text:
    A11A2403.
    MEINHARDT v. CHRISTIANSON et al.
    (725 SE2d 828)
   Adams, Judge.

Plaintiff Kenneth Meinhardt filed suit seeking, among other things, specific performance of an oral agreement to purchase .23 acres of real estate from his neighbor Vickie Christianson and injunctive relief barring interference with his use of the subject property as a driveway. The trial court denied Meinhardt’s request for an interlocutory injunction regarding the .23-acre tract. And, in an earlier appeal, this Court held the trial court correctly concluded that sale of the property was barred by Christianson’s ex-husband’s right of first refusal on any sale of the property. Meinhardt v. Christianson, 289 Ga. App. 238 (656 SE2d 568) (2008). But this Court also held that the trial court relied on an erroneous legal conclusion when addressing the alternate ground that Meinhardt acquired a parol license to use the property, which became an irrevocable easement once he made improvements. Id. We therefore vacated the trial court’s denial of Meinhardt’s motion for interlocutory injunction and remanded the case for further proceedings consistent with the opinion. Id. Following remand, the trial court conducted another evidentiary hearing and found that the parties never agreed to a parol license, rather, they only made an oral contract for the sale of land, which, as shown above, was not enforceable. The court also found that, even if there was a parol license, Meinhardt did not acquire an irrevocable easement because his actions only “amounted to ordinary maintenance for use of the road.” Meinhardt now appeals that ruling.

The facts from the first hearing are set out in our earlier opinion from which this summary is taken. In April 2003, Meinhardt and Christianson entered into an oral agreement to swap .23 acres of her property in exchange for $1,000, a .23-acre parcel of Meinhardt’s property, and Meinhardt’s agreement to build a fence for her. Meinhardt at 238-239. Thereafter, Meinhardt “had both properties surveyed, orally transferred his .23-acre parcel to Christianson, gave her a check for $1,000 (which she cashed), and began building the fence along the northern side of Christianson’s property as promised.” Id. at 239. However, no closing was conducted, and the two parties did not exchange deeds to the two parcels. Id.

When Christianson’s ex-husband, Russell Tillman, who had a right of first refusal on any sale of the property by Christianson, became aware of the agreement, he refused to allow the sale to proceed. Meinhardt at 239.

Nevertheless, Meinhardt continued to use the property for nearly three more years. In fact, in 2005, Meinhardt brought in a backhoe and fill dirt to improve the driveway on the property acquired from Christianson and thereby provide better access to his winery from the public road.

Id. In August 2006, however, Christianson’s attorney sent Meinhardt a $1,000 check as a return of his payment and demanded that he cease using the property, thereby prompting Meinhardt’s suit. Id.

1. Meinhardt first contends the trial court erred on remand by relitigating matters conclusively established by this Court in the first appeal. He contends the earlier appeal conclusively established that Christianson granted him a parol license to use her .23-acre parcel and that the license ripened into an irrevocable easement as a result of his incurring expense maintaining and improving the way.

The prior appeal considered the denial of an interlocutory injunction, not a final decision on the merits. Meinhardt at 239. Thus this Court had to determine whether the trial court abused its discretion when considering whether it should “preserve the status quo, as well as balance the conveniences of the parties, pending a final adjudication of the case. [Cit.]” Id. at 240 (2). And, “because the trial court’s [original] order did not discuss weighing the equities in this matter to determine whether to preserve the status quo,” this Court had to “assume for the sake of our inquiry that the trial court denied Meinhardt’s motion for interlocutory injunction on the ground that it believed that he was unlikely to prevail on the merits.” Id. at 241 (2). We then held that because Christianson’s ex-husband’s right of first refusal on any sale of Christianson’s property applied to the sale of the .23-acre parcel, “the trial court correctly concluded that Meinhardt was unlikely to prevail on the issue of whether the property was legally conveyed to him.” Id. at 242 (2) (a).

We next found a legal error in the court’s analysis of whether Meinhardt was likely to prevail on his claim of a parol license that ripened into an easement. Meinhardt at 243 (2) (b). In so doing, we made the primary statement upon which Meinhardt relies:

Meinhardt arguably obtained at least a license to use the property when Christianson attempted to convey it to him. Once Meinhardt paid Christianson $1,000, began using the property, and incurred additional expense in maintaining and improving it, the parol license became an irrevocable easement running with the land. [Cit.] Moreover, Christian-son’s grant of a license to Meinhardt, and his subsequent procurement of an irrevocable easement, was not the legal equivalent of an attempted sale of the property so as to trigger Tillman’s right of first refusal.

Id.

Meinhardt contends that based on the above language, the prior appeal established as a matter of fact that he obtained a license and it ripened into an easement. But, as shown by the word “arguably,” this Court stopped short of such a finding. Moreover, the posture of the case shows that the statement was simply a part of the analysis of the facts as presented to the lower court at an interlocutory determination of whether Meinhardt was likely to prevail if the case proceeded to a final resolution on the merits, which might involve the presentation of additional evidence. See generally Milton Frank Allen Publications v. Ga. Assn. of Petroleum Retailers, 223 Ga. 784, 788 (158 SE2d 248) (1967) (“The purpose of an interlocutory injunction is preliminary and preparatory; it looks to a future final hearing, and while contemplating what the result of that hearing may be, it does not settle what it shall be.”) (Emphasis in original.).

Thus, Meinhardt is incorrect that the prior appeal established as a matter of fact that he received a parol license that ripened into an irrevocable easement.

2. Next, Meinhardt contends the trial court erred as a matter of law by finding that Christianson did not grant him a parol license to use the .23-acre tract.

(a) As a preliminary matter, we again need to address the procedural posture of this appeal. As has been shown, following remand the court conducted a second hearing. The rule nisi states that the hearing was “for the purposes of considering, inter alia, whether or not [Meinhardt] was granted a parol license to use the property of [Christianson]”; the topic of interlocutory injunctions is not mentioned. At the hearing, although Meinhardt’s attorney initially stated that he did not understand why a hearing was necessary, ultimately, the court indicated that it was going to have an evidentiary hearing, following which it would issue an order, and it invited the parties to present whatever evidence they desired. Meinhardt did not object to this procedure, nor has he raised the issue on appeal; in fact, Meinhardt characterizes the appeal as one following “a non-jury trial of disputed material facts.” “[WJhere there is notice of an interlocutory hearing, a tried court may reach a final determination of the issues if the parties do not object or have acquiesced.” Dortch v. Atlanta Journal, 261 Ga. 350, 351 (1) (405 SE2d 43) (1991). Furthermore, the court did not indicate in its order that it was only addressing Meinhardt’s motion for interlocutory injunction. Rather, read as a whole, it can only be seen as a final order regarding Meinhardt’s claims relative to Christianson. We therefore conclude that this is an appeal of a final order on the merits following a bench trial. Cf. Ga. Canoeing Assn. v. Henry, 263 Ga. 77, 78 (428 SE2d 336) (1993) (at bench trial on the merits, trial court may consider evidence heard in connection with interlocutory injunction and any additional evidence that the parties wish to present). We therefore review any disputed material facts under the clearly erroneous or any evidence standard, although we review assertions of legal error de novo. OCGA § 9-11-52 (a); Glover v. Ware, 236 Ga. App. 40, 44 (3) (510 SE2d 895) (1999). Both parties agree with this standard of review.

(b) Meinhardt contends the trial court erred in making this factual finding:

The record does not show that Meinhardt and Christianson intended to establish a license, or that Christianson granted an express license, at the time they entered into the parol contract. Indeed, the relief that Meinhardt seeks, specific performance of the parol contract by requiring Christianson to execute and deliver a deed conveying [the .23 acre parcel] in fee simple to Meinhardt, indicates that the transaction was a contract for the sale of land, not the grant of a license.

Meinhardt first argues that Christianson admitted that she granted him the right to use the relevant property to access his property. At the first hearing on the interlocutory injunction, Chris-tianson was present but did not testify. But her attorney made the following statement during argument in open court:

My client does contend . . . that there was no contract for this property. Obviously, she did allow Mr. Meinhardt to use the property. But the property was never conveyed. She never entered into a contract to do that. She never went to a closing. She never signed any document. . . .

Meinhardt argues that the emphasized statement was an admission in judicio. But, taken in context, the statement could be read to mean that Christianson allowed Meinhardt to use the property in connection with the attempted sale, which was never consummated. See Morgan v. Howard, 285 Ga. 512, 513 (3) (678 SE2d 882) (2009) (alleged admissions in judicio may be read in context to determine meaning). Therefore the trial court had a basis to consider other evidence on this question.

Meinhardt next argues that the trial court was required to conclude that, given the express intent of the parties to transfer ownership of the .23-acre parcel, Christianson necessarily impliedly intended to grant to him “authority to do a particular act or series of acts on land of another without possessing] any estate or interest therein,” thereby creating a license. But we conclude the trial court’s primary ruling was not clearly erroneous. It does not necessarily follow that a person has granted a second person a parol license to use property just because the first person attempted to sell that property to the second person and let them use it in contemplation of that transaction. Moreover, although Meinhardt contends that in addition to the $1,000 payment and building a fence, he agreed to transfer .23 acres of his property to Christianson, he never did so. Christianson testified “What he told me, he was going to do all the paperwork, everything was going to be fine.” She also testified that the purpose of the $1,000 was as a binder on the sale transaction, that she received paperwork, and there were discussions about a closing. But the closing never occurred. And she testified that she did not allow him to use the driveway thereafter; rather, Meinhardt “just did.” Thus, the trial court had some evidence as a basis for its conclusion that no parol license was ever granted.

Decided March 9, 2012.

Edenfield, Cox, Bruce & Classens, Gerald M. Edenfield, Charles P. Aaron, for appellant.

