text:
    A13A0652.
    TYRE v. THE STATE.
    (747 SE2d 106)
   Ray, Judge.

After a jury trial, Arthur Tyre was convicted of rape, aggravated assault with intent to rape, armed robbery, and possession of a knife during the commission of a felony. He appeals from the denial of his motion for new trial, asserting the following enumerations: that the trial court erred in (1) denying his Batson motion; (2) overruling his challenge to the array; (3) admitting similar transaction testimony; and (4) denying his motions to suppress. Finding no error, we affirm.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence adduced at trial shows that the victim in this case went with a friend on April 30,2008, to Club Wax in Fulton County because they were seeking work as dancers there. The victim had worked as a prostitute in the past. While she was in the parking lot of Club Wax, Tyre pulled up to her in a silver Dodge Durango with custom rims and televisions in the back, and they agreed that Tyre would pay the victim $50 to engage in oral sex and sexual intercourse with him.

The victim got into lyre’s vehicle, and when she asked where he was driving, lyre revealed a large kitchen knife with gray tape around it and told her to “shut up.” Tyre then drove to the parking lot of a warehouse. After parking, Tyre took the victim’s cell phones and instructed her to climb into the backseat of the vehicle and to remove her pants, lyre then placed handcuffs on the victim, held a knife to her while she performed oral sex upon him, and then had intercourse with her. The victim testified that she did not consent to engage in intercourse. Tyre then exited the car, used a paper towel to cover his license plate, instructed the victim to get out of the car, and left without paying her. Still handcuffed, the victim ran to a nearby Waffle House where she called her friend, and they drove to Grady Memorial Hospital. A rape kit was performed at the hospital. Later, the victim identified Tyre from a photographic lineup. After the victim identified Tyre, police obtained a warrant for his arrest.

On May 4,2008, the victim flagged down a police officer when she saw Tyre and his Dodge Durango at a gas station on Fulton Industrial Boulevard, near Club Wax. Tyre was arrested, and his car was impounded. On May 5, 2008, police obtained a warrant to search the vehicle, which revealed that the car had inside several “flip-type television[s],” condom wrappers, and a roll of paper towels. A large knife and a pair of handcuffs were found hidden inside the air conditioner registers.

K. L. testified at trial as a similar transaction witness. K. L. testified that on February 8,2008, a few months before Tyre assaulted the victim, K. L. was on her way home from work when a silver Dodge Durango pulled up alongside her; the driver, Tyre, asked if she could give him directions to Club Wax. K. L. was giving directions to lyre when she noticed him pointing a small pistol at her. Tyre then instructed her to get into the back seat of the vehicle. Tyre handcuffed K. L., placed duct tape over her mouth, placed a black shirt over her head, and strapped her in with the seat belt. Tyre then began driving the Durango, and while traveling she heard him call someone on his cell phone and ask “have your mom left yet? ... I got one. ... I got somebody.” After the vehicle stopped at a house, Tyre searched her purse, drove to a nearby ATM, withdrew $500 from her account, and threatened to shoot her. Once they returned to the house, Tyre and another man had oral sex and sexual intercourse with her against her will. Tyre then dropped her off at a Dairy Queen. K. L. called the police and went to Grady Memorial Hospital, where a rape kit was performed.

Approximately eight days later, K. L. saw the silver Dodge Durango at a Shell Station on Fulton Industrial Boulevard, memorized the tag number, and called the police. After detectives obtained a warrant for Tyre’s arrest, a BOLO was put out on his car. On March 3, 2008, an officer stopped Tyre’s car pursuant to an outstanding arrest warrant, removed Tyre from the car, and placed him under arrest in the back of his patrol car. The Dodge Durango was impounded, and an inventory search was conducted which revealed an airsoft pistol and handcuffs under the rear passenger seat, and a roll of gray duct tape.

Tyre testified at trial that the sexual acts he performed with the victim and K. L. were consensual commercial transactions and that the victim became angry when he would not pay more than the agreed upon price. He admitted that he took money from K. L.

Viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Tyre guilty beyond a reasonable doubt of rape, aggravated assault with intent to rape, armed robbery, and possession of a knife during the commission of a crime. See Jackson, supra. See also OCGA §§ 16-6-1 (rape), 16-5-21 (aggravated assault with intent to rape), 16-8-41 (armed robbery), and 16-11-106 (possession of a knife during the commission of a felony). Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) (“It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.”) (Citation and punctuation omitted).

1. Tyre first contends that the trial court erred in finding that the prosecution did not violate Batson v. Kentucky, 476 U. S. 79 (106 SCt 1712, 90 LE2d 69) (1986) when it used four peremptory strikes to remove black jurors and by denying his motion for new trial based on the Batson challenge. For the reasons that follow, we affirm.

A trial court

employ[s] a three-step analysis in addressing a defendant’s Batson challenge. First, the opponent of a peremptory challenge must make a prima facie showing of racial discrimination. Then, the burden shifts to the proponent of the strike to provide a race-neutral reason for the strike. The trial court then decides whether the opponent of the strike has proven discriminatory intent.

(Punctuation and footnotes omitted.) Cowan v. State, 279 Ga. App. 532, 534 (2) (631 SE2d 760) (2006). Unless the trial court’s decision was clearly erroneous, we shall not disturb the trial court’s ruling. See id.

The record reveals that Tyre is a black male, and that out of 60 potential jurors, 16 were black. The State used a total of seven of its nine allotted peremptory strikes, and four of those seven were used against a black person.

Even assuming this indicates a prima facie case of purposeful discrimination, the record in this case supports the trial court’s finding that the reasons offered for the State’s strikes were race-neutral and not pretextual. See Hernandez v. New York, 500 U. S. 352, 360 (II) (B) (111 SCt 1859, 114 LE2d 395) (1991) (plurality opinion) (“Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.”). In one instance, a prospective black juror was struck after she testified that her nephew had been convicted of murder. “Prior convictions or arrest histories of a family member are a sufficiently race neutral reason to exercise a peremptory strike.” (Citation omitted.) Henry v. State, 265 Ga. 732, 734 (2) (462 SE2d 737) (1995). Another prospective black juror was struck after he testified that he had previous bad experiences with law enforcement and that he believed that minorities were treated unfairly by the criminal justice system. Yet another prospective juror was struck after he testified that both he and his brother had been treated unfairly by police and the criminal justice system. This Court has held that a sufficiently neutral reason to justify a peremptory strike is available when a prospective juror has had a prior negative experience with law enforcement, or indicates that the juror may distrust the police. See Crowder v. State, 268 Ga. 517, 519 (4) (491 SE2d 323) (1997); Dennis v. State, 238 Ga. App. 343, 346 (5) (a) (518 SE2d 745) (1999). The final peremptory strike was used against a prospective black juror who testified that she had a friend who had been charged with murder and another who had been a victim of sexual assault. The State explained that it struck this prospective juror based upon these acquaintances and because her bag had the phrase “Jesus is the final answer” written on it, which indicated that she could be inclined to avoid judging others. Our Supreme Court has held that a strong religious point of view is a valid race-neutral reason for striking a juror. See Berry v. State, 268 Ga. 437, 439 (2) (490 SE2d 389) (1997).

Because the State offered racially-neutral reasons for its strikes and Tyre failed to establish that the reasons given were pretexts for racial discrimination, we conclude that the trial court was authorized to find there was no Batson violation.

2. Tyre next argues that the trial court erred in denying his challenge to the array of the jury panels. He argues that there was a disparity between the percentage of black persons in the array sent to the courtroom for voir dire purposes and the percentage of black persons in the community. Finding no error, we affirm.

First, we note that “it is the pool of jurors from which the jury sent to be voir dired is drawn that must be representative of the community, not the individual panel sent to a courtroom for voir dire purposes.” Prim v. State, 237 Ga. App. 679, 680 (1) (515 SE2d 425) (1999). “[T]he jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” (Citations and punctuation omitted; emphasis supplied.) Avery v. State, 174 Ga. App. 116, 117 (1) (329 SE2d276) (1985). In this case, Tyre’s complaint was centered solely on the compositions of the single jury panel subj ect to voir dire in his particular case. Such a complaint is defective. Accord Lane v. State, 239 Ga. App. 230, 230 (2) (b) (520 SE2d 705) (1999) (“[T]he Constitution does not guarantee that the jury impaneled in a particular case will be a representative cross-section of the community. The correct inquiry concerns the procedures for compiling the jury lists and not just the composition of a particular jury.” (citations omitted)).

