text:
    A11A2220.
    JOHNSON v. THE STATE.
    (723 SE2d 100)
   Dillard, Judge.

Ricky J. Johnson was indicted on one count of burglary and four counts of theft by taking. Thereafter, Johnson filed a motion to dismiss/plea in bar to these charges, alleging that his Sixth Amendment right to a speedy trial had been violated. The trial court denied Johnson’s motion, and this appeal follows, in which Johnson contends that the court erred in its analysis of the required Barker factors. For the reasons set forth infra, we vacate the trial court’s order and remand for reconsideration.

The record shows that Johnson was arrested on November 8, 2007, and was thereafter appointed indigent-defense counsel on November 21, 2007. Johnson’s first attorney, Parker McFarland, quickly realized that he had also been appointed to represent Johnson’s co-defendant and informed Johnson upon his initial visitation that he would be unable to serve as his counsel.

Thereafter, on November 30, 2007, Johnson signed (and presumably mailed) a pro se demand for a constitutional speedy trial, which was filed by the clerk of court on December 6, 2007. Also on November 30, 2007, the indigent-defense administrator for Forsyth County appointed Gregg Schuder to represent Johnson. And while the appointment form was not filed with the clerk of court until December 5, 2007, Schuder signed an entry of appearance on December 3, which was then filed with the court on December 4. Schuder thereafter filed a number of motions on Johnson’s behalf, but he did not file a speedy-trial demand.

On January 9, 2008, after spending approximately two months in jail on the charges relevant to the case sub judice, Johnson was granted a bond. Nevertheless, he remained incarcerated on other charges. And between February 2008 and October 2008, the record before us is more or less silent. But on October 30, 2008, Schuder filed a request to withdraw as Johnson’s counsel, which did not indicate any reason for making such a request. Then, on January 5, 2009, Johnson was indicted on the above-referenced charges. And 11 days later, on January 16, 2009, the trial court granted Schuder’s request to withdraw as counsel. The order gave no indication as to why Schuder withdrew from his representation of Johnson.

Nearly two months passed before Kelly Turner was appointed to represent Johnson on March 11, 2009. Johnson’s case was then placed on the trial calendar for June, but on July 1, 2009, the trial court granted a motion made by Johnson to extend the time for filing motions. On July 13, 2009, Johnson—while still represented by Turner—filed a pro se demand for a speedy trial pursuant to OCGA § 17-7-170 and the Georgia and United States Constitutions. The case was then placed on trial calendars for August, September, October, and December in 2009 and January in 2010, with Turner filing various discovery-related motions on Johnson’s behalf between the scheduled trial dates.

But on December 28, 2009, Turner filed a motion to withdraw as counsel, citing an “impassible conflict” and Johnson’s belief that she was “working in concert with the District Attorney’s Office to prosecute him.” The trial court granted Turner’s request to withdraw on January 15, 2010, and Johnson’s case was then continued until the February 2010 trial calendar.

In late January, attorney Rex McClinton was appointed to represent Johnson. The case was then placed on the trial calendars for April, May, and June 2010. But due to conflicts in his schedule, McClinton was unable to go to trial in June, and on July 8, 2010, Johnson filed his motion to dismiss/plea in bar, alleging a violation of his right to a constitutional speedy trial. The case was then placed on the trial calendars for August and September 2010.

On September 24, 2010, the trial court denied Johnson’s motion to dismiss, and Johnson timely filed a notice of appeal with the trial court in October. In March 2011, Johnson’s current counsel was appointed after McClinton unexpectedly passed away. This appeal follows.

On appeal, Johnson contends that the trial court erred in (1) denying his motion to dismiss when the delay in bringing him to trial was presumptively prejudicial; (2) finding that the delay was primarily caused by Johnson’s difficulty with his appointed counsels; (3) finding that Johnson failed to assert his right to a speedy trial; and (4) finding that Johnson did not suffer prejudice by the delay.

At the outset, we note that pursuant to Barker v. Wingo and Doggett v. United States, there are two stages to a trial court’s analysis when considering a criminal defendant’s motion to dismiss on the basis of a constitutional speedy trial violation. First, the court must determine whether the delay between arrest, indictment, or other formal accusation and trial is presumptively prejudicial. If the delay is presumptively prejudicial, the court must then proceed to the second step, “which requires the application of a delicate, context-sensitive, four-factor balancing test to determine whether the accused has been deprived of the right to a speedy trial.” The four factors in this second step of the Barker analysis are whether (1) the pretrial delay was excessively long; (2) the defendant or State is primarily responsible for the delay; (3) the defendant timely asserted the right to a speedy trial; and (4) the defendant suffered prejudice as a result of the delay.

When the trial court balances the foregoing factors, “[n]o one factor is necessary or sufficient to sustain a finding that the right to a speedy trial has been denied,” and the factors should instead be considered together in balancing the conduct of the defendant and the State. And on appeal, “we review the trial court’s weighing of each Barker factor and its balancing of all four factors only for abuse of discretion.” But when the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, “the deference owed the trial court’s ultimate ruling is diminished.” And here, the trial court made several errors in its application of the Barker framework to Johnson’s speedy-trial claim, which requires that we vacate and remand the case for proper consideration. We will address each of the factors—and Johnson’s enumerations of error—in turn.

1. Step One: Presumptive Prejudice. As a threshold inquiry, the trial court must consider whether the delay in bringing the accused to trial is presumptively prejudicial. If the delay is not presumptively prejudicial, “the speedy trial claim fails at the threshold.” But if the delay is indeed presumptively prejudicial, “the court must proceed to the second step of the Barker-[D]oggett analysis . . . .”

To calculate the length of the delay when the defendant has not been brought to trial, the trial court must look “from the date of arrest or other formal accusation to the date on which a defendant’s speedy trial motion was granted or denied.” This is because the constitutional right to a speedy trial attaches when the defendant is arrested or when formal charges are initiated—whichever occurs first. And in general, a delay exceeding one year is presumptively prejudicial.

Using this calculation, the delay between Johnson’s arrest on November 8, 2007, and the denial of his speedy trial motion on September 24, 2010, was approximately 35 months—well over one year. And while the trial court incorrectly determined that the delay in this case amounted to approximately 33 months, it nevertheless properly concluded that the delay was presumptively prejudicial and continued its analysis.

2. Step Two: The Four Barker Factors. Initially, we note that the factors emphasized in Barker and Doggett do not constitute an exhaustive list, “have no talismanic qualities,” and “must be considered together with such other circumstances as may be relevant given the animating principles behind the speedy trial guarantee.” With these guiding (and contextual) principles in mind, we will now turn to the four factors common to all constitutionally based speedy-trial claims.

(a) Whether the Delay Before Trial was Uncommonly Long. While the length of delay “plays a role in the threshold determination of presumptive prejudice,” it is also considered “as one of the four interrelated criteria that must be weighed in the balance at the second stage of the Barker-Doggett analysis.” And in line with well-established precedent from the Supreme Court of the United States, our own Supreme Court has cautioned that “[i]t is important that trial courts not limit their consideration of the lengthiness of the pretrial delay to the threshold question of presumptive prejudice and remember to count it again as one of four criteria to be weighed in the balancing process at the second stage . . . .”

Here, the trial court’s order reflects that the court conflated its consideration of the length of delay in the threshold inquiry with its consideration of the first Barker factor, which was clearly in error. Indeed, the trial court’s finding in this regard was limited to a statement that the delay was approximately thirty-three months and that delays approaching one year are presumptively prejudicial. Accordingly, the trial court on remand must assess whether the delay in Johnson’s case—the calculation of which should be made as explained supra—was uncommonly long and/or excessive, keeping in mind that “[a] delay is considered uncommonly long under the test to the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” The court must then consider the weight of this factor.

(b) Reason and Responsibility for the Delay. This second factor requires a trial court “to examine both the reason for the delay and whether the delay was attributable to the defendant or to the State.” And because some amount of pretrial delay is unavoidable, “the reason for the delay is pivotal in evaluating the strength of a constitutional speedy trial claim, as it can color the consideration of all other factors.”

In this regard, “[djeliberate delay to gain an improper advantage over the accused strikes at the very heart of the speedy trial guarantee and is thus ‘weighted heavily against the government’ in the Barker-Doggett balancing process.” But at the opposite end of the spectrum are “situations where it is the defendant who requested or otherwise engineered the delay . . . .” Nevertheless, most reasons for delay are pedestrian and remain neutral in the balancing process; however, some common reasons for delay must be weighed against the State. For example,

overcrowded dockets, the government’s failure to provide for sufficient numbers of judges, prosecutors, or indigent defense counsel, neglect by the prosecution or other government agents, mere convenience of the prosecution, or the desire to avoid the expense of separate trials for two defendants involved in the same crime []

would all weigh against the State, although “less heavily than delay designed to sabotage the accused’s case.” Finally, when there is no apparent reason for a delay, “we must treat the delay as caused by the negligence of the State in bringing the case to trial.”

In denying Johnson’s motion to dismiss, the trial court determined that the delay was caused primarily by Johnson’s “difficult behavior and the legitimate actions taken by his attorneys.” The court then referred to Johnson’s attorneys having filed “multiple motions, including a Motion to Extend Time For Filing Motions” and “additional motions [by Ms. Turner] throughout 2009,” and a motion “to hire a fingerprint expert.” Finally, the court noted that the case “has appeared on multiple trial calendars, but the readiness of the case for trial has been affected, at least in part, by counsel’s conflicts and a leave of absence.” Presumably, the trial court weighed this factor against Johnson.

