text:
    A10A1690.
    WORD v. THE STATE.
    (708 SE2d 623)
   SMITH, Presiding Judge.

Lathan Word was convicted of armed robbery. The trial court denied Word’s motion for new trial, and this appeal followed, with Word asserting as his sole enumeration of error ineffective assistance of trial counsel. We find that counsel was ineffective in failing to object to a police officer’s comment on the credibility of the victim. We also find that a reasonable probability exists that the result of the trial would have been different but for that failure. We therefore reverse.

To establish ineffective assistance of counsel under Strickland v. Washington a defendant must demonstrate (1) that his trial counsel’s performance was deficient, and (2) that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. To make that showing, [Word] must rebut the strong presumption that his lawyer’s conduct falls within the wide range of reasonable professional assistance. As a general rule, matters of reasonable trial tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel. We will not reverse a trial court’s findings regarding either the deficiency or prejudice prong of the Strickland test unless clearly erroneous.

(Citations, punctuation and footnotes omitted.) Bazin v. State, 299 Ga. App. 875, 876-877 (683 SE2d 917) (2009).

Word complains of trial counsel’s failure to object to the following questions, directed by the prosecutor to the investigating officer:

Q. Did you think he told you the truth about being robbed?
A. Yes. I believe he was robbed.
Q. Okay. And what did you think he was not telling you the whole truth about?
A. About knowing who the suspect was.

A hearing was held on March 22, 2010, at which Word’s original trial counsel testified. When counsel was first questioned at the hearing on the motion for new trial, he had no recollection of the trial, which had occurred almost ten years before. Word’s counsel showed him the questions and answers complained of and asked him, “Well, when you ask a police officer do you think [the victim is] telling the truth and he says yes, do you think that’s objectionable?” Trial counsel responded, “On principle, yes, it should be objected to.” Word’s counsel continued,

Q. It was not part of your strategy to allow a police officer to bolster the credibility of the only eyewitness, was it?
A. No.
Q. You didn’t feel that would be helpful to your client, did you?
A. If I knew that was occurring, I certainly would object. It would certainly not be part of a strategy.

On cross-examination, the State apparently asked trial counsel to review an earlier portion of the trial transcript. Asked, “So after reading the pages on the transcript that are relative to this issue, do you believe that that was bolstering of the witness?” Trial counsel responded:

From what I just read, and I haven’t read the whole transcript, it appears that maybe the defense, Your Honor, . . . went on that line of questioning prior to this redirect examination and the door may have been opened for a response to that, which would have caused me not to object to it, since we led the defense in that line of questioning prior to the redirect.

(Emphasis supplied.) During his earlier cross-examination of the witness, trial counsel repeatedly questioned the officer about the victim’s initial statement that he did not know the robber, and emphasized that the victim had failed to tell the officer the truth about the robber’s identity. During recross-examination, trial counsel again emphasized that the victim was the only source for an identification of Word as the robber, and that he had initially lied to the officer. In closing argument trial counsel emphasized that the victim was untrustworthy, suggesting that his entire story to the police officers and in court was a fabrication and that he had committed the robbery himself. It is apparent that trial counsel determined, as a trial strategy, to attack the victim’s credibility by pointing out that he initially lied to the investigating officer about the robber’s identity.

It is also apparent that the State made efforts to rehabilitate the victim’s credibility by putting forward explanations for the victim’s initial failure to tell the truth. For example, the prosecutor repeatedly elicited from the victim testimony that he did not identify Word initially because in his neighborhood he could be killed for being a “snitch.” The State also presented testimony from the store owner that the victim was initially afraid to tell the truth.

But in its re-direct examination of the investigating officer, the State moved beyond permissible support of the witness’s veracity to the impermissible tactic of eliciting the officer’s belief in the witness’s truthfulness:

Q. [Trial counsel] has asked you questions about how honest you thought that [the victim] was when you got there, and I want to follow-up on that. Did you think he told you the truth about being robbed?
A. No. I felt that he knew the individual, I just — whether — I just —
Q. Let me ask you that question again, if I may.
A. Sure.
Q. Did you think he told you the truth about being robbed?
A. Yes. I believe he was robbed.
Q. Okay. And what did you think he was not telling you the whole truth about?
A. About knowing who the suspect was.

“We have repeatedly held that a witness, even an expert, can never bolster the credibility of another witness as to whether the witness is telling the truth. Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury. Given this well-settled law, trial counsel’s failure to object to this clearly objectionable testimony when it first occurred constituted deficient performance.” (Citations and punctuation omitted.) Mann v. State, 252 Ga. App. 70, 72 (1) (555 SE2d 527) (2001) (failure to object to counselor’s testimony that “I believed [the victim]” constituted deficient performance).

“Not objecting to testimony but instead subjecting it to cross-examination may be part of a reasonable trial strategy.” (Citations and footnote omitted.) Al-Attawy v. State, 289 Ga. App. 570, 573 (1) (657 SE2d 552) (2008). Trial counsel testified that he had no independent recollection of the trial, and even under questioning by the State could only speculate as to possible reasons that he might have failed to object. While his proffered speculation did address his strategy for attacking the victim’s credibility and his failure to object to other testimony on that topic, it could not explain his failure to object to plainly improper testimony from the investigating officer that he believed the victim was telling the truth about being robbed. Nor did trial counsel follow up on recross-examination by attacking the bolstering testimony. Compare Al-Attawy, supra (counsel directly attacked psychologist’s bolstering testimony and witness qualified her prior testimony on cross-examination). See also Bly u. State, 283 Ga. 453, 459 (3) (660 SE2d 713) (2008) (distinguishing Al-Attawy because witness “never retreated from the bolstering testimony” and no other disinterested testimony on credibility presented at trial). We must conclude that trial counsel was deficient in failing to object to this testimony.

Having found trial counsel’s performance deficient, we must next examine the prejudice prong of the Strickland test. We find here a reasonable probability that the outcome of the trial would have been different but for this deficiency. The evidence was not overwhelming. The victim was the only witness who identified Word as the robber. No video of the incident was available, and no other evidence connecting Word with the crime was introduced. As noted above, the victim’s credibility was very much at issue.

Decided Maroh 23, 2011.

William J. Mason, for appellant.

Julie Fessenden Slater, District Attorney, Wesley A. Lambertus, Assistant District Attorney, for appellee.

Word testified and insisted that he was innocent. He also presented the alibi testimony of a friend and the friend’s mother who testified, although with some equivocations and lack of clarity, that Word had been at their house at the time of the robbery. During deliberations, the jury sent a note to the judge asking for details in the testimony of one of the alibi witnesses, and the court responded that “you, the jury, must recall that testimony as best you can.” The jury then asked for a transcript of the testimony and was told it was not available.

Under these circumstances, we cannot conclude that the offending testimony did not affect the outcome of the trial. Word has satisfied the second prong of Strickland. Mann, supra, 252 Ga. App. at 74 (1). See also Ward u. State, 304 Ga. App. 517, 528 (5) (a) (696 SE2d 471) (2010) (counsel ineffective in failing to object to detective’s testimony that accomplice was not truthful at first but became truthful when she implicated appellant; outcome affected because evidence not overwhelming). Reversal is required.

Judgment reversed.

Mikell and Adams, JJ., concur.

       In 2005, Word’s motion for an out-of-time appeal was granted, but no notice of appeal or motion for new trial appears to have been filed. In January 2007, Word filed a pro se motion for an out-of-time appeal, which was denied in March of the same year. In March 2008, Word filed a notice of appeal which was dismissed as untimely by this court in May. In June 2008, Word filed a motion for new trial with another motion for out-of-time appeal, which was granted. He amended that motion in February 2010 to allege for the first time ineffective assistance of trial counsel.


source: Caselaw Access Project

author: SMITH, Presiding Judge.

license: Public Domain

text:
    A10A1712.
    CLARK v. THE STATE.
    (708 SE2d 386)
   SMITH, Presiding Judge.

Nathaniel Clark appeals from his convictions for statutory rape and child molestation. He contends that the trial court erred by admitting DNA evidence and that he received ineffective assistance of counsel. For the reasons set forth below, we affirm.

The record shows that a mentally impaired 15-year-old girl told a teacher that her mother’s live-in boyfriend, Clark, “had been sexually abusing her and she was afraid that she might be pregnant.” The victim testified that Clark had intercourse with her at her home when her mother was at work, that she went to “the abortion place” in Jacksonville where they did “some work on her,” and that she never had a baby. She also testified that when she was 13, she started having intercourse with Clark, that she became pregnant, and that she had another abortion.

After the victim’s second pregnancy was confirmed, a detective interviewed Clark. During the interview, Clark acknowledged that he was aware that the victim was pregnant, and he initially denied that he had had intercourse with the victim. When the detective “began to talk about DNA,” Clark told the detective “there was need for no testing because he had, in fact, had sexual intercourse with [the victim].” He provided a written statement in which he admitted that the victim had an abortion two years earlier, that he had sex with her at that time, that he recently learned she was pregnant again, and that he might be the father.

The record shows that the victim’s primary care physician provided her with information about her options, including that of abortion. The mother testified that she took her daughter to the All Women’s Center in Jacksonville to obtain an abortion. The detective testified that she later arranged for “the fetal remains from the abortion, along with blood samples from both [the victim] and Mr. Clark” to be sent to Atlanta for DNA testing. A forensic biologist with the GBI crime lab in Atlanta testified that she conducted DNA testing on the known blood samples from the victim and Clark, as well as the fetal remains, and determined that there was a 99.9958% probability that Clark was the father.

