text:
    A15A0501.
    ZARATE-MARTINEZ v. ECHEMENDIA et al.
    (772 SE2d 826)
   DOYLE, Presiding Judge.

Olga Zarate-Martinez filed a medical malpractice complaint against Dr. Michael Echemendia and related health care entities (“the Defendants”) seeking damages for injuries she sustained as a result of an allegedly negligent tubal ligation. The trial court granted the Defendants’ motion to strike Zarate-Martinez’s expert affidavit and dismissed her complaint on the ground that she failed to comply with OCGA § 9-11-9.1 because the expert affiant did not qualify under OCGA § 24-7-702 (c). Zarate-Martinez appeals, contending that the trial court erred because (1) affiant Nancy Hendrix, M.D., met the requirements of OCGA § 24-7-702, (2) witness Charles Ward, M.D., also met the requirements of OCGA § 24-7-702, (3) other evidence in the record created fact questions and established the “pronounced results” exception to the requirement for expert testimony, and (4) OCGA § 24-7-702 (c) (2) (A) and (B) are unconstitutional. Finding no reversible error, we affirm.

The complaint alleged that Dr. Echemendia was ZarateMartinez’s physician for several years, and on April 24, 2006, Dr. Echemendia performed an outpatient open laparoscopic tubal ligation procedure on Zarate-Martinez. Zarate-Martinez went home on the same day of the surgery. Over the next few days, Zarate-Martinez developed increasing pain, nausea, and fever. On April 28, 2006, Zarate-Martinez went to the emergency room, was admitted to the hospital, and underwent an exploratory laparotomy, which determined that the lower portion of Zarate-Martinez’s small intestine was perforated. The perforation was surgically repaired, and she remained in the hospital for further treatment until May 6, 2006.

On March 31, 2008, Zarate-Martinez sued Dr. Echemendia, Atlanta Women’s Health Group, P.C., (and LLC), and North Crescent Surgery Center, LLC, alleging that Dr. Echemendia negligently performed the tubal ligation and perforated her small intestine. Along with the complaint, Zarate-Martinez filed an affidavit from Errol Jacobi, M.D., purporting to comply with the expert affidavit requirement in OCGA § 9-11-9.1 (a). On December 14, 2010, the Defendants moved to strike the testimony of Dr. Jacobi and Dr. Ward, another expert identified by Zarate-Martinez, and for summary judgment. Following a response and supplemental response by ZarateMartinez, the trial court granted the motion to strike both experts’ testimony on the groundthattheydidnotqualifyunderOCGA § 24-7-702 (c). Instead of dismissing the case or entering judgment in favor of the Defendants, the trial court allowed Zarate-Martinez an additional 45 days to identify a competent expert witness. That order was signed on January 28, 2013, and filed February 21, 2013.

On April 2, 2013, Zarate-Martinez filed an affidavit of Nancy Hendrix, M.D., and after the Defendants moved to strike that affidavit, Zarate-Martinez filed a supplemental affidavit of Dr. Hendrix on May 24,2013. Following a hearing, on July 17,2014, the trial court granted the motion to strike both of Dr. Hendrix’s affidavits on the ground that they did not demonstrate adequate qualifications under OCGA § 24-7-702 (c). In light of Zarate-Martinez’s failure to fulfill the expert affidavit requirement in OCGA § 9-11-9.1 (a), the trial court dismissed her complaint. She now appeals.

1. Zarate-Martinez contends that the trial court erred because Dr. Hendrix’s affidavit and supplemental affidavit demonstrate that she met the requirements of OCGA § 24-7-702 (c). We disagree. OCGA § 24-7-702 (c) provides, in relevant part:

Notwithstanding the provisions of subsection (b) of this Code section and any other provision of law which might be construed to the contrary, in professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert:
(1) Was licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time; and
(2) In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:
(A) The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or
(B) The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue. .. .

If an expert’s affidavit fails to meet the requirements of OCGA § 24-7-702 (c), the affidavit is insufficient, and the complaint is subject to dismissal. Because the trial court conducted a hearing under OCGA § 24-7-702 (d) to determine the expert affiant’s competence to testify, the court’s determination on this issue is reviewed on appeal for abuse of discretion.

Here, Dr. Hendrix’s initial affidavit purported to satisfy the “active practice” requirement in subsection (c) (2) (A) by including the following statements:

I practice in the specialty of obstetrics/gynecology, and completed my residency in the OB/GYN Department of the Medical College of Georgia in 1998 ... I am in private practice [and] admitted to practice in Maryland [and] . . . Georgia ....
An open laparoscopic tubal ligation is the procedure performed by Dr. Echemendia .. . Dr. Echemendia’s performance in handling the procedure is the subject of my opinion stated in my affidavit.
I regularly practiced for more than 5 years before the performance of the tubal ligation performed by Dr. Echemendia in this case. As a medical student, intern, and gynecological resident I studied and learned the physiology of the female, the common and uncommon problems associated with the female physiology and pathology, and treatment generally accepted by the medical profession for problems requiring surgery. One of the surgical procedures taught to me was the tubal ligation, . . . and the precautions necessary to be taken to prevent injury to the patient... As part of my active practice, I have [published] an article . . . titled “Sterilization and its Consequences ....” I performed open laparoscopies on patients over the course of years of my internship, residency, and private practice, and am experienced in the procedure.

Dr. Hendrix’s supplemental affidavit stated as follows, in relevant part:

By the former statement referring to “open laparoscopies” I was referring to tubal ligations employing the “open laparoscopy” method used in performance of the tubal ligation. This is the method Dr. Echemendia used, and this is a method I used in many tubal ligations which I have performed for patients over the course of my active private practice, including performing many tubal ligations each of the 5 years before the “open laparoscopy” tubal ligation Dr. Echemendia performed on Olga Zarate-Martinez on April 24, 2006. I have experience and knowledge of the tubal ligation including open laparoscopies . . . My use of “open laparoscopies” in the original affidavit referred to tubal ligations. My use of “open laparoscopies” in the last sentence of the above [quoted] paragraph [] referred to the same method of tubal ligation employed by Dr. Echemendia.
I was in active practice, . . . and performed tubal ligations many times in each of the last five years prior to the tubal ligation performed on Ms. Zarate on April 24, 2006____

The trial court held that, even after considering the supplemental affidavit, Dr. Hendrix’s affidavits did not meet the standard in OCGA § 24-7-702 (c) (2) (A). The trial court observed that the original affidavit only stated that Dr. Hendrix “performed open laparoscopies on patients,” without explaining which type of open laparoscopy procedure and without quantifying the number of open laparoscopic tubal ligation procedures she had performed over the relevant time period. The trial court noted that “[o]pen laparoscopy is not a surgery itself — it is a surgical technique... used for numerous gynecological surgeries, not just tubal ligations, and for other types of abdominal surgeries, including bariatric surgeries.” Based on this record, the trial court did not abuse its discretion by finding that merely stating that a doctor has performed a procedure, without more specificity as to frequency or type, is insufficient under OCGA § 24-7-702 (c) (2) (A).

With respect to the supplemental affidavit, the trial court held that it did not adequately address the first affidavit’s deficiencies. The trial court noted that the supplemental affidavit stated that Dr. Hendrix “performed tubal ligations many times in each of the last five years prior to” Zarate-Martinez’s surgery. But the court explained that the term “many” was too vague: “the Court has no idea what the term ‘many’ means and cannot, therefore, assess whether Dr. Hendrix has the ‘appropriate level of knowledge. . . .’”

As we noted above, OCGA § 24-7-702 (c) (2) (A) provides that expert testimony in a medical malpractice case is admissible “only if” the expert can demonstrate having been regularly engaged in the active practice “for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure.”

Here, the essence of Dr. Hendrix’s supplemental affidavit is that she performed “many [open laparoscopic] tubal ligations each of the 5 years before the” procedure at issue. Absent further clarity as to what Dr. Hendrix meant by “many,” the trial court was within its discretion to rule that the affidavit failed to demonstrate an appropriate level of knowledge in performing the procedure in three of the five years prior to Zarate-Martinez’s procedure. The statute is explicit that the “appropriate level of knowledge” is to be “determined by the trial judge,” and the trial court noted that it had no reliable way to gauge the affiant’s concept of “many” in the context of ZarateMartinez’s burden under OCGA § 24-7-702. In light of the vagueness of the affidavit, we discern no abuse of the trial court’s discretion in granting the motion to strike Dr. Hendrix’s affidavit.

2. Zarate-Martinez next contends that the trial court erred by granting the Defendants’ motion to strike the testimony of Dr. Ward on the ground thathecouldnotmeettherequirementofOCGA § 24-7-702 (c) (2) (B). The record shows that Dr. Ward was identified by the plaintiff as an expert, and he was deposed by the Defendants, but he never submitted an affidavit in support of the complaint in accordance withOCGA § 9-11-9.1 (a). The requirement in OCGA § 9-11-9.1 (a) is plain: “the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” Absent a timely filed affidavit from Dr. Ward purporting to meet that requirement, Dr. Ward’s qualifications are not material to this appeal.

