author: Smith, Judge.

text:
    A93A1888.
    GROOM v. THE STATE.
    (441 SE2d 259)
   Smith, Judge.

The denial of a motion for discharge and acquittal under OCGA § 17-7-170 is the sole issue presented in this appeal. In the February 1992 term of Walton County Superior Court, Jonath Groom was charged by accusation with theft by taking, OCGA § 16-8-2, interference with government property, OCGA § 16-7-24, and criminal trespass, OCGA § 16-7-21. On April 17, 1992, during the February 1992 term, Groom filed a demand for trial pursuant to OCGA § 17-7-170.

There are four terms of the Walton County Superior Court, in February, May, August, and November. OCGA § 15-6-3 (2) (B). Although it is not apparent from the record, the parties agree, and the trial court found, that the May and August terms of court passed without Groom’s case being reached for trial and that juries were impanelled and qualified to try him during those terms. On October 8, 1992, during the August 1992 term, Groom was indicted on the charges of theft by taking and interference with government property. The November 1992 term passed without Groom’s case being reached. On April 28, 1993, during the February 1993 term, Groom filed his motion for discharge and acquittal. The trial court granted Groom’s motion with respect to the accusation of misdemeanor criminal trespass and denied it as to the two felony charges. Groom appeals the denial of his motion and we affirm.

Under Georgia law, a trial court may not try a person charged with a felony until an indictment issues, unless the accused files a waiver of indictment and consent in writing. OCGA § 17-7-70. The waiver and consent is a prerequisite to jurisdiction, and therefore a conviction obtained upon an accusation for a felony offense without such waiver and consent is void for lack of jurisdiction. Roberson v. Balkcom, 212 Ga. 603 (1) (94 SE2d 720) (1956). No such waiver appears in the record, and Groom concedes that he did not file a waiver of indictment in writing. Therefore the trial court could not have tried Groom until the indictments issued.

OCGA § 17-7-170 (a) provides: “[a]ny person against whom a true bill of indictment or an accusation is filed with the clerk for an offense not affecting his life may enter a demand for trial at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter.” While Groom acknowledges that he did not refile a demand for trial after the indictments issued on the felony charges, he contends that the statutory language referring to “a true bill of indictment or an accusation” allows a speedy trial demand to be filed after an accusation but before indictment, even in cases in which an indictment is required in order to confer jurisdiction. We conclude, however, that the language referred to applies to an accusation only in those cases in which no indictment is necessary, either because of the nature of the offense or a defendant’s written waiver of indictment. “ ‘The defendant can not demand trial until there is a case in the court which has jurisdiction to try him.’ ” State v. Hicks, 183 Ga. App. 715, 716 (359 SE2d 712) (1987).

In State v. McKenzie, 184 Ga. App. 191, 192 (361 SE2d 54) (1987), this court held that a demand for trial under OCGA § 17-7-170 was premature when it was made before an accusation was filed on a traffic offense, even though a uniform traffic citation had been issued. Certain traffic offenses by statute “may be prosecuted on the citation without the necessity of returning a formal accusation,” id. at 192, and as to those offenses a demand for trial is not premature when it precedes any formal accusation. State v. Spence, 179 Ga. App. 750 (347 SE2d 612) (1986). However, where formal accusation is required in order to prosecute the offense, the citation alone is insufficient and a demand for speedy trial filed before the accusation is premature. State v. McKenzie, supra, 184 Ga. App. at 192.

Similarly, where an indictment is required in order to prosecute the offense, an accusation alone is insufficient, and a demand for speedy trial filed before indictment is premature. Dalton v. State, 263 Ga. 138 (429 SE2d 89) (1993), cited by Groom, is inapposite. The indictment in that case was preceded by an earlier indictment on which the defendant properly could have been tried, but the defendant was reindicted after a successful motion to quash a death penalty notice. In contrast, Groom could not have been tried on the accusation which preceded his indictment.

Groom’s demand for trial accordingly was premature. “Because the penalty imposed by this statute against the state is so great, it must be strictly construed.” Day v. State, 187 Ga. App. 175, 176 (369 SE2d 796) (1988). The trial court did not err in denying Groom’s motion for discharge and acquittal.

Decided February 3, 1994

Reconsideration denied February 18, 1994

Dickinson, Noel & Peeples, David F. Dickinson, for appellant.

Alan A. Cook, District Attorney, W. Kendall Wynne, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

       OCGA § 17-7-70.1, which would affect this result as to the theft by taking charge, is by its terms applicable only to arrests made on and after July 1, 1992. Ga. L. 1992, pp. 1808, 1810.


source: Caselaw Access Project

author: McMurray, Presiding Judge. Blackburn, Judge,

license: Public Domain

text:
    A93A2258.
    MAXWELL v. CITY OF CHAMBLEE et al.
    (441 SE2d 257)
   McMurray, Presiding Judge.

Donald C. Maxwell filed an action against Bergen-Hudson Construction, Inc. (“Bergen-Hudson”), the City of Chamblee (“the city”) and the city’s mayor and city council, individually and in their official capacities, alleging that the city unlawfully granted variances for nonconforming use of property near his land; that the illegal variances resulted in land use which changed the flow of water over his property and that effusion of water over his land results in flooding, soil erosion and damage to structures on his property. The city and its officials denied the material allegations of the complaint and moved for summary judgment based, in pertinent part, on expiration of the four-year statute of limitation set out in OCGA § 9-3-30 and on lack of ante litem notice to the city as required by OCGA § 36-33-5 (b).

The trial court denied summary judgment based on expiration of the statute of limitation, finding that genuine issues of material fact remain regarding the city’s liability for continuing trespass and that “the statute of limitations bars only those trespasses or nuisances which occurred more than four years prior to the filing of the complaint. Rowe v. Steve Allen & Assoc., Inc., 197 Ga. App. 452[, 453 (398 SE2d 717)].” However, the trial court granted summary judgment to the city because Maxwell failed to provide ante litem notice as required by OCGA § 36-33-5 (b). This direct appeal followed. Held:

1. Maxwell contends the trial court erred in granting the city’s motion for summary judgment, arguing that he provided the city with notice of his claim during city council meetings and that his complaints were recorded in the official minutes of the city council.

“The giving of the ante litem notice in the manner and within the time required by the statute is a condition precedent to the maintenance of a suit on the claim. Schaefer v. Mayor & Council of the City of Athens, 120 Ga. App. 301 (1) (170 SE2d 339) (1969). ‘Formal, written notice is required . . .’ Cobb v. Bd. of Commissioners &c. of Tift County, 151 Ga. App. 472, 473 (260 SE2d 496) (1979). See also City of Calhoun v. Holland, 222 Ga. 817 (152 SE2d 752) (1966).” Gillingwater v. City of Valdosta, 177 Ga. App. 241 (1) (339 SE2d 287). “Oral notices followed by actual appearance before the mayor and council of the city in official session as its governing body, and their assurances of indemnification, will not suffice and cannot create an estoppel because these officials ‘had no right to waive the requirements of Code Ann. § 69-308 [now OCGA § 36-33-5] that written notice must be given a municipal corporation of any claim for the money damages against it, within six months of the happening of the event upon which the claim is predicated.’ City of Calhoun v. Holland, 222 Ga. 817, 819 (152 SE2d 752).” Allen v. City of Macon, 118 Ga. App. 88, 89 (162 SE2d 783).

In the case sub judice, there is evidence that Maxwell presented his claim to the mayor and city council before he filed the case sub judice; that the city investigated harmful drainage onto Maxwell’s property and that a city engineer submitted plans to the mayor and city council for resolving the drainage problems over Maxwell’s property. However, there is no evidence that Maxwell provided written notice of his claim as is required by OCGA § 36-33-5 before filing suit. Nevertheless, this does not mean that the trial court properly granted summary judgment in favor of the city as to Maxwell’s claim in its entirety.

“Notice given within six months from the expiration of the four-year period during which a nuisance continuously caused damages to plaintiff’s property is within the time prescribed and complies with Code Ann. § 69-308 [now OCGA § 36-33-5]. Vickers v. City of Fitzgerald, 216 Ga. 476, 483 (5) (117 SE2d 316).” City of Gainesville v. Moss, 108 Ga. App. 713 (2) (134 SE2d 547). In the case sub judice, the trial court found that genuine issues of material fact remain regarding the city’s liability for continuing trespass. Consequently, summary judgment was proper “only [as to] those trespasses or nuisances which occurred more than four years prior to the filing of the complaint. Rowe v. Steve Allen & Assoc., Inc., 197 Ga. App. 452[, 453, supra].” It follows that any claim Maxwell may have based on damages sustained within less than four years of any continuing trespass or nuisance is a matter of abatement and is not subject to substantive adjudication. Any such claim is, at best, subject to dismissal pursuant to OCGA § 9-11-12 (b) (6).

Decided February 2, 1994

Reconsideration denied February 18, 1994

Richardson & Chenggis, George G. Chenggis, for appellant.

Sullivan, Hall, Booth & Smith, Jeffrey T. Wise, Jenkins & Eells, Kirk R. Fjelstul, Steven J. Misner, for appellees.

The judgment of the trial court is affirmed in part and reversed in part and the case is remanded for entry of judgment consistent with this opinion.

