author: Phipps, Chief Judge.

text:
    A13A1671.
    ESHLEMAN v. KEY et al.
    (755 SE2d 926)
   Phipps, Chief Judge.

While playing in his neighbor’s yard, 11-year-old Chandler Key was bitten by a police canine that had escaped a kennel placed in the back of a parked pickup truck. The canine was owned by the DeKalb County Police Department (the department) and assigned to Lynn Eshleman, a department police officer and canine handler who was another of Key’s neighbors. Key’s father (individually and on Key’s behalf) initiated this negligence action against Eshleman, alleging that she was liable because she had failed to properly restrain the canine. In her answer, Eshleman asserted that she was entitled to official immunity because in caring for the canine, she had been performing her duties as a department police officer. Eshleman admitted that she had not securely closed the door of the kennel and that the canine got out of her truck; she did not deny that the canine bit Key. Eshleman moved for summary judgment, asserting that Key could not recover because she was entitled to official immunity and Key had equal knowledge of the canine’s propensities. Eshleman appeals from the trial court’s denial of her summary judgment motion. We affirm.

1. “This [c]ourt has a duty to inquire into its jurisdiction to entertain each appeal.” “[T]he Georgia Code limits our jurisdiction to consider direct appeals to specific categories of judgments set forth in subsections (1) through (12) of OCGA § 5-6-34 (a). All other judgments of a trial court are considered interlocutory and are therefore subject to the interlocutory appeal procedure set forth in OCGA § 5-6-34 (b).”

Although the order appealed from is interlocutory, we have jurisdiction under the collateral order doctrine. . . . [O]fficial immunity is an entitlement not to stand trial rather than a mere defense to liability. And this [c]ourt has held that an order denying such an immunity claim is appealable under the collateral order doctrine because the order conclusively determines the disputed question, resolves an important issue completely separate from the merits of the action, and is effectively unreviewable on appeal from a final judgment.

2. Eshleman contends that the trial court erred by denying her motion for summary judgment because her actions at the time of the incident were discretionary and were within the scope of her official authority as a canine handler with the department. Because Eshleman has not shown that the relevant actions were discretionary, she is not entitled to summary judgment on the basis of official immunity.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.

[O]n appeal from the denial or grant of summary judgment [,] the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

Viewed in the light most favorable to Key, the record shows the following. Eshleman was a police officer and canine handler with the department. The department owned “Andor,” a suspect-apprehension canine, and assigned Andor to Eshleman after Eshleman completed canine handler school. Pursuant to department policy, canine handlers were responsible for the care and maintenance of canines assigned to them.

Eshleman began taking Andor home with her and keeping him there. After noticing that the children who lived next door to her were looking over the fence that separated their yards, Eshleman spoke with them and their parents, cautioning them not to look over the fence because the act antagonized Andor. Eshleman also warned them that if they “ever... see him out, he happens to escape the fence or something, to just stand still.” When asked on deposition what it was about the children’s actions that could put them in danger, Eshleman replied, “Well, when you run, you become a prey object to a dog.”

On November 6, 2011, Eshleman was off-duty, preparing to take Andor with her to visit a friend. Eshleman was loading her personal vehicle, a pickup truck which was parked in her driveway; the truck was equipped with a camper cover that had a door that folded down over the tailgate. Eshleman brought Andor out of her house and commanded him to jump into the back of the truck. Andor complied, then entered the kennel in the back of the truck. Eshleman swung the kennel door shut, and “assumed” it was closed. While the truck’s tailgate was down and the camper cover was open, Eshleman stepped away from the truck to retrieve a water bottle from another vehicle. Andor jumped out of the truck and ran toward Key, who was playing football in Eshleman’s next-door neighbor’s yard. As Key tried to run away, Andor chased him, latched onto his arm, and “took [him] to the ground.” Key sustained a bite wound to his arm.

[C]ounty law enforcement officers such as [Eshleman] are entitled to official or qualified immunity for the negligent performance of discretionary acts within the scope of their authority, but they may be personally liable if they negligently perform a ministerial act or act with actual malice or an intent to injure when performing a discretionary act.
The difference between ministerial and discretionary acts has been explained as follows: A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.

To support her contention that the actions complained of were discretionary and taken within the scope of her official authority as a police officer and canine handler, Eshleman pointed to evidence that, as a department canine handler, she was responsible for Andor’s care and maintenance even when she was off-duty; that there were no department policies or procedures for securing and transporting police canines in private vehicles; and that she had not received such training regarding private vehicles.

We agree with Eshleman that her actions at the time of the incident, in caring for and maintaining the police canine assigned to her, were taken within the scope of her official authority. Notwithstanding, she has not shown that the act from which the alleged liability arose — proper restraint of the canine by securely closing the kennel door — was discretionary.

“The rationale for [official] immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.” Eshleman did not show that the act at issue in this case, restraining the canine by securely closing the kennel door, “call[ed] for the exercise of personal deliberation and judgment, which in turn entail[ed] examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.”

Moreover, there was evidence that Eshleman’s duty to properly restrain the canine was ministerial, to wit, “one that [was] simple, absolute, and definite, arising under conditions admitted or proved to exist, and requir[ed] merely the execution of a specific duty.” “A ministerial duty may be established by ... a statute.”

In his complaint, Key alleged that Eshleman violated OCGA § 51-2-7 by failing to properly restrain “a vicious animal.” Because Andor was a police canine, specially trained to apprehend suspects, there was some evidence that “the animal had a propensity to do the act which caused the injury and that the defendant knew of it.” Where the relevant facts pertaining to official immunity are in dispute, resolution of the factual issues is for the jury.

Decided March 28, 2014

Reconsideration denied April 9, 2014

Hall Booth Smith, James H. Fisher II, Denise W. Spitalnick, Christopher J. Watkins, Duane D. Pritchett, Kendric E. Smith, for appellant.

Andrew W. Jones, M. Chase Swanson, for appellees.

“[Eshleman] bore the burden on summary judgment of demonstrating that [she] was entitled to official immunity by showing that the specific acts [she] performed were discretionary.” Inasmuch as she has not met that burden, the trial court did not err by denying her motion for summary judgment.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

        Hammonds v. Parks, 319 Ga. App. 792, 793 (2) (735 SE2d 801) (2012) (citation omitted).

        Settendown Public Utility v. Waterscape Utility, 324 Ga. App. 652, 653 (751 SE2d 463) (2013).

        Taylor v. Campbell, 320 Ga. App. 362, 363, n. 3 (739 SE2d 801) (2013) (citations and punctuation omitted); Bd. of Regents of the University System of Ga. v. Canas, 295 Ga. App. 505, 507 (1) (672 SE2d 471) (2009); see Cameron v. Lang, 274 Ga. 122, 124 (549 SE2d 341) (2001) (issue of immunity, also known as qualified immunity; should be addressed asa threshold issue, as “qualified immunity is an entitlement not to stand trial rather than a mere defense to liability.”).

       OCGA § 9-11-56 (c).

        Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006) (citations omitted); Taylor, supra.

        Roper v. Greenway, 294 Ga. 112, 113 (751 SE2d 351) (2013) (citation and punctuation omitted); Phillips v. Hanse, 281 Ga. 133 (1) (637 SE2d 11) (2006).

        Taylor, supra at 363-364 (footnote omitted); Daley v. Clark, 282 Ga. App. 235, 237 (2) (638 SE2d 376) (2006); see Reed v. DeKalb County, 264 Ga. App. 83, 86-87 (589 SE2d 584) (2003).

       The department’s employee handbook provided: “As with any other special purpose vehicles, equipment, etc.[J the handlers who are authorized to control the canines will also be responsible for their care and maintenance of those canines assigned to them.”

       See generally Taylor, supra.

       See Howell v. Willis, 317 Ga. App. 199, 201 (729 SE2d 643) (2012).

        Taylor, supra at 363 (footnote omitted).

        Common Cause/Ga. v. City of Atlanta, 279 Ga. 480, 482 (2) (614 SE2d 761) (2005) (citation omitted).

       Id.

        Roper, supra at 114-115 (citations omitted).

       OCGA § 51-2-7 pertinently provides that a person who “keeps a vicious or dangerous animal... and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured.”

       Key also alleged that Eshleman violated Walton County Code §§ 10-3 through 10-5 by failing to properly restrain Andor. Key included purported photocopies of the cited authority in the record. But because the record does not contain original or properly certified copies of the county codes upon which Key relies, we cannot consider them. See Thorsen v. Saber, 288 Ga. 18, 19 (1) (701 SE2d 133) (2010).

        Pearce v. Shanks, 153 Ga. App. 693 (1) (266 SE2d 353) (1980) (citation and punctuation omitted).

        Glass v. Gates, 311 Ga. App. 563, 575 (2) (716 SE2d 611) (2011).

        Howell, supra (citation omitted).


source: Caselaw Access Project

license: Public Domain

text:
    A13A1680.
    SORRELLS v. THE STATE.
    (755 SE2d 586)
   Phipps, Chief Judge.

As part of an ongoing narcotics investigation, police detectives working undercover with the aid of a confidential informant purchased cocaine from a man whom the detectives later identified as Eurieso Sorrells. Thereafter convicted for the sale of cocaine, Sorrells was given a 40-year recidivist sentence, and his motion for new trial was denied. In this appeal, Sorrells contends that the trial court erred by admitting evidence of one of the detectives’ pretrial and in-court identifications of him and by rejecting his claim of ineffective assistance of trial counsel. Sorrells has demonstrated no merit in his challenge to the identification evidence, and thus no basis to disturb his judgment of conviction. For reasons that follow, we vacate the denial of Sorrells’s motion for new trial and remand the case for proceedings not inconsistent with this opinion.