3. Zarate-Martinez also argues that the trial court erred by dismissing her case because (a) there was other evidence from the Defendants’ experts that created fact questions, and (b) the “pronounced results” exception obviated the affidavit requirement in OCGA § 9-11-9.1 (a).

(a) Other evidence. Zarate-Martinez points to certain statements made by expert witnesses identified by the Defendants which allegedly create fact questions as to causation and a breach of the standard of care. But this overlooks the mandatory language of OCGA § 9-11-9.1 (a) requiring plaintiffs to file affidavits with their complaints. “The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed, not to require a plaintiff to prove a prima facie case entitling him to recover and capable of withstanding a motion for summary judgment before the defendant need file his answer.” Thus, because Zarate-Martinez did not satisfy the affidavit requirement, any argument about factual disputes arising elsewhere in the record is misplaced.

(b) “Pronounced results”exception. This exception refers to those

exceedingly rare cases wherein the medical questions presented concern matters which a jury can be credited with knowing by reason of common knowledge or the possibility of actionable medical negligence appears so clearly from the record that the plaintiff-patient need not produce expert medical testimony concerning the applicable standard of care to avoid summary judgment for a defendant-doctor testifying as to his own lack of negligence.

For example, when a physician punctured a patient’s lung while intending only to give a shoulder injection for pain relief, this Court held that “expert testimony [was not] necessary to establish a prima facie case of medical malpractice and submission of the case to a jury” was authorized on the record without further expert testimony.

But Zarate-Martinez has failed to cite to any case holding that the statutory requirement for an expert affidavit in OCGA § 9-11-9.1 (a) is obviated in such a case, and we decline to so hold here. The General Assembly adopted OCGA § 9-11-9.1 (a) as a pleading requirement, which operates separate and apart from the evidentiary burden on summary judgment and at trial.

Furthermore, there is evidence in the record that the injury alleged here, while unintended, is a “known risk” and “recognized complication” of a tubal ligation. In light of this and the facts alleged, we conclude that this is not one of the “exceedingly rare” cases in which a jury could determine whether the standard of care was breached simply by common knowledge.

4. Zarate-Martinez finally contends that the trial court erred by striking the expert affidavits because OCGA § 24-7-702 (c) (2) is unconstitutional. But appellate courts will “not reach constitutional questions which have not been considered and distinctly ruled on by the trial court.” Zarate-Martinez challenges OCGA § 24-7-702 (c) (2) on the grounds that it denied her right to a jury trial, denied her equal protection of the laws, violated the separation of powers, and was a “special law” not of a general nature. While these arguments were presented to the trial court, the trial court, in a footnote, stated only that

Zarate-Martinez challenges the constitutionality of Section 702. “[T]he constitutionality of a statute is presumed, and... all doubts must be resolved in favor of its validity.” Albany Surgical, P.C. v. Georgia Dept. of Community Health, 278 Ga. 366, 368, 602 SE2d 648, 651 (2004). Daubert has survived constitutionality challenges, and the Court declines to hold that Section 702 violates due process requirements or is otherwise unconstitutional.

Whereas the Daubert rule is codified in OCGA § 24-7-702 (b), Zarate-Martinez’s challenges are to the provisions in OCGA § 24-7-702 (c), which are not found in Daubert. Accordingly, the trial court, by generally presuming OCGA § 24-7-702 to be valid, did not announce a distinct ruling on the challenged subsection, nor did it address the particular constitutional arguments advanced on appeal. Even if some other constitutional issue was considered, “[bjecause neither the trial court’s discussion nor its written order mention the . . . issue[s challenged on appeal], it does not appear that such issue[s] [were] distinctly ruled on by the trial court. Accordingly, [they are] not preserved for appeal.”

Judgment affirmed.

Phipps, C. J., and Boggs, J., concur.

Decided May 20, 2015

Beverly B. Bates, for appellant.

Huff, Powell & Bailey, Daniel J. Huff, Taylor C. Tribble, for appellees.

       OCGA § 9-11-9.1 (a) provides, in relevant part, that in medical malpractice actions, “the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”

       See OCGA § 9-11-9.1 (e) (authorizing trial court to allow a plaintiff to timely cure her defective pleading under certain conditions). Zarate-Martinez does not challenge the trial court’s ruling that Dr. Jacobi was unqualified to testify in this case.

       “[BJecauseOCGA § 24-7-702 is ‘substantively identical’to its predecessor statute, former OCGA § 24-9-67.1, cases decided under the former statute offer useful guidance when analyzing the current version of the statute.” Dempsey v. Gwinnett Hosp. System, 330 Ga. App. 469, 471, n. 3 (765 SE2d 525) (2014).

       The trial court considered Dr. Hendrix’s supplemental affidavit despite the Defendants’ objection that it was not filed within the 45-day time limit allowed by the order granting their motion to strike. In light of our ruling affirming the trial court’s analysis of the substance of that affidavit, we need not consider whether that affidavit was untimely.

       (Emphasis supplied.)

       See Craigo v. Azizi, 301 Ga. App. 181, 182 (1) (687 SE2d 198) (2009).

       See id. at 182-183 (1).

       Because the trial court considered both affidavits, we do as well.

       This is the same as the immediately preceding quoted paragraph in this opinion.

       See, e.g., Akers v. Elsey, 294 Ga. App. 359, 362 (2) (670 SE2d 142) (2008). This language was carried over into the current Code from the Tort Reform Act of 2005, which was adopted “to help reduce the cost of liability insurance for health care providers and ensure citizens continued access to care... [, and more specifically] was part of the legislature’s effort to impose more exacting requirements on expert witnesses in medical malpractice cases.” Hankla v. Postell, 293 Ga. 692, 695-696 (749 SE2d 726) (2013).

        See Akers, 294 Ga. App. at 362 (2) (affirming motion to exclude expert testimony because the expert “simply averred that he had practiced general surgery within the previous five years and had ‘performed many’ [of the relevant] laparoscopic procedures”); Nathans v. Diamond, 282 Ga. 804, 807 (1) (654 SE2d 121) (2007) (affidavit failed to show that witness had personally practiced the particular conduct at issue “with sufficient frequency to establish appropriate level of knowledge”).

       (Punctuation omitted.) Bowen v. Adams, 203 Ga. App. 123, 124 (416 SE2d 102) (1992).

        Killingsworth v. Boon, 167 Ga. App. 653, 656 (307 SE2d 123) (1983).

       Cf. Nelson v. Parrott, 175 Ga. App. 307 (1) (333 SE2d 101) (1985) (unwanted pregnancy resulting from failed sterilization was a known risk and not subject to the pronounced results exception).

       (Punctuation omitted.) East Ga. Land & Dev. Co. v. Baker, 286 Ga. 551, 555 (6) (690 SE2d 145) (2010).

       (Punctuation omitted.) Id. at 556 (6). See also McAllister v. State, 325 Ga. App. 583, 586 (2) (754 SE2d 376) (2014) (failure to obtain distinct ruling on constitutional challenge to a statute precludes appellate review).


source: Caselaw Access Project

author: McMlLLIAN, Judge.

license: Public Domain

text:
    A15A0603.
    GALLOWAY v. THE STATE.
    (772 SE2d 832)
   McMlLLIAN, Judge.

Appellant Terry Nelson Galloway was charged with possession of oxycodone with intent to distribute (Count 1), possession of dihydrocodeinone (hydrocodone) with intent to distribute (Count 2), and possession of clonazepam with intent to distribute (Count 3). The trial court granted his motion for directed verdict on Count 3, and a jury convicted him of Count 2 and found him not guilty of Count l. After sentencing, he filed a motion for new trial, which was denied. He appeals, arguing in his sole enumeration of error that the trial court erred by denying his motion to suppress the evidence of contraband discovered in his apartment during the execution of a search warrant because the warrant was based upon information provided by a confidential informant whose reliability was not properly demonstrated.

In Georgia, our law is clear that a magistrate may issue a search warrant only upon facts sufficient to support probable cause that a crime is being committed or has been committed. OCGA § 17-5-21 (a); State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237) (2009).

The magistrate’s task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Our duty in reviewing the magistrate’s decision in this case is to determine if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrants. A magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court. Even doubtful cases should be resolved in favor of upholding a magistrate’s determination that a warrant is proper. Sullivan v. State, 284 Ga. 358, 361 (667 SE2d 32) (2008).

(Punctuation omitted.) Prince v. State, 295 Ga. 788, 792 (2) (a) (764 SE2d 362) (2014); Palmer, 285 Ga. at 78.

