text:
    A00A1767.
    PEEK v. THE STATE.
    (542 SE2d 517)
   Phipps, Judge.

Edward Peek appeals his conviction for burglary. He asserts that the evidence was insufficient to support his conviction, that the trial court erred in failing to grant a mistrial based upon improper closing argument, and that his stepfather was improperly allowed to sit on the jury. We find that the evidence was sufficient and that the remaining issues are either not preserved for appellate review or not supported by the record. Therefore, we affirm.

Viewed in the light most favorable to the verdict, the evidence authorized the jury to find the following. On March 5, 1996, Mandy Parker arrived home to find her back door “standing wide open.” Shortly afterward, she saw a man exit the door carrying a videocassette recorder under his arm. The man fled, and Parker gave chase in her truck. The man threw down the VCR in Parker’s yard, passed through a barbed wire fence, and ran across pastures neighboring Parker’s yard. Parker could not continue the chase after the man crossed the fence.

She called the police, who responded within minutes. She described the man as black, dark-skinned, thin, with short hair, and wearing a white shirt and blue jeans. One of the officers drove “up the road just a little further” to look for a person matching that description. Approximately 20 minutes after Parker’s call, the officer saw Peek one-half mile to a mile from Parker’s home walking away from her street. Peek matched the physical description and was wearing a white button-down shirt and light blue or turquoise-colored blue jeans. The officer stopped him and radioed back to the scene for clarification of the clothing description. Parker stated that the man’s shirt was a button-down type and that his jeans were turquoise in color.

The officer then took Peek to Parker’s residence. When she saw Peek in the police car, Parker immediately stated that he was the man she had seen leaving her home. Peek got out of the car and stated that he “wasn’t the person,” but Parker identified him again. She also noted that Peek’s shirt had a tear in the back which was not there when she saw him leaving her home. She suggested that the shirt could have been torn when Peek passed through the barbed wire fence.

At trial, Parker again identified Peek as the man who had left her home with her VCR and testified that she had been as close to him as six to eight feet. Peek testified that he had been window shopping in town and was simply walking home when the officer stopped him.

1.
On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant ... no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

“A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another. . . .” There is no dispute that a burglary occurred. The issue is whether the evidence was sufficient to establish beyond a reasonable doubt that Peek was the burglar.

Peek contends that the evidence was circumstantial and did not exclude every reasonable hypothesis of his innocence. Therefore, he contends, the evidence was insufficient to warrant conviction. But Peek’s conviction was not based solely upon circumstantial evidence. Parker testified that she saw him exit her home carrying her VCR and that she had not given him authority to enter her home.

Peek emphasizes that he was stopped a mile from Parker’s home and that at trial Parker referred to the burglar as Calvin Peek and described the burglar’s shirt as blue before later correcting herself and stating that it was white. The jury was presented with evidence that a person can travel a mile on foot in 20 minutes — the length of time between Parker’s call to the police and the discovery of Peek about a mile from her home. And Parker testified that she did not know Peek and could have been mistaken about his name.

Notwithstanding Peek’s contentions, we find that a rational trier of fact could conclude beyond a reasonable doubt that he burglarized Parker’s home.

2. During closing argument, the prosecutor stated: “[Peek] saw a bunch of folks while he was window shopping uptown, a lot of folks, didn’t stop to talk to them, and he didn’t bring any one of them here today. Not one person came up on that witness stand and said, ‘Well, you know, the lady got burglarized, but. . . .’ ” In response to this argument, Peek’s trial counsel made a motion for mistrial. The trial court denied the motion for mistrial but instructed the jury to disregard that portion of the prosecutor’s argument. The prosecutor then completed his argument without further objections.

Because the motion for mistrial was not renewed after the curative instructions, the denial of the motion was not preserved for appellate review.

3. OCGA § 15-12-135 (a) provides, “All trial jurors in the courts of this state shall be disqualified to act or serve in any case or matter when such jurors are related by consanguinity or affinity to any party interested in the result of the case or matter within the sixth degree as computed according to the civil law.” Peek asserts that one of the jurors in his trial, Bobby Mapp, was his stepfather and should have been disqualified.

Without deciding the merits of this issue, we note that the record does not show that Mapp is related to Peek. “[Peek] has the burden ‘to affirmatively show asserted error by the record. [Because he has] failed to demonstrate support in the record for this [claim], we find no error.’ [Cits.]”

Judgment affirmed.

Johnson, C. J., and Smith, P. J., concur.

On Motion for Reconsideration.

Peek contends that contrary to this court’s determination in Division 2 of the above opinion, he did preserve the issue of whether the trial court erred in failing to grant his motion for mistrial, which was based on comments made by the prosecutor in closing argument. As stated in Division 2, Peek did not renew his motion for mistrial. But, in his motion for reconsideration, Peek directs this court’s attention to a portion of the transcript after proceedings in his trial and sentencing were concluded. There, Peek’s counsel asked the court to have the record reflect that he preserved his objection to the denial of the mistrial, noting that the judge had a practice of “reserving] any defense exceptions without unnecessary repetitiveness on the part of defense counsel.” The judge stated that he believed the issue had been sufficiently preserved and instructed the court reporter to “put on the . . . transcript that defense counsel renewed [the] motion.”

As an initial matter, we find that for the protection of his client, counsel would have been well advised to assure the preservation of his objection before the conclusion of both the trial and the sentencing. Moreover, we note that the need to consider this matter on motion for reconsideration could have been avoided if counsel had complied with Court of Appeals Rule 27 (a) (1), which requires the appellant to state in his brief the method by which each enumeration of error was preserved for appellate review. “ ‘[I]t is not the function of this court to cull the record on behalf of a party.’ ” However, we shall address the merits of Peek’s claim.

Peek argues that under Blige v. State, it was improper for the prosecutor to state that he did not call any witnesses who had seen him window shopping because the record did not contain evidence that there were identifiable persons who could testify that he was window shopping as he said when the burglary was committed. Blige was concerned with counsel making arguments regarding facts not in evidence. There, the Supreme Court of Georgia held in part that a foundation was required for the prosecutor’s argument that the defendant would have called a fingerprint expert if the expert’s testing had been favorable to him. It does not appear that the record contained evidence that the defendant had actually retained an expert witness to analyze fingerprint materials. Nevertheless, the court found that the statement was proper as being only a comment on the defense’s failure to rebut the State’s fingerprint evidence.

So long as it does not comment on the failure of the defendant to testify, the prosecution may properly argue that its evidence of the defendant’s guilt has not been rebutted or contradicted. Case law also reflects that when the defendant testifies to the existence of a witness who has knowledge of material and relevant facts and that person does not testify at trial, the prosecution may comment on the defendant’s failure to produce that witness.

“ In passing on a motion for mistrial because of an improper statement of a prosecutor, the trial judge may take such action as in his judgment will prevent harm to the defendant, and a new trial will not be granted unless it is clear that such action failed to eliminate the statement from consideration by the jury. [Cits.]’ ” Here, the trial judge specifically instructed the jury to disregard the disputed argument and asked the prosecutor to move on to a different matter. Even if we assume that the disputed argument was impermissible, we cannot say that the judge’s actions were clearly inadequate to prevent harm from ensuing to Peek. Thus, we find no error on this ground and deny Peek’s motion for reconsideration.

Decided November 8, 2000

Reconsideration denied December 14, 2000.

Robert E. Surrency, for appellant.

Fredric D. Bright, District Attorney, Wilson B. Mitcham, Jr., Assistant District Attorney, for appellee.

Motion for reconsideration denied.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Citations and punctuation omitted.) Turner v. State, 223 Ga. App. 448, 449 (1) (a) (477 SE2d 847) (1996).

       OCGA § 16-7-1.

       See OCGA § 24-4-6.

       See Jackson v. State, 236 Ga. App. 260, 261-262 (511 SE2d 615) (1999).

