion of Dr. Davis’s testimony harmed her case. Given our conclusion in this regard, we express no opinion on whether either Landry or Walsh was entitled to waive any privilege that may have protected their children’s discussions with Dr. Davis.

       Even if we were to construe Walsh’s counsel’s assertion regarding the total fees incurred by Walsh as evidence supporting his fee request, see Cross v. Cook, 147 Ga. App. 695, 696 (3) (250 SE2d 28) (1978) (“Attorneys are officers of the court and their statements in their place, if not objected to, serve the same function as evidence”), simply identifying the total attorney fees incurred in an action falls far short of the evidence required to support an OCGA § 9-15-14 fee award. See Duncan v. Cropsey, 210 Ga. App. 814, 815-816 (2) (437 SE2d 787) (1993) (reversing an OCGA § 9-15-14 fee award where counsel did not identify the number of hours expended on the case or attributable to sanctionable conduct and did not state that the requested amount of fees was reasonable).

       A party generally may not appeal a ruling that benefitted him or her. See, e.g., Smith v. Stacey, 281 Ga. 601, 602 (1) (642 SE2d 28) (2007). Here, however, it is readily apparent from the record that Walsh’s challenges to the First Fee Award necessarily entail an implicit claim that the fee award was inadequate.

       The trial court’s findings that Walsh earned $6,666 per month and that Landry was unemployed — made in the context of addressing child support — certainly do not support a fee award in favor of Walsh based on “the relative financial circumstances of each party.” See Amoakuh, supra, 299 Ga. at 134 (3); see also Cason v. Cason, 281 Ga. 296, 299-300 (3) (637 SE2d 716) (2006) (The purpose of an OCGA § 19-6-2 fee award is to ensure effective representation of both parties in cases arising out of a divorce.).


source: Caselaw Access Project

author: DOYLE, Chief Judge.

license: Public Domain

text:
    A17A0032.
    MARTIN v. CITY OF COLLEGE PARK.
    (802 SE2d 292)
   DOYLE, Chief Judge.

In a suit alleging violations of the Georgia Open Meetings Act (“OMA”), Chawanda Martin appeals from the grant of summary judgment to the City of College Park (“City”). Martin contends that the trial court erred by ruling that her suit was not filed in accordance with the time limits prescribed in the Act at OCGA § 50-14-1 (b) (2) and by granting summary judgment because there was evidence that the City Council made interim employment appointments without a public vote. For the reasons that follow, we affirm in part, reverse in part, and remand the case.

On appeal from the grant of summary judgment, we construe the evidence most favorably towards the nonmov-ing party, who is given the benefit of all reasonable doubts and possible inferences. The party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact. Our review of the grant or denial of a motion for summary judgment is de novo.

So viewed, the record shows that Martin was hired by the City as a firefighter in September 2008. In 2011, Martin was disciplined for certain alleged misconduct during her job, and on July 30, 2012, she was terminated by then-interim Fire Chief Wade Elmore for additional alleged misconduct occurring in 2012. Pursuant to the City’s grievance procedure, Martin appealed her termination to the interim City Manager, Richard Chess, who affirmed the decision. Despite having the opportunity to do so, Martin did not appeal the City Manager’s decision to the Mayor or the City Council.

Instead, Martin filed an open records request with the City, seeking information outlining the process by which certain interim officials were appointed by the City Martin’s request focused on the appointments of interim Fire Chief Elmore, interim City Manager Chess, interim City Manager Hugh Austin, and interim Human Resources Director Christa Gilbert. Martin ultimately was able to obtain meeting minutes showing that these interim appointments apparently occurred, but they were not done pursuant to a vote by the City Council at an open meeting.

On October 2, 2012, Martin sued the City, Chess, Elmore, and City Councilmen Ambrose Clay, Joe Carn, Tracey Wyatt, and Charles Phillips, Sr. The complaint alleged that the interim appointments were made in violation of the OMA, so the interim officials lacked authority to take adverse employment action against Martin. Martin sought reinstatement, expungement of her personnel record, attorney fees and expenses of litigation, a writ of quo warranto, and the imposition of civil penalties against the City Council members. The defendants answered and, following discovery, moved for summary judgment. The trial court granted the motion on the grounds that Martin failed to file her suit within the time prescribed by the OMA, and that Martin had failed to adduce any evidence of unlawful votes. Martin now appeals.

1. First we must determine if Martin’s claims are time-barred. Based on the undisputed evidence, all of Martin’s claims are time-barred except as to interim City Manager Chess.

We begin with the relevant statutory language. OCGA § 50-14-1 (b) provides, in part:

(1) Except as otherwise provided by law, all meetings shall be open to the public. All votes at any meeting shall be taken in public after due notice of the meeting and compliance with the posting and agenda requirements of this chapter.
(2) Any resolution, rule, regulation, ordinance, or other official action of an agency adopted, taken, or made at a meeting which is not open to the public as required by this chapter shall not be binding. Any action contesting a resolution, rule, regulation, ordinance, or other formal action of an agency based on an alleged violation of this provision shall be commenced within 90 days of the date such contested action was taken or, if the meeting was held in a manner not permitted by law, within 90 days from the date the party alleging the violation knew or should have known about the alleged violation so long as such date is not more than six months after the date the contested action was taken.

OCGA § 50-14-3 (b) provides that certain meetings may be held in executive session, i.e., “lawfully closed to the public.” Those meetings include:

Meetings when discussing or deliberating upon the appointment, employment, compensation, [or] hiring, ... of a public officer or employee or interviewing applicants for the position of the executive head of an agency . . . The vote on any matter covered by this paragraph shall be taken in public and minutes of the meeting as provided in this chapter shall be made available. Meetings by an agency to discuss or take action on the filling of a vacancy in the membership of the agency itself shall at all times be open to the public as provided in this chapter[.]

Thus, except when discussing filling a vacancy on the City Council itself, discussion and deliberation regarding hiring decisions may be done in a closed executive session, but voting on hiring decisions must be done in a public meeting.

With respect to interim officials Austin, Gilbert, and Elmore, the record is undisputed that each was appointed more than 90 days prior to the date Martin filed her suit, October 4, 2012 — the last of these appointments (interim Fire Chief Elmore) occurring in June 2012 at the latest. Martin was required to file suit within 90 days of these appointments and did not do so. Therefore, as to these interim appointments, Martin’s complaint was untimely

Martin argues that she is entitled to 90 days from the date she knew or should have known of the unlawful appointments, but according to the statutory language in OCGA § 50-14-1 (b) (2), the “knew or should have known” phrase only applies “if the meeting was held in a manner not permitted by law.” The executive session meetings in this case were not unlawful because they were limited to personnel discussions, and there is no evidence that any voting took place. Therefore, in the absence of any evidence of unlawful meetings, Martin was required to file suit within 90 days of the contested interim appointments themselves.

With respect to interim City Manager Chess, the record contains the testimony of Mayor Longino that Chess “came on in August of — 16th of 2012,” “that [Austin] gave his notice and was gone at the end of July, and [Chess] came on in the first of August.” According to this account, Chess’s appointment was fewer than 90 days prior to the October 4, 2012 date of Martin’s action, and the trial court erred by concluding as a matter of law that it was time-barred under OCGA § 50-14-1 (b).

