DANIELS v. THE STATE.
A96A0375
Court of Appeals of Georgia
DECIDED JUNE 28, 1996.
221 Ga. App. 32 | 473 SE2d 239
JOHNSON, Judge.
Plaintiff‘s testimony concerning the value of its inventory is vague and equivocal at best, and as such, must be construed against it. Wilson v. Southern R. Co., 208 Ga. App. 598, 602 (2) (431 SE2d 383) (1993); Marett v. Professional Ins. Careers, 201 Ga. App. 178, 182 (1) (c) (410 SE2d 373) (1991). Accordingly, we conclude that the trial court did not err in determining that plaintiff‘s claim for lost profits was too speculative to go to a jury.
4. Plaintiff contends that the trial court erred in refusing to allow it to amend its complaint to include a claim for diminution of rent. We agree. It is undisputed that no pretrial order was entered in the case, and plaintiff‘s motion to amend was made before any evidence was taken at trial. Accordingly, because there is evidence in the record that defendant breached his duty to repair the roof by failing to replace it, and diminution in rent is an appropriate remedy for such a breach, the amendment should have been allowed as a matter of right. See
Judgment affirmed in part and reversed in part. Smith, J., concurs. Andrews, J., concurs in judgment only.
DECIDED JUNE 28, 1996.
Honigman, Miller, Schwartz & Cohn, Charles V. Choyce, Jr., for appellant.
Schwall & Schwall, Emory A. Schwall, for appellee.
JOHNSON, Judge.
Michael Renard Daniels appeals from his convictions of armed robbery, possession of a firearm during the commission of a felony, and possession of a sawed-off shotgun, in connection with the armed robbery of a convenience store.
1. Daniels contends that the trial court erred in denying his motion to suppress evidence of a pretrial photographic lineup from which the victim had identified him, and to suppress any in-court identification of him by the victim. The victim was able to observe the
Furthermore, the deteсtive‘s instructions to the victim prior to the photographic lineup not to pay attention to hairstyles, backgrounds, clothing, or facial hair did not unduly emphasize the length of defendant‘s hair. In any event, the victim testified that the perpetrator wore a wool cap over his hair so that hair played no part in the identification.
Considering the totality of the circumstances, we conclude that any suggestiveness in the pretrial identification procedures did not rise to a substantial likelihood of mistaken identification. Therefore, the trial court did not err in refusing to suppress the victim‘s identification testimony at trial or evidence of the victim‘s pretrial identification of Daniels. Sanders v. State, 204 Ga. App. 37, 39 (5) (419 SE2d 24) (1992); Jones v. State, 251 Ga. 361, 362 (1) (306 SE2d 265) (1983).
2. Contrary to Daniels’ assertion, therе was sufficient proof that the barrel of the shotgun found in his possession was less than 18 inches long, as required for a conviction under
3. Daniels argues that the trial court erred in denying his motion to suppress evidence found in an automobile in which he was a passenger. He contends that the reason the officer gave for stopping the car, that the driver made an improper turn by turning without sig-
“When reviewing a trial court‘s decision on a motion to suppress, this court‘s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court‘s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) State v. Burnett, 220 Ga. App. 133, 134 (469 SE2d 324) (1996).
The parties in this case have been unable to locate the transcript from the suppression hearing and have entered into a written stipulation in which they agree that the officers’ testimony at the suppression hearing was the samе as their testimony at trial. The trial transcript shows that an eyewitness to the Gwinnett County armed robbery described the car used to flee the scene as a red Mustang GT with chrome-plated wheels. The officer relayed this information to a dispatcher so that a lookout could be broadcast to DeKalb County police, since the car was seen trаveling south toward DeKalb. Atlanta Police Officer Wareham testified that while he and Officer Ramsey were on patrol, he observed a red Mustang with chrome wheels make an “improper” turn. Wareham later elaborated by stating that the driver turned without signaling. Daniels was in the passenger‘s seat. Wareham added, though without elaborating on this point, that he was alerted by DeKalb County of the vehicle. Likewise, Officer Ramsey referred to the car as “the listed auto.” The record contains no other testimony from these officers concerning their basis for the stop. Considering the unrefuted testimony that the turn was improper, that the car was the subject of a police bulletin, and the deference to be given the trial сourt in its ruling on the motion to suppress, the trial court‘s decision must be affirmed.
