author: Boggs, Judge. RICKMAN, Judge,

text:
    A16A0519.
    SMITH v. THE STATE.
    (789 SE2d 291)
   Boggs, Judge.

In the second appearance of this case before this court, Jason Smith appeals from his conviction of driving with a blood alcohol level of 0.08 grams or more in violation of OCGA § 40-6-391 (a) (5) (DUI per se). Smith contends that we must once again remand this case to the trial court for entry of an order with adequately supported factual findings and the correct balancing of the four speedy trial factors outlined in Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972). He asserts in the alternative that we should conclude that the trial court erred by failing to grant his motion for an acquittal based upon a violation of his federal and state constitutional rights to a speedy trial. For the reasons explained below, Supreme Court of Georgia precedent requires us to vacate the trial court’s order denying Smith’s motion for discharge and acquittal and remand this case again to the trial court.

The record shows that on May 5, 2007, Smith was arrested for DUI less safe and DUI per se following an accident on an interstate highway He was convicted of DUI per se in a bench trial on June 1, 2012, five years and twenty-eight days later. Smith was not incarcerated during this time period as he was released on bond the day after this arrest.

Following his arrest, Smith was instructed to appear in the City of Atlanta Municipal Court on May 7, 2007. According to representations of the State during the hearing on the motion for discharge and acquittal, the case remained in municipal court through February 2008, at which time it was transferred to Fulton County State Court. The State asserted that some of the transfer delay was “for the defense to review the video; for the defense to consider the offer; not within the defense’s control, but I believe there was a family member that was ill.” We cannot determine from the record before us whether Smith was represented by counsel while the case was pending in municipal court.

On August 13, 2008, 15 months after Smith’s arrest, the State filed an accusation against him charging him with DUI less safe and DUI per se. On October 2, 2008, Smith’s counsel filed various motions seeking discovery from the State, including source code information for the Intoxilyzer 5000 machine that was used to test his breath on the day of his arrest.

The case appeared on a bench trial calendar published on November 13, 2008, but there was no date for the trial specified. According to the parties, the case was “reset” because Smith did not waive his right to a jury trial. The State had not yet responded to Smith’s discovery requests at the time this bench trial notice was issued. On the same day the notice was published, Smith filed a motion asking that the clerk be ordered to release his surety under OCGA § 17-6-31 (e) because the State had failed to try him within one year after he posted bond on his misdemeanor arrest (May 2007). The trial court granted this motion on December 2, 2008.

On January 5, 2009, Smith’s counsel filed a request for leave of absence for a series of 12 dates from February through June 2009. The reason for one request was a seminar, and the remaining eleven were for unspecified personal leave.

On March 4, 2009, the case was placed on jury trial calendar beginning Monday, May 4, 2009. We cannot determine from the record before us whether the leave of absence requests delayed the scheduling of trial between the previous November 2008 bench trial notice and the first jury trial date of May 4,2009. At the time the court scheduled the jury trial, however, it still had not ruled upon the motion filed by Smith five months earlier requesting an order determining the relevance and materiality of the source code.

On April 23, 2009, eleven days before the first scheduled jury trial date and over six months after Smith’s request, the State filed a response to Smith’s discovery requests and produced a witness list, a copy of the accusation and uniform traffic citations, a copy of the incident report concerning his arrest, and a copy of the intoxilyzer slip. According to the State, the case was not reached on the May jury trial calendar. There is no evidence that Smith sought a continuance of the case on that date for any reason.

Between May 2009 and August 31, 2011, the case was not scheduled for trial, and the trial court still had not ruled upon Smith’s motion for an order determining the source code to be material and relevant. We cannot determine from the record before us whether the leaves of absence requests during this time frame resulted in the case not being placed on a trial calendar for approximately 15 months.

On August 31, 2011, the case was set on a trial calendar beginning Thursday, September 22, 2011. On September 9, 2011, defense counsel attempted to serve a subpoena upon CMI, Inc., in Kentucky seeking production of source code information at the trial scheduled for September 22, 2011. On the same day as the scheduled September trial, Smith filed a request for issuance of an out-of-state subpoena to CMI, Inc., along with a proffer of the need for source code evidence, which included a copy of an expert witness affidavit submitted in an unrelated criminal case. We cannot determine from the record why the case was not tried on this date, but the trial court had still not ruled upon Smith’s motion seeking a determination that the source code was material and relevant.

On October 6, 2011, the trial court issued an order finding the source code evidence material and granted Smith’s request for a certificate of materiality under former OCGA § 24-10-94. This order was issued over three years after Smith had first sought such a determination from the trial court.

The record does not show when Smith first petitioned a Kentucky court to obtain a subpoena directing CMI to appear in Georgia. It does show, however, that on February 17, 2012, a Kentucky Circuit Court judge signed a consolidated protective order allowing source code access to criminal defendants and their attorneys and expert witnesses, as well as court personnel. Numerous petitioners were listed on the protective order, including Jason Smith. A few days later, the Kentucky trial court issued an order denying Smith’s request for a subpoena of source code information, concluding that the various orders issued by Georgia courts were defective on their face and authorized the disclosure of information that was not “material” or “necessary” On March 16, 2012, Smith, as well as other petitioners, filed a notice of appeal with the Kentucky Court of Appeals.

During the time that Smith attempted to obtain the source code in Kentucky after receiving a ruling from the trial court in October 2011, his case appeared on two trial calendars. According to the State, the case “was tabled several times while we waited to hear the outcome.” While Smith’s counsel also filed leaves of absence during this time period, we cannot determine whether they may have had any impact on the scheduling of the case for trial, particularly in light of the State’s representation that this case was tabled.

Smith was tried on June 1, 2012, while his Kentucky appeal was pending. On the day of trial, he asserted his constitutional right to a speedy trial for the first time. Defense counsel also asked the trial court to exclude the breath test because he had not yet been able to obtain the source code. In the alternative, he asked the trial court to “reset this case to allow us to go do the source,” presumably after an anticipated favorable ruling by the Kentucky Court of Appeals. The trial court denied Smith’s motion to exclude the breath test and the request for a reset. It later ruled from the bench during the middle of trial that Smith’s motion for discharge and acquittal was denied. In Smith v. State, 325 Ga. App. 405 (750 SE2d 758) (2013) (Smith I), this court concluded sufficient evidence supported Smith’s conviction. We also determined that the trial court did not err by denying Smith’s request for a continuance until after a Kentucky appellate court resolved his appeal of the Kentucky trial court’s order denying his request to compel out-of-state witnesses to testify about the source code for the Intoxilyzer 5000. Id. at 410 (4). Finally, we remanded the case to the trial court “for entry of a proper order addressing the speedy trial motion pursuant to Barker v. Wingo.” Id. at 411 (5).

The trial court then issued the following order on January 13, 2015:

The above-styled action came before the Honorable Court for hearing on June 1, 2012 [the trial date] on Defendant’s MOTION FOR DISCHARGE AND ACQUITTAL. After hearing the evidence and arguments of counsel for both parties, and upon consideration and evaluation of Defendant’s constitutional speedy-trial claims according to the four-part test established in Barker v. Wingo, [supra], the Court denied Defendant’s said motion. Consistent with Higgenbottom v. State, 288 Ga. 429 [(]704 SE2d 786[)] (2011), the Court hereby sets forth its findings of fact and conclusions of law as follows:
1. Length of delay. The Defendant was arrested on May 5, 2007 and his instant Motion was heard by the Court on June 1,2012. The Court finds that a delay of five years in this case is presumptively prejudicial. Accordingly, the Court must analyze the other three Barker factors to determine if Defendant’s constitutional right to a speedy trial was denied.
2. Reason for delay. The court finds that the reason for the delay rests primarily with the Defendant. At the pretrial stage, Defendant had sought discovery of proprietary source code information from the maker of the Intoxilyzer 5000 machine used in this case, CMI, Inc., a Kentucky corporation. The delay resulted from Defendant’s efforts to compel production of such source code information via motions filed with and hearings held in this Court as well as in the Kentucky court to compel CMI, Inc.’s production of the requested information. Having been unsuccessful in his motions to compel the production, Defendant then sought appellate review which resulted in additional delay. The Court further finds that the State lacked access to the source code information and did not otherwise contribute to the delay.
3. Defendant’s assertion of his right to a speedy trial. The Court finds that Defendant did not demand a speedy trial or assert his right to a speedy trial during the period between his arrest and the hearing on the instant motion, at which time he finally asserted his constitutional right to a speedy trial. Accordingly, this delay in asserting his right to a speedy trial must be weighed against Defendant.
4. Prejudice to the Defendant. As to oppressive pre-trial incarceration, the Court finds that such factor is not at issue in this case as Defendant was released from jail soon after his arrest and had been free on bond since his release. As to minimizing anxiety and concern of the Defendant, the Court finds that “anxiety and concern ... is always present to some extent, and thus absent some unusual showing is not likely to be determinative in defendant’s favor.” Weems v. State, 310 Ga. App. 590 [(]714 SE2d 119[)] (2011). Here, the Court finds that Defendant failed to present evidence that he suffered undue or unusual anxiety. Furthermore, the Court finds that the Defendant’s ability to defend the charges has not been impaired by the delay
Having weighed and considered the Barker factors as set forth above, the Court hereby DENIES Defendant’s Motion for Discharge and Acquittal.

1. We now determine whether Supreme Court precedent requires us to remand this case to the trial court to consider again whether Smith was denied his right to a speedy trial. See, e.g., State v. Johnson, 291 Ga. 863, 868 (3) (734 SE2d 12) (2012).

