author: Ray, Judge. McFadden, Judge,

text:
    A14A0602.
    CITY OF ATLANTA v. McCRARY et al. CITY OF ATLANTA v. MERSIER.
    A14A0691.
    (760 SE2d 696)
   Ray, Judge.

We granted interlocutory review to the City of Atlanta (the “City”) following the trial court’s denial of its motion for summary judgment in two tort actions related to a deadly collision that occurred after a high-speed police chase. The City asserted sovereign immunity. However, the trial court concluded that fact questions existed as to whether the City maintained a nuisance by, inter alia, failing to enforce its own high-speed pursuit policy. The City contends that the trial court erred in determining that a nuisance theory could apply in the context of police pursuit cases and in finding that there were fact questions as to the existence of a nuisance. Finding error, we reverse.

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. OCGA § 9-11-56 (c). If a movant who does not bear the burden of proof at trial notes the absence of evidence to support an essential element of the respondent’s case, the respondent must then identify evidence in the record giving rise to a triable issue. We review a trial court’s grant of summary judgment de novo, construing the evidence and reasonable inferences in favor of the nonmoving party.

(Footnote omitted.) City of Atlanta v. Shavers, 326 Ga. App. 95, 95 (756 SE2d 204) (2014).

The evidence shows that Nicholas Dimauro and his patrol partner, both officers with the Atlanta Police Department’s (“APD”) Auto Theft Task Force, were on patrol on the night of January 24, 2008, when they noticed a car with an improperly completed drive-out tag. Dimauro turned on his siren and lights, and followed the vehicle. Samuel Knight, the driver of the vehicle, did not stop but instead accelerated, and Dimauro gave chase.

Dimauro deposed that he soon determined that he did not have the legal basis under APD’s high-speed chase policy either to have initiated or to continue the pursuit, and he terminated the chase by turning off his lights and siren and decreasing his speed. He lost sight of Knight’s vehicle. Knight, by contrast, stated in an affidavit that he never lost sight of the police vehicle or its flashing lights. Dimauro deposed that he continued driving and that, about a mile after terminating pursuit, he came upon the site of a two-vehicle accident. He recognized the vehicle Knight had been driving. Knight had crashed head-on into a car driven by Eric McCrary. The collision killed McCrary and Knight’s passenger, Shericka Hill.

The APD policy governing high-speed pursuits that was in effect in 2008, APD Standard Operating Procedure 3050 (“SOP 3050”), provided that an officer could initiate a high-speed pursuit only if (1) the suspect in the fleeing vehicle possessed a deadly weapon; (2) the officer reasonably believed that the suspect posed an immediate threat of physical violence to the officer or others; or (3) there was probable cause to believe that the suspect had committed a crime involving actual or threatened physical harm. The APD conducted an internal investigation, but did not discipline Dimauro because it found that he had terminated the pursuit in compliance with the policy.

Lora Mersier, the administratrix of Hill’s estate, and Ernestine McCrary, the administratrix of Eric McCrary’s estate, sued the City and Dimauro in his official capacity. They alleged that Dimauro and the City were negligent; that Dimauro’s decision to initiate a high-speed chase under the circumstances violated APD’s high-speed pursuit policy; and that the City had maintained a nuisance that endangered the public by failing to enforce its pursuit policy and by failing to train and supervise its officers under the pursuit policy.

The City and Dimauro moved for summary judgment. The City acknowledged that it had waived sovereign immunity up to $700,000 based on Dimauro’s negligent use of a covered motor vehicle pursuant to OCGA § 36-92-2 (a) (3), but sought to limit its liability to $700,000. The trial court granted summary judgment to Dimauro, finding him immune. The trial court declined to limit the City’s liability to $700,000, concluding that a fact question existed as to whether the “continuous and regularly repetitious injurious act[s] required for a nuisance are present in this case and whether the City had knowledge of said condition[s].” The City appeals the denial of summary judgment in both cases, Case Nos. A14A0602 and A14A0691. The issues presented are identical; thus, the cases are consolidated for our review.

OCGA § 41-1-1 provides that “[a] nuisance is anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance.” For a municipality to be held liable for creating or maintaining a nuisance, “the defect or degree of misfeasance must exceed mere negligence (as distinguished from a single act)[.]” (Footnote omitted.) Hibbs v. City of Riverdale, 267 Ga. 337, 338 (478 SE2d 121) (1996). Further, “there must be the maintenance of a dangerous condition on a continuous or regular basis over a period of time in which no action or inadequate action is taken to correct the condition after knowledge thereof.” (Footnote omitted; emphasis in original.) Heller v. City of Atlanta, 290 Ga. App. 345, 350 (2) (659 SE2d 617) (2008), aff’d, Ga. Dept. of Transp. v. Heller, 285 Ga. 262, 268 (3) (674 SE2d 914) (2009) (outlining three elements of nuisance cause of action: degree of misfeasance exceeds mere negligence; act is of some duration and is continuous or regularly repetitious; municipality fails to act within reasonable time after knowledge of dangerous condition). Whether a nuisance exists is generally a fact question, but “under some factual situations it can be held as a matter of law that no nuisance exists.” City of Bowman v. Gunnells, 243 Ga. 809, 811 (2) (256 SE2d 782) (1979).

It is undisputed that in the wake of accidents resulting from high-speed chases, in 2002, the City established a pursuit policy aimed at increasing safety for police officers and citizens. The APD’s Planning and Research Accreditation Unit (“PRAU”) produces annual reports that analyze APD’s pursuit activity and identify trends. In November 2007, the year prior to the accident at issue in the instant case, PRAU completed its Pursuit Analysis Report for 2006 data. This report indicates that although the City requires that documentation be filed after a high-speed chase, less than half of such pursuits were documented as required. Further, the report notes that less than half of the documented pursuits were justified by one of the three grounds required by the SOP 3050.

Despite the incomplete documentation, the report determined that of the 35 pursuits documented during 2006, nine involved accidents and two resulted in an injury. The report found a significant decline in the number of accidents and in the number and severity of injuries reported between 2005 and 2006. Specifically, the 2006 report stated that compared to 2005, “there does appear to be a greater rate of compliance that indicates an increased understanding of the SOP.” The 2006 report further stated that there was a great reduction in accidents and injuries compared with the prior year, and indicated that if future analyses showed officers engaging in pursuits that did not comply with the SOP 3050, training would likely be required. The report also noted that the City’s pursuit form, APD Form 602, was being updated to better reflect the details of a pursuit. The report concluded by acknowledging a need for improvement, but finding that the APD’s “goal of reducing the risk presented by vehicle pursuits to officers and citizens is being realized.”

The City released its 2007 pursuit analysis report in April 2008, three months after the accident at issue. The report showed that police pursuit logs, which had been incomplete for 2006, were not available in 2007, although pursuit reporting was available from other units. The report found that of the 27 pursuits reported, 13 contained information regarding an accident and 10 involved injuries. The report determined that although the percentage of accidents rose in 2007, “pursuits as a whole have been reduced.” The report recommended improved reporting processes and training, including for the Auto Theft Task Force for which Dimauro worked. It also noted that multi-unit meetings and reviews recommended in the prior year’s report had been scheduled and that pursuit reporting forms were being updated as previously recommended. The report also found that

far fewer of the reported pursuits, on their face and as reported, violated the requirements set forth in APD.SOP. SOSO (4.1.2) than in any other year of analysis. Those pursuits that were engaged against policy were done so because of crimes that do not meet the requirements spelled out in the SOP. Compared to the analysis of 2005 and 2006 pursuits there appears to be a far greater rate of compliance. This indicates an increased understanding of the SOP. There was also a reduction in the rate of accidents and injuries, especially to uninvolved third parties.

