author: BARNES, Presiding Judge.

text:
    A12A0417.
    DUNHAM v. THE STATE.
    (729 SE2d 45)
   BARNES, Presiding Judge.

Guy Dunham appeals his conviction for aggravated battery, contending that the trial court erred by allowing the State to introduce similar transaction testimony, by denying his motion for a mistrial, and by sentencing him as a recidivist under OCGA § 17-10-7 (c). He also asserts that his trial counsel was ineffective in several respects. For the reasons that follow, we affirm.

We view the evidence on appeal in the light most favorable to the verdict, and no longer presume the defendant is innocent. Brown v. State, 293 Ga. App. 633 (667 SE2d 899) (2008). We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. Id. We construe the evidence and all reasonable inferences from the evidence most strongly in favor of the jury’s verdict. Id.

Viewed in that light, the evidence at trial established that the charges arose following an altercation between Dunham and four other men at a salvage yard. Customers at the yard stripped parts from used vehicles, and then carried the parts inside to a cashier for payment. Dunham and the four men were vying to strip and buy tires and wheels from the junked cars, which they then resold. Dunham had harassed the four men repeatedly before this incident, threatening to strike them, telling them they were not welcome in this country, and vowing that if they did not leave the premises something bad would happen. He told them they did not have the same right to buy tires that he did because they were not United States citizens. Dunham was fifty-nine, and the men, three of whom were brothers and one of whom was a brother-in-law of the others, ranged in age from eighteen to twenty-six. The men testified that when Dunham harassed them, they would just move to another part of the salvage yard to avoid him.

On June 18, 2009, Dunham approached one of the men and told him to move away from the car he was stripping because Dunham had already purchased the tires from all of the vehicles along that row. He pushed the man with his foot and the man, who was the only one in his group who spoke English well, complained to salvage yard employees, who told him to deal with it himself. Dunham followed the man into the office and back out to another part of the yard where the other three men had moved. He approached a younger brother who was about to remove a wheel, and asked him if he wanted to fight. The man did not speak English, so he just laughed and kept working. Dunham, who was 6"2" and weighed 236 pounds, asked the much smaller man if he was making fun of him and tried to hit him with a metal rod, but Dunham missed the man and struck the car instead.

The other brothers, who were all 5''3" or shorter and weighed at most 165 pounds, intervened, and a struggle ensued. Dunham struck one man on his head and back and knocked him to the ground, and tried to strike another, who blocked the blow with his wrench. As the brother who had laughed returned to grapple with Dunham, Dun-ham bit down on his ear, tore it off with his teeth, and spit it out. The injured man testified that he knew Dunham was going to tear his ear off when he first bit him because Dunham was so angry.

The forklift operator broke up the fight, and the owner told everyone to leave. Dunham left the premises, but the other men waited in the parking lot for the ambulance and police to arrive. The police located Dunham through his tag number, and he was indicted for two counts of aggravated assault for striking two of the men with the metal rod, and one count of aggravated battery for biting off the ear of one of the men.

At trial the four men testified through an interpreter. The State also presented evidence of a similar transaction. A former bounty hunter testified that in 1995, he and his father went to pick up Dunham after he failed to appear in court for a traffic violation, but Dunham ran, then turned and fought when they caught up with him. Dunham grabbed for the father’s gun and got his finger into the trigger, but the father stuck his hand between the hammer and the firing pin and grappled with Dunham. In response, Dunham “chewed [the father’s] arm up. He bit him from about the elbow to the wrist. He just kept chewing on him, biting him.”

Dunham testified that he previously told the men he would call the police and immigration authorities about them because he was hoping they would not come back to the salvage yard. He told them to go back where they came from “just to put something on their mind.” He testified that on the day of the fight, the men “came at [him]” after he told them that what was in America was for Americans and that their “stuff” was in Mexico. He said there were five men, not four, and when they all attacked, he thought they were going to try to kill him. During the struggle, Dunham said, his arms were pinned and when one of the men twisted his head and his ear brushed against Dun-ham’s mouth, Dunham bit him because he had nothing else to fight with. He did not call the police afterward because he “figured they’d be man enough to take their medicine like a man and just go to the hospital. They started [the fight]. They should have been willing to suffer the consequences.” The jury found Dunham guilty of aggravated battery but not guilty of the aggravated assault charges.

1. Dunham argues that the trial court erred in admitting the similar transaction evidence for an inappropriate purpose and because it was too old. Similar transaction evidence is admissible if (1) it is introduced for a proper purpose, (2) sufficient evidence shows that the accused committed the independent offense, and (3) a sufficient connection or similarity exists between the independent offense and the crime charged, so that proof of the former tends to prove the latter. See Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

The trial court considered the admissibility of the similar transaction evidence before trial, but after hearing the State’s proffer the court determined that it wanted to hear the similar transaction witness testify before ruling on the issue. When the court again addressed the issue during trial, the similar transaction witness began to testify, and Dunham objected to the State’s photographic evidence of the bounty hunter’s bite marks because he had not received them in discovery. The trial court delayed its decision until the next day to give Dunham time to review the photographs with his lawyer. The next day, after extended colloquy regarding the purpose for which the State was offering the evidence, the trial court found that (1) the State was offering the evidence for a proper purpose, which was to show intent and course of conduct; (2) Dunham committed the independent act; and (3) a sufficient connection or similarity existed between the independent offense and the crime charged, so that proof of the former tended to prove the latter, specifically showing Dunham’s tendency to respond with violence in “an otherwise relatively] minor situation.”

In its order denying Dunham’s motion for new trial, the court addressed the fact that the prior incident occurred 15 years earlier. The court noted that there was no bright-line rule regarding the admissibility of older similar transactions, and that here, the “striking similarity between the earlier incident and the one on trial made it especially relevant on the question of intent.”

To be admissible, an independent act does not have to mirror every detail of the crime charged. . . . When similar transaction evidence is used to show bent of mind, course of conduct, motive or intent, a lesser degree of similarity is required than when such evidence is introduced to prove identity.

(Citations and punctuation omitted.) Chua v. State, 289 Ga. 220, 232 (2) (710 SE2d 540) (2011). In this case, before the similar transaction witness testified and again during the final jury charge, the court instructed the jury that this evidence was being admitted solely for the limited purpose of showing, if it did show, Dunham’s intent and course of conduct, and for no other purpose.

We find no error in the trial court’s finding that the similar transaction evidence was being offered for an appropriate purpose — to show intent and course of conduct. In both incidents, Dunham responded to an altercation by biting the party with whom he was fighting, and as the State notes, in both cases he “drew blood and inflicted visible injuries.” In both incidents Dunham used the tools at hand — an axe in 1995 and a metal bar he picked up in this case — and involved multiple other parties. Further, the trial court did not abuse its discretion in finding that the similar transaction evidence was more probative than prejudicial despite its age. “[T]he lapse of time between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility.” Cooper v. State, 173 Ga. App. 254, 255 (1) (325 SE2d 877) (1985). See, e.g., Ledford v. State, 289 Ga. 70, 83-84 (12) (a) (709 SE2d 239) (2011) (evidence of 18-year-old rape conviction admissible in murder trial); Mullins v. State, 269 Ga. 157, 158 (2) (496 SE2d 252) (1998) (17-year-old voluntary manslaughter conviction admissible to show course of conduct and bent of mind in malice murder and armed robbery trial); Moore v. State, 288 Ga. 187, 191 (3) (702 SE2d 176) (2010) (shooting incident 13 years earlier admissible in malice murder trial to show “inclination toward unprovoked gun violence”).

2. Dunham asserts that the trial court erred in denying his motion for a mistrial after the bounty hunter’s testimony improperly injected bad character evidence. When the State asked the witness whether Dunham knew why he and his father were there, he answered, “Yes. I mean, [my father] always told them, I’m so-and-so, I’m with [these] people, this is why we’re here. Guy Dunham knew who we were. He’d run from us before. He even mentioned. . . .” The State interrupted the witness, and Dunham moved for a mistrial. The trial court denied the motion and instructed the jury to disregard the last portion of the witness’s answer.

“A trial court has the discretion to grant a mistrial or to give curative instructions, and this court will only interfere with that discretion when granting a mistrial is essential to the preservation of the right to fair trial.” (Citation and punctuation omitted.) Hensley v. State, 300 Ga. App. 136, 137 (684 SE2d 673) (2009). The witness’s non-responsive answer, that Dunham had “run from [them] before,” was fleeting, and the State interrupted immediately to forestall any further testimony along that line, after which the trial court gave curative instructions. The trial court did not abuse its discretion in denying the motion for a mistrial.

