author: McFADDEN, Judge.

text:
    A15A1738.
    KIMBROUGH et al. v. THE STATE.
    (785 SE2d 54)
   McFADDEN, Judge.

The state charged appellants Heather Kimbrough and Melissa Ann Mayfield (“the defendants”), along with two other people, with violation of the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act, OCGA § 16-14-letseq. and certain drug offenses. The defendants filed general and special demurrers to the Georgia RICO Act count of the indictment. The trial court denied the demurrers, and we granted the defendants’ application for interlocutory review. On appeal, the defendants argue that the indictment fails to specify how they violated the Georgia RICO Act. We hold that the Georgia RICO Act count, which largely tracks the language of the statute, is sufficient to withstand the demurrers and thus affirm the trial court.

1. State’s request to dismiss the appeal.

Initially, we reject the state’s argument that we should dismiss the appeal because Kimbrough did not timely file her demurrers. A defendant may file a general demurrer at any time before the trial court. Jackson v. State, 316 Ga. App. 588, 592 (2) (730 SE2d 69) (2012). It is true that a defendant must file a special demurrer “within ten days after the date of arraignment, unless the time for filing is extended by the court.” OCGA § 17-7-110. See Palmer v. State, 282 Ga. 466, 468 (651 SE2d 86) (2007). But the state points to nothing in the appellate record showing the date of arraignment so as to support its argument that Kimbrough’s special demurrer was untimely. See McHugh Fuller Law Group v. PruittHealth-Toccoa, 297 Ga. 94, 98 (2) (772 SE2d 660) (2015) (appellee may designate for inclusion in the appellate record any materials that the appellant has omitted). In any event, it is not a ground for dismissing an appeal that a special demurrer, or for that matter any motion, was not timely filed in the trial court. See OCGA § 5-6-48 (b).

2. Demurrers.

“A demurrer to an indictment may be general or special. A general demurrer challenges the very validity of the indictment [while] the special objects merely to its form or seeks more information. . . .” Stinson v. State, 279 Ga. 177, 180 (2), n. 3 (611 SE2d 52) (2005) (citation omitted). “We review a trial court’s ruling on a general or special demurrer de novo in order to determine whether the allegations in the indictment are legally sufficient.” Sallee v. State, 329 Ga. App. 612, 616 (2) (765 SE2d 758) (2014) (citations omitted).

The defendants challenge Count 1 of the indictment which charged them and two other people with

the offense of RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS — CONDUCTING OR PARTICIPATING IN AN ENTERPRISE THROUGH PATTERN OF RACKETEERING ACTIVITY (OCGA § 16-14-4 [b]) in that the said accused, in the State of Georgia and County of Gwinnett, between the 20th day of January, 2012 and the 12th day of July, 2012, being associated with an enterprise to wit: Executive Wellness and Rehabilitation, did participate in, directly and indirectly, such enterprise through a pattern of racketeering activity, as more particularly described in this count and this indictment, which counts are incorporated herein by reference as if fully set forth. At all times material to this Count of this indictment, the enterprise was a corporation or a group of people associated in fact although not a legal entity. The pattern of racketeering activity consisted of the following: between the 20th day of January, 2012 and the 12th day of July, 2012, in Gwinnett County, Georgia, the accused did commit the offense of Violation of the Georgia Controlled Substances Act: Unauthorized Distribution (OCGA § 16-13-43), in that said accused unlawfully obtained possession of Oxycodone, a Schedule II Controlled Substance, by withholding information from various practitioners, to wit: [five named individuals], that the accused had obtained a controlled substance of a similar therapeutic use in a concurrent time period from another practitioner, contrary to the laws of said State, the peace, good order and dignity thereof.

The next 21 counts of the indictment charged Kimbrough and May-field with specific acts in violation of OCGA § 16-13-43, which prohibits the unauthorized distribution of controlled substances. Under former OCGA § 16-14-3 (9) (A) (i), violations of OCGA § 16-13-43 could be racketeering activity.

(a) General demurrer.

In a general demurrer, a defendant

challenges the validity of an indictment by asserting that the substance of the indictment is legally insufficient to charge any crime, and it should be granted only when an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law. Put another way, the true test of the sufficiency of an indictment to withstand a general demurrer is found in the answer to the question: Can the defendant admit the charge as made and still he innocent? If he can, the indictment is fatally defective.

Poole v. State, 326 Ga. App. 243, 247-248 (2) (a) (756 SE2d 322) (2014) (citation and punctuation omitted). And “[e]very indictment of the grand jury which states the offense in the terms and language of [our] Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct.” OCGA § 17-7-54 (a). “Thus, an indictment couched in the language of the statute alleged to have been violated is not subject to a general demurrer.” State v. Wyatt, 295 Ga. 257, 260 (2) (759 SE2d 500) (2014) (citation and punctuation omitted). Here, Count 1 of the indictment substantially tracks the language of OCGA § 16-14-4 (b), which provides that, “It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.” Count 1 was thus sufficient to withstand the defendants’ general demurrers. Wyatt, 295 Ga. at 260 (2).

(b) Special demurrer.

The defendants argue that the trial court erred by denying their special demurrers because Count 1 fails to inform them of: the manner in which they allegedly participated in the enterprise; the enterprise’s relationship to the alleged racketeering activity; and which substantive counts in the indictment constitute the predicate acts. We disagree.

By filing a special demurrer, an accused claims, not that the charge in an indictment is fatally defective and incapable of supporting a conviction (as would be asserted by general demurrer), but rather that the charge is imperfect as to form or that the accused is entitled to more information.

State v. Delaby, 298 Ga. App. 723, 724 (681 SE2d 645) (2009) (citations and punctuation omitted). See also Christian v. State, 288 Ga. App. 546, 548 (2) (654 SE2d 452) (2007) (defendant seeking “greater specificity with regard to the ... circumstances of the alleged crime” must file special demurrer). We must determine

not whether the indictment could have been clearer, but whether it states the elements of the offense and sufficiently apprises the defendant of what [s]he must be prepared to meet, and, in case any other proceedings are taken against [her] for a similar offense, whether the record shows with accuracy to what extent [s]he may plead a former acquittal or conviction.

Delaby, 298 Ga. App. at 724-725 (citation and punctuation omitted). (i) Participation in the enterprise and the enterprise’s relationship to the alleged racketeering activity.

We reject the defendants’ arguments that the indictment does not sufficiently allege the manner in which they participated in the enterprise and the enterprise’s relationship to the alleged racketeering activity. We note at the outset that our Supreme Court has rejected a vagueness and overbreadth challenge to OCGA § 16-14-4 (b)’s “participate in [an] enterprise” language. (As detailed in Division 2 (a), OCGA § 16-14-4 (b) provides that, “It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.”) In Chancey v. State, 256 Ga. 415 (349 SE2d 717) (1986), the court rejected the contention that OCGA § 16-14-4 (b) “is vague and overbroad in that it makes it unlawful to ‘associate’ or ‘participate’ even ‘indirectly’in an enterprise.” Id. at 427-428 (III) (4) (D). The court ruled that the challenge lacked merit because the statute requires “such participation in the enterprise [to] be ‘through a pattern of racketeering activity.’ ” Id. at 428 (III) (4) (D). Further, the court held “that ‘any person’ of average intelligence, on a clear reading of that statute, together with relevant definitional provisions, could not help but realize that they would be criminally liable for participating in ‘any enterprise,’ including their own, ‘through a pattern of racketeering activity.’ ” Id. (citations and punctuation omitted).

Largely tracking the statutory language, and in accordance with the principles of Chancey, Count 1 of the indictment alleges that the defendants participated in Executive Wellness through a pattern of racketeering activity. It generally describes the racketeering activity as unlawfully obtaining possession of oxycodone by withholding information from the practitioners who prescribed the drug and then describes that activity more specifically by incorporating the remaining counts of the indictment, which set out the predicate acts with more specificity.

This is sufficient to allege the manner in which the defendants participated in the enterprise: they participated by allegedly committing the predicate acts. Moreover, Count 1 provides a nexus between the predicate acts and the enterprise by use of the preposition “through.” See Rodriguez v. State, 284 Ga. 803, 807 (1) (671 SE2d 497) (2009) (addressing similar Georgia Street Gang Terrorism and Prevention Act).

“Because the Georgia RICO Act was modeled after the federal statute, [our supreme cjourt has found federal authority persuasive in interpreting the Georgia RICO statute____” Williams Gen. Corp. v. Stone, 279 Ga. 428, 430 (614 SE2d 758) (2005). Federal courts have rejected similar challenges to RICO indictments. See United States v. McDonough, 959 F2d 1137, 1140-1141 (1st Cir. 1992); United States v. Cauble, 706 F2d 1322, 1334 (B) (5th Cir. 1983).

It is true, as the defendants argue, that where the statutory definition of an offense includes generic terms, the state may be required to state the “species of acts charged [and] descend' to particulars.” Delaby, 298 Ga. App. at 725 (citation and punctuation omitted). But here, the state did just that, specifying in the counts alleging predicate acts the acts that amounted to the defendants’ participation in the enterprise. We conclude that the indictment, when read as a whole, was sufficient to withstand the special demurrer on the these grounds. See State v. Pittman, 302 Ga. App. 531, 534-535 (690 SE2d 661) (2010) (finding indictment that in one count tracked the generic language of OCGA § 16-14-4(a) and then in other counts included detailed predicate acts was sufficient to withstand special demurrer).

(ii) Predicate acts.

We reject the defendants’ argument that the indictment does not clearly specify the predicate acts alleged against them. As noted above, Count 1 provides that the defendants engaged in

a pattern of racketeering activity, as more particularly described in this count and this indictment, which counts are incorporated herein by reference as if fully set forth.... The pattern of racketeering activity consisted of the following: ... the accused did commit the offense of Violation of the Georgia Controlled Substances Act: Unauthorized Distribution (OCGA § 16-13-43), in that said accused unlawfully obtained possession of Oxycodone, a Schedule II Controlled Substance, by withholding information from various practitioners. . . .

