text:
    A11A0661.
    THE STATE v. KENDRICK.
    (711 SE2d 420)
   PHIPPS, Presiding Judge.

Charged with the burglary of a dwelling house of another with the intent to commit a theft therein, Michael Kendrick moved to exclude statements he made to a police patrol officer and to a police investigator. The trial court conducted a hearing, after which it granted Kendrick’s motion. In this appeal, the state contests the exclusion of the statement to the police investigator, but has demonstrated no reversible error. We affirm.

The evidence, which was presented at the hearing through the testimony of the patrol officer and the investigator, showed the following. On June 11, 2010, the patrol officer’s suspicion was aroused when he observed a man, holding a ceiling fan, approach and say something to one, and then another, individual in a parking lot. The officer drove his unmarked patrol car into the parking lot to determine what the man was doing with the fan. As the officer drove close to him, the man flagged down the officer and volunteered that he had not stolen the fan, that he had gotten it from his house, and that he merely was trying to sell it. The officer, who was wearing a black police raid vest that displayed both a city police patch and the word “POLICE” in yellow letters, got out of his car, stood within an arm’s length of the man, and asked him to explain again why he had the fan. The man answered that he was simply trying to make some money. The officer told the man that he did not believe his claim that he had gotten the fan from his house and then asked the man for identification. The man told the officer his name. The officer recounted that the man stated that he had no identifying documentation with him, “Sol detained him. ’ ’ And the officer so informed the man that he was going to detain him for further investigation. At the hearing, the officer identified the man as Kendrick, testifying further that, at that point in their encounter, “[Kendrick] was not free to leave” because he still had not determined where Kendrick had gotten the fan.

Therefore, the officer continued his investigation, telling Kendrick several times that he needed to be honest and show him exactly where he had gotten the fan. Kendrick eventually said that he would, and the officer handcuffed him and put him in the back seat of his patrol car. Kendrick directed the officer to a pile of trash located a short distance down the street. Once there, the officer testified, Kendrick repeatedly told the officer that he had taken the fan from the pile of trash; each time, the officer told Kendrick that he did not believe him and told him to be honest with him. Kendrick eventually told the officer that he had taken the fan out of the abandoned house that was near the pile of trash, adding that a door to the house was already open.

The patrol officer called for a backup officer. When the backup officer arrived, he monitored Kendrick, while the patrol officer got out of his vehicle and peered into the house. He saw in one of the rooms wires hanging from the ceiling that indicated to him that a ceiling fan had been removed. The patrol officer conceded at the hearing that he never read Kendrick the Miranda rights. The patrol officer was thus asked, “Why not?” He answered, “I was going to take him to the precinct and let the investigator do his thing.”

Kendrick was transported by the backup officer in his marked police vehicle to the precinct. Still in handcuffs when he arrived there, Kendrick was taken to a room where he was joined by the patrol officer. The patrol officer summoned the investigator, who was already at the precinct. The investigator testified that, when he walked into the room, “[the patrol officer] briefed me of why he stopped Mr. Kendrick. And then I read Mr. Kendrick the Miranda warnings prior to even talking to him.” Kendrick stated that he would talk to the investigator without an attorney. The investigator asked Kendrick why he had been arrested, and Kendrick answered to the investigator that he had entered a house and taken a ceiling fan, adding that a door to the house was already open. Upon the investigator’s further questioning, Kendrick responded that he did not know of any other crimes and had not been involved in any other crimes, and the investigator ended the interview. The handcuffs had remained on Kendrick throughout the interview.

At the hearing on the motion to suppress, Kendrick’s lawyer argued that the statements made to the patrol officer after Kendrick was handcuffed were inadmissible under Miranda v. Arizona. His lawyer also argued that the statements he made to the investigator, albeit after the reading of the Miranda rights, were inadmissible under Missouri v. Seibert and State v. Pye.

1. As an initial matter, we note that the state made no argument to the trial court that Kendrick’s statements to the patrol officer after Kendrick was handcuffed are admissible. The trial court excluded Kendrick’s statements to the patrol officer after he was handcuffed, expressly finding that by that point, he was in custody and had not been read the Miranda rights. The state does not contest on appeal any aspect of the trial court’s ruling in that regard. Nevertheless, we conclude that the record supports the trial court’s ruling that the statements are inadmissible, based on its finding that Kendrick made them in response to a custodial interrogation and without the benefit of the Miranda warnings, as this conclusion is pertinent to the resolution of the state’s sole contention that the exclusion of Kendrick’s later statements to the investigator was reversible error.

2. The state maintains that Kendrick’s confession made to the investigator after the reading of the Miranda rights is admissible.

As Kendrick’s lawyer argued to the trial court, this case presents the type of situation that caused the United States Supreme Court concern in Seibert, and later, caused the Supreme Court of Georgia concern in Pye. In Seibert, the officers arrested the suspect, subjected her to custodial questioning without Miranda warnings, and obtained a confession. Then, after giving the arrestee a 20-minute coffee and cigarette break, police obtained from her a signed waiver of Miranda rights, and she gave a second confession. That second confession was inadmissible, Seibert held, because the “midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda’s constitutional requirement.” Incriminating statements made under similar circumstances by co-defendants in Pye were also ruled inadmissible.

As the Supreme Court of Georgia explained in Pye,

[t]he [United States] Supreme Court’s decision in Seibert deals with what the Court referred to as a “two stage” or “question first” interrogation procedure, in which police first question a suspect without administering Miranda warnings, gain a statement from the suspect, then administer Miranda warnings, and have the suspect repeat that which the suspect has already related, often with little interruption in time. The Court noted that in such circumstances, it is unlikely that the Miranda warnings will effectively advise a suspect of his rights.

This is because, as Seibert explained,

[u]pon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again. A more likely reaction on a suspect’s part would be perplexity about the reason for discussing rights at that point, bewilderment being an unpromising frame of mind for knowledgeable decision. What is worse, telling a suspect that “anything you say can and will he used against you,” without expressly excepting the statement just given, could lead to an entirely reasonable inference that what he has just said will be used, with subsequent silence being of no avail.

Thus, Seibert established an “effective warning” test. That is, when interrogators question first and warn later, the threshold issue is “whether it would be reasonable to find that in these circumstances the warnings could function ‘effectively’ as Miranda requires.” In reviewing a trial court’s analysis thereof, we uphold factual findings unless they are clearly erroneous and review the legal conclusions de novo.

The record in this case shows that the patrol officer detained Kendrick after being told that he had no identification documents and thus informed Kendrick of his detention for further investigation; soon, the officer handcuffed Kendrick and put him in the back seat of his patrol car; in response to custodial interrogation, and without the benefits of Miranda warnings, Kendrick gave a statement implicating himself in the crime of burglary; the patrol officer had withheld the Miranda warnings because he was “going to take [Kendrick] to the precinct and let the investigator do his thing”; after Kendrick was transported to the police precinct and the investigator read him the Miranda warnings, then asked him why he had been arrested, Kendrick gave a statement to the investigator that was essentially identical to what he had already said to the patrol officer. This “two stage” interrogation technique employed upon Kendrick is not materially distinguishable from those employed in Seibert and Pye. Both those cases noted that where

Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and deprive a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. By the same token, it would ordinarily be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle.

Nevertheless, the state maintains that Kendrick’s confession repeated after the investigator read the Miranda warnings is admissible under Oregon v. Elstad. The facts underlying Elstad are detailed in that opinion and further analyzed in Seibert- thus, they need not be repeated here. Suffice it to say that Elstad does not control this case for two reasons. First, the circumstances under which the Elstad defendant made his initial and unwarned incriminating statements had “none of the earmarks of coercion,” unlike here, and unlike in Seibert as that case so distinguished.

Second, the Seibert Court announced a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object:

the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.

Examination of those facts leads to the conclusion that the Miranda warnings in the instant case were not effective.

The patrol officer’s questioning of Kendrick was persistent and exhaustive. Indeed, when he finished, as were the situations in Seibert and in Pye, “there was little, if anything, of incriminating potential left unsaid.” The backup police officer who was summoned to the scene stayed with Kendrick while the patrol officer more closely inspected the abandoned house, then the backup officer transported Kendrick in his marked police car to the police precinct. Arriving at the precinct still in handcuffs, Kendrick was taken to a room where he was joined by the patrol officer and then the investigator. The patrol officer summarized the events that precipitated Kendrick’s arrest and transport to the precinct. In reciting to Kendrick the Miranda warnings, the investigator “said nothing to counter the probable misimpression that the advice that anything [Kendrick] said could be used against [him] also applied to the details of the inculpatory statement previously elicited” by the patrol officer. “In particular, the police did not advise that [Kendrick’s] prior statement could not be used.” Nothing was said or done to dispel the oddity of warning about legal rights to silence and counsel soon after the patrol officer had elicited a confession through persistent interrogation; and any uncertainty on Kendrick’s part about a right to stop talking about matters previously discussed would only have been aggravated since the patrol officer remained in the interrogating room. “There was nothing in the circumstances which allowed [Kendrick] to view the portion of the interrogation after Miranda warnings as presenting a markedly different experience from that portion of the interrogation before he was warned.”

It would have been reasonable to regard the two [questioning] sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before. These circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in [Kendrick’s] shoes would not have understood them to convey a message that [he] retained a choice about continuing to talk.

In its order granting Kendrick’s motion to suppress the statements, the trial court pertinently found that Kendrick’s statements to the investigator were made “close in time and [were] wholly repetitive of statements made during the un-Mirandized custodial interrogation of [Kendrick] by [the patrol officer].” The trial court’s factual findings are not clearly erroneous; and because the evidence showed further that “the midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda constitutional requirement,” the trial court did not err in ruling that Kendrick’s confession repeated after the warning is inadmissible.