3. Dunham contends that the trial court erred in sentencing him under OCGA § 17-10-7 (c) as a recidivist with three prior felony convictions, because the State failed to establish that he had knowingly and voluntarily entered his guilty plea to his 1977 conviction for selling cocaine. The record shows that Dunham raised no objection during sentencing to the trial court’s use of this prior conviction, and thus has waived the issue. “A defendant cannot acquiesce in a trial court’s ruling below and then complain about that ruling on appeal.” Beasley v. State, 254 Ga. App. 839, 841 (2) (563 SE2d 909) (2002). This enumeration, therefore, has no merit.

4. Finally, Dunham argues that he was denied his right to effective assistance of trial counsel for six reasons.

[T]o succeed on his claim of ineffective assistance, [Dunham] must satisfy both prongs of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)[;] that is, he must prove that his attorney’s performance was deficient and that there is a reasonable probability that the result of his trial would have been different but for such deficiency; in this Court’s review of the trial court’s decision regarding the alleged ineffectiveness, this Court is to accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, but it is to independently apply the legal principles to the facts.

(Citation omitted.) Nations v. State, 290 Ga. 39, 42 (4) (717 SE2d 634) (2011).

(a) Dunham first argues that his trial counsel was deficient in failing “to make all of the proper objections to the State being allowed to introduce ‘similar transaction’ evidence,” failing to argue expressly that the evidence would show only a propensity for violence. Trial counsel’s objections to the similar transaction evidence were sufficient to raise these issues, however, regardless of whether he used the word “propensity.”

(b) Dunham next argues that his trial counsel was ineffective for failing to move to limit the similar transaction witness’s res gestae testimony, which he asserts was more extensive than the State’s proffer. In arguing the motion, the State proffered that the similar transaction would show that Dunham fled from the bounty hunters and bit one of them when he was caught. He also used the tools at hand in both the similar transaction and the incident for which he was on trial; then, he used an axe, the bounty hunter’s gun, and his teeth, and here, he used a metal rod and his teeth. In both instances he was outnumbered and reacted to relatively trivial matters “with extraordinary and unusual violence,” specifically by using his teeth.

Dunham is correct that the witness’s trial testimony was more extensive than the State’s proffer or the witness’s testimony at the motions hearing, but it included no unrelated additional, irrelevant crimes, as was the case in Sessions v. State, 207 Ga. App. 609,609-610 (2) (428 SE2d 652) (1993). The “testimony came well within the scope of the facts brought up in the similar transaction hearing. It does not appear that [Dunham] was unfairly prejudiced or surprised by [the witnesses testimony.” Woods v. State, 250 Ga. App. 164, 167 (1) (b) (550 SE2d 730) (2001). As the evidence was admissible, trial counsel was not ineffective for failing to make a meritless objection. Wesley v. State, 286 Ga. 355, 357 (3) (e) (689 SE2d 280) (2010).

(c) Dunham asserts that his trial counsel was ineffective for failing to renew his motion for mistrial after the trial court denied it and gave curative instructions instead. But trial counsel excepted to the court’s ruling, which preserved the issue for review. Brown v. State, 268 Ga. 455, 457 (3) (490 SE2d 379) (1997). And the issue was, in fact, reviewed in Division 2.

(d) Dunham argues that his trial counsel was ineffective for failing to object when the State cross-examined him about the similar transaction, about which he did not testify on direct. He contends that the State improperly impeached him with this evidence of his prior conviction. Dunham conflates the analysis of whether a similar transaction is admissible to prove “identity, motive, plan, scheme, bent of mind, and course of conduct” with the analysis of whether a prior conviction is admissible for impeachment purposes. Robertson v. State, 306 Ga. App. 721, 724 (2) (703 SE2d 343) (2010).

After pretrial notice and a hearing, a trial court may determine that similar transaction evidence is admissible for a proper purpose, regardless of whether the defendant testifies. Robertson, 306 Ga. App. at 724 (2). As a separate issue, if a defendant testifies and places his character into evidence, the State may impeach him by introducing evidence of prior felony convictions if the trial court determines that the probative value of the conviction substantially outweighs its prejudicial effect. OCGA § 24-9-84.1 (a) (2); Newsome v. State, 289 Ga. App. 590, 592-593 (2) (657 SE2d 540) (2008). If the prior felony conviction is more than ten years old, however, the State must give the defendant advance written notice of its intention to use it for impeachment purposes so he has an opportunity to contest its use. OCGA § 24-9-84.1 (b).

“OCGA § 24-9-64 provides that all parties to a criminal proceeding are entitled to a thorough, sifting cross-examination as to the witnesses called against him. ... If a defendant testifies, he may be cross-examined by the prosecution like any other witness.” Hooks v. State, 253 Ga. 141, 143 (3) (317 SE2d 531) (1984). In this case, the trial court had already determined that evidence of the similar transaction was admissible for a proper purpose and that its probative value outweighed its prejudicial effect, and in Division 1 we upheld that ruling. Thus, the issue was relevant to the case, and by choosing to testify, Dunham subjected himself to cross-examination about his prior actions. Id.; see Childs v. State, 287 Ga. 488, 491 (3) (696 SE2d 670) (2010). The State did not ask Dunham about his prior conviction to impeach him, but asked him about the similar transaction already in evidence, which it was permitted to do. Thus, trial counsel was not deficient for failing to object to the State’s cross-examination.

(e) Dunham argues his trial counsel was ineffective in asking a witness whether he was a legal alien, after the trial court had already sustained the State’s objection to Dunham asking the previous witness whether he had a visa to be in this country. When the state objected to the legal alien question, the trial court sent the jury out and pointedly questioned Dunham’s trial counsel about why he asked the question in violation of the court’s earlier ruling, to which counsel responded that the ruling had been made regarding a different witness. Dunham admits that his testimony showed he was prejudiced against these victims and argues that “giving the jury the impression that counsel shared in that bias or prejudice could not benefit [him] in any manner.” As the trial court found in its order denying Dunham’s motion for a new trial, “This contention is merest speculation on the part of defendant.... The point of the attempt [to ask about the victim’s or witness’s immigration status] was to show that the victim himself was a lawbreaker and thus subject to impeachment.” The court concluded that this was a matter of trial strategy and not ineffective assistance of counsel, and this finding was not clearly erroneous. Terry v. State, 284 Ga. 119, 120, 122 (2) (d) (663 SE2d 704) (2008).

(f) Dunham contends that his 1977 felony conviction should not have been used to sentence him as a three-strike recidivist under OCGA § 17-10-7 (c) because the State did not show that the plea was entered knowingly and voluntarily.

“In recidivist sentencing, the State bears the burden of showing both the existence of the prior guilty pleas and that the defendant was represented by counsel when he entered the pleas.” Beck v. State, 283 Ga. 352, 353 (2) (658 SE2d 577) (2008). See Nash v. State, 271 Ga. 281 (519 SE2d 893) (1999). The State met that burden in this case by introducing during sentencing a certified copy of Dunham’s 1977 counseled plea of guilty to a felony charge of theft by taking, along with two other felony convictions for selling cocaine in 1992 and 1995. Dunham argues that there is no “presumption of regularity” in his 1977 sentencing because the Uniform Superior Court Rules had not yet become effective, and therefore the State should have the burden of showing that he entered his plea knowingly and voluntarily. The “presumption of regularity” discussed by the Supreme Court of Georgia in Beck and Nash does not rely solely upon the application of the Uniform Superior Court Rules, however, but “on the presumption, long recognized in Georgia, in favor of the regularity and legality of all proceedings in the courts below.” Nash, 271 Ga. at 284.

Once the State introduces evidence that the defendant entered a guilty plea and had been represented by counsel, the presumption of regularity attaches, and the burden shifts to the defendant to show any alleged irregularities. Beck, 283 Ga. at 354 (2). “[T]he burden of production is on the recidivism defendant rather than the State when the defendant seeks ... to challenge the validity of a prior guilty plea used to enhance a sentence in such proceedings.” Nash, 271 Ga. at 284. Dunham has made no showing that any evidence exists with which his trial counsel could have met that burden, and therefore has not shown that his trial counsel rendered ineffective assistance by failing to challenge the use of his 1977 felony conviction to enhance his sentence.

Decided May 17, 2012

Steven L. Sparger, for appellant.

Larry Chisolm, District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

Judgment affirmed.

Adams and McFadden, JJ., concur.


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A12A0743.
    THORPE et al. v. STERLING EQUIPMENT COMPANY, INC. et al.
    (729 SE2d 52)
   McFadden, Judge.