More succinctly, Count 1 specifies that the pattern of racketeering activity was unlawfully obtaining oxycodone, and it incorporates as predicate acts the remaining counts of the indictment charging the defendants with unlawfully obtaining oxycodone.

Two of the counts against only Mayfield, Counts 12 and 13, allege that she unlawfully obtained hydrocodone, not oxycodone. Hydrocodone and oxycodone, although both opioids, are depicted as two different controlled substances in our Code. See OCGA § 16-13-26 (1) (A) (ix), (xiv). To the extent that Mayfield argues that the word “counts” means that the hydrocodone counts against her are also charged as predicate acts, we disagree. The indictment is specific: it alleges that the defendants’ unlawfully obtaining possession of oxycodone amounted to a pattern of racketeering activity. And to the extent the word “counts” can be read to include Counts 12 and 13 — in spite of the sentence specifying that it is oxycodone at issue in the RICO count — this is mere surplusage. “An allegation in an indictment that is wholly unnecessary to constitute the offenses charged is mere surplusage.” Fair v. State, 284 Ga. 165, 167 (2) (a) (664 SE2d 227) (2008) (citation and punctuation omitted). “Mere surplusage will not vitiate an indictment....” State v. Corhen, 306 Ga. App. 495, 499 (2) (700 SE2d 912) (2010) (citation omitted). Reading the word “counts” to include Counts 12 and 13

Decided March 24, 2016

Thompson Singer, Janice Singer Capek; Garland, Samuel & Loeb, Amanda R. Clark Palmer, for appellants.

Daniel J. Porter, District Attorney, Stephen A. Fern, Assistant District Attorney, for appellee.

is not essential to charge an offense under Count 1 ... so [such a reading] may be omitted without affecting the validity of the individual charges. . . . [T]o the extent that the language is confusing to [Mayfield] because it fails to notify [her] as to what [predicate acts she] must defend against, disregarding or omitting [such a reading of] the language as surplusage resolves that confusion.

Id. at 499 (2).

Judgment affirmed.

Dillard and Rickman, JJ., concur.

       In 2015, the General Assembly revised OCGA § 16-14-3, and a substantially similar provision is now found at OCGA § 16-14-3 (5) (A) (xxxiv).


source: Caselaw Access Project

author: McFADDEN, Judge. RICKMAN, Judge,

license: Public Domain

text:
    A15A1834.
    BLACKMON v. THE STATE.
    (785 SE2d 59)
   McFADDEN, Judge.

After a jury trial, Willie Blackmon was convicted of two counts of rape, two counts of aggravated child molestation, and two counts of child molestation against minor child S. L. Blackmon appeals, asserting that his trial counsel was ineffective in failing to object to inadmissible hearsay that bolstered S. L.’s credibility, in failing to object to improper bolstering of S. L.’s credibility by witnesses opining as to her truthfulness, and in failing to object to an improper jury charge on prior consistent statements. We agree that trial counsel’s performance was both deficient and prejudicial. Accordingly, we reverse the convictions, but find that Blackmon may be retried on the charges since there was sufficient evidence to support the convictions. See Williams v. State, 268 Ga. 488, 489 (491 SE2d 377) (1997) (retrial is not prohibited where reversal is due to trial error rather than the sufficiency of the evidence).

1. Sufficiency of the evidence.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Owens v. State, 334 Ga. App. 203 (778 SE2d 830) (2015).

So viewed, the evidence shows that Blackmon was the boyfriend of the mother of S. L. He began living with the mother and her three children, including S. L., in 2003 or 2004. In February 2008, when S. L. was 14 years old, she called her mother from school because she had stomach pains. The mother called Blackmon and asked him to pick her up from school. Blackmon picked up S. L. from school and took her to the doctor. S. L. was diagnosed with and given medications for a stomach ulcer and a yeast infection.

When they arrived home, Blackmon told the mother that the doctor had said that S. L. was sexually active. The mother then questioned S. L., who said that she was having sex with a boy from the neighborhood. Approximately an hour later, after the mother had said that she would have to talk to the boy’s parents, S. L. told her mother that she had lied about the boy. The mother sent S. L. to her room and told her that they would talk about it later.

Several days later, S. L.’s aunt questioned S. L. about the yeast infection medication, and S. L. then told her aunt that Blackmon had been having vaginal and oral sex with her since she was approximately 12 years old. The aunt called S. L.’s mother and told her what S. L. had said. S. L. subsequently told her mother that Blackmon had sexually abused her. S. L. described discoloration on Blackmon’s thighs that the mother testified was only visible when he was naked; and S. L. said she had once bitten Blackmon’s penis, which was consistent with a mark the mother had seen on his penis. The police were contacted, and officers came to the mother’s house, where they interviewed both S. L. and Blackmon, who denied any sexual abuse. The police seized a bedspread from S. L.’s bed for DNA testing, but the crime laboratory test results were negative for the presence of DNA. A doctor’s physical examination of S. L. conducted approximately three weeks after the last alleged incident of abuse did not reveal any injuries or other physical evidence.

Having reviewed the evidence in the light most favorable to the verdict, we conclude that S. L.’s “testimony standing alone [describing the alleged sexual abuse by Blackmon] was sufficient to support the verdict, and issues of consistency and credibility were for the jury to decide.” Jackson v. State, 334 Ga. App. 469, 473 (2) (779 SE2d 700) (2015) (citations omitted). See also Ruffin v. State, 333 Ga. App. 793 (1) (777 SE2d 262) (2015) (“victim’s testimony, standing alone, would have been sufficient to authorize a verdict of guilty”).

2. Ineffective assistance of counsel.

Blackmon contends that his trial counsel was ineffective in failing to object to inadmissible hearsay testimony from multiple witnesses recounting out-of-court statements made by S. L., and in failing to object to the trial court’s jury charge on prior consistent statements. To prevail on these claims, Blackmon must show both that his counsel’s performance was deficient and that the deficient performance so prejudiced him that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been different. See McDuffie v. State, 298 Ga. 112, 115 (2) (779 SE2d 620) (2015); Long v. State, 287 Ga. 886, 891 (4) (700 SE2d 399) (2010). Blackmon has made both of these showings.

(a) Failure to object to inadmissible hearsay.

At the trial, the state presented six witnesses who testified about out-of-court statements made by S. L. when she was 14 years old describing the alleged sexual abuse by Blackmon. The first two witnesses presented by the state were S. L.’s aunt and mother, both of whom testified, among other things, about statements that S. L. had made alleging that Blackmon had sexually abused her by inserting his penis into her mouth and vagina. S. L. herself then testified, after which the state introduced testimony from four witnesses involved in the investigation who recounted statements that S. L. had made to them describing the alleged acts of sexual abuse by Blackmon. A police sergeant who interviewed S. L. testified about S. L.’s statements that Blackmon had forced her to perform oral sex and had engaged in sexual intercourse with her. A doctor testified that S. L. said Blackmon had forced her to have sex, and the doctor recited other statements made by S. L. describing the alleged abuse. A forensic interviewer testified about S. L.’s statements alleging sexual abuse by Blackmon. And the director of forensic services for the district attorney’s office also gave testimony recounting out-of-court statements made to her by S. L.

“Hearsay is testimony in court ... of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” Bates v. State, 322 Ga. App. 319, 327 (5) (744 SE2d 841) (2013) (citation, punctuation and footnote omitted). Here, Blackmon’s trial counsel failed to raise hearsay objections to any of the six witnesses’ testimony about the out-of-court statements made by S. L. At the motion for new trial hearing, trial counsel admitted that there was no strategic reason why she failed to raise hearsay objections to such testimony. Instead, she acknowledged her mistakes, attributing her failure to object to her being “a bonehead,” “worn out,” and “overwhelmed.”

We note that in denying Blackmon’s ineffective assistance claim on this ground, the trial court did not find that the out-of-court statements by S. L. were admissible under the Child Hearsay Statute. Presumably, the court made no such finding because, as Blackmon points out in his appellate brief, without any refutation by the state, the Child Hearsay Statute in effect at the time of his 2011 trial, former OCGA § 24-3-16, provided an exception to hearsay for a “statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child[.]” (Emphasis supplied.) See Cobb v. Hart, 295 Ga. 89, n. 1 (757 SE2d 840) (2014) (noting that “[ejffective January 1, 2013, the law governing child hearsay is now codified at OCGA § 24-8-820”). “The clear wording of the statute indicates that the age of the child at the time the statements were made is determinative of their admissibility under the statute. [Cit.]” Darden v. State, 206 Ga. App. 400, 401 (1) (425 SE2d 409) (1992) (physical precedent). Thus, because S. L. was not under 14 years old at the time she made the statements, they were not admissible under the Child Hearsay Statute. See Currington v. State, 270 Ga. App. 381, 387 (4) (606 SE2d 619) (2004) (victim “was not a child under the age of 14 when she made the statement at issue, so the Child Hearsay Statute was inapplicable”). See also Cobb, supra at 90-91 (2).

However, the trial court found, and the state argues on appeal, that Blackmon’s counsel was not ineffective in failing to object to the testimony about S. L.’s out-of-court statements because such testimony was admissible as prior consistent statements. Indeed,

[s]ince 1985, Georgia law has allowed certain prior consistent statements of a witness to be admitted as substantive evidence. See Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). In 1998, [the Georgia Supreme] Court clarified that a witness’s prior consistent statement is “admissible only where (1) the veracity of a witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination.” Woodard v. State, 269 Ga. 317, 320 (496 SE2d 896) (1998), overruled on other grounds by Bunn v. State, 291 Ga. 183 (728 SE2d 569) (2012).

Cowart v. State, 294 Ga. 333, 339 (4) (a) (751 SE2d 399) (2013).

