author: BARNES, Presiding Judge.

text:
    A13A1441.
    SMITH v. THE STATE.
    (749 SE2d 395)
   BARNES, Presiding Judge.

After a bench trial, Karen Smith was convicted of driving under the influence of alcohol to the extent she was less safe, in violation of OCGA § 40-6-391 (a) (1). She argues that the trial court erred by refusing to sequester the State’s witnesses during a hearing on the State’s motion in limine and by excluding as irrelevant the results of a blood test she took after she was released from jail. Because the trial court erred in denying Smith’s motion to invoke the mandatory rule of sequestration during a pre-trial evidentiary hearing, we reverse the DUI conviction and remand for a new trial, but find no error in the exclusion of the test.

“On appeal from a criminal conviction that follows a bench trial, the defendant no longer enjoys a presumption of innocence, and we view the evidence in a light favorable to the trial court’s finding of guilt.” (Citation and punctuation omitted.) Hinton v. State, 319 Ga. App. 673 (738 SE2d 120) (2013). So viewed, the evidence showed that in January 2011, two police officers saw Smith swing wide into the turn lane as she turned from one road to another. The officers followed Smith for about a mile and after observing her weave two or three feet over the centerline at least four times, they initiated a traffic stop.

Smith had a strong odor of alcohol on her breath, her eyes were bloodshot, glazed, and watery, and her speech was slow and slurred. She told one of the officers she had not drunk any alcohol but when he said he smelled it, she admitted she had one drink earlier. When he questioned her about the timing and amount of the drink, she said, “I was told not to tell the police anything and I should get a lawyer.” Two of three field sobriety tests indicated Smith was impaired, but she would not follow instructions for the third test. When a third officer arrived at the scene with a portable device to test for the presence or absence of alcohol, Smith only pretended to blow into the device, and the test could not be completed.

All three officers on the scene testified that Smith smelled strongly of alcohol, and one officer testified that Smith initially denied drinking, then when confronted about the odor, admitted having one drink. Another officer testified that, when questioned further about the type and amount of alcohol she had drunk, Smith became evasive. Smith was placed under arrest and ticketed for driving under the influence of alcohol to the extent she was a less safe driver in violation of OCGA § 40-6-391 (a) (1), failure to maintain her lane, and failure to use due care. An officer read the implied consent warning to her, but she refused his request for a blood test. After she was released from jail, Smith obtained a blood test that established she had no marijuana in her system, but did not exclude the presence of alcohol or any other drugs.

Smith was initially charged by accusation with three counts: driving under the influence of alcohol to the extent she was a less safe driver in violation of OCGA § 40-6-391 (a) (1), failure to exercise due care while operating a motor vehicle in violation of OCGA § 40-6-241, and failure to maintain her lane in violation of OCGA § 40-6-48 (1). A month later, in November 2011, the State added a fourth count, charging Smith with driving under the influence of alcohol and drugs, in violation of OCGA § 40-6-391 (a) (4), but in June 2012 it successfully moved the court for an order of nolle prosequi on that fourth count because it had insufficient evidence to prove Smith’s guilt beyond a reasonable doubt.

In July 2012, the case was called for trial. The State made a motion in limine to exclude evidence that Smith tested negative for drugs after she was released from custody, because she was not charged with driving under the influence of drugs and therefore the evidence was irrelevant. The trial court granted the State’s motion, ruling that evidence showing Smith had no marijuana in her system after her release from jail was not relevant to whether she was a less safe driver under the influence of alcohol, and that the admission of this evidence would unnecessarily expand the proceedings.

Smith then moved to exclude evidence that she initially refused to take a State-administered blood test, arguing that she had rescinded her refusal. The trial court denied Smith’s request to invoke the rule of sequestration before she called witnesses to testify on her motion, then denied the motion after hearing testimony from Smith and two of the officers present at her arrest. Smith waived her right to a jury trial, and after hearing evidence from the three officers involved, the trial court found Smith guilty of driving under the influence of alcohol to the extent she was a less safe driver.

1. Smith argues that the trial court erred in refusing her request to invoke the rule of sequestration before hearing witnesses on her motion in limine to exclude evidence that she refused the officers’ request to take a State-administered blood test. Smith testified during the hearing that she initially refused to take a state-administered blood test because she was “in panic mode,” but that after she was handcuffed and placed into the back of the patrol car she changed her mind and told the officer that she would take the test. According to Smith, after the officer told her that it was too late, she asked at the jail and was again told that she no longer had the option to take a state-administered test. She argues that, because the trial court refused to sequester the witnesses before the motion hearing and the arresting officers remained in the courtroom during her testimony, they knew that the sole factual dispute was whether she had rescinded her refusal to take the test and knew what kind of testimony would affect the outcome of the proceedings.

Former OCGA § 24-9-61, which is applicable to this case, provided that “in all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other. The court shall take proper care to effect this object as far as practicable and convenient, but no mere irregularity shall exclude a witness.” Smith points out that the statute applies to “all cases,” which would include evidentiary hearings as well as trials, and argues that the court’s failure to sequester the State’s witnesses was reversible error.

The purpose of the rule of sequestration is to ensure that the testimony of a witness who has not yet testified is not influenced by that of another witness. Childress v. State, 266 Ga. 425, 431 (2) (467 SE2d 865) (1996).

The practice of separating witnesses or, as generally called, “putting under the rule,” is of ancient origin and salutary in the proper administration of justice, the object being, of course, to prevent one witness from being taught by another as to the testimony he should give. . . . The mandate of the law is that in all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other, and, hence, the rule is applicable and mandatory in an interlocutory hearing ....

Poultryland, Inc. v. Anderson, 200 Ga. 549, 561-562 (2) (37 SE2d 785) (1946); see also Hall v. Hobbs, 107 Ga. App. 46, 47 (129 SE2d 209) (1962).

Exceptions to the rule exist. The trial court may allow an investigative officer to remain in the courtroom to assist the prosecutor in “[t]he orderly presentation of evidence.” Hardy v. State, 245 Ga. 673, 674 (266 SE2d 489) (1980). Thus, while application of the rule is mandatory, the trial court has the discretion to grant an exception if “it appears that in making the exception to the rule[,] the fair rights of the opposite party are secured or the impairment of the efficiency of the court avoided by allowing a deputy or other officials, who are witnesses, to remain in the courtroom.” Montos v. State, 212 Ga. 764, 765 (3) (95 SE2d 792) (1956). The trial court’s exercise of its discretion to allow an exception to the rule will not be reversed on appeal unless it was abused. Warner v. State, 281 Ga. 763, 765 (2) (642 SE2d 821) (2007); Dampier v. State, 245 Ga. 427, 432 (6) (265 SE2d 565) (1980).

Further, our appellate courts have held that “[w]hen the rule of sequestration is violated, the violation goes to the credibility rather than the admissibility of the witness’ testimony.” Johnson v. State, 258 Ga. 856, 857 (4) (376 SE2d 356) (1989). If a witness is present despite the invocation of the rule, “[a]ny mere irregularity shall not exclude the witness. The particular circumstances of each case shall control, under the discretion of the court.” (Citation and punctuation omitted.) Gibby v. State, 166 Ga. App. 413, 414-415 (3) (304 SE2d 518) (1983).

But the trial court in this case did not use its discretion to decide that a witness could remain to assist the State or to allow testimony despite an infraction of the rule. It simply held, incorrectly, that the rule of sequestration did not apply until the first witness was called for trial. Under the law’s mandate that a party has the right to examine the opposing party’s witnesses out of the hearing of each other, (Citations and punctuation omitted.) Hall, 107 Ga.App. at 47-48(rule applicable and mandatory during pre-trial proffer of witness testimony). Further, our Supreme Court’s holding in Blankenship v. State, 258 Ga. 43, 46 (9) (365 SE2d 265) (1988), that “[t]he trial court is not required to enforce the rule of sequestration until the presentation of evidence has begun,” does not support the proposition that the rule only applies during trials and not motions hearings. Rather, the court in Blankenship held that the rule applies when witnesses are testifying and not during opening statements and thus did not address the issue of sequestration in the context of pre-trial hearings in which witnesses testify.

the parties are entitled to the benefit of this rule at all stages of the proceedings in the trial of a case, regardless of the purpose of the testimony, and the error in depriving the plaintiff in this case of this substantial right rendered all subsequent proceedings nugatory, requiring the grant of a new trial.

The trial court erred in denying Smith’s request to invoke the rule of sequestration. Accordingly, we reverse Smith’s conviction and remand for a new trial. Poultryland, Inc., 200 Ga. at 562 (2); Hall, 107 Ga. App. at 48.

2. Because the issue may arise again in a new trial, we will address Smith’s contention that the trial court erred in granting the State’s motion in limine to exclude evidence of the blood test Smith obtained after she was released from custody, which was negative for marijuana. Smith argues that the arresting officers believed she was under the influence of drugs, and that their report and investigation led the State to believe initially that it had sufficient evidence to prove beyond a reasonable doubt that she had been operating a vehicle under the influence of drugs to the extent she was less safe to drive. She did not have her alcohol level tested, she asserts, because she did not believe she was being charged with driving under the influence of alcohol. She contends that evidence showing that she had no marijuana in her system was admissible to cast doubt upon the reliability of the officers’ field sobriety evaluations and ability to detect whether a driver was impaired.

“The admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” Davis v. State, 301 Ga. App. 484, 488 (3) (687 SE2d 854) (2009). Evidence is relevant if it tends to prove or to disprove a material fact at issue, and every act or circumstance which serves to explain or throw light upon a material issue is relevant. See Sailor v. State, 265 Ga. App. 645, 648 (2) (595 SE2d 335) (2004).

