author: Ray, Judge.

text:
    A12A1608.
    REAVES et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (734 SE2d 773)
   Ray, Judge.

Angela Reaves, as executrix of the estate of her deceased husband, Timothy Reaves, appeals from the trial court’s grant of summary judgment to State Farm Mutual Automobile Insurance Company (“State Farm”) on her claims for her own loss of consortium and her late husband’s injuries. At issue is whether Reaves has met the statutory requirements of OCGA § 33-7-11 (b) (2) for coverage of claims against an uninsured motorist. We find that she has, and, accordingly, we reverse the judgment in part and remand the case to the superior court with direction.

On appeal from a grant of summary judgment, we apply a de novo standard of review, and consider the evidence and all reasonable inferences and conclusions drawn from it in the light most favorable to the nonmoving party. Summary judgment is appropriate where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.

On February 18, 2009, Timothy Reaves was driving a truck owned by his employer on Interstate 75 in Peach County. A thunderstorm developed, producing rain, hail, and strong gusts of wind. Angela Reaves claims that a large tractor-trailer, driven by an unidentified “John Doe,” veered into Timothy Reaves’ lane of travel and made contact with the rear of his vehicle, causing it to spin out of control and collide with a highway barrier, resulting in serious injuries to Timothy Reaves. A witness, Cedric Perkins, saw the tractor-trailer swerve into the lane that his vehicle and Timothy Reaves’ vehicle were traveling in, and saw Timothy Reaves crash into the barrier, but did not see any actual physical contact between the tractor-trailer and Timothy Reaves’ truck.

Pursuant to OCGA § 33-7-11 (b) (2):

A motor vehicle shall be deemed to be uninsured if the owner or operator of the motor vehicle is unknown. . . . [I]n order for the insured to recover under the endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact shall have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured. Such physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.

After her husband died in September 2009, Angela Reaves sued. The trial court then granted State Farm’s motion for summary judgment, finding that the requirements of OCGA § 33-7-11 (b) (2) had not been met because there was only circumstantial evidence of physical contact between Timothy Reaves’ truck and the “phantom vehicle” tractor-trailer and that such contact had not been corroborated; the court also found that, in the absence of physical contact, Perkins’ eyewitness account did not serve to corroborate Timothy Reaves’ statements regarding causation of the accident by the tractor-trailer. The court did not rule on the admissibility of deposition testimony and other evidence from her late husband that Angela Reaves attempted to use to establish actual physical contact.

1. Angela Reaves contends that the trial court erred in finding that OCGA § 33-7-11 (b) (2) requires corroboration of her late husband’s statements that there was actual physical contact between his truck and the tractor-trailer.

While it is clear that OCGA § 33-7-11 (b) (2) requires eyewitness corroboration in the event that there is no physical contact, the issue squarely before us is whether corroboration is required where there is direct evidence of actual physical contact, which Angela Reaves attempts to present through deposition testimony from her late husband, as well as statements he made to physicians and to his employer.

Timothy Reaves stated in a deposition taken in preparation for a workers’ compensation action that “the right rear of my vehicle . . . took a bump or something from the tractor-trailer.” In a claim report for his employer, he wrote that his truck was “clipped [on] the rear... causing me to slam into the guard rail.” His physicians’ notes state that he reported being “hit from behind by an 18 wheeler” and “hit by a tractor trailer on the rear driver’s side.”

If admissible, the above statements constitute direct evidence. Direct evidence is “evidence which immediately points to the question at issue.” Or, put another way, it is “evidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption.”

In granting State Farm’s motion for summary judgment, the trial court held that the evidence Angela Reaves presented was circumstantial and that circumstantial evidence of physical contact requires corroboration under OCGA § 33-7-11 (b) (2).

This Court determined in Bone v. State Farm Mutual Insurance that corroboration is required for the physical contact element of the statute. In Bone, however, unlike the instant case, all evidence of physical contact was circumstantial. The Bone plaintiff deposed that he neither felt nor saw any contact between the vehicles, but believed impact occurred because of damage to his car. His only other evidence was an affidavit from the person who painted his car, stating that there was body damage to the vehicle “as if” it had been struck by another car.

Bone is not only distinguishable from the instant case in that it determined that corroboration is required where the only evidence of physical contact is circumstantial, but also it is incorrect in applying the corroboration requirement to the statute’s physical contact element. To do so, Bone relies on language in Murphy v. Georgia General Insurance Company indicating that circumstantial evidence such as “statements given by the plaintiff to police, testimony of the plaintiff in both affidavits and depositions and/or physical damage to the plaintiff’s automobile” is insufficient corroboration. However, Murphy made this determination in the very limited context of a case involving no evidence or allegation of actual physical contact between the vehicles. In Murphy, the plaintiff was the only eyewitness to his own accident, and this Court found that he could not substitute his own “corroboration” for the independent eyewitness corroboration required by the statute where there is no physical contact.

Here, the pertinent portion of OCGA § 33-7-11 (b) (2) provides only that the insured must show “actual physical contact... between the motor vehicle owned or operated by the unknown person and the person or property of the insured.” In a separate sentence dealing only with the lack of physical contact, OCGA § 33-7-11 (b) (2) continues, “[s]uch physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.”

When interpreting a statute, “we are required to follow the literal language of the statute unless it produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else.”* Further, if the General Assembly intended something other than the literal meaning of the words used in this statute, it could have otherwise specified.

The error in Bone was recognized by Presiding Judge McMurray in a later case in a special concurrence in which he wrote:

A reading of OCGA § 33-7-11 (b) (2) shows that the corroboration requirement relates only to the exception which is provided for those circumstances in which there is no physical contact between the vehicles of the unknown uninsured motorist and the insured. Or, in other words where there has been actual physical contact, there is no corroboration requirement and the proof of the fact of actual physical contact may be provided under general rules of evidence.

Thus, to the extent that Bone can be read to require corroboration of actual physical contact under OCGA § 33-7-11 (b) (2), it is overruled. Accordingly, we find that the trial court erred in granting summary judgment, and we reverse.

2. The evidence discussed in Division 1 consists of a deposition Timothy Reaves gave in preparation for a workers’ compensation action; statements he made to his treating physicians after the accident; and a report of claim that he made to his employer after the accident. On appeal, State Farm does not contest the admissibility of the report of claim, but does contest the admissibility of the deposition and statements to Reaves’ physicians, apparently in an attempt to show that the trial court’s ruling was right for any reason. State Farm contested the admissibility of the deposition and medical documents below, but the trial court did not rule on the issue.

In regards to the medical records, the facts are set, and we are able to apply the facts to the law in the same manner as the trial court in furtherance of judicial economy. OCGA § 24-3-4 provides that “[statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admissible in evidence.” Here, it is clear from the record that Timothy Reaves made these statements to his physicians while seeking medical treatment and diagnosis shortly after his accident. The medical documents are admissible.

Decided November 27, 2012 —

Reconsideration denied December 14, 2012

Adam P. Taylor, for appellants.

Beck, Owen & Murray, Samuel A. Murray, Jr., for appellee.

As to the Workers’ Compensation deposition, however, the record does not contain certain facts relative to the identity of the parties and the claims necessary for us to reach the issue of admissibility. Further, there is nothing in the record indicating whether the report of claim was, for example, a business record. If these documents are admissible, Angela Reaves may be able to prove actual physical contact between Timothy Reaves’ vehicle and that of the unidentified motorist. Whether these documents are admissible, however, must be determined in the first instance by the court below, exercising its discretion under the appropriate authority. Accordingly, we remand the case for further proceedings not inconsistent with this opinion.

3. Angela Reaves additionally contends that the testimony of the eyewitness, Perkins, sufficiently corroborated her late husband’s account of how the accident occurred. Because of our finding in Division 1, we need not reach this issue.

Judgment reversed in part and case remanded with direction.

Ellington, C. J., Barnes, P. J., Miller, P. J., Phipps, P. J., Doyle, P. J., Andrews, Adams, Dillard, McFadden, Boggs and Branch, JJ., concur.

        Bituminous Ins. Co. v. Coker, 314 Ga. App. 30, 30 (722 SE2d 879) (2012).

       OCGA § 9-11-56 (c).

       (Emphasis supplied.)

       OCGA § 24-1-1 (3).

       (Citation and punctuation omitted.) Hicks v. Heard, 286 Ga. 864, 868 (692 SE2d 360) (2010).

       215 Ga. App. 782 (452 SE2d 523) (1994).

       Id. at 783.

       Id.

       208 Ga. App. 501, 501 (431 SE2d 147) (1998).

       Id.

