text:
    A13A1997.
    HOKE v. THE STATE.
    (755 SE2d 876)
   DOYLE, Presiding Judge.

Stephen R. Hoke appeals from the denial of his motion for new trial following his conviction by a jury of aggravated child molestation (one count) and child molestation (three counts). Hoke contends that the trial court erred by (1) granting ex parte a continuance of the trial and excusing the unsworn jury, (2) failing to sua sponte recuse itself, (3) allowing a certain witness to bolster the victim’s credibility, (4) admitting unrelated uncharged acts committed against the victim’s mother and failing to give a limiting instruction as to that evidence, and (5) admitting an unredacted recording of a police interview of Hoke containing allegedly improper comments on Hoke’s and the victim’s credibility. He also raises an ineffective assistance of counsel claim based on certain enumerations. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that Tina Hoke moved to Georgia from Ohio with her eight-year-old daughter, A. C. Tina moved in with Stephen Hoke to get away from her husband, Stephen’s brother, Charles Hoke, who lived in Ohio. During the time Tina and A. C. stayed with Stephen, Stephen touched A. C. inappropriately while bathing her, “french kissed” her, masturbated with her, forced her to perform oral sex on him, and touched their genitals together. A. C. disclosed the abuse to her mother, who confronted Stephen, and he denied it and beat A. C. based on the accusation. Thereafter, on a visit to Ohio, A. C. disclosed the abuse to her stepfather, Charles, who consulted an attorney and ultimately contacted A. C.’s biological father, Matthew Corliss. Based on advice from his attorney, Corliss arranged for a forensic interview. During a subsequent police investigation, Hoke volunteered to be interviewed by police, at which time he denied the abuse.

Based on A. C.’s disclosures of abuse, Hoke was charged with child molestation and aggravated child molestation. Following a jury trial, he was convicted on all counts, and his motion for new trial was denied, giving rise to this appeal.

1. Hoke first contends that the trial court erred by excusing the jury after an ex parte conference with the State about a problem with the State’s witnesses. Late in the day after the first day of trial (Monday), the State learned that one of its expert witnesses, who was located in Ohio, was called back by his employer while at the airport to fly to Georgia to testify the next day. The employer had refused to allow the witness to testify absent a valid subpoena from an Ohio court. The next morning the State reported the problem to the court and to Hoke’s counsel. Hoke’s counsel agreed to a one- or two-day delay to allow the State to address the problem. Later that same afternoon, the State gave the court an update outside the presence of Hoke or his counsel, and the court dismissed the jury, which had been selected but not sworn in.

Two days later, on Thursday, the court convened a hearing on the State’s motion for a continuance, and Hoke opposed the continuance, citing his readiness, the lack of a valid subpoena, and his speedy trial demand. The trial court granted the continuance and at the end of the hearing, after the court had dismissed the parties, Hoke’s counsel requested clarification as to whether the court was granting a mistrial or continuing the case with the same jury. The court informed Hoke’s counsel for the first time that it had already dismissed the jury. Over counsel’s continued objection to the ex parte dismissal, the trial court granted the State a continuance. Hoke now assigns this as error.

This Court addressed a similar situation in Mora v. State, in which a jury was dismissed ex parte before being sworn in. In that case we addressed the trial court’s grant of a continuance as follows:

While we apply the strict terms of OCGA § 17-8-25[] [addressing the grounds for a continuance based on the absence of a witness] in reviewing the denial, as opposed to the grant, of a motion for continuance, the grant of a continuance despite the absence of a subpoena does not automatically constitute error. OCGA § 17-8-33 (a) authorizes a court to grant a continuance whenever required by the absence of a material witness or the principles of justice. [Prior to and during the hearing on the continuance] the [S]tate set forth its reasons why the absent witness’s testimony was relevant and material to the case. The grant or denial of a motion for continuance is within the sole discretion of the trial judge, and absent a showing that such discretion was abused, it will not be controlled. The trial court did not abuse its discretion by allowing a continuance in order to allow the [Sjtate to procure the attendance of a material witness. The fact that the continuance was granted ex parte does not change this result.

We find no reason to depart from this reasoning here. The original jury was not sworn, so jeopardy had not attached; the State had shown that the absent witnesses were material; trial resumed one month later; and Hoke was not surprised by the presence of the witnesses at issue. Accordingly, while we do not condone the ex parte nature of the trial court’s actions in this case, we discern no error requiring reversal.

2. Hoke next contends that the trial court should have sua sponte recused itself after the ex parte communication and dismissal of the jury. But Hoke did not move for recusal within five days as required by Uniform Superior Court Rule 25.1. Because “appellant did not timely file a motion for [the trial judge] to recuse himself, the matter of recusal is waived.”

3. Hoke also argues that the trial court erred by allowing the State’s expert witness, Dr. Paul McPherson, to bolster the credibility of the victim, and that his attorney’s failure to object to the testimony constituted ineffective assistance of counsel.

McPherson performed a physical examination of A. C. in Ohio, and at trial, he was qualified as an expert in child sexual abuse. During the State’s direct examination, he testified as follows:

Q: Now, when children are in interviews, do you look for coaching?
A: When we have children come in for an evaluation ... we look for other reasons why the child may say they were touched. . . . And that will help us to determine if what the child says is consistent with our evaluation. ... In terms of coaching, so to speak, a child — we ask for details and context of the abusive events. So, for example, going back to the bathtub ... I could have just thought, well he was just washing her like a dad would or a stepfather would. But when you ask details and context, then you start to get information that a child wouldn’t learn from being coached.
For example, in [A. C.’s] case she talked about how it hurt to pee after he touched her. Okay; that is something that can occur if the area where the pee comes out, called the urethra, is rubbed the wrong way or irritated. Okay; that’s something that a child typically will not know unless it’s actually happened.
And so those type of details and context, verbal interactions, sensory motor details, add credibility so to speak to the child’s disclosure and we can use that as part of our diagnosis.

(a) This Court has addressed nearly identical testimony and found it to be admissible in the present context. “An expert witness may not bolster the testimony of a victim by opining as to whether the complaining witness is telling the truth, because that is an ultimate issue of fact and the inference to be drawn is not beyond the ken of the average juror.” But an expert may properly describe examination techniques and provide opinions about whether the results of an evaluation are “consistent with sexual abuse.” The testimony here was given in this context;

[establishing the credibility of the indicted acts of sexual abuse is what the State’s case is all about and is the purpose for such expert testimony in the first place; the fact that such testimony may also indirectly, though necessarily, involve the child’s credibility does not make it inadmissible.

In this case, “[t]here was no error in admitting this testimony because, although it supported the child’s claims, it did not directly address the credibility of the victim or express a direct opinion that the victim was sexually abused.”

(b) Moreover, because we find no error in admitting this testimony, this argument cannot support Hoke’s claim for ineffective assistance of counsel.

4. (a) Hoke next contends that the trial court erred by admitting evidence that he choked and struck Tina and by failing to give a limiting instruction as to that evidence. He argues that this evidence was inadmissible as similar transactions. But the evidence was not offered as similar transactions to prove the offenses themselves; it was offered to explain Tina’s passive approach to reporting the abuse. Tina testified that Hoke was “controlling,” and that her fear of Hoke prevented her from calling 911. The evidence of Hoke’s violence toward Tina was evidence supporting this theory of the case, not as similar transaction evidence. “Whether to admit evidence is a matter resting in the trial court’s sound discretion, and evidence that is relevant and material to an issue in the case is not rendered inadmissible because it incidentally places the defendant’s character in issue.” Under the facts of this case, we discern no abuse of discretion in admitting it or failing, absent a request, to give a limiting instruction about the evidence.