1. In two related enumerations of error, Clark challenges the admissibility of the DNA evidence showing he was the father of the victim’s unborn child. We find no merit in this claim because “DNA evidence may be admitted without demonstrating a chain of custody, since it can be readily identified by reference to the defendant’s DNA.” (Citation omitted.) Kuykendall v. State, 299 Ga. App. 360, 364 (683 SE2d 56) (2009). See also Hines v. State, 307 Ga. App. 807, 809 (2) (706 SE2d 156) (2011).

2. In his remaining enumerations of error, Clark asserts five instances of ineffective assistance of counsel.

Decided March 23, 2011

Edward W. Clary, for appellant.

Stephen D. Kelley, District Attorney, Diane L. Dodd, Assistant District Attorney, for appellee.

To prove ineffective assistance, [Clark] was required to show that counsel’s performance was deficient and that this deficient performance prejudiced his defense. Ellison v. State, 242 Ga. App. 636, 638 (7) (530 SE2d 524) (2000), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The trial court’s determination with respect to counsel’s effectiveness will be upheld on appeal unless clearly erroneous. Jackson v. State, 209 Ga. App. 53, 56 (7) (432 SE2d 649) (1993).

Maddox v. State, 263 Ga. App. 507, 509 (2) (588 SE2d 305) (2003). If trial counsel does not testify in a motion for new trial hearing addressing a claim of ineffectiveness, we must presume his or her decisions were strategic. Dechant v. State, 294 Ga. App. 23, 27 (6) (b) (668 SE2d 501) (2008).

After carefully reviewing the trial transcript and the motion for new trial hearing (in which trial counsel did not testify), we find ample evidence supporting the trial court’s conclusion that Clark did not fulfill his burden of proving that he received ineffective assistance of counsel.

Judgment affirmed.

Mikell and Adams, JJ., concur.

       The record shows that the State was unable to obtain the identity of any clinic employees who performed the abortion on the victim to authenticate that the fetal remains came from the victim. The clinic refused to cooperate based upon concerns for the safety of their employees and the doctor.


author: Smith, Presiding Judge.

text:
    A10A1797.
    COTTON v. THE STATE.
    (708 SE2d 392)
   Smith, Presiding Judge.

This appeal has a long and tortuous history. In 2005, after a bench trial in Fulton County Superior Court, Stanley Cotton was convicted of burglary and acquitted of obstruction of a law enforcement officer. His trial counsel filed a notice of appeal, but the appeal was dismissed for failure to file a brief or enumeration of errors. In 2007, Cotton, represented by appellate counsel, moved for permission to file an out-of-time motion for new trial or, in the alternative, an out-of-time appeal. While no order granting that motion appears in the record, Cotton filed an amended motion for new trial in 2008 which was considered without a hearing by consent of the parties. The amended motion for new trial was denied in 2009, but the order was never served upon counsel. In 2010, the trial court granted Cotton’s motion for another out-of-time appeal. He now appeals, asserting as his sole enumeration of error ineffective assistance of his trial counsel in two respects: in failing to object to the trial court’s questioning of the witnesses, and in failing to move for a hearing before a judge who had not taken the guilty plea of a co-defendant. Finding no error, we affirm.

Cotton complains that the trial court questioned the witnesses excessively, and that trial counsel’s failure to object to the questioning constituted ineffective assistance. But “[t]he trial court’s examination of a witness called by either side is not cause for a new trial unless the court, during its examination of the witness, expresses or intimates an opinion on the facts of the case or as to what has or has not been proved, or the questioning becomes argumentative.” (Citations and punctuation omitted.) Shields v. State, 272 Ga. 32, 34-35 (5) (526 SE2d 845) (2000).

It is well settled that a trial court may question a witness in order to develop the truth of a case. Though a judge is prohibited from expressing or intimating his opinion as to what has or has not been proved, the trial judge does have the right to propound a question or series of questions to any witness for the purpose of developing fully the truth of the case. The extent to which the examination conducted by the court shall go is a matter within the court’s discretion.

(Citations and punctuation omitted.) Jackson v. State, 251 Ga. App. 171, 172-173 (1) (554 SE2d 202) (2001). Cotton has not shown an abuse of discretion here, and “failure to make a meritless objection cannot be evidence of ineffective assistance of counsel.” (Citation and footnote omitted.) Thomas v. State, 306 Ga. App. 279, 281-282 (3) (a) (701 SE2d 895) (2010).

Moreover, Cotton waived his right to a jury trial and was convicted after a bench trial. “During a nonjury trial, it is presumed that the court is able to sift the wheat from the chaff and select only the legal evidence.” (Citation and punctuation omitted.) McRae v. State, 289 Ga. App. 418, 420 (1) (657 SE2d 323) (2008). The intent of restrictions on the trial court’s questioning and comments is to prevent undue influence on a jury: “The reason for . . . prohibiting the judge from intimating his opinion as to what has been proved is to keep the jury from being influenced, not to keep the judge from making up his own mind.” Morton v. State, 132 Ga. App. 329, 330 (1) (208 SE2d 134) (1974). Cotton attempts to equate the trial court with a jury as a “finder of fact,” citing the rule that a juror may not ask questions of a witness. But this rule, which has itself been called into question by our Supreme Court, Allen v. State, 286 Ga. 392, 397, n. 4 (687 SE2d 799) (2010), is expressly inapplicable to the trial court as the trier of fact. Id. at 396-397 (3).

Finally, no hearing was held on Cotton’s motion for new trial by agreement of defense counsel. As a result, no testimony was adduced from his trial counsel regarding any strategic basis for the complained-of conduct. Counsel could well have determined that the danger of antagonizing the trier of fact outweighed any potential harm, or that the questioning was irrelevant to the dispositive issues in the case, as much of it was. “Without such testimony, in the absence of other evidence that trial counsel’s performance was deficient, the trial court is to presume that trial counsel’s actions are part of trial strategy. In the absence of trial counsel’s testimony, it is extremely difficult to overcome this presumption.” (Citations and punctuation omitted.) Temple v. State, 253 Ga. App. 606, 609 (2) (a) (561 SE2d 132) (2002).

Cotton tacitly acknowledges the problem created by the absence of trial counsel’s testimony by asserting that this case “is not one of ‘actual ineffective assistance of counsel’ ” under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), but rather one of “actual or constructive denial of the assistance of counsel altogether,” id. at 683 (I) (D), a claim which predates the holding in Strickland. Such denial of counsel requires no weighing of specific claims of ineffective assistance, as in Strickland, but is legally presumed prejudicial. Id. at 692 (III) (B).

But Cotton’s allegations do not even remotely approach the extreme prejudice, “little short of judicial murder,” and “gross violation of the guarantee of due process of law” in the landmark case of Powell v. Alabama, 287 U. S. 45, 72 (53 SC 55, 77 LE 158) (1932), upon which Cotton relies. Nor did counsel’s actions result in “a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable,” United States v. Cronic, 466 U. S. 648, 659 (III) (104 SC 2039, 80 LE2d 657) (1984), as Cotton urges. Counsel did not “entirely fail[ ] to subject the prosecution’s case to meaningful adversarial testing,” as Cronic requires for such a denial of the right to counsel. “Apart from circumstances of that magnitude . . . there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt. [Cits.]” Id. at 659 (III), n. 26. Here, Cotton’s trial counsel vigorously objected on numerous occasions, and in some cases was sustained by the trial court. He also cross-examined the prosecution’s witnesses at length, and made appropriate motions, including a motion for directed verdict on the obstruction charge, which the trial court granted. There is absolutely no showing of “denial of counsel altogether,” whether actual or constructive, within the meaning of Cronic, Strickland, or Powell, supra.

Decided March 23, 2011.

Samuel F. Little, Jr., for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Judgment affirmed.

Mikell and Adams, JJ., concur.

       Cotton failed to support this second ground by citation or argument, either in his appellate brief or in his brief on motion for new trial below, and it is deemed abandoned. Court of Appeals Rule 25 (c) (2); Bennett v. Quick, 305 Ga. App. 415, 416 (699 SE2d 539) (2010).

       Some of the details elicited by the trial court were actually favorable to Cotton, e.g., that the tracking dog on the scene did not identify Cotton from scent on the stolen televisions, but was simply reacting to air scent from any individual in the area. Defense counsel immediately followed up on the trial court’s questioning, stating, “That’s what I was getting to for the judge.”


author: MILLER, Presiding Judge.

text:
    A10A1799.
    PARK v. THE STATE.
    (708 SE2d 614)
   MILLER, Presiding Judge.

A jury convicted Daniel Park of trafficking in marijuana (OCGA § 16-13-31 (c)) and misdemeanor possession of marijuana (OCGA § 16-13-30 (j) (1)). Park appeals, contending that (i) the trial court erred in denying his motion to suppress the evidence seized during the warrantless search of his residence and (ii) the evidence was insufficient to sustain his trafficking in marijuana conviction. Discerning no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the trial evidence shows that on April 4, 2008, a suspicious package addressed to Park’s residence in Hall County was misdirected to Park’s neighbor. The package was a medium-sized box bearing the name “Abby.” After retrieving the package, the neighbor noticed that the package was “a little soggy” and “had a funny smell to it.” The neighbor described that the package eventually “started smelling really bad” and caused her to develop a slight headache. Perceiving that something “just didn’t seem right” about the package, the neighbor took it to her father for his inspection. When her father opened the package, they observed a grass-like substance wrapped in plastic. They suspected that the substance was marijuana and called the police.

The responding officers took custody of the package and launched an investigation. The investigating detective identified the substance in the package as marijuana based upon his training and experience. Subsequent testing of the substance further confirmed that it was marijuana, weighing 12.46 pounds.