Decided June 13, 2011.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Christopher M. Quinn, Assistant District Attorneys, for appellant.

Lauren B. Shubow, for appellee.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       The interview was not recorded, and Kendrick was not presented any Miranda waiver

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

       542 U. S. 600 (124 SC 2601, 159 LE2d 643) (2004).

       282 Ga. 796 (653 SE2d 450) (2007).

       See id. at 800-801, n. 7 (agreeing that certain statements were not admissible, even though state had not advocated that the statements were admissible).

       See id. at 802-803 (holding that unwarned responses to police questioning were properly excluded, where evidence supported trial court’s implicit finding that defendant was in custody during the interrogation). See also Jennings v. State, 282 Ga. 679, 681 (3) (653 SE2d 17) (2007) (using officer’s testimony on whether defendant was in police custody or “was free to leave” to determine whether suspect was in custody tor Miranda purposes); Quedens v. State, 280 Ga. 355, 358 (2) (629 SE2d 197) (2006) (for Miranda purposes, an individual is in custody if a reasonable person in the place of the defendant would feel so restrained as to equate to a formal arrest); State v. Wintker, 223 Ga. App. 65, 68-69 (476 SE2d 835) (1996) (holding that defendant was in custody for Miranda purposes when she was involuntarily confined in locked patrol car because, although not occurring in a police station, the defendant’s interrogation while so confined was equally isolated and police-dominated).

       See Division 2, infra. Cf., e.g., Timmreck v. State, 285 Ga. 39, 41 (2) (673 SE2d 198) (2009) (not reaching whether post-Miranda statements were admissible under Pye, where statements prior to Miranda were not made while defendant was in custody).

        Seibert, supra at 604-605 (I); see Wiggins v. State, 280 Ga. 627, 629 (2) (a) (632 SE2d 80) (2006) (summarizing Seibert).

        Seibert, supra at 605 (I).

       Id. at 604.

       See Pye, supra at 802-803.

       Id. at 799 (footnote omitted), citing Seibert, supra at 609-614.

        Seibert, supra at 613 (IV) (footnote omitted).

        Pye, supra at 799.

        Seibert, supra at 611-612 (IV) (also contrasting that Miranda, supra, addressed interrogation practices likely to disable an individual from making a free and rational choice about speaking and thus held that a suspect must be adequately and effectively advised of the choice the Constitution guarantees, whereas the object of question-first tactic is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them: after the suspect has already confessed).

        Pye, supra.

       See Division 1, supra.

       See Pye, supra at 800 and n. 6 (finding no requirement of any subjective intent by the police, because while the Seibert Court observed that the interrogation strategy employed there was admittedly deliberate, the Seibert Court specifically noted that a police policy “will rarely be as candidly admitted as it was here” and therefore declared that “the focus is on facts apart from intent that show the question-first tactic at work”).

        Seibert, supra at 613-614 (IV) (citation and punctuation omitted); Pye, supra at 801-802 (citation omitted); see Wiggins, supra.

       470 U. S. 298 (105 SC 1285, 84 LE2d 222) (1985).

        Seibert, supra at 614-615 (V).

        Elstad, supra at 316 (III) (citation omitted).

       See Division 1, supra.

        Seibert, supra at 614 (IV). Accord Timmreck, supra; Grayer v. State, 282 Ga. 224, 229 (3) (647 SE2d 264) (2007) (where, at the time appellant made his first statement, he was not under arrest and thus not subjected to custodial interrogation, his latter statement was not inadmissible under Seibert).

        Seibert, supra at 615 (V).

       See Pye, supra at 799-800 (instructing that Seibert requires an examination of certain circumstances to determine whether the Miranda warnings given were effective).

        Seibert, supra at 616 (V); Pye, supra at 802 (citation and punctuation omitted).

        Seibert, supra.

       Id. (footnote omitted).

       See id. See generally Franks v. State, 268 Ga. 238, 241 (486 SE2d 594) (1997) (describing the “cruel trilemma” confronting arrested suspects during custodial interrogations); Wells v. State, 297 Ga. App. 153, 164 (3) (c) (676 SE2d 821) (2009) (same).

        Pye, supra (punctuation omitted).

        Seibert, supra at 616-617 (V) (footnote omitted).

       See id. at 604; Pye, supra.


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A11A0120.
    ESPINOSA v. THE STATE.
    (711 SE2d 425)
   MILLER, Presiding Judge.

Following a jury trial, Kamal Hussein Espinosa was convicted of trafficking in cocaine (OCGA § 16-13-31 (a) (1)) and possession of marijuana with intent to distribute (OCGA § 16-13-30 (j) (1)). The trial court denied his motion for new trial. On appeal, Espinosa contends (i) that the trial court erred in admitting similar transaction evidence and (ii) that his trial counsel was ineffective for failing to interview a key witness to rebut the similar transaction evidence. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the trial evidence shows that officers of the Carrollton Police Department launched a drug investigation, in which Espinosa was a suspect. On June 30, 2006, the officers conducted surveillance of Espinosa. An officer observed and followed Espinosa as he departed from his residence at the Magnolia Lakes Apartments, traveled to the Northridge Apartment complex, and entered an apartment at the complex. Shortly thereafter, the officer noticed a steady stream of individuals entering and exiting the apartment. The officer testified that such high traffic activity was typical of a drug house operation. The officer continued to observe as Espinosa exited the apartment, approached a vehicle in the parking lot, and engaged in a suspected transaction with the vehicle occupants. The officer described that Espinosa reached his hand inside the passenger side window of the vehicle, pulled his hand back out, and placed his hand in his pocket.

Espinosa later left the apartment complex in a vehicle driven by another individual. The officers initiated a traffic stop of that vehicle. During the stop, the officers smelled the strong odor of green and burnt marijuana. Espinosa was taken into custody based upon an active arrest warrant. During a search incident to his arrest, the officers seized $3,035 in cash from Espinosa’s person.

The officers obtained search warrants for both Espinosa’s residence and the apartment at the Northridge Apartment complex. During the execution of the search warrant at Espinosa’s residence, the officers found several plastic baggies of the type commonly used for drug packaging. During the search of the apartment, the officers seized multiple bags of marijuana, powder and crack cocaine, ecstacy, a large amount of currency, a cell phone, digital scales, and plastic baggies commonly used for drug packaging and sales. The recovered substances tested positive as being marijuana and cocaine. The cocaine taken from two of the bags had a net weight of approximately 74.70 grams, with a purity of approximately 86.7 percent and 75 percent, respectively. The cocaine taken from another bag weighed approximately 226 grams, with a purity of approximately 54.2 percent.

The State also presented evidence of two similar transactions involving Espinosa. The first similar transaction occurred on or about June 23, 2006, approximately one week prior to Espinosa’s arrest. Officers were called to Espinosa’s residence to investigate the report of an armed robbery. Espinosa informed the officers that he had been robbed at gunpoint inside his apartment and that the perpetrators had stolen two video game systems and a watch. He further advised that the perpetrators fled through a grassy area, climbed a fence, and ran through the woodline behind the apartment. When the officers searched the area, they found a small bag of suspected cocaine lying in proximity to Espinosa’s watch. The officers also retrieved a garbage bag containing Espinosa’s video game systems and a bag of suspected marijuana. Thereafter, Espi-nosa became uncooperative in the investigation of the armed robbery incident.

The second similar transaction occurred on April 5, 2007. While officers of the Carroll County Sheriffs Office were conducting a road checkpoint, they encountered a vehicle driven by Kelvin Hill and occupied by Espinosa as a passenger. A deputy smelled the odor of marijuana coming from inside the vehicle, and Espinosa and Hill appeared to be nervous. The deputy asked them to step out of the vehicle; rather than comply, the vehicle sped away, leading the deputies on a brief chase. During the chase, a deputy observed packages being thrown out of the passenger window. The deputies apprehended Espinosa and Hill shortly thereafter and retrieved the packages, which contained marijuana weighing approximately 35.61 grams and cocaine weighing approximately 58.75 grams.

1. Espinosa contends that the trial court erred in admitting the similar transaction evidence. However, he failed to preserve this issue for appeal.

Although [Espinosa] opposed the admission of the similar transaction evidence during a pretrial hearing, he did not raise any objection at trial when testimony regarding the similar transaction was admitted. [Espinosa,] therefore, waived any objection to this evidence. The rule requiring a trial objection on similar transaction evidence is firm in Georgia jurisprudence, and we are bound to follow it. The matter was not preserved for appeal.

(Citations and punctuation omitted.) Warner v. State, 299 Ga. App. 56, 61-62 (4) (681 SE2d 624) (2009). See also Shropshire v. State, 223 Ga. App. 118, 119 (2) (476 SE2d 859) (1996).

2. Espinosa further argues that his trial counsel provided ineffective assistance by failing to interview and call Hill as a defense witness to rebut the similar transaction evidence.

“In order to succeed on a claim of ineffective assistance of counsel, [Espinosa] must show that counsel’s performance was deficient and that, but for the deficient performance, there is a reasonable probability the outcome of the trial would have been different.” (Citations and punctuation omitted.) Parks v. State, 304 Ga. App. 175, 180 (5) (695 SE2d 704) (2010). See also Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). “There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance[.]” Hall v. State, 243 Ga. App. 804, 805 (534 SE2d 196) (2000). Trial counsel’s actions that are considered to be sound trial strategy afford no basis for a finding of ineffective assistance. Id. Espinosa has failed to meet the requisite burden of establishing his claim in this case.

