author: Barnes, Presiding Judge.

text:
    A11A1441.
    DECAPITE v. THE STATE.
    (720 SE2d 297)
   Barnes, Presiding Judge.

Following the denial of his motion for new trial, Steven Joseph Decapite appeals his convictions by a Houston County jury for armed robbery, four counts of burglary, four counts of theft by taking, and criminal attempt to commit burglary. Following our review, we affirm.

Viewed favorably to the jury’s verdict, the evidence shows that between September 6, 2007 and October 7, 2007, there were attempted break-ins or robberies at four local businesses. During the first crime on September 6, shortly before midnight, a man whose face was covered with a bandana entered the Extended Stay Hotel, assaulted the night auditor with a stun gun, and took $200 from the cash drawer. A second man accompanied the masked man. The auditor could not identify either man.

On September 22, 2007, when the kitchen manager of Neighbor’s Bar and Grill came to work she discovered that the alarm had been disarmed, the office door kicked in, and the safe, which contained between $3,000 to $4,000, had been taken from the office. One week later, at this same restaurant, the alarm was triggered. When police responded they discovered that the office door had been kicked in and that there were signs of pry marks on the cash drawer and the exterior door leading from the back of the restaurant to an alley. The new safe, which was connected to a shelf by a steel cable, was hanging from the shelf.

On September 30, 2007 at around 5:00 a.m., police responded to the burglary alarm at Bulldawg Café. There was damage to the deadbolt on the rear door, but the door was “still secure, [although] slightly ajar.” The officer investigating the scene reported the incident to a supervisor, who also responded and checked for a break-in. The scene was not processed. Approximately 30 minutes later, police responded to a report of a burglary at Shenanigan’s Pub. The alarm had been triggered on the rear door, but the door was still secure. When the; manager arrived and opened the door, he discovered that the safe was missing from his office. The safe contained cash and checks valued at approximately $1,000.

On October 5, 2007, after closing the restaurant, the kitchen manager at Bulldawg Café was smoking marijuana with Chris Damore, a former employee, when he accidentally triggered the burglar alarm. When police responded, the men were arrested. Both men later cooperated with police and identified several people, including Decapite, as being involved with the recent crimes at the hotel and restaurants. Damore testified that he went to the restaurant to distract the manager so that Decapite and his accomplice, Jason White, could enter the restaurant. He further testified that the two men hid in the restaurant until the police left, and that he called Decapite from jail and gave him the code to the restaurant’s alarm. Damore testified that the men said they did not take anything from the restaurant, but White testified that he and Decapite took the safe and a “Bulldawg” statue, and had “stiffed” Damore.

On October 6, 2007, when police executed a search warrant at Decapite’s trailer home that he shared with White and two women — Jennifer Singletary and Jessica Arnold — they recovered the safe from Bulldawg Café, a second safe, a cash register drawer, and several bank bags. Decapite, White, and the two women were not present when the trailer was searched, and left town again when they discovered that police had searched their home. Decapite was later arrested in Virginia, and he, White, the two women, and Damore were indicted on assorted charges related to the burglaries.

Decapite’s four co-defendants all pled guilty to their respective charges, and testified against him at the trial. Decapite was found guilty of armed robbery, four counts of burglary, four counts of theft by taking, and one count of criminal attempt to commit burglary.

On appeal, Decapite contends that his trial counsel was ineffective on several grounds. To prevail on any of these claims, he must show that his trial counsel performed deficiently and that, but for that unprofessional performance, there is a reasonable probability that the outcome of the proceeding would have been different. See Strickland v. Washington, 466 U. S. 668, 687, 694 (104 SC 2052, 80 LE2d 674) (1984); Long v. State, 287 Ga. 886, 891 (700 SE2d 399) (2010).

1. Decapite first contends that trial counsel was ineffective in failing to object to the trial court’s preliminary jury instructions. He maintains that the trial court failed to mention “critical concepts of burden of proof, reasonable doubt, and the presumption of innocence” in its pretrial instructions and also erroneously instructed the jury to “keep an open mind,” which he contends, negated his presumption of innocence.

At the motion for new trial hearing, trial counsel testified that in retrospect “as I sit here today . . . [the preliminary jury instructions were] probably objectionable,” and also that he could not attribute his failure to object to the instructions to trial strategy. However,

[tjhere is no requirement that a trial court charge on substantive matters such as reasonable doubt and presumption of innocence prior to the presentation of evidence. . . . [W]e commendf ] educating lay persons as to trial procedures by a pre-evidentiary charge but no requirement [is] imposed that an instruction of this nature [is] mandatory. We only caution[ ] that if a charge is given it should be correct and not prejudicial.

Clark v. State, 141 Ga. App. 257, 257-258 (1) (233 SE2d 246) (1977).

OCGA § 5-5-24 (b) requires only that the trial court instruct the jury in the law at the close of evidence. See Little v. State, 230 Ga. App. 803, 805 (2) (498 SE2d 284) (1998). In doing so, it is required

to instruct comprehensively on the law applicable to the case, i.e., those charges which are relevant and necessary to weigh the evidence and enable the jury to discharge its duty, OCGA § 15-12-139, and which would constitute error under OCGA § 5-5-24 (c) if not given.

Griffith v. State, 264 Ga. 326, 327 (2) (444 SE2d 794) (1994).

Here, in its closing instruction to the jury, the trial court properly instructed the jury on the presumption of innocence, reasonable doubt, the burden of proof, and that the burden “never shifts to the defendant to introduce evidence or prove innocence.” Thus, as the trial court was not required to give preliminary instructions, it did not prejudice Decapite’s defense in not preliminarily instructing the jury on burden of proof, presumption of innocence, and reasonable doubt. The doctrines were presented in the trial court’s charge at the close of evidence, as required by OCGA § 5-5-24 (b). Hence, Decapite’s trial counsel’s failure to object was not ineffective assistance of counsel.

Likewise, we see no error in the trial court’s instruction to the jury to “view the evidence with an open mind and reach no final conclusions until the trial is over.” Such an instruction, does not, as Decapite argues, divest him of the presumption of innocence.

2. Decapite also contends that the trial court erred in admitting evidence of “extrinsic crimes” without a hearing pursuant to Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991) and Uniform Superior Court Rule 31.3 (B), and that trial counsel was ineffective for failing to object to its admission. Decapite’s allegation, however, is without merit. No hearing was required in this case because the alleged similar crimes evidence he complains about were nothing more than debit cards, credit cards, and identification cards that were retrieved from the safes found at his home. The evidence was introduced to show a connection between Decapite and the stolen safes, and not to show independent offenses so as to warrant a hearing under Williams. Although Decapite argues that the State failed to show that the cards were actually in the safes, this argument goes to the weight of the evidence, not its admissibility. See Scott v. State, 248 Ga. App. 542, 544-545 (1) (b) (545 SE2d 709) (2001).

Accordingly, because the trial court did not err by allowing the State to introduce the credit cards, debit cards, and other identification alleged to have been contained in the safe without a Williams hearing, Decapite’s trial counsel did not perform deficiently by failing to make a meritless objection to the admission of this evidence. See Winfrey v. State, 286 Ga. App. 718, 724 (6) (a) (650 SE2d 262) (2007) (failure to make a meritless or futile motion does not provide a basis for finding ineffective assistance of counsel).

3. Decapite also contends that trial counsel was ineffective for failing to object to the introduction and publication to the jury of the search warrant and affidavit because the statements contained in the affidavit were inadmissible hearsay. He further contends that permitting the document to be published to the jury and sent out with them during deliberations violated the continuing witness rule.

In Georgia, the continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.

Tanner v. State, 259 Ga. App. 94, 98 (3) (576 SE2d 71) (2003).