2. The city’s motion for damages for frivolous appeal pursuant to Court of Appeals Rule 26 (b) is hereby denied.

Judgment affirmed in part and reversed in part and case remanded. Motion for damages for frivolous appeal denied.

Johnson, J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I concur with the majority opinion that summary judgment for the city was proper as to the nuisances that occurred more than four years before the complaint was filed, and that any claim for a more recent nuisance was subject to dismissal in this case rather than/summary adjudication.

With regard to a claim for continuing nuisance not barred by the statute of limitation, “[although the trial court was correct in concluding that appellant had not complied with the ante litem notice requirements [of OCGA § 36-33-5], the judgment was incorrect insofar as it was styled as the grant of a summary judgment rather than as the grant of a motion to dismiss.” Jones v. City of Austell, 166 Ga. App. 808, 810 (305 SE2d 653) (1983). Compliance with OCGA § 36-33-5 is a condition precedent to filing suit against the city, and the failure to satisfy that condition is properly raised as a plea in abatement, not as a subject for summary judgment. Id.

In such cases, the appropriate action is dismissal, with the dismissal not operating as a bar to filing another suit. Id. Accordingly, although the trial court’s grant of summary judgment should be upheld for the nuisance that occurred more than four years before commencement of the action, the trial court’s judgment otherwise must be reversed and the case remanded for further action consistent with the above.

       Maxwell specifically alleges that in 1986, the city’s mayor, Johnson W. Brown, conveyed land to Bergen-Hudson for development of a residential subdivision known as Harts Place; that Brown and members of the city council granted variances for nonconforming use of lots in Harts Place between August 8, 1986, and November 10, 1989, without providing public notice that application for said variances had been made; that Brown now resides in Harts Place; that Brown’s personal desire for the development of Harts Place conflicts with his duties as mayor of the city and that Brown’s unscrupulous conduct in effecting the development of Harts Place is a direct cause of his injuries.


text:
    A93A1972.
    SAWGRASS BUILDERS, INC. v. KEY et al.
    (441 SE2d 99)
   Smith, Judge.

Appellees Ralph B. Key and Plantation Builders, Inc. brought suit against appellant Sawgrass Builders, Inc. (Sawgrass), alleging that appellant breached an agreement with appellees involving the purchase and residential development of certain real estate. The trial court granted appellees’ motion for summary judgment, and Sawgrass appeals.

1. In its answer, Sawgrass asserted, among other things, that appellees lacked standing to bring the present action because the contract sued upon had been assigned by appellees to a third party, C & S Real Estate Services, Inc. OCGA § 9-11-17 (a) provides, in pertinent part, that “[e]very action shall be prosecuted in the name of the real party in interest.” Appellees do not dispute that Sawgrass asserted such a defense. Instead, they argue that defense was met by the affidavit of Ralph Key. We have searched the entire record, including the Key affidavit, in vain for any evidence or bare assertion inconsistent with Sawgrass’s real-party-in-interest defense. The record as a whole reveals that Sawgrass and the appellees were the original contracting parties, nothing more. The question raised by appellant’s pleading, and subsequently on appeal, is whether appellees currently have the right they seek to enforce despite an alleged assignment of the underlying contract to C & S Real Estate Services prior to the commencement of this action. See generally Allman v. Hope, 200 Ga. App. 137 (407 SE2d 107) (1991); Rigdon v. Walker Sales &c., 161 Ga. App. 459, 462 (2f) (288 SE2d 711) (1982).

Summary judgment is appropriate only when the evidence shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). “On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden.” Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973).

Appellees have failed to present any evidence establishing their status as the current holders of an interest in the contract at issue, despite Sawgrass’s allegation that the contract between them has since been assigned by appellees to a third party. Since Sawgrass’s objection that appellees are not the real parties in interest has yet to be addressed, the trial court erred in granting appellees’ motion for summary judgment. See Allman v. Hope, supra.

Decided February 18, 1994.

Andersen, Davidson & Tate, Thomas T. Tate, William M. Ray II, for appellant.

McCullough & Payne, Michael D. Payne, for appellees.

2. Because of our holding in Division 1, we do not reach appellant’s remaining enumerations.

Judgment reversed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A2104.
    CARTER v. THE STATE.
    (441 SE2d 100)
   Smith, Judge.

Timothy Carter was convicted by a jury of four counts of criminal damage to property in the first degree, OCGA § 16-7-22 (a). Each count represents an offense against a different person in an apartment unit at the time shots were fired indiscriminately into the unit by Carter. He appeals, enumerating the denial of his motions for directed verdict on all four counts. Carter concedes that his two enumerations raise a single issue dealing with the scope of the statute under which he was convicted.

“A person commits the offense of criminal damage to property in the first degree when he . . . [k]nowingly and without authority interferes with any property in a manner so as to endanger human life. . . .” OCGA § 16-7-22 (a). It is stipulated that the four persons whose lives were endangered by Carter’s actions were tenants, rather than owners, of the apartment at which Carter fired shots. Carter asserts that to support a conviction under OCGA § 16-7-22 (a), it is essential that the human life endangered must be that of the owner of the property.

Carter relies solely on Bembry v. State, 155 Ga. App. 847 (273 SE2d 208) (1980) for the proposition that criminal damage to property is an offense against ownership. This is incorrect. Bembry deals with the proper meaning and scope of “damage” under the predecessor to OCGA § 16-7-23 (a) (1) (criminal damage to property in the second degree) and nothing more.

Criminal damage to property in the first degree is a crime against the State involving the unauthorized interference with property in a manner that endangers human life. OCGA § 16-7-22 (a) does not expressly or impliedly qualify or limit in any way the scope of the term “human life” as used therein. Carter’s position is clearly without support and utterly without merit.

Decided February 18, 1994.

William V. Hall, Jr., for appellant.

J. Tom Morgan, District Attorney, Gregory J. Giornelli, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A2558.
    JENNINGS v. LIFE INSURANCE COMPANY OF GEORGIA.
    (441 SE2d 479)
   Smith, Judge.

Annie Jennings brought this action to recover the proceeds of a policy of life insurance issued by Life Insurance Company of Georgia. The insurer answered, denying coverage because of material misrepresentations regarding the health of the insured, Jennings’s deceased husband. The trial court granted the insurer’s motion for summary judgment.

The record reveals that both Jennings and her husband applied for policies. Mary Salaam, a licensed practical nurse and the manager of a company administering paramedical examinations for life insurance applications, came to the home of Mr. and Mrs. Jennings to perform the examinations required for the application. Mrs. Jennings is blind, and Salaam verbally posed questions printed on a “statement to medical examiner” to both Mrs. Jennings and her husband and recorded their answers.

The death certificate indicates Mr. Jennings died from cardiac arrest on January 15, 1991, approximately seven months after the application was completed. It is undisputed that he smoked for many years, although the number of cigarettes he smoked per day had declined in the last few years of his life. It is further uncontroverted that he suffered from asthma and diabetes, as well as high blood pressure. Mrs. Jennings testified at her deposition that her husband told Salaam he suffered from these conditions and that she thought he told her he smoked. Although the statement indicates the applicant suffered from hypertension, it reflects negative answers to the questions inquiring whether the applicant had smoked cigarettes or had ever been treated for asthma or diabetes.

In an affidavit submitted in support of the insurer’s motion for summary judgment, Salaam stated she had conducted more than 1,000 paramedical examinations for life insurance applications since 1983 and never asked an applicant to sign a blank form. She asserted it was her “regular and consistent practice in all cases” to read the entire statement to the applicant, record the applicant’s answers, present the completed statement to the applicant to examine before signing, and sign it herself only after the applicant had reviewed and signed it. Because she would not have signed it otherwise, she knew that she returned the completed statement to Mr. Jennings for review and signature.

In another affidavit, Tom Mills, senior underwriter for the insurer, stated that Mr. Jennings’s undisclosed conditions were material to the risk, and had the company been informed of those conditions, it would not have issued the policy under the same terms and conditions.

1. Jennings first contends a genuine issue of material fact exists as to whether the insurer is estopped to deny coverage despite the written statement, because its agent, Salaam, received disclosures that would charge it with knowledge of Mr. Jennings’s medical condition. We do not agree.

It is true that the evidence is in conflict regarding whether Jennings’s husband told Salaam about all his medical conditions. However, this conflict is not material. Although Jennings did not remember that her husband signed the statement, the signed statement is in the record, and there is no suggestion either in the record or in briefs that it was forged. Moreover, Jennings testified that her husband was well educated and had no disability that would have prevented him from reading the statement before he signed it. “[T]he applicant is bound by the answers recorded on the application, whether written by him or by the agent, absent any fraud on the part of the agent in deceiving him as to what was in fact written down as answers, or in preventing him from reading and ascertaining what was written down. [Cits.]” (Emphasis omitted.) Prudential Ins. Co. v. Perry, 121 Ga. App. 618, 622 (1) (174 SE2d 570) (1970).

The statement also requires the applicant to declare that “I have read the above [statement to medical examiner] and my answers to the questions are true and correct to the best of my knowledge and belief.” This declaration appears immediately above the applicant’s signature line. Such a declaration “is formulated to prevent an applicant from asserting that he relied upon someone else, and to ensure that the declaration of truth is not the act of one whose insertion of material misrepresentations would be binding upon the company.” (Citation, púnctuation, and emphasis omitted.) James, Hereford &c. v. Powell, 198 Ga. App. 604, 607 (3) (402 SE2d 348) (1991).

