author: DOYLE, Presiding Judge.

text:
    A11A2202.
    CANINO v. THE STATE.
    (725 SE2d 782)
   DOYLE, Presiding Judge.

Raul Canino was charged with reckless driving and possession of cocaine with the intent to distribute. This appeal arises from this Court’s grant of Canino’s application for interlocutory review of the denial of his motion to suppress evidence obtained from his car following his arrest for reckless driving. Canino argues that the trial court erred because (1) the police did not have probable cause to arrest him for reckless driving; (2) the search of his vehicle incident to his arrest was improper; and (3) the search of his car pursuant to an inventory search was improper. We reverse, for reasons that follow.

When reviewing a trial court’s order on a motion to suppress,

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

So construed, the evidence shows that on August 19, 2008, at approximately 5:00 or 6:00 p.m., Officer Terry Werho of the Gwin-nett County Police Department, along with three other officers, was in a shopping center walking toward a restaurant where they planned to have dinner. As he walked through the parking lot, Werho observed Canino’s black BMW enter the parking lot, “accelerating at a high rate of speed, making turns through the aisles recklessly,” and causing the tires to squeal on the pavement and the body of the vehicle to “sway to the passenger side” as it turned. Another officer, Kevin Sipple, testified that Canino’s car “fish-tail[ed]” and came within ten feet of Sipple. Canino parked in a marked parking spot near the four patrol cars and exited his vehicle.

All four officers approached Canino, and Werho “[a]sked him why he was driving so recklessly” and for his identification. Canino replied that he was meeting someone inside the restaurant, and he produced two traffic citations, one for a traffic offense and one for driving under the influence, explaining that his driver’s license had been confiscated by DeKalb County police and that his name and birth date were on the citations. At some point during this initial contact, Werho directed Canino to sit in his vehicle, and Canino complied. Werho checked Canino’s information through the Georgia Crime Information Center (GCIC), which indicated that Canino did in fact have a driver’s license. Another officer was in a patrol car with Werho during the GCIC inquiry, and the other two officers remained standing “a few feet” behind Canino’s car where he was sitting pursuant to the officer’s instruction.

Werho then returned to Canino, asked him to exit his car, and told him that he was under arrest for reckless driving. Canino complied, and Werho placed him in handcuffs while Canino was pressed face-first against the driver’s side of his car, slightly behind the open driver’s door and against the seat pillar. Another officer — Corporal Marion — began searching Canino’s car. At the initial suppression hearing, Werho testified that the search and the handcuffing were “almost simultaneous” and stated that “I can’t tell you if [the search began] before handcuffs were completely on him, but it was after I informed him he was under arrest and before I finished the search of his person.” According to Werho, Marion searched the car from the passenger’s side. Marion testified that Canino was already in handcuffs before he began searching the vehicle from the driver’s side of the car. After Canino was secured in handcuffs, Marion found a plastic bag, which contained a white powdery substance, in the gap between the driver’s seat and the center console; a narcotics field test of the substance indicated that it was positive for drugs.

Canino’s vehicle was impounded following his arrest for reckless driving and possession of cocaine with intent to distribute. At some point during the incident, two women approached, and one of them told police that she knew Canino. Canino’s car was legally parked and did not constitute a hazard, and the property owner/manager did not request removal of the vehicle. The officers did not give Canino the opportunity to have a friend or family member remove his vehicle from the parking lot in lieu of impoundment, nor did they ask him if he wanted to make alternative arrangements for the car, despite the presence of the woman on the scene and the friends he was meeting in the restaurant.

Police officers involved in Canino’s arrest testified at a probable cause hearing on October 1, 2008; a bond hearing on November 7, 2008; and a second bond hearing on January 7, 2009. The court then held a hearing on Canino’s motion to suppress on July 1, 2009, at which time Officer Werho testified that the search of Canino’s car was conducted incident to his arrest, and he specifically denied that the search was an inventory search. The following year, before the trial court ruled on the motion to suppress, the State filed a motion to reopen the evidence, explaining that it had evaluated the search in this case in consideration of the recent United States Supreme Court decision of Arizona v. Gant, which was decided on April 21, 2009, and which held that police are authorized “to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search” or “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”

In March 2010, the Supreme Court of Georgia held that even if a search of a vehicle subsequent to an arrest was invalid under Gant, evidence could be admissible under the inevitable discovery rule if the State proves that the evidence seized from the vehicle would have been properly discovered during the subsequent inventory of the vehicle. Thus, the State sought to introduce evidence at a second motion to suppress hearing to establish that the impound of Canino’s vehicle was proper and would have resulted in the discovery of the cocaine.

The trial court granted the motion for a second hearing, at which Werho testified that the police conducted (1) a search of Canino’s car incident to arrest and (2) a subsequent impound inventory search based on Canino’s arrest and the drugs found in his vehicle. Marion testified at the same hearing that his search of Canino’s car was an impound inventory search.

After the hearing, the trial court denied Canino’s motion to suppress, concluding in a detailed order that Canino’s arrest for reckless driving was authorized; the subsequent search of his vehicle was an authorized search incident to arrest under Gant\ and the impoundment of his car was lawful and would have led to the inevitable discovery of the cocaine. This interlocutory appeal followed.

1. Canino argues that the police did not have probable cause to arrest him for reckless driving, and therefore, the trial court erred by failing to suppress the evidence seized subsequent to his arrest. This enumeration is without merit.

OCGA § 40-6-390 (a) defines reckless driving as driving “in reckless disregard for the safety of persons or property.” Canino argues that although he may have been speeding, there is no evidence that his actions threatened the safety of persons or property. The officers, however, testified that Canino accelerated through the busy shopping center parking lot at a high rate of speed; made reckless turns, causing his tires to squeal and his vehicle to fish-tail; did not have control of the car; and came within ten to fifteen feet of striking the officers while he drove. Another officer, Kevin Sipple, testified that Canino “came pretty close to striking Sergeant Hart and [me],” and there were people walking through the parking lot. Under these circumstances, the trial court was authorized to conclude that the officers had a basis for stopping and arresting Canino for reckless driving.

In support of this enumeration, Canino relies on the testimony of Don Shaver, an engineer and reconstruction expert, who testified at the initial suppression hearing that he attempted to replicate Canino’s actions in the parking lot, and his testing and observation of the parking lot led him to conclude that Canino was in control of his vehicle and that he could not have operated his vehicle in the manner described by the officers. The trial court, however, resolves all evidentiary conflicts, and its “decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous.”

2. Next, Canino argues that the trial court erred by denying his suppression motion because the search of his vehicle incident to his arrest was improper. We agree.

In New York v. Belton, the United States Supreme Court held that when a police officer “has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile [and] . . . the contents of any containers found within the passenger compartment.” That holding was based, in part, upon the Court’s assumption “that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach.’ ”

Thereafter, the Belton decision became “widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search,” so the Supreme Court clarified the issue in Arizona v. Gant. Gant was arrested for driving on a suspended license. After he was handcuffed and secured in a patrol car, two of the five officers on the scene searched Gant’s vehicle and found a gun and a bag of cocaine. The Supreme Court concluded that the search of Gant’s vehicle was unreasonable because “police could not reasonably have believed either that Gant could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein.” The Court stated that “to allow vehicle searches incident to any arrest would serve no purpose except to provide a police entitlement, and it is anathema to the Fourth Amendment to permit a warrantless search on that basis.” Therefore, the Court held, police are authorized “to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” or if police reasonably believe that evidence of the offense for which the occupant was arrested might be found therein. The Court explained that “[b]e-cause officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains.”

In Boykins v. State, the Supreme Court of Georgia reversed the denial of a defendant’s motion to suppress evidence of drugs because the search of his vehicle was not a proper search incident to arrest under Gant In that case, the evidence showed that Boykins, who was arrested on an outstanding probation warrant, exited his vehicle while being initially questioned, and he was then arrested, handcuffed, and placed in the patrol car. Because the State failed to present evidence regarding Boykins’s physical location at the time of the search, the Court held that “the State failed to make any meaningful showing that this was the ‘rare’ case justifying a war-rantless vehicle search because officers were unable to fully effectuate an arrest.”

In the instant case, the State does not contend that the police believed that there was evidence in Canino’s car related to his arrest. Instead, we must decide whether the State met its burden of proving that Canino was “unsecured and within reaching distance of the passenger compartment at the time of the search.”

Four officers were present on the scene, and Canino, who previously had been arrested only for a misdemeanor traffic offense, was fully compliant with the officers’ commands. Based on the facts of this particular case, we conclude that although Canino was in close proximity to the interior of his vehicle, if he was in handcuffs during the search, it was an improper search incident to arrest under Gant and Boykins. In its order, the trial court concluded that “it is unclear whether the defendant was handcuffed or not when the search commenced. . . .” Further, the State concedes on appeal that “[i]t is not clear from the evidence if [Canino] was handcuffed at the time the suspected cocaine was located.” As the record demonstrates, the State failed to prove that Canino was free of handcuffs and otherwise unsecured at the time the search began such “that this was the ‘rare’ case justifying a warrantless vehicle search because officers were unable to fully effectuate an arrest.” The State “therefore cannot argue that the search was justified based on [Canino’s] ability to access the passenger compartment of his vehicle at the time of the search.”