       (Citation and punctuation omitted.) Bituminous Ins. Co., supra at 35.

       See Hoffman v. Doe, 191 Ga. App. 319, 320 (2) (381 SE2d 546) (1989) (construing OCGA § 33-7-11 (b) (2)).

        Painter v. Continental Ins. Co., 233 Ga. App. 436, 440 (504 SE2d 285) (1998) (McMurray, P. J., concurring specially).

         See City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002) (appellate courts may exercise discretion as to when to follow the “right for any reason” rule and consider grounds not addressed by the trial court).

       See id. at 838 (“The de novo review standard advances judicial economy by recognizing that, in summary judgment cases, the factual record is set and the appellate courts can, as well as the trial courts, apply those facts to the law”).

       See An v. Active Pest Control South, Inc., 313 Ga. App. 110, 110-111 (720 SE2d 222) (2011).

       See OCGA § 9-11-32 (a) (3) (A) (“The deposition of a witness... may be used by any party for any purpose if the court finds: That the witness is dead”); OCGA § 24-3-10 (“The testimony of a witness since deceased... which was given under oath on a former trial upon substantially the same issue and between substantially the same parties may be proved by anyone who heard it and who professes to remember the substance of the entire testimony”); OCGA § 24-3-14 (b) (“Any writing or record... made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof... if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter”).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A12A1622.
    HARGIS v. THE STATE.
    (735 SE2d 91)
   Branch, Judge.

On appeal from his conviction for attempt to manufacture methamphetamine, possession of ephedrine and pseudoephedrine, and other crimes, Anthony Hargis argues that the trial court erred when it denied his motion to suppress evidence seized pursuant to his July 2009 arrest after he failed to appear at trial originally scheduled for February 2009 and when it did not recuse itself after receiving an ex parte communication before trial from a co-defendant’s counsel about Hargis’s alleged propensity for violence. Because the trial court erred when it failed to recuse itself from the case after receiving the ex parte communication, we reverse Hargis’s conviction and order a new trial. Taking up the matter because it is likely to recur on retrial, we also conclude that the trial court erred when it denied Hargis’s motion to suppress the evidence seized in July 2009.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the record shows that in June 2006, after reviewing records concerning Hargis’s transactions on eBay between September 2003 and March 2006, including the purchase of a number of items used in methamphetamine manufacture, a drug enforcement agent obtained a warrant to search the house where Hargis lived with co-defendant Karen Taylor. The agent found Hargis working in an outbuilding outfitted with equipment used in methamphetamine manufacture, a ventilation shaft, and a surveillance camera. Taylor arrived during the search, and both were arrested. An agent recovered a handgun from a bedroom in the house. Other evidence seized included shipping labels addressed to Hargis, a box of false identification cards with his picture on each card, over-the-counter tablets containing ephedrine and pseudoephedrine, and liquids that tested positive for the two substances. Agents also found written directions to a number of pharmacies in Taylor’s handwriting. In September 2006, Hargis was charged with attempt and conspiracy to manufacture methamphetamine, possession of ephedrine and pseudo-ephedrine, possession of false identification, and second-degree forgery.

When Hargis did not appear at a scheduled trial in February 2009, a bench warrant was issued for his arrest. After receiving an anonymous tip in July 2009 that Hargis was at his house, officers went to the house one afternoon and saw a beige truck matching the neighbors’ description of Hargis’s vehicle appear in the driveway and then speed away. An officer soon saw the truck parked at a convenience store, unoccupied but with its headlights on. When the officer saw a man walk up and get into the driver’s seat of the truck, he pulled up to the truck and activated his blue lights. The officer told the man that a be on the lookout had issued on the truck and that its owner was wanted on an arrest warrant. The officer then asked the man for his driver’s license. When the man fumbled with his wallet, the officer saw two forms of identification inside it. When the man said that he did not have a license and did not have to give his name, the officer asked him to step out of the truck. When the man did so, the officer began to handcuff him “for [the officer’s] safety” and until the officer “could identify who [Hargis] actually was.” Hargis resisted and cursed the officer, but other officers arriving on the scene helped to subdue him.

With Hargis now under arrest for obstruction, the officer picked up Hargis’s wallet (which he had left on the driver’s seat of the truck), opened it, and saw two identification cards with the same picture but different names. After the first officer gave a second officer one of the false IDs, the second officer looked into the truck and saw two drugstore bags lying in the passenger’s side front seat. The second officer opened the truck door, retrieved and opened the bags, and found items containing ephedrine, lighter fluid, brake cleaner, and 17 identification cards bearing Hargis’s photograph.

Based on the evidence obtained from Hargis’s truck, officers obtained a search warrant for Hargis’s house and found boxes containing devices for manufacturing and smoking methamphetamine, one of which contained the drug. A tape recorder and cassette tape were also seized. Conversations on the tape included Hargis instructing Taylor on the use of the recorder, Taylor’s conversations with her counsel, and their negotiations with prosecutors assigned to the case.

One month later, at a pretrial hearing on the 2006 charges including attempt and conspiracy to manufacture methamphetamine, the trial court ruled that evidence of the events incident to Hargis’s July 2009 arrest were admissible as a similar transaction. Later in the same hearing, Hargis moved to suppress the evidence seized in July 2009 as the product of an illegal search. The trial court denied the motion.

On the first day of Hargis’s trial on the 2006 charges, held in late September and early October 2009, and in addition to the evidence directly supporting those charges, the State moved to admit evidence of Hargis’s failure to appear at the February 2009 trial as indicating consciousness of guilt as well as the tape seized in July 2009 for the purpose of showing the existence of a conspiracy between Taylor and Hargis. The court ruled the tape admissible for the limited purpose of showing the existence of a conspiracy. After a jury found Hargis guilty on all counts, the State introduced evidence for sentencing purposes of two 1997 felony convictions from Arizona, including one for attempted possession of methamphetamine manufacturing equipment. Hargis was convicted and sentenced as a recidivist to two consecutive life terms plus twenty years.

On June 3, 2011, Hargis’s appellate counsel filed an amended motion for new trial arguing, inter alia, that the trial court erred when it sentenced Hargis and when it failed to recuse itself after receiving an ex parte communication from Taylor’s counsel. During the hearing on the motion, held the same day, the prosecutor testified that at some point before trial, Taylor’s counsel had entered chambers and, outside the presence of Hargis’s counsel, had talked to the judge about the tape discovered in the July 2009 search. Hargis’s trial counsel testified that at the time of this communication between Taylor’s counsel and the judge, he knew that Taylor’s counsel had met with the judge on the subject of the tape but did not know that Taylor’s counsel had expressed “concerns” about Hargis until after trial. Hargis’s trial counsel did not object or move to recuse the judge on the basis of this meeting. Under examination by Hargis’s appellate counsel, Taylor’s counsel confirmed that she had spoken to the judge outside the presence of either Hargis or his trial counsel about her “concerns,” including “personal safety issues and things of that nature.” The testimony continues:

Q. And when you say “concerned about safety issues,” what do you mean?
A. I considered Mr. Hargis to be somewhat — I’ve always been very leery about Mr. Hargis, danger kind of things, you know, just always somebody that I would probably watch my back with.
Q. And that was something you communicated to the judge, is that correct?
A. Can’t recall the specifics of the conversation, but I do recall that being a concern. ... I just remember being concerned about the contents of the tape, what I might have said on the tape, what Ms. Taylor might have said on the tape, what Mr. Hargis might have heard on the tape and, you know, if that were to be played in open court or if Mr. Hargis were to hear it or something like that, there were some personal safety issues that I was concerned about.
Q. And just to specify, when you say you were concerned about it, was that concern something you voiced with the judge?...
A. I believe I did. I can’t quote that a hundred percent, but I believe I did.

The State concedes that neither Hargis nor his trial counsel was present for this ex parte communication, and there is no evidence that Hargis learned of its contents before or during trial.

Eight months after the hearing on the amended motion, the trial court denied the remainder of Hargis’s motion for new trial. Neither at the hearing on the motion nor in its order denying it did the trial court dispute any part of Taylor’s counsel’s account of the ex parte communication.

1. As a preliminary matter, we note that although Hargis asserts that the trial court erred when it denied his motion to suppress the evidence seized from his truck and house during the July 2009 search, he does not dispute the sufficiency of the remaining evidence against him. Reserving the merits of Hargis’s motion to suppress for Division 3 below, we conclude that the evidence seized during the 2006 search of Hargis’s residence was sufficient to sustain his conviction for the charges against him, all of which date from 2006. See OCGA §§ 16-13-33 (defining attempt to violate the controlled substances laws, punishable by “imprisonment not exceeding the maximum punishment prescribed for the offense”); 16-13-30.3 (b) (1) (defining possession of ephedrine and pseudoephedrine); 16-9-4 (b) (1) (defining possession of false identification); 16-9-1 (c) (defining forgery in the second degree); Jackson, supra.