The cases relied upon by Jennings indicate only that recovery under a policy has been permitted, despite material misrepresentations on the application, where the applicant was prevented from discovering the false answers either by his own disability or by specific behavior on the part of the insurer’s agent. See, e.g., Mills v. Lloyds, London, 201 Ga. App. 666 (411 SE2d 713) (1991) (applicant could not read); Stillson v. Prudential Ins. Co., 202 Ga. 79 (42 SE2d 121) (1947) (agent completed application and presented it to applicant with all but signature portion covered). The evidence in this case does not suggest that either of these circumstances was present here. No reason appears why Mr. Jennings could not have discovered, had he read the statement before signing it, that the answers on the statement were not the ones he allegedly gave Salaam. See Perry, supra at 628 (2) (c).

Decided February 18, 1994.

Marilyn S. Bright, for appellant.

Rogers & Associates, Randall F. Rogers, Gorby & Reeves, Michael E. Fisher, Martha D. Turner, for appellee.

Therefore, despite the conflict in the evidence regarding whether Salaam was informed of the applicant’s medical conditions, the insurer was not estopped to deny coverage, and the trial court did not err in granting summary judgment to the insurer on that ground.

2. Jennings also contends the trial court erred in granting summary judgment to the insurer, because it made no showing of the materiality of any alleged inaccuracies in the statement. She maintains that Mills in his affidavit did not categorically deny that the insurer would have issued the policy had it known the undisclosed information; he stated only that the insurer either would not have issued the policy or would have issued the policy on different terms. This, she argues, made the materiality of the misrepresentation a jury question.

It is well established, however, that “[a] material misrepresentation is one that would influence a prudent insurer in determining whether or not to accept the risk, or in fixing the amount of the premium in the event of such acceptance. [Cit.]” Haugseth v. Cotton States Mut. Ins. Co., 192 Ga. App. 853, 854 (386 SE2d 725) (1989). See OCGA § 33-24-7 (b) (3). Since this misrepresentation was clearly material to the risk, the trial court did not err in granting summary judgment to the insurer.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A2237.
    SHOFFNER et al. v. FLEET FINANCE, INC. et al.
    (441 SE2d 455)
   Smith, Judge.

Appellants J. Faye Shoffner and John McKinley Shoffner (“the Shoffners”) brought suit against appellees Fleet Finance, Inc. and Fleet Finance of Georgia, Inc. (hereinafter collectively “Fleet”) alleging fraud and conversion based on the allegedly improper manner and method by which Fleet foreclosed its interest in the Shoffners’ house and land in Newnan, Georgia. The trial court granted Fleet’s motion for summary judgment, and this appeal followed.

The Shoffners fell into arrears on a note and deed to secure debt protecting Fleet’s interest in the property. In an effort to stave off foreclosure, the Shoffners, individually or together, began filing Chapter 13 bankruptcy petitions. The third such petition was dismissed with prejudice on May 17, 1990. Fleet then scheduled a foreclosure sale of the Shoffners’ property. On July 2, 1990, one day before the scheduled sale, a fourth Chapter 13 petition was filed. The next day, a motion was orally granted by the bankruptcy court lifting the stay subject to confirmation. Fleet was ordered to announce at the sale that the foreclosure of the Shoffners’ property was subject to confirmation by the bankruptcy court.

Fleet contends that it properly foreclosed on the property by exposing it to public outcry at the Coweta County Courthouse on the scheduled date and during the legal hours. The Shoffners dispute this, presenting in support the affidavits of interested buyers stating that the property was not in fact called out that day. Under Fleet’s version of the facts, no buyers were present at the sale, and as a result the property was knocked off to Fleet for $326,275.02. The Shoffners allege that the property had a fair market value of $739,500 in July 1990, and that their equity in the property was $350,000. On July 20, 1990, the bankruptcy court decreed that Fleet could not record its deed under power until the Shoffners’ counsel had been given an opportunity to review his clients’ prior cases and to make a motion objecting to the filing of the deed under power if deemed appropriate.

According to the Shoffners, they then entered into negotiations with Fleet in order to allow them to sell the property themselves, and they in fact found a buyer. To enable them to sell the property themselves, the Shoffners paid a $10,000 option fee, and on September 20, 1990 signed a general release of claims against Fleet.

On December 14, 1990, the bankruptcy court heard Fleet’s motion to dismiss with prejudice and Faye Shoffner’s objection to prevent the recording of Fleet’s deed under power. The bankruptcy court held that Ms. Shoffner would be given until December 21, 1990, at 5:00 p.m. to conclude the sale and pay off the loan. The loan was not paid off by that time, and Fleet recorded the deed under power of sale on December 26, 1990. Fleet sold the property to third parties on March 22, 1991. Five months later, on August 28, 1991, the Shoffners brought this action seeking cancellation of the foreclosure and other relief based on the alleged irregularities in the foreclosure sale.

The trial court granted Fleet’s motion for summary judgment based on the release signed by the Shoffners in consideration for the option to sell the foreclosed property themselves. The release states as follows: “In consideration of the sum of $1.00 and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned each for himself, their heirs, executors, administrators, and assigns forever, do by these presents release, remise and forever discharge Fleet Finance, Inc. and Fleet Finance, Inc. of GA, their principals, officers, agents, employees, servants, heirs, successors and assigns, from any and all claims and liability of any nature whatsoever, whether now known or unknown, arising from the beginning of the world to the date hereof.”

The Shoffners concede that in Georgia a release is binding on the party signing it whether based on adequate consideration or not, absent evidence of fraud and absent a fiduciary relationship between the parties. Wheat v. Montgomery, 130 Ga. App. 202, 203 (2) (202 SE2d 664) (1973). They rely on the principle that a release, like any contract, is voidable if fraudulently induced. OCGA § 13-5-5; see Hudson v. Montcalm Publishing Corp., 190 Ga. App. 629, 631 (1) (379 SE2d 572) (1989). However, “in the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations.” Hubert v. Beale Roofing, 158 Ga. App. 145, 147 (279 SE2d 336) (1981).

The Shoffners contend that the release should not bar the present action because they relied on Fleet’s representations regarding the validity of the prior foreclosure proceeding in executing the general release. This contention must fail as a matter of law based on the very assertions made in the Shoffners’ complaint against Fleet. The Shoffners therein allege that “[t]he price stated in the Deed under Power would have been obtained only if the property were sold in a manner intended not to produce any bids.” The price stated in the deed to secure debt was known, or should have been known, to the Shoffners at the time they signed the general release. Regardless of the truth of the matter, the Shoffners are bound by their assertion that such a price precludes even the possibility of a proper sale at auction. “ ‘A false statement is not fraudulent, when there is no reason why the statement should be believed and acted upon.’ [Cit.]” Harrison v. Lee, 13 Ga. App. 346 (2) (79 SE 211) (1913). As a matter of law, the Shoffners simply cannot justify their blind reliance on Fleet’s representations concerning the prior foreclosure sale when signing the release in question here.

Since no other challenge is made to the validity or applicability of the release, and since the release clearly covers causes of action arising at the time of the foreclosure sale here, the trial court properly granted Fleet’s motion for summary judgment on this basis.

Decided February 11, 1994

Reconsideration denied February 21, 1994

Jeffrey L. Sakas, for appellants.

Varner, Stephens, Wingfield & Humphries, J. Timothy White, Brendan J. McCarthy, Carolyn T. Thurston, Samuel W. Malone, for appellees.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A2520.
    HAMMOND v. THE STATE.
    (441 SE2d 675)
   McMurray, Presiding Judge.

Defendant Hammond appeals his conviction of a violation of the Georgia Controlled Substances Act, selling cocaine. Held:

1. Defendant questions the sufficiency of the evidence to authorize his conviction. The State’s evidence was that a woman arrested on prostitution charges approached police with information that she knew someone selling drugs. This informant and her car were searched, she was provided with public funds, and a radio transmitter was concealed on her person which permitted police to monitor and record her conversations. Officers accompanied the informant to a parking lot of a retail store. At that location, the informant got out of the car and made a telephone call. The officers retired to a vantage point from which they could observe both the parking lot and defendant’s house. Shortly thereafter, defendant left his house and walked over to the parking lot where he greeted the informant, got in the car with her, and suggested that she drive around to the back of the store. At this time the officers lost visual contact with defendant and the informant, but continued to monitor their conversation.

Evidence from two sources was presented as to the monitored conversation. A police officer who monitored the conversation testified as to what he heard them say: “[The informant] is talking on, I think, do you have the stuff on you. And conversation began toward driving around back, something about, you know, I don’t want to be seen by police officers, get in trouble. [The informant] replied, well, I don’t want to get locked up either. They was [sic] back there for- a brief period of time. They turned around to come back out, he and [the informant] still having a conversation with Mr. Hammond about the drugs. Is this some good stuff and all of this. And reply she asked and [the informant] said something to the affect [sic] if this is good stuff. Can I come back to you later tonight. The reply was, yes. And Mr. Hammond advised [the informant], thank'you. And got out of [the] vehicle. At this time [the informant] was telling us she goes, Tom, I got the drugs.”