The elements of the crime of driving while under the influence of alcohol to the extent that it is less safe to drive are: (1) driving, (2) under the influence of alcohol, (3) to the extent that it was less safe for the person to drive. OCGA § 40-6-391 (a) (1); Shaheed v. State, 270 Ga.App. 709, 710 (1) (607 SE2d 897) (2004). In this case, the arresting officer gave Smith a ticket for “DUI Less Safe” in violation of OCGA § 40-6-391 (a) (1). While the State subsequently added a count of driving under the influence of alcohol and drugs in violation of OCGA § 40-6-391 (a) (4), the trial court granted an order of nolle prosequi two weeks before trial, and the State tried Smith only for violating OCGA § 40-6-391 (a) (1) by driving under the influence of alcohol to the extent she was a less safe driver.

Decided October 3, 2013.

Jeffrey R. Filipovits, for appellant.

Rosanna M. Szabo, Solicitor-General, Latawsha Y. Little-Hill, Assistant Solicitor-General, for appellee.

While Smith elicited testimony from the officers establishing that some of her manifestations of impairment indicated drugs instead of alcohol and some indicated impairment from either substance, the issue before the factfinder was only whether she was under the influence of alcohol to the extent she was a less safe driver, not whether she might have also ingested drugs. The blood test she obtained after she was released from jail shed no light on her alcohol impairment, and the trial court did not abuse its discretion in excluding it. See Allen v. State, 229 Ga. App. 435, 439 (2) (c) (494 SE2d 229) (1997) (physical precedent only) (evidence of independent test for alcohol taken eight hours after arrest was irrelevant and properly excluded).

Accordingly, we find no error in the trial court’s grant of the State’s motion in limine to exclude this evidence.

Judgment reversed and case remanded for new trial.

Miller and Ray, JJ., concur.

       Smith was also convicted of failure to maintain her lane and failure to exercise due care, but does not challenge those convictions on appeal.

       The new Evidence Code, which became effective January 1,2013, similarly provides that, with certain exclusions not applicable here, “at the request of a party the court shall order witnesses excluded so that each witness cannot hear the testimony of other witnesses, and it may make the order on its own motion.” OCGA § 24-6-615.

       This exception is codified in OCGA § 24-6-615 (2013), which specifically does not authorize the exclusion of “a person whose presence is shown hy a party to be essential to the presentation of the party’s cause.”


source: Caselaw Access Project

license: Public Domain

text:
    A13A1525.
    HOUSTON v. WAL-MART STORES EAST, L.P. et al.
    (749 SE2d 400)
   BARNES, Presiding Judge.

In this slip-and-fall premises liability case, plaintiff Ronald Houston appeals the trial court’s grant of summary judgment in favor of defendant Wal-Mart Stores East, L.P., and two of its employees, defendants Dawn Atkins and Tim Holt. Because the uncontroverted evidence shows that Houston had equal knowledge of the hazard that caused his fall, the trial court did not err in granting summary judgment to the defendants.

Summary judgment is proper if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). We review the grant of summary judgment de novo and view the evidence in the light most favorable to the nonmovant. Bank of North Ga. v. Windermere Dev., 316 Ga. App. 33, 34 (728 SE2d 714) (2012).

So viewed, the record reflects that at approximately 5:14 a.m. on September 18, 2009, Houston was shopping at a Wal-Mart store in Morrow, Georgia. While pushing his shopping cart through the meat section of the grocery department, Houston walked across some flattened cardboard boxes that had been left on the floor by an employee who had been restocking shelves earlier that morning. Seconds after walking across the flattened boxes, Houston turned around without his cart and began walking back over the same boxes on his way to the other side of a freezer. As he did so, Houston slipped on the boxes and fell to the ground, injuring himself.

Houston subsequently brought this premises liability action against Wal-Mart and two of its two employees, Atkins and Holt, who had been working at the store on the morning of the incident. Following discovery, the defendants moved for summary judgment. The slip-and-fall incident had been captured by one of the store’s security cameras, and the defendants relied upon a DVD recording of the camera footage and screenshots taken from the footage to support their motion. The defendants also relied upon Houston’s deposition testimony in which he admitted that he had seen the flattened cardboard boxes lying on the floor, that he had walked across the boxes once without incident, and that he slipped and fell on the same boxes as he walked back over them.

After reviewing the record and hearing oral argument from the parties, the trial court granted summary judgment in favor of the defendants, concluding that the uncontroverted evidence showed that Houston had equal knowledge of the hazard — i.e., the flattened cardboard boxes lying on the store floor — that had caused his fall. The trial court further concluded that there was no evidence that either Atkins or Holt caused or contributed to Houston’s accident. This appeal followed.

1. We conclude that the trial court committed no error in granting summary judgment to the defendants on the ground that Houston had equal knowledge of the hazard that caused his fall.

An owner or occupier of land must exercise ordinary care to keep his premises safe for invitees. See OCGA § 51-3-1; American Multi-Cinema v. Brown, 285 Ga. 442, 447 (3) (679 SE2d 25) (2009). To prove negligence in a slip-and-fall premises liability case,

a plaintiff must show that (1) the premises owner had actual or constructive knowledge of the hazard; and (2) the plaintiff lacked knowledge of the hazard, despite her exercise of ordinary care, due to actions or conditions within the owner’s control. However, the plaintiff’s evidentiary burden concerning the second prong is not shouldered until the owner establishes that the plaintiff was negligent, that is, she intentionally and unreasonably exposed herself to a hazard of which she knew or, in the exercise of reasonable care, should have known existed. With respect to the second prong, we determine whether the record shows plainly, palpably, and without dispute that plaintiff had knowledge of the hazard equal or superior to that of defendants or would have had equal or superior knowledge had the plaintiff exercised ordinary care for personal safety.

(Citation and punctuation omitted.) LeCroy v. Bragg, 319 Ga. App. 884, 885 (1) (739 SE2d 1) (2013). See Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997).

While there was evidence that Wal-Mart had actual or constructive knowledge of the flattened cardboard boxes on the floor, the uncontroverted evidence shows “plainly, palpably, and without dispute” that Houston had equal knowledge of the presence of the boxes before he slipped and fell on them. As previously noted, during his deposition, Houston admitted that he had seen the boxes on the floor, walked across the boxes once without any problem, and then slipped and fell on the boxes when he chose to walk back over them to get to the other side of a freezer. The DVD recording and screenshots of the incident confirm this version of events. In light of this uncontradicted evidence, we conclude that Houston had as much knowledge of the hazard that caused his injuries as the defendants, and thus he cannot recover. See Barnes v. Morganton Baptist Assn., 306 Ga. App. 755, 757-758 (1) (703 SE2d 359) (2010) (affirming grant of summary-judgment to defendants, where evidence showed that plaintiff was aware of retaining wall and drop-off before choosing to ride bicycle near it); Right Stuff Food Stores v. Gilchrist, 279 Ga. App. 784, 786 (632 SE2d 405) (2006) (reversing denial of summary judgment to defendant, where evidence showed that plaintiff saw gas pump on ground before deciding to walk by it). See generally Ponder v. Brooks, 256 Ga. App. 596, 597-598 (569 SE2d 267) (2002) (“If an invitee knows of the condition or hazard, he has as much knowledge as the proprietor does[,] and then by voluntarily acting in view of his knowledge, he assumes the risks and dangers incident to the known condition.”) (citation and punctuation omitted).

Houston nevertheless contends that summary judgment was inappropriate because even though he saw the boxes lying on the floor, he “did not appreciate the hazard presented by the boxes.” But this is not a case where the specific hazard that caused the plaintiff’s injury was hidden or outside the realm of an ordinary person’s understanding. Rather, large, flattened cardboard boxes in plain and unobstructed view on a store floor are items “which any person with ordinary, common sense would recognize as something that might cause a person to trip, slip, or fall.” (Punctuation and footnote omitted.) Music v. Steamco, Inc., 265 Ga. App. 185, 186 (593 SE2d 370) (2004) (ordinary person would recognize that standing water in plain view might cause a person to slip and fall). See also Landings Assn. v. Williams, 291 Ga. 397, 399-400 (728 SE2d 577) (2012) (ordinary person who had seen small alligators living in and around lagoon in residential community would recognize risk of larger alligators being present and moving from one lagoon to another); Means v. Marshalls of MA., 243 Ga. App. 419, 420-421 (1) (532 SE2d 740) (2000) (physical precedent only) (ordinary person would recognize risk of slipping and falling on “garment debris in plain view on a dressing room floor”). In fact, in Capes v. Dollar General Corp., 256 Ga. App. 101, 102 (567 SE2d 726) (2002), the plaintiff, who fell while stepping over a box lying on a store floor, argued that although she had chosen to step over the box, she still should be able to recover because “the box posed a hazard of which she was unaware.” We rejected her argument because the box was in plain and unobstructed view and thus “nothing prevented [her] from observing the hazard posed.” Id. Given this precedent, Houston’s contention that he did not have knowledge of the specific hazard posed by the flattened cardboard boxes is misplaced.

Furthermore, when a person has successfully negotiated a dangerous condition on a previous occasion, he “is presumed to have knowledge of that condition and cannot recover for a subsequent injury resulting from the hazard.” El Ranchero Mexican Restaurant, No. 10 v. Hiner, 316 Ga. App. 115, 118 (728 SE2d 761) (2012) (plaintiff who slipped on floor could not recover because she had previously walked through slippery area only moments before). See also Ballard v. Burnham, 256 Ga. App. 531, 533 (568 SE2d 743) (2002) (plaintiff who slipped on coins on the floor could not recover because “immediately prior to her fall, she had safely traversed the area in which she thereafter fell”); Lea v. American Home Equities, 210 Ga. App. 214, 215 (1) (435 SE2d 734) (1993) (plaintiff who slipped when walking over wet floor for a second time could not recover). It follows that because the uncontroverted evidence shows that Houston safely traversed the flattened cardboard boxes immediately before his fall, he is presumed to have had knowledge of that hazard and cannot recover for his injuries resulting therefrom. See id. See also Hall v. J. H. Harvey Co., 242 Ga. App. 315, 317 (529 SE2d 444) (2000) (plaintiff who fell over box lying on floor in grocery store could not recover because uncontroverted evidence showed that she had seen and successfully stepped around the same box moments before her fall); Williams v. Sing Bros., Inc., 226 Ga. App. 657, 658 (1) (487 SE2d 445) (1997) (summary judgment to store owner appropriate, where security camera footage indisputably showed that plaintiff slipped and fell while returning “to the dairy case using the exact same path she had traversed moments before”).