On the same afternoon that the package was received, the officers arranged a controlled delivery to the address that was listed on the package. An investigator, disguised as a postal carrier, made the delivery, while other undercover officers provided backup and surveillance nearby. When the investigator knocked on the door to the residence, Park’s roommate and co-defendant, Justin Wilson, answered. The investigator asked Wilson if “Abby” was present. Wilson responded, “no . . . but they were expecting the package and he would accept delivery of it.” Wilson signed the delivery form, using a fictitious name, and took possession of the package containing the drug contraband. When Wilson attempted to take the package inside the residence, the investigator gave the takedown signal to the other agents and secured the package from Wilson’s possession. Wilson was placed on the ground and was detained in handcuffs.

Through the open door of the residence, the officers observed the presence of four adult occupants. The officers entered the residence, performed a protective sweep, and secured all of the occupants. During the protective sweep, the officers observed a marijuana grinder, marijuana stems, and plastic baggies in plain view on a table in the bedroom identified as belonging to Park.

Following the protective sweep, the officers requested and received Wilson’s consent to search the common areas of the residence. During the search, the officers discovered marijuana in a baggie located in a bathroom and additional baggies containing marijuana residue in the kitchen.

After Wilson was arrested, he was advised of his rights under Miranda. Wilson agreed to cooperate with the investigation and informed the officers that his roommate, Park, had advised him that the package of marijuana would be shipped to the residence and that the package was for his friend, David Salinas. Although Park was not present at the residence during the controlled delivery, Wilson informed the officers that Park would be arriving soon.

Park arrived at the residence shortly thereafter. The officers arrested Park and advised him of his rights under Miranda. The officers requested and received Park’s consent to search his person and his bedroom. During the search of Park’s person, the officers discovered and seized a marijuana pipe containing a trace amount of marijuana. During the search of Park’s bedroom, the officers seized digital scales, along with the marijuana grinder, marijuana stems, and plastic baggies that previously had been observed in plain view.

Park agreed to cooperate with the investigation and answered the officers’ questions regarding the drug package. In his statements, Park admitted that he was a drug abuser who smoked marijuana. Park informed the officers that his friend, David Salinas, had devised a plan to send the drug package to his residence, and that he had agreed to accept delivery of the drug package in exchange for $200 and an ounce of marijuana for his personal consumption.

Park further assisted in the investigation by contacting Salinas on his telephone while the officers listened and recorded the conversation. During the conversation, Park advised Salinas that the drug package had been delivered to the residence, and Salinas stated that he would come to the residence to retrieve it. When Salinas arrived at the residence, he was arrested.

Park, Wilson, and Salinas were jointly charged with multiple drug offenses as parties to the crimes. Before trial, Park filed a motion to suppress the evidence, contending that the officers’ entry and search of the residence without a warrant was unauthorized and that his subsequent questioning and warrantless arrest flowing therefrom were illegal. After a hearing, the trial court denied the motion, finding that the warrantless entry and search were authorized based upon Park’s and Wilson’s consent and, alternatively, based upon exigent circumstances.

The statements provided by Wilson and Park to the officers during the investigation had been recorded by audiotape and were played for the jury at trial. Park testified in his defense, admitting his involvement in the plan to accept delivery of the drug package at his residence and further admitting that the drug contraband seized from his person and his bedroom belonged to him. At the conclusion of the trial, the jury found Park guilty of the drug trafficking and misdemeanor drug possession offenses.

1. Park contends that the trial court erred in denying his motion to suppress the drug evidence seized after the warrantless entry and search of his residence. We disagree.

In ruling on a motion to suppress, the trial court sits as the trier of fact, and the court’s findings are analogous to a jury verdict and will not be disturbed when the record contains any evidence to support those findings. When reviewing a trial court’s ruling on a motion to suppress, the evidence must be construed most favorably toward the court’s findings unless those findings are clearly erroneous. Further, in reviewing the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial.

(Citations and punctuation omitted.) Herring v. State, 279 Ga. App. 162 (630 SE2d 776) (2006).

The trial court found that Park and Wilson had freely and voluntarily consented to the search of their residence, and thus, the warrantless search was authorized. The record evidence supports the trial court’s finding.

Even assuming the illegality of the initial entry and search, a party’s subsequent consent to the search, which is freely and voluntarily given, may serve as an independent act of free will that purges the primary taint and authorizes admission of the evidence. See Spence v. State, 281 Ga. 697, 700-701 (3) (642 SE2d 856) (2007); State v. Brown, 269 Ga. App. 875, 877 (605 SE2d 628) (2004). See also Brown v. Illinois, 422 U. S. 590, 599 (II) (95 SC 2254, 45 LE2d 416) (1975) (in determining whether evidence is “fruit of the poisonous tree,” “the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which [the] instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint”) (citations and punctuation omitted). Several factors for courts to consider in addressing this issue include “the time elapsed between the illegality and the acquisition of the evidence; the presence of intervening circumstances; and the purpose and flagrancy of the official misconduct.” (Punctuation and footnote omitted.) Spence, supra, 281 Ga. at 700 (3), citing Brown, supra, 422 U. S. at 603-604 (III). See also Brown, supra, 269 Ga. App. at 877.

“A warrantless search of a residence may be authorized by the consent of any person who possesses a sufficient relationship to the premises to be inspected.” (Citation and punctuation omitted.) Pike v. State, 265 Ga. App. 575, 577 (1) (594 SE2d 753) (2004). Here, the evidence established that Park’s roommate, Wilson, gave the officers consent to search the common areas of the residence. After Park arrived at the residence, he likewise consented to the searches of his bedroom and of his person.

Park nevertheless contends that the consents were not freely and voluntarily given. Park suggests that the consents were given under coercion and duress since several officers were present and they had been held at gunpoint, handcuffed, and placed on the ground during their detentions.

“When the state relies on a consent search, it bears the burden of showing that the consent was voluntarily given, and not the result of duress or coercion, either express or implied. Voluntariness is a question of fact to be determined by the trial court from all of the circumstances.” (Punctuation and footnote omitted.) Silverio v. State, 306 Ga. App. 438, 446 (3) (702 SE2d 717) (2010). See also Code v. State, 234 Ga. 90, 93 (III) (214 SE2d 873) (1975).

Here, the officers testified that they did not coerce, threaten, or offer any hope of benefit to obtain the consents. Although the evidence reflects that the officers previously had their guns drawn when they approached Wilson for the takedown and approached Park prior to his arrest, the officers testified that their guns had been placed back in their holsters by the time that the consents were requested and obtained. See Smith v. State, 165 Ga. App. 333, 335 (2) (299 SE2d 891) (1983) (concluding that the defendant had freely and voluntarily consented to the search of his vehicle since the officers were no longer pointing weapons at him when the consent was requested). Even if Wilson and Park were being detained in handcuffs when they consented to the search, “voluntary consent may be given while a suspect is handcuffed.” (Footnote omitted.) Silverio, supra, 306 Ga. App. at 446 (3). And although approximately six to eight officers were present at the scene, such did not require a finding of coercion. See id. (“The presence of several police officers does not require a finding of coercion, although it merits close judicial scrutiny.”) (footnote omitted). See also Code, supra, 234 Ga. at 94 (III) (concluding that the presence of approximately 11 police officers surrounding the house does not ipso facto require a finding of coercion). There was no evidence that the officers were acting in a threatening manner.

Significantly, at the motion hearing and at trial, the State played an audio recording of the conversations that Wilson and Park had with the officers. The audio recording has also been submitted for our appellate review. In the audio recording, the officers spoke to Wilson and Park in normal tones and did not use threats or coercion. Wilson and Park can be heard giving their express consents to the searches and cooperating with the officers by providing information. Based upon the evidence presented, the trial court was authorized to find that Wilson and Park had freely and voluntarily consented to the search under permissible circumstances, without duress or coercion. See Silverio, supra, 306 Ga. App. at 446 (3).

The trial court was also authorized to find that there was no evidence of flagrant misconduct in this case. See Spence, supra, 281 Ga. at 701-702 (3). The warrantless entry and search followed the valid execution of a controlled delivery of the drug package to the residence. See Nelson v. State, 271 Ga. App. 658, 661-662 (1) (c) (610 SE2d 627) (2005); Inglett v. State, 239 Ga. App. 524 (521 SE2d 241) (1999). See also United States v. McGregor, 31 F3d 1067 (11th Cir. 1994). Moreover, when Wilson accepted the package and was detained, the door to the residence was open and the officers observed four additional adult occupants. The officers explained that they were concerned about officer safety since they were unsure of whether the occupants were armed and dangerous. Under these circumstances, the trial court was authorized to find that the officers did not engage in flagrant misconduct, but rather, perceived that entry and a protective sweep of the residence was necessary to secure the occupants and to ensure officer safety. Nelson, supra, 271 Ga. App. at 660-662 (1) (a)-(c); Inglett, supra, 239 Ga. App. at 525 (1).

In analyzing the attenuation factors set forth in Brown, supra, even assuming that there was no lapse of time between the assumed illegal conduct and the consents, the trial court was presented with evidence reflecting that Wilson’s and Park’s consents to the search were acts of free will that were sufficiently attenuated from any assumed illegality of the search. See Spence, supra, 281 Ga. at 701-702 (3). Accordingly, the evidence discovered during the search was admissible and the trial court’s denial of the motion to suppress was proper. Id.

2. Park also challenges the sufficiency of his trafficking in marijuana conviction. He argues that his conviction must be vacated since there was no evidence that he possessed the package of marijuana or had the intention to exercise authority and control over it. Again, we disagree.

Decided March 23, 2011.

Jon D. Haskin, for appellant.