In denying Blackmon’s motion for a new trial, the trial court cited this standard and found that the veracity of S. L.’s testimony had been placed in issue during her cross-examination, thereby rendering her prior consistent statements admissible as substantive evidence. The trial court found: “The statements were introduced after S. L.’s credibility was placed into question and as such were not inadmissible hearsay. ... In response, the [s]tate was allowed to introduce evidence of her prior consistent statements.” (Emphasis supplied.) But the rule is not so broad.

[T]he [trial court] overlooked] what [the Georgia Supreme] Court said in Woodard, and has repeated many times since, about how a witness’s veracity must he challenged to allow the introduction of his prior consistent statement: A witness’s veracity is placed in issue so as to permit the introduction of a prior consistent statement only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination. As stated by a well-respected commentator: “Thus, to rebut a charge that a witness is motivated or has been influenced to testify falsely or that his testimony is a recent fabrication, evidence is admissible that he told the same story before the motive or influence came into existence or before the time of the alleged recent fabrication. In those circumstances, the prior consistent statement is defined as not hearsay and thus is admitted into evidence.” Unless a witness’s veracity has affirmatively been placed in issue, the witness’s prior consistent statement is pure hearsay evidence, which cannot be admitted merely to corroborate the witness, or to bolster the witness’s credibility in the eyes of the jury. Woodard, 269 Ga. at 320. . . . Put another way, to be admissible to refute the allegation of recent fabrication, improper influence, or improper motive, the prior statement must predate the alleged fabrication, influence, or motive. If the statement was made later, proof of the statement does not assist the jury to evaluate the witness’s testimony because the reliability of the statement is subject to the same doubt as the trial testimony.

Cowart, supra at 339-340 (4) (a) (citations and punctuation omitted; emphasis in original).

Here, the trial court erroneously found that all of the testimony about S. L.’s out-of-court statements was introduced by the state after S. L.’s credibility had been placed in issue. The trial court overlooked the fact that the state’s first two witnesses, the aunt and mother, both testified about S. L.’s out-of-court statements before S. L. herself was even called to testify. Thus, the testimony of the aunt and the mother could not have been introduced by the state to rebut a charge of recent fabrication, improper influence, or improper motive raised during cross-examination of S. L.

Since prior consistent statements are admissible only to rebut a charge that a witness is motivated or has been influenced to testify falsely or that her testimony is a recent fabrication, and the veracity of [S. L. had not yet been] affirmatively placed in issue, the [aunt and mother’s testimony about her] prior consistent statements [was] pure hearsay and inadmissible to corroborate [S. L.’s subsequent testimony] or bolster [her] credibility before the jury.

Baugh v. State, 276 Ga. 736, 739 (2) (585 SE2d 616) (2003) (citations and punctuation omitted).

Moreover, contrary to the trial court’s finding, during the cross-examination of S. L., trial counsel for Blackmon did not raise an affirmative charge of recent fabrication, improper influence, or improper motive. See Cowart, supra; Baugh, supra at 738 (2). Indeed, after the cross-examination ended, the state did not identify or claim any affirmative charges of recent fabrication, improper influence, or improper motive that it wanted to refute on redirect examination of S. L. by introducing her prior consistent statements. Rather, after S. L. left the witness stand, the state simply elicited the improper hearsay testimony about S. L.’s prior out-of-court statements from four other witnesses without any objection from Blackmon’s counsel. Compare Cowart, supra at 339 (4) (when cross-examination of witness ended, state sought to introduce his prior statement on redirect, but defendants objected on ground that proffer was not an admissible prior consistent statement).

While it did not do so at trial, on appeal the state identifies one charge of fabrication purportedly raised by Blackmon’s counsel; the state claims that during her opening statement, Blackmon’s counsel argued that S. L. had “fabricated the entire molestation to cover up a consensual sexual relationship she was having with someone else.” However, the state’s claim disregards the legal requirement that to authorize admission of a prior consistent statement, an affirmative charge of recent fabrication must be raised during cross-examination, not during opening statements. Cowart, supra. Furthermore, the state has not cited any part of the transcript at which this argument was purportedly made by Blackmon’s counsel, and our review of trial counsel’s entire opening statement has not revealed any such argument. Although trial counsel did refer to S. L.’s initial statement to her mother that she was having sex with a boy in the neighborhood and S. L.’s subsequent retraction of that statement, counsel never made any affirmative claim that S. L. had recently fabricated the allegations of abuse by Blackmon to cover up another sexual relationship.

Moreover, even if we assume for the sake of argument that Blackmon’s counsel had in fact raised such a charge of fabrication, it was not a recent fabrication. The purported “motive to fabricate that [the state] allege[s S. L. had] when [s]he testified at trial— [to cover up another sexual relationship] — arose no later than the time [S. L.] made [her initial outcries to her aunt and mother].” Cowart, supra at 341 (4) (a) (emphasis supplied). In fact, such a purported motive to fabricate likely arose prior to those initial outcries when the mother announced to S. L. that she would speak to the parents of the boy whom S. L. had initially identified as the person with whom she was having a sexual relationship, which preceded S. L.’s outcry against Blackmon. Indeed, the testimony given by S. L. at trial is the same story that she told her aunt and mother during her initial outcry, and thus it did not predate the alleged improper motive to cover up a sexual relationship with another person. Because S. L. did not tell the same story before the alleged motive came into existence, “the trial court erred in admitting [testimony of her out-of-court] statement^], which did not qualify as ... prior consistent statement [s] and [were] instead [pure hearsay] improperly used to bolster the witness’s credibility.” Cowart, supra at 341 (4) (a) (footnote omitted). Compare Cobb v. Hart, supra at 91-92 (2) (prior consistent statement admissible after veracity of witness challenged on cross-examination by defense counsel questioning whether just before trial the witness had met and colluded with another witness to make their trial testimonies consistent with each other).

As there was no strategic reason not to object, it follows that trial counsel’s failure to object to any of the improper hearsay testimony constituted deficient performance. See Laye v. State, 312 Ga. App. 862, 872 (5) (720 SE2d 233) (2011) (lack of objection to hearsay was deficient performance). But our inquiry does not end there, because we must also determine if Blackmon was prejudiced such that there is a reasonable probability that, but for counsel’s deficient performance, the result of the trial would have been different. Mann v. State, 252 Ga. App. 70, 73 (1) (555 SE2d 527) (2001). The evidence against Blackmon was not overwhelming — there was no physical evidence and “[t]he only evidence linking [Blackmon] to the crimes alleged against him arose out of the statements made by [S. L.].” Id. Consequently, “[t]he [s]tate’s case depended on [S. L.’s] credibility.” Id. at 74 (1). And as explained above, that credibility was improperly bolstered by the erroneous admission of hearsay testimony from multiple witnesses repeating S. L.’s prior statements about the alleged abuse. “[W]e cannot conclude that defense counsel’s failure to properly object and have this testimony removed from the jury’s consideration had no effect on the verdict. [Cit.]” Id. Accordingly, the judgment of conviction must be reversed, and Blackmon is entitled to a new trial. See Walker v. State, 296 Ga. App. 531, 535 (1) (b) (675 SE2d 270) (2009) (child molestation conviction reversed where there was no evidence of crime other than victim’s testimony and trial counsel failed to object to testimony improperly bolstering victim’s credibility); Orr v. State, 262 Ga. App. 125, 129 (3) (584 SE2d 720) (2003) (ineffective assistance of counsel mandated a new trial where there was no physical evidence, victim’s testimony was the only evidence against defendant, and counsel failed to object to testimony bolstering victim’s credibility).

(b) Failure to object to testimony opining as to S. L. ’s truthfulness.

Blackmon claims that his trial counsel was also ineffective in failing to object to testimony from two witnesses, S. L.’s mother and the director of forensic services for the district attorney’s office, opining that S. L. was telling the truth. We agree with Blackmon in regard to the mother’s testimony, but not as to the testimony of the director of forensic services.

A witness’ credibility may not be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth. Credibility of a witness is a matter solely within the province of the jury. It is not improper bolstering, however, for a witness to express an opinion as to whether objective evidence in the case is consistent with the victim’s story.

Roberts v. State, 322 Ga. App. 659, 665 (3) (d) (745 SE2d 850) (2013) (citation omitted).

Here, the director of forensic services did not give an opinion as to the truthfulness of S. L.’s allegations, but instead merely testified that objective evidence in the case was consistent with S. L.’s story. Thus, the lack of an objection to such testimony was not deficient performance since “it is not ineffective assistance for trial counsel to fail to make a meritless objection.” Roberts, 322 Ga. App. at 665 (3) (d) (citations omitted).

However, S. L.’s mother went beyond merely testifying about consistency between the objective evidence and S. L.’s story, and offered opinions as to S. L.’s truthfulness. In explaining why she questioned S. L. about the appearance of Blackmon’s “private area,” the mother testified: “Because I wanted to see ... was she telling the truth. And from what she described, she was telling the truth.” The mother also testified that initially she did not know whether to believe S. L.’s allegations, but “[i]n my heart now, I truly believe her.”

Counsel’s failure to object to the mother’s improper bolstering testimony opining as to S. L.’s truthfulness constituted deficient performance, and given the lack of evidence against Blackmon beyond that arising out of S. L.’s statements, “we cannot conclude that but for counsel’s deficient performance, the outcome of this trial... would not have been different.” Walker, supra. Furthermore, “[wjhen considering the prejudice prong for multiple claims of ineffective assistance of counsel, we look to whether the cumulative effect of counsel’s alleged errors leads to a reasonable probability that the outcome of the trial would have been different.” Dority v. State, 335 Ga.App. 83, 107 (780 SE2d 129) (2015) (citation and punctuation omitted). In this case, Blackmon was prejudiced by the cumulative effect of counsel’s errors in failing to object to the mother’s improper opining as to S. L.’s credibility and, as discussed above, in failing to object to multiple instances of hearsay that also improperly bolstered the credibility of S.L.

