author: Phipps, Chief Judge.

text:
    A13A1000.
    A13A1001.
    A13A1002.
    DELEON-ALVAREZ v. THE STATE. PALACIOS-BARAS v. THE STATE. HERNANDEZ v. THE STATE.
    (751 SE2d 497)
   Phipps, Chief Judge.

At a joint trial in Gwinnett County Superior Court, Jonathan Deleon-Alvarez, Francisco Palacios-Baras, Tito Hernandez and a fourth co-defendant (who is not an appellant in the instant cases) were found guilty by the jury of kidnapping for ransom Jose Wilson Tejada on October 11, 2009. The trial court entered judgments of conviction upon the verdicts. Deleon-Alvarez’s, Palacios-Baras’s, and Hernandez’s respective motions for new trial were denied. Discerning no reversible error, we affirm their convictions.

Evidence adduced at trial showed that in early 2009, the Atlanta High Intensity Drug Trafficking Area (HIDTA) task force began a drug trafficking investigation. As part of that investigation, the Gwinnett County district attorney obtained warrants from the Gwinnett County Superior Court to authorize the interception of calls to and from three targeted cell phone numbers being used by Palacios-Baras. While thereafter monitoring those conversations, officers discerned from statements overheard on October 11,2009 that someone (later determined to be Tejada) had been kidnapped due to an $84,000 drug debt. Based on ping data relating to one of the monitored cell phones, officers concluded that the abducted individual was being held at a particular Floyd County residence.

That evening, several law enforcement officers set up surveillance of the Floyd County residence, which by then had been determined by police to be that of Palacios-Baras. Starting at about 10:45 p.m., officers observed individuals exiting the house and leaving in several vehicles — a white Ford Expedition, a tan Toyota Camry, and a white GMC Yukon Denali — that had been parked at the residence. Concerned that one of the vehicles was carrying a hostage, officers pursued the departing vehicles and quickly effected traffic stops upon two of them.

Having stopped the Expedition, police extracted its three occupants: (i) Tejada, who was seated in the back seat and who immediately exclaimed that his life had been threatened; (ii) Deleon-Alvarez, who was seated in the back seat beside Tejada; and (iii) the driver, the fourth co-defendant (who is not an appellant). When the Camry was stopped, Hernandez, the driver, was the vehicle’s lone occupant.

That night, officers lost sight of the Denali, and also were unable to locate Palacios-Baras. Based on ping data obtained in connection with one of the targeted cell phones that Palacios-Baras was still carrying, however, officers located him the next day. He was a passenger in a vehicle traveling in tandem with the Denali observed at his residence the night before. During a traffic stop of both vehicles, Palacios-Baras was arrested.

The state presented numerous witnesses who testified about Tejada’s abduction, confinement, and rescue, as well as the arrests of the three appellants. The proprietor of a business located in the strip mall where Tejada operated a clothing store testified that, on the afternoon of October 11, 2009, two men approached Tejada in the parking lot. Each man grabbed one of Tejada’s arms “like he was being arrested.” This witness had no further recollection, other than: “They took him.”

Tejada took the stand and gave these details. Between 2:00 and 4:00 p.m. on October 11, two men, with handguns drawn, confronted him as he was exiting his clothing store located in Gwinnett County. They told him to get into a black SUV parked in the parking lot, and he complied. Blindfolded, he was driven for about ten minutes to a house, later determined to be located also in Gwinnett County. The blindfold was removed.

Four or five men were already at that house, including the four co-defendants. Deleon-Alvarez and Hernandez used duct tape to bind Tejada’s hands and legs, and told Tejada that they needed to solve something. Palacios-Baras and the fourth co-defendant were “leaning around, waiting until [Tejada] got bonded with the tape.” About a half-hour after Tejada was brought to that house, he was lifted and placed in a tan Toyota Camry that was parked in the garage. Hernandez and Deleon-Alvarez also got into the Camry, and Tejada was again blindfolded. While Hernandez drove the Camry away, Deleon-Alvarez pressed what felt to Tejada like the tip of a handgun against Tejada’s back. After leaving that house, Tejada did not see again the two men who had nabbed him from the parking lot.

After about two hours of riding, they arrived at another residence, determined later to be located in Floyd County. Tejada was pulled out of the Camry and taken into the house. When the blindfold was removed, Tejada was in a room with all four co-defendants, each of whom held a firearm. Tejada testified that Palacios-Baras “came up to me, telling me that the drugs were stolen and that he was there to clean up the mess.” As Tejada summarized at trial, “They told me that a [drug deal] had gone wrong and that that was the reason why they had kidnapped me.”

Tejada elaborated at trial that, a few days before he was abducted, he had set up a drug deal between two of his store patrons, as a seller and a buyer. The deal involved three kilograms of cocaine. For brokering that deal, Tejada was to be paid $500. But, as Tejada testified, “[T]he drugs had been ripped off.”

Thus, Tejada recalled at trial that when he was in that room with the four armed co-defendants and Palacios-Baras said to him that he (Palacios-Baras) was there to “clean up,” Tejada discerned that they would “basically make sure that either I pay up, or they were going to kill me.” According to Tejada, “They thought I stole the drugs,” and they demanded from him $84,000, which Tejada explained at trial “was the total amount that was owed for the drugs that was stolen.” Tejada recalled that it was Palacios-Baras who “approached me, telling me that I needed to pay up over some drugs that got knocked off from them. And that they didn’t care who knocked them up, they just wanted the money.” Because Palacios-Baras continually pressed him about what he planned to do about “the situation,” Tejada used a phone he was handed to call his wife and then his father-in-law, seeking help to procure the demanded sum.

Shortly thereafter, Tejada testified, one of numerous cell phones at the house rang and, when answered, he overheard the caller warning them to leave the house. Palacios-Baras and Hernandez left the residence first. Deleon-Alvarez and the fourth co-defendant stayed in the house with Tejada and removed the duct tape from Tejada’s hands and legs to enable him to move more quickly. The two threatened to kill Tejada if he made any suspicious movement. They forced Tejada into the back seat of a white Ford Expedition; Deleon-Alvarez sat beside him, aiming a gun at him; and the fourth co-defendant drove the Expedition away.

Soon remarking that cops were following them, the driver increased his speed to outrun the police and tossed a handgun out the window. The patrol car activated its blue lights and siren, pursued the speeding Expedition, then engaged in a maneuver that forced the Expedition to stop. Deleon-Alvarez stashed his gun in the back seat. Additional law enforcement officers converged upon the scene, and the three occupants were extracted from the Expedition and handcuffed. Tejada testified that he told police at the scene that he had been kidnapped from Gwinnett County earlier that day.

According to one of the arresting officers, Tejada also “uttered out something like, they were going to kill me.” The officer saw “grayishwhiteish” glue around Tejada’s wrists. During a search of the Expedition, police found a gun in the glove box and a gun secreted in the back seat. Police found also a gun alongside the road traveled during their pursuit of the Expedition.

Meanwhile, other law enforcement officers effected a stop of the Camry. Hernandez was the driver and only occupant. Officers confiscated $7,100 in cash from his person. A search of the vehicle yielded a loaded “magazine from a handgun,” found near the front passenger seat.

At about 11:20 that same night, other law enforcement officers executed a warrant that had been obtained to search the Floyd County residence. Inside the house, they found, inter alia, “bunched up” duct tape in a trash can, digital scales of a type often used to measure drugs, a pistol, gun holsters, and a bulletproof vest. The next day, police located and arrested Palacios-Baras.

The state also presented the jury with a series of transcripts of (recorded) phone conversations conducted with Palacios-Baras’s targeted cell phones; many of the calls were made on the day in question, October 11, 2009. In one such call, at about 6:00 p.m., Tejada was heard in the background, pleading, “[D]on’t kill me.” And in a subsequent call, Tejada asked his wife to call her father and ask him for $84,000.

Case No. A13A1000 Appeal of Deleon-Alvarez

1. “The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” “It is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” In this criminal case, Deleon-Alvarez’s

motion for new trial was filed before the judgment was entered, making it void. However, the effect of the subsequent entry of a judgment on the jury’s verdict is to render the otherwise void motion one which was only prematurely filed and this prematurity will not serve to deprive the appellate court of jurisdiction to review the merits of the appeal. Consequently, the order denying the motion, as amended, . . . was timely appealed.

2. Deleon-Alvarez challenges his conviction on general grounds, arguing that certain evidence was incompetent.

(a) Citing the Supreme Court of Georgia’s recent decision in Luangkhot v. State, Deleon-Alvarez argues that the wiretapping was illegal and thus any evidence derived therefrom constitutes “fruit of the poisonous tree” and cannot be used to support his conviction.

Deleon-Alvarez did not seek suppression before the trial court, and consequently waived this issue. Furthermore, his contention is unavailing because he lacked the requisite standing to challenge the wiretapping as unlawful.

[Suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. The exclusionary rule is to protect those whose Fourth Amendment rights have been violated.

Moreover, “[t]he only authority for a motion to suppress is [OCGA § 17-5-30], and under the provisions of that statute a pretrial motion to suppress is available only to the person aggrieved by an unlawful search and seizure.”

Deleon-Alvarez makes no assertion that his Fourth Amendment rights were violated. Rather, he acknowledges in his appellate brief that the evidence showed that he was not a subscriber of the phones tapped and that his voice was not heard during any conversation of the phones tapped. As Deleon-Alvarez puts it, “Appellant could not move to suppress the wiretap since the phone was not his.” Because there was no evidence that Deleon-Alvarez was a subscriber of the phones tapped and no evidence that his voice was heard during the wiretapped conversations, he lacked standing to seek suppression of the conversations at issue (and thus any alleged fruit of the poisonous tree) on the ground raised here.