2. On appeal, as below, Hargis argues that the trial court erred when it failed to recuse itself in the wake of receiving the ex parte communication from Taylor’s counsel.

Section (B) (7) of Canon 3 of the Georgia Code of Judicial Conduct forbids a judge from considering an ex parte communication:

Judges shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. Judges shall not initiate or consider ex parte communications, or consider other communications made to them outside the presence of the parties concerning a pending or impending proceeding, [excepting communications for administrative purposes, emergencies, consultations with experts or court personnel, and settlement conferences].

(Emphasis supplied.) See also Uniform Superior Court Rule 4.1 (“judges shall neither initiate nor consider ex parte communications by interested parties or their attorneys concerning a pending or impending proceeding”). It is also clear that ex parte communications “are presumed to have been in error.” City of Pendergrass v. Skelton, 278 Ga. App. 37, 39 (1) (628 SE2d 136) (2006); see also In the Interest of D. D., 310 Ga. App. 329, 332 (2) (713 SE2d 440) (2011). Once a party has shown that a judge has received an ex parte communication, therefore, the resulting presumption of harm can be overcome only by an affirmative showing that the judge did not consider the communication. See Arnau v. Arnau, 207 Ga. App. 696, 696-697 (1) (429 SE2d 116) (1993) (judge who acknowledged ex parte meeting with a witness did not provide evidence sufficient to overcome presumption that the communication was error); compare In re Martin, 218 Ga. App. 79, 80 (1) (460 SE2d 304) (1995) (ex parte letter sent to judge by witness was not harmful error when party asserting error did not argue that the judge responded in any manner or gave the letter any consideration). We thus examine in greater detail (a) whether Hargis’s failure to object or to move for the judge’s recusal after learning of the communication amounted to a waiver of his claim of error concerning it, and (b) whether the State can rebut a presumption of harm.

(a) First, Hargis did not waive his objection to the ex parte communication. Canon 3 (E) (1) sets out the general provision that “[¡judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned,” including cases in which the judge “has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding”; has served as or associated with a lawyer or served as a witness “in the matter of controversy”; or has personal connections to the case. Georgia Code of Judicial Conduct, Canon 3 (E) (1) (a)-(e). The waiver provision of Canon 3 is set out in section (F), which provides that “[¡judges disqualified by the terms of Section 3 (E)” — that is, the general provision — “may disclose on the record the basis of their disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification.” Code of Judicial Conduct, Canon 3 (E), (F).

On its face, then, Canon 3 (F)’s waiver provision cannot be applied to the ex parte communications covered by the more specific prohibitions of Canon 3 (B) (7). As the Supreme Court of Georgia has held, moreover, in situations involving “specific disqualification standards,” the Canon is “meant to be self-enforcing, and it is the trial [court’s] duty to disqualify himself as soon as he is aware that the grounds exist.” (Citation and punctuation omitted.) Pope v. State, 257 Ga. 32, 34 (2) (a) (354 SE2d 429) (1987) (citing the 1984 version of Canon 3 as well as 28 USC § 455 (e), which provides that “[njo justice, judge, or magistrate... shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b) [,]” including cases in which the judge has “personal knowledge of disputed evidentiary facts concerning the proceeding”). Thus “[njo waiver of disqualification under one of the specific disqualifications standards,” which now includes subsection 3 (B) (7)’s standard governing ex parte communications, “is possible” unless authorized by the Canon itself. (Citation omitted.) Id. at 34 (2) (a) and n. 1 (noting 1984 Canon’s “waiver provision with respect to two of the specific disqualification grounds”); see also Mayor and Aldermen of the City of Savannah v. Batson-Cook Co., 291 Ga. 114, 119 (1) (728 SE2d 189) (2012) (an appellate court reviews a trial court’s ruling on a motion to recuse under Canon 3 (E) de novo rather than for an abuse of discretion).

As we have suggested above, there is no dispute that before being relieved of his duties, trial counsel for Hargis had no notice of the

contents of the ex parte communication between Taylor’s counsel and the trial court; that the communication asserted that Hargis might react with violence to the knowledge that Taylor had met with prosecutors and taped her conversations with them and with him; and that appellate counsel for Hargis raised the matter of the ex parte communication in the amended motion for new trial and proffered undisputed evidence as to its contents at the hearing on that motion. Pretermitting whether trial counsel should have investigated further or objected sooner, appellate counsel raised the matter of the ex parte communication at the hearing on Hargis’s amended motion for new trial before the judge who received the communication, who never affirmatively stated that she did not consider it, and who was thus presiding over the issue of her own qualifications to rule on the motion for new trial after the matter had been raised. Because Canon 3 does not authorize a waiver when the issue of an ex parte communication is thus raised in the trial court, Hargis’s failure to move to recuse cannot amount to a waiver of his claim that the trial court should have recused itself. See In the Interest of D. D., supra at 331 (2) (remanding for further proceedings concerning judge’s ex parte communication with a school official, including determinations as to whether issue was waived because raised for the first time in the appellate court); compare Ga. Power Co. v. Ga. Public Svc. Comm., 196 Ga. App. 572-573 (1) (396 SE2d 562) (1990) (complaint of ex parte communication had been waived on appeal when the issue was raised by a different party below).

(b) Nor can the State show that the trial court’s error in receiving the ex parte communication was harmless.

In Arnau, supra, this Court ordered a new trial when an ex parte communication between a court-appointed psychologist and the trial court had deprived a party of “the opportunity to cross-examine the witness with respect to any opinions he offered” during the ex parte communication “or to respond to any new allegations or other evidence which may have been presented to the court.” (Citation omitted.) 207 Ga. App. at 696-697 (1). Because there was “no transcript of the ex parte meeting included in the record,” the party opposing the motion for new trial could not prove that the information was cumulative. Id. at 697 (1). Moreover, “even if such a showing had been supported by the record, the fact that ex parte communication is merely cumulative would not make the consideration of such evidence harmless error” because “[e]x parte communications are presumed to have been in error.” (Citation omitted.) Id.

Here, as in Arnau, there is no dispute as to the contents or relevance of the ex parte communication: co-defendant Taylor’s prior counsel told the court, outside the presence of Hargis or his counsel, that Hargis might react violently to the knowledge that Taylor had recorded her conversations with him and with prosecutors. This information was not cumulative because none of the charges against Hargis involved crimes or threats of violence. Even if the information as to Hargis’s dangerousness had been cumulative, moreover, the State could not refute a presumption of harm when the trial court never disputed that it listened to the communication and that the account of it given at the hearing on the motion for new trial was accurate.

When the court considers facts not properly in evidence, the other party has rights that can not be protected fully if he is thus denied the privilege of cross-examination. We know that citizens’ rights and liberties are jeopardized when courts abandon the tried and proven court procedure of admitting only relevant evidence and producing witnesses who are subject to cross-examination.

Arnau, supra at 697 (1). Because “so fundamental a right” was denied Hargis as a result of Taylor’s counsel’s ex parte meeting with the judge, the trial court erred when it failed to recuse itself from the case, and, therefore, when it denied Hargis’s motion for new trial. Accordingly, a new trial is necessary. Id. (ordering new trial on the basis of judge’s reception of ex parte communication from witness); Johnson v. State, 278 Ga. 344, 346-348 (3) (602 SE2d 623) (2004) (judge’s conduct, including ex parte communication with prosecutor during trial, resulted in an impression of bias, requiring reversal). We therefore reverse Hargis’s conviction and remand for further proceedings consistent with this opinion.

3. Of Hargis’s remaining assertions of error, the only issue we deem likely to recur on retrial is whether evidence seized from his truck and house in the wake of his July 2009 arrest was properly admitted. Hargis argues that because his arrest for obstruction occurred before police seized either his false identification in his wallet or the supplies in the bags also left in the truck, the search of his truck and house yielding these items was illegal. We agree.

(a) As the United States Supreme Court noted in Arizona v. Gant, 556 U. S. 332 (129 SC 1710, 173 LE2d 485) (2009), “circumstances unique to the vehicle context” justify a warrantless search incident to a lawful arrest “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” (Citation and punctuation omitted; emphasis supplied.) Id. at 343 (III). “[T]he offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.” (Emphasis supplied.) Id. at 344 (III). “In many cases,” however, “as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence.” (Citations omitted.) Id. at 343 (III). Thus the Court concluded:

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

(Emphasis supplied.) Id. at 351 (VI).