At the motion for new trial hearing, Hill testified that if he had been called as a trial witness, he would have stated that Espinosa did not have any drugs in the vehicle and did not throw anything out of the window during the police chase. Hill, however, was impeached with testimony that he had previously given at a plea hearing, indicating that he did not see anything being thrown out of the window since he had focused his eyes on the road while driving.

Decided June 14, 2011.

C. Samuel Rael, for appellant.

Peter J. Skandalakis, District Attorney, David P. Taylor, Assistant District Attorney, for appellee.

Trial counsel testified that he and Espinosa had discussed calling defense witnesses, but that he made a strategic decision not to do so in order to minimize the effect of the similar transaction evidence and to avoid reinforcing those allegations for which Espi-nosa was not on trial.

“The decision on which defense witnesses will be called is a matter of trial strategy and tactics and does not usually constitute ineffective assistance of counsel.” (Citation omitted.) Crawford v. State, 302 Ga. App. 782, 784 (2) (691 SE2d 660) (2010). Hill’s purported testimony was questionable, and trial counsel’s tactical decision not to call him as a defense witness was not unreasonable. See id. at 784-785 (2); Hall, supra, 243 Ga. App. at 805-806. “The fact that [Espinosa] and present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that [Espinosa] received representation amounting to ineffective assistance of counsel.” (Citation and punctuation omitted.) Hall, supra, 243 Ga. App. at 806.

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

       Espinosa filed a notice of appeal from the denial of his original motion for new trial on April 10, 2009. He contends that upon later realizing that his original motion was untimely, he filed an out-of-time motion for new trial. The trial court denied the out-of-time motion for new trial on its merits. “Where ... a party obtains permission from the trial court to file an out-of-time motion for new trial and the trial court then denies the motion on its merits, a party is entitled to file a direct appeal in which the appellate court addresses the merits of the appeal from the denial of the out-of-time motion for new trial.” (Citations and punctuation omitted.) Washington v. State, 276 Ga. 655, 656 (1) (581 SE2d 518) (2003). The previously filed notice of appeal shall be deemed as premature, becoming effective upon entry of the order denying the out-of-time motion for new trial. See High v. State, 282 Ga. 244, n. 1 (647 SE2d 270) (2007); Livingston v. State, 221 Ga. App. 563, 563-568 (1) (472 SE2d 317) (1996) (treating a premature notice of appeal as effectively filed upon entry of the order appealed).


author: Miller, Presiding Judge.

text:
    A11A0242.
    BLACK v. THE STATE.
    (711 SE2d 428)
   Miller, Presiding Judge.

Following a jury trial, Eric Black was found guilty of driving under the influence of alcohol (DUI less safe) (OCGA § 40-6-391 (a) (1)), driving with an unlawful alcohol concentration (DUI per se) (OCGA § 40-6-391 (a) (5)), failure to maintain lane (OCGA § 40-6-48 (1)), and disorderly conduct (OCGA § 16-11-39 (a) (3)). The trial court’s sentence merged the DUI per se count into the DUI less safe count. Black appeals, contending that the trial court erred (i) in failing to find a discovery violation when the State did not furnish a copy of the DUI arrest report before trial; (ii) in expressing an opinion regarding the breath test evidence during the charge to the jury; (iii) in finding that the State laid a proper foundation for admission of the Intoxilyzer 5000 test under OCGA § 40-6-392 (a) (1) (A); and (iv) in misstating the allegations of the DUI per se count during its charge to the jury. We discern no error and affirm.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the trial evidence shows that on the evening of August 7, 2009, officers with the City of Riverdale Police Department stopped Black’s vehicle after observing it swerve into an opposite lane of traffic and fail to maintain its lane. When the officers approached Black, they noticed a strong odor of alcohol coming from his breath and person, his eyes were bloodshot and watery, and his speech was extremely slurred. As he exited the vehicle, Black stumbled and was unbalanced. He failed the field sobriety tests administered to him on the scene. As Black performed the tests, he stumbled toward the road. An alco-sensor breath test produced a positive reading for the presence of alcohol. Black was arrested. After being read the implied consent warning, Black consented to the State-administered breath test using the Intoxilyzer 5000 machine, which registered alcohol concentration levels of 0.124 and 0.127 grams. When Black was informed of the test results, he became enraged, cursed at the officers, and called them obscene names.

1. Black contends that he is entitled to a new trial on the DUI less safe charge, arguing that the trial court had made an erroneous finding that the State’s failure to produce a DUI arrest report prior to trial did not amount to a discovery violation under OCGA § 17-16-23 (b) and Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). Notwithstanding his contention, no error has been shown.

When the case was called for trial, Black announced that he was not ready to proceed due to an alleged discovery violation committed by the State. Black asserted that in accordance with his written pretrial discovery requests, the State was required to produce a complete copy of any written scientific reports within ten days of trial. Although the State had previously provided Black with a copy of a narrative police report that purportedly reflected information regarding the field sobriety testing, Black asserted that a supplemental DUI arrest report had not been furnished until the day of trial. Black argued that the DUI arrest report was discoverable as Brady material and as a scientific report to the extent that it contained information regarding the horizontal gaze nystagmus (“HGN”) test. The trial court compared the DUI arrest report to the narrative police report that had previously been produced and concluded that they contained the same information. Based upon its finding, the trial court ruled that there was no discovery violation.

Significantly, the reports at issue have not been included in the appellate record. Consequently, we are unable to review the trial court’s finding.

An appellant has the burden of proving trial court error by the appellate record, and must compile a complete record of what transpired in the trial court. Otherwise, there is not sufficient information for an appellate court’s review and the trial court ruling enumerated as error must be upheld. When a portion of the evidence bearing upon the issues raised by the enumerations of error is not brought up in the appellate record so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result.

(Citation omitted.) McKinney v. State, 293 Ga. App. 419, 421 (2) (667 SE2d 210) (2008). Under these circumstances, we must presume that the evidence before the trial court supported its ruling. Id.

2. Black further contends that the trial court’s charge to the jury erroneously expressed an opinion regarding the evidence by explaining the difference between the alco-sensor field test and the state-administered chemical test. Again, we discern no error.

OCGA § 17-8-57 proscribes that “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” Black contends that the trial court violated this provision by charging the jury as follows:

I charge you that [a]lco-[s]ensor results are not admissib[le] as to the amount of alcohol in a person’s blood. Such results can be presented only as positive or negative for the presence of alcohol. And by [a]lco-[s]ensor[,] I [am] referring to the field hand-held device that an officer would use on the side of the road as compared to the state-administered chemical test which is administered after reading the Implied Consent.

Decided June 14, 2011.

Sumeet P. Shah, for appellant.

Tasha M. Mosley, Solicitor-General, Paula M. Mickens, Assistant Solicitor-General, for appellee.

Contrary to Black’s contention, the trial court’s comments amounted to no more than an explanation that clarified its charge applicable to the alco-sensor field test. The trial court’s explanation was a correct statement of the law pertaining to alco-sensor test results and did not express or intimate an opinion regarding the evidence. See Capps v. State, 273 Ga. App. 696, 697 (1) (615 SE2d 821) (2005); Grimes v. State, 245 Ga. App. 277, 277-278 (1) (537 SE2d 720) (2000).

3. Lastly, Black claims that the trial court erred in finding that the State laid a proper foundation for admission of the Intoxilyzer 5000 test. He also claims that the trial court misstated the allegations of the DUI per se count during its charge to the jury. However, we need not reach these claims of error since they are predicated upon the DUI per se count, which was merged into the DUI less safe conviction. In light of the merger, the DUI per se count is void and any error as to that count was harmless. See Daniel v. State, 298 Ga. App. 245, 248-249 (4) (679 SE2d 811) (2009); Harrelson v. State, 287 Ga. App. 664, 667, n. 4 (653 SE2d 98) (2007) (“As merger renders a conviction void, any error as to that count [is] harmless.”) (citation and punctuation omitted).

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

       OCGA § 17-16-23 (b) pertinently provides:
      In all criminal trials the defendant shall be entitled to have a complete copy of any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant by the prosecution in its case-in-chief or in rebuttal. ... If the scientific report is in the possession of or available to the prosecuting attorney, the prosecuting attorney must comply with this Code section at least ten days prior to the trial of the case.
      Subsection (c) of the statute states that the prosecution’s noncompliance with this provision shall result in the report being excluded from evidence in the prosecution’s case-in-chief or in rebuttal.


author: SMITH, Presiding Judge.

text:
    A11A0261.
    ROBINSON v. THURMOND et al.
    (711 SE2d 430)
   SMITH, Presiding Judge.

Edell Robinson appeals from a superior court order affirming a decision of the Georgia Department of Labor’s Board of Review (the “board”) which denied Robinson unemployment benefits. For the reasons set forth below, we reverse.

The record reveals that Robinson was employed as a substitute teacher with the Savannah River Challenge (“the SRC”) from June 9, 2008 to October 2, 2009, when she was informed that her position would be eliminated due to budget cuts. The October 5 separation notice stated: “Part-time employee - Savannah River is no longer using part-time employees to fill teacher vacancies.” The SRC offered Robinson full-time employment as an instructor on either the second or third shift at the facility, but Robinson refused the offer and filed for unemployment benefits.

On October 27, 2009, a Georgia Department of Labor claims examiner found that Robinson was eligible for benefits beginning on October 4, 2009 because she was unemployed due to a lack of work. The SRC appealed the award of benefits to an administrative hearing officer. The administrative hearing officer affirmed the claim examiner’s determination that Robinson was entitled to benefits, finding that Robinson was not at fault in the separation.

