author: Phipps, Presiding Judge. Andrews, Judge,

text:
    A11A0050.
    EALEY v. THE STATE.
    (714 SE2d 424)
   Phipps, Presiding Judge.

After a stipulated bench trial, Val Ealey was convicted of trafficking in cocaine, possession of marijuana, and exceeding the speed limit. Ealey appeals, asserting that his waiver of the right to a jury trial was ineffective because it was not voluntary. Specifically, he argues that the court coerced him into waiving his jury trial right by promising him a lighter sentence and an appeal bond if he opted for the bench trial. Under the circumstances presented in this case, we hold that the waiver was not voluntary and the trial court’s finding that the waiver was valid was clearly erroneous. Therefore, we reverse Ealey’s convictions. Because our review of the evidence adduced at the stipulated bench trial shows that it was sufficient to support Ealey’s convictions, he may be retried.

“A defendant’s right to trial by jury is one of those fundamental constitutional rights that the defendant must personally, knowingly, voluntarily, and intelligently choose to waive.” The state bears the burden of showing that the defendant made a knowing, voluntary and intelligent waiver of that right. A defendant’s consent to a trial without a jury need not be in any particular, ritualistic form; the trial court need only conduct an inquiry of the accused on the record so as to ensure that the waiver is knowing, voluntary and intelligent; Ealey’s contention is not that his consent to a trial without a jury was not knowing or intelligent, but that it was not voluntary in light of the trial court’s participation in the decision-making process. We will affirm a trial court’s determination that a defendant validly waived his right to a jury trial unless that determination is clearly erroneous.

The transcript shows the following. After the court heard and denied Ealey’s motion to suppress, Ealey’s attorney informed the court that Ealey desired to waive his right to a jury trial and proceed instead with a bench trial. The court asked Ealey whether he understood that he had a constitutional right to a jury trial. Ealey replied that he understood. When asked whether he had been afforded sufficient time to talk to defense counsel about the difference between a jury trial and a bench trial, Ealey responded that he had. The court again asked Ealey if he desired to waive his right to a jury trial and opt instead for a bench trial. Ealey responded affirmatively.

The attorneys and the court then discussed possible evidentiary stipulations for the bench trial, after which the following occurred:

THE DEFENDANT: Your Honor, I did not understand my attorney, I didn’t understand what was going on here. I need a jury trial.
THE COURT: You want a jury trial?
THE DEFENDANT: Yes.
THE COURT: Okay. That’s fine.

The court then asked the state if there were any other matters to be taken up before the jurors were brought in. Citing Ealey’s initial purported waiver, the prosecutor objected to his renewed request for a jury trial. The court remarked that Ealey was entitled to revoke his jury trial waiver at any time before the first witness was sworn. Thereafter, the following occurred:

THE COURT: Okay. Mr. Ealey, I want to make sure you understand every option that you have available to you. You have the option . . . [to] waive your right to a jury trial and enter into a stipulated bench trial and if you were to do so, the Court. . . would then sentence you — I’ll be honest with you, I will go ahead and grant you, I know you want to appeal this case,[] so I would go ahead and grant you a supersedeas bond, which would let you out of jail pending appeal and then depending on what the outcome of the appeal was ... go forward with your sentence or not. Do you understand what I just said?
THE DEFENDANT: I still need to confer with my counsel.
THE COURT: I just want to make sure, do you understand what I just said?
THE DEFENDANT: I understand perfectly what you just said.
THE COURT: Here’s the other option, to go forward with a jury trial, if you want to go forward with a jury trial that’s fine. I don’t care. It doesn’t matter to me. . . . I’m going to be sitting here no matter what, no matter who is sitting over there.
THE DEFENDANT: Right.
THE COURT: If you want to go forward with a jury trial that’s fine. Just to let you know — what’s the State’s recommendation at the conclusion of a bench trial?

When the prosecutor replied that she did not have a recommendation, the following transpired:

THE COURT: I know that Count I [trafficking in cocaine] is punishable by ten to 30 years and Count II [possession of more than one ounce of marijuana] would be punishable . . . from one to ten years and Count III [exceeding the speed limit] will be punishable up to 12 months.
I’ll just go ahead and let you know right now, Mr. Ealey, . . . because it doesn’t matter what the State is recommending. At the end of a bench trial I can do whatever I want to do and it’s the same thing after a jury trial.
If you want to go forward with your bench trial, I’ll tell you what I’ll do, I’ll give you the minimum, which is ten years to serve and a $200,000 [fine] on Count I. I’ll give you five years to serve on Count II to run concurrent and 12 months to serve on Count III to run concurrent and then like I said, I’ll go ahead and grant you a supersedeas bond. . . . Do you understand what I’m saying?
THE DEFENDANT: I understand.
THE COURT: If you want to go forward with a jury trial... I don’t care . . . but I can take into consideration the fact that the time of the court is being used to — if the jury finds you guilty. Now, if they find you not guilty, you walk out the door. But if they can find you guilty I can take into consideration other factors. Usually during a jury trial I find out a lot more information about a case. The minimum you’re going to get if a jury finds you guilty is ten years and the maximum you could get could be, which I am not bound by anything I said I would do at the end of a bench trial, the maximum you could get would be 31 years — no, excuse me, 41 years.
So I guess my question is, what do you want to do, I don’t care, but I need you, it’s your decision, you’ve got to make the decision. Your lawyer can’t make the decision, I don’t know who that is sitting behind you but she —
THE DEFENDANT: It’s my sister.
THE COURT: . . . She can’t make the decision for you. You can get advice from them but you’ve got to be the one to make the decision.

After a brief pause in the proceedings, the court stated that it needed an answer “in 30 seconds.” Ealey then asked the court questions about the supersedeas bond, and the matter was discussed in detail. The court again asked Ealey for his decision. After more pauses in the proceedings, the court asked Ealey for a final decision — whether he was waiving his constitutional right to a jury trial and electing to have the court decide the case without a jury. Ealey responded that “this was just dumped on me this morning.” The court replied that Ealey had had “plenty of time to think about it,” and again inquired whether Ealey wanted a jury trial or a bench trial. Ealey stated: “We’ll do the bench trial.” This colloquy followed:

THE COURT: You waive your constitutional right to a jury trial?
THE DEFENDANT: Yes.
THE COURT: Are you doing that freely and voluntarily? In other words, has anybody threatened you to do this?
THE DEFENDANT: No.
THE COURT: Is anybody coercing you to do this?
THE DEFENDANT: No.
THE COURT: Has anybody promised you any benefits to get you to do this?
THE DEFENDANT: No.
THE COURT: All right. I do accept your waiver of a jury trial and we will go forward with a bench trial.

After the stipulated bench trial, the court found Ealey guilty of the charged crimes. The court sentenced him to ten years on Count I, five years on Count II (concurrent with Count I), and twelve months on Count III (concurrent with Count I). It also imposed a $200,000 fine and granted a supersedeas bond.

The parties have cited, and we have found, no authority directly addressing the issue Ealey raises here. In the context of the volun-tariness of a guilty plea, the Supreme Court of the United States has held that the plea affects three constitutional rights, including the right to trial by jury, the Fifth Amendment right against self-incrimination, and the right to confront witnesses. As to a waiver of Fifth Amendment rights, voluntariness requires “a free and deliberate choice rather than intimidation, coercion, or deception.” Regarding guilty pleas, the Supreme Court of Georgia recently held in Pride v. Kemp that

judicial participation in plea negotiations is prohibited as a constitutional matter when it is so great as to render a guilty plea involuntary. A guilty plea must be knowingly and voluntarily entered. . . . Due to the force and majesty of the judiciary, a trial court’s participation in the plea negotiation may skew the defendant’s decision-making and render the plea involuntary because a defendant may disregard proper considerations and waive rights based solely on the trial court’s stated inclination as to sentence.

Although Pride involved the voluntariness of a guilty plea, the reasoning in that case is compelling here, as the instant case involves the voluntariness of the waiver of a jury trial right which, as noted above, is one of the constitutional rights affected by a guilty plea.