The remaining evidence concerning the monitored conversation is a tape recording of the transmission from the microphone concealed on the informant which was played for the jury. We have listened to the tape recording and have been able to discern less of the conversation than is described by the testimony of the police officer.

In addition to the above evidence, the State also presented testimony that defendant left the car with the public funds provided to the informant and that defendant discarded this money when approached by police officers. The informant did not testify at defendant’s trial.

Defendant testified that he was a social acquaintance of the informant, that the parking lot rendezvous was to conceal this fact from his girl friend, and that the informant had the cocaine and had shown it to him while they discussed getting together later that night. Defendant also testified as to seeing money on the console of the informant’s car but denied having had possession of it.

In the absence of any testimony from the informant providing direct evidence of defendant’s guilt, the question presented is one as to the sufficiency of the circumstantial evidence. We hold that the evidence at trial was sufficient to exclude every reasonable hypothesis save the guilt of the defendant. In view of the minute quantity of cocaine involved it cannot be reasonably asserted that the evidence of the search of the informant could be relied upon to exclude any possibility of a deception by her. Nonetheless, reasonable doubt requires more than a bare possibility of innocence. Reasonable inference refers to those inferences as are ordinarily drawn by ordinary persons in the light of their experiences in everyday life. It is not necessary that circumstantial evidence exclude every inference or hypothesis other than the guilt of defendant. In the case sub judice, the circumstantial evidence that the informant obtained the cocaine from defendant must be considered together with the officer’s description of the monitored conversation as well as his testimony concerning defendant’s possession and denial of possession of the money provided to the informant. We conclude that a rational trier of fact was authorized upon consideration of this evidence to find defendant guilty beyond a reasonable doubt of selling cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Jenkins v. State, 207 Ga. App. 500 (428 SE2d 410).

2. Defendant contends that the State failed to establish a proper chain of custody for the cocaine involved in this case. After defendant left her car, the informant was within the direct line of sight of police who immediately took possession of the cocaine. Defendant’s argument is grounded entirely on a theory of tampering prior to the informant turning possession of this evidence over to police. However, the State’s evidence discussed in Division 1 established with reasonable certainty that tampering did not occur. Brooker v. State, 163 Ga. App. 91 (1) (294 SE2d 203).

Decided February 7, 1994

Reconsideration denied February 21, 1994.

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

3. Defendant’s remaining enumeration of error complains that the trial court refused to charge the jury on the provisions of OCGA § 17-7-90 relating to the legal definition and effects of bench warrants. There was evidence that a bench warrant had been issued for the informant who was absent from trial and defendant maintains that the requested charge was necessary to assist the jury in assessing the credibility issues presented by the evidence in the case. Nonetheless, we fail to find in the circumstances of this case any issue in regard to the effect of bench warrants to be decided by the jury. It was not error to refuse to charge on a matter not in issue. Smith v. State, 180 Ga. App. 278, 279 (1) (349 SE2d 26). In this connection, we further note that there could have been no confusion by the jury as to the obvious meaning of the evidence as to a bench warrant for the arrest of the informant. The significance of an arrest warrant is within the common understanding of the average citizen.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Andrews, Judge. Pope, Chief Judge,

text:
    A93A2169.
    PETERSON v. THE STATE.
    (441 SE2d 481)
   Andrews, Judge.

Peterson was charged with trafficking in cocaine and possession with intent to distribute and found guilty of both. The trial court merged the offenses and sentenced Peterson to life imprisonment. He appeals.

Evidence at trial was that on April 10, 1992, at about 5:30 p.m., DeKalb County Police Officer Terrell Toles was doing an inventory of a car, which belonged to James Smith, a suspected cocaine trafficker. While Officer Toles was surveying the vehicle’s contents, the car phone rang. Toles answered it and told the caller that Smith was not available and that he should call back. Within 20 seconds, the same caller phoned again. The caller stated that Smith was “supposed to be getting me a quarter.” Toles, who understood that the caller was using terms for cocaine, asked whether the caller meant a quarter ounce or a quarter kilo. The caller stated “a quarter key.” Toles informed the caller that he was working on that for Smith. Toles asked the caller how much Smith charged him for the drugs and the caller told him “55,” which Toles interpreted to mean $5,500. Toles told the caller that because he was angry at Smith, he would sell the drugs to him for $5,000.

The caller stated he would come to Atlanta from South Carolina that night for the purchase. Toles gave the caller his pager number and told him to enter a “99,” afterwards to identify himself. No other person had been given this code identification. During the second conversation the caller identified himself as “Al.”

About 10:30 that same night, Toles’ pager went off with the identifying code “99” behind it. Toles called the number back and spoke with the voice identified as “Al.” The two arranged a meeting place at a grocery store and Al stated that he would have a woman companion with him.

Officer Toles went to the meeting place in a blue Jeep Cherokee and met “Al” in a white Impulse automobile with South Carolina plates. Several officers gathered nearby to assist in arresting Peterson when the “take-down” signal was given.

Toles got out of his car and the man in the Impulse, whom Toles identified as Peterson, exited his vehicle. Toles testified that he recognized Peterson’s voice as the same person that he had spoken with three times earlier that day.

Toles accompanied Peterson to his vehicle to get his money. Peterson handed Toles a bag of money and the two men talked about the cocaine business. Peterson told Toles he had no problem selling the drug in South Carolina. Toles returned to the Jeep to get the cocaine and alert the other officers.

Toles then returned to Peterson’s vehicle. As the other officers moved in to arrest Peterson, he began running away, with the cocaine clutched in his hand. He was arrested and the cocaine was seized from him. The money in the bag totaled $5,075 — which was comprised of three $100 bills, four $50 bills, 219 $20 bills, sixteen $10 bills, and seven $5 bills.

Officers Powers and Cox of the Greenwood, South Carolina, Police Department also testified regarding evidence of a similar transaction in which Peterson was involved. The prior transaction involved Peterson selling an eighth of an ounce of cocaine to undercover officer Powers in January 1989 in South Carolina. The transaction was arranged in a parking lot between Powers, a confidential informant, and Peterson the day before the arrest. Peterson was charged with possession of the drug with intent to distribute and he pled guilty in November 1989.

Peterson also testified at trial. He claimed that his 1989 conviction was the result of being set up. He denied that he made phone calls to Officer Toles prior to his arrest in April 1992. He said that he came to DeKalb County to buy a Jeep and that the money he had with him at the time of the arrest was for purchasing the vehicle. He stated a friend named “Alfred Childs” gave him Toles’ number to call for the Jeep.

1. In his first enumeration of error Peterson claims that the trial court erred in imposing a life sentence pursuant to OCGA § 16-13-30 (d). The State concedes that the imposition of the life sentence was erroneous.

Although Peterson did not raise the arguments raised here at the original imposition of the life sentence, he raised the issue by an amended motion for new trial. Subsequently, he also filed a motion to vacate the life sentence, which the trial court granted. Thereafter the trial court reinstated the life sentence. Given these facts, we find that the issue was preserved for our consideration. See generally Taylor v. State, 186 Ga. App. 113 (366 SE2d 422) (1988).

We conclude that the imposition of the life sentence was erroneous and remand the case for resentencing. Unlike Gilbert v. State, 208 Ga. App. 258 (430 SE2d 391) (1993), in this case Peterson’s prior conviction on which the life sentence was based was a conviction from South Carolina. This court determined in Taylor, supra, that it was error to impose a life imprisonment under OCGA § 16-13-30 (d) for a prior drug conviction under Florida law, since that did not constitute a violation of the Georgia Controlled Substances Act. Similarly, in this case, we must conclude that Peterson’s prior conviction under South Carolina law did not invoke the provisions of OCGA § 16-13-30 (d), and thus we remand the case for resentencing.

2. In his second enumeration, Peterson contends that the trial court erred in admitting evidence of an allegedly similar transaction and in not redacting prejudicial handwritten notations from the face of that indictment. There is no indication that Peterson objected to the similar transaction evidence at trial. Although the court stated: “I note your objection for the record,” there was no objection made and this argument is waived. Furthermore, there is no indication that Peterson requested that any material be redacted from the similar transaction evidence and this argument is also waived.

3. Next, Peterson claims that the trial court erred in charging the jury that it could consider his 1989 South Carolina conviction for the purpose of impeachment. When the evidence was initially introduced, the court instructed the jury that the evidence could be considered only as to the identity of the accused, the. state of mind, any alleged common scheme, plan, course of conduct or motive as pertained to the charges for which Peterson was being tried. The court repeated this instruction at the conclusion of the trial.

Before repeating the charge regarding similar transactions, the court instructed the' jury regarding impeachment of witnesses. The court charged that a witness could be impeached by proof that the witness had been convicted of a crime of moral turpitude. The court then stated: “the State has introduced a certified copy of a plea and indictment for the offense of violating the Georgia Controlled Substances Act. [The court was apparently referring to the South Carolina conviction.] That is a felony and I charge you that in the state of Georgia all felonies are crimes involving moral turpitude.”

Peterson argues that to so charge on impeachment by proof of conviction was reversible error since he had not placed his character in issue.

