text:
    A11A0168.
    RUSSELL v. THE STATE.
    (707 SE2d 543)
   Blackwell, Judge.

Eric T. Russell was tried by jury and convicted of several counts of selling and possessing cocaine in violation of OCGA § 16-13-30. He now appeals, asserting that the trial court erred when it denied his motion for a mistrial. We see no error and affirm.

Viewed in the light most favorable to the verdict, the record shows that in 2003, the Georgia Bureau of Investigation was investigating the unlawful distribution of controlled substances in Barrow County. In the course of this investigation, undercover GBI agents purchased controlled substances from local street dealers in Statham on several occasions. The agents made audio and video recordings of each transaction. As a part of this investigation, different teams of agents purchased cocaine from Russell in two, separate transactions on February 22, 2003. The agents made video recordings of both transactions, and these recordings were shown to the jury at trial. Three of the four agents who participated in these transactions testified at trial, and each identified Russell as the man who sold them cocaine on February 22.

Russell testified at trial, where he admitted that he is the man depicted in the video recordings of the February 22 transactions. Russell claimed, however, that he participated in these transactions in his capacity as an informant for the Statham Police Department. To corroborate this claim, Russell called former Statham Chief of Police Brian McCowan as a witness at trial. McCowan confirmed that, after Russell was arrested in early 2003 on traffic charges, Russell entered into an agreement with the police department, whereby he agreed to supply information to police about the involvement of two specific individuals in the drug trade. McCowan explained, however, that Russell was not authorized by the agreement to actually participate in the distribution of controlled substances and that the police merely expected Russell to provide information.

On cross-examination, the prosecutor elicited testimony from McCowan about the assistance that he rendered to the GBI in its Barrow County investigation. After GBI agents made undercover purchases of controlled substances, they would show video recordings of the transactions to local law enforcement officials, who would help the agents identify the dealers depicted in the recordings. McCowan explained that he was shown a video recording of one of the February 22 transactions involving Russell, that he immediately recognized Russell as the dealer, and that he identified Russell for the agents. The prosecutor then asked McCowan whether he also “pulled a photo” of Russell for the agents. McCowan responded: “Yes, ma’am. I believe it was off the pardons and paroles website.”

Russell’s lawyer immediately moved for a mistrial on the grounds that McCowan’s answer was an improper comment on Russell’s character. Recognizing correctly that the prosecution had not asked McCowan about the source of any photographs and that McCowan’s answer was not responsive, the trial court denied the motion for mistrial. The trial court instead gave the following curative instruction:

Ladies and gentleman, the witness has made a statement which was not responsive to a question asked by the attorney. I’m going to instruct you to disregard it in all respects. Do not consider it in any form or manner as evidence in this case. It is stricken from consideration in this case.

The jury returned a verdict of guilty, and Russell timely filed a motion for new trial. About five years later, the trial court denied the motion for new trial, entering an order denying the motion on August 3, 2010. This appeal followed.

In his sole enumeration of error, Russell contends that the trial court erred when it denied his motion for mistrial. It is well-settled that evidence of the character of the accused, “including evidence which in any manner shows or tends to show that the accused has committed other criminal acts,” usually is inadmissible. Crane v. State, 294 Ga. App. 321, 325 (2) (670 SE2d 123) (2008). See also OCGA § 24-2-2. The State does not dispute that the reference to Russell’s photograph being pulled from the website of the State Board of Pardons and Paroles was improper, and we agree with Russell that it was. Although this reference did not identify any specific crime of which Russell had been convicted, it did suggest, at the least, that Russell had been convicted of some crime.

Nevertheless, a mistrial is not always required when testimony improperly touches upon the character of the accused, especially when the testimony is not purposefully elicited by the State. See Shelnutt v. State, 255 Ga. App. 157, 158 (1) (a) (564 SE2d 774) (2002) (a “voluntary remark . . . not invited by court or counsel” does not necessarily require a mistrial); see also Mister v. State, 286 Ga. 303, 306 (3) (687 SE2d 471) (2009); Carr v. State, 282 Ga. 698, 701-702 (3) (653 SE2d 472) (2007); Mathis v. State, 299 Ga. App. 831, 835 (1) (c) (i) (684 SE2d 6) (2009). Instead, as our Supreme Court has explained, “[w]hen prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant’s right to a fair trial.” Agee v. State, 279 Ga. 774, 777 (4) (621 SE2d 434) (2005). The trial courts are vested with considerable discretion to determine whether a mistrial is, in fact, essential to preserve the right to a fair trial or whether some other remedial measure is sufficient. See id. We review the denial of a motion for mistrial for abuse of discretion, considering all the relevant circumstances, “including the nature of the statement [that reflects badly on the character of the accused], the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.” Id. We do not think that the trial court abused its considerable discretion in this case.

As noted above, McCowan was called as a witness by Russell, not the State, McCowan’s answer was not purposefully elicited by the prosecutor, and although his answer implied some prior conviction, it did not identify any specific crime of which Russell had been convicted. Moreover, the trial court immediately gave a curative instruction, in which the trial court told the jury to “disregard” the answer “in all respects” and not to consider it “in any form or manner.” In these circumstances, we think that the curative instruction was sufficient to remedy any prejudice arising from McCowan’s answer. See Dukes v. State, 273 Ga. 890, 892-893 (3) (b) (548 SE2d 328) (2001) (prompt curative instruction was sufficient to remedy prejudice from unsolicited testimony that defendant had been incarcerated for 22 years); see also Sims v. State, 268 Ga. 381, 382 (2) (489 SE2d 809) (1997) (prompt curative instruction sufficient to remedy prejudice from unsolicited testimony suggesting that defendant was on probation).

Moreover, we note that the evidence of guilt in this case is overwhelming, such that the comment that prompted the motion for mistrial likely did not affect the outcome of the trial. The evidence includes recordings of Russell selling cocaine to GBI agents, the testimony of three GBI agents identifying Russell as the man who sold them cocaine, and Russell’s own admissions that he is the man depicted in the recordings and that he, in fact, sold cocaine to the agents. Although Russell claimed at trial that he was acting pursuant to an agreement with other law enforcement officials, McCowan disputed this claim. And the written agreement between Russell and the Statham Police Department, which was admitted at trial as an exhibit, cannot reasonably be construed to authorize Russell to sell cocaine on the streets of Statham. The overwhelming evidence of guilt confirms our conclusion that the denial of the motion for a mistrial was no abuse of discretion. See Morgan u. State, 303 Ga. App. 358, 362 (2) (693 SE2d 504) (2010) (affirming denial of motion for mistrial where evidence of guilt was overwhelming, notwithstanding that witness twice referred to fact that defendant had served time in prison). See also Young v. State, 297 Ga. App. 248, 250 (676 SE2d 854) (2009) (denial of motion for mistrial was no abuse of discretion where prompt curative instruction was given and “the other evidence in the case was substantial and very damning”); Sorrells v. State, 267 Ga. 236, 239-240 (5) (476 SE2d 571) (1996) (allowing testimony that defendant “had been ‘in jail in Alabama’ ” was harmless error, given overwhelming evidence of guilt).

Decided March 9, 2011.

Mary Erickson, for appellant.

J. Bradley Smith, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

Finding no abuse of the considerable discretion vested in the trial court, we affirm.

Judgment affirmed.

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

       For sentencing purposes, the trial court merged the sale counts with the possession counts.

        Cutrer v. State, 287 Ga. 272, 274 (695 SE2d 597) (2010).

       The agreement required Russell to provide any such information before March 3, 2003, when he was required to appear in court on the traffic violations. If Russell provided such information, the police department agreed to recommend the dismissal of the traffic charges. Russell ultimately provided no information pursuant to this agreement.

       The record does not reflect whether any lawyer reminded McCowan before he testified that his testimony should not touch upon Russell’s criminal history. But if anyone had an obligation to do so, it was the defense lawyer who called McCowan as a witness, not the prosecutor. Although it is not dispositive, and although we do not give it substantial weight, we think the identity of the party that called McCowan as a witness is a relevant circumstance for the purposes of our inquiry.


source: Caselaw Access Project

author: Blackwell, Judge.

license: Public Domain

text:
    A11A0207.
    THOMAS v. THE STATE.
    (707 SE2d 547)
   Blackwell, Judge.

The record in this case clearly shows that Otis Patrick Thomas, an automotive mechanic in Dougherty County, did not apply best business practices in the operation of his automotive repair business, did not keep the promises that he made to a customer, and may have lied in civil proceedings commenced by that customer. But the question presented here is whether the State offered sufficient evidence at his criminal trial from which a rational trier of fact might conclude beyond a reasonable doubt that Thomas converted a van, which he had promised to repair but apparently never did, in violation of OCGA § 16-8-4 (a). We think the State did not offer sufficient evidence, and we reverse Thomas’s conviction for theft by conversion.

Viewed in the light most favorable to the verdict, the record shows that the customer paid $1,675 to Thomas for the replacement of the engine in her van. Thomas initially promised the customer that the work would be complete by February 8, 2007, but Thomas later told her that the work would not be complete until February 16. On February 16, Thomas again contacted the customer and told her that the work would not be done until February 20, ostensibly because the crew that helped Thomas with his repair work had quit. The customer then informed Thomas that she was renting another vehicle to drive while Thomas was repairing her van, and Thomas told her that he would reimburse the costs of the rental car.

On March 5, the customer called Thomas several times to inquire about her van, but Thomas did not return these calls until March 12, at which time he told her that he was exhausted and would not be done with the work on the van until the following day. On March 13, Thomas went to the customer’s residence and showed her a video recording of her van. According to the customer, Thomas attempted to explain all of the work that was required to replace the engine in the van, but she did not understand what he was saying. Thomas told her that he could finish the work by the next day.

