author: Bethel, Judge.

text:
    A16A1988.
    AMERICAN ACADEMY OF GENERAL PHYSICIANS, INC. et al. v. LaPLANTE.
    (798 SE2d 64)
   Bethel, Judge.

American Academy of General Physicians, Inc. (the “Academy”), American College of General Medicine, Inc. (the “College”), and American Board of General Practice, Inc. (the “Board”) (collectively, the “Organizations”) appeal from an order enforcing the Settlement Agreement (the “Agreement”) with Sharron Lee LaPlante (“LaPlante”). The Organizations argue the trial court erred in enforcing the Agreement because the Organizations’ agents exceeded their authority, an essential provision of the Agreement is void as against public policy, and there was no meeting of the minds between parties. For the reasons explained below, we affirm because there existed a sufficient meeting of the minds to validate and enforce the Agreement.

On appeal from a trial court’s order to enforce a settlement agreement, this Court applies a de novo standard of review because

the issues raised are analogous to those in a motion for summary judgment, [and] in order to succeed on a motion to enforce a settlement agreement, a party must show the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the Appellant’s case. Thus, we view the evidence in a light most favorable to the nonmoving party.

So viewed, the evidence shows that the Organizations filed a complaint alleging libel, slander, and other claims against LaPlante on April 13, 2012. After contentious discovery disputes, the case was ordered to mediation in October 2013. In January 2014, LaPlante moved for summary judgment on all claims, which the trial court granted in part and denied in part. Mediation occurred on August 28, 2015, at which Drs. Jose Garcia (“Dr. Garcia”) and George Covert (“Dr. Covert”) and attorney Robert Dyer (collectively, the “Agents”) appeared on behalf of the Organizations; LaPlante, her attorney, and a mediator were also present. The parties reached an agreement whereby LaPlante agreed to remove her websites from the Internet, not publish any future websites using the domain names identified in the Agreement, and not publish any information on any website in the future relating to the Organizations. In return, the Organizations agreed to remove their websites from the Internet and not publish a website in the future using the domain names identified in the Agreement. The Agreement also provided for a general release by each party from

any and all actions, causes of action, suits, debts, sums of money, accounts, obligations, demands and damages, of every name, kind and nature whatsoever, past or present, whether known or unknown, whether at law or in equity, arising or existing on account of any action or failure to act on or before the beginning of time to the date of this Agreement.

The Agreement was read into the record by the mediator in the presence of the trial judge, the parties, and their counsel, and after a short discussion in open court, was signed by the parties. About a month later, LaPlante moved to enforce the Agreement, alleging the Organizations failed to comply with their responsibilities. On February 10, 2016, the trial court heard arguments on the motion and later issued an order finding paragraphs 2 and 4 valid and enforceable. The trial court found that there existed a sufficient meeting of the minds to validate and enforce paragraph 2 of the Agreement and ordered the Organizations to take down their websites. The trial court further found paragraph 4 to be valid and enforceable as the parties clearly intended to release one another from any and all claims which would include issues regarding professional conduct. This appeal followed.

1. The Organizations argue the trial court erred in enforcing the Agreement because the Agents exceeded their authority. The Organizations conceded in their brief that the Agents were sent by the Organizations to attend court-ordered mediation with authority to “settle the case” and contract on behalf of the Organizations. But the Organizations argue that the Agents exceeded their authority if the intent of the Agreement was to deny the Organizations a presence on the Internet. At the hearing on LaPlante’s motion to enforce, the Organizations reiterated that the issue of whether the Agents exceeded their authority was contingent upon whether the terms of the Agreement prohibited the Organizations from having any presence whatsoever on the Internet. However, on appeal, the Organizations now argue that the Agreement itself was “extraordinary,” “entirely repugnant” and “so unreasonable” because the Agents agreed to shut down the Organizations’ own websites without sufficient reason, and that the Agents impliedly exceeded their authority by signing it. This argument was not raised in the court below.

It is well settled that issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken. Nor may [a plaintiff] alter the course of its arguments mid- stream, raising issues on appeal that were not raised before the trial court.

Here, the trial court found that the Agreement did not prohibit the Organizations from having any web presence, but only prohibited the Organizations from using the aforementioned domain names and websites. The Organizations now seek to alter their argument on appeal by removing the conditions upon which the Agents exceeded their authority This cannot be done on appeal. Accordingly, this enumeration of error lacks merit.

But even if the Organizations had raised this argument below, it would still fail because “[i]n Georgia, settlement agreements are highly favored under the law and will be upheld whenever possible” and the law cannot concern itself with the Organizations’ lingering discontent over a bargain struck on the record and with the benefit of counsel. Sanders v. Graves, 297 Ga. App. 779, 779 (678 SE2d 220) (2009) (citations omitted). The trial court did not err when it enforced the Agreement.

2. The Organizations next argue that an essential element of the Agreement contravenes federal law and is void as against public policy. Specifically, the Organizations contend that the general release language in paragraph 4 of the Agreement is unenforceable because it would illegally require the Organizations to avoid compliance with federal law which requires healthcare entities to report findings from their peer review actions. The trial court found that LaPlante had not submitted herself to the authority of the Organizations because her membership with the Organizations expired in 2010, and the Organizations did not have a right to engage in a review of LaPlante’s professional conduct. We agree with the trial court.

The evidence shows that LaPlante was a member of the Organizations from 2005 until approximately 2010 when she stopped paying membership dues. The trial court found that LaPlante had not been a member for a number of years and should have been dropped from the Organizations’ membership rolls. However, the Organizations argue LaPlante is still a member because she never formally resigned her membership. This argument does not comport with the terms of the Organizations’ membership agreement which requires members to pay annual dues in order to maintain their membership. Those same terms also note that the peer review of members is limited to the time in which they are members. In this case, the peer review process was not initiated until February 2016, nearly six years after LaPlante’s membership expired.

It is well established under Georgia law that
[t]he cardinal rule of construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced. . . . Further, the construction which will uphold a contract in whole and in every part is to be preferred, and ... no construction is required or even permitted when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation. It is well established that a court should avoid an interpretation of a contract which renders portions of the language of the contract meaningless.

Freund v. Warren, 320 Ga. App. 765, 768-769 (740 SE2d 727) (2013) (citation and punctuation omitted).

Here, the trial court found that, per the terms of the Agreement, the parties clearly intended to have no further dealings with one another, which would include issues regarding professional conduct. Nothing in the record suggests LaPlante is still a member of the Organizations and therefore subject to their professional review authority The Organizations did not appeal the trial court’s ruling that LaPlante is no longer a member, and as such, we agree that the Organizations are under no obligation under federal law or have authority under the terms of their membership agreement to review and report on the professional conduct of LaPlante.

3. Finally, the Organizations argue that the Agreement is unenforceable because there was no meeting of the minds. In the trial court, the Organizations argued it was unclear from the language in the Agreement and subsequent correspondence with LaPlante whether the Organizations were barred from ever having any presence on the Internet. The Organizations concede that the Agreement makes clear that the parties could not use the domain names or websites defined therein. But the Organizations contend that the Agreement was interpreted by LaPlante to mean the Organizations are barred from publishing “any website on any domain name.” We disagree.

“[A]n agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject-matter, and in the same sense.” Cox Broadcasting Corp. v. Nat. Collegiate Athletic Assn., 250 Ga. 391, 395 (297 SE2d 733) (1982) (citations omitted).

In determining if parties had the mutual assent or meeting of the minds necessary to reach agreement, courts apply an objective theory of intent whereby one party’s intention is deemed to be that meaning a reasonable man in the position of the other contracting party would ascribe to the first party’s manifestations of assent[.]

Id. “When parties to a contract . . . know that they have different, intents with respect to certain language before they enter into the contract, there can be no meeting of the minds upon the same subject matter and in the same sense and no agreement on that issue.” Id. at 396.

In this case, after the parties reached a settlement in mediation, the terms of the Agreement were read into the record before the trial court. After the terms were read, the following discussion occurred between the trial court and counsel for the parties:

COURT: Okay. May I ask a question? I know it’s probably irregular for — in a mediation, but in the context of removing websites, is the — without defining what that means, I guess it would be important for me to know that the parties’ contemplation is that the websites would no longer be active. Meaning that someone could not add content to those websites and all parties understand that, even after these websites are removed, there maybe cached shadows of these websites forever.
MEDIATOR: And I think I can state the understanding of the parties, Your Honor, to — to be corrected by Counsel, it’s their intent to take these sites down —
COURT: (Interposing) So they’re not active?
MEDIATOR: — not active. Completely take them down and they’re going to have to work with the domain providers to — nobody can provide any new content, reactivate these websites, and that’s why we identified both the domain names that access the site and the sites themselves. Is that an accurate statement?
LAPLANTE’S COUNSEL: That’s correct.
ORGANIZATIONS’ COUNSEL: That’s our understanding as well, Your Honor.