3. Canino also argues that the officers’ purported impound inventory search of his vehicle was invalid. Again, we agree.

In the interests of public safety and as part of what the Court has called “community caretaking functions,” automobiles are frequently taken into police custody. The police may inventory the contents of a vehicle that has been lawfully impounded, but they may not use an impoundment or inventory as a medium to search for contraband. The individual’s right of privacy is superior to the power of police to impound a vehicle unnecessarily.
Impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property. In each instance, the ultimate test for the validity of the police’s conduct is whether, under the circumstances then confronting the police, their conduct was reasonable within the meaning of the Fourth Amendment.

In Strohbert v. State, we found an impoundment search was invalid because the vehicle was unconnected to the defendant’s arrest; the vehicle was legally parked; the officer made no effort to determine whether the defendant’s companion, who was present at the scene, could take possession of the vehicle; and the officer failed to give the defendant an opportunity to make arrangements alternative to impoundment. We reiterated this Court’s previously adopted “view that when a driver is arrested and a reliable friend is present who may be authorized and capable of removing the vehicle, or where the arrestee expresses some preference for a private towing service, the rationale for impoundment does not exist.”

Similarly, in Mitchell v. State, we concluded that the State failed to demonstrate that impoundment of the defendant’s car was reasonably necessary because

[tjhere was no evidence of any connection between the car and appellant’s arrest, no evidence that the car was illegally parked or was a hazard to traffic, or that appellant was consulted regarding alternate disposition of the vehicle. In short, there was no showing that the impoundment of the car was reasonably necessary.

In State v. Lowe, we affirmed the suppression of evidence found in the defendant’s car during an inventory search because

the misdemeanor offense for which he was arrested was in no way related to the vehicle; the vehicle was legally parked in a safe and secure place on private property; the owner of the private property did not request that the vehicle be removed; and Lowe was not asked if there was anyone who could retrieve the vehicle.

Decided March 7, 2012.

James R. Hodes, Bruce S. Harvey, for appellant.

Daniel J. Porter, District Attorney, Charles P. Efstration III, Assistant District Attorney, for appellee.

Here, although Canino was arrested for a traffic offense, his car was legally parked in a shopping center parking lot and was not creating a hazard. Further, there was no evidence that either Canino, the property owner, or the property manager requested removal of the vehicle. Canino was meeting friends at the restaurant, and at least one friend was present at the scene and spoke with one of the officers. Regardless, the officers made no effort to determine whether one of Canino’s friends could take possession of the car or whether Canino wanted to make arrangements for alternate disposition. In fact, there was no evidence that Canino was ever advised that his car was being impounded. Instead, the police began searching the car immediately after Canino was advised that he was under arrest. And Canino’s failure to immediately volunteer or request alternative arrangements, before he was told that his car was being impounded, does not justify the search. Under these circumstances, the State failed to establish that impoundment of Canino ⅛ vehicle was reasonably necessary, and the resulting inventory search was invalid. The trial court therefore erred by denying the motion to suppress.

Judgment reversed.

Ellington, C. J., and Miller, J., concur.

       OCGA § 40-6-390 (a).

       OCGA § 16-13-30 (b).

       (Citations, punctuation and emphasis omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

       Werho could not remember whether Canino’s license was valid or suspended.

       Marion weighed the package at the scene, and it weighed 29.6 grams including the plastic bag.

       556 U. S. 332 (129 SC 1710, 173 LE2d 485) (2009). We discuss the Gant decision in detail in Division 2, infra.

       Id. at 343 (III).

       (Punctuation omitted.) Id.

       See Humphreys v. State, 287 Ga. 63, 76-77 (7) (694 SE2d 316) (2010).

       See OCGA § 40-6-3 (a) (2) (providing that the Uniform Rules of the Road “shall apply to a vehicle operated at shopping centers or parking lots or similar areas which although privately owned, are customarily used by the public as through streets or connector streets.”). See also Patton v. State, 287 Ga. App. 18, 21 (650 SE2d 733) (2007) (arrest for reckless driving authorized because the defendant sped through a congested parking lot and on a highway); Swearingen v. State, 255 Ga. App. 85, 86 (1) (564 SE2d 498) (2002) (traffic stop authorized based on evidence that the defendant was weaving and speeding through a pedestrian-filled mall parking lot).

       (Punctuation omitted.) Silverio v. State, 306 Ga. App. 438, 447 (4) (702 SE2d 717) (2010).

       453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981).

       Id. at 460 (II).

       Id., citing Chimel v. California, 395 U. S. 752, 763 (89 SC 2034, 23 LE2d 685) (1969).

       556 U. S. at 341 (III).

       See id. at 336 (I).

       See id.

       Id. at 344 (III).

       Id. at 347 (IV).

       (Emphasis supplied.) Id. at 343 (III).

       See id. at 343 (III).

       Id. at 343, n. 4.

       290 Ga. 71 (717 SE2d 474) (2011).

       See id. at 72 (2).

       See id. at 71 (1), 72 (2).

       Id. at 72 (2).

        Gant, 556 U. S. at 343 (III). See also Holsey v. State, 306 Ga. App. 75, 77 (1) (701 SE2d 538) (2010) (“[T]he State bore the burden of proving that [the defendant] was within reaching distance of his vehicle’s passenger compartment at the time of the search in order to assert that this was a proper search incident to arrest under the first prong of the Gant holding.”).

       We reject the State’s contention that Gant is inapplicable to this case because it was decided nine months after the search of Canino’s vehicle. The State relies on Davis v. United States,_U. S_(131 SC 2419, 180 LE2d 285) (2011), in which the Supreme Court held that Gant should not be applied retroactively if the officers were adhering, in good faith, to binding legal precedent when conducting their search. The Supreme Court of Georgia, however, recognizing that a state has “power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so,” has held that the good-faith exception to the exclusionary rule “is not applicable in Georgia in light of our legislatively-mandated exclusionary rule found in OCGA § 17-5-30.” Gary v. State, 262 Ga. 573, 574, 577 (422 SE2d 426) (1992). Further, we note that the Supreme Court of Georgia, relying on Gant, recently reversed the denial of a motion to suppress evidence discovered during a pre-Gant incident-to-arrest search of vehicle. See Boykins, 290 Ga. at 73, reversing Boykins, 307 Ga. App. at 405, n. 3 (noting that the search of Boykins’s vehicle took place on January 3, 2009, before Gant was issued on April 21, 2009). This Court has done so as well. See Holsey, 306 Ga. App. at 75 (reversing the denial of a suppression motion because the January 2009 search of the defendant’s vehicle was not justified under Gant).

       The only affirmative testimony on this issue was Marion’s statement that Canino was already handcuffed at the time the search began. Nevertheless, given Werho’s equivocal testimony regarding the timing of the two events, we will defer to the trial court’s resolution of the factual conflict and its conclusion that it is “unclear” whether Canino was handcuffed when Marion began to search the vehicle.

       Given the officers’ undisputed testimony that Canino was in fact handcuffed when the cocaine was actually discovered, the evidence is unclear at most whether Canino was cuffed at the time the search commenced.

        Boykins, 290 Ga. at 72 (2).

        Holsey, 306 Ga. App. at 77 (1).

       (Punctuation and footnotes omitted.) State v. Carter, 305 Ga. App. 814, 817 (2) (701 SE2d 209) (2010).

       (Citation and punctuation omitted.) State v. Lowe, 224 Ga. App. 228, 229-230 (480 SE2d 611) (1997).

       165 Ga. App. 515 (301 SE2d 681) (1983).

       See id. at 516.

       Id.

       178 Ga. App. 244 (342 SE2d 738) (1986).

       Id. at 245-246 (3).

       224 Ga. App. at 231.

       See Carter, 305 Ga. App. at 818-819 (2); State v. Bell, 259 Ga. App. 328, 330 (577 SE2d 39) (2003); Lowe, 224 Ga. App. at 231; Mitchell, 178 Ga. App. at 245-246 (3); Strobhert, 165 Ga. App. at 516.

       See Mitchell, 178 Ga. App. at 245-246 (3).


source: Caselaw Access Project

author: Doyle, Presiding Judge.

license: Public Domain

text:
    A11A2312.
    FOSTER v. THE STATE.
    (725 SE2d 777)
   Doyle, Presiding Judge.

Following a jury trial, Coleman Foster appeals from his conviction for trafficking in cocaine, possessing ecstasy, and obstructing a law enforcement officer. He contends that the trial court erred by (1) expressing an opinion as to what had been proved and (2) admitting hearsay statements made by a confidential informant. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that police conducted a controlled drug purchase at a house using a confidential informant wearing a microphone and audio transmitter. Based on the successful controlled transaction, police obtained a search warrant for the house. As a team of officers executed the warrant, several people fled the house, including Foster, who dropped a black bag on the ground as he ran away. The bag contained 105.98 grams of cocaine, 6.29 grams of ecstasy (3, 4-methylenedioxymethamphet-amine), and when the pursing officers caught up to Foster, they discovered $6,403 in cash on his person.

Foster was charged with trafficking in cocaine and ecstasy as well as obstruction for fleeing the arresting officers. A jury found him guilty of trafficking in cocaine, possessing ecstasy, and obstruction. After his motion for new trial was denied, Foster filed this appeal.