(c) Failure to object to jury charge on prior consistent statements.

The trial court charged the jurors on prior consistent statements, instructing them that they were authorized to consider such statements “as substantive evidence.” As explained above, there were no properly admitted prior consistent statements in this case. Consequently, there was no basis for the trial court to instruct the jurors on prior consistent statements since a jury charge should be “adjusted to the evidence. [Cit.]” State v. Braddy, 254 Ga. 366, 368 (330 SE2d 338) (1985). See also Stephens v. State, 289 Ga. 758, 759 (1) (a) (716 SE2d 154) (2011) (instruction on prior consistent statements should only be given where the circumstances of an unusual case suggest that the jury may have the mistaken impression that it cannot consider a prior consistent statement as substantive evidence).

Trial counsel’s failure to object to the unwarranted prior consistent statements jury charge was deficient performance, and the cumulative effect of this error, combined with counsel’s errors in failing to object to the hearsay testimony about S. L.’s prior statements, clearly prejudiced Blackmon since the charge authorized the jury to consider the improperly admitted hearsay testimony as substantive evidence against him. Under these circumstances, there is a reasonable probability that, but for counsel’s errors, the outcome of the trial would have been different, and thus “the trial court erred by denying [Blackmon’s] motion . . . for new trial based upon the ineffectiveness of his defense counsel for failing to object to the charge on [prior consistent statements].” Dodd v. State, 324 Ga. App. 827, 835 (2) (752 SE2d 29) (2013).

3. Jury charge on prior consistent statements.

In a separate enumeration, Blackmon contends that the trial court erred by giving the jury charge on prior consistent statements. As noted above, trial counsel failed to object to the charge even though there were no admissible prior consistent statements to support it. Because this issue was not preserved for appellate review by an objection at trial, it is subject to review for plain error. Thomas v. State, 297 Ga. 750, 752 (2) (778 SE2d 168) (2015). See also OCGA § 17-8-58 (b). But because of our holdings above reversing the convictions due to ineffective assistance of counsel, we need not address this issue.

Judgment reversed.

Rickman, J., concurs specially in Divisions 1 and 2 (a) and in judgment only in Divisions 2 (b), 2 (c) and 3. Ellington, P. J., concurs in judgment only.

RICKMAN, Judge,

concurring specially.

I have reviewed the record in this matter, and concur that reversal is required for the reasons set forth in Division 2 (a) of the majority opinion. I write separately to express a deep and genuine concern that has echoed repeatedly through this Court’s criminal jurisprudence.

To be sure, prosecutors and criminal defense attorneys have difficult jobs. The lives of victims and their families, as well as the lives of defendants and their families, hang in the balance with each and every serious criminal case. The stakes in a criminal courtroom are as high as can be found anywhere in our justice system. It is completely understandable, given the time and emotional expenditure associated with the arduous task of taking another human being’s liberty in one’s hands, that deficiencies in performance due to exhaustion and burn-out can result.

Nevertheless, there are three obligations that continue to be ignored by some practicing members of the Georgia bar. First, there is an obligation for the lawyer who feels burned out and ineffective to recognize it and either withdraw from a case or seek other assistance until the lawyer is prepared to perform competently. See Georgia Rules of Professional Conduct, Rule 1.1 (“A lawyer shall provide competent representation to a client. Competent representation . . . means that a lawyer shall not handle a matter which the lawyer knows or should know to be beyond the lawyer’s level of competence without associating another lawyer who the original lawyer reasonably believes to be competent to handle the matter in question.”). Second, there is an obligation on the part of any lawyer who may be responsible for supervising a struggling lawyer to recognize when that lawyer needs assistance and/or to be replaced. See Georgia Rules of Professional Conduct, Rule 5.1 (b) (“A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Georgia Rules of Professional Conduct.”). Third, there is an obligation on our profession to keep an ineffective attorney out of the courtroom until he or she is fully prepared to provide competent representation. See Georgia Rules of Professional Conduct, Preamble (11) (“Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.”).

Decided March 24, 2016.

Kevin A. Anderson, for appellant.

In a number of cases that have come before this Court, none of the foregoing obligations appeared to have been taken as seriously as they should have been. See, e.g., Nejad v. State, 296 Ga. App. 163, 170 (674 SE2d 60) (2009) (Smith, J., concurring specially) (commenting that “[t]he developing trend of emphatically and even eagerly testifying to one’s own incompetence or misconduct is dangerous to the administration of justice, particularly if it is allowed to continue without any consequences for the testifying trial counsel”); see also Carrie v. State, 298 Ga. App. 55, 62, n. 23 (679 SE2d 30) (2009) (recognizing that “[w]hether counsel’s assessment of his performance was an honest admission of incompetency or a disingenuous attempt to secure a new trial for his former client is not for our determination,” but noting that it is a perversion of justice to allow such instances to continue without any consequences to trial counsel).

In 2009, we noted that instances of trial counsel claiming his or her own ineffectiveness without consequence was a “worrisome trend” for this Court. See Nejad, 296 Ga. App. at 169. This particular case does not involve trial counsel opining as to her own effectiveness, and rightfully so. See Hartsfield v. State, 294 Ga. 883, 888 (757 SE2d 90) (2014). However, we continue to witness admissions that point to ineffectiveness and the resulting findings, with apparently no response or consequence. A consequence need not even be a punitive consequence; but rather some meaningful attempt to keep ineffective attorneys out of the criminal courtroom.

Paul L. Howard, Jr., District Attorney, Joshua D. Morrison, Assistant District Attorney, for appellee.


author: DOYLE, Chief Judge.

text:
    A15A2337.
    MAYS v. THE STATE.
    (785 SE2d 408)
   DOYLE, Chief Judge.

Terry Jones Mays appeals the trial court’s order denying in part her motion to suppress inculpatory statements she made to a Georgia Bureau of Investigation (“GBI”) agent without receiving warnings pursuant to Miranda v. Arizona, as applied by Howes v. Fields, during an allegedly custodial interrogation. The trial court denied in part the motion to suppress on the ground that Mays was not in custody at the time she made the inculpatory statements so the GBI agent was not required to give a Miranda warning. On appeal, Mays contends that the trial court erred by so finding. For the reasons that follow, we vacate the order denying in part the motion to suppress and remand for further proceedings.

When the facts material to a motion to suppress are disputed, it generally is for the trial judge to resolve those disputes and determine the material facts. This principle is a settled one, and [the Supreme] Court has identified three corollaries of the principle, which limit the scope of review in appeals from a grant or denial of a motion to suppress in which the trial court has made express findings of disputed facts. First, an appellate court generally must accept those findings unless they are clearly erroneous. Second, an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. And third, an appellate court generally must limit its consideration of the disputed facts to those expressly found by the trial court.
In some cases, some or all of the material facts may be undisputed, as where the defendant concedes a fact unhelpful to his cause in his motion to suppress, where the State admits a fact unhelpful to its case in connection with the motion, or where the State and defendant expressly stipulate to a fact. In such cases, an appellate court properly may take notice of the undisputed facts —■ even if the trial court did not — without interfering with the prerogative of the trial court to resolve disputes of material fact.

So viewed, the record shows that Mays was on probation for reckless driving and a moving violation, and her terms of probation included a requirement that she complete 100 hours of community service by December 7, 2013. On December 4, 2013, however, Mays tested positive for alcohol during a screen and admitted to consuming alcohol, which resulted in her confinement on December 6, 2013, for violation of the terms of her probation. That same day, the State filed a petition to revoke Mays’s probation on the grounds that, among other violations, (1) she failed alcohol screens on three occasions and (2) she failed to complete 100 hours of community service by the required date.

Prior to being taken into custody, Mays had submitted a letter to probation services from Marietta Chapel African Methodist Episcopal Church, signed by Reverend Joseph Comeaux and dated November 30,2013, stating that Mays had completed 41 hours of community service at his organization. While Mays was in jail, on December 10, 2013, Marietta City Councilman Amthony Coleman provided to the municipal court for Mays’s revocation hearing a packet of documents containing a second letter from Reverend Comeaux, post-dated December 15, 2013, claiming therein that Mays had completed 59 hours of community service. Also on December 10, 2013, Reverend Comeaux delivered in person to probation services a third letter, which was not on church letterhead and which purported to “document [his earlier] telephone conversation” during which he claimed that Mays had completed 100 hours of community service at his church.

Probation services found suspicious the composition and timing of these letters, which led the Marietta Police Department to open an investigation into Coleman’s involvement in any false report of Mays’s community service. Because the councilman was involved, the police department contacted the GBI to conduct the investigation. Thereafter, on December 13, 2013, while Mays was in jail awaiting her revocation hearing, GBI agent Jan Roulain interviewed her.

Following the investigation, on August 14, 2014, Mays and Coleman were indicted in the underlying case for one count of violating the Racketeer Influenced and Corrupt Organizations Act and three counts of making false statements in relation to the letters. Mays filed a motion to suppress the statements she made to Roulain, arguing that Roulain’s interview constituted a custodial interrogation requiring Miranda warnings prior to questioning.

At the hearing on the motion to suppress, the State submitted into evidence an audio recording of Roulain’s interview of Mays, and Mays submitted a transcript of the interview. Both the audio and transcript show that Roulain began the interview stating:

Okay, today’s date is ... Friday, December 13. The time is 3:23[, and] I’m interviewing Terry Mays at the [jail],... I’m talking to her about her th’ you you’ve been umm I don’t want to talk about your crime about what why you’re here now umm so just so you understand that [okay. W]e don’t want to talk about that[,] I just want to talk about community service. Did you have to do community service as part of your original. . . .”
MAYS: probation.