Lee Darragh, District Attorney, Shiv Sachdeva, Assistant District Attorney, for appellee.

Park, along with his co-defendants Wilson and Salinas, was charged as a party to the trafficking in marijuana crime.

OCGA § 16-2-20 pertinently provides: (a) Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of the commission of the crime, (b) A person is concerned in the commission of a crime ... if he (3) [intentionally aids or abets in the commission of the crime.

(Punctuation and emphasis omitted.) Williams v. State, 199 Ga. App. 566, 567-568 (1) (405 SE2d 716) (1991). Here, the trial evidence, including Park’s own admissions, established that Park, Wilson, and Salinas were willing participants in the drug offenses and that Park had agreed to accept delivery of the package of marijuana at his residence in exchange for $200 and an ounce of marijuana for his personal consumption. Park also admitted that he was aiding Salinas’s efforts to commit the trafficking offense by giving Salinas a safe haven and a means to avoid law enforcement detection. The trial evidence further established that the marijuana contained in the package weighed 12.46 pounds, a quantity exceeding that defined for the drug trafficking offense. See OCGA § 16-13-31 (c) (“Any person who knowingly . . . has possession of a quantity of marijuana exceeding 10 pounds commits the offense of trafficking in marijuana[.]”). Regardless of “[wjhether he had physical possession of the cocaine, [Park] aided and abetted its actual physical possession and is guilty of the offense of trafficking under OCGA § 16-13-31 [(c)] and under [OCGA] § 16-2-20, as a party to the crime[.]” (Citation and punctuation omitted.) Dukes v. State, 186 Ga. App. 815 (369 SE2d 259) (1988). Park’s conviction, therefore, was authorized. See Williams, supra, 199 Ga. App. at 567-568 (1); Dukes, supra, 186 Ga. App. at 815.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

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

       Id.

       The trial court also held that the warrantless entry and search of the residence was authorized by exigent circumstances. Pretermitting whether exigent circumstances existed, however, the warrantless search was valid based upon the consents to the search, as fully explained herein.

       After the controlled delivery, an officer began the process for obtaining a search warrant, but he ceased his efforts after Wilson and Park consented to the search.

       The evidence establishes that since the package had previously been misdirected to Park’s neighbor and was not properly addressed, the officers lacked sufficient information to identify with certainty the proper location and individuals linked to the package. Accordingly, the officers executed the controlled delivery as part of their investigation.


author: MlKELL, Judge.

text:
    A10A1874.
    A10A1875.
    A10A1876.
    WINSTAR DEVELOPMENT, INC. et al. v. SUNTRUST BANK. PINE GROVE BUILDERS, INC. et al. v. SUNTRUST BANK. 82 ACRES, INC. et al. v. SUNTRUST BANK.
    (708 SE2d 604)
   MlKELL, Judge.

In these consolidated appeals, appellants Winstar Development, Inc. (“Winstar”), Pine Grove Builders, Inc. (“Pine Grove”), 82 Acres, Inc. (“82 Acres”), Robert C. Belans, and Gregory W. Shoops challenge the trial court’s orders confirming the foreclosure sales of three properties that appellee SunTrust Bank (“the Bank”) held as security for commercial loans to appellants. After a consolidated hearing on December 21, 2009, the Superior Court of Paulding County confirmed the foreclosure sales of the properties involved in Case Nos. A10A1874 and A10A1875, entering two separate orders dated January 16, 2010. The court resumed the hearing on January 15, 2010, to conclude Case. No. A10A1876, and entered its order confirming the foreclosure sale in that case on March 8, 2010. In each case, appellants argue that the orders confirming the foreclosure sales must be reversed because service upon each appellant was insufficient. In Case No. A10A1875, appellants also argue that there was no competent evidence to support the trial court’s order that the foreclosure sale was ever consummated. We consolidate these cases for disposition in a single appeal, and the facts pertinent to each foreclosure sale follow.

In Case No. A10A1874, Winstar executed two promissory notes in favor of the Bank, one in August 2006, and the other in January 2008. The notes were secured by property located in Paulding County, as evidenced by the Deed to Secure Debt and Security Agreement, which appellant Gregory W Shoops signed on Winstar’s behalf in his capacity as secretary. Shoops and appellant Robert C. Belans also guaranteed the payment of the notes to the Bank. Winstar and its guarantors defaulted on the notes, and the Bank foreclosed on the property on August 5, 2008. The Bank reported the foreclosure sale to a judge in Paulding County Superior Court and applied for confirmation. A hearing on the application was scheduled to occur on September 30, 2008, but was continued pursuant to the Bank’s request. On July 9, 2009, the Bank filed a motion for service by publication on appellant Belans only, which the trial court granted on August 5, 2009.

In Case No. A10A1875, Pine Grove executed a promissory note in favor of the Bank on January 10, 2007. Shoops signed the promissory note in his capacity as vice president of Pine Grove. The note was also secured by property located in Paulding County, as evidenced by the Deed to Secure Debt and Security Agreement, which Shoops signed on Pine Star’s behalf in his capacity as secretary. Belans and Shoops each guaranteed the payment of the note to the Bank. After Pine Grove and its guarantors defaulted on the notes, the Bank foreclosed on the property on August 5, 2008. The Bank reported the foreclosure sale and applied for confirmation. A hearing on the application was scheduled to occur on October 23, 2008, but the hearing was continued pursuant to the Bank’s request. On July 9, 2009, the Bank filed a motion for service by publication on appellant Belans only, which the trial court granted on August 10, 2009.

In Case No. A10A1876, 82 Acres executed a promissory note and security deed in favor of the Bank on November 29, 2006. Belans signed the security deed as president of 82 Acres and Shoops signed as its secretary/treasurer. The note was also secured by property located in Paulding County, as evidenced by the deed. Belans and Shoops each guaranteed the payment of the note to the Bank. 82 Acres and its guarantors defaulted on the notes, and the Bank foreclosed on the property on October 7, 2008. The Bank reported the foreclosure sale and applied for confirmation in Paulding County Superior Court. The trial court scheduled a hearing on the application, which was to occur on January 27, 2009. On July 9, 2009, the Bank filed a motion for service by publication on appellant Belans only, which the trial court granted on August 5, 2009.

The trial court commenced the hearing on all three applications on December 21, 2009. Lance Robinson, a private process server utilized in the cases involving Winstar and Pine Grove (Case Nos. A10A1874 and A10A1875), testified that he went to Shoops’s house at approximately 6:40 p.m. on December 15, 2009; that the lights were on and he knocked on the door to no avail; that he passed by the house again and saw that the lights were out, leading him to conclude that someone was at the house; and that a BMW fitting the description of the car that he had been given passed by him, then proceeded to pass the house. Robinson explained that another process server had been to the address seven times and had seen the BMW parked in the driveway at the house.

Robinson further testified that after the BMW passed him, he drove up a neighboring driveway to give the impression that he was visiting someone else; that the BMW then turned into Shoops’s driveway but by the time he pulled into the driveway behind the BMW, the garage door was almost closed; that he knocked on the garage door and announced that he had legal papers for Shoops and Pine Grove that he was leaving outside the garage door; and that he could hear a person in the garage, but no one responded. Robinson noticed that a white truck that had been following the BMW pulled into the other driveway at the house, but when he approached the white truck, the driver backed up and left. Robinson further testified that he waited around and the white truck returned, but that when the driver of the truck noticed him, the truck sped away. Robinson testified that he did not know the identity of either driver and did not actually hand the service papers to anyone. However, neighbors had told the prior process server that Shoops lived at the house; and on the front step of the house Robinson saw a package from UPS that was addressed to Shoops.

Also admitted into evidence were affidavits of service executed by Robinson, in which he averred that “on December 15, 2009, at 8:09 p.m., he served Winstar ... by personally serving person believed to be Greg Shoops at 4331 Avary PL, Douglasville GA 30135” with a copy of the notice of hearing. A similar affidavit is included in the record with respect to Robinson’s service on Shoops, individually, as well as on behalf of Pine Grove. No opposing evidence was offered by appellants.

The trial court ruled from the bench that service on Pine Grove through the Secretary of State was sufficient and that the personal service on Shoops, who had made a “diligent effort to avoid service,” was also sufficient. Additionally, the court ruled that service on Belans by publication was proper. After Robinson testified again about the service on Shoops in connection with Winstar, the court also ruled that service was proper on all defendants in that case as well. Regarding 82 Acres, the record contained a sheriffs entry of service, showing that Shoops had been personally served on December 15, 2008. The address listed on the entry of service was the same as that used by Robinson to perfect service. The trial court ruled that service on all defendants in 82 Acres was proper.

1. Failure to Serve Corporate Defendants and Shoops. In all three appeals, appellants argue in their first enumeration of error that the order confirming the sale must be reversed because the Bank failed to serve notice of the hearing upon Winstar and Shoops, Pine Grove and Shoops, and 82 Acres and Shoops, respectively. We disagree.

OCGA § 44-14-161 (c) provides that “[t]he court shall direct that a notice of the hearing shall be given to the debtor at least five days prior thereto; and at the hearing the court shall also pass upon the legality of the notice, advertisement, and regularity of the sale.” Even though the five-day notice requirement set forth in the confirmation statute supersedes the service requirements of OCGA § 9-11-4, we nonetheless look to “the principles embodied in OCGA § 9-11-4 (d) [now codified at OCGA § 9-11-4 (e)] for an understanding of what personal service means.” The current Code provides that a corporation may be served by personal service upon an officer of the corporation, and if such service cannot be accomplished, upon the Secretary of State. Additionally, as an individual, Shoops was to be served

personally, or by leaving copies thereof at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.

In this case, the trial court concluded that all parties had been properly served.

