text:
    A12A1577.
    THOMAS v. THE STATE.
    (732 SE2d 559)
   Phipps, Presiding Judge.

A jury found Sara Thomas and her daughter guilty of three counts of theft by shoplifting and Thomas, alone, guilty of giving a false name to a police officer. Thomas appeals her convictions, contending that the trial court erred in admitting at trial her custodial statement. For the following reasons, we affirm.

Thomas contends that her custodial statement was not voluntarily made and that she was induced to make it because she feared that she and her daughter would be taken to jail and her grandchildren would be taken into the custody of the Georgia Department of Human Resources Division of Family and Children Services (DFCS). She argues that the “coercive environment” at the scene of the incident which led to the suppression of her daughter’s written statement should also have led to the suppression of her custodial statement.

At the Jackson-Denno hearing, the arresting officer testified that on July 21, 2005, he responded to a call about a theft at a shopping mall. When he arrived at the mall, the complainant (apparently a store merchant) pointed out the suspects to the officer. The officer approached Thomas and her daughter as they exited a store.

The officer explained to Thomas and her daughter that the police had been called because of a shoplifting report. The women denied that they had shoplifted. The officer asked them for identification. The daughter produced a Georgia identification card. Thomas stated that she did not have identification, but she gave the officer a name and date of birth. The officer transmitted that identification information to “dispatch and they ran it through GCIC.” After the officer received a response from dispatch, he determined that Thomas had given him a false name, arrested her for that crime, and placed her in the back seat of his patrol vehicle. He testified that at this point, he had not decided whether to charge Thomas or her daughter with shoplifting.

The officer turned his attention back to the daughter, who was accompanied by minor children. He approached her vehicle, which was parked 15 yards away from his patrol car. He testified that as the daughter opened the door to put the children inside, he saw in plain view in the console area “a whole bunch of jewelry ... just laying out in the open.” Tags were on the jewelry, and the officer asked the daughter whether she had a receipt for them. The daughter stated that she had a receipt from a particular merchant, but produced none. The officer asked that jewelry store merchant about the daughter’s purchases that day, and the merchant stated that the daughter had paid for ear piercings for one of the children but had not purchased any jewelry.

The officer testified that he then walked to his patrol vehicle, told Thomas what the jewelry store merchant had said, and read Thomas the Miranda warnings. After he advised Thomas of her rights, he asked her whether she understood them, and Thomas replied that she did. He then asked Thomas whether she wanted to make a statement. Thomas told him that she had taken the items, that her daughter had a good job, and that she did not want her daughter to lose her job. The officer closed the back door of his patrol vehicle and re-approached Thomas’s daughter, who was standing outside her vehicle, with the children inside. He told the daughter that Thomas had stated that she was “going to take this, the shoplifting charge.” According to the officer, the daughter, who was not then in custody or under arrest, replied that Thomas “didn’t do it all,” and began naming stores from which she had shoplifted. The daughter then executed a written statement of confession, listing several stores from which she had stolen clothes and other items.

Thomas’s daughter testified that she wrote the statement under the following circumstances. Thomas was in the patrol vehicle yelling, trying to talk to her. A police officer was hitting the vehicle and telling Thomas to “shut up” and that “somebody’s going to admit to taking these clothes.” The daughter stated that she was frustrated and crying, and the children were crying. The daughter testified that the arresting officer started “threatening me that he would call DFCS if I didn’t write a statement and own up to the clothes.” She testified that the officer told her what to write.

Thomas called one witness to testify, a person with whom her daughter had gone to school. The witness testified that she never saw Thomas on the scene. She testified that she heard kids crying and screaming and heard one child say, “I don’t want my mommy to go to jail.” The witness testified that when Thomas’s daughter asked a police officer whether she could call someone to come pick up the children, the officer told her, “[N]o, not until you write this.” The witness testified that the officer just kept telling Thomas’s daughter to “write” or he would call DFCS to pick up the children.

The officer testified that he did not threaten Thomas’s daughter to write the statement, he did not promise her that she would not be charged if she wrote the statement, and he did not offer her any hope of benefit to write the statement.

Thomas did not testify. At the end of the hearing, the trial court ruled: “All right. I’m going to find in the case and totality of the circumstances that the false name statement of Ms. Sara Thomas and the Mirandized statement come in. As to [Thomas’s daughter], we find that the — that the oral statement comes in, but the written statement is out.”

A custodial statement is admissible only if it was made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury. To determine whether the state has proven that a confession was made voluntarily, the trial court must consider the totality of the circumstances. The trial court sits as the factfinder in a Jackson-Denno hearing, and its resolution of factual issues will be upheld by the appellate court unless it is clearly erroneous.

“The ‘remotest fear of injury’ that renders an incriminating statement involuntary and inadmissible under OCGA § 24-3-50 is ‘physical or mental torture’ or coercion by threats. This determination must be based on the totality of the circumstances.”

If there is a conflict as to whether or not a statement, admission, or confession was made freely and voluntarily, that question then becomes one of fact for determination by the jury, provided a prima facie showing is made by the state that such statement was made freely and voluntarily and without hope of benefit or fear of injury.

“On appeal, we accept the trial court’s findings on disputed facts and credibility of witnesses unless clearly erroneous, but independently apply the legal principles to the facts.”

A review of the transcript of the Jackson-Denno hearing shows that Thomas presented no evidence which would authorize a finding that her custodial statement was inadmissible for the reasons she contends. Thomas argues that her custodial statement was not voluntarily made and that she was induced to make it by fear of being taken to jail. But the evidence showed that when Thomas made the statement at issue she was in police custody and had been arrested for giving the police officer a false name. Thus, contrary to her assertions, any fear of being taken to jail could not have induced her custodial statement. Moreover,

[wjhether or not [Thomas] had been formally charged with the crime[s] for which [s]he was tried at the time [her statement was] taken would not affect [its] admissibility or voluntary character, but was simply a circumstance to be taken into consideration by the jury in weighing such statements

Concerning Thomas’s argument that her custodial statement was not voluntarily made and that she was induced to make it by fear of her daughter being taken to jail and her grandchildren being removed from the scene by DFCS agents, Thomas was confined in a police vehicle 15 yards away when the arresting officer later allegedly made threatening statements to her daughter, not to Thomas. And in any event, there was no evidence that Thomas heard any officer state that he was considering taking her daughter to jail or that he would have representatives from DFCS pick up the grandchildren if the daughter did not issue a written statement of confession.

Notably, Thomas does not argue that the officer coerced her daughter into making her oral statement, which the daughter had given before the written statement and which the trial court did not suppress. The evidence showed that by the time of the “coercive environment” of which Thomas complains she had already made her statement. There was no evidence that Thomas’s custodial statement was induced by fear that her daughter would be arrested or that her grandchildren would be placed in the custody of DFCS. The trial court was authorized to find that Thomas freely and voluntarily gave a statement after she knowingly waived her Miranda rights.

Decided September 28, 2012.

J. Scott Key, for appellant.

Tommy K. Floyd, District Attorney, David E. Slemons, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

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

        Presley v. State, 251 Ga. App. 823, 824 (1) (555 SE2d 156) (2001) (citations and punctuation omitted); see OCGA § 24-3-50.

        State v. Lynch, 286 Ga. 98, 100 (1) (686 SE2d 244) (2009) (citations and punctuation omitted).

        Newton v. State, 132 Ga. App. 873 (2) (209 SE2d 690) (1974) (citation omitted).

        Carter v. State, 289 Ga. 51, 54 (5) (709 SE2d 223) (2011) (citation omitted).

       See Mungin v. State, 183 Ga. App. 290, 291 (1) (358 SE2d 673) (1987) (“fear of injury” contemplated by OCGA § 24-3-50 must be induced by another, not self).

       Id. (citations omitted).

        Hester v. State, 287 Ga. App. 434, 437 (2) (651 SE2d 538) (2007) (trial court authorized to find that defendant freely and voluntarily gave statement after having knowingly waived Miranda rights, where no evidence of alleged threats to defendant was offered at JacksonDenno hearing).

       See Mungin, supra.

       See generally Hester, supra; cf. Johnson v. State, 277 Ga. App. 41, 43-44 (2) (625 SE2d 411) (2005) (trial court’s denial of defendant’s motion to suppress his custodial statements affirmed where defendant’s testimony at Jackson-Denno hearing that he had confessed because the police threatened to arrest his wife and to have DFCS take his daughter was contradicted by two police detectives who testified that defendant was informed of his Miranda rights and waived them).