1. (a) Foster contends that the trial court erred by expressing an opinion on whether certain facts had been proven, which would require reversal under OCGA § 17-8-57: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” Foster points to several occasions where the trial court, typically during the tendering of an exhibit, referred to an exhibit as “cocaine” or “ecstasy” as opposed to “alleged cocaine” or “alleged ecstasy”:

Court: Now, is this the ecstasy? . . .
Court: Just so I’ll be sure, and the jury don’t get confused on this — I’m trying to be consistent because you have numerous charges here. I’m trying to be consistent with your exhibits with the indictment. So Exhibit 1 — this is a question. Exhibit 1 would be the cocaine and Count 2 for the ecstasy found in the black bag? . . .
Court: One more time just to be clear, we have a safe or lock box ... in the closet. Inside the lock box or safe is another box. You’re calling a cracker box, is that right? . . . When you open the cracker box is the crack, whatever it is in — ...
Court: When you just said cocaine, you’re talking about 105 grams of cocaine. . . .
Court: Wouldn’t it help if you went ahead and dealt with the ecstasy, so you would have — your first exhibit has got the cocaine and the charge of ecstasy, which, I guess, is Count 2 in the indictment?
Court: I’ve got six twenty-five [as the value of the ecstasy], . . .
Court: Can we seal it? We don’t want y’all getting your hands on the cocaine. ... I meant that in the opposite direction of what y’all probably thought I said. I didn’t want it to go into the pores of your skin is what I meant. So how can we do that?

Foster argues that each of these references amounted to the trial court intimating its opinion that the white powdery substance introduced at trial was actually cocaine and the pills introduced were actually ecstasy. At the outset, we note that the context of the trial court’s references shows that they generally were made for the purposes of administering the trial and clarifying which exhibit was associated with which count. At the beginning of trial, the court had asked the State to introduce them in the order of the counts in the indictment, to “keep it consistent for the jury.” Therefore, the court’s references to the exhibits were an attempt to organize the exhibits with the counts in the indictment or to ensure the integrity of the exhibits during the jury’s deliberation, and we do not interpret the comments and questions as statements of the trial court’s opinion as to whether the exhibits had been proven to be controlled substances. Under these circumstances, we find no error because “OCGA § 17-8-57 does not prohibit the trial judge from taking such measures as necessary to ensure the orderly administration of the trial, and the court may even propound questions to a witness to clarify testimony when necessary in order to enforce its duty to ensure a fair trial.”

Furthermore, we note that in Foster’s opening statement to the jury, his counsel conceded that the State would “be able to prove there was a black bag there[, and t]he black bag did in fact contain drugs,” and instead attacked the evidence showing that Foster possessed the contraband. Consistent with this, Foster never challenged the chemical identification of the substances, nor did he cross-examine the State’s forensic chemist about the identification of the substances. In sum, there was never any dispute at trial as to the composition of the exhibits.

While it is true that the trial court may not express an opinion as to what has been proved, where only one inference is possible from the evidence it is not improper for the court to assume the fact to be true. In the trial of a criminal case, even [though] the defendant has not admitted his guilt [and] the question of his guilt or innocence is in issue, where a relevant fact, other than the essential one of guilt or innocence, has been established by uncontradicted evidence, and the defendant in his statement to the jury does not deny such fact but in effect admits it to be true, it is not error for the judge to assume or intimate to the jury that such fact is true.

For these reasons and based on the facts of this case, we do not find an error under OCGA § 17-8-57.

(b) Foster also argues that the trial court violated OCGA § 17-8-57 by re-swearing a witness in the following exchange with the police evidence custodian:

Court: So you’re swearing today that the items packaged and presented in court today are the same items that you received back in March?
Witness: I do so swear.
Court: All right.

Based on this exchange, Foster argues that the trial court’s re-emphasis of the witness’s oath endorsed the credibility of the witness, thereby intimating the trial court’s opinion as to the truth of the witness’s testimony.

We discern no violation of OCGA § 17-8-57 in the trial court’s question. The intent of the question was to clarify the witness’s testimony, and, as noted above, “the court may . . . propound questions to a witness to clarify testimony when necessary in order to enforce its duty to ensure a fair trial.” In the context of the testimony, the trial court’s single, isolated use of the term “swearing” was not impermissible under OCGA § 17-8-57 because it referred to the sworn trial testimony, not the trial court’s opinion with regard to the facts at issue.

(c) Foster also argues that the trial court violated OCGA § 17-8-57 in the following colloquy at the end of the State’s direct examination of the officer who was the evidence custodian:

Court: All right. Cross-examination?
Defense Counsel: . . . For [the witness], for his benefit, I don’t have any questions. I just actually looked at a couple of things before I knew, but I don’t have any questions for the [witness].
Court: All right, sir. May he be excused from his subpoena?
Defense Counsel: The defense has no objection.
State: No objection.
Court: What about the custody? Was there an issue on —
Defense Counsel: Chain of custody? Not with [this witness], Your Honor.
Court: All right. It sounds good. Sir, you’re released. We appreciate it very much. Thank you.
Witness: Thank you, Your Honor.
Court: Thank you for the job you do. You’re welcome to stay in the courtroom if you would like or you can go back to work or go home or anywhere else you want to go.

Foster argues that the emphasized language above indicated the trial court’s agreement with the witness, demonstrating that the court thought he testified truthfully. Nevertheless, the general comment that “[i]t sounds good” after Foster’s counsel explained why she had no further need for the witness to remain under subpoena was a generalized acknowledgment for purposes of administering the trial. Further, although casual colloquy with witnesses should be minimized in front of the jury, merely thanking a law enforcement witness for his service as a courtesy did not in this case rise to the level of improperly intimating an opinion about the witness’s testimony. Therefore, we discern no error.

2. Finally, Foster contends that the trial court erred by overruling his hearsay objection during the following colloquy and instructing the jury as to how the hearsay might be considered:

State: [D]id you have an occasion to become involved in an investigation of drugs at that location?
Witness: Yes I did.
State: Would you explain to the jury how that came about?
Witness: I had a confidential [informant (Cl)] and he is a reliable informant. I have used this person more than ten times in the past. He is a paid informant. He called me and stated that he knew a house that he could purchase crack cocaine from and that the house was a dope house. He didn’t think anybody resided at the residence, that it was just —
Defense Counsel: Your Honor, I’m going to object to the hearsay. This is hearsay testimony that he’s repeating, what the Cl told him.
Court: Well, if it was a basis for the search warrant — is this part of the information you gave to the judge to get your search warrant?
Witness: Yes, sir.
Court: Then it would be admissible.
State: So let me ask it in this way. So you interviewed the informant?
Witness: Yes.
State: The informant provided you some type of information?
Witness: Yes, sir.
Court (interjecting): Let me instruct the jury on one thing. When an officer gets information from an informant, the information is related to that officer. It’s not being introduced because it’s true. I don’t want you to accept it automatically because the informant said it, that makes it true. It’s not being introduced for that purpose. It’s being introduced to show the actions of the officer and the reasons for the search warrant, not whether what he said is true or not.

Contrary to the trial court’s explanation, it was error in this case for the trial court to overrule the hearsay objection to the officer’s testimony as to what the Cl told him.

While it is true that hearsay information can in certain instances provide a basis for a search warrant, the existence of probable cause for a search warrant is a legal issue for the court, not the jury. Further, the Cl’s statements were inadmissible at trial to explain [the officer’s] conduct in obtaining the search warrant. Only in rare instances will the conduct of an investigating officer need to be explained. The State [did] not show[ ] that this is one of those instances.

In nearly every case, the motive of the police officer will not be a critical issue needing proof at trial.

At heart, a criminal prosecution is designed to find the truth of what a defendant did, and, on occasion, of why he did it. It is most unusual that a prosecution will properly concern itself with why an investigating officer did something. Stated another way, unless it is the rare instance in which the conduct of an investigating officer is a matter concerning which the truth must be found, it is error to permit an investigating officer to testify, under the guise of explaining the officer’s conduct, to what other persons related to the officer during the investigation.

Therefore, even “where an appellate court suggests that the jury may find police behavior so inexplicable as to cast doubt on the prosecution, or where a confidential informant has provided information which initiates an investigation, hearsay evidence is inadmissible to explain police conduct.”

Decided March 7, 2012.

Michael E. Garner, Robert L. Wadkins, Robin H. King, for appellant.

J. David Fowler, Gary D. Bergman, Joseph F. Burford, for appellee.

Nevertheless, the error does not demand a reversal if it is highly probable that the hearsay testimony did not contribute to the jury’s verdict. Here, the challenged hearsay testimony referred to the house as being a “dope house,” where drugs are used and sold, but the testimony did not describe or name Foster, nor was Foster implicated in the Cl’s controlled drug purchase. Furthermore, the hearsay description of the house was cumulative of other admissible testimony from an officer describing his observations of the house and its contents showing that it was used for processing and selling drugs. Finally, there was eyewitness testimony from an officer who saw Foster discard the black bag containing the cocaine and ecstasy. Therefore, we conclude that it is highly probable that the hearsay testimony did not contribute to the jury’s verdict, and the error does not demand a reversal in this case.

Judgment affirmed.

Ellington, C. J., and Miller, J., concur.

       OCGA § 16-13-31 (a) (1).

       OCGA § 16-13-30 (a).

       OCGA § 16-10-24 (a).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       Foster was also charged with a firearm offense, but he was not convicted on that count.

       Based on the amount of ecstasy, the trial court granted a directed verdict on the trafficking count, but allowed a jury charge on simple possession as a lesser included count. Foster does not challenge that ruling on appeal.

       (Emphasis supplied in quotations.)

        Moore v. State, 301 Ga. App. 220, 223 (1) (687 SE2d 259) (2009).

       (Emphasis supplied.)

       (Punctuation and footnote omitted.) Nelson v. State, 305 Ga. App. 65, 67-68 (3) (699 SE2d 66) (2010).

