text:
    A10A1551.
    THOMAS v. THE STATE.
    (702 SE2d 788)
   BARNES, Presiding Judge.

Johnny L. Thomas appeals his convictions for sale of cocaine, possession of cocaine, and misdemeanor obstruction of a police officer. He contends that the trial court erred in denying his motion for directed verdict of acquittal because the evidence was insufficient to support his convictions. Following our review, we affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and [Thomas] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

Eady v. State, 256 Ga. App. 696 (569 SE2d 603) (2002).

So viewed, the evidence shows that the Valdosta Police Department staged a “planned buy-bust operation” utilizing two confidential informants (hereinafter “CIs”). The CIs met with police at the station and after being searched, were wired with audio and video equipment. They drove to a “high crime and . . . high drug area” and approached Thomas and asked him if he had any crack cocaine. Thomas told one of the persons to exit the car for the buy, and after doing so the Cl paid Thomas $20 for the cocaine. Police were monitoring the buy from approximately one block away, and once the sale was completed and the agents were leaving the scene, they went to the location to arrest Thomas. Thomas attempted to run away and was observed tossing aside a plastic bag. Police apprehended Thomas, recovered the bag, and the contents field tested positive for cocaine. Police also recovered the money used for the purchase in Thomas’ possession.

After the arrest, the CIs came to the police station where they gave the cocaine from the drug purchase to the detective in charge of the operation. The detective conducted a field test of the suspected cocaine, and it also tested positive. Thomas was charged with sale of cocaine, possession of cocaine, and misdemeanor obstruction of a police officer. Following a jury trial, he was found guilty on all counts. He now appeals.

1. Thomas contends that the trial court erred in denying his motion for a directed verdict of acquittal challenging the chain of custody. Thomas argues that the chain of custody was interrupted between the evidence custodian at the police department and the GBI crime lab, which then delivered it to a private testing facility, because there was no testimony from the recipient at the crime lab or evidence log showing that the cocaine tested at the private facility was the same cocaine obtained from Thomas. We do not agree.

When there is an issue as to the chain of custody of fungible evidence, the reviewing court must determine whether the State established with reasonable certainty that the evidence examined is the same as that seized and there has been no tampering or substitution. Phillips v. Williams, 276 Ga. 691 (583 SE2d 4) (2003); Dean v. State, 211 Ga. App. 28, 30 (3) (438 SE2d 380) (1993).

Here, the record reveals that police put the cocaine in separate bags marked by a case number and separate evidence numbers. The evidence custodian testified that she removed the bags from a secure evidence bin, logged them into evidence, and personally delivered them to the GBI crime lab. She testified that the evidence bags were in the same or substantially the same condition as when she delivered them to the GBI lab. The chemist from the private facility which tested the cocaine testified that when the evidence is received at the laboratory, it is logged in and given a work order number that “follow[s] the evidence throughout the entire process.” She testified that State’s Exhibits 2 and 3 were the items that she received and that “they appear[ed] to be in the same or substantially the same condition” as when they were last in her possession.

Contrary to Thomas’ argument, the State’s evidence showed with reasonable certainty that the evidence examined was the same as the evidence seized. There was no evidence of substitution or tampering. Where the testimony shows that the police placed the substance in an identifiable container and that the crime lab technician who tested the substance received it in the same container with no proof of tampering or substitution, the State has met its burden of showing with reasonable certainty that the substance tested was the same as that seized. Maldonado v. State, 268 Ga. App. 691, 694 (1) (603 SE2d 58) (2004).

Decided October 29, 2010.

Meredith G. Brasher, for appellant.

J. David Miller, District Attorney, Justo C. Cabral III, Assistant District Attorney, for appellee.

2. This evidence, along with evidence that Thomas attempted to flee from police and tossed a plastic bag containing cocaine was sufficient to sustain his convictions for the sale of cocaine, possession of cocaine, and obstruction of a police officer under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Senior Appellate Judge G. Alan Blackburn and Senior Appellate Judge Marion T. Pope, Jr., concur.

       OCGA § 16-10-24 (a) provides in pertinent part, “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” See Sharp v. State, 275 Ga. App. 487, 488-489 (1) (621 SE2d 508) (2005).


source: Caselaw Access Project

author: BLACKBURN, Senior Appellate Judge.

license: Public Domain

text:
    A10A2029.
    ELLIS v. INGLE et al.
    (703 SE2d 104)
   BLACKBURN, Senior Appellate Judge.

Seeking to recover the costs required to clean up a pre-existing landfill on a tract of land, the buyer of the tract sued the seller on an indemnity agreement, in which the seller had indemnified the buyer for any pre-existing environmental problems on the tract. In turn, the seller filed a third-party complaint against the attorney who closed the real estate deal and her law firm, alleging that the closing attorney had failed to follow the closing instructions in completing the transaction. Specifically, the seller averred that prior to closing, the seller had agreed to accept a reduced price in exchange for the invalidation of the indemnity agreement, but that the closing attorney had wrongfully delivered the indemnity agreement to the buyer even though the buyer had paid the seller only the reduced price and even though the closing attorney had expressly agreed to act otherwise. Because some evidence supported the seller’s allegations, the trial court erred in granting summary judgment to the closing attorney and her law firm on the third-party complaint. Accordingly, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp.

.So viewed, the evidence shows that Michael Ellis (the “seller”) agreed to sell a large tract of land to Southern Timber Company (the “buyer”) for $700,000, resulting in the parties executing a real estate contract to this effect. Because the buyer later heard that there might be an illegal landfill on a portion of the site, the buyer then required that the seller indemnify the buyer for any environmental problems on the land. The closing attorney (Karen Ingle) and her law firm (Minor, Bell & Neal, EC.) were to be similarly indemnified by the seller. Because the seller anticipated being out of town for the closing, the seller executed all the closing documents prior to closing. Working through his own attorney, the seller several days before the closing delivered to the closing attorney (who represented neither party but only the lender) the signed indemnity agreements, settlement statement, warranty deed, and related documents.

Shortly after the seller’s executed documents were delivered to the closing attorney but before closing, the parties renegotiated the deal. The seller agreed to accept $50,000 less on the purchase price, in exchange for which the buyer agreed to forego the indemnity and to accept the property “as is.” The indemnity in favor of the closing attorney and her law firm was also to be invalidated. The buyer called the closing attorney and informed her of the new agreement, which led the closing attorney to contact the seller’s counsel via e-mail and request that the seller execute a new settlement statement prepared by the closing attorney. The seller’s counsel agreed to get his client to execute the new settlement statement and also indicated that the parties needed to sign an amendment to the original real estate contract, which amendment the seller’s counsel had prepared and attached to his return e-mail. In the text of the e-mail, the seller’s attorney reiterated the terms of the amended agreement, specifically referring to the reduced $650,000 selling price and to the term that the buyer was taking the property “as is.” He indicated that his client was looking over the revised settlement statement and the amended real estate contract.

The closing attorney responded in a return e-mail, asking whether the buyer would be signing the amended agreement prior to closing, “or do I need to have him sign it here?” The seller’s counsel responded affirmatively, stating that he would have his own client sign the amendment in his office (and would then have the original hand-delivered to the closing attorney) and requesting that the closing attorney have the buyer sign the amendment at closing. The closing attorney agreed to the request by return e-mail, stating “No problem at all for me.”

The seller executed the amendment, which reduced the selling price, stated the property was being sold “as is,” and expressly superseded any indemnity agreements. The seller also executed a new settlement statement reflecting the new $650,000 selling price. After announcing to the closing attorney via e-mail that such had occurred and that the documents would soon be delivered to the closing attorney, the seller’s attorney then had these executed documents hand-delivered to the closing attorney, referring to these as the documents needed for the closing.

At the closing, at which neither the seller nor his attorney was present, the closing attorney closed the deal based on the amended $650,000 purchase price and had the buyer execute the amended settlement statement received from the seller’s attorney; nevertheless, the closing attorney did not require the buyer to execute the amendment received from the seller’s attorney in the same package. Moreover, the closing attorney delivered the environmental indemnity agreements to herself and to the buyer (which had been executed by the seller in connection with the first version of the deal) in contravention of the terms of the amended deal. Once the seller learned that the amended real estate contract had not been signed at closing, the seller demanded that the buyer sign the document, but the buyer refused.

When faced with the costs required to clean up the landfill, the buyer sued the seller on the indemnity agreement (also asserting fraud causes of action) for those costs. The seller filed a third-party complaint against the closing attorney and her law firm, alleging that the closing attorney had failed to follow the closing instructions on the amended deal by closing the deal at the amended price but nevertheless delivering the indemnity agreements and failing to obtain the buyer’s signature on the new real estate contract. The closing attorney and her firm moved for summary judgment, arguing that they did not represent the seller and were not responsible to protect his interests. Without offering its reasons, the trial court granted summary judgment to the closing attorney and her firm. The seller appeals.

Undoubtedly, the closing attorney and her law firm did not represent the seller at the closing. However, some evidence, including several e-mails between the closing attorney and the seller’s attorney, showed that the closing attorney understood that the deal had changed to reflect a lower selling price, in exchange for which the buyer was to execute the new real estate contract, which superseded the indemnity agreements executed in connection with the original deal. Some evidence, including the same exchange of e-mails between the closing attorney and the seller’s attorney, further showed that the closing attorney expressly agreed to obtain the buyer’s signature on the new real estate contract (already executed by the seller) at the closing. Indeed, the closing attorney stated that doing so would not be a problem.

Setting aside whether the closing attorney received the closing documents from the seller in trust or in escrow (see OCGA § 44-5-42), and setting aside further that the closing attorney would not appear to have been authorized to close the transaction in contravention of the closing instructions, we hold that in any event it is clearly established that

one who undertakes to do an act or perform a service for another has the duty to exercise care, and is liable for injury resulting from his failure to do so, even though his undertaking is purely voluntary or even though it was completely gratuitous, and he was not under any obligation to do such act or perform such service, or there was no consideration for the promise or undertaking sufficient to support an action ex contractu based thereon. Where one undertakes an act which he has no duty to perform and another reasonably relies upon that undertaking, the act must generally be performed with ordinary or reasonable care.

