author: ANDREWS, Presiding Judge. McFadden, Judge,

text:
    A14A1788.
    THE MEDICAL CENTER HOSPITAL AUTHORITY v. CAVENDER. SECURITAS SECURITY SERVICES, USA, INC. v. CAVENDER. THE MEDICAL CENTER HOSPITAL AUTHORITY v. BAKER et al. DOCTORS HOSPITAL, INC. v. BAKER et al. SECURITAS SECURITY SERVICES, USA, INC. v. BAKER et al. THE MEDICAL CENTER HOSPITAL AUTHORITY v. WRIGHT et al. SECURITAS SECURITY SERVICES, USA, INC. v. WRIGHT et al.
    A14A1789.
    A14A1790.
    A14A1791.
    A14A1792.
    A14A1793.
    A14A1794.
    (771 SE2d 153)
   ANDREWS, Presiding Judge.

In these interrelated appeals arising from a 2008 triple homicide at Doctors Hospital in Muscogee County, Plaintiffs Alan Keith Cavender, Marion Baker, and Carla Wright (collectively, “Plaintiffs”) brought three separate civil actions against Defendants Doctors Hospital, Inc. d/b/a Doctors Hospital, The Medical Center Hospital Authority, and Securitas Security Services, USA, Inc. (collectively, “Defendants”) for personal injury (Cavender) and for wrongful death (Baker and Wright). The Defendants each filed motions for summary judgment, and following extensive briefing and a hearing, the Superior Court of Muscogee County summarily denied the motions. The trial court granted the Defendants certificates for immediate review, we granted the Defendants’ applications for interlocutory appeal, and we have consolidated the appeals for decision. For the reasons that follow, we conclude that the trial court erred in denying the Defendants’ motions for summary judgment, and therefore reverse.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. Further, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

La Quinta Inns v. Leech, 289 Ga. App. 812-813 (658 SE2d 637) (2008).

Viewed in a light most favorable to the Plaintiffs, the evidence revealed that, for several years, Securitas provided security services to Doctors Hospital pursuant to a security agreement. Securitas provided security guards on three different shifts, including one security guard during the day, to monitor Doctors Hospital. As a part of its service to Doctors Hospital, Securitas also provided annual security surveys to Doctors Hospital. The purpose of the surveys was to “assess the efficiency of the security” at Doctors Hospital. These surveys included areas where improved security may be warranted. In particular, Securitas noted that certain entryways should be secured to control ingress and egress, replacement of the closed-circuit TV monitoring system, and additional coverage of the premises by video cameras.

On February 29, 2008, the Hospital Authority purchased, and took ownership of, the Doctors Hospital campus. On the same date, the Hospital Authority entered into a management agreement with Doctors Hospital, Inc. to manage the day-to-day operations of the hospital. Well prior to the Hospital Authority’s acquisition of the hospital, the hospital was required by the Joint Commission on the Accreditation of Healthcare Organizations to maintain policies and procedures for, among other things, security. To satisfy its Joint Commission obligation, the prior ownership of Doctors Hospital purchased a “Security Management Policy and Procedure Manual” from Medical Consultants Network, Inc. in the 1990s. Policy 110.015 of the manual included a section defining 18 crimes, both violent and nonviolent, that hospital security “are likely to be called upon to prevent” and “most likely to encounter.” Crimes defined in the policy include assault, battery, manslaughter and murder.

On March 27, 2008, Charles Johnston visited Doctors Hospital carrying two concealed handguns beneath a light jacket. He proceeded to the fifth floor, which housed the hospital’s intensive care unit. He then left the hospital for some time and returned on two occasions that day, going to the fifth floor on both occasions. On his third attempt in the early afternoon hours, a nurse asked Johnston if he needed any assistance; he calmly replied that he did not. Johnston then saw Peter Wright enter a room, and Johnston followed him. Johnston asked Wright, “Do you remember me[,] [d]o you remember my mother [,]” and Johnston produced one of the concealed handguns and shot Wright at close range. Wright fell to the floor, and Johnston shot him a second time. Wright later died during surgery.

Alan Keith Cavender was on the fifth floor and saw the shooting. Les Harris, hearing the gunshots, ran up the stairwell from the fourth floor to the fifth floor to investigate. Harris asked Cavender to check the stairwell while he monitored the elevators. As the two ran down the hall, Johnston appeared; Johnston shot Harris in the chest, killing him instantly. Cavender attempted to provide CPR to Harris, and Johnston placed his handgun against the back of Cavender’s head and cocked the handgun. Cavender told Johnston to “[g]o ahead and shoot me [because] [y]ou just killed my [life] partner.” Instead, Johnston struck Cavender on the back of the head and fled down the stairwell.

Wayne Michaux, the lone Securitas security guard on duty at Doctors Hospital on the day of the shooting, was patrolling the parking lot when he received urgent “code blue,” “code nine,” and “shots fired” calls from Doctors Hospital on his radio. Michaux ran to the emergency room and ordered employees to shut down the ER to prevent anyone from entering or leaving. Someone shouted, “there he is,” and Michaux spotted Johnston. Although Michaux then called 911 to report the shootings, the call center had already received multiple calls concerning Johnston’s rampage. Johnston was unable to enter the ER, so he left the hospital and walked to the parking lot. Michaux, though unarmed, followed Johnston through the parking lot and warned visitors in the parking lot to take cover.

James David Baker was parked next to Johnston. As Johnston approached his vehicle, Baker began to exit his vehicle. Johnston shot Baker, and Baker fell back into his vehicle. Law enforcement authorities arrived in the parking lot, and Michaux directed them to Johnston. Johnston exchanged gunfire with the authorities and was himself shot during the incident before he was apprehended. Officers found three handguns on Johnston’s person. A medical team from Doctors Hospital reached Baker’s vehicle shortly after the shooting but was unable to save Baker’s life.

All Cases

1. In each appeal, the respective Defendants contend that the Plaintiffs failed to present sufficient evidence that Johnston’s attack against Cavender or Johnston’s murder of James Baker, Les Harris, and Peter Wright was foreseeable. For the following reasons, we agree.

It is well settled that the following four elements are necessary to support a cause of action for negligence under Georgia law:

(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risk of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.

Leech, 289 Ga. App. at 816 (1); Brown v. All-Tech Investment Group, 265 Ga. App. 889, 893 (1) (595 SE2d 517) (2004).

In this case, Johnston entered Doctors Hospital with concealed weapons. He proceeded to the fifth floor and targeted Wright, who Johnston believed deliberately caused a decline in his mother’s health when she was hospitalized in the Doctors Hospital ICU, resulting in her death. Johnston approached Wright and shot him. Wright fell to the floor and Johnston shot Wright a second time. After shooting Wright, Johnston encountered Cavender and Harris, who had come to the fifth floor to investigate the gunshots. Johnston then shot and killed Harris, struck Cavender in the back of the head, and fled the hospital. In the parking lot, Johnston shot and killed Baker as Baker tried to exit his vehicle, which was parked next to Johnston’s vehicle. Johnston then exchanged gunfire with law enforcement authorities before he himself was shot and subsequently subdued. In view of Johnston’s criminal attacks, the question becomes whether those criminal acts were reasonably foreseeable. See Brown, 265 Ga. App. at 894 (1), 900-901.

As a threshold matter, “a property owner is not an insurer of an invitee’s safety, and an intervening criminal act by a third party generally insulates a proprietor from liability unless such criminal act was reasonably foreseeable.” Ratliff v. McDonald, 326 Ga. App. 306, 312 (2) (a) (756 SE2d 569) (2014). See also Days Inn of America v. Matt, 265 Ga. 235, 236 (454 SE2d 507) (1995); Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991). “If the proprietor has reason to anticipate a criminal act, he or she then has a duty to exercise ordinary care to guard against injury from dangerous characters.” (Punctuation omitted.) Days Inn, 265 Ga. at 236. Put simply, “without foreseeability that a criminal act will occur, no duty on the part of the proprietor to exercise ordinary care to prevent that act arises.” Id.

“Foreseeable consequences are those which are probable, according to ordinary and usual experience, [or] those which, because they happen so frequently, may be expected to happen again.” (Punctuation omitted.) Brown, 265 Ga. App. at 894. See also Thomas v. Food Lion, 256 Ga. App. 880, 882 (1) (570 SE2d 18) (2002); Cope v. Enterprise Rent-A-Car, 250 Ga. App. 648, 651 (2) (551 SE2d 841) (2001) (the law judges foreseeability of consequences “according to the usual experience of mankind”). Of particular relevance to this case, “one is not bound to anticipate or foresee and provide against that which is unusual or that which is only remotely and slightly probable.” (Citations and punctuation omitted.) Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 68 (I) (2) (d) (397 SE2d 576) (1990). See also Brown, 265 Ga. App. at 894. Stated differently, the exercise of ordinary care “simply does not create a duty to anticipate unlikely, remote, or slightly possible events.” (Punctuation omitted.) McDaniel v. Lawless, 257 Ga. App. 187, 189 (570 SE2d 631) (2002). Thus, absent evidence that Johnston’s rampage was foreseeable, summary judgment in the Defendants’ favor would be appropriate. See id.

Foreseeability may be determined by analyzing whether the property owner has notice of substantially similar prior criminal acts. Sturbridge Partners v. Walker, 267 Ga. 785, 786 (482 SE2d 339) (1997); Ratliff, 326 Ga. App. 306, 312 (2) (a). In determining whether a given crime is “substantially similar,” a court must analyze the “location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question.” Sturbridge, 267 Ga. at 786. While the primary criminal activity must be substantially similar, it need not be identical; what is required “is that the prior incident be sufficient to attract the [hospital’s] attention to the dangerous condition which resulted in the litigated incident.” (Punctuation omitted.) Id. “Without a showing of substantial similarity, the evidence is irrelevant as a matter of law and there is nothing upon which the court’s discretion can operate.” (Citations omitted.) Adler’s Package Shop v. Parker, 190 Ga. App. 68, 70 (1) (a) (378 SE2d 323) (1989). In addition, it is the Plaintiffs’ burden to establish that the property owner had knowledge of the previous substantially similar crimes on or near the premises upon which the plaintiffs rely to establish foreseeability. See Baker v. Simon Property Group, 273 Ga. App. 406, 407 (1) (614 SE2d 793) (2005) (carjacking and shooting in a mall parking lot not foreseeable to mall manager or security company); McClendon v. Citizens and Southern Nat. Bank, 155 Ga. App. 755, 756 (272 SE2d 592) (1980) (robbery in a bank parking lot not foreseeable to bank).