This appeal is from a grant of summary judgment to the defendants in an action arising out of the death of the driver of a logging truck. Leon Maxwell was killed when his truck stopped, and the cut timber he was hauling lurched forward, crushing the cab. The plaintiffs argue that Sterling Equipment Company, Inc., which leased the truck to Maxwell’s employer, owed Maxwell a duty to inspect the truck to ensure that it was safe before delivering it and that John Lane, Sterling Equipment’s principal, can be held liable for any torts he may have committed. They also argue that the trial court erred by making factual findings on disputed evidence.

We disagree with the plaintiffs’ argument that the defendants owed Maxwell a duty to inspect the truck and to ensure that it was safe under Restatement 2d of Torts, § 388 because that provision imposes a duty to warn, not to inspect or to ensure a chattel’s safety. We agree with the plaintiffs, however, that the defendants owed Maxwell a duty arising from the bailor-bailee relationship between Sterling Equipment and Coastal Logging, Inc., Maxwell’s employer. We also agree with the plaintiffs that Lane can be held personally liable for any negligent acts in which he may have participated and that there is some evidence to support such a claim. And we agree with the plaintiffs that the trial court erred by making certain factual findings since the evidence was not undisputed. We therefore reverse the summary judgment granted to the defendants.

Lane owns both Sterling Equipment and Coastal Logging. Sterling Equipment is in the business of buying trucks for resale; it leases the trucks to Coastal Logging until they sell. Lane purchased for Sterling Equipment the truck involved in the accident. Before buying the truck, Lane inspected it by “[j]ust a general walk around, cranked it up, checked the oil pressure, things such as that.” The truck was equipped with a cab guard or “headache rack,” a device installed to protect the truck’s cab from being crushed by the load in the trailer. Lane visually inspected the truck’s headache rack.

Maxwell’s children and the administrators of his estate filed this action against Sterling Equipment and Lane, alleging that they breached a duty to inspect, repair and maintain the truck, and to ensure that the truck lacked defects. The defendants moved for summary judgment, arguing that they owed no duty to Maxwell and that Lane, a corporate officer, could not be held personally liable. The trial court granted the motion, and the plaintiffs appealed.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA§ 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant.” (Citation omitted.) Cope v. Enterprise Rent-A-Car, 250 Ga. App. 648, 649 (551 SE2d 841) (2001).

The essential elements of a cause of action based on negligence are:

(1) Alegal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.

(Citation omitted.) Id.

1. The plaintiffs argue that some of the trial court’s factual findings were unsupported or the subject of disputed evidence. In its order granting summary judgment to the defendants, the trial court found, among other things, that:

the alleged hazard was present only if the truck was loaded with cut logs, to a level that was equal to or higher than the height of the cab;
[t]he alleged hazard would not be present if the wood products the truck was expected to be hauling were stumps or some other type of forest product besides cut log;
[a lessor of a log truck] has no control over the types of wood products that will be hauled or, if cut logs are hauled, how high those logs will be loaded on the trailer; and,
[o]nly the lessee is aware of whether the truck will be used to haul cut logs loaded to a height that posed a risk of “load shifting” which might cause them to penetrate the cab in an emergency situation such as what the decedent experienced, or whether it would be used for other purposes which did not pose that risk.

The defendants do not argue that these factual findings are based on undisputed evidence. Rather, they argue that the trial court’s error in making such findings does not entitle the plaintiffs to reversal because the findings were merely dicta. But dicta is “a statement in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand.” (Citation and punctuation omitted.) Zepp v. Brannen, 283 Ga. 395, 397 (658 SE2d 567) (2008). The trial court’s factual findings, which were not based on undisputed evidence, were not dicta, and the trial court erred in making them. “In ruling on a motion for summary judgment, a trial court is not empowered to resolve disputed issues of material fact but merely to determine if such issues exist for resolution.” (Citation and punctuation omitted.) Atlanta v. North by Northwest Civic Assn., 262 Ga. 531, 537 (4) (422 SE2d 651) (1992). The trial court erred in making these factual findings on summary judgment, given that, at best, the evidence was disputed.

2. The plaintiffs argue that the trial court erred in finding that Sterling Equipment owed Maxwell no duty. We disagree with their argument that the defendants owed Maxwell a duty to inspect the truck and headache rack and ensure their safety under Restatement 2d of Torts, § 388 because that provision imposes a duty to warn, not to inspect or to ensure safety. We agree with the plaintiffs, however, that the defendants owed Maxwell a duty arising from the bailor-bailee relationship between Sterling Equipment and Coastal Logging.

(a) The plaintiffs argue that Sterling Equipment owed Maxwell a duty under Restatement 2d of Torts, § 388, which this court adopted in Moody v. Martin Motor Co., 76 Ga. App. 456 (46 SE2d 197) (1948). See Carter v. E. I. DuPont de Nemours & Co., 217 Ga. App. 139 (456 SE2d 661) (1995). Section 388 provides:

One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

This has been interpreted as imposing “liability for damages caused by suppliers of chattel who fail to use reasonable care to inform likely users of the chattel’s dangerous conditions.” (Citation omitted.) Binder v. Jones & Laughlin Steel Corp., 520 A2d 863, 866 (II) (Pa. Super. 1987). See also Restatement 2d of Torts, § 388, comment g (“The duty which the rule stated in this Section imposes upon the supplier of a chattel for another’s use is to exercise reasonable care to give to those who are to use the chattel the information which the supplier possesses, and which he should realize to be necessary to make its use safe for them and those in whose vicinity it is to be used.”) (emphasis supplied). Simply put, § 388 imposes a duty to warn. See, e.g., Fluidmaster v. Severinsen, 238 Ga. App. 755, 756 (520 SE2d 253) (1999) (physical precedent only); Carter, 217 Ga. App. at 141-142; Beam v. Omark Indus., 143 Ga. App. 142, 147 (237 SE2d 607) (1977).

But the plaintiffs do not allege that Maxwell’s death was caused by the breach of a duty to warn him of the truck’s dangerous condition. Rather, they allege that Maxwell’s death was caused by the breach of a duty to inspect, repair and maintain the truck. They cite no authority for the proposition that § 388 imposes a duty to inspect, repair and maintain a chattel. Indeed, comment m to § 388 expressly states that “[t]he fact that a chattel is supplied for the use of others does not of itself impose upon the supplier a duty to make an inspection of the chattel, no matter how cursory, in order to discover whether it is fit for the use for which it is supplied.” See Lockett v. Gen. Elec. Co., 376 FSupp. 1201, 1208 (E.D. Pa. 1974) (“[A] supplier of a chattel has no duty under section 388 to test or inspect or even make a cursory examination to ascertain the existence or non-existence of a dangerous condition.”).

The plaintiffs heavily rely on Moody, 76 Ga. App. 456, to find a duty to inspect based on § 388. But Moody is distinguishable. In Moody, the plaintiff had given the chattel to the defendant for the defendant to make repairs to an identified condition; the defendant then misrepresented that the repairs had been made, thus failing to disclose to the plaintiff the chattel’s likely dangerous condition. Id. at 457. Such an allegation implicated § 388’s duty to warn. See Restatement 2d of Torts, § 388, comment b (a supplier of a chattel “is subject to liability if by word or deed he leads those who are to use the chattel to believe it to be of a character or in a condition safer for use than he knows it to be or to be likely to be”). Here, however, the plaintiffs do not allege that Maxwell’s death resulted from the breach of a duty to warn.

(b) The plaintiffs argue that the defendants owed Maxwell a duty arising from the bailor-bailee relationship between Sterling Equipment and Coastal Logging. We agree.

[A] bailor, entrusting a chattel to a bailee for immediate operation, has a duty of using ordinary care to ascertain that the chattel has no hidden defects rendering it dangerous, and ... this duty extends to those persons within the range of foreseeable operation of the chattel. Since the bailor’s duty extends to persons other than the parties to the actual bailment contract, the limits of the bailor’s liability are not to be determined alone by the provisions and warranties of the contract of bailment, but also by the limits imposed by the doctrine of proximate cause, that is, whether the defendant ... should have foreseen the consequences of its alleged negligence, as a natural and probable result.

(Citation and punctuation omitted.) Prince v. Atlanta Coca-Cola Bottling Co., 210 Ga. App. 108, 110 (2) (435 SE2d 482) (1993). “In general,... the bailor has the duty to exercise ordinary care to inspect the bailed article before delivery to ascertain if it were in a reasonably safe condition to avoid injury to another. For breach of this duty, the bailor may be liable to any person proximately injured thereby.” (Citations omitted.) Adams, Georgia Law of Torts, § 11:2 (2011-2012 ed.).