The State has the burden of proving that a search and seizure conducted pursuant to a warrant was lawful, including the burden of proving the reliability of an informant if the application for the warrant is based upon information supplied by an informant. Sutton v. State, 319 Ga. App. 597 (737 SE2d 706) (2013); Dearing v. State, 233 Ga. App. 630, 632 (505 SE2d 485) (1998) (in response to a motion to suppress evidence seized pursuant to a search warrant, the State has the burden of proving that an informant who provided information to theaffiantapplyingforthesearchwarrantwasreliable);OCGA § 17-5-30 (b). However, “the sufficiency of information obtained from an informant is not to be judged by any rigid test.” (Citation and punctuation omitted.) Zorn v. State, 291 Ga. App. 613, 615 (2) (662 SE2d 370) (2008). Rather, as a general matter, “probable cause is determined by the totality of the circumstances surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability.” (Citation omitted.) Bryant v. State, 288 Ga. 876, 893 (13) (a) (708 SE2d 362) (2011). However, “[a] deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” (Citation omitted.) Id.

The record shows that the commanding officer of the Lookout Mountain Judicial Circuit Drug Task Force applied for a warrant to search the apartment where Galloway lived with a roommate based on information he obtained from a confidential informant. In support of his application, the officer presented an affidavit to the magistrate averring that on July 6, 2009, he had received information from a confidential source who had entered the apartment of Terry Nelson Galloway and a certain other individual within the past five days and that while the informant was there he observed white powder and a number of straws, which are commonly used to ingest illegal drugs, as well as a silver handgun. The affidavit went on to state that the informant had also observed a small child, three to four years old, inside the residence and also a three to four-month-old female infant. The informant also provided the additional information that a maroon Jeep Cherokee was parked outside the building.

The affidavit went on to contain averments that on that same date, the affiant had contacted the Georgia State Probation offices and confirmed that the other occupant of the apartment is a convicted sexual offender and on active probation until February 2019. Further, the officer averred that the State Probation officer confirmed that Galloway was on parole and scheduled for probation on September 1, 2009.

The affidavit also averred that on July 7, 2009, the affiant contacted a certain Fort Oglethorpe Police Department (“FOPD”) detective regarding this investigation, and that the FOPD detective told him that in May 2009, he had also received information from a confidential source that Galloway was illegally selling and distributing the controlled substances Hydrocodone and Valium from the same address. And lastly, the affidavit contained information that on July 7, 2009, the FOPD detective had personally observed and confirmed that a maroon Jeep Cherokee was parked in front of the apartment at that address.

At the motion to suppress hearing, the officer testified that he disclosed additional information to the magistrate which was not contained in the affidavit, explaining that the failure to include this additional information was at least in part because he was trying to protect the identity of his source. “Testimony from a motion to suppress may supplement the four corners of an affidavit in order for a trial court to determine what the magistrate knew at the time of the issuance of the warrant[.]” Pailette v. State, 232 Ga. App. 274, 277 (501 SE2d 603) (1998). And “[i]t is well established that the trial court may consider oral testimony presented to a magistrate in support of the issuance of a warranty Further, i]t is also clear that our courts have, on occasion, recognized the affiant’s desire to protect the identity of a confidential informant by omitting certain details from the affidavit.” Pettus v. State, 237 Ga. App. 143, 144 (2) (514 SE2d 901) (1999). E.g., Browner v. State, 265 Ga. App. 788, 791 (1) (595 SE2d 610) (2004) (same); Roberson v. State, 246 Ga. App. 534, 537 (1) (540 SE2d 688) (2000) (“oral testimony may be considered in support of the issuance of a warrant, in addition to information presented by affidavit”); York v. State, 242 Ga. App. 281, 293 (7) (528 SE2d 823) (2000) (“based on the totality of the circumstances,... the information in the affidavit — as well as that presented to the magistrate orally — provided a sufficient basis for finding probable cause”); Gibson v. State, 223 Ga. App. 103, 104 (2) (476 SE2d 863) (1996) (“The well-established rule permits consideration of evidence concerning oral testimony provided to the magistrate.”). The officer testified that this additional information he provided to the magistrate included facts concerning how the confidential informant knew Galloway and how the informant came to be in Galloway’s apartment. Additionally, the officer told the magistrate that he knew the confidential informant, that on several occasions in the past the informant had provided him with information that he had found to be reliable, and that he still considered the informant to be reliable.

As we have previously cautioned, police officers seeking a warrant should provide the magistrate or trial judge with all information at their disposal concerning a source’s reliability. See State v. Lejeune, 276 Ga. 179, 180-181 (1) (576 SE2d 888) (2003). Although it appears that the police officer in this case possibly could have provided the magistrate with more detail concerning the informant’s past reliability such as the type of information the informant provided on previous occasions, the use made of that information and whether it was in fact useful, and the time frame of the past information in comparison to the more recent information, see Zorn, 291 Ga. App. at 614 (1), considering the totality of the circumstances provided to the magistrate, including information about the confidential informant’s relationship with Galloway and how he came to be in his apartment; that the officer knew the informant and found his information to be reliable in the past; the recent time frame for when the informant had been in the apartment and viewed suspected drugs and paraphernalia; the fact that the informant told the officer that there was a gun in the residence; and the officer confirmed that the occupants were convicted felons, we conclude that the information relayed to the magistrate provided a substantial basis for the magistrate’s finding of probable cause. Accordingly, the trial court did not err by denying Galloway’s motion to suppress. E.g., Price v. State, 297 Ga. App. 501, 504 (677 SE2d 683) (2009); Claire v. State, 247 Ga. App. 648, 649 (544 SE2d 537) (2001); Roberson, 246 Ga. App. at 535 (1); Mitchell v. State, 239 Ga. App. 735, 736 (1) (521 SE2d 873) (1999); Sawyer v. State, 227 Ga. App. 493, 494 (2) (489 SE2d 518) (1997).

Decided May 20, 2015.

Sean J. Lowe, for appellant.

Herbert E. Franklin, Jr., District Attorney, Deanna Brock, Alan C. Norton, Assistant District Attorneys, for appellee.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       Galloway’s brief states he was convicted of both Counts 1 and 2, but the transcript, written jury’s verdict, and sentence all reflect that he was convicted only on Count 2.

       We note that the trial court did not make any specific findings of fact in the order denying the motion to suppress. Hughes v. State, 296 Ga. 744 (770 SE2d 636) (2015) (stating standard of appellate review when trial court makes express findings of fact in an order denying motion to suppress).

       However, it is equally clear that neither this Court nor the trial court can consider information that was not made available to the judge who issued the warrant. Lyons v. State, 258 Ga. App. 9, 10 (1) (572 SE2d 632) (2002).

       The officer also testified that he corroborated the confidential informant’s information by assigning agents to drive by the apartment to confirm the location of the apartment and the vehicles parked there. However, corroboration of such “minor” public facts such as the outward appearance or location of a residence or vehicle is not sufficient to demonstrate reliability. E.g., Land v. State, 259 Ga. App. 860, 862 (578 SE2d 551) (2003); Robertson v. State, 236 Ga. App. 68, 70 (510 SE2d 914) (1999). Further, for purposes of our analysis here, we do not consider the hearsay information provided by the other officer from another unnamed source since nothing about that source’s reliability was included in the affidavit or otherwise provided to the magistrate.


author: MCFADDEN, Judge. DILLARD, Judge,

text:
    A15A0380.
    PADILLA v. MEDRANO.
    (772 SE2d 836)
   MCFADDEN, Judge.

Alexander Padilla appeals the order granting summary judgment to Ermes Medrano in this personal injury action. He argues that the trial court erred by refusing to substitute Medrano Flooring and General Contractors, Inc. as the defendant. We vacate and remand the case to the trial court to rule on Padilla’s motion to substitute before ruling on Ermes Medrano’s motion for summary judgment, given the trial court’s finding in its order granting summary judgment that Medrano Flooring is the proper party.

Padilla filed a personal injury action against Ernesto Cruz-Martinez and Ermes Medrano d/b/a Medrano Flooring and General Contractors, Inc. arising out of a collision between one vehicle and a retaining wall. Padilla was a passenger, Cruz-Martinez was the driver, and Ermes Medrano was the owner of the vehicle. Cruz-Martinez moved for summary judgment. The trial court granted summary judgment to Cruz-Martinez on the ground that he and Padilla were co-employees and Padilla’s action was thus barred by the exclusive remedy provision of the Workers’ Compensation Act, OCGA § 34-9-11 (a). In October 2013, we affirmed the grant of summary judgment pursuant to Court of Appeals Rule 36. Padilla v. Cruz-Martinez, 324 Ga. App. XXIV (2013).

In December 2013, Ermes Medrano moved for summary judgment on multiple grounds, including that Padilla’s action against him was also barred by the exclusive remedy provision, because Padilla was injured in the scope of his employment with Medrano Flooring and Ermes Medrano was his supervisor and co-employee. In response, Padilla moved to substitute Medrano Flooring and General Contractors, Inc. as the party defendant in place of Ermes Medrano d/b/a Medrano Flooring and General Contractors, Inc.