The SRC then appealed the administrative hearing officer’s decision to the board. The board reversed the decision of the administrative hearing officer finding that while Robinson’s “part-time job was no longer available, the evidence shows [Robinson] left available work when the employer changed her position from part-time substitute teacher during normal school hours to working on a second or third shift in another position full-time.” The board concluded that “[Robinson] failed to show this change to be substantial enough to cause the employment available not to be suitable. [Robinson’s] failure to remain with available work brought about her separation as a voluntary quit under disqualifying conditions as provided by OCGA § 34-8-194 (2) (A).” Robinson appealed the board’s decision to the superior court, and the superior court affirmed the board. We granted Robinson’s application for discretionary review.

“Judicial review of an administrative decision requires the court to determine that the findings of fact are supported by ‘any evidence’ and to examine the soundness of the conclusions of law that are based upon the findings of fact.” (Citation omitted.) Pruitt Corp. v. Ga. Dept. of Community Health, 284 Ga. 158, 160 (3) (664 SE2d 223) (2008). “When this Court reviews a superior court’s order in an administrative proceeding, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the administrative agency.” (Citation and punctuation omitted.) Davane v. Thurmond, 300 Ga. App. 474, 475 (685 SE2d 446) (2009).

The SRC argues that Robinson’s refusal to accept the full-time position was a “voluntary quit” pursuant to OCGA §§ 34-8-194 (2) (A) (disqualification from benefits where an individual is discharged or suspended from work for failure to obey orders, rules or instructions), and 34-8-194 (3) (A) which provides that an individual may also be disqualified for benefits:

Decided June 14, 2011.

If, after the claimant has filed an otherwise valid claim for benefits, the claimant has failed without good cause either to apply for available, suitable work when so directed by an employment office or the Commissioner or to accept suitable work when offered to the claimant by any employer.

We disagree.

OCGA § 34-8-195 (a) provides that an unemployed individual is eligible to receive benefits when certain conditions have been met, including the condition that “[t]he individual is able to work, is available for work, is actively seeking work, and is bona fide in the labor market.” OCGA § 34-8-195 (a) (3) (A). The term “bona fide in the labor market”

means that any person claiming benefits under this chapter must be available for full-time employment, as that term is generally understood in the trade or work classification involved, without regard to prior work restrictions, provided that no individual who is otherwise eligible shall be deemed ineligible for benefits solely because the individual seeks, applies for, or accepts only part-time work, instead of full-time work, provided the individual claiming benefits worked part-time during a majority of the weeks of work in the base period and the individual is available for part-time work for at least 20 hours per week.

(Emphasis supplied.) OCGA § 34-8-24. Therefore, under OCGA § 34-8-24, Robinson’s refusal to accept full-time work after having worked only part-time during her employment could not be a basis on which she could be declared ineligible to receive unemployment benefits. The trial court therefore erred in affirming the board’s decision to deny Robinson benefits.

Judgment reversed.

Mikell and Dillard, JJ., concur.

Katherine E. Hudson, Alex M. Brown, Lisa J. Krisher, for appellant.

Thurbert E. Baker, Attorney General, Kimberly B. Lewis, Assistant Attorney General, Ney, Russell, Hoffecker & Erck, Charles E. Hoffecker, for appellees.

       The appellees in this case are the Savannah River Challenge and Michael Thurmond as commissioner of the Georgia Department of Labor.

       The parties agree that there is no transcript of the oral argument made before the superior court.

       There is no dispute that Robinson worked part-time during a majority of her weeks of work in the base period.


text:
    A11A0316.
    JONES v. THE STATE.
    (714 SE2d 590)
   Miller, Presiding Judge.

Defendant Carlos Jones appeals his conviction of armed robbery and possession of a firearm by a convicted felon. He challenges the qualifications of a witness permitted to testify as an expert and the sufficiency of the evidence to support his conviction. Since these contentions lack merit, we affirm.

1. On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and [the appellant] no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations and punctuation omitted.) Ginn v. State, 293 Ga. App. 757, 758 (667 SE2d 712) (2008).

Viewed in the light most favorable to the jury’s verdict, the trial evidence shows that a single employee was operating a convenience store when someone entered the store and held a gun on her. The perpetrator was a black male weighing about 260 pounds and standing over six feet tall, with his face obscured by a nylon stocking over his head. In spite of the stocking, the store clerk was able to see that the perpetrator had a mustache, bushy eyebrows, and braids in his hair. The robbery lasted about ten or fifteen minutes during which time the perpetrator was speaking as he directed the store clerk to walk over to the cash register, to place the money in a plastic bag, and warned her not to do anything stupid. The store clerk told police that the perpetrator had a deep, scratchy voice.

Three days later, the store clerk was back at work, after taking a couple of days off. The perpetrator returned to the store. On this second occasion, the perpetrator entered the store as a customer and said that he wanted a pack of cigarettes and some gas. The store clerk testified that even though he was tall, of the same weight, and had the same facial hair, she initially recognized the perpetrator by his voice. Later, Jones was identified as the perpetrator in a picture lineup by the store clerk. The State also presented the testimony of an expert polygraph examiner, that Jones showed deception to questions concerning the armed robbery.

Jones argues that the State’s evidence was insufficient to overcome his alibi defense as provided by his testimony and the testimony of another witness. He also notes that the store clerk’s testimony concerning the appearance of the armed robber did not include any mention of his gold teeth or a large scar.

The jury’s verdict was authorized by the evidence. The store clerk identified Jones by his voice and his physical build, and there was some corroboration in the evidence of deception during the polygraph examination. The jury was authorized to accept the identification of Jones as the armed robber. Even insofar as that identification was based on recognizing Jones’s voice, the store clerk explained the basis of that opinion so that the probative value of the evidence was an issue for the jury. McKay v. State, 251 Ga. App. 115, 116-117 (553 SE2d 672) (2001); Stevanus v. State, 185 Ga. App. 7, 10 (1) (363 SE2d 322) (1987). The jury was authorized to find Jones guilty of the offenses of which he was charged.

2. “[U]pon an express stipulation of the parties that they shall be admissible, the results of a lie detector test shall be admissible as evidence for the jury to attach to them whatever probative value they may find them to have.” State v. Chambers, 240 Ga. 76, 76-77 (239 SE2d 324) (1977). Such a stipulation was signed by the parties and entered in the trial court record.

A polygraph test of Jones was administered by Montgerard, a lieutenant with the Dougherty County Sheriffs Office. At trial, when the State sought to qualify Montgerard as an expert to give testimony concerning the polygraph test, Jones objected to Montgerard’s qualifications on the grounds that he had not been certified, had never been tendered as an expert, and had never testified in a similar state court proceeding. The trial court overruled Jones’s objection and permitted Montgerard to testify as an expert regarding the polygraph examination.

While Jones’s arguments are directed solely to Montgerard’s qualifications, we note that via the stipulation, Jones has voluntarily consented to admission of the polygraph test results. While one part of the test results are the graphs made by the machine, “[t]he other part is the opinion of the examiner as to what those responses indicate.” Chambers, supra, 240 Ga. at 78. Thus, Jones has agreed to admission of Montgerard’s opinion testimony concerning the polygraph examination, and failed to provide any reason he should not be bound by his agreement. See Hendrick v. State, 257 Ga. 17, 18 (3) (354 SE2d 433) (1987) (admitting stipulated polygraph test since contentions regarding the objectivity of the examiner go to the weight of the testimony); Harris v. State, 308 Ga. App. 523, 526 (2) (707 SE2d 908) (2011) (finding it contrary to the spirit of a stipulation agreement to compel the State to provide funds to retain a polygraph expert to testify regarding the inherent unreliability of polygraphs in general). Under these circumstances, Jones has waived the issues raised in this enumeration of error.

Furthermore, Montgerard testified that he had been a polygraph examiner for six years. He was certified to administer polygraphs after completing a ten-week class conducted in 2001 by the American International Polygraph Institute at the Georgia Public Safety Training Center in Forsyth, Georgia. Following the training, he was also monitored for a period of six months by a licensed polygraph examiner. Additionally, he completes more than 20 hours per year of continuing training in order to retain his certification. As of the day he testified in the trial of this case, Montgerard had conducted 296 polygraphs, most of which were for the purpose of employment screening for the Sheriffs Office, and approximately 40 of which were conducted with respect to criminal matters.

Nonetheless, Jones notes that Montgerard lacks experience testifying as an expert witness, having never been qualified in any court as an expert and having testified as to polygraph matters in a criminal case only once in federal court. This lack of court experience may reasonably be implied to be a function of the area of expertise involved since testimony concerning polygraph examinations may only be introduced into evidence under limited circumstances.

“Acceptance or rejection of the qualifications of a proffered expert witness is within the sound discretion of the trial judge and will not be disturbed on appeal absent manifest abuse.” (Citations and punctuation omitted.) Turner v. State, 258 Ga. 97, 100 (3) (365 SE2d 822) (1988). Here, there is no abuse of that discretion since the trial court explicitly relies upon Montgerard’s training and experience, which included completion of a State administered training program, certification maintained via additional annual training, and the administration of 296 polygraph examinations. The trial court did not err by overruling Jones’s objection to the qualifications of Montgerard, or by allowing him to testify as an expert concerning the polygraph test he administered on Jones. See id.; see also Hubert v. State, 297 Ga. App. 71, 74 (4) (676 SE2d 436) (2009).

Decided June 14, 2011.

Kevin Armstrong, for appellant.