        Anderson v. State, 236 Ga. App. 679, 685 (7) (513 SE2d 235) (1999); Yarbrough v. State, 241 Ga. App. 777, 780 (3) (527 SE2d 628) (2000).

       Neither jury selection nor the hearing on Peek’s motion for new trial was transcribed.

        Sirmans v. State, 244 Ga. App. 252, 256 (4) (534 SE2d 862) (2000).

        Chastain v. State, 237 Ga. App. 640 (516 SE2d 362) (1999).

       See generally Felix v. State, 271 Ga. 534 (523 SE2d 1) (1999).

       263 Ga. 244 (430 SE2d 761) (1993).

       Id. at 245 (2).

       Id.

       Id. at 244-245 (1).

       An argument is considered an improper comment on the defendant’s failure to testify if the manifest intent of the prosecutor’s statement was to comment on the defendant’s failure to testify or if the character of the statement was such that the jury would naturally and necessarily take it as a comment on the defendant’s failure to testify. Ranger v. State, 249 Ga. 315, 319 (3) (290 SE2d 63) (1982).

        Elam v. State, 211 Ga. App. 739, 741 (3) (440 SE2d 511) (1994).

        Morgan v. State, 267 Ga. 203, 206 (3) (476 SE2d 747) (1996).

        Chancey v. State, 256 Ga. 415, 435 (10) (349 SE2d 717) (1986).

       The judge would not comment on whether the law allowed the prosecutor to make the disputed argument.

       See generally Chancey, supra (curative instruction found sufficient under circumstances to protect appellant from prejudicial effect of improper argument).


source: Caselaw Access Project

author: Smith, Presiding Judge. Phipps, Judge,

license: Public Domain

text:
    A00A1069.
    VAUGHN v. THE STATE.
    (543 SE2d 429)
   Smith, Presiding Judge.

Jackie Vaughn appeals his convictions for possession of cocaine with intent to distribute and obstruction of a law enforcement officer. He challenges the trial court’s denials of his motion to suppress and his motion to recuse the trial judge. We find no error in the trial court’s rulings on these issues, and we affirm.

1. We first address Vaughn’s contention that the trial court erroneously denied his motion to suppress. When reviewing a trial court’s decision on a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment of the trial court, and we will not disturb the trial court’s findings on disputed facts and credibility unless those findings are clearly erroneous. Dickson v. State, 241 Ga. App. 575 (527 SE2d 246) (1999). So viewing the evidence presented to the trial court, the record shows that on the night of February 1, 1998, Officers Chris Webster and Brad White of the Lamar County Sheriff’s Department patrolled the area of Tenth Street in Bamesville because the sheriff had received complaints about drug activity in the area. Tenth Street is a short, narrow, heavily traveled, dimly lit, dead-end street. When the officers turned onto the street, they saw a small car parked in the middle of the street with its lights off. As the officers drove toward the car, they saw a man walk from an alleyway between two houses and approach the car. From a distance of approximately 200 yards, they saw the man lean against the car, place his arm on the windowsill, and put his right hand inside the car. According to Webster, while the patrol car was traveling slowly down the street, the man “looked up and [saw] the patrol car and immediately stood up, turned around and stuck his hand in his pocket and started walking away.”

After stopping the patrol car, White went to speak with the driver of the vehicle, and Webster “confronted” Vaughn, whom he had recognized when Vaughn turned away from the parked car. Webster called out, “Jackie, let me talk to you for a minute.” According to Webster, Vaughn did not want to talk to him, “ignored everything [Webster] asked him,” kept walking, and asked only, “ ‘Chris, why are you messing with me?’ ” Webster told Vaughn to stop and turn around and explain what he had been doing at the car. When Vaughn turned around, he had his hand in his pocket. At least twice, Webster asked Vaughn to remove his hand from his pocket. Each time, Vaughn complied with the order, but only briefly. He would say, “I ain’t got nothing in my hand,” and put it back in his pocket. It appeared to Webster that Vaughn was putting his hand in his pocket “to gain control of something.”

Webster told Vaughn that he was going to pat him down to make sure that he did not have any weapons. He called White over to assist him because Vaughn had demonstrated that he did not wish to cooperate with the order to keep his hands visible. When the officers attempted to frisk Vaughn, he pushed and shoved and fought with them. After a lengthy struggle in which Vaughn was pepper-sprayed twice, Vaughn was subdued and arrested for obstruction. In a search incident to the arrest, Webster found in Vaughn’s right pocket a crack pipe and a Newport cigarette packet containing nine individual bags of cocaine.

The trial court denied Vaughn’s motion to suppress because it determined that “Webster had a reasonable, articulable suspicion for stopping [Vaughn], had a right to pat him down because of his conduct and that thereafter, [Vaughn] committed a criminal offense upon [Webster], which subjected him to arrest and search.”

Vaughn contends this ruling was erroneous, arguing that Webster and White had no objective and particularized basis for suspecting that he was involved in any criminal activity. We do not agree. The sheriff’s office had received a number of calls concerning suspected drug activity in the area, and Webster and White saw a car stopped in the middle of a heavily traveled, dimly lit, dead-end street, with Vaughn leaning into the car and reaching his hand into it. Then, after Vaughn saw the police, but before the patrol car even stopped, he immediately placed his hand into his pocket and began walking away. Under the totality of the circumstances here, we conclude that “[tjhis constituted the observation of suspicious activity ... in an area known for drug transactions. Taken together, these observations constituted a founded suspicion sufficient to justify a brief investigatory stop. [Cits.]” Jackson v. State, 191 Ga. App. 439, 440 (382 SE2d 177) (1989). See also Foster v. State, 208 Ga. App. 699 (431 SE2d 400) (1993). The State showed that Webster’s suspicion of criminal activity was justified by specific articulable facts, id., and the trial court did not err in denying his motion to suppress.

2. Vaughn moved to recuse the trial judge based upon rulings and actions taken by the same trial judge in a 1994-1995 case, in which Vaughn and numerous relatives were charged with drug offenses. Vaughn contends that in the previous case the judge demonstrated bias against him in the following ways: (1) by not sanctioning a defense attorney who had released confidential wiretap documents to the press; (2) by not reporting the attorney to the State Bar; (3) by not taking additional measures to prevent violation of the court’s confidentiality order; (4) by not disclosing prior to a hearing on a motion to suppress the documents that he had been informed that the attorney was the source of the leak to the press; (5) by not limiting the media’s access to the hearings; (6) by not passing a motion for recusal to another judge for decision; (7) by denying Vaughn’s brother’s motion to admit a custodial statement at a Jackson-Denno hearing without tendering it; and (8) by allowing 39 days to pass before granting Vaughn’s motion to be discharged and acquitted for failure to provide him a speedy trial.

Alleged bias requiring recusal “must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” (Citations and punctuation omitted.) Birt v. State, 256 Ga. 483, 485 (4) (350 SE2d 241) (1986). Furthermore, any alleged bias “must be of such a nature and intensity to prevent the defendant from obtaining a trial uninfluenced by the court’s prejudgment.” (Citation and punctuation omitted.) Id. at 486. After consideration of Vaughn’s claim, we find no evidence of a bias that would prevent him from receiving a fair trial in this case, a trial uninfluenced by prejudgment of the court. We therefore find no abuse of discretion in the denial of Vaughn’s motion to recuse. See Central of Ga. R. Co. v. Lightsey, 198 Ga. App. 59, 60 (1) (400 SE2d 652) (1990) (abuse of discretion standard).

Judgment affirmed.

Johnson, C. J., Pope, P. J., Andrews, P. J., and Mikell, J, concur. Miller, J., concurs in the judgment only. Phipps, J., concurs in part and dissents in part.

Phipps, Judge,

concurring in part and dissenting in part.

