text:
    A10A1959.
    WILLIAMS v. THE STATE.
    (708 SE2d 32)
   BARNES, Presiding Judge.

Ronnie Lee Williams appeals from the denial of his motion for new trial following his convictions for trafficking in cocaine, possession of cocaine with intent to distribute, possession of methamphetamine, and possession of a firearm during certain crimes. Williams and his co-defendants filed a motion to suppress, which the trial court granted. The State appealed, and this Court reversed the judgment in State v. Howard, 264 Ga. App. 691 (592 SE2d 88) (2003). Before the case proceeded to trial, Williams filed a motion for severance from his two co-defendants, which the trial court denied. The three were tried together, and on October 6, 2004, Williams was convicted of the aforementioned crimes.

Williams timely filed a motion for new trial which, following a hearing, was denied. He thereafter filed a notice of appeal, and his case was docketed in this Court on October 25, 2007. Trial counsel died before the appellate brief was filed, and the appeal was dismissed. Williams then filed a motion for an out-of-time appeal, which the trial court granted, and this appeal ensued.

In his appeal, Williams contends the trial court erred in denying his motion to sever, and that in light of the United States Supreme Court’s decision in Arizona v. Gant, 556 U. S. 332 (129 SC 1710, 173 LE2d 485) (2009), the drugs were seized based on an illegal search such that his motion to suppress should have been granted. Upon our review, we disagree and affirm.

The relevant facts as presented in State v. Howard reflect

that Ralph Howard (“Howard”) was driving a black Corvette on Highway 121 in Charlton County when the car struck and killed a deer. ... A passing volunteer firefighter informed a Charlton County Deputy Sheriff about the disabled car, and the deputy proceeded to the scene. When he arrived, he observed a tow truck and three individuals [one of whom was Williams, the other was Howard’s wife], who were standing near the disabled Corvette, which was in the process of being loaded onto the tow truck.
The deputy immediately told the tow truck driver to stop loading the Corvette. He then asked whether a report was needed of the accident and, if so, he would have to know who the driver was and see proof of insurance. Howard identified himself as the driver, said he did need a report, and gave the deputy a Georgia driver’s license. When the officer called his dispatcher to have a computer check run on the license, it “came back suspended” because of insurance cancellation. When asked for his insurance card, Howard did not furnish one, but he handed the officer a paper bearing a toll-free number and showing a price quote for insurance on the Corvette. Finding this insufficient proof of insurance, the deputy placed Howard under arrest for not having proof of insurance and driving without a valid license. The deputy then instructed the tow truck driver to tow the Corvette to the sheriffs office. . . .
[Williams and the wife] were not arrested at that time. They rode to the sheriffs office with Howard’s brother, who had arrived at the scene of the accident. The car was towed to the sheriffs office as well, and Howard was taken to the jail in the patrol car. At the sheriffs office, the deputy completed the search of Howard’s car. A blue duffel bag was found on the passenger’s side of the floorboard, and in the bag was a brown paper sack. Inside the sack was a plastic bag wrapped in a white towel and containing a white powdery substance that appeared to be cocaine. In the bottom of the bag he found a pistol in a holster.
During the search, the two passengers were standing nearby, and Howard’s wife “kept coming back to the vehicle.” She first told the deputy that “she had some naked photos in a bag” in the car and that she did not want the deputies to see them. Once the duffel bag was found, she placed her hand on the paper sack, saying it was her sandwich and asking if she could carry it with her. The completed search revealed no photographs or sandwiches. After the contraband was found, the deputy locked the car and placed the passengers under arrest. [Williams told the officers that the duffel bag belonged to him but that he knew nothing about the plastic bag.] Officers then sought and obtained a search warrant for the car. While executing the warrant, an aerosol can also was found in the blue bag. Inside the can’s false bottom deputies found two plastic baggies containing a white powder.

State v. Howard, 264 Ga. App. at 691-692. At the trial, Howard and his wife testified that the duffel bag belonged to Williams.

1. Williams first maintains that the trial court erred in denying his motion to sever his trial from that of his two co-defendants. He asserts this as error because his defense was antagonistic to his co-defendants’ defense. He specifically complains that he was prevented from injecting bad character evidence against Howard during trial.

A defendant who seeks a severance must show clearly that he will be prejudiced by a joint trial, and in the absence of such a showing, this Court will not disturb the trial court’s denial of a severance motion. [Cit.] The trial court is to consider whether a joint trial will create confusion of the evidence and law, whether there is a danger that evidence implicating only one defendant will be considered against a co-defendant despite limiting instructions, and whether the defendants are asserting antagonistic defenses. [Cit.]

Denny v. State, 281 Ga. 114, 115-116 (1) (636 SE2d 500) (2006). This Court will not find that the denial of a motion for severance was an abuse of discretion unless it appears that the defendant suffered prejudice that amounted to a denial of due process. Owen v. State, 266 Ga. 312, 314 (2) (467 SE2d 325) (1996). Moreover, “[t]he mere fact that co-defendants’ defenses are antagonistic is not sufficient in itself to warrant the grant of a separate trial absent a showing of harm. [Cit.]” Holmes v. State, 272 Ga. 517, 518 (2) (529 SE2d 879) (2000).

Williams does not contend that the joint trial created confusion or that evidence of his co-defendants’ crimes would implicate him; instead he primarily focuses on the third factor — that the defendants were asserting antagonistic defenses. All three defendants denied the respective charges against them, and neither of the two co-defendants testified that the drugs belonged to Williams. Each maintained that he or she did not know anything about the drugs in the duffel bag. Although they testified that the duffel bag belonged to Williams, Williams had never denied possessing it.

Furthermore, although Williams complains that he was not permitted to question Howard about his possible past involvement in drug activity,

[t]he simple fact that a defendant desires [certain] testimony of a co-defendant which might be unavailable at a joint trial is not enough to require severance, absent a showing of prejudice to the defendant. In fact, as a threshold matter, when the defendant requests a severance under these circumstances, the defendant must prove: (1) a bona fide need for the testimony; (2) the substance of the testimony; (3) its exculpatory nature and effect; and (4) that the co-defendant will in fact testify if the cases are severed.

Avellaneda v. State, 261 Ga. App. 83, 87 (581 SE2d 701) (2003). This Williams has not done. Accordingly, the trial court did not err in denying Williams’ motion to sever.

2. Williams next contends that this Court’s decision in State v. Howard, reversing the trial court’s grant of his motion to suppress, was erroneously decided in light of Gant. In Gant, the Supreme Court held that police officers are authorized “to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search” or “when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle,’ ” which will often not be the case when the arrest is for traffic violations. (Citation omitted.) Gant, 556 U. S. at_(129 SC at 1719).

In State v. Howard, we noted that although Howard was arrested, his automobile had been involved in a one-car accident and was about to be towed when police responded to the scene. State v. Howard, 264 Ga. App. at 691. The arresting officer testified that he performed an inventory search with the intention of impounding the car. Id. at 692 (1). We observed that “neither the brief three-sentence order granting the motions to suppress nor the transcript of the hearing on the motions discloses the trial court’s rationale or the ground on which the motions were granted,” id. at 692, but in reversing the trial court’s motion to suppress, held that “[bjecause impoundment was reasonable and the search also was performed incident to Howard’s lawful arrest, the trial court did not have a substantial basis for granting appellees’ motions to suppress.” Id. at 694.

Thus,

[w]e need not determine whether the search of the [automobile] after [Howard’s] arrest was valid under Gant, . . . because it is apparent that the evidence seized from the vehicle would have been discovered during the subsequent inventory of the vehicle and that it was therefore admissible under the inevitable discovery rule. See Mathis v. State, 279 Ga. 100, 102 (3) (a) (610 SE2d 62) (2005) (explaining that “(w)e will affirm a trial court’s ruling if it is right for any reason”).

Humphreys v. State, 287 Ga. 63, 76-77 (7) (694 SE2d 316) (2010); see Wright v. State, 276 Ga. 454, 461 (5) (579 SE2d 214) (2003) (The State may inventory the contents of a car that has been lawfully impounded when, under the circumstances, the officer’s conduct in impounding the vehicle was reasonable within the meaning of the Fourth Amendment.).

Although Williams argues that the impoundment was not warranted in this case, the issue of the reasonableness of the impoundment was adjudicated on the merits in Howard, and “[a]ny issue that was raised and resolved in an earlier appeal is the law of the case and is binding on this court.” Whatley v. State, 218 Ga. App. 608, 611-612 (2) (462 SE2d 779) (1995).

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

Decided March 16, 2011.

Joseph E. East, for appellant.

Richard E. Currie, District Attorney, Alexander J. Markowich, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Doyle, Judge.

license: Public Domain

text:
    A10A2068.
    HUTTO v. CACV OF COLORADO, LLC.
    (707 SE2d 872)
   Doyle, Judge.

