author: Bethel, Judge.

text:
    A17A0381, A17A1067.
    SHOOTER ALLEY, INC. v. CITY OF DORAVILLE (two cases).
    (800 SE2d 588)
   Bethel, Judge.

Shooter Alley, Inc., appeals from a contempt order requiring it to pay $17,296.53 in attorney fees and litigation costs under OCGA § 9-15-14. Shooter Alley argues that the trial court erred in awarding attorney fees against it and that the underlying injunction imposes an impermissible prior restraint, is overbroad, and is based on a statute that is unconstitutional as applied. We affirm the award and decline to consider the prior restraint argument for the reasons that follow.

The record shows that Shooter Alley offered nude dance entertainment in unincorporated DeKalb County. After the property was annexed by the City of Doraville (the “City”) in 2014, Shooter Alley filed suit against the City, challenging its adult entertainment ordinances. The City counterclaimed, seeking injunctive relief requiring Shooter Alley to honor the City’s ordinances. The City moved for judgment on the pleadings, which the trial court granted, dismissing Shooter Alley’s claims and granting a permanent injunction against Shooter Alley. Several months later, the City filed a motion for criminal and civil contempt against Shooter Alley for violating the injunction, which the trial court granted.

In its order, the trial court found that Shooter Alley violated the injunction in numerous ways on several occasions. The trial court found Shooter Alley guilty of criminal contempt and fined it $15,000 underOCGA § 15-6-8(5) for violations of the injunction. Inits finding of civil contempt, the trial court set a prospective fine of $10,000 for each future violation of the injunction. Finally, the trial court also awarded the City its attorney fees and litigation expenses under OCGA § 9-15-14 (a) and (b) for having to bring the motion for civil contempt, which amounted to $17,296.53. This appeal followed.

1. Shooter Alley first argues that the trial court erred in awarding attorney fees and litigation costs. In particular, Shooter Alley argues that: (a) the civil contempt award is improper because it seeks to punish future uncommitted violations of a past order, and attorney fees could not have been awarded as a sanction for criminal contempt; (b) the trial court failed to hold a hearing on the grounds for and the amount offees awarded under OCGA § 9-15-14; and(c)the trial court failed to enter findings of fact and conclusions of law that allocate fees to sanctionable conduct. We affirm under OCGA § 9-15-14 (a) if there is any evidence to support the award of attorney fees, while we review awards under subsection (b) for abuse of discretion. Shiv Aban, Inc. v. Ga. Dept. of Transp., 336 Ga. App. 804, 814-815 (2) (784 SE2d 134) (2016).

(a) Shooter Alley challenges the award of attorney fees and litigation costs, arguing that the civil contempt award was improper and that attorney fees and costs could not be awarded as a sanction for criminal contempt. “Acts of contempt are neither civil nor criminal.” Grantham v. Universal Tax Systems, 217 Ga. App. 676, 677 (2) (458 SE2d 870) (1995). Once an act is considered to constitute contempt of court, the action the court takes to remedy it determines whether the contempt is deemed criminal or civil. Id. “The distinction between the two is that criminal contempt imposes unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order.” Id. (quoting Carey Canada, Inc. v. Hinely, 257 Ga. 150, 151 (356 SE2d 202) (1987)).

In this case, the trial court levied a “civil contempt sanction” in the amount of $10,000 for each future violation of the injunction. The trial court expressly stated that this amount was intended to prevent future violations of, and to coerce compliance with, the injunction. We have found no case law prohibiting such a civil contempt award, and Shooter Alley directs us to none. Rather, Shooter Alley argues that the cases the trial court relied on in awarding civil contempt required the party to do or not do some action, which it claims is different than the trial court order here. This is obviously incorrect, as the injunction sets forth several prohibitions on Shooter Alley’s conduct. Nor, as Shooter Alley argues, is the award of civil contempt based on an anticipatory breach of the injunction, a theory of recovery the Supreme Court rejected in Hardman v. Hardman, 295 Ga. 732, 739-740 (4) (763 SE2d 861) (2014). Rather, civil contempt was awarded after Shooter Alley violated the injunction. Thus, the award is a valid civil contempt award.

While it is true that there is a prohibition against awarding attorney fees in criminal contempt proceedings, other authority such as OCGA § 9-15-14 may authorize an award of fees. Murtagh v. Emory Univ., 321 Ga. App. 411, 416 (3) (b) (741 SE2d 212) (2013). Under OCGA § 9-15-14 (a), the court shall award fees against a party that asserted a defense or other position with “such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the... defense, or other position.” Under OCGA § 9-15-14 (b), the court may award fees against a party that “brought or defended an action, or any part thereof, that lacked substantial justification” or “unnecessarily expanded the proceeding by other improper conduct[.]” The trial court awarded attorney fees to the City under both provisions of this statute “for having to bring and argue this motion for civil contempt to coerce Shooter Alley’s future compliance with the permanent injunction.” Contrary to Shooter Alley’s arguments, attorney fees and costs were not granted based on some theoretical future conduct. Nor was it awarded as a criminal contempt sanction. Rather, the award was based on Shooter Alley’s conduct in litigating the contempt order. A party’s conduct in litigation is a valid basis for awarding attorney fees. See Minor v. Minor, 257 Ga. 706, 709 (2) (362 SE2d 208) (1987) (noting that OCGA § 9-15-14 can provide authority for awarding attorney fees in a contempt action where warranted by a party’s conduct).