3. There was no abuse by the trial court in allowing the similar transaction evidence testimony of K. L. to be presented to the jury. After conducting a hearing in full compliance with the mandate of Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), the trial court found that the State had satisfied its burden in showing the following: (1) that the similar transaction sought to be introduced was perpetrated by Tyre; (2) that a sufficient connection existed between the acts alleged in the indictment and the transactions proffered so that proof of one tends to prove the others; and (3) that the similar transaction was offered for appropriate purposes of showing the defendant’s bent of mind and course of conduct. Id. According to our review of the record, the trial court’s finding was not clearly erroneous and, therefore, will not be disturbed on appeal. Davis v. State, 279 Ga. 786, 788 (3) (621 SE2d 446) (2005). We find no merit in Tyre’s contention that the similar transaction evidence was overly prejudicial, as the trial court gave detailed limiting instructions when this evidence was admitted. See Farley v. State, 265 Ga. 622, 625 (2) (458 SE2d 643) (1995) (similar transaction evidence determined to be relevant for a proper purpose should be admitted; and the prejudicial impact is a matter for jury instruction).

4. Tyre contends that the trial court erred in denying his motion to suppress evidence found in his car during a search after his arrest on March 3, 2008, as well as evidence found in his car during a search after his arrest on May 4, 2008. When reviewing a trial court’s order denying a motion to suppress,

the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. 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 his 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.

(Citation omitted.) State v. Andrews, 320 Ga. App. 792 (740 SE2d 748) (2013).

(a) Search incident to arrest on March S, 2008. Tyre objects to the trial court’s denial of his motion to suppress the items found in his car after his arrest on March 3, 2008, after his car was impounded in connection with K. L.’s report to the police. This search revealed an airsoft pistol and handcuffs under the rear passenger seat, and a roll of gray duct tape. Tyre challenges the trial court’s denial of his motion to suppress, arguing that “there was no testimony adduced . . . that the impoundment of [Tyre’s] car was done pursuant to a policy of the police department or that his car was obstructing a roadway.” Tyre is correct that at the hearing on the motion to suppress that the testifying officer merely stated that the items were found “when [the arresting] officer impounded the vehicle [and] conducted an inventory,” and that there was no testimony presented as to whether it was police policy to impound a car after arrest. However, “[i]n reviewing a trial court’s decision on a motion to suppress... we may consider all relevant evidence of record, wherever located, including evidence introduced at a suppression hearing and that introduced at trial.” (Citation omitted; emphasis supplied.) Jackson v. State, 295 Ga. App. 427, 430 (3) (671 SE2d 902) (2009). At trial, the arresting officer testified that he stopped Tyre on the side of South Airport Road in Fulton County and that an inventory of the vehicle was conducted as part of the vehicle’s impoundment. He testified that it is “customary” for police to inventory any articles in a vehicle incident to the vehicle being impounded to protect the police against liability if anything were to go missing between the time of impoundment and the time the vehicle is retrieved by the owner.

We find that the trial court correctly denied Tyre’s motion to suppress because the evidence was lawfully seized during an inventory search incident to impounding the car. Officers are sometimes permitted to impound a car, and when they do so, they may inventory its contents to protect the property of the owner and to protect the officers from potential danger and against claims for lost and stolen property. Grizzle v. State, 310 Ga. App. 577, 579 (1) (713 SE2d 701) (2011) ; State v. Lowe, 224 Ga. App. 228, 229 (480 SE2d 611) (1997). While officers cannot merely impound a car to search for contraband, they may impound a car if they must take charge of it for some legitimate reason. Lewis v. State, 294 Ga. App. 607, 611 (2) (669 SE2d 558) (2008). “The ultimate test for the validity of the police’s conduct is whether, under the circumstances then confronting the police, their conduct was reasonable within the meaning of the Fourth Amendment.” (Citation omitted.) State v. Lowe, supra at 229-230. In this case, we find that impoundment was reasonably necessary because the owner of the car, Tyre, was under arrest and the car was parked on the side of the road. See Scott v. State, 316 Ga. App. 341, 344 (729 SE2d 481) (2012) (impoundment of defendant’s car was reasonably necessary when defendant and her companion were arrested and no one remained to remove car from the shoulder of an exit ramp). Compare Canino v. State, 314 Ga. App. 633, 641 (3) (725 SE2d 782) (2012) (impoundment of defendant’s car and subsequent inventory of the car’s contents were not reasonably necessary when defendant’s car was legally parked in a shopping center parking lot and was not creating a hazard). We find no error.

(b) Search subsequent to arrest on May 4, 2008. Tyre next challenges the trial court’s denial of his motion to suppress the items found in his car after his arrest in connection with victim’s report to the police. He argues that because the State did not present a copy of the search warrant and supporting affidavit supporting the arrest at the suppression hearing, that the State failed to produce sufficient evidence that the search was made pursuant to a valid search warrant.

Jennifer A. Trieshmann, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

Under OCGA § 17-5-30 (b), “the burden of proving that [a] search and seizure were lawful shall be on the [S]tate.” Typically, the State can satisfy this evidentiary burden “by production of the warrant and its supporting affidavit, and by showing either by those documents or by other evidence that the warrant is not subject to the statutory challenge alleged.” (Citations omitted.) Watts v. State, 274 Ga. 373, 375 (2) (552 SE2d 823) (2001). At the suppression hearing, the officer testified that, after the victim’s positive identification of Tyre during a photo lineup, he personally obtained arrest warrants, had them signed by a judge, and placed them on the GCIC database. The search warrant and supporting affidavit were filed into the record on January 21, 2010, a month before the February 19, 2010, motion to suppress hearing. However, they were not introduced as evidence in the suppression hearing.

In Bowman v. State, 205 Ga. App. 347 (422 SE2d 239) (1992), this Court held that a defendant was not harmed by the State’s failure to produce evidence at the outset of the suppression hearing when the warrant and supporting affidavit were in the record. This Court reasoned that because these documents were already in the record, the defendant “was not deprived of any opportunity to confront and cross-examine witnesses [about the contents of the supporting affidavit].” Id. at 348. Here, because the testifying officer had personal knowledge concerning the existence of a valid search warrant and because the warrant and supporting affidavit were in the record prior to the suppression hearing, the State met its burden of producing evidence showing the validity of the warrant, and thus, the burden then shifted to Tyre to produce evidence supporting his challenge to the validity of the warrant. See Davis v. State, 266 Ga. 212 (465 SE2d 438) (1996). “In opposition to the evidence produced by the State, [Tyre] offered nothing. In this evidentiary posture, the [S]tate met its burden of proof as a matter of law and the denial of [Tyre’s] motion to suppress was mandated.” (Citations and punctuation omitted.) Id.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

       Tyre was indicted with the additional charge of kidnapping, but a mistrial was granted on that charge.

       The victim’s name is not being identified due to the nature of the offenses committed against her.

       The similar transaction witness’ name is not being identified due to the nature of the offenses committed against her.

       Apparently, Tyre was released on bond after the initial arrest even though it was claimed that he had raped the first victim.


source: Caselaw Access Project

author: ELLINGTON, Presiding Judge.

license: Public Domain

text:
    A13A0757, A13A0821.
    RAY v. HANN (two cases).
    (746 SE2d 600)
   ELLINGTON, Presiding Judge.

In Case No. A13A0757, Anthony Shane Ray appeals from orders of the Superior Court of Floyd County granting Johnny Hann, Jr.’s stepparent petition to adopt Ray’s minor child, A. C. R., and terminating Ray’s parental rights to the child. In Case No. A13A0821, Ray appeals from an order of the Superior Court of Floyd County denying his petition to legitimate A. C. R. Because the underlying cases were consolidated below, resolved in the same evidentiary hearing, and involve the same facts, we consolidate these appeals. For the reasons that follow, we reverse in part, vacate in part, and remand to the superior court.

Case No. A13A0821

1. Ray contends the trial court erred in denying his petition to legitimate A. C. R. Because this issue affects Ray’s legal status with respect to the child, we address it first. For the following reasons, we reverse the superior court’s order denying Ray’s legitimation petition.

“We review a trial court’s ruling on a legitimation petition for abuse of discretion. We review the court’s factual findings, however, for clear error and will only sustain such findings if there is competent evidence to support them.” (Citations and punctuation omitted.) Neill v. Brannon, 320 Ga. App. 820 (1) (738 SE2d 724) (2013).

The record shows the following relevant facts. On May 27, 2008, Nancy Peterson (now Nancy Hann) gave birth to A. C. R. at Floyd Medical Center. It is undisputed that Ray, who was never married to Peterson, is A. C. R.’s biological father, and he attended the birth. On the official birth certificate, the hospital listed Ray as the child’s father, and the child was given Ray’s surname. The Putative Father Registry maintained by the State Office of Vital Records also identified Ray as A. C. R.’s putative father.

