author: Adams, Judge.

text:
    A11A1456.
    LAYE v. THE STATE.
    (720 SE2d 233)
   Adams, Judge.

Randall Laye appeals his conviction for armed robbery arising out of an incident in Carrollton that led the State to charge nine individuals with murder, armed robbery, aggravated assault, cruelty to children, and other crimes. Laye was tried with co-defendant Chade Ackey, and, although both were charged with 17 crimes, Laye was convicted only of armed robbery (and sentenced to life), and Ackey was acquitted on all counts. The State’s primary evidence inculpating Laye came from Christopher Coleman, the only person who pled guilty and agreed to testify against Laye and Ackey.

On appeal, Laye enumerates several errors concerning evidence of corroboration: that the corroborative evidence was insufficient; that the court erred by failing to give a limiting instruction regarding a custodial statement by co-defendant Ackey that implicated Laye; that, for the same reasons, the court erred by denying Laye’s motion to sever his trial from Ackey’s; and that trial counsel was ineffective by failing to request a limiting instruction regarding Ackey’s statement. One other alleged error will be addressed, as well.

Because the main issue concerns corroboration of Coleman’s testimony, we will begin there. Coleman pled guilty to murder, armed robbery, multiple counts of aggravated assault, multiple counts of cruelty to children, and possession of a firearm by a convicted felon; he is serving life plus ten years. He testified to the following: He was nineteen years old in July 2006, and, although he had been in Carrollton for only about five weeks, he had made friends with several young men there, including LaBryan Lytle, Varion “Snoopy” Shell, Arlandra Deonte “Red” Holland, and Aerius “P” Potts. On the night of July 19, Coleman arranged to borrow a white Neon car from a friend; he then rounded up the above group of young men. They had a plan to go to LaGrange and possibly rob someone there, but when the events unfolded in Carrollton, they decided to use the story that they went to LaGrange as an alibi.

As Coleman was driving at about 10:00 p.m., Potts made a telephone call, then he told Coleman to drive to the Elizabeth Village mobile home park in Carrollton. When they arrived, Potts said that they were looking for an older model, dark blue or black car, which they found almost immediately. All those in the white car, except Coleman, got out and shook hands with those sitting in the blue car. Coleman then got out, and someone from the white car said to Coleman, “Let me introduce you to my home boy.” Coleman was introduced to Chade Ackey, Cody Buchanan, Marcus Oliphant, and “Boots,” who he identified at trial as Randall Laye. He had never met Laye before that night.

Those from the white car got back in with Coleman at the wheel, and both cars drove to a different spot and reparked, perhaps 30 yards apart, facing out of Elizabeth Village. Everyone in the white car got out, and, although Coleman could not see well, he thought he saw three people get out of the blue car — Oliphant, Buchanan, and Laye. At this point, Coleman had a .38 caliber gun, and he helped Potts reload his nine millimeter gun, for which Laye was present. Coleman testified that Holland had a .32 caliber gun and Lytle had a .38 caliber gun. The heavily armed group then began to move through the neighborhood. At this point, Coleman had not seen Laye with a gun.

Coleman testified that he, Lytle, Shell, Holland, and Potts (the group from the white car) walked down the hill toward a mobile home with two SUVs parked out front. Oliphant and Buchanan did not follow; they remained “on top of the hill,” but that was only a home or so away. Laye appeared wearing a mask, and he knocked on the mobile home door, but nobody answered. Pedro Espinoza, who was unknown to the group, then came out of the next home and sat on the trunk of his car smoking a cigarette. Coleman called everyone’s attention, and he approached and asked Espinoza for a cigarette. Espinoza said he did not have any.

Coleman then saw Laye put a small gun, possibly a .22 or .25 caliber, to Espinoza’s head and twice say, “Give up the money.” Potts approached and began patting Espinoza down; Espinoza’s cell phone fell out of his pocket; Potts picked it up; and Espinoza protested that he did not have any money. Potts then put his gun to Espinoza’s mouth, and Holland kneed him in the groin, knocking him to the ground. Espinoza’s brother appeared at the door of the home and asked what was going on; then his brother’s wife asked what the group wanted. But once the woman closed the door, Potts started shooting, and Coleman and Laye followed suit; according to Coleman, however, Laye only shot in the air. They all then ran back to the cars. At the cars, someone, maybe Laye, asked for more bullets, and Lytle gave him some .22 or .25 caliber bullets.

At Potts’s direction, Coleman then drove to a Kroger parking lot; there, another car approached, from which Ackey and Oliphant exited and got in the white car with Coleman and the others. Ackey asked repeatedly, “why did they shoot . . . why did the shooting start.” The group then drove around and threw the .32 and the nine-millimeter out the window. The group eventually returned the car to the friend. Coleman did not testify about what happened to Laye or the blue car after the two cars left Elizabeth Village.

Evidence from other sources showed that when the shots were fired, Espinoza was wounded, his sister-in-law Paola Cabanas was hit inside the mobile home with a .38 caliber bullet from Coleman’s gun and killed, and one of three children in the home was shot through the legs as she sat on the couch watching television with her brother and sister. Espinoza’s cell phone was found on the side of a road outside of Elizabeth Village.

1. In felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient; corroboration is necessary. See OCGA § 24-4-8. The corroborating evidence itself must connect the defendant with the crime or lead to an inference that he is guilty:

To sustain a conviction in a felony case upon the testimony of an accomplice, there must be corroborating facts or circumstances, which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime, or lead to the inference that he is guilty. The necessary corroborating evidence may be circumstantial and it may be slight.

(Citations and punctuation omitted.) Matthews v. State, 284 Ga. 819-820 (1) (672 SE2d 633) (2009). The sufficiency of the corroborating evidence is a question for the trier of fact. Id.

Here, we need only find that the jury had sufficient corroborating evidence that Laye participated in an armed robbery, the only crime of which he was convicted; the indictment alleged that the defendants intended to and took Espinoza’s cell phone by use of a handgun. Moreover, Laye may be convicted as a party to the crime if he was “concerned in the commission of [the] crime.” OCGA § 16-2-20 (a). Subsection (b) (3) provides that a person is concerned in the commission of the crime if he or she “|i Intentionally aids or abets in the commission of the crime.” OCGA § 16-2-20 (b) (3). The jury was instructed on parties to a crime.

With regard to evidence corroborating Coleman’s testimony, the State introduced two statements that Laye made to investigating officers on the two days following the shooting. The trial court found that the statements were freely and voluntarily given following proper Miranda procedures. The two statements corroborate the general events in Coleman’s account, including placing Laye as the driver of the blue car, showing that Laye had heard Potts say that he was going to shoot somebody that night, and showing that Laye moved close enough to see the shooting; but Laye also stated that he was unarmed and that he did not go “down the hill” to the trailer and get involved with Espinoza or the shooting.

More specifically, Officer Steve Daniel testified that he spoke to Laye on July 20 and 21, 2006 and that both interviews were recorded. Laye’s mother was present at the end of the first session and for the entirety of the second. The recordings of the two interviews were played to the jury.

Laye’s first interview was internally inconsistent with regard to his precise actions. He testified that he was 17 years old at the time; that he was driving the blue car; that he, Buchanan, and Oliphant were riding around when they got a call from Potts; that they drove to Elizabeth Village and met Potts, Holland, Shell, and Lytle, all of whom he knew, as well as a fifth person whom he did not know [Coleman], riding in a white Neon; that Laye and those in the blue car got out of the car; that he never got out of the blue car; that the two groups talked for about five minutes; that Potts said, “Before the night over, Pm going to shoot me somebody, boy.”; that everybody in Potts’s car had a gun; that Potts and his group “just started shooting”; that he heard gunshots before he got out of the car; that Potts’s group “shot up the house”; and that when he heard the shots, he drove off. At one point, Laye’s mother came in to the interview, and the officer left. Laye told his mother that he had told the police everything. Laye said to his mother, “I swear to God, me and Cody [Buchanan] didn’t get out of the car.”