The trial court’s analysis, however, failed to discuss Johnson’s first attorney, Parker McFarland, or Johnson’s second attorney, Gregg Schuder, whose representation accounts for the period between late 2007 and early 2009. The court also neglected to consider the State’s delay in indicting Johnson or any other portion of the delay which might otherwise be attributable to the State. Furthermore, with regard to the motions filed by Turner, Johnson testified that discovery-related motions were filed because the State had not yet turned over all evidence—a contention that also merited consideration by the trial court. On remand, the trial court must reconsider the reasons for delay and whether Johnson or the State is responsible for the various and sundry contributing factors.

In remanding for reconsideration, we note that although the State argued before the trial court that Attorney Schuder withdrew due to having conflicts with Johnson, the State did not present evidence of any alleged conflicts. Indeed, Johnson testified that he did not have problems with Schuder. But the State urged the trial court to review the transcripts from various calendar calls, alleging that these would demonstrate why Schuder withdrew. However, no such transcripts appear in the record before us, we do not have a transcript from any hearing on Schuder’s motion to withdraw, and neither Schuder’s motion nor the trial court’s order permitting withdrawal gives any indication as to the circumstances surrounding the request to withdraw.

Additionally, we note that when questioning Johnson during the motion-to-dismiss hearing, the State made reference to some confusion regarding Schuder’s withdrawal, suggesting that he had erroneously been permitted to withdraw as counsel of record in July 2008 but was reappointed before withdrawing again in January 2009. But the record before us only reflects Schuder’s appointment in late 2007 and his withdrawal in 2009 (though, as noted supra, the appointment form from 2007 inexplicably contains a handwritten notation of “reappointment”).

Given the incomplete record and the scant findings of fact in support of the trial court’s decision, we are constrained to remand so that the court can reconsider the circumstances giving rise to the delay and reassess the causes for the delay with regard to the principles outlined supra before reweighing this factor.

(c) Assertion of the Right to a Speedy Trial. Although the filing of a speedy-trial demand is not “a prerequisite for a plea in bar for failure to have a speedy trial on constitutional grounds,” a defendant nevertheless has the responsibility to “assert the right to trial, and the failure to exercise that right is entitled to strong evidentiary weight against the defendant.” In this regard, the “timing, form, and vigor of the accused’s demands to be tried immediately should be considered in determining the weight given to the assertion-of-the-right factor.” Indeed, a defendant “may assert his constitutional right to a speedy trial at any time after he is arrested; he need not wait until indictment.”

And here, the trial court disposed of this factor by finding that “[w]hile the Defendant’s counsel did not assert Defendant’s right until the filing of this Motion, the Court recognizes that Defendant (not his counsel) attempted to assert his right by his ineffective filing of demands for speedy trial on December 6, 2007 and July 13, 2009.” The trial court then cited our well-established case law that trial courts are authorized to find pro se demands of no legal effect when a criminal defendant is represented by counsel. In finding that Johnson’s pro se demands were ineffective, the trial court presumably weighed this factor against Johnson, which Johnson claims was in error.

It is well established that “[t]he Sixth Amendment right does not afford the defendant the hybrid right to simultaneously represent himself and be represented by counsel.” Thus, Johnson’s July 13, 2009 motion was clearly ineffective because he was represented by appointed counsel at that time. Likewise, Johnson’s December 6, 2007 motion was ineffective because he was represented by counsel at the time the motion was filed. Although we recognize that this may seem harsh or inequitable given the timeline surrounding Johnson’s December 2007 attempt to assert his right, the trial court nevertheless correctly weighed this factor against him.

(d) Whether Defendant Suffered Prejudice. In evaluating this final factor, “we consider three interests which the speedy trial right is designed to protect: preventing oppressive pretrial incarceration, minimizing anxiety and concern of the defendant, and, most importantly, limiting the possibility that the defense will be impaired.” Of these considerations, the last has been deemed the most serious “because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” And here, the trial court found that each consideration weighed in favor of the State.

(i) Preventing Oppressive Pretrial Incarceration. The trial court found that the first factor weighed in favor of the State because Johnson was incarcerated on other charges. Johnson contends that the trial court thereby erred. We agree, and the trial court must reconsider this interest on remand.

With regard to a defendant incarcerated on other charges, the Supreme Court of the United States has opined that a delay in bringing such a person to trial could aggravate and compound the three concerns of prejudice. Specifically, the Supreme Court has suggested that “the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed.” Additionally, “the duration of his present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pendency of another criminal charge outstanding against him.” Accordingly, the trial court erred by weighing this factor in favor of the State because Johnson was incarcerated on other charges, and the court must reevaluate this factor on remand.

(ii) Minimizing Anxiety and Concern to the Defendant. Because anxiety and concern are “always present to some extent,” absent some unusual showing, this factor is not likely to be determinative in a defendant’s favor. And here, the trial court found that Johnson did not present sufficient evidence for this category to weigh in his favor. Johnson disagrees with the trial court’s finding, arguing that his testimony regarding an “inability to obtain medical treatment and participate in programs for Department of Corrections inmates designed to assist in reducing incarceration time” was sufficient evidence of anxiety and concern. However, we agree with the trial court that Johnson failed to present “evidence that the delay caused him significant anxiety and concern beyond that generally experienced by defendants in his situation.”

(iii) Limiting Possibility of Impaired Defense. Johnson also argues that during the delay in bringing his case to trial, his girlfriend—who would have served as an alibi witness—passed away. According to Johnson, his deceased girlfriend would have testified to being with him on the night that the relevant crimes were committed. However, because it is undisputed that his girlfriend’s son also saw Johnson that night and could present the same alibi testimony, the court found that this final interest weighed against Johnson.

To establish prejudice by an impaired defense, Johnson was required to “show that the missing witness could supply material evidence for the defense.” And it is well established that “[i]f witnesses die or disappear during a delay, the prejudice is obvious.” Although Johnson argues that testimony by his deceased girlfriend’s son will be less credible due to the son only having stopped by when the girlfriend was with Johnson the entire night, the purported testimony would still present Johnson’s alibi. Thus, to the extent that the trial court weighed this consideration in the State’s favor because available testimony would be cumulative of the purported testimony by the missing witness, the trial court did not err.

However, as additional support for its finding, the trial court found that Johnson had failed to properly preserve an alibi defense. To the extent that the trial court weighed this factor in favor of the State/against Johnson because Johnson did not file a notice of intention to call an alibi witness, the trial court erred.

Decided February 3, 2012.

Christopher W. Willis, for appellant.

Penny A. Penn, District Attorney, James A. Dunn, Assistant District Attorney, for appellee.

Pursuant to OCGA § 17-16-5, upon written demand by the prosecuting attorney, “the defendant shall serve within ten days of the demand ... or ten days prior to trial, whichever is later, or as otherwise ordered by the court, upon the prosecuting attorney a written notice of the defendant’s intention to offer a defense of alibi.” Johnson not having gone to trial, it was improper to hold that he had failed to preserve the use of an alibi witness.

(e) Balancing the Barker Factors. Because the trial court made factual findings that were unsupported by the record and misapplied the Barker factors, “the deference we owe to the trial court’s ultimate ruling is diminished.” And given these errors, we cannot conclude that “the trial court would have still been required to weigh those factors in the manner in which it did, so as to determine that [Johnson’s] right to a speedy trial had not been violated.” Indeed, “the trial court could not properly balance the Barker factors, and the trial court’s order must be vacated and the case remanded for the trial court to exercise its discretion again using properly supported factual findings and the correct legal analysis, reflected in an adequate written order.”

Accordingly, for all the forgoing reasons, we vacate the trial court’s judgment and remand the case for proceedings consistent with this opinion.

Judgment vacated and case remanded with direction.

Mikell, E J., and Boggs, J., concur.

        Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972).

       Because Johnson has been appointed five different attorneys, we will refer to them by name in an effort to avoid any confusion.

       A Certificate of Initial Visitation filed with the trial court on December 12,2007, reflects conflicting information regarding the date of this visit. According to Johnson, the visit occurred on November 23, 2007, but McFarland indicated that the visit occurred on November 28, 2007. We note that the record does not contain a notice of withdrawal by McFarland. Instead, McFarland’s withdrawal is memorialized through an explanation by Johnson’s counsel at the motion-to-dismiss hearing and, to some extent, by Johnson’s testimony. Nevertheless, the State does not dispute the general timing or circumstances of McFarland’s withdrawal.

       We note that “Reappointment” was inexplicably handwritten at the top of this form, over the title “Appointment of Counsel.”

       The record reflects two notices of arraignment and a bondsman surrender during this period, but it does not reflect any motions filed by Schuder or any other documents.

       Although the trial court held a hearing on Turner’s motion to withdraw, the record before us does not contain a transcript from this hearing.

       Even after Johnson filed his notice of appeal, the trial court continued to place his case on trial calendars for January, February, May, and June 2011. In July 2011, Johnson wrote to the clerk of the superior court to inquire as to the status of his appeal after learning that the record had not been transmitted to this Court. We remind the trial court that “pre-trial orders denying a constitutional speedy trial claim are directly appealable.” Callaway v. State, 275 Ga. 332, 332 (567 SE2d 13) (2002). And in a criminal case, “the filing of a notice of appeal. . . deprives the trial court of its ‘power to execute the sentence.’ ” Waters v. State, 174 Ga. App. 438, 439 (1) (330 SE2d 177) (1985).

       We pause to note that although the State provided citations to the record in its brief, the State’s record citations are unhelpful as they do not correspond to the record before this Court, and in some instances, the State cites to documents and/or transcripts that are not in the record before us. We remind the State that “this Court will not cull the record on a party’s behalf.” Potts v. State, 296 Ga. App. 242, 246 (3) (c) (674 SE2d 109) (2009); see Bernoudy v. State, 245 Ga. App. 489, 491 n.2 (3) (538 SE2d 150) (2000) (“[0]ur rules require appellants and appellees to provide citations to material parts of the record or transcript.”); see also Court of Appeals Rule 25 (c) (2) (i) (“Each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.”).