I fully concur with the holding in Division 2, because the record does not demonstrate bias sufficient to require recusal of the trial judge. I respectfully dissent to the holding in Division 1, because I would find that the stop effected upon Vaughn was illegal.

The facts of this case do not give rise to the reasonable, articulable suspicion of criminal conduct which is necessary to justify a Terry stop. Webster’s description of Vaughn’s conduct before the stop was that he walked to the car, leaned against it, put his arm on the windowsill, placed his right hand inside the car, and, upon seeing the police car, immediately stood up, put his hand in his pocket, and walked away.

These facts are no more compelling than those this court and the Supreme Court of Georgia found insufficient in Chinnis v. State and Hughes v. State, respectively. In Chinnis, at 2:00 a.m. in a high crime area of an African-American neighborhood, a police officer observed an African-American man leaning into the passenger’s window of a pickup truck that was occupied by two white men. When the officer’s car approached, the man stepped away from the truck and walked toward an apartment building. Subsequently, the officer stopped the truck and saw cocaine lying on the front seat. This court held that the stop was illegal because the officer lacked an objective basis for stopping the truck. The court noted that the officer “did not actually see a drug transaction take place.”

In Hughes, an officer testified that at around 3:00 a.m. in a high crime, high drug activity area of an African-American neighborhood, he saw a white man drive slowly, pick up an African-American man at a corner where drug transactions were known to occur, drive circuitously through the neighborhood, and return to the area where the passenger had been picked up. The officer testified that this was a common method for drug transactions in the area and that, in his experience, most Caucasians who came into the area were looking for drugs or prostitutes. The officer stopped the vehicle. Noting that the officer had observed no hand-to-hand contact or attempted exchange of items between the men, the Supreme Court held that the officer lacked reasonable, articulable suspicion for the stop.

As in Chinnis and Hughes, there is no testimony here that the officers saw any hand-to-hand contact or any appearance of an exchange between Vaughn and the person inside the vehicle. In the absence of that, there was nothing about Vaughn’s behavior that indicated that criminal activity was afoot. Webster had not seen Vaughn do anything which authorized him to stop Vaughn or require him to explain his behavior.

At the most, Vaughn’s behavior justified the officers in continuing to observe him closely or in attempting to initiate a noncoercive encounter with him. But the record clearly indicates that this stop did not occur in such a manner that “a reasonable person would [have felt] free to disregard [Webster] and go about his business.”

The majority relies on Jackson v. State and Foster v. State. Foster is distinguishable. Though the court stated in Foster that an officer’s stop of Foster was justified under the Terry standard, it does not appear that a Terry stop occurred in that case. The officer merely pulled his vehicle alongside Foster, who was rapidly walking down the street, and asked to speak to him. Foster said he had not done anything, dropped a bag containing drugs, and ran. “Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual... as long as [they] do not convey a message that compliance with their requests is required.”

In Jackson, police “ ‘had received a tremendous number of calls . . . about drug violations that were taking place’ ” on the specific street where Jackson was found seated in his truck conversing with a pedestrian. The officer testified that when he approached, “[Jackson] immediately pulled his hands down and reached toward the floorboard as if to hide something.” Jackson’s actions appear to have been more remarkable than Vaughn’s. Moreover, to the extent that Jackson can be read as authority for the proposition that conduct such as Vaughn’s authorized the police to stop him, it should be disapproved. That reading allows for encroachment upon the basic freedoms of those who live in high crime areas. Therefore, I disagree with the majority’s reliance upon Jackson as authority for the proposition that Vaughn’s conduct authorized the police to stop him.

Decided December 1, 2000

Reconsideration denied December 15, 2000.

Lynn Wilson, for appellant.

Richard G. Milam, District Attorney, Paul E. Hemmann, Assistant District Attorney, for appellee.

This case is particularly disturbing because it is clear that Vaughn would not have been stopped had he been in a different part of town. At the suppression hearing, Webster testified that Vaughn’s conduct was suspicious because it occurred in the Tenth Street area, but that “[i]f we had been in the Giant Mart parking lot, no, I probably wouldn’t have thought that.” By affirming this case, what is this court saying about the freedom of persons who live in “high crime” areas?

Most of our cities and towns have “high crime, high drug activity” areas. Most of the people who live in these areas are as law-abiding as those who live far away. Is it particularly suspicious for them to be out at night, approach cars, lean on them, put their arms on the windowsills, place their hands in the cars, and walk away with their hands in their pockets when the police approach? It is not. They ought to be free to move about their neighborhood without having to explain their legal behavior. In America, common, everyday, legal conduct should never be used to justify a criminal investigation — not even a Terry stop — in any community. Often we are blinded to Fourth Amendment violations by the fruits of the search. In our zeal to solve the drug problem, however, if we forsake the protections of the Fourth Amendment, we will lose more than we gain.

The noble goal of curtailing the drug problem cannot justify law enforcement means which run afoul of the constitutionally protected right to be free from unreasonable searches and seizures. Even in a high crime, high drug activity area, persons have a right to walk to a car at 3:00 a.m., lean on it, talk to people inside it, and walk away with their hands in their pockets when they see a police car, without being suspected of criminal activity and subjected to an “investigatory stop.”

I would reverse the denial of the motion to suppress.

       See Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968).

       240 Ga. App. 518-519 (1) (523 SE2d 924) (1999).

       269 Ga. 258-259 (497 SE2d 790) (1998).

       240 Ga. App. at 519-520.

       Id. at 519.

       269 Ga. at 260-261.

       See id. at 261.

       (Punctuation omitted.) Florida v. Bostick, 501 U. S. 429, 434 (111 SC 2382, 115 LE2d 389) (1991) (quoting California v. Hodari D., 499 U. S. 621, 628 (111 SC 1547, 113 LE2d 690) (1991)); see also United States v. Mendenhall, 446 U. S. 544, 554 (100 SC 1870, 64 LE2d 497) (1980).

       191 Ga. App. 439, 440 (1) (382 SE2d 177) (1989).

       208 Ga. App. 699 (1) (431 SE2d 400) (1993).

       (Punctuation omitted.) Pace v. State, 219 Ga. App. 583, 586 (466 SE2d 254) (1995) (quoting Florida v. Bostick, supra, 501 U. S. at 434-435).

       191 Ga. App. at 440.

       See City of Indianapolis v. Edmond, 531 U. S. 32 (121 SC 447, 148 LE2d 333) (2000).


author: Phipps, Judge.

text:
    A00A1199.
    PEAKE v. THE STATE.
    (545 SE2d 309)
   Phipps, Judge.

James Peake, Sr. was convicted of burglary, possession of tools for the commission of burglary, possession of a firearm during the commission of a felony, attempting to elude, and two counts of aggravated assault on a police officer. On appeal, Peake raises two issues: (1) whether the trial court improperly commented on the jury’s recharge question and erred in recharging the jury on conspiracy without also recharging on mere presence and mere association; and (2) whether the prosecution violated his right to due process by presenting testimony from a co-defendant that it knew or should have known was perjured. We affirm because we find that the court made no improper comment to the jury and did not err in recharging solely on conspiracy and that the record does not show that the prosecution presented testimony which it knew or should have known was perjured.

Peake’s charges arise out of the burglary of a First Union automated teller machine (ATM) in Cobb County. A Cobb County sheriff’s deputy responded to an alarm at the bank and found Peake sitting in the driver’s seat of a van parked next to the ATM. While the officer was questioning Peake, an accomplice wearing a mask and carrying a satchel opened the van’s side door. The officer saw that the ATM had been opened and drew his weapon. A gunfight ensued, with shots being fired by Peake’s accomplices, Joseph Kenner and Nathan O’Hannon. One bullet struck the officer on his magazine pouch but did not injure him. Peake and O’Hannon fled the scene in the van and were captured after a high-speed chase. Kenner had been shot several times in the gunfight and was arrested at the scene.