In the second interview, this time with his mother present the entire time, Laye gave the following additional information: that he “wasn’t really out of the car”; that he was not at the trailer when the others shot; and that he was “up the street” at that moment. At this point, Laye said, “I want a lawyer.” From that point forward, Laye’s mother questioned him. During this questioning, Laye said that he was “up the street” with Buchanan and Oliphant and that he was in the car. His mother said, “Look, you better start damn talking now. Did you get out of the car?” Laye answered, “Yes.” But he added that he did not go to the trailer. His mother accused him of lying about not getting out of the car. Laye responded that he was out of the car only to talk to the other group. Then he said that he got out to see what the others were doing and that when the shooting started they ran. He said he was scared the previous day when he said he did not get out of the car.

The officer then said that Laye was not telling everything. He noted that he could not ask more questions because Laye had asked for a lawyer. But he added “So, you were there, I wasn’t. You know what happened.” Laye’s mother continued, “you was there when they started shooting and everything.” Laye responded “I took off running.” He added that he only saw one person shoot, and it was the person he did not know in the other car, which would be Coleman. She then pressed her son with information she had heard from other people. She said that Shell “told everybody you had a gun, I asked you did you have a gun.” Laye said that he did not have a gun. The officer continued to talk to Laye saying, that he was in big trouble, “life-time trouble, . . . The ultimate charge, okay? . . . and you’re going to catch an attitude with your mom.” Laye’s mother said that someone said that Laye “got to arguing with a white guy in Elizabeth Village, and [he] had a shoot-out with the white guy.” Laye continued to plead that he did not have a gun.

Thus, independent of the hearsay statements by his mother, Laye himself corroborated that he drove the blue car to Elizabeth Village; that someone in the car received a call from Potts from the other car; that he and the others got out of the blue car and talked to those from the white car, including Potts, for five minutes; that he — Laye — saw that Potts’s group all had guns; that he heard Potts say that he was going to shoot somebody that night; that he moved far enough away from the blue car and toward the scene of the crime to see Coleman shoot; that he was close enough to the scene to need to “take off running” when the shooting started in order to get back to the blue car; and that he drove the blue car when the two cars left the scene. In addition, within and across both interviews, he gave inconsistent statements about whether he got out of the blue car, thereby impeaching his own credibility.

Additional evidence from other witnesses corroborated aspects of Coleman’s story that further implicate Laye in the armed robbery. Immediately prior to the shooting, a person across the street from Espinoza’s home saw a blue-grey car with tinted windows that looked like an Oldsmobile 98 drive through the neighborhood very slowly, four times without stopping. Another resident of Elizabeth Village saw a white car pull up directly in front of her house. After a blue car pulled up, four black males got out of the white car, and talked with those in the blue car for a minute or so. No one from the blue car got out, and after the conversation ended, both cars drove off toward the exit of Elizabeth Village; those who had gotten out of the white car were still out of the car, and she saw them walk toward the back of Elizabeth Village. After a short time, she heard gunshots. Also, .22 caliber bullets were found behind the back seat of the white car.

Finally, as a part of his testimony, Espinoza stated that at the same time one of the perpetrators asked for a cigarette, he saw another person trying the doors on the neighboring home; that he saw as few as three or as many as six persons during the attack, all of whom had part of their faces covered; that someone or all of them yelled “Give me the money, give me the money”; that after the shooting, all of the attackers took off running; and that one guy came back to shoot him again.

Including these additional witnesses and independent of Coleman’s testimony, the corroborative evidence strongly suggests that Laye drove the blue car to Elizabeth Village based on a call from Potts; that he drove the car as it cased the neighborhood; that thereafter, the two cars met up, and all but the driver of the white car got out to have a conversation with those in the blue car; that Laye heard Potts say he was going to shoot somebody; that four heavily armed members of the white car then began walking toward the back of Elizabeth Village toward the Espinoza home while Laye in the blue car and someone in the white car parked in a getaway position closer to the exit to Elizabeth Village; that Laye, Oliphant, and Buchanan then got out of the blue car and moved to within viewing distance of the scene of the crime, thereby explaining why Laye was not with Coleman’s group on the initial approach to Espinoza’s home; that at that point in time, Laye had cased the neighborhood, knew that there were guns and that Potts intended to shoot someone, yet he chose to move toward the scene of the crime rather than away; that, at a minimum, he watched the assault on Espinoza from just up the street; that he and the others ran back to the cars after the shooting; and that he drove one of the cars as they fled the scene.

This evidence was easily sufficient to independently and directly connect Laye to the crime and thereby corroborate Coleman’s testimony that, at a minimum, Laye aided or abetted the armed robbery of Espinoza’s cell phone. See, e.g., Johnson v. State, 288 Ga. 803, 805 (2) (708 SE2d 331) (2011). Although mere presence at the scene and merely driving a getaway car are insufficient standing alone,

[i]f the defendant had knowledge of the intended crime and shared in the criminal intent of the principal actor, he is an aider and abettor. Hence, if the defendant was at the scene and did not disapprove or oppose the commission of the offense, a trier of fact may consider such conduct in connection with prior knowledge and would be authorized to conclude the defendant assented to the commission of the offense, that he lent his approval to it, thereby aiding and abetting the commission of the crime.

(Citation and punctuation omitted.) Head v. State, 261 Ga. App. 185, 187 (1) (582 SE2d 164) (2003).

2. Laye contends the trial court committed reversible error when it failed to give a limiting instruction regarding the admission of co-defendant Ackey’s custodial statement. Ackey did not testify at trial, and Laye contends the statement violated his right to confrontation and improperly corroborated Coleman’s testimony about his participation in the crime, especially because the trial court failed to give a limiting instruction to the jury. He contends the statement violated the law set forth in Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968), Richardson v. Marsh, 481 U. S. 200 (107 SC 1702, 95 LE2d 176) (1987), and their progeny. The court denied the Bruton objection, finding that once each other’s names were removed from Ackey’s and Laye’s statements, there was nothing incriminating vis-a-vis each other therein. Laye’s counsel stated that a limiting instruction would be insufficient to remove the taint from the jury.

Ackey was interviewed on July 21, 2006, two days after the shooting, and he waived his Miranda rights. In his statement as redacted for trial, he stated the following: that he was 18 at the time of the events; that he, Oliphant, Buchanan, and a fourth person were in Buchanan’s [blue] car riding in Elizabeth Village; that in the white car were Potts, Lytle, Shell, Holland, and Coleman; that he never knew Coleman before that night; that Oliphant spoke to Potts on the phone about fixing to rob somebody, that he — Ackey — knew there was a plan “to do a lick” as they went to Elizabeth Village; that they parked the cars up the street; that when the two groups got together, Ackey’s group said that they were “fixing to leave,” but the other group said they were “fixing to rob somebody”-, that Oliphant gave his gun to Potts; that he — Ackey — stayed in the car and was not at the trailer where the shooting occurred; that he was the only one that stayed in the car-, that Oliphant and Buchanan got out of the car but “they didn’t go down there. They went — they had stayed back.”; that all three of the other boys in the car got out of the car and “walked down there”-, that “[Buchanan] and [Oliphant] and them, they went halfway. They didn’t go all the way.”; that “[Oliphant] and them, they went halfway. They didn’t go on them folks property.”; that by “halfway,” he meant they were standing at the top of the street-, that he saw the others from his car “running back to the car. I said, ‘What y’all running back to the car for?’ And I heard them gunshots.”; that he never saw any guns; that “someone —” got back in his car with a gun -, that, with regard to the gun Ackey said “I don’t know what he did with it”; that those who got back in the car said “Them fools are crazy. They shot up the trailer.”; that “they said they did all the shooting, them five right there.”; that afterward, they went to pick up Laye’s cousin, then went home; and that Potts was the ring leader of the group in the other car.