(Emphasis supplied.) Further, the report determined that the APD’s “goal of combating crime while reducing the risk presented by vehicle pursuits to officers and citizens is being realized.” The PRAU report for the first quarter of 2008 noted four pursuits, including, apparently, the pursuit at issue here and the resulting fatalities. It also noted a “break-down” in the reporting process as only two of the four pursuits were appropriately reported, and PRAU learned of the other two from news reports. The report noted that Dimauro’s unit, the Auto Theft Task Force, had “a history of filing detailed and accurate reports for analysis” and also noted changes to the reporting process that were designed to ensure better filing and routing of completed reports. In September 2008 and May 2010, the APD amended the SOP 3050 in an attempt to address the pursuit reporting and routing problems that had been noted in prior reports, and to require better communication and pursuit data recording.

As noted above, McCrary and Mersier argued that the City maintained a nuisance by failing to enforce its pursuit policy and by failing to supervise and train officers to follow that policy in violation of OCGA § 36-33-1 (outlining when there may be a waiver of sovereign immunity for municipal corporations).

Even assuming, without deciding, that nuisance law could apply in this context, the trial court nonetheless erred in determining that a fact question existed.

To be liable for nuisance, a municipality must be charged with performing a continuous or regularly repetitious act or condition which causes injury, and it must have knowledge or be charged with notice of the dangerous condition or repetitive acts causing injury. A one-time occurrence does not amount to a nuisance.

(Citations omitted.) Banks v. Mayor & City of Savannah, 210 Ga. App. 62, 62 (1) (435 SE2d 68) (1993). Thus, in addition to notice of the repetitive or continuous dangerous condition and failure to rectify it in violation of a duty to act, the dangerous condition must “cause [ ] the hurt, inconvenience or injury[.]” (Citation and punctuation omitted.) Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 426-427 (3) (i) (249 SE2d 224) (1978).

In moving for summary judgment, the City pierced the pleadings of McCrary and Mersier by pointing to an absence of evidence linking the City’s alleged failure to enforce its pursuit policy and train its officers to unauthorized pursuits resulting in a continuing and repeated dangerous condition or injuries of which the City had notice. The burden then shifted to McCrary and Mersier to point to evidence in the record showing that link. See City of Atlanta v. Shavers, supra.

Contrary to the dissent’s claims, even viewing the evidence in the light most favorable to the non-moving parties, McCrary and Mersier still have failed to show any evidentiary link. McCrary and Mersier provided no evidence that any lack of training or enforcement resulted in unauthorized pursuits, nor did they show that dangerous conditions or injuries resulted from unauthorized pursuits or lack of training or enforcement. See generally Doe I v. Young Women’s Christian Assn. of Greater Atlanta, Inc., 321 Ga. App. 403, 408 (2) (740 SE2d 453) (2013) (must show causal link between alleged lack of training and injury). McCrary and Mersier have provided no evidence whatsoever linking any of the documented injuries or accidents to unauthorized pursuits, and the statistics they cite fail to show such a link. See Banks, supra at 62 (1) (finding that the mere existence of other collisions involving police cars, despite any danger inherent in officers’ pursuit of their duties, was insufficient to show the maintenance of a nuisance).

The dissent would have us create the required linkage by entering into multiple layers of inference in order to make the plaintiffs’ case. This we may not do. Here, once the City pierced their pleadings, McCrary and Mersier had to

introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.

(Footnote omitted; emphasis supplied.) Alexander v. Hulsey Environmental Svcs., Inc., 306 Ga. App. 459, 462 (3) (703 SE2d 435) (2010). See, e.g., McManus v. Taylor, 326 Ga. App. 477, 485 (4) (756 SE2d 709) (2014) (in negligent entrustment action, evidence of defendant’s prior use of borrowed vehicles with permission was insufficient to withstand summary judgment and to create inference that defendant had used vehicle with permission on day in question).

In essence, the dissent’s suggestion that we are permitted to infer multiple links where no evidence supports them means that the jury also may make such assumptions. It should go without saying that the burden of proof exists for a reason. See Miller v. Gerber Products Co., 207 Ga. 385, 388 (62 SE2d 174) (1950) (“[T]he jury cannot assume the ultimate fact merely from other facts which are based upon an inference rather than upon proof.”). It is well settled that “[a] shadowy semblance of an issue is not enough to defeat the motion for summary judgment.” (Punctuation and footnote omitted.) Martin v. Herrington Mill, LP, 316 Ga. App. 696, 700 (730 SE2d 164) (2012).

That said, we do not condone APD’s incomplete reporting of pursuit data. However, the PRAU reports and other evidence to which McCrary and Mersier cite do not show that the City had notice of any repeated or continuous dangerous act resulting in injuries and caused by the APD’s failure to enforce its pursuit policy or to train or supervise its officers in that policy. The PRAU reports do not state whether the accidents or injuries recorded resulted from pursuits that complied with SOP 3050 or from pursuits that did not comply with SOP 3050. Further, the reports show that the City had notice of a decrease in the overall number of pursuit-related accidents and injuries from 2005 to 2006, a decrease in the number of pursuits from 2006 to 2007, and a “far greater rate of compliance . . . [which] indicates an increased understanding of the SOP” as well as a reduction in the rate of accidents and injuries to “uninvolved third parties.” (Emphasis supplied.) Given these circumstances, we cannot say that the City was chargeable with notice of a dangerous condition within the meaning of a “nuisance”; that is, the repeated or continuous condition of failure to enforce, supervise, and train related to pursuit policy that caused injury.

In an analogous case, we determined that the City of Atlanta had no notice of a dangerous condition despite evidence that taxicab inspectors failed to measure tire tread depth where there was no evidence that taxicabs with insufficient tire tread routinely passed inspections and were later involved in collisions that caused injury. Heller, supra at 350 (2). See also Shuman v. Mayor & Aldermen of Savannah, 180 Ga. App. 427, 427 (349 SE2d 239) (1986) (no nuisance from obscured stop sign at intersection where 18 other collisions had occurred where city lacked records of complaints or accidents attributed to the obscured stop sign). Particularly given that the evidence shows that there were approximately 100,000 traffic stops in each of the years at issue in the PRAU reports documenting nine accidents and two injuries for 2006, and thirteen accidents and ten injuries for 2007, there is no evidence that any failure to train officers in the pursuit policy, or any failure to enforce the pursuit policy, potentially endangered everyone who was near those pursuits or that the City thus had notice or constructive knowledge of such a connection between a dangerous condition and failure to train officers in the pursuit policy or failure to enforce the pursuit policy.

Vehicle collisions are not uncommon occurrences, and the operation of police engaged in pursuit of their duties inherently involves some danger; to constitute a nuisance, such acts must constitute the continuous or regularly repetitious acts or conditions which could work damage to anyone who came in proximity to police cars in [Atlanta].

(Citation omitted; emphasis supplied.) Banks, supra at 62 (1). Further,

evidence that other collisions have occurred involving city police cars is not evidence of improper training of police officers, and does not create an inference that officers are improperly trained. Even the continuity and repetition necessary for a finding of nuisance does not prove nuisance as a matter of law, for nuisance is not shown by the occurrence of any number of collisions. Nuisance can be shown only by acts of [the City], that is, evidence of their specific failure or specific negligence in training which resulted in the collisions. [McCrary and Mersier have] not shown this.

(Emphasis supplied.) Id.

The trial court in the instant case erred in denying the City’s motion for summary judgment.

Judgment reversed.

Andrews, P. J., Barnes, P. J., Doyle, P. J., Boggs and Branch, JJ., concur. McFadden, J., dissents.

McFadden, Judge,

dissenting.