Pretermitting whether trial counsel’s performance was deficient for failing to object to the admission and publication of the search warrant and affidavit, Decapite must also show that counsel’s deficient performance so prejudiced him that there is a reasonable probability the outcome of trial would have been different but for counsel’s error. Although “[his] burden is to show only ‘a reasonable probability’ of a different outcome, not that a different outcome would have been certain or even ‘more likely than not,’ ” Schofield v. Gulley, 279 Ga. 413, 416 (I) (A) (614 SE2d 740) (2005), Decapite has not carried this burden because the evidence of his guilt is overwhelming. Razor v. State, 259 Ga. App. 196, 200-201 (5) (d) (576 SE2d 604) (2003). See also Kent v. State, 245 Ga. App. 531, 533 (3) (538 SE2d 185) (2000) (allowing victim’s statement to go out with jury violated the continuing witness rule, but the error was harmless since the evidence it contained was brought out during trial and evidence of guilt was overwhelming).

Here, the confidential informant whose statements were included in the search warrant was Damore, who also testified at trial, was subject to extensive cross-examination, and whose testimony was cumulative of the testimony given by the other co-defendants.

[I]n light of the strength of the evidence that was properly presented to the jury, we conclude that [Decapite] has not shown that a reasonable probability exists that, but for the jury having [the search warrant and affidavit] during its deliberations, the outcome of his trial would have been different.

Parnell v. State, 280 Ga. App. 665, 672 (2) (d) (634 SE2d 763) (2006).

4. Decapite contends that his trial counsel was ineffective in failing to object to testimony about the videotaped statement co-defendant Jessica Arnold gave police after she was arrested. During the investigating detective’s testimony, the State played several segments of Arnold’s statement. Decapite argues that the veracity of Arnold’s testimony was never at issue, and the video statements, which were consistent with her trial testimony, were hearsay and also improperly bolstered the credibility of her trial testimony.

A witness’s prior consistent statement is admissible at trial “only where (1) the veracity of a witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination.” (Citations and punctuation omitted.) Baugh v. State, 276 Ga. 736, 738 (2) (585 SE2d 616) (2003). A witness’s veracity is “placed in issue so as to permit the introduction of a prior consistent statement only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination.” Id.

Pretermitting whether trial counsel erred by not challenging this testimony, as noted earlier, in claims of ineffectiveness of trial counsel, it is necessary to show not only error but prejudice. If Decapite fails to meet his burden of proving either prong of the Strickland test, this Court need not examine the other prong. Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

Here, even if the statement was inadmissible, Decapite cannot show that its admission was harmful or requires reversal. Significant other evidence — including the testimony of three other co-defendants, and the physical evidence belonging to the restaurants which was located at his trailer — implicated him in the crimes. Thus, even if his trial counsel failed to preserve a claim that Arnold’s testimony was erroneously bolstered by prior hearsay statements, Decapite failed to establish that, but for this alleged deficient performance, there was a reasonable probability that the outcome of the trial would have been different.

Decided November 22, 2011

Hogue & Hogue, Laura D. Hogue, Michael K. McIntyre, for appellant.

George H. Hartwig III, District Attorney, Venita S. McCoy, Daryl E. Manns, Assistant District Attorneys, for appellee.

Judgment affirmed.

Adams and Blackwell, JJ., concur.


source: Caselaw Access Project

author: Ellington, Judge.

license: Public Domain

text:
    A11A1509.
    THE STATE v. SANCHEZ.
    (720 SE2d 304)
   Ellington, Judge.

The State appeals from an order of the Superior Court of Whitfield County modifying Sergio Sanchez’ misdemeanor sentence. The State contends that the modification constitutes an illegal judgment and is, therefore, void. Specifically, the State argues that the superior court was without jurisdiction to modify a sentence outside the term of court in which it was entered and which had been served in its entirety. We agree and vacate the court’s order.

Sanchez pleaded guilty to two misdemeanor state offenses and, on September 16, 2008, the superior court sentenced Sanchez to consecutive, 12-month periods in the state penal system, the sentences to be served on probation. Because the court’s sentencing order remanded Sanchez into the custody of the State Department of Corrections, the sentence was imposed pursuant to OCGA § 17-10-3 (a) (2). On February 23, 2011, Sanchez filed a motion to modify his sentence. The motion was filed outside the term of court in which it was entered and five months after the sentence had been served. Following a hearing, the superior court entered an order on March 22, 2011, modifying Sanchez’ sentences to consecutive 11-month periods. It is from this order that the State appeals.

Decided November 22, 2011.

Kermit N. McManus, District Attorney, Benjamin B. Kenemer, Assistant District Attorney, for appellant.

Campano & Sperling, Jean C. Sperling-Cavallero, Jennifer K. Mason, for appellee.

“[A] trial court loses power to modify, suspend or vacate its judgments after the term at which they are rendered.” (Citations omitted.) Latham v. State, 225 Ga. App. 147 (483 SE2d 322) (1997). “That is the general rule for both felony and misdemeanor convictions, but the rule is different for misdemeanor sentences imposed under OCGA § 17-10-3 (a) (1).” Patel v. State, 247 Ga. App. 815 (1) (545 SE2d 383) (2001). When a court sentences a misdemeanant to serve his sentence in county custody pursuant to OCGA § 17-10-3 (a) (1), the sentencing court retains “jurisdiction to amend, modify, alter, suspend, or probate” that sentence “at any time[.]” OCGA § 17-10-3 (b). Because the superior court did not direct that Sanchez be remanded into county custody, it did not retain jurisdiction to modify his sentence at any time, as Sanchez argues. Id. Because Sanchez’ motion to modify was filed outside the term of court in which it was entered, and no exception to that rule applies, the trial court lacked authority to modify it. Cf. Patel v. State, 247 Ga. App. at 815 (1). Therefore, the superior court’s order modifying Sanchez’ sentence is a nullity and must be vacated.

Judgment vacated.

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

       “Notwithstanding the provisions of OCGA § 5-7-1, the State may appeal directly an illegal judgment.” (Citations and punctuation omitted.) State v. Mohamed, 203 Ga. App. 21 (1) (416 SE2d 358) (1992).

       Sanchez pleaded guilty to criminal trespass, OCGA § 16-7-21, and simple assault, OCGA § 16-5-20.

       That Code section provides that, except as otherwise provided by law, misdemeanors may be punished, inter alia, “[b]y confinement under the jurisdiction of the Board of Corrections in a state probation detention center or diversion center pursuant to Code Sections 42-8-35.4 and 42-8-35.5, for a determinate term of months which shall not exceed a total term of 12 months!.]”

       See OCGA § 15-6-3 (12) (B) (Whitfield County terms of court begin on the second Monday in January and July).


text:
    A11A1828.
    JORDAN v. BENNETT et al.
    (720 SE2d 301)
   Ellington, Judge.

We granted an interlocutory appeal to Jacob Jordan to consider whether the Superior Court of Glynn County erred in denying his motion for summary judgment in this premises liability suit brought by Patsy Jo Bennett, a social guest who was injured during a party at Jordan’s home. Because there is no evidence that Jordan breached his duty of care to Bennett, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.

(Citations, punctuation and footnotes omitted.) Jones v. Barrow, 304 Ga. App. 337 (696 SE2d 363) (2010).

So viewed, the record reveals the following relevant facts. On September 20, 2008, Bennett attended a party at Jordan’s home to watch a football game. She had been to Jordan’s home three times before. That evening, after consuming five beers and two “lemon drop” cocktails, she went out onto a balcony off the kitchen to smoke a cigarette and to drink another beer with her friend, Paulette Williams, who was also Jordan’s roommate. They sat in chairs facing the balcony railing and the back yard. After being on the balcony for about 15 minutes, Bennett walked to the balcony’s edge to toss her cigarette into the back yard. As she tossed the cigarette, she turned to talk to Williams, and then she fell over the railings of the balcony and onto the concrete sidewalk 16 feet below, where she sustained serious injuries.