(Citation omitted.) Stelts v. Epperson. See Osowski v. Smith. Compare Moore v. Harris (no evidence showed that attorney agreed to provide voluntary services).

Here, some evidence showed that the closing attorney and her law firm agreed to close the transaction in accordance with the closing instruction to obtain the buyer’s signature on the amended real estate contract, which precluded the delivering of the indemnity agreements. The seller, who was not present at closing and who had delivered these signed documents in reliance on the closing attorney’s following the closing instructions, may have reasonably relied on the closing attorney to act in accordance with the attorney s agreement to obtain the buyer’s signature on the amended real estate contract. At a minimum, some evidence showed that the closing attorney’s failure to perform this undertaking with reasonable care subjected her and her law firm to liability. Accordingly, the trial court erred in granting summary judgment to the closing attorney and her firm.

Decided October 29, 2010.

Edward Hine, Jr., for appellant.

Carlock, Copeland & Stair, Michele R. Jones, for appellees.

Judgment reversed.

Barnes, P. J., and Senior Appellate Judge Marion T. Pope, Jr., concur.

         Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459, 459 (1) (486 SE2d 684) (1997).

         Stelts v. Epperson, 201 Ga. App. 405, 407 (411 SE2d 281) (1991).

        Osowski v. Smith, 262 Ga. App. 538, 540 (1) (586 SE2d 71) (2003).

        Moore v. Harris, 188 Ga. App. 251, 253 (372 SE2d 654) (1988).


text:
    A11A0065.
    SCOTT v. THE STATE.
    (702 SE2d 790)
    Decided October 29, 2010.

      Sharon L. Hopkins, for appellant.

      Daniel J. Porter, District Attorney, James M. McDaniel, Assistant District Attorney, for appellee.
   BLACKBURN, Senior Appellate Judge.

Following a jury trial, Lee Dixon Scott appeals his conviction of rape, raising as his only enumeration of error the sufficiency of the evidence. The child victim, who was under ten years old, testified at trial that Scott (her father) placed his private inside her private when they were in the bathroom. It is well established that in rape cases, the victim’s testimony alone is sufficient to support a conviction. Johnson v. State. See Newton v. State. Scott’s argument that the victim’s testimony was not credible does not apply in the appellate context, as “[determining the credibility of witnesses is entirely within the province of the jury.” (Punctuation omitted.) McKinney v. State. The evidence sufficed to sustain the convictions.

Judgment affirmed.

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

       OCGA § 16-6-1 (a) (2).

        Johnson v. State, 280 Ga. App. 341, 342-343 (2) (634 SE2d 134) (2006).

        Newton v. State, 296 Ga. App. 332, 336 (1) (b) (674 SE2d 379) (2009).

        McKinney v. State, 269 Ga. App. 12, 16 (2) (602 SE2d 904) (2004).


author: Miller, Chief Judge.

text:
    A10A0975.
    CUVAS v. THE STATE.
    (703 SE2d 116)
   Miller, Chief Judge.

Rosa Myra Cuvas was convicted by a jury of armed robbery (OCGA § 16-8-41), and she was sentenced to twenty years to serve ten in prison. On appeal, she claims that she received ineffective assistance of trial counsel. She also contends that her sentence amounted to cruel and unusual punishment inasmuch as she was 13 years old at the time of the offense. Finding no error, we affirm.

Viewed in the light most favorable to the jury’s verdict (Drammeh v. State, 285 Ga. App. 545, 546 (1) (646 SE2d 742) (2007)), the evidence showed the following. The victim, who worked as a taxi cab driver, responded to Cuvas’s call for a pickup at the Willow Trail Apartments in Gwinnett County. A man got in the front seat of the taxi, and Cuvas and a second man got into the back seat.

After directing the taxi to a dimly lit residential area, the passengers ordered the victim to stop and demanded money. The man in the back seat put a gun to the victim’s head and the man in the front seat took out a knife. According to the victim, Cuvas got out of the vehicle, opened the driver’s side door, checked the victim’s pockets, and took a cell phone.

After disconnecting the taxi’s radio, and taking $20 to $30, cell phones, and the keys to the vehicle, the two men and Cuvas fled on foot. The victim reconnected the radio and called a fellow cabbie, Jose Javier, for help. After Javier arrived, another driver radioed that he had seen three people walking. Based on this information, Javier drove the victim to a location approximately a mile from the site of the robbery. The victim saw Cuvas and the two men get into a car driven by a fourth person. The victim and Javier followed the car to a residence and then called the police.

1. Cuvas claims that she received ineffective assistance of trial counsel. We are not persuaded.

In order to prevail on a claim of ineffective assistance of counsel, a convicted defendant must show that counsel performed deficiently and that the deficient performance prejudiced the defendant such that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different.

(Citation omitted.) Coleman v. State, 286 Ga. 291, 297 (6) (687 SE2d 427) (2009).

(a) Cuvas claims that her trial counsel rendered ineffective assistance by failing to obtain a DVD recording of Cuvas’s statement to the police. We disagree.

Defense counsel testified at the hearing on motion for new trial that he had filed a discovery demand in the case and the DVD recording of Cuvas’s statement was noted on the cover sheet of the State’s response, but he did not receive a copy of the DVD. He spoke with the prosecutor about the DVD, who represented that it would not be presented at trial. According to defense counsel, “that’s where it was left.” The DVD was not introduced at trial. Defense counsel did not view the DVD until shortly before the hearing on Cuvas’s motion for new trial. The DVD was played for the trial court at the hearing on motion for new trial.

Cuvas argues that her trial counsel did not adequately prepare for trial because he did not view the DVD beforehand. Although counsel was aware that the DVD would not be played for the jury, evidence of Cuvas’s statement was introduced through the testimony of the interviewing officer. Cuvas argues that by failing to review the DVD her counsel lost an opportunity to prepare a thorough, sifting, and meaningful cross-examination of the officer.

Trial counsel testified that he cross-examined the officer who took Cuvas’s statement based on notes from his discussions with Cuvas, his investigator, the officer’s report, and the officer’s direct testimony. He maintained that he cross-examined the officer thoroughly with the intent to show “mistruth in [the officer’s] statements . . . and ... I was able to do so.” Trial counsel also testified that if he had viewed the DVD before trial it would have been helpful, but he did not know if he would have asked additional questions on cross-examination. Assuming, but not deciding, that trial counsel’s failure to obtain and review the actual recording of Cuvas’s statement to police constituted deficient performance, Cuvas does not show she was prejudiced thereby. It follows that she failed to establish ineffective assistance of trial counsel. See Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004) (counsel not ineffective as defendant failed to show prejudice arising from counsel’s alleged deficient conduct).

(b) Cuvas contends her trial counsel was ineffective (i) in failing to file a pre-trial motion to suppress evidence of her statement to police based on a violation of Miranda v. Arizona, and (ii) in failing to pursue & Jackson-Denno hearing to challenge the voluntariness of her statement. We disagree.

“When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” (Citation and punctuation omitted.) Rivers v. State, 283 Ga. 1, 3 (b) (655 SE2d 594) (2008). The evidence showed that Cuvas spoke English, that the interviewing officer informed Cuvas of her Miranda rights, and that she acknowledged understanding those rights before giving her statement. Cuvas makes no showing that a motion to suppress her statement for violation of her Miranda rights would have been successful, and trial counsel was not ineffective for failure to pursue a motion on that ground. See Lupoe v. State, 284 Ga. 576, 580 (3) (f) (669 SE2d 133) (2008) (counsel’s failure to file a meritless motion was not ineffective assistance).

Nor does Cuvas show that her counsel was ineffective in failing to seek a Jackson-Denno hearing to suppress her statement. After detailing the numerous factors considered, the trial court found at the motion hearing that if a Jackson-Denno hearing had been held that Cuvas’s statements would have been found admissible notwithstanding that she was a minor. See Medlin v. State, 285 Ga. App. 709, 712 (1) (647 SE2d 392) (2007) (when determining whether to admit a minor defendant’s custodial statement, the trial court should consider the totality of the circumstances). Cuvas does not otherwise establish that her statement was not freely and voluntarily given. Accordingly, trial counsel’s failure to insist on a Jackson-Denno hearing did not amount to ineffective assistance. See Morris v. State, 278 Ga. 710, 712 (2) (606 SE2d 258) (2004) (counsel’s failure to seek a Jackson-Denno hearing not ineffective assistance because defendant failed to show that his statements were involuntary and should have been suppressed).

(c) Cuvas further argues that her trial counsel was ineffective because during the charge conference he failed to request a jury charge as to the voluntariness of her statement to police or the conditions precedent for consideration of her statement. We disagree.

During the charge conference, the trial court stated its impression that there was no issue as to voluntariness of Cuvas’s statement under Jackson v. Denno or as to whether she was informed of her constitutional rights, and trial counsel confirmed that he did not want a charge on those issues. The officer’s testimony indicating that Cuvas had been informed of her rights and made her statement freely and willingly was not controverted. It was not reasonably probable that counsel’s failure to request a charge on those issues changed the outcome of the trial. See, e.g., Gonzalez v. State, 283 Ga. App. 843, 848-849 (3) (a) (643 SE2d 8) (2007) (finding that, under the circumstances, there was no reasonable probability that but for counsel’s failure to request instruction as to defendant’s statement, the results of the trial would have differed).

(d) Lastly, Cuvas suggests that her trial counsel’s performance was so lacking that it eliminated the need to inquire into whether she was prejudiced thereby. We disagree.