Our first consideration is Peterson’s failure to object to the giving of this charge. Although he concedes that he did not object, he argues that the charge was sufficiently egregious under OCGA § 5-5-24 (c) to warrant reversal. Under that statute, regardless of whether an objection was made, “the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law.”

Although Peterson testified at trial in his own behalf, he did not put his character in issue. See generally OCGA § 24-9-20 (b); Howard v. State, 202 Ga. App. 574 (415 SE2d 45) (1992); Lindler v. State, 149 Ga. App. 155 (253 SE2d 833) (1979). Consequently, the prior conviction could not be considered by the jury for purposes of impeaching Peterson’s testimony. OCGA § 24-9-82; Howard, supra.

“We cannot, however, agree with the appellant that the error requires reversal. In view of the overwhelming evidence of the appellant’s guilt, and notwithstanding the conflicting instructions of the court, we find it highly probable that the error did not contribute to the judgment.” (Citations and punctuation omitted.) Howard, supra at 576. Compare Moore v. State, 202 Ga. App. 476 (3) (414 SE2d 705) (1992); Barnett v. State, 178 Ga. App. 685 (1) (344 SE2d 665) (1986); Davis v. State, 260 Ga. 338 (393 SE2d 260) (1990) (no limiting instructions given upon request).

4. In his fourth enumeration, Peterson argues that he was denied the right to effective assistance of counsel. Citing Cochran v. State, 262 Ga. 106 (414 SE2d 211) (1992), he argues that his retained trial counsel’s performance was deficient in the following particulars: trial counsel did not move for a continuance despite having never talked to Peterson about anything other than bond prior to the call of the criminal calendar; he did not discuss with Peterson the names of available witnesses or call witnesses on his behalf; he did not argue against the introduction of the similar transaction evidence; he did not insist on redaction of prejudicial information on the South Carolina indictment; he filed no motions on Peterson’s behalf other than a bond motion; he filed no written requests to charge and failed to request a charge on lesser included offenses; he did not reserve objection to the court’s charge; and he did not object to the court’s initial sentence.

Peterson raised this issue in a motion for new trial and the court conducted an evidentiary hearing. Peterson and his mother testified at the hearing that trial counsel’s performance was inadequate.

Peterson’s trial counsel, B. J. Smith, an attorney who has practiced law for 25 years and who is also a magistrate court judge, testified that a representative of his office first contacted Peterson in June or July 1992 and conducted an initial interview with him. The report of that meeting revealed that Peterson had presented a different defense in the initial interview than that to which he testified at trial.

On June 19, 1992, an associate of Smith’s attended the arraignment. Smith and his associate made a renewed motion for bond after their first motion was denied. In July 1992, the district attorney permitted Smith and an associate to review the file, and Smith concluded that no discovery motions were necessary. Smith testified that he and Peterson had numerous telephone conversations, although most of them were about bond.

On August 11, Peterson’s mother contacted Smith and stated that she wanted to hire another attorney. Smith recalled that the other attorney appeared at the trial and requested a continuance, which the trial court denied. Thereafter, Smith talked with Peterson about trial strategy, including the similar transaction evidence. Smith stated that he discussed various aspects of the trial with Peterson prior to trial.

A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Warren v. State, 197 Ga. App. 23 (1) (397 SE2d 484) (1990). Here, Peterson must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. Snyder v. State, 201 Ga. App. 66 (8) (410 SE2d 173) (1991). “To establish ineffective assistance of counsel, [a defendant] must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).” Gross v. State, 262 Ga. 232, 233 (1) (416 SE2d 284) (1992). The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. Gross, supra.

We find that trial counsel was effective. We find no deficiency in Smith’s failure to request a continuance, particularly in light of the fact that the other attorney did request one, and the trial court denied the request.

Similarly, we find no deficiency regarding witnesses. The witnesses were not mentioned in Peterson’s initial interview and, even according to his trial .testimony, were cumulative of Peterson’s testimony. Smith testified that Peterson did not inform him of any witnesses he wished to call. Smith’s performance in this regard was not deficient; moreover, Peterson has failed to demonstrate prejudice.

Trial counsel’s failure to object to the introduction of the similar transaction evidence was not deficient. Smith testified that he believed the other conviction was admissible and we agree. Peterson’s argument that the evidence was insufficiently similar is without merit. Moreover, we find no prejudice and Peterson’s claim in this regard is without merit. See generally Weldon v. State, 202 Ga. App. 150 (2) (413 SE2d 466) (1991).

Trial counsel’s failure to insist upon the redaction of a notation on the South Carolina indictment was not deficient. Moreover, the notation referred to was ambiguous, and no showing of prejudice has been made.

Smith’s failure to file motions on Peterson’s behalf and failure to file written requests to charge were trial tactics and did not constitute ineffective assistance. See generally Bridges v. State, 205 Ga. App. 664 (2) (423 SE2d 293) (1992).

We reject Peterson’s argument that Smith’s failure to request a charge on lesser included offenses constituted ineffective assistance. Peterson argues that Smith should have requested a charge on conspiracy and attempt to commit trafficking. This claim is without merit since the evidence did not support a charge on conspiracy or attempt. Peterson’s own testimony was that he had nothing to do with the drug operation and that he was trying to purchase a vehicle.

Peterson complains that trial counsel did not reserve objection to the court’s charge properly. We do not find this failure constitutes deficient performance. Moreover, we have addressed the only specific instruction to which Peterson objects (Division 3, supra), and thus find no prejudice.

Peterson’s final complaint is that Smith did not object to the sentence imposed. This argument is without merit in that we have deemed (Division 1, supra) that this objection was not waived.

5. Finally, Peterson contends that the evidence was insufficient to convict him. This enumeration is without merit. We find that a rational trier of fact could find from the evidence adduced at trial proof of his guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed in part; case remanded for resentencing.

Birdsong, P. J., concurs. Pope, C. J., concurs specially.

Decided February 22, 1994.

Virginia W. Tinkler, for appellant.

J. Tom Morgan, District Attorney, Gregory J. Giornelli, J. Mike McDaniel, Assistant District Attorneys, for appellee.

Pope, Chief Judge,

concurring specially.

While I must agree with the majority’s conclusion in Division 3 that the trial court’s charge to the jury concerning impeachment of a witness by proof of a crime of moral turpitude constitutes harmless error in this case, I write separately to emphasize to the bench and bar that the trial court’s erroneous charge on impeachment of a witness by proof of conviction of a crime of moral turpitude was completely improper under facts such as these. The evidence of defendant’s 1989 South Carolina conviction was admitted solely as evidence of a similar transaction. Although defendant testified at trial, he did not place his character in issue and my review of the record does not reveal that defendant otherwise placed his character in issue.

In this case the certified copy of the conviction was sent out with the jury to consider for another proper purpose and there was overwhelming evidence of defendant’s guilt; therefore, I am constrained to join the majority’s conclusion that this error was harmless. See Howard v. State, 202 Ga. App. 574 (415 SE2d 45) (1992); Sultenfuss v. State, 185 Ga. App. 47 (5) (363 SE2d 337) (1987). That conclusion, however, does not mean that those participating in criminal trials as attorneys and presiding judges should take lightly their duty to insure that mistakes like this do not happen. I query how many more times we should allow blatant errors such as this to be considered harmless.


author: Johnson, Judge.

text:
    A93A1938.
    MURPHY v. THE STATE.
    (442 SE2d 2)
   Johnson, Judge.

Marty Murphy appeals from his convictions of armed robbery, kidnapping, and aggravated assault and the denial of his motion for a new trial.

1. Murphy contends that the trial court erred in admitting evidence of his prior armed robbery conviction as a similar transaction. “Before evidence of similar offenses is admissible, two criteria must be met. First, it must be shown that appellant was the perpetrator of the similar offenses, and second, there must be sufficient similarity or connection between the independent crimes and the offense charged that proof of the former tends to prove the latter.” (Citations and punctuation omitted.) Watkins v. State, 206 Ga. App. 701, 703 (1) (b) (426 SE2d 238) (1992). Murphy pled guilty to, and does not dispute that he was the perpetrator of, the earlier offense. He contends, however, that there is not sufficient similarity between the earlier offense and the offenses presently at issue. We disagree. In both cases, two or more people were involved in the planning and execution of the armed robberies. The perpetrators in both cases were similarly dressed and in both cases threatened the victims, managers of small grocery stores, with guns. In both cases, the offenders fled on foot to cars parked on or near athletic fields. Both armed robberies occurred during the early morning hours. While some differences between the two armed robberies exist, there is no requirement that the transactions be identical in every aspect. Everhart v. State, 209 Ga. App. 82 (1) (432 SE2d 670) (1993). The crimes were sufficiently similar that proof of the earlier crime tended to prove the offenses charged. Evidence of the prior armed robbery was properly admitted.