Bennett does not know what caused her to fall, though she speculates that she lost her balance. She deposed that she was unaware that she was on an elevated balcony; rather, she believed that she was on a ground-level patio. However, in a recorded statement given to an insurance adjuster, Bennett, during an inquiry into what caused her fall, stated: “I just remember kinda I looked over and I said ‘God this deck is really high up.’ That kinda freaked me out a little bit.” In her recorded statement, Bennett said that Jordan had done nothing to cause the “freak accident,” but that the fault was with the balcony’s railing, which she believed was not “up to code.”

The record shows that, although Jordan’s exterior lights were off when Bennett fell, the balcony was illuminated by a light fixture in the kitchen. Both Williams and Bennett could see the 27.5 inch-high railing surrounding the balcony. Williams, perplexed that anyone would mistake the balcony for a patio, also deposed that, while on the balcony, a person is at the same “height of the trees[. Y]ou can tell they’re not ground level.” She explained that “[y]ou can’t see the ground when you’re sitting on the [balcony]. The only thing you have is the [balcony] and then there’s nothing else to see, except the trunks of the trees[.]”

Neither Jordan nor Williams had experienced any prior problems with the balcony, such as any other guest falling over the railing or anyone complaining about the height of the railing. When Jordan bought the house, no one advised him that the railing was not up to code, but he recognized that the railings were lower than those in new homes and he usually pointed that fact out to his guests. However, he did not consider the height of the railings dangerous, and he would occasionally sit on them.

1. Jordan contends that the trial court erred in denying his motion for summary judgment and in concluding that he had a duty to warn Bennett of any danger associated with the low railings. We agree.

The parties do not dispute that Bennett’s status for purposes of this suit was that of a licensee. Further, the condition of the balcony, including the low railings that separate the balcony floor from the 16-foot drop to the ground below, constitutes a static condition, not a hidden peril, pitfall, or mantrap. Jordan, as the owner of “the premises[,] is liable to a licensee only for willful or wanton injury.” OCGA § 51-3-2 (b). Thus, in order to survive Jordan’s motion for summary judgment, Bennett, as a licensee,

Decided November 22, 2011.

Martenson, Hasbrouck & Simon, Edward A. Miller, Yakov D. Shteyman, for appellant.

must show that [Jordan] wilfully [or] wantonly injured [her]. As it is said: An owner owes to a licensee no duty as to the condition of the premises save that he should not knowingly let [her] run upon a hidden peril or wilfully cause [her] harm. To the licensee, as to the trespasser, no duty arises of keeping the usual condition of the premises up to any given standard of safety, except that they must not contain pitfalls, man-traps, and things of that character.

(Citations and punctuation omitted.) Francis v. Haygood Contracting, 199 Ga. App. 74, 75 (1) (404 SE2d 136) (1991).

Although a landowner owes a duty to use ordinary care to protect anticipated licensees from dangerous activities being conducted on the premises or from hidden perils, where the alleged negligence arises from a dangerous static condition on the premises, the duty remains not to injure the licensee wilfully or wantonly

(Citations omitted; emphasis supplied.) Rice v. Elliott, 256 Ga. App. 87 (567 SE2d 721) (2002).

Because there is no evidence in the instant case that Jordan wilfully or wantonly injured Bennett or that he knowingly exposed her to a dangerous activity, hidden peril, pitfall, or mantrap, there is no evidence that Jordan breached his duty of care to Bennett such that he has any liability for her injuries. Consequently, the trial court erred in denying his motion for summary judgment. See footnote 2, supra.

2. Given our holding in Division 1, Jordan’s remaining claim of error is moot.

Judgment reversed.

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

Westmoreland, Patterson, Moseley & Hinson, Thomas H. Hinson II, for appellees.

       Bennett’s husband also sued Jordan for loss of consortium.

       The evidence in this case shows that both Bennett and Jordan were aware of the height of the railings. Thus, assuming, without deciding, that Bennett correctly asserts that Jordan was negligent per se in failing to comply with the building code, this does not impose liability where the owner lacks superior knowledge of the hazard. See Yasinsac v. Colonial Oil Properties, 246 Ga. App. 484, 486 (3) (541 SE2d 109) (2000) (“Even if [plaintiff] could show . . . negligence per se as a violation of the building code, she would be precluded from recovering because of the equal knowledge rule.”) (footnote omitted).

       See Barrett v. Ga. Dept. of Transp., 304 Ga. App. 667, 671 (2) (697 SE2d 217) (2010) (plaintiffs car fell off a 15-foot drop-off partly obscured by trees, landing upside down in a creek bed at the bottom of a culvert; drop-off was a static condition); Trulove v. Jones, 271 Ga. App. 681 (1) (610 SE2d 649) (2005) (a pool deck that had obviously not been completed in that the handrails had not been installed was a static condition); Ga. Dept. of Transp. v. Thompson, 270 Ga. App. 265, 271 (2) (a) (606 SE2d 323) (2004) (a trash container sitting atop a concrete storm drain was a static condition); Aldredge v. Symbas, 248 Ga. App. 578, 581 (547 SE2d 295) (2001) (drainage ditch obscured by shrubbery was a static condition); Trammell v. Baird, 262 Ga. 124, 125-126 (413 SE2d 445) (1992) (plaintiff riding a motorcycle collided with covered cable gate on an unpaved road; gate was a static condition); Goodwin v. Mullins, 122 Ga. App. 84, 85-86 (176 SE2d 551) (1970) (plaintiff mistook the door to the basement for the door to the bathroom, opened it, stepped in without realizing her error, and consequently fell; doorway construction was not a mantrap, but a static condition).

       “The doctrine of mantrap or pitfall is rested upon the theory that the owner is expecting a trespasser or a licensee and has prepared the premises to do him injury.” (Citations and punctuation omitted.) Hawkins v. Brown, 228 Ga. App. 311, 313 (2) (491 SE2d 423) (1997). It is a “contrivance so dangerous in character as to imply a disregard of consequences or a willingness to inflict injury.” (Citations and punctuation omitted.) Id. See, e.g., McKinsey v.

        Wade, 136 Ga. App. 109 (220 SE2d 30) (1975) (vending machine booby-trapped with dynamite to discourage theft). Further, a peril is not “hidden” simply because a person fails to see or to perceive what is otherwise apparent. Ellis v. Hadnott, 282 Ga. App. 584, 586 (1) (639 SE2d 559) (2006) (plaintiff tripped over a broom handle that had fallen across stairway).


author: McFadden, Judge.

text:
    A11A1295.
    A11A1296.
    JEFFERSON v. THE STATE. EDWARDS v. THE STATE.
    (720 SE2d 184)
   McFadden, Judge.

In separate appeals, Tajuan Rashad Jefferson and Omar J. Edwards challenge their convictions for three counts of armed robbery, three counts of aggravated assault, three counts of false imprisonment, and six counts of possession of a firearm in the commission of a crime. They were tried jointly, and we have consolidated their appeals for disposition. Regarding both cases, we find that the evidence was sufficient to support the convictions, and that, although the trial court erred in ruling that the expert testimony of a state’s witness satisfied the requirements of Harper v. State, 249 Ga. 519 (292 SE2d 389) (1982), the error did not require reversal. Regarding Case No. A11A1295, we find that the trial court did not err in restricting Jefferson’s cross-examination of a police officer or in denying his motion to sever his trial. Regarding Case No. A11A1296, we find that testimony from the state’s expert witness did not improperly invade the province of the jury, that the court did not err in denying Edwards’ motion for mistrial on the ground that an improper comment was made about his exercise of his rights to remain silent and to counsel, and that the court did not err in denying Edwards’ motion to suppress the results of a search of his car.

Accordingly, we affirm in both cases.