Both the Sixth Amendment of the United States Constitution and the Georgia Constitution provide that criminal defendants shall have the right to a speedy trial. See Brewington v. State, 288 Ga. 520, 520 (1) (705 SE2d 660) (2011). When analyzing a constitutional speedy trial claim, this court must first determine “whether the interval from the accused’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered ‘presumptively prejudicial.’ If not, the speedy trial claim fails at the threshold.” (Citations and punctuation omitted.) Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008). If, however, the delay is presumptively prejudicial, the defendant’s claim is then analyzed under the rubric of Barker, which established a four-part balancing test to consider:

(1) the length of the delay; (2) reasons for the delay; (3) defendant’s assertion of the right to speedy trial; and (4) the prejudice to the defendant. Standing alone, none of these factors are a necessary, or sufficient condition to a finding of deprivation of the right to a speedy trial, but rather should be considered as part of a balancing test.

(Citations and punctuation omitted.) Bowling v. State, 285 Ga. 43, 44 (1) (673 SE2d 194) (2009).

“In Georgia, the application of these principles to the circumstances of a particular case is a task committed principally to the discretion of the trial courts, and it is settled law that our role as a court of review is a limited one.” (Citations and footnote omitted.) State v. Buckner, 292 Ga. 390, 391 (738 SE2d 65) (2013). Therefore,

we must accept the factual findings of the trial court unless they are clearly erroneous, and we must accept the ultimate conclusion of the trial court unless it amounts to an abuse of discretion, even though we might have reached a different conclusion were the issue committed to our discretion.

(Citation omitted.) Id.

(a) Length of Delay. While the trial court properly concluded that the five-year delay between Smith’s arrest and trial was presumptively prejudicial, it failed to consider the length of the delay for a second time “as one of the four interrelated criteria that must be weighted in the balance at the second stage of the . . . analysis.” (Citation and punctuation omitted; emphasis supplied.) Stewart v. State, 310 Ga. App. 551, 553 (2) (a) (713 SE2d 708) (2011). And it did not assign weight for this uncommonly long delay Id. at 554.

(b) Reasons and Responsibility for the Delay. “The second factor in the Barker-Doggett analysis requires the court to examine both the reason for the delay and whether this is attributable to the defendant or the state.” (Citation and punctuation omitted.) Thomas v. State, 331 Ga. App. 641, 661-662 (8) (b) (ii) (771 SE2d 255) (2015).

This factor, which examines whether the defendant or the State bears more responsibility for the delay, is “pivotal in evaluating the strength of a constitutional speedy trial claim, as it can color the consideration of all other factors.” Deliberate delay intended to hinder the defense must be weighed heavily against the State, whereas delay occasioned by more “neutral” causes, such as negligence or overcrowded dockets, weighs less heavily against the State. On the other hand, delay caused by the defense weighs against the defendant.

(Citations omitted.) Phan v. State, 290 Ga. 588, 593 (1) (b) (723 SE2d 876) (2012).

In its order, the trial court concluded that “the reason for the delay rests primarily with the Defendant” based upon his efforts to obtain the source code. It also found that “the State lacked access to the source code information and did not otherwise contribute to the delay.” The trial court did not break down the overall pre-trial delay into relevant time periods and assign responsibility for delay to each time period. Nor did it conclude whether the delay should be weighed heavily, slightly, or neutrally against Smith. “Because of the procedural complexity of this case, the trial court could not have exercised its discretion properly under the Barker test without doing so.” Thomas, supra, 331 Ga. App. at 662 (8) (b) (ii).

For example, the trial court did not consider the 15-month delay between Smith’s May 7, 2007 arrest and the filing of an accusation by the State on August 13, 2008, the impact, if any, of the numerous leave of absence requests filed by defense counsel, the reasons why the State took six months to respond to Smith’s request for reciprocal discovery, its three-year delay in ruling on Smith’s request for a finding that the source code was material and relevant, why the case appeared on no trial calendars between May 2009 and August 2011, and whether defense counsel’s efforts to obtain the source code were diligent and timely. When considering these time periods, the trial court should bear in mind that “[b]ecause the attorney is the defendant’s agent when acting, or failing to act, in furtherance of the litigation, delay caused by the defendant’s counsel ... is charged against the defendant.” (Citation and punctuation omitted.) Thomas, supra, 331 Ga. App. at 664 (8) (b) (ii), n. 33. However, the “filing of numerous motions does not automatically mean that any associated delay should be assigned to [the defendant].” Id. at 664 (8) (b) (ii). Delay caused by the pursuit of legitimate motions is “relatively benign.” Jenkins v. State, 294 Ga. 506, 512 (2) (b) (2) (iii) (755 SE2d 138) (2014). And finally, “[w]here no reason appears for a delay, we must treat the delay as caused by the negligence of the [S]tate in bringing the case to trial.” (Citation and punctuation omitted.) Cawley v. State, 330 Ga. App. 22, 26 (2) (b) (766 SE2d 581) (2014). “[T]he responsibility for the untimely disposition of court proceedings rests with the courts and delays attributable to the courts are attributable to the State.” Jenkins, supra, 294 Ga. at 511 (2) (b) (2) (i).

(c) Defendant Assertion of the Right. Smith did not assert his constitutional right to a speedy trial until over five years after his arrest on the day he was actually tried. See Cawley, supra, 330 Ga. App. at 27 (2) (c) (motion for acquittal asserts constitutional right to speedy trial). While the trial court weighed this factor against Smith, it did not specify whether it weighed against him slightly or heavily Additionally, it did not examine whether Smith asserted his right to a speedy trial “in due course.” Phan, supra, 290 Ga. at 595 (1) (c). “[T]he accused is not required to demand a speedy trial at the first opportunity.” Buckner, supra, 292 Ga. at 396 (3) (c).

To assess whether the accused insisted “in due course” upon his right to a speedy trial “requires a close examination of the procedural history of the case with particular attention to the timing, form, and vigor of the accused’s demands to be tried immediately.” And because delay often works to the defendant’s advantage, the failure of the accused to assert his right in due course generally is accorded “strong eviden-tiary weight.”

(Citations omitted.) Id. at 397 (3) (c). A defendant’s late assertion of a right to speedy trial may be mitigated by a defendant’s insistence on his right to discovery Id. One of the factors that a trial court may consider in this context is whether, during the time that discovery was not forthcoming from the State, the defendant “was insisting in the meantime that the State comply with its obligations to furnish discovery” (Citations and punctuation omitted.) Id. Additionally, “a trial court has the discretion to mitigate the weight given this factor when a defendant fails to assert his right during the period between arrest and indictment if he was out on bond and without counsel. [Cit.]” State v. Pickett, 288 Ga. 674, 676 (2) (c) (3) (706 SE2d 561) (2011). Furthermore, announcements that a defendant is ready for trial can also mitigate the weight of a late assertion. Johnson, supra, 291 Ga. at 868 (3). In this case, Smith sought to compel production of the source code in connection with previous trial calendars and the record before us does not show that he sought any continuances of those trial dates.

As the Supreme Court recently clarified:

Although the failure to promptly assert the right to a speedy trial ordinarily weighs heavily against a defendant, Pickett, 288 Ga. at 677 (2) (c) (3), we have acknowledged in previous decisions that the weight to be attributed to this factor may be mitigated in some cases, and whether the circumstances of a particular case warrant any mitigation is a question committed to the sound discretion of the trial court.

State v. Alexander, 295 Ga. 154, 159 (2) (c) (758 SE2d 289) (2014). Here, the trial court engaged in no analysis of whether Smith asserted his speedy trial right in due course, the circumstances that possibly mitigated his late assertion, and failed to specify the weight of this factor.

(d) Prejudice to the Defendant. The remaining factor in the Barker analysis is prejudice to the defendant.

The types of prejudice associated with an unreasonable delay before trial include oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the accused’s defense will be impaired by dimming memories and loss of exculpatory evidence. Of these forms of prejudice, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. A defendant need not show demonstrable prejudice to prevail on a speedy trial claim. Because of the difficulty of proving specific prejudice due to the passage of time, the United States Supreme Court has explained [that] excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part of the mix of relevant facts, and its importance increases with the length of delay.

(Citations and punctuation omitted.) Pickett, supra, 288 Ga. at 677 (2) (c) (4).

(i) In this case, Smith correctly asserts that the trial court erred by failing to take into account the presumption of prejudice arising from the five-year delay in this case when considering this phase of the balancing test. While the trial court made findings with regard to the other three types of prejudice, it was also required to consider the presumed prejudice a second time in this portion of the Barker analysis. See Wilkie v. State, 290 Ga. 450, 451 (721 SE2d 830) (2012); Layman v. State, 284 Ga. 83, 84-85 (663 SE2d 169) (2008). But in cases

where the defendant has made no attempt at all to demonstrate (or even argue) that he has suffered any particular prejudice to his mental or physical condition or to his defense strategy, any prejudice that might be presumed by virtue only of the passage of time will carry very little weight in the Barker analysis. [Cits.]

Phan, supra, 290 Ga. at 596 (1) (d). But it is nonetheless also true that “the greater the delay between charging and trial, the greater presumed impairment of witness recollections and other evidence needed for a fair and reliable trial. [Cit.]” State v. Porter, 288 Ga. 524, 531 (2) (c) (4) (705 SE2d 636) (2011).