Nowhere in the record does LaPlante assert that the Organizations are barred from having a presence on the Internet, and there is nowhere in the Agreement that prohibits either party from ever having a presence on the Internet. The Agents, one of whom was an attorney for the Organizations, had three opportunities (the initial drafting of the Agreement, in open court when the Agreement was read into the record, and after the trial court’s further inquiry) to raise any objections or ask clarifying questions before signing the Agreement if they suspected LaPlante’s intent differed from theirs. The trial court found the language of paragraph 2 of the Agreement was specific to the domain names and particular websites identified therein, and that it did not say the parties could not have a presence on the Internet. We agree.

Further, the Organizations argue for the first time on appeal that under the objective theory standard in Cox, there was no meeting of the minds because LaPlante could not reasonably believe the Organizations would authorize the Agents to abandon their websites and domain names. But the Organizations argued in the trial court below that the meeting of the minds did not occur because LaPlante’s intent to prohibit the Organizations from having any Internet presence whatsoever was not contemplated by the parties at the time the Agreement was signed. Routinely, this Court refuses to review issues not raised in the trial court. For this reason, we will not consider the Organizations’ objective theory argument raised for the first time on appeal.

To consider the case on a completely different basis from that presented below would be contrary to the line of cases holding, “[plaintiffs] must stand or fall upon the position taken in the trial court.” Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court.

Decided March 7, 2017.

Andy Clark Law, M. Andrew Clark; Eric A. Ballinger, for appellant.

Hill, Kertscher & Wharton, Douglas R. Kertscher, Julie A. Burke, Blakely H. Frye, for appellee.

4. LaPlante seeks the imposition of a $10,000 penalty against the Organizations and their counsel under Court of Appeals Rule 15 (b). Although we are not able to discern any reasonable ground upon which the Organizations might have anticipated the reversal of the trial court’s judgment, based on the record we cannot say that their appeal was totally frivolous or solely to delay the enforcement of the Agreement. Blomberg v. Cox Enterprises, Inc., 228 Ga. App. 178, 181 (2) (491 SE2d 430) (1997). Therefore, we decline to grant LaPlante’s motion for sanctions.

Judgment affirmed.

Dillard, P. J., and Reese, J., concur.

        Johnson v. DeKalb Cty., 314 Ga. App. 790, 791 (726 SE2d 102) (2012) (citation and punctuation omitted).

       Summary judgment was granted in LaPlante’s favor as to the claims for service mark infringement, deceptive trade practices, and breach of contract. Summary judgment was denied as to the slander and libel claims.

       Dr. Garcia’s official title at the time he signed the Agreement was Chief Financial Officer for the Board and the College.

       Dr. Covert’s official title at the time he signed the Agreement was President and Chief Executive Officer of the Academy.

       LaPlante owned the websites with the domain names: www.aagpscam.com, www.acgm-alert.com, www.abgpalert.com, and www.aagpalert.com. The Organizations sued LaPlante alleging in part that LaPlante used those websites to post defamatory material about the Organizations and their members.

       The Organizations owned the websites with the domain names: www.abgp.org,www.aapg.org, and www.acgm.org.

        Pinnacle Properties V, LLC v. Mainline Supply of Atlanta, LLC, 319 Ga. App. 94, 100 (2) (735 SE2d 166) (2012) (citation and punctuation omitted). See also Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 828-829 (2) (573 SE2d 389) (2002) (Court of Appeals properly refused to review argument made in opposition to summary judgment that was raised for the first time on appeal); CPD Plastering, Inc. v. Miller, 284 Ga. App. 172, 174(1) (643 SE2d 392) (2007) (party could not abandon an issue in the trial court and on appeal raise questions or issues not raised below); and Venture Design v. Original Appalachian Artworks, Inc., 197 Ga. App. 432, 434 (3) (398 SE2d 781) (1990) (contractor could not argue for the first time on appeal that an indemnity agreement was contrary to public policy under applicable statute and was therefore invalid).

       Health Care Quality Improvement Act of 1986, 42 USC § 11133 (a) (“HCQIA”), provides in part:
      Each health care entity which... is a professional society [and] takes a professional review action which adversely affects the membership of a physician in the society, shall report to the Board of Medical Examiners . . . the name of the physician or practitioner involved, a description of the acts or omissions or other reasons for the action or, if known, for the surrender ... as the Secretary [of Health and Human Services] deems appropriate.

       The Academy is a “health care entity” under HCQIA. For our purposes, a health care entity means a professional society of health care practitioners that engage in professional review activity through a formal peer review process of its members. See 45 CFR § 60.3.

       The documents related to the peer review action were not included with the record on appeal.

       The Organizations argue that this Court’s holding in Taylor v. Kennestone Hosp., Inc., 266 Ga. App. 14, 22 (4) (b) (596 SE2d 179) (2004), applies because any contract to avoid the peer review reporting requirements of HCQIA was void as against public policy. The holding in Taylor is distinguished by the fact that the doctor had submitted himself to the authority of the hospital and was therefore subject to the peer review. Further, the agreement between the hospital and the doctor on its face violated the reporting requirements of the completed peer review. Id.

       The Organizations reference LaPlante’s November 2015 letter where LaPlante restates the terms of the Agreement requiring the Organizations to remove their domain names and websites from the Internet. The Organizations’ attempt to interpret this letter to mean LaPlante implied the Organizations were barred from having a presence on the Internet is a fallacy. The Agreement specifically defines the websites and domain names subject to its terms, which is what LaPlante referenced in her letter.

        Walls v. Sumter Regional Hosp., Inc., 292 Ga. App. 865, 867-868 (1) (666 SE2d 66) (2008) (citations omitted).

       During the pendency of this appeal, Court of Appeals Rule 15 (b) governing sanctions for frivolous appeals was replaced by Court of Appeals Rule 7 (e) (2).


source: Caselaw Access Project

author: REESE, Judge.

license: Public Domain

text:
    A16A1999.
    KEY v. GEORGIA DEPARTMENT OF ADMINISTRATIVE SERVICES.
    (798 SE2d 37)
   REESE, Judge.

Ramie Key, a state inmate who obtained a consent judgment against a former correctional officer, filed an action for a declaratory judgment after the Georgia Department of Administrative Services (“DOAS”) refused to indemnify the officer. Key appeals from the trial court’s order granting DOAS’s motion to dismiss the complaint. For the reasons set forth infra, we affirm the trial court’s judgment.

According to the complaint, the officer subjected Key to excessive force while in the course of performing his official duties and, in so doing, violated Key’s constitutional rights. The officer was criminally charged with aggravated battery and violation of oath by public officer, and he entered a plea under the First Offender Act and North Carolina v. Alford. Key filed a federal civil rights lawsuit against the officer, alleging that the officer used excessive force against him while performing his official duties. The district court entered a consent judgment in favor of Key against the officer in the amount of $300,000.

Key demanded payment from DOAS under its general liability agreement and filed the underlying complaint after DOAS denied coverage. The general liability agreement, attached to the complaint, stated that it was issued pursuant to the authority granted by OCGA § 45-9-1 et seq., to provide coverage to employees of participating state departments.

The general liability agreement excluded from coverage:

Claims for “damages” resulting from any dishonest, fraudulent or criminal act or omission of any Covered Party which forms the basis of a criminal conviction, whether by verdict, plea of guilty or plea of nolo contendere including any criminal conviction for which first-offender treatment is afforded, regardless of the specific offense for which a criminal conviction is obtained or the theory of civil liability asserted against the Covered Party.

The trial court granted DOAS’s motion to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted. Specifically, it found that the general liability agreement unambiguously excluded from coverage the officer’s conduct because the aggravated battery, for which he was criminally convicted, formed the basis for the civil judgment. Key appeals from this order.

We review a trial court’s ruling on a motion to dismiss de novo.

Our role is to determine whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiff’s favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.

With these guiding principles in mind, we turn now to Key’s specific claims of error.

1. Key argues that the trial court erred when it found that the “criminal acts” exclusion in the insurance policy was not ambiguous, contending that the exclusion was subject to more than one interpretation.

“In construing an insurance policy, we begin, as with any contract, with the text of the contract itself.”

Words used in the policy are given their usual and common meaning, and the policy should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney Where the contractual language is explicit and unambiguous, the court’s job is simply to apply the terms of the contract as written, regardless of whether doing so benefits the carrier or the insured. . . . However, when a policy provision is susceptible to more than one meaning, even if each meaning is logical and reasonable, the provision is ambiguous and, pursuant to OCGA § 13-2-2 (5),[] will be construed strictly against the insurer/drafter and in favor of the insured.

(a) Key contends that the exclusion could be interpreted not to apply to criminal convictions resulting from an Alford, plea, which, unlike a traditional plea of guilty, carries a protestation of innocence.

