author: DOYLE, Presiding Judge. MCFADDEN, Judge,

text:
    A13A0991.
    PHILLIPS v. THE STATE.
    (751 SE2d 526)
   DOYLE, Presiding Judge.

Following a bench trial, Brett Robert Phillips was convicted of driving under the influence with an unlawful blood alcohol level (“DUI per se”). He appeals, arguing that the trial court erred by requiring him to proceed to trial without material and necessary evidence. We affirm, for the reasons that follow.

Viewed in favor of the verdict, on March 3, 2006, a state trooper observed Phillips’s car stopped at a red light without the headlights on. When the light turned green, Phillips accelerated rapidly, causing his tires to spin and the back of his vehicle to zigzag. The officer initiated a traffic stop, and when he approached Phillips, he noticed that Phillips’s eyes were red and glassy, and the officer noted the odor of alcohol emanating from Phillips’s vehicle. Phillips initially denied drinking alcohol, but then admitted that he had consumed a beer. The officer administered field sobriety tests, and Phillips exhibited all six clues indicative of alcohol intoxication during the horizontal gaze nystagmus test, two of eight possible clues during the walk-and-turn test, and two of four clues during the one-legged stand test. A road-side preliminary test of Phillips’s breath registered positive for alcohol. The officer placed Phillips under arrest, and Phillips subsequently registered blood alcohol levels of 0.138 and 0.127 in two consecutive consensual breath tests administered on an Intoxilyzer 5000.

Phillips was charged with DUI per se, driving under the influence of alcohol to the extent it was less safe to do so (“DUI less safe”), and laying drags. On January 28,2008, Phillips filed a motion for an order to produce the computer “source code” for the Intoxilyzer 5000. Thereafter, on April 25, 2012, the trial court issued a certificate pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without the State, codified at former OCGA § 24-10-94 (a), certifying that CMI, Inc., the Kentucky company that manufactured the Intoxilyzer 5000, “is a material witness in possession of . . . the computer source code for the Georgia version of the Intoxilyzer 5000[, which] source code is material because it is logically connected with the issues in this case.” On the same day, the trial court entered an order directing Phillips to deliver the certificate to the appropriate Kentucky court, “without delay, and to file with [the trial cjourt proof of such delivery in due course”; the trial court specially set the case for trial at least 90 days from the order to allow Phillips an opportunity to secure an order from the Kentucky court. On August 27, 2012, the trial court issued a trial calendar notice scheduling the trial for September 13, 2012.

On August 28, 2012, Phillips filed a notice of filing of a July 16, 2012 order from the Daviess County, Kentucky Circuit Court addressing Phillips’s and multiple other petitioners’ motions seeking discovery of the Intoxilyzer 5000 source codes, stating in relevant part:

1. Each of the Georgia Certificates . .. are defective on their face. All of them seek discovery, which is not a proper purpose for the Uniform Act.
2. Each Georgia Certificate . . . fails to particularize any underlying facts showing how disclosure of the source code is “material” to any particular defendant’s DUI test or any defendant’s claim or defense in a particular DUI case. Instead, the discovery is directed toward providing a defense expert the opportunity to review the source code for purposes of a potential later challenge in the Georgia DUI court.
3. Each Georgia Certificate ... seeks discovery of the source code, in electronic format, from CMI. Thus, an appearance by a CMI witness is not “necessary” for any specific Court appearance by CMI in any Georgia defendant’s DUI case in Georgia. Further, Georgia DUI defendants have alternative means available to test an Intoxilyzer 5000 used in a specific defendant’s case in Georgia.
4. This Court reaffirms its previous holding, in prior cases before this Court, that the source code is a trade secret and otherwise constitutes confidential business information of CMI. Even if the Georgia Certificates . . . were otherwise sufficient, it would be an undue hardship for CMI to produce the source code, in electronic format or otherwise, unless pursuant to a Protective Order.
5. CMI has agreed to waive the facial defects in each of the Georgia Certificates ... and to provide electronic disclosure of the source code to each of the Georgia Petitioners, and Intervening Petitioners, herein. This would be done at CMI’s offices in Owensboro, Kentucky, pursuant to the Protective Order attached hereto. . . .

Phillips also filed a notice of filing a copy of the notice of appeal of the July 16, 2012 order filed in the Court of Appeals of Kentucky.

On September 13, 2012, the day of the specially set trial, Phillips filed a motion to correct his certificate of materiality. When the trial court asked if the parties were ready to proceed to trial, defense counsel responded that he was not ready because they did not have the source code information from CMI, acknowledging that he did not know how long it would take the Kentucky court to resolve his appeal, but noting that it did not have a two-term rule. After hearing argument of counsel, the trial court required the trial to proceed, stating that the case was first reset on January 30, 2008, more than four years before, and noting that the Kentucky court found not only that the certificate was defective, but also concluded that the discovery requests would cause an undue hardship.

On appeal, Phillips contends that the trial court erred by requiring him to proceed to trial without the source code and other requested information from CMI. We discern no basis for reversal.

First, Phillips argues that the trial court violated his rights to compulsory process by requiring him to proceed to trial without the witnesses and documents he sought from CMI. This argument is without merit. As the Supreme Court of Georgia explained in Davenport v. State:

A Georgia court has authority to compel the attendance at a Georgia criminal trial of persons anywhere within Georgia; [] however, process issued by Georgia courts does not have extraterritorial power. The Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings ... is intended to provide a means for state courts to compel the attendance of out-of-state witnesses at criminal proceedings. . . . Georgia’s version of the Uniform Act, [] is the statutory means by which a witness living in a state other than Georgia can be compelled to attend and testify at a criminal proceeding in Georgia []. . . . While the statute speaks only to securing the attendance of an out-of-state witness, the scope of the statute has been construed in Georgia and several other states to authorize issuance of a summons that requires the out-of-state witness to bring items or documents with the witness.

As the Davenport Court explained, a Georgia court presented with a request for a certificate pursuant to the Act requesting the attendance in Georgia of an out-of-state witness and evidence solely has the task of determining whether the witness “is a material witness in a prosecution pending in a court of record in Georgia, and whether the state in which the out-of-state witness is located has laws for commanding persons within its borders to attend and testify in criminal prosecutions in this state.” Then,

[i]f those criteria are satisfied, the Georgia trial judge may issue a certificate under seal that is then presented to a judge of a court of record in the out-of-state county in which the witness is found. Upon presentation of the certificate, the out-of-state judge holds a hearing at which the witness has been ordered to appear; to determine whether to issue a summons directing the witness to attend and testify in the Georgia criminal proceeding.

Here, the trial court considered the motion, and issued the certificate, which was then presented to the Kentucky court. It was then for the Kentucky court to decide whether the witnesses and evidence were material and necessary and should have been compelled. Thus, the Georgia trial court had no authority to compel the witness.

Absent a finding that the Kentucky court lacked jurisdiction (there is no such allegation here), the Kentucky order was entitled to full faith and credit pursuant to Article 4, Section 1 of the United States Constitution. Although Phillips argues that the trial court should have waited until his appeal had been resolved, there is nothing in the record to indicate that the Kentucky appellate court issued a supersedeas of the order, and therefore, the Kentucky trial court’s order was enforceable.

We also reject Phillips’s claim that the materials he sought from CMI constituted Brady material and that his failure to obtain them violated his due process rights. To establish a Brady violation, the defense must show

(1) that the State possessed evidence favorable to the defense; (2) that the defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.

Phillips has not met his burden of establishing the first, third, or fourth factors, and therefore, this argument fails.

Finally, we find meritless Phillips’s argument that the trial court’s failure to continue the trial violated his Sixth Amendment right to confront the witnesses against him, in this case, the Intoxilyzer itself. “The Confrontation Clause prohibits the introduction of only ‘testimonial statements of witnesses absent from trial.’ ” As the Supreme Court of Georgia has held,

an inspection certificate [of the instrument used to conduct a breath test] prepared under OCGA § 40-6-392 (f) was not testimonial and was admissible. An inspection certificate is a record made and promulgated in the regular course of business. It is not made in an investigatory or adversarial setting; nor is it generated in anticipation of the prosecution of a particular defendant. It follows that an inspection certificate is not testimonial hearsay. . . .

This rationale applies to the “testimony” of the Intoxilyzer 5000 in this case, as well as the employee witnesses and documentation Phillips sought from CMI.

“[A] motion for continuance is addressed to the sound discretion of the trial judge, and the refusal to grant a continuance will not be disturbed by the appellate courts unless it clearly appears that the judge abused his discretion in this regard.” Here, the trial court granted a certificate pursuant to OCGA § 24-10-94 (2012) to permit the defense an opportunity to obtain the information and witnesses sought from CMI, specially set the case with enough time for the defense to do so, and after the Kentucky court issued an order denying Phillips’s request for the information, which order was entitled to full faith and credit, required Phillips to proceed to trial. Under these circumstances, we find no abuse of discretion.