(b) Shooter Alley next argues that the trial court erred when it failed to hold a hearing on the grounds and amount of fees, and that the fees were neither reasonable nor necessary. “[I]t is ‘black letter law’ that a hearing is required to enter an award of attorney fees.” Moore v. Moore, 307 Ga. App. 889, 889 (1) (706 SE2d 465) (2011). In order for an award under OCGA § 9-15-14 to be valid, “the trial court must conduct an evidentiary hearing to determine the amount of reasonable and necessary attorney fees, and the failure to do so is reversible error.” Id. (citation and punctuation omitted). An exception to this requirement exists where a party against whom attorney fees may be awarded waives the hearing either expressly or by its conduct. Williams v. Becker, 294 Ga. 411, 413 (2) (a) (754 SE2d 11) (2014). The City argues Shooter Alley waived its right to a separate evidentiary hearing on attorney fees by failing to respond to the City’s initial motion seeking them, and by failing to lodge an objection to this effect at the hearing.

Shooter Alley received notice that the City was seeking attorney fees and litigation costs under OCGA § 9-15-14 in the City’s motion for sanctions. At the hearing on the City’s motion, Shooter Alley also had the opportunity to cross-examine the investigator the City used in preparing its case, and for whose work the City was seeking reimbursement. At the end of the hearing on the City’s contempt motion, the trial court gave the City a chance to submit its attorney fees via affidavit and gave Shooter Alley the opportunity to submit any additional arguments via brief. Shooter Alley filed a “hearing brief” in which it primarily challenged the constitutionality of the injunction, but also argued that the City was not entitled to attorney fees because Shooter Alley was not in wilful violation of the injunction. The City filed its affidavit, Shooter Alley did not respond or object to it, and ten days later, the trial court entered the order granting the request for contempt and attorney fees and costs. Shooter Alley was thus given a clear opportunity to challenge the basis on which the attorney fees and costs were assessed, and it waived the right to an evidentiary hearing by its conduct. See Tavakolian v. Agio Corp., 304 Ga. App. 660, 664 (3) (697 SE2d 233) (2010).

(c) Shooter Alley argues that the lump sum award under both OCGA § 9-15-14(a)and(b)isnotpermissible,andthatthe trial court should have distinguished between expenses needed to prove past violations and those seeking prospective relief. But this is an inconsequential distinction because the trial court determined that the same facts supporting both civil and criminal contempt — that is, Shooter Alley’s conduct in requiring a contempt action to enforce the injunction in the first place — lacked substantial justification such that an award of attorney fees and litigation expenses under OCGA § 9-15-14 was warranted. In other words, the trial court found that Shooter Alley lacked substantial justification for any of its positions in the contempt proceedings. Accordingly, it held all of the conduct in the contempt proceedings to be sanctionable.

“In cases involving OCGA § 9-15-14 (a) or (b), the trial court must limit the fees award to those fees incurred because of the sanctionable conduct. Lump sum or unapportioned attorney fees awards are not permitted in Georgia.” Razavi v. Merchant, 330 Ga. App. 407, 410 (1) (c) (765 SE2d479) (2014) (citation and punctuation omitted). In its order, the trial court awarded $17,296.53 in attorney fees and litigation expenses based on the affidavit filed by the City The trial court made this award under both OCGA § 9-15-14 (a) and (b) after finding an absence of any justiciable issue of law or fact in Shooter Alley’s “contemptuous operation” and in light of on-point Supreme Court authority upholding the City’s challenged ordinance. The court also found that Shooter Alley wilfully disregarded and disobeyed the injunction without substantial justification and expanded the proceedings to require a contempt motion. That the trial court decided to impose both civil and criminal contempt to enforce its injunction does not invalidate its determination that Shooter Alley’s conduct lacked substantial justification such that attorney fees and litigation expenses were appropriate under OCGA § 9-15-14. See Murtagh, 321 Ga.App. at 417 (3) (b) (affirming award of attorney fees made under separate statutory authority where trial court also imposed criminal contempt sanctions).

2. Shooter Alley next argues that the attorney fee award is premised on an injunction that imposes an impermissible prior restraint, is overbroad, and that the injunction is based on a statute that is unconstitutional as applied. These issues were raised in Shooter Alley’s appeal that was pending before the Supreme Court of Georgia. In transferring the appeal to this Court, however, the Supreme Court held that Shooter Alley had not timely raised these arguments in the trial court, and the trial court had not ruled on the constitutional challenges to the City’s ordinance. We are bound by the Supreme Court’s ruling — now the law of the case — that such issues were not passed upon by the lower court. Armstrong v. Lawyers Title Ins. Corp., 138 Ga. App. 727, 727-728 (1) (227 SE2d 409) (1976) (physical precedent only); see also Stephens v. Tate, 147 Ga. App. 366, 370 (2) (C) (249 SE2d 92) (1978). We therefore must dispose of the case as if these issues had never been raised, and consideration of Shooter Alley’s argument is precluded. Id.; Watson v. Frnka, 266 Ga. App. 64, 65-66 (596 SE2d 187) (2004).

Judgment affirmed.

McFadden, P. J., and Branch, J., concur.

On Motion for Reconsideration.

Shooter Alley has filed a motion for reconsideration arguing, in short, that it did not waive its right to a hearing on OCGA § 9-15-14 fees through its conduct because it timely opposed the motion. In support of this assertion, Shooter Alley relies on (1) its opposition to the court’s order awarding fees filed eight days after the order was issued, and (2) its post-hearing brief. Shooter Alley did not file a response brief in opposition to the City’s motion seeking sanctions and attorney fees, did not make any arguments at the hearing on the motion specifically regarding the request for attorney fees, and did not request a hearing on the matter.