The Supreme Court of Georgia recently applied Gant when it suppressed the results of a police search of a vehicle after its occupant had been arrested on an outstanding warrant. “ ‘[Bjecause officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains.’ ” Boykins v. State, 290 Ga. 71, 72 (2) (717 SE2d 474) (2011), quoting Gant, 556 U. S. at 343, n. 4. Specifically, and because “exceptions to the warrant requirement ensure [that] police may constitutionally search a vehicle when circumstances present genuine safety or evidentiary concerns during the arrest of a vehicle’s recent occupant,” our Supreme Court concluded that the trial court erred when it denied a motion to suppress the results of that vehicle search. (Punctuation omitted; emphasis supplied.) Boykins, supra at 73 (2).

The only issue raised and ruled on below was whether the seizure of Hargis’s wallet and bags from the truck was authorized as incident to his arrest for obstruction. When the officers in this case saw a man get into the driver’s seat of the truck identified as Hargis’s, they had sufficient justification to detain him for the purpose of determining whether he was the subject of the arrest warrant. See State v. Williams, 264 Ga. App. 199, 202-203 (590 SE2d 151) (2003) (reversing grant of motion to suppress where officer did not unnecessarily prolong traffic stop for purpose of determining whether defendant had an outstanding warrant against him). When Hargis refused to identify himself as either the subject of the warrant or the driver of the truck, police obtained probable cause to arrest him for obstruction. Wynn v. State, 236 Ga. App. 98, 100 (2) (511 SE2d 201) (1999) (a driver who gave a false name when seated behind the wheel of a parked car provided evidence sufficient to prove obstruction); Hall v. State, 201 Ga. App. 328, 328-329 (1) (411 SE2d 274) (1991) (defendant driver’s refusal to provide identification to the officer was sufficient evidence that she hindered the execution of an officer’s duties); Coney v. State, 316 Ga. App. 303, 307-308 (3) (a), (b) (728 SE2d 899) (2012) (even where information that defendant has an outstanding warrant is in error, police reasonably relying on that information were authorized to arrest defendant and search his person incident to that arrest).

Hargis had already been removed from the truck and handcuffed before the police search of his vehicle began, however, with the result that police cannot show that their safety required a search of the truck’s passenger compartment during the arrest. See Boykins, supra, 290 Ga. at 72 (2) (noting the lack of evidence as to defendant’s physical location “in relation to the vehicle at the time of the search”). Because Hargis’s “offense of arrest” was obstruction of police’s efforts to identify him as the subject of the arrest warrant, moreover, we cannot say that the officers acted lawfully when they seized and examined the wallet and bags remaining in the truck after Hargis was handcuffed. See Canino v. State, 314 Ga. App. 633, 639-641 (2), (3) (725 SE2d 782) (2012) (reversing denial of motion to suppress when the police searched defendant’s car “immediately after” defendant was placed under arrest and when the State failed to show either that the defendant was “unsecured at the time the search began” or that the impoundment of his vehicle was reasonably necessary); Holsey v. State, 306 Ga. App. 75, 76-77 (1) (701 SE2d 538) (2010) (results of warrantless search of vehicle following arrest for loitering were properly suppressed when defendant was not within reach of vehicle and there was no likelihood that evidence of loitering would be found inside). Compare Hawkins v. State, 307 Ga. App. 253, 256-257 (1) (704 SE2d 886) (2010) (affirming denial of motion to suppress when police reasonably believed that text messages proving defendant’s involvement in drug deal would be found in the cell phone remaining in her car after her arrest), aff’d, 290 Ga. 785 (723 SE2d 924) (2012). When Hargis refused to provide identification and was arrested, police could not reasonably have believed that further evidence relevant to the “offense of arrest” — that is, his obstruction of police efforts to identify him — could be found in the truck. It follows that the State has presented no evidence of “genuine safety or evidentiary concerns” sufficient to justify a warrantless search in the immediate aftermath of that arrest. Boykins, supra at 73 (2) (reversing denial of motion to suppress when the State “failed to meet its burden of proving the search incident to arrest exception to the warrant requirement”). We therefore conclude that the police’s search of his truck was unlawful and that the trial court erred when it denied Hargis’s motion to suppress the results of the search.

Decided November 29, 2012

Reconsideration denied December 14, 2012

(b) Because we reverse the trial court’s denial of Hargis’s motion to suppress evidence of the wallet and bags recovered from his truck moments after his July 2009 arrest for obstruction, we also direct the trial court to suppress the evidence recovered from his house pursuant to the search warrant obtained on the basis of these illegally seized items as “fruit of the poisonous tree.” (Citation and punctuation omitted.) State v. Driggers, 306 Ga. App. 849, 852-853 (3) (702 SE2d 925) (2010) (suppressing evidence obtained “as a direct result” of officers’ illegal presence in defendant’s living room). Compare Teal v. State, 282 Ga. 319, 326-327 (2) (647 SE2d 15) (2007) (where a search warrant issued after an investigator’s illegal entry was based on information gathered before that illegal entry, the evidentiary results of the warrant were admissible under the inevitable discovery exception); Lawson v. State, 299 Ga. App. 865, 869-870 (1), (2) (684 SE2d 1) (2009) (where defendant’s attack on police at his home dissipated any taint of illegality arising from officer’s arguably wrongful intrusion, a protective sweep as well as the seizure of evidence pursuant to a resulting search warrant were legal).

(c) In light of this disposition, which does not affect the evidentiary basis of the 2006 charges at issue in this appeal, we need not decide whether the July 2009 evidence would be admissible as a similar transaction in a new trial on those 2006 charges. We also note that no issue has been presented to us concerning the admissibility of Hargis’s 1997 Arizona conviction for attempted possession of methamphetamine manufacturing equipment.

Judgment reversed and case remanded with direction.

Miller, P. J., and Ray, J., concur.

Nathanael A. Horsley, for appellant.

W Jeffrey Langley, District Attorney, Cathy A. Cox-Brakefield, Assistant District Attorney, for appellee.

       Hargis also contends that the trial court erred when it conducted voir dire outside the presence of Hargis or his counsel, when it took judicial notice of his failure to appear for the February 2009 trial, when it failed to merge certain counts at sentencing, and when it held that trial counsel was not ineffective. These contentions are mooted by our grant of a new trial.

       See Uniform Superior Court Rule 31.3 (B).

       Before her case was severed from Hargis’s, Taylor was represented by a colleague of Hargis’s trial counsel. After Hargis was convicted, he refused to waive a potential conflict arising from these representations. As a result, the trial court replaced Hargis’s trial counsel with appellate counsel.

         At the outset of the hearing on the motion, the State conceded that because Hargis’s 1997 Arizona convictions could not be used in aggravation of his sentence, the maximum sentence for Hargis’s conviction for either conspiracy or attempt to manufacture methamphetamine was 30 years rather than life imprisonment. See OCGA § 16-13-30 (d) (on conviction for “a second or subsequent offense” of possession or manufacture of certain controlled substances, a defendant “shall be imprisoned for not less than ten years nor more than 40 years or life imprisonment”; the provisions of “subsection (a) of” the recidivist statute, OCGA § 17-10-7, concerning out-of-state felony convictions, “shall not apply to a sentence imposed for a second such offense; provided, however, that the remaining provisions” of the same statute “shall apply for any subsequent offense”).

       There was doubt as to whether the prosecutor was present for the communication.

       An inventory search on arrest can occur if it is “reasonably necessary under the circumstances.” Cappellan v. State, 316 Ga. App. 467, 469 (729 SE2d 602) (2012) (reversing denial of motion to suppress drugs found in locked van carried on flatbed wrecker when record contained no evidence about department policy or procedures on inventory searches to support police testimony that it was found during such a search); see also Duvall v. State, 194 Ga. App. 420, 421 (390 SE2d 647) (1990) (police could reasonably impound a vehicle and conduct an inventory search when the vehicle would have otherwise remained unattended in the parking lot of a business). It is undisputed in this case, however, that neither officer seized the items from Hargis’s truck as part of such an inventory search. Only after the officers had inspected the wallet found on the truck’s front seat after Hargis’s arrest, moreover, thus discovering the false identification often used to obtain methamphetamine supplies from area pharmacies, did they suspect that Hargis was again involved in methamphetamine manufacture.


author: BARNES, Presiding Judge.

text:
    A12A1182.
    RAGAN v. MALLOW.
    (744 SE2d 337)
   BARNES, Presiding Judge.