I respectfully dissent because I believe the plaintiffs have pointed to evidence from which a factfinder reasonably could infer the elements of nuisance. The plaintiffs’ case depends on two inferences, but both are reasonable — more reasonable than the contrary inferences that the majority would adopt. First, the plaintiffs would infer from the evidence of a high incidence of improper high-speed pursuits in violation of the City’s high-speed pursuit policy andfromthe evidence of the City’s failure to enforce or train on that policy that proper training and enforcement would have resulted in fewer improper high-speed pursuits. Second, the plaintiffs would infer from the evidence that high-speed pursuits often end in accidents ti a reduction in the number of improper high-speed pursuits would ^e resulted in fewer accidents.

“To be held liable for maintenance of a nuisance, [a] municip • • must be chargeable with performing a continuous or regularly iepetitious act, or creating a continuous or regularly repetitious condition, which causes ... hurt, inconvenience or injury.” City of Bowman v. Gunnells, 243 Ga. 809, 810 (1) (256 SE2d 782) (1979) (citation and punctuation omitted). The dangerous condition must be maintained “on a continuous or regular basis over a period of time in which no action or inadequate action is taken to correct the condition after knowledge thereof.” Id. (emphasis omitted). See generally Ga. Dept. of Transp. v. Heller, 285 Ga. 262, 268 (3) (674 SE2d 914) (2009) (discussing required elements for showing nuisance in case in which plaintiffs alleged that city allowed inspector to perform inadequate inspections of taxicabs).

At the summary judgment stage of the proceedings, we must “view the evidence in the record and make all reasonable inferences from it in the light most favorable to the non-moving party[.]” Mtg. Alliance Corp. v. Pickens County, 294 Ga. 212, 213 (1) (751 SE2d 51) (2013) (citations omitted). Viewed in this light, the evidence shows that the City was on notice that police officers engaged in a number of high-speed pursuits, that some of those pursuits resulted in accidents, and that many if not most of those pursuits were improper under the City’s pursuit policy and consequently should not have occurred. The evidence also shows that the City failed to act in any meaningful respect to train the officers as to when to engage in a high-speed pursuit under the policy or to enforce the policy’s requirements. And the evidence shows that the deaths in these cases occurred in an accident that resulted from an improper pursuit.

While the evidence does not directly link either the high incidence of improper pursuits to the City’s failure to train in or enforce the pursuit policy, or the accidents that occurred during high-speed pursuits to pursuits that were improper under the policy, the evidence supports these inferences. Viewed in favor of the plaintiffs, the evidence shows that high-speed police pursuits — whether proper or improper under the policy—are dangerous and have proven so in the City. A significant percentage of the high-speed pursuits in which the Atlanta Police Department engages end in accidents. Notwithstanding that known danger, the City has made a determination that, in certain cases, high-speed pursuits, on balance, are beneficial to public safety and therefore proper. That determination is entitled to the protection of sovereign immunity, and the City cannot be held liable on a theory of nuisance for accidents arising from high-speed pursuits that comply with the policy. See Banks v. Mayor &c. of Savannah, 210 Ga. App. 62 (1) (435 SE2d 68) (1993) (acknowledging that operation of police engaged in duties inherently involves some danger); see also Ga. Dept. of Transp., 285 Ga. at 268 (3) (claim of nuisance against municipality requires showing that municipality engaged in degree of misfeasance that exceeded mere negligence).

But the evidence, when so viewed, also shows that the City neither informed the officers of when they could engage in high-speed pursuits under the policy nor held their officers accountable for complying with the policy. It is reasonable to infer that these failures by the City resulted in additional, improper high-speed chases and that improper high-speed chases are no less dangerous than proper ones. It is therefore reasonable to infer that some of the accidents resulting from high-speed chases arose from improper high-speed chases, chases that, under the policy, should not have occurred. These inferences raise more than a mere possibility of the necessary causal link between the City’s training and enforcement of its policy and accidents in improper high-speed pursuits. To find otherwise would require us to construe the evidence in favor of the summary judgment movant; it would require us to infer that training on and enforcement of the high-speed pursuit policy would not have led to more compliance therewith, and to infer that accidents were materially less likely to occur in improper high-speed pursuits than in high-speed pursuits generally.

Nuisance cases cited by the majority do not compel a different conclusion. In Heller v. City of Atlanta, 290 Ga. App. 345, 350 (2) (659 SE2d 617) (2008), there was no evidence that the municipality knew of the dangerous condition — that a taxicab inspector was giving passing grades to vehicles with dangerous tires. Here, in contrast, there was evidence that the City knew that many if not most reported high-speed pursuits should not have occurred under the policy, and that many other high-speed pursuits were going unreported. In Banks v. Mayor &c. of Savannah, supra, 210 Ga. App. at 62 (1), the plaintiff presented no evidence that police officers had been improperly trained in the operation of their police cars. Here, in contrast, there was evidence of a complete lack of training in or enforcement of the policy governing high-speed pursuits. Finally, in Shuman v. Mayor &c. of Savannah, 180 Ga. App. 427, 428 (349 SE2d 239) (1986), we upheld summary judgment against a plaintiff who had not presented evidence that any of the accidents at an intersection could be attributed to the dangerous condition of an obstructed stop sign. Here, in contrast, the plaintiffs have pointed to some evidence from which it could be reasonably inferred that some accidents could be attributed to the dangerous condition of unnecessary and unwarranted high-speed pursuits.

Decided July 16, 2014 —

Reconsiderations denied July 31, 2014 —

Cathy Hampton, Laura S. Burton, Seth R. Eisenberg, for appellant.

Morriss & Shim, Bruce F. Morriss, Daniel Shim, for appellees (case no. A14A0602).

W. Bryant Green III, Sandra F. Lekan, for appellee (case no. A14A0691).

Because the plaintiffs have pointed to some evidence to support their nuisance claim, the trial court properly denied the City’s motion for summary judgment, and that ruling should be affirmed.


source: Caselaw Access Project

author: DOYLE, Presiding Judge. MILLER, Judge,

license: Public Domain

text:
    A14A0610.
    FREEMAN v. THE STATE.
    (760 SE2d 708)
   DOYLE, Presiding Judge.

Following a jury trial, Leonard Freeman was convicted of burglary and attempted malice murder. He now appeals from the denial of his motion for new trial, assigning as error (1) the admission of statements he made during a police interview, (2) the admission of hearsay testimony of an emergency medical worker who attended to the victim, (3) the denial of his motion for a mistrial due to lack of access to real-time court reporting, (4) the closure of the courtroom during sentencing, (5) failure to sentence him as a first offender, and (6) ineffective assistance of counsel. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that a police officer responded to a nighttime 911 call about a burglary in progress and encountered Freeman, whom the officer knew, walking near the victim’s address. Freeman, who lived across the street, denied any knowledge of the burglary, so the officer investigated the house for damage and, upon shining his flashlight in a bedroom window, saw Jan Nelson, Freeman’s mother-in-law, on the floor covered in blood. The officer radioed for emergency medical services (“EMS”), and a responding medical technician, Russell Fortenberry, spoke to Nelson about her injuries. Nelson told Fortenberry that she had awoken to go to the bathroom and found someone in her house who tried to smother her by putting a bag over her head, and she had somehow hit her head.

An investigator arrived at the scene and learned of a small hammer and axe handle found near a pool of blood in a bedroom of Nelson’s house. The investigator visited Freeman at his home, and Freeman told the investigator he had been asleep in his house at 3:00 a.m. when his phone rang, and upon seeing Nelson’s name on his caller identification, he went to go check on her. When later visited by an investigator at Nelson’s hospital room, Freeman later claimed that the axe handle belonged to him, but denied ownership of the hammer. During another subsequent conversation with police outside his home, Freeman told an investigator that earlier he had misled police about being asleep, and he had actually been outside his house drinking liquor.