(a) Substantially Similar Crimes. In response to the Defendants’ motions for summary judgment, the Plaintiffs supplied a collection of police reports detailing incidents at Doctors Hospital and a neighboring property, The Medical Center. The records, which begin in 2002 and continue through 2008, purport to show the nature of criminal activity at the hospitals in an effort to demonstrate that the Defendants were on notice that something like Johnston’s rampage was foreseeable. However, these reports are not persuasive.

Of primary importance, the reports are most notable for what they do not show. Of the 11 police reports from Doctors Hospital relied upon by the Plaintiffs, none involved multiple murders, a single murder, a shooting, a weapon, or, for that matter, a significant injury. Indeed, the majority of the reports detail nothing more than verbal threats. See Aldridge v. Tillman, 237 Ga. App. 600, 605 (2) (516 SE2d 303) (1999) (prior verbal threats of violence not substantially similar to assault with a knife); Ableman v. Taco Bell Corp., 231 Ga. App. 761, 763 (501 SE2d 26) (1998) (prior verbal threats of violence does not constitute knowledge that person would physically attack a third party). Likewise, of the 32 reports from The Medical Center upon which the Plaintiffs rely, none involved multiple murders, a single murder, a shooting, or a significant injury. Only two incidents at The Medical Center involved a weapon (late-night armed robberies in The Medical Center’s parking lot), although neither involved actual discharge of the weapon. Furthermore, these two incidents in the parking lot at a neighboring property occurred more than five years prior to Johnston’s rampage inside Doctors Hospital.

At best, then, the police reports provided by the Plaintiffs show two armed robberies at a neighboring property at least five years prior to Johnston’s rampage. Foreseeable consequences are “those which, because they happen so frequently, may be expected to happen again.” (Punctuation omitted; emphasis supplied.) Brown, 265 Ga. App. at 894. In Brown, we noted that assaults like Johnston’s are not legally foreseeable because they are so “unusual, contrary to ordinary experience, and rare that no reasonable jury could find the [defendants] should have guarded against them.” 265 Ga. App. at 896 (1). As a result, it simply cannot be said that Johnston’s rampage at Doctors Hospital was foreseeable because the prior incidents to which the Plaintiffs referred were not substantially similar to the assault which resulted in the Plaintiffs’ damages. See Baker, 273 Ga. App. at 408 (1) (prior property crimes in parking lot insufficient to create a factual issue whether defendants could anticipate a carjacking and shooting resulting in personal injury); Scott v. Housing Auth. of City of Glennville, 223 Ga. App. 216, 217 (477 SE2d 325) (1996). Therefore, we find that the trial court erroneously denied the Defendants’ motions for summary judgment on this basis. See Agnes Scott College v. Clark, 273 Ga. App. 619, 622 (1) (616 SE2d 468) (2005); Baker, 273 Ga. App. at 408 (1); Brown, 265 Ga. App. at 894, 896 (1).

Furthermore, the Plaintiffs’ attempt to show foreseeability through the testimony of Anthony Potter, a security expert with many years of experience in hospital security, is unavailing. Potter opined, based upon a review of Doctors Hospital’s procedures, the 2008 Securitas security survey, deposition summaries and “numerous publications on the issue,” that Johnston’s rampage was foreseeable due to an “increase in the number of shooting incidents at healthcare facilities,” the “increase in the number of violent confrontations between patients and/or family members and healthcare providers,” and that there was no “visible deterrent” to such actions at Doctors Hospital.

Potter’s opinions are of the same character as the tendered experts’ testimony in Brown. In Brown, the experts “discussed generalized concepts of violent reactions to financial disaster and workplace violence.” 265 Ga. App. at 895. The experts’ testimony relied upon two prior shootings in the financial services industry which occurred years prior, a death threat issued by a day trader to company management, and financial advisor suicides following the stock market crash of 1929. Id. Here, in much the same vein, Potter relied upon a generalized increase in healthcare violence without specific reference to such violence. See Agnes Scott, 273 Ga. App. at 622-623 (1) (reliance on generalized information like crime statistics does not create issue of fact concerning foreseeability). Furthermore, it does not appear that Potter analyzed the lack of substantially similar violence at Doctors Hospital and its environs. Sturbridge, 267 Ga. at 786; Ratliff, 326 Ga. App. 306, 312 (2) (a); Brown, 265 Ga. App. at 894 (1) . Compare Brookview Holdings v. Suarez, 285 Ga. App. 90, 96-97 (2) (645 SE2d 559) (2007) (expert testimony based upon “study of the area surrounding [location of crime], the record of crime in that area, and their experience with crimes of [that] nature”). Therefore, we find that Potter’s opinions illustrate “that even arguably similar acts of violence were so unusual, contrary to ordinary experience, and rare that no reasonable jury could find [that Doctors Hospital] should have guarded against them.” Brown, 265 Ga. App. at 896.

(b) Defendants’ Knowledge. In addition to demonstrating substantially similar crimes on or near Doctors Hospital’s premises, the Plaintiffs bore the burden to establish that the property owner had knowledge of the previous substantially similar crimes to establish foreseeability. See Baker, 273 Ga. App. at 407 (1); McClendon, 155 Ga. App. at 756. In this regard, the Plaintiffs again failed. The record is devoid of any evidence that the Defendants knew of the criminal activity cited by the Plaintiffs at Doctors Hospital or its neighbor. Compare Shoney’s, Inc. v. Hudson, 218 Ga. App. 171, 173 (2) (460 SE2d 809) (1995) (knowledge shown, in part, by management conversations concerning danger to customers in parking lot). Absent any such proof, the Plaintiffs cannot prevail. See Baker, 273 Ga. App. at 407 (1); McClendon, 155 Ga. App. at 756. Nor can the Plaintiffs rest upon the police reports as a means to establish the Defendants’ knowledge of the activities contained in those reports. See Wojcik v. Windmill Lake Apts., 284 Ga. App. 766, 769 (645 SE2d 1) (2007); Scott, 223 Ga. App. at 217 (statement that defendant had knowledge of prior incidents was based upon assumption that defendant gained such knowledge because the incidents were investigated by police; “such an inference ... is not authorized”) (citing SunTrust Banks v. Killebrew, 266 Ga. 109 (464 SE2d 207) (1995)). In sum, the trial court erred in denying the Defendants’ motions for summary judgment due to the lack of foreseeability of Johnston’s rampage.

Case Nos. A14A1788, A14A1790, and A14A1798 (Medical Center Hospital Authority)

2. In its two enumerations of error, the Hospital Authority contends that there were no genuine issues of material fact that: (a) Johnston’s actions against James Baker, Les Harris, and Peter Wright were not foreseeable; and (b) Johnston’s intervening criminal actions formed the proximate cause of the Plaintiffs’ injuries. These issues have been addressed in Division 1, supra, and we have concluded that the trial court erroneously denied the Hospital Authority’s motions for summary judgment.

3. In view of our holdings in Divisions 1 and 2, supra, we need not address the Hospital Authority’s argument concerning Cavender’s superior knowledge of Johnston’s threat, or even whether the argument is properly before this Court.

Case Nos. A14A1789, A14A1792, and A14A1794 (Securitas)

4. In addition to its arguments concerning foreseeability and proximate cause, Securitas contends that it owed no legal duty to prevent Johnston’s actions. We agree.

In personal injury cases, an injured party may not recover as a third-party beneficiary for failure to perform a duty imposed by a contract unless it is apparent from the language of the agreement that the contracting parties intended to confer a direct benefit upon the plaintiff to protect him from physical injury.

(Citations and punctuation omitted.) Brown, 265 Ga. App. at 897 (2) (a) (i) (citing Anderson v. Atlanta Committee for the Olympic Games, 273 Ga. 113, 117 (4) (537 SE2d 345) (2000)). Furthermore,

[ajlthough the third-party beneficiary need not be specifically named in the contract, the contracting parties’ intention to benefit the third party must be shown on the face of the contract. The mere fact that [the third party] would benefit from performance of the agreement is not alone sufficient.

(Citations and punctuation omitted.) Id. And as we have stated before,

[w]e recognize that whenever a premises owner contracts with a private security company the parties may expect the security services provided to benefit invitees who visit the property. As we have held, however, an injured invitee may not recover against the security company for negligent performance if the contract is silent as to the parties’ intent to confer that benefit.

Id. (citing Anderson, 273 Ga. at 117-118 (4); Armor Elevator Co. v. Hinton, 213 Ga. App. 27, 30 (2) (443 SE2d 670) (1994)). See also CDP Event Svcs. v. Atcheson, 289 Ga. App. 183, 185 (1) (656 SE2d 537) (2008) (same).

Here, the security agreement governing Securitas’ relationship with Doctors Hospital specifically disavowed any intent to confer a direct benefit on Doctors Hospital’s employees or customers (“The services provided under this Agreement are solely for the benefit of [Doctors Hospital;] neither this Agreement nor any services rendered hereunder shall be deemed to confer any rights on any other party as a third party beneficiary.”). Consequently, even when construed in the Plaintiffs’ favor, the evidence does not support a finding that the Plaintiffs were third-party beneficiaries of Securitas’ security agreement with Doctors Hospital. See Brown, 265 Ga. App. at 897 (2) (a) (i). See also Anderson, 273 Ga. at 117-118 (4); Armor Elevator, 213 Ga. App. at 30 (2).

5. Next, Securitas alleges that the Plaintiffs failed to present any admissible evidence establishing a breach of any duty allegedly owed by Securitas. As noted supra, Securitas’ security agreement mandated that Securitas supply one unarmed guard to monitor Doctors Hospital during daytime hours. Michaux was present on the date of Johnston’s rampage and was patrolling the Doctors Hospital property to satisfy Securitas’ contractual obligation. Moreover, Michaux’s conduct reveals that there was no breach of Securitas’ duty.