1. When this court reviews the sufficiency of evidence, “the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Dean v. State, 273 Ga. 806, 806-807 (1) (546 SE2d 499) (2001). We review the evidence in the light most favorable to the verdict, giving deference to the jury’s determination as to the proper weight and credibility to be given. Id. at 807 (1).

So construed, the evidence shows that the three victims were at the home of one of the victims when three men, two of them later identified as Jefferson and Edwards, forced their way into the home. They bound the victims with duct tape, searched the apartment, and beat one of the victims with a pistol. The men took money, a video game console, and a television and then left.

During the ensuing police investigation, the victim’s neighbor told the police that she noticed an unusual yellow and black Dodge Charger in the neighborhood that day. One of the officers recalled that he had stopped such a vehicle the night before and had arrested Edwards for driving on a suspended license. Although Edwards had been taken to jail, the officer had allowed Jefferson to drive the car away because he had a valid driver’s license. A third man had been in the car with Jefferson and Edwards.

As a result of this evidence, the officers secured a search warrant to search Edwards’ car and home. None of the stolen items was found, but a roll of duct tape was seized from Edwards’ car.

The victims were shown photographic lineups and identified Jefferson and Edwards as two of the men who broke in the apartment and assaulted and robbed them. The victims also identified Jefferson and Edwards at trial. Although Edwards testified in his own behalf denying his participation in the crimes, Jefferson did not.

During the trial, over the objection of both Jefferson and Edwards, the trial court permitted a witness from the Georgia Bureau of Investigation’s crime lab to testify as an expert in fracture match analysis. The witness testified that one of the pieces of duct tape found at the scene was torn from the roll of duct tape found in Edwards’ car.

This evidence was sufficient to sustain the appellants’ convictions within the standards established in Jackson v. Virginia, supra, 443 U. S. 307.

2. Jefferson and Edwards contend that the trial court erred by allowing the state to introduce expert opinion testimony, based on the theory of fracture match analysis, that a piece of duct tape found at the scene of the crime came from the roll of duct tape found in Edwards’ car. They assert that the state did not demonstrate that fracture match analysis has reached a verifiable state of scientific certainty as required by Harper, supra, 249 Ga. 519. As detailed below, we find that the court erred in ruling that the fracture match analysis evidence met the Harper standard, but we find that the error was harmless because the majority of the expert’s testimony before the jury did not deal with scientific principles and thus was not subject to the Harper requirements.

(a) When this court reviews a trial court’s ruling on the admissibility of scientific evidence, the applicable standard of review requires that

we construe the evidence most favorably to uphold the findings and judgment, and we adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. When the evidence is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. With mixed questions of fact and law, the appellate court accepts the trial court’s findings on disputed facts and witness credibility unless clearly erroneous, but independently applies the legal principles to the facts.

(Citations and punctuation omitted.) State v. Tousley, 271 Ga. App. 874 (611 SE2d 139) (2005). In Georgia, a trial court’s findings of fact will not be deemed to be clearly erroneous if there is any evidence to support them. Roscoe v. State, 289 Ga. 325, 327 (687 SE2d 455) (2009). Cf. Anderson v. City of Bessemer City, 470 U. S. 564, 574 (III) (105 SC 1504, 84 LE2d 518) (1985) (under Federal Rule of Civil Procedure 52 (a), “a finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed”) (citation and punctuation omitted).

The trial court ruled that the testimony on fracture match analysis was admissible after determining that fracture match analysis was “based on procedures and techniques that have reached a scientific stage of verifiable certainty.” Before scientific evidence can be properly admitted, the proponent of the evidence must lay a proper foundation for its admission. Tousley, 271 Ga. App. at 877. The proponent must show “that (1) the general scientific principles and techniques involved are valid and capable of producing reliable results, and (2) the person performing the test substantially performed the scientific procedures in an acceptable manner.” (Citations and punctuation omitted.) Id. at 876 (1).

The state, however, failed to demonstrate that the fracture match analysis evidence was founded on valid scientific principles. “[E Ividence based on a scientific principle or technique is admissible only if the science underlying the evidence is a phenomenon that may be verified with such certainty that it is competent evidence in a court of law.” Parker v. State, 307 Ga. App. 61 (704 SE2d 438) (2010). The state was required to demonstrate to the court that

the procedure or technique in question has reached a scientific stage of verifiable certainty, or in the words of Professor Irving Younger, whether the procedure “rests upon the laws of nature.” The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions. The significant point is that the trial court makes this determination based on the evidence available to him rather than by simply calculating the consensus in the scientific community. Once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.

(Citations and punctuation omitted; emphasis supplied.) Harper, 249 Ga. at 525-526 (1).

The trial court here did not take judicial notice that fracture match analysis had reached a scientific stage of verifiable certainty, and there was very little evidence available to the court regarding the issue. No evidence of exhibits or treatises was presented to or cited by the court.

Likewise, no rationale of cases from either Georgia or other jurisdictions was presented or cited to the court to show that fracture match analysis satisfied the Harper test. The state did not identify at trial any cases in which claims for fracture match analysis were admitted, we have found no Georgia appellate cases admitting such testimony under Harper, and the cases identified by the state on appeal do not analyze whether fracture match analysis has reached a scientific stage of verifiable certainty. See Commonwealth v. Gomes, 944 NE2d 1007, 1015-1017 (4) (Mass. 2011) (admitting fracture match analysis under general acceptance in the scientific community standard rejected in Harper)-, State v. Zuniga, 357 SE2d 898, 911 (III) (N. C. 1987) (admitting fracture match evidence without addressing whether theory of fracture match analysis had reached scientific stage of verifiable certainty); see also Davis v. State, 2 S3d 952, 956 (Fla. 2008) (merely mentioning fracture match analysis); Grim v. State, 841 S2d 455, 458-459 (Fla. 2003) (same); State v. Dressner, 45 S3d 127, 134 (La. 2010) (same); State v. Smith, 988 S2d 861, 867 (La. Ct. App. 2008) (same); Commonwealth v. McCullum, 602 A2d 313, 315 (Pa. 1992) (same); State v. Jackson, 46 P3d 257, 262 (Wash. App. 2002) (same), aff'd, 76 P3d 217 (Wash. 2003). Instead, its expert’s testimony was the state’s only foundation evidence for fracture match analysis under the Harper test.

During voir dire the state’s expert witness testified that she is employed as a microanalyst in the Trace Evidence Section of the Georgia Bureau of Investigation’s Division of Forensic Sciences, she has a Bachelor of Science degree in chemistry, she completed training in fracture match analysis 11 to 12 years earlier, she has looked at hundreds of fracture matches, and she has testified as an expert 26 times (11 times in Georgia courts) about fracture match analysis. She testified that, to her knowledge, fracture match analysis evidence has been “accepted” in other cases in Georgia and elsewhere in the United States, but her testimony offered no insight into the rationale employed by any other courts in admitting the evidence. She also testified that, to her knowledge, other crime laboratories used fracture match analysis. But a technique’s general acceptance in the scientific community does not satisfy the Harper standard for admission. See Harper, 249 Ga. at 525-526 (1).

The expert witness’s testimony on voir dire may be summarized as follows: fracture match analysis is based on a theory that the molecular structure of material causes the material to display unique fractures when broken; a fracture match is determined by visually comparing two pieces of material; and if the pieces match, then the two pieces originally were part of a single item. The witness opined that a visual examination of fractures could produce definitive results akin to DNA testing.

Specifically, the state’s expert testified that as a microanalyst she was typically asked to

look at items to see if there was a transfer of materials. Usually what [she was] looking for is a transfer [of] paint or plastic. In some instances [she might] be asked to look at broken or fractured materials, things that are either broken, cut, torn, to see if the two of them could have at one time been a single object.