CACV of Colorado, LLC, filed suit against Tammy E. Hutto to collect past due sums under the terms of a Mastercard/Visa credit card agreement. The trial court granted summary judgment to CACV and Hutto appeals, arguing that CACV (1) failed to establish a valid legal contract between Hutto and CACV’s predecessor; and (2) failed to demonstrate that CACV had standing to sue Hutto as an assignee of any debt she owed. We reverse, for reasons that follow.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A defendant moving for summary judgment may put forth evidence to show that there is no issue of fact as to one or more elements of the plaintiffs causes of action or demonstrate that the record lacks sufficient evidence to support one or more of the plaintiffs causes of action. We review the grant or denial of summary judgment de novo, construing the evidence in favor of the nonmovant.

So viewed, the record shows that on August 8, 2005, CACV alleging that it was the successor-in-interest of Chase Manhattan Bank, filed suit to collect the principal amount of $29,031.83 (plus accrued interest and additional pre-judgment interest) owed on a credit card agreement allegedly entered into by Hutto and Chase Manhattan Bank. Attached to the complaint was a standard cardholder agreement entitled “CHASE VISA/MasterCard CREDIT AGREEMENT,” which stated that the term “we” referenced in the agreement referred to “The Chase Manhattan Bank (USA)”; Hut-to’s name did not appear in the agreement. Hutto filed an answer to the complaint, in which she denied the alleged debt and requested validation thereof under the Fair Debt Collection Practices Act.

On December 22, 2005, CACV filed a motion for summary judgment, arguing that it was entitled to judgment as a matter of law. Attached to the motion was an affidavit from John Becker, who identified himself as an agent for CACV with personal knowledge of the matters stated therein. Becker averred that he had reviewed CACV records, which indicated that Hutto owed $29,031.83 plus accrued interest in the amount of $11,832.29, under the terms of a credit card agreement with Chase Manhattan Bank. Also attached to the motion was a document entitled “Affidavit of Sale,” which was signed by Robert Watson, an assistant vice president for JP Morgan Chase & Co. Watson averred that Hutto

had a credit card account with JP Morgan Chase & Co., account [.. . 5639]. The account was sold and transferred to CACV of Colorado, LLC on 7/30/2003. ... At the time of the sale to CACV of Colorado, LLC, the amount due on the account pursuant to the terms of the cardholder agreement between JP Morgan Chase & Co. and TAMMY E. HUTTO was $29,031.83. . . . Your deponent acknowledges that in [sic] making this affidavit that CACV of Colorado, LLC is now the owner of said account, and is authorized to collect, settle, adjust, compromise[,] and satisfy the same and that JP Morgan Chase & Co. has no further interest in said account for any purpose.

On March 27, 2006, the trial court granted summary judgment to CACV in the amount sought, plus attorney fees in the amount of $3,741.08. Thereafter, on December 28, 2009, Hutto filed a motion to set aside the judgment, alleging that she never received a copy of the motion for summary judgment, nor did she receive a copy of the order. Attached to the motion were affidavits from Hutto, her husband, and her son, averring that they never received a copy of the summary judgment motion, discovery, or the judgment. On April 29, 2010, following a hearing, the trial court entered an order setting aside the March 2006 judgment and again granting summary judgment to CACV Hutto appeals the grant of summary judgment.

1. Hutto argues that the trial court erred by granting summary judgment to CACV because CACV failed to establish that it was a real party in interest with the right to sue Hutto to collect sums due under the cardholder contract. We agree.

In Georgia, “[a]s a general rule, an action on a contract. . . shall be brought in the name of the party in whom the legal interest in the contract is vested, and against the party who made it in person or by agent.”

A party may assign to another a contractual right to collect payment, including the right to sue to enforce the right. But an assignment must be in writing in order for the contractual right to be enforceable by the assignee. Further, the writing must identify the assignor and assignee. To prevail on its motion for summary judgment, [CACV], as movant, has the burden of establishing the non-existence of any genuine issue of fact, including [Hutto’s] assertion that [CACV] is not the real party in interest, and all doubts are to be resolved against [CACV].

Here, CACV relies on the Watson affidavit to show that Chase Manhattan Bank assigned its rights to and interests in Hutto’s account. But Watson, an assistant vice president of JP Morgan Chase & Co., states that Hutto’s account with JP Morgan Chase & Co. was sold to CACV Watson’s affidavit contains no mention of Chase Manhattan Bank. Thus, this document is insufficient to establish a valid assignment of rights from Chase Manhattan to CACV

On appeal, CACV also relies on a document entitled “Bill of Sale,” which appears in the record as an apparent attachment to CACV’s response to Hutto’s motion to set aside the judgment; the Bill of Sale is not included as an exhibit or attachment to CACV’s summary judgment motion. Pretermitting whether CACV may rely on a document that was not filed in support of its motion for summary judgment, the Bill of Sale does not constitute sufficient evidence of a valid assignment between Chase Manhattan Bank and CACV The Bill of Sale provides:

Decided March 16, 2011.

FOR VALUE RECEIVED, and pursuant to the terms and conditions of the Credit Card Account Purchase Agreement between Chase Manhattan Bank USA, National Association (“Seller”) and CACV of Colorado, LLC (“Purchaser”), dated as of July 30, 2003, Seller does hereby sell, assign[,] and convey to Purchaser, its successors^] and assigns, all right, title[,] and interest of Seller in and to those certain accounts described in Exhibit “A” attached hereto and made a part hereof for all purposes.

CACV did not file a supporting affidavit authenticating the Bill of Sale. Furthermore, the Bill of Sale stated that it was assignment of “certain accounts” listed in “Exhibit A”; there is no document attached thereto labeled “Exhibit A,” and the document immediately following the Bill of Sale in the record appears to be a statement to Hutto, not a list of accounts. Finally, the Bill of Sale contradicts the Watson affidavit, which states that JP Morgan Chase & Co., not Chase Manhattan Bank, sold its rights to Hutto’s account to CACV

Under these circumstances, we conclude that “ [t]his evidence, even together with the reasonable inferences from it, was insufficient to establish [a valid assignment of rights to CACV].”

2. In light of our holding in Division 1, we need not address Hutto’s remaining enumeration.

3. In its response brief, CACV argues that the trial court erred by setting aside the 2006 judgment because Hutto’s motion to set aside was untimely. But because CACV did not file a cross-appeal raising this argument, the issue is not before us and will not be considered.

4. Hutto’s motion to strike CACV’s amended brief is denied as moot.

Judgment reversed.

Ellington, C. J., and Andrews, J., concur.

Lawrence A. Silverman, for appellant.

Arthur C. Nilsen, for appellee.

       (Citations and punctuation omitted.) Koncul Enterprises v. Fleet Finance, 279 Ga. App. 39 (630 SE2d 567) (2006). See OCGA § 9-11-56 (c).

       (Emphasis omitted.)

       According to Hutto, she did not learn about the judgment until she received a letter dated September 14, 2009, from an attorney seeking to collect the judgment.

       The order specifically noted that the court’s case file lacked a certificate of service or any other indication that Hutto was provided with a copy of the judgment.

       OCGA § 9-2-20 (a).

       (Citations and punctuation omitted.) Wirth v. Cach, LLC, 300 Ga. App. 488, 489 (685 SE2d 433) (2009).

       On appeal, CACV also notes that “[t]he [r]ecord does not show the filing of any response by [Hutto] to [CACV’s] Request for Admissions,” and states that Hutto “ignores [her failure] to deny the [a]dmissions of [CACV] as to the correctness of the . . . assignment of the account. ...” But, although the record contains a certificate of service showing that CACV served Hutto with requests for admissions, the requests themselves are not in the record. Thus, CACV’s apparent argument that Hutto has effectively admitted the assignment of the account is without merit.

       See id. at 490.

       See Yates v. CACV of Colorado, 303 Ga. App. 425, 431 (1) (693 SE2d 629) (2010).

       See id.

       There is no evidence in the record connecting JP Morgan Chase & Co. with Chase Manhattan Bank.

        Nyankojo v. North Star Capital Acquisition, 298 Ga. App. 6, 10 (679 SE2d 57) (2009). See also Yates, 303 Ga. App. at 431 (1); Wirth, 300 Ga. App. at 491; Ponder v. CACV of Colorado, 289 Ga. App. 858, 859-860 (658 SE2d 469) (2008).

       See OCGA § 5-6-38 (a); Carter v. Murphey, 241 Ga. App. 340, 343 (1) (526 SE2d 149) (1999).


author: Adams, Judge.

text:
    A10A2071.
    WILLIAMSON v. THE STATE.
    (708 SE2d 57)
   Adams, Judge.

Abdullah Williamson appeals the denial of his motion for new trial after a jury convicted him of two counts of armed robbery, three counts of aggravated assault with a deadly weapon, three counts of possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the evidence at trial showed that on or about September 7, 2006, Ardis Toney, Michael Buchanan, and Jovan Priest, all members of a rap group known as “Three Kings,” were in Atlanta to promote their CD. They were driving a black Cadillac and were planning to purchase ten to thirteen pounds of marijuana. The three met a “middleman” named “Tay,” at a gas station. Tay arrived at the station driving a gray Ford Focus. Buchanan got into the Focus with Tay and they drove away, followed by Toney and Priest in the Cadillac. Two men in a red Ford Mustang pulled up beside the Cadillac. Toney, who was driving the Cadillac, believed that these were the men with the marijuana, so he allowed the Mustang to get in front of him and he continued to follow. The Focus turned into a driveway and the Mustang pulled in next; Toney pulled the Cadillac in behind the Mustang.