In determining whether the trial court erred in its factual finding that [the appellants were] personally served, we apply the following principles: [w]here a defendant claims there was a failure of service, the trial court has the authority to decide as a factual matter whether service has occurred. This finding will not be disturbed as long as there is some evidence to support it. Further, when a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service. The process server’s return of service can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.

Appellants Winstar, Pine Grove, 82 Acres, and Shoops have not met this burden.

In support of their argument that service was insufficient, appellants rely on Cook v. Bright. In that case, the officer serving process knew the defendant lived at the residence, knocked on the door and saw someone come to the window, and then left the summons in the front door. We concluded that the service was insufficient because it was not left with a person of suitable age and discretion who resided at the home, pointing out that the result may have been different had there been evidence that the defendant tried to evade service. There was no evidence in Cook that the officer saw the defendant or talked to him through the door that the defendant refused to open. Similarly, in Thomas v. Johnson, another case cited by appellants, we found that tacking the documents to the door was insufficient service where there was no evidence that the server saw or spoke to the defendant or that the defendant was aware of the process server’s presence.

Although we acknowledge that the facts in the case sub judice are not as compelling as those in cases wherein the process server actually talked to a suitable person residing in the residence who then refused service, there was undisputed evidence in the record from which the trial court could have concluded that appellants were attempting to evade service.

Robinson testified that prior to his involvement in the case, another process server had been to the address seven times. Robinson had a description of the vehicle that had been parked at the address, which was a silver 3 Series BMW bearing a Georgia vanity plate, and testified that the other process server had seen the BMW parked in the upper driveway by the garage doors on each of the seven occasions that he attempted service. Additionally, Robinson knew that the neighbors had told the other process server that Shoops resided at the house, and Robinson saw a package addressed to Shoops at the door. When Robinson saw the vehicle meeting the description that he had received, he followed it but tried not to alert the BMW driver to his presence, but the driver noticed him and drove past the address of the house. Once Robinson turned into a different driveway, the BMW driver then turned into the driveway. Robinson pulled into the driveway and approached the garage door, which was not yet closed, and announced that he had papers. Robinson heard rustling in the garage, but no one responded.

It is the duty of a defendant to accept and submit to the service of process when he is aware of the process server’s purpose. It is generally held that if the process server and the defendant are within speaking distance of each other, and such action is taken as to convince a reasonable person that personal service is being attempted, service cannot be avoided by physically refusing to accept the summons.

As stated earlier, “[t]his Court will not disturb the factual finding of the trial court that service was effected as long as there is some evidence to support it.” Additionally, the question of whether a defendant has presented evidence “sufficient to overcome facts reflected in a return of service is a question to be resolved by the trial court as the factfinder.” There was no controverting evidence. Therefore, we will not disturb the trial court’s finding that Winstar, Pine Grove, 82 Acres, and Shoops were properly served.

2. The second error enumerated in each of the three appeals is that the trial court erred in concluding that service by publication was sufficient as to Belans. Because Belans had insufficient notice of the hearing, we agree.

At the confirmation hearing, appellants first attacked as legally insufficient the service upon Belans by publication. But in Belans I, which was decided after the hearing in the instant case, we held that service by publication of the notice of a confirmation hearing was legally sufficient. Thus, appellants do not assert this argument on appeal, arguing instead that the published advertisement for service on Belans provided no specifics as to the date or time of the hearing as is required under the confirmation statute, which argument was made before the trial court.

The statute governing service by publication, OCGA § 9-11-4 (f) (l), does not require that the date and time of the confirmation hearing be published in the notice of publication. However, the statute governing notice of a confirmation hearing, OCGA § 44-14-161 (c), requires that notice of the hearing be given to the debtor at least five days prior thereto. The Bank offers no evidence to show that the notice requirements of OCGA § 44-14-161 (c) were met here, and we reject the Bank’s argument that by complying with OCGA § 9-11-4 (f) (1), it satisfied the necessary requirements.

The Bank also contends that we should conclude that sufficient publication occurred in the instant case because appellants attacked the contents of a notice published in another pending action. But again, there is no evidence that the requirements of publication were met here. Accordingly, we conclude that the trial court erred when it found that Belans was served properly. Consequently, we remand to the trial court with direction that it set aside that portion of the confirmation order finding that Belans had been properly served and schedule a second confirmation hearing as to appellant Belans.

3. In the remaining enumeration of error, asserted only in Case No. A10A1875, appellants contend that the trial court’s finding that the foreclosure sale was consummated is not supported by any competent evidence. Specifically, appellants contend that the Bank was required to admit into evidence the deed under power of sale from the foreclosure sale. We disagree.

OCGA § 44-14-161 (c) requires the trial court to pass on the legality of the notice, the advertisement, and the regularity of the sale. “When a power of sale is exercised all that is required of the foreclosing party is to advertise and sell the property according to the terms of the instrument, and that the sale be conducted in good faith.” In the case sub judice, the Bank presented the testimony of attorney Laura Ketchum that she witnessed the foreclosure sale at issue; that the foreclosure sale occurred on August 5, 2008, outside the annex of the Paulding County courthouse; that the sale consisted of several lots, which Ketchum identified by their lot numbers; that the foreclosure notice was read in its entirety and the sale was opened for bidding; the Bank submitted an opening bid of $220,000; and that there were no other bidders. Accordingly, we conclude that there was evidence to support the trial court’s finding that the sale was consummated.

Appellants cite no contravening authority in support of their argument that the only competent evidence that can establish the regularity of the sale is the deed under power of sale. In their reply brief, appellants cite Champs-Elysses v. Fulton Fed. Savings &c. for the proposition that one must look to acts occurring before and after a sale to determine the regularity of the sale. But Champs-Elysses involved the cancellation of a deed caused by a buyer’s failure to pay the purchase price after the sale. It does not mandate the filing of the deed under power of sale to establish the regularity of a sale in accordance with OCGA § 44-14-161 (c). Thus, this enumeration of error fails.

Judgments affirmed in part and reversed in part in Case Nos. A10A1874, A10A1875 and A10A1876, and cases remanded for a confirmation hearing as to appellant Belans.

Smith, P. J., and Adams, J., concur in judgment only.

Decided March 23, 2011.

Schreeder, Wheeler & Flint, John A. Christy, Philip R. Green, for appellants.

Husch, Blackwell & Sanders, Camden B. Scearce, Jr., Caroline B. Stefaniak, Timothy L. Mickel, for appellee.

       In Case Nos. A10A1874 and A10A1875, the Bank was the successor to Hometown Bank of Villa Rica. In Case No. A10A1876, the Bank was the successor by merger to Community Trust Bank.

       The guaranty contained the following address for Shoops: 4331 Avary PI., Douglasville, GA 30135-4973.

       Robinson testified that he had several sets of papers to serve, four of which were addressed to Shoops, individually, three for Pine Grove, and one for Winstar. Robinson could not recall if he specifically announced that he had papers for Winstar.

       The record also contains an affidavit of diligence from Keith Wright, attesting that he attempted to serve Winstar on November 2, 2009, at a different address, and found a vacant building with no forwarding address.

       See Vlass v. Security Pacific Nat. Bank, 263 Ga. 296, 298-299 (2) (430 SE2d 732) (1993).

        Ameribank, N.A. v. Quattlebaum, 220 Ga. App. 345, 347 (2) (469 SE2d 462) (1996).

       OCGA § 9-11-4 (e) (1).

       OCGA § 9-11-4 (e) (7).

       (Citation, punctuation and emphasis omitted.) Newsome v. Johnson, 305 Ga. App. 579, 581-582 (1) (699 SE2d 874) (2010). See also Vibratech, Inc. v. Frost, 291 Ga. App. 133, 140 (1) (b) (661 SE2d 185) (2008) (“Factual disputes regarding service are to be resolved by the trial court, and the court’s findings will be upheld if there is any evidence to support them”) (citation, punctuation and emphasis omitted).

       150 Ga. App. 696 (258 SE2d 326) (1979).

       Id. at 699.

       Id.

       205 Ga. App. 753 (423 SE2d 306) (1992).

       Id. at 753-754.

       See Newsome, supra at 582-583 (1) (service proper where papers left outside of door after process server verified defendant’s identity through the door, but defendant refused to open the door); Tavakolian v. Agio Corp., 304 Ga. App. 660, 665 (4) (697 SE2d 233) (2010) (service sufficient where person meeting the description of the defendant’s wife declared that she was not the defendant and then closed the garage door and process server dropped complaint and summons on the garage floor); Jacobson v. Garland, 227 Ga. App. 81, 83 (1) (487 SE2d 640) (1997) (service proper where process server left papers outside of door after he spoke with the wife of the defendant, informed her that he was serving papers on her husband, and she knowingly attempted to evade service by closing the door and refusing to accept the papers); Hickey v. Merrit, 128 Ga. App. 764, 765 (197 SE2d 833) (1973) (service sufficient where papers left outside door after defendant was seen through the window and talked to through the door but refused to open the door).

       (Citation, punctuation and footnote omitted.) Jacobson, supra.

        GMAC Mtg. Corp. v. Bongiorno, 277 Ga. App. 328, 329 (626 SE2d 536) (2006).

       (Citation and punctuation omitted.) Carter v. Progressive Ins. Co., 246 Ga. App. 562, 564 (1) (541 SE2d 418) (2000).

       See Newsome, supra at 581-582 (1).