The trial court did not rule on Padilla’s motion to substitute. The court granted Ermes Medrano’s motion for summary judgment, holding that “because [Padilla] was an employee of Medrano Flooring, the proper party to this litigation is Medrano Flooring and not Defendant Medrano.” The court further held:

Based on the record, and Defendant Medrano’s own admission,... [Padilla] was in fact an employee of Medrano Flooring at the time of the incident. As such, The Workers’ Compensation bar under OCGA § 34-9-11 would apply. [Padilla’s] sole remedy would be to apply for workers’ compensation, and not a tort action against his employer.

Finally, the court held that Padilla had not submitted sufficient evidence to pursue his negligent entrustment, hiring, retention and supervision claims. Padilla filed this appeal.

1. Laches.

Padilla argues that Medrano’s motion for summary judgment was barred by laches, as he should have filed the motion when Cruz-Martinez filed his. He cites no statutory or case authority, and we have found none, where laches has been applied to bar the filing of a motion for summary judgment. OCGA § 9-11-56 (b), however, provides that “[a] party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.” (Emphasis supplied.) “ ‘At any time’ obviously means at any time before a trial begins in which a final judgment is to be rendered ” Braselton Bros. v. Better Maid Dairy Products, 110 Ga. App. 515, 516 (1) (139 SE2d 124) (1964). See also Uniform Superior Court Rule 6.6 (“Motions for summary judgment shall be filed sufficiently early so as not to delay the trial. . . .”). Under the statute, Medrano’s motion for summary judgment was timely.

2. Adding Medrano Flooring and General Contractors, Inc. as a party.

Padilla argues that the trial court erred by denying his motion to substitute Medrano Flooring and General Contractors, Inc. as the defendant. The record contains no ruling on the motion. Nonetheless, the trial court ruled in the order granting summary judgment that Medrano Flooring was the proper defendant, and it granted Medrano summary judgment for this reason.

Decided May 21, 2015.

Jimmy Hwang, for appellant.

The trial court’s summary judgment order resolved all claims against the only defendant then in the lawsuit and accordingly is at least arguably a final judgment. See Paine v. Nations, 301 Ga. App. 97, 99 (1) (686 SE2d 876) (2009) (a trial court’s order is a final judgment if it constitutes the court’s final ruling on the merits of the action, even if it does not state that it is final). We therefore hold, under the particular, unique circumstances of this case, that the trial court should have addressed Padilla’s motion to add Medrano Flooring before granting Medrano’s motion for summary judgment. This is particularly true in light of the trial court’s express finding that Medrano Flooring is the proper party.

Given this resolution, we do not address Padilla’s argument that Medrano is estopped from claiming that the business, not Medrano individually, was his employer. In support of the argument, Padilla relies on a document attached to his response to Medrano’s motion for summary judgment, a notice to controvert Padilla’s claim for workers’ compensation benefits in which Medrano Flooring asserted that Padilla was not entitled to workers’ compensation benefits because he “was not employed with the employer at the time of the accident.”

We observe that the unauthenticated document is not competent evidence for purposes of summary judgment. White v. City of Atlanta, 248 Ga. App. 75, 76, n. 3 (545 SE2d 625) (2001). But should the trial court add Medrano Flooring as a defendant, Padilla could seek introduction of the notice to controvert as Medrano Flooring’s admission that Padilla was not its employee. See Foster v. State, 157 Ga. App. 554, 555-556 (278 SE2d 136) (1981).

Judgment vacated and case remanded.

Ellington, P. J., concurs. Dillard, J., concurs fully in Division 1 and in judgment only in Division 2.

DILLARD, Judge,

concurring in judgment only.

I concur fully as to Division 1 of the majority’s opinion. I concur in judgment only as to Division 2 because I do not agree with all that is said in that division of the majority opinion. Thus, the majority’s opinion in Division 2 decides only the issues presented in that division and may not be cited as binding precedent in future cases. See Court of Appeals Rule 33 (a).

Gray, Rust, St. Amand, Moffett & Brieske, Michael D. St. Amand, for appellee.


author: McFadden, Judge.

text:
    A15A0701.
    A15A0702.
    BROOKS v. THE STATE. JONES v. THE STATE.
    (772 SE2d 838)
   McFadden, Judge.

After a joint jury trial, Kevin Dale Brooks was convicted of armed robbery, burglary, aggravated assault, two counts of false imprisonment, and possession of cocaine, and Brian Jones was convicted of armed robbery, burglary, aggravated assault, two counts of false imprisonment, and theft by taking. The trial court denied the appellants’ motions for new trial, and they filed these appeals, which we review together.

Brooks argues that the evidence does not support the convictions, but we find that the evidence was sufficient. Brooks also argues that his convictions must be reversed because certain witnesses perjured themselves, but he has failed to show perjury. Brooks further argues that his convictions must be reversed because after his trial, one of the police officers who testified against him was convicted of making false statements, but the officer’s conviction was not in any way related to her testimony at Brooks’s trial. Jones argues that his convictions must be reversed because the indictment on which they are based is void, but Jones waived this argument by failing to timely raise it. Jones also argues that the trial court erred by denying his motion for mistrial, but we find that the court did not abuse his discretion in admonishing the prosecutor rather than granting a mistrial. Jones further argues that the trial court should have granted his motion to sever, but we find that the trial court did not abuse his discretion in denying the motion. Both defendants argue that they received ineffective assistance of counsel, but we find that neither has shown both harm and prejudice. We therefore affirm the convictions.

1. Sufficiency of the evidence.

When a defendant challenges the sufficiency of the evidence supporting his criminal 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 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original). It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to 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 [sjtate’s case, the jury’s verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citations and punctuation omitted).

Viewed in this light, the evidence shows that when the victim pulled into his driveway after being out for the evening, Brooks and Jones, who were armed, approached him from the side of the house. The men said, ‘You know what this is.” The victim, Brooks, and Jones entered the victim’s house, and the men demanded money, drugs, and jewelry. The men began searching the victim’s house and took his jewelry and phone. Jones went into a bedroom where the victim’s 12-year-old son was sleeping. The boy woke up, and Jones threatened him with a pistol and took his phone. Jones kept the boy in his bedroom through the night. The boy heard another man demanding money, jewelry, and drugs from his father.

The next morning, in order to get the men to leave, the victim told them that he could withdraw money for them from his credit union account. Brooks and the victim drove in the victim’s car to downtown Savannah, and Jones stayed with the victim’s son at the house. The victim drove through the city, hoping to encounter a police officer, while Brooks kept him at gunpoint. The victim saw a police officer and began driving toward her to get her attention. The officer pulled her weapon. The victim jumped out of the rolling car, threw up his hands, and said, “They got a gun!” The car crashed into a building, and Brooks fled. The victim told the officer that his son was being held captive at his house. She called for assistance. Officers then saw Brooks enter the back door of a restaurant. The SWAT team found Brooks hiding behind a file cabinet in the restaurant’s office. When an officer patted down Brooks, he found in Brooks’s pocket a Crown Royal bag containing 10.5 grams of cocaine and the victim’s jewelry.

In the meantime, police arrived at the victim’s house. Jones hid in the attic. The boy exited the house, and the police took him to the station, where he was reunited with his father. Eventually Jones exited the house, got into the victim’s girlfriend’s car, backed it out, and fled. The street was a dead-end, and Jones crashed the car into some trees. He exited the car and fled on foot. He was eventually caught in the woods.

We conclude that the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Brooks and Jones were guilty of the crimes of which they were convicted. Jackson, supra, 443 U. S. at 319 (III) (B).

2. The indictment.

Jones argues that his convictions must be reversed because the indictment under which he was charged was void, as one of the grand jurors who returned the indictment was a convicted felon. By failing to timely raise it, Jones has waived this attack on the indictment.

Under OCGA § 15-12-60 (c), “Any person who has been convicted of a felony in a state or federal court who has not had his or her civil rights restored... shall not be eligible to serve as a grand juror.” But “to be cognizable, most attacks on an indictment, including a challenge to the composition of the grand jury that returned it, must be brought within ten days of arraignment, unless the trial court extends that deadline.” Bighams v. State, 296 Ga. 267, 269 (2) (765 SE2d 917) (2014) (citations and footnote omitted) (rejecting as untimely appellants’ challenge to indictment that was allegedly void because of composition of the grand jury). See also Hill v. Stynchcombe, 225 Ga. 122, 127 (10) (166 SE2d 729) (1969) (challenges to composition of grand jury must be made within specified time or are waived); Lumpkin v. State, 152 Ga. 229, 231 (109 SE 664) (1921) (challenge to grand jury based on service of disqualified person must be made within specified time frame, and “cannot be made for the first time after verdict”).