When the cars stopped, the driver of the Mustang got out of the car and walked right in front of the Cadillac toward the Focus with a bag of marijuana, presumably to show Buchanan. The driver then walked back in front of the Cadillac to return to the Mustang. Toney could not see the driver well until the driver got out of the Mustang and walked in front of the Cadillac. He explained that this meeting took place around 6:00 or 7:00 p.m., and it was still light outside. He said that the driver of the Mustang was wearing green and also wore sunglasses and a hat over his “low cut” hairstyle. The other man had dreadlocks and wore a white shirt and an Atlanta Braves hat. Toney identified Williamson at trial as the man without the dreadlocks and as the driver of the Mustang.

Buchanan then got out of the Focus and into the passenger side of the Mustang beside Williamson, who had returned to the car. Toney testified that neither Buchanan, Priest, nor he had a gun that day. Buchanan had $3,000 to $5,000 in his pocket, and they had $10,000 in a red box inside the Cadillac. Buchanan and the driver spoke for a few minutes, and then Buchanan got out of the car and walked toward the Cadillac. The man with the dreadlocks walked to the car with him, and Buchanan showed the man the $10,000 in the box. Buchanan returned to the Mustang and within 30 seconds, Toney heard a gunshot, which he said “had to be inside the car.” Toney was sure that Tay had not been the one to fire the shot. Buchanan jumped out of the car and ran past the Cadillac where he collapsed on the ground. The driver then got out of the Mustang, walked to the Cadillac and pointed a gun at Toney and Priest. Buchanan yelled at Toney and Priest to give him the $10,000. Toney passed the money to Priest who threw it out the window toward the man with the white shirt and the dreadlocks. Williamson and the man with the dreadlocks jumped in the Mustang and drove off. Toney and Priest then put Buchanan in the car and started to follow Tay to the hospital, but they were intercepted by the police, who summoned an ambulance. Buchanan later died from his injuries.

Toney and Priest subsequently picked Octavian Dwight out of a lineup and identified him as Tay, the middleman who set up the drug deal. But seven days after this incident, police showed Toney and Priest a six-photograph lineup that included a photograph of Williamson. Neither Toney nor Priest was able to pick Williamson out of the lineup. Toney testified that he looked at the driver again briefly for about five seconds when he was pointing the gun at him. When Williamson’s counsel asked Toney whether he could tell the jury beyond a reasonable doubt that Williamson was the man driving the Mustang that day, Toney replied, “He didn’t have hair like that. He had a hat on, and had some shades on, but he resembles him very much so.” He went on to say, however, that he could “assume” that it was Williamson because he was sitting at the defense table. But when Williamson’s attorney again pressed him on his identification, Toney stated, “Totally honest, he looks like him, yeah.”

Jovan Priest also testified that the Mustang’s driver got out of the car to show Buchanan some marijuana, but he did not get a good look at him. Buchanan was alone in the Mustang with the driver at the time the shot was fired. He saw Buchanan run from the car, and both the driver and the Mustang passenger, who had dreadlocks, pointed guns at Toney and Priest. Priest threw the red box with the money out of the car toward the man with the dreadlocks. He said that he made no eye contact with the men.

Fernando Cannon, Williamson’s co-defendant in the case, pled guilty the day before Williamson’s trial to charges of armed robbery and possession of a firearm during the commission of a felony. He was sentenced to 20 years to serve. When the State called Cannon as a witness at Williamson’s trial, he said that he had been “misguided” by his counsel and asked for a new attorney. Cannon said that he did not want to testify, and the trial court allowed the State to treat him as a hostile witness. The court also allowed Cannon five minutes to confer with counsel.

After testimony resumed, Cannon stated that he was involved in a drug deal with Octavian “Tay” Dwight on September 7, 2006 involving the sale of 13 pounds of marijuana. He admitted that he had said in court the day before that Williamson, Buchanan, Toney and Priest were also involved in the transaction. Cannon admitted saying that he was in the Mustang with Williamson that day; Tay was in a Ford Focus and the others were in a Cadillac. Cannon said that he was not in the Mustang at the time Buchanan was shot but rather got out of the car and went to the Ford Focus. He heard some arguing at the time Buchanan was in the Mustang. Although Cannon was extremely reluctant to respond to any questions involving Williamson, he confirmed that he had said at his plea hearing that only Williamson and Buchanan were in the Mustang at the time of the shooting, although he did not see the shooting occur. At the time of the shooting, Cannon was in the Focus with Tay, and Priest and Toney were in the Cadillac. Although Cannon apparently stated at the plea hearing that the shot came from inside the car, he testified at trial that he did not know where the shot came from.

After the shot rang out, Tay got out of the car and ran down the street. Cannon grabbed a gun from inside the Focus and got out of the car. He walked over to the Cadillac and pointed the gun at Priest and Toney. He acknowledged telling prosecutors the day before that Priest and Toney had thrown a red box out of the window of the Cadillac, but he refused to answer the prosecutor’s questions as to whether he got in the car with Williamson and drove away. Nevertheless, he admitted later that after the shooting he was dropped off “at the top of the street” where he got out of the Mustang. The driver of the Mustang drove off. Cannon said that he never drove the Mustang. At that point, Cannon ran home, out of breath, where he told his wife that he had heard a shot and he ran. He recalled her asking whether Williamson had shot somebody and he told her that he did not know.

On cross-examination, Cannon testified that he rode to the gas station that day with Tay in the Ford Focus where he saw the Cadillac with the men he later came to identify as Tony, Priest and Buchanan. Cannon went inside the gas station, and as he came out, he saw Buchanan get in the Ford Focus and one of the Cadillac passengers move to the Cadillac’s driver’s seat. The prosecutor then asked Cannon whether it was true that Williamson “was not at that scene” (emphasis supplied), and Cannon answered, “Correct.” But Cannon refused to respond when the defense attorney asked him to state that Williamson was not involved in the drug deal. And although Cannon testified that he did not see Williamson shoot anyone and did not even see him with a gun, he refused to respond when counsel asked him to state that Williamson was not at the scene of the shooting.

On re-direct, Cannon stated that after he had entered his guilty plea the day before, he had been attacked and almost stabbed that night in the Fulton County Jail. Cannon stated that he was quiet in response to any questions about Williamson because he did not want to testify against him. On re-cross, he clarified that the men who jumped him called him a “snitch on [Williamson].”

Bernithia Young, Cannon’s wife, also reluctantly testified at Williamson’s trial. Young stated that a man she believed to be Williamson called her the night before the trial and she got the impression from that conversation that if her husband testified against Williamson something would happen to her husband. Nevertheless, Young testified that Cannon came home on the day of the shooting breathing hard and panicking. She asked him what was wrong. He said that he thought someone had been shot. Cannon said that he had been in a car with Williamson and he thought Williamson had shot the person.

Larry Humphrey testified that he lived near the crime scene, and on the evening in question, he heard a gunshot as he was outside his house. When he ran around to the front to see what had happened, he observed two men standing up; one was hopping around. The other man, who had dreadlocks was saying, “Where the money, where the money?” At that point Humphrey went back inside to get a gun. When he re-emerged, he saw the man in dreadlocks get into the passenger side of the Mustang and the car drove off. He saw another man running away up the street, who later came back. He had heard a lady across the street holler and he believed that scared the men away. Humphrey and his partner then approached the Cadillac and asked if they needed paramedics, but the men in the car said that they would drive the injured man to the hospital.

Shirley Ashanti, another nearby resident, testified that she was inside her house on the phone when she heard cars screeching and loud arguing. She then heard a gunshot and looked out her window. Ashanti saw three cars, including a red sports car. She saw a person on the ground, bleeding who was trying to get up and run, and she saw a man with a cap holding a gun coming from the driver’s side of the red car. She said it looked like smoke was coming out of the gun and that he was coming around the car to shoot the person again. Before she knew it, she was outside yelling at him not to shoot anymore.

Detective D. R. Dumas of the Atlanta Police Department testified that he processed the crime scene in this case. He testified that a search of the scene revealed a small red box and a substance that looked like compressed marijuana but that Dumas believed it to be counterfeit because it did not have the strong pungent odor usually associated with the drug. Police also found a cigarette butt, an unfired cartridge and blood stains.

1. Williamson raises the general grounds, contending the State failed to present sufficient evidence to corroborate Cannon’s testimony. We disagree.

Although Williamson is correct that the uncorroborated testimony of an accomplice is not sufficient in and of itself to support a felony conviction,

it is not required that this corroboration shall of itself be sufficient to warrant a verdict, or that the testimony of the accomplice be corroborated in every material particular. Slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict. The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said, as a matter of law, that the verdict is contrary to the evidence.

(Citation omitted.) Wilson v. State, 306 Ga. App. 827, 828 (1) (703 SE2d 400) (2010). “If there is any evidence of corroboration, this court will not go behind the jury verdict and pass on its probative value.” (Citation and punctuation omitted; emphasis in original.) Id. at 829 (1).

