*1 appellee. Gray, Currie, Gold, S. & David Gilliland O’BRIEN v. DUNAGAN. A93A1478. (432 642) Presiding Judge.

McMurray, filed this tort action Lester Studdard Plaintiff O’Brien Subseqently, Dunagan, as execu- the administrator of his estate. and party Studdard was substituted as the trix of the estate of Lester entry judgment appeals following in his Plaintiff of a fendant. principal $5,000 in amount of based the verdict of a favor jury. Held: July appeals damages 1,1991,

After all actions for application proce judgment $10,000 less must be taken or (6). (a) § § dure set forth OCGA 5-6-35. See OCGA 5-6-35 direct This with the discre appeal comply must be dismissed for failure tionary application procedure. Crum, Heuer Indus. v. Co., Jarrett v. Ford Motor 675 Ga. See also Credit

Appeal Blackburn, JJ., concur. dismissed. Johnson 1993.

Decided June appellant. Liss, Liss, & I. Jett Joel Cooper Gary appellee. Associates, & M.

A93A0082.PITTS v. THE STATE. Presiding Judge. McMurray, appeals Defendant Pitts his conviction of two of armed counts robbery by taking. and one count of theft Held: sufficiency 1. The first enumeration error light evidence to authorize defendant’s conviction. in the Viewed upholding jury’s verdict, most favorable to lished the evidence estab- accomplice jewelry that defendant and an entered a store Marys posed accomplice pulled Saint gun as customers before the manager manager and ordered the to the back of the The store. was handcuffed and forced to lie on the floor. Meanwhile defendant telling accomplice “put gloves.” When a customer gun, handcuffed, store, walked into the he was also threatened with a placed Along jewelry store, with merchandise from the the floor. jewelry manager’s personal taken, store well and car keys car was taken from the customer. customer’s also as the de- departed accomplice and his the scene. fendant presented defense, it is alibi the task of weigh credibility, jury evidence, determine and resolve con- *2 testimony. reweigh evidence, in the This flicts only Court does not but legally determines it is sufficient. The evidence was suf- guilty beyond ficient for rational trier of fact find a defendant a of reasonable doubt v. State, the offenses of which he was convicted. Jackson (99 Virginia, 560); 2781, U. 443 S. 307 SC LE2d 61 Widner v. (5) (418 105). App. 823, 203 Ga. 825 SE2d 2. The second of error enumeration contends that defendant did not receive effective assistance of counsel at trial. “To establish inef counsel, [a of defendant] fective assistance sel’s must show that his coun performance performance was deficient and that the deficient prejudiced Washington, 668, v. defense. Strickland 466 U. S. 687 (104 674) (1984); 2052, Francis, SC v. 782, 80 LE2d Smith 253 Ga. (325 362), (106 denied, 784 260, SE2d cert. 474 U. 925 S. SC 88 LE2d 266) (1985).” (1) 284). State, 232, Gross 262 Ga. 233 SE2d

Following sentencing, attorney the trial and defendant’s trial a filed motion new for trial. The contention that defendant had not received effective assistance from trial counsel was amendment to the motion for new trial filed raised an

by appellate defendant’s appellate request evidentiary However, counsel. counsel did not an hearing required on State, this issue as under Dawson v. 258 Ga. 897). 381 Usually request hearing such a failure to a on the ineffectiveness right hearing. issue sub quest results the waiver of However, to a the case judice regardless is unusual in that of defendant’s failure to re evidentiary hearing an ineffective assistance of counsel including testimony issue, issue, evidence on this counsel, of trial hearing was received at the on defendant’s motion for new trial and by denying considered the trial court. The trial court’s order defend rejection ant’s new motion for trial states alternative theories for the of Citing defendant’s claim of ineffective assistance counsel. Daw (2), supra State, progeny, son v. 381 and its the trial by court held that defendant has waived the claim of ineffectiveness appellate request hearing counsel’s failure to a How on that claim. authorizing ever, we not do view Dawson where, such a conclusion judice, evidentiary hearing despite as in the case sub an has been held any request absence for such on behalf of In our defendant. only preservation right view, Dawson addressed defendant’s evidentiary hearing prohibit not intended to a trial court exercising from its discretion to receive evidence on this issue even