       See OCGA § 24-3-50; Hester, supra; Johnson, supra; Presley, supra; Anderson v. State, 224 Ga. App. 608, 610 (1) (481 SE2d 595) (1997) (statement voluntary despite officer’s statement to defendant that he was considering charging defendant’s girlfriend as an accessory to the crime); Lovell v. State, 179 Ga. App. 98, 98-99 (1) (345 SE2d 645) (1986).


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A12A1014.
    CARR et al. v. FEDEX GROUND PACKAGE SYSTEM, INC.
    (733 SE2d 1)
   McFadden, Judge.

This is an action for personal injuries, which Lester Carr sustained while working at a FedEx facility. His wife, Charlene Carr — individually and as his guardian and the conservator over his person and property — appeals from the grant of summary judgment to FedEx Ground Package System, Inc. (“FedEx”). FedEx contends that the action is barred by the exclusive remedy provision of the Workers’ Compensation Act. Because, under the terms of the Act, FedEx was Lester Carr’s statutory employer at the time of the injury, we agree.

Charlene Carr argues in the alternative that we should remand for additional discovery. But as her request was not presented in the first instance to the trial court, it presents nothing for us to review. We therefore affirm.

1. Facts and proceedings below.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. On appeal, we review a trial court’s grant of summary judgment de novo, construing the evidence and all inferences drawn from it in a light favorable to the nonmovant.

(Citations and punctuation omitted.) Stolte v. Hammack, 311 Ga. App. 710 (716 SE2d 796) (2011).

So viewed, the evidence shows that on July 2, 2007, Lester Carr was seriously injured in a fight with a FedEx employee at a FedEx facility. At the time, Lester Carr was at the facility pursuant to his work as a truck driver for J. Wigg Trucking, Inc., a sole proprietorship owned by Jethro Wiggins (‘Wiggins”) that had a contract to provide trucking services to FedEx.

In a separate proceeding, Charlene Carr obtained workers’ compensation benefits on Lester Carr’s behalf from Wiggins. Charlene Carr then filed the instant personal injury action against FedEx, alleging negligent hiring, supervision and retention, as well as failure to maintain safe premises. The trial court granted summary judgment to FedEx on the ground that FedEx was a statutory employer immune from liability under the exclusive remedy provision of the Workers’ Compensation Act, OCGA § 34-9-11.

2. Exclusive remedy and statutory employer provisions of the Workers’ Compensation Act.

The exclusive remedy provision of the Workers’ Compensation Act is as follows.

The rights and remedies granted to an employee by [the Act] shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tortfeasor, [with certain exceptions]. . . .

OCGA § 34-9-11 (a). “Therefore, where the Act applies, it provides the employee’s exclusive remedy against his employer and precludes recovery on a tort claim by an injured employee against his employer.” (Citations and punctuation omitted.) Teasley v. Freeman, 305 Ga. App. 1, 2 (1) (699 SE2d 39) (2010). See also Ga. Dept. of Human Resources v. Joseph Campbell Co., 261 Ga. 822, 822-823 (1) (411 SE2d 871) (1992).

The statutory employer provision of the Act, OCGA § 34-9-8, makes principal or intermediate contractors secondarily liable for workers’ compensation benefits for injured employees of a subcontractor. Warden v. Hoar Constr. Co., 269 Ga. 715, 715-716 (1) (507 SE2d 428) (1998); Yoho v. Ringier of America, 263 Ga. 338, 341 (434 SE2d 57) (1993); Patterson v. Bristol Timber Co., 286 Ga. App. 423, 430 (3) (649 SE2d 795) (2007). Thus, the statutory employer doctrine permits liability for workers’ compensation benefits to attach vicariously against someone other than an injured employee’s employer. In return, the vicariously liable party is immune from tort liability for the injury suffered [pursuant to OCGA § 34-9-11]. By this section the legislature intended to protect persons working for subcontractors who are financially irresponsible or who are otherwise exempt from the provisions of the Workers’ Compensation Act.

(Citations omitted.) Manning v. Ga. Power Co., 252 Ga. 404, 405 (314 SE2d 432) (1984).

Immunity from tort actions under the exclusive remedy provision is a correlative benefit of the statutory employer’s liability to pay workers’ compensation benefits. See Carver v. Jasper Constr. Co., 183 Ga. App. 485 (1) (359 SE2d 183) (1987). It extends to statutory employers even if the workers’ compensation benefits actually were paid by another party, such as the subcontractor. See Wright Assocs. v. Rieder, 247 Ga. 496, 499-500 (1) (277 SE2d 41) (1981); Patterson, 286 Ga. App. at 430; Redd v. Stanfield, 217 Ga. App. 573, 574 (2) (458 SE2d 394) (1995). “It is a statutory employer’s potential liability for workers’ compensation benefits rather than actual liability that triggers the tort immunity.” (Emphasis in original.) Maguire v. Dominion Dev. Corp., 241 Ga. App. 715, 717 (527 SE2d 575) (1999).

3. FedEx’s status as a statutory employer.

Charlene Carr argues that FedEx was not Lester Carr’s statutory employer — and therefore not entitled to tort immunity under the exclusive remedy provision —• for two reasons: the language of FedEx’s contract with Wiggins precludes it from being a statutory employer and FedEx is not a “contractor” under OCGA § 34-9-8. We find no merit in either argument.

(a) The contract language does not preclude FedEx from being a statutory employer. Charlene Carr argues that FedEx was not Lester Carr’s statutory employer because the language in FedEx’s contract with Wiggins shielded it from any workers’ compensation liability. She points to a term stating that Wiggins “will provide these [identified] services strictly as an independent contractor, and not as an employee of FedEx Ground for any purpose” (Emphasis supplied.) And she asserts that a term requiring Wiggins to obtain and keep in force workers’ compensation benefits, and to provide FedEx with proof of insurance coverage, insulated FedEx from any potential workers’ compensation liability.

But, “[n]o contract or agreement, written, oral, or implied, nor any rule, regulation, or other device shall in any manner operate to relieve any employer in whole or in part from any obligation created by this chapter except as otherwise expressly provided in this chapter.” OCGA § 34-9-10. FedEx could not have contracted to relieve itself from any obligation created by the Act. See Tillman v. Moody, 181 Ga. 530, 532 (182 SE 906) (1935) (interpreting substantively identical predecessor Code provision).

Nevertheless, Charlene Carr contends that our opinion in Gramling v. Sunshine Biscuits, 162 Ga. App. 863 (292 SE2d 539) (1982), requires us to interpret the contract to relieve FedEx of its workers’ compensation obligations to Wiggins’s employees. We disagree. In Gramling, we held that a shipper was not the statutory employer of a truck driver employed by a third party to deliver the shipper’s goods to a customer. Id. at 864. We did interpret a provision of a contract between the shipper and the third party “as a disclaimer on the part of the shipper of any responsibility for workers’ compensation payments to [the third party’s] employees,” but we held that the contract language was “not necessarily controlling of the issue” of the shipper’s status as statutory employer. Id. Rather, the shipper in Gram-ling was not liable for workers’ compensation benefits (and thus not entitled to exclusive remedy protections as a statutory employer) because the driver’s injury did not occur on the shipper’s premises. Id. This dispositive fact distinguishes Gramling from cases, such as the instant case, in which the injury occurred on the alleged statutory employer’s work site. See Patterson, 286 Ga. App. at 430 (3).

Nor do we read the contract as an attempt by FedEx to relieve itself of its obligations under the Act. FedEx’s contract with Wiggins merely undertook to establish that Wiggins was an independent contractor rather than an employee of FedEx. The term at issue did not affect whether Wiggins’s employee, Lester Carr, was a statutory employee of FedEx. See Wright Assocs., 247 Ga. at 498 (1) (a principal contractor is the statutory employer of the employee of a subcontractor who is an independent contractor). Cf. Dennis Perry Homes v. Companion Property &c. Ins. Co., 311 Ga. App. 706, 708 (1) (716 SE2d 798) (2011) (“the law does not permit the employer, simply by designating certain of his employees independent contractors, to by-pass the workers’] compensation law, and this is true, although the employer may bona fide believe that the end referred to may be accomplished in the manner mentioned”) (citation and punctuation omitted).

Our Supreme Court has rejected the argument, which Charlene Carr ascribes to FedEx, that a contract term whereby a principal requires a subcontractor to carry workers’ compensation insurance insulates that principal from potential liability and precludes it from being a statutory employer.