Shooter Alley correctly recites the law as set forth by the Supreme Court of Georgia in Williams v. Becker, 294 Ga. 411 (754 SE2d 11) (2014). In Williams, the Supreme Court stated that “[a] timely objection to a motion for attorney fees under OCGA § 9-15-14, even without a specific request for a hearing, is generally sufficient to preclude a waiver by conduct of the right to an evidentiary hearing.” 294 Ga. at 413 (2) (a) (emphasis supplied). That the rule is generally applicable necessarily implies that the rule is not absolute and that some exception exists.

Thus, where, as here, a party has notice and an opportunity to respond to a party’s request for attorney fees but fails to challenge timely “the reasonableness of the hourly rates or the time spent on the matter,” makes no request for a hearing on the issue, and is heard by the court on the one argument actually made, it is reasonable for the trial court to conclude that an additional hearing is not needed. See, e.g., Bell v. Waffle House, 331 Ga. App. 443, 446 (771 SE2d 132) (2015) (finding that a party waived the right to a hearing where he did not request one and did not challenge the reasonableness of the hourly rates or the time spent on the matter, made only a procedural argument unrelated to the sufficiency of the evidence supporting the motion, and where the single issue he raised did not require one). That Shooter Alley was not aware of the precise amount of attorney fees being sought until the affidavit was filed does not affect our analysis here. After the affidavit was filed following the hearing, ten days passed before the order awarding the attorney fees was entered, during which time Shooter Alley filed no objection. Further, Shooter Alley was aware that the City was seeking attorney fees for the entire contempt action. But Shooter Alley failed to timely object to the expansive request.

Decided May 5, 2017

Reconsideration denied June 8, 2017.

Wiggins Law Group, Cary S. Wiggins, for appellant.

Law Office of Scott D. Bergthold, Scott D. Bergthold, Bryan A. Dykes; Riley McLendon, Cecil G. McLendon, Jr., Leonid M. Felgin, for appellee.

We also note that Shooter Alley’s objection to the attorney fees filed eight days after the order awarding them was issued was not timely and therefore cannot serve as a basis for this Court to decline a finding of waiver.

Therefore, upon consideration of Shooter Alley’s motion for reconsideration in the above-styled case, it is ordered that the motion is hereby denied.

Motion for reconsideration denied.

       Shooter Alley separately appealed the injunction to the Supreme Court of Georgia. The Supreme Court transferred the appeal to this Court as Case No. A17A1067. Because Shooter Alley also challenged the constitutionality of the injunction in Case No. A17A0381, we have combined the two appeals for the purposes of this opinion.

       The City also requested attorney fees under OCGA § 9-15-14.

        In Murtagh v. Emory Univ., 321 Ga.App. 411 (741 SE2d212) (2013), this Court noted that a prospective fine of $15,000 for any future violations of a settlement agreement “attempted to induce future obedience to the court’s commands.” Id. at 415 (2). But this was dicta.

       We note, however, that the additional arguments that Shooter Alley and the court appeared to be contemplating did not pertain to the attorney fees.

       Shooter Alley conceded at oral argument that if the Supreme Court’s transfer order said that the issue of prior restraint was not preserved, then this would be the law of the case.

       This was the only argument Shooter Alley made in its initial appellate briefing as to why it did not waive its right to a hearing on OCGA § 9-15-14 fees. The order was entered on May 19, 2016. Shooter Alley filed its opposition on May 27, 2016.

       Following the hearing, Shooter Alley filed a hearing brief arguing that the City was not entitled to attorney fees because Shooter Alley was not in wilful violation of the injunction. The hearing addressed Shooter Alley’s wilful violation of the injunction.

       While this Court did not address whether a hearing was required under OCGA § 9-11-68 (b) (1) in Bell v. Waffle House because Bell had waived the right to any such hearing by his conduct, 331 Ga. App. at 446, we later made clear that a hearing is required. See Richardson v. Locklyn, 339 Ga. App. 457, 462 (793 SE2d 640) (2016).


source: Caselaw Access Project

author: Reese, Judge.

license: Public Domain

text:
    A17A0046.
    PORTER v. THE STATE.
    (802 SE2d 259)
   Reese, Judge.

Following a jury trial, Tomeka Porter (hereinafter “Appellant”) was convicted of armed robbery and sentenced to serve 20 years in confinement. She appeals from the denial of her motion for new trial, arguing that the evidence was insufficient to support her conviction and that the trial court erred in admitting her custodial statement and the witness’ showup identification of her as one of the offenders. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows the following facts. On August 9, 2013, the Appellant was in a DeKalb County hotel selling drugs when Ladarius Clark, Teneshia Harvey, Theophilus Porter (“Porter”), and Sir Charles Wood came to her hotel room. The Appellant voluntarily drove Clark, Harvey, Porter, and Wood (collectively, the “co-defendants”) to Gwin-nett County so the Appellant could sell cocaine. While the Appellant drove, the co-defendants consumed drugs and alcohol.

After arriving in Gwinnett County, the Appellant’s phone rang, and she spoke to the caller in Spanish while she stopped at a couple of residences. After the conversation, the Appellant told the co-defendants that the caller “had some nice things,” he would “pay well,” and he was an “easy target.” They discussed a plan to travel to the caller’s home, “see[ ] what all he had” and steal items from the house.

On the night of the robbery, the caller, “A. H.,” and his two roommates, “P. C.” and “R. J.,” were at A. H.’s home. The Appellant and her co-defendants arrived at the house around 1:00 a.m. The Appellant and her female co-defendant, Harvey, exited the vehicle and went inside, stayed about ten to fifteen minutes, and returned to the car.

During that visit to A. H.’s house, P C. was asleep in the living room. The Appellant, Harvey, and A. H. went to A. H.’s room for a few minutes. Before leaving the residence, the Appellant woke up P C., kissed him, and said “I’ll come back for you.” Upon returning to the car, the Appellant told the co-defendants, “[A. H.] ha[d] nice things” but did not pay what he owed her.