The evidence demonstrates that Michaux did not learn of the rampage until he received urgent calls from Doctors Hospital. When he learned of the shootings, he immediately proceeded to the emergency room, called 911, and ordered employees to lock down the emergency room. When Johnston was unsuccessful in gaining entry to the emergency room due to Michaux’s actions, Johnston left, and Michaux followed him. In the parking lot, Michaux warned visitors to take cover. When law enforcement authorities arrived, Michaux directed them to Johnston. Michaux was not permitted to confront or attempt to arrest Johnston; rather, he was required to report any activity to law enforcement authorities, which he did. For his actions, Michaux received awards from Securitas and the Muscogee County Sheriff. In short, even when viewed in favor of the Plaintiffs, as this Court must, Michaux went to great lengths to fulfill Securitas’ contractual responsibility to monitor Doctors Hospital. Accordingly, it follows that the trial court erred in denying Securitas’ motion for summary judgment because there was no breach of any duty allegedly owed by Securitas.

Case No. A14A1791 (Doctors Hospital)

6. In its second enumeration of error, Doctors Hospital argues that its policy concerning hospital security cannot alone create an issue of fact concerning foreseeability. We agree. Although the Plaintiffs submitted authorities from other jurisdictions to support the argument that a party may adopt the statement of another, those authorities are unnecessary to our resolution of this case. Georgia law suggests that there are two primary methods to establish foreseeability. Our courts have held that “[ejvidence of a prior substantially similar act is one way to establish notice and foreseeability, and in most cases it will be the only possible way to do so.” Wallace v. Boys Club of Albany, 211 Ga. App. 534, 536, n. 2 (439 SE2d 746) (1993). See also Sturbridge, 267 Ga. at 786; Brown, 265 Ga. App. at 894 (1). However, we have also noted that “a danger could be so obvious that an issue for jury determination could exist regarding notice and/or foreseeability despite the absence of a prior similar incident on those premises.” Id. Compare Shoney’s, 218 Ga. App. at 173 (2) (foreseeability shown, in part, by prior armed robberies and by management conversations concerning danger to customers in parking lot). In this case, as discussed in greater detail in Division 1, supra, neither factor is present. As a result, it was error for the trial court to deny Doctors Hospital’s motion for summary judgment on this ground.

7. In its final enumeration of error, Doctors Hospital claims that the trial court erroneously denied its motion for summary judgment as to punitive damages because Baker failed to present any evidence of malicious, wilful or wanton misconduct. However, because of the unforeseeability of Johnston’s rampage, there was no duty by Doctors Hospital to guard against such a violent rampage. And without entitlement to compensatory damages, punitive damages may not be awarded. See Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 270 (2) (416 SE2d 274) (1992); Gwinnett Health System v. Delu, 264 Ga. App. 863, 869 (3) (592 SE2d 497) (2003); Sharp v. Greer, Klosik & Daugherty, 256 Ga. App. 370, 373 (6) (568 SE2d 503) (2002). As a result, we conclude that the trial court erred in denying Doctors Hospital’s motion for summary judgment on punitive damages.

Decided March 24, 2015.

Rothschild & Rothschild, Jerome M. Rothschild, Andrew A. Rothschild, for appellant (case nos. A14A1788, A14A1790, A14A1793).

Swift, Currie, McGhee & Fliers, Lynn M. Roberson, for appellant (case nos. A14A1789, A14A1792, A14A1794).

Hall Booth Smith, W. Scott Henwood, Mark W. Wortham, PaulD. Ivey, Jr., Lauren K. Dimitri, for appellant (case no. A14A1791).

Charles A. Gower, Philips, Branch & Hodges, Ben B. Philips, for appellees.

Judgments reversed and cases remanded with direction.

Ray, J., concurs. McFadden, J., concurs and concurs specially.

McFadden, Judge,

concurring specially.

I write separately to withhold my full concurrence from footnote 9 of Division 1 (b), in which the majority addresses the plaintiffs’ attempt to impute the Medical Center’s knowledge to Doctors Hospital. This footnote might be read to establish an overbroad precedent regarding imputation of knowledge between interrelated entities. I would not reach that issue. Because I do not fully concur in it, the footnote does not establish precedent. Court of Appeals Rule 33 (a). I concur fully in the remainder of the opinion.

I write also, however, to disassociate myself from the majority’s unfortunate decision to publish in footnote 5 of Division 1 the Hospital Authority’s allegation that one of the plaintiffs, who witnessed the murder of his life partner, is lying about having been himself the victim of an assault. That plaintiff has asked us to strike and ignore that allegation because it is “wholly unnecessary, inflammatory, and improperly (particularly on appeal from a summary judgment decision) seek[s] to impugn [his] credibility and reputation.” Just so. We ought to have ignored it. The allegation would have been highly relevant at trial; but unless we are reversed on certiorari, there will be no trial. We do, from time to time appropriately note that facts we must assume to be true are disputed — particularly where a party is accused of misconduct. But the reference here is gratuitous.

       Additional defendants were also initially named as parties; however, the Plaintiffs dismissed those defendants without prejudice during the course of the parties’ litigation. As a result, Doctors Hospital, the Hospital Authority, and Securitas comprise the remaining defendants that are the subjects of these appeals.

       Cavender filed his civil action in his individual capacity against the Hospital Authority and Securitas in Case Nos. A14A1788 and A14A1789, respectively. Baker and Wright each brought their actions in their capacities as the surviving spouses of James David Baker (Case Nos. A14A1790 [the Hospital Authority], A14A1791 [Doctors Hospital], andA14A1792 [Securitas]) and Peter Wright (Case Nos. A14A1793 [the Hospital Authority] and A14A1794 [Securitas]), respectively, and as the executrixes of the estates of Messrs. Baker and Wright.

       In approximately 2004, Johnston’s mother was a patient in the intensive care unit of Doctors Hospital. During her stay, one of the nurses who allegedly provided her care was Wright. Johnston believed that Wright unplugged Johnston’s mother from a ventilator, which led to brain damage and blindness. Ultimately, Johnston’s mother passed away while a patient at Doctors Hospital.

       These arguments, as well as the Defendants’ arguments concerning proximate cause, are included in: (1) the Hospital Authority’s two enumerations of error in Case Nos. A14A1788, A14A1790, and A14A1793; (2) Securitas’ third and fourth enumerations of error in Case Nos. A14A1789, A14A1792, and A14A1794; and (3) Doctors Hospital’s first and third enumerations of error in Case No. A14A1791.

       The Hospital Authority contends that Cavender fabricated his testimony that Johnston struck him in an effort to secure damages for his emotional distress flowing from Johnston’s rampage. The Hospital Authority’s position is based upon the lack of a criminal charge against Johnston for any assault or battery of Cavender, and that neither the State nor Johnston himself referred to Cavender during Johnston’s guilty plea hearing. Nevertheless, for purposes of these appeals, we accept Cavender’s testimony as true.

       The Medical Center is located on a separate, adjacent campus and does not share an address with Doctors Hospital.

       Although the Plaintiffs submitted 73 different police reports, the Plaintiffs only relied upon a total of 43 in their briefing to the trial court. As a result, our review will be limited to those police reports actually argued to the trial court.

       In addition, although the Plaintiffs suggest through Cavender’s testimony that Johnston’s appearance raised a “red flag” to Cavender and Harris, the record is devoid of any effort to report any suspicion to Michaux or to anyone else. As a result, there is no indication that the Defendants were on notice that Johnston in particular could be dangerous or posed a threat.

       Indeed, the extent of the Plaintiffs’ efforts on this point may be summarized in one of its own briefs: knowledge of Doctors Hospital’s management, gained through its prior management of neighboring Medical Center, “certainly included knowledge of the crimes and violence committed at the neighboring Medical Center Hospital.” See generally Johns v. Housing Auth. for the City of Douglas, 297 Ga. App. 869, 872 (678 SE2d 571) (2009) (“Speculation that raises a mere conjecture or possibility is not sufficient to create even an inference of fact for consideration on summary judgment.”).

       In its third and fourth enumerations of error, Securitas asserts that the Plaintiffs failed to present sufficient evidence that any act or omission by Securitas was the proximate cause of Johnston’s actions or that Johnston’s actions were foreseeable in the absence of any prior substantially similar occurrence. We have addressed these arguments in Division 1, supra.

       We have addressed Doctors Hospital’s first and third enumerations of error in Division 1, supra.

        See Patterson v. County of Oneida, N.Y., 375 F3d 206, 229 (2d Cir. 2004); United States v. Robinson, 275 F3d 371, 383 (4th Cir. 2001).

       Athird method, acknowledgment of a known danger by a defendant, is not at issue in this appeal. See Wallace v. Boys Club of Albany, 211 Ga. App. 534, 536 (439 SE2d 746) (1993).


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A14A1877.
    FRED JONES ENTERPRISES, LLC v. WILLIAMS.
    (771 SE2d 163)
   Ray, Judge.

Dewey Williams filed a personal injury lawsuit against Fred Jones Enterprises, LLC (“FJE”) and obtained a default judgment against FJE after FJE failed to file any responsive pleadings. FJE filed a motion to set aside the default judgment, which was denied. FJE filed an extraordinary motion for new trial on the issue of damages and, three days later, filed a notice of appeal from the trial court’s denial of his motion to set aside. The trial court granted FJE’s extraordinary motion for new trial on the issue of damages, but then vacated that order on the grounds that it “lost jurisdiction” over the matter once the case was appealed to this Court. We granted FJE’s application for discretionary appeal in the instant case. Finding that the pendency of FJE’s appeal from denial of its motion to set aside the default judgment acted as a supersedeas depriving the trial court of the jurisdiction to consider FJE’s subsequent extraordinary motion for new trial, we affirm in part. However, the portion of the trial court’s order finding that “no further action is necessary or authorized by the court” is vacated, and the case is remanded to the trial court for findings not inconsistent with this case.

The facts in this case are undisputed, and the issue before us is whether the trial court erred in finding that it was without jurisdiction to rule upon FJE’s extraordinary motion for new trial during the pendency of an appeal and that there is nothing further for it to review in this case. “This question is one of law, which we review de novo.” (Citation and punctuation omitted.) Guthrie v. Wickes, 295 Ga. App. 892, 892 (673 SE2d 523) (2009).

The instant case involves the following procedural history. On April 29, 2011, Williams filed suit against FJE alleging that he sustained injuries when he fell over a package that FJE’s employee negligently placed in a dangerous location. FJE did not file an answer, and Williams filed a motion for default judgment. After a damages hearing at which FJE was not present, the trial court entered a default judgment in favor of Williams in the amount of $1,170,563 on February 1, 2012. On April 23, 2012, FJE filed a motion to set aside the default judgment under OCGA § 9-11-60, arguing that the complaint was legally insufficient, that the judgment was procured by fraud, that the pleadings and evidence presented did not support the award of damages, and that FJE did not receive timely notice of the judgment. On July 10, 2012, the trial court denied the motion to set aside.