She described the scientific principle behind fracture match analysis as follows:

On the molecular level the items — materials are — the molecules in a material are arranged randomly. Even if you have a crystalline material, it will be arranged — the crystals within the material will be arranged randomly so that, when you fracture or break or tear apart those items, the fracture or break is going to be . . . random and so that one — there will — it would be a unique fracture. And so the — when you — if you were to effect the same type of break in another material, you’re not going to find exactly the same break.

She testified to the procedures she used to analyze the fractures:

Basically the thing that I would do is I would open up the — the package that it came in. I would look at the material that I’m looking at. In this particular case I was asked to look at some duct tape. I would first of all want to look at it and make sure that it is the same physical characteristics, that it’s the same color, it’s the same shape, it’s the same size. When you are looking at duct tape, you want to make sure that the backing is the same color along with the same — the adhesive is the same color. You also want to look at things like the scrim fabric to make sure that that’s constructed in the same way in both materials. And then you begin to look at the torn ends of the tape to see if there’s any — any correspondence between the two tears. Basically what you’re looking at is not — you’re trying to determine that there is a complex tear or fracture. It’s not just totally straight and there’s no detail in it. And then you begin to use the stereo microscope to begin to look at things like any markings that may be in the backing of the tape that continue from one side of the tape over — across the fracture line onto the other side of the tape. The — in this instance I also removed some of the adhesive because the scrim fabric — there — there is — oftentimes will be tears and the — the scrim fabric will tear unevenly so that at sometimes some of the yarns will extend out of the — ... will extend out of the one side and then there will be a blank place in the other — other corresponding spot on the other side. And in this instance there were several of those.

The court asked, “[W]hat is fracture match analysis? What is it? I mean, is it a — a scientific field or is it — I mean, how do you come up with the — ?” The witness responded:

Basically in any analysis that you begin to do whether — whether you’re looking at tapes or whether you’re looking at paper or plastics, lens pieces or just fabrics, pretty much that is the first step that you do in any analysis. Because if you can perform a fracture match — if you can show that these two items were once one in the same item and that the broken piece was at one time a part of and originated from the whole piece, then that is a definitive comparison. ... It definitely says that that piece came from the whole.

Asked by the court if fracture match analysis is a subgrouping of microanalysis, she responded in the affirmative and continued:

[I]t really doesn’t matter what materials that you are looking at. That would really be your first step is if you can do — if you can perform a fracture match and show that the piece came from the whole, then that — that says that this piece came from this — this piece came from the whole and no other piece in the world — ... — came from that. And then that negates the need for doing any chemical analysis or any other type of analysis. And what you’re looking for are unique characteristics between the — fractures.

Regarding the analysis she conducted in this case, the witness testified that

[t]he preliminary exam was [her] visual exam to see if [she] could see anything that looked like the two end matches may — may have occurred. In this analysis [she] also looked at other pieces of tape that were also submitted and was able to see that those other ends did not match this particular end. So [she] eliminated those. [She did] not do a detailed comparison of those, just the visual exam.

No chemical or instrumental testing was performed.

Thus, the expert witness’s testimony addressed how the fracture match analysis was performed. But it did not address the core of the Harper test — whether fracture match analysis had reached a scientific stage of verifiable certainty such that the evidence thereof constituted competent evidence. See Harper, 249 Ga. at 526 (1); Parker, 307 Ga. App. at 61. To this point, the state’s expert witness claimed that fracture match analysis was as definitive as DNA testing, because it involved the identification of unique characteristics of the fracture. But when asked for support for her opinion that a visual examination of fractures could produce definitive results akin to DNA testing, the witness testified only that when she performed the analysis her conclusions were peer-reviewed. In contrast, Georgia courts determined that DNA testing had reached a scientific stage of verifiable certainty based upon extensive evidence concerning the scientific theory underlying DNA identification techniques, the protocol and standards with which those techniques were employed, and the statistics and probability by which the reliability of a DNA match could be assessed. See generally Caldwell v. State, 260 Ga. 278, 279-287 (1) (393 SE2d 436) (1990). Here, the expert witness’s unsupported opinion that fracture match analysis was as definitive as DNA testimony did not establish that the Harper standard had been met.

Further, although the state’s expert had a Bachelor of Science degree in chemistry and had received training in conducting fracture match analysis, she was not qualified as an expert on the scientific theory underlying the analysis. The state presented no expert witness who opined that the underlying scientific theory had reached a scientific stage of verifiable certainty.

In summary, no appellate court in Georgia has determined whether fracture match analysis has reached a scientific stage of verifiable certainty so as to become competent evidence under Harper. The witness testified on voir dire that fractures are unique and that a match definitively shows that two fractured pieces were once part of the same whole item. Although there might be a means of establishing that this proposition has reached the scientific stage of verifiable certainty required by Harper, the state failed to do so in this case.

(b) Nevertheless, the trial court’s error in ruling that the Harper test had been satisfied does not require reversal. Unlike the expert witness’s overreaching testimony on voir dire, her testimony before the jury did not focus on the scientific principles underlying fracture match analysis or its ability to identify unique tears. Instead, the witness testified primarily about her acts of observing and comparing the physical properties of two pieces of duct tape through a stereo microscope. This testimony helped the jury with information the average juror does not have. For example, juries do not have the benefit of a stereo microscope, nor would most think to or have the ability to remove the adhesive over the cloth scrim to better examine the tear in a piece of duct tape.

In Belton v. State, 270 Ga. 671 (512 SE2d 614) (1999), the Supreme Court of Georgia held that expert testimony regarding the comparison of shoe prints to the external physical characteristics of particular shoes was not subject to the Harper standard, because it did not deal with scientific principle or technique but rather with observation and comparison of physical objects, which were matters of skill and experience. Id. at 674 (4). Consequently, the court in Belton held that the expert testimony on shoe prints was admissible although the trial court did not apply the Harper test to the evidence. Id.; see also OCGA § 24-9-67 (in criminal cases, opinions of experts on questions of skill shall always be admissible). Like the testimony in Belton, most of the testimony given before the jury by the witness in this case was not subject to Harper and was admissible as concerning the observation and comparison of physical objects, notwithstanding the trial court’s erroneous Harper ruling.

The expert witness did give some testimony before the jury that should have been excluded under Harper. Specifically, she testified that

at the molecular level the molecules are either arranged randomly or they’re arranged in crystals and those crystals are then arranged randomly within the material. So that when you have a — a tear or a fracture of some sort, then that tear or fracture is going to occur randomly. It’s not going to occur the same way in any one material — the exact same way in a material two times.

This information, however, was not a necessary foundation for evidence of the physical comparison performed by the witness, such as her observation that the longer fibers on the end of the duct tape allegedly used to bind one of the victims matched the shorter fibers on the end of the roll of tape found in the car. Moreover, defense counsel elected to expose on cross-examination the expert witness’s overreaching regarding the uniqueness of fractures. Defense counsel elicited a repetition before the jury of her claim on voir dire that fracture match analysis is as accurate as a DNA test. Under these circumstances, we find it highly probable that the court’s admission of the brief portion of testimony that should have been excluded under Harper did not contribute to the judgment in this case. See Harris v. State, 283 Ga. App. 374, 379-380 (3) (641 SE2d 619) (2007) (in case of nonconstitutional error, applying highly probable test to determine whether error was harmless).

Case No. A11A1295

3. Jefferson further contends the trial court erred by restricting his cross-examination of a police officer. We find no error. During the cross-examination of the officer, Jefferson requested the officer “to come down and examine his arm and tell us what he sees in the way of tattoos.” After the state objected, the trial court, relying upon Wesley v. State, 228 Ga. App. 342 (491 SE2d 824) (1997), and State v. Battaglia, 221 Ga. App. 283 (470 SE2d 755) (1996), sustained the objection because “that deprives the State of the right to — cross-examine the defendant.” We find no error. Although Jefferson had a right to a thorough and sifting cross-examination, OCGA § 24-9-64, the right is not unlimited. “[T]he scope of such cross-examination is within the sound discretion of the trial court[ ] [cits.],” White v. State, 253 Ga. 106, 110 (4) (317 SE2d 196) (1984), and “[i]t is the duty of the court ‘to allow a searching and skillful test of (the witness’s) intelligence, memory, accuracy and veracity.’ ” Carroll v. Hill, 80 Ga. App. 576, 581 (56 SE2d 821) (1949). Here, what Jefferson sought was not related to a legitimate purpose of cross-examination, but to introduce evidence without the burden of cross-examination. The trial court did not abuse its discretion.