The Appellant and her co-defendants drove to the end of the street but then decided collectively to return to the house and steal some things. The Appellant and Harvey returnedto the house around 1:30 a.m. P C. saw them through a window adjacent to the door but did not notice the three male co-defendants hidden in the bushes around the side of the house. When P C. opened the door, the male co-defendants appeared in the doorway and “jump[ed] inside” the home, in front of the Appellant and Harvey. Once the Appellant and her co-defendants were all inside, P C. saw that one of the men had a gun.

The male co-defendants punched and beat P C. and took him to another room occupied by A. H. They asked for the victims’ wallets, keys, and cell phones. A. H. grabbed a chair to fight back, but one of the men shot him in the shoulder. The male co-defendants took the victims’ cell phones and a car key.

While the male co-defendants were inside the residence, R. J. slept in his bedroom. He awoke upon hearing a “ruckus” in the home and opened his bedroom door. R. J. saw one of the male co-defendants holding a gun. R. J. closed his bedroom door and climbed out of his bedroom window to the street.

The Appellant and Harvey exited the house, returned to the vehicle, and the Appellant drove away. While leaving the neighborhood, the Appellant and Harvey saw a man, later identified as R. J., “frantically walking” down the street with a cell phone. Harvey told the Appellant to stop the car, after which she told the man, “I just want your phone.” R. J. gave Harvey the phone, and she and the Appellant returned to A. H.’s residence. Once there, Wood got into the car’s back seat and the Appellant started driving “[b]ack to DeKalb County”

At 3:07 a.m., a DeKalb County police officer initiated a traffic stop of the Appellant’s car because it had a “cardboard tag.” After the Appellant gave the police officer a driver’s license that was not hers and a date of birth that did not match the license, the officer arrested her for identity fraud. Because neither Harvey nor Wood had a valid driver’s license, several officers conducted an inventory search in preparation for impounding the vehicle. After discovering a handgun, the officers contacted neighboring precincts to determine if any crimes, such as entering autos or armed robberies, had recently occurred. The Gwinnett County Police Department responded that there had just been a home invasion during which someone was shot. Gwinnett County officers brought two of the home invasion victims, P. C. and R. J., to the site of the traffic stop. P C. identified the Appellant, Harvey, and Wood as being involved in the robbery, and R. J. identified Harvey The Appellant was taken into custody.

1. The Appellant argues that the evidence was insufficient for a rational trier of fact to find her guilty of armed robbery We disagree.

Generally, on appeal from a criminal conviction, the appellate court

view[s] the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. [The] Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia,[ ] and does not weigh the evidence or determine witness credibility Any conflicts or inconsistencies in the evidence are 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 Court] must uphold the jury’s verdict.

The standard of Jackson v. Virginia is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crime charged.

A person commits armed robbery “when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 24-14-8 states, in part, “[t]he testimony of a single witness is generally sufficient to establish a fact.” “[A] defendant may not be convicted on the uncorroborated testimony of an accomplice. The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he [or she] is guilty.”

At trial, the jury heard the testimony of victims P. C. andR. J. and the Appellant’s co-defendants, Porter and Harvey Both Porter and Harvey testified that the Appellant told them that the victims’ home had “nice things,” and that the Appellant had actively participated in the planning and implementation of the robbery. Both testified that the Appellant drove the co-defendants to the victims’ home for the purpose of committing the robbery P C. corroborated the co-defendants’ testimony by testifying that he was “a hundred percent” sure that the Appellant was the woman who kissed him and, later, came into the house with the co-defendants. We conclude that the evidence presented was sufficient for a rational trier of fact to find the Appellant guilty of armed robbery beyond a reasonable doubt.

2. The Appellant contends that the trial court erred in admitting the portion of her custodial statement that she made after invoking her right to counsel. We disagree.

“In reviewing a trial court’s ruling on a motion to suppress, [the appellate court] must affirm the trial court’s findings on disputed facts unless clearly erroneous.” When the recorded interrogation sessions at issue are made part of the appellate record, we review the trial court’s application of the law to the undisputed facts de novo.

As the Supreme Court of Georgia has instructed,

(1) A suspect who asks for a lawyer at any time during a custodial interrogation may not be subjected to further questioning by law enforcement until an attorney has been made available or until the suspect reinitiates the conversation. If the police persist in questioning a suspect who has requested that counsel be present, any resulting statements made by the suspect are inadmissible in the State’s case-in-chief. (2) In order for a suspect to properly invoke his right to counsel during a custodial interrogation, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.

Thus, “[a] n accused will be found to have unambiguously and unequivocally asserted his right to remain silent where he declares that he is finished talking or otherwise expresses the clear desire for police questioning to cease.”

In this case, two Gwinnett County detectives interviewed the Appellant. During questioning, she repeatedly denied knowing anything about the armed robbery at issue, claiming that she was not present. When the detectives continued to ask her about discrepancies in her statements, she stated, “I’ll probably have to stop and let my lawyer handle the rest of it.” The detectives left the room without asking further questions. About 30 minutes later, the detectives returned to the room, and one asked the Appellant if she wanted to tell them “what really happened?” The Appellant continued to deny any knowledge about what had occurred. A detective asked her again, “Do you want to talk about what happened?” The Appellant responded that she had already talked to them. The detectives then left, but one detective returned to the room about 90 minutes later. He told the Appellant that law enforcement officers had apprehended the other people suspected of being involved in the armed robbery, and asked her “if their story [is] going to be the same as [hers]?” When the Appellant did not respond, the detective told her, “If you don’t want to talk, just tell me.” The Appellant responded by repeating her claim of ignorance about the incident. The detective and the Appellant talked for a few minutes before the detective mentioned that someone was shot during the armed robbery The Appellant responded, “I didn’t know anything about anybody getting shot.” Then, after remaining silent for about six minutes, the Appellant said, “I need a lawyer, (unintelligible) don’t want to put myself (unintelligible) you said somebody got shot. I need a lawyer.” The detective immediately left the room, and the interrogation ended.