       See Sauerwein v. State, 280 Ga. 438, 439-440 (2) (629 SE2d 235) (2006) (stating that “[clourts of this State have always recognized . . . that a statement by a trial court concerning a fact that is uncontested or is not in dispute does not constitute a violation of” OCGA § 17-8-57, but also warning trial courts to avoid such remarks “to diligently avoid any appearance of partiality”). Our analysis is based on the evidence and proceedings in this case, but we do not imply that Foster’s chosen trial strategy relieved the State of its burden to prove each element of the indicted offenses.

       Moore, 301 Ga. App. at 223 (1).

       (Emphasis supplied.)

       (Emphasis supplied.)

       In contrast, the trial court excused the jury when the court wished to extend a special appreciation to a different witness who was retiring after a long career in law enforcement.

       (Punctuation and footnotes omitted.) Cooper v. State, 258 Ga. App. 825, 830 (4) (575 SE2d 691) (2002).

       See Weems v. State, 269 Ga. 577, 578 (2) (501 SE2d 806) (1998).

       (Punctuation omitted; later emphasis supplied.) Id. at 578-579 (2).

       (Punctuation and footnote omitted.) Deloatch v. State, 296 Ga. App. 65, 72 (3) (673 SE2d 576) (2009).

       See Weems, 269 Ga. at 579 (2); Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).


author: McFadden, Judge.

text:
    A11A1507.
    A11A1619.
    ADMIRAL INSURANCE COMPANY v. STATE BROADCASTING CORPORATION et al. STATE BROADCASTING CORPORATION et al. v. THOMPSON et al.
    (725 SE2d 789)
   McFadden, Judge.

These appeals arise from the denial of summary judgment to defendants in a negligence action and to the plaintiff insurance company in a related declaratory judgment action regarding possible coverage under an insurance policy. Because the injured party in the negligence action assumed the risk of injury, the trial court erred in denying summary judgment to the defendants; and since those defendants are not liable, the issue of whether there is coverage under the insurance policy is moot.

On appeal, we review the trial court’s summary judgment ruling de novo to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact. Bruntz v. Cotton Tail Hunt Club, 291 Ga. App. 200 (661 SE2d 849) (2008). Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.

So viewed, the evidence shows that on the morning of Saturday, July 5, 2008, Anthony Taylor took his 11-year-old son, R. T., to a fund-raising event for the East Dublin Lions Club held at Buckeye Park in East Dublin, Georgia. The event was sponsored, in part, by a local radio station owned by State Broadcasting Corporation. Once inside the park, Anthony Taylor sat down near the bank of the adjacent Oconee River and began drinking beer. Later that day, R. T. waded across the river to the opposite bank and, along with others, began climbing and jumping out of a tree that had a rope swing on it. Over the course of four or five hours, he jumped out of the tree between fifty and seventy-five times, sometimes using the rope swing and sometimes not using it. During that time period, the father continued to sit on the river bank, drink beer and watch as his son climbed and jumped out of the tree.

Around 8:00 p.m., R. T. told his father he was going to jump out of the tree one last time. Anthony warned R. T. to be careful, as he had repeatedly cautioned throughout the day. When R. T. jumped out of the tree, someone threw the rope swing toward him. His right arm became entangled in the rope and was severely injured.

Christi Thompson, R. T.’s mother, sued the East Dublin Lions Club, State Broadcasting and others for negligence, seeking to recover damages arising from R. T.’s injuries. Admiral Insurance Company, which had issued an insurance policy to an entity affiliated with State Broadcasting, filed a declaratory judgment action, seeking a judicial determination that the policy does not afford coverage for those injuries. State Broadcasting and its general manager, Rick Humphrey, moved for summary judgment as to the negligence claims brought by Thompson; and Admiral moved for summary judgment in its declaratory judgment action. The trial court denied both motions for summary judgment. In Case No. A11A1507, Admiral appeals; and in Case No. A11A1619, State Broadcasting and Humphrey appeal.

Case No. A11A1619

1. State Broadcasting and Humphrey assert that they are entitled to summary judgment based on their defense of assumption of the risk. We agree.

In order to establish the defense of assumption of risk, the [defendants] were required to show that [R. T.] (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. Even though [he] is a child of tender years, there is no legal bar to applying assumption of the risk, as a matter of law, to the conduct of a child between the ages of seven and fourteen when the evidence shows that the danger was obvious, that the child knew of the danger and was able to appreciate the risks associated with it, and the child voluntarily chose to run the risk.

(Citations and punctuation omitted.) O’Neal v. Sikes, 271 Ga. App. 391, 392 (609 SE2d 734) (2005).

Here, it is undisputed that 11-year-old R. T. is an intelligent child who knew that jumping out of the tree was dangerous and could appreciate its risks. According to Thompson’s deposition, he is extremely intelligent, quick-witted and a straight-A honor roll student. The record also shows that R. T. heard his father’s warnings to be careful. And prior to being hurt, he had thought to himself that jumping from the tree was dangerous, but the danger “was kind of the fun in it.”

Because the evidence shows that the danger was obvious, that R. T. knew of the danger and was able to appreciate the risks associated with it, and that he nevertheless voluntarily exposed himself to the risks of jumping from the tree, he assumed the risk of injury as a matter of law. See generally Riley v. Brasunas, 210 Ga. App. 865, 867 (1) (438 SE2d 113) (1993). Accordingly, the trial court erred in denying summary judgment to State Broadcasting and Humphrey. See O’Neal, supra at 393.

2. Because of our holding in Division 1, we need not address the remaining enumerations of error.

Case No. A11A1507

3. Admiral contends that the trial court erred in failing to declare that the insurance policy it issued to State Broadcasting does not cover the injuries suffered by R. T. But because of our holding in Division 1 that State Broadcasting is not liable for the injuries, whether or not the insurance policy would cover such liability is now moot. Accordingly, Admiral’s appeal is dismissed as moot. See Conklin v. Acceptance Indent. Ins. Co., 306 Ga. App. 585, 589 (702 SE2d 727) (2010).

Decided March 8, 2012

Carlock, Copeland & Stair, Wade K. Copeland, Lee S. Atkinson, McNatt, Greene & Peterson, Hugh B. McNatt, Hugh Peterson III, for appellants.

Smith & Jenkins, Wilson R. Smith, Durden, Rice & Barfield, William R. Rice, Sumner, Avery & Harper, Joseph C. Sumner, Jr., Sarah S. Harper, Ellis, Painter, Ratterree & Adams, Ryburn C. Ratterree, Freeman, Mathis & Gary, Theodore Freeman, for appel-lees.

Judgment reversed in Case No. A11A1619. Appeal dismissed in Case No. A11A1507.

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


author: Blackwell, Judge.

text:
    A11A2014.
    RAMAGE v. THE STATE.
    (725 SE2d 791)
   Blackwell, Judge.

Thomas Lee Ramage was tried by a Baldwin County jury and convicted of aggravated child molestation, child molestation, incest, and cruelty to children. He then filed a motion for new trial, in which he claimed, among other things, that he was deprived at trial of his constitutional right to be present during all critical stages of the proceedings when the trial judge met privately with the jury on several occasions during its deliberations, an unusual procedure to which his lawyer consented at trial, but about which Ramage knew nothing, he says, until after the trial had concluded. The court below refused a new trial on this ground, apparently because, although Ramage himself never expressly consented to the judge meeting privately with the jury, his lawyer did. The court below made no findings, however, about whether Ramage was present when his lawyer consented to this procedure, whether Ramage expressly authorized his lawyer to do so, or whether Ramage later acquiesced in the consent given by his lawyer. Ramage appeals, and we conclude that the court below applied the wrong legal standard in its consideration of whether Ramage waived his right to be present when the judge met with the jury. For this reason, we vacate the order denying the motion for new trial, and we remand for the court below to find the pertinent facts and apply the correct legal standard.

As we noted earlier, the trial judge met privately with the jury on several occasions during its deliberations. The first occasion followed a note from the jury, in which the jury asked about the definition of statutory rape. The trial judge informed the lawyers of the note, and the prosecuting attorney suggested that the judge go into the jury room and give the same charge on statutory rape that the judge had given earlier. The lawyer representing Ramage said then that he agreed with this suggestion, and the judge went alone into the jury room and addressed the jury. The transcript does not reflect what was said in the jury room, and it does not reveal whether Ramage was present in the courtroom when his lawyer agreed to this procedure.

The jury later sent another note to the judge, in which it asked about the consequences of a failure to reach a unanimous verdict on one of the counts. In response to this note, the judge suggested that he visit with the jury to ascertain whether it still was deliberating on other counts “and then come back and tell you all,” and both lawyers agreed. The judge then entered the jury room, and when he emerged from it, he reported that the jury still was deliberating on “some” of the counts. Although a verdict apparently had been reached by then on some counts, the judge added that he did not know the nature of any such verdict. After a brief discussion with the lawyers, the judge suggested that he return to the jury room and instruct the jury to continue deliberating. Again, both lawyers agreed, and the judge entered the jury room and apparently instructed the jury to continue deliberating. Whatever was said in the jury room during these visits is not reflected in the transcript, and the transcript does not reveal whether Ramage was in the courtroom when the judge discussed these visits with the lawyers.

A little while later, the judge announced that one of the jurors wished to be excused to deal with a personal matter at her home. The court excused that juror with the consent of the lawyer representing Ramage, and the excused juror was replaced with an alternate juror. Shortly thereafter, the bailiff informed the judge that the jury wanted to see him again. The judge went again into the jury room, and when he emerged, he reported that the jury had voted on at least some counts before the juror was excused, and the remaining jurors and alternate wanted to know if they should vote again on those counts with the alternate. The judge sought the advice of the lawyers about how best to proceed, and the lawyer for Ramage said that he wanted the alternate to deliberate with the other jurors. The judge agreed, and he again entered the jury room, where he apparently instructed the jury to continue deliberations. Once again, whatever was said in the jury room is not reflected in the transcript, and the transcript does not reveal whether Ramage was present in the courtroom at the time of these occurrences.