2. Having determined that Martin’s claim against Chess is not time-barred, we must decide whether the trial court erred by holding that Martin did not meet her burden on summary judgment because she failed to put forth evidence of any unlawful votes. By the trial court’s logic, all official action taken without a meeting or vote is outside the purview of the OMA. This would frustrate entirely the purpose of the OMA, and we decline to interpret OCGA § 50-14-1 (b) in such a way. Because there is undisputed evidence that the City failed to hold any public votes on Chess’s interim position, it was error for the trial court to grant summary judgment on this record.

As set forth above, the unambiguous language of the statute requires a public vote on any matter covered by the paragraph, which includes meetings when voting on the appointment or employment of a public officer or employee. The statute does not differentiate or exempt “interim” appointments from its reach.

Here, the evidence was that no vote was ever taken. Mayor Longino testified that the mayor made the challenged appointments according to “consensus,” and no votes were ever held to fill these interim appointments. Thus, the trial court erred by holding that Martin could not demonstrate a violation of the OMA.

3. In light of our ruling in Divisions 1 and 2, Martin has demonstrated a legal and evidentiary basis to survive summary judgment as to an OMA violation with respect to the appointment of interim City Manager Chess. The superior courts have jurisdiction to enforce compliance with the OMA, including the power to grant injunctive or other equitable relief, award attorney fees, and impose a civil penalty not to exceed $1,000 for the first violation. Accordingly, we remand for a determination of the appropriateness, if any, of a civil penalty as authorized under OCGA § 50-14-6 and/or any other relief as pleaded by Martin.

Decided June 21, 2017

Reconsideration denied July 10, 2017

Balch Law Group, Christopher D. Batch; Orr, Brown & Billips, Matthew C. Billips, for appellant.

Fincher, Denmark & Minnifield, Steven M. Fincher, Winston A. Denmark, Emilia C. Walker, Michael J. Williams, for appellee.

4. To the extent not otherwise addressed, Martin’s remaining enumerations are moot.

Judgment affirmed in part and reversed in part, and case remanded with direction.

Miller, P. J., and Reese, J., concur.

       OCGA § 50-14-1 et seq.

       (Punctuation omitted.) Nguyen v. Southwestern Emergency Physicians, 298 Ga. 75, 82 (3) (779 SE2d 334) (2015), quoting Johnson v. Omondi, 294 Ga. 74, 75 (751 SE2d 288) (2013).

       As an initial matter, we note that neither party fully complied with Court of Appeals Rule 25 (c) (2) (iii), which requires that references to the record be indicated by specific record citations. When record citations have been provided, in many instances the citations are to a deposition generally or do not accurately correspond to the appellate record. Further, certain factual assertions in the City’s brief are supported with reference to global citations to the answer or the trial court’s order. “[FJactual assertions in briefs not supported by evidence of record cannot be considered on appellate review[,] and . . . pleadings unsupported by evidence [in the record] do not raise factual issues that prevent granting of a motion for summary judgment.” (Citation omitted.) Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65-66 (2) (a) (397 SE2d 576) (1990). It is not the role of the Court of Appeals to cull the record on behalf of a party, and a lack of proper citations greatly hinders our consideration of the issues on appeal. Nevertheless, we have endeavored to review the merits of Martin’s appeal.

       According to the City’s grievance procedure, the City Manager’s decision on a grievance is final, subject only to an appeal to the Mayor and the City Council. Further, the “[fjailure, at any time during the grievance procedure, to submit a grievance to the next step within the time limit, acts as an acceptance of the decision at that step.” Martin’s failure to exhaust her administrative remedies may preclude her ability to obtain the employment-related relief she seeks, but we need not decide that issue as it will be before the trial court in the first instance on remand.

       This Court initially transferred Martin’s appeal to the Supreme Court of Georgia, which transferred the case back to this Court, noting that Martin had abandoned her writ of quo warranto claim that the trial court had dismissed as moot, appealing only on legal (not equitable) grounds under the OMA.

       OCGA § 50-14-1 (a) (2).

       (Emphasis supplied.) OCGA § 50-14-3 (b) (2).

       See id.

       Ninety days prior to October 4, 2012, stretches back to July 6, 2012.

       (Emphasis supplied.)

       It is unclear why the dates of employment are at issue in this case, as a simple perusal of one’s pay stub should indicate the first day of employment. Further, Chess averred that he served as the interim City Manager in August 2012, though he did not refer to a specific start date.

       See Mtg. Alliance Corp. v. Pickens County, 294 Ga. 212, 218 (2) (751 SE2d 51) (2013) (“The law requires the commission to hold meetings that are open to the public whenever any ‘official business, policy, or public matter’ of the county is ‘formulated, presented, discussed, or voted upon’. . . .”).

        See Kilgore v. R. W. Page Corp., 261 Ga. 410, 411 (3) (405 SE2d 655) (1991) (“[T]he Open Meetings Act must be broadly construed to effect its purposes of protecting the public and individuals from closed-door meetings.”).

       OCGA § 50-14-3 (b) (2).

       OCGA §§ 50-14-5; 50-14-6.


text:
    A17A0264.
    YANCEY v. THE STATE.
    (802 SE2d 702)
   DOYLE, Chief Judge.

After a grand jury returned an indictment for second-degree burglary against him, William Todd Yancey filed an application for interlocutory appeal from the trial court’s order denying his motion to quash the indictment. This Court granted Yancey’s application, and he appeals, arguing in six separate enumerations of error that the trial court erroneously denied his statutory right to notice and to appear before the grand jury pursuant to OCGA § 45-11-4 (f), (g) (2014) and OCGA § 17-7-52 (a) (2001), and the trial court erred by allowing into evidence a copy of the videotape of the purported entry into the office. For the reasons that follow, we reverse.

We review the trial court’s interpretations of law and application of the law to the facts de novo and its findings of fact for clear error.

The record reveals that Yancey worked for a number of years under Sheriff Ladson O’Connor as an investigator primarily responsible for property crimes at the Montgomery County Sheriff’s Department. On the night of June 15, 2015, Sheriff O’Connor died as a result of a wreck during a high-speed chase of Jim Lowery, whom Yancey had been investigating. Lowery fled after the crash, and a manhunt quickly ensued involving numerous police officers from multiple jurisdictions. That same night, Sheriff O’Connor’s individual office within the Sheriff’s Department was opened, and a safe and possibly other items were removed by individuals who worked at the Department.

On February 1, 2016, the district attorney presented the facts of the case to the grand jury, which returned an indictment against Yancey, charging that he individually and as a party to a crime “without authority and with intent to commit a theft therein, enter [ed] the office of Sheriff Ladson O’Connor . . . .” It is undisputed that Yancey was not served with notice of the grand jury and did not appear before it under OCGA §§ 17-7-52 and 45-11-4. Thereafter, Yancey moved to quash the indictment, arguing that the State violated his rights to notice and an opportunity to appear and present a statement to the grand jury. Yancey did not testify at the hearing; however, his attorney argued that Yancey had entered O’Connor’s office that night through the already-open door to retrieve Lowery’s case file, which he thought might contain information helpful in ascertaining Lowery’s whereabouts.

At the hearing on the motion to quash, Jerry Sikes, O’Connor’s administrative assistant, testified that O’Connor maintained an office in the Sheriff’s Department, which office he locked when absent because some items kept in the office had disappeared prior to the events in question. Sikes also testified that Yancey frequently used the office during work hours. Sikes testified that he was second in the chain of command and was responsible for scheduling but was on vacation out of state when O’Connor died. Sikes testified that Yancey and the other investigator (Matthew Mallory) shared on-call duties for nights and weekends when they were not working — their normal shift being 9:00 a.m. to 5:00 p.m. Sikes testified that Yancey sustained a gunshot wound about two weeks prior to O’Connor’s death, but he continued to work full-time after the injury.