       407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972)

       505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992).

        State v. Thaxton, 311 Ga. App. 260, 262 (715 SE2d 480) (2011); see also Doggett, 505 U. S. at 651-52 (II) (holding that the first factor in the Barker inquiry “is actually a double enquiry” because “[s]imply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay”).

        Thaxton, 311 Ga. App. at 262 (punctuation omitted); see also Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008).

        Thaxton, 311 Ga. App. at 262; see also Ruffin, 284 Ga. at 55-56 (2) (b).

        Thaxton, 311 Ga. App. at 262.

        Id. at 262-63.

        Id. at 263 (punctuation omitted); see also Ditman v. State, 301 Ga. App. 187, 187 (687 SE2d 155) (2009) (“The deference owed the trial court’s ruling is diminished . . . [when] it contains factual findings that are either clearly erroneous or unsupported by the record, or [when] it misstates or misapplies the law.”).

        See Thaxton, 311 Ga. App. at 263. See generally State v. Porter, 288 Ga. 524, 524-25 (705 SE2d 636) (2011) (“[B]ecause the trial court clearly erred in key factual findings and failed to enter a proper order balancing the relevant legal factors, the Court of Appeals should have vacated the trial court’s judgment and remanded for the trial court to exercise its discretion again based on the correct facts and law.”).

        See Thaxton, 311 Ga. App. at 263 (1).

        Ruffin, 284 Ga. at 55 (2).

        Id.

        Thaxton, 311 Ga. App. at 263 (1).

        Id.

        Id. at 264 (1).

       Ruffin, 284 Ga. at 55, 56 (2) (b) (punctuation omitted).

        Id. at 56 (2) (b) (i) (further holding that although lengthy pretrial delay cannot alone support a finding that a defendant’s constitutional right to a speedy trial has been violated, it is “part of the mix of relevant facts, and its importance increases with the length of delay” (punctuation omitted)).

        Id. at 56-57 (2) (b) (i) (further holding that because “the presumption that pretrial delay has prejudiced the accused intensifies over time,” an uncommonly long or excessive pretrial delay “merits consideration beyond its use as a liminal screening mechanism” (punctuation omitted)); see also Doggett, 505 U. S. at 652 (II) (“If the accused makes [a showing of presumptive prejudice], the court must then consider, as one factor among several, the extent to which the delay stretches beyond the hare minimum needed to trigger judicial examination of the claim.”).

        See State v. Reimers, 310 Ga. App. 887, 889 (2) (a) (714 SE2d 417) (2011) (“The trial court’s complete failure to consider the length of the delay in balancing the Barker factors was error.”).

        Thaxton, 311 Ga. App. at 264 (2) (a) (punctuation omitted).

        See, e.g., id. (holding that “[t]o the extent that the majority of the delay occasioned . . . was attributed to the pre-indictment delay, such delay was significant in the analysis of this factor,” which was presumably weighed against the State); Grizzard v. State, 301 Ga. App. 613, 615 (2) (a) (688 SE2d 402) (2009) (trial court properly weighed delay of eight years in bringing a defendant to trial against the State when State conceded that delay was uncommonly long).

        Thaxton, 311 Ga. App. at 265 (2) (b).

        Ruffin, 284 Ga. at 59 (2) (b) (ii); see also Barker, 407 U. S. at 522 n.15 (II) (“In large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself.” (punctuation omitted)).

        Ruffin, 284 Ga. at 59 (2) (b) (ii).

        Id. (providing, as examples, a defendant “going on the lam to avoid prosecution, filing a series of frivolous pretrial motions, or securing the unavailability of a critical prosecution witness”).

        See id. at 59-60 (2) (b) (ii) (recognizing inherent delays caused by State’s need to track down critical witnesses and the time that must be afforded to trial and appellate courts to consider motions and appeals in a “just and thoughtful manner”).

        Id. at 60 (2) (b) (ii).

        Id.

        Id.; see also id. at 61 (2) (b) (ii) (holding that “the government” is not limited to the prosecution and instead encompasses all state actors, including judges and indigent defense).

        Id. at 61 (2) (b) (ii) (punctuation omitted).

        See Simmons v. State, 304 Ga. App. 39, 42 (2) (b) (696 SE2d 75) (2010) (“Any failure of the indigent defense system to represent its clients is directly or indirectly the responsibility of the State and the trial court to oversee the functioning of the criminal justice system.” (punctuation omitted)).

        See Ditman, 301 Ga. App. at 191 (2) (b) (holding that further analysis of factor “turnfed] on the State’s reasons for the delay and how heavily those reasons should weigh against the State” when defendant was not indicted until seven months after arrest).

        See id. at 192 (2) (b) (trial court ignored allegation by defendant that “State was slow to comply with his discovery requests, which caused him to seek a continuance several months after . . . indictfment]”).

        See id.

       We also note that Johnson denied that such a hearing took place.

        See supra notes 30-42 & accompanying text.

        Ditman, 301 Ga. App. at 193 (2) (c) (punctuation omitted).

        Simmons, 304 Ga. App. at 43 (2) (c) (punctuation omitted); see also Porter, 288 Ga. at 528 (2) (c) (3) (“Our cases hold that an extended delay in asserting the right to a speedy trial should normally be weighed heavily against the defendant.”).

        Porter, 288 Ga. at 528 (2) (c) (3) (emphasis and punctuation omitted); see also Barker, 407 U. S. at 531 (IV) (“The strength of [a defendant’s] efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain.”).

        Thaxton, 311 Ga. App. at 267 (2) (c) (punctuation omitted).

        See, e.g., Maddox v. State, 218 Ga. App. 320, 321 (1) (461 SE2d 286) (1995) (“The trial court was clearly authorized to find that the pro se demand was of no legal effect whatsoever.”).

        Id. (punctuation omitted); see also Howard v. State, 307 Ga. App. 822, 827-28 (2) (c) (706 SE2d 163) (2011) (“[T]his Court has repeatedly held that a pro se demand for a speedy trial filed while a criminal defendant is represented by counsel was of no legal effect whatsoever.” (punctuation omitted)).

       Johnson urges us to adopt an exception for pro se motions that are filed when a criminal defendant’s counsel is mistaken as to the law and incorrectly refuses to file a motion on the defendant’s behalf. We decline to carve out such an exception and note that a criminal defendant has the option of making a claim for ineffective assistance of counsel when he or she believes that counsel’s representation was deficient in any respect.

        See Howard, 307 Ga. App. at 827-28 (2) (c) (holding that defendant’s pro se motions asserting right to speedy trial were ineffective because they were filed when defendant was represented by counsel).

       As further detailed supra, Attorney McFarland was appointed on November 21, 2007, but shortly thereafter informed Johnson that he would be unable to serve as counsel. On November 30, 2007, Johnson signed his demand for a constitutional speedy trial, which was filed by the clerk of court on December 6, 2007. Also on November 30,2007, Gregg Schuder was appointed to represent Johnson, with the appointment form filed on December 5, 2007, and an entry of appearance filed on December 4.

        Grizzard, 301 Ga. App. at 617 (2) (d) (punctuation omitted).

        Ruffin, 284 Ga. at 65 (2) (iv) (punctuation omitted).

        See Smith v. Hooey, 393 U. S. 374, 378 (89 SC 575, 21 LE2d 607) (1969) (relating the three interests considered under the prejudice prong and holding that “[t]hese demands are both aggravated and compounded in the case of an accused who is imprisoned in another jurisdiction”).

        Id.

        Id.

        Ditman, 301 Ga. App. at 195 (2) (d) (punctuation omitted).

        Id.\ see also Brewington v. State, 288 Ga. 520, 524 (3) (b) (iv) (705 SE2d 660) (2011) (defendant’s allegation that he suffered from anxiety and depression, missed his family, and could not participate in activities of a non-incarcerated person were insufficient to show prejudice arising to level violating constitutional rights).

        Ditman, 301 Ga. App. at 195 (2) (d); see also Howard, 307 Ga. App. at 829 (2) (d) (“To prove prejudice due to the unavailability of. . . witnesses, [the defendant] must show that the unavailable witnesses could supply material evidence for the defense.” (punctuation omitted)).

        State v. Redding, 274 Ga. 831, 834 (561 SE2d 79) (2002) (punctuation omitted).

        See Jackson v. State, 244 Ga. 276, 277 (2) (260 SE2d 15) (1979) (holding that defendant was not prejudiced when missing eyewitness would have presented testimony cumulative of available witness); Hughes v. State, 228 Ga. 593, 595 (1) (c) (187 SE2d 135) (1972) (holding that defendant was not prejudiced when missing alibi witnesses would have presented testimony cumulative of available witnesses).

       OCGA § 17-16-5 (a) (emphasis supplied).

        Davis v. State, 308 Ga. App. 843, 847 (2) (e) (709 SE2d 343) (2011).

        Id.

        Reimers, 310 Ga. App. at 893 (3) (punctuation omitted).

        See Porter, 288 Ga. at 534 (2) (e) (“[T]he Court of Appeals should have vacated the order and remanded the case for the trial court to exercise its discretion again using properly supported factual findings and the correct legal analysis, reflected in an adequate written order.”); see also Reimers, 310 Ga. App. at 893 (3); Davis, 308 Ga. App. at 848 (2) (e).


source: Caselaw Access Project

author: Phipps, Presiding Judge.

license: Public Domain

text:
    A11A2373.
    BROWN v. THE STATE.
    (723 SE2d 115)
   Phipps, Presiding Judge.

