author: Doyle, Judge.

text:
    A11A0216.
    FRANKLIN v. FIRST GEORGIA BANKING COMPANY.
    (712 SE2d 642)
   Doyle, Judge.

This case arises from an application for confirmation of three foreclosure sales filed pursuant to OCGA § 44-14-161 by First Georgia Banking Company (“First Georgia”) against Stanley Franklin. Franklin appeals the trial court’s final order confirming the sales in the amounts of $170,000, $48,000, and $300,000. He argues that the trial court erred by finding that the properties sold for their true market value because no evidence was introduced showing that a foreclosure sale ever took place or what prices were received for the properties at the alleged sales. For the reasons that follow, we reverse.

In a confirmation proceeding, the trial court sits as the trier of fact, and its findings will not be disturbed on appeal if there is any evidence to support them. Further, on appellate review, we do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court’s judgment.

So viewed, the record reveals that First Georgia filed a report for confirmation of sale under power on February 1, 2010. The report stated that “[o]n the first Tuesday in January 2010,” First Georgia auctioned three properties to which Franklin had signed deeds to secure debt in favor of First Georgia. The report contended that after Franklin defaulted on the notes, First Georgia thereafter foreclosed on the property under a power of sale provision in the deed to secure debt. The report contended that the three properties, known as the “Wells Drive Property,” the “Nashville Street Property,” and the “Dixie/Douglas Road Property” sold for $170,000, $48,000, and $300,000 respectively. In the report, First Georgia asked the trial court to confirm the sales and find that the properties sold for true market value.

At the confirmation hearing, First Georgia presented the publisher’s affidavits and copies of published notices of sale under power for the three properties as well as the testimony of two real estate appraisers. The parties did not stipulate to advertisement, notice, or regularity of the sale. At the close of First Georgia’s case, Franklin argued that the sales should not be confirmed because, among other things, there was no competent record evidence that the sales occurred or that the sales were regular. After a hearing, the trial court confirmed the sales, finding that the sales were properly handled and that true market values for the properties were $170,000, $48,000, and $300,000.

Franklin argues that the trial court erred by finding that the properties sold for their true market value because no evidence was introduced as to the regularity of the sales, no evidence was introduced showing foreclosure sales ever took place, and no evidence was introduced regarding the actual prices received for the properties at the alleged sales. Franklin contends that First Georgia produced only the notices of sale under power for the properties and the testimony of two appraisers, who provided evidence of the market value of the properties, but First Georgia failed to produce competent evidence as to the occurrence or outcome of the sales. We agree and reverse.

OCGA § 44-14-161, the statute governing nonjudicial foreclosures, provides:

(a) When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.
(b) The court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.

Decided June 23, 2011.

Robert G. McCurry, for appellant.

Minor, Bell & Neal, Jonathan Bledsoe, for appellee.

(c) The court shall direct that a notice of the hearing shall be given to the debtor at least five days prior thereto; and at the hearing the court shall also pass upon the legality of the notice, advertisement, and regularity of the sale. The court may order a resale of the property for good cause shown.

The confirmation statute requires the trial court to determine whether the sale under power was properly executed. Here, the trial court’s determination as to the regularity of the sales is not supported by any competent evidence in the record. Although the report to the judge contained allegations of fact concerning the sales, the report was not verified and not supported by testimony or other evidence at the hearing. Although First Georgia’s attorney stated that the properties sold for $170,000, $48,000, and $300,000, this statement was not competent evidence.

Judgment reversed.

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

       (Punctuation omitted.) 131 Ralph McGill Boulevard, LLC u. First Intercontinental Bank, 305 Ga. App. 493 (699 SE2d 823) (2010).

       (Emphasis supplied.)

       See OCGA § 44-14-161 (c).

       Cf. McInnis v. Community Bank & Trust, 306 Ga. App. 436, 437-438 (702 SE2d 734) (2010) (holding that the bank failed to present competent evidence that the sale under power was properly advertised). Compare Pine Grove Builders v. SunTrust Bank, 307 Ga. App. 764 (2) (706 SE2d 129) (2011) (holding that sufficient evidence supported the trial court’s confirmation of the sale under power because the bank produced testimony that the sale occurred from an eyewitness to the sale).

       (Punctuation and footnote omitted.) Belans v. Bank of America, 303 Ga. App. 35, 39 (2) (692 SE2d 694) (2010) (“[AJttorneys are officers of the court and their statements in their place, if not objected to, serve the same function as evidence. But this principle cannot be extended to convert otherwise incompetent hearsay into competent evidence”). Compare with Winstar Development v. SunTrust Bank, 308 Ga. App. 655, 662 (3) (708 SE2d 604) (2011) (physical precedent only) (attorney’s testimony that she witnessed a foreclosure sale was sufficient to support trial court’s determination that sale occurred).


source: Caselaw Access Project

author: Miller, Presiding Judge.

license: Public Domain

text:
    A11A0281.
    CANNON v. THE STATE.
    (712 SE2d 645)
   Miller, Presiding Judge.

A DeKalb County jury convicted Johnnie Lee Cannon, Jr., of bus hijacking (OCGA § 16-12-123 (a) (1) (A)), possession of a firearm during the commission of bus hijacking (OCGA § 16-11-106 (b) (1)), aggravated assault with a deadly weapon against the bus driver (OCGA § 16-5-21 (a) (2)), and possession of a firearm during the commission of aggravated assault (OCGA § 16-11-106 (b) (1)). Cannon contends that the trial court erred in denying his motion for a directed verdict upon the foregoing offenses and in limiting the expert testimony Cannon offered regarding eyewitness identification. Discerning no error, we affirm.

“The standard of review for the denial of a motion for directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction.” (Citation omitted.) Hester v. State, 282 Ga. 239, 240 (2) (647 SE2d 60) (2007).

Viewed in the light most favorable to the jury’s verdict (Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)), the evidence shows that on May 16, 2008, a MARTA bus was stopped at a DeKalb County intersection. The bus was empty except for the driver and one male passenger in the back. The bus driver saw a young woman, who appeared to be agitated, approach the bus door. As the bus driver let the woman on the bus, a green Mercury Marquis pulled up beside the bus in the left turn lane. Cannon got out of the car and walked to the bus door. Believing that Cannon and the young woman were together, the bus driver opened the door. Rather than getting on the bus, however, Cannon brandished a handgun at the bus driver and ordered the woman off. As Cannon drove away with the woman, the bus driver managed to write down the tag number of Cannon’s vehicle.

An NCIC computer check revealed that the vehicle Cannon drove was registered to his mother, with whom Cannon resided. The police located a vehicle the tag number of which matched that given by the bus driver in the driveway at Cannon’s address. Presented with a photo lineup, the bus driver immediately identified Cannon as the perpetrator. A search warrant was executed for the residence and the Mercury Marquis. In the residence, the police recovered a loaded automatic handgun on a table similar to that used at the scene. Fingerprints matching those of Cannon and clothing matching that which he wore at the scene were found in the Mercury Marquis.

1. Cannon claims that the trial court erred by denying his motion for a directed verdict as to the offenses of bus hijacking, aggravated assault, and two counts of possession of a firearm during the commission of such offenses, arguing that the evidence was insufficient to support his convictions thereof. We disagree.

(a) Bus Hijacking. “A person commits the offense of bus . . . hijacking when he or she . . . [sjeizes or exercises control by force or violence or threat of force or violence of any bus or rail vehicle within the jurisdiction of this state.” OCGA § 16-12-123 (a) (1) (A). Cannon was indicted with bus hijacking in that he “did by force, unlawfully exercise control of a bus.”

In this regard, Cannon argues that his conviction of bus hijacking cannot stand because the bus was stopped at a red light at the time of the incident, foreclosing any finding that he exercised control over the same. The record shows, however, that Cannon brandished a handgun in the open door of the bus as he ordered a passenger to get off. This, in conjunction with the bus driver’s testimony — that she did not feel free to drive away notwithstanding the red light because she felt her life was in danger and “didn’t want to take off in the bus and agitate [Cannon] and cause him to shoot” — authorized a rational trier of fact to conclude beyond a reasonable doubt that Cannon exercised control of the bus by force. “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. Thus, the trial court’s refusal to enter a directed verdict on this count of the indictment was not error.