(b) Hoke also argues that failing to request a limiting instruction constituted deficient performance, but his trial counsel testified at the motion for new trial hearing that the alleged domestic violence was “a key component to our closing argument,” during which Hoke’s counsel attacked her credibility. Because the admission of the evidence was not an abuse of discretion and trial counsel used it as part of his reasonable trial strategy to attack the witness’s credibility, Hoke’s ineffective assistance claim fails on this ground.

5. Finally, Hoke contends that the trial court erred by admitting an unredacted audio recording and transcript of Hoke’s police interview. He challenges statements from the detective such as “why would this precious little girl tell a lie?” and “I just know that this little child does not lie,” and argues that they impermissibly commented on A. C.’s credibility. For this reason, he also argues that trial counsel’s failure to object constituted ineffective assistance of counsel. Nevertheless,

[cjomments made in such an interview and designed to elicit a response from a suspect do not amount to opinion testimony, even when [evidence] reflecting the comments is admitted at trial. The question, therefore, is not whether [Hoke’s] lawyer should have objected to [the officer] offering opinion testimony, but instead whether [he] should have objected that the testimony was without probative value or was too prejudicial to be admitted.

Decided March 10, 2014

Like any other evidence, testimony reflecting comments made by an officer in the course of an interview ought not be admitted if the probative value of the testimony is substantially outweighed by its tendency to unduly arouse emotions of prejudice, hostility, or sympathy.

Here, Hoke had initiated contact with police and requested to explain his version of the allegations against him. He admitted to certain general circumstances surrounding the abuse, such as locations and times, but he adamantly denied any inappropriate behavior. In this context,

the comments about which [Hoke] complains reflected an aggressive interrogation technique designed to test the truthfulness of [Hoke’s] . . . story. .. ,[] [Further, t]he probative value of this testimony was not substantially outweighed by its prejudicial effect. It hardly would have surprised anyone observing the trial to learn that [the interviewing officer] was not satisfied with [Hoke’s] story... and believed instead that [Hoke] was not telling the whole truth about what had happened to [A. C.], and any rational juror could have surmised as much without being told explicitly. Such comments upon the patently obvious generally pose little, if any, danger of prejudice, and they are not, we think, comparable to the specific and detailed commentary found inadmissible in [Georgia case law]. For these reasons, if objection had been made to the [unredacted interview], the trial court properly would have overruled the objection.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

John W. Donnelly, for appellant.

J. Bradley Smith, District Attorney, Samuel E. Skelton, Assistant District Attorney, for appellee.

       OCGA § 16-6-4 (c).

       OCGA § 16-6-4 (a) (1).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       292 Ga. App. 860 (666 SE2d 412) (2008).

       OCGA § 17-8-25 provides as follows:
      In all applications for continuances upon the ground of the absence of a witness, it shall be shown to the court that the witness is absent; that he has been subpoenaed; that he does not reside njore than 100 miles from the place of trial by the nearest practical route; that his testimony is material; that the witness is not absent by the permission, directly or indirectly, of the applicant; that the applicant expects he will be able to procure the testimony of the witness at the next term of the court; that the application is not made for the purpose of delay but to enable the applicant to procure the testimony of the absent witness; and the application must state the facts expected to be proved by the absent witness.

       (Citations and punctuation omitted; emphasis omitted and supplied.) Mora, 292 Ga. App. at 863 (2), citing Parker v. State, 282 Ga. 897, 898-899 (2) (655 SE2d 582) (2008); Campbell v. State, 181 Ga. App. 790, 791 (354 SE2d 10) (1987).

        In re Adams, 292 Ga. 617, 617 (1) (740 SE2d 134) (2013), citing Hampton v. State, 289 Ga. 621 (4) (713 SE2d 851) (2011); Butts v. State, 273 Ga. 760 (546 SE2d 472) (2001). See also Woodall v. State, 294 Ga. 624, 633 (9) (754 SE2d 335) (2014) (finding waiver of recusal where counsel objected to judge’s participation based on an appearance of impropriety but failed to move to recuse the judge). Hoke’s reliance on Hargis v. State, 319 Ga. App. 432, 437 (2) (a) (735 SE2d 91) (2012), is unavailing in this case where the ex parte communication was for the administrative purpose of scheduling. See Georgia Code of Judicial Conduct, Canon3 (B) (7) (a).

       The results of the physical examination were normal; McPherson also reviewed a transcript of a forensic interview with A. C.

       (Punctuation omitted.) Thomas v. State, 318 Ga. App. 849, 855 (4) (b) (734 SE2d 823) (2012).

       (Punctuation omitted.) Id.

       (Punctuation omitted.) Id.

       (Punctuation omitted; emphasis supplied.) Id.

        See Riddick v. State, 320 Ga. App. 500, 504 (4) (b) (740 SE2d 244) (2013) (futile objection cannot support a claim for ineffective assistance of counsel).

       (Punctuation omitted.) Hernandez v. State, 304 Ga. App. 435, 437 (3) (696 SE2d 155) (2010).

       See id. See also Jones v. State, 263 Ga. 835, 839 (3) (439 SE2d 645) (1994) (no limiting instruction required); Riddick, 320 Ga. App. at 504(4) (b); Brooks v. State, 199 Ga. App. 525, 526 (1) (405 SE2d 343) (1991) (Because “the statements were admissible for the purpose of explaining the circumstances surrounding the crime, no limiting instructions were required in the absence of a request.”). See also State v. Byrd, 255 Ga. 665, 668 (341 SE2d 455) (1986) (requiring request by defendant for a limiting instruction about impeachment evidence that incidentally injects character).

       See Ford v. State, 290 Ga. 45, 49 (5) (d) (717 SE2d 464) (2011) (“An attorney’s decision not to seek a limiting instruction to avoid drawing [further] attention to the subject of the instruction is a matter of trial strategy that falls within the range of reasonable professional conduct when, as here, it is a reasonable decision.”). Here, Hoke’s counsel requested a bench conference to voice an objection to the testimony.

       (Citations and punctuation omitted.) Butler v. State, 292 Ga. 400, 406 (3) (a) (738 SE2d 74) (2013).

       (Punctuation omitted.) Id.

       (Citations and punctuation omitted.) Id. at 406-407 (3) (a).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A13A2079.
    JORDAN v. THE STATE.
    (755 SE2d 882)
   DOYLE, Presiding Judge.

Following a jury trial, Jessie Lee Jordan was found guilty of possession of cocaine, driving with a suspended license, and driving without insurance. He now appeals the denial of his motion for new trial (1) challenging the sufficiency of the evidence and (2) arguing that the trial court abused its discretion by failing to grant a mistrial based on certain evidence relating to drug use. Finding no error, we affirm.

Construed in favor of the verdict, the record shows that at 1:30 a.m., on November 19, 2006, an officer observed Jordan in a vehicle parked on the wrong side of the road, facing oncoming traffic. The officer ran a computer check on the license tag and determined that the vehicle lacked valid insurance and registration. By the time the officer turned around to stop the vehicle, it had moved to the driveway of a hair salon. After a short time, the car moved to another location and drove in a manner to avoid police, and the officer ultimately executed a traffic stop of the vehicle.

During the stop, Jordan explained that he did not have a license, so the officer asked him to get out of the car. At that time, the officer observed in plain view a bottle with a fruit punch label in the driver’s side floorboard, but the contents did not look like fruit punch. The officer requested and received consent to retrieve and examine the bottle, which looked and smelled like whiskey. A computer check of Jordan’s name and date of birth reported that his license had been suspended.

A second officer, Deputy Jason Howell, arrived and observed Jordan chewing on a foreign substance that looked to the officer like crack cocaine. Howell asked him to spit it out, Jordan refused, and a physical struggle ensued. Jordan ultimately spit out some pieces of the suspected crack cocaine, and after Jordan was restrained in handcuffs, the officers were able to locate and retrieve some of the pieces Jordan had spit out. The pieces field-tested positive for cocaine, which result was later confirmed in lab testing.