Roulain provided no Miranda warnings, and she did not state to Mays that she was free to leave or to decline to answer the questions until over halfway through the interview. The questions dealt largely with Mays’s community service probation requirement, whether there was a required date by which she had to complete the requirement, and when Mays had completed the requirement. Many of Mays’s answers were nonresponsive or dealt with ancillary personal matters, including her divorce, bankruptcy, and home foreclosure, and she declined to discuss the individual who had recommended that she complete her, community service at the church.

At the motion to suppress hearing, Roulain testified that, while she could not recall, she believed Mays was not handcuffed or shackled during the interview, though Mays was escorted to the room by officers; Roulain was unaware whether the door behind Mays was locked, but she recalled that the room was not overly dark.

The trial court found that Roulain interviewed Mays for about twenty-three minutes and did not Mirandize Mays prior to the interview, which was conducted in a “fairly well-lit” interview room about eight to ten feet square divided by a plexiglass window. The room normally was reserved for attorney-client interactions. Officers escorted Mays to and from the room and closed her into the room when they left her with Roulain.

In its order, the court found that the circumstances surrounding the questioning did not rise to the level to constitute “in custody” for purposes of the Miranda analysis because (1) the interrogation was brief; (2) “the room, while not luxurious . . . , did not exert coercive pressure”; (3) the tone between the two was conversational; (4) Roulain did not threaten or raise her voice at Mays; (5) Roulain told Mays she was free to leave the interrogation; (6) Mays ended the questioning herself; and (7) Mays refused to answer when questioned about the identity of the person who recommended the church for performance of her community service, demonstrating that she knew she could refuse to answer. Thus, the trial court denied in part the motion to suppress with regard to the initial portion of the statement; however, the court did find that Mays had invoked her right to an attorney midway through the interview, and thus, granted the motion with regard to that portion of the interview that took place after the invocation.

In a single enumeration of error, Mays argues the trial court erred by finding that the statements she made to Roulain about the community service letters and her purported completion of the hours while she was in jail on the probation revocation charge were not made during a custodial interrogation subject to the Miranda-warning requirement as applied in Howes v. Fields.

A person is considered to be in custody and Miranda warnings are required when a person is (1) formally arrested or (2) restrained to the degree associated with a formal arrest. Unless a reasonable person in the suspect’s situation would perceive that [she] was in custody, Miranda warnings are not necessary. Thus, the [relevant] inquiry is how a reasonable person in [Mays’s] position would perceive [her] situation.

There is no bright-line rule, however, that after a defendant has been remanded to jail or prison that she is always in custody for purposes of Miranda. The question is whether the “circumstances [of the interview] are thought generally to present a serious danger of coercion.”

In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of the objective circumstances of the interrogation, a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave. And in order to determine how a suspect would have gauged his freedom of movement, courts must examine all of the circumstances surrounding the interrogation. Relevant factors include the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, . . . the release of the interviewee at the end of the questioning,... [and] whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.

Here, the trial court found that the questioning was brief and nonthreatening, took place during the afternoon at approximately 3:00 p.m., in a room that was not overly confining in which Roulain was separated from Mays by a glass partition. We agree with the trial court that these factors militate in favor of finding that Mays was not in custody. Nevertheless, taking the whole circumstances of the encounter into account, the subject of the questions and environment “presented] the same inherently coercive pressures as the type of station house questioning at issue in Miranda,” and thus, the trial court erred by concluding that Mays was not in custody and by failing to suppress Mays’s entire statement.

Here, Mays had been in jail for one week after violating terms of her probation, including her failure to complete community service, which was the main focus of Roulain’s questions, and Mays was scheduled to appear before the court on the matter less than one week after the questioning. As the United States Supreme Court explained in Howes,

[i]n the paradigmatic Miranda situation — a person is arrested in [her] home or on the street and whisked to a police station for questioning — detention represents a sharp and ominous change, and the shock may give rise to coercive pressures. A person who is cut off from his normal life and companions, and abruptly transported from the street into a police-dominated atmosphere, may feel coerced into answering questions.

Mays was not serving a term in prison, and therefore, it was not her normal living situation. Although the encounter with Roulain was brief, and it is not clear whether Mays was shackled, handcuffed, or restrained, Roulain failed to tell Mays she was free to leave until over 15 minutes into the 23-minute questioning. “Unambiguously advising a defendant that [she] is free to leave and is not in custody is a powerful factor in the” determination of custody for Miranda purposes.

In Howes, the Supreme Court explained that compared to a prisoner sentenced to a term of years, “a person [who] is arrested and taken to a station house [and] questioned may be pressured to speak by the hope that, after doing so, he will be allowed to leave and go home.” Mays’s situation is similar to that of an arrestee — she had not been sentenced and was awaiting a hearing on the State’s petition to revoke her probation, and therefore, the risk of coercive pressure was greater than that of a prisoner. The State’s attempt to distinguish the questioning on the basis that Roulain was investigating a falsified report of community service hours rather than a failure to complete community service hours does not remove the coercion a reasonable person in Mays’s situation would have felt being questioned about the matter related to the State’s pending petition to revoke her probation so near her hearing date.

Decided March 4, 2016 —

Reconsideration denied March 25, 2016 —

Steve T. Woodman, Benjamin D. Goldberg, for appellant.

D. Victor Reynolds, District Attorney, John S. Melvin, Amelia G. Pray, Assistant District Attorneys, for appellee.

Finally, the trial court’s findings (1) that Mays ended the questioning herself and (2) that she declined to answer a question about another person’s identity do not support its conclusion that she was not in custody because the standard is not a subjective one. As the Supreme Court of Georgia has explained, “the subjective views of the interrogator and suspect are not dispositive of whether a person is in custody for the purposes of Miranda warnings. . . . The relevant inquiry is how a reasonable person in the suspect’s position would perceive his situation.” Based on the factors outlined above, a reasonable person in Mays’s situation would not have perceived that she was free to leave.

Accordingly, to the extent that the trial court denied Mays’s motion to suppress her full statement to Roulain on the basis that she was not in custody, the order is vacated and the case remanded for entry of an order consistent with this opinion.

Judgment vacated and case remanded.

Phipps, P J., andMercier, J., concur.

       384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

      _U. S._(132 SCt 1181, 182 LE2d 17) (2012).

       After granting in part and denying in part Mays’s motion to suppress, the trial court issued a certificate of immediate review, and this Court granted Mays’s application for interlocutory appeal.

         (Citations and footnotes omitted.) Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015), citing Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d 148) (2013). See also State v. Chulpayev, 296 Ga. 764, 772, n. 5 (770 SE2d 808) (2015) (applying the standard of review enunciated in Hughes, 296 Ga. at 746 (1), and Brown, 293 Ga. at 803 (3) (b) (2) to a motion to suppress statements pursuant to Miranda).

        Hughes, 296 Ga. at 746, n. 4. See also Mack v. State, 296 Ga. 239, 241-242 (765 SE2d 896) (2014).

       OCGA § 16-14-4 (b).

       OCGA § 16-10-20.

       It is not clear from the record whether Mays had invoked her right to counsel as to the petition for probation revocation, but it is unnecessary for our analysis in this instance because we conclude that Mays was subjected to a custodial interrogation. See, e.g., Mack, 296 Ga. at 245-246 (2) (b). Tellingly, near the end of the interview, Roulain asks Mays, “[y]ou were just arrested for the drinking violationf,] is that correct?” To which question Mays responds, apparently thinking that Roulain was referring to her conviction and not the probation violation, “fi]t was reduced to reckless driving.” Roulain then states, “okay, alright, okay so it didn’t have anything ... it is my understanding it didn’t have anything to do with your community service otherwise I wouldn’t be asking you about it without reading you your rights because I don’t want to violate any of your rights and you’re free to get up and walk out at any given time . . . .”

       (Citations omitted.) State v. Folsom, 285 Ga. 11, 12-13 (1) (673 SE2d 210) (2009).

       See Howes,_U. S. at_(II) (132 SCt at 1188-1189).

       Id. at_ail) (A) (132 SCt at 1189).

       (Citations and punctuation omitted.) Id. at_(III) (A) (132 SCt at 1189-1190).

       Id. at_(HI) (A) (132 SCt at 1190).

       (Citations and punctuation omitted.) Id.

        United States v. Brown, 441 F3d 1330, 1347 (II) (A) (11th Cir. 2006).

       Howes,_U. S. at_(III) (A) (132 SCt at 1191).

       See id.; See also Folsom, 285 Ga. at 13 (1) (“whether the police had probable cause to arrest and whether the defendant was the focus of the investigation are [also] irrelevant considerations for Miranda purposes”).

       (Citations and punctuation omitted.) Folsom, 285 Ga. at 12-13 (1) (“Unless a reasonable person in the suspect’s situation would perceive that he was in custody, Miranda warnings are not necessary. Thus, the relative inquiry is how a reasonable person in [the defendant’s] position would perceive his situation.”) (citation omitted).


author: McFadden, Judge.

text:
    A15A1901.
    MONROE COUNTY BOARD OF TAX ASSESSORS v. WILSON et al.
    (785 SE2d 67)
   McFadden, Judge.

The Monroe County Board of Tax Assessors filed a declaratory judgment action against George Wilson and other taxpayers who had filed notices of ad valorem tax appeals to the superior court, requesting a declaration that the appeals stand as dismissed with prejudice due to the failure to pay court filing fees. The board also sought attorney fees. After a hearing, the superior court granted the board’s request in part by declaring that the ad valorem tax appeals of those taxpayers who had not paid any filing fees should be dismissed, and denied the request in part by refusing to declare that the appeals of those taxpayers who had paid the $206 filing fee established by a prior court order should be dismissed. The trial court also denied the board’s request for attorney fees.