(b) Aggravated Assault. Cannon claims that there was insufficient evidence upon which to find him guilty of aggravated assault under Count 5 of the indictment which charged that Cannon did “make an assault upon the person of [the bus driver] with a deadly weapon, to wit: a handgun by brandishing the handgun[.]” In such regard, driver Alston testified at trial that she was afraid when she saw the gun; that she felt “[her] life could be in danger or something”; and that she chose not to drive away for fear that he would shoot. Cannon argues, however, that his actions had not placed the bus driver in fear, because the statements she made to police failed to mention that she felt in danger or in fear upon observing the handgun Cannon brandished. Cannon also characterizes Alston’s testimony about being afraid as equivocal and points out that there is no evidence showing that she took “any steps to ensure her safety.” These arguments, however, are merely challenges to the weight of the evidence. “[A]n appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” (Citation, punctuation and footnote omitted.) Middlebrooks v. State, 277 Ga. App. 551 (627 SE2d 154) (2006). Given the bus driver’s testimony, we conclude that a rational trier of fact could have found Cannon guilty beyond a reasonable doubt of aggravated assault. See OCGA § 16-5-21 (a) (2) (“A person commits the offense of aggravated assault when he or she assaults: . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]”)

(c) Possession of a Firearm During the Commission of a Felony. Cannon argues that he cannot be found guilty of this offense if this Court reverses his felony convictions. The evidence shows, however, that Cannon committed the substantive offenses of bus hijacking and aggravated assault with a handgun, as above. Given the foregoing, the evidence, viewed to support the verdict, was sufficient for a rational trier of fact to have found Cannon guilty beyond a reasonable doubt of possession of a firearm during the commission of his felony convictions. OCGA § 16-11-106 (b) (1).

2. Cannon also complains of various limitations placed on the testimony of Cannon’s expert witness Heather Kleider, specifically, her testimony regarding the phenomenon of “transference.” Cannon argues that expert testimony as to transference could have established that the bus driver “may have seen [Cannon] in the area at the time that the alleged incident took place, but incorrectly transferred [Cannon’s] image onto that of the actual perpetrator.”

Where eyewitness identification of the defendant is a key element of the State’s case and there is no substantial corroboration of that identification by other evidence, trial courts may not exclude expert testimony without carefully weighing whether the evidence would assist the jury in assessing the reliability of eyewitness testimony and whether expert eyewitness testimony is the only effective way to reveal any weakness in an eyewitness identification.

(Citation and footnote omitted; emphasis supplied.) Johnson v. State, 272 Ga. 254, 257 (1) (526 SE2d 549) (2000). The admissibility of expert evidence on eyewitness identification, however, is a matter “within the trial court’s control subject to appellate review for abuse of discretion.” Id. at 256 (1).

Here, the trial court’s refusal to admit eyewitness expert testimony was supported by extensive corroborating evidence. The license tag number of the car driven by the perpetrator was that registered to Cannon’s mother; the tag number of the car in Cannon’s driveway matched the one driven by the perpetrator from the scene; fingerprints matching Cannon’s were found in the vehicle; a handgun matching the description of that used by the perpetrator was recovered from Cannon’s house; clothing fitting the description of that worn by the perpetrator was recovered from the car in Cannon’s driveway; and the bus driver unhesitatingly picked Cannon out of a photographic lineup and identified him in court. Further, Cannon presented no evidence indicating that the bus driver saw or could have seen any other person at the time the instant offenses took place. Consequently, there was no factual basis for allowing testimony regarding the potential for misidentification based on transference theory, and the trial court did not abuse its discretion in rejecting expert testimony about such theory. Howard v. State, 286 Ga. 222, 228 (4) (686 SE2d 764) (2009); Talton v. State, 254 Ga. App. 111, 112 (1) (561 SE2d 139) (2002).

Decided June 23, 2011

Drew Findling, for appellant.

R. Javoyne Hicks White, District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.


text:
    A11A0342.
    JAN-PRO FRANCHISING INTERNATIONAL, INC. v. DEPIANTI.
    (712 SE2d 648)
   Doyle, Judge.

Jan-Pro Franchising International, Inc. (“JPI”) brought this declaratory judgment action against Giovani Depianti and Hyun Ki Kim, seeking, in relevant part, a judgment that Depianti and Kim were not its employees under the Massachusetts Independent Contractor Statute (“MICS”)- The parties filed cross-motions for summary judgment, and the trial court found that issues of fact precluded summary judgment as to Kim, but the court granted summary judgment to Depianti. JPI now appeals the ruling as to Depianti, and for the reasons that follow, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that JPI created a master franchise plan for commercial cleaning businesses. JPI entered into franchise agreements with other companies (“regional franchisees”) that would be assigned the rights to use JPI’s franchise branding and processes in a designated region in exchange for certain fees. Those regional franchisees would then enter into unit franchise agreements with individuals or companies (“unit franchisees”) who would perform cleaning services for client accounts provided by the regional franchisee in exchange for specified fees. In the unit franchise agreement, the regional franchisee promised to provide a particular volume of cleaning business to each unit franchisee.

Depianti, who lived and worked in Massachusetts, became a unit franchisee in the JPI franchise system. After a dispute arose between Depianti and his regional franchisee, he and other unit franchisees initiated arbitration proceedings in Massachusetts asserting claims that they should be classified as employees and not independent contractors, and were therefore eligible for more favorable treatment under Massachusetts law. JPI filed a complaint in Massachusetts to avoid participation in the arbitration, and Depianti dismissed JPI from the arbitration. Thereafter, JPI, which is headquartered in Alpharetta, Georgia, filed this action in the Fulton County Superior Court, seeking to clarify the employment status of Depianti as a unit franchisee. After a hearing, the trial court granted summary judgment to Depianti, ruling that he was JPI’s employee under the MICS. JPI now appeals.

The MICS provides as follows, in relevant part:

For the purpose of this chapter [pertaining to labor and industries] and chapter 151 [pertaining to minimum fair wages], an individual performing any service, except as authorized under this chapter, shall be considered to be an employee under those chapters unless:
(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and
(2) the service is performed outside the usual course of the business of the employer; and,
(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

Under Massachusetts law, the putative employer has the burden to overcome a rebuttable presumption that “any person performing services for another is an employee unless the employer meets the three prong test” above.

(a) Free from control and direction. We have not encountered facts similar to the present scenario in cases applying the MICS. We note at the outset that the MICS does not on its face limit its application to any one employer. Thus, a literal reading that “employee” includes any “individual performing any service” who is not “free from control and direction in connection with the performance of the service” would mean every worker is necessarily an employee. Because some form of control — by a client or otherwise — is inherent in the performance of every service, such a strict reading of the statute would yield the absurd result that every worker is an employee, no matter who exerts the control. Thus, implicit in this language must be some control by the employer, even though the statutory language fails to explicitly refer to the employer — a worker for Company A cannot be deemed an employee of Company B simply because the worker performs “any service” that is subject to some control, albeit by Company A.

Turning to this case, the undisputed facts show that Depianti performs work as a unit franchisee pursuant to a contract with the regional franchisee, a company called BradleyMktg Enterprises, Inc. (“BME”). It is undisputed that BME is a separate entity, created by persons unaffiliated with JPI, and it obtained its regional franchise from JPI. BME makes its own hiring and firing decisions without control by JPI. BME holds the accounts serviced by Depianti, BME pays Depianti, and BME invoices customers serviced by Depianti. JPI participates in none of this activity. While Depianti, as a franchisee of BME, implements a business model established by JPI, Depianti’s performance of cleaning services is not controlled by JPI, which is not a party to the agreement between BME and Depianti. Although JPI is a third-party beneficiary to that agreement, and it had the ability to enforce the contract between BME and Depianti to protect the franchise branding and its interest as a third-party beneficiary, it was not obligated to pay Depianti, and its status as a third-party beneficiary and national franchisor did not make it a party to that agreement in the sense of having control over Depianti’s work. Thus, at least with respect to JPI, it has shown that Depianti was sufficiently free from control as to satisfy the first element of the MICS analysis.

(b) Service performed outside the usual course of the employer’s business. JPI must also show that the service Depianti performed was outside the usual course of JPI’s business. Based on the particular factual scenario here, we conclude that this burden was met.

The record shows that JPI’s usual business was establishing a trademark and cleaning system that was then licensed to regional franchisees like BME, which then licensed rights to employ the JPI system to serve customer accounts provided by BME. Depianti argues that marketing language on JPI’s website and recitals in its master franchise agreement to the effect that it was in the business of operating commercial cleaning businesses demands a finding that, like him, JPI’s usual business was providing cleaning services. Nevertheless, these labels do not overcome the facts shown by JPI — that its usual course of business was not to compete with unit franchisees for cleaning contracts. Instead, JPI created a business model that it licensed to regional franchisees, who later marketed the business model and customer accounts to unit franchisees such as Depianti. We recognize that the franchise model inherently involves some overlap between the business model created by the master franchisor and the ultimate business run by the unit franchisee. But here, JPI did not market cleaning services to clients, it did not invoice clients for cleaning services, it did not collect payment from clients for cleaning services, and it did not pay Depianti for any services. Thus, at least with respect to JPI, a nation-wide master franchisor, the service provided by Depianti was not in the same scope of business conducted by JPI.

