author: McMlLLIAN, Judge.

text:
    A14A0188.
    PHILLIPS et al. v. HARMON et al.
    (760 SE2d 235)
   McMlLLIAN, Judge.

Lee V. Phillips IV, by and through his mother Santhonia Hector, and Hector individually (collectively “Plaintiffs”), filed this medical malpractice action against Marcia R. Harmon, CNM, Deborah E. Haynes, M.D., Eagles Landing OB-GYN Associates, PC., Eagles Landing OB-GYN Associates II, LLC, and Henry Medical Center, Inc. (collectively “Defendants”), alleging that, due to Defendants’ negligence, Phillips suffered oxygen deprivation shortly before birth, which resulted in severe, permanent neurological injuries, including spastic quadriplegia, blindness, and an inability to speak.

The case ultimately proceeded to a jury trial, which commenced on August 20, 2012 and, following approximately one-and-a-half days of deliberations, the jury returned a verdict for the Defendants on September 6, 2012. Plaintiffs filed a motion for new trial asserting, among other things, that the trial court erred by engaging in a communication with the jury when neither the parties nor their attorneys were present, and by refusing to give Plaintiffs’ requested charge on spoliation of evidence. The trial court denied their motion, and Plaintiffs filed this appeal, raising the additional claim that the Defendants improperly introduced evidence of collateral source benefits. We agree with Plaintiffs that they are entitled to a new trial and reverse.

1. We first consider Plaintiffs’ contention that they are entitled to a new trial because the trial court responded to a note from the jury during the course of their deliberations without ever advising the parties or their counsel that the communication had taken place.

(a) As to this issue, the record shows that several weeks after the jury returned its verdict, two jurors contacted Plaintiffs’ counsel to express concerns about possible juror misconduct. During that conversation, Plaintiffs’ counsel learned for the first time that the trial judge had responded to a note from the jury without ever disclosing the contents of the note or his response to either the parties or their counsel. Thereafter, Plaintiffs’ counsel obtained affidavits from the two jurors, both of whom averred that, on the second day of deliberations, the jury sent a note to the trial judge “indicating that [they] were not able to reach a unanimous verdict.” According to the jurors, the judge sent a note back, which instructed the jury to “continue deliberating.”

After learning of the communication, Plaintiffs’ counsel sent a letter to the trial judge requesting that he “take steps to see that both the jurors’ note... and [his] responsive note are filed with the Clerk.” After realizing that the court reporter did not have the note, the trial judge, without seeking input from counsel or holding a hearing, entered an order supplementing the record pursuant to OCGA § 5-6-41 (d). The order recites that four notes were delivered to the court while the jury was deliberating, that three of the notes were preserved and made a part of the record, but that the note pertaining to the jury’s inability to reach a unanimous verdict was not one of them. The order found that the note read “What happens if we can’t reach a unanimous verdict,” and was delivered to the court immediately after lunch recess on September 5, 2012, which was the first day the jury deliberated. The trial judge further recited that due to the fact that the note did not actually indicate that the jury was “hung” and in view of the short amount of time the jury had been deliberating after such a lengthy trial, he did not believe consultation with counsel about his response to the note was necessary, and therefore wrote on the same piece of paper “please continue deliberating” and had the bailiff return the note to the jury. The trial judge also stated the note had remained with the jury, and presumably was destroyed along with the jurors’ personal notes as instructed by the bailiff after the verdict was returned.

Plaintiffs subsequently filed a motion to recuse or disqualify the trial judge due to the perceived conflict between his order supplementing the record and the jurors’ affidavits. The trial judge granted the motion to recuse, and the case was re-assigned. Following a hearing on Plaintiffs’ motion for new trial, the assigned judge rejected Plaintiffs’ claim that the trial court’s communication with the jury was per se reversible error, and concluded that the Plaintiffs were not entitled to a new trial because the note was not impermissibly misleading or coercive. Plaintiffs now challenge that ruling, arguing that, under the circumstances of this case, we should presume that the trial judge’s communication with the jury was harmful, and that, in any event, the trial judge’s response was coercive under the circumstances in which it was given.

(b) In Kesterson v. Jarrett, 291 Ga. 380 (728 SE2d 557) (2012), our Supreme Court reaffirmed and elucidated the fundamental right of a natural party to be present in the courtroom during the trial of his or her case. As the Court explained:

[The right to be present] has been treated as a component of the due process of law in both criminal and civil cases since the early decisions of this Court____ Tift v. Jones, 52 Ga. 538, 542 (1874) (explaining that a civil litigant has a “right to be present in the court during the whole trial of his case”). . . . The right to be present is also reflected textually in our State Constitution, in the provision guaranteeing to every person “the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” Ga. Const, of 1983, Art. I, Sec. I, Par. XII.

Kesterson, 291 Ga. at 384 (2) (a).

The issue in Kesterson — whether a party may be denied the right to be present and properly excluded from the courtroom because his or her physical or mental condition might invoke undue sympathy from the jury — was one of first impression in this state. However, there is, as noted in Kesterson, a long line of precedent in Georgia affirming a civil litigant’s right to be present at their trial. See, e.g., St. Paul Fire & Marine Ins. Co. v. Brunswick Grocery Co., 113 Ga. 786, 789 (39 SE 483) (1901) (it is “manifestly erroneous” for a party to the “issue” to be excluded from the courtroom) (emphasis supplied); Mays v. Tharpe & Brooks, Inc., 143 Ga. App. 815, 816 (240 SE2d 159) (1977) (“A substantial right of a party to litigation is to be present at the trial and render assistance to his counsel as the developments unfold”); Walden v. MARTA, 161 Ga. App. 725, 726 (288 SE2d 671) (1982) (in sequestering of witnesses, plaintiff should be given the option of testifying first so that plaintiff can be present during the trial).

Although a party’s right to be present is firmly established in both our civil and criminal jurisprudence, there appears to be a dearth of authority addressing the right of a civil litigant to be present when the trial judge engages in communications with the jury. However, our appellate courts have addressed this issue numerous times in criminal cases and, as have the parties, we turn to those cases for guidance.

As our Supreme Court explained in Hanifa v. State, 269 Ga. 797, 807 (6) (505 SE2d 731) (1998),

[wjithin the Georgia constitutional right to the courts is a criminal defendant’s “right to be present, and see and hear, all the proceedings which are had against him on the trial before the Court.” A colloquy between the trial judge and the jury is a part of the proceedings to which the defendant and counsel are entitled to be present.

(Citations and punctuation omitted; emphasis in original.) Id. at 807 (6). See also Cox v. Yates, 96 Ga. App. 466 (100 SE2d 649) (1957) (generally, parties to civil action have the right to be present at all stages of the trial).

Unquestionably the trial judge should not in any manner communicate with the jury about the case, in the absence of the accused and his counsel, pending the trial; and the better practice is for the judge to have no communication with the jury on any subject except through the medium of the sworn bailiff in charge of the jury; and the communication should be restricted, in the absence of the accused and his counsel, to matters relating to the comfort and convenience of the jury. There should be no communication which would tend in any manner to prejudice the accused ...; and unless the character of the communication clearly shows that it could not have been prejudicial to the accused, the presumption of law would be that it was prejudicial.

Hanifa, 269 Ga. at 807 (6). Lowery v. State, 282 Ga. 68, 73 (4) ()3) (646 SE2d 67) (2007) (“[a] trial court’s communication with a jury on substantive matters is a part of the proceedings to which the defendant and counsel are entitled to be present”).