When the customer did not hear from Thomas on March 14, she went to the shop at which he worked and saw her van “raised very high on the rack,” although Thomas was working at the time on another vehicle. On March 17, the customer and a companion went to the shop, where they confronted Thomas about the van. Her companion told Thomas that he must finish his work on the van before March 23, and Thomas assured them that he would do so “long before” that date. The customer admitted that Thomas had done at least some work on her van by the time they visited the shop on March 17, inasmuch as she observed during that visit that the old engine had been removed and that a crate was sitting next to the old engine in the shop, which, she believes, contained the new engine to be installed in the van. Between March 19 and March 23, the customer attempted to contact Thomas each day, and she saw her van lifted on the rack whenever she drove by the shop. Thomas did not respond, however, to her additional attempts to contact him.

On March 26, the customer filed a civil complaint in magistrate court against Thomas. At a hearing before the magistrate court on May 9, Thomas claimed that the work on the van was complete, and the trial court ordered him to deliver it to the customer on the next morning. The magistrate court also ordered Thomas to pay damages of approximately $3,000 to the customer. Thomas never delivered the van, however, and the customer testified at Thomas’s criminal trial about her belief that Thomas no longer worked at the shop where her van had been stored and that the shop’s owner had arranged for someone to tow her van to a junkyard in May 2007. The customer apparently never recovered her van.

By accusation, the district attorney charged Thomas with one count of theft by conversion. The accusation alleged that Thomas, “having lawfully obtained a 1996 Ford Windstar, property belonging to [the customer], under an agreement to make a specified disposition of such property, did knowingly convert such property to his own use in violation of the agreement.” The accusation notably did not accuse Thomas of having converted the money that the customer had paid to him for the repair of her van.

1. Thomas claims that the evidence presented at his bench trial is insufficient to sustain his conviction for theft by conversion. When this Court considers whether the evidence is sufficient to support a conviction, we must determine “whether any rational jury could find, in the evidence adduced at trial, proof of guilt beyond a reasonable doubt, viewing the evidence in the light most favorable to the verdict.” Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010); see also Cutrer v. State, 287 Ga. 272, 274 (695 SE2d 597) (2010). As long as there is some competent evidence, even if contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict. Ferguson, supra at 233 (1); see also Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001). On appeal, Thomas contends that the evidence shows merely that he failed to fulfill his obligations to repair and return the van, not that he converted it.

Thomas was charged with, and convicted of, violating OCGA § 16-8-4 (a), which provides:

A person commits the offense of theft by conversion when, having lawfully obtained funds or other property of another including, but not limited to, leased or rented personal property, under an agreement or other known legal obligation to make a specified application of such funds or a specified disposition of such property, he knowingly converts the funds or property to his own use in violation of the agreement or legal obligation. . . .

As we have cautioned before, this statute is intended to punish the fraudulent conversion of property, not mere breaches of contract or broken promises. State v. Benton, 305 Ga. App. 332, 334, n. 3 (699 SE2d 767) (2010); see also Terrell u. State, 275 Ga. App. 501, 501 (621 SE2d 515) (2005) (“The presence of fraudulent intent distinguishes criminal theft by conversion from a breach of contract.”); Scarber v. State, 211 Ga. App. 260, 260 (439 SE2d 83) (1993) (“OCGA § 16-8-4 is intended to punish fraudulent conversion, not breach of contract, and in order to avoid the constitutional prohibition against imprisonment for debt, the State must prove fraudulent intent.”). So, evidence sufficient to show that someone breached a contract and broke his promises may not be sufficient to prove that he committed criminal conversion. To prove criminal conversion, the State must prove something more, that the defendant misappropriated the property at issue to his own use with fraudulent intent. In this case, we think the State failed to do so.

Here, the evidence shows clearly that Thomas abandoned his work on the van, that he apparently abandoned the van at the shop at which he had worked, and that he never delivered the van to the customer. He did these things despite his promises to complete the work, his repeated assurances that the work would soon be complete, his statement to the magistrate court that he had, in fact, completed the work, and the direction of the magistrate court to deliver the van to the customer. But there is no evidence that Thomas drove the van, that he cannibalized it for spare parts, or that he used it for any other purpose, except to perform work upon it. There is no evidence that Thomas did anything to conceal the whereabouts of the van from the customer or to keep her from recovering possession of it. And although it appears from the record that the van ultimately was taken from the shop to a junkyard, nothing in the record suggests that Thomas had anything to do with the disposal of the van. Indeed, the customer admitted her belief that the owner of the shop made the decision to tow away her van after Thomas quit working at the shop.

The State notes that the evidence would authorize a trier of fact to conclude that Thomas, on more than one occasion, made misrepresentations about the repair of the van and ignored the customer when she attempted to contact him, and the State contends that this evidence, when combined with the undisputed failure of Thomas to return the van to the possession of the customer, is sufficient to prove that Thomas converted the van with fraudulent intent. In Terrell, supra, we found sufficient evidence to sustain a conviction for criminal conversion of a wood chipper where the defendant made misrepresentations to the company from which he rented it, ignored repeated attempts to contact him, and never returned the chipper to the possession of the company. 275 Ga. App. at 501-502. But Terrell differs from this case in several important respects.

First, the misrepresentations in Terrell were misrepresentations about where the defendant and the wood chipper might be found, and the defendant ignored repeated attempts to contact him at a time when the owner was searching for, but could not locate, the chipper. See id. at 502. Here, on the other hand, the evidence shows that Thomas’s misrepresentations concerned the status of his work on the van and the time of its completion, not its whereabouts. And at the times Thomas failed to respond to attempts by his customer to contact him, the record suggests that the van was at the shop, precisely where the customer knew it to be. Unlike Terrell, the evidence in this case does not authorize the inference that Thomas engaged in an effort to conceal the whereabouts of the van. Second, our opinion in Terrell does not suggest that the record there contained any evidence of what really happened to the wood chipper. See id. at 501-503. Here, on the other hand, the record indicates that the van was towed away to a junkyard, not by Thomas, but by the arrangement of the shop owner. Finally, in Terrell, the defendant fled to Mexico after failing to return the wood chipper, where he lived under an alias for some time. See id. at 502. Here, there is no evidence that Thomas fled beyond the reach of the courts. To the contrary, Thomas appeared at a hearing in the magistrate court after his customer filed a lawsuit against him.

We think this case is more like Scarber, supra, and Barrett v. State, 207 Ga. App. 370 (427 SE2d 845) (1993). In Scarber, the defendant had arranged to purchase antique furniture and took possession of the furniture from its owner. The defendant was convicted of theft by conversion after he failed to pay the purchase price to which he and the owner had agreed, despite assurances that he would do so, failed to return the furniture to the owner, and failed to respond to attempts to contact him. 211 Ga. App. at 260. We reversed the conviction, holding that the evidence was insufficient to prove beyond a reasonable doubt that the defendant converted the furniture to his own use with fraudulent intent. In explaining our holding, we specifically noted the absence of any evidence about the ultimate disposition of the furniture or that the defendant did anything with the furniture after he obtained possession of it. Id. at 260-261. Here, of course, we have some evidence about what finally happened to the van, but that evidence suggests that its disposal was arranged by someone other than Thomas.

Decided March 9, 2011.

Kevin C. Armstrong, for appellant.

Gregory W. Edwards, District Attorney, for appellee.

In Barrett, the defendant rented equipment from a video rental store, he failed to return it as promised, and the store was unable to contact him. 207 Ga. App. at 370. He was convicted of theft by conversion, and we reversed, finding the evidence insufficient. We noted that the State “presented no evidence regarding what happened to the equipment and failed to show that [the defendant] knowingly and with fraudulent intent appropriated it for his own use.” Id. Here, as in Barrett, the evidence simply does not prove that Thomas misappropriated the van to his own use and did so with fraudulent intent.

Thomas’s treatment of his customer was contemptible and reprehensible. But the evidence is insufficient to prove beyond a reasonable doubt that it amounted to a crime. We, therefore, reverse Thomas’s conviction for theft by conversion.

2. Thomas also contends on appeal that the trial court erred when it required him, as part of his sentence, to pay restitution that exceeded the actual amount of loss sustained by the customer. Because we reverse his conviction, this enumeration of error is moot. See Crane v. State, 302 Ga. App. 422, 424 (3) (691 SE2d 559) (2010).

Judgment reversed.

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

       On an appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the verdict. Matthiessen v. State, 211 Ga. App. 54 (625 SE2d 422) (2005).

       It is unclear from the record whether the companion was the customer’s son or simply a friend with whom she had a maternal-like relationship.

       The victim testified that she did not take her van home when she visited the shop and saw it there because it had no engine and, therefore, could not be driven. But there is no testimony that, for instance, Thomas would not have permitted her to have the van towed from the shop.


author: BARNES, Presiding Judge.

text:
    A10A2124.
    In the Interest of J. C., a child.
    (708 SE2d 1)
   BARNES, Presiding Judge.

Sixteen-year-old J. C. was adjudicated delinquent for shoplifting, and argues on appeal that the State’s evidence against him was insufficient because it was based on inadmissible hearsay and that the juvenile court judge did not comply with the requirements of OCGA § 15-11-21 (e) in ruling upon J. C.’s request for rehearing. For the reasons that follow, we affirm in part, reverse in part, and remand with direction.

In reviewing a delinquency adjudication, “we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged.” (Citations and punctuation omitted.) In the Interest ofT. T, 236 Ga. App. 46 (1) (510 SE2d 901) (1999). We examine the evidence under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), with all reasonable inferences construed in favor of the juvenile court’s findings. In the Interest of C. F., 255 Ga. App. 620-621 (566 SE2d 387) (2002).

So viewed, the evidence demonstrates that a security guard at Macy’s was watching customers via the store’s closed circuit television (CCTV) system when he saw J. C. select a Polo hat from the merchandise on sale and put it down his pants. Within less than one minute, the guard arrived on the sales floor and watched J. C. leave the store. The guard then followed him out the door and apprehended him. J. C. did not have the hat on him, but told the guard he had taken it out of his pants and put it back.

1. J. C. contends the trial court erred in considering the security guard’s testimony, arguing that it was inadmissible hearsay because it was “based on a video that was not introduced into evidence at the adjudicatory hearing.”