An officer then read Jordan the implied consent warning, and Jordan refused a blood test. The officers then decided to take Jordan to a hospital in case he had ingested any of the cocaine he had in his mouth. Medical staff treated Jordan for a cocaine overdose.

Based on these events, Jordan was charged with possession of cocaine, obstruction of an officer, driving under the influence of alcohol, driving with a suspended license, and driving without insurance. The jury found Jordan not guilty of obstruction, and after the trial, the court found the evidence insufficient as to the DUI count. Jordan now appeals his conviction on the remaining counts.

1. Jordan argues that the evidence was insufficient to support a guilty verdict as to the count for possession of cocaine. Specifically, Jordan asserts that the evidence was fatally undermined by certain vagaries in the officers’ accounts of Jordan’s behavior and where the spit-out cocaine was found. Nevertheless, when an appellate court reviews the sufficiency of the evidence,

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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

Here, there was testimony from both of the arresting officers that they personally witnessed Jordan with what looked like crack cocaine rocks in his mouth. There was further testimony from the officers that they saw Jordan spit out some pieces of the suspected cocaine, which the officers retrieved and which later tested positive for cocaine. This evidence was sufficient to show that Jordan possessed the cocaine; any inconsistencies were for the jury to resolve.

2. Jordan also contends that the trial court erred by denying his motion for a mistrial following testimony elicited by the State that he argues violated the trial court’s pre-trial ruling excluding the results of a blood test based on hearsay and confrontation grounds. We discern no error.

During trial, outside the presence of the jury, the State proffered testimony by a nurse who treated Jordan to explain the treatment and other events at the hospital. Jordan’s counsel objected on hearsay grounds to the admission of testimony or documents containing the results of the hospital’s diagnostic drug screening because the nurse herself did not perform the blood tests. The trial court excluded the documented test results and ruled that the State could not elicit testimony stating the results of the drug screen: “I think all you can say is ‘[D]id you do some testing that caused you to take some action,’ and you, now ask those kinds of things. I don’t think [the witness] can say she got a positive drug screen. . . . [S]he can’t say what [the test result] is [be]cause she did not perform the test.”

When the witness was called to testify, the following colloquy ensued:

PROSECUTOR: What was [Jordan’s] physical condition? What did you observe about his appearance?
WITNESS: . . .[H]e was in distress . . . his vital signs were crazy. His heart rate was sky high. His blood pressure was sky high. He was in obvious distress ... he was in pretty bad distress at that time.
PROSECUTOR: Based on the lab results that were done[,] did you perform any actions with regard to the defendant? WITNESS: Yes, ma’am. He received activated charcoal by a tube in his nose, which activated charcoal is given for drug overdoses to absorb the drugs that can still be in your stomach, in your system —
DEFENSE COUNSEL: Judge, I’m going to have to object____

Decided March 10, 2014.

Tobe C. Karrh, for appellant.

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

On appeal, Jordan contends that the State circumvented the trial court’s ruling by eliciting evidence concerning the results of the drug screening. But this ignores the legal basis for the trial court’s ruling. The results of the drug screening were deemed inadmissible on hearsay and confrontation grounds because the witness had not performed the drug screening analysis. In contrast, the nurse’s testimony about her personal observations and the actions she took do not pose the same problem. Jordan was able to cross-examine the nurse about these aspects of her testimony, and her testimony did not admit any out-of-court statement consisting of hearsay.

Further, to the extent the evidence implied that Jordan had used drugs and reflected poorly on his character, the testimony was relevant to Jordan’s possible ingestion of the drugs he was accused of possessing. “The fact that [relevant] testimony incidentally placed appellant’s character in issue by showing that he used illegal drugs does not otherwise [require] the testimony to be excluded.” Accordingly, the trial court did not abuse its discretion by denying Jordan’s motion for a mistrial.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-13-30 (a).

       OCGA § 40-5-121 (a).

       OCGA § 40-6-10(b). Jordan was also foundguilty of driving under the influence of alcohol to the extent it was less safe to drive, but after trial, the trial court found the conviction on that count unsupported by the evidence.

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       See OCGA § 24-4-8 (2008) (“The testimony of a single witness is generally sufficient to establish a fact.”). This Code provision has been retained but renumbered as OCGA § 24-14-8 in Georgia’s new Evidence Code, applicable to trials commencing on or after January 1, 2013. Ga. L. 2011, p. 99, §§ 2,101. Jordan’s trial occurred in 2008. See also Gantt v. State, 229 Ga.App. 207, 209 (2) (493 SE2d 608) (1997).

       See Jackson, 443 U. S. at 319 (III) (B).

       See, e.g., Bullcoming v. New Mexico,_U. S._(II) (B) (131 SCt 2705, 180 LE2d 610) (2011) (rejecting the practice of “surrogate testimony and holding that the admission of test results by a witness who did not perform the analysis would be a violation of the Confrontation Clause).

       See OCGA § 24-3-1 (2008) (“Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons”). This Code section has been repealed and replaced by OCGA § 24-8-801.

        Dyers v. State, 277 Ga. 859, 860-861 (2) (596 SE2d 595) (2004).


author: Branch, Judge.

text:
    A13A2246.
    WHATLEY v. THE STATE.
    (755 SE2d 885)
   Branch, Judge.

Horance W. Whatley appeals from orders of the Walton County Superior Court denying his plea in bar on double jeopardy grounds and his plea in bar based on an alleged violation of his constitutional right to a speedy trial. Whatley contends that the trial court erred in denying his double jeopardy claim because the evidence showed that the prosecutor intentionally provoked a mistrial for the purpose of having the opportunity to retry Whatley under more favorable circumstances. He contends that the trial court erred in denying his speedy trial claim because when ruling on this claim, the trial court considered only the amount of time that had elapsed since Whatley’s first trial ended in a mistrial, rather than the entire amount of time that had elapsed since Whatley’s arrest on the charges at issue. We find no error and affirm.

The record shows that Whatley was arrested on May 20,2008, on charges of sexual battery, enticing a child for indecent purposes, child molestation, cruelty to a child, and sexual assault. The victim of Whatley’s alleged acts was his then seven-year-old daughter, B. W. Whatley was released on bond within two days of his arrest, and has remained free on bond since that time. On December 18, 2009, Whatley was indicted on one count of child molestation, one count of sexual battery, and one count on enticing a child for indecent purposes. He thereafter appeared at calendar calls and announced ready for trial on November 15,2010, February 7,2011, and August 8,2011.

In February 2011, Walton County hired a new prosecutor, who had considerable experience prosecuting crimes against children, and this prosecutor was assigned Whatley’s case. Believing that there were some problems with the wording of Whatley’s original indictment, the prosecutor re-indicted the case. The new indictment, which was filed on October 28, 2011, charged Whatley with three counts of child molestation and one count of enticing a child for indecent purposes. Following his second indictment, Whatley appeared at calendar calls and announced ready for trial on November 7, 2011, March 26, 2012, and August 13, 2012. Whatley’s case was called for trial on October 15, 2012.

At the outset of his case, Whatley had opted for reciprocal discovery under OCGA § 17-16-1 et seq., and was therefore given access to the prosecution’s evidentiary file. When reviewing that file, defense counsel noted that law enforcement had advised B. W.’s mother (who was Whatley’s ex-wife) to take the child to Children’s Healthcare of Atlanta (“CHOA”) for a medical exam. Additionally, the file showed that one detective had taken steps to assist the mother in scheduling such an exam. No copy of any medical report appeared in the prosecution’s file or was otherwise provided to defense counsel pursuant to the State’s continuing discovery obligations. Accordingly, defense counsel assumed that the mother had never taken B. W. for the recommended medical exam.