Key misconstrues the nature of an Alford guilty plea, also known as a “best interests” guilty plea, by which a defendant may plead guilty while also claiming his innocence or simply electing to remain silent. In Alford, “even though [the defendant] claimed his innocence, the trial judge could accept his guilty plea [as knowing and voluntary] in light of the strong evidence against him and the circumstances showing he understood the plea was in his best interest.” Such “best interests” typically include avoiding the risks of trial and a harsher sentence. Regardless of the defendant’s reason for pleading guilty, however, an Alford plea is still a guilty plea.

Here, the plain language of the criminal acts exclusion applies to conduct that formed the basis of “a criminal conviction, whether by verdict, plea of guilty or plea of nolo contendere including any criminal conviction for which first-offender treatment is afforded.” Thus, the provision explicitly and unambiguously encompasses all guilty pleas, including those entered pursuant to Alford. “Where the contractual language is explicit and unambiguous, the court’s job is simply to apply the terms of the contract as written, regardless of whether doing so benefits the carrier or the insured.” It follows that this alleged error lacks merit.

(b) Key argues in his appellate brief that the exclusion could be interpreted to exclude only claims for damages that both result from a “dishonest, fraudulent or criminal act or omission” and “form[ ] the basis of a criminal conviction.”

The exclusion provides in part:

Claims for “damages” resulting from any dishonest, fraudulent or criminal act or omission of any Covered Party which forms the basis of a criminal conviction,... regardless of the specific offense for which a criminal conviction is obtained or the theory of civil liability asserted against the Covered Party

We disagree that the exclusion is ambiguous. Key’s suggested interpretation conflicts with generally recognized rules of grammar and construction. Here, Key’s interpretation ignores the rule of the last antecedent. And, as Key appears to understand based on his omission of the letter “s” from the word “forms” in his brief, the use of the verb “forms” indicates the subject is singular (i.e., “any dishonest, fraudulent or criminal act or omission”), not plural (i.e., “Claims for damages”).

More importantly, Key’s suggested interpretation would have the effect of reading the exclusion entirely out of the policy Such a construction is to be avoided. Key has provided no example of a situation where a “claim[ ] for damages” could both “result[ ] from any dishonest, fraudulent or criminal act or omission” and also “form[ ] the basis of a criminal conviction.” We agree with Key that a defendant could find himself facing a parallel civil trial and criminal prosecution resulting from the same conduct, but that proposition does not support Key’s suggested reading of the provision, that the exclusion applies only when the claim for damages forms the basis of the criminal conviction.

(c) Key contends that DOAS’s interpretation contradicts its stated purpose (discouraging criminal activity), arguing that his interpretation would cover all criminal acts and not simply those that result in a conviction. Because the policy is unambiguous, however, no construction is authorized or necessary.

2. Key argues that the criminal acts exclusion is unenforceable because it violates public policy According to Key, because the insurance coverage was compulsory, the intent must have been to protect some third party rather than just the insured. Key adds that, because the insurance policy was paid for with state funds, it necessarily follows that the intent in providing such coverage was to compensate members of the public who were harmed by the conduct of the insured.

OCGA § 13-8-2 (a) provides that “[a] contract that is against the policy of the law cannot be enforced.” However, “contracts will not be avoided by the courts as against public policy, except where the case is free from doubt and where an injury to the public interest clearly appears. [T]he courts must exercise extreme caution in declaring a contract void as against public policy and should do so only in cases free from doubt.” The General Assembly is the “ultimate arbiter of Georgia public policy.”

Decided March 7, 2017.

Drago Cepar, Jr.; The Eichholz Law Firm, David S. Eichholz, for appellant.

Samuel S. Olens, Attorney General, W. Wright Banks, Jr., Deputy Attorney General, Julie A. Jacobs, Senior Assistant Attorney General, Brooke E. Heinz, Assistant Attorney General, for appellee.

This is not a case free from doubt, where an injury to the public interest clearly appears. Instead, the legislature’s stated intent in Chapter 9 of Title 45 of the Code, “Insuring and Indemnification of Public Officers and Employees,” was to protect state employees against personal liability based on their conduct while performing their jobs. In other words, the policy was not to compensate victims of criminal conduct by state employees. We thus reject Key’s argument that general language in the Georgia Constitution indicates an intent contrary to the provision excluding coverage for damages resulting from a state employee’s criminal acts. Consequently, the trial court did not err in dismissing Key’s complaint.

Judgment affirmed.

Dillard, P. J., and Bethel, J., concur.

       See OCGA § 16-5-24 (a).

       See OCGA § 16-10-1.

       See OCGA § 42-8-60.

       400 U. S. 25, 37 (91 SCt 160, 27 LE2d 162) (1970).

        Sanders v. Trinity Universal Ins. Co., 285 Ga. App. 705, 706 (647 SE2d 388) (2007).

       Id. (punctuation and footnote omitted).

        Reed v. Auto-Owners Ins. Co., 284 Ga. 286, 287 (2) (667 SE2d 90) (2008).

       OCGA § 13-2-2 provides in part: “The following rules, among others, shall be used in arriving at the true interpretation of contracts:... (5) If the construction is doubtful, that which goes most strongly against the party executing the instrument or undertaking the obligation is generally to be preferred!.]”

        Ga. Farm Bureau Mut. Ins. Co. v. Smith, 298 Ga. 716, 719 (784 SE2d 422) (2016) (citations and punctuation omitted).

       See Alford, 400 U. S. at 37 (“An individual accused of [committing a] crime may voluntarily, knowingly, and under standingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”).

       See Brower v. State, 230 Ga. App. 125 (495 SE2d 600) (1998).

       See Crowe v. State, 265 Ga. 582, 585-586 (4) (458 SE2d 799) (1995).

        Brower, 230 Ga. App. at 125 (citing Alford, 400 U. S. at 38).

       See id. at 125-126 (1).

       See Williams v. State, 337 Ga. App. 381, 388-389 (4) (787 SE2d 333) (2016).

       (Emphasis supplied.)

        Ga. Farm Bureau Mut. Ins. Co., 298 Ga. at 719 (citations and punctuation omitted).

       (Alteration in original.)

        Wilkes v. Fraser, 324 Ga. App. 642, 648 (751 SE2d 455) (2013) (declining to construe unambiguous language in a deed).

       See Deal v. Coleman, 294 Ga. 170, 174 (1) (a) (751 SE2d 337) (2013) (“Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent.”) (citation and punctuation omitted).

       See, e.g., Bradley v. Bradley, 156 Ga. 525, 529-530 (119 SE 639) (1923) (interpreting provision in will applying “ [w] hen each of the ch i Id-ren of my three sons reach 21 years” to mean when “all” of the children reached 21 years) (emphasis supplied).

       See R & G Investments & Holdings v. American Family Ins. Co., 337 Ga. App. 588, 593 (2) (787 SE2d 765) (2016) (“The construction of an insurance contract that renders a provision mere surplusage clearly should be avoided under our rules of construction . . . .”) (citation omitted).

        Ga. Farm Bureau Mut. Ins. Co., 298 Ga. at 719.

       See OCGA § 13-8-2 (giving examples of contracts deemed void as against public policy).

        Emory Univ. v. Porubiansky, 248 Ga. 391, 393 (282 SE2d 903) (1981) (holding that it was against state policy to allow a licensed dentist to rely on a patient’s contractual release that purported to relieve him of his duty to exercise a reasonable degree of skill and care during treatment) (citations and punctuation omitted).

        Woodcraft by MacDonald v. Ga. Cas. & Sur. Co., 293 Ga. 9, 11 (743 SE2d 373) (2013).

       See, e.g., OCGA § 45-9-1 (a) (“In addition to any other compensation which may be paid to an officer, official, or employee of any agency [or] department ... of this state, each such agency [or] department ... is authorized, in its discretion, to purchase policies of liability insurance or contracts of indemnity or to formulate sound programs of self-insurance . . . , insuring or indemnifying such officers, officials, or employees to the extent that they are not immune from liability against personal liability for damages arising out of the performance of their duties or in any way connected therewith.”).

       See Ga. Const. of 1983, Art. I, Sec. II, Par. I (“Public officers are the trustees and servants of the people and are at all times amenable to them.”).

       See Emory Univ., 248 Ga. at 393.


author: McFADDEN, Presiding Judge.

text:
    A14A1848.
    ASHLEY v. THE STATE.
    (798 SE2d 235)
   McFADDEN, Presiding Judge.

Thad Lee Ashley was convicted of kidnapping, criminal attempt to kidnap, entering an automobile, and criminal trespass. In our opinion in Ashley v. State, 331 Ga. App. 794 (771 SE2d 462) (2015), we reversed his convictions but held that, because the evidence was sufficient, he could be retried. In Division 1 of our opinion, we held that the evidence was sufficient to support the convictions. Id. at 794-796 (1). In Division 2 of our opinion, we held that the trial court improperly allowed the state to present character evidence against Ashley and that this error required reversal. Id. at 797-800 (2). Given that disposition, in Division 3 of our opinion, we declined to address Ashley’s remaining claims of error. Id. at 800 (3).