At trial, Peake testified that Kenner had told him that he had been contracted to repair the ATM. He said that he did not know Kenner was breaking into it.

1. The court charged the jury on conspiracy at the State’s request and on mere presence and mere association at Peake’s request. During its deliberations, the jury sent a note to the judge which stated, “Question: The proper wording on the law in reference to the acts of one are the acts of all.” Believing that the question referred to a particular passage in the conspiracy instruction, the judge responded to the jury’s question by rereading the instruction on conspiracy, which included the following:

Where persons associate themselves in an unlawful enterprise, any act done to further the unlawful enterprise by any party to the conspiracy is in legal contemplation the act of them all. However, each is responsible for the acts of others only insofar as such acts are naturally or necessarily done to further the conspiracy.

Peake asserts that by rereading only the instruction on conspiracy, the court overemphasized it and expressed an opinion that Peake was not merely present at the scene or merely associated with his co-defendants.

Where a jury, which has been fully and properly charged, requests a recharge on a specific question, it is within the discretion of the trial court whether to recharge entirely or to recharge only on the specific question. [Cits.] It is not error to recharge only on the specific question so long as the recharge “ ‘taken alone (does not) leave an erroneous impression in the minds of the jury.’ ” [Cit.]

“To determine whether a recharge is erroneous, we examine the charge as a whole, including both the initial charge and the recharge. [Cit.]”

Here, the judge instructed the jury to consider the entire charge that had been given to it earlier and stated that the recharge was not intended to emphasize the charge on conspiracy. The judge stated that he was rereading only that charge because he believed the jury’s question pertained only to that charge. He added that he would be willing to reread any portion of the charge or the entire charge if the jury wished. After rereading the conspiracy instruction, the judge asked the foreman if the recharge had answered the jury’s question. He responded that it had.

We conclude that the recharge was proper and that it did not overemphasize the State’s theory of the case, did not contain a comment on the evidence, and did not leave an erroneous impression in the minds of the jurors.

2. Peake contends that the State knowingly introduced peijured testimony from Kenner. Kenner testified that he and Peake had been forced by O’Hannon to participate in the burglary. He offered little explanation of how O’Hannon had forced them to participate. He testified that the following occurred. Several days before the burglary, he, O’Hannon, and Peake had gone to several ATMs and had discussed robbing one. On the day in question, Peake acted as driver and lookout for the criminal enterprise. Peake was armed with a .45 caliber pistol and communicated with Kenner and O’Hannon while they were inside the ATM. Peake informed them of how much time they had spent inside the ATM, told them when the officer arrived, and then told them that the officer was “getting on the radio.”

Peake contends that Kenner’s testimony was fraught with internal inconsistencies and was contradicted by physical evidence and by the testimony of other State’s witnesses, principally that of the officer who discovered the burglary. He contends that Kenner’s pretrial statements had put the State on notice that Kenner’s testimony would be contradictory and inconsistent.

A conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. [Cits.] If the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury, such a conviction may require reversal under the above standard. [Cit.]

The record does not demonstrate that the State allowed Kenner to give testimony material to Peake’s case which it knew or should have known was perjured. The record does indicate that Kenner’s testimony regarding his own role in the burglary was inconsistent with other evidence presented by the State and was implausible to some degree. However, the issue in this trial was Peake’s culpability, not Kenner’s. Nothing in the record clearly demonstrates that Kenner was untruthful about Peake’s knowledge of the conspiracy and participation in it. We cannot say that Kenner’s testimony “in every material part [was] purest fabrication.”

Certainly, any fabrication in Kenner’s testimony was relevant to his credibility. But, “[t]his is not a situation wherein the [S]tate allowed a witness to give false testimony which defense counsel had no means of correcting.” Peake does not claim that the State had failed to turn over materials or evidence through which he could have shown the jury any possible untruth in Kenner’s testimony.

We find no merit in this contention.

Decided November 28, 2000

Reconsideration denied December 15, 2000

James S. Lewis, for appellant.

Patrick H. Head, District Attorney, Maria B. Golick, Thomas A. Cole, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson, C. J., and Smith, P. J, concur.

        Cloyd v. State, 237 Ga. App. 608, 610 (3) (516 SE2d 103) (1999).

       Id.

       See id.

       (Punctuation omitted.) Mondy v. State, 229 Ga. App. 311, 313 (2) (494 SE2d 176) (1997).

       See Kitchens v. State, 160 Ga. App. 492, 493 (1) (287 SE2d 316) (1981) (materiality standard).

        See Allen v. State, 222 Ga. App. 492 (474 SE2d 698) (1996) (trial court properly denied motion to strike testimony of accomplices who gave inconsistent accounts of burglary, each minimizing their role).

        Fugitt v. State, 251 Ga. 451, 452 (1) (307 SE2d 471) (1983).

        Gober v. State, 203 Ga. App. 5, 7 (4) (416 SE2d 292) (1992).

       See id.


author: Per curiam. Pope, Presiding Judge, Miller, Judge,

text:
    A00A1398, A00A1399.
    S & A INDUSTRIES, INC. v. BANK ATLANTA et al.; and vice versa.
    (543 SE2d 743)
   Per curiam.

S & A Industries, Inc. filed suit against Bank Atlanta in connection with the bank’s attempts to collect on a line of credit opened by S & A. Both parties moved for summary judgment. The trial court denied S & A’s motion and granted in part and denied in part the bank’s motion. We now consider the parties’ cross-appeals in response to that order.

S & A is a Georgia corporation engaged in hotel renovations. Daoud Shakkour is the president of the company and the third-party defendant in this action. In early 1996, Shakkour agreed to loan $20,000 to David Wade, a business acquaintance, to enable him to meet the payroll at his company, Wade Electric Supply Company, Inc. Wade was the president and sole shareholder of Wade Electric. Shakkour gave Wade a check without requiring any written loan agreement, without requiring interest and without obtaining any information regarding Wade Electric’s financial situation.

At that time, Wade Electric owed money to First Capital Bank and was in the process of negotiating with Bank Atlanta for a replacement loan of $400,000. The loan was to be guaranteed by the U. S. Small Business Administration. In the course of these negotiations, it was determined that Wade Electric needed an infusion of $300,000 to qualify for the SBA loan. Shakkour was approached to put up the necessary money for Wade Electric. Shakkour had previously written a letter to First Capital Bank stating that he intended to make a $300,000 capital investment in Wade’s company, although at deposition he stated that he signed the letter in blank.

On February 21, 1996, Bank Atlanta issued a loan commitment letter, agreeing to make Wade Electric a $400,000 SBA loan. The loan commitment was expressly contingent, however, on the receipt by Bank Atlanta of “satisfactory evidence that not less than $300,000 cash has been injected into the business as an equity injection from Daoud Shakkour, a Standby Creditor.” To facilitate this transaction, Wade Electric opened an account at Bank Atlanta. And in that regard, the company provided Bank Atlanta with a corporate resolution showing that Wade and Shakkour, along with two other individuals, were authorized to withdraw funds from the account.

At around the same time, S & A had applied for and received a commitment from Bank Atlanta to increase the company’s line of credit from $200,000 to $400,000. On March 6,1996, at the closing on the increased line of credit, Shakkour signed, on behalf of S & A, a promissory note in the amount of $402,000. He also signed a personal guaranty and gave the bank a security deed on the property he owned at 141 Sams Street in Decatur.