2. Murphy argues that his convictions are not authorized by the evidence because the State presented only the uncorroborated testimony of two accomplices that Murphy participated in the charged offenses. “The requirement of corroborating evidence to support the testimony of an accomplice does not apply where the evidence is supplied by the testimony of more than one accomplice.” (Citation omitted.) Belcher v. State, 207 Ga. App. 117,118 (2) (427 SE2d 88) (1993). Moreover, we find that the evidence as a whole did supply sufficient corroboration of the statements of the accomplices from which a rational jury could find, beyond a reasonable doubt, that Murphy was a party to the crimes. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Murphy claims that the trial court erred in denying his motion for a continuance so that a transcript of the first trial of this case, which ended in a mistrial, could be prepared. The court declared a mistrial on September 30, 1992, when the jury in the first trial of this case was unable to reach a verdict. The case was again called for trial on November 16, 1992. Murphy’s attorney did not request a transcript of the first trial until November 6, 1992. In order to justify a claim that the trial court abused its discretion in denying the continuance, Murphy’s counsel is required to show that he exercised due diligence in requesting a transcript. Annison v. State, 206 Ga. App. 861, 863 (5) (427 SE2d 5) (1992). He has not made such a showing, especially in light of the fact that he waited for over a month after the first trial ended before attempting to obtain a transcript. One cannot complain of a ruling that his or her own procedure or conduct aided in causing. Bogan v. State, 206 Ga. App. 696, 700 (5) (426 SE2d 392) (1992). Further, Murphy has not shown how the lack of additional time harmed him. Davis v. State, 190 Ga. App. 178, 179 (378 SE2d 519) (1989). “Whether to grant a continuance is a matter committed to the sound legal discretion of the trial court (OCGA § 17-8-22), and the trial court’s decision will not be disturbed on appeal unless clearly abused.” (Citation omitted.) Annison, supra at 863 (5). We find no abuse of discretion.

Decided February 1, 1994

Reconsideration dismissed February 23, 1994.

L. Elizabeth Lane, for appellant.

Willis B. Sparks III, District Attorney, Graham A. Thorpe, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A93A2024.
    TAYLOR et al. v. SUPER DISCOUNT MARKET, INC.
    (441 SE2d 433)
   Smith, Judge.

Lawrence Taylor, Ervan Jacobs, and Randy Rayford brought suit against Super Discount Market, Inc. d/b/a Cub Foods seeking damages for false imprisonment. The trial court granted Super Discount’s motion for summary judgment.

The record reveals that during a visit to Atlanta from his home in Mississippi, Taylor and his stepsons, Jacobs and Rayford, stopped at a Cub Foods store in Marietta to purchase several items. While in the checkout line to pay for the groceries, Taylor handed Rayford a $20 bill, which Rayford handed the cashier, Kimberly Devens. Devens testified she thought the bill looked peculiar, primarily because the words “In God We Trust” were missing. She handed it to off-duty Marietta police officer David Mumford, who was working as a security guard in the store and was standing behind her. She asked Mumford what he thought of it. Taylor, Rayford, and Jacobs testified by deposition that Devens told them not to leave. Taylor and Jacobs also remembered Devens saying the bill was counterfeit. Taylor provided another $20 bill to pay for the groceries, and the sale was completed.

Appellants testified that Mumford asked them to step aside into a vestibule, because there was a problem with the bill and he would have to call the FBI. Shortly thereafter, a person in plainclothes, whom appellants believed to be an FBI agent, arrived, followed by several other police officers. Appellants were questioned about the money, and the bill was examined. According to appellants, the bill was returned after an interval of about 45 minutes, and they were released. However, in an affidavit submitted in support of Super Discount’s motion for summary judgment, Bob Williams, communications director of the Marietta Emergency Communications Department, stated that departmental records indicated the time elapsed between Mumford’s call for assistance regarding a possible counterfeit bill and the return to service of the officers dispatched in response to that call was only 16 minutes.

Mumford stated in an affidavit that when Devens handed him the bill he examined it, observed that it was a crisp looking 1950 bill, compared it with a newer bill, and noticed that the words “In God We Trust” were missing. Because he could not himself determine whether the bill was counterfeit, he called Sergeant Townsend, who had some experience in such matters. When Townsend arrived and examined the bill, he determined that it was simply “an old bill in excellent condition.” The bill was then returned.

The trial court’s order granting Super Discount’s motion does not indicate the basis on which the motion was granted. Super Discount’s motion for summary judgment was made on two grounds. It argued, first, that Super Discount was not liable because it never ordered or instructed its employees to detain appellants, and assuming a detention occurred, it was accomplished by Mumford. As a police officer, he had a duty to enforce the law 24 hours a day, even though he was off-duty and employed by Super Discount at the time of the incident. See Quinones v. Maier & Berkele, Inc., 192 Ga. App. 585, 589 (1) (c) (385 SE2d 719) (1989). Secondly, Super Discount argued, again assuming a detention occurred, that OCGA § 51-7-60 applied here and exempted it from liability for any such detention. That statute creates a privilege for merchants detaining those suspected of shoplifting.

1. Appellants contend that OCGA § 51-7-60 does not apply to the facts of this case. We agree.

The statute provides a defense to claims of false arrest or false imprisonment “[w]henever the owner or operator of a mercantile establishment or any agent or employee of the owner or operator detains, arrests, or causes to be detained or arrested any person reasonably thought to be engaged in shoplifting.” (Emphasis supplied.) The statute makes no reference to the detention of people for . reasons other than suspected shoplifting, see Winn-Dixie Stores v. Nichols, 205 Ga. App. 308, 311 (2) (422 SE2d 209) (1992), and being in derogation of common law, it must be strictly construed. See generally Bd. of Trustees &c. v. Alexander, 181 Ga. App. 360, 361 (352 SE2d 228) (1986).

Contrary to appellees’ argument, the conduct suspected in this case is not within the purview of OCGA § 16-8-14 (a), which defines shoplifting. Appellants were not suspected of shoplifting but rather of passing counterfeit currency. Accordingly, OCGA § 51-7-60 does not provide a ground for the entry of summary judgment in favor of Super Discount.

2. Appellants also maintain that Super Discount’s argument that any detention of appellants was carried out solely by Mumford in his capacity as a police officer ignores evidence in the record, and that the evidence reveals at least a question of fact regarding whether Devens, as well as Mumford, “detained” them tortiously.

In an action for false imprisonment, the essential elements are a detention and the unlawfulness thereof. Williams v. Smith, 179 Ga. App. 712, 713-714 (2) (348 SE2d 50) (1986). The evidence reflects without dispute that Devens did not instruct or urge Mumford to arrest or detain appellants based upon her judgment that the bill was counterfeit. See generally Franklin v. Piggly Wiggly Food Southern, 175 Ga. App. 20, 21 (2) (332 SE2d 329) (1985). Although some evidence indicates that Devens told appellants to “hold it” or “wait right here,” any detention resulting from those words was merely momentary. Devens then immediately handed the $20 bill to Mumford and asked him to make a judgment as to its validity. Appellants admit that only about a minute passed between the time Devens left them and the time she turned the bill over to Mumford and that Devens never said more than one sentence to them, never touched them, never spoke in a loud voice, and thanked them for their purchase.

There is also a more important consideration. Even assuming appellants are correct that there is some evidence Devens herself was responsible for a detention of sufficient length to meet the requirements of a claim for false imprisonment, no evidence exists that any such detention was in any way unlawful. Although Devens mistakenly suspected the bill was counterfeit, there is no dispute it was an honest mistake on her part, and when she became suspicious, she immediately turned the matter over to the police. We decline to hold that a business may not voice a question in a courteous manner to a customer regarding currency that appears to trained personnel to be unusual, or to ask a customer to wait a moment while proper authorities are informed of the question, without exposing itself to liability for false imprisonment. “While it is certainly true that the owner of a business has a duty to protect its customers from injury caused by the tortious misconduct of its employees ([cits.]), the undisputed evidence refutes the existence of such misconduct in this case.” Baggett v. Nat. Bank &c. Co., 174 Ga. App. 346, 348 (2) (330 SE2d 108) (1985).

A trial court’s judgment right for any reason will be affirmed. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991). Because any momentary detention by Devens was not unlawful, an essential element of appellant’s case was negated, entitling Super Discount to summary judgment on that ground. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

Decided February 7, 1994

Reconsideration denied February 23, 1994

Nick Long & Associates, Nick Long, Darryl S. Marmon, for appellants.

Drew, Eckl & Farnham, G. Randall Moody, Jennifer D. Welch, for appellee.


author: Birdsong, Presiding Judge.

text:
    A93A1815,
    A93A1816. SMITH v. HOLEMAN et al.; and vice versa.
    (441 SE2d 487)
   Birdsong, Presiding Judge.

Mary Marlene Smith sued Clarence Holeman, The Varsity Drive-In of Georgia, Inc. and the City of Athens for damages for illegal arrest, malicious (“retaliatory”) prosecution, false imprisonment, assault and battery, intentional infliction of emotional distress, and civil rights violations under 42 USCA § 1983. These claims arise out of events which began when Smith tried to enter The Varsity restaurant while barefooted.

Holeman was a full-tinie employee of the Athens police department. While working at The Varsity part-time, he wore his Athens police uniform. When he told Smith she could not enter the restaurant without shoes, she cursed and left; she drove around the parking lot, onto Broad Street and back to The Varsity drive-thru lane to order food. Smith denies that she drove improperly in doing this. Holeman ran to her car and told her to leave. She contends he has admitted he did this not because of the way she drove but because he did not like her attitude. In his incident report Holeman stated: “I approached the suspect about her driving, she became smart and had a nasty attitude in general.” Smith contends she apologized but Holeman said he did not like her attitude and acted very hostile; he opened the door and pulled her out; she fell to the ground and Holeman roughly jerked her up, handcuffed her, had her taken to jail, had her car towed and had her dog taken away by the dogcatcher. The evidence is not clear as to whether Holeman actually charged her with a crime at that time.