After a nonjury trial, Yohanne Brown was convicted of aggravated assault and possession of a knife during the commission of a felony. He appeals, challenging the sufficiency of the evidence to support the convictions. Because the state did not present sufficient evidence of possession of a knife during the commission of a felony, that conviction must be reversed. For the reasons that follow, however, we affirm the conviction for aggravated assault.

Upon a finding of guilt following a bench trial, the presumption of innocence no longer applies, and on appeal, the appellate court construes the evidence in favor of the judge’s findings of fact. The appellate court does not weigh the evidence or determine witness credibility but merely determines the sufficiency of the evidence.

Construed in favor of the trial judge’s findings of facts, the evidence showed that on September 13, 2010 Brown was at a bar and became involved in a verbal altercation with another bar patron. Brown was drinking heavily, “yelling and screaming,” and the bar manager asked him to leave. Brown left, but threatened to return. When Brown came back about ten to twenty minutes later, the manager saw him reach into his back pocket and retrieve a folding knife. The manager testified, “I thought he was gonna stick me.” The manager again asked Brown to leave, but Brown refused and threatened to “get” the other patron. When Brown lunged toward the patron, the manager wrestled Brown for the knife. During the struggle with Brown, the manager received a cut on his finger.

1. Brown contends that the evidence was insufficient to sustain his conviction for aggravated assault because there was no evidence that he committed an assault with a deadly weapon. Brown argues that because the blade of the folding knife was not exposed at the time of his initial encounter with the manager and because he did not intend to harm the manager, the evidence was insufficient to establish an aggravated assault.

OCGA § 16-5-20 (a) (1), (2) defines “simple assault” as when a person “[ajttempts to commit a violent injury to the person of another; or . . . [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” Under OCGA § 16-5-21 (a) (2),

[a] person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury. . . .

The aggravated assault charge against Brown alleged that he “did make an assault upon the person of [the manager] with a deadly weapon, to wit: a knife, by pulling out a knife and attempting to cut [the manager], ...” The indictment thus charged Brown with aggravated assault by committing two acts (by pulling out a knife and by attempting to cut), but

[b]ecause the statute requires proof of only one act. . . , inclusion in the indictment of more than one such act is mere surplusage, which is unnecessary to constitute the offense, need not be proved, and may be disregarded. Moreover, when an indictment alleges that an aggravated assault was committed by two means, the [s]tate need prove only one of the two acts constituting the crime of aggravated assault to sustain the conviction.

“[I]f the victim is in reasonable apprehension of an immediate violent injury from a weapon, an aggravated assault has occurred.” “Whether a victim has been placed in reasonable apprehension of injury is a question of fact. . . .” Evidence of intent to injure is not required to prove an aggravated assault. We have held that evidence of a closed knife was sufficient to show the requisite force to sustain a conviction for armed robbery where the victim testified that she was afraid. Indeed, “[t]he mere presence of a deadly weapon would normally place a victim in reasonable apprehension of being injured violently.”

In this case, the evidence was sufficient for the trial court to find that when Brown retrieved the knife and the manager saw it, Brown had committed an act which placed the manager in reasonable apprehension of immediately receiving a violent injury. After being involved in a verbal altercation with another bar patron the manager asked Brown to leave, and Brown left, but returned shortly thereafter with a knife. He was again asked to leave, but refused to comply. The manager saw Brown reach into his back pocket and retrieve a knife, and he thought he would be cut. Brown lunged toward the other patron, and the manager, who wrestled with Brown for the knife, was injured.

Notably, as it concerns the allegation in the indictment that Brown attempted to cut the manager,

[w]hen an unintended victim ... is subjected to harm due to an unlawful act intentionally aimed at someone else . . . , the law prevents the actor from taking advantage of his own misdirected wrongful conduct and transfers the original intent from the one against whom it was intended to the one who suffered harm.

Thus, Brown’s attempt to harm the bar patron was transferred to the manager who was injured. Therefore, the evidence was sufficient to support the trial court’s determination that Brown committed the offense of aggravated assault.

2. The state concedes that the evidence was insufficient to convict Brown of possession of a knife during the commission of a felony based upon the length of the blade of the knife. Indeed, the length of the knife’s blade was less than three inches long. OCGA § 16-11-106 (b) (1) pertinently provides:

(b) Any person who shall have on or within arm’s reach of his or her person a . . . knife having a blade of three or more inches in length during the commission of, or the attempt to commit: (1) [a]ny crime against or involving the person of another; . . . and which crime is a felony, commits a felony. . . .

Thus, the conviction for possession of a knife during the commission of a felony must be reversed.

Judgment affirmed in part and reversed in part.

Andrews and McFadden, JJ., concur.

Decided February 3, 2012.

Kevin Armstrong, for appellant.

Gregory W. Edwards, District Attorney, Matthew Breedon, Assistant District Attorney, for appellee.

        Placanica v. State, 303 Ga. App. 302 (693 SE2d 571) (2010) (punctuation and footnote omitted).

       See Brown v. State, 242 Ga. App. 347, 348 (1) (529 SE2d 650) (2000).

       Id. (citations and punctuation omitted).

        Carter v. State, 248 Ga. App. 139 (1) (546 SE2d 5) (2001) (citation omitted).

        Williams v. State, 299 Ga. App. 345, 346-347 (682 SE2d 586) (2009) (citation omitted).

       See Ganaway v. State, 282 Ga. 297, 299 (2) (647 SE2d 590) (2007).

        Alford v. State, 204 Ga. App. 14, 15 (418 SE2d 397) (1992).

        Williams, supra at 347 (citation and punctuation omitted).

       See Carter, supra at 139-140 (1).

        Culler v. State, 277 Ga. 717, 720 (4) (594 SE2d 631) (2004) (footnote omitted).

       Id.; Carter, supra; Williams, supra at 346-347; Brown, supra; Alford, supra.


author: PHIPPS, Presiding Judge.

text:
    A11A2374.
    BROWN v. THE STATE.
    (723 SE2d 112)
   PHIPPS, Presiding Judge.

Yohanne Brown was convicted after a nonjury trial for escape and tampering with the operation of an electronic monitoring device. He appeals his conviction for escape, contending that the evidence was insufficient to support that conviction. For the reasons that follow, we affirm the conviction.

Upon a finding of guilt following a bench trial, the presumption of innocence no longer applies, and on appeal, the appellate court construes the evidence in favor of the judge’s findings of fact. The appellate court does not weigh the evidence or determine witness credibility but merely determines the sufficiency of the evidence.

So viewed, the evidence showed that on December 6, 2010, Brown was placed on electronic house arrest as a condition of bond while awaiting trial on criminal charges. The order provided pertinently that Brown “shall serve . . . 240 . . . days home confinement with electronic monitoring under the . . . Electronic House Arrest Program (‘EHAP’),” was on “Total Lock-down,” and was allowed to leave his home only to attend church. Brown was required to wear an electronic leg monitor equipped with a global positioning system to monitor his compliance with the home confinement provisions. Approximately two months after the monitor was placed on Brown’s leg, he cut off the monitor and fled. He was apprehended in another city at a bus station; a bus ticket on which his name appeared indicated a final destination outside of Georgia. At trial, Brown admitted that he had removed the electronic monitor.

Relying on OCGA § 16-10-52 (a) (2), Brown contends that the evidence was insufficient as a matter of law to support his conviction for escape because he was not in custody or confinement at the time of the incident giving rise to the escape charge. Relying on the same statute, the state, on the other hand, argues that electronically-monitored house arrest is confinement. Specifically, the state asserts that Brown was confined within the meaning of the statute because he was required to remain at his home at all times and the electronic monitor was designed to alert the state in the event Brown left his home, just as the state would be alerted if Brown left a jail cell. Alternatively, the state equated Brown’s home to a diversion center where the failure to return thereto could subject a defendant to prosecution for escape. The state also argued that not construing Brown as being in custody or confinement when on electronically-monitored house arrest would “end the use of electronic house arrest as a method of alternative confinement. . . [and] offenders would be free to escape house arrest with impunity.”

The issue before us is whether a conviction for escape may arise from a violation of house arrest that was imposed as a condition of pretrial release; specifically whether Brown’s placement on electronic pretrial release fits the definition of “lawful custody or lawful confinement” within the meaning of the escape statute, OCGA § 16-10-52 (a) (2).

OCGA § 16-10-52 (a) pertinently provides:

A person commits the offense of escape when he or she: ... (2) Being in lawful custody or lawful confinement prior to conviction, intentionally escapes from such custody or confinement; ... or (5) Intentionally fails to return as instructed to lawful custody or lawful confinement or to any residential facility operated by the Georgia Department of Corrections after having been released on the condition that he or she will so return. . . .

In interpreting statutes we are required to look diligently for the intention of the General Assembly as well as apply the ordinary signification to all words, except words of art or words connected with a particular trade or subject matter (which shall have the signification attached to them by experts in such trade or with reference to such subject matter). “Where the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly. In fact, where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” The text of the escape statute does not define “lawful custody or lawful confinement.” We therefore look to the ordinary meaning of the words, given that they are not terms of art; and we look for the intention of the General Assembly.

In Palmer v. State, the Supreme Court of Georgia looked to the escape statute to determine the meaning of the words “in the custody of the law” as provided in a statute proscribing sexual assault against persons in custody. The Court determined that the term “custody” in the escape statute “presupposes actual imprisonment or detention.” The Court further employed the definition of custody as found in the American Heritage Dictionary: “2. the state of being kept or guarded; and 3. the state of being detained or held under guard. . . .”

The American Heritage Dictionary defines the word “confine” as: “1. To keep within bounds; restrict. 2. To shut within an enclosure; imprison. 3. To restrict in movement. ...” And the word “confinement” is defined as: “1. a. The act of confining, b. The state of being confined.”

