author: Blackwell, Judge.

text:
    A11A0859.
    LEWIS v. THE STATE.
    (718 SE2d 112)
   Blackwell, Judge.

Crawford Lewis, a former superintendent of the DeKalb County School System, was charged with serious crimes involving, among other things, alleged corruption in the award and management of school construction contracts, and he hired Michael Brown, a lawyer with the firm Alston & Bird LLF¡ to defend him against these charges. On the motion of the prosecuting attorneys, the court below disqualified Brown and his firm from continuing to represent Lewis, based on a finding that the firm has a conflict of interest because it also represents the employer of a witness for the State, albeit with respect to matters unrelated to both the witness and the prosecution. We granted a petition for interlocutory review to consider whether the court below abused its discretion when it disqualified Brown and his firm. Upon our review of the record, we find no proper basis for the disqualification, and for this reason, we reverse the order disqualifying Brown and Alston & Bird.

Lewis served as the superintendent of the DeKalb County School System between 2005 and 2010, and in March 2010, he hired Brown to represent him in connection with an ongoing criminal investigation of corruption in the school system. Two months later, a DeKalb County grand jury returned a 127-page indictment, charging Lewis and three others with multiple violations of the Racketeer Influenced and Corrupt Organizations Act, OCGA § 16-14-1 et seq., and other crimes involving corruption, including in the award and management of contracts for several school construction projects. According to the indictment, Lewis and Patricia Reid, the chief operations officer of the school system, conspired to defraud the school system by, among other things, manipulating the bidding process to award school construction contracts to contractors that would agree to use Reid’s husband, an architect, as a subcontractor, a practice that, the State alleges, violates Georgia law governing the award of public works contracts, as well as school system regulations and policies concerning construction contracts. The indictment alleges that these crimes were committed between October 2005 and March 2010.

Even before the grand jury returned its indictment, the school system apparently became aware of some problems and relieved Reid of her duties as chief operations officer in November 2009. At that time, the school system engaged Parsons Commercial Technology Group, Inc., a large engineering and construction firm with operations throughout the United States and overseas, to manage its ongoing school construction projects, which Reid previously had managed. Barbara Colman, a Parsons employee, was assigned to work from the offices of the DeKalb County School System and manage these construction projects. On September 17, 2010, the State provided Lewis with a witness list, which identifies Colman as one of seventy-three individuals from whom the State might elicit testimony at the trial of this case. Apparently around the same time, the State served a subpoena upon Colman to compel her appearance at trial.

When Colman learned that she might be called as a witness at trial, she contacted an in-house lawyer at Parsons, and the Parsons lawyer then contacted a lawyer in the Charlotte, North Carolina office of Alston & Bird. The law firm, it seems, for several years has represented Parsons in a variety of matters and still represents Parsons today. For instance, the firm has represented Parsons in matters concerning the construction of light rail lines in a state other than Georgia, the purchase and sale of assets in states other than Georgia, employment disputes, and bid protests in connection with emissions projects in Georgia. Nothing in the record gives us any cause to believe, however, that Alston & Bird has represented Parsons in any matter concerning Colman or the testimony that she might give at trial. To the contrary, Brown told the court below at the hearing on the motion to disqualify, no lawyer at the firm ever has “met with, spoken to, or interviewed” Colman, and no lawyer at the firm ever has undertaken any representation of Parsons concerning its work for the DeKalb County School System.

The Parsons lawyer asked the Alston & Bird lawyer in Charlotte whether the firm could represent Colman in connection with the subpoena and her testimony at the trial. The Charlotte lawyer then contacted Brown, and after some deliberations and consultations, Alston & Bird declined to represent Colman and so informed Parsons. In the course of these deliberations and consultations, Brown called one of the prosecuting attorneys in this case on September 27, 2010 and disclosed that Alston & Bird represents Parsons in other matters and that Parsons had asked Alston & Bird to represent Colman in connection with her testimony in this case.

On September 28, the State filed a motion to disqualify Brown and Alston & Bird from continuing to represent Lewis, and the court below convened a hearing on the motion on September 30. In its motion, the State described Colman as “a witness for the State [who] has previously given statements to the District Attorney’s Office concerning the improprieties of the actions of Lewis and [Reid],” and at the hearing, a prosecuting attorney described her as “a key State witness,” but the record contains no more detailed information about the nature or substance of the testimony that prosecutors anticipate Colman will give at trial. Regardless of the nature and substance of her testimony, the State reasoned in its motion and at the hearing that, because Colman is expected to testify about things of which she acquired knowledge as a Parsons employee, Colman and Parsons are indistinguishable and are, for ethical purposes, one and the same person. And because Parsons would appear at trial in the person of Colman as, in the words of a prosecuting attorney, “a key State witness,” Parsons and Lewis are directly adverse, the State contended, and Alston & Bird would be put in the ethically untenable position at trial of either “cross-examining one client on behalf of another client or not cross-examining one client on behalf of another client.” Invoking the usual rule that no lawyer can represent one client in a matter directly adverse to another, the State asserted that Brown and Alston & Bird were absolutely prohibited from simultaneously representing both Parsons and Lewis.

At the hearing, Lewis responded that, according to settled law, Colman and Parsons are distinct persons for ethical purposes, Alston & Bird never has represented Colman, and Brown does not face the prospect, therefore, of representing one client in a matter directly adverse to another or cross-examining one client on behalf of another. Moreover, Lewis argued, although Alston & Bird has an established relationship with Parsons, it does not represent, and never has represented, Parsons in any matter related to Colman or her work for the DeKalb County School System, and in any event, Parsons has waived any conflict that might arise from the simultaneous representation of Parsons and Lewis. Nothing about the relationship between Alston & Bird and Parsons, Lewis asserted, would tend to impair a thorough and sifting cross-examination of Colman at trial on behalf of Lewis. Lewis himself also testified at the hearing and said that he had discussed the conflict issue with Brown, that he understood the conflict issue, and that he waived any conflict presented by the firm’s simultaneous representation of Parsons.

On October 1, the court below entered an order granting the motion of the State and disqualifying Brown and Alston & Bird from continuing to represent Lewis, concluding that the circumstances presented the firm with “an actual conflict [of interest] which undermines effective representation.” In its order, the court accepted that Colman would be a “key witness” and found that a thorough and sifting cross-examination of Colman might imperil the relationship between Alston & Bird and Parsons, a relationship that the court described as a “productive” and “successful” one. Given the desire of the law firm to continue to earn fees from this “productive” and “successful” relationship, and given the damage that the relationship might sustain as a result, Brown might be tempted at trial to forego a thorough and sifting cross-examination of Colman, the court below said, and the relationship between Alston & Bird and Parsons, therefore, was a practical impediment to Brown rendering effective assistance to Lewis at trial. The court concluded that “[such] a practical impediment to a thorough and sifting cross examination of a key State’s witness . . . undermines the requisite effectiveness and demands removal.” In its order, the court did not mention Lewis’s and Parsons’s consent to the simultaneous representation. The court certified its order of disqualification for immediate review pursuant to OCGA § 5-6-34 (b), and Lewis timely filed a petition for interlocutory review, which we granted.

On appeal, Lewis argues that the disqualification of his counsel was an abuse of discretion because the record simply does not show that the relationship between Alston & Bird and Parsons is reasonably likely to impair a thorough and sifting cross-examination of Colman. The State, on the other hand, continues to press its theory that Colman and Parsons are one and the same, that Parsons (in the person of Colman) will be directly adverse to Lewis at trial, and that Alston & Bird, therefore, absolutely cannot represent Parsons and Lewis simultaneously. The State also defends the alternative reasoning of the court below, arguing that the record is sufficient to show, even absent any direct adversity between Parsons and Lewis, a real risk that the simultaneous representation would chill the vigor of any cross-examination of Colman and thereby impair Lewis’s right to the effective assistance of counsel. We will address these arguments in turn, but we begin first with some fundamental principles that guide our consideration of this case.

1. The Sixth Amendment guarantees the right of the accused in a criminal prosecution “to have the Assistance of Counsel for his defen[s]e,” and Article I, Section I, Paragraph XTV, of the Georgia Constitution likewise guarantees that “[e]very person charged with an offense against the laws of this state shall have the privilege and benefit of counsel.” As the United States Supreme Court has explained, “an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him.” United States v. Gonzalez-Lopez, 548 U. S. 140, 144 (II) (126 SC 2557, 165 LE2d 409) (2006); see also Wheat v. United States, 486 U. S. 153, 159 (II) (108 SC 1692, 100 LE2d 140) (1988) (“[T]he right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment. . . .”); Powell v. Alabama, 287 U. S. 45, 53 (53 SC 55, 77 LE 158) (1932) (“It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.”); Registe v. State, 287 Ga. 542, 544 (2) (697 SE2d 804) (2010) (“One element of the right to counsel in criminal prosecutions, as guaranteed by the Sixth Amendment . . . [and] the Georgia Constitution of 1983, is the right of a defendant who does not require appointed counsel to choose who will represent him.”). Indeed, the right to select the counsel of choice is, the United States Supreme Court has said, “the root meaning of the constitutional guarantee” of the right to the assistance of counsel. Gonzalez-Lopez, 548 U. S. at 147-148 (II).