Evidence at the jury trial showed the following. On November 4, 2009, two police detectives and a confidential informant set out in the confidential informant’s vehicle to make undercover street-side buys of narcotics. Their only such buy on that date — a twenty-dollar purchase of cocaine —- occurred within a city’s residential community at about 9:00 p.m. The state called the detectives, but not the confidential informant, to testify about what transpired at the scene.

Detective Chris Stapleton, who had been seated in the front passenger seat of the vehicle, recounted:

As we approached the [man] he approached our car from my side. He reached in the car to retrieve the money. The confidential informant was actually driving. I had already handed him the money. And the confidential informant passed the money to the [man]. The [man] passed a small plastic wrap with — a cornerbag, the corner of a plastic bag of powder cocaine to him. I asked the [man], you know, for a phone number or something, how could I get in touch with him if I wanted to buy some more. He just said his name was Black and he’s always in that area. We drove off and I passed the, at that time, suspected^] cocaine [to the detective seated in the back seat].

The man was not arrested that night, for reasons relating to the safety of the detectives and the confidential informant. Regarding the latter, the detectives sought to preserve the confidentiality of the informant’s identity so as to protect him against possible retaliation. Additionally, the police sought to shield the informant’s identity so as not to diminish the informant’s usefulness in ongoing and future investigations.

Stapleton testified that he had gotten “a very good, clear view” of the man, recounting that the area was illuminated by motor vehicle headlights, street lights, and porch lights and that the interior of the vehicle was illuminated further by dashboard lights. Stapleton testified that, by that point in the evening, his eyes had adjusted to the lighting conditions. Stapleton further described that “the transaction took place right in front of me,” recalling that “the man [had] actually reached into the car to [the] point his elbow passed the windowsill,” and estimating that the man’s face was then about a foot and a half from his own. Stapleton had spoken with the man and made eye contact with him. As the detective reiterated, “[W]hat we’re trying to do was identify people who were doing this type thing. So I had to see who I was looking at.”

Stapleton testified that, during the transaction, he recognized the man as a member of the community, but did not at the time know the man’s name. Stapleton testified further that, after the detectives ended their street investigation and returned to the police station around midnight to 1:00 a.m., “[the backup detective] pulled up a picture of Mr. Sorrells and I looked at it and said, ‘Yes, that’s the individual I just purchased cocaine from.’ ”

The backup detective, who had been seated in the back of the confidential informant’s vehicle, gave a similar account of that night. He testified that his eyes had adjusted to the lighting conditions and that, while he had recognized the man’s face, he could not then recall the man’s name. Prior to that evening, the backup detective had seen that man in the area approximately 100 times. The backup detective recounted that he had been involved in approximately 300 drug investigations, during 200 of which he had acted in an undercover capacity. And during one eleven-month period, he had lived undercover in the area — buying drugs so as to gather intelligence concerning street-level drug dealers. The backup detective elaborated, “When I was undercover, I knew a lot of the street names of suspects.”

The backup detective testified that when Stapleton asked the man for contact information and the man responded that he was known in the area as “Black,” “it clicked on me who his name was.” The backup detective added, “I showed Detective Stapleton a picture of the suspect because, like I said, once he told me the street name I knew — I knew who it was.” On cross-examination, defense counsel asked the backup detective, “[W]hen you say you immediately identified Black as Eurieso Sorrells, is it fair to say then that his one and only street name is Black?” The backup detective answered, ‘Tes, sir. That’s the only thing I’ve known him by is Black.”

A warrant for Sorrells’s arrest was executed on January 28, 2010. And at Sorrells’s trial held in June 2010, both detectives pointed to Sorrells as the man who had sold the cocaine.

Sorrells did not testify, but called two witnesses to support his defense of misidentification. Sorrells’s first witness was his mother, who testified that Sorrells was inside her house from 5:30 p.m. on the night in question until about 10:00 the following morning. When asked about Sorrells’s use of any aliases, she answered that Sorrells’s nickname was “Boot,” which she had given him at birth, and that she had never known Sorrells to use the name “Black.”

Sorrells’s second witness was an individual who had worked in the booking area at the local jail. That witness described how an arrested suspect’s information was gathered and entered into the jail’s computer system. Through that witness, Sorrells’s attorney introduced numerous documents authenticated as the computer-generated arrest and booking reports for Sorrells. That witness explained that the documents provided spaces for an alias and testified that “Boot” was the only alias recorded on any of the documents.

1. Sorrells contends that the trial court erred by denying his motion in limine to exclude Stapleton’s pretrial and trial identifications of him. He argues that the identification procedure — wherein the backup detective showed Stapleton a single photograph of him — was overly suggestive and created a substantial likelihood of misidentification.

“Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification” Accordingly, even if a pretrial identification procedure is impermissibly suggestive, “the evidence is inadmissible only if under the totality of the circumstances, there was a substantial likelihood of irreparable misidentification.” Factors to be considered include:

(1) a witnesses] opportunity to view the accused at the time of the crime; (2) the witnesses] degree of attention; (3) the accuracy of the witnesses] prior description of accused; (4) the witnesses] level of certainty at the confrontation; and (5) the length of time between the crime and the confrontation.

Moreover, “[e]ven if a pretrial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin.” On review of a trial court’s ruling on a motion to exclude an identification, “evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous.”

Sorrells points out that the drug transaction occurred at night and that the street-side encounter was brief. He asserts that, because the detectives had attempted to make other drug buys that night, Stapleton “could have confused the identification,” pointing out that Stapleton admittedly did not take any notes or otherwise record any physical description of the seller of the cocaine. Sorrells points out further that, prior to being shown the single photograph, Stapleton had given the backup detective no description of the seller.

Notwithstanding, we find no abuse of discretion in permitting evidence of the contested identifications. At the hearing on Sorrells’s motion in limine, the state called Stapleton to testify. He recalled that the twenty-dollar purchase of cocaine had been their only street-side drug transaction on that date. He described that, while the transaction had occurred at night, the area was illuminated by street lights and vehicle headlights and that he had been riding in the car for sufficient time such that his eyes had adjusted to the lighting conditions. The exchange had taken “[t]hirty seconds to a minute,” during which time the seller had leaned down and toward his opened window, then reached across him which had brought the seller’s face to within “[a] matter of inches” of his own. Stapleton testified that “it was not the kind of situation where you would avert your face,” explaining that the whole purpose for the encounter was “to identify local street-level dealers, to go out and attempt to purchase ... drugs from street-level dealers.” Further, Stapleton had verbally engaged the seller. Prior to that night, the detective had completed several classes in which he was taught various techniques of identifying, recognizing, and distinguishing features of individuals. The detective testified that he had recognized the man from that community, although he had not known the man’s name during the transaction. When the backup detective later showed him the photograph, Staple-ton testified, he immediately recognized the individual depicted as the man who had sold the cocaine “based on the fact that I had looked him in the face a few inches apart just, you know, a short while before.”

In light of that testimony, even assuming that presenting Staple-ton with the single photograph of Sorrells was an impermissibly suggestive identification procedure, the trial court was authorized to conclude that, under the totality of the circumstances, there was no substantial likelihood of irreparable misidentification. Therefore, we find no abuse of discretion by the trial court’s decision to allow the jury to be presented evidence of Stapleton’s identifications.

2. Sorrells contends that the trial court erred by rejecting his claim of ineffective assistance of trial counsel, claiming that his trial lawyer erred in two respects. First, Sorrells complains that the introduction of the booking records placed prejudicial bad character evidence before the jury. Second, Sorrells complains that his trial lawyer did not move to reveal the identity of the confidential informant, asserting that the “informant was the only witness present [at the scene], besides the testifying [detectives], who could have supported his defense of misidentification.”

Pursuant to Strickland v. Washington:

To prevail on a claim of ineffective assistance, [the defendant] must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. To prove that the performance of his lawyer was deficient, [the defendant] must show that the lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. And to prove that he was prejudiced by the performance of his lawyer, [the defendant] must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Areasonable probability is a probability sufficient to undermine confidence in the outcome.

“On appeal, this [c]ourt accepts the trial court’s findings of fact, unless they are clearly erroneous. However, the trial court’s legal conclusions are reviewed de novo.”

(a) We turn first to Sorrells’s complaint that, by introducing the booking reports, his trial lawyer injected prejudicial evidence of bad character.

At the evidentiary hearing on Sorrells’s motion for new trial, Sorrells’s trial lawyer was the sole witness. The lawyer recounted that Sorrells had told him during trial preparation that he (Sorrells) had used “Boot,” but never “Black,” as an alias. Hence, the lawyer decided to support the misidentification defense by introducing booking reports to show that Sorrells had used only “Boot” as an alias. Hedging against anticipated closing argument by the state that Sorrells had used “Boot” only sporadically, the trial lawyer obtained and thus introduced in evidence the 20 booking reports at issue, which spanned the period February 1997 through July 30, 2009. And as noted above, the only alias listed on any such document was “Boot.”

On appeal, Sorrells maintains that his trial lawyer performed deficiently by introducing 20 such reports without redacting the respective charges. As a result, Sorrells points out in particular, the jury was presented evidence that he had been arrested for both possession and sale of cocaine, which he argues undermined his claim that he had not been involved in the cocaine sale underlying this case. Sorrells also points out that the documents revealed his arrest for giving a false name, which he argues undermined his claim that his only alias had been “Boot.” Further, Sorrells claims that while the remaining documents introduced by his trial lawyer did not list charges that directly undercut his defense, they nonetheless also constituted prejudicial and otherwise inadmissible bad character evidence. Those charges included: aggravated stalking, aggravated assault, felony obstruction of an officer, multiple battery charges, false imprisonment, criminal damage to property, criminal trespass, interference with a 911 call, and multiple parole violations. Moreover, during closing argument, the prosecutor directed the jurors’ attention to the underlying charges: “You’re going to see all those 20 book-ins of all the arrests the Defendant had in the last 13 years.” Under these circumstances, Sorrells posits, “Any doubt the jury had as a result of his alibi witness, the confusion over his alias, or the possibility of misidentification was extinguished by the introduction of his lengthy criminal history.”