Sterling Equipment and Lane do not deny that a bailor can owe a duty to a third party but argue that, under the terms of the lease, Coastal Logging accepted the duty, superseding any such duty Sterling Equipment and Lane may have had. We recognize that it is possible for bailors and bailees to enter contracts that effect such transfers of responsibility.

[E]ven though a bailor ^warrants that a chattel is free from latent defects, impliedly warrants that the chattel is sound, suitable, and fit for the purpose of the intended use, has a duty to keep the bailed property in repair for the purpose of the bailment, and should inspect the chattel before delivery to the bailee to ascertain if it is in reasonably safe condition to avoid injury to another — particularly where the chattel is of a type which could be dangerous to life, limb, or property — the parties are free to contract and may by express agreement enlarge, abridge, qualify, or supersede obligations that otherwise would arise from the bailment by implication of law — so long as the contract does not violate statutory law or contravene public policy — and, so long as such restrictions are expressed in clear and unambiguous language.

(Citations omitted.) Hall v. Skate Escape, 171 Ga. App. 178, 179 (319 SE2d 67) (1984). But the subject lease did not effect such a transfer. The lease between Sterling Equipment and Coastal Logging provided that Coastal Logging “accept[ed] this vehicle/trailer for consideration, full control, operations and management to operate in interstate and intrastate commerce under the established Logging operations.” The defendants argue that this phrase means that Coastal Logging had the exclusive responsibility to inspect and maintain the truck and trailer, and amounted to an exculpatory clause by which they relinquished their duties as bailors. But this language does not clearly and unambiguously “abridge, qualify, or supersede obligations that otherwise would arise from the bailment by implication of law,” Hall, 171 Ga. App. at 179, and the defendants cite no authority showing otherwise.

The defendants argue that they are entitled to summary judgment because the plaintiffs waived their rights under a bailment theory since Coastal Logging could have discovered any defect through reasonable inspection. They rely on Parker v. Loving & Co., 13 Ga. App. 284, 286 (79 SE 77) (1913), where we held that

[i]f the bailee knows of the defect or in the exercise of ordinary care ought to discover it, and, notwithstanding this actual or implied knowledge, he uses the thing and injury results on account of the defect, he will be held to have waived his right to claim damages, since by the exercise of ordinary care he could have avoided the consequences of the bailor’s neglect.

But Parker further goes on to hold that, “what amount of care the bailee ought to use to discover the defect is a question of fact for the jury.” Id.

3. The plaintiffs argue that Lane can be held personally liable because he directly participated in negligent acts. “An officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor.” (Citations and punctuation omitted.) Fields Bros. Gen. Contractors v. Ruecksties, 288 Ga. App. 674, 677 (2) (655 SE2d 282) (2007). And

one who is damaged as the result of a tort that is actually committed by a corporate agent may sue either the individual agent, seeking to establish the agent’s personal liability for the damages, or the corporation, seeking to establish its vicarious liability for the torts of its agent, or the injured party can sue both.

Smith v. Hawks, 182 Ga. App. 379, 384 (4) (355 SE2d 669) (1987).

Contrary to the defendants’ position, Lane did testify that he personally inspected the truck: before buying the truck, he inspected it by “[j]ust a general walk around, cranked it up, checked the oil pressure, things such as that.” Moreover, Lane testified that he was the only person who inspected the truck before Sterling Equipment bought it. Similarly, he was the only person to inspect the headache rack before Sterling Equipment decided to buy the truck, although he did not evaluate the welds or how the rack was affixed to the frame. He also testified that he purchased the truck for resale with the intent of leasing it to Coastal Logging until it was sold. This is some evidence that Lane actually committed a tort — the negligent inspection of the object of the bailment — sufficient to defeat summary judgment, and we reverse the grant of summary judgment to Lane.

Judgment reversed.

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

Decided May 17, 2012.

Blasingame, Burch, Garrard & Ashley, Adam B. Land, Andrew J. Hill III, Janna M. Blasingame, for appellants.

Lewis, Brisbois, Bisgaard & Smith, Brantley C. Rowlen, for appellees.


author: Dillard, Judge.

text:
    A12A0458.
    ADAMS v. THE STATE.
    (728 SE2d 260)
   Dillard, Judge.

Following trial, a jury convicted Ronald Adams on one count each of burglary, theft by taking, possession of cocaine with intent to distribute, and possession of cocaine. Adams appeals his convictions and the denial of his motion for new trial, arguing that the trial court erred in admitting a witness’s out-of-court statements into evidence and in dismissing a juror ex parte just prior to the beginning of deliberations. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the evidence demonstrates that on the night of July 17, 2007, a local scrap metal company was burglarized with the thieves stealing scrap metal worth several thousand dollars. Surveillance footage recorded that night by the scrap metal company’s video-surveillance cameras showed a person climbing over a fence into the back of the company’s property, throwing a significant amount of copper wiring and other met als belonging to the company over the fence, climbing back over the fence, and then escaping in a sport utility vehicle (SUV) driven by a second person. And although a local police detective reviewed the surveillance footage the next day, he was unable to identify the thieves.

Nearly two weeks later, just after midnight on July 30, 2007, the scrap metal company was once again burglarized. This time the thieves, who apparently used a bolt cutter to cut the lock on the fence in the back of the company’s property, stole more scrap metal, a metal cutting torch, and several propane tanks that powered the torch. However, after the first burglary, the scrap metal company installed additional surveillance cameras, which provided a better view of the second burglary. And indeed, upon reviewing the surveillance footage of the thieves involved in the second burglary later that morning after it occurred, the same investigating detective who had reviewed the first surveillance footage now recognized one of the perpetrators as Adams, whom he had known for several years. Additionally, the detective recognized the SUV shown in the surveillance footage as belonging to Adams.

Later that same day, the detective obtained a warrant to search Adams’s residence and SUV. When the detective arrived at Adams’s residence, he saw Adams leaving in his SUV. Consequently, the detective initiated a traffic stop by activating his vehicle’s blue lights and pulling in front of Adams’s SUV. Adams stopped, and as he exited his vehicle, the detective saw him throw a small white container toward some nearby bushes. The detective retrieved the container and found several pieces of crack cocaine inside it. In addition, the detective found a recent Walmart receipt for bolt cutters in Adams’s pocket, bolt cutters inside Adams’s house, and several pieces of scrap metal in the back of Adams’s SUV.

Thereafter, Adams was indicted on two counts of burglary (Count 1 relating to the July 17 break-in and Count 2 relating to the July 30 break-in), two counts of theft by taking (Count 3 relating to the July 17 break-in and Count 4 relating to the July 30 break-in), one count of possession of cocaine with intent to distribute, and one count of possession of cocaine. During Adams’s trial, the State played the surveillance recordings of both the July 17 and the July 30 break-ins, and the investigating detective testified regarding his recognition of Adams upon reviewing the July 30 recording as well as his subsequent arrest of Adams. In addition, the president of the scrap metal company and one of his employees testified regarding the break-ins and the value of the items stolen.

At the trial’s conclusion, the jury found Adams not guilty on the counts pertaining to the July 17 burglary but guilty on all remaining counts. Adams subsequently filed a motion for new trial, which the trial court denied after a hearing. This appeal follows.

1. Adams contends that the trial court erred by admitting the out-of-court statements of David Williams, Adams’s alleged accomplice to the burglary, arguing that the statements constituted hearsay and violated his Confrontation Clause rights. We disagree.

At the outset, we note that “[a]s a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appelláte courts will not disturb the exercise of that discretion absent evidence of its abuse.” During the trial of this matter, the State called David Williams, who had been charged as being Adams’s accomplice to the burglary and theft. However, immediately after being sworn in, Williams exclaimed that he had “no intention whatsoever to testify for the State.” After sending the jury out of the courtroom, the trial court had the State’s prosecutor continue to question Williams about whether he would testify, but Williams maintained that he would not.

At that point, the State’s prosecutor asked the trial court for permission to call the prosecutor’s investigator to testify about a statement the investigator obtained from Williams a few days earlier. Over Adams’s objection, the trial court declared that Williams’s refusal to testify rendered him unavailable, and thus, the court granted the prosecutor’s request to call her investigator as a witness. Thereafter, the investigator testified that he interviewed Williams a few days earlier at the sheriff’s office and that Williams admitted that he and Adams broke into the scrap metal company’s property and stole scrap metal.