Jones argues that he did not waive his attack on the indictment because the indictment was void, which rendered the judgment of conviction void, and a void judgment may be attacked at any time. Jones has cited no authority to support his assertion that a judgment of conviction entered upon an indictment that is allegedly void due to composition of the grand jury is itself void. But in Garza v. State, 325 Ga.App. 505, 506 (1) (753 SE2d 651) (2014), we held that the fact that the defendant’s convictions arose from an indictment void due to an improperly constituted grand jury did not render his sentence void. Moreover, in Bighams, supra, our Supreme Court rejected the appellants’ challenge to their convictions based on an allegedly void indictment, concluding that because they failed to make it within ten days of arraignment, the appellants waived their argument that an indictment was void due to the illegal composition of the grand jury.

3. Severance.

Jones argues that the trial court erred by denying his motion to sever his trial from that of Brooks because the joint trial likely led to juror confusion, evidence of another crime was presented against Brooks, they presented antagonistic defenses, and he was unable to fully present his statement to police. The claim is without merit.

In ruling on a severance motion, the court should consider: (1) the likelihood of confusion of the evidence and law; (2) the possibility that evidence against one defendant may be considered against the other defendant; and (3) the presence or absence of antagonistic defenses. And the burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing that a joint trial would lead to prejudice and a consequent denial of due process. In this case, we conclude that [Brooks] has made no clear showing of prejudice and a consequent denial of due process.

Nwakanma v. State, 296 Ga. 493, 498 (3) (768 SE2d 503) (2015) (citations and punctuation omitted).

Jones argues that each defendant was charged with some separate offenses: Jones was charged with theft by taking an automobile, and Brooks was charged with kidnapping (of which he was acquitted). But it is unlikely the jurors were confused

because only [two] defendants were tried and the law and evidence that applied to each of them were substantially the same. They were jointly tried for almost the same offenses, which involved [almost] the same witnesses, whose credibility the co-defendants jointly attacked, and the [s]tate’s evidence indicated that they acted in concert. In addition, the trial court properly instructed the jury that it was to independently determine the guilt or innocence of each defendant as to each count, and the court provided separate verdict forms for each defendant in order to avoid the potential for confusion.

Nwakanma, 296 Ga. at 498 (3) (citations omitted).

Jones argues that the jury could have concluded that the admission of evidence of another crime committed by Brooks, admitted under OCGA § 24-4-404 (b), also involved Jones. “But such evidence did not directly implicate [Jones], and the trial court gave appropriate limiting instructions, indicating that the similar transaction evidence could be considered only as to [Brooks].” Nwakanma, 296 Ga. at 498 (3).

Jones argues that he was entitled to severance because a detective testified about Jones’s statement, but Jones’s references to Brooks were omitted, which deprived Jones of the opportunity of putting his statement in the proper context by showing that Brooks, not Jones, was the main actor. The two references to Brooks in Jones’s statement were that although Jones never saw it, Brooks “had to have a gun ... ’cause [the victim] kept talking about killing, killing,” and that when Brooks left with the victim in the morning it was to get the “coke.” These statements would have been merely cumulative of other evidence in the record showing that Brooks had a gun and that Brooks left with the victim to get something, albeit money instead of cocaine. The omission of statements that would have been merely cumulative did not mandate severance. Brown v. State, 260 Ga. App. 77, 79 (1) (c) (579 SE2d 87) (2003).

Jones argues that his defense was antagonistic to Brooks’s defense. He points out that in his closing argument, Brooks’s trial counsel conceded that Brooks committed the crimes of false imprisonment and burglary, and argued that the issue for the jury to resolve was whether Brooks committed kidnapping and armed robbery. Jones’s defense, however, was that while “Jones voluntarily went with Brooks to obtain cocaine from [the victim], that Jones never expected things to unfold as they did and that he simply remained at the residence while Brooks turned the encounter to be fronted some cocaine into the disaster that actually occurred.” In no way, however, does this defense conflict with Brooks’s defense; Jones does not deny that the events at the victim’s house occurred, as conceded by Brooks; he just contends that he did not intend for them to happen.

Moreover, the evidence against [Jones] implicated him as a party to the [armed robbery, burglary, aggravated assault, and false imprisonment] committed by [Brooks], so we fail to see how a defense by [Jones] implicating [Brooks] would have benefitted him____Under these circumstances, [Jones] has failed to carry his burden of making a clear showing that the joint trial was prejudicial and a denial of due process.

Dorsey v. State, 331 Ga. App. 486, 491 (3) (771 SE2d 167) (2015). Consequently, we conclude that “the trial court did not abuse [his] discretion in denying [the] motion to sever.” Jones v. State, 277 Ga. App. 185, 188 (626 SE2d 142) (2006) (citation omitted).

4. Jones’s motion for mistrial.

Jones argues that the trial court abused his discretion by denying his motion for mistrial. When defense counsel was cross-examining the detective about Jones’s statement described above, the prosecutor objected on the basis of “the rule of completeness” and accused defense counsel of “piecemealing” the statement. Defense counsel moved for a mistrial on the ground that the prosecutor’s objection implied that defense counsel was misrepresenting the statement. The trial court denied the motion for mistrial, but, in front of the jury, admonished the prosecutor that an objection based on the rule of completeness was improper. “Whether to grant a motion for mistrial is within the trial court’s sound discretion, and the trial court’s exercise of that discretion will not be disturbed on appeal unless a mistrial is essential to preserve the defendant’s right to a fair trial.” Grissom v. State, 296 Ga. 406, 414 (6) (768 SE2d 494) (2015) (citation and punctuation omitted). Jones has not shown that the trial court abused his discretion. Taylor v. State, 326 Ga. App. 27, 32 (3) (755 SE2d 839) (2014) (trial court did not abuse discretion in denying motion for mistrial because of prosecutor’s allegedly improper comment on the evidence and instead instructing prosecutor not to “supply an editorial”).

To the extent Jones argues that the trial court erred by denying his request to introduce his statement to police in its entirety, he does not point to the record where he made such a request.

5. Perjury.

Brooks argues that his conviction must be reversed because of perjured testimony from state’s witnesses. This argument lacks merit.

First, Brooks argues that a detective who testified at the hearing to determine the admissibility of similar transaction evidence perjured himself. Specifically, that detective testified that when Brooks exited the victim’s car, after the victim abandoned it when he saw the police officer, Brooks had a gun in his hand and he fled with it. When asked whether Brooks explained what he had done with the gun, the detective testified that “I believe he said he just threw it down.” Brooks contends that this testimony was perjured, because he never admitted to the detective that he had a gun. To support his claim, Brooks points solely to his own testimony at the motion for new trial hearing. He offers no other evidence that the officer lied or perjured himself.

Second, Brooks argues that at trial, a similar transaction witness committed perjury when he testified that he had picked out Brooks from a photo lineup, but at the scene he told an officer that the perpetrator “[h]ad on a tee shirt covering their face and had do rags.” Brooks does not even argue that the witness did not pick him out from a photo lineup, and the detective who investigated that crime testified that the witness did pick out Brooks. “We also decline to leap from finding some inconsistencies in the record to the conclusion that the prosecutor knowingly used perjured testimony. It is uniquely within the province of the jury to weigh conflicting testimony under proper instructions from the [c]ourt.” Burrell v. State, 258 Ga. 841, 842 (1) (376 SE2d 184) (1989).

6. Witness’s post-trial false statement conviction.

Brooks argues that his conviction must be reversed because of newly discovered evidence: the fact that the police officer whom the victim drove toward when looking for help was convicted after Brooks’s trial and the motion for new trial hearing of making false statements. As we observed in our order denying Brooks’s motion to supplement the record with evidence of the officer’s conviction, our duty is to decide cases “according to the true and complete facts as they occurred in the trial court.” State v. Pike, 253 Ga. 304, 307 (320 SE2d 355) (1984). The officer’s post-trial, post-motion-for-new-trial conviction was not before the trial court. See generally Davis v. State, 283 Ga. 438 (660 SE2d 354) (2008) (describing the procedural requirements for filing an extraordinary motion for new trial based on newly discovered evidence). In any event, Brooks does not assert that the facts underlying the false statement conviction were related to his case in any way. And although he characterizes the officer’s testimony at his trial as perjured, he fails to point out any falsity in her testimony.

7. Ineffective assistance of counsel.

The appellants argue that they received ineffective assistance of trial counsel.

To prevail on this claim, Appellants must show that their trial lawyers’ performance was professionally deficient and that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been more favorable to them. See Strickland v. Washington, 466 U. S. 668, 687, 694 (104 SCt 2052, 80 LE2d 674) (1984).

Bighams, 296 Ga. at 270 (3). Appellants have not met this burden.

(a) Failure to renew mistrial motion.

Jones argues that counsel was ineffective for failing to renew his motion for mistrial addressed in Division 4, supra, after the trial court admonished the prosecutor that his objection was improper. Because the trial court did not err in denying Jones’s motion for mistrial, any error in counsel’s failure to renew the motion was harmless. “Counsel’s failure to raise a meritless objection did not amount to ineffective assistance.” Bun v. State, 296 Ga. 549, 553 (3) (769 SE2d 381) (2015) (citation and footnote omitted).