During opening argument, defense counsel asserted that the case against Whatley was the result of a vendetta by Whatley’s ex-wife, who had raised the allegations at issue after Whatley filed a motion to reduce his child support payments. As part of this argument, defense counsel emphasized that despite being advised by law enforcement to take her daughter for a medical exam, the mother had never done so.

The mother was the second witness called at trial. During direct examination, the mother testified that after becoming concerned about B. W.’s behavior, she took the child to a therapist. B. W. made her outcry statement to the therapist, who then reported the child’s allegations to the appropriate authorities. Immediately after this testimony, the following exchange took place between the mother and the prosecutor:

PROSECUTOR: What was the next contact you had after meeting with [the therapist] [and learning about B. W.’s allegations of sexual abuse by her father]? . . .
MOTHER: Well, we, I kept her [B. W] going to [the therapist] ... and I had to take her [B. W] to Children’s Hospital in Atlanta.
PROSECUTOR: Okay. And was that for an interview, for a medical exam, or what was that for?
MOTHER: Medical exam.

At that point, defense counsel requested a bench conference, at which he objected to the mother’s testimony regarding taking B. W. for a medical exam, noting that the defense had never been provided with a copy of a report of any such exam. In response, the prosecutor stated that he had only recently contacted CHOA to confirm that such an exam had been done and to request a copy of any report that existed, and that a copy of a report was being faxed to the State, but they did not yet have it. The prosecutor further noted that he knew he could not use the exam findings at trial, as the report had not been in the State’s possession and therefore had not been produced to the defense prior to trial. He believed, however, that the mother could testify as to the fact that an exam was performed.

The defense moved for a mistrial, based on the fact that the State had failed to inform Whatley’s attorney that B. W. had undergone a medical exam and, as a result, defense counsel’s credibility had been compromised by his opening statement. The trial court granted the motion but specifically refrained from making a finding as to whether the prosecutor had acted deliberately, for the purpose of goading a mistrial.

A copy of the report of B. W.’s medical exam was subsequently filed with the trial court. The report contains nothing that obviously inculpates or exculpates Whatley. All findings are “normal,” and the exam showed no signs of sexual penetration or other activity. The examiner noted, however, that because B. W. reported it had been more than six weeks since she had seen her father, any possible signs of sexual abuse would have likely healed prior to the exam.

Following the mistrial, Whatley filed two plea in bar motions: one based on the State’s alleged misconduct in causing the mistrial and one based on an alleged violation of Whatley’s constitutional right to a speedy trial. The trial court held a hearing on these motions on February 21, 2013, at which both the prosecutor and defense counsel testified. The prosecutor testified that after striking a jury on the first day of trial, he returned to his office after 3:00 p.m. and reviewed the file. During that review, he noticed for the first time that the police had advised the mother to take B. W. for a medical exam. The prosecutor then directed his investigator to contact CHOA to see if it had a record of any such exam. That same day, the investigator phoned CHOA and sent a follow-up e-mail at 4:50 p.m., asking whether an exam had been performed. In her e-mail, the investigator also stated that if such an exam had been performed, the State was requesting a copy of the report.

The following day, the prosecutor reported to court at approximately 8:15 a.m. for a motions hearing in the case. Trial began at approximately 9:00 a.m., with the giving of opening statements. At 10:01 a.m., a representative of CHOAresponded to the investigator’s e-mail, stating that B. W. “was seen on May 8, 2008[] for a medical exam at the Child Protection Center,” and asking for a fax number to which CHOA could send a copy of the report of that exam. The prosecutor was copied on that e-mail, which came to his cell phone while he was conducting his direct examination of B. W., the first witness at trial. At some point after coming to court that morning but before putting the mother on the stand as his second witness, the prosecutor confirmed with the mother that she had taken B. W.- for the medical exam.

When asked why he had not revealed the fact of the medical exam to defense counsel before trial began that day, the prosecutor stated that prior to reviewing the case file following jury selection, he had never even asked whether an exam had been performed because, based on his discussions with the mother, he believed that no exam had been done. He then explained:

And it made sense to me that [the mother] wouldn’t have [taken B. W. for a physical exam] because of the disclosure. The disclosure was kissing on the mouth,... the defendant putting his penis between [B. W.’s] legs, and... touching her buttocks with his penis, ... on the outside of [her] clothes. There definitely wasn’t any indication of penetration ... so it didn’t surprise me that there wouldn’t be [a physical exam] in that case ... because I wouldn’t have expected there to be any findings one way or the other.

The prosecutor further explained that prior to B. W.’s testimony, he did not even have written confirmation that a medical exam had occurred or that a written report of that exam existed. Rather, all he had was an oral statement from the mother that the exam had occurred, and he was not required to disclose oral witness statements. Specifically, the prosecutor stated:

I didn’t have any intent about... hiding or not disclosing. It [the fact of the exam] was information that [the mother] told me, and so I asked her about it on the stand. . . . [T] hat’s honestly how it was. It wasn’t some tactical means to try to get a[n] improper angle on things. It was information she had provided to me in an oral statement and I didn’t have anything to turn over at that time, so I went forward with what I had.

During his testimony, defense counsel admitted that he had never asked the mother if she had taken B. W. for a medical exam, even though he had spoken with her in person about the case three days before trial began. He also acknowledged that he had never asked the prosecutor’s office whether a medical exam had been performed on B. W, nor had he made an inquiry to CHOA as to whether they had a record of such an exam. Rather, because the prosecutor’s office never informed him that B. W. had undergone the recommended medical exam or provided him with a copy of a report of such an exam, he simply assumed no exam had been performed.

As defense counsel explained:

I guess my assumption was that, if— it was very clear in the discovery materials that [the mother] had been asked to get an exam [performed on B. W.]. Subsequent — at initial discovery and then follow-up conversations with the assigned prosecutor didn’t indicate one had been done. And I guess it never occurred to me that one would have actually been done and nobody would have ever followed up to find out. So . . . [m]y assumption was that the District Attorney’s office ... I just assumed that, if one had been done, they would be aware of it and they would obviously provide me that information.

Based on the testimony and evidence presented at the hearing on Whatley’s motions, including the results of B. W.’s medical exam, the trial court denied Whatley’s plea in bar on his claim of double jeopardy, finding that Whatley had failed to show the State had engaged in deliberate misconduct for the purpose of goading a mistrial. Additionally, the court denied Whatley’s plea in bar based on the alleged violation of his constitutional right to a speedy trial. In denying this motion, the court held that the time for calculating the existence of a speedy trial violation began following the declaration of the mistrial, and that there had been no delay by the State in scheduling Whatley’s second trial. Whatley now appeals from these orders.

1. When a defendant successfully moves for a mistrial based on alleged prosecutorial misconduct, the general rule is that the Double Jeopardy Clause does not bar a retrial. State v. Traylor, 281 Ga. 730, 731 (642 SE2d 700) (2007). Retrial will be prohibited, however, where the defendant can show that the prosecutor acted deliberately, in an attempt to goad the defendant into moving for a mistrial. Id. To prevail on such a claim, the defendant must prove “that the State was purposefully attempting through its prosecutorial misconduct to secure an opportunity to retry the case, to avoid reversal of the conviction because of prosecutorial or judicial error, or to otherwise obtain a more favorable chance for a guilty verdict on retrial.” (Punctuation omitted.) Id. at 731-732, quoting Davis v. State, 278 Ga. 305, 306 (1) (602 SE2d 563) (2004).

What is critical is the objective of the prosecutor’s improper conduct. . . . Actions of the prosecutor constituting even intentional prosecutorial misconduct do not raise the bar of double jeopardy, . . . unless the prosecutor’s actions were intended to subvert the protections afforded by the Double Jeopardy Clause.

(Citations and punctuation omitted.) Dinning v. State, 267 Ga. 879, 881 (485 SE2d 464) (1997).