On May 29, 2008, before leaving the hospital, Ray and Peterson both signed a form entitled “Paternity Acknowledgment — State of Georgia.” In addition to acknowledging Ray’s biological paternity, the form contained a statement by both Ray and Peterson in which they agreed and consented that Ray’s relationship with A. C. R. “shall be considered legitimate for all purposes under the law pursuant to OCGA § 19-7-22 (g) (2).” Peterson admitted signing the paternity and legitimation acknowledgment form, stating that she “didn’t oppose [signing] it.”

Months later, Peterson and Ray ended their relationship. In September 2010, Peterson married Hann; in May 2012, Hann filed a petition to adopt A. C. R. Ray filed a petition to legitimate A. C. R. and opposed the adoption. After a hearing, the trial court denied Ray’s petition to legitimate A. C. R., terminated Ray’s parental rights, and granted Hann’s petition to adopt the child.

In Georgia, legitimation is the statutory legal process through which a biological father becomes the legal father of a child born out of wedlock. When A. C. R. was born, legitimation could be effected through court proceedings as provided in OCGA § 19-7-22. In addition to judicial legitimation, OCGA § 19-7-22 (g) (2) provided for non-judicial or administrative legitimation, as follows:

In any voluntary acknowledgment of paternity which has been made and has not been rescinded pursuant to Code Section 19-7-46.1, when both the mother and father freely agree and consent, the child may be legitimated by the inclusion of a statement indicating a voluntary acknowledgment of legitimation.

In this case, the acknowledgment satisfies the requirements of OCGA § 19-7-22 (g) (2). Ray and Peterson both signed a form which contained an acknowledgment of paternity and an acknowledgment of legitimation; they signed the form voluntarily; Peterson did not rescind the form within 60 days as provided in OCGA § 19-7-46.1; and the form was filed with the Office of Vital Records as required by OCGA § 19-7-46.1. We must conclude, therefore, that Ray’s relationship with A. C. R. was rendered legitimate. Because Ray has demonstrated compliance with the applicable statutory prerequisites of administrative legitimation, and because the record contains no evidence upon which the acknowledgment of legitimation may be set aside, he remains the child’s legal father unless and until his parental rights have been terminated in compliance with the law governing such terminations. See Division 2, infra. Given Ray’s status as the child’s legal father, the court’s order denying the petition to legitimate was an abuse of discretion and must be reversed.

We note that the court below was critical of the legitimation acknowledgment form at issue in this case because it failed to comply with all of the requirements of OCGA § 19-7-21.1, andit appears that the form used in this case indeed did little to inform the parties of the legal consequences of signing it. We find no authority, however, for applying those requirements retroactively, as the trial court apparently did in this case. We must evaluate the effect of the acknowledgment of legitimation made in this case under the law as it then existed, which was OCGA § 19-7-22 (g) (2).

Case No. A13A07S7

2. Ray contends that the trial court erred in terminating his parental rights and granting the petition for adoption, arguing that there was insufficient clear and convincing evidence to support the court’s rulings. We do not reach the merits of Ray’s claims, however, because the trial court did not make the requisite findings of fact and conclusions of law in either its order terminating Ray’s parental rights or in the adoption decree.

Generally, a stepparent may adopt his or her spouse’s child only if the biological parent whose rights will terminate with the adoption “voluntarily and in writing surrenders all of his [or her] rights to the child to [the stepparent] for the purpose of enabling [the stepparent] to adopt the child[.]” OCGA § 19-8-6 (a) (1). If the biological parent refuses to surrender his or her parental rights, OCGA § 19-8-10 provides that the court may nevertheless terminate the biological parent’s rights and grant the stepparent’s petition to adopt the child if it finds, among other things, that there is clear and convincing evidence that the parent has abandoned the child, that the “[p] arent has failed to exercise proper parental care or control due to misconduct or inability, as set out in paragraph (2), (3), or (4) of subsection (b) of Code Section 15-11-94,” or that the parent,

for a period of one year or longer immediately prior to the filing of the petition for adoption, without justifiable cause, has significantly failed: (1) To communicate or to make a bona fide attempt to communicate with that child in a meaningful, supportive, parental manner; or (2) To provide for the care and support of that child as required by law or judicial decree [.]

OCGA § 19-8-10 (a) (1), (a) (4); 19-8-10 (b). See also Johnson v. Taylor, 292 Ga. App. 354 (665 SE2d 49) (2008) (This Court applies the clear and convincing evidence standard when considering the sufficiency of evidence in adoption cases involving the termination of parental rights.). “It is the petitioner's] burden to prove that termination of the [father’s] parental rights is warranted, including the lack of justifiable cause.” (Punctuation and footnote omitted.) Smallwood v. Davis, 292 Ga. App. 173, 175 (1) (664 SE2d 254) (2008).

[T]he words “without justifiable cause” as used in [OCGA] § 19-8-10 (b) are constitutionally significant. The Due Process Clause gives a parent substantial protection of his or her parental rights requiring that clear and convincing evidence of unfitness be shown before a natural parent’s rights in his child may be terminated.

(Punctuation and footnote omitted.) Id. We note that

justifiable cause for the failure to pay child support may be found in situations where the parent has been unable to earn income due to incarceration, mental illness, mental incapacity, hospitalization, or other circumstances beyond his or her control. Each case must be decided on its own circumstances. . . . Incarceration does not per se give rise to justifiable cause for failure to pay support; rather it is simply one factor to be considered.

(Citation and punctuation omitted.) In re Marks, 300 Ga. App. 239, 245 (2) (b) (684 SE2d 364) (2009).

If the petitioner meets that burden of proof and the court finds that one of the above circumstances exists, then the court must also determine whether the proposed adoption is in the best interest of the child. OCGA § 19-8-10 (a) (1), (b).

With regard to the best interest test in adoption cases, the trial court has very broad discretion with which this Court will not interfere except in cases of plain abuse. However, a court is not allowed to terminate a parent’s natural right because it has determined that the child might have better financial, educational or even moral advantages elsewhere. Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship. The requirements of Georgia’s adoption statutes are mandatory and must be strictly construed in favor of the natural parents, because the application thereof results in the complete and permanent severance of the parental relationship.

(Citations, punctuation and emphasis omitted.) In re Marks, 300 Ga. App. at 242-243.

We are unable to evaluate whether the court erred in terminating Ray’s parental rights pursuant to OCGA § 19-8-10 (b) because the trial court did not make specific factual findings and conclusions of law with respect to these criteria. Although the court concluded that Ray had not communicated with A. C. R. or provided support for a period of time given the fact that Ray had been incarcerated, the court did not conclude that Ray had abandoned A. C. R. within the meaning of the law or make specific factual findings or conclusions of law concerning the issue of justifiable cause. The court did not address any of the criteria for termination pursuant to OCGA § 15-11-94. The court’s conclusion that adoption was in the child’s best interest is also lacking in particularity.

Further, OCGA § 19-8-18 (b) provides: “In all cases wherein Code Section 19-8-10 is relied upon by any petitioner as a basis for the termination of parental rights, the court shall include in the decree of adoption appropriate findings of fact and conclusions of law relating to the applicability of Code Section 19-8-10.” In Maynard v. Brown, 276 Ga. App. 229 (622 SE2d 901) (2005), we determined that “[a] judgment having such a final, ultimate and significant result as that of severing the rights of a parent to a child must conclusively show compliance with the statutory criteria prescribed as a condition precedent for such termination.” (Citations and punctuation omitted.) Id. at 231. “The decree must present more than a mere legal conclusion which is not supported by mandatory findings of fact, or a dry recitation that certain legal requirements have been met.” (Citations and punctuation omitted.) Id.

In the absence of specific findings of fact to support the trial court’s conclusion that the requisites of OCGA § 19-8-10 (b) have been met, we are constrained to vacate the court’s order terminating Ray’s parental rights, as well as the adoption decree, and to remand this case to the trial court with the direction that it enter a new decree with specific findings of fact and conclusions of law as required by OCGA § 19-8-18(b). We therefore do not reach Ray’s contentions with regard to the termination and adoption, and we express no opinion upon the merits of those contentions.

Judgment vacated and case remanded in Case No. A13A0757. Judgment reversed in Case No. A13A0821.

Phipps, C. J., and Branch, J., concur.

Decided July 15, 2013.

Magruder & Sumner, Susan D. Taylor, for appellant.

Paul R. Cadle, Jr., for appellee.

       This Court granted Ray’s application for discretionary review of the orders appealed.