The purpose of [OCGA § 34-9-8] is to ensure that employees in construction and other industries are covered by workers’ compensation. In order to do so, it places an increased burden, in the form of potential liability for workers’ compensation benefits, on the statutory employer. This encourages the statutory employer to require subcontractors to carry workers’ compensation insurance. The fact that the statutory employer reacts to the statute in the manner intended by the legislature should not result in a penalty on the statutory employer [in the form of potential tort liability]. . . . The quid pro quo for the statutory employer’s potential liability is immunity from tort liability.

Wright Assocs., 247 Ga. at 499-500 (1). See also Warden, 269 Ga. at 716 (1) (to deprive principal contractor of tort immunity because principal contractor required subcontractor to carry workers’ compensation insurance “would undercut the purpose of [OCGA] § 34-9-8 to ensure that employees are covered by workers’ compensation”).

(b) FedEx is a “contractor. ” Charlene Carr argues that FedEx is not liable for workers’ compensation as a statutory employer because it is not a “contractor” subject to workers’ compensation liability under OCGA § 34-9-8. She asserts that, unlike “general contractors in traditional construction cases,” FedEx had “no contract with another to provide a good or service.” We disagree.

OCGA § 34-9-8 (a) provides that “[a] principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.” OCGA § 34-9-8 (a) applies only where the principal has contracted to perform certain work for another and has subcontracted some or all of that work. See Yoho, 263 Ga. at 339; Ramcke v. Ga. Power Co., 306 Ga. App. 736, 737-738 (1) (703 SE2d 13) (2010). “[T]he statute embraces all who are in the venture with the hope of making a profit out of the doing of the work as distinguished from one out of the use or disposition of the completed project.” (Citations and punctuation omitted; emphasis in original.) Yoho, 263 Ga. at 342.

Our opinion in Patterson, 286 Ga. App. 423, illustrates this distinction. In Patterson, a timber company entered into a contract to supply wood chips to a customer and subcontracted with a trucking company to load and transport the wood chips to the customer. A truck driver employed by the trucking company was injured while loading wood chips at the timber company’s premises. The timber company argued that it was immune from the truck driver’s personal injury suit on the ground that it was the driver’s statutory employer. We agreed and affirmed a grant of summary judgment to the timber company, holding that the truck driver was injured while in the course of his work on the timber company’s premises in the performance of the timber company’s contract with its customer, which included the delivery of the wood chips. Id. at 430 (3). By working toward the performance of the timber company’s contract with its customer, the trucking company with which the injured driver was employed was “more than merely a carrier who delivered something for a shipper.” (Citation omitted.) Id. We contrasted this scenario with that in Gramling, 162 Ga. App. at 864, which involved a truck driver working for a trucking company that merely carried goods shipped by a manufacturer to its customers. See Patterson, 286 Ga. App. at 430. We further contrasted Gramling because the truck driver in that case was not injured on the shipper’s premises. Id.

FedEx argues, and we agree, that the work performed by Wiggins — package delivery — was done in performance of contracts FedEx had with others (FedEx’s customers), and thereby was analogous to the trucking company’s work in Patterson. The record does not support Charlene Carr’s contention that FedEx had no contracts with others to provide a service. Instead, it shows that FedEx agreed to provide delivery services to its customers through bills of lading containing the terms and conditions of carriage. See generally McElveen v. Southern R. Co., 109 Ga. 249, 254 (34 SE 281) (1899) (a bill of lading is a contract for carriage). Because FedEx had a contractual obligation of performance to its customers, it was a “contractor.” See Yoho, 263 Ga. at 341-342 (“[ojrdinarily, in common usage, a ‘contractor’ is one who undertakes to perform work for another”) (citations and emphasis omitted). And it is clear that Wiggins, in its contract with FedEx, had agreed to perform on FedEx’s behalf at least a portion of the work required for FedEx to fulfill its contractual delivery obligations to its customers •— the work of actually delivering the customers’ packages. Like the injured driver in Patterson, “[Lester Carr] was injured on [FedEx’s] premises in the course of his work for [Wiggins] in performance of [FedEx’s] contract[s]. These facts fall squarely within the language of OCGA § 34-9-8 (a)[.]” Patterson, 286 Ga. App. at 430.

Although, as Charlene Carr correctly notes, FedEx in this case did not have a pre-existing general contract with its customers that established its delivery obligations to them, we do not find that this distinction freed FedEx from the obligations of a statutory employer to its subcontractors’ employees set forth in the Act. The terms of FedEx’s contract with Wiggins show that the parties entered into that contract in anticipation that FedEx subsequently would assume delivery obligations in contracts with customers and that Wiggins’s drivers would assist in fulfilling those delivery obligations. We have not found any Georgia cases directly speaking to whether the putative statutory employer must have a pre-existing general contract with another for OCGA § 34-9-8 to apply. In Hall v. 84 Lumber Co., 2011 U. S. Dist. LEXIS 22857 (S.D. Ga. 2011), however, the Southern District of Georgia construed Georgia law to hold that a company was a statutory employer where the company had an existing contract with a subcontractor to provide drivers to assist the company in fulfilling subsequently-arising contracts between the company and its customers.

Regardless of the timing, FedEx entered into its contract with Wiggins in specific furtherance of the contract obligations it anticipated owing to its customers, and Wiggins assumed responsibilities to FedEx specifically tied to those anticipated obligations. Simply put, had FedEx not subsequently entered into agreements to deliver packages for customers, Wiggins would have had no work to perform under its contract with FedEx. To deny Wiggins’s employees the benefits of OCGA § 34-9-8 (the potential workers’ compensation liability of FedEx) simply because Wiggins contracted to help FedEx provide delivery services to its customers before FedEx contracted with customers to provide the services would give a driver directly hired by FedEx greater workers’ compensation protection than a driver hired by a subcontractor to perform exactly the same work for FedEx. Such an outcome is neither required by the language of OCGA § 34-9-8 nor consistent with the legislative goals of the Workers’ Compensation Act.

4. Compensability of Lester Carr’s injuries.

Charlene Carr contends that genuine issues of material fact exist as to whether Lester Carr’s injuries were compensable under workers’ compensation as arising out of and in the course of his employment. See Wade v. Ga. Diversified Indus., 240 Ga. App. 225, 226-228 (2) (522 SE2d 746) (1999) (conflicting evidence regarding whether plaintiff was injured in scope of employment can preclude employer from obtaining summary judgment under workers’ compensation exclusive remedy provision). But it is undisputed that Lester Carr obtained workers’ compensation for those injuries under a settlement with his immediate employer, Wiggins. Because Lester Carr settled his workers’ compensation claim, his representative Charlene Carr cannot avoid summary judgment by arguing that a genuine issue of material fact exists regarding the compensability of his injuries. See Smith v. Ellis, 291 Ga. 566 (2) (731 SE2d 731) (2012).

Decided October 2, 2012.

Slappey & Sadd, James N. Sadd, for appellant.

Dennis, Corry, Porter & Smith, Grant B. Smith, John D. Dixon, for appellee.

5. Charlene Carr’s request for remand.

Charlene Carr argues that “[i]f the Court is disinclined to reverse the trial court’s grant of summary judgment, the case should be remanded for further discovery regarding FedEx’s claim to be a general contractor.” A respondent to a summary judgment motion who contends that the motion is premature should invoke OCGA § 9-11-56 (f), which authorizes a court to order a continuance for further discovery in connection with summary judgment proceedings, “[sjhould it appear from the affidavits of a party opposing the [summary judgment] motion that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition.” The record does not demonstrate that Charlene Carr sought such relief from the trial court. Consequently, this argument does not enumerate any error of the trial court and presents nothing for us to review. See Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999) (this is a court for the correction of errors made by the trial court).

Judgment affirmed. Barnes,

P. J., and Adams, J., concur.


author: Boggs, Judge.

text:
    A12A1295.
    THOMAS v. McMILLAN.
    (732 SE2d 803)
   Boggs, Judge.

In this premises liability case arising out of a deck collapse, Theodore Thomas appeals from the trial court’s grant of summary judgment to Thomas McMillan, the homeowner. Thomas contends that genuine issues of fact exist as to whether McMillan had superior knowledge of defects in the deck. We disagree and therefore affirm.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from the grant or denial of summary judgment, we apply a de novo standard of review and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Hood v. Todd, 287 Ga. 164, 165 (695 SE2d 31) (2010).

So viewed, the record shows that at the time of the deck collapse on November 18, 2007, Thomas was checking McMillan’s home “inside and outside” while McMillan was out of town. While Thomas was standing on the deck, he heard a crack, the deck dropped halfway to the ground and paused, before falling completely to the ground. Thomas was “not sure” from which direction the cracking sound originated, and he did not look at the deck after it fell to determine how or why the deck fell. At no time before the deck collapse did Thomas notice anything about the deck that caused him concern. A couple of days after the accident, McMillan told Thomas he did not understand why it fell, noting that he would sleep on the deck two or three times a week. Thomas testified that he had no reason to believe that McMillan knew anything was wrong with the deck.