Whether the prosecutor intended to goad Whatley into moving for a mistrial represents a question of fact, to be determined by the trial court. Roscoe v. State, 286 Ga. 325, 327 (687 SE2d 455) (2009). And the trial court’s finding on this issue will be upheld on appeal if there is any evidence to support it, including “ ‘circumstantial evidence and the reasonable inferences which flow from’ ” that evidence. Id., quoting State v. Thomas, 275 Ga. 167, 168 (562 SE2d 501) (2002).

The trial court found that Whatley’s double jeopardy claim fails for two reasons. First, the court found that the prosecutor had not, in fact, engaged in any misconduct. The court further found that, even if the prosecutor’s conduct could be considered improper, there was no evidence that he engaged in this conduct for the purpose of provoking a mistrial. Both of these findings are supported by the record.

With respect to the prosecutor’s conduct, the record shows that he did not deliberately withhold any information or reports to which the defense was entitled. Instead, the prosecutor’s testimony showed that he was unaware that the mother had even been instructed to take B. W. for a medical exam until after trial had begun and a jury had been impaneled. Additionally, both the prosecutor’s testimony and the documentary evidence showed that the State received no written confirmation of the exam until after opening arguments had occurred and testimony had begun. Moreover, although the prosecutor received oral confirmation from the mother, before putting her on the stand, that she had taken B. W. for the recommended medical exam, he was under no obligation to provide this information to the defense. The statutory obligation of OCGA § 17-16-7 “is not triggered when a witness merely makes an oral statement. There can be no ‘possession, custody, or control’ of a witness’ statement which has neither been recorded nor committed to writing.” (Citation and punctuation omitted.) Forehand v. State, 267 Ga. 254, 255 (3) (477 SE2d 560) (1996). See also Simmons v. State, 321 Ga. App. 743, 746 (2) (743 SE2d 434) (2013).

Furthermore, it appears that defense counsel was at least as equally responsible as the prosecutor for the failure to discover the existence of B. W.’s medical exam until the morning of trial. Defense counsel admitted that he had noticed, as early as 2008, the note in the prosecution’s file directing the mother to take B. W. for a medical exam. Despite this knowledge, however, defense counsel failed to ask the prosecutor, the mother, or CHOA if such an exam had been performed. Rather, he simply assumed that if an exam had been performed, a copy of it would appear in the prosecution’s file and/or would be produced during discovery. Under these circumstances, we find no error in the trial court’s conclusion that the prosecutor did not engage in any misconduct.

Nor do we find any error in the trial court’s ruling that, even assuming misconduct by the prosecutor, there was no evidence the prosecutor acted with the intent of provoking a mistrial. The record reflects that, although it was early in the trial, nothing had happened that would have caused the State to desire a mistrial. The only witness to testify — B. W. — had given unequivocal testimony that was damaging to her father. And the State had won a significant evidentiary ruling that allowed it to introduce Whatley’s use of child pornography. Moreover, the prosecutor had no reason to prompt a mistrial so as to be able to introduce the medical report at a later trial, as that report did nothing to support his case. Additionally, despite Whatley’s assertions to the contrary, no evidence supports the inference that the prosecutor wanted a second trial because he had learned Whatley’s trial strategy from defense counsel’s opening statement. Rather, the logical inference to be drawn from the evidence is that the prosecutor would benefit more from continuing the original trial because, given defense counsel’s representation in his opening statement that no medical exam had occurred, the prosecutor had the opportunity to cause the jury to question defense counsel’s credibility. In short, the evidence supports

the trial court’s conclusions that the State would have nothing to gain from delay and that the prosecutor was aggressively seeking a conviction, not a mistrial. Under these circumstances, it cannot be said that the trial court erred in its . . . denial of [Whatley’s] plea in bar on the grounds of double jeopardy.

(Citation omitted.) Roscoe, 286 Ga. at 327. See also State v. Maddox, 185 Ga. App. 674, 676 (365 SE2d 516) (1988) (double jeopardy did not bar retrial of defendant where record supported the conclusion that the State “was attempting to place the prohibited evidence before the jury to enhance the likelihood of [defendant’s] conviction,” rather than to goad a mistrial); Traylor, 281 Ga. at 732-733.

2. Whatley also contends that the trial court erred in denying his plea in bar based on an alleged violation of his constitutional right to a speedy trial.

The template for deciding all constitutional speedy trial claims under the Sixth Amendment and the Georgia Constitution is laid out in the 1972 case of Barker v. Wingo[, 407 U. S. 514, 530 (IV) (92 SCt 2182, 33 LE2d 101) (1972)] and the 1992 decision in Doggett v. United States[, 505 U. S. 647, 651 (II) (112 SCt 2686, 120 LE2d 520) (1992)]. The analysis has two stages. First, the court must determine whether the interval from the accused’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered “presumptively prejudicial.” If not, the speedy trial claim fails at the threshold. If, however, the delay has passed the point of presumptive prejudice, the court must proceed to the second step of the Barker-Doggett analysis, which requires the application of a delicate, context-sensitive, four-factor balancing test to determine whether the accused has been deprived of the right to a speedy trial.

(Footnotes omitted.) Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008). As a general rule, “[t]he constitutional right to a speedy trial attaches either at the time of the defendant’s arrest or at the time of his indictment, whichever occurs earlier,” and “[a] delay of more than one year between the attachment of the right and the trial raises a threshold presumption of prejudice to the defendant.” (Citations and footnotes omitted.) Hayes v. State, 298 Ga. App. 338, 339-340 (1) (680 SE2d 182) (2009).

Here, relying on the Supreme Court of Georgia’s decision in Brewington v. State, 288 Ga. 520 (705 SE2d 660) (2011), the trial court held that “when a defendant has been actually tried and the trial ends with the declaration of a mistrial, ‘the relevant time frame for purposes of [a] motion to dismiss on constitutional speedy trial grounds is from the date of the mistrial. . . through the date the motion was denied.’ ” (quoting Brewington at 521 (2)). The court then found that because only five months had elapsed between the mistrial and the court’s ruling on Whatley’s motion, there was no presumption of prejudice, Whatley’s motion failed at the threshold, and the court need not engage in the second part of the speedy trial analysis.

On appeal, Whatley contends that the trial court erred in relying on Brewington and that the correct time period for assessing his speedy trial claim was the 59-month period between his arrest (May 20,2008) and the trial court’s ruling on his plea inbar (April29,2013). Thus, he asserts that the trial court erred in refusing to engage in the second part of the speedy trial analysis and, when his claim is analyzed correctly, he should prevail. We find no error by the trial court.

As an initial matter, we do not believe that the rule set forth in Brewington applies to cases where a mistrial was caused by prosecutorial misconduct. The mistrial at issue in Brewington resulted from a hung jury, rather than from any misconduct by the State. Thus, we do not read Brewington as standing for the proposition that, for the purpose of analyzing speedy trial claims the clock is automatically reset whenever a mistrial occurs, no matter the reason for the mistrial. Rather, we view that case as holding that the time for analyzing a speedy trial claim will be calculated from the date of a mistrial only where the mistrial does not result from any misconduct by the State. Brewington, 288 Ga. at 521 (2). See also Jakupovic v. State, 287 Ga. 205, 206 (1) (a) (695 SE2d 247) (2010) (the delay in bringing the defendant to trial was calculated beginning with the date of the order granting defendant’s motion for a new trial, where the grant of that motion was based on ineffective assistance of trial counsel, rather than on any error or misconduct by the State).