The board appeals, claiming that the trial court erred in failing to declare that all the landowners’ tax appeals should be dismissed for failure to be tried at the first available term of court after filing as required by OCGA § 48-5-311 (g) (4). However, the appeals have not yet been filed in superior court and thus that Code section does not apply. The board also claims that the trial court erred in finding that the filing fee is $206 per appeal. But the hoard has failed to show error as that finding was based on a prior court order that the board failed to include in the record. The board finally contends that the trial court erred in denying its request for attorney fees. However, the board failed to make any proffer as to the amount of such fees. Accordingly, we affirm.

At the outset, we note that our review in this case is hampered by a deficient record. The board has referred to prior mandamus actions filed by several taxpayers, seeking to compel the board to certify their appeals to the superior court. Apparently the trial court denied all of those actions, after which some of those taxpayers appealed to our Supreme Court. See Newton Timber Co. v. Monroe County Bd. of Tax Assessors, 295 Ga. 29 (755 SE2d 770) (2014). At the declaratory judgment hearing in this case, the board told the trial judge that it did not need to present evidence because most of the facts were in the record of those prior mandamus actions. However, the board failed to include any part of that record in this case. Our ability to properly review the matters raised on appeal is hindered when the appellant fails to ensure that the record is complete. Apple Investment Properties v. Watts, 220 Ga. App. 226 (469 SE2d 356) (1996). Nevertheless, we will address the claims of error based on the record before us.

1. OCGA § 48-5-311 (g) (4) (A).

The board contends that the trial court should have dismissed all of the appeals, including those of the taxpayers who have paid court filing fees because those appeals were not tried at the first available term of court as requiredby OCGA § 48-5-311 (g) (4) (A). However, the board’s reliance on that Code section is misplaced.

“OCGA § 48-5-311 (g) provides the means by which an aggrieved taxpayer may appeal to the superior court from a property tax ruling made by a county board of equalization.” Fitzpatrick v. Madison County Bd. of Tax Assessors, 292 Ga. 74, 75 (734 SE2d 397) (2012). The version of OCGA § 48-5-311 (g) (2) that was in effect at the time of the trial court’s ruling in this case provided that such an appeal by a taxpayer “shall be effected” by e-mailing, mailing or filing a notice of appeal with the county board of tax assessors within 30 days from the date on which the board of equalization’s decision was mailed. That same Code section further provided that the county board of tax assessors “shall certify to the clerk of the superior court the notice of appeal and any other papers specified by the person appealing[,]” and that at “the time of certification of the appeal, the [board] shall serve the taxpayer ... with a copy of the notice of appeal and with the civil action file number assigned to the appeal.” Former OCGA § 48-5-311 (g) (2).

Former OCGA § 48-5-311 (g) (4) (A) provided that such an “appeal shall be placed on the court’s next available jury or bench trial calendar, at the taxpayer’s election, following the filing of the appeal unless continued by the court upon a showing of good cause.” (Emphasis supplied.) The former Code did not expressly define what constituted “the filing of the appeal” as that term was used in that section. The board, relying on C. C. Leasing Corp. v. Bd. of Tax Assessors of Hall County, 143 Ga. App. 520 (239 SE2d 204) (1977), claims that “the filing of the appeal” under former OCGA § 48-5-311 (g) (4) (A) meant the taxpayer’s filing of the appeal with the board of tax assessors, not the board’s subsequent filing of the appeal with the superior court. But contrary to the board’s claim, C. C. Leasing held no such thing and provides no support for such a proposition. Indeed, that case did not even involve the issue of what constitutes “the filing of the appeal” that triggers the requirement that an ad valorem tax appeal be placed on the next available trial calendar under former OCGA § 48-5-311 (g) (4) (A) or its predecessor statute.

However, in McCauley v. Bd. of Tax Assessors, 243 Ga. 844 (257 SE2d 266) (1979), our Supreme Court addressed the issue and determined that it was the board’s certification of the appeal, not the taxpayer’s notice of appeal, that constituted the filing of the appeal in superior court. In applying an earlier version of the same provision set forth in former OCGA § 48-5-311 (g) (4) (A), the Supreme Court ruled that “the appeal was not officially filed in superior court until... the date of the board’s certification of the notice of appeal and filing of the statutorily required documents. Therefore, any effort by the taxpayer to have the case heard before that [certification] date would have been premature.” McCauley, supra at 845. The Supreme Court went on to hold that the taxpayer had complied with the statute “by requesting a jury trial at the earliest opportunity after his appeal was certified” by the board, and that any delay “was caused by the board’s tardiness in certifying the notice of appeal[.]” Id. at 846. Thus, as explained in McCauley, a county board of tax assessors’ certification of an appeal to the superior court constituted “the filing of the appeal” which would trigger the requirement under former OCGA § 48-5-311 (g) (4) (A) that the appeal be placed on the superior court’s next available trial calendar. See generally Glynn County Bd. of Tax Assessors v. Paulding, 270 Ga. App. 851 (608 SE2d 317) (2004) (affirming denial of motion to dismiss taxpayers’ appeals, which board had certified to superior court, where taxpayers showed reasonable excuse for not securing a trial during first term after filing); Haldi v. DeKalb County Bd. of Tax Assessors, 178 Ga. App. 521, 525-526 (3) (344 SE2d 236) (1986) (affirming dismissal of taxpayer’s appeal for failure to hold trial at first term after matter had been certified to the superior court and taxpayer failed to show excusable neglect).

(a) No certification of appeals.

In the instant case, the board has neither claimed, nor pointed to any evidence in the record showing, that it certified any of the appeals in question to the superior court. Indeed, at the hearing before the trial judge and in its appellate briefs, the board acknowledges that it has not certified the taxpayers’ appeals and that the appeals have not been filed in the superior court. Consequently, absent certification of the appeals, the “filing of the appeal” under former OCGA § 48-5-311 (g) (4) (A) has not occurred and thus the requirement that the case be placed on the first available trial calendar has not yet been triggered.

As the board correctly notes, in the Newton Timber case mentioned above, the Supreme Court ruled that the taxpayers involved in that appeal must pay the filing fees before the board certifies their appeals. Newton Timber, supra at 36-37 (1). In so doing, the Supreme Court expressly overruled Fayette County Bd. of Tax Assessors v. Oddo, 261 Ga. App. 707 (583 SE2d 537) (2003), which had held that there was no requirement under OCGA § 48-5-311 (g) (2) that a superior court clerk receive its filing fee before a tax appeal could be certified by the county board of tax assessors. Newton Timber, supra at 37 (1), n. 10. Thus, based on that ruling, the board contends that the lack of certification of the appeals to the superior court has been caused solely by the taxpayers’ delay in paying the required filing fees. That contention ignores the ongoing dispute between the parties that led to those mandamus actions and the earlier appeal. But even if the board’s contention is correct, it does not alter our analysis of the board’s claim of error based on former OCGA § 48-5-311 (g) (4) (A).

As the board has acknowledged, the former version of OCGA § 48-5-311 (g) set forth no deadline by which a taxpayer was required to pay the court filing fee, and it did not provide for dismissal of an appeal based on failure to pay the fee within any specified time. Likewise, that Code section provided no deadline by which the board was required to certify the appeal to the superior court. These gaps in the statutory scheme appear to have been addressed by the most recently modified version of OCGA § 48-5-311 (g) (2). But regardless of why there were delays in the payment of filing fees and the certification of appeals, the fact remains that the taxpayers’ appeals have not been certified and filed in the superior court. Therefore, OCGA § 48-5-311 (g) (4) (A) simply does not apply, and its mandate that the appeals be placed on the next available trial calendar “following the filing” will not take effect until the appeals have been certified by the board to the superior court.

Where, as here, the issue is a question of law, we owe no deference to the trial court’s ruling and apply a de novo standard of review. Fuciarelli v. McKinney, 333 Ga. App. 577 (773 SE2d 852) (2015). Because the board has failed to show any legal error based on the trial court’s refusal to declare that the taxpayers’ appeals stand dismissed pursuant to OCGA § 48-5-311 (g) (4) (A), this claim of error provides no basis for reversal of the trial court’s judgment.

(b) Newton Entities.

We note that one of the taxpayers specifically named in the trial court’s order as having paid filing fees is called the “Newton Entities.” The name “Newton Entities” was also used to refer to “various entities and individual family members of the Newton family” in the prior Supreme Court case involving mandamus cited above, but it did not identify those specific entities and family members. Newton Timber, supra at 29. In that case, the Supreme Court stated that the Newton Entities’ “tax appeals have been physically delivered to the superior court and ... the superior court has ruled that such appeals have been certified to it.” Id. at 37 (1). Thus, for any such certified appeals, the requirement of former OCGA § 48-5-311 (g) (4) (A) that they be placed on the next available trial calendar would apply.

However, the board has failed to show by the record that the Newton Entities in the instant case are the same taxpayers involved in that prior case. While the board has alluded to the same “Appellees” being involved in both cases, it has failed to support this factual assertion with citations to the record establishing which of the Newton Entities in our case are the same taxpayers discussed in the Supreme Court case. Moreover, as noted above, although at the hearing in this case the board expressly referred to facts allegedly appearing in the record of the mandamus cases, it failed to include any of those records in the instant case. While some, or even all, of the Newton Entities in the instant case may be the same taxpayers involved in the prior case, it is the board’s burden to support its factual assertions with citations to the record. See Court of Appeals Rule 25 (a) (1); Cox v. Erwin, 246 Ga. App. 439, 440 (1) (541 SE2d 69) (2000).

When an appellant omits evidence necessary for determination of issues on appeal affirmation is required. It is well established that the burden is on the party alleging error to show it by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm.

Griffin v. Travelers Ins. Co., 230 Ga. App. 665, 666 (497 SE2d 257) (1998) (citations and punctuation omitted).