(b) Failure to challenge the indictment.

Brooks argues that trial counsel was ineffective for failing to move to quash the indictment or to arrest judgment. As for the failure to move to arrest judgment, “a motion to arrest judgment due to a defective indictment should be granted only when an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law.” State v. Wilson, 318 Ga. App. 88, 92 (1), n. 10 (732 SE2d 330) (2012) (citation and punctuation omitted). Brooks does not argue that the indictment failed to charge him with an act made a crime by law. Therefore, trial counsel was not ineffective for failing to move to arrest judgment on this ground.

Decided May 21, 2015

And at the motion for new trial hearing, trial counsel testified that he did not move to quash the indictment because the state simply could re-indict Brooks, it would only delay the trial, and he had filed a speedy trial motion. This is reasonable trial strategy. Robinson v. State, 265 Ga. App. 481, 483 (3) (594 SE2d 696) (2004) (tactical decision not to delay trial was not ineffective assistance). Moreover,

[e]ven assuming . . . that there was no strategic reason for not filing a timely challenge to the indictment (like the desire not to delay the trial), and thus that trial counsel performed deficiently, [Brooks has] not shown prejudice. If a timely motion to quash had been filed, the indictment likely would have been dismissed because a [convicted felon] served on the grand jury in violation of OCGA § 15-12-60 [(c)]. The [s]tate would have been free, however, to obtain the identical indictment from a properly constituted grand jury. A dismissal would have been the first in this case, allowing the [s]tate to re-indict. See OCGA § 17-7-53.1 (barring prosecution after two indictments charging the same offenses have been quashed). The [s]tate would have faced no imminent deadlines under the statute of limitations for the crimes with which Appellants were charged. See OCGA § 17-3-1 [ ] (c). And the [s]tate had ample evidence to support the indictment. Under these circumstances, [Brooks] cannot show a reasonable probability that, but for the failure of trial counsel to file a timely motion to quash the indictment, the outcome of the trial would have been different.

Bighams, 296 Ga. at 270 (3) (citations omitted).

(c) Failure to move to sever.

Brooks argues that trial counsel was ineffective for failing to move to sever his trial from Jones’s. As discussed in Division 3, supra, the trial court did not err in denying severance. Therefore, Brooks has not shown ineffective assistance of counsel in this regard. See Bun, supra, 296 Ga. at 552 (3) (failure to make meritless objection is not ineffective assistance).

Judgments affirmed.

Ellington, R J., and Dillard, J., concur.

Amusan Law Firm, Solomon A. Amusan, for appellant (case no. A15A0701).

Steven L. Sparger, for appellant (case no. A15A0702).

MegE. Heap, District Attorney, Jerome M. Rothschild, Jr., Lyndsey H. Rudder, Assistant District Attorneys, for appellee.


author: Branch, Judge.

text:
    A15A0096.
    THE STATE v. WELLS.
    (771 SE2d 906)
   Branch, Judge.

The State appeals a trial court decision granting Alan Wells’s motion to suppress evidence obtained as a result of a search pursuant to a warrant. For the reasons that follow, we reverse.

Viewed in the light most favorable to upholding the trial court’s findings and judgment, see Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d 148) (2013), the evidence presented at the suppression hearing shows that on August 30, 2011, the DeKalb County Police Department received an anonymous complaint from a community member about alleged narcotics sales at 663 Parker Avenue, with purchasers arriving both on foot and in vehicles. Four uniformed officers, including Sergeant Pitts, went to the location to conduct a “knock and talk” to investigate the allegations in the report. The officers first identified two known drug users standing in the driveway. Pitts then knocked on the front door and spoke with Wells, who identified himself as the leaseholder. Pitts explained to Wells the nature of the complaint, and Wells responded that he had been arrested for trafficking in cocaine in the past and that he was on probation. Pitts asked for consent to search; Wells refused and responded that he only had a “little bag of weed” in the house for personal use and was not selling drugs on the premises. Pitts then asked Wells if he could enter the home to retrieve the marijuana. Wells became visibly nervous but responded “come on” and started walking in the house; Pitts followed Wells into the master bedroom. There, Wells searched a drawer but stated that he could not find the marijuana, and he again refused a request by Pitts to search the house. Pitts and Wells then went back outside. At that point, Pitts and the other officers decided to detain the individuals at the house and to attempt to obtain a warrant to search the house.

Pitts picked up Officer D. W. Price, who at that point had not been involved in the investigation, and the two traveled to magistrate court to apply for the warrant. On the way, Pitts informed Price of the information learned in the investigation. At the court, Price prepared and signed the affidavit in support of the request for the warrant with the information he learned from Pitts and conveyed that information to the magistrate judge; Pitts testified that he was present in the courtroom at the time, but Price testified that Pitts was not present. After obtaining the magistrate’s signature on the warrant, Pitts and Price returned to the scene.

After returning with the warrant, Pitts, Price and the other officers executed the warrant and searched the house, which led to the discovery of a large amount of powder and crack cocaine, most of which was located in the master bedroom. When the contraband was discovered, Wells stated that everything was his; when Wells was then read his Miranda rights, he again stated that everything discovered in the search belonged to him, and he wrote a statement to that effect. Consequently, Wells was arrested and later charged with trafficking in cocaine and possession of marijuana.

Following the hearing on Wells’s motions to suppress, the trial court granted the motion to suppress Wells’s statement and the motion to suppress the evidence obtained in the search. With regard to the search, the court found that the search warrant was based on hearsay provided to Price by Pitts and that Pitts was not present for the issuance of the warrant. The court then held as a matter of law that all of the information provided by Pitts was inadmissible hearsay and should be deleted from the affidavit and application for the warrant. Based on this reasoning, the trial court concluded that the affidavit lacked probable cause to allow the magistrate to issue a warrant. Accordingly, on April 2, 2014, the court granted the motion to suppress the evidence seized in the search.

On appeal, the State contends the trial court erred by concluding that the information relayed by Pitts to Price was inadmissible for the purposes of establishing probable cause. We agree.

1. When considering whether to issue a search warrant, a magistrate must make

a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984), quoting Illinois v. Gates, 462 U. S. 213, 238 (III) (103 SCt 2317, 76 LE2d 527) (1983). Thus, as shown, “an affidavit supporting a search warrant maybe based on hearsay information as long as there is a substantial basis for crediting the hearsay.” Deal v. State, 199 Ga. App. 184, 185 (1) (404 SE2d 343) (1991) (citation and punctuation omitted); Lewis v. State, 255 Ga. 101, 105 (2) (335 SE2d 560) (1985) (same). And we have repeatedly held that one officer may present an affidavit in support of a search warrant based on statements obtained from another officer; that such hearsay is reliable under the circumstances; and that the officer communicating the information to the affiant need not personally appear before the magistrate. Johnson v. State, 265 Ga. App. 777, 781 (2) (595 SE2d 625) (2004) (no merit to argument that magistrate could not rely on information relayed from one officer to the officer who presented the affidavit; “An officer may rely on information communicated by fellow officers for probable cause.”) (footnote omitted); Lewis v. State, 234 Ga. App. 873, 876 (1) (b) (508 SE2d 218) (1998) (“Observations by fellow officers of government engaged in a common investigation are a reliable basis for a warrant applied for by one of their number.”) (citations and punctuation omitted); Pollard v. State, 236 Ga. 587, 589 (2) (224 SE2d 420) (1976) (“[L]ocal law enforcement officials participating in common investigation are reliable informants and their information may be relied on to establish probable cause for the issuance of search warrants.”). Because the information relayed from one officer to the officer presenting the affidavit is deemed reliable, the trial court erred by excluding the information in the search warrant affidavit on the sole basis that the averments were hearsay communicated from Pitts to Price.

2. The affidavit submitted by Price related, among other things, that four named officers including Pitts responded to the relevant address based on a narcotics sales complaint; that they observed two known drug users in the driveway; that Wells, the leaseholder, stated that he was on probation for trafficking in cocaine and that he had a bag of marijuana in his bedroom; that Wells became visibly nervous as he walked Pitts to the bedroom to retrieve the marijuana; and that Wells acted as if he could not find the bag of marijuana. This information, which specifically included an admission by Wells that there was marijuana in the house, provided a sufficient basis for the magistrate to conclude that there was a fair probability that contraband or evidence of a crime would be found in Wells’s residence. See generally Stephens, 252 Ga. at 182.

Judgment reversed.

Andrews, P. J., and Miller, J., concur.

Decided May 5, 2015

Reconsideration denied May 26, 2015.

Robert D. James, Jr., District Attorney, Gerald Mason, William M. Clark, Assistant District Attorneys, for appellant.

Gerard B. Kleinrock, Richard J. Silver, for appellee.