In this case, the trial court’s remarks were made in the course of obtaining Ealey’s waiver of his right to a jury trial. It is clear from the transcript that the trial court made some effort to discharge its duty to ensure that the waiver was knowing, intelligent and voluntary. But the court also remarked that if Ealey opted for a jury trial, it could take into consideration the fact that the court’s time was being used; that the court usually learned more about a case with a jury trial; and that Ealey faced the possibility of a longer sentence following a jury trial than that being offered by the court pursuant to a bench trial; the court announced its intention to bestow upon Ealey benefits (namely, minimum sentences and an appeal bond) in exchange for his waiver of the right to a jury trial.

Thus, the court went beyond ascertaining whether Ealey’s waiver of the constitutional right to a jury trial was knowing and intelligent, and involved itself in a process that should have been between Ealey and his attorney. Here, the court participated in the decision-making process, invoking “the force and majesty of the judiciary.” Viewing the comments made by the court in this case in the context of the circumstances under which Ealey made his decision, we conclude that there is a substantial likelihood that Ealey was unduly influenced by the court’s comments to waive his right to a jury trial.

Accordingly, the state has failed to carry its burden of showing that Ealey’s jury trial waiver was voluntary, and the trial court’s finding that the waiver was valid was clearly erroneous. Because a harmless error analysis cannot be applied to the waiver of a jury trial, reversal is required. As stated above, Ealey may be retried.

Judgment reversed.

Smith, P. J., Barnes, P. J., Mikell and McFadden, JJ., concur. Andrews and Dillard, JJ., dissent.

Andrews, Judge,

dissenting.

This record shows that the trial court offered Ealey a sentence of ten years to serve, a fine, and a supersedeas bond if he waived his right to a jury trial. But this record also shows, beyond any dispute, that the trial court never threatened Ealey with a heavier sentence if he proceeded to a jury trial. On the contrary, the trial court said only that if a jury found him guilty, the trial court “[could] take into consideration other factors” and that “the maximum you could get could be ... 41 years.” After an extensive discussion, Ealey agreed to a bench trial, and the trial court proceeded to a detailed confirmation of that agreement on the record.

The majority concedes that the issue here is not whether Ealey’s waiver was knowing or intelligent, but whether, despite the obvious signs of both these qualities in the record before us, it was “coerced” nonetheless. As the majority also concedes, we are well-advised to look to abundant Georgia precedent in the closely related context of guilty plea proceedings. The majority turns to the very recent decision of the Supreme Court of Georgia in Pride v. Kemp, 289 Ga. 353 (711 SE2d 653) (2011), and concludes that this decision authorizes its conclusion. On the contrary, the trial court in Pride made the bald threat that “If I tried the case and he was found guilty I would give him the maximum[, and] I would stack the sentences.” Id. at 353. It was on this basis, and not concerning a mere description of possible outcomes, that the Supreme Court reversed the habeas court’s denial of that defendant’s petition. Id. at 354 (defendant “heard the trial court repeatedly state that it would impose a longer sentence if [he] went to trial” and that the trial court “would prefer that [he] go to trial” so that the court could “ ‘give [him] what I would really like to give him’ ”).

Decided July 14, 2011.

Jonathon J. Majeske, for appellant.

Tracy Graham-Lawson, District Attorney, Luana Popescu, Assistant District Attorney, for appellee.

As Pride's comparison citation to one of this Court’s myriad cases affirming a guilty plea suggests, nothing approaching such a threat appears in this record. On the contrary, this trial court “made no statement as to the sentence that would be imposed” if Ealey declined a bench trial, and this trial court never “threaten[ed]” Ealey with a stricter sentence. Pride, 289 Ga. at 354, citing Works v. State, 301 Ga. App. 108, 111 (3) (686 SE2d 863) (2009). In fact, if this trial court had not advised Ealey of the maximum possible sentence for his crimes, his choice to forego a jury trial might well have been neither knowing nor voluntary, although we have frequently upheld guilty pleas even when this information is less clear than it might have been. See Johnson v. State, 298 Ga. App. 197, 199-201 (1), (2) (679 SE2d 763) (2009) (affirming denial of motion to withdraw guilty plea even when counsel’s advice to defendant that he was subject to a maximum sentence was not on the record, and when the trial court “thoroughly ascertained on the record that Johnson’s plea was voluntary and knowing”).

For all these reasons, the trial court did not err when it found Ealey’s waiver of a jury trial valid. I therefore dissent.

I am authorized to state that Judge Dillard joins in this dissent.

       See Lively v. State, 262 Ga. 510, 512 (3) (421 SE2d 528) (1992).

        Watson v. State, 274 Ga. 689, 691 (2) (558 SE2d 704) (2002) (footnote omitted).

        Balbosa v. State, 275 Ga. 574, 575 (1) (571 SE2d 368) (2002); Jackson v. State, 253 Ga. App. 559, 560 (560 SE2d 62) (2002).

        Brown v. State, 277 Ga. 573, 574 (2) (592 SE2d 666) (2004).

        Edwards v. State, 285 Ga. App. 227, 229 (2) (645 SE2d 699) (2007).

       Ealey had indicated moments earlier that he desired to appeal from the trial court’s denial of his motion to suppress.

         McCarthy v. United States, 394 U. S. 459, 466 (I) (89 SC 1166, 22 LE2d 418) (1969); see generally Brookhart v. Janis, 384 U. S. 1, 7-8 (86 SC 1245, 16 LE2d 314) (1966) (discussing the constitutional rights affected by a guilty plea).

        Colorado v. Spring, 479 U. S. 564, 573 (II) (B) (107 SC 851, 93 LE2d 954) (1987) (citation and punctuation omitted).

       289 Ga. 353 (711 SE2d 653) (2011).

       Id. at 354. Accord McDaniel v. State, 271 Ga. 552, 553-554 (2) (522 SE2d 648) (1999).

       See McCarthy, supra.

       See Brown, supra.

       See People v. Collins, 26 Cal.4th 297, 309 (1) (c) (27 P3d 726) (2001). Compare Smith v. State, 375 Md. 365, 397 (825 A2d 1055) (2003) (jury trial waiver held not involuntary where defendant elected bench trial in exchange for concessions when the defendant’s decision resulted from bargaining between defense counsel and the prosecutor, independent of any representations of leniency or harshness by the trial judge).

       See Pride, supra.

       See Skomer v. State, 183 Ga. App. 308, 309-310 (358 SE2d 886) (1987) (concerning guilty plea).

       See Balbosa, supra.

       Id. at 575 (2).


source: Caselaw Access Project

author: Ellington, Chief Judge.

license: Public Domain

text:
    A11A0165.
    BRUNDIGE v. THE STATE.
    (714 SE2d 681)
   Ellington, Chief Judge.

James Brundige stands accused in the Superior Court of Clarke County of manufacturing marijuana, OCGA § 16-13-30 (j) (1); possessing marijuana with intent to distribute, OCGA § 16-13-30 (j) (1); and possessing a controlled substance, OCGA §§ 16-30-28 (a) (6) (designating clonazepam as a controlled substance); 16-13-30 (a). Brundige filed a motion to suppress and exclude all evidence seized pursuant to two warranted searches of his home, arguing, inter alia, that the first search warrant, which designated “anomalous heat loss” from the residence as the thing to be seized, was not authorized under Georgia law. After a hearing, the trial court denied the motion, and we granted Brundige’s ensuing application for an interlocutory appeal. For the reasons explained below, we affirm.

The record shows the following undisputed facts. On May 21, 2009, a University of Georgia police officer applied for a warrant to search Brundige’s home. In the warrant, the officer gave his reasons for believing that there was a marijuana-growing operation inside the home, including “an amount of marijuana in a size that is consistent with a marijuana grow operation,” which the officer had found in a garbage can beside the driveway of the house. The officer explained how an electronic thermal detection and imaging device can be used to detect heat loss patterns, including “hot spots” that are consistent with the use of high-intensity lights to grow marijuana indoors. The officer requested a warrant to use such a device to search the residence for “[anomalous] heat loss occurring at the described premises as a result of an indoor marijuana growing operation, which is being possessed in violation of The Georgia Controlled Substances Act[.]” A judge granted the application and issued the warrant.