       When a live birth occurs in a hospital within the state, the hospital is required to file a birth certificate with the State Office of Vital Records within 72 hours of the birth. OCGA § 31-10-9 (a), (b). If the mother is unmarried at the time of conception or birth, the hospital may not list the putative father’s name on the birth certificate without the written consent of the mother and the putative father. OCGA § 31-10-9 (e) (2). Except as otherwise provided, “[w]hen a paternity acknowledgment is completed, the surname of the child shall be entered as designated by both parents.” OCGA § 31-10-9 (e) (5).

       See 1-V Georgia Domestic Relations Forms 5.1 (“[The Paternity Acknowledgment Form] is maintained by Vital Records as part of the permanent record in support of the Certificate of Live Birth, so the practitioner can request a copy from Vital Records to determine if a child’s relationship to a man has been administratively legitimated.”).

       See In re Pickett, 131 Ga. App. 159, 160 (205 SE2d 522) (1974). See also OCGA § 19-8-1 (6) (“Legal father” includes males who have “legitimated the child by a final order pursuant to Code Section 19-7-22” or males who have ‘legitimated the child pursuant to Code Section 19-7-21.1.”); see also OCGA § 19-7-21.1 (a) (2) (F) (2009) (“ ‘Legal father’means a male who ... [h]as legitimated a child pursuant to this Code section and who has not surrendered or had terminated his rights to the child.”).

       OCGA § 19-7-22 (g) (2) was enacted in 2005 “to provide for legitimation by a voluntary acknowledgment of paternity in certain circumstances.” See Ga. L. 2005, p. 1491, § 1. See also 1-V Georgia Domestic Relations Forms 5.1. A new Code section, OCGÁ § 19-7-21.1, became effective on July 1,2008, over a month after A. C. R. was born. See Ga. L. 2008, p. 667, § 4. This Code section provided for rights and remedies in the administrative legitimation process similar to those that applied to acknowledgments of paternity; it also added new limitations on administrative legitimation. For example, the acknowledgment of legitimation must be made before the child’s first birthday, OCGA § 19-7-21.1 (b); the legitimation will not be recognized if certain conditions are present, OCGA § 19-7-21.1 (c); and the rights and remedies applicable to acknowledgments of paternity contained in OCGA § 19-7-46.1, also expressly apply to acknowledgments of legitimation, OCGA § 19-7-21.1 (b). The new Code section provides that “(Vjoluntary acknowledgment of legitimation shall not authorize the father to receive custody or visitation until there is a judicial determination of custody or visitation.” OCGA § 19-7-21.1 (e). See Sauls v. Atchison, 316 Ga. App. 792, n. 1 (730 SE2d 459) (2012).

       OCGA § 19-7-46.1 (c) provides that, after the expiration of the 60 day rescission period, the signed voluntary acknowledgment of legitimation “may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the person challenging the acknowledgment.”

       See Sauls v. Atchison, 316 Ga. App. at 792, n. 1 (“[Tjhere is obvious potential for this statutory acknowledgment to create significant difficulties for our trial judges and practitioners. However, this is for the General Assembly, not this court, to address.”). “Most critical is the fact that absent from the administrative legitimation process is a finding that the legitimation is in the best interest of the child.” 1-V Georgia Domestic Relations Forms 5.1.

       It is well settled that
      legislation which involves mere procedural or evidentiary changes may operate retrospectively; however, legislation which affects substantive rights may only operate prospectively. The distinction is that a substantive law creates rights, duties, and obligations while a procedural law prescribes the methods of enforcing those rights, duties, and obligations.
      (Citations omitted.) Fowler Properties v. Dowland, 282 Ga. 76, 78 (1) (646 SE2d 197) (2007). OCGA § 19-7-22 (g) (2), by allowing Ray to acquire the status of the child’s legal father, creates rights, duties, and obligations comprising the most “fundamental and fiercely guarded” of substantive legal rights. (Citation omitted.) Ira the Interest of J.M.B., 296 Ga. App. 786, 789 (676 SE2d 9) (2009).

       In order to authorize a finding of abandonment under that Code section, there must be clear and convincing evidence of an “actual desertion, accompanied by an intention to sever entirely, as far as possible to do so, the parental obligations growing out of the [parent/child relationship], and forego all parental duties and claims.” (Punctuation and footnote omitted; emphasis in original.) Hall v. Coleman, 264 Ga. App. 650, 653 (1) (592 SE2d 120) (2003).

       The General Assembly amended OCGA § 19-8-10 (a) (4) in 2013, effective January 1, 2014. Ga. L. 2013, p. 127, §§ 4-25; 5-1.


author: Phipps, Chief Judge.

text:
    A13A0789.
    CHATHAM v. THE STATE.
    (746 SE2d 605)
   Phipps, Chief Judge.

Mickey Howard Chatham was indicted for three drug offenses. He filed a motion to suppress evidence seized from his residence pursuant to a search warrant, contending that the warrant was issued without probable cause. Chatham filed this interlocutory appeal from the denial of his motion to suppress. For the reasons that follow, we reverse.

“A search warrant will only issue upon facts sufficient to show probable cause that a crime is being committed or has been committed.”

In determining probable cause for the issuance of a search warrant, the issuing magistrate must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Where, as here,

a motion to suppress is made on one of the three statutory grounds enumerated in OCGA § 17-5-30 (a) (2), challenging the validity of a search and seizure with a warrant, the burden of showing that the search and seizure were lawful shall be on the state. This burden upon the state is satisfied by production of the warrant and its supporting affidavit, and by showing either by those documents or by other evidence that the warrant is not subject to the statutory challenge alleged.
Our appellate courts will review the search warrant to determine the existence of probable cause using the totality of the circumstances analysis set forth in Illinois v. Gates. [] The duty of the appellate courts is to determine if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant. ... In reviewing, the trial court’s grant or denial of a motion to suppress, we apply the well-established principles that the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review, keeping in mind that a magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.

At the hearing on the motion to suppress, the state produced the affidavit and application that the attesting law enforcement officer submitted in support of the request for a search warrant. In the affidavit, dated December 3, 2011, the officer pertinently averred that he had met with a confidential informant (“Cl”) who claimed to have personal knowledge that Chatham was selling crystal methamphetamine from a residence at a particular address on Westfall Road, and that the Cl could purchase crystal methamphetamine from Chatham inside that residence. After searching the Cl’s person and vehicle and finding no contraband or currency, the officer gave the Cl funds with which to purchase drugs “and directed [Cl] to the [specified] residence to attempt a narcotics purchase.” The affidavit provided further:

[The officer] then acted in an undercover capacity and followed Cl to within a short distance of the [specified] residence, observing Cl’s vehicle on Westfall Road. A short time later, [the officer] met with Cl at a predetermined meeting location and Cl immediately handed [the officer] a quantity of suspected crystal methamphetamine. Cl stated that it purchased the suspected crystal methamphetamine from Mickey Howard Chatham from inside the above-mentioned residence in exchange for the undercover drug purchasing funds. [The officer] then searched the Cl’s person and vehicle and no contraband or currency was located.

The officer averred further that the “Cl has a criminal history” and is a convicted felon. He also averred that the Cl had provided directions to and a description of the residence, and that fellow law enforcement officers knew that Chatham lived at that residence. The officer averred that the “Cl has participated in at least one (1) narcotics investigation (this investigation) [] where crystal methamphetamine was seized[,] [and] at no time has the Cl shown or expressed any ill will or malice towards . . . Chatham.” The record does not show, and the state does not claim, that any additional information was presented to the magistrate. The magistrate concluded that probable cause existed and issued the search warrant (which warrant was admitted into evidence at the suppression hearing). Officers executed the search warrant, seizing pursuant thereto suspected crystal methamphetamine. In announcing its ruling at the hearing on the suppression motion, the trial court remarked that the officer had “followed the protocol” by searching the Cl before and after the Cl obtained the drugs, but noted that the police had not seen or recorded the purported transaction.

Chatham contends that the trial court erred by denying the motion to suppress when the search warrant was issued based upon the statements of a Cl whose reliability, credibility and source of information were unknown, and law enforcement officers had failed to corroborate the Cl’s claim that Chatham was selling drugs from the residence. We agree.

Where the state seeks to show probable cause through information gained from an unidentified informant, the informant’s veracity and basis of knowledge are major considerations in the probable cause analysis. An informant’s information shows nothing more than rumor if the affidavit does not contain sufficient facts for the magistrate to independently determine the reliability of the informant or the basis of the informant’s knowledge. However, there is no absolute requirement that a search warrant affiant state circumstances which demonstrate the reliability of the informant and his information. Those factors are highly relevant considerations, but the applicable test is based on the totality of the circumstances.