(c) Worker is customarily engaged in an independently established occupation or business. With respect to the final criterion, we must

consider whether the service in question could be viewed as an independent trade or business because the worker is capable of performing the service to anyone wishing to avail themselves of the services or, conversely, whether the nature of the business compels the worker to depend on a single employer for the continuation of the services.

The ultimate question is “whether the worker is wearing the hat of an employee of the employing company, or is wearing the hat of his own independent enterprise.”

Here, for essentially the same reasons that JPI has demonstrated factors one and two, the third factor is also satisfied. The nature of the three-layer franchise arrangement necessarily means that JPI and Depianti are engaged in operating independent businesses. Depianti’s unit franchise agreement allows him to expand his operation and perform work for several clients, although the accounts would remain BME’s property. Indeed, were the comparison between BME and Depianti, we might conclude that Depianti “wears BME’s hat,” because under the unit franchise agreement, BME holds the customer accounts, invoices customers, receives customer payments, and even provides backup employees in the event that an emergency prevents Depianti from providing cleaning service to a client. But with respect to JPI, Depianti is not an employee because his business remains separate from JPI’s operations. JPI is not a party to the unit franchise agreement, and thus, JPI does not limit or control the scope of Depianti’s services or the continuation of his business.

Decided June 23, 2011

Kilpatrick, Townsend & Stockton, Betsy C. Neal, Stephen E. Hudson, for appellant.

Janet E. Hill, for appellee.

Further, Depianti invested capital and established a business to provide cleaning services in a relationship with BME, and JPI operates the separate master-franchising business. While Depianti’s business model and branding was developed by JPI, Depianti has established a business separate from JPI, and Depianti operates that business without intervention by JPI. JPI’s status as the national franchisor does not change this result because JPI is not a party to the unit franchise agreements; JPI does not pay unit franchisees; and JPI does not control the unit franchisees’ work, clients, or accounts.

Finally, we note that in Depianti’s appellate brief, even as he makes forceful arguments to the contrary, he concedes that “[i]f he did not perform any services for [JPI], then [JPI] is not his employer.” For this basic reason, we conclude that JPI is not Depianti’s employer with respect to the MICS based on the record before us. The trial court erred by ruling otherwise, and its order denying summary judgment to JPI and granting summary judgment to Depianti is reversed.

Judgment reversed.

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

       Mass. Gen. Laws ch. 149, § 148B.

       JPI does not enumerate error or provide argument in its brief challenging the trial court’s finding of factual issues with respect to Kim. Therefore, we do not address the trial court’s ruling as to Kim. See Court of Appeals Rule 25 (c) (2); Textile Rubber &c. Co. v. Thermo-Flex Technologies, 308 Ga. App. 89, 95, n. 2 (706 SE2d 728) (2011).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       “Proper classification of an individual as an independent contractor or an employee may determine whether an employer has violated certain provisions of Massachusetts labor laws, such as an employee’s right to overtime pay and workers’ compensation benefits.” Fucci v. Eastern Connection Operating, No. 2008-2659 (Mass. Super. Ct. Middlesex Sept. 21, 2009) (order granting motion for partial summary judgment).

       Depianti did not appeal the portion of the trial court’s order finding that it had personal jurisdiction over him.

       The trial court’s order states that it granted Depianti summary judgment “on his Massachusetts state law claim.” Although Depianti filed no claim in the superior court, we construe this as a ruling favorable to Depianti’s trial court argument that he was JPI’s employee under the MICS.

       (Punctuation omitted.) Mass. Gen. Laws ch. 149, § 148B (a). The unit franchise agreement provides that it will be governed according to the laws of Massachusetts. The trial court did not conduct a choice of law analysis and neither party challenges the applicability of Massachusetts law.

       (Punctuation omitted.) Chaves v. King Arthur’s Lounge, Inc., No. 07-2505 (Mass. Sup. Ct. Suffolk July 20, 2009) (order addressing cross-motions for summary judgment). “Courts have had limited opportunity to interpret the independent contractor law. Because [the MICS] is nearly identical to [Mass. Gen. Laws ch.] 151A, § 2, the statute used by the Division of Unemployment Assistance, courts have relied on case law analyzing the latter statute to interpret the former.” Id. at n. 3. Where appropriate and necessary, we have done the same here.

        See Athol Daily News v. Bd. of Review &c., 439 Mass. 171, 180 (3) (c) (786 NE2d 365) (2003) (disapproving of an overly strict, literal interpretation of the statute that would deny independent contractor status to nearly all workers and render superfluous any examination of other criteria in the test).

       Cf. Juarez v. Jani-King of California, Inc., No. 09-3495 at *10 (IV) (E) (1) (N.D. Cal. Mar. 4, 2011) (order granting motion to file counterclaim and finding lack of control despite franchise structure).

       See, e.g., Motorsport Engineering v. Maserati SPA, 316 F3d 26, 29 (1st Cir. 2002) (interpreting contract governed by Massachusetts law and noting the difference between a third-party beneficiary and a party to the contract).

       See, e.g., Awuah v. Coverall North America, 707 FSupp.2d 80, 83 (III) (A) (D. Mass. 2010) (concluding that cleaning services were performed in the usual course of franchisor/employer’s business because the franchisor/employer itself held the accounts and marketed and sold the very cleaning services provided by its immediate franchisee/employee).

       Compare id.

        Athol Daily News, 439 Mass. at 181 (3) (c).

       (Punctuation omitted.) Id.


author: Dillard, Judge.

text:
    A11A0412.
    A11A0447.
    YOUNG v. THE STATE. WILLIAMS v. THE STATE.
    (712 SE2d 652)
   Dillard, Judge.

In these companion cases, Frank E. Young, Jr., and Keithney S. Williams appeal from their convictions following a stipulated bench trial on trafficking in marijuana. Young and Williams argue that the trial court erred in denying their motions to suppress the drug evidence on the ground that it was unlawfully seized after the arresting officer impermissibly expanded the scope of the initial traffic stop. We disagree and affirm.

In reviewing the denial of a motion to suppress physical evidence, we construe the evidence in the light most favorable to the trial court’s findings and judgment. To the extent that the evidence is in conflict, “we will not disturb the lower court’s ruling if there is any evidence to support its findings, and we accept that court’s credibility assessments unless clearly erroneous.” We, nonetheless, review de novo the trial court’s application of law to the undisputed facts.

So viewed, the evidence shows that on June 24, 2007, an officer with the Georgia State Patrol stopped a 1996 Freightliner tractor truck on Interstate 59 after noticing the truck’s cracked windshield. Upon approaching the cab of the truck, the officer observed that the truck’s flatbed was empty and the transport chains were covered in an excessive amount of rust, indicating that they had not been used recently. He further observed two safety infractions, namely low tire tread and improperly secured air hoses. When Williams, the driver, opened the door of the cab, the officer immediately noticed a strong odor of perfume emanating from the interior of the truck. Based upon his training and experience, the officer knew that drug traffickers frequently use air fresheners and other strong fragrances to mask the smell of narcotics, and thus became suspicious.

The officer requested that Williams retrieve his driver’s license, insurance, and registration, as well as the paperwork associated with a commercial vehicle, including a logbook, cab card, and medical card. As the officer spoke with Williams, he observed that Young, the passenger, avoided making eye contact. The officer asked Williams to exit the cab and, as he did so, the officer inquired as to the purpose of his trip. The officer’s suspicions were piqued when Williams indicated that he was driving from Houston, Texas, to Knoxville, Tennessee, but was not hauling any goods on the flatbed of his truck — a costly undertaking for a truck driver. Williams claimed that he planned on buying a trailer in Knoxville and hauling it back to Houston, although he could not identify the place where he intended to make this significant purchase. The officer requested that Williams sit on the guardrail while he processed the citations for the windshield and other safety infractions.

Upon returning to his patrol car, the officer immediately requested a K-9 unit to conduct a free-air scan of the truck, and then ran a computer check on Williams’s license, as well as a check for outstanding warrants and criminal histories on both Young and Williams.