Decided November 15, 2013

Head, Thomas, Webb & Willis, William C. Head, for appellant.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Boggs, J., concurs. McFadden J., concurs fully and specially.

MCFADDEN, Judge,

concurring fully and specially.

I concur fully in the majority opinion. I write separately to note that the Kentucky trial court failed to extend to the decisions of our trial courts the full faith and credit to which they are entitled. The Uniform Act to Secure the Attendance of Witnesses from Without the State provides, in this case, for proceedings in trial courts in Georgia and Kentucky and for separate exercises of discretion by trial courts in each state. The Kentucky trial court overstepped when it declared the decisions of our trial courts “defective on their face.”

       OCGA § 40-6-391 (a) (5).

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

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-251 (a).

       See Davenport v. State, 289 Ga. 399, 403 (711 SE2d 699) (2011), citing Black’s Law Dictionary (8th ed. 2004) (holding that a “ ‘material witness’ ” is “ ‘a witness who can testify about matters having some logical connection with the consequential facts, esp. if few others, if any, know about these matters.’ ”).

       The Kentucky order addressed 20 petitions from defendants facing DUI prosecutions in Georgia, including Phillips.

       Phillips also filed the affidavit of defense counsel’s law clerk averring that she served CMI by serving the Georgia Secretary of State with copies of an April 27, 2012 subpoena pursuant to OCGA § 14-2-1510 (b), seeking the source codes and various other information relating to a specific Intoxilyzer 5000.

       See Davenport, 289 Ga. at 399, quoting Pennsylvania v. Ritchie, 480 U. S. 39, 56 (107 SCt 989, 94 LE2d 40) (1987) (“The Sixth Amendment to the U.S. Constitution and Article I, Sec. I, Par. XIV of the Georgia Constitution guarantee a Georgia criminal defendant the right to compulsory process for obtaining witnesses in his defense. ‘Criminal defendants have the right to the government’s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.’ ”) (punctuation omitted).

       Id.

       OCGA §§ 17-7-191, 24-10-21 (2012).

       OCGA § 24-10-90 et seq. (2012).

       OCGA § 24-10-94 (a) (2012).

       (Citations, punctuation and footnote omitted.) Davenport, 289 Ga. at 400-401.

       (Punctuation omitted.) Id. at 401.

       (Citation and punctuation omitted; emphasis supplied.) Id. at 401, citing OCGA § 24-10-92 (b) (2012); Ky. Rev. Stat. Ann. § 421.240 (2).

       We note that Phillips’s arguments that the Kentucky court failed to hold a hearing on necessity and materiality in violation of the Uniform Act and lacked jurisdiction to enter the protective order are properly addressed to the Kentucky courts, and they do not provide a basis to require the trial court to postpone Phillips’s DUI trial.

       See, e.g., Veazey v. Veazey, 246 Ga. 376, 377 (271 SE2d 449) (1980).

       See Ferster v. Ferster, 220 Ga. 319, 322 (2) (138 SE2d 674) (1964) (custody dispute).

        Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963).

        Zant v. Moon, 264 Ga. 93, 100 (3) (440 SE2d 657) (1994).

       See id.

       (Emphasis in original.) Smith v. State, 284 Ga. 304, 308 (3) (c) (667 SE2d 65) (2008), citing Whorton v. Bockting, 549 U. S. 406 (127 SCt 1173, 167 LE2d 1) (2007).

       (Citation omitted.) Rackoff v. State, 281 Ga. 306, 309 (2) (637 SE2d 706) (2006).

        Campbell v. State, 231 Ga. 69, 74 (2) (200 SE2d 690) (1973).

       We note that at the time of trial, the case had been pending for more than six years, and defense counsel had filed approximately twenty leaves of absence.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A13A1150.
    BOWMAN v. THE STATE.
    (751 SE2d 532)
   BARNES, Presiding Judge.

Following the denial of his motion for new trial, Demetrius Bowman appeals his convictions for armed robbery, aggravated assault, aggravated battery and three counts of possession of a firearm during the commission of a crime. Bowman’s convictions were the result of his involvement in a home invasion. On appeal, Bowman does not challenge the sufficiency of the evidence. He contends instead that his custodial statements were not knowing and voluntary and thus were admitted into evidence in violation of his Fifth Amendment right against self-incrimination, and that his trial counsel was ineffective. Upon our review, we affirm.

1. Bowman first asserts that his custodial statements were admitted in violation of his Fifth Amendment right against self-incrimination. Bowman, who was 16 when he gave his custodial statement, contends that the trial court should not have considered the factors set forth in Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976), in ruling that his statements were admissible. Riley addresses a juvenile’s waiver of his Miranda rights while in police custody, but Bowman contends that the Riley factors do not apply here because his guardians did not consent in his presence to his police interrogation. Bowman maintains that his custodial statements were not knowing and voluntary because, as a minor, he should have been present when his guardians consented to him being interviewed by the police. Because he was not present when they consented, Bowman argues that he had no way of knowing what his guardians had been told, whether they had been informed of his Miranda rights, or whether they had actually consented at all.

While Bowman contends that Riley does not apply because his guardians did not consent in his presence to the custodial interview, the Supreme Court of Georgia adopted the nine-factor analysis in Riley as a method for determining whether a juvenile made a knowing and voluntary waiver of his right to remain silent when he gave an incriminating statement outside his parents’ presence. Riley v. State, 237 Ga. at 128. The presence or absence of a parent when the statement was made is simply one factor to be considered in determining whether the statement was voluntary and admissible; it is not dispositive of the issue, as Bowman appears to suggest. See Allen v. State, 283 Ga. 304, 306 (2) (a) (658 SE2d 580) (2008) (the fact that mother was not present during custodial interview was a factor for the trial court to consider, but it was not determinative on the issue of voluntariness). It is well accepted, however, that

confessions of juveniles must be scanned with more care and received with greater caution than those of adults. The question of a voluntary and knowing waiver depends on the totality of the circumstances, and the State has a heavy burden in showing that the juvenile did understand and waive his rights. However, as our Supreme Court has further explained, age alone is not determinative of whether a person can waive his rights. Instead, the question of waiver must be analyzed by a consideration of several factors. Those factors include (1) age of the accused; (2) education of the accused; (3) knowledge of the accused as to both the substance of the charge and the nature of his rights to consult with an attorney and remain silent; (4) whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) methods used in interrogations; (7) length of interrogations; (8) whether vel non the accused refused to voluntarily give statements on prior occasions; and (9) whether the accused has repudiated an extra judicial statement at a later date.

(Citations and punctuation omitted.) Boyd v. State, 315 Ga. App. 256, 256-257 (1) (726 SE2d 746) (2012).

Here, after the victim of a home invasion identified Bowman from his nickname “Peanut” and in a photographic lineup, police stopped the car in which Bowman was riding with his uncle and arrested him. The police impounded the car, but drove Bowman’s uncle home. There, they told the uncle and grandmother, who were Bowman’s guardians, about Bowman’s suspected involvement in the home invasion, and received consent to search Bowman’s room and consent to question Bowman. Police recovered a gun under Bowman’s mattress, and his uncle told the officers that he knew the gun had not been there a few days before because he had changed the sheets on the bed.

Bowman was interviewed at the police station after being read his juvenile Miranda rights and consenting to the interview. He denied having anything to do with the robbery. He also said that he had not been on the street where the incident occurred for four months, denied having the nickname “Peanut,” and denied having a weapon. He later admitted to being on the victim’s street the day before the home invasion and that he was sometimes called “Peanut.” He also told officers that he had a gun and that he had purchased it as protection from a drug dealer to whom he owed money.

After conducting a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964), the trial court applied the Riley analysis and concluded that Bowman’s statement was admissible. The evidence demonstrated that Bowman was four months shy of his seventeenth birthday, and that he appeared to understand his juvenile Miranda rights when an officer explained them to him, including the right to talk with an attorney and have an attorney present when he was questioned. Bowman also read the juvenile Miranda rights out loud, and appeared to understand the charges against him. He told officers that he would talk with them without a lawyer present, and did not request the presence of his grandmother or uncle during the interview. The officers testified that there were no offers or promises made to Bowman in exchange for his statements, nor were there threats of injury. The interview lasted approximately 35 to 45 minutes. Bowman does not repudiate the truth of his statements, but instead challenges their admissibility based on the alleged absence of a valid consent in the presence of his guardians. In these circumstances,

[t]he trial court was entitled to determine the credibility of the witnesses and to believe the officers, and its findings were not clearly erroneous. That [Bowman] was interviewed outside the presence of his [guardians], although a factor to be considered by the trial court, did not preclude the admission of his statement.... [Bowman] was only [four] months shy of the age of seventeen, at which time he would not have been considered a juvenile by the criminal justice system. Rather, [Bowman’s] age and other factors ... are consistent with his statement having been voluntarily made following a knowing and intelligent waiver of his rights. Accordingly, we conclude that the trial court, upon due consideration of the totality of circumstances, did not abuse its discretion in admitting the statement into evidence.