       The trial court also granted Wells’s motion to suppress a statement he made to the police, but the State is not appealing that aspect of the trial court’s ruling.


author: Boggs, Judge.

text:
    A15A0257.
    BOWMAN v. THE STATE.
    (773 SE2d 33)
   Boggs, Judge.

Danny Bowman appeals from the trial court’s order denying his motion to suppress evidence seized during a search of his home. Because the record reveals no probable cause for the search, we reverse.

When reviewing a suppression ruling, we construe the evidence favorably to the trial court’s findings and judgment. See Galindo-Eriza v. State, 306 Ga. App. 19 (701 SE2d 516) (2010). So viewed, the evidence shows that on June 21, 2013, a Gordon County sheriff’s detective, Eric Burns, received information that a stolen Ford F-250 truck could be found on Bowman’s property. Around midnight, the detective and other officers approached the front door of Bowman’s home, knocked, and identified themselves. An individual opened the door and, upon seeing uniformed officers, immediately slammed it shut. While the door was open, Burns saw a battery charger inside the house that was the same color as a charger reportedly located within the truck when it was stolen.

Concerned that someone might try to escape through the back door, the detective sent a deputy to the rear of the residence. The deputy went behind the house and saw a Ford F-250 tailgate that appeared to have been spray-painted leaning against the back porch. He reported this discovery to the detective, who began the process for obtaining a search warrant. While waiting on the warrant, the deputy drove further back into the property and found the stolen truck under a tarp. The search warrant eventually arrived, and officers located a methamphetamine lab, as well as items belonging to the truck’s owner, inside Bowman’s home.

Bowman was indicted for attempt to manufacture methamphetamine, possession of ephedrine, possession of pseudoephedrine, and theft by receiving stolen property. He subsequently moved to suppress all evidence seized by police, arguing that officers located the tailgate and stolen truck when they illegally entered his back yard and that nothing visible from the home’s front door supported a search warrant. The trial court agreed with Bowman as to the stolen truck. Finding that the deputy improperly searched the rear of the property without a warrant, the trial court suppressed all evidence of the truck discovered under the tarp.

As to items seized from the house, however, the trial court found that probable cause supported the search. It denied Bowman’s motion to suppress and motion for reconsideration, but issued a certificate of immediate review. We granted Bowman’s interlocutory application, and this appeal followed.

1. Citing OCGA § 17-5-30, Bowman argued below that the search was illegal and lacked probable cause, requiring suppression of all seized evidence. Without dispute, the officers’ initial approach to Bowman’s house constituted a permissible, first-tier “knock and talk” encounter. See Galindo-Eriza, supra, 306 Ga. App. at 22 (1); State v. Ealum, 283 Ga. App. 799, 801, n. 2 (643 SE2d 262) (2007). The detective was entitled to be at the front door when it opened. His view of the battery charger, therefore, was permissible. See Myers v. State, 321 Ga. App. 676, 679 (742 SE2d 494) (2013) (officers’ observation of stolen merchandise inside car could be used as basis for warrant because “officers were in a place they were lawfully entitled to be” when they saw merchandise).

The deputy’s discovery of the tailgate, however, is problematic. The Fourth Amendment prohibits an officer “from entering [a] home or its curtilage without a warrant absent consent or a showing of exigent circumstances." Kirsche v. State, 271 Ga. App. 729, 731 (611 SE2d 64) (2005). The yard immediately surrounding a dwelling falls within the curtilage of a home. See id. at 733. The deputy did not have a warrant or consent when he went behind the house, and the State offered no evidence of an emergency situation. In fact, the State concedes the deputy was not authorized to be in the back yard. Consequently, his observation of the tailgate was illegal, provided no basis for a probable cause finding, and required suppression of the tailgate evidence. See Arp v. State, 327 Ga. App. 340, 346 (2) (759 SE2d 57) (2014) (because officers were not authorized to enter defendant’s back yard, observations made from back yard could not support search); State v. O’Bryant, 219 Ga. App. 862, 863-865 (467 SE2d 342) (1996) (contraband observed inside truck located within curtilage of defendant’s home could not form basis for search warrant where officer lacked authority to look inside vehicle); see also State v. Schwartz, 261 Ga. App. 742, 745 (1) (583 SE2d 573) (2003) (trial court properly suppressed evidence illegally seen by police).

2. The question thus becomes whether the detective’s observation of the battery charger, standing alone, supports the search warrant. The State argues that it does. “A search warrant will only issue upon facts sufficient to show probable cause that a crime is being committed or has been committed.” Willoughby v. State, 315 Ga. App. 401, 403 (727 SE2d 194) (2012), citing OCGA § 17-5-21 (a). In determining whether probable cause exists, a magistrate must “make a practical, common-sense decision whether ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Citations and punctuation omitted.) Id. Speculation, conjecture, opinion, or rumor cannot support a warrant. See id. Instead, “the facts must be such as to lead a man of prudence and caution to believe that the specified offense has been committed.” (Citation and punctuation omitted.) Id.

Moreover, we have held that

the burden of showing that the search and seizure were lawful shall be on the [S]tate. This burden upon the [S]tate is satisfied by production of the warrant and its supporting affidavit, and by showing either by those documents or by other evidence that the warrant is not subject to the statutory challenge alleged.

(Citations, punctuation and emphasis omitted.) Smith v. State, 324 Ga. App. 542, 544-545 (1) (751 SE2d 164) (2013). In this case, however, the State did not tender the warrant or supporting affidavit into evidence at the suppression hearing, and neither document otherwise appears in the record. Because the search warrant affidavit is absent from the record, we are not privy to the information given to the magistrate judge. We do not know whether the affidavit provided details about the stolen truck, the battery charger, or any connection between the charger and the truck. And we cannot determine whether it demonstrated a fair probability that contraband or evidence of a crime would be found in Bowman’s home. Under these circumstances, the State has not shown that the magistrate had probable cause to issue the search warrant. The trial court, therefore, should have suppressed all evidence seized pursuant to the warrant. See Willoughby, supra, 315 Ga. App. at 404 (magistrate must be provided with underlying details to determine whether officer’s conclusions regarding crime “were based on specific facts ... rising to the level of probable cause or whether they were instead based on mere speculation or presumptions”).

Decided May 27, 2015.

Evans & Rhodes, Donald C. Evans, Jr., for appellant.

Rosemary M. Greene, District Attorney, Erie J. Newton III, Assistant District Attorney, for appellee.

Judgment reversed.

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

       The State has not challenged this ruling.

       Under this provision, a defendant may move to suppress evidence on grounds that “[t]he search and seizure with a warrant was illegal because... there was not probable cause for the issuance of the warrant.” OCGA § 17-5-30 (a) (2).


author: ELLINGTON, Presiding Judge.

text:
    A15A1236.
    SPARGO v. THE STATE.
    (773 SE2d 35)
   ELLINGTON, Presiding Judge.

In 2008, Lonnie Spargo entered a negotiated plea of guilty to two counts of child molestation. The Superior Court of Baker County sentenced Spargo to serve 20 years’ imprisonment, consecutively, as to each count. On December 15, 2014, Spargo filed in the sentencing court a “motion to vacate void sentence,” alleging that OCGA § 17-10-6.2 (b) requires that a person convicted of a sexual offense must receive a split sentence with at least one year of probation. The trial court denied Spargo’s motion, and he appeals. Because binding precedent from this Court supports Spargo’s argument, as the State concedes, we vacate Spargo’s sentence and remand for resentencing.

“[A] sentencing court retains jurisdiction to correct a void sentence at any time.” (Citations and punctuation omitted.) Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804) (2010). See OCGA § 17-9-4 (“The judgment of a court having no jurisdiction of the person or subject matter, or void for any other cause, is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.”). “[T]he only ground for authorizing a trial court to correct a sentence at any time is that the sentence is void. A sentence is void if the court imposes punishment that the law does not allow.” (Citations and punctuation omitted.) Rooney v. State, 287 Ga. at 2 (2). “When the sentence imposed falls within the statutory range of punishment, [however,] the sentence is not void[.]” (Citation omitted.) Jones v. State, 278 Ga. 669, 670 (1) (604 SE2d 483) (2004).

In Clark v. State, 328 Ga. App. 268 (761 SE2d 826) (2014), we considered the limitations imposed by OCGA § 17-10-6.2 (b) on punishments authorized by law for sexual offenses and found that the statute “express[ly]” and “unambiguously]” requires “that the trial court issue a ‘split sentence’ that includes the minimum term of imprisonment and at least one year of probation[.]” Clark v. State, 328 Ga. App. at 269 (1). Thus, for a first conviction for child molestation, a trial court must impose a “split sentence” that includes “at least five years of imprisonment and at least one year of probation, for a total of no more than twenty years.” Id. at 270 (2). As a result, we held that a sentence for a first child molestation conviction of twenty years to serve in prison without probation was void. Id. at 270 (1).

Decided May 29, 2015.

Lonnie P. Spargo, pro se.

Joseph K. Mulholland, District Attorney, MorufO. Oseni, Assistant District Attorney, for appellee.