After the jury had deliberated for between six and seven hours, the judge announced that the jury apparently had reached a verdict as to every count but one. The judge suggested that he give a modified Allen charge and ask the jury if there was “any realistic possibility [the jury could] come to a unanimous decision on [the remaining] count.” Both lawyers agreed with this approach, and the judge again went into the jury room. The judge then emerged and confirmed that the jury had reached a verdict, albeit without a unanimous decision on one count. The jury returned to the courtroom, and the judge gave a modified Allen charge and asked if there was a reasonable possibility that the jury could reach a unanimous decision on the remaining charge. When the foreperson responded that there was no such possibility, the jury returned its verdict.

The United States and Georgia Constitutions guarantee the right of an accused “to be present at all critical stages of the proceedings against [him].” Peterson v. State, 284 Ga. 275, 278-279 (663 SE2d 164) (2008); see also Faretta v. California, 422 U. S. 806, 819 (III) (A), n. 15 (95 SC 2525, 45 LE2d 562) (1975); Hanifa v. State, 269 Ga. 797, 807 (6) (505 SE2d 731) (1998). Consequently, our Supreme Court has warned that, during a trial, the judge “should not in any manner communicate with the jury about the case, in the absence of the accused and his counsel.” Hanifa, 269 Ga. at 807 (6) (citation and punctuation omitted). And we have held that an accused is entitled to be present for, among other things, the giving of a jury charge and a colloquy between the judge and jury. Locklin v. State, 228 Ga. App. 696, 697 (2) (492 SE2d 712) (1997). A denial of the right to be present as guaranteed by our State Constitution is “presumed to be prejudicial” and, if properly raised on appeal, requires “reversal and remand for a new trial.” Peterson, 284 Ga. at 279.

On the motion for new trial, the court below found that the lawyer representing Ramage at trial consented to the judge meeting privately with the jury during its deliberations, and the court concluded that Ramage effectively waived his right to be present by the consent of his lawyer. That conclusion reflects an application of an erroneous legal standard. Although an accused can waive the right to be present, his lawyer properly can waive the right on his behalf, we have said before, only in his presence, with his express authority, or with his subsequent acquiescence. Stewart v. State, 210 Ga. App. 474, 474 (1) (436 SE2d 679) (1993). See also Locklin, 228 Ga. App. at 697 (2). The court below made no findings about whether Ramage was present when his lawyer consented to the judge meeting privately with the jury, whether Ramage expressly authorized his lawyer to do so, or whether Ramage later acquiesced in these meetings. We are in no position on appeal to resolve these questions of fact, inasmuch as the trial transcript is silent about these things, and the other evidence in the record is conflicting and ambiguous. At the hearing on the motion for new trial, Ramage testified that he was not present when his lawyer consented to the meetings and that his lawyer never consulted with him about such meetings. His lawyer testified, on the other hand, that although he was not certain that Ramage was present in the courtroom every time the lawyer consented to the judge meeting privately with the jurors, the lawyer recalled counseling Ramage at the defense table with respect to at least some of the communications between the judge and the jury. In light of the conflicting and ambiguous evidentiary record, we vacate the denial of the motion for new trial, and we remand for the court below to find the pertinent facts and then to apply the correct legal standard to resolve the question of waiver. On remand, the court may rely upon the existing evidentiary record, or if it determines that record to be inadequate, it may reopen the evidence and conduct such other and further proceedings as are appropriate. See Rosser v. State, 312 Ga. App. 240, 241 (2) (718 SE2d 310) (2011).

Decided March 8, 2012.

John H. Bradley, for appellant.

Fredric D. Bright, District Attorney, DeLeigh P. Shelton, Assistant District Attorney, for appellee.

Judgment vacated and case remanded.

Barnes, P. J., and Adams, J., concur.

       Ramage was convicted of two counts of aggravated child molestation, seven counts of child molestation, and one count each of incest and cruelty to children. Ramage was acquitted of one count of aggravated child molestation, four counts of child molestation, one count of statutory rape, and three counts of criminal attempt to commit child molestation. The jury was unable to reach a verdict on smother count of child molestation, and the trial court declared a mistrial on that count.

       On other grounds, the court below granted a new trial to Ramage on three child molestation counts.

       The written order on the motion for new trial, which consists of only one sentence, does not explain the thinking of the court below about this issue. But at the hearing on the motion for new trial, the court explained:
      [N]othing that was done in this case was done without the consent of the attorneys for both sides. ... I didn’t just wander in and out of the jury room without a conversation with [the lawyers]. So, I don’t think Mr. Ramage’s rights were denied in any way in that process and I’m going to deny that ground for your motion ....
      In light of the explanation given by the court at the hearing, we understand the court to have found that Ramage waived his presence by the consent of his lawyer.

       Ramage also contends on appeal that he was deprived at trial of the effective assistance of counsel. Because we are vacating the order below and remanding for further proceedings about whether Ramage waived his right to be present, we need not address the ineffective assistance claims at this time, and we decline to do so. If the court below refuses a new trial on remand, Ramage will have an opportunity to appeal again, and he can raise his ineffective assistance-claims then.

        See Mien v. United States, 164 U. S. 492, 501 (9) (17 SC 154, 41 LE 528) (1896).

       The State points to cases in which the courts have held that an accused may not always have a right to be present for a charge conference or other conference in which the judge and lawyers discuss purely legal matters, see Huff v. State, 274 Ga. 110, 111-112 (2) (549 SE2d 370) (2001), but the giving of a jury charge and a colloquy between the judge and jury about the status of deliberations are different matters altogether.

       A denial of the right to be present as guaranteed by the United States Constitution, on the other hand, raises no presumption of prejudice and is subject to harmless error analysis on appeal. See Peterson, 284 Ga. at 279. In this case, Ramage asserts his right to be present under both the federal and state constitutions.


text:
    A11A1905.
    ACCC INSURANCE COMPANY v. PIZZA HUT OF AMERICA, INC.
    (725 SE2d 767)
   Blackwell, Judge.

Pizza Hut of America, Inc. filed a petition in Cobb County against ACCC Insurance Company, seeking a declaratory judgment that Pizza Hut is an additional insured under a policy of automobile insurance that ACCC Insurance previously had issued to a Pizza Hut employee. The court below awarded summary judgment to Pizza Hut, and ACCC Insurance took an appeal from the entry of summary judgment. A transcript that was designated to be included in the record on appeal, however, apparently was not filed for another six months, and on the motion of Pizza Hut, the court below dismissed the appeal under OCGA § 5-6-48 (c) for unreasonable and inexcusable delay in the filing of the transcript. ACCC Insurance now appeals from the dismissal of its appeal, but because we cannot conclude that the court below abused its discretion, we must affirm.

On October 10, 2008, ACCC Insurance timely filed a notice of appeal from the entry of summary judgment for Pizza Hut on its petition for declaratory judgment. In this notice of appeal, ACCC Insurance designated the entire record, including all transcripts, as the record on appeal. About four months later, a lawyer for ACCC Insurance telephoned the civil appeals clerk and asked about the preparation of the record on appeal. The clerk responded that she had been on maternity leave when the notice of appeal was filed in October 2008, and she had not yet prepared an estimated bill of costs for the preparation of the record. The lawyer received the bill of costs on February 10, 2009, and ACCC Insurance paid it two weeks later.

The bill of costs indicated that no transcript had been filed of the hearing on the motion for summary judgment. The law firm representing ACCC Insurance then contacted the court reporter and asked her to prepare a transcript of that hearing on an expedited basis. The court reporter replied that she could not expedite the preparation of this transcript because she already had other transcripts, 3,000 pages in all, to prepare before she could turn to this request. The court reporter also said that, if only ACCC Insurance had made its request a couple of months earlier, “I had no transcript orders [then] and could have done it probably the same day.”

On February 25, 2009, ACCC Insurance filed a motion for an extension of the time for the preparation and filing of the hearing transcript, and although the motion was untimely, OCGA § 5-6-39 (d), the court below granted it, extending the time to file the transcript until April 11. Two days after ACCC Insurance asked for an extension of time, Pizza Hut moved to dismiss the appeal. Attached to this motion to dismiss were two exhibits, which reflected the communications between the law firm representing ACCC Insurance and the court reporter about the preparation of the transcript of the hearing on the motion for summary judgment. ACCC Insurance responded in writing to the motion to dismiss the appeal, and attached to its response were several affidavits and exhibits, further detailing the efforts of ACCC Insurance to secure the preparation of the transcript beginning in February 2009.

The transcript finally was filed with the clerk on April 8, 2009. About a week later, the court below heard the motion to dismiss the appeal. Lawyers for ACCC Insurance and Pizza Hut argued the motion, but no witness testified at the hearing, and no evidence was submitted to supplement the several affidavits and exhibits that the parties previously had submitted. ACCC Insurance argued, among other things, that the clerk could not have prepared the record any sooner than she did, and the delay in filing the transcript did not, therefore, cause any delay in the transmission of the record. When the lawyer for ACCC Insurance represented that the clerk was behind in her preparation of records for appeals because she had only recently returned from maternity leave, the court inquired whether there was “some affidavit showing that[.]” The lawyer said that he thought the clerk had “submitted something to the Court[,]” but the lawyer was unable to answer a question from the court about the dates that the clerk had taken maternity leave. During the course of the hearing, the judge also asked whether the clerk was available “to testify today so that we can find out about why [the record] was delayed,” and the judge helpfully suggested that “I think I need to hear from the Clerk’s Office.” No witness from the clerk’s office appeared, however, to testify. The court below subsequently entered an order dismissing the appeal.