The trial court rejected Sorrells’s claim of deficient performance, citing the trial lawyer’s testimony of trial strategy. But evidence of Sorrells’s prior arrests would not have been presented to the jury had his trial lawyer not introduced the 20 unredacted booking reports, as the state had not sought to present any similar transaction evidence. And as was concluded under similar circumstances in cases such as Whitaker v. State and Emilio v. State, we conclude here that trial counsel’s actions constituted deficient performance and the trial court erred in holding otherwise.

[I]nvoking the words “tactics” and “strategy” does not automatically immunize trial counsel against a claim that a tactical decision or strategic maneuver was an unreasonable one no competent attorney would have made under the same circumstances. “Tactics” and “strategy” provide no talismanic protection against an ineffective assistance of counsel claim. Even assuming that trial counsel in this case knowingly made the tactical decision [challenged here], it is not a reasonable decision a competent attorney would have made under the same circumstances.

Sorrells thus proved that his lawyer erred in one of the two respects alleged, but prejudice must also be proved. And “it is the prejudice arising from ‘counsel’s errors’ that is constitutionally relevant, not that each individual error by counsel should be considered in a vacuum.” “To the extent that the performance of counsel was deficient in more than one respect, it is the collective effect of the deficiencies against which prejudice is measured.” Accordingly, in light of our holding in Division 2 (b), upon remand, the trial court shall determine whether (consistent with this division) Sorrells satisfied the prejudice prong of Strickland.

(b) We turn to Sorrells’s complaint that his trial lawyer did not move to reveal the identity of the confidential informant.

At the motion for new trial hearing, Sorrells’s lawyer acknowledged that he had not attempted to discover the informant’s identity. The lawyer testified that he had anticipated that the state would call both detectives to identify Sorrells as the man who had sold the cocaine and thus had determined that a third witness also identifying Sorrells as the seller would have been detrimental. Upon further questioning, however, the lawyer conceded that he had not known what the informant’s testimony might have been.

The trial court rejected Sorrells’s claim that his trial lawyer had erred by not seeking the confidential informant’s identity. The trial court reasoned that any motion to reveal the confidential informant’s identity would have been denied, determining that Sorrells would not have been able to make requisite threshold showings. Additionally, the trial court determined that by not pursuing the informant’s identity, “[Sorrells’s trial lawyer] was strategically implementing a form of ‘damage control.’ ”

Sorrells maintains on appeal that “the [informant’s] testimony could have been exculpatory” and thus his trial lawyer’s failure to seek the informant’s identity amounted to deficient performance. Further, Sorrells charges that the trial court should not have rejected his claim of deficient performance without first conducting an in camera hearing regarding the informant’s testimony.

“[T]he due process concept of fundamental fairness require[s] that the public interest in protecting the flow of information to law enforcement officials be balanced against the right of the accused to a full and fair opportunity to defend himself.”

For purposes of determining whether the State must reveal the identity of the confidential informant, the trial court must conduct a two-step hearing[.] Initially, the trial court should hear evidence to determine: (a) that the confidential informant is an alleged informer-witness or informer-participant whose testimony appears to be material to the defense on the issue of guilt or punishment; (b) that the testimony for the prosecution and the defense is or will be in conflict; and (c) that the confidential informant was the only available witness who could amplify or contradict the testimony of these witnesses. If the threshold is met, the trial court must conduct an in-camera hearing of the confidential informant’s testimony. The trial court should then weigh the materiality of the informer’s identity to the defense against the State’s privilege not to disclose his name under Roviaro.

An appellate court reviewing rulings thereon “may consider all relevant evidence contained in pretrial, trial, and post-trial proceedings.” The record here shows that, contrary to the trial court’s determination otherwise, the threshold requirements for an in camera hearing were satisfied. Because the confidential informant participated in the drug transaction, his testimony appears material to Sorrells’s defense of misidentification; the testimony presented by the prosecution was in conflict with that presented by Sorrells; and the confidential informant was the only available witness to the transaction who could have amplified or contradicted the testimony of the state’s witnesses concerning the seller’s identity.

Decided March 28, 2014

Reconsideration denied April 9, 2014

Lucy G. Huggins, H. Bradford Morris, for appellant.

J. Bradley Smith, District Attorney, Samuel E. Skelton, Assistant District Attorney, for appellee.

Furthermore, although the trial court determined that forgoing the informant’s identity was a strategic means of “damage control,” Sorrells’s trial lawyer conceded that he had not discerned that the informant’s testimony would have been damaging. Given the circumstances of this case, failure to seek the informant’s identity did not fall within the ambit of reasonable trial strategy, but was error.

In light of the foregoing, we vacate the trial court’s denial of Sorrells’s motion for a new trial.

On the record before us, we are unable to determine if [Sorrells’s] trial counsel’s failure to obtain the identity of the confidential informant prejudiced his case. Accordingly, the trial court is directed to conduct a post-trial, in-camera proceeding... to determine whether the failure to obtain the identity of the confidential informant was harmful.

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

Ellington, P. J., and Branch, J., concur in judgment only.

       The state introduced evidence that the substance passed from the man to the confidential informant in exchange for the money was later determined to he cocaine.

       See generally Thornton v. State, 238 Ga. 160, 163 (2) (231 SE2d 729) (1977) (noting public policy to protect and encourage the flow of information to law enforcement officials).

       Hence, that detective took measures for the man not to recognize him as a police officer: “I had my head down with my eyes •— or my hands over my face... to where I could still see what was going on ... you know, if something happened I could protect my undercover — the other undercover officer and the C. I.”

        Mathis v. State, 293 Ga. 837, 841 (5) (750 SE2d 308) (2013) (citation omitted; emphasis supplied).

       See generally Johnson v. State, 294 Ga. 86, 90 (4) (750 SE2d 347) (2013) (“An unduly suggestive procedure is one which leads the witness to the virtually inevitable identification of the defendant as the perpetrator, and is equivalent to the authorities telling the witness, ‘This is our suspect.’ ”) (citation omitted); Anderson v. State, 265 Ga. App. 428, 431 (3) (A) (594 SE2d 669) (2004) (determining that showing suspects singly to a witness for identification purposes is inherently suggestive).

        Butler v. State, 290 Ga. 412, 415 (3) (721 SE2d 876) (2012) (citations omitted); see Tucker v. State, 316 Ga. App. 119, 121 (728 SE2d 764) (2012); see also Jones v. State, 273 Ga. 213, 216 (2) (539 SE2d 143) (2000) (explaining that where there is no “substantial likelihood of irreparable misidentification . . . , then both the pre-trial and in-court identifications are admissible”).

        Mathis, supra at 842 (5) (citation omitted); see McBride v. State, 291 Ga. 593, 594-595 (2) (732 SE2d 757) (2012) (enumerating factors to be considered in answering the question whether there was a very substantial likelihood of irreparable misidentification), citing Neil v. Biggers, 409 U. S. 188, 199 (III) (93 SCt 375, 34 LE2d 401) (1972).

        Scandrett v. State, 293 Ga. 602, 603 (2) (748 SE2d 861) (2013) (citation and punctuation omitted).

       Id. (citation and punctuation omitted); see Jones, supra (instructing that, “in evaluating ... factors, the trial court is the trier of fact and must judge the credibility of the witnesses and the weight and conflict in the evidence”).

       See generally Johnson, supra; Anderson, supra.

       See Scandrett, supra at 603-604 (2) (rejecting claim that identification evidence by eyewitness to the murder was inadmissible, where witness’s in-court identification of defendant had an independent origin from out-of-court identification; witness testified at hearing conducted before contested evidence was admitted that he was in close contact with the defendant at the time of the murder and had “got a good look” at the defendant and that he would never forget the face of the man who had shot his friend); Jones, supra (rejecting claim of substantial likelihood of misidentification, where witnesses had two opportunities to observe defendant on night in question, witnesses had the chance to see the defendant under a bright street light, witnesses all gave consistent descriptions of defendant’s appearance, witnesses were all certain of their identifications, and initial identifications of defendant occurred shortly after the crimes); Hamilton v. State, 180 Ga. App. 284, 285 (1) (349 SE2d 230) (1986) (finding identification testimony admissible, where witness was “a police officer, trained to observe, remember and identify suspects and persons committing offenses in his presence”; witness observed defendant during, before, and after the thirty-second drug transaction; witness immediately wrote down description of appellant, and witness testified that his identification was based on his observation of defendant on the night of the drug sale, not on the contested identification procedure).

       See Scandrett, supra; Jones, supra; Hamilton, supra.

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

        Valentine v. State, 293 Ga. 533, 537 (3) (748 SE2d 437) (2013) (citations and punctuation omitted).

        Hill v. State, 290 Ga. 493, 499 (7) (722 SE2d 708) (2012) (citations and punctuation omitted).

       The arrest dates shown for these charges were June 28, 2006 and March 3, 2002, respectively.

       The arrest date for this charge was July 10, 2007.

       See generally Williams v. State, 261 Ga. 640, 641 (2) (a) (409 SE2d 649) (1991) (explaining that “evidence of an independent offense or act committed by the accused is highly and inherently prejudicial, raising ... an inference that an accused who acted in a certain manner on one occasion is likely to have acted in the same or in a similar manner on another occasion and thereby putting the accused’s character in issue”; and holding that before any evidence of independent offenses or acts may be admitted into evidence, a hearing must be held at which the state must make affirmative showings as to each independent offense or act it seeks to introduce).