The trial court grante4 the defendant’s motion to dismiss this personal injury case for lack of personal jurisdiction because the defendant was never personally served, although he was served by publication. The court specifically held that service by publication alone is insufficient for the trial court to obtain personal jurisdiction, citing a recent case from this court. The plaintiff appeals, arguing that the trial court erred in dismissing her case because the defendant waived his jurisdictional and service defenses, and erred in failing to determine whether she diligently attempted service and whether the defendant avoided service in bad faith. While we hold that the defendant did not waive his defenses, we hereby overrule prior cases holding incorrectly that service by publication can never confer personal jurisdiction, vacate the order of dismissal, and remand for further proceedings.

Plaintiff Heather Ragan filed suit against defendant Derek J. Mallow on May 27, 2010, alleging that he was liable for injuries she received in a car wreck on June 24, 2008. She served her uninsured motorist carrier and Mallow’s insurer, but an attempt to serve the defendant on June 2, 2010 at the address listed for him on the police report was unsuccessful. On June 28, 2010, the defendant answered the complaint, raising the affirmative defenses of insufficient service, lack of personal jurisdiction, and the running of the statute of limitations. He also filed a separate notice of his intention to offer into evidence at trial the plaintiff’s medical reports in narrative form under OCGA § 24-3-18.

The plaintiff obtained a new address for the defendant from a private investigator, but service on that second address was unsuccessful on August 9, 2010. The defendant filed another answer on August 11,2010, again asserting his affirmative defenses, and moved to dismiss the suit in September 2010 because the statute of limitation had passed without him being personally served. In October 2010, the plaintiff objected to the motion to dismiss and moved the court for permission to serve the defendant by publication. In an attached affidavit, her attorney attested to the plaintiff’s efforts to obtain personal service on the defendant at two different addresses. The attorney further stated that the defendant was not listed in any Georgia telephone registries, that the Department of Motor Vehicles could not “supply any useful information” regarding the defendant’s location, and that attempts to locate the defendant through the Internet had been unsuccessful.

Also attached was an affidavit from the deputy sheriff who attempted service at the second address in August 2010, who stated that “on various attempts to serve Defendant Derek J. Mallow at his residence of . . . Birchfield Drive, Savannah, Georgia, [the deputy] was told by Mr. Mallow’s mother that his lawyer told him to keep dodging the police and not let him get served.” The plaintiff argued in her motion that service by publication was warranted because she had sued the defendant in his county of residence, he had actual knowledge of the suit, and he had wilfully concealed himself to avoid being served.

The defendant objected to the motion for service by publication and filed his own affidavit, averring that he had never avoided service, hidden or concealed himself, attempted to alter his identity or tried to hide his address, and had not left the state since suit was filed in May 2010. He also said that he had moved from the address in the police report in January 2009, that he moved from the second address where his aunt lived in May 2009, and that since then he had lived at his present residence, the address of which was not included in the affidavit.

At a hearing in April 2011 on the defendant’s motion to dismiss, the defendant argued that the plaintiff was not entitled to serve him by publication because, as established by his affidavit, he had not been concealing himself or otherwise avoiding service. The plaintiff responded at the hearing by outlining her attempts to obtain service and noted that she had moved the court for permission to serve the defendant by publication because he was avoiding service. While personal service on the defendant had been unsuccessful, the plaintiff argued, the defendant was not prejudiced because he had received actual notice, had answered the complaint, and had waived his affirmative defenses by filing a notice of his intent to introduce the plaintiff’s medical narratives at trial.

The trial court took the matter under advisement, and three months later the defendant filed a supplemental brief, followed by two supplemental briefs from the plaintiff. Before ruling on the motion to dismiss, however, the trial court granted the plaintiff’s motion for service by publication in August 2011. Although the trial court apparently made no decision about whether the defendant had deliberately avoided service, it noted that the plaintiff relied on OCGA § 9-11-4 (f) (1) (A) and quoted the statute, which provides in relevant part:

When the person on whom service is to be made . . . conceals himself or herself to avoid the service of the summons, and the fact shall appear, by affidavit, to the satisfaction of the judge or the clerk of the court, and it shall appear, either by affidavit or by a verified complaint on file, that a claim exists against the defendant in respect to whom the service is to be made, and that he or she is a necessary or proper party to the action, the judge or clerk may grant an order that the service be made by the publication of summons. . . .

Further, while the court found that the sheriff’s affidavit contained inadmissible hearsay from someone claiming to be the defendant’s mother, it nonetheless considered the affidavit to explain “the conduct of the officer and reliance by counsel for Plaintiff.”

As required by OCGA § 9-11-4 (f) (1) (C), the record includes a copy of the “Notice for Service by Publication” directing the defendant to file an answer to the complaint within 60 days of the order of service by publication and the court clerk’s certificate that she mailed the notice, order, and complaint to the defendant at the Birchfield Drive address on September 7, 2011. Also included is a copy of a certified mail return receipt apparently signed by the defendant on September 28, 2011 at the Birchfield Drive address, at which service had been unsuccessful in August 2009. Finally, the record contains an affidavit dated October 7, 2011 from a clerk at the legal paper of record attesting that the notice had been published, which met the requirements of OCGA § 9-11-4 (f) (1) (C).

The next document in the record is the trial court’s November 2, 2011 order granting the defendant’s motion to dismiss. The court stated that “service by publication alone was insufficient for the trial court to obtain personal jurisdiction,” citing Moreno v. Naylor, 305 Ga. App. 504, 506 (2) (699 SE2d 838) (2010), and then held that the defendant did not waive his affirmative defenses by filing the notice of his intent to introduce medical narratives. The court further held that, because it lacked personal jurisdiction over the defendant, it could not reach the merits of the statute of limitations defense raised in the defendant’s motion to dismiss, but dismissed the case “under OCGA § 9-11-12 (b) (2), (4), and (5) as a matter in abatement without prejudice. South v. Montoya, 244 Ga. App. 52 [(537 SE2d 367)] (2000).”

The plaintiff argues on appeal that the trial court erred in finding that the defendant did not waive his affirmative defenses, and in failing to determine whether the defendant evaded service in bad faith and the plaintiff was diligent in attempting service.

1. The trial court did not err in holding that the defendant did not waive his affirmative defenses by filing a notice of his intent to introduce the plaintiff’s medical narrative. While OCGA § 9-11-12 (h) provides that the defenses may be waived if not included in the answer or contained in a motion to dismiss filed with the answer, once properly raised, they are waived only by “conduct so manifestly indicative of an intention to relinquish a known right or benefit that no other reasonable explanation of its conduct is possible.” Heis v. Young, 226 Ga. App. 739, 740 (3) (487 SE2d 403) (1997); see also Exum v. Melton, 244 Ga. App. 775, 777 (2) (b) (536 SE2d 786) (2000).

In this case, the defendant properly asserted his affirmative defenses in his answer. Filing the notice of his intention to introduce the plaintiff’s medical narratives as required by OCGA § 24-3-18 (a) did not manifest an intention on the defendant’s part to relinquish his defenses, but simply preserved an evidentiary issue should it arise later. Joyner v. Schiess, 236 Ga. App. 316, 318 (512 SE2d 62) (1999) (demands in answer for pretrial conference and jury trial did not waive service defenses, but “served to preserve at an early stage of litigation any rights regarding these possible future events”).

2. The plaintiff also contends that the trial court erred in dismissing her case without deciding whether the defendant acted in bad faith to avoid personal service, “whether the plaintiff exercised the appropriate diligence, and whether any other utilized method of service should be considered valid.” It is clear from the order that the trial court did not make these determinations, so we must vacate the order and remand for the court to do so.