Overreaching cross-examination may not be used as a vehicle to enable a party to present non-testimonial evidence without being subject to oath, or to subvert the ability of the opposing party to cross-examine the party proponing such non-testimonial evidence. Within carefully protected legal parameters, the scope of cross-examination lies within the sound discretion of the trial court; this discretion will not be disturbed by an appellate court absent manifest abuse. Basically, the confrontation clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way and to whatever extent[ ] the defense might wish.

(Citations and punctuation omitted.) Battaglia, 221 Ga. App. at 284-285 (1).

4. Jefferson also contends the trial court erred by denying his motion to sever his trial from that of Edwards’. We find no error. A defendant seeking a severance must show clearly that he will be prejudiced by a joint trial and without a showing of clear prejudice, the denial of a severance motion will not be disturbed. Green v. State, 274 Ga. 686, 688 (2) (558 SE2d 707) (2002). A trial court should consider the following factors when ruling on a motion to sever: whether a joint trial will create confusion of evidence and law; whether there is a danger that evidence implicating one defendant will be considered against a co-defendant despite limiting instructions; and whether the defendants are asserting antagonistic defenses. Rhodes v. State, 279 Ga. 587, 589 (3) (619 SE2d 659) (2005). “The burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.” (Punctuation and footnote omitted.) Moss v. State, 275 Ga. 96, 99 (2) (561 SE2d 382) (2002). As Jefferson made no such showing, we find no abuse of discretion in denying the motion to sever.

Case No. A11A1296

5. Edwards contends that the trial court erred in admitting the expert testimony on fracture match analysis because the witness’s conclusion that the pieces of duct tape matched invaded the province of the jury. We disagree.

The issue is not whether the opinion would invade the province of the jury, but whether the subject is a proper one for opinion testimony. Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the layman.

(Citations and punctuation omitted.) Jefferson Pilot Life Ins. Co. v. Clark, 202 Ga. App. 385, 392 (3) (414 SE2d 521) (1991).

Whether the ends of the two pieces of duct tape matched was a proper subject for opinion testimony. As discussed in Division 2 (b), the witness’s opinion on this subject was based on her skill and experience in observing and comparing torn pieces of material, and it rested in part upon her use of equipment and techniques not generally accessible or within the knowledge of jurors. Under these circumstances, we find no abuse of discretion in the court’s decision to admit the testimony. See Jackson v. State, 291 Ga. App. 287, 288 (2) (b) (661 SE2d 665) (2008).

6. Edwards contends that a witness for the state improperly commented on his rights to remain silent and to counsel, and that the trial court erred in denying his motion for mistrial on this ground. The challenged comment was made by a police officer during the following exchange on cross-examination:

Q: [One of the victims] told you that she saw the heavyset suspect at the mall, didn’t she.
A: Yes sir. She believed that she saw the heavyset suspect at the mall.
Q: And he had a tattoo on his arm saying pray for me?
A: That’s correct.
Q: Do you know if my client [Edwards] has a tattoo that says pray for me?
A: Well, I don’t know because on December the 20th I went down to the jail and talked to Mr. Edwards but he requested an attorney. I noticed that he did have tattoos . . . but I did not question him about those tattoos because of that fact.

The trial court immediately gave a curative instruction that the jury disregard the witness’s statement referring to Edwards requesting an attorney. Edwards’ counsel also moved for a mistrial, but the court denied the motion.

A defendant’s exercise of his rights to remain silent and to be represented by counsel is not to be used as evidence against him. Hosch v. State, 246 Ga. 417, 419 (2) (271 SE2d 817) (1980). But an improper comment on these rights does not necessarily require reversal. See Whitaker v. State, 283 Ga. 521, 524 (3) (661 SE2d 557) (2008). “The grant or denial of a mistrial is within the trial court’s sound discretion, and the appellate court will not interfere with the trial court’s exercise of that discretion unless it is clear that a mistrial was essential to preserve the right to a fair trial.” (Citation and punctuation omitted.) Id.

The Supreme Court of Georgia has held in Whitaker that a trial court does not abuse its discretion in denying a motion for mistrial and instead giving a curative instruction where an improper comment on a defendant’s exercise of the right to remain silent was not directed to any particular statement or defense offered by the defendant, where the comment instead was made during the witness’s explanation of the course of events, and where there was no indication that the comment was intended to, or did, have the effect of being probative on the issue of guilt or innocence. Id. at 524-525 (3). The improper comment in this case was made under similar circumstances as those considered by the Supreme Court. We find no abuse of discretion in the trial court’s decision to deny Edwards’ motion to dismiss and instead issue a curative instruction.

7. Edwards also contends the trial court erred by denying his motion to suppress the results of the search of his car because “the magistrate [who issued the search warrant] was provided none of the information that might cast doubt on the reliability of the complainants.” He contends the affidavit supporting the search warrant application did not reveal that a police officer arriving at the victims’ apartment detected the aroma of green marijuana and also did not reveal that the victims in this case had police records. Thus, he asserts that the victims should have been stripped of the presumption of credibility normally afforded law abiding citizens. We find no error.

The standards to be employed when an appellate court reviews a trial court’s decision on a motion to suppress are stated in Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

In determining whether probable cause supported issuance of a search warrant, a “totality of the circumstances” test is employed. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for concluding” that probable cause existed.

(Citations and punctuation omitted.) Sims v. State, 207 Ga. App. 353, 354 (427 SE2d 842) (1993). Further, a magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court. McClain v. State, 267 Ga. 378, 388 (477 SE2d 814) (1996).

Decided November 3, 2011

Reconsiderations denied November 23, 2011

Jessica I. Benjamin, for appellant (case no. A11A1295).

Thomas J. Killeen, for appellant (case no. A11A1296).

Kenneth W. Mauldin, District Attorney, Raquel C. Stokes, Jon R. Forwood, Assistant District Attorneys, for appellee.

The omissions alleged by Edwards did not require suppression of the evidence seized from his car.

If a court determines that an affidavit submitted contains material misrepresentations or omissions, the false statements must be deleted, the omitted truthful material must be included, and the affidavit must be reexamined to determine whether probable cause exists to issue a warrant. Even doubtful cases should be resolved in favor of upholding a magistrate’s determination that a warrant is proper.

(Citations and punctuation omitted.) Sullivan v. State, 284 Ga. 358, 361 (2) (667 SE2d 32) (2008). Even if the officer’s affidavit had included information about the victims’ criminal histories and the marijuana aroma at their apartment, the affidavit also supplied the magistrate with other evidence to support the issuance of the warrant, because it contained information from sources other than the victims from which the magistrate could have found probable cause. It informed the magistrate that another officer learned that the suspects left the apartment area in a yellow Dodge Charger with tinted windows and words similar to “Dakota” on the side; that the previous night another officer had stopped a yellow Dodge Charger with the word “DAYTONA” written on it; and that Jefferson had been allowed to leave with the car after the stop. The trial court’s denial of the motion to suppress was not error. See Sullivan, supra.

Judgments affirmed.

Phipps, P. J., and Andrews, J., concur.


author: Dillard, Judge.

text:
    A11A1035.
    GEORGIA TRANSMISSION CORPORATION v. WORLEY et al.
    (720 SE2d 305)
   Dillard, Judge.