Further, and pertinent to this case, our appellate courts have specifically considered judge/jury communications concerning a jury’s ability, or inability, to reach a verdict, and routinely held that it is error for a trial judge to respond to such an inquiry in the absence of the defendant and/or his counsel. E.g., Lowery, 282 Ga. at 74 (4) (b) (i); Wells v. State, 297 Ga. App. 153, 159-160 (2) (676 SE2d 821) (2009); Barnett v. State, 276 Ga. App. 238, 241-242 (2) (623 SE2d 136) (2005). But see Stewart v. State, 165 Ga. App. 428, 429-430 (2) (300 SE2d 331) (1983) (trial court’s response of “keep on trying” to deadlocked jurors “not so material to appellant’s case as to require her presence and that of her counsel”).

Defendants, while certainly not suggesting that ex parte communications between a trial judge and a jury are permissible even in a civil trial, urge that the stringent requirements applicable to criminal cases should be reserved for those civil cases such as Kesterson where a fundamental right has been totally or substantially denied. But we find that the right to be present has been totally denied here. Although certainly the duration of the exclusion was not as long as Kesterson, the violation here was in at least one way more absolute — unlike in Kesterson, where the plaintiff had her attorneys representing her during trial, Plaintiffs here were wholly without any representation during the trial court’s communication with the jury. Accordingly, we see no reason for the rule to be different in civil cases, and find that, as a general proposition and broadly stated, a trial judge should not answer a question from the jury in a civil case about their ability to reach a verdict unless the parties and/or their counsel are present as well.

(c) The question then, and the one presented squarely by this case, is whether the absolute failure to have counsel or the parties present for this type of communication with the jury requires reversal or whether we should further consider whether the error harmed the party seeking relief.

The harmless error rule applicable to civil cases is codified in OCGA§ 9-11-61:

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

Under this Code section, Plaintiffs normally would not be entitled to a new trial unless they could show “material harm” from the trial court’s actions. Ford Motor Co. v. Conley, 294 Ga. 530 (757 SE2d 20) (2014). However, as also stated in Conley, harm may nevertheless be presumed under certain circumstances, such as when a fundamental right has been denied and the error cannot be cured after the verdict. We see no reason why denial of a fundamental and constitutional right such as the right to be present — in person or by counsel — should not also be one of those rare circumstances where prejudice might be presumed. See Ga. Const, of 1983, Art. I, Sec. I, Par. XII; see also St. Paul Fire & Marine Ins. Co., 113 Ga. at 789 (it was “manifestly erroneous” to exclude the party from the courtroom).

Although the Court in Kesterson did not use the terms “presumed harm” or “presumed prejudice” in its analysis of the right to be present violation in that case, it also did not appear to require a showing of specific harm. Rather, the Court distinguished its prior decision in Willingham v. Willingham, 192 Ga. 405 (15 SE2d 514) (1941), in which a harmless error test was applied, by stating that unlike in Willingham, the Court in Kesterson, “can see how the trial court’s decision [to exclude the plaintiff] ‘could possibly have operated to the injury’ of Appellants.” Kesterson, 291 Ga. at 389 (2) (a). Further, the Court limited the holding in Willingham, which involved a bench trial in a custody case where the parents, but not their attorneys, were excluded while the children were questioned, to the circumstances presented there, stating it should not be viewed “as precedent for excluding a party from a typical civil trial.” Id.

In short, we glean nothing from Kesterson that requires us to apply a harmless error analysis to a right to be present violation such as the one that occurred in this case.

Moreover, as stated above, in our criminal law jurisprudence, our appellate courts have

consistently ruled that the denial of the right to be present guaranteed by the Georgia Constitution is not subject to harmless error review on direct appeal. Instead, a violation is presumed to be prejudicial. Thus, absent a valid waiver, violation of the right to be present triggers reversal and remand for a new trial whenever the issue is properly raised on direct appeal.

(Citation omitted.) Ward v. State, 288 Ga. 641, 646-647 (4) (706 SE2d 430) (2011). As we have explained,

[t]he accused and his counsel have the right to be present at every stage of the proceedings and personally see and know what is being done in the case. To say that no injury results when it appears that what occurred in their absence was regular and legal would, in effect, practically do away with this great and important right, one element of which is to see to it that what does take place is in accord with law and good practice.

(Citations and. punctuation omitted.) Goodroe v. State, 224 Ga. App. 378, 380 (1) (480 SE2d 378) (1997). See Kesterson, 291 Ga. at 385 (2) (a) (“under Georgia law the right to be present for all critical stages of criminal proceedings has been deemed so fundamental that a violation properly raised on direct appeal from a conviction is presumed to be prejudicial, requiring a new trial”) (emphasis supplied); Smith v. State, 284 Ga. 599, 609 (4) (669 SE2d 98) (2008) (harmless error applicable to federal claim of right to be present but “denial of the right to be present guaranteed by the Georgia Constitution is not subject to harmless error review on direct appeal”); Sammons v. State, 279 Ga. 386, 387 (2) (612 SE2d 785) (2005) (reversal required when defendant not present when juror released); Pennie v. State, 271 Ga. 419, 422 (520 SE2d 448) (1999) (new trial required when defendant was involuntarily absent during colloquy between trial judge and juror); Wells, 297 Ga. App. at 160 (2) (ex parte communication between trial judge and jury presumptively prejudicial, mandating a new trial); Vaughn v. State, 281 Ga. App. 475, 478-479 (636 SE2d 163) (2006) (same); cf. Logan v. State, 266 Ga. 566 (468 SE2d 755) (1996) (reversal not required where communication was a hypothetical inquiry by one juror which did not occur during deliberations and the trial court did not provide any specific instruction in response to the inquiry). But see Stewart, 165 Ga. App. at 430-431 (2) (pre-Loicery case affirming denial of motion for new trial based on finding that subject communication was not prejudicial to the appellant).

(d) Defendants argue that, in any event, the error that occurred here would not be reversible even against a criminal defendant because the character of the communication shows that it could not have been prejudicial to Plaintiffs, and that our appellate courts have in fact applied the harmless error rule even in criminal cases involving a violation of the right to be present. E.g., Barnett, 276 Ga. App. at 241 (2).

But a critical difference exists between many of the cases in which our appellate courts have deemed a right to be present violation harmless or waived and the case at hand, which is that those communications were in fact disclosed to the defendant and/or his attorney prior to the time the jury returned its verdict. Depending on the time of this disclosure, this afforded the defendant or his counsel the opportunity to have input concerning the court’s response, request that the court query the jury about the potential deadlock, object, move for a mistrial, or at a minimum, and importantly here, preserve a record of the communication. And if the defendant or his attorney was told of the communication prior to the return of the verdict and they failed to act, a waiver of the right to be present violation would occur. E.g., Lowery, 282 Ga. at 74 (4) (b) (i) (no violation of the right to be present when appellant and his counsel present for court’s response); Hanifa, 269 Ga. at 808 (6) (“we endorse the... holding that a defendant waives appellate review of an allegedly improper judge/jury communication when, prior to verdict, defendant is aware of the communication and fails to voice an objection”); Coleman v. State, 317 Ga. App. 409 (731 SE2d 94) (2012) (counsel for appellant present and conferred on court’s response, and appellant informed of the communication prior to the verdict but did not object); Daniel v. State, 292 Ga. App. 560, 561 (1) (665 SE2d 696) (2008) (appellant waived right to assert error when he failed to object or seek to perfect the record after he was made aware of communication prior to the entry of the verdict); Barnett, 276 Ga. App. at 240-241 (2) (trial court read the jury’s question and court’s response to appellant’s attorney before the jury’s verdict was published, and the attorney moved for a mistrial); see also Kesterson, 291 Ga. at 385 (2) (b) (party can waive right to be present or acquiesce in counsel’s waiver of his/her right).