“Where there is a transcript of evidence and proceedings to be included in the record on appeal, the appellant shall cause the transcript to be prepared and filed . . . within 30 days after filing of the notice of appeal. . . .” OCGA § 5-6-42. In relevant part, OCGA § 5-6-48 (c) provides that “the trial court may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party.” Thus, “[t]he party seeking dismissal for failure to file a transcript must show that the delay was unreasonable, inexcusable, and caused by the appellants themselves.” Dye v. U. S. Bank Nat. Assn., 273 Ga. App. 652, 653 (616 SE2d 476) (2005) (citations omitted).

Our Supreme Court has said that a delay of more than 30 days in filing a transcript is presumptively unreasonable and inexcusable, but that presumption may be rebutted “if the [appellant] comes forward with evidence to show that the delay was neither unreasonable nor inexcusable.” Kelly v. Dawson County, 282 Ga. 189 (646 SE2d 53) (2007) (citation and punctuation omitted). See PJ Svcs. v. Equity Technologies Assocs., 295 Ga. App. 214, 216 (671 SE2d 264) (2008) (accord). We review the decision of a trial court to dismiss an appeal under OCGA § 5-6-48 (c) for abuse of discretion. Rois-Mendez v. Stamps, 312 Ga. App. 136, 137 (717 SE2d 718) (2011). We find no abuse of that discretion here.

The court below concluded, consistent with the evidence, that ACCC Insurance did nothing from October 10, 2008, when it filed its notice of appeal, until February 4, 2009, when it contacted the appeals division of the clerk’s office, to comply with its obligation to obtain the transcript that it had designated as part of the record on appeal. The court also found that the delay between November 9, 2008, which is 30 days after the filing of the notice of appeal, and February 4, 2009, was presumptively unreasonable and inexcusable and that ACCC Insurance offered “no evidence with respect to this time period that would tend to rebut this presumption.”

ACCC Insurance argues that the court nevertheless erred in dismissing its appeal because the transcript was filed within the extension that the court allowed. See OCGA § 5-6-42 (transcript to be filed within 30 days of filing of notice of appeal “unless the time is extended as provided in Code Section 5-6-39”). Although OCGA § 5-6-39 (a) (3) authorizes a trial court to extend the time for filing transcripts of the evidence and proceedings on appeal, OCGA § 5-6-39 (d) requires that an appellant make a request for an extension “before expiration of the period for filing as originally prescribed or as extended by a permissible previous order.” (Emphasis supplied.) Since ACCC Insurance only applied for an extension months after the initial filing period had expired, the order granting the extension was “nugatory and void.” Almond v. Robertson, 138 Ga. App. 22, 23 (225 SE2d 486) (1976) (citation omitted).

ACCC Insurance further contends that the delay in filing the transcript was not unreasonable because it did not actually delay the docketing of the appeal. Whether a delay is inexcusable, and whether it is unreasonable, are separate and distinct questions. See Crown Diamond Co. v. N. Y. Diamond Corp., 242 Ga. App. 674, 677 (3) (530 SE2d 800) (2000). We have said before that “[a]n unreasonable delay is one that (1) causes the appeal to be stale by delaying the docketing of the appeal or (2) directly prejudices the position of a party by allowing an intermediate change of condition.” Griffis v. Branch Banking & Trust Co., 268 Ga. App. 588, 590 (1) (602 SE2d 307) (2004). As we have explained, “the demand for punctuality should not be so strict as to defeat the very purpose of the requirement by preventing an appeal altogether, unless the delay is unreasonable so as to affect the appeal itself.” Galletta v. Hillcrest Abbey West, 185 Ga. App. 20, 21-22 (1) (363 SE2d 265) (1987). See Sellers v. Nodvin, 262 Ga. 205, 207 (1) (b) (415 SE2d 908) (1992) (accord).

To support its contention that the delay in filing the hearing transcript was not unreasonable, ACCC Insurance maintains that the preparation of the record on appeal in this case inevitably would have been delayed significantly, “which had to do with a maternity leave within the trial court’s appeals division,” and any delay, therefore, is not due to any failure to timely file the hearing transcript. The evidence does not show, however, to what extent the maternity leave impaired the ability of the clerk to promptly prepare records on appeal. Despite the inquiries of the judge at the hearing on the motion to dismiss, neither party came forward with any affidavits or testimony from the clerk or her staff that shed light on the dates of the maternity leave and whether, as ACCC Insurance contends, the clerk would not have prepared the record on appeal any sooner in any event.

What the evidence does show is that ACCC Insurance did nothing from the time the notice of appeal was filed until approximately four months later even to cause the transcript to be prepared, much less filed, and the transcript was not filed until about five months after it should have been. Compare Galletta, 185 Ga. App. at 22 (11-day delay in filing transcript was not an unreasonable delay) with Van Diviere v. Delta Airlines, 204 Ga. App. 573 (420 SE2d 27) (1992) (“the record shows . . . that the transcript had not yet been filed 119 days after the expiration of the deadline, which ‘obviously . . . delayed the docketing necessarily’ ”) (citation omitted). Further, as noted above, since OCGA § 5-6-43 (a) requires the clerk of the trial court to transmit the record to this Court within five days of the receipt of the transcript, which it did not receive for months, a connection logically can be drawn between a delay in filing the transcript and a delay in transmission of the appellate record to this Court. See Crown Diamond Co., 242 Ga. App. at 676-677 (2). Had this been a case in which the uncontradicted evidence showed that the delay in filing the transcript did not, in fact, delay the docketing of the appeal, the court below might not have been authorized to find that the delay in filing the transcript was unreasonable. See Sellers, 262 Ga. at 207-208 (2) (b) (delay in filing transcript not unreasonable where “uncontradicted evidence [which included testimony by the appeal clerk] at the hearing was that the delay in filing the transcript did not delay transmission of the record to the Court of Appeals”) (footnote omitted); Griffis, 268 Ga. App. at 590 (evidence showed that clerk has a large backlog of appeals and was not waiting on the late filed transcript, and so evidence supported trial court’s finding that delay was not unreasonable). But given the state of the record, especially the absence of any evidence from the clerk, the evidence supports the trial court’s finding that ACCC Insurance “had not rebutted the presumption that the delay was unreasonable and inexcusable.” Kelly, 282 Ga. at 190. We must conclude, therefore, the trial court did not abuse its discretion in dismissing the earlier appeal by ACCC Insurance. See id.; Durden v. Griffin, 270 Ga. 293, 294 (1) (509 SE2d 54) (1998) (where appellants did nothing to cause the transcript to be prepared until they faced a motion to dismiss, and the trial court refused to consider late-filed evidence as to the court reporter’s heavy case load, dismissal of appeal was not abuse of trial court’s discretion). Accordingly, we do not reach the merits of the dismissed appeal.

Decided February 10, 2012

Reconsideration denied March 9, 2012.

Gray, Rust, St. Amand, Moffett & Brieske, Michael D. St. Amand, for appellant.

Carlock, Copeland & Stair, Scott D. Huray, Kenneth W. Brosna-han, for appellee.

Judgment affirmed.

Barnes, E J., and Adams, J., concur.

       ACCC Insurance formerly was known as American Century Casualty Company.

       A few days after Pizza Hut moved to dismiss the appeal, ACCC Insurance amended its notice of appeal and designated for the first time that transcripts be omitted from the record on appeal. Fifteen days later, Pizza Hut timely filed its own designation of the record on appeal pursuant to OCGA § 5-6-42, insisting that a transcript of the hearing on the motion for summary judgment be included.

       When the court below heard arguments on the motion to dismiss the appeal, it appears that the record on appeal still had not been prepared by the clerk, ostensibly because, as the lawyer for ACCC Insurance suggested at the hearing, the clerk was awaiting a decision on the motion to dismiss.

       ACCC Insurance also contends that, by amending its notice of appeal to withdraw its request for the transcript, it ensured that there was no delay in preparing the record. But ACCC Insurance only amended the notice of appeal on March 3, 2009, approximately five months after the notice of appeal was filed on October 10,2008, and so its amendment does not alter our analysis of whether the delay in filing the transcript was unreasonable.

       No prejudice to Pizza Hut’s position by allowing an intermediate change of condition is suggested by the parties.

       As ACCC Insurance points out, the deputy clerk attached a certificate to the record on this appeal that the delay in the transmission of the record was “due to the stress of business” and not due to any fault by any lawyer for ACCC Insurance. Under OCGA § 5-6-43 (a), the clerk of the trial court must transmit the record to this Court within five days of the filing of the transcript of the “evidence and proceedings,” and “[i]f for any reason the clerk is unable to transmit the record and transcript within the time required in this subsection or when an extension of time was obtained under Code Section 5-6-39, he shall state in his certificate the cause of the delay and the appeal shall not be dismissed.” The certificate of the deputy clerk is dated months after the court below dismissed the earlier appeal and could not have been considered by the court when it dismissed the earlier appeal. We do not, therefore, consider the certificate.


author: PHIPPS, Presiding Judge.

text:
    A11A1719.
    FARLEY v. THE STATE.
    (725 SE2d 794)
   PHIPPS, Presiding Judge.