Gregory W. Edwards, District Attorney, Nicholas E. Deeb, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.


author: MlKELL, Judge.

text:
    A11A0398.
    A11A0476.
    SMITH v. THE STATE. JACKSON v. THE STATE.
    (714 SE2d 593)
   MlKELL, Judge.

Jerry Michael Smith, convicted by a jury of possession of cocaine with the intent to distribute and possession of marijuana with intent to distribute, appeals from the trial court’s denial of his motion for new trial in Case No. A11A0398, challenging the sufficiency of the evidence against him. Gloria Jean Jackson, convicted of the same offenses, appeals from the trial court’s denial of her motion for new trial in Case No. A11A0476, contending that her trial counsel rendered ineffective assistance by not objecting to the motion of the state to join the two cases for trial. The two appeals have been consolidated for our review.

Case No. A11A0398

1. We first consider Smith’s challenge to the legal sufficiency of the evidence.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

This test applies “when the sufficiency of the evidence is challenged, whether the challenge arises from the [denial] of a motion for directed verdict or the [denial] of a motion for new trial.”

Viewed in this light, the evidence was that, on October 18, 2007, a team of ten officers from the Newton County Sheriffs Department Special Investigations Unit executed a search warrant at the residence located at 110 Valley Street in Newborn, which is in Newton County. Officer Shane Brown found Smith in the yard with three other men and secured them. According to Officer Brown, both Smith and Jackson lived at the house. Officer Brown searched Smith and found $356 in cash, a cell phone, a billfold, a key ring, and two boxes of cigars.

Special Agent Charles Cook entered the house and found a Tupperware container in a cabinet in the kitchen. The container contained a plastic bag which held a substantial amount of crack cocaine, a pill bottle with the label removed which contained residue consistent with crack cocaine, a digital scale, a razor blade, and a couple of bags of marijuana. The digital scale had residue consistent with crack cocaine on it and some score marks indicative of cutting cocaine.

As Special Agent Tony Howard entered the house and headed toward the master bedroom, he saw Jackson coming from that bedroom. When Jackson saw him, she turned around and went back into the bedroom. After securing Jackson, Special Agent Howard searched the bedroom, finding another digital scale, a shoe box containing a black plastic grocery bag, a brown paper sack containing Tupperware dishes, and a third digital scale. The paper sack and some of the Tupperware dishes contained over 1,500 small baggies, which, in Special Agent Howard’s experience, were used to package narcotics. One of the scales also had white residue on top of it. Special Agent Howard also found a marijuana leaf inside a man’s Nike shoe in the bedroom. The bedroom contained both men’s and women’s shoes and clothing. Special Agent Howard also found a pocketbook by the bed which contained a change purse in which two baggies of marijuana were found. Deputy James Fountain assisted in searching the master bedroom and found a .32 caliber handgun in the chest of drawers.

Police Officer Chris Smith searched the washroom located adjacent to an open carport attached to the house. There, he found a cooler containing a plastic bag with a large amount of suspected marijuana in it. Officer Smith also found a police scanner on the sofa in the den of the house. According to Officer Smith, in his experience, police scanners are used by those distributing narcotics to monitor police activity. The material in the cooler tested positive for marijuana and weighed 109.7 grams.

Lieutenant Phillip Bradford, the commander of the Special Investigations Unit, interviewed both Smith and Jackson after advising them of their Miranda rights. Jackson said that the house was hers and that Smith was her boyfriend who lived with her, although she later said he stayed there from time to time. Jackson denied knowledge of any of the marijuana and cocaine, including the baggies of marijuana found in her pocketbook. Smith told Lieutenant Bradford that all of the narcotics found in the house belonged to him. Smith did not, however, provide details of what type of narcotics might be present. He also said the gun belonged to Jackson, but he did not believe it was working.

Lieutenant Bradford was accepted by the trial court as an expert in the field of street level narcotics. He opined, based on the large number of packaging supplies found, the large amounts of marijuana and crack cocaine found, as well as the handgun and police scanner found, that Smith and Jackson possessed the crack cocaine and marijuana for the purpose of distributing them.

Evidence of Smith’s 1993 arrest and conviction for possession of cocaine with intent to distribute was introduced as a similar transaction. Smith was observed from a distance by law enforcement officers as he dropped an object on the ground.

Officers returned to the area and found a baggie containing a significant amount of suspected crack cocaine. A certified copy of this conviction was admitted into evidence.

Smith’s challenge to the sufficiency of the evidence consists of a re-argument of what the evidence below proved. “Resolving eviden-tiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.” As long as there is some evidence, even though contradicted, to support each essential element of the state’s case, this Court will uphold the jury’s verdict. The evidence was sufficient for a rational trier of fact to find Smith guilty beyond a reasonable doubt of possession with intent to distribute cocaine and marijuana.

Case No. A11A0476

2. Jackson’s sole enumeration of error is that the trial court erred in denying her motion for new trial based on ineffective assistance of counsel even though trial counsel failed to object to the joining of the defendants for trial.

In order to establish ineffectiveness of trial counsel, appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, we give deference to the trial court’s factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court’s legal conclusions de novo.

Jackson’s trial attorney had 11 years of criminal law experience. He was appointed prior to the motion/status hearing and represented Jackson through two criminal trials, the first of which ended in a hung jury. The attorney spoke with Jackson at length at least three or four times prior to the first jury trial. Following the declaration of a mistrial in the first trial, trial counsel spoke with many of the jurors who served during that trial and determined that the vote was eleven to one to convict Jackson. Trial counsel consulted with Jackson again in preparation for the second trial and advised her to accept the state’s plea offer, which she refused.

Trial counsel testified that he had found no legal basis upon which to object to the joinder of Jackson’s case with that of Smith. Smith’s statements to officers during the search did not inculpate Jackson and, therefore, provided no basis for objection under Bruton v. United States.

Further, trial counsel testified that he did not object to the joinder or move later for severance as a matter of trial strategy. Trial counsel believed that having Jackson tried with Smith would enhance his strategy of placing the blame on Smith. Smith had made a statement to police that all of the narcotics found in the house belonged to him; he had previously been convicted of possession of cocaine with intent to distribute; and he had several other drug convictions.

Decided June 14, 2011.

Teresa L. Smith, for appellant (case no. A11A0398).

Steven B. Mizerak, for appellant (case no. A11A0476).

W. Kendall Wynne, Jr., District Attorney, Layla H. Zon, Clint C. Malcolm, Assistant District Attorneys, for appellee.

“As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” We agree with the trial court that trial counsel’s strategies and tactics do not constitute deficient performance. The denial of Jackson’s motion for new trial on this ground was not error.

Judgments affirmed.

Smith, P. J., and Dillard, J., concur.

       Following the trial, Smith pled guilty to possession of a firearm by a convicted felon, which had been bifurcated for trial. This plea is not at issue in this appeal.

       (Citations and footnotes omitted.) Sexton v. State, 268 Ga. App. 736 (1) (603 SE2d 66) (2004).

       (Citation omitted.) Millirons v. State, 268 Ga. App. 644, 645 (1) (602 SE2d 346) (2004).

       The white material in the plastic bag in the Tupperware bowl tested positive for cocaine and weighed 10.25 grams.

       (Citation omitted.) Odett v. State, 273 Ga. 353, 353-354 (1) (541 SE2d 29) (2001).

        Parnell v. State, 260 Ga. App. 213, 218 (6) (581 SE2d 263) (2003).

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

       (Citations and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

       391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). Compare Cabrera v. State, 303 Ga. App. 646, 652 (2) (694 SE2d 720) (2010).

       (Citation and punctuation omitted.) Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001). Accord Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Wright v. State, 274 Ga. 730, 732 (2) (b) (559 SE2d 437) (2002) (matters of trial tactics and strategy do not amount to ineffective assistance).


text:
    A11A0707.
    GREENWOOD v. THE STATE.
    (714 SE2d 602)
   MlKELL, Judge.

Following a jury trial, Michael E Greenwood was found guilty of theft by taking a motor vehicle, theft by receiving stolen property, entering an automobile with intent to commit theft, and criminal damage to property in the second degree (Counts 1 through 4), all felonies. He was also found guilty of four misdemeanors: obstruction of an officer, reckless driving, improper lane change/failure to use turn signal, and fleeing or attempting to elude a police officer (Counts 5 through 8). He was sentenced under OCGA § 17-10-7 (c), concerning repeat offenders, to ten years to serve on each of Counts 1 and 2, five years to serve on each of Counts 3 and 4, and twelve months to serve on each of the four misdemeanor counts, with each sentence to be served consecutively to the sentence on all preceding counts. Greenwood appeals from the denial of his amended motion for new trial, arguing that he received ineffective assistance of counsel, that the trial court erred in failing to declare a mistrial sua sponte, that the trial court erred in admitting testimony concerning a special task force, and that an eyewitness was improperly allowed to bolster his own testimony. We discern no error. Accordingly, we affirm.

Viewing the evidence in the light most favorable to the jury’s verdict, the record reflects that at approximately 2:15 a.m. on November 6, 2005, residents of the Lea Glen neighborhood in Houston County called 911 after they observed Greenwood entering their car and then crossing their yard and driving slowly off in either a van or an SUV In response to the 911 call, Deputy James Spivey of the Houston County Sheriffs Office drove to the neighborhood and parked. He saw a gray Yukon slowly heading toward his vehicle, and he made eye contact with the driver, whom he later identified as Greenwood. Spivey activated his blue lights and attempted to stop Greenwood’s vehicle, but Greenwood “floored it” and passed another vehicle at high speed while driving in a reckless manner. With Spivey in pursuit, Greenwood then crossed two lanes, drove through a ditch, and crashed into a fence in Jason Little’s yard. The fence collapsed onto the Yukon, which belonged to Wendy De Mers and had been stolen from her driveway earlier that night. Greenwood then abandoned the Yukon and fled on foot, managing to avoid immediate capture. That same night, in the Lea Glen neighborhood, police found an abandoned vehicle, also a Yukon, which had earlier been reported stolen from Butts County. Spivey identified Greenwood from a photographic lineup the next day, and Greenwood was later arrested at the home of his girlfriend, Dell McKellar. Upon a search of McKellar’s residence and Greenwood’s vehicle, police found several stolen items.