The right to counsel of choice is not, however, absolute. Wheat, 486 U. S. at 159 (II) (“The Sixth Amendment right to choose one’s own counsel is circumscribed in several important respects.”); see also Gonzalez-Lopez, 548 U. S. at 144 (II). Among the limitations of the right is the settled principle that “a defendant does not have a right to be represented by an attorney who is ethically prohibited from doing so, most commonly due to a conflict of interest.” Registe, 287 Ga. at 544 (2); see also Wheat, 486 U. S. at 160 (II); United States v. Campbell, 491 F3d 1306, 1310 (II) (11th Cir. 2007). Accordingly, the courts “must recognize a presumption in favor of [an accused’s] counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict [of interests] but by a showing of a serious potential for conflict.” Wheat, 486 U. S. at 164 (II).

In considering whether a lawyer is confronted with an actual or potential conflict of interest, we are guided by the ethical standards for lawyers set out in the Georgia Rules of Professional Conduct. See Registe, 287 Ga. at 544 (3). The standard most relevant to this appeal is found in Rule 1.7 (a), which provides that “[a] lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer’s own interests or the lawyer’s duties to another client . . . will materially and adversely affect the representation of the client.” The commentary accompanying Rule 1.7 explains that, under Rule 1.7 (a), “a lawyer ordinarily may not act as advocate [directly] against a person the lawyer represents in some other matter, even if it is wholly unrelated.” Ga. R. Prof. Conduct 1.7, comment [3], In addition, a lawyer ordinarily cannot represent a client when he “cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer’s other competing responsibilities or interests.” Ga. R. Prof. Conduct 1.7, comment [4], Sometimes a conflict arising from the simultaneous representation of multiple clients can be cured by the consent of the clients. Ga. R. Prof. Conduct 1.7 (b). Clients may not consent, however, to a conflict that “involves circumstances rendering it reasonably unlikely that the lawyer will be able to provide adequate representation to one or more of the affected clients.” Ga. R. Prof. Conduct 1.7 (c) (3). And in the context of a criminal prosecution, the courts have noted that the consent of the accused “does not always cure the problem,” especially considering the independent interests of the judiciary “ ‘in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.’ ” Registe, 287 Ga. at 544 (2) (quoting Wheat, 486 U. S. at 160 (II)); see also Gonzalez-Lopez, 548 U. S. at 151-152 (IV) (“Nor may a defendant . . . demand that a court honor his waiver of conflict-free representation.”).

Whether these ethical standards preclude a lawyer from representing an accused in a criminal prosecution is committed to the sound discretion of the trial court. Registe, 287 Ga. at 544 (2). That said, “the right of counsel is an important interest which requires that any curtailment of the client’s right to counsel of choice be approached with great caution.” Blumenfeld v. Borenstein, 247 Ga. 406, 408 (276 SE2d 607) (1981); see also Piedmont Hosp. v. Reddick, 267 Ga. App. 68, 76 (7) (b) (599 SE2d 20) (2004); Head v. CSX Transp., 259 Ga. App. 396, 398 (577 SE2d 12) (2003); Ga. Baptist Health Care System v. Hanafi, 253 Ga. App. 540, 541 (559 SE2d 746) (2002). Aside from the profound importance of the right to select counsel of choice and its constitutional status, there are practical reasons why courts approach a request to disqualify counsel of choice with such caution. First, as our Supreme Court has acknowledged, the disqualification of counsel of choice often leads to substantial practical difficulties, inevitably delaying the proceedings and working a unique hardship on the client whose lawyer has been disqualified, who “may suffer the loss of time and money in finding new counsel and may lose the benefit of [his] longtime counsel’s specialized knowledge of [his circumstances].” Bernocchi v. Forcucci, 279 Ga. 460, 462 (2) (614 SE2d 775) (2005) (citation and punctuation omitted). Second, the consequences of an erroneous deprivation of the right to select counsel of choice in criminal prosecutions are severe. Such an erroneous deprivation is a structural error, one that affects “the framework within which the trial proceeds,” and it requires an appellate court to reverse any conviction that follows without any inquiry into harm or prejudice. See Gonzalez-Lopez, 548 U. S. at 148-150 (III). Finally, as our Court has noted, courts must cast a skeptical eye toward motions to disqualify counsel of choice because “parties often move for disqualification of opposing counsel for tactical reasons.” Clough v. Richelo, 274 Ga. App. 129, 132 (1) (616 SE2d 888) (2005); see also Wheat, 486 U. S. at 163 (II) (“Petitioner of course rightly points out that the Government may seek to ‘manufacture’ a conflict in order to prevent a defendant from having a particularly able defense counsel at his side; but trial courts are undoubtedly aware of this possibility, and must take it into consideration along with all of the other factors which inform this sort of a decision.”).

“Because of the right involved and the hardships brought about [by its deprivation], disqualification of chosen counsel should be seen as an extraordinary remedy and should be granted sparingly.” Bernocchi, 279 Ga. at 462 (2). And it is the burden of the party seeking to disqualify counsel to prove that the extraordinary remedy of disqualification is warranted. See Hastings v. Courtland, 197 Ga. App. 508, 509 (1) (398 SE2d 747) (1990). With these principles in mind, we turn now to the disqualification of Brown and his firm in this case.

2. We first consider the contention of the State that Parsons and Colman are one and the same, that Parsons will be directly adverse to Lewis at trial because Parsons (in the person of Colman) will be a “key witness” against him, and that the Rules of Professional Conduct absolutely prohibit a lawyer from representing one client in a matter directly adverse to another. As a general rule, a corporation and its employees are distinct persons in the contemplation of the law, see Kilsheimer v. State, 250 Ga. 549, 550 (299 SE2d 733) (1983) (“[T]he cardinal rule of corporate law is that the corporation possesses a legal existence separate and apart from that of its officers, employees, shareholders, and directors.”), and the general rule appertains in the realm of attorney-client relationships. See Addley v. Beizer, 205 Ga. App. 714, 715 (1) (423 SE2d 398) (1992) (“One who serves as attorney for a corporation does not, by virtue of that fact, serve as attorney for the officers of the corporation in their personal capacity. . . .”); see also Zielinski v. Clorox Co., 270 Ga. 38, 41 (2) (504 SE2d 683) (1998). The American Bar Association explains in the commentary accompanying its Model Rules of Professional Conduct, on which the Georgia Rules are based, that “[a] lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily represent any constituent. . . .’’ABA Model R. Prof. Conduct 1.7, comment [34]; see also Restatement 3d of the Law Governing Lawyers § 96, comment (b) (“By representing the organization, a lawyer does not thereby also form a client-lawyer relationship with all or any individuals employed by it or who direct its operations or who have an ownership or other beneficial interest in it, such as its shareholders.”). The commentary accompanying the Georgia Rules acknowledges as well that “constituents of an organizational client” are not themselves clients of the lawyer just because the lawyer communicates and deals with those constituents in their organizational capacity. Ga. R. Prof. Conduct 1.13, comment [2], This principle also is reflected in the provision of the Georgia Rules that, “[i]n dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when it is apparent that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.” Ga. R. Prof. Conduct 1.13 (d).

Notwithstanding the usual rule that a corporation and its employees are distinct persons for the purposes of legal ethics, the State asserts that a departure from the usual rule is warranted in this case because, when Colman appears as a witness at trial, she will appear as a representative of Parsons and not on her own behalf. This argument seems to confuse the capacity in which Colman acquired personal knowledge of the facts about which she will testify and the capacity in which she will appear at trial. It may be true that Colman has knowledge of the matters about which she will testify by virtue of her employment with Parsons and her assignment by Parsons to work with the DeKalb County School System. But there is no reason to believe that, when Colman appears to testify at trial, she will do so on behalf of Parsons. In the first place, it was the prosecuting attorneys, not Parsons, who identified Colman as a witness for trial. Nothing in the record suggests that Parsons has any stake whatsoever, pecuniary or otherwise, in the outcome of the Lewis prosecution, such that its interests might be furthered by a representative appearing as a witness for the State, and nothing suggests that Parsons cares in the least whether any witness appears on its behalf at the trial. Moreover, although Colman presumably will be asked at trial to testify about matters of which she has knowledge by virtue of her work for Parsons, the fact remains that Colman will be asked to testify from her own personal knowledge, not the collective knowledge of her employer. The State fails to cite a single decision from any jurisdiction that supports its novel theory that Parsons and Colman are one and the same for ethical purposes, and our own research has turned up no such authority. Even if it might be appropriate in some case to treat an employer and its testifying employee as one and the same for purposes of a conflict analysis, we are unpersuaded that we should do so here, where the record shows nothing more than that the employee is likely to testify about subjects of which she has knowledge by virtue of her employment. That is not enough, we think, to disregard the settled distinction between employer and employee.

3. That Parsons and Colman are distinct persons for the purposes of our analysis, however, does not extinguish the possibility of conflict because, as the court below recognized, the interests of two clients can conflict, even when they are not directly adverse. The court below premised its disqualification of Brown and his firm on its findings that the relationship between Alston & Bird and Parsons is a “productive” and “successful” one, that Brown and his firm have a pecuniary interest in maintaining that relationship, that a thorough and sifting cross-examination of Colman, a Parsons employee, might imperil that relationship, and that the potential threat to the relationship might tempt Brown to cross-examine Colman less vigorously, thereby depriving Lewis of the effective assistance of counsel. If all these findings could be sustained, they likely would warrant the disqualification of Brown and his firm because it is well settled that a lawyer generally cannot represent a client “if there is a significant risk that the lawyer’s own interests or the lawyer’s duties to another client . . . will materially and adversely affect the representation of the client.” Ga. R. Prof. Conduct 1.7 (a); see generally Registe, 287 Ga. at 547 (3) (b); Snapping Shoals Elec. Membership Corp. v. RLI Ins. Corp., 2006 U. S. Dist. LEXIS 45226 (N.D. Ga. 2006). But upon our review of the record, we do not think all these findings can be sustained. Accordingly, we must conclude that the court below abused its discretion when it disqualified Lewis’s counsel of choice.