Although Cannon did not witness the shooting, his testimony placed Williamson inside the red Mustang on the day in question and he confirmed his earlier statement that Buchanan and Williamson were alone in the car at the time of the shooting. Toney also identified Williamson as the man driving the Mustang that day and sitting with Buchanan inside the car at the time of the shooting. Toney had the opportunity to observe the driver when he walked back and forth in front of the Cadillac to show Buchanan the marijuana. After the shooting, that man got out of the car, walked over to the Cadillac, and pointed a gun at Toney and Priest. Toney glanced up again for about five seconds at that point. Although Williamson’s attorney attempted to cast doubt on this identification on cross-examination, Toney maintained that Williamson looked “very much” like the driver. It was for the jury, and not for this Court, to determine the proper weight to give Toney’s identification. “The determination of a witness’s credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury.” (Citation and footnote omitted.) Justice v. State, 263 Ga. App. 858, 859 (589 SE2d 624) (2003). Thus, the jury could have determined that Toney’s testimony provided corroboration for Cannon’s identification of Williamson. Further corroboration for both men’s testimony was provided by the neighbors’ description of the robbery and shooting, by Young’s description of Cannon’s demeanor and behavior that day, and by physical evidence found at the scene. See Benbow v. State, 288 Ga. 192, 194 (702 SE2d 180) (2010); Howard v. State, 286 Ga. 222, 228 (4) (686 SE2d 764) (2009); Wilson, 306 Ga. App. at 829-830 (1). Accordingly, the evidence was sufficient to support Williamson’s conviction beyond a reasonable doubt, and the trial court properly denied Williamson’s motions for directed verdict and new trial. Hardaway u. State, 188 Ga. App. 310 (1) (372 SE2d 845) (1988).

2. Williamson also argues that the trial court erred in denying his request to give the following charge:

Simply because an accomplice’s testimony is corroborated in most details, it does not follow that his (the accomplice’s) testimony alone as to the identity and participation of the accused is sufficient to justify conviction.

“The only requirement regarding jury charges is that the charges, as given, were correct statements of the law and, as a whole, would not mislead a jury of ordinary intelligence.” (Citation and punctuation omitted.) Corbin v. State, 305 Ga. App. 768, 771 (2) (700 SE2d 868) (2010).

It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. The failure to give requested instructions in the exact language requested, where the charge given substantially covers the same principle, is not grounds for reversal.

(Citation and punctuation omitted.) Singleton v. State, 297 Ga. App. 452, 454 (2) (677 SE2d 348) (2009).

We conclude from a review of the transcript that the trial court fully instructed the jury on corroboration of accomplice testimony. The trial court gave the pattern jury charge, stating in pertinent part that the corroborating evidence

must be more than that a crime was actually committed by someone. It must be sufficient to connect the accused with the criminal act. . . . Slight evidence from another source that connects the accused with the commission of the alleged crime and tends to show participation in it may be sufficient supporting evidence of the testimony of an accomplice in order to convict. In order to convict that evidence, when considered with all the other evidence in the case, must be sufficient to satisfy you beyond a reasonable doubt that the accused is guilty.

In addition, the trial court charged the jury on the State’s burden to prove beyond a reasonable doubt the identity of Williamson as the person who committed the crimes in the indictment, witness credibility, and factors the jury should consider in assessing the reliability of identification evidence. Thus the jury charge when considered as a whole fully covered the law on the required corroboration of accomplice identification testimony, and no reversible error occurred in failing to give Williamson’s requested jury charge.

3. Williamson’s counsel also objected when the prosecutor addressed the issue of corroboration in his closing argument. He asserts that the argument could have led the jury to misapply the law.

The prosecutor argued that although the State needed only slight evidence to corroborate Cannon’s testimony, it had “way more than slight evidence.’’ He explained:

If Mr. Cannon gets up, and think about what corroboration is, okay, we throw these words around, and we use them every day, but think about what corroboration is. If Mr. Cannon got up and said, they threw the money out in a red box, and we didn’t have a red box, well, guess what, we wouldn’t have anything to corroborate what he said. But guess what, we’ve got this red box. I have been waving it around.

Williamson’s attorney objected, stating that if the prosecutor was going to argue the law of corroboration, “he has got to argue it. . . correctly.” The trial court overruled the objection and instructed the jury, “Well, let me say both lawyers are arguing the law, and the jury will take the law from the Judge. The lawyers may talk about it, and I am going to overrule the objection.”

Decided March 16, 2011.

Franklin, Hubbard & Clayton, Curtis L. Hubbard, Jr., for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Bettieanne C. Hart, Assistant District Attorneys, for appellee.

Putting aside Williamson’s failure to specify a basis for his objection other than to imply that the prosecutor had somehow incorrectly stated the law, we find no error. Even if we were to assume that the objection properly preserved the argument raised on appeal, the prosecutor’s argument did not misconstrue the law. The prosecutor correctly stated that evidence that a red box was found at the scene would corroborate Cannon’s statement that the money had been thrown out in a red box. Nothing in the prosecutor’s argument implied, for example, that the evidence of the red box alone would be sufficient to corroborate Cannon’s identification of Williamson. Although Williamson points to other instances where the prosecutor argued corroboration, he raised no objection to any other portion of the argument. See Anderson v. State, 286 Ga. 57, 58 (4) (685 SE2d 716) (2009) (failure to make contemporaneous objections to closing argument of prosecutor waived issue for appeal). Accordingly, Williamson’s argument on this ground is without merit.

Judgment affirmed.

Ellington, C. J., and Andrews, J., concur.

       Williamson was also indicted on a charge of murder and two charges of felony murder, but the verdict form contains a handwritten note indicating that the jury was unable to reach a verdict on those charges.

       See Franklin v. State, 230 Ga. 291, 292 (1) (196 SE2d 845) (1973) (objection that question was “highly prejudicial” too general).


author: Dillard, Judge.

text:
    A10A2202.
    THE STATE v. BROWN.
    (708 SE2d 63)
   Dillard, Judge.

Harrison R. Brown, appellee, was indicted on one count each of aggravated sodomy, aggravated child molestation, child molestation, and felony sexual battery. Prior to his indictment, Brown confessed to investigators that he sexually molested the four-year-old child, but he later moved to suppress his statements on the ground that they were made involuntarily from a “hope of benefit”—namely, that he would not be charged with any of the crimes to which he confessed. Brown moved to suppress his confession, and the trial court granted his motion. For the reasons noted infra, we reverse.

The alleged victim in this case was the son of a woman who was dating Brown’s brother. Allegations of molestation arose when the child told his grandmother that Brown “had sucked on his wee-wee and made it bigger.” The sheriffs office asked Brown to come in for questioning, and he voluntarily complied with this request. Upon his arrival, Brown was advised of the allegations made against him, and he then had a brief meeting with a female investigator and a DFACS representative. The female investigator testified at the suppression hearing that she did not threaten Brown with arrest.

Brown was then questioned by two male investigators from the sheriff s office. Brown’s gradual confession to touching the child’s penis and placing it in his mouth occurred during this second interview, which was videotaped and spanned over the course of approximately two hours. This confession was initially made in a non-custodial setting. Indeed, the investigators advised Brown at the very beginning of the interview that he could leave any time he wanted, and Brown expressed his general familiarity with criminal procedure, informing the officers that he had taken criminal-justice classes in school.

The tone of the second interview was conversational, Brown was not in handcuffs, and the door to the office was unlocked. Once Brown confessed to placing his mouth on the child’s penis, the investigator immediately stopped the interview, told Brown that in light of what he had just confessed he would no longer be able to leave, and then gave Brown his Miranda rights. Although Brown volunteered that he was already aware of his Miranda rights, the investigator proceeded with reading those rights to him just the same. And prior to resuming any questioning, the investigator spent a considerable amount of time ensuring that Brown fully understood his Miranda rights and that he was willing to waive them by continuing with the interview. During this exchange, Brown tried repeatedly to discuss the incident and express remorse for his actions, but each time he did so, the investigator emphasized that he could not continue speaking to Brown unless he was first willing to waive his Miranda rights and sign the waiver form. Brown eventually initialed the Miranda waiver, thus acknowledging that he had been advised of his constitutional rights and that he, nevertheless, was willing to continue freely speaking with the investigator. After doing so, Brown repeated his earlier admissions—i.e., that he had touched the child’s penis and put it in his mouth. Brown then made similar inculpatory statements while speaking with a different investigator the following day. Thereafter, Brown was indicted for aggravated sodomy, aggravated child molestation, child molestation, and felony sexual battery. Brown moved to suppress his statements, and the trial court granted his motion. This appeal follows.

The crux of this appeal is whether Brown’s confession was voluntary or whether it was instead induced by a “hope of benefit” promised by the State. At the outset, we note that incriminating statements are only admissible if “made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” Thus, to overcome suppression, the State must show that (1) the suspect was not presented with the “slightest hope of benefit,” and (2) even if a “hope of benefit” was presented to the criminal defendant by the State, the suspect’s incriminating statements were not actually induced by this “hope of benefit,” such that his or her confession was rendered involuntary as a matter of law.

