text:
    A16A0388.
    McGHEE v. THE STATE.
    (786 SE2d 527)
   Dillard, Judge.

Following a trial by jury, Onza McGhee was convicted of possession of cocaine with the intent to distribute, criminal attempt to commit the sale of cocaine, and use of a communication facility in facilitating a commission of a felony criminal act. McGhee’s sole contention on appeal from these convictions is that the trial court erred in refusing to require the State to reveal the identity of a confidential participant informer. For the reasons set forth infra, we affirm.

At the outset, we note that the suppression by the State of evidence favorable to an accused upon request “violates due process [when] the evidence is material either to guilt or to punishment^]” And when the source of evidence that is favorable to an accused comes from a confidential informant, Brady’s protections can conflict with the State’s “privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.” Thus, when a defendant files a motion seeking disclosure of a confidential informant’s identity, one of these two competing interests must yield.

In order to resolve the foregoing conflict, a trial court must balance “the public interest in protecting the flow of information against the individual’s right to prepare his defense.” And a defendant who seeks the disclosure of an informant’s identity “bears the burden of showing the relevance, materiality, and necessity of evidence only the informant can provide.” But if the State proves to the trial court’s satisfaction that the informer is purely a tipster who “neither participated in nor witnessed the offense, then disclosure of his identity is not required.” However, if the informer witnessed or participated in the offense, whether his identity must be disclosed depends upon “the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.”

Indeed, the trial court must conduct a two-step hearing, first considering evidence to determine

(a) that the confidential informant is an alleged informer-witness or informer-participant whose testimony appears to be material to the defense on the issue of guilt or punishment; (b) that the testimony for the prosecution and the defense is or will be in conflict; and (c) that the confidential informant was the only available witness who could amplify or contradict the testimony of these witnesses.

If this threshold is met, the trial court must then hold an in-camera hearing of the confidential informant’s testimony, after which the court should “weigh the materiality of the informer’s identity to the defense against the State’s privilege not to disclose his name under Rouiaro.”

On appeal, McGhee argues that the informant was “a participant-informer and not a mere tipster” and, thus, that the trial court “committed reversible error in not requiring the State to reveal the identity of the informer.” We disagree.

Testimony established that on February 11, 2013, the confidential informer (“Cl”) contacted a Hall County law-enforcement officer and told the officer that the Cl could order cocaine from a man named Marco, which is McGhee’s nickname. The officer instructed the Cl to make a call ordering two ounces of cocaine, and the officer overheard the call by speaker phone. The Cl was then transported by law enforcement to the agreed upon Hall County location for the drug transaction. Again on speaker phone and in the presence of law enforcement, the Cl called McGhee and asked him to walk to a nearby gas station. The Cl identified McGhee to law enforcement as the person to whom he was speaking on the phone.

After receiving this evidence, the trial court concluded that the Cl was a mere tipster. At trial, additional evidence revealed that McGhee was detained after he entered the gas station, briefly went into the restroom, and emerged. Law enforcement located a quantity of cocaine dropped by McGhee on the gas-station floor. A larger quantity of cocaine was located in the trash can of the gas-station bathroom. McGhee was thereafter charged with the offenses enumerated supra, in addition to a charge of trafficking cocaine. The jury could not reach a verdict as to the charge for trafficking, and the trial court declared a mistrial on that count, but McGhee was convicted of the remaining counts. This appeal by McGhee follows, in which he asserts that the trial court should have required the State to reveal the Cl’s identity.

As an initial matter, we agree with McGhee that the trial court erred in determining that the Cl was a mere tipster when he was charged with the use of a communication facility (a cell phone) in facilitating the commission of a felony (criminal attempt to commit sale of cocaine) and with the criminal attempt to commit sale of cocaine. Both of these crimes involved the Cl’s participation because the Cl was the individual who placed the calls to McGhee to purportedly attempt a purchase of cocaine. And because the State chose to prosecute McGhee for crimes that directly involved the Cl’s participation, this case is distinguishable from Little v. State, upon which the State relies on appeal and in which the Cl was no more than a tipster when the defendant was only charged with and convicted of trafficking in methamphetamine.

Nevertheless, McGhee failed to establish the other threshold requirements that would have required the court to conduct an in-camera hearing of the Cl’s testimony. Namely, McGhee did not present any conflicting evidence in his defense, including evidence of what he claimed during the motion hearing would be a defense of entrapment. In short, because McGhee gave no indication of how the testimony of the Cl would benefit his defense, and because McGhee presented no evidence of entrapment, the trial court did not err in denying his motion to reveal the Cl’s identity.

Decided May 18, 2016.

Jackie G. Patterson, for appellant.

Lee Darragh, District Attorney, Hugh M. Hamilton, Assistant District Attorney, for appellee.

Accordingly, for all of the foregoing reasons, we affirm.

Judgment affirmed.

Phipps, P. J., and Peterson, J., concur.

        Brady v. Maryland, 373 U. S. 83, 87 (83 SCt 1194, 10 LE2d 215) (1963); accord Griffiths v. State, 283 Ga. App. 176, 177 (1) (641 SE2d 169) (2006).

        Roviaro v. United States, 353 U. S. 53, 59 (I) (77 SCt 623, 1 LE2d 639) (1957); accord Griffiths, 283 Ga. App. at 177 (1).

        Griffiths, 283 Ga. App. at 177 (1).

        Roviaro, 353 U. S. at 62 (I); accord Griffiths, 283 Ga. App. at 177 (1).

         Griffiths, 283 Ga. App. at 177 (1).

        Griffiths, 283 Ga. App. at 177 (1) (punctuation omitted); see also Cauley v. State, 287 Ga. App. 701, 704 (2) (652 SE2d 586) (2007) (“Having received no evidence that the informant witnessed or participated in the placement of the drugs and drug paraphernalia in [the defendant’s] vehicle, the trial court reasonably concluded that the caller was a mere tipster and not a material or necessary witness. After such a determination has been made, no further inquiry by the trial court is required.” (punctuation and emphasis omitted)).

        Roviaro, 353 U. S. at 62 (I).

        Hernandez v. State, 291 Ga. App. 562, 569 (3) (662 SE2d 325) (2008) (punctuation omitted); accord Browner v. State, 265 Ga. App. 788, 791-92 (2) (595 SE2d 610) (2004); Grant v. State, 230 Ga. App. 330, 331 (1) (496 SE2d 325) (1998).

        Hernandez, 291 Ga. App. at 569 (3) (punctuation omitted); see also Browner, 265 Ga. App. at 792 (2) (“Once this threshold has been met, the trial court must conduct an in camera hearing of the Cl’s testimony. . . .”).

       McGhee’s brief fails to comply with the rules of this Court, which require that an appellant’s brief contain “a succinct and accurate statement of the proceedings below and the material facts relevant to the appeal and the citation of such parts of the record or transcript essential to a consideration of the errors complained of, and a statement of the method by which each enumeration of error was preserved for consideration” and “argument and citation of authorities.” Court of Appeals Rule 25 (a) (1), (3). Rather than a succinct statement of the relevant material facts, McGhee’s brief contains a six-page retyped transcription of the motion hearing and a twelve-line block quote of the trial court’s ruling on the motion. As for argument and citation to legal authority, this portion of the brief consists of a single page that directly quotes three paragraphs from Roviaro v. United States, 353 U. S. 53 (77 SCt 623, 1 LE2d 639) (1957). McGhee’s only other citation to authority follows these paragraphs in the form of a see citation to a 1988 Court of Appeals opinion, for which he provides no context, discussion, or even a parenthetical. Suffice it to say, the lack of legal analysis in McGhee’s brief did little to aid our review. We remind McGhee’s counsel that our rules are designed to assist the Court in fully considering the merits of the appellant’s arguments.

        Cf. Griffiths, 283 Ga. App. at 178-80 (1) (affirming denial of motion to reveal Cl’s identity when defendant was charged with and convicted of trafficking in cocaine, possessing cocaine with intent to distribute, and using a communication facility to commit a felony drug offense; although Cl introduced defendant to undercover officer and “negotiated the terms of the cocaine purchase,” defendant and the undercover officer spoke on the phone repeatedly leading up to meeting to conduct sale of cocaine).

       280 Ga. App. 60 (633 SE2d 403) (2006).

        See id. at 61, 61-62 (1) (holding that Cl was a mere tipster when, “although the informant arranged the sale by telephone, there is no evidence that she actually participated in the transaction in the parking lot,” during which officer approached defendant’s car alone, noticed drug paraphernalia in plain view, received defendant’s consent to search the vehicle, and located “151 grams of methamphetamine in two backpacks” and numerous drug-related items); see also Turner v. State, 247 Ga. App. 775, 777 (2) (544 SE2d 765) (2001) (“[The defendant] was indicted for possessing with intent to distribute the cocaine found in his living room. He was not charged with selling cocaine to the confidential informant. The informant was not present during the search and arrest and was neither a participant in nor a witness to the specific offense with which [the defendant] was charged. His testimony would not have been material to the issue of [the defendant’s] guilt or punishment.”).