Matthew Mallory, a deputy with Montgomery County, was called into work the night of O’Connor’s death. Mallory first arrived at the Sheriff’s Department where he stayed for about 45 minutes, and as he was leaving, he met Yancey in the parking lot. Mallory then went to the crash scene, and finally arrived at the mobile command station at 10:30 p.m., where he saw Yancey around 11:45 p.m. or 12:00 a.m. Mallory testified that Yancey was involved in the discussions about Lowery at the mobile command station, and although he could not remember whether Yancey was there all night, Mallory recalled seeing him the following afternoon. Mallory testified that Yancey was working during the weeks between his injury and O’Connor’s death.

Justin Fountain, the other investigator on the Montgomery County force, testified that Yancey worked during the time between his injury and O’Connor’s death. Fountain testified that on the day of O’Connor’s death, Yancey had been at the Sheriff’s Department with a case file on Lowery, which file he had left in O’Connor’s office. Fountain spent the evening with O’Connor, and when he returned home for the night, he saw O’Connor’s cruiser engaged in a high-speed chase and radioed into dispatch and directly to O’Connor for details, later going into the department and then to the command station. Fountain could not remember if he saw Yancey with the file at the command site, but he recalled that Yancey was assisting other agencies with the investigation. A week later, Fountain testified that he found O’Connor’s office safe in the back seat of his personal truck, and he later opened it at Sikes’s direction, finding about $350 in cash in the safe.

Lauren Sherling, an assistant district attorney in the circuit serving Montgomery County, was present at the mobile command station on the night of O’Connor’s death. She saw Yancey at the command station and discussed suspect Lowery with Yancey, but she did not recall seeing him with any files or papers. Sherling was unable to testify regarding a timeline for the evening.

Officer Cody Clifton, who was working as a road sergeant for Montgomery County at the time of O’Connor’s death, testified that Yancey arrived at the mobile command station and assisted with the investigation of Lowery, giving possible locations for searches based on his previous work on Lowery’s case.

Ronnie Bivens, who became chief deputy in Montgomery County after O’Connor’s death, testified that he was with Yancey when he sustained his injury and testified that while serving a search warrant on a house and seizing some firearms, one of the weapons discharged, injuring Yancey’s shoulder. Bivens testified that after reviewing the personnel files at the department, he discovered a return-to-work slip for Yancey, clearing him to return to work and to drive, which slip was dated July 29, 2015. Bivens could not testify whether Yancey worked in some capacity between his injury and July 29 because Bivens was not employed at Montgomery County at that time.

Ricky Dykes testified that he drove his girlfriend, Kim Young (a dispatcher for the Department), to the Sheriff’s Department on the night of O’Connor’s death. He was familiar with the officers at the department and said many were around and some were in Sheriff O’Connor’s office while he was there. Dykes testified that Young had an application on her phone that received a video feed from the department security cameras, and he used his phone to record the feed showing the individuals leaving O’Connor’s office because Young did not know how to save the video feed. He provided a copy to the Georgia Bureau of Investigation (“GBI”), and he did not know if the original footage existed. The video showed the open back door to the Sheriff’s office with various men and one woman coming out, one of whom was carrying a safe; some time later, other individuals left, one of whom had a sling around one arm and was carrying papers. None of the individuals appeared to be concealing their identities or their presence in the office.

After O’Connor’s death, the GBI was asked to investigate the break-in at his office. After reviewing the security footage, GBI investigators interviewed Yancey Yancey told them that he had been called into work the night of O’Connor’s death, that he was under the influence of pain medication and probably should not have been working, that he remembered hearing people inside O’Connor’s office when he arrived at the Sheriff’s Department, that he did not remember why he went inside the office, that he did not remember removing any papers from within, and that he did not know what the papers were.

An audio recording of Yancey’s interview with the GBI was admitted and played at the hearing. The court also allowed the State to admit a copy of the surveillance video taken by Dykes of Young’s phone.

Following the hearing, the trial court entered an order denying Yancey’s motion to quash, finding that OCGA § 17-7-52 did not protect Yancey because there was no evidence that he had been acting in the performance of his official duties during the alleged burglary

1. Yancey argues that the trial court erred by holding that OCGA §§ 17-7-52 (a) and 45-11-4 (g) did not apply. We agree.

At the time of the incident and indictment in 2015, OCGA § 17-7-52 (a) provided:

Before an indictment against a present or former peace officer charging the officer with a crime which is alleged to have occurred while he or she was in the performance of his or her duties is returned by a grand jury, the officer shall be notified of the contemplated action by the district attorney of the county wherein the grand jury shall convene and the officer shall be afforded the rights provided in Code Section 45-11-4.

In turn, OCGA § 45-11-4 stated in relevant part in 2015:

(f) Any indictment brought pursuant to subsection (b) of this Code section shall specially set forth the merits of the complaint against the accused public officer. A copy of the proposed bill of indictment shall be served on the accused public officer at least 15 days before it is presented to the grand jury
(g) The accused shall have the right to appear before the grand jury to make such sworn statement as he or she shall desire at the conclusion of the presentation of the state’s evidence. The accused shall not be subject to examination, either direct or cross, and shall not have the right individually or through his or her counsel to examine the state’s witnesses. The accused and his or her counsel shall have the right to be present during the presentation of all evidence and alleged statements of the accused on the proposed indictment, presentment, or accusation, after which the accused and his or her counsel shall retire instanter from the grand jury room to permit the grand jury to deliberate upon the indictment.

The protections afforded under these statutes, however,

have been found not to apply to situations where officers have stepped aside from the performance of their official duties in order to commit crimes. For instance, we have held that officers charged with committing burglary, armed robbery and aggravated assault while on duty are not entitled to these rights inasmuch as the performance of their official duties does not include the commission of such crimes. Likewise, this court has held that the performance of official duties does not include rape.

Relying on Mize v. State, the trial court found and the State now argues that the State was not required to notify Yancey of presentment to the grand jury or allow him to make statements to the grand jury prior to their return of the indictment because “performance of. . . official duties does not include the commission of burglaries.” In Mize, however, there was no argument that the officer was transporting accomplices to the scene of the burgled building for any reason related to his duties as a police officer; thus, even though he may have been wearing his uniform and carrying his department issued weapon during duty hours, his actions could not be characterized as being in performance of his duties.

In this case, although Yancey was not in the office during his regularly scheduled duty hours and normally did not have access to Sheriff O’Connor’s office, there was substantial evidence that he entered the office in furtherance of the investigation of Lowery while he arguably was on call the night of O’Connor’s death. Obviously, the circumstances of that night had most of the police forces of many of the surrounding counties responding to the command post outside of their normal assigned working hours, and there was some evidence that Yancey provided assistance into the investigation at the command post. While it may be the case that he and the other indicted individuals committed burglary that night, that is not the relevant inquiry when determining whether an individual is entitled to the protections of OCGA §§ 17-7-52 and 45-11-4.

Accordingly, we reverse the trial court’s order denying the motion to quash the indictment.

Decided June 16, 2017

Reconsideration denied July 10, 2017

Salter, Shook & Tippett, Susan S. Shook, for appellant.

Timothy G. Vaughn, District Attorney, for appellee.