Prejudice is presumed if a defendant is constructively denied counsel. See Strickland v. Washington, 466 U. S. 668, 692 (III) (B) (104 SC 2052, 80 LE2d 674) (1984). Such denial occurs if “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” United States v. Cronic, 466 U. S. 648, 659 (III) (104 SC 2039, 80 LE2d 657) (1984). See State v. Heath, 277 Ga. 337, 338-339 (588 SE2d 738) (2003). In order for the presumption of prejudice to arise, “[t]he attorney’s failure must be complete and must occur throughout the proceeding and not merely at specific points.” (Citation and punctuation omitted.) Turpin v. Curtis, 278 Ga. 698, 699 (1) (606 SE2d 244) (2004).

In this case, notwithstanding that trial counsel failed to review the DVD of Cuvas’s statement to police, he discussed the statement with Cuvas directly and through an investigator and he reviewed the officer’s report of her statement. Counsel came to the conclusion that there were no legitimate issues with regard to the admissibility of the statement. He developed a theory of the defense, cross-examined State’s witnesses, argued to the jury on behalf of his client, and she was acquitted of two of the three felony charges.

Considered in context, counsel’s failure to [review the DVD of her statement, to file a pre-trial motion to suppress her statement, to request a Jackson-Denno hearing, or to request charges with respect to the statement] is not a constructive denial of counsel, and [Cuvas] is not relieved of [her] burden of proving prejudice attributable to trial counsel’s error.

Machuca v. State, 279 Ga. App. 231, 237 (2) (a) (630 SE2d 828) (2006). Compare Cochran v. State, 262 Ga. 106, 107-108 (2) (414 SE2d 211) (1992) (listing numerous deficiencies described as total failure of trial preparation).

2. Consistent with the statutory punishment for armed robbery, Cuvas was sentenced to twenty years to serve ten in prison. See OCGA § 16-8-41 (b), (d). She contends that her sentence is cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.

A presumption arises when a defendant is sentenced within the statutory limits set by the legislature that such sentence does not violate the Eighth Amendment’s guarantee against cruel and unusual punishment. Such presumption remains until a defendant sets forth a factual predicate showing that such legislatively authorized punishment was so overly severe or excessive in proportion to the offense as to shock the conscience.

(Footnote omitted.) Pascarella v. State, 294 Ga. App. 414, 417 (2) (669 SE2d 216) (2008).

Cuvas was properly tried as an adult in superior court as she was alleged to have committed armed robbery with a firearm. Although she was only 13 years old at the time of the robbery, she had no inherent right to be treated as a juvenile. Bishop v. State, 265 Ga. 821, 823 (3) (462 SE2d 716) (1995). The legislature’s determination that the superior court has jurisdiction over minors 13 to 17 years of age who are alleged to have committed certain serious offenses is founded on a rational basis, including “the need for secure placement of certain violent juvenile offenders [and] the safety of students and citizens of Georgia.” Id. See OCGA § 15-11-28 (b) (2) (A).

Decided November 1, 2010.

Wayne L. Burnaine, for appellant.

Daniel J. Porter, District Attorney, Trade H. Cason, Assistant District Attorney, for appellee.

We have previously upheld a sentence of ten years confinement imposed on a fifteen-year-old defendant for conspiracy to commit armed robbery. Pascarella, supra, 294 Ga. App. at 417. In comparison, Cuvas, although only 13 years old, participated in the actual armed robbery. Having considered Cuvas’s arguments, we cannot conclude that her punishment was so severe or excessive in proportion to the offense as to shock the conscience. See Gresham v. State, 303 Ga. App. 682, 689 (4) (695 SE2d 73) (2010); McKenzie v. State, 302 Ga. App. 538, 541 (2) (691 SE2d 352) (2010).

Judgment affirmed.

Phipps, P. J., and Johnson, J., concur.

       She was found not guilty of two counts of possession of a firearm or knife during commission of a felony.

       There is no indication in the record that a transcript of the DVD was prepared before trial or that a transcript was reviewed by counsel.

       Inasmuch as the actual DVD was not included in the record and transcripts submitted on appeal, we rely on the hearing on motion for new trial transcript in which the contents of the DVD are transcribed.

       In his cross-examination of the officer, trial counsel showed that the officer wrote in his report of Cuvas’s interview that Cuvas would not identify who phoned for the. cab. This contrasted to the officer’s testimony that Cuvas admitted to contacting the taxi. The officer also testified on direct that Cuvas had indicated she “lured” the taxi to the apartment complex. On cross-examination, the officer admitted that he had generated the term “lured” on his own.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       Cuvas does not cite to any authority relevant to the issue other than Freeman v. Wilcox, 119 Ga. App. 325, 329 (4) (167 SE2d 163) (1969). The trial court found that Cuvas’s mother gave police permission to speak with her daughter, but Cuvas points to a lack of evidence that her mother was advised of Cuvas’s rights. Freeman has been disapproved by our Supreme Court to the extent it can be read to require an automatic exclusion of a minor’s incriminating statement if the parent is not separately advised of the minor’s rights. See Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976).

       The pattern charge on conditions precedent to consideration of statement, referenced by the trial court, addresses the requirements, among other things, that the statement be voluntary and that the defendant knowingly gave up his or her constitutional rights. See Suggested Pattern Jury Instructions, Yol. II: Criminal § 1.32.50 (2007).

       To the extent Cuvas’s argument can be characterized as a claim that the minimum sentencing requirement of OCGA § 16-8-41 is unconstitutional, the trial court did not discretely rule on the issue, and, if it had so ruled, a challenge to constitutionality of the statute is within the exclusive jurisdiction of our Supreme Court. See Colton v. State, 297 Ga. App. 795, 797-798 (2) (678 SE2d 521) (2009) (although challenge to the constitutionality of sentencing provisions of OCGA § 16-6-22.2 would be in exclusive jurisdiction of the Supreme Court, the constitutional issue had not been raised or ruled on by the trial court, and the sentence was affirmed as legally authorized).

       “The superior court shall have exclusive jurisdiction over the trial of any child 13 to 17 years of age who is alleged to have committed any of the following offenses: . . . (vii) Armed robbery if committed with a firearm.” OCGA § 15-11-28 (b) (2) (A).


text:
    A10A1130.
    MALLORY v. THE STATE.
    (703 SE2d 120)
   Miller, Chief Judge.

A jury convicted Quinton A. Mallory of single counts each of robbery (OCGA § 16-8-40 (a) (1)), false imprisonment (OCGA § 16-5-41), and battery (OCGA § 16-5-23.1). He appeals, arguing that the trial court erred (i) in failing to exclude testimony and physical evidence as to two latent fingerprints based on the State’s discovery violation; and (ii) in requiring him to specify the missing element of a business record exception to the admission of fingerprint records. Finding that Mallory made no showing of prejudice or bad faith on the part of the State, and otherwise discerning no error, we affirm.

Viewed in the light most favorable to the jury’s verdict (Drammeh v. State, 285 Ga. App. 545, 546 (1) (646 SE2d 742) (2007)), the evidence shows that on August 10, 2006, Carolyn Al-Jaber was working at Kings Beauty Supply, Inc. (“Kings”) when Mallory entered the store. He walked down the middle aisle, and looked to his right and left. As Mallory was the only customer in the store at the time, Al-Jaber felt uneasy and asked Mallory if he needed assistance. After Mallory examined two conditioners and a gold Chanel purse, intended for his girlfriend, he returned the items to Al-Jaber. As Al-Jaber put the second conditioner back on the shelf, Mallory suddenly came around the counter and struck Al-Jaber in the head with his fist and knocked her to the ground, stating, “You know what the_I want.” Mallory struck Al-Jaber again in the head and forearm, forced her to put her hands behind her back, ordered her to the register, and demanded the cash register key. He then forced her to the floor in a corner and told her not to move or touch anything. With his hand over his pocket, Mallory repeatedly stated, “don’t make [me] get crazy.” Al-Jaber saw a bulge in Mallory’s pocket and was fearful he had a gun and would shoot her.

When Al-Jaber told Mallory that the drawer was unlocked, Mallory attempted to open the cash register several times, but was unsuccessful. Fearing for her life, Al-Jaber offered to open the drawer for him, and despite Mallory’s orders to stay down on the floor, Al-Jaber got up and opened the cash register. Again ordered to the floor, Al-Jaber complied. Mallory then emptied out the register’s contents, and left with approximately $800. Mallory’s fingerprints were found on the cash register drawer and a gold Chanel purse.

Following the incident, Al-Jaber could not make a positive identification of Mallory as the robber.

1. Mallory contends that the trial court erred in admitting testimony and evidence about two latent fingerprints because the State failed to timely produce two supplemental reports prior to trial. We disagree.

Absent an abuse of discretion, we will not reverse a trial court’s decision to fashion a remedy for violations of the reciprocal discovery statute. Murray v. State, 293 Ga. App. 516, 519 (2) (667 SE2d 382) (2008).

Before trial, Mallory elected to proceed under the discovery provisions of OCGA § 17-16-1 et seq. by “opting in” to discovery and serving written notice on the State. OCGA § 17-16-2 (a).

OCGA § 17-16-4 (a) (4) provides:

The prosecuting attorney shall, no later than ten days prior to trial, or as otherwise ordered by the court, permit the defendant at a time agreed to by the parties or ordered by the court to inspect and copy or photograph a report of any . . . scientific tests or experiments, including a summary of the basis for the expert opinion rendered in the report, or copies thereof, if the state intends to introduce in evidence in its case-in-chief or in rebuttal the results of the . . . scientific test or experiment. . . .

If the State fails to comply with its discovery obligations, the court

may order the State to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and had faith, prohibit the state from introducing the evidence not disclosed ... or may enter such other order as it deems just under the circumstances.

(Emphasis supplied.) OCGA § 17-16-6. See also Boykin v. State, 264 Ga. App. 836, 840 (3) (592 SE2d 426) (2003) (defendant must show that the state acted in bad faith and that he was prejudiced before the trial court will impose the harsh sanction of excluding evidence).