After reviewing the recording of the custodial interview, we find that the Appellant’s initial statement, “I’ll probably have to stop and let my lawyer handle the rest of it,” was not an unequivocal assertion of her right to counsel. This conclusion is bolstered by her later statement, “I need a lawyer,” which was clearly a request for counsel. Even if her first statement was sufficient, the detectives ceased their interrogation, and the only statements by the Appellant afterward were redundant of her previous, unobjected-to statements. Thus, we find as a matter of law that the trial court properly admitted the Appellant’s custodial pre-trial statement.

3. The Appellant asserts that the trial court improperly admitted evidence of the victims’ showup identification of her as one of the participants in the armed robbery. We disagree.

Generally, this Court first determines

whether the identification procedure was impermissibly suggestive. If the answer to that inquiry is negative, we need not consider the second question — whether there was a substantial likelihood of irreparable misidentification. Conversely, we may immediately proceed to the second question and, if the answer thereto is negative, we may entirely pretermit the first question.

Thus, even if the circumstances surrounding the Appellant’s identification “rendered the showup impermissibly suggestive, the evidence is inadmissible only if[,] under the totality of the circumstances, there was a substantial likelihood of irreparable misidentification.”

Here, a Gwinnett County police officer conducted the showup identification of the Appellant at 4:28 a.m., about three hours after the robbery. The showup occurred on the side of Interstate 85 with victims P. C. and R. J. in a police car. Neither the Appellant nor her co-defendants were handcuffed. P. C. positively identified the Appellant, telling the Gwinnett County officer “that he was 100 percent sure,” that the Appellant was the woman who kissed him and came back to rob them. R. J. was unable to identify the Appellant.

At trial, R. J. testified that the Gwinnett County officer who transported him and P C. to the site of the traffic stop told them “that there are some — some suspects — some people that we ... think are connected to what has happened” and asked them, “if possible, to identify those . . . individuals.” The officer testified, however, that he had extensive experience working with crime victims and conducting showup identifications. He also testified as follows:

I made sure to advise the victims that[,] just [because] I’m taking them to show them someone, that does not necessarily mean that these are the people that did it. And that they would have [to] recollect from their memory, from their thoughts of what occurred, [to determine] if these are actually the individuals [who robbed them]. So I relay that to them that they did not have to make an identification. If they were not sure, they did not have to... make an identification.

The Appellant argues in her brief that having both victims together during the showup, and the use of the words “some suspects” by the Gwinnett County officer, was impermissibly suggestive. Pre-termitting the alleged suggestiveness of the showup procedure, however, the Appellant has failed to show that there was a substantial likelihood of misidentification.

Decided June 8, 2017

G. Richard Stepp, for appellant.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Dwayne A. Brown, Jr., Assistant District Attorneys, for appellee.

At trial, P. C. testified that the Appellant was wearing the same clothes during the armed robbery that she was wearing during the showup. P. C. had the opportunity to see the Appellant at close range when she kissed him and told him that she would be back. The Appellant’s co-defendants also identified her as a participant in the crime. Based on the foregoing, we find that the trial court did not err in admitting the showup identification of the Appellant.

Judgment affirmed.

Doyle, C. J., and Miller, P. J., concur.

       OCGA § 16-8-41 (a).

       See Hogan v. State, 330 Ga. App. 596, 597 (768 SE2d 779) (2015).

       Theophilus Porter is unrelated to the Appellant.

       A. H. subsequently moved out of the country and did not testify at the Appellant’s trial.

       Porter and Clark were later apprehended in Virginia with a stolen television and BMW that belonged to the victims.

       The Appellant and her co-defendants were jointly indicted for the armed robbery of A. H. In addition, the Appellant’s male co-defendants were charged with the armed robbery of R C., as well as aggravated assault, false imprisonment, and other crimes arising from this incident. Porter testified at the Appellant’s trial, and he admitted that he had pled guilty to the crimes but had not yet been sentenced. The Appellant’s female co-defendant, Harvey, was charged with armed robbery and theft by taking. She also testified at the Appellant’s trial, even though she had not yet entered a plea in the case.

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

        Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004) (citations omitted).

        Clark v. State, 275 Ga. 220, 221 (1) (564 SE2d 191) (2002).

       OCGA § 16-8-41 (a).

       In 2011, the Georgia General Assembly repealed the Evidence Code in its entirety and replaced it with a new Evidence Code, the provisions of which became effective on January 1, 2013, and which applies to any motion, hearing, or trial commenced on or after such date. Ga. L. 2011, pp. 99, 100, 214, §§ 1, 101. Pursuant to that legislative act, former OCGA § 24-4-8 has been reenacted as OCGA § 24-14-8. Because the instant trial took place in August 2015, the new Evidence Code applies.

        Susan v. State, 254 Ga. App. 276, 279 (1) (562 SE2d 233) (2002) (citing former OCGA § 24-4-8).

       See Robinson v. State, 281 Ga. App. 76, 78 (1) (635 SE2d 380) (2006) (evidence was sufficient where the victims of the armed robberies both identified the defendant as the perpetrator and police officers testified that the defendant had a gun when they approached him).