Because the trial court in this case sentenced Spargo on each count of child molestation to 20 years’ imprisonment, the sentences are void. Id. His sentences are therefore vacated, and this case is remanded for resentencing.

Judgment vacated and case remanded.

Dillard and McFadden, JJ., concur.

       We are mindful that “[a] claim challenging a conviction and a claim challenging the resulting sentence as void are not the same.” (Footnote omitted.) State v. Green, 308 Ga. App. 33, 34-35 (1) (706 SE2d 720) (2011) . See Harper v. State, 286 Ga. 216, 217-218 (1) (686 SE2d 786) (2009) (Under Georgia law, a petition to vacate a judgment of conviction in a criminal case is not an authorized remedy, hut a petition to modify a sentence on the ground that it is void is permitted. Georgia law recognizes three mechanisms for challenging a conviction after it has been affirmed on direct appeal: a criminal defendant may file in the sentencing court an extraordinary motion for new trial pursuant to OCGA § 5-5-41, provided the defendant did not plead guilty; may file in the sentencing court a motion in arrest of judgment pursuant to OCGA § 17-9-61, provided that the defendant files the motion during the term of court at which the judgment was entered; or may file in the county in which the defendant is incarcerated a petition for habeas corpus pursuant to OCGA §§ 9-14-40 through 9-14-53.) (citation omitted); Jones v. State, 322 Ga. App. 269, 270-272 (1) (745 SE2d 1) (2013) (accord). Here, Spargo challenges only the sentences imposed; he did not seek relief from the convictions themselves.

        Rooney v. State, 287 Ga. at 2 (2) (A claim that a sentence is void because it is unlawfully consecutive may be made by means of a motion to vacate void sentence.); Howard v. State, 281 Ga. App. 797, 803-804 (5) (637 SE2d 448) (2006) (A sentence is void if it imposes a period of confinement greater than the statutory maximum for the offense.); Barraco v. State, 252 Ga. App. 25 (555 SE2d 244) (2001) (A sentence is void if it imposes a fine greater than the statutory maximum for the offense.); Sledge v. State, 245 Ga. App. 488 (537 SE2d 753) (2000) (A sentence is void if it imposes punishment for both a greater offense and a lesser included offense for the same act.).
      Cf. Simpson v. State, 292 Ga. 764, 765 (740 SE2d 124) (2013) (A motion to vacate a judgment on the basis that certain offenses merged as a matter of fact with certain other offenses was a motion attacking the convictions themselves as void, not one merely claiming that the sentences were void.); Harper v. State, 286 Ga. at 217-218 (1) (A motion to vacate void judgment on the basis that the judgment was imposed by a court that was not the proper venue for the prosecution was a challenge to the defendant’s conviction, not his sentence.); Jones v. State, 322 Ga. App. at 270-272 (1) (A claim that a judgment is void on the basis that the defendant was without counsel during the probation revocation proceedings that resulted in the sentence of imprisonment was a challenge to the defendant’s conviction, not his sentence.); State v. Green, 308 Ga. App. at 34-35 (1) (706 SE2d 720) (2011) (Aclaim that a judgment imposed punishment for conduct that was no longer criminal was a challenge to the defendant’s conviction, not his sentence.).

       See Williams v. State, 271 Ga. 686, 689 (1) (523 SE2d 857) (1999) (“[T]he denial of a petition to correct a sentence on the ground that the original sentence was void is appealable as a matter of right.”).

       OCGA § 17-10-6.2 (b) provides in relevant part:
      Except as provided in subsection (c) of this Code section, and notwithstanding any other provisions of law to the contrary, any person convicted of a sexual offense shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to the offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and such sentence shall include, in addition to the mandatory imprisonment, an additional probated sentence of at least one year. . . .


author: Dillard, Judge.

text:
    A15A0697.
    THE STATE v. SPAIN.
    (773 SE2d 281)
   Dillard, Judge.

In 2011, Chelsea Spain was convicted by a jury of entering an automobile with intent to commit theft. Although she was eligible to be treated as a “first offender,” Spain declined to request such a sentence from the trial court. Then, roughly two years later, Spain moved the trial court to modify her sentence and grant her first-offender status. The trial court granted that motion, and the State appeals, arguing that the court lacked jurisdiction to retroactively resentence Spain as a first offender. We agree, and therefore, the trial court’s order modifying Spain’s original sentence is reversed and her first-offender sentence is vacated.

On February 1, 2011, a jury convicted Spain of entering an automobile with the intent to commit theft. The trial court sentenced Spain to four years of probation, with forty-eight hours to serve in confinement. Because this was Spain’s first felony conviction, she was eligible to be sentenced as a first offender. But after consulting with her counsel, Spain ultimately decided against requesting that the trial court sentence her under this statutory scheme.

On November 18, 2013, after serving more than half of her term of probation, Spain filed an “extraordinary motion to modify sentence,” seeking to be resentenced as a first offender. In her motion, Spain acknowledged that, during sentencing, she was advised of her eligibility to be sentenced as a first offender, and that she elected not to seek a sentence under the First Offender Act. Nevertheless, Spain indicated that, since that time, she realized the negative effects of having a felony conviction, and that she now desired first-offender status to allow for greater employment opportunities. After a hearing, the trial court granted her motion, finding that Spain was “overcome with emotion” during her initial sentencing hearing, and she “may not have had a clear understanding of her decision in rejecting the opportunity afforded to her by the State and the Court to be sentenced under the First Offender Statute.” This appeal by the State follows.

In its sole enumeration of error, the State argues that the trial court lacked jurisdiction to resentence Spain as a first offender. We agree.

The First Offender Act provides, in relevant part:

Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant: (1) Defer further proceeding and place the defendant on probation as provided by law; or (2) Sentence the defendant to a term of confinement as provided by law.

In interpreting this statutory provision, we have recognized that by the “plain terms of the statute,” a trial court is only authorized to grant first-offender treatment “before a defendant has been adjudicated guilty and sentenced.” Thus, while the decision of whether or not to sentence a defendant as a first offender lies entirely within the discretion of the trial court, that discretion disappears entirely once a defendant has been adjudicated guilty and sentenced. And here, the trial court resentenced Spain as a first offender long after entering its final judgment on her felony conviction and sentencing her accordingly. As a result, the trial court was not at liberty to “unwind the clock and modify the final judgment of conviction and sentence in order to grant first offender treatment,” and its “attempt to do so . . . was a mere nullity.”

Decided June 2, 2015.

Daniel J. Porter, District Attorney, John A. Warr, Assistant District Attorney, for appellant.

Chelsea E. Spain, pro se.

For all of the foregoing reasons, the trial court lacked jurisdiction to resentence Spain under the First Offender Act. We, therefore, reverse the trial court’s judgment granting Spain’s motion to modify her sentence, and vacate her first-offender sentence, with the result being that her original sentence is rendered in full force and effect.

Judgment reversed and sentence vacated.

Ellington, P. J., and McFadden, J., concur.

       The State’s appeal was authorized by OCGA § 5-7-1 (a) (6), which provides that the State may appeal from “an order, decision, or judgment of a court where the court does not have jurisdiction or the order is otherwise void under the Constitution or laws of this state.”

        See OCGA §§ 42-8-60 to 42-8-66.

       Spain, did not file an appellate brief challenging the State’s argument.

       OCGA § 42-8-60 (a) (1), (2) (emphasis supplied).

        State v. Stulb, 296 Ga. App. 510, 511-12 (675 SE2d 253) (2009) (punctuation omitted; emphasis in original); accord State v. Neal, 306 Ga. App. 40, 40-41 (701 SE2d 487) (2010); Burchette v. State, 274 Ga. App. 873, 874 (619 SE2d 323) (2005); see also Lewis v. State, 217 Ga. App. 758, 759 (458 SE2d 861) (1995) (holding that a defendant may not be granted first-offender status after he has been sentenced), superseded by statute on other grounds as stated in Harris v. State, 325 Ga. App. 568, 571, nn. 14, 15 (754 SE2d 148) (2014).

        See Moton v. State, 332 Ga. App. 303, 305 (2) (772 SE2d 396) (2015) (physical precedent only); Freeman v. State, 328 Ga. App. 756, 762 (5) (760 SE2d 708) (2014); Tew v. State, 320 Ga. App. 127, 127 (739 SE2d 423) (2013).

        See supra n. 5.

        Stulb, 296 Ga. App. at 512.

        Id.; see also Bush v. State, 273 Ga. 861, 862 (548 SE2d 302) (2001) (“When a trial court enters a judgment where it does not have jurisdiction, such judgment is a mere nullity... [and] the void judgment will be reversed.” (punctuation omitted)); State v. James, 211 Ga. App. 149, 150-51 (2) (438 SE2d 399) (1993) (holding that, when the trial court lacked jurisdiction to grant a motion to reconsider defendant’s guilty plea, its judgment doing so was a nullity).