Smyrna RaceTrac and Urban Redevelopment Plan Public Hearings set for Monday

It’s Monday morning and local, county and state government meetings are abound during the early portion of the week.

A public hearing to discuss a proposed Urban Redevelopment Plan will be a part of Monday’s Smyrna Mayor and City Council meeting.

City officials hope the adoption of the Urban Redevelopment Plan, which will make it possible to establish an Opportunity Zone, will help facilitate job creation and redevelopment. You can read more about it here in our story from last week.

Also at tonight’s meeting, there will be a public hearing concerning RaceTrac’s plan to build a nearly 6,000-square-foot station near the intersection of Spring Road and Bell Drive. The store will feature two canopies with six pump islands under one canopy and three pump islands under the other.

Last week, Smyrna’s Planning and Zoning board approved rezoning measures by a 5-1 vote that would allow RaceTrac’s flagship convenience store to be built. You can read more about that meeting here.

And on tonight’s consent agenda will be the approval for the newly formed South Cobb Drive Coalition to meet in the Smyrna City Council’s chambers on Tuesday from 7 p.m. to 9 p.m. This will be the first organized meeting of South Cobb Drive residents and businesses to discuss ways of improving the area for the future.

Tonight’s meeting begins at 7:30 and the public is invited to attend. Charter Communications Public Access Channel 19 carries each meeting live and usually the replay will air the following Monday at 7 p.m. See the TV23 section at www.cobbcounty.org for a complete rebroadcast schedule.

On Tuesday, the Cobb Board of Commissioners will hold a public hearing to hear views on raising the property taxes on at 8 a.m. and 6 p.m. The public is invited to attend that meeting at the commission meeting room, 100 Cherokee St., downtown Marietta. 

Also on Monday, the Supreme Court of Georgia will hold oral arguments in Marietta Monday in the new Cobb County Superior Courthouse.

At the 10 a.m. session, the Court will hear two appeals: one involving a lawsuit filed against a Gwinnett County psychiatrist who discontinued a man’s anti-psychotic medication shortly before he killed his mother, and the second involving the murder of a popular liquor store owner in DeKalb County.

Each year, the Court travels outside Atlanta to hear cases for the purpose of making the court’s business and the judicial process more accessible to the public.

Next week’s session will be held in the ceremonial courtroom of the recently opened seven-story Cobb courthouse, which was funded through a voter-approved special local option sales tax.

In April, the courthouse earned the LEED gold certification from the U.S. Green Building Council. LEED stands for “Leadership
in Energy and Environmental Design” and sets the criteria for defining “green” buildings. The new courthouse is the largest LEED Gold certified building in the Southeast.

Below is a summary of the cases to be heard.

10:00 A.M. Session

O’BRIEN V. BRUSCATO
A psychiatrist is appealing a decision by the Georgia Court of Appeals, which ruled that a jury should decide whether he committed medical malpractice by discontinuing a man’s anti-psychotic medication. Soon after the medication stopped, the man brutally killed his mother.

FACTS: In 2001, Victor Bruscato, then 38, was assigned to Dr. Derek Johnson O’Brien’s outpatient psychiatric care at a community health center in Gwinnett County. Victor was a mentally ill patient with a history of violence. His mental illness had manifested itself in childhood and over the years, he had been diagnosed with schizophrenia, pedophilia, schizoid affective disorder, psychosis “not otherwise specified,” intermittent explosive disorder and mild mental retardation. Victor never completed elementary school and had spent most of his life in and out of mental institutions.

Since 1980, he’d been a patient at the Gwinnett-Rockdale-Newton Community Service Board and for a while had lived in one of its group homes until 1999, when he had to be removed due to the risk that he might sexually assault a girl. When he came under the care of Dr. O’Brien, he’d been living with his parents in Norcross for two years.

According to expert witnesses, Victor’s violent behavior and sexual impulses had been successfully managed by anti-psychotic drugs, including Zyprexa. In May 2002, O’Brien ordered that two of
Victor’s medications – the Zyprexa and Luvox – be discontinued for six weeks to rule out the possibility that Victor could be developing neuroleptic malignancy syndrome.

Less than three weeks later, Victor began having nightmares, panic attacks and heavy sweating. He began hearing voices, telling him to kill and “do awful things.” On Aug. 11, he left a “prayer note” at a church prayer meeting, telling the group that the devil was tormenting
him “big time.”

A friend of the family observed him on Aug. 14 rocking back and forth on his bed pleading, “make the voices stop.” On the morning of Aug. 15, 2002, Victor and his mother, Lillian Lynn Bruscato, were
alone in their home when Victor smashed her head with a battery charger and stabbed her 72 times. He hid in the woods but was soon captured. He told the arresting officer he had killed his
mother and knew it was wrong, but the devil had told him to do it.