Lovett Bennett, Jr., Samantha F. Jacobs, for appellees.

Although Meinhardt presented facts showing that Christianson cashed the $1,000 check in April 2003 and did not try to return it until August 2006; that he continued to use the driveway after she took the money; that she never maintained the road whereas he did; and that she knew he had been using the way continuously ever since, none of these facts mandates the conclusion that she granted him a license to use the way separate from the proposed sales transaction.

Because there was some evidence to show that Christianson never agreed to a parol license to use the way, the trial court’s order must be affirmed, and we need not reach Meinhardt’s argument that the trial court erred by not finding that the license ripened into an easement.'

Judgment affirmed.

Barnes, B J., and Blackwell, J., concur.

       Meinhardt also sought relief relative to a second easement over property owned by Robert Reed. That easement is not a subject of the present appeal.

        Forsyth County v. Waterscape Svcs., 303 Ga. App. 623, 634 (3) (694 SE2d 102) (2010).


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A12A0336.
    KORPONAI v. THE STATE.
    (725 SE2d 832)
   Andrews, Judge.

On appeal from his conviction for less-safe DUI, Sandor Kor-ponai argues that the trial court erred when it charged the jury on implied consent and that trial counsel was ineffective. We find no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the record shows that on the early morning of May 30, 2008, Korponai failed to negotiate a turn and crashed his truck through a fence onto private property. The owner, who was awakened by the crash, went out to the scene, where Korponai approached him and asked for help. Korponai smelled strongly of alcohol, his speech was slurred, and he had difficulty staying on his feet and walking back to his truck. The owner called 911.

Three officers responded to the scene. The first officer testified that Korponai, who smelled of alcohol and was staggering, refused medical attention and told him that he had fallen asleep at the wheel. When the officer asked Korponai to walk up a hill back to the truck, Korponai tried to do so but fell twice. When Korponai refused an alco-sensor breath test, the officer arrested him. The officer testified that he did not administer any field sobriety tests because Korponai had already fallen twice and could not have taken the tests safely. After hearing the implied consent warning, Korponai fell asleep on the way back to the police station, where he refused to take an Intoxilyzer breath test.

Korponai took the stand on his own behalf, testifying that he had not been drinking, that his truck had rolled over, and that the terrain had made it difficult to walk to the police car. He also testified that he never drinks and drives. On cross-examination, the State introduced a 2005 DUI conviction from Virginia. After the trial court’s charge to the jury, Korponai objected only to the exclusion of a charge on accident.

A jury found Korponai guilty of less-safe DUI and failure to maintain lane, which counts the trial court merged at sentencing. The jury acquitted him of an open container violation.

1. The evidence outlined above was sufficient to sustain Kor-ponai’s conviction. See OCGA § 40-6-391 (a) (1) (defining less-safe DUI); Jackson, supra.

2. Korponai first argues that the trial court erred when it delivered the pattern charge on implied consent because a portion of that charge amounts to an illegal comment on the evidence (see OCGA § 17-8-57). We disagree.

The record shows that the trial court charged the jury that a “test or tests shall be, administered at the request of the law enforcement officer who has reasonable grounds to believe” that a person has been driving under the influence. This part of the charge reproduced the language set out in the implied consent statute. See OCGA § 40-5-55 (a).

Korponai did not object to this portion of the charge at trial, and has never challenged the trial court’s ruling below that his refusal to take the tests was properly admitted because the arresting officer had reasonable grounds to believe that he had been driving under the influence. “It [thus] appears that appellant is actually arguing that the trial court ‘gave an incorrect statement of law,’ but couched his enumeration using OCGA § 17-8-57 because appellant failed to object to the charge at his trial.” Vergara v. State, 287 Ga. 194, 197 (2) (695 SE2d 215) (2010). Like the Supreme Court of Georgia, then, “[w]e decline to allow [Korponai] to circumvent the requirements of OCGA § 17-8-58 [concerning a defendant’s duty to object to a charge] with such a maneuver.” Id.

3. Korponai also argues that trial counsel was ineffective when he failed (a) to object to the admission of Korponai’s refusal to take the alco-sensor test; (b) to request a limiting instruction concerning his refusal to take the Intoxilyzer test; (c) to anticipate that direct examination concerning his drinking habits would authorize the State to introduce the prior DUI conviction; and (d) to obtain a copy of the owner’s 911 call before trial. We disagree with these contentions.

To show ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Suggs v. State, 272 Ga. 85, 87-88 (4) (526 SE2d 347) (2000), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The question of ineffectiveness is a mixed one of both law and fact: “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Suggs, 272 Ga. at 88 (4).

(a) Korponai’s refusal to take the alco-sensor test was admissible as circumstantial evidence tending to show that he was impaired. Crusselle v. State, 303 Ga. App. 879, 881 (1) (694 SE2d 707) (2010). It follows that counsel could not have been ineffective for failing to object to the admission of this evidence. Kitchens v. State, 289 Ga. 242, 243 (2) (a) (710 SE2d 551) (2011).

(b) The trial court’s charge stated that the purpose of the tests was to determine the presence of alcohol; that the State must prove “the condition of being under the influence of alcohol to the extent of impairment. . . and while under this condition the intent to drive”; and that

[mjerely showing that the defendant had been drinking or that there was a smell of alcohol on the defendant’s breath or person[,] without proof of the manner of driving or the ability to drive[,] is insufficient to prove that the defendant was guilty of driving under the influence of alcohol.

Because this portion of the charge stated the law accurately, counsel could not have been ineffective for failing to object to it. See Council of Superior Court Judges, Suggested Pattern Jury Instructions, Yol. II: Criminal Cases, §§ 2.84.10, 2.84.20; Stepic v. State, 226 Ga. App. 734, 736 (1) (487 SE2d 643) (1997) (approving instruction emphasizing that the question whether a driver was both under the influence and less safe to drive was for the jury); compare Baird v. State, 260 Ga. App. 661, 663 (1) (580 SE2d 650) (2003) (trial court erred in suggesting to the jury that a refusal to submit to testing “by itself” supported an inference that defendant was driving while impaired). It follows that counsel could not have been ineffective for failing to request any additional instruction.

(c) The trial court found that counsel performed deficiently when he asked Korponai, “[D]o you ever drink and drive?” The trial court also found, however, that the evidence of Korponai’s guilt was so “abundant” that there was no reasonable likelihood of a different outcome had counsel not asked the question opening the door to admission of the 2005 conviction. See Cobb v. State, 283 Ga. 388, 391 (2) (658 SE2d 750) (2008) (defendant need only show “a reasonable probability of a different outcome” as a result of counsel’s deficient performance, and “not that a different outcome would have been certain or even more likely than not”) (citation and punctuation omitted). We agree with the trial court that the evidence against Korponai, including the single-car accident, his smell of alcohol, his slurred speech, his inability to walk to the police car at the scene, and his refusal to take two different tests, was such that he cannot show a reasonable probability that the exclusion of the 2005 DUI conviction would have led to a different outcome. See Thomas v. State, 288 Ga. App. 827, 827-828 (655 SE2d 701) (2007) (evidence of defendant’s impairment including smell of alcohol, admission of drinking, weaving on the road, bloodshot eyes, and difficulty finding the doorhandle of his car was sufficient to justify trial court’s denial of his claim of ineffectiveness concerning counsel’s failure to object to admission of prior DUI conviction).

(d) The record shows that an investigator hired by the defense located the owner who called 911. His statement to the investigator was damaging to Korponai. At the hearing on Korponai’s motion for new trial, counsel testified that after conferring with his client, he decided not to call this witness. At trial, the State called the owner to testify; his 911 call was played for the jury.

Decided March 9, 2012

Harvey S. Wasserman, for appellant.

W. Jeffrey Langley, District Attorney, for appellee.

We see no ground for overturning the trial court’s conclusions that the tape of the owner’s 911 call might have either helped or hurt Korponai’s defense — the former by impeaching the witness concerning the timing of the call, the latter by showing that the owner had the opportunity to observe him at the scene. Counsel cannot be held ineffective for failing to uncover more evidence from or to call a witness whose known statements tended to damage his client’s case. “Decisions regarding which witnesses to present are matters of trial strategy. When founded on legitimate evidentiary concerns, such decisions do not constitute ineffective assistance of counsel.” DeYoung v. State, 268 Ga. 780, 786 (5) (493 SE2d 157) (1997).

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.


author: BARNES, Presiding Judge.

text:
    A11A2293.
    WALKER v. THE STATE.
    (725 SE2d 771)
   BARNES, Presiding Judge.

A jury convicted Charles Brent Walker of perjury. On appeal from the denial of his motion for a new trial, Walker contends that the trial court erred by: (1) denying his motion for a directed verdict of acquittal; (2) reading an unredacted version of the indictment to the jury; (3) allowing the State to prove that he made sworn false statements in a former proceeding through witness testimony; (4) declining to give his requested jury instruction pertaining to how perjury can be proven; (5) concluding that the State had not committed a Brady violation; and (6) concluding that the State had satisfied its statutory discovery obligations. For the reasons set forth below, we affirm.

Construed in favor of the jury’s verdict, the evidence showed that on January 1, 2010, an officer with the City of Rome Police Department stopped Walker for running a red light and issued him a traffic citation. A video camera mounted in the officer’s patrol car recorded the encounter, but not the actual red light violation. The video did show the location of the officer’s patrol car when the violation occurred.

Following his demand for transfer to the superior court for a jury trial, Walker was tried before a jury on the misdemeanor charge of running a red light (the “red light trial”). See OCGA § 40-6-20. The video of the traffic stop was not played for the jury, and the officer who made the stop was the only witness called by the State. The red light trial was not recorded by a court reporter.