Before purchasing the new home, McMillan reviewed a home inspection report prepared on his behalf dated June 2, 2007. One section of the report was labeled “Deck/Porch,” and the inspector indicated that the “overall condition” of the deck was “Adequate,” as opposed to “Fair,” “Poor,” “Substandard Installation, Workmanship,” or “Hazardous Condition.” Additionally, the inspector left blank two boxes at the top of the page labeled “Structural Evaluation and Repairs Recommended” and “Updating and/or Replacing Recommended.” In a subsection titled “Ledger” of the “Deck/Porch” section of the report, the inspector noted that bolting and flashing were not visible and were recommended. Under the “observation” subsection of “Ledger,” the inspector did not circle any of the following options “Visible Rot/Susceptible Water Infiltration/Siding Damaged/Not Properly Secured/Improperly Secured to Cantilevered Joist.” In the “Additional Comments” section at the end of the “Deck” section of the report, the inspector handwrote: “Flashing & bolting recommended at ledger.”

Before Thomas’ injury, McMillan provided a copy of the inspection report to Shepherd and Young Construction, LLC, the entity from which McMillan purchased the new home. The home was built by another entity, PZDM, and the plans for the home did not include a deck. William Shepherd, a principal of Shepherd and Young Construction, testified that he hired a framer, James Hall, to add a deck to the home to help it sell based upon the recommendation of a realtor. The handwritten punch list at the end of McMillan’s inspection report that was provided to Shepherd and Young did not include any mention of bolting of the ledger for the deck. With regard to the deck, it included only “[rjeplace damaged picket at left side wood railing of rear deck #24 from entry door” and “[p]roperly attach wood railing at bottom section of rear wood deck to wood post.”

Shepherd admitted in his deposition that he had no training in the construction business and that he had no knowledge of building codes applicable to decks. According to Shepherd, the framer who had constructed the deck looked at it after the collapse and “didn’t say a whole lot” other than “something to the effect that some of it wasn’t done the way he intended ... he talked about the post, some cement being in the post on the ground level... he said the part where it was attached to the house was done right.” When asked whether he knew why the deck collapsed, Shepherd testified, “Not really. Just something was wrong.” When asked whether he believed the deck was properly attached to the house, Shepherd replied, “Let’s see, it was up there — no. ‘Cause three months it fell. I’ll say, you asked me was it attached right, I’m not sure about which part had to do with the falling, you know, what I mean. You said attached to the house, it could have been ground level. . . .” Finally, Shepherd testified that McMillan told him after the accident that he “knew something wasn’t right about the deck.”

Thomas subsequently filed a complaint against McMillan, Shepherd andYoung Construction, LLC, andHallforhis injuries. McMillan moved for summary judgment in his favor, which the trial court granted based upon its conclusion that Thomas failed to show “McMillan’s superior knowledge of a defect causing the harm to [Thomas].” The evidence before the trial court includes only written discovery responses and the depositions of Shepherd, Dan Young (the other principal of Shepherd and Young, who provided no additional information about the deck), and Thomas. It does not include any depositions or affidavits from McMillan, Hall (the framer who constructed the deck), the inspector who prepared the inspection report for McMillan, or an expert.

On appeal, Thomas contends that the inspection report, Shepherd’s testimony about the cause of the collapse, and McMillan’s admission that he “knew something wasn’t right about the deck” create genuine issues of fact with regard to McMillan’s superior knowledge of the defect. We disagree.

In premises liability cases, “to survive a motion for summary judgment, a plaintiff must come forward with evidence that, viewed in the most favorable light, would enable a rational trier of fact to find that the defendant had actual or constructive knowledge of the hazard.” (Citations and punctuation omitted.) Landings Assn. v. Williams, 291 Ga. 397, 398 (728 SE2d 577) (2012). Additionally,

Decided October 2, 2012.

Rumsey & Ramsey, Austin L. Ramsey III, Ronald L. Cundy, for appellant.

Charles Beans, for appellee.

[t]he true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.

(Citations and punctuation omitted.) Id. at 399.

In this case, Thomas cannotmeethis burden of proving McMillan’s actual or constructive knowledge of the defect that caused Thomas’ injury. See Silman v. Assoc. Bellmeade, 294 Ga. App. 764, 766 (2) (669 SE2d 663) (2008); Wingo v. Harrison, 268 Ga. App. 156,160 (601 SE2d 507) (2004). First, the record before us does not adequately establish that the deck in fact had inadequate bolting or flashing that could have caused the deck to collapse. Second, the inspection report did not provide McMillan with actual or constructive notice of a dangerous defect in the deck. The inspector listed the deck’s overall condition as adequate, failed to mark two boxes recommending “structural evaluation and repairs” or “updating and/or replacing,” and the inspector did not circle listed options of “not properly secured” or “improperly secured to cantilevered joist.” The section regarding the ledger merely noted that bolting and flashing were not visible and were recommended. And while the comments section in the deck portion of the report recommended bolting and flashing at the ledger, the report did not explain that their absence would pose a safety hazard. Finally, McMillan’s alleged admission that he “knew something wasn’t right about the deck” is too general to establish that McMillan had superior knowledge of the unspecified defect in the deck that caused Thomas’ injury. See Dunaway v. Kaylor, 127 Ga. App. 586, 587 (194 SE2d 264) (1972) (father’s admission that he knew he was going to have problems with his son no basis for inference of previous knowledge of violent propensities; any such inference “pure speculation and conjecture”). The trial court therefore did not err by granting summary judgment to McMillan.

Judgment affirmed.

Doyle, P. J., and Andrews, J., concur.

       Shepherd had previously used Hall to build a free-standing garage at his personal home.


text:
    A12A1344.
    THE STATE v. CRAPP.
    (732 SE2d 806)
   McFadden, Judge.

A jury convicted Frederick Crapp of the armed robbery and kidnapping of Tyhesha Strawder, and entering her automobile with the intent to commit kidnapping. The trial court granted Crapp’s motion for new trial, finding that Crapp had been denied the effective assistance of counsel because defense counsel did not corroborate Crapp’s defense with evidence that he possessed. The state appeals, arguing that Crapp did receive the effective assistance of counsel. The trial court did not err in concluding that counsel’s performance was deficient and likely affected the outcome of the trial. We therefore affirm.

1. Requirement of an enumeration of error.

As a threshold matter we must address Crapp’s argument that the state “has provided this Court with no enumeration of error upon which it may reverse the Superior Court’s order.” Crapp correctly notes that there is no section of the Brief of Appellant entitled “Enumeration of Error.”

In order for a Georgia appellate court to review a trial court ruling for legal error,

a party must set forth in the enumeration of errors the allegedly erroneous ruling. The appellate court is precluded from reviewing the propriety of a lower court’s ruling if the ruling is not contained in the enumeration of errors. Lee v. State, 265 Ga. 112[, 116 (7)] (454 SE2d 761) (1995); Irvin v. Askew, 241 Ga. 565[, 566 (2)] (246 SE2d 682) (1978).

(Punctuation omitted.) Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999).

The Brief of Appellant does contain a section entitled “Question Presented.” The body of that section provides, “Was Appellee denied his right to effective assistance of counsel?”

Strictly speaking, that is not an enumeration of error. “An error of law has as its basis a specific ruling made by the trial court. In order for a Georgia appellate court to review a trial court ruling for legal error, a party must set forth in the enumeration of errors the allegedly erroneous ruling.” (Citation omitted.) Felix, supra, 271 Ga. at 539. The state’s “Question Presented” does not identify an allegedly erroneous ruling; it identifies an underlying legal issue. Cf. Fed. R. App. Proc. 28 (a) (5) (requiring that an appellant’s brief contain “a statement of the issues presented for review”).

But as to the sufficiency of enumerations of error, our Supreme Court has reminded us,

[t]he General Assembly has made it clear that all points raised in an appeal are to be considered by the appellate court. In addition to the statutory mandate that the [Appellate Practice Act] be “liberally construed so as to bring about a decision on the merits of every case appealed and to avoid . . . refusal to consider any points raised therein” (OCGA § 5-6-30), the legislature, in enacting OCGA § 5-6-48 (f), has imposed on the appellate courts a statutory duty to discern what errors an appellant is attempting to articulate. “[If] the enumeration of errors fails to enumerate clearly the errors sought to be reviewed[,]” the appellate court is nonetheless required to consider the appeal “where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, ... what errors are sought to be asserted upon appeal. . . .” OCGA § 5-6-48 (f).