Freeman later gave a recorded interview at the police department, and following that, he agreed to undergo a polygraph test by a Georgia Bureau of Investigation interviewer. Before beginning the polygraph examination, Freeman met for a pre-interview session, during which he was administered a Miranda waiver, which he signed. During the pre-interview, Freeman told the GBI interviewer that he put a bag over Nelson’s head and hit her twice with a hammer. He explained that he had only “roughed [her] up” for the purpose of scaring her so that she would not continue to live alone. As a result of those statements, the polygraph test was never administered, and the GBI agent immediately advised the police investigator of Freeman’s statements. Freeman, the GBI agent, and the police investigator went to a separate interview room where Freeman again told the investigator that he had placed a bag over Nelson’s head and hit her in the head with a hammer. After that interview, Freeman was formally arrested.

Freeman was charged with aggravated assault, burglary, and attempted malice murder. Following a trial, the jury found him guilty on all three counts, and the trial court sentenced him on the burglary and attempted murder charges, merging the aggravated assault charge into the attempted murder charge. Freeman moved for a new trial, which motion was denied, giving rise to this appeal.

1. Freeman contends that the trial court erred by admitting statements he made to the police investigator immediately after his confession during the GBI pre-interview for the polygraph test. Specifically, Freeman argues that he should have been given an additional Miranda warning for purposes of the statement he made to the police investigator. We disagree.

The trial court addressed Freeman’s challenge to the statement during a Jackson v. Denno hearing. “Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a defendant’s statement at a Jackson v. Denno hearing will be upheld on appeal.”5 The record from the hearing shows that Freeman was properly advised of his Miranda rights before the pre-interview, there was no significant time gap between the two interviews, and the second interview (during which the initial interviewer was present) was of a similarly non-coercive nature, even if conducted in a different interview room. Thus, “the lack of a Miranda warning after the break is of no consequence [because Freeman] was informed of and waived his Miranda rights before the first interview and the second interview was part of a continuous series of interviews.” “Thus, it cannot be said that the trial court erred in ruling that the [subsequent] statement was admissible.”

2. Freeman next argues that the trial court erred by admitting hearsay testimony from the EMS worker who treated Nelson at the scene and told the jury what she said about the attack. The record shows that the responding officer radioed for EMS immediately upon discovering “Nelson on the floor at the end of her bed[,]... covered in blood.” The challenged testimony came from the EMS worker who was dispatched to the scene. He described Nelson as having a laceration to the top of her head with some “obvious bleeding” that was under control by the time he arrived. As he evaluated Nelson, the EMS worker “spoke with the patient just to do my initial assessment ... like I would do with every patient to find out... how she got her injury and then... what happened during and so forth there with the injury[. S]he was alert at the time and was able to answer all of our questions.” Over Freeman’s objection, the EMS worker stated that when, as part of his treatment routine, he asked Nelson how she was injured, she responded that “she had gotten up to go to the bathroom and found someone in the house and they [sat on her,] had tried to smother her, and put a bag over her head, and she was unaware of exactly how she got the laceration to the top of the head.”

Freeman objected to the testimony on the grounds that it was hearsay and a violation of his constitutional right to confrontation under Crawford v. Washington. But the EMS worker

was responsible for emergency medical diagnosis and treatment, to which the cause of the injury was relevant. Statements made for purposes of medical diagnosis or treatment and describing the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment have long been admissible under [statutory hearsay exceptions] and continue to be admissible even after Crawford.... [Nelson’s] statement to the paramedic was made during his initial examination of her to ascertain the scope, diagnosis, and treatment of her injuries, and does not fall within any of the classes of testimonial statements described in Crawford.

Therefore, under the circumstances of Nelson’s statements to the EMS worker, we discern no error here.

3. Freeman next argues that the trial court erred by denying his motion for a mistrial made by his trial counsel upon learning that the State had access to real-time court reporting via an Internet feed on a laptop at counsel’s table. The feed displayed the text of the transcript as entered by the court reporter, and until 11:30 a.m. on the third day of the four-day trial, Freeman’s counsel was unaware that it had been available to the State and the court during trial.

Freeman’s counsel objected, and during a bench conference it was established that he was aware that the system existed, but had not requested it (nor was he aware that it was readily available in that case).* The State explained that it had referred to the system only once to make a list of quickly-recited connections on the polygraph apparatus that was not ultimately used in the case. No transcripts had been printed out for the State’s use at any time. The trial court informed Freeman’s counsel how to access the service over the local wireless network, and the trial continued, over Freeman’s request for a mistrial.

“The trial court exercises wide discretion in controlling and regulating the business of the court, and appellate courts should never interfere with the exercise of this discretion unless it is plainly apparent that wrong has resulted from the abuse.” It is apparent from the trial transcript that the service was available to Freeman’s trial counsel had he requested access to it, the State had not concealed its use of it, and the trial court was unaware that the State was using it and Freeman was not. Further, Freeman’s counsel was able to see and hear everything in the courtroom, he was immediately given access upon request, and he did not point to any specific harm that occurred or any particular use he would have made of the real time transcript up to that point. Under these circumstances, we discern no reversible error.

4. Freeman also asserts as error the trial court’s closure of the courtroom for one witness’s testimony during his sentencing hearing. At the hearing, Freeman’s counsel proffered that, as part of his mitigation defense, he would elicit testimony from police that Freeman would offer substantial cooperation with ongoing criminal investigations. The State did not want to impede open investigations by revealing information about those investigations, so the State requested that the trial court exclude the public during those witnesses’ testimony. Freeman’s counsel did not object because he believed it would benefit his client to facilitate the law enforcement testimony showing his client’s cooperation.

Freeman now asserts that the trial court erred by closing the courtroom, but because Freeman agreed to the closure, “the issue of closure may only be raised in the context of an ineffective assistance of counsel claim.” This is because “[a] defendant will not be allowed to induce an asserted error, sit silently hoping for acquittal, and obtain a new trial when that tactic fails. Induced error is impermissible and furnishes no ground for reversal.” “[T]o hold otherwise would encourage defense counsel to manipulate the justice system by intentionally failing to object [to closure] in order to ensure an automatic reversal on appeal.”

Despite this waiver, the dissent argues that the courtroom’s closure requires reversal, emphasizing the importance of a public trial. But this precise concern was addressed in State v. Abernathy, in which the Supreme Court of Georgia explained that (1) “the right to public trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial,” and (2) the defendant’s failure to object waived appellate consideration of the issue outside of a claim for ineffective assistance of counsel, which is not presented in this enumeration.

Nevertheless, in the present case, it is clear that the trial court held a hearing on the record in which it considered the least intrusive way to protect Freeman’s interests in presenting mitigation evidence without hindering the State’s ongoing criminal investigation. The trial court carefully considered alternatives to the temporary closure as well as ways to limit closure to only certain witnesses’ testimony. The court made explicit findings on the record and identified the overriding nature of Freeman’s due process interest and the State’s interest in protecting sensitive information involved in the criminal investigation. The parties proffered specific facts supporting the trial court’s findings and exercise of discretion. The closure was narrowly tailored to a single witness, and the courtroom was promptly reopened after the relevant evidence was presented; there is no indication that the full transcript of the sentencing was ever withheld from anyone seeking it. Under these circumstances, and in light of Freeman’s waiver, we discern no basis for reversal on the enumerated ground.

5. Freeman also challenges the trial court’s failure to sentence him as a first offender under OCGA § 42-8-60 et seq. “[Wjhether or not to sentence a defendant under the first offender statute lies entirely within the discretion of the trial court.” Absent some erroneous belief on the part of the trial court that the law does not permit first offender treatment, we presume the trial court “acted properly in imposing the sentence.”