(b) Deleon-Alvarez argues that the evidence stemming from the traffic stop of the Expedition (in which he and Tejada were passengers) was inadmissible, maintaining that the evidence constituted fruit of the poisonous tree (the wiretapping) and asserting that the warrantless stop was unconstitutional. This contention is without merit. Deleon-Alvarez’s assertion that the evidence constituted fruit of the poisonous tree is unavailing to him, and his assertion that the warrantless traffic stop was unconstitutional is belied by the record.

[A] law enforcement officer may conduct a constitutional investigatory stop of an individual when the officer is able to point to specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant that intrusion. That is, under the totality of the circumstances, the investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.

Trial evidence showed that, based on telephone surveillance, the police had discerned that an abducted individual was being held against his will at a particular residence in Floyd County. A warrant had been issued to search that residence. Police had maintained direct observation of the residence and had seen persons exiting the house and leaving in vehicles, including the Expedition, which police then followed at close range prior to effecting the stop. Those circumstances provided a lawful basis for the traffic stop of the Expedition.

(c) Deleon-Alvarez argues that the victim of the kidnapping crime, Tejada, was an accomplice in drug trafficking, and that therefore his felony conviction rested solely on the uncorroborated testimony of an accomplice in violation of then-applicable OCGA § 24-4-8.

In light of that Code section, “the testimony of an accomplice used to convict the [defendant] of a crime must be supported by independent corroborating evidence as to the identity and participation of the [defendant] tending to connect him to the crime.” “The corroborating evidence need not be sufficient by itself to convict [a defendant], nor does the testimony of an accomplice need to be corroborated in every detail.” Rather, slight evidence of corroboration connecting the defendant with the crime satisfies the requirements of OCGA § 24-4-8 and that evidence may be entirely circumstantial. Also, evidence of the defendant’s conduct before and after the crime may give rise to an inference that he participated in the crime.

Pretermitting whether Tejada could have been considered an accomplice of Deleon-Alvarez for purposes of former OCGA § 24-4-8, Deleon-Alvarez’s conviction plainly did not rest solely on Tejada’s testimony. Evidence sufficiently corroborating Tejada’s testimony that Deleon-Alvarez, along with the three co-defendants, kidnapped him for ransom included the following. The proprietor of a business located in the same strip mall as Tejada’s clothing store saw Tejada being forcibly taken away. That evening, on conversations monitored from Palacios-Baras’s telephones, Tejada was overheard pleading for his life; Tejada was also overheard asking his family for $84,000. Later that night, police observed a white Expedition parked at the Floyd County residence they had under surveillance. And when police observed that vehicle depart that residence, they stopped it; Deleon-Alvarez was found in the back seat, along with Tejada and a hidden gun. An officer testified that Tejada had “grayish-whiteish” glue on his wrists and immediately said that his life had been threatened. An ensuing search of the Floyd County residence yielded, inter alia, discarded duct tape. Giving the foregoing, there is no merit in Deleon-Alvarez’s contention that he was convicted in violation of former OCGA § 24-4-8.

(d) Contrary to Deleon-Alvarez’s contention, the evidence adduced against him was sufficient to sustain his conviction of kidnapping for ransom.

3. After the time for filing a brief and enumeration of errors had passed, Deleon-Alvarez filed a supplemental brief, contending that “[t]he trial court erred in admitting evidence from a void wiretap warrant and the evidence based upon the wiretap evidence.” Deleon-Alvarez cites the Supreme Court of Georgia’s decision in Luangkhot

Deleon-Alvarez did not contend in his enumeration of errors that the trial court so erred. Pretermitting whether this contention was timely presented to this court, it is unavailing. Deleon-Alvarez neither filed a motion to suppress such evidence before the trial court, nor did he have standing to raise the Fourth Amendment issue. Consequently, this contention provides no basis for reversing the judgment of conviction entered against Deleon-Alvarez.

4. Deleon-Alvarez has filed a motion to remand this case for a hearing “to determine if the appellant has standing or if trial counsel was ineffective for failing to move for suppression of the wiretaps.” Deleon-Alvarez cites the Supreme Court of Georgia’s decision in Luangkhot, and points out that his motion for new trial was denied prior to that decision. In light of Division 2 (a), however, the motion is denied.

Case No. A13A1001 —Appeal of Palacios-Baras

5. As was the situation in Deleon-Alvarez’s case, Palacios-Baras’s motion for new trial was filed before the trial court entered the judgment of conviction in his case. Notwithstanding, the subsequent entry of the judgment rendered the motion “only prematurely filed and this prematurity will not serve to deprive the appellate court of jurisdiction to review the merits of the appeal. Consequently, the order denying the motion, as amended, . . . was timely appealed.”

6. Palacios-Baras contends that his Sixth Amendment right to confrontation was violated when the trial court sustained objections to his cross-examination of Tejada about a deal Tejada made with the state.

The record shows that Tejada testified at the trial under a grant of testimonial immunity. Accordingly, near the end of the state’s direct examination of Tejada, the jury was apprised as follows:

Q: Mr. Tejada, you understand that you were testifying under a grant of testimonial immunity, correct?
A: Yes.
Q: And you understand—do you understand what that means?
A: Yes.
Q: Do you understand that that means anything you say cannot be used against you? Anything you testify to cannot be used against you in a future prosecution.
A: Yes.

Hence, Palacios-Baras sought to show on cross-examination that Tejada was thereby biased:

Q: And you have never been in — and you have never been indicted for the crime of conspiracy to traffic in cocaine; is that correct?
A: Yes.
Q: Did you conspire to put together a three-kilo cocaine deal...?
A: Yes.
Q: Okay. So you are here, today, to testify without having ever been charged, is basically what I’m getting at. And you have been granted a complete immunity to testify here today.
A: Yes.
Q: And you know that by testifying here today, you do not have to do one minute in prison for anything that you’ve done in the past, correct?

The prosecutor interjected, “Judge, I object. That’s a gross misstatement of what testimonial immunity is, Judge.” The trial court agreed, responding further with an instruction to the jury explaining:

Testimonial immunity means you cannot be prosecuted for what you say in court or any—directly or indirectly. In other words, the evidence that you give in court cannot turn around and then be admitted against you and used against you, should you be charged with a crime, based upon the things that you admit in court. It differs from transactional immunity, which means you cannot be prosecuted for the transaction at all, any time.

Thereupon, Palacios-Baras’s cross-examination of Tejada resumed:

Q: And you have agreed to testify against these men with immunity and you know that you did this to avoid being prosecuted; is that correct?
A: Yes.
Q: And you know that the penalty is 25 years in prison for trafficking in cocaine and [sic] that amount, so you’ll never have to do that.

Again, the prosecutor objected, which objection the court sustained. Further, the court remarked to defense counsel, ‘You’re misleading the jury on two different occasions ... and you know what these terms mean.” The court then gave instructions, first to the jury, then to defense counsel, “I’m instructing the jury to disregard the inaccurate statements that counsel has made — and instruct you not to make those statements again, sir. If you do that again, then we’re going to have to deal with that, sir.” Defense counsel responded, “Thank you, Your Honor. Nothing further.”

On appeal, Palacios-Baras relies on State v. Vogleson to assert that the trial court abused its discretion “when it sustained the State’s objection and refused to allow Appellant to cross-examine the named victim as to the potential sentence he avoided by cooperating with and testifying for the State.” In Vogleson, the Supreme Court of Georgia noted that “[t]he Sixth Amendment... guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him” and held that “the trial court abuses its discretion and commits error when it cuts off all inquiry on a subject on which the defense is entitled to reasonable cross-examination.” As Vogleson recognized, “Defense counsel is entitled to a reasonable cross-examination on the relevant issue of whether the witness entertained any belief of personal benefit from testifying favorably for the prosecution.” But Vogleson went on to explain:

That is not to say, however, that the Confrontation Clause of the Sixth Amendment prohibits the imposition of any limits on the cross-examiner’s inquiry into the potential bias of an adverse witness. . . . [T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.

Here, the trial court was authorized to determine that, as phrased, the questions that drew objections tended to confuse issues relating to the specific type of immunity extended to Tejada. In sustaining those objections, the trial court articulated that concern, issued curative instructions to the jury, and admonished defense counsel not to ask questions that misrepresented applicable law and circumstances. These actions taken by the court did not impose unreasonable limits on Palacios-Baras’s cross-examination of Tejada, nor did the actions cut off all inquiry into the subject of Tejada’s testimonial immunity. Instead, as the record reveals, Palacios-Baras’s counsel thereafter chose not to ask Tejada any additional question(s) that might have exposed to the jury Tejada’s belief concerning “whether the deal [he] struck with the State was sufficiently lucrative to render [his] testimony less creditworthy.” Given the foregoing, the trial court did not abuse its discretion.

7. Palacios-Baras contends that the trial court erred by rejecting his claim of ineffective assistance of counsel.

In order to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,[] [a defendant] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. On appeal, this [c]ourt accepts the trial court’s findings of fact, unless they are clearly erroneous. However, the trial court’s legal conclusions are reviewed de novo.

Palacios-Baras complains that his trial lawyer did not file a motion to suppress evidence derived from the wiretapping, asserting that such “evidence was plainly illegal pursuant to our Supreme Court’s holding in Luangkhot.” In that case, the Court interpreted the Georgia wiretap statute and held that “superior courts do not currently possess the authority to issue wiretap warrants for interceptions conducted outside the boundaries of their respective judicial circuits.” The Court expounded:

[I]n the absence of any state statute expressly granting superior courts the authority to issue wiretap warrants that apply outside their own judicial circuits, we hold that current state law vests the authority to issue wiretap warrants only in those superior courts of the judicial circuits in which the tapped phones or listening post are located.