(a) We accept that the record supports the finding that a “productive” and “successful” relationship between Alston & Bird and Parsons exists, inasmuch as the law firm apparently has undertaken representations of Parsons in a number of matters, representations that presumably would not have been undertaken if both the law firm and Parsons did not find the relationship “productive” and “successful.” And we accept that most every law firm has some interest in maintaining its “productive” and “successful” relationships with clients and continuing to receive fees for representing those clients. But the record tells us nothing about the financial significance of the relationship to Alston & Bird. The court below found that more than one lawyer, more than one practice group and more than one office of the law firm has done some amount of work for Parsons, but these facts seem rather unremarkable, considering that Alston & Bird is a law firm of approximately 800 lawyers, with numerous practice groups and multiple offices throughout the country. It might very well be that the relationship between Alston & Bird and Parsons is so lucrative that the law firm could hardly afford to lose Parsons as a client, but it might also be that the work Alston & Bird is doing for Lewis is more lucrative than the work it has done, and the work it might reasonably expect to do in the future, for Parsons. We simply do not know because the record says nothing about these things. And for this reason, although we accept the findings that Alston & Bird and Parsons share a “productive” and “successful” relationship and that the firm has an interest in continuing to earn fees as a result of the relationship, we do not think these facts tell us much, if anything, about the extent to which a member of the firm might be tempted to forego vigorous representation of another client to preserve the relationship.

(b) More important, we see nothing in the record to sustain the finding that a thorough and sifting cross-examination of Colman is likely to imperil the relationship between Alston & Bird and Parsons. The court below did not explain the basis for this finding, but we can think of a few reasons why the court might have thought that a vigorous cross-examination of Colman had the potential to harm the relationship, and we will address each in turn. Perhaps the court below thought that Parsons might have some stake in the Lewis case. But there is no reason to believe that Parsons has any interest in the outcome of the Lewis prosecution, that it cares much about whether Lewis is convicted, or that it cares much about whether the prosecuting attorneys will prove successful in their efforts to elicit testimony from Colman that tends in some manner to incriminate Lewis. Parsons and Colman, after all, were retained not by the office of the prosecuting attorneys to help prepare this prosecution, but instead by the DeKalb County School System to help run its school construction program. Nothing in the record suggests that the school system has directed Parsons or Colman to help build a case against Lewis or that the working relationship between Parsons and the school system depends on the outcome of the prosecution.

Maybe the court below worried that a thorough and sifting cross-examination of Colman might tend to embarrass Parsons or to cast the soundness of its practices or the quality of its work in a poor light, but nothing in the record gives any cause for such worry. We know, and the court below knew, virtually nothing meaningful about the nature and substance of the testimony that Colman is expected to give at trial, because the record simply is silent about the nature and substance of her testimony. It is true, of course, that the prosecuting attorneys described Colman in the proceedings below as “a key State witness” and someone who has some knowledge “concerning the improprieties of the actions of Lewis and [Reid],” but the former description is nothing but a bald conclusion, and the latter description is entirely unremarkable, inasmuch as most of the 73 witnesses identified by the State, we presume, have some knowledge of some facts that concern the alleged improprieties of one or more of the defendants. So, although the statement of a lawyer in his place as an officer of the court is entitled to some weight and may sometimes properly substitute for evidence, see Cross v. Cook, 147 Ga. App. 695, 696 (3) (250 SE2d 28) (1978), the generalized and conclusory statements in this case about the nature and substance of the testimony Colman will offer simply do not contain the kind of detail that would warrant a finding that her testimony will involve the practices of, or quality of work done by, Parsons. See Carragher v. Harman, 220 Ga. App. 690, 692 (1) (469 SE2d 443) (1996) (conclusory statements of counsel entitled to no weight); cf. Rank v. Rank, 287 Ga. 147, 149 (2) (695 SE2d 13) (2010) (statements of counsel entitled to weight, where counsel gave “detailed overviews” of the issues and case). Consequently, there is no basis for a finding that a vigorous cross-examination of Colman is likely to reflect negatively upon Parsons or its reputation in the construction industry.

Perhaps the court below worried that a vigorous cross-examination of Colman might embarrass her or otherwise be hurtful to her and that such a result would harm the relationship between Parsons and Alston & Bird. But an effective cross-examination does not necessarily require that the witness leave the stand humiliated or in tears. And because we know nothing about the substance and nature of the testimony that Colman is expected to give at trial, we have no reason to think that a thorough and sifting cross-examination of her would tend to cause any hurt feelings. We acknowledge that most people would not wish to be cross-examined by a lawyer about anything for any length of time, but we have no cause to conclude that Colman or Parsons might take offense at the way in which Brown reasonably might be expected to cross-examine Colman at trial. Moreover, although the fact that Parsons inquired of Alston & Bird about its representation of Colman in connection with her testimony in this case might suggest that Parsons has some concern for her welfare and comfort, nothing in the record reflects whether Parsons secures counsel as a matter of course for its employees when they are called to testify, nothing speaks to the rank and status that Colman holds within the organization, and the fact remains that Parsons, when it became aware that Alston & Bird represents Lewis, gave its consent to the simultaneous representation, knowing that an Alston & Bird lawyer would likely cross-examine Colman at trial.

Finally, maybe the court below was concerned that Alston & Bird possesses information obtained in confidence from Parsons that might bear upon a cross-examination of Colman. The Georgia Rules of Professional Conduct require a lawyer generally to

maintain in confidence all information gained in the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client, unless the client consents after consultation.

Ga. R. Prof. Conduct 1.6 (a). In its representations of Parsons, Alston & Bird undoubtedly has acquired confidential information that, by virtue of its continuing obligations to Parsons, it cannot use or disclose for the benefit of another client. But nothing in the record suggests any meaningful likelihood that the confidential information that the firm has acquired in its representations of Parsons has any bearing upon a cross-examination of Colman. The record is undisputed that no Alston & Bird lawyer has represented Parsons in any matter that involved Colman or the work that Parsons has done for the DeKalb County School System. The possibility that Alston & Bird acquired confidential information from Parsons that might be of use in a cross-examination of Colman is purely conjectural, and conjecture is no reason to deprive Lewis of his counsel of choice. Cf. Rescigno v. Vesali, 306 Ga. App. 610, 613 (1) (703 SE2d 65) (2010) (that lawyer acquired general financial information from a former client, and now represents another client adverse to the former client, does not require disqualification in the absence of a reason to believe that confidential information acquired from the first client would be of use to the second); Benson v. McNutt, 289 Ga. App. 565, 566 (657 SE2d 639) (2008) (same); Duvall v. Bledsoe, 274 Ga. App. 256, 259-260 (617 SE2d 601) (2005) (same).

(c) Finally, we turn to the finding that Brown might be tempted to forego a thorough and sifting cross-examination of Colman to preserve the “productive” and “successful” relationship between Alston & Bird and Parsons. Because the existence of that relationship is undisputed, we suppose that there is some risk that a member of the firm might not wish to cross-examine a witness employed by Parsons as vigorously as a witness who is not. But the extent of that risk is absolutely unknowable from the record in this case. We know practically nothing about the pecuniary significance of the relationship between the law firm and Parsons, except that more than one lawyer in more than one office of a firm of approximately 800 lawyers has represented Parsons; we know nothing about the relationship between Colman and Parsons, except that she is an employee; we know nothing about the substance and nature of the testimony she is expected to give, except the conclusion of the prosecuting attorneys that she will be a “key” witness and has something incriminating to say; we know nothing about the extent to which her testimony relates to the work that Parsons has done for the DeKalb County School System, except that she presumably will testify about some facts of which she acquired knowledge in the course of that work; we know absolutely nothing about any interest that Parsons might have in the outcome of this prosecution or in the testimony that Colman is expected to give at trial; and we know nothing about the likelihood that Alston & Bird has any confidential information that might bear upon a cross-examination of Colman.

The record reveals merely that Alston & Bird has a relationship with Parsons. The remainder of the case for disqualification consists of one conjecture piled upon another. See Cardinal Robotics v. Moody, 287 Ga. 18, 22 (694 SE2d 346) (2010) (“bare assertion” of conflict is insufficient to sustain burden of showing basis for disqualification); Dismuke v. C & S Trust Co., 261 Ga. 525, 527 (3) (407 SE2d 739) (1991) (“In the absence of any evidence supporting the bare assertion [of conflict], the trial court did not err in denying the motion to disqualify.”); Schaff v. State, 304 Ga. App. 638, 642 (1) (697 SE2d 305) (2010) (speculation cannot support disqualification); Life Care Centers of America v. Smith, 298 Ga. App. 739, 745 (3) (681 SE2d 182) (2009) (absence of evidence of wrongdoing by counsel, “[bjeyond conclusory allegations,” does not justify disqualification); Duvall, 274 Ga. App. at 260 (“bare assertion” of conflict insufficient to warrant disqualification); Clough, 274 Ga. App. at 135-136 (1) (b) (mere speculation is no basis for disqualification). We are aware of no criminal case in which a court deprived an accused of his counsel of choice based upon such speculation and conjecture, and we do not think the constitutional guarantee of the right to counsel of choice can be overcome so easily. The Georgia Rules of Professional Conduct recognize that a disqualifying conflict exists only when there is a “significant risk that the lawyer’s own interests or the lawyer’s duties to another client . . . will materially and adversely affect the representation of the client,” Ga. R. Prof. Conduct 1.7 (a) (emphasis supplied), and the record here shows nothing more than a bare possibility of conflicting interests, a far cry from a “significant risk.” While the State may be able to present facts that would authorize the trial court to disqualify Brown and Alston & Bird, it has not done so yet, and the record now before us does not warrant disqualification. For these reasons, it was an abuse of the discretion of the court below to disqualify Brown and his firm.