Approximately ten minutes after the officer’s call, the K-9 unit arrived. The K-9 handler received the officer’s permission to begin the free-air scan of the truck, and the dog alerted to the driver’s side door, indicating that it sensed the presence of narcotics. At that time, the officer was in the process of obtaining Young and Williams’s respective criminal history information. The K-9 handler then searched the truck and discovered more than 108 pounds of marijuana located under the bunk in the truck’s cab. This entire episode, from the time of the stop to the discovery of the drugs, lasted 23 minutes.

Thereafter, Young and Williams both moved to suppress the drug evidence on the ground that the officer impermissibly expanded the scope of the initial traffic stop when he (1) inquired into the purpose of their trip, and (2) unlawfully detained them while waiting for the K-9 unit. Following a hearing, the trial court denied these motions, then convicted Young and Williams of the crimes charged against them pursuant to a stipulated bench trial.

Young and Williams argue on appeal that the trial court erred in denying their motions to suppress. We disagree.

It is axiomatic that a police officer who observes a traffic violation is authorized to conduct a traffic stop of the vehicle in question. Once a valid traffic stop has been effected, the Fourth Amendment prohibits the officer from unreasonably prolonging the stop beyond the time required to fulfill the purpose of the stop without a reasonable articulable suspicion of other illegal activity. But a reasonable time to conduct a traffic stop includes the time necessary for the officer to run a computer check on the validity of the driver’s license and registration, and to check for outstanding warrants and/or criminal histories on the driver and other occupants. The law further allows the officer to question the vehicle’s driver and/or its occupants during the course of the stop, and even to “lawfully ask questions unrelated to the purpose of a valid traffic stop, so long as the questioning does not unreasonably prolong the detention.” And finally, an officer may order a free-air search of the area surrounding the vehicle by a trained canine without implicating the Fourth Amendment, if the same is performed without unreasonably extending the stop. As with any Fourth Amendment analysis, the touchstone of our inquiry is the reasonableness of the officer’s conduct, which is measured in objective terms by examining the totality of the circumstances.

Here, Young and Williams do not contest the legality of the traffic stop, nor do they challenge the search after the K-9 alerted to the cab of the truck; thus, the only question before us is whether the officer’s conduct prior to the search amounted to an unlawful detention. And on the record before us, we conclude that it did not.

After stopping the commercial truck due to a cracked windshield, the officer requested from Williams the relevant paperwork, asked him to step out of the cab of the truck, and engaged him in a brief conversation about the purpose of his trip. As discussed supra, each of these actions fell squarely within the officer’s lawful authority to effect the traffic stop. And because the officer’s suspicions were piqued by his observations of the truck’s condition, the strong scent of perfume emanating from the cab, Young’s demeanor, and Williams’s responses to the officer’s brief questioning, the officer was then prompted (and authorized) to request a K-9 unit and to run criminal histories on both men. Moreover, there is no evidence to suggest that the officer delayed in making either query. And the officer’s testimony unequivocally establishes that the traffic stop was ongoing when the K-9 unit arrived approximately ten minutes later and, indeed, that he was still in the process of obtaining the results of Young’s and Williams’s respective criminal histories when the dog alerted its handler to the presence of narcotics. Under these circumstances, Young and Williams have failed to establish that the actions of the officer unreasonably expanded the scope or duration of the traffic stop. It follows then, that the trial court did not err in denying their motions to suppress.

Decided June 23, 2011.

Cook & Connelly, Rex B. Abernathy, for appellant (case no. A11A0412).

Johnny R. Dennis, for appellant (case no. A11A0447).

Herbert E. Franklin, Jr., District Attorney, Bruce E. Roberts, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

       Young and Williams were also both charged with and convicted of the offenses of possession with intent to distribute marijuana and possession of marijuana, but those convictions merged with their respective trafficking convictions for sentencing purposes.

        Sommese v. State, 299 Ga. App. 664, 665 (683 SE2d 642) (2009).

        Id. (citation and punctuation omitted).

        Id.

        See, e.g., State v. Menezes, 286 Ga. App. 280, 282 (2) (648 SE2d 741) (2007) (“When the arresting officer observed a traffic violation, he was authorized to initiate a traffic stop.”); Hines v. State, 214 Ga. App. 476, 477 (448 SE2d 226) (1994) (“It is evident that the stop of a vehicle is authorized if an officer observes the commission of a traffic offense.” (citation omitted)).

        See, e.g., Salmeron v. State, 280 Ga. 735, 736 (1) (632 SE2d 645) (2006).

         See, e.g., Rosas v. State, 276 Ga. App. 513, 517-18 (1) (c) (624 SE2d 142) (2005); see also Salmeron, 280 Ga. at 737 (1) (“It does not unreasonably expand the scope or duration of a valid traffic stop for an officer to prolong the stop to immediately investigate and determine if the driver is entitled to continue to operate the vehicle by checking the status of the driver’s license, insurance, and vehicle registration.” (citation and punctuation omitted)).

        See, e.g., Rosas, 276 Ga. App. at 517-18 (1) (c); see also Sommese, 299 Ga. App. at 669 (1) (b) (“A reasonable time [to conduct a traffic stop] also includes the time necessary to run a computer check to determine whether there are any outstanding arrest warrants for the driver or the passengers.” (citation and punctuation omitted)).

        Matthews v. State, 294 Ga. App. 836, 838 (2) (670 SE2d 520) (2008) (citation omitted); see Salmeron, 280 Ga. at 736 (1) (“]T]he dispositive factor ... is not the nature or subject of the officer’s questioning, but whether that questioning took place during fa defendant’s] otherwise lawful detention for committing the traffic violations in the officer’s presence.”); Hayes v. State, 292 Ga. App. 724, 729 (2) (c) (665 SE2d 422) (2008) (“[A]ny questioning or small talk, of course, prolongs the detention];] [t]he question is whether the prolongation is reasonable or unreasonable.” (footnote omitted)); see also Muehler v. Mena, 544 U. S. 93, 101 (125 SC 1465, 161 LE2d 299) (2005).

        See, e.g., Bowens v. State, 276 Ga. App. 520, 521-22, n.3 (623 SE2d 677) (2006); Byers v. State, 272 Ga. App. 664, 666 (613 SE2d 193) (2005).

        See, e.g., Johnson v. State, 299 Ga. App. 474, 478 (682 SE2d 601) (2009).

        See generally Salmeron, 280 Ga. at 737 (1); Sommese, 299 Ga. App. at 669 (1) (b); Matthews, 294 Ga. App. at 838 (2); Rosas, 276 Ga. App. at 517-18 (1) (c).

        See generally Sommese, 299 Ga. App. at 669 (1) (b); Bowens, 276 Ga. App. at 521-22, n.3; Rosas, 276 Ga. App. at 517-18 (1) (c); Byers, 272 Ga. App. at 665-66.

        See, e.g., Sommese, 299 Ga. App. at 670 (1) (c) (rejecting appellant’s claim that traffic stop was unreasonably prolonged by officer waiting for back-up when officer was otherwise engaged in other tasks and had not yet completed citation paperwork when back-up arrived); Bowens, 276 Ga. App. at 521-22, n.3 (upholding as reasonable free-air search of vehicle conducted while officer awaited results of license check); Byers, 272 Ga. App. at 665-66 (concluding that free-air search conducted while officer was writing traffic citation was lawful and did not expand the scope of the stop). Compare State v. Thompson, 256 Ga. App. 188, 189-90 (569 SE2d 254) (2002) (excluding evidence obtained as a result of officer’s continued questioning of defendant after citation had been written and license returned defendant, resulting in a 20-minute delay while waiting for drug dog after traffic stop had concluded); Gonzales v. State, 255 Ga. App. 149, 150 (564 SE2d 552) (2002) (holding that officer went beyond permissible scope of investigation when he questioned defendants after traffic stop had ended but lacked reasonable suspicion to do so).


text:
    A11A0430.
    VALDEZ v. THE STATE.
    (712 SE2d 656)
   Miller, Presiding Judge.

Following a jury trial, Carlos Valdez was convicted of trafficking in cocaine (OCGA § 16-13-31 (a) (1)). The trial court denied Valdez’s motion for new trial, as amended. On appeal, Valdez contends that (i) the evidence was insufficient to sustain his conviction and (ii) the trial court abused its discretion in failing to excuse a prospective juror. We discern no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant is no longer entitled to a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only the sufficiency of the evidence in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation omitted.) Martinez v. State, 303 Ga. App. 71 (1) (692 SE2d 737) (2010). “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citations and punctuation omitted.) Navarro v. State, 293 Ga. App. 329 (667 SE2d 125) (2008).

