*1 187 liability by joint agree- of an ness venture and cannot avoid partners partners carry ment between business of the one of will out joint independent venture an contractor. See (when partner acting ordinary partner- § course of OCGA 14-8-13 damage ship wrongful partnership acts, business commits is liable for thereby partner committing wrongful same extent as caused (all acts); severally partners jointly § OCGA 14-8-15 are liable for (1) obligations (partner partnership); agent § all partnership OCGA 14-8-9 is of of purpose carrying part- business,
for on unless its authority partnership ner has no to act for the and the It is ishe dealing authority). undisputed with is aware that he has no plaintiff Development Agreement. Thus, was unaware of the DFS rely provision Development Agreement stating cannot on carrying joint that PDC was the business of venture as in- an dependent liability. contractor to itself shield from Contrary plaintiff’s assertions,
3. evidence, to defendants’ viewed light plaintiff in a most favorable to with all reasonable infer- contradictory supports favor, in her ences drawn gations. is her alle- summary judg- 4. For 2, the reasons 1 discussed Divisions and summary partial ment for defendants should have been denied and judgment plaintiff judicata independent on defendants’ res granted. contractor’defenses should been have penalize plaintiff 5. Defendants’ motion to for a frivolous is denied.
Judgment Birdsong, J., Andrews, J., reversed. P. concur.
Decided December appellant. Mrosek,
John W. Mabry, Chambers, Brooks, McClelland, McClelland & Walter B. Cynthia appellees. Becker, J.
A93A1594.PARKER v. THE STATE.
(438 SE2d McMurray, Presiding Judge. possession lysergic Defendant Parker was indicted for acid diethylamide (“LSD”) Following with the intent to distribute. the de- suppress during nial person, his motion to evidence a seized search of his pleaded guilty attempted Parker reserve suppress. the denial of the Held: motion applicable procedure by may which criminal defendant 188
plead is enunci issues for but reserve consideration (1), (410 824). App. 277, State, v. SE2d in Mims ated In Mims this court held cept to ac that “trial courts have the discretion (Harris reject guilty pleas Ga. v. or 324)), 685); App. 307, SE2d v. Echols Germany, part plea bargain. is State when the even *2 851). responsibility Therefore, it is the of accept its whether to exercise discretion the trial court to decide plea appellate preserved. guilty . . issues . that are condition pleas upon right guilty reserving to condition [Defendants have no may only any issues, and reserve the of defendants court, discretion, of its issues when the trial the exercise of such part negotiated plea. Therefore, as a defendant to do so of allows expressly approves trial the reservation of the issue court unless and served. pre accepts plea guilty condition, with is not the issue (1). supplied.) (Emphasis . . .” Id. at 278-279 appears judice, not In case until trial sub after pronounced explained relating sentence and the conditions to court probation any is there mention of a defendant Parker’s sentence suppress.” “a reservation of defendant Parker’s This is confirmed of motion to quoted portion “pleas following transcript: “(Standing Court, Kenneth sentences” before the co-defendant].) Parker, [second [first co-defendant], Andrew MR. attorney]: Honor, [assistant STINES call co-defendants Kenneth Andrew district Your the State would
Parker, [first co-defendant], and and these, THE [second co-defendant]. There’s three of COURT: Parker, [first co-defendant], [second that’s Kenneth Andrew co- correct, defendant]? MR. STINES: That’s Your Honor. MR. [counsel co-defendant]: [Second co-defendant] FOWLER for second here, [second co-defendant]. is Your This is THE COURT: Honor. (Defendants your Okay, you right each one raise hand. NOTE: in.) you Now, sworn you’re charged THE one of understand COURT: each what CO-DEFENDANT]: Yes, [FIRST in this case?