The officer, along with a detective who was trained as a ther-mographer, executed the warrant early the following morning. Based on the amount and pattern of heat loss detected by the thermal scanning device when it was pointed at the garage door, the ther-mographer concluded that there were hot spots inside the garage. The investigating officer went back to the residence one or two days after executing the warrant and left a copy of the warrant with Brundige’s father, who answered the door.

On May 26, 2009, the officer applied for a second warrant, relying in part on the thermal scan performed pursuant to the first warrant, this time to enter the residence to search for marijuana, items used in growing marijuana, such as growing lights, records and text messages associated with drug sales, and related evidence. The judge granted the application and issued the warrant. Officers executed the second warrant on May 29, 2009, and seized a quantity of marijuana, clonazepam pills, growing lights, Brundige’s computer, and other evidence.

Brundige moved to suppress and exclude all evidence resulting from both searches. The trial court denied his motion, ruling, inter alia, that “anomalous heat loss” is tangible evidence for which a search warrant may be issued under OCGA § 17-5-21 (a) (5). In addition, the trial court rejected Brundige’s arguments that the delay in leaving a copy of the first warrant at the residence rendered the evidence seized inadmissible and that the warrantless search of his garbage was not authorized. Based on these findings, the trial court denied Brundige’s motion to suppress.

1. Brundige takes issue with the trial court’s finding that anomalous heat loss is tangible evidence and contends that, because OCGA § 17-5-21 (a) (5) authorizes a search warrant only for tangible evidence, the first search warrant was not authorized under that Code section, with the result that the evidence seized pursuant to the first warrant is inadmissible. Further, he contends that the execution of the first warrant led to the issuance of the second warrant and, therefore, that all of the evidence seized in the execution of the second warrant is inadmissible under “the fruit of the poisonous tree” doctrine.

(a) As the State concedes, government agents must obtain a search warrant before aiming a thermal scanning device at a residence to detect relative amounts of heat emanating from the home. Kyllo v. United States, 533 U. S. 27, 38-40 (III) (121 SC 2038, 150 LE2d 94) (2001). Georgia’s search warrant statute provides, inter alia, that an appropriate judicial officer “may issue a search warrant for the seizure of. . . [a]ny item, substance, object, thing, or matter, other than the private papers of any person, which is tangible evidence of the commission of the crime for which probable cause is shown.” OCGA § 17-5-21 (a) (5). By definition, a search warrant under this subsection must designate tangible evidence of an offense as the objective of the search. The phrase “tangible evidence” is not defined in Georgia’s Criminal Procedure Code, or in any of the disparate Code sections in which the General Assembly has used that phrase.

In construing [a] statute, we apply the fundamental rules of statutory construction that require us to construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. At the same time, we must seek to effectuate the intent of the legislature.

(Citation and punctuation omitted.) O’Neal v. State, 288 Ga. 219, 220-221 (1) (702 SE2d 288) (2010). With these principles in mind, we have reviewed legal and general dictionaries to discern the common and ordinary meaning of the phrase “tangible evidence.” We note that logic dictates that use of the modifier “tangible” distinguishes such evidence from its opposite type, that is, intangible evidence. The phrase “intangible evidence” has been used to describe testimony or verbal statements. Because heat radiating from a building is not simply testimony or verbal evidence and because it is definable and measurable; it is real and substantial, rather than imaginary; it is capable of being clearly grasped by the mind; and it can, at least in some cases, be perceived through the sense of touch, we conclude that heat loss that is measured and recorded by a thermal scanner fits within the scope of “tangible evidence” as that term is used in OCGA § 17-5-21 (a) (5). Accordingly, the trial court did not err in concluding that that Code section authorized the first search warrant issued in this case, for the seizure of “anomalous heat loss” occurring at Brundige’s home.

(b) We note that, when the United States Supreme Court decided Kyllo v. United States, electronic thermal scanning, a sense-enhancing technology that can be used to discern a person’s activities that are being conducted in a private, constitutionally protected area, was not “in general public use.” (Citation and punctuation omitted.) Kyllo v. United States, 533 U. S. at 34 (III). As Brundige notes, the Georgia General Assembly could prohibit surveillance through the use of thermal scanning technology, as it has done with devices that allow the user to observe or record sounds, visual images, or wire, oral, or electronic communications. OCGA § 16-11-62 (2). In that event, the General Assembly may also opt to provide special “investigation warrant” procedures to allow police officers to conduct surveillance using a thermal scanning device, as it has done for devices currently embraced within OCGA § 16-11-60 et seq. See OCGA § 16-11-64. The issue of whether the general provisions of OCGA § 17-5-21 would still apply if thermal scanning is made a prohibited type of surveillance, however, is not before us in this case.

2. Brundige contends that the failure of an officer who executes a search warrant to contemporaneously leave a copy either with someone or in a conspicuous place on the premises, as required by OCGA § 17-5-25, “is not merely a minor technical flaw, but rather a violation of constitutional magnitude.” Based on this, Brundige contends that the officer’s failure in this case to leave a copy of the first warrant immediately after executing it by conducting the thermal scan requires suppression of the evidence seized in the execution of the warrant.

As with other statutory warrant requirements, a violation of OCGA § 17-5-25 “does not necessarily authorize evidence suppression.” State v. Stafford, 277 Ga. App. 852, 853 (627 SE2d 802) (2006). On the contrary, OCGA § 17-5-31 provides that “[n]o search warrant shall be quashed or evidence suppressed because of a technical irregularity not affecting the substantial rights of the accused.” Therefore, “absent some showing of prejudice by the defendant,” the failure to leave a signed and dated copy of the warrant is an omission that is “technical in nature and not grounds for suppression.” State v. Stafford, 277 Ga. App. at 854.

The record shows that there was merely a one- or two-day delay after the execution of the first warrant before the officer left a copy at the residence. Further, the only thing seized in the execution of the first search warrant was a thermal image, and not the personal property of any resident of the house. Brundige has not specified any harm that he suffered as a result of the officer’s delay in complying with OCGA § 17-5-25. Under these circumstances, we conclude that Brundige has not shown that he was prejudiced by the short delay in his receipt of a copy of the first warrant. Consequently, the trial court did not err in denying Brundige’s motion to suppress on this basis. State v. Stafford, 277 Ga. App. at 854.

3. Brundige contends that he had a subjective expectation of privacy in the garbage in which police officers found marijuana that was part of the basis for the first and second warrant applications. In addition, he contends that a local ordinance that prohibits the unauthorized rummaging through trash in his community shows that society accepts his expectation of privacy as objectively reasonable. As a result, he contends, the warrantless search of his garbage was illegal, and the evidence seized pursuant to both search warrants, which were issued based in part on the marijuana found in the garbage, is inadmissible.

The warrantless search and seizure of garbage violates the Fourth Amendment only if the person who discarded the garbage “manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable.” (Citations omitted.) California v. Greenwood, 486 U. S. 35, 39 (II) (108 SC 1625, 100 LE2d 30) (1988). In California v. Greenwood, the United States Supreme Court concluded that “society would not accept as reasonable [the] respondents’ claim to an expectation of privacy in trash left for collection in an area accessible to the public,” in that case, at the curb outside the curtilage of the home. Id. at 41 (II). In reaching that conclusion, the High Court found that the express purpose of placing garbage at one’s curb for collection is to “convey[ ] it to a third party, the trash collector, who might himself [then] sort[ ] through [the] trash or permití ] others, such as the police, to do so[,]” and this defeats a claim to Fourth Amendment protection. Id. at 40 (II). In applying this principle, this Court has held that

the act of placing garbage for collection is an act of abandonment which terminates any [F]ourth [A]mendment protection because, absent proof that a person has made some special arrangement for the disposition of his garbage inviolate, he has no reasonable expectation of privacy with respect to it once he has placed it for collection.

(Citation, punctuation and footnote omitted.) Scott v. State, 270 Ga. App. 292, 294 (1) (606 SE2d 312) (2004).

Even if the Athens-Clarke County trespassing ordinance protects garbage placed for collection on county streets from snoops, thieves, and vandals, such trash is still subject to inspection by county employees. Athens-Clarke County Ordinance § 3-5-17 (c). Nothing in the record shows that Brundige made any special arrangement for the disposition of his garbage inviolate; rather, he placed his garbage in a can and put the can near the curb so that the trash collector would take the garbage and dispose of it. The trial court did not err in ruling that Brundige exposed his garbage to the public sufficiently to defeat his claim to Fourth Amendment protection. Scott v. State, 270 Ga. App. at 294 (1).