As discussed in Division 1, however, the record in this case shows that the prosecutor did not engage in any misconduct, deliberate or otherwise. Thus, the mistrial was necessitated not by the actions of the State, but instead was granted by the trial court out of an abundance of caution, after defense counsel objected to the giving of a curative instruction and insisted on a mistrial. As the trial court stated in its order, granting the mistrial actually benefitted Whatley, as it gave him the “opportunity to reassess his strategy at trial which had otherwise been compromised by his own [erroneous] assessment” of what evidence was available. Accordingly, because the mistrial was not caused by prosecutorial misconduct, we find no error in the trial court’s decision to apply Brewington and calculate the relevant time period for Whatley’s speedy trial claim beginning with the date on which Whatley filed his plea in bar. And because the delay between the filing of that motion and the trial court’s ruling on the same was less than a year, the trial court correctly found that Whatley’s speedy trial claim failed at the threshold. Ruffin, 285 Ga. at 55 (2).

Decided March 10, 2014.

Matthew J. Karzen, for appellant.

Layla H. Zon, District Attorney, Ronald V. McNease, Jr., Assistant District Attorney, for appellee.

For the reasons set forth above, we affirm both the trial court’s order denying Whatley’s plea in bar on double jeopardy grounds and the order denying his plea in bar based on an alleged violation of his constitutional right to a speedy trial.

Judgment affirmed.

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

       The faxed copy of the report of B. W.’s medical exam was delivered to the prosecutor during the bench conference.

       When received, the report showed that the exam had actually been performed on May 22, 2008.

       This statute provides, in relevant part:
      . . . [T]he prosecution or the defendant shall produce for the opposing party any statement of any witness that is in the possession, custody, or control of the [SJtate or prosecution or in the possession, custody, or control of the defendant or the defendant’s counsel that relates to the subject matter concerning the testimony of the witness that the party in possession, custody, or control of the statement intends to call as a witness at trial. . . .

       We note that prior to filing his plea in bar, Whatley had never made a demand for a speedy trial and he had not raised any claim that his rights to a speedy trial had been or were being violated.

       Such an interpretation of Brewington would conflict with the principle that, in analyzing a speedy trial claim, any evidence which shows “[a] deliberate attempt [by the prosecution] to delay the trial in order to hamper the defense,” must be considered and “weighted heavily against the government.” (Footnote omitted.) Barker, 407 U. S. at 531 (IV). See also Ruffin, 284 Ga. at 59 (2) (b) (ii) (“[deliberate delay to gain an improper advantage over the accused strikes at the very heart of the speedy trial guarantee”) (citation and footnote omitted); Brannen v. State, 274 Ga. 454, 455 (553 SE2d 813) (2001).


author: Ray, Judge.

text:
    A13A2349.
    MARTIN et al. v. HANSEN.
    (755 SE2d 892)
   Ray, Judge.

Pamela Hansen sued her landlords, Frank and Leslie Martin, for injuries she received when she tripped and fell on the top stair of a staircase located in the home that she rented from them. Hansen alleged that her fall resulted from the fact that the rise on the top stair did not conform to the code requirements. We granted the Martins’ application for an interlocutory appeal from the trial court’s denial of their motion for summary judgment. For the following reasons, we find that the Martins were entitled to summary judgment and reverse.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case. Our review of an appeal from summary judgment is de novo.

(Citations and punctuation omitted; emphasis in original.) Yon v. Shimeall, 257 Ga. App. 845, 846 (572 SE2d 694) (2002).

So viewed, the record shows that the Martins own a single-family residence in Savannah, Georgia. They purchased the property after construction was completed and lived in it for approximately five years prior to leasing it to Hansen on May 1, 2008. After living in the home for approximately five months, Hansen was ascending the stairs to the second floor in order to retrieve a blanket when she tripped on the top stair and fell down the stairs. Hansen deposed that her fall was caused by the fact that the rise of the top stair was higher than the others, causing her to lose her balance. Hansen further explained that, during the five months that she lived in the home, she rarely went to the second floor, where the guest bedroom and storage were located.

Thomas Lueer, who also lived in the home with Hansen, deposed that he worked as a draftsman, doing residential architectural work. His work included designing staircases and determining whether staircases are ADA-compliant. After Hansen’s fall, Lueer measured the staircase’s risers and determined that they did not conform to code. However, he testified that he had never noticed anything unusual about the height of the rise on the top stair or the other stairs prior to her fall.

1. The Martins first contend that the trial court erred in holding that there was a genuine dispute as to whether the Martins had knowledge of the defective stair. Specifically, they argue that the trial court erred in finding that their affidavit testimony was insufficient to prove that they did not have actual knowledge that the top stair’s rise was too high or out of code. We agree.

In her complaint, Hansen alleges that the Martins were liable for her injuries because they failed to repair the defective top stair and failed to warn her of the defective stair. As an out-of-possession landlord, the Martins’ liability was limited by OCGA § 44-7-14. Pursuant to that provision, a landlord who has fully parted with his or her property “is not liable to third persons for damages in tort unless it is shown that the damages resulted either from failure to repair the premises or faulty construction of the premises.” (Punctuation omitted.) Gainey v. Smacky’s Investments, 287 Ga. App. 529, 530 (2) (652 SE2d 167) (2007). “[T]he responsibility of a landlord for failure to repair a latent defect is not absolute but is predicated only on the landlord’s knowledge of the defect and the consequent necessity for repairs.” (Citation omitted.) Steele v. Chappell, 222 Ga. App. 451, 452 (1) (474 SE2d 309) (1996). See also Lariscy v. Eschette, 306 Ga. App. 205, 206 (702 SE2d 49) (2010) (“The true basis for a landlord’s liability to a tenant for injuries resulting from a defective or hazardous condition existing on the premises is the landlord’s superior knowledge of the condition and of the danger resulting from it”) (citations and punctuation omitted).

In support of their motion for summary judgment, the Martins filed affidavits stating that prior to Hansen’s incident they were “unaware that the rise of the top step... was any greater than the rise of any other step in the staircase or that it violated any code,” that the staircase had not been altered since they purchased the property in 2002, and that they did not build or supervise the building of the staircase. In denying their motion for summary judgment, the trial court found that the defect in the stair’s top riser was a latent defect and that the Martins provided evidence in the form of affidavit testimony that they did not have actual knowledge that the top stair was out of code. However, the trial court denied the motion for summary judgment on the basis that the Martins’ affidavit did not go far enough to prove that they lacked knowledge of the stair’s defective condition because they failed to provide evidence that they were unaware that the other remaining stairs on the home’s staircase were out of code (thus imposing a duty to inspect the remainder of the staircase), that they were unaware of an issue with the stairs based upon their experience living in the house or through prior home inspections or for any other reason.

As the movant defendants, the Martins

could prevail at summary judgment under OCGA § 9-11-56 only by affirmatively disproving [Hansen’s] claim [s] with [their] own evidence establishing the absence of any genuine issue of material fact or by showing from the affidavits, depositions and other documents in the record that there was an absence of evidence to support at least one essential element of [Hansen’s] claim [s].

(Citation omitted.) Solomon v. Barnett, 281 Ga. 130, 131 (636 SE2d 541) (2006). In her complaint, Hansen alleges only that the Martins “were negligent by failing to repair the defective top step of the flight of stairs” and in failing to warn her of the stair’s defective condition. The Martins’ affidavit evidence that they were unaware of any abnormality regarding the height of the top stair or that it violated any building code pierced the only factual allegation of negligence or causation asserted against them by disproving the knowledge element of Hansen’s claims. There was no allegation or evidence to suggest that anything relating to any of the other stairs on the staircase had anything to do with Hansen’s injury. Accordingly, we find that the trial court erred in requiring the Martins to affirmatively disprove unasserted theories of liability.

Decided March 10, 2014.

Forbes, Foster & Pool, Morton G. Forbes, Johnny A. Foster, for appellants.

Balbo & Gregg, Chester J. Gregg, for appellee.