On August 6, 2012, FJE filed an extraordinary motion for new trial on the issue of damages, claiming that the damages awarded were unsupported by Williams’ pleadings or by evidence presented at the damages hearing. Three days later, on August 9, 2012, FJE filed an application for discretionary appeal seeking review of the July 10, 2012, order denying its motion to set aside the judgment. On September 10, 2012, this Court granted FJE’s application after finding that FJE was entitled to a direct appeal. On November 13, 2012, the trial court granted FJE’s extraordinary motion for new trial as to damages and placed the case on the trial court’s nonjury calendar. On October 31, 2013, this Court affirmed without opinion (324 Ga. App. XXIV, Case No. A13A1140) the trial court’s denial of FJE’s motion to set aside the default judgment.

On November 1, 2013, Williams filed a motion in the trial court to vacate the November 2012 order granting FJE’s extraordinary motion for new trial on damages. On February 25, 2014, the trial court vacated the November 2012 order granting an extraordinary motion for new trial on damages, finding that FJE’s notice of appeal had deprived it of jurisdiction to rule on the motion. The order also concludes that “no further action is necessary or authorized by [the trial court].” On March 27, 2014, FJE filed this timely application for discretionary appeal from this order, which was granted by this Court.

1. Appellant contends that the trial court erred in finding that it had “lost jurisdiction” to rule on Appellant’s pending extraordinary motion for new trial once Appellant filed its first notice of appeal. We disagree.

“A notice of appeal divests the trial court of jurisdiction to supplement, amend, alter, or modify the judgment while the appeal of that judgment remains pending.” (Citations omitted.) McLeod v. Clements, 306 Ga. App. 355, 357 (2) (702 SE2d 638) (2010). See also OCGA § 5-6-46 (a). However, “matters which are independent of and distinct from the judgment on appeal remain within the jurisdiction of the trial court. The notice of appeal does not deprive the trial court of jurisdiction as to other matters in the same case not affecting the judgment on appeal.” (Citation and punctuation omitted.) Davis v. Harpagon Co., 281 Ga. 250, 253 (8) (637 SE2d 1) (2006). See also Avren v. Garten, 289 Ga. 186, 190 (6) (710 SE2d 130) (2011) (“The supersedeas that stems from the filing of an application or notice of appeal is limited in that it supercedes only the judgment appealed; it does not deprive the trial court of jurisdiction as to other matters in the same case not affecting the judgment on appeal”) (citations and punctuation omitted); In the Interest of A. R. B., 209 Ga. App. 324, 324 (1) (433 SE2d 411) (1993) (trial court divested of jurisdiction to act on pending reconsideration motion after application filed).

In the present case, FJE’s motion to set aside the default judgment argued that the grounds allowing for a motion to set aside a default judgment under OCGA § 9-11-60 (d) applied. However, FJE’s motion to set aside the default judgment also argued that the pleadings and evidence presented to the trial court at the default judgment hearing did not support the amount of damages awarded. FJE raised all of these arguments in the brief it presented to this Court on appeal from the denial of its motion to set aside the default judgment. See Tenant v. State, 229 Ga. App. 20, 21, n. 1 (492 SE2d 909) (1997) (this Court may take judicial notice of parties’ briefs filed in a prior appeal before this Court). FJE’s extraordinary motion for new trial also argued that the default judgment awarded to Williams was not supported by the pleadings and that the evidence presented at the damages hearing did not properly represent Williams’ lost past income, lost future income, future pain and suffering, and reasonable and necessary medical expenses.

Although FJE’s motion to set aside the default judgment challenged its liability, and its extraordinary motion for new trial as to damages challenged the trial court’s award of damages, we cannot say that the two motions raise issues that are “independent of and distinct from” each other, Davis, supra, because they both addressed the propriety of the same default judgment award. In fact, prior to filing its first notice of appeal, FJE filed an “emergency motion to stay trial” pending the resolution of the appeal. In that motion, FJE acknowledged that “the new trial on damages is not ‘independent and distinct’ from the pending appeal, but is directly related to and has the potential to impact the very judgment that is being appealed.” Compare Avren, supra at 190-191 (6) (supersedeas of application for discretionary review and notice of appeal regarding order and judgment dismissing ex-wife’s petitions for, inter alia, modification of child support, custody and visitation and granting ex-husband’s contempt petition, did not deprive trial court of jurisdiction to enter award of attorney fees in favor of ex-husband regarding contempt petition).

Accordingly, because the issues raised in FJE’s extraordinary motion for new trial were not “independent of and distinct from the questions involved in the appeal,” Bivins v. McDonald, 50 Ga. App. 299, 302 (4) (177 SE 829) (1934), we find that FJE’s filing of a notice of appeal acted as a supersedeas, depriving the trial court of jurisdiction to entertain a subsequent extraordinary motion for new trial on the issue of damages. Compare Cooper v. Spotts, 309 Ga. App. 361 (710 SE2d 159) (2011) (supersedeas does not prevent trial court from ruling on otherwise timely new trial motions, notwithstanding that a notice of appeal has been filed in the interim).

We affirm the portion of the trial court’s February 25,2014, order holding that it was without jurisdiction to rule on FJE’s extraordinary motion for new trial during the pendency of the first appeal.

2. FJE next contends that the trial court erred in ruling that “no further action is necessary or authorized by [the trial court]” once it found that it was without jurisdiction to grant FJE’s motion for extraordinary new trial during the pendency of FJE’s appeal. We agree.

Once an appeal ends, the supersedeas ends as well. Stewart v. Tricord, LLC, 296 Ga. App. 834, 838 (2) (c) (676 SE2d 229) (2009). “[A]n appellate court maintains jurisdiction over a case until it has issued the remittitur and the remittitur has been received and filed in the clerk’s office of the court below. Only then does the trial court regain jurisdiction to take further action with respect to the judgment appealed.” (Citation and punctuation omitted.) Massey v. Massey, 294 Ga. 163, 166 (3) (751 SE2d 330) (2013). Accordingly, although the trial court correctly asserted that it was without jurisdiction to rule upon FJE’s extraordinary motion for new trial during the pendency of the appeal, it was re-vested with jurisdiction to consider FJE’s extraordinary motion for new trial as to damages once this Court affirmed the denial of FJE’s motion to set aside the default judgment.

The law of the case rule did not prohibit the trial court from considering FJE’s extraordinary motion for new trial as to damages once it was re-vested with jurisdiction over the case. See OCGA § 9-11-60 (h) (“any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be”). On appeal from a trial court’s denial of a motion to set aside a judgment under OCGA § 9-11-60 (d), this Court is limited to a consideration of only whether the trial court abused its discretion in refusing to set aside the default judgment under the limited statutory criteria. See, e.g., Cheuvront v. Carter, 263 Ga. App. 837, 838 (589 SE2d 609) (2003). Whether or not the damages awarded were supported by the evidence presented to the trial court is not a statutory factor to be considered under OCGA § 9-11-60 (d). Accordingly, even though FJE included a superfluous argument that the damages awarded to Williams in the default judgment were unsupported by any evidence in its motion to set aside and in its brief on appeal from the denial of that motion does not mean that this Court considered such an argument. Thus, although the trial court correctly asserted that it was without jurisdiction to rule upon FJE’s extraordinary motion for new trial as to damages during the pendency of the appeal, it was re-vested with jurisdiction to consider the motion once this Court affirmed the denial of FJE’s motion to set aside the default judgment.

Decided March 24, 2015.

Locke Lord, Elizabeth J. Campbell, Alexandra M. Dishun, for appellant.

Smith & Jenkins, Wilson R. Smith, Bryant & Cook, Malcolm F. Bryant, Jr., Paul K. Cook, for appellee.

We find no merit in Williams’ argument that the February 25, 2014, order was a ruling on the merits of FJE’s extraordinary motion for new trial because the order stated that the trial court considered “the entire record in this case” when making its ruling. The trial court’s order clearly does not address the merits of FJE’s extraordinary motion, and the only explanation provided for the reversal relates to jurisdiction.

Accordingly, we vacate the portion of the trial court’s February 25, 2014, order to the extent that it found that “no further action is necessary or authorized!,]” and remand to the trial court for consideration of this case not inconsistent with this opinion.

3. In light of this Court’s rulings in Divisions 1 and 2, we need not address FJE’s remaining enumerations of error.

Judgment affirmed in part and vacated in part, and case remanded.

Andrews, P. J., and McFadden, J., concur.

       “[T]he first and essential step against any final judgment, including a default judgment, isa motion to set aside the judgment under O CG A § 9-11-60 (d). Only after that motion has been granted may a trial court consider whether to open default under OCGA § 9-11-55.” (Citation omitted.) The Pantry, Inc. v. Harris, 271 Ga. App. 346, 347 (2) (609 SE2d 692) (2005). Under OCGA § 9-11-60 (d), “[a] motion to set aside may be brought to set aside a judgment based upon . . . [fjraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or [a] nonamenable defect which appears upon the face of the record or pleadings.” OCGA § 9-11-60 (d) (2), (3).


author: McFadden, Judge.

text:
    A14A1893.
    DORSEY v. THE STATE.
    (771 SE2d 167)
   McFadden, Judge.

Markell Dorsey and four co-defendants were tried jointly before a jury for murder and other offenses related to the shooting death of Ron Strozier. After the trial, Dorsey was convicted of voluntary manslaughter, conspiracy to commit aggravated assault, conspiracy to commit criminal damage to property, possession of a firearm by a convicted felon, possession of a firearm during the commission of a felony and theft by receiving stolen property. Dorsey appeals, challenging the sufficiency of the evidence, the sentencing on both conspiracy counts, the denial of a motion to sever, the denial of a mistrial after impermissible character testimony, and the effectiveness of his trial counsel. However, there was sufficient evidence to support the verdict; any error in sentencing on the conspiracy counts was harmless; there was no abuse of discretion in the denial of a severance; the trial court properly struck the improper character testimony and gave a curative jury instruction, rather than granting a mistrial; and there has been no showing that trial counsel’s performance was both deficient and prejudicial. Accordingly, we affirm.