with Yes, [SECOND sir. CO-DEFENDANT]: [DEFENDANT] sir. you’re charged Yes, PARKER: THE COURT: And with violation sir. Controlled Substance Georgia right? Act, [SECOND is that of CO-DEFENDANT]:
Yes, Yes, [FIRST sir. PARKER: MR. sir. CO- you’ve Now, DEFENDANT]: Yes, THE sir. had time to talk COURT: your lawyer you? [FIRST with FENDANT]: Yes, about this each one CO-DE- CO-DE- Yes, [SECOND sir.
sir. MR. PARKER: your lawyer physically FENDANT]: Yes, THE And is sir. COURT: you present [FIRST CO-DEFENDANT]: at this court time? Yes, Yes, Yes, [SECOND CO-DEFENDANT]: sir. sir. MR. PARKER: upon your plea guilty, you THE sir. you COURT: And understand that years? imprisoned [FIRST for as as 30 CO-DE- could be much Yes, Yes, FENDANT]: FENDANT]: [SECOND sir. PARKER: sir. CO-DE- MR. you Yes, THE sir. COURT: Are able to hear and under- my questions? [SECOND CO-DEFENDANT]: stand statements and Yes, [FIRST CO-DEFENDANT]: Yes, Yes, sir. sir. MR. PARKER: you drugs alcohol, THE under sir. COURT: Are now the influence of CO-DEFENDANT]: No, [FIRST [SECOND or medication? sir. CO- No, No, DEFENDANT]: you by your sir. THE sir. MR. PARKER: COURT: Do you right guilty, know that have a to enter a of not be faced present accusers, them, examine witnesses and other evi- your Yes, [FIRST CO-DEFENDANT]: dence behalf? sir. MR. Yes, [SECOND Yes, CO-DEFENDANT]: PARKER: sir. sir. THE you right plead COURT: You understand that have a not every charge against you? [FIRST CO-DEFENDANT]: Yes, filed sir. Yes, [SECOND CO-DEFENDANT]: Yes, MR. PARKER: sir. sir. you you plead guilty, you THE COURT: And if understand that not testify you testify, you choose; have or not to can- required testify you testify, Jury that if not be not take that do not can- you? against [FIRST CO-DEFENDANT]:
as evidence Yes, sir. Yes, [SECOND MR. PARKER: CO-DEFENDANT]: Yes, sir. you you plead guilty, THE sir. COURT: Do if understand that you presumed you *3 would be to be innocent that and before can be prosecution duty your proving guilt convicted, the have will of beyond [FIRST CO-DEFENDANT]: Yes, a reasonable doubt? sir. sir. [SECOND CO-DEFENDANT]: Yes, Yes, MR. sir. PARKER: anyone any promises you Now, THE COURT: has made or threats to you plead guilty? [FIRST CO-DEFENDANT]: No, sir. No, [SECOND No, MR. PARKER: sir. CO-DEFENDANT]: sir. THE Now, COURT: You can now let them enter their at this time. you’re pleading guilty freely voluntarily? [FIRST and CO-DEFEND- CO-DEFEND- ANT]: Yes, Yes, [SECOND sir. MR. PARKER: sir.