Further, “[e]ven if an unidentified informant is not shown to be trustworthy, [his or] her tip may be proved reliable if portions of it are sufficiently corroborated by the police.” “Once a motion to suppress has been filed, the burden of proving the lawfulness of the [search] warrant is on the state and that burden never shifts.”

In this case, the affidavit did not contain sufficient information from which the magistrate could determine that the Cl was inherently credible or reliable, or the basis of his or her knowledge. It is undisputed that, prior to the purported drug buy in this case, the Cl had not assisted police in a narcotics investigation. That the Cl knew where Chatham lived did not establish that he or she was a credible source of information about Chatham’s alleged current criminal activity in the residence.

Where a confidential informant is not shown to be inherently credible or reliable, “a statement made by the confidential informant maybe shown to be trustworthy if it is independently corroborated.” Here, the record is devoid of any such corroboration. “The [Cl] was untested, and there is no indication that the officer either heard or was able to view the purchase which the [Cl] was alleged to have made.” And there is no indication that the officer saw the Cl either enter or exit Chatham’s residence, or that police otherwise monitored or observed the Cl’s actions between the time the officer followed him or her “to within a short distance of” the residence and when, “[a] short time later,” the officer met the Cl at a predetermined location. The affidavit failed to set forth sufficient information from which the magistrate could have independently determined the reliability of the information or of the CI.

Decided July 15, 2013.

Harvey S. Wasserman, for appellant.

Robert W. Lavender, District Attorney, Adam C. Schroeder, David P. White, Assistant District Attorneys, for appellee.

The state cites Brown v. State for the principle that “[a] controlled buy strongly corroborate [s] the reliability of the informant.” Indeed, this court has held that a “controlled buy conducted under the observation of the [law enforcement] officer” can, by itself, provide probable cause, and that controlled buys that are actually observed by the police can supply probable cause. But in the instant case, there was no evidence that the police in fact controlled or observed the purported buy, or observed the Cl’s conduct immediately before or immediately after the purported buy. In light of the lack of information regarding the Cl’s veracity, reliability and the basis of his knowledge, the magistrate did not have a substantial basis for concluding that probable cause existed to issue the search warrant. Thus, the trial court erred by denying Chatham’s motion to suppress.

Judgment reversed.

Ellington, P. J., concurs. Branch, J., concurs in judgment only.

        State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237) (2009) (citation omitted); OCGA § 17-5-21 (a).

        Browner v. State, 265 Ga. App. 788, 789 (1) (595 SE2d 610) (2004) (citations omitted).

        Davis v. State, 266 Ga. 212, 213 (465 SE2d 438) (1996) (citation and punctuation omitted).

       462 U. S. 213 (103 SCt 2317, 76 LE2d 527) (1983).

        Palmer, supra at 78 (citations and punctuation omitted).

       In the affidavit, the affiant sometimes referred to the confidential informant as “it” or “Cl.”

       (Emphasis supplied.)

        Evans v. State, 263 Ga. App. 572, 574 (2) (b) (588 SE2d 764) (2003).

        Lyons v. State, 258 Ga. App. 9, 11 (1) (572 SE2d 632) (2002) (footnote omitted).

        Davis, supra (citations omitted).

       See Lyons, supra.

        Browner, supra at 790 (1) (citation omitted; emphasis supplied).

        Fiallo v. State, 240 Ga. App. 278, 279 (523 SE2d 355) (1999) (citations omitted).

       See id. (reversing denial of motion to suppress where search warrant was issued based on officer’s statements that confidential informant had seen drugs in defendant’s home, that police had not previously used the informant, that the informant purchased drugs at the residence for the officer, and there was no indication that the officer had heard or seen the alleged purchase). Compare Campbell v. State, 263 Ga. App. 755, 757 (589 SE2d 313) (2003) (magistrate had sufficient information of probable cause where officer had not only searched the informant before and after the drug buy, she had accompanied the informant to the buy and monitored the informant at all times); Turner v. State, 247 Ga. App. 775, 778-779 (544 SE2d 765) (2001) (there was substantial evidence to support the magistrate’s issuance of search warrant where officer, besides searching informant, watched him enter and exit defendant’s residence and the informant handed the officer drugs as he exited the residence).

       244 Ga. App. 440 (535 SE2d 785) (2000).

       See id. at 442 (1).

        Ibekilo v. State, 277 Ga. App. 384, 385 (1) (626 SE2d 592) (2006); see also Davis v. State, 256 Ga. App. 299, 302 (1) (568 SE2d 161) (2002).

        See State v. Alvin, 296 Ga. App. 402 (674 SE2d 348) (2009) (finding probable cause where officers surveilled both informant and residence before and during controlled buy and followed informant to designated meeting spot afterward); Ibekilo, supra (informant, “while under constant surveillance,” knocked on door of residence and made controlled buy); Tackett v. State, 211 Ga. App. 664, 665-667 (2) (440 SE2d 74) (1994) (probable cause for warrant existed where law enforcement officer saw informant enter the residence and monitored all conversations during controlled buy).

       See generally Palmer, supra at 79.

       See generally Sullivan v. State, 284 Ga. 358, 361 (2) (667 SE2d 32) (2008); Fiallo, supra; Hamilton v. State, 210 Ga. App. 496, 497-498 (1) (436 SE2d 500) (1993) (magistrate had a substantial basis for concluding that probable cause existed and issuing search warrant where officer related in affidavit that he had searched the informant, watched the informant enter the defendant’s vehicle with money and no drugs and then emerge from the vehicle with drugs and no money, and informant had never been out of the officers’ sight between the time of the initial search and the time informant returned to the officers).

       See Fiallo, supra; see generally St. Fleur v. State, 286 Ga. App. 564, 567-568 (1) (649 SE2d 817) (2007).


author: DOYLE, Presiding Judge.

text:
    A13A0203.
    THE STATE v. HARRELL.
    (744 SE2d 867)
   DOYLE, Presiding Judge.

The State appeals from the grant of a motion to suppress filed by Bryan Lamar Harrell, who was indicted for illegally using a communication facility (four counts), possessing marijuana, and possessing cocaine. The State contends that the trial court erred by concluding that the wiretap was unlawful. Because the trial court’s legal conclusions are incorrect or unsupported by the record, we reverse.

“In this Court’s review of a trial court’s grant or denial of a motion to suppress, the trial court’s findings on disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed facts is subject to de novo review.”

The record shows that Frank Green, a POST-certified investigator with the Bainbridge Public Safety Department, who was also deputized by the United States Drug Enforcement Administration, was participating in a federal drug investigation. As part of that investigation, Green prepared an application for a federal wiretap on a suspected drug dealer named Emanuel Hodge, Jr. The application was presented to United States District Court Judge Clay Land by an assistant United States attorney, while Green was present in district court, and Judge Land approved the application and signed an order authorizing a 30-day wiretap pursuant to 18 USC § 2518.

As part of the investigation, federal authorities allowed Green to monitor the wiretap, and Green determined that Harrell had contacted the suspected drug dealer by phone approximately 50 times over an 11-day period to order cocaine. After one particular order, Green contacted other local investigators to coordinate a vehicle stop of Harrell after the transaction. After Green observed Harrell drive from the meeting place arranged in the monitored phone call, officers stopped Harrell’s vehicle. Officers found a misdemeanor amount of suspected marijuana in Harrell’s pocket and a baggie of suspected cocaine that Harrell had thrown out of his vehicle when he noticed police following him. Harrell was then arrested and placed in the back of a police cruiser, where he received a phone call secretly monitored by the wiretap. The call was placed by the suspected drug dealer who asked Harrell if he had been stopped, and Harrell replied, “yeah, but [I] threw it out.”

Based on these events, Harrell was charged with illegally using a communication facility and possession of cocaine and marijuana. He moved to suppress the evidence, challenging the legality of the wiretap, and following an evidentiary hearing, the trial court granted the motion. The State now appeals.

The State contends that the trial court erred by ruling that the wiretap authorization was unlawfully obtained. Specifically, the trial court ruled that the wiretap application was deficient because (a) it was not obtained by the prosecuting attorney before a superior court judge, (b) it did not show whether it was sealed or properly unsealed, and (c) the required notice to Harrell listed the wrong issuing judge. We agree with the State that the trial court erred by granting the motion to suppress on these grounds.

We begin our analysis by noting the context for Harrell’s motion to suppress. Harrell sought to exclude the evidence obtained during the vehicle stop because he argues that the suspicion for the stop was obtained through an illegal wiretap. In other words, if the wiretap were not conducted, the police would have had no evidence of his illegal use of the communication device nor any suspicion justifying the stop of his vehicle which led to the drug possession charges.

