Connie Vance Krause died by asphyxiation. Police found her nude body in the trunk of her parked car. Connie Krause’s parents, brothers and sister (the Vances) filed a complaint against Connie Krause’s husband, Hans-Juergen Krause, seeking to prevent him from receiving benefits under her life insurance policy and from inheriting her estate. In the complaint, the Vances allege that Krause killed his wife. A jury returned a verdict in favor of the Vances and Krause appeals.
*616 1. In his first enumeration, Krause contends that the trial court erred in allowing an expert witness to answer a hypothetical question which assumed facts not in evidence. The witness testified that in his opinion the average temperature in the car trunk where Connie Krause’s body was found was 40 degrees fahrenheit. In reaching this opinion, the witness was asked to assume that the car, which was found by police in a parking lot on November 3,1989, was also in that lot on November 1 and 2. Krause argues that there was no evidence to support this assumption. The record, however, contains circumstantial evidence from which the jury could have concluded that the car was in the parking lot on November 1 and 2.
“Circumstantial evidence can be described as evidence which does not constitute direct proof with regard to the issue of fact or the hypothesis sought to be proven by the evidence; rather, circumstantial evidence constitutes proof of other facts consistent with the hypothesis claimed.”
Southern R. Co. v. Ga. Kraft Co.,
“[W]here reliance is made upon circumstantial evidence alone for proof of one of the essential facts assumed in the framing of a hypothetical question, the trier of fact may consider the answer to the question only if it has first determined that the assumed fact has been satisfactorily established. The trier of fact, and not the court, decides whether the assumed fact is actually proved by the circumstantial evidence. Nevertheless, it is for the court to decide whether a conclusion assumed is at least supported by the circumstantial evidence before allowing the matter to go to the jury for its determination as to whether the evidence actually established the fact.” (Citations and punctuation omitted.)
Warmack v. Mini-Skools, Ltd..,
2. Krause contends that the court erred in excluding the testimony of Atlanta police detective Lou Moore, attorney Ralph Merck and Internal Revenue Service (IRS) agent Art McGovern. Detective Moore would have testified that agent McGovern said that in his opinion Connie Krause’s death was related to a federal tax fraud investigation. Merck would have testified that agent McGovern told him that the federal government was concerned that Connie Krause’s death was linked to the investigation. Agent McGovern would have testified only as to his name, address and occupation; he would have refused to answer any questions regarding the alleged investigation because such testimony had not been approved by the director of the IRS.
1
The trial court did not abuse its discretion in excluding the testimony of agent McGovern regarding his name, address and occupation as such evidence was not relevant to any issue in the case.
Holden v. State,
3. Krause asserts that the court erroneously refused to admit into evidence a memorandum in which detective Moore wrote that IRS agents “stated it was their opinion that Connie Krause died as a result of a conspiracy involving the Southern Company and Georgia Power.” No IRS agents testified at the trial. The portion of the memorandum that Krause sought to introduce is hearsay. OCGA § 24-3-1 (a). “The reduction of the hearsay statement to writing does not alter its character. Ordinarily hearsay testimony is not only inadmissible but wholly without probative value. . . .” (Citations and punctuation omitted.)
Clabo v. Tennessee Farmers Mut. Ins. Co.,
4. Krause complains that the court erroneously excluded from evidence an affidavit of IRS agent McGovern regarding the alleged federal tax fraud investigation. Agent McGovern did not testify at trial.
*618
“[E]x parte affidavits should not be allowed in evidence in any trial where the evidence is finally adjudicated because it denies the privilege of cross-examination as allowed by OCGA § 24-9-64.” (Citations and punctuation omitted.)
Growth Properties of Fla. v. Wallace,
5. Krause contends that the court erred in refusing to allow him to impeach an expert witness concerning two other lawsuits in which the expert testified. “Oral testimony concerning any such other lawsuits would be incompetent for impeachment purposes unless it contradicted the witness’ testimony at trial and cannot be used merely to expose the witness’ intelligence, memory, accuracy, judgment and veracity. ...” (Citations and punctuation omitted.)
Haley v. Oaks Apts.,
6. Krause contends that the trial court erred in refusing to allow surrebuttal testimony from officer Ruffin Barnes. Krause had introduced testimony from parking lot attendant Teresa Allen that while on duty on November 3,1989, she had not seen Connie Krause’s automobile in the parking lot. In rebuttal, the Vances presented Marcia Warfield who testified that on the morning of November 3 she parked her car in the lot next to Connie Krause’s car. Warfield further testified that when she returned to the lot that evening, Connie Krause’s car was in the same location. Krause sought to introduce surrebuttal testimony by officer Barnes differing with Warfield as to the approximate time that Warfield returned to her car. Because both Barnes and Warfield could merely approximate the time that Warfield returned to her car and because Barnes’ testimony actually corroborated Warfield’s claim that she parked next to Connie Krause’s car, we find that the trial court did not abuse its discretion in refusing to allow the surrebuttal testimony.
Rayburn v. State,
7. Krause contends that the trial court erred in denying his motion for a directed verdict. Krause first argues that the Vances’ counsel, while cross-examining Krause, made an in-court admission that Krause did not kill his wife. The Vances’ attorney explained to the trial judge that he had simply made a sarcastic comment in the midst of a heated cross-examination. The court’s denial of the motion on
*619
this ground amounted to a finding that the attorney had indeed merely made a sarcastic comment rather than an in-court admission. Our review of this finding is limited to a reading of the transcript, while the trial court actually witnessed the demeanor of the attorney and witness involved in the contested verbal exchange. Consequently, this court will not substitute its judgment for that of the trial court in resolving such a question of fact. See generally
State v. Nichols,
Krause further argues that the Vances waived the issue of whether he committed voluntary manslaughter of his wife because it was omitted from the pretrial order. “Omission of an issue from a pretrial order is not controlling if evidence pertaining to the issue is introduced without objection, the opposing party is not unfairly surprised, and the issue is actually litigated. [Cit.]”