In a motion to suppress hearing, the State must demonstrate voluntariness by a preponderance of the evidence, and the trial court’s determination must be based on the totality of the circumstances. Then, in reviewing the trial court’s suppression of evidence, we “must construe the evidence most favorably to . . . upholding . . . the trial court’s findings and judgment.” Moreover, because “we accept the trial court’s findings on disputed facts and witness credibility,” a determination of voluntariness must be upheld unless it is clearly erroneous. Nevertheless, when “controlling facts are not in dispute, . . . such as those facts discernible from a videotape, our review is de novo.” Finally, we apply the legal principles to the facts independently. With the foregoing in mind, we now consider the State’s enumerations of error.

1. On appeal, the State argues that there is no evidence that the investigators suggested to Brown that the possibility of arrest was contingent upon what was said in the interview. Brown contends, and the trial court agreed, that the investigators gave him the impression at the beginning of the interview that he would not face criminal charges when the investigators told Brown he would go home after the interview regardless of what he told them. Specifically, Brown claims that his statements to investigators, both before and after the reading of his Miranda rights, were involuntary and inadmissible. We agree with the State that, when considered in the totality of the circumstances, the statements by investigators did not suggest that Brown would never be arrested or charged regardless of what he said during the interview.

The reward of a lighter sentence is generally what is meant by the phrase “hope of benefit,” as used in OCGA § 24-3-50. When an accused is made a promise concerning a collateral benefit, however, his subsequent confession is not excludable. Indeed, we have previously held that statements referring to an accused going home after an interview are collateral promises that in no way relate to the sentence or charges facing the suspect. Additionally, we have held that a hope of benefit may be dispelled by a statement that an officer has no influence over an accused’s possible punishment.

And here, the videotaped confession shows that Brown inquired as to what would happen to him, hypothetically, if he had done what the child alleged. One of the investigators responded, “First of all, . . . I’m not gonna sit here and tell you what a judge is going to do ... I can’t tell you what the penalties are because I’m not the judge. And I’m not even going to go out on that limb.” The second investigator then said, “I mean, we can’t sit here and promise you anything or tell you anything. . . . What I can tell you is . . . when you leave here, no matter what you tell me or say . . . you’re going home.” The second investigator continued to tell Brown that “if you tell me it happened, I’m not going to snatch you up, place you in handcuffs and drag you back there in the back . . . I’m not going to ruin that relationship by snatching you up.” The first investigator then said, “Unless you killed somebody. Now if you killed somebody, you ain’t going home.”

The statement that Brown would not be arrested on the spot was collateral and clearly not the type of “hope of benefit” contemplated by OCGA § 24-3-50. But even assuming that this statement was not collateral, any hope of benefit was clearly dispelled by the officers’ assertions that they had no control over what would ultimately happen to Brown. Furthermore, throughout the interview—before, during, and after his confession—Brown expressed an understanding that there would be consequences for his actions. Indeed, shortly after the investigating officers made the allegedly confession-inducing statements, Brown continued to deny that he had done anything to the child. The investigators then asked Brown what he thought should happen to somebody who did what was alleged, and Brown speculated that such a perpetrator would face jail time, probation, and rehabilitation. Additionally, when investigators said “[fit’s not going away,” Brown said that he understood that was the case and that there would be consequences for his actions. One investigator even said that he would not tell Brown that there would not be consequences for his actions.

And when Brown eventually confessed to placing the child’s penis in his mouth, the investigator immediately responded, “You know I can’t let you get up and walk out of here with what you just told me,” and then proceeded to recite to Brown his Miranda rights. Brown acknowledged his understanding of the investigator’s statements and at no point attempted to retract his confession, instead repeatedly saying, “I’m screwed.” Brown also repeatedly attempted to continue speaking with the officer who maintained that he could not speak to Brown any further unless and until Brown first signed the Miranda waiver form. Moreover, throughout the significant amount of time between his first confession and his signing of the Miranda waiver, Brown indicated several times that he knew he was going to jail. Brown also asked the investigator what would happen after the interview, and the investigator responded that Brown would be charged, booked, and go to court; but the investigator also advised that he could not tell Brown whether he would ultimately go to prison. Brown also inquired as to the possibility of posting a bond, and the investigator advised him that he would have no say as to whether Brown received a bond or would instead go to jail. Finally, Brown stated that he knew he would be required to register with the State as a sex offender. After this conversation transpired and Brown signed the Miranda waiver, he again confessed to molesting the child.

Given the foregoing, we cannot agree with the trial court that the investigators’ statements that Brown would go home after the interview offered him a “hope of benefit” that would otherwise render his confession inadmissible. Here, immediately before telling Brown that he would go home after the interview, the officers said that they could not promise him what a judge would do if he confessed to molesting the child. Morever, Brown repeatedly expressed a keen understanding that there would indeed be serious consequences for his actions. Accordingly, as indicated by his own statements in the interview, Brown could not have reasonably understood the investigators’ statements to mean that he would never be charged or arrested for his crimes.

2. The State also argues that, considering the totality of the circumstances, “it cannot be said that any statement made by [the] investigators induced [Brown] to make a false statement.” In this respect, we note that the trial court’s order omits any analysis of the totality of the circumstances. Following our de novo review of the videotaped confession, we agree with the State that, even if the complained-of statements did constitute an improper “hope of benefit,” they, nevertheless, when viewed in the totality of the circumstances, did not actually induce Brown’s confession.

The voluntariness of a confession ultimately turns on “the effect of the totality of the circumstances on the defendant’s will,” and this analysis “requires an assessment of human motivation and behavior.” The Supreme Court of the United States has held that, in making this assessment, the following characteristics of the accused and the details of the interrogation are to be considered: the accused’s youth; the accused’s lack of education; the accused’s low intelligence; the lack of any advice regarding the accused’s constitutional rights; the length of detention; the repeated and prolonged nature of questioning; and the use of physical punishment. And while our case law requires a specific nine-factor analysis only in cases of juvenile confessions, the Supreme Court of Georgia has acknowledged that “some of those factors are often relevant in determining whether an adult’s confession is voluntary under the totality of the circumstances.”

And here, the record shows that Brown was familiar with his constitutional rights; was 19 years old at the time of the interview; was a high school graduate (who had previously taken criminal-justice classes); was aware of the allegations against him; was not in custody when he initially confessed; was not yet indicted; was not yet subject to any arrest warrants; and was questioned for approximately two hours but confessed after less than one hour. Additionally, a large portion of the interview consisted of the investigator explaining that he could no longer talk to Brown unless and until he signed a Miranda waiver form.

Furthermore, after the investigators told Brown that he would go home, Brown repeatedly denied—for the next five minutes—ever touching the child or placing the child’s penis in his mouth. The investigators then explained to Brown that there are people who have problems and that it was their job to help those people before their problems got out of control. The investigators also told Brown that they wanted to help him so that his problems would not escalate. Nevertheless, Brown continued his repeated denials that he had done anything to the child, even saying that he had vomited when informed of the allegations.

Thereafter, Brown spontaneously told the investigators that there had been instances when the child would try to kiss him. The investigators immediately seized on this statement, asking Brown if the child would “come onto him,” and advising Brown that he should tell them if the child wanted to be touched and whether Brown was only acting on the child’s request. Brown’s gradual confession started when, at this prompting, he said, “Actually, now that you mention it—saying it like that, there was actually one time when he wanted me to [touch his penis], and I told him no.” The investigators then responded to this statement by telling Brown that if the child wanted him to touch his penis, this was not the time to lie about it and that Brown would feel better once he told them what had actually happened. Brown then finally admitted to touching the child on one occasion, alleging that the child asked him to do so.

A conversation then ensued between the investigators and Brown, with the investigators telling Brown that the truth would let him move on with his life, that sometimes good people make bad decisions, that there is help for people who make bad decisions, and other statements along those lines. Nevertheless, throughout the course of this exchange, Brown continued to deny the totality of what had happened. The investigators told Brown that this interview was his chance to tell his side of the story, but Brown responded that his parents would kill him if he confessed. Brown then asked whether the child would need counseling, and the investigators explained that they needed closure for both Brown and the child. This was yet another turning point in the interview, when Brown broke down into tears and said that he knew the child would hate him. Brown then said that the child had “wanted someone to play with his wee-wee,” and Brown admitted that he had placed the child’s penis in his mouth one time.

For the next 15 to 20 minutes, Brown’s confession continued, and he voluntarily spoke to the investigator after the reading and waiver of his Miranda rights. At no time during the course of this interview did Brown attempt to retract his confession or express anything remotely suggesting that his confession was in any way induced by the officers’ earlier statements that he would be able to go home no matter what he said to them during the interview.

Given the foregoing circumstances, we find that Brown made his incriminatory statements voluntarily and that he was not induced by the officers’ statements that he would be allowed to go home after the interview no matter what he said. Indeed, Brown’s change in demeanor began only after the investigators asked whether he had merely responded to the child’s desire to be touched, and it was this line of questioning and the emotional appeals made by the investigators to Brown—to clear his conscience and bring closure to this matter—that ultimately induced the confession that followed. Additionally, as detailed in Division 1, supra, Brown repeatedly asked the officers questions and made statements to them about the consequences he would face if he admitted to molesting the child—a strong indication that he fully understood the ramifications of his actions and that he was in no way under the impression that making an inculpatory statement would spare him from arrest, prosecution, or jail time. Finally, Brown at no point attempted to repudiate his statements, even after an investigator told Brown that he would not be able to leave. Indeed, upon being advised that he would not be allowed to leave the premises, Brown indicated that he knew going home was no longer an option.