(Citations and punctuation omitted.) Killings v. State, 296 Ga. App. 869, 872 (2) (676 SE2d 31) (2009).

2. Bowman also contends that his trial counsel was ineffective for failing to move for a mistrial or request curative instructions when witnesses referred to his juvenile history and prior arrests, and also for failing to present evidence at the Jackson-Denno hearing. We do not agree.

[T]o prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable probability, i.e., a probability sufficient to undermine confidence in the outcome, that but for counsel’s unprofessional errors the result of the proceeding would have been different.

Jackson v. State, 277 Ga. 592, 593 (2) (592 SE2d 834) (2004). “[I]n ruling on an ineffectiveness claim, this Court need not analyze the deficient performance prong if the Court determines the prejudice prong has not been satisfied.” (Punctuation and footnote omitted.) Rivers v. State, 283 Ga. 108, 110 (2) (657 SE2d 210) (2008).

Bowman asserts that the references by three different witnesses to his prior incarcerations and juvenile record tainted his presumption of innocence. The references were made by an officer who testified that he knew what Bowman looked like from a “book-in photo,” another officer’s remark that the photos in Bowman’s lineup had been attached to reporting software, and the testimony of Bowman’s uncle that Bowman was not home on the Friday night before the incident because he had been incarcerated. At the motion for new trial hearing, Bowman’s attorney testified that she did not move for a mistrial because she believed the motion would have been overruled and she did not want to bring more attention to the statements. The strategy of avoiding an objection that would draw the jury’s attention to unfavorable evidence, is not outside the wide range of reasonable professional assistance. Sweet v. State, 278 Ga. 320, 324 (5) (602 SE2d 603) (2004). Likewise, a fleeting reference to possible criminal history is generally harmless, see Gordian v. State, 261 Ga. App. 75, 77 (2) (581 SE2d 616) (2003); thus, trial counsel was not ineffective for her strategic decision not to object. Sims v. State, 281 Ga. 541, 542-543 (2) (640 SE2d 260) (2007). Thus, this claim fails.

Likewise, Bowman’s claim that trial counsel was ineffective for failing to present evidence at the Jackson-Denno hearing, including testimony from his uncle and grandmother, also fails. He appears to argue that the additional evidence would have resulted in the suppression of his statements. In support of this claim, however, Bowman offers nothing more than his own speculation that had his trial counsel been successful in presenting testimony that his grandmother and uncle did not consent to his questioning, his statements would not have been admitted. As noted in Division 1, the officers testified that the uncle and grandmother gave their permission to question Bowman, and credibility issues were for the trial court’s determination. Furthermore, Bowman’s grandmother testified at trial that she could not recall whether she gave the officers permission to question Bowman, but that she would have given it to them if asked. Finally, his trial counsel testified at the motion for new trial hearing that she did not call the uncle to testify at the Jackson-Denno hearing because he told her that he gave the police permission to question Bowman.

Thus, as Bowman has not demonstrated a reasonable probability that the result of the trial would have been different if his trial counsel had presented additional evidence at his Jackson-Denno hearing, the trial court did not err in concluding that trial counsel’s actions did not amount to ineffective assistance. See Jones v. State, 315 Ga. App. 427, 433 (3) (727 SE2d 216) (2012).

Decided November 15, 2013.

Cynthia L. Bower, for appellant.

D. Victor Reynolds, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller and Ray, JJ., concur.

       The aggravated assault conviction merged into the armed robbery count, and the three possession of a firearm counts merged for sentencing purposes.

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


text:
    A13A1179.
    MASTROGIOVANNI v. THE STATE.
    (751 SE2d 536)
   BARNES, Presiding Judge.

Following a bench trial, Ronald Mastrogiovanni was convicted of 11 counts of sexual exploitation of children. Following the denial of his motion for new trial, he appeals and contends that the trial court erred in finding that Mastrogiovanni voluntarily and knowingly waived his right to a jury trial, and that trial counsel was ineffective. Upon our review, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). The evidence in this case demonstrates that Mastrogiovanni’s arrest resulted from a tip that the Georgia Bureau of Investigation received from the National Center for Missing and Exploited Children (the “Center”). AOL had forwarded an e-mail message with an imbedded image depicting apparent child pornography to the Center, which forwarded the information to the GBI’s Internet Crimes Against Children Unit. The e-mail account was traced to Mastrogiovanni, and after police executed a search warrant at his house, they discovered multiple images of child pornography on his personal computer. Mastrogiovanni was arrested and later indicted on 11 counts of sexual exploitation of children. After a bench trial, he was found guilty of all counts and sentenced to 20 concurrent years on each count. Although Mastrogiovanni does not challenge the sufficiency of the evidence against him, a review of the record establishes that the evidence was sufficient to authorize the factfinder to find him guilty of all counts charged. Haynes v. State, 317 Ga. App. 400, 401 (1) (731 SE2d 83) (2012).

1. Mastrogiovanni first contends that he did not personally, knowingly, voluntarily, and intelligently waive his constitutional right to a trial by jury.

A defendant’s right to trial by jury is one of those fundamental constitutional rights that the defendant must personally, knowingly, voluntarily, and intelligently choose to waive. A trial court should ask the defendant sufficient questions on the record so that the court can ensure the defendant’s waiver is knowing, voluntary, and intelligent.

(Footnotes omitted.) Watson v. State, 274 Ga. 689, 691 (2) (558 SE2d 704) (2002). The State may meet its burden of showing that the

waiver was made both intelligently and knowingly, either... by showing on the record that the defendant was cognizant of the right being waived; or ... by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.

(Citation and punctuation omitted.) Seitman v. State, 320 Ga. App. 646 (740 SE2d 368) (2013). “[We] will affirm a trial court’s decision that [an appellant] has validly waived [his] right to a jury trial unless that decision is clearly erroneous.” (Citation and punctuation omitted.) Jacobs v. State, 299 Ga. App. 368, 370 (1) (683 SE2d 64) (2009).

Although Mastrogiovanni contends that the evidence does not show how he reached his decision to waive a jury trial, or that he appreciated the ramifications of his decision, there is no

requirement that the trial court expressly inform the accused of those particular... issues which waiver of a jury trial will obviate. A defendant’s consent need not be in a particular, ritualistic form. Since form is unimportant, the only real issue is whether appellant intelligently agreed to a trial without jury. The trial court need only conduct an inquiry of the accused on the record so as to ensure that the waiver is knowing, voluntary and intelligent.

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

Here, the evidence supports the trial court’s finding in its order denying the motion for new trial that Mastrogiovanni knowingly and intelligently waived his right to a jury trial. Before the start of trial, Mastrogiovanni’s trial counsel announced that he wanted to “put on the record... ¡Mastrogiovanni’s] waiver of a jury trial.” The following exchange then occurred:

Counsel: I don’t know if the Court wants to make an inquiry or not, but Mr. Mastrogiovanni and I discussed this case---After a lengthy discussion, Mr. Mastrogiovanni and I have decided to — with his interests, he has decided to waive his right to a jury trial and receive before Your Honor a bench trial to try this case. Mr. Mastrogiovanni, is that true? You have been advised of your right to a jury trial?
Mastrogiovanni: Yes, sir, I have.
The Court: All right. Do you have any questions about that?
Mastrogiovanni: No, sir.

At the motion for new trial hearing, Mastrogiovanni’s trial attorney produced several notes he had made during the course of his representation in which he and Mastrogiovanni had discussed having a bench trial rather than a jury trial. In his last notation four days before Mastrogiovanni’s trial, trial counsel wrote that he had confirmed with Mastrogiovanni that he would be on trial in front of the judge, and had fully explained the process, including Mastrogiovanni’s absolute right to a jury trial, and the differences between a jury trial and a bench trial.

Under these circumstances, the record shows that Mastrogiovanni knowingly and intelligently waived his right to a jury trial. See Jacobs v. State, 299 Ga. App. at 370 (1) (State may present extrinsic evidence showing valid waiver of right to jury trial, including testimony by defense counsel in motion for new trial hearing about his recollections); Fleming v. State, 282 Ga. App. 373, 376-377 (2) (638 SE2d 769) (2006) (State carried burden of proof regarding jury trial waiver with trial counsel’s testimony at motion for new trial hearing regarding his discussions with appellant).