Dunkin’ Donuts v. Gebar, Inc.,
Krause also asserts that the court should have granted his motion on the ground of insufficient evidence. Krause did not raise this issue in support of his motion made at the close of the Vances’ case. Krause attempted to raise this issue later in the case when he again moved for a directed verdict. The court, however, refused to rule on that motion because it was premature, having been made prior to the close of all the evidence. See OCGA § 9-11-50;
Anderson v. Universal C. I. T. Credit Corp.,
*620 8. In his sixth enumeration, Krause complains that the trial court erred in allowing an expert witness to testify as to the time of Connie Krause’s death. Krause relies on the same argument he made in support of his first enumeration of error. Because of our decision in Division 1, Krause’s sixth enumeration of error is without merit.
9. Krause argues that the court erred in allowing a medical examiner to give his opinion as to the time of Connie Krause’s death because he assumed facts not in evidence regarding the environmental temperature in which the body was found. The doctor testified that in reaching his estimate as to the time of death he assumed a normal room temperature of approximately 70 degrees fahrenheit. The doctor then explained how that assumption affected his estimate and how his opinion would change by assuming a cooler environment. To the extent the expert’s opinion was based on insufficient facts, the weight and not the admissibility of the testimony was affected.
Buttrum v. State,
10. Krause asserts that the court erred in denying his motion for a mistrial after a police officer indicated that Krause had offered to take a lie detector test. The court’s offer to give a curative instruction to the jury was declined by Krause. “The mere fact that the jury is apprised that a lie detector test was taken is not necessarily prejudicial
if
no inference as to the result is raised. . . . (Emphasis in original.)” (Citations and punctuation omitted.)
Carr v. State,
11. In his ninth enumeration, Krause contends that the court, after hearing testimony by parking lot attendant Teresa Allen, erred in denying his motions for a mistrial and to strike the testimony of three expert witnesses. Krause made these motions in the middle of the trial, at which point the court stated it was unable to rule on them without reviewing the transcripts of evidence. Krause neither renewed the motions nor asked the court for a ruling later in the trial. Consequently, the court never ruled on the motions. Absent a ruling by the trial court, there is nothing for this court to review.
Norwood v. State,
12. Krause’s assertion that the court erred in charging the jury on voluntary manslaughter presents nothing for review because after the charge and upon inquiry by the court, no such objection was made.
*621
Rodriguez v. Davis,
13. Krause’s twelfth enumeration of error is a general objection to the trial court’s refusal to give any of his 22 requested jury charges. Krause claims that his requested charges were correct statements of the law and were warranted by the evidence. In his brief, Krause has made no reference to any location in the trial transcript where the evidence supports any of his requested charges. Instead, he has simply referred to all 22 of his requests, the entire charge as given and his exceptions to the charge. Moreover, although Krause has cited general legal principles in support of his enumeration, he has not applied those principles to any particular requested charge. We have examined the court’s instructions to the jury as well as the charges requested by Krause but not given. We find that taken as a whole the charge given was complete and accurate.
Williams v. State,
14. Krause enumerates as error the court’s failure to give his second, twelfth and thirteenth requests to charge. In his brief, Krause simply repeats the enumerated errors and does not support them with argument, citation of pertinent authority or reference to any evidence in the record supporting the requests to charge. Accordingly, these enumerations are deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2).
15. Krause contends that the court erred in failing to give his fourth, fifth, sixth and seventh requests to charge. Request 4 defines malice, request 5 states that intent to kill is an element of both murder and voluntary manslaughter, request 6 states that motive is not an element of murder and request 7 states that intent and malice are elements of the crime of murder. As these requests were substantially covered in the court’s general charge defining murder and voluntary manslaughter, this enumeration of error is without merit. See
Coastal Equities v. Chatham County Bd.,
16. In his fifteenth enumeration of error, Krause argues that the court erred in failing to charge the jury that before a plaintiff in a civil case can have a verdict in his favor supported solely by circumstantial evidence, such evidence must reasonably establish the theory relied upon and preponderate to that theory rather than to any other reasonable hypothesis. The record, however, does not contain a written request for such a charge. “Where there has been no written request to charge, failure to give the charge is not error.” (Citations and
*622
punctuation omitted.)
Bartel v. State,
*622
Krause further argues that the court erred in failing to give his requested charge that if the evidence presents two theories, one of guilt and one consistent with innocence of the crime of murder, then the law compels the jury to accept the theory which is consistent with innocence. “A requested charge needs to be given only where it embraces a correct and complete principle of law adjusted to the facts and which is not otherwise included in the general instructions given.” (Citations and punctuation omitted.)
Pace v. State,
17. Krause claims that the court erred in failing to charge the jury that “a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.” Krause further claims that the court erred in failing to charge the jury that “an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.” These claims are wholly without merit as the court did in fact give these exact charges to the jury.
18. Krause’s claim that the court erred in refusing to give his seventeenth and twentieth requests to charge regarding in-court statements made by counsel is without merit as those requests were not authorized by the evidence.
Morris v. State Farm Mut. Auto. Ins. Co.,
19. Krause challenges the constitutionality of OCGA §§ 33-25-13 and 53-4-6. This appeal was originally filed in the Supreme Court, which transferred it to this court. The transfer of the case by the Supreme Court to this court is a final determination that no constitutional question was in fact properly raised or, if so raised, that it was not meritorious.
In the Matter of J. S. S.,
Notes
The IRS, pursuant to 26 CFR Ch. 1 and 31 CFR Pt. 1, declined to allow McGovern to testify.