When the trial recommenced the next day after an overnight recess, the trial court informed the State’s prosecutor and Adams that it now believed it had erred by allowing the investigator to testify about Williams’s out-of-court statements. The court then suggested that it would cure the error by allowing Adams to cross-examine Williams before the jury. Williams was then recalled as a witness, and under cross-examination, he denied providing any information whatsoever about the burglary to the prosecutor’s investigator.

Despite being given the opportunity to cross-examine Williams, Adams now argues on appeal that the introduction of Williams’s out-of-court statements constituted hearsay and violated his Confrontation Clause rights under the Sixth Amendment. We agree that the trial court erred by initially admitting Williams’s out-of-court statements. It is well established that “[t]he confrontation clause imposes an absolute bar to admitting out-of-court statements in evidence when they are testimonial in nature, and when the defendant does not have an opportunity to cross-examine the declarant.” And here, Williams’s in-custody statement to the prosecutor’s investigator was testimonial inasmuch as it was obtained to further the State’s investigation of the case. And at the time that Williams’s statements were introduced into evidence, via the investigator’s testimony, Adams had not yet been given an opportunity to cross-examine Williams because of Williams’s refusal to testify. It therefore follows that Williams’s statements to the prosecutor’s investigator were initially admitted erroneously.

Nevertheless, we conclude that the trial court cured its error by permitting Adams to recall Williams as a witness and allowing Adams to cross-examine him. Indeed, when the declarant appears for cross-examination at trial, “the Confrontation Clause places no constraints at all on the use of [his] prior testimonial statements.” And given that Adams was afforded the opportunity to confront and cross-examine Williams, and in doing so obtained testimony that contradicted the investigator’s testimony, the trial court’s error in initially admitting Williams’s out-of-court statement was cured and, therefore, is not grounds for reversal.

Moreover, even if we were to assume for the sake of argument that making Williams available for cross-examination did not cure the trial court’s initial error, the admission of Williams’s out-of-court statements was harmless in light of the overwhelming evidence against Adams. As previously noted, the July 30 burglary was recorded by the scrap metal company’s surveillance cameras, and the investigating detective, who knew Adams from previous encounters, positively identified Adams as being one of the burglars shown in the surveillance footage as did the jury as evidenced by the verdict. Furthermore, a receipt for bolt cutters, which employees of the scrap metal company surmised were used to cut the lock on the facility’s back gate, was found on Adams, actual bolt cutters were found at his residence, and pieces of scrap metal were found inside his SUV. Under these circumstances, it is highly probable that Williams’s out-of-court statements did not contribute to the jury’s guilty verdict.

2. Adams also contends that the trial court erred in dismissing a juror ex parte just prior to the beginning of the jury’s deliberations, thereby violating his right to be present at all critical stages of his trial. We disagree.

Embodied within the right to the courts under the Georgia Constitution, is a criminal defendant’s right “to be present and see and hear, all the proceedings which are had against him on the trial before the Court.” Indeed, the right to be present “is a fundamental right and a foundational aspect of due process of law.” And our Supreme Court has “acknowledged that proceedings at which the jury composition is selected or changed are critical stages at which the defendant is entitled to be present.” Accordingly, where the accused is involuntarily absent from the proceedings, “the trial judge should have no communications with a juror about the case, except as to matters relating to the comfort and convenience of the jury.”

In the case sub judice, after charging the jury, the trial court recessed for lunch and instructed the jurors to refrain from beginning their deliberations until they returned. But upon the jury returning from lunch and beginning their deliberations, the trial court informed the State’s prosecutor and Adams’s counsel on the record that during the lunch recess, one of the jurors learned that a storm had just knocked down a large tree onto the juror’s house. The court further explained that because the juror was extremely upset, the court excused her and sent the alternate juror in to deliberate. Neither the State’s prosecutor nor Adams’s counsel objected, but based on our review of the record, it does not appear that Adams was present in the courtroom at the time.

But a short time later, while the jury continued to deliberate, Adams’s counsel informed the trial court that Adams had inquired about the excused juror. Addressing Adams directly, the trial court responded as follows:

Mr. Adams, shortly before lunch because of our extreme weather, [the excused juror] had a tree fall on her house, collapse her roof. And she was very distraught. She was upset and that is why we have extra jurors, so I was able to excuse her and the alternate was allowed to deliberate. It was a pretty bad situation.

Following the court’s remarks, neither of the parties lodged an objection, and Adams’s counsel responded to the court’s remarks by simply stating, “Thank you, Judge.”

Nevertheless, Adams now argues that the trial court’s decision to excuse the juror ex parte violated his right to be present at all critical stages of his trial. However, although a defendant’s right to be present is fundamental, “the defendant is free to relinquish that right if he or she so chooses.” In fact, the right is waived “if the defendant personally waives it in court; if counsel waives it at the defendant’s express direction; if counsel waives it in open court while the defendant is present; or if counsel waives it and the defendant subsequently acquiesces in the waiver.” And here, the record shows that shortly after excusing the juror, the trial court explained its ex parte decision to both Adams and his counsel, and neither objected. Thus, at the very least, Adams acquiesced in his counsel’s waiver of his right to be present at all critical proceedings. Accordingly, the trial court’s ex parte dismissal of the juror does not warrant reversal of Adams’s convictions.

Judgment affirmed.

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

Decided May 2, 2012

Reconsideration denied May 18, 2012

Jennifer E. Hildebrand, for appellant.

Herbert E. Franklin, Jr., District Attorney, Kevin J. Baugh, Assistant District Attorney, for appellee.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       See OCGA § 16-7-1 (a).

       See OCGA § 16-8-2.

       See OCGA § 16-13-30 (b).

       See OCGA § 16-13-30 (a).

        See U. S. Const, amend. VI.

        Smith v. State, 302 Ga. App. 128, 130 (1) (690 SE2d 449) (2010) (punctuation omitted).

       Although not entirely clear from the record, prior to Adams’s trial, Williams apparently pleaded guilty to charges arising from the burglaries. However, when called as a witness by the State, Williams claimed that he was withdrawing his plea based on ineffective assistance of counsel.

        Soto v. State, 285 Ga. 367, 369 (2) (a) (677 SE2d 95) (2009) (punctuation omitted).

        See id. (holding that witness’s in-custody statement made during the course of police investigation was testimonial).

        See id.

        See id.

        Lott v. State, 281 Ga. App. 373, 374 (2) (636 SE2d 102) (2006) (quoting Crawford v. Washington, 541 U. S. 36, 59 (IV) (124 SC 1354, 158 LE2d 177) (2004)).

        See Lott, 281 Ga. App. at 374-75 (2) (holding that admission of witness’s statement to police was not reversible error because State located witness the day after her statement was read into evidence, and she was made available for cross-examination by defendant).

        See Soto, 285 Ga. at 371-72 (2) (c) (holding that witness’s out-of-court statement admitted in violation of the Confrontation Clause was harmless in light of overwhelming evidence of defendant’s guilt); Massey v. State, 306 Ga. App. 180,183 (2) (h) (702 SE2d 34) (2010) (holding that improper admission of evidence was harmless error in light of victim’s positive identification of defendant as perpetrator); Lawrence v. State, 305 Ga. App. 199,202-03 (3) (699 SE2d 406) (2010) (same).

        See Ga. Const. (1983) Art. I, Sec. I, Par. XII.

        Ward v. State, 288 Ga. 641, 645 (4) (706 SE2d 430) (2011) (punctuation omitted).

        Hampton v. State, 282 Ga. 490, 491-92 (2) (a) (651 SE2d 698) (2007); see also Tennessee v. Lane, 541 U. S. 509, 523 (IV) (124 SC 1978, 158 LE2d 820) (2004).

        Ward, 288 Ga. at 645 (4) (punctuation omitted).

        Id. at 645-46 (4) (punctuation omitted).

        Id. at 646 (4).

        Id. (punctuation omitted); see Hampton, 282 Ga. at 492 (2) (a); Harmon v. State, 224 Ga. App. 890, 891 (1) (482 SE2d 730) (1997).

        See Hampton, 282 Ga. at 492 (2) (holding that trial court’s interviews of two jurors without defendant present did not violate defendant’s right to be present at all critical proceedings because, in part, defendant acquiesced in his counsel’s waiver of the right); Harmon, 224 Ga. App. at 891-92 (2) (holding that defendant waived his right to be present at critical proceedings when trial court informed defendant that it had excused two potential jurors ex parte and defendant made no objection until the jury was selected and sworn). Compare Ward, 288 Ga. at 646 (4) (holding that defendant’s right to be present was violated and reversal was required when trial court discharged juror ex parte and informed counsel, but no evidence indicated that defendant was even informed of discharge, much less acquiesced to it, until post-conviction).


text:
    A12A0153.
    DOVE v. TY COBB HEALTHCARE SYSTEMS, INC.
    (729 SE2d 58)
   Dillard, Judge.