(e) Perhaps partly in response to the frequency with which right to be present claims stemming from ex parte communications between trial judges and juries arise in criminal cases, our Supreme Court in Lowery set out a procedure

to require trial courts to have jurors’ communications submitted to the court in writing; to mark the written communication as a court exhibit in the presence of counsel; to afford counsel a full opportunity to suggest an appropriate response; and to make counsel aware of the substance of the trial court’s intended response in order that counsel may seek whatever modifications counsel deems appropriate before the jury is exposed to the instruction.

Lowery, 282 Ga. at 76 (4) (b) (ii). Although the Supreme Court in Lowery did not specifically state that this procedure applies to civil as well as criminal trials, it also did not specifically limit its application to criminal cases. And if the trial judge had followed the procedure in Lowery* for preserving the communication and making it a part of the record for our review, there would be no doubt about when the jury made its inquiry and the exact nature of their question to the trial court. If at that time uncertainty had been revealed about the nature of the inquiry, as there now appears to be, that uncertainty could have been resolved when the jury remained convened and the parties and their counsel were present to perfect the record as needed. But the trial court did not follow Lowery, or take any steps on its own to preserve the communication, and this Court has been left with differing, although we are certain, good faith, recollections both as to the timing of the communication and what it meant, recollections which no doubt have been eroded by time and intervening events. See Lindsey v. State, 277 Ga. App. 18, 21 (625 SE2d 431) (2005).

These differences are not unimportant to any analysis which we might undertake to decide whether the communication at issue was coercive or misleading. As the Supreme Court explained in Hanifa, “[t]he contents of the communication are necessary to determine whether the trial court’s erroneous communication with the jury constitutes harmful or harmless error.” 269 Ga. at 808 (6). Further, as stated more recently by that Court in Scott v. State, 290 Ga. 883, 888 (6) (725 SE2d 305) (2012), “[cjontextual factors, like timing, may play a role in determining coerciveness where there is a possibility that the charge could be coercive.”

A similar circumstance was presented in Lindsey, and although not controlling, we find our opinion in that case to be instructive. In that case, the judge, acting through the bailiff, responded to a question from the jury sent out during their deliberations concerning whether their verdict had to be unanimous. Although trial counsel was informed of the communication after it occurred, counsel did not request, and the trial court did not of its own accord, make a record of the communication. Thus, we explained,

[t]he communication involved in this case was not restricted to matters concerning the jury’s “comfort and convenience.” Instead, the information concerning the unanimity requirement could well be considered a supplemental charge, which should have been given in open court in [appellant’s] presence. If trial counsel had objected to the procedure used to answer the jury’s question, or if some record had been made of the jury’s question and the trial court’s response had been made in open court with all parties present, vague recollections recorded weeks after trial would not be an issue. Given the legal nature of the question posed by the jury, the responsibility of trial judges and bailiffs to avoid improper communication with juries, and the state of the record in this case, we are unable to conclude that the communication here “could not have been prejudicial to” [the appellant].

(Citations omitted.) 277 Ga. App. at 21-22.

In the case at hand, Plaintiffs’ counsel did attempt to perfect the record by taking immediate steps to have the communication made a part of the record as soon as he learned of it, but was unable to secure the actual communication despite his diligent efforts. Thus, this case presents one of those rare circumstances where the party who asserts they have been aggrieved has been effectively precluded from demonstrating harm. Such an inability of a party to prove they were harmed by an ex parte judge/jury communication obviously “affect[s] the substantial rights.” OCGA § 9-11-61. Cf. Stewart, 165 Ga. App. at 429 (2) (content and timing of communication did not appear to be at issue).

(f) Similarly, and as was the situation in Conley, there is yet an additional reason why we believe that error must be presumed here, involving yet “another longstanding Georgia rule — the prohibition against jurors impeaching their verdict.. ..” Conley, 294 Ga. at 550 (3) (b). See also OCGA § 24-6-606. Under that rule, it is arguable that the jurors would be precluded from even disclosing the fact and contents of the communication to the court, its timing, the court’s response, and the effect that such communication had on the deliberations. We need not decide the parameters of the rule against jurors impeaching their verdict here. But this demonstrates the extreme difficulty, if not impossibility, of a party to show harm when there is an absolute failure to preserve the communication or notify the parties and/or their counsel about it prior to the receipt of the verdict. Thus, as in Kesterson, we “can see how” this failure could affect the substantial rights of Plaintiffs to a fair trial.

Moreover, as the trial court noted in denying the motion for new trial, the evidence in this case was “close” and would have supported a verdict for either the Plaintiffs or the Defendants. Thus, this is not a situation where we can say that even a misleading or coercive communication could not have affected the outcome of the proceedings because a verdict was only authorized for the Defendants.

Accordingly, we must view these unique circumstances together — (1) that the communication was not disclosed to the Plaintiffs or their counsel until after the verdict; (2) the note and response were not made a part of the record at the time it was made or thereafter; (3) the differing recollections about the nature and timing of the communication; (4) the fact that those differences were never resolved in the trial court by the judge who decided the motion for new trial; (5) the inability of the Plaintiffs to show what effect the communication had on the jury’s verdict; and (6) our inability to say that a verdict would have been demanded for the Defendants regardless of the effect of the communication on the jury. Thus, based on the foregoing considerations and under the particular circumstances of this case, we find that Plaintiffs are entitled to a new trial.

2. Plaintiffs also argue that the trial court erred in refusing to give its requested charge on spoliation of evidence. Because this issue will likely occur upon re-trial, we will also consider the trial court’s ruling on spoliation.

The record shows that Plaintiffs requested that the following charge be given to the jury:

Defendant Henry Medical Center destroyed the printed paper copy of the fetal heart rate tracing sometime after the delivery of Lee V. Phillips, IV. At the time Defendant Henry Medical Center destroyed the printed paper copy of the fetal heart rate tracing, Defendant Henry Medical Center was aware of the potential for litigation. The Plaintiffs are entitled to a presumption that the printed paper copy of the fetal heart rate tracing, which contained the handwritten notes that [nurse] Kim Jones made during the labor at issue in this case,[] would have been prejudicial to Defendant Henry Medical Center. The presumption maybe rebutted by Defendant Henry Medical Center.

The trial court declined to give the charge, finding that Defendants had “no knowledge or notice of potential litigation,” but allowed the parties to present evidence and argument concerning the notes made on the fetal monitor paper strip, the use of the strip in creating the official medical record, and the destruction of the strip.

“[Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” (Citation and punctuation omitted.) Silman v. Assocs. Bellemeade, 286 Ga. 27, 28 (685 SE2d 277) (2009).