       276 Ga. App. 226 (662 SE2d 916) (2005).

       263 Ga. App. 604 (588 SE2d 797) (2003).

       See Whitaker, supra at 227 (1) (finding deficient performance, where defense counsel introduced in evidence unredacted exhibit showing that defendant had previously been charged with an identical crime and two closely related crimes, yet offered at new trial hearing no explanation for failing to redact the exhibits); Emilio, supra at 605 (1) (finding deficient performance, where defense counsel introduced an exhibit as part of a trial strategy to impeach a witness, where exhibit also stated that the defendant was wanted in five states and implied that the Georgia Bureau of Investigation was investigating the case).

        Benham v. State, 277 Ga. 516, 517 (591 SE2d 824) (2004) (citation and punctuation omitted; emphasis in original).

       See Kendrick v. State, 287 Ga. 676, 680 (4) (699 SE2d 302) (2010).

        Schofield v. Holsey, 281 Ga. 809, 812, n. 1 (642 SE2d 56) (2007).

        State v. Worsley, 293 Ga. 315, 324 (3) (745 SE2d 617) (2013), citing Schofield, supra.

       Infra.

       See Worsley, supra; Kendrick, supra; Schofield, supra.

       On motion for new trial, Sorrells asked the trial court to conduct a post-conviction in-camera hearing to determine whether the failure to identify the confidential informant was harmful to his defense.

        Thornton, supra at 164 (2), citing Roviaro v. United States, 353 U. S. 53 (77 SCt 623, 1 LE2d 639) (1956).

        Hernandez v. State, 291 Ga. App. 562, 569 (3) (662 SE2d 325) (2008), citing Roviaro, supra (punctuation and footnotes omitted); see Thornton, supra at 163-165 (2).

        Hernandez, supra at 568-569 (3), n. 20 (citation and punctuation omitted).

       See Little v. State, 230 Ga. App. 803, 808-810 (3) (498 SE2d 284) (1998) (concluding that the threshold requirements for an in camera hearing were met, where the police officer’s testimony was in conflict with the defense witness’s testimony that the defendant was not at the drug scene and thus could not have participated in the drug transaction, and where the confidential informant was the only available witness to the drug transaction who could have amplified or contradicted their testimony; noting further that the defendant elected not to testify); Hampton v. State, 215 Ga. App. 57-58 (449 SE2d 654) (1994) (concluding that an in camera proceeding to determine whether the failure to obtain identity of confidential informant was harmful was required, where testimony of undercover police officer working with confidential informant conflicted with the testimony of defendant).

        Turpin v. Christenson, 269 Ga. 226, 239 (12) (A) (497 SE2d 216) (1998) (“An attorney is not ineffective because he fails to follow every evidentiary lead, but an attorney’s strategic decision is not reasonable when the attorney has failed to investigate his options and make a reasonable choice between them.”) (citation and punctuation omitted).

        Hampton, supra.


author: Ray, Judge.

text:
    A13A1786.
    MITCHELL v. THE STATE.
    (755 SE2d 308)
   Ray, Judge.

A DeKalb County jury convicted Christopher Mitchell of armed robbery (OCGA § 16-8-41). Mitchell appeals, contending that the trial court erred in excluding the testimony of two newly-discovered defense witnesses. He also contends that he had ineffective assistance of counsel. For the reasons that follow, we reverse.

At trial, the State relied primarily on the testimony of the victim, Ronald Haywood. Viewed in the light most favorable to the guilty verdict, the evidence showed that Haywood had previously worked with a man known by the nickname “Naro.” One day, Haywood mentioned to Naro that he wanted to buy a laptop computer, and Naro indicated that his cousin had one for sale. Shortly thereafter, Haywood sent a text message to Naro’s phone stating that he wanted to purchase the laptop, and he received a text reply from a man who identified himself as Naro’s cousin, stating that ‘Ves, I have the computer to sell.” Haywood and the man agreed to meet at a Church’s Chicken restaurant. The man then gave Haywood another phone number with which to contact him, and Haywood wrote the number down on a piece of paper. According to Haywood, he had never met nor seen Naro’s cousin before and did not know his name, but the man had indicated that he would be in a burgundy Ford Taurus.

When Haywood arrived at the Church’s Chicken restaurant, he did not see anyone there. Haywood then called the phone number that he had been given, and the man who had previously identified himself as Naro’s cousin told Haywood to meet him at an apartment complex.

Upon his arrival at the apartment complex, Haywood saw two men waving at him. Haywood then attempted another telephone call to see if one of the men was Naro’s cousin, but he got no response. As Haywood was driving away, Naro’s cousin called back and confirmed that he was one of the men who had been waving at him. Haywood returned and found one of the men standing near the entrance of the apartment complex, but the second individual was not with him. The man then got into the vehicle with Haywood and directed him to an apartment in the back of the complex. As Haywood was parking his vehicle, he observed a burgundy Ford Taurus parked nearby in the parking lot. After exiting his vehicle, Haywood and the man walked around the back of the apartment building, and the man pulled out a silver handgun and pointed it at Haywood. During the robbery, Haywood was instructed to remove his clothes and run away, and the man took Haywood’s pants containing his driver’s license, car keys, and $250 in cash.

Haywood later gave the police a description of the robber and the Ford Taurus, as well as the phone number that he had used to contact the man. During the subsequent investigation, the police learned that the phone number belonged to Mitchell and that the Ford Taurus was registered to Charles White, the father of Mitchell’s friend. Haywood was presented with a photographic lineup, and he positively identified Mitchell as the man who had robbed him. The silver handgun used in the robbery and the items taken from Haywood were never recovered.

Mitchell was arrested and subsequently interviewed by the police. After being advised of his Miranda rights, Mitchell admitted that he was Naro’s cousin, that Carlos White was his friend, and that Carlos usually drove the Ford Taurus.

Based on the above evidence, the jury found Mitchell guilty of armed robbery and not guilty of possession of a firearm during the commission of a felony.

1. Mitchell contends that the trial court erred when it denied his request to permit two newly-discovered witnesses to testify for the defense. We agree.

The victim and sole eyewitness, Haywood, was the first witness to testify at trial. On direct examination, Haywood recounted his version of the events and specifically testified that he had neither seen nor met Mitchell (Naro’s cousin) prior to the robbery. During a brief recess, Mitchell’s trial counsel was approached by two individuals who had been sitting in the courtroom observing the trial. They informed counsel that they recognized Haywood when he came into the courtroom, that Haywood was known by a different name in the community, and that Haywood had known Mitchell for several years. Thus, the existence of these witnesses and the relevance of the information they possessed did not become apparent until Haywood appeared on the witness stand and testified.

At the trial court’s request, Mitchell’s counsel made a proffer of what the witnesses would testify to, and it was readily apparent from this proffer that the credibility of the victim could be called into question. However, the trial court ultimately denied Mitchell’s request to permit the witnesses to testify because (i) their names were not provided to the State prior to trial and (ii) these witnesses had remained in the courtroom during Haywood’s testimony in violation of the rule of sequestration.

(a) Reciprocal discovery. OCGA § 17-16-6 provides, in pertinent part:

... If at any time during the course of the proceedings it is brought to the attention of the court that the defendant has failed to comply with the requirements of [reciprocal discovery], the court may order the defendant to permit the [State to] interview . . . the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from . . . presenting the witness not disclosed[.]

(Punctuation omitted; emphasis supplied.)

In ruling on the State’s objection to the witnesses based on the alleged discovery violation, the trial court erred by failing to require the State to make the requisite showing of prejudice and bad faith as required by OCGA § 17-16-6. See Webb v. State, 300 Ga. App. 611, 613-614 (685 SE2d 498) (2009); Ware v. State, 298 Ga. App. 232, 234 (2) (679 SE2d 797) (2009); Williams v. State, 256 Ga. App. 249, 251 (1) (568 SE2d 132) (2002); Hill v. State, 232 Ga. App. 561, 562 (502 SE2d 505) (1998) (“trial court had discretion under OCGA § 17-16-6 to exclude the testimony of a nondisclosed defense witness only upon a showing of prejudice to the State and bad faith by the defense”).

Notably, in its order denying Mitchell’s motion for new trial, the trial court specifically found, in relation to one of Mitchell’s ineffective assistance claims, that trial counsel “was not deficient for not placing [the] two witnesses on the defense witness list because he did not know about the witnesses until the trial was underway.” As the record clearly shows that there was no bad faith on the part of Mitchell in failing to disclose the newly-discovered witnesses, the trial court erred in excluding the witnesses based on a violation of reciprocal discovery. Webb, supra.

(b) Sequestration. The trial court’s decision to exclude Mitchell’s defense witnesses was also based, in part, on a violation of the rule of sequestration. The trial court found that Mitchell had invoked the rule of sequestration “and then chose not to follow it,” and that “he should not be rewarded for circumventing the meaning of the rule of sequestration[.]” However, the record does not support the trial court’s reasoning.

Here, at the time the rule was invoked, the two individuals at issue were not potential witnesses. They became witnesses only after Haywood appeared on the witness stand and testified, and they promptly informed defense counsel of this fact. As noted in subsection (a) of this Division, the trial court found that Mitchell’s counsel did not know about the witnesses until after the trial was underway. Under these circumstances, we fail to see how trial counsel could have “chosen” to disregard the rule of sequestration.

Decided March 17, 2014

Reconsideration denied April 9, 2014

Gerard B. Kleinrock, for appellant.

Robert D. James, Jr., District Attorney, Elizabeth A. Baker, Leonora Grant, Assistant District Attorneys, for appellee.

Moreover, even if we were to assume that the rule of sequestration had been violated, exclusion of the witnesses was not the proper remedy. See Jordan v. State, 247 Ga. 328, 347 (10) (276 SE2d 224) (1981) (in light of a defendant’s constitutional right to call witnesses on his behalf, a defense witness who has violated the rule of sequestration in a criminal case shall not be prevented from testifying).