Ann Royston Dove initially filed a medical-malpractice action on behalf of her deceased mother’s estate against a nursing home operated by Ty Cobb Healthcare Systems, Inc. In Dove v. Ty Cobb Healthcare Systems, Inc. (Dove I), we affirmed the trial court’s grant of the nursing home’s motion for partial summary judgment on the ground that the majority of Dove’s claims were barred by the statute of limitation. Thereafter, Dove amended her complaint by stating the same facts but alleging that such facts amounted to simple negligence rather than professional negligence. Dove now appeals an order dismissing her amended complaint, arguing that the trial court erred in ruling that the majority of her claims were precluded by res judicata and that her remaining claims required dismissal because they still alleged professional negligence but were no longer supported by an expert affidavit. For the reasons set forth infra, we affirm the trial court’s ruling that the majority of Dove’s claims are precluded by res judicata, but we reverse the dismissal of Dove’s remaining claims and remand the case for further proceedings.

The relevant facts as summarized in Dove I show that Dove’s 81-year-old mother was admitted to the nursing home in 2000. Shortly thereafter, Dove began to observe incidents suggesting that the nursing home staff had rendered professionally negligent care to her mother. And over the course of the next five years (2000-2005), Dove cataloged numerous injuries that her mother allegedly suffered as a result of the nursing staff’s professional negligence. Nevertheless, -Dove’s mother remained at the nursing home until she passed away in February 2007.

In May 2007, Dove filed suit on behalf of her mother’s estate against the nursing home, alleging that the nursing staff had deviated from the professional standard of care in her mother’s treatment and, after amending, that the staff had misrepresented how some of her mother’s injuries occurred. The nursing home filed a motion for partial summary judgment, arguing that Dove’s claims based upon alleged incidents that occurred prior to May 2005 were barred by the statute of limitation. The trial court granted the nursing home’s motion, and we affirmed, holding that even if the nursing home had engaged in fraud, the two-year statute of limitation was not tolled because Dove knew all the facts necessary to show malpractice before the running of the limitation period.

Subsequently, Dove filed a third amended complaint, in which she reasserted the same facts as her previous complaints. However, she recharacterized her claims as alleging simple negligence on the part of the nursing home staff. The nursing home filed an answer, asserting that to the extent any of Dove’s claims alleged a failure to exercise medical judgment, such claims should be dismissed because they were not supported by an expert affidavit and that any claims previously adjudicated should also be dismissed. On the same day that it filed its answer to Dove’s third amended complaint, the nursing home also filed a motion to dismiss, specifically arguing that all but two of Dove’s simple negligence claims had already been adjudicated by the court’s earlier summary judgment order and the Court of Appeals opinion affirming that order. Thus, the nursing home argued that those claims were precluded by res judicata.

Several weeks later, the trial court held a hearing on the matter, during which Dove stipulated that she was no longer alleging any medical-malpractice claims and that the claims in her third amended complaint, which were based on the same set of facts, were for simple negligence. The nursing home then argued that all of the claims that had been previously adjudicated by the trial court’s summary judgment order were precluded by res judicata regardless of the fact that Dove was now characterizing those claims as simple negligence rather than medical malpractice. The nursing home further argued that Dove’s two remaining claims that had not been previously adjudicated — Paragraphs 7 (e) and 7 (f) of the third amended complaint— should be dismissed because they were medical-malpractice claims, regardless of Dove’s assertions to the contrary, which were no longer supported by an expert affidavit. The trial court agreed and issued an order dismissing Dove’s third amended complaint. This appeal follows.

At the outset, we note that on appeal, this Court conducts “a de novo review of a trial court’s ruling on a motion to dismiss.” In doing so, our role is “to determine whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiff’s favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts”; however, we “need not adopt a party’s legal conclusions based on these facts.” With these guiding principles in mind, we will now address Dove’s arguments.

1. Dove contends that the trial court erred in dismissing all but two of her claims on the ground that those claims were previously adjudicated and, therefore, are precluded by the doctrine of res judicata. We disagree.

It is well established that “[t]he doctrine of res judicata prevents the relitigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action.” Indeed, the doctrine of res judicata “prevents a plaintiff from instituting a second complaint against a defendant on a claim that has already been brought, after having previously been adjudged not to be entitled to the recovery sought on that claim.” And three prerequisites must be satisfied before res judicata applies — “(1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.”

In the case sub judice, it is undisputed that there is identity of the parties and a previous adjudication. It is likewise undisputed that Dove’s third amended complaint is based on the identical set of facts alleged in her previous complaints with the only difference being that she now has characterized those allegations as constituting simple negligence instead of professional negligence. And while Dove argues that she is not prohibited from recasting her complaint in such a manner, the doctrine of res judicata “bars subsequent actions as to all matter[s] put in issue or which could have been put in issue.” Specifically, one must assert “all claims for relief concerning the same subject matter in one lawsuit and any claims for relief concerning that same subject matter which are not raised will be res judicata.” Accordingly, because the nursing home showed sufficient identity of parties, identity of issues, and an adjudication on the merits, the trial court did not err in ruling that all but two of Dove’s claims in her third amended complaint are precluded by res judicata.

2. Dove also contends that the trial court erred in dismissing her two remaining claims on the ground that those claims alleged professional negligence, despite Dove’s characterization of them, but were now no longer supported by an expert affidavit. Specifically, Dove argues that this issue was not properly before the court and that, regardless, her remaining claims constituted simple negligence and did not require the support of an expert affidavit. And because the nursing home did not file a motion to dismiss Dove’s claims for failure to file an expert affidavit, we are constrained to reverse the portion of the trial court’s order dismissing Dove’s two remaining claims that are not precluded by res judicata.

As we have previously held, a plaintiff’s failure to file an expert affidavit, pursuant to OCGA § 9-11-9.1, is a defense that can be waived if a defendant does not assert such a defense by filing a separate motion to dismiss on that ground contemporaneously with its answer. Furthermore, we recently reiterated that OCGA § 9-11-9.1 (e) requires a defendant seeking to dismiss a medical-malpractice action — based upon a plaintiff’s failure to file an adequate expert affidavit — to allege with specificity in its motion to dismiss the reason that plaintiff’s filing was inadequate. And here, the nursing home filed a motion to dismiss, arguing that the majority of Dove’s claims were precluded by res judicata. However, in that motion, the nursing home did not argue that Dove’s claims should also be dismissed because she failed to file an expert affidavit with her third amended complaint. Moreover, the fact that the parties argued during the hearing that Dove’s claims now lacked a supporting expert affidavit did not obviate the requirement that the nursing home assert such argument in its motion to dismiss. Given these circumstances, the trial court erred in prematurely dismissing Dove’s two remaining claims that had not been previously adjudicated. Accordingly, we reverse the portion of the trial court’s order dismissing those two remaining claims — Paragraphs 7 (e) and 7 (f) of Dove’s third amended complaint — and remand the case for further proceedings consistent with this opinion.

Decided May 18, 2012.

Thomas M. Strickland, for appellant.

McClure, Ramsay, Dickerson & Escoe, John A. Dickerson, for appellee.

Judgment affirmed in part and reversed in part, and case remanded in part.

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

       305 Ga. App. 13 (699 SE2d 355) (2010).

        Id. at 14.

        Id.

        Id. at 14-15.

        Id. at 15.

        Id.

        Id.

        Id. at 15-16.

        Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145,145(682SE2dl65) (2009).

        Id. (punctuation omitted).

        Sw. Health & Wellness, LLC v. Work, 282 Ga. App. 619, 623 (2) (639 SE2d 570) (2006) (punctuation omitted).

        Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865 (1) (463 SE2d 5) (1995) (per curiam).

        Id. at 865-66 (1).

        Id. at 866 (1).

        See Towe v. Connors, 284 Ga. App. 320, 321 (644 SE2d 176) (2007) (“Dismissal based upon the expiration of the statute of limitation is in essence dismissal for failure to state a claim upon which relief can he granted!, and a] dismissal on this ground is a decision on the merits, and the doctrine of res judicata bars a subsequent lawsuit on this claim.” (citation omitted)).

        See QoS Networks, Ltd. v. Warburg, Pincus & Co., 294 Ga. App. 528,532 (1) (b) (669 SE2d 536) (2008) (holding that the question in determining whether an issue has already been decided by another court “is whether both claims arose from the same set of facts,” which can, in turn, be ascertained by examining “the subject-matter and the issues as raised by the pleadings in the two cases.” (punctuation omitted)).