Subsequently $300,000 was drawn from S & A’s line of credit and deposited into Wade Electric’s account at Bank Atlanta. Bank Atlanta contends that the funds were withdrawn at Shakkour’s authorization with the intention of making a capital investment in Wade Electric so that it could qualify for the SBA loan. But S & A contends that Shakkour made that authorization only because Purdy Richardson, president of Bank Atlanta, assured him that he would get the money back at the closing on Wade Electric’s SBA loan. In his deposition, Shakkour testified that shortly after the closing on S & A’s loan, he met with Wade and Richardson to discuss the SBA loan. He states that he learned for the first time at this meeting that Wade Electric required $300,000 to close the loan. Although initially reluctant, Shakkour states that he agreed to the loan because Richardson told him that the money was going to stay in the bank and merely be used to show that Wade Electric had the necessary funds available to it at the time of closing. According to Shakkour, Richardson said that after the closing, the funds would be returned to S & A’s account. Richardson denies making any such representations.

Wade Electric’s SBA loan closed on March 21,1996. The previous day, Shakkour had signed the SBA-required standby agreement, acknowledging that the $300,000 was a loan and agreeing that he would not attempt to collect on this loan, with certain exceptions, without the prior written consent of Bank Atlanta.

Shortly after the loan closed, Wade Electric withdrew the $300,000 from its Bank Atlanta account in order to pay off certain outstanding corporate debts. Subsequently, Wade Electric filed a bankruptcy petition and obtained a discharge of its corporate debt under Chapter 7. Despite the fact that Shakkour obtained a promissory note from Wade Electric two months earlier on all monies loaned, neither Shakkour nor S & A asserted their interest in the bankruptcy proceedings.

Meanwhile, interest payments began to accrue on the S & A line of credit beginning June 6, 1996. And on June 14, Bank Atlanta began sending S & A delinquent payment notices. In response, S & A made 11 monthly payments of interest totaling $29,697.75 between June 1996 and March 1997. None of the payments were made under objection or protest. The line of credit matured on March 6,1997, but S & A and Bank Atlanta entered into a modification agreement whereby the maturity date was extended until June 30, 1997. Nevertheless, S & A failed to repay the outstanding balance due on the note and subsequently filed this action. Bank Atlanta, in turn, asserted a counterclaim and filed a third-party complaint against Shakkour. S & A appeals from the denial of its motion for summary judgment, and Bank Atlanta appeals from the partial denial of its motion.

Case No. A00A1398

We first address S & A’s appeal and must note initially that S & A has failed to comply with Court of Appeals Rule 27 (c) (1), which requires that the sequence of argument in a brief follow the enumerations of error and be numbered accordingly. S & A enumerates ten errors, but the sections of its argument are not numbered, and many . of the headings do not directly correlate with the enumerated errors. As we have held:

Rule 27 (c) (1) is more than a mere formality. It is a requirement which this Court imposes to ensure that all enumerations of error are addressed and to facilitate review of each enumeration. By failing to comply with the rule, the appellant has hindered the Court’s review of [its] assertions and has risked the possibility that certain enumerations will not be addressed. Accordingly, to the extent that we are able to discern which of the enumerations are supported in the brief by citation of authority or argument, we will address those enumerations. Pursuant to Court of Appeals Rule 27 (c) (2), however, all other enumerations will be treated as abandoned.

(Citation and punctuation omitted.) Desmond v. Troncalli Mitsubishi, 243 Ga. App. 71-72 (532 SE2d 463) (2000).

1. S & A contends that the terms of the note were usurious and that the trial court erred in denying its motion for summary judgment on this issue. We reject that contention for the reasons set forth in the special concurrences below.

2. S & A also argues that the trial court erred in finding that the Statute of Frauds did not apply to the oral authorization to withdraw $300,000 from its line of credit. S & A asserts that the oral withdrawal was a commitment to lend money and thus was required to be in writing under the Statute of Frauds. OCGA § 13-5-30 (7). The trial court found, however, that the transaction at issue in the case was the loan by Bank Atlanta to S & A and that transaction was evidenced by the written promissory note signed by Shakkour on behalf of his corporation. Therefore, the trial court reasoned, no violation of the Statute of Frauds occurred. We agree.

When Shakkour verbally authorized the withdrawal of $300,000 from S & As line of credit, he simply executed the loan to which the bank had already contractually agreed and which was controlled by the parties’ promissory note. It is the enforcement of that note which Bank Atlanta seeks and which S & A seeks to avoid. And it is undisputed that the note meets the requirements of the Statute of Frauds. OCGA § 13-5-30 (7).

Nothing in that promissory note required that authorizations for withdrawals be in writing. And Shakkour has pointed to no other document requiring such a written authorization. In fact, the record shows that both Shakkour and his business partner had given oral authorization for withdrawals from the account, both prior to and after the $300,000 withdrawal at issue in this case.

Nor does the lack of any contemporaneous written agreement evidencing the transfer of $300,000 from Shakkour to Wade Electric affect the validity of the S & A promissory note. Although in the absence of such a writing, Shakkour may have had difficulty enforcing Wade Electric’s obligation to repay that amount, it has no effect on S & A’s obligations under the note to Bank Atlanta.

3. S & A also contends that the trial court erred in holding that evidence of Richardson’s representations, which Shakkour claims induced him to authorize the $300,000 withdrawal, were inadmissible under the parol evidence rule. S & A asserts that because the authorization to withdraw the $300,000 was oral, the parol evidence rule does not bar such evidence.

But in making this argument, S & A is, in effect, simply attempting to avoid its obligations under the promissory note. To the extent that S & A is relying on these conversations “to add to, take from or vary” the terms of its promissory note with Bank Atlanta, it is barred by the parol evidence rule. OCGA § 13-2-2 (1). See, e.g., Devin Lamplighter, Ltd. v. American Gen. Finance, 206 Ga. App. 747, 749 (2) (426 SE2d 645) (1992) (parol evidence will not be used to impose conditions which are not apparent from the face of a note showing an unconditional promise); Ga. Higher Ed. Assistance Corp. v. Geldon, 187 Ga. App. 798 (371 SE2d 449) (1988) (“It is axiomatic that parol evidence cannot be admitted to vary or alter the terms of a promissory note.”).

It is true that S & A asserted a claim of fraud and the parol evidence rule applies only in the absence of fraud, mistake or accident. See, e.g., Vandegriff v. Hamilton, 238 Ga. App. 603, 604 (519 SE2d 702) (1999). But the trial court granted Bank Atlanta’s motion for summary judgment on S & A’s fraud claim. Although S & A enumerated this ruling as error, it failed to support this enumeration with any argument or citation to authority, and it is deemed abandoned under Court of Appeals Rule 27 (c). See Desmond v. Troncalli Mitsubishi, 243 Ga. App. 71.

Therefore, any oral representations by the bank with regard to the withdrawal cannot be considered to alter the terms of the note. And the trial court did consider evidence of the conversation in ruling on S & A’s tort claims, where such evidence was relevant. Therefore, we find no error.

4. S & A further asserts that the trial court erred in granting Bank Atlanta summary judgment on its claim of negligence. S & A asserted that the bank negligently failed to return the $300,000 withdrawal following the closing on Wade Electric’s SBA loan.

We note that to the extent that S & A is asserting a claim for negligent breach of an oral contract, that claim fails:

A defendant’s mere negligent performance of a contractual duty does not create a tort cause of action; rather, a defendant’s breach of a contract may give rise to a tort cause of action only if the defendant has also breached an independent duty created by statute or common law.

(Citation omitted.) Traina Enterprises v. RaceTrac Petroleum, 241 Ga. App. 18, 19-20 (1) (525 SE2d 712) (1999).

Accordingly, in making this argument, S & A relies upon the common law rule regarding voluntary undertakings: “Where one undertakes an act which he has no duty to perform and another reasonably relies upon that undertaking, the act must generally be performed with ordinary and reasonable care. [Cit.]” (Emphasis supplied.) Stelts v. Epperson, 201 Ga. App. 405, 407 (411 SE2d 281) (1981). And this is true even though the undertaking was completely gratuitous and no consideration existed for the promise or undertaking so as to support a contractual claim. Id.

