*1 203 Bеrryhill hyperventilated during interview, 5. When the law sought physician, enforcement officer broke it off and who stated Berryhill if that would be fine. The State asked the officer he Basically, interview, “I continued the and the officer stated: tried. questions, happened him
same asked what and he wouldn’t answer anything Berryhill else besides a statement that he muttered.” jury’s presence, announced that he had a motion to make outside the jury Berryhill and the ground was removed. then moved for a mistrial on the attempting put jury was thаt
that State before the Berryhill questions. jury The court refused to answer instructed the “disregard any suggested [Berryhill] answer that refused any question” during Berryhill interview, and answer renewed his motion.
Assuming testimony improper, harmless, that the was was it response point directly the officer’s “did not at or at the strike State, 452, substance of v. 268 Ga. defendant’s defense.” Williams omitted). (3) (490 381) (1997) (citation punctuation 454 SE2d (4) (646 219) (2007). Tennyson State, 92, See also Furthermore, 282 Ga. 94 SE2d gave appropriate instruction, the court an curative denying and there was no abuse of discretion in the motion for a (661 557) State, 521, mistrial. Whitaker v. 283 Ga. SE2d (2008). Finally, Berryhill Peyton’s
6. contends that before death certifi- evidence, cate was admitted into the word “Homicide” should have been redacted from the statement of the cause of death. There was “ nothing error; no ‘the word “Homicide” was more than an [Cit.]” agency State, indication of the immediate of death.’ Bennett v. (453 458) (1995). 265 Ga. SE2d Judgments All the Justices concur. affirmed. 2009.
Decided March Timothy Carini, Baker, Eidson, Jason B Harold B. L. Clinton L. appellant. IV, for Lott Attorney, Christopher Cohilas, Fachini,
Denise D. District S. Attorney, appellee. Assistant District
S08G0722. GEORGIA DEPARTMENT OF PUBLIC SAFETY
v. DAVISet al.
(676 1) Justice. Carley, traveling pickup Trooper David behind a carrier, mail he Davis, truck driven Pamela who is a rural when *2 approaching began running him in the that were radar on vehicles using Phillips in a Ms. Davis’ truck as a cover other lane. blocking. stopped technique truck, Ms. Davis her which known as top, signaled flashing light turn, a left and waited had a strobe on stopped, he realized that Ms. Davis had to clear. Once traffic braked as hard as possible, with unable to avoid a collision but was her truck. brought (Appellees) Scott Davis suit
Ms. Davis and her husband
Safety.
Department
against
Department
moved for
Public
The
of
(6)
§
summary judgment
on the
OCGA 50-21-24
based
sovereign immunity
Georgia Tort Claims Act.
in the
to the waiver of
Appeals
motion,
affirmed
denied the
and the Court of
The trial court
Safety
interlocutory appeal. Department
Davis, 289
Public
v.
on
(656
178) (2007).
granted
App.
to consider
SE2d
We
certiorari
Ga.
§
analyzed
Appeals correctly
OCGA 50-21-24
whether the Court
(632
(6)
Canady,
light Georgia Forestry
105) (2006).
Our reviewed sovereign immunity having exceptions other states to the waiver of (6), § nearly 50-21-24 which are identical оr identical to OCGA Virginia. Georgia approach and West we selected the of Texas supra Forestry 827-830. Both decisions relied Comm. v. at (Tex. upon Canady, Terrell, Texas v. 588 SW2d 1979) (W. 1993), Beckley Crabtree, 428 SE2d 320-321 Va. (6).
fully support proper construction of OCGA 50-21-24 The approach balanced of Terrell and includes a test for deter mining alleged making imple whether the losses result from the mentation of a decision:
Resolution of the issue of whether a loss or claim occurs as providing protec- a rеsult of the method of law enforcement *3 requires determining allegedly negligent tion whether the policy act resulted in from the manner which a formulated regarding protection implemented. such was
Beckley supra allegedly Crabtree, v. test, at 321. Under this if the policy regarding from in act resulted the manner which a police protection implemented, alleged the losses are not a result implementation and, therefore, of that liability. the state is not immune from purpose Canady, necеssary, It was not our in nor was it and to question, address the in answered Terrell of when the alleged providing police losses “result from” the method of or fire protection. only question Georgia We touched on in in this dicta Forestry Canady, supra 829-830, Comm. footnote, v. at fn. 2. that (W. 2002) Burdette, 614, we noted that Smith v. 566 SE2d Va.