        Id.-, see OCGA §9-12-40.

        QoS Networks, Ltd., 294 Ga. App. at 532 (1) (b) (punctuation omitted); see CenTrust Mtg. Corp. v. Smith & Jenkins, P.C., 220 Ga. App. 394, 397 (2) (469 SE2d 466) (1996).

        See QoS Networks, Ltd., 294 Ga. App. at 533 (1) (c).

        See Chandler, 299 Ga. App. at 147-48 (2) (holding that defendant’s failure to file a separate motion to dismiss plaintiffs’ complaint for failure to file an expert affidavit contemporaneously with their answer waived defendant’s objection to plaintiffs renewing their complaint).

        See Ndlovu v. Pham, 314 Ga. App. 337, 342 (723 SE2d 729) (2012) (“The inadequacy for which the court below dismissed the case is not one identified with specificity in the motion to dismiss, and the dismissal of the case, therefore, was error.” (punctuation omitted)); Tucker v. Thomas C. Talley, M.D., P.C., 267 Ga. App. 820, 822 (1) (600 SE2d 778) (2004) (holding that because defendants did not object with specificity to the plaintiff’s affidavit, they were not entitled to a dismissal for failure to state a claim on account of a failure to comply with OCGA § 9-11-9.1).

        See Ndlovu, 314 Ga. App. at 341-43 (holding that the trial court erred in dismissing plaintiff’s medical malpractice case based on an inadequate expert affidavit when it did so on grounds not specifically argued in defendants’ motion to dismiss and further holding that plaintiff’s notice of affidavit’s inadequacy could not form a sufficient basis for dismissal); see also Chandler, 299 Ga. App. at 147-48 (2) (holding that trial court erred in dismissing plaintiffs’ complaint because defendants failed to file a separate motion to dismiss based on lack of an expert affidavit with their answer).


author: Phipps, Presiding Judge.

text:
    A12A0390.
    GOODEN v. THE STATE.
    (728 SE2d 693)
   Phipps, Presiding Judge.

Jimmy Gooden was convicted of committing against his 17-year-old daughter J. G. the crimes of forcible rape, incest, terroristic threat, and simple battery. On appeal, Gooden challenges the denial of his motion for mistrial, which asserted that J. G.’s credibility had been impermissibly bolstered. Gooden challenges also the denial of his motion for new trial, which asserted that his trial counsel had rendered ineffective assistance. We affirm.

At the jury trial, the state presented the following evidence. The underlying incident occurred on the night of August 10, 2002. For about two years, J. G. had been living with Gooden, his wife, and their two children. And that night, Gooden, his wife, and the children were all out of town. J. G. and a classmate had gone to church, then returned to J. G.’s residence. At about 11:30, while J. G. and her classmate were talking in the den, Gooden unexpectedly arrived. J. G. told her classmate to hide because her father had specifically told her that she could not have any visitor at the residence that night. Her classmate scurried into a room adjacent to the den.

J. G. testified that, while she was in the den with Gooden, he ordered her to take off her clothes and get onto the daybed. Given his prior threats to kill her if he ever got arrested for sexually abusing her, she complied out of fear. He took off his pants and engaged in sexual intercourse with her, while she prayed aloud for God to help her. Afterwards, Gooden discovered J. G.’s classmate hiding in the adjacent room. He locked her in that room, returned to the den, began striking J. G., and asked why the girl was in the home, despite his explicit instruction that she (J. G.) have no company that night. J. G. explained that she had been afraid to be alone. Gooden left the residence, but before walking out, warned J. G. that if the girl was not gone by the time he returned, he would hurt them both. Terrified, J. G. called her older sister for help.

J. G.’s sister arrived at the residence in about ten minutes and drove J. G. and her classmate to a police station, where J. G. gave a statement to a police detective. The detective pursued warrants for Gooden’s arrest and for a search of his residence. Also, a police officer was posted outside Gooden’s residence to await his return and to then summon other officers.

That same night, J. G. was taken to a hospital, where a pediatrician examined her. He found a fresh tear of her vaginal tissue, which injury, he opined, was consistent with forcible abuse. Inside the vaginal vault, the pediatrician found a copious amount of seminal fluid, a sample of which he microscopically examined and detected motile sperm.

At about 8:00 a.m., Gooden returned to his residence. The awaiting officer detained him at his driveway, until summoned officers arrived. One of the officers explained to Gooden why he was being detained; Gooden was “cooperative,” and he gave police consent to search his residence and his vehicle. With the searches underway and the warrants meanwhile obtained, another officer arrived to take Gooden into custody. That officer advised Gooden that he was under arrest pursuant to a warrant, then transported him to the police station. There, Gooden talked briefly to officers and wrote a partial police statement.

To corroborate J. G.’s account, the state presented the testimony of J. G.’s classmate, similar transaction evidence, and evidence of prior difficulties. J. G.’s classmate recalled that she and J. G. were watching television in the den when Gooden arrived unexpectedly. While hiding in an adjacent room, the classmate heard Gooden tell J. G. to turn off the television and take off her clothes. Next, the classmate heard J. G. pleading something to the effect: “[W]hy me, Lord... oh, my God, help me, Lord”; while J. G.’s pleas were ongoing, Gooden repeatedly told J. G. to “stop saying that” because “you [are] making me not want to do this.” Thereafter, the classmate testified, Gooden came to the door of the room in which she was hiding, locked her inside, told J. G. to convince her that what she had heard was the television, then left the residence.

As similar transaction evidence to show Gooden’s bent of mind, course of conduct, modus operandi, and intent, the state presented the testimony of J. G.’s sister, who picked up J. G. and her classmate that night. She stated that when she was about five or six years old and living with Gooden and her mother, Gooden sometimes fondled her genital area, which conduct escalated to sexual intercourse by the time she was about 12 years old, when her mother left Gooden.

As evidence of prior difficulties, the state presented J. G.’s testimony that Gooden had repeatedly forced sexual intercourse upon her during the six months immediately before the night in question. J. G. further testified that Gooden had forced sexual intercourse on her previously, when she was between eight and twelve years old and living with Gooden and another former wife.

Gooden took the stand and denied the charged offenses pertaining to J. G., as well as J. G.’s allegations of prior sexual abuse. In addition, Gooden denied J. G.’s sister’s allegations of prior sexual abuse. Regarding J. G.’s sister, however, Gooden admitted that he had been charged with child molestation and thereupon pled guilty to a reduced charge of simple battery.

Gooden’s account of the night in question was that, after arriving home at about midnight, he began talking with J. G. in the den. He heard a noise in the adjacent room and was surprised to discover J. G.’s classmate hiding in there. He had explicitly told his daughter that she could not have a visitor at the house that evening, so he asked his daughter for an explanation. Gooden testified that “she just started saying, oh, God, help me, please help me.” Gooden stated that he was so angered that his daughter had disobeyed him that he left the premises, a dmonishing his daughter not to have any visitor by the time he returned. When he came back the next morning, he was approached by police. Gooden acknowledged that he consented to a search of his home and vehicle and that, when officers at the police station asked him whether he wanted to talk to them, he talked to them briefly. Gooden testified further that, because he had nothing to hide, he began writing a police statement. He stopped, however, when a police officer suggested that he wait for an attorney.

1. Gooden contends that the trial court should have granted his motion for mistrial because the pediatrician gave testimony that bolstered J. G.’s credibility.

The pediatrician was qualified, without objection, to testify as an expert in the “area of evaluation and treatment of assault victims.” He recounted that, prior to conducting the physical examination of J. G., he interviewed her by following an assault checklist, designed to obtain both general medical information and information specific to the event in question. This exchange between the prosecutor and the pediatrician followed:

Q: Specifically on your checklist, was there anything that was consistent with a victim of sexual assault?
A: I’m sorry, do you mean in terms of the history or in terms of the physical exam?
Q: In terms of the history. Let’s stick with the history.
A: I mean, she seemed reasonable, she was fearful, but I believed she was telling me the truth.

Gooden’s lawyer objected, and the court immediately charged:

Ladies and gentlemen, as instructed in your preliminary instructions, credibility is strictly a matter for the jury, strictly a matter for the jury. And I caution you, I caution the witness, I caution the State. So the relevance of any person’s testimony on that fact is strictly — well, it is strictly irrelevant. And, therefore, that is ordered stricken, that testimony. And you are ordered to strike it from your mind, recognizing that it is solely for you, you are the sole judges of the credibility of witnesses.