The general legal framework governing wiretap authority involves both federal and state law: “Wiretapping and surveillance are the subjects of federal and state law[,] and both must be complied with where applicable.” “When a state or federal agent has improperly procured a wiretap order, or there has been any failure to precisely comply with [applicable] requirements . . . , the taped evidence is inadmissible, regardless of the good faith of the government agents.” Thus, no evidence obtained in a manner that violates the wiretapping statutes is admissible to show guilt.

The applicable wiretap statute provided as follows, at former OCGA § 16-11-64 (c):

Upon written application, under oath, of the prosecuting attorney having jurisdiction over prosecution of the crime under investigation, or the Attorney General, made before a judge of superior court, said court may issue an investigation warrant permitting the use of such [wiretapping] device, as defined in Code Section 16-11-60, for the surveillance of such person or place to the extent the same is consistent with and subject to the terms, conditions, and procedures provided for by Chapter 119 of Title 18 of the United States Code Annotated, as amended.

This Code section makes it clear that Georgia’s substantive requirements for obtaining a wiretap incorporate the federal requirements. The Supreme Court of Georgia recently explained the historical context for this provision.

[The] provision incorporating the federal law was added to the statute as part of Georgia’s Support of the War on Terrorism Act of 2002. In the 2002 amendments to the wiretap statute, the legislature deleted eight subparagraphs of procedural standards and replaced them with a single paragraph referring to the federal law. It thus appears that these amendments were intended to streamline Georgia’s rules in this area and harmonize them with federal standards. Though we have long recognized that state-authorized wiretaps must comply with both federal and state statutory requirements, our current statute’s express deference to the federal statute underscores this point.

We now turn to the specific legal issues raised in this appeal, (a) Authority for approving wiretap application. The trial court’s order states as follows, in relevant part:

Under Georgia law, the written [wiretap] application must be submitted, under oath, by the prosecuting attorney having jurisdiction over the prosecution of the crime under investigation... and must be made before a judge of superior court.[] OCGA [§] 16-11-64 (c). Neither was done in the instant case.
The wiretap warrants were not sought and obtained through the applicable State of Georgia statutory procedures, i.e.[,] the wiretap warrants were not obtained in compliance with Georgia law.

Based, on OCGA § 16-11-64 (c), the trial court appears to have ruled that the wiretaps were illegal because they were not sought by a Georgia prosecutor before a Georgia superior court. But this misreads the wiretap statute. OCGA § 16-11-64 (c) merely provides authority to superior court judges to issue wiretap warrants upon proper application by the prosecuting attorney. The statute contains no prohibition against evidence gathered as part of a federal investigation in compliance with the federal warrant process. In this case, the wiretap was obtained from a federal judge to whom an assistant United States attorney made a proper application. Investigator Green was working with federal officials in a multi-jurisdictional drug investigation, and the application materials, along with Green’s testimony, demonstrate that the requirements outlined in the applicable federal Code section, 18 USC § 2518, were met. Thus, the fact that the warrant was not initially issued by a Georgia superior court judge did not violate the requirements for obtaining a warrant codified in OCGA § 16-11-64 (c), and this fact does not require suppression of evidence gathered pursuant to the warrant.

(b) Sealing the Wiretap Order. The trial court also concluded that the State “failed to show that the Order was properly sealed or that it was properly, subsequently unsealed,” citing 18 USC § 2518 (8) (b). That subsection provides as follows:

Applications made and orders granted under this chapter [18 USC § 2510etseq.] shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. Such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for ten years.

The trial court’s order does not provide further explanation nor does it assert that any improper disclosure has been made. The record clearly demonstrates that the application and order were filed under seal, and the only disclosure of record was the disclosure to the trial court for purposes of the motion to suppress. Accordingly, we discern no violation of 18 USC § 2518 (8) (b), and the trial court erred by suppressing the evidence on this ground.

(c) Proper notice. Last, the trial court notes that the notice providedby Green to Harrell mistakenly listed the wrong judge as the issuing judge. The trial court concluded that this was a violation of 18 USC § 2518 (8) (d), which provides as follows, in relevant part:

Within a reasonable time but not later than ninety days after the filing of an application for an order of approval under [18 USC § 2518 (7) (b)] which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application ... an inventory which shall include notice of —
(1) the fact of the entry of the order or the application;
(2) the date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application; and
(3) the fact that during the period wire, oral, or electronic communications were or were not intercepted.

Investigator Green conceded that he did mistakenly list the wrong judge in the inventory provided to Harrell, but Harrell does not dispute that he was notified of the items enumerated in 18 USC § 2518 (8) (b). It is clear from this subsection that its intent is to provide notice of the fact that the government sought a wiretap warrant, whether a warrant was issued and for what duration, and whether any communications were intercepted. A scrivener’s error in the judge’s name does not frustrate this purpose, and if Congress or the Georgia General Assembly had intended to make the name of the judge a required part of this notice, they could have included them in the enumerated items. Because they did not, we decline to do so now.

We note that Harrell argued below and now on appeal that the wiretap application should not have been considered by the trial judge because it allegedly contained hearsay. Nevertheless, the application documents were authenticated by Green, who prepared the documents and testified about them, and the application documents were offered not to prove the assertions therein, but to demonstrate that the requirements of the wiretap statute were met. Furthermore, “[ojfficers are entitled to rely on information provided by other officers .... There is no requirement that the officer or officers providing the information testify at the motion to suppress.” And “hearsay is admissible during a suppression hearing when determining the existence of probable cause.” Accordingly, the trial court did not err hy considering the application package over Harrell’s hearsay objection.

Decided June 19, 2013

Reconsideration denied July 16, 2013

Joseph K. Mulholland, District Attorney, Heather H. Lanier, Assistant District Attorney, for appellant.

Robert R. McLendon IV, for appellee.

In light of the trial court’s incorrect application of the wiretap statutes, it erred by concluding that the wiretap evidence did not satisfy Georgia law. Thus, the trial court erred by granting Harrell’s motion to suppress.

Judgment reversed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-13-32.3 (a).

       OCGA § 16-13-30 (j) (1).

       OCGA §§ 16-13-26 (1) (D); 16-13-30 (a).

        Barrett v. State, 289 Ga. 197, 200 (1) (709 SE2d 816) (2011).

       See generally Leftwich v. State, 299 Ga. App. 392, 394 (1) (682 SE2d 614) (2009) (evidence is fruit of the poisonous tree if it would not have heen discovered but for illegal police conduct). Harrell filed two separate motions to suppress, which were consolidated in the trial court.

       (Punctuation omitted.) North v. State, 250 Ga. App. 622, 623 (1) (552 SE2d 554) (2001).

        Jordan v. State, 211 Ga. App. 86, 89-90 (1) (a) (438 SE2d 371) (1993).

       See OCGA § 16-11-67.

       OCGA § 16-11-64 (c) was amended effective February 13, 2013.

       (Emphasis supplied.)

       (Citations omitted; emphasis supplied.) Luangkhot v. State, 292 Ga. 423, 425 (1) (736 SE2d 397) (2013).

       (Emphasis in original.)

       See generally Hinton v. State of Ga., 224 Ga. App. 49, 50 (2) (479 SE2d 424) (1996) (explaining a rule of statutory construction, expressum facit cessare taciturn, “which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned”) (punctuation omitted).

       (Citations omitted.) Edmond v. State, 297 Ga. App. 238, 239 (676 SE2d 877) (2009).

       (Citation omitted.) Daniel v. State, 298 Ga. App. 245, 248 (3) (679 SE2d 811) (2009).


text:
    A13A0360.
    MacDOWELL v. GALLANT et al.
    (744 SE2d 836)
   DOYLE, Presiding Judge.

Ursula MacDowell appeals from the grant of summary judgment to Dr. Steven M. Gallant and Steven M. Gallant, D.D.S., PC., in her suit alleging dental malpractice. MacDowell argues that the trial court erred by ruling that she filed her action outside of the two-year statute of limitation. Specifically, she challenges the trial court’s ruling that MacDowell’s consultation with an oral surgeon working with Gallant ended the tolling caused by Gallant’s fraudulent concealment of her cause of action. For the reasons that follow, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Viewed under this standard, the record shows that MacDowell had a series of problems with her teeth. She initially sought help from at least two dentists and was referred by one to Dr. Laura Braswell. In February 2006, Braswell examined MacDowell and identified several problems with MacDowell’s teeth. In February or March 2006, Braswell referred MacDowell to Gallant, a general practitioner with a specialty in prosthetics, and Dr. Mollie Winston, an oral surgeon, for treatment. Gallant and Winston are in different practices, and they each performed different aspects of MacDowell’s dental treatment. Gallant created the treatment plan, including developing a surgery guide, taking bite models, and installing prostheses; Winston performed the extraction and implant surgeries.