        See Respress v. State, 267 Ga. App. 654, 656 (2) (600 SE2d 727) (2004) (“[AJlthoughthe confidential informant was an informer-witness and/or an informer-participant, the State’s evidence and [the defendant’s] evidence did not conflict, as [the defendant] introduced no evidence.”). Cf. Sorrells v. State, 326 Ga. App. 888, 897-98 (2) (b) (755 SE2d 586) (2014) (physical precedent only) (“The record here shows that, contrary to the trial court’s determination otherwise, the threshold requirements for an in camera hearing were satisfied. Because the confidential informant participated in the drug transaction, his testimony appears material to [the] defense of misidentification; the testimony presented by the prosecution was in conflict with that presented by [the defendant]; and the confidential informant was the only available witness to the transaction who could have amplified or contradicted the testimony of the [SJtate’s witnesses concerningthe seller’s identity.” (emphasis omitted)); Little v. State, 230 Ga. App. 803, 809 (3) (498 SE2d 284) (1998) (“[T]he threshold issues were met of showing that the confidential informant was an informer-witness or informer-participant; that there was a conflict between the testimony of the police officer and [a defense witness] as to the defendant’s guilt; and that the confidential informant was the only available witness who could amplify or contradict their testimony.”); Moore v. State, 187 Ga. App. 387, 392 (2) (370 SE2d 511) (1988) (“[T]he appellant testified in his own defense and the informer’s testimony reasonably can be expected to directly support or refute his testimony. Thus, the expected informant’s testimony would not merely be impeaching in nature.”).

        See Hill v. State, 261 Ga. 377, 377 (405 SE2d 258) (1991) (“[There are] three distinct elements that embody the entrapment defense: (1) the idea for the commission of the crime must originate with the [S]tate agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. After a defendant presents a prima facie case of entrapment, the burden is on the [S]tate to disprove entrapment beyond a reasonable doubt.” (citation and punctuation omitted)); see also Graves v. State, 274 Ga. App. 855, 856 (2) (619 SE2d 356) (2005) (“When a defendant raises the defense of entrapment and testifies to it at trial, the State has the burden of disproving the defense beyond a reasonable doubt. Determining whether the State has done so rests with the jury.” (punctuation omitted)).

        See State v. Royal, 247 Ga. 309, 313 (2) (275 SE2d 646) (1981) (holding that court did not err in failing to disclose identity of confidential informant when, aside from defendant’s failure to present evidence to sustain charge that defense of entrapment rested on allegations only the informant could confirm or deny, defense counsel made no statement nor gave any indication as to how informant’s testimony would benefit defendant); May v. State, 179 Ga. App. 736, 738 (3) (348 SE2d 61) (1986) (“In the case at bar, no factors mitigating in favor of disclosure were presented to the trial court. Appellant made no statement nor gave any indication as to how the testimony of the informant would benefit the defendant, nor did he indicate that he intended to rely upon a defense of entrapment. In point of fact, appellant did not present an entrapment defense, relying instead upon a general denial of involvement.” (citation and punctuation omitted)).


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A16A0430.
    KIM v. THE STATE.
    (786 SE2d 532)
   MILLER, Presiding Judge.

Following a traffic accident in DeKalb County, Robert Jin Kim was convicted of DUI less safe (OCGA § 40-6-391), and failure to maintain his lane (OCGA § 40-6-48). He now appeals, arguing that the trial court erred by admitting evidence of his DUI conviction from 2010 under OCGA § 24-4-403 (“Rule 403”). After review, we affirm.

According to the evidence adduced at trial, in December 2010, a Gwinnett County police officer was on routine patrol at about 1:40 a.m. when he observed a car stopped at a traffic light. The driver, later identified as Kim, appeared to be asleep or passed out and did not move during the traffic light’s cycle. The officer approached the car, knocked on the glass, and awoke Kim. The officer could smell alcohol on Kim’s breath and in the car, and Kim’s speech was mumbled and slurred. After Kim agreed to participate in field sobriety tests, he exhibited four out of six clues on the horizontal gaze nystagmus (HGN) test, five out of eight clues on the walk-and-turn test, and three clues on the one-leg stand. When asked, Kim agreed to take an alco-sensor test, which was positive for alcohol. Based on these results, the officer arrested Kim and read him the implied consent notice. Kim consented to a state-administered breath test. Kim’s alcohol concentration was 0.125 grams, well above the 0.08 legal limit.

On a different occasion, on August 22, 2014, another officer responded to an accident in which a car had struck the median wall in DeKalb County. He approached the car and knocked on the window. When the officer spoke to Kim, he immediately smelled alcohol. He asked if Kim had been drinking, and Kim responded that he had not. Kim was able to recite his ABCs and engage in conversation, and his face and speech were normal. Kim’s eyes, however, were bloodshot and watery, and he appeared sleepy. The officer asked Kim to participate in field sobriety tests, and Kim agreed. Kim exhibited all six clues in the HGN test. Kim, however, was unable to complete the walk-and-turn test due to an ACL injury After conducting the tests, the officer again asked Kim if he had been drinking, and this time Kim admitted that he had a couple of shots after he finished work. Based on the HGN test results, Kim’s bloodshot and watery eyes, his inability to complete the field sobriety tests, the accident, Kim’s admission that he had been drinking, and the smell of alcohol, the officer concluded that Kim was intoxicated, and he placed Kim under arrest. The officer read Kim the implied consent notice, and Kim refused to take a state-administered breath test.

Prior to trial, the State notified Kim that it intended to introduce evidence of his 2010 DUI conviction. Kim objected on the grounds that the evidence was inadmissible as a “prior act,” and that the prejudicial effect outweighed any probative value under Rule 403. The trial court concluded that the evidence was admissible, specifically finding that the probative value outweighed any prejudicial effect because it explained Kim’s understanding of his choice to take or refuse the field sobriety and state-administered chemical tests. The trial court, however, agreed to issue a limiting instruction to the jury on the use of this evidence.

After the State referred to Kim’s 2010 conviction during opening statements, but before the State’s first witness testified about the 2010 incident, the trial court instructed the jury that Kim’s prior conviction was admissible only to show that he had knowledge of the potential consequences of participating in field sobriety tests and the state-administered chemical test, and that it was not to be used to determine Kim’s character for committing DUI. In closing argument, the State again mentioned Kim’s prior conviction, stating:

And he says he has an ACL injury, but we know what happened the last time he performed the field sobriety evaluations. . . . He performed them and he was arrested. And he knows that. So his ACL injury may be more in line with the fact that he knows he’s going to get arrested for DUI, just like last time.

In charging the jury after the close of evidence, the trial court instructed the jury that Kim’s prior conviction could be considered for the limited purpose of knowledge and specifically instructed them not to infer character to commit the offense of DUI.

In his sole enumeration of error, Kim argues that the trial court erred in admitting evidence of his prior DUI conviction, even though such convictions are generally admissible under OCGA § 24-4-417 (“Rule 417”), because the facts of the prior conviction were more prejudicial than probative under Rule 403. We discern no error.

“[T]he admission of evidence is a matter which rests largely within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion.” (Citation omitted.) Barclay v. State, 306 Ga. App. 766, 766 (702 SE2d 907) (2010).

Under Georgia law, evidence of a prior DUI charge “shall be admissible” in a DUI prosecution where the defendant refused to take the state-administered chemical test to show “knowledge, plan, or absence of mistake or accident.” See OCGA § 24-4-417 (a) (1); see also State v. Frost, 297 Ga. 296, 301 (773 SE2d 700) (2015). In upholding the admission of prior DUI convictions under Rule 417, the Supreme Court of Georgia specifically declined to address the issue presented in this case — that is, whether the balancing test in Rule 403 applies to the admission of evidence under Rule 417 (a) (1). Frost, supra, 297 Ga. at 301 n. 6.

Under OCGA § 24-4-403, which mirrors Federal Rule of Evidence 403, “[rjelevant evidence maybe excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” OCGA § 24-4-403; see also Curry v. State, 330 Ga. App. 610, 614 (1), n. 8 (768 SE2d 791) (2015). Presuming without deciding that Rule 403 applies to evidence admitted under Rule 417 (a) (1), the trial court properly admitted the evidence.

As this Court has explained,

the plain meaning of OCGA § 24-4-403’s text makes clear that the trial court may only exclude relevant evidence when its probative value is substantially outweighed by one of the designatedconcerns. Indeed, the Eleventh Circuit has described Rule 403 as an extraordinary remedy which the courts should invoke sparingly, and the balance should be struck in favor of admissibility Obviously, the reason for such caution is that relevant evidence in a criminal trial is inherently prejudicial, and, as a result, Rule 403 permits exclusion only when unfair prejudice substantially outweighs probative value. The primary function of Rule 403, then, is to exclude evidence of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.

(Punctuation and footnotes omitted.) Williams v. State, 328 Ga. App. 876, 879 (1) (763 SE2d 261) (2014). The Supreme Court of Georgia has cautioned that “there is no mechanical solution for this balancing test. Instead, a trial court must undertake in each case a considered evaluation of the proffered justification for the admission of such evidence and make an independent determination” of the prejudicial and probative value. State v. Jones, 297 Ga. 156, 163 (3) (773 SE2d 170) (2015). This evaluation “calls for a common sense assessment of all the circumstances surrounding the [prior conviction], including... overall similarity” between the two offenses. (Citation omitted.) Jones v. State, 335 Ga. App. 563, 564 (782 SE2d 466) (2016).

The trial court here admitted Kim’s prior DUI conviction because it was relevant to the issue of Kim’s knowledge of the consequences of both consenting to and refusing the tests, and its probative value outweighed any prejudice. We agree. The facts of the prior DUI stop and the field sobriety tests were relevant to assist the jury in evaluating whether Kim understood the implied consent testing and the potential outcome of taking or refusing these tests. Because these two incidents were factually similar, the jury was able to consider Kim’s knowledge of the testing procedure and the consequences of his decisions.

In so concluding, we are reminded that Rule 403 is “an extraordinary remedy which the courts should invoke sparingly” (Punctuation omitted.) Williams, supra, 328 Ga. App. at 879 (1). Even in close cases, courts should strike the balance in favor of admissibility See Jones, supra, 297 Ga. at 164 (3). Accordingly, we find that the trial court properly admitted the prior conviction even if it was subject to Rule 403’s balancing test.