1. Sufficiency of the evidence.

Dorsey argues that there was insufficient evidence to support his voluntary manslaughter conviction because the state did not prove that any of the co-defendants shot Strozier. However, in a separate appeal, the Supreme Court of Georgia found sufficient evidence to affirm the convictions of co-defendant Michael Grissom, noting that “[t]he relevant events arose out of a feud between Grissom’s friend and co-defendant Markell Dorsey, and Dorsey’s associates, on the one side, and an individual known only as ‘D-Bone,’ and D-Bone’s associates, on the other.” Grissom v. State, 296 Ga. 406 (768 SE2d 494) (2015). Pursuant to Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the Court determined that the evidence, viewed in the light most favorable to the verdicts, showed the following facts.

[T]he feud commenced with a physical altercation on July 31, 2005, between Dorsey and D-Bone[, identified at trial by the name Darian Jackson,] over comments D-Bone made about a man referred to as “Tay-Tay.” Evidence was presented that Tay-Tay’s real name was Dontavious Pettway. In the initial altercation, Dorsey was roundly beaten and, in order to exact revenge, Dorsey and co-defendant Rico Sims traveled from the Chastain West apartment complex where they were staying to an apartment complex located next door, known as Buckingham Court, where D-Bone lived. Dorsey challenged D-Bone and his associates to another fight. Sims was wearing a bullet-proof vest and wielding an assault rifle. During this exchange, D-Bone and others, including Ron Strozier, disarmed Sims and took his weapon and vest. Later that day, D-Bone was overheard talking on the phone to someone who told D-Bone “y’all better tool up.”
The following day, August 1, Grissom, Dorsey, and Sims were at the Chastain West home of a friend where Grissom told William Edwards he planned on shooting up D-Bone’s car. A wooded vacant parcel of land separated the Chastain West complex from the Buckingham Court complex, and testimony established that trails ran through the woods and that the woods were known to be a place where drugs were sold and used. Later that evening, Grissom was seen leaving the woods moments after a loud shot rang out that sounded like a shotgun blast. In statements to police, Grissom and several of his co-defendants[, including Dorsey,] admitted they were in the woods around the time of the shotgun blast, but denied they were involved. Strozier’s body was located in the woods the morning of August 2. An autopsy determined he had died from wounds to his neck and torso caused by buckshot from a shotgun blast, and the testimony established that the window of time for Strozier’s death encompassed the time at which the shot was heard. A shotgun was recovered during the investigation of these events, and Grissom admitted to police that he had been in possession of the shotgun and stated he obtained it from his cousin Dontavious Pettway, but Grissom denied he had used it. Edwards, who had known Grissom for several years at the time of the shooting and was familiar with his voice, overheard Grissom on the phone with Sims the day after Strozier was shot to death, telling Sims he had “shot someone in the head.”
About an hour after the shotgun blast was heard, Grissom, armed with a .357 magnum handgun, traveled to Buckingham Court with Dorsey, Sims, and others in two separate cars, both of which had been stolen. A shootout between the two rival groups ensued, and Grissom admitted in his statement to police that he fired at least two shots from his handgun during this exchange. Grissom also admitted that after the car in which he was riding crashed into a fire hydrant, he dropped his handgun and fled the scene. Law enforcement later recovered the gun inside the crashed car. Christina Green, an eyewitness to the shootout, heard multiple gunshots and saw three or four individuals fleeing through the woods. Green ran across the street to avoid the gunfire.

Grissom, supra at 407-408.

In addition to the foregoing, the evidence showed that Dorsey was present when the plan to retaliate against D-Bone was made, that he was present when there were discussions about seeking out Strozier, that he admitted entering the woods on the night in question for the purpose of shooting at D-Bone and his truck, that he was in the woods with Grissom and others when Strozier was shot, that he fled from the scene of the shooting, and that he later abandoned the stolen car with the suspected murder weapon in it.

In arguing that the state failed to prove that any of the co-defendants shot Strozier, Dorsey points to inconsistencies in the evidence. But as the Supreme Court explained, “[r]esolving evidentiary conflicts and inconsistencies and assessing witness credibility are the province of the fact finder, not the appellate court.” Grissom, supra at 408 (1) (citation and punctuation omitted). In this case, “the evidence presented at trial, as summarized above, was sufficient to support the verdict.” Id.

2. Sentences on conspiracy counts.

Citing Braverman v. United States, 317 U. S. 49 (63 SCt 99, 87 LE 23) (1942), Dorsey contends that the trial court erred in sentencing him separately on the two conspiracy counts because the evidence only showed a single conspiracy. Indeed, “[u]nder principles enunciated in Braverman[, supra at 53], whether the object of a single agreement is to commit one or many crimes, it is in either case the agreement that constitutes the conspiracy, and if there is only one agreement there can be only one conspiracy. [Cit.]” Price v. State, 247 Ga. 58, 60(273 SE2d 854) (1981). The state counters that the evidence showed that there were two separate agreements, not just one, and thus Braverman is inapplicable. However, we need not resolve that issue because even if we assume error in the sentencing of Dorsey on both conspiracy counts, the error was harmless.

Our Supreme Court has adopted the rule of “cases exemplified by Stephens v. United States, 347 F2d 722 (4) (5th Cir. 1965) [which] hold that an improper conviction on multiple counts of a conspiracy indictment is harmless error where the defendant’s sentence is within legal limits for conviction of a single conspiracy.” Price, supra at 61, n. 5. Here, the trial court imposed a total sentence of ten years for the two conspiracy offenses, sentencing Dorsey to serve five years for conspiracy to commit aggravated assault with a deadly weapon and another five years for conspiracy to commit criminal damage to property in the first degree.

That sentence was within the legal limits for conviction of a single conspiracy.

... A person convicted of the offense of criminal conspiracy to commit a felony shall be punished by imprisonment for not less than one year nor more than one-half the maximum period of time for which he could have been sentenced if he had been convicted of the crime conspired to have been committed[.] . . .

OCGA § 16-4-8. The maximum period of time for which Dorsey could have been sentenced if he had been convicted of the aggravated assault that was the underlying subject of one of the conspiracy counts is twenty years. See former OCGA § 16-5-21 (b) (person convicted of aggravated assault shall be punished by imprisonment for not less than one nor more than twenty years). Thus, the maximum sentence for conspiracy to commit aggravated assault is one-half of that twenty years, or ten years. Because the total sentence imposed for both conspiracy offenses was ten years, the sentence was within the legal limits for a person convicted of a single conspiracy to commit aggravated assault, and therefore any error in sentencing Dorsey for both conspiracy charges was harmless. Price, supra.

3. Motion to sever.

Dorsey claims that the trial court erred in failing to sever his trial from that of Grissom because they presented antagonistic defenses and he was unable to fully present his statement to police which implicated Grissom as the shooter. The claim is without merit.

In a capital case in which the death penalty is not sought, a trial court’s decision not to sever the trials of co-indictees is reviewed for abuse of discretion, and the movant must make a clear showing that the joint trial was prejudicial and resulted in a denial of due process. The existence of antagonistic defenses alone is insufficient to require the severance of a joint trial.

Barge v. State, 294 Ga. 567, 570 (3) (755 SE2d 166) (2014) (citations and punctuation omitted).

While Dorsey claims he and Grissom presented antagonistic defenses, the trial court ruled otherwise. The trial judge noted that she had reviewed all of the co-defendants’ statements thoroughly and found no showing of antagonistic defenses. Indeed, at trial, Dorsey did not present a defense implicating Grissom or any of the other co-defendants, and instead asserted a defense that Strozier was a drug dealer and that several other individuals, including known drug users, could have committed the shooting.

Although Dorsey asserts in his brief that the redacted parts of his statement implicated Grissom as the shooter, he has not cited any portion of the record showing the exact statements that were redacted or any proffer of such evidence. Nevertheless, even if we assume that the redacted statements did implicate Grissom, such evidence would have merely been cumulative of other evidence in the record showing that Grissom was the shooter. Had Dorsey wanted to pursue a defense antagonistic to Grissom, we fail to see how he was precluded from doing so based on the evidence in the record. Moreover, the evidence against Dorsey implicated him as a party to the shooting committed by Grissom, so we fail to see how a defense by Dorsey implicating Grissom as the shooter would have benefitted him. Indeed, Dorsey’s trial counsel argued to the jury that the state was required, but had failed, to prove that one of the co-defendants intentionally killed Strozier and that Dorsey was a party to that crime. Under these circumstances, Dorsey has failed to carry his burden of making a clear showing that the joint trial was prejudicial and a denial of due process. Barge, supra. Consequently, we conclude that “the trial court did not abuse its discretion in denying [Dorsey’s] motion to sever.” Jones v. State, 277 Ga. App. 185, 188 (626 SE2d 142) (2006) (citation omitted).

4. Motion for a mistrial.

Dorsey complains that the trial court erred in denying his motion for a mistrial after a state’s witness gave impermissible character testimony by mentioning Dorsey’s involvement with drugs. We disagree.

While being questioned by attorneys for two of the co-defendants, the witness testified that Dorsey was good friends with an individual named Keyontae Mitchell, that Dorsey would do whatever Mitchell told him to do, and that she believed this about Dorsey because of things she had seen and heard. The prosecuting attorney followed up on this line of questioning by asking the witness what things she had seen and heard to make her believe this about Dorsey, and the witness responded: “We in the house one day. I guess whatever happened, whatever, whatever, I ain’t fixing to get into it. They got some drugs somewhere. He told them to go sell it.” Dorsey’s attorney immediately objected and moved for a mistrial. The trial court denied a mistrial, but sustained the objection, struck the testimony and instructed the jury not to consider it.

“Whether to declare a mistrial is a question committed to the discretion of the trial judge, and the denial of a mistrial is reversible error only if it appears that a mistrial was essential to preserve the defendant’s right to a fair trial.” McKibbins v. State, 293 Ga. 843, 848 (3) (750 SE2d 314) (2013) (citation and punctuation omitted). Here, Dorsey has made no showing that a mistrial was essential to preserve his right to a fair trial. On the contrary, the trial court preserved that right by taking immediate corrective action to strike the testimony and give a curative instruction to the jury. “Because the trial court acted immediately, ruled out the offensive testimony, and properly instructed the jury to disregard the statement, ... we find no abuse of discretion in denying the motion for mistrial. [Cit.]” McGee v. State, 267 Ga. 560, 565 (3) (480 SE2d 577) (1997) (holding that improper character testimony did not necessitate a mistrial).