In juvenile proceedings, the standard of proof on charges of a criminal nature is the same as that used in criminal proceedings against adults — proof must be beyond a reasonable doubt. An adjudication of delinquency cannot be based on hearsay, as hearsay is inadmissible, without probative value, and carries no weight whatsoever in establishing a fact.

(Citations and punctuation omitted.) In the Interest of C. G., 261 Ga. App. 814 (1) (584 SE2d 33) (2003). In C. G., we reversed a delinquency adjudication because the State’s witness who identified C. G. as the juvenile who assaulted a police officer did not see the incident occur, but only reviewed a videotape of it. Id. The recording was not tendered into evidence, the witness explained, because it could only be viewed using unavailable specialized equipment. Id. We held that because the videotape was “not made available to the court by being placed into evidence for the defendant to see and mount a defense,” the witness’s testimony was inadmissible hearsay. Id. The officer who was the victim could not identify his assailant, and thus we reversed the adjudication for lack of evidence. Id. at 815 (1).

In this case, however, the guard did not testify based on his review of a recording that showed J. C. concealing merchandise in his pants; he testified based on his observation, via closed-circuit television, of the event as it happened. A witness’s testimony about an event he saw unfold live is original evidence, not inadmissible hearsay. Hurston v. State, 194 Ga. App. 226 (390 SE2d 119) (1990). The guard’s testimony in this case was therefore not based on hearsay.

2. J. C. also asserts that, even if the security guard’s testimony was admissible, the State’s evidence was still insufficient to prove beyond a reasonable doubt that he committed theft by shoplifting. The State’s delinquency petition against J. C. alleged he committed the offense “when he did, with the intent of appropriating merchandise to his own use without paying for the same, take possession of and conceal a hat.” The petition tracks the language of the shoplifting statute, OCGA § 16-8-14 (a) (1). J. C. contends the State failed to prove he ever had possession of the hat, because “a reasonable fact finder might question whether [the guard] accidentally misidentified J. C. as the individual on the video,” and because J. C. did not possess the hat when he was apprehended.

First, as discussed in Division 1, the guard did not identify J. C. based on a videotape; he identified him based on his observation of him through a CCTV monitor. That a factfinder might question the guard’s testimony does not make the evidence insufficient, but raises a credibility issue going to the weight of the evidence.

Second, evidence that J. C. put the hat down his pants is sufficient to establish his intent to shoplift it, regardless of whether he left the store with it. OCGA § 16-8-14 (a) (1) provides that a person commits the offense of shoplifting when he conceals merchandise with the intent of appropriating it to his own use without paying for it or depriving the owner of its possession. “[C]riminal intent may be inferred from the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted,” and removing the merchandise from the store is not required to establish criminal intent. (Punctuation omitted.) K-Mart Corp. v. Coker, 261 Ga. 745, 747 (2), (3) (410 SE2d 425) (1991) (examining criminal intent in a malicious prosecution case).

Here, the guard began watching J. C. because he was in the men’s Polo department, a high-crime area of the department store. There were no employees in the area. The guard saw J. C. select a hat, conceal it in his pants, and walk toward the store’s exit. This evidence is sufficient for the factfinder to conclude J. C. intended to steal the hat. See, e.g., Simmons v. State, 278 Ga. App. 372, 372-373 (1) (629 SE2d 86) (2006) (intent proven by evidence defendant put two bottles of liquor in his pants, even though he returned them to shelf); Racquemore v. State, 204 Ga. App. 88 (1) (418 SE2d 448) (1992) (intent proven by evidence defendant put two packages of meat in his pants, even though he returned them to display case).

Although the evidence is legally sufficient to sustain an adjudication of delinquency, we note that the evidence does not demand such an adjudication. Whether to adjudicate J. C. delinquent on this evidence is a decision that is committed in the first instance to the trier of fact.

3. Finally, J. C. contends the juvenile court’s order denying his rehearing request was legally deficient. OCGA § 15-11-21 (e) provides that, upon the issuance of an associate juvenile court judge’s order following a hearing, a rehearing by the judge “shall be ordered if a party files a written request therefor within five days after receiving a copy of the order of the associate juvenile court judge.” In response to such a request, the juvenile court judge must “make de novo findings and recommendations after conducting a de novo review of the original evidence that the [associate juvenile court judge] had considered.” In the Interest of M. E. T, 197 Ga. App. 255, 257 (1) (398 SE2d 30) (1990). In other words, the judge must review the evidence de novo, although he or she need not conduct a new evidentiary hearing. Id.

J. C. argues that the order of the juvenile judge did not include de novo findings and recommendations in the order, and erroneously “denied” his motion for rehearing. In M. E. T, we reversed the juvenile court’s order issued in response to a motion for rehearing under this Code section, formerly OCGA § 15-11-10 (d). 197 Ga. App. at 256-258 (1). In the order in that case, the judge stated he reviewed the pleadings and transcript of the proceeding, and found that the associate judge “did not commit any error in fact or in law in his conduct of this hearing. It is therefore ORDERED that (appellant’s) appeal is DENIED and the findings of the [associate judge] . . . are hereby confirmed and made the ORDER of the Court.” Id. at 256. The judge subsequently signed the associate judge’s original findings and recommendations, stating incorrectly that the juvenile had not filed a request for rehearing. Id.

In reversing the adjudication, we concluded that the judge failed to follow the statutory requirements for a rehearing or reconsideration de novo, which is more than an appellate review of the associate judge’s findings and recommendations. M.E. T, supra, 197 Ga. App. at 256-257 (1).

Decided February 4, 2011

Reconsideration denied March 10, 2011.

Randee J. Waldman, Stephen M. Reba, for appellant.

Gwendolyn Keyes Fleming, District Attorney, Robert H. Wilson, Assistant District Attorney, for appellee.

In response to J. C.’s motion for rehearing in this case, the juvenile court judge stated that the case was heard before one associate judge for an adjudicatory hearing and another associate judge for a dispositional hearing. The order then provided:

The undersigned has reviewed the matter in accordance with Rule 19-2 of the Uniform Rules for the Juvenile Courts of Georgia by reviewing the pleadings and the electronic recordings of the original proceeding. Upon review and consideration of the same, IT IS HEREBY ORDERED that the Motion for Rehearing be DENIED.

While the language of this order may suggest that the judge conducted a de novo review, as the State argues, the judge plainly erred in “denying” J. C.’s motion for rehearing. “[T]he disposition that the juvenile court judge was authorized and required to make was a de novo determination as to appellant’s delinquency, not an order granting or denying appellant’s [motion].” M. E. T, supra, 197 Ga. App. at 257 (1). “The only way for an appellate court to ensure that important safeguards such as these are observed is to reverse a case in which they are not observed and remand the case for further proceedings in which they will be observed.” In the Interest of C. M. M., 244 Ga. 787, 789 (2) (262 SE2d 103) (1979) (reversing order transferring juvenile case to superior court because associate judge failed to inform juvenile before hearing of his right to have issue heard only by judge, and failed in written findings and recommendations for disposition to include notice of juvenile’s right to rehearing before judge); In the Interest of W.M. E, 180 Ga. App. 397, 399 (4) (349 SE2d 265) (1986) (physical precedent only).

Judgment affirmed in part and reversed in part, and case remanded with direction.

Blackwell and Dillard, JJ., concur.

       We note also that nothing in the record establishes that the incident was even recorded, although the presence or absence of a recording is not dispositive. Because the admissibility of a recording is not an issue in this case, the facts do not implicate the Confrontation Clause or the admissibility of testimonial statements from unavailable witnesses, as was the case in Crawford v. Washington, 541 U. S. 36, 53-54 (124 SC 1354, 158 LE2d 177) (2004). See Stovall v. State, 287 Ga. 415, 418 (3) (696 SE2d 633) (2010).


text:
    A10A2184.
    RICHARDSON v. GEORGIA POWER COMPANY.
    (708 SE2d 10)
   BARNES, Presiding Judge.

Richard Richardson began building a garage on a section of his property encumbered by an easement owned by Georgia Power. The company sued Richardson, seeking injunctive relief from the encroachment and attorney fees for bad faith and stubborn litigiousness. Following discovery, both parties moved for summary judgment, and the trial court granted it to Georgia Power as to the encroachment issue. Richardson appeals, contending the trial court erred in holding that Richardson’s garage was not permitted by the easement. For the reasons that follow, we affirm.

In 1955, Georgia Power acquired by condemnation a 100-foot-wide utility easement, which encumbers a portion of Richardson’s property. The easement, which was recorded, gives the company “the continuous right from time to time to go in and . . . construct, erect, install, operate, maintain, inspect, reconstruct, repair, rebuild, renew and replace” towers, frames, and poles, among other things. It also gives the company the right “to clear, keep clear and to remove . . . all undergrowth, trees and other obstructions, objects and structures” from the easement. Finally, the easement provides:

[T]he land between the towers, frames and poles may be used by the owners of said land . . . for agricultural or roadway or other purposes, provided such use is not inconsistent with the rights sought to be condemned and . . . does not interfere with . . . [the] towers, frames, poles, wires, lines, and the construction, erection, installation, operation, maintenance, inspection, reconstruction, repairing, renewal, replacement and the rebuilding [of the structures].

A 115,000-volt transmission line runs through the easement.

Richardson bought the property in 2006, and his warranty deed notes that the property is subject to “general utility easements of record.” He obtained a building permit and began building a garage on that portion of his property subject to the easement, but before he finished, a right-of-way specialist with Georgia Power asked him to remove the structure because it encroached on the easement. Richardson declined to do so, contending that the structure does not interfere with Georgia Power’s use, and this suit followed.

The evidence presented to the trial court includes Richardson’s deposition and affidavit, three affidavits from Georgia Power employees, and an affidavit from the company’s attorney regarding fees. In his affidavit, Richardson avers that there are “no wires, guy wires, anchors, braces, supports, towers, frames or poles” on that part of the easement within his property, and that his structure does not interfere with the operation of or access to the power line.