2. Mastrogiovanni also contends that his trial counsel was ineffective for failing to challenge the use of the search warrant as the basis for the full forensic search of his hard drive that was conducted later at the GBI facility. He concedes that the search warrant was executed at his house within ten days after it was issued, as required by OCGA § 17-5-25, but argues that the subsequent forensic analysis of the seized computer took place more than ten days after the warrant was issued. Thus, he concludes, the results of the analysis should be suppressed because they were obtained in a warrantless search. We do not agree.

[T]o prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable and professional conduct. [As an appellate court, we] accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). We need not address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either prong. Ledford v. State, 313 Ga. App. 389, 393 (4) (721 SE2d 585) (2011). “When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” (Citation and punctuation omitted.) Rivers v. State, 283 Ga. 1, 5 (3) (b) (655 SE2d 594) (2008).

OCGA § 17-5-25 provides in pertinent part that a “search warrant shall be executed within ten days from the time of issuance.... Any search warrant not executed within ten days from the time of issuance shall be void and shall be returned to the court of the judicial officer issuing the same as ‘not executed.’ ” There is no dispute that the search warrant at issue was executed in Mastrogiovanni’s house within the statutory time period. Mastrogiovanni’s contention is that the computer that was seized during the search could not itself be “searched” without a warrant, and the ten-day period window defined by OCGA § 17-5-25 had expired before the forensic analysis took place.

Mastrogiovanni has cited no authority for the proposition that the analysis of items seized during the execution of a valid search warrant requires a second search warrant. We are aware of no authority for the proposition that items seized from the lawful execution of a search warrant must then be analyzed, tested, or examined within the ten-day period provided for in OCGA § 17-5-25. The State analogizes the forensic analysis of Mastrogiovanni’s computer to the chemical analysis of substances that field-tested positive for illegal drugs when seized pursuant to a search warrant. The State is not required to obtain a second warrant to analyze the substance or, for example, conduct ballistic tests on seized firearms. Similarly, the State is not required to obtain a second warrant to analyze the computer here. Thus, as Mastrogiovanni has failed to establish that a motion to suppress would have been granted on this ground, the trial court did not err in finding that trial counsel was not ineffective for failing to file a motion to suppress. See Biggs v. State, 281 Ga. 627, 631-632 (4) (b) (642 SE2d 74) (2007).

Decided November 15, 2013

Brian Steel, for appellant.

Fredric D. Bright, District Attorney, Alison T. Burleson, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller and Ray, JJ., concur.

       Mastrogiovanni did file a motion to suppress the evidence seized during the execution of the search warrant, which, following a hearing, the trial court denied.


author: McMillian, Judge.

text:
    A13A1187.
    SHABUROV v. THE STATE.
    (751 SE2d 540)
   McMillian, Judge.

Sergey Shaburov appeals the denial of his motion for new trial after a jury convicted him of one count of criminal attempt to commit murder, two counts of aggravated assault, one count of aggravated battery, two counts of arson in the first degree, and one count of burglary. As his sole argument on appeal, Shaburov asserts that he received ineffective assistance of counsel when his attorney failed to object and/or move for a mistrial when both the prosecuting attorney and a witness for the State improperly commented on Shaburov’s failure to come forward to law enforcement.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we construe the evidence in the light most favorable to the jury’s verdict.” (Citation omitted.) Boggs v. State, 304 Ga. App. 698, 698 (1) (697 SE2d 843) (2010). So viewed, the evidence showed that Shaburov was staying with his friend, Vladimir Schennikov, when the two got into a dispute over Shaburov’s behavior with Schennikov’s niece, who also was staying at Schennikov’s house. Schennikov subsequently asked both Shaburov and his niece to move out of his house.

Sometime later, Shaburov returned to Schennikov’s house saying that he was there to kill Schennikov. Shaburov apparently believed Schennikov had told Shaburov’s girlfriend that he was having an affair with the niece. Shaburov began hitting Schennikov, and the two ended up in Schennikov’s bedroom where Shaburov poured a liquid on the bed and set it on fire, telling Schennikov that he was going to burn him in his bed and nobody would know. Schennikov was able to get the fire under control, but Shaburov reignited it. Shaburov again began hitting Schennikov in the face and ribs, and at some point, Schennikov grabbed a BB gun and began to shoot. Shaburov took the gun from Schennikov and emptied it into the left side of Schennikov’s head and face. Shaburov began beating Schennikov again, while the bed continued to burn and smoke filled the room. Although Schennikov cannot remember how, he eventually was able to get out of his house, where he fell to the ground unconscious. Most of Schennikov’s bedroom was consumed by fire. Schennikov was transported to the hospital where he was diagnosed with multiple rib fractures, bruises to his lung, and multiple facial fractures, including a fractured eye socket, broken sinuses, and a broken nasal septum.

Shaburov did not testify at trial, but he gave a statement to the police, which was played for the jury. Although Shaburov admitted having an altercation with Schennikov, he told police that Schennikov was the aggressor and that he struck Schennikov in self-defense when Schennikov pulled a knife. He also said that Schennikov put a grill lighter in his face and the two struggled over it. Shaburov said that the fire started accidentally during the struggle when he forced Schennikov’s hand down on the bed. After the struggle, Shaburov just left Schennikov in the house.

On appeal, Shaburov contends that he is entitled to a new trial because his trial counsel failed to object when the prosecuting attorney and a State witness improperly commented on his failure to come forward to law enforcement during their investigation. He asserts these instances represented improper commentary on his right to remain silent and a violation of the “bright line rule” set out in Mallory v. State, 261 Ga. 625 (409 SE2d 839) (1991). Shaburov argues that his counsel was ineffective in failing to object or to move for a mistrial.

In opening statement, the prosecutor told the jury that “[t]he investigators that you will hear from in this case immediately obtained the name of Sergey Shaburov, and they went looking for him, and they went to the house of his fiancee and left a message for him to contact them. He never did[.]” Later, during DeKalb County Fire Investigator William Walker’s testimony regarding his investigation into the fire, the prosecutor asked Walker the following series of questions:

Q: At some point during the police investigation, did you obtain the name of Sergey Shaburov?
A: Yes, I did.
Q: Okay. And what did you proceed to do next?
A: I tried to find out his location. When I obtained that information, I tried to locate that individual, went to the location where he was believed to be.
Q: Okay. Do you remember what day you went to the location?
A: It was probably within a week, probably three to four days later.
Q: Okay. And did you speak with someone when you went to that location?
A: I did.
Q: Okay. And did you give your information that you were looking for Sergey Shaburov?
A: I did.
Q: And did Mr. Shaburov ever contact you?
A: No, he did not contact me.

(Emphasis supplied.)

Shaburov’s counsel raised no objection to either the prosecutor’s opening statement or the testimony. At the hearing on Shaburov’s motion for new trial, the attorney stated that she had no recollection of “making any conscious decision whether or not to object during opening [statement].” She said that the argument and testimony could be considered “comments on... whether or not [Shaburov] was coming forward” but she thought that such testimony “could be” admissible evidence at trial. In any event, she stated “[t]here was no strategic reason whether or not to object.”

“A claim of ineffective assistance of counsel is a mixed question of law and fact. The proper standard of review requires that we accept the trial court’s factual findings unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) State v. Crapp, 317 Ga. App. 744, 745 (2) (732 SE2d 806) (2012). And in considering Shaburov’s arguments, we apply

[t]he two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), [which] asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency.

(Punctuation omitted.) Bruce v. State, 252 Ga. App. 494, 498 (2) (555 SE2d 819) (2001). “There is a strong presumption that counsel’s conduct falls within the range of sound trial strategy and reasonable professional judgment. [Strickland, 466 U. S. at 689].” Newkirk v. State, 290 Ga. 581, 582 (2) (722 SE2d 760) (2012).

[A]nd the defendant bears the burden of overcoming this presumption. To carry that burden, the defendant must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not, or put another way, that his lawyer made errors so serious that he was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.

(Citations and punctuation omitted.) State v. Worsley, 293 Ga. 315, 323 (3) (745 SE2d 617) (2013). Moreover, “[t]he likelihood of a different result must be substantial, not just conceivable.” (Citation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012).

The trial court found that Shaburov received “amply effective assistance of counsel” under the Strickland standard. The court also found that Shaburov failed to carry his burden under Strickland of showing that his counsel’s performance was deficient or that his defense was prejudiced, noting that “[his attorney’s] performance was eminently reasonable under the circumstances confronting her both before and during trial.”