After the officer testified that he was stopped in traffic at an intersection when he observed Walker in the lane next to him turn left and run the red light, Walker was sworn in as a witness and denied that the light was red when he turned left. He further testified that the officer had actually been pulling out of a restaurant parking lot behind a white Buick on the opposite side of the intersection at the time he made the left turn. During the course of his testimony, Walker filled in a diagram showing the officer’s patrol car in the parking lot on the other side of the intersection.

Walker’s testimony and the diagram he drew placed the officer’s patrol car at a vantage point from which it would have been impossible for the officer to observe whether the light was red at the time of Walker’s left turn. Walker was unequivocal in his testimony regarding the location of the officer’s patrol car and at one point accused the officer of lying. Following Walker’s testimony, the jury returned a verdict of not guilty.

The judge who presided over the red light trial was concerned that either Walker or the officer had committed perjury, given that their accounts of where the patrol car had been located were so diametrically opposed to one another. At the judge’s request, the State then reviewed the video from the officer’s patrol car, which confirmed the officer’s testimony about his location at the time of the red light violation. Specifically, the video showed that the officer was stopped at the intersection in the inside lane of traffic, next to the center turn lane from which Walker made his left turn. The video also showed the restaurant parking lot as the officer immediately drove through the intersection to pursue Walker’s vehicle and initiate the traffic stop. The video undisputedly revealed that there were no police cars pulling out of the restaurant parking lot at that time.

Walker was indicted and tried before a jury on one count of perjury based on his testimony at the red light trial regarding the location of the officer’s patrol car (the “perjury trial”). Because the red light trial had not been recorded and transcribed by a court reporter, the State relied on the testimony of several witnesses — including the superior court judge who presided over that trial, his judicial assistant, and the two assistant district attorneys who tried that case — to establish the substance of Walker’s testimony under oath. The officer who initiated the traffic stop also testified at the perjury trial that he had been stopped at the intersection in the inside lane of traffic when he observed Walker make a turn left from the adjacent center lane, and the State introduced the video recording which corroborated the officer’s testimony about his location.

After the State rested, Walker took the stand in his own defense. He conceded that the video showed that there were no police cars pulling out of the restaurant parking lot at the time of his left turn. Walker claimed that his testimony in the red light trial that the officer had been pulling out of the restaurant parking lot had simply been a mistake rather than a wilful false statement.

After reviewing the video and hearing from the witnesses, the jury convicted Walker of perjury. See OCGA § 16-10-70. Walker filed a motion for a new trial on several grounds, which the trial court denied. This appeal followed.

1. “In reviewing the denial of a motion for a directed verdict of acquittal, we apply the same standard of review applicable to a challenge to the sufficiency of the evidence.” Clement v. State, 309 Ga. App. 376, 377 (1) (710 SE2d 590) (2011). Under that standard, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation and emphasis omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). In answering that question, we do “not re-weigh the evidence or resolve conflicts in testimony, but rather defer[ ] to the jury’s assessment of the weight and credibility of the evidence.” Walker v. State, 282 Ga. 406 (651 SE2d 12) (2007).

“A person to whom a lawful oath or affirmation has been administered commits the offense of perjury when, in a judicial proceeding, he knowingly and willfully makes a false statement material to the issue or point in question.” OCGA § 16-10-70. The essential elements of the offense of perjury thus are: “(1) knowingly and willfully making a false statement, (2) material to an issue in question, (3) while under oath in a judicial proceeding.” Williams v. State, 244 Ga. App. 692, 696 (4) (536 SE2d 572) (2000). “A conviction for perjury requires either testimony of two witnesses or that of one witness and corroborating circumstances to support it.” Dixon v. State, 172 Ga. App. 803, 804 (324 SE2d 780) (1984). See OCGA § 24-4-8.

Walker contends that the trial court erred in denying his motion for a directed verdict of acquittal because there was insufficient evidence that his false statement regarding the location of the officer’s patrol car was material to the red light trial. He does not challenge the sufficiency of the evidence with respect to the other essential elements of perjury.

The “test of materiality is whether the alleged false statement could have influenced the decision as to the question at issue in the judicial proceeding in which the perjury is alleged to have been committed[.]” Hardison v. State, 86 Ga. App. 403 (71 SE2d 525) (1952).

The materiality of the false testimony may be shown by the record of the proceedings in which the testimony was given, or by the testimony there given, or by all or so much of the pleadings therein as show the issues, together with such other facts proved on the trial as tend to show the testimony to be on a material issue.

(Citation and punctuation omitted.) Clackum v. State, 55 Ga. App. 44, 51 (189 SE 397) (1936). Whether the false statement was material is normally an issue for the jury. West v. State, 228 Ga. App. 713, 715 (2) (492 SE2d 576) (1997).

Walker’s false statement in the red light trial about the location of the patrol car went to the issue of whether the officer could have observed the alleged red light violation and thus over whether the officer’s testimony was credible. As such, his testimony clearly could have influenced the jury’s decision over whether he actually ran the red light. Moreover, our case law establishes that if a witness testifies to a material issue at trial, then false testimony going to the credibility of that witness likewise can be considered material. West, 228 Ga. App. at 715 (2). Under these circumstances, we conclude that there was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Walker’s false statement about the location of the officer’s patrol car was material. See id.

2. Walker also argues that the trial court erred in reading the perjury count of the indictment to the jury without first redacting any reference to the prior red light trial. According to Walker, the unredacted reference to the red light trial in the perjury indictment impermissibly placed his character in issue and thus prejudiced the jury against him.

Walker’s argument is without merit. The reference in the perjury indictment to the prior red light trial was relevant and necessary to explain the context of and the basis for the alleged perjured statement made by Walker. But, in any event, Walker cannot demonstrate how he was harmed by having the unredacted perjury indictment read to the jury. “It is axiomatic that harm as well as error must be shown to authorize a reversal by this court.” (Citation and punctuation omitted.) McCollum v. State, 258 Ga. App. 574, 579 (3) (574 SE2d 561) (2002). The trial court instructed the jury in its preliminary and final charges that it should not consider the indictment as evidence in the perjury trial. At the same time, the jury heard abundant substantive testimony regarding the prior red light trial without any objection from Walker that the testimony impermissibly placed his character in issue. Given these circumstances, Walker cannot show harm resulting from the reading of the unredacted perjury indictment to the jury. See Hines v. State, 276 Ga. 491, 495 (6) (c) (578 SE2d 868) (2003); Presnell v. State, 274 Ga. 246, 253 (13) (b) (551 SE2d 723) (2001).

3. Walker further contends that the trial court erred in allowing the State to prove that he made sworn false statements in the red light trial through witness testimony. According to Walker, his sworn statements in the red light trial could only be established through the admission of an official court transcript of that trial. Given the unavailability of such a transcript, Walker argues that the perjury charge against him should have been dismissed.

We are unpersuaded. As a general rule, to prove that the defendant made a perjured statement in a former judicial proceeding, the State must introduce the record of the former proceeding or a duly authenticated transcript. See Heflin v. State, 88 Ga. 151, 158 (14 SE 112) (1891). See generally OCGA § 24-5-31; Sikes v. State, 76 Ga. App. 883, 885 (2) (47 SE2d 677) (1948). But the State can introduce witness testimony to establish the defendant’s perjured testimony in the former proceeding if an original record of the proceeding is unavailable or inaccessible and cannot be produced despite the State’s exercise of due diligence. See Pence v. State, 36 Ga. App. 270, 271-272 (136 SE 820) (1927); Hart v. State, 34 Ga. App. 592 (130 SE 346) (1925). See generally OCGA § 24-5-2; Brinkley v. State, 301 Ga. App. 827, 830 (2) (689 SE2d 116) (2009).

It is undisputed that the red light trial was not recorded by a court reporter and thus could not be transcribed for use in the perjury trial. Accordingly, because an original record of the red light trial was unavailable and could not be produced despite the exercise of the State’s due diligence, the State was authorized to prove Walker’s perjured testimony through witness testimony. See Pence, 36 Ga. App. at 271-272; Hart, 34 Ga. App. at 592. The trial court therefore committed no error in denying Walker’s motion to dismiss.

4. In a related enumeration of error, Walker contends that the trial court erred in declining to charge the jury that as a general rule, to convict a defendant for perjury, the State must introduce the record of the former proceeding or a duly authenticated transcript. However, as made clear by our discussion in Division 3, Walker’s requested charge was an incomplete statement of the law. Thus, the trial court committed no error in declining to give the requested charge. See Gresham v. State, 303 Ga. App. 682, 688 (3) (695 SE2d 73) (2010) (“If any portion of a requested charge is inapt, incorrect, misleading, confusing, not adequately adjusted or tailored, or not reasonably raised by the evidence, denial of the charge request is proper.”) (citation, punctuation and footnote omitted).

5. In two enumerations of error, Walker maintains that the trial court erred in failing to conclude that the State violated Brady v. Maryland, 373 U. S. 83, 87 (83 SC 1194, 10 LE2d 215) (1963), by not disclosing to him that the prosecution had spoken with one of the jurors who decided the red light trial. According to Walker, the juror’s statements to the State about the jury’s deliberations in the red light trial showed that Walker’s sworn testimony about the location of the officer’s patrol car was immaterial to the jury’s decision to acquit him in that case.

To prevail on his Brady claim, Walker must show that “had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.” (Citation omitted.) Morris v. State, 284 Ga. 1, 3 (2) (662 SE2d 110) (2008). He has failed to make such a showing in this case, given that the juror could not have testified in the perjury trial about the effect of Walker’s sworn testimony on jury deliberations in the red light trial.