A right-of-way supervisor for Georgia Power averred that unimpeded access to the 115,000-volt power line running through this easement was “critical to providing safe and reliable electricity.” A permanent structure such as the one on Richardson’s property “directly and adversely interferes with [the company’s] ability and rights to access that area to carry out operation and maintenance duties, and specifically eliminates our ability and rights under the easement to construct, erect or install the towers, frames, and poles necessary” to transmit electricity, according to the supervisor. Specifically, he continues, the structure eliminates the company’s ability to construct any additional towers, frames, and poles that may become necessary in the future, and interferes with its ability to access that area for overhead or underground wires.

Additionally, in her affidavit, a right-of-way specialist noted that the garage was 70 feet from one utility pole and 25 feet from another, and the company kept the easement free of trees and obstructions for “maintenance and safety,” including, for example, three specific reasons: (1) If the company relocated the poles, the garage may interfere with the relocation of the grounding system; (2) when performing line maintenance, the conductor often must be lowered to the ground and the garage’s location directly under one of the “outside phases” of the line would compromise safety; and (3) depending on the equipment used, someone working on the garage roof could violate the Georgia High-voltage Safety Act.

In its 12-page order, the trial court exhaustively reviewed the facts and concluded that the evidence established that Richardson committed a trespass and violated the easement by building a permanent structure on it. The easement itself was unambiguous, and the 20' x 20' permanent building substantially interfered with Georgia Power’s use under the express terms of the easement. Richardson knew or should have known about the easement, which was recorded, and his building permit specified that “to avoid encumbrances” of the property he should contact a lawyer or buy a consumer guide. The trial court issued an injunction ordering Richardson to remove his structure from the easement. The court denied summary judgment, however, on Georgia Power’s motion for attorney fees under OCGA § 13-6-11, finding that genuine issues of material fact existed as to whether Richardson was stubbornly litigious, and if so, what amount of fees should be awarded.

1. Richardson argues that this easement was not a “contract” but was granted under a condemnation proceeding, and expresses uncertainty regarding the trial court’s statement that “the terms of the contract clearly state the rights of each party,” asserting that the trial court’s discussion of contractual construction is irrelevant. Richardson misunderstands the nature of both the condemnation and the resulting easement. The condemnation was simply a method by which the utility established its need for and cost of the easement it sought. Once the property was “condemned,” the company paid the landowners the value of the easement, which was reduced to writing and filed with the deeds, covenants, plats, and other documents related to real estate ownership. That written easement constitutes a contract, and express easements are construed by applying the rules of contract construction. Municipal Elec. Auth. of Ga. v. Gold-Arrow Farms, 276 Ga. App. 862, 866 (1) (625 SE2d 57) (2005). “Generally, this [easement] presents a question of law for the court, unless the language presents an ambiguity that cannot be resolved by the rules of construction.” Id. In construing a contract, if the terms are clear and unambiguous, the court looks to the contract alone — the easement itself — to determine the parties’ intent. Parris Properties v. Nichols, 305 Ga. App. 734, 738 (1) (a) (700 SE2d 848) (2010).

2. Richardson also asserts that the trial court erred in finding that he “trespassed” by constructing the building on his own property, because an owner cannot trespass on his own property. He argues that he violated no statute or ordinance that would constitute a “trespass.” As used in this context, however, a “trespass” upon an easement means use of the property in violation of the easement terms. See, e.g., Sams v. Young, 217 Ga. 685, 687 (124 SE2d 386) (1962) (“any unlawful interference with a property right is a trespass”) (citation and punctuation omitted); Ga. Power Co. v. Green, 207 Ga. 250 (61 SE2d 146) (1950) (utility contended that house erected beneath its transmission line constituted a “trespass upon the easement”). Richardson is correct that he owns the property and has a right to enter it and enjoy it, to the extent that his use does not violate the terms of the easement.

3. Richardson next contends that the trial court erred in concluding that his garage materially or substantially interfered with Georgia Power’s easement. Any restrictions on an owner’s use of land must be clearly established and strictly construed in the owner’s favor. Glisson v. IRHA of Loganville, 289 Ga. App. 311, 313 (1) (656 SE2d 924) (2008) (subdivision’s restrictive covenants clearly prohibited building a shed in materials different from those used to build the house). As noted by the amicus brief submitted by the Georgia Transmission Corporation, however, the easement does not prohibit the landowner from “substantially” interfering with the utility’s specified uses, but rather prohibits any use that “interferes” with the operation and maintenance of the power line. Thus, the trial court need not have found that Richardson’s garage “substantially” interfered with Georgia Power’s easement rights, only that it interfered with those rights at all.

Decided February 17, 2011

RECONSIDERATION DENIED MARCH 10, 2011 —

Brace W. Luquire, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, Jorge Vega, Balch & Bingham, Natalie M. Beasman, for appellee.

Fred D. Bentley, Jr., amicus curiae.

Richardson also argues that the trial court incorrectly found that any encroachment onto the easement was an impermissible interference. The trial court did not find that “any” encroachment was an impermissible interference, however; it found that a 20-by-20-foot structure located between two utility poles was an interference.

4. Finally, Richardson argues that the trial court erred in determining that the garage interfered with the utility’s easement. Pretermitting whether Georgia Power presented sufficient evidence to establish that the garage actually interfered with the operation and maintenance of the transmission line, Richardson’s right to enjoy his property is limited by the specific rights granted to Georgia Power in its easement. The easement expressly permits the company to keep the right-of-way clear of “obstructions, objects and structures.” Applying this unambiguous term to the facts before us, Georgia Power’s easement gives it the right to remove the garage from its right-of-way. Accordingly, the trial court did not err in granting Georgia Power’s motion for summary judgment on the issue of trespass and in issuing an injunction ordering the removal of Richardson’s garage.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

       Georgia Power argues that the garage compromises its ability to maintain the lines, because, for example, if it had to lower the line to the ground for maintenance, the garage would be too close according to applicable safety rules.


author: Dillard, Judge. BARNES, Presiding Judge,

text:
    A10A1655.
    THE STATE v. SMITH.
    (707 SE2d 560)
   Dillard, Judge.

Elvis Smith was indicted on one count of robbery by force and one count of kidnapping, based on his alleged participation in the hijacking of an automobile and the abduction of one of its occupants. Thereafter, Smith moved to suppress evidence that the victims identified him from photographic lineups and to preclude the same victims from identifying him at trial. Without holding an evidentiary hearing, the trial court granted Smith’s motion, finding that the State failed to proffer any evidence to support the admissibility of the identifications despite being given an adequate opportunity to do so. The State appeals, arguing that the trial court erred in granting Smith’s motion to suppress the photographic and in-court identifications without first holding an evidentiary hearing. For the reasons set forth infra, we vacate the trial court’s order granting Smith’s motion to suppress, and remand the case for additional proceedings consistent with this opinion.

Here, the evidence shows that in the early morning hours of July 27, 2007, police responded to a report of an automobile hijacking and kidnapping in downtown Atlanta. Upon arriving at the scene, the police spoke with a young male, who claimed that after leaving a nightclub, he and his sister were followed to their car by three African-American males—two of whom were later identified as Corey Lakes and Elvis Smith. And before the siblings could drive away, Smith allegedly climbed into the passenger seat of the car on top of the driver’s sister and refused to exit the vehicle. According to the brother, he then got out of the car and attempted to remove Smith from the vehicle; but as he did, Lakes jumped into the now vacant driver’s seat and drove away with his sister and Smith still in the automobile. Within a few hours, the driver’s sister called police on her cell phone after being released by her captors on a dirt road several miles away from the scene of the hijacking. She reported to the police that Lakes had forced her to withdraw money from several ATMs and raped her.

Shortly thereafter, police spotted the stolen car in another part of town. After a brief high-speed chase, the police forced the car to stop and arrested Lakes, who was driving the vehicle, and Smith. A few days later, the victims met with police to view a photographic lineup of possible suspects, and both of them identified Lakes and Smith as the men who hijacked their vehicle.

On January 29, 2008, Smith moved to suppress the photographic-lineup identifications and any in-court identifications. The matter then came up for a hearing on November 17, 2009, at which time the prosecutor for the State claimed that Smith’s motion had not been properly served on her office, and she was, therefore, not prepared to argue against it. Smith’s counsel countered that she had properly served the prosecutor’s office with the motion, and then requested that the trial court either dismiss the indictment or grant the motion. The trial court advised Smith’s counsel that while it could not dismiss the case, it could grant the motion to suppress. In response, the prosecutor requested that the trial court not grant the motion to suppress, noting:

It’s an evidentiary motion. Had I been aware of having been served with that motion, then I would have subpoenaed the victim. I have spoken to the victim. The victim is local. Her brother, who was with her at the time, is not local. He resides out of state. But the victim of the alleged kidnapping and robbery in this case is a local victim and I would have subpoenaed her to have been here.

At the conclusion of the hearing, the trial court issued no ruling, but stated that it would take the matter under advisement.

On February 8, 2010, the trial court again conducted a hearing on Smith’s motion to suppress. During this hearing, the trial court found that the motion had been properly served upon the prosecutor’s office, that the State was not ready to proceed in opposition to the motion at the previous hearing, and that, “given the evidence that’s been brought forward,” it was appropriate to grant the motion without holding an evidentiary hearing. The State’s prosecutor immediately moved for reconsideration of this ruling, and in doing so noted that the suppression of the photographic and in-court identifications concerned an issue that was “very substantial.” The trial court advised the prosecutor that it would not revisit the matter, but would instead give the State “an opportunity to resolve the case.” In doing so, the trial court made the following remarks to counsel:

Quite frankly, I do believe that the defendant’s motion [to suppress] is meritorious, given the fact that the State had the opportunity to get its witnesses here. I think the motion was properly set down, and it just didn’t materialize on behalf of the State. The offer—There was an offer of probation made with respect to the robbery and dead docketing of the kidnapping previously. I assume that the State made that offer for a reason. You know the case better than I do because I don’t really recall many of the facts of the case. I do know that we tried the co-defendant.
I will give the State an opportunity to huddle with [Smith’s counsel] and talk about it. Try and resolve the case, and we will see where we go from there.