Houston argues, however, that even if he was generally aware of the hazard posed by the flattened cardboard boxes, he was distracted at the time of his fall because he was looking at merchandise in a freezer. “But the distraction doctrine does not apply where the plaintiff had actual knowledge of the hazard before the alleged distraction occurred,” as the uncontradicted evidences shows was the situation in this case. Ponder, 256 Ga. App. at 598. See also Yasinsac v. Colonial Oil Properties, 246 Ga. App. 484, 486 (2) (541 SE2d 109) (2000).

Decided October 3, 2013.

Morgan & Morgan, Justin D. Miller, for appellant.

Drew, Eckl & Farnham, Leslie P. Becknell, Adam M. Masarek, Hall F. McKinley III, Michael L. Miller, for appellees.

For these combined reasons, the trial court did not err in concluding that Houston’s knowledge of the hazard that caused his fall was equal to that of the defendants’ knowledge. Houston thus could not succeed on his premises liability claim, and the defendants were entitled to summary judgment. While “routine issues of premises liability . . . are generally not susceptible of summary adjudication,” the grant of summary judgment nevertheless is appropriate in cases like the present one where “the evidence is plain and palpable that the defendants are not liable.” (Citations and punctuation omitted.) LeCroy, 319 Ga. App. at 887 (1).

2. In light of our decision in Division 1, we need not separately address whether the trial court erred in concluding that there was no evidence that either Atkins or Holt caused or contributed to Houston’s accident.

Judgment affirmed.

Miller and Ray, JJ., concur.

       During his deposition, Houston initially claimed that he slipped and fell on a piece of white paper rather than on the flattened cardboard boxes. But, after reviewing the DVD recording and screenshots of the incident, Houston conceded later in his deposition that there was no white paper present and that he had slipped on the cardboard. In his subsequently filed brief opposing the defendants’ motion for summary judgment, Houston did not dispute that he slipped on the flattened cardboard boxes.

       Houston maintains that he “was clearly confused during his deposition regarding the questions posed by [the defendants’] counsel pertaining to whether or not he saw the boxes on the ground . . . before he traversed them.” But there is nothing in Houston’s deposition transcript or otherwise in the record supporting his claim that he was somehow confused during his questioning. At the beginning of his deposition, defense counsel instructed Houston to let her know if he did not understand any of her questions, but Houston never indicated any lack of understanding regarding the questions posed to him that are at issue here. Furthermore, Houston did not file an errata sheet after his deposition stating that he was confused about any question or submit a supplemental affidavit in opposition to summary judgment in which he alleged that he had been confused. Thus, there is simply no evidence of confusion that can be gleaned from the record.

       The present case is distinguishable from cases where there was evidence that the plaintiff lacked knowledge of a difficult-to-see article lying on the floor of the defendant’s store before slipping or tripping over it. See, e.g., Brown v. Wal-Mart Stores, 294 Ga. App. 424, 427 (669 SE2d 221) (2008) (jury question presented where plaintiff slipped on shrink wrap lying on store floor, given that there was evidence that the shrink wrap was clear and was difficult to see from where the plaintiff had been standing); Big Apple Super Market of Rome v. Briggs, 102 Ga. App. 11, 14-15 (115 SE2d 385) (1960) (jury question presented where plaintiff tripped on carton protruding out from base of display counter into narrow store aisle, and there was evidence that plaintiff had not seen the carton before her fall); Kitchens v. Davis, 96 Ga. App. 30, 34-35 (1) (99 SE2d 266) (1957) (jury question existed where plaintiff slipped on articles that merchant had placed on store floor, given that there was evidence that the color of the floor, baskets, and merchandise, combined with the lighting conditions, prevented the plaintiff from seeing the articles).


author: McMillian, Judge.

text:
    A13A0920.
    In THE INTEREST OF C. G. et al., children.
    (749 SE2d 411)
   McMillian, Judge.

The mother of C. G. and C. G. appeals the juvenile court’s termination of her parental rights.

On appeal from a juvenile court’s decision to terminate parental rights, we review the evidence in the light most favorable to the court’s decision and determine whether any rational trier of fact could have found by clear and convincing evidence that the parental rights should be terminated.

(Citation and punctuation omitted.) In the Interest of E. S. K., 299 Ga. App. 35, 35-36 (681 SE2d 705) (2009).

The Department of Family and Children Services (DFACS) first took C. G. and C. G. into custody on April 29, 2011 when the mother was arrested and jailed on a charge of possession of methamphetamine, leaving the children without a custodian. The juvenile court’s initial detention order directed the mother to comply with drug screens as requested by DFACS. On July 7, 2011, the juvenile court issued an order finding that the children were deprived, citing the hearing testimony of an investigator for the Rockdale County Sheriff’s Department, as well as the mother’s testimony. According to the deprivation order, the investigator testified that during the execution of a search warrant on the mother’s residence, police discovered methamphetamine, marijuana, and drug-related items, including a pipe. The methamphetamine was found in a hat on a bed in the mother’s bedroom, within the children’s easy access. The mother told police that the children slept in the room. The mother initially admitted that the drugs were hers, but later denied it.

The deprivation order also indicates that the mother chose to testify at the deprivation hearing after being advised of her Fifth Amendment rights, and she admitted that she had used methamphetamine two weeks before being admitted to a hospital for a stillbirth, which was shortly before the execution of the search warrant. The mother admitted that she needed to “ ‘get herself together’ ” before getting her children back. She said that she had a difficult time staying away from drugs while she lived with her mother, who uses drugs. She acknowledged that her participation in a substance abuse program would play a large role in any determination as to whether her children would be returned to her. The deprivation order directed that DFACS discuss with the mother her options for substance abuse treatment.

A final disposition hearing was held on September 7, 2011, and in the juvenile court’s order dated September 12, 2011, the court found that the mother had done nothing to address her substance abuse since the children had been removed from her custody. The order reflects, however, that the mother may have, at least, moved from her mother’s house to avoid the easy access to illegal drugs she had previously described. The case manager said that she had discussed with the mother the need to obtain treatment for her substance abuse. On August 26, 2011, the mother met with the caseworker to discuss her case plan, and at that time tested positive for illegal drugs; however, the mother denied any drug use. She told the case manager that she was moving back into her mother’s home because her father asked her to “ ‘cop some dope.’ ” Although the case manager scheduled a meeting for August 29 to discuss the mother’s options for treatment and to go over an amended case plan, the mother failed to appear for the meeting. On September 12, 2011, the trial court ordered, nunc pro tunc to September 7, that the mother had until September 21 to seek rehabilitation services or her reunification services would be terminated.

The mother apparently failed to seek substance abuse treatment, and on October 24, 2011, DFACS filed a motion to end the reunification plan. On December 5, 2011, following a hearing, the juvenile court granted that motion, ending DFACS’s reunification efforts. In that order, the juvenile court found that the mother had “consistently” tested positive for the presence of illegal drugs and had missed two appointments to discuss her entry into a substance abuse program since September 7, 2011. The order indicates that the mother met with the case manager on November 23, 2011, and reported that she was six months pregnant. The mother said that she did not need to be in inpatient treatment, but neither had she made any effort to seek outpatient treatment.

On December 23, 2011, the mother was re-incarcerated on the April drug charges. And on February 6, 2012, she pled guilty and was sentenced as a first offender to five years with two years to serve, which would be suspended upon her successful completion of a rehabilitation program and aftercare.

In the interim, DFACS prepared new, nonreunification case plans for the two children, and on April 23, 2012, DFACS filed a petition to terminate the mother’s parental rights.

At the subsequent termination hearing on August 29, 2012, one of the children’s former DFACS caseworkers testified that although the Department had provided the mother the necessary referrals, she had not started any rehabilitation program before her second incarceration in December 2011. She lacked stable housing and employment because she was incarcerated, but DFACS had received information indicating that the mother’s grandmother had offered the mother a place to live after she completed her sentence. The case manager had not contacted the grandmother, nor has she contacted the mother since her re-incarceration in December 2011. Thus, she had no knowledge of her financial circumstances. The case manager indicated that the children had been placed with friends of the family, and their home was being evaluated as a potential adoptive home.

The mother testified that she was on the waiting list to enter the Residential Substance-Abuse Treatment (RSAT) program sponsored by the Department of Corrections. Aprobation officer assigned to the mother’s case described the RSAT program as an intensive six-month inpatient substance-abuse treatment program. The mother cannot have the children with her during this program because it is part of the prison system.

The probation officer further testified that following the mother’s successful completion of the program, she would be expected to participate in six months of probationary aftercare. During the first phase of aftercare, she would be required to meet with her probation officer every week, to submit to weekly drug tests and to attend at least two Narcotics Anonymous (NA) meetings every week. The mother would also see a counselor every other week, who would evaluate her and determine whether further treatment is indicated. During the second phase, her probation meetings and drug tests would scale back to every other week, but she would be required to attend three NA meetings per week instead of two. The program also includes field visits to the mother’s home every month. The caseworker indicated that DFACS would be satisfied with the treatment the mother would receive in the RSAT program and would consider her successful completion of the program as meeting the requirements of her case plan.