The trial court has wide discretion in resolving spoliation issues, and we will not disturb its ruling absent abuse. A spoliation claim cannot be pursued unless the spoliating party was under a duty to preserve evidence. And our appellate courts have time and time again emphasized that to meet the standard, for proving spoliation, the injured party must show that the alleged tortfeasor was put on notice that the party was contemplating litigation. The simple fact that someone is injured..., without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation. In other words, notice of potential liability is not the same as notice of potential litigation.

(Citations and punctuation omitted; emphasis in original.) Whitfield v. Tequila Mexican Restaurant No. 1, Inc., 323 Ga. App. 801, 807 (6) (748 SE2d 281) (2013). See also Clayton County v. Austin-Powell, 321 Ga. App. 12, 17 (740 SE2d 831) (2013).

The following facts are relevant to the spoliation issue. At the time Phillips was delivered, the official medical records at Henry Medical were maintained in electronic form. Although the fetal monitor strips were not considered part of the official record, the nurses often took notes on the strips during the labor and delivery and would then refer back to the strips to complete the official record. Henry Medical maintained the strips for 30 days after a delivery, and then they were routinely destroyed. It is undisputed that the strips in this case were destroyed pursuant to this procedure.

It is likewise undisputed that at the time the paper tracings were destroyed, Henry Medical had not received any letters, calls, pleadings, or inquiries of any nature from the Plaintiffs that might have alerted Henry Medical that Plaintiffs were contemplating litigation. Accordingly, the trial court refused to give Plaintiffs’ spoliation charge in this case because Defendants did not have notice of pending or contemplated litigation at the time the paper copy of the fetal heart rate tracing was destroyed.

Plaintiffs argue, however, that the trial court erred in refusing to give its requested charge because Henry Medical’s actions after Phillips’ birth showed that it was contemplating litigation at the time it destroyed the records. In support of this contention, Plaintiffs point to the fact that Henry Medical triggered its Sentinel Events/Medical Errors/Disclosures policies and procedures (“Sentinel Events Policies”) immediately after Phillips’ birth and that, pursuant to those policies, it began an internal investigation and then notified its insurance carrier and contacted counsel a short time later. Plaintiffs argue that once the Sentinel Events Policies were triggered, Henry Medical was required to “obtain and/or preserve evidence, as appropriate (for example, photographs, equipment, supplies, etc.)” and to protect “[t]he medical record and other potential evidence ... as needed in anticipation of possible litigation.” Further, Plaintiffs argue that they presented evidence that risk management would “sometimes” request that the fetal monitor strips be preserved, although they were not requested here.

This Court has previously held that launching an internal investigation and taking certain steps pursuant to company policies do not, without more, equate to notice that litigation is contemplated or pending. Powers v. Southern Family Markets of Eastman, LLC, 320 Ga. App. 478, 479-480 (1) (740 SE2d 214) (2013). That is because “contemplation of potential liability is not notice of potential litigation.” Kitchens v. Brusman, 303 Ga. App. 703, 707 (1) (a) (694 SE2d 667) (2010) (notice of contemplated litigation when plaintiffs’ attorney had contacted defendants about viewing slides). See Austin-Powell, 321 Ga. App. at 17 (2); Watts & Colwell Builders, Inc. v. Martin, 313 Ga. App. 1, 5 (1) (720 SE2d 329) (2011) (completion of accident report does not demonstrate contemplated litigation); cf. The Kroger Co. v. Walters, 319 Ga. App. 52 (735 SE2d 99) (2012) (manager aware of potential litigation after potential plaintiff came back to the store and informed the manager he was going to the doctor); Wal-Mart Stores v. Lee, 290 Ga. App. 541, 544 (1) (659 SE2d 905) (2008) (notice provided by letter from plaintiff’s attorney attempting to settle and avoid litigation).

Moreover, we do not believe that Baxley v. Hakiel Indus., Inc., 282 Ga. 312 (647 SE2d 29) (2007), mandates a finding of spoliation here. In Baxley, our Supreme Court found proof of spoliation, after the bar manager questioned the bar staff about what they served a customer who had been involved in an accident when she left the bar, and then failed to preserve a recording that might have provided critical evidence concerning the manner in which the customer left the bar. Although defendant’s knowledge of potential or contemplated litigation was not directly spelled out in Baxley, our Supreme Court later explained Baxley, making it clear “the phrase ‘potential for litigation’ from Baxley refers to litigation that is actually ‘contemplated or pending,’ and nothing more.” (Emphasis supplied.) Silman, 286 Ga. at 28.

Further, evenif Henry Medical’s Sentinel Events Policies required it to preserve the official medical records, it is undisputed here that the paper monitoring strips were not considered part of the official electronic medical records at the time Phillips was born. And even if there had been directives issued to preserve the paper strips in prior incidents, there is absolutely no evidence that such a request had been made in this case.

Accordingly, Henry Medical did not have notice of pending or contemplated litigation at the time the paper monitor strips were destroyed, and the trial court did not abuse its discretion in refusing to give Plaintiffs’ requested charge on spoliation of evidence.

3. It is unnecessary, however, for us to consider Plaintiffs’ contention that Defendants improperly admitted evidence of collateral source benefits in violation of a motion in limine. The alleged benefits at issue are certain educational services and resources that must be provided under federal law to children with disabilities, and evidence of these benefits was elicited by Defendants during cross-examination of Phillips’ life care planner. Plaintiffs did not object to this evidence at the time it was introduced, and argue for the first time on appeal that it was not required to object to this testimony at trial because these services and resources were “benefits” from a collateral source that already had been ruled inadmissible pursuant to the grant of its motion in limine.

The issue of whether the services and resources at issue here constitute “benefits” from a collateral source as that term is used in this state is one of first impression, and the issue of the admissibility of this specific evidence was not raised or ruled upon below. Clearly, however, neither Plaintiffs nor Defendants will allow this case to be retried without bringing this issue to the attention of the trial court, who will then have the opportunity to rule on this evidentiary issue in the first instance.

Judgment reversed.

Ellington, P. J., concurs. Phipps, C. J., concurs fully in Divisions 1 and 3 and in judgment only as to Division 2.

Decided July 15, 2014 —

Reconsideration denied July 31, 2014 —

Wayne Grant, Kimberly W. Grant, Jonathan A. Parrish, for appellants.

Huff, Powell & Bailey, M. Scott Bailey, Anna Burdeshaw Fretwell, Hall Booth Smith, John E. Hall, Jr., Mark W. Wortham, Heather L. Saum, for appellees.

       “CNM” refers to a certified nurse midwife.

       The two jurors were concerned that another juror may have been sending and receiving text messages while they were deliberating. Plaintiffs originally raised this as an issue in their motion for new trial but have not asserted any claim of error arising from this juror’s alleged misconduct on appeal.

       That Code section provides:
      Where a trial in any civil or criminal case is reported by a court reporter, all motions, colloquies, objections, rulings, evidence, whether admitted or stricken on objection or otherwise, copies or summaries of all documentary evidence, the charge of the court, and all other proceedings which may be called in question on appeal or other posttrial procedure shall be reported; and, where the report is transcribed, all such matters shall be included in the written transcript, it being the intention of this article that all matters appear in the record. Where matters occur which were not reported, such as objections to oral argument, misconduct of the jury, or other like instances, the court, upon motion of either party, shall require that a transcript of these matters be made and included as a part of the record. The transcript of proceedings shall not be reduced to narrative form unless by agreement of counsel; but, where the trial is not reported or the transcript of the proceedings for any other reason is not available and the evidence is prepared from recollection, it may be prepared in narrative form.