       We note that Belans has recently appeared before this court four times in appeals of orders confirming foreclosure sales. In Belans v. Bank of America, 303 Ga. App. 35, 39 (2) (692 SE2d 694) (2010) (Belans I), Belans v. Bank of America, 303 Ga. App. 654, 659 (2) (694 SE2d 725) (2010) (Belans II), and Belans v. Bank of America, 304 Ga. App. XXTV, Case No. A10A0600 (decided July 7, 2010) (unpublished opinion), we reversed orders confirming foreclosure sales because the evidence was insufficient as to the involved properties’ fair market values. In Belans v. Bank of America, 306 Ga. App. 252 (701 SE2d 889) (2010) (Belans III), we affirmed the confirmation of the foreclosure sales.

       Supra.

       Id. at 38 (1).

       OCGA § 9-11-4 (f) (1) (C) provides, in pertinent part, that:
      When the court orders service by publication, the clerk shall cause the publication to be made in the paper in which sheriffs advertisements are printed, four times within the ensuing 60 days, publications to be at least seven days apart. The party obtaining the order shall, at the time of filing, deposit the cost of publication. The published notice shall contain the name of the parties plaintiff and defendant, with a caption setting forth the court, the character of the action, the date the action was filed, the date of the order for service by publication, and a notice directed and addressed to the party to be thus served, commanding him or her to file with the clerk and serve upon the plaintiffs attorney an answer within 60 days of the date of the order for service by publication and shall bear teste in the name of the judge and shall be signed by the clerk of the court. . . .

       See Quattlebaum v. Ameribank, N.A., 227 Ga. App. 517-518 (1) (489 SE2d 319) (1997) (physical precedent only) (trial court could conduct a second confirmation hearing as to party who did not receive sufficient notice of first confirmation hearing), aff'd, Ameribank, N.A. v. Quattlebaum, 269 Ga. 857 (505 SE2d 476) (1998).

       (Punctuation and footnote omitted.) Hudson Trio, LLC v. Buckhead Community Bank, 304 Ga. App. 324, 329 (3) (696 SE2d 372) (2010).

       247 Ga. 127 (274 SE2d 482) (1981)

       Id. at 129.

       Id.


text:
    A10A1954.
    ALCORN et al. v. APPLETON.
    (708 SE2d 390)
   SMITH, Presiding Judge.

Tiffany Marie Alcorn, as executrix of the estate of her father Richard Alcorn, and her sister, Amy Darlene Alcorn (“the Alcorns”) appeal from the superior court’s grant of partial summary judgment to their father’s second wife, Bonnie Ann Appleton f/k/a Bonnie Ann Alcorn (“Appleton”). The Alcorns assert that Appleton contractually waived her right to receive the proceeds of their father’s 401(k) plan and life insurance plan in a settlement agreement incorporated into an order of separate maintenance entered before their father’s death. The trial court ruled that the Alcorns’ contractual claims are precluded because the “waiver executed in the Settlement Agreement was not ERISA compliant.” For the reasons set forth below, we reverse.

The record in this case shows that the parties submitted matters outside the pleadings to the trial court that were not excluded by the trial court. We will therefore treat the trial court’s order partially granting Appleton’s motion to dismiss as the partial grant of summary judgment. Thompson v. Avion Systems, 284 Ga. 15, 16-17 (663 SE2d 236) (2008).

On appeal from the grant of summary judgment this [c]ourt conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation and punctuation omitted.) Cox Enterprises v. Nix, 274 Ga. 801, 804 (2) (560 SE2d 650) (2002).

So viewed, the record shows that Richard Alcorn and Appleton entered into a settlement agreement on July 7, 2007, that provided:

Each party shall have the right to name any person or organization they choose as beneficiary of their life insur-anee policies. Each party waives any interest they have in the other party’s life insurance proceeds, cash value, or otherwise.
The parties agree to waive and release any rights or claims they may now have to any retirement pay, benefits, or privileges earned by the other during the marriage.
The Wife hereby waives all rights to claim any interest or share in the Husband’s [individual Retirement Accounts, which shall become his sole property. In the same manner, the Husband hereby waives all rights to claim any interest or share in the Wife’s Individual Retirement Accounts, which shall become her sole property.

The settlement agreement was incorporated into an Order of Separate Maintenance on September 25, 2007, and Alcorn died on April 11, 2008. It is undisputed that at the time of his death, Alcorn participated in two Atlantic Southeast Airlines (ASA) sponsored ERISA benefit programs: a 401(k) plan and a life insurance plan. It is also undisputed that Alcorn did not designate a beneficiary for his 401(k) plan and that he designated Appleton as the beneficiary of his life insurance plan. Finally, the parties do not dispute that the proceeds of both of these plans were paid to Appleton in accord with the United States Supreme Court’s decision in Kennedy v. Plan Administrator &c., 555 U. S. 285 (129 SC 865, 172 LE2d 662) (2009).

After the plan proceeds were distributed to Appleton, the Alcorns filed suit against her for breach of contract (the settlement agreement) and other claims unrelated to this appeal. In their complaint, the Alcorns assert Appleton breached the settlement agreement by pursuing the retirement and life insurance benefits of the deceased and refusing to sign a waiver of her rights to the plan benefits despite repeated requests to do so.

Appleton filed a motion to dismiss, asserting that the Alcorns failed to state a claim upon which relief could be granted because she “is the rightful beneficiary of [the deceased]’s ERISA Benefits. Thus, all claims relating to those benefits, no matter how Plaintiffs denominate them, should be dismissed.” The trial court granted the motion with regard to the Alcorns’ breach of contract claim. It concluded that Appleton “was properly awarded the benefits under the ERISA plans pursuant to the plan documents inasmuch as any waiver executed in the Settlement Agreement was not ERISA compliant.” The trial court relied “most notably” upon the Supreme Court’s recent holding in Kennedy, supra, in reaching this conclusion.

Decided March 23, 2011

On appeal, the Alcorns assert that the Supreme Court’s decision in Kennedy, supra, does not bar their breach of contract claim against Appleton because this case presents the exact issue which the Supreme Court declined to reach in Kennedy, supra. They point to decisions from other jurisdictions in which courts have allowed state law claims seeking to recover funds that have already been distributed from an ERISA plan. See Estate of Hall v. Hall, 2009 U. S. Dist. LEXIS 79027 (E.D. Pa. 2009) (distinguishing Kennedy in case involving suit by estate against ex-wife after benefits distributed); Sweebe v. Sweebe, 474 Mich. 151, 160 (712 NW2d 708) (2006) (holding “while a plan administrator is required by ERISA to distribute the proceeds from a plan to a named beneficiary, the named beneficiary can then be found to have waived the right to retain the distributed proceeds”); Pardee v. Pardee, 112 P3d 308, 316 (Ok. Ct. App. 2004) (ERISA does not preempt enforcement of divorce decree regarding allocation of ERISA benefits because “pension plan funds were no longer entitled to ERISA protection once the plan funds were distributed”).

We are persuaded by the reasoning of these cases and therefore reverse the trial court’s partial grant of summary judgment in favor of Appleton. This result is consistent with Georgia decisions concluding that ERISA does not preempt claims against funds already distributed from an ERISA plan. See Eickhoff v. Eickhoff, 263 Ga. 498, 503-504 (5) (435 SE2d 914) (1993), overruled on other grounds, Lee v. Green Land Co., 272 Ga. 107, 108 (527 SE2d 204) (2000). See also Clark v. Clark, 969 FSupp. 1319, 1323-1325 (S.D. Ga. 1997).

The Supreme Court’s decision in Boggs v. Boggs, 520 U. S. 833 (117 SC 1754, 138 LE2d 45) (1997), does not require a different result because Boggs involved pre-distribution funds still in control of the plan administrator. Id. See also Sweebe, supra, 712 NW2d at 713 (distinguishing Boggs); Pardee, supra, 112 P3d at 313-314 (distinguishing Boggs). The Eleventh Circuit case relied upon by Appleton is also inapposite because it involved pre-distribution funds as well. See Lasche v. Lasche Basic Profit Sharing Plan, 111 F3d 863 (11th Cir. 1997).

Judgment reversed.

Mikell and Adams, JJ., concur.

Glaser, Currie & Bullirían, Mark B. Bullman, for appellants.

David J. Hungeling, for appellee.

       In Kennedy, the plaintiff estate sued the ERISA plan administrator for wrongfully distributing plan proceeds to the decedent’s ex-wife, who had waived her right to benefits in the divorce decree. 555 U. S. at 290 (I). The Supreme Court held that “the plan administrator did its statutory ERISA duty by paying the benefits to [decedent’s ex-wife] in conformity with the plan documents.” Id. at 299-300 (III). In a footnote, the Supreme Court noted that it did not “express any view as to whether the Estate could have brought an action in state or federal court against [decedent’s ex-wife] to obtain the benefits after they were distributed.” Id. at 300 (III), n. 10.


text:
    A10A2088.
    STEGALL v. THE STATE.
    (708 SE2d 387)
   SMITH, Presiding Judge.

Desmond Michael Stegall was convicted of rape, two counts of aggravated child molestation, and aggravated sodomy on a friend’s young daughter. His amended motion for new trial was denied, and he appeals, asserting that his trial counsel was ineffective, that the State failed to prove venue, and that the trial court erred in admitting evidence of a similar transaction. We find no error and affirm.

1. Stegall’s claims of ineffective assistance of trial counsel are waived. Appellate counsel was appointed for Stegall. Appellate counsel filed a motion for new trial and later amended it, but made no allegation of ineffective assistance of trial counsel. Appellate counsel did not raise the issue at the hearing on the motion for new trial, and trial counsel was not called to testify.

Our law requires that a claim for ineffective assistance of counsel must be raised at the earliest practical moment. This rule requires that a claim be raised before appeal if the opportunity to do so is available; that the ability to raise the issue on a motion for new trial represents such an opportunity; and that the failure to seize that opportunity is a procedural bar to raising the issue at a later time.