Decided July 14, 2011

Benjamin A. Pearlman, for appellant.

Kenneth W. Mauldin, District Attorney, Antonio E. Veal, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

       “The trial court’s application of the law to undisputed facts when ruling on [a motion to suppress or a motion in limine to exclude evidence] is subject to de novo appellate review.” (Footnote omitted.) England v. State, 302 Ga. App. 12, 14 (1) (689 SE2d 833) (2009).

       See generally Wayne R. LaFave, 1 Search and Seizure, A Treatise on the Fourth Amendment, § 2.2 (e) (4th ed. 2004).

       See, e.g., OCGA §§ 9-11-30 (b) (1) (regarding attaching a subpoena for the production of documentary or tangible evidence to a notice of deposition); 17-5-1 (“When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within the person’s immediate presence” and may seize “any stolen or embezzled property, any item, substance, object, thing, or matter, the possession of which is unlawful, or any item, substance, object, thing, or matter, other than the private papers of any person, which is tangible evidence of the commission of a crime against the laws of this state.”); 34-8-197 (h) (2) (B) (regarding an individual’s obligation to provide tangible evidence of his or her efforts to obtain work while receiving unemployment benefits); 50-27-3 (24) (defining a ticket as tangible evidence issued by the lottery to provide participation in a lottery game, as distinguished from an intangible share).

       See, e.g., Black’s Law Dictionary (9th ed. 2009) (defining “tangible evidence” as “[plhysical evidence that is either real[, that is, ‘[plhysical evidence (such as clothing or a knife wound) that itself plays a direct part in the incident in question,’] or demonstrative[, that is, ‘[plhysical evidence that one can see and inspect (i.e. an explanatory aid, such as a chart, map, and some computer simulations) and that, while of probative value and [usually] offered to clarify testimony, does not play a direct part in the incident in question’].”); The Law Dictionary (Anderson Publishing Co. 2002) (defining “tangible” as “descriptive of something which may be felt or touched; corporeal”); Webster’s Third New Inti. Dictionary (G. & C. Merriam Co. 1976) (defining “tangible” as “capable of being touched”; “substantially real: material”; “capable of being realized by the mind: conceived or thought of as definable or measurable”); Random House Webster’s Unabridged Dictionary (Random House, Inc. 2d ed. 1998) (defining “tangible” as “1. capable of being touched; discernible by the touch; material or substantial. 2. real or actual, rather than imaginary or visionary: the tangible benefits of sunshine. 3. definite; not vague or elusive: no tangible grounds for suspicion); Collins English Dictionary, Complete and Unabridged (HarperCollins Publishers 10th ed. 2009) (defining “tangible” as “1. capable of being touched or felt; having real substance: a tangible object; 2. capable of being clearly grasped by the mind; substantial rather than imaginary: tangible evidence; 3. having a physical existence; corporeal: tangible assets”).

        Murray v. United States, 487 U. S. 533, 536-537 (II) (108 SC 2529, 101 LE2d 472) (1988) (explaining that the exclusionary rule and the independent source doctrine apply both to tangible materials seized during an unlawful search and to intangible evidence, that is, testimony concerning knowledge acquired during a search); Wong Sun v. United States, 371 U. S. 471, 485-486 (II) (83 SC 407, 9 LE2d 441) (1963) (explaining that the exclusionary rule applies both to “physical, tangible materials” seized during an unlawful search and “verbal evidence,” such as statements overheard during an unlawful invasion); Dixie Ohio Express v. Brackett, 106 Ga. App. 862, 873 (7) (128 SE2d 642) (1962) (“Real evidence is such evidence as is addressed directly to the senses of the court or jury and which speaks to them without the intervention of the testimony of witnesses.”) (citations omitted).

       Because we conclude that the first search warrant was authorized under OCGA § 17-5-21 (a) (5), we will not review the trial court’s conclusion that the warrant was also authorized under OCGA § 17-5-21 (a) (1), which authorizes search warrants for “[a]ny instruments, articles, or things, including the private papers of any person, which are designed, intended for use, or which have been used in the commission of the offense in connection with which the warrant is issued[.]” In addition, having rejected Brundige’s argument that the first search warrant was unauthorized, we need not reach the issue of whether the inclusion of evidence seized pursuant to the first warrant in the application for the second warrant undermined the legitimacy of the second warrant. Cf. Kyllo v. United States, 533 U. S. at 40 (III).

       See Kyllo v. United States, 533 U. S. at 29-30 (I); People v. Deutsch, 44 Cal. App. 4th 1224, 1229-1230 (I) (52 Cal. Rptr. 2d 366) (1996); John Wesley Hall, 1-9 Search and Seizure § 9.15 (3d ed. 2010) (Electronic thermal scanning does not merely measure wasted heat. Rather, “a trained thermal imaging operator can likely determine that a room is occupied and likely what the occupant of the room is doing (such as watching television, eating a meal, exercising, going to the bathroom, or even having sex).”) (footnotes omitted).

       With specified exceptions, it is unlawful, “through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view!.]” OCGA § 16-11-62 (2). OCGA § 16-11-60 (1) defines “device” as, with certain exceptions,
      an instrument or apparatus used for overhearing, recording, intercepting, or transmitting sounds or for observing, photographing, videotaping, recording, or transmitting visual images and which involves in its operation electricity, electronics, or infrared, laser, or similar beams!, including but not limited to] ... any camera, photographic equipment, video equipment, or other similar equipment or any electronic, mechanical, or other apparatus which can be used to intercept a wire, oral, or electronic communication!.]

       OCGA § 16-11-64 (b) provides:
      When in the course of his or her official duties, a law enforcement officer desiring to make use of any device, but only as such term is defined in Code Section 16-11-60, and such use would otherwise constitute a violation of Code Section 16-11-62, the law enforcement official shall act in compliance with the provisions provided for in this part.
      See also OCGA § 16-11-64 (c) (investigation warrants permitting the use of a device as defined in OCGA § 16-11-60); 18 USC § 2510 et seq. (The Crime Control and Safe Streets Act of 1968, Title III) (regulating the interception and disclosure of wire, oral, and electronic communications); Wayne R. LaFave, 1 Search and Seizure, A Treatise on the Fourth Amendment, § 2.2 (f) (4th ed. 2004).

       “If [a search] warrant is executed, the duplicate copy shall be left with any person from whom any instruments, articles, or things are seized; or, if no person is available, the copy shall be left in a conspicuous place on the premises from which the instruments, articles, or things were seized.” OCGA § Í7-5-25. See OCGA § 17-5-24 (A search warrant “shall be issued in duplicate.”).

       Brundige cites to Athens-Clarke County Ordinance § 3-5-17 (c), which concerns “[t]respassing, etc.” and provides as follows:
      It shall be unlawful for any unauthorized person to rummage in any garbage can or to hunt for any materials in any garbage can for any purpose whatsoever on the streets of Athens-Clarke County. For the purpose of this section, “unauthorized person” shall not mean a person in the employ of Athens-Clarke County!.]

       See also Scott v. State, 270 Ga. App. 292, 294 (1) (606 SE2d 312) (2004) (accord); Perkins v. State, 197 Ga. App. 577, 579 (1) (398 SE2d 702) (1990) (accord).

       See Wayne R. LaFave, 1 Search and Seizure, A Treatise on the Fourth Amendment, § 2.6 (c) (4th ed. 2004).


author: Phipps, Presiding Judge.

text:
    A11A0226.
    SOUTHEASTERN SITECAST, INC. v. BUONOCORE et al.
    (714 SE2d 686)
   Phipps, Presiding Judge.

Southeastern Sitecast, Inc. filed a complaint against “Richard L. Buonocore, Individually and Richard L. Buonocore d/b/a Bonacori Custom Homes,” seeking to recover monies allegedly owed for construction goods it sold and delivered. Summary judgment was entered against Southeastern, which appeals. For reasons that follow, we reverse.