The Supreme Court has made clear that the Confrontation Clause is violated by the admission of a nontestifying co-defendant’s statement that implicates the defendant. Bruton, 391 U. S. at 135-137. This is true “even if the defendant’s own confession is admitted against him.” Cruz v. New York, 481 U. S. 186, 193 (107 SC 1714, 95 LE2d 162) (1987). And the violation generally cannot be remedied with a limiting instruction. Bruton, 391 U. S. at 137. In a joint trial, however, if the nontestifying co-defendant’s statement is redacted to exclude “any reference to [the defendant or] his . . . existence,” the statement may be admitted provided the jury is given an instruction limiting its use to the case against the co-defendant. Richardson, 481 U. S. at 211. But redaction must be thorough: the redaction is inadequate if it merely replaces a defendant’s name with a blank space, the word “deleted,” or a symbol, Gray v. Maryland, 523 U. S. 185 (118 SC 1151, 140 LE2d 294) (1998), or a reference to the defendant by nickname or by words such as “someone” or “others” or “they.” Hanifa v. State, 269 Ga. 797, 804 (505 SE2d 731) (1998). There is a constitutional problem with “statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial.” Gray, 523 U. S. at 196.

Here, Ackey’s statement identifies by name eight of the nine individuals accused with the crimes and refers to the ninth person as the “fourth person” in his car, as well as one of “all three of the other boys,” as “he,” as “them,” and the “others.” Because the jury was well aware who all the defendants were and which car they were in, it would be clear to the jury that the only unnamed person in Ackey’s statement was Laye. And in the final line, Ackey even mentions picking up Laye’s cousin. The clear implication of Ackey’s statement was that Laye was the fourth person in the car; that all those in the car knew in advance that Oliphant and Potts planned to rob someone; that Laye, Oliphant, and Buchanan got out of the car and went halfway to the scene of the crime; that they could see the shooting; that the same three ran back to the car after the shooting; and that “someone,” who could only be Buchanan or Laye, had a gun when he got back in the car.

Admission of Ackey’s statement was therefore erroneous. See Hanifa, 269 Ga. at 803 (2) (“Bruton violation occurs [even] when testimony presented in a co-defendant’s confession is supported by the defendant’s own statement.”); see, e.g., Davis v. State, 272 Ga. 327, 331 (6) (528 SE2d 800) (2000) (where redacted nontestifying co-defendant’s statement said that “someone” shot the victim and the “someone” was immediately recognizable as the defendant, Bruton violation occurred). The statement directly implicates Laye as an accomplice to armed robbery. If Ackey’s statement were the sole evidence, the jury could easily infer that Laye knew in advance that there was a plan to rob someone and that therefore he knowingly functioned as a lookout or otherwise aided and abetted in the armed robbery. This is not a case where the co-defendant’s statement does not incriminate the defendant on its face and is only incriminating when linked with other evidence. See, e.g., Moss v. State, 275 Ga. 96 (561 SE2d 382) (2002). Where a nontestifying co-defendant’s statement directly implicates the defendant, a limiting instruction for the jury is inadequate. Bruton, 391 U. S. at 137; Hanifa, 269 Ga. at 803.

Because Laye’s right to confrontation was violated he is entitled to a new trial unless the error was harmless. Davis, 272 Ga. at 332; Hanifa, 269 Ga. at 804 (2); Schneble v. Florida, 405 U. S. 427, 432 (92 SC 1056, 31 LE2d 340) (1972) (“unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction, reversal is not required”). Our Supreme Court has explained that the test for harmless error depends on several factors:

Whether a violation of the Confrontation Clause is harmless depends on a host of factors, including “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. [Cits.]” Delaware v. Van Arsdall, 475 U. S. 673, 684 (106 SC 1431, 89 LE2d 674) (1986).

Collum v. State, 281 Ga. 719, 722 (2) (642 SE2d 640) (2007).

Here, most of Ackey’s statement was almost entirely cumulative of Laye’s own statement and testimony from other witnesses, and thus not that important. Ackey’s statement corroborated only two pieces of information from Coleman’s in-court testimony that were not corroborated by Laye or others: Ackey’s statement confirms that those in the blue car knew in advance that a robbery was about to happen and it suggests that Laye had a gun. But we cannot overlook that Laye’s own statements and others that show he drove the car to Elizabeth Village based on a call from Potts; that he drove around the neighborhood four times before Potts arrived; and that he followed on foot those he knew were armed toward Espinoza’s home, went close enough to see the shooting, and drove one of the getaway cars, thereby strongly supporting his conviction for aiding and abetting the armed robbery. A defendant’s confession “may be considered on appeal in assessing whether any Confrontation Clause violation was harmless, see Harrington v. California, 395 U. S. 250 (89 SC 1726, 23 LE2d 284) (1969).” Cruz, 481 U. S. at 193-194. Thus, the State’s case that Laye was a party to the armed robbery was almost undisputed. And the primary witness, Coleman, who was cross-examined, testified that Laye had an even greater role in the incident, yet Laye was acquitted of further involvement, showing that the jury distinguished which parts of Coleman’s testimony to believe or which parts were corroborated. The jury did not even believe the portion of Ackey’s statement (or Coleman’s testimony, for that matter) suggesting that Laye had a gun; the jury acquitted Laye of gun possession. And although the prosecution argued at closing that Ackey’s statement meant that Laye went farther toward the scene of the shooting than Oliphant and Buchanan, this too is largely cumulative of Laye’s own statement that he was close enough to see the shooting. Considering all of these factors, we conclude “that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.” (Punctuation omitted.) Mason v. State, 279 Ga. 636, 638 (2) (619 SE2d 621) (2005). See, e.g., Collum, 281 Ga. at 722 (2) (statements possibly violating Bruton were cumulative of other properly admitted evidence). Compare Meadows v. State, 264 Ga. App. 160, 166 (5) (590 SE2d 173) (2003) (“only evidence directly identifying [defendant] as one of the men at the victim’s door was [co-defendant’s] improperly admitted statement”).

3. Given that any Bruton violation was harmless, we conclude that “[b]ecause [Laye] has failed to show that he was prejudiced by being tried jointly with [Ackey], the trial court did not abuse its discretion in denying his motion to sever.” Collum, 281 Ga. at 722 (2). Compare Gray, 523 U. S. at 194-195 (because the use of an accomplice’s confession “creates a special, and vital, need for cross-examination,” a prosecutor desiring to offer such evidence must comply with Bruton, hold separate trials, use separate juries, or abandon the use of the confession). Although Laye contends his defense was antagonistic to Ackey’s, the only real difference in their stories relative to aiding and abetting armed robbery was that Ackey stayed in the blue car and was not a get-away driver. And Laye essentially admits these differences.

4. Laye’s contention that his conviction should be reversed because his trial counsel was ineffective for failing to ask for a limiting instruction regarding Ackey’s statement is without merit, even when considering how the State’s closing argument reinforced that Ackey’s statement implicated Laye. Under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), the appellant “must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. [Cit.]” White v. State, 283 Ga. 566, 569 (4) (662 SE2d 131) (2008). Laye’s trial counsel testified at the hearing on the motion for new trial that failing to ask for a limiting instruction was a mistake on his part.

As we have already shown, no limiting instruction would have been sufficient under Bruton, and even the Bruton violation, for which counsel did object, was harmless error. Also, Coleman’s testimony indicated that Laye was much more involved, yet the jury acquitted Laye on all other counts. Thus, the jury either did not believe or found no corroboration of any greater involvement by Laye, including that Laye possessed a gun. We conclude that Laye cannot show that had a limiting instruction been given, the result of the trial would have been different; this is true even if counsel should have objected to the prosecutor’s argument that Ackey’s statement implicated Laye. See, e.g., Bunkley v. State, 278 Ga. App. 450, 454 (1) (a) (629 SE2d 112) (2006) (even if counsel’s performance was deficient, defendant failed to show prejudice). As shown above, Laye’s own statements were all that was needed to convict him of aiding and abetting an armed robbery. Accordingly, Laye cannot show the second prong of a claim of ineffective assistance: that there is a reasonable probability that the outcome of the trial would have been different absent the failures.