Decided May 18, 2016.

Giannini & Yates, Robert R. Giannini, C. Allen Yates, for appellant.

Sherry Boston, Solicitor-General, Wystan B. Getz, William A. Richardson, Assistant Solicitors-General, for appellee.

Moreover, the trial court gave the jury a limiting instruction during the trial when the first officer testified and again in the jury charge. “[Qjualified jurors under oath are presumed to follow the instructions given by the trial court.” State v. Johnson, 280 Ga. 511, 513 (630 SE2d 377) (2006); Cf. Eubanks v. State, 332 Ga. App. 568, 569-570 (1) (774 SE2d 146) (2015) (noting that the trial court gave limiting instructions on the admission of a prior conviction in a child molestation case, which has a comparable federal statute, thus minimizing the risk of prejudice). Accordingly, based on these facts, Kim’s convictions are affirmed.

Judgment affirmed.

Doyle, C. J., and Ray, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       The trial court instructed the jury as follows:
      Sometimes evidence is presented for a limited purpose and in that case that may be only for that particular purpose. In this trial there may be evidence presented that the Defendant was previously convicted of driving under the influence of alcohol. You may consider that evidence solely for the purpose of determining whether or not the circumstances of that prior case showed that the Defendant had knowledge of the potential consequences of participating in the field sobriety exercises and in taking the State administered breath test. You may not consider such evidence for any other purpose. Specifically, you may not consider such evidence for concluding that the Defendant is of a character of committing the offense of driving under the influence of alcohol. You are to consider all of the evidence in this case in reaching your decision and in doing so you may find that the Defendant’s refusal, if any, to participate in some of the requested tests was for some reason other than his prior experience. That is for you alone to determine what weight, if any, you give the Defendant’s prior experience, but any such or any consideration of such evidence must be strictly — limited to the question of relevant knowledge, as I previously explained.

       The Supreme Court noted that Rule 417 (a) (1) applies only in DUI prosecutions and even then only where the defendant refused to take the state- administered test. Frost, supra, 297 Ga. at 301. The Supreme Court further noted that admission of evidence under Rule 417 was less expansive than the admission of prior acts under OCGA § 24-4-404 (b). Id. at 301-302.

       Ordinarily, we would look to the comparable evidentiary provision under federal law for guidance. See Frost, supra, 297 Ga. at 299. There is no comparable federal provision for OCGA § 24-4-417. Id. at 300, n. 3.

       See Paul S. Milich, Ga. Rules of Evidence § 11:16, n. 8 (2015) (discussing the applicability of Rule 403 to Rule 417 and opining that Rule 403 should apply).


author: Dillard, Judge.

text:
    A16A0478.
    PEDERSEN v. THE STATE.
    (786 SE2d 535)
   Dillard, Judge.

Following trial, a jury convicted Erick Pedersen on one count of operating a moving vessel under the influence of alcohol to the extent that it was less safe for him to do so (“boating under the influence” or “BUI”) and three counts of endangering a child by operating a moving vessel under the influence of alcohol. On appeal, Pedersen contends that the trial court erred in denying his motion to suppress the results of the field-sobriety tests, specifically arguing that he was in custody when the tests were conducted for purposes of Miranda v. Arizona and was not advised of his right against self-incrimination. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on May 5, 2012, an officer with the Georgia Department of Natural Resources (“DNR”) was patrolling Lake Lanier well after sunset when he observed a pontoon boat operating with its docking lights improperly illuminated such that its navigation lights were not clearly visible to other vessels. Consequently, the DNR officer maneuvered his boat toward the pontoon boat and ordered its operator, Pedersen, to stop so that he could discuss the violation with him and conduct a brief safety inspection. Upon boarding Pedersen’s boat, the officer observed that, in addition to Pedersen, there were several other passengers, including three children. And in speaking with Pedersen, the officer noticed that his eyes were red, his speech was somewhat slurred, and his balance was poor. The officer also smelled the odor of an alcoholic beverage emanating from Pedersen. As a result, the officer asked if he had been drinking, and Pedersen admitted to having two alcoholic beverages earlier that day

At that point, the DNR officer asked Pedersen to don a life-vest and step onto the officer’s vessel, so that the officer could conduct field-sobriety tests. Pedersen complied, and thereafter, the officer administered several field-sobriety tests, including the horizontal gaze nystagmus (HGN) test, reciting the alphabet, counting to twenty forward and backward, and a finger dexterity test. Pedersen exhibited signs of impairment after each test, and when the portable alco-sensor test returned a positive result, the officer informed Ped-ersen that he was placing him under arrest for operating a vessel under the influence of alcohol. The officer then read Georgia’s implied consent law, but Pedersen refused to take the state-administered breath test.

Following his arrest, the State charged Pedersen, via accusation, with one count of operating a moving water vessel under the influence of alcohol to the extent that it was less safe for him to do so (“BUI less safe”), three counts of endangering a child by operating a moving vessel or personal watercraft under the influence of alcohol, and one count of operating a vessel without the required lights. Not long thereafter, Pedersen filed a motion to suppress the evidence garnered as a result of the field-sobriety tests, arguing, inter alia, that he was in custody when the tests were conducted and, therefore, should have been advised of his rights under Miranda prior to being subjected to the tests. The State filed a response, and after holding an evidentiary hearing on the issue, in which only the DNR officer testified, the trial court denied Pedersen’s motion.

Subsequently, the matter proceeded to a trial before a jury, in which the only evidence presented was the DNR officer’s testimony and the audio/video recording of the officer’s interaction with Peder-sen that evening. And at the conclusion of the trial, the jury found Pedersen guilty on the charges for BUI less safe and endangering a child by operating a moving vessel or personal watercraft under the influence of alcohol. Pedersen then filed a motion for new trial, which the trial court also denied. This appeal follows.

At the outset, we note that when the facts material to a motion to suppress are disputed, “it generally is for the trial judge to resolve those disputes and determine the material facts.” This principle is well established, and our Supreme Court has identified “three corollaries of the principle, which limit the scope of review in appeals from a grant or denial of a motion to suppress in which the trial court has made express findings of disputed facts.” An appellate court generally must (1) accept a trial court’s findings unless they are clearly erroneous, (2) construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court, and (3) limit its consideration of the disputed facts to those expressly found by the trial court. However, we review de novo the trial court’s “application of law to the undisputed facts.” With these guiding principles in mind, we turn now to Pedersen’s claim of error.

As noted supra, Pedersen contends that the trial court erred in denying his motion to suppress the evidence garnered as a result of stopping his boat, arguing that he was in custody when the field-sobriety tests were conducted and, thus, should have been advised of his Miranda rights. We disagree.

In Georgia, it is well established that during the course of an investigation, a law-enforcement officer may temporarily detain an individual and that this type of detention does not normally trigger the protections of Miranda. Indeed, with respect to a DUI investigation in particular, Miranda warnings are generally not required “while an investigating officer conducts preliminary questioning or field sobriety tests.” But once a DUI suspect is in custody, Miranda warnings must “precede further field sobriety tests in order for evidence of the results to be admissible.” To that end, when analyzing whether a suspect is in custody, the relevant inquiry is “whether, under the circumstances, a reasonable person would conclude that his or her freedom of action was only temporarily curtailed and that a final determination of his or her status was merely delayed.” A reasonable person is “one neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.” And importantly, a detained individual is “not under arrest simply because, by leaving, he could be arrested for violating state law.” In addition, the subjective belief of an officer that “he or she may have probable cause to arrest a suspect is wholly irrelevant in the absence of an overt step to communicate that belief.” In fact, in the absence of an officer making a statement that

would cause a reasonable person to believe that he was under arrest—as opposed to being temporarily detained— during an investigation, the officer’s subjective belief that probable cause exists to make an arrest does not determine when the arrest is effectuated until the officer overtly acts so that a reasonable person would believe he was under arrest.

Applying these principles to this matter, we conclude that the trial court did not err in finding that Pedersen was not in custody for purposes of Miranda at the time the field-sobriety tests were conducted. As previously noted, the DNR officer stopped the pontoon boat because he believed Pedersen was operating the boat at night with its docking lights improperly illuminated such that its navigation lights were not clearly visible to other vessels. And during his brief safety inspection, the officer observed that Pedersen was possibly under the influence of alcohol.

Decided May 18, 2016

Alan Mullinax & Associates, Alan Mullinax; Stepp Law, Zachary R. Stepp, for appellant.

Stephanie D. Woodard, Solicitor-General, Amber R. Sowers, Assistant Solicitor-General, for appellee.

Furthermore, although it is certainly true that Pedersen was not permitted to leave the DNR officer’s vessel during the course of the field-sobriety tests, there is nothing in the officer’s words, all of which were heard in the recording of the encounter, that would cause a reasonable person to conclude that Pedersen was more than temporarily detained pending the outcome of the investigation. In fact, at no time prior to the conclusion of the tests did the officer tell Pedersen that he was under arrest, and he never placed him in handcuffs. Given these particular circumstances, a reasonable person would conclude that the DNR officer was conducting field-sobriety testing for the very purpose of determining whether to take Pedersen into custody. And treatment of this nature cannot be fairly characterized as “the functional equivalent of [a] formal arrest.” Accordingly, the trial court did not err in denying Pedersen’s motion to suppress the results of the field-sobriety tests on the basis of a Miranda violation.

Judgment affirmed.

Phipps, P. J., and Peterson, J., concur.