(ii) Smith also claims that the trial court abused its discretion by failing to weigh the prejudice portion of the balancing test against the State because he demonstrated “tangible prejudice through the deprivation of evidence that the State admitted to destroying because ‘the city only keeps them so long.’ ” The record shows that while the State produced in discovery the incident report for Smith’s arrest, it did not provide the accident report for the collision in which Smith was involved, computer automated dispatch reports (CAD reports), 911 tapes, or the names and addresses of witnesses, including the other driver involved in the accident and EMT personnel who informed the officer dispatched to the scene of the accident that “they believed he was intoxicated.” The record shows that the State acknowledged destruction of only the CAD reports, and Smith’s counsel stated in the hearing that the State has “indicated there is no accident report that’s still available to us, for what reason I do not know, your Honor. I’m not sure if it never existed or whether it’s been destroyed.”

According to Smith, the missing evidence “was essential to establishing a time line of events and [his] appearance and demeanor... while on the scene” and also “essential to establishing [his] critical defense theory that an individual other than himself was driving the white Cadillac which he was accused of driving.”

In his previous appeal to this court, Smith raised these eviden-tiary issues in the context of a claim that the State failed to present sufficient evidence to support his conviction, and we concluded:

Smith first argues that the evidence failed to show that he was the driver. But the first responding officer testified that “[p]aramedics came out. They checked out the driver,” and the officer smelled an odor of alcohol on “the driver,” whom he identified as Smith at trial. The record does not disclose whether this description was hearsay from the paramedics or from Smith himself, nor did Smith object on that ground, so Smith has not demonstrated that this characterization of him as the driver was inadmissible. Furthermore, Teague testified that Smith volunteered to him that he was not at fault for the traffic accident because someone else had hit or sideswiped him. Smith also discussed with the officer the fact that even if he was not at fault he could be considered an impaired driver. Based on the record before us, we conclude that evidence authorized the trial court to find that no reasonable hypothesis existed other than he was the driver of the car.
Next, with respect to whether Smith was shown to have an unlawful blood alcohol concentration within three hours of driving, Teague testified on direct that the test was done within three hours of Smith’s driving. He further explained that this was based on the interval between the computer-recorded time that he was dispatched to the scene (10:45 p.m.) upon request by the initial investigating officer and the time recorded on the Intoxilyzer test (11:44 p.m.). Further, there was evidence that paramedic first responders were still treating Smith while the initial responding officer was on the scene, and that the initial officer smelled alcohol on Smith at that time, so this supports a finding that the accident scene was still “fresh” at the time Teague was dispatched, which preceded the Intoxilyzer test by only one hour. Finally, there was no evidence that Smith consumed alcohol after driving, so Smith’s test result, 0.126, following these events suggests that his blood alcohol concentration would have been even higher closer in time to his driving. Accordingly, the evidence authorized the trial court to find that the only reasonable hypothesis was that Smith’s blood alcohol concentration was above the statutory 0.08 threshold within three hours after he drove.

(Footnotes omitted.) Smith I, supra, 325 Ga. App. at 407 (1).

In its order denying Smith’s motion for discharge and acquittal, the trial court concluded “that the Defendant’s ability to defend the charges has not been impaired by the delay.” We agree with the State’s contention on appeal that the record before us contains some evidence supporting this factual finding by the trial court. A video from a dashboard camera on the arresting officer’s patrol vehicle depicting Smith’s appearance and demeanor was played at trial. With regard to the missing evidence, it is speculative as to whether it would have been favorable to the defense, and its absence allowed the defense to argue that the State had failed to meet its burden of proof. See Stewart, supra, 310 Ga. App. at 559-560 (2) (d) (iii).

(e) Balancing of Factors. In recent years, the Supreme Court has emphasized “that it is not the job of an appellate court to weigh the Barker factors in the first instance, and so, when a trial court has abused its discretion in its consideration of these factors, we generally remand the case for the trial court to exercise its discretion again.” (Citations and punctuation omitted.) Johnson, supra, 291 Ga. at 868 (3). See also York v. State, 334 Ga. App. 581, 586-588 (2) (780 SE2d 352) (2015). But, “[o]f course, a remand is not always required when the trial court has erred in its consideration of the factors. After all, in some cases, reasonable minds could not disagree about whether the right to a speedy trial has been denied, and in those cases, a remand would serve no purpose.” (Citation and punctuation omitted; emphasis in original.) Johnson, supra, 291 Ga. at 868 (3).

We may only do this, however, when the trial court has actually considered and weighed all of the Barker factors. “The Supreme Court of Georgia has made clear that [the] trial court[ ] must consider and weigh all four factors under the circumstances of each case.” (Citation and punctuation omitted; emphasis in original.) Culbreath v. State, 328 Ga. App. 153, 162 (4) (c) (761 SE2d 557) (2014). If the trial court fails to do so, a remand is still required. See id.; Porter, supra, 288 Ga. at 533-534 (2) (e) (reversing Court of Appeals for failing to vacate trial court’s order and remand for trial court to exercise its discretion). The rationale for this rule is that “[a] trial court exercises substantial discretion in applying the Barker balancing test, and its ultimate judgment is reviewed on appeal only for abuse of that discretion.” Porter, 288 Ga. at 533 (2) (e). This court is prohibited from weighing the factors in the first instance. Id. at 527 (2) (c) (2).

In this case, the trial court did not consider and weigh all of the factors, and we may not do so in the first instance. As outlined above, the trial court did not consider the length of the delay a second time when conducting its balancing test, it did not weigh the length of delay, and it did not assign any weight when it attributed the primary reason for the delay to the defendant’s attempt to obtain the source code. We must therefore remand this case to the trial court to consider and weigh all four of the Barker factors. Culbreath, supra, 328 Ga. App. at 162 (3); York, supra, 334 Ga. App. at 588 (2) (c); State v. Thompson, 334 Ga. App. 692, 700-701 (5) (780 SE2d 67) (2015) (remanding speedy trial issue to trial court after mandating that the assertion of the right and prejudice factors be weighed heavily against the defendant on remand, stating “we cannot say that the delay in bringing the case to trial was entirely attributable to [the defendant] as a matter of law”).

Accordingly, this is not a case in which it is appropriate for us to conclude that a remand is not necessary based upon an abuse of discretion by the trial court “in its consideration of these factors” because reasonable minds could not disagree about whether the right to a speedy trial has been denied. (Emphasis supplied.) Johnson, supra, 291 Ga. at 868 (3). And even if we could reach this issue, we cannot find that the trial court would have had no discretion to do anything but deny the motion to dismiss in this case after properly considering and weighing the four Barker factors. The length of the delay in this case was over five years, and a delay of one year is presumptively prejudicial. The reason for the delay does not necessarily rest primarily with the defendant in light of the State’s fifteen-month delay between arrest and accusation and subsequent six-month delay in responding to discovery, compounded by the trial court’s three-year delay in ruling on Smith’s request for a finding of materiality and relevance for the source code, and the lack of any evidence showing that the defense counsel’s leave of absence requests actually delayed the trial. Additionally, the filing of motions or seeking of discovery does not automatically mean that any associated delay should be attributed to the defendant and weighed heavily against him. With regard to the assertion of the right, a defendant does not have to demand a speedy trial at the first opportunity, but rather in due course, and a late assertion may be mitigated by a defendant’s insistence upon a right to discovery, an early lack of counsel, or a demonstrated willingness to proceed on previous trial calendars. And finally, while the evidence supports a finding of no actual prejudice, presumed prejudice from the five-year delay should be taken into account in the balancing test. In short, this is a case involving a complicated procedural history with gaps of information in the record presently before us making it difficult for reasonable minds to agree that there could be but one outcome following remand. See Alexander, supra, 295 Ga. 154 (affirming trial court’s exercise of discretion to grant motion for acquittal based upon violation of speedy trial right even though delay caused only presumptive prejudice and late assertion of right on day of trial); Johnson, supra, 291 Ga. at 868 (3) (remanding case to trial court where delay in assertion of right could be mitigated and only presumptive prejudice; could not say that trial court must always find no denial of speedy trial right under such circumstances); Cawley, supra, 330 Ga. App. at 28-29 (3).

2. Smith’s remaining enumeration of error is rendered moot by our holding in Division 1.

Judgment vacated and case remanded with direction.

Barnes, P. J., concurs. Rickman, J., concurs fully and specially.

RICKMAN, Judge,

concurring fully and specially.

The record in this matter reveals leave requests totaling 231 days, years of litigation in the Kentucky trial and appellate courts, no assertion of a statutory right, the assertion of a constitutional right for the first time on the date of trial, and the seeking of a continuance immediately thereafter. If ever there were a case where a remand seemingly would not be required, this is it.

Decided July 13, 2016.

Thomas, Webb & Willis, Gregory A. Willis, for appellant.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

Nevertheless, I agree with the majority that precedent from our Supreme Court requires a remand. I write only to note that it would be much “speedier,” and much less frustrating to the trial courts, if the law authorized us to make a determination as to whether the trial court’s ultimate conclusion is supported by the appellate record, regardless of mistakes made in the Barker analysis. As it stands, we must remand cases such as this one until such time as the trial court successfully follows a formulaic incantation of the Barker factors.

       In the blank space on the form titled “Trial Date,” the words “Further Notice” were typed.

       The specific dates follow: Thursday, February 5, 2009 — Friday, February 6, 2009; Thursday, February 12, 2009; Friday, February 27, 2009; Monday, March 2, 2009 — Tuesday, March 3, 2009; Monday, March 9, 2009 — Friday, March 13, 2009; Monday, March 16, 2009; Friday, March 20, 2009; Monday, April 13, 2009 — Friday, April 17, 2009; Monday, April 20, 2009; Monday, May 11, 2009 — Tuesday, May 12, 2009; Monday, May 18, 2009 — Friday, May 22, 2009; Monday, June 8, 2009 — Thursday, June 11, 2009.