The probation officer indicated that the waiting list for this program was six months. At the time of the hearing, the mother had been on the list for five months, and she was slated to be the county’s next female prisoner to enter the program. He estimated that the program had an 80 percent success rate, which he defined as not relapsing during or after completing the program and aftercare.

The mother stated that after completing the RSAT program, she intends to find a source for outside treatment and to live with her paternal grandparents in their home. She had identified two potential substance abuse programs that she believed to be state-funded. She said that she had not had any involvement with illegal drugs since her December 2011 incarceration.

Moreover, during her incarceration, she attended weekly Alcoholics Anonymous (AA) and NA meetings (the only such meetings available to her), earned “trusty” status enabling her to work in the jail’s laundry, and took classes toward completing her GED as well as other offered courses, including one that taught job search skills. Although her last contact with the children was on April 29,2011, she said that she was told she could not have contact with them.

The mother’s paternal grandmother testified that she had a room in her house prepared for the mother to live when she completed the RSAT program. The mother’s grandfather and uncle also reside in the house. The grandmother said that she will expect the mother to attend church with them, to get a job and to keep her room clean. She also has insisted that the mother have nothing to do with her old community or old friends. She would also welcome the children for visits in her home. She has been in contact with the mother and believes she has changed. She has also seen the children at church and said that they seem fine.

The statutory framework for the termination of parental rights sets out a two-pronged test:

In the first prong, the court must decide whether there is present clear and convincing evidence of parental misconduct or inability. OCGA § 15-11-94 (a). Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-94 (b) (4) (A). In the second prong of the termination test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child.

(Citation omitted.) In the Interest of R. N. H., 286 Ga. App. 737, 739-740 (650 SE2d 397) (2007). In determining whether a child is without proper parental care or control when the child is not in the parent’s custody, the court may consider

whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) [t]o develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) [t]o provide for the care and support of the child as required by law or judicial decree; and (iii) [t]o comply with a court ordered plan designed to reunite the child with the parent or parents [.]

(Emphasis supplied.) OCGA § 15-11-94 (b) (4) (C).

Here, the juvenile court found that the children were deprived in light of the mother’s incarceration, unrehabilitated substance abuse, and lack of stable housing and income. Because she was still incarcerated and had not yet begun the rehabilitation program, the court found that this deprivation was likely to continue, and will cause serious harm to the children due to their lack of a bond with her and need for permanency. On this point, the court noted that the children have not seen their mother since April 2011.

The juvenile court then found that termination of the mother’s parental rights was proper under OCGA § 15-11-94 (b) (4) (B) (ii) in that “she has an excessive use of or history of chronic unrehabilitated abuse of intoxicating liquors or narcotics with the effect of rendering her incapable of providing adequately for the children’s physical, mental and emotional needs and moral condition”; under OCGA § 15-11-94 (b) (4) (C) (i) in that she failed to maintain a bond with her children; under OCGA § 15-11-94 (b) (4) (C) (ii) in that she failed to provide for the care and support of the children as required by law or judicial decree; and under OCGA § 15-11-94 (b) (4) (C) (iii) in that she had failed to comply with the court-ordered case plans designed to reunite her with her children. With regard to latter ground, the court found that the mother had not maintained stable housing or employment, had not successfully completed a substance abuse treatment program and had not maintained meaningful contact with the children.

The juvenile court also noted that the children were currently placed with friends of the family, and were bonded to that family and doing well. Ultimately, the court determined that termination of the mother’s parental rights would be in the children’s best interest.

It is well settled that “[compelling facts are required to terminate parental rights.” (Citations omitted.) In the Interest of H. L. T., 164 Ga. App. 517, 519 (298 SE2d 33) (1982). Further,

[w]e proceed in a termination case with the knowledge that there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. The right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.

(Citations and punctuation omitted.) In the Interest of C. S., 319 Ga. App. 138, 144-145 (1) (735 SE2d 140) (2012). See also In the Interest of T. E. T., 282 Ga. App. 269, 269-270 (638 SE2d 412) (2006); In the Interest of T. J. J., 258 Ga. App. 312, 314 (574 SE2d 387) (2002).

We find that the juvenile court’s findings regarding the mother’s parental misconduct or inability are not supported by clear and convincing evidence. As an initial matter, we note that DFACS filed the petition for termination of the mother’s parental rights on April 23, 2012, less than one year after the children were taken from the mother’s custody on April 29, 2011. Accordingly, the evidence does not support the trial court’s findings that the mother failed to maintain a bond with her children, failed to provide support and failed to comply with the DFACS case plans for the requisite statutory period of “one year or longer prior to the filing of the petition for termination of parental rights.” OCGA § 15-11-94 (b) (4) (C). In fact, the record does not contain a copy of any case plan other than the nonreunification case plans developed in January 2012, three months before the termination petition was filed and after the mother was re-incarcerated.

Moreover, the record contains insufficient evidence to support the juvenile court’s findings with regard to excessive or chronic unrehabilitated drug use. Although the juvenile court’s December 5, 2011 order found that the mother “consistently” tested positive for the presence of illegal drugs, the record contains only one reference, in a prior order, to a failed drug test, on August 26, 2011. An earlier order indicated that the mother admitted that she had used illegal drugs a few weeks before the police executed the search warrant on her mother’s house in April 2011. But the record contains no evidence, from the termination hearing or otherwise, with regard to these two instances.

Other than evidence of her guilty plea to the April 2011 drug charge, the only evidence at the termination hearing relating to the mother’s prior use of illegal drugs came in response to the juvenile court’s question regarding a 2003 proceeding involving a third child. The court asked the mother whether allegations in the 2003 petition that the mother used drugs at that time were true, and she replied, “I think so.” When the juvenile court asked the mother’s grandmother the same question, she stated that she did not know and that she had never seen the mother use drugs. And we note that the mother’s February 2012 conviction was treated as a first offense. Additionally, the mother stated that she was attending weekly AA and NA meetings, steps toward addressing her use of illegal drugs. She stated that she had not used illegal drugs since her re-incarceration in December 2011, and DFACS presented no evidence to counter this testimony.

Even if we consider the juvenile court’s recitation of evidence regarding the prior two instances of drug use along with the evidence presented at the hearing, we find that the record falls short of providing clear and convincing evidence to support a finding of excessive or chronic unrehabilitated drug abuse.

Additionally, we find that the record lacks clear and convincing evidence to support the juvenile court’s finding that the cause of the children’s deprivation was likely to continue. Because the record does not contain any reunification case plan, we have no evidence of the case plan goals other than the requirement that she seek treatment for substance abuse. But it is unclear whether or when the mother may have been directed to seek such services prior to the juvenile court’s September 12, 2011 order, which gave her less than two weeks to do so. A little over one month later, on October 24, DFACS filed a motion to pursue a nonreunification plan. Therefore, DFACS gave this mother less than four months from the time her children were taken into its custody before beginning the process of making her loss of custody permanent and less than one year before seeking to terminate her parental rights.

Decided October 4, 2013.

Mumford, Myers & Mooney, Albert A. Myers III, for appellant.

Although the mother failed to seek treatment before she was incarcerated, while in jail, she took advantage of the only substance abuse treatment programs available to her. She also worked toward her GED and held a “trusty” position in the prison laundry. Moreover, shortly after the termination hearing, she was to begin intensive treatment in a program with a high rate of success. After this six-month inpatient program, aftercare was provided to help her achieve her treatment goals. The mother had secured housing following her release from jail, where her children were welcome. She had also participated in a program designed to help her obtain employment after she was released. And although the mother had not had contact with her children in over a year, she said she was told she could not contact them. DFACS presented no evidence to contradict this testimony. Even though the mother was slow to address her issues, by the time of the hearing she had made recognizable progress, was scheduled to begin further intensive treatment a short time later, and had identified concrete steps for the future. Under these circumstances, we find that the juvenile court erred in determining that clear and convincing evidence existed to support a finding that the children’s deprivation was likely to continue.

Accordingly, we reverse the trial court’s order granting the petition to terminate the mother’s parental rights.

Judgment reversed.

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

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny Hannah, Assistant Attorney General, Ashley Willcott, for appellee.

       The current case manager did not testify, although she was present and presumably available to do so.

       We note that the record contains no evidence of any use of intoxicating liquors by the mother.


text:
    A13A0943.
    CARTER v. THE STATE.
    (749 SE2d 404)
   BARNES, Presiding Judge.

A jury convicted Candace Renee Carter of robbery, and she appeals, contending that insufficient evidence corroborated the accomplice testimony presented at trial. She also contends that her trial counsel was ineffective for several reasons. For the reasons that follow, we affirm.

1. Carter contends that the testimony of her accomplice was uncorroborated and thus insufficient to support her conviction. In Carter’s view, the evidence created only a “grave suspicion” of guilt. We disagree.

An appellate court reviews the evidence in a criminal case in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Robinson v. State, 314 Ga. App. 545, 546 (724 SE2d 846) (2012). See also Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence showed that Carter drove her friends Abrianne Suggs and Sharee Harris to a Family Dollar store one evening. Carter waited in the car while Suggs and Harris went inside, where Suggs texted Carter to let her know how many people were in the store. Harris then robbed the employees at gunpoint and got into Carter’s car. Carter drove home, leaving Suggs inside the store. A few minutes after Carter and Harris returned to Carter’s house, Suggs left the store and walked to a nearby Waffle House. She called Carter, who picked her up in a different car, and the two women returned to Carter’s house. Harris gave some of the robbery money to Carter and some to Suggs.

Based on information from a tipster, the lead detective found and downloaded pictures of all three women from Facebook. The investigator reviewed a store video of the robbery and tentatively identified Harris as the person with the gun. The two store employees, who testified at Carter’s trial, then identified Harris as the gunwoman from a photographic lineup. The detective tracked down Suggs and during an interview in his car, Suggs first admitted being in the store when it was robbed and then admitted having caught “a glimpse” of the robber’s face. When the detective showed Suggs the photographic lineup, she acknowledged that she knew Harris and that she had Harris’s phone number and directions to her house in her cell phone.