The record shows that, in pre-trial discovery, the State served Mallory with a fingerprint identification notice which identified Mallory’s fingerprint from a partial latent print taken from the cash register drawer at Kings. In a more detailed report dated August 22, 2007 (“second report”), Investigator Allen compared latent fingerprints taken from the scene with Mallory’s fingerprints, and confirmed a match of Mallory’s second finger but could not conclude a match from a rolled print of Mallory’s right ring finger. The State provided the second report to Mallory on August 27, 2007, the first day of trial. In a supplemental report dated August 27, 2007, Investigator Allen confirmed a match of Mallory’s right ring finger when he enlarged the print on a chart (“third report”). The State provided this report to Mallory on August 28, 2007. Mallory objected to any testimony concerning the second and third reports based on their untimely production.

While trial counsel acknowledged that he had an opportunity to have an expert review the latent prints and Mallory’s print cards, the trial court allowed him a further opportunity to speak with Investigator Allen before trial, and counsel indicated that he “briefly spoke with [the investigator] a little bit before in [the prosecutor’s] office.” Trial counsel further stated that he “would like maybe another ten minutes maybe to talk with him, ... a little bit of time so that I can at least get a better feel of what he does have.” The trial court granted counsel the additional time he requested to talk with the investigator, and following that, counsel did not request a continuance. Finding that the information in the two reports was not new information and was equally available to defense counsel, the trial court ruled that Investigator Allen could testify as to his findings in both reports.

Based on this record, we fail to conclude that the State acted in bad faith by not providing the second and third reports to Mallory prior to trial. The second report concerning Mallory’s partial latent print from the cash register drawer was provided to Mallory in discovery from the State. The third report revealed newly discovered evidence which the State did not discover until Investigator Allen enlarged Mallory’s fingerprint on charts in his preparation for trial. As soon as the State received the third report from its investigator, it provided the same to Mallory. OCGA § 17-16-4 (c) (“if . . . during trial a party discovers additional evidence or material previously requested or ordered which is subject to discovery or inspection under this article, such party shall promptly notify the other party of the existence of the additional evidence or material and make [same] available as provided in this article”); Herieia v. State, 297 Ga. App. 872, 873 (1) (678 SE2d 548) (2009) (state complied with newly discovered evidence statute where state did not learn that defendant held knife to victim until its final interview with victim and disclosed such fact to defense counsel four days later). Further, there is no evidence that the State knowingly withheld this evidence from Mallory.

Given the foregoing, Mallory’s claim of bad faith fails. See Herieia, supra, 297 Ga. App. at 873-874 (1) (trial court’s exclusion of evidence was upheld where defendant failed to identify any act of bad faith on part of the state or show that state knowingly withheld evidence); Boykin, supra, 264 Ga. App. at 840 (3) (defendant did not present any evidence showing that the state acted in bad faith in failing to provide his attorney with letters earlier). To the extent Mallory argues that trial counsel was unaware of the existence of the two latent prints, this contention is not supported by the record, as Mallory failed to call trial counsel as a witness during the motion for new trial hearing.

Even were it otherwise, Mallory has not shown prejudice. Although Mallory’s counsel could have obtained an independent evaluation of the latent prints, which were equally available to him, he chose not to do so. Prior to trial, Mallory’s counsel acknowledged that previous counsel had secured funds to obtain an independent fingerprint expert after Mallory filed a pro se motion for a scientific evaluation of his fingerprints. When the trial court inquired whether he would proceed with the pro se motion, counsel stated that he did not think “[the independent evaluation] was necessary” and would just “rely on cross-examination of the method used by the expert [the State] ha[s].” As such, Mallory’s argument that he was prejudiced by the State’s late production of the second and third reports because he did not have an opportunity to investigate its findings, discuss same with the investigator, or obtain its own expert for trial is unavailing.

Moreover, Mallory cannot show prejudice as he did not request a continuance, which he concedes. Murray, supra, 293 Ga. App. at 520 (2) (“a defendant is obliged to request a continuance to cure any prejudice which may have resulted from the state’s failure to comply with the requirements of the reciprocal discovery act”) (punctuation and footnote omitted). Thus, the trial court did not err in admitting testimony and evidence relating to the second and third reports. Id. at 519 (2).

Decided November 1, 2010.

Lance D. Dutton, for appellant.

T. Joseph Campbell, District Attorney, Suzanne Z. Brookshire, Assistant District Attorney, for appellee.

2. Mallory contends that the trial court erred in requiring his « counsel to explain the missing steps of a business record exception i after he objected to the State’s introduction in evidence of his i fingerprint cards. We find no reversible error.

After the State sought to introduce two of Mallory’s fingerprint t cards in evidence as business records, Mallory’s counsel objected on i the grounds that an “adequate foundation is missing.” The trial 1 court asked him to specify the missing item and counsel responded I that the State did not establish the steps required for a business ¡ record exception. When asked to identify the missing element, , counsel stated, “if I tell her, then she fixes it[,]” indicating he “[did I not] know if [he] had to state the specific step of the business record l exception.” After the trial court instructed him to do so, trial counsel 1 stated that the State did not specify that the exhibits “were created I at or near the time they are alleged to have been created.” See ¡ OCGA § 24-3-14 (b). We cannot say that the trial court abused its ¡ discretion in requiring Mallory’s counsel to specify the missing ; element. See Cantu v. State, 304 Ga. App. 655 (1) (697 SE2d 310) (2010) (evidentiary ruling reviewed for a clear abuse of discretion).

Even assuming the trial court erred in this regard, the fingerprint cards were not the sole evidence linking Mallory to the crimes. Investigator Allen testified that he made a visual comparison of Mallory’s fingerprints and concluded that two latent prints taken from the scene belonged to Mallory. He also testified that the results : of a computer analysis identified a known print of Mallory’s as the closest of ten matches to the latent print. Accordingly, any error was harmless.

Judgment affirmed.

Phipps, P. J., and Johnson, J., concur.

       In the second report, Investigator Allen indicates that he utilized a “standard minimum point count of twelve points to declare the match a positive identification.” The investigator only identified eleven matching points as to Mallory’s right ring finger.


author: Mikell, Judge.

text:
    A10A1492.
    RITTER v. THE STATE.
    (703 SE2d 8)
   Mikell, Judge.

A Dawson County jury convicted William Ritter of driving under the influence (less safe), driving under the influence (per se), and failure to maintain lane. On appeal from the denial of his motion for new trial, Ritter argues that his convictions should be reversed for two reasons: (1) his request for an independent blood test was not reasonably accommodated; and (2) the trial court erroneously admitted the inspection certificates for the Intoxilyzer 5000. Finding no error, we affirm.

The record shows that at approximately 8:00 p.m. on March 10, 2009, Investigator James Bruhl of the Dawson County Sheriffs Office stopped Ritter after he drove across the center line twice. Bruhl testified that he approached Ritter’s vehicle and could smell alcohol coming from inside the vehicle when Ritter rolled down his window. Ritter submitted to sobriety field testing, including the horizontal gaze nystagmus test, during which he exhibited four of the six clues, and the alco-sensor test, which was positive for alcohol. Based on Ritter’s performance on the evaluations, his manner of driving and bloodshot eyes, and the odor of alcohol, Bruhl concluded that Ritter was under the influence to the extent that he was a less safe driver and arrested him. Bruhl also testified that he searched Ritter’s car and found an open 12-pack of beer. Bruhl read Ritter the implied consent notice for suspects over the age of 21, then asked Ritter to consent to a breath test. Ritter’s two breath test samples indicated blood alcohol levels of 0.151 and 0.150.

1. In his first enumerated error, Ritter argues that the trial court erred in concluding that his request for an independent blood test was reasonably accommodated by Bruhl. We disagree.

It is undisputed that Ritter requested an independent blood test. Bruhl testified that Ritter requested that the test be conducted at his doctor’s office in Alpharetta on the following morning; that Alpharetta was 30 to 45 minutes away; that he informed Ritter that the test would have to be done that night; that he offered to take Ritter to a closer facility in a neighboring county; and that he offered Ritter a phone book to find a facility. Bruhl further testified that Ritter insisted on going to his personal physician but never provided him with a name or number to contact him.

On cross-examination, Bruhl testified that he did not recall if Ritter asked to use the phone to call his personal physician; that Ritter did not make a phone call while in his custody; that Bruhl thought driving 45 minutes to Alpharetta was unreasonable; that at that time of night, most personal physicians’ offices were closed; that his department was shorthanded that night and he would have been gone for two to two-and-a-half hours had he driven to Alpharetta; and that once they arrived at the jail, Ritter could have used the phone to call his doctor.

Ritter filed a motion in limine to exclude the results of the breath test and raised the issue in his motion for new trial. The trial court denied both motions, concluding that Bruhl reasonably accommodated Ritter’s request for an independent blood test because he offered to take Ritter to another facility in an adjacent jurisdiction and that Bruhl’s refusal to drive Ritter to Alpharetta was reasonable.

Pursuant to OCGA § 40-6-392 (a), “evidence of the amount of alcohol or drug in a person’s blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person’s blood, urine, breath, or other bodily substance shall be admissible.” However, where such a test is performed, “[t]he person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer.”

Where an officer has failed to obtain an additional test requested by the accused person, it is incumbent on the trial court to determine whether that failure was justified. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks the independent test.

The factors to be considered by the trial court in making the determination, include, but are not limited to, the following:

(1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the accused’s requests; (3) availability of police time and other resources; (4) location of requested facilities, [e.g., whether the requested facility is in a different jurisdiction]; and (5) opportunity and ability of accused to make arrangements personally for the testing.

The determination is one “which depends largely on local circumstances, circumstances which the trial court can adjudge far better than we.”

“[T]here is no bright line defining at what point the distance to the requested facility renders the suspect’s request unreasonable or when the time factor becomes too onerous.” In the instant case, the trial court found that complying with Ritter’s request to drive to Alpharetta would have taken the officer out of his jurisdiction, as Alpharetta was 30 to 45 minutes away; that Bruhl’s police department was short of staff on the evening in question, and that there were facilities in neighboring jurisdictions, which Bruhl offered to Ritter as an alternative. Additionally, there was no evidence presented that Ritter had made arrangements to be tested at his personal physician’s office. As we are bound to view the evidence most favorably to uphold the trial court’s findings and judgment, and the evidence here supports the trial court’s ruling that Ritter’s request was reasonably accommodated, this enumerated error fails.