Decided March 16, 2011

Richard A. Mallard, District Attorney, Brian A. Deal, Assistant District Attorney, for appellant.

Jackson & Schiavone, George T. Jackson, for appellee.

In sum, even if the complained-of statements arguably constituted an improper “hope of benefit,” we cannot say—after considering the totality of the circumstances surrounding those statements—that they actually induced Brown to make his confession.

Accordingly, for all of the foregoing reasons, we reverse the trial court’s contrary holding.

Judgment reversed.

Barnes, P. J., and Blackwell, J., concur.

       OCGA § 16-6-2 (a) (2).

       OCGA § 16-6-4 (c).

       OCGA § 16-6-4 (a).

       OCGA § 16-6-22.1.

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

       OCGA § 24-3-50; see also State v. Lynch, 286 Ga. 98, 99-100 (1) (686 SE2d 244) (2009); Henry v. State, 295 Ga. App. 758, 759 (673 SE2d 120) (2009).

         See, e.g., Lynch, 286 Ga. at 99; Vergara v. State, 283 Ga. 175,176 (657 SE2d 863) (2008).

        See, e.g., Lynch, 286 Ga. at 100; Jackson v. State, 280 Ga. App. 716, 720 (2) (634 SE2d 846) (2006).

        Lynch, 286 Ga. at 99 (citation and punctuation omitted).

        Henry, 295 Ga. App. at 761; see also Lyons v. State, 244 Ga. App. 658, 658-59 (535 SE2d 841) (2000) (noting that because the trial court sits as the trier of fact, “its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them”).

        See, e.g., Lynch, 286 Ga. at 99 (1); Jackson, 280 Ga. App. at 720 (2).

        Lyons, 244 Ga. App. at 659 (citation omitted) (emphasis supplied); see Vergara, 283 Ga. at 178 (1) (same); see also State v. Roberts, 273 Ga. 514, 514-15 (1) (543 SE2d 725) (2001) (“[T]he videotape ... is demonstrative objective proof of the circumstances surrounding [the] inculpatory statement. Therefore, the question presented for resolution is whether the trial court erred in its legal conclusion that, under this undisputed evidence, [the accused’s] confession was inadmissible because it did not satisfy the requirements of OCGA § 24-3-50.”),
        overruled, on other grounds by Vergara, 283 Ga. at 177-78 (1).

        See, e.g., Vergara, 283 Ga. at 177; Henry, 295 Ga. App. at 761.

        See, e.g., Jackson, 280 Ga. App. at 720 (2); Jones v. State, 270 Ga. App. 233, 237 (1) (b) (606 SE2d 288) (2004); see also Canty v. State, 286 Ga. 608, 610-11 (690 SE2d 609) (2010) (holding confession involuntary when accused told that confession could result in a shorter term); State v. Ritter, 268 Ga. 108, 110 (1) (485 SE2d 492) (1997) (holding that officer’s misrepresentation that victim was still alive was an implied promise that accused would not be charged with murder, giving “the hope that he faced a lighter possible criminal penalty than he actually was facing” (footnote omitted)).

        See, e.g., Boone v. State, 293 Ga. App. 654, 657-58 (3) (667 SE2d 880) (2008) (“A promise not involving the sentence or charge at issue is one promising a collateral benefit, and such a promise does not make an otherwise admissible statement inadmissible.”); Jackson, 280 Ga. App. at 720 (2) (noting that because “hope of benefit” generally means the reward of a lighter sentence, “confessions made under a promise of collateral benefit are not for that reason excludable” (citation, footnote and punctuation omitted)); see also OCGA § 24-3-51 (“The fact that a confession has been made under a spiritual exhortation, a promise of secrecy, or a promise of collateral benefit shall not exclude it.”).

        See Brown v. State, 278 Ga. 724, 727-28 (3) (609 SE2d 312) (2004) (holding that repeated statements that accused would “soon be free to go” was collateral); In the Interest of D. T, 294 Ga. App. 486, 489 (2) (669 SE2d 471) (2008) (holding that officer’s promise that he “would see about getting the defendant home once defendant made a statement” was collateral); Jones, 270 Ga. App. at 237 (1) (b) (holding that allowing accused to go home after confession and stating that “[w]hen you leave out of here and you tell us about it, you’re going to feel a lot better,” was collateral); Smith v. State, 269 Ga. App. 133, 140 (3) (603 SE2d 445) (2004) (holding that, after accused told detective that he “just wanted to go home,” detective’s reply of “let’s straighten this out and we’ll see about getting you home” was collateral); accord Light v. State, 20 So3d 939, 940-41 (Fla. Dist. Ct. App. 2009) (officer’s repeated statements that suspect could go home after interview no matter what suspect said did not mean suspect would not be arrested or prosecuted). But cf. Richardson v. State, 265 Ga. App. 711, 712, 713-16 (1) (595 SE2d 565) (2004) (holding that, after accused specifically asked if officer planned to arrest, statement that officer would “see how the interview went before a decision was made as to whether or not [accused] would be taken into custody” was improper when officer already had warrants and intended to arrest).

        See Valentine v. State, 289 Ga. App. 60, 62 (2) (656 SE2d 208) (2007) (“Even if we assume that [the] statements offer[ed] the hope of a lighter sentence, .... any hope of benefit was dispelled by the officer’s statement that he had no influence over [the accused’s] possible punishment.”); see also Stephens v. State, 164 Ga. App. 398, 399 (3) (297 SE2d 90) (1982) (holding that officer’s statement that accused was “helping himself by telling the truth, that judges love to hear that defendants helped the police, and that... it also showed that he cooperated . . . along with repeated statements that the officer could not promise any help” did not fall within “hope of benefit”).

        See In the Interest ofD. T, 294 Ga. App. at 489 (2); Brown, 278 Ga. at 727-28 (3); Jones, 270 Ga. App. at 237 (1); Smith, 269 Ga. App. at 140 (3); accord, Light, 20 So3d at 940 (“[T]he trial court did not err in holding it was unreasonable for [the suspect] to take [the statement that he could go home no matter what he said] as a promise of no prosecution.”).

        See Vergara, 283 Ga. at 178 (1); Lyons, 244 Ga. App. at 659.

        See, e.g., Colorado v. Connelly, 479 U. S. 157, 163-67 (II) (107 SC 515, 93 LE2d 473) (1986) (“Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.” (footnote omitted)); United States v. Prince, 157 FSupp.2d 316, 328-29 (3) (III) (B) (D. Del. 2001) (“[T]he voluntariness of a statement does not depend solely upon whether it was made in response to promises .... [T]he key inquiry is whether the alleged promise actually induced the statement that the defendant seeks to suppress.” (citation omitted)); Ex Parte Gaddy, 698 So2d 1150, 1154 (Ala. 1997) (“One statement by an interrogator can render a confession involuntary, if that statement actually induces or causes the defendant to confess.” (citation omitted)); Craig v. State, 719 So2d 274, 277 (I) (Ala. Crim. App. 1998) (“ ‘The key to our analysis of promises or inducements is to determine whether those promises or inducements actually caused the confession, not just whether the promises or inducements were made by the officer.’ ” (quoting & Parte Gaddy, 698 So2d at 1154)); Blake v. State, 972 So2d 839, 844 (II) (A) (Fla. 2007) (“[A] promise alone is not sufficient to render a confession involuntary. There must also be a causal connection between the police conduct and the confession.” (citation omitted)); Light, 20 So3d at 941 (requiring a clear causal connection between the investigator’s statement and the accused’s confession); Stokes v. State, 423 A2d 552, 555 (Md. 1980) (“[Tlhere must also be sufficient evidence that the confession was actually induced by a threat or promise!.]” (citation and emphasis omitted)); State v. Unga, 196 P3d 645, 102 (10) (Wash. 2008) (“[T]here must be a direct causal relationship between the promise and the confession.” (citation omitted)).

        United States v. Morris, 491 FSupp. 226, 230 (S.D. Ga. 1980) (citation and punctuation omitted).

        See Schneckloth v. Bustamonte, 412 U. S. 218, 226 (II) (A) (93 SC 2041, 36 LE2d 854) (1973).

        Id. (citing numerous prior cases and noting that “[t]he significant fact about all of these decisions is that none of them turned on the presence or absence of a single controlling criterion; each reflected a careful scrutiny of all the surrounding circumstances”); see also Inman v. State, 295 Ga. App. 461, 462 (1) (671 SE2d 921) (2009) (analyzing accused’s independent knowledge of constitutional rights, the lack of threats by law enforcement, accused’s mental state, accused’s understanding of rights, the length of interview, lack of physical punishment, accused’s level of education, and accused’s intelligence level); State v. Johnson, 273 Ga. App. 324, 326 (615 SE2d 163) (2005) (“[C]ourts must resolve questions regarding the voluntariness of a confession on a case by case basis.” (footnote omitted)); Pless v. State, 142 Ga. App. 594, 597 (236 SE2d 842) (1977) (noting that “legality, duration, and conditions of detention are relevant” to determining voluntariness).