Decided October 28, 2011

Alston & Bird, Michael L. Brown, Bernard Taylor, Angela Adams, for appellant.

Robert D. James, Jr., District Attorney, John S. Melvin, Deborah D. Wellborn, Michael S. Carlson, Assistant District Attorneys, Rhani M. Lott, for appellee.

Donald F. Samuel, George P. Donaldson III, J. Scott Key, amici curiae.

Judgment reversed.

Barnes, P. J., and Adams, J., concur.

       The indictment also charges Lewis with theft by taking, see OCGA § 16-8-2, and unlawfully accepting bribes, see OCGA § 16-10-2 (a) (2).

       In addition to the allegations about the manipulation of the bid and award process, the indictment alleges that Lewis, Reid and others defrauded the school system in other ways, including the disbursement of school funds to Reid’s husband for work that he did not do, the solicitation and receipt of tickets to sporting events and concerts from school contractors, the sale of school vehicles to Lewis and Reid for substantially less than their fair market values, the use of school purchasing cards to rent hotel rooms for personal use, and the disbursement of school funds to pay unearned overtime to school employees who ran personal errands for Reid.

       The indictment also alleges that Lewis, Reid and others obstructed, and attempted to obstruct, the investigation of corruption in the DeKalb County School System.

       Nothing in the witness list identifies Colman as an employee of Parsons. Instead, the witness list simply identifies her as “Barbara Colman, Witness (civilian)” and reports her address as the address of an office of the DeKalb County School System.

       The record does not give us any reason to think that the Alston & Bird lawyer in Charlotte received any confidential information from Parsons about Colman, her testimony in this case, or the work that Parsons has done for the DeKalb County School System in the course of his discussion with the Parsons lawyer.

       To the extent that the representation of both Parsons and Lewis might present a conflict of interest for Alston & Bird, Parsons waived the conflict.

       Nothing in the order suggests that the court accepted the argument of the State that Colman and Parsons are one and the same, that Parsons (in the person of Colman) is directly adverse to Lewis, and that Alston & Bird absolutely cannot, for that reason alone, simultaneously represent Parsons and Lewis.

       The right to select counsel of choice is a right of profound importance and great practical significance to an accused. In many respects, the selection of a particular lawyer will dictate the course of the proceedings to follow: ,
      Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial.

        Gonzalez-Lopez, 548 U. S. at 150 (III). In other words, lawyers are not fungible, swapping one lawyer for another is not without great consequence, and the choice of a lawyer in some cases may effectively decide the outcome for the client.

       Other limitations of the right include that “a defendant may not insist on representation by an attorney he cannot afford or who for other reasons declines to represent the defendant.” Wheat, 486 U. S. at 159 (II).

       The commentary explains that this prohibition extends only to cases of direct adversity and does not preclude the “simultaneous representation in unrelated matters of clients whose interests are only generally adverse, such as competing economic enterprises.” Ga. R. Prof. Conduct 1.7, comment [3], Moreover, the commentary acknowledges that a lawyer may in some circumstances act as an advocate on behalf of one client directly against another: “For example, a lawyer representing an enterprise with diverse operations may accept employment as an advocate against the enterprise in an unrelated matter if doing so will not adversely affect the lawyer’s relationship with the enterprise or conduct of the suit and if both clients consent upon consultation.” Ga. R. Prof. Conduct 1.7, comment 181.

       Client consent to a conflict of interest arising from the simultaneous representation of multiple clients requires that the client consult with the lawyer, receive “reasonable and adequate information about the material risks of the representation” in writing, and have an opportunity to consult with independent counsel. Ga. R. Prof. Conduct 1.7 (b).

       The reference to “longtime counsel” might seem inapt in a case in which Lewis has been represented by Brown and his firm for less than a year. Bu,t Lewis retained Brown and his firm even before Lewis was indicted, and Brown has been at his side for the conclusion of the investigation that led to his indictment and the entirety of the criminal prosecution. And Brown and his firm have spent “hundreds of hours” preparing a defense of Lewis. We think it is quite possible that, in the course of this representation, Brown and his firm have acquired a “specialized knowledge” of their client and the operations of the school system that their client managed for five years, knowledge that is neither readily transferable nor easily replicated.

       By mentioning the possibility that motions for disqualifications may sometimes be driven by impure motives, we do not mean to suggest that the prosecuting attorneys in this case have any such motives. We have seen nothing in the record to cause us to think that these prosecuting attorneys have acted in bad faith.

       The argument of the State admits of no workable limits, and we worry that, if accepted, it would be the exception that swallows the usual rule that we distinguish between corporations and their constituents. For example, accepting the State’s argument would suggest that a soft-drink bottling company and its employee, who witnesses the robbery of a convenience store while stocking a vending machine, are indistinct. Or that a municipality and its employee, who witnesses a traffic accident while driving a sanitation truck, are indistinct. Or that an apartment management firm and its employee, who discovers incriminating evidence while performing routine repairs in the apartment of a tenant, are indistinct. We fail to see a principled distinction between these fact patterns and the one presented here, and the State has pointed us to none.

       Although a prosecuting attorney represented at oral argument in this Court that Colman would testify as an expert, the September 17 witness list does not identify Colman as an expert witness, and the list does explicitly identify another witness as an expert. Moreover, if Colman were to testify as an expert, we fail to understand how that would bolster the case for disqualification. We know that the prerogative of the State to choose even its fact witnesses sometimes must yield to the constitutional right of the accused to choose his counsel, at least when the testimony of a particular witness is not absolutely necessary and another witness can testify to the same facts. See, e.g., Schaff v. State, 304 Ga. App. 638, 640-642 (1) (697 SE2d 305) (2010) (reversing disqualification of counsel because, although the State identified counsel as a potential witness at trial, other witnesses were available to testify to the same facts). And in many respects, fact witnesses are not as readily interchangeable as experts because, unlike the class of potential fact witnesses, which is limited to those persons with personal knowledge of relevant past events and occurrences, the class of potential expert witnesses usually is not so limited. So, absent a showing that a particular expert is irreplaceable, some reasonable person might wonder if the prerogative of the State to choose its experts ought not yield to the right of the accused to choose his counsel when the expert of choice presents a conflict for the counsel of choice. This is not a question, however, that we decide today.

       The State has filed a motion to strike certain documents, which were filed in the court below only after it decided the motion to disqualify, from the record on appeal. Lewis has filed a motion to supplement the record on appeal with additional documents filed in the court below after it decided the motion to disqualify as well as a transcript of a hearing after the motion to disqualify was decided. We deny both motions. We note that our decision in this case is based exclusively upon the record before the court below at the time it disqualified Brown and his firm.


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A11A0893.
    MIRANDA et al. v. STEWART.
    (718 SE2d 123)
   Smith, Presiding Judge.

Olga Maria Miranda and Luz Sulay Solano Monge appeal from the trial court’s order denying their motion to set aside the dismissal of their case for failure to respond to discovery. Because the trial court erred in holding that it could not set aside the judgment outside the term of court in which it was entered, we vacate the order denying the motion to set aside and remand for further proceedings consistent with this opinion.

In July 2006, Miranda and Solano filed suit against appellee Aaron Stewart, seeking damages for personal injuries arising out of an automobile accident in August 2004. With his answer, Stewart served interrogatories and requests for production.

On February 5, 2007, appellee fded a motion to compel, alleging that appellants had failed to respond to discovery or request an extension of time to respond. Appellants did not respond to the motion. On February 12, 2007, the trial court entered an order granting the motion to compel. This order gave appellants ten days to respond to the discovery. On February 26, 2007, discovery was extended for two months by consent order, but appellants still did not respond to the discovery requests. On March 16, 2007, appellee moved for sanctions for failure to comply with the February 12 order. On March 26, 2007, the trial court granted the motion for sanctions and dismissed appellants’ complaint.

On June 29, 2009, almost two years after entry of the order of dismissal, appellants filed a motion to set aside the order, alleging only that the trial court had failed to afford them a hearing on the motion. The same day, the trial court granted the motion to set aside. But appellee filed a response to the motion to set aside, objecting that the order should not be set aside because appellants had shown no reason for their complete failure to respond and in fact had failed to file any response to appellee’s discovery with their motion. The trial court then entered a second order on August 3, 2009, denying appellants’ motion to set aside the order for sanctions.

Over a year later, on August 6, 2010, appellants filed another brief in support of their motion to set aside, asserting for the first time that they had failed to receive notice of the trial court’s dismissal order. The trial court denied the motion to set aside on the ground that the term in which the March 26, 2007 order of dismissal was entered had expired and it therefore had no jurisdiction over the issue. This appeal followed.

The trial court erred in concluding that a motion to set aside a judgment under OCGA § 9-11-60 must be filed within the same term of court in which the judgment complained of was entered.

Under our law, a judgment not based upon a jury verdict is considered within the breast of the court during the term of court in which it is entered, and a court may exercise its discretion for meritorious reasons to set aside a judgment within the same term of court. Once that term of court has ended, however, a judgment may only be set aside under the procedures in OCGA § 9-11-60 (d).