(Citations, punctuation and footnote omitted; emphasis in original.) Clay v. State, 232 Ga. App. 541, 542 (2) (502 SE2d 267) (1998). Since Stegall had an opportunity to raise any claim of ineffectiveness below but failed to do so, we may not consider it for the first time on appeal.

2. Stegall asserts that the State failed to prove venue in Clayton County as to Counts 2 and 3, aggravated child molestation and aggravated sodomy. We disagree.

Under our Constitution, proper venue in all criminal cases is the county in which the crime was allegedly committed and is a jurisdictional fact that must be proved by the prosecution beyond a reasonable doubt. The prosecution may prove venue by direct and circumstantial evidence. The standard of review is whether, considered in the light most favorable to the prosecution, the State proved the essential element of venue beyond a reasonable doubt.

(Citations, punctuation and footnote omitted.) Payne v. State, 290 Ga. App. 589, 589-590 (2) (660 SE2d 405) (2008), aff'd, 285 Ga. 137 (674 SE2d 298) (2009). The evidence showed that the victim’s family lived in Fayetteville, in Clayton County, from 2003 until October 2004. The family moved to Gwinnett County for approximately one year, then moved to Ellenwood, in Clayton County, and lived there from December 2005 through March 2006. Stegall lived with the family in Fayetteville and occasionally spent the night at the home in Ellenwood.

The victim testified that Stegall committed acts of oral sodomy upon her in the same room where the rape occurred, in Fayetteville. The victim’s mother testified that the victim told her Stegall committed oral sodomy upon her in Clayton County. A detective testified that the victim told him that acts of intercourse, oral sodomy, and anal sodomy occurred in Clayton County and that his interviews with the child and the parents revealed that acts of rape, oral sodomy, and anal sodomy occurred in Clayton County.

This evidence was sufficient to show venue. See Thompson v. State, 277 Ga. 102, 104 (3) (586 SE2d 231) (2003) (evidence that child molestation occurred at residence and residence was in Houston County sufficient to prove venue). The testimony, taken as a whole, including the victim’s testimony and her statements to investigating officers, “was sufficient evidence from which the jury could conclude beyond a reasonable doubt that the crimes were committed in [Clayton] County.” Payne, supra, 290 Ga. App. at 590-591 (2). While Stegall points to some confusion in the child’s testimony, any conflicts in the evidence were for the jury to decide. Ortiz v. State, 295 Ga. App. 546, 548 (1) (672 SE2d 507) (2009).

3. Finally, Stegall asserts that the trial court erred in admitting evidence of a similar transaction. He contends that the testimony regarding an incident of child molestation committed simultaneously against the victim and her younger sister in Gwinnett County constituted inadmissible hearsay and that a detective’s testimony and a videotaped interview regarding that incident should not have been admitted.

At the pretrial hearing on admission of the similar transaction evidence, Stegall objected only that the evidence was insufficiently similar to the offense charged here. He did not object on any of the grounds he now asserts. Nor did he object to the admission into evidence of an audio recording of his police interview or the videotaped interview of the victim and her sister on the basis he now asserts, asking only that any mention of his prior criminal history be redacted. When the State sought to admit the videotape, in response to the trial court’s inquiry if he had any objection, Stegall’s counsel responded, “No.” “Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court.” (Citations and punctuation omitted.) State v. Tye, 276 Ga. 559, 562 (3) (580 SE2d 528) (2003). Even Whitehead v. State, 287 Ga. 242 (695 SE2d 255) (2010), which abolished the repetitive objection rule for similar transaction evidence, requires that the objection at issue be raised at some time for it to be preserved for appeal. Id. at 249 (2).

Decided March 23, 2011

Mack & Harris, Robert L. Mack, Jr., for appellant.

Tracy Graham-Law son, District Attorney, Billy J. Dixon, Assistant District Attorney, for appellee.

But even if Stegall had preserved his objections, we find no abuse of discretion in the admission of this evidence. “[T]he sexual molestation of young children or teenagers, regardless of the type of act, is sufficiently similar to be admissible as similar transaction evidence.” (Citation, punctuation and footnote omitted.) Kendrick v. State, 269 Ga. App. 831, 834 (3) (605 SE2d 369) (2004). In addition, the victim testified to the same acts of molestation, which were perpetrated upon her at the same time. While the Child Hearsay Act, OCGA § 24-3-16, does not apply to crimes merely witnessed by a child, see Woodard v. State, 269 Ga. 317, 321-323 (3) (496 SE2d 896) (1998), “Woodard is inapplicable here, because both girls were victims.” (Citation omitted.) Bunn v. State, 307 Ga. App. 381, 386 (3) (d) (705 SE2d 180) (2010). And “the admission of hearsay is harmless when it is cumulative of admissible evidence showing the same fact.” (Citations and punctuation omitted.) Wiggins v. State, 280 Ga. 627, 630 (2) (b) (632 SE2d 80) (2006). The trial court did not err in admitting this evidence.

Judgment affirmed.

Mikell and Adams, JJ., concur.

       The trial court merged one count of aggravated child molestation with the rape count.


author: Dillard, Judge.

text:
    A10A2094.
    COSBY et al. v. LEWIS et al.
    (708 SE2d 585)
   Dillard, Judge.

Richard Lewis and Priscilla Lewis, individually and as parents of Richard L. Lewis III, sued the Hancock County School District and several of its employees, including George Cosby and James Robbins, in both their official and individual capacities, claiming that defendants’ negligence caused the death of the Lewises’ son. Following a defense motion, most of the defendants were dismissed on sovereign-immunity grounds. However, based on Cosby and Robbins’s failure to file timely responsive pleadings, the trial court entered a default judgment against those two defendants in their individual capacities. Cosby and Robbins now appeal from the trial court’s denial of their motion to set aside the default judgment, arguing that the judgment was a nullity because the court lacked both subject matter and personal jurisdiction, and alternatively, arguing that the court erred by not opening the default judgment on the grounds of excusable neglect and proper case. For the reasons set forth infra, we reverse the trial court’s decision and remand the case for further proceedings consistent with this opinion.

The events underlying this appeal are unquestionably heart wrenching. In August 2006, Richard Lewis III and a group of his fellow classmates from Hancock Central High School traveled to Atlanta to attend an ROTC competition. Cosby and Robbins, both of whom were employees of Hancock Central High School, accompanied the students as chaperones. Shortly after arriving at the group’s hotel and assisting the students with checking into their rooms, Cosby, Robbins, and a few of the students allegedly left the hotel premises to get something to eat. And while Cosby and Robbins were away, Lewis and several other students decided to go swimming in the hotel’s pool. Shortly after entering the swimming pool, Lewis appeared to be in great distress and began drowning. Lewis was quickly pulled from the swimming pool and emergency medical technicians were called immediately. Tragically, neither the EMTs nor the emergency-room physicians at the hospital where Lewis was transported were able to revive him.

Thereafter, Lewis’s parents filed suit against the Hancock County School District and several of its employees but subsequently dismissed their lawsuit without prejudice. The Lewises then refiled their wrongful-death action against the same defendants, including Cosby and Robbins in both their official and individual capacities. And while the school district and the district superintendent filed timely answers to this complaint, Cosby and Robbins did not file their answers until well after the deadline for doing so, as a result of some confusion regarding whether they had been served.

All of the defendants, including Cosby and Robbins, thereafter filed a motion to dismiss the complaint, arguing, inter alia, that the Lewises’ claims were barred by the doctrines of sovereign immunity and official immunity. Upon considering this motion, the trial court entered an order dismissing the claims against Cosby and Robbins in their official capacities but granting a default judgment against them in their personal capacities based on their failure to file timely answers.

Two days after the entry of the default judgment, Cosby and Robbins filed a motion to set aside the judgment entered against them in their individual capacities. In that motion, Cosby and Robbins argued that (1) the Lewises’ claims were barred by the doctrines of sovereign immunity and official immunity, (2) the trial court lacked personal jurisdiction due to deficient service of process, and (3) the trial court should open the default on the grounds of excusable neglect and/or proper case under OCGA § 9-11-55 (b). Following a hearing on the matter, the Lewises filed a motion to dismiss the school district and several of its employees, which the trial court granted. And then, the trial court issued another order, ruling that Cosby and Robbins were entitled to immunity in their official capacities but were not entitled to immunity in their individual capacities because of their failure to file timely answers. In that same order, the court also found that service of process was not deficient and that Cosby and Robbins had not shown that the default should be opened pursuant to OCGA § 9-11-55 (b). Cosby and Robbins then sought and successfully obtained a certificate of immediate review from the trial court, and we granted their application for interlocutory appeal. This appeal follows.

1. Cosby and Robbins (hereinafter “appellants”) contend that the trial court erred in failing to vacate the default judgment. Specifically, appellants argue that they are entitled to official immunity as employees of the school district, and therefore, the trial court lacked the subject matter jurisdiction to enter a default.

At the outset, we note that, absent an abuse of discretion, “we will not reverse a trial court’s refusal to set aside a default judgment.” Nevertheless, “(t)he standard of review for a question of law on appeal is de novo,” during which “we owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” With these guiding principles in mind, we will now address the substance of appellants’ argument.

In considering appellants’ claim of entitlement to official immunity from this lawsuit, we begin by noting that our Supreme Court has held that “[t]he doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity.” The doctrine of qualified immunity derives from a 1991 amendment to the Georgia Constitution, which provides in relevant part:

Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.