When the rule of sequestration is violated, the violation goes to the credibility rather than the admissibility of the witness’ testimony. A party’s remedy for a violation of the rule is to request the trial court to charge the jury that the violation should be considered in determining the weight and credit to be given the testimony of the witness.

(Citation and footnote omitted.) Robinson v. State, 246 Ga. App. 576, 583 (7) (541 SE2d 660) (2000).

Accordingly, to the extent that the trial court’s decision was based on a violation of the rule of sequestration, it was error to exclude the witnesses from testifying. Jordan, supra.

When this issue arose at trial, the trial court requested Mitchell’s counsel to make a proffer of what the witnesses would testify to, and it was readily apparent from this proffer that the witnesses’ testimony could have been used to impeach Haywood. As the State’s case against Mitchell hinged on the credibility of Haywood as the sole eyewitness to the armed robbery, we cannot say that the exclusion of the witnesses’ testimony was harmless. Accordingly, Mitchell’s conviction must be reversed.

2. We do not address Mitchell’s remaining enumeration of error relating to ineffective assistance of counsel as it is not likely to recur on retrial.

Judgment reversed.

Barnes, P. J., and Miller, J., concur.

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

       Mitchell’s friend, Carlos Ricardo White, was also charged as a co-defendant in the indictment, but the trial in this case proceeded only against Mitchell.

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

       Trial counsel stated to the trial court that, prior to trial, neither Mitchell nor the two individuals knew anyone by the name of “Robert Haywood” and that it was only after Haywood appeared at trial that they recognized him as someone they knew.


author: McMlLLIAN, Judge.

text:
    A13A1864.
    MORROW et al. v. ANGKAWIJANA, LLC et al.
    (755 SE2d 561)
   McMlLLIAN, Judge.

Laura Morrow, as surviving spouse of Brandon T. Morrow, deceased, and Richard B. Russell, Jr., as administrator of the estate of Brandon T. Morrow (collectively referred to as the “Morrows”), appeal the trial court’s grant of summary judgment in favor of Angkawijana, LLC, IMAEX Trading Company, and The Russell Corporate Groups, Inc. (“RCG”), in their suit arising out of a two-car collision that resulted in the death of Brandon T. Morrow. The Morrows also appeal the trial court’s order granting RCG’s motion to dismiss their claims as barred by the applicable statute of limitations. We affirm for the reasons set forth below.

“On appeal from the grant or denial of a motion for summary judgment, we apply a de novo standard of review, viewing the evidence and all reasonable inferences and conclusions drawn from it in the light most favorable to the nonmoving parties.” (Citation and punctuation omitted.) Myers v. First Citizens Bank & Trust Co., Inc., 324 Ga. App. 293, 294 (750 SE2d 378) (2013). So viewed, the record shows that Brandon Morrow was killed on June 20, 2007, when the car in which he was riding collided with another vehicle (the “Accident”). Brandon Morrow’s co-worker, Martin Dean Williams, was driving, and the two were headed to lunch with another co-worker, Arthur Collins. Brandon Morrow was sitting in the back seat, and Collins was riding in the front passenger seat. After leaving their workplace, Williams made a left from Crestridge Court onto Crest-ridge Drive in Suwanee, Georgia (the “Intersection”). As Williams made the turn, his car was struck by an automobile driven by Ivan Basilio Crisan, who was traveling on Crestridge Drive toward the Intersection. Shortly after the collision, Williams reported a “blind spot when pulling onto Crestridge Drive,” and later explained that the curve of the roadway and shrubbery at the Intersection (the “Shrubbery”) obscured his view.

At the time of the Accident, Angkawijana owned the property at 65 Crestridge Drive (the “Property”), which sits at the southeastern corner of the Intersection and contains the Shrubbery. IMAEX has leased the Property from Angkawijana since its purchase in 2001, and IMAEX hired RCG to maintain the Property’s landscaping. RCG’s duties at the time of the Accident included cutting the grass, “do[ing] the hedging,” blowing leaves, cutting back bushes, laying pine straw and aerating the ground.

The Morrows filed suit on June 11, 2009, asserting negligence claims against both drivers and further asserting claims of negligence per se against Angkawijana and IMAEX in connection with the maintenance of the Shrubbery at the time of the Accident. The Morrows asserted that the two companies were negligent in installing and maintaining the Shrubbery, which the Morrows alleged obstructed the view of Crestview Drive for drivers on Crestridge Court in violation of OCGA § 32-6-51 (b) (3). On June 29, 2010, over one year after filing suit and over three years after the Accident, the Morrows filed a motion to add RCG as a defendant. The trial court granted the order on August 23, 2010, but the Morrows waited until November 3, 2010, to file an amended complaint adding RCG as a party and asserting that it was negligent in performing its duties with regard to the Shrubbery.

1. Angkawijana, IMAEX, and RCG subsequently filed the motions for summary judgment that are the subject of this appeal. The Morrows argue that the trial court erred in granting the motions because they assert that the ruling is in direct contravention of the decision of the Supreme Court of Georgia in Fortner v. Town of Register, 278 Ga. 625 (604 SE2d 175) (2004).

The Morrows based their negligence claims against Angkawijana, IMAEX, and RCG on an alleged violation of OCGA § 32-6-51 (b) (3), which provides in relevant part:

It shall be unlawful for any person to erect, place, or maintain in a place or position visible from any public road any unauthorized sign, signal, device, or other structure which:... [ojbstructs a clear view from any public road to any other portion of such public road, to intersecting or adjoining public roads, or to property abutting such public road in such a manner as to constitute a hazard to traffic on such roads [.]

And “[w]here vegetation is purposely planted, whether for landscaping or some other function, it may constitute a ‘structure’ as used in statutory language.” Fortner, 278 Ga. at 627 (2). See also Rachels v. Thompson, 290 Ga. App. 115, 117 (658 SE2d 890) (2008). In the Fortner case, the Supreme Court determined that under OCGA § 32-6-51 (b) (3), “the maintenance of such an obstruction constitutes negligence when it creates a traffic hazard and is unauthorized.” (Emphasis supplied.) Fortner, 278 Ga. at 627-628 (2). Thus, to establish their claims against Angkawijana, IMAEX, and RCG, the Morrows had the burden of showing both that the Shrubbery created a hazard and that it was placed or maintained at the Intersection without authorization. See also Howard v. Gourmet Concepts Intl., Inc., 242 Ga. App. 521, 522 (1) (529 SE2d 406) (2000) (“To recover at trial, plaintiff must show that the objects on private property adjacent to the right-of-way were unauthorized.”). The Supreme Court construed “the term ‘unauthorized,’ as used in OCGA § 32-6-51 (b), to include not only the placement or maintenance of structures which are prohibited by some statute, code or local ordinance, but also those that lack any governmental authorization.” Fortner, 278 Ga. 628 (2).

The motions for summary judgment asserted, inter alia, that the Morrows failed to present evidence to support their claim that the Shrubbery lacked the requisite authorization. It is axiomatic that

a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

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

In response to RCG’s motion for summary judgment, the Morrows argued that “governmental authorization or lack thereof, is not a prerequisite for liability under this statute”; in other words, the Morrows asserted that they were only required to show that a hazard existed. But in response to the summary judgment motion of Angkawijana and IMAEX, the Morrows apparently conceded that they had the burden to show that the Shrubbery was governmentally unauthorized and argued that “[m]aintenance of the shrubbery so as to constitute a traffic hazard is not authorized.” More specifically, they argued that the Shrubbery in this case was unauthorized because it obstructed the line of sight (the “sight line”) from Crest-ridge Court onto Crestridge Drive at the Intersection in violation of the Gwinnett County Development Regulations, which they asserted allows landscaping in private developments only if sight distances as required by the regulations are preserved.

The trial court held two hearings on the summary judgment motions. At the first hearing, the trial court asked the Morrows’ counsel to identify the evidence they had on the issue of authorization, and counsel responded the shrubbery was unauthorized “if it impairs the sight line,” and no second level of unauthorization is required. At the second hearing, the Morrows’ counsel stated that they believed that “the question of unauthorized is inapplicable, but even if it is applicable, we filed a Gwinnett County regulation that said that you can maintain shrubbery as long as provided sight distance required by these regulations are preserved.”

The trial court ultimately found that the Morrows failed to establish a jury question on the issue of whether the Shrubbery lacked governmental authorization. We agree, but not for the reasons cited by the trial court.

Although the Morrows’ arguments below shifted slightly with each iteration, they may be summarized as follows: (1) proof of unauthorization is not an element of their claim; (2) even if it is an element, the Shrubbery was unauthorized simply because it blocked the sight lines; and (3) in any event, this obstruction violated the Gwinnett County regulations. As discussed above, however, the Fortner decision clearly holds that proof of governmental unauthorization is an element of a claim under OCGA § 32-6-51 (b). Further, in that opinion, the Supreme Court expressly approved this Court’s holding in Town of Register v. Fortner, 262 Ga. App. 507 (586 SE2d 54) (2003), that “a railroad right-of-way . . . constitutes private property and, thus, an obstruction thereon is not per se unauthorized.” Fortner, 278 Ga. at 628 (2). Therefore, a plaintiff seeking relief under OCGA § 32-6-51 (b) against a private landowner must prove something more than that a structure created an obstruction of the sight line, and the Morrows’ argument that the Shrubbery was unauthorized simply because it blocked the sight lines is without merit.