2. Yancey contends that the video footage of the Sheriff’s office from the night in question should not have been admitted for the trial court to view in relation to his motion to quash. We disagree.

“Trial courts have broad discretion to determine whether a sufficient foundation has been provided for the introduction of evidence. We will not reverse the trial court’s ruling in this regard unless there has been an abuse of that discretion.”

Pursuant to OCGA § 24-9-923 (c),“videotapescreatedbyunmanned cameras ‘shall be admissible in evidence when the court determines, based on competent evidence presented to the court,’ that the video tends to reliably show the fact or facts for which it is offered.” In this case, although it is not clear why Young did not testify about the surveillance system at the hearing on the motion to quash, Dykes testified as to the circumstances under which he created the video of the surveillance video. While the better practice to lay foundation may have been to have Young or another employee testify about the system, we discern no abuse of discretion by the trial court in admitting the video because Dykes testified as to the circumstances and was personally at the Sheriff’s Department when the video was captured. Additionally, the date and time are visible prior to Dykes choosing the portion of the video presented at the hearing. The issues raised as to the State’s failure to produce the original recording or from Young’s failure to testify impact the weight and not the admissibility of the video.

Judgment reversed.

Miller, P. J., and Reese, J., concur.

       OCGA § 16-7-1 (c). The indictment simply alleges that Yancey and several other individuals entered the office with the intent to commit theft, but it does not specify what was taken.

       In 2016, an amendment deleted OCGA § 45-11-4(f) and(g) effective July 1, 2016. See Ga. L. 2016, p. 186, § 8/HB 941. The language of those deleted Code sections was recodified in OCGA § 17-7-52, also effective July 1, 2016.

       See Wiggins v. State, 280 Ga. 268, 269 (1) (626 SE2d 118) (2006) (implicitly applying this standard in review of the trial court’s determination of this issue). See also State v. Bair, 303 Ga. App. 183 (692 SE2d 806) (2010) (applying this standard to the trial court’s ruling on a motion to quash the indictment based on a plea in bar); Smith v. State, 297 Ga. App. 300, 302-303 (1) (676 SE2d 750) (2009) (implicitly applying this standard to review the trial court’s determination of this issue), affirmed by State v. Smith, 286 Ga. 409 (688 SE2d 348) (2010).

       Five other individuals were charged, including Joey Fountain, Matthew Waller, Brandon Braddy, Brent Braddy, and Kathy Rudd.

       The slip was signed by Kathy Rudd.

       (Citations omitted.) State v. Galloway, 270 Ga. App. 184, 185 (606 SE2d 273) (2004).

       152 Ga. App. 190 (262 SE2d 492) (1979).

       Id. at 191-192 (1).

       See id. at 191-192 (1). See also Morrill v. State, 216 Ga. App. 468, 469-470 (2) (454 SE2d 796) (1995) (officer involved in burglary ring who assisted in crimes by monitoring police radio during the incidents while on duty was not protected by OCGA §§ 17-7-52 and 45-11-4).

       See Wiggins, 280 Ga. at 270-271 (1) (holding that an officer was protected by OCGA §§ 17-7-52 and 45-11-4 when he falsified his daily activity sheet to cover up a sexual assault he committed while on duty), citing State v. Lockett, 259 Ga. App. 179, 181 (576 SE2d 582) (2003) (“on duty police officer charged with speeding and driving too fast for conditions was entitled to rights under OCGA §§ 17-7-52 and 45-11-4”) and State v. Roulain, 159 Ga. App. 233, 234 (2) (283 SE2d 89) (1981) (“correctional officers who were charged with involuntary manslaughter because they confined a prisoner under conditions which led to his death by heat prostration did not step aside from the performance of their duties”). See also Smith, 297 Ga. App. at 301-302 (officer protected by OCGA §§ 17-7-52 and 45-11-4 when overlapping hours at two jobs resulted in charges of false statements and writings against him).

       Because this issue could arise on remand, we address Yancey’s second enumeration despite our holding in Division 1.

        Sheppard v. State, 300 Ga. App. 631, 634-635 (2) (686 SE2d 295) (2009).

        Brannon v. State, 298 Ga. 601, 609 (5) (783 SE2d 642) (2016).

       See, e.g., id.; Dawson v. State, 283 Ga. 315, 317-319 (3) (658 SE2d 755) (2008).


author: Reese, Judge.

text:
    A17A0311.
    WOODS v. THE STATE.
    (802 SE2d 822)
   Reese, Judge.

A Glynn County jury found Ralph Woods, Sr., guilty beyond a reasonable doubt of voluntary manslaughter, OCGA § 16-5-2 (a), and simple assault, OCGA § 16-5-20 (a). He appeals from the denial of his motion for a new trial, contending that the evidence was insufficient to support his convictions, that he received ineffective assistance of counsel, and that he was denied his constitutional rights to due process and a speedy trial. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record reveals the following facts. On December 1, 2007, John Mitchell (hereinafter, “the victim”) was in “The Cut,” an area of Brunswick where drugs are often bought and consumed, when he encountered Bernard Robinson. During the encounter, the victim hit Robinson in the head with a brick, robbed him, and ran away Robinson, the Appellant, and other men chased the victim. Upon catching the victim, the men jointly beat him severely with their hands and feet, the Appellant stabbed him, and Robinson shot him. The victim died from his injuries.

The State filed an indictment jointly charging the Appellant, Robinson, and two accomplices, Curtis Grant and Keith Williams, with murder, felony murder, and voluntary manslaughter, as well as counts of aggravated assault against each of them individually. The voluntary manslaughter count alleged that the men caused the death of the victim

under circumstances which would otherwise be murder as the sole result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person, while acting in concert with another to apprehend, detain and assault [the victim], by shooting him with a handgun, by hitting him with a handgun, by stabbing him with a knife, and by repeatedly hitting him with their hands and feet[.]

The Appellant and Robinson were tried together and, in addition to other witnesses, both Williams and Grant testified against them. The jury found the Appellant guilty of committing voluntary manslaughter and simple assault, as a lesser included offense of aggravated assault. The trial court denied the Appellant’s motion for new trial, and this appeal followed.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia,[ ] and does not weigh the evidence or determine witness credibility Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.

The standard of Jackson v. Virginia is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crime charged. With these guiding principles in mind, we turn now to the Appellant’s specific claims of error.

1. The Appellant contends that the State presented insufficient evidence to support his convictions, specifically, that the only evidence that he stabbed the victim and otherwise participated in the murder was the testimony of two of his accomplices, Williams and Grant. He relies on former OCGA § 24-4-8, which provided that the testimony of a single witness was generally sufficient to establish a fact, except in felony cases where the only witness was an accomplice. Under the statute, however, evidence of “corroborating circumstances may dispense with the necessity for the testimony of a second witness [-] ” In order for evidence to corroborate an accomplice’s testimony, it had to be “independent of the accomplice’s testimony,” had to “directly connect the defendant with the crimes or lead to the inference of the defendant’s guilt,” and had to “do more than merely cast a grave suspicion of guilt on the defendant.” Still, “[s]light evidence from an extraneous source identifying the accused as a participant in the criminal act [was] sufficient corroboration of the accomplice to support a verdict.” Further, circumstantial evidence could be used to provide the necessary corroboration. And, significantly, the testimony of one accomplice could corroborate the testimony of another accomplice.

In this case, Williams testified that the Appellant was in “The Cut” when the victim struck Robinson’s head, the Appellant and other men chased the victim, and the Appellant participated in the beating of the victim. Williams also testified that, after the assault, the Appellant told him that he (the Appellant) had “stabbed [the victim] a couple times.”