5. Laye also urges that his trial counsel was ineffective for failing to object to the hearsay found in his mother’s statements that she made when Laye was interrogated on July 21, 2006. As shown above, that hearsay included that one accomplice “told everybody you had a gun,” and that someone said that Laye “had a shoot-out with the white guy.” Although trial counsel objected on other grounds, he did not raise hearsay as a ground. Trial counsel admitted at the hearing on the motion for new trial that he should have objected on that ground. We agree. The only possible corroboration of Coleman’s testimony that Laye had a gun came from Ackey’s statement, which cannot be used against Laye, and from Laye’s mother’s hearsay. Whether Laye had a gun was a material contested point and to allow hearsay to that effect was deficient performance.

But again, Laye’s own testimony was sufficient to show that he was a party to armed robbery even if he did not have a gun. And he was acquitted of murder, multiple counts of aggravated assault and cruelty to children, and even possession of a gun during the commission of a crime and possession of a pistol or revolver by a person under the age of 18. The jury clearly decided that there was insufficient evidence to convict Laye of these other crimes, including aggravated assault on Espinoza and possession of a gun. And this occurred despite the fact that the jury was charged that a person can be convicted of possession of a gun based on actual possession, joint possession, or constructive possession. Accordingly, Laye cannot show that absent the improper hearsay evidence suggesting that he had a gun, the outcome of the trial would have been different. Our conclusion is not altered even when considering the combined effects of trial counsel’s errors. See Schofield v. Holsey, 281 Ga. 809, 812, n. 1 (642 SE2d 56) (2007).

6. Finally, Laye contends the trial court erred by not giving him an opportunity to object to the substitution of his original counsel and erred by allowing the substitution to occur.

Laye was initially represented by Allen Trapp, a private attorney appointed by the regional office of the Georgia Public Defender Standards Council (the “Council”). On January 30, 2007 (a little over six months after the crimes), the trial court signed an order substituting counsel for five of the defendants, including Laye and co-defendant Buchanan; the order had been prepared by the Council and it was signed ex parte by the judge. Laye’s new counsel filed an entry of appearance the next day. Nevertheless, on March 28, 2007, the Council filed a motion — largely redundant of the earlier order — to substitute trial counsel for four of the same five defendants, including Laye’s counsel but not Buchanan’s, as if the earlier order had not been effective. The motion asserted the ground that the Council did not have sufficient funds to pay for private counsel for these defendants. The motion indicated that current counsel had been advised and had agreed to the substitution and that the defendants had not objected. One day later the motion was granted, and the four defendants were assigned public defenders from around the state.

At the hearing on the motion for new trial, both Laye and his original counsel testified that they thought they had no choice at the time. The court itself stated that it thought that it had no authority to deny the motion and no authority to order that Laye’s initial counsel be paid. But counsel for co-defendant Buchanan did object, apparently between the time of the ex parte order and the subsequent motion as he was not named in the March motion, and he continued to represent Buchanan. Laye’s second attorney was eventually replaced as well, but his third attorney had upwards of one year to prepare for trial. That attorney filed motions to sever, to change venue and other motions, and he is at least partially responsible for obtaining an acquittal on all but one count for Laye. Finally, each defendant was given the right to have his own investigator, separate from the other defendants.

“[A] defendant who does not require appointed counsel [has the right] to choose who will represent him. [Cits.]” United States v. Gonzalez-Lopez, 548 U. S. 140, 144 (126 SC 2557, 165 LE2d 409) (2006). For indigent defendants, however, that right is circumscribed: “the right to counsel of choice does not extend to defendants who require counsel to be appointed for them.” Id. at 150-51, citing Wheat v. United States, 486 U. S. 153, 159 (108 SC 1692, 100 LE2d 140) (1988). Nevertheless, our Supreme Court has held that when an indigent defendant’s choice of counsel “is supported by objective considerations favoring the appointment of the preferred counsel, and there are no countervailing considerations of comparable weight” it is an abuse of the trial court’s discretion not to honor the request. Chapel v. State, 264 Ga. 267, 268 (2) (443 SE2d 271) (1994). Even so, an indigent defendant’s preference for certain counsel may be waived by action or declaration. Johnson v. State, 139 Ga. App. 829, 831 (1) (229 SE2d 772) (1976).

We conclude that Laye has not shown reversible error for several reasons. First, he waived any objection to a change in counsel. His contention that the trial court gave him no opportunity to object is belied by the fact that another defendant did object and thereby retained his original counsel. No explanation has been given for why Laye’s counsel could not also have objected. The motion to substitute counsel was served on counsel for Laye and it included the statement that counsel had been advised and had agreed to the substitution and that the defendants had not objected. Thus, Laye and his original counsel were on notice that the substitution was based on their failure to object. At that point, they had an obligation to speak up and correct any misinformation. This they did not do. Despite the confusion possibly caused by the ex parte order, Laye, through counsel, had an opportunity to set the record straight; but he failed to do so.

Second, there was a countervailing consideration presented to the court: that the Council was unable to pay for private attorneys and therefore a public defender was necessary. The trial court did not abuse its discretion by considering this factor.

Decided November 15, 2011

Reconsideration denied November 28, 2011

James D. Lamb, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

Finally, as shown above, Laye has not shown reversible ineffective assistance of counsel. Despite the two errors mentioned above, it is apparent that Laye’s trial counsel adequately represented him. As already stated, Laye was acquitted on all other counts save armed robbery, despite Coleman’s testimony that he had a gun, pointed it at Espinoza, and shot it. See Green, 218 Ga. App. at 651 (3) (a). Compare Gonzalez-Lopez, 548 U. S. at 146 (deprivation of right to counsel of a nonindigent defendant does not require a showing of prejudice).

Judgment affirmed.

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

       Laye’s attorney objected to the jury hearing any part of the second interview after Laye stated that he wanted an attorney. The trial court found that the officer did not ask any further questions about the facts of the case, and the court overruled the objection.

      “This circumstance strongly supports the conclusion that the assistance actually rendered by defendant’s trial counsel fell within that broad range of reasonably effective assistance which members of the bar in good standing are presumed to render.” (Citations omitted.) Green v. State, 218 Ga. App. 648, 651 (3) (a) (463 SE2d 133) (1995).

        Powell v. State, 272 Ga. App. 628, 630 (612 SE2d 916) (2005).

       The legislature apparently had cut the budget for the Council, including the funds available to hire conflict counsel.

       See also Caplin & Drysdale, Chartered, v. United States, 491 U. S. 617, 624 (109 SC 2646, 105 LE2d 528) (1989) (“those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts”); Jackson v. State, 252 Ga. App. 157, 158 (555 SE2d 835) (2001) (indigent defendant entitled to reasonably effective assistance of counsel, not counsel of his own choosing).


source: Caselaw Access Project

license: Public Domain

text:
    A11A1287, A11A1800.
    FULTON COUNTY BOARD OF ASSESSORS v. CALLIOPE PROPERTIES, LLC; and vice versa.
    (720 SE2d 312)
   Adams, Judge.

These related tax appeals involve the issue of attorney fees under OCGA § 48-5-311 arising in connection with ad valorem property assessments made by the Fulton County Board of Assessors (the “Board”) on two separate residential parcels owned by Calliope Properties, LLC (“Calliope”). In Case No. A11A1287, the Board appeals the trial court’s award of attorney fees with regard to one of these parcels, arguing that the trial court lacked subject matter jurisdiction to make the award. In Case No. A11A1800, Calliope appeals, arguing that the trial court erred in reducing to $1,600 its post-stipulation attorney fee award with regard to a second parcel.

Case No. A11A1287

The Board states that it is legally bound to determine the record owner and value of real property in Fulton County as of January 1 of each year for the purpose of establishing the property owner’s tax liability, citing OCGA §§ 48-5-6, 48-5-9, and 48-5-10. In that regard, the Board assigned a fair market value of $120,500 as of January 1, 2009, to the residential property located at 1653 Temple Avenue (“Parcel 1”). The parties apparently agree that Deutsche Bank National Trust Company (“Deutsche”) was the owner of record of the subject property as of that date. R. J. Morris, Calliope’s authorized agent and manager, apparently acquired title to Parcel 1 from Deutsche on or about January 30, 2009 for a purchase price of $30,000 and then re-conveyed Parcel 1 to Calliope the same day for a purchase price of $32,600.