While in jail, he asked “what member of his family would become his new mother,” according to the assistant director of prison mental health services, and he wondered whether his mother could be “brought back to life.” After reintroducing Zyprexa into his medication regimen, the assistant director noted that Victor became “compliant” and that his condition “improved steadily.”

Although he was indicted for his mother’s murder in 2002, he was found to be incompetent to stand trial. He was committed to Central State Hospital in Milledgeville, where he remains. His father, Vito J. Bruscato, sued O’Brien for medical malpractice, claiming that
O’Brien’s negligence in discontinuing his son’s medication had caused him to become psychotic and kill his mother. The trial ruled in O’Brien’s favor, granting him “summary judgment.”

A court grants summary judgment when it determines there is no need for a trial because there is no genuine debate over the facts and the person requesting the judgment is entitled to it based on
the law. But on appeal, the Court of Appeals reversed the decision. It found that since Victor’s mental competence at the time he killed his mother was in dispute, it was error for the trial court
to grant summary judgment and rather the case should go to trial.

O’Brien now appeals to the state Supreme Court.

ARGUMENTS: The psychiatrist’s attorneys argue that the claim against O’Brien should be barred by the wrongful conduct rule. “The public policy in this state, expressed in case law dating back 150 years, is clear that a person may not profit from his wrongful or illegal conduct,”
they argue in briefs. “This ‘wrongful conduct rule,’ adhered to by the majority of jurisdictions in the country, focuses on the conduct, not the plaintiff’s state of mind.

The Court of Appeals erred by ruling that Bruscato may pursue monetary recovery from his psychiatrist for alleged emotional financial injuries arising out of the killing of his mother.” Bruscato cannot “shift the blame” for killing his mother to his psychiatrist and recover damages in a civil suit.

Georgia courts have repeatedly affirmed the public policy “that a plaintiff may not seek monetary recovery for a cause of action arising out of the commission of an illegal or wrong act, where the
plaintiff depends on the wrongful act to establish his case.” Furthermore, the Georgia legislature has passed several laws that adopt this public policy, prohibiting a person who kills from collecting on his victim’s life insurance policy, for instance.

The Court of Appeals was wrong to conclude that “Bruscato is not a ‘wrongdoer’ whose status as such would be a bar to any of his
claims.” “Victor was aware of his own wrongdoing,” O’Brien’s attorneys argue. He confessed and said he knew what he’d done was wrong. A wrongdoer may not bring a claim arising out of his wrongful acts. And the fact that Bruscato has not been convicted does not mean the wrongful conduct rule does not apply. Bruscato’s attorneys argue the Court of Appeals was right to reverse the trial court.

It was error for the trial court to grant summary judgment to the psychiatrist on public policy grounds in the face of expert opinion that Bruscato was psychotic when he killed his mother. And that
psychosis was the direct result of O’Brien’s negligent withdrawal of his anti-psychotic medication. The question for the jury is whether or not O’Brien violated the standard of care, causing Bruscato to become psychotic and kill his mother, thereby entitling him to recover
damages from O’Brien. Georgia’s existing public policy permits the Bruscato claim, the attorneys argue. Georgia public policy also favors the presumption of innocence. Victor has not
been convicted of any crime or found responsible for his actions in any civil case. Had it not been for O’Brien’s negligence, the attack never would have occurred. Georgia law provides that a medical doctor is liable to his patient for negligence.

Attorneys for Appellant (O’Brien): Milton Satcher, III, Laura Marshall
Attorneys for Appellee (Bruscato): William Quinn, III, Jerry McCumber

BATTLES V. THE STATE
A man is appealing his murder conviction and life prison sentence for the shooting death of a popular liquor store owner in DeKalb County.
FACTS: Since 1991, Shamshamer “Rocky” Tucker and his wife, Rupinder “Ruby” Tucker, owned “Rocky’s Package Store” on Briarcliff Road near Emory University.

The Tuckers, natives of India, worked together every day and rode home together each night. Every Saturday, after closing the store at midnight, they brought home the week’s proceeds. On July 1,
2006, they followed their routine and after closing, carried the week’s cash with them in their black Mercedes to their home on Deer Lake Trail in Stone Mountain.

Near their house, Mrs.Tucker noticed a truck by the side of the road that she’d never seen before. As the Tuckers pulled into the driveway early Sunday morning, July 2, the truck pulled in behind them, blocking them.

Two men got out, pulled the Tuckers from their car and armed with guns, demanded money and “gold.” When one of the men lowered Mrs. Tucker’s blouse with his gun, Rocky Tucker went back into his car and grabbed a loaded gun he kept in the center console.