At this point, the prosecutor advised the trial court that she had prepared for an evidentiary hearing, and noted that the investigating officer and two victims were in the courtroom and prepared to testify on behalf of the State in opposition to the motion to suppress. The trial court informed the prosecutor that it was not “inclined to [hold an evidentiary hearing] at that time,” and then directed the parties to discuss resolution of the case.

Unsurprisingly, the prosecutor and defense counsel were unable to reach an agreement. The trial court then reaffirmed its decision to grant Smith’s motion to suppress, and in doing so noted that it would “include any and all . . . out-of-court as well as in-court identifications of the defendant.” The prosecutor, once again, pleaded with the trial court to reconsider its ruling:

There was no recordation of any motions having been filed on any district attorney. So I was operating under the assumption that our office had not been served copies of the motion. However, since that time I have looked at the co-defendant’s . . . trial file folder, and I discovered that there was, in fact, in that defendant’s file, a copy of the motions, the same exhibit that counsel has tendered [i.e., the motion to suppress].
However, I will state in my place I was not aware of that. And then, in good faith, I assumed that we had not been properly—We being the District Attorney’s Office, had not been properly served with the motion or I wouldn’t [sic] have subpoenaed the victim, who . . . has always been local since the time of their indictment. The detective has always been with the Atlanta Police Department. He has since retired, but is still local. And the brother who is currently local, at one time was out of state, but we have always had contact information for him. So there would have been no reason the State would not have been prepared, other than in good faith. I honestly believed that the State had not been served with copies of the motion. . . . So, you know, the State has now been prejudiced as a result.
But, Judge, when I filed the motion for reconsideration, it was just asking for the Court to allow the State to present [sic] evidentiary hearing of evidence before the Court. Those victims . . . were present today as well as [the detective] who conducted the photographic lineup as well as what the State would expect the in-court ID [to show, and this testimony is] very crucial to the case. . . .

Notwithstanding this impassioned plea, the trial court granted Smith’s motion to suppress without holding an evidentiary hearing, finding that the State failed to proffer any evidence to contest the motion (even though the State was ready and prepared to do just that at the February 8, 2010 hearing). This appeal follows.

1. We first address the issue of whether we have jurisdiction over this appeal. It is well established that “[t]his Court has a duty to inquire into its jurisdiction to review the errors alleged on appeal,” and it is a duty that we do not take lightly. And after conducting such an inquiry in this matter, we find that despite the admittedly unique circumstances involved, we have jurisdiction over this appeal.

Under OCGA § 5-7-1 (a) (4), the State may appeal directly “[f]rom an order, decision, or judgment suppressing or excluding evidence illegally seized or excluding the results of any test for alcohol or drugs in the case of motions made and ruled upon prior to the impaneling of a jury or the defendant being put in jeopardy. . . .” Addressing this statute in State u. Strickman, the Supreme Court of Georgia deemed “the enactment of the appeal statute to be remedial in nature, so that an error committed by a trial judge, which otherwise might work a miscarriage of justice, can be corrected on appeal, and before attachment of jeopardy,” and further noted that, “[b]eing remedial in nature, it should be construed liberally.” In that same opinion, the Supreme Court held that “if a defendant moves before trial to exclude evidence on the ground that it was obtained in violation of law, the grant of such a motion—whatever its name—is subject to direct appeal on the part of the state.”

Here, Smith filed a motion to suppress identifications on the ground that they were obtained as a result of an improper photographic lineup, and the State had the burden of showing that this lineup was lawful. However, during the final hearing on Smith’s motion, as discussed supra and infra, the trial court refused to allow the State to present evidence to contest the motion as a means of sanctioning it for prosecutorial conduct that the court deemed to be dilatory in nature. Moreover, during the hearing, the trial court remarked to counsel: “Quite frankly, I do believe that the defendant’s motion [to suppress] is meritorious.” Furthermore, the trial court’s written order granting Smith’s motion to suppress noted that “the State failed to put forth any evidence in this matter either in support of or counter to [the motion].” Thus, the trial court either (1) granted the motion to suppress as an improper sanction, or (2) denied the State the opportunity to proffer evidence in opposition to the motion as a sanction, and then granted the motion because the State’s inability to introduce such evidence precluded it from satisfying its burden of showing the legality of the photographic lineup. In either event, the State’s direct appeal is from an order that (1) was issued prior to the impaneling of a jury or Smith being put in jeopardy, and (2) granted Smith’s motion to suppress evidence that was allegedly obtained in an illegal manner, and which the trial court deemed “meritorious” even apart from the prosecutor’s supposed dilatory conduct. Consequently, we conclude that the State’s direct appeal was authorized by OCGA § 5-7-1 (a) (4).

The dissent contends that this Court lacks jurisdiction to hear this appeal, arguing that the trial court granted Smith’s motion to suppress primarily as a means of sanctioning the State’s prosecutor for her allegedly dilatory conduct, and that, for this reason, the trial court’s order cannot properly be characterized as the grant of a motion to suppress unlawfully obtained evidence under OCGA § 5-7-1 (a) (4). In support of its argument, the dissent cites the Supreme Court of Georgia’s opinion in Berky v. State, which held that OCGA § 5-7-1 (a), generally, should be construed strictly against the State. The dissent argues that Berky further held that in determining whether a trial court’s order is subject to direct appeal, the focus is “not upon the terminology used by the court, but upon the substance of the trial court’s action.” Additionally, the dissent maintains that in light of the fact that our Supreme Court’s opinion in Berky is more recent in time than Strickman, the holding in Strickman—that the statute delineating when the State can appeal in a criminal case should be construed liberally—is no longer controlling.

In addressing the dissent’s concerns, we first note that the transcript from the final hearing on Smith’s motion to suppress provides us with at least a modicum of evidence that the trial court granted the motion, in part, on substantive grounds (i.e., that the identifications were unlawfully obtained). Specifically, the trial court indicated that it believed Smith’s motion to suppress to be “meritorious.” And while the trial court noted immediately thereafter that this belief was based on “the fact that the State had [a previous] opportunity to get its witnesses here,” the court also went on to state that “[t]here was an offer of probation made with respect to the robbery and dead docketing of the kidnapping previously[, and] I assume that the State made that offer for a reason.” This latter statement strongly suggests that the trial court believed Smith’s motion to suppress had substantive merit, and we conclude this is more than enough to satisfy Berky and its progeny’s strict jurisdictional test.

But even if we are mistaken in our understanding of the trial court’s holding, Strickman still compels us to exercise jurisdiction over the State’s appeal. To begin with, Strickman has never been explicitly overruled or even disapproved of by the Supreme Court of Georgia. Indeed, our Supreme Court continues to cite Strickman, and has done so despite recognizing that the decision is in tension with Berky. It is also worth noting that the specific language upon which the dissent relies in Berky has a rather interesting history. Specifically, Berky’s admonition to construe “OCGA § 5-7-1 (a) strictly against the State” originated directly from a case that the Strickman Court explicitly disapproved of in its opinion. Furthermore, unlike Berky, which specifically involved an interpretation of OCGA § 5-7-1 (a) (1), the Supreme Court’s opinion in Strickman specifically construes the prior version of OCGA § 5-7-1 (a) (4) at issue in this case. Therefore, while we agree with the dissent that there is unquestionably tension between Strickman and Berky, the former case controls because it deals with the precise statutory provision at issue here, and the doctrine of stare decisis prohibits this Court from ignoring the valid precedent of a higher court.

Moreover, we conclude that even under Berky, the trial court’s order is directly appealable, because “the substance of the trial court’s action” in this case was to bar the State from proffering evidence in opposition to Smith’s motion to suppress, which in turn precluded the State from meeting its burden of showing that the identifications were lawfully obtained and “resulted” in Smith’s “meritorious” motion being granted. In this respect, the case sub judice is nothing like Berky, where the State was arguably attempting to do an end run around this Court’s jurisdictional limitations by seeking to appeal a garden-variety evidentiary ruling. Here, the State merely seeks to appeal a decision granting a criminal defendant’s motion to suppress, which was based on the State’s “failure” to satisfy its burden of demonstrating the legality of a photographic lineup after the trial court precluded the State from proffering evidence in opposition to the motion as a means of sanctioning the State’s prosecutor for her allegedly dilatory conduct. The actual, substantive basis for granting Smith’s motion, then, was not the prosecutor’s allegedly dilatory conduct, but rather the State’s “inability” to meet its burden of showing that the identifications were lawfully obtained (resulting in an implicit determination by the trial court to the contrary). And the fact that the trial court was the direct cause of the State’s inability to meet this burden in no way divests this Court of jurisdiction to hear its appeal pursuant to OCGA § 5-7-1 (a) (4).

2. The State contends that the trial court erred in granting Smith’s motion to suppress the photographic-lineup and in-court identifications without first holding an evidentiary hearing. We agree.

In reviewing a trial court’s ruling on a motion to suppress, an appellate court’s charge is to ensure that “there was a substantial basis for the decision.” And while “the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous,” a de novo review is conducted “where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented!.]” Finally, we review a trial court’s evidentiary rulings for abuse of discretion.

Here, the trial court clearly abused its discretion in barring the State from presenting evidence in opposition to Smith’s motion to suppress, and then erred as a matter of law in granting same. Specifically, the trial court held that the State failed to proffer any evidence contesting Smith’s motion to suppress in a timely manner, and did so even though the State was prepared to offer evidence in opposition to the motion at the final hearing on same (i.e., the testimony of the investigating officer and two victims). In essence, despite stating in its order that it granted the motion to suppress because the State failed to counter it, the trial court prohibited the State from proffering evidence in opposition to Smith’s motion to suppress as a means of sanctioning the State’s prosecutor for, in its view, contesting the motion in a dilatory manner, and then granted same because the State was then unable to satisfy its burden of showing that the identifications were lawfully obtained. In doing so, the trial court erred.