        Kesterson was also a medical malpractice case where a child suffered neurological injuries allegedly caused by oxygen deprivation shortly before birth. Our Supreme Court ruled that the exclusion was improper under the facts of that case, holding that in light of a party’s fundamental and state constitutional right to be present during their trial, the trial court should have used other, less drastic means to ensure a fair trial.

       We do so with caution, recognizing that there are other constitutional rights, such as those guaranteed to criminal defendants by the Sixth Amendment, which are not implicated in civil cases. E.g., Lowery v. State, 282 Ga. 68, 73 (4) (b) (646 SE2d 67) (2007) (analyzing both a right to be present claim and an ineffective assistance of counsel claim arising out of the trial judge’s failure to inform or consult the defendant or his counsel prior to responding to the jury’s inquiry).

       We note that the Defendants and their counsel were also unaware of the communication. We thus make clear that our analysis would be the same if they, instead of the Plaintiffs, had suffered an adverse verdict.

       In Conley, appellants asserted a denial of their right to a fair and impartial jury when the jury was not qualified as to insurance carriers with a financial interest in the case. 294 Ga. at 549 (3) (b).

       The Court did note, however, the presumptively prejudicial standard applicable to criminal cases. Kesterson, 291 Ga. at 386.

       We also do not believe that Burtts v. State, 269 Ga. 402, 403 (3) (499 SE2d 326) (1998) and Reid v. State, 319 Ga. App. 782, 784 (2) (738 SE2d 624) (2013) are necessarily controlling here because both of those cases involved a question from the jury asking to rehear evidence and did not touch on the ability of the jury to render a verdict.

       It is noteworthy, however, that the court in Lowery declined to reverse the appellant’s conviction based on a denial of the right to be present, reasoning that appellant and his counsel were present for the trial court’s response to the jury’s question, and that appellant did not have the right to be present when his counsel and the trial court discussed the court’s response to the jury’s question. Lowery, 282 Ga. at 74 (4) (b) (i). But the Court went on to find that assuming the right to counsel includes the “right to have reasonable notice of a deliberating jury’s substantive communication and a meaningful opportunity to be heard” in response thereto, defendant’s Sixth Amendment right to counsel had been violated because counsel was not in fact informed of the contents of the note or allowed to have input prior to the trial court’s response. Id. at 74-75 (4) (b) (ii). Thus, we cannot ignore that the Court announced the procedure for handling judge/jury communications under the division analyzing appellant’s ineffective assistance of counsel claim, and that the procedure requires, among other things, that the trial judge inform counsel, not the party, about the contents of the note and seek counsel’s response before responding. But we stress that we are by no means holding here that the procedure set out in Lowery applies to civil litigants, who do not enjoy the same Sixth Amendment protections as criminal defendants. However, as set forth in more detail below, the wisdom of requiring civil trial courts to adhere to the Lowery mandate is aptly illustrated by this case, where neither the parties nor their attorneys were informed of the communication at any time during trial.

       We note that Lowery did not state that a failure to follow that procedure constituted per se reversible error, and in the post-Lowery cases of Grant v. State, 295 Ga. 126 (757 SE2d 831) (2014) and Humphreys v. State, 287 Ga. 63 (694 SE2d 316) (2010), the Supreme Court declined to reverse when the contents of the communication had been placed on the record but the mandates of Lowery had not been exactly followed. Thus, those cases do not involve the circumstance present here when there has been a complete failure to preserve the communication.

       Although we have no doubt the trial judge proceeded in good faith in entering an order supplementing the record pursuant to OCGA § 5-6-41 (d), that section does not precisely fit the circumstances here where there is an apparent disagreement between the recollections of the jury and the trial judge about a communication that occurred between them. Moreover, although OCGA § 5-6-41 (g) provides that the decision of the trial judge shall be final on a transcript prepared from recollection if the parties cannot agree, there is no similar mechanism for resolving an apparent conflict between the recollections of a trial judge and members of the jury. Further, it appears that the trial judge prepared the OCGA § 5-6-41 (d) order without input from the parties, and that the judge assigned after recusal did not resolve these apparent discrepancies in deciding the motion for new trial, finding instead that they were immaterial and irrelevant to his analysis.

       Once again, the analysis in that case was in the context of an ineffective assistance claim, this time for the failure of trial counsel to object to the “process” by which the judge responded to the jury inquiry and because trial counsel did not have a record made of the communication.

       The motion for new trial hearing was held shortly after the effective date of Georgia’s new Evidence Code, and OCGA § 24-6-606 applies to our analysis here. OCGA § 24-6-606 (b) provides:
      Upon an inquiry into the validity of a verdict or indictment, a juror shall not testify by affidavit or otherwise nor shall a juror’s statements be received in evidence as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon the jury deliberations or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith; provided, however, that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the juror’s attention, whether any outside influence was improperly brought to bear upon any juror, or whether there was a mistake in entering the verdict onto the verdict form.

       Plaintiffs’ basic contention is that the nurse would have noted what time CNM Harmon arrived in the delivery room in response to an emergency page issued after the fetal monitoring indicated that Phillips was experiencing sustained periods of bradycardia. Harmon’s response time was critical to Plaintiffs’ claim that Defendants failed to adhere to the appropriate standard of care.

       Although the trial court initially reserved ruling on the issue, it later denied the request to charge, and Plaintiffs objected to the failure to give the charge.

       “Potential sanctions to remedy the prejudice resulting from the spoliation of evidence include (1) a jury charge that spoliation of evidence creates the rebuttable presumption that the evidence would have been harmful to the spoliator; (2) dismissal of the case; or (3) the exclusion of testimony about the evidence.” Kelley v. Blue Line Carriers, LLC, 300 Ga. App. 577, 579 (1) (685 SE2d 479) (2009).

       Plaintiffs sought to exclude “[a]ny reference or suggestion that Plaintiffs have received, have been entitled to receive, will receive, or will become entitled to receive, benefits of any kind or character from a collateral source [.]” Defendants agreed that evidence of collateral source benefits should be excluded.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A14A0320.
    JOHNSON v. THE STATE.
    (760 SE2d 682)
   DOYLE, Presiding Judge.

Steven Mark Johnson was indicted for rape and aggravated assault. A Chatham County jury found him guilty of rape, but not guilty of aggravated assault. Johnson appeals the subsequent denial of his motion for new trial, arguing that the trial court erred by (1) denying his motion for a mistrial based on the admission of evidence that was not timely disclosed by the State; (2) admitting hearsay testimony; (3) admitting two prior convictions for impeachment purposes; and (4) sustaining the State’s objection to his closing argument. Johnson also argues that he received ineffective assistance of counsel. We affirm, for the reasons that follow.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia.[] This same standard applies to our review of the trial court’s denial of [the defendant’s] motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

So viewed, the evidence shows that on March 23, 2009, Johnson was living in the home of R. L., his ex-girlfriend and mother ofhis son; R. L.’s adult daughter, L. L., also lived in the home. At approximately 1:00 a.m., L. L. was at home alone with Johnson when he came out of the bedroom and directed her to rise from the couch. When L. L. asked him why, Johnson grabbed her by her neck and then tightened his hand until she “[saw] white lights,” telling her, “Get up before I kill you.” He then forced L. L. to go into her mother’s bedroom and lie face-down on the bed, pulled down her pants, and penetrated her vagina with his penis. Afterward, Johnson instructed L. L. to clean herself. L. L. went into the bathroom for a short period and then ran to a nearby friend’s home.

