text:
    A12A2365.
    COREY v. THE STATE.
    (739 SE2d 790)
   Branch, Judge.

Charlette Zeigler Corey was charged with driving under the influence, failure to maintain lane, lack of proof of insurance, and driving with a suspended registration. She moved to suppress the evidence regarding driving under the influence on the ground that it was obtained illegally. The trial court denied the motion but granted a certificate of immediate review. This Court granted Corey’s application for interlocutory appeal. We reverse.

The State has the burden of proving that a search or seizure was lawful. OCGA § 17-5-30. The arresting officer, Pieter-Michiel Geuze of the Cobb County Police Department, was the only witness at the hearing on the motion to suppress. Thus, the evidence was undisputed, and Corey does not dispute the officer’s credibility. “[W]hen evidence is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Punctuation and footnote omitted.) Hammont v. State, 309 Ga. App. 395, 396 (710 SE2d 598) (2011). Finally, the trial court denied Corey’s motion to suppress without explanation and therefore there are no findings of fact. We will construe the facts in favor of the trial court’s decision. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

Officer Geuze’s testimony shows that on the evening of October 10, 2011, he was on duty and in uniform when he received a radio dispatch that an off-duty officer saw someone driving erratically and thought the driver could be intoxicated. Geuze drove in a marked patrol car to a residential location and made brief contact with the off-duty officer. The officer advised that the vehicle had just pulled into the garage at the address; Geuze parked at the base of Corey’s driveway. From there, Geuze saw Corey inside the open garage, halfway between her vehicle and the interior entrance to the home, which was on the driver’s side of her vehicle. As Geuze walked up the driveway and into the garage, he identified himself, asked if he could talk to her, and began having a conversation with her about how she had been driving erratically. Geuze did not have a warrant, and he admitted that he neither asked for nor received consent from Corey to enter the garage. Geuze clarified that when he got to the top of the driveway, where the garage door is located, Corey was getting ready to enter her home; in Geuze’s words, “she was hand on door handle, foot on step,” and she was getting ready to lower the garage door as well. Beginning at about this point an audio recording is available that captures some of the conversation between Geuze and Corey, but not the very beginning; other parts are unintelligible.

Inside the garage, Geuze did not smell any alcohol, but Corey was holding a closed pharmacy medication bag in her hand with her name on it and she appeared to be unsteady on her feet. Geuze asked about the medications and asked other questions in an attempt to determine whether the medications could have made Corey drowsy. Corey stated that she was taking four medications; Geuze knew that at least one was a sleep-aid, and he saw icons on the bag that indicated some of the drugs could cause drowsiness and dizziness. Geuze noticed that Corey was unable to stand without swaying toward and away from him, a symptom that he knew to be associated with alcohol consumption. Geuze also noticed that, despite it being a rainy day and somewhat dark in the garage, Corey had very small pupils, which could indicate the influence of medications. Geuze also saw that Corey had driven her car “into the end of the garage,” or, into the wall, rupturing a container of liquid and damaging the wall.

Corey asked if she had done something wrong while driving. Geuze replied that based on what he had learned from an off-duty officer, he was concerned that she had been driving erratically. A different voice on the audio recording then asked “Is there anybody else inside the house?” And Corey can be heard to say “my children.” Corey also said, “I have to urinate.” Geuze replied, “Well, step right here with me for right now so we can ... ”; the end of the sentence is not audible on the recording. But in his testimony, Geuze explained that he “asked her to wait for him” or “to stand by.” Other officers had arrived, and they stood with Corey while Geuze walked down the driveway.

For the next two minutes Geuze thoroughly questioned the off-duty officer about Corey’s erratic driving. As a result, Geuze decided to pursue the investigation further; he also decided that Corey, who was still in the garage, was not free to leave. Geuze re-entered the garage and asked Corey if she had been drinking. She replied that she had only had a glass of wine and that she was under an extreme amount of stress because her husband was incarcerated. Geuze and Corey spent the next several minutes discussing the possibility of Corey taking tests to determine if she was unsafe to drive. During this time, she refused to take an aleo-sensor test, and Geuze explained the option of performing field sobriety tests. Also during this time, Corey said “All I want to do is go in the house and fall asleep”; “I just want to go home”; and “my children are in the house.” Geuze did not allow Corey to go inside.

Geuze then had a two-minute conversation with his supervisor, Sergeant Jennings, during which Geuze stated that he did not smell alcohol. Based on that conversation and the information he had gathered so far, he decided to continue to investigate whether Corey had been driving under the influence of drugs. He returned to the garage and conducted standard field sobriety examinations. Another officer repositioned Geuze’s patrol car so that the camera pointed up the driveway and into the garage where the tests were performed. At this point, Geuze and Corey were in the back left corner of the garage near the interior door to the house; Corey’s vehicle was parked in the middle of a two-car space.

Based on three field sobriety tests, Geuze determined that Corey was less safe to drive as a result of the influence of drugs or alcohol, and he decided to take her into custody. She was arrested in her garage. Geuze read Corey the Georgia implied consent information. Geuze also performed a computer check on Corey’s vehicle registration and insurance and determined that the registration was suspended and that she was without valid insurance. At some point, Corey agreed to state-administered chemical tests of her blood and urine. On the way to the hospital, however, Corey indicated that she would not take the test and that she wanted to go to jail instead. Geuze never read Corey her Miranda rights.

1. Corey first contends the trial court abused its discretion by finding that Geuze was authorized to enter Corey’s garage.

The Fourth Amendment protects against “unreasonable searches and seizures[.]” U. S. Const. Amend. IV. Even with probable cause, absent exigent circumstances or proper consent, warrantless searches and seizures within a home by officers in the pursuit of their traditional law enforcement duties are presumptively unreasonable. See, e.g., Kentucky v. King,_U. S._(II) (A) (131 SC 1849, 179 LE2d 865) (2011); Payton v. New York, 445 U. S. 573, 589 (II) (100 SC 1371, 63 LE2d 639) (1980). The protections afforded by the Fourth Amendment extend to the home and its curtilage. Oliver v. United States, 466 U. S. 170, 176 (II), 180 (III) (A) (104 SC 1735, 80 LE2d 214) (1984); see also United States v. Dunn, 480 U. S. 294, 300 (II) (107 SC 1134, 94 LE2d 326) (1987). Thus, even if officers have probable cause to investigate a crime, without a warrant, exigent circumstances, or proper consent, they may not enter a home or its curtilage. See Kirsche v. State, 271 Ga. App. 729, 731 (611 SE2d 64) (2005).

(a) Although there may be a dispute about whether an attached garage is always considered a part of the home for the purposes of Fourth Amendment analysis, we find that under the facts of this case, Corey’s garage was entitled to full Fourth Amendment protection either as a part of the home itself or the protected part of its curtilage.

“[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” (Citation and punctuation omitted.) Welsh v. Wisconsin, 466 U. S. 740, 748 (II) (104 SC 2091, 80 LE2d 732) (1984). Here, the garage is connected to and part of the home itself: the two have an adjoining wall and an internal door connecting them, and they are essentially under the same roof. See Payton, 445 U. S. at 589 (II) (“In [no setting] is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home”). Cf. State v. Sims, 240 Ga. App. 391, 393-394 (523 SE2d 619) (1999) (“A garage or basement door left open to admit light and air does not constitute a blanket invitation to the police to enter.”).

In addition to the home itself, the Fourth Amendment protects a home’s curtilage, as limited by the open fields doctrine. Espinoza v. State, 265 Ga. 171, 172-173 (2) (454 SE2d 765) (1995). The Supreme Court of Georgia has defined curtilage as “the yards and grounds of a particular address, its gardens, barns, and buildings.” (Citation and punctuation omitted.) Landers v. State, 250 Ga. 808, 809 (301 SE2d 633) (1983). And the United States Supreme Court has explained that “the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.” (Citation omitted.) Dunn, 480 U. S. at 300 (II). That court also stated that “curtilage questions should be resolved with particular reference to four factors”:

the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home,[] the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.

(Citations omitted.) Id. at 301 (II).

The limited but undisputed evidence in the record shows that Corey used her garage for parking and for personally entering the living quarters of the home. The evidence shows that on this occasion, she intended to close the garage door as a part of entering the home. There is no evidence that Corey routinely left her garage door open or had left it open that day while she was out. And there is no evidence that she allowed deliverymen or other members of the public to approach the home through the garage to reach the interior door to the home. Thus the only evidence in the record shows that Corey treated her garage as part of the home itself and maintained an expectation of privacy therein. Accordingly, even if analyzed as a part of the curtilage, based on these undisputed facts we conclude that Corey’s garage should be placed under the home’s “umbrella” of Fourth Amendment protection. See Dunn, 480 U. S. at 301 (II).

(b) Geuze’s entry into the garage was not authorized by law. At the time he entered the garage, Geuze had information from a person he understood to be an off-duty officer that Corey had been driving erratically and could be intoxicated. As explained below, this information may have been sufficient to constitute articulable suspicion of driving under the influence, but it alone did not give the officer probable cause to arrest for that offense. See, e.g., Threatt v. State, 240 Ga. App. 592, 596 (1) (524 SE2d 276) (1999). But even if the officer may have had probable cause to arrest Corey for reckless driving, which we need not decide, there were no exigent circumstances sufficient to authorize entry for such an arrest. Id.

In Threatt, an identified, concerned citizen called 911 to report a car being driven in an erratic manner, and while on the phone with the police, she followed Threatt to his home and saw him go inside. Id. at 593. An officer arrived, interviewed the citizen, checked the registration on Threatt’s car, and, along with a second officer, knocked on Threatt’s apartment door. Id. When a woman opened the door and the officers saw Threatt, one of the officers “stepped a short distance — about two feet — inside the apartment,” for “the purpose of investigating his suspicion that the man had been driving under the influence of alcohol.” Id. The officer also stated that he was concerned that the evidence of alcohol in the suspect’s blood would diminish with time. Id. at 593-594. Inside the apartment, the officer then questioned the suspect and smelled the odor of alcohol, all of which eventually led to his arrest for driving under the influence. Id. at 594.