Calliope filed a property tax return on Parcel 1 in its own name, asserting a 2009 value for Parcel 1 of $25,000. In response, the Board sent a duplicate assessment addressed to Deutsche, but at the address listed for Calliope on the property tax return. This assessment noted the return value of $25,000, but maintained the Board’s previous valuation of $120,500. Calliope filed a notice of appeal of this valuation on July 16, 2009. In response, the Board sent Deutsche a letter at Calliope’s address indicating that after a review of sales activity, data characteristics, assessments of similar properties and/or issues of depreciation, it saw no reason to change its evaluation. The Board’s decision was automatically certified as an appeal to the Fulton County Board of Equalization (the “BOE”) in Deutsche’s name. No Calliope representative attended the BOE hearing, and on April 28, 2010, the BOE issued a decision making no change in the valuation. Once again, this ruling was sent to Deutsche at Calliope’s address.

On May 4, 2010, Calliope filed a notice of appeal of the BOE determination, which included a demand for attorney fees and expenses “both in litigation and prior to suit.” The appeal was certified to the superior court listing Deutsche, not Calliope, as the taxpayer. Calliope subsequently filed a “Motion to Correct Misnomer” asking that the style of the appeal be changed to reflect Calliope instead of Deutsche as the plaintiff/taxpayer. The Board did not respond to the motion, and on September 14, 2010, the trial court issued an order directing the clerk of court to “immediately correct and substitute the proper name of ‘Calliope Properties, LLC’ for ‘Deutsche Bank National Trust Company’ as the party Plaintiff upon all records in this case.”

In the interim, the trial court ordered the parties to mediation, and although the parties agree that the mediation was unsuccessful, they disagree as to whether any agreements were reached. The Board contends that the parties agreed on a value for the subject property, leaving attorney fees as the only unresolved issue. Calliope asserts that no agreement was reached. The record contains no evidence of any agreement, and the matter proceeded to a jury trial on October 12, 2010, resulting in a verdict setting the value of Parcel 1 for ad valorem tax purposes at $77,800.

Calliope subsequently filed a motion under OCGA § 48-5-311 to recover its costs and attorney fees on the ground that the verdict’s value of $77,800 was less than 85 percent of the last administrative valuation of $120,500 established by the Board and affirmed by the BOE. OCGA § 48-5-311 (g) (4) (B) (ii) provides:

If the final determination of value on appeal is 80 percent or less of the valuation set by the county board of equalization or hearing officer as to commercial property, or 85 percent or less of the valuation set by the county board of tax assessors as to other property, the taxpayer, in addition to the interest provided for by this paragraph, shall recover costs of litigation and reasonable attorney’s fees incurred in the action.

The Board opposed Calliope’s motion. Following an evidentiary hearing on the issue of attorney fees, the trial judge found that Calliope’s claimed fees of $21,643.51 were reasonable and necessary for the services rendered and granted Calliope’s motion.

The Board appeals this award, contending that the trial court lacked subject matter jurisdiction (1) to issue an attorney fee award to Calliope because Deutsche was the property owner/taxpayer as contemplated under OCGA § 48-5-311 and thus only Deutsche could prosecute the tax appeal in this case; (2) to grant attorney fees not contemplated by OCGA § 48-5-311; and (3) to grant attorney fees that were not reasonable or necessary. This Court applies “a de novo standard of review to purely legal questions such as whether a trial court has jurisdiction over a matter.” (Citation and punctuation omitted.) Hall County Bd. of Tax Assessors v. Avalon Hills Partners, 307 Ga. App. 520, 522, n. 7 (705 SE2d 674) (2010).

1. The Board frames its argument that Deutsche, not Calliope, was the proper party to file the tax appeal in this case as an issue of subject matter jurisdiction, noting that such a jurisdictional issue cannot be waived. See Blue Cross & Blue Shield of Ga. v. Deal, 244 Ga. App. 700, 707 (3) (536 SE2d 590) (2000); Rockdale County v. Finishline Indus., 238 Ga. App. 467, 469 (2) (518 SE2d 720) (1999). The Board argues that because Deutsche, which the Board contends was “the taxpayer” for 2009 as defined under OCGA § 48-5-311, failed to exhaust its administrative remedies, the trial court lacked jurisdiction to consider a tax appeal as to Parcel 1. See Hooten v. Thomas, 297 Ga. App. 487, 489 (677 SE2d 670) (2009) (if taxpayer fails to exhaust administrative remedies under OCGA § 48-5-311, superior court lacks subject matter jurisdiction to decide appeal).

The Board does not contend, however, that Calliope failed to take the steps necessary to exhaust the available administrative remedies with regard to the tax assessment on Parcel 1. And, in fact, Calliope pursued all available administrative remedies to contest the Board’s valuation of the property, i.e., filing a property return, appealing the Board’s valuation, and appealing the BOE’s ruling to the superior court. See OCGA § 48-5-311. Thus, the real issue is not whether the administrative remedies were exhausted, but rather whether Calliope was the proper party to take such steps.

Moreover, the Board does not challenge the proposition that if Calliope had standing as a matter of law to appeal to the superior court, the trial court possessed the power to determine Calliope’s appeals and to impose any resulting judgment upon the parties to the litigation, i.e., the court lawfully could exercise jurisdiction over both the subject matter of the petition for tax appeal and over the parties. Accordingly, the Board’s challenge is not to the trial court’s subject matter jurisdiction, but rather to Calliope’s standing to invoke the powers of the court, i.e., whether Calliope was the real party in interest to serve as party plaintiff.

The Board has waived any such argument, however, by failing to raise it in the trial court. Although the appeal to the superior court was originally certified in Deutsche’s name, the trial court issued an order substituting Calliope as the party plaintiff without any objection by the Board. This order was made in response to Calliope’s “Motion to Correct Misnomer.” A motion to correct a misnomer pursuant to OCGA § 9-10-132 is not ordinarily employed to change parties or add a new and distinct party. See Foskey v. Vidalia City School, 258 Ga. App. 298, 300 (a) (574 SE2d 367) (2002). But Calliope’s motion did not specifically invoke OCGA § 9-10-132, and, in any event, “courts are not bound by the designation given motions by the parties,” but rather “look to substance over nomenclature.” (Citation and punctuation omitted.) Miller v. State, 264 Ga. App. 801, 803 (b) (592 SE2d 450) (2003). See also Roberts v. Bienert, 183 Ga. App. 751, 755 (360 SE2d 25) (1987). A review of the motion makes it apparent that it sought to have the trial court substitute Calliope for Deutsche as the plaintiff, as it was Calliope, not Deutsche, that filed the property return, as well as the appeals to the BOE and to the superior court. Thus, the motion was more in the nature of a motion to substitute a party under OCGA § 9-11-17. Under that statute, “[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest.” OCGA § 9-11-17 (a). Thus the failure to raise a timely objection based upon the real party in interest results in a waiver of that issue. See Rome Housing Auth. v. Allied Bldg. Materials, 182 Ga. App. 233, 237 (2) (355 SE2d 747) (1987) (real-party-in-interest objection may be made at any time up to and including a trial on the merits; otherwise it is waived). See also Lewis v. Van Anda, 282 Ga. 763, 765 (1) (653 SE2d 708) (2007) (failure to assert plaintiffs alleged lack of standing prior to the entry of judgment results in the waiver of such defense); Hollberg v. Spalding County, 281 Ga. App. 768, 773 (2) (a) (637 SE2d 163) (2006) (same as to real party in interest).

Accordingly, we do not reach the issue of whether Calliope was the real party in interest with standing to appeal the 2009 valuation and assessment of Parcel 1 because the Board waived that issue below.