One of the robbers kicked Mrs. Tucker who fell to the ground, and gunfire broke out. Rocky Tucker was hit multiple times, but he fired back, hitting one of the men in the left leg. The men fled to their
truck, firing as they left. They got no money. Initially, police had no leads.

On Sunday night, Dr. Cindy Gartmond, a pediatrician, received a phone call from the mother of Rodney Ennis Battles, 22, saying her son had a gunshot wound in his leg. The two women were friends. On Monday, July 3, Gartmond saw Battles in her office. He told her he’d
accidentally discharged the gun while sitting in his car. As a mandatory reporter, Gartmond reported the gunshot wound to authorities. She later testified Battles had shot himself the Friday before Rocky Tucker’s murder.

Police had been canvassing area hospitals to see if anyone with a
gunshot wound showed up, and after receiving Gartmond’s report, they added Battles’ photo to the lineup.

About a week after the shooting, they showed the photo lineup to Mrs. Tucker, who immediately picked out Battles as the one who had kicked her and shot her husband. Police obtained a warrant and arrested Battles, who first told police he was shot during a robbery.

He later said he’d accidentally shot himself with his .380 caliber handgun on his way to Kroger. Battles’ first trial ended in a mistrial after the jury could not reach a verdict. At a second
trial in November 2007, he was convicted of malice murder, felony murder and aggravated assault and sentenced to life in prison. The trial court denied his motion for new trial and Battles now appeals to the state Supreme Court.

ARGUMENTS: Battles’ attorney argues four mistakes were made during his trial and his convictions should be reversed. First, Battles received “ineffective assistance of counsel”
from his trial attorneys, who failed to realize that Gartmond’s prior misdemeanor guilty plea under the First Offender’s Act was not a “conviction” that could be used to challenge her credibility as a witness. Under the U.S. Supreme Court’s 1984 decision in Strickland v.
Washington, a criminal defendant claiming he was denied effective counsel must make a two-pronged showing that his attorney’s performance was deficient and as a result, prejudiced his
case.

“Dr. Gartmond was one of the most critical witnesses in the case…,” Battles’ attorney argues. She testified that the bleeding had stopped and “granulation tissue” had formed by the time she treated Battles’ wound. If he’d been shot Sunday morning during the Tuckers’ attack, there wouldn’t have been time for the granulation tissue to form by the time she saw him Monday.

The trial attorneys also provided ineffective assistance by failing to object to the instruction given to the jury regarding polygraph evidence. Battles’ “no” answers to questions asking him if he’d shot Rocky Tucker or was present when Tucker was shot suggested he was
being deceptive.

But the instruction to the jury failed to point out that polygraph evidence is unscientific and unreliable, and that the examiner’s interpretations are circumstantial, not direct, evidence. The trial court also erred in denying Battles’ request to have his own experts test and analyze the shirt and denim shorts Battles was wearing when he was shot.

Finally the trial court abused its discretion in allowing in evidence that Battles had a “green, leafy substance” on him when he was arrested, which only served to impugn his character while adding nothing to the
State’s case.

The State argues that Gartmond’s First Offender plea was admissible. Her medical license had recently been suspended after she pleaded guilty to 10 misdemeanor counts of Medicaid fraud for falsely billing for services she never provided.

Because her past acts showed a history of lying about providing medical services, the State argues, her plea was admissible to
question whether Gartmond had actually treated Battles at all. On many fronts, the pediatrician’s testimony was “patently unbelievable and biased,” the State contends.

She was a close friend of the family’s, she did not advise someone who’d been shot to go immediately to the hospital, she
hadn’t seen a gunshot wound in 17 years, and she did not report the wound to authorities when he first learned of it, as the law required her to do. In Georgia, the State points out, polygraph
evidence is considered opinion evidence that can be completely ignored by the jury.

“Thus, Georgia’s instruction actually gives a jury more leeway to completely ignore polygraph evidence than the strict ‘circumstantial evidence’ construction now urged by Battles,” the State argues.
The State also contends that Battles’ request to have his own experts examine evidence following his conviction is merely an attempt to see if the trial attorney would have had better results at trial if he’d taken a different approach.

The trial court correctly ruled that Battles ought the independent testing to raise a post-conviction claim of ineffective assistance of
counsel that did not currently exist. Battles’ trial attorneys chose to use what “expert” funds were available on proving his defense that he’d accidentally shot himself, as opposed to countering the
prosecution’s claims. Finally, the trial court granted Battles’ motion asking that the State be prohibited from identifying the “leafy, green substance” as “marijuana,” so no harm was done.

Attorney for Appellant (Battles): Brian Steel
Attorneys for Appellee (State): Robert James, District Attorney, Lenora

- Patch Editor Holly Roberson contributed to this story.