L. L. called her mother, screaming, and told her that Johnson had raped her. R. L. called 911, and state patrol officers responded to R. L.’s home and made contact with Johnson. Johnson seemed “very uneasy” and nervous, and while the officers were present, he spoke to R. L. on the telephone, telling her that “he was sorry.” The officers left Johnson at the house and then responded to the home to which L. L. had fled following the incident.

When they arrived, L. L. was “curled up on the floor, crying” and was initially “too hysterical” to respond to questioning. L. L. was transported to the hospital, where she told the treating physician that she had neck pain and “had been choked and sexually assaulted.” The doctor observed “four[,] small [,] superficial scratches” on L. L.’s neck, and medical personnel performed a sexual assault examination. Sperm DNA collected from cervical swabs of L. L. matched that of Johnson.

L. L. told police that Johnson choked her, threatened to kill her, and raped her. The police then returned to R. L.’s house, arrested Johnson, and took him to police headquarters for questioning. Johnson was cooperative, repeatedly asked if L. L. was okay, asked “I [did not] hurt her, did I?,” and stated that he had blacked out and did not know what happened. Johnson also told police, “I feel bad about this s-t here. How did I get myself into this s-t here?”

During the 2012 trial, the State introduced a 2009 letter from Johnson to R. L. in which Johnson apologized, explaining that he had “blacked out” after consuming drugs and alcohol. Johnson also wrote that because he had erectile dysfunction, there was “no way [he] could have penetrated [L. L.’s] vagina,” and “therefore, there’s no ‘[r]ape.’ ” At trial, Johnson admitted that he had sexual intercourse with L. L. on the night in question, but he stated that it was consensual, and he denied hitting or choking her. According to Johnson, L. L. came into his room, woke him, and removed her clothes. Johnson testified that L. L. did not seem upset afterward; he gave her money, but he “guess [ed] it [was not] the right amount or something.”

At the conclusion of the evidence, the jury found Johnson not guilty of aggravated assault and guilty of rape. Johnson was sentenced as a recidivist to life without parole. The trial court denied his subsequent motion for new trial, and this appeal followed.

1. Mistrial. Johnson argues that the trial court erred by denying his motion for mistrial based on the admission of his 2009 letter to R. L. This argument presents no basis for reversal.

At trial, after the victim testified, the State advised the trial court that R. L. had just produced a letter that Johnson had written her. Defense counsel objected to the introduction of the letter based on the State’s failure to notify Johnson about it ten days prior to trial as required by OCGA § 17-16-4 (a) (1). While this Code section requires the State to produce no later than ten days prior to trial any relevant written or recorded statements made by the defendant “within the possession, custody, or control of the state or prosecution . . . ,” OCGA § 17-16-4 (c) contemplates the discovery of additional evidence less than ten days before or during trial, requiring the State to promptly produce it to the defense.

Here, after reviewing the letter and discussing it with Johnson, defense counsel conceded there was no evidence of bad faith on the part of the State because it complied with OCGA § 17-16-4 (c) by promptly producing the newly discovered letter immediately upon receipt. Nonetheless, defense counsel argued that admission of the letter would prejudice Johnson because it

permeate[d] every aspect of preparation of the case, from the investigative phase, to the preparation for trial phase, to every decision made during the course of the trial and in preparation for trial, [] as far as whether the defendant would testify, whether we call any other witnesses of our own. It simply is too big of a matter to say, well, they became aware of it[,] and then [30] minutes later it was provided.

Defense counsel then moved for exclusion of the evidence or a mistrial. Although the trial court denied the motion, it released the jury for the remainder of the day in the early afternoon and did not reconvene the trial until 10:00 a.m. the following morning to allow defense counsel sufficient time to review and/or adjust his trial strategy in light of Johnson’s letter to R. L.

OCGA § 17-16-6, which sets forth the proper remedies for discovery violations, provides:

If at any time during the course of the proceedings it is brought to the attention of the court that the [Sjtate has failed to comply with the requirements of this article, the court may order the [S]tate to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the [S]tate from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. . . .

While the trial court could have granted a mistrial had it deemed it just under the circumstances, it was not an abuse of discretion to deny Johnson’s motion for mistrial and instead grant a continuance to permit the defense time to adjust his trial strategy in light of the letter, particularly given that Johnson wrote the letter.

2. Victim’s prior consistent statement. Johnson contends that the trial court erred by allowing testimony by a state trooper regarding L. L.’s out-of-court statements to him.

During direct examination of the trooper, the State asked him whether L. L. had told him what happened to her. Defense counsel objected on the basis that such testimony was inadmissible hearsay, but the trial court overruled the objection and permitted the trooper to testify that L. L. told him that Johnson had raped her and to relay the details of her version of events. Admission of the trooper’s testimony was erroneous.

A witness’s prior consistent statement is admissible 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. A witness’s veracity is placed in issue so as to permit the introduction of a prior consistent statement if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination.

“[T]o be admissible to refute the allegation of [fabrication], the prior statement must predate the alleged fabrication, influence, or motive.”

Here, although defense counsel argued that L. L. had consensual sex with Johnson and then immediately fabricated the rape allegation because of guilt and concern about how her mother would feel, there was no affirmative charge of recent fabrication. The State did not elicit testimony from the trooper about L. L.’s statements to rehabilitate her after the defense attacked her veracity; instead, the State elicited the testimony during its direct examination of the witness simply to bolster the victim’s credibility. Thus, the trial court erred by admitting the trooper’s testimony regarding L. L.’s prior consistent statements.

Nevertheless, we conclude that admission of the trooper’s testimony does not require reversal. “[T]he erroneous admission of [a] witness’s hearsay statement is reversible error if it appears likely that the hearsay contributed to the guilty verdict.” Here, the State also introduced the unchallenged testimony of the emergency room physician that L. L. stated that she had been raped and choked. Given this evidence, along with the scratches on L. L.’s neck, the conflicts between Johnson’s letter to R. L. and his trial testimony, and the DNA evidence, it is unlikely that the erroneously admitted hearsay contributed to the verdict.

3. Prior convictions. Johnson also argues that the trial court erred by allowing the State to introduce two prior convictions for impeachment purposes under former OCGA § 24-9-84.1.

(a) Burglary. Johnson challenges the admission of his 2004 conviction for burglary, for which he was serving a prison sentence at the time of the 2012 trial in the instant case, arguing that it was unfairly prejudicial and created a danger that the jury would consider it for an improper purpose.

Pursuant to former OCGA § 24-9-84.1 (a) (2), “evidence of a defendant’s felony conviction that was less than ten years old was admissible if the probative value of the evidence substantially outweighed its prejudicial effect to the defendant.” In Clay v. State, our Supreme Court recognized five factors that trial courts should consider when conducting the balancing analysis:

(1) the nature, i.e., impeachment value of the crime; (2) the time of the conviction and the defendant’s subsequent history; (3) the similarity between the past crime and the charged crime, so that admitting the prior conviction does not create an unacceptable risk that the jury will consider it as evidence that the defendant committed the crime for which he is on trial; (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility issue.