Palacios-Baras contends that, under that holding, the Gwinnett County Superior Court lacked the authority to issue the wiretap warrant for the interceptions at issue here, which, according to the evidence presented, took place exclusively in the HIDTA “wiretap facility” located in Atlanta. The state concedes that “the wiretap facility where the calls were intercepted was not in Gwinnett County.”

Palacios-Baras’s contention demonstrates no error, however, in the trial court’s rejection of his ineffectiveness claim. After Palacios-Baras was convicted, he was appointed new counsel who, as Palacios-Baras concedes on appeal, did not include on motion for new trial an allegation that trial counsel was effective for failing to challenge the propriety of the underlying warrant. “Because appellant’s allegation of ineffective assistance based on [such failure] was not raised on motion for new trial by appellate counsel who had been appointed following appellant’s conviction, it is waived.”

Even had Palacios-Baras’s post-conviction counsel alleged that trial counsel was ineffective for failing to file a motion to suppress evidence on the ground of an unauthorized warrant, the trial court would have been bound to reject it under this court’s 2012 decision in Luangkhot v. State. Although that decision was overturned in 2013 by the Supreme Court of Georgia, at the 2011 joint trial, Palacios-Baras’s “trial counsel was not ineffective for failing to predict [the 2013 decision].” “Because there was no basis for [a motion to suppress the evidence pursuant to the Supreme Court’s decision in Luangkhot], [Palacios-Baras’s] trial counsel did not perform deficiently in failing to [pursue such a motion].”

Indeed, Palacios-Baras’s claim that “[certain] evidence was plainly illegal pursuant to our Supreme Court’s holding in Luangkhot’ is, on its face, the product of hindsight, which has “no place in an assessment of the performance of trial counsel.”

Hindsight, whether by a court, the defendant, or defendant’s counsel, is a legally insufficient basis for concluding that counsel’s performance at trial was deficient. As the United States Supreme Court has explained, a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.

“There is a rebuttable presumption that counsel exercised reasonable professional judgment.” “The decision of whether to file a motion to suppress is a matter of professional judgment,” and thus “will not form the basis for an ineffective assistance of counsel claim unless it was so patently unreasonable that no competent attorney would have chosen it.” Notably, Palacios-Baras has made neither argument nor assertion that trial counsel’s failure to seek suppression of the evidence fell within that realm. And all things considered, we conclude that it did not.

8. Palacios-Baras has filed a motion to remand this case “for a hearing on trial counsel’s effectiveness consistent with our Supreme Court’s holding in Luangkhot.” Palacios-Baras explains that “[he] did not raise said ineffectiveness in the trial court because Luangkhot was decided after [his] motion for new trial was denied.” Given our holding in Division 7, said motion is denied. The cases cited by Palacios-Baras, Gregory v. State and Wilson v. State, turned on circumstances inapposite to those here and thus provide no support for his argument that he is entitled to a remand to allege ineffective assistance of trial counsel in light of the Supreme Court’s holding in Luangkhot.

Case No. A13A1002 Appeal of Hernandez

9. Hernandez contends that the trial court erred by rejecting his claim of ineffective assistance of trial counsel, asserting that his trial counsel was “ineffective for not making use of available evidence to show that the evidence supported conclusions other than that Appellant was party to the crime of kidnapping for ransom.”

In particular, Hernandez claims that the trial evidence did not “conclusively establish that only four people participated in the criminal enterprise”; that the evidence did not “foreclose someone other than [Appellant as] the driver of the Camry from Gwinnett County to Floyd County”; and that his lawyer did not “offer an explanation for Appellant’s presence at the scene of the crime.” Hernandez posits that his trial lawyer might have advanced theories that his involvement was limited to the Camry — as a prospective buyer of that vehicle, or alternatively, as one serving only to dispose of that vehicle.

Hernandez showed on motion for new trial that, prior to trial, the state provided the defense recordings of numerous intercepted telephone conversations concerning the sales of various vehicles. Hernandez thus posited on motion for new trial that his trial lawyer should have used those conversations to support a defense theory that he was at the Floyd County residence solely to purchase or otherwise dispose of the Camry. On appeal, Hernandez argues that “disposing of the Camry would make Appellant an accessory after the fact. One cannot be guilty both as a principal involved in the crime and as an accessory after the fact.”

But as Hernandez acknowledges in his appellate brief, none of the conversations that he cited on motion for new trial concerned the Camry. And none of the conversations concerned a vehicle transaction involving Hernandez.

Hernandez did not testify at the hearing on motion for new trial, but he called his trial lawyer to the stand. She recounted that, before and after receiving discovery from the state, she consulted with Hernandez to develop a defense strategy. He had claimed to her that he had not been at the Gwinnett County residence and that he had gone to the Floyd County residence only to give “[a particular individual] a ride home. So that was basically his involvement.” The lawyer testified that she thus asked Hernandez why that individual was not in the Camry when it was stopped by police, but “I didn’t get an answer.” Also, the lawyer recalled at the motion for new trial hearing that Hernandez had initially told her that the Camry belonged to his friend; thereafter, he mentioned to her that he was at the Floyd County residence to buy the Camry, “but then when I said, well you told me it was your friend’s, he didn’t really pursue that.”

Even assuming arguendo that alternate strategies were available for Hernandez’s defense, “[i]t cannot be said that counsel was ineffective simply because another attorney might have placed more or a different emphasis on the evidence.” Hernandez’s defense at trial was that the state’s evidence fell short of proving beyond a reasonable doubt that he was guilty. To that end, Hernandez’s lawyer asserted during opening statement that the state’s case would lack evidence — for example, that Hernandez was at the parking lot of Tejada’s store when he was abducted, that he participated in any of the intercepted phone conversations, and that he was found with a firearm when stopped by police in the Camry. Accordingly, defense counsel’s cross-examination of the state’s witnesses elicited testimony to show these and other arguable evidentiary weaknesses and inconsistencies. And during closing argument, Hernandez’s lawyer argued that the state had “tried to paint with a very broad brush so that some of the paint gets on every defendant,” but evidentiary weaknesses and inconsistencies as to Hernandez rendered a guilty verdict unsustainable.

We reject Hernandez’s claim that this trial “strategy was unreasonable to the extent that no competent attorney would have chosen it on Appellant’s behalf.” “There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.”

While other counsel, had they represented appellant, may have exercised different judgment, the fact that the trial counsel chose to try the case in the manner in which it was tried and made certain difficult decisions regarding the defense tactics to be employed with which appellant and his present counsel now disagree, does not require a finding that the representation below was so inadequate as to amount to a denial of effective assistance of counsel.
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.

Because Hernandez’s trial lawyer, after reviewing the evidence and consulting with Hernandez, made a reasonable decision to pursue an all-or-nothing defense strategy, the trial court did not err in rejecting the claim of ineffective assistance of trial counsel.

10. With new counsel on appeal, Hernandez asserts that counsel who represented him on motion for new trial was ineffective for failing to allege that his trial counsel was ineffective for failing to move to suppress the evidence obtained by investigators through the wiretapping. Hernandez cites the Supreme Court of Georgia’s decision in Luangkhot Pretermitting whether this claim is properly before us, we find that it lacks merit.

Decided November 14, 2013

Sharon L. Hopkins, for appellant (case no. A13A1000).

G. Richard Stepp, for appellant (case no. A13A1001).

Matthew D. Crosby, for appellant (case no. A13A1002).

Daniel J. Porter, District Attorney, Michael D. Morrison, Assistant District Attorney, for appellee.

At trial, Hernandez’s lawyer elicited testimony from prosecution witnesses that Hernandez was never identified as an owner or subscriber of the three targeted cell phones monitored, nor was he ever identified as a participant of the intercepted conversations. And on appeal, Hernandez makes no assertion that there was evidence that he had standing to pursue suppression of such evidence. We therefore conclude that Hernandez lacked standing to pursue suppression of the evidence, and that neither his trial counsel nor counsel on motion for new trial performed deficiently for failing to raise the suppression issue.

11. After the time for filing a brief and enumeration of errors had passed, Hernandez filed a supplemental brief, contending that “[t]he trial court erred in admitting evidence from a void wiretap warrant and the evidence based upon the wiretap evidence.” Hernandez cites the Supreme Court of Georgia’s decision in Luangkhot.

Hernandez did not claim in his enumeration of errors that the trial court so erred. Pretermitting whether this contention was timely presented to this court, it is unavailing. As Hernandez acknowledges, he did not file a motion to suppress such evidence before the trial court. This contention, therefore, provides no basis for reversing the judgment of conviction entered against Hernandez.

Judgments affirmed.

Ellington, P. J., and Branch, J., concur.

       OCGA §§ 16-5-40 (concerning kidnapping); 16-2-20 (concerning parties to a crime). The indictment alleged that each of the four co-defendants had committed kidnapping for ransom in Gwinnett County on or about October 11, 2009, in that said accused “did then and there unlawfully abduct Jose Wilson Tejada... and hold said person against his will for ransom.” The jury was instructed on parties to a crime.

       The state adduced evidence that the location of a telephone handset equipped with global positioning system (GPS) can he determined, oftentimes within a radius of three meters.

       None of the co-defendants testified or called any witness.

        Veasley v. State, 272 Ga. 837, 838 (537 SE2d 42) (2000) (citation and punctuation omitted; emphasis in original).

       Id. (citation and punctuation omitted).

        McClanahan v. State, 196 Ga. App. 737 (1) (397 SE2d 24) (1990) (citations and punctuation omitted; emphasis in original), overruled on other grounds, Wilson v. State, 277 Ga. 195, 199 (2) (586 SE2d 669) (2003); see Fairclough v. State, 276 Ga. 602, 603 (1) (581 SE2d 3) (2003) (citing McClanahan, supra, in recognizing that a trial court’s action may render “a prior, otherwise void motion for new trial, one which was only prematurely filed and this prematurity will not serve to deprive the appellate court of jurisdiction to review the merits of the appeal”) (citation and punctuation omitted; emphasis in original).