Similarly, Grant testified that, on the day of the murder, he saw the Appellant in “The Cut” when the victim attacked Robinson. Immediately after the attack, Grant heard Robinson say to the Appellant, “Ralph, catch him for me[,]” referring to the victim. The Appellant, Grant, and others chased the victim through the neighborhood. A few minutes later, Grant saw the victim lying on the ground with the Appellant and others beating and kicking him. Grant saw Robinson shoot the victim, and then he saw the Appellant stabbing the victim in the back with a long, “Army dagger[-]like knife.” According to Grant, the Appellant must have gotten the knife from a nearby abandoned car, where Grant knew that a similar knife had been hidden. Grant testified that he was only three feet away when the Appellant stabbed the victim.

The accomplices’ testimony was further corroborated by that of an eyewitness who had known the Appellant for years. He testified that, on the night at issue, he saw the Appellant and others chase the victim, watched as the Appellant beat up the victim with Robinson and Grant, and saw Robinson shoot the victim. According to the eyewitness, the Appellant used a “stabbing” motion as he repeatedly struck the victim, although the witness did not actually see a knife in the Appellant’s hand at that time. And, after the beating was over, the witness saw blood on the Appellant’s clothing.

Given this evidence, we find that the testimony of the Appellant’s accomplices about his participation in the crimes was adequately corroborated, and that the totality of the evidence, when viewed in the light most favorable to the jury’s verdict, was sufficient for the jury to find him guilty beyond a reasonable doubt of the crimes charged.

2. The Appellant contends that he received ineffective assistance when his trial counsel failed to request a jury instruction on involuntary manslaughter as a lesser included offense to the voluntary manslaughter charge.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. [The appellate court accepts] the trial court’s factual findings and credibility determinations unless clearly erroneous, but it independently applies] the legal principles to the facts.

“Since an appellant claiming ineffective assistance of counsel must show both deficient performance and actual prejudice stemming from that deficiency, an insufficient showing on either of these prongs relieves the reviewing court of the need to address the other prong.”

In this case, the Appellant’s trial counsel testified that he asserted an alibi defense at trial because the Appellant had consistently insisted that he had not been present during the attack on the victim, but, instead, was at a cookout. In support of that alibi defense, trial counsel vigorously cross-examined Williams and Grant — the two accomplices who testified against the Appellant — as well as the other witnesses. He also argued to the jury that the accomplices were not credible witnesses; that they were lying in order to implicate the Appellant and get a lighter sentence for themselves; and that it was Grant, not the Appellant, who had actually stabbed the victim.

Under such circumstances, a request for a jury instruction on involuntary manslaughter, as a lesser included offense to voluntary manslaughter, would have been completely inconsistent with the Appellant’s alibi defense. We conclude that it was reasonable for trial counsel “to rely on [the Appellant’s] claim of complete innocence, and to defend [him] by attacking the credibility of the [accomplices] whose testimony implicated him in the crimes.”

This Court “evaluates counsel’s performance from counsel’s perspective at the time of trial. As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” Under the circumstances presented, we conclude that trial counsel’s failure to request a jury instruction that was inconsistent with the complete defense asserted by his client did not constitute ineffective assistance.

3. The Appellant contends that the trial court violated his right to a speedy trial and that, as a result, his defense was “fatally handicapped.” The Supreme Court of Georgia, however, has already decided this issue adversely to the Appellant in an appeal filed by him and his co-defendant, Robinson, from the denial of their motions to dismiss the indictment. In Robinson v. State, the Court concluded that the defendants could not prevail on their constitutional speedy trial claims because they had failed to show any harm, explaining that “no witnesses have died or disappeared; there is no evidence that witnesses have lost their memories; and the defense strategy remained unchanged.” The Appellant has failed to present evidence of any additional prejudice to his defense that did not exist before the Supreme Court issued its ruling. Consequently, this enumeration lacks merit.

4. The Appellant claims that he was improperly denied his Sixth Amendment right to “conflict-free” counsel. He argues that his trial counsel was not appointed to represent him until nine months after his arrest and, as a result of that delay, an “essential” alibi witness could not be located and called to testify in his defense at trial.

The record shows, however, that a public defender was appointed for the Appellant in the “early spring” of 2008, about three months after the Appellant’s January 2008 arrest. The public defender testified at the motion for new trial hearing that the Appellant had given him the “street nicknames” and phone numbers of two potential alibi witnesses and that he had diligently attempted to find and interview them, but was unsuccessful. The public defender stopped representing the Appellant in August 2008, and a new attorney was appointed in October 2008 and continued to represent the Appellant through the trial. During the motion for new trial hearing, trial counsel testified that he had attempted to find a specific potential alibi witness, but was unable to do so. Neither the Appellant, nor either of his appointed counsel, identified the alibi witnesses who were the subject of their searches, and the Appellant has not identified the “essential” alibi witness to whom he refers in his appellate brief.

The record shows, however, that shortly before the Appellant’s trial, his trial counsel filed a notice of intent to present an alibi defense, identifying one potential witness named “Beatrice McCray.” The notice also stated that counsel had been diligently searching for the witness, but had been unable to find her. It is significant, therefore, that the trial transcript shows that the State actually called Ms. McCray as a witness at trial, and the Appellant’s trial counsel was able to cross-examine her. In fact, Ms. McCray testified that the Appellant’s trial counsel had interviewed her prior to trial and that he had recorded the interview. It follows that the Appellant cannot show that the delay in his counsel’s appointment denied him the benefit of Ms. McCray’s testimony

Although the Appellant now claims that the delay deprived him of the opportunity to call a different, “essential” alibi witness at trial, the record shows that he failed to identify that witness prior to trial in his notice of an alibi witness. As a result, he cannot show that the witness, if he or she had been found, would have been allowed to testify. Nor has he proffered any evidence to support a finding that the witness would have testified favorably to him at trial or that, if the witness had testified, there is a reasonable probability that the outcome of the trial would have been different. Consequently, the Appellant has failed to demonstrate any prejudice that resulted from the delay in the appointment of trial counsel.

And, as for whether a delay hampered the Appellant in obtaining the testimony of any other potential defense witnesses who may have been at “The Cut” on the day of the murder, the Appellant’s original public defender admitted that “The Cut” was a “place of ill repute” and that many of the people who “hang out” in that area were “transients,” such as drug users, prostitutes, and vagrants, who might refuse to speak to a lawyer or an investigator. He admitted, therefore, that, even if he or an investigator had tried to find witnesses in “The Cut” as soon as the Appellant was arrested, he could not say that it would have helped the Appellant’s defense.

Notably, the Supreme Court of Georgia specifically addressed this issue in its ruling in the appeal from the conviction of the Appellant’s accomplice, Robinson. In that case, Robinson also claimed that he was prejudiced by the delay in the appointment of counsel to represent him, arguing that it reduced his ability to track down witnesses in “The Cut.” The Court rejected that contention as mere speculation, given evidence that “the transient nature of these witnesses could have made them impossible to find.” The Appellant has failed to offer any reason that this Court should not reach the same conclusion in this case.

Consequently, we conclude that this enumeration presents no reversible error.

5. The Appellant complains that the State failed to disclose that it had an agreement with his accomplice, Grant, to give him immunity or leniency in exchange for his trial testimony, arguing that such failure to disclose hampered his ability to impeach Grant during trial. There is no merit to this contention.