Here, although Freeman did not request first offender treatment, it is apparent from the record that the trial court knew of Freeman’s lack of criminal convictions but nevertheless sentenced him to 30 years (to serve ten) and 20 years consecutive on probation. The trial court’s sentencing shows that it found the nature of the crime to be severe, and the court gave no indication that it felt constrained to ignore the potential for first-offender sentencing. Further, we note that Freeman was found guilty of attempting to commit malice murder, a serious violent felony that, if completed, is ineligible for first offender treatment. Pretermitting whether an unsuccessful murder should be treated differently than a successful one for first offender purposes, the conduct here was of a sufficiently serious nature that we discern no abuse of discretion on the part of the trial court for failing to sentence Freeman as a first offender.

6. Freeman argues that his trial counsel was ineffective in several ways. Under Strickland v. Washington, to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. “There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. In reviewing the trial court’s decision, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

(a) Failure to present closing argument at the Jackson-Denno hearing. Freeman points to his trial counsel’s decision, at the conclusion of the testimony adduced at the Jackson-Denno hearing, to rest on the evidence “in this specific situation,” and not present argument. The State elected to do the same. The transcript shows that Freeman’s trial counsel had vigorously cross-examined the State’s witness with probative and leading questions, revealing inconsistencies and challenging their answers. Trial counsel’s questioning laid a clear foundation to support his theory that Freeman’s statements were the product of improper interrogation, and he was not sufficiently Mirandized. Trial counsel’s approach is in line with the common and reasonable tactic to perfect the record and not use further court time to make an argument that has become obvious through counsel’s questioning. As such, in the absence of any showing that counsel’s tactic was unreasonable or inadvertent, waiving argument at the hearing in this case affords no basis for reversal. “Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.”

(b) Failure to object to certain statements. Freeman argues that his trial counsel should have objected on hearsay grounds to portions of a recorded police interview as well as testimony by an officer regarding Nelson’s account of the shirt color (either orange or yellow) of her assailant. With respect to the recorded interview, trial counsel had unsuccessfully attempted to exclude the interview during the Jackson v. Denno hearing. In light of that ruling, counsel elected to have the entire interview admitted rather than redact it, as part of a trial strategy to point out inconsistencies as to the assailant’s shirt color. Trial counsel further highlighted the inconsistencies in his closing argument. With respect to statements by the officer regarding shirt color, Freeman does not identify the particular objectionable testimony, but these statements would have been subject to the same trial strategy employed by trial counsel.

Furthermore, alleged discrepancies about the shirt color of the assailant were overwhelmed by the other evidence of guilt. After being given a Miranda warning, Freeman twice volunteered to investigators that he put a bag over Nelson’s head and hit her in the head with a hammer. Based on the record before us, we discern no reversible error predicated on the effectiveness of trial counsel with respect to the challenged testimony.

(c) Consenting to close the courtroom during sentencing. Freeman also argues that his trial counsel performed deficiently by consenting to closing the courtroom during sentencing. But, as noted in Division 4, this decision was a strategic one designed to allow mitigation evidence during sentencing. Prior to sentencing, trial counsel stated that he believed that law enforcement witnesses would be more forthcoming if the courtroom were closed. In light of this reasonable strategic decision, and in light of any showing of harm, Freeman has failed to meet his burden under Strickland.

(d) Failure to request first offender sentencing. Finally, Freeman argues that his trial counsel should have requested sentencing under the first offender statute. But the record shows no inclination by the trial court to allow first offender status in light of the nature of the offenses Freeman committed. Nor was there evidence that the trial court was constrained to impose the sentence Freeman received. To the contrary, the trial court noted Freeman’s lack of a criminal record and that it could have sentenced Freeman from one to thirty years for the attempted murder count. Nevertheless, after recounting on the record Freeman’s use of a hammer, Nelson’s fractured skull, staples “all up her head,” the pool of blood, and Nelson’s fear that she was going to be suffocated, the trial court imposed a sentence of 30 years with 10 to serve.

Pursuant to Strickland, Freeman must offer more than speculation that the trial court would have sentenced him as a first offender. In light of the record before us, Freeman has not met this burden.

Judgment affirmed.

Andrews, P. J., Dillard and McMillian, JJ., concur. Phipps, C. J., Ellington, P. J., and Miller, J., concur in part and dissent in part.

MILLER, Judge,

concurring in part and dissenting in part.

While I agree with Divisions 1, 2, 3, 5, and 6 of the majority opinion, I cannot agree with the majority opinion as to Division 4. The Constitution of the State of Georgia mandates that “[i]n criminal cases, the defendant shall have a public and speedy trial by an impartial jury[.]” (Emphasis supplied.) Ga. Const, of 1983, Art. I, Sec. I, Par. XI (a). The First and Sixth Amendments to the Constitution of the United States also guarantee the right to a public trial. U. S. Const. Amend. 1; U. S. Const. Amend. 6; Presley v. Georgia, 558 U. S. 209, 212 (130 SCt 721, 175 LE2d 675) (2010). Federal courts have held that the First and Sixth Amendment rights to a public trial attach to sentencing proceedings. See, e.g., United States v. Thompson, 713 F3d 388, 393-394 (II) (8th Cir. 2013); United States v. Rivera, 682 F3d 1223, 1228-1229 (II) (B) (1) (9th Cir. 2012).

That is what we have here. Freeman was tried and convicted by a jury in open court, and then the State moved to close the courtroom for a portion of the sentencing proceedings. Freeman agreed to the closure. While Freeman may have waived his Sixth Amendment right to a hearing in open court by acquiescing in the State’s request, a defendant cannot waive the public’s interest in being present for the sentencing portion of the trial. See Rivera, supra, 682 F3d at 1228 (II) (B) (1) (recognizing that the “judge and prosecutor continue to bear grave responsibilities, both to the accused and to the broader community, during sentencing proceedings”) (emphasis supplied).

Courtrooms in Georgia have too often been closed, and there are only rare circumstances in which a trial court may conduct proceedings outside the presence of the public. See Presley, supra, 558 U. S. at 213; Judicial Qualifications Commission, Opinion No. 239. While “[t]he right to an open trial may give way in certain cases to other rights and interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information[,] . . . [s]uch circumstances will be rare . . . and the balance of interests must be struck with special care.” (Citation omitted; emphasis supplied.) Presley, supra, 558 U. S. at 213. Before a trial court can exclude the public from any stage of a criminal trial,

[t]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

(Citation and punctuation omitted.) Id. at 214.

In this case, the State did not advance an overriding interest that compelled the courtroom to be closed. Notably, in requesting that the courtroom be closed, the State merely stated that it expected to present evidence regarding open Georgia Bureau of Investigation (GBI) cases and that this “evidence if presented in open court may prejudice those investigations.” (Emphasis supplied.) The State then called a GBI officer who testified that Freeman cooperated in certain investigations, but that his assistance did not yield any valuable information. The officer’s testimony did not disclose any sensitive information that could have possibly jeopardized any pending cases, and the State did not present any evidence that the pending cases required any additional investigation. There were other reasonable alternatives available, as the State could have established in open court that Freeman was cooperative but ultimately unhelpful.

Simply arguing that evidence may be related to a pending investigation does not satisfy the State’s burden of establishing an overriding interest. If we were to hold otherwise, a trial court would be authorized to close a courtroom based on conjecture. Trial judges are the keepers of the courtroom, entrusted with serious responsibilities to the parties and to the public at large. Maintaining public access serves to guarantee the fairness of trials because it provides an opportunity for public scrutiny upon the administration of justice. See Munoz v. American Lawyer Media, L.P., 236 Ga. App. 462, 464 (1) (a) (512 SE2d 347) (1999) (recognizing that the news media serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice in both civil and criminal cases).

Decided July 16, 2014 —

Reconsideration denied July 31, 2014 —

Monica P Baron, for appellant.