So viewed, the trial evidence shows that in December 2007, deputies in the Multi-Agency Narcotics Squad (“MANS”) of the Cherokee County Sheriffs Office received information that a confidential informant was willing to assist in an undercover operation to purchase an ounce of cocaine. The deputies met with the informant, who made arrangements to meet the drug suspects at a designated location. The deputies established an action plan and wired the principal agent with a concealed electronic transmitting device. Thereafter, the deputies traveled to the designated location.

Upon arriving, the deputies observed a vehicle parked at the location. Valdez was the driver of the vehicle and his co-defendant, Honorato Ortiz-Hernandez, occupied the back passenger seat. Valdez’s other co-defendant, Eduardo Garcia Castaneda, stood outside the vehicle and used his cell phone to communicate with the informant and the principal agent.

The informant and the principal agent approached Castaneda to consummate the transaction. Upon observing them, Valdez identified the principal agent as a police officer and warned his co-defendants. Castaneda refused to complete the transaction with the principal agent. As a result, the principal agent backed away, gave $850 in MANS official funds to the informant for use in the transaction, and stood in front of the vehicle while continuing to observe the transaction.

Castaneda then entered the front passenger side of the vehicle, obtained a bag from co-defendant Hernandez, and handed the bag to the informant. In exchange, the informant gave Castaneda the MANS official funds. Castaneda handed the funds to Valdez. After the transaction was completed, the principal agent gave a takedown signal, prompting the deputies to rush in and arrest Valdez, Castaneda, and Hernandez.

Following the arrests, the deputies recovered the MANS official funds from the center console of the vehicle. The bag that was delivered during the transaction was submitted to the State Crime Lab for testing. The test results revealed that the substance in the bag was cocaine, weighing approximately 28.27 grams with a purity of approximately 36.1 percent.

After being read their Miranda rights, Valdez, Castaneda, and Hernandez agreed to be interviewed by the deputies. Valdez claimed that he had driven to the location to purchase cigarettes at a nearby store. However, the deputies did not find any cigarettes during their search of the vehicle. As the interview progressed, Valdez described the drug transaction and further admitted that he had taken the MANS official funds from Castaneda during the consummation of the transaction.

Valdez, Castaneda, and Hernandez were jointly charged with trafficking in cocaine. Castaneda entered a guilty plea and testified as a State’s witness at the joint trial of Valdez and Hernandez. He testified that he and his co-defendants knew that they would be engaging in a drug transaction when they arrived at the location. He stated that they were parked at the location for seven to ten minutes, waiting for the informant to arrive for the transaction. He further conceded that he had engaged in the drug exchange with the informant.

1. Valdez contends that the evidence, as set forth above, was insufficient to sustain his conviction of the drug trafficking offense. He argues that there was no evidence that he had possession of the cocaine and the circumstantial evidence failed to exclude every other reasonable hypothesis save that of his guilt. We disagree.

A person commits the offense of trafficking in cocaine when he “knowingly sells, manufactures, delivers, or brings into this state or ... is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine[.]” OCGA § 16-13-31 (a) (1). “Under Georgia law, the possession required for a conviction for drug trafficking does not mean that the defendant had to be holding the contraband in his hand or have it physically on his person.” (Citation and punctuation omitted.) Navarro, supra, 293 Ga. App. at 331. Rather, “[a] defendant’s joint constructive possession of contraband with another will sustain a conviction.” (Citations omitted.) Martinez, supra, 303 Ga. App. at 73 (1).

Moreover, a person who intentionally aids or abets in the commission of a crime is a party thereto and may be charged with and convicted of the crime. See OCGA § 16-2-20 (a), (b) (3); Navarro, supra, 293 Ga. App. at 331.

It is true mere presence at the scene of a crime, even coupled with knowledge and approval, is insufficient to convict one of being a party. However, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. A person will not be presumed to act with criminal intention, but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. If the totality of circumstantial evidence is sufficient to connect the defendant with the possession of the drugs, the conviction will be sustained, even though there is evidence to authorize a contrary finding.

(Citations and punctuation omitted.) Martinez, supra, 303 Ga. App. at 73-74 (1).

Here, the evidence showed that Valdez participated and intentionally aided in the commission of the drug trafficking offense by driving his co-defendants and the cocaine to the pre-arranged location for the transaction, warning his co-defendants that the principal agent was a police officer, and taking possession of the funds used for the transaction. Contrary to Valdez’s assertion that he was merely present at the scene and had no intent to participate in the crime, his co-defendant testified that they knew that they were at the location to engage in a drug transaction and that they had waited for the informant to arrive at the location so that the transaction could occur. Based upon this evidence reflecting Valdez’s actions and the totality of the circumstances of the transaction, the jury was authorized to find that Valdez was in joint constructive possession of the cocaine and was a party to the crime. See Martinez, supra, 303 Ga. App. at 74-75 (1); Navarro, supra, 293 Ga. App. at 331-332.

Valdez nevertheless points to conflicting evidence and contends that the circumstantial evidence failed to exclude every other reasonable hypothesis save that of his guilt, as required by OCGA § 24-4-6. His contentions are unavailing. “It is the jury’s role to resolve evidentiary conflicts, determine witness credibility, and decide the reasonableness of hypotheses based upon the circumstantial evidence.” (Citation omitted.) Martinez, supra, 303 Ga. App. at 74 (1).

Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.

(Citations and punctuation omitted.) Wright v. State, 302 Ga. App. 332, 333 (690 SE2d 654) (2010). The trial evidence, as set forth above, authorized the jury to find that the only reasonable hypothesis pointed to Valdez’s guilt of the drug offense.

2. Valdez further contends that the trial court erred in failing to excuse a prospective juror on the basis of his alleged bias. Again, we discern no error.

As an initial matter, the record shows that the voir dire of the prospective jurors was not fully transcribed. Significantly, the individual examination and responses of the prospective jurors is not reflected in the record. Our review is limited to the available portions of the transcript that set forth the challenge raised to the prospective juror at issue, the arguments of counsel, and the trial court’s ruling as to the challenge.

The record shows that following voir dire, defense counsel raised a challenge to a prospective juror, whose son was an agent involved in the undercover operation and was a trial witness for the State. Counsel asserted that the potential juror had expressed that he would believe his son over other witnesses in the case. The State argued that notwithstanding the prospective juror’s initial response, his further responses reflected that he could listen to the evidence and be impartial in deciding the case. The trial court denied the defense challenge, recalling the voir dire responses and finding that the prospective juror had emphatically stated that he could be objective. Since his challenge was unsuccessful, Valdez exercised a peremptory strike to excuse the juror.

“[T]he decision to strike a juror for cause lies within the sound discretion of the trial court.” (Citations and punctuation omitted.) Croom v. State, 217 Ga. App. 596, 598 (2) (458 SE2d 679) (1995). Valdez acknowledges that the prospective juror was not subject to disqualification for principal cause under OCGA § 15-12-163 (b) (4) since the deputy was not the prosecutor in the case, but was merely one of the officers involved in the undercover operation. He nevertheless contends that in light of the familial connection and the expressed belief in his son’s veracity, the prospective juror should have been excused. Notwithstanding his contentions, no abuse of the trial court’s discretion has been shown.

Decided June 23, 2011.

H. Maddox Kilgore, for appellant.

Garry T. Moss, District Attorney, Cliff Head, Lawton W. Scott, Assistant District Attorneys, for appellee.

“Relationship to a witness is not per se a ground for excusing a prospective juror.” (Citations and punctuation omitted.) Croom, supra, 217 Ga. App. at 598 (2). See also Spence v. State, 238 Ga. 399, 400 (233 SE2d 363) (1977) (concluding that no reversible error occurred where the jury foreman was the father of the officer who investigated the case for the State and appeared as one of the State’s chief witnesses). As such, the familial relationship between the prospective juror and the deputy involved in the case did not mandate that the juror be excused. Id.

Moreover, “before a juror can be disqualified for cause, it must be shown that an opinion held by the [prospective] juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.” (Citations and punctuation omitted.) Croom, supra, 217 Ga. App. at 598 (2). The trial court determined that the prospective juror did not hold a fixed and definite opinion and that he was capable of being impartial and objective in deciding the case. On appeal, we must deem the trial court’s ruling in this regard as proper absent some manifest abuse of discretion. See Taylor v. State, 243 Ga. 222, 224 (2) (253 SE2d 191) (1979). In the absence of a full transcript setting forth the prospective juror’s specific voir dire responses, we cannot say that the trial court abused its discretion in its finding. Accordingly, this claim of error fails. See Croom, supra, 217 Ga. App. at 598 (2); Jones v. State, 184 Ga. App. 4, 6-7 (2) (360 SE2d 599) (1987) (concluding that “[although the juror’s first response to the [voir dire] questions . . . indicated a possible bias or prejudice on her part, the juror’s opinion was not shown to be so fixed and definite that it would not be changed by the evidence or charge of the court upon the trial of the case.”) (citations and punctuation omitted).