Southeastern attached to its complaint the invoices for which it sought payment. Each invoice was billed to “Bonacori Custom Homes”; each referenced a “Jobsite Location” of “Briar Rose Lot 30”; each was dated in either March 2008 or May 2008; and each detailed the construction goods provided thereunder.

The summary judgment motion argued essentially that Southeastern had sued the wrong party. Accompanying the motion was the affidavit of Buonocore, who stated that he worked in the residential construction industry and served as president of two building companies: (i) Bonacori Custom Homes, Inc., which was incorporated in Michigan in April 2002; and (ii) Bonacori Custom Homes of Georgia, LLC, which was formed in Georgia in September 2008. Buonocore claimed that, between March and June 2008, the Michigan corporation “ordered certain goods from Southeastern Sitecast, Inc. in connection with work that it was performing on land known as Lot 30 of the Briar Rose development.” However, Buonocore asserted,

Individually, I have never transacted any business with Southeastern Sitecast, Inc. All of my dealings with Southeastern Sitecast, Inc. have taken place in my capacity as president of Bonacori Custom Homes, Inc. The entity named in this lawsuit as Richard L. Buonocore d/b/a Bonacori Custom Homes does not exist. As such I have never transacted nor could I ever transact any business in that name or act as that entity.

The trial court granted the motion for summary judgment. OCGA § 9-11-56 (c) provides that summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “Thus, to prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law.” “In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.”

On appeal, Southeastern maintains that summary judgment was not authorized. It points out that it filed opposition to the motion seven days before the court entered the order granting summary judgment. Included in the opposition was an affidavit by Southeastern’s owner, who asserted:

At all relevant times . . . Richard L. Buonocore conducted business with Southeastern Sitecast, Inc., in an individual capacity and under the trade name of Bonacori Custom Homes. It was never communicated to me, or any of Southeastern Sitecast’s employees, that Bonacori Custom Homes was a Michigan corporation licensed to do business in the State of Georgia. . . . Southeastern Sitecast, Inc., was under the belief that it was doing business with Richard L. Buonocore individually and Richard L. Buonocore d/b/a Bonacori Custom Homes.

Southeastern thus argues that the record before the trial court demonstrated a material issue of fact rendering summary judgment improper.

As Southeastern acknowledges, its opposition was not timely filed within the 30-day period contemplated by Uniform Superior Court Rule (USCR) 6.2. It does not automatically follow, however, that Buonocore’s motion should have been granted. As Buonocore acknowledges, “[t]here is no such thing as a default summary judgment.” Generally, “the failure to file a response to a motion for summary judgment or to other motions pursuant to USCR 6.2 does not entitle the movant to grant of the motion but merely waives the opponent’s right to present evidence in opposition to the motion.” The burden remains on the movant to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. “Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met.”

Objections to the untimeliness of responses to a motion for summary judgment will be deemed waived unless raised in the trial court. Here, “the court’s order is silent on the issues of whether [Southeastern’s opposition] was considered and, if not, why not.” Based on the record before us, Southeastern’s opposition was not objected to and was properly before the trial court.

When the record is viewed in favor of Southeastern, summary judgment to the defendants was not authorized.

Decided July 14, 2011.

Conoscienti & Kendall, Joseph A. Conoscienti, for appellant.

Bryan, Cave, Powell & Goldstein, James M. Watson, for appel-lees.

Judgment reversed.

Andrews and McFadden, JJ., concur in judgment only.

        Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citations and punctuation omitted).

       Id. at 624 (1) (a) (citation and punctuation omitted).

       USCR 6.2 provides, “Unless otherwise ordered by the judge, each party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion.” (Nothing in the record indicates that a summary judgment hearing was held or requested.)

        Milk v. Total Pay & HR Solutions, 280 Ga. App. 449, 450-451 (634 SE2d 208) (2006).

       Id. (punctuation and footnote omitted).

        Landsberg v. Powell, 278 Ga. App. 13, 15 (627 SE2d 922) (2006).

        Milk, supra.

        Cowart, supra at 624 (1) (a).

        See Pruitt v. Tyler, 181 Ga. App. 174, 175 (1) (351 SE2d 539) (1986); see generally Spratt v. Henderson Mill Condo. Assn., 224 Ga. App. 761, 765 (3) (b) (481 SE2d 879) (1997) (waiver results where no objection was made to the late filing of an affidavit — whether the affidavit was in support of, or in opposition to, a motion for summary judgment).

        Pruitt, supra. Cf. Curry v. Sutherland, 279 Ga. 489, 491 (3) (614 SE2d 756) (2005) (in order granting summary judgment motion, court stated that the response to motion was untimely and therefore not considered).

        Pruitt, supra at 176 (1). Cf. Hosley v. Davidson, 211 Ga. App. 529, 530-531 (1) (439 SE2d 742) (1993) (affirming grant of motion to strike late response to motion for summary judgment where trial court had not extended the 30-day period specified in USCR 6.2).

       See generally Crisp Pecan Co. v. Wiggins Produce Co., 222 Ga. App. 747, 748-749 (2), (3) (476 SE2d 60) (1996).


author: SMITH, Presiding Judge. MCFADDEN, Judge,

text:
    A11A0251.
    WMW, INC. v. AMERICAN HONDA MOTOR COMPANY, INC.
    (714 SE2d 689)
   SMITH, Presiding Judge.

In this case, we interpret for the first time OCGA § 10-1-664, the anti-encroachment provision of the Georgia Motor Vehicle Franchise Practices Act (“the Act”), OCGA § 10-1-620 et seq. The sole issue on appeal is whether WMW, Inc. d/b/a Honda Garland (“WMW”) has standing under the Act to petition to prohibit or enjoin the establishment of a new dealership. The trial court concluded that WMW does not have standing and granted American Honda Motor Company, Inc.’s (“Honda”) motion to dismiss WMW’s complaint. We agree that WMW does not have standing to challenge the establishment of the new dealership and therefore affirm.

We review the trial court’s grant of a motion to dismiss for failure to state a claim de novo, and will not affirm unless

(1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

(Citation, punctuation and footnote omitted.) Professional Energy Mgmt. v. Necaise, 300 Ga. App. 223, 224 (1) (684 SE2d 374) (2009). See OCGA § 9-11-12 (b) (6). See also Hendry v. Wells, 286 Ga. App. 774, 781 (2) (650 SE2d 338) (2007) (motion to dismiss for lack of standing requires determination of whether allegations of complaint disclose with certainty that plaintiff would not be entitled to relief under any state of provable facts).

The relevant facts here are undisputed. WMW is a Georgia corporation which has operated Honda Carland, a Honda sales and service dealership, since 1976 under a franchise agreement with Honda. That dealership is also WMW’s principal place of business and is located in Roswell, Georgia. WMW also operates a separate service center in Alpharetta, Georgia. In January 2010, Honda notified WMW that it planned to enter into an agreement authorizing a new Honda sales and service dealership to be located in Cumming, Georgia. WMW objected to the establishment of a new dealership within the “relevant market area” of its separate service facility located in Alpharetta on the ground that it would be in violation of the Act, more particularly, OCGA § 10-1-664.

WMW subsequently filed a complaint against Honda and Honda’s proposed new franchisee, Sobh Automotive of Cumming, Inc. (“Sobh”), seeking to enjoin the establishment of the new Sobh Honda dealership. Following a hearing, the trial court concluded that “WMW lacks standing to challenge the establishment of a new dealership” and dismissed WMW’s complaint with prejudice as to both Honda and Sobh. It is from this order that WMW appeals.

The relevant portions of the Act requiring interpretation here are OCGA §§ 10-1-622 and 10-1-664. In reviewing them, we apply these basic principles:

In interpreting statutes, we are mindful of the “golden rule” of statutory construction, which requires that we follow the literal language of the statute unless doing so produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else. It is also a fundamental rule of statutory construction that where the language of a statute is plain and unambiguous, the terms used therein should be given their common and ordinary meaning.

(Citations, punctuation and footnotes omitted.) Pipe Solutions v. Inglis, 291 Ga. App. 328, 330-331 (2) (661 SE2d 683) (2008).

OCGA § 10-1-664 (a) provides:

Any franchisor which intends to establish a new dealership or to relocate a current dealership for a particular line-make motor vehicle within the relevant market area of an existing dealership of the same line-make motor vehicle shall give written notice of such intent by certified mail or statutory overnight delivery to such existing dealership. . . .