The Supreme Court of Georgia granted certiorari to review Division 2 of our opinion, and in State v. Ashley, 299 Ga. 450 (788 SE2d 796) (2016), the Court “reverse[d] [our] judgment as to Division 2 of the majority opinion[ ] and . . . remand[ed] the case for consideration of the other enumerations raised by Ashley” Id. at 458 (3).

Because the Supreme Court neither addressed nor considered Division 1 of our opinion in Ashley v. State, 331 Ga. App. 794, and that Division is not inconsistent with the Supreme Court’s own opinion, Division 1 “become[s] binding upon the return of the remittitur.” Shadix v. Carroll County, 274 Ga. 560, 563 (1) (554 SE2d 465) (2001). We vacate Division 2 of our earlier opinion and in place of that Division we adopt as our own the Supreme Court’s opinion in State v. Ashley, 299 Ga. 450. Finally, we vacate Division 3 of our earlier opinion and in place of that Division we address Ashley’s other enumerations.

As detailed below, none of Ashley’s other enumerations require reversal. The holding in Division 1 of our earlier opinion that the evidence was sufficient to support Ashley’s convictions disposes of Ashley’s claims that the trial court erred in failing to grant his motion for directed verdict and that the verdict is contrary to the evidence. Ashley argues that the trial court made an improper comment on the evidence, but the trial court did not express or intimate an opinion on whether any fact had been proved. Ashley argues that the trial court improperly charged the jury on kidnapping, but he did not object to the charge at trial and has not shown plain error. Ashley argues that the trial court erred by not granting a mistrial following the admission of recordings of Ashley’s custodial statements or ordering those statements redacted, but he affirmatively stated at trial that he had no objection to the admission of this evidence. Ashley challenges the constitutionality of his sentence, but he did not raise this challenge at the first available opportunity Finally, Ashley argues that he received ineffective assistance of counsel, but he has not shown that his trial counsel performed deficiently For these reasons, we affirm his convictions.

1. Facts.

The earlier appellate decisions set forth in detail the evidence in and procedural posture of this case. See State v. Ashley, 299 Ga. at 450-454 (1); Ashley v. State, 331 Ga. App. at 794-796 (1). In summary, the evidence viewed in the light most favorable to the verdict showed that Ashley approached a seven-year-old girl and a two-year-old girl, who were inside their family’s minivan in front of their residence. He grabbed the older girl by the wrist and pulled her from the vehicle. After the older girl broke away from him, Ashley reached inside the vehicle toward the younger girl. The girls’ mother yelled at him, and he fled. Ashley contended that, while intoxicated, he had mistaken the minivan for a vehicle belonging to his father, who lived in the same neighborhood as the victims. The state presented similar transaction evidence of Ashley’s disturbing behavior around other children at the neighborhood swimming pool.

2. Failure to grant directed verdict; verdict contrary to the evidence.

Ashley argues that the trial court erred in failing to grant his motion for directed verdict. He also argues that the verdict was contrary to the evidence, an argument he raised in his motion for new trial, which the trial court denied.

[WJhether an appellant is asking [an appellate] court to review a trial court’s refusal to grant a new trial on the general grounds or its refusal to grant a motion for directed verdict, this court can only review the case under the standard espoused in Jackson v. Virginia, [443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979)], to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict.

Lewis v. State, 296 Ga. 259, 261 (3) (765 SE2d 911) (2014) (citation and punctuation omitted). Consequently, our analysis of the sufficiency of the evidence in Division 1 of our earlier decision in Ashley v. State, 331 Ga. App. at 794-796 (1), which was not affected by the Supreme Court’s decision in State v. Ashley, 299 Ga. 450, resolves both claims of error in favor of the state.

3. Trial court’s alleged improper comment.

Ashley argues that the trial court made an improper comment on the evidence in violation of OCGA § 17-8-57 while instructing the jury on similar transaction evidence. The version of that statute in effect at the time of Ashley’s 2012 trial provided:

It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

Former OCGA § 17-8-57. (The current version of OCGA § 17-8-57 also prohibits the court from expressing or intimating an opinion on whether a fact has been proved but precludes appellate review of that error, beyond plain error review, if there is no timely objection to the error.)

Ashley argues that the following statement by the trial court violated OCGA § 17-8-57:

And my expectation is that, if you’ll recall, [the prosecutor] made an opening statement about things going on in the swimming pool, and Mr. Ashley allegedly staring at little girls in the pool, and that sort of thing; and I’m assuming that this evidence relates to what [the prosecutor] described in his opening statement that he would prove. And so the law requires me to tell you that you have to limit your consideration of that solely to the issue of, what was Mr. Ashley’s intent at the time the alleged incident at the van occurred. Is everyone clear on that?

This statement notified the jury that the prosecutor was about to present certain evidence mentioned in his opening statement; it did not express or intimate the trial court’s opinion as to whether any fact had been or had not been proved. “There is a wide difference between saying that a particular thing has been proved and saying that there has been [or will be] testimony on that thing.” Slaton v. State, 224 Ga. App. 422, 423 (3) (b) (480 SE2d 872) (1997) (citation and punctuation omitted). See Foster v. State, 290 Ga. 599, 600-601 (2) (723 SE2d 663) (2012) (trial court’s statement in pre-evidentiary charge that state would “introduce evidence in support of the charges contained in the indictment” did not address credibility of witnesses or any fact at issue and did not violate OCGA § 17-8-57) (punctuation omitted). Moreover, immediately before making the statement, the trial court told the jury that, “by giving this instruction, the Court in no way suggests to you that the defendant has or has not committed any other acts, nor whether such acts, if committed, prove anything.” We find no violation of OCGA § 17-8-57. See Bryant v. State, 226 Ga. App. 135, 138 (3) (b) (486 SE2d 374) (1997) (trial court’s jury charge on similar transactions did not violate OCGA § 17-8-57 where it was “obvious from the court’s charge that the jury was instructed it could itself determine whether the alleged incident took place”).

4. Jury charge on kidnapping.

Ashley argues that the trial court improperly charged the jury on the offense of kidnapping because the trial court did not instruct the jury on the principle, stated in OCGA § 16-5-40 (b) (1), that “slight movement of another person which occurs while in the commission of any other offense shall not constitute the offense of kidnapping if such movement is merely incidental to such other offense.” Although Ashley raised the issue in his motion for new trial, he did not object to the charge at trial. Consequently, under OCGA § 17-8-58 (b) we apply plain error review to this claim. State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011).

Ashley cannot meet the first requirement for plain error, that there be “an error or defect . . . that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant.” Kelly, 290 Ga. at 33 (2) (a) (citation and punctuation omitted). The record shows that Ashley intentionally relinquished any claim of error related to the charge on kidnapping by inducing the alleged error. At the charge conference the trial court stated his intent to instruct the jury on the entire statutory definition of kidnapping, including the language that Ashley now argues was erroneously omitted, but Ashley objected and specifically asked the trial court not to include that language in the charge. See Edwards v. State, 235 Ga. 603, 604 (2) (221 SE2d 28) (1975) (defendant cannot complain of jury charge that defendant requested; such charge is induced error, which is impermissible).

5. Unredacted recordings of custodial statements.

Ashley argues that recordings of two of his custodial statements contained comments by the interrogating law enforcement officer that were improper statements of that officer’s opinion that invaded the province of the jury. See generally Axelburg v. State, 294 Ga. App. 612, 616-617 (2) (669 SE2d 439) (2008) (discussing circumstances under which comments of interrogating officer during custodial interview are improper and require redaction). He argues that the trial court should have, sua sponte, either required redaction of the recordings or granted a mistrial after the unredacted recordings were played to the jury. But when the state tendered the unredacted recordings for admission, Ashley’s trial counsel affirmatively stated that he had no objection. In so doing, trial counsel waived any objection to the evidence. See Monroe v. State, 272 Ga. 201, 204 (6) (528 SE2d 504) (2000).

6. Sentencing.

Ashley challenges the constitutionality of his life sentence for kidnapping the seven-year-old girl and his thirty-year sentence for criminal attempt to kidnap the two-year-old girl, arguing that the sentences are cruel and unusual punishment forbidden by the Eighth Amendment. Both sentences presumptively comply with the Eighth Amendment because they fall within the statutory limits set by the legislature for these offenses. See OCGA §§ 16-4-6 (a) (permitting 30-year sentence for person convicted of criminal attempt to commit crime punishable by life imprisonment), 16-5-40 (d) (2) (permitting life sentence for person convicted of kidnapping victim less than 14 years of age); Grier v. State, 339 Ga. App. 778, 789 (6) (792 SE2d 737) (2016) (sentence that falls within statutory range of punishment set by legislature is presumed not to violate Eighth Amendment).