Since the affidavit relied upon by the Martins in support of their motion for summary judgment pierced Hansen’s pleadings, she was required to set forth specific facts showing there was a genuine issue for trial regarding the Martins’ knowledge of the defective stair. Specifically, Hansen was required to point “to admissible evidence showing a genuine issue of [material] fact as summary judgment cannot be avoided based on mere speculation or conjecture.” (Citations omitted.) Stevenson v. City of Doraville, 294 Ga. 220, 224 (2) (751 SE2d 845) (2013). Hansen failed to provide any such admissible evidence regarding the Martins’ knowledge of the defective stair. Although there was evidence that the Martins lived in the home for five years, there was no evidence or allegation that either of them was aware of any issue with the stairs based on their experience living in the house and traversing the stairs or through prior home inspections or for any other reasons. Hansen did provide evidence (not considered by the court below) in the form of her own testimony that the Martins had told her that their son had once fallen down the stairs. However, there was no allegation or evidence to suggest that his fall had anything to do with any abnormality or code violation related to the top step. See Butler v. Huckabee, 209 Ga.App. 761, 762-763 (1), (2), (3) (434 SE2d 576) (1993) (summary judgment was appropriate in negligence case where “[t]he only admissible evidence of the speed of [Huckabee’s] truck was Huckabee’s statement” that he was driving below the speed limit, and plaintiff’s testimony that the defendant “must have been going awful fast for me not to see him coming” was inadmissible conjecture) (punctuation omitted).

2. Because of our holding in Division 1, we need not address the Martins’ second enumeration of error.

Judgment reversed.

Barnes, P. J., and Miller, J., concur.

       Hansen does not allege that the Martins are liable under a theory of faulty construction.


text:
    A13A1949.
    CITY OF ATLANTA et al. v. SHAVERS.
    (756 SE2d 204)
   DOYLE, Presiding Judge.

This appeal arises from a suit filed by Harry Shavers stating claims of false imprisonment and malicious prosecution against Atlanta Police Department Officer Governor Henderson and Razia Group, Inc. The trial court denied Officer Henderson’s motion for summary judgment filed on the basis that he was immune from suit, and this appeal followed. For the reasons that follow, we affirm.

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). If a movant who does not bear the burden of proof at trial notes the absence of evidence to support an essential element of the respondent’s case, the respondent must then identify evidence in the record giving rise to a triable issue. We review a trial court’s grant of summary judgment de novo, construing the evidence and reasonable inferences in favor of the nonmoving party.

Viewed in this light, the evidence shows that on July 1, 2010, Shavers drove his girlfriend’s mother and aunt to a doctor’s appointment and thereafter stopped at a Texaco Food Mart operated by Razia Group to purchase gasoline and lottery tickets and put air in his tires. Shavers and one of the women entered the store, while the other woman remained in the vehicle.

While Shavers was filling out lottery tickets within the store, he noticed two folded papers he believed to be blank while looking for a scrap on which to scribe his lottery numbers for the clerk; upon closer inspection, the items appeared to him to be money orders that had been left by another customer. Shavers picked them up and asked his companion if they belonged to her, and then he asked another customer if he had lost anything. A store employee, Kamrul Islam, overheard Shavers and asked what he had, in a demanding way, called him what Shavers believed to be a pejorative name. In response, Shavers told Islam about the discovery, and Islam demanded Shavers give him the money orders, which Shavers did not immediately do as a result of Islam’s manner. Shavers instead told Islam that he would give him the money orders if Islam took his name and contact information in the event the owner was discovered and wished to reward Shavers. Islam refused to do so and instead came from behind the counter, threatening Shavers; Islam was not threatened by Shavers and did not feel intimidated in any way.

Thereafter, Islam then called 911, and while Shavers stood there, Islam told the operator that Shavers found two money orders and refused to give them to him. Shavers attempted to yell his version of events to the operator, but concluding that Islam was not going to back down from his demands, he placed the money orders on the counter and left the store to put air in his tires. Islam saw Shavers place the money orders down, which he told the 911 operator as well as Officer Henderson when he arrived on the scene. Instead of telling the operator that Shavers was in the parking lot tending to his vehicle, Islam stated that Shavers ran from the store; the operator radioed a description of the vehicle with a tag number and told Henderson that Shavers took $700 from the store.

As he was driving home, Shavers was stopped by multiple police cars, and he immediately pulled to the side of the road and did not resist. Officers, including Officer Henderson, approached Shavers brandishing their service weapons, and Shavers explained that he had found the money orders on the counter but left them in the store. Shavers was detained there while Officer Henderson went to the Texaco to investigate, where Islam told Henderson that Shavers had left the money orders, and where Henderson viewed the videotape from the security camera, which showed that Shavers had not taken the items. The remaining officers on the scene told Shavers that he would be allowed to leave if he had not taken the money orders, but despite learning that Shavers had not taken the items, Henderson returned to the vehicle and arrested him. Officer Henderson then took Shavers to a police station, where he was held for several hours, and Officer Henderson taunted Shavers, telling him that he was going “to make [the charges] stick” no matter what. Despite evidence to the contrary, Officer Henderson charged Shavers with felony theft by taking and transported him to jail; ultimately the charges were dismissed.

1. The City of Atlanta argues that the trial court erred by denying summary judgment to it. Shavers, however, concedes that the City is not a party to the lawsuit and filed pleadings in this Court waiving any claim against the City.

2. Officer Henderson contends that the trial court erred by denying his motion for summary judgment because he was entitled to official immunity for his acts.

(a) As an initial matter, Shavers has filed a motion to dismiss the appeal on the basis that Officer Henderson may not file an interlocutory appeal from the denial of summary judgment because the trial court’s decision herein does not fall within the collateral order doctrine. Shavers contends that a question of fact exists as to whether Officer Henderson acted with actual malice, and therefore, the issue of official immunity is no longer a purely legal question nor a “conclusive” determination that Officer Henderson is not immune from suit, excepting this appeal from the collateral order doctrine.

The trial court’s order states that

this Court finds that the evidence of record raises an inference that Officer Henderson knew [Shavers] never left the store with the money orders in question. Furthermore, a jury could infer actual malice from the statements which Henderson allegedly made to [Shavers] about making the charges “stick no matter what.” A jury shall consider the many steps that Officer Henderson took to confirm that [Shavers] should be arrested prior to doing so; those steps do not, however, insulate Officer Henderson or the City of Atlanta from liability as a matter of law.

The trial court essentially determined that Officer Henderson was not protected by the doctrine of official immunity because facts existed from which a jury could make an inference of actual malice. This amounted to a final determination of the issue of qualified immunity from suit such that it is immediately appealable under the collateral order doctrine. Accordingly, Shavers’s motion to dismiss is hereby denied.

(b) Officer Henderson argues that the trial court erred by denying his motion for summary judgment based on qualified immunity.

Public agents are immune from liability for their discretionary acts unless they are done with malice or intent to injure: The doctrine of official immunity, also known as qualified immunity, protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. A showing of actual malice is required, which is more than ill will: In the context of official immunity, actual malice requires a deliberate intention to do wrong, and denotes express malice or malice in fact. This definition is consistent with express malice which, in criminal law, is similarly defined as a deliberate intention to do an unlawful act. Actual malice requires more than harboring bad feelings about another. While ill will may be an element of actual malice in many factual situations, its presence alone cannot pierce official immunity; rather, ill will must also be combined with the intent to do something wrongful or illegal.

Officer Henderson argues that under Watkins v. Latif, the trial court erred because a finding of actual malice cannot be made based on an inference. In that case, however, this Court specifically stated that “Watkins does not argue that Latif acted with malice or intent to injure . . . ,” And in any event, “[ijmplied” in the context of “implied malice” constitutes reckless conduct rather than Officer Henderson’s contention that a jury is barred from “inferring” — using the evidence to deduce or conclude — that he acted with “actual malice.”