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

        See U. S. Const. amend. V (“... nor shall any person ... be compelled in any criminal case to be a witness against himself.. ..”); Ga. Const. art. 1, § 1, ¶ 16 (“No person shall be compelled to give testimony tending in any manner to be self-incriminating.”).

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

        See OCGA § 52-7-11 (b) (2).

        See OCGA § 52-7-12 (a) (1).

        See OCGA § 52-7-12 (1).

        See OCGA § 52-7-11 (b) (2).

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

        Hughes, 296 Ga. at 746 (1).

        See id.

        See id.

        See id.

        State v. Conner, 322 Ga. App. 636, 637 (745 SE2d 837) (2013) (punctuation omitted).

        See Tolliver v. State, 273 Ga. 785, 786 (546 SE2d 525) (2001) (“[A] law enforcement officer coming upon the scene of suspected criminal activity will conduct a general on-the-scene investigation and may detain temporarily anyone at the scene. Such detentions do not trigger the requirements of Miranda v. Arizona.” (punctuation omitted)); Crider v. State, 319 Ga. App. 567, 568 (737 SE2d 344) (2013) (same).

         Crider, 319 Ga. App. at 568 (punctuation omitted).

        Id. (punctuation omitted).

        Hale v. State, 310 Ga. App. 363, 366 (1) (714 SE2d 19) (2011); see also Price v. State, 269 Ga. 222, 225 (3) (498 SE2d 262) (1998) (“The test of‘in custody’ is whether a reasonable person in the suspect’s position would have thought the detention would not be temporary.” (punctuation omitted)).

        Crider, 319 Ga. App. at 569 (punctuation omitted).

        State v. Mosley, 321 Ga. App. 236, 238-39 (739 SE2d 106) (2013) (punctuation omitted).

        Id. at 239.

        Id. (punctuation and emphasis omitted).

       We note that, similar to a police officer who witnesses a traffic violation, under OCGA § 52-7-25 (b) (4), a DNR officer “shall have the power . . . [t]o board vessels in use, for purposes of examining any documents and safety equipment, and to search without warrant any vessel which is not at its regular mooring or berth when he believes that any law of this state or any rule or regulation of the Board of Natural Resources relating to boating has been violated!.] ” See Peruzzi v. State, 275 Ga. 333, 334-35 (567 SE2d 15) (2002) (holdingthat statute.permittingDNR rangers to stop boats without any suspicion in order to examine documents and safety equipment was reasonable and did not violate the Fourth Amendment).

        Tolliver, 273 Ga. at 787 (punctuation omitted); see also Mosley, 321 Ga. App. at 239-40 (holding that defendant was not in custody for Miranda purposes when field-sobriety tests were conducted and when deputy responded in the negative to defendant’s question of whether he was under arrest and never placed defendant in handcuffs or in the back of a patrol car during the questioning); Appling v. State, 320 Ga. App. 379, 381-82 (739 SE2d 816) (2013) (same); Crider, 319 Ga. App. at 569 (same).


author: Rickman, Judge.

text:
    A16A0611.
    THE STATE v. JENNINGS.
    (786 SE2d 545)
   Rickman, Judge.

Tarrance Jennings was indicted for two counts each of aggravated assault, aggravated battery, and possession of a firearm during the commission of a crime. Jennings filed a motion to bar the prosecution on immunity grounds pursuant to OCGA § 16-3-24.2. Following a hearing, the trial court granted Jennings’s motion in part and denied it in part. The State appeals the partial grant of Jennings’s motion. We affirm.

“On appeal of an order granting or denying immunity under OCGA § 16-3-24.2, we review the evidence in the light most favorable to the trial court’s ruling, and we accept the trial court’s findings with regard to questions of fact and credibility if there is any evidence to support them.” (Citation and punctuation omitted.) State v. Sutton, 297 Ga. 222 (1) (773 SE2d 222) (2015).

Viewed in the light most favorable to the trial court’s ruling, the evidence presented at the hearing showed that in November 2013, Chadwick Finch called Jennings and asked him whether he had the money he owed Finch, then hung up. Minutes later, Finch called Jennings back and asked him where he was located. Jennings told Finch that he was on his way home, and that they could talk when he arrived. As Jennings was walking toward his home, Tareyton Robinson, Finch’s cousin, drove alongside Jennings and jumped out of the car. Robinson grabbed Jennings and Finch exited the car and helped Robinson drag Jennings into the back seat. Finch then drove the car as Robinson sat in the back seat with Jennings, choking and punching him. Robinson asked Jennings whether he had Finch’s money and threatened to kill Jennings.

Finch stopped the car outside a friend’s apartment and went inside while Robinson continued to choke and punch Jennings. When Finch returned, he and Robinson pulled Jennings out of the car. Jennings testified that he was lying on the ground next to the car, and that Robinson was on top of him and Finch was standing beside him. Robinson pinned Jennings’s arms down with his legs while Finch searched Jennings’s pockets. Robinson then resumed hitting Jennings and again threatened to kill him. When Robinson moved one of his legs, Jennings was able to reach into his sweatshirt, pull out his gun, and shoot Robinson. Finch then ran toward his friend’s apartment door, and Jennings shot him in the back.

Jennings testified that he shot Finch outside the apartment, and that Finch ran inside before falling down. Finch’s friend testified that Finch ran inside her apartment, and that Jennings followed him inside and shot him there. She also testified that Jennings came back into her apartment two more times and stood over Finch, pointing a gun at him.

After the shooting, Jennings threw the gun in the sewer and went to his grandmother’s house. He then called the police and told them that he wanted to turn himself in. Jennings gave a recorded statement to an officer with the City of Winder police department, and that statement was consistent with his hearing testimony. After Jennings gave his statement, the officer took photographs of injuries to his neck, knees, and face, scuff marks on his shoes, and a rip in his shirt.

Robinson testified that he was shot in his right eye and was in the hospital for nine months. He stated that he could not remember anything about the day he was shot.

Finch testified that he called Jennings because he was upset about the fact that Jennings owed him money, and that he and Robinson just happened to drive past Jennings. Finch stated that Robinson stopped the car, Jennings got in voluntarily, and Jennings and Robinson had a discussion in the back seat on the way to his friend’s apartment. Finch testified that when they arrived, he went and knocked on the apartment door. When he walked back out to the curb, he saw Robinson on top of Jennings on the ground. Jennings asked Finch to tell Robinson to get off of him, and Finch laughed and told them to “[cjhill out.” Finch said that Jennings and Robinson were not fighting, just “tussling on the ground.” When Finch heard a gunshot, he ran into the apartment and got about midway through it before he was shot in the back. After Finch had been shot, Jennings stood over him with the gun. Finch asked Jennings not to kill him, and Jennings responded that he would not.

The trial court ruled that Jennings “presented sufficient evidence to carry his burden of proving the reasonableness of his belief in the necessity of deadly force with respect to Robinson.” The court concluded that Jennings had not met his burden with respect to Finch. Accordingly, the trial court granted the motion to bar the prosecution with respect to those charges arising from injuries inflicted upon Robinson and denied it with respect to those charges arising from injuries inflicted upon Finch.

The State contends that the trial court’s finding that Jennings was justified in using force intended or likely to cause death or great bodily harm was not supported by the evidence. We disagree.

“[T]o avoid trial, a defendant bears the burden of showing that he is entitled to immunity under OCGA § 16-3-24.2 by a preponderance of the evidence.” Bunn v. State, 284 Ga. 410, 413 (3) (667 SE2d 605) (2008). “Preponderance of evidence”

means that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other. Nothing in this standard requires the elimination of all fact disputes as a matter of law. Rather, the standard requires only that the finder of fact be inclined by the evidence toward one side or the other.

(Punctuation and footnote omitted.) Thompson v. State, 327 Ga. App. 893, 895 (1) (761 SE2d 413) (2014).

A person who uses threats or force in accordance with OCGA § 16-3-21 “shall be immune from criminal prosecution therefor,” except in certain circumstances not at issue here. OCGA § 16-3-24.2. Pursuant to OCGA § 16-3-21 (a):

Aperson is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.

The State argues that Jennings’s testimony was not credible because his claims of assault were not supported by physical evidence of more severe injuries and because his testimony about where he shot Finch was contradicted by other witnesses. Witness credibility, however, is an issue for the trial court as the finder of fact, and we accept the trial court’s factual findings if there is any evidence to support them. State v. Yapo, 296 Ga. App. 158, 160 (2) (674 SE2d 44) (2009). Jennings’s testimony, which was corroborated in part by Finch, provided some evidence that his actions with respect to Robinson were justified under OCGA § 16-3-21 (a). See id. Construed in a light most favorable to the trial court’s ruling, with respect to injuries inflicted upon Robinson, “the evidence was sufficient for the trial court to determine that [Jennings] met his burden of proving that he was entitled to immunity from prosecution pursuant to OCGA § 16-3-24.2.” (Citation omitted.) State v. Green, 289 Ga. 802, 804 (1) (716 SE2d 194) (2011); see State v. Cooper, 324 Ga. App. 32, 34-35 (1) (749 SE2d 35) (2013) (evidence could be construed in a manner to support trial court’s conclusion that defendants’ actions were justified).

Decided May 18, 2016.