5. Ineffective assistance of counsel.

Dorsey claims his trial counsel was ineffective in failing to object to the state’s alleged comment on his right not to testify and in requesting a jury instruction on prior consistent statements. To prevail on such claims, Dorsey must “show both that his counsel’s performance was professionally deficient and that but for counsel’s unprofessional conduct, there is a reasonable probability the outcome of the proceedings would have been different.” Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012) (citations and punctuation omitted). However, he has failed to make both showings.

(a) Failure to object to alleged comment on right to remain silent.

During his closing argument, the prosecutor cited the testimony of a witness who had seen the incident when D-Bone and others confronted Dorsey and Sims and took a bulletproof vest and gun from them. The prosecutor then stated, ‘You don’t hear Markell Dorsey or Rico Sims say that never happened. You don’t hear Rico Sims and Markell Dorsey say that [witness] is a liar, I was never near Washington Road on that day. Although that’s what they initially said to the police when they were interviewed.” Trial counsel did not object to this argument.

At the motion for new trial hearing, trial counsel testified that the reason she did not object to the argument was because she did not view it as a comment on the fact that Dorsey had not testified at trial, but instead believed it was proper argument based on the videotaped statement that Dorsey had given to police and which was in evidence, having been played for the jury. Dorsey has pointed to nothing that contradicts trial counsel’s view of the argument, and in fact the prosecutor specifically referenced the statement given to police during that argument.

Given that Dorsey’s statement was in evidence and that the state’s argument expressly referred to it, we find that trial counsel’s strategic decision not to raise what she viewed as a meritless objection was not deficient.

A decision by trial counsel not to object to statements in closing argument may fall within the ambit of trial strategy, and in the absence of evidence to the contrary, trial counsel’s actions are presumed to be strategic. Moreover, even assuming that trial counsel should have objected to the comment, [Dorsey] has not shown that but for counsel’s failure to obj ect [to this isolated comment], there was a reasonable probability that he would not have been convicted.

Decided March 24, 2015.

S. Cindy Wang, for appellant.

Sweet v. State, 278 Ga. 320, 325-326 (8) (602 SE2d 603) (2004) (citations omitted). Thus, this claim of ineffectiveness of trial counsel fails. Compare Cheeks v. State, 325 Ga. App. 367 (750 SE2d 753) (2013) (trial counsel ineffective in failing to object to state’s egregious and repeated questions and comments on defendant’s silence as evidence of guilt).

(b) Request to charge on prior consistent statements.

Citing Stephens v. State, 289 Ga. 758, 759 (1) (a) (716 SE2d 154) (2011), in which the Supreme Court of Georgia held that “an instruction on prior consistent statements should no longer be given except where the circumstances of an unusual case suggest that the jury may have the mistaken impression that it cannot consider a prior consistent statement as substantive evidence,” Dorsey argues that trial counsel was ineffective in requesting such a charge. However, the trial in this case was held in 2006, long before the Stephens decision and at a time when the pattern jury instructions included a charge on prior consistent statements. Id. at 758-759 (1) (a). Thus, the holding in Stephens is inapposite.

Nevertheless, the actual charge requested in this case did not follow the pattern charge of the time, which referred to a witness having given a statement before trial consistent with that witness’ own trial testimony. Stephens, supra at 758, 759. The requested charge in this case did not refer to such a single witness, but instead referred to the trial testimony of one witness being consistent with that of another witness. However, even assuming that trial counsel’s request of such a charge was deficient, Dorsey has not shown a reasonable probability that the outcome of the trial would have been different but for that deficiency. “Based upon the strength of the evidence presented against [Dorsey,] we conclude that [he] cannot meet his burden of demonstrating prejudice from his counsel’s request for an erroneous charge.” Bellamy v. State, 312 Ga. App. 899, 903 (3) (a) (720 SE2d 323) (2011) (finding no ineffective assistance where counsel requested jury charge on prior consistent statements).

Judgment affirmed.

Andrews, R J., and Ray, J., concur.

Paul L. Howard, Jr., District Attorney, Lori L. Canfield, Joshua D. Morrison, Assistant District Attorneys, for appellee.

       This provision, in effect when Dorsey was tried, is now codified at OCGA § 16-5-21 (c).


author: ANDREWS, Presiding Judge.

text:
    A14A2020.
    GOLDEN ISLES OUTDOOR, LLC v. THE LAMAR COMPANY, LLC.
    (771 SE2d 173)
   ANDREWS, Presiding Judge.

The Lamar Company, LLC (“Lamar”) filed an action in the Superior Court of Chatham County appealing a decision by the City of Savannah Zoning Board of Appeals (the “ZBA”), which, in response to a petition filed by Lamar’s outdoor advertising competitor, Golden Isles Outdoor, LLC (“Golden Isles”), invalidated a permit that allowed Lamar to convert an existing billboard into a digital billboard. In an order on the parties’ cross-motions for summary judgment, the trial court reversed the ZBA’s decision. We granted Golden Isles’ application for discretionary appeal, and Golden Isles now appeals, arguing that the trial court misinterpreted the digital billboard ordinance in the City of Savannah’s Code of Ordinances (the “Savannah Code”) when it determined that the ordinance does not prohibit digital billboards on collector roadways such as the one where the billboard at issue is located. We conclude that the trial court erred in its construction of the ordinance and therefore reverse.

This appeal presents a question of law concerning the proper interpretation of the Savannah Code, and we apply a de novo standard of review. City of Atlanta v. Hotels.com, 289 Ga. 323, 325 (1) (710 SE2d 766) (2011).

The record shows that Lamar owns a traditional poster billboard located at 322 Mall Boulevard in Savannah. On April 10, 2013, Lamar submitted an application to the Savannah Zoning Administrator for a permit to convert the Mall Boulevard billboard to a digital billboard. Prior thereto, Lamar’s competitor, Golden Isles, had submitted applications to convert two of its existing poster billboards to digital billboards. Permits for conversion of Golden Isles’ billboards could not be issued absent the Savannah City Council’s approval of a pending amendment of the Savannah Code. By the time the City Council approved the amendment, the Zoning Administrator already had approved Lamar’s April 10, 2013 application. Thereafter, one of Golden Isles’ two applications for a digital billboard permit was granted. The digital billboard ordinance in the Savannah Code, Savannah Code § 8-3112 (c) (5), provides that no more than three new digital billboards maybe authorized after October 7,2011. Savannah Code § 8-3112 (c) (5) e.10. Golden Isles submitted its two applications in hopes of obtaining the last two available permits for digital billboards, but due to the permit Lamar received for the Mall Boulevard site, Golden Isles received only one instead.

Golden Isles submitted a petition for an appeal to the ZBA challenging the validity of the permit for the Mall Boulevard location. Golden Isles argued that the permit was contrary to the digital billboard ordinance. That ordinance states, among other things, that digital billboards “shall be permitted only along four lan[e] or more arterial roadways as defined in subsection 8-3112 (1) herein.” Savannah Code § 8-3112 (c) (5) e.5. (the “arterial roadway restriction”). Golden Isles maintained that Mall Boulevard is a collector street.

After examining the language of Savannah Code § 8-3112 (1), which governs separate use signs generally, the ZBA concluded, in essence, that the arterial roadway restriction contains a drafting error. The ZBA noted that while the arterial roadway restriction refers to subsection 8-3112 (1) to define “four lan[e] or more arterial roadways,” that subsection does not reference a street classification map that defines roads as arterial or collector. The ZBA concluded that the correct map reference should have been the street classification map referenced in Savannah Code § 3025 (g), which designates Mall Boulevard as a collector street. Based on the foregoing, the ZBA agreed with Golden Isles that the permit for the Mall Boulevard location was issued in error and should be rescinded.

In Lamar’s action appealing the ZBA’s determination, the superior court reached a contrary conclusion, reasoning that the term “four-lane arterial roadways” is defined by reference to the language in Savannah Code § 8-3112 (1) (1) stating that separate use signs “shall only be permitted on a site which abuts a street classified as a collector or arterial roadway.” The superior court concluded that the term “four-lane arterial roadway” in the arterial roadway restriction encompasses four-lane arterial and collector roads.

1. In its single enumeration of error, Golden Isles argues that the trial court erred in its construction of the arterial roadway restriction by, among other things, failing to construe it in a manner that harmonizes it with the zoning provisions of the Savannah Code generally and that effectuates the legislative intent reflected in the legislative history of the digital billboard ordinance.

In considering the meaning of a municipal ordinance, we apply the same well-settled principles that guide our construction of statutes. See Daniel Corp. v. Reed, 291 Ga. 596, 597 (732 SE2d 61) (2012). The “cardinal rule” in construing a legislative act is to ascertain and effectuate the legislative intent and purpose. Carringer v. Rodgers, 276 Ga. 359, 363 (578 SE2d 841) (2003). “Legislative intent is determined from consideration of the entire [ordinance]; thus we consider a provision [of an ordinance] not in isolation, but in the context of the other [ordinance] provisions of which it is a part.” (Citation and punctuation omitted.) Abdel-Samed v. Dailey, 294 Ga. 758, 763 (2) (755 SE2d 805) (2014). In addition, if the meaning of an ordinance is doubtful, we may look to legislative history to ascertain legislative intent. Sikes v. State, 268 Ga. 19, 21 (2) (485 SE2d 206) (1997).

To determine the legislative intent underlying the arterial roadway restriction, we first examine its larger legislative context. As set forth above, the arterial roadway restriction states that digital billboards “shall be permitted only along four lan[e] or more arterial roadways as defined in subsection 8-3112 (1) herein.” Savannah Code § 8-3112 (c) (5) e.5. This restriction appears in Article E of Chapter Three of Part Eight of the Savannah Code. Chapter Three contains the Savannah Code’s zoning ordinances generally while Article E regulates signs in particular. Savannah Code § 8-3002 supplies definitions applicable throughout the zoning ordinances. “Road,” is defined as “[a]ny street, highway, avenue, lane, marginal access street, service drive, alley, bridge, viaduct or any segment thereof.” Section 8-3002 includes separate definitions for collector road, major arterial road, and secondary arterial road, all of which state: “See Road classification map of the city.” The definitions for collector road and major and secondary arterial roads do not specify a particular map number, but the parties are in agreement that “Street Classification Map No. 1 of Chatham County,” which is referenced and incorporated in Savannah Code § 8-3025 (g), designates which streets fall into these classifications. Mall Boulevard, the billboard site at issue in this case, is designated as a collector street on Street Classification Map No. 1. The definitions, Street Classification Map No. 1, and the other zoning ordinances made a part of the record here shed little light on what distinguishes a collector from an arterial street or road. It is clear, however, that as a general matter, collector and arterial streets are separate and distinct classifications, and a street cannot be classified as both at the same time. As set forth in the margin, the sign ordinances in Article E repeatedly refer to and distinguish between arterial and collector streets. None of the foregoing provisions include any specific cross-reference to a definition or map, but Lamar does not contend that there is any uncertainty regarding the meaning of those terms as used generally in the sign ordinances or dispute that the terms are defined by reference to Street Classification Map No. 1.