The only other basis the Morrows asserted below to support their claim that the Shrubbery was unauthorized was their contention that it obstructed the sight line in violation of Gwinnett County regulations. However, we are unable to review the merits of the Morrows’ arguments in this regard because they have failed to prove the Gwinnett County regulations upon which they rely to support their claim. The Morrows fail to cite us to any certified copy in the record of the Gwinnett County regulations, and we have found none. “It is well established by numerous decisions of this court that judicial notice can not be taken by the superior court or [the appellate courts] of city or county ordinances, but they must be alleged and proved.” (Citation and punctuation omitted.) Thorsen v. Saber, 288 Ga. 18, 19 (1) (701 SE2d 133) (2010). See also Childers v. Richmond County, 266 Ga. 276, 277 (467 SE2d 176) (1996). And

[t]he proper method of proving a [county regulation] is by production of the original or of a properly certified copy. The record contains neither the original nor a properly certified copy of the [county-promulgated] document which purportedly contains the provisions which [the Morrows seek] to enforce judicially.

(Citation and punctuation omitted.) Thorsen, 288 Ga. at 19 (1). See also former OCGA § 24-7-22 (allowing judicial notice and self-authentication of properly certified county record).

Moreover, the Morrows neither alleged a violation of the Gwinnett County regulations in the Complaint, nor do they cite us to any stipulation from counsel regarding these regulations. Accordingly, this is not a case where the county regulations “are set forth verbatim in the pleadings or an uncertified copy is attached to the complaint and the defendant admits the ordinance or regulations in the answer. . . .” (Citation and punctuation omitted.) Prime Home Properties, LLC v. Rockdale County Bd. of Health, 290 Ga. App. 698, 700 (1) (660 SE2d 44) (2008).

To the contrary, the record clearly shows that the parties never agreed about the applicable sight line for the Intersection. For example, RCG’s counsel stated at the first summary judgment hearing that the Gwinnett County regulations provided for a 350-foot sight line, but the Morrows’ attorney disputed that the applicable sight line was 350 feet and instead asserted it “should be” 390 feet as required in the American Association of State Highway and Transportation Officials (“AASHTO”) guidelines discussed by two of the expert witnesses. See generally City of Macon v. Smith, 117 Ga. App. 363 (160 SE2d 622) (1968) (limiting stipulation to matters regarding which parties agreed where plaintiff failed to prove municipal ordinance).

To the extent that the Morrows rely upon AASHTO guidelines, we find that they failed to prove either the content or applicability of any such guidelines. First, the Morrows have failed to cite to any properly authenticated copy of these guidelines in the record. See Howell v. Willis, 317 Ga. App. 199, 205 (729 SE2d 643) (2012) (expert testimony insufficient to establish the contents of a particular code or standard unless copies are made part of the record); Dayoub v. Yates-Astro Termite Pest Control Co., 239 Ga. App. 578, 581 (2) (b) (521 SE2d 600) (1999) (“The general rule [is] that safety codes or rules promulgated by government departments or voluntary associations for their informative value do not have the force of law” and such standards “are not admissible without expert testimony to identify, authenticate, and explain them”) (citation omitted).

Second, we agree with the trial court that the Morrows failed to establish the applicability of any AASHTO guidelines to this case. The Morrows neither alleged nor proved that the applicable Gwinnett County regulations adopted sight lines as set forth in any AASHTO guidelines, nor did the Morrows establish that the AASHTO guidelines, which one expert described as “the book that... all states use to design roads,” otherwise had any application to the Intersection in this case. No evidence exists that the State built the Intersection; to the contrary, the record suggests that the Intersection was constructed as part of a private development. The Morrows also failed to establish any other basis for the guidelines to apply to the privately-owned Property in this case. See Sotomayor v. TAMA I, LLC, 274 Ga. App. 323, 325 (617 SE2d 606) (2005) (physical precedent only) (disregarding AASHTO guidelines in absence of evidence that such guidelines specifically referenced the construction of residential parking lots at issue in case). Accordingly, without the requisite proof of the pertinent portions of the Gwinnett County Development Regulations or the AASHTO guidelines, we are unable to consider them or any testimony as to their contents. See Martin v. Johnson-Lemon, 271 Ga. 120, 122 (516 SE2d 66) (1999) (affirming trial court’s exclusion of and decision not to consider content of county regulations or expert testimony regarding such regulations, where plaintiff failed to properly prove the regulations).

We conclude, therefore, that once Angkawijana, IMAEX, and RCG pointed to a lack of evidence showing that the Shrubbery was unauthorized, the burden shifted to the Morrows to come forward with evidence showing that it lacked governmental authorization. The Morrows chose to assert that the Shrubbery violated county regulations and/or AASHTO guidelines, and because they failed to prove those regulations or guidelines, they failed to establish that any issue of fact exists with regard to an essential element of their claim under OCGA § 32-6-51 (b) (3).

The Supreme Court of Georgia has held that “[e]ach party has a duty to present his best case on a motion for summary judgment.” Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 828 (2) (573 SE2d 389) (2002). Thus, the Court “has specifically held that, in responding to a motion for summary judgment, plaintiffs have a statutory duty to produce whatever viable theory of recovery they might have or run the risk of an adjudication on the merits of their case.” (Citation and punctuation omitted.) Id. Here, the Morrows failed to present evidence in support of their claims of a violation of OCGA § 32-6-51 (b) (3), and the trial court properly granted the motions of Angkawijana, IMAEX, and RCG for summary judgment. See HWA Properties, Inc. v. Community & Southern Bank, 322 Ga. App. 877, 885, n. 12 (746 SE2d 609) (2013) (“A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.”) (citation and punctuation omitted).

2. The Morrows also appeal the trial court’s grant of RCG’s motion to dismiss on statute of limitation grounds, but given our holding in Division 1 above, we need not reach this argument.

Decided March 27, 2014

Reconsideration denied April 9, 2014

Carley, Gregory & Gregory, George H. Carley, Hardy Gregory, Jr., Hilley & Frieder, Ronald L. Hilley, Mia I. Frieder, for appellants.

Lokey, Mobley & Doyle, G. Melton Mobley, Dawn N. Pettigrew, Cruser & Mitchell, J. Robb Cruser, Philip W. Catalano, Jr., Drew, Eckl & Farnham, Stevan A. Miller, Edwin A. Treese, Anderson, Tate & Carr, Render C. Freeman, Jennifer A. J. Green, Pamela S. Webb, for appellees.

Judgment affirmed. Andrews, P. J., and Dillard, J., concur.

       In the Morrows’ response to the Statement of Theory of Recovery filed by Angkawijana and IMAEX, they summarized their argument, as follows, “The landscaping at the intersection of Crestridge Drive and Crestridge Court is unauthorized since it obstructs the sight line at the intersection.”

       To the extent that the Morrows attempt to assert any other basis on appeal to support their claim that the Shrubbery was unauthorized, we will not consider it. It is well settled appellate courts “will not consider new arguments in opposition to a motion for summary judgment raised for the first time on appeal.” Craig v. Bailey Bros. Realty, 304 Ga.App. 794, 798 (2), n. 3 (697 SE2d 888) (2010). See also Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 828 (2) (573 SE2d 389) (2002).

       This Court’s initial opinion in Town of Register addressed only the issue of whether the structure violated a statute, rule, or regulation, and not any other basis for a lack of authorization. 262 Ga. App. at 508 (1). The Supreme Court’s majority opinion reversed, holding that the element of unauthorization was not limited to a violation of a statute, rule, or regulation, but was broad enough to encompass any other lack of governmental authorization. Fortner, 278 Ga. at 628 (2). .And on remand, this Court did not re-visit the claim under OCGA § 32-6-51 (b), but rather addressed Fortner’s common law claims. Town of Register v. Fortner, 274 Ga. App. 586 (618 SE2d 26) (2005). Thus, it is unclear what other evidence existed in the record on the lack of authorization.

       The Morrows’ counsel also argued below, without citation, that the defendants, and not the Morrows, had the burden of showing that a governmental entity actually authorized the Shrubbery. Although proof of a lack of authorization could require proof of a negative, thus potentially shifting the burden of proof in some cases to the defendant, the Morrows chose to base their claim of unauthorization on an affirmative violation of a county regulation. Thus, they retained the burden of proof on that element. See generally Mayo v. Owen, 208 Ga. 483, 487 (2) (67 SE2d 709) (1951) (shifting burden to prove a negative to defendant who had primary control over the proof). See also OCGA § 24-4-1 under the prior Evidence Code (currently codified at OCGA § 24-14-1).

       We note that “[i]t is not the function of this Court to cull the record [, in this case, a 19-volume, 5,000-page record,] on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.” (Citation and punctuation omitted.) Guilford v. Marriott Intl., Inc., 296 Ga. App. 503, 504 (675 SE2d 247) (2009).

       Georgia’s former Evidence Code applies to the motions for summary judgment in this case as they were made, and the hearing on them commenced, before January 1, 2013, even though the trial court issued its orders after that date. See Ga. L. 2011, pp. 99, 214, § 101 (providing that the new Evidence Code “shall apply to any motion made or hearing or trial commenced on or after [January 1, 2013]”). In any event, the result would be the same under OCGA § 24-2-221 of the new Evidence Code, which tracks the language of OCGA § 24-7-22, with the exception that it cites to provisions in the new Evidence Code in place of the former code provisions and it expressly provides that judicial notice may be taken of a “certified copy” of an ordinance or resolution. (Emphasis supplied.) See also Sweeney v. Lowe, 325 Ga. App. 883 (755 SE2d 813) (2014) (holding that it would have been error for trial court to have considered municipal ordinance where no certified copy appeared in the record under OCGA § 24-2-221).

       Additionally, the Morrows’ assertion that Angkawijana, IMAEX, and RCG admitted that the Shrubbery lacked authorization is without merit. The portions of the record the Morrows cite do not support such an assertion. To the contrary, these defendants consistently have maintained that the Morrows have failed to present evidence creating an issue of fact as to the element of unauthorization.