No constitutional provision or statute authorizes a trial court to bar the State from presenting evidence at a hearing on a motion to suppress as a sanction for prior prosecutorial conduct that the court deems to be dilatory in nature. And because there is no such express authorization for what the trial court did here, its actions can only be justified, if at all, as an exercise of some inherent authority to manage its own docket. But even if the inherent authority of a trial court to manage its own docket might in some circumstances permit that court to bar the presentation of evidence by the State at a hearing on a motion for which the State bears the burden of proof (an issue we need not decide today), such authority would not justify the trial court’s actions in this case. Indeed, as a matter of course, “evidence exclusion is an extreme sanction and one not favored in the law.” For this reason, a trial court should exercise great caution before barring the State from showing why evidence it seeks to admit at trial should not be suppressed.

And here, the prosecutor offered a facially reasonable explanation for her unreadiness to present evidence at the earlier hearing (an explanation that showed good faith), even though the State admittedly made a mistake that caused it not to be prepared to proceed in opposition to the motion to suppress at the earlier hearing. Moreover, there was no evidence to rebut this explanation, and the trial court made no finding of bad faith or that Smith had been prejudiced by the delay. Additionally, the trial court’s ruling did not serve any interest of judicial economy, given that the State was ready to present its evidence to counter Smith’s motion at the hearing in which the court issued its ruling. And by barring the State from presenting evidence to contest Smith’s motion as a means of sanctioning the State’s prosecutor (which resulted in the exclusion of the victims’ identifications of Smith), instead of making a finding that Smith’s due-process rights were actually violated, the trial court clearly abused its discretion and impermissibly expanded the scope of a judicially-created rule of evidence suppression far beyond its intended and limited purpose. Accordingly, we vacate the trial court’s order granting Smith’s motion to suppress, and remand the case to the trial court for additional proceedings consistent with this opinion.

Judgment vacated and case remanded.

Smith, P. J., Andrews, Mikell, Adams, and Blackwell, JJ., concur. Barnes, P. J., dissents.

BARNES, Presiding Judge,

dissenting.

This Court has the duty to raise and resolve the question of jurisdiction in all cases where there may be any doubt as to its existence. Rocha v. State, 287 Ga. App. 446 (1) (651 SE2d 781) (2007). Because the trial court granted the motion to suppress as a sanction for the State’s dilatory conduct rather than on the substantive ground that the evidence was unlawfully obtained, we are without jurisdiction to hear the State’s interlocutory appeal. Accordingly, we are required to dismiss the appeal, and I dissent from the majority opinion reaching the merits of the trial court’s ruling.

Neither the United States nor the Georgia Constitution grants a right of appeal to the State in criminal cases. State v. Martin, 278 Ga. 418, 418-419 (603 SE2d 249) (2004). Rather, the authority of the State to directly appeal an adverse ruling in the criminal context is limited to the instances expressly enumerated in OCGA § 5-7-1. State v. Forehand, 246 Ga. App. 590, 593 (2) (542 SE2d 110) (2000). Moreover, the provisions of OCGA § 5-7-1 must be construed strictly against the State and liberally in favor of the interests of defendants. See Martin, 278 Ga. at 419; Berky v. State, 266 Ga. 28, 30 (463 SE2d 891) (1995).

Under OCGA § 5-7-1 (a) (4), the State may appeal directly “[f]rom an order, decision, or judgment suppressing or excluding evidence illegally seized[.]” Notably, OCGA § 5-7-1 (a) (4) has been construed to authorize a direct appeal only if the trial court’s exclusion of evidence was based, at least in part, “upon its determination that the [S]tate unlawfully obtained the evidence.” (Emphasis supplied.) State v. Lavell, 214 Ga. App. 525 (448 SE2d 270) (1994). If the exclusion of evidence is solely based upon some other ground, such as the general evidentiary rules of admissibility, a direct appeal by the State is not permitted. See Berky, 266 Ga. at 28-30 (direct appeal not authorized where trial court suppressed the evidence on ground that State failed to lay a foundation for its admission); Lavell, 214 Ga. App. at 525-526 (direct appeal not authorized where trial court suppressed the evidence on ground that it was inadmissible hearsay). See also State v. McKenna, 199 Ga. App. 206, 207 (404 SE2d 278) (1991) (direct appeal not authorized where trial court suppressed the evidence on ground that the Intoximeter test printout had been materially altered); State v. Brown, 185 Ga. App. 701, 702 (365 SE2d 865) (1988) (direct appeal not authorized where trial court suppressed the evidence based upon its interpretation of the express stipulation entered into by the State and defendant). In determining whether a trial court’s order is subject to direct appeal under OCGA § 5-7-1 (a) (4), we focus “not upon the terminology used by the court, but upon the substance of the trial court’s action.” (Citation and punctuation omitted.) Berky, 266 Ga. at 29. Thus, “even though an order is denominated as one of those which is appealable by the State,” an appeal is not authorized if the order is the result of the exclusion of evidence on a ground not specifically enumerated in OCGA § 5-7-1. Id.

Here, the trial court granted Smith’s motion to suppress as a sanction for the State’s dilatory conduct, not on the ground that the photographic and in-court identifications were conducted in a manner that violated the law. The trial court did not hear from any witnesses; did not receive any documentary evidence; and, in fact, never conducted an evidentiary hearing at all. As such, contrary to the majority’s assertion, the trial court cannot be said to have ruled on the substantive merits of Smith’s motion. Because the trial court did not exclude the evidence on the ground that the State unlawfully obtained the identification evidence, the State was without authority to pursue a direct appeal under OCGA § 5-7-1 (a) (4), and we are without jurisdiction to hear this appeal. See State v. Evans, 282 Ga. 63, 64 (646 SE2d 77) (2007) (“If the State attempts an appeal outside the ambit of OCGA § 5-7-1 (a), the appellate courts do not have jurisdiction to entertain it.”) (citation omitted).

Decided March 10, 2011.

In concluding that jurisdiction was proper, the majority relies upon State v. Strickman, 253 Ga. 287, 288 (319 SE2d 864) (1984), in which the Supreme Court of Georgia held that OCGA § 5-7-1 should be construed liberally in favor of jurisdiction. Strickman, however, is inconsistent with the Supreme Court’s later decisions in Martin and Berky, which held that OCGA § 5-7-1 should be strictly construed against the State. The Supreme Court has held that, in light of the repeal of the “full bench” rule, where there is conflict in its decisions on a particular subject, “the more persuasive rule is that which is later in time.” (Citation and punctuation omitted.) Massey v. Butts County, 281 Ga. 244, 246, n. 2 (637 SE2d 385) (2006). Accordingly, Martin and Berky control over Strickman. Indeed, the Supreme Court in Martin recognized the conflict in its precedent and narrowly construed Strickman as standing for the limited proposition that “the right of appeal provided to the [Sítate in the statute should not be frustrated by the manner in which the defendant names his motion,” a unique circumstance that clearly does not apply to the present case. (Citation and punctuation omitted.) Martin, 278 Ga. at 419.

For these combined reasons, the instant appeal should be dismissed for lack of jurisdiction. In reaching this conclusion, I express neither approval nor disapproval of the trial court’s ruling, and emphasize that public policy questions over whether OCGA § 5-7-1 should be expanded to allow for jurisdiction in a case such as this one are best left to our General Assembly.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellant.

Arthurlyn Combs-Hixson, for appellee.

       OCGA § 16-8-40 (a) (1).

       OCGA § 16-5-40 (a).

       Defense counsel also claimed during the November 17, 2009 hearing that the trial court’s consideration of Smith’s motion to suppress had already been delayed by the State’s inability to proceed on one or more previous occasions, but the appellate record does not appear to support this contention. But even if such evidence is to be found somewhere in the record before us, Smith chose not to file a responsive brief, and as such we decide this appeal based on the State’s Statement of Facts, which we accept as true for purposes of this appeal, see Ga. Ct. App. R. 25 (b), and which does not support Smith’s characterization of the proceedings below.

       (Emphasis supplied.)

       (Emphasis supplied.)

        Coleman v. State, 305 Ga. App. 680, 680 (700 SE2d 668) (2010) (citation and punctuation omitted); see also Miller u. State, 264 Ga. App. 801, 802 (592 SE2d 450) (2003) (same).

        Cf. Salazar v. Buono,_U. S_(130 SC 1803, 1828, 176 LE2d 634) (2010) (Scalia, J., concurring) (“[Aldhering to . . . limits upon our jurisdiction respects the authority of those whom the people have chosen to make and carry out the laws.”).

       The previous version of OCGA § 5-7-1 (4) (1984) contained language that was nearly identical to the language currently contained in OCGA § 5-7-1 (a) (4). See Ga. L. 1994, p. 311, § 1.

       253 Ga. 287, 288 (319 SE2d 864) (1984).

        Id.

        See, e.g., Clark v. State, 279 Ga. 243, 245 (4) (611 SE2d 38) (2005) (holding that State met its burden of proving that a photographic lineup was not impermissibly suggestive); Newkirk v. State, 155 Ga. App. 470, 472 (2) (270 SE2d 917) (1980) (holding that denial of defendant’s motion to suppress did not shift burden placed upon State to show that pretrial identification was not tainted or impermissibly suggestive).

       When a trial court issues a summary order, an examination of the accompanying hearing transcript can, in some cases, provide this Court with a means of ascertaining or clarifying the trial court’s underlying reasoning. See Cates v. Jamison, 301 Ga. App. 441, 442 (687 SE2d 675) (2009) (looking to the hearing transcript in order to determine that “the contents of the final order were dictated by the trial court. . .”); Appling v. Tatum, 295 Ga. App. 78, 82 (670 SE2d 795) (2008) (noting that “the trial court’s order and the hearing transcript. . . clearly set forth the manner in which the child support award was determined”); Beck v. State, 216 Ga. App. 532, 536 (1) (455 SE2d 110) (1995) (“In considering the denial of the motion to suppress, we may consider both the transcript on the hearing and the trial transcript.”); State v. Lavell, 214 Ga. App. 525, 525 (448 SE2d 270) (1994) (examining hearing transcript to determine basis for trial court’s decision to grant the defendant’s motion to suppress).