(Citations omitted.) First Baptist Church &c. v. King, 208 Ga. App. 250, 251 (1) (430 SE2d 635) (1993). See also Piggly Wiggly Southern v. McCook, 216 Ga. App. 335, 336 (1) (454 SE2d 203) (1995) (contrasting limited power to rule on post-term motions under Rule 60 with inherent discretion to set aside judgment during same term of court). Under OCGA § 9-11-60 (f), a motion to set aside a judgment may be brought within three years in most circumstances, and under OCGA § 9-11-60 (g) a motion to correct a clerical mistake may be brought “at any time.”

Levin Co. v. Walker, 289 Ga. App. 299 (656 SE2d 588) (2008), relied upon by the trial court, is inapposite here, as it did not address the denial of a motion to set aside a judgment under Rule 60, but the erroneous grant of a motion for reconsideration filed four terms after entry of the order complained of. Id. at 299-300. “A motion for reconsideration filed within the term of court that a judgment is entered extends the authority of a trial judge to modify its judgment after the term expires; however, such a motion filed after the term in which it was entered, as here, does not, [and] such authority is then lost.” (Citation, punctuation and footnote omitted.) Masters v. Clark, 269 Ga. App. 537, 539 (604 SE2d 556) (2004).

This case, in contrast, turns on a narrow and specific point of law: the procedure to be followed when a party files a motion to set aside under OCGA § 9-11-60 (g) to correct a trial court’s failure to provide a losing party with notice of a judgment as required by OCGA § 15-6-21 (c).

Ordinarily, the losing party must pursue his appeal in a timely manner as required by the Appellate Practice Act. But where no notice is sent by the trial court or by the clerk to the losing party, this court holds that an action may be brought under Code Ann. § 81A-160 (g) [now OCGA § 9-11-60 (g)] to set aside the earlier judgment; and upon a finding that notice was not provided as required by Code Ann. § 24-2620 [now OCGA § 15-6-21], the motion to set aside may be granted, the judgment re-entered, and the thirty-day period within which the losing party must appeal will begin to run from the date of the re-entry. Of course, where notice was sent and received, and the trial judge so finds, he should refuse to set aside the earlier judgment.

Cambron v. Canal Ins. Co., 246 Ga. 147, 148-149 (1) (269 SE2d 426) (1980).

The holding in Cambrón serves to correct the prejudice caused by a trial court’s error in failing to notify the losing party of the judgment. Nothing in Cambrón allows the court to set aside the judgment and then proceed as if no judgment had ever been entered. Rather, Cambrón requires that the trial court re-enter the judgment at issue.

Decided October 28, 2011.

Paul V Balducci, for appellants.

Charles C. Mayers, for appellee.

Vangoosen v. Bohannon, 236 Ga. App. 361, 362 (1) (511 SE2d 925) (1999).

We expressly do not reach the merits of the motion to set aside the judgment of March 26, 2007. Nor do we reach the merits of the underlying judgment and the sanction of dismissal imposed by the trial court. We simply vacate the trial court’s ruling that it had no jurisdiction to consider appellants’ motion to set aside the judgment because of expiration of the term of court, and we remand the case to the trial court for further proceedings consistent with OCGA § 9-11-60 (g) and Cambrón.

Judgment vacated and case remanded.

Mikell and Dillard, JJ., concur.


author: Phipps, Presiding Judge.

text:
    A11A0901.
    A11A0902.
    MITCHELL v. THE STATE. DAWSON v. THE STATE.
    (718 SE2d 126)
   Phipps, Presiding Judge.

Tony Maurice Mitchell and David Dawson were tried together on charges of burglary (Count 1), criminal damage to property in the second degree (Count 2), theft by taking (Count 3), and misdemeanor obstruction of an officer (Count 4). Both men were acquitted of Count 2, but they were found guilty of the remaining charges. They appeal, contending that the evidence was insufficient to authorize the convictions for burglary and obstruction of an officer. Dawson additionally contends that he received ineffective assistance of trial counsel, and that the trial court erred by not inquiring into his counsel’s possible conflict of interest and by not instructing the jury on his sole defense. Because we find no merit in the assertions, we affirm the convictions.

1. Mitchell and Dawson were charged with burglary by unlawfully entering the dwelling house and building of another to commit a theft. They contend the evidence was insufficient to support their convictions for burglary because there was no showing that they entered any building. This argument is unavailing.

When reviewing a challenge to the sufficiency of the evidence used to support a conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

A conviction may be based on circumstantial evidence and “the proved facts need exclude only reasonable hypotheses — not bare possibilities that the crime could have been committed by someone else.” The applicable test is more fully set out in Wright v. State:

[T]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.

Viewed in the light most favorable to the verdicts, the evidence showed that at approximately 2:00 a.m., on February 7, 2010, a police officer was dispatched to investigate a report that two suspicious males were walking on a particular road. The officer, having arrived at the location shortly after receiving the call, spotted movement behind a nearby residence inside the doorway of a storage shed. He turned into the driveway. As he drove up to the residence, the officer saw Mitchell coming out of the doorway of the shed and Dawson coming from behind the residence. Mitchell and Dawson would later inform the officer that they had mistaken him (the officer) as somebody who had dropped them off “down the road” from the residence, and they walked toward the officer holding items they had removed from the property. As Mitchell and Dawson got closer to the marked police car, they began to walk away. Dawson discarded the items he held (a camera, a camera case, and a toolbox), and both he and Mitchell retreated to the back of the house, where Mitchell discarded the items he held (a garden hose and some toiletries). The officer chased Mitchell and Dawson on foot, simultaneously commanding that they stop, but they refused to stop. The chase eventually ended in the wood line of a nearby residence, where Mitchell and Dawson were apprehended.

The officer found the back door of the first residence open and the lock damaged. The padlocks were broken and the doors pried open on two sheds located on the property. A tire tool, consistent with pry marks found on the doors and frames, lay against a wall by a door.

The owner of the items recovered testified that the camera and case were kept in the house and that the toolbox was stored in one of the sheds. The owner of the items, having last been on the property the previous day, had secured the residence and sheds when he departed and had not given anyone permission to be on the property or to remove any of his belongings. The owner of the residence and sheds did not know Mitchell or Dawson and did not give either of them permission to be on the property or to take anything therefrom.

Although he did not appear to the officer on the scene to be suffering from any ailments, Dawson explained to the officer that he was at the residence because he was diabetic and was looking for water.

Mitchell and Dawson argue that the burglary convictions were based on circumstantial evidence and that the two suspicious individuals reportedly seen walking on a road near the crime scene could have entered or burglarized the residence and sheds. However, there was no evidence that the “suspicious individuals” were any persons other than Mitchell and Dawson. To the contrary, the appellants called a witness who testified that he had driven them to the area where the crime occurred, at about the time the crime occurred. He testified that Mitchell and Dawson exited the vehicle and walked down the roadway and that a light soon appeared in a nearby house. Whether the circumstances were sufficient to exclude every reasonable hypothesis save Mitchell’s and Dawson’s guilt was a question for the jury.

Mitchell and Dawson also contend that their possession of the items did not prove that they had entered the residence because a family member of the items’ owner could have left the camera, camera case, toolbox, and toiletries outside. But the reasonableness of that hypothesis was a question for the jury, especially in light of the surrounding circumstances and the testimony of the items’ owner to the contrary. The evidence here supports the verdict and the jury could reasonably have found that the circumstantial evidence excluded every reasonable hypothesis except that of Mitchell’s and Dawson’s guilt. Mitchell and Dawson lacked authority to enter the premises, and they fled when confronted by a police officer. “[Ejvidence that the appellants] [were] attempting to avoid police detection . . . during the commission of a crime, just like evidence of flight following a crime, is circumstantial evidence of consciousness of guilt.”

Although there was no direct evidence that Dawson personally entered the residence or sheds, the evidence that he was on the property carrying items taken from it and fled from the officer with Mitchell (who was seen coming out of the doorway of one of the sheds) authorized the jury to find beyond a reasonable doubt that Dawson participated in the burglary by actively aiding or abetting Mitchell in committing the crime.

2. Relying on Connelly v. State, Mitchell and Dawson contend the evidence was insufficient to support the convictions for misdemeanor obstruction of an officer because the police officer never “announced his identity, character or purpose as a peace officer as required by OCGA § 16-10-24 (a).”

Under OCGA § 16-10-24 (a), “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his duties is guilty of a misdemeanor.” Thus, as one of the essential elements of this misdemeanor offense, the state must show that the defendant committed the act knowingly and wilfully.

Mitchell’s and Dawson’s assertion that there was no evidence of a knowing and wilful obstruction is not supported by the record. Although the evidence at trial did not show that the officer orally identified himself as a police officer, the evidence did show that he was wearing a police uniform and was driving a clearly marked police vehicle. The record shows that when Mitchell and Dawson approached the marked police vehicle, they fled from the officer. The officer, who was investigating a suspicious persons report, commanded that they stop, but they refused. The evidence was sufficient for any rational trier of fact to find Mitchell and Dawson guilty beyond a reasonable doubt of misdemeanor obstruction of an officer.

Mitchell and Dawson’s reliance on Connelly is misplaced for two reasons. First, Connelly is not binding authority. Second, Connelly is factually distinguishable. In that case the court reversed a conviction for obstruction of a law enforcement officer, holding that “although [the defendant] did not have a right to flee that encounter [with a police officer], he [defendant] did not drive away until after the encounter apparently had ended. ’ ’ There is no evidence in this case, nor do Mitchell and Dawson contend, that the encounter with the police officer had ended, thus justifying their flight from the officer.