       A seminal case addressing the standard for determining the materiality and relevance of source code evidence was winding its way through our appellate courts during this time period. See Davenport v. State, 289 Ga. 399 (711 SE2d 699) (2011). The case was first docketed in this court on April 22, 2009 and decided on February 11, 2010. Davenport v. State, 303 Ga. App. 401 (693 SE2d 510) (2010). The Supreme Court of Georgia granted a writ of certiorari on September 20, 2010, and issued its opinion on June 20, 2011. When the trial court granted Smith’s request for a certificate of materiality in October 2011, it cited only to the Supreme Court of Georgia’s decision in Davenport, supra.

       In June 2009, Smith filed another request for leave of absence for series of 13 dates for unspecified personal leave from July 2009 into January 2010. The specific dates are: Wednesday, July 8, 2009 — Friday, July 10, 2009; Monday, July 27, 2009 — Friday, July 31, 2009; Thursday, August 6, 2009 — Friday, August 7, 2009; Monday, August 10, 2009 — Friday, August 14, 2009; Monday, August 17, 2009; Monday, August 31, 2009 — Thursday, September 3, 2009; Monday, September 14, 2009 — Friday, September 18, 2009; Monday, October 12, 2009 — Friday, October 16, 2009; Monday, October 19, 2009; Monday, November 23, 2009 — Friday, November 27, 2009; Monday, November 30, 2009; Monday, December 28, 2009 — Thursday, December 31, 2009; Monday, January 4, 2010 — Wednesday, January 6, 2010.
      In April 2010, his counsel filed a request for leave of absence for a series of ten dates from July 2010 through December 2010 for unspecified personal leave. The specific dates are: Monday, July 5, 2010 — Friday, July 9, 2010; Monday, July 12, 2010; Monday, August 9, 2010 — Friday, August 13, 2010; Monday, September 13, 20Í0 — Friday, September 17, 2010; Monday, October 11, 2010 — Wednesday, October 13, 2010; Friday, October 29, 2010; Monday, November 1, 2010; Monday, November 22, 2010 — Friday, November 26, 2010; Thursday, December 23, 2010 — Friday, December 24, 2010; Monday, December 27, 2010 — Friday, December 31, 2010.
      On March 7, 2011, Smith’s counsel filed a request for leave of absence for unspecified personal leave from April 2011 into August 2011. The specific dates are: Monday, April 18, 2011 — Friday, April 22, 2011; Thursday, May 19, 2011 — Wednesday, May 25, 20li; Monday, June 13, 2011 — Monday, June 20, 2011; Monday, July 25, 2011 — Friday, August 5, 2011.
      On June 27, 2011, Smith’s counsel filed a request for leave of absence for unspecified personal leave for a series of nine dates from June 2011 into November 2011. The specific dates follow: Thursday, June 2,2011 — Friday, June 3, 2011; Monday, June 13,2011 — Monday, June 20, 2011; Friday, June 24, 2011; Friday, July 15, 2011; Monday, July 18, 2011; Monday, August 1, 2011 — Monday, August 15, 2011; Monday, September 12, 2011 — Friday, September 16, 2011; Monday, October 10, 2011 — Friday, October 14, 2011; Monday, October 31, 2011 — Tuesday, November 1, 2011.

       In a published and final opinion issued on June 13, 2014, a three-judge panel of the Kentucky Court of Appeals dismissed the consolidated appeals of the Georgia petitioners based upon a procedural defect in the appellants’ brief. Krugman v. CMI, Inc., 437 SW3d 167 (Ky.App. 2014). One of the judges “concur [red] with the result reached by the majority,” but would have “affirm[ed] on the merits of the appeal of the Circuit Court’s orders.” Id. at 171.

       On December 27, 2011, the case was placed on a trial calendar beginning on Friday, February 3, 2012. The case was not tried on this date, nor on a subsequent trial calendar beginning Friday, April 27, 2012.

       On September 15,2011, Smith’s counsel filed a request for a leave of absence for a series of seven dates from October into February 2012. The specific dates that are not duplicative of the previous leave request follow: Monday, November 7, 2011 — Friday, November 11, 2011 (preparation for vehicular homicide case); Monday, November 14, 2011 —Friday, November 18, 2011 (specially set vehicular homicide case); Monday, November 21, 2011 — Monday, November 28, 2011 (personal leave); Thursday, December 22, 2011 — Tuesday, January 3, 2012 (personal leave); Tuesday, January 31, 2012 — Monday, February 6, 2012 (personal leave).
      On January 4, 2012, Smith’s counsel filed an additional leave of absence request for the following dates, citing personal leave as the reason for each: Monday, January 30, 2012 — Monday, February 6, 2012; Friday, February 17, 2012 — Thursday, February 23, 2012; Thursday, March 15, 2012 — Tuesday, April 3, 2012; Monday, April 16, 2012 — Monday, April 23, 2012; Wednesday, May 16, 2012 — Wednesday, May 23, 2012.

       Defense counsel’s last leave of absence filed on May 8, 2012 did not result in a delay of the trial that took place 13 days later on June 1 because it requested leave for dates beginning on June 7,2012. Likewise, it is unknown whether the sole leave request that fell between the last scheduled trial date of April 27, 2012 and June 1, 2012 resulted in a delay.

       At no time did Smith file a statutory demand for a speedy trial. See OCGA § 17-7-170 (a).

       Smith incorrectly asserts that the trial court should consider the time period this case has been on appeal in calculating the delay. This time period is considered only in cases where the case has not yet been tried. See Cawley v. State, 324 Ga. App. 358, 360 (750 SE2d 428) (2013). As this is not such a case, the trial court properly considered only the time period between Smith’s arrest and trial. See Phan v. State, 290 Ga. 588, 593 (1) (a) (723 SE2d 876) (2012).

       In its order, the trial court noted that the delay was presumptively prejudicial, and then stated that it accordingly “must analyze the other three Barker factors to determine if Defendant’s constitutional right to a speedy trial was denied.” (Emphasis supplied.) But a finding of presumptive prejudice triggers a balancing and weighing of four factors under Barker. And at the end of its order, it stated that it had “weighed and considered the Barker factors as set forth above." (Emphasis supplied.)

       See Stewart, supra, 310 Ga. App. at 555 (2) (trial court may attribute portion of pre-trial delay to defense counsel leaves of absence).

       Smith does not contest the trial court’s finding that he did not suffer oppressive pre-trial incarceration or undue anxiety and concern.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A16A0567, A16A0609.
    TETRA TECH TESORO, INC. v. JAAAT TECHNICAL SERVICES, LLC et al. (two cases).
    (789 SE2d 310)
   Branch, Judge.

In the role of subcontractor, Tetra Tech Tesoro, Inc. (Tesoro), a Virginia corporation, entered into two identical subcontracts, which it drafted, for work to be performed at federal installations in Georgia. The prime contractor was also a Virginia entity, and Tesoro included within the subcontracts Virginia choice of forum and choice of law clauses. Later, based on the prime contractor’s alleged breach of each contract, Tesoro filed separate actions in two Georgia courts and argued that under Georgia law, the forum selection clause was not enforceable. In these consolidated appeals, Tesoro appeals the orders entered in each case, which granted the defendants’ motion to dismiss for lack of venue based on the Virginia choice of forum clause found in each agreement. For the reasons that follow, we affirm.

We review de novo a trial court’s ruling on a motion to dismiss based on a forum selection clause. Crump Ins. Svcs. v. All Risks, 315 Ga. App. 490, 491 (727 SE2d 131) (2012); Carson v. Obor Holding Co., 318 Ga. App. 645, 646 (734 SE2d 477) (2012); see also Beasley v. Beasley, 260 Ga. 419, 420 (396 SE2d 222) (1990) (On a motion to dismiss for lack of jurisdiction, the defendant may rely on evidence not contained in the pleadings and the plaintiff may rebut that evidence, but in that event, absent oral testimony, “the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non-deferential standard.”).

Unless otherwise stated, the facts recited herein are not in dispute. Tesoro, a Virginia corporation with its principal place of business in Virginia, is a federal contractor. During 2011 and 2012, Tesoro, as the subcontractor, entered into two of five separate subcontracts with federal contractor JAAAT Technical Services, LLC, a Virginia company with its principal place of business in Virginia, to construct military operations facilities at various army bases in North Carolina and Georgia; the two subcontracts at issue in this appeal concern construction projects at Fort Gordon and Fort Ben-ning in Georgia. In each of these two subcontracts, which were drafted by Tesoro, the two Virginia companies agreed to identical Virginia choice of forum and choice of law provisions as follows:

SUBCONTRACTOR agrees that all other claims related in any way or manner to the Subcontract Work or this Subcontract not included in subparagraphs 15.1 or 15.2[], above, shall be litigated in the Circuit Court of the City of Hopewell, Virginia, or the United States District Court for the Eastern District of Virginia, Richmond Division, regardless of the location of SUBCONTRACTOR’S work or the Project. The parties hereto expressly consent to the jurisdiction and venue of said Courts and acknowledge that they may be waiving rights they might otherwise have to bring suit in any other venue. The parties further agree that all disputes under this Subcontract shall be determined and interpreted pursuant to the laws of the Commonwealth of Virginia.

With regard to the Fort Gordon and Fort Benning projects, all construction activities associated with the subcontracts occurred on the military bases in Georgia.