49 request. proper its dis- court exercises Once trial absence a issue, ab- on the ineffectiveness evidence so to receive cretion hearing by request is such immaterial. a sence having court, its dis- Therefore, exercised we that the trial conclude rely issue, not could on the ineffectiveness to receive evidence cretion denying trial. motion for new defendant’s Dawson as a basis having evidence and ruled view, considered the trial court Under this ripe appellate claim, review. it on the ineffectiveness permit sufficient to the trial court was evidence submitted to deficient fact determine that trial counsel trier of a made errors so guaranteed functioning as the “counsel” not serious he was App. App. State, Ga. 193 Amendment. White the Sixth 921). also McAlister See 430 (1), Brown v. 259, 261 measuring trial In rendered assistance every distorting effects must made to eliminate the effort be counsel per pre hindsight from counsel’s evaluate trial counsel’s conduct of spective sumption strong Also, entitled to a

at the time. trial counsel is range within wide reasonable that his conduct falls professional Baines v. conduct. However, counsel has a to make reasonable *3 SE2d trial (2) (414 211). investigations. State, v. Cochran 262 Ga. 107 SE2d investigation possible of of de The fense is trial counsel trial counsel’s to an the avenues conduct

tempered by practical expect to restraints. It is not realistic investigate plausible Instead, the all lines of defense. experience is to be utilized determin ing greater v. which lines of defense receive the effort. Southerton 251); App. 366, State, State, v. 205 Ga. 367 SE2d Baines 201 Ga. (1c), App. supra. 354, 356 appears

Nonetheless, it that defendant’s trial counsel failed to inquiries make minimal have that of of which would revealed the arrest predicated showing any defendant was warrants issued without probable magistrate. issuing before the de cause warrants for apparently solely fendant’s were issued on the the at arrest basis of requirements although satisfying which, tached affidavits of the magistrate supply § 17-4-41, infor OCGA did not the with sufficient independent judgment support probable mation to ex an that cause State, the Ga. isted for issuance of the warrants. Devier v. 253 See 150). 604, 609 610 SE2d Following gave inculpatory arrest, defendant an statement police illegality If the which was admitted at trial. trial had counsel discovered prevented defendant, in-

of of he the the arrest could have inculpatory Har- of v. troduction into evidence the statement. State (2) 483); Ryals State, ris, 457, Ga. 26 186 fact, In testified that he 458 trial counsel possibility might the arrest not the warrant either did think of away possibility illegally have been issued or assumed based on experience law enforcement officer involved. He of the also testi- representing whether, fied that he could not recall at the time he was statutory defendant, he was aware that there was a difference requirements process requirements due issuance of ar- rest warrant. expressly did not trial court address the issue of performance deficient, trial counsel’s we have reached

the conclusion that it was. This conclusion was reached after consid- uncomplicated ering against defendant, nature of the case the ob- importance case, vious of defendant’s confession to the State’s the small illegality time amount of and effort which could have revealed the arrest warrant. predicated

The trial court also its denial defendant’s motion any deficiency part for new trial on a conclusion that of trial prejudice applicable counsel did not defendant. The test is whether probability jury is there a reasonable would have reached a differ- verdict, ent absent the error counsel. Gross (1), supra. reaching In the conclusion that defendant was not prejudiced, weight the trial court relies of the evidence against inculpatory Bradley defendant other than his statement. See 331); Brown v. App. 867, point clearly view,

In our the trial court’s conclusion on this Apart confession, erroneous. from his the State’s evidence testimony accomplice fendant consisted of the of an admitted testifying grant immunity crime under a and the identifications manager jury might the store and customer. This is evidence which a credibility accomplice discount due to concerns as to the or the brief and stressful circumstances with associated the identification testimony. presented testimony hand, On the other working Jacksonville, Florida, several witnesses that on a robbery. car, at the time It seems clear to us that under these *4 very circumstances, defendant’s confession could well have influenced jury. the verdict returned denying

Therefore, we conclude that the trial court erred in remaining fendant’s motion for new trial. Defendant’s enumerations they lacking of error need not be merit, addressed as are in either holding upon unlikely 2, rendered moot our in Division or recur retrial the case. Judgment Beasley, J., J., reversed. concurs. concurs P. specially. Judge, concurring specially. Presiding