3. Dawson contends his trial counsel was ineffective because counsel’s representation of both Mitchell and Dawson constituted an “inherent conflict of interest” for which counsel failed to obtain either a written or recorded waiver prior to trial. It is true that Mitchell and Dawson were represented by the same attorney at trial.

A defendant who raised no objection at trial (as is true in this case) must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. Until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. Where the contention is only the possibility of conflict, this is insufficient to impugn a criminal conviction.

At the hearing on the motion for new trial, appellate counsel ultimately conceded that there was no actual conflict, but maintained that a conflict regarding the duty of loyalty could have existed. That is not sufficient.

The trial court asked Dawson whether he knew “something about Mr. Mitchell’s case that you told [trial counsel] . . . that was bad about Mr. Mitchell,” and Dawson answered, “[N]o, sir.” The court then asked Dawson whether he thought Mitchell told trial counsel anything bad about Dawson. Dawson answered, “[N]o, sir, I don’t think he did this because I know he didn’t.” Regarding his involvement with Mitchell, Dawson described that they were “buddies walking up the dirt road.” According to Dawson, there was no finger-pointing between himself and Mitchell because neither of them did anything wrong. Trial counsel testified that she did not feel there was a conflict between Mitchell and Dawson and that she apprised Mitchell and Dawson prior to trial, individually, at least three times, that if they felt a conflict existed, they needed to inform her, but they never did. Counsel testified that she had received no statements from either defendant that could have been used against the other. “Counsel therefore did not slight the defense of one defendant for another.”

Dawson also contends that a conflict of interest is evidenced by his trial counsel not requesting a jury charge of criminal trespass as a lesser included offense of burglary. But Dawson has failed to show how trial counsel’s decision to not request a criminal trespass charge as a lesser included offense of burglary demonstrates that counsel slighted the defense of one defendant for another or that counsel actively represented conflicting interests by representing both defendants at trial.

As there is no evidence that his trial “counsel actively represented conflicting interests, [Dawson] has not established the constitutional predicate for his claim of ineffective assistance [of counsel].” Moreover, assuming, arguendo, that counsel erred in failing to obtain a written or recorded waiver regarding the potential conflict, because Dawson cannot show that counsel’s representation of him was adversely affected by the joint representation, his claim of ineffective assistance is without merit.

4. Dawson contends the trial court erred by not inquiring prior to trial into any possible conflict of interest when one attorney represented both him and Mitchell.

A trial court certainly bears a duty to inquire into a potential conflict of interest whenever the trial court is aware of circumstances creating more than a vague, unspecified possibility of conflict. However, the [United States] Supreme Court has held that a trial court’s failure to inquire into the circumstances of a potential conflict does not relieve a prisoner of his or her duty to show on appeal that, in fact, a conflict existed that adversely affected his or her counsel’s performance.

As discussed in Division 3, Dawson has not shown that, in fact, a conflict existed that adversely affected his counsel’s performance.

5. Dawson contends the trial court erred in not charging the jury on criminal trespass as a lesser included offense of burglary, even though he did not request such a charge, because it was his sole defense. Dawson is correct that the trial court did not charge on criminal trespass as a lesser included offense of burglary; but he is incorrect in contending it was his sole defense.

“The trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge.” But criminal trespass was not Dawson’s sole defense. At the motion for new trial hearing, trial counsel testified that she did not request a criminal trespass charge as a lesser included offense of burglary because “it was all or nothing because to me burglary was entry with the intent to commit a theft or crime therein without permission . . . [a]nd my whole thing was to argue to the jury that . . . there was no entry.” In fact,

Decided October 28, 2011.

Steven A. Miller, for appellant (case no. A11A0901).

Stearns-Montgomery & Proctor, Lance D. Dutton, for appellant (case no. A11A0902).

Leigh E. Patterson, District Attorney, Finnis K. Salmon, Assistant District Attorney, for appellee.

where the defendant has denied entering the burglarized premises, we have held that trespass instructions are not appropriate. . . . The jury has the choice either to convict the defendant of burglary if it believed the State’s evidence or to acquit the defendant if the State did not meet its burden; however, the jury will not be permitted the compromise choice of disbelieving the defendant and returning a verdict of guilty on the lesser offense of criminal trespass, differing from burglary only in criminal intent.

Accordingly, the trial court did not err in failing to give a jury charge on criminal trespass, sua sponte.

Judgments affirmed.

Andrews and McFadden, JJ., concur.

       OCGA § 16-7-1 (a) provides: “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building . . . .” See Mezick v. State, 291 Ga. App. 257, 259 (2) (661 SE2d 635) (2008) (a shed used to store, shelter, and safeguard goods was a building for purposes of OCGA § 16-7-1 (a)).

       In his appellate brief, Dawson expressly adopted Mitchell’s argument as to this claim of error.

        Arroyo v. State, 309 Ga. App. 494 (711 SE2d 60) (2011).

       Id., citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

         Wilcox v. State, 310 Ga. App. 382, 384 (713 SE2d 468) (2011) (punctuation omitted).

       302 Ga. App. 332 (690 SE2d 654) (2010).

         Id. at 333 (citations and punctuation omitted).

       The owner testified that he had owned the camera and case for two or three years and had paid between $400 and $500 for them.

       The owner testified that the value of the toolbox was $100 and that inside of it, he kept “computer-related” items which he used in his computer business.

        Wilson v. State, 230 Ga. App. 271, 273 (2) (495 SE2d 894) (1998).

       See Wilcox, supra.

       Id.; Wilson, supra; Johnson v. State, 275 Ga. App. 21, 21-23 (619 SE2d 731) (2005) (evidence was sufficient for burglary conviction, where the defendant was seen in the broken doorway of the house, there were pry marks around thp door, and the door was off its hinges); Wallis v. State, 170 Ga. App. 354 (317 SE2d 331) (1984) (evidence was sufficient for burglary conviction, where defendant was seen on the steps to the front door of the burglary victim’s house and on same date pawned property stolen from that house); Daniel v. State, 48 Ga. App. 789 (173 SE 485) (1934) (evidence was sufficient for burglary conviction, where defendant was seen coming out of the back door of the house about 5:00 a.m., a window and refrigerator door had been opened, and defendant was apprehended moments later running a few blocks from the scene).

        Gill v. State, 229 Ga. App. 462, 463-464 (2) (494 SE2d 259) (1997).

       See OCGA § 16-2-20 (defining party to a crime); Green v. State, 301 Ga. App. 866, 868 (1) (a) (689 SE2d 132) (2010).

       298 Ga. App. 223 (679 SE2d 790) (2009) (physical precedent only).

       In his appellate brief, Dawson expressly adopted Mitchell’s argument as to this claim of error.

        Reddick v. State, 298 Ga. App. 155, 156 (1) (679 SE2d 380) (2009).

       See id.

        Dukes v. State, 275 Ga. App. 442, 443 (1) (622 SE2d 587) (2005) (flight from an officer after being ordered to halt was misdemeanor obstruction of an officer where police vehicle was unmarked but one officer identified himself as a police officer despite defendant’s claim that he did not see any police vests).

        Reddick, supra at 156-157 (1).

       Supra.

       Court of Appeals Rule 33 (a) (if there is a concurrence in judgment only without a statement of agreement with all that is said in the opinion, the opinion is physical precedent only).

       Id. at 225 (footnote omitted).

         Garvin v. State, 283 Ga. App. 242, 244 (3) (a) (641 SE2d 176) (2006) (citations and punctuation omitted).

       Id.

       See Burns v. State, 281 Ga. 338, 340-341 (638 SE2d 299) (2006).

        Garvin, supra at 244-245 (3) (a) (citation and punctuation omitted).

       Id. at 244 (3) (a) (citation omitted).

        Woods v. State, 275 Ga. 844, 845 (2) (573 SE2d 394) (2002) (Even “lajssuming, arguendo, that the written waiver of conflict appellant executed was legally insufficient, we find no merit in appellant’s contention that he has shown he was adversely affected by the conflict created by trial counsel’s joint representation here.”).

        Whatley v. Terry, 284 Ga. 555, 564 (IV) (668 SE2d 651) (2008) (punctuation and footnotes omitted).

        Price v. State, 289 Ga. 459 (2) (712 SE2d 828) (2011) (citation and punctuation omitted).

        Skaggs-Ferrell v. State, 266 Ga. App. 248, 250-251 (3) (596 SE2d 743) (2004) (citation and punctuation omitted).

       Id.


text:
    A11A1188.
    MORMAN-JOHNSON v. HATHAWAY et al.
    (718 SE2d 132)
   Smith, Presiding Judge.

Appearing pro se, Angela Morman-Johnson appeals from a judgment entered on a jury verdict in favor of Gary Hathaway and Summit Surgical Specialists on her claims for medical negligence and medical battery stemming from Hathaway’s removal of Morman-Johnson’s abdominal mass. She asserts several errors on appeal, most with regard to the court’s instructions to the jury. We conclude that these claims are without merit and affirm.

We first note that Morman-Johnson’s brief on appeal fails to comply with the rules of this court. See Court of Appeals Rule 25. Morman-Johnson lists several enumerations but fails to demonstrate the manner in which each claim of error was preserved. See Court of Appeals Rule 25 (a) (1). Morman-Johnson also fails to support each claim of error with argument or citation to authority, providing one case citation in her entire brief. See Court of Appeals Rule 25 (a) (3).