As previously noted, the test of materiality in a perjury case “is whether the alleged false statement could have influenced the decision as to the question at issue in the judicial proceeding in which the perjury is alleged to have been committed[.]” (Emphasis supplied.) Hardison, 86 Ga. App. at 403. As such, the actual effect of the false statement on jurors in the former judicial proceeding has no bearing on its materiality. See id. Consequently, Walker cannot demonstrate that even if the State had made him aware of the juror’s statements regarding deliberations in the prior red light trial, there is a reasonable probability that the outcome of the perjury trial would have been different. The trial court thus committed no error in concluding that Walker could not prevail on his Brady claim.

6. Finally, Walker contends that the trial court erred in concluding that the State had satisfied its obligations under the Criminal Procedure Discovery Act, OCGA § 17-16-1 et seq., when the State had failed to produce (a) statements of its testifying witnesses or (b) the police duty logs for the day of the red light violation.

(a) As our Supreme Court has explained,

[a] It hough OCGA § 17-16-7 requires the State to produce “any statement of any witness that is in the possession, custody, or control of the state,” that requirement applies only to statements that have either been recorded or committed to writing. This statutory obligation is not triggered when a witness merely makes an oral statement.

(Citations and punctuation omitted.) Hunt v. State, 278 Ga. 479, 480 (2) (604 SE2d 144) (2004). Here, as Walker himself points out in his brief, there is no evidence in the record that any of the testifying witnesses gave the police or the prosecution a written or recorded statement that was not produced to him; therefore, there is no evidence that a discovery violation occurred with regard to witness statements. See Chandler v. State, 309 Ga. App. 611, 613 (1) (710 SE2d 826) (2011); Parks v. State, 294 Ga. App. 646, 647-648 (1) (669 SE2d 684) (2008).

(b) Walker claimed that he was entitled to production of the police duty logs for the day of the red light violation because they might have shown other police cars in the immediate area of the intersection, and thus could have explained why Walker mistakenly believed that the officer who stopped him had pulled out of the restaurant parking lot. But a defendant asserting a discovery violation must show harm as well as error to merit reversal of his conviction. See Prindle v. State, 240 Ga. App. 461, 463 (3) (523 SE2d 44) (1999); Evans v. State, 233 Ga. App. 879, 880 (2) (506 SE2d 169) (1998). And as Walker himself conceded, the video from the officer’s patrol car showed that there were no police cars pulling out of the restaurant parking lot at the time. For this reason, pretermitting whether a discovery violation occurred, we conclude that Walker cannot show how the failure to produce the police duty logs caused any harm.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

Decided February 24, 2012

Reconsideration denied March 12, 2012

Floyd H. Farless, Donald F. Samuel, for appellant.

Leigh E. Patterson, District Attorney, Suhirjahaan S. Morehead, Assistant District Attorney, for appellee.

       See Smith v. State, 279 Ga. App. 211 (630 SE2d 833) (2006).

       A different superior court judge presided over the perjury trial.

       Walker did not enumerate as error on appeal or contend in the trial court that his criminal prosecution for perjury following his acquittal in the red light trial was barred by the doctrine of collateral estoppel incorporated into the federal Fifth Amendment guarantee against double jeopardy. See Ashe v. Swenson, 397 U. S. 436, 442-444 (90 SC 1189, 25 LE2d 469) (1970); Moore v. State, 254 Ga. 674, 675-678 (333 SE2d 605) (1985); Zolun v. State, 169 Ga. App. 707, 708-710 (3) (314 SE2d 672) (1984) (physical precedent only). Because this court is a court for the correction of errors, we will not consider matters, even of constitutional magnitude, that were not raised and ruled upon in the trial court. See Worthy v. State, 252 Ga. App. 852, 854 (3) (557 SE2d 448) (2001).

       The State’s interview of the juror was not recorded or otherwise memorialized in writing.


author: Miller, Judge.

text:
    A11A1620.
    GREG A. BECKER ENTERPRISES, LTD. et al. v. SUMMIT INVESTMENT MANAGEMENT ACQUISITIONS I, LLC.
    (725 SE2d 841)
   Miller, Judge.

This case arises from an application for confirmation of a foreclosure sale filed by Summit Investment Management Acquisitions I, LLC (“Summit”) against Greg A. Becker Enterprises, Ltd.; Greg A. Becker; Granite Mountain Motor Sports, Inc.; LKB Enterprises, Inc.; and Stone Mountain Motor Sports, Inc. (collectively “Becker”). Following a confirmation hearing, the trial court denied the application to confirm the sale, but found good cause had been shown to order a resale of the property in accordance with OCGA § 44-14-161 (c). Becker appeals, contending that the trial court (1) abused its discretion in ordering a resale, (2) applied an incorrect legal standard in reaching its decision, and (3) erred in denying the post-hearing motion to reopen the evidence. We discern no error and affirm.

The trial court is the trier of fact in a confirmation proceeding, and an appellate court will not disturb its findings if there is any evidence to support them. Furthermore, we do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court’s judgment.

(Citations and punctuation omitted.) Statesboro Blues Dev. v. Farmers &c. Bank, 301 Ga. App. 851, 852 (690 SE2d 205) (2010).

So viewed, the undisputed evidence shows that on December 20, 2006, Greg A. Becker Enterprises, Ltd. executed a “Deed to Secure Debt, Assignment of Rents and Security Agreement” (“Security Deed”) to secure repayment of two promissory notes in the total principal amount of $3,485,000. Pursuant to the Security Deed, the lender, Alpha Bank & Trust, acquired a security interest in Becker Enterprises’s real property located at 2060 Ross Road in Gwinnett County. Greg A. Becker, Granite Mountain Motor Sports, Inc., LKB Enterprises, Inc., and Stone Mountain Motor Sports, Inc. executed guarantees covering the Promissory Notes.

In October 2008, the Federal Deposit Insurance Corporation (“FDIC”) was appointed Receiver of Alpha Bank. Thereafter, the FDIC assigned Becker’s Security Deed to Summit. Becker defaulted on the Promissory Notes, and the balance owed on the debt was $3,403,964.92. Summit initiated a proceeding to foreclose upon Becker’s real property in accordance with the power of sale authorized in the Security Deed.

The foreclosure sale occurred on August 3, 2010. There were no other bidders at the foreclosure sale, and the property was knocked down and sold to Summit for $1.1 million. Since the foreclosure sale did not bring the amount of the debt owed, on September 1, 2010, Summit timely filed an application for confirmation and reported the sale to the trial court judge pursuant to OCGA § 44-14-161 (a).

At the confirmation hearing, the parties presented the testimony of their respective real estate appraisers, who gave opinions regarding the true market value of the property on the date of the sale. Summit’s appraisers testified that using the cost and sales comparison valuation methods, they valued the property to be $1.1 million. Summit’s appraisers conceded on cross-examination, however, that they had inspected only the exterior of the building, did not access and inspect the interior of the building, and did not take measurements to determine the accurate square footage of the building. Summit’s appraised value was based upon an inaccurate estimate that the building was approximately 24,912 square feet. Summit’s supervising appraiser agreed that more square footage would result in a higher appraised value.

Becker’s appraiser testified that the income and sales comparison valuation methods were more applicable in rendering an accurate valuation. Applying those methods, he valued the property to be $1,425 million. Becker’s appraiser stated that he had inspected and measured the interior of the building in gathering the information for his appraisal. He testified that the building measured a total of 27,323 square feet.

Following the hearing, the trial court entered a detailed final order with findings of fact and conclusions of law. The trial court specifically found that the testimony of Becker’s appraiser was more reasonable and credible than that of Summit’s appraisers. The trial court cited the failure of Summit’s appraisers to gain access inside the property in the performance of their valuation, but further determined that the failure did not establish a lack of good faith. The trial court found that Summit’s lack of access was caused by the contentious relationship between the parties. In light of the disparity between the appraisal valuations, and its determination that the $1,425 million valuation of Becker’s appraisal was more credible, the trial court found that the property failed to sell for its true market value at the foreclosure sale. The trial court therefore denied confirmation of the foreclosure sale and concluded that good cause had been shown to order a resale of the property in accordance with OCGA § 44-14-161 (c).

1. Contrary to Becker’s contention of error, the trial court was authorized to order a resale of the property based upon the evidence and circumstances presented.

OCGA § 44-14-161 (c) pertinently provides that the trial court “may order a resale of the property for good cause shown.” Under this statutory provision, the trial court is vested with “considerable discretion” in determining whether to order a resale. Resolution Trust Corp. v. Morrow Auto Center, 216 Ga. App. 226, 227-228 (2) (454 SE2d 138) (1995). “[T]he statute does not define what constitutes ‘good cause’ ” and “does not. . . require evidence of bad faith or negligence.” (Punctuation omitted.) Id. at 228 (2). We have declined to establish restrictions on the trial court’s discretion in determining whether the circumstances warrant a resale. Id. Under circumstances similar to those in the instant case, in which the appellee relied upon a fatally flawed appraisal and failed to prove that it sold the property for true market value, we held that a resale was authorized. See Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 261-262 (2) (424 SE2d 889) (1992).

Becker nevertheless argues that Summit had actual knowledge that its appraisal was fatally flawed, and thus, failed to show good cause for a resale. In support of its argument, Becker relies upon conflicting evidence that a prior appraisal indicated that the building was nearly 4,000 square feet larger than the estimate set forth in Summit’s appraisal. However, there was no evidence showing that the Summit appraisers had reviewed the prior appraisal before they prepared their appraisal report. Summit’s appraisers testified that since they did not have access inside the building, they relied on tax records to estimate the square footage.