The record shows that, prior to trial, the State gave Grant use and derivative use immunity, agreeing that any testimony or evidence he presented during the Appellant’s trial (or related proceedings) would not be used against him during his own trial, except to the extent that such testimony or evidence was false or conflicted with his testimony at his own trial. The State filed a notice of its grant of immunity on February 24, 2009, almost 18 months before the Appellant’s August 2010 trial. Thus, the Appellant cannot claim to have been ignorant of this grant of immunity

Moreover, the Appellant’s assertion that the State must have agreed to give Grant leniency in his prosecution and sentencing in exchange for his testimony in the Appellant’s trial is pure speculation. Not only is there no evidence of such an agreement in the record, the trial transcript affirmatively shows that no such agreement existed at the time of the Appellant’s trial. Grant specifically testified that he had been charged with the murder of the victim and that he did not have any “deals” or agreements with the State “with regard to what’s going to happen to [his] case.” In addition, during a bench conference, the prosecutor vociferously denied that such an agreement existed. Finally, during the motion for new trial hearing, the Appellant’s trial counsel admitted that, at the time of the Appellant’s trial, the prosecutor informed him that the State did not have an agreement with Grant to give him leniency in exchange for his testimony

In persisting to assert his claim of a secret deal between Grant and the State, the Appellant relies entirely on the fact that Grant received a lighter sentence than the Appellant believes was appropriate, given Grant’s participation in the murder. However, “the subsequent disposition of charges against the witness, standing alone, does not establish the existence of a deal.” Given that the State has consistently denied that a deal with Grant existed at the time of the Appellant’s trial, the trial court accepted that representation as true, and the Appellant offers nothing but pure speculation to the contrary, we cannot say that the court’s finding that there was no deal with Grant is clearly erroneous. Consequently, this alleged error presents no basis for reversing the Appellant’s convictions.

Decided June 16, 2017

Reconsideration denied July 10, 2017

Clare Nolan, for appellant.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Thomas E. Buscemi, Hadley H. Mann, Assistant District Attorneys, for appellee.

Judgment affirmed.

Doyle, C. J., and Miller, P. J., concur.

       See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       Additional facts are provided in the Supreme Court of Georgia’s opinion affirming Robinson’s murder conviction. See Robinson v. State, 299 Ga. 648 (791 SE2d 13) (2016).

       See OCGA § 16-5-2 (a) (“A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder.”).

       Prior to the Appellant’s trial, the State dismissed the felony charges against Williams in exchange for his guilty plea to simple assault. As for Grant, at the time of trial, he was stillfacing the murder and other charges arising from the victim’s death.

       The jury convicted Robinson of malice murder and possession of a firearm by a convicted felon, and the Supreme Court of Georgia affirmed Robinson’s convictions. See Robinson, 299 Ga. at 648-651.

       443 U. S. at 319 (III) (B).

        Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004) (citations omitted).

        Clark v. State, 275 Ga. 220, 221 (1) (564 SE2d 191) (2002).

       In 2011, the Georgia General Assembly repealed the existing Evidence Code in its entirety and replaced it with a new Evidence Code, the provisions of which became effective on January 1, 2013. See Ga. L. 2011, p. 99, §§ 1, 101. Because the Appellant’s trial took place in August 2010, the former Evidence Code applies.

       See Young v. State, 291 Ga. 627, 629 (2) (732 SE2d 269) (2012); Jordan v. State, 278 Ga. App. 126, 128 (1) (628 SE2d 221) (2006).

        Young, 291 Ga. at 629 (2) (citation and punctuation omitted).

       Id. (citation omitted).

       Id. (citation and punctuation omitted).

        See Blalock v. State, 250 Ga. 441, 443 (4) (298 SE2d 477) (1983).

       Id. The record shows that the trial court instructed the jury on the testimony of an accomplice and the need for corroborating evidence.

        See Preval v. State, 302 Ga.App. 785, 787-788 (1) (692 SE2d 51) (2010) (The evidence was sufficient to support the defendant’s convictions, because the accomplices amply corroborated each other’s testimony that the defendant planned and participated in the crimes.); cf. Johnson v. State, 277 Ga.App. 499, 504-505(2) (b) (627 SE2d 116) (2006) (reversing convictions for armed robbery, kidnapping, and related crimes because the evidence showed that the defendant was merely present with the co-defendants before and after the crimes, and neither co-defendant implicated the defendant in the crimes, there were no eyewitnesses who saw the defendant participating in the crimes, there was no evidence linking the defendant to the weapon used in the crimes, and there was no evidence that the defendant received any of the proceeds from the armed robbery).

       See OCGA § 16-5-3 (a) (“[A] person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony.”); see also OCGA §§ 16-1-6; 16-1-7 (lesser included offenses).

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

        Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003) (citations and punctuation omitted).

        Williams v. State, 277 Ga. 853, 858 (6) (a) (596 SE2d 597) (2004) (citations and punctuation omitted).

       See Sparks v. State, 277 Ga. 72, 74 (3) (586 SE2d 645) (2003); see also Gibbs v. State, 257 Ga. App. 38, 39 (2) (570 SE2d 360) (2002) (A jury instruction on a lesser included offense is not required when ‘the evidence shows either the commission of the completed offense as charged, or the commission of no offense[.]”) (punctuation and footnote omitted).

        Sparks, 277 Ga. at 74-75 (3). See Ingram v. State, 317 Ga. App. 606, 608 (2) (732 SE2d 456) (2012) (Because it was reasonable for trial counsel to decide, based upon his review of the evidence, to pursue an “all-or-nothing” defense strategy instead of requesting a jury instruction on a lesser included offense, the Court found no merit in the Appellant’s ineffective assistance claim.).

        Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001) (citations and punctuation omitted). See Ingram, 317 Ga. App. at 608 (2) (“Decisions as to which charges will be requested generally fall within the realm of trial tactics and strategy.”) (citation and punctuation omitted).

       See Sparks, 277 Ga. at 74-75 (3); see also Ellis v. State, 316 Ga. App. 352, 365 (8) (d) (729 SE2d 492) (2012) (“[T]he failure to request a jury instruction on a lesser included offense cannot support a claim of ineffective assistance where . . . the evidence does not reasonably raise the issue that [the defendant] may be guilty only of the lesser crimes.”) (citations omitted; emphasis in original).

       287 Ga. 265 (695 SE2d 201) (2010).

       Id. at 269 (1) (d).

       Notably, the Appellant’s trial counsel represented the Appellant in the appeal to the Supreme Court, and he presented the same argument then that the Appellant has raised in the motion for new trial and in the instant appeal, i.e., that the Appellant’s lack of representation by counsel following his arrest hampered the effort to find and interview potential witnesses who might testify favorably on his behalf at trial.

       See Robinson, 287 Ga. at 265 (discussing the conflict-of-interest issue that arose in the Circuit Defender’s Office following the arrest of the Appellant and his accomplices).

       See OCGA § 17-16-5 (a) (“Upon written demand by the prosecuting attorney .... the defendant shall serve within ten days of the demand of the prosecuting attorney or ten days prior to trial, whichever is later, . . . upon the prosecuting attorney a written notice of the defendant’s intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the defendant, upon whom the defendant intends to rely to establish such alibi unless previously supplied.”); (c) (“If prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information furnished under subsection (a) or (b) of this Code section, the party shall promptly notify the other party of the existence and identity of such additional witness.”).