“appears limiting coverage exception.” to be more Georgia Forestry Canady, supra Indeed, Comm. v. at fn. 2. contrary seems, of Burdette to to exclude the
implementation policy of from thоse acts or which omissions consti- providing police protection. However, tute a method of we attempted briefly clarify understanding Beckley then to our of as holding “negligent employees acting pursuant policy that acts of to subject application sovereign immunity would be to the of while negligent Georgia Forestry acting pursuant policy acts of not would not.” Canady, supra By construing
Comm. v. at fn. 2. Beckley subjecting only negligent employees “acting acts of pursuant policy” sovereign immunity, of we making were the same critical distinction made both Terrell and Beckley negligence. Although between two forms of the dissent appearing only dismisses that distinction as Burdette and as a “sleight clearly following language hand,” it is set forth Beckley completely ignored dissenting Terrell which is opinion: negligence causing injury formulating “[I]f the an lies — determining police i.e., of the method of — government provide
protection immune remains employee liability. acts however, an officer оr If, policy,government negligently carrying that out (Emphasis [Tort Claims] [Cit.] may omitted.) Act.” exist under the supra). (citing Beckley supra Terrell, Texas v. Crabtree, v. danger circumventing Only is there a in the former situation policymaking] [on via a “an indirect attack entity governmental brought against on the based lawsuit alleged negligence state police, employee providing law enforce of a state Georgia Forestry pursuant policy.” Comm. ment, or fire danger Canady, supra here if Ms. Davis’ There is no such v. at 830. imрlementation “injury of a formulated result from the did not supra. policy.” Crabtree, during implementation injury occurred
The fact injury of whether that control the determination does not making “result[ed] The state from” the *4 injury, alleged negligence causing liability if an from is immune policy, injury during implementation in of lies some occurs which liability policy is not immune from in the itself. The state defect policy, employee implementing a non-defective but does its is where Although may the state be immune so in a manner. creating policy liability negligence in a certain which causes for implementation, injury during for such is unavailable allegedly negligent employee’s is not act or omission which an any by policy. authorized Safety Department undisputed that the of Public
It is policy detecting apprehending individuals who and has a speed by vehicles. limit use of radar and motor exceed the subject negli- policy decision is not to an attack Such a policy, [the Claims] gence however, under Tort Act. This any obviously directing to strike does not include the officer speeder. path apprehending a in his vehicle Beckley supra). supra (quoted Crabtree, v. Terrell, Texas v. State of Appeals recognized, . . . contains evi “the record As the Court Board found that that the State Patrol Crash Review dence Trooper Phillips operate preventable did not and that accident ” policy training.’ Depart and his car ‘in a manner consistent with supra Safety evidence, Davis, 23. Under this ment Public v. at “acting pursuant policy.” Georgia clearly therefore, he was not supra “Basically, Forestry 830, fn. 2. he followed Comm. v. at pay policy closely decision, This is not a but too and did not attention. simple, preventable negligence.” Department Safety rather Public supra. Any negligence part Davis, v. such “was not subject Therefore, formulated is for injuries resulting negligence, any, highway patrol from the if colliding [Ms. Davis’] Terrell, man with vehicle.” State Texas v. supra (quoted Beckley supra). Crabtree, v. contrary holding meaningless statutory
A would render “resulting that the state is not liable for losses from” a policy provision respect enforcement, decision with of law police, protection. Department’s or fire Under the construction of (6), negligence the state is not liable for the of a employee state who is at the time a method of providing police protection, regardless of how unrelated that negligence may any be to decision. Such a construction would effectively approach Canady, disregard eliminate the balanced very precedent heavily by case, of the converting most relied on general
an exclusion of decisions into “a exclusion any providing police or act omission that occurs while an officer is public. Legislature [T]he fire . did not intend . . supra Terrell, create such a broad Texas v. at exclusion.” State of supra Crabtree, 787. See also at 320.