Although Becker further points to evidence that Summit’s appraisers did not take steps to contact him or his counsel to gain access inside the building, there was evidence supporting the trial court’s finding that Summit’s lack of access was due to the parties’ contentious relationship. Significantly, Summit’s agent testified that Becker would not talk to him, and that he did not insist upon gaining access since he did not want to cause any further conflict.

Notwithstanding any conflicts in the hearing testimony, the trial court was authorized to find that there had been no showing of a lack of good faith in Summit’s conduct of the foreclosure proceedings. Since the evidence supported a finding that Summit did not intentionally sell and buy the property at a price less than the true market value, the trial court did not abuse its discretion in ordering a resale. See Adams v. Gwinnett Commercial Bank, 140 Ga. App. 233, 234-235 (3) (230 SE2d 324) (1976).

2. There likewise is no merit in Becker’s contention that the trial court applied an incorrect legal standard in its determination to order a resale. The record does not support Becker’s claim that the trial court erroneously required him to make a showing of bad faith. To the contrary, the record shows that the trial court’s finding that the evidence “[did] not establish a lack of good faith on the part of [Summit]” pertained to its relevant determination that Summit had not acted intentionally to sell the property at a price less than the true market value in order to seek confirmation and a deficiency judgment. See, e.g., Adams, supra, 140 Ga. App. at 235 (3). The trial court’s order established that it applied the proper “good cause” standard in its decision to order a resale.

3. Lastly, Becker has not shown that the trial court abused its discretion in denying his post-hearing motion to reopen the evidence.

“The trial court has the discretion whether or not to allow the party to re-open the evidence in its case-in-chief. This [C]ourt will not reverse unless there has been an abuse of that discretion.” (Citations and punctuation omitted.) Nationsbank, N.A. v. Tucker, 231 Ga. App. 622, 624 (1) (c) (500 SE2d 378) (1998).

Becker contends that he should have been allowed to submit additional evidence as to the amount of the debt in response to Summit’s improper closing arguments regarding the existence of the indebtedness and the deficiency. As Becker acknowledges, however,

[t]he confirmation proceeding is a statutory proceeding ... originated as a means of protecting the debtor from being subject to double payment in cases where the property was purchased for a sum less than its fair market value. The duty of the trial court is to test the fairness of the technical procedure of the actual sale and to insure that it brought at least the true market value; the statute does not undertake to decide controversies between parties as to the amount of the debt, side agreements, or matters in defense of default or in denial of indebtedness, or which might have been the basis of an injunction preventing the foreclosure sale. . . . Except as to the confirmed amount of the sale, it does not establish the liability of any party with regards to the indebtedness.

(Citation and punctuation omitted; emphasis supplied.) Dorsey v. Mancuso, 249 Ga. App. 259, 261 (547 SE2d 787) (2001). Since the confirmation proceeding is not intended to address the existence or amount of the indebtedness, id., the additional evidence that Becker sought to submit was inadmissible. It thus follows that the trial court properly refused to reopen and accept the additional evidence. Moreover, notwithstanding Summit’s closing arguments making reference to the amount of the debt, the record does not show that the trial court considered the improper reference in its decision. See Cannon v. Boesger, 172 Ga. App. 488 (2) (323 SE2d 687) (1984) (“Where a case is tried before a judge without a jury, it is presumed that judgment was rendered only upon the competent and legal evidence before him[.]”) (citations and punctuation omitted).

DECIDED March 12, 2012

Thompson, O’Brien, Kemp & Nasuti, Aaron M. Kappler, Kevin S. Kovalchik, for appellants.

Schreeder, Wheeler & Flint, Debbie A. Wilson, for appellee.

Becker also claims that he should have been allowed to present additional evidence concerning Summit’s lack of diligence in inspecting the property. However, Becker had already elicited hearing testimony addressing that issue. As such, any additional evidence would have been merely cumulative of that which had already been presented. “[T]he trial court did not abuse its discretion in excluding this alleged rebuttal evidence as cumulative.” (Citation omitted.) Hall County v. Merritt, 233 Ga. App. 526, 529 (3) (504 SE2d 754) (1998).

Since no error has been shown, we must affirm the trial court’s decision.

Judgment affirmed.

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


text:
    A11A1734.
    McBRIDE v. THE STATE.
    (725 SE2d 844)
   BARNES, Presiding Judge.

A jury convicted Earl Darrisaw McBride of aggravated assault, aggravated battery, simple battery, obstruction of an emergency telephone call, and three counts of obstruction of an officer. The trial court sentenced him to 35 years, 20 to be served in confinement. McBride contends on appeal that the trial court erred in failing to charge the jury that it could find him not guilty by reason of insanity, and in declining McBride’s request for a mistrial based on his failure to cooperate with his counsel. For the reasons that follow, we affirm.

The evidence showed that McBride lived with his mother and had been admitted to Central State Hospital numerous times. In September 2008, his mother was in the kitchen about to cook breakfast when McBride assaulted her. He poured dishwater over her head, pushed her into the table, knocked her down, hit her with his cane, and pulled the phone cord from the wall so she could not call for help. McBride left the house, and his mother called 911 from a neighbor’s house. While two police officers were talking to the mother in her kitchen, McBride returned and walked “straight back to his bedroom and locked the door.”

The first officer on the scene asked McBride to come out and talk to him, but he refused to open the door. McBride’s mother wanted McBride removed from her house, so the officer kicked the door open about a foot. McBride came to the door but instead of coming out, he stabbed the officer in the abdomen with a knife. The officer felt his stomach get “real, real hot” and noticed he was bleeding, but managed to kick the door open again briefly and fire his taser. The shots hit the door, which McBride had managed to close again, and other officers took over. They pushed the door partly open again, but McBride hit them with a fan and closed it. Finally, the officers kicked the door fully open and found McBride sitting in a chair. He refused to show his hands, but the officers subdued him and took him into custody, and he was placed in jail.

In February 2009, McBride gave notice of his intent to raise the issue of insanity in his defense, and in March 2009 the trial court ordered him to be evaluated regarding his competency to stand trial at the time of the acts. A forensic psychiatrist at Central State Hospital examined McBride and concluded that he was actively psychotic and not competent to stand trial at that time, although the doctor was unable to assess McBride’s mental health at the time of the crimes. McBride entered a plea of mentally incompetent to stand trial and sought a jury determination of his competence. In September 2009, a jury found McBride incompetent to stand trial, and the trial court committed him to the custody of the Department of Human Resources (“DHR”), and he was admitted to Central State.

In January 2010, a forensic psychologist at Central State reevaluated McBride. The examiner was still unable to assess McBride’s criminal responsibility at the time of the crimes because he would not cooperate. The examiner noted that McBride had been taking antipsychotic medication, and hospital staff had reported that McBride was able to advocate for his preferences and needs and demonstrated organized actions and comments. After reviewing his course of treatment and behavior during his commitment, the examiner concluded that McBride’s “complete refusal to participate in evaluations points to a deliberate attempt on the part of Mr. McBride to manipulate both the court system and the mental health system to avoid going to trial on his very serious charges.” The examiner concluded that McBride was capable of assisting his attorney in providing a proper defense “if he so chooses,” and recommended that McBride “be returned to jail as soon as possible to await trial.”

In February 2010, while acknowledging he had refused to cooperate with the examiner, McBride renewed his motion for an evaluation of his degree of criminal responsibility, observing that he was unable to plead not guilty by reason of insanity without such an evaluation. The trial court denied the motion, and the case went to trial in March 2010.

During the first day of trial, McBride was extremely argumentative with the trial court and accused his lawyers of being “in cahoots” with the State. During the State’s opening statement, McBride accused the prosecutor of lying. The trial court sent the jury out and warned McBride that he would be removed from court if he persisted in making outbursts. When the jury returned and opening resumed, McBride again accused the prosecutor of lying and began cursing at him. The trial court had McBride removed from the courtroom. After the State finished its opening statement, the jury retired for the evening, and McBride was returned to the courtroom, where the trial court warned him that if he did not “behave and be quiet” during the proceedings the next day, he would be gagged or removed from court again.

The next morning, McBride’s lawyer moved for a mistrial because of McBride’s behavior the previous day. The lawyer noted that McBride refused to talk to him after trial and thus could not assist his attorney in preparing for trial. The trial court denied the motion, noting that the examiner had determined that McBride understood the proceeding and was able to cooperate but chose not to do so.

McBride’s mother testified that she was afraid of McBride when he got into a rage, because she thought “he might do something to [her].” On cross-examination, when asked what she meant by “when Earl gets like that,” she explained that as long as he was on his medication he was okay, but once he stopped taking it, “you can’t hardly do anything with Earl.” She knew he had previously been under a doctor’s care, used to take Haldol and Seroquel, and had been admitted to Central State numerous times. She had called the police several times because he would “do crazy stuff.” She wanted him to get medical help for the way he acted.

Several law enforcement personnel testified about the events that led to McBride’s arrest. One testified that he had taken McBride to the hospital at Milledgeville at least twice, and that “any time you deal with Earl you’ve got to be a little apprehensive,” because “he’s just Earl.” Another officer testified that McBride appeared to be coherent and “in his right mind.” A third officer testified that he had dealt with McBride 15 to 20 times before and “firmly” believed McBride “knew exactly what was going on” that day.