In Bond v. State we held that the defendant’s underlying felony conviction was the authority for her “confinement in the work release program” and thus the defendant was properly sentenced for felony escape after she signed out of a facility for one day and did not return. And for purposes of deciding the terms and conditions of probation, while expressly rejecting the notion that placement in a detention or diversion center or in the defendant’s own home constituted incarceration, we have recognized placement in a detention or diversion center or in the defendant’s own home as forms of “limited confinement.”

Decided February 3, 2012.

Kevin Armstrong, for appellant.

Gregory W. Edwards, District Attorney, Matthew Breedon, Assistant District Attorney, for appellee.

The General Assembly provided for the creation of programs of electronic pretrial release to, among other things, “[a]ssist[ ] sheriffs in alleviating jail overcrowding by creating alternative methods of pretrial release and monitoring and home confinement[.]” Indeed, the General Assembly found that “a program of electronic pretrial release, monitoring, and home confinement incorporates modern technology to accomplish” various purposes. Thus, the General Assembly explicitly recognized a defendant’s home as a place where he or she could be kept within bounds or restricted in movement, for purposes of the electronic pretrial release program.

Here, it is undisputed that Brown was in a state of being restricted to or detained within his home, under the guard of an electronic monitor. The order placing Brown on house arrest and requiring him to wear a leg monitor provided that Brown was to serve a specified number of days in home confinement with electronic monitoring, was on “Total Lock-down,” and was allowed to leave his home only to attend church. Brown violated these conditions by removing the monitor and leaving town. Applying the plain meaning to the terms “custody” and “confinement,” and looking diligently for the intention of the General Assembly, we find that a defendant participating in an electronically-monitored house arrest program is in lawful custody or lawful confinement, as provided in OCGA § 16-10-52. Thus, the evidence was sufficient to authorize a rational trier of fact to find Brown guilty of escape beyond a reasonable doubt.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

        Placanica v. State, 303 Ga. App. 302 (693 SE2d 571) (2010) (punctuation and footnote omitted).

       See OCGA § 17-6-1.1.

       OCGA § 16-10-52 (a) (5); Echols v. State, 233 Ga. App. 578 (505 SE2d 55) (1998) (under OCGA § 16-10-52 (a) (5), not reporting back to a diversion center constitutes the felony offense of escape).

       OCGA § 1-3-1 (a), (b); City of Roswell v. City of Atlanta, 261 Ga. 657 (1) (410 SE2d 28) (1991).

        Jackson v. State, 309 Ga. App. 24, 26 (1) (a) (709 SE2d 44) (2011) (footnote omitted).

       260 Ga. 330, 331 (393 SE2d 251) (1990).

       Id. at 331.

       Id.

       Id.; Krauss v. State, 263 Ga. App. 488, 489 (2) (588 SE2d 239) (2003).

       Second College Edition.

       263 Ga. App. 620, 621-622 (588 SE2d 801) (2003).

        Johnson v. State, 283 Ga. App. 425, 427 (2) (641 SE2d 655) (2007); McKinney v. State, 240 Ga. App. 812, 815 (2) (525 SE2d 395) (1999); Pierce v. State, 278 Ga. App. 162 (628 SE2d 235) (2006) (recognizing, for purposes of statute mandating that a defendant serve not less than seventy-two hours of incarceration upon a second DUI conviction within a five-year period, that house arrest is a form of limited confinement); Royal Indem. Co. v. Agnew, 66 Ga. App. 377, 379 (18 SE2d 57) (1941) (any portion of a body of laws may well be invoked to ascertain the meaning of words and phrases used in another part).

       Ga. L. 2009, p. 691, § 1 (emphasis supplied).

       Id. (emphasis supplied).

       See Placanica, supra.


author: SMITH, Presiding Judge.

text:
    A10A0547, A10A0548.
    POLLMAN et al. v. SWAN et al.; and vice versa.
    (723 SE2d 290)
   SMITH, Presiding Judge.

In Pollman v. Swan, 289 Ga. 767 (716 SE2d 191) (2011), the Georgia Supreme Court affirmed Division 1 and reversed a portion of Division 3 of this court’s opinion in Pollman v. Swan, 305 Ga. App. 369 (699 SE2d 582) (2010). The Supreme Court held that reliance is not an element of mail fraud, reversed the judgment of this court with respect to that holding, and remanded the case to this court for further proceedings not inconsistent with its opinion. On remand, we affirm the trial court’s grant of summary judgment on that claim. We do so because the trial court correctly held in the alternative that the Pollmans failed to show other elements of a RICO claim based upon mail fraud.

In Division 3 of our prior opinion, we held in part that “ ‘(p)re-termitting whether the action meets the definition of mail fraud, the contract language precludes a showing of reliance; thus, no mail fraud can be shown,’ ” Pollman, supra, 305 Ga. App. at 374 (3), quoting Markowitz v. Wieland, 243 Ga. App. 151, 155 (2) (b) (532 SE2d 705) (2000). The Georgia Supreme Court granted certiorari on two issues: (1) whether Markowitz’s requirement of reliance was in conflict with Bridge v. Phoenix Bonding & Indem. Co., 553 U. S. 639 (128 SC 2131, 170 LE2d 1012) (2008); and (2) whether summary judgment was correctly granted against the Pollmans on the issue of proof of damages.

With respect to the first issue, our Supreme Court noted the holding in Bridge that “the common-law requirement of justifiable reliance in fraud is not a requirement of the mail fraud statute.” 289 Ga. at 768 (1). Without expressly overruling Markowitz, the court “reverse[d] that portion of the judgment of the Court of Appeals affirming the grant of summary judgment to appellees on the RICO claim based on mail fraud and remand[ed] the case to the Court of Appeals for further proceedings consistent with this opinion.” Id.

That portion of Division 3 is hereby vacated and the opinion of the Supreme Court is made the opinion of this court. The absence of reliance as an element of mail fraud “does not, however, result in reversal of the grant of summary judgment. A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.” (Citation and punctuation omitted.) Gilbert v. City of Jackson, 287 Ga. App. 326, 327 (1) (651 SE2d 461) (2007).

In its order granting summary judgment on the Pollmans’ RICO claims, the trial court made alternative findings in addition to failure to show reliance under Markowitz: that the Pollmans failed to show any predicate act, that they failed to show any actual loss or damages, and that they failed to show that any alleged predicate act was the proximate cause of any loss or damages. As directed, we analyze the trial court’s order in the context of our Supreme Court’s opinion.

First, we consider the application of the United States Supreme Court’s holding in Bridge, supra, to the facts presented here. In Bridge, the plaintiffs and defendants were among the bidders at county tax lien auctions. 553 U. S. at 642. When multiple bidders offered the same low bid, the county allocated the sales among the low bidders on a rotating basis. Id. at 643. The plaintiff bidders asserted that the defendant bidders committed mail fraud by using multiple entities to submit duplicate bids to the county, thereby increasing the number of times the county’s rotation would fall to them and depriving plaintiffs of their fair share of the liens. Id. at 643-644.

The District Court dismissed the RICO claims for lack of standing, reasoning that only the county, not “ ‘other competing buyers’ ” such as the plaintiffs, had relied upon the alleged misrepresentations, and that plaintiffs therefore could not prove reliance. Bridge, supra, 553 U. S. at 645. The Court of Appeals for the Seventh Circuit reversed, id., and the United States Supreme Court affirmed, rejecting the argument that “first-party reliance” is necessary to sustain a civil RICO claim predicated on mail fraud. Id. at 650-652 (III) (A).

But the Supreme Court in Bridge points out that

none of this is to say that a RICO plaintiff who alleges injury “by reason of’ a pattern of mail fraud can prevail without showing that someone relied on the defendant’s misrepresentations. In most cases, the plaintiff will not be able to establish even but-for causation if no one relied on the misrepresentation.

(Citation omitted; emphasis in original.) Id. at 658. And as Bridge acknowledges, id. at 654 (III) (B), Holmes v. Securities Investor Protection Corp., 503 U. S. 258 (112 SC 1311, 117 LE2d 532) (1992), holds that “but-for” causation cannot support a RICO claim; there must be proximate cause. Id. at 269-270. “When a court evaluates a RICO claim for proximate causation, the central question it must ask is whether the alleged violation led directly to the plaintiffs injuries.” Anza v. Ideal Steel Supply Corp., 547 U. S. 451, 461 (II) (126 SC 1991, 164 LE2d 720) (2006), cited in Bridge, supra, 553 U. S. at 654 (III) (B). See also American Assn. of Cab Cos. v. Parham, 291 Ga. App. 33, 39 (3) (c) (661 SE2d 161) (2008) (citing Anza, supra).

Here, in contrast to Bridge, there is no question of third-party reliance on an alleged misrepresentation to another person or entity. The only parties claiming misrepresentation and reliance — indeed, the only plaintiffs — are the Pollmans. And multiple transactions arising out of a pattern of racketeering activity are not alleged, only the sale of a single townhome unit to the Pollmans. Accordingly, if the Pollmans did not rely upon the alleged misrepresentations, those misrepresentations could not be the proximate cause of injury, and summary judgment remained appropriate. “A plaintiff cannot allege merely that an act of racketeering occurred and that he lost money. He must show a causal connection between his injury and a predicate act. If no injury flowed from a particular predicate act, no recovery lies for the commission of that act.” Pelletier v. Zweifel, 921 F2d 1465, 1497 (II) (A) (1) (11th Cir. 1991).

The trial court correctly found an absence of proximate cause. As noted in the original opinion, the Pollmans were aware, through the report of their home inspector and their admitted personal knowledge of uncompleted work at the time of closing, of the facts as to which they claim misrepresentations were made. 305 Ga. App. at 373 (2). But they failed to investigate further, failed to obtain the engineering report recommended by their home inspector, failed to amend the contract to require a structural inspection, and went forward with the closing at the scheduled time. Id. at 373-374 (2).