1. With regard to the argument on appeal, the trial court specifically found that neither the prosecutor’s argument nor Walker’s testimony constituted improper commentary on Shaburov’s right to remain silent because

[i]n neither instance was there evidence or claim that Shaburov in fact received the message left with a third party for him to contact the police, so as to raise the inference that Shaburov was exercising a “right to remain silent” by not contacting the police. Moreover, the evidence showed that as soon as he was contacted by the police, Shaburov chose to give a lengthy statement, thereby clearly demonstrating that, when, in fact, given the choice, Shaburov did not exercise a “right to remain silent.” In light of these facts, no fair inference can be raised that the prosecutor’s complained-of opening comments or the fire investigator’s testimony was an improper comment on Shaburov’s “right to remain silent.”

(Emphasis in original.) Accordingly, by implication, the trial court found that Shaburov’s counsel was not deficient in failing to object or move for a mistrial on this ground. We agree.

As the trial court stated, the prosecutor neither contended nor presented evidence that Shaburov ever received the message Walker left asking Shaburov to contact police. Moreover, immediately after the complained-of portion of opening statement, the prosecutor told the jury that approximately two weeks later, after Shaburov was arrested, the police were able to interview him and “he gave his side of the story, and that side of the story you will have the opportunity to listen to.” Similarly, after the quoted portion of Walker’s testimony, Walker testified that he, in fact, interviewed Shaburov, after reading him his rights, and Shaburov gave a statement, a portion of which was then played for the jury. Accordingly, as the trial court found, no evidence exists that Shaburov ever exercised his right to remain silent; instead, he chose to talk to the police.

Under these circumstances, Shaburov cannot show any deficiency on the part of his trial attorney in failing to object. “Specifically, since [Shaburov] spoke with police without ever invoking his right to remain silent, the prosecutor’s line of questioning [and opening statement] did not constitute impermissible commentary on appellant’s right to remain silent.” (Citations omitted.) Gilyard v. State, 288 Ga. 800, 802 (2) (708 SE2d 329) (2011). See also Carter v. State, 324 Ga. App. 118, 123 (2) (b) (749 SE2d 404) (2013) (trial counsel not deficient in failing to object to alleged commentary on defendant’s failure to mention a certain fact in first interview with police where defendant readily spoke with police after receiving Miranda warnings and never invoked right to silence, finding Mallory principle does not require exclusion of such testimony); Fleming v. State, 324 Ga. App. 481, 486 (3) (a) (749 SE2d 54) (2013) (counsel not ineffective in failing to object to testimony about defendant’s failure to show for appointment with internal affairs investigator where evidence showed that defendant previously spoke with internal affairs investigator and never invoked right to silence).

Accordingly, we find that Shaburov failed to carry his burden on the first prong of the Strickland test.

2. But even if the trial counsel’s failure to object somehow could be considered deficient performance, the trial court also found Shaburov failed to carry his burden of showing that but for the opening comments or Walker’s testimony, a substantial likelihood existed that the outcome of the trial would have been different, stating:

This Court sat through the evidence in this case twice. [] The evidence against Shaburov was overwhelming, inclusive of his admissions to being present at the victim’s home; hitting the victim multiple times; and putting a “flame” to the victim’s face, after which the victim’s bed began to “smoke” and Shaburov “left.” The victim sustained severe injury, including five rib fractures and twenty fractures around his eye, breaking his eye socket and sinuses; he was beaten so badly that at [the] time of trial, he was still suffering from seizures. The victim barely escaped from his burning bedroom and was found sprawled unconscious on his front lawn. Shaburov presented no credible defense to the beating or to the fire.

The trial court thus concluded “[b]ased upon the above considerations, as well as evidence adduced on motion for new trial including credibility witnesses” that Shaburov failed to carry his burden on the prejudice prong of the Strickland test. Once again, we agree.

Courts must consider a number of factors “[w]hen determining whether the State’s unchallenged comments or questions about a defendant’s right to remain silent have prejudiced that defendant.” Scott v. State, 305 Ga. App. 710, 717 (2) (a) (700 SE2d 694) (2010).

Decided November 15, 2013

Benjamin D. Goldberg, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

These include whether the error was an isolated incident, or instead consisted of several questions or comments, and whether the error was inadvertent, rather than a deliberate attempt by the State to use the defendant’s silence against him. We also examine the “trial context” of the error, and take a particularly dim view of the State’s conduct in arguing during closing that evidence of the defendant’s silence should be viewed as evidence of his guilt. Finally, we analyze whether, in light of the evidence presented, there was a possibility that the State’s improper comments contributed to the guilty verdict. In other words, we examine whether the evidence of the defendant’s guilt was overwhelming or whether the evidence was conflicting.

(Citations omitted.) Id.

Here, although the argument and testimony cannot be considered inadvertent, we find no deliberate attempt to use Shaburov’s failure to respond to Walker’s message against him, because it appears that these statements, when considered in context, “[were made] during a narrative on the part of the authorities of a course of events and apparently [were] not intended to, nor did [they] have the effect of, being probative on the guilt or innocence of the defendant.” (Citation omitted.) Hardy v. State, 301 Ga. App. 115, 116 (2) (686 SE2d 789) (2009). In each instance, the jury immediately was informed that Shaburov, in fact, did speak with police, and the jurors were able to hear his statement. Because these incidents occurred as part of a narrative of events and were not “directed to a particular statement or defense offered by [Shaburov],” they were not prejudicial. DeLong v. State, 310 Ga. App. 518, 526 (4) (714 SE2d 98) (2011). See also Hardy, 301 Ga.App. at 116 (2). Moreover, we agree with the trial court that evidence of Shaburov’s guilt was overwhelming.

Therefore, we find that Shaburov also failed to meet the second prong of the Strickland test.

Judgment affirmed.

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

       Shaburov said in his interview that he used to he a boxer and a wrestler, and while the police investigator’s “hit is like a 100 pounds, [Shaburov’s] hit is 600 pounds.”

       In Mallory, the Supreme Court announced:
      We take this opportunity to hold that in criminal cases, a comment upon a defendant’s silence or failure to come forward is far more prejudicial than probative. Accordingly, from the date of publication of this opinion . . . such a comment will not be allowed, even where the defendant has not received Miranda warnings and where he takes the stand in his own defense.
      261 Ga. at 630 (5).

        Mallory was implicitly overruled on other grounds in Chapel v. State, 270 Ga. 151, 155 (4) (510 SE2d 802) (1998). See Clark v. State, 271 Ga. 6,9-10 (5) (515 SE2d 155) (1999) (recognizing overruling of Mallory).

       An earlier trial on the same charges ended in a mistrial when one juror refused to continue deliberations. According to the trial court’s order, “[t]he second jury returned a verdict of guilty on all counts within three hours of receiving the case.”


author: Branch, Judge.

text:
    A13A1351.
    BABALOLA v. HSBC BANK, USA, N.A. et al.
    (751 SE2d 545)
   Branch, Judge.

Gabriel Babalola filed a pro se complaint against HSBC Bank, USA, N.A. and Litton Loan Servicing asserting claims for wrongful foreclosure, breach of contract, fraud, and the federal Fair Debt Collection Practices Act. HSBC and Litton filed a joint motion to dismiss the complaint for insufficient service of process and failure to state a claim upon which relief could be granted. The trial court granted that motion with little explanation and dismissed Babalola’s complaint with prejudice. Babalola now brings this pro se appeal. For the reasons explained below, we reverse the order of the trial court and remand the case for proceedings consistent with this opinion.

We review de novo a trial court’s determination that a pleading fails to state a claim upon which relief can be granted, “construing] the pleadings in the light most favorable to the plaintiff [and] with any doubts resolved in the plaintiff’s favor.” (Citations omitted.) Center for a Sustainable Coast v. Ga. Dept. of Natural Resources, 319 Ga. App. 205-206 (734 SE2d 206) (2012). And the pleadings to be construed include any exhibits attached to and incorporated into the complaint and the answer. Gold Creek SL v. City of Dawsonville, 290 Ga. App. 807, 809 (1) (660 SE2d 858) (2008). See also OCGA § 9-11-10 (c) (“[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes”).

Babalola’s complaint and the exhibits attached thereto show that in August 2006 Babalola obtained an $800,000 mortgage loan from Fremont Investment and Loan. The loan was secured by a promissory note and a security deed on the real property presumably being purchased by Babalola. The promissory note was given to Fremont as “Lender,” while the security deed granted a security interest in the property to Mortgage Electronic Registration Systems, Inc. (“MERS”), acting “solely as nominee for Lender and Lender’s successors and assigns.” The security deed contained an acceleration clause providing that in the event of Babalola’s default the Lender would have the right to foreclose on the property by means of a nonjudicial foreclosure sale.