Briefs that do not conform to the rules regarding enumerations of error, structure of briefs, argument, or citation of authorities, as [appellant’s] fails to do, are not merely an inconvenience or grounds for refusing to consider a party’s contentions. Such briefs hinder this court in determining the substance and basis of an appellant’s contentions both in fact and in law and may well prejudice an appellant’s appeal regardless of the amount of leniency shown. Nevertheless, we will address [appellant’s] arguments, insofar as we are able to ascertain them from [her] brief.

Salazar v. State, 256 Ga. App. 50 (567 SE2d 706) (2002).

1. In her first enumeration, Morman-Johnson appears to argue that trial counsel should have attempted to present as evidence a “medical chart with over 500 pages.” But “[i]t is well established that this [c]ourt may not address issues on appeal which were not addressed by the trial court, because this [c]ourt is a court for the correction of errors and it does not consider matters which were not raised and ruled on by the trial court.” (Citations, punctuation and footnotes omitted.) Madison Retail Suwanee v. Orion Enterprises &c., 309 Ga. App. 712, 717 (4) (711 SE2d 71) (2011). In the absence of a ruling by the trial court on this issue, there is nothing for this court to review. See id.

2. In her second through eighth enumerations, Morman-Johnson takes issue with the trial court’s recharge to the jury on the standard of care for physicians. Following the court’s charge to the jury, counsel for the defendants pointed out to the court that it omitted a portion of the intended charge. Specifically, the court omitted the following from the original charge: “the fact that another physician would have personally treated the patient differently in part, does not raise a presumption of a want of care, skill or diligence on the part of the physician.” The trial court agreed to recharge the jury with the complete instruction. Morman-Johnson’s counsel complained that a recharge would overemphasize the charge. The court disagreed and recharged the entire instruction on the standard of care for physicians. The court then asked both counsel if there were any exceptions to the recharge, and both responded that they had none.

Trial counsel’s failure to except after the giving of the recharge results in waiver of the issue on appeal. See Johnson v. State, 296 Ga. App. 684, 686 (6) (675 SE2d 556) (2009) (failure to object after recharge results in waiver of the issue on appeal). But even if we consider counsel’s complaint prior to the recharge to be a proper objection, we cannot say that the recharge was harmful as a matter of law because we have approved similar language on the physician’s standard of care. See Kent v. Henson, 174 Ga. App. 400, 401 (1) (330 SE2d 126) (1985); see also OCGA § 5-5-24 (c). Moreover,

[i]t is well established that when the jury, after having received complete instructions on the law applicable to the case, returns to the courtroom and requests additional instruction on a particular point, the trial court may, in its discretion, either recharge the jury in full or confine the instruction to the particular point suggested by the jury’s inquiry.

(Citation and punctuation omitted.) Chung v. State, 240 Ga. App. 394, 397 (4) (523 SE2d 615) (1999).

3. In her ninth enumeration, Morman-Johnson argues that the jury’s question during deliberations concerning the meaning of “reasonable level of care or skill under similar circumstance and like condition,” shows that the jury was confused and that the overall charge was too complicated. But Morman-Johnson is only speculating that the jury was confused and does not point to any error committed by the trial court on this issue for us to review.

4. In her tenth enumeration of error, Morman-Johnson argues that the trial court should have given the jury another day to deliberate rather than giving the Allen charge after the jury indicated that it was deadlocked. But her counsel stated that he had no exception to the Allen charge. “The decision to give an Allen charge is within the trial court’s discretion. The issue in reviewing an Allen charge is whether the instruction is coercive so as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.” (Citations, punctuation and footnotes omitted.) Milligan v. State, 307 Ga. App. 1, 4 (4) (b) (703 SE2d 1) (2010); see Ga. Communications Corp. v. Horne, 174 Ga. App. 69, 70 (4) (329 SE2d 192) (1985).

Here we cannot say that the Allen charge was unwarranted where the jury, on the first day of deliberation, sent a note to the court indicating that it was deadlocked 11-1 and asking to have a juror removed. See Ga. Communications Corp., supra, 174 Ga. App. at 70 (4). Morman-Johnson has failed to demonstrate abuse of the court’s discretion here.

Decided October 28, 2011

Angela Morman-Johnson, pro se.

Carlock, Copeland & Stair, Dennis G. Lovell, Jr., Vera M. Stock, for appellees.

5. In her eleventh enumeration, Morman-Johnson claims that there were fewer jurors at the end of trial. She appears to assume that because the jury requested that a juror be removed, the court granted the request. But the record reveals that the trial court denied the request and all of the jurors were present when the verdict was returned. Morman-Johnson has failed to show that a juror was removed.

6. During trial, counsel for the defendants asked Morman-Johnson if she had ever filed a lawsuit. Morman-Johnson responded that she had. In her twelfth enumeration, she complains that this gave the court the impression that she had sued a doctor before and that counsel for the defendants knew that one of the jurors “was prejudice [sic] against people suing other people.” She complains that Hathaway was not asked a similar question. As explained in Division 1, however, the trial court did not address these issues, and without a ruling on them, there is nothing for this court to review. Madison Retail Suwanee, supra, 309 Ga. App. at 717 (4).

Judgment affirmed.

Mikell and Dillard, JJ., concur.


author: Blackwell, Judge. BARNES, Presiding Judge,

text:
    A11A0793.
    RAINES et al. v. MAUGHAN et al.
    (718 SE2d 135)
   Blackwell, Judge.

After her son was murdered during an apparent robbery in the parking lot of the Venetian Hills apartment complex in Atlanta, Carrie Raines brought this wrongful death action against John Maughan, the owner of the complex, alleging that Maughan breached a duty to keep the premises safe. The case was tried by a Fulton County jury, which returned a verdict for Maughan, and Raines now appeals. Raines contends that the trial court erred when it failed to excuse a prospective juror for cause, refused to admit certain evidence, charged the jury to apportion any damages under OCGA § 51-12-33, and refused to give two instructions that Raines requested. We see no reversible error and affirm.

1. We first consider the claim that the trial court should have excused a prospective juror for cause. The prospective juror in question, a nephrologist, was asked in voir dire about his views on tort reform, and he responded that he thought negligence should be proven clearly and damages in negligence cases ought to be capped. But when he was asked whether he would follow the instructions of the court, even to the extent that they might differ from his own view of how negligence cases should be tried, the nephrologist said that he “absolutely” would do so. Raines later moved the court to excuse the nephrologist for cause, arguing that the nephrologist could not be believed when he said that he would follow the instructions of the court. The nephrologist was not worthy of belief, Raines said, because he failed to disclose on his written juror questionnaire that he was a physician and failed to raise his hand in response to a preliminary question about tort reform that Raines put to the whole panel. The trial court refused to excuse the nephrologist for cause, and Raines eventually used a peremptory strike to excuse him.

Whether to excuse a prospective juror for cause is committed to the sound discretion of the trial court, Pinckney v. State, 285 Ga. 458, 460 (3) (678 SE2d 480) (2009), and we see no abuse of that discretion here. In the first place, no written juror questionnaire appears in the record, so we do not know whether the nephrologist failed to disclose his profession on the questionnaire, but the record does show that he identified himself as a physician when the whole panel was asked in preliminary questioning whether any physicians were among the prospective jurors. And about the contention that the nephrologist was not forthcoming during the preliminary questioning about his views on tort reform, we note that Raines asked the panel first whether any prospective juror “believe[s] there is something wrong with our civil justice system that needs to be fixed through tort reform,” and then, before all of the prospective jurors responded, asked a different question, whether any prospective juror “doesn’t believe we need reform.” We cannot say that the failure of the nephrologist to volunteer at that point that he had a view on tort reform is any more suggestive of dishonesty than confusion in response to these contradictory questions. In any event, we have said before that

[a] trial judge is uniquely positioned to evaluate whether a prospective juror can render an impartial verdict, considering that the trial judge, unlike appellate judges, can observe a prospective juror in person and take account of [his] demeanor and countenance, not just the words that [he] speaks.

Harrison v. State, 309 Ga. App. 454, 454 (1) (711 SE2d 35) (2011). We have no reason in this case to question the determination of the trial judge that the nephrologist was credible when he promised to follow the instructions of the court, and the claim that the trial court abused its discretion when it failed to excuse him for cause is without merit.

2. We turn next to the claims that the trial court erred when it refused to admit certain evidence. “Whether to admit evidence is a matter resting in the trial court’s sound discretion,” and we will reverse a decision admitting or refusing to admit evidence only upon a showing that the trial court has abused its discretion. Boring v. State, 289 Ga. 429, 433 (2) (711 SE2d 634) (2011) (citation and punctuation omitted); see also Hankla v. Jackson, 305 Ga. App. 391, 392 (1) (699 SE2d 610) (2010). We see no abuse of discretion here.

(a) Raines complains that the trial court should have admitted evidence of a carjacking that occurred on a street that runs, Raines says, near the Venetian Hills complex. Maughan owed a duty to make reasonable efforts to protect Raines’s son against the criminal acts of a third party only to the extent that those criminal acts were foreseeable, see Vega v. La Movida, Inc., 294 Ga. App. 311, 312 (1) (a) (670 SE2d 116) (2008), so Raines had to prove at trial that the murder of her son was foreseeable. One way of proving that a crime is foreseeable is by proof that substantially similar crimes previously had been committed at or around the same location. See Sturbridge Partners v. Walker, 267 Ga. 785, 786 (482 SE2d 339) (1997); see also Wal-Mart Stores, Inc. v. Lee, 290 Ga. App. 541, 547 (3) (a) (659 SE2d 905) (2008). The carjacking was a substantially similar crime, Raines says, and she claims that the refusal of the trial court to admit evidence of the carjacking was an abuse of its discretion. We disagree.