J. Bradley Smith, District Attorney, Candace K. Slezak, Assistant District Attorney, for appellant.

The Olson Law Office, William M. Olson, for appellee.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       Jennings filed an application for interlocutory appeal of the partial denial of his motion to bar the prosecution, which was granted. Upon revie w of the entire record, we conclude that the application was improvidently granted, and we dismiss his appeal by separate order. We nonetheless have jurisdiction to address the State’s cross-appeal. See State v. Yapo, 296 Ga. App. 158, 159 (1) (674 SE2d 44) (2009) (“When the ruling of the trial court is in substance a dismissal of the indictment, the State may appeal an order dismissing an indictment under OCGA § 5-7-1 (a) (1).”) (citation and punctuation omitted); Ga. Dept. of Transp. v. Douglas Asphalt Co., 297 Ga. App. 511, 513 (677 SE2d 728) (2009) (cross-appeal will survive dismissal of main appeal only where cross-appeal can stand on its own merit).


text:
    A16A0420.
    WHITFIELD v. THE STATE.
    (786 SE2d 547)
   Dillard, Judge.

Shane Whitfield appeals his conviction for possession of marijuana less than one ounce, arguing that the trial court erred in denying his pretrial motion to suppress evidence found during a search of his residence. Specifically, Whitfield—who was on probation and subject to a Fourth Amendment waiver at the time of the search—contends that the warrantless search of his residence was not supported by reasonable suspicion that he was violating the terms of his probation. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the trial court’s ruling, the evidence shows that in 2013, Whitfield entered a negotiated guilty plea to selling methylenedioxymethamphetamine and was sentenced to five years of probation. As one of the terms of his probation, Whitfield agreed to a Fourth Amendment waiver. Specifically, Whitfield agreed to

submit to search of person, residence, papers, vehicle, and/or effects at any time of day or night without a search warrant, whenever requested to do so by a [probation [o]fficer or any other law[-] enforcement officer upon reasonable cause to believe that [he] is in violation of probation or otherwise acting in violation of the law, and . . . [to] consent to the use of anything seized as evidence in any judicial proceeding or trial.

Subsequently, in March 2015, Whitfield tested positive for marijuana during a monthly check-in with his supervising probation officer. But during his next monthly check-in on April 6, 2015, Whitfield tested negative for marijuana. Although Whitfield’s April drug screen was negative, he told his probation officer that “he had been counting [the] days since his last use of marijuana and had been testing himself.” And according to the probation officer’s training, these actions are “two red flags for somebody trying to subvert any kind of testing or detection of use.” As a result of these “red flags,” as well as Whitfield’s positive drug screen the previous month, the probation officer asked another law-enforcement officer to “check-up” on Whitfield and “see what was at [his] house.” The probation officer also conveyed to the officer that Whitfield was subject to a Fourth Amendment waiver.

On April 9, 2015, three law-enforcement officers complied with the probation officer’s request and went to Whitfield’s residence. When they arrived, Whitfield was at work, but his mother answered the door. Upon greeting Whitfield’s mother, the officers asked her for permission to search Whitfield’s bedroom, and she then led them to his room. The officers then conducted a brief search of Whitfield’s bedroom and found a tobacco grinder next to his bed. Although no marijuana was plainly visible, the officer who found the grinder opened it and discovered marijuana inside.

Thereafter, Whitfield was charged, via accusation, with one count of possession of marijuana less than one ounce. Prior to trial, Whitfield filed a motion to suppress the evidence found during the search of his residence. In support of this motion, he argued that the officers’ entry into his home and the subsequent search of his bedroom were “without consent, probable cause, search warrant, lawful search incident-to-arrest or exigent circumstances,” and therefore, the search was unlawful. After a hearing on the matter, the trial court denied the motion. Later, on the same day of the suppression hearing, Whitfield proceeded to a stipulated bench trial after which the trial court found him guilty of the charged offense. This appeal follows.

At the outset, we note that in considering a trial court’s denial of a motion to suppress, we construe the evidence “in favor of the court’s ruling, and we review de novo the trial court’s application of the law to undisputed facts.” With these guiding principles in mind, we turn now to Whitfield’s claim of error.

Specifically, Whitfield argues that the trial court erred in denying his motion to suppress evidence because the warrantless search of his residence was not supported by reasonable suspicion that he was in violation of his probation. We disagree.

In accordance with the Fourth Amendment to the United States Constitution, a search warrant in Georgia may issue only upon “facts sufficient to show probable cause that a crime is being committed or has been committed . . . .” And the Supreme Court of Georgia has acknowledged that “the Fourth Amendment applies to probationers.” Nevertheless, although searches must usually be accompanied by a warrant and supported by probable cause to be reasonable, “exceptions have been permitted when ‘special needs,’ beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” Indeed, the supervision of probationers that is necessary to operate a probation system presents “special needs that may justify departures from the usual warrant and probable-cause requirements.”

In 2013, rather than face incarceration for the sale of methyl-enedioxymethamphetamine, Whitfield agreed to certain conditions of probation, including the F ourth Amendment waiver detailed supra. Further, by accepting this special condition of probation, “and to the extent a search and seizure was not otherwise tainted without subsequent attenuation so as to compel invocation of the exclusionary rule, [Whitfield] waived his Fourth Amendment right.” But even under such a waiver, there must still be “some conduct reasonably suggestive of criminal activity to ‘trigger’ the search.” This trigger can be prompted by “a good-faith suspicion, arising from routine police investigative work.” In sum, the general rule is that

the police can search a probationer, who is subject to such a special condition of probation, at any time, day or night, and with or without a warrant, provided there exists a reasonable or good-faith suspicion for [the] search, that is, the police must not merely be acting in bad faith or in an arbitrary and capricious manner (such as searching to harass probationer).

On appeal, Whitfield contends that the trial court erred by focusing on whether the officers who searched his home acted “in bad faith or in an arbitrary and capricious manner,” while glossing over the requirement that the search must be based on a reasonable suspicion that he was violating his probation. But to the contrary, the trial court’s order merely included the relevant legal authority set forth supra, which defines “a reasonable or good-faith suspicion for search” as meaning that “the police must not merely be acting in bad faith or in an arbitrary and capricious manner (such as searching to harass probationer),” and then summarily found that Whitfield failed to show that the search was “arbitrary, capricious, or intended to harass.” After setting forth the applicable precedent, the trial court expressly found that “the State had reasonable suspicion to suspect criminal activity or violations of probation,” and it thoroughly detailed the evidence upon which it relied in making this finding.

Specifically, the trial court found that Whitfield’s March 2015 drug exam was proof that he violated the terms of his probation by using an illicit substance. Although Whitfield proposed a categorical rule that a subsequent negative drug screen (such as the one he had in April 2015) “eviscerates” any reasonable suspicion of drug use based on an earlier positive drug screen, the trial court rejected that proposition, finding that “reasonable suspicion is more flexible and less exacting” than Whitfield contended. Regardless, the trial court did not rely solely on Whitfield’s positive drug screen in finding that the search of his residence was authorized. Indeed, the trial court also credited the probation officer’s testimony that, based on his training, Whitfield’s reports just days before the search that he had been self-testing and counting the days since he last used drugs were “red flags” indicating that he was trying to avoid detection of his drug use. While Whitfield disagrees with the foregoing testimony, we must defer to the trial court’s credibility determinations. Finally, it is worth noting that “input of the probation officer before a probationary search is a factor to consider in determining whether the search was reasonable and in good faith.” And here, not only did the probation officer provide input to the other officers who conducted the search, he actually requested the search based on his concerns—which were, in turn, based on his training—that Whitfield was using drugs and attempting to avoid detection.

In sum, keeping in mind that “the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous, and we must construe the evidence most favorably to the upholding of the trial court’s findings and judgment,” we conclude that, under the totality of the circumstances, the trial court did not err in determining that the law-enforcement officers who searched Whitfield’s home had reasonable suspicion to suspect criminal activity or violations of probation.

Decided May 19, 2016.

Lister & Holt, Timika W. Dennis, Zachary A. Taft, for appellant.

John A. Pipkin III, Solicitor-General, MaryGrace K. Bell, Assistant Solicitor-General, for appellee.

For all of the foregoing reasons, we affirm the trial court’s denial of Whitfield’s motion to suppress evidence.

Judgment affirmed.

Phipps, P. J., and Peterson, J., concur.

        See, e.g., Christian v. State, 329 Ga. App. 244, 245 (1) (764 SE2d 573) (2014).

       We note that, during the suppression hearing, the trial court stated that whether Whitfield’s mother gave valid consent for the search of his room was not at issue because the search in this case was not “a consent search,” but rather, it was a search “under the show of authority.” But in its order denying the motion to suppress, the court found that Whitfield’s mother did in fact consent to the officers’ initial entry into the home, and neither party challenges these findings on appeal.

        See OCGA § 16-13-30 (a) (“Except as authorized by this article, it is unlawful for any person to purchase, possess, or have under his or her control any controlled substance.”); OCGA § 16-13-2 (b) (“Notwithstanding any law to the contrary, any person who is charged with possession of marijuana, which possession is of one ounce or less, shall be guilty of a misdemeanor . . . .”).

       Although Whitfield’s written motion to suppress did not acknowledge his Fourth Amendment waiver or the legal standard that must be satisfied to authorize a search under such a waiver, he did so during oral argument before the trial court at the conclusion of the suppression hearing. Thus, he preserved the argument he now raises on appeal. See Brown v. State, 310 Ga. App. 835, 836 (1) (a) (714 SE2d 395) (2011) (“[A] party must make either a written or oral objection or motion timely prior to or at trial so that the trial court may rule upon the issue to preserve it, or such issue is waived and not preserved.” (punctuation omitted and emphasis supplied)).

         Minor v. State, 298 Ga. App. 391, 392 (680 SE2d 459) (2009) (punctuation omitted).

        See U. S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”); see also Ga. Const. art. 1, § 1, ¶ XIII (“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the place or places to be searched and the person or things to be seized.”).