The detective asked Suggs what she was doing in the area of the robbery since she did not live nearby, and Suggs said that she had been visiting Carter, who gave her a ride to the store to buy some dog food and that Harris rode with them to the store. Suggs said Carter left and then picked her up a few minutes later at a Waffle House. She agreed to show the detective where Carter’s apartment was located and then offered to call her to see if she would meet with him. The detective suggested she tell Carter that police had interviewed her and see how Carter would react.

Suggs called Carter on her cell phone, and the detective listened to the first part of the call through the phone’s speaker. Suggs told Carter that the police knew everything, but Carter did not believe her, stating that if the police knew everything, Suggs would be on her way to jail because it had been a “plot” Suggs had set up. Suggs took the phone off speaker, but the detective still overheard Carter talk about text messages related to the number of employees in the store and Harris leaving fingerprints. Suggs eventually told Carter that she was making the call from a police car, and when Carter did not believe her, the detective took the phone and told Carter he would like to talk to her about an incident at the particular store. Carter told him to come by her apartment, and he drove the quarter-mile there and recorded their conversation. Carter told the detective that she had given Suggs a ride to the store, dropped her off, received a text message about the number of employees in the store, returned to pick up Suggs in the same car, and no one else had been in the car with them.

Harris was subsequently arrested when she admitted robbing the store during the execution of a search warrant at the house where she lived with her parents. She showed the detective the clothes she had been wearing, which matched the clothes worn by the robber in the store video, and said she left the gun, which was a BB gun belonging to one of Suggs’s friends, in Carter’s car. She admitted to her mother that she had spent the money and implicated Suggs, but would not talk about Carter.

Carter agreed to a second interview at the police station, where the detective advised her of her Miranda rights after telling her she was a suspect in the robbery. This time, Carter admitted that Harris had also ridden to the store with her, that Harris and Suggs went inside, that Harris came out alone and the two of them left, and that she returned to pick up Suggs in a different car because the other vehicle was out of gas.

Both Suggs and Carter changed their stories a number of times during the course of the investigation. When questioned, Harris admitted that she had robbed the store, and Suggs admitted to being inside as the lookout. Both Suggs and Harris testified that Carter participated in the robbery as the driver, and Harris testified that Carter received some of the stolen money. Harris also testified that Carter had recently asked her if she “would ever rob for her.” Carter admitted to driving her friends to and from the store, but she denied knowing about the robbery.

All three women were indicted for armed robbery. Suggs and Harris entered guilty pleas for the lesser included offense of robbery, and Carter proceeded with a jury trial.

Carter contends that the evidence against her was insufficient because it consisted solely of the uncorroborated testimony of Harris, an accomplice. Generally, the testimony of a single witness is sufficient to establish a fact, but in felony cases where the only witness is an accomplice, the accomplice’s testimony standing alone is insufficient. Former OCGA § 24-4-8, repealed and reinstated as OCGA § 24-14-8 (2013). However, “corroborating circumstances may dispense with the necessity for the testimony of a second witness.” Former OCGA § 24-4-8. The corroborating evidence must be independent of the accomplice’s testimony and must connect the defendant to the crime, but it need not be sufficient by itself to warrant a conviction. Etchison v. State, 266 Ga. App. 528, 528-529 (1) (597 SE2d 583) (2004). The testimony of an additional accomplice may constitute corroboration of the first accomplice’s testimony, and whether that evidence sufficiently corroborated the first accomplice’s testimony was an issue for the jury. Williams v. State, 280 Ga. 584, 586 (1) (630 SE2d 370) (2006).

Here, both co-defendants testified that Carter drove them to the store, waited outside while they both went in, left Suggs behind and drove away with Harris, and then returned to pick up Suggs in a different car a few minutes later. Suggs testified that she texted Carter to tell her how many people were in the store, and Harris testified that she gave some of the robbery money to Carter. Both testified that Carter participated in the robbery in her capacity as the driver. Suggs’s testimony corroborates that of Harris and vice versa. See Hillman v. State, 296 Ga. App. 310, 312-313 (1) (674 SE2d 370) (2009); Crowe v. State, 83 Ga. App. 325, 329 (63 SE2d 682) (1951). Furthermore, the detective testified about the conversation he overheard between Suggs and Carter regarding text messages about fingerprints and the number of employees in the store. And while Carter denied participating in the robbery, whether she did so was simply a question of fact for the jury to decide.

The credibility of the testimony of witnesses is for the jury, and all conflicts in the evidence are resolved in favor of the verdict. While there might be discrepancies as to many of the details of the crime, as to the core issue — was the defendant a participant? — there was no such conflict in the testimony of the accomplices so as to demand a finding for [Carter] or to require the grant of a new trial.

(Citations and punctuation omitted.) Crawford v. State, 210 Ga. App. 36, 39 (2) (435 SE2d 64) (1993). The corroborating evidence in this case was more than slight and was sufficient to authorize the jury to find that Suggs’s testimony was corroborated.

2. Carter maintains that she received ineffective assistance of counsel in three related errors. She contends that counsel should have objected to the investigating officer’s testimony repeating the anonymous tipster’s statements, to the prosecutor’s questioning that elicited testimony about Carter’s pre-arrest silence, and to the prosecutor’s closing argument emphasizing Carter’s pre-arrest silence. To prevail on a claim of ineffective assistance of counsel,

appellant must show that her attorney’s performance was deficient and that, but for such deficiency, there is a reasonable probability that the outcome of her trial would have been different. In applying this test, we accept the trial court’s findings of fact and credibility determinations unless they are clearly erroneous, but we independently apply the proper legal principles to the facts.

(Citation omitted.) Waits v. State, 282 Ga. 1, 5 (4) (644 SE2d 127) (2007). To establish that the deficient performance prejudiced the defendant

requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984).

(a) Carter complains that trial counsel failed to object to hearsay testimony from the investigating officer when he repeated the anonymous tipster’s out-of-court statements during his testimony. At the hearing on Carter’s motion for a new trial, Carter’s trial counsel testified that he had no strategic reason for not objecting to the testimony but simply missed the opportunity to make it. Under former OCGA § 24-3-2, “facts to explain conduct and ascertain motives, . . . shall be admitted in evidence not as hearsay but as original evidence.” But “police conduct is not a relevant issue . . . where a confidential informant has provided information which initiates an investigation.” (Citation and punctuation omitted.) Brown v. State, 274 Ga. 31, 37 (2) (549 SE2d 107) (2001).

[H] ear say testimony explaining an investigating officer’s conduct is rarely admissible because the officer’s reason for initiating or continuing an investigation is not generally a relevant inquiry at trial. In contrast, the motive and conduct of the witness who first links a suspect directly to the crime often are relevant.

Pruitt v. State, 274 Ga. 708, 711 (2) (b) (559 SE2d 470) (2002).

Carter asserts that trial counsel’s performance was deficient because he should have objected to the anonymous caller’s statements to the investigating officer as inadmissible hearsay in violation of the Sixth Amendment Confrontation Clause, which subjected her to a trial “based on rumor, gossip [,] and speculation.” She claims prejudice because this testimony was not cumulative of other admissible evidence.

The State concedes that the hearsay evidence about the anonymous tipster was not necessary to explain the officer’s conduct and that trial counsel’s failure to object to it “was likely deficient,” but argues that Carter was not prejudiced by the statement because it merely established why and how the officer began investigating Harris and Suggs. It points to direct evidence from both Harris and Suggs that Carter was involved in the robbery and to Carter’s own admission that she was present when the robbery occurred.

Carter responds that the anonymous tipster’s statement that Carter participated in the robbery was the only evidence other than Harris’s testimony that implicated her, and thus it is highly probable that the detective’s testimony contributed to the verdict. But as discussed in Division 1, the jury would have been authorized to conclude that Harris’s testimony was corroborated in several respects unrelated to the tipster. Suggs testified that Carter drove her and Harris to the store, received text messages suggestive of a crime, left with only Harris after the robbery, and retrieved Suggs from a different location in a different car a few minutes later. The detective also testified that Carter admitted these facts to him. If the detective had simply testified that his investigation led him to question Suggs, Harris, and Carter, the incriminating evidence he gathered from them would have been the same.

Assuming that ... an objection would have been sustained, in light of the other testimony produced at trial, it is highly probable that the testimony that the investigating officer [decided to question Harris and Suggs] in response to an anonymous tip did not contribute to the jury’s verdict.

Felton v. State, 283 Ga. 242, 246 (2) (d) (657 SE2d 850) (2008).

(b) Carter contends her trial counsel was ineffective for failing to object to questions from the State which elicited testimony from Carter and the detective about Carter’s pre-arrest silence. The following exchange took place between the State and the detective:

Q: Did the defendant mention — well, she admitted to driving Abrianne to the Family Dollar, correct?
A: Correct.
Q: Did she mention anybody else in the car at that point?
A: No, because I specifically asked her who else was in the car with her. She said just me and Abrianne, never mentioned another person in the car.
Q: Did she ever change her story?
A: The next time I interviewed her, which was a few days down the road, her story did change about which car she took to the Family Dollar; also who was in the car with her, that also changed.
Q: Did you ask her why she had not mentioned Sharee Harris in your first conversation?
A: Yes, I did. She said because you never brought up her name, so I didn’t mention, I didn’t bring up her name.

Carter argues that the State also improperly questioned her about her pre-arrest silence by asking her why she did not initially tell the detective that her son had been in the car with her on the night of the robbery, with no objection from her trial counsel. Carter testified on direct examination that she did not tell the detective during the first interview that Harris and her son had been in the car with her the night of the robbery because he had not asked her if they had been there; he only asked about herself. When he asked her in the second interview to tell him about everyone in the car, then she told him about Harris and her son.