Beasley, upon magistrate agree deter I the information probable a crime had cause to believe that been mined that there was committed it was insufficient. and that defendant had committed police source of the affiant officer’s was no information There merely swore what had oc these two factors. He as to acts; how he failed to reveal curred and who had committed necessary magistrate can make an inde it. The latter is so the knew pendent judgment whether the source of the information is reli as to 150) (1984); 604, Co able. Devier 530) (1981). An officer’s field experience police long-time force is not a substitute for an inde on a pendent judicial examination source. probable cause, if the arrest was without

We conclude that de inculpatory fendant’s statement have been would inadmissible. This always applied Dunaway because, York, is not so v. New 824) (1979), separate ques U. S. SC 60 LE2d it is a police [the] tion “whether the connection between unconstitutional incriminating during [the] conduct and the illegal statements . . . obtained sufficiently permit detention was nevertheless attenuated to present the use at trial of the statement. . . .” The factors this exploitation case establish that defendant’s statement was an of the illegal recognized Ryals Consequently, arrest. 309) (1988), App. 457, 458 even if the statement was voluntary purposes, for Fifth Amendment it is inadmissible due to Fourth Amendment concerns. course,

Of defendant need not reach out to the federal constitu- protection right Georgia tion of the asserted here. The Bill of Rights gives right people assurance that “the of the to be secure persons against their . . . unreasonable seizure shall not be violated.” guarantee, To secure this cept upon probable it demands that “no warrant shall issue ex- supported by particu-

cause oath or affirmation larly describing persons the . . . Const., ... be seized.” 1983 Ga. probable I, I, § Art. Sec. XIII. Par. OCGA 17-4-41 does not address requires specific description crime, cause but to include when, where, whom, answers to the and what. Prob- question, why you able cause answers a threshold do believe this oc- you curred, is, what do base this belief? The answer to this question is what the affidavits for Pitts’ arrest lack. 1993.

Decided June appellant. Stokes, James D. Attorney, Higgins, Thomas, Jr,, Glenn

W. District C. Keith As- *5 Attorney, appellee. sistant District WALKER, DADE &

A93A0146. CATOOSA COUNTIES HOSPITAL AUTHORITY CLARK et al. 647) Judge. patient a visiting Center, at the Hutcheson appel- Medical slipped

lee and fell on ramp a wheelchair the sidewalk outside the hospital. ramp painted was bright yellow sloped and about four parking paved inches a with asphalt. into lot black At the time of fall, appellee’s the sidewalk was wet a Appellee from recent rain. tes- deposition tified her that she moved over on the sidewalk to allow approaching person, room for an and when hit yellow paint she the it glass” “slick and “threw” her. She sought damages against ap- pellant, Center, the Hutcheson Medical of un- maintenance d/b/a premises, alleging safe that she had opportunity no to ascertain that ramp’s surface had been paint. made so slick The trial court appellant’s denied the summary motion for judgment under the authority Whitley Hulon, we granted application its interlocutory review.

Appellant contends it appellee breached no care be- provided cause it notice warning sloping ramp by painting Further, yellow. it although appellee maintained ramp’s sur- slick, face was too she seeing yellow admitted paint and knowing ramp was wet when she it. stepped Appellee presented on no evi- superior dence of part hospital authority of a dangerous condition, or defective hospital and the authority estab- lished that no other falls had reported been in that area and that it any was unaware of dangerous condition where the appellee fell. We conclude that upon Whitley trial court’s reliance misplaced, as it is distinguishable on its facts. The ramp wheelchair plaintiff in Whitley fell park- was the same color as the lot, ing plaintiff alleged prevented that this her from ascertaining degree slope might and that she danger have noticed the slope painted had the been a parking different color from the lot. Moreover, the defendant was aware that previ- another customer had ously fallen at place, the same steps but no prevent were taken to or warn of dangerous condition. The majority in a 5-4 this court decision reversed the trial grant court’s of summary judgment to the defendant, holding plaintiff exercised reasonable “[w]hether lookout and painted should have er- slope, a guardrail posted ected or warning signs are fact which should be resolved a jury. Id. at 364. [Cit.]”