Accordingly, Appeals correctly the Court of affirmed the trial summary judgment court’s deniаl of the motion for Department. filed Judgment except concur, Benham, J., All the Justices affirmed. judgment only J., Sears, Melton, J., who concurs in the C.
who dissent. *5 dissenting. Justice, Chief
SEARS, majority significantly holding Because the weakens the of Geor gia Forestry Canady1 Commission v. that the State is entitled to sovereign immunity employees for the acts of its when respectfully executing policy, I law enforcement dissent. Assembly generally
Although the General
has
waived the State’s
employees
sovereign immunity
for “the torts
state officers and
acting
emplоy-
scope of their
duties or
while
within the
official
exempted
any liability
expressly
from
ment,”2 it also
that waiver
resulting
provide,
. . . the failure
or the method of
“losses
from
to
providing,
police,
protection.”3
analyzing
enforcement,
or fire
law
1
(632
105) (2006).
this to sovereign § that 50-21-24 to mean construed OCGA by employ- only making applied state “to decisions not the relating including amount, the disburse- those to ees and officers provide equipment personnel to law enforce- ment, and and use of police services,” “to the acts and but also ment, executing implement- and officers omissions of state aspect majority ing policies.”4 latter The eviscerates the those holding Canady by the State is not immune that running performed negligently Trooper Phillips radar because acting and thus could not have been under pursuant facts of this case reading Canady policy.5 do not A and the record to fair support majority’s conclusion. any applicable pоlicies, majority discussion of
The omits Trooper Phillips’s First, actions. several that directed there are (b) duty provides primary § specifically that it is a 35-2-32 OCGA state public Trooper Phillips “patrol patrol officers such as engage highways and to “traffic enforce- roads and of this state” Policy Policy Second, of the Manual of ment.” Department No. 17.14.4 engage Safety troopers directs state of Public Policy specified Third, No. in OCGA 35-2-32. activities such as that places provides in its the State Patrol radar devices 6.08.02 that by reducing speed patrol limits and “save lives cars to enforce troopers policy permitting also has a crashes.” The State Patrol types specifically approved only it. It is of radar devices use undisputed places in its radar devices the State Patrol multiple trooper speed permit vehicles while to track the vehicles moving trooper trooper’s then monitor is and that the must car display and determine on the dashboard to trаck the cars his radar which of the cars Policy speeding. notes that Fourth,
is
No. 11.01.2
Depart-
primary responsibility” enforcement is a
“traffic law
determining types
grants troopers
of enforce-
“latitude
ment and
ment
safety
motoring
to be taken ...
to ensure the
action
severity
public [and]
of traffic crashes.”
reduce the number and
foregoing,
shows that
Based on the
the record
directing
acting pursuant
specific policies
him to enforce traffic
*6
policy,
using
put
place by
Patrol
and was
laws, was
a device
a State
by policy
exercising
granted
him
determine the
the discretion
to
to
appropriate type
take. The record thus
of enforcement action to
closely
Phillips’s
related to
shows that
actions were
question.
policy
negligently
In
accident in
when he
caused the
4 Canady,
5 Majority opinion, p. 207. language majority opinion, injuries Ms. Davis’s “resulted specific policies. from” the execution of a set of To hold that the § apply of OCGA 50-21-24 does not in this case would permit policy] [on brought against “an indirect attack via a lawsuit governmental entity alleged negligence a state based on the of a state employee providing police, protection pur- enforcement, law policy.”6 Contrary majority’s suant to to assertion, there is nothing Canady immunity in this limits policy defects itself.7
Although majority Phillips “may states that have been implementing policy majority when collision,”8 he caused the implementa- concludes that the did accident not “result from” the policy Phillips failing tion of proper because was to maintain a driving. According majority,
lookout while he was to the simply negligent “clearly ‘acting and thus was not ”9 pursuant policy.’ majority reason, For this concludes the immunity. Acting negligently pursuant State is not entitled to policy, mutually concepts. however, are not exclusive As we stated Canady, “negligent employees acting pursuant acts of subject sovereign immunity.”10 would be to the contrary majority’s Moreover, assertion, v. Crabt supрort ree,11 on which this Court relied in does not majority’s holding. reasoning supports holding fact, Phillips’s conduct. In after a sheriff had completed putting shotgun an arrest and was his in the trunk of his shotgun accidentally discharged, injuring person. car, the another Virginia Supreme phrase The West Court held that the providing police, “the method of law enforcement or fire (a) (5) protection” contained W.Va. Code 29-12A-5 refers to the formulation and police,
related to how
law enforcement or fire
provided.