During cross-examination, the State asked Carter if she had mentioned to the detective that Harris and her son were in the car, and when she said no, the State asked:

Q: Why? Because the officer didn’t ask you about those people?
A: Correct.
Q: So when somebody asks you who you were with, you’re only going to answer whoever they ask you?
A: Correct, considering the situation, yes.
Q: So the question who all was with you does not imply, well, maybe he’s asking everybody who was in the car? Did that occur to you?
A: No. Like I said, considering the situation, I just —
Q: So when he asked you who was in the car, you said me and Abrianne; right?
A: Yes.
Q: And we know now that Sharee was also in the car; right?
A: Correct.
Q: You did not tell the officer that the first time?
A: Correct.
Q: And you claim now that your son was in the car; correct?
A: Correct. He was.
Q: And you did not tell the officer that either; correct?
A: Correct.

The State also questioned Carter about not telling the officer at first about receiving a text message from Suggs about Harris leaving fingerprints at the scene, “just like [she] didn’t think of mentioning that Sharee Harris was in the car” or mention that her son was in the car.

After the defense rested, the State recalled the detective and played an audio recording of Carter’s first interview, during which Carter said she dropped off Suggs at the Waffle House and picked her up from there in her sister’s Impala, never mentioning the Family Dollar store until the second interview. Carter returned to the witness stand for surrebuttal and explained that her stories were inconsistent because she had not realized at first that the detective was asking her about the night of the robbery. On cross, after questioning her about her confusion over which night the detective was asking about, the State asked Carter:

Q: At what point during that [first] interview did you tell him Sharee [Harris] was in the car?
A: I didn’t.
Q: At what point in that interview did you tell him your son was in the car?
A: I didn’t, because I didn’t know what day it was.
Q: I seem to recall hearing on there [in the recording of the first interview] you making the statement, “I want to give you as much info as possible.” Do you remember making that statement?
A: I sure did.
Q: Is it fair to say you did nothing of the sort?
A: Of course, because I had no idea of what was going on.

Carter’s trial counsel testified at the motion for new trial hearing that he was not pursuing a trial strategy by failing to object to these questions, but simply had not recognized them as impermissible comments on Carter’s right to remain silent. Carter claims that her trial counsel’s failure to object constituted ineffective assistance because the prosecutor’s questions were aimed directly at the heart of her defense—lack of knowledge — and that the detective’s testimony regarding her silence created an inference that her failure to tell the officer that her son and Harris were in the car was an admission of guilt. The State responds that Carter was “anything but silent,” “willingly answered the investigator’s questions,” and simply gave “inconsistent answers and conflicting versions of events.”

Former OCGA § 24-3-36 of the old Evidence Code provided that “[acquiescence or silence, when the circumstances require an answer, a denial, or other conduct, may amount to an admission.” In Mallory v. State, 261 Ga. 625, 630 (5) (409 SE2d 839) (1991), overruled on other grounds sub nom. Chapel v. State, 270 Ga. 151, 155 (4) (510 SE2d 802) (1998), our Supreme Court held that “a comment upon a defendant’s silence or failure to come forward ... will not be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense.” In recent opinions, the Supreme Court of Georgia noted that former OCGA § 24-3-36 was repealed by the new Evidence Code, but the Court specifically did not rule on Mallory’s continued viability under the new Code because that issue was not squarely before the Court. See Romer v. State, 293 Ga. 339, 343 (2), n. 4 (745 SE2d 637) (2013); Yancey v. State, 292 Ga. 812, 817 (2), n. 9 (740 SE2d 628) (2013).

However, this case is not squarely governed by the principle in Mallory prohibiting mention of a defendant’s silence or failure to come forward. Carter was not silent and did not fail to come forward. She willingly talked to the detective when he drove to her apartment, she voluntarily came to the police station and answered further questions after being advised of her right to remain silent, and she never invoked her right to remain silent. Thus, “the Mallory principle did not require the exclusion of testimony about [Carter’s] failure” to mention during the first interview that Harris was in the car or to mention during either interview that her son was in the car. See Yancey, 292 Ga. at 817 (2) (permissible to ask defendant who voluntarily came to police station and made statement why he would not draw a diagram of crime scene upon request of investigating officers); Curry v. State, 291 Ga. 446, 451 (3) (729 SE2d 370) (2012) (permissible to ask defendant who did not invoke right to remain silent why he failed to respond to particular questions during interview); McMichen v. State, 265 Ga. 598, 606 (11) (a) (458 SE2d 833) (1995) (questions about why defendant did not mention self-defense claim during voluntary statement were proper inquiries into the inconsistency between voluntary statements and testimony at trial).

“[S]ince appellant spoke with police without ever invoking [her] right to remain silent, the prosecutor’s line of questioning did not constitute impermissible commentary on appellant’s right to remain silent.” Gilyard v. State, 288 Ga. 800, 802 (2) (708 SE2d 329) (2011). Accordingly, even a timely objection to the testimony about which Carter complains would have been overruled, and trial counsel was not ineffective for failing to make such an objection. As a matter of law, a failure to interpose a meritless objection does not amount to unreasonable performance. Bradley v. State, 292 Ga. 607, 614 (5) (740 SE2d 100) (2013).

(c) Finally, Carter contends her trial counsel was ineffective for failing to object when the State argued in closing that Carter’s explanation for not telling the detective that Harris was in the car the night of the robbery because she was confused about the dates and other omissions was not credible. “In any event, because evidence about the failure to [disclose these facts to the detective] was [properly] admitted, it was not improper for the prosecuting attorney to reference that evidence in closing.” Yancey, 292 Ga. at 818 (3). “[A] lawyer has wide latitude in closing argument to remark upon the evidence that has been adduced at trial, and he may draw reasonable inferences or deductions from the evidence.” (Citations and punctuation omitted.) Id. The State’s argument was a fair commentary upon the evidence introduced at trial, and if Carter’s trial counsel had objected, the trial court in its discretion could have overruled it. There being no merit to such an objection, again, Carter’s trial counsel was not ineffective for failing to make it. Bradley, 292 Ga. at 614 (5).

Decided October 4, 2013

Brown & Gill, Angela B. Dillon, Frances C. Kuo, for appellant.

Daniel J. Porter, District Attorney, John A. Warr, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller and Ray, JJ., concur.

       Carter was tried in 2012, when the former Evidence Code applied. As of January 1, 2013 the old Code stood repealed, and the new Evidence Code became applicable to trials, motions, and hearings conducted after that date. See Ga. L. 2011, p. 99, § 101.We offer no opinion regarding the hearsay provisions in the new Code, which are found in Chapter 8 of Title 24.

       Former OCGA § 24-3-36 was also repealed by legislation enacting the new Evidence Code. The new Code redefines admissions in OCGA § 24-8-801 (d) (2).


author: Branch, Judge.

text:
    A13A0995.
    A13A0996.
    A13A1170.
    A13A1171.
    A13A1172.
    A13A1173.
    A13A1773.
    A13A1774.
    A13A1775.
    A13A1776.
    YOUNG v. THE STATE. KOMER v. THE STATE. FISHER v. THE STATE. HABIB v. THE STATE. KIENZLE v. THE STATE. ODLE v. THE STATE. ANTHONY v. THE STATE. WECKBACK v. THE STATE. OSBORNE v. THE STATE. SIMMONS v. THE STATE.
    (749 SE2d 423)
   Branch, Judge.

In each of these ten DUI cases, we granted interlocutory review of the trial court’s consolidated decision to deny the defendants’ similar motions to determine the relevance and materiality of the source code of the Intoxilyzer 5000 in connection with the defendants’ attempt to secure production of that proprietary source code from CMI, Inc., the machine’s manufacturer, in Kentucky. We affirm.

Each appellant before us was arrested in Athens-Clarke County for driving under the influence of alcohol and was given an alcohol breath test on an Intoxilyzer 5000. Based on the results of the test, each appellant was charged with DUI per se under OCGA § 40-6-391 (a) (5). In each case, the appellant filed a motion seeking a determination of relevance and materiality of the source code of the Intoxilyzer 5000 in order to facilitate either an out-of-state subpoena for production of the source code, an order requiring production of the source code, or a subpoena duces tecum for an out-of-state witness and the source code. The trial court conducted a consolidated hearing on the ten separate motions at which four witnesses testified: appellant Habib, two defense experts, and one expert for the State. Following the hearing, the trial court concluded that the appellants had not established that the source code was material under the Supreme Court of Georgia’s decision in Davenport v. State, 289 Ga. 399, 400 (711 SE2d 699) (2011), and accordingly it denied the motions. This Court granted the defendants’ applications for interlocutory review.

1. The appellants first contend that the trial court failed to apply the relevant law found in Davenport regarding the circumstances under which an out-of-state witness is deemed material. We disagree.

Because “process issued by Georgia courts does not have extraterritorial power,” Georgia, like the 49 other states, enacted the Uniform Act to Secure the Attendance of Witnesses from Without the State (the “Uniform Act”), OCGA § 24-13-90 et seq. (Citation omitted.) Davenport, 289 Ga. at 400. The Uniform Act provides the statutory means to compel an out-of-state witness to testify at, or to bring relevant documents to, criminal proceedings in Georgia. See OCGA § 24-13-94 (a). And an out-of-state corporation is considered a witness under the Uniform Act. See Yeary v. State, 289 Ga. 394, 396-397 (711 SE2d 694) (2011) (“an out-of-state corporation maybe ‘a person’ that is a material witness under the Uniform Act and may be determined to be in possession of material evidence”).