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

       We note that since an appellant carries the burden of showing error by the record, he must have voir dire transcribed if he seeks to raise issues related to voir dire on appeal. See Bryant v. State, 270 Ga. 266, 271, n. 18 (507 SE2d 451) (1998).

       OCGA § 15-12-163 (b) (4) provides that a prospective juror may be challenged for cause when “the juror is so near of kin to the prosecutor, the accused, or the victim as to disqualify the juror by law from serving on the jury). A prosecutor is defined as “one who instigates a prosecution by making an affidavit charging a named person with the commission of a penal offense, on which a warrant is issued or an indictment or accusation is based.” (Citations and punctuation omitted.) Spence v. State, 238 Ga. 399, 400 (233 SE2d 363) (1977). The fact that one is heavily involved in the transaction out of which the prosecution flows does not render him as the “prosecutor.” Id. It is undisputed that the deputy was not the principal agent or the prosecutor in the case.


author: Phipps, Presiding Judge.

text:
    A11A0563.
    AMADOR v. THE STATE.
    (713 SE2d 423)
   Phipps, Presiding Judge.

Melvin Alexander Flores Amador was convicted of aggravated assault, aggravated battery, and two counts of first degree cruelty to children for acts committed against his two-year-old daughter, A. R. He contends that the trial court erred in failing to strike a prospective juror for cause, in denying his motion to suppress his custodial statement, in excluding a witness’s testimony on hearsay grounds, and in allowing an expert witness to testify to an issue within the jury’s province. We find no merit in these claims of error, and affirm.

The evidence showed that on September 22, 2008, Amador lived in an apartment with Amanda Swain and their two children, A. R. and an infant. A neighbor testified that, late that evening, he was outside near Amador’s apartment when he heard a child crying and screaming “stop, stop,” Amador loudly talking in an angry voice, and sounds of spanking. While this was occurring, Swain was standing outside on the apartment’s porch.

A friend of Swain testified that, the following morning, she picked up Swain from the apartment and the two spent some time at the friend’s house and ran some errands; they returned to the apartment in the afternoon. Amador was sitting on the front porch of the apartment when they returned, and the friend saw him run inside. He came back outside and yelled for Swain. Swain and the friend ran into the apartment, where the friend observed A. R. lying unconscious on the couch. The friend testified that on other occasions she had seen A. R. with injuries, including a burn mark on her finger and bald patches on her scalp.

The friend testified that Amador said A. R. had fallen out of her crib onto a doll house. When the friend entered the apartment, the doll house was on the living room floor; Amador picked it up and ran with it into a bedroom where the crib was located. A law enforcement officer testified that he found the doll house in a bedroom next to a crib.

A paramedic testified that he arrived at the apartment to find A. R. in critical condition. The paramedic observed a head injury and bruises of different colors and different apparent ages over A. R.’s entire body. Pediatricians who treated A. R. testified to the nature and extent of her injuries, including bruising across her body (some of which appeared old) and injuries to her brain and pancreas. A pediatrician gave an expert opinion that A. R. had been “subjected to multiple blunt force trauma events.” He testified that A. R.’s injuries were not consistent with a fall from her crib onto the doll house.

Amador was arrested, and he gave a custodial statement in which he reiterated that A. R. had fallen out of her crib onto the doll house. In his statement, Amador also indicated that A. R. previously had sustained a broken arm and that he and Swain sometimes disciplined A. R. by spanking her.

1. Amador challenges the trial court’s refusal to strike a prospective juror for cause. The prospective juror had indicated that, because the case involved a child, she would have difficulty being impartial and was leaning toward the state. When asked whether she could follow the court’s instruction that the defendant was presumed innocent until proven guilty, she responded affirmatively. When asked whether she could follow the court’s instruction on reasonable doubt, she also responded affirmatively. When asked whether she could base her decision in the case solely on the evidence and the court’s instructions, however, she replied: “I believe so, but I do have very strong — it’s hard for me to say without knowing the material evidence that’s going to be presented and the facts and how they’re going to relate, but I would hope that I would be able to do that, I just can’t say that with certainty at this time.”

For a juror to be excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.

A prospective juror’s expression of reservation about his or her partiality does not require a trial court to excuse the prospective juror for cause. Likewise, a prospective juror’s statement that she would “try” to decide the case based upon the court’s instructions and the evidence does not require the prospective juror to be excused.

Whether to strike a prospective juror for cause is within the trial court’s discretion, and the court’s ruling thereon is proper absent manifest abuse of that discretion. The trial court’s conclusion regarding a prospective juror’s bias is “based on findings of demeanor and credibility which are peculiarly in the trial court’s province, and those findings are to be given deference.” Here, the prospective juror gave conflicting answers to questions regarding her ability to follow the court’s instructions: she stated that she could follow the court’s instructions on the presumption of innocence and reasonable doubt, but she also stated that she hoped she could apply those instructions to the evidence presented at trial, although she was uncertain that she could do so. Under these circumstances, we find no manifest abuse of discretion in the trial court’s decision not to strike the prospective juror for cause.

2. Amador challenges the trial court’s ruling, after a Jackson-Denno hearing, that his custodial statement had been freely and voluntarily made and thus was admissible. The state bears the burden of demonstrating the voluntariness of a custodial statement by a preponderance of the evidence.

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

The appellate court may consider all evidence of record in its review. Where the case involves a mixed question of fact and law, the appellate court accepts the trial court’s findings on disputed facts and witness credibility unless clearly erroneous, but independently applies the legal principles to the facts.

So construed, the evidence showed that Amador spoke Spanish and that he possessed some ability to understand and speak English. At the start of his interview, he was told in Spanish that he was under arrest and given a form that set forth in Spanish his Miranda rights. Amador indicated that he could read Spanish, and appeared to be able to read the form. A police officer who could hold a “rudimentary” conversation in Spanish served as a translator during the interview, and he asked Amador whether he understood each of the rights described on the form. Amador asked a question about one of the rights set forth on the form, then expressed an understanding of all of the rights, which he indicated by writing his initials next to each right and signing the bottom of the form. After doing so, Amador gave his statement.

There is no dispute that the waiver form read by Amador accurately set forth his Miranda rights in Spanish, that Amador indicated that he understood those rights, or that Amador initialed and signed the waiver form. Amador testified at the Jackson-Denno hearing that he nevertheless did not understand those rights, in part due to the linguistic inadequacy of the police officer who was serving as translator. The trial court, however, found Amador’s testimony not to be credible. Given the evidence, the trial court’s credibility finding was not clearly erroneous. We find no error in the trial court’s admission of Amador’s custodial statement.

3. Amador contends that the court erred in excluding certain testimony as hearsay. The witness would have testified that she observed an interaction between Amador and Swain, prior to September 23, 2008, during which Amador asked Swain to be careful while putting a shoe on A. R. and Swain responded, “[W]hat, do you think, I’m going to break her foot, too?” Assuming without deciding that the court erred in excluding the proffered testimony, we find no ground for reversal; any such error was harmless because, aside from the fact that the meaning of Swain’s response was unclear, other evidence was presented that on a prior occasion Swain had harmed A. R.

Decided June 23, 2011

Christopher R. Geel, for appellant.

Patrick H. Head, District Attorney, Allen R. Knox, John R. Edwards, Assistant District Attorneys, for appellee.

4. Amador argues that the court erred in allowing the state’s expert witness to testify to the cause of certain of A. R.’s injuries. The witness, a pediatrician, testified that A. R.’s pancreas had been cut. The prosecutor asked: “[I]n this particular child, . . . what could have caused that to the pancreas to have that cut on there, without there being a cut on the outside?” Defense counsel objected, arguing that while the witness could testify to whether the child’s injuries were “consistent with something,” he could not testify to the cause of the injuries. The court overruled the objection, stating that the witness could “give an opinion as to the cause.” The witness opined that the injury would have been caused by significant blunt force trauma to the abdomen.