2. The Board also argues that the trial court lacked subject matter jurisdiction to award attorney fees because Calliope failed to meet the statutory requirements to recover such fees. The version of OCGA § 48-5-311 (g) (4) (B) (ii) applicable to this case provides that a taxpayer cannot recover attorney fees “when the property owner has failed to return for taxation the property that is under appeal.” The Board asserts that because Deutsche was the property owner as of January 1, 2009, Deutsche was required to return Parcel 1 for assessment that year. The Board argues that because Calliope failed to prove that Deutsche filed a return of the property or that it assigned Calliope its rights to do so, Calliope failed to meet the requirements for recovering attorney fees under OCGA § 48-5-311.

It is undisputed, however, that Calliope filed a return on the property for 2009 and that the Board acknowledged and rejected Calliope’s return value. Thus, as in Division 1, the Board’s argument is not actually jurisdictional in nature, but instead the Board argues that Calliope was not the appropriate party to file the 2009 return. Under OCGA § 48-5-15, a property return may only be made by the property owner or its authorized agent, or it is subject to rejection by the county tax commissioner. See Cobb County Bd. of Tax Assessors v. Morrison, 249 Ga. App. 691, 692 (548 SE2d 624) (2001).

Here, not only was Calliope’s return not rejected by the county tax commissioner, it was processed without objection by the Board as if Deutsche had filed it. Although Calliope clearly identified itself as the property owner on the return and all subsequent correspondence and appeals, the Board failed to detect this discrepancy. Rather, it addressed all further correspondence to Deutsche, albeit at Calliope’s address, and listed Deutsche’s name on all further filings, including its certification of the appeal to the superior court. Moreover, when Calliope raised the discrepancy by motion before the superior court, the Board failed to take any action to contest Calliope’s standing to file the tax return and/or the subsequent appeals. Under these circumstances, we find that the Board waived its argument that Calliope was not entitled to attorney fees under OCGA § 48-5-311 (g) (4) (B) (ii) on the ground that Deutsche failed to file a property tax return.

3. The Board further argues that the trial court lacked subject matter jurisdiction to grant attorney fees that were not reasonable or necessary under OCGA § 48-5-311. As an initial matter, we agree with Calliope that this argument has absolutely nothing to do with the trial court’s subject matter jurisdiction. Nevertheless, we will address the Board’s argument that the attorney fees were not reasonable or necessary under OCGA § 48-5-311. We review the trial court’s determination in this regard for an abuse of discretion. See generally, Greer v. Davis, 244 Ga. App. 317, 321 (3) (534 SE2d 853) (2000) (OCGA § 9-15-14 fees).

The trial court held an evidentiary hearing on attorney fees, during which both Calliope’s counsel and an expert employed by the Board testified as to whether the fees requested were reasonable and necessary. After reviewing the evidence and the arguments of the parties, we find that the amount of the fee award granted by the trial court was within the range of the evidence adduced at the hearing, and the award is not manifestly unreasonable on its face, especially since the issue of valuation necessitated a jury trial. Even if this Court or another trial judge might have come to a different calculation as to the reasonable and necessary attorney fees, we cannot say that the trial court abused its discretion in awarding $21,643.51 to Calliope under the evidence presented.

Case No. A11A1800

4. The Board set the 2009 valuation for the residential property located at 2296 Ewing St. (“Parcel 2”) at $71,500. After Calliope appealed this determination, the board set a revised 2009 value at $58,900. Calliope appealed this assessment to the BOE and then to the superior court. After mediation and other negotiations, the parties reached a stipulation setting the value of the property at $40,000. The stipulation expressly provided that it was not “intended to limit or to waive the ability of either [Calliope] or [the Board] to seek or to contest the award of costs of litigation including attorney’s fees associated with the instant appeal.”

Calliope subsequently filed a motion pursuant to OCGA § 48-5-311, requesting $11,163 in attorney fees and $126 in costs. After hearing argument and evidence, the trial court entered a final judgment setting the 2009 value of Parcel 2 at $40,000, which the court found to be less than 85 percent of the Board’s valuation of the property. And the trial court awarded Calliope attorney fees in the amount of $2,000 for legal work its attorney performed on the case prior to the parties’ stipulation and $1,600 for post-stipulation work, as well as $126.50 in costs, for a total award of $3,726.50.

Calliope appeals the trial court’s reduction of the post-stipulation attorney fees awarded in this case to $1,600 from the approximately $5,300 requested. The attorney fee hearing in Case No. A11A1800 was held just four days after the attorney fee hearing in Case No. A11A1287 before a different trial judge. The Board was represented by different counsel at each hearing, but they used the same expert to contest Calliope’s fees.

The cases necessarily share common issues, although in Case No. A11A1800, the parties arrived at a stipulation as to the value of Parcel 2, the subject property, while Case No. A11A1287 necessitated a jury trial to resolve the valuation of Parcel 1. The post-stipulation work by Calliope’s counsel in this case involved the issue of attorney fees, but amounted to almost one-half of the total fees requested. The trial court’s order found “nothing complex factually or legally about this particular tax appeal that would merit” the counsel’s billing rate of $305 per hour. The court also found that some of the work for which Calliope sought reimbursement “could easily have been billed by a secretary or a paralegal at a much lower biller rate or at no charge to the client.” Based upon these factors and the evidence and argument adduced at the hearing, the trial court awarded Calliope $1,600 for briefing the attorney fee motion and attending the hearing, after noting that the issue was strongly disputed. Having reviewed the evidence and considering the circumstances, we cannot say that the trial court abused its discretion in reducing the attorney fee award in this manner. See Doe v. HGI Realty, 254 Ga. App. 181, 183 (561 SE2d 450) (2002) (affirming reduction in attorney fee award from $118,354.40 to $30,000 based upon trial court’s determination of the fees reasonable and necessary to perform the work).

Judgments affirmed.

Barnes, E J., and Blackwell, J., concur.

Decided November 28, 2011.

Case No. A11A1287

Sandy R. Burney, for appellant.

Dietrick, Evans, Scholz & Williams, Robert W. Scholz, John F. Woodham, for appellee.

Case No. A11A1800

Dietrick, Evans, Scholz & Williams, Robert W. Scholz, for appellant.

Matthew C. Welch, Pat D. Dixon, Jr., for appellee.

       No issues of service arise because Calliope was the plaintiff in the appeal, and after Calliope filed a property return, the Board began sending all its filings to Calliope’s address.

       OCGA § 48-5-15 (a) provides: “All improved and unimproved real property in this state which is subject to taxation shall be returned by the person owning the real property or by his or her agent or attorney to the tax receiver or tax commissioner of the county where the real property is located.” Accordingly, “[ujnder Georgia’s ad valorem tax statutes, each property owner has a personal affirmative duty to return the fair market value of taxable property including any improvements and must do so annually, in writing, and under oath.” Intl. Auto Processing v. Glynn County, 287 Ga. App. 431, 433 (1) (651 SE2d 535) (2007).

       Accordingly, Calliope does not appeal the reduction in fees for the pre-stipulation legal work.

       These cases were just two of a number of cases filed by counsel on behalf of Calliope in Fulton County.

       It is worth noting that the evidence at both hearings showed that Calliope’s attorney actually owns a 50 percent interest in the company that owns Calliope.


author: Phipps, Presiding Judge.

text:
    A11A1349.
    EAGLE WEST, LLC v. GEORGIA DEPARTMENT OF TRANSPORTATION.
    (720 SE2d 317)
   Phipps, Presiding Judge.

Eagle West, LLC challenges a superior court order affirming the final agency decision of the Georgia Department of Transportation (DOT), which denied permits for outdoor advertising signs. For reasons that follow, we affirm.

On December 30, 2009, Eagle West submitted applications to the DOT seeking permits to erect and maintain outdoor advertising signs adjacent to State Route 405, a/k/a Interstate 95 (1-95), near Horse Stamp Church Road in an unincorporated area of Camden County. On February 24, 2010, the DOT denied the permit applications “because the proposed sign locations are within the 500 foot blocked out zone for the proposed ramp interchange” to connect 1-95 and Horse Stamp Church Road. The DOT cited OCGA § 32-6-75 (a) (18) of the Georgia Outdoor Advertising Control Act.