        See Riley v. State, 237 Ga. 124,128 (226 SE2d 922) (1976) (adopting the nine-factor test used by the United States Court of Appeals for the Fifth Circuit). The nine factors are as follows: (1) accused’s age; (2) accused’s education level; (3) accused’s knowledge of the charges and his constitutional rights; (4) whether accused was allowed to communicate with others; (5) whether interrogation comes before or after formal charges; (6) interrogation methods; (7) length of interrogation; (8) whether accused refused to give prior statements; and (9) whether accused later repudiated statement. Id.

        Vergara, 283 Ga. at 177-78 (1).

        See discussion supra.

        See Stringer v. State, 285 Ga. 842, 845 (3) (684 SE2d 590) (2009) (holding that officer’s admonition to tell the truth by saying “I’m trying to help you” did not require exclusion of confession); Cooper v. State, 256 Ga. 234, 235 (2) (347 SE2d 553) (1986) (holding that officer’s statement that he wanted to help accused did not render confession involuntary); Caffo v. State, 247 Ga. 751, 756 (3) (279 SE2d 678) (1981) (holding that “advice from officer that the suspect will feel better if he tells the truth” and admonition that “it is always best to tell the truth” did not render confession inadmissible (citation and punctuation omitted)); Dexter v. State, 293 Ga. App. 388, 391-92 (667 SE2d 172) (2008) (“Even an emotional appeal does not make a confession involuntary as long as the means employed are not calculated to procure an untrue statement.” (footnote omitted)).

        See supra note 20.


author: BARNES, Presiding Judge.

text:
    A10A2237.
    POWELL v. THE STATE.
    (707 SE2d 877)
   BARNES, Presiding Judge.

Following the denial of his motion for new trial, Anthony Powell appeals his conviction for aggravated assault. He contends that the trial court erred in admitting bad character evidence, and also in allowing the State to make a “religious-based” argument in its closing. Following our review, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that Powell was present during an altercation between the victim and Powell’s brother-in-law at the victim’s house. Powell had gone to the victim’s house to confront the victim’s wife for allegedly taking money from Powell’s sister. His brother-in-law and the victim got into a fistfight, and after the altercation ended, Powell shot the victim in the shoulder.

Decided March 16, 2011.

James C. Garner, for appellant.

Craig Fraser, District Attorney, Chad A. Pritchett, Assistant District Attorney, for appellee.

1. Powell first alleges that the trial court erred in admitting testimony from the victim’s wife that Powell said he was “geeked-up” at the time of the altercation. He argues that such evidence improperly placed his character in issue, thereby prejudicing him. Powell, however, failed to object to the evidence at trial on this ground, merely objecting when the State asked the witness what the phrase meant; therefore, he has waived appellate review of the issue. Castillo v. State, 281 Ga. 579, 584 (6) (642 SE2d 8) (2007).

2. Powell next asserts as error the State’s religious-based argument in its closing. During its closing argument, the State implored:

[L]et me call your attention to Matthew, Mark, Luke and John, four books of the Bible, first four books in the New Testament. They all have a little minor inconsistency between each of them, here and there, and that’s because of perspective. But what do we call those four books of the Bible, ladies and gentlemen? We call them the gospel truth, ladies and gentlemen, the gospel truth.

“References to religion that invite jurors to base their verdict on matters not in evidence should be avoided in prosecutorial argument.” (Citation omitted.) Morgan v. State, 276 Ga. 72, 74 (2) (575 SE2d 468) (2003). But, the biblical reference at issue here did not invite jurors to base their verdict on extraneous matters, or exhort jurors to reach a verdict on religious grounds, instead the prosecutor used the references to encourage jurors to overlook inconsistencies in the evidence. Accordingly, we find no basis for reversal in this case. See Walker v. State, 282 Ga. 774, 778 (9) (653 SE2d 439) (2007).

Judgment affirmed.

Blackwell and Dillard, JJ., concur.


text:
    A10A2299.
    SATURDAY ENTERPRISES, INC. et al. v. CITIZENS BANK & TRUST OF WEST GEORGIA.
    (707 SE2d 875)
   Doyle, Judge.

This appeal arises from the trial court’s grant of summary judgment to Citizens Bank and Trust of West Georgia (“CBT”) in a case involving a dispute over a promissory note in the amount of $10,556,250 executed by Senoia Development, LLC, and guaranteed by individuals Jeffery B. Saturday, Tarik Glenn, Ryan Diem, Paul W. Kite, as well as Saturday Enterprises, Inc., Glenn Enterprises, LLC, Diem Enterprises, LLC, and PK Senoia Holdings, LLC (collectively “the Appellants”). The Appellants contend that the trial court erred by granting CBT’s motion for partial summary judgment and by denying the Appellants’ motion for summary judgment because the trial court failed to provide written notice of the hearing five days in advance pursuant to OCGA § 9-11-6 (d). Because the language of the statute plainly states its requirement, we agree and reverse.

OCGA § 9-11-6 (d) provides that

[a] written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by this chapter or by order of the court. . . ,

The Appellants contend that written notice of the hearing did not meet the requirements set forth in OCGA § 9-11-6 (d) because the notice was mailed on March 8, 2010, only three days prior to the March 11, 2010 hearing, and the address on the envelope was partially obscured, preventing delivery of the notice until April 22, 2010. CBT contends that the summary judgment hearing was originally calendared for February 4, 2010, at which time the Appellants’ attorney was directly notified by the trial court via teleconference that the hearing was going to be reset for March 11, 2010. The attorney for the Appellants disputes in an affidavit to the trial court that he received notice of the hearing, stating that, “[Appellants] did not discover that a hearing had been held until March 30, 2010, when Raley & Sandifer received an Order dated March 18, 2010, granting [CBT’s] motion,” and that “[Appellants] and counsel were completely unaware of the March 11, 2010, hearing date.” Even assuming that the trial court provided oral notice of the hearing during the teleconference, CBT provides no citation of authority in support of its argument that this method of notification satisfies the requirements of OCGA § 9-11-6 (d).

Decided March 16, 2011.

Raley & Sandifer, G. Brian Raley, for appellants.

Smith, Diment & Conerly, Joseph N. Smith, Randall C. Parian, for appellee.

Service of notice pursuant to OCGA § 9-11-6 (d) is controlled by OCGA § 9-11-5 (b), which provides that service upon a party or his attorney may be accomplished “by delivering a copy to the person to be served or by mailing it to the person to be served at the person’s last known address. . . .” This Court previously has held that other forms of service, such as publication, are not sufficient to meet the requirements of OCGA § 9-11-6 (d). On the face of the record, it is clear that delivery of a hard copy of the notice pursuant to OCGA § 9-11-6 (d) was not accomplished, and accordingly, we reverse the trial court’s grant of summary judgment to CBT. Although the trial court’s denial of the Appellants’ motion for reconsideration implicitly found that the Appellants had received actual notice via the teleconference on February 4, this is simply not sufficient pursuant to the plain language of the statute.

Based on this holding, we do not address the Appellants’ second enumeration of error.

Judgment reversed.

Ellington, C. J., and Andrews, J., concur.

       Senoia Development is not a party to this appeal.

       (Emphasis supplied.)

       The calendar for the February 4, 2010 hearing appears to have set the case for continuance from the peremptory calendar and does not appear to have scheduled the case for a hearing on the summary judgment motions.

       See King v. Bd. of Regents &c. of Ga., 215 Ga. App. 570, 571 (451 SE2d 482) (1994).

       See, e.g., TMS Ins. Agency, Inc. v. Galloway, 205 Ga. App. 896, 897-898 (424 SE2d 71) (1992).

       See Goodwin v. Richmond, 182 Ga. App. 745, 745-746 (2) (356 SE2d 888) (1987) (reversing grant of summary judgment for lack of proper notice, holding that error was not harmless because the respondent was deprived of the right to file affidavits up to one day prior to the hearing as allowed by OCGA § 9-11-6 (d)). Cf. Srader v. Midkiff, 303 Ga. App. 514, 516-517 (4) (693 SE2d 856) (2010) (reversing order for attorney fees for lack of proper notice); Glass v. Glover, 241 Ga. App. 838, 839 (528 SE2d 262) (2000) (same); Dixon v. McClain, 204 Ga. App. 531, 531-532 (1) (420 SE2d 66) (1992) (harmless error analysis not applicable if a trial court fails to hold summary judgment hearing when requested by the parties).


author: Ellington, Chief Judge.

text:
    A07A1015.
    A07A1016.
    A07A1017.
    A07A1018.
    STATE OF GEORGIA v. DAMANI et al. ULTRA TELECOM, INC. v. STATE OF GEORGIA. ALLSTAR, INC. et al. v. STATE OF GEORGIA. JACKSON v. STATE OF GEORGIA.
    (708 SE2d 13)
   Ellington, Chief Judge.