Based on his examination of MacDowell, Gallant confirmed that she needed a full mouth prosthodontic reconstruction, and he developed a course of action that would involve several procedures over a year or more. Gallant prepared a letter outlining his goal of installing fixed implant prostheses and the associated costs. MacDowell elected to embark on the plan, and based on Gallant’s surgical guides, Winston extracted certain teeth and replaced them with implants. When Gallant later examined MacDowell, he determined that the implants were placed too deep, too close together, and at an incorrect orientation. By November 2006, a few weeks after Winston performed the implant procedure on MacDowell, Gallant had also consulted with another dentist, Dr. Hal Arnold, who confirmed Gallant’s opinion that the implants were improperly placed and would create difficulties in executing the final plan for prostheses.

As of November 2006, the implants were still relatively new, and an option remained to remove them and potentially reconfigure them before they integrated into the bone. Gallant did not inform MacDowell of the improper implantation, and instead, exercising his own judgment, decided that “with what this woman has been through, it’s enough,” and he endeavored to work around the difficulties with the existing implants. He admits that he did not consult MacDowell in this decision.

Ultimately, MacDowell’s prosthetics were misaligned and did not perform as desired. MacDowell complained to Gallant in February 2007 that her tongue overlapped her teeth such that she could not chew without biting her tongue. Gallant performed several adjustments, and in November 2007, Gallant sent MacDowell to Winston for examination of MacDowell’s tongue and mouth due to MacDowell’s continued problems. Winston told MacDowell that her reconstruction process was taking too long, and after taking some measurements, Winston told MacDowell that her reconstruction was too narrow. Gallant continued to make several more adjustments over several more office visits in November 2007 through January 2008. Winston again saw MacDowell in January 2008, and discussed her problems.

In February 2008, Gallant referred MacDowell to Arnold for a second opinion, and Arnold examined her on February 13, 2008. Based on that examination, Arnold recommended that the reconstruction be redone. Gallant ultimately offered to “remake the case,” but MacDowell declined and obtained care from Arnold and other dentists, requiring several additional painful and costly restorative procedures.

On January 26, 2010, MacDowell filed suit against Gallant and his practice, alleging claims for professional malpractice, breach of contract, battery, and negligence per se. Following discovery, the defendants moved for summary judgment on the ground that MacDowell filed her suit outside of the applicable two-year statute of limitation. The trial court granted the motion, giving rise to this appeal.

Generally, under OCGA § 9-3-71, “an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” “In most cases of negligent treatment. . . , the statute of limitation for medical malpractice will begin running at the time of the treatment____That is the time that the injury generally occurs.” With respect to Gallant, the latest date of alleged injury (which was immediately manifested by mouth alignment problems) was when MacDowell received her final prosthesis on November 2, 2007.

MacDowell did not file her complaint until January 2010, which is more than two years after her alleged injury, but she argues that the statute of limitation was tolled by Gallant’s fraudulent failure to tell her of his opinion that the implants were improperly placed, particularly before they became integrated into the bone and much more difficult to remove. The trial court ruled that even if MacDowell can show fraud that would toll the statute of limitation, the tolling stopped when MacDowell, in the exercise of ordinary care, could have learned of the existence of her cause of action.

The trial court relied on Georgia case law stating that, in the medical malpractice context, “[o]nce a plaintiff seeks the diagnosis or care of another doctor, she is no longer deterred from learning the true facts by any conduct of a defendant even if the other doctor consulted does not diagnose the medical problem as arising from the defendant’s improper treatment.” Based on this, the trial court ruled that when MacDowell saw Winston to discuss the problems she was having after Gallant placed the prostheses, this was, in effect, seeking the diagnosis or care of another doctor. So as of the time MacDowell spoke to Winston about her problems in November 2007 or on January 8, 2008, the trial court concluded that the tolling stopped because MacDowell learned (or could have learned) of the problems arising from Gallant’s work. Based on those visits to Winston, the trial court ruled that MacDowell’s January 26, 2010 complaint was filed outside of the statute of limitations.

Decided June 18, 2013

Reconsideration denied July 16, 2013

Curtis A. Thurston, Jr., for appellant.

We conclude that the trial court erred by ruling that MacDowell’s visits to Winston ended the tolling period. Winston was one of MacDowell’s original treating physicians and was the very practitioner who allegedly placed the implants incorrectly. Further, as a treating doctor, Winston was not in a position to provide a second opinion as to the procedures that she herself executed as a team with Gallant. Therefore, by consulting with Winston, MacDowell cannot be deemed to have sought an independent medical opinion such that she reasonably could have discovered her cause of action. The purpose of seeking a second opinion is to overcome the alleged fraud that deters the patient from discovering the true facts. In this case, Winston could not provide a second opinion as to the work that she and Gallant were performing together. Accordingly, we conclude that the trial court erred by ruling otherwise.

Judgment reversed.

McFadden and Boggs, JJ., concur.

Alexandra B. Higgins, for appellees.

       (Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       See OCGA §§ 9-3-33 (battery) and 9-3-71 (a) (medical malpractice). With respect to the breach of contract claim, “the medical malpractice statute of limitation applies to both tort and contract theories of liability when the claim calls into question the conduct of a professional in his area of expertise.” (Punctuation omitted.) Robinson v. Williamson, 245 Ga. App. 17, 19 (1) (537 SE2d 159) (2000).

        McCord v. Lee, 286 Ga. 179, 180 (684 SE2d 658) (2009).

       (Punctuation omitted.) Witherspoon v. Aranas, 254 Ga. App. 609, 614 (2) (b) (562 SE2d 853) (2002), overruled on other grounds by Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 157 (2) (b) (682 SE2d 165) (2009). See also Pryce v. Rhodes, 316 Ga. App. 523, 524-525 (729 SE2d 641) (2012) (assuming fraud and applying the rule in the dental context).

       The trial court referred to the January 2008 date, but the record reflects that MacDowell saw Winston in both November 2007 and on January 8,2008. Neither date is within two years of the filing of MacDowell’s complaint.

       Before and during the litigation, she disputed that the implants were incorrectly placed.

       By contrast, MacDowell’s February 13, 2008 consultation with Arnold, an independent dentist, was sufficient to stop any tolling due to fraud. Her January 2010 complaint was filed within two years of that date.


author: Doyle, Presiding Judge.

text:
    A13A0397.
    JOHNSON v. THE STATE.
    (744 SE2d 921)
   Doyle, Presiding Judge.

After a jury trial, William Holland Johnson, Jr., was found guilty of driving under the influence of alcohol such that he was less safe to do so (“DUI-less safe”), and improper lane change. Johnson appeals, arguing that the trial court erred by (1) denying his motion to exclude evidence of the horizontal gaze nystagmus (“HGN”) test based on the standard stated in Sultan v. State; (2) denying four of his jury charge requests; and (3) admitting evidence of his recorded post-arrest statements. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, the record shows that on January 2, 2010, at approximately 11:40 p.m., an officer was patrolling an area of Forsyth County. The officer was traveling in the left-hand lane of a four-lane road and was approximately 50 to 100 feet behind a gray sport utility vehicle (“SUV’), which was traveling in a right-hand lane that would eventually become a right-turn-only lane. The officer was concerned that the SUV was traveling too quickly to negotiate the right-hand turn and therefore slowed his vehicle to avoid any accident or abrupt lane change; as the officer expected and without using the left-hand turn signal, the SUV moved into the left-hand lane in order to continue straight through the intersection. Immediately after the intersection, there was a gas station, and the road had a turn lane for entering the gas station parking lot, which was separated from the main lane of travel by a white-striped portion of pavement. The SUV then turned into the gas station from the left-hand lane, without signaling, without entering the right-hand turn lane, and instead driving over the white striped area of pavement.

After driving into the parking lot, the SUV then looped back around to the road, and signaled before making a left-hand turn back in the direction it had come in the first place. The officer followed the SUV through the parking lot, and then executed a traffic stop after the SUV pulled back onto the road. After the officer activated his lights, the vehicle pulled into another lot, parking crookedly across two spots, and the officer approached the driver, Johnson.

Upon approaching Johnson, the officer noticed the very strong odor of an alcoholic beverage coming from him and his vehicle, and Johnson’s eyes were bloodshot. Johnson’s speech was normal; however, the officer concluded that the odor of alcohol was emanating from his person after he exited the vehicle. Johnson stated that he had two drinks earlier in the evening, had begun drinking about ninety minutes prior to the stop, and his last drink was about thirty minutes prior to the stop; Johnson then clarified that he had ingested two beers and one glass of wine. The officer performed field sobriety tests on Johnson, who stated that he was not on any medication and did not have any physical ailments that would affect his performance on the evaluations.