Holeman contends that when Smith left The Varsity, she got in her car and raced out of the parking lot and back on the premises at speeds of 50-60 mph before coming to a screeching halt in the drive-thru lane; he asked her at least four times to leave but she refused and told him to go ahead and arrest her. He told her she was under arrest, but she tried to drive off, so he reached in and turned the car off; he pulled her hands off the steering wheel and she accidentally fell to the ground. The five witnesses, are all Varsity employees.

These events occurred on May 12, 1989. Four days later, Holeman got warrants charging Smith with criminal trespass and misdemeanor obstruction of an officer. Smith pled not guilty in state court. In August 1989, Holeman learned the charges had been nolle prossed and that Smith’s attorney was making inquiries to the police department. According to Smith, Holeman immediately tried to get the charges reinstated. Holeman expressed concern to the solicitor about being left open for a lawsuit. The solicitor refused to reinstate the charges. Holeman said he would carry the case to the district attorney. On his way to that office, he spoke to an attorney to whom he appeared angry and expressed concern that he might be sued, and said “he was going to go and get [the district attorney] to indict it.” The district attorney, when told Holeman might be sued, agreed to review the case. Before the grand jury, Holeman was the only witness. An indictment was returned in three counts: reckless driving, criminal trespass, and felony obstruction. Smith pled not guilty and filed a plea in bar, alleging this to be a retaliatory prosecution.

The prosecution for reckless driving, criminal trespass and felony obstruction of an officer remains pending. The trial court granted summary judgment to Holeman on the claims for false imprisonment, malicious prosecution, and the § 1983 claim, but denied summary judgment on the claims for assault and battery, intentional infliction of emotional distress, and punitive damages. The court granted summary judgment to The Varsity as respondeat superior and granted in part and denied in part the City of Athens’ motion for summary judgment on the § 1983 claim.

Smith appeals, contending that the trial court should not have granted summary judgment to defendants on any claim, but that any claims which cannot be pursued until after the criminal prosecution is terminated should only have been dismissed without prejudice. Holeman and the City of Athens cross-appeal. We apply the standards set out in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) as to summary judgment proof and procedure. Held:

1. The defense that the prosecution has not terminated in a malicious prosecution action is one in abatement, because the prosecution may yet terminate in the plaintiff’s favor, and she may yet have a cause of action. A motion for summary judgment tests the merits of a claim and cannot be granted on matters in abatement, which are properly disposed of by motion to dismiss. Primas v. Saulsberry, 152 Ga. App. 88 (262 SE2d 251); Bennett v. Fine Jewelers &c., 194 Ga. App. 377, 379 (390 SE2d 625). So, wherever the trial court granted summary judgment to defendants on a claim which may yet be asserted should the criminal prosecution terminate in plaintiff’s favor, the claim should have been dismissed without prejudice.

2. To prove false imprisonment (see OCGA § 51-7-20) it is not necessary to show malice. The defendant has the burden to prove the arrest was lawful, and when the arrest was without warrant he must show one of the exigent circumstances listed in OCGA § 17-4-20 (a). Collins v. Sadlo, 167 Ga. App. 317 (306 SE2d 390). Holeman contends the arrest was proper because a warrantless arrest may be made “by a law enforcement officer ... if the offense is committed in his presence.” OCGA § 17-4-20 (a). See Wilson v. State, 223 Ga. 531, 536 (156 SE2d 446), cert. den. 390 U. S. 911. But this proviso excuses Holeman only if he was acting as a police officer and not in his capacity as security guard for The Varsity. Colonial Stores v. Holt, 118 Ga. App. 826, 828 (166 SE2d 30). The mere fact that Holeman was accoutred as a police officer does not convert his conduct into that of a police officer. If Holeman arrested Smith because she violated the law, he was acting as a police officer, albeit an off-duty officer. See Duncan v. State, 163 Ga. App. 148 (1) (294 SE2d 365). But if he arrested her to get her off his employer’s premises, he was not acting solely as a “law enforcement officer.” See Welton v. Ga. Power Co., 189 Ga. App. 17 (1) (375 SE2d 108). There is evidence that Holeman’s duties as a security guard included arresting disorderly persons to remove them from the premises, so it cannot be said as a matter of law that the arrest was lawful under § 17-4-20 (a). Whether the arrest was lawful as one made by a police officer is a jury question.

However, Smith may not maintain an action for false imprisonment until the criminal action is terminated in her favor (McCord v. Jones, 168 Ga. App. 891 (311 SE2d 209)) for the pending prosecution is a continuance of the prosecution which was nolle prossed and is not barred. Bowens v. State, 157 Ga. App. 334 (277 SE2d 326). The summary judgment on Smith’s claim for false imprisonment is reversed with direction to dismiss the claim without prejudice. Bennett, supra; Primas, supra. 3. Holeman contends he is immune to the claims for assault and battery and intentional infliction of emotional distress, but we decline to so hold. If the arrest was lawful based on probable cause, he had the right to use that force reasonably necessary. See Morton v. State, 190 Ga. 792, 799 (10 SE2d 836); Smith v. State, 144 Ga. App. 785, 786-787 (242 SE2d 376). If the arrest was unlawful, Smith had the right to resist the unlawful arrest with all force necessary. See Wagner v. State, 206 Ga. App. 180 (424 SE2d 861) (physical precedent only, Court of Appeals Rule 35 (b)). A police officer assaults a person by attempting an unlawful arrest with force. Brooks v. State, 144 Ga. App. 97, 100 (240 SE2d 593). Even in a lawful arrest, an officer may not use more force than is reasonably necessary in the circumstances. Bennett v. State, 169 Ga. App. 85, 86 (311 SE2d 513). These claims cannot be determined until the lawfulness of the arrest is determined. The motion for summary judgment was properly denied, but the claims must be dismissed without prejudice. Bennett, supra; Primas, supra.

4. The trial court erred in granting summary judgment on the merits to The Varsity as respondeat superior to Holeman in this suit. Smith’s claims against The Varsity involve Holeman’s conduct on its premises: unlawful arrest, assault and battery and intentional infliction of emotional distress. If the servant commits a tort as a police officer, the master will not be liable, unless it was done at his direction. Quinones v. Maier & Berkele, 192 Ga. App. 585, 589 (2) (385 SE2d 719). But the fact that Holeman was a police officer does not relieve The Varsity for his acts within his capacity as its employee. The case against The Varsity comes down to Holeman’s capacity when the alleged torts occurred. Id. at 590; Welton, supra.

The Varsity is not relieved of liability merely because he used his capacity as a policeman to arrest Smith; he was not on-duty as a police officer (see Colonial Stores v. Holt, supra), and his reasons for his actions are a question of fact. The evidence may show he was hired by The Varsity to work in his police uniform, to lend that authority to his job at The Varsity (see Duncan v. State, supra at 149), so it cannot immunize itself by saying he acted as a police officer.

Moreover, the incident was observed by five Varsity employees including an assistant manager, and it is not suggested that any of them tried to temper his acts.

Summary judgment to The Varsity on the merits was error, but since Smith’s claims against Holeman cannot be determined until the criminal prosecution is resolved, the claim must be dismissed without prejudice. Bennett, supra; Primas, supra.

5. The denial of summary judgment for punitive damages was correct on the merits, but the claim must be dismissed without prejudice. Bennett, supra; Primas, supra.

6. The trial court correctly denied summary judgment to the City of Athens on the claim under 42 USCA § 1983 for retaliatory (malicious) criminal prosecution.

An action for malicious prosecution must be supported by absence of probable cause and by malice. El-Amin v. Trust Co. Bank, 171 Ga. App. 35 (318 SE2d 655). The grand jury’s indictment is prima facie but not conclusive evidence of probable cause (Hill v. Trend Carpet, 154 Ga. App. 446 (268 SE2d 682)), so the burden shifts to Smith to show specific evidence that probable cause did not exist and that the charges were motivated by malice. Parks v. Norred & Assoc., 206 Ga. App. 494, 496 (426 SE2d 12); Sears Co. v. Weddington, 197 Ga. App. 52, 53 (397 SE2d 471); Booker v. Eddins, 183 Ga. App. 449, 451 (359 SE2d 211). If the officer gave information he knew was false and which unduly influenced the grand jury, he may be liable. El-Amin, supra; Melton v. LaCalamito, 158 Ga. App. 820, 822 (282 SE2d 393); see Ginn v. C & S Nat. Bank, 145 Ga. App. 175, 178 (243 SE2d 528). The suit may not necessarily depend on the knowingly illegal cooperation of the district attorney, for while he may have acted in good faith, the prosecution may still be without probable cause if, e.g., a defendant gives perjured testimony, and if the basis of his testimony bringing about the indictment is a malicious spirit or improper motive. See Price v. Cobb, 63 Ga. App. 694, 700-703 (11 SE2d 822).

Decided February 23, 1994.

McArthur & McArthur, John J. McArthur, for appellant.

Boyce, Ekonomou & Atkinson, Peter F. Boyce, Catherine M. Packwood, for appellees.