        Mack v. State, 296 Ga. 239, 241 (765 SE2d 896) (2014).

       Id. at 241-242.

        State v. Philpot, 299 Ga. 206, 206-207 (787 SE2d 181) (2016) (citation and punctuation omitted).

        Mack, 296 Ga. at 242 (1) (citations and punctuation omitted).

        See Brooks v. State, 271 Ga. 698, 699 (2) (a) (523 SE2d 866) (1999) (“The comments on which [the] [AJppellant reliefd], when vie wed in context, were not clear invocations of the right to counsel and thus the officers had no obligation to cease questioning her immediately.”).

       See Harrington v. State, 300 Ga. 574, 580 (3) (a) (797 SE2d 107) (2017) (It was harmless error to admit the portions of the Appellant’s custodial interrogation that followed his alleged invocation of his right to remain silent, because his subsequent statements were reaffirmations of his “previous unobjected-to statements.”).

        Butler v. State, 290 Ga. 412, 415 (3) (721 SE2d 876) (2012) (citation and punctuation omitted).

       Id. (citations and punctuation omitted).


author: DOYLE, Chief Judge.

text:
    A17A0148.
    THE STATE v. HOLTZCLAW.
    (802 SE2d 254)
   DOYLE, Chief Judge.

The State appeals from the grant of Audrey Holtzclaw’s motion to suppress evidence police found in her house, which evidence is the basis for charges that she crossed the guard line of the county jail with a controlled substance and that she possessed methamphetamine (two counts) and alprazolam in violation of the Georgia Controlled Substances Act. The State contends that the trial court erred by ruling that (1) an occupant of the home lacked authority to allow police into Holtzclaw’s home, and (2) Holtzclaw did not thereafter voluntarily give police consent to search her house. For the reasons that follow, we affirm.

There are three principles that guide our review of a trial court’s ruling on a motion to suppress.

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

Further, “to the extent that the controlling facts are undisputed because they are plainly discernable from [a] recording..., we review those facts de novo.”

So viewed, the record shows that police received a complaint of drug activity at a particular address in Dawson County. Two officers arrived at the residence and knocked on the front door. They could hear activity inside, but initially no one came to the door. Soon thereafter, a man named Shannon emerged from a garage door where the officers met him. The officers had independent knowledge that they were looking for Holtzclaw, who lived at the residence. Shannon explained that “this is not my house. This is my cousin’s house ... I don’t live here.” Shannon said he had come to visit Holtzclaw, but she was not there. The front door would not open, so he had found another door unlocked and had entered the house to wait for Holtzclaw. Shannon explained that he did not have a key to the house, but Holtz-claw would be back soon. The officers asked Shannon if they could walk through the house to see if anyone else was there, and Shannon said “that’s fine with me, but like I said, this is not my house.”

After entering the house, police encountered a man named Kevin, who provided a false name and date of birth. Police started to arrest Kevin, but he resisted, and an altercation ensued. After Kevin was subdued, the officers checked the rest of the house and noticed an odor of marijuana and a marijuana smoking device in a separate bedroom. After the initial sweep of the house, Shannon “insisted [on] trying to contact” Holtzclaw, but officers were unable to reach her, so they decided to apply for a warrant to search the house.

Thereafter, investigators arrived, and two officers left the scene to apply for the warrant; on their way, they were advised that Holtzclaw had arrived at her residence, so they went back to speak to Holtzclaw.

When Holtzclaw arrived, she observed that

officers [were] coming in and out of the front door of my house. They were already in there[,] and they had already [taken] Kevin to jail[,] and Shannon was not there. . . . [Police] were in there and didn’t have permission to be in my house.... Nobody was there. Just the police officers with the front door wide open.

Much of the ensuing conversation with Holtzclaw was recorded on an audio recorder triggered by police when they began speaking to her. In that conversation, police asked for consent to search her house, repeatedly assuring Holtzclaw that she would have an opportunity to explain the circumstances for anything they found and whether it was brought there by visitors. The officer also explained to Holtzclaw that they had already found “a marijuana pipe” in the house, and they were in the process of obtaining a search warrant: “Either way, we’re gonna find it, so, search warrant or not, so, if you think the search warrant’s gonna lessen the blow, I mean, it’s not.”

Holtzclaw declined consent to search her house but allowed officers to search her purse and car. Police found a syringe and her mother’s prescription pills in Holtzclaw’s car but nothing in her purse. A few minutes later, after further discussion, the officer again asked for consent to search her house, and Holtzclaw said she did not “want to go to jail for something someone else did,” pointing out that other people had stayed in her house the prior night. The officer again reiterated that he would allow Holtzclaw a chance to explain whatever they found. Ultimately, Holtzclaw consented to a search of her house.

During the search, police found syringes in Holtzclaw’s bedroom and methamphetamine in a jewelry box on her dresser. Holtzclaw was arrested and taken to jail, where an additional packet of suspected methamphetamine was found on her person. Holtzclaw was charged with crossing the guard line of the county jail with a controlled substance and possessing methamphetamine and alprazolam.

Holtzclaw moved to suppress the evidence found in her house, arguing that the police lacked authority to enter it initially and that her subsequent consent was not voluntarily given. Following an evidentiary hearing, the trial court granted the motion, ruling that Shannon did not have authority to allow police into Holtzclaw’s home while she was not there and that her subsequent consent based in part on that initial entry was involuntary The State now appeals.

1. The State contends that the trial court erred by ruling that the police lacked a reasonable, good faith belief that Shannon had authority to let them into Holtzclaw’s house. We disagree.