Felix, supra, 271 Ga. at 538. It is readily apparent here that the state seeks to assert a single error: the trial court’s grant of Crapp’s motion for new trial. We therefore proceed to the merits.

2. Ineffective assistance of counsel.

“A claim of ineffective assistance of counsel is a mixed question of law and fact. The proper standard of review requires that we accept the [trial] court’s factual findings unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citations omitted.) Head v. Carr, 273 Ga. 613, 616 (4) (544 SE2d 409) (2001). Viewed with these principles in mind, the evidence showed that very early on the morning of February 16, 2007, a robber with what appeared to be a gun in his pocket robbed Tyhesha Strawder of $80 or $90 outside of her home as she was returning from work. The robber entered Strawder’s car and directed her to another location, where the robber took her cell phone and keys, got out, and went up to a house. Five or ten minutes later, the robber returned and directed Strawder to drive to an alley across from Strawder’s house, where he exited the car.

After the robber got out of her car, Strawder drove to a restaurant managed by an acquaintance. The acquaintance called the police. An officer arrived and drove Strawder around, trying to find the house where she had driven the robber. Strawder could not locate the house. She gave the officer a statement.

The next morning, Strawder and her mother retraced Strawder’s movements and were able to locate the house to which Strawder had driven the robber. At that house they encountered Lorenzo Simpson. Simpson identified Crapp as the individual who had come to the house the night before and purchased $80 worth of crack cocaine. Simpson knew Crapp because he had sold Crapp crack cocaine for three or four years and Crapp had sold cocaine for him.

Strawder was not able to identify the robber because she did not get a good look at his face. On the night of the incident, Strawder told the officer that the robber was approximately 5' 9" tall. Strawder testified at trial that the robber was taller than defense counsel, whom she estimated was 5'’6" or 5'7". At trial, an officer measured Crapp with a measuring tape as being 5' ’6" tall.

Crapp testified in his own defense and denied the allegations against him. He explained why Simpson might be motivated to identify him as the robber. Crapp owed Simpson money when Crapp came up short on his payment to Simpson for the crack Crapp was selling. Crapp testified that a man named Derry Brooks, who also sold drugs for Simpson, pistol whipped Crapp and robbed him of the money he owed Simpson. Crapp reported the incident to the police and made a written statement, and Brooks was arrested for armed robbery. Crapp ended up in the same jail as Brooks, was threatened, and retracted his statement implicating Brooks.

Crapp believed that Simpson identified him as Strawder’s robber because Crapp had Brooks arrested for armed robbery and because Crapp still owed Simpson money.

The prosecutor cross-examined Crapp on whether the incident with Brooks actually happened, whether he reported it to police, whether he gave a statement, and whether Brooks was arrested. In spite of Crapp’s testimony and cross-examination, Crapp’s trial counsel did not introduce any of the material, such as the Brooks indictment and arrest warrant, to corroborate Crapp’s testimony.

In the state’s closing argument, the prosecutor told the jury:

[Crapp] came up with the idea that he had reported this incident between [him] and Brooks to the police. Certainly there would have been a report made.
[I]f we had the report, then we could tender that. They have got the same option and the same ability to tender evidence just as I do. In fact, they did tender some evidence____If there had been such a police report, they could have tendered that as well.

She also told the jury:

Then we talked about Derry Brooks. Apparently the defendant knew Derry Brooks all of this time. He knew his name before yesterday and he knew his name in sufficient time in advance of this trial to get a picture of him. They would have you believe that it was not sufficient enough time to get a copy of a report or whatever statement that the defendant wrote about him when the incident happened between Mr. Crapp and Mr. Brooks. That is not reasonable.

About three or four months before trial, Crapp told trial counsel that Simpson would identify him as the person he had encountered the night of the robbery because of Crapp’s prior dealings with Simpson and Brooks. Trial counsel recalled Simpson’s bias as follows: Simpson employed both Crapp and Brooks as drug dealers; Crapp owed some kind of debt to Simpson; and Simpson ordered Brooks to rob Crapp at gunpoint. Trial counsel actually pulled the indictment of Brooks.

Trial counsel did not believe the Brooks indictment would be admissible because it ultimately was dismissed. He also was concerned that to introduce the indictment, the arrest warrant and other documents corroborating Crapp’s testimony would negatively impact Crapp’s credibility because Crapp withdrew his accusation, resulting in dismissal of the charge against Brooks; it would show that Crapp was willing to put someone in jail and willing to lie to get him out. He acknowledged that this information nevertheless mirrored Crapp’s testimony. In spite of the prosecutor’s cross-examination of Crapp underscoring the point that there should have been documents corroborating his testimony, trial counsel did not think that introducing the documents was necessary because Crapp’s testimony was believable and the documents added nothing to what Crapp had already said. Trial counsel was aware that Strawder did not identify Crapp as the robber and gave a description of the robber that “did not really match” Crapp. He knew that the primary evidence connecting Crapp to the crime was Simpson’s testimony.

To prevail on his claim of ineffective assistance of counsel, Crapp was required to show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). When determining deficient performance,

we address not what is prudent or appropriate, but only what is constitutionally compelled. The appropriate test for whether [Crapp’s] counsel was deficient is whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. Perfection is not required; an ineffectiveness analysis is simply intended to ensure that the adversarial process at trial worked adequately.

(Citations and punctuation omitted.) Head, supra, 273 Ga. at 625 (4) (C) (3). As for the prejudice component, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, supra, 466 U. S. at 694 (III) (B). In other words, the defendant must show that “there is a reasonable probability that, absent the errors, the- factfinder would have had a reasonable doubt respecting guilt.” Id. at 695 (III) (B).

The case was a pure credibility contest between Simpson and Crapp. And in such cases, defense counsel’s failure to introduce available evidence that corroborates a defendant’s testimony supports a finding that counsel’s performance was deficient. See Gibson v. State, 280 Ga. App. 435 (634 SE2d 204) (2006) (trial counsel rendered deficient performance when entire defense to vehicular homicide charges hinged on defendant’s testimony that his light was green at the time of the collision yet counsel failed to introduce records of prior occasions where light showed green in all four directions). See also Hart v. Gomez, 174 F3d 1067, 1067-1071 (I), (II) (9th Cir. 1999) (counsel’s failure to introduce documents that corroborated testimony crucial to the defense amounted to deficient performance). The trial court did not err in concluding that trial counsel’s performance was deficient.

“In close cases, where the evidence presented by the state is thin, mistakes made by trial counsel take on greater significance.” Zant v. Moon, 264 Ga. 93, 99 (2) (440 SE2d 657) (1994). See Strickland, 466 U. S. at 696 (III) (B) (“[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by [counsel’s] errors.”). “[S]ince the evidence against [Crapp] was not overwhelming, resting largely upon the identification testimony of one witness, ... a reasonable probability exists that the presence of [the corroborating evidence] would have affected the result.” Richardson v. State, 189 Ga. App. 113, 114 (375 SE2d 59) (1988). The trial court did not err in concluding that there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. Strickland, 466 U. S. at 694 (III) (B). See also Miller v. State, 285 Ga. 285 (676 SE2d 173) (2009).

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.

Decided October 2, 2012.

Gregory W. Edwards, District Attorney, ArkesiaS. Jenkins, Assistant District Attorney, for appellant.

Kevin C. Armstrong, for appellee.


author: Barnes, Presiding Judge.

text:
    A12A1580.
    FLEMISTER v. THE STATE.
    (732 SE2d 810)
   Barnes, Presiding Judge.

A jury convicted Bobby Flemister of possession of cocaine, possession of marijuana with intent to distribute, and possession of a firearm during the commission of a crime. On appeal from the denial of his motion for new trial, Flemister contends that there was insufficient evidence to convict him of possession of marijuana with intent to distribute; that the trial court erred in admitting into evidence a statement he made to a police lieutenant before he was informed of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966); and that the trial court erred in allowing hearsay testimony from the lieutenant linking him to a residence where drugs and drug paraphernalia had been found by the police. Flemister also argues that his trial counsel rendered ineffective assistance in several respects. For the reasons set forth below, we affirm.

Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the jury’s verdict. See Jackson v. State, 314 Ga. App. 272 (724 SE2d 9) (2012). So viewed, the evidence showed that on November 16, 2002, special agents with the Griffin-Spalding County Narcotics Task Force executed a search warrant at a residence where they suspected that drugs were being sold. As part of the surveillance conducted before the search, agents had observed Flemister’s car outside the house on several occasions, and they believed that he lived there. In preparing for execution of the warrant, the police lieutenant who led the task force briefed the other agents about the suspected drug activity at the house and about Flemister and his car.