In December 2014, Tesoro filed two almost identical actions in Georgia against JAAAT and two of JAAAT’s managerial employees concerning the Fort Gordon and Fort Benning subcontracts, respectively; the Fort Gordon suit was filed in Richmond County, while the Fort Benning suit was filed in Chattahoochee County Tesoro alleged that, in each case, JAAAT failed to fully pay for work performed by Tesoro and that Tesoro was entitled to certain subcontract adjustments for the cost impact of additional, changed, and extra work. Tesoro also alleged that JAAAT knowingly made false certifications to the federal government concerning payments to subcontractors on the projects; that JAAAT failed to establish separate deposit accounts for each project for the receipt of deposits by the federal government, from which subcontractors were to be paid on each project; and that JAAAT commingled contract funds, which was prohibited by the subcontracts. Based on these allegations, Tesoro brought claims in each suit for breach of contract, breach of fiduciary duty, breach of an implied covenant of good faith and fair dealing, conversion, unfair and deceptive trade practices, civil conspiracy, and unjust enrichment. In addition to damages, Tesoro sought the imposition of a constructive trust on subcontract funds received by JAAAT from the federal government, an accounting, punitive damages, injunctive relief, and a declaration that Tesoro had a right to stop work. Tesoro did not seek a receiver in its complaint, but several weeks later, Tesoro filed a motion in each case, requesting, among other things, that the trial court appoint a receiver “to manage the assets and funds associated with the .. . project during the pendency of the litigation.”

In response to the complaints, JAAAT and the individual defendants moved to dismiss each suit on the ground that the court lacked personal jurisdiction and that venue was improper. With regard to personal jurisdiction, the defendants argued that they did not have any contacts or transact any business in Georgia because the two forts are federally owned and operated military bases subject to the jurisdiction of the United States Government, i.e., federal enclaves “over which Georgia has ceded jurisdiction to the federal government.” The defendants further argued that all of the conduct alleged in the complaint occurred either on these federal enclaves or in Virginia. JAAAT and the individual defendants also argued that venue was proper in Virginia as a consequence of the forum selection clauses.

Following a hearing, each court issued a written order granting the defendants’ motion to dismiss. In the Fort Gordon case, the Superior Court of Richmond County held that the enforceability of the forum selection clause should be decided under federal law given that Fort Gordon is a federal enclave; that “[t]he core of Tesoro’s allegations stem from the fact that it was purportedly not paid for work it performed on Fort Gordon”; that “Tesoro has not presented any evidence showing that the events giving rise to [the] litigation occurred anywhere but on the federal enclave”; that under federal law, forum selection clauses are enforced absent “exceptional circumstances”; that Tesoro presented no evidence of exceptional circumstances; and that the result would be the same under Georgia law. Accordingly, the trial court enforced the forum selection clause and dismissed the Richmond County action. In Case No. A16A0567, Tesoro appeals that decision.

In the Fort Benning case, the Superior Court of Chattahoochee County held that it was undisputed that Fort Benning was a federal enclave; that Georgia has adopted federal law regarding the enforceability of forum selection clauses; that under that law, absent fraud, undue influence, or overweening bargaining power, such clauses should be enforced unless the chosen forum would be so inconvenient as to deny the litigant his day in court; that given that the parties were based in Virginia and executed the contracts in Virginia, a Virginia forum was not inconvenient; and that there was no evidence of undue influence or fraud in connection with the forum selection clause. Accordingly, the trial court enforced the forum selection clause and dismissed the Chattahoochee County action. In Case No. A16A0609, Tesoro appeals that decision. This Court has consolidated the two cases for purposes of appeal. We affirm, but for reasons different, from those stated by the trial courts below.

1. The essence of Tesoro’s argument on appeal is that enforcement of the parties’ forum selection clause would contravene Georgia public policy because if the suits were filed in Virginia, Tesoro would lose a remedy available in Georgia that is not available in Virginia, namely, the right to have the trial court appoint a receiver to manage the assets and funds associated with the project during the pendency of the litigation. To proceed, we must first determine whether Georgia, Virginia, or federal law should be applied to determine the enforceability of the forum selection clause.

(a) Setting aside the question of federal law for the moment, in general, the law of the forum, in this case Georgia, governs the enforceability of a forum selection clause despite the parties’ choice to have Virginia law apply to disputes arising under the subcontracts:

The enforceability of the forum selection clauses is a procedural issue which, under the rule of lex fori, requires application of the law of Georgia (where suit was filed), even though the [parties’] agreements also contain choice of law clauses requiring application of [another state’s] law.

Lapolla Indus. v. Hess, 325 Ga. App. 256, 265 (3) (750 SE2d 467) (2013) (citation omitted). Instead of Georgia law, however, JAAAT counters that federal law should govern the enforceability of the forum selection clause given that the contract work was performed on a federal enclave and that, therefore, we need not examine whether the clause contravenes Georgia public policy But our reading of federal law suggests that the question of the enforceability of a forum selection clause under federal law would also require us to examine Georgia public policy. Thus, pretermitting whether federal law should be applied (including the possible application of the federal enclave doctrine), we will address Tesoro’s argument that the parties’ forum selection clause contravenes Georgia public policy.

(b) As explained below, because Tesoro has failed to make a strong case showing that enforcement of the forum selection clause that it drafted would contravene a Georgia public policy, the clause is enforceable, and we therefore affirm the trial courts’ dismissal of Tesoro’s Georgia actions.

“[P]ublic policy may afford a compelling reason to avoid a forum-selection clause, at least to the extent that proceedings in the selected forum are likely to produce a result that offends a settled public policy of Georgia.” Carson v. Obor Holding Co., 318 Ga. App. at 648 (citations omitted). To invalidate such a clause, Tesoro bears the burden of making a “strong case” “free from substantial doubt” that enforcement of the clause would prejudice the public interest:

A contract should not be held unenforceable as being in contravention of public policy except in cases free from substantial doubt where the prejudice to the public interest clearly appears. . . . Enforcement of a contract or a contract provision which is valid by the law governing the contract will not be denied on the ground of public policy, unless a “strong case” for such action is presented; mere dissimilarity of law is not sufficient for application of the public policy doctrine.

CS-Lakeview at Gwinnett v. Simon Property Group, 283 Ga. 426, 428 (659 SE2d 359) (2008) (citations and punctuation omitted); see also SR Business Svcs. v. Bryant, 267 Ga. App. 591, 592 (600 SE2d 610) (2004) (party seeking to invalidate a forum selection clause “bears the burden of proving that enforcement of the forum selection clause would be unreasonable under the circumstances”) (citation omitted).

Tesoro asserts that there is a settled Georgia public policy “to protect materialmen [and subcontractors] by requiring general contractors to pay materialmen [and subcontractors] for the services they have provided once the contractor has itself received payment.” Tesoro argues that this public policy is reflected in Georgia laws that provide for (1) materialman’s liens, OCGA § 44-14-361 (a) (2); (2) criminal sanctions for contractors who unlawfully retain project funds that were meant to pay for labor, service, or materials on a project, OCGA § 16-8-15; and (3) the remedy of a receiver “to take possession of and hold . . . any assets charged with the payments of debts where there is a manifest danger of loss, destruction, or material injury to those interested,” OCGA § 9-8-3. Tesoro then asserts that it has made a strong case of showing that enforcement of the forum selection clause would contravene Georgia public policy because Virginia “does not afford the remedy of receivership under similar circumstances.” As Tesoro argues, “if this case were to go to Virginia, the relief that is necessary and available under Georgia law would not be afforded to [Tesoro].” Even assuming that Georgia law reflects a Georgia public policy in favor of protecting subcontractors as Tesoro claims, which we do not decide, Tesoro has failed to show that applicable remedies under Virginia law would be different,. Thus, Tesoro’s argument is without merit.

First, Tesoro admits that it, in fact, is not entitled to a material-man’s lien under Georgia law. Moreover, Tesoro fails to acknowledge that Virginia, like Georgia, has a materialman’s lien statute. See Va. Code Ann. § 43-1 et seq. Thus, Tesoro has shown no difference between Virginia and Georgia law on this first point as applied to this case. Next, Tesoro offers no comparison of Virginia and Georgia criminal law that might be applicable to subcontractor disputes other than citing a single Georgia criminal statute, nor does it cite authority to show that a single Georgia criminal statute creates a Georgia public policy sufficient to invalidate a choice of forum clause. Finally, Tesoro’s assertion on the point on which it most strongly relies — that Virginia does not offer the remedy of appointment of a receiver under the present circumstances — is based on a cursory review of Virginia law and fails to support Tesoro’s position.

Tesoro asserts that because there is no allegation that JAAAT is insolvent, Tesoro would not be entitled to a receiver under Virginia law. But Tesoro’s only authority for this assertion, C. F. Trust v. First Flight, 140 FSupp.2d 628 (E.D. Va. 2001), as amended (Apr. 26, 2001), aff’d, 338 F3d 316 (4th Cir. 2003), is a non-binding federal case, that states without direct citation that “under Virginia law, the appointment of a receiver is generally for the purpose of overseeing the liquidation or dissolution of an entity” Id. at 645-646 (IV) n. 58. Yet earlier in the same opinion, the federal court cited a Virginia Supreme Court case—Adelman Assoc. v. Goldsten, 209 Va. 731, 738 (167 SE2d 104) (1969)—which stands for the proposition that “a court of equity is not empowered to appoint a receiver for a corporation, ‘absent proof of insolvency, fraud, waste, or improper conduct.’ ” C. F. Trust, 140 FSupp.2d at 645 (IV) n. 58. Adelman thus shows that insolvency is not the only basis for appointment of a receiver allowed in Virginia courts. In the cases before us, Tesoro alleged that JAAAT engaged in improper conduct, which could provide the basis for obtaining a receiver, when it alleged that JAAAT made false certifications to the federal government, commingled project funds, and “engaged in a scheme of tortious conduct and contractual violations to misappropriate funds entrusted to them by the U. S. Government to pay Tesoro.” And Tesoro cites no controlling authority for the proposition that improper conduct, standing alone, is an insufficient justification for a receiver under Virginia law. Finally, Adelman is a case involving a corporate insolvency; thus it only stands for the proposition that a receiver is available in such a case, not that a receiver is not available in other types of cases. Thus Adelman is consistent with Virginia statutes that grant a court in a judicial proceeding brought to dissolve a corporation the power to appoint receivers:

Unless an election to purchase has been filed under § 13.1-749.1, a court in a judicial proceeding brought to dissolve a corporation may appoint one or more receivers to wind up and liquidate, or one or more custodians to manage while the proceeding is pending, the business and affairs of the corporation.