       292 Ga. 423 (736 SE2d 397) (2013) (concluding that Georgia’s wiretap statute did not authorize superior courts to issue wiretap warrants for interceptions conducted outside the boundaries of their respective judicial circuits).

       See generally Jordan v. State, 211 Ga. App. 86, 91 (1) (c) (438 SE2d 371) (1993) (acknowledging that “the genesis of the ‘poisonous tree’ concept is a violation of the Fourth Amendment”).

       See Romano v. State, 162 Ga. App. 816, 818 (1) (a) (292 SE2d 533) (1982) (holding that, where defendant did not seek to exclude evidence on the ground that it stemmed from a warrant that lacked statutory authority needed for wiretap, issue of whether “wiretaps and information obtained therefrom were ‘fruits of the poisonous tree’ and inadmissible” would not be considered for the first time on appeal); see also Owens v. State, 308 Ga. App. 374, 380 (3) (707 SE2d 584) (2011) (determining that defendant’s failure to elicit ruling on suppression issue by trial court amounted to abandonment of issue).

        Ellis v. State, 256 Ga. 751, 755 (2) (353 SE2d 19) (1987) (citations and punctuation omitted) (applying Fourth Amendment search principles to analyze whether defendant had standing to challenge the electronic surveillance of a co-defendant’s telephone).

        Romano, supra at 819 (1) (a) (citation omitted); see Burgeson v. State, 267 Ga. 102, 106 (3) (d) (475 SE2d 580) (1996) (“The focus of our state statutes [regulating eavesdropping, surveillance, or the interception of communication, OCGA §§ 16-11-62 through 16-11-67] is to protect persons from invasions of their privacy.”) (emphasis supplied).

       See Ellis, supra (determining that defendant had no standing to challenge, under Georgia statutory law, the electronic surveillance of the telephone of his co-defendant, explaining that “[w]hen the voice of an individual is not heard and the tap is not on his premises, he has no standing”); Rogers v. State, 182 Ga. App. 599, 600 (3) (356 SE2d 546) (1987) (concluding that trial court correctly denied appellant’s motion to suppress the results of electronic surveillance by means of a wiretap on the telephone of a co-defendant, explaining that “[s]ince the wiretap was on [co-defendant’s] telephone, appellant had no standing to object to an alleged violation of [co-defendant’s] Fourth Amendment rights” and that “[s]ince none of appellant’s Fourth Amendment rights were violated by the wiretap of [his co-defendant’s] telephone, appellant was not an aggrieved person,” was not entitled to the protection of the exclusionary rule, and thus had no standing to object to the wiretap of co-defendant’s telephone); see generally Jordan, supra (noting that “the exclusionary rule... never applies in the absence of a Fourth Amendment violation”).

       See Division 2 (a), supra.

        Garmon v. State, 271 Ga. 673, 676 (2) (524 SE2d 211) (1999) (citations and punctuation omitted).

       See id. at 677-678 (2) (determining that police were justified in conducting stop of vehicle after it left a residence at which it had been determined there was probable cause that it was then the location of controlled substances and the site of illegal activity, the nature of some of the illegal activity made it reasonable to conclude that there would be contraband in the vehicle leaving the residence, and which stop was conducted within 20 minutes of police monitoring wiretap of telephone at residence and overhearing discussion of illegal activity).

       When Deleon-Alvarez’s trial was conducted in April 2011, OCGA § 24-4-8 (2011) pertinently provided:
      The testimony of a single witness is generally sufficient to establish a fact. However, in... felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness.

        Ladson v. State, 248 Ga. 470, 475 (5) (285 SE2d 508) (1981) (citations and punctuation omitted).

        Terrell v. State, 271 Ga. 783, 786 (3) (523 SE2d 294) (1999) (citations omitted).

        Hinely v. State, 275 Ga. 777, 779 (1) (573 SE2d 66) (2002).

       Id.

       See generally Johnson v. State, 288 Ga. 803, 806 (3) (708 SE2d 331) (2011) (reiterating that it is “not error to submit to the jury the question of whether a witness for the state was or was not an accomplice even where the witness has confessed to being an accomplice and has been jointly indicted with the defendant on trial”) (citation and punctuation omitted).

       See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       See Court of Appeals Rule 27.

       Supra.

       See Campbell a State, 253 Ga. App. 325, 326 (3) (558 SE2d 857) (2002) (“Attempts in a supplemental brief to expand the issues beyond the scope of the enumeration of errors are improper”) (punctuation andfootnote omitted); see also Potter v. State, 283 Ga. 576, 578 (3), n. 5 (662 SE2d 128) (2008) (explaining that, while pursuant to its rule, an appellate court may accept supplemental briefs on issues timely presented, such rule does not provide a mechanism by which a party may circumvent the requirement to timely submit an enumeration of errors); Stokes v. State, 281 Ga. 825, 828 (2) (b), n. 4 (642 SE2d 82) (2007) (“[A] supplemental brief is not the vehicle for raising a new issue of law.”).

       See Division 2 (a), supra.

       See Owens, supra; Romano, supra.

       Deleon-Alvarez filed this motion through counsel obtained after he was convicted.

       Supra.

       Supra (holding that Deleon-Alvarez lacked standing to seek suppression on the ground that the wiretapping was unlawful).

       See Chapman v. State, 290 Ga. 631, 634 (2) (b), n. 2 (724 SE2d 391) (2012) (“The failure to pursue a futile motion does not constitute ineffective assistance.”); see also Lewis v. State, 291 Ga. 273, 282 (7) (731 SE2d 51) (2012) (reiterating that a remand to the trial court for an evidentiary hearing on an ineffectiveness claim is not necessary where “we can determine from the record that the two-prong test for ineffectiveness cannot he met”) (citation and punctuation omitted).

       See Division 1, supra.

        McClanahan, supra (emphasis in original); see Fairclough, supra.

       The trial court entered an order that provided:
      The Court having considered the State’s motion to grant testimonial immunity to Jose Wilson Tejada, it is hereby ordered that the State’s motion is GRANTED____
      [N]o evidence derived directly or indirectly from his testimony during the [underlying trial] may be used against him in any proceeding or prosecution.
      See OCGA § 24-9-28 (a) (2011) (providing, in relevant part, that “no testimony or other evidence . . . may be used against the person in any proceedings or prosecution for a crime or offense concerning which he testified or produced evidence under court order”).

       See Corson v. Homes, 239 Ga. 534 (1) (238 SE2d 75) (1977) (holding that “[former OCGA § 24-9-28] does not authorize a grant of transaction immunity, i.e., immunity from prosecution”); In re Long, 276 Ga. App. 306, 307 (623 SE2d 181) (2005) (distinguishing “transactional immunity’ from “testimonial immunity,” and interpreting former OCGA § 24-9-28 (a) as providing for the latter in that it “prohibits the State from using compelled testimony or evidence derived from that testimony given under an immunity grant, but would allow the State to prosecute the witness using evidence gathered elsewhere”).

       275 Ga. 637 (571 SE2d 752) (2002).

       Id. at 638 (1) (citation and punctuation omitted).

       Id. at 640 (1) (citations omitted).

       Id. at 639 (1) (citations omitted).

       Id. (citations and punctuation omitted); see Younger v. State, 288 Ga. 195, 199 (3) (702 SE2d 183) (2010).

       See Corson, supra; In re Long, supra.

       See generally Young v. State, 290 Ga. 441, 444 (5) (721 SE2d 839) (2012) (“The Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”) (citation omitted; emphasis in original).

        Vogleson, supra at 638, n. 3, quoting Perez v. State, 254 Ga. App. 872, 876 (564 SE2d 208) (2002) (Ruffin, J., concurring specially).

       See Hodo v. State, 272 Ga. 272, 274-275 (4) (528 SE2d 250) (2000) (finding no abuse of discretion, where defendant was allowed to amply explore the state’s witness’s potential for bias, and where defendant asked witness whether he realized that he could be prosecuted and asked witness about any benefit he expected to receive in exchange for his testimony; reasoning that the “mere fact that [defendant] was unable to ask [the witness] to conjecture about possible punishment did not diminish [defendant’s] attempt to show [witness’s] motive for testifying on behalf of the State”). Cf. Vogleson, supra at 640 (1) (finding abuse of discretion, where the trial court refused to permit defense counsel to question a witness who was testifying for the state in exchange for a reduction in prison time about the witness’s belief concerning the amount of prison time he was avoiding by testifying against the defendant, and where the trial court informed defense counsel, “We don’t talk about mandatory sentences. We don’t talk about any of that stuff[,]” and then admonished counsel for ignoring the court’s directive when counsel asked the witness, without referring to “mandatory sentences,” about how much prison time the witness was saving himself by cooperating with the state and testifying against defendant).

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

        Hill v. State, 290 Ga. 493, 499 (7) (722 SE2d 708) (2012) (citations and punctuation omitted).

       Supra.

       Id. at 424-425 (1), citing OCGA § 16-11-64 (c) (2011).

       Id. at 423.

       Id. at 428 (4). The Supreme Court decided Luangkhot on January 7, 2013 (denying motion for reconsideration on February 18, 2013). Thereafter, the General Assembly amended OCGA § 16-11-64 (c), effective February 13, 2013, so as to provide:
      Upon written application, under oath, of the district attorney having jurisdiction over prosecution of the crime under investigation or the Attorney General made before a judge of superior court having jurisdiction over the crime under investigation, such court may issue an investigation warrant permitting the use of a device for the surveillance of a person or place to the extent the same is consistent with and subject to the terms, conditions, and procedures provided for by 18 U.S.C. Chapter 119. Such warrant shall have state-wide application and interception of communications shall be permitted in any location in this state.