       OCGA § 17-5-21 (a); see also Sullivan v. State, 284 Ga. 358, 360 (2) (667 SE2d 32) (2008); Manzione v. State, 312 Ga. App. 638, 639 (719 SE2d 533) (2011).

        Fox v. State, 272 Ga. 163, 165 (2) (527 SE2d 847) (2000); see also Griffin v. Wisconsin, 483 U. S. 868, 873 (II) (A) (107 SCt 3164, 97 LE2d 709) (1987) (“A probationer’s home, like anyone else’s, is protected by the Fourth Amendment’s requirement that searches be ‘reasonable.’ ”).

        Fox, 272 Ga. at 165 (2) (punctuation and footnote omitted), quoting Griffin, 483 U. S. at 873 (II) (A).

        Fox, 272 Ga. at 165 (2) (punctuation andfootnote omitted), quoting Griffin, 483 U. S. at 873-74 (II) (A); accord Hancock v. State, 265 Ga. App. 259, 262 (6) (593 SE2d 713) (2004).

        Reece v. State, 257 Ga.App. 137, 140 (2) (b) (570 SE2d 424) (2002) (punctuationomitted); accord State v. Sapp, 214 Ga. App. 428, 431-32 (3) (448 SE2d 3) (1994).

        Reece, 257 Ga. App. at 140 (2) (b) (punctuation omitted); accord Prince v. State, 299 Ga. App. 164, 169 (3) (b) (682 SE2d 180) (2009).

        Reece, 257 Ga. App. at 140 (2) (b) (punctuation omitted); accord Prince, 299 Ga. App. at 169 (3) (b).

        Reece, 257 Ga. App. at 140 (2) (b) (punctuation omitted); accord Brown v. State, 307 Ga. App. 99, 106 (4) (704 SE2d 227) (2010); Prince, 299 Ga. App. at 169 (3) (b).

       We note that Whitfield does not argue that his probation officer or the officers who searched his home acted in bad faith, in an arbitrary and capricious manner, or for the purpose of harassing him. And indeed, there is no evidence in the record to support such an argument.

        See supra note 14 and accompanying text.

       On appeal, Whitfield relies on the “staleness doctrine” to support his argument that, while the March 2015 drug screen may have given rise to reasonable suspicion to support the search of his home, such suspicion had “gone stale” by the time of the search a month later. This argument, however, ignores that “[t] he mere passage of time will not render information stale, but rather is one of several factors to consider in the probable cause determination.” Prado v. State, 306 Ga. App. 240, 249 (2) (a) (701 SE2d 871) (2010) (punctuation omitted). Indeed, as the Supreme Court of Georgia has explained, “[t]he proper analysis to determine timeliness is to view the totality of the circumstances for indications of the existence of reasonable probability that the conditions referred to in the sworn testimony would continue to exist at the time of the issuance of the search warrant.” Lewis v. State, 255 Ga. 101, 104 (2) (335 SE2d 560) (1985). Here, as discussed more fully infra, the probation officer’s sworn testimony was that, in addition to Whitfield’s month-old drug screen, his suspicion that Whitfield was using drugs in violation of the terms of his probation was also based on statements that Whitfield made in April 2015, just days before the search. And for the reasons set forth in this opinion, the officer’s testimony as a whole established a reasonable suspicion that evidence of personal drug use would be found in Whitfield’s home at the time the search was executed. Finally, we note that, although the foregoing standard for considering whether evidence has become “stale” is gleaned from cases requiring probable cause and a search warrant, the level of “suspicion” necessary to justify the search in this case is “obviously less than is necessary for probable cause.” Blanks v. State, 334 Ga. App. 626, 629 (1) (778 SE2d 261) (2015) (punctuation omitted).

        See Curry v. State, 309 Ga. App. 338, 341 (711 SE2d 314) (2011) (“[T]he trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous, and we must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.”).

        Brooks v. State, 292 Ga. App. 445, 450 (2) (664 SE2d 827) (2008).

        See Fox, 272 Ga. at 167 (2) n.16 (noting that factors that might impact the question of the reasonableness of a search when a probationer is subject to a Fourth Amendment waiver include whether the officer conducting the search made an attempt to contact the probation officer for input on the defendant’s probation, whether the probation officer was involved in the actual search, and whether the search appears to have been conducted solely for law-enforcement purposes, rather than probationary purposes). In the case sub jud-ice, the probation officer’s concerns that Whitfield was using drugs and attempting to avoid detection were the sole basis for the search of Whitfield’s residence. Thus, the factors identified by our Supreme Court in Fox support the trial court’s determination that the search was reasonable because the probation officer was in contact with the officers who performed the search, and the search was conducted for probationary purposes, rather than for law-enforcement purposes. See id.

        Curry, 309 Ga. App. at 341.

        See Hess v. State, 296 Ga. App. 300, 302 (2) (674 SE2d 362) (2009) (holdingthat narcotics agents had reasonable suspicion to search the room of a defendant, who was on probation for multiple drug convictions, when they received an anonymous tip that he was engaged in unlawful possession and distribution of a controlled substance, and he had failed to appear for recent drug screens); Spencer, 293 Ga. App. at 452 (holding that a narcotics agent acted with a reasonable and good faith suspicion of criminal activity when she searched the probationer’s room after receiving two reports of drug activity, even when one of the reports was anonymous and received two months prior to the search); Brooks, 292 Ga. App. 450 (2) (holding that a law-enforcement officer had good faith reasonable suspicion of criminal activity to search a probationer’s home when he had received two anonymous, uncorroborated tips that the probationer had drugs on his property, the probationer expressed concerns that his residence was being surveilled, and even though the probation officer was not involved in the search, the officers who searched the residence contacted the probation officer “for input on the search”); Reece, 257 Ga. App. at 140 (2) (b) (holding that police were not acting in bad faith or in an arbitrary and capricious manner when they had a good faith, reasonable suspicion that the probationer, who had waived his Fourth Amendment rights, was living with someone using illegal drugs and might be using them himself). Cf. Fox, 272 Ga. at 166-67 (2) (holding that a law-enforcement officer lacked reasonable suspicion that a probationer was engaged in criminal activity when the search was based solely on information from a tipster of unknown reliability, who provided no details by which the tip could be corroborated).


author: Barnes, Presiding Judge.

text:
    A14A0113.
    ZALDIVAR v. PRICKETT et al.
    (786 SE2d 560)
    Decided May 20, 2016.

      Downey & Cleveland, Sean L. Hynes, J. Colby Jones, Andrew A. Curtright, for appellant.

      Slappey & Sadd, James N. Sadd, Edward M. Wynn, for appel-lees.
   Barnes, Presiding Judge.

In Zaldivar v. Prickett, 297 Ga. 589 (774 SE2d 688) (2015), the Supreme Court of Georgia reversed the judgment of this court in Zaldivar v. Prickett, 328 Ga. App. 359 (762 SE2d 166) (2014). Having received the remittitur from that court, we vacate our earlier decision and adopt the opinion of the Supreme Court as our own.

Judgment reversed.

Doyle, C. J., Miller, P. J., Ellington, P. J., Dillard, Boggs and Branch, JJ., concur.


author: Phipps, Presiding Judge.

text:
    A16A0172.
    BLACKWELL v. THE STATE.
    (786 SE2d 552)
   Phipps, Presiding Judge.

A jury found Ryan Blackwell guilty of manufacturing methamphetamine in the presence of a child. He appeals, asserting that the trial court erred in failing to suppress his custodial statement to police. He also argues that he received ineffective assistance of counsel at trial. For reasons that follow, we affirm.

Viewed favorably to the jury’s verdict, the evidence shows that on September 17, 2010, an investigator with the Richmond County Sheriff’s Office received a tip that Blackwell was manufacturing methamphetamine out of a Richmond County home. The investigator and his partner knocked on the front door of the home, which was answered by a resident, and asked for Blackwell. The resident led them to the garage, where they found Blackwell, his wife, the Blackwells’ three-month-old daughter, and another man. As he entered the garage, the investigator detected a strong chemical odor and saw “an active meth lab cooking” a few feet from where Blackwell and the other occupants were sitting.

The investigator and his partner removed everyone from the garage and obtained permission to search the premises. Inside the garage, they found a black bag containing methamphetamine as well as equipment and other items used to manufacture and sell methamphetamine. The investigator arrested Blackwell, who indicated that he lived at the house. Blackwell also stated that although he knew methamphetamine was being manufactured in the garage, it did not belong to him. At trial, Blackwell offered evidence that he lived with his mother, rather than at the residence where he was arrested, and that he was not involved with manufacturing or selling methamphetamine. Without dispute, however, the evidence showed that Blackwell’s wife and child lived at the residence, and personal property belonging to Blackwell was located there.

Based on the evidence presented, the jury found Blackwell guilty of manufacturing methamphetamine in the presence of a child. As to a second charge of trafficking in methamphetamine, the jury found him not guilty.

1. Blackwell argues that the trial court erred in admitting his statement to the investigator that he knew methamphetamine was being manufactured in the garage a few feet from his three-month-old child. According to Blackwell, he made the statement in response to threats, undermining its voluntariness and admissibility

Pursuant to former OCGA § 24-3-50, a confession is admissible if it is “made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” Before admitting a confession, the trial court must consider the totality of the circumstances and assess whether the defendant made the statement voluntarily. We will not disturb the trial court’s determination as to voluntariness absent clear error.