The officer administered the HGN test, the one-legged stand, and the alphabet test, but Johnson refused to provide a preliminary breath test in the officer’s alco-sensor. After medically qualifying Johnson, the officer performed the HGN test, which he had conducted on “thousands” of individuals, and he detected six out of six clues of impairment. Based on his observation of Johnson’s driving, as well as his observation of his physical presentation and Johnson’s performance on the field sobriety tests, the officer arrested Johnson for DUI - less safe.

At trial, the State presented to the jury a copy of the officer’s dashboard video. Additionally, the officer’s patrol car had an audio recording device activated when he arrested Johnson, and the recording captured Johnson stating to himself, “I’m really f — ed. I mean, I’m really, really, really, really f — ed,” while in the back of the car.

1. Johnson argues that the trial court erred by denying his motion to exclude evidence of the HGN test because the officer improperly performed the test. We disagree.

The trial court sits as the trier of fact when ruling on a motion to suppress or a motion in limine, and its findings based upon conflicting evidence are analogous to a jury verdict and should not be disturbed by a reviewing court if there is any evidence to support them. When we review a trial court’s decision on such motions to exclude evidence, weconstrue the evidence most favorably to uphold the findings and judgment, and we adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. When the evidence is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. With mixed questions of fact and law, the appellate court accepts the trial court’s findings on disputed facts and witness credibility unless clearly erroneous, but independently applies the legal principles to the facts.
Evidence of a defendant’s performance on an HGN test is considered to be evidence based on a scientific principle or technique. Such evidence is admissible upon a showing by the party offering the evidence that (1) the general scientific principles and techniques involved are valid and capable of producing reliable results, and (2) the person performing the test substantially performed the scientific procedures in an acceptable manner.

Johnson contends that pursuant to Sultan, the trial court should have excluded the results of his HGN test or instructed the jury to disregard those results based on the testimony of his expert witness, who stated that the officer performed the equal tracking portion of the test “too quick.” In Sultan, however, “[t]he officer testified that he probably did not perform the equal tracking portion of the HGN test____” Because the officer in Sultan completely failed to medically qualify the defendant prior to performing the HGN test, this Court held that the results of the test were not admissible because the test was not substantially performed in an acceptable manner.

In this case, on the other hand, the officer testified that he appropriately performed the equal tracking portion of the HGN test, that he medically qualified Johnson before administering the test, and that he appropriately performed the remaining portions of the HGN test, which showed that Johnson exhibited six out of six clues of impairment. Thus, Sultan’s holding does not require reversal in this case, and in light of the evidence that the HGN test was properly performed, the trial court did not err by denying Johnson’s motion regarding the test results. Any conflicting expert testimony or video evidence challenging the officer’s performance of the test goes to the weight of the HGN test results and the officer’s conclusions of Johnson’s impairment, not the admissibility of the HGN test results themselves.

2. Next, Johnson argues that the trial court erred by denying four of his requests to charge, including three charges related to the HGN test and one charge regarding a suspect’s refusal to voluntarily consent to an implied consent test. We disagree.

We review de novo an allegedly erroneous jury instruction, which is a legal question.

(a) The trial court charged the jury that

[t]he [HGN] test about which you heard testimony is based on well-known and medically accepted principles that nystagmus can be caused by ingestion of alcohol. The HGN... test is an accepted, common procedure that has reached a state [of] verifiable certainty in the scientific community and is admissible as a basis upon which an officer can determine whether a driver was impaired by alcohol. You may consider the [HGN] evaluation as a symptom indicative of, but not determinative of the presence of alcohol. In other words, the presence of alcohol is just one factor that might cause [HGN] to occur.
The HGN evaluation of a subject, suspect may be subject to human error in its administration or interpretation. The jury must decide what weight, if any, to give the HGN evaluation. The other field sobriety evaluations about which you heard testimony, such as the one-legged stand and walk-and-turn tests, are not scientific tests but are simply observations of the driver’s behavior by the officer.
In considering the evidence, you should consider all the factors surrounding the administration of such exercises.

“This charge is a correct statement of the law and has been approved by this Court.” Moreover, this charge fully incorporated the language in Johnson’s first request to charge related to the HGN test. His two remaining requests to charge incorporated various principles related to the legal determinations made by a trial court when evaluating the admissibility of evidence of an HGN evaluation and argumentatively phrased statements about various causes of nystagmus other than alcohol ingestion. Although the second requested charge was a correct statement of the law, it was unnecessary for the jury given the adequacy of the charge given. As for the third, it was not a correct statement of the law of this State. Accordingly, there was no error by the trial court in refusing the three charges related to the HGN test requested by Johnson.

(b) Johnson also contends that the trial court erred by refusing his request to charge the jury that the State can obtain a search warrant to test a suspect’s blood for the presence of alcohol in the event that the suspect refuses a State-administered test under the implied consent law. We do not agree that the failure to charge the jury with this principle was erroneous. The court properly charged the jury regarding implied consent law, that a refusal could be admitted into evidence, and that such evidence was not sufficient alone to prove that an individual was guilty of DUI-less safe.

3. Finally, Johnson argues that the trial court erred by admitting post-arrest statements he made in the back of the officer’s cruiser, specifically his statement that “I’m really f — ed. I mean, I’m really, really, really, really f — ed,” because the statement’s probative value was outweighed by its prejudicial affect. We disagree.

We will disturb a trial court’s decision to admit a suspect’s statements only if the determination was clearly erroneous. “OCGA § 24-3-3[] provides that declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” Here, Johnson’s recorded utterance made while in the back of the patrol car waiting to be transported to j ail was within the res gestae of the arrest. In addition, “a defendant’s incriminating statement is admissible when it constitutes an admission against the defendant’s penal interest because a defendant’s declaration against penal interest is the admission of a party-opponent.” That the statement was ambiguous —• the object of his statement may have been the collateral consequences affecting his medical licensure rather than the fact that he was actually less safe to operate a vehicle because of his level of intoxication — was an issue for the jury. Moreover, it is unlikely that any rational juror’s passion would have been unduly inflamed from the mere fact that Johnson used a curse word during the course of an arrest. Accordingly, this enumeration is without merit.

Decided July 3, 2013

Reconsideration denied July 16, 2013.

Head, Thomas, Webb & Willis, William C. Head, Ashleigh B. Merchant, for appellant.

Leslie C. Abernathy, Solicitor-General, Donna S. Gopaul,AmyM. Radley, Assistant Solicitors-General, Inez Grant, for appellee.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-123 (b).

       289 Ga. App. 405, 407 (1) (657 SE2d 311) (2008).

       We note that while the State cites Sultan v. State in its brief on appeal, its legal analysis is otherwise limited to a recitation of the standard of review. Because we are required to address every issue raised on appeal, specific direction to the relevant facts and the controlling authority, along with an explanation of how the law relates to the relevant facts, would be more helpful.

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       (Punctuation omitted.) Parker v. State, 307 Ga. App. 61, 62-63 (2) (704 SE2d 438) (2010), quoting State v. Tousley, 271 Ga. App. 874 (611 SE2d 139) (2005).

       (Punctuation omitted; emphasis supplied.) Sultan, 289 Ga. App. at 407 (1).

       (Emphasis supplied.) Id. at 406.

       See id. at 407 (1).

       See Rowell v. State, 312 Ga. App. 559, 562-563 (2) (a) (718 SE2d 890) (2011). See also Parker, 307 Ga. App. at 64 (2); Duncan v. State, 305 Ga. App. 268, 272 (2) (a) (699 SE2d 341) (2010).

       See Collier v. State, 288 Ga. 756, 761 (1) (a) (707 SE2d 102) (2011) (Nahmias, J„ concurring specially) (explaining that review of an objected to jury charge is de novo, while this Court applies “plain error” review when no objection is lodged). See also Duprel v. State, 301 Ga. App. 469, 472 (2) (687 SE2d 863) (2009).

       Duncan, 305 Ga. App. at 273 (2) (b).

       See OCGA § 40-5-67.1 (b).

       See Sweney v. State, 265 Ga. App. 21, 22 (1) (593 SE2d 12) (2003).

       For eases tried after January 1, 2013, the new Evidence Code, and specifically in this instance, OCGA § 24-8-803, would apply. See Ga. L. 2011, pp. 99, 214, § 101.

       (Punctuation omitted.) Sweney, 265 Ga. App. at 22 (1).

       (Citations and punctuation omitted; emphasis in original.) Teal v. State, 282 Ga. 319, 327 (3) (647 SE2d 15) (2007).