Paragraph (b) provides in part:

Any existing dealership in whose relevant market area a franchisor intends to establish a new dealership or to relocate a current dealership may within 60 days of the receipt of the notice petition a superior court to enjoin or prohibit the establishment of the new or relocated dealership within the relevant market area of the existing dealership. . . .

(Emphasis supplied.) “Relevant market area” is defined as “the area located within an eight-mile radius of an existing dealership.” (Emphasis supplied.) OCGA § 10-1-622 (13.1). “Dealership” is defined as “dealer, if the dealer is a corporation. ...” OCGA § 10-1-622 (2) (A). And “dealer”

means any person engaged in the business of selling, offering to sell, soliciting, or advertising the sale of new motor vehicles and who is licensed or otherwise authorized to utilize trademarks or service marks associated with one or more makes of motor vehicles in connection with such sales. The term “dealer” shall also include any person who engages exclusively in the repair of motor vehicles, except motor homes, if such repairs are performed pursuant to the terms of a franchise or other agreement with a franchisor or such repairs are performed as part of a manufacturer’s or franchisor’s warranty. . . .

(Emphasis supplied.) OCGA § 10-1-622 (1).

1. WMW argues that because its Alpharetta service center is a “dealership” under the Act and is located within eight miles of the proposed new dealership, it has standing to object to the proposed new dealership. WMW contends that “[a] corporation is the ‘dealer’ wherever it carries out the functions that define a dealer, and therefore protected at all locations the dealer sells or services franchisor’s vehicles. The Service Center does not have to be a separate person or corporation from WMW to fit that definition.”

The threshold question to determine whether WMW has standing is to ascertain if under OCGA § 10-1-664 (b) it is an “existing dealership in whose relevant market area a franchisor intends to establish a new dealership.” Because WMW is a corporation, “dealership” means “dealer” which is defined as “any person engaged in the business of selling . . . new motor vehicles,” or “any person who engages exclusively in the repair of motor vehicles.” OCGA § 10-1-622 (1) and (2) (A). WMW falls under the former definition of “dealer” as it does not engage exclusively in the repair of motor vehicles, but rather is engaged in the business of selling new motor vehicles in addition to repairing them.

Next we determine whether the proposed new dealership is within WMW’s relevant market area. Because “relevant market area” is defined as “the area located within an eight-mile radius of an existing dealership,” where “dealership” here means the “person” of WMW the corporation, we must necessarily consider the location of the “person,” i.e., WMW the corporation. See OCGA § 1-2-1 (b) (“Corporations are artificial persons”). “The general rule of law is that a domestic corporation resides where its principal office or place of business is situated.” Citizens and Southern Bank v. Taggart, 164 Ga. 351, 356 (138 SE 898) (1927). See also OCGA § 14-2-510 (b) (1) and (d) (venue). In this case, WMW’s principal place of business and registered office, the Honda Carland sales and service center, are both in Roswell, Georgia.

Therefore, under the plain language of OCGA § 10-1-664 (b), WMW’s separate service center in Alpharetta is not, by definition, an “existing dealership in whose relevant market area a franchisor intends to establish a new dealership.” This is because under OCGA § 10-1-622 (1) and (2) (A), “dealership” or “dealer” is defined as the “person,” which in this case was a corporation. If the legislature had intended for a corporate “dealership” or “dealer” to be defined according to the corporation’s facilities, it could have done so as it did with a noncorporate or individual dealer: “All business assets used in connection with the dealer’s business pursuant to the franchise including, but not limited to, the dealership facilities. ...” (Emphasis supplied.) OCGA § 10-1-622 (2) (B). Even where the dealership is a noncorporate or individual dealer, “dealership facilities” is defined as “the location at which a dealer, pursuant to a franchise, maintains a permanent showroom for new motor vehicles.” (Emphasis supplied.) OCGA § 10-1-622 (3). We use the venerable principle “expres-sum facit cessare taciturn” to conclude that “if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned.” (Citation and punctuation omitted.) Hinton v. State of Ga., 224 Ga. App. 49, 50 (2) (479 SE2d 424) (1996).

[T]his court is charged with the duty of interpreting statutes, not enacting them. ... It is a fundamental principle that the legislature, and not the courts, is empowered by the Constitution to decide public policy, and to implement that policy by enacting laws; and the courts are bound to follow such laws if constitutional.

(Citations and punctuation omitted.) Housing Auth. &c. v. Ellis, 288 Ga. App. 834, 836 (655 SE2d 621) (2007).

“Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” (Citation omitted.) Six Flags Over Ga. II v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003). For the reasons above, we hold that under the plain language of the statute, see Pipe Solutions, supra, 291 Ga. App. at 330-331 (2), WMW’s separate service center in Alpharetta is not a dealership within the meaning of OCGA §§ 10-1-664, 10-1-622 (1) and (2) (A), and that the trial court did not err in concluding that WMW did not have standing to object to the new dealership on this ground.

2. WMW contends that the trial court erred in refusing to consider the affidavit of Keith Campbell, vice president of WMW The affidavit states that Honda assigned a different dealer number to WMW’s Alpharetta service center than it assigned to WMW’s Roswell sales center, and that Honda required WMW to establish the separate service center within five miles of the sales center. But in light of our holding in Division 1 that the plain language of OCGA § 10-1-664 controls, this affidavit does not alter the outcome.

Judgment affirmed.

Barnes, P. J., Andrews, Mikell and Dillard, JJ., concur. Adams and McFadden, JJ., dissent.

MCFADDEN, Judge,

dissenting.

I respectfully dissent. Because WMW’s facility in Alpharetta, Georgia, is part of its dealership, as that word is defined in OCGA § 10-1-622 (2) (A), WMW has standing to pursue its action under OCGA § 10-1-664 (b). Therefore, I would reverse the decision of the superior court dismissing WMW’s complaint.

The majority’s error arises from a failure to recognize that corporations and other artificial persons, unlike natural persons, can occupy more than one place at a time. The General Assembly distinguished between dealers who are natural persons and dealers who are artificial persons, not to discriminate between them, but to treat them the same, notwithstanding that difference.

The purpose of the Act is to regulate the relationship between automobile franchisors and their franchise dealers, and in doing so “placet 1 restrictions on the franchisor’s ability to establish a new dealership near an existing one (OCGA § 10-1-664 (a)).” (Footnote omitted.) DaimlerChrysler Motors Co. v. Clemente, 294 Ga. App. 38, 47-48 (2) (a) (668 SE2d 737) (2008).

Consequently this case turns on the meaning of the word “dealership,” which is a defined term under the Act. The Act provides alternative definitions, distinguishing between dealers who are corporations or other artificial persons and dealers who are individuals. Under the Act,

“Dealership” means:
(A) The dealer, if the dealer is a corporation, partnership, or other business organization; or
(B) All business assets used in connection with the dealer’s business pursuant to the franchise including, but not limited to, the dealership facilities, the franchise, inventory, accounts receivable, and good will if the dealer is an individual.

OCGA § 10-1-622 (2).

As to dealers who are individuals, the definition of “dealership” expressly provides that the dealership encompasses all of its assets, wherever located. The statutory definition at subsection (B) makes clear that a dealership can occupy multiple locations at one time, notwithstanding that an individual dealer — obviously — cannot. There was no need to so specify as to dealers that are corporations or other artificial persons, because artificial persons are not so constrained. See OCGA § 14-2-302 (10) (“every corporation has the same powers as an individual to do all things necessary or convenient to carry out its business and affairs, including without limitation power ... [t]o . . . locate offices . . . within or without this state.”). The majority errs in holding to the contrary; the 1927 case it cites deals with venue and does not support its holding. See Maj. Op., p. 4, citing Citizens and Southern Bank v. Taggart, 164 Ga. 351, 356 (138 SE 898) (1927). The General Assembly did not need to explain that corporate dealerships can occupy multiple locations, because it is clear that corporate dealers can do so.

I am authorized to state that Judge Adams joins in this dissent.

Decided July 14, 2011

Bondurant, Mixson & Elmore, H. Lamar Mixson, Lisa R. Strauss, for appellant.