The trial court held a Jackson v. Denno hearing before admitting Blackwell’s statement. At the hearing, the investigator testified that he arrested Blackwell, read him Miranda warnings, and obtained a signed waiver of counsel from him. Blackwell then agreed to be interviewed at the scene, ultimately stating that he knew methamphetamine was being cooked in the garage, but that it did not belong to him. According to the investigator, he did not threaten Blackwell or promise him anything to obtain the statement. He did, however, ask whether Blackwell wanted to claim ownership of the drugs, and he possibly stated that Blackwell’s child might be taken into state custody. The investigator also told Blackwell that “there[ ] [was] a good chance” Blackwell’s wife would be going to jail, given her presence with the child in front of an active methamphetamine lab.

Following the investigator’s testimony, Blackwell presented evidence from Tina Drake, who was in the house during Blackwell’s interview. According to Drake, the investigator informed Blackwell that “it was time to man up and that if [Blackwell] didn’t tell [the investigator] everything that [the investigator] found in that house belonged to him that [the investigator] was going to take his wife to jail and his child to [the Georgia Division of Family and Children Services]Drake testified that the investigator also threatened to “tear .. . apart” Blackwell’s mother’s home, where Blackwell claimed to be living. She further claimed that Blackwell “raised [his hands] up and said all right, whatever you find belongs to me.”

After hearing the evidence, the trial court concluded that Blackwell gave his statement freely and voluntarily, without any hope of benefit or fear of injury We find no error. Although Blackwell claims that the investigator induced the statement by threatening his family members, the trial court was authorized to find, based on the investigator’s testimony, that the investigator simply informed Blackwell that his wife could be arrested and that his child — who resided in a home where methamphetamine was being manufactured — might be taken into state custody.

As we have explained, “a statement by police that makes the defendant ‘aware of potential legal consequences’ is ‘in the nature of a mere truism’ that does not constitute a threat of injury or promise of benefit” within the meaning of former OCGA § 24-3-50. Blackwell was advised of his Miranda rights, waived his right to counsel, and agreed to speak with the investigator. During the conversation, the investigator told Blackwell about the legal consequences of his arrest and the police investigation, and Blackwell conceded that he knew about the active methamphetamine lab in the house. The trial court did not err in finding that Blackwell freely and voluntarily made this statement to police.

2. Blackwell also alleges that he received ineffective assistance of counsel at trial. Specifically, he argues that trial counsel was ineffective because, although counsel presented Tina Drake’s testimony at the Jackson v. Denno hearing, he did not call her as a trial witness to testify about the investigator’s alleged “threats.” To prevail on this claim, Blackwell “must show that counsel’s performance was deficient and that the deficiency so prejudiced [the defense] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” A defendant must demonstrate both deficiency and prejudice to establish ineffective assistance, and we “need not analyze the deficient performance prong if [we] determine [ ] the prejudice prong has not been satisfied.”

Decided May 20, 2016.

Long D. Vo, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Titus T. Nichols, Assistant District Attorneys, for appellee.

At the hearing on Blackwell’s motion for new trial, trial counsel asserted that his failure to call Drake as a trial witness “was an oversight” and did not constitute trial strategy. Drake testified at the Jackson v. Denno hearing, however, that she heard Blackwell claim ownership of “whatever” police found in the house, which included methamphetamine. And trial counsel admitted that such testimony would not have helped Blackwell at trial. Moreover, the record shows that counsel cross-examined the investigator at trial regarding his interview with Blackwell, eliciting evidence that the investigator told Blackwell his child might be taken into state custody and his wife might go to jail.

Had Drake testified at trial, therefore, portions of her testimony likely would have been cumulative of evidence obtained from the investigator on cross-examination. More importantly, her testimony might have harmed Blackwell’s apparently successful claim that the methamphetamine found in the house did not belong to him. Pretermitting whether trial counsel should have called this witness, Blackwell cannot show a reasonable likelihood that, absent the alleged deficiency, the outcome of the trial would have been favorable to him. Accordingly, this claim of error lacks merit.

Judgment affirmed.

Dillard and Peterson, JJ., concur.

        Smith v. State, 291 Ga. App. 535 (662 SE2d 305) (2008).

       See OCGA § 16-5-73 (b) (1) (“Any person who intentionally causes or permits a child to be present where any person is manufacturing methamphetamine ... shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than two nor more than 15 years.”).

       Because Blackwell’s trial took place in 2012, he was tried under our old Evidence Code. See Ga. L. 2011, pp. 99, 214, § 101. Former OCGA § 24-3-50 appears in the new Evidence Code as OCGA § 24-8-824.

        Smith, supra at 536-537.

       Id. at 537.

       378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

       Blackwell’s wife was, in fact, arrested, indicted for trafficking in methamphetamine (Count 1) and manufacturing methamphetamine in the presence of a child (Count 2), and tried with Blackwell. The jury found her not guilty on Count 1 and failed to reach a verdict on Count 2, resulting in a mistrial as to that charge.

        Smith, supra at 537.

       See id. at 537-538 (“An indication by the police that they are considering charging a defendant’s girlfriend or wife with a crime does not necessarily render a confession involuntary.”) (footnote omitted); Rubia v. State, 287 Ga. App. 122, 123 (650 SE2d 797) (2007) (officer’s statement to defendant that “the police as a matter of policy placed children in the custody of... DFACS upon the arrest of their parents was a mere ‘truism’ or recounting of fact rather than a threat of injury or promise of benefit”) (punctuation omitted); Anderson v. State, 224 Ga. App. 608, 610 (1) (481 SE2d 595) (1997) (officer’s statement that burglary suspect’s girlfriend might be charged as an accessory “was a mere ‘truism’ or recounting of facts rather than a threat of injury or promise of benefit” and thus did not undermine voluntariness of suspect’s confession). See also Butler v. State, 292 Ga. 400, 403 (2) (738 SE2d 74) (2013) (“Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of the defendant’s statement at a Jackson v. Denno hearing will be upheld on appeal.”) (citation omitted).

       Although the trial court determined that Blackwell’s statement was voluntary and thus admissible, the issue of voluntariness had to be “presented to the jury for consideration.” Hogan v. State, 330 Ga. App. 596, 600 (2) (768 SE2d 779) (2015).

        Navarrete v. State, 283 Ga. 156, 161 (3) (656 SE2d 814) (2008) (citations omitted).

       Id. at 162 (3).

       As noted above, the jury, which heard only that Blackwell had disavowed ownership of the drugs, acquitted him of trafficking in methamphetamine.

       See Navarrete, supra at 162 (3) (counsel’s failure to call witness at trial did not prejudice defendant where witness’s ‘testimony actually may have been detrimental to the defense”); Columbus v. State, 270 Ga. 658, 661-662 (2) (b) (513 SE2d 498) (1999) (trial counsel not ineffective in failing to call witness whose testimony would have been cumulative of other testimony); Fleming v. State, 324 Ga. App. 481, 488 (3) (b) (749 SE2d 54) (2013) (“[T]he failure to present cumulative evidence through additional witness testimony does not amount to ineffective assistance of counsel.”) (citations omitted); see also Hill v. State, 290 Ga. App. 140, 147 (5) (j) (658 SE2d 863) (2008) (although trial counsel asserted at new trial hearingthat his trial performance was deficient, ineffective assistance claim failed because defendant did not show that alleged deficiency prejudiced the defense).


author: McMlLLIAN, Judge.

text:
    A16A0188.
    MALONE v. THE STATE.
    (786 SE2d 558)
   McMlLLIAN, Judge.

William Malone was convicted by a jury of possession of a firearm by a convicted felon in violation of OCGA § 16-11-131. Heappealedto this Court, but his appeal was dismissed for failure to timely file his brief on appeal. Following the return of the remittitur, the trial court granted Malone’s motion for out-of-time appeal and appointment of new appellate counsel. New appellate counsel filed an amended motion for new trial, which the trial court denied. Malone then timely filed this appeal, asserting in his sole enumeration of error that the evidence was insufficient to support his conviction. As more fully set forth below, we now affirm.

Construed to support the jury’s verdict, the evidence shows that at approximately 11:30 p.m. on November 20, 2013, Officer Brian Notestine with the Gwinnett County Police Department stopped the driver of a silver Mercedes, subsequently identified as Malone, because of a tag violation. Officer Notestine approached the driver’s side of the vehicle and obtained Malone’s driver’s license. During the process of checking Malone’s driver’s license, which was valid, Officer Notestine discovered that there was an outstanding warrant for Malone’s arrest. Officer Notestine also confirmed that at the time of the stop, Malone, who was sometimes employed as a driver for a vehicle transportation company, was driving the Mercedes from an automobile auction to an automobile dealership for his employer.

Officer Notestine placed Malone under arrest and then patted him down before placing him in the back of the police car. During the pat-down, Officer Notestine found seven .380 caliber bullets in Malone’s exterior right front jacket pocket. Officer Notestine proceeded to conduct a walk-around search of the Mercedes, and looking in from the passenger side, saw a black and chrome object protruding up about two inches between the front console and seat. Officer Note-stine stated that based on his knowledge, training and experience, he believed the object to be a grip of a handgun, so he opened the car door and retrieved the object, which was subsequently identified as a Lorcin model L380.

Officer Notestine cleared the weapon and found that the magazine of the gun was fully loaded with seven .380 caliber rounds. The inside of the vehicle was searched, and two more bullets were found on the floorboard of the front passenger seat, which made a total of 16 bullets recovered by police. However, only 14 bullets were introduced into evidence at trial, and Officer Notestine testified that the evidence introduced at trial was all the evidence found by police.

The owner of the transportation company and the service manager of the auction facility also testified at trial. The service manager explained that each vehicle purchased at auction is visually inspected before it is allowed to leave the auction yard, and that this inspection includes the floorboards and seats of the interior of the car as well as the trunk. The transportation company owner confirmed this process and also explained that for certain sales, the purchaser has the option of a post-sale inspection, which includes a more thorough inspection of the inside and outside of the car. He stated that such an inspection was performed on the silver Mercedes Malone was driving at the time of the stop.