A jury found Vinson Lloyd Farley guilty of terroristic act and aggravated stalking. Farley appeals from his judgment of conviction and the denial of his motion for new trial, claiming that the trial court erred by (i) allowing hearsay testimony, (ii) limiting his cross-examination of a police officer, (iii) precluding him from recalling three of the state’s witnesses during presentation of the defense’s case-in-chief, and (iv) not giving the jury an instruction on admissions. Farley also contends that his trial counsel rendered ineffective assistance, and that the evidence was insufficient to support the jury’s verdict.

The evidence showed that Farley and Regina Gipson (Gipson) lived together in Gipson’s house. When they had been together about a year, their relationship took a turn for the worse. One evening, Farley threw a camera against the bedroom wall. Gipson asked Farley to move out of the house, but he refused and insisted on 30 days’ notice. Gipson went to the courthouse and “put in an eviction notice.” Farley then announced that he was going to divide their bed so that Gipson could sleep on one side and he could sleep on the other. To mark the proposed division, he took an industrial ladder out of the garage and attempted to place it on the bed. When Gipson got on the bed to stop him, Farley dropped the ladder on her.

On July 10, 2008, Gipson obtained a temporary protective order requiring Farley to leave the house, to stay away from the house, and to refrain from contacting or approaching her. The following day, around 12:27 p.m., a sheriffs deputy served Farley with the protective order. Farley acknowledged at trial that he had received the order and that he knew it prohibited him from returning to Gipson’s house.

The same afternoon, after Farley was served with the protective order, Gipson’s sister, Cassandra Gipson, her sister’s boyfriend, Ezell Wharton, and her nephew, Deonte Gipson, went to her house to change the locks. Farley was not there. The three noticed a gas can outside the garage door and piles of wood and sticks in back of the house. Cassandra Gipson realized that it “wasn’t normal.” When Gipson got home, her sister and the others pointed out the “[b]utane and oil” in front of the house, which was not normally there, and she walked around the back and saw piles of wood, which was also out of the ordinary. Gipson testified that she had not noticed the butane and other material in front of the house, nor the piles of wood in the back yard, when she left the house that morning.

After Gipson, Cassandra Gipson, and Wharton went inside the house, Deonte Gipson went to the back yard to shoot his BB gun. Shortly thereafter, “on the corner of the house [he saw] the front tire of a bike ride up and stop.” Deonte Gipson saw Farley, who did not see him, walk toward the front of the house. Deonte Gipson called Cassandra Gipson on his cell phone to alert her and the others inside to Farley’s presence. Deonte Gipson then peered around the corner and saw Farley, “coming back around towards me, pouring gasoline on the house.” Farley poured gasoline on the house, on “piles of trash,” and then on the deck. When Farley pulled out a lighter, Deonte Gipson tackled Farley, and a “long fight” ensued.

Gipson called the police while Wharton went outside the house to help subdue Farley. Cassandra Gipson also went outside and moved the gasoline can to the back porch and away from the area where Deonte Gipson and Farley were fighting. She also saw a lighter lying on the ground.

The responding officer arrived at the scene to find Wharton holding down Farley. The officer noticed a strong odor of gasoline around the house and on the wood piles. Cassandra Gipson approached the officer while he was handcuffing Farley, and she asked Farley why he had tried to kill her sister. Farley said, “I’m sorry. I f — ed up.” She also asked Farley why he brought gasoline, and he responded that he did not bring the gasoline, which was at the house, and that “he poured most of the gasoline on the wooden deck behind the” house. According to Gipson, she owned the gas can, which held gasoline for the lawn mower.

The police called the fire department to the scene. According to a responding fireman, he could see and smell the gasoline on the back of the house and on the deck. He then sprayed “fuel buster” on the spill to neutralize it.

Farley testified in his defense. He denied placing piles of wood near the house or pouring gasoline. He acknowledged leaving and then returning to Gipson’s property, But he contended that he went back to get his tools.

1. Farley claims that the evidence was insufficient to support his convictions. In reviewing this claim, we do not weigh the evidence or determine the credibility of witnesses, as “that is the function of the jury. Instead, we construe the evidence in the light most favorable to the verdict to determine whether it was sufficient to authorize a rational trier of fact to find [Farley] guilty of these offenses beyond a reasonable doubt.”

(a) Farley argues that the state failed to prove the elements of aggravated stalking. We disagree. OCGA § 16-5-91 (a) provides:

A person commits the offense of aggravated stalking when such person, in violation of a . . . temporary protective order. . . follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.

For purposes of stalking,

the term “harassing and intimidating” means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.

Here, Farley claims that the state failed to prove he engaged in a pattern of harassing and intimidating behavior directed at Gipson. Although a single violation of a protective order, in and of itself, does not amount to aggravated stalking, the state does not have to show multiple violations of a protective order. Rather, “[b]y its plain terms, OCGA § 16-5-91 prohibits even a single violation of a protective order, if that violation is . . . part of a pattern of harassing and intimidating behavior.” Accordingly,

[i]n determining whether a defendant has exhibited such a pattern of behavior, the jury can consider a number of factors, including the prior history between the parties, the defendant’s surreptitious conduct, as well as his overtly confrontational acts, and any attempts by the defendant to contact, communicate with, or control the victim indirectly, as through third parties.

In this case, the evidence was sufficient to show a pattern of harassing and intimidating behavior by Farley directed at Gipson. A trier of fact could conclude that Farley’s behavior in throwing the camera in the bedroom and later dropping an industrial ladder on Gipson was both harassing and intimidating. In addition, the jury could have found that it was Farley who had set out the piles of wood around Gipson’s house. Farley was gone by the time Cassandra Gipson, Deonte Gipson, and Wharton arrived to change the locks. The three showed Gipson the piles of wood when she arrived. Farley later returned to the scene and tried to burn down the house while Gipson was inside. Two related instances of stalking behavior are sufficient to show a pattern of harassing and intimidating behavior. Accordingly, any rational trier of fact could have found beyond a reasonable doubt that Farley was guilty of aggravated stalking.

(b) The evidence was also sufficient to support Farley’s conviction for terroristic act. As applicable here, “[a] person commits the offense of a terroristic act when . . . [h]e or she releases any hazardous substance . . . for the purpose of terrorizing another.” Farley contends that the state failed to prove he poured gasoline, as opposed to another substance, around the house or on the wood piles. But Deonte Gipson testified that he saw Farley pouring gasoline on the house, and a firefighter with 23 years of experience confirmed that gasoline had been poured on the house. Any rational trier of fact could have found beyond a reasonable doubt that Farley was guilty of terroristic act.

2. Farley claims that the trial court erred in allowing a police officer to give hearsay testimony. We disagree.

On direct examination, the responding officer testified that he moved the gas can from the wooden deck and onto the grass. The prosecutor asked the officer why he moved the gas can. The officer began his answer by stating that he had poured out the gasoline after speaking with a “supervisor who advised —,” but defense counsel objected on hearsay grounds as soon as the officer uttered the word “advised” and the officer did not complete his response. The trial court overruled Farley’s objection, and the prosecutor again asked the officer why he moved the gas can. The officer responded, “I moved the gas can to pour out the leftover gasoline because the gas can was going into evidence and a combustible liquid cannot be stored in evidence.” Since the officer never testified about what his supervisor told him, he did not give evidence that “rest[ed] mainly on the veracity and competency of other persons.” The correctness of the trial court’s ruling on Farley’s hearsay objection is moot because the officer never gave hearsay testimony.

3. Farley claims the trial court erred in limiting his cross-examination of the responding officer. Again, we disagree.

As we noted above, the responding officer testified that Farley made an incriminating statement during the arrest indicating that he had “f — ed up” and had taken the gas can and poured gasoline on the deck. During the responding officer’s direct testimony, defense counsel represented to the trial court that Farley did not challenge the admissibility of this statement, adding that “[i]t’s a spontaneous statement.”

On cross-examination, defense counsel asked the officer whether he was familiar with Miranda. The prosecutor objected on the ground that the question was irrelevant, and the trial court sustained the objection. Defense counsel then proposed asking the officer if he had read the Miranda rights to Farley. The prosecutor objected to the proposed question on the grounds that Farley’s statement was spontaneous and that Miranda was not relevant. The trial court sustained that objection as well.

“The right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against him.” But that right is not violated where cross-examination “is limited by the trial court to relevant matters by proper questioning.” Because defense counsel represented to the trial court that Farley’s statements were spontaneous, and this is consistent with the lack of evidence that Farley’s incriminating statements were made as a result of custodial interrogation, the trial court could properly conclude that Farley’s Miranda rights were not a relevant issue. “[T]he necessity of administering Miranda warnings exists only when the individual is interrogated while in custody. ... No right exists to inquire into irrelevant matters, and consequently the trial court did not err by curtailing appellant’s cross-examination on this matter.”

4. The trial court refused to allow Farley to recall Gipson, the responding officer, and Deonte Gipson to testify during the defense’s case-in-chief. Farley contends that the trial court therefore deprived him of his Sixth Amendment right to confront the witnesses against him. We disagree. Farley was afforded the opportunity to extensively cross-examine, and therefore confront, these witnesses. Furthermore, “the trial court has the power to deny the recall of a witness who testified previously where the testimony to be given by the recalled witness would be repetitious of the witnesses] earlier testimony.” Farley’s counsel proffered the topics he intended to explore with the three witnesses on recall, but counsel had already thoroughly cross-examined the witnesses on these issues. Accordingly, the trial court did not abuse its discretion in denying Farley’s request to recall the witnesses.