       Although Angkawijana, IMAEX, and RCG referenced the Gwinnett County regulations in their briefing and argument, these references do not amount to evidence of the content of those regulations or a stipulation of the actual standards. See Latimore v. City of Atlanta, 289 Ga. App. 85, 87 (656 SE2d 222) (2008) (“[Assertions of fact contained in the briefs of the parties do not, standing alone, constitute competent evidence for the resolution of a summary judgment issue.”) (citation and punctuation omitted); Flippen Alliance for Community Empowerment, Inc. v. Brannan, 267 Ga. App. 134, 136 (1) (601 SE2d 106) (2004) (“It is axiomatic that statements in briefs are not evidence.”) (citation and punctuation omitted).

       We are assuming that references by the Morrows to AASHTO relate to this organization, although it is never defined in the Morrows’ briefing.

       See generally OCGA §§ 24-9-901 and 24-9-902 (addressing authentication of documents under Georgia’s new Evidence Code).

       The Morrows properly note that the Supreme CourtheldinForiraerthatOCGA § 32-6-51 (b) (3) did not preempt the common law, and thus “[t]o the extent that the common law imposed the duty to prevent vegetation from obstructing vision at a railroad crossing, that duty remains in effect.” 278 Ga. at 627 (1). The same would be true to the extent that the common law imposed the duty to prevent vegetation from obstructing a clear view from any public road to an intersecting road. But the Morrows failed to articulate any such common law claim in the trial court below. Although the Morrows attempt to articulate a basis for such a claim in the appellate briefing, we cannot consider it for the first time on appeal. Pfeiffer, 275 Ga. at 828 (2); Craig, 304 Ga. App. at 798 (2), n. 3. Accordingly, we expressly do not reach the issue of whether a claim of common law negligence could exist under the facts of this case.

       The Morrows further appealed the trial court’s order granting summary judgment to Weeks Realty Services, Inc., Duke-Weeks Realty Services, LLC, and Weeks Horizon Corporation. But the Morrows reached a settlement with these parties and filed a motion to dismiss them from the appeal, which this Court granted on June 25, 2013. Accordingly, we are not required to address the Morrows’ third enumeration.


text:
    A13A2099.
    DEAN v. THE STATE.
    (755 SE2d 245)
   Phipps, Chief Judge.

Michael Dean appeals his convictions for armed robbery,* aggravated assault, and possession of a firearm during the commission of a felony. He contends that the trial court erred by: (1) allowing the state to introduce a witness’s out-of-court statement without laying a proper foundation and after the witness had been released from subpoena; and (2) not merging the aggravated assault offense into the armed robbery offense for sentencing purposes. For the reasons that follow, we affirm the judgment in part, vacate the judgment in part, and remand the case for resentencing and for consideration of ineffective assistance of counsel claims.

The evidence at trial showed the following. N. J. agreed to work as a confidential informant for law enforcement officials to “work off” pending criminal charges. As part of that agreement, he arranged for the purchase of marijuana from Richard Burnam. After N. J. made a phone call to set up the deal, officers gave him $600 to purchase the marijuana. N. J. put the $600 in his pocket, where he also had approximately $115 of his own money. N. J. did not have a valid driver’s license, so a friend, L. M., drove him to a location to meet Burnam. L. M. drove her truck, and she and N. J. picked up Burnam, who sat in the back seat. L. M. drove to a different location, where the three met Dean. Law enforcement officers followed.

N. J. testified that when they encountered Dean, Dean initially spoke with him, but then stated that he was “going to deal with [Burnam].” Dean walked to the rear passenger door of the truck, where Burnam sat, and opened the door. Dean then returned to N. J. and pointed a gun at his side, demanding, “Let me get that.” Dean then took N. J.’s money and cell phone, and asked: “Do I need to get the keys to the truck or anything like that?” N. J. testified that he told Dean, “No, man. You can have that.” Dean and Burnam then ran away. With N. J. in the truck, L. M. then sped away. They encountered law enforcement officers “coming down the road. ... So when [L. M. and N. J.] got to the top of the road, [N. J.] got out the truck . . . and got in the truck with [the] [o]fficer . . . and told him what had just happened.”

Officers chased Dean and Burnam, and had them in custody within about five minutes. Officers found $118 on Burnam’s person, $600 on Dean’s person, and a revolver in the area where Dean was apprehended. During the chase, officers observed Dean reach for his waistband and make a motion tossing something on the ground. As one officer testified, “I searched the immediate area of where he was at. . . and that’s when I found a revolver.”

L. M. testified that she did not see a robbery occur, but that she saw that “something wasn’t right.” She affirmed that what she had heard did not “sound like a drug deal,” and she stated that after N. J. had shut his door, he told her to “get out of here.” L. M. testified that she saw the individual whom she and N. J. had picked up and an individual whom she stated had approached N. J.’s side of the truck, running away, and that she had “mashed the gas and just tried to get out of there.”

At trial, Burnam testified pursuant to a grant of immunity. He stated that the drug transaction that occurred between Dean and N. J. was “normal,” that he did not see Dean with a gun, and that he did not witness a robbery. But before trial, Burnam had given law enforcement officers a written statement of his account of what had occurred; that written statement was presented to the jury. In the statement, Burnam admitted that he had arranged for N. J. to purchase marijuana from his “weedman,” whom Burnam identified at trial as Dean; but stated that he (Burnam) ran away from the transaction because he saw Dean running up to the truck with another individual and thought that Dean and the individual were “gonna get me too!” Burnam wrote that after he ran away and “made it to the other side of the apartments, [Dean] came out of nowhere and asked me what [I] was running for and [I] said, cause thought u was about to ‘Rob’ us. [A]nd he said [I] didnt want u [I] got what [I] wanted And he said he was going to holla at me when [I] got ready to go thru the pathwayf.]”

1. Dean contends that the trial court erred by allowing the state to introduce Burnam’s out-of-court statement because: (a) the prosecutor failed to lay a proper foundation for admission of the statement; and (b) the statement was admitted after the witness had been released from subpoena.

(a) When the prosecutor moved to have Burnam’s written statement admitted in evidence through the testimony of an investigator, Dean’s counsel stated: “I object to the admission of the statement, Your Honor. . . . Mr. Burnam, has already spoken. He testified,” and “We’ve excused him.” The prosecutor argued that the statement was a prior inconsistent statement and could be read to the jury in its entirety. The trial court agreed, and allowed the investigator to read the statement to the jury. The contention that the trial court erred because a proper foundation was not laid for admission of Burnam’s out-of-court written statement was waived by Dean’s failure to raise that objection below.

(b) Dean’s contention that the trial court erred by allowing the state to introduce Burnam’s out-of-court written statement because the statement was admitted after the trial court had released Burnam from his subpoena presents no basis for reversal.

A prior inconsistent statement of a witness should not be admitted unless the witness is available at that time for cross-examination. Here, after Burnam testified and was excused, the prosecutor called a law enforcement officer to the witness stand, and Burnam’s prior written statement was read to the jury by this officer, to whom Burnam had given the statement. During Burnam’s testimony, the prosecutor as well as defense counsel had an opportunity to examine Burnam about the statement which Burnam admitted to having written, and they examined Burnam extensively, using the written statement at issue.

Therefore, “it is highly probable that the error in admitting the [out-of-court written statement] did not contribute to the verdict and was, therefore, harmless[.]”

Burnam had “ample opportunity to explain or deny the prior contradictory statements,” and he did so.

With respect to the truth of the prior statement, the jury ha[d] the opportunity to observe [Burnam] as he . . . repudiate [d] or var[ied] his former statement, and as he [was] cross-examined. Thus, the jury [could] determine whether to believe the present testimony, the prior statement — or neither.

2. Dean contends that the trial court erred by not merging the aggravated assault offense into the armed robbery offense for sentencing purposes. We agree.

In the indictment, the state alleged that Dean committed aggravated assault in that he did “assault [N. J.] by pointing a .38 Taurus revolver at him, a firearm, which is a deadly weapon.” In the indictment, the state also alleged that Dean committed armed robbery in that he did “with intent to commit theft, take U. S. Currency and a red Verizon cell phone, property of [N. J.], from the person and immediate presence of [N. J.] by use of a .38 Taurus revolver, a firearm, which is an offensive weapon.”

[The Supreme Court of Georgia has] held that there is no element of aggravated assault with a deadly weapon that is not contained in armed robbery. [] And because aggravated assault with a deadly weapon does not require proof of any element that armed robbery does not, convictions for both offenses will merge — but only if the crimes are part of the same act or transaction.

The state argues that in this case, the crimes of armed robbery and aggravated assault did not involve the same conduct and, therefore, did not merge. The state asserts that the evidence was sufficient for a jury to find that the armed robbery was completed after Dean pointed the revolver at N. J. and took N. J.’s cell phone and keys, and that the facts supporting the aggravated assault occurred when, after taking N. J.’s money and cell phone, Dean continued to point the revolver at Jones and “made the additional statement about taking the keys to the truck.”

But the evidence showed that the armed robbery began when Dean pointed the revolver at N. J. for the purpose of robbing N. J., during which time the aggravated assault also occurred; and the armed robbery concluded immediately thereafter when Dean took N. J.’s money and cell phone. There was no evidence of a break in Dean’s pointing the revolver at N. J. between the time Dean obtained the money and cell phone and the time Dean asked whether he should also take the keys to the vehicle. The evidence showed one act or transaction. Accordingly, the aggravated assault was included in the armed robbery, Dean’s conviction and sentence for aggravated assault are vacated, and the case is remanded to the trial court for resentencing.

3. Dean moved this court to remand the case to the trial court so that he may assert claims of ineffective assistance of trial counsel. We grant Dean’s motion.

After Dean’s conviction, trial counsel timely filed a notice of appeal to this court. More than a year later, trial counsel withdrew as counsel of record. New appellate counsel filed an entry of appearance less than three months after trial counsel had withdrawn as counsel of record, which was approximately one-and-one-half months before the case was docketed with this court. “Thus, there was no opportunity to assert a claim of ineffective assistance of trial counsel at the trial level, and we remand the case to the trial court [also] for appropriate findings concerning the issue of ineffective assistance of trial counsel.”