1. Greenwood contends in his first enumeration of error that he received ineffective assistance of counsel. In evaluating a claim of ineffective assistance of counsel, we apply the two-prong test set forth in Strickland v. Washington. Greenwood “must show that counsel’s performance was deficient and that, but for that deficient performance, there is a reasonable probability that the outcome of his trial would have been different.” In evaluating the first prong of this test, “[a] strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.” On appellate review of the trial court’s ruling, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

(a) Greenwood contends that his trial counsel rendered ineffective assistance in failing to object and move for a mistrial upon the state’s elicitation of testimony which allegedly brought his character into issue. On the state’s direct examination of McKellar, the prosecuting attorney asked the witness if she had visited Greenwood in jail, and later asked if she had visited him ten times. To both questions, the witness answered in the affirmative. At a side bar, the trial court admonished the prosecuting attorney, and Greenwood’s counsel stated that she had not objected because she did not want to draw attention to the testimony. “A decision on whether to object when a defendant’s character is placed in issue is a matter of trial tactics and does not equate with ineffective assistance of counsel.” Further, “[w]hen considering defense counsel’s performance, there is a critical distinction between inadequate preparation and unwise tactical and strategic decisions.” The record in this case shows that trial counsel was thoroughly prepared. She presented a number of pre-trial motions; she was able to have three of the original eleven counts of the indictment severed; and she made appropriate objections during the course of the trial. In matters of trial strategy and tactics, “effectiveness is not judged by hindsight or result.” Thus, Greenwood has failed to rebut the presumption that counsel’s conduct was within the broad range of professional conduct.

(b) Greenwood contends that counsel failed to object to testimony regarding the establishment of a police task force to address a rash of car break-ins and thefts in the area. This contention fails. The record shows that counsel did object to this testimony by the investigating officer, and that the objection was sustained. Counsel did not request a curative instruction or move for a mistrial at that time, nor did counsel object to later testimony which explained the series of car thefts leading to the theft at issue here. Although at the hearing on the motion for new trial, Greenwood’s counsel could not recall her specific reasons for not making further objections, Greenwood has nonetheless failed to show that counsel’s decision was not a reasonable trial strategy or that there is a reasonable probability that such a request would have affected the outcome of the trial.

(c) Greenwood contends that trial counsel was ineffective in failing to request a limiting instruction after each similar transaction witness testified. This contention is without merit. The record shows that the trial court gave such a limiting instruction not only before the first similar transaction witness took the stand, but also during the final charge to the jury. Thus, trial counsel was not ineffective in this regard.

2. Greenwood argues that the trial court should have declared a mistrial sua sponte when the state questioned McKellar as to whether she had visited Greenwood while he was in jail. Contrary to Greenwood’s contention on appeal, his trial counsel moved for a mistrial on this ground during the trial and later renewed the motion at the close of the state’s evidence. The court considered the motion and denied it, based on the fact that evidence of several similar transactions was presented to the jury, and that for that reason the jury was aware that Greenwood had been in jail at some time in the past. “A motion for mistrial is within the discretion of the trial court. This [C]ourt will not interfere with the trial court’s exercise of that discretion unless it is clear that a mistrial is essential to the preservation of the right to a fair trial.” We find no abuse of discretion here. Further, given the overwhelming nature of the evidence against Greenwood, it is highly probable that the error did not contribute to the verdict. The error, if any, was therefore harmless.

3. Greenwood contends that the trial court erred in admitting evidence of the special task force formed by the police to address the many car break-ins which had occurred in the area. This enumeration is without merit. The record shows that when the police investigator began to give a narrative explanation of the task force, Greenwood’s counsel objected on grounds of relevancy, and the objection was sustained. The prosecutor then elicited testimony concerning a series of three car thefts, each theft followed by abandonment of the stolen vehicle in another neighborhood and a theft of another vehicle nearby, eventually leading to the abandoned Yukon found in the Lea Glen neighborhood and the stolen Yukon which Greenwood crashed into a fence. “One of the exceptions to the rule that on prosecution for a particular crime evidence which tends to show that the defendant committed another crime wholly independent from that for which he is on trial is irrelevant and inadmissible, is where the other crime is a part of the res gestae.” In reviewing a trial court’s ruling on the admissibility of evidence, “a trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered by the jury will not be disturbed on appeal unless that determination is clearly erroneous.” In the case at bar, the trial court did not err in admitting evidence concerning crimes preceding and connected to those of which Greenwood stands convicted.

Decided June 14, 2011.

William M. Peterson, for appellant.

T. Rabb Wilkerson III, District Attorney, Venita S. McCoy, Assistant District Attorney, for appellee.

4. Greenwood contends that the trial court erred in allowing Spivey, the eyewitness, to testify that he was “certain . . . without a doubt” that the person he saw driving the stolen Yukon was Greenwood. This contention is without merit. “Georgia law does not prohibit an identification witness from testifying about his or her level of certainty or restrict the state from inquiring about the same.” Identification was an issue in this case, and “as long as identification remains an issue at trial, . . . the certainty of an eyewitness’ identification goes to such issue and may be explored on both direct and cross-examinations.”

Judgment affirmed.

Smith, P J., and Dillard, J., concur.

       The court entered a nolle prosequi order on Count 9 (failure to stop at scene of an accident) and Counts 10 and 11 (entering an automobile with intent to commit theft).

        Al-Amin v. State, 278 Ga. 74 (1) (597 SE2d 332) (2004).

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

       (Footnote omitted.) Jackson v. State, 282 Ga. 494, 497 (2) (651 SE2d 702) (2007).

       (Citation omitted.) Browning v. State, 283 Ga. 528, 529 (2) (661 SE2d 552) (2008).

       (Citation and punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

       (Citation omitted.) Beattie v. State, 240 Ga. App. 327, 329 (2) (c) (523 SE2d 389) (1999). Accord McKenzie v. State, 284 Ga. 342, 346-347 (4) (a) (667 SE2d 43) (2008) (assistance not ineffective where trial counsel did not object to testimony in order to avoid bringing more attention to it).

       (Citation omitted.) Roebuck v. State, 277 Ga. 200, 207 (10) (586 SE2d 651) (2003).

       (Citation and punctuation omitted.) Id.

       See White v. State, 308 Ga. App. 38, 44 (4) (706 SE2d 570) (2011). See also Martin v. State, 300 Ga. App. 419, 420 (2) (685 SE2d 399) (2009).

       See Smith v. State, 270 Ga. 68, 70 (3) (508 SE2d 145) (1998) (counsel requested limiting instruction as to similar transaction testimony as part of general charge to jury; not ineffective assistance in failing to request such a charge contemporaneously with testimony); Copeland v. State, 276 Ga. App. 834, 838 (2) (b) (625 SE2d 100) (2005) (no prejudice shown where counsel failed to request contemporaneous limiting instruction).

       (Citation and punctuation omitted.) Bradford v. State, 221 Ga. App. 232, 236 (4) (471 SE2d 248) (1996).

       See Dowdy v. State, 209 Ga. App. 95, 96 (1) (432 SE2d 827) (1993).

       (Citations and punctuation omitted.) Sypho v. State, 175 Ga. App. 833, 835 (3) (334 SE2d 878) (1985).

       (Citation and punctuation omitted.) Id. Accord Toney v. State, 304 Ga. App. 25, 27 (1) (695 SE2d 355) (2010).

       Id. Accord Cantrell v. State, 230 Ga. App. 693, 696 (2) (b) (498 SE2d 90) (1998).

       (Footnote omitted.) Allen v. State, 298 Ga. App. 807, 809 (2) (681 SE2d 243) (2009). Accord Evans v. State, 261 Ga. App. 22, 23-24 (2) (581 SE2d 676) (2003).

       (Footnote omitted.) Evans, supra at 24 (2).


author: Dillard, Judge.

text:
    A11A0087.
    BURNSIDE et al. v. GEICO GENERAL INSURANCE COMPANY.
    (714 SE2d 606)
   Dillard, Judge.

Robert W Burnside and Marianne E. Burnside appeal the trial court’s grant of summary judgment to GEICO General Insurance Company on the Burnsides’ declaratory-judgment action, in which the Burnsides claim to have never received notice from GEICO regarding the cancellation of an automobile insurance policy. The Burnsides now argue that the trial court erred by finding that GEICO followed the statutory requirements of OCGA §§ 33-24-44 and 33-24-45 (c) for cancelling their insurance policy. Finding no error, we affirm the grant of summary judgment in favor of GEICO.

At the outset, we note that “[o]n appeal from a grant of a motion for summary judgment, we review the evidence de novo in the light most favorable to the nonmovant to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law.” As the moving party, GEICO may do so by “showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiffs case.”

So viewed, the récord shows that the Burnsides renewed their insurance policy with GEICO on August 24, 2006, and a renewal bill was sent that same day with a due date of September 15, 2006. But this due date came and went without full payment by the Burnsides. And as a result, GEICO mailed a notice of cancellation to the Burnsides on October 16, 2006, with an effective date of October 27, 2006, at 12:01 a.m.