Furthermore, even if we were to assume for purposes of this appeal that the Newton Entities are the same taxpayers in both cases, the board still has failed to carry its burden of showing by the record that the trial court abused its discretion in refusing to declare the appeals dismissed pursuant to OCGA § 48-5-311 (g) (4) (A). See Glynn County, supra at 853 (whether to dismiss for failure to obtain trial at the first available term is matter within the discretion of the trial court). Accordingly, we find no reversible error. “When there is nothing in the record to support the contention of error, there is nothing presented to this court for review.” City of Atlanta v. Starke, 192 Ga. App. 267, 269 (1) (c) (384 SE2d 419) (1989) (citation and punctuation omitted).

2. Amount of filing fees.

The board claims that the $206 filing fee set by the trial court was incorrect because the fee had increased to $207.50 approximately three months before the taxpayers paid their filing fees. “[Bjecause the question here turns on a factual issue resolved by the trial court after considering evidence presented ... we will uphold the trial court’s factual findings if there is any evidence to support them.” In re Estate of Huff, 287 Ga. App. 614, 614-615 (652 SE2d 203) (2007) (citation and punctuation omitted). Here, in finding that the filing fee was $206 per tax appeal, the trial court expressly relied on a prior order of the court setting the fee as that amount. The board failed to include that prior order in the record on appeal.

Decided March 25, 2016

Christian G. Henry, for appellant.

It is well established that the burden is on the party alleging error to show it affirmatively by the record, and that when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed. We do not have before us all the material upon which the trial court relied.

Acker v. Jenkins, 178 Ga. App. 393, 394 (1) (343 SE2d 160) (1986) (citations omitted). We therefore assume that the missing order supported the trial court’s finding of fact, and thus the court did not err in making that finding. See City of Atlanta, supra at 269 (1) (c) (under presumption of regularity of proceedings in a court of competent jurisdiction, we must assume the evidence supported the trial court’s ruling).

3. Attorney fees.

The board complains that the trial court erred in failing to grant it an award of attorney fees. However, the board did not present any proffer as to the amount or reasonableness of the fees requested, and has not cited any such evidence in the record.

An attorney cannot recover for professional services without proof of their value. Generally, a party will proffer the opinion testimony of his present counsel as well as that of other attorneys in an effort to show what constitutes a reasonable attorney fee in light of the litigation history of the case. An award of attorney fees is unauthorized if appellee failed to prove the actual costs of the attorney and the reasonableness of those costs.

Fiat Auto U.S.A. v. Hollums, 185 Ga. App. 113, 116 (5) (363 SE2d 312) (1987) (citations and punctuation omitted). Accordingly, the board has failed to show error in the trial court’s denial of attorney fees.

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.

G. Roger Land & Associates, G. Roger Land, Mitchell S. Graham; Hay good, Lynch, Harris, Melton & Watson, Charles B. Hay good, Jr., for appellees.

       OCGA § 48-5-311 (g) was amended, effective January 1, 2016, to provide, among other things, more detailed procedures for both taxpayers and the board in appeals to the superior court.

       The current version of OCGA § 48-5-311 (g) (4) (A), effective January 1, 2016, omits the “upon a showing of good cause” language at the end of the sentence, and thus provides: “The appeal shall he placed on the court’s next available jury or bench trial calendar, at the taxpayer’s election, following the filing of the appeal unless continued by the court.”


author: Ellington, Presiding Judge.

text:
    A15A1969.
    HICKEY et al. v. RREF BB SBL ACQUISITIONS, LLC.
    (785 SE2d 72)
   Ellington, Presiding Judge.

RREF BB SBL Acquisitions, LLC (“SBL Acquisitions”) obtained a judgment against Robert Hickey, Jr., and other defendants, in May 2013. As part of its post-judgment discovery efforts, SBL Acquisitions served a subpoena on nonparty SunTrust Banks, Inc. for deposition and request to produce documents upon appearance (the “Subpoena”). The schedule of documents requested to be produced included documents related to checking accounts, savings accounts, and money market accounts associated with Robert Hickey’s wife, nonparty Caroline Hickey, and accounts on which she was listed as signatory or owner. The Hickeys filed a motion to quash the Subpoena and for sanctions. The trial court denied the motion. The Hickeys sought unsuccessfully to obtain a certificate of immediate review from the trial court, after which they filed this direct appeal. The Hickeys contend that the trial court erred in denying their motion to quash because the Subpoena sought documents that were not relevant to the collection of the judgment, exceeded the scope of permissible post-judgment discovery, and infringed upon Caroline Hickey’s privacy rights. For the reasons set forth below, we disagree and affirm.

1. As a threshold issue, we address SBL Acquisitions’s motion to dismiss this appeal. SBL Acquisitions contends that an order involving a discovery dispute may not be directly appealed under OCGA § 5-6-34 (a), but may only be appealed under the procedures for interlocutory appeals under OCGA § 5-6-34 (b). Itfollows, SBL Acquisitions argues, because the Hickeys failed to follow the interlocutory appeal procedures, this Court must dismiss the appeal for lack of appellate jurisdiction.

We have “applied to post-judgment discovery the general rule that orders regarding discovery during the pendency of litigation must be appealed under the application procedures outlined in OCGA § 5-6-34 (b).” (Citation and punctuation omitted.) Sipple v. Atwood, 223 Ga. App. 677, 678 (478 SE2d 473) (1996). See Cornelius v. Finley, 204 Ga. App. 299, 300-301 (418 SE2d 815) (1992) (accord). Here, as it appears the disputed discovery remains unanswered, matters remain pending in the trial court. See Cornelius v. Finley, 204 Ga. App. at 301; OCGA § 5-6-34 (a) (1) (Appeals may be taken from “[a] 11 final judgments, that is to say, where the case is no longer pending in the court below”).

The Hickeys contend that the trial court’s order is nevertheless directly appealable under the collateral order doctrine, which

is to be applied if the order being appealed (1) resolves an issue that is “substantially separate” from the basic issues to be decided at trial, (2) would result in the loss of an important right if review had to await final judgment, and (3) completely and conclusively decides the issue on appeal such that nothing in the underlying action can affect it.

(Citation and punctuation omitted.) Britt v. State, 282 Ga. 746, 748 (1) (653 SE2d 713) (2007). SBL Acquisitions, on the other hand, maintains that the collateral order doctrine in Georgia does not extend to discovery orders, with narrow exceptions not applicable here.

SBL Acquisitions relies primarily on Johnson & Johnson v. Kaufman, 226 Ga. App. 77 (485 SE2d 525) (1997), a case in which “a majority of this Court adopted the United States Supreme Court’s rationale in finding discovery disputes not subject to the collateral order doctrine.” Gen. Motors Corp. v. Hammock, 255 Ga. App. 131, 132 (564 SE2d 536) (2002). In doing so, we followed the United States Supreme Court’s reasoning that

in the rare case when appeal after final judgment will not cure an erroneous discovery order, a party may defy the order, permit a contempt citation to be entered against him, and challenge the order on direct appeal of the contempt ruling. Firestone Tire &c. Co. v. Risjord, 449 U. S. 368, 377 (101 SC 669, 66 LE2d 571) (1981).

(Punctuation omitted.) Johnson & Johnson v. Kaufman, 226 Ga. App. at 82.

The rationale of the United States Supreme Court that we adopted in Johnson & Johnson does not apply, however, to a discovery order directed at a disinterested third party. Rather, “under the so-called Perlman doctrine, a discovery order directed at a disinterested third party is treated as an immediately appealable final order because the third party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance.” Church of Scientology v. United States, 506 U. S. 9, 18, n. 11 (113 SCt 447, 121 LE2d 313) (1992) (citing Perlman v. United States, 247 U. S. 7 (38 SCt 417, 62 LE 950) (1918)). This Court implicitly followed the Perlman doctrine in In re Hall County Grand Jury Proceedings, 175 Ga. App. 349, 350 (1) (333 SE2d 389) (1985), wherein we allowed the intervenors to directly appeal an order denying a motion to quash a grand jury subpoena in order to assert a privilege in the matters sought. And in In re DeKalb County Special Grand Jury Proceedings, 252 Ga. App. 359, 360 (555 SE2d 791) (2001), we explained that

[u]nder the Perlman exception, an intervenor may immediately appeal an order denying a motion to quash a subpoena duces tecum which was served upon a third-party custodian of records because that third party presumably lacked a sufficient stake in the proceedings to risk contempt for its noncompliance.

In light of Church of Scientology, supra, we disagree with SBL Acquisitions that the Perlman doctrine should be limited in Georgia to matters involving grand jury subpoenas or claims of privilege.

Here, the Subpoena in dispute requires the production of documents by a disinterested third party, SunTrust Bank, and the Hickeys could not have challenged the Subpoena through a direct appeal of a contempt order. We therefore find Johnson & Johnson distinguishable. The Subpoena was directed at obtaining documents and information associated with Caroline Hickey, who is not a judgment debtor. She claims a privacy interest in this information, which is an important claim of right substantially separate from, and collateral to, other issues in the case. If her information is not subject to disclosure, it cannot be undisclosed by a later reversal of an erroneous order. See Britt v. State, 282 Ga. at 748 (finding that, once requested information was revealed, the damage would have been done, and no appeal after final judgment could rectify the harm). An appeal from the order refusing to quash the Subpoena would conclusively resolve that claim of right. Accordingly, we find the order denying the Hickeys’ motion to quash to be directly appealable under the collateral order doctrine and deny SBL Acquisitions’s motion to dismiss the appeal.

2. The Hickeys contend that the trial court erred in denying their motion to quash the Subpoena insofar as it required the production of documents by SunTrust. OCGA § 24-13-23 (b) (1) “gives the trial court discretion upon timely motion to quash or modify such a subpoena if it is unreasonable and oppressive. This standard is tested by the peculiar facts arising from the subpoena itself and other proper sources.” (Citation and punctuation omitted.) Walker v. Bruhn, 281 Ga. App. 149, 151 (635 SE2d 322) (2006). See Blake v. Spears, 254 Ga. App. 21, 23 (2) (561 SE2d 173) (2002) (accord). The Hickeys contend that the Subpoena was unreasonable and oppressive in that it requested documents that were not relevant and was harassing and overbroad in its nature and scope. They further assert that the Subpoena is oppressive because it infringes on Caroline Hickey’s privacy rights.