ANT]: Yes, Honor, sir. MR. Your STINES: facts would show in day September, agents case this on back the 10th from Moultrie/Colquitt County Drug Squad stop up made a at Zippy persons they Doerun, involved, Mart in found three had They indicating 136 hits of LSD them. on made statements that the happened County, Colquitt intent was to distribute this. This (Defendants Georgia. pleas guilty.) NOTE: enter their MR. Honor, STINES: 93-CR-34, Your as to case number the Defendants Parker, co-defendant], Kenneth [first [second Andrew co-defend- pleas by signing place provided ant], have all their entered along attorneys, on the back of the indictment with their Mr. Fowler May [second co-defendant], [first co-defendant]. Parker, for for Mr. Mullís Mr. for and Mr. Okay. Now, THE COURT: it’s sentence you years going of the Court that each one I’m serve 10 to let you years probation, provided you pay servé thát ten on a fine of they can clause there also, a search $3,000. stop there will be And any any you officer, you or time, law enforcement at and search They you bring any probation in for a search. at time can officer any drugs you’re using you Now, here at time. if to see also test can — they? offender, MR. again, are are first not all of them the two lady’s young Now, THE [sic] COURT: are. No, The two sir. MULLIS: ago you first offender. about that ones awhile me tell the other heard they year period years during only getting if that 10 but You’re you get they bring you you using drugs, into court then catch charge charge; years here. You but on this one on the new this just adjudicate years, anything. prison go
just I trial or no off to your you during period you law, guilty. the with a don’t violate if But charge you’d clear, if never been Court same as record’s you you. CO-DEFENDANT]: against [FIRST that? understand Do Yes, THE CO-DEFENDANT]: sir. [SECOND Yes, I understand. you positive they you say, test But, I if test like COURT: you any drug, marijuana into Court then come back kind of or other years. automatically you go [SECOND CO-DEFEND- for 30 off I CO-DEFENDANT]: understand. [FIRST ANT]: I understand. any you? y’all get it, LSD, did to use THE And didn’t COURT: mean, see, No, I CO-DEFENDANT]:. THE COURT: sir. [SECOND they years ago drug they first when came out that’s an old destroys your just using it, That it started out California. started brain, — you’re you just nothing, you get mean, I don’t know if ever anybody any give just crazy else You don’t the rest of time. anybody enough give you trouble don’t have sense trouble because way around me because I’ve had some with LSD. That’s the works crazy they’re just rest of the time until it and over there that tried happens. they die, course, them’s not around now Of most of is what you, time, it’ll do. You don’t have to it’ll kill is what because at the use it but one or you’re working you. Now, does to two times and that’s what it you’ve got doing good. Also, to reimburse the county your attorney you [FIRST that? CO- fees. Do MR. PARKER: understand Yes, Yes, [SECOND CO-DE- DEFENDANT]: FENDANT]: sir. sir. also, Honor, Yes, talked to MR. MULLIS: Your sir. *4 right contingent reserving Attorney. our District This was the wanting suppress appeal I to we’d had earlier and was to a motion to get going get need to that tran- the also. I am also to that on record you get script. to the tran- I I need to do a motion to don’t know if right. hearing. script THE That’ll be all But now that COURT: forget you’re you’re doing you working, right, to about all and need you, drugs. MR. FOWLER: Thank Your Honor. MR. MULLIS: you, you, . . . Your Honor. MAY: Thank Thank Your Honor. MR. Concluded.)” (Plea (Emphasis supplied.) Sentencing and stating question presented “[t] hat’ll Did the trial court is: right” comply procedural State, all with Mims v. be the mandate of (1), App. “expressly [approve] supra, 277, 279, Ga. the [accept] guilty plea reservation of the issue and the with that condi- responding . . .” or trial if I tion ment was the court to defense counsel’s state- you get “I a don’t know need to do motion to to the tran- script hearing?” presume of that This cannot from the Court record judice, us, before the sub the case trial court has made and expressly “approves set forth critical determination that it accepts guilty plea reservation of the issue and tion.” with that condi- ambiguity Due to the on the face record case sub judice, judgment the trial court’s toas defendant Parker must be va- guilty plea cated, his vacated and the case remanded to trial court plea hearing may clearly for discretion in at which the court trial exercise its App. with v. accordance Mims (1), supra. permit Should trial court defendant Parker to appellate issue,” enter a “with a of an reservation defend- may bring appeal submitting Otherwise, ant an those issues. defend- provided jury sitting ant must be a a trial before a or the court without jury, appeal necessary. any event, followed new if In the trial appropriate proceedings court shall assure an record of the be preserved any appellate review.