Unfortunately, on November 7, 2006, Mrs. Burnside’s vehicle was struck by a deer, and the Burnsides claim that they learned for the first time that their policy had been cancelled when Mr. Burnside called GEICO a few hours later to report the accident. That same night, the Burnsides made a payment to GEICO that resulted in the reinstatement of their policy, but pursuant to the policy terms, this reinstatement was not retroactive and did not cover Mrs. Burnside’s accident.

After GEICO refused to cover the November 7, 2006 accident, the Burnsides sought declaratory judgment on the issue of whether GEICO effectively cancelled their policy by following the statutory requirements of OCGA §§ 33-24-44 and 33-24-45 (c). GEICO thereafter sought summary judgment, which the trial court granted after determining that GEICO presented evidence demonstrating that it followed the statutorily required procedure to cancel a policy for nonpayment. This appeal by the Burnsides follows, in which they argue that the trial court erred by finding that (1) GEICO mailed them a notice of cancellation, (2) GEICO obtained the statutorily required receipt of mailing, (3) the policy was cancelled on October 27, 2006, for nonpayment, and (4) the Burnsides made payment on November 7, 2006, to reinstate the policy. We will address each of these arguments in turn.

1. The Burnsides first argue that the trial court erred in finding that GEICO mailed a notice of cancellation when the Burnsides presented circumstantial evidence that they never received same. Specifically, the Burnsides argue that GEICO failed to show what, if anything, was actually mailed to them on October 16, 2006. We disagree.

In conjunction with its motion for summary judgment, GEICO presented two supporting affidavits: one from an underwriter who was personally familiar with the Burnsides’ account, the business records generated in connection with the Burnsides’ policy, and the method and manner of keeping same; and another from the output manager for the company’s national print mail center, who explained the company’s method of sending cancellation notices.

The underwriter averred that the Burnsides failed to make proper payment on their renewed policy. Accordingly, a notice of cancellation was mailed to the Burnsides on October 16, 2006, explaining that there would be no coverage following the effective date of cancellation, i.e., October 27, 2006. Thereafter, the notice was sent through the company’s bulk mail system, and the company obtained a mailing receipt, which was stamped by the United States Postal Service (“USPS”) on October 16, 2006. The underwriter further averred that the notice of cancellation was not returned, no payment was received, and the policy was cancelled on October 27, 2006. Finally, the underwriter noted that the Burnsides made a payment of $970.60 at 8:51 p.m. on November 7, 2006, and that their policy was reinstated on November 8, 2006.

Additionally, the underwriter’s affidavit included as attachments copies of documents prepared and maintained as part of GEICO’s routine business practices, including the notice of cancellation, the mailing receipt stamped by the USPS, a “new business declaration” reflecting the reinstatement of the Burnsides’ policy, and a statement of the Burnsides’ account. The “Notice of Cancellation for Nonpayment of Premium” noted that the Burnsides’ policy would be can-celled as of 12:01 a.m. on October 27, 2006, and it was dated October 16, 2006. It further noted that the Burnsides owed $168 and explained that the last full day of coverage would be the day before cancellation. The mailing receipt was effectively a list of the names, addresses, and policy numbers of the insured individuals who were the subject of the bulk-mail batch, including the Burnsides. This receipt was stamped by the USPS on October 16, 2006, and also contained a separate stamp reflecting that the policy-holders listed were being sent “cancellation notices, notices of non-renewal, and/or surcharge notices.” And as for the “new business declaration,” it was issued on November 8, 2006, and noted that it was a reinstatement of the earlier-terminated policy and that a lapse in coverage remained between the times of cancellation and reinstatement. Finally, the statement of the Burnsides’ account reflected activity and action on the Burnsides’ policy, including all of the above-mentioned actions and applicable dates.

Suffice it to say, GEICO presented sufficient evidence to establish that the notice of cancellation was mailed to the Burnsides. Indeed, the Burnsides’ claim that they did not actually receive the notice of cancellation is irrelevant because “proof of actual delivery is not necessary” and “the notice of delivery was legally effected by the act of mailing and securing the Post Office receipt.” Thus, because the mailing receipt stamped by the USPS and other evidence presented by GEICO showed without contradiction that the requisites of OCGA §§ 33-24-44 and 33-24-45 (c) were satisfied, “whether notice of cancellation had in fact been received by the insured is legally irrelevant and is not an issue which would preclude summary judgment.”

2. The Burnsides next argue that the mailing receipt was defective and therefore insufficient to meet the statutory requirement for proof of mailing because (1) the receipt is ambiguous, (2) the receipt does not specify whether the mail was sent first class as required, and (3) the form was not properly filled out. We disagree.

To begin with, the Burnsides argue that the mailing receipt’s notation that the listed policy-holders were mailed “cancellation notices, notices of non-renewal, and/or surcharge notices” renders it insufficient to establish that the Burnsides were actually mailed a cancellation notice. However, as detailed in Division 1, GEICO produced evidence establishing that on the same date the USPS stamped the mailing receipt — October 16, 2006 — the Burnsides were sent a cancellation notice and not a notice of nonrenewal or a surcharge notice. Furthermore, GEICO submitted an affidavit from the output manager for its national print mail center, who explained that cancellation notices are submitted to the center electronically, printed, and then inserted into envelopes either manually or by machine, depending on the batch size, before being matched to the appropriate mailing receipt. This evidence was sufficient to establish that the October 16, 2006 mailing contained a notice of cancellation sent to the Burnsides.

Additionally, as to the matter of postage, the output manager averred that all cancellation notice envelopes are given a sufficient postage amount and that all mail referenced in the mailing receipt stamped October 16, 2006 (which included the Burnsides), “was processed by GEICO and mailed pursuant to [the company’s] policies : regarding the handling of mail.” Accordingly, this was sufficient I evidence to establish that the Burnsides’ notice of cancellation was given the proper amount of postage.

Finally, the Burnsides’ argument that the mailing receipt is insufficient because there is “no stamp affixed at the top as required on the approved form and there is no name or signature of the receiving employee as required on the approved form” is likewise without merit. Indeed, “the absence of the signature of the postal clerk on the receipt is not fatal, since the document has the official U. S. postal service stamp showing receipt by the U. S. postal service.”

3. The Burnsides’ third contention is that the trial court erred in finding that the cancellation of their policy took place on October 27, 2006, because there is a question of fact as to when the cancellation became effective. We disagree.

As discussed in Division 1, the cancellation notice clearly provided that the Burnsides’ policy would be cancelled effective October 27, 2006, at 12:01 a.m. and that there would be no coverage on the policy after this date. The Burnsides attempt to create an issue of fact here by pointing to a statement they received after their policy was reinstated, which notes that as of November 7, 2006 — the date of Mrs. Burnside’s accident — the policy was cancelled. On the same line, this statement also notes an “effective” date of October 15, 2006. The Burnsides argue that this creates an issue of fact as to when their policy was actually cancelled; however, they simply misconstrue the use of the term “effective” on this statement. The policy that they renewed on August 24, 2006, was to be effective beginning October 15, 2006, until April 15, 2007. Accordingly, the Burnsides have presented nothing to contradict GEICO’s evidence that the policy was cancelled effective October 27, 2006, at 12:01 a.m.

4. The Burnsides’ final contention is that the trial court erred by finding that they made payment to GEICO on November 7, 2006, for the purpose of reinstating their policy. The Burnsides claim that this statement by the trial court “assumes” their intent and that they instead made payment “for the entire year while [GEICO] investigated the claim of the accident.” But whether or not it was the Burnsides’ intent, reinstatement of the policy was the effect of their November 7, 2006 payment.

Decided June 15, 2011.

Marianne E. Burnside, for appellants.

Cruser & Mitchell, Joseph R. Cruser, Ñola D. Jackson, for appellee.

As we noted in Division 1, GEICO presented sufficient evidence that the policy was cancelled, and the October 16, 2006 notice of cancellation clearly provided that coverage would discontinue as of October 27, 2006. And while the Burnsides made payment on November 7, 2006 (after sustaining automobile damage and after allegedly learning for the first time that their coverage had been cancelled), GEICO’s receipt of this payment resulted in the reinstatement of the policy the following day. Thus, the Burnsides’ intent in making payment after the fact is wholly irrelevant to whether summary judgment was appropriate on the issue of whether their policy was cancelled at the time of the accident.

Accordingly, for all of the foregoing reasons, we affirm the trial court’s grant of summary judgment.

Judgment affirmed.

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

       To cancel a policy by mail, this Code section requires, inter alia, that the insurance company obtain a post office certified mailing receipt, and that the notice be sent by first-class mail at least ten days prior to cancellation. See OCGA § 33-24-44; see also Stapleton v. Colonial Ins. Co. of Cal., 209 Ga. App. 674, 674 (2) (434 SE2d 116) (1993).

       This subsection provides the reasons for which an insurance policy may be cancelled by mail, including the failure to make payment. See OCGA § 33-24-45 (c).

        Zilka v. State Farm Mut. Auto. Ins. Co., 291 Ga. App. 665, 665 (662 SE2d 777) (2008) (citation omitted); see also Atlanta Cas. Co. v. Boatwright, 244 Ga. App. 36, 37 (534 SE2d 516) (2000).

        Boatwright, 244 Ga. App. at 37.