Amador cites Dunagan v. State in support of his claim of error. We held in Dunagan that it would have been error to admit, over a proper objection, a physician’s testimony that it was extremely unlikely that a child’s physical injuries could have resulted from anything other than an intentional act of molestation. The expert in this case, in contrast, testified that one of A. R.’s injuries was caused by blunt force trauma without opining on how such trauma occurred. Moreover, the opinion offered by the expert regarding the cause of A. R.’s pancreatic injury was “one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion [was] beyond the ken of the average layman.” The trial court did not abuse its discretion in allowing the testimony.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

        Corza v. State, 273 Ga. 164, 166 (3) (539 SE2d 149) (2000) (citations omitted); see Waldrip v. State, 267 Ga. 739, 745 (8) (c) (482 SE2d 299) (1997) (citing as a general rule that “a juror who merely leans one way or another, before hearing any evidence, is not subject to disqualification”).

       See Herrera v. State, 288 Ga. 231, 235 (6) (702 SE2d 854) (2010); Waldrip, supra.

        Corza, supra at 166-167 (3).

        Herrera, supra.

        Corza, supra at 167 (3) (citation omitted).

       See Head v. State, 276 Ga. 131, 133 (2) (575 SE2d 883) (2003) (trial court did not err in declining to strike prospective jurors for cause; one prospective juror stated he had a slight leaning toward believing the defendant guilty, but noted that he needed to see the evidence before making a decision and that he could follow the court’s instructions regarding the presumption of innocence; another prospective juror stated that she had formed an opinion that the defendant was probably guilty but that she would endeavor to remain impartial and stated that her opinion was not so fixed and definite that it would prevent her from deciding the case based on the evidence presented at trial); Corza, supra at 166-167 (3) (trial court did not err in declining to strike prospective juror for cause, where prospective juror expressed doubts about her impartiality but stated that she would have to hear all the evidence and that she would try to follow the court’s instructions as to the evidence and the law); Jordan v. State, 247 Ga. 328, 340 (6) (276 SE2d 224) (1981) (trial court did not err in declining to strike prospective juror for cause, where prospective juror stated that he had no fixed opinion on the defendant’s guilt or innocence, but opined that it would be hard for him to base his decision in the case strictly on the evidence and stated that he would do his best to keep an open mind during the trial but could not say positively whether he could do so). Cf. Ham v. State, 303 Ga. App. 232, 239-240 (2) (a) (692 SE2d 828) (2010) (trial court abused its discretion in declining to strike prospective juror who stated that he had already formed an opinion against the defendants, expressed disbelief about the presumption of innocence and a lack of understanding regarding reasonable doubt, and gave no indication that he intended to be impartial during the trial; parties failed to elicit necessary response that juror could lay aside prejudice and decide case on evidence and law).

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        State v. Ray, 272 Ga. 450 (2) (531 SE2d 705) (2000).

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994) (citations, punctuation and emphasis omitted).

        Haynes v. State, 269 Ga. 181, 183-184 (4) (496 SE2d 721) (1998).

        Thrasher v. State, 292 Ga. App. 566, 569 (1) (666 SE2d 28) (2008); see Vansant v. State, 265 Ga. 319, 320 (1) (443 SE2d 474) (1994).

       See White v. State, 281 Ga. 20, 22 (2) (635 SE2d 720) (2006).

       See Nguyen v. State, 269 Ga. App. 730, 731 (1) (605 SE2d 130) (2004).

       See Ow v. State, 255 Ga. App. 98, 101 (1) (564 SE2d 512) (2002).

       255 Ga. App. 309 (565 SE2d 526) (2002).

       Id. at 309-310 (2).

        Medlock v. State, 263 Ga. 246, 248 (3) (430 SE2d 754) (1993) (citation omitted).

       See Moore v. State, 258 Ga. App. 293, 295 (2) (574 SE2d 372) (2002) (whether to admit expert testimony on an issue to be decided by the jury is within the trial court’s discretion).


author: Andrews, Judge.

text:
    A11A0686.
    BROWN v. THE STATE.
    (712 SE2d 521)
   Andrews, Judge.

Colin Foster Brown appeals from the judgment of conviction entered on a jury verdict finding him guilty of first degree homicide by vehicle. For the following reasons, we find no error and affirm.

1. The evidence was sufficient to support the guilty verdict. On appeal from a criminal conviction, the defendant is no longer presumed innocent, and the evidence is construed in favor of the guilty verdict. Parker v. State, 220 Ga. App. 303 (469 SE2d 410) (1996). So construed, the record shows the following evidence. At about 1:00 a.m., the occupant of a house on Herrington Road in Gwinnett County heard a loud bang outside his home. He immediately investigated and saw that a car had run off the road and hit a tree near the house. He approached the driver’s side of the car and saw a man in the driver’s seat and another man in the front passenger seat. He observed that the man in the driver’s seat was conscious and strongly smelled of alcohol, and that the passenger was not moving and showed no signs of life. He called 911, and a police officer arrived within a few minutes. The officer observed a heavily damaged car that had run off the road and crashed head-on into a tree. At the scene of the accident, Brown told the officer that he was the driver of the car, and the officer smelled a strong odor of alcohol on Brown’s person. After Brown was transported to a hospital for treatment of injuries he sustained in the accident, he was arrested for driving under the influence of alcohol, given implied consent rights, and blood and urine samples were taken at about 2:45 a.m. Tests conducted on Brown’s blood sample by a forensic toxicologist at the Georgia Bureau of Investigation Crime Lab showed that his blood had an alcohol concentration of 0.164 grams per 100 milliliters, an amount in excess of the legal limit.

An accident investigation conducted by police revealed no defects in the road or other physical conditions in the area which could have caused or contributed to the accident. There were no signs that the car had braked, skidded, or made any abrupt change in direction before leaving the road and hitting the tree. Medical evidence showed that the passenger in the car died within a few minutes after the car crashed into the tree as a result of suffering multiple severe injuries caused by the crash.

Brown testified and admitted that, at the time of the accident, his ability to drive the car was impaired by alcohol he had consumed, but he claimed that his passenger caused him to run off the road and hit the tree by grabbing the steering wheel of the car. Brown said that the morning after the accident he called a police investigator assigned to the case and explained that his passenger had grabbed the steering wheel. The police investigator testified and confirmed that Brown called him the morning after the accident. But the investigator testified that Brown said he remembered nothing about the car crash, that he did not admit to driving the car but asked who was driving, and he said nothing about the passenger grabbing the steering wheel.

The evidence was sufficient for the jury to reject Brown’s claim that his passenger caused the accident, and to find beyond a reasonable doubt that Brown was guilty of first degree vehicular homicide in violation of OCGA § 40-6-393 (a) by causing the death of his passenger in the car crash as a result of driving the car with a blood alcohol concentration in excess of 0.08 grams in violation of OCGA § 40-6-391 (a) (5). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial court did not abuse its discretion under OCGA § 15-12-172 by removing a juror and replacing the juror with an alternate juror during jury deliberations.

The record shows that, during jury deliberations, the court bailiff told the trial court of a communication that occurred between her and one of the deliberating jurors. While the trial court was conferring with the prosecutor and defense counsel on how to proceed, the jury announced they had reached agreement on a verdict. Without receiving or publishing the verdict, and with the agreement of the prosecutor and defense counsel, the trial court brought the juror into the courtroom and asked her what she said to the bailiff. The juror said that she asked the bailiff if she could speak to the judge to “tell [the judge] exactly what I thought happened, and then for [the judge] to tell me the correct vote as a matter of law.” According to the bailiff, the juror told her that “the other jurors told her that her opinion did not match her reasons for her opinion,” and that “her reasons for her opinion should give her a different opinion.” The juror said the bailiff responded “that I should take the jury charge into consideration and that I should vote the way I think should be voted with good reason.” The bailiff said she told the juror that “she had the right to her own opinion.” The trial court independently questioned all of the remaining jurors and determined that none of them had any knowledge of these communications. With the agreement of the prosecutor and defense counsel, the trial court then removed the juror and replaced her with the alternate juror. The trial court removed the juror on the basis that the communications between the juror and the bailiff may have improperly influenced the juror’s consideration of the case. The trial court then presented the reconstituted jury with a new verdict form and instructed the jury to commence deliberations anew “as if I had just given the case to you” in accordance with the court’s prior jury instructions.