And Ashley’s challenge to the constitutionality of his sentence was untimely because he did not make the challenge at the first available opportunity — in the sentencing hearing — but instead waited until his motion for new trial to object. “[E]ven constitutional challenges to sentencing statutes, including those challenges based on the Eighth Amendment, are untimely if they are presented for the first time in a motion for new trial.” Jones v. State, 290 Ga. 670, 674 (3) (725 SE2d 236) (2012) (citations omitted). See Parker v. State, 220 Ga. App. 303, 310 (7) (469 SE2d 410) (1996). “Because his challenges were untimely, they are not subject to review.” Jones, 290 Ga. at 674 (3) (citations and punctuation omitted).

7. Ineffective assistance of trial counsel.

Ashley argues that his trial counsel gave ineffective assistance in connection with the admission of recordings of Ashley’s custodial statements. To prevail on this claim, Ashley

must show [both] that trial counsel’s performance [was deficient in that it] fell below a reasonable standard of conduct and that [it was prejudicial because] there existed a reasonable probability that the outcome of the case would have been different, had it not been for counsel’s deficient performance. If [Ashley] fails to [prove] either prong of the [two-part] test, this relieves the reviewing court of the need to address the other prong.

Scott v. State, 290 Ga. 883, 889 (7) (725 SE2d 305) (2012) (citations and punctuation omitted). The trial court found that Ashley did not meet his burden of showing that his trial counsel performed defi-ciently, and we agree.

When Ashley’s trial counsel was asked, at the hearing on Ashley’s motion for new trial, about the decisions he made relating to the recordings of Ashley’s custodial statements, trial counsel testified that he had seen no issue with the voluntariness of the statements, that in all of the statements Ashley had denied committing a crime, that the statements were consistent with the testimony he expected Ashley to give at trial in his own defense, and that he believed the statements supported Ashley’s defense that, while intoxicated, he mistook the minivan for his father’s vehicle. As such, he articulated a reasonable strategy for not seeking to exclude the statements. See Byrd v. State, 274 Ga. 58, 60-61 (2) (548 SE2d 2) (2001) (finding no ineffective assistance where trial counsel wanted defendant’s custodial statement to come into evidence as part of his strategy to portray defendant as truthful and to demonstrate that defendant lacked criminal intent).

Trial counsel gave no testimony at the hearing on the motion for new trial about why he did not seek redaction of the interrogating officer’s comments that Ashley contends were improper statements of opinion (see Division 5, supra). And Ashley has not shown that those comments would have required redaction. As our Supreme Court has explained,

[l]aw enforcement interrogations are, by their very nature, attempts to determine the ultimate issue and the credibility of witnesses. Comments made in such an interview and designed to elicit a response from a suspect do not amount to opinion testimony, even when testimony reflecting the comments is admitted at trial.

Butler v. State, 292 Ga. 400, 406 (3) (a) (738 SE2d 74) (2013) (citations and punctuation omitted). Accord Dubose v. State, 294 Ga. 579, 587 (6) (b) (755 SE2d 174) (2014). The comments challenged by Ashley were designed to elicit a response from him in the course of the interrogation. The officer did not cast herself as an expert on Ashley’s veracity in any of the comments. Compare Axelburg, 294 Ga. App. at 618 (2) (officer claimed in recorded interview to be forensic interviewing expert who could tell when interview subject was lying to him). For these reasons, Ashley has not shown that trial counsel provided deficient performance in failing to seek redaction of the comments.

Decided March 8, 2017.

Cynthia W. Harrison, for appellant.

Brian K. Fortner, District Attorney, Emily K. Richardson, Assistant District Attorney, for appellee.

Judgment affirmed.

Doyle, C. J., Barnes, P. J., Andrews, Ray, Branch, and Self, JJ., concur.

       We use the term “similar transaction” evidence in this opinion because this case was tried under Georgia’s former Evidence Code. Our Supreme Court has adopted the term “other acts” evidence for cases decided under the new Evidence Code. See State v. Jones, 297 Ga. 156, 158 (1) n. 1 (773 SE2d 170) (2015).


author: Rickman, Judge.

text:
    A16A1654.
    TRAN v. THE STATE.
    (798 SE2d 71)
   Rickman, Judge.

Nam Nhu Tran was tried by a jury and convicted of two counts of armed robbery and one count each of aggravated sexual battery and possession of a firearm during the commission of a felony. Following the denial of his motion for new trial, Tran appeals. He contends that the trial court erred in its response to a question from the jury and that his trial counsel was ineffective in numerous respects. For reasons that follow, we reverse.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that at approximately 1:00 a.m. on February 6, 2013, two men entered a karaoke club on Buford Highway wearing surgical masks and carrying guns. A female club manager testified that the armed men forced her to lie face down on the floor and one of the men put his finger in her vagina. A male club manager testified that a man pointed a gun at him, forcing him to lie down, and took his debit card and some cash. The male manager testified that the men also took an almost full case of Johnny Walker Black Scotch and two or three bottles of Crown Royal Special Reserve. After one of the men left, the second man tried to get the male manager to open the register, but it would not open because the power was off. As soon as the second man left, the male manager went to the front door and saw a silver Acura with tinted windows pulling out of a parking space. He testified that the license plate was covered and was not visible. Neither of the managers saw the men’s faces clearly.

At approximately 1:24 a.m., a DeKalb County police officer received a call about a suspect vehicle, and three or four minutes later, as he was driving to the incident location, he saw a silver Acura with tinted windows. The officer followed the Acura and noticed that the driver was driving erratically When the officer activated his blue lights, the Acura stopped in a parking lot. As soon as the officer stopped his vehicle, the passenger got out of the Acura and ran. The passenger was never found. After backup arrived, the officer ordered the driver, identified as Tran, out of the Acura and placed him in handcuffs. Tran told the officer that “there was a gun” in the Acura. The gun belonged to Tran. A subsequent search of the Acura revealed a case of Black Label liquor, a bottle of Crown Royal, and various items of clothing.

A detective with the DeKalb County police department responded to the robbery call at the karaoke club. He took statements from five witnesses while he was at the scene. The male club manager described one of the suspects as an Asian male, age 20 to 30, height of 5'6"to 5'7", weight of 160 pounds, wearing jeans and a white mask, and armed with a silver gun. He described the second suspect as an Asian male, unknown description, wearing a white mask, and armed with a gun. The female club manager described one of the suspects as an Asian male, age 20 to 30, height of 5'6" to 5'7", wearing a white mask and dark hat, and armed with a dark-colored handgun.

Tran testified at trial to the following. He is Vietnamese, is 5'5" tall, and weighs about 155 pounds. On February 6, 2013, he went to a restaurant for a late dinner with friends, and after eating, they decided to go to the karaoke club. He left the restaurant by himself, drove to the club, and waited outside his car for his friends to arrive. While he was waiting, a man he did not recognize pointed a gun at him and told him to get in the car and drive. The man was wearing a mask and was carrying a box and some bags that he put into Tran’s car. Tran drove where he was told to go and, approximately three to four minutes later, he saw a police vehicle behind him with its blue lights illuminated. At that point, Tran stopped the car. The man took a couple of bills from the car’s glove compartment that had Tran’s address on them and told him not to say anything about the incident or he would kill him.

Tran testified that when the man got out of his car and ran, he was in shock and “so scared” because four or five years earlier he had been robbed at his business, a pool hall, in Clayton County. Tran testified that he reported that incident to the police and was subpoenaed to appear in court, but before he was scheduled to appear, someone placed a note on his car telling him not to show up for court. Tran told the police about the note, but they did not do anything. After that happened, he purchased a gun.

1. Tran contends that the trial court erred in its response to the following question from the jury: “If, in the case that the defendant was one of the robbers, but the State has not proven that he was the one who committed the sexual battery, or that he even had knowledge that it was occurring at the time, is he still party to the crime?” Before responding to the jury, the trial court stated, “I’ll just tell them that’s for them to decide,” and asked if there were any objections to his proposed response. Tran’s counsel stated that he had no objection. The trial court then told the jury, “That’s for you to decide.” There was no objection following the court’s response to the jury “[Tranj’s failure to object to the [court’s response], despite having had the opportunity to do so, constitutes a waiver.” (Citations omitted.) Glover v. State, 285 Ga. 461, 463 (3) (678 SE2d 476) (2009). Having failed to preserve this objection for appellate review, Tran

is entitled to reversal only if the jury instruction constituted plain error, which will only be found if the jury instruction was erroneous; the error was obvious; the instruction likely affected the outcome of the proceedings; and the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

(Citations and punctuation omitted.) Lafavor v. State, 334 Ga. App. 125, 134-135 (8) (778 SE2d 377) (2015).

Tran contends that the trial court should have answered the jury’s question with a simple “no.” He argues that the court’s response invited the jury to disregard the law and “left the jury free to decide Mr. Tran’s guilt or innocence based not on the law, but simply ‘up to’ the jury.”

