*1 Only Exxon actually appellant’s representation. heard false acted upon misrepresentation agreeing accept payment for its gasoline upon at a later date. heard and Exxon’s Appelleе acted evidence, direction. this in appellee subroga- Under fact have tion claim against appellant based its of Exxon. indemnification appears It theory this subrogation was submitted recovery. not, basis appellee’s Appellee alternative for does how- ever, have a viable fraud against appellant claim under evidence. Insofar as punitive jury’s it included an award of damages, the erroneously theory rеcovery. Accordingly, denial of appellant’s motion for a directed verdict was error and was not harmless. The trial court committed reversible error allowing recovery appellee’s under fraud theory submitted jury.
2. rеmaining enumerations of error are virtue moot of our holding in 1.
Judgment Benham, J., reversed. concur. 15, June
Rehearing denied Moran,
Thomas E. Poe,
James Mixon, M. Debra L. (two cases). 73765. MIDURA v. THE STATE
Benham, (Ed) Henry Julie and Midura pos- were convicted of session marijuana intent portion distribute. possession bifurcated Ed Midura was cоnvicted of the firearms appeal, appellants convicted felon. On issue take evidence, sufficiency suppress, denial motion and the effectiveness of trial counsel. The State evidence pounds 2~1/2 mаrijuana were seized of appellants’ search home. An as
sortment drug paraphernalia triple and a beam were scale found. The officers seized weapons, several a Kurz .380 pistol semi-automatic and several Smith and Wesson semi-automatic pistols. The presence home, appellants’ coupled quantity with the presence of marijuana and the of scales used to weigh drugs, was sufficient possession evidence of an intent McDade v. distribute. See 672) was not contention possessing felon a convicted firearms while
sufficient convict weapons is without not tendered into because Clayton State, merit. assessing punish that the evidence submitted contends He also ment as a recidivist (a)) (see light § is insufficient OCGA 17-10-7 *2 Clayton County. from convictions use of “uncounselled” the State’s Inasmuch transcript provide upon appellant a as was incumbent it (349 717) (11) (Chancey proceeding Ga. v. 256 415 (1986)) filed, must assume and none imposed supported hearing sentencing the sentence at the by 674) (1983). State, 166 v. Ga. 900 the trial court. See Wallace appellants denied effective assistance maintain 3. Both appellants represented on are of trial. counsel at Because filed, counsel, new trial was and no motion for other than trial a trial and case to the “we remand the findings counsel. of ineffective assistance оf 5) the issue (1986).” 255 654 Smith State, Ga. (5) Appellate by expressly adopting arguments counsel, appel- allegedly counsel, asserts error the denial suppress during resi- a search of their lants’ motion to dence maintain that the evidence seized Appellants and to search vehicles executed scope warrant was overbroad of the search reliability probable in that the issued cause the warrant was of the informant was stale. without given by demonstrated, and information the informant February 19, 1985, in- The officer affiant (Devier hearsay declarant” formation received a “noninformant 729) (5) (1981)), who was identified participation her in the affidavit and who had admitted criminal large activity concerning acquisition distribution of and quantities The related the de- and cocaine. officer purchase of two bales of him she had witnessed clarant told (procured from the basement of Ed Midura residenсe) purchases three additional December and large “pounds marijuana Decem- volume cocaine” January Ed 1984 declarant stated ber Midura was the information coincided with
supplier drug dealers, of other which for number intelligence”
“known on dealers. The declarant, the Midura residence as described affiant found violations been twice convicted also found Ed Midura to have and arrested on supplied drug charges A GBI five othеr times. indicating appellant Ed Midura had been the affiant with information buying drugs past years selling “in the over the business of “ simply issuing magistrate practi- is make a ‘The task of the given cal, whether, common-sense all the set decision circumstances “veracity” him, forth in the affidavit before “basis hearsay knowledge” persons supplying information, there is a probability fair or will be found that contraband crime particular place. duty reviewing simply in a is And the magistratе ensure ing” . . . had a “substantial basis for conclud- ” probable State that SE2d existed.’ cause named, Inasmuch as the declarant was was a against penal interest, declarant and her statements were based personal mаgistrate observation, basis for had substantial cred- iting hearsay. Lewis v. (1985); (316 supra; Devier Peacock v. argue stale, the declarant’s information
noting the warrant was issued one after the de- month appellants’ purported activity. clarant’s observation of “Time However, the criminal assuredly concept is an element of the cause. *3 precise Rather,
the of an date occurrence is not essential. inquiry is as to the the whether factual statements within arе sufficient to create a reasonable belief that the conditions de- yet prevail might scribed the affidavit at the time of issuance of the search warrant. When the affidavit indicates the existence of an passage signifi- scheme to sell the time becomes less single, [Cit.]” cant than would be the with case isolated transaction. supra failing State v. at 347. The trial court did not err to find the declarant’s information stale.