      (Emphasis supplied.) See Ga. L. 2013, p. 4, § 1.

       See OCGA § 15-6-1 (20) (providing that Gwinnett Judicial Circuit is composed of the County of Gwinnett).

        Allen v. State, 286 Ga. 392, 399 (5) (b) (687 SE2d 799) (2010) (citation omitted); Lynch v. State, 280 Ga. 887, 890 (3) (635 SE2d 140) (2006) (“Contentions of ineffectiveness not raised on motion for new trial by counsel appointed after conviction are waived.”) (citation and punctuation omitted).

       313 Ga. App. 599 (722 SE2d 193) (2012), overruled, Luangkhot, supra, 292 Ga. 423. The Court of Appeals’ decision was rendered on January 18, 2012. In the instant case, Palacios-Baras’s trial counsel filed a motion for new trial, then post-conviction counsel filed an amendment thereto on February 28, 2012 to allege ineffectiveness of trial counsel. After a hearing thereon, the trial court entered the denial of the (amended) motion on December 14, 2012.

        Hill, supra (citation and punctuation omitted); see Rickman v. State, 277 Ga. 277, 280 (2) (587 SE2d 596) (2003) (noting that “in making litigation decisions, there is no general duty on the part of defense counsel to anticipate changes in the law, and that only in a rare case would it be ineffective assistance by a trial attorney not to make an objection that would be overruled under prevailing law”) (punctuation and footnotes omitted).

        Hill, supra at 499-500 (7) (rejecting claim that trial counsel performed deficiently by failing to request a certain jury instruction, noting that at the time of trial, there was no basis for requesting it); see Chapman, supra.

        Jones v. State, 292 Ga. 593, 600 (7) (d) (740 SE2d 147) (2013); Green v. State, 249 Ga. App. 546, 554 (4) (547 SE2d 569) (2001) (determining that trial counsel’s decision whether to file a suppression motion will not be judged in hindsight).

        Wright v. State, 285 Ga. 428, 435 (6) (677 SE2d 82) (2009) (citation omitted); see Strickland, supra at 689-690 (III) (A).

        Schofield v. Gulley, 279 Ga. 413 (I) (614 SE2d 740) (2005) (citation omitted).

        Green, supra; see Brown v. State, 288 Ga. 902, 909 (5) (708 SE2d 294) (2011) (“There is a strong presumption that counsel’s attention to certain issues to the exclusion of others reflects trial tactics rather than sheer neglect.”) (citation and punctuation omitted).

        Brown, supra (citation and punctuation omitted).

       See Jones, supra; Brown, supra; McClure v. Kemp, 285 Ga. 801, 802-803 (684 SE2d 255) (2009); Green, supra.

       Supra.

       See generally Billings v. State, 293 Ga. 99, 102-103 (2) (745 SE2d 583) (2013) (denying appellant’s motion to remand case to trial court for a second ineffectiveness hearing, despite appellant’s assertion that he had discovered “additional evidence . . . that could provide additional grounds for a claim of ineffective assistance of trial counsel”; a defendant must raise all allegations of ineffectiveness at the earliest practicable moment, and any allegation not raised is deemed waived); Lewis, supra.

       277 Ga. App. 664, 669 (5) (627 SE2d 79) (2006) (remanding case, where appellant raised on appeal allegations of ineffective assistance “which [could not] be resolved by the present record,” and where appellant’s appellate counsel “could not have amended the motion [for new trial to raise ineffectiveness claim] since he was not appointed until after the trial court had ruled on” the motion).

       318 Ga. App. 37, 39 (733 SE2d 345) (2012) (retroactively applying then-recent case law, Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008), to analyze whether the evidence was sufficient to support kidnapping conviction). Compare, however, Chatman v. Brown, 291 Ga. 785-786, n. 1 (733 SE2d 712) (2012) (explaining that “because the rule created in Garza constituted a substantive change in the law with respect to the elements required to prove the crime of kidnapping at the time that the case was decided, the rule became retroactively applicable” to certain cases), with McClure, supra at 802 (explaining that application of the pipeline rule so as to analyze a claim of error under a new procedural rule “is dependent upon whether the claim was preserved for appellate review,” and thus concluding that, because appellant failed to file a motion to suppress evidence, pipeline rule did not apply so as to invoke recent case law relating to the evidentiary issue). See also OCGA § 5-6-36 (a) (pertinently providing, “The entry of judgment on a verdict hy the trial court constitutes an adjudication hy the trial court as to the sufficiency of the evidence to sustain the verdict, affording a basis for review on appeal without further ruling by the trial court.”), cited in Jeffries v. State, 272 Ga. 510, 513 (5), n. 9 (530 SE2d 714) (2000).

        Jones v. State, 282 Ga. 306, 308 (6) (647 SE2d 576) (2007) (citation omitted); see Harris v. State, 280 Ga. 372, 375 (3) (627 SE2d 562) (2006) (although with hindsight counsel could have taken a different approach to witness credibility, the approach he took fell within the wide range of reasonable professional conduct).

       See Ingram v. State, 317 Ga. App. 606, 608 (2) (732 SE2d 456) (2012) (“[Strategic decisions provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.”) (citation and punctuation omitted).

        Strickland, supra at 689 (III) (A) (citation omitted).

        Van Alstine v. State, 263 Ga. 1, 4-5 (426 SE2d 360) (1993) (citation omitted); see Hall v. Terrell, 285 Ga. 448, 455 (II) (E) (679 SE2d 17) (2009) (“There can be more than one reasonable strategy for a defense.”).

        Strickland, supra (citation omitted).

       See Jones, 282 Ga. at 308 (6) (concluding that defense counsel did not render ineffective assistance at trial by not eliciting certain evidence and by not bringing out certain facts in closing argument, even though defendant argued that such evidence would have bolstered his defense; counsel established through cross-examination of state’s witness that there was no physical evidence to corroborate the state’s version of events and, during closing argument, emphasized the absence of such evidence); Ingram, supra (concluding that ineffectiveness claim was properly rejected, where trial counsel made reasonable decision to pursue an all-or-nothing defense strategy based upon his review of the evidence).

       Supra.

       See Lewis, supra (reiterating that “a defendant cannot resuscitate procedurally barred claims of ineffective assistance of trial counsel simply by bootstrapping them to a claim of ineffectiveness of appellate counsel”).

       See Ellis, supra; Rogers, supra; see also Jordan, supra.

       See Chapman, supra.

       Supra.

       See Campbell, supra; see also Potter, supra; Stokes, supra.

       See Division 10, supra.

       See Owens, supra; Romano, supra.


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A13A1433.
    HEWITT v. COMMUNITY & SOUTHERN BANK.
    (751 SE2d 513)
   McFADDEN, Judge.

David Hewitt filed a lawsuit against Community & Southern Bank, alleging breach of contract and other claims based on a loan agreement. Community & Southern answered and counterclaimed to enforce a promissory note. The trial court granted summary judgment to Community & Southern as to Hewitt’s claims and as to the bank’s counterclaim. Hewitt appeals. Because there exist no genuine issues of material fact, we affirm.

On appeal of the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Further, to prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

Aquanaut Diving and Engineering v. Guitar Center Stores, 324 Ga. App. 570, 571 (1) (751 SE2d 175) (2013) (citations and punctuation omitted).

So viewed, the record shows that in September 2006, West Georgia National Bank agreed to open a line of credit for Hewitt in the maximum principal amount of $6 million. A commitment letter set forth the terms of the loan, specifically providing that the loan had a maturity of “Twelve (12) months.” A promissory note perfecting West Georgia’s security interest in the loan likewise had a term of 12 months. First National Bank of Georgia, as successor-in-interest of West Georgia, agreed to renew, extend and modify the loan several times between October 2007 and April 2009. The last renewal included an April 29, 2009 promissory note with a six-month maturity date of October 29,2009. Hewitt failed to repay the loan in full by that date.

On January 29, 2010, First National was closed by the comptroller of the currency, which appointed the Federal Deposit Insurance Corporation (“FDIC”) as receiver. The FDIC subsequently sold, transferred and assigned certain of First National’s assets, including the loan to Hewitt, to Community & Southern Bank. Community & Southern made a written demand to Hewitt for payment of the amounts due under the note.

Hewitt then instituted the instant action against the bank, claiming, among other things, that the initial 2006 loan commitment was supplemented by an oral agreement to give the loan a five-year term. In granting summary judgment to the bank on Hewitt’s breach of contract claim, the trial court noted that the loan commitment plainly set forth a twelve-month term, not a five-year term, and that Hewitt’s claim of terms different from those in the written agreement was barred by the federal D’Oench, Duhme doctrine. This appeal followed.

1. D’Oench, Duhme doctrine.

Hewitt argues that the trial court erred in relying on the D’Oench, Duhme doctrine because it applies only to the FDIC and not to subsequent assignees like Community & Southern. The argument is without merit.

The doctrine arises from the United States Supreme Court’s decision inD’Oench, Duhme & Co. v. Fed. Deposit Ins. Corp., 315 U. S. 447 (62 SCt 676, 86 LE 956) (1942), and “protects bank depositors and federal guarantors of banks by prohibiting reliance on any agreements which are not of record and which would have the effect of misleading creditors or the public authority.” Fed. Financial Co. v. Holden, 268 Ga. 73, 74 (485 SE2d 481) (1997) (citation omitted). Under the doctrine, “oral agreements between debtors and failed banks will not be enforced against banking authorities.” Id. (citation and punctuation omitted). Moreover, “[i]ts protection extends not only to the federal guarantor, but to assignees such as [Community & Southern] .” Id. (citation omitted). Thus, contrary to Hewitt’s argument, the trial court did not err in ruling that the doctrine applies in the instant case to protect the assignee bank from breach of contract claims based on purported agreements not of record. See also First Union Nat. Bank of Fla. v. Hall, 123 F3d 1374, 1379 (III) (B), n. 8 (11th Cir. 1997) (“The D’Oench, Duhme doctrine has been expanded to protect entities to whom the FDIC, acting in its capacity as receiver of failed banks, has transferred assets formerly belonging to a failed bank.”).