Turning to the legislative history of the digital billboard ordinance, the legislative history included in the record reflects that at a City Council meeting on November 20, 2007, a representative of the Metropolitan Planning Commission spoke in favor of an amendment to the Savannah Code allowing digital billboards and explained, among other things, that digital billboards “can only be placed along four-lane[ ] or more arterial streets.” At the same meeting, Lamar’s attorney reiterated that the proposed amendment and existing zoning ordinances would impose numerous restrictions on the use of digital billboards and represented that “[t]his has got to be on a four lane or major arterial.”

Notwithstanding the foregoing, Lamar posits that “arterial roadway” is not defined by Street Classification Map No. 1 for purposes of the arterial roadway restriction because the arterial roadway restriction contains a “unique definitional cross-reference” to Savannah Code § 8-3112 (1). Although Savannah Code § 8-3112 (1) contains 13 detailed subsections regulating separate use signs, Lamar maintains that the cross-reference in the arterial roadway restriction establishes unequivocally that the Savannah City Council intended “arterial roadway” to be defined by the second sentence in § 8-3112 (1) (1), which states: “[separate use] signs shall only be permitted on a site which abuts a street classified as a collector or arterial roadway.” Lamar argues, and the trial court agreed, that the plain and unambiguous meaning of the arterial roadway restriction is that arterial roadways include arterial and collector streets. This construction cannot withstand scrutiny.

One common meaning of the verb “define,” as used in the arterial roadway restriction, is “[t]o state the precise meaning of (a word or sense of a word, for example).” TheFreeDictionary.com, http://www. thefreedictionary.com/define (citing American Heritage Dictionary of the English Language (5th ed. 2011)) (last visited March 16, 2015). Neither the second sentence of § 8-3112 (1) (1) nor any of the other provisions of § 8-3112 (1) purport to define the term “arterial roadway” in this sense. Savannah Code § 8-3112 (1) (1) does not state the precise meaning of arterial roadway or any term; it merely states where separate use signs in general may be located. To treat the second sentence of § 8-3112 (1) (1) as establishing a new and different definition of an arterial road, moreover, would collapse a distinction otherwise carefully drawn throughout the sign ordinances. In construing an ordinance, courts must “consider the results and consequences of any proposed construction and not so construe [an ordinance] as will result in unreasonable or absurd consequences not contemplated by the legislature.” (Citation and punctuation omitted.) Staley v. State, 284 Ga. 873-874 (672 SE2d 615) (2009). Further, in construing an ordinance, we “reconcile, if possible, any potential conflicts between different sections of the same [ordinance], so as to make them consistent and harmonious.” (Punctuation and footnote omitted.) Sikes, supra, 268 Ga. at 21 (2). We cannot reasonably conclude that the City Council intended to undermine or undo the otherwise consistent distinction between arterial and collector streets by including a general cross-reference to Savannah Code § 8-3112 (1) in the arterial roadway restriction.

In addition, “courts should construe [an ordinance] to give sensible and intelligent effect to all of its provisions and should refrain, whenever possible, from construing [an ordinance] in a way that renders any part of it meaningless.” (Punctuation and footnote omitted.) Sikes, supra, 268 Ga. at 21 (2). Under Lamar’s construction of the arterial roadway restriction, the term “arterial” amounts to surplusage, because the City Council would have achieved the same result had it left “arterial” out altogether: digital billboards — which are a type of separate use sign, see footnote 3, supra — would be permitted on any collector or arterial road with four or more lanes.

We agree with Golden Isles that we may achieve a more harmonious and reasonable construction of the arterial roadway restriction by considering alternative meanings of “define” for purposes of the restriction. Its definitions include “[t]o specify distinctly,” TheFreeDictionary.com, http://www.thefreedictionary.com/define (citing American Heritage Dictionary of the English Language (5th ed. 2011)) (last visited March 16, 2015), and “to fix with precision; specify.” Id. (citing Collins English Dictionary (2003)). Viewed in this light, the arterial roadway restriction’s cross-reference may be read to clarify that the placement of digital billboards on arterial roadways (as defined in Street Classification Map No. 1) must comply with the terms and conditions in § 8-3112 (1) generally. For example, pursuant to Savannah Code § 8-3112 (1) (3) and (4), such signs could only be located within 660 feet of the right-of-way of a protected or restricted roadway if “such sign is oriented toward the travel way of a parallel or nearby... arterial street and the sign, including the sign standard, is blocked from view from the travel way of the protected [or restricted] roadway by a permanent structure.” Such signs are also subject to specific copy size and height requirements. See Savannah Code § 8-3112 (1) (7) and (9) b. We conclude that such a construction of the arterial roadway restriction best effectuates the legislative intent and harmonizes the provisions of the zoning ordinances. We are mindful that zoning ordinances “are to be strictly construed in favor of the property owner and any ambiguous language therein is to be resolved in favor of the free use of property”; nevertheless, they “must be given a reasonable construction.” Bo Fancy Productions v. Rabun County Bd. of Commrs., 267 Ga. 341, 343 (1) (b) (478 SE2d 373) (1996). For reasons discussed above, we cannot accept as reasonable an interpretation of the arterial roadway restriction that reads “arterial roadway” to mean arterial and collector streets. See Rock v. Head, 254 Ga. App. 382, 386 (2) (562 SE2d 768) (2002) (agreeing with trial court’s construction of voting provisions of zoning statute rather than construction advanced by party applying to rezone property because it was “more reasonable and consistent with the legislature’s intent”).

Decided March 24, 2015

McCorkle & Johnson, David H. Johnson, Tawny D. Mack, for appellant.

Hunter, Maclean, Exley & Dunn, Nicholas J. Laybourn, Allan C. Galis, for appellee.

2. Lamar maintains that construing the arterial roadway restriction to prohibit digital billboards on collector roads violates its due process rights under the United States and Georgia Constitutions. We are unable to reach this issue.

Our Supreme Court has exclusive appellate jurisdiction over cases in which the constitutionality of a law, ordinance, or constitutional provision has been drawn into question, and will not rule on a constitutional question unless it clearly appears in the record that the trial court distinctly ruled on the point.

(Citation and punctuation omitted.) Mays v. Ellis, 283 Ga. App. 195, 199 (3) (641 SE2d 201) (2007). The trial court did not do so here.

Based on the foregoing, we conclude that the trial court erred in its construction of the arterial roadway restriction and that its order granting Lamar’s motion for summary judgment and denying Golden Isles’ motion must be reversed.

Judgment reversed.

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

       Golden Isles was not named as a defendant in Lamar’s superior court action; however, a consent order was entered permitting Golden Isles to intervene. The defendants in the superior court action — the Mayor and Aldermen of the City of Savannah, the Zoning Administrator, and the members of the ZBA— are not participating in this appeal.

       The Savannah Code formerly provided that digital billboards were only authorized if an applicant agreed to remove other signs that did not conform with the current code. Golden Isles owned no such signs.

       A separate use sign is “[a]n off-premises sign which advertises or directs attention to businesses, products, services or establishments not usually conducted on the premises on which the sign is located.” Savannah Code § 8-3002. It is undisputed that billboards, digital and traditional, constitute separate use signs.

       We note that Savannah Code § 8-3002 does not define “roadway,” which appears in the arterial roadway restriction and Savannah Code § 8-3112 (1); however, roadway is generally synonymous with the term “road.” See TheFreeDictionary.com, http://www.thefreedictionary. com/roadway (defining “roadway” as “A road, especially the part over which vehicles travel.”) (citing American Heritage Dictionary of the English Language (5th ed. 2011)) (last visited March 16, 2015).

       Savannah Code § 8-3112 (c) (6) (ii) 5. (permitting certain temporary signs “only along an arterial or collector street... if no residentially zoned property or dwelling is located within 75 feet of such sign”); § 8-3112 (c) (6) (iii) 3. (public event temporary signs allowed in certain locations subject to certain conditions, including that “[t]he sign shall be located along a collector or arterial street”); § 8-3112 (d) (3) (uses in certain districts “which front a collector or arterial street shall be permitted one stationary freestanding announcement sign per street frontage”); § 8-3112 (k) (3) a. (chart setting forth maximum copy area for directory signs fronting arterial and collector streets); § 8-3112 (1) (3) (separate use signs permitted within 660 feet of right-of-way of protected highway if “such sign is oriented toward the travel way of a parallel or nearby collector or arterial street...”); § 8-3112 (1) (4) (separate use signs permitted within 660 feet of right-of-way of restricted roadway “where such sign is oriented toward the travel way of a parallel or nearby collector or arterial street... ”); § 8-3112 (1) (7) (chart setting forth maximum copy area for separate use signs fronting arterial and collector streets); § 8-3112 (1) (9) b. (“The upper edge of separate use sign panels located along collector or arterial streets or highways... shall be no more than 50 feet above the grade at the base of the sign”); § 8-3112 (s) (5) (special announcement sign “must front onto an arterial street”); § 8-3121 B. (7) (e) 5. (special announcement sign in historic sign district “must front onto an arterial street”).


text:
    A14A2188.
    CHAVEZ-ORTEGA v. THE STATE.
    (771 SE2d 179)
   Ray, Judge.

Jonathan Chavez-Ortega has been charged by accusation with driving under the influence of alcohol, reckless driving, and racing. We granted Chavez-Ortega’s application for interlocutory review of an order denying a motion to suppress his custodial statements. Because we find that Chavez-Ortega was in custody when he invoked his right to remain silent, but that the police nonetheless continued to question him which led to the incriminating evidence which he seeks to suppress, we reverse the trial court’s denial of Chavez-Ortega’s motion to suppress.

Three fundamental principles must be followed when conducting an appellate review of a motion to suppress. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and [her] findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.... Where the issue turns on the question of whether a trial court committed an error of law in granting a motion to suppress, we apply a de novo standard of review.