        See Int’l Serv. Ins. Co. v. Consol. Underwriters, 125 Ga. App. 786, 786 (1) (189 SE2d 123) (1972) (affirming trial court’s finding, based solely on business records, that insurance company effectively cancelled policy); see also Auto-Owners Ins. Co. v. Alexander, 293 Ga. App. 459, 460 (667 SE2d 628) (2008) (“A cancellation notice .. . becomes valid only upon deposit in the U. S. mails with the issuance of an appropriate receipt.” (citation and punctuation omitted)); Smith v. Allstate Ins. Co., 573 FSupp. 707, 709 (N.D. Ga. 1983) (affirming finding that policy was cancelled when company produced receipt of mailing notice of cancellation). Compare Boatwright, 244 Ga. App. at 38 (1) (reversing grant of summary judgment for insured but noting that insurance company presented conflicting evidence as to whether insured owed money at time cancellation notice mailed); Allstate Ins. Co. v. Ackley, 227 Ga. App. 104, 106 (2) (488 SE2d 85) (1997) (holding that because there was “no evidence of a . . . cancellation notice, a post office receipt, or mailed envelope containing the statutory cancellation notice!,]” and no testimony that notice was mailed, policy coverage was not cancelled). But cf. State Farm Mut. Auto. Ins. Co. v. Drury, 222 Ga. App. 196, 197 (1) (474 SE2d 64) (1996) (physical precedent only) (“[T]o create a presumption that the insured received the premium due notice, the law requires proof that the notice was placed in an envelope properly addressed to the insured’s last known address, with correct postage affixed, and duly mailed in the United States Post Office. State Farm offered no evidence that the .. . notice was in fact so mailed, and thus it was not entitled to the benefit of the favorable presumption.” (citations omitted)).

        Harris v. U.S. Fid. & Guar. Co., 134 Ga. App. 739, 743 (3) (216 SE2d 127) (1975) (holding that “[s]ince the statute in effect says that mailing is delivery of the notice to the insured, it has the same effect as actual delivery to the insured,” and “such proof of mailing by the directly identified Post Office receipt is proof of delivery . .. and proof of the subsequent failure of the Post Office Department to deliver the mails is not proof of nondelivery of the notice”); see also Smith, 573 FSupp. at 709 (“Plaintiffs claim that he did not receive the notice is irrelevant where there is no evidence to contradict the fact that the [statutory] requirements have been satisfied.”). Compare Ga. Farm Bureau Mut. Ins. Co. v. Gordon, 126 Ga. App. 215, 216 (1) (190 SE2d 447) (1972) (holding that although insurance company mailed notice of cancellation, no cancellation was effected when company failed to obtain mailing receipt).

        Hill v. Allstate Ins. Co., 151 Ga. App. 542, 543 (2) (260 SE2d 370) (1979); see also Cont’l Ins. Co. v. State Farm Mut. Ins. Co., 212 Ga. App. 839, 843 (2) (443 SE2d 509) (1994) (holding that “[wjhether or not [the insured] actually received the cancellation notice is legally irrelevant” because “[t]he statute only requires proof of mailing, not receipt by the insured of the notice of cancellation.” (citations and punctuation omitted)); State Farm Mut. Auto. Ins. Co. v. Harris, 177 Ga. App. 826, 828 (341 SE2d 472) (1986) (same). But see Bituminous Cas. Co. v. Renfroe, 130 Ga. App. 621, 624 (1) (204 SE2d 317) (1974) (physical precedent only) (holding that insured rebutted presumption of receipt); New Amsterdam Cas. Co. v. Russell, 102 Ga. App. 597, 600-01 (2) (117 SE2d 239) (1960) (holding that there was sufficient evidence of nonreceipt for jury consideration when insured’s name in cancellation notice contained typographical error); Powell v. Lititz Mut. Ins. Co., 419 F2d 62, 66 (5th Cir. 1969) (construing Georgia law to hold that mailing notice is sufficient minimum requirement only when policy so provides). See generally Harris, 134 Ga. App. at 744-47 (3) (distinguishing cases that have held that an insured’s claim of nonreceipt creates a jury question).

        Compare Allstate Ins. Co. v. Cody, 123 Ga. App. 265, 265-66 (180 SE2d 596) (1971) (“There is nothing on the receipt of mailing that indicates the contents of the matter mailed to [the insured].”).

        See Stapleton, 209 Ga. App. at 674 (2) (“This affidavit shows the supervisor was the custodian of the documents showing that the notice of cancellation of [the] policy was properly mailed, and the purpose of her affidavit was to satisfy the criteria necessary for admissibility of these documents as business records. Accordingly, it is not required that this supervisor have actual personal knowledge of the preparation of and mailing of the notice.” (citations omitted) (citing Allstate Ins. Co. v. Buck, 96 Ga. App. 376, 378 (100 SE2d 142) (1957))).

        Id.

        Cf. Reynolds v. Infinity General Ins. Co., 287 Ga. 86, 91 (694 SE2d 337) (2010) (“The . . . notice plainly states . . . that coverage under the policy will cease on a certain time and date. And, it explains why coverage is being cancelled — because the insured has failed to pay for the policy. There is nothing in the notice to indicate that the cessation of coverage will not occur; there are no misleading or confusing statements.”).

        Compare Zilka, 291 Ga. App. at 667 (2) (“[The insurance company] reinstated the policy upon its receipt of the premium payment..., but nothing in the policy required that the reinstatement be retroactive to the date of cancellation, and the notice of cancellation specifically provided that there would be no coverage between the date of cancellation and the date of any reinstatement.” (citation omitted)).


author: Blood-worth, J. Bloodworth, J.

text:
    14378.
    THORPE v. KITTLES.
    Decided October 3, 1923.
    Rehearing denied December 5, 1923.
    Garnishment; from McIntosh superior court—Judge Sheppard. December 4, 1922.
    Application for certiorari was denied by the Supreme Court.

      Travis & Travis, for plaintiff in error.

      Tyson & Tyson, Edwin A. Gohen, contra.
   Blood-worth, J.

1. There are no new facts or issues in this case to change the view taken of it by this court when it was previously here (Kittles v. Thorpe, 29 Ga. App. 146, 114 S. E. 228); and the judgment of the trial court in attempting to enforce this court’s ruling must be affirmed. Sanderlin v. Sanderlin, 27 Ga. 334; Southwestern Railroad v. Wright, 68 Ga. 312 (6); Heyman v. Southern Railway Co., 122 Ga. 608 (50 S. E. 342).

2. The request that ten per cent, damages be awarded against the plaintiff in error, for bringing the ease to this court for delay only, is denied.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.

ON MOTION ROE REHEARING.

Bloodworth, J.

Upon a careful comparison of each ground of the motion to dismiss the garnishment proceeding made in this case on the last hearing thereof with those set out in the cross-bill of exceptions which this court dismissed on October 5, 1922 (Thorpe v. Kittles, 29 Ga. App. 146, 114 S. E. 228), we find the grounds to be identical, and all the material issues made in this case were raised either in the motion or the cross-bill of exceptions when the case was previously before us. For this reason our former judgment is controlling, and is the law of the case. “When a case is brought to this court a second time, with no new facts to change substantially the view of it taken before, it only remains for this court to reaffirm its first judgment by affirming generally the judgment of the court in attempting to enforce it.” Sanderlin v. Sanderlin, 27 Ga. 334. When this case was first before us the garnishee, in his cross-bill of exceptions, assigned error on the overruling of his motion to dismiss the garnishment proceedings at the May term, 1921, of McIntosh superior court. The motion contains, as stated above, the same grounds as the motion which is the basis of the case now under consideration. This court then held that the question raised by the cross-bill of exceptions was moot, because the trial court in that case did dismiss the garnishment proceedings at the following December term of said court. Plaintiff in error now contends that the grounds of the motion which raised a moot question then are now material and vital in this case, and should be considered, as the judgment in the ease under consideration rests upon their validity. However, in the light of this court’s former ruling on the main bill of exceptions, the grounds of this motion to dismiss the garnishment proceedings cannot be considered, because we then ruled as follows: “The court erred in dismissing the garnishment proceedings and in rendering judgment for the garnishee. No legal and proper answer having been filed within the time provided therefor by law, upon proof that plaintiff had obtained judgment against the original defendant the court should have awarded judgment against the garnishee.” A summons of garnishment is an order of court; and if the garnishee would be in a position to urge reasons why a garnishment should be dismissed, he must first comply with the order of the court and answer the summons of garnishment. For this court to hold now that the garnishment should be dismissed would simply be to reverse our former decision that it should not have been dismissed. We reaffirm our opinion that there are no new facts or issues in this case to change our view taken of it when it was previously before us, and the judgment of the trial court in attempting to enforce this court’s ruling must be affirmed. Southwestern Railroad v. Wright, 68 Ga. 312 (7); Heyman v. So. Ry. Co., 122 Ga. 608 (50 S. E. 342). In the last hearing of the case in the superior court that court, as was its duty, complied with the former ruling of this court. As shown on its face, that ruling was based upon the failure of the garnishee to answer properly within the time provided by law; and this failure to answer—to comply with the court’s order —precluded him from going into the merits of the garnishment proceeding.

Rehearing denied.

Broyles, G. J., and Luke, J., concur.


author: Bloodworth, J.

text:
    14457.
    CLARK v. FIRE ASSOCIATION OF PHILADELPHIA.
    The evidence having failed to show compliance with the warranty known as the “iron-safe clause,” the plaintiff was not entitled to recover on . the policy sued upon, and a nonsuit was properly granted.
    Decided October 3, 1923.
    Rehearing denied November 15, 1923.
    Action on fire-insurance policy, from city court of Thomasville—■ Judge Hammond. December 21, 1922.
    Certiorari was granted by the Supreme Court.

      Titus & Dekle, for plaintiff.

      Smith, Hammond & Smith, L. S. Moore, for defendant.
   Bloodworth, J.

Judgment affirmed.

Broyles, G. J., and Lulce, J., concur.