Unless an untrue statement is believed and acted upon, it can occasion no legal injury. It is essential, therefore, that the party addressed should trust the representation, and be so thoroughly induced by it that, judging from the ordinary experience of mankind, in the absence of it he would not, in all reasonable probability, have entered into the contract or other transaction.

Decided December 29, 2011

Reconsiderations denied February 7,2012

Tony Center, for appellants.

Oliver Maner, Patrick T. O’Connor, Benjamin M. Perkins, William A. Trotter III, for appellees.

(Citations and punctuation omitted.) Pelletier, supra, 921 F2d at 1508-1509 (II) (A) (2) (b) (v) (summary judgment in RICO mail fraud claim appropriate when plaintiffs “injury, if any, was not proximately caused by the misrepresentations and omissions”). Id. at 1510.

Any injury was not proximately caused by the alleged misrepresentations, but rather by the Pollmans’ decision to go forward with the purchase despite knowledge of the facts as to which they were supposedly misled. The Pollmans cannot show, therefore, the proximate cause required by RICO. Pelletier, supra, 921 F2d at 1510. See also Maddox v. Southern Engineering Co., 231 Ga. App. 802, 805 (1) (500 SE2d 591) (1998) (citing Pelletier, supra).

Finally, the trial court also correctly concluded that “there is no evidence that the plaintiffs incurred an actual loss. . . .’’As noted in the original opinion, 305 Ga. App. at 370-372 (1), and acknowledged by the Georgia Supreme Court, 289 Ga. at 768-769 (2), the Pollmans failed to demonstrate damages as of the time of the alleged loss.

For all these reasons, the triad court correctly granted summary judgment on the Pollmans’ RICO claims based on mail fraud.

Judgment affirmed.

Mikell, C. J., and Adams, J., concur.

       The Supreme Court affirmed the grant of summary judgment on this ground. 289 Ga. at 769 (2).

       Our Supreme Court declined to expand its grant of certiorari to apply the “right for any reason” rule. 289 Ga. at 768, n. 2.

       This dovetails with the well-established Georgia law that a RICO claim cannot be asserted with respect to a single transaction. OCGA § 16-14-3 (8); Raines v. State, 219 Ga. App. 893, 894 (1) (467 SE2d 217) (1996) (“sale of timber from a single parcel of real property, by means of a single deed, in one isolated transaction, cannot be broken down into two predicate acts”); Cobb v. Kennon Realty Svcs., 191 Ga. App. 740, 741-742 (2) (382 SE2d 697) (1989) (read estate transaction among four persons and a company, including several loans, while complex, constituted “only the one extended transaction between [appellant] and the appellees” and not “a pattern of racketeering activity” within meaning of RICO).


author: Miller, Judge.

text:
    A11A2030.
    STOKES v. THE STATE.
    (723 SE2d 4)
   Miller, Judge.

In August 2010, George Stokes pled guilty to two counts of voluntary manslaughter (OCGA § 16-5-2 (a)) and one charge of arson in the first degree (OCGA § 16-7-60 (a) (1)). In March 2011, Stokes filed a pro se motion in arrest of judgment, which the trial court dismissed as being untimely filed.

Stokes, proceeding pro se on appeal, contends that his convictions were void because the indictment was defective for failing to charge proper venue, the two convictions for voluntary manslaughter should have merged under OCGA § 16-1-7 (a), and he entered his guilty plea unknowingly since he was not informed of the defective indictment. We discern no error and affirm.

A motion in arrest of judgment is one means by which a defendant may raise a general demurrer to challenge the validity of an indictment. See Shelton v. State, 307 Ga. App. 599, 603 (3) (b) (705 SE2d 699) (2011) (where no general demurrer was interposed and judgment of conviction was entered, a motion in arrest of judgment or habeas corpus are the only remedies available to challenge the validity of the indictment). However, “[a] motion in arrest of judgment must be made during the term at which the judgment was obtained.” OCGA § 17-9-61 (b); Johnson v. State, 298 Ga. App. 639, 645 (4) (a) (680 SE2d 675) (2009). Here, the judgment of conviction was entered on August 3, 2010, during the trial court’s August term. OCGA § 15-6-3 (24) (A). Stokes did not file his motion for arrest of judgment until March 17, 2011, which was during the February term of court. Id. Consequently, Stokes’s motion was not timely filed. See OCGA § 17-9-61 (b); Lay v. State, 289 Ga. 210, 211 (2) (710 SE2d 141) (2011).

Moreover, the substance of Stokes’s contention is properly construed as a challenge to his convictions — rather than his sentences — and therefore, the issue is not properly before us. We note that a void sentence may be challenged at any time. See Spencer v. State, 309 Ga. App. 630, 630 (2) (710 SE2d 837) (2011). But, here, Stokes does not contend that his sentence imposed a greater punishment than the law allows. Stokes’s claim that he was not informed that the indictment failed to charge venue, a critical element of the offense, “relates to the validity of his conviction, not his sentence, and thus cannot support a void sentence claim.” Ward v. State, 311 Ga. App. 53, 53-54 (714 SE2d 731) (2011). Additionally, “a claim that a charge should have merged under OCGA § 16-1-7 is a specific attack on the conviction.” Williams v. State, 287 Ga. 192, 193 (695 SE2d 244) (2010). Consequently, “if a defendant labels a motion as one in arrest of judgment, but in substance it is a petition to vacate or modify a judgment of conviction, which is not an appropriate remedy in a criminal case, the appeal [must] be dismissed.” (Citation and punctuation omitted.) Lay, supra, 289 Ga. at 212 (2), n. 2.

Since Stokes’s motion was not timely filed, habeas corpus is the only means now available for challenging his guilty plea. See McGruder v. State, 307 Ga. App. 379, 380 (2) (705 SE2d 175) (2010). Therefore, we affirm the trial court’s dismissal of Stokes’s motion.

Judgment affirmed.

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

Decided January 18, 2012

Reconsideration denied February 7, 2012.

George J. Stokes, pro se.

S. Hayward Altman, District Attorney, for appellee.

       The trial court alternatively found that it would deny the motion on the merits even if the motion had been timely filed.


author: BOGGS, Judge.

text:
    A11A1530.
    LAKES v. THE STATE.
    (722 SE2d 859)
   BOGGS, Judge.

Corey Lakes appeals from his convictions for robbery, kidnapping, rape, aggravated sodomy, financial transaction card theft, and identity fraud. He contends he is entitled to a new trial because the trial court erred by: (1) admitting a similar transaction; (2) denying his motion for a mistrial; (3) giving an inapplicable jury charge on intoxication of a rape victim; and (4) denying his claim of ineffective assistance of counsel. He also asserts that prosecutorial misconduct entitles him to a new trial. For the reasons explained below, we find no merit in these assertions and affirm.

Viewed in the light most favorable to the verdict, the record shows that on July 27, 2007, the victim and her brother were searching for their parked car after leaving a club in downtown Atlanta around 1:30 or 2:00 a.m. A witness described both of them as obviously drunk. The victim kept falling over and stopping, with her brother urging her to get up. The witness helped them find their car, along with four other men who insisted on helping as well. After the victim entered the passenger seat and her brother got into the driver’s seat, the witness started to walk away. When he heard a scream, he turned around and saw one of the four men “trying to force himself in the front passenger seat.” The brother drove the car in an attempt to escape, but stopped near the entrance to an underground mall in the hope of finding help. He got out of the driver’s seat and attempted, with the help of the witness, to pull the man out of the car. A second man then jumped into the driver’s seat and drove away with the victim and the man in the passenger seat. The brother was dragged several feet by the car until he fell off and broke his finger. While calling and talking with a 911 operator, the brother and the witness ran behind the car until they could not see it anymore. Police officers arrived six minutes after the brother lost sight of the car.

The victim testified that after her brother fell off the car, she was taken by the two men onto the interstate for about 15 minutes while the two men “were screaming between each other asking [her] for money.” After the men took $10 and her ATM card, the driver asked the other man to get out of the car after exiting the highway. The driver then took the victim to a drive-through ATM where he used her pin number to withdraw $100. Next, he drove to a gas station, where he asked someone standing outside to buy condoms and a pack of cigarettes. Afterward, he drove to the driveway of an abandoned house where he threatened to shoot the victim if she did not perform oral sodomy on him. He forced the victim to perform oral sodomy and then raped her. After ejaculating on her skirt and shirt, the man “started getting paranoid and told [her] to take everything off and he was wiping [her] down [with her brother’s shirt] and just acting crazy.” He threw her clothes out of the window and drove away. When her cell phone started ringing and a car pulled up nearby, he told the victim to get out of the car with her phone and clothes from her brother’s bag and drove away. The victim ran to the man in the other car and called the police. The victim testified that although she was intoxicated, she was certain “he forced himself onto [her].”

Police investigating the crime learned that someone was using the victim’s ATM card after the rape. At one location where it was used, the police were able to review the surveillance tape with the store owner, who identified the man using the ATM card as a regular customer named Corey. The police issued a warrant for Lakes’ arrest. During the execution of the arrest warrant, Lakes engaged police in a high-speed chase ending in an accident before his arrest. The store owner testified at trial and identified Lakes as the man he knew as Corey who had used the ATM card.

Detectives found the victim’s shirt in the area where the rape occurred, and DNA in semen found on the shirt matched that of Lakes. The victim identified Lakes at trial as the man who drove her brother’s car and raped her. The witness who helped the victim and her brother find their car also identified Lakes in a photographic lineup and at trial.