Judgment affirmed in part and vacated in part, and ease remanded.

Ellington, P. J., and Branch, J., concur.

Decided February 27, 2014

Reconsideration denied April 9, 2014.

Brandon A. Bullard, for appellant.

K. David Cooke, Jr., District Attorney, Shelley T. Milton, Garrison A. Wood, Assistant District Attorneys, for appellee.

       OCGA § 16-8-41.

       OCGA § 16-5-21.

       OCGA § 16-11-106.

       Dean and Burnam were jointly indicted, but Burnam’s case was severed from Dean’s for trial.

       See Land v. Burkhalter, 283 Ga. 54 (1) (656 SE2d 834) (2008); Reynolds v. State, 230 Ga. App. 458 (1) (496 SE2d 474) (1998); Norman v. State, 197 Ga. App. 333, 334 (2) (398 SE2d 395) (1990) (“If counsel desires to preserve an objection upon a specific point for appeal, the objection must be made at trial upon that specific ground. An objection on a specific ground at trial waives any objection to that evidence on other grounds on appeal.”) (citations and punctuation omitted).

       See Brinson v. State, 268 Ga. 227, 227-228 (2) (486 SE2d 830) (1997).

       Id. at 228 (2) (citation omitted).

       Id.

       Id.

        Long v. State, 287 Ga. 886, 889 (2) (700 SE2d 399) (2010) (finding that the “deadly weapon” requirement of aggravated assault with a deadly weapon is the equivalent of the “offensive weapon” requirement of armed robbery, and relying on Lucky v. State, 286 Ga. 478, 481 (689 SE2d 825) (2010), which established that the assault requirement of aggravated assault is the equivalent of the “use of an offensive weapon” requirement of armed robbery).

        Bradley v. State, 292 Ga. 607, 610 (1) (c) (740 SE2d 100) (2013) (citation and punctuation omitted).

         See id.; Thomas v. State, 289 Ga. 877, 880-881 (3) (717 SE2d 187) (2011).

       See Sears v. State, 292 Ga. 64, 73-74 (6), n. 7 (734 SE2d 345) (2012).

       See Bradley, supra; Sears, supra; Thomas, supra.

       See Sears, supra at 73-74 (6); Thomas, supra at 880 (3).

        Peterson v. State, 274 Ga. 165, 171-172 (6) (549 SE2d 387) (2001) (citation omitted).


author: ANDREWS, Presiding Judge.

text:
    A13A2175.
    BRANTLEY et al. v. DUBOIS et al.
    (755 SE2d 351)
   ANDREWS, Presiding Judge.

In the underlying medical malpractice action, the trial court denied defendants’ renewed motion to dismiss or, in the alternative, motion for summary judgment, alleging plaintiffs’ failure to comply with the affidavit requirement of OCGA §§ 9-11-9.1 and 24-7-702 (formerly OCGA § 24-9-67.1). The trial court issued a certificate of immediate review, and this Court granted defendants’ application for interlocutory appeal. For the reasons set forth below, we conclude that the affidavit at issue failed to meet the requirements of OCGA §§ 9-11-9.1 and 24-7-702, and reverse.

The record shows that David Dubois and his wife, Janet, filed a medical malpractice complaint against Damon Brantley, M.D., a general surgeon, and Glynn-Brunswick Memorial Hospital Authority d/b/a Southeast Georgia Health System (collectively, the “Appellants”) to which they attached the affidavit of Dr. Steven E. Swartz, also a general surgeon. The Duboises (collectively, the “Appellees”) alleged that Dr. Brantley deviated from the applicable standard of care by injuring Mr. Dubois’s pancreas while performing a laparoscopic umbilical hernia repair with mesh. Dr. Swartz concurred and further opined that the result was traumatic injury to Mr. Dubois’s pancreas causing pancreatitis and other illnesses. Dr. Brantley and the defendant hospital answered and moved to dismiss asserting that Dubois’s affidavit failed to comply with the above-referenced statutes.

The trial court did not rule on the motion at that time; however, the Appellees amended their complaint and provided a second affidavit from Dr. Swartz. In his amended affidavit, Dr. Swartz testified that Dr. Brantley “caused” the injury to Mr. Dubois’s pancreas “by striking the pancreas with the trocar utilized during the course of the umbilical hernia repair.” Dr. Swartz further testified that his opinion was “the product of reliable principles and methods developed as a result of my actual professional knowledge, education and experience in general surgery medicine.”

The Appellees deposed Dr. Swartz on December 12, 2012. Dr. Swartz testified that, although he practices in the field of general surgery, he performed “maybe one” laparoscopic umbilical hernia repair in the five-year period before Mr. Dubois’s procedure on March 31, 2011. Dr. Swartz explained that “I don’t like that operation . . . [b] ecause I think I can do a better job through just a small... incision with just as quick a recovery time and I get a better repair that’s less likely to recur.” Dr. Swartz qualified his earlier testimony, however, adding that it was possible that he had not performed any laparoscopic umbilical hernia repair in the five-year period before Mr. Dubois’s procedure and that he did not assist in any such procedure. Given the foregoing, the Appellants filed a renewed motion to dismiss or, in the alternative, motion for summary judgment.

The trial court denied the Appellants’ motion. Our grant of Appellants’ application for interlocutory appeal followed, and the Appellants now appeal, contending that the trial court erred in denying their renewed motion to dismiss or, in the alternative, for summary judgment, arguing that the Appellees’ OCGA § 9-11-9.1 expert affiant, Dr. Swartz, had not performed the procedure at issue with sufficient frequency to render him qualified to testify as an expert pursuant to the requirements of OCGA § 24-7-702 (c) (2) (A). We agree and reverse.

Our review of a motion to dismiss or one for summary judgment is de novo. See Nat. Bldg. Maintenance Specialists v. Hayes, 288 Ga. App. 25 (653 SE2d 772) (2007) and McRae v. Hogan, 317 Ga. App. 813, 815 (1) (732 SE2d 853) (2012), respectively.

OCGA § 24-7-702 (c) provides that even if an expert is “otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue,” the opinion of that expert will be admissible in a medical malpractice action only if the expert

(c) (2). . . had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:
(A) The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue [.]

And, as our Supreme Court added in Nathans v. Diamond, 282 Ga. 804 (654 SE2d 121) (2007):

[E]ven if the expert is generally qualified as to the acceptable standard of conduct of the medical professional in question, the expert cannot testify unless he also satisfies the specific requirements of subsection (c) (2). . . . [I]n enacting OCGA § 24-[7-702], the General Assembly intended to require a plaintiff to obtain an expert who has significant familiarity with the area of practice in which the expert opinion is to be given.

(Emphasis supplied.) Nathans, supra, 282 Ga. at 806 (1). “We review a trial court’s decision concerning an expert’s qualifications under OCGA § 24-[7-702 formerly OCGA § 24-9-67.1] for an abuse of discretion.” (Citation omitted.) Hope v. Kranc, 304 Ga. App. 367, 370 (1) (696 SE2d 128) (2010).

Construed in Mr. Dubois’s favor, the evidence shows that Dr. Swartz is a general surgeon with extensive experience in performing open umbilical hernia repairs and that he was familiar with the standard of care applicable to the repair at issue. Notably, however, Dr. Swartz deposed that he had performed “maybe one” and perhaps “no” laparoscopic umbilical hernia repair in the three- to five-year period before Mr. Dubois’s procedure. Dr. Swartz explained that he disliked the procedure and indicated that he had not assisted in any such procedure.

Under OCGA § 24-7-702 (e), “[a]n affiant must meet the requirements of this Code section in order to be deemed qualified to testify as an expert by means of the affidavit required under Code Section 9-11-9.1.” “The penalty for failure to supply a proper affidavit... is dismissal.” Akers v. Elsey, 294 Ga. App. 359, 361 (1) (670 SE2d 142) (2008). Here, there is only speculation that Dr. Swartz performed the procedure in issue in the three to five years prior to the surgery. See id. at 362 (2) (trial court did not abuse its discretion in granting a motion to dismiss where one of the expert OCGA § 9-11-9.1 affiants as to the standard of care in a laparoscopic Nissen fundoplication deposed only that he had performed “many” such open and laparoscopic procedures). Even if we accepted that Dr. Swartz performed one laparoscopic umbilical hernia repair in the requisite time period, there otherwise is no showing demonstrating a significant familiarity with the same, particularly given the fact that Dr. Swartz had never assisted in such a procedure and his evident preference for the open surgical approach to repairing an umbilical hernia. It follows that the trial court abused its discretion when it found that the Dr. Swartz affidavit was sufficient under OCGA §§ 9-11-9.1 and 24-7-702 (c) and denied Appellants’ renewed motion to dismiss or, in the alternative, motion for summaryjudgment. Because the Duboises’OCGA § 9-11-9.1 expert did not meet the requirements of OCGA § 24-7-702 (c), the trial court erred in ruling that Dr. Swartz was qualified to give an opinion and also erred in denying the Appellants’ motion.

Decided March 21, 2014

Reconsideration denied April 9, 2014

Hall Booth Smith, N. Daniel Lovein, William S. Mann, Charles A. Dorminy, for appellants.

Savage & Turner, Brent J. Savage, Kathryn H. Pinckney, for appellees.

Judgment reversed.

Dillard and McMillian, JJ., concur.

       “Nissen fundoplication is a procedure in which the fundus, or upper part, of the stomach is wrapped around part of the esophagus and stitched in place, reinforcing the closing function of the lower esophageal sphincter. Thus, whenever the stomach contracts, it also closes off the esophagus instead of squeezing stomach acids into it.” Akers at 360, n. 1.