1. McBride asserts that the trial court erred in declining to charge the jury that he could be found not guilty by reason of insanity. OCGA § 16-3-2 provides that a person “shall not be found guilty of a crime if, at the time of the act, . . . the person did not have mental capacity to distinguish between right and wrong in relation to such act. . . .” OCGA § 17-7-131 (b) (1) provides that, when an insanity defense is interposed, the jury “shall find whether the defendant is: Guilty; Not guilty; Not guilty by reason of insanity at the time of the crime; Guilty but mentally ill. . .; or Guilty but mentally retarded. ...” Further, an insanity defense “does not require expert testimony as a prerequisite for presentation to a jury,” Motes v. State, 256 Ga. 831, 832 (2) (353 SE2d 348) (1987), and if “the issue of insanity at the time of the commission of an alleged offense is made by the evidence, it is mandatory for the trial judge to charge the provisions of [OCGA § 17-7-131 (b) (1) (C)].” Morgan v. State, 224 Ga. 604, 605 (2) (163 SE2d 690) (1968).

In this case, however, McBride introduced no evidence of insanity, only lay witness testimony about generalized problems. Because he would not cooperate with the expert psychiatrist appointed by the court, McBride was not entitled to introduce his own expert, because “if a defendant wants to tell his story to a jury through the mouth of an expert, the [S]tate should have an equal opportunity to tell that story through the mouth of an expert.” Motes, 256 Ga. at 832 (2). Further, while a defendant is not required to introduce expert testimony before a jury can consider his insanity defense, no testimony indicated that McBride did not know the difference between right and wrong when he committed the acts. “Since no issue of insanity was raised by the evidence, it was not error to refuse to submit the issue of insanity to the jury.” Smith v. State, 180 Ga. App. 278, 279 (1) (349 SE2d 26) (1986); see also Morgan, 224 Ga. at 605-606.

McBride argues that his acts themselves were so senseless that they constituted sufficient evidence of his insanity to warrant a jury charge on not guilty by reason of insanity. The cases cited for that proposition, however, involved acts of a nature very different from McBride’s. Brown v. State, 228 Ga. 215, 219 (184 SE2d 655) (1971) (after stalking her for several hours, defendant shot her husband’s mistress at a department store in front of 50 to 75 eyewitnesses); Wilson v. State, 9 Ga. App. 274 (70 SE 1128) (1911) (defendant crawled over sleeping husband and attempted to rape wife lying beside him).

DECIDED MARCH 12, 2012.

Tobe C. Karrh, for appellant.

S. Hayward Altman, District Attorney, Anthony A. May, Assistant District Attorney, for appellee.

Because McBride failed to present any evidence from which a jury could conclude that he did not know right from wrong when he committed the criminal acts, the trial court did not err in declining to charge the jury that he could be found not guilty by reason of insanity.

2. McBride contends that the trial court erred in denying his motion for mistrial, which we review for abuse of discretion. Perkinson v. State, 279 Ga. 232, 239 (12) (610 SE2d 533) (2005). He argues that he was entitled to a mistrial because he would not cooperate with his lawyers or with the court-appointed psychiatric evaluator, and that the trial court’s failure to grant a mistrial was essentially a sanction for his refusal to cooperate with the evaluator.

After McBride’s lawyer moved for a mistrial, the trial court acknowledged that the defense was handicapped by McBride’s failure to cooperate with the evaluation and his refusal to talk to his lawyers for several weeks, after being declared mentally competent. The court then addressed McBride directly, and after a lengthy colloquy, McBride assured the court that he would do his best to sit “and quietly listen and speak when [he was] given the opportunity,” rather than disrupt the proceedings. When court convened the next morning, counsel reported that McBride still refused to talk to him and renewed the motion for a mistrial based on McBride’s “obvious history and his current behavior.” In denying the motion, the court observed that if McBride’s failure to cooperate were a ground for mistrial, he could avoid ever being tried because he could always refuse to cooperate.

An “appellant cannot obtain a reversal for errors which he himself has committed or induced.” Potts v. State, 241 Ga. 67, 80 (12) (243 SE2d 510) (1978). While this court also acknowledges the difficulties inherent in representing an uncooperative client who has been found competent, we cannot say the trial court abused its discretion in denying McBride’s motion for a mistrial under these circumstances.

Judgment affirmed.

Adams and Blackwell, JJ., concur.


text:
    A11A1777.
    KEMP v. THE STATE.
    (726 SE2d 447)
   BARNES, Presiding Judge.

Following a jury trial, Robert Helsep Kemp IV was found guilty of family violence battery, battery, and disorderly conduct. He appeals his conviction, contending that the evidence was insufficient, that the trial court erred by failing to give a limiting instruction before admitting evidence of prior difficulties, and that trial counsel was ineffective for failing to object to an improper closing argument. Following our review, we affirm.

1. When a criminal defendant challenges the sufficiency of the evidence supporting his conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). It is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Id. “As 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.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).

The record reveals that on September 5, 2010, two girls were playing inside a home located across the street from Kemp when they heard an argument and a woman’s screams. The children looked out of their window and saw Kemp attacking his wife in the garage of the Kemp home. The girls testified that when Kemp spotted them watching the attack, he closed the garage door. The children called 911. When police responded, the officers repeatedly knocked on the door and rang the doorbell, telephoned the house, and used their vehicle’s PA speaker before, after approximately 45 minutes, Kemp opened the door. Kemp initially told officers that his wife was not home, but later admitted that she was present. When officers spoke with his wife, they observed that she had blood running from her lip, a black eye, and a swollen face. The wife said that she had attempted to leave, but that Kemp would not let her, and that he had hit her. She told police that she had fallen in the garage and “busted” her lip. Kemp told police that his cousins had been arguing in the garage earlier that day, but that they were gone.

At trial, the wife recanted her earlier statement, and testified that she did not tell officers that her husband hit her. She further testified that she and a visitor in their home, Cedric Varner, had an altercation in the garage that day. Varner corroborated the wife’s testimony, and testified that he and the wife had an altercation in the garage on the day in question. However, the two girls who witnessed the attack both identified Kemp as the man they saw that day.

“A person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another.” OCGA § 16-5-23.1 (a). “If the offense of battery is committed between . . . persons living or formerly living in the same household, then such offense shall constitute the offense of family violence battery. . . .” OCGA § 16-5-23.1 (f). Although there were conflicts in the evidence presented in this case, it was solely within the jury’s authority to resolve any conflicts, to weigh the evidence, and to judge the credibility of the witnesses in reaching its verdict. Jackson, 443 U. S. at 319 (III) (B). Moreover, the wife’s prior inconsistent statements to the officer constituted substantive evidence upon which the jury could rely in reaching its verdict of guilty. See Griffin v. State, 262 Ga. App. 87, 88 (1) (585 SE2d 145) (2003). Thus, the evidence being sufficient, the jury was authorized to find that Kemp was guilty beyond a reasonable doubt of the charged crimes. Miller, 273 Ga. at 832.

2. Kemp next contends that the trial court erred by failing to give a limiting instruction before admitting evidence of prior difficulties.

Here, the State presented testimony from an officer who had investigated a prior incident of domestic violence involving the Kemps. Kemp’s trial counsel objected to the relevance of the testimony, and the trial court overruled the objection. Although trial counsel objected several other times on various grounds during the officer’s testimony, she did not request a limiting instruction on the prior difficulties. However, the trial court instructed the jury on prior difficulties evidence in its final jury charge.

Without a request, no reversible error occurs when a trial court fails to give any limiting instruction to the jury on the use of prior difficulties evidence, either when the evidence was introduced or in the charge at the close of evidence. Connelly v. State, 295 Ga. App. 765, 769 (4) (673 SE2d 274) (2009). This Court has held that while the better practice would be to give an instruction when the evidence was admitted had a request been made, there is no reversible error absent a showing of plain error. Mullins v. State, 298 Ga. App. 368, 371 (1) (b) (680 SE2d 474) (2009). No plain error has been shown here.

3. Kemp last contends that trial counsel was ineffective for failing to object to improper statements in the State’s closing argument. Kemp acknowledges that the issue was not raised below, but argues that this was the earliest opportunity to raise the issue because his current counsel was appointed after the notice of appeal was filed and the period for filing a motion for new trial. See Russell v. State, 267 Ga. 865, 868 (4) (485 SE2d 717) (1997).

Decided March 12, 2012.

Lister & Holt, Kristi W. Wilson, Cerille B. Nassau, for appellant.

Ordinarily, where an ineffectiveness claim is raised for the first time on appeal, the case is remanded for an ineffectiveness hearing in the trial court. Elrod v. State, 222 Ga. App. 704, 705 (1) (475 SE2d 710) (1996). In this case, the claim of ineffectiveness can be decided from the record on appeal; therefore, a remand to the trial court for a hearing would “waste judicial and legal resources” and “would serve no useful purpose.” (Citations and punctuation omitted.) Id. at 705-706. In pursuing a claim of ineffective assistance of counsel, Kemp must show (1) that his attorney’s representation was deficient; and (2) that the deficient representation prejudiced his defense, that is, that a reasonable probability exists that but for the ineffective representation the result of the proceeding would have been different. Strickland v. Washington, 466 U. S. 668, 687 (III), 694 (III) (B) (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. See id. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

Kemp contends that the statement in the State’s closing argument that to “tell Mr. Kemp and Ms. Kemp this isn’t the way to live, and do it before it’s too late” is a clear violation of the prohibition against future dangerousness.

It is highly “improper for a prosecutor to argue during the guilt-innocence phase of a criminal trial that if found not guilty, a defendant poses a threat of future dangerousness.” Hines v. State, 248 Ga. App. 752, 756 (3) (548 SE2d 642) (2001). However, here, pretermitting whether the statement violated the prohibition against future-dangerousness arguments, “it is highly unlikely that this single portion of the prosecutor’s closing argument contributed to the guilty verdict,” given the evidence presented, including the testimony of the two eyewitnesses, the officer’s observance, and the prior inconsistent statement from the victim. See Mikell v. State, 281 Ga. App. 739, 745 (3) (c) (637 SE2d 142) (2006).