(a) We disagree with the Hickeys that the trial court erred in failing to grant the motion to quash because the documents sought by SBL Acquisitions were not relevant. “[T]he only requirements placed by the Georgia legislature on discovery requested from nonparties is that the documents must be relevant and nonprivileged.” Sechler Family Partnership v. Prime Group, 255 Ga. App. 854, 857 (2) (567 SE2d 24) (2002). See OCGA § 9-11-34 (c) (1). In the context of discovery, “courts should and ordinarily do interpret ‘relevant’very broadly to mean matter that is relevant to anything that is or may become an issue in the litigation.” (Citation and punctuation omitted.) Bowden v. The Med. Center, 297 Ga. 285, 291 (2) (a) (773 SE2d 692) (2015).

The purpose of post-judgment discovery is to aid a litigant in obtaining satisfaction of a judgment, “and any question that seeks information which would lead to any property or sources of income of the judgment debtor is pertinent and allowable.” Aldridge v. Mercantile Nat. Bank, 132 Ga. App. 788, 789 (2) (209 SE2d 234) (1974). OCGA § 9-11-69 provides, in relevant part:

... In aid of the judgment or execution, the judgment creditor . . . may ... (1) Examine any person, including the judgment debtor by taking depositions or propounding interrogatories; [and] (2) Compel the production of documents or things ... in the manner provided in this chapter for such discovery measures prior to judgment.

We have previously found that OCGA § 9-11-69 (2), which allows the judgment debtor to compel the production of documents, is not limited to documents in the possession of the judgment debtor. See In re Callaway, 212 Ga. App. 500, 501 (442 SE2d 309) (1994). Rather, “[t]he spouse of a judgment debtor is . . . within the scope of the post-judgment discovery process, subject to the limitations createdby the Civil Practice Act provisions governing discovery generally.” Id. In considering the claim of the spouse of a judgment debtor that a trial court erred in requiring the spouse to respond to a request to produce, we found that a “legitimate subject of inquiry” included, among other things, “other sources of income [and] bank accounts.” (Citation and punctuation omitted.) Esasky v. Forrest, 231 Ga. App. 488, 490 (2) (b) (499 SE2d 413) (1998).

Here, SBL Acquisitions does not contend that it could garnish Caroline Hickey’s funds to satisfy the debt of her spouse. SBL Acquisitions was, however, authorized to seek discovery that would lead to any property or other sources of income of Robert Hickey. See Aldridge, 132 Ga. App. at 789 (2). Further, SBL Acquisitions relied on more than just the spousal relationship to support its contention that the documents requested in the Subpoena were relevant to its post-judgment discovery. The record shows that Robert Hickey is a member of the Dunwoody Country Club. Caroline Hickey began paying Robert Hickey’s membership dues (totaling over $10,000) from the two SunTrust accounts at issue here beginning in September 2013, after judgment had been entered against Robert Hickey in May 2013. Before that time, the membership dues were paid from a joint bank account in the name of both Caroline Hickey and Robert Hickey. Given that relevance is viewed very broadly in the context of discovery, and that Caroline Hickey paid a substantial amount of Robert Hickey’s personal expenses from the two accounts specifically identified in the Subpoena, it was within the trial court’s discretion to conclude that whether Robert Hickey had an interest in or was the source of funds in those accounts was relevant to SBL Acquisitions’s post-judgment discovery. See Davenport v. State, 316 Ga. App. 234, 241 (4) (729 SE2d 442) (2012) (in ruling on a motion to quash a subpoena, the trial court has wide discretion in determining whether evidence is relevant).

(b) We also disagree with the Hickeys that, in light of the nature and scope of the request to produce, the trial court erred in failing to quash the subpoena as unreasonable and oppressive. The documents that SunTrust was required to produce under the Subpoena included “documents, from January 1, 2013, to present, related to any and all checking accounts, saving accounts, and/or money market accounts... directly or indirectly associated with” Caroline Hickey, including, specifically, the two accounts that SBL Acquisitions showed were used by Caroline Hickey to pay for Robert Hickey’s personal expenses. Although the Subpoena was broadly worded in its scope, the Hickeys did not show that there were other accounts in Caroline Hickey’s name that would fall within the Subpoena, or that the number of documents encompassed thereby, which were sought from SunTrust, was oppressive or harassing as to Caroline Hickey. And, although the period of time for which the documents were requested was approximately five years, including approximately three years before the entry of judgment against Robert Hickey, we cannot conclude that the scope of the Subpoena was so broad that it was a clear abuse of discretion for the trial court to allow it.

(c) Lastly, we consider the Hickeys’ claim that the trial court erred in failing to quash the Subpoena because it infringed on Caroline Hickey’s privacy interest in her banking records. In the discovery process, “the competing interest in an individual’s right to privacy must be accommodated[.]” (Punctuation and footnote omitted.) Dikeman v. Mary A. Stearns, P.C., 253 Ga. App. 646, 648 (1) (a) (560 SE2d 115) (2002). And “this is particularly true where the information pertains to nonparties.” Id. See Borenstein v. Blumenfeld, 151 Ga. App. 420, 421 (1) (260 SE2d 377) (1979) (holding that “interests of justice do not require production of tax returns in the face of a motion for protective order where other discovery methods are available to obtain the same information”).

Banking records, at least for purposes of Fourth Amendment jurisprudence, are considered to be property of the bank in which one has no reasonable expectation of privacy. See Hatcher v. State, 314 Ga. App. 836, 838, n. 6 (726 SE2d 117) (2012) (noting that “one has no reasonable expectation of privacy in information voluntarily conveyed to another and maintained in the business records of another”); Culpepper v. State, 156 Ga. App. 331 (1) (274 SE2d 616) (1980) (finding that “[t]he banking records in question are the property of the banks involved; and release of the records by the banks violates no constitutionally protected interest of appellant”) (citations omitted). And, in the context of a civil dispute, we have found that a person has no reasonable expectation of privacy in copies of checks and deposit slips relating to a checking account, as they “are instruments of commercial trade which must necessarily be exposed to numerous persons in the ordinary course of business.” Adams v. Trust Co. Bank, 145 Ga. App. 702, 704 (2) (244 SE2d 651) (1978). On the other hand, the privacy of banking records is protected to some extent by statute. Except in the circumstances set forth in OCGA § 7-1-360, a financial institution is not “required to disclose or produce to third parties, or permit third parties to examine any records pertaining to a deposit account, loan account, or other banking relationship[.]” Id. However, the excepted circumstances include “[w]here the records of accounts or other customer records are requested through subpoena or other administrative process.” OCGA § 7-1-360 (a) (2). The statute “is not intended to hinder proper discovery in a lawsuit[.]” Clayton County Bd. of Tax Assessors v. Lake Spivey Golf Club, 207 Ga. App. 693, 695 (2) (428 SE2d 687) (1993). Further, the Hickeys do not point to “evidence that the information could be obtained by other means or that [the Subpoena was] meant merely to embarrass or harass” Caroline Hickey. (Footnote omitted.) Sechler Family Partnership v. Prime Group, 255 Ga. App. at 859 (5) (finding that discovery of financial information did not violate nonparties’ privacy interests). We conclude that, notwithstanding that it pertained to her banking records, the Subpoena did not impermissibly infringe upon Caroline Hickey’s privacy rights.

Decided March 25, 2016.

Slotkin & Caiola, F. Robert Slotkin, Jr., for appellants.

For the foregoing reasons, the trial court did not abuse its discretion in denying the Hickeys’ motion to quash the Subpoena.

Judgment affirmed.

McFadden and Mercier, JJ., concur.

Schulten, Ward & Turner; Kevin L. Ward, Andrea L. Pawlak, for appellee.

       Also sometimes referred to in the record, and on the accounts at issue, as “Carolyn” Hickey.

       The documents sought included “applications, signature cards, statements, checks (front and back), wire transfers, deposits, debits, credits and cashier’s checks, withdrawal slips, debit and credit memos, and IRS Form 489’s (Currency Transfer Reports).”

       We interpret Johnson & Johnson as establishing a general rule inasmuch as our Supreme Court has found that discovery orders might be directly appealed under the collateral order doctrine. See American Med. Security Group v. Parker, 284 Ga. 102, 104 (4), n. 9 (663 SE2d 697) (2008) (noting that “other discovery orders might be subject to direct appeal under the collateral order doctrine”); Britt v. State, 282 Ga. at 748 (1) (finding “the discovery order here is directly appealable because it falls squarely within the purview of the collateral order doctrine”).

         The Supreme Court of Georgia has also generally followed the lead of the United States Supreme Court in applying Georgia’s version of the collateral order doctrine. See Warren v. State, 297 Ga. 810, 811, n. 2 (778 SE2d 749) (2015).

        See Piratello v. Philips Electronics North American Corp., 360 F3d 506, 508-509 (II) (5th Cir. 2004) (finding that “the availahility of an appeal through a contempt order renders the collateral order doctrine inapplicable to discovery orders”).

       See Piratello v. Philips Electronics North American Corp., 360 F3d at 508 (II), n. 1 (finding discovery orders are not directly appealable final judgments, hut noting that the rules are different with respect to nonparties, citing Church of Scientology v. United States, 506 U. S. at 18, n. 11).

       Caroline also contends that her due process rights were violated in that “she was not in the same position she would have been had the document requests been made directly to her.” She presents, however, no legal authority for the proposition that SBL Acquisitions was required to request financial records from her directly.

       We note that “[w]hen parties or nonparties contend that discovery requests unduly invade their privacy, suitable protective orders insuring confidentiality may be sought.” Sechler Family Partnership v. Prime Group, 255 Ga. App. at 859 (5).