A similar transaction witness testified that on December 24, 2006, seven months before the rape at issue in this case, she and her boyfriend went to a club where they drank a lot of alcohol. She testified that she was kicked out of the club around 1:00 or 2:00 a.m. after tripping a couple of times and that her boyfriend remained inside to close out the tab. The next thing she remembered was waking up in her car with a man who removed her clothing, threatened to kill her with a gun, and forced her to perform oral sodomy. When he stopped at a convenience store and got out of the car, she ran to a payphone and called 911. The witness acknowledged there were periods of time that evening in which she did not know what happened because she had too much to drink. Police subsequently arrested Lakes on January 8, 2007, while he was in possession of the similar transaction victim’s car, which had been reported stolen. At the time of trial, Lakes had not been charged or arrested for any sexual offenses in the similar transaction case.

The State presented testimony that rape kit evidence was collected from the similar transaction victim and that police learned in May 2007 that “the evidence from the victim’s rape kit came back with some DNA evidence.” Police obtained a search warrant to obtain a buccal swab for the purpose of collecting DNA from Lakes. The record shows that the rape kit evidence collected from the similar transaction victim, along with the buccal swab from Lakes, were submitted to the GBI for DNA testing. Although the GBI was not provided with a known DNA sample from the victim, a forensic biologist determined that it was Lakes’ DNA on the rectal swab from the similar transaction victim’s rape kit.

1. We find no merit in Lakes’ claim that the trial court erred by allowing the State to introduce evidence regarding the similar transaction. The procedural guidelines for admitting similar transaction evidence are well established. Pareja v. State, 286 Ga. 117, 119 (686 SE2d 232) (2009). Generally, “evidence of independent offenses committed by a defendant is irrelevant and inadmissible in a trial for a different crime.” Id. In some cases, however, evidence of similar crimes can be admitted if “its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact.” (Citation and punctuation omitted.) Id. Before admitting evidence of prior crimes,

the trial court must determine that the State has affirmatively shown that: (1) the State seeks to admit evidence of the independent offenses or acts for an appropriate purpose; (2) there is sufficient evidence that the accused committed the independent offenses or acts; and (3) there is sufficient connection or similarity between the independent offenses or acts and the crimes charged so that proof of the former tends to prove the latter.

Id. “Particularly in the area of sexual offenses, the admissibility of similar transaction evidence is liberally construed. Evidence of an earlier assault on a woman is material to the issue of consent or the lack thereof, and has a direct bearing on appellant’s bent of mind.” (Citation and punctuation omitted.) Brooks v. State, 230 Ga. App. 846, 847 (1) (498 SE2d 139) (1998).

In this case, the similarities are pronounced. Both women were intoxicated after leaving a club and sexually assaulted while in their own cars. Both women were forced to perform oral sodomy after being threatened with being shot. Lakes was later found in possession of the cars belonging to both victims, and the incidents happened seven months apart. The trial court did not err by admitting the similar transaction evidence to show Lakes’ state of mind or intent. See Breland v. State, 287 Ga. App. 83, 84-86 (1) (651 SE2d 439) (2007).

2. Lakes contends the trial court should have granted his motion for a mistrial based upon the following portion of the State’s opening statement regarding the similar transaction victim:

He kept her car, not for one day, not for two days, but for at least ten days, driving around DeKalb County like it was his car. You will hear that he is at the Wal-Mart, and he gets in trouble at the Wal-Mart. The police then follow him to the car where he admits to what happened at the Wal-Mart, . . . They run the tags and they realize that it is a carjacking and a rape case that the car is involved in. They take him in.

Lakes’ counsel did not make a contemporaneous objection, but instead waited until the conclusion of the State’s opening to move for a mistrial on the ground that the State put his character in issue for a shoplifting offense that he was never charged for and that the State “implied to the jury that he is being charged for this other alleged rape. ...” The trial court denied the motion.

“[A] defendant must timely object to the alleged impropriety in opening argument so that the trial court can take remedial action, if any is warranted. Having failed to assert a contemporaneous objection, [Lakes] has waived his right to complain about the remarks on appeal.” (Citations, punctuation and footnote omitted.) Brooks v. State, 284 Ga. App. 762, 764 (644 SE2d 891) (2007). See also Mullins v. Thompson, 274 Ga. 366, 367 (2) (553 SE2d 154) (2001) (objection to improper closing argument must be made during closing argument, not at conclusion of argument). Additionally, even if the error were somehow preserved for our review, the overwhelming evidence of Lakes’ guilt renders any error harmless. Brooks, supra.

3. Lakes asserts that the trial court erred by giving the following unrequested charge to the jury: “Sexual intercourse with a woman whose will is temporarily lost from intoxication or unconsciousness arising from the use of drugs or other cause or sleep is rape.” While the trial court may have erred by giving an inapplicable charge, “in the context of the issues being tried and of the evidence as a whole, we hold that the charge was harmless — i.e., that it is highly probable that it did not contribute to the verdict.” Gober v. State, 203 Ga. App. 5, 7-8 (7) (416 SE2d 292) (1992) (trial court’s error in giving charge on intoxication of victim in rape case harmless), disapproved on other grounds, Morgan v. State, 267 Ga. 203, 204-205 (2) (476 SE2d 747) (1996) (disapproving Division 5), overruled on other grounds, Dudley v. State, 273 Ga. 466, 468, n. 4 (542 SE2d 99) (2001) (overruling Division 1). See also Stover v. State, 293 Ga. App. 210, 213-214 (1) (b) (666 SE2d 602) (2008) (trial court’s error in charging on presumption of force against child harmless in light of overwhelming evidence of defendant’s guilt in rape case).

4. Lakes maintains that he is entitled to a new trial based upon prosecutorial misconduct in soliciting testimony from a law enforcement officer that after Lakes denied committing the rape of the similar transaction victim, he admitted to being “a pimp.” We cannot consider this claim, however, because Lakes failed to object. “The contemporaneous objection rule cannot be avoided by characterizing trial occurrences as examples of prosecutorial misconduct.” (Citation and punctuation omitted.) Sanders v. State, 289 Ga. 655, 659 (2) (715 SE2d 124) (2011).

5. Lakes asserts nine grounds of ineffective assistance of counsel. In order

to prevail on a claim of ineffective assistance of trial counsel, Appellant bears the burden of showing both that trial counsel was deficient and that he was prejudiced by the deficiency. With respect to the first requirement, Appellant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.

(Citations and punctuation omitted.) Martinez v. State, 289 Ga. 160, 161 (2) (709 SE2d 797) (2011). In order to show the requisite prejudice, Appellant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Miller v. State, 285 Ga. 285, 285-287 (676 SE2d 173) (2009). “When reviewing an ineffective assistance claim, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Gandy v. State, 290 Ga. 166, 170 (4) (718 SE2d 287) (2011). See also Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000) (clarifying that clearly erroneous standard applies solely to trial court’s factual findings and that no deference owed to trial court’s legal conclusions).

We have carefully reviewed the trial transcript and the motion for new trial transcript and have determined that ample evidence supports the trial court’s finding that Lakes did not carry his burden of proving ineffective assistance.

(a) Lakes’ claim with regard to his counsel’s failure to move for a mistrial based upon the admission of the similar transaction evidence has no merit. The trial court did not err by admitting this evidence for the reasons stated in Division 1 of this opinion. “Trial counsel’s failure to pursue a meritless motion does not constitute ineffective assistance of counsel.” Boatright v. State, 308 Ga. App. 266, 269 (1) (a) (707 SE2d 158) (2011). See also Lupoe v. State, 284 Ga. 576, 579-580 (3) (f) (669 SE2d 133) (2008).

(b) Lakes contends that trial counsel failed to timely object to the emergency room doctor’s testimony that victims “tell us their story and we discuss with them the procedures if they decide that they would like to go further and press charges. Then we proceed with the rape kit.” The record shows that the doctor provided this testimony when answering the State’s question about her “procedures in examining a patient of an alleged assault[.]” (Emphasis supplied.) Outside the presence of the jury, counsel objected and moved for a mistrial based on the witness talking about a victim pressing charges. The trial court sustained her objection, but denied her motion for a mistrial, and counsel did not ask for a curative instruction. In the motion for new trial hearing, trial counsel testified that she usually does not ask for a curative instruction because “it just draws attention to bad things.”

This claim of ineffective assistance has no merit because the record shows that counsel objected and then made a strategic decision not to seek a curative instruction. This “decision not to get curative instructions was part of a legitimate trial strategy and is within the range of reasonable professional conduct.” Cross v. State, 271 Ga. 427, 432 (3) (b) (520 SE2d 457) (1999). See also Stillwell v. State, 294 Ga. App. 805, 807-808 (2) (b) (670 SE2d 452) (2008).

(c) Lakes maintains that his trial counsel should have objected when the prosecutor referred “to the alleged kidnapping as being a foregone conclusion.” According to Lakes, this statement constituted a comment on the ultimate issue of whether the victim was kidnapped. We have reviewed the portion of the record relied upon by Lakes and agree with trial counsel’s assessment in the motion for new trial hearing that the prosecutor’s question did not treat the kidnapping as a “foregone conclusion.” And, contrary to Lakes’ assertions, this question simply cannot be construed as a comment upon the ultimate issue, and it did not inject the prosecutor’s personal opinion of guilt into the case. Compare Mangrum v. State, 285 Ga. 676, 679 (4) (681 SE2d 130) (2009) (witness generally not permitted to express opinion regarding ultimate issue in case); Carruthers v. State, 272 Ga. 306, 311 (3) (a) (528 SE2d 217) (2000) (“prosecutor may not express his or her personal opinion in closing argument”), overruled on other grounds, Vergara v. State, 283 Ga. 175, 177 (1) (657 SE2d 863) (2008).

Decided February 7, 2012.

Dell Jackson, for appellant.

Additionally, the record shows that counsel asserted a relevance objection to the investigator’s response that was sustained by the trial court. We ñnd no merit in this portion of Lakes’ ineffective assistance claim because he has failed to meet his burden of demonstrating deficient performance on the part of his trial counsel.