2. Next, Ritter argues that the quarterly inspection certificates and diagnostic test slips for the Intoxilyzer 5000 were erroneously admitted into evidence. Again, we find no error.

In Brown v. State, our Supreme Court held that “breath-testing device certificates are records made within the regular course of the business within the meaning of OCGA § 24-3-14 and may, upon the proper foundation being laid, be introduced into evidence under the business record exception to the hearsay rule.” OCGA § 40-6-392 (f) sets out the requirements for the admissibility of inspection certificates for breath-testing instruments, and provides specifically that “[w]hen properly prepared and executed, as prescribed in this 5 subsection, the certificate shall, notwithstanding any other provision i of law, be self-authenticating [and] shall be admissible in any court of law.” The certificate of inspection admitted into evidence complied with OCGA § 40-6-392 (f).

We also note that Bruhl testified that the diagnostic test, which i checks the function of the internal workings of the machine, showed that the machine was working properly on the night the test was administered. The slip from the diagnostics test was admitted into evidence. Bruhl also testified that he knew how to operate the machine, and his certification to conduct analyses on the machine was admitted as well.

Ritter cites Melendez-Diaz v. Massachusetts for the proposition that the documents were not admissible because they were prepared solely for the purpose of prosecution, but that case does not warrant a different result here. In Melendez-Diaz, the issue was whether certificates of analysis that showed the results of forensic analysis performed on controlled substances were testimonial in nature and thus inadmissible unless the analysts themselves testified at trial. The Court held that the admission of the certificates without the analysts’ testimony violated the Confrontation Clause. Melendez-Diaz explained that “[documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. But that is not the case if the regularly conducted business activity is the production of evidence for use at trial.” In the instant case, the certificates at issue do not fall within the class of documents prohibited by Melendez-Diaz because they are not generated for the prosecution of a particular defendant. Accordingly, the documents at issue were properly admitted.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

Decided September 16, 2010

Reconsideration denied November 3, 2010.

Banks & Stubbs, Rafe Banks III, for appellant.

Lee Darragh, District Attorney, Conley J. Greer, Assistant District Attorney, for appellee.

       OCGA § 40-6-392 (a) (3).

         (Citation omitted.) State v. Anderson, 258 Ga. App. 127, 128 (572 SE2d 758) (2002).

       (Punctuation and footnote omitted.) State v. Howard, 283 Ga. App. 234, 236 (641 SE2d 225) (2007). Accord Brown v. State, 253 Ga. App. 741, 743 (2) (560 SE2d 316) (2002), citing Joel v. State, 245 Ga. App. 750, 752 (538 SE2d 847) (2000).

       (Punctuation and footnote omitted.) State v. Metzager, 303 Ga. App. 17, 19 (692 SE2d 687) (2010).

       (Punctuation and footnote omitted.) Smith v. State, 277 Ga. App. 81, 84 (625 SE2d 497) (2005).

       See id.

        Hulsinger v. State, 221 Ga. App. 274, 276 (470 SE2d 809) (1996).

        See Lenhardt v. State, 271 Ga. App. 453, 455-456 (2) (610 SE2d 86) (2005) (evidence that location requested by accused was too far away and outside of officers’ patrol area, that officer’s department was short-staffed, and that there were other hospitals in the area supported trial court’s conclusion that request was reasonably accommodated); Hulsinger, supra (trial court did not abuse its discretion in finding that the officer made reasonable efforts to help the defendant obtain his independent test under the totality of the circumstances, particularly when the defendant did not produce evidence that the test could have been performed by reasonable means at the time of his request). Compare, Metzager, supra (grant of motion to suppress affirmed where officer unilaterally chose the location for the independent test); Cole v. State, 263 Ga. App. 222, 224 (587 SE2d 314) (2003) (results should have been suppressed where the facility where blood could have been tested was closed and the officer assumed others in the vicinity were also closed and offered the accused no alternative testing measures).

       268 Ga. 76 (485 SE2d 486) (1997).

       (Citations omitted.) Id. at 80-81. See also Caldwell v. State, 230 Ga. App. 46 (495 SE2d 308) (1997) (“by law certificates are self-authenticating and satisfy the requirement of proof that the intoximeter operated properly,” but proof of this fact may also be established by other evidence) (whole court) (citations omitted).

       The statute provides that
      [e]ach time an approved breath-testing instrument is inspected, the inspector shall prepare a certificate which shall be signed under oath by the inspector and which shall include the following language: “This breath-testing instrument (serial no. _) was thoroughly inspected, tested, and standardized by the undersigned on (date -) and all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order.”

       _ U. S _ (129 SC 2527, 174 LE2d 314) (2009).

       Id. at 2530-2531 (I).

       Id. at 2532 (II).

       (Citation omitted.) Id. at 2538 (III) (D).


author: Adams, Judge.

text:
    A10A1014.
    SMITH v. THE STATE.
    (703 SE2d 329)
   Adams, Judge.

Braja Smith was convicted by a jury of felony theft by shoplifting. He appeals following the trial court’s denial of his motion for new trial.

The evidence shows that on the afternoon of June 14, 2008, an unidentified man with dreadlocks, wearing a white t-shirt entered the Wal-Mart in Loganville. Shortly thereafter, Sean Harris entered the Wal-Mart and met up with the unidentified man in the electronics department. Harris retrieved a shopping cart, and the two men placed a computer into it. A Wal-Mart employee saw them remove the security device from the packaging and wheel the cart to another department, where they opened the computer box. The unidentified man then pushed the cart past the cash registers and left it at the front of the store. He exited the store hand-in-hand with a little girl and did not return.

A short time later, Harris re-entered the Wal-Mart with Smith and directed him to the shopping cart with the computer at the front of the store. Smith pushed the cart to the service desk, accompanied by Harris. Mertoni Collins, the customer service manager, was working at the service desk when Smith arrived with the computer and said that he wanted to return it. Collins told Smith that he needed a receipt and a sticker from the greeter in order to make a return. She told him that she could not get him a sticker, but she could walk him to the store entrance where a sticker could be obtained. Smith followed Collins to the entrance where she proceeded to walk out of the store. Smith was apprehended by Wal-Mart loss prevention officers as he attempted to follow her out.

1. Smith first asserts that the trial court improperly expressed its opinion of the case in front of the jury in violation of OCGA § 17-8-57. Under that statute, “[i]t is error for any judge in any criminal case, during its progress ... to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” A violation of this statute entitles the accused to a new trial. OCGA § 17-8-57.

In support of this argument, Smith points to the sequence of events after the State first announced it was resting its case. Collins was on the stand and started to step down when the trial court called her back. An off-the-record bench conference then ensued. Afterward, the trial court instructed Collins to step down and asked for the first defense witness. Smith’s attorney interrupted, however, and asked to re-cross-examine Collins. When asked the location of the Wal-Mart, Collins stated that she had heard that the store straddled the Walton/Gwinnett County lines, but she did not know if it was true, nor did she know which part of the store was in a particular county. The trial court then told the prosecution, “You need to call another witness there. ...”

The prosecutor replied, “Okay,” and called Officer Kenneth Welchel from the Loganville Police Department. As the prosecutor began to question Welchel about his knowledge of Smith’s arrest, the trial court interrupted to say, “Counsel, I really only want one issue. Does he have knowledge?” In response to the prosecutor’s questions, the officer stated that he was familiar with the Loganville Wal-Mart, and it was in Walton County. The trial court then questioned him as follows:

Court: Does the county line go down the middle of the store?
Witness: It’s like right on the edge of [the store].
Court: But the whole store itself, is it physically in Walton County?
Witness: They say — consider it as being in Walton County.
Court: Who is they?
Witness: That’s what I’ve been told.
Court: In your knowledge, it’s all in Walton County, the store itself?
Witness: Yes sir.

The trial court asked no other questions and after ascertaining that neither counsel had further questions, instructed the witness to step down.

Smith argues that the jury could have inferred from this sequence of events that the trial court and the prosecution were aligned in proving venue because the State, which had previously rested its case, called Welchel only when directed by the trial court. He also asserts that the trial judge exacerbated the issue when it limited the prosecution’s examination of the officer to questions about venue and then took over the questioning himself. When the judge finished his questions, the prosecution rested, and Smith argues that this gave the impression that both the trial court and the State were satisfied that venue had been proven.

The Supreme Court of Georgia recently addressed the application of OCGA § 17-8-57 in two cases where a trial court intervened on the issue of venue. In State v. Gardner, 286 Ga. 633 (690 SE2d 164) (2010), after the State finished examining its first witness, the trial court directed the State to “Prove venue. Did you prove venue?” When the prosecutor replied that he had not proven venue “as of yet,” the trial court stated, “Why don’t we go ahead and do that before we forget it?” Id. This Court found the trial judge violated OCGA § 17-8-57, but the Supreme Court reversed, explaining:

Although we strongly discourage the giving of direction or the use of language that could create the appearance of alignment between the trial court and either the prosecution or defense, the trial court did not “express or intimate (its) opinion as to what has or has not been proved,” OCGA § 17-8-57, because its directive to “(p)rove venue” was immediately followed by a question as to whether venue had been proven.

Id. at 635.

But in State v. Anderson, 287 Ga. 159 (695 SE2d 26) (2010), the Supreme Court upheld this Court’s determination that a violation of OCGA § 17-8-57 had occurred. In Anderson, the State completed examining a witness, and the trial court asked whether “we establish[ed] venue with this one?” The judge then elicited testimony stating that the store at issue was in the proper county. The judge went on to explain, “I know we had some confusion because she had worked at one store and she’s now working in another one. 1 just wanted to make sure.” (Emphasis supplied.) Id. at 160 (1). The Supreme Court found that the trial judge had stepped over the line, stating that

the trial court’s comments went beyond those in Gardner, ultimately resulting in an expression of opinion. Although a trial judge has the discretion to propound questions to a witness in order to clarify testimony, the comment “I just wanted to make sure” following the trial court’s questioning of the witness constituted an expression of opinion that venue had in fact been proven.