The trial court’s finding that the probative value of the prior conviction outweighed its prejudicial effect must be made on the record, but there is “no requirement in the language of [former] OCGA § 24-9-84.1 (a) (2) that the trial court must list the specific factors it considered in ruling on the probity of convictions that are not more than ten years old.”

Here, however, after hearing argument from both sides regarding whether the probative value of the burglary conviction outweighed the prejudicial effect, the trial court simply granted the State’s motion to admit it, without further explanation.

Thus, we cannot determine whether the trial court in this case engaged in any meaningful analysis of the relevant factors or whether the court balanced the probative value against the prejudicial effect to [Johnson]. Accordingly, we are constrained to find that the trial court erred.

Nevertheless, “such an error does not require a new trial if the error is harmless.” In this case, L. L., who was hysterical when police arrived, made an immediate outcry to her mother, multiple officers, and the emergency room physician, who observed minor scratches on L. L.’s neck, consistent with her allegation that Johnson grabbed her neck and choked her before raping her. Further, the sexual assault examination revealed the presence of Johnson’s DNA on L. L.’s cervical swabs taken the night of the alleged rape. Given these circumstances, “we find that there is no reasonable probability that the results of the trial would have differed if the evidence of [Johnson’s 2004] burglary conviction had been excluded.”

(b) Terroristic threats. Johnson challenges the admission of his 1989 conviction for terroristic threats. Pursuant to former OCGA § 24-9-84.1 (b), evidence of a defendant’s conviction older than ten years was only admissible if the court determined

in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. ... [A] trial court must make an on-the-record finding of the specific facts and circumstances upon which it relies in determining that the probative value of a prior conviction that is more than ten years old substantially outweighs its prejudicial effect before admitting evidence of the conviction for impeachment purposes under [former] OCGA § 24-9-84.1 (b).

“In determining the admissibility of similar crimes evidence, a trial court exercises its discretion in deciding whether the probative value of the evidence outweighs the danger of any prejudicial effect to the defendant.”

Here, although the trial court did not make such an on-the-record finding during the trial, it entered an order after sentencing, specifically indicating therein that it considered the five factors set forth in Clay. The court concluded that given the nature of the charges in this case and the fact that the credibility of the victim and the defendant were central to the issues, the probative value of the terroristic threats conviction substantially outweighed any prejudicial effect. The trial court also noted that although the State also sought to introduce two other more “serious” convictions that were older than ten years, the trial court decided to admit only the terroristic threats conviction in order to limit the risk of prejudice to Johnson. Under these circumstances, we find no abuse of discretion in the trial court’s admission of the prior terroristic threats conviction for impeachment purposes.

4. Closing arguments. Next, Johnson argues that the trial court erred by sustaining the State’s objection during defense counsel’s closing statement. We find no basis for reversal.

During closing, defense counsel stated, “Throughout history, there have been numerous famous instances of false cries of rape. We don’t have to look back many years ago to remember when the Duke lacrosse players were all charged with rape —The State objected, arguing that “[t]he law restricts attorneys, in arguments, from talking about the facts of specific famous cases, and that’s where we were going,” and the trial court sustained the objection.

“ ‘An attorney is entitled to argue all reasonable inferences arising from the evidence presented in the trial.’ ”

Analogizing a defendant or a defendant’s case to another well-known defendant or case is permissible during argument if the analogy is supported by facts in evidence. We have long held that counsel may make use of well-established historical facts in his argument and make full use of illustrations as long as he does not introduce extrinsic and prejudicial matters which have no basis in the evidence in the case.

Here, Johnson’s defense was that the sex was consensual and that L. L. fabricated the rape charges. Thus, defense counsel’s analogy of this case to a case involving false allegations of rape was permissible, and the trial court erred by sustaining the State’s objection thereto.

Despite the trial court’s error, however, Johnson has failed to establish harm.

A presumption of harm requiring the grant of a new trial accompanies the abridgement of the right to make a closing argument, and that presumption is overcome when the denial of the right is not complete and only in those extreme cases in which the evidence of a defendant’s guilt is so overwhelming that it renders any other version of events virtually without belief.

Here, Johnson’s right to make a closing argument was not completely abridged; defense counsel repeatedly argued that the victim falsely accused Johnson of rape based on her shame and guilt resulting from her voluntary sexual activity with her mother’s boyfriend. And the court permitted counsel to compare the case with To Kill a Mockingbird and a biblical story involving false allegations of rape. In light of this and considering the DNA evidence, the victim’s testimony and immediate outcry, the scratches on her neck, and the inconsistencies in Johnson’s trial testimony and his statements in the letter to the victim’s mother, we conclude that the evidence against Johnson was overwhelming, and the trial court’s error in limiting his closing argument was therefore harmless.

5. Ineffective assistance of counsel. Under Strickland v. Washington,

[i]n order to establish ineffectiveness of trial counsel, appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, we give deference to the trial court’s factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court’s legal conclusions de novo.

“If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.”

(a) Johnson argues that he was denied effective assistance of trial counsel because counsel failed “to make all of the proper arguments” or to remind the court thereof in support of his motion for a mistrial following the admission of his letter to R. L. As we concluded in Division 1, the trial court did not abuse its discretion by denying the motion for mistrial. “[I]t is not ineffective assistance for trial counsel to fail to make a meritless objection.” Thus, Johnson has failed to demonstrate that trial counsel’s performance was deficient.

(b) Johnson contends that trial counsel was ineffective for failing to object to a detective’s hearsay testimony regarding the victim’s out-of-court statements. As it did with the trooper (see Division 2), the State asked another of its witnesses, a detective, what L. L. told him had happened to her. Trial counsel did not object to the detective’s testimony, and the detective testified in detail regarding L. L.’s statements regarding the rape.

As we concluded in Division 2 with regard to the trooper’s testimony, admission of L. L.’s prior consistent statement to the detective was erroneous under the former version of Georgia’s Evidence Code, given the lack of affirmative charges of recent fabrication, improper influence, or improper motive; therefore, trial counsel was deficient by failing to object to the testimony. The fact that two separate witnesses testified regarding the victim’s prior consistent statements is particularly troublesome. Nevertheless, Johnson has failed to demonstrate that “a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different.” The evidence, including L. L.’s outcry immediately after the rape, her statement to the emergency room doctor, the scratches on her neck, the DNA evidence, and Johnson’s subsequent letter to R. L. (as compared to his trial testimony) constituted overwhelming evidence of guilt. Thus, Johnson has failed to demonstrate prejudice.

(c) Similarly, Johnson argues that trial counsel was ineffective by failing to preserve his objections to the introduction of the two prior convictions admitted for impeachment purposes. For the reasons explained in Division 3, the admission of the convictions was harmless, and therefore Johnson has failed to establish prejudice.

(d) Johnson maintains that trial counsel was ineffective by failing to object to the trial court’s limiting instruction regarding admission of his prior convictions. Specifically, Johnson alleges that the trial court read the entire pattern jury instruction, improperly including language instructing the jury that it could consider the prior convictions as they may relate to the required element of conviction of a felony, instead of restricting the jury’s consideration of the convictions to the issue of impeachment. Pretermitting whether trial counsel’s failure to object to the instruction was deficient, Johnson “has failed to establish that but for such objection there was a reasonable probability that the outcome of the trial would have been different.”

Decided July 15, 2014 —

Reconsideration dented July 31, 2014 —

Steven L. Sparger, for appellant.