The Fourth Amendment states that people “shall be secure in their person, houses, papers, and effects, against unreasonable searches and seizures.” Fundamentally, there exists a justified expectation of privacy against unreasonable intrusions into the home .... [A] police entry into the home constitutes a search within the meaning of the Fourth Amendment.... Once an officer physically enters a home, he is “searching” it in that he is observing it with his senses.

Thus, we must first determine whether police had authority to enter and thereby search Holtzclaw’s home during their initial entry based on Shannon’s consent.

Police conceded that they did not act pursuant to any exigency, and the only basis for their initial entry was Shannon’s consent.

In a case such as this involving a third party’s consent to search, the State has the burden to prove not only that consent was voluntary but that the third party had authority over, and other sufficient relationship to, the premises sought to be inspected. To resolve the issue of third party consent, we must determine whether the objective facts available to the officer at the time would warrant a person of reasonable caution to conclude that the third party had authority over the premises. The officer’s belief that the third party has authority over another person’s property to consent to the search thereof should be based on information previously obtained in his investigation as well as facts and circumstances existent at the time of the search.
The type of authority or relationship to the premises by the third party must constitute the following: mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Here, it is undisputed that the police knew that Holtzclaw owned the home, and Shannon explained to them that “this is not my house.” Shannon told the officers that he did not have a key, and he was waiting for the owner, who would be there soon. Based on this evidence, the trial court was authorized to find that it was clear from the circumstances that Shannon was merely a visitor to the home and had no actual or apparent authority over it. “[T]he mere presence of a third party who opens the door is insufficient to show the type of authority required” to consent to a search in the absence of the homeowner. Accordingly, this enumeration presents no basis for reversal.

2. The State also argues that the trial court erred by finding that Holtzclaw’s subsequent consent to search her house was involuntary Again, the record supports the trial court’s ruling on this issue.

A search based on voluntary consent eliminates the need for a search warrant or probable cause. The law does not require that a party be told of his right to refuse a search or terminate a search. While giving such information maybe considered, voluntariness is determined by the totality of the circumstances, including such factors as the age of the accused, his education, his intelligence, the length of detention, whether the accused was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of all these factors on the accused. No single factor controls.

Here, the record shows that Holtzclaw arrived at her residence to see police “coming in and out of the front door of my house. They were already in there” before she was asked for consent to search her home. Although no overt threats were made by police, she was told that police already had found a marijuana pipe in her house, and “[ejither way, we’re gonna find it, so, search warrant or not, so, if you think the search warrant’s gonna lessen the blow, I mean, it’s not.” Further, Holtzclaw was prohibited from going into her house until police were able to search her house with a warrant. These circumstances authorized the trial court to conclude that Holtzclaw believed she had no choice in the matter, particularly because she witnessed police already in her house. Police were able to leverage their discovery of the marijuana pipe during the earlier unauthorized search to convince Holtzclaw to consent to the search. Under these circumstances, the record supports the trial court’s ruling that Holtzclaw’s consent was the product of the earlier illegal search and therefore not voluntary.

Decided June 8, 2017.

Lee Darragh, District Attorney, Robert T. Gardner, Assistant District Attorney, for appellant.

H. Bradford Morris, Jr., Dawn M. Seibert, Rachel D. Ackley, for appellee.

Judgment affirmed.

Miller, P. J., and Reese, J., concur.

       OCGA § 42-4-13 (d) (1) (A).

       OCGA § 16-13-30 (a).

       (Punctuation omitted.) Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d 148) (2013), quoting Miller v. State, 288 Ga. 286, 286 (1) (702 SE2d 888) (2010).

       (Punctuation omitted.) State v. Depol, 336 Ga. App. 191 (784 SE2d 51) (2016), quoting State v. Mosley, 321 Ga. App. 236 (739 SE2d 106) (2013).

       (Citation, punctuation and emphasis omitted.) Hunt v. State, 302 Ga. App. 578, 581 (1) (691 SE2d 368) (2010).

       At the suppression hearing, the officer who spoke with Shannon explained that they had no basis for entering Holtzclaw’s house other than Shannon’s consent: “Had he refused . . . [a]t that time we would have had to leave the house. We would have had no further action to take at that time.”

       (Punctuation omitted.) Id. at 581-582 (1).

       (Punctuation omitted.) Brown v. State, 261 Ga. App. 351, 353 (1) (582 SE2d 516) (2003), quoting Smith v. State, 264 Ga. 87, 88 (2) (441 SE2d 241) (1994). See also Georgia v. Randolph, 547 U. S. 103, 110 (II) (A) (126 SCt 1515, 164 LE2d 208) (2006) (“The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.”) (punctuation omitted), quoting United States v. Matlock, 415 U. S. 164, 171 (II) n. 7 (94 SCt 988, 39 LE2d 242) (1974).

       See Brown, 261 Ga. App. at 354 (1).

       Id.

       (Citations and punctuation omitted.) Martinez v. State, 239 Ga. App. 662, 663 (522 SE2d 53) (1999).

       The trial court expressly found that this was a factor in its decision: “[T]he Court cannot ignore the Defendant’s testimony that they were already in her house when she arrived home.”

       See Pledger v. State, 257 Ga. App. 794, 797-800 (572 SE2d 348) (2002). See also Snider v. State, 292 Ga. App. 180, 183-184 (663 SE2d 805) (2008) (holding that consent was not voluntary based on initial unlawful police action); Hogan v. State, 140 Ga.App. 716 (231 SE2d 802) (1976) (“ ‘A [woman’s] home is [her] castle. The storm and wind may enter, but the King cannot enter, and all the forces of the Crown cannot cross the threshold of [her] ruined tenement.’ These words by Lord Eldon served as the basis for that portion of the Fourth Amendment in the Bill of Rights declaring that the people shall be secure in their houses against unreasonable searches and seizures.”).


text:
    A17A0153.
    STEVENS et al. v. FOOD LION, LLC.
    (801 SE2d 340)
   DOYLE, Chief Judge.