In expounding upon this doctrine, we have held that “qualified immunity mandates that a public employee is not immune from suit when he performs ministerial acts negligently or performs ministerial or discretionary acts with malice or an intent to injure; rather, he or she is immune from suit only for the negligent performance of discretionary acts.” Importantly, our Supreme Court has similarly concluded that—consistent with the United States Supreme Court’s opinion in Mitchell v. Forsyth—qualified immunity “is an entitlement not to stand trial rather than a mere defense to liability,” and as such, a trial court “must consider as a threshold issue whether the officer is entitled to qualified immunity from personal liability in a lawsuit for damages.” Moreover, it is undisputed that the doctrines of sovereign immunity and official immunity are applicable to county-wide school districts and the employees of those districts.

Notwithstanding the foregoing law, the trial court entered a default judgment against appellants in their individual capacities, finding that they were not entitled to the “defense” of official immunity. In so holding, the trial court erred. As noted supra, official immunity is not a mere defense but rather an entitlement not to be sued that must be addressed as a threshold matter before a lawsuit may proceed. Indeed, the plain meaning of the 1991 amendment to the Georgia Constitution regarding official immunity clearly supports this conclusion by providing that

[e]xcept as provided in this subparagraph, officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions. The provisions of this subparagraph shall not be waived.

Furthermore, “merely naming a defendant individually in a complaint is not conclusive as to the capacity in which that defendant is sued.” Instead, “the reason for the lawsuit is the determinative factor as to a defendant’s capacity.” And while appellants were sued in both their official and individual capacities, it is undisputed that the Lewises’ wrongful-death suit arose from actions the appellants took in their official capacities as employees of the school. Thus, the trial court erred as a matter of law in finding that the entry of the default judgment barred the appellants from being able to assert that official immunity protected them from the Lewises’ wrongful-death action.

Accordingly, we reverse the trial court’s order denying appellants’ motion to set aside the default judgment and remand the case to the trial court for a threshold determination as to whether appellants’ acts or omissions that allegedly led to Richard Lewis’s death were ministerial or discretionary in nature. And while the Lewises argue on appeal that appellants’ acts were indeed ministerial, we are unwilling to entertain this argument, given the complete lack of any evidence in the record on that particular issue. Additionally, even if such evidence were contained in the appellate record, the trial court is the more proper forum for any initial review of this evidence and analysis regarding this issue.

2. Appellants also contend that the trial court erred in failing to set aside the default judgment based on the lack of personal jurisdiction. Specifically, appellants argue that there is no order appointing a permanent process server in this case, and therefore, the Lewises’ use of such a process server constituted a failure to perfect service. And because resolution of this enumeration of error in appellants’ favor would negate the need for this case to be remanded, we now address the issue and hold that the trial court did not err in finding that service upon appellants was perfected.

In considering appellants’ contention that the Lewises failed to perfect service, we begin by noting that the question of “[wjhether evidence is sufficient to overcome facts reflected in a return of service is a matter addressed to the discretion of the trial court.” Indeed, a return of service is prima facie evidence of personal service, and it may only be set aside when the defendant presents evidence that is “the strongest of which the nature of the case will admit.” Furthermore, factual disputes regarding service of process “are to be resolved by the trial court, and the court’s findings will be upheld if there is any evidence to support them.” Moreover, OCGA § 9-11-4 (c) provides that “[pjrocess shall be served by the sheriff of the county where the action is brought or where the defendant is found, or by his deputy, or by the marshal or sheriff of the court, or by his deputy, or by any citizen of the United States specially appointed by the court for that purpose.”

And while it is undisputed that appellants were served with the summons and complaint in this matter, they nevertheless argue that service of process was deficient because the process server used by the Lewises had not been properly appointed by the Superior Court of Hancock County. Additionally, appellants argue that service was deficient because the process server filed sheriffs entries of service with the trial court instead of separate affidavits. In response, the Lewises assert that a 2003 court order appointing the process server in question as a permanent process server for the Superior Courts of the Ocmulgee Judicial Circuit—which includes Hancock County— authorized that process server to serve the complaint in this action. We agree.

Given the 2003 court order appointing the permanent process server, the entry of service, and the fact that appellants do not dispute that they were actually served with the complaint, we find that there was some evidence to support the trial court’s ruling that the process server was authorized to serve appellants with the complaint in this action. Moreover, whether the permanent process server was authorized to file the sheriffs entries of service rather than his own affidavits as proof of service bears no weight in determining whether proper service was in fact made. As this Court has previously held,

[wjhere there has been valid service and no return, the deficiency may be supplied before taking further steps in the cause. If there has been service and a voidable or defective return, it may be amended even after judgment, so as to save that which has been done under service valid in fact but incompletely reported to the court. For in its last analysis it is the fact of the service, rather than the proof thereon by the return, which is of vital importance. This comports with the well settled rule that the critical question is the fact of service and not the nature of the return. Thus, the actual facts control, and if jurisdiction was actually acquired over the persons of the defendants, that fact should govern. It is the fact of service which confers jurisdiction, and not the return, and the latter may be amended to speak the truth.

Accordingly, the trial court did not err in finding that service of process was perfected in this matter.

Decided March 23, 2011.

Brock, Clay, Calhoun & Rogers, Randall C. Farmer, for appellants.

Adams, Jordan & Treadwell, Donald J. Jordan, Caroline W. Herrington, for appellees.

3. In light of our holdings in Divisions 1 and 2, we need not address at this time appellants’ remaining enumerations of error.

Judgment reversed and case remanded.

Barnes, E J., and Blackwell, J., concur.

        Jacques v. Murray, 290 Ga. App. 334, 335 (1) (659 SE2d 643) (2008) (citation and punctuation omitted).

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

        Cameron v. Lang, 274 Ga. 122, 123 (1) (549 SE2d 341) (2001); see also Gilbert v.

        Richardson, 264 Ga. 744, 750 (4) (452 SE2d 476) (1994) (“(o)fficial or qualified immunity offers limited protection from suit to governmental officers and employees.” (citation omitted)).

       Ga. Const. Art. I, Sec. II, Par. IX (d).

        Russell v. Barrett, 296 Ga. App. 114, 117 (1) (673 SE2d 623) (2009); see also Gilbert, 264 Ga. at 752 (6) (452 SE2d 476) (1994) (noting that “[t]he doctrine of official immunity, developed primarily in Georgia through case law, provides that while a public officer or employee may be personally liable for his negligent ministerial acts, he may not he held liable for his discretionary acts unless such acts are wilful, wanton, or outside the scope of his authority”).

       472 U. S. 511, 526 (105 SC 2806, 86 LE2d 411) (1985).

         Cameron, 274 Ga. at 124 (1) (punctuation omitted).

        Russell, 296 Ga. App. at 116 (1) (citation and punctuation omitted); see also Cameron, 274 Ga. at 124 (1) (holding that a court should resolve the issue of a government employee’s qualified immunity as early as possible in legal proceedings).

        See Teston v. Collins, 217 Ga. App. 829, 830-31 (1)-(3) (459 SE2d 452) (1995) (holding that sovereign immunity extended to school-district defendant and official immunity extended to employees); Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 294 (454 SE2d 149) (1995) (same).

        Cameron, 274 Ga. at 124 (1); Russell, 296 Ga. App. at 116 (1).

       Ga. Const. Art. I, Sec. II, Par. IX (d) (emphasis supplied).

        Teston, 217 Ga. App. at 831 (3).

        Id.

        See, e.g., Cooper v. Paulding County School Dist., 265 Ga. App. 844, 845 (595 SE2d 671) (2004) (holding that school principal, who was sued in his individual capacity, was entitled to official immunity); Hemak v. Houston County School Dist., 220 Ga. App. Í10, 112-13 (469 SE2d 679) (1996) (same); Teston, 217 Ga. App. at 831 (3) (holding that school employees, who were sued in their individual capacities, were entitled to official immunity in lawsuit arising out of classroom incident).

        Cf. Bd. of Regents &c. v. Frost, 233 Ga. App. 692, 695 (505 SE2d 236) (1998) (holding that because defendant had immunity, trial court lacked subject matter jurisdiction and was without authority to enter default judgment against defendant); see also Fink v. Dodd, 286 Ga. App. 363, 365 (1) (649 SE2d 359) (2007) (holding that a default does not preclude a defendant from showing that under the facts as deemed admitted, no claim existed which would allow the plaintiff to recover).

        Bohorquez v. Strother, 287 Ga. App. 98, 99 (650 SE2d 765) (2007) (citation and punctuation omitted).

        See, e.g., Baughan v. Alaoui, 240 Ga. App. 661, 663 (1) (524 SE2d 536) (1999).

        Bohorquez, 287 Ga. App. at 99 (citation and punctuation omitted).

        Patel v. Sanders, 277 Ga. App. 152, 153 (1) (626 SE2d 145) (2006).

        Capra v. Rogers, 200 Ga. App. 131, 133 (1) (407 SE2d 101) (1991) (punctuation omitted).

        See OCGA § 9-11-4 (h) (2) (proof of service by a person other than a sheriff, marshal, or deputy shall be by such person’s affidavit).

       OCGA § 15-6-1 (28) provides that the “Ocmulgee Judicial Circuit! is] composed of the Counties of Baldwin, Greene, Jasper, Jones, Morgan, Putnam, Wilkinson, and Hancock.”

        See, e.g., Jacobson v. Garland, 227 Ga. App. 81, 83-84 (1) (487 SE2d 640) (1997) (holding that affidavit of permanent process server, which detailed attempt to serve defendant’s wife, constituted evidence to support plaintiffs claim that service was sufficient).

        Newsome v. Johnson, 305 Ga. App. 579, 583-84 (1) (699 SE2d 874) (2010) (punctuation omitted).