When the lieutenant and other special agents arrived at the residence to execute the warrant, Flemister and his car were not there. The lieutenant stationed agents outside the house, advised them to be on the lookout for Flemister, and provided them with a physical description of his car.

Upon entering the residence, agents found crack cocaine residue, razor blades with crack cocaine residue on them, smoking devices, and green plastic baggies. Based upon his 11 years of training and experience as a narcotics agent and involvement in over 1,000 drug investigations, the lieutenant identified the baggies as the type commonly used for packaging large quantities of drugs into smaller bundles for distribution.

Agents also noticed that the residence lacked furniture, was extremely dirty, and had wax all over the countertops in different rooms where candles had been burned. There was no running water or power in the house, except for an extension cord that had been run through a window to a neighbor’s house to provide a small amount of electricity. According to the lieutenant, the house “appeared to be what’s commonly referred to as a . . . smokehouse,” which is “a residence where people can go in and can purchase quantities of illegal narcotics and use them right there on the scene.”

Agents also found documents on the floor of the living room. One of the documents was a business letter that was addressed to Flemister at the residence. Another document was a final judgment and decree of divorce for Flemister and his ex-wife. Like the business letter, the certificate of service for the final judgment and decree of divorce listed the residence as Flemister’s address.

As agents continued searching the residence, Flemister drove down the street in the car that had been described to the agents by the lieutenant. A crowd that had gathered outside began shouting to Flemister as he drove toward the house. One of the agents stationed outside heard the shouting and recognized the car coming down the road. The agent stepped into the middle of the road and yelled for Flemister to stop, but Flemister kept “looking straightforward,” ignored the agent’s commands, and continued driving past him. The agent quickly jumped into a patrol car with another agent and began to pursue Flemister. As the agents followed Flemister, he threw something out of his car window. When later recovered by one of the agents, the item thrown from the car was identified as a bag of individual green baggies containing a total of 11.81 grams of marijuana. The baggies were of the same type that had been found inside the residence.

After throwing the baggies of marijuana from his window, Flemister stopped his car, and an agent approached and detained him. Upon opening the driver’s side door of Flemister’s car, an agent saw cocaine in the window track of the open window. The agent also saw a plastic bag in the pocket of the door. The bag contained the corners of torn-off sandwich baggies with cocaine inside them. In addition to the cocaine, the agent saw a handgun in plain view next to the driver’s seat.

Flemister was placed in the back of a patrol car. The police lieutenant approached Flemister, told him that he was going to be transported to the county jail, explained to him that the jail was cold and had a shortage of blankets, and asked him “if he wanted a jacket out of his house.” Flemister responded that he wanted his green jacket out of the upstairs closet, and the lieutenant went inside and retrieved it for him. The verbal exchange about the jacket occurred before Flemister was advised of his Miranda rights.

Flemister was indicted and tried before a jury on charges of possession of cocaine with intent to distribute, possession of cocaine, possession of marijuana with intent to distribute, and possession of a firearm during the commission of a crime. Flemister was charged for the cocaine and firearm found in his car and the marijuana that he had thrown from his car; the State only introduced evidence of the drugs and drug paraphernalia found in the searched residence to prove circumstantially that he had the intent to distribute. The lieutenant and other agents involved in execution of the search warrant and arrest of Flemister testified to the events as summarized above, and the State also called as expert witnesses the individuals who tested the cocaine found in the car and the marijuana thrown from the car.

Flemister testified in his own defense. He admitted that he and his mother previously lived at the residence where the search warrant had been executed, but he claimed that neither of them lived there currently and that he had nothing to do with the “smokehouse” that the residence had become. According to Flemister, he had moved to another residence located down the same street, and the residence where the search occurred was now an “abandoned house” that had become squalid after he and his mother had moved out. Flemister testified that some of his mail might still be at the searched residence, but he denied having any belongings remaining there. He also claimed that the lieutenant and other agents were lying about the cocaine found in his car, about him throwing marijuana from his car window, and about his asking the lieutenant to retrieve the green jacket for him from the upstairs closet. Flemister further claimed that his brother drove the car as much as he did and that it was his brother who continued to “hang down there all the time” at the searched residence even after he and his mother had moved out.

After hearing all of the testimony, the jury convicted Flemister of possession of cocaine, possession of marijuana with intent to distribute, and possession of a firearm during the commission of a crime, but acquitted him of possession of cocaine with intent to distribute. Flemister filed a motion for new trial in which he contended, among other things, that his trial counsel had been ineffective. Following an evidentiary hearing, the trial court denied the motion, resulting in this appeal.

1. Flemister first contends that there was insufficient evidence to convict him of possession of marijuana with intent to distribute. Specifically, he argues that there was insufficient evidence showing that he acted with the intent to distribute the marijuana. We disagree.

“To prove possession with intent to distribute, the State must show more than mere possession of a controlled substance.” Gerlock v. State, 283 Ga. App. 229, 230 (1) (641 SE2d 240) (2007). “No bright line rule exists regarding the amount or type of evidence sufficient to support a conviction for possession with intent to distribute,” and “whether the State has proven an intent to distribute... is peculiarly a question of fact for determination by the jury.” (Citations and punctuation omitted.) Bailey v. State, 316 Ga. App. 78, 78-79 (728 SE2d 747) (2012). Furthermore, in addressing the sufficiency of the evidence, we are always mindful that it is not our role to weigh the evidence or determine the credibility of witnesses; instead, under the standard enunciated in Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979), we “only determine whether a rational trier of fact could have found the defendant guilty of the charged offense beyond a reasonable doubt.” (Citation omitted.) Jackson, 314 Ga. App. at 272.

The marijuana that one of the narcotics agents saw Flemister throw from his car window was packaged in individual green baggies of the same type as were found in the searched residence, and the police lieutenant testified that, based on his training and experience, baggies of the type found in the residence were commonly used for packaging marijuana for distribution.

[T]he evidence of the controlled substance in this case being packaged in a manner commonly associated with the sale or distribution of such contraband would authorize any rational trier of fact to infer that [Flemister] possessed [marijuana], a controlled substance, with intent to distribute.

(Citations and punctuation omitted.) Rutledge v. State, 224 Ga. App. 666, 668 (1) (482 SE2d 403) (1997). See Mayo v. State, 277 Ga. App. 282, 283 (1) (a) (626 SE2d 245) (2006); Gerlock, 283 Ga. App. at 230-231 (1); Williams v. State, 199 Ga. App. 544, 544-545 (1) (405 SE2d 539) (1991). Accordingly, we conclude that the State met its burden of proof in this case, and the jury was authorized to find Flemister guilty beyond a reasonable doubt of possession of marijuana with intent to distribute. See Jackson, 443 U. S. at 319 (III) (B).

2. Flemister next argues that the trial court erred in allowing the police lieutenant to testify on redirect examination that Flemister asked him to retrieve a green jacket from the upstairs closet of the searched residence. According to Flemister, his statement — which linked him to the residence where drugs and drug paraphernalia had been found and contradicted his testimony that he had no belongings there — was inadmissible because it was elicited by the lieutenant in violation of Miranda. We are unpersuaded.

To protect the Fifth Amendment privilege against self-incrimination, Miranda requires that, before being interrogated while in police custody, suspects receive warnings that (1) they have the right to remain silent; (2) their statements may be used against them at trial; (3) they have the right to have an attorney present during questioning; and (4) if they cannot afford an attorney, one will be appointed for them. Any pretrial statements obtained from a suspect in violation of Miranda are inadmissible at trial.

(Citations and punctuation omitted.) State v. Billings, 303 Ga. App. 419, 419-420 (693 SE2d 627) (2010). See Miranda, 384 U. S. at 478-479 (III), 492 (V). It is undisputed that Flemister, who had been arrested and placed in the back of a patrol car, was in police custody when he requested the green jacket. The question is whether Flemister’s request was made in response to being “interrogated” by the lieutenant.