In relevant part, that provision states, “No sign . . . shall be erected or maintained which . . . [i]s located outside of the corporate limits of a municipality and adjacent to an interstate highway within 500 feet of an interchange, intersection at grade, or safety rest area.” As the parties acknowledge, the foregoing 500-foot zone is commonly referred to as the “blocked out zone.”

Eagle West thereupon obtained review by an administrative law judge (ALJ) with the Office of State Administrative Hearings, asserting that the plain language of OCGA § 32-6-75 (a) (18) prohibited erecting and maintaining signs only near an “existing interchange” and that because there was no “existing interchange” at the intersection of 1-95 and Horse Stamp Church Road, the DOT’s denial of the permit applications should be reversed.

Acknowledging that “the interchange [was] not yet on the ground,” the DOT countered that it was authorized to deny the permit applications, given the circumstances as set forth in the affidavit of the project manager for the construction project “known as the 1-95 Interchange with Horse Stamp Church Road, Camden County, Georgia.” Concerning the status of the project, he stated that “all preconstruction work on the project has been completed. The design, environmental and right of way phases are complete, the right of way has been certified, and funding is approved for the construction phase.” Further, he stated that a construction contract would be awarded on or about July 16, 2010, ground was expected to be broken by September 2010, and construction was scheduled to be completed with the interchange fully operational within 24 months “from notice to proceed of the construction contract.” Citing Fulton County v. Davidson, the DOT sought a broad holding that because construction of the interchange would begin within two years, denial of the permit applications was proper.

The ALJ rejected the DOT’s argument and ruled in favor of Eagle West, determining that OCGA § 32-6-75 (a) (18) “specifically prohibits the placement of signs within 500 feet of an interchange (not a ‘present road,’ ‘present interchange,’ ‘future interchange,’ etc). This Court will not assume that the General Assembly meant to include proposed interchanges as part of this prohibition.”

The DOT obtained agency review of the ALJ’s decision. And in the final agency decision, the deputy commissioner of the DOT determined that, contrary to the ALJ’s characterization, the interchange was not “merely ‘proposed’ instead, “the interchange is nearly completed in the sense that construction is the very last phase of a very long series of events”; and Eagle West’s signs “would have to be removed . . . once the interchange is completed and operational since maintenance of a sign in the block[ed]-out zone would violate . . . OCGA § 32-6-75 (a) (18).” Further, the deputy commissioner reasoned that “construing ‘interchange’ to include only infrastructure that is already in operation, as the ALJ appears to do, would lead to absurd and highly impractical results.” As examples, the deputy commissioner cited the granting of permits for “signs that would have to be torn down in short order,” and that “since removal of the sign would be considered a ‘taking,’ the [DOT] would be required to provide just compensation to the billboard owner.” The deputy commissioner stated further in the final agency decision that the ALJ had “incorrectly dismissed the applicability of Fulton County v. Davidson” and that for purposes of outdoor advertising permits, an interchange “does exist at I-[95] and Horse [Stamp Church] Road. No signs can be erected within the block[ed]-out zone surrounding this interchange.” Consequently, the DOT’s final agency decision reversed the ALJ’s decision, ruling that Eagle West’s permit applications were denied.

The superior court affirmed the DOT’s final agency decision, albeit upon a more expansive holding: “[0]nce the location of an interchange is publicly announced, [the DOT] is authorized to deny requests for permits to build signs at or adjacent to the site of the interchange which would violate the limitations imposed by OCGA § 32-6-75 (a) (18).”

We granted Eagle West’s application for discretionary review. Eagle West contends that the superior court erred by affirming the denial of its permit applications; it also contests the superior court’s holding that OCGA § 32-6-75 (a) (18) allows the DOT to deny applications upon public announcement of the location of an interchange.

The General Assembly has delegated, “in no uncertain terms, . . . the regulation of outdoor advertising to the DOT.” Notwithstanding, “DOT decisions regarding outdoor advertising permits are subject to judicial review pursuant to the Georgia Administrative Procedure Act.” Thereunder, judicial review of an administrative decision requires the court to determine whether the findings of fact are supported by “any evidence” and to examine the soundness of the conclusions of law that are based upon the findings of fact. While the judiciary accepts the findings of fact if there is any evidence to support the findings,

the court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the agency; ... (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
And both this Court and the superior court review conclusions of law de novo. Finally, when this Court reviews a superior court’s order in an administrative proceeding, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the administrative agency.

Guided by these principles, we turn to the issues before us. Eagle West maintains that the DOT was not authorized to deny its permit applications under OCGA § 32-6-75 (a) (18). It argues that the provision’s language, “within 500 feet of an interchange,” is plain and unambiguous, and therefore the Code provision “does not prohibit signs in areas where there could be a future interchange, where an interchange is planned but does not yet exist, or, as the trial court ruled, in an area where ‘the location of a new interchange is publicly announced.’ ”

While judicial deference is afforded an agency’s interpretation of statutes it is charged with enforcing or administering, the agency’s interpretation is not binding on the courts, which have the ultimate authority to construe statutes. It is the role of the judicial branch to interpret the statutes enacted by the legislative branch and enforced by the executive branch, and administrative rulings will be adopted only when they conform to the meaning which the court deems should properly be given. The judicial branch makes an independent determination as to whether the interpretation of the administrative agency correctly reflects the plain language of the statute and comports with the legislative intent.

Our legislature has expressly stated its intent in enacting the Outdoor Advertising Control Act: “It is the intention of the General Assembly to provide a statutory basis for the regulation of outdoor advertising, such basis to be consistent with the public policy relating to areas adjacent to roads of the state highway system which also form a part of the interstate and primary systems of highways declared by the Congress in Title 23, Section 103, United States Code.” Furthermore,

[t]he General Assembly declares it to be the policy of this state that the erection or maintenance of outdoor advertising in areas adjacent to the rights of way of roads of the state highway system, which roads are also a part of the interstate and primary systems of highways within the state, shall be regulated in accordance with the terms of this part and the regulations promulgated by the commissioner pursuant thereto and that all outdoor advertising which does not conform to the requirements of this part is a public nuisance.

As this court has ascertained, “The intent of the General Assembly, when the entire [Outdoor Advertising Control] Act is read together, is to protect the public traveling along the highway from distractions.” And with respect to the specific statutory provision at issue here, we have determined: “The minimization of distractions by signs in the area of an interchange is precisely the intent and purpose behind the blocked-out zone contemplated in [OCGA § 32-6-75 (a) (18)].”

Focusing solely on the statutory clause “within 500 feet of an interchange” falls short of adequately addressing the underlying issue presented: whether the record shows that the DOT was authorized to deny the permit applications. Having considered the cited clause, not only within the context of the statutory provision in which it is found, but also as part of related statutory provisions so as to give effect to the legislative scheme as a whole, we cannot conclude that the DOT impermissibly denied Eagle West’s permit applications.

At the relevant time, OCGA § 32-6-74 (a) stated that permits and renewals

shall be issued for and shall be valid only if the sign is erected and maintained in accordance with this part during the 12 month period next following the date of issuance. . . . Upon receipt of a properly executed application and the appropriate fee for the erection or maintenance of a sign which may be lawfully erected or maintained pursuant to this part, the department shall. . . issue a permit or renewal authorizing the erection or maintenance, or both, of the sign for which application was made.

As defined by the Outdoor Advertising Control Act, “erect” means “to construct, build, raise, assemble, place, affix, attach, create, paint, draw, or in any other way bring into being or establish”; “maintain” means “to allow to exist.” And, as stated above, OCGA § 32-6-75 (a) (18) particularly provides, “No sign . . . shall be erected or maintained . . . within 500 feet of an interchange.”