        See Strickman, 253 Ga. at 288; State v. Morrell, 281 Ga. 152, 152 (2) (635 SE2d 716) (2006) (“It is undisputed that the State has a right to appeal from an order granting a motion to suppress a defendant’s statement.”); Van Auken u. State, 304 Ga. App. 802, 805, n.2 (697 SE2d 895) (2010) (“The state is only authorized to appeal from the grant of a motion to suppress.”).

        Berky v. State, 266 Ga. 28, 29-30 (463 SE2d 891) (1995).

        Id. at 29 (punctuation omitted).

        See Massey v. Butts County, 281 Ga. 244, 246, n.2 (637 SE2d 385) (2006) (holding that in light of the repeal of the “full bench” rule, when there is a conflict in its decisions on a particular subject, “the more persuasive rule is that which is later in time” (citation and punctuation omitted)).

       (Emphasis supplied.)

        See State v. Kramer, 260 Ga. App. 546, 547 (1) (580 SE2d 314) (2003) (noting that while the State “may not appeal the exclusion of evidence which is based only upon some general rule of evidence!,]” it may, nevertheless, “appeal an order . . . based upon general rules of evidence and a determination that the evidence was illegally obtained”); State v. Pastorini, 226 Ga. App. 260, 260 (486 SE2d 399) (1997) (holding that this Court had jurisdiction over State’s appeal because the motion to suppress “at least in part was granted on the grounds that the evidence in question had been obtained in violation of law”).

        See Morrell, 281 Ga. at 153 (2) (citing Strickman for the proposition that the State has the right of immediate appeal of suppression orders “so that an error committed by a trial judge, which otherwise might work a miscarriage of justice, can be corrected on appeal, and before attachment of jeopardy” (punctuation omitted)); State v. Martin, 278 Ga. 418, 419 (603 SE2d 249) (2004) (noting that Berky holds that the statute providing for appeals by the State in criminal cases should be strictly construed, but also noting that Strickman holds that the right of appeal provided to the State in the statute should not be frustrated by the manner in which the defendant names his motion).

       In support of the above-referenced language, Berky cites State u. Land-O-Sun Dairies, Inc., 204 Ga. App. 485, 487 (419 SE2d 743) (1992). As its source, Land-O-Sun cites State v. McIntyre, 191 Ga. App. 565, 566 (382 SE2d 669) (1989), which cites to identical language in State v. Gribble, 169 Ga. App. 446, 446 (313 SE2d 720) (1984). However, the authority for that principle cited by Gribble is State v. Clendinin, 136 Ga. App. 303, 303 (221 SE2d 71) (1975), which Strickman disapproved of in its holding. Strickman, 253 Ga. at 288. Although resolving this apparent error is beyond the authority of this Court, its existence is worth documenting if for no other reason than to point out that the foundation upon which the dissent relies is tenuous at best.

        See Ga. Const., Art. VI, Sec. VI, Par. VI (1983) (“The decisions of the Supreme Court shall bind all other courts as precedents.”); State v. Jackson, 287 Ga. 646, 658 (5) (697 SE2d 757) (2010) (“Stare decisis is an important principle that promotes the rule of law, particularly in the context of statutory interpretation, where our incorrect decisions are more easily corrected by the democratic process.”); Morse v. State, 288 Ga. App. 725, 729 (655 SE2d 217) (2007) (noting that the outcome in that case was compelled by stare decisis); see also Kurt T. Lash, “Originalism, Popular Sovereignty, and Reverse Stare Decisis,” 93 Va. L. Rev. 1437, 1454 (2007) (noting that “[v]ertical stare decisis refers to the binding effect of precedent on lower courts,” and that “[slerious rule of law costs would follow if lower courts were free to ignore precedent established by a higher court of appeal”).

        Berky, 266 Ga. at 29.

        Id.

        Id. (“There is no basis for the State’s appeal of an order granting a defendant’s motion in limine on general evidentiary grounds.”); see also State v. Kramer, 260 Ga. App. at 547 (holding that the State “may not appeal the exclusion of evidence which is based only upon some general rule of evidence”).

        Compare State v. Williams, 246 Ga. 788, 789 (1) (272 SE2d 725) (1980) (noting, in discussing the substance of the trial court’s decision, that “the trial judge’s grant of the appellees’ motion does not rest on the evidence or lack thereof adduced at trial”).

       We note in passing that if the dissent is correct in its assertion that OCGA § 5-7-1 (a) (4) is to be “strictly construed” in all circumstances, and right in its claim that Strickman is no longer binding precedent, then this Court arguably would lack jurisdiction to entertain any appeal by the State under the statute involving the suppression of photographic-lineup and/or courtroom identifications, as neither, strictly speaking, constitutes “evidence illegally seized.”

        Manders v. State, 281 Ga. App. 786, 788 (2) (a) (637 SE2d 460) (2006) (citation omitted).

        Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994) (citations omitted).

        See, e.g., Carter v. State, 297 Ga. App. 608, 610 (2) (677 SE2d 792) (2009).

       The State notes in its appellate brief that service of the motion to suppress by Smith’s counsel was “facially inadequate.” While this may indeed be the case, it is entirely beside the point. Regardless of whether the motion to suppress was properly served, the trial court was not authorized to bar the State from proffering evidence in opposition to Smith’s motion to suppress as a means of sanctioning the prosecutor or her office for failing to contest the motion in a timely manner.

        Cf. Boykin v. State, 264 Ga. App. 836, 840 (3) (592 SE2d 426) (2003) (holding that “before the harsh sanction of excluding the evidence will be imposed by the trial court, OCGA § 17-16-6 requires the defendant to show both that he was prejudiced and that the [Sítate acted in bad faith”); State v. Luttrell, 207 Ga. App. 116, 116 (427 SE2d 95) (1993) (holding that no statutory or case authority permits dismissals of criminal cases for want of prosecution).

        Cf. State v. Finkelstein, 170 Ga. App. 608, 609 (2) (317 SE2d 648) (1984) (holding that “ [discretion in regulating and controlling the business of the court is necessarily confided in the judge, and this court should never interfere with its exercise unless it is made to appear that wrong or oppression has resulted from its abuse”).

        State v. Conley, 273 Ga. App. 855, 855 (616 SE2d 174) (2005) (citation and punctuation omitted); see also State v. Gomez, 266 Ga. App. 423, 425 (1) (597 SE2d 509) (2004) (same); State v. Roddy, 231 Ga. App. 91, 93 (497 SE2d 653) (1998) (same).

        See Garlington v. State, 268 Ga. App. 264, 268 (1) (b) (601 SE2d 793) (2004) (“The test for determining whether a due process violation occurred in cases such as this is whether the identification procedure was so impermissibly suggestive as to give rise to a (very) substantial likelihood of irreparable misidentification.” (citation and punctuation omitted)); Dee v. State, 273 Ga. 739, 739 (545 SE2d 902) (2001) (holding that “[a] pre-trial procedure in which either the victim or another eyewitness confronts the accused or views his photograph in an effort ‘to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial!,]’ ” and that “[i]f such an identification procedure is ‘so unnecessarily suggestive and conducive to irreparable mistaken identification, the defendant is denied due process of law’ ” (citations and punctuation omitted)).

        See, e.g., Jones v. State, 273 Ga. 213,216 (2) (539 SE2d 143) (2000) (“When a trial court concludes that an identification procedure is impermissibly suggestive, the issue becomes whether, considering the totality of the circumstances, there was a substantial likelihood of irreparable misidentification!,]” and “[i]f not, then both the pre-trial and in-court identifications are admissible.”); Miller v. State, 270 Ga. 741, 743 (2) (512 SE2d 272) (1999) (“It is error to allow testimony concerning a pre-trial identification of the defendant if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification.”); see also People v. Bakari, 780 P2d 1089, 1091 (II) (A) (Colo. 1989) (holding that “[t]he district court’s order granting the defendant’s suppression motions did not serve the purpose of the exclusionary rule” because “the district court’s suppression order could not have provided a deterrent against illegal police searches!,]” and that “the district court’s order granting the defendant’s suppression motions was ‘tantamount to dismissing the charges against the defendant’ ”); State v. Reed, 421 So2d 754, 755 (Fla. App., Dist. 4, 1982) (holding that “fo]nly where prejudice will result to the accused should simple neglect or attorney error be sanctioned with the extreme remedy of granting a motion to suppress a confession”).

        See Grant v. State, 302 Ga. App. 661, 662-63 (1) (691 SE2d 581) (2010) (remanding case for evidentiary hearing on motion to suppress after trial court incorrectly denied defendant’s motion on ground that it was untimely); see also People v. Greenfield, 722 NW2d 254, 260-62 (IV) (B) (Mich. App. 2006) (holding that trial court abused its discretion in granting a defendant’s motion to suppress as a means of sanctioning the State’s prosecutor for an alleged discovery violation); State v. Fridy, 842 NE2d 835, 841 (Ind. App. 2006) (holding that “by using the motion to suppress as a sanction, the trial court committed error that resulted in prejudice to the State" (emphasis supplied)).

       The majority suggests that Berky and Strickman can be distinguished from one another because they involve different subsections of OCGA § 5-7-1 (a). However, neither Supreme Court decision predicates its analysis or bases its reasoning upon a particular subsection of OCGA § 5-7-1 (a); rather, both decisions refer to the statute in general terms in discussing the proper mode of construction. See Berky, 266 Ga. at 30 (“Construing OCGA § 5-7-1 (a) strictly against the State, as we are bound to do. . . .”); Strickman, 253 Ga. at 288 (“[W]e deem the enactment of the appeal statute to he remedial in nature. . . . Being remedial in nature, it should be construed liberally.”). Furthermore, distinguishing Berky from Strickman in the manner suggested by the majority would have the anomalous result of requiring courts to liberally and strictly construe different subsections of the same statute.


author: Doyle, Judge.

text:
    A10A1680, A10A1683.
    BARNETT v. FARMER et al.; and vice versa.
    (707 SE2d 570)
   Doyle, Judge.