Hewitt’s further argument that the doctrine does not apply because the purported five-year term was not merely an oral agreement, but was an express term of the written commitment, is likewise without merit. In support of this argument, Hewitt points to an exit fee clause of the loan commitment, which provided that Hewitt “agrees to pay an exit fee if he decides to finance the loan elsewhere. The fee will start at 1.00% during year one and will decrease by 0.25% each year. The exit fee will be terminated after [Hewitt] has completed four years with [the bank].” Contrary to Hewitt’s argument, this vague language, which fails to identify a specific amount upon which the exit fee percentage is based, does not establish a five-year term for the loan. Rather, it simply attempts to provide some method by which the amount of an exit fee would have been calculated if Hewitt had decided to finance the loan elsewhere. The D’Oench, Duhme doctrine bars “any obligation not specifically memorialized in a written document such that the agency would be aware of the obligation when conducting an examination of the institution’s records.” Baumann v. Savers Fed. Sav. & Loan Assn., 934 F2d 1506, 1515 (IV) (11th Cir. 1991) (citation omitted; emphasis supplied). Here, a five-year term is not specifically memorialized in the loan commitment document. Because Hewitt is unable to point to any “documents that clearly manifested the [purported five-year term,]” we find no error in the trial court’s application of the doctrine. Fed. Deposit Ins. Corp. v. McCullough, 911 F2d 593, 601 (V) (11th Cir. 1990) (citation and punctuation omitted).

2. Commitment to issue letter of credit.

Hewitt also asserted a breach of contract claim based on allegations that First National breached a commitment to issue a letter of credit to secure bond financing for a property development. In 2008, First National issued a commitment letter, identifying an entity known as the 205 Gateway Improvement District as the borrower and Hewitt as the guarantor, and setting forth conditions for a subsequent letter of credit. The commitment letter provided that it would “be terminated and become null and void” if the letter of credit was not issued within 45 days. The letter of credit was not issued.

The trial court granted summary judgment to Community & Southern on the claim for breach of the commitment on the grounds that (1) Hewitt was not a party or third-party beneficiary to the commitment; (2) Community & Southern was not a party to the commitment and did not assume any liabilities from that commitment when it purchased First National’s assets from the FDIC; and (3) the commitment terminated by its own terms 45 days after it issued. On appeal, Hewitt challenges only the first ground for the trial court’s ruling, arguing that he was a party or third-party beneficiary of the commitment.

Grounds that are not attacked as erroneous will not be considered on appeal and are presumed to be binding and correct. An appellant’s failure to attack alternative bases for a judgment results in the affirmance of that judgment. Since each of the alternative grounds which [Hewitt] fails to address is sufficient on its face to support the judgment rendered, and no reversible error has been demonstrated with respect to either of them, the judgment must be affirmed.

Brown v. Fokes Properties 2002, 283 Ga. 231, 233 (2) (657 SE2d 820) (2008) (citations and punctuation omitted).

3. Summary judgment on counterclaim for breach of the note.

Hewitt enumerates that the trial court erred in granting summary judgment to Community & Southern on its counterclaim for breach of the promissory note. Hewitt argues that the bank has not proven the existence of any contract between it and Hewitt because the bank has failed to show that the FDIC assigned it the note. The claim is specious as Hewitt himself, in his verified complaint, alleged that after First National failed, the FDIC was appointed receiver, Community & Southern became the successor-in-interest to First National, and as successor-in-interest it “is bound by the contract between [First National] and [Hewitt].” Moreover, the record contains unrebutted affidavit and documentary evidence showing that the FDIC sold, assigned and transferred to Community & Southern all of First National’s rights and interests in promissory notes, loan documents and all other indebtedness secured by security instruments, including the loan to Hewitt as evidenced by the promissory note. “Accordingly, the trial court did not err in finding that there was a valid assignment of the loan [and note] to [Community & Southern] Bank.” Kensington Partners v. Beal Bank Nevada, 311 Ga. App. 196, 197 (1) (715 SE2d 491) (2011) (citation omitted).

Decided November 14, 2013.

Smith Conerly, Charles S. Conerly, Randall C. Parian, for appellant.

Alston & Bird, Andrew J. Tuck, Christopher A. Riley, for appellee.

4. Promissory estoppel.

Hewitt argues that the trial court’s ruling should be reversed because he is entitled to a promissory estoppel defense to the bank’s enforcement of the note. However, as the trial court correctly ruled, Hewitt’s promissory estoppel defense is based on the same alleged unwritten representations as his breach of contract claim, and thus it is barred by the D’Oench, Duhme doctrine. See Bowen v. Fed. Deposit Ins. Corp., 915 F2d 1013, 1014-1015 (I) (5th Cir. 1990) (promissory estoppel claim defeated by the D’Oench, Duhme doctrine barring use of unrecorded agreements as basis for claims or defenses); Magdaleno v. IndyMac Bancorp, 853 FSupp.2d983, 994-995 (E) (E.D. Cal. 2011) (applying D’Oench to reject plaintiff’s theory of promissory estoppel).

5. Mitigation of damages.

Hewitt claims there is a jury issue as to Community & Southern’s duty under OCGA § 13-6-5 to mitigate its damages as to Hewitt’s breach of the promissory note. However, “OCGA § 13-6-5 does not apply [where, as here, there is] an absolute promise to pay.” American Express Travel Related Svcs. Co. v. Web, Inc., 261 Ga. 480, 483 (3) (405 SE2d 652) (1991) (citations omitted). See also Reid v. Whisenant, 161 Ga. 503, 509-510 (131 SE 904) (1926); Haley v. Oaks Apartments, 173 Ga. App. 44, 46 (325 SE2d 602) (1984) (physical precedent only).

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.


author: Branch, Judge.

text:
    A13A1595.
    BROWN v. THE STATE.
    (751 SE2d 517)
   Branch, Judge.

Marquis Brown was triedby a Clayton County jury and convicted on four counts of child molestation. In this out-of-time appeal from the denial of his motion for a new trial, Brown argues that the evidence is insufficient to sustain his convictions. Brown also asserts that the trial court erred in requiring that the written statement given to police by one of the victims be redacted before it could be introduced at trial, thereby precluding him from impeaching that victim’s credibility. Additionally, Brown alleges error by the trial court in allowing the introduction of testimony that Brown had previously committed acts of domestic violence against the mother of his victims. We find no error and affirm.

“On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict.” (Citation omitted.) Marriott v. State, 320 Ga. App. 58 (739 SE2d 68) (2013). So viewed, the record shows that Brown’s victims, J. C. and T. D., are the daughters of his former girlfriend. Brown lived with the mother and daughters for approximately two years, and during that time he molested J. C. on three occasions and T. D. on one occasion.

J. C. testified that when she was seven years old she was watching television in a bedroom with Brown when Brown moved close to her and fondled her buttocks. He then instructed J. C. that if she told anyone about the incident, he would kill the girl and her mother. J. C. further testified that on another occasion she was watching television when Brown entered the room and began to play a DVD of a pornographic movie. When J. C. closed her eyes to avoid watching the television screen, Brown told her to open her eyes and made her stay in the room and watch the movie twice. And Brown again told J. C. that if she reported the incident to anyone, he would kill her family. On a third occasion, J. C. was lying on her mother’s bed with Brown, with the two of them on opposite sides. Brown suddenly grabbed J. C.’s hand, pulled it toward him and under the covers, and placed the child’s hand on his penis.

J. C.’s older sister, T. D., testified that when she was 12 years old, she returned from a trip to the swimming pool and Brown told her to shower and wash her hair, which she did. After she finished her shower and dressed, Brown came into the bathroom naked and insisted that T. D. had not washed her hair. Although T. D. tried to argue with Brown about this fact, he made her undress and take a second shower to re-wash her hair. As T. D. was showering a second time, Brown, who was still naked, joined T. D. in the shower, stood in front of her, and washed her hair himself.

Brown’s conduct came to light after he and the girls’ mother broke up and he moved out of their house. During a conversation with her mother, J. C. stated that while she missed Brown’s children, she did not miss Brown. When her mother pressed J. C. as to why she did not miss Brown, the child told her about the molestation. The mother then questioned T. D., who also admitted that Brown had molested her.

At trial, J. C. explained that she did not report the incidents at the time they occurred because she believed Brown when he said he would kill her mother and her family if she told anyone. T. D. testified that she did not report the molestation to her mother when it happened because she was afraid her mother “would get beat up again.” She then explained that Brown had beaten her mother on prior occasions.

After the mother learned of the molestation, she contacted police. Officers then interviewed both girls, and both J. C. and T. D. provided police with written statements about the acts of molestation. Additionally, while at home J. C. wrote a second statement about her molestation, which her mother eventually found and gave to police. All three of these written statements were admitted into evidence at trial.

The police arranged for both of the victims to undergo forensic interviews at a local facility specializing in assisting victims of child abuse and molestations. Each of these interviews was recorded, and copies of these recordings were introduced into evidence and played for the jury. Chantsy Watkins, the certified forensic interviewer who conducted the interviews of both J. C. and T. D., testified at trial and was qualified as an expert in the forensic interviewing of children. Watkins opined that the statements made by each of the victims during their respective interviews were consistent with their claims of molestation. She further testified that, in her professional opinion, neither of the victims exhibited any signs of havingbeen coached with respect to their allegations.