Judgment Pope, Birdsong, J., vacated case remanded. C. P. Beasley, Cooper J., Andrews, JJ., Smith, J., Johnson concur. P. Blackburn, JJ., dissent. Presiding Judge, dissenting. Beasley, agree my dissent, brother’s which would hold that the (Division 2)
right appeal preserved to was State that the failed to show there was search Parker’s at the time and in the manner which it was done. Clearly, indicating appeal. was court assent to the Defend- requests, right counsel ant’s had made two one for the transcript. obviously pursuit
the other for a The latter was for the appeal. simply requests: The court assented to both “That’ll be all right.” purpose expense prompting There would be no of tran- script preparation permitted. Moreover, anif it is evi- beyond conjecture parties dent that both understood court’s af- apply appeal. firmative assent to The State no makes issue of it Springsteen whatsoever. inAs 832) (1992), exalting we be form if would over substance we con- approve expressly cluded that the court did not issue. ing the reservation of the Highly procedural requirements, technical adherence to creat- (such procedural rights a narrow window for the exertion of as the alleged deprivation federally protected personal *5 192 justice. case), displays gap
security law and between a in this along Bryant by he, when officer was searched 2. Parker occupants, The officers as directed. the vehicle exited other two the were only physically apparently one Parker was males, and all visually Weldon, women, was of the two least one At searched. searched. by only the inform- named had been one who was the She (last Tracy possibly name others, two and one or ant, said she who quantity unknown), vehicle, a arrive with would of the the owner in the were seat, the two women in the back Parker was LSD. front seat. gave driving car, Tracy and who owned Adair, who was suggests was permission that Parker evidence it. The to search indicating being searched, the car was or while before searched searching locations of the all other him was not that reason for expected been excluded. LSD had pat-down Bryant search of if he conducted was asked Officer having responded person, him, after he searched he
Parker’s him top place believed vehicle, found what he of the his hands weapons. pat-down pocket. pants was no There in his to be LSD purpose Self-protection the search. as the never articulated was particular Wendy targeted not and did Weldon had The informant might suggest LSD. have the someone else police probable question for the cause whether there The is security. personal upon York, v. New Sibron Parker’s to intrude 917) (1968). police (IV) [a 1889, “Before 40, LE2d SC U. S. anything, person places in search of of a citizen officer] a hand on doing adequate, grounds constitutionally reasonable he must have only goal find Sibron, search was to for the at As so.” Id. drugs, believing at cause established there was no person “Such a that LSD was on his was searched the time Parker pro- guarantee Amendment, Fourth which of the search violates the against sanctity person intrusions on the unreasonable of the tects part by person, agents.” government “[A] mere Id. at 65-66. all suspected presence lose] search of car, [does immunities from not States v. United be entitled.” which he would otherwise his (1948). 92 LE2d Neither Re, SC Di 332 U. S. informant, its corroboration nor information received from transpired prediction, nor what the informant’s the occurrence of the event passenger gave probable unfolded, to believe that cooperative male, had vehicle, an unnamed in the back seat of the LSD on person. his Judge, dissenting.
Blackburn, grounds opinion majority that the on the remands this expressly approve Parker’s reservation trial court did not to accept suppress, and did the denial of his motion disagree with that condition. with that conclu- Parker’s appeal, sion, believe that we should consider the merits of this further believe that we should reverse the trial court’s denial of suppress. respectfully reasons, I motion to For those dissent. Parker’s quoted by majority itself, 1. As the record indicates that dur- *6 ing hearing guilty plea, expressly the on the counsel for Parker re- guilty plea. the court of the conditional nature of the minded trial attorney present object The and not to such assistant district did (and plea object appeal), a accepting on in conditional likewise does and plea obviously approved Parker’s the trial court condition. any question plea, acceptance
Had there been over the trial court’s Parker’s conditional it is inconceivable that both the trial court prosecutor silently by and the would have stood as Parker ineffec- tively attempted right to reserve his to the denial of his mo- suppress. “[Considering colloquy tion to the between defense and the objected ap- in court this case and the fact that the State has not peal, adequately defendant reserved the to the denial of (419 suppression. App. State, [Cit.]” his Starks v. 204 Ga. SE2d SE2d 75) (1992); (424 Springsteen App. see also 832) (1992). Nothing in Mims v. (1991) requires literally speak “magic” a trial court out words such approve accept “I the reservation of the issue and majority opinion imposes precisely with that condition.” The that re- quirement upon trial courts.