Because this claim was decided on Bank Atlanta’s motion for summary judgment, we must view the evidence with all reasonable inferences and conclusions in favor of S & A. Lamb v. Salvage Disposal Co. &c., 244 Ga. App. 193 (535 SE2d 258) (2000). Therefore, we must assume that Richardson told Shakkour that the $300,000 withdrawal on S & A’s line of credit would be returned at the Wade Electric closing and further assume that this statement is binding upon Bank Atlanta itself.

Even relying upon these assumptions, however, S & A must establish that Shakkour reasonably relied upon Richardson’s statement. But Shakkour signed a corporate resolution that authorized three of Wade Electric’s officers and Shakkour himself to withdraw funds from the Wade Electric bank account. Although Shakkour contends that he does not recall signing the authorization, he does not dispute that his signature appears on the document. And even though Shakkour speculated that he may have signed the document in blank, he must be charged with knowledge of its contents. See Hall v. World Omni Leasing, 209 Ga. App. 115, 117 (2) (433 SE2d 297) (1993). Therefore, at the time Shakkour authorized the withdrawal of $300,000 from the S & A account, he knew the funds were being transferred to the Wade Electric account, even if just for the purposes of the SBA loan. And he knew that Wade Electric could access those funds. Moreover, under that authorization, Shakkour himself had the authority to access the account and, thus presumably, could have obtained the return of the money. Under these circumstances, we hold as a matter of law that Shakkour could not have reasonably relied upon any undertaking or representations made by Richardson on behalf of the bank to return the funds to S & A. See generally Presto v. Sandoz Pharmaceuticals Corp., 226 Ga. App. 547, 549 (1) (487 SE2d 70) (1997).

5. S & A also asserts that the trial court erred in denying its motion for partial summary judgment on Bank Atlanta’s claim for attorney fees.

(a) The company first contends that it should not be held liable for attorney fees because Bank Atlanta failed to give the required notice under OCGA § 13-1-11. But based upon our review of the bank’s August 27, 1997 notice letter, we conclude that the bank substantially complied with the notice provisions of OCGA § 13-1-11. The language of the letter was sufficient to put S & A on notice of the bank’s intent to collect attorney fees under the note and to give S & A the opportunity to pay the debt without incurring such fees. The notice was, therefore, sufficient. See Gen. Elec. Credit Corp. &c. v. Brooks, 242 Ga. 109, 118-119 (249 SE2d 596) (1978).

(b) S & A next asserts that Bank Atlanta’s recovery of attorney fees should be limited to the fees actually incurred up to the statutory maximum of 15 percent of principal and interest. We agree.

OCGA § 13-1-11 (a) (1) provides for the enforcement of attorney fees provisions in promissory notes “up to but not in excess of 15 percent of the principal and interest owing” on the note, provided the note is collected by or through an attorney after maturity. Accordingly, so long as the attorney fee provision of a promissory note does not violate the strictures of OCGA § 13-1-11 (a), it is enforceable. But the statute does not mandate the recovery of 15 percent attorney fees in every case.

Here, S & A agreed that if Bank Atlanta hired an attorney to collect the promissory note, S & A would “pay any fee, not to exceed 15 percent of the principal and interest then owed that [Bank Atlanta incurred], plus court costs. . . .” Under this language, S & A is obligated to pay only attorney fees actually incurred by the bank up to 15 percent of the principal and interest. Therefore, the bank’s maximum recovery for attorney fees is 15 percent, and it must establish that it has actually incurred fees in that amount in order to recover the maximum. But see Rodgers v. First Union Nat. Bank &c., 220 Ga. App. 821, 824 (2) (470 SE2d 246) (1996) (allowing recovery of 15 percent attorney fees where contract so provided).

Therefore, because we find that if Bank Atlanta can establish liability under the promissory note, it would be entitled to recover actual attorney fees incurred up to the 15 percent limit set forth in the note, we hold that the trial court properly denied S & A’s motion for partial summary judgment on this ground.

(c) S & A also contends that Bank Atlanta should be precluded from recovering its attorney fees because to date it has failed to produce documents showing the fees it has incurred. We find no error in the trial court’s failure to grant S & A’s motion on this ground. Prior to the summary judgment order, Bank Atlanta was contending that it was entitled to a flat 15 percent attorney fee without having to prove actual fees incurred. The parties must now proceed in light of our affirmance of the trial court’s order.

Case No. A00A1399

6. Bank Atlanta contends that the trial court erred in failing to address its summary judgment motion as to S & A’s claim for attorney fees under OCGA §§ 13-6-11 and 9-15-14. The bank asks us to reverse the trial court’s order to the extent that it fails to grant its motion for summary judgment on these issues.

The final section of the trial court’s order states that it is addressing “Counts VIII, XVIII, XIX, XX and X” of S & A’s complaint headed, respectively, Statute of Frauds, Lack of Mutuality, Lack of Consideration, Promissory Estoppel and Note Not a Negotiable Instrument. The trial court granted Bank Atlanta’s motion for summary judgment on each of these counts. Then, under the same heading, the order reads: “Upon a thorough review of the record, S & A’s claims of bad faith and for attorneys fees and litigation expenses pursuant to OCGA § 9-15-14 (Counts XXIII and XVI, respectively) are also hereby DENIED.”

This language, therefore, explicitly denies S & A the right to pursue its claims for attorney fees. And although the order does not specifically rule on Bank Atlanta’s motion for summary judgment as to these two counts, the only possible construction to be placed on this language, especially in light of the trial court’s other rulings, is that the trial court intended to grant summary judgment to the bank on S & A’s attorney fees claims. Therefore, no action on the part of this Court is required.

7. Bank Atlanta also contends that the trial court erred in holding that a jury issue existed as to whether Shakkour was authorized to withdraw $300,000 in corporate funds in order to make a personal loan.

Although Shakkour as president of S & A may have had actual or apparent authority to authorize a withdrawal from the corporate account for corporate uses, we agree with the trial court that a jury issue exists as to whether he had authority to withdraw such funds for his own personal use. A question exists as to whether Bank Atlanta was aware that the loan was from Shakkour personally, and thus whether the bank was entitled to rely on Shakkour’s apparent authority to bind the corporation. For example, the bank’s loan commitment to Wade Electric was expressly made contingent upon “satisfactory evidence that not less than $300,000 cash has been injected into the business as an equity injection from Daoud Shakkour, a Standby Creditor.” (Emphasis supplied.) And no evidence exists of a corporate authorization specifically approving the loan of corporate funds to Wade Electric. Thus, we adhere to the rule that “[q]uestions of the existence and extent of an agent’s authority are generally for the triers of fact.” (Citations and punctuation omitted.) Hunter v. Roberts, 199 Ga. App. 318, 319 (2) (404 SE2d 645) (1991).

Similarly, a further jury issue exists as to whether S & A’s later actions served to ratify the withdrawal. See Rains v. Dolphin Mtg. Corp., 241 Ga. App. 611, 614-615 (4) (525 SE2d 370) (1999) (“Whether a ratification occurred is generally a question of fact for the jury. [Cit.]”).

Accordingly, we affirm the trial court’s denial of Bank Atlanta’s motion on this ground.

Judgment affirmed.

Johnson, C. J., Pope, P. J., Andrews, P. J., Blackburn, P. J, Smith, P. J., Ruffin, Eldridge, Barnes, Miller, Ellington, Phipps and Mikell, JJ, concur specially.

Pope, Presiding Judge,

concurring specially.

I concur fully with the per curiam opinion and concur specially with respect to Division 1 because I do not think the terms of this loan are usurious.

OCGA § 7-4-18 (a) sets out the criminal penalty for usury and provides that no loan shall charge “any rate of interest greater than 5 percent per month.” The Supreme Court has held that any loan violating this section is illegal and results in the lender’s forfeiture of interest, but not principal, on the loan. Norris v. Sigler Daisy Corp., 260 Ga. 271, 272 (1) (392 SE2d 242) (1990).