Va. Code Ann. § 13.1-748 (A); see also Va. Code Ann. § 13.1-910. It follows that Tesoro has not shown that Virginia case law prohibits the appointment of a receiver in noninsolvency proceedings. Cf. Bethlehem Steel Corp. v. Williams Indus., 245 Va. 38, 43 (425 SE2d 484) (1993) (appointment of a receiver not appropriate where debtor was not insolvent and there was no evidence of fraud, waste, or any other improper conduct).

Moreover, at least two provisions of the Virginia Code allow for receivers and could arguably benefit Tesoro in Virginia. First, Va. Code Ann. § 8.01-549, entitled “Restraining order or receiver,” provides that courts may appoint receivers in connection with attachments as follows:

The court may interpose by a restraining order, or the appointment of a receiver, or otherwise, to secure the forthcoming of the specific property sued for, and so much other estate as will probably be required to satisfy any further order that may be made in the proceedings.

This Code section appears to provide for the specific type of receiver that Tesoro sought, i.e., one “to manage the assets and funds associated with the . . . project during the pendency of the litigation.” Second, Va. Code Ann. § 8.01-591, the first code section in an article entitled “Special Receivers,” provides for the appointment of receivers as follows:

Whenever the pleadings in any suit make out a proper case for the appointment of a receiver and application is made therefor to any court, such court shall designate the time and place for hearing such application, and shall require reasonable notice thereof to be given to the defendant and to all other parties having a substantial interest, either as owners of or lienors of record and lienors known to the plaintiff, in the subject matter. The court to whom such application is made shall inquire particularly of the applicant as to the parties so substantially interested in the subject matter, and such applicant, for any intentional or wilful failure to disclose fully all material information relating to such inquiry, may be adjudged in contempt of court.

Decided July 13, 2016.

Case No. A16A0567

See also John L. Costello, Virginia Remedies, § 9.02 (Special Receivers) (“[Sjpecial receivers often play a large role in assuring remedies to entitled persons. On a petition of a party in any case where the pleadings make out a proper case for the appointment of a receiver, i.e., it is inappropriate for one party to remain in control of the property pending trial, the court shall designate the time and place for a hearing on the petition.”). Tesoro has not mentioned these Virginia Code sections in its appellate briefs and has therefore failed to explain why they are not applicable.

In short, Tesoro has failed to carry its burden to show that Virginia law is materially different from, much less in conflict with, that of Georgia on the legal points raised by Tesoro’s complaint. Tesoro, therefore, has wholly failed to make a strong case, free from substantial doubt, that enforcement of the parties’ forum selection clauses that Tesoro drafted are likely to produce a result that violates a public policy of Georgia because the same or similar remedies are not available in Virginia. See Nationwide Gen. Ins. Co. v. Parnham, 182 Ga. App. 823, 825 (4) (357 SE2d 139) (1987) (“mere dissimilarity of law is not sufficient for application of the public policy doctrine”) (citation and punctuation omitted). Accordingly, the trial courts did not err in granting JAAAT’s motions to dismiss in each of the cases presented on appeal.

2. JAAAT’s motion to dismiss a portion of Tesoro’s appeal in Case No. A16A0609 is dismissed as moot.

Judgments affirmed.

Mercier, J., concurs. Ellington, P. J., concurs in judgment only.

Greenberg Traurig, Michael J. King; Hull Barrett, David E. Hudson, for appellant.

Swift, Currie, McGhee & Hiers, Amer H. Ahmad, for appellees.

Case No. A16A0609

Greenberg Traurig, Michael J. King, Ernest L. Greer; Page, Scrantom, Sprouse, Tucker & Ford, Thomas F. Gristina, for appellant.

Swift, Currie, McGhee & Hiers, Amer H. Ahmad, for appellees.

       None of the parties contend these subparagraphs apply to Tesoro’s claims.

       Tesoro apparently filed suit on its three other subcontracts in North Carolina. JAAAT has filed a single lawsuit arising out of all five subcontracts in the United States District Court for the Eastern District of Virginia.

       After the present appeals were docketed in this Court, the United States District Court of the Eastern District of Virginia addressed a related issue raised in that court by Tesoro in JAAAT’s suit against Tesoro for breach of contract arising out of the same contracts at issue here, as well as the related contracts concerning Fort Bragg in North Carolina. See JAAAT Tech. Svcs. v. Tetra Tech Tesoro, 2016 U. S. Dist. LEXIS 41946 (E.D. Va. 2016). In that action, JAAAT argued that the District Court had subject matter jurisdiction of the action pursuant to the federal enclave doctrine, and Tesoro moved to dismiss on the ground that “subject matter jurisdiction [did] not exist because JAAAT’s breach of contract claims [did] not arise under federal law.” Id. at_(III) (emphasis omitted). The District Court noted that for the purposes of its motion, Tesoro conceded “that the Military Bases constitute federal enclaves” and that Tesoro did not refute JAAAT’s assertion that ‘the federal government possesses exclusive legislative power over the Military Bases.” Id. The District Court held that despite the parties’ agreement to apply Virginia law to their disputes arising under the five contracts, the federal law applicable to the military bases “supersedes the application of state law.” Id. at_(III). Accordingly, the District Court held that “[bjecause the events giving rise to JAAAT’s claims occurred on the Military Bases, the Court finds that JAAAT’s claims arise under federal law” and therefore the District Court had subject matter jurisdiction for JAAAT’s claims. Id. at_ (HI) (A).

       See generally Peterson v. Wade, 222 Ga. 805, 810 (1) (b) (152 SE2d 745) (1966) (“As to remedies, the law of the forum prevails.”) (citation and punctuation omitted).

       See generally Stewart Org. v. Ricoh Corp., 487 U. S. 22, 30 (III) (B) (108 SCt 2239, 101 LE2d 22) (1988) (when an Alabama federal district court sitting in diversity is determining whether to uphold the parties’ choice of forum clause, the court may consider Alabama public policy that might refuse to enforce forum selection clauses providing for out-of-state venues); The Bremen v. Zapata Off-Shore Co., 407 U. S. 1, 15 (92 SCt 1907, 32 LE2d 513) (1972) (“A contractual choice-of-forum clause should be held unenforceable if enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision.”) (citation omitted); Estate of Myhra v. Royal Caribbean Cruises, 695 F3d 1233, 1240 (A) (11th Cir. 2012).

       The Virginia Supreme Court considers Fourth Circuit and lower district court decisions as persuasive authority but not binding precedent for Virginia courts. Toghill v. Commonwealth, 289 Va. 220, 227 (768 SE2d 674) (2015).

       See Va. Code Ann. § 8.01-533 (“If any person has a claim, legal or equitable, to (i) any specific personal property, (ii) any debt, including rent, whether the debt is due and payable or not, (iii) damages for breach of any contract, express or implied, or (iv) damages for a wrong, or for a judgment for which no supersedeas or other appeal bond has been posted, he may sue out an attachment therefor on any one or more of the grounds stated in § 8.01-534.”).


author: PHIPPS, Presiding Judge.

text:
    A16A0605.
    THE STATE v. MATHIS.
    (789 SE2d 336)
   PHIPPS, Presiding Judge.

The state accused Justin Mathis of crimes in connection with circumstances pertaining to a traffic stop of his vehicle. Mathis filed a motion to suppress all evidence obtained as a result of the stop, arguing that the stop was illegal. The state argued that the stop was lawful because Mathis had no light illuminating his license plate — a violation of OCGA § 40-8-23 (d). The trial court conducted a hearing, then granted the motion. The state appeals. For reasons that follow, we vacate the judgment and remand the case for reconsideration.

Pursuant to OCGA § 17-5-30 (b), “the burden of proving that the search and seizure were lawful shallbe on the state.” Accordingly, “[i]t is the [sjtate’s burden to establish the existence of circumstances constituting an exception to the general prohibition against warrant-less searches and seizures.”

“When reviewing a trial court’s ruling on a motion to suppress, an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court,” and “[the trial] court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous.” When facts “can be ascertained definitively, for instance, from a video recording^] . . . we give less deference to the fact findings of the trial court.” And we owe no deference to the trial court’s conclusions of law.

OCGA § 40-8-23 (d), the provision relied upon by the state, sets forth:

Either a taillight or a separate light shall be so constructed and placed as to illuminate with a white light the rear registration plate and render it clearly legible from a distance of 50 feet to the rear. Any taillight or taillights, together with any separate light for illuminating the rear registration plate, shall be so wired as to be lighted whenever the headlights or auxiliary driving lights are lighted.