Id. at 160-161 (1). See also Patel v. State, 282 Ga. 412, 413 (2) (651 SE2d 55) (2007) (court’s comment that venue was proper or “we wouldn’t be here right now” during defense counsel’s opening statement violated statute).

We find that this case is more akin to Gardner. Although the trial judge told the State that it needed another witness after venue was put into question, the only possible inference was that venue had not been proven. And it was within the trial court’s discretion to limit the scope of Welchel’s testimony to the issue of venue, as the State had already rested its case. The trial court also had discretion to propound its own questions to the officer. See Dickens v. State, 280 Ga. 320, 324 (3) (627 SE2d 587) (2006) (“trial judge may propound questions to a witness to develop the truth of the case, to clarify testimony ... in order to enforce its duty to ensure a fair trial to both sides”). He did not comment upon Welchel’s testimony, but rather offered both parties an opportunity to follow up his questions with their own. The trial court never stated that the alleged crime took place in Walton County and never expressed his opinion or commented on what had been proven. See Sims v. State, 296 Ga. App. 368, 370 (2) (674 SE2d 392) (2009), disapproved on other grounds, Gardner, 286 Ga. at 634. Thus, we conclude that no violation of OCGA § 17-8-57 occurred.

2. Smith next argues that the trial court abused its discretion in refusing to re-open the evidence after he requested to testify, which violated his constitutional right to testify in his own defense, citing United States v. Teague, 953 F2d 1525, 1531 (11th Cir. 1992). He argues that presenting his own testimony was the only possible method for rebutting the State’s case.

“It is always within the sole discretion of the trial court to permit either the [S]tate or the defense in criminal cases to reopen the case after the close of the evidence.” (Punctuation and footnote omitted.) State v. Gravitt, 289 Ga. App. 868, 870 (1) (658 SE2d 424) (2008). And “[a] trial court’s ruling in this regard will not be reversed in the absence of an abuse of discretion. Whether there has been a reversible abuse of discretion requires a consideration of the totality of the circumstances.” (Footnote omitted.) Burnette v. State, 291 Ga. App. 504, 511 (3) (662 SE2d 272) (2008). Nevertheless,

[a] criminal defendant has a constitutional right to testify in his or her defense, that right is personal to the defendant, and the decision whether to testify is made by the defendant after consultation with counsel. Mobley v. State, 264 Ga. 854 (2) (452 SE2d 500) (1995), citing Rock v. Arkansas, 483 U. S. 44 (107 SC 2704, 97 LE2d 37) (1987), and United States v. Teague, 953 F2d 1525 (11th Cir. 1992).

State v. Nejad, 286 Ga. 695, 696 (1), n. 2 (690 SE2d 846) (2010).

After Officer Welchel testified, the State rested its case. Smith’s counsel chose not to put up any witnesses, and the trial court announced that the evidence was closed. The trial court subsequently allowed the State to excuse its witnesses, noting again that the evidence had been closed. Each side then gave a closing argument, the trial court gave the jury charge and the jury retired for deliberations. Immediately afterward, Smith’s trial attorney indicated that Smith wanted to address the court “to express his dissatisfaction with his counsel.” Smith told the trial court that he did not know beforehand how his counsel planned to challenge the prosecution, but he felt there were “a lot of questions” that had not been answered. He informed the trial court that his counsel had advised him not to take the stand, but he believed “it would be in my best interest to take the stand and let the jury, you know, hear what I have to say. . . .”

The trial court invited Smith to explain what he would say. Smith started to explain his actions the day of the incident, but his counsel interrupted because she believed that he was incriminating himself for any potential re-trial. The trial court rejected her intervention, on the ground that Smith had “waived the right to an attorney/counsel privilege” when he asserted his trial counsel was incompetent. Smith told the court that he had been in a car with Sean Harris that day, but he was asleep when they arrived at the Wal-Mart. He wanted to tell the jury that he had no knowledge of any kind of crime when he later entered the store with Harris. Smith said he grabbed the cart and got in line at the service desk because that is what Harris told him to do. After ascertaining that this was all the evidence Smith wanted to present to the jury, the judge directed him to have a seat, and court was recessed. No further action was taken on Smith’s request. Neither Smith nor his trial counsel ever explicitly asked that Smith be allowed to testify.

At the hearing on the motion for new trial, Smith’s trial attorney said she informed Smith that he had a right to testify, but she advised against it because he had a number of felony convictions and she thought that could affect his credibility. She said that they “had several conversations about it. I know it was something that we went back and forth on. But in the end he agreed with me.” Smith also testified that he had spoken with his attorney on numerous occasions about whether he would testify at trial. She informed him that he had the right to testify, but she advised him not to because if he did, he would “suffer the consequences.” He listened to his lawyer’s advice and chose not to testify.

It is apparent that Smith reconsidered that decision after listening to closing arguments, and the question before us is “whether a defendant, who waived [his] right to testify during the presentation of the evidence, can reassert [his] right if [he] disagrees with [his] counsel’s presentation of the closing arguments.” United States v. Cummings, 2009 WL 2058845 at *3 (E.D. Wash. 2009). Although the United States Supreme Court established in Rock v. Arkansas that “the right to testify on one’s own behalf in defense to a criminal charge is a fundamental constitutional right,” 483 U. S. at 53, n. 10, the Court also stated that a defendant’s “right to present relevant testimony is not without limitation[ and] ‘may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.’ ” Id. at 55 (quoting Chambers v. Mississippi, 410 U. S. 284, 295 (93 SC 1038, 35 LE2d 297) (1973)). Nevertheless, “restrictions of a defendant’s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve.” Rock, 483 U. S. at 55-56.

Smith’s request to address the trial court was couched as a complaint about his attorney and not as a request to testify. To the extent Smith’s complaint reflected his intent to invoke his right to testify, however, we find that he asserted this right too late, regardless of his dissatisfaction with his counsel’s performance. To permit Smith to reopen the evidence after closing arguments and after the State had released all of its witnesses would have detrimentally affected the fairness and legitimacy of the trial. A requirement that “a defendant . . . exercise [his] right to testify prior to the close of evidence is not ‘arbitrary or disproportionate to the purposes (it is) designed to serve.’ ” Cummings, 2009 WL 2058845 at *4, citing Rock, 483 U. S. at 57. See also Manning v. State, 259 Ga. App. 794, 797 (3) (578 SE2d 494) (2003) (no abuse of discretion in refusing to reopen evidence prior to closing argument to allow defendant to testify); United States v. Byrd, 403 F3d 1278, 1287-1288 (II) (11th Cir. 2005) (no abuse of discretion in denying defendant’s request to testify made before closing arguments, but after State’s witnesses had been released). Moreover,

[allowing a defendant to have two trials, one based on his lawyer’s strategy (where the defendant does not testify) and one based on his own strategy (where the defendant does testify), does not promote fairness, justice, or order, and preventing this type of situation from arising is clearly a “legitimate interest in the criminal trial process.”

(Citations and punctuation omitted.) United States v. Pino-Noriega, 189 F3d 1089, 1096 (9th Cir. 1999). See also United States v. Jones, 880 F2d 55, 60 (8th Cir. 1989). Accordingly, we find no abuse of discretion in this case.

3. Smith next asserts that his trial counsel was ineffective in failing to advise him to testify after the State rested.

In order to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, [Smith] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance.

(Citation and punctuation omitted.) Reid v. State, 286 Ga. 484, 485-486 (3) (690 SE2d 177) (2010). “Failure to satisfy either [part] of this two-part test is fatal to an ineffective assistance claim.” (Footnote omitted.) Thomas v. State, 291 Ga. App. 795, 804 (6) (662 SE2d 849) (2008). Moreover, “[a] trial court’s finding that a defendant has been afforded effective assistance of counsel will be affirmed on appeal unless clearly erroneous.” (Punctuation and footnote omitted.) Smallwood v. State, 296 Ga. App. 16, 21 (4) (673 SE2d 537) (2009).

It is well settled that counsel bears “the primary responsibility for advising the defendant of his right to testify and the strategic implications of this choice, as well as for informing the defendant that the decision whether to testify is his to make.” Thomas v. State, 282 Ga. 894, 896 (2) (b) (655 SE2d 599) (2008). Smith admits that his counsel discussed his right to testify and advised him of the potential consequences of taking the stand, and he admits that he made the decision not to testify. Smith asserts, however, that his trial attorney should have re-visited the issue at the close of the State’s evidence because he contends his attorney did not understand the State’s case until that point and his testimony was the only possible evidence for rebutting the State’s case as presented at trial.

At the hearing on the motion for new trial, Smith’s attorney admitted that she was surprised at trial when Collins implicated Smith more directly in the return of the computer than she had in a pre-trial interview. The attorney also acknowledged that the only evidence she had to directly rebut Collins’s version of events was Smith’s own testimony. But trial counsel also said she did not re-visit the issue of Smith’s taking the stand because at the time she did not want him to testify due to his prior felony convictions. She stated, “Now, in retrospect, I may think differently, but at the time, no, I didn’t — I didn’t want him to testify.”

Rather than present evidence, Smith’s attorney argued in her closing that the State had not proven its case beyond a reasonable doubt. She asserted that the Wal-Mart employees had acted precipitously in arresting Smith as he followed Collins out the door because his intention with regard to the computer was unclear. She pointed to omissions in the State’s evidence, including the lack of security footage from the parking lot to show any connection with the unidentified man and the failure to produce the security device that the Wal-Mart employee claimed to have seen Harris and the other man remove.

