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NIXON v. ROSENTHAL.
A94A1098.
MCMURRAY, Presiding Judge.
Medical malpractice. Chatham State Court. Before Judge Morse.
Plaintiff Nixon filed this medical malpractice action against defendant Rosenthal. Following a verdict and judgment in favor of defendant, plaintiff appeals and raises several issues primarily related to the selection of the trial jury. Held:
A related issue is raised by plaintiff's third enumeration of error which alleges a separate Batson violation by defendant's use of his peremptory strikes to exclude jurors because of their gender. See J. E. B. v. Alabama, ---- U. S. ---- (114 SC 1419, 128 LE2d 89). However, no motion or objection was raised before the trial court in connection with this issue which also must be deemed to have been waived. Ford v. State, 180 Ga. App. 807 (2), 808 (350 SE2d 816).
2. The trial court did not err in excusing for cause as a non-resident, juror Wright, who stated that she was not a resident of Chatham County, and that she was a full-time student and worked in Lowndes County. While some of the trial court's remarks during colloquy with counsel did suggest a factual conclusion that the juror was a Chatham County resident and thus a proper juror for the case sub judice, the trial court also stated that: "Apparently, she feels that she's domiciled in Lowndes County." The plaintiff argues that the trial court has abused its discretion by striking a juror whom it has found to be a Chatham County resident. However, this position removes the trial court's remarks from context. The limited evidence cast into serious doubt whether the juror was a resident of Chatham County, therefore we find no abuse of discretion in the trial court's decision to grant defendant's motion to strike this juror for cause. Garland v. State, 263 Ga. 495 (1), 496 (435 SE2d 431).
3. Plaintiff's motion to supplement the record on appeal pursuant to OCGA 5-6-41 (f) was properly denied by the trial court. The evidence which plaintiff sought to add to the record was not admitted at trial. "Evidence never actually admitted at trial cannot properly become part of the record on appeal pursuant to OCGA 5-6-41 (f). Ray v. Standard Fire Ins. Co. of Ala., 168 Ga. App. 116, 117 (1) (308 SE2d 221) (1983). That section is solely for the purpose of making the record speak the truth, not for adding evidence to the record or supplying fatal deficiencies after the fact. Wigley v. State, 194 Ga. App. 7, 9 (7) (389 SE2d 769) (1989)." Harp v. State, 204 Ga. App. 527 (1) (420 SE2d 6). See also Washburn v. Sardi's Restaurants, 191 Ga. App. 307, 311 (7) (381 SE2d 750).
Don Smart, for appellant.
DECIDED AUGUST 4, 1994 -- RECONSIDERATION DENIED AUGUST 17, 1994 -- CERT. APPLIED FOR.
Thursday May 21 06:52 EDT


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