The sole witness at the motion hearing was the officer who had conducted the stop. On direct examination, he recounted the following. At about 2:30 a.m. on February 12, 2015, he had just completed a (different) traffic stop when he noticed Mathis’s vehicle as it passed by because, as the officer testified, “I did not think the car had a tag on it.” The officer got in his patrol car and followed Mathis’s vehicle, until it turned into a driveway. The officer drove past the driveway, but pulled into the parking lot of a nearby gas station, where he waited. Seconds later, the officer saw Mathis’s vehicle passing by the gas station. At that point, the officer testified, “I could see from the street lights illuminating his car around the gas station, that there was actually a tag on there but there was no working tag light at all on the vehicle.” The prosecutor followed up with:

Q: And then when you looked at him passing the gas station, were you able to determine whether or not he had a tag light or if the tag light was working?
A: I could tell that there was no working tag light there, that it had burnt out or doesn’t have one, there was no light illuminating the tag, I knew that.
Q: So was it legible from a distance of 50 feet?
A: No.

Next, the prosecutor elicited the officer’s testimony that the camera mounted to the dash of his patrol car (“dash cam”) had activated when he pursued Mathis’s vehicle and that the dash cam had recorded the traffic stop. That video-recording (with no sound) was presented to the trial court. Thereafter, the prosecutor asked the officer questions about the silent depictions, focusing on that portion during which the officer was pointing to the tag area of Mathis’s vehicle.

Q: Is that where you were showing him that the tag light was at?
A: Yes, ma’am, that was. Saw that I reached above his tag underneath the trunk lid pointing it out to him so he would know where it is at so he can fix it.
Q: Do you recall the conversation that y’all had about that?
A: I do.
Q: What was that conversation?
A: I showed him where his tag light was and advised him it was out and he apologized and said he didn’t know and said that he would fix it tomorrow.
Q: Okay So he acknowledged that it was out?
A: Yes, he did.

The prosecutor next asked the officer about the surveillance equipment he had been wearing on his body at the time in question. The officer described “a camera that I wear on the side of my head with a little strap that holds it on your head.. . . [I]t is activated from a battery pack that we wear. ... There’s a little round button on front and you just push it two times and it activates, it starts recording.” An audio-video recording of the pursuit of Mathis’s vehicle and the traffic stop had thereby been created by that camera (‘Tody cam”), and it was presented to the court.

On cross-examination, defense counsel asked the officer whether, in discussing with Mathis his tag light, he had “reach[ed] up under there and touch[ed] where the tag light is?” The officer answered, “I did.” Defense counsel asked, “Was there a bulb in there?” The officer responded, “I do remember pointing, showing him like up under here is where the light bulb is supposed to be.” Asked then whether he recalled feeling an empty socket, the officer answered, “No, I don’t remember an empty socket.”

Also, with the officer on the stand, defense counsel authenticated a photograph, which the officer recognized as “a still picture” from the recording made with his body cam. The still picture, the officer described, depicts “my patrol car ... following that car that I initiated the stop on” as they drove in front of the gas station. More specifically, the officer testified that as of the moment captured by the still picture, Mathis’s vehicle was more than 50 feet ahead of his patrol car. The still picture was presented to the trial court.

Before resting, defense counsel asked the officer whether there was any other basis for stopping Mathis’s vehicle: “In other words you didn’t see him fail to maintain lane or improper turn or anything like that?” The officer answered, “No, sir.”

On redirect examination, the prosecutor asked the officer two questions to evince that Mathis’s tag lacked illumination:

Q: Once you got closer to the Defendant’s vehicle, were you still able to see that there was not a functioning tag light?
A: Yes.
Q: Once you were at the point of 50 feet away, there was no — you readily confirmed that there was no functioning tag light?
A: Yes.

After both sides presented respective closing argument, the trial judge expressed his personal opinion about the statutory provision relied upon by the state before ultimately announcing, “I’ll grant the motion,” and further stating that “[i]n this case it hasn’t been shown to me that [the tag light] was out because based on the picture that the Defendant entered.” Subsequently, in the “Order on Defendant’s Motion to Suppress,” the trial court set forth:

Upon consideration of all of the testimony, the exhibits, and any argument by counsel, it is hereby ordered and adjudged that Defendant’s Motion to Suppress is GRANTED [w]ith the following findings of fact: State did not show that the officer had a[n] articulable suspicion that the Defendant had violated the rules of the road. All evidence suppressed.

1. The state attacks the grant of Mathis’s motion to suppress as contrary to the evidence, maintaining that “[the officer] conducted the traffic stop because of the equipment violation, specifically no tag light, which is a violation of state law.”

The state summarizes the case it presented to the trial court as follows. Citing the officer’s testimony, the state claims it showed:

[The officer] parked his vehicle in the gas station parking lot, and, seconds later, observed [Mathis] pass the gas station. With the street lamps illuminating [Mathis’s] vehicle, [the officer] determined that the vehicle did have a tag; however, it did not have a working tag light. [The officer] observed no light illuminating the tag and determined either the vehicle’s tag light was burned out or the vehicle lacked a tag light. [The officer] confirmed that due to the lack of tag light, the tag was not legible from a distance of fifty feet. . . . After being shown that the tag light was out, [Mathis] acknowledged that the tag light was out.

The state characterizes the officer’s testimony as “uncontra-dicted” and further “bolstered” by all three exhibits introduced at the hearing. Citing certain portions of the dash cam and body cam recordings, the state asserts that “it was clear there was no white light illuminating the tag.” Regarding the still picture introduced by the defense, the state claims that “[it] does not show that the tag light was working.” According to the state, “[n]o evidence presented indicates that the tag light was ever illuminated during the course of the Appellee driving or the traffic stop.”

The trial court was not required to accept the state’s position. “[W]hen a motion to suppress is heard by the trial judge, that judge sits as the trier of facts.” “Credibility of witnesses and the weight to be given their testimony is a decision-making power that lies solely with the trier of fact. The trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony.” “Factors such as demeanor, contradictory or inconsistent statements and evidence that an officer had ‘ulterior motives’ can all lead a finder of fact to disregard testimony by an officer.” And as explained above, deference to the fact-finding prerogative of the trial court requires an appellate court to view the evidence in the light most favorable to the findings and decision of the trial court.

Notably, in the instant case, when the prosecutor reminded the trial judge near the close of the hearing of the officer’s testimony that Mathis was driving a vehicle that had no functioning tag light, the trial judge responded that the officer’s credibility was at issue. While the trial court did not go so far as to explicitly find that the officer lacked credibility, the court ultimately granted the motion — “[u]pon consideration of all of the testimony, the exhibits, and any argument by counsel.” Generally, our obligation to view the evidentiary record in the light most favorable to the findings and judgment of the trial court requires us to assume that the trial court rejected the credibility of the officer to the extent that the officer’s testimony is inconsistent with the court’s decision. Moreover, we have examined the dash cam recording, the body cam recording, and the still photograph. Contrary to the officer’s testimony that Mathis’s vehicle lacked a functioning tag light, all three exhibits captured Mathis’s license tag being illuminated from a lighting source affixed to his vehicle directly above the tag. Finally, the state cites the officer’s testimony that when he showed Mathis where his tag light was located and advised him it was “out,” Mathis acknowledged that it was “out.” But the relevant portion of the body cam (audio-video) recording captured this discussion:

Officer: If everything comes back good, I’m gonna give you a warning on that tag light, alright? It’s gon’ be up around here somewhere, ok?
Mathis: Yea, I didn’t even know that, ah, I mean I’ll get it fixed tomorrow.
Officer: OK.

The trial judge was not required to find from the evidence that Mathis thereupon “acknowledged” that he had no functioning tag light.

Given the foregoing, the trial court was authorized to conclude that the state had failed to carry the burden imposed upon it by Mathis’s motion to suppress. The sole articulated basis for the stop — as confirmed by the officer’s testimony at the suppression hearing, as well as the state’s brief on appeal — was that, because Mathis’s vehicle had no light illuminating the tag, the tag was not legible. Having reviewed the evidence, and accorded due deference to the trial judge’s fact-finding prerogative, we conclude that the trial court was authorized to reject the state’s claim that it had evinced the underlying premise (the lack of a functioning tag light) and to thus find that the state did not show that the officer had an articulable suspicion that Mathis had violated OCGA § 40-8-23 (d).

2. The state contends that the trial court erred in its “interpretation and application of OCGA § 40-8-23 (d),” asserting that the trial judge’s personal dislike of the statutory provision — as revealed through certain of the judge’s remarks — “cloud[ed]” the ruling. According to the state, a “proper, unbiased interpretation of the statute would have led the trial court to deny [Mathis’s] motion to suppress.”

The state first cites that after both sides gave respective closing arguments, the trial judge remarked, “I’ve made no bones about the fact that this is my least favorite basis for a stop.” But as the transcript shows, the trial judge went on to acknowledge that “if a Rules of the Road are violated then a pretextual stop is . . . okay [authorized].” The state also cites that the trial judge remarked that the “tag light is not a public safety issue in my opinion.” But the transcript shows that immediately thereafter, the trial judge acknowledged:

Now, that’s not determinative, I know. That just means that I don’t like the stop because I think it wreaks [sic] of pretextuality to be ... it is just my opinion, I don’t think it involves public safety ... in my opinion, as a reason for stopping cars in the middle of the night because a tag light is out. And I — it is my least favorite of all the stops. Now, to the [C]ode section.