While it is generally true that service by publication does not confer personal jurisdiction on a defendant, a judge may order service by publication if it appears “by affidavit, to the satisfaction of the judge” that a defendant “conceals himself... to avoid the service of the summons.” OCGA § 9-11-4 (f) (1) (A). Service must be properly published as set forth in OCGA § 9-11-4 (f) (1) (C). If the defendant is a resident who is actually present within the jurisdiction of the court, has actual knowledge of the suit, and “wilfully secrets himself in order to frustrate all reasonable efforts to effect personal service,” then the service by publication affords sufficient due process and confers personal jurisdiction over the defendant. Melton v. Johnson, 242 Ga. 400, 403-404 (249 SE2d 82) (1978). See also Hutcheson v. Elizabeth Brennan Antiques & Interiors, 317 Ga. App. 123, 126-127 (1) (730 SE2d 514) (2012) (trial court did not err in ordering service by publication based on evidence defendant was evading personal service, but actual publication invalid because court clerk did not comply with OCGA § 9-11-4 (f) (1) (C)); Green v. Cimafranca, 288 Ga. App. 16, 18 (1) (653 SE2d 782) (2007) (no abuse of discretion in implied finding that plaintiff failed to prove defendant wilfully concealed himself to frustrate personal service); Baxley v. Baldwin, 279 Ga. App. 480, 482 (2) (631 SE2d 506) (2006) (affirming trial court’s finding that facts did not show wilful concealment); Southeastern Security Ins. Co. v. Lowe, 242 Ga. App. 535, 536 (1) (530 SE2d 231) (2000) (service by publication insufficient to confer personal jurisdiction because plaintiff offered no facts showing wilful evasion of personal service).

The trial court relied on Moreno v. Naylor, 305 Ga. App. at 506 (2), as support for the proposition that “service by publication alone is insufficient for the trial court to obtain personal jurisdiction.” To the extent that Moreno and the following cases hold that service by publication is never sufficient to confer personal jurisdiction against any defendant, they are overruled: Brasile v. Beck, 312 Ga. App. 77, 78 (2) (717 SE2d 677) (2011); Long v. Bellamy, 296 Ga. App. 263, 267 (1) (c) (674 SE2d 120) (2009); State Farm Mut. Auto. Ins. Co. v. Manders, 292 Ga. App. 793, 794 (1) (665 SE2d 886) (2008); Wyatt v. House, 287 Ga. App. 739, 740 (2) (652 SE2d 627) (2007); Costello v. Bothers, 278 Ga. App. 750, 752 (2) (629 SE2d 599) (2006); Patel v. Sanders, 277 Ga. App. 152, 154 (2) (626 SE2d 145) (2006); Cohen v. Allstate Ins. Co., 277 Ga. App. 437, 438 (626 SE2d 628) (2006); Williams v. Jackson, 273 Ga. App. 207, 209 (614 SE2d 828) (2005); Saxton v. Davis, 262 Ga. App. 72 (584 SE2d 683) (2003); Hawkins v. Wilbanks, 248 Ga. App. 264, 265 (546 SE2d 33) (2001); Wilson v. State Farm Mut. Auto. Ins. Co., 239 Ga. App. 168, 172 (520 SE2d 917) (1999); Winters v. Goins, 235 Ga. App. 558, 560 (2) (509 SE2d 361) (1998); Bailey v. Lawrence, 235 Ga. App. 73 (508 SE2d 450) (1998); Smith v. Johnson, 209 Ga. App. 305, 306 (1) (433 SE2d 404) (1993); Douglas v. Woon, 205 Ga. App. 355, 356 (1) (422 SE2d 61) (1992); Starr v. Wimbush, 201 Ga. App. 280, 282 (2) (410 SE2d 776) (1991); and Norman v. Daniels, 142 Ga. App. 456, 459 (2) (a) (236 SE2d 121) (1977).

Decided December 14, 2012.

Scheer & Montgomery, Steven E. Scheer, Craig A. Call, for appellant.

Worsham, Cor si, Scott & Knighten, Hugh M. Worsham, Jr., for appellee.

In this case, the trial court granted the plaintiff’s motion for service by publication, the defendant was served by publication, and then the trial court granted the defendant’s motion to dismiss without determining whether the service by publication was sufficient to confer personal jurisdiction over the defendant.

Accordingly, we vacate the trial court’s order of dismissal and remand this case to the trial court for further proceedings consistent with this opinion.

Judgment vacated and case remanded.

Miller; P. J., Doyle, P. J., Andrews, Adams, Dillard, McFadden, Boggs, Ray, and Branch, JJ., concur. Ellington, C. J., and Phipps, P. J., concur in judgment only.

       We note that, as of January 1, 2013, this statute will stand repealed when the new Evidence Code becomes effective.

       Plaintiff stated at the motion hearing and again in her appellate brief that she did not intend to imply that defense counsel in this case had advised the defendant to avoid service, speculating that such advice might have come from the defendant’s criminal defense lawyer.


author: Boggs, Judge. DOYLE, Presiding Judge,

text:
    A12A1649.
    TEELE v. THE STATE.
    (738 SE2d 277)
   Boggs, Judge.

A jury found Anjoure Charnel Teele guilty of armed robbery. Following the denial of her motion for new trial, Teele appeals, challenging the sufficiency of the evidence. She also contends that the trial court erred by admitting her statement to the police and by excluding testimony regarding her co-defendant’s prior sworn statement. For the following reasons, we affirm.

Construed in favor of the verdict, the record shows that on January 6, 2011, a man, later identified as Michael Anthony Williams, approached the victim at a gas station and inquired about purchasing some jewelry from him. The victim did not have the items with him, so he showed Williams a photograph of them and gave him his phone number. That night, Williams called the victim, and they arranged to meet at an intersection in the victim’s neighborhood so that Williams’ girlfriend Teele could examine the jewelry.

The victim met Williams and Teele at the arranged location; Teele was driving a red Dodge Neon, with Williams sitting in the front passenger seat. The victim got into the back seat of the vehicle, retrieved a necklace from his backpack, and handed it to Williams. As the victim was returning the necklace to his bag, Williams pointed a gun at him, grabbed his backpack, and threatened to shoot him if he did not “leave everything.” The victim got out of the vehicle and started running. Williams got out of the vehicle, walked around to the front of the vehicle, pointed the gun at the victim again, and threatened him. The victim ran faster, hid behind a car, and watched Williams and Teele drive away. According to the victim, Teele sat in the driver’s seat of the car during the entire exchange, looking forward and remaining silent. And Teele “appear [ed] to wait for [Williams] so that he could get back in the vehicle.”

The victim called police from his cell phone, and the dispatcher sent out the location of the robbery, a description of the two assailants, including their sex and race, as well as a description of a red Dodge Neon. An officer spotted the vehicle with the two occupants matching the dispatch description, and followed it to a parking lot in an apartment complex. After the officer activated his blue lights, the male passenger got out of the car and ran.

Because back-up officers had not yet arrived, the officer pulled out his gun when he approached Teele, who was still seated in the driver’s seat. The officer testified that he held her at gunpoint because he was concerned for his safety. She initially refused his commands to get out of the vehicle, but complied after the officer “said it a couple more times.” She also refused to get on the ground, claiming that she was pregnant. The officer explained to Teele, “You have to get on the ground[ ] because I don’t know if you have a gun. I can’t see anything.” Teele then complied with the officer’s request, and he held “her at gunpoint on the ground until [his] second unit g[o]t there.”

Once back-up arrived, the officer handcuffed Teele, stood her up, placed her in the back seat of his patrol car, and advised her that she was being detained for an investigation and that she was not under arrest. He then asked Teele for the name of her passenger, and she indicated that she did not know. The officer told her “she was full of it,” to which Teele responded that “she just picked [Williams] up.” When Teele refused to give the officer her own name, he told her that “she need[ed] to think about it because she’s going to go down for really bad charges,” and closed the patrol car door. When the officer returned to the vehicle after an unknown period of time, Teele gave the officer her name and date of birth.

The police then ran Teele’s name and birth date through the computer and determined her address, which was an apartment in the same complex. Police knocked on the apartment door, and Williams answered. An officer asked Williams to step outside for questioning, and Williams complied, stating that, “It was me, not her.” Williams was then secured in handcuffs.

At some point during the investigation, officers removed Teele’s handcuffs and asked her to stand at the back of the patrol car while another officer drove the victim by in a patrol car; the victim identified Teele as the woman in the car during the robbery. Following the victim’s positive identification, Teele was arrested.

Teele was charged with armed robbery, and Williams was charged with armed robbery, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. Williams entered a guilty plea and testified on Teele’s behalf at trial. Williams stated that he took Teele, who was his live-in girlfriend, to meet the victim, intending to purchase the jewelry from him. According to Williams, the victim “got rude” when he asked for a bill of sale for the necklace, and Williams felt like the victim “was trying to play [him] on the jewelry.” Williams then drew his weapon, pointed it at the victim’s chest, grabbed the backpack, and the victim fled. Williams testified that Teele had nothing to do with the robbery and “it wasn’t planned to go down like that.”

1. (a) Teele argues that the evidence was insufficient to enable a rational trier of fact to find her guilty beyond a reasonable doubt of armed robbery. We disagree. When reviewing the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

(Citations omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

Teele argues that other than driving the vehicle, she took no steps in furtherance of the robbery. She also contends that the robbery was not planned and that she did not know that Williams had a gun. These arguments do not require reversal.