“Interrogation for the purposes of Miranda warnings encompasses express questioning and words and actions that officers should know are reasonably likely to elicit an incriminating response from the subject.” Waters v. State, 281 Ga. 119, 122 (4) (636 SE2d 538) (2006). Furthermore, “[t]he determination of whether an interrogation occurs focuses primarily upon the reasonable perceptions of the suspect and not the intent of the officer, although the officer’s intent is relevant.” (Footnote omitted.) Logan v. State, 309 Ga. App. 95, 101 (3) (709 SE2d 302) (2011). In addition to the officer’s intent in asking the question, relevant factors for determining whether “under the totality of the circumstances the question was equivalent to ‘custodial interrogation’ . . . include the context in which the question was asked[ ]... and the relationship of the question to the crime.” Franks v. State, 268 Ga. 238, 240 (486 SE2d 594) (1997). The trial court’s finding as to whether, under the totality of the circumstances, a suspect’s statement was made in response to custodial interrogation will not be disturbed on appeal unless clearly erroneous. Barrett v. State, 289 Ga. 197, 199 (1) (709 SE2d 816) (2011).

Before trial, the trial court conducted a Jackson-Denno hearing, and the police lieutenant testified about his exchange with Flemister regarding the jacket. He testified that he had approached Flemister, who was sitting in the back of a patrol car, explained to him that the jail where he was being transported was cold that time of year and had a shortage of blankets, and asked “him if he wanted a jacket from his house.” He denied that his purpose in asking the question was to elicit an incriminating response from Flemister linking him to the searched residence, and testified that he never asked Flemister any questions pertaining to the drugs found at the residence or any of the charges being brought against him. According to the lieutenant, he simply assumed that Flemister would want a jacket “[b]ecause it’s very cold at the Sheriff’s Department in the holding cells and the booking area.” Additionally, the lieutenant pointed out that when he asked Flemister about the jacket, he and the other agents had already found paperwork addressed to Flemister and a photograph of him inside the residence. Hence, the lieutenant asked Flemister if he wanted a j acket from “his house” because the lieutenant presumed he lived there.

After hearing from the lieutenant, the trial court found that the lieutenant’s question regarding whether Flemister wanted a jacket from his house did not constitute an interrogation and that Flemister’s response was voluntary and admissible. In light of the lieutenant’s testimony at the Jackson-Denno hearing, there was some evidence supporting the trial court’s finding that the lieutenant’s question was not the functional equivalent of custodial interrogation under the totality of the circumstances, “but merely an initial inquiry into [Flemister’s] well-being.” Velazquez v. State, 282 Ga. 871, 878 (8) (655 SE2d 806) (2008). See generally Metts v. State, 270 Ga. 481, 484 (3) (511 SE2d 508) (1999) (“Asking questions normally attendant to arrest and custody is not a ‘custodial interrogation’ which requires the administration of Miranda warnings.”); Bone v. State, 311 Ga. App. 390, 392 (1) (715 SE2d 789) (2011) (officer’s question regarding ownership of car “was not designed to lead to incriminating evidence, but rather to garner information needed to most efficiently remove the car from the side of the road”); Silverio v. State, 306 Ga. App. 438, 447 (4) (702 SE2d 717) (2010) (officer’s question regarding whether suspect lived at apartment was question normally attendant to arrest and custody and was not interrogation). Consequently, we conclude that the trial court did not err in allowing the State to introduce into evidence Flemister’s response to the lieutenant’s question regarding a jacket.

3. During his direct examination, the police lieutenant testified that, before the search warrant at the residence was executed, he briefed the other agents participating in the search by telling them that the police had information that Flemister was selling crack cocaine and marijuana at the residence. Flemister asserts that the lieutenant’s testimony constituted inadmissible hearsay and impermissibly injectedhis character into evidence. See, e.g., Smoot v. State, 316 Ga. App. 102, 105 (1) (729 SE2d 416) (2012); Britton v. State, 257 Ga. App. 441, 443 (1) (571 SE2d 451) (2002). But Flemister’s trial counsel failed to object to the testimony. Any claim of error regarding the admission of the testimony thus has been waived for purposes of appeal. See Sanders v. State, 290 Ga. 445, 448 (3) (721 SE2d 834) (2012) (failure to object to bad character evidence waives appellate review of its admissibility); Jeffers v. State, 290 Ga. 311, 314 (4) (a) (721 SE2d 86) (2012) (failure to object to hearsay testimony waives appellate review of its admissibility).

4. Flemister also maintains that his trial counsel rendered ineffective assistance in several respects.

[I]n order to prevail on such a claim of the ineffective assistance of counsel pursuant to Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), a criminal defendant must demonstrate that his counsel’s performance was deficient and that, but for such deficiency, there is a reasonable probability that the outcome of the proceeding would have been different; on appeal, this Court is to accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, but it is to independently apply the legal principles to the facts.

(Citation omitted.) Johnson v. State, 290 Ga. 382, 383 (2) (721 SE2d 851) (2012).

(a) Flemister first contends that his trial counsel was ineffective for failing to object to the police lieutenant’s testimony, discussed supra in Division 3, that before the search warrant was executed, he briefed the other agents by telling them that the police had information that Flemister was selling crack cocaine and marijuana at the residence. He argues that an objection was warranted and would have been sustained because the lieutenant’s testimony was hearsay, impugned his character, and had the highly prejudicial effect of linking him to the residence used as a “smokehouse.”

We need not resolve whether Flemister’s trial counsel was deficient in failing to object to the lieutenant’s testimony. Considering all of the evidence introduced in this case, we conclude that even if trial counsel had objected, there is no reasonable probability that the outcome of the trial would have been different. In this respect, there was other evidence introduced at trial that drew a strong connection between Flemister and the residence used as a “smokehouse.” The evidence included the lieutenant’s testimony about Flemister’s car having been observed at the residence on several occasions before the day of the search, about the business letter and divorce decree belonging to Flemister that were found in the living room, and about Flemister’s request that his green jacket be retrieved from the upstairs closet. Additionally, the lieutenant testified that the green baggies containing the marijuana that Flemister had thrown from his car were the same as the baggies found in the residence.

Given the strength of the evidence linking Flemister to the residence, he cannot demonstrate that he was prejudiced by his trial counsel’s failure to object to the lieutenant’s testimony. The trial court, therefore, did not err in concluding that Flemister could not succeed on his ineffective assistance claim. See Martinez v. State, 303 Ga. App. 166, 172 (4) (692 SE2d 766) (2010) (“If the defendant cannot satisfy either of the two prongs of the Strickland test, his ineffective assistance claim fails.”) (citation omitted).

(b) Flemister next asserts that his trial counsel was ineffective for failing to object to the lieutenant’s testimony that the residence appeared to be a “smokehouse” where people would buy drugs and stay to consume them. According to Flemister, the lieutenant’s testimony was improper opinion evidence that invaded the province of the jury and had the effect of impugning his character because he had been tied to the residence through other evidence.

Flemister cannot succeed on his ineffective assistance claim because he cannot overcome the strong presumption that his trial counsel’s decision not to object was a matter of reasonable trial strategy, and thus cannot show that his counsel was deficient under the first prong of Strickland. “Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Punctuation and footnote omitted.) Gray v. State, 291 Ga. App. 573, 579 (2) (662 SE2d 339) (2008). Moreover, if trial counsel does not testify at the new trial hearing or is unable to recall anything specific about the matter at issue, “it is extremely difficult to overcome the presumption that counsel’s conduct resulted from reasonable trial strategy.” (Citation and punctuation omitted.) Brown v. State, 288 Ga. 902, 908 (5) (708 SE2d 294) (2011).

Flemister’s lead trial counsel did not testify at the hearing on his motion for new trial. His second-chair trial counsel testified that he did not know and would have to speculate as to why lead counsel, who had handled the examination of the lieutenant and had been the one to interpose objections when necessary, had chosen not to object to the testimony regarding the “smokehouse.” Under these circumstances, “any decision not to object [must be] presumed to be a strategic one.” Tyner v. State, 313 Ga. App. 557, 565 (6) (c) (722 SE2d 177) (2012). Thus, the only remaining question under the first prong of Strickland is whether that decision was so patently unreasonable that no competent attorney would have decided to forego making the objection. See Brown, 288 Ga. at 909 (5).

It is entirely reasonable for an attorney to make the strategic decision not to object at every opportunity. See Collier v. State, 303 Ga. App. 31, 34-35 (3) (692 SE2d 697) (2010). A competent attorney could have concluded that the better strategy in this case was to forego contesting that the residence in its current condition was a “smokehouse,” and instead focus the jury’s attention on whether Flemister had any present connection to the residence. Indeed, an examination of the trial record as a whole suggests that this was in fact the defense’s overall trial strategy. Accordingly, Flemister cannot prove that his counsel was deficient, and the trial court properly rejected his ineffective assistance claim.

(c) Flemister also argues that his trial counsel was ineffective for failing to move to suppress the business letter and divorce decree found in the living room of the searched residence. He contends that the documents were “private papers” not subject to search or seizure and thus would have been suppressed, had a proper motion been brought by his trial counsel.