Nelson, Mullins, Riley & Scarborough, Richard K. Hines V, Smith, Gambrell & Russell, William V. Hearnburg, Jr., for appellee.

       It is undisputed that WMW’s Roswell sales and service center is more than eight miles from the proposed new dealership.


author: PHIPPS, Presiding Judge.

text:
    A11A0431.
    GARLAND v. THE STATE.
    (714 SE2d 707)
   PHIPPS, Presiding Judge.

Convicted of numerous offenses, Mack Garland raises claims concerning trial counsel ineffectiveness, evidentiary sufficiency, and merging of counts for sentencing purposes. We find merit in only the merger claim, and thus affirm in part, vacate in part, and remand the case for resentencing.

For purposes here, the trial evidence can be summarized as follows. On December 10, 2003, two men broke into a residence and demanded at gunpoint drugs from the homeowner, an admitted marijuana dealer. During the encounter, one of the intruders used a gun to strike the homeowner about the head. The homeowner was able to grab his own gun and shoot the other intruder. Both intruders then fled the scene, without having obtained the marijuana they had demanded.

In connection therewith, three men were indicted. One of them, Russell Stahl, entered guilty pleas to several charges in exchange for his testimony about the incident. Accordingly, at trial, Stahl testified that he and Garland’s brother were the intruders, and that although Garland had not gone to the residence with them, he had plotted and then helped cover up the attempted marijuana heist. The state presented additional evidence to corroborate Stahl’s account. Neither Garland nor his co-defendant (Garland’s brother) testified.

The jury found Garland guilty as charged in five counts. After counts were merged, Garland was sentenced on counts of burglary, attempted armed robbery, aggravated assault, and attempted possession of marijuana. This court affirmed the judgment of conviction, rejecting, inter alia, Garland’s contention that the trial court had erred in refusing to appoint new appellate counsel. (The record shows that Garland had expressed to the trial court that he anticipated pursuing on appeal a contention that his trial counsel had been ineffective.)

“On writ of certiorari, the Supreme Court of Georgia reversed this portion of our decision, holding that Garland was ‘constitutionally entitled to the appointment of conflict-free counsel to represent him on appeal.’ ” The Supreme Court thus remanded “the case for the trial court to consider [Garland’s] allegation of ineffective assistance under the representation of new counsel.” In accordance therewith, this court adopted the Supreme Court’s opinion and remanded the case for further proceedings.

On remand to the trial court, Garland was appointed new counsel to pursue issues of ineffective assistance of counsel, and he filed an amended motion for new trial. After a hearing, the trial court denied that motion. He appeals therefrom.

1. Garland maintains that his trial counsel was ineffective. To prevail on a claim of ineffective assistance of counsel,

a defendant must establish, pursuant to Strickland v. Washington, that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. ... In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review a trial court’s legal conclusions de novo.

We need not address both components of the Strickland test if the showing on one is insufficient, nor must we address the components in any particular order. Garland complains that his trial lawyer did not object to various jury instructions.

(a) Citing Eckman v. State, Garland claims that the pattern jury charge on knowledge given by the trial court misstated the law, because a portion of it was stated in the conjunctive rather than the disjunctive. According to Garland, the instruction was misleading in that it instructed the jury that it could acquit him only if the evidence showed that neither he nor his co-defendant had knowledge of the crimes and that neither he nor his co-defendant committed the crimes.

We review the final charge as a whole to determine whether trial counsel’s failure to object to the contested portions of the knowledge instruction constituted reversible error. Here, the jurors were adequately informed that the state had the burden of proving each charge of the indictment beyond a reasonable doubt. The jurors were specifically informed that knowledge on the part of the defendant that a crime or crimes were being committed and that the defendant knowingly and intentionally participated in or helped in the commission of such crime or crimes must be proved by the state beyond a reasonable doubt. The jurors were instructed to consider separately each charge in the indictment, that the guilt of one defendant was not a finding of guilt as to the other, and that the jury had the duty to acquit Garland if the state failed to prove his guilt beyond a reasonable doubt. Moreover, the court explained to the jurors that two verdict forms — one for Garland and a separate one for his co-defendant — were being provided to them, pointing out that there were five counts against Garland and six counts against his co-defendant. Further, the court informed the jurors that the charges set forth on the verdict forms corresponded to the indictment, which was also given to the jurors for purposes of deliberations. Given those circumstances, we find no deficient performance.

(b) Garland asserts that his trial counsel failed to object to a violation of OCGA § 17-8-57. Pursuant to that Code section: “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.” Garland cites a sentence within the portion of the final charge that instructed the jurors on accomplice testimony.

As the Supreme Court of Georgia instructed in cases such as Sedlak v. State, in determining whether an excerpt from a final charge violated OCGA § 17-8-57, we must review the charge as a whole. And in Patel v. State, the Supreme Court of Georgia recognized that in “those instances in which a technical violation of OCGA § 17-8-57 occurs in the giving of a jury charge, when the charge does not otherwise assume certain things as facts and intimate to the jury what the judge believes the evidence to be, the giving of additional or curative instructions may suffice to correct the error.”

Here, the jury instructions given on accomplice testimony tracked the standard pattern jury instruction. And the complained-of language adequately instructed the jurors that each of the defendants had been charged with multiple counts and they (the jurors) were to consider each count independently in assessing whether evidence corroborating the testimony of a single witness was required. Even assuming that the cited language, in isolation, could be viewed as a “technical violation,” it is clear that the charge did not otherwise assume things as facts and intimate to the jury what the judge believed the evidence to be; therefore, the additional instructions concerning accomplice testimony corrected any error. Given those circumstances, trial counsel’s failure to object was not deficient performance.

(c) Garland complains that his trial counsel did not object when the trial court rejected his request for a jury instruction on impeachment by prior felony conviction. Garland points to evidence that the state’s witness Stahl was a convicted felon.

At the charge conference, the trial court accepted the prosecutor’s argument that the instruction was not authorized because certified copies of Stahl’s convictions had not been put in evidence. Such evidence had not been introduced at trial, Garland’s trial counsel explained at the new trial hearing, for the strategic purpose of preserving the right to conclude arguments. Moreover, the attorney recalled, the jury was apprised of Stahl’s several prior felony convictions, as well as the plea deal under which he was then testifying. In addition, the attorney testified, he had determined that the jury instructions that would be given would adequately explain witness impeachment to the jurors.

As Garland correctly argues, “testimony regarding prior convictions is sufficient, in the absence of an objection, to justify the giving of a charge on impeachment by conviction.” And because there was such testimony about Stahl’s prior felony convictions, the requested instruction was authorized.

An instruction on impeachment must be read in conjunction with the entire final charge. Here, the court fully charged the jurors on credibility, describing various factors that could be considered in assessing credibility, such as motives and pending negotiated plea deals, as well as the witness’s personal credibility insofar as it may have been shown in their presence and by the evidence. The court also charged on witness impeachment, instructing that a witness may be impeached by disproving the facts to which he had testified and by proof of contradictory statements.

Moreover, Stahl readily acknowledged on the stand that he was testifying as part of a negotiated plea deal that disposed of not only multiple charges in connection with his participation in the incident underlying this case, but also unrelated charges of aggravated assault. Additionally, Stahl admitted that he previously had been convicted of other charges of burglary, criminal damage to property, theft by taking, and possession of drugs by an inmate in jail. “Under such circumstances, the jury was already fully aware of the disreputable character of [Stahl] by virtue of [his] own testimony on the stand.” We cannot conclude that a reasonable probability exists that, but for trial counsel’s failure to object to the refusal to give a jury charge on impeachment by prior felony conviction, the result of the proceeding would have been any different.

2. Garland contests the sufficiency of the evidence, but in the first appearance of this case before this court, we held that the “evidence was sufficient to sustain [Garland’s] convictions.” Thereafter, because the Supreme Court remanded this case solely for the trial court to resolve the claim of effective assistance of trial counsel, this (second) challenge to the evidentiary sufficiency may not be considered in this proceeding.

3. Garland contends that the aggravated assault count should have been merged under OCGA § 16-1-6 into the attempted armed robbery count. In accordance with Mikell v. State, consideration of this contention is “required even though appellant failed to raise the claim in the trial court, or to challenge the sentence for aggravated assault on appeal” when the case was first before this court.