Meg jE. Heap, District Attorney, Jennifer P. Guyer, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, C. J., Andrews, P. J., Barnes, P. J., Ellington, P. J., Miller, Dillard, McFadden, Boggs, Ray, Branch and McMillian, JJ., concur.

       OCGA § 16-6-1 (a).

       OCGA § 16-5-21 (b) (2).

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

       (Footnotes omitted.) Stephens v. State, 247 Ga. App. 719 (545 SE2d 325) (2001).

       R. L.’s daughter-in-law gave the letter to an employee in the district attorney’s office in the hallway outside the courtroom during the trial, less than 30 minutes before the prosecutor raised the issue in court. According to R. L., she had not previously disclosed the letter or its contents to anyone in the district attorney’s office.

       (Emphasis supplied.) OCGA § 17-16-4 (a) (1).

       During opening statements, defense counsel stated that “Johnson is not guilty of rape. Whatever sex happened . . . was between two consenting adults.”

       Defense counsel further objected to prejudicial information contained in the letter, including bad character evidence regarding Johnson’s prior incarceration. Portions of the letter, however, were redacted prior to the publication of the letter to the jury, and Johnson does not argue this issue on appeal. Nor does Johnson attempt to explain how the State’s disclosure of a letter that he wrote was a surprise.

       Our Supreme Court has held that “even if there is no showing of bad faith and prejudice, the trial court may declare a mistrial upon a determination that it is just under the circumstances.” Tubbs v. State, 276 Ga. 751, 753 (2) (583 SE2d 853) (2003). We disapprove language in any case that is inconsistent with this holding in Tubbs, including Gore v. State, 277 Ga. App. 635, 640 (3) (627 SE2d 198) (2006) (stating that “even if the State had breached its discovery obligation, OCGA § 17-16-6 authorizes a mistrial only if the defendant shows prejudice and bad faith”). To the extent that it can be read to require a showing of bad faith and prejudice in order to grant a mistrial upon a discovery violation, we also disapprove language in Johnson v. State, 281 Ga. App. 455, 457 (1) (636 SE2d 178) (2006), which cites Gore, 277 Ga. App. at 640 (3).

       See Glenn v. State, 278 Ga. 291, 296 (5) (602 SE2d 577) (2004); Day v. State, 302 Ga. App. 883, 884 (1) (691 SE2d 920) (2010); Dixon v. State, 252 Ga. App. 385, 387 (3) (556 SE2d 480) (2001).

       (Punctuation omitted.) Duggan v. State, 285 Ga. 363, 366 (2) (677 SE2d 92) (2009).

       (Punctuation omitted.) Moon v. State, 288 Ga. 508, 511 (4) (705 SE2d 649) (2011), quoting Mister v. State, 286 Ga. 303, 306 (4) (687 SE2d 471) (2009).

       See Baugh v. State, 276 Ga. 736, 738-739 (2) (585 SE2d 616) (2003).

       (Punctuation omitted.) Id. at 739 (2).

       See former OCGA § 24-3-4 (“Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admissible in evidence.”); Miller v. State, 325 Ga. App. 764, 772 (4) (c) (754 SE2d 804) (2014); Miller v. State, 194 Ga. App. 533, 534 (2) (a) (390 SE2d 901) (1990).

       See Character v. State, 285 Ga. 112, 120 (6) (674 SE2d 280) (2009); Grant v. State, 326 Ga. App. 121, 129 (4) (756 SE2d 255) (2014); Donald v. State, 312 Ga. App. 222, 226-227 (2) (718 SE2d 81) (2011).

       Because this case was tried before 2013, the new Evidence Code does not apply. See Ga. L. 2011, pp. 99,214, § 101. For impeachment by prior convictions under the new Evidence Code, see OCGA § 24-6-609 (a) (1).

       (Emphasis in original.) Waye v. State, 326 Ga. App. 202, 205 (3) (756 SE2d 287) (2014).

       290 Ga. 822 (725 SE2d 260) (2012).

       Id. at 835 (3) (B).

       (Emphasis in original.) Id. at 836-837 (3) (B).

       Although the trial court subsequently entered a post-trial order with regard to the prior conviction for terroristic threats, it did not do so for the burglary conviction.

       (Punctuation and footnote omitted.) Crosby v. State, 319 Ga. App. 459, 465-466 (3) (735 SE2d 588) (2012) (physical precedent only), quoting Quiroz v. State, 291 Ga. App. 423, 428-429 (4) (662 SE2d 235) (2008).

       Id. at 466 (3).

       Id., citing Holden v. State, 314 Ga. App. 36, 39 (2) (722 SE2d 873) (2012). See also Lawrence v. State, 305 Ga. App. 199, 203 (3) (699 SE2d 406) (2010).

       (Citation and punctuation omitted.) Clay, 290 Ga. at 834 (3) (A), 837-838 (3) (B).

        Newsome v. State, 289 Ga. App. 590, 594 (2) (657 SE2d 540) (2008).

       See McNabb v. State, 292 Ga. App. 395, 397-398 (1) (664 SE2d 800) (2008). We reject Johnson’s argument that the prior terroristic threats conviction — a crime punishable by-imprisonment of one year or more pursuant to OCGA § 16-11-37 (c) — was inadmissible because it was not a crime involving dishonesty or the making of a false statement; there is no such requirement in subsections (a) (2) or (b) of former OCGA § 24-9-84.1. See Walker v. State, 294 Ga. 752, 755-756 (2) (b) (755 SE2d 790) (2014).

        Palma v. State, 280 Ga. 108, 110 (2) (624 SE2d 137) (2005), quoting Glenn v. State, 279 Ga. 277, 279 (2) (b) (612 SE2d 478) (2005).

       (Citation and punctuation omitted.) Carr v. State, 267 Ga. 547, 555 (7) (a) (480 SE2d 583) (1997), citing Robinson v. State, 257 Ga. 194 (4) (357 SE2d 74) (1987).

       See Head v. State, 276 Ga. 131, 135 (6) (575 SE2d 883) (2003).

       (Punctuation omitted.) Palma, 280 Ga. at 110 (2), quoting Hendricks v. State, 277 Ga. 61, 63 (3) (586 SE2d 317) (2003).

       See Head, 276 Ga. at 135 (6).

       See Head, 276 Ga. at 136 (6); Hayes v. State, 268 Ga. 809, 813-814 (7) (493 SE2d 169) (1997). Compare Palma, 280 Ga. at 110 (2).

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

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

       (Citations and punctuation omitted.) Roberts v. State, 322 Ga. App. 659, 664 (3) (745 SE2d 850) (2013).

       Id. at 665 (3) (d).

       See id.

       (Punctuation omitted.) Williams v. State, 327 Ga. App. 283, 287 (3) (b) (758 SE2d 620) (2014) (recognizing that “[when] determining whether the admission of evidence about [a witness’s] prior consistent statements contributed to the verdict, we may not rely on the fact that he gave testimony at trial that was consistent with the prior statement that should not have been introduced, as the very nature of the error in admitting the prior consistent statement is that it is repetitive of that to which he has testified”) (punctuation omitted).

        See Lynch v. State, 291 Ga. 555, 557 (2) (b) (731 SE2d 672) (2012); Williams, 327 Ga. App. at 286-287 (3) (b).

       See Roberts, 322 Ga. App. at 665 (3) (d).

       Id. at 665 (3) (c).