A trial attorney has no obligation “to inform a defendant of a ‘continuing’ right to testify or, as in this case, to re-advise a defendant of the right to testify after the State presents [its] evidence.” Thomas v. State, 282 Ga. at 896-897 (2) (b). Smith’s counsel previously advised him not to testify because she was concerned that it could open the door to evidence of his prior felonies and undercut his credibility. “Such advice is a classic example of trial strategy and tactics that do not fall outside the wide range of reasonable professional conduct. [Cit.]” Mathis v. State, 265 Ga. App. 541, 544 (2) (a) (594 SE2d 737) (2004). See also Phillips v. State, 285 Ga. 213, 218-219 (5) (a) (675 SE2d 1) (2009); Williams v. State, 239 Ga. App. 598, 599 (521 SE2d 650) (1999). Although Smith’s current counsel may not agree with that strategy and even his trial attorney may have rethought her earlier decision, “this Court does not evaluate effectiveness of trial counsel by hindsight or by what present counsel would have done.” Smallwood v. State, 296 Ga. App. at 25 (4) (e). Smith failed to show that his counsel’s performance was deficient under the criteria set out in Strickland v. Washington. “A defendant is entitled not to perfect representation but to reasonably effective assistance.” (Citation and punctuation omitted.) Turner v. State, 246 Ga. App. 49, 57 (6) (539 SE2d 553) (2000). Accordingly, it was not clear error for the trial court to deny Smith’s motion for new trial on this ground.

Decided November 3, 2010.

Charles E. W. Barrow, for appellant.

W. Kendall Wynne, Jr., District Attorney, Walter C. Howard, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

       At trial, the jury was shown a videotape of these events.

       At the hearing on the motion for new trial, the trial judge recalled that he had asked counsel during that bench trial whether venue had been proven. The prosecutor replied that it had, and, in fact, Collins had previously testified that the Wal-Mart was in Walton County. The trial court recalled that it was only after this bench conference that Smith raised questions about venue.

       Although Smith’s trial attorney did not raise an objection at trial, the Supreme Court of Georgia has “clarified that a violation of OCGA § 17-8-57 will always constitute ‘plain error,’ meaning that the failure to object at trial will not waive the issue on appeal.” (Emphasis in original.) State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010), citing Chumley v. State, 282 Ga. 855, 858 (2) (655 SE2d 813) (2008).

       The trial court did not make an inquiry into whether Smith had made a knowing waiver of his right to testify. But
      [t]here is no requirement in Georgia that the trial court engage in an on-the-record colloquy with a non-testifying defendant to inform the defendant of the right to testify and to obtain a knowing and intelligent waiver of that right. However, it has been suggested that trial courts should engage in such a colloquy as a prophylactic measure.
      (Citations omitted.) State v. Nejad, 286 Ga. at 693 (1), n. 3.

       466 U. S. 668 (104 SC 2062, 80 LE2d 674) (1984).

       Smith’s counsel apparently was concerned that he might open the door to such evidence, and, in fact, he did so at the motion hearing when he testified that he did not understand Wal-Mart’s return policies because he had not been there since he got “out of the chain gang.”


text:
    A10A1116.
    LUKE v. THE STATE.
    (703 SE2d 335)
   Adams, Judge.

Orlando Valentino Luke was convicted in 1994 of speeding, driving on the wrong side of the road, reckless driving, cocaine possession, possession of a firearm by a convicted felon, possession of a firearm during the commission of a crime, driving under the influence, aggravated assault and two counts of simple assault. In this out-of-time appeal, Luke states that he is appealing from the sentences, convictions and denial of his motion for new trial.

This is the second appearance of this case before this Court. Luke filed an earlier appeal after the trial court entered an order in March 2009 ostensibly denying a motion for new trial dated April 22, 1994. But no such motion appeared in the appellate record; rather, the only motion for new trial in the record was dated January 12, 2009, almost 15 years after Luke’s conviction. This Court determined that it lacked jurisdiction over the appeal because the January 2009 motion for new trial was untimely and therefore void. See Wright v. Rhodes, 198 Ga. App. 269 (401 SE2d 35) (1990); OCGA § 5-5-40 (a). Accordingly, the Court dismissed the appeal. Luke subsequently moved the trial court for an out-of-time appeal, which the trial court granted.

Luke’s sole argument on appeal is that the trial court erred in failing to charge the jury sua sponte on his “sole defense” of justification and that this error requires the reversal of his convictions for possession of a firearm during the commission of a crime, speeding, driving on the wrong side of the road, reckless driving and possession of a firearm by a convicted felon. We disagree.

The evidence at trial showed that in the early morning hours of May 23, 1993, a Georgia state trooper attempted a traffic stop of Luke’s car after radar indicated that he was traveling at 97 miles per hour. Luke did not stop, however, and the ensuing chase continued for fifty miles, across county lines, with as many as ten to fourteen law enforcement vehicles, lights flashing and sirens blaring, in pursuit. During the chase, Luke evaded several attempts to stop him (including a rolling roadblock), reached speeds of up to 120 miles per hour and forced other motorists off the road. At one point, he drove on the wrong side of a four-lane highway for some distance. The chase finally came to a stop when Luke’s car ran out of gas.

After Luke’s car stopped, he barricaded himself inside his vehicle, smoked crack and pointed a handgun at his own head, which kept the police at bay. For four hours, Luke refused to surrender. The stand-off ended when police rushed the car after Luke put his gun on the floorboard. During the ensuing scuffle, Luke shot a state trooper and also shot himself in the leg.

Luke testified that prior to the police chase, he was in Augusta, Georgia and men with Uzis were following him. He thought the men were after him because he had previously taken $32,000 from Atlanta drug dealers, and kept $5,000 to $6,000 for himself. Luke said he had informed the Richmond County Sheriffs Office about the men with Uzis, but they did not help him. Someone affiliated with the drug dealers told Luke that they were out to get him and his family. As he moved around Augusta, he believed that he was being followed, and he was afraid. Luke acknowledged that he was “high on crack” that day. At some point, someone gave him a gun; he took it, despite being a convicted felon, so he could protect himself. He later borrowed a car and left Augusta.

Luke said he “just took off” because he thought that as long as he was living, his family was in danger. He decided to “take myself out in order for my family to go on.” At one point after he left Augusta, he thought he saw “cars in the background” that were following him; he used crack cocaine and kept driving. His intention was to escape the drug dealers. He did not “pay any attention” to the police cars who were pursuing him; he was “just running.” He never saw the blue lights of the first trooper who began following him, and he acknowledged that the crack use may have contributed to that. At one point, after at least five police cars began following him, Luke recalled seeing bright lights, but he did not stop because he “wasn’t even thinking about stopping.” He was scared of the people he thought were following him and also afraid of the police because he believed they might have been hired to kill him by a group from Atlanta called “Hit for Hire.” He explained that “[a]t that time, my mind was totally diluted,” and he was depressed and confused. Luke also recalled seeing a police car at one point and driving around it. When asked why, he replied, “Your guess is as good as mine.” Luke stopped when his car ran out of gas; he planned to shoot himself, but he did not have the nerve. He used more crack at this point because he thought it would give him the nerve to kill himself.

Luke explained that while he knew he was speeding that night, he had no intention of running anyone off the road, and he was not trying to hurt anyone. He said if he wanted to hurt someone, he had plenty of chances to do so, but he did not intentionally hurt anyone. He did not mean to shoot the state trooper; it was an accident.

Luke argues that the evidence “was clear that [Luke’s] sole defense to most counts of conviction was that [Luke] was fleeing from Augusta, Georgia, in an attempt to escape the immediate threat of would-be assassins armed with Uzis.” “A trial court must charge the jury on a defendant’s sole defense, even without a written request, if the circumstances support the charge.” (Punctuation and footnote omitted.) Scott v. State, 281 Ga. App. 813, 815-816 (4) (637 SE2d 751) (2006).

But Luke’s trial attorney raised a number of defenses at trial. He argued in closing that the State failed to prove that the crimes occurred in Bulloch County where Luke was being tried, that Luke lacked the intent to hurt anyone or to commit any crime, and that the shooting of the trooper was an accident. Thus, justification was not his sole defense and, in fact, may have contradicted his other defenses. For example, “the defense of justification involves an intentional act and accident does not[;] both defenses are not generally involved in a single case.” Hill v. State, 300 Ga. App. 210, 212 (1) (684 SE2d 356) (2009). Similarly, his argument that he did not intend to commit any crime could be contradicted by a defense that he acted intentionally but was justified in doing so. While a defendant may choose to pursue alternative defense theories, the trial court had no obligation to charge the jury sua sponte on all possible theories of defense.

Moreover, Luke makes no attempt to argue how his subjective, drug-influenced belief that he was being pursued across the state by unidentified men with Uzis supports the application of a justification defense under Georgia law. OCGA § 16-3-20. Justification is a defense to the prosecution “for any crime,” and the defense can be asserted:

(1) [w]hen the person’s conduct is justified under Code Section 16-3-21 [use of force in self-defense], 16-3-23 [use of force in defense of habitation], 16-3-24 [use of force in defense of other property], 16-3-25 [entrapment], or 16-3-26 [coercion]; (2) [w]hen the person’s conduct is in reasonable fulfillment of his duties as a government officer or employee; (3) [w]hen the person’s conduct is the reasonable discipline of a minor by his parent or a person in loco parentis; (4) [w]hen the person’s conduct is reasonable and is performed in the course of making a lawful arrest; (5) [w]hen the person’s conduct is justified for any other reason under the laws of this state; or (6) [i]n all other instances which stand upon the same footing of reason and justice as those enumerated in this article.

OCGA § 16-3-20.

While the facts of this case do not fit neatly into any of these categories, Luke’s legal argument is similar to that of a defendant accused of a crime involving physical force, who claims the use of force was justified as self-defense. Luke asserts that his fear justified speeding, erratic driving and possessing a gun in violation of the law. But in a case of physical force, the defense of justification requires proof of a reasonable fear, and that fear must relate to the victim, not to unknown third parties:

When assessing claims of justification, the subjective fears of a particular defendant are irrelevant. . . . No precedent exists that would allow appellant to support his justification defense with an explanation that he had been the victim of an earlier attack committed by an unknown person. Such evidence is simply not relevant to whether the circumstances surrounding the commission of the crime for which appellant was being tried would have excited the fears of an objective reasonable person to the point where the use of self-defense was justified.