As a general rule, “[a] trial court has a duty to recharge the jury on issues for which the jury requests a recharge[, but] where no such request has been made, the need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court.” (Citation and punctuation omitted.) Leeks v. State, 296 Ga. 515, 521 (4) (769 SE2d 296) (2015). Here, the jury did not request a recharge, and “[t]he trial court had discretion to decline to answer the jury’s question directly.” Redding v. State, 296 Ga. 471, 473 (2) (769 SE2d 67) (2015). Further, “[w]e have never held . . . that the court must engage in a question and answer session with the jury or instruct the jurors individually on how to apply the law to the facts.” Kimmel v. State, 261 Ga. 332, 335 (3) (404 SE2d 436) (1991). The trial court had already instructed the jurors on parties to a crime, following the pattern charge, as well as on the burden of proof, witness credibility, direct and circumstantial evidence, intent, and the elements of aggravated sexual battery The jurors were also told that they were bound by the law given in the court’s instructions, a copy of which was provided to each juror, and that they had a duty and responsibility to apply that law to the facts of the case, which they must ascertain from all the evidence presented. Reviewing the trial court’s charges as a whole, we conclude that the court’s response to the jury was not clearly erroneous and, contrary to Tran’s assertion, did not invite the jury to disregard the law. See Aikens v. State, 297 Ga. 229, 231 (2) (773 SE2d 229) (2015); see also Lafavor, 334 Ga. App. at 135 (8).

2. Tran contends that his trial counsel was ineffective for failing to object in several instances, failing to request a jury charge on his sole defense, and opening the door to damaging testimony

To prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct and that, under the circumstances, the challenged action might be considered sound trial strategy. Id. at 689-690 (III) (A). As an appellate court, we “accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003). In this division, we address the first prong of the Strickland test, and in Division 3 we address the second prong, looking at the combined effect of trial counsel’s errors to determine whether those errors prejudiced the defense.

(a) Tran contends that his trial counsel was ineffective for failing to object to the trial court’s response to the question from the jury addressed in Division 1. Because there was no plain error in the trial court’s response to the jury, when considered in connection with the complete charge given by the court, Tran cannot show ineffective assistance of counsel based on his counsel’s failure to object to the court’s response. See Dority v. State, 335 Ga. App. 83, 104 (4) (g) (780 SE2d 129) (2015); see also Thomas v. State, 297 Ga. 750, 755 (5) (778 SE2d 168) (2015); Hughley v. State, 330 Ga. App. 786, 794 (4) (c) (769 SE2d 537) (2015).

(b) Tran contends that his trial counsel was ineffective for failing to request a jury instruction on coercion, his sole defense. When asked about his failure to submit any proposed jury charges, trial counsel testified:

I used to submit jury instructions, you know, in almost all of my trials. And at this point over the last few years I’ve since not submitted any jury instructions for any trials, assuming that the judge follows pattern. And so I generally will ask at the beginning of the trial if the judge follows pattern. And if that’s the case, I will generally will not submit any, because from my experience my charges don’t come in anyway. So in long or in short, the answer would be no, I did not submit any in this and I generally don’t and have not the last few years.

Putting aside our concerns about trial counsel’s general practice with respect to jury instructions, we must determine whether counsel’s failure to request an instruction on coercion constituted ineffective assistance. Pursuant to OCGA § 16-3-26, “[a] person is not guilty of a crime, except murder, if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury” To assert a statutory affirmative defense, such as coercion, the defendant must admit all of the elements of the crime charged except intent. Mathis v. State, 299 Ga. App. 831, 842 (5) (684 SE2d 6) (2009).

Here, Tran denied any knowledge of or participation in the armed robbery and denied knowing the person who pointed a gun at him and told him to drive. He was never asked whether he had participated in or had any knowledge of the aggravated sexual battery Accordingly, Tran was not entitled to a jury instruction on coercion and therefore cannot show that counsel’s failure to request such a charge constituted ineffective assistance. See Otarte v. State, 273 Ga. App. 96, 102 (2) (d) (614 SE2d 213) (2005); see also Boccia v. State, 335 Ga. App. 687, 693 (1) (b) (ii) (782 SE2d 792) (2016).

(c) Tran contends that his trial counsel was ineffective for failing to object to questions that commented on his right to remain silent and his right to counsel.

On cross-examination, after Tran testified that he spoke to his girlfriend from the jail, the State asked him whether his girlfriend had asked him what had happened. He replied, “Yes, but I didn’t want to say anything while I was in jail because I didn’t have an attorney at the moment. . . . And before you make a call, they said they were going to record your call, so I didn’t want to say anything.” The following then transpired:

STATE: I guess that’s really the root of the issue. Why would you need an attorney? If you’re an innocent bystander standing in a parking lot, who’s been held up and roped into helping with an armed robbery, why would you need an attorney?
TRAN: They took me in immediately and locked me up.
STATE: Okay And at any point did you say, hey, man, I was on the phone with my girlfriend. I was smoking a cigarette. This guy came up behind me and put a gun in my back. I did what he told me to do because I was scared.
TRAN: He just locked me up, sir.
STATE: Let me ask you this. Would it seem a viable option to you to explain to the police what had happened without identifying the attacker? Therefore, not putting yourself in any danger. Could you have said, hey, man, a guy came up to me, had a mask on, put a gun in my back and made me be his getaway driver?

At that point, Tran’s trial counsel objected based on speculation. Although the trial court sustained the objection, the questioning continued:

STATE: Did it occur to you to say something like that?
TRAN: Not at the moment.
STATE: Did it occur to you at any point to give any information to the police that would clear you of these terrible charges?
TRAN: Yes, but I was scared at the moment, yes.
STATE: You were scared?
TRAN: Yes.
STATE: Did you ever try to think of a way to give police information that would clear your name without exposing who actually did the crime?
TRAN: Yes, once I had an attorney, yes.
STATE: You did. And did you provide that information?
TRAN: To whom?
STATE: To the police who have locked you up for armed robbery and sexual battery?
TRAN: No.
STATE: You never gave them any information to clear your name?
TRAN: No.

At the motion for new trial hearing, trial counsel testified that the information that came out on cross-examination was damaging to the defense and that more objections should have been made, but that things were going so quickly that he was not able to make every objection. When asked why he did not object when the State continued the same line of questioning after the trial court had sustained his objection to it, trial counsel responded:

[T]he only thing I can think of is, you know, when trying cases like this or really any case, after an objection is sustained, it’s almost natural to think that the next question is not going to be, you know, in violation of the evidentiary rules as far as, you know, whatever the objection may be. So I think I was just naturally assuming that the next question would be legitimate, and I couldn’t get the objection in in time.

“[T]he use for impeachment purposes of [a defendant’s] silence, at the time of arrest and after receiving Miranda warnings, violate [s] the Due Process Clause of the Fourteenth Amendment.” Doyle v. Ohio, 426 U. S. 610, 619 (II) (96 SCt 2240, 49 LE2d 91) (1976). And “although the improper references at issue in Doyle concerned only the defendants’ post-Miranda silence, the prohibition extends equally to impeachment use of a defendant’s post-Miranda invocation of the right to counsel.” (Citations omitted.) Hill v. Turpin, 135 F3d 1411, 1414 (11th Cir. 1998). Defense counsel’s failure to object to such comments would amount to deficient performance. See Hines v. State, 277 Ga. App. 404, 408 (2) (626 SE2d 601) (2006).

To the extent that the State’s questions related to Tran’s silence before he received Miranda warnings, the Supreme Court of Georgia has consistently held since 1991 that a comment upon a defendant’s silence or failure to come forward will not be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense. Sanders v. State, 290 Ga. 637, 640 (4) (723 SE2d 436) (2012); Reynolds v. State, 285 Ga. 70, 71-72 (673 SE2d 854) (2009); Mallory v. State, 261 Ga. 625, 630 (5) (409 SE2d 839) (1991), recognized as overruled on other grounds in Clark v. State, 271 Ga. 6, 10 (5) (515 SE2d 155) (1999).Accordingly, “it wouldbe improper for the prosecution to comment upon a criminal defendant’s silence or failure to come forward even when he takes the witness stand.” Doyle v. State, 291 Ga. 729, 733 (3) (733 SE2d 290) (2012); see also Tucker v. State, 228 Ga. App. 321, 324 (1) (b) (491 SE2d 420) (1997) (fact that defendant invoked his rights to counsel and silence should not have been admissible). And defense counsel’s failure to object to such comments would amount to deficient performance. Dumas v. State, 337 Ga. App. 124, 127 (1) (786 SE2d 508) (2016).

Under either scenario, Tran’s counsel opened the door to allow the State to pursue this line of questioning by asking Tran on direct examination whether his prior encounter with the police had “anything to do with why you may not have said anything to the police at this point?” See Burney v. State, 244 Ga. 33, 39 (4) (257 SE2d 543) (1979); see also Doyle, 291 Ga. at 733 (3) (Where “defendant opens the door to this line of questioning during direct examination, the prosecution has every right to pursue a thorough and sifting examination and to comment upon it during closing argument.”) (citation omitted). Under the circumstances, any objection to the prosecution’s comment on Tran’s silence would have been properly overruled. “Because the failure to make a meritless objection cannot constitute ineffective assistance, we conclude that trial counsel was not ineffective for failing to object to the comment upon [Tranj’s silence.” (Citation omitted.) Id.; see Fullwood v. State, 304 Ga. App. 341, 343 (3) (696 SE2d 367) (2010).