(Citations and punctuation omitted.) Williams v. State, 329 Ga. App. 650, 650 (766 SE2d 82) (2014).

The evidence adduced at the suppression hearing shows that Officer Archevald and Officer Denson, with the Cobb County Police Department, observed two vehicles make a turn at a high rate of speed on wet road conditions. Both officers heard tires squealing, and the cars appeared to be racing as they continued to accelerate along Barnes Mill Road. The officers activated their sirens and emergency lights to initiate a traffic stop as both cars turned onto Ven Villa Drive, but only the car driven by Gerald Sanders stopped. The second car continued down the road. Chavez-Ortega was later seen walking back to the traffic stop location. When an officer approached Chavez-Ortega, he noticed that Chavez-Ortega smelled of alcohol and had watery, bloodshot eyes.

Officer Taylor responded to the scene as backup. He briefly spoke to Chavez-Ortega and asked him where he was coming from. When Chavez-Ortega stated that he was walking from a friend’s house, but could not provide details as to where the friend lived, Officer Taylor detained him in handcuffs and placed him in the back of the patrol car while the other two officers were finishing the investigation of Sanders. The State played a video recording of the interior of the patrol car during the suppression hearing. The visual field of the camera was trained toward the front of the patrol car, but the audio portion is audible. Officer Taylor informed Chavez-Ortega that he was “not arrested yet” and that he would be “free to go” if they did not find his car nearby. Officer Denson then questioned Chavez-Ortega about whether he had been drinking, where he had been that evening, and if he had been driving the other car. Chavez-Ortega admitted to drinking at a buddy’s house nearby, but stated that he had not been driving. Officer Taylor acknowledged at the suppression hearing that Chavez-Ortega was “detained” and not free to leave once he was handcuffed and placed in the patrol car. Officer Denson then arrived and questioned Chavez-Ortega about where he lived and how old he was. Chavez-Ortega quickly stated that he did not want to talk, and Officer Denson advised him of his Miranda rights.

The video recording shows that at the conclusion of the Miranda warning, Chavez-Ortega can be heard to tell the officer “I don’t want to talk to you.” It appears from the transcript that the trial court could not understand this statement during the suppression hearing due to the poor quality of the audio recording.

Officers continued to question Chavez-Ortega about where his car was located. Chavez-Ortega again stated that he had not been driving and that he was coming from a friend’s house, but admitted that he was drunk. Once taken outside the patrol car, Chavez-Ortega again stated that he did not want to talk.

During the course of the investigation, Sergeant Paul Rushing, who also responded as backup, located Chavez-Ortega’s vehicle up the street. He testified that the driver’s floor mat was wet, but that the passenger’s side was only dirty, indicating that only one person had been in that car.

After indictment, Chavez-Ortega filed a motion to suppress the statements he had made before and after he was issued a Miranda warning. The trial court denied the motion, finding, inter alia, that Chavez-Ortega was not in custody during his questioning, that Officer Denson recited the Miranda warning to Chavez-Ortega “as a safety precaution[,]” and that his statements were made voluntarily and without coercion.

1. Chavez-Ortega argues that the trial court erroneously determined that he was not “in custody” when he made statements to officers prior to receiving the Miranda warnings and that the trial court erred in denying his motion to suppress those statements. We agree.

“Miranda warnings are required when a person is interviewed by an investigating officer while in custody.” (Citation omitted.) Lengsfeld v. State, 324 Ga. App. 775, 781 (1) (b) (751 SE2d 566) (2013). When

determining whether a suspect was in custody for Miranda purposes, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.

(Citation and punctuation omitted.) Teele v. State, 319 Ga. App. 448, 453 (2) (a) (738 SE2d 277) (2012). Whether a suspect is in custody “does not depend upon the subjective views harbored by either the interrogating officers or the person being questioned. Instead, the only relevant inquiry is how a reasonable person in the suspect’s position would have understood the situation.” (Citations and punctuation omitted.) Id. “A reasonable person is one neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.” (Punctuation and footnote omitted.) State v. Mosley, 321 Ga. App. 236, 238 (739 SE2d 106) (2013).

Here, Officer Taylor approached Chavez-Ortega as soon as he saw him walking down the road and, after questioning Chavez-Ortega about where he was coming from, placed him in handcuffs and put him in the back of the police cruiser. At the suppression hearing, officers even admitted that Chavez-Ortega was “detained” and “basically taken into custody,” and was not free to leave when he was in the police cruiser. Although Officer Taylor informed Chavez-Ortega that he was “not arrested yet[,]” we fail to see how a reasonable person in Chavez-Ortega’s position would not have considered himself to be under arrest, given that he was handcuffed, placed in the back of a patrol car and informed that officers were searching for his vehicle. See, e.g., Teele, supra at 453 (2) (a) (defendant was in custody for Miranda purposes when she was approached by officers at gunpoint, ordered to lie on the ground, handcuffed and placed in the back seat of a marked patrol car); State v. Kendrick, 309 Ga. App. 870, 871-872 (711 SE2d 420) (2011) (State did not contest that defendant was “in custody” for Miranda purposes once he was handcuffed and confined in the back seat of a police cruiser); Mayberry v. State, 267 Ga. App. 620, 622 (600 SE2d 703) (2004) (defendant’s statement was made in custodial circumstances when defendant’s car was surrounded by police cruisers, he was handcuffed to an ambulance gurney while officers accompanied him to the hospital, and he was later handcuffed to a stretcher in the hospital). Compare Harper v. State, 243 Ga. App. 705, 706 (1) (534 SE2d 157) (2000) (although suspect had been detained pursuant to a traffic stop and was suspected for DUI, he was not in custody for Miranda purposes when he was allowed to walk around, was not placed in the back of a police car and was not handcuffed); Campbell v. State, 255 Ga. App. 502, 504-505 (1) (a) (565 SE2d 834) (2002) (defendant was not in custody for Miranda purposes when he was briefly detained in the back of a patrol car and officers asked if there were drugs in his car when an audio recording of the detention revealed that the defendant believed that the investigation would result in his release and that he would soon regain freedom of movement).

Officers conducting an ordinary traffic stop or arriving at the scene of suspected criminal activity may conduct a “ ‘general on-the-scene investigation,’ including making inquiries solely to determine whether there currently is any danger to them or other persons.” (Citations omitted.) State v. Wintker, 223 Ga. App. 65, 67 (476 SE2d 835) (1996). These inquiries may even require them to temporarily detain someone attempting to leave before the preliminary investigation is completed, and such inquiries and detention “do not trigger the requirements of Miranda, unless the questioning is aimed at obtaining information to establish a suspect’s guilt.” (Citations and punctuation omitted.) Id. Accord Campbell, supra at 505-506 (1) (b) (briefly placing a detainee in the back of a patrol car in order to further a legitimate investigation does not constitute “custody” for Miranda purposes). Here, however, the officers’ inquiries went beyond a general on-the-scene investigation. The questions posed by officers asking Chavez-Ortega where he had been, if he had been drinking, and if he had been driving the other speeding car, were “clearly aimed at obtaining information to establish [his] guilt.” (Citation and punctuation omitted.) Wintker, supra at 68-69. Officer Taylor’s question to Chavez-Ortega if he was the driver of the other car is clearly directed at eliciting information to establish guilt. See id. (although told she was not under arrest, suspect was in custody for Miranda purposes when she was separated from other passengers, confined to the back of a locked patrol car, observed a police dog and his handler come to the scene and was questioned about matters aimed at establishing her guilt).

Accordingly, we find that the trial court erred in finding that statements Chavez-Ortega made to officers were made in noncustodial circumstances. Such statements are inadmissible and must be excluded at trial. See McDougal v. State, 277 Ga. 493, 498 (1) (A) (591 SE2d 788) (2004).

2. Chavez-Ortega next asserts that the trial court erred in denying his motion to suppress the statements he made to Officer Denson after he had been read his Miranda rights. We agree.

“An arrested person has the constitutional right to remain silent, but he must clearly assert his desire to remain silent to exercise that right. Police must honor an arrested person’s right to remain silent if the person clearly and unambiguously states that he wants to end questioning.” (Citations omitted.) Ridley v. State, 290 Ga. 798, 802 (4) (725 SE2d 223) (2012).

Decided March 24, 2015.

Kilgore & Rodriguez, H. Maddox Kilgore, for appellant.

Barry E. Morgan, Solicitor-General, Michael D. Deariso, Assistant Solicitor-General, for appellee.

Here, our review of the audio portion of Chavez-Ortega’s interrogation reveals that he clearly informed Officer Denson that he did not wish to speak to him prior to being read his Miranda rights, and that he stated that he did not want to talk to the officers immediately after being informed of his Miranda rights.

It is clear that the statements made by Chavez-Ortega after being read his Miranda rights resulted from direct interrogation by the officer, and were not the spontaneous and unsolicited statements of a person who was anxious to explain. Directly after reading the Miranda warning, and after Chavez-Ortega had twice informed the officer that he did not wish to speak to him, Officer Denson began to ask Chavez-Ortega questions. However, after Chavez-Ortega made these unequivocal assertions of his right to remain silent, all questioning of him should have ceased. Green v. State, 275 Ga. 569, 571-572 (2) (570 SE2d 207) (2002). Indeed, “[a] person being subjected to custodial interrogation may at any time express his or her desire to remain silent and, thereby, end the interrogation. Any exercise of this right to silence must be ‘scrupulously honored.’ ” (Punctuation and footnote omitted.) Id. at 571-572 (2). Instead of honoring Chavez-Ortega’s right to remain silent, Officer Denson continued to question him. Accordingly, any responses by Chavez-Ortega after he stated his wish to remain silent should have been suppressed at trial. See Webb v. State, 284 Ga. 122, 125 (3) (663 SE2d 690) (2008).

Judgment reversed.

Andrews, P. J., and McFadden, J., concur.

       We again note that it appears that, due to the poor quality of the recording, the trial court was unable to hear Chavez-Ortega’s post-Miranda statement that he did not wish to speak with the officer. In reviewing the videotaped interview, however, this Court owes no deference to the trial court’s findings of fact “because it was not the subject of testimony requiring the trial court’s weighing of credibility or resolving of conflicts in the evidence.” (Citations omitted.) Green v. State, 275 Ga. 569, 573 (2), n. 11 (570 SE2d 207) (2002). Accord Lyons v. State, 244 Ga. App. 658, 661-662 (1) (535 SE2d 841) (2000).