5. Farley contends the trial court erred in failing to instruct the jury, consistent with OCGA § 24-3-53, that “[a]ll admissions shall be scanned with care, and confessions of guilt shall be received with great caution. A confession alóne, uncorroborated by any other evidence, shall not justify a conviction.” But Farley did not submit a written request to make this charge.

Generally, it is not reversible error for the trial court to fail to give a request to charge that is not submitted in writing by the complaining party. Such failure constitutes reversible error only where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.

So viewed, we cannot conclude that the failure to charge was reversible error. Farley’s admissions were strongly corroborated by other testimony, including that of Deonte Gipson, who testified that he saw Farley pouring gasoline on and around the house and on the deck. Thus “any error in failing to give this charge is harmless, as the ‘confession’ was corroborated by other evidence.”

6. Last, we consider Farley’s claim that he received ineffective assistance of trial counsel. Specifically, Farley contends that his trial counsel’s performance was deficient because his trial counsel failed to timely investigate the crime scene, failed to object to the introduction into evidence of pictures of the crime scene, failed to properly retain witnesses, and failed to submit written jury instructions.

To prevail on a claim of ineffective assistance, appellant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. We need not address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either prong.

Further,

[t]o establish deficient performance, a person challenging a conviction must show that “counsel’s representation fell below an objective standard of reasonableness.” A court considering a claim of ineffective assistance must apply a “strong presumption” that counsel’s representation was within the “wide range” of reasonable professional assistance.

(a) Farley testified at the hearing on the motion for new trial that his trial counsel performed inadequately because counsel did not go to Gipson’s property to talk to witnesses. He also contends that his counsel was deficient because he caused photographs of the crime scene to be taken on December 8, 2009, long after the incident. To the extent that Farley suggests that these two alleged failures show a more generalized lack of trial preparation and investigation by defense counsel, he failed at the hearing on the motion for new trial to ask trial counsel about counsel’s trial preparation or investigation, or about his alleged failures in visiting the property or tardily arranging for the photographs. Without more, we cannot conclude that Farley overcame “the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” Further, Farley did not show he was prejudiced. Even if we assume that counsel was deficient in failing to go to the property to talk to possible witnesses, the existence and availability of witnesses favorable to the defense is, under this record, pure speculation. Nor does Farley show that if his counsel had caused photographs of Gipson’s yard to be taken closer to the date of the incident, there was a reasonable probability that the outcome of the trial would have differed.

(b) Farley claims that his counsel was deficient in not objecting to the state’s introduction of photographs of the crime scene because, before the photographer took the pictures, the gas can and lighter had been moved from their original location and Gipson’s yard had been sprayed with foam. “[Tjhis claim is waived because it was not raised either in the motion for new trial as amended or at the hearing thereon by appellate counsel. . . .” Moreover, Farley does not show that the photographs, authenticated by Gipson and by the responding officer, were excludable upon objection.

(c) Farley further claims his counsel was deficient in failing to retain, for purposes of recalling as witnesses, Gipson, Deonte Gipson, Cassandra Gipson, and the responding officer. Farley “was required to offer ‘more than mere speculation’ that [these witnesses] may have had evidence that would have assisted [his] case at trial.” He did not do so, and, therefore, Farley failed to show a reasonable probability that the results of the proceeding would have been different.

(d) Farley also argues that his counsel was deficient in failing to submit a written request to charge the principles of OCGA § 24-3-53, which, as we noted above, require that admissions be scanned with care, confessions of guilt received with great caution, and that a confession, uncorroborated by any other evidence, does not justify a conviction. Given the strength of the evidence, Farley does not show that, if his counsel had submitted a written request to charge, there was a reasonable probability the outcome of the trial would have differed.

Decided March 9, 2012.

Deborah L. Leslie, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       The jury also found Farley guilty of criminal attempt to commit arson in the first degree. The trial court merged this count into the crime of terroristic act for purposes of final disposition and sentencing.

        Morgan v. State, 277 Ga. App. 670, 671-672 (1) (627 SE2d 413) (2006) (footnote omitted).

       OCGA § 16-5-90 (a) (1). See State v. Burke, 287 Ga. 377, 378 (695 SE2d 649) (2010) (the simple stalking statute defines “harassing and intimidating” for purposes of the entire article on stalking).

       Id.

       See Louisyr v. State, 307 Ga. App. 724, 729 (1) (706 SE2d 114) (2011).

       Id. at 729.

       Id. (footnote omitted).

       Unlike in Burke, supra, the record does not show that “the State specifically argued that it only had to prove [the defendant’s] single violation of the . . . protective order in order for the jury to find him guilty of the crime charged.” Burke, supra at 377. See Herbert v. State, 311 Ga. App. 396, 398, n. 3 (715 SE2d 795) (2011) (describing circumstances of Burke as “unique”).

       See, e.g., Hervey v. State, 308 Ga. App. 290, 292 (707 SE2d 189) (2011) (“testimony about the repeated threats, coupled with the violation of the protective order, was sufficient evidence for the jury to find that [defendant’s] behavior was harassing and intimidating”) (citation omitted).

       See Daker v. Williams, 279 Ga. 782, 785 (621 SE2d 449) (2005).

       Although Farley also challenges the sufficiency of the evidence to show criminal attempt to commit arson in the first degree, which, as previously noted, the trial court merged into the offense of terroristic act, “we need not address the merits of [Farley’s] enumeration of the general grounds addressing the verdictt ] finding him guilty of [an] . . . offenset ] . . . for which he was never convicted and sentenced.” Carter v. State, 269 Ga. 420, 422 (2) (499 SE2d 63) (1998).

       OCGA § 16-11-37 (b) (3).

       OCGA § 24-3-1 (a) (“Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.”). See Henley y. State, 285 Ga. 500, 507 (5) (678 SE2d 884) (2009) (using information gained by police, a sergeant obtained telephone records and subscriber information to identify potential suspects; the sergeant’s testimony was not hearsay because he “did not relay information told to him by other persons”).

       OCGA § 24-9-64.

         Johnson v. State, 158 Ga. App. 333, 334 (280 SE2d 379) (1981).

       Farley now suggests that, but for the trial court’s improper limitation of the officer’s cross-examination, the evidence would have shown that he made the incriminating statements in response to police interrogation and that his constitutional rights were violated. He does not support this assertion.

       See Barrett v. State, 289 Ga. 197, 199 (1) (709 SE2d 816) (2011) (“A statement which is spontaneous and unsolicited as not made in response to any form of custodial interrogation is not bound by the strictures of Miranda and is admissible without the warnings having been given”) (citation omitted).

        Ramos v. State, 198 Ga. App. 65, 66-67 (2) (400 SE2d 353) (1990) (citation and punctuation omitted; emphasis in original).

       See generally State v. Vogleson, 275 Ga. 637, 638 (1) (571 SE2d 752) (2002) (“[t]he main and essential purpose of the right of confrontation is to secure for the opponent the opportunity of cross-examination”) (citation and punctuation omitted).

        McMichael v. State, 252 Ga. 305, 307 (313 SE2d 693) (1984).

       See Smith v. State, 261 Ga. App. 871, 875 (3) (583 SE2d 914) (2003).

       Id. Farley’s previous trial on the indictment resulted in a verdict of not guilty of aggravated assault, and a mistrial on the charges of criminal attempt to commit arson in the first degree, terroristic act, and aggravated stalking. Farley argues that the written requests to charge submitted in his previous trial should “bind the trial court” in the second trial. He cites no authority for this proposition. Uniform Superior Court Rule 10.3 provides, in pertinent part, that requests to charge be submitted at the “commencement of trial, unless otherwise provided by pre-trial order; provided, however, that additional requests may be submitted to cover unanticipated points which arise thereafter.” The trial court advised counsel that requests to charge needed to be resubmitted for purposes of this trial. We find no error in this decision.

        Dunn v. State, 289 Ga. App. 585, 587 (2) (657 SE2d 649) (2008) (citation and punctuation omitted). See Hunt v. State, 166 Ga. App. 524, 525 (2) (304 SE2d 576) (1983) (“[albsent a timely request, the trial court did not err in failing to charge on the evidentiary weight to be given admissions and confessions or in failing to charge that an uncorroborated confession is insufficient to support a conviction”) (citations omitted).

        Bowley v. State, 261 Ga. 278, 281 (5) (404 SE2d 97) (1991).

        Towry v. State, 304 Ga. App. 139, 143 (2) (695 SE2d 683) (2010) (citations and punctuation omitted).

        Brown v. State, 288 Ga. 902, 907 (5) (708 SE2d 294) (2011) (citation and punctuation omitted).

       The assistant district attorney did ask defense counsel if he felt he was adequately prepared for trial, and defense counsel indicated that he was prepared.

        Morgan v. State, 275 Ga. 222, 227 (5) (564 SE2d 192) (2002) (citation and punctuation omitted).

       See id.

        Collier v. State, 288 Ga. 756, 758 (3) (707 SE2d 102) (2011) (citation omitted).

       See, e.g., Isaacs v. State, 259 Ga. 717, 732 (26) (386 SE2d 316) (1989) (“[a]ny witness who is familiar with the scene depicted can authenticate the photograph; it is not necessary that the witness be the photographer or even that the witness have been present when the photograph was taken”) (citation omitted); Shaffer v. State, 291 Ga. App. 783, 785 (1) (662 SE2d 864) (2008) (failure to make a meritless objection does not constitute ineffective assistance).

        Dickens v. State, 280 Ga. 320, 323 (2) (627 SE2d 587) (2006) (citation and punctuation omitted).

       Id.

       See Division 5, supra.