W. Jeffrey Langley, District Attorney, for appellee.

Closing courtrooms is the exception, not the rule, and, even where the parties request closure, the trial court must protect the public’s constitutional right to access and limit such access only when vitally necessary. See Presley, supra, 558 U. S. at 212-213; Judicial Qualifications Commission, Opinion No. 239. Where, as here, the trial court unnecessarily closes the courtroom, the public’s trust and confidence injudicial proceedings is eroded. For this reason, I dissent.

I am authorized to state that Chief Judge Phipps and Presiding Judge Ellington join in this dissent.

       OCGA § 16-7-1 (b).

       OCGA §§ 16-4-1; 16-5-1 (a).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

        Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

       378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

       (Punctuation omitted.) Boynton v. State, 277 Ga. 130, 131 (3) (587 SE2d 3) (2003).

       (Punctuation omitted.) Mangrum v. State, 285 Ga. 676, 678-679 (3) (681 SE2d 130) (2009) (addressing a two-hour break between interviews), citing Williams v. State, 244 Ga. 485, 488 (4) (b) (260 SE2d 879) (1979) (“no duty to repeat the Miranda warnings given the day before [because] the interviews were part of a continuing interrogation”); Watson v. State, 227 Ga. 698, 700 (1) (182 SE2d 446) (1971) (further warning not necessary after seven-hour lapse between statements).

        Boynton, 277 Ga. at 131 (3).

       541 U. S. 36 (124 SCt 1354, 158 LE2d 177) (2004).

        Hester v. State, 283 Ga. 367, 371-372 (4) (659 SE2d 600) (2008), quoting Thomas v. State, 288 Ga. App. 602, 608 (3) (654 SE2d 682) (2007) (no error in admitting hearsay statements “made to a nurse and doctor while they were examining the victim to ascertain the scope, diagnosis, and treatment of his injuries.”).

       Counsel’s prior experience with the real-time system involved a deaf client for whom special arrangements had been made.

        Williams v. State, 205 Ga. App. 445, 447 (3) (422 SE2d 309) (1992).

       See Christopher v. State, 262 Ga. App. 257, 264 (6) (585 SE2d 107) (2003) (harm as well as error must be shown).

       The trial court initially approved of courtroom closure for three witnesses, but during the hearing the closure was limited to only one witness.

        State v. Abernathy, 289 Ga. 603, 611 (5) (715 SE2d 48) (2011) (punctuation omitted) (quoting Reid v. State, 286 Ga. 484, 487 (3) (c) (690 SE2d 177) (2010)). Freeman relies on R. W. Page Corp. v. Lumpkin, 249 Ga. 576 (292 SE2d 815) (1982), for the proposition that motions to close the courtroom must be in writing and meet other procedural safeguards. But that case relied on Code Ann. § 24-3363 of the 1933 Code which is no longer in effect, and it addressed a trial court ruling on a request by news reporters to remain present in the courtroom during a suppression hearing. See id. at 580 (5). The reversal in R. W. Page Corp. was therefore limited to the trial court’s ruling on the reporters’ requests to be present, and it did not address the underlying criminal conviction of the defendant.

       (Punctuation omitted.) Anthony v. State, 275 Ga. App. 274, 278-279 (5) (620 SE2d 491) (2005).

        Reid, 286 Ga. at 488 (3) (c). See also Grant v. State, 295 Ga. 126, 128 (3) (757 SE2d 831) (2014) (“Appellant’s claim that the trial court erred by closing the courtroom to inquire whether the State had made a deal with a witness has not been preserved for appeal because no objection to the closure was made at trial.”); Benson v. State, 294 Ga. 618 (2) (754 SE2d 23) (2014) (Appellant’s family members were improperly excluded from voir dire but because “[ajppellant... did not object to the closure at trial], he was] procedurally barred from raising the issue on appeal.”).

       (Punctuation omitted.) 289 Ga. at 611 (5).

       See id. Freeman’s ineffective assistance claim is addressed in Division 6 (c).

       See, e.g., Presley v. Georgia, 558 U. S. 209, 214 (130 SCt 721, 175 LE2d 675) (2010).

       See id.

       See id.

       (Citation omitted.) Tew v. State, 320 Ga. App. 127 (739 SE2d 423) (2013).

       (Punctuation omitted.) Id. at 128.

       See OCGA §§ 42-8-60 (d) (1) (first offender statute); 17-10-6.1 (a) (1) (listing serious violent felonies); 16-5-1 (a) (defining malice murder).

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

       See id. at 687-688, 694 (III) (A)-(B).

       (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

       See Strickland, supra, 466 U. S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

       (Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

       (Punctuation omitted.) Welch v. State, 318 Ga. App. 202, 207 (2) (733 SE2d 482) (2012).

       See Rice v. State, 292 Ga. 191, 210-211 (9) (f) (733 SE2d 755) (2012) (holding that, even assuming that trial counsel performed deficiently by failing to make an objection, the defendant’s ineffective assistance claim failed because there was no prejudice due, in part, to the overwhelming evidence of his guilt). See also Boyd v. State, 286 Ga. 166, 168 (2) (686 SE2d 109) (2009) (overwhelming evidence can render harmless a Crawford violation arising from the admission of hearsay).

       See Muse v. State, 293 Ga. 647, 651 (2) (a) (748 SE2d 904) (2013) (Addressing a temporary courtroom closure during voir dire on jury members’ experience with sensitive sexual topics, “[w] e cannot say that it was unreasonable for the lawyer to think that closing the courtroom might facilitate his efforts to [obtain a favorable jury composition], and Appellant has failed, therefore, to overcome the strong presumption that the failure of her lawyer to object to the closing was a reasonable trial strategy.”); Abernathy, 289 Ga. at 611 (5) (“Given that the [closure] was designed with the express purpose of maximizing the odds of... a fair trial, [the defendant] cannot make” the required showing of harm.).

       See, e.g., Valentine v. State, 293 Ga. 533, 537 (3) (748 SE2d 437) (2013).

       See generally Humphrey v. Walker, 294 Ga. 855, 860 (II) (A) (757 SE2d 68) (2014) (“[T]o show prejudice, the errors of counsel must beso serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”) (punctuation omitted).

       Although the trial court initially ordered the courtroom to be closed for other witnesses as well, the record shows that the trial judge opened the courtroom after the GBI officer testified.


author: MCFADDEN, Judge.

text:
    A14A0700.
    MURPHY v. MURPHY.
    (759 SE2d 909)
   MCFADDEN, Judge.

Nancy Michelle Murphy appeals two orders entered in this custody modification action brought by her former husband, John Murphy. John Murphy has moved to dismiss the appeal. We find that we have jurisdiction to consider Nancy Michelle Murphy’s arguments regarding both orders, and we therefore deny John Murphy’s motion to dismiss the appeal. We hold, however, that Nancy Michelle Murphy’s challenges to the orders have no merit and find that she filed this appeal for purposes of delay. We therefore affirm and impose a frivolous appeal penalty.

Nancy Michelle Murphy and John Murphy were divorced in 2006. In 2012, John Murphy filed this action, seeking to modify the child custody provisions of the parties’ divorce decree. On August 23, 2013, the trial court entered an order that denied John Murphy’s motion to temporarily change physical custody of the children, holding that physical custody would “not be changed at this time,” and went on to ratify the status quo as to visitation and the parties’ ongoing practices as to out-of-state travel. The court held that, should the parties be unable to settle all issues in the case after a custody evaluation had been completed, then the court would conduct a final hearing on the issues of custody and parenting time before November 22, 2013. On September 10, 2013, the trial court entered an order denying Nancy Michelle Murphy’s motion to disqualify the guardian ad litem. On September 23, 2013, Nancy Michelle Murphy filed a notice of appeal, designating both the August 23, 2013 order and the September 10, 2013 order as the orders she was appealing.