OCGA § 16-2-21 provides: “Any party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that he was a party thereto.”

A participant to a crime may be convicted although he is not the person who directly commits the crime. A person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime. Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime.

(Citation omitted.) Burks v. State, 268 Ga. 504, 505 (491 SE2d 368) (1997).

While Teele may not have had a gun, she drove the car and remained in the vehicle while Williams took the victim’s backpack at gunpoint. After the armed robbery had occurred, Teele appeared to wait for Williams to return to the vehicle before driving away. Whether Teele was a party to the crime and aided and abetted Williams was a jury question, and the jury rejected Teele’s argument and Williams’ testimony that Teele had no knowledge of the robbery and was merely driving the car. See Jordan v. State, 281 Ga. App. 419, 422 (1) (636 SE2d 151) (2006). Under these circumstances, the evidence was sufficient to support the jury’s verdict. Id.; Buruca v. State, 278 Ga. App. 650, 652 (1) (629 SE2d 438) (2006).

(b) Teele also argues that the verdict was “strongly against the weight of the evidence,” citing OCGA §§ 5-5-20 and 5-5-21. “However, such an argument may only be made to a trial court in a motion for new trial and not to this Court on appeal[,] and we have no discretion to grant a new trial based on such a claim.” (Citation and punctuation omitted.) Overstreet v. State, 304 Ga. App. 275, 276 (1) (696 SE2d 114) (2010).

2. Teele contends that the trial court erred by allowing the admission of her statement to police that she had just picked up Williams, because the statement was made while she was in custody and she was not advised of her rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

When we review a trial court’s decision on such motions to exclude evidence, we construe the evidence most favorably to uphold the findings and judgment, and we adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. When the evidence is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citation and punctuation omitted.) Hesrick v. State, 308 Ga. App. 363 (707 SE2d 574) (2011).

The officer testified that after he advised Teele that she was being detained for an investigation and not under arrest, he asked her for the name of her passenger, and she indicated that she did not know. When the officer told Teele she “was full of it,” Teele responded that “she just picked [Williams] up.” When Teele refused to give the officer her own name, the officer told her that “she need[ed] to think about it because she’s going to go down for really bad charges,” and put her in the patrol car. The trial court ruled:

I think the question was appropriate to the circumstances of trying to — you’re making a stop here, someone is fleeing, the police are trying to catch that person. Who is that guy, is essentially . . . but, who is that guy, is essentially what was asked for purposes of trying to detain him to further investigate. So, you know, regardless of what the defendant said in response to that question, I think the question is proper. Under the circumstances, no Miranda is required.

“Voluntary statements made by unwarned suspects in custodial interrogation are presumed to be compulsory and are inadmissible at trial. . . . Therefore, to make a proper case for suppression, [Teele] must show both that [she] was in custody and that [she] was subj ected to interrogation.” (Citation and punctuation omitted.) Waters v. State, 281 Ga. 119, 121 (4) (636 SE2d 538) (2006), citing Oregon v. Elstad, 470 U. S. 298, 307 (105 SC 1285, 84 LE2d 222) (1985).

(a) We first address whether Teele was in custody at the time she made her statement. “In determining whether a suspect was in custody for Miranda purposes, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” (Punctuation omitted.) State v. Wintker, 223 Ga. App. 65, 66 (476 SE2d 835) (1996). “Whether a custodial situation exists does not depend upon the subjective views harbored by either the interrogating officers or the person being questioned.” (Punctuation omitted.) Hightower v. State, 272 Ga. 42, 43 (2) (526 SE2d 836) (2000). Instead, “[t]he only relevant inquiry is how a reasonable [person] in the suspect’s position would have understood [the] situation.” Id.

Here, Teele was approached at gunpoint, ordered to lie on the ground, handcuffed, and placed in the back seat of a marked patrol car. Under these circumstances, “a reasonable person in [Teele’s] position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.” Wintker, supra, 223 Ga. App. at 67. See also Waters, supra, 281 Ga. at 121 (4) (suspect was in custody where he was approached at gunpoint, handcuffed, and placed on ground while guarded by three officers).

(b) Next, we must address whether the officer was interrogating Teele when she made the statement sought to be excluded. “The issue of whether a statement was the result of an interrogation or was instead volunteered is a determination of fact for the trial court, and it will not be disturbed unless it is clearly erroneous.” (Citation omitted.) Velazquez v. State, 282 Ga. 871, 877 (8) (655 SE2d 806) (2008).

Interrogation is defined as “express questioning by law enforcement officers or ‘any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ ” (Citations, punctuation and footnote omitted; emphasis supplied.) Cook v. State, 270 Ga. 820, 825 (2) (514 SE2d 657) (1999). Here, the officer simply asked Teele the name of her passenger in order to obtain the identity of the person the officer observed fleeing the vehicle and who was suspected in an armed robbery. The officer’s single, nonaccusatory question to Teele was to assist officers’ on-the-scene investigation into an armed robbery that had occurred only minutes earlier, and aid in the capture of a potentially armed and dangerous suspect. The fact that Teele gave a nonresponsive incriminating statement does not establish that the officer reasonably knew his statement was likely to elicit such a response. See, e.g., Gonzalez v. State, 277 Ga. App. 362, 365-366 (2) (626 SE2d 569) (2006) (officer would not have known that remark to other officer concerning material on defendant’s shoes would elicit incriminating response that accomplice hit victim; response was spontaneous).

The dissent is correct that “[t]he focus of whether ‘interrogation’ occurs is primarily upon the perceptions of the suspect and not the intent of the officer, although the officer’s intent is relevant.” (Citation omitted.) Franks v. State, 268 Ga. 238, 240 (486 SE2d 594) (1997). “This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.” (Citations and punctuation omitted.) Id. But while the focus of whether an interrogation occurs is primarily upon the perceptions of the suspect, that focus is not determinative. Contrary to the dissent’s conclusion, under the totality of the circumstances here, a reasonable person in Teele’s position would have believed that the officer’s threshold inquiry into the name of her passenger was to assist officers in locating him, not to elicit an incriminating response from her. The officer’s question asking the name of Teele’s passenger is simply not the type of questioning Miranda safeguards were designed to protect against.

The trial court did not clearly err here in concluding that the officer’s question to Teele concerning the name of her passenger was asked for the “purposes of trying to detain [Williams] to further investigate” and was not an interrogation. See Bone v. State, 311 Ga. App. 390, 392 (1) (715 SE2d 789) (2011) (affirming trial court’s denial of motion to suppress where evidence supported trial court’s finding of fact that there was no interrogation). We therefore affirm the trial court’s ruling as Teele’s volunteered statement does not implicate Miranda. Cf. United States v. Schulz, 486 Fed. Appx. 838, 840 (I) (11th Cir. 2012) (unpublished).

3. In her remaining enumeration, Teele contends that the trial court erred in sustaining the State’s objection to trial counsel’s planned line of questioning to Williams. Teele planned to point out to the jury that the prosecutor failed to ask Williams questions during his guilty plea hearing that would tend to exonerate her or mitigate her involvement. The State objected that any such questions were not relevant, and the trial court agreed.

Even if we were to assume that the trial court somehow erred in not allowing Teele’s planned line of questioning, we find no harm here. Williams testified at trial on Teele’s behalf and stated that he told police that Teele “didn’t have nothing to do with it.” Moreover, similar statements were included in a police report admitted into evidence by a stipulation between the parties. This report included Williams’ statements that he “did it all,” and “[i]t was all me.” Teele’s claim of error here is therefore without merit. See Hammond v. State, 237 Ga. App. 238, 239-240 (3) (515 SE2d 183) (1999) (no harm in excluding evidence that was cumulative of other evidence presented).

Judgment affirmed.

Ellington, C. J., Barnes, P. J., Andrews and Dillard, JJ., concur. Phipps, P. J., and Doyle, P. J., concur in part and dissent in part.

DOYLE, Presiding Judge,

concurring in part and dissenting in part.

I respectfully dissent to paragraph (b) of Division 2 because I believe that Teele’s in-custody statement that she had just picked up Williams was made in response to interrogation by the officer, and therefore, his failure to advise her of her rights under Miranda v. Arizona required suppression of her statement.