       See OCGA § 17-16-6 (“If at any time during the course of the proceedings it is brought to the attention of the court that the defendant has failed to comply with the requirements of this article, the court may order the defendant to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.”).

       See Strong v. State, 275 Ga. 465, 466 (2) (a) (569 SE2d 523) (2002) (The Appellant “did not produce [a potential defense] witness or his affidavit at the hearing on the motion for new trial, and thus did not present any probative evidence that he would have testified for the defense or that, if so, his testimony would have been exculpatory. Without a proper proffer of the testimony, Appellant cannot show a reasonable probability that the missing witness’ appearance at trial would have resulted in a different verdict.” Thus, the Appellant failed to demonstrate any prejudice resulting from the alleged error.) (citations and punctuation omitted).

        See Robinson, 299 Ga. at 650 (2).

        See Robinson, 299 Ga. at 650 (2).

       See id.

       See id.

       See Giglio v. United States, 405 U. S. 150, 151, 154-155 (92 SCt 763, 31 LE2d 104) (1972) (The Supreme Court reversed the defendant’s conviction because the prosecution’s case “depended almost entirely” upon the testimony of a key witness, and the State failed to notify defense counsel before trial that it had promised the witness that he would not be prosecuted if he testified against the defendant. According to the Court, the credibility of this essential witness was “an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility [,] and the jury was entitled to know of it.”).

       During the bench conference, the prosecutor specifically informed trial counsel that, while the State had previously offered Grant a guilty plea agreement, Grant had refused it. The State then withdrew the offer and had not made another prior to his testimony in the Appellant’s trial.

        DeVaughn v. State, 296 Ga. 475, 480 (5) (769 SE2d 70) (2015) (citation and punctuation omitted).

       See id.


author: BARNES, Presiding Judge.

text:
    A17A0820.
    THOMAS v. THE STATE.
    (803 SE2d 131)
   BARNES, Presiding Judge.

Star Ashley Thomas appeals her convictions for trafficking in methamphetamine and three misdemeanor drug offenses. She argues that there was insufficient evidence to support her trafficking conviction, that the trial court erred by allowing a forensic chemist from the Georgia Bureau of Investigation (“GBI”) to testify about drug identification tests performed by a different chemist, and that her trial counsel rendered ineffective assistance by failing to object to the introduction into evidence of both chemists’ crime lab reports. We find no error and affirm.

Viewed in a light favorable to the jury’s verdict, the evidence shows that in January 2014, Thomas’s brother overdosed on heroin at their mother’s Douglasville home, where Thomas also lived. The first responder at the scene was a police corporal, who found the man’s mother and two other women attempting to resuscitate him. Emergency medical services personnel arrived soon after and transported the man to a hospital, accompanied by the mother and one of the other women, a family friend who was visiting from out of town. The man later died.

The third woman who had been helping him stayed behind at the house, and the corporal interviewed her. The third woman told the corporal that she and the man had used heroin and marijuana earlier, and she gave the corporal a marijuana pipe and the wrapper in which the heroin had been packaged.

While the corporal was talking to the third woman, Thomas came upstairs from the basement and the corporal noticed her for the first time. The corporal followed Thomas back downstairs to a bedroom she identified as hers. After ascertaining her identity, he brought her upstairs for questioning. Suspecting there were more drugs in the house, the corporal asked Thomas for permission to search, but she said no. He told her to wait in the kitchen while the police applied for a search warrant. At that point, Thomas — whose demeanor had been calm — became “very concerned” and wanted to leave the house.

The detective assigned to the case obtained a warrant and, with the assistance of another officer, searched Thomas’s bedroom. Before the search began, Thomas told the detective that he “might find a little marijuana, but that’s all [she had].” On top of the dresser, however, the police found a “white crystal-like substance” — which they suspected was methamphetamine — “sprinkled out” on a plate, along with a rolled up dollar bill. Inside a drawer, the police found a plastic tub containing a large amount of a substance that field-tested positive for methamphetamine. The substance was later taken to the GBI crime lab and was determined to weigh 37.24 grams and to contain methamphetamine. Next to the tub was a bottle of “crystal flake,” a substance commonly used to “cut” methamphetamine. Elsewhere in the room, the police found a digital scale, a number of baggies, a glass methamphetamine pipe, two grinders used to pulverize marijuana, several marijuana cigarettes, and several pills of a prescription muscle relaxant, Tizanidine.

Thomas was arrested and charged with trafficking in methamphetamine and possession of marijuana, Tizanidine, and drug-related objects. At trial, Thomas and her mother testified in Thomas’s defense. Thomas conceded that the marijuana and marijuana-related materials found in her bedroom were hers. She maintained, however, that the tub of methamphetamine had been left behind by her former live-in boyfriend, who had told her it contained “some kind of carpet cleaner... used as a cut.” Thomas stated that her ex-boyfriend also had left behind clothing in the dresser and closet, and her mother likewise testified that his clothing was present in the room. According to Thomas’s mother, the visiting family friend had been sleeping in Thomas’s bedroom during the week before her son’s overdose. Thomas insisted that the suspected methamphetamine found on top of her dresser belonged to the family friend. The detective who searched Thomas’s room found no men’s clothing there and no sign that anyone except Thomas was living in the room.

A jury found Thomas guilty of the charges. She filed a motion for new trial, which the trial court denied, and this appeal followed.

1. Thomas argues that there was insufficient evidence to support her trafficking conviction because the State failed to show that she constructively possessed the methamphetamine found in her dresser. She contends that her ex-boyfriend and the family friend staying in her bedroom had equal access to the methamphetamine and that the evidence of her possession of it “was based merely on spatial proximity.” We conclude that whether Thomas constructively possessed the methamphetamine was a question for the jury

A person who possesses 28 or more grams of methamphetamine commits the offense of trafficking in methamphetamine. OCGA § 16-13-31 (e); see also Navarro v. State, 293 Ga. App. 329, 330-331 (667 SE2d 125) (2008). “If the State presents evidence that a defendant owned or controlled premises where contraband was found, it gives rise to a rebuttable presumption that the defendant possessed the contraband.” (Citation and punctuation omitted.) Bailey v. State, 294 Ga. App. 437, 439-440 (1) (669 SE2d 453) (2008); see also Swan v. State, 300 Ga. App. 667, 670 (2) (686 SE2d 310) (2009); Castillo v. State, 288 Ga. App. 828, 830 (655 SE2d 695) (2007). This presumption may be rebutted by evidence that someone other than the defendant had equal access to the specific place where the contraband was found, but whether the defendant presented sufficient evidence to establish equal access is a jury question. Swanger v. State, 251 Ga. App. 182, 185-186 (1) (b) (554 SE2d 207) (2001) (“[hjaving heard evidence in support of [defendant’s] equal access theory, the jury was authorized to reject it”).

Thomas presumptively possessed the methamphetamine at issue here because it was found in a dresser in her bedroom. See Swan, 300 Ga. App. at 670 (2); Bailey, 294 Ga. App. at 439-440 (1). Additionally, evidence of recent methamphetamine use was found in open view on top of the dresser, Thomas admitted that other drugs and drug paraphernalia found in the room were hers, and the police saw no indication that anyone else was living in the room. Although Thomas claimed that the methamphetamine in the dresser and the suspected methamphetamine on top of the dresser belonged to other people, the jury was not required to believe her testimony See Swan, 300 Ga. App. at 670-671 (2) (“[w]hether the evidence of equal access is sufficient to rebut any inference of possession arising from discovery of drugs in the defendant’s bedroom is a question properly left to the jury”) (citation and punctuation omitted).