Thus, as Kemp has not shown that there was a reasonable probability that the outcome of the case would have been different but for the purported deficient performance of trial counsel, he cannot prevail on his ineffective assistance of counsel claim.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

Tasha M. Mosley, Solicitor-General, Keith E. Gammage, Assistant Solicitor-General, for appellee.


text:
    A11A1814.
    POWERS v. THE STATE.
    (725 SE2d 848)
   BARNES, Presiding Judge.

A jury convicted Charles Powers of rape, aggravated sodomy, burglary, and false imprisonment, and the trial court sentenced him to two consecutive life sentences followed by twenty-five years on probation. He appeals, contending that the trial court erred in denying his motion for continuance, his motion to suppress his statement, his mid-trial motion to proceed pro se, and his motion for a mistrial. He also contends that the evidence against him was insufficient and that his trial counsel was ineffective for failing to object to the victim’s in-court identification of him. For the reasons that follow, we affirm.

1. Powers contends that the trial court erred in denying his motion for a continuance based on a discovery violation and his motion for a continuance to investigate whether he had mental issues that affected his ability to assist his counsel at trial.

(a) Before voir dire began, Powers asked the trial court for permission to act as co-counsel. The trial court explained that Powers could not act as co-counsel, but had to choose whether to represent himself or to be represented by counsel. “Although a defendant has a right to represent himself, he does not have the right to act as co-counsel.” Isaacs v. State, 259 Ga. 717, 731 (24) (386 SE2d 316) (1989). Powers elected to continue being represented by his lawyer, and the trial court granted his request for time to confer with his lawyer. After they conferred, trial counsel announced that Powers wanted him to ask the court for a continuance because, among other things, he did not receive a complete witness list until three or four days earlier.

The State responded that although it had added Powers’ current wife to the State’s list of witnesses, she was not a “surprise” witness because Powers knew of her existence and of any relevant contact he had with her during the events at issue. She was added to the witness list as soon as the State discovered she was available to testify, on the Friday before trial. The State also admitted that it had added a police officer to its witness list as a substitute for another officer who might not be available to testify about events surrounding Powers’ capture after he escaped from custody. The trial court denied the motion for continuance based on a discovery violation.

Powers renewed the motion when the substitute officer was called as a witness, but withdrew it after the State presented evidence it had given him notice of the change. He did not object when the State called Powers’ wife to testify during its rebuttal.

OCGA § 17-16-8 (a) directs the State to provide a witness list to the defendant no later than ten days before trial, “unless for good cause the judge allows an exception to this requirement, in which event the counsel shall be afforded an opportunity to interview such witnesses prior to the witnesses being called to testify.” The purpose of the statute is to prevent a defendant from being surprised at trial by a witness he has not had an opportunity to interview. Morris v. State, 268 Ga. App. 325, 326-327 (1) (601 SE2d 804) (2004). We review for abuse of discretion a trial court’s decision about the imposition of sanctions or grant of a continuance due to the State’s failure to comply with discovery. Brown v. State, 236 Ga. App. 478, 481 (3) (512 SE2d 369) (1999).

In this case, Powers waived the issue with regard to the substituted police officer because he withdrew his objection. He did not ask to interview either witness before they testified and does not contend that he was surprised by the witnesses’ testimony or prejudiced by not knowing earlier that they were going to testify. Further, he made no showing that the State acted in bad faith in failing to list either witness earlier. Accordingly, the trial court did not abuse its discretion in denying Powers’ motion for a continuance and permitting the witnesses to testify. Taylor v. State, 305 Ga. App. 748, 753 (2) (a) (700 SE2d 841) (2010); Rollinson v. State, 276 Ga. App. 375, 378 (1) (c) (623 SE2d 211) (2005).

(b) Following a Jackson-Denno hearing on the admissibility of Powers’ statement to police, trial counsel announced that Powers had informed counsel for the first time that he had an extensive mental health history and had asked counsel to seek a continuance for an evaluation of his competence to stand trial. The trial court took the matter under advisement until the next morning, when it denied the motion in a written order. The court found that Powers had not been diligent in telling his lawyer about any mental health issues until after the jury had been selected and sworn. The court further found that Powers had presented insufficient evidence of mental incompetence to require an evaluation, especially considering “the coherence and intelligence” he demonstrated during his testimony at the hearing the day before and during his taped interview with the detective on the day of the crimes.

Mental competency is presumed, so absent evidence of a defendant’s incompetency, a trial court need not conduct a competency hearing. Strong v. State, 263 Ga. 587, 590 (5) (436 SE2d 213) (1993). If the court has sufficient information at the time of trial to raise a bona fide doubt about the defendant’s ability to understand the proceedings, appreciate their significance, or assist his lawyer in presenting his defense, the court must conduct a competency hearing. Mitchell v. State, 207 Ga. App. 306, 308 (3) (427 SE2d 814) (1993); White v. State, 202 Ga. App. 424, 425 (414 SE2d 328) (1992). Here, the record contains no evidence that Powers had been behaving irrationally or that medical opinions existed about his competence to stand trial. The trial court found that Powers’ demeanor during court proceedings had been appropriate. Accordingly, absent evidence of incompetence, the trial court did not err in denying Powers’ motion seeking a continuance so he could be evaluated on his competence to stand trial. Flesche v. State, 254 Ga. App. 3, 4-6 (1) (561 SE2d 160) (2002).

2. Powers challenges the admission into evidence of a recorded statement he made to an FBI agent, arguing it was not voluntary because he was under the influence of prescription drugs when he gave it. He contends that he tried to tell the agent which medications he was taking, but the agent would not let him. He also argues he was not adequately informed of his Miranda rights, and that the State did not show he understood those rights.

“[T]he determination of whether a waiver of rights and a subsequent statement are knowing and voluntary depends on the totality of the circumstances.” (Citation and punctuation omitted.) Rivera v. State, 282 Ga. 355, 359 (4) (647 SE2d 70) (2007). We will affirm a trial court’s factual determinations and credibility findings related to the admissibility of statements unless they are clearly erroneous. Id. at 360 (4) (a). Here, the trial court in a written order considered Powers’ age (42), education (a GED and two years of technical college), his knowledge of the charges and of his right to remain silent and consult an attorney (the interview confirmed he knew about the charges and his rights), whether he was held incommunicado (he was not even under arrest, but came to the station voluntarily), the methods of interrogation (no coercive techniques), the length of the interview (less than an hour), whether he had previously refused to give a statement (he had not), and whether he later repudiated the statement (not until the trial, when his lawyer requested a hearing). The trial court concluded that even though the interview was noncustodial, Powers was still advised of his Miranda rights, which he understood and waived. The trial court found that, although Powers testified during the Jackson-Denno hearing that he had been under the influence of prescription drugs when he gave his statement,

the recording clearly show[ed] that his voice was clear, strong and his responses to questions were promptly and clearly given. His speech was not slurred and the court could detect no other indicia of intoxication. On the recorded statement, [Powers] eloquently read the entire Miranda waiver form aloud, correctly pronouncing all of the words, without pausing or stumbling. He was also alert, responsive and detailed in his answers.

The court noted that the FBI agent testified that Powers did not appear to be under the influence of drugs, and the court concluded that Powers’ statement was admissible because it “was the product of rational intellect and free will, that defendant was in control of himself, was coherent, knew what he was saying, and that he understood his rights and knew what was going on.”

“The evidence supports the trial court’s findings in favor of admissibility.” Rivera, 282 Ga. at 359 (4) (a).

3. Powers asserts that his trial counsel was ineffective for failing to object to the victim’s in-court identification of Powers as her assailant. Powers’ defense was that the victim consented to sexual activity; therefore identification was not an issue at trial. The assertion that trial counsel was ineffective for not objecting to the victim’s identification of Powers is therefore without merit.

4. Powers contends that the trial court erred in refusing his mid-trial request to fire his lawyer and proceed pro se, without ascertaining his competence or affording him a hearing.

As discussed previously, before the jury was struck, Powers asked for permission to act as co-counsel with his appointed lawyer, and when given the option of representing himself or retaining his trial counsel, he decided to retain his counsel. The trial proceeded and on the third day, after eleven witnesses had testified for the State, the defendant’s four witnesses had testified for the defense, and the defense had rested, Powers advised his attorney that he wanted to take over his defense. Powers told the court that there were “several things that [his] attorney ha[d] not brought out,” and wanted to recall the victim, her friend, the FBI agent, and the nurse who had examined the victim after the rape, to ask them more questions. The trial court denied the request, noting that all of those witnesses had been excused and observing that Powell wanted to “basically, overrule counsel... to bring out in rebuttal things that [his] attorney decided [Powers] should not bring out.”

We find no error. “A request for self-representation must be made before trial. The denial of such a request made after the beginning of trial is not reversible error.” (Citation omitted.) Coley v. State, 272 Ga. App. 446, 448 (1) (612 SE2d 608) (2005). “[A] defendant cannot frivolously change his mind in midstream by asserting his right to self-representation in the middle of his trial.” (Citation and punctuation omitted.) Thaxton v. State, 260 Ga. 141, 142 (2) (390 SE2d 841) (1990).

5. Powers asserts that the trial court erred in denying his hearsay objection as untimely, and, confusingly, addresses the standard to be considered in assessing an ineffectiveness of counsel claim. But the trial court sustained Powers’ hearsay objection and gave the jury curative instructions, although it denied Powers’ motion for a mistrial. It was the State who argued, unsuccessfully, that the objection was untimely. Accordingly, this enumeration of error presents nothing for review.