However, public policy disfavors actions for malicious prosecution, particularly suits which impugn the grand jury process; the State has the right to prosecute crimes without the prosecutor’s feelings being questioned, and citizens and police are encouraged to bring to justice those who are apparently guilty. Thus, “as long as there was probable cause to prosecute,” (emphasis supplied) {Day Realty Assoc. v. McMillan, 247 Ga. 561, 562 (277 SE2d 663)) and if there were no evidence of improper motive (malice) on the part of Holeman, summary judgment or a directed verdict for defendants would be in order. Hartshorn v. Smith, 104 Ga. 235, 239 (30 SE 666); Stuckey v. Savannah &c. R. Co., 102 Ga. 782 (29 SE 920); Darnell v. Shirley, 31 Ga. App. 764 (3, 9) (122 SE 252).

Smith has produced direct evidence that after Holeman learned the misdemeanor charges were nolle prossed and that her attorney was inquiring about the arrest, Holeman stated to witnesses that the nolle prosequi left him open for a lawsuit, and he went directly to the district attorney, who he said looks after policemen. Smith’s evidence may overcome the prima facie but not conclusive evidence of probable cause which is the grand jury’s indictment. The grant of summary judgment to Holeman on the malicious (“vindictive”) prosecution claim was improper, but the claim should be dismissed without prejudice. The § 1983 claim should likewise be dismissed without prejudice, for a jury may reasonably conclude a vindictive prosecution was carried on in violation of Smith’s civil rights.

Judgments reversed with direction.

Pope, C. J., concurs. Andrews, J., concurs in judgment only.


text:
    A93A2272.
    ADDO v. THE STATE.
    (441 SE2d 486)
    Decided February 23, 1994.
    Peter Addo, pro se.

      Lewis R. Slaton, District Attorney, Carl P. Greenberg, Leonora

      Grant, Assistant District Attorneys, for appellee.
   Johnson, Judge.

A jury found Peter Addo guilty of criminal trespass, a misdemeanor. The trial court imposed a twelve-month sentence, providing in its order that Addo would not receive credit for the ten months he served in jail while awaiting trial.

1. Addo contends that the trial court erred in attempting to deny him credit for time served. “Indeed, each person convicted of a crime in this state shall be given full credit for each day spent in confinement awaiting trial and the credit or credits shall be applied toward the convicted person’s sentence. OCGA § 17-10-11 (a) (Code Ann. § 27-2530).” (Punctuation omitted.) Casarlo v. State, 169 Ga. App. 515 (313 SE2d 772) (1984). See also Harper v. State Bd. of Pardons & Paroles, 260 Ga. 132, 133 (390 SE2d 592) (1990). We note that the amount of credit given for time served is to be computed by the convict’s pre-sentence custodian and then awarded by his post-sentence custodian. Beeks v. State, 169 Ga. App. 499, 500 (2) (313 SE2d 760) (1984); Casarlo v. State, supra. In light of the fact that the trial court is not involved in this process, the trial court’s attempt to deny credit for time served might be considered ineffectual. However, the custodian in this case Fulton County, may not be placed by a trial court in the difficult position of having to decide between enforcing the statute and enforcing the judge’s order. Because the judgment entered was in conflict with the statute, direction is hereby given that the judgment be modified to comply with requirements of law. See Noble v. State, 132 Ga. App. 755, 756 (4) (209 SE2d 30) (1974).

2. Addo also contends that the trial court made what he believed were improper remarks during the sentencing phase. First, we note that the sentence imposed was authorized .by statute. OCGA § 17-10-3 (a) (1). Thus, if any such remarks were made, they were of no consequence. Secondly, the burden is on the party claiming error to show it by the record. Polley v. State, 203 Ga. App. 825, 827 (4) (418 SE2d 107) (1992). We find nothing in the record to support Addo’s contention that the judge made improper remarks.

Judgment affirmed. Case remanded with direction.

McMurray, P. J., concurs. Blackburn, J., concurs in judgment only.


text:
    A93A1977.
    THE STATE v. WILLIAMS.
    (441 SE2d 501)
   Smith, Judge.

Trazet Taymea Williams was charged with trafficking cocaine. OCGA § 16-13-31 (a) (1). The State brings this appeal pursuant to OCGA § 5-7-1 (4) from the trial court’s grant of Williams’s motion to suppress cocaine found in a warrantless search of her apartment.

The evidence presented at the hearing on the motion showed that on the night of June 19, 1992, Officers J. W. Downing and Alan Holloway of the Clayton County Police Department responded to a 911 call regarding a possible burglary. The call originated at apartment 2H on Highway 85, and the officers went to that location. They found the occupant of that apartment and Williams, who was dressed in a nightgown. Williams appeared upset and shaken and had fresh cuts and bruises all over her body. She informed Downing she had arrived at her nearby apartment and was leaving her car to enter her home when she observed two men in a large vehicle driving up and down the street, causing her to become very nervous. Nevertheless, she entered her apartment, locked the door, and prepared for bed. She then heard loud pounding on her front door, became frightened, and ran out the back door. She jumped over a railing and ran to the apartments on Highway 85 a short distance away.

Downing testified that, he, Holloway, and Williams went back to Williams’s apartment at his suggestion for two reasons: to “make sure that these people that were there weren’t in her apartment” and to check on the child’s safety, since Williams appeared to be concerned .because her daughter was in the apartment. Holloway also testified that Williams had voiced some concern about her child. Both officers testified that when in Williams’s apartment they were looking only for possible suspects.

1. The State contends the trial court erroneously granted Williams’s motion to suppress, because the undisputed evidence shows that Williams freely and voluntarily consented to the search of her apartment. We do not agree.

Holloway testified that Williams had given the officers permission to enter the apartment. Downing, however, testified on direct examination only that Williams never told him not to enter. On cross-examination, Downing did not recall specifically asking for Williams’s permission to search. After being challenged with his prior contradictory testimony at the hearing before a magistrate, Downing admitted that he asked Williams for her consent, that she did not respond to his question, and that she never gave him permission to search. As held by this court in Miranda v. State, 189 Ga. App. 218 (375 SE2d 295) (1988), quoting United States v. Berry, 670 F2d 583, 596 (5th Cir. 1982), although silence in the face of a request for permission to search may, when accompanied by other conduct, sometimes be interpreted as acquiescence, such “ ‘acquiescence cannot . . . substitute for free consent.’ ” Miranda, supra at 221 (3).

The evidence was therefore in conflict, and there was “a question of fact as to whether there was a valid consent to search. This was a matter exclusively within the province of the factfinder, the trial court. Unless clearly erroneous, the trial court’s rulings on disputed facts and credibility at a suppression hearing must be accepted . . . on appeal. The trial court’s ruling on the motion to suppress in the present case was supported by the evidence and was not clearly erroneous.” (Citations and punctuation omitted.) Fulton v. State, 192 Ga. App. 693, 694-695 (1) (385 SE2d 777) (1989).

The State also argues, relying on Brown v. State, 856 SW2d 177 (Tex. Cr. App. 1993), that Williams implicitly consented to the search of her apartment when she called 911 and requested police assistance. Brown held that when a crime is reported by an individual who owns or controls the premises to which police are summoned and who either states or suggests that the crime was committed by a third person, he or she implicitly consents to a search of the premises reasonably related to the routine investigation of the offense and identification of the perpetrator. In this case, however, the police were not summoned to Williams’s apartment but to a nearby apartment where she had fled. Downing admitted that the 911 call had not been placed by Williams but by the occupant of the apartment to which the police had originally responded. Downing also admitted that Williams had not asked the officers for help. Even if Brown were binding on this court, it is based on clearly distinguishable facts. The trial court did not err in finding that Williams had not consented to the search of her apartment.

2. The State also contends the trial court erred in granting Williams’s motion to suppress because the search was justified by exigent circumstances. We do not agree.

The State argues that Williams’s' expressed concern for her daughter in the apartment, as well as the officers’ observation of signs of violence, created an emergency to which they were entitled to respond by entering and searching the apartment. See generally Gilreath v. State, 247 Ga. 814, 820-822 (1) (279 SE2d 650) (1981). See also Hatten v. State, 253 Ga. 24, 25 (2) (315 SE2d 893) (1984). Although both officers testified that Williams had voiced some concern for her daughter and that they observed signs of violence at Williams’s apartment, the officers’ testimony on cross-examination also left the evidence in conflict, or at least in doubt, on the question of the existence of exigent circumstances. Downing was cross-examined regarding both the incident report he wrote immediately after the incident and his testimony at the hearing before a magistrate given four days after the incident, in neither of which had he mentioned anything about Williams’s daughter. Both officers admitted no child was found in the apartment. Although Downing testified he observed a front railing that appeared to have been knocked down, he also testified they found the front door closed and presumably locked, as Williams had told them it would be, and detected no evidence of forced entry. In view of the questionable evidence of any emergency, together with the undisputed evidence that Williams did not request police assistance and that no child was found in the apartment, we cannot say the trial court’s failure to find exigent circumstances sufficient to support a warrantless search was clearly erroneous.

Decided February 24, 1994.

Robert E. Keller, District Attorney, Mary D. Hanks, Assistant District Attorney, for appellant.

Herbert Shafer, for appellee.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.