But the criminal usury statute must be read in conjunction with OCGA § 7-4-2, which sets out the legal rate of interest. Under OCGA § 7-4-2 (a) (1) (A), the legal rate of interest of seven percent per annum applies where a rate percent is not established by written contract. And under this subsection, the parties to a loan of more than $3,000 and less than $250,000 are allowed to establish any rate of interest in their contract subject to the usury provisions of OCGA § 7-4-18.

The language of OCGA § 7-4-2 (a) (1) (B), however, provides that parties to a loan of $250,000 or more may establish any rate of interest and does not specifically invoke the limitations of OCGA § 7-4-18. Relying on this omission, the trial court held that OCGA § 7-4-18 does not apply to loans of $250,000 or more and thus did not apply to S & A’s loan in this case.

The prior opinions of this Court are in conflict as to whether the criminal usury statutes apply to loans of $250,000 or more. In at least one case, this Court has applied the criminal usury law to loans exceeding that amount. See First Alliance Bank v. Westover, Inc., 222 Ga. App. 524, 526-527 (474 SE2d 717) (1996) (holding that discount on $1.65 million loan did not render loan usurious). But in Barton v. Marubeni America Corp., 204 Ga. App. 346, 347 (419 SE2d 342) (1992), this Court held, without analysis, that Georgia’s usury provisions did not apply to a note in excess of $2.3 million. See also MOM Corp. v. Chattahoochee Bank, 203 Ga. App. 847 (2) (418 SE2d 74) (1992) (holding interest on loan was not usurious per se, but also noting language of OCGA § 7-4-2 (a) (1) (B)).

A review of the legislative history of these statutes compels the conclusion that loans of $250,000 or more are subject to Georgia’s criminal usury statute. In construing the two Code sections together, I adhere to the primary rule of statutory construction and look to the legislative history to determine the General Assembly’s intent: “In all interpretations of statutes, the courts shall look diligently [to] the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a).

Prior to 1983, in addition to setting the legal rate of interest at seven percent, OCGA § 7-4-2 provided that 10.5 percent would be the maximum rate of interest allowable on consumer loans. Ga. L. 1979, p. 355, § 1. In 1983, OCGA § 7-4-2 was amended to allow lenders on loans of over $3,000 to charge, subject to the usury provisions of OCGA § 7-4-18, “any rate of interest, expressed in simple interest terms as of the date of the evidence of the indebtedness.” Ga. L. 1983, p. 1146, § l. At the same time, OCGA § 7-4-18 was amended to add subsection (c), which provides that “[n]othing contained in Code Section 7-4-2 . . . shall be construed to amend or modify the provisions of this Code section.” Ga. L. 1983, p. 1146, § 5. Thus, these amendments made the two statutes consistent and clarified that the usury provisions applied to all loans covered by OCGA § 7-4-2.

In 1988, OCGA § 7-4-2 was again amended to break subsection (a) (1) into the three current subparts (A), (B) and (C). The preamble of the amendment provides that it was intended, in part, “to provide that the rate of interest established by written contract on transactions of $250,000.00 or more may be expressed in simple interest terms or otherwise.” (Emphasis supplied.) Ga. L. 1988, p. 534. After this amendment, therefore, under subpart (A), parties to loans of more than $3,000 and less than $250,000 must continue to express the interest rate in “simple interest terms as of the date of the evidence of the indebtedness,” while under subpart (B), the interest rate on transactions of $250,000 or more can be expressed in something other than simple interest. Ga. L. 1988, p. 534, § 1. But as the preamble makes clear, nothing in this amendment was intended to remove loans of $250,000 or more from the protections of Georgia’s usury statute. Moreover, when the 1988 revisions were made, the legislature retained the language in OCGA § 7-4-18 stating that nothing in OCGA § 7-4-2 “shall be construed to amend or modify the provisions of this Code section,” indicating that the usury provisions should continue to control. OCGA § 7-4-18 (c).

Thus, while Judge Miller’s special concurrence focuses upon the legislature’s omissions in the 1988 revisions to OCGA § 7-4-2, I am guided by the stated purpose of those revisions. And accordingly, I would hold that OCGA § 7-4-18 applies to the S & A loan and would overrule Barton v. Marubeni America Corp., supra, to the extent that it holds that Georgia’s usury law does not apply to loans of $250,000 or more. And although Judge Miller’s special concurrence invokes stare decisis in upholding Barton, I note that the Barton case has been cited only once on another ground and has never been relied upon for the conclusory statement that the $2.3 million loan in that case was “outside the provisions of Georgia’s usury statute.” 204 Ga. App. at 347. Further, it appears that Barton may not have been heavily relied upon in the business community as neither business entity in this case cited the opinion in its brief.

S & A argues that the trial court erred in calculating whether the interest and charges on the S & A loan were usurious. Under the terms of the parties’ note, interest accrued at two percent above Bank Atlanta’s prime rate, which brought the interest rate to between 10.25 percent and 10.5 percent per annum over the loan term. The note also provided that following the maturity date of March 6, 1997, interest would accrue at a “post maturity” rate of 18 percent per annum, or 1.5 percent per month. The note further provided for a one-time late charge of five percent on any late payments. Bank Atlanta applied this charge to the $320,000 principal balance owing at maturity and assessed S & A a late charge of $16,000.

S & A contends that this five percent late charge, incurred in July 1997 after maturity, was usurious when coupled with the 1.5 percent post-maturity monthly interest rate accruing at that time. The company argues that the two charges amounted to interest of 6.5 percent in that one month, thus exceeding the five percent per month limit of OCGA § 7-4-18.

In determining whether a loan is usurious, the definition of interest under OCGA § 7-4-18 applies. Norris v. Sigler Daisy Corp., 260 Ga. at 272 (2). That section prohibits the payment of interest in excess of five percent per month “either directly or indirectly, by way of commission for advances, discount, exchange, or the purchase of salary or wages; by notarial or other fees; or by any contract, contrivance, or device whatsoever. . . .” OCGA § 7-4-18 (a). Here, the late charge, whether it is considered a “fee” or a “contract, contrivance or device,” was a cost incurred by S & A for the use of the funds loaned by Bank Atlanta. And though the charge was not incurred until after the loan matured, S & A still retained the use of those funds at that time. See generally Williams v. Powell, 214 Ga. App. 216, 218 (2) (447 SE2d 45) (1994) (“Interest is calculated on amounts of which the borrower had use.”). Therefore, the late charge falls within the definition of interest under OCGA § 7-4-18 and must be included in testing the loan terms for usury.

And although S & A argues that we should determine whether the loan was usurious by looking only at the month in which the onetime late charge was assessed, our Supreme Court has rejected a similar argument. In a case involving allegedly usurious front-end points and fees, the Court held that usury must be determined by measuring the total interest paid over the entire loan period:

[(1)] [B]ecause the interest, including front-end points and fees on a fixed-term, fixed-rate loan induces the lender to make the loan for the entire loan period and not for any one month or year, [(2)] because the borrower has the use of the amount loaned for the entire loan period, and [(3)] because the usury penalty applies to the interest for the entire contract, [cits.], it seems reasonable that the loan has to be tested for usury based on interest charged for the entire loan period.

Fleet Finance &c. v. Jones, 263 Ga. 228, 232 (3) (430 SE2d 352) (1993).

Here, (1) the late charge presumably served as an inducement for Bank Atlanta to make the loan over the entire loan term and not in any one month, as it provided additional protection for the bank should S & A not repay the loan in a timely fashion; (2) S & A had the use of the bank’s funds over the entire loan term and retained the use of the funds even after the term expired; and (3) if the note were found usurious, Bank Atlanta would forfeit all interest on the note over the life of the loan as provided under the usury laws. See Norris v. Sigler Daisy Corp., 260 Ga. at 272-274 (1), (4). Therefore, it is rea- . sonable for the loan in this case to be tested for usury based upon interest charged over the entire loan period, and I would reject S & A’s argument that we must look only at the month of July 1997 in determining usury.