6. Finally, Powers contends that the evidence was insufficient to sustain the verdict, because the victim never saw a weapon and never testified that Powers made a direct threat, only that he said “he would have to get tough” if she did not cooperate with him. He asserts that this statement “is too vague to constitute the force necessary to constitute a rape,” and that the evidence was consistent with his testimony that his “encounter” with the victim was consensual. Further, he argued, while there was evidence of a footprint on the victim’s bedroom door, no evidence tied him to the footprint, and “no . . . tools [were] found that would allow an individual to break into the house,” which presumably is an argument that the evidence was insufficient to sustain the burglary conviction. Finally, he states the standard required for conviction in a circumstantial evidence case.

The evidence in this case is much more than circumstantial, and is sufficient to sustain the convictions. The victim testified that the night before Thanksgiving 2007, before going to bed she locked the deadbolt, chain, and doorknob lock on her back door, and then placed a bar under that doorknob, as well as locking her bedroom door and placing a bar under that doorknob. Despite those precautions, a “very very loud sound” woke her at 3:30 a.m. to see a man stumbling over the doorknob bar into her bedroom. The sound was the doorknob breaking off of her door. She thought it was a nightmare at first and when she realized it was not, she became “hysterical” and thought she would pass out. Powers told her that she could participate in what he wanted to do or he could use force, and she thought that “anybody [who] would come through six locks would do most anything.” She felt helpless, knowing she would lose in a battle of force. She “pleaded and begged no,” prayed, “kind of got numb,” went into a state of shock, and removed her gown and underwear as Powell directed. For the next three and a half hours, Powers had intercourse with her for all but about twenty minutes. He also used his mouth on her genitalia, and left “drool” on her body, from which his DNA later was identified.

Powers finally left the victim’s house around 7:00 a.m., and after hearing the back door shut, the victim left her house through a sliding glass door in her room. She knew her assailant was Powers, whom she had known all her life, and thought he would head toward his mother’s house three blocks away. She feared running into him outside, but she got to her car and drove away without encountering him.

Decided March 12, 2012.

Brandon Lewis, for appellant.

T. Craig Earnest, District Attorney, Mark C. Post, Assistant District Attorney, for appellee.

The victim called her friends on a cell phone she had left in the car, then drove to their house. Her friend called the police, who came and directed her to a rape crisis center, where a nurse examined her and removed biological evidence from her body to send to the GBI crime lab for DNA testing. The nurse was qualified as an expert in sexual assault examination and testified that the victim had injuries to her breast, thigh, and collarbone area, along with bruising, abrasions, and a laceration in and around her genitalia. These injuries were consistent with forcible sexual intercourse. An expert in forensic DNA analysis testified that the DNA profile found in a specimen removed from the victim’s body after the assault matched Powers’ DNA profile.

This evidence was sufficient to sustain Powers’ convictions for rape, aggravated sodomy, burglary, and false imprisonment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Adams and Blackwell, JJ., concur.


author: Boggs, Judge.

text:
    A11A2076.
    HEWELL et al. v. TROVER et al.
    (725 SE2d 853)
   Boggs, Judge.

In this medical malpractice action, plaintiffs appeal from a jury verdict and judgment in favor of the defendant physician and his professional corporation. In their sole enumeration of error, plaintiffs contend the trial court abused its discretion in excluding a portion of the testimony of the medical examiner who performed the autopsy on their decedent. The trial court properly held that plaintiffs had failed to disclose the proffered expert testimony in pretrial discovery. The trial court offered plaintiffs the option of declaring a mistrial or continuing with the trial without the undisclosed expert opinion, and they chose to continue. In addition, the disputed expert testimony was cumulative of the opinion testimony of another expert witness. For these reasons, we affirm.

At trial, the medical examiner testified that she was board certified in anatomic, clinical, pediatric, and forensic pathology. She performed the autopsy on the decedent and determined that the cause of death was MRSA pneumonia. Based upon her physical and microscopic examination, she concluded that the pneumonia had been present for at least a day. Plaintiffs’ counsel then asked her to assume that the decedent had burning in his chest during his office appointment with the defendant physician two days earlier. At this point, defendants objected, complaining that discovery responses had only identified the medical examiner as a witness with regard to the cause of death, not as a witness giving an expert opinion with regard to whether the pneumonia would have been present two days earlier.

Out of the presence of the jury, the trial court asked the medical examiner what her response would be to the question, and she responded, “What I am saying is if he gives me an assumption of a person having symptoms of pneumonia and I have autopsy findings of pneumonia, yes, it would be consistent with him having had pneumonia at that time.” The court then questioned plaintiffs’ counsel, who acknowledged that the medical examiner was not identified in response to defendants’ interrogatory seeking identification of each expert witness, and that plaintiffs did not disclose in writing to defendants that the medical examiner would be testifying as to whether the pneumonia was present and hence detectable at the time of the office visit. The trial court concluded that “there is violation of the discovery rules, that [the medical examiner] was not given as an expert witness in this area based upon the interrogatories.”

The trial court concluded that the appropriate remedy for the discovery violation was either the exclusion of the testimony or declaration of a mistrial, and gave plaintiffs’ counsel the option to choose one of the remedies. After receiving time to consult with his clients, counsel stated, “We are ready to go forward, your Honor.” After some discussion, the trial court again offered to “look at other remedies,” and plaintiffs again declined a mistrial.

Plaintiffs contend that the medical examiner’s opinion testimony as to the duration of the pneumonia was improperly excluded. OCGA § 9-11-26 (b) (4) (A) (i) provides:

A party may, through interrogatories, require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

Plaintiffs argue that the medical examiner was identified as a witness to the cause of death. This is correct, and she was allowed to testify with respect to the cause of death based upon her personal observations in the course of conducting the autopsy. But, as the trial court noted, the testimony plaintiffs sought to elicit went beyond the matters the medical examiner personally performed or observed and into the area of opinion testimony based upon a hypothetical posed by the questioner. Plaintiffs asked the witness to assume for the purpose of her opinion disputed facts (that the decedent had burning in his chest during the doctor’s appointment) based on material “acquired or developed in anticipation of litigation or for trial.” OCGA § 9-11-26 (b) (4).

A review of the record reveals that [plaintiffs] did not give [defendants] prior notice that this expert would testify .... OCGA § 9-11-26 (b) (4) (A) (i) allows a party to require the opposing party to identify all expert witnesses the opposing party plans to call at trial and to state the subject matter about which the expert will testify, the opinions the expert will render, and a summary of the grounds for each opinion. The trial court did not abuse its discretion by refusing to allow [plaintiffs’] expert to testify concerning a subject matter not revealed to [defendants].

Jones v. Livingston, 203 Ga. App. 99, 102-103 (4) (416 SE2d 142) (1992) (exclusion of accident reconstruction expert’s testimony on effect of failure to use seat belt not abuse of discretion); compare Stewart v. Odunukwe, 273 Ga. App. 380, 381 (615 SE2d 223) (2005) (hospital pathologist allowed to testify to conclusions regarding cause of medical condition observed in specimens he examined as part of patient’s treatment). The testimony sought by plaintiffs did not fall within the scope of the medical examiner’s contemplated testimony, but was an expert opinion not identified or summarized before trial.

We have held in other circumstances that exclusion of an expert’s testimony was “not an appropriate remedy for curing an alleged discovery omission,” and that “[t]he only appropriate remedy . . . was postponement of trial or a mistrial.” (Citations and footnote omitted.) Hunter v. Nissan Motor Co., 229 Ga. App. 729, 729-730 (1) (494 SE2d 751) (1997). But here, plaintiffs were offered the option of a mistrial by the trial court and declined to take it. “When an appellant could have tendered a timely motion for mistrial. . . but declined to do so, we generally will not grant more appellate relief than that actually prayed for at trial.” (Citation and punctuation omitted.) Williams v. Capitol Corporate Cleaning, 313 Ga. App. 61, 62 (1) (a), n. 1 (720 SE2d 228) (2011).

Decided March 12, 2012.

Erik H. Olson, for appellants.

Carlock, Copeland & Stair, Wade K. Copeland, for appellees.

Moreover, another medical expert witness testified, in extensive detail, to the same opinions and conclusions that plaintiffs unsuccessfully sought to prove through the medical examiner. “Any error in that exclusion was harmless because the excluded testimony was cumulative of other evidence.” Miller v. Miller, 288 Ga. 274, 276 (1) (705 SE2d 839) (2010); see also Muskett v. Sketchley Cleaners, 297 Ga. App. 561, 561-562 (1) (677 SE2d 731) (2009) (exclusion of physician’s testimony, even if error, harmless because merely cumulative of other medical experts’ testimony).

Judgment affirmed.

Mikell, P. J., and Dillard, J., concur.

       During the course of the discussion, the trial court elicited testimony that the medical examiner had never had a pediatric practice treating children, and she also testified that she had never done a pediatric residency but only “a specialty area” of pediatric pathology. On this basis, defendants argued that, had the expert and her testimony been disclosed in a timely fashion, they would have filed a motion to exclude it as outside her area of practice. See generally OCGA § 24-9-67.1.

       We previously have noted the apparent conflict between Hunter and Jones, supra. See Brown v. Hove, 268 Ga. App. 732, 735 (2), n. 7 (603 SE2d 63) (2004). It appears that the case before us is distinguishable from Hunter, because there the defendants deposed the expert and specifically questioned him regarding his opinions on the very issue as to which his testimony was later barred. The expert testified that he was unable to form an opinion because he had not yet received from the defendants all the necessary information on which to base his conclusions, and we noted that defendants could easily have sought further information after complying with discovery and before trial. Hunter, supra, 229 Ga. App. at 730, n. 3. In contrast, here the witness was never identified as an expert with respect to matters beyond her own observation, and defendants had no opportunity to examine or test an expert opinion elicited for the first time during trial. But we need not reach that issue because plaintiffs declined the offer of a mistrial.