This Court held that although at the time they entered the apartment the officers had a reasonable articulable suspicion of DUI for a brief Terry investigation, they did not have probable cause to arrest for that offense, and therefore they had no basis for entry into the home without a warrant or consent, even in the face of the dissipation of the evidence of alcohol. Threatt, 240 Ga. App. at 595-596 (1). The Court also held that even if the officers had probable cause to arrest for reckless driving before entering the home, the circumstances were not sufficiently exigent to justify a nonconsensual, warrantless entry. Id. “The reckless operation of the car and the consequent threat to public safety had ended.” Id. at 596 (1). The facts of the present case are similar, and we similarly conclude that Geuze’s entry into Corey’s garage was not supported by a combination of probable cause and exigent circumstances. See also Smith v. State, 262 Ga. App. 614, 620-621 (3) (585 SE2d 888) (2003) (officer violated the Fourth Amendment when, without consent or exigent circumstances, he leaned through the doorway and looked into apartment).

(c) The State’s primary argument, and the trial court’s greatest concern at the hearing, was whether Corey impliedly consented to Geuze entering the garage given that he began conversing with Corey as he walked up the driveway and into the garage and given that Corey did not tell Geuze to stop or not to enter. The State has the burden of proving that the consent was voluntary under the totality of the circumstances and that it was not the result of express or implied coercion. Liles v. State, 311 Ga. App. 355, 358 (1) (716 SE2d 228) (2011); Pledger v. State, 257 Ga. App. 794, 796-797 (572 SE2d 348) (2002). We must construe the trial court’s order as having determined that Corey consented to Geuze’s entry and uphold that finding if there is any evidence to support it. Liles, 311 Ga. App. at 356. Nevertheless, this Court is “required to scrutinize closely an alleged consent to search.” Johnson v. State, 297 Ga. App. 847, 848 (678 SE2d 539) (2009).

Geuze admitted he did not ask Corey for permission to enter the garage. And when Geuze was asked if Corey gave consent for him to enter, Geuze replied, “At no particular time did she offer or forward to me such consent.” Geuze never testified that he interpreted any of Corey’s behavior as consent. With regard to the surrounding circumstances, according to Geuze’s own testimony, Corey had moved from halfway between her car and the internal door all the way to that door as Geuze climbed the driveway, and by the time he entered the garage, Corey had her hand on the doorknob, her foot on the step to go in, and she was about to close the garage door. Geuze testified that at this point Corey was getting ready to enter her home.

Although Geuze testified that he began the conversation outside the garage, identified himself, and asked Corey if he could talk to her, and although Corey never asked Geuze to stop or not enter the garage, Geuze expressly testified that Corey did not consent to entry. There is no evidence that Corey spoke before Geuze entered or that she even looked at him. The only evidence of body language is that she had not turned to face him or otherwise responded to anything that he had already said. And even if Corey did speak before Geuze entered the garage, without more, we can infer only that Corey consented to a conversation, not to Geuze’s entry into the garage. See generally State v. Jourdan, 264 Ga. App. 118, 121 (1) (589 SE2d 682) (2003) (“Mere acquiescence to the authority asserted by a police officer cannot substitute for free consent.”) (citation and footnote omitted).

Moreover, the fact that Corey continued the conversation with Geuze after that point does not establish consent. See generally Bolton v. State, 258 Ga. App. 217, 218 (573 SE2d 479) (2002) (“consent to search was obtained pursuant to an illegal entry and the consent to search was thereby the ‘fruit of the poisonous tree’ ”). In order to interpret Corey’s continued conversation with Geuze after his illegal entry as consent for Geuze’s presence in the garage, we would have to find the consent was “sufficiently attenuated or distinguishable from the illegality to be purged of any taint,” as opposed to “the product of and tainted by the illegality.” (Citation and punctuation omitted.) Watson v. State, 302 Ga. App. 619, 623 (691 SE2d 378) (2010). See also Pledger, 257 Ga. App. at 797. Here, after Geuze entered Corey’s home and at the same time that he was talking to her, he was in the process of noticing how she parked her vehicle, how she was holding a bag of prescription medications, and how she appeared unsteady on her feet. Furthermore, in this initial encounter, Corey expressed concern about her children and she stated that she had to urinate, which Geuze did not allow her to do. Instead he asked her to stand by with two other officers present while he went to talk to the off-duty officer who made the initial call, following which Geuze decided that Corey was not free to leave. Thus, Corey continued to try to disengage, but Geuze would not allow it.

In sum, Geuze did not have proper authority to enter Corey’s garage and the subsequent conversation was not sufficiently attenuated from the illegal entry to be purged from the taint. Geuze therefore violated Corey’s Fourth Amendment rights. Accordingly, the trial court erred by denying her motion to suppress insofar as it covered evidence gathered as a result of the illegal entry, primarily all evidence obtained in Corey’s garage. Cf. State v. Shephard, 248 Ga. App. 433, 436 (1) (546 SE2d 823) (2001) (affirming grant of motion to suppress where officers entered home of alleged drunk driver without consent or exigent circumstances).

Decided March 13, 2013.

Robert Kenner, Jr., for appellant.

Barry E. Morgan, Solicitor-General, Jane P. Manning, Assistant Solicitor-General, for appellee.

2. Corey also contends her statements must be suppressed because Geuze never read Miranda warnings to her. Because we hold that all evidence obtained in Corey’s garage must be suppressed, we need not determine whether Corey’s statements, at least through the time of her arrest, must be suppressed because of a violation of Miranda. Nevertheless, Corey eventually was arrested in her garage and never given any Miranda warnings. Smith, 262 Ga. App. at 617 (2) (“Miranda protections apply when an individual is either (1) formally arrested or (2) restrained to the degree normally associated with a formal arrest.”) (citation omitted). Therefore any incriminating statements Corey made subsequent to her arrest were made without the protection of Miranda and may not be introduced. See Shephard, 248 Ga. App. at 436 (2) (affirming suppression of statements made by defendant after he was taken into custody tantamount to arrest but never given Miranda warnings).

Judgment reversed.

Miller, P. J., and Ray, J., concur.

       “Officers are entitled to rely on information provided by other officers or by their dispatcher when asked to be on the lookout for a certain vehicle or suspects. There is no requirement that the officer or officers providing the information testify at the motion to suppress [hearing].” (Citations omitted.)Edmond v. State, 297 Ga. App. 238,239 (676 SE2d 877) (2009). And “hearsay is admissible during a suppression hearing when determining the existence of probable cause.” (Citation omitted.) Daniel v. State, 298 Ga. App. 245, 248 (3) (679 SE2d 811) (2009).

       Officers are also authorized to enter a residence in response to nonlaw enforcement emergency situations involving a threat to life or property. See generally Mincey v. Arizona, 437 U. S. 385, 392-393 (I) (98 SC 2408, 57 LE2d 290) (1978); Gilreath v. State, 247 Ga. 814, 819-820 (1) (279 SE2d 650) (1981); Love v. State, 290 Ga. App. 486, 488 (659 SE2d 835) (2008).

       See Coffin v. Brandan, 642 F3d 999,1012-1013 (III) (11th Cir. 2011) (enbanc, four judges dissenting) (refusing to extend full Fourth Amendment protection to attached garage as a matter of law; instead holding that given the specific circumstances of the case, including that the resident ordered the officers to leave and attempted to close the garage door in the presence of the officers in order to maintain privacy, garage was a part of the curtilage of the home even though the garage faced the street and was open when officers arrived). Compare United States v. Oaxaca, 233 F3d 1154, 1157 (A) (9th Cir. 2000) (“[N]o reason exists to distinguish an attached garage from the rest of the residence for Fourth Amendment purposes.”) (citations and punctuation omitted.)

       As held by the Supreme Court, “an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers.” Oliver, 466 U. S. at 181 (III) (A). Thus, “only the curtilage, not the neighboring open fields, warrants the Fourth Amendment protections that attach to the home.” Id. at 180 (III) (A).

       [T]he term “curtilage” originally was understood at common law to refer to those structures and areas within the fence or wall that usually surrounded dwelling houses in England. But. . . the term is now understood to include any structures and areas upon residential property that are so near and so closely connected to the dwelling house as to be considered a part of it, whether or not enclosed with the dwelling house by a fence or wall.
      (Citations omitted.) Rutter v. Rutter, 316 Ga. App. 894, 899 (2) (a), n. 12 (730 SE2d 626) (2012).

       “[A]ny visitor, including a police officer, may enter the curtilage of a house when that visitor takes the same route as would any guest, deliveryman, postal employee, or other caller.” (Citation, punctuation and footnote omitted.) State v. Gravitt, 289 Ga. App. 868, 870 (2) (a) (658 SE2d 424) (2008).

       See generally State v. Oliver, 261 Ga. App. 599, 601 (583 SE2d 259) (2003) (“During a second-tier encounter, an officer is permitted to question a suspect to gather evidence of possible intoxication. Additionally, an officer may conduct field sobriety tests, even in the absence of Miranda warnings.”) (footnotes omitted).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A12A2493.
    GEORGIA DEPARTMENT OF TRANSPORTATION v. BAE et al.
    (738 SE2d 682)
   DOYLE, Presiding Judge.

Ju Hwan Bae and Kum Sun Bae filed an inverse condemnation claim arising from the construction of a new section of State Road 155 near their commercial property. The trial court denied summary judgment to the Georgia Department of Transportation (“DOT”) and denied its subsequent motion for reconsideration. DOT filed an application for interlocutory review, which we granted. We reverse, for the reasons that follow.