S & A argues, however, that the formula for calculating usury laid out by the Supreme Court in Norris and Fleet Finance should not apply here because the late charge was not incurred until after the loan matured and the post-maturity term, with interest accruing at 18 percent, is not defined. Although the late charge was not incurred until the end of the loan, it was a charge anticipated at the beginning of the loan and an inducement for the bank to lend its money. Therefore, the loan could be tested for usury based upon the late charge and the 10.25 to 10.5 percent interest paid over the 14-month modified loan term. Alternatively, the late charge could be considered in conjunction with the total interest paid, both pre-maturity and post-maturity, and measured over the entire period during which S & A retained use of the bank’s money. See generally Williams v. Powell, 214 Ga. App. at 218; First Alliance Bank v. Westover, Inc., 222 Ga. App. at 527.

But it is not necessary to decide what the appropriate term would be in this case because testing the interest over any period longer than one month would bring it under the rate prohibited by OCGA § 7-4-18. Accordingly, Bank Atlanta’s loan to S & A was not usurious, and thus the trial court’s denial of S & A’s motion for summary judgment on this issue should be affirmed.

I am authorized to state that Chief Judge Johnson, Presiding Judge Blackburn, Judge Ruffin, Judge Eldridge and Judge Ellington join in this special concurrence.

Miller, Judge,

concurring specially.

I join fully in the per curiam opinion and concur specially with respect to Division 1 because, as stated in Barton v. Marubeni America Corp., 204 Ga. App. 346, 347 (419 SE2d 342) (1992), loans where the principal amount is $250,000 or more are “outside the provisions of Georgia’s usury statute. See OCGA § 7-4-2 (a) (1) (B).”

Presiding Judge Pope’s special concurrence argues that we should overrule Barton. This argument is unpersuasive for four reasons. First, Barton was correct. The drafters of OCGA § 7-4-2 (a) (1) (B) in 1988 very carefully did not reference the existing usury statute (OCGA § 7-4-18, enacted initially in 1908) as an exception to the language that loans over $250,000 could specify whatever rate they wanted. Thus, they did not intend for the existing usury statute to apply, and to the extent the usury statute had applied to such large loans, it was implicitly repealed, despite the language contained in OCGA § 7-4-18 (c). This intent is plainly clear, for those same drafters in OCGA § 7-4-2 (a) (1) (A), which concerns smaller loans, expressly referenced OCGA § 7-4-18 as an exception to the language that such loans could specify any interest rate. If the drafters had intended for the usury statute to apply to the larger loans covered by subpart (B), then they would have used the same exception language that they were using in subpart (A).

The one later case cited by Presiding Judge Pope’s special concurrence as implying otherwise ignores Barton and does not address the meaning of the language of OCGA § 7-4-2 (a) (1) (B). See First Alliance Bank v. Westover, Inc., 222 Ga. App. 524 (474 SE2d 717) (1996). Eather, First Alliance simply assumes without discussion that the usury statute applies to the large loan at issue and then concludes that the loan was nevertheless not usurious. Since First Alliance makes no effort to overrule or even discuss Barton, and since First Alliance does not even find the loan usurious under the statute, First Alliance’s implied assumption that the usury statute applies to large loans is dicta, and Barton is still controlling precedent on its earlier express holding to the contrary that was essential to its conclusion.

Second, the apparent and logical policy behind the drafters making this distinction is that when this much money is involved, then both parties to the transaction can be presumed to be sophisticated entities with bargaining power that can negotiate whatever interest rate they want to and that the debtor is not an unsuspecting, powerless consumer that needs the protection of the usury law. Cf. Hooks v. Cobb Center &c., 241 Ga. App. 305, 308 (527 SE2d 566) (1999) (sophisticated businessman had less reason to complain about adequacy of consideration). The legislature obviously concluded that if an entity wants to borrow such a large amount of money, then it and the lender should work out the market value of interest, without the meddling interference of government regulation.

Third, reversing the case law that has been outstanding for eight years would be demoralizing to the lending industry, which has faithfully relied on this clear interpretation in making these large loans. Now suddenly, without any warning, Presiding Judge Pope’s special concurrence would have lenders blindsided by a reversal of a clearly understood interpretation, and the loans for millions of dollars they have lent using higher interest rates would now come into question. The Supreme Court of Georgia recently reiterated the need to adhere to precedent so as to promote the rule of law and its predictability.

The application of the doctrine of stare decisis is essential to the performance of a well-ordered system of jurisprudence. In most instances, it is of more practical utility to have the law settled and to let it remain so, than to open it up to new constructions, as the personnel of the court may change, even though grave doubt may arise as to the correctness of the interpretation originally given to it.

(Citations omitted.) Etkind v. Suarez, 271 Ga. 352, 357 (5) (519 SE2d 210) (1999).

Fourth, the doctrine of stare decisis applies even more strongly in matters of statutory construction.

Decided December 1, 2000

Reconsideration denied December 15, 2000

Smith, White, Sharma & Halpern, Larry J. White, Laurence H. Margolis, for appellant.

Schreeder, Wheeler & Flint, John A. Christy, Timothy C. Batten, for appellees.

David R. Wade, pro se.

“Even those who regard ‘stare decisis’ with something less than enthusiasm recognize that the principle has even greater weight where the precedent relates to interpretation of a statute.” A reinterpretation of a statute after the General Assembly’s implicit acceptance of the original interpretation would constitute a judicial usurpation of the legislative function.

(Citations omitted.) Etkind, supra, 271 Ga. at 358 (5).

The Georgia General Assembly has been aware of Barton’s interpretation of the statute for over eight years and has done nothing to amend the statute to overrule that interpretation. In fact, in 1997 the General Assembly amended subsection (c) of this Code section to address some errors and omissions, but did nothing to change the language of subsection (a) (1) (B). Ga. L. 1997, p. 143, § 7 (20). The General Assembly obviously agrees with the longstanding interpretation. “If this Court has been wrong from the beginning, on this subject, let the legislative power be invoked to prescribe a new rule for the future”; otherwise, we must adhere to the rule long applied by our courts and so well known to the legal profession. Etkind, supra, 271 Ga. at 358 (5).

For these four reasons I must concur specially separately as to Division 1.

I am authorized to state that Presiding Judge Andrews, Presiding Judge Smith, Judge Barnes, Judge Phipps and Judge Mikell join in this special concurrence.

       S & A also named David Wade, president of Wade Electric Supply Company, Inc., as a defendant in this action.

       S & A had furnished Bank Atlanta with a corporate resolution authorizing the increase in the line of credit from $200,000 to $400,000 and giving Shakkour authority to sign a $402,000 note binding the corporation.

       S & A asserts that the trial court erroneously describes this transfer as a capital investment. But whether the transaction is termed a loan or a capital investment has no effect on the terms of the underlying promissory note.

       Moreover, the promissory note itself provides that any modifications of the agreement must be in writing.

       A corollary to that axiom is that there is no bar to evidence that does not vary or alter the terms of the note. Therefore, the parol evidence did not bar evidence of the oral authorization itself because the authorization did not vary or alter the terms of the parties’ note, but rather effectuated those terms.

       In this same amendment, a 16 percent interest cap was placed on all loans involving $3,000 or less. Ga. L. 1983, p. 1146, § 1.

       This balance also reflects three additional draws on the line of credit — $3,642.30 on March 6, 1996, to cover closing costs on the loan; $40,000 in April 1996; and $75,000 on December 20, 1996 — and two principal reduction payments: $20,000 on October 29, 1996, and $78,642.30 on January 23,1997.