In this condemnation action, Georgia Transmission Corporation (“GTC”) filed three separate in rem petitions to obtain easement rights across three parcels of adjacent property owned by Nellie Worley, Wendell and Margaret Puckett, and Tommy and Shelli Craig (“condemnees”), respectively. Following an award by a special master on all three petitions, condemnees appealed to the superior court and moved to have the cases consolidated, which the court granted. GTC now appeals, arguing that the superior court’s consolidation of the three cases without GTC’s consent constituted legal error. For the reasons set forth infra, we agree and reverse.

The record shows that in September 2008, GTC, an electric membership cooperative, sought to obtain easement rights across three parcels of contiguous property in Barrow County in order to construct, maintain, and operate electric transmission lines. The parcels of property over which the easement would cross are owned by members of the same family and have been used primarily for agricultural purposes for over 100 years. Specifically, the property includes a 2.03 acre tract owned by the Craigs and located on the northwest side of a two-lane county road; a 21.5 acre tract owned by Ms. Worley and bisected by the same county road; and a 74.93 acre tract owned by the Pucketts and located on the south side of the road.

On September 29, 2008, GTC filed three separate in rem condemnation petitions, pursuant to authority conferred upon it by Title 22, to obtain an easement across the three subject parcels of property. The condemnees were all represented by the same counsel, and based on an agreement by all parties, the same special master heard evidence pertaining to all three petitions over the course of a two-day hearing. Following that hearing, the special master made separate findings as to each petition and entered separate awards as to each condemnee.

Dissatisfied with the special master’s respective awards, the condemnees filed separate appeals to the superior court, each seeking a jury trial on the issue. And shortly thereafter, all three condemnees filed motions requesting that the superior court consolidate the three cases for one jury trial. GTC did not consent to consolidation and filed opposition briefs to that effect. Nevertheless, after a hearing on the issue, the superior court consolidated the cases, concluding that its equitable powers under Title 23, as well as the need to conserve judicial resources in light of severe budgetary constraints, provided authority for doing so. Subsequently, GTC sought a certificate of immediate review, which the superior court granted. This interlocutory appeal follows.

GTC contends that the superior court erred in consolidating the three condemnation petitions, arguing that doing so without its consent violated OCGA § 9-11-42 (a). We agree, and thus reverse the superior court’s order granting consolidation.

At the outset, we note that “the standard of review for a question of law on appeal is de novo.” And when a question of law is at issue, as here, “we owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” With these guiding principles in mind, we will now address the substance of GTC’s argument.

In construing the relevant statutes at issue here, “we apply the fundamental rules of statutory construction that require us to construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.” While doing so, “we must seek to effectuate the intent of the legislature.” Additionally, “[a] 11 statutes are presumed to be enacted with full knowledge of existing law[,] and their meaning and effect [are] to be determined with reference to the constitution as well as other statutes and decisions of the courts.”

Turning to the statutes at issue, OCGA § 9-11-42 (a) of the Civil Practice Act (“CPA”) requires the consent of all parties before any consolidation of actions can be effectuated. And pursuant to OCGA § 9-11-81, the CPA applies to “all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law . . . ,” Given that condemnations under Title 22 are a special statutory procedure contemplated by OCGA § 9-11-81, the question becomes whether OCGA § 9-11-42 (a) is in conflict with any relevant provisions of Title 22. For the reasons noted infra, we find no such conflict.

In its order granting condemnees’ motions for consolidation, the superior court acknowledged that no provision within Title 22 expressly confers upon trial courts the authority to consolidate cases without the consent of all parties. Nevertheless, the superior court found this Court’s holding in Department of Transportation v. Defoor that Title 32 conferred such authority in condemnation cases brought under that statutory scheme to be “at least suggestive of the distinction made in the law between typical civil actions and eminent domain cases.” And the superior court is correct that in Defoor, we held that OCGA § 32-3-17.1 conflicted with OCGA § 9-11-42 (a) in that the former, which provides that the judge “may . . . make such orders and give such directions as are necessary to speed the cause, and as may be consistent with justice and due process of law,” authorizes courts to consolidate condemnation proceedings brought under that statute regardless of whether all parties consented. However, we disagree that any broader implications can or should be gleaned from that decision in light of the fact that it involved a completely separate statutory framework. Indeed, there is no provision within Title 22 that contains language comparable to that contained in OCGA § 32-3-17.1, which grants the superior court broad authority for resolving “[a]ll questions of law arising upon the pleadings or in any other way arising from the cause. . . .” Furthermore, “[t]he difference in interpretation between [Title 22 and Title 32] may seem fairly small, but such distinctions are best left to the wisdom of the legislature . . . ,”

Nor do we find persuasive the superior court’s conclusion that its equitable powers under OCGA § 23-4-1 authorized consolidation of these cases. GTC’s condemnation petitions are in rem actions to obtain easements, and condemnees did not raise any equitable issues in the hearing before the special master or in their appeals to the superior court. Furthermore, the superior court’s reliance on the equity statute to support its consolidation ruling ignores the mandate in OCGA § 9-11-81 that the CPA applies to special statutory proceedings unless it conflicts with specific procedures expressly prescribed by the statute authorizing the special statutory proceeding in question. In other words, the plain meaning of OCGA § 9-11-81 requires that in determining whether the CPA conflicts with procedures governing a special statutory proceeding, the analysis must necessarily be confined to a review of the language of the CPA and the special statute at issue.

Moreover, even if the superior court’s equitable powers were applicable here, consolidation would be inappropriate. It is well settled that

[i]f there is a common right and the court of equity takes jurisdiction, there is no limit to which the court will go in order to do complete justice, but, where there is no common right, equity will not, for any purpose, entertain a suit wherein separate and distinct parties with separate and distinct claims unite against one or more parties.

And here, it is undisputed that although the condemnees are all related, the three parcels of property at issue are separately owned and differ in acreage. Thus, any consolidation would create an action involving distinct parties with distinct claims uniting against one party.

In reaching the foregoing result, we do not fault the superior court’s admirable desire to conserve judicial resources. Indeed, this Court has similarly felt the impact of the severe budgetary constraints that have affected every level of the judiciary throughout the State. Nevertheless, because no provision within Title 22 conflicts with OCGA § 9-11-42 (a), the latter statute applies here, and thus, the condemnation petitions could not be consolidated without GTC’s consent. Accordingly, we are constrained to reverse the superior court’s order consolidating these cases.

Decided November 23, 2011.

Webb, Tanner, Powell, Mertz & Wilson, Robert J. Wilson, Jody C. Campbell, for appellant.

Vaughan & Evans, Donald C. Evans, Jr., for appellees.

Judgment reversed.

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

        Fort v. Rucker-Fort, 297 Ga. App. 3, 4 (676 SE2d 398) (2009) (punctuation omitted).

        Id. at 4 (punctuation omitted).

        Currid v. DeKalb State Court Prob. Dep’t., 285 Ga. 184, 187 (674 SE2d 894) (2009) (punctuation omitted); see also 2A Norman J. Singer, Statutes and Statutory Construction § 46:06 (6th ed. 2000) (“It is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute.”).

        Currid, 285 Ga. at 187 (punctuation omitted).

        Higdon v. City of Senoia, 273 Ga. 83, 86 (3) (538 SE2d 39) (2000); see also Singer, supra note 10, § 46:05 (noting that “statutes must be construed to further the intent of the legislature as evidenced by the entire statutory scheme” (emphasis supplied)).

       OCGA § 9-11-42 (a) (“When actions involving a common question of law or fact are pending before the court, if the parties consent, the court may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated . . . .”).

       OCGA § 9-11-81; see Phagan v. State, 287 Ga. 856, 859 (700 SE2d 589) (2010) (“The provisions of the CPA are to apply to all special statutory proceedings except to the extent that there are specific rules of practice and procedure in conflict and expressly prescribed by law.”).