Sometime between July 2008 and June 2011 Babalola defaulted on his loan payments, and HSBC thereafter purchased the property at the August 2, 2011 nonjudicial foreclosure sale. Approximately 11 months later, on June 21, 2012, Babalola filed the current action. On September 27, 2012, HSBC and Litton filed their joint “Answer By Special Appearances,” in which they asserted a number of defenses and denied all of the complaint’s substantive allegations. Simultaneously with the filing of their answer, HSBC and Litton also filed their motion to dismiss Babalola’s complaint for insufficient service of process and failure to state a claim. The trial court granted that motion on January 10, 2013. According to the trial court’s summary order, the dismissal was based on its review of “the Motion, the facts of the case, the Court file, [and] the written briefs,” as well as the fact that the court had “otherwise [been] fully advised [of] the premises.” This appeal followed.

1. “Atrial court’s finding of insufficient service of process will be upheld on appeal absent a showing of an abuse of discretion,” and “[s]uch an abuse occurs where the trial court’s ruling is unsupported by any evidence of record.” (Citations, punctuation and footnotes omitted.) Mathis v. BellSouth Telecommunications, 301 Ga. App. 881 (690 SE2d 210) (2010). Here, HSBC and Litton argued that because Babalola had not filed the return of service, he had not perfected service of process. The record shows, however, that on October 5, 2012, Babalola filed an Entry of Service as to both HSBC and Litton. Accordingly, to the extent the trial court’s order of dismissal is based upon Babalola’s alleged failure to perfect service, that order constitutes an abuse of the court’s discretion.

2. We next address the question of whether Babalola’s complaint fails to state a claim upon which relief can be granted. Under current Georgia law, it is not “necessary for a complaint to set forth all of the elements of a cause of action in order to survive a motion to dismiss for failure to state a claim.” (Citations omitted.) Scott v. Scott, 311 Ga. App. 726, 729 (1) (716 SE2d 809) (2011). Rather, “[t]he Georgia Civil Practice Act requires only notice pleading and, under the Act, pleadings are to be construed liberally and reasonably to achieve substantial justice consistent with the statutory requirements of the Act.” (Footnote omitted.) Rucker v. Columbia Nat. Ins. Co., 307 Ga. App. 444, 446 (1) (a) (705 SE2d 270) (2010). Thus, a motion to dismiss for failure to state a claim should not be granted unless “the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof.” (Citation and punctuation omitted.) Anderson v. Daniel, 314 Ga. App. 394, 395 (724 SE2d 401) (2012). “Put another way, ‘if, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.’ ” (Citation and punctuation omitted.) Benedict v. State Farm Bank, 309 Ga. App. 133, 134 (1) (709 SE2d 314) (2011).

(a) Babalola’s wrongful foreclosure claim is based on his allegations that the foreclosure violated a bankruptcy stay; that HSBC and Litton failed to provide Babalola with notice of the foreclosure as required by OCGA § 44-14-162.2 and failed to advertise the foreclosure as required by OCGA § 44-14-162; and that neither HSBC nor Litton was a party to either the promissory note or the security deed and therefore neither had standing to foreclose on his property. These allegations support a wrongful foreclosure claim under Georgia law.

A foreclosure sale that is conducted after a bankruptcy stay goes into effect is void ab initio. See Vereen v. Deutsche Bank Nat. Trust Co., 282 Ga. 284, 285 (646 SE2d 667) (2007); In re Ford, 296 BR 537, 543 (III) (A) (Bankr. N.D. Ga. 2003). Babalola has alleged defendants violated an existing automatic stay when they foreclosed on the property.

Additionally, under OCGA § 23-2-114, “[p]owers of sale in deeds of trust, mortgages, and other instruments shall be strictly construed and shall be fairly exercised.” “Where a foreclosing party breaches his statutory duty to exercise the power of sale fairly and in good faith, the debtor may sue for damages for wrongful foreclosure.” (Citation omitted.) Racette v. Bank of America, 318 Ga. App. 171, 174 (1) (a) (733 SE2d 457) (2012). Such a breach occurs where a secured creditor fails to comply with the statutory advertising and notice requirements set forth in OCGA §§ 44-14-162 (a) and 44-14-162.2. Id. at 174-175 (a). See also Roylston v. Bank of America, 290 Ga. App. 556, 559 (1) (b) (660 SE2d 412) (2008) (“[w]here a foreclosing creditor fails to comply with the statutory duty to provide notice of sale to the debtor in accordance with OCGA § 44-14-162 et seq., the debtor may either seek to set aside the foreclosure or sue for damages for the tort of wrongful foreclosure”) (citation omitted). Similarly, if the contents of the advertisement of sale are defective in some respect, that defect “will support a wrongful foreclosure claim if the debtor can come forward with evidence that the defects chilled the bidding at the foreclosure sale, causing a grossly inadequate sale price.” (Citations omitted.) Racette, 318 Ga. App. at 175 (1) (a). See also Gordon v. South Central Farm Credit, 213 Ga. App. 816, 818 (446 SE2d 514) (1994) (where sale price is “grossly inadequate and the sale is accompanied by either fraud, mistake, misapprehension, surprise or other circumstances which might authorize a finding that such circumstances contributed to bringing about the inadequacy of price ... such a sale may be set aside”) (citation and punctuation omitted). Here, Babalola has alleged not only that the defendants failed to provide him with the required notice of foreclosure and failed to advertise the foreclosure as required, but also that the sales price was inadequate.

Additionally, Babalola asserts that because neither HSBC nor Litton was a party to either the promissory note or the security deed, neither had standing to foreclose on the property. We recognize that “[u]nder current Georgia law, the holder of a deed to secure debt is authorized to exercise the power of sale in accordance with the terms of the deed even if it does not also hold the note or otherwise have any beneficial interest in the debt obligation underlying the deed.” You v. JP Morgan Chase Bank, 293 Ga. 67, 74 (1) (743 SE2d 428) (2013). See also Hayes v. EMC Mtg. Corp., 296 Ga. App. 709, 711 (675 SE2d 594) (2009) (a secured lender’s assignee steps into the shoes of, and becomes subrogated to, the rights of that secured lender). We are unable to determine from the pleadings (as opposed to the evidence presented in support of the motion to dismiss), however, whether HSBC was the holder of the security deed, as it contends it was, or whether Litton was appointed to serve as HSBC’s agent with respect to that deed. We are therefore constrained to find that Babalola’s assertion that neither HSBC nor Litton had the authority to foreclose on his property supports his wrongful foreclosure claim.

In light of the foregoing, Babalola’s allegations that the foreclosure sale at issue violated a bankruptcy stay, that the sale failed to comply with the relevant statutory notice and advertising requirements, and that neither HSBC nor Litton had standing to conduct the sale, support his wrongful foreclosure claim, and the trial court erred in dismissing that claim.

(b) Under Georgia law, “a security deed which includes a power of sale is a contract and its provisions are controlling as to the rights of the parties thereto and their privies.” (Citation and punctuation omitted.) Gordon, 213 Ga. App. at 817. In his complaint, Babalola asserts that HSBC and Litton breached certain provisions of both the security deed and the promissory note by failing to provide Babalola with monthly invoices, failing to provide Babalola with notice that the mortgage had been transferred from Fremont, and failing to provide Babalola with the notice mandated by the security deed prior to exercising its rights under the acceleration clause.

Neither the security deed nor the promissory note reflect that either HSBC or Litton had a contractual duty to provide Babalola with monthly invoices. Accordingly, this allegation does not support a breach of contract claim. See Racette, 318 Ga. App. at 172 (“[t]o the extent that there is any discrepancy between the allegations in the complaint and the exhibits attached to it, the exhibits control”), citing H & R Block v. Asher, 231 Ga. 780, 781 (204 SE2d 99) (1974). Babalola’s assertions that HSBC and Litton failed to comply with the notice provisions contained in the security deed relating to the sale of the mortgage and the exercise of the acceleration clause, however, do support such a claim. Racette, 318 Ga. App. at 180-181 (4). Thus, Babalola’s “complaint, coupled with the attachment of the Security Deed as an exhibit thereto, was sufficient for purposes of the Civil Practice Act to put [HSBC and Litton] on notice of the breach-of-contract claim[s] being asserted against [them].” (Citation omitted.) Id. The trial court therefore erred in finding that the complaint failed to state such a claim.