(d) We find no merit in Lakes’ claim of ineffectiveness based upon his counsel’s failure to seek a curative instruction after the trial court sustained her objection to a detective’s testimony that this was a “tough incident” and “the kind a detective does not want to deal with.” Trial counsel’s decision not to seek a curative instruction was strategic and does not amount to ineffective assistance of counsel in this case. See Cross, supra, 271 Ga. at 432 (3) (b); Stillwell, supra, 294 Ga. App. 807-808 (2) (b).

(e) In his remaining claims of ineffective assistance, Lakes contends his counsel deficiently performed by failing to object properly to the following testimony: (i) the emergency room doctor beginning her description of a rape exam with the statement: “When a patient comes in that’s been the victim of a sexual assault”; (ii) a police officer testifying about his expressions of sympathy for the victim during her outcry statement; (iii) a police officer using the word rape when he described a transfer of the case to another police unit “because there was a rape involved”; (iv) the prosecutor asking a police officer whether he considered himself “a good homicide detective” and the officer responding, “I’m very proud of what I do, yes”; and (v) a police officer testifying that Lakes referred to himself as a pimp. After carefully reviewing the record and the merits of each particular claim of ineffective assistance, we find that even if we were to assume that Lakes’ trial counsel deficiently performed by failing to object as outlined above, he cannot meet his burden of proving that prejudice resulted from such performance based upon the overwhelming evidence against him. See Bridges v. State, 286 Ga. 535, 540 (5) (690 SE2d 136) (2010) (finding no prejudice resulted from counsel’s failure to object to ultimate issue testimony); Frazier v. State, 263 Ga. App. 12, 16 (3) (c) (587 SE2d 173) (2003) (finding no prejudice from counsel’s failure to raise ultimate issue objections to officer’s testimony that money in pocket of defendant belonged to the victim); Love v. State, 305 Ga. App. 573, 573-574 (699 SE2d 872) (2010) (overwhelming evidence precluded finding of prejudice from counsel’s deficient performance in introducing client’s criminal history).

Judgment affirmed.

Mikell, P. J., and Dillard, J., concur.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.


text:
    A11A1755.
    THE STATE v. BARNETT et al.
    (722 SE2d 865)
   BOGGS, Judge.

The State appeals from the trial court’s grant of the motion to suppress filed by defendants Jack Barnett, Jamie B. Chaves, and C. Lauriston McLeod. Because the trial court correctly concluded that the “no-knock” provision in the search warrant was unsupported by particular facts and circumstances justifying the need for its use and that no exigent circumstances were shown, we affirm.

On August 19, 2010, a narcotics agent for the Fayette County sheriffs office obtained a “no-knock” warrant to search a house in Fayetteville, Georgia. In the affidavit in support of the warrant, he stated that on August 19, 2010, he searched the trash receptacle on the curb in front of the residence and found marijuana, “blunt” wrappers, and rolling papers containing marijuana residue. A records check performed by the agent indicated that McLeod and Chaves lived there. In support of the “no-knock” provision of the warrant, the agent stated:

It has been the experience of this affiant that subjects package there [sic] illegal narcotics in ways to be easily destroyed. It has also been the experience of this affiant that subjects often possess weapons to protect there [sic] illegal narcotics. To save the illegal narcotics from being destroyed and for the safety of the officers involved the affiant would ask for a No-Knock Provision to be added to the search warrant. Based on investigation and background information from the affiant, a search warrant is requested for the above address.

At the hearing on the motion to suppress, the agent acknowledged that this was “like a boilerplate,” but that another part of the affidavit included information regarding a firearm. This portion of the affidavit stated that five months earlier, on March 17, 2010, the agent obtained information from a sheriffs deputy who had spoken to a school system social worker who had visited the residence to check on the welfare of the children. The social worker told the deputy that she observed a black male with dreadlocks, whom she believed to be McLeod, with a gun in his jacket. The narcotics agent acknowledged that during surveillance of the residence between March and August, he did not discover or observe any firearms. His investigation did not reveal any weapons permits issued to the occupants of the house. He also acknowledged that he had not met the social worker, although he spoke with her on the telephone, and he stated that she was “not reliable to me.”

The no-knock warrant was executed on August 25, 2010, and marijuana was found on the premises. The return on the warrant does not show that any firearm was discovered. Appellees were charged with misdemeanor possession of less than one ounce of marijuana. The trial court granted appellees’ motion to suppress, finding that the presence of illegal drugs alone was insufficient to support a no-knock provision, that the information regarding a firearm was stale, and that no exigent circumstances justified a no-knock search. From this order, the State appeals. See OCGA § 5-7-1 (a) (4).

On appeal, the trial court’s findings as to disputed facts will be upheld unless clearly erroneous. However, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citations and punctuation omitted.) State v. Woods, 280 Ga. 758 (632 SE2d 654) (2006).

Generally, police must make a good faith attempt to verbally announce their authority and purpose before entering a building to execute a search warrant. However, a warrant can authorize a “no-knock” entry where police seeking the warrant demonstrate a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.

(Citations, punctuation and footnotes omitted.) Jackson v. State, 280 Ga. App. 716, 717-718 (1) (634 SE2d 846) (2006).

But a no-knock provision is permissible only when based on a neutral evaluation of each case’s particular facts and circumstances, not on blanket provisions based on generalized experience. Id. at 718 (1). The fact that the warrant is issued in a felony drug investigation, standing alone, is insufficient to support a no-knock provision. Id. And an affidavit based on the general ease of destruction of drug evidence and an officer’s prior experience is insufficient to support a no-knock provision. State v. Williams, 275 Ga. App. 612, 614-615 (621 SE2d 581) (2005). An invalid no-knock provision will render the execution of the warrant illegal and support the trial court’s grant of a motion to suppress. Id. at 614.

The staleness of specific evidence supplied is a factor to be considered by the trial court; the exact date is not the focus of the inquiry, but rather whether factual statements in the affidavit are sufficient to create a reasonable belief that the information offered in the affidavit will be present at the time the warrant is executed. Crow v. State, 267 Ga. App. 188, 189-190 (1) (598 SE2d 824) (2004) (three-month-old information regarding “continual, large-scale [marijuana farming] operation” not stale in view of size of operation and corroboration by discovery, within four days of warrant, of several marijuana plants growing in recently harvested field).

Here, the affidavit supported the request for a no-knock warrant with “boilerplate” language based on the agent’s general experience that drug evidence was likely to be destroyed and that drug suspects often possess weapons. While the affidavit stated elsewhere that a firearm was observed by a school social worker at the residence, that information was received over five months earlier. In addition, the agent acknowledged that he had the residence under surveillance from March until August 2010, but no firearm was observed during that time. He also acknowledged that his investigation and surveillance uncovered no evidence that any occupant of the residence possessed a firearm. The agent did not know the social worker and expressly stated, “She’s not reliable to me.” And the recent discovery of marijuana residue in a trash bin did not corroborate or reinforce the tip regarding the presence of a firearm.

Under these circumstances, we agree with the trial court that a single report of the presence of a firearm over five months before the warrant issued, uncorroborated despite continued surveillance and investigation during that time, was stale. Compare Amica v. State, 307 Ga. App. 276, 278 (1) (a) (704 SE2d 831) (2010), in which an accomplice to an armed robbery and burglary described in detail the appellant’s clothing, boots, pistol, and proceeds used or obtained in a robbery and the burglary of a business. The accomplice also disclosed that the appellant had been following the business owner in order to rob him again within the last four to six weeks. Although the robbery and burglary occurred nine months before the affidavit in support of the warrant, the totality of the circumstances, including an apparent ongoing scheme, as well as our due deference to the magistrate’s finding of probable cause, supported the trial court’s denial of the motion to suppress. Id. And in Hale v. State, 220 Ga. App. 667, 669-670 (2) (c) (469 SE2d 871) (1996), we found that the repeated use of a missing person’s credit card beginning eight months before the search warrant was issued constituted “an ongoing pattern, rather than an isolated incident” and was not stale information, particularly when the police used the pattern of card usage over several months to discover the identity of the person using the card.

Decided February 7, 2012.

Jamie K. Inagawa, Solicitor-General, Joseph B. Myers, Jr., Assistant Solicitor-General, for appellant.

Marcus G. Howell, Sr., Rebekah S. Betsill, Walker L. Chandler, for appellees.

The State cites Adams v. State, 201 Ga. App. 12, 14 (3) (410 SE2d 139) (1991), apparently arguing that exigent circumstances (such as the discovery of a dangerous dog on the premises in Adams), justified a no-knock entry. But no evidence was presented at the hearing of any exigent circumstances; in fact, the witnesses did not testify at all regarding the execution of the warrant. And in State v. Ballew, 290 Ga. App. 751, 754 (2) (660 SE2d 732) (2008), cited by the State, we expressly declined to address the issue of a flawed no-knock warrant because the entry was lawful on the alternative basis of the knock- and-announce provisions of OCGA § 17-5-27. The record in this case, however, does not show that the officers knocked and announced their presence.

For these reasons, the trial court’s grant of appellees’ motion to suppress was not clearly erroneous, and we therefore affirm the judgment of the trial court.

Judgment affirmed.

Mikell, P. J., and Dillard, J., concur.

       Barnett, who appeared pro se below, joined his co-defendants’ motion at the hearing.

       Appellee Chaves argues that no-knock entries risk being mistaken for home invasion robberies and may end in tragedy for innocent homeowners. See, e.g., Tesler v. State, 295 Ga. App. 569 (672 SE2d 522) (2009) (physical precedent only). We note only that the presence of children in the home, a fact known to the police, renders an unsupported no-knock entry even less advisable.