1. Jurisdiction.

John Murphy has moved to dismiss this appeal for two reasons: (1) that the August 23, 2013 order concerning custody does not fall within OCGA § 5-6-34 (a) (11), which allows direct appeals of “[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody ...and (2) that the September 10, 2013 order concerning the guardian ad litem was entered subsequent to the August 23, 2013 order. We conclude that Nancy Michelle Murphy properly filed a direct appeal from the August 23, 2013 order and that she can challenge the September 10, 2013 order in this appeal.

(a) Custody.

The trial court entered the August 23 order after a hearing, which, the court stated, had been for the purpose of determining “whether circumstances exist which support a temporary change in the physical custody of [the children]” from Nancy Michelle Murphy to John Murphy. The trial court decided that, at least for the time being, “[t]he physical custody of the [c]hildren shall not be changed.” This amounts to a refusal to change custody. So, the order falls within the ambit of OCGA § 5-6-34 (a) (11), and Nancy Michelle Murphy properly filed a direct appeal from this order.

(b) Pendent jurisdiction.

We have pendent jurisdiction over Nancy Michelle Murphy’s appeal of the order denying the motion to disqualify the guardian ad litem because, although that order was entered after entry of the custody order, it was entered before Nancy Michelle Murphy filed her notice of appeal. Nancy Michelle Murphy could properly file a direct appeal of the custody order under OCGA § 5-6-34 (a) (11), and she could raise on appeal “all judgments, rulings, or orders rendered in the case ... which may affect the proceedings below.” OCGA § 5-6-34 (d). The September 10, 2013 guardian ad litem order is one such order. It is true, as John Murphy argues, that ample authority exists for the proposition that a party may not use OCGA § 5-6-34 (d) to challenge orders entered “not prior to or contemporaneous with that [directly appealable] judgment.” Norman v. Ault, 287 Ga. 324, 331 (6) (695 SE2d 633) (2010). But in all of those cases, the challenged order was entered not only subsequent to the entry of the directly appeal-able judgment, but also subsequent to the filing of the notice of appeal. See, e.g., Bloomfield v. Bloomfield, 282 Ga. 108, 112 (5) (646 SE2d 207) (2007); Cates v. Cates, 225 Ga. 612, 613 (3) (170 SE2d 416) (1969); Waters v. Chase Manhattan Bank, 308 Ga. App. 885, 887 (2) (709 SE2d 37) (2011); Costanzo v. Jones, 200 Ga. App. 806, 811 (3) (409 SE2d 686) (1991). See also Norman v. Ault, supra, 287 Ga. at 331 (6) (court would not consider enumeration challenging contempt order entered after entry of divorce decree and after filing of application for discretionary appeal of divorce decree).

Here, on the other hand, the guardian ad litem order was entered in the gap between the entry of the directly appealable custody order and the filing of the notice of appeal. We have found no authority, and John Murphy has cited none, in which it was held that the appellate court could not consider a challenge to an order entered in the period between the entry of the appealable judgment and the filing of the notice of appeal. Cf. Sewell v. Cancel, 295 Ga. 235 (759 SE2d 485) (2014) (appellee may raise in a cross-appeal any adverse rulings issued prior to the filing of a timely notice of cross-appeal, even if the rulings were issued after the ruling conferring appellate jurisdiction and after the filing of the notice of appeal). This unusual fact pattern distinguishes this case from the cases cited by John Murphy. Therefore we hold that we have jurisdiction to consider Nancy Michelle Murphy’s challenge to the September 10 order. We observe that to do so furthers the purpose of the Appellate Practice Act “to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein, except as may be specifically referred to in [the Act itself].” OCGA § 5-6-30.

2. The custody order.

Nancy Michelle Murphy argues that the trial court entered the August 23 order after engaging in ex parte communications with John Murphy’s attorney. She also argues that the trial court refused to allow her to present evidence or to complete cross-examination of John Murphy’s witness at the August 13, 2013 hearing that resulted in the order. The record belies both arguments.

(a) The order was not entered ex parte.

Nancy Michelle Murphy argues that the trial court entered the order ex parte because the order was prepared by counsel for John Murphy and delivered to the trial court, which entered the order the same day. Her argument is belied by the documents of record. The cover letter reflects that counsel for Nancy Michelle Murphy was e-mailed this communication and proposed order by John Murphy’s counsel, albeit on the same day the order was entered. Nancy Michelle Murphy has failed to support her accusation of improper ex parte communications with sworn testimony; she has not even elicited a finding of fact on this issue that would be subject to appellate review.

“Black’s Law Dictionary defines ‘ex parte’ in this context as ‘a judicial proceeding, order, injunction, etc.... taken or granted at the instance and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested.’ ” Cagle v. Davis, 236 Ga. App. 657, 661-661 (4) (a) (513 SE2d 16) (1999) (citation and emphasis omitted). The custody order was not granted at the instance of and “for the benefit of one party only.” The order matched the ruling announced at the August 13 hearing, where counsel for Nancy Michelle Murphy had the opportunity to object. And it denied John Murphy’s request for a temporary change of custody.

Moreover, “[ojrders prepared ex parte do not violate due process and should not be vacated unless a party can demonstrate that the process by which the judge arrived at them was fundamentally unfair.” Fuller v. Fuller, 279 Ga. 805, 806 (1) (621 SE2d 419) (2005) (citation and punctuation omitted). Nancy Michelle Murphy has shown no harm as the order matches the announced ruling. She has not demonstrated that the process by which the trial court arrived at its order was fundamentally unfair. Her argument that the custody order is invalid because it was entered ex parte is frivolous.

(b) The trial court did not commit reversible error by entering the order before Nancy Michelle Murphy had presented evidence.

Nancy Michelle Murphy argues that the trial court entered the order after denying her the right to present evidence in violation of Shore v. Shore, 253 Ga. 183 (318 SE2d 57) (1984). She correctly asserts that the trial court ended the hearing for the day — past 6:00 p.m. — and entered the order ten days later and that she had not presented evidence. But at the hearing, after attempting to determine a day when the hearing could resume, the trial court explained that “of course [John Murphy has] the burden on [his] case and [he] will have finished [his] case” but that the court “may decide at that point [he did not] need to hear anything else.” Counsel for Nancy Michelle Murphy responded, “All right.” The court further explained that after hearing from the guardian ad litem, he would “decide whether [he thought] we need to go any further or [he], at that point, [could] say something about, you know, what [he thought they] need to do.”

About an hour before concluding for the day, after an unrecorded, 45-minute conference with the lawyers (in which, according to John Murphy, the guardian ad litem participated), the trial court explained that he needed a custody evaluation by an expert custody evaluator. He explained that until he received the evaluation, he would maintain the status quo, but emphasized that John Murphy would get every visitation to which he was entitled, and as long as he returned the children on time to Nancy Michelle Murphy, he could take them out of state. In his appellate brief, John Murphy represents that at the unrecorded bench conference, counsel for the parties discussed the trial court’s proposed resolution of the hearing, and the trial court adopted a recommendation of counsel for Nancy Michelle Murphy.

The trial court’s written order denied John Murphy’s request for a temporary change in custody. It ordered the parties to “continue the parenting time with the [cjhildren as detailed in the [f]inal [djecree,” but specified that “[t]here shall be no requirement that a party be limited to exercising parenting time with the [c]hildren in the State of Georgia.” It added that “[t]o clarify the every-other-weekend schedule contained in the [fjinal [d]ecree, [John Murphy] shall exercise his parenting time with the [c]hildren beginning Friday, August 23, 2013,” the day the order was entered. The court ordered a full custody evaluation by a particular doctor and specified the conditions of that evaluation. Finally, the court ruled that should the parties be unable to settle all issues after the custody evaluation was completed, it would conduct a final hearing on or before November 22, 2013.