(c) In support of his fraud claim, Babalola asserts that Litton (rather than HSBC) was the actual successor-in-interest to Fremont, that it fraudulently transferred the property for the purpose of foreclosing on it, and that the promissory note misrepresents the amount of the loan. None of these allegations is sufficient to satisfy the requirement that fraud be pled with particularity. See OCGA § 9-11-9 (b). Where a plaintiff (particularly a pro se plaintiff) fails to identify specifically the allegedly fraudulent acts or statements on which his fraud claim is based, however, “the proper remedy is a more definite statement, not a dismissal of the complaint or judgment on the pleadings, at least so long as the plaintiff is able and willing to amend his pleadings to conform to the statutory requirements.” (Citations omitted.) Bush v. Bank of New York Mellon, 313 Ga. App. 84, 90 (720 SE2d 370) (2011). See also Skelton v. Skelton, 251 Ga. 631-632 (1) (308 SE2d 838) (1983). On remand, therefore, the trial court should order Babalola to make a more definite statement of his fraud claim, “identifying] the ways in which the complaint fails to conform to the pleading requirements of the Civil Practice Act, and . . . warning] [Babalola] about the potential consequences of a failure to replead in a way that conforms to these requirements.” Bush, 313 Ga.App. at 92.

(d) Babalola also asserts that HSBC and Litton violated the federal Fair Debt Collection Practices Act (“FDCPA”), 15 USC § 1692 et seq. The FDCPA makes it unlawful for debt collectors to use abusive tactics while collecting debts on behalf of others, and the statute defines a debt collector as “any person . . . who regularly collects or attempts to collect.. . debts owed or due or asserted to be owed or due another.” 15 USC § 1692a (6). The term “debt collector,” however, “does not include the consumer’s creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned.” (Citations omitted; emphasis supplied.) Perry v. Stewart Title Co., 756 F2d 1197, 1208 (II) (C) (5th Cir. 1985). See also Goia v. CitiFinancial Auto, 2012 WL 113647, *11 (II) (G) (N.D. Ga. 2012); Bates v. Novastar/Nationstar Mtg., 2008 WL 2622810, *6 (III) (A) (N.D. Ga. 2008). Here, Babalola attached to his complaint a document indicating that his loan may have been in default as early as the first week of July 2008. And HSBC has asserted that the debt was transferred to it sometime between July 11, 2008, and July 29, 2008. Given these facts, we cannot say definitively that Babalola is barred from asserting a FDCPA claim against HSBC and/or Litton. Thus, the trial court erred in dismissing this claim.

Decided November 15, 2013.

Gabriel Babalola, pro se.

Baker, Donelson, Bearman, Caldwell & Berkowitz, Linda S. Finley, Jonathan E. Green, Alexander F. Koskey III, Joshua N. Tropper, for appellees.

For the reasons set forth above, the order of the trial court dismissing Babalola’s complaint with prejudice is reversed, and the case is remanded for proceedings consistent with this opinion.

Judgment reversed and case remanded.

Phipps, C. J., and Ellington, P. J., concur.

       Babalola’s complaint also named McCurdy and Candler, LLC, the law firm who handled the foreclosure of Babalola’s property. The law firm, however, is not a party to this appeal.

       We recognize that Babalola’s complaint is rambling and, in part, difficult to decipher. However, “we are required to hold [pro se pleadings] to less stringent standards than formal pleadings drafted by lawyers,” Thompson v. Reichert, 318 Ga. App. 23, 24 (733 SE2d 342) (2012), and a careful reading of the allegations contained in the complaint reveal that Babalola is asserting these four claims.

       Neither the complaint nor the exhibits attached thereto reflect whether the loan Babalola obtained was for the purchase of the property at issue or whether he was merely using that property to secure a loan he was obtaining for other purposes.

       According to the exhibits attached to HSBC’s and Litton’s brief in support of their motion to dismiss, MERS, in its capacity as nominee for Fremont, subsequently transferred the security deed, “together with the [Promissory] Note and the debt evidenced thereby which said Deed was given to secure” to HSBC. These exhibits also reflect that HSBC thereafter appointed Litton to service the loan and granted it power of attorney to act for HSBC with respect to the loan and security deed. Given that they are attached to the brief in support of the motion to dismiss and not the answer, however, these documents cannot be considered in deciding the motion to dismiss. Soe Hendon Properties v. Cinema Dev., 275 Ga. App. 434, 435 (620 SE2d 644) (2005) (in deciding a motion to dismiss for failure to state a claim “a trial court may properly consider exhibits attached to and incorporated in” the complaint and answer) (footnote omitted); Gold Creek, 290 Ga. App. at 809 (1). Although a trial court has the option to consider evidence attached to a motion to dismiss and brief in support thereof, when it does so it converts the motion to dismiss into a motion for summary judgment, governed by OCGA § 9-11-56. See Cox Enterprises v. Nix, 273 Ga. 152, 153 (538 SE2d 449) (2000). “In accordance with this procedure, the trial court [has] the burden of informing” a plaintiff that it will he considering exhibits attached to the defendant’s motion to dismiss and that the plaintiff “would have no less than 30 days within which to submit his own evidence in response to [the] motion for summary judgment.” (Citations omitted.) Id. The trial court did not follow this procedure but instead treated the motion as a motion to dismiss. Accordingly, the trial court was precluded from considering the exhibits attached in support of the motion to dismiss, and we may not consider those exhibits in reviewing the trial court’s grant of that motion.

       These documents reflect that HSBC was served on August 27, 2012, and Litton was served on August 28, 2012, approximately three months after Babalola filed his complaint and one month before these defendants filed their motion to dismiss. The entry of service was filed less than one month after defendants filed their motion to dismiss and more than two months before the trial court ruled thereon.

       Babalola actually refers to HSBC’s and Litton’s violations of “OCGA § 44-14-160 et [seq.].” Based on Babalola’s references to the statute in conjunction with his references to lack of notice and lack of advertising, however, it is fairly clear that he is asserting a wrongful foreclosure claim based on HSBC’s and Litton’s alleged failure to comply with OCGA §§ 44-14-162 and 44-14-162.2. The latter statute provides:
      (a) Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. Such notice shall be in writing, shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor, and shall be sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address or to such other address as the debtor may designate by written notice to the secured creditor. The notice required by this Code section shall be deemed given on the official postmark day or day on which it is received for delivery by a commercial delivery firm. Nothing in this subsection shall be construed to require a secured creditor to negotiate, amend, or modify the terms of a mortgage instrument.
      (b) The notice required by subsection (a) of this Code section shall be given by mailing or delivering to the debtor a copy of the notice of sale to be submitted to the publisher.
      OCGA § 44-14-162.2.

       OCGA § 44-14-162 (a) provides, in relevant part:
      No sale of real estate under powers contained in mortgages, deeds, or other lien contracts shall be valid unless the sale shall be advertised and conducted at the time and place and in the usual manner of the sheriff’s sales in the county in which such real estate or a part thereof is located and unless notice of the sale shall have been given as required by Code Section 44-14-162.2. If the advertisement contains the street address, city, and ZIP Code of the property, such information shall be clearly set out in bold type. . . .


text:
    A13A1461.
    MORRIS v. THE STATE.
    (751 SE2d 551)
   BARNES, Presiding Judge.

The appeal follows the grant of Kevin Scott Morris’ application for interlocutory review of the trial court’s denial of his motion to dismiss his indictment for due process and fair trial violations. Upon our review, we affirm.

On November 19, 2008, Morris was indicted for 45 counts of sexual exploitation of children for the knowing possession of movies and images of minors engaged in sexually explicit conduct on his home computer. On December 22, 2008, he filed a “Motion for Discovery and Inspection of all Evidence Favorable to the Defendant” and notice of election to proceed under OCGA § 17-16-1. Thereafter, on January 15,2009, Morris filed a motion for a ruling on preemption in which he asked that the trial court rule on whether the federal pornography statute preempts the Georgia statute. On that same day, he filed several additional motions, including a discovery motion for the State to provide him with a copy of all the “seized media,” and a motion to dismiss for constitutional violations. He alleged that federal law criminalized his defense-related conduct, such as possession of pornographic images of children, and thus anticipated that he would be unable to prepare for trial in the same way afforded by the State. The record also includes a “Notice of Motion Hearing” filed on August 18, 2009 setting a hearing on “all pending motions” for September 9, 2009. There is no transcript of the hearing or orders reflecting the disposition of the motions included with the record, but the State later refers to an evidentiary hearing during that time period.

The record next reflects that on July 18, 2011, Morris filed a motion for a protective order in which he requested copies of all the alleged contraband materials, including his computer’s hard drive, for forensic analysis by his computer expert. Morris further maintained that his expert could not perform his testing at the Georgia Bureau of Investigation, Gwinnett County Police Department or the district attorney’s office because “the government computers may not have the necessary software or updates ... [and] may not have tools available that are critical to [his expert’s] analysis.” His expert averred, among other things, that the State’s equipment might not be new and powerful enough to conduct the examination, and that it would be too expensive and burdensome for him to conduct the examination outside of his “controlled” laboratory.