        See Ga. Power Co. v. Stowers, 282 Ga. App. 695, 697 (639 SE2d 605) (2006) (holding that a proceeding before a special master constitutes a special statutory proceeding); Nodvin v. Ga.

        Power Co., 125 Ga. App. 821, 822 (2) (189 SE2d 118) (1972) (same).

       173 Ga. App. 218 (325 SE2d 863) (1984).

       Eminent domain authority is conferred by two separate statutory titles. OCGA § 22-2-1 et seq. governs condemnation for general public purposes, including the construction of utilities. OCGA § 32-3-1 et seq. governs condemnation for transportation purposes.

        Defoor, 173 Ga. App. at 219-20.

       OCGA § 32-3-17.1.

        See Defoor, 173 Ga. App. at 219-20.

       OCGA § 32-3-17.1. In their appellees’ brief, condemnees assert that the last sentence in OCGA § 22-2-135, which provides that “it shall be within the power of the court to hear the cause as speedily as may be consistent with justice and due process of law,” authorizes consolidation here. However, condemnees failed to raise this argument below, and it is clear from the superior court’s order that it did not consider OCGA § 22-2-135 in its ruling to consolidate these petitions. Therefore, this argument is waived. See Dep’t of Transp. v. Dalton Paving & Constr., Inc., 227 Ga. App. 207, 221 (7) n. 7 (489 SE2d 329) (1997). Regardless, read in pari materia with the beginning of the statute, see City of LaGrange v. Ga. Public Svc. Comm., 296 Ga. App. 615, 620 (2) (675 SE2d 525) (2009), the power of the court noted in the last sentence of OCGA § 22-2-135 pertains specifically to the power to order the issues tried in the first instance by a jury rather than proceeding initially with the appointment of assessors.

        Central of Ga. Elec. Membership Corp. v. Mills, 196 Ga. App. 882, 884 (397 SE2d 137) (1990); see also Brunswick Landing, LLC v. Glynn County, 301 Ga. App. 288, 294 (4) (a) (687 SE2d 271) (2009).

        See OCGA § 23-4-1 (“Where there is one common claim to be asserted by or against several, and one is asserting the claim against many, or many against one, the court may utilize equitable powers to consolidate and determine the whole matter in one action.”).

        See Phagan, 287 Ga. at 859 (holding that the question to be determined was whether the CPA specifically conflicted with the habeas corpus statute at issue); Whigham v. City of Atlanta, 262 Ga. App. 742, 742 (1) (586 SE2d 412) (2003) (holding that the CPA “will apply to in rem forfeiture actions under [Title 32] only to the extent the Act does not conflict with the specific practice and procedures expressly prescribed by [Title 32]”).

        Walker Elec. Co. v. Walton, 201 Ga. 591, 593 (40 SE2d 523) (1946) (punctuation omitted).


text:
    A11A1910.
    GREASON v. THE STATE.
    (720 SE2d 311)
   McFadden, Judge.

Billy Greason appeals the judgment of conviction entered on his guilty pleas to maintaining a disorderly house and misdemeanor possession of marijuana. He argues that the trial court erred in denying his motion to suppress evidence and that the state failed to produce physical evidence to support the convictions. Because Greason waived these challenges by entering his guilty pleas, we affirm.

“A defendant waives any error in the denial of his motion to suppress by pleading guilty; therefore, this [c]ourt is precluded from reviewing that decision.” (Citations omitted.) Skinitis v. State, 271 Ga. App. 549, 550 (610 SE2d 571) (2005). A defendant also waives any challenge to the sufficiency of the evidence by pleading guilty. Henry v. State, 284 Ga. App. 439, 440 (1) (644 SE2d 191) (2007). We observe that the state established a factual basis for Greason’s pleas. See Zellmer v. State, 257 Ga. App. 346, 347 (1) (571 SE2d 174) (2002).

With a few limited exceptions not applicable here, a plea of guilty generally waives all defenses except those based upon the knowing and voluntary nature of the plea. Once a defendant solemnly admits in open court that he is, in fact, guilty of the offense charged, he generally may not thereafter raise independent claims that occurred prior to the entry of his guilty plea.

(Citations omitted.) Pirkle v. State, 240 Ga. App. 24, 26 (2) (522 SE2d 526) (1999). It follows that, by entering his guilty pleas, Greason waived his challenges to the denial of his motion to suppress evidence, to the state’s failure to provide physical evidence, and, to the extent the evidentiary challenge raised the issue, to the sufficiency of the evidence to support the convictions.

Decided November 23, 2011.

Billy Greason, pro se.

Layla H. Zon, District Attorney, Erie J. Newton III, Marie E. Greene, Assistant District Attorneys, for appellee.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


text:
    A11A2180.
    TERRY v. BURLEY.
    (720 SE2d 309)
   Ellington, Judge.

Following a bench trial, a judge of the Superior Court of DeKalb County entered judgment in favor of plaintiffs Keith Burley and 4K Appraisal Services, Inc., on claims against Todd Terry for Terry’s fraudulently converting to his own use residential property owned by Burley. Terry appeals, contending that the trial court erred in admitting or excluding certain evidence and in allowing Terry to proceed to trial pro se after his counsel withdrew. As Terry has failed to carry his burden of showing error on appeal, we affirm.

1. Terry contends that the court erred in admitting allegedly improper and prejudicial character evidence during the bench trial. Terry, however, did not have the trial transcribed; thus, there is no transcript for this Court to review for error. Consideration of evidentiary issues necessarily requires a review of the proceedings below. Terry bears the burden of showing harmful error on appeal, and he must show this by the record, not merely by assertions appearing in his briefs or enumeration of errors. Cody v. Wanton, 265 Ga. App. 174 (593 SE2d 371) (2004).

Therefore, in the absence of a transcript, we must assume the trial court’s findings were supported by the evidence and the trial court’s actions during the trial were appropriate. Further, a presumption of regularity of all proceedings in a court of competent jurisdiction exists, and as the record provides no support for [Terry’s] claim of error, we must affirm the trial court’s ruling on [these issues].

(Citations omitted.) Id. at 174-175.

Decided November 23, 2011.

Krohn & Moss, Shireen Hormozdi, for appellant.

Marcia M. Fuller, for appellee.

2. Terry contends that “evidence was not presented during the trial that weighs against the verdict and judgment.” He urges this Court to consider an affidavit that he filed with the trial court after his trial but which is not a part of the appellate record. He contends this affidavit would show that Burley had “full knowledge of the activity he claims [was] illegally committed[.]” Again, in the absence of a transcript demonstrating that the trial court erred in excluding this evidence, we must assume the court’s actions were appropriate. Id.

3. Terry contends that the trial court erred in allowing his counsel to withdraw before trial and in allowing him to proceed pro se. The record shows that, on March 10, 2010, Terry’s counsel notified him by certified mail of his intent to withdraw as counsel unless Terry paid the outstanding balance due to counsel. Then, on January 31, 2011, Terry’s counsel filed a motion to withdraw; the attached certificate of service shows that counsel sent Terry a copy of the motion. The trial court entered an order permitting Terry’s counsel to withdraw on February 11, 2011. Terry’s trial occurred on March 3, 2011. There is no other evidence in the record concerning this issue.

[I]n order for a defendant to obtain a new trial because of. . . the absence of his counsel at the trial, it must be shown that the party was without fault, and that he had a good defense to the action. . . .Where parties have a case in court, it is their duty to attend and look after their interests.

(Citations and punctuation omitted.) Dunn v. Duke, 216 Ga. App. 829, 831-832 (1) (456 SE2d 65) (1995). Given that Terry has not shown he was without fault or that he had a good defense, he has not carried his burden of showing error on appeal by demonstrating that he is entitled to a new trial on this basis. Consequently, we find no error.

Judgment affirmed.

Miller, E J., and Doyle, J., concur.