The dissent relies upon Clark v. State, 208 Ga. App. 896 (432 SE2d 220) (1993), and State v. Jones, 214 Ga. App. 593 (448 SE2d 496) (1994), as authority for its position that the stop was not justified. Neither case requires a reversal here. In addition to the fact that Clark serves as physical precedent only, both cases are clearly distinguishable from the case before us.
In Clark, there was clear evidence that the stop was pretextual
Similarly, in Jones there was some evidence that the stop was pretextual and that the defendant violated no traffic laws. A police car was parked on the street with its blue lights activated when Jones approached and then made a U-turn without signaling. The officer in that case testified that in his experience, many people for various reasons attempt to turn back when they see police vehicles or blue lights. This Court upheld the trial court‘s grant of the motion to suppress, holding that “[b]ecause no other drivers were on the road, [Jones] was not required to signal his intention to turn.” Id. at 594.
Unlike in Clark and Jones, where it was clear from the record that no traffic laws were violated, we have no evidence before us refuting the officer‘s testimony that the turn was improper. There being evidence to support the trial court‘s judgment, we affirm it. See generally State v. Holcomb, 219 Ga. App. 231, 233 (464 SE2d 651) (1995).
We also note that while it is unclear from the record whether the officers heard the radio broadcast before or after making the stop, we need not reach the question of whether that information itself provided sufficient basis for the stop, because the unrefuted testimony that the turn was improper was sufficient standing alone.
4. Next, Daniels contends that the trial court erred in admitting as similar transaction evidence a copy of his conviction for armed robbery predicated on a guilty plea which he now contends was not freely and voluntarily given. This argument is essentially the same as that decided adversely to him in McCann v. State, 203 Ga. App. 880, 881 (2) (418 SE2d 144) (1992). We decline Daniels’ invitation to overrule that decision.
5. Three enumerations of error concern the adequacy of the evidentiary foundation for admission of a videotape. In each instance, Daniels argues that the State failed to satisfy the criteria set forth in State v. Berky, 214 Ga. App. 174 (447 SE2d 147) (1994). We note that the Berky decision was vacated by the Supreme Court in
We note at the outset that the videotape at issue did not depict the crime for which Daniels was charged in this case, but showed a robbery of another convenience store by a man wielding a shotgun who escaped in a small red car, introduced by the State as evidence of a similar transaction. That robbery occurred the morning after the one with which Daniels was charged in this case. Daniels pled guilty to the armed robbery and possession of a sawed-off shotgun captured in the videоtape. By pleading guilty, Daniels admitted having committed the offenses alleged in the indictment, which were remarkably similar to the crimes with which he was charged in this case. A certified copy of his conviction in that case was entered into evidence as a similar transaction.
Witnesses at trial presented overwhelming evidence of his guilt. The convenienсe store clerk in this case testified that the perpetrator wore a woolen cap or mask and carried a foot-long shotgun and a canvas bag. He identified Daniels in a pretrial photographic lineup and again at trial as the man who robbed him with a shotgun. A customer who arrived at the store just as the robber was leaving testified that the robber fled in a red Mustang with chrome wheels. When police later stopped the red Mustang with chrome wheels in which Daniels rode, they found a sawed-off shotgun, a blue ski mask and a cloth bag. In light of the overwhelming evidence of his guilt, admission of the videotape of a robbery to which he pled guilty was harmless error. See Stewart v. State, 184 Ga. App. 289 (361 SE2d 268) (1987); see generally Ansley v. State, 198 Ga. App. 452, 453 (402 SE2d 73) (1991).
Judgment affirmed. Birdsong, P. J., Pope, P. J., Andrews, Blackburn and Smith, JJ., conсur. Beasley, C. J., concurs in judgment only. McMurray, P. J., and Ruffin, J., dissent.
McMURRAY, Presiding Judge, dissenting.