The relevant facts are not in dispute. The Baes own a gas station and convenience store in Griffin that is located on a triangular piece of land at the intersection of East McIntosh Road and a street that used to be known as State Highway 155 (which is now known as Old State Highway 155). DOT built a new highway segment nearby that is now called State Highway 155, so that the highway traffic no longer directly passes by the Baes’ gas station. As part of this construction project, DOT converted one end of East McIntosh Road into a dead-end street some distance away from the Baes’ business and the other end of East McIntosh was extended to meet the new State Highway 155. DOT did not alter the portions of the roads that abut the Baes’ business, and their access to East McIntosh Road and Old State Highway 155 has not changed.

The Baes sued DOT for inverse condemnation, complaining that their business has fallen off significantly because they lack access to the newly constructed portion of State Highway 155. DOT moved for summary judgment, arguing that a re-routing of traffic does not amount to a compensable taking under Georgia law. The trial court denied DOT’s motion on the ground that “there are genuine issues of fact regarding whether the [Baes] suffered a material alteration of access to their property and whether the [Baes] suffered a damage that is different in kind from that suffered by the public at large.” The trial court also denied DOT’s motion for reconsideration, and we granted its subsequent application for interlocutory appeal.

In Tift County v. Smith, the Supreme Court explained that the rights of persons asserting inverse condemnation claims “fall into two categories: general rights, which they have in common with the public, and special rights, which they hold by virtue of their ownership of this property. In order to constitute a taking or damaging of their property, it is the special rights that must have been violated.” The Court held:

[O]ne whose right of access from his property to an abutting highway is cut off or substantially interfered with ... has a special property [right] which entitles him to damages. But if his access is not so terminated or obstructed, if he has the same access to the highway as he did before the closing, his damage is not special, but is of the same kind, although it may be greater in degree, as that of the general public, and he has lost no property right for which he is entitled to compensation.

In that case, the plaintiffs owned a farm that abutted a public road that DOT’s predecessor agency converted into a dead-end road upon the construction of a nearby state highway. The plaintiffs sued for inverse condemnation, claiming that the dead-ending of the road substantially increased their travel time to the nearest town. The Supreme Court noted that the plaintiffs’ complaint was based “upon access, not to the road upon which their property abuts, but to a particular place, [the town].” The Court held that because the plaintiffs’ access to the road abutting their property was not diminished, they were not entitled to compensation, even though the re-routing of traffic inconvenienced them.

MARTA v. Fountain presented facts very similar to those in this case. Fountain owned a service station at the corner of East Lake Drive and West Howard Avenue in Decatur. Due to MARTA construction, East Lake Drive was re-routed, and the former East Lake Drive became a dead-end road terminating approximately 150 feet from Fountain’s property. Applying Tift County, the Supreme Court concluded that no compensable taking had occurred because Fountain still had the same unfettered access to the roads abutting his business, even though those roads were now less-traveled due to the re-routing of traffic. Tift County and Fountain are applicable and controlling here.

The Baes’ reliance upon Circle K General v. Dept, of Transp., and Dept, of Transp. v. Whitehead is misplaced. As the Supreme Court of Georgia previously explained, both of those

case[s] involve [ ] a taking of an easement of access as a matter of law. In Whitehead, the property owner’s direct access to [a particular road] was totally eliminated, just as the property owner’s direct access to [a road] was totally eliminated in Circle K General. Therefore, in those cases it was appropriate for the trier of fact to decide the extent of the impairment to existing access, as there had been interference with a special right.

Decided February 21, 2013

Reconsideration denied March 14, 2013

Samuel S. Olens, Attorney General, Robert C. Edwards, Senior Assistant Attorney General, Nancy M. Gallagher, Assistant Attorney General, Sanders, Haugen & Sears, C. Bradford Sears, Jr., for appellant.

In this case, DOT did nothing to the roads abutting the Baes’ business and did not terminate or obstruct their access to those roads. The Baes’ harm has resulted from a re-routing of traffic, not a diminishment of access to the road, and therefore “the injury [they] complainf ] of falls squarely within the non-compensable category [,] and [DOT] was not liable to [the Baes] for special damages as a matter of law.”

We also reject the Baes’ argument that they are entitled to compensation because vehicles can no longer turn both ways out of their property onto Old State Highway 155. As we held in Dept, of Transp. v. Katz, changing the traffic pattern on a road adjacent to the plaintiff’s from two-way to one-way “was no different from mere inconvenience and circuity of travel and was not compensable in the instant proceedings.” The Baes’ contention that the road construction resulted in the appearance that the gas station was barricaded in and not accessible is similarly without merit.

Accordingly, we conclude that the trial court erred by denying DOT’s motion for summary judgment.

Judgment reversed.

Andrews, P. J., and Boggs, J., concur.

Smith, Welch, Webb & White, William A. White, for appellee.

       There are several residences on the same street as the Baes’ gas station.

       219 Ga. 68 (131 SE2d 527) (1963).

       Id. at 72.

       (Punctuation omitted.) Id. at 73.

       See id. at 69.

       (Emphasis in original.) Id. at 71.

       See id. at 72.

       256 Ga. 732 (352 SE2d 781) (1987).

       See id. at 732.

       See id. at 732-733.

       See id. at 733-734.

       196 Ga. App. 616 (396 SE2d 522) (1990).

       253 Ga. 150 (317 SE2d 542) (1984).

        Dept. of Transp. v. Taylor, 264 Ga. 18, 20 (3) (b) (440 SE2d 652) (1994).

        Fountain, 256 Ga. at 734. See also Dept. of Transp. v. Bridges, 268 Ga. 258,259 (486 SE2d 593) (1997); Taylor, 264 Ga. at 20-21 (3) (c); Tift County, 219 Ga. at 73; Dept. of Transp. v. Durpo, 220 Ga. App. 458, 460 (1) (469 SE2d 404) (1996).

       169 Ga. App. 310 (312 SE2d 635) (1983).

       Id. at 313 (2).

        See Moreton Rolleston, Jr. Living Trust v. Dept. of Transp., 242 Ga. App. 835, 838-839 (2) (531 SE2d 719) (2000) (“Impaired visibility by a certain flow of traffic, without more, does not constitute a taking or damaging of property that would entitle the [plaintiff] to compensation. . . .”).


text:
    A12A1783.
    TAYLOR v. CAMPBELL.
    (739 SE2d 801)
   DOYLE, Presiding Judge.

Ramone Taylor, a sergeant with the DeKalb County Sheriffs Department, appeals from the denial of his motion for summary judgment in a slip-and-fall suit brought by Raquel Campbell, who was on her way to work at the DeKalb County jail. The trial court denied Taylor’s motion on the ground that issues of fact remained as to whether he was entitled to official immunity from personal liability. We reverse because the record lacks facts disputing the evidence that Taylor’s liability, if any, is premised on his performance of discretionary functions entitling him to official immunity.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.

[O]n appeal from the denial or grant of summary judgment [,] the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

So viewed, the record shows that Campbell was injured on her way to work in a DeKalb County jail facility, when she slipped and fell on a puddle of water upon exiting an elevator at the jail. It is undisputed that at the relevant time Sergeant Taylor’s jail duties included supervising four to six detention officers who oversaw an inmate work crew who performed floor cleaning and maintenance at the jail. It is further undisputed that Taylor did not himself perform the work of maintaining the floors; instead he determined “what tasks the detention officers should instruct their work crew to perform, when they should be performed, and at times how the work should be done.” He was performing these supervisory duties on the day Campbell was injured, but he was not responsible for physically performing the work himself. There is no evidence that Taylor observed or knew about the puddle of water before Campbell fell.

Based on Taylor’s supervisory role, Campbell sued him in his official and personal capacities. After Taylor moved to dismiss the suit, Campbell conceded that Taylor was immune from suit in his official capacity, but she maintained her action for personal liability, and the trial court denied Taylor’s motion to dismiss. Taylor then moved for summary judgment, arguing that he was entitled to official immunity because he was performing discretionary (not ministerial) functions when Campbell was injured. The trial court denied the motion, giving rise to this appeal.

The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight. Thus, damage suits are maintainable in this [SJtate against government officers and agents for failure to perform ministerial duties, but such officers and employees are immune from negligence claims when the acts complained of involve a discretionary function of an office. The difference between ministerial and discretionary acts has been explained as follows: A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.
Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.

Here, in support of his summary judgment motion, Taylor relied upon his affidavit, which contains the following material facts:

[A] s a Sergeant with the DeKalb County Sheriffs Office, I have worked in the capacity as a supervisor at the DeKalb County Jail with the responsibility of overseeing a group of (4) four to (6) six detention officers who in turn oversee an inmate work crew who perform the general cleanup, painting, trash removal, floor maintenance [,] and handle other general sanitary matters at the DeKalb County Jail.
As a supervisor, my responsibility is to oversee a group of (4) four to (6) six detention officers. This responsibility involves making situational determinations about what tasks the detention officers should instruct their work crew to perform, when they should be performedf,] and at times how the work should be done. I do not physically perform the work of maintaining the floors at the DeKalb County Jail.
On or about [the date in question], I oversaw a group of (4) four to (6) six detention officers. On or about this date my job responsibilities did not include physically performing the work involved with maintaining the floors at the DeKalb County Jail.
On or about [the date in question], I did not observe nor did it come to my knowledge that a puddle of water existed on the floor outside of an elevator at the DeKalb County Jail.
At no time whatsoever... did I injure or cause harm, nor did I intend to injure or cause harm to anyone while performing my responsibility to oversee a group of (4) four to (6) six detention officers or with regard to any of the responsibilities I performed.
The trial court concluded that the affidavit
does not make clear, for instance, whether [Taylor] was on the scene around the time that the puddle was present or Plaintiff slipped and fell in a puddle of water on the floor. If Defendant was present, he possibly was negligent in not seeing the puddle. Merely applying the rubric of “supervision” to his activities without more detailed testimony does not establish that Defendant was free of negligence in performing a ministerial duty.