In his brief supporting his motion, Morris contended that the State had refused to provide copies of the contraband to his expert and that its refusal had due process implications because he was prevented from adequately preparing for trial. He further maintained that OCGA § 17-16-4 (a) (3) (B) was unconstitutional as its prohibition of his right to copy evidence, in conjunction with 18 USC § 3509 (m) (1) (also known as the “Adam Walsh Act”), deprived him of his due process right to an adequate defense. The State responded that it had never denied Morris access to the electronic evidence and that it had agreed to provide Morris’ expert a copy of the hard drive with the images removed when he indicated that such a hard drive would be sufficient. The State also maintained that it had announced at numerous calendar calls that the hard drives were available, and that it had provided Morris and two members of his legal team with a private room at the district attorney’s office and unlimited time to review the evidence. Finally, the State also asserted that the directives that child pornography remain in the control or custody of the government or court, set forth in 18 USC § 3509 (m) (1), apply to state as well as federal cases.

After a hearing on the motion, the trial court issued an order on September 29, 2011, denying Morris’ motion for a protective order. The trial court found that requiring the defense expert to examine the hard drive in a private room at the district attorney’s office was not so burdensome as to deprive Morris of a meaningful opportunity to prepare a defense. Specifically, the court held that OCGA § 17-16-4 (a) (3) (B) “does not deprive [Morris] of his due process rights to have an expert examine the State’s evidence against him,” and denied Morris’ request to have an identical copy of the hard drive provided. It further directed the parties to “immediately confer and arrange a suitable time and opportunity for [Morris] to inspect and test the evidence.”

Apparently a subsequent evidentiary hearing on Morris’ request for the hard drive was conducted, after which, the trial court entered another order on March 2, 2012, finding that its directive in the September 29, 2011 order that Morris’ expert conduct his examination of the hard drive at the district attorney’s office would be “unworkable,” citing the cost, the potential for infringing upon the attorney-client privilege or for revelation of the defendant’s strategies and defenses, the length of time for some of the tests, and the greater sophistication of the defense expert’s equipment. The trial court found that the prohibition in OCGA § 17-16-4 (a) (3) (B) was unconstitutional as applied to Morris because it deprived him of his due process rights to have an expert examine the evidence against him and prepare a defense. The court ordered the State and Morris to confer and submit a proposed protective order detailing the furnishing of a copy of the hard drives to Morris’ expert for the “sole and limited purpose” of testing the hard drives in anticipation of trial.

The State and Morris submitted an agreed-upon protective order, which was adopted and signed by the trial court on May 17, 2012. The protective order provided, among other things, that the State acknowledge that defense counsel and expert’s conduct in complying with the protective order would not be a violation of any Georgia state criminal statute. However, the order also provided:

The parties acknowledge that this Order will not be deemed to be in effect until Defense Counsel and Expert obtain all reasonable assurances in writing from the United States that their conduct in compliance with this order is not a violation of any federal statute, civil or criminal, including those statutes regulating child pornography. A copy of such assurance received from the United States shall be provided to the State and submitted to this Court to become part of the court record.

(Emphasis supplied.)

After letters were sent to three United States Attorneys in Georgia with no response, Morris filed another motion to dismiss the case. He claimed that because he had not received assurances from the United States Attorneys, he was unable to have an expert evaluate the evidence against him for fear of federal prosecution against his attorney and expert, and that his due process and fair trial rights were violated. The trial court denied the motion, finding “there is no statutory nor common law that authorizes the Dismissal of the indictment at this time for the reasons outlined in the Motion,” but issued a certificate of immediate review. We subsequently granted Morris’ application for interlocutory appeal.

On appeal, Morris contends that the trial court erred in denying his motion to dismiss for due process and fair trial violations because, although the trial court ordered that the State provide a copy of the hard drive to the defendant’s attorney and expert, his attorney and expert are unable to take possession or investigate the hard drives without risking a federal investigation or prosecution for possessing child pornography. We are unpersuaded.

The due process clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” Under this clause, criminal prosecutions must comport with prevailing notions of fundamental fairness. The United States Supreme Court has long held that fundamental fairness requires that criminal defendants be afforded a meaningful opportunity to present a complete defense, including the right of access to exculpatory evidence.

(Punctuation and footnotes omitted.) State v. Blackwell, 245 Ga. App. 135, 137 (2) (a) (537 SE2d 457) (2000). In this regard, our Supreme Court has recognized that “where the defendant’s conviction or acquittal is dependent upon the identification of a substance as contraband, due process of law requires that analysis of the substance not be left completely within the province of the state.” Id. at 138 (2) (b); see Patterson v. State, 238 Ga. 204, 206 (232 SE2d 233) (1977). Under principles of due process, “a criminal defendant on trial for his liberty is entitled on motion timely made to have an expert of his choosing, bound by appropriate safeguards imposed by the court, examine critical evidence whose nature is subject to varying expert opinion.” (Citations and punctuation omitted.) Sisson v. State, 181 Ga. App. 784, 786 (353 SE2d 836) (1987).

In this case, Morris has not been denied access to the materials he has requested by an expert of his choosing. The trial court ordered that Morris’ expert be provided with a copy of his computer’s hard drive and that the parties devise a protective order detailing the conveyance of the materials. The provision requiring written assurances from United States Attorneys of nonprosecution for any potential violations of federal child pornography statutes before it took effect exceeded the authority granted to trial judges in the control of judicial proceedings. See State v. Colquitt, 147 Ga. App. 627, 628-629 (249 SE2d 680) (1978) (court’s authority only extends to “the conduct of its officers and all other persons connected with a judicial proceeding before it.”). The trial court has no authority over the United States Attorneys regarding their prosecutorial discretion. See generally Reaves v. State, 284 Ga. 181, 189 (3) (664 SE2d 211) (2008) (the trial court does not have the power to order a government crime lab to conduct tests for a defendant’s benefit). The provision of the protective order requiring that the federal prosecutors essentially provide blanket immunity to defense counsel and Morris’ expert is a nullity. See also Tennille v. State, 279 Ga. 884, 885 (1) (622 SE2d 346) (2005) (noting that other states “have crafted means by which the defense can have meaningful access” to contraband materials “at the heart of the prosecution”).

Decided November 15, 2013

Clegg & Petrey, John H. Petrey, for appellant.

Daniel J. Porter, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.

Moreover, Morris has not shown that the failure to obtain federal assurances prevented him from having meaningful access to the hard drive. The State is prepared to give him and his expert access to the hard drive, and nothing prevents the trial court from vacating the existing protective order to remove the references to federal assurances and adopting a new protective order. See Daly v. State, 285 Ga. App. 808, 811 (4) (b) (648 SE2d 90) (2007) (State’s offer to give the defense a mirror image of Daly’s hard drive and permit defense expert to observe the prosecution’s examination comports with due process requirement of “meaningful access”). Nor is there any evidence to suggest that Morris’ expert would be prosecuted under the federal statute when he is acting within the confines of a court order authorizing examination of the hard drive for a judicial proceeding. Morris has also failed to show that without the federal immunity he would be unable to obtain the services of any expert forensic examiner. Under these circumstances, and at this stage of proceedings, Morris’ due process and fair trial claims are simply too speculative to justify the drastic remedy — dismissal of the indictment — which he seeks. See Weeks v. State, 190 Ga. App. 373, 374 (1) (378 SE2d 895) (1989) (“In light of the total absence of any indication of prejudice, defendant cannot rely on speculative harm.”).

Thus, as the evidence does not demonstrate that Morris has been denied meaningful access to the materials at issue, the trial court did not err in finding that his due process rights had not been violated and in denying his motion to dismiss. See Milton v. State, 232 Ga. App. 672, 678-679 (6) (503 SE2d 566) (1998) (even the State’s failure to preserve potentially useful evidence does not constitute a denial of due process of law unless a criminal defendant can show bad faith on the part of the police).

Judgment affirmed.

Miller, J., concurs. Ray, J., concurs in judgment only.

       OCGA § 17-16-4 (a) (3) (B) provides in relevant part that in the prosecution of, among other offenses, the sexual exploitation of children,
      [w]ith respect to any hooks, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof which are within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution’s case-in-chief . . . such evidence shall, no later than ten days prior to trial, or as otherwise ordered by the court, be allowed to be inspected by the defendant but shall not be allowed to be copied.
      18 USC § 3509 (m) (1) provides that “[i]n any criminal proceeding, any property or material that constitutes child pornography ... shall remain in the care, custody, and control of either the Government or the court.”

       The trial court’s ruling that OCGA § 17-16-4 (a) (3) (B) was unconstitutional as applied to Morris has not been challenged by the State and is not before us in this appeal.