On appeal, Malone argues that the evidence was insufficient to show he was in possession of the gun and that all the State showed was that he was simply the last person to be in possession of the car in which the gun was found. To support his argument, he points to certain discrepancies in the evidence, such as the fact that Officer Notestine testified that he recovered a total of 16 bullets out of the car, but only 14 bullets were introduced into evidence, and to the fact that numerous other people had access to the vehicle during the auction process. These arguments, however, are unavailing. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, [the appellate court] must uphold the jury’s verdict.” Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004). And it was for the jury, not this Court, to determine the credibility of the witnesses and to resolve any conflicts and inconsistencies in the evidence. Id.

The evidence presented at trial showed that the gun was found in close physical proximity to Malone, and that he had in his pocket the exact number of the proper caliber bullets to completely reload the gun. And although others had access to the car before he took possession of it, the evidence authorized the conclusion that the car had been visually inspected at a point close in time to when Malone had sole access to the inside of the vehicle, and no weapons had been observed. This and other evidence presented at trial was sufficient to authorize a rational trier of fact to find Malone guilty beyond a reasonable doubt of the crime of possession of a firearm by a convicted felon. Senior v. State, 277 Ga. App. 197, 197-98 (626 SE2d 169) (2006) (to support a conviction for possession of a firearm by a convicted felon, the State need only prove that the accused is a convicted felon and in possession of a firearm as defined in OCGA § 16-11-131 (a) (2)). Accordingly, Malone’s sole enumeration of error on appeal is without merit, and the judgment is affirmed.

Decided May 20, 2016.

Michael S. Marr, for appellant.

Daniel J. Porter, District Attorney, Thomas L. Williams, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

        Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       It was stipulated at trial that Malone had previously been convicted of a felony.


author: McFadden, Judge.

text:
    A16A0507.
    NINE TWENTY, LLC et al. v. BANK OF THE OZARKS.
    (786 SE2d 555)
   McFadden, Judge.

This appeal concerns the liability of Donald and Evelyn Ray on their guaranties of certain notes. The Rays argue that the action is barred because the lender failed to seek confirmation of the foreclosure sales of the property securing the notes. But when they executed those guaranties, the Rays waived this condition precedent. The Rays also argue that the amount of the judgment against them is incorrect. We disagree. We therefore affirm the trial court’s grant of summary judgment to the appellee, Bank of the Ozarks. We deny Bank of the Ozarks’ motion to dismiss the appeal as moot.

1. Facts.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.” HWA Properties v. Community & Southern Bank, 322 Ga. App. 877, 878 (746 SE2d 609) (2013) (citation omitted).

So viewed, the record shows the following undisputed, relevant facts. The predecessor to the Bank of the Ozarks extended loans to Nine Twenty, LLC and Donald Ray & Associates, Inc. Donald and Evelyn Ray guarantied the notes. The companies defaulted, and the bank foreclosed on the properties securing the notes. It did not seek confirmation of the foreclosure sales.

The bank filed this action against the companies and the Rays for the balance due on the notes and under the guaranties. The bank and the Rays filed cross-motions for summary judgment. The trial court granted the bank’s motion and denied the Rays’ motion. This appeal followed.

2. The failure to confirm the foreclosure sales.

On appeal the Rays argue that confirmation of the foreclosure sales was a condition precedent to the bank’s filing this action. They concede that our Supreme Court’s decision in PNC Bank, Nat. Assn. v. Smith, 298 Ga. 818 (785 SE2d 505) (2016), which was decided while this appeal was pending, is dispositive. In that case, our Supreme Court held that

a lender’s compliance with the requirements contained in OCGA § 44-14-161[, which requires confirmation of a foreclosure sale before a lender may seek a deficiency judgment,] is a condition precedent to the lender’s ability to pursue a guarantor for a deficiency after a foreclosure has been conducted.

Id. at 819 (2). But, the court also held that “a guarantor can waive the condition precedent requirement of the confirmation statute by virtue of waiver clauses in the loan documents.” Id. at 820 (3). And here, the Rays do not dispute that their guaranties included such waiver clauses. Indeed, those waiver clauses, which are set out below, are virtually identical to the waiver clauses in HWA Properties, supra, 322 Ga. App. at 885-887 (2) (b), which the Supreme Court cited with approval in PNC Bank. Consequently, Bank of the Ozarks could pursue this action against the Rays, even though it failed to seek confirmation of the foreclosure sales.

3. Damages.

The Rays argue that the trial court erred in calculating damages as the difference between the proceeds of the foreclosure sales and the amounts due under the notes. Instead, they argue, the court should have entered judgment in the amount of the difference between the fair market value of the properties securing the loans and the amounts due under the notes. We disagree.

One of the issues a trial court decides in a confirmation proceeding is the fair market value of the property sold at foreclosure. See Ciuperca v. RES-GA Seven, LLC, 319 Ga. App. 61 (735 SE2d 107) (2012). But, as detailed above, the Rays waived any right to insist upon confirmation of the fair market value of the properties. Therefore, the bank was authorized “to collect the difference between the amount due on the note and the foreclosure sale proceeds from [the Rays] based upon their personal guaranties.” Community & Southern Bank v. DCB Investments, LLC, 328 Ga. App. 605, 614 (2) (760 SE2d 210) (2014) (citation and punctuation omitted).

Decided May 20, 2016.

Vaughn & Clements, Jesse L. Vaughn, for appellant.

Hartley, Rowe & Fowler, Kenneth B. Crawford, Jeffrey P. Richards, for appellee.

The Rays argue that the duty of good faith and fair dealing required the bank to credit their indebtedness with the fair market value of the properties rather than the amount actually received at the foreclosure sales.

Generally speaking, every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement. But there can be no breach of an implied covenant of good faith where a party to a contract has done what the provisions of the contract expressly give him the right to do.

Martin v. Hamilton State Bank, 314 Ga. App. 334, 335 (723 SE2d 726) (2012) (citations, punctuation and footnote omitted). Here, in the guaranties the Rays agreed that they would be liable “for any deficiency remaining after foreclosure” and that their liability would not be affected by “any foreclosure ... of any collateral security.” To condition the Rays’ liability upon a determination of the properties’ fair market values would be inconsistent with these contractual provisions.

Judgment affirmed.

Miller, P. J., concurs. McMillian, J., concurs in judgment only.

       1. No act or thing need occur to establish the liability of the Undersigned hereunder, and no act or thing, except full payment and discharge of all indebtedness, shall in any way exonerate the Undersigned or modify, reduce, limit or release the liability of the Undersigned hereunder.

      4. The liability of the undersigned hereunder shall be limited to a principal amount of $ Unlimited (if unlimited or if no amount is stated, the Undersigned shall be liable for all indebtedness, without any limitation as to amount), plus accrued interest thereon and all other costs, fees, and expenses agreed to be paid under all agreements evidencing the Indebtedness and securing the payment of the Indebtedness, and all attorneys’ fees, collection costs and enforcement expenses referable thereto. Indebtedness may be created and continued in any amount, whether or not in excess of such principal amount, without affecting or impairing the liability of the Undersigned hereunder. The Lender may apply any sums received by or available to Lender on account of the Indebtedness from Borrower or any other person (except the Undersigned), from their properties, out of any collateral security or from any other source to payment of the excess. Such application of receipts shall not reduce, affect or impair the liability of the Undersigned ....
      6.... The liability of the Undersigned shall not be affected or impaired by any of the following acts or things (which Lender is expressly authorized to do, omit or suffer from time to time, both before and after revocation of this guaranty, without notice to or approval by the Undersigned): (i) any acceptance of collateral security, guarantors, accommodation parties or sureties for any or all indebtedness; . . . (iii) any waiver, adjustment, forbearance, compromise or indulgence granted to Borrower, any delay or lack of diligence in the enforcement of Indebtedness, or any

        failure to institute proceedings, file a claim, give any required notices or otherwise protect any Indebtedness; (iv) any full or partial release of, settlement with, or agreement not to sue, Borrower or any other guarantor or other person liable in respect of any Indebtedness; (v) any discharge of any evidence of Indebtedness or the acceptance of any instrument in renewal thereof or substitution therefor; (vi) any failure to obtain collateral security (including rights of setoff) for Indebtedness, or to see to the proper or sufficient creation and perfection thereof, or to establish the priority thereof, or to protect, insure, or enforce any collateral security, or any release, modification, substitution, discharge, impairment, deterioration, waste, or loss of any collateral security; (vii) any foreclosure or enforcement of any collateral security^

      7. The Undersigned waives any and all defenses: claims and discharges of Borrower, or any other obligor pertaining to Indebtedness, except the defense of discharge by payment in full. Without limiting the generality of the foregoing, the Undersigned will not assert, plead or enforce against Lender any defense of waiver, release, statute of limitations, res judicata, statute of frauds, fraud, incapacity, minority, usury, illegality or unenforceability which may be available to Borrower or any other person liable in respect of any indebtedness, or any setoff available against Lender to Borrower or any such other person, whether or not on account of a related transaction. The Undersigned expressly agrees that the Undersigned shall be and remain liable, to the fullest extent permitted by applicable law, for any deficiency remaining after foreclosure of any mortgage or security interest securing indebtedness, whether or not the liability of Borrower or any other obligor for such, deficiency is discharged pursuant to statute or judicial decision, The Undersigned shall remain obligated, to the fullest extent permitted by law, to pay such, amounts as though, the Borrower’s obligations had not been discharged,

      (Emphasis supplied).