For this reason, the trial court ruled that Taylor had not shown he was engaged in purely discretionary functions, so he was not entitled to summary judgment on his immunity defense.

Nevertheless, “[tjhere is no evidence in the record that [Taylor] negligently performed a ministerial act.” The only evidence in the record is that Taylor supervised officers who supervised inmates who did the floor cleaning work. It is undisputed that Taylor did not personally perform the work of maintaining the floors, and there is no evidence that he routinely was required to or did personally inspect the floors while performing his supervisory function. Despite the absence of evidence in the record, the trial court speculated that Taylor could have been present and seen the puddle of water. But “[gjuesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.” “[Although the nonmoving party on a motion for summary judgment is entitled to the benefit of all reasonable inferences to be drawn from the evidence, such inferences cannot be based on mere conjecture or possibility or upon evidence which is too uncertain or speculative.” Accordingly, the trial court erred by imputing to Taylor some personal, ministerial involvement in the cleaning even though the evidence did not support such an inference.

Taylor’s affidavit appropriately describes his role as supervisor as a discretionary, not ministerial, function. Our courts have previously held that supervisory actions similar to those described in Taylor’s affidavit lack the simple, absolute, and definite character of ministerial acts, and we find no reason to depart from that conclusion with respect to Taylor’s role here. Therefore, Taylor’s actions were discretionary, and he is entitled to official immunity as to any personal liability arising from Campbell’s complaint.

Decided March 14, 2013.

Jermaine A. Walker, for appellant.

Roger W. Orlando, Arman M. Deganian, for appellee.

Judgment reversed.

Andrews, P. J., and Boggs, J., concur.

       See OCGA § 9-11-56 (c).

        Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

       Although the order appealed from is interlocutory, we have jurisdiction under the collateral order doctrine. Like sovereign immunity, official immunity is “an entitlement not to stand trial rather than a mere defense to liability.” (Punctuation and footnote omitted.) Cameron v. Lang, 274 Ga. 122, 124 (1) (549 SE2d 341) (2001). And this Court has held that an order denying such an immunity claim is appealable under the collateral order doctrine because “the order . . . conclusively determine^] the disputed question, resolve[s] an important issue completely separate from the merits of the action, and [is] effectively unreviewable on appeal from a final judgment.” (Punctuation omitted.) Bd. of Regents of the Univ. System of Ga. v. Canas, 295 Ga. App. 505, 507 (1) (672 SE2d 471) (2009).

       (Punctuation omitted.) Gentry v. Hutchins, 319 Ga. App. 636, 638 (738 SE2d 92) (2013), citing Effingham County v. Rhodes, 307 Ga. App. 504, 506-507 (3) (705 SE2d 856) (2010).

        Gentry, 319 Ga. App. at 638.

       (Punctuation omitted.) Isbell v. Credit Nation Lending Svc., 319 Ga. App. 19, 25 (2) (a) (ii) (735 SE2d 46) (2012).

       (Punctuation omitted.) Ladner v. Northside Hosp., 314 Ga. App. 136 (723 SE2d 450) (2012).

       See, e.g., Parrish v. State of Ga., 270 Ga. 878, 879-880 (514 SE2d 834) (1999) (“the supervision of a prisoner work detail is a discretionary function by virtue of which the supervisor is entitled to official immunity’); Reece v. Turner, 284 Ga. App. 282, 286(1) (643 SE2d 814) (2007) (“decisions concerning the supervision of students and school personnel are considered discretionary, ‘even where specific school policies designed to help control and monitor students have been violated’ ”). See also Whitfield v. Brown, 318 Ga. App. 391, 393 (734 SE2d 98) (2012) (“an action is ministerial only if the [government employer] creates policy requiring certain actions under certain situations”); Hendricks v. Dupree, 311 Ga. App. 96, 99 (1) (714 SE2d 739) (2011) (supervision of grass cutting is discretionary when done without an “established policy addressing the timing, manner or method of execution of the cutting of the grass”).


author: Boggs, Judge.

text:
    A12A2039.
    HATCHER v. THE STATE.
    (739 SE2d 805)
   Boggs, Judge.

A jury found Willie Hatcher guilty on three counts of child molestation and one count of incest for acts against the victim, his five-year-old niece. Following the denial of his amended motion for new trial, Hatcher appeals, contending that the trial court erred in allowing him to represent himself, and arguing that the admission of hearsay statements violated his rights under the Confrontation Clause. For the following reasons, we affirm.

On February 27, 2003, Hatcher was arrested on allegations that he molested the victim. He was indicted on August 2, 2005. At arraignment on October 11, 2005, Hatcher appeared pro se, and the following colloquy took place between the trial court, the State and Hatcher:

The Court: Is someone standing in now for [Hatcher], or do we need to deal with that?
[The State]: Your Honor, I — I’m not sure. I don’t know if he’s filled out a form for a public defender, or if he plans on hiring somebody.
Hatcher: That’s what I was in the process of today, sir. I had to go see my child support caseworker, and I was in the process of getting a lawyer in Hinesville today. And that’s why I made it back late.
But I don’t know where the office at, Mr. Jonathan Merritt.
You probably know him, but I couldn’t find his office; I don’t know his number. Somebody just introduced me to him the other day.
The Court: Okay. Can you afford to hire an attorney?
Hatcher: Yes, sir.
The Court: Okay. You’re employed?
Hatcher: Yes, sir, I’m employed.
The Court: Okay. Would you — would you be willing to allow the public defender to assist you today simply to enter a not guilty plea to the charge?
Hatcher: If that’s what it is. That’s all I’m going to put in is a not guilty.

The trial court then allowed the public defender to assist Hatcher in the entry of his plea. After accepting the plea, the trial court “ [¶] urther note[d] the representation to the Court that the defendant is in the process of obtaining private counsel. (To Mr. Hatcher) So you must go ahead and do that.” When Hatcher replied, “Okay,” the trial court advised, “And you’ll have ten days from this date to file motions in the case. So you need to go ahead and get in touch with your attorney and — and get him retained.” The trial court then considered Hatcher’s prior convictions, and set bond at $15,000. On October 14, 2005, Hatcher posted the bond using his mother’s residence as security.

At a hearing on November 17, 2005, before a different judge, Hatcher again appeared pro se:

The Court: Okay, Mr. Hatcher. Who’s your lawyer sir?
Hatcher: Jonathan Merritt.
The Court: Nathaniel Merritt in Statesboro?
Hatcher: (Nods affirmatively)
The Court: And have you retained him yet?
Hatcher: I ain’t been able to make contact with him.
The Court: Well, I mean, you know, the calendar runs every day, and I mean, December the 5th’s going to be here shortly.... So I would suggest that you make a better effort to try to contact him; okay?
Hatcher: All right.
The State: Your Honor, in fact the defendant announced on October the 11th that he was going to hire Jonathan Merritt, and that was, you know, a month ago. So apparently this has been in the plan.
The Court: Well, I mean, I don’t know whether you qualify for the public defender to represent you or not. I don’t have any idea about that. If you’re unable to retain a lawyer, then you can make an application. If you qualify they’ll appoint you a lawyer. But we can’t do everything for you. You have to do that yourself and — things. And if you don’t you’re going to get up here on jury selection day, and you’re going to be in an awkward situation when you try to compete with one of these lawyers . . . you’re going to have an uphill battle. You understand that?
Hatcher: Yes, sir.
The Court: So you’re going to get you a lawyer?
Hatcher: (Nods affirmatively)
The Court: And when you going to do that? Now you told them back in October you were going to get a lawyer. You haven’t done that yet.
Hatcher: If I ain’t got him by then, it’s just on me.
The Court: Everything’ll be on you. Well, I just want you to clearly understand that everything’s going to be on you now if you don’t get you a lawyer.

On December 5, 2005, Hatcher appeared before a third trial judge, again pro se:

The Court: Are you feeling like Perry Mason?
Hatcher: No, sir.
The Court: Are you about ready to handle a jury trial for yourself?
Hatcher: If that’s what it takes, sir. I’m ready.
The Court: Well, why don’t you have an attorney?
Hatcher: Well, I had supposed to ... got in contact with Mr. Jonathan Merritft] but I didn’t have — well, I had paid him money on it but I didn’t have enough money to —
The Court: Here — here we are at jury selection.
Hatcher: Yeah.
The Court: So, what’s going to happen?
Hatcher: I don’t got no choice but to go with ... a public defender.
The Court: I mean, you know, the public defender . . . they don’t like getting a case one day before jury selection, you know.
[The State]: Your Honor, he’s been before the Court before in this situation. I don’t know if it was you but . . . actually several times and advised to get an attorney.
The Court: Yeah.
[The State]: So, this is not the first time he’s been in this situation in this case.
The Court: I’m — yeah. I’m not inclined to — you see Mr. Joseph right there; (Indicating) you see Mr. Messenger right there; (Indicating) they — they can’t be prepared for a jury trial one day before trial term and you suddenly say I want to get a public defender, you know. Now, have you talked to [the prosecutor] about working this matter out?
Hatcher: No.
The Court: Do you even want to?
Hatcher: No.
The Court: Then I guess we’ll pick a jury.
Hatcher: That will work.
The Court: I’ll see you tomorrow morning to pick a jury.