(d) Tran contends that his trial counsel was ineffective for failing to object to hearsay The State called a Clayton County police officer as a rebuttal witness, and he testified that, at the prosecutor’s request, he had checked Clayton County’s database and found no record of Tran being a victim of a crime in Clayton County. The officer also testified that he checked with the City of Riverdale, and they did not have any record in their database of Tran being a crime victim and that they had specifically checked the only Clayton County pool hall within the city limits and found no history of Tran being a victim there. At the motion for new trial hearing, trial counsel testified that the officer’s testimony hurt Tran and that he should have objected to it, but he did not recall whether he considered objecting.

(i) The officer’s testimony about his search of the Clayton County database was admissible to prove the absence of a public record or entry under OCGA § 24-8-803 (10), which provides that the following shall not be excluded by the hearsay rule, even though the declarant is available as a witness:

To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office, evidence in the form of a certification in accordance with Code Section 24-9-902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry[.j

The officer testified that he helps to maintain the records of crimes that occur in Clayton County and that he regularly accesses the database to get information about victims and defendants. He further testified that he checked the database using several versions of Tran’s name, as shown on the criminal history report, as well as Tran’s birth date and his driver’s license number, but found no record of him being a victim of a crime in Clayton County. Based on the language of OCGA § 24-8-803 (10) and guidance from federal courts construing a very similar statute, Federal Rule of Evidence 803 (10), the officer’s testimony about the Clayton County records fell within the hearsay exception. See United States v. Parker, 761 F3d 986, 992 (III) (9th Cir. 2014) (Rule 803 (10) does not specify that testimony must be from custodian of records); United States v. Valdez-Maltos, 443 F3d 910, 911 (5th Cir. 2006) (agent not required to specifically testify that a “diligent search failed to disclose the record” as long as the testimony and the relevant circumstances reflected an adequate search). Because a hearsay objection to this testimony would have been fruitless, Tran’s claim of ineffective assistance in this regard is without merit. See White v. State, 283 Ga. 566, 569-570 (4) (662 SE2d 131) (2008).

(ii) With respect to the City of Riverdale records, however, the officer’s testimony was not admissible to show the absence of a public record or entry. The officer did not testify that he had any knowledge of the City of Riverdale database or provide any information about who conducted the search or how it was conducted. “In failing to raise an objection to this inadmissible hearsay, the performance of [Tranj’s trial counsel fell below an objective standard of reasonableness under the first prong of Strickland.” (Citations omitted.) Forde v. State, 289 Ga. App. 805, 808-809 (1) (658 SE2d 410) (2008).

(e) Tran contends that his trial counsel was ineffective for failing to object to questions from the State that improperly impeached his testimony During the State’s cross-examination of Tran, the prosecutor asked him about the threatening note he had received on his car after his business had been robbed and then offered, “would it surprise you that we had a Clayton County investigator run your name, and your name as listed here, Nam Nhu Tran, appears nowhere in any crime report ever in Clayton County; does that surprise you?” And later in the cross-examination, the following transpired:

STATE: My understanding is that you had two interactions with the court system; is that correct? You reported it the first time you called and reported it?
TRAN: Yes.
STATE: Which we can’t find a record. . . .

At the motion for new trial hearing, trial counsel agreed that it would have been helpful to keep these questions out and that he might have considered objecting, but it might be that things were going too fast for him to object.

“A witness may be impeached by disproving the facts testified to by the witness.” OCGA § 24-6-621. And if an accused in a criminal proceeding chooses to testify, he or she shall be sworn as any other witness and, with certain exceptions, may be examined and cross-examined as any other witness. OCGA § 24-5-506 (b). It is improper, however, to confront or attempt to impeach a witness with facts that are not within his personal knowledge. See Cowards v. State, 266 Ga. 191, 194 (3) (a) (465 SE2d 677) (1996) (improper to cross-examine police officer regarding facts not personally known to the officer, but contained in the case investigation file). The prosecutor’s impeachment of Tran with a search performed by a Clayton County investigator of which Tran had no knowledge was therefore improper. And trial counsel’s failure to object to the improper questioning constituted deficient performance. See Ward v. State, 304 Ga. App. 517, 527 (5) (a) (696 SE2d 471) (2010) (failing to object to hearsay statement alone was deficient performance).

(f) Tran contends that his trial counsel was ineffective when he opened the door to damaging testimony that was directly contradictory to Tran’s testimony

While cross-examining the DeKalb County detective who searched Tran’s vehicle, trial counsel asked if the detective had been provided an opportunity to interrogate Tran. The following then transpired:

DETECTIVE: I did. We actually spoke twice. The first time we talked, he didn’t want to talk. But then the second time he was going to his probable cause hearing or his preliminary hearing. And he had a different lawyer before you at the time and he wanted to talk to us then.
COUNSEL: Is this when his bond was going on?
DETECTIVE: No, it wasn’t his bond. It was a preliminary hearing.
COUNSEL: Okay
DETECTIVE: And he wanted to talk to us then.
COUNSEL: And did he talk to you?
DETECTIVE: He did. His lawyer told us that he wanted to speak to us and give us the actual person that was in the car that night. But he didn’t — he basically retracted his statement at some point and said he didn’t want to talk anymore because he feared for his family getting killed.
COUNSEL: All right. So the first time you confronted him, he said I don’t want to say anything, correct?
DETECTIVE: Correct.
COUNSEL: The second time he said, okay, I might be able to tell you a little bit more about kind of who was in the car or whatnot, but then said, you know what, I’m just afraid for my life at this point, correct?
DETECTIVE: Correct.

On redirect, the State asked the detective, “Without speculating, what information was indicated to you the defendant could provide?” Trial counsel objected based on hearsay, attorney-client privilege, and pretrial negotiations. The trial court overruled the objection, ruling that trial counsel had “opened the door,” and the detective testified that he understood that Tran was going to tell him who was in the car with him that night and also provide details about the crime that was committed. The detective further testified that he got the impression that Tran was familiar with the person who was in the car with him.

At the motion for new trial hearing, trial counsel testified that he does not recall why he introduced the testimony if he thought it was objectionable. He further stated:

I think what ended up happening was when I questioned the investigator about what was said during the investigation, I was assuming that he was going to give me information that I knew he was going to say. And unfortunately he said something different. And I didn’t anticipate what he was going to say. And so as it went through, it was damaging to Mr. Tran’s case. And I believe the only way — and, again, I’m just almost internally speculating because I can’t remember everything play by play as to why I did it, but I’m thinking, just knowing myself, I objected further to try to cut it off because it’s already done too much damage at that point.

Trial counsel “expected the detective to say that Nam Tran was supposed to — he knows the individuals potentially that were involved and he’s just scared.” Trial counsel acknowledged that the detective’s testimony contradicted Tran’s testimony that he did not know the person who got in his car that night and that he did not offer to provide the detective with information about that person.

We recognize that “[t]he scope of cross-examination is grounded in trial tactics and strategy, and will rarely constitute ineffective assistance of counsel.” (Citation and punctuation omitted.) Simpson v. State, 277 Ga. 356, 359 (4) (b) (589 SE2d 90) (2003). But here, to the extent trial counsel may have pursued this line of questioning based upon trial strategy, we find that it was not a reasonable decision a competent attorney would have made when the defense theory was that Tran was a victim and did not know the man who pointed a gun at him and forced him to drive. See Cabrera v. State, 303 Ga. App. 646, 652 (2) (694 SE2d 720) (2010); see generally Dority v. State, 335 Ga. App. at 100 (4) (d) (i).

3. We now determine if trial counsel’s deficiencies prejudiced the defense, and in doing so, we must consider the combined effect of all of counsel’s errors. See Schofield v. Holsey, 281 Ga. 809, 811-812 (II) n. 1 (642 SE2d 56) (2007). The relevant question “[w]hen a defendant challenges a conviction ... is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 U. S. at 695 (III) (B). “In making this determination, [we] must consider the totality of the evidence before the judge or jury[,]” id., reviewing the record de novo and weighing the evidence as we expect reasonable jurors would have done. See Woodard v. State, 296 Ga. 803, 810-811 (3) (b) n. 5 (771 SE2d 362) (2015). “[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Strickland, 466 U. S. at 696 (III) (B); see State v. Crapp, 317 Ga. App. 744, 748 (2) (732 SE2d 806) (2012) (“In close cases, where the evidence presented by the state is thin, mistakes made by trial counsel take on greater significance.”) (citations and punctuation omitted).