The indictment alleged that aggravated assault had been committed by “an assault upon [the homeowner], with a certain firearm, a deadly weapon.” Another count in the indictment alleged that Garland, with the intent to commit armed robbery, attempted to take marijuana from the homeowner “by use of an offensive weapon,” a gun, asserting further that Garland had performed acts constituting a substantial step toward commission of armed robbery: breaking into a residence, “pull[ing]” a firearm, and demanding drugs.

Decided July 14, 2011.

Jimmonique R. S. Rodgers, for appellant.

Joe W. Hendricks, Jr., District Attorney, for appellee.

In Drinkard v. Walker, the Supreme Court of Georgia adopted the “required evidence” test for determining when one offense is included in another under OCGA § 16-1-6 (l). “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

Applying this test, we find that the aggravated assault count should have been merged into the attempted armed robbery count. Although the attempted armed robbery statutory provision required proof of a substantial step of a taking, which was not a required showing under the applicable aggravated assault provision, the latter provision did not require proof of any fact that was not also required to prove the attempted armed robbery, as that offense could have been proved under the indictment in this case. “Those convictions and the sentences entered for them must be vacated and the case remanded to the trial court for resentencing.”

Judgment affirmed in part and vacated in part, and case remanded for resentencing.

Andrews and McFadden, JJ., concur.

         Garland, v. State, 283 Ga. App. 622 (642 SE2d 320) (2007).

       Id. at 626 (6).

        Garland v. State, 292 Ga. App. 332 (665 SE2d 369) (2008), quoting Garland v. State, 283 Ga. 201, 205 (657 SE2d 842) (2008). See generally Shadix v. Carroll County, 274 Ga. 560, 562-564 (1) (554 SE2d 465) (2001).

        Garland, supra, 283 Ga. at 205.

        Garland, supra, 292 Ga. App. at 332.

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Espinosa v. State, 285 Ga. App. 69, 72 (2) (645 SE2d 529) (2007) (footnotes omitted).

        Strickland, supra at 697 (IV).

       274 Ga. 63, 66-68 (3) (a) (548 SE2d 310) (2001).

       Id. at 67-68 (3) (a).

       See id. (rejecting contention that the pattern jury charge given by the trial court on knowledge erroneously charged in the conjunctive rather than the disjunctive was reversible error); see also Berry v. State, 267 Ga. 476, 480 (4) (e) (480 SE2d 32) (1997) (rejecting claim that counsel was ineffective for not objecting to court’s joint references to him and co-defendant, where court clearly instructed the jury about its duty to consider each charge in the indictment against each defendant separately and that the guilt of one defendant was not a finding of guilt as to the other).

       275 Ga. 746, 749 (2) (d) (571 SE2d 721) (2002); see also, e.g., Jones v. State, 268 Ga. 12, 15 (5) (483 SE2d 871) (1997).

       282 Ga. 412 (651 SE2d 55) (2007).

       Id. at 415 (2), n. 5 (citation omitted).

       See Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2005), § 1.31.90. See also Hargett v. State, 285 Ga. 82, 87-88 (4) (674 SE2d 261) (2009) (rejecting appellants’ assertion that the trial court violated OCGA § 17-8-57 merely by giving the jury the standard pattern jury instruction); Haney v. State, 261 Ga. App. 136, 141-142 (6) (581 SE2d 626) (2003) (instruction taken directly from the Council of Superior Court Judges, Suggested Pattern Jury Instructions, which instruction accurately stated the law, could not be construed as an impermissible judicial comment on the evidence in violation of OCGA § 17-8-57); see generally Sauerwein v. State, 280 Ga. 438, 440 (2) (629 SE2d 235) (2006) (warning trial courts to avoid making certain remarks in order to diligently avoid any appearance of partiality).

       See Patel, supra.

       See id.; Sims v. State, 266 Ga. 417, 419 (2) (467 SE2d 574) (1996) (finding no harmful error in claim that trial court impermissibly expressed an opinion concerning the evidence in violation of OCGA § 17-8-57, when, during course of a jury instruction on the law applicable to the uncorroborated testimony of an accomplice, the court referred to co-indictee, who had pled guilty, then testified against defendant, as an accomplice, where court followed with complete and correct instructions); Hargett, supra; Haney, supra; see also Morris v. State, 280 Ga. 184, 186 (2) (c) (625 SE2d 391) (2006) (rejecting argument that counsel performed deficiently for not objecting, when trial court referred to the other participants as “victims”; context of the reference showed that court did not impermissibly express an opinion concerning the evidence when it used the reference); Mullinax v. State, 255 Ga. 442, 445 (4) (339 SE2d 704) (1986) (irrespective of whether “slayer” connotes malice when considered in isolation, trial judge’s use of that word, when considered within context, did not constitute an opinion concerning the evidence so as to violate OCGA § 17-8-57).

       At the time of Garland’s trial in February 2005, the introduction of a certified copy of a witness’s impeaching conviction, where the defendant had introduced no other evidence, would have resulted in defense counsel losing the right to make the final closing argument, see former OCGA § 17-8-71, and it was considered a reasonable defense strategy to avoid introducing evidence to preserve that right. See Adams v. State, 283 Ga. 298, 301 (3) (d) (658 SE2d 627) (2008); Dewberry v. State, 271 Ga. 624, 625 (2) (523 SE2d 26) (1999) (recognizing that the right to opening and closing argument is a valuable right, and preserving same is a reasonable strategy).

        Carter v. State, 272 Ga. 31-32 (2) (526 SE2d 855) (2000) (footnote omitted) (where state did not object to testimony regarding witness’s conviction, such testimony regarding the conviction was properly in evidence, and the trial court erred in refusing to give requested instruction on impeachment by conviction).

        Berry, supra at 480 (4) (c).

        Hinely v. State, 275 Ga. 777, 781 (2) (c) (573 SE2d 66) (2002) (citation and punctuation omitted); Ross v. State, 231 Ga. App. 793, 798 (6) (499 SE2d 642) (1998).

       See Hinely, supra (finding no reasonable probability that, but for trial counsel’s failure to impeach a witness with certified copy of felony conviction, the result of the proceeding would have been different); Ross, supra (same).

        Garland, supra, 283 Ga. App. at 625 (3) (footnote omitted).

        Garland, supra, 283 Ga. at 201-205; Garland, supra, 292 Ga. App. at 332.

       See Hammond v. State, 264 Ga. 879, 887 (10) (452 SE2d 745) (1995) (where case was remanded to trial court solely to resolve issue of ineffective assistance of counsel, additional issues raised could not be considered in an appeal from the judgment on remand). See also Kennebrew v. State, 267 Ga. 400, 402 (2) (480 SE2d 1) (1996) (on direct appeal from judgment of conviction, holding that trial court erred in addressing merits of appellant’s motion for new trial on the issue of ineffective assistance of trial counsel without first appointing new counsel and thereupon striking that portion of the judgment and remanding for the trial court to consider allegation of ineffective assistance under representation of new counsel, but nevertheless proceeding to consider merits of appellant’s contentions raised in direct appeal from judgment of conviction).

       286 Ga. 722 (690 SE2d 858) (2010). But cf. Felix v. State, 271 Ga. 534, 539, n. 6 (523 SE2d 1) (1999) (disallowing use of brief to expand the enumeration of errors).

        Mikell, supra at 725 (3) (citations omitted).

        Garland, supra, 283 Ga. App. at 622.

       281 Ga. 211 (636 SE2d 530) (2006).

       Id. at 214.

       Id. at 215 (punctuation and footnote omitted).

       OCGA §§ 16-8-41 (a) (person commits armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon); 16-4-1 (person commits criminal attempt when, with the intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime).

       OCGA § 16-5-21 (a) (2) (person commits aggravated assault when he or she assaults with 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).

       See Long v. State, 287 Ga. 886, 889 (2) (700 SE2d 399) (2010) (“there is no element of aggravated assault with a deadly weapon that is not contained in armed robbery”; aggravated assault by striking victim with gun merged into armed robbery of victim); see also Lucky v. State, 286 Ga. 478, 481-482 (2) (689 SE2d 825) (2010).

       See Long, supra (footnote omitted).