should be
Resolution of the issue of whether a loss
providing
or claim occurs as a result of the method of
law
protection requires determining
enforcement
whether the
allegedly negligent act
resulted from the manner which a
6 Canady,
formulated mented.12 quotation majority interprets sentence of this as the last
The allegedly negligent if act resulted from test, this the follows: “Under regarding police protectiоn was in which a the manner implemented, implemen- alleged not the result of that the losses are As I therefore, not immune from the state is tation liability.”13 majority completely Beckley. misreads demonstrate, will the discharge held that the accidental In the court during implementation shotgun the of a did not occur providing a method of law enforcement.14 could not be considered by majority, reasoning, is as omitted from discussion the The court’s follows: employed by who the law enforcement officеrs
The methods complete suspect before the the were detained and arrested simply returning gun discharged. a Sheriff Crabtree was shotgun occurred. to the trunk of the car when the accident scope Although within the this incidental action occurred closely necessary employment, it was not so related component effectuating a the arrest as to be considered providing “the method of law enforcement protection.”15 Beckley have concluded that the Stаte was Thus, the court would immunity shotgun’s discharge during if had occurred entitled to discharge court, would have the arrest. “necessary effectuating “closely arrest,” been related” and “negligent employee’s would have “resulted and the manner which a formulated act” policy regarding such contrary demonstrates, discussion As this implemented.”16 actually provides Beckley majority’s immunity test, the test statement alleged negligent manner is if the act “results from” the policy regarding police protection implemented. a is which heavily foregoing analysis Beckley, relied in The on which we Trooper Canady, supports finding case, this Phillips’s closely conduct was related to the provide immunity, it demon- addition, In strates the because did not position fallacy majority’s that, if does assertion 12 Id. at 321. 13 Majority opinion at 205.
14Beckley, Id. [16] 15 Id. 428 SE2d at 321.
211 prevail, immunity any not the result would be absolute act of an employee providing law enforcement protection.17 Virginia majority
The West test that the to attributes actually subsequent arosе in the case of Smith v. Burdette.18 The Virginia’s exception Smith court construed West law enforcement apply negligent employees executing policy not to to acts of in and decision-making planning process developing limited it to the and in disapproved Beckley adopting The court in the In process.19 rule, Smith relied on Kansas’s narrow construction of its exception.20 alleged negligent test, Under the Smith if an act results from the employee implements policy regarding police in manner which an protection, immunity. problem the State is not entitled to The for the majority Canady, is that this was not the test in we specifically disapproved of Smith and Kansas’s narrow construction Canady, of its In we noted that Kansas limited its exception.21 “ exception [policy] type [such] to ‘basic matters as the and number police necessary operation of fire trucks and cars considered for the respective departments.’ We declined to follow Kansas’s ”22 adopt employees’ narrow negligent and were executing policy careful to a rule that exception23 scope acts fall within the of our Canady, specifically Moreover, in footnote two of we exception.24 “[u]nder declined to follow Smith and held that our construction of Virginia’s position, negligent employees acting West pursuant earlier acts of policy subject sovereign would be to the immunity negligent acting pursuant while acts of not majority attempts sidestep explicit would nоt.”25 The employee that the acts of an absolutely immunity by stating are entitled to negligence referring really negligence to which we were was not employee negligence formulating but the This policy.26 sleight plain language Canady. of hand is at odds with the we used majority improperly Supreme
The also relies on the Texas Court’s decision in Texas v. Terrell27 and our discussion of it Canady. Canady, support holding exception our that the
17Majority opinion at 207.
18
(W 2002).
19 Id. at 618. 20 Id. at 617-618.
21
See
waiver
implementing”
employees “executing
applicable
to acts of state
provided
quoted
policies,
Texas
from Terrell that
we
a sentence
“
. . . which constitute the execution
covered ‘those acts
*9
”28
only
making
decisions.’