Appellants base their сontention the that search warrant was duplex overbroad on assertion that their residence is a and the police only. apartment cause to search the basement appear- However, Linda Midura аdmitted outward single-occupancy ance structure, of the home was that apartment, portion she and her husband had access to the basement Bing jewelry workshop. which was used as a See (1) (342 complain 178 Ga. also particu- vehicles, of the search of two one of which was with identified larity application, premises in the search warrant that were on the when the officers “A executed warrant. warrant which au- dwelling implicatiоn thorizes the search of a extends curtilage dwelling.” areas within the of the Landers v. parked curtilage 808, 809 Vehicles within the dwelling pursuant to be searched to a warrant Bellamy Id.; searched App. 340 error, he con- enumeration of final
5. In concerning post-arrest testimony he had conversations tends that police has not have admitted. with officersshould support authority position enumer- and has failed cited transcript. “specific . . .” record or reference to the ated error (3) (i). (c) Appeals Therefore, not consider we will Rule 15 Court of appellant’s argument. Watson Judgments concurs. and cases remanded. affirmed Carley, specially. J., concurs specially. Judge, concurring majority opinion. completely I write dis- I concur fully “for a the remand of cuss more findings assistance of counsel” the issue of ineffective agree, majority opinion. I set forth in 3 of the 5) (1986) Smith v. State, 639) (1986) mandate the remand of Ga. 148 procedural posture However, Smith here. a case in the we find affirming regard effect of silent to the actual Hambrick are hearing. judgment remanding Nevertheless, I for further and still Supreme Court faсt think that, ascertain the intent of the we can Smith, back case came first decision in appear- appeal. Supreme direct Court on another case, the trial stated: “We remanded to court ance of the Court assistance of [the issue of denial of ineffective for determination of hearing, findings fact, made The trial held counsel]. holding had not been denied effective entered an order record, of counsel. We hаve reviewed the and because clearly findings erroneous, are not to be shown 641) (1986). Thus, I affirm.” Smith affirming it is clear the effect of an court’s believe that remanding accordance the mandates of appellate *4 Hambrick is to end the case as far as the court is appeal until and a notice of is filed defendant concerned unless required holding ruling after adverse entry required findings concerning trial court find effective assistance of counsel. Of should the requiring grant new proceed. purposes, new trial would Therefore for all standpoint completed review reappear except new will virtue of a notice here by court. some future order entered Billy Spruell, L. Attorney, III, II, As- Banks T. Russell McClelland District Rafe Attorney,
sistant District THE 73779. CRENSHAW v. STATE.
Appellant appeals from the of conviction and sentence finding guilty trafficking entered on a in cocaine. Agent Drug Paul Markonni of the Federal Enforcement (DEA) Agency observing passengers deplane at Hartsfield Inter- Airport flight national after a from Miami. Markonni noticed that a deplaning passenger, appellant’s certain Samuel, co-defendant exhib- Agent itеd characteristics common to couriers. As Markonni was watching making appellant deplaned. Samuel, he also noticed that After eye-contact appellant began following Samuel, Samuel at they away gate, and, distance of 30 to 40 feet as walked from the they pellant. periodically ap- maintained this distance. Samuel looked back at appellant stopped, They proceeded When Samuel waited. gate, they spoke briefly. this fashion to another where Samuel then appellant returning followed gate to and from the rest room. After appellant against area, Samuel took a seat while stood a wall awаy. opinion Agent several feet It was that, Markonni at all appellant endeavoring impression give times, Samuel and they traveling together. were not approached spoke subsequently Markonni to Samuel and ar- Aрpellant question rested him. does not the existence of cause for Samuel’s arrest. In arrest, to Samuel’s bags containing appeared prove Markonni found two what and did grams discovering be of cocaine. After Samuel, the cocaine on approached speak appellant. Appellant Markonni and asked to voluntarily produced itinerary ticket, which showed the same baggage Samuel’s. The ticket had no clаim checks attached to it and paid had been for in cash. consented to be searched and voluntarily accompanied Agent Markonni to the room where Samuel being held. room, As entered the “I Samuel stated Although don’t know him.” the search of revealed no he was detained while the reservation records. The records revealed that obtained his and Samuel’s airline had identical res- They neighboring legs trip. ervations. had booked seats on all of their telephone given virtually As numbers, home each had the identical