Nancy Michelle Murphy correctly argues that the trial court “must consider all facts and conditions which present themselves up to the time of rendering the judgment” in a change of custody proceeding. Shore, 253 Ga. at 184. But here, she has failed to show the preservation of error or harm. When the trial court stated that he might not “need to hear anything else” once John Murphy presented his case, given that it was John Murphy’s burden to prove his case, counsel for Nancy Michelle Murphy responded, “All right.” She has given us no indication of what occurred during the 45-minute, unrecorded conference, which apparently included a discussion about suspending the hearing until the completion of the custody evaluation. Nancy Michelle Murphy has not satisfied her burden of showing error by the record. Rohatensky v. Woodall, 257 Ga. App. 801, 801-802 (1) (572 SE2d 354) (2002).

As for harm, as she concedes in her appellate brief, the August 23 order simply maintained the status quo established by the terms of the divorce decree and denied John Murphy’s request to change custody on a temporary basis. Therefore, Nancy Michelle Murphy has not demonstrated that she was harmed by being denied the opportunity to present evidence.

To the extent that she argues that the order improperly modified visitation without her having the opportunity to present evidence by changing John Murphy’s visitation from August 16 to August 23, we find no harm. As the trial court explained in the order, he was simply “clarifying] the every-other-weekend schedule contained in the [f]inal [d] ecree.” To the extent Nancy Michelle Murphy argues that the order modified visitation by allowing John Murphy to exercise his visitation outside the state of Georgia, the court was simply formalizing the parties’ practice, given that John Murphy resides out of state. Indeed, at the hearing, Nancy Michelle Murphy, who was called for purposes of cross-examination, admitted that she, too, had taken the children out of the state of Georgia.

Even if Nancy Michelle Murphy was denied the opportunity to present evidence, she has failed to show any harm and thus has failed to show reversible error. See Alejandro v. Alejandro, 282 Ga. 453, 456 (7) (651 SE2d 62) (2007). See also In the Interest of S. P., 282 Ga. App. 82, 85 (3) (637 SE2d 802) (2006) (mother in deprivation proceeding was not entitled to reversal because she did not show any harm based on her absence from hearing, as she did not demonstrate what evidence she would have provided that would have changed the outcome of the hearing).

The trial court made it very clear that he was merely suspending the hearing for the day, directing that there be a forensic examination before the hearing resumed, and entering an interim order designed to preserve the status quo. That interim order was favorable to Nancy Michelle Murphy as to the central issue, change of custody. Nancy Michelle Murphy had an opportunity to object when the trial court announced his ruling, as well as in the unrecorded conference, and has waived this argument. Her appeal on this issue is frivolous.

3. The guardian ad litem order.

Nancy Michelle Murphy argues that the trial court erred by denying her motion to disqualify the guardian ad litem and by failing to conduct a hearing on the motion. We disagree.

A trial court’s decision not to disqualify a guardian ad litem is reviewed for an abuse of discretion. See Wrightson v. Wrightson, 266 Ga. 493, 497 (6) (467 SE2d 578) (1996).

Nancy Michelle Murphy’s argument is that the guardian ad litem unlawfully converted funds to her personal use. This accusation is also belied by the record. The guardian ad litem used funds from her retainer for travel to visit the children at John Murphy’s residence in Tennessee. Uniform Superior Court Rule (USCR) 24.9 (4) expressly authorizes the guardian ad litem “to examine any residence wherein any person seeking custody or visitation rights proposes to house the minor child.”

To the extent that Nancy Michelle Murphy argues that the guardian ad litem should have secured advance approval for the use of the funds, we find that the trial court acted well within the bounds of his discretion. Nancy Michelle Murphy relies on USCR 24.9 (8) (g), which states:

It shall be within the [cjourt’s discretion to determine the amount of fees awarded to the [guardian ad litem], and how payment of the fees shall be apportioned between the parties. The [guardian ad litem’s] requests for fees shall be considered, upon application properly served upon the parties and after an opportunity to be heard, unless waived. In the event the [guardian ad litem] determines that extensive travel outside of the circuit in which the [guardian ad litem] is appointed or other extraordinary expenditures are necessary, the [guardian ad litem] may petition the [c]ourt in advance for payment of such expenses by the parties.

Assuming that the guardian ad litem violated the rule by failing to secure advance permission before drawing down on her retainer for reimbursement for travel—travel that was entirely appropriate, and indeed necessary — there is nothing to support Nancy Michelle Murphy’s contention that the trial court abused his discretion by rejecting her argument that, as a consequence, the guardian ad litem’s removal was necessary. Nancy Michelle Murphy simply and frivolously mischaracterizes the guardian ad litem’s actions as lawbreaking and her conduct as the illegal, unlawful conversion of money she held in trust.

Contrary to Nancy Michelle Murphy’s contention on appeal, a hearing was not required. USCR 6.3 provides: “Unless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict.” Nancy Michelle Murphy has pointed to no authority that—and indeed, does not even explain why—the trial court erred by denying her motion to disqualify the guardian ad litem without first conducting a hearing. See Odom v. Hughes, 293 Ga. 447, 450 (1) (748 SE2d 839) (2013); USCR 6.3.

Nancy Michelle Murphy’s arguments regarding the trial court’s denial of her motion to disqualify the guardian ad litem are frivolous.

4. Frivolous appeal penalty.

We may impose a penalty under Court of Appeals Rule 15 in cases where the appellant could have no reasonable basis upon which to anticipate that this court would reverse the trial court’s judgment. Hardwick v. Williams, 272 Ga. App. 680, 683 (3) (613 SE2d 215) (2005). As detailed above, Nancy Michelle Murphy’s arguments are not merely meritless but frivolous. Nancy Michelle Murphy could not have reasonably anticipated reversal by this court on any ground alleged. We conclude that Nancy Michelle Murphy has appealed purely for the purpose of delaying resolution of John Murphy’s custody modification petition — an act that is antithetical to the children’s best interests. See Freese II, Inc. v. Mitchell, 318 Ga. App. 662, 668 (7) (734 SE2d 491) (2012).

Decided July 9, 2014 —

Reconsideration denied July 31, 2014 —

Millard Farmer, Larry King, for appellant.

Glover & Davis, Taylor B. Drake, Michael W. Warner, Kilpatrick, Townsend & Stockton, Stephen E. Hudson, William R. Poplin, Jr., for appellee.

The frivolousness and dilatoriness of Nancy Michelle Murphy’s appeal are aggravated by her repeated violations of Court of Appeals Rule 10. That rule provides: “Personal remarks, whether oral or written, which are discourteous or disparaging to any judge, opposing counsel, or any court, are strictly forbidden.” Nancy Michelle Murphy’s appellate brief contains numerous direct violations of Rule 10, as well as numerous discourteous or disparaging remarks about other persons involved in the case, particularly John Murphy’s wife. Notwithstanding Rule 10, we recognize that cases arise where counsel must show that the issue is not merely error but misconduct. In such cases counsel should take particular care to summarize and cite the record accurately and to use a tone that is respectful and appropriate to the seriousness of the issues. Such care and respect are wholly absent from Nancy Michelle Murphy’s brief.

Accordingly, under Court of Appeals Rule 15, each of Nancy Michelle Murphy’s counsel shall pay a penalty of $1,250, a total of $2,500. This penalty shall constitute a money judgment in favor of John Murphy against each of Nancy Michelle Murphy’s counsel, and the trial court is directed to enter judgment in such amount upon return of the remittitur in this case. Court of Appeals Rule 15 (c); Wieland v. Wieland, 216 Ga. App. 417, 418 (3) (454 SE2d 613) (1995).

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.

       Nancy Michelle Murphy moved to disqualify the members of this panel from participation in this appeal. Her motion was referred to another panel for resolution, and that panel denied her motion.