Although majority may object to the conditional allowed by prosecution agreed Mims, it, in this case and it is clear from approved the record and the trial court’s actions that the trial court accepted plea. might the reservation and the conditional While one question whether or not it is wise to allow the of cases where guilty plea, us, there has been a that is not the issue before and Mims Georgia procedural is the in law at this time. The mandate of Mims by majority was followed in and the remand is unneces- sary inappropriate. hearing suppress, arresting
2. At the on Parker’s motion to p.m. September 10, 1992, officer testified that around 2:30 a relia- gave tip containing ble confidential informant him a that a red Honda p.m. LSD would arrive in Doerun between 4:30 to 5:00 that afternoon stop only Zippy and would at the inMart that town. The Honda occupied by Wendy Weldon, would be one individual named another Tracy, possibly person. individual named one other The officers they apply warrant, did not believe had time for a search in- proceeded up police stead to set a stakeout of the location. Two of- Zippy Mart, ficers waited inside the and two officers remained in an Zippy it to the Mart when the red Honda unmarked car and followed predicted. the informant had arrived as pulled Zippy Mart car into officers the unmarked Tracy
parking Honda. Adair was the exit of the red lot and blocked passengers Wendy driver, Weldon and Parker were get occupants car, out of the All three were ordered Honda. Adair placed search of the vehicle. Parker his hands consented to the by officers, and one of the of the car as instructed on the roof officers searched and then looking removing him, his wallet and first by reaching pocket trousers, where into Parker’s front of his undisputed LSD were discovered. It is that Parker over 130 “hits” of did not consent mere search of his appeal, that his to this search. On Parker contends presence justify red Honda did not this warrantless
person,
agree.
proximity
independently suspected
person’s
A
to others
mere
activity
give
not,
more,
criminal
does
without
rise to
person.
Illinois,
Ybarra v.
automobile, a
does not forfeit his immunities from
enjoys.
he
United States v. Di
searches of his
otherwise
*7
(68
210) (1948).
Re,
Decided December appellant. Mullís,
James M. Attorney, Cole, Stines, H. Lamar Charles M. District Assistant Attorney, appellee. District
A93A1673.WILLIAMS v. GOSS. Judge.
Pope, Chief We granted application discretionary review to consider Superior Henry County, Georgia, properly whether the Court of exer- jurisdiction custody provisions cised Uniform Child in this matter under the
Custody (“UCCJA”), § Jurisdiction Act OCGA 19-9- seq. 40 et dispute. parties
The essential facts are not to this 16, 1989, were divorced on November a decree entered the Su- perior Henry County. Appellant/mother granted custody Court of was parties’ appellee/father granted of the specified two minor children and privileges. visitation From the time of the divorce Novem- present proceedings, ber 1989 until the time of the the minor children resided with their mother Tennessee. July Registration, 15, 1992,
On the mother filed a “Petition for Foreign Enrollment, Enforcement and *8 Di- Modification of Decree of Chancery County, seeking, vorce” in the Tennessee, Court for Sumner modify privileges Appellant alia, inter the visitation of the father. specifically requested petition Henry in her that the court contact the County Superior “relinquishment jurisdiction by Court to confirm July that court in [UCCJA].” 29, 1992, conformance with the On Custody Sup- father filed his “Petition for Modification of Child port,” Henry County, seeking, custody parties’ alia, inter years child, old, oldest who was then and modification of visitation privileges parties’ younger petition with the son. Attached to the stating the affidavit of the older child his desire to reside with his