Because Brown acquiesced in the juror’s removal, he waived the right to assert error on appeal. Moreover, under OCGA § 15-12-172, the trial court may exercise discretion to remove a juror at any time, before or after submission of the case to the jury, “if good cause is shown to the court that the juror is unable to perform his duty, or for other legal cause . . . [and such removal may occur] even after deliberations have begun.” (Citations and punctuation omitted.) Moon v. State, 288 Ga. 508, 512 (5) (705 SE2d 649) (2011). Because “no legal verdict occurs until it is received and published in open court,” the unspecified “verdict” reached by the jury, but not received or published by the trial court, was not a legal verdict in the case. (Citation and punctuation omitted.) Daniley v. State, 274 Ga. 474, 475 (2) (554 SE2d 483) (2001). In the absence of a legal verdict, the trial court had discretion pursuant to OCGA § 15-12-172 to remove and replace the juror with an alternate for legal cause during the jury deliberations, and to instruct the jury to commence deliberations anew in accordance with the court’s prior instructions. The trial court did not abuse its discretion in removing and replacing the juror for legal cause.

3. The trial court did not err by refusing Brown’s request that, after the juror was removed and replaced by the alternate juror, the entire jury charge previously given to the jury be re-given. Instead, the trial court instructed the jury to deliberate in accordance with previous jury instructions given by the court to the alternate and the remaining members of the jury. We presume that qualified jurors under oath follow the trial court’s instructions. Daniley, 274 Ga. at 475 (2).

4. The trial court did not abuse its discretion when it allowed a short recess during a police officer’s testimony for the State to allow the officer to retrieve from his police car the implied consent card he used to read Brown his rights.

5. Brown contends the trial court erred by not giving the jury the entire causation instruction that he requested. Brown waived his right to claim this error by not objecting before the jury retired to deliberate. OCGA § 17-8-58; Jones v. State, 289 Ga. 145 (710 SE2d 127) (2011). Moreover, the trial court’s jury instructions gave the substance of the requested causation instruction, and there was no plain error. See OCGA § 17-8-58 (b).

6. Brown claims that the trial court erred by denying his motion for a new trial made on the basis that various actions or failures to act by his trial counsel amounted to ineffective assistance.

To obtain reversal of a conviction based on a claim of ineffective assistance of counsel, a defendant has the burden of proving that counsel’s performance was deficient, and that, but for the deficiency, there was a reasonable probability the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Terry v. Jenkins, 280 Ga. 341, 342 (627 SE2d 7) (2006). To establish deficient performance, a defendant must show that counsel’s performance fell below an objective standard of reasonableness under the circumstances confronting counsel at the time without resorting to hindsight. Strickland, 466 U. S. at 689-690; Franks v. State, 278 Ga. 246, 250 (599 SE2d 134) (2004). In considering adequacy of performance, trial counsel “is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U. S. at 690. “A claim of ineffective assistance of counsel is a mixed question of law and fact: we accept the trial court’s factual findings unless clearly erroneous, but we independently apply the legal principles to the facts.” Franks, 278 Ga. at 250.

Connelly v. State, 295 Ga. App. 765, 768-769 (4) (673 SE2d 274) (2009). Applying these principles, we find that the trial court correctly denied the motion for a new trial because counsel was not ineffective or, if counsel was ineffective, Brown failed to show harm.

(a) Brown points out that trial counsel failed to invoke the rule of sequestration of witnesses, but he does not assert that the testimony of any witness influenced testimony not yet given by another witness. In the absence of any claim that he was harmed by counsel’s failure to invoke the rule, Brown failed to prove that, but for the failure, there was a reasonable probability the outcome of the trial would have been different.

(b) Brown contends trial counsel should have moved for a mistrial on three occasions.

(i) On the first occasion, a Crime Lab toxicologist testified that marijuana is “a per se drug” meaning that “if it’s found [in a driver’s blood], it’s considered to be a DUI.” Defense counsel objected and moved to strike this testimony as misleading and invading the province of the jury. The trial court sustained the objection, granted the request to strike, and instructed the jury to disregard the testimony. Although Brown contends trial counsel should have moved for a mistrial, he fails to show that the jury disregarded the court’s instruction or that he suffered any harm. To the contrary, the record shows that the jury found Brown not guilty of the charge that he committed vehicular homicide by causing the death of his passenger by driving under the combined influence of alcohol and marijuana.

(ii) On the second occasion, Brown contends that, in response to communications between a juror and the bailiff during jury deliberations, as set forth in Division 2, supra, trial counsel should have moved for a mistrial. Trial counsel was not ineffective, because, as set forth in Division 2, supra, the trial court properly removed the juror, replaced her with an alternate, and instructed the jury to begin deliberations anew.

(iii) On the third occasion, Brown contends trial counsel should have moved for a mistrial when the trial court exercised its discretion to take a short recess to allow a testifying police officer to retrieve from his police car the implied consent card he used to read Brown his rights. Because we found in Division 4, supra, that the trial court did not abuse its discretion in allowing the recess, trial counsel was not ineffective.

(c) Brown contends that trial counsel should have objected to the introduction of photographs of the deceased victim. The photographs showed the deceased victim at the scene of the accident sitting in the passenger seat of the car, being removed from a disaster bag at the morgue, and lying on a table in the morgue. These pre-autopsy photographs were admissible to depict the nature and extent of the fatal injuries suffered by the victim in the accident. Generally, pre-autopsy photographs are admissible to show the nature and extent of a victim’s injuries, even if they are duplicative and may inflame the jury, and even if the cause of death is not in dispute. Smith v. State, 280 Ga. 490, 492 (629 SE2d 816) (2006). The trial court did not abuse its discretion in admitting the photographs, and counsel was not ineffective for failing to object.

(d) Brown claims trial counsel was ineffective for failing to produce testimony from an expert in accident reconstruction to support his claim that the passenger grabbed the steering wheel and caused the accident. At the hearing on the motion for new trial, Brown’s trial counsel testified that, prior to trial, she hired an expert in accident reconstruction, who after investigating the accident was unable to provide any testimony supporting Brown’s claims. Counsel testified that her professional judgment was to use Brown’s testimony to support the claim that his passenger caused the accident. The trial court did not err in finding that counsel’s testimony was credible, that her decision not to present testimony from an expert in accident reconstruction was a strategic decision made in the exercise of reasonable professional judgment, and that counsel was not ineffective.

(e) Brown contends counsel was ineffective by proceeding in his absence during two portions of the trial.

(i) In the first instance, the record shows that, while Brown was absent, Brown’s counsel and the prosecutor engaged in a short colloquy regarding a question received from the jury during deliberations asking whether the jury could receive extra copies of documents they were already reviewing, and agreed on the number of copies to send. A defendant’s constitutional right to be present “attaches at any stage of a criminal proceeding that is critical to its outcome if the defendant’s presence would contribute to the fairness of the procedure.” (Citation and punctuation omitted.) Huff v. State, 274 Ga. 110, 111 (2) (549 SE2d 370) (2001). Because in this instance nothing of substance occurred to which Brown could have made a meaningful contribution, his right to be present was not violated. Barrett v. State, 275 Ga. 669, 671 (571 SE2d 803) (2002). Trial counsel was not ineffective for engaging in this colloquy when Brown was not present.

(ii) The second instance also occurred while the jury was deliberating. The judge called the bailiff into the courtroom to explain the substance of a communication that occurred between the bailiff and a deliberating juror, as set forth in Division 2, supra. After the bailiff finished, Brown’s counsel related the substance of an inadvertent exchange unrelated to the trial that she had with a juror while they were both buying lunch. At that point, the prosecutor informed the judge that Brown was not in the courtroom. The judge responded, “Oh, I thought he was here,” and immediately recessed the proceedings until Brown returned. When the proceedings resumed with Brown present, the judge asked Brown’s counsel if she had informed Brown of the proceedings that occurred in his absence, and counsel responded that, “I didn’t finish telling him about that.” The judge instructed counsel to finish explaining to Brown what had occurred, and paused the proceedings for that purpose. After the pause, the judge asked counsel if she needed more time with Brown, to which counsel responded, “I don’t,” and asked Brown if he needed any additional information or wanted the record of the prior proceedings to be read, to which Brown responded, “No, sir.” With Brown present, the judge then questioned the juror at issue and subsequently replaced the juror with the alternate juror.

A defendant’s right to be present at a stage of the proceedings materially affecting his case “may be waived if the defendant later acquiesces in the proceedings occurring in his absence.” (Citation and punctuation omitted.) Jackson v. State, 278 Ga. 235, 237 (3) (599 SE2d 129) (2004). On this record, we find that Brown was fully informed of the proceedings that occurred in his absence, acquiesced in those proceedings, and waived the right to claim that his absence was error or that his counsel was ineffective.

Judgment affirmed.

Phipps, P J., and McFadden, J., concur.

Decided June 10, 2011

Reconsideration denied June 24, 2011.

Jamie L. Smith, for appellant.

Daniel J. Porter, District Attorney, James M. McDaniel, Assistant District Attorney, for appellee.