Under the Uniform Act, a party desiring to secure the attendance of an out-of-state witness in a prosecution or grand jury investigation pending in a Georgia court may request that the court issue a certificate of materiality regarding that witness. OCGA § 24-13-94 (a). “The Georgia trial judge presented with a request for a certificate is charged with deciding whether the sought-after witness is a ‘material witness.’ ” Davenport, 289 Ga. at 402-403. In Davenport, the Supreme Court defined “material witness” as “ ‘a witness who can testify about matters having some logical connection with the consequential facts, [especially] if few others, if any, know about these matters.’ ” Id. at 404, quoting Black’s Law Dictionary (8th ed. 2004).

The Supreme Court has recently applied Davenport to a case similar to those before us. See Cronkite v. State, 293 Ga. 476 (745 SE2d 591) (2013). In that case, Cronkite filed a motion under the Uniform Act to obtain “through the testimony of an out-of-state witness, the source code for the Intoxilyzer 5000.” Id. The Supreme Court explained that under Davenport, a defendant seeking to show that an out-of-state witness was a material witness regarding the source code of the Intoxilyzer 5000 is “required to show that the witness’ testimony regarding the source code [bears] a logical connection to facts supporting the existence of an error in [the defendant’s] breath test results.” Id. at 478. The parties stipulated that Cronkite had a surgical implant and a retainer in his mouth at the time of his breath test, and Cronkite argued that his implant and retainer could allow alcohol to remain in his mouth. Id. Finally, Cronkite’s expert testified that

the Intoxilyzer 5000 software is designed to generate error messages in certain circumstances where an erroneous reading may occur, including circumstances involving the presence of alcohol in the mouth.

Id.

The Supreme Court held that this showing was insufficient because Cronkite

presented no evidence that mouth alcohol was present during his breath test such that an error message should have been generated that was not generated____Nor did Cronkite point to any other evidence of facts supporting the existence of a possible error in his specific breath test results such as discrepancies in the operation of the Intoxilyzer 5000 machine itself.

Cronkite, 293 Ga. at 478 (“the mere possibility that alcohol can remain present in the mouth due to the existence of a surgical implant and retainer does not amount to evidence of facts pointing to the actual existence of excess alcohol in the mouth at the time of Cronkite’s breath test that should have produced an error message from the Intoxilyzer 5000 that was not produced”) (emphasis in original). As a result, “he made no logical connection between possible problems in the source code and any consequential facts in his case that would have made the out-of-state witness’ testimony regarding the source code ‘material’ here.” Id. at 478-479. The Supreme Court therefore concluded that the trial court had not abused its discretion by concluding that Cronkite had failed to show that the proposed witness was material under the Uniform Act and Davenport.

In each of the ten almost identical orders issued in June 2012 in the present cases, the trial court applied Davenport and found that the evidence presented at the hearing did not establish the materiality of the source code, that is, that the evidence did not establish that the source code was logically connected with the consequential facts. In so doing, the trial court found that the testimony of Thomas Workman — one of the two defense experts — was “less than credible.” We review the trial court’s decision for abuse of discretion. See Cronkite, 293 Ga. at 479.

As shown below, only appellant Habib introduced specific evidence attempting to establish the existence of an error in his breath test results. The remaining nine appellants only offered expert testimony generally that “the source code of the machine is logically related to the consequential fact of the reliability and accuracy of the result generated by the Intoxilyzer 5000.” These nine failed to present any evidence of facts supporting the existence of an error in their specific breath test results. Accordingly, under the rules established by the Supreme Court in Davenport and Cronkite, those nine appellants failed to show that the source code for the Intoxilyzer 5000 bears a logical connection with the consequential facts. The trial court therefore did not abuse its discretion by concluding that the source code, or a witness testifying to the source code, was not material under the Uniform Act with regard to these nine appellants.

As for Habib, he presented evidence that at the time he was tested on the Intoxilyzer 5000 he was crying and hyperventilating. And defense expert Workman testified that Habib’s crying and hyperventilation “could” have led to an inaccurate breath test result and that it would be necessary to see the source code in order to investigate further that possibility. He also testified that “[i]t’s pretty well established that a person who is hyperventilating will produce a higher breath result. That’s reflected in the literature.” He asserted that the source code “would help quantify whether the machine makes any adjustments for that and, if so, what adjustments are made, are they made up or are they made down and end results and were they made in the proper direction.” But, as stated above, the trial court found that Workman’s testimony was not credible. Without Workman’s testimony, we are left with only the mere possibility that Habib’s crying and hyperventilation could have produced an erroneous breath test result, which is insufficient to establish the materiality of the source code under Davenport. See Cronkite, 293 Ga. at 477.

Accordingly, because the defendants, including Habib, failed to present any evidence of facts supporting the existence of an error in their breath test results as required by Davenport, the trial court did not abuse its discretion when it determined that Habib failed to show that CMI was a material witness under the Uniform Act.

2. The appellants contend that by failing to grant a certificate of materiality, the trial court violated their state and federal constitutional rights to due process, compulsory process, and a fair trial. Because, as shown above, the Uniform Act provides the procedure for compelling an out-of-state witness to testify at, or to bring relevant documents to, criminal proceedings in Georgia, we interpret this enumeration as an attack on the constitutionality of the Uniform Act or specific provisions therein. And because the trial court did not specifically rule on the constitutionality of the Uniform Act or any of its provisions, the issue cannot be considered on appeal. Darby v. State, 239 Ga. App. 492, 495 (2) (b) (521 SE2d 438) (1999) (appellate review precluded where constitutional question was raised in a motion but not explicitly ruled on in the trial court); see also Marr v. Ga. Dept. of Ed., 264 Ga. 841 (452 SE2d 112) (1995).

3. The appellants contend that the trial court erred because the appellants’ “proffers, affidavits, [] and testimony alone and in combination established materiality, and because the State failed to provide any evidence to rebut that materiality.” A review of their briefs shows that the appellants are arguing in essence that the trial court should have accepted their counsels’ statements, i.e., their proffers, that the source code was material to their defense and that any evidence on the matter of materiality was not necessary. This enumeration is controlled by Division 1 of this opinion and Cronkite, which requires evidence of facts to show that the proposed witness is material.

4. Finally, the appellants contend the trial court erred by failing to follow certain federal case law. But we are tasked here with construing and applying the terms of the Uniform Act as codified in Georgia. And, in the absence of a federal question, this Court is not normally bound by federal court decisions except those of the United States Supreme Court, especially if pertinent Georgia authority exists. See Sanchez v. State, 234 Ga. App. 809, 810, n. 1 (508 SE2d 185) (1998); Rodgers v. First Union Nat. Bank, 220 Ga. App. 821, 822 (1) (a) (470 SE2d 246) (1996); T.G. Stegall Trucking Co. v. Tower Lines, 135 Ga. App. 286, 288 (5) (217 SE2d 488) (1975). Here, the construction and application of the Uniform Act as codified in Georgia is controlled by the Supreme Court of Georgia’s decisions in Davenport and Cronkite. And in Division 1, we applied that law. Moreover, the cases cited by appellants are distinguishable, in large part because none concern the Uniform Act.

Decided October 4, 2013

Head, Thomas, Webb & Willis, William C. Head, Gregory A. Willis, Frank T. Gomez, Daniels & Rothman, Jeffrey A. Rothman, Matthew W. Kilgo, for appellants.

Carroll R. Chisholm, Jr., Solicitor-General, Keenan R. Howard, Assistant Solicitor-General, for appellee.

Judgments affirmed.

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

       “The ‘source code’ consists of human-readable programming instructions that play a role in controlling the internal calibration of the Intoxilyzer 5000 machine.” Cronkite v. State, 293 Ga. 476, 477, n. 2 (745 SE2d 591) (2013).

       In Case Nos. A13A0995 and A13A1170, the defendants each filed a motion seeking production of the source code and asked the court to find that the source code was relevant and material to the defendant’s defense. In Case No. A13A1170, the defendant amended his motion to indicate that he was seeking to serve several subpoenas duces tecum. In Case Nos. A13A0996 and A13A1171, the defendants each filed a motion seeking a finding that the source code was both relevant and material to the defendant’s prosecution in order to facilitate the defendant filing an out-of-state subpoena on CMI, thereby requiring CMI to produce the source code and other tools necessary to read and test the source code; the motions also asked the court to order production of the source code and the related items. In Case No. A13A1171, the defendant amended the motion to state that the request was being made pursuant to former OCGA § 24-10-90 et seq., the Uniform Act to Secure the Attendance of Witnesses from Without the State, to obtain a subpoena duces tecum from the foreign court for an out-of-state witness to appear before the Georgia court to bring the source code and other requested items. In Case Nos. A13A1172, A13A1173, A13A1773, A13A1774, A13A1775, and A13A1776 the defendants each filed a petition under former OCGA § 24-10-94.

       Habib, the only defendant to testify at the hearing, testified that he has suffered from anxiety since he was in twelfth grade and that he was on medications at the time of his arrest as a result. He testified that he was very emotional and was crying and hyperventilating when he was tested on the Intoxilyzer 5000. As a result, he had to blow into the machine twice in order to obtain a reading. Although there is some indication in the brief of appellant Komer that she also was crying and hyperventilating during her test, the citation to the record does not reveal any such evidence, and we find none.

       As of January 1, 2013, Georgia’s new Evidence Code has moved the provisions of the Uniform Act from former OCGA §§ 24-10-90 — 24-10-97 to current OCGA §§ 24-13-90 — 24-13-97. The provisions of former OCGA § 24-10-94 can now be found in OCGA § 24-13-94.

       OCGA § 24-13-94 (a) provides in full:
      If a person in any state which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions or grand jury investigations commenced or about to commence in this state is a material witness in a prosecution pending in a court of record in this state or in a grand jury investigation which has commenced or is about to commence a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure attendance in this state. This certificate shall be presented to a judge of a court of record in the county in which the witness is found.