When a court considers whether criminal acts are substantially similar for the purpose of assessing foreseeability in a premises liability case, “the court must inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question.” Sturbridge Partners, 267 Ga. at 786 (citations omitted). Although the criminal acts need not be identical, they must be similar enough that knowledge of the first would have drawn the attention of the landowner to the dangerous condition that ultimately led to the criminal act that forms the basis for the premises liability claim. See id. Raines sought in this case to admit evidence of a carjacking that involved a car driving on a public street, an unknown distance from the Venetian Hills complex. This car was rammed by a second car, from which a passenger alighted with a gun, put the gun in the face of the woman driving the first car, and forced her from the first car. The gunman then drove away with the first car. Although the carjacking and the murder of Raines’s son are similar in some respects, there are important differences too, especially that the carjacking occurred on a public street and in a location of unknown proximity to the Venetian Hills complex. In light of these differences, we cannot say that the trial court abused its discretion when it refused to admit evidence of the carjacking. See Vega, 294 Ga. App. at 314 (1) (a) (“[Gjenerally, it may be said that it is not permissible, for the purpose of establishing whether a condition at one place is dangerous, to show conditions at places other than the one in question.”) (citation and punctuation omitted); see also McCoy v. Gay, 165 Ga. App. 590, 592 (302 SE2d 130) (1983) (robberies that occurred near hotel building were not substantially similar to robbery in hotel parking lot).

(b) Raines also contends that the trial court should have permitted her expert on security practices to testify about the content of certain service call lists, on which the expert had relied in forming his opinions about the adequacy of security at the Venetian Hills complex. According to the record, these service call lists reflect all requests for police officers to respond to the Venetian Hills complex and other locations within one mile of the complex in the five years preceding the murder of Raines’s son and show more than 5,800 requests for police assistance. With respect to requests originating in the complex itself, the lists include a unique incident number for each request, a numeric code indicating the nature of each request, and the date and location of each request. For requests originating outside the complex, the lists include an incident number, beat number, street address, and general description for each request and, confusingly enough, multiple dates and times and an unidentified code for each request. Although the trial court allowed that the expert properly could base his opinions on these lists, the court refused to admit the lists themselves or testimony about their content, noting that the lists contain multiple layers of hearsay, references to incidents of questionable or no relevance, and numerous unexplained codes and data.

An expert properly may base his opinion on inadmissible facts and data, so long as those facts and data are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” See OCGA § 24-9-67.1 (a); see also Roebuck v. State, 277 Ga. 200, 202 (1) (586 SE2d 651) (2003). But the inadmissible facts and data upon which an expert relies are not rendered admissible simply because an expert has relied upon them. To the contrary, such facts and data remain inadmissible “unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.” OCGA § 24-9-67.1 (a). The trial court in this case weighed the probative value of the content of the service call lists and their prejudicial effect, and we cannot say that its determination that the service call lists should not be admitted was an abuse of discretion. Raines has made no showing that the circumstances of the various incidents reflected on the lists are substantially similar to the murder of her son, such that they would bear directly upon the question of foreseeability. See Grandma’s Biscuits, Inc. v. Baisden, 192 Ga. App. 816, 817-818 (1) (386 SE2d 415) (1989) (prior crimes on premises that were included on police computer printout not shown to be substantially similar to crime at issue). Moreover, the lists are confusing, and substantial explanation would have been required for the jury to understand them. These reasons are enough to warrant the exclusion of the content of the service call lists.

(c) Finally, Raines argues that the trial court should have permitted her expert at trial to opine that the murder of her son was foreseeable and that security deficiencies at the complex were the proximate cause of his death. We have explained before that “[ejxpert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves,” or, put another way, where “the conclusion is beyond the ken of the average layman.” Carlock v. Kmart Corp., 227 Ga. App. 356, 361 (3) (b) (489 SE2d 99) (1997) (citations and punctuation omitted); see also Thurman v. Applebrook Country Dayschool, Inc., 278 Ga. 784, 787 (2) (604 SE2d 832) (2004). But “where the path from evidence to conclusion is not shrouded in the mystery of professional skill or knowledge, and . . . the conclusion determines the ultimate issues of fact in a case, the jury must make the journey from evidence to conclusion without the aid of expert testimony.” Carlock, 227 Ga. App. at 361 (3) (b). In other words, an expert cannot opine on the ultimate issue when the jury could reach the same conclusion on its own. See id.

In Carlock, a woman was killed in an attempted robbery in the parking lot of a shopping center, and her husband sued several businesses located in the shopping center, alleging that they failed to keep the premises safe. This Court affirmed the refusal of the trial court to admit expert testimony that the attempted robbery and murder were foreseeable. See id. at 356. We agreed that expert testimony was not necessary for the jury to assess foreseeability in those circumstances. Id. at 362 (3) (b). This case is similar to Carlock, and we think that the jury in this case, having heard evidence of numerous prior criminal acts that occurred in or around the complex, was capable of deciding the question of foreseeability without expert testimony on the ultimate issue. At the least, it was within the discretion of the trial court to determine that no expert testimony on the question of foreseeability was required.

Raines also claims that her expert should have been permitted at trial to opine that security deficiencies at the complex were a proximate cause of the death of her son, but she cites no authority in support of this contention. Her expert was allowed to opine that the security measures at the complex were inadequate and deficient. With this testimony, the jury was quite capable of deciding whether the deficiencies were a proximate cause of the death of Raines’s son, or at least the trial court was entitled to so determine. The trial court did not abuse its discretion when it refused to admit expert opinions about foreseeability and proximate cause.

3. We next consider the claim that the trial court erred when it instructed the jury that, if it concluded Maughan was liable for the death of Raines’s son, it should consider whether to apportion its damages award between Maughan and the unknown individuals who murdered Raines’s son. To demonstrate reversible error, Raines must show both that the trial court erred and that the error was harmful. Kersey v. Williamson, 284 Ga. 660, 663 (3) (670 SE2d 405) (2008); Clark v. Stafford, 239 Ga. App. 69, 74 (3) (522 SE2d 6) (1999). The jury in this case returned a verdict for Maughan, and there was no occasion for the jury to apportion damages. For this reason, any error in charging the jury about apportionment had no effect on the outcome of the trial and could not have harmed Raines, and we need not consider, therefore, whether instructing the jury on apportionment in this case actually was error.

Decided November 1, 2011

D. Richard Jones III, Julie A. Dlott, for appellants.

Gray, Rust, St. Amand, Moffett & Brieske, Matthew G. Moffett, Wayne S. Melnick, for appellees.

4. We turn last to the contention that the trial court erred when it refused to give two jury charges that Raines requested, one on substantial similarity, the other on foreseeability We note that the trial court charged the jury on both of these principles, and although Raines says that the refused charges about which she complains are not duplicative of the charges actually given, she does not identify any differences between the charges refused and those given or explain the significance of any such differences. Indeed, her entire argument on these jury charges consists of one sentence in her briefs: “Both charges [refused by the trial court] are accurate statements of Georgia law[ ], are not duplicative, and are adjusted to the facts of this case.” Our rules warn that “[a]ny enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned,” Court of Appeals Rule 25 (c) (2), and we conclude that Raines has abandoned her claim that the trial court erred when it refused these jury instructions.

Judgment affirmed.

Adams, J., concurs. Barnes, P. J., concurs specially.

BARNES, Presiding Judge,

concurring specially.

While I agree with the result reached in this case, I do not agree with all that is said. Therefore, this opinion decides only the issues in this case and may not be cited as binding precedent.

       Raines filed this lawsuit on behalf of both herself and the estate of her son, and she sued Maughan both individually and as the proprietor of the Venetian Hills complex. For the purposes of this appeal, we will refer to the plaintiffs — both Raines and the estate of her son — as “Raines.” And we will refer to the defendants — both Maughan individually and the sole proprietorship through which he operated the complex — as “Maughan.”

       The record does not reflect the distance between the Venetian Hills complex and the location of the carjacking, but Maughan tendered an affidavit on the question of distance, in which he averred that the street on which the carjacking occurred is not adjacent to the complex and, in fact, is not “near” the complex.

       We also note that Raines was permitted to present evidence of several specific criminal acts that occurred in and around the complex prior to the murder of her son.

       Raines relies on our decision in Brookview Holdings v. Suarez, 285 Ga. App. 90 (645 SE2d 559) (2007), but we think her reliance is misplaced. Brookview Holdings is a summary judgment case, and it did not address or decide whether expert testimony on the issue of foreseeability could be admitted at trial. 285 Ga. App. at 95-97 (2).

       In Pacheco v. Regal Cinemas, 311 Ga. App. 224, 228 (2) (b) (715 SE2d 728) (2011) (physical precedent only for Division (2) (b)), a panel of this Court addressed similar claims of error concerning a jury instruction on apportionment in a case in which a defense verdict was returned. There, we found no error.

       “Judgment as Precedent. If an appeal is decided by a Division, a judgment in which all three judges fully concur is a binding precedent; provided, however, an opinion is physical precedent only with respect to any Division of the opinion for which there is a concurrence in the judgment only or a special concurrence without a statement of agreement with all that is said. ...”