The next day, December 6, when Hatcher appeared pro se, the trial court asked the State, “what is the plea offer to Mr. Hatcher?” The State responded that it did not have a defense attorney with whom “to discuss plea negotiations.” The court then instructed the State to “discuss it with [Hatcher]After enumerating the charges against Hatcher and the possible sentence for each count, the court stated: “Seventy-five years is what he’s facing in the penitentiary. Now, sit down, Mr. Hatcher, and [to the prosecutor], you go sit beside him and, [to Hatcher’s mother], you go over there and sit there too and tell him what your plea offer is. .. . We’re off the record.” After some discussion off the record, court resumed:

The Court: All right, [to the prosecutor] So, y’all weren’t able to work anything out. . . ?
[The State]: No, Your Honor. We were not.
The Court: All right. Now, Mr. Hatcher, you got a choice now:
You can either have a trial with just me being the judge or you can have a trial by jury and we’ll. . . select a jury.

Hatcher indicated that he preferred a jury trial.

After the jury was selected, the court announced that trial would begin on December 14. The court then asked Hatcher to approach the bench:

The Court: Now, Mr. Hatcher, come on up here.
Hatcher: (Complies)
[Hatcher’s] mother: Judge —
The Court: Yes, ma’am.
[Hatcher’s] mother: — by him doing this — so he — so he appointing his own, so he ain’t got no —
The Court: He wanted it —
[Hatcher’s] mother: No.
The Court: We’ve been telling him for months to get a lawyer. [Hatcher’s] mother: [to Hatcher] Get you a lawyer.
The Court: Get a lawyer. Get a lawyer. Get a lawyer. He never did and never applied for the public defender and it’s time to go to court.
[Hatcher’s] mother: So I have to be here with him?
The Court: You can — I’ll let you be with him.

The trial court then instructed Hatcher to bring any witnesses to court and that if he wanted “subpoenas to make people come ... you can go to the clerk and she’ll give you a subpoena and it’ll order them to be here.” After further discussion concerning witnesses, Hatcher again asserted that he was going to retain counsel:

The Court: Now, Mr. Hatcher, I got one more thing I want to tell you on the record here.
[Hatcher]: I got you.
The Court: You can still go hire an attorney.
Hatcher: Yes, sir.
The Court: You understand?
Hatcher: Yes, sir.
The Court: It’s not too late —
Hatcher: Yes, sir.
The Court: — to go hire an attorney.
Hatcher: Yes, sir. That’s what I’m planning on doing. Yes, sir.
The Court: Go get you one.
Hatcher: Yes, sir.

Eight days later, however, on the morning of trial, the following colloquy took place:

The Court: Are you ready to proceed, Mr. Hatcher?
Hatcher: I have no choice, sir.
The Court: Sir?
Hatcher: I have no choice.
The Court: Well, do you have anything you want to say?
[The State]: He should have got an attorney . . .
The Court: [to the prosecutor] Well, how many times have judges been telling him to get an attorney ... ? I mean, I’ve told him several times, and every other judge has told him too. I mean, you know, what can you do? I mean, if somebody says, “I’m not going to get an attorney,” does that mean he never — that means he doesn’t ever have to go to court? Well, eventually you’ve got to go to court.

Hatcher then explained to the court that just prior to trial, he rejected another plea offer from the State. When the State informed the court that it served Hatcher with a recidivist notice, the court asked Hatcher if he understood the notice. Although Hatcher replied, “Yes, sir,” the court explained what “recidivist means,” and told Hatcher that it would not have discretion to sentence him to anything other than the maximum sentence. The court again asked Hatcher if he wanted to discuss the State’s plea offer, and again Hatcher declined. The State then called its first witness and the trial proceeded.

1. Hatcher contends that the trial court erred when it required that he represent himself “without either appointing counsel... or determining on the record that [he] had validly waived his constitutional right to counsel.” He argues that he did not waive his right to counsel, but merely acquiesced in the absence of counsel, and that his statement the day before trial that he “got no choice but to go with a public defender” indicated that he wished to be represented by counsel at trial. He argues further that had the trial court made the proper inquiry regarding why he appeared without counsel, it would have discovered that he was indigent rather than dilatory. Finally, Hatcher contends that the court should have granted a continuance to ensure that he had adequate time to prepare a defense.

During several hearings, from arraignment up until the day of jury selection, Hatcher repeatedly stated that he could afford to hire counsel and was in the process of doing so. And for a nonindigent defendant

the constitutional right to counsel only entitles him to be defended by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his services. Since a non-indigent defendant’s right to counsel is predicated upon his own diligence, a failure on his part to retain counsel may constitute a waiver of the right to counsel. Thus, when presented with a non-indigent defendant who has appeared for trial without retained counsel, the trial judge has a duty to delay the proceedings long enough to ascertain whether the defendant has acted with reasonable diligence in obtaining an attorney’s services and whether the absence of an attorney is attributable to reasons beyond the defendant’s control. Notwithstanding a defendant’s present verbal insistence upon his right not to be tried without counsel, his own past actions may nevertheless demonstrate that the right has been waived. Since a non-indigent defendant’s right to counsel is predicated upon his own diligence, a failure on his part to retain counsel may constitute a waiver of the right to counsel.

(Citations and punctuation omitted; emphasis supplied.) Collins v. State, 269 Ga. App. 164, 165-166 (603 SE2d 523) (2004).

Whether a particular defendant has exercised “reasonable diligence” in procuring counsel is a factual question, and the grant or denial of a request for continuance on grounds of absence of retained counsel is a decision within the sound discretion of the trial judge, reversible only for an abuse of that discretion.

(Citation and punctuation omitted.) Id. at 166.

The record here reveals that Hatcher repeatedly claimed, over a period of three months, that he was in the process of retaining counsel, and he was advised on multiple occasions by the trial court to “make a better effort” to do so. The trial court reminded Hatcher of the upcoming trial date and the likely sentence he would face if convicted. Even following jury selection, the court reminded Hatcher that he was told at every appearance to hire counsel, after which Hatcher still insisted that he was planning to retain counsel for trial set to begin the following week. Yet, when trial began, Hatcher appeared pro se, claiming that he “ha[d] no choice” but to proceed to trial. Under these circumstances, the trial court did not abuse its discretion in apparently concluding, by proceeding with trial and refusing to delay the proceedings, that Hatcher did not exercise reasonable diligence in procuring counsel. See Collins, supra, 269 Ga. App. at 166-167 (no error in failing to delay proceedings where defendant repeatedly cautioned that case would proceed to trial as scheduled despite defendant firing counsel and making little effort to obtain new counsel); see also Johnson v. State, 188 Ga. App. 411, 413 (3) (373 SE2d 93) (1988) (court did not abuse its discretion in denying motion for continuance where defendant “utterly disregarded” the court’s instructions to obtain counsel). Moreover, contrary to Hatch-er’s argument here, the court was not required to give Hatcher a warning of the dangers of proceeding pro se because such requirement applies “only in the context of a waiver of the right to counsel by election of the countervailing right of self-representation. [Cit.]” (Emphasis in original.) Burnett v. State, 182 Ga.App. 539, 542 (1) (356 SE2d 231) (1987). It does not apply where, as here, the waiver of the right to counsel was based upon Hatcher’s own failure to exercise the requisite diligence. Id.

Hatcher also argues that his statement before jury selection indicated that he wished to be represented by counsel, and that the trial court should have made the proper inquiry to determine that he was indigent. Just prior to jury selection, when the court inquired as to why Hatcher appeared without counsel, Hatcher stated that he had paid an attorney money but “didn’t have enough money,” and that he had “no choice but to go with... a public defender.” The trial court explained that generally, public defenders “don’t like getting a case” with one day’s notice, and that Hatcher could not, the day before trial, “suddenly say [he] want[s] to get a public defender.”

Even though the court informed Hatcher that the public defender preferred not to receive appointments with only a one-day notice, Hatcher had an additional week prior to trial within which he could have applied for appointed counsel. And upon reviewing the many colloquies between Hatcher and the trial court, we see no error in the court’s failure to inquire into Hatcher’s indigence following his comment that he had “to go with ... a public defender,” where Hatcher: asserted at arraignment that he was employed and could afford to hire counsel of his choosing; was advised by the court, weeks before trial, that it was his responsibility to apply for appointed counsel if he desired to do so; first raised the issue of a public defender on the day of jury selection; apparently made no effort to apply for appointed counsel even after having another week before trial to do so; and then insisted, after suggesting a public defender, that he still planned to hire counsel for trial. See Burnett, supra, 182 Ga. App. at 542 (1).

Hatcher waived his right to counsel by failing to exercise diligence to retain counsel and by making no effort to apply for appointed counsel. Under these circumstances, we cannot say that the trial court erred in allowing him to represent himself at trial.

Decided March 14, 2013.

Craig T. Pearson, for appellant.

Tom Durden, District Attorney, Sandra Dutton, Assistant District Attorney, for appellee.

2. Hatcher contends that the admission of the hearsay statements of the victim, who did not testify at trial, violated his rights under the Confrontation Clause. He complains that the State failed to notify him prior to trial of its intent to introduce the victim’s hearsay statements, in violation of the Supreme Court of Georgia’s decision in Hatley v. State, 290 Ga. 480, 483-484 (I) (772 SE2d 67) (2012) (prosecution required to notify defendant within reasonable period of time prior to trial of intent to use child victim’s hearsay statements).

Hatcher failed to object to the admission of this evidence, but even if he had, any error in the admission of the hearsay was harmless as it was cumulative of other evidence of the molestation, in particular, the testimony of the victim’s sister who witnessed the acts. While Hatcher argues that the victim’s sister was unresponsive to some of the questioning, and “was far from the most articulate, forthcoming witness,” her statements concerning the acts she witnessed Hatcher commit against her sister were admissible and consistent with the evidence Hatcher complains was inadmissible. See Hatley, supra, 290 Ga. at 485 (II) (even if hearsay statements were erroneously admitted, error was harmless beyond a reasonable doubt where such statements were cumulative of properly admitted evidence); Welch v. State, 318 Ga. App. 202, 206 (1) (733 SE2d 482) (2012) (even if hearsay was erroneously admitted in violation of Confrontation Clause, no reversible error where hearsay was cumulative of other evidence); In the Interest of S. S., 281 Ga. App. 781, 783-784 (637 SE2d 151) (2006) (officer’s testimonial statements concerning what the victim conveyed concerning molestation were cumulative of other properly admitted testimony). There could therefore be no basis for reversal on this ground.