       The Supreme Court explained that the term “consequential facts” as used in Davenport “deal with whether the Intoxilyzer 5000 may have generated erroneous results from Cronkite’s breath test.”

       Although Habib testified at the hearing, nothing in this opinion should be interpreted as holding that defendants are required to testify under these circumstances. That issue is not before us.

       The second defense expert did not offer testimony regarding Habib’s crying and hyperventilation.

       There are no applicable affidavits in the record and therefore no affidavits for us to review.

       The case of United States v. Budziak, 697 F3d 1105 (9th Cir. 2012), involved whether a federal district court erred under Rule 16 of the Federal Rules of Criminal Procedure by denying discovery of an FBI-modified version of commercially available software that the FBI had used to remotely download evidence from the defendant’s computer and which may have altered the evidence on his computer. Id. at 1111-1112 (V). Although Rule 16 turned on the “materiality” of the evidence, the term was defined differently under applicable federal law than the definition of a “material witness” found in the Uniform Act. Id. In United States v. Liebert, 519 F2d 542 (3d Cir. 1975), the Third Circuit addressed “[w]hether pretrial discovery may he used to secure extrinsic evidence to impeach the reliability of computer printouts which are the fundament of the prosecution’s case.” Id. at 543. But, as in Budziak, the issue turned on application of Rule 16 of the Federal Rules of Criminal Procedure. Id. at 546-547 (III). Finally, Budziak, Liebert, and United States v. Dioguardi, 428 F2d 1033 (2d Cir. 1970), involved information in the possession of the prosecuting government, unlike the present case in which an out-of-state entity possesses the desired information; the present case is therefore distinguishable because “it is not within the power of the Georgia courts to compel the attendance of witnesses who are beyond the limits of the [s]tate.” Minder v. Georgia, 183 U. S. 559, 562 (22 SCt 224, 46 LE 328) (1902). See also Wilkerson v. State, 139 Ga. App. 725, 727 (229 SE2d 529) (1976) (Uniform Act enacted in response to United States Supreme Court decision in Minder).


text:
    A13A1029.
    GREEN v. THE STATE.
    (749 SE2d 419)
   BARNES, Presiding Judge.

Deshawn Rahmel Green appeals the trial court’s order denying his motion to withdraw his guilty plea, and contends that trial counsel was ineffective and that he did not knowingly and voluntarily enter the plea. Finding no error, we affirm.

After sentencing, “a guilty plea may only be withdrawn if the defendant establishes that such withdrawal is necessary to correct a manifest injustice — ineffective assistance of counsel or an involuntary or unknowingly entered guilty plea.” (Footnote omitted.) Wilson v. State, 302 Ga. App. 433, 434 (1) (691 SE2d 308) (2010). The trial court is the final arbiter of all factual issues raised by the evidence, and its refusal to allow a withdrawal will not be disturbed absent a manifest abuse of discretion. Lawton v. State, 285 Ga. App. 45, 46 (645 SE2d 571) (2007).

Green was indicted for attempted distribution of marijuana, unlawfully using a telephone to facilitate a violation of the Georgia Controlled Substances Act, simple assault, attempted robbery by force, and obstruction of an officer. At his plea hearing, Green pled guilty to unlawfully using a telephone to facilitate a violation of the Georgia Controlled Substances Act, attempted robbery by force, and knowingly and wilfully obstructing a law enforcement officer. The attempted distribution of marijuana and simple assault were nolle prossed. The State recommended a sentence of fourteen years with five to serve, a fine, and community service at the court’s discretion. After confirming that Green understood the nature of the negotiated plea and wished to proceed, and also that his plea was freely and voluntarily entered, the trial court sentenced Green to fourteen years with four to serve in confinement.

1. Green first contends that the trial court erred in denying his motion to withdraw his guilty plea because his trial counsel was ineffective. We do not agree.

In the context of an ineffective assistance of counsel claim, in order to withdraw a guilty plea, “the defendant must satisfy both parts of the two-part test applied by Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).” Hammett v. State, 297 Ga. App. 235, 236 (676 SE2d 880) (2009).

[T]he defendant must show (1) that counsel’s performance was deficient because it fell below an objective standard of reasonableness, and (2) that the defendant was prejudiced because, but for the deficient performance, there was a reasonable probability the defendant would not have pleaded guilty and would have insisted on going to trial. A claim of ineffective assistance of counsel is a mixed question of law and fact: we accept the trial court’s factual findings unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Id.

Green maintains that he pled guilty because he did not believe that counsel was prepared for trial. He contends that trial counsel could not have been prepared for trial because he only saw his trial counsel in person twice during the approximately 15 months that trial counsel represented Green. He further contends that he would have insisted on going to trial had there been more discussion of the evidence with his trial counsel. However, in this regard, “[t]he complaint of insufficient meetings with trial counsel is not dispositive, as there exists no magic amount of time which counsel must spend in actual conference with his client.” (Citation and punctuation omitted.) Jackson v. State, 314 Ga. App. 272, 279 (2) (b) (724 SE2d 9) (2012).

At the hearing on his motion to withdraw guilty plea, Green admitted that he had “briefly” discussed his case and the evidence with counsel on the phone and at the courthouse, although he later claimed that he was “completely unaware of any evidence that [the State] had.” Trial counsel recalled speaking to Green on the phone and at the courthouse about the case, including reviewing the evidence provided in discovery. He testified that he investigated the case, reviewed the facts and evidence, and discussed trial strategy with Green before declaring that he was ready for trial. He also stated that Green had indicated his desire to resolve the case by way of a plea instead of risking the “exposure” at trial. “The trial court was authorized to reject [Green’s] version of the facts and credit instead the testimony of his counsel.” (Citation and punctuation omitted.) Stinson v. State, 286 Ga. 499, 501 (2) (689 SE2d 323) (2010). See also Gresham v. State, 300 Ga. App. 158, 163 (684 SE2d 336) (2009) (assistance was effective and defendant’s guilty plea valid even though counsel “may have been overly busy, may not have spent much time with [defendant], may not have communicated with him regularly, may not clearly recall some aspects of the case, and may not have prepared for the trial very far in advance”).

“Even assuming counsel’s preparation for the trial was deficient, [Green] failed to establish a reasonable probability that the deficient performance caused him to accept the negotiated guilty plea rather than go to trial.” Hammett, 297 Ga. App. at 237. Although Green initially testified that he would have insisted on a trial had counsel fully discussed the case with him, he later testified that he could not say whether he would have insisted on going to trial because he had not seen the evidence.

In this circumstance,

[w]e conclude that the transcript of the guilty plea hearing and the testimony by [Green’s] attorney at the hearing on motion to withdraw the guilty plea authorized the trial court to reject [Green’s] claims that his attorney’s performance was deficient and that he pled guilty because [seemingly] his only alternative was to proceed to trial with an unprepared attorney.

Moore v. State, 286 Ga. App. 99, 102-103 (2) (648 SE2d 451) (2007).

2. Green also contends that his guilty plea was not knowingly and voluntarily entered.

To determine whether a guilty plea is valid, the record must show that the defendant understands the plea and the constitutional rights that he is relinquishing. Boykin v. Alabama, 395 U. S. 238 (89 SCt 1709, 23 LE2d 274) (1969). The State has the burden on direct review of establishing that the plea was entered intelligently and voluntarily. The State may meet this burden by showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea, or by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary. After sentencing, the decision on a motion to withdraw a guilty plea is within the trial court’s discretion, and withdrawal of the plea is allowed only when necessary to correct a manifest injustice.

(Citations and punctuation omitted.) Wright v. State, 292 Ga. 825, 826 (1) (742 SE2d 468) (2013).

Here, the record contains a transcript of the plea hearing and a notice of rights signed by Green. The transcript reveals that Green informed the court that he was not under the influence of any alcohol or drugs, that he knew the offenses he was charged with, that he understood the maximum penalties for those offenses, that he understood that the State would be presenting a capped plea, that he understood how sentencing under the capped plea would work, that he understood the rights he would waive by pleading guilty, that he understood the notice of rights form he had signed, that no one had influenced his guilty plea by making threats or promises to him, that his plea was voluntary, and that he was in fact guilty of the crimes charged.

At the motion hearing, Green testified that at the plea hearing he had only indicated that he understood his rights during the plea hearing to be polite. He also testified that he was “afraid” and “nervous” because this was his first time “dealing with the court system.” However, Green later admitted that he had experienced similar proceedings for a prior battery charge. The plea transcript reflects multiple inquiries by the court and the prosecution as to whether Green fully understood the nature of the charges and the rights he was relinquishing. “Moreover, any contradiction between [Green’s] testimony during the plea hearing and his testimony during the motion hearing is a matter of witness credibility, which the trial court was authorized to decide against him.” Niako v. State, 271 Ga. App. 222, 227 (609 SE2d 154) (2005).

Decided October 4, 2013.

James K. Luttrell, for appellant.

David McDade, District Attorney, James A. Dooley, Thomas E. Kegley, Assistant District Attorneys, for appellee.

Although Green also contends that he did not knowingly and voluntarily enter his plea because he did not fully understand the charges he was facing due to trial counsel’s failure to review the evidence with him, as discussed in Division 1, the trial court resolved this issue against Green.

The only evidence that the plea was not voluntary is [Green’s] testimony at the hearing on his motion to withdraw, which was contradicted by the testimony of trial counsel. . . . Recognizing the conflict in this evidence, the trial court chose to accept the testimony of trial counsel. We conclude that the record shows the trial court correctly found that [Green] was fully advised of his rights and freely and voluntarily waived those rights.

Wright, 292 Ga. at 826-827 (1).

Accordingly, the trial court did not abuse its discretion in denying the motion to withdraw the plea.

Judgment affirmed.

Miller and Ray, JJ., concur.