2. Thomas argues that the trial court erred by allowing a GBI forensic chemist to testify about drug identification tests performed by a different chemist who was not available at trial. We disagree.

During trial, the State announced that the chemist who had weighed and performed the drug analysis of the methamphetamine found in Thomas’s dresser could not come to court due to her husband’s medical emergency and her own serious illness. Over Thomas’s objection, the State presented the testimony of the woman’s co-worker, another GBI chemist, who was tendered as an expert in forensic chemistry and drug identification testing. The second chemist stated that while he had neither performed the drug analysis himself nor witnessed the first chemist doing so, he had independently evaluated the data on which her results were based and reached his own conclusion:

Essentially, in our software system, we have at the laboratory, where we keep all of our technical data and results, whatever, I basically looked at the data she had produced in our software system. I looked up, you know, everything she did ... and all the data that she used to draw a conclusion on this case. And essentially, with my expertise, I looked at that data, came to the same conclusion she did, and I produced a report signifying that.

The second chemist also examined the instruments that the first chemist had used and found them to be in working order. He testified that the first chemist was a “very straight arrow” known for her diligence and that “[tjhere was nothing in the data to suspect any kind of mishandling of the evidence or her way of testing it.” He explained that if the first chemist had improperly performed the tests, “it would show in the data that she did something wrong or that the data she produced [wasn’t] consistent.” Ultimately, the second chemist agreed with the first chemist that the substance in the tub was 37.24 grams of solid material containing methamphetamine. Thomas was able to cross-examine the second chemist, and the court instructed the jury to consider the fact that she was unable to cross-examine the first chemist when evaluating the credibility of the second chemist.

Thomas argues that the admission of the second chemist’s testimony violated her right to confront the witnesses against her under the Confrontation Clause. She cites Bullcoming v. New Mexico, 564 U. S. 647 (131 SCt 2705, 180 LE2d 610) (2011), in which the State of New Mexico introduced a forensic lab report certifying that a DUI defendant’s blood alcohol concentration was above the legal limit. The scientist who generated and signed the report had since been “placed on unpaid leave for an undisclosed reason,” and the prosecution did not call him as a witness. Id. at 659 (II). Instead, the prosecution called a different scientist who “had neither observed nor reviewed [the original scientist’s] analysis,” nor reached an independent conclusion about it. Id. at 655 (I) (B). The United States Supreme Court ruled that the “surrogate testimony” of the second scientist was insufficient to satisfy the Confrontation Clause, particularly when the state had not asserted that the original scientist was unavailable, the defendant did not know why he had been placed on leave, and his presence at trial would have permitted the defendant to ask “questions designed to reveal whether incompetence, evasiveness, or dishonesty accounted for [the first scientist’s] removal from his work station.” Id. at 662 (II) (B).

Georgia courts “have consistently held that the Confrontation Clause does not require the analyst who actually completed the forensic testing used against a defendant to testify at trial.” (Citation and punctuation omitted.) Leger v. State, 291 Ga. 584, 592 (5) (732 SE2d 53) (2012). In Disharoon v. State, 291 Ga. 45 (727 SE2d 465) (2012), the Supreme Court of Georgia recognized Bullcoming’s condemnation of “surrogate testimony” but ruled that Bullcoming does not require the exclusion of a substitute witness who “is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue.” (Citation and punctuation omitted.) Id. at 48; see also Leger, 291 Ga. at 592 (5) (scientist who did not personally perform DNA tests, but supervised worker who did, interpreted worker’s results, and wrote lab report could testify at trial); Estrada v. State, 319 Ga. App. 762, 765-766 (3) (738 SE2d 344) (2013) (analyst who performed lab testing was unavailable, but supervisor could testify because he had reviewed analyst’s work to determine whether it had been performed correctly and whether he agreed with it).

In this case, there was evidence that the first chemist was known to be careful in her work but was unavailable at trial due to circumstances unrelated to her job performance. The second chemist explained the procedures the first chemist had followed, inspected the testing instruments she had used, analyzed the data she had electronically stored, determined that the data appeared to be reliable, reached an independent conclusion concerning the nature of the tested substance, and generated his own report. Given the second chemist’s “personal, albeit limited, connection to the scientific test at issue,” (citation and punctuation omitted) Disharoon, 291 Ga. at 48, his testimony was not the sort of “surrogate testimony” forbidden by Bullcoming. Thomas’s Confrontation Clause rights were not violated.

3. Thomas argues that she received ineffective assistance of counsel because her trial lawyer failed to object, during the second chemist’s testimony, to the admission into evidence of both his report and the report of the first chemist concerning the weight and nature of the substance found in her dresser drawer. Although counsel objected repeatedly to the testimony of the second chemist, he did not specifically challenge the admissibility of the lab reports. We, however, find no ineffective assistance.

The second chemist’s lab report was admissible because the person who generated the report — the second chemist — testified at trial and was available for cross-examination. See Wise v. State, 300 Ga. 593, 598 (4) (797 SE2d 447) (2017); compare Melendez-Diaz v. Massachusetts, 557 U. S. 305 (129 SCt 2527, 174 LE2d 314) (2009) (crime lab reports are testimonial and therefore inadmissible unless the analysts themselves testify at trial). Any objection to the admission of the report would have been meritless, and the failure to make a meritless objection is not ineffective assistance of counsel. See Tran v. State, 340 Ga. App. 546, 554 (2) (c) (798 SE2d 71) (2017).

Assuming without deciding that the first chemist’s lab report was not admissible, counsel’s failure to object to its admission did not prejudice Thomas. As noted in Division 2, the second chemist properly testified about the first chemist’s testing and conclusions, and the second chemist’s independent report — which reached the same conclusions as the first chemist’s report — was properly admitted into evidence. Because the first chemist’s report was merely cumulative of other, admissible evidence, Thomas cannot establish the prejudice necessary for an ineffective assistance claim. See Wilson v. State, 297 Ga. 86, 88 (2) (772 SE2d 689) (2015) (“The failure of trial counsel to object to such cumulative evidence does not support a claim of ineffective assistance of counsel.”).

Decided July 10, 2017.

James K. Luttrell, for appellant.

Brian K. Fortner, District Attorney, Sean A. Garrett, Assistant District Attorney, for appellee.

Judgment affirmed.

McMillian and Mercier, JJ., concur.

       See Hubbard v. State, 274 Ga. App. 639, 639 (618 SE2d 690) (2005).

       The assisting officer testified that rolled-up bills are commonly used to snort methamphetamine.

       Thomas also was charged with possession of another prescription medication discovered in her room, but the jury found her not guilty of that offense.

       Thomas and her ex-boyfriend had been arrested on drug charges, including trafficking in methamphetamine, the previous year. The charges against Thomas were dropped, but her ex-boyfriend apparently was convicted and remained incarcerated at the time of Thomas’s trial.

       The suspected methamphetamine found on top of the dresser was neither weighed nor tested and thus did not form the basis of the trafficking charge.

       See U. S. Const. Amend. VI (“In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”).

       Thomas also asserts that the second chemist’s testimony was inadmissible hearsay. But the second chemist, who “made the determination that the substance was contraband based on [his] interpretation of the data[,] did testify at trial and was thus subject to cross-examination.” Carolina v. State, 302 Ga. App. 40, 42 (690 SE2d 435) (2010). Therefore, there was no hearsay problem. See id.