“When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” (Citation and punctuation omitted.) Dade v. State, 292 Ga. App. 897, 901 (666 SE2d 1) (2008). Flemister has failed to make such a showing. Georgia law authorizes the seizure of “private papers” only under certain circumstances. See OCGA § 17-5-21 (a) (1), (a) (5), (b); Brogdon v. State, 287 Ga. 528, 529-530 (2) (697 SE2d 211) (2010). Significantly, however, “private papers” include “diaries, personal letters, and similar documents wherein the author’s personal thoughts are recorded,” but not mere public records or business or financial documents that do not contain personal thoughts. Smith v. State, 192 Ga. App. 298 (384 SE2d 459) (1989) (checks, deposit slips, and business letters were not “private papers”). See Ledesma v. State, 251 Ga. 885, 890 (7) (a) (311 SE2d 427) (1984) (deposit slips, business license, and employment contract were not “private papers”). Hence, the business letter and divorce decree at issue here did not fall within the category of “private papers,” and they would not have been suppressed even if trial counsel had filed a motion to suppress them. It follows that the trial court committed no error in denying Flemister’s ineffective assistance claim on this ground. See Dade, 292 Ga. App. at 901.

(d) Flemister further argues that his trial counsel was ineffective for failing to pursue a motion to suppress the crack cocaine and firearm found in his car and the marijuana thrown onto the street. He maintains that the special agents lacked articulable suspicion or probable cause to stop his car and detain him, and that, as a result, the stop and detention were unconstitutional and all subsequently seized evidence was tainted as fruit of the poisonous tree. Thus, he contends that the trial court would have suppressed the marijuana, crack cocaine, and firearm, if his trial counsel had filed a motion to suppress them.

Police officers are authorized to stop a vehicle and temporarily detain a suspect if they have “specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” Jones v. State, 314 Ga. App. 107, 108 (722 SE2d 918) (2012). The arrest of a suspect must be based on probable cause and

is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.

(Citations and punctuation omitted.) Davis v. State, 304 Ga. App. 355, 357-358 (1) (a) (696 SE2d 381) (2010). When these standards are applied to the case at hand, it is clear that the stop of Flemister’s car and his detention by the agents passed constitutional muster.

The record reveals that before obtaining the search warrant for the residence, special agents, through a controlled buy using a confidential informant, learned that drugs were being sold there. As part of the surveillance before the search, agents observed Flemister’s car at the residence on multiple occasions. Moreover, the agents stationed outside the residence during the search were provided a physical description of Flemister’s car and were told to be on the lookout for it. When Flemister drove by the residence, one of the agents recognized his car, stepped out into the middle of the road, and ordered him to stop, but he kept driving and then threw the marijuana out of his window as a patrol car followed him. After throwing the marijuana out of the window, Flemister stopped his car, and one of the agents detained him.

The agents who stopped Flemister’s car after he drove by the residence had articulable suspicion to make the stop, given that they had been briefed on the controlled buy and surveillance conducted at the residence and had been provided with a physical description of Flemister’s car. See In the Interest of H. A., 308 Ga. App. 111, 113 (2) (706 SE2d 615) (2011) (articulable suspicion to stop car existed where suspect’s car matched description that officers had received in be-on-the-lookout dispatch); Prado v. State, 306 Ga. App. 240, 245 (1) (701 SE2d 871) (2010) (“The existence of an articulable suspicion can be based on the collective knowledge of law enforcement officials.”) (punctuation and footnote omitted); Lester v. State, 226 Ga. App. 373, 375 (1) (487 SE2d 25) (1997) (articulable suspicion existed to stop car based upon controlled buy and information received from informant).

It is unclear from the existing record at what point Flemister was arrested after the stop of his car. But even if Flemister was arrested immediately upon stopping his car, probable cause existed for his arrest. In addition to the facts and circumstances discussed above that provided articulable suspicion for the stop of Flemister’s car, the agents observed him ignore a command to stop his car and throw marijuana out of his window before detaining him. These combined facts provided the agents with probable cause to arrest Flemister. See State v. Deshon, 194 Ga. App. 425, 425-426 (390 SE2d 651) (1990) (suspect’s attempted flight and throwing of contraband from car supplied officers with probable cause).

For the foregoing reasons, Flemister cannot show that the drugs and firearm would have been suppressed, had his trial counsel filed a motion to suppress. Consequently, he cannot show that his trial counsel was deficient, and the trial court committed no error in denying his ineffective assistance claim. See Dade, 292 Ga. App. at 901.

(e) Lastly, Flemister argues that his trial counsel was ineffective by eliciting testimony from the police lieutenant on cross-examination about a controlled buy that had been made at the residence using a confidential informant. However, “[t]he scope of cross-examination is grounded in trial tactics and strategy.” (Citation and punctuation omitted.) Martinez, 303 Ga. App. at 174 (4) (b). When read in context, trial counsel’s questioning of the lieutenant about the controlled buy was part of a strategy of showing that the police had surveillance equipment at their disposal but had failed to introduce any photographs or audio-visual recordings in this case implicating Flemister in any wrongdoing. Trial counsel’s aim clearly was to cast doubt on the State’s version of the facts by showing that a faulty investigation had been conducted.

“Substantial latitude is given during judicial review of trial counsel’s decisions regarding trial strategy [,]... [and] this Court does not evaluate trial counsel’s tactics and strategic decisions in hindsight.” (Citations and punctuation omitted.) Billington v. State, 313 Ga. App. 674, 682 (2) (c) (722 SE2d 395) (2012). Because we cannot say that the strategy devised by Flemister’s trial counsel for cross-examining the lieutenant was patently unreasonable under the circumstances presented, the trial court was authorized to deny Flemister’s ineffective assistance claim. See Martinez, 303 Ga. App. at 172-174 (4) (b); Evans v. State, 288 Ga. App. 103, 108-109 (3) (b), (c) (653 SE2d 520) (2007).

Decided October 2, 2012.

William A. Adams, Jr., for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       The indictment also charged Flemister with one count of possession of cocaine with intent to distribute within 1,000 feet of a school, one count of possession of marijuana with intent to distribute within 1,000 feet of a school, and two counts of possession of a firearm by a convicted felon, hut the State later requested and obtained entry of a nolle prosequi on those counts.

       The State argues that Flemister’s statement about the jacket was admissible, irrespective of whether there was a Miranda violation, because it was introduced only to impeach Flemister’s testimony that he had no belongings at the searched residence. It is true that “[a] prior inconsistent statement of a criminal defendant is admissible for the limited purpose of impeaching trial testimony of the defendant even though the prior inconsistent statement would otherwise be inadmissible due to Miranda violations in defendant’s trial.” Hicks v. State, 256 Ga. 266, 268 (1) (347 SE2d 589) (1986). See Frazier v. State, 311 Ga. App. 293, 295 (1) (715 SE2d 712) (2011). But the jury must be “expressly instructed that the evidence is admitted for the purpose of impeachment only, whether or not a request to so charge [is] made, and whether or not any [objections] are made to the charge as given.” (Citation and punctuation omitted.) Askea v. State, 153 Ga. App. 849, 853 (5) (267 SE2d 279) (1980). See Eldridge v. State, 270 Ga. App. 84, 86 (2) (606 SE2d 95) (2004); Colbert v. State, 124 Ga. App. 283, 285 (2) (183 SE2d 476) (1971). Because no limiting instruction was given when the lieutenant testified about Flemister’s request for a jacket, the lieutenant’s testimony cannot he said to have been admitted solely for impeachment. See id.

       See Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       It is true that the lieutenant testified, that he later wrote down in his police report that Flemister had requested a jacket just in case the matter “c[a]me up later on,... if he tried to say that the house was not his. That he didn’t know what was inside the house.” But the fact that the lieutenant was careful to memorialize in writing what he saw and heard does not mean that, at the time he made the offer to retrieve a jacket for Flemister, he did so with the aim of eliciting an incriminating response or had any reason to believe that Flemister would later deny living at the house that contained paperwork and a photograph clearly linking him to it.

       After the trial, lead trial counsel suffered a stroke and was not in a condition to testify at the new trial hearing.

       We note that even if the agents had lacked articulable suspicion to stop Flemister’s car, the marijuana discarded out of the car window before the stop still would have been admissible. See Gray v. State, 254 Ga. App. 487, 488 (1) (562 SE2d 712) (2002) (suspect had no expectation of privacy in bag of illegal drugs that he discarded while fleeing from police, even if officers who stopped car acted without articulable suspicion of criminal activity).