Judgment affirmed.

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

       The jury also found Hatcher guilty of invading the privacy of another for “secretly observing [his adult cousin] through a hole in the bathroom wall.”

       Moreover, Hatcher was no stranger to the criminal justice system. In 1992, he was adjudicated delinquent for the aggravated molestation of another cousin who was then nine years old; in 1995, he received first offender treatment for theft hy shoplifting; in 1996, he pled guilty to two counts of the sale of cocaine and one count of possession of cocaine with intent to distribute; and in 1997, he entered a negotiated plea to robbery.

       See Bynum v. State, 289 Ga. App. 636, 637 (658 SE2d 196) (2008) (following the passage of the Georgia Indigent Defense Act of 2003, defendants apply directly to the public defender offices for indigent representation); see also OCGA §§ 17-12-1, 17-12-23 (b).


text:
    A12A2072.
    BOSTON CREEK HOLDINGS, LLLP v. AMICALOLA ELECTRICAL MEMBERSHIP CORPORATION.
    (739 SE2d 811)
   DOYLE, Presiding Judge.

Boston Creek Holdings filed suit against Amicalola Electrical Membership Corporation (“AEMC”) asserting claims arising out of AEMC’s activities on property owned by Boston Creek. In this discretionary appeal, Boston Creek appeals the denial of its motion for joinder to convert its suit into a class action, contending that the trial court incorrectly concluded that the claims in the amended complaint were barred by the one-year statute of limitation in OCGA § 46-3-204 and erred by applying the joinder statute (OCGA § 9-11-21) to a class action. For the reasons that follow, we affirm.

AEMC is a nonprofit cooperative that is the sole provider of electricity to property owners in a ten-county area of northern Georgia. Boston Creek is a partnership that owns a large parcel of mostly undeveloped land in the AEMC service area. The land was historically occupied by a cabin, and in 1979 the prior owner of the land executed a blanket easement in favor of AEMC that he understood to authorize a single electric service distribution line that he requested. AEMC sought the easement pursuant to its bylaws which required each member requesting service to execute a blanket easement over the member’s entire property. The original distribution line remained in place inside a 30-foot-wide clear cut without substantial change until 2008.

The underlying dispute arose when, in the spring of2008, AEMC entered the property to construct an upgraded power line at the location of the original distribution line. The height of the utility poles increased, and certain construction activities such as tree felling and road building allegedly occurred outside of the existing 30-foot clear cut.

Boston Creek disputed AEMC’s entry and construction activity, and AEMC explained that it had a blanket easement over the entire property to conduct any of its activities on any part of members’ property without compensation. AEMC referred Boston Creek to the member bylaws requiring blanket easements.

In March 2009, Boston Creek sued AEMC, alleging claims for inverse condemnation, trespass, and negligence per se. AEMC filed a timely answer, and Boston Creek twice amended its complaint (i) to add a claim for declaratory judgment that the bylaws and the claimed blanket easements were unenforceable, and (ii) to enjoin future activities outside of any existing, proper easements.

The parties then filed cross-motions for summary judgment as to the declaratory judgment and injunctive relief counts, and in May 2010, the trial court granted partial summary judgment to Boston Creek on those counts, concluding that the bylaws and blanket easements were unenforceable to the extent they purported to allow AEMC to establish new easements or relocate existing easements without compensating property owners, even when the easement did not serve the encumbered property. In that order, the trial court also granted partial summary judgment to AEMC, holding that it held prescriptive easements within historically established clear-cuts and that AEMC could continue to operate within the established prescriptive easement on Boston Creek’s property.

In August 2011, Boston Creek filed an amended complaint purporting to convert its claims into a class action on behalf of other members of AEMC whose property had been wrongfully entered upon by AEMC to build electric utility structures. AEMC moved to dismiss the complaint on the ground that Boston Creek had failed to seek leave of court to join additional parties, and Boston Creek filed another amended class action complaint in December 2011.

In December 2011, the trial court dismissed the two amended class action complaints because Boston Creek had failed to seek leave to join additional parties under OCGA § 9-11-21. The court also ruled that in any event, the class members’ claims, brought in 2011 for trespasses allegedly occurring in 2008, would be barred by the one-year statute of limitation in OCGA § 46-3-204.

Thereafter, Boston Creek moved to join the class members under O CGA § 9-11-21, and the trial court denied the motion on the grounds that it failed to meet the class action requirements of OCGA § 9-11-23, and the new parties’ claims would not relate back to the original complaint, rendering them time-barred under OCGA § 46-3-204. The trial court granted Boston Creek a certificate of immediate review, and this Court granted Boston Creek’s application for interlocutory review.

Boston Creek argues that the trial court erred by applying the one-year statute of limitation to the class action claims it sought to bring. We disagree.

OCGA § 46-3-204 provides as follows:

All rights of action accruing against any electric membership corporation growing out of the acquisition of rights of way or easements or the occupying of lands of others by such electric membership corporations shall be barred at the end of 12 months from the date of the accrual of such cause of action; and in cases where any such electric membership corporation is in possession of the lands of others without having condemned the property as provided [in earlier Code
sections], and such electric membership corporation is using any such land of another for any of the purposes for which an electric membership corporation may be created under this article, and the owners of the land took no legal steps to prevent the occupation of the land by the electric membership corporation, the rights of the owner of the land shall be limited to whatever damages may have been caused to his realty by such occupation; and this limitation shall apply to all persons whether sui juris or not.

Here, Boston Creek focuses on the emphasized language and argues that it does not apply to its class action claims to the extent that they are based on an unconstitutional business practice of extracting blanket easements through its bylaws and to the extent that the class action claims seek reformation of AEMC members’ deeds. But this too narrowly construes the Code language by ignoring the full sentence:

All rights of action accruing against any electric membership corporation growing out of the acquisition of rights of way or easements or the occupying of lands of others by such electric membership corporations shall be barred at the end of 12 months from the date of the accrual of such cause of action . . . ,

The Code plainly states that “[a]ll rights of action” shall be barred if they are untimely and grow out of acquisition of easements or the occupying of land. The class is defined to include, inter alia, owners of land onto which AEMC has unlawfully entered to erect structures; thus, Boston Creek and other potential class members cannot avoid the Code’s limiting language by seeking equitable relief in the form of deed reformation, because the Code section applies to “all rights of action.” Also, simply characterizing the wrongful act as a “business practice” does not change the fact that the basis of all claims is an allegedly unlawful means of acquiring an easement or otherwise occupying class members’ land. Therefore, the trial court correctly concluded that the Code section would apply to the class members’ claims.

Moreover, the trial court correctly ruled that the class claims in the amended complaint would not relate back to the timely claims asserted by Boston Creek in its original complaint. OCGA § 9-11-15 (c) provides, in relevant part, that “[w]henever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” Here, however, the original complaint asserted claims against AEMC based on AEMC’s entry onto Boston Creek’s land outside of areas it was entitled to operate. The complaint alleged that AEMC was entitled to operate in certain areas on Boston Creek’s property pursuant to the ripening of a prescriptive easement that accounted for its historical operations on Boston Creek’s property. According to the complaint, this allegedly accounted for an initial oral license granted by Boston Creek’s predecessor, which ultimately became an easement through the operation of time and AEMC’s improvements and unchanging operations on the property. Any potentially wrongful entries were alleged to be outside of these historically occupied areas. Thus, the facts and circumstances of the allegedly wrongful entries are highly particular to Boston Creek, its property, and the previous negotiations between AEMC and landowners of the Boston Creek property. Another plaintiff’s claims would by necessity be based on wholly different facts: other entries onto separate property subject to the unique historical operations particular to that property. This holds true for each potential class member. Therefore, the trial court did not err by concluding that the class members’ claims in the amended complaint would arise out of different conduct, transactions, or occurrences from those alleged in the original complaint.

Because the trial court correctly ruled that the class members’ claims would be barred by the statute of limitation, there was no harm in any procedural violation resulting from the trial court’s application of the joinder rules to the amended class action complaints. Therefore, we need not address the question of whether amending a complaint to change the original plaintiff’s capacity to that of a class representative implicates the joinder process in OCGA § 9-11-21.

Decided March 14, 2013.

Vaughan & Evans, Donald C. Evans, Jr., Hurt, Stolz & Cromwell, James W. Hurt, Jr., for appellant.

Sponcler & Tharpe, Henry C. Tharpe, Jr., Batch & Bingham, MalissaA. Kaufold-Wiggins, T. Joshua R. Archer, for appellee.

Tisinger Vance, Richard G. Tisinger, Jr., Steven T. Minor, amici curiae.

Judgment affirmed.

Andrews, P. J., and Boggs, J., concur.

       (Emphasis supplied.)

       OCGA § 46-3-204.

       See, e.g., Brantley v. Perry, 120 Ga. 760, 761-762 (48 SE 332) (1904) (“The owner of a tenement, in licensing an adjoining land proprietor to enter upon his land to construct a ditch for draining the adjacent land of the licensee, consents to burdening his land with this servitude. If, on the faith of this consent, the ditch is dug and other permanent improvements are made, the license ripens into an easement. The owner of the servient estate has no right to revoke his license after the licensee has executed it and in so doing has incurred expense.”); Mize v. McGarity, 293 Ga. App. 714, 717 (1) (667 SE2d 695) (2008) (“Pursuant to OCGA § 44-9-4, a parol license to use another’s land is not revocable when the licensee has acted pursuant thereto and in so doing has incurred expense; in such case, it becomes an easement running with the land.”) (punctuation omitted).