The court asked Gooden’s lawyer whether he had any “further requests,” and the lawyer responded that he had a matter he wished to pursue outside the jury’s presence. And with the jury thereafter outside the courtroom, a defense motion for mistrial was argued, then denied.

“Whether to grant a motion for mistrial is within the trial court’s sound discretion, and the trial court’s exercise of that discretion will not be disturbed on appeal unless a mistrial is essential to preserve the defendant’s right to .a fair trial.”

“[A] witness’s credibility is exclusively a matter for the jury,” and “in no circumstance may a witness’s credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth.” Thus, the pediatrician’s testimony that he believed that J. G. had told him the truth was improper. But given the trial court’s immediate curative action — reminding the jury that credibility was exclusively its province and instructing the jury that the pediatrician’s testimony relating to J. G.’s credibility was improper, devoid of any relevance, and stricken, we find no abuse of discretion in the trial court’s refusal to grant a mistrial.

2. Gooden contends that the trial court erred by denying his motion for new trial based on his claim of ineffective assistance of counsel. To prevail on an ineffectiveness claim, a defendant must establish, pursuant to Strickland v. Washington, that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Both the performance and the prejudice prongs of the ineffectiveness inquiry are mixed questions of law and fact. In reviewing a trial court’s conclusion regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review the trial court’s legal conclusions de novo.

Gooden asserts that the prosecutor elicited from the arresting police officer impermissible testimony concerning his post-arrest silence. Gooden cites this portion of the state’s direct examination of that officer concerning the course of events surrounding taking Gooden into custody:

Q: Did you ever go to [Gooden’s residence]?
A: Yes, I did. To make contact, place Mr. Gooden into custody.
Q: And do you remember if any other officers were present when the Defendant was placed into custody?
A: [A second officer] was present, and I believe [a third officer] was present.
Q: When you all were there to detain the Defendant, did he make any statements?[]
A: No, ma’am, not to me.

The prosecutor asked this witness no other question about whether Gooden made any statement, turning instead to what transpired when J. G. was at the hospital, then to specifics about the arrest warrant.

Citing Mallory v. State and Reynolds v. State, Gooden maintains on appeal that the prosecutor’s question, italicized above, together with the answer, impermissibly injected his post-arrest silence into the proceedings and that his trial counsel should have objected thereto. The transcript of the hearing on motion for new trial does not contain trial counsel’s testimony revealing his reason for not objecting. But for reasons that follow, we find no error in the trial court’s rejection of Gooden’s ineffectiveness claim.

In Mallory, the Supreme Court of Georgia held that “in criminal cases, a comment upon a defendant’s silence or failure to come forward is far more prejudicial than probative.” The Court instructed: “such a comment will not be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense.” Later, in Reynolds, the Court explained:

This holding in Mallory is merely the recognition that the General Assembly has, by its enactment of OCGA § 24-3-36,[] formulated an evidentiary rule which dictates that under certain circumstances, a defendant’s silence or inaction will rise to the level of an admission; certainly in the situation of a criminal defendant, this failure to speak or act will most often be judged as evidence of the admission of criminal responsibility. Thus, the element of prejudice is indisputable.

Notably, in the recent case of Rogers v. State, the Court analyzed the appellant’s “refusal to answer a particular question” during the course of a lengthy Mirandized statement. Such circumstances, the Court concluded, did not amount to “an invocation of the right to silence so as to raise the concerns addressed in Mallory v. State.”

Analysis of the pertinent circumstances underlying this case demands the same conclusion. The uncontroverted evidence showed that, while Gooden was being detained at his residence, he remained cooperative with police, including consenting to searches of his residence and vehicle. Even after being formally arrested and transported to jail, Gooden continued to answer police questions and provided a partial written statement. Given these circumstances, the question and answer at issue did not show that Gooden thereby made “an invocation of the right to silence so as to raise the concerns addressed in Mallory .” Indeed, the prosecutor made no effort during the state’s closing argument to persuade the jury to infer Gooden’s guilt from the arresting officer’s tempered testimony — that Gooden had made no statement, at least, not to him. “Accordingly, analyzing the [contested question and answer] in context, it is very unlikely to have had any impact on the jury’s determination of guilt.”

Decided May 18, 2012.

Steven E. Phillips, for appellant.

Moreover, the evidence of Gooden’s guilt was strong. The incident underlying the sexual charges occurred at a time when Gooden admittedly believed he was alone with J. G. But J. G.’s classmate was hiding in an adjacent room, and her account of what occurred corroborated that of J. G. Additionally, J. G.’s account was corroborated by medical findings, similar transaction evidence, and evidence of prior difficulties.

Thus, Gooden has failed to show the prejudice required under Strickland — a reasonable probability that, but for trial counsel’s failure to object to the cited question by the prosecutor, the outcome of his trial would have been different. The trial court therefore did not err in rejecting his claim of ineffective assistance of trial counsel.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

Paul L. Howard, Jr., District Attorney, David K. Getachew-Smith, Assistant District Attorney, for appellee.

       Gooden was the father of both girls, who had different mothers.

        Childs v. State, 287 Ga. 488, 492 (4) (696 SE2d 670) (2010) (citation and punctuation omitted).

        Head v. State, 253 Ga. App. 757 (1) (560 SE2d 536) (2002); see Goldstein v. State, 283 Ga. App. 1, 9 (3) (c) (640 SE2d 599) (2006).

        Goldstein, supra (citation and punctuation omitted); see Head, supra.

       See Goldstein, supra (police officer’s testimony that the victim “was very consistent. .. I was very convinced that this had happened to her. I don’t believe that she could have made it up” was improper); Head, supra (testimony by a “victim advocate” that she believed the victim was improper).

       See Cook v. State, 276 Ga. App. 803, 806-807 (3) (625 SE2d 83) (2005) (trial court’s curative instruction for jury to disregard improper testimony was the proper corrective measure and trial court did not abuse its discretion by refusing to grant mistrial); Head, supra (same); see also Goldstein, supra (mistrial was not mandated where trial counsel objected and court gave brief curative instruction).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Suggs v. State, 272 Ga. 85, 87 (4) (526 SE2d 347) (2000).

       Id. at 87-88 (4).

       Id. at 88 (4).

       (Emphasis supplied.)

       261 Ga. 625 (409 SE2d 839) (1991), overruled on other grounds, Clark v. State, 271 Ga. 6, 9-10 (5) (515 SE2d 155) (1999).

       285 Ga. 70 (673 SE2d 854) (2009).

       See, e.g., Collins v. State, 289 Ga. 666, 667-668 (2) (715 SE2d 136) (2011) (recognizing that a question posed at trial by the prosecutor about appellant’s failure to talk to police may be improper under Mallory).

       Gooden’s post-conviction lawyer reported at the new trial hearing that Gooden’s trial lawyer was deceased.

        Mallory, supra at 630 (5) (emphasis supplied).

       Id.

       (“Acquiescence or silence, when the circumstances require an answer, a denial, or other conduct, may amount to an admission.”).

        Reynolds, supra at 71 (emphasis supplied).

       290 Ga. 401 (721 SE2d 864) (2012).

       Id. at 404-406 (2).

       Id. at 406 (2) (punctuation omitted).

       Id. (punctuation omitted); see Gilyard v. State, 288 Ga. 800, 802-803 (2) (708 SE2d 329) (2011) (because appellant spoke with police without ever invoking his right to remain silent, the prosecutor’s line of questioning did not constitute impermissible commentary on appellant’s right to remain silent) (contrasting Mallory).

       See generally Brewer v. Hall, 278 Ga. 511, 514 (3) (603 SE2d244) (2004); Hardy v. State, 301 Ga. App. 115, 116 (2) (686 SE2d 789) (2009) (if the testimony concerning remaining silent is made during a narrative on the part of authorities of a course of events and apparently was not intended to, nor did it have the effect of, being probative on the guilt or innocence of the defendant, then the testimony is not prejudicial).

        Brewer, supra; see Rogers, supra; Gilyard, supra.

       See generally Brewer, supra (finding evidence strong, where appellant was charged with child molestation and burglary after he broke into a house and made forcible sexual advances on a 12-year-old girl, whose friend, also a 12-year-old girl, witnessed the incident; and both girls identified appellant as the perpetrator before and during trial).

       See Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009). See generally Rogers, supra; Gilyard, supra; Brewer, supra (where the improper testimony from the police officer was harmless beyond a reasonable doubt, defendant was not prejudiced by his trial counsel’s failure to object to the testimony); Hardy, supra.

       See Suggs, supra.