Following a motor vehicle collision, Willie Farmer and Shirley Farmer sued Madison Childs Barnett for personal injuries and loss of consortium. A Bibb County jury awarded $171,063.29 to Willie and $340,702.01 to Shirley; the jury did not award either plaintiff damages for loss of consortium. Barnett appeals in Case No. A10A1680, arguing that the trial court erred by (1) excusing a juror for cause during the trial; (2) improperly charging the jury; (3) admitting improper character evidence; (4) denying Barnett’s motion for directed verdict as to Willie’s claim for damages for future surgery; and (5) admitting a particular exhibit without the proper foundation. The Farmers appeal in Case No. A10A1683, arguing that the trial court erred by denying their motion to excuse a juror and that the verdict awarding nothing to them on their claims for loss of consortium was contrary to the evidence. For the reasons that follow, we reverse.

Viewed in favor of the verdict, the evidence shows that on June 11, 2006, Barnett’s vehicle collided with the Farmers’ vehicle at an intersection in Bibb County. Both the Farmers and Barnett claimed that the traffic light was green in their respective direction as they proceeded through the intersection. The Farmers, who were injured, brought a negligence action against Barnett, and a Bibb County jury awarded monetary damages to the Farmers on each of their claims, excluding loss of consortium, and the trial court entered a judgment in accord with the verdict. These appeals followed.

Case No. A10A1680

1. Barnett contends that the trial court erred by admitting improper character evidence. We agree.

During the plaintiffs’ case-in-chief, before the Farmers called their pastor to the stand, Barnett moved to exclude the testimony of the pastor regarding the Farmers’ “veracity or truthfulness or character.” After hearing argument from counsel, the trial court ruled that it would allow the pastor to testify about his understanding of the Farmers’ injuries, as well as “their general reputation in the neighborhood for truthfulness or untruthfulness, and what is that general reputation. And then would you believe this person under oath.” The court prohibited, however, any testimony from the pastor regarding specific instances of the Farmers’ good character and truthfulness. The trial court explained that the basis for its ruling was the factual dispute between the parties and the implication from each side that the opposition was not being truthful.

During direct examination, counsel for the Farmers asked the pastor whether he was familiar with the Farmers’ “general reputation in the community for truthfulness,” and the pastor responded, “Their reputation in our church, as far as I know, is they always tell the truth. Best that I know.” The pastor also testified that he would believe the Farmers under oath.

This testimony was inadmissible. In Georgia, “until the adverse party attacks the credibility of a witness, either for bad character or because of contradictory statements, the party calling him can not introduce evidence in support of his character for veracity.” OCGA § 24-9-84 (2) specifically provides that “[ejvidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence or otherwise.” Here, the Farmers’ character for truthfulness had not been attacked — the pastor testified during the plaintiffs’ case-in-chief, before any defense witnesses, including Barnett, had testified. And contrary to the trial court’s ruling, the fact that Barnett and the Farmers each took the position that the light was green when they approached the intersection did not constitute an attack on the other’s character for truthfulness sufficient to open the door for truthful character evidence.

Pursuant to OCGA § 24-2-2, “[t]he general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” The Farmers’ claims did not involve the general character of the parties. As we have previously noted, “[i]n actions arising out of automobile collisions, the issue is the negligence or non-negligence of the operator at the time and place of the event, and each such transaction is to be ascertained by its own circumstances and not by the reputation or character of the parties.”

Thus, we hold that the trial court erred by admitting the testimony of the pastor regarding the Farmers’ reputation for truthfulness and that he would believe them under oath. And we cannot say that this error was harmless because the jury’s verdict was based in large part upon its determinations regarding the parties’ credibility.

2. Barnett also contends that the trial court erred by declining to charge the jury pursuant to OCGA § 51-12-33, which, as modified by the Tort Reform Act of 2005, requires apportionment of damages in certain tort actions. We agree.

Immediately before closing arguments, Barnett requested that the trial court give an apportionment charge regarding Shirley’s claims, and the trial court agreed to consider a relevant written request to the jury. Following closing argument, Barnett provided the trial court with the following written request to charge:

In the case of Shirley Farmer, if you find that the defendant was negligent so as to be liable to the plaintiff Shirley Farmer and that the plaintiff Willie C. Farmer also was negligent, thereby contributing to the plaintiff Shirley Farmer’s injury and damage, in such case you would be required to reduce the amount of damages otherwise awarded to plaintiff Shirley Farmer in proportion to the negligence of W C. Farmer.

The trial court declined to give the requested charge on the grounds that it was not timely and was not an accurate statement of the law.

OCGA § 51-12-33 provides, in part:

(a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.
(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.
(c) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.

Our role in construing legislation

is to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose. In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy. The Supreme Court of Georgia has instructed that the best indicator of the General Assembly’s intent is the statutory text it actually adopted and that as long as the statutory language is clear and does not lead to an unreasonable or absurd result, it is the sole evidence of the ultimate legislative intent.

Applying these principles to OCGA § 51-12-33, we conclude that the jury in this case should have been instructed to apportion the award of damages to Shirley according to its determination of the percentage of fault of Barnett and her husband, if any. As we have recently held, the trier of fact is required to apportion an award of damages under OCGA § 51-12-33 even if the plaintiff bears no fault. Here, because there was evidence from which the jury could have concluded that both Barnett and Willie were negligent, and it is a reasonable conclusion based on the verdict that the jury apportioned Willie’s award based on his own percentage of fault, it would be contrary to the clear intent of the legislature to require Barnett to pay for the full amount of Shirley’s damages for the same collision simply because she was a passenger in the car her husband was driving. Similarly, we reject the Farmers’ argument that application of the apportionment to this case violates the interspousal tort immunity doctrine. Our holding in no way requires Shirley to file suit against her husband, but instead, precludes her from recovering from Barnett that portion of her damages, if any, that a trier of fact concludes resulted from the negligence of her husband.

3. Barnett’s remaining claims of error are based on the evidence admitted at trial, not likely to recur during the retrial of the case, or in light of our holding in Division 1, moot.

Case No. A10A1683

4. The Farmers’ enumerations are also not likely to recur during the retrial of the case, and therefore, we do not address them.

Judgment reversed in both cases.

Andrews, J., concurs. Ellington, C. J., concurs in judgment only.

Decided March 10, 2011.

Bullard, Garcia & Wangerin, Daniel Bullard IV, Kevin A. Wangerin, Erin S. Corbett, for appellant.

Adams & Adams, Charles R. Adams III, Katherine L. McArthur, for appellees.

       See Ahmed v. Clark, 301 Ga. App. 426, 427 (688 SE2d 361) (2009).

       Willie was driving the Farmers’ vehicle.

       (Punctuation omitted.) Guest v. State, 201 Ga. App. 506, 508 (2) (411 SE2d 364) (1991). See also Miller v. Western &c. R. Co., 93 Ga. 480, 481 (21 SE 52) (1893).

       (Emphasis supplied.)

       See Miller, 93 Ga. at 401; Milich, Georgia Rules of Evidence (2nd Ed.), § 14:6, p. 263 (“The fact that the opponent contradicts the witness’s version of the facts is not necessarily the kind of impeachment that opens the door to rehabilitation of the witness’s credibility. If the contradiction suggests nothing more than that the witness may be honestly mistaken in his perceptions or opinions, the door has not been opened for witness rehabilitation as to general credibility. . . .”).

       (Punctuation omitted.) Grannemann v. Salley, 95 Ga. App. 778, 779 (1) (99 SE2d 338) (1957).

       We address this enumeration because it is likely to recur on retrial.

       Barnett requested a jury charge on apportionment for both plaintiffs’ claims, but the trial court denied the request. The trial court did, however, instruct the jury on the legal principles of comparative negligence and specifically charged that the jury should reduce Willie’s damages “in proportion to his negligence,” if any. On appeal, Barnett concedes “that the trial court gave the proper charge with regard to Mr. Farmer’s damages.” Thus, Barnett’s argument and our analysis regarding apportionment are limited to Shirley’s claims.

       Pursuant to Uniform Superior Court Rule 10.3, parties must submit requests to charge to the trial court “at the commencement of trial, unless otherwise provided by pre-trial order; provided, however, that additional requests may be submitted to cover unanticipated points which arise thereafter.” Because neither party argues the timeliness of Barnett’s written request on appeal and because we only address issues likely to recur on retrial, we decline to further address the timeliness issue.

       (Emphasis supplied.)

       (Punctuation and footnotes omitted.) Cavalier Convenience v. Sarvis, 305 Ga. App. 141, 142 (699 SE2d 104) (2010).

       See id. at 144 (1) (the plain language of OCGA § 51-12-33 (b) demonstrates “that the legislature did not intend for apportionment to be limited to those cases wherein the plaintiff was to some degree at fault”). See also McReynolds v. Krebs, 307 Ga. App. 330, 333 (1) (705 SE2d 214) (2010) (“under OCGA § 51-12-33, a trier of fact is required to apportion its award of damages among multiple defendants even when the plaintiff bears no fault”).

       For example, there was evidence that Barnett had a green light when he approached the intersection and that Willie failed to look to his left toward oncoming traffic before he proceeded through the intersection.

       The jury awarded Willie less than the full amount of the damages he sought.

       “Under the common law doctrine of interspousal tort immunity (codified at OCGA § 19-3-8), actions between spouses for personal torts committed by one spouse against the other are barred, except where the traditional policy reasons for applying the doctrine are absent.” Bassett v. Harrington, 247 Ga. App. 425 (543 SE2d 798) (2000).