I respectfully dissent as I believe the trial court erred in denying defendant‘s motion to suppress evidence found in the automobile in which defendant was a passenger. The evidence in question, including a sawed-off shotgun, was found after a stop of the vehicle for making a turn without signaling. As construed in Clark v. State, 208 Ga. App. 896, 897 (1) (432 SE2d 220),
My reading of the trial transcript in the case sub judice reveals no evidence that reasonable safety required a signal to precede the turn made by the vehicle in which defendant was a passenger. I do not know what type of turn defendant made, the conditions during which the turn was made, whether reasonable safety required the use of a turn signal, or any other factors which would support the officers’ conclusory testimony that the vehicle in which defendant was riding turned improperly. Indeed, if reasonable safety was not involved, then a turn signal was not required рursuant to
Cоntrary to the majority‘s view of the evidence, I find nothing in Officer Wareham‘s and Officer Ramsey‘s trial testimony which in any way indicates that the officers had an independent basis for stopping the car due to a police radio broadcast concerning it. Indeed, it is my view that even a liberal reading of Officer Wareham‘s and Officer Ramsey‘s testimony does not authorize a finding that these officers were aware that a police alert had been dispatched on the suspect vehicle at the time of the stop. And to this extent, I am compelled to note that the majority‘s statement — “Wareham added, though without elaborating the point, that he was alerted by DeKalb County of the vehicle” — leads readers into bеlieving that Officer Wareham testified that he and Officer Ramsey stopped the suspect vehicle because a police lookout had been dispatched for the vehicle from DeKalb County. The fact is, Officer Wareham‘s testimony supports no such inference. Indeed, the portion of Officer Wareham‘s trial testimony upon which the majority relies amounts to nothing more than the officer‘s unresponsive answer to a question concerning whether he had made further examination of the suspect vehicle after the stop. The entirety of Officer Wareham‘s testimony regarding the reason he and Officer Ramsey stopped the suspect vehicle, as well as the portion of Officer Wareham‘s testimony the majority rеferences in support of the conclusion about the DeKalb County alert, provides as follows:
“[STATE‘S ATTORNEY:] Were you involved in the arrests of the occupants of a red Mustang on that day? [APPELLANT:] Yes, ma‘am, I was. Q. Please tell the jury how that occurred. A. Okay. On the date and time in question, myself and Officer Ramsey were patrolling
around Eastlake Meadows — it‘s a housing develoрment in the City of Atlanta — when we observed the vehicle that the Accused was a passenger in. The vehicle was driven by a Rocky Turnquest. We observed the vehicle making an improper turn. At that time we bluelighted the vehicle and began to approach the vehicle. At that time Officer Ramsey observed a shotgun sticking from underneath the passenger‘s seat. At that timе we removed the subjects from the vehicle and placed them under arrest. Q. Can you describe the car that they were driving? A. It was a red Mustang with chrome wheels. Q. I show you a photograph that has been marked as State‘s Exhibit 5. Can you identify that photograph? A. Yes, ma‘am. I took this picture. Q. And when did you take that picture? A. On the date of the incident. Q. And what is that a picture of? A. That‘s a picture of the Mustang that the Accused was a passenger in. It‘s on the flat bed. Q. When you say the Accused, who are you referring to? A. Mr. Daniels. Q. And is he the same person who was the passenger in that Mustang on November 23rd of 1993? A. Yes, ma‘am. Q. Did you have occasion to make any further examination of the car yourself? A. Yes, ma‘am. We were alerted by DеKalb County of the vehicle. Q. Did you remove — did you yourself remove any other items from the car? A. I removed a hood and a beige bag containing currency.”
Likewise, the majority‘s statement — “Officer Ramsey referred to the car as ‘the listed auto‘” — leads readers into believing that Officer Ramsey testified that he and Officer Wareham stopped the suspeсt vehicle because it was “listed” on a DeKalb County police alert for the vehicle. The fact is, Officer Ramsey‘s use of the words “the listed auto” is not a reference to a DeKalb County police alert, but appears merely as jargon the officer employs in describing events. The entirety of Officer Ramsey‘s testimony regarding the reason he аnd Officer Wareham stopped the suspect vehicle, as well as the portion of Officer Wareham‘s testimony regarding “the listed auto,” provides as follows:
“[STATE‘S ATTORNEY:] Were you on duty on November 23rd, 1993? [OFFICER RAMSEY:] Yes, I was. Q. On that date were you involved in the arrests of the occupants of a red Mustang? A. Yes, I was. Q. Tell the jury how that occurred. A. On the listed date, myself and Officer Wareham were on patrol in the Eastlake Meadows Housing Development. We were driving in the housing development when Officer Wareham saw the listed auto make a left turn without using a turn signal. Officer Wareham effected a stop on the vehicle, at which time Officer Wareham approached the driver‘s side. I approached the passenger‘s side.”
Since this Cоurt‘s responsibility in reviewing the trial court‘s decision on a motion to suppress is “‘to ensure that there was a substantial basis for the decision, (cit.)‘” (State v. Goodman, 220 Ga.
I am authorized to state that Judge Ruffin joins in this dissent.
DECIDED JUNE 28, 1996.
David L. Whitman, for appellant.
Daniel J. Porter, District Attorney, Nancy J. Dupree, Assistant District Attorney, for appellee.