This is the
the actual
of those
(such
any
synonyms
of its variations or
the word “execution” or
time
opinion,
implementation) appears
Texas
in
and the
the Terrell
as
meaning
explain
of the word. Later Texas cases
did not
the
court
apрlies only
exception
to the formulation
that the
have clarified
by
employees.29
Thus,
state
not
construed,
odds with the clear rule we
Terrell,
it has been
is at
adopted Canady
applying
acts
for
our
executing
striking
proper
Although
majority’s
for
the
I share the
concern
treasury
inherently
protecting
and the
the State
balance between
sovereign
that can occur
the strict
unfair results
immunity,30
majority’s position
balance too far to the
the
strikes the
§
harming
treasury.
50-21-21
the State
As stated OCGA
side of
flexibility
exerting
(a),
government
control
does not have
State
provide
range
liability.
exposure
Instead,
broad
it “must
over its
throughout
perform
range
a broad
of functions
of services and
liability may
regardless
exposure
be
state,
of how much
entire
treasury
majority’s position,
will be
the State
involved.” Under
exposed
during
hundreds or
if,
for the
to tremendous
pursuant
per day
troopers
that State
act
thousands of times
equipment
policies regarding
use of their
and the execution
troopers
negligently.
duties,
more of the
acts
Under
their
one or
treasury
protected
position,
will be
when State
dissent’s
closely
necessary
troopers’
related or
to the execution of
actions are
protected
negligence
policy,
for the inevitable
that will
but will not be
closely
executing policy.31
not
related to
arise when their actions are
foregoing
majority opinion.
reasons, I dissent to the
For the
BENHAM, Justice,
judgment
only.
concurring
trooper
agree
majority
is not entitled
Beсause I
with the
that the
§
sovereign immunity
but I cannot
under OCGA 50-21-24
28
788).
Terrell,
Canady,
(quoting
Decided March 2009. Attorney Baker, General, Pacious,
Thurbert E. Kathleen M. Deputy Attorney General, Pinkston, Loretta L. Senior Assistant Attorney Attorney General, Bunner, L. Robert Assistant General, for appellant.
Zipperer, Ralph Beauvais, Lorberbaum, Lorberbaum & R. Eric appellees. Gotwalt, R. Felser, Paul H.
S08A1500. PHILLIPS v. THE STATE.
(675 1)
Benham, Justice. Appellant guilty Renaldo Tramone was found robbery 2002 malice murder and armed of Mamadou Bah and imprisonment sentenced to life count, on each to be served consecu- tively.1 appeal, legal On he contends reversible error was committed during his trial and maintains he was not afforded effective assis- examining appellant’s tance from dеfense counsel. After enumerated judgment errors, we affirm the of conviction. presented
1. The State evidence that Mamadou Bah suffered gunshot upper fatal arm, wounds from a bullet that entered his left through lung lodged right lung. went his heart, left and his in his pathologist performed autopsy body The forensic who an on the the victim testified the fatal shot was fired from a 12-24 distance of slumped inches. The victim was found over in the front seat of his parked apartment vehicle which was near the mailboxes of the August 17, Aрpellant The victim was killed on 2002. was arrested in 2006 and the County grand jury during DeKalb returned a true bill of indictment its March 2006 term (armed murder, charging appellant felony robbery), felony with malice murder murder (aggravated assault), assault, robbery, aggravated possession during armed of a firearm 8-11, 2007, Appellant’s place January commission of crime a convicted felon. trial took during acquittal possession charge. which the trial court directed a verdict on the firearm On 11, January jury guilty remaining charges returned verdiсts on the and the trial court imposed imprisonment robbery two consecutive sentences of life for malice murder and armed determining felony by operation after that the two murder convictions were vacated of law and aggravated merged Appellant timely assault conviction into the malice murder conviction. 9, 2007, February filed a motion for new trial on and an amended motion on A November 9. hearing 15, 2007, on the amended motion was held on November and the motion was denied January Appellant’s timely 7, 2008, appeal February on 2008. notice of was filed and the appeal May argument September was docketed in this Court on Oral 2008. was heard on 22, 2008.