“The Fifth Amendment requires the exclusion of any statement made by an accused during custodial interrogation, unless [she] has been advised of [her] rights and has voluntarily waived those rights.”9 In determining whether under the totality of the circumstances an officer’s question constitutes an interrogation,

[rjelevant factors include the context in which the question was asked, the officer’s intention in asking the question, and the relationship of the question to the crime.... The focus of whether interrogation occurs is primarily upon the perceptions of the suspect and not the intent of the officer, although the officer’s intent is relevant. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.

Viewed in favor of the trial court’s findings, the record shows that the officer heard a dispatch regarding a robbery, which dispatch included a description of the vehicle and two suspects, one male and one female. The officer spotted the vehicle matching the dispatch description, followed the vehicle to a parking lot, and activated his blue lights, at which point the male suspect exited the car and fled. The officer then approached the female driver — Teele — at gunpoint and repeatedly ordered her to exit the car and lie on the ground. Teele initially refused and protested that she was pregnant, but ultimately complied. After backup arrived, the officer handcuffed Teele, stood her up, told her she was being detained for investigative purposes, and put her in the back of the patrol car. Then, after first speaking with other members of law enforcement, including directing their search efforts, the officer returned to the patrol car and asked Teele to identify her passenger. Teele responded that she did not know the man. The officer, who testified at the suppression hearing that he thought she was lying, told Teele that “she was full of it” and repeated the question, at which point Teele stated that she “just picked him up.”

Under these circumstances, the officer should have known that asking Teele, who matched the description of one of the armed robbers, to identify the other fleeing suspect was likely to elicit an incriminating response, regardless of whether he intended to elicit such information. Furthermore, the information sought was directly related to the armed robbery and Teele’s knowledge of the other suspect’s identity, thereby establishing her relationship to him. Based on these circumstances, a reasonable person in Teele’s situation would have believed she was being interrogated.

Decided December 14, 2012

G. Richard Stepp, for appellant.

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

Considering the context of the questioning, the officer’s intent, and the relationship of the questioning to the crime, I conclude that Teele was “subjected to ‘interrogation’ in violation of [her] Fifth Amendment right against self-incrimination. While [I] do not lightly substitute [my] judgment for that of the trial court, [I] conclude that the trial court’s finding otherwise was clearly erroneous.”

I further conclude that “there is a reasonable possibility that the improperly admitted evidence contributed to the conviction.” Although Teele’s statement was not a direct confession, her representation to the police that she had just picked up the passenger was contradicted by the evidence at trial that he was her boyfriend. The State argued to the jury that Teele’s deceptive statement to the police established that she was a party to the robbery, thereby relying on it to obtain a guilty verdict. Furthermore, the record reflects that the jury deliberated for some time after the jury charges and then elected to return the following day to continue deliberations. The jury also requested direction on several issues, including explanations of reasonable doubt and party to a crime. Thus, I “conclude that there is a reasonable possibility that the improperly admitted evidence contributed to the jury’s verdict,” and I would reverse.

I am authorized to state that Presiding Judge Phipps joins in this dissent.

       The officer testified that his conversations with Teele took place within five minutes after activating his blue lights.

       The jury was charged on this Code section.

       OCGA § 5-5-20 provides: “In any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity, the judge presiding may grant a new trial before another jury.”

       OCGA § 5-5-21 provides: “The presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.”

       While the officer’s testimony at trial concerning this colloquy differed somewhat from his testimony at the Jackson-Dermo hearing, it does not affect our analysis as we must construe the evidence most favorably to the trial court’s findings. See Souder v. State, 301 Ga. App. 348, 350, n. 3 (687 SE2d 594) (2009), citing Bowens v. State, 276 Ga. App. 520, 521 (623 SE2d 677) (2005).

       With regard to the admissibility of Teele’s statements, both the State and Teele confine their arguments on appeal to the issue of whether she was in custody at the time she made them. Our review of the transcript, however, shows that the trial court concluded that Teele was not interrogated.

       As an aside, we note that the United States Supreme Court has recently addressed questioning by officers in the context of the Confrontation Clause. Michigan v. Bryant,_U. S. _(131 SC 1143, 179 LE2d 93) (2011). The high court noted, in analyzing the evolution of nontestimonial statements into testimonial, that trial courts can determine when this transition occurs: “[J]ust as, for Fifth Amendment purposes, police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect,... trial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial.” (Citations and punctuation omitted.) Id. at 1160 (III) (B), n. 10. This comports with our standard of review in which we will reverse the trial court only in a case of clear error.

       We note that the officer also asked Teele her name. “A police officer’s request for a suspect’s name . . . does not constitute custodial interrogation.” (Citations and punctuation omitted.) Nickerson v. State, 248 Ga. App. 829, 833 (2) (c) (545 SE2d 587) (2001).

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

        Franks v. State, 268 Ga. 238, 239 (486 SE2d 594) (1997).

       (Citations and punctuation omitted; emphasis supplied.) Id. at 240. The officer’s question regarding Williams’s identity does not fall within the booking exception to the Miranda rule set forth in Pennsylvania v. Muniz, 496 U. S. 582, 601 (III) (C) (110 SC 2638, 110 LE2d 528) (1990), because the question has no relation to a legitimate administrative need to glean information to book Teele. See Franks, 268 Ga. at 241.

       See Bowens v. State, 276 Ga. App. 520, 521 (623 SE2d 677) (2005).

       See Wells v. State, 297 Ga. App. 153, 164 (3) (c) (676 SE2d 821) (2009).

       (Punctuation and footnote omitted.) Id. at 164-165 (3) (c).

       (Punctuation omitted.) Thompson v. State, 313 Ga. App. 844, 848 (1) (723 SE2d 85) (2012).

       Id. at 849 (1). See also Vaughn v. State, 248 Ga. 127, 131-132 (2) (281 SE2d 594) (1981). Compare Dailey v. State, 313 Ga. App. 809, 816-817 (1) (723 SE2d 43) (2012) (admission of the defendant’s custodial statement was harmless because it was cumulative of other evidence and did not contribute to the verdict).


author: Adams, Judge.

text:
    A12A1896.
    A12A1897.
    In the Interest of S. C., a child. In the Interest of L. R., a child.
    (735 SE2d 587)
   Adams, Judge.

S. C. and L. R. appeal from Orders of Commitment issued by the juvenile court adjudicating them guilty of certain designated felonies. On appeal, S. C. and L. R. assert that the evidence was insufficient to support the juvenile court’s adjudications of delinquency because the rulings were based solely upon hearsay evidence. The State concedes that the evidence was insufficient on this ground to support the juvenile court’s judgments, and we accordingly reverse.

Complaints filed in the juvenile court charged both S. C. andL.R. with participation in street gang activity (OCGA § 16-15-4), discharging a firearm on a public street (OCGA § 16-11-103), and reckless conduct (OCGA § 16-5-60). In addition, S. C. was charged with criminal damage to property (OCGA § 16-7-23), and L. R. was charged with criminal damage to property in the first degree (OCGA § 16-7-22). At the hearing concerning the complaints against both S. C. and L. R., the State’s only witness was an investigator in gang investigations with the Valdosta Police Department. Over numerous hearsay objections from defense counsel, the trial court allowed the investigator to testify as to the events underlying the charges, as related to him by third parties. Based upon this testimony, the trial court adjudicated both S. C. and L. R. “guilty, at least [of] the designated felony.” In the Order of Commitment relating to S. C., the juvenile court found that he committed the “Designated Felony Act[s]” of participation in street gang activity and criminal damage to property. And in the order pertaining to L. R., the juvenile court found that he committed the “Designated Felony Act[s]” of criminal damage to property in the first degree and participation in street gang activity. They were each ordered confined for 17 months, at which time they would both be 18.

As the State concedes, the trial court erred in adjudicating S. C. and L. R. based upon the investigator’s hearsay testimony. Because hearsay evidence has no probative value, a juvenile court’s adjudication of delinquency based solely on hearsay will not stand. In the Interest of E. C., 311 Ga. App. 549, 551 (2) (716 SE2d 601) (2011). See also Germany v. State, 235 Ga. 836, 840 (2) (221 SE2d 817) (1976) (hearsay statements offered to explain investigating officer’s conduct cannot be used as original evidence to establish defendant’s guilt). Consequently, the evidence was insufficient to support the adjudications of delinquency in these cases, and the juvenile court’s judgments must be reversed.

Judgments reversed.

Barnes, P. J., and McFadden, J., concur.

Decided December 14, 2012.

Wade N. Krueger, for appellant (case no. A12A1896).

Jason H. Davis, for appellant (case no. A12A1897).

J. David Miller, District Attorney, Laura A. Wood, Jessica W Clark, Meredith G. Brasher, Assistant District Attorneys, for appellee.