Under [Shavers’s] version of the facts, which we must accept, [Officer Henderson knew that Shavers did not steal any property from Texaco] prior to the time that [he] decided to arrest [him]. This, in turn, would allow a jury to make a reasonable inference that [Officer Henderson] proceeded in [his] arrest of [Shavers] despite [his] knowledge that [there was no probable cause for such arrest], thereby [establishing that the officer] deliberately intended] to do a wrongful act.

Decided March 11, 2014

Robert N. Godfrey, Tamara N. Baines, LaShawn W. Terry, Veronica L. Hoffler, for appellants.

Craig T. Jones, for appellee.

Therefore, Officer Henderson’s argument fails, and the trial court did not err by denying his motion for summary judgment based on qualified immunity.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       This Court denied Razia Group’s application for interlocutory appeal in an order dated June 17, 2013.

       (Citations and punctuation omitted.) Watkins v. Latif, 323 Ga. App. 306, 306-307 (744 SE2d 860) (2013).

       See, e.g., Bd. of Regents v. Canas, 295 Ga. App. 505, 506-507 (1) (672 SE2d 471) (2009) (holding “that an order that denies a motion to dismiss, based on a conclusive determination that the State (or a state officer or employee) is not immune from suit on the basis of sovereign immunity, meets the[ ] criteria” of the collateral order doctrine and is therefore immediately appealable).

        See Bd. of Regents v. Canas, 295 Ga. App. at 506-507 (1). See also Taylor v. Campbell, 320 Ga. App. 362, 364, n. 3 (739 SE2d 801) (2013). Compare State of Ga. v. Gober, 229 Ga. App. 700, 700-701 (494 SE2d 724) (1997).

       (Citations and punctuation omitted; emphasis supplied.) Taylor v. Waldo, 309 Ga. App. 108, 111 (2) (709 SE2d 278) (2011), quoting Cameron v. Lang, 274 Ga. 122, 123 (1) (549 SE2d 341) (2001); Adams v. Hazelwood, 271 Ga. 414, 414-415 (2) (520 SE2d 896) (1999); Selvy v. Morrison, 292 Ga. App. 702, 704 (665 SE2d 401) (2008).

       323 Ga. App. 306.

       See id. at 309.

       See Merrow v. Hawkins, 266 Ga. 390, 391-392 (1) (467 SE2d 336) (1996) (holding that implied malice is reckless disregard as compared with actual malice which is an intent to do wrong).

        Bateast v. DeKalb County, 258 Ga. App. 131, 132 (572 SE2d 756) (2002).


author: McFadden, Judge.

text:
    A13A2367.
    McCALL et al. v. WILLIAMS et al.
    (756 SE2d 217)
   McFadden, Judge.

This appeal is from a trial court’s finding that an action to set aside an allegedly fraudulent deed is barred by the statute of limitations. Because the trial court correctly ruled that the action is time-barred, we affirm.

In 1994, Elizabeth McCall and four of her siblings executed a deed conveying certain family land to their brother, Robert Williams. In 2005, Robert Williams died intestate. In 2011, McCall and others filed a petition against Williams’ widow and children, seeking to set aside the 1994 deed of conveyance as allegedly fraudulent. The defendants moved to dismiss the complaint as barred by the statute of limitations. The trial court granted the motion, finding that the action was barred by the applicable seven-year statute of limitations. McCall and the other plaintiffs appealed to the Supreme Court of Georgia, which transferred the case to this court on the basis that “actions to set aside or cancel a deed do not invoke either [the Supreme Court’s] title to land jurisdiction or equity jurisdiction.”

1. Seven-year statute of limitations.

An action seeking to set aside or cancel an allegedly fraudulent deed must be brought within seven years from the time the fraud became known. Serchion v. Capstone Partners, 298 Ga. App. 73, 76 (1) (679 SE2d 40) (2009). “[T]he seven-year period does not commence until the fraud is or should have been discovered in the exercise of due diligence, absent a confidential or fiduciary relationship which justified reliance. [Cits.]” Evans v. Dunkley, 316 Ga. App. 204, 207 (1) (728 SE2d 832) (2012). As set forth in their petition, the fraud alleged by the plaintiffs is that their now-deceased brother, Williams, told them the document was an easement; that they were provided the signature pages; and that they signed without knowing it was in fact a deed because they trusted and relied on their brother. The plaintiffs acknowledge that they failed to read the deed before signing it.

The “failure to read the deed will not affect the conveyance of title, for he who can read must read, or show a legal excuse for not doing so, and that fraud which will relieve a party who can read must be such as to prevent him from reading.” Ehlers v. Upper West Side, 292 Ga. 151, 153 (1), n. 5 (733 SE2d 723) (2012) (punctuation omitted), quoting Beckwith v. Peterson, 227 Ga. 403, 404 (1) (181 SE2d 51) (1971). See also Wright v. Safari Club Intl., 322 Ga. App. 486, 493 (4) (745 SE2d 730) (2013) (one who can read, must read, for he is bound by his contracts). “ ‘If a party, by reasonable diligence, could have had knowledge of the truth, equity shall not grant relief.’ OCGA § 23-2-29.” Haffner v. Davis, 290 Ga. 753, 756 (3) (725 SE2d 286) (2012). Here, the plaintiffs can read and therefore, by reasonable diligence, could have had knowledge of the truth of the deed by simply reading it. They have made no showing that there was any fraud which prevented them from doing so, and the allegation that Williams made fraudulent statements did not relieve them of their duty to read the deed before signing.

Moreover, the mere fact that Williams was related to the plaintiffs did not create a fiduciary or confidential relationship upon which they could have justifiably relied. “A mere kinship by blood does not create such a relation. [Cits.]” Stephens v. Walker, 193 Ga. 330, 332 (2) (18 SE2d 537) (1942).

The fact that the plaintiff [s] and the [decedent] are [siblings] does not of itself create a confidential or fiduciary relation between them. There is no presumption that such relation exists between [siblings], arising solely from the fact that they are so related. If a confidential or fiduciary relation exists between [siblings], it must be shown by proof, and the burden is upon the party asserting the existence of such relationship to affirmatively show the same.

Crawford v. Crawford, 134 Ga. 114, 119 (1) (67 SE 673) (1910). The plaintiffs have made no such affirmative showing of a fiduciary relationship. On the contrary, McCall acknowledged that her relationship with Williams was “rocky” and another of the plaintiffs stated that he was “never around him that much.” Regardless, there simply is no evidence of a confidential or fiduciary relationship in this case. See Crumbley v. McCart, 271 Ga. 274, 276 (517 SE2d 786) (1999) (fact that parties were brothers did not demonstrate the existence of a confidential relationship).

Decided March 11, 2014.

Peggy L. Brown, for appellants.

Reddick & Sheppard, Grady K. Reddick, for appellees.

“[I]n the absence of a fiduciary relation, even fraud will not prevent a suit from being barred, where the plaintiff has failed to exercise reasonable diligence to detect such fraud. [Cits.]” Stephens, supra. Because there was no fraud that prevented the plaintiffs from reading the deed and no fiduciary relationship with Williams upon which they could have justifiably relied, the plaintiffs should have discovered the alleged fraud at the time they executed the deed in 1994. Accordingly, the seven-year statute of limitations began to run at that time and expired well before they filed their action in 2011. See Denson v. Denson, 214 Ga. 8, 11 (1) (102 SE2d 605) (1958) (“plaintiffs having means of ascertaining the existence of facts upon which their right is predicated, must exercise reasonable diligence to discover these facts before they can avoid the effect of the statute of limitations”). The trial court thus did not err in ruling that the action was barred by the statute of limitations. See Hall v. Lofton, 275 Ga. 162, 163 (1) (563 SE2d 128) (2002).

2. Other enumerations.

Because of our holding above in Division 1, we need not address the remaining enumerations of error.

Judgment affirmed.

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