Although Eagle West points to undisputed evidence that, as of the date it submitted its permit applications, ground had not been broken to connect 1-95 and Horse Stamp Church Road, that circumstance is not dispositive of whether Eagle West was entitled to the requested permits. Rather, upon the receipt of Eagle West’s properly executed permit applications, together with the appropriate fees, the DOT was required to determine whether Eagle West’s signs could be erected without violating, inter alia, OCGA § 32-6-75 (a) (18). Given the evidence in this case of the completed tasks of the interchange project, as well as the time line to complete the outstanding work, the DOT was authorized to determine that the interchange project had progressed to a point such that, for purposes of OCGA § 32-6-75 (a) (18), it constituted an interchange. Because the denial of Eagle West’s permit applications was thus not improper, Eagle West has not demonstrated any basis for reversing or modifying the final agency decision.

By so concluding, we have rejected Eagle West’s argument that, because the word “interchange” in OCGA § 32-6-75 (a) (18) is unaccompanied by any modifier such as “planned,” “proposed,” or “future,” the word is plain and unambiguous as limited to interchanges that are structurally “existing.” Eagle West’s argument disregards that the word “interchange” also is unaccompanied in the statute by any other modifier such as “functioning,” “operational,” “paved,” or “fully constructed.” The legislature could have included circumscribing language, but it did not. Thus, we do not conclude that the word “interchange” is so plain and unambiguous that the General Assembly intended it to be limited as urged by Eagle West. Moreover, “[p] articular words of statutes are not interpreted in isolation; instead, courts must construe a statute to give sensible and intelligent effect to all of its provisions, and must consider the statute in relation to other statutes of which it is part.” The word “interchange” then must be considered within the context of OCGA § 32-6-75 (a) (18), which in turn,

must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes “in pari materia,” are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.

Decided November 28, 2011

Schreeder, Wheeler & Flint, Mark W. Forsling, for appellant.

Samuel S. Olens, Attorney General, Mary Leddy Volkert, Joanna M. Campbell, Assistant Attorneys General, for appellee.

Having done so, we conclude that the final agency decision denying Eagle West’s permit applications comports with OCGA § 32-6-75 (a) (18) and the Outdoor Advertising Control Act. It also comports with OCGA § 32-1-2, which states:

The purpose of [Title 32, which is known as the Georgia Code of Public Transportation and wherein lies the Outdoor Advertising Control Act] is to provide a code of statutes for the public roads and other transportation facilities of the state, the counties, and municipalities of Georgia. The legislative intent is to provide an effective legal basis for the organization, administration, and operation of an efficient, modern system of public roads and other modes of transportation.

As has been legislatively declared: “[The Georgia Code of Public Transportation] shall be construed liberally to effectuate its purposes.”

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       See The Lamar Co. LLC v. Whiteway Neon-Ad, 303 Ga. App. 495 (693 SE2d 848) (2010) (recognizing that the DOT is the state agency charged with the regulation of outdoor advertising).

       OCGA § 32-6-70 et seq.

       (Emphasis supplied.)

       253 Ga. 734 (325 SE2d 135) (1985).

       Supra. In particular, the DOT’s final agency decision noted that Davidson was “based on statutory language pertaining to rights-of-way, but the Davidson Court emphasized the same policy considerations that were present here. Specifically, it emphasized the Department’s need for orderly planning and construction of public roads and highways. . . . 253 Ga. at 735.”

       See generally Fulton County v. Action Outdoor Advertising, JV, LLC, 289 Ga. 347, 349 (1) (711 SE2d 682) (2011) (holding that sign companies had obtained vested rights in the issuance of the permits they sought).

        Walker v. Dept. of Transp., 279 Ga. App. 287, 293 (2) (b) (630 SE2d 878) (2006); see The Lamar Co. LLC, supra; OCGA § 32-6-90 (authorizing the DOT to promulgate regulations governing permits for outdoor advertising).

        Walker, supra at 288 (1), citing OCGA § 32-6-95 (a).

        Pruitt Corp. v. Ga. Dept. of Community Health, 284 Ga. 158, 160 (3) (664 SE2d 223) (2008); The Lamar Co. LLC, supra at 497-498.

        Pruitt Corp., supra at 161 (3); The Lamar Co. LLC, supra at 498.

       OCGA § 50-13-19 (h); see Pruitt Corp., supra; The Lamar Co. LLC, supra.

        The Lamar Co. LLC, supra (citations and punctuation omitted); City of LaGrange v. Ga. Public Svc. Comm., 296 Ga. App. 615, 616 (675 SE2d 525) (2009).

        Handel v. Powell, 284 Ga. 550, 553 (670 SE2d 62) (2008) (citations and punctuation omitted).

       OCGA § 32-6-70 (a); see Walker, supra at 293 (2) (b).

       OCGA § 32-6-70 (a).

        Turner Communications Corp. v. Ga. Dept. of Transp., 139 Ga. App. 436, 438 (2) (b) (228 SE2d 399) (1976) (emphasis omitted); see Nat. Advertising Co. v. Ga. Dept. of Transp., 149 Ga. App. 334, 338 (3) (254 SE2d 571) (1979).

        Nat. Advertising Co., supra at 338 (3) (reviewing former Code Ann. § 95A-916 (r), which pertinently provided, “No sign . . . shall be erected or maintained which ... is located outside of the corporate limits of a municipality and adjacent to an interstate highway within 500 feet of an interchange, intersection at grade, or safety rest area.”); see Ga. Dept. of Transp. v. Spells Sign Co., 141 Ga. App. 350, 353 (233 SE2d 435) (1977).

       See Harris v. State, 286 Ga. 245, 247 (4) (686 SE2d 777) (2009) (looking beyond the specific provision at issue to the statutory scheme as a whole).

       OCGA § 32-6-74 was amended in 2011, see Ga. L. 2011, p. 601, § 1, but the amendment controls no issue in this case.

       OCGA § 32-6-71 (5).

       OCGA § 32-6-71 (10).

       OCGA § 32-6-75 (a) (18).

       OCGA § 32-6-74 (a).

       See generally OCGA § 1-3-1 (b) (“In all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter, which shall have the signification attached to them by experts in such trade or with reference to such subject matter.”).

       See OCGA § 50-13-19 (h); Pruitt Corp., supra; The Lamar Co. LLC, supra. We need not decide whether the final agency decision should have adopted the bright-line rule proposed to the ALJ by the DOT - that where construction of an interchange would begin within two years, denial of a permit application is proper; nor do we adopt the superior court’s holding that the DOT may deny applications upon public announcement of the location of an interchange.

       See OCGA § 1-3-1 (a) (in all interpretations of statutes, courts shall look diligently for the intention of the General Assembly); Innovative Clinical & Consulting Services, LLC v. First Nat. Bank of Ames, 279 Ga. 672, 675 (620 SE2d 352) (2005) (courts cannot reject the plain language of a statute unless it will lead to unreasonable consequences or absurd results not contemplated by the legislature); Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981) (legislative intent prevails over the literal import of words; statutory language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent).

        U. S. Bank Nat. Assn. v. Gordon, 289 Ga. 12, 14-15 (4) (709 SE2d 258) (2011) (citations and punctuation omitted).

        Pafford v. Biomet, 264 Ga. 540, 542 (1) (448 SE2d 347) (1994) (citation omitted).

       OCGA § 32-1-11; see generally Walker, supra at 291 (2) (a) (OCGA § 32-2-2 generally provides DOT with authority to manage and maintain the state’s highways); OCGA § 32-2-2 (a) (1) (DOT’s powers and duties, “unless otherwise expressly limited by law, shall include but not be limited to the following: . . . [The DOT] shall plan, designate, improve, manage, control, construct, and maintain a state highway system and shall have control of and responsibility for all construction, maintenance, or any other work upon the state highway system and all other work which may be designated to be done by the department by this title or any other law”) (emphasis supplied), (b) (“In addition to the powers specifically delegated to it in this title, the [DOT] shall have the authority to perform all acts which are necessary, proper, or incidental to the efficient operation and development” of the state highway system; and “this title shall be liberally construed to that end.”).