Decided November 3, 2010.

Brian Steel, for appellant.

Richard A. Mallard, District Attorney, Keith A. McIntyre, Assistant District Attorney, for appellee.

(Footnote omitted.) Lewis v. State, 270 Ga. 891, 893 (2) (515 SE2d 382) (1999) (holding that evidence of attack by third parties not admissible). Cf. Perry v. State, 104 Ga. App. 383, 384 (121 SE2d 692) (1961) (unreasonable or delusory fear not sufficient to constitute justification, although it “may negative the idea of malicious and intentional wrongdoing”) (decided under prior version of Georgia law on justification and self-defense).

Similarly, the proper test under Luke’s theory of defense is whether the existing situation would have excited the fears of an objective, reasonable person to the point that violating the law was justified. Luke’s subjective beliefs about unknown men with Uzis from an earlier incident does not meet this test. Contrary to Luke’s argument, there was no immediate threat of would-be assassins at the time of the crimes charged, only a pursuit by law enforcement vehicles, with lights flashing and sirens blaring. Under these circumstances, his fear based upon an earlier encounter with unidentified men could not provide justification for the crimes in the indictment; thus, the circumstances did not support a charge on justification.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

       Although the parties indicate that a copy of Luke’s timely filed motion for new trial from April 1994 has been located, no such motion appears in the appellate record in either appeal and thus no record support exists to substantiate this Court’s jurisdiction over a direct appeal from the trial court’s March 2009 order.

       In his initial brief, Luke also sought reversal of the aggravated assault charge as well, but Luke’s counsel later determined “upon reflection, . . . that the Aggravated Assault Count is not supported by the defense of justification” because “[t]here was no evidence presented at trial that [Luke] believed that he was being pursued by murderers when the Aggravated Assault occurred.”

         See Hill v. State, 300 Ga. App. at 212 (1).

       See OCGA § 16-3-20 (6) (justification defense applies in instances “which stand upon the same footing of reason and justice as those enumerated in this article”).


author: Johnson, Judge.

text:
    A10A1757, A10A1759.
    ELECTRIC WORKS CMA, INC. v. BALDWIN TECHNICAL FABRICS, LLC (two cases).
    (703 SE2d 124)
   Johnson, Judge.

Electric Works CMA, Inc. filed a verified complaint against Baldwin Technical Fabrics, LLC, seeking payment of $84,277.43 on a commercial account, as well as interest and attorney fees. Baldwin filed a counterclaim, seeking, among other things, punitive damages in an amount not exceeding $250,000. Following a jury trial, the jury ' found that Baldwin owed $82,777.43 to Electric Works on the ; commercial account.

In entering judgment, the trial court refused to award interest or attorney fees to Electric Works; and Electric Works appeals that order in Case No. A10A1757. After Baldwin filed a cross-appeal of the trial court’s denial of its motion for a directed verdict, Electric Works filed a motion to require Baldwin to post a supersedeas bond pursuant to OCGA § 5-6-46 (a). The trial court denied the motion for a supersedeas bond, and Electric Works appeals the trial court’s order in Case No. A10A1759. For the reasons provided below, we reverse and remand in Case No. A10A1757, and we dismiss Case No. A10A1759 as moot.

On appeal following a jury trial, the evidence must be construed to uphold the verdict of the jury, and “[e]very presumption and inference arising from the evidence must be considered in favor of the verdict.” So viewed, the evidence shows that Electric Works was a contractor that provided electrical services and materials to Baldwin during 2006. In connection therewith, Electric Works provided Baldwin with invoices in the amounts of $70,899.90 on September 5, 2006, $4,927.53 on October 22, 2006, and $8,450 on November 16, 2006. Electric Works informed Baldwin that it intended to charge interest at a rate of 1.5 percent per month on invoices that remained unpaid after 30 days. In addition, Electric Works notified Baldwin that if it was required to commence litigation in order to recover the amount due, it would seek attorney fees and costs under the Georgia Prompt Pay Act. Nevertheless, Baldwin refused to make payment under any of the invoices.

On August 10, 2007, Electric Works filed suit against Baldwin. Electric Works claimed that Baldwin owed it $84,277.43 under the three unpaid invoices, interest in the amount of 1.5 percent per month as provided in the invoices and pursuant to OCGA § 7-4-16, and attorney fees and costs pursuant to the Prompt Pay Act. Baldwin filed a counterclaim, but it later withdrew or dismissed each of the claims raised therein.

At trial, Electric Works argued that the jury could subtract $1,500 from the $84,277.43 due under the invoices in order to provide Baldwin with a credit “that [Baldwin] think[s] they’re entitled to.” The reduction resulted in a total amount of $82,777.43, and Electric Works informed the jury that “[tjhat’s the amount that [it should] put in the jury verdict form that the plaintiff is entitled to.” As requested by Electric Works, the jury returned with a plaintiffs verdict of $82,777.43. In entering judgment, however, the trial court refused to provide Electric Works with interest pursuant to OCGA § 7-4-16 or attorney fees pursuant to the Prompt Pay Act.

Case No. A10A1757

1. Electric Works claims the trial court erred in refusing to award interest pursuant to OCGA § 7-4-16. That statute provides:

. . . The owner of a commercial account may charge interest on that portion of a commercial account which has been due and payable for 30 days or more at a rate not in excess of IV2 percent per month calculated on the amount owed from the date upon which it became due and payable until paid. . . .

Because a commercial account is by definition a liquidated claim, OCGA § 7-4-16 is applicable only in cases in which the owner of the account has made a liquidated demand.

Here, Baldwin alleges that the amount due under the invoices did not represent a liquidated claim because Electric Works suggested that the jury offset the amount due under the invoices by $1,500. However,

we have repeatedly held that a commercial account at issue is liquidated (and therefore subject to pre-judgment interest) even though the defendant has unsuccessfully contested the amount due . . . [and e]ven though the ultimate amount awarded is less than that requested, or the amount is offset by a counterclaim amount.

Electric Works presented evidence that Baldwin owed the specific debt of $84,277.43 and failed to pay that amount after its demand. The fact that the jury did not ultimately award the entire amount of Electric Works’ original claim did not make the damages unliquidated, and “[w]e therefore hold that the amount of the unpaid balance as determined by the jury was a due and payable liquidated debt on a commercial account, subject to prejudgment interest under OCGA § 7-4-16.”

2. Electric Works also claims that the trial court erred in refusing to award it attorney fees pursuant to the Georgia Prompt Pay Act, which generally provides that “[performance by a contractor ... in accordance with the provisions of his or her contract and the satisfaction of the conditions of his or her contract precedent to payment entitles such person to payment from the party with whom he or she contracts.” Given that Baldwin had an interest in the real property where Electric Works performed the improvements and that Baldwin ordered the improvements to be made, Electric Works was a “contractor” entitled to enforce its claim under the Prompt Pay Act.

OCGA § 13-11-8 provides that

[i]n any action to enforce a claim under this chapter, the prevailing party is entitled to recover a reasonable fee for the services of its attorney including but not limited to trial and appeal and arbitration, in an amount to be determined by the court or the arbitrators, as the case may be.

Here, the trial court apparently concluded that Electric Works was not entitled to attorney fees pursuant to OCGA § 13-11-8 because it had not produced “any evidence of bad faith.” However, we have already acknowledged that entitlement to attorney fees under the Prompt Pay Act does not require a showing of bad faith. We therefore direct the trial court, on remand, to enter judgment that includes prejudgment interest (as set forth in Division 1), as well as attorney fees and post-judgment interest pursuant to the Prompt Pay Act.

Case No. A10A1759

Electric Works also appeals from the trial court’s order denying its motion to require Baldwin to post a supersedeas bond pursuant to OCGA § 5-6-46. That statute provides that after a party files a notice of appeal in a civil case, “upon motion by the appellee, made in the trial court before or after the appeal is docketed in the appellate court, the trial court shall require that supersedeas bond or other form of security be given. . . ,”

Decided November 3, 2010.

Brian J. Passante, for appellant.

Martin L. Fierman, for appellee.

We have previously confirmed that a trial court has no discretion under OCGA § 5-6-46 to refuse to require a supersedeas bond posted for the benefit of an appellee who seeks security for a money judgment. Here, however, we have already dismissed Baldwin’s cross-appeal, and a remittitur in that case was issued on June 23, 2010. As a result, the trial court’s refusal to require a supersedeas bond pursuant to OCGA § 5-6-46 is moot, and we grant Baldwin’s motion to dismiss Case No. A10A1759.

Judgment reversed and case remanded with direction in Case

No. A10A1757. Case No. A10A1759 dismissed as moot.

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

       Baldwin’s cross-appeal was dismissed by this Court on June 7, 2010. See Case No. A10A1758. We note that Baldwin’s appellee brief for Case No. A10A1757 includes “enumerations of error” related to the trial court’s denial of its motion for a directed verdict. Inclusion of enumerations of error in an appellee brief does not comply with Court of Appeals Rule 25 (b), but we deny Electric Works’ motion to “strike or dismiss” Baldwin’s appellee brief.

       (Citation omitted.) Kroger Co. v. U. S. Foodservice of Atlanta, 270 Ga. App. 525 (607 SE2d 177) (2004).

       OCGA § 13-11-1 et seq.

        Kroger, supra at 531-532 (4).

        Hampshire Homes v. Espinosa Constr. Svcs., 288 Ga. App. 718, 723 (2) (b) (655 SE2d 316) (2007).

        Kroger, supra at 532 (4).

       OCGA § 13-11-3.

       OCGA § 13-11-2 (1), (4).

        Hampshire, supra at 724; compare OCGA § 13-6-11.

       Id.; Kroger, supra at 532 (4).

       (Emphasis supplied.) OCGA § 5-6-46 (a).

        Barngrover v. Hins, 289 Ga. App. 410, 414 (3) (657 SE2d 14) (2008).

       See id.