        See Jensen v. Engler, 317 Ga. App. 879, 883 (1) (b) (733 SE2d 52) (2012) (no relation back if new claims arise “out of wholly different facts”) (punctuation and emphasis omitted). Boston Creek’s argument that the statute of limitation was tolled by coercion or fraud is similarly unavailing. See Daniel v. Amicalola Elec. Membership Corp., 289 Ga. 437, 444-445 (5) (b) (711 SE2d 709) (2011) (no tolling because utility defendant’s trespass was complete and not concealed). Here, it is undisputed that the alleged wrongful activity was openly performed outside the scope of any easement contemplated by the plaintiff.


text:
    A12A2137.
    APPLING v. THE STATE.
    (739 SE2d 816)
   DOYLE, Presiding Judge.

After a jury trial, Robert Earl Appling was convicted of driving under the influence of drugs such that it was less safe to do so, for driving under the influence of alcohol such that it was less safe to do so, and for driving under the influence of two or more substances such that it was less safe to do so. On appeal, Appling argues that the trial court erred by denying his motion for new trial and motion to suppress the results of the field sobriety tests because he was in custody for purposes of Miranda v. Arizona and was not properly advised of his rights. We disagree and affirm for the reasons that follow.

In reviewing a trial court’s ruling on a motion to suppress, we construe the evidence in a light favorable to upholding the trial court’s finding and judgment. We will not disturb the trial court’s ruling if there is any evidence to support it, and we accept the trial court’s credibility determinations unless clearly erroneous. The trial court’s application of law to undisputed facts, however, is subject to de novo review.

Viewing the evidence in the light most favorable to the verdict, at approximately 1:30 a.m. on October 25, 2009, Officer Haney effectuated a traffic stop of a pickup truck after observing the driver, later discovered to be Appling, have difficulty maintaining his lane. After Officer Haney approached the vehicle, he asked Appling whether he had been drinking, to which Appling responded that he had consumed “a couple” of drinks. Haney was a shift supervisor and had a trainee with him and did not handle lengthy traffic stops, so he requested the assistance of Officer Jason Egerton for the stop. Officer Egerton arrived at the scene after about 30 minutes, and Officer Egerton asked Appling to exit the vehicle to perform field sobriety tests.

Officer Egerton suspected that Appling was attempting to “beat” the nystagmus portions of the field sobriety tests, and he requested the assistance of another officer, Chris Dale, who was trained to recognize drug intoxication. When Officer Dale arrived at the scene about 15 minutes later, he parked his cruiser in front of Appling’s truck, while Officer Haney’s and Officer Egerton’s cruisers remained parked behind Appling’s vehicle. Officer Dale administered field sobriety tests on Appling while the three other officers remained at the scene. Officer Dale also administered an alco-sensor test, which was positive for alcohol. At the conclusion of the tests, Officer Dale placed Appling under arrest and read him the implied consent warning for subjects over 21. Officer Dale asked Appling if he would consent to a blood test, and Appling agreed.

Officer Dale transported Appling to a local emergency room in order to have the blood test performed and was told that it would be approximately 40 minutes before a technician would arrive to perform the test. At that time Officer Dale advised Appling of his rights, and Appling asked for an attorney prior to any questioning. When the technician arrived to perform the blood draw, Appling requested to speak to an attorney prior to having the procedure, and Officer Dale explained that under implied consent, Appling could refuse the test or allow the test, but would not be allowed to confer with an attorney beforehand. Based on Appling’s continued insistence to speak with an attorney prior to the test, Officer Dale took Appling to the jail and booked him without having the blood draw performed.

Appling argues that upon Officer Dale’s arrival at the scene as the third police car and fourth officer, Appling was “in custody” for purposes of Miranda and that Officer Dale should have provided the warnings prior to performing any field sobriety tests.

It is well settled that officers are not required to provide warnings under Miranda prior to “administering field sobriety tests during a traffic stop unless the suspect is in custody.”

The test for determining whether a detainee is in custody for Miranda purposes is whether a reasonable person in the detainee’s position would have thought the detention would not be temporary. The subj ective views of the detainee and the officer are not dispositive to the determination. As a general rule, although a motorist is deprived of his freedom of action during a traffic stop, such detention is insufficient to trigger the rights set forth in Miranda. The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous.

Here, Appling has failed to establish that a reasonable person would have believed he was in custody rather than temporarily detained at the time Officer Dale administered the field sobriety tests. None of the officers told Appling that he appeared to be intoxicated or that they intended to arrest him prior to Officer Dale’s formal arrest. Appling was not handcuffed or directed where to stand or sit while waiting on Officer Dale to arrive. Although there were a total of four officers on the scene, the totality of circumstances does not evince an arrest. Officer Haney and the trainee were not in earshot of Appling after Officer Egerton arrived on the scene, and although Officer Egerton called for a more experienced officer to assist and perform the field sobriety tests, he did not place Appling in his cruiser, handcuff him, or direct him to wait at a specific location while waiting on Officer Dale. The mere presence of four officers at the scene does not constitute an arrest as a matter of law, and taking into account all of the circumstances surrounding the detention, it was not necessary for Officer Dale to advise Appling of his Miranda rights prior to administering the field sobriety tests because Appling was not under arrest. Accordingly, the trial court did not err by denying Appling’s motion to suppress or motion for new trial as to that issue.

Decided March 14, 2013.

Valpey & Walker, Gregory W. Valpey, for appellant.

Stephanie D. Woodard, Solicitor-General, for appellee.

Judgment affirmed.

Andrews, P. J., and Boggs, J., concur.

       OCGA § 40-6-391 (a) (2).

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-391 (a) (4).

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

       (Citation and punctuation omitted.) Carter v. State, 319 Ga. App. 609, 610 (1) (737 SE2d 714) (2013).

       See Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

        Arce v. State, 245 Ga. App. 466 (538 SE2d 128) (2000).

       (Citations and punctuation omitted.) Waters v. State, 306 Ga. App. 114, 116 (1) (701 SE2d 550) (2010).

       Compare with Smith v. State, 262 Ga. App. 614, 618-620 (2) (585 SE2d 888) (2003) (detention became an arrest, triggering necessity of Miranda warnings, when, after questioning suspect driver about a theft, officers seized her cell phone and directed her to drive her vehicle to the apartment believed to contain proceeds of the crime and directed her to leave the vehicle with her four-month-old infant therein to enter the apartment).

       See Waters, 306 Ga. App. at 116-117 (1) (additional officers called in to perform field sobriety tests and prolonged stop for those officers to arrive did not transform detention into arrest). See also State v. Padidham, 310 Ga. App. 839, 841 (1), n. 8 (714 SE2d 657) (2011) (collecting cases).


author: Doyle, Presiding Judge.

text:
    A12A2151.
    BROWN v. THE STATE.
    (739 SE2d 819)
   Doyle, Presiding Judge.

Joseph Brown appeals from the denial of his motion for new trial following his conviction by a jury of armed robbery (three counts), hijacking a motor vehicle (four counts), possession of a firearm during the commission of a felony (four counts), aggravated assault, theft by receiving stolen property, fleeing and attempting to elude a police officer, and reckless driving. He contends that (1) the trial court erred by giving the jury an improper instruction on the level of certainty of witnesses’ identification of him, (2) the trial court erroneously denied his request for a hearing on the suggestiveness of pre-trial identification procedures, (3) trial counsel was ineffective, and (4) the evidence was insufficient to support the verdict. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that Brown perpetrated several offenses against multiple victims over the course of three months in 2005. In July, Jamie Penn got off of work at approximately 2:00 a.m. and drove to an automated teller machine to withdraw money. As she returned to her car, a green 1997 Volkswagen Jetta, Brown confronted her with a black semiautomatic pistol and demanded her money. She refused and briefly struggled with Brown, who then pointed his gun at her and asked for her car keys. Brown then drove off in her car with $440 of Penn’s cash. Penn called police from a nearby convenience store. A week later, police located the Jetta abandoned by the side of the road, with the windows newly tinted and the radio removed. At trial, a friend of Brown testified that Brown brought a green Jetta to his house and applied tinting film to the windows.

Later in July 2005, Sara Best was returning home to her apartment complex from her mother’s late one evening. After Best parked her car, Brown approached her, briefly spoke to her, and then attacked her, demanding her car keys. Best started screaming, and Brown fired a shot into the air from a black semiautomatic pistol. Brown then pointed the gun at two nearby witnesses and at Best while he unsuccessfully attempted to use Best’s keys to open the car next to hers. Best ran to her apartment, and Brown fled without taking her car, jumping into a friend’s car who had driven him to the area to find a car to steal. At trial, Brown’s friend described picking up Brown from the scene as well as the black 9 millimeter pistol Brown used.

In August 2005, Wilber Holmes was washing his green Chevrolet Blazer late one evening, when Brown approached him, pointing a black semiautomatic pistol and demanding Holmes’s money and car keys. Holmes stalled him to get a better look at his face, and Brown and an accomplice eventually robbed Holmes of his wallet and the Blazer. Holmes’s vehicle was later recovered by police, and Brown’s fingerprints were found on the vehicle.

In early September 2005, Joseph Inman was returning to his room at a motel late one night, when Brown appeared at his vehicle, held a black semiautomatic pistol to his back, and demanded his keys and wallet. Brown threatened to shoot Inman, took his keys and cash, and sped away in Inman’s 2003 black Nissan 350Z. Inman contacted police, who issued a “be on the lookout” call over the police radio, and an officer spotted the vehicle and executed a traffic stop. The vehicle stopped briefly but then sped off as the officer exited his police cruiser. The officer gave chase at a high rate of speed, and shortly thereafter, the Nissan left the road, flattened two mailboxes, snapped a utility-pole, and crashed into a tree. Brown was trapped inside the driver’s seat, and his passenger was attempting to crawl over Brown when the officer intervened and arrested the passenger. Brown was extricated from the wreckage and taken to the hospital.