Thereupon, the trial judge noted that OCGA § 40-8-23 (d) “says either a taillight or a second light shall be constructed and placed so as to illuminate [with] white light the rear registration plate.” The trial judge thus ascertained:

So it says either a taillight or a separate light so it is “or.” So a separate light is not necessary. You don’t have to have a tag light on a car. If your taillights are situated so that they — when the white part that stays on on a taillight, if it illuminates the tag, then a stop can’t be made based on this [C]ode section.

Next, apparently examining evidence adduced at the hearing, the trial judge determined, “This picture here (indicating) introduced here, shows that the tag light is visible.” Turning back to the statutory language, the trial court noted additionally that “the [C]ode says that so it is clearly legible from a distance of 50 feet to the rear.”

As the state further cites, the trial judge then revealed, “I don’t see where this becomes an issue, making a stop necessary, stopping a citizen by the police, unless it is a situation it is completely dark and that he can’t read the tag.” These following remarks, the state claims, demonstrate that the trial judge went on to grant the motion under an inapplicable test.

I think in order for it to appease me, they would need to show that in a black area with the officer’s headlights out and the Defendant’s lights on, that the tag was not visible for 50 feet which I don’t think they’ve shown in this case. I think that’s what they would have to do to appease me is to construct a situation where wherever this car was pulled over, if you turned off the officer’s headlights so they weren’t shining on the car, and the Defendant’s lights were on as they were when he was driving, if you stood 50 feet back and you still couldn’t see the tag, then based on this [C]ode section it would justify the stop. Other than that, I just don’t think it is a justification for stopping citizens on the road in my opinion. I’ll grant the motion.

It was at this point during the hearing when the prosecutor reminded the judge of the officer’s testimony that he had observed a tag light violation. The judge responded that “it is an issue, always an issue of credibility as far as his testimony early on.” Before concluding the hearing, the trial judge revisited:

I have made my opinion clear about [the statutory provision] and I am going to follow the law but I’m going to be very strict on these cases, as strict as I can be on these cases because this is one area of the law I just think — as I said, I think it wreaks [sic] of pretextuality. ... In this case it hasn’t been shown to me that [the tag light] was out because based on the picture that the Defendant entered but at any rate I am . . . granting the Motion.

In the instant case, the trial judge readily conceded his personal dislike for OCGA § 40-8-23 (d) and disdain for pretextual stops, but also explicitly acknowledged that where an officer observes a traffic violation, an ensuing stop is lawful. The trial judge repeatedly vowed to follow the law; he reviewed the statutory provision and examined evidence adduced, noting in particular that the officer’s credibility was at issue. Although we disagree with the state that the trial court was required to issue a ruling in its favor, we agree that certain of the trial judge’s remarks indicate that the grant of the motion may have resulted at least in part from the state’s failure to meet the trial judge’s own preferred test. As this court has held:

[I]t is not the role of a judge to “interpret” constitutional or statutory provisions through the prism of his or her own personal policy preferences. A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies), as well as with faithfully following the precedents established by higher courts. And in failing to adhere to these constraints, [a] trial court clearly err[s].

Decided July 13, 2016.

Sandra N. Wisenbaker, Solicitor-General, Amy B. Godfrey, K. Danielle Sewell, Assistant Solicitors-General, for appellant.

Stein & Ward, George A. Stein, T. Kevin Mooney, for appellee.

Given these circumstances, we vacate the trial court’s order granting the motion to suppress and remand the case for the trial court to consider whether the state carried its burden as imposed under Georgia law.

Judgment vacated and case remanded with direction.

Dillard and Peterson, JJ., concur.

        State v. Massa, 273 Ga. App. 596, 597 (615 SE2d 652) (2005), citing OCGA § 17-5-30 (b).

        State v. Allen, 298 Ga. 1, 2 (1) (a) (779 SE2d 248) (2015) (citation and punctuation omitted).

        State v. Able, 321 Ga. App. 632 (742 SE2d 149) (2013) (citation, punctuation and footnote omitted).

        Edenfield v. State, 293 Ga. 370, 374 (2), n. 6 (744 SE2d 738) (2013).

        Able, supra at 632-633.

       (Record citations omitted.)

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994), cited in Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015).

        Tate, supra at 56 (3), cited in Hughes, supra at 747 (1); see also State v. Hester, 268 Ga. App. 501, 505 (602 SE2d 271) (2004) (“The trial judge, like the jury, is the primary guardian of the rights of a citizen. An absolute rule requiring the trial judge to believe the witnesses called by the state would contradict the American system of justice.”).

        Brown v. State, 293 Ga. 787, 804 (3) (b) (2) (750 SE2d 148) (2013), citing Tate, supra at 56 and n. 5.

       See Tolbert v. State, 298 Ga. 147, 151 (2) (a) (780 SE2d 298) (2015), citing Brown, supra at 803 (3) (b) (2), for the principle that “in the context of appellate review of grant of motion to suppress, . . . deference to the fact-finding prerogative of the trial court requires an appellate court to view the evidence in the light most favorable to the findings and decision of the trial court”).

       But see Division 2, infra (considering whether trial judge’s remarks at suppression hearing demonstrate that trial judge employed inapplicable test).

       See Hughes, supra (explaining that on review of motions to suppress, we generally “assume that trial judges have done their job, and . . . presume that the absence of a finding of a fact that would tend to undermine the conclusion of the trial court reflects a considered choice to reject the.evidence.offered to provethat fact”); Barnett v. State, 204 Ga.App. 491, 492 (1) (420 SE2d 43) (1992) (analyzing that the trial court, “perforce of its ruling on the suppression motion,” made credibility determination) (cited in Tate, supra at 57 (3) and n. 6, as an example of the way reviewing courts “interpret” judicial orders in cases where the trial court, as Tate ascertained, did not make specific findings); see also Massa, supra at 597 (determining that, although the trial court did not explicitly reject the officer’s testimony, the trial court’s findings of fact and case law cited “suggest [ed] that the trial court had rejected the officer’s testimony” that underlay the state’s claim that the officer’s intrusion was authorized); Hester, supra at 504 (ascertaining that the trial court chose to disbelieve the officer’s testimony, where the trial court granted the suppression motion, even though the state presented an officer’s testimony, which, “[i]f believed by the trial court, . .. would [have been] more than adequate to justify” the traffic stop); see generally Miller v. State, 288 Ga. 286, 289-290 (2) (702 SE2d 888) (2010) (concluding that, where the “trial court explicitly questioned the bases presented as the purpose for the stop of [the accused],” “credibility determinations played a significant part in the trial court’s [suppression] ruling,” and thus, “[t]his credibility question lies at the very core of the trial court’s ruling, and it should not be negated by [the appellate court]”). Accord Tolbert, supra at 152 (2) (b) (“Our obligation to view the evidentiary record in the light most favorable to the findings and judgment of the trial court requires us to assume that the trial court in this case rejected the credibility of [the officer] to the extent that [the officer’s] testimony is inconsistent with its decision.”), citing Hughes, supra.

       See Tate, supra at 55-56 (2) and n. 5 (noting an issue of credibility concerningthe officer’s testimony was created, where such testimony was considered in light of other “circumstantial evidence” that was presented at hearing; further enumerating “demeanor” as a factor that can lead a finder of fact to disregard testimony by an officer that an accused was violating the law; and concluding that “ [a] rational trier of fact could believe that [the officer’s] testimony was not truthful and that the officer was claiming that [the accused] broke the law in order to justify an illegal stop”); Massa, supra; Hester, supra at 506 (affirming the grant of suppression motion, where the trial judge disbelieved the officer’s testimony that underlay the state’s claim that the traffic stop was justified; reiterating that “when no error of law appears on the record, and the trial court’s ruling is based on the credibility of the oral testimony presented at the hearing, [an appellate court] must... leave the decision to the trial judge as the trier of fact”); Barnett, supra. See also Miller, supra.

       (Emphasis supplied.)

       See generally Carnes v. State, 293 Ga. App. 549, 550 (667 SE2d 620) (2008) (holdingthat the initial traffic stop was justified by probable cause, where the officer observed a traffic violation — “regardless of the officer’s subjective intent”); Navicky v. State, 245 Ga. App. 284, 285 (1) (537 SE2d 740) (2000) (“When an officer sees a traffic offense occur, a resulting traffic stop does not violate the Fourth Amendment even if the officer has ulterior motives in initiating the stop.”) (punctuation and footnote omitted).

       See Division 1, supra.

        Able, supra at 636 (footnotes omitted).

       See generally id. at 634-636 (vacating grant of motion to suppress evidence seized when police entered residence, where the only conclusion to be drawn from the comments made by the judge at the motion hearing — and where the appellate record was “otherwise silent” — was that the grant was based on the trial judge’s general dislike for (lawful) procedures employed by the police). Cf. State v. Carden, 281 Ga. App. 886, 890-891 (2) (637 SE2d 493) (2006) (rejecting state’s contention that the decision resulted from the trial judge’s personal disdain of a statutory provision, where the state failed to overcome the presumption that the trial judge sifts the wheat from the chaff, because although trial judge remarked that he “hate[d]” such statutory provision “to the bottom of [his] shoes, ” the trial judge further put on record his reason for rendering the decision, and that decision was supported by the evidence); Merka v. State, 201 Ga. App. 471-472 (1) (411 SE2d 357) (1991) (rejecting defendant’s contention that the trial court erred by allowing “personal feelings of dislike” for his co-defendant to prejudice its decision, where the trial judge’s remarks — “[I] would frankly, have a hard time believing anything [that co-defendant] said, under oath and otherwise” and that “[I] wouldn’t believe anything [co-defendant] says on a stack of Bibles up here” — indicated only that the trial court was fulfilling its duty of evaluating the alleged accomplice’s credibility) (punctuation omitted).