Brown testified in his own defense and denied that he had ever touched either of the victims inappropriately or that any of the incidents the victims testified about had happened.

Based on the foregoing evidence, the jury found Brown guilty of four counts of child molestation. Following his conviction, Brown filed a motion for a new trial, which was denied. Brown subsequently filed a motion for an out-of-time appeal, which the trial court granted. This appeal followed.

1. Brown argues that the evidence is insufficient to sustain his convictions for two reasons. First, Brown points to the fact that the only evidence supporting these allegations are the statements and testimony of the victims themselves, and their testimony was contradicted by his own. Georgia law, however, “does not require corroboration of a child molestation victim’s testimony.” (Punctuation and footnote omitted.) Barnes v. State, 299 Ga. App. 253, 254-255 (1) (682 SE2d 359) (2009). Thus, the testimony of the victims, standing alone, was sufficient to support Brown’s convictions. Id. See also Reid v. State, 319 Ga. App. 782, 783 (1) (738 SE2d 624) (2013) (“the testimony of a single witness is generally sufficient to prove a fact, including child molestation”) (citations omitted). Moreover, the evidence showed that when describing Brown’s conduct toward them, the victims were consistent in their outcry statements, their statements to police, their forensic interviews, and their trial testimony. The jury was aware of this consistency and could take that into consideration in evaluating the victims’ testimony. See Kelley v. State, 308 Ga. App. 418, 420-421 (707 SE2d 619) (2011); Brown v. State, 295 Ga. App. 542, 544 (672 SE2d 514) (2009). Additionally, “[ajlthough Brown testified that he did not commit the charged offense [s], the jury was not required to believe Brown’s testimony, nor to disbelieve the [Sjtate’s witnesses.” (Footnote omitted.) Brown, 295 Ga. App. at 544.

Brown also points out that to convict him of child molestation, the State was required to prove that he committed an “immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a) (1). Brown contends that even if the State did prove that he forced J. C. to watch pornography and showered with T. D., the State failed to prove that he engaged in that conduct “with the intent to arouse or satisfy [his] sexual desires.” In support of this contention, Brown cites the victims’ testimony that Brown showed no signs of physical arousal during either of these incidents. This argument is not supported by relevant law.

The child molestation statute “does not require proof of [the defendant’s] actual arousal.” Cline v. State, 224 Ga. App. 235, 236 (1) (480 SE2d 269) (1997) (rejecting defendant’s argument that State failed to prove child molestation where evidence showed he did not obtain or maintain an erection during the charged incidents). Instead, the law requires only that the defendant have acted with the intent to arouse his sexual desires. OCGA § 16-6-4 (a). The question of intent “is peculiarly a question of fact for determination by the jury,” Blanton v. State, 191 Ga. App. 454, 455 (1) (382 SE2d 133) (1989), which may infer a defendant’s intent from the evidence presented at trial. Branam v. State, 204 Ga. App. 205, 206 (1) (419 SE2d 86) (1992). See also OCGA § 16-2-6 (the trier of fact may find the requisite criminal intent “upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted”). Where the jury finds the requisite intent, that finding will not be reversed on appeal provided there is some evidence supporting the jury’s inference. Howard v. State, 268 Ga. App. 558, 559(602 SE2d 295) (2004) (“when a finding that the accused had the intent to commit the crime charged is supported by evidence which is exceedingly weak and unsatisfactory the verdict will not be set aside on that ground”) (citation and punctuation omitted).

We have previously found that evidence showing that the defendant “[sjimply expos[ed] [his] sexual organs to a child without any physical conduct,” even if the child did not actually see those organs, sufficed to prove that the defendant acted with the intent to arouse or gratify his sexual desires. Rainey v. State, 261 Ga. App. 888, 889-890 (1) (584 SE2d 13) (2003). See also Hathcock v. State, 214 Ga. App. 188, 190 (2) (447 SE2d 104) (1994). Accordingly, the jury could infer that when Brown showered in the nude with a naked T. D., he did so with the intent to arouse or satisfy himself sexually. The jury could also infer that Brown acted with the intent to arouse himself when he forced J. C. to watch a pornographic movie with him. See Grimsley v. State, 233 Ga. App. 781, 784-785 (1) (505 SE2d 522) (1998) (exposing children to explicit sexual acts is sufficient to support a conviction for child molestation). Finally, the fact that Brown fondled J. C.’s buttocks and forced her to touch his penis also supports the inference that Brown did these things with the intent to arouse or satisfy himself sexually. See Wiley v. State, 271 Ga. App. 393, 395 (1) (609 SE2d 731) (2005); Andrew v. State, 216 Ga. App. 427, 427 (454 SE2d 542) (1995). Thus, considering Brown’s conduct as shown by the acts testified to by his victims, and especially given that his victims testified that Brown engaged in this type of conduct on more than one occasion, we are satisfied that the evidence showed beyond a reasonable doubt that Brown acted with the intent to arouse or satisfy his sexual desire.

2. In the written statement that she provided to police, T. D. wrote that Brown’s daughter, A. B., told T. D. “how she was so glad that [Brown] was gone [from her house,] because ... he use[d] to beat them or give them whooping[s] for no reason. She [A. B.] said if they [the children] asked a question like[,] ‘Can I get something to drink? [,]’ [Brown] would yell and whoop them.” Prior to trial, the State made a motion in limine seeking permission to enter a redacted version of T. D.’s written statement into evidence; specifically, the State proposed redacting the hearsay regarding statements allegedly made to T. D. by Brown’s daughter. Brown opposed the motion in limine, arguing that he wanted to use T. D.’s hearsay statements to impeach her credibility. In support of this argument, Brown asserted that he planned to call his daughter as a witness at trial and that she would testify that she and T. D. never had the conversation referenced in T. D.’s written statement. The trial court overruled Brown’s objection to the redacted statement, noting that the part of the statement at issue constituted hearsay and that whether T. D. lied about being told that Brown was “mean” was irrelevant to the issues at trial.

On appeal, Brown contends that the trial court erred in allowing the State to offer a redacted version of T. D.’s written statement. The record shows, however, that despite the State’s intent to introduce a redacted version of T. D.’s statement, an unredacted version was admitted at trial. Thus, the question on appeal is whether the trial court erred when, in ruling on the State’s motion in limine, it held that Brown’s daughter would not be allowed to testify as to the alleged hearsay statements contained in T. D.’s written statement.

Even assuming that the trial court’s ruling was erroneous, such error does not provide a basis for reversal unless Brown was harmed by that error. Martinez v. State, 306 Ga. App. 512, 525 (6) (702 SE2d 747) (2010) (a confrontation clause violation, including the “improper denial of a defendant’s opportunity to impeach a witness ... is subject to a harmless-error analysis”) (citation, punctuation and footnote omitted). “The test for harmful error is whether it is highly probable that the error contributed to the judgment.” (Citation, punctuation and footnote omitted.) Id. Here, the State contends that the record does not support the conclusion that Brown suffered harm as a result of the trial court’s ruling. Specifically, the State contends that Brown failed to call his daughter to testify at the motion for new trial hearing and therefore failed to show that her testimony would have impeached T. D. Brown does not dispute that he failed to offer A. B.’s testimony at the hearing below, and in the absence of this testimony Brown could not prove that any testimony A. B. would have offered at trial would have been favorable to him. Accordingly, Brown has failed to show that he suffered harm as a result of the trial court’s refusal to allow A. B.’s testimony. See Roberts v. State, 322 Ga. App. 659, 660 (1) (745 SE2d 850) (2013).

Brown’s claim of error also presents no basis for reversal because he did not ask that a transcript of the hearing on his motion for a new trial be included in the appellate record. The purpose of a hearing on a defendant’s motion for a new trial is to allow the defendant an opportunity to show the court below that some error or deficiency occurred at trial and that as a result, the defendant suffered some harm (or that some harm must be presumed). A necessary component of a new trial hearing, therefore, is the presentation of evidence and legal arguments demonstrating harm to the defendant and/or refuting the defendant’s claim of harm. When a defendant appeals from an order denying his motion for a new trial on the grounds he suffered harmful error, he is necessarily contending that the evidence and legal arguments presented at the motion for new trial hearing did not support the trial court’s findings that no error and/or no harm occurred. Obviously, we cannot review such a claim of error in the absence of a transcript showing what evidence and arguments were presented to the trial court. See Frank v. State, 257 Ga. App. 164, 165 (1) (570 SE2d 613) (2002) (“[t]his court is a court for the correction of errors and its decision must be made on the record and not upon the briefs of counsel”) (citation and punctuation omitted). Thus, because Brown affirmatively declined the opportunity to cause a transcript of the motion for new trial hearing to be included in the record on appeal, we must assume that the evidence (or lack thereof) presented at that hearing supports the trial court’s denial of Brown’s new trial motion. See Orange v. State of Ga., 319 Ga. App. 516, 518-519 (3) (736 SE2d 477) (2013). In other words, we must presume that such evidence supports the conclusion that any error in denying Brown the opportunity to present A. B.’s testimony regarding the hearsay contained in T. D.’s written statement did not harm Brown. Id. Accordingly, we will not reverse the trial court on this ground.

3. Brown contends that the lower court erred in allowing the testimony of T. D. that Brown had previously committed acts of domestic violence against the mother, because such testimony constituted impermissible character evidence. We find no merit in this contention.