The Supreme Court of Georgia reversed our decision in these consolidated cases, finding that “the seven video game machines at issue” were not illegal gambling devices subject to condemnation by the State, rejecting our interpretation of the phrase “a single play” pertaining to the noncash redemption options set forth in OCGA § 16-12-35 following the legislature’s intervening act of providing a definition of that phrase. Ultra Telecom v. State of Ga., 288 Ga. 65 (701 SE2d 144) (2010). The Supreme Court concluded that,

[bjecause the machines at issue in these appeals meet the definition in OCGA § 16-12-35 for coin operated games or devices designed and manufactured for bona fide amusement purposes only, the Court of Appeals erred by reversing the trial court’s holding that these machines are not subject to condemnation by the State.

Id. at 72 (4). Accordingly, our ruling is vacated and the judgment of the Supreme Court is made the judgment of this Court.

The Supreme Court did not address our holding, however, with respect to the remaining four devices that were condemned by the trial court. We conclude, therefore, that the superior court’s decision that the devices were subject to condemnation under OCGA § 16-12-20 (2) (A) was not clearly erroneous as the record evidence supports the court’s detailed factual findings that each device was a “contrivance which for a consideration affords the player an opportunity to obtain money or other thing of value, the award of which is determined by chance even though accompanied by some skill, whether or not the prize is automatically paid by contrivance,” and, hence, an illegal gambling device. (Emphasis supplied.) Id. See Ultra Telecom v. State of Ga., 288 Ga. at 70 (3); State of Ga. v. Old South Amusements, 275 Ga. 274, 275 (1) (564 SE2d 710) (2002).

Judgment affirmed.

Andrews and Adams, JJ., concur.

Decided February 21, 2011

Reconsideration denied March 17, 2011.

Patrick H. Head, District Attorney, Amelia G. Pray, Christopher W. Timmons, Samuel W. Lengen, Assistant District Attorneys, for appellant.

Spix & Krupp, Mark V Spix, Begner & Begner, Alan I. Begner, Wimberly, Lawson, Steckel, Schneider & Stine, Les A. Schneider, Paul Oliver, Jacqueline D. Joslyn, Rhonda L. Klein, Balch & Bingham, Michael J. Bowers, Manchel, Wiggins & Kaye, Howard J. Manchel, for appellees.

        State of Ga. v. Damani, 299 Ga. App. 112 (681 SE2d 635) (2009).

       See OCGA § 48-17-1 (7.1).


text:
    A10A1714.
    KILLEARN, INC. et al. v. SOUTHERN STRUCTURAL, INC.
    (707 SE2d 882)
   Doyle, Judge.

In 2004, Southern Structural, Inc. (“Southern”) filed various breach of contract and fraud claims against Killearn, Inc. (“Kil-learn”), Majestic Residential, LLC, and various individual defendants. One of these defendants, Drayton Baker, was a resident of Cobb County, Georgia, but the other defendants resided in Henry County or Newton County. After a nine-day trial, the Cobb County jury awarded Southern $532,510.55 against Killearn on the basis that it committed fraud and $790,330.55 against Majestic Residential, LLC, for breach of contract; however, the jury found that Southern had failed to pierce the corporate veil as to the individual defendants, including Baker, the only resident defendant.

Killearn made an oral motion to transfer venue, followed by a written motion. Southern opposed the motion, arguing that the trial court should not retroactively apply OCGA § 9-10-31 (d) in this case because it would affect the parties’ substantive rights or, alternatively, that OCGA § 9-10-31 (d) is unconstitutional. The trial court originally denied the motion without explanation, and this Court remanded the case, instructing the trial court to enter an order providing further explanation for its ruling.

On remand, the trial court explained that it would not retroactively apply OCGA § 9-10-31 (d) because doing so would affect the substantive, rather than procedural, rights of the parties by nullifying a jury verdict and, thus, had denied Killearn’s motion to transfer venue pursuant to OCGA § 9-10-31 (d). Killearn now appeals.

Previously, Georgia followed a common law version of the doctrine of vanishing venue, which provided that in a suit involving both resident and nonresident defendants, a trial court was divested of venue of any nonresident defendants in the event that no verdict was returned against the resident defendants. In that instance, the trial court lost jurisdiction to enter a judgment against the nonresident defendants. In 1999, the Georgia Legislature amended OCGA § 9-10-31 (b) “to prevent the vanishing venue loophole by allowing for a pre-trial determination of venue.” Thus, at the time this case was filed in 2004, vanishing venue was not the applicable law of this State.

As part of the Tort Reform Act of 2005, however, the Legislature statutorily revived the rule of vanishing venue under OCGA § 9-10-31 (d). The statute now provides:

If all defendants who reside in the county in which an action is pending are discharged from liability before or upon the return of a verdict by the jury or the court hearing the case without a jury, a nonresident defendant may require that the case be transferred to a county and court in which venue would otherwise be proper. If venue would be proper in more than one county, the plaintiff may elect from among the counties in which venue is proper the county and the court in which the action shall proceed.

On appeal, Killearn argues that the trial court erred by refusing to retroactively apply OCGA § 9-10-31 (d) and grant its post-judgment motion to transfer and that the trial court erred by denying Killearn’s motion for directed verdict on the basis that Southern failed to establish evidence of fraud. For the following reasons, we reverse.

1. Killearn argues that the trial court erred by denying its post-judgment motion to transfer venue pursuant to OCGA § 9-10-31 (d) when it determined that the amended statute should not be retroactively applied to this case. We agree and reverse.

The denial of a motion to transfer is reviewed for an abuse of discretion, . . . and we will affirm the trial court’s findings on disputed factual questions relating to venue if there is any evidence to support them. But we review de novo the trial court’s application of the law to undisputed facts.

The claims asserted by Southern arose and Southern filed this case between 1999 and 2005 when the rule of vanishing venue was not in effect. Our Supreme Court previously has held that OCGA § 9-10-31.1 (a), which governs forum non conveniens and was enacted at the same time as OCGA § 9-10-31 (d), applies retroactively. The enacting legislation for both OCGA § 9-10-31 (d) and OCGA § 9-10-31.1 (a) specifically states that they “would apply retroactively unless the application would be unconstitutional.” Normally, venue provisions such as OCGA § 9-10-31 (d) are considered procedural, not substantive, in nature and courts generally apply them retroactively.

Substantive law is that law which creates rights, duties, and obligations. Procedural law is that law which prescribes the methods of enforcement of rights, duties, and obligations. It has been held that statutes affecting where an action may be tried are procedural and not substantive in nature.

For example, in criminal proceedings, our Supreme Court has explained that a defendant may be retried in the event the State fails to prove venue, even though venue “is an essential element in proving that one is guilty of the crime charged” because “Lvjenue is wholly neutral; it is a question of procedure, more than anything else, and it does not either prove or disprove the guilt of the accused.” Similarly here, although retroactive application of OCGA § 9-10-31 (d) will extend the time and resources that the parties expend while litigating the issues at hand, the parties still have the right to a jury trial. Thus, the trial court erred by denying Killearn’s post-verdict motion to transfer venue on the basis that the statute violated the substantive rights of the parties and by failing to apply the statute retroactively.

2. Southern contends that OCGA § 9-10-31 (d) is unconstitutional.

“For a constitutional issue to be reviewed by an appellate court, the constitutional objection must be raised in writing at the earliest opportunity before the trial court and then ruled upon by the trial court.” The trial court failed to rule on the constitutionality of OCGA § 9-10-31 (d) when Southern raised the issue below, and we are therefore precluded from reviewing the issue.

Decided Maroh 17, 2011.

Power, Jaugstetter & Futch, Patrick D. Jaugstetter, Lauren A. Thompson, for appellants.

Cooper, Jones & Cooper, Lance A. Cooper, Patrick A. Dawson, for appellee.

3. Based on our holding in Division 1, we do not reach Killearn’s second enumeration of error.

Judgment reversed.

Ellington, C. J., and Andrews, J., concur.

       See Robinson v. Star Gas of Hawkinsville, 243 Ga. App. 112 (533 SE2d 97) (2000).

       (Punctuation omitted.) Nalley v. Baldwin, 261 Ga. App. 713 (583 SE2d 544) (2003). See Ga. L. 1999, p. 734, § 2.

       (Emphasis supplied.) OCGA § 9-10-31 (d).

       (Citations omitted.) HD Supply v. Garger, 299 Ga. App. 751 (683 SE2d 671) (2009).

        EHCA Cartersville v. Turner, 280 Ga. 333, 337 (3) (626 SE2d 482) (2006). See also Ga. L. 2005, pp. 1, 18, § 15. We do not reach the issue of constitutionality, as explained in Division 2 of this opinion.

       See EHCA Cartersville, 280 Ga. at 337 (3).

       (Punctuation omitted.) Id.

       (Punctuation omitted.) Jones v. State, 272 Ga. 900, 901 (2) (537 SE2d 80) (2000).

       Id. at 904 (4).

       (Punctuation omitted.) Brunswick Landing, LLC u. Glynn County, 301 Ga. App. 288, 295 (4) (b) (687 SE2d 271) (2009). See also City of Decatur v. DeKalb County, 284 Ga. 434, 438 (2) (668 SE2d 247) (2008) (“Because . . . the trial court did not specifically or distinctly rule upon the constitutional issue, . . . the constitutional issue is not ripe for review . . .”).