Brown was charged with the offenses arising from these events, and after the trial court entered an order of nolle prosequi on certain counts, he was found guilty by a jury of all remaining counts based on the testimony of the victims and other evidence. After a hearing, the trial court denied his motion for new trial, giving rise to this appeal.

1. Brown contends that the trial court erred by instructing the jury that “the level of certainty shown by the witness [es] about [their] identification” of Brown was among the factors to be considered in assessing the reliability of the eyewitnesses’ identification. As Brown correctly points out, the Supreme Court of Georgia has found such instructions to be harmful error when the only evidence of guilt is eyewitness testimony:

In light of the scientifically-documented lack of correlation between a witness’s certainty in his or her identification of someone as the perpetrator of a crime and the accuracy of that identification, and the critical importance of accurate jury instructions as “the lamp to guide the jury’s feet in journeying through the testimony in search of a legal verdict,” we can no longer endorse an instruction authorizing jurors to consider the witness’s certainty in his/her identification as a factor to be used in deciding the reliability of that identification. Accordingly, we advise trial courts to refrain from informing jurors they may consider a witness’s level of certainty when instructing them on the factors that may be considered in deciding the reliability of that identification.

Based on the Supreme Court’s holding in Brodes, the trial court erred by instructing the jury about the eyewitnesses’ level of certainty.

But reversal is not required if it is highly probable that the error did not contribute to the judgment. Here, the crimes against Penn were corroborated by testimony from Brown’s friend that he saw him driving a green Jetta, that he applied tint to the windows (which was depicted in photographic exhibits showing the new tint), and that Brown said he had stolen the Jetta and abandoned it. The crimes against Best were corroborated by testimony from Brown’s co-defendants that they were with him when they dropped him off at Best’s apartment, that they heard screaming and a gunshot, and that they picked up Brown when he was unsuccessful in taking the car parked next to Best’s car. The crimes against Holmes were corroborated by testimony from Brown’s accomplice that he helped Brown take a green Chevrolet Blazer and that Brown used a black pistol. Also, Brown’s fingerprints were found inside the Blazer, which belonged to Holmes. Finally, the crimes against Inman were corroborated by the fact that Brown was found by police in the wreckage of Inman’s car, which had just been stolen from Inman.

Based on the record before us, including undisputed physical evidence and identification of Brown as the perpetrator by witnesses who were well acquainted with him, there was ample evidence — other than from victims unacquainted with Brown — linking Brown to the crimes. Further, the trial court instructed the jury on the State’s burden to prove Brown’s identity beyond a reasonable doubt. Under these circumstances, it is highly probable that the erroneous instruction did not contribute to the verdicts.

2. Brown next contends that the trial court erred by denying his request for a hearing outside the jury’s presence to assess the suggestiveness of pre-trial identification procedures used by victims Holmes and Inman. Brown did not seek a pre-trial hearing, but instead sought a conference outside the presence of the jury to evaluate the standards in Neil v. Biggers. According to those standards, “[i]t is error to allow testimony concerning a pre-trial identification of the defendant if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification.” Instead of holding the mid-trial conference, the trial court denied Brown’s request and allowed him to challenge the identification procedure on cross-examination.

Brown relies upon Perry v. New Hampshire, which addressed the question of whether a Due Process Clause violation occurs when a trial court does not hold a preliminary hearing to evaluate a pre-trial identification procedure. In that case, the United States Supreme Court addressed a narrow factual scenario whereby the victim spontaneously identified the defendant as he stood alone with police in a parking lot. The defendant argued that this amounted to an impermissibly suggestive single-person lineup, and the trial court violated his due process right by denying his pre-trial motion to exclude it. The Supreme Court granted certiorari to address the “question [of] whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police The Court held that a preliminary hearing was not constitutionally mandated because the lineup, however suggestive, was not arranged by police and therefore not a result of police misconduct.

In the present case, with respect to Holmes, he testified that he made extra efforts during his encounter with Brown to delay Brown, get “a good stare at his face... [, and keep] it in my mind exactly what he looked like.” Brown concedes that police then presented Holmes with an array of 2,231 photographs, from which he picked two photographs of Brown and one other, which Holmes ruled out. A subsequent photographic lineup containing the identified images was signed by Holmes, but in light of the process Holmes engaged in to identify Brown from more than two thousand photographs, this did not result in an impermissibly suggestive procedure.

An unduly suggestive procedure is one which leads the witness to the virtually inevitable identification of the defendant as the perpetrator, and is equivalent to the authorities telling the witness, “This is our suspect.” The fact that the accused may be of a different race or ethnicity does not in and of itself make the identification procedure impermissibly suggestive, especially when there are other individuals in the line-up having roughly the same characteristics and features as the accused.

Based on the record before us, the process engaged in by Holmes was not unduly suggestive, and therefore, there was no police misconduct triggering a potential due process violation under Perry. “[D]ue process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary.”

With respect to Inman, Brown’s argument fails for the same reason. Inman viewed a photographic lineup approximately one-and-a-half hours after the robbery. This was a six-person photographic lineup that contained men of the same race and age with similar complexion and hair style. Inman identified Brown based on the lineup. This procedure reveals no undue suggestiveness created by police and no due process violation under Perry.

3. Brown contends that he received ineffective assistance of counsel when his trial counsel failed to seek pre-trial exclusion of the in-court identifications made by Best and Penn because they were impermissibly suggestive and inherently unreliable. Under Strickland v. Washington to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong.

It is well settled under Georgia law that the suggestiveness and reliability standard under Neil v. Biggers “is irrelevant to the admissibility of in-court identifications. Challenges to in-court identifications must be made through cross-examination.” Therefore, any pre-trial motion to exclude the in-court identifications would have been meritless, and Brown cannot meet his burden under Strickland on that basis.

4. Finally, Brown argues that the evidence was insufficient to support the verdict. When reviewing the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

(a) As to the crimes involving Best, Penn, Holmes, and Inman, as well as evading police, the evidence sufficed to support his conviction for the reasons explained in Division 1.

(b) Regarding the crime of theft by receiving stolen property, Brown argues that there was insufficient evidence that he received the pistol knowing that it was stolen. But there is evidence that the pistol belonged to Jeremy Privett’s father, and that Privett had taken it without permission from his father’s closet. Brown, who was a friend of Privett, was with Privett when he took the gun from his father’s closet, and when it subsequently was stolen from Brown’s car at a social cookout they attended. Brown knew of the theft of the gun, and the pistol Brown used in the robberies was a black Beretta 9 millimeter pistol with the same serial number as the black Beretta 9 millimeter pistol stolen from Privett’s home. Based on this evidence, the jury was authorized to conclude that Brown knowingly received or retained the pistol in violation of OCGA § 16-8-7. Accordingly, this enumeration fails.

Judgment affirmed.

Andrews, P. J., and Boggs, J., concur.

Decided March 14, 2013.

Tanya D. Jeffords, for appellant.

R. Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

       OCGA § 16-8-41 (a).

       OCGA § 16-5-44.1 (b).

       OCGA § 16-11-106 (b).

       OCGA § 16-5-21 (a) (1).

       OCGA § 16-8-7 (a). '

       OCGA § 40-6-395 (b) (5) (A).

       OCGA § 40-6-390 (a).

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

        Brodes v. State, 279 Ga. 435, 442 (614 SE2d 766) (2005).

       See Lewis v. State, 291 Ga. 273, 278 (4) (731 SE2d 51) (2012).

       See id.; Conway v. State, 281 Ga. 685, 689 (2) (642 SE2d 673) (2007) (noting that Brodes addressed identification hy witnesses to whom the perpetrator was not previously known and no harmful error occurred when the witnesses were well acquainted with the defendant); Rabie v. State, 286 Ga.App. 684,687 (2) (649 SE2d 868) (2007) (other evidence linked defendant to the crime).

       409 U. S. 188, 199-200 (III) (93 SC 375, 34 LE2d 401) (1972) (“[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal,... and the length of time between the crime and the confrontation.”).

        Miller v. State, 270 Ga. 741, 743 (2) (512 SE2d 272) (1999). See Brooks v. State, 285 Ga. 246, 248-249 (3) (674 SE2d 871) (2009).

       _U. S._(132 SC 716, 181 LE2d 694) (2012).

       See Perry, 132 SC at 721 (I) (A).

       (Emphasis supplied.) Id. at 723 (I) (B).

       See id. at 730 (II) (C) (“the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement”).

       (Citation and punctuation omitted.) Humphrey v. State, 281 Ga. 596, 597 (1) (642 SE2d 23) (2007).

       (Punctuation omitted.) Armour v. State, 290 Ga. 553, 554 (2) (a) (722 SE2d 751) (2012).

       See id. See also Williams v. State, 290 Ga. 533,536 (2) (a) (722 SE2d 847) (2012) (stating - in dicta that lineup containing “six African-American males of similar appearance” was not unduly suggestive); In the Interest of L. R., 219 Ga. App. 755, 757 (3) (a) (466 SE2d 653) (1996) (appellate court’s examination of photographs supported conclusion that the photographic lineup procedures were not unduly suggestive).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       See id. at 687-688, 694 (III) (A)-(B).

       See id. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

       (Footnote omitted.) Hunt v. State, 279 Ga. 3, 4 (2) (608 SE2d 616) (2005).

         See Porter v. State, 292 Ga. 292, 294 (3) (a) (736 SE2d 409) (2013) (“[Cjounsel’s failure to make a meritless objection cannot constitute evidence of ineffective assistance”).

       (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       OCGA § 16-8-7 (a) defines the offense as follows: “Aperson commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen. . .. ‘Receiving’ means acquiring possession or control. . ..”