“Whether to admit evidence is a matter resting in the trial court’s sound discretion, and evidence that is relevant and material to an issue in the case is not rendered inadmissible because it incidentally places the defendant’s character in issue.” (Punctuation and footnote omitted.) Hernandez v. State, 304 Ga. App. 435, 437 (3) (696 SE2d 155) (2010). Thus, Georgia’s appellate courts have consistently held that evidence of a defendant’s history of violence toward a victim, a victim’s family, or even a witness, is admissible to explain a delay by the victim, her family, or another witness in reporting a crime. See Price v. State, 269 Ga. 373, 374-375 (2) (497 SE2d 797) (1998) (trial court properly admitted testimony concerning defendant’s acts of violence toward his girlfriend to explain the girlfriend’s ten-week delay in reporting the crime); Hernandez, 304 Ga. App. at 437-438 (3) (trial court did not abuse its discretion in allowing mother of child molestation victim to testify as to defendant’s acts of domestic violence; testimony was relevant to explain the mother’s three-month delay in reporting the molestation and the defense contended that mother had “concocted the incident because [she] wanted a divorce”). See also Pruitt v. State, 274 Ga. 708, 710 (2) (a) (559 SE2d 470) (2002) (testimony offered to explain a witness’s long delay in reporting the crime was admissible even though it incidentally placed the defendant’s character in issue, where such testimony was relevant to the jury’s evaluation of the witness’s credibility and the defense alleged that the witness had fabricated the allegations).

Decided November 14, 2013.

Agis R. Bray III, for appellant.

In this case, the testimony at issue was offered for the limited purpose of explaining T. D.’s delay in reporting the act of molestation until after Brown and her mother were no longer in a relationship and Brown had moved out of the family home. As the above-referenced cases demonstrate, this testimony was both probative and relevant, particularly in light of Brown’s contention that the victims had fabricated the incidents of child molestation. Accordingly, the trial court did not abuse its discretion in allowing this testimony.

For the reasons set forth above, we affirm the trial court’s denial of Brown’s motion for a new trial.

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur.

Tracy Graham-Lawson, District Attorney, Frances C. Kuo, Assistant District Attorney, for appellee.

       OCGA § 16-6-4 (a) (1). The jury acquitted Brown on one count of rape, one count of aggravated sodomy, one count of child molestation, and one count of enticing a child for indecent purposes. The trial court directed a verdict of acquittal on one count of aggravated child molestation and one count of enticing a child for indecent purposes.

       We emphasize that the record reflects that Brown was notified of what transcripts were being included in the record on appeal and was offered the opportunity to designate any additional transcripts he felt were necessary to his appeal, including the transcript of the motion for new trial hearing. Brown’s counsel, however, affirmatively represented to the trial court’s clerk’s office that he was not designating any additional transcripts for inclusion in the appellate record.

       Brown also claims that the trial court erred in allowing the testimony of T. D.’s mother on this issue. Our review of the mother’s trial testimony, however, shows that she did not testify as to any acts of violence perpetrated against her by Brown.

       Immediately following T. D.’s testimony on this issue the trial court gave a limiting instruction to the jury, explaining that they could consider this testimony for “the sole purpose of explaining, if it does, the child’s conduct and what steps she took in this incident.”


author: Doyle, Presiding Judge.

text:
    A13A0755.
    MANGRAM v. CITY OF BRUNSWICK et al.
    (751 SE2d 523)
   Doyle, Presiding Judge.

Antonio Mangram filed a petition for writ of certiorari and a complaint for damages against the City of Brunswick (“the City”) and William Weeks, in his official capacity as acting city manager of Brunswick (collectively “the defendants”), seeking (1) review of Weeks’s decision affirming the City’s termination of Mangram’s employment, and (2) employment benefits, including back pay for vacation and sick leave, as well as attorney fees. The defendants filed a motion to dismiss Mangram’s petition based on his failure to timely serve the defendants as required by OCGA § 5-4-6, and the trial court dismissed the entire action with prejudice. Mangram appeals, and, for the reasons that follow, we reverse and remand with direction.

The record shows that on November 4, 2011, the City terminated Mangram’s employment after police found cocaine wrapped in a City uniform shirt at his residence, which conduct the City alleged violated its personnel policy regarding drugs. Mangram sought an evidentiary hearing with Weeks, who upheld the termination on November 15, 2011, following a hearing.

On December 15, 2011, Mangram filed a joint petition for writ of certiorari and complaint for damages in superior court. On January 5, 2012, the superior court sanctioned the writ and directed the clerk of court to issue the writ of certiorari. On February 23, 2012, the defendants filed a motion to dismiss the certiorari petition on the basis that Weeks was not served with a copy of the sanctioned petition for writ of certiorari until February 21, 2012, and the City was not served.

On March 22, 2012, the City filed an answer by special appearance, raising the defense of lack of summons and process. On May 9, 2012, the defendants filed an amended motion to dismiss or, in the alternative, motion for summary judgment, attaching as an exhibit thereto a copy of the City’s Personnel Policy, Section 4.13-2.E, which prohibits “conduct, on or off duty, related to alcohol or controlled substances that would undermine the reputation or efficiency of the City . . . (e.g. sale of drugs),” as well as a copy of Mangram’s signed “Acknowledgment of Alcohol and Controlled Substance Policy and Consent to be Drug-Tested.”

On August 6, 2012, the superior court granted the defendants’ motion to dismiss on the grounds that Mangram failed to serve the City and failed to timely serve Weeks as required by OCGA § 5-4-6, dismissing the entire case, including his claim for damages, with prejudice. The court noted that the record did not contain a return of service or any evidence that the City or Weeks had been served except for their motion to dismiss, which states, “Mr. Weeks, as the respondent, was not served until February 21, 2012, a full 47 days after the papers were filed. The City of Brunswick, as the opposing party, has yet to be served.” The superior court did not rule on the motion for summary judgment.

Mangram appeals, and in a compound enumeration of error, asserts that the trial court erred by dismissing the action and, in the alternative, that even if dismissal of his petition for certiorari was proper, the trial court erred by entering a dismissal with prejudice.

1. Petition for writ of certiorari.

(a) Mangram argues that the trial court erred by granting the defendants’ motion to dismiss his petition for a writ of certiorari for failure to timely serve the City. We remand this issue to the trial court for further consideration.

OCGA § 5-4-6 (b) provides:

The certiorari petition and writ shall be filed in the clerk’s office within a reasonable time after sanction by the superior court judge; and a copy shall be served on the respondent, within five days after such filing, by the sheriff or his deputy or by the petitioner or his attorney. A copy of the petition and writ shall also be served on the opposite party or his counsel or other legal representative, in person or by mail; and service shall be shown by acknowledgment or by certificate of the counsel or person perfecting the service.

Here, it is undisputed that Mangram failed to timely serve the City (the opposite party) or Weeks (the respondent) with a copy of the petition for certiorari within five days as required by OCGA § 5-4-6 (b). On appeal, the defendants assert that the City was actually served 47 days after the petition was sanctioned by the superior court. Because the parties apparently misinformed the trial court regarding who was served and because there is no proof of service in the record, we remand the case to the trial court for a determination of which, if any, party was in fact served. If the trial court concludes that the City was in fact served, albeit late, it must then determine whether Mangram served the City “in a reasonable and diligent manner in attempting to effectuate proper service as quickly as possible.” The petition is subject to dismissal only if the trial court concludes that Mangram failed to do so.

(b) Mangram also argues that even if the trial court properly dismissed the petition for certiorari, it erred by doing so with prejudice. We agree.

The defendants did not file a motion for summary judgment based on expiration of the statute of limitation. Instead, they filed a motion to dismiss Mangram’s petition for certiorari for lack of proper and timely service.

The defense of insufficiency of service of process, along with the other defenses enumerated in . . . OCGA § 9-11-12 (b), except (6), failure to state a claim upon which relief can be granted, are matters in abatement which are not within the scope of the summary judgment procedure, as a motion for summary judgment applies to the merits of the claim or to matters in bar but not to matters in abatement. A dismissal for insufficiency of service of process is a finding by the trial court that service was not perfected in a reasonable and diligent manner within the prescribed statute of limitation and is not a ruling that the plaintiff’s action is, in fact, barred by the running of the statute of limitation. On such a motion to dismiss, the trial court cannot determine on the merits that the plaintiff’s action is barred by the running of the statute of limitation, because such issue is a factual issue and must eliminate the factual issue of tolling.

Decided November 15, 2013.

Walter D. Adams, for appellant.

Nathan T. Williams, for appellees.

Therefore, the trial court erred by dismissing Mangram’s petition for writ of certiorari with prejudice.

2. Claim for damages. Mangram also argues that the trial court erred by dismissing his claim for damages. We agree. The defendants did not seek dismissal of Mangram’s damages claim. Instead, the motion to dismiss requested that the trial court dismiss only his petition for writ of certiorari. Therefore, the trial court erred by dismissing Mangram’s damages claim.

For the foregoing reasons, we reverse and remand the case for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

McFadden and Boggs, JJ., concur.

       The record does not contain any proof of service, and Mangram does not deny his failure to timely serve the defendants with the petition, nor has he offered any explanation therefor. On appeal, the defendants explain in their brief that the motion to dismiss contained a scrivener’s error, and in fact, the City was served through Weeks on February 21, 2012, and Weeks was never served. As set forth below, this is an important distinction that requires us to vacate and remand for further proceedings.

       The defendants did not move for summary judgment on the basis that the statute of limitation had run.

       (Emphasis in original.)

        Wilson v. Ortiz, 232 Ga. App. 191, 192 (1) (a) (501 SE2d 247) (1998) (“If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, the plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible.”).

       As noted above, the defendants subsequently filed a substantive motion for summary judgment (not addressing the statute of limitation), but the trial court did not rule upon it.

       (Punctuation omitted.) Id. at 194 (1) (a).

       See id.

       For the same reasons set forth in Division 1, a dismissal of Mangram’s damages claim in response to a motion to dismiss based on his failure to timely serve the defendants within the prescribed statute of limitation must be without prejudice. See id.