Here, we consider trial counsel’s errors in the context of a case where the jury heard the prosecutor essentially testify that Tran would not need an attorney if he was an innocent bystander and then question Tran at length about why he never gave the police information that would have cleared him of these charges. Trial counsel’s errors introduced evidence into the record that directly contradicted Tran’s trial testimony and allowed the admission of other evidence that further challenged Tran’s credibility, the combined effect of which was to severely undercut the defense’s case. And all of this occurred in a case where the evidence of guilt was not overwhelming.

Under these circumstances, we conclude that Tran has shown the required prejudice to prevail on his ineffective assistance claim. See Kennebrew v. State, 299 Ga. 864, 873-874 (2) (b) (792 SE2d 695) (2016); Fisher v. State, 299 Ga. 478, 486 (2) (b) (788 SE2d 757) (2016). Tran’s convictions must therefore be reversed. Because the evidence was sufficient to support the verdict, he can be retried. See Kennebrew, 299 Ga. at 874 (2) (c).

Judgment reversed.

Barnes, P. J., and Self, J., concur.

Decided March 8, 2017.

Daniel H. Petrey, for appellant.

Robert D. James, Jr., District Attorney, Tyler A. Mann, Leslie Miller-Terry, Lenny I. Krick, Assistant District Attorneys, for appel-lee.

       Tran was indicted for five counts of armed robbery, three counts of aggravated sexual battery, and one count of possession of a firearm during the commission of a felony. The trial court granted a directed verdict as to three of the armed robbery counts and two of the aggravated sexual battery counts because the State failed to present any evidence as to those counts.

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

       In his 911 call, the male manager described the attackers as black men based on “the way they talk,” but later changed his description based on conversations with “the guys who got robbed with me” and the fact that he never clearly saw the perpetrators’ faces or their hands.

       Although Tran does not acknowledge that our review is limited to plain error, we will review properly enumerated and argued claims of jury instruction error regardless of whether the appealing party specifically casts the alleged infirmity as “plain error,” [but] parties should be advised that the hurdle to establishing plain error is high . . . and therefore that the failure to specifically articulate how the alleged error satisfies this high standard increases the likelihood that their claims in this regard will be rejected.

        State v. Kelly, 290 Ga. 29, 32 (1) n. 2 (718 SE2d 232) (2011).

       There were no objections to the charge.

       Because of our finding that Tran has not met the plain error criteria, we need not reach the issue of whether trial counsel’s statement that the defense had no objections to the court’s proposed response amounts to an affirmative waiver. See Kelly, 290 Ga. at 34 (2) (b) n. 5.

       We note that it is unclear whether the bright-line evidentiary rule enunciated in Mallory remains applicable because Mallory was based on former OCGA § 24-3-36 (“[acquiescence or silence, when the circumstances require an answer, a denial, or other conduct, may amount to an admission”) and the Supreme Court of Georgia has expressed no opinion about the continuing validity of Mallory s evidentiary ruling under the new Evidence Code. See Kennebrew v. State, 299 Ga. 864, 872 (2) (a) (2) n. 4 (792 SE2d 695) (2016). This case was tried in February 2015, and therefore Georgia’s new Evidence Code, effective for trials conducted on or after January 1, 2013, was applicable. For now, we continue to follow the precedent established by the Supreme Court of Georgia on this issue. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI (“decisions of the Supreme Court shall bind all other courts as precedents”). We also note that Eleventh Circuit cases interpreting Federal Rule of Evidence 801 (d) (2) (B), the federal counterpart to OCGA § 24-8-801 (d) (2) (B), have held that the failure to respond to a statement that, under the circumstances, an innocent defendant would normally be induced to respond, may constitute an adoptive admission, if “there are sufficient foundational facts from which the jury could infer that the defendant heard, understood, and acquiesced in the statement.” (Punctuation omitted.) See United States v. Jenkins, 779 F2d 606, 612 (11th Cir. 1986), quoting United States v. Carter, 760 F2d 1568, 1579 (VII) (A) (11th Cir. 1985).

       It does not appear that the Georgia appellate courts have previously applied OCGA § 24-8-803 (10). Because OCGA § 24-8-803 mirrors Rule 803 of the Federal Rules of Evidence, we may look to federal case law for guidance in interpreting our statute. See Ciras, LLC v. Hydrajet Technology, 333 Ga. App. 498, 500 (773 SE2d 800) (2015).


text:
    A16A1687.
    MEDTECH, INC. v. NELSON et al.
    (797 SE2d 923)
   McFADDEN, Presiding Judge.

This appeal challenges a trial court’s grant of an extraordinary motion for new trial vacating an earlier grant of summary judgment. Because a motion for new trial is not an appropriate vehicle for obtaining review of a grant of summary judgment, we reverse.

On October 4, 2010, Everard Nelson and his wife, Vivienne Nelson, filed a complaint against Biomet Microfixation, LLC, and MedTech, Inc., asserting claims for products liability, breach of warranty, and negligence. The complaint alleged that a bone cement manufactured by Biomet and distributed by MedTech had failed after it was used to fill a void in Everard Nelson’s skull during a surgery and that the defendants, among other things, had been negligent in training healthcare personnel regarding the storage and usage of the product. The Nelsons later filed an amended complaint, asserting claims of negligence against The Center for Advanced Neurological Surgery, PC., as the employer of the doctor who had performed the surgery. On January 14, 2012, MedTech moved for summary judgment as to all claims against it. The Nelsons filed no response to MedTech’s motion for summary judgment and consented to the trial court ruling on the motion without a hearing. On September 20,2013, the trial court entered an order granting summary judgment to MedTech as to the claims against it. In that order, the trial court also found no just reason for delay and directed the clerk of court to enter judgment in favor of MedTech pursuant to OCGA § 9-11-54 (b).

Over a year later, on October 30, 2014, the Nelsons filed two separate motions: an extraordinary motion for new trial based on a claim of newly discovered evidence and a motion to set aside under OCGA § 9-11-60 (d) based on an alleged mistake. On September 17, 2015, the trial court held a hearing on only the extraordinary motion for new trial. At the hearing, the Nelsons argued that they had made the showings required to obtain a new trial based on newly discovered evidence. In response, MedTech first argued that a motion for new trial was not an appropriate vehicle for seeking review of a grant of summary judgment and then, alternatively, argued that the Nelsons had not made all of the showings required to obtain a new trial based on a claim of newly discovered evidence. On January 13, 2016, the trial court entered an order granting the Nelsons’ extraordinary motion for new trial. MedTech filed an application for interlocutory review of the order, which this court granted. This appeal followed.

“Where a motion for new trial is not a proper vehicle for review of a trial court’s action, the motion has no validity ... In this regard, a motion for new trial is not the proper vehicle to obtain a re-examination of the grant of summary judgment and a motion so filed has no validity[.]” Debter v. Stephens, 297 Ga. 652 (777 SE2d 244) (2015) (citations and punctuation omitted). See also Blackwell v. Sutton , 261 Ga. 284 n. 1 (404 SE2d 114) (1991) (“Amotion for new trial, by its very nature, would not lie to rectify an erroneous grant of summary judgment.”). Consequently, the Nelsons’ extraordinary motion for new trial was not a proper vehicle to obtain relief from the grant of summary judgment to MedTech. See generally Ford Motor Co. v. Conley, 294 Ga. 530, 539 (2) (757 SE2d 20) (2014) (for explanation that distinction between ordinary and extraordinary motion for new trial is timing, with ordinary motion timely made within 30 days of entry of judgment on jury verdict or after bench trial, while extraordinary motion is untimely). Accordingly, the trial court erred in granting a motion for new trial that had no validity.

Moreover, to the extent that the extraordinary motion for new trial could be characterized as a motion for reconsideration of a summary judgment order that did not dispose of the entire case, it still would not serve as a valid basis for relief from the order in this case, which expressly directed judgment in favor of MedTech under OCGA § 9-11-54 (b).

Summary judgment orders which do not dispose of the entire case are considered interlocutory and remain within the breast of the court until final judgment is entered. They are subject to revision at any time before final judgment unless the court issues an order upon express direction under OCGA § 9-11-54 (b).

Canoeside Properties v. Livsey, 277 Ga. 425, 427 (1) (589 SE2d 116) (2003) (citation and punctuation omitted; emphasis supplied). Although the Nelsons’ separate motion to set aside pursuant to OCGA § 9-11-60 (d) was not ruled upon and is apparently still pending in the trial court, the trial court’s erroneous grant of an invalid motion for new trial must be reversed.

Decided March 8, 2017

Peters & Monyak, Robert P. Monyak, Bonnie M. Lassiter, for appellant.

Kaufman Law, Mark L. Stuckey; Huff, Powell & Bailey, R. Page Powell, Jr.; Hart & Associates, Steven A. I. Hart, Sonia M. Mahoney, for appellees.

Judgment reversed.

Miller, P. J., and McMillian, J., concur.