Adrienne and Roy Stevens (the “plaintiffs”) filed a negligence action against Food Lion, LLC, after Adrienne fell at a Food Lion store. Following a jury trial, the trial court entered judgment in favor of the plaintiffs. Thereafter, the trial court granted Food Lion’s motion to amend the judgment to include attorney fees and costs under OCGA § 9-11-68. The plaintiffs appeal, arguing that the trial court was without authority to amend the judgment. For the reasons that follow, we affirm.

The facts relevant to this appeal are undisputed. On November 26, 2012, the plaintiffs sued Food Lion. On November 26, 2013, Food Lion sent plaintiffs’ counsel an offer of settlement made pursuant to OCGA § 9-11-68, offering to settle all claims for $25,000; the plaintiffs rejected the offer. Following a trial, the jury found in favor of Adrienne as to her claims in the amount of $25,000 but found her 30 percent negligent; it found in favor of Food Lion as to Roy’s loss of consortium claim. On July 2, 2015, the trial court entered judgment in favor of Adrienne in the amount of $17,500, which amount reflects the reduction based upon the jury’s finding that she was contributo-rily negligent.

On July 30, 2015, Food Lion filed a motion for attorney fees and costs pursuant to OCGA § 9-11-68 (b) (1) and a separate motion to amend the final judgment to add attorney fees and costs. The following day, the plaintiffs filed a motion for new trial; they later dismissed that motion on December 8, 2015. On June 21, 2016, the trial court held a hearing on Food Lion’s motions for attorney fees and costs and to amend the judgment. Plaintiffs’ counsel argued that the fees were not reasonable but declined to present evidence or cross-examine Food Lion’s witnesses regarding the fees and costs.

Following the hearing, on June 22, 2016, the trial court entered an order granting Food Lion’s motion to amend the June 2015 judgment to add attorney fees and costs pursuant to OCGA § 9-11-68 and awarding to Food Lion attorney fees in the amount of $58,548 and costs in the amount of $4,127.70. This appeal follows.

On appeal, the plaintiffs do not challenge the amount or reasonableness of the fees, nor do they contend that an attorney fees and costs award pursuant to the offer of settlement statute was improper. Instead, the plaintiffs argue that the trial court erred by amending the judgment outside the term of court to include the attorney fees and costs award. We disagree.

Decided June 8, 2017.

Southall Ross Law Firm, Cheryl S. Ross, for appellants.

Hall Booth Smith, Mark W. Wortham, KawaniaB. James, Nathan A. Gaffney, for appellee.

In its motion, Food Lion requested that the trial court amend the judgment pursuant to OCGA § 15-1-3 (6), which provides: “Every court has power . . . [t]o amend and control its processes and orders, so as to make them conformable to law and justice, and to amend its own records, so as to make them conform to the truth.”

It is well established that a trial court has no jurisdiction to change or modify a judgment outside the term of court in which the judgment was entered. After the close of the term of court in which the judgment was entered, it is out of the power of the court to modify and revise it in any matter of substance or in any matter affecting the merits.

In this case, the original judgment was issued during the June 2015 term, and although the order amending the judgment was not entered until the June 2016 term, Food Lion filed the motion to amend in July 2015, during the same term of court as the original judgment. Thus, “the [trial] court. . . had inherent power to amend the judgment because the motion was made in the same term in which the original judgment was entered.”

Judgment affirmed.

Miller, P. J., and Reese, J., concur.

       Food Lion attached supporting documents to the motion for attorney fees and costs, including an affidavit of counsel attesting to the reasonableness of the fees and a detailed invoice for professional services related to work required to defend the case after the plaintiffs declined the settlement offer.

       Defense counsel stated during the hearing that Food Lion already had paid the judgment and one month’s interest.

       Plaintiffs’ counsel advised the court that he was not ready for the hearing because he wished to conduct discovery as to the fees and costs sought by Food Lion, but the trial court elected to proceed, noting that the motions for attorney fees and to amend the judgment had been pending for over 12 months.

       In the order amending the judgment, the trial court concluded that Food Lion’s “[mjotion [is] proper, the fees shown are reasonable, appropriate for the work performed!,] and are only for the period of time from the rejection of [Food Lion’s] offer under OCGA § 9-11 -68 to the entry of judgment.”

       Food Lion does not contend that OCGA § 9-11-60, which provides a method of obtaining relief from judgments in certain circumstances, including those involving clerical errors, applies to this case.

       OCGA § 15-1-3 does not contain a time limitation for moving to amend a judgment. See Floyd v. Springfield Plantation Property Owners' Assn., 245 Ga.App. 535, 536-537 (2) (538 SE2d 455) (2000).

       (Citation and punctuation omitted.) De La Reza v. Osprey Capital, 287 Ga. App. 196, 197 (1) (651 SE2d 97) (2007), quoting City of Cornelia v. Gunter, 227 Ga. 464 (181 SE2d 489) (1971).

       The terms of court for Gwinnett County (in the Gwinnett Circuit) arethe“[f]irst Monday in March, June, and December and second Monday in September.” OCGA § 15-6-3 (20).

        Piggly Wiggly Southern v. Snowden, 219 Ga. App. 148, 151 (7) (464 SE2d 220) (1995). Capitol Cargo v. Port of Port Royal, 261 Ga. App. 803, 804-805 (1) (584 SE2d 54) (2003), relied upon by the plaintiffs, is inapposite because the motion to amend in that case was filed outside the term of court of the original judgment.