Barber v. H & H Muller Enterprises, Inc., A90A1243
| Decision Date | 07 September 1990 |
| Docket Number | No. A90A1243,A90A1243 |
| Citation | 197 Ga.App. 126,397 S.E.2d 563 |
| Parties | BARBER v. H & H MULLER ENTERPRISES, INC. |
| Court | Georgia Court of Appeals |
King, Morriss, Talansky & Witcher, Gerald L. Talansky, Joseph H. King, Jr., Atlanta, for appellant.
Smith, Gambrell & Russell, David A. Handley, John D. Hipes, Atlanta, for appellee.
Appellant/plaintiff, Donald R. Barber, appeals the order of the superior court granting summary judgment to appellee/defendant, H & H Muller Enterprises, Inc. (Muller), in this suit for malicious arrest and prosecution.
On November 24, 1987, a local McDonald's, owned by Muller, was robbed when the assistant or opening manager, Ms. Spurling, and lobby hostess, Ms. Adkins, attempted to open the business. The robber, although apparently wearing sunglasses and a hat, was clearly visible to the two ladies and at times stood about one foot away from Spurling. The women each gave the police a statement that same day in which they individually identified the robber. Their descriptions were substantially consistent, and included inter alia the fact that the perpetrator was a black male, five feet nine inches tall, weighing about 180 to 190 pounds, muscular build, with a three-day growth of beard, in his late twenties or early thirties, medium-brown complexion, full lips, and carrying a small, silver, automatic pistol. They also gave substantially similar descriptions of the clothing the perpetrator was wearing. On November 24, 1987, appellant was 25 years of age, wore a beard, weighed between 205 and 215 pounds and was five feet and eleven inches in height.
Regarding the weapon, the ladies initially informed the police they were not certain whether it was a revolver or an automatic, but later stated they thought it was possibly an automatic. Ms. Spurling also stated that the perpetrator "has been a regular customer over the past few months."
On May 2, 1988, Ms. Spurling saw a man, later identified as appellant, in McDonald's whom she then believed to be the robber. Spurling apparently asked Ms. Adkins if she could identify the perpetrator, and Adkins independently identified the same man, appellant Barber. Ms. Spurling's manager was notified and the police were called. Appellant was taken to the police station where once again both Spurling and Adkins made positive identifications of appellant as the perpetrator. At some point Ms. Spurling indicated that she desired appellant to be prosecuted, and was apparently thereafter asked to swear out an arrest warrant for appellant, which she did. Ms. Spurling's main motivation for going to the police station to identify the perpetrator was "[t]o punish whoever it was that jeopardized [her] life," and she "wasn't trying to hurt anybody, or anything." She "didn't want to convict the wrong person." Ms. Spurling believed she was doing her "civic duty" to sign the warrant. Spurling was taken before the magistrate who held a hearing to determine whether probable cause existed for appellant's arrest. In addition to the testimony of Spurling, the magistrate also had in his possession "the information from the November 24, 1987 robbery available to him," including the "description of the robber" given to the police. The magistrate issued the criminal warrant after finding the existence of "probable cause for arrest of the accused." The police continued their investigation, and appellant made a statement wherein, although denying any complicity in the robbery, he admitted that he has been to McDonald's five or ten times, he had a beard around last Thanksgiving (November 1987) but has since shaved it off, and that he owned a silver .32 caliber revolver, but it was stolen around November or December of 1987. It was subsequently determined that appellant had reported to the police that his silver revolver was stolen December 15, 1987. During his interview, appellant could not provide police with an alibi for the day of the robbery, due to the length of time that had elapsed. Appellant consented to a search of his domicile, which produced negative results.
On May 6, 1988, a preliminary hearing was held; however, Spurling and Adkins arrived late, and consequently, the arrest warrant against appellant was dismissed. After Spurling and Adkins arrived, Detective Burrows elected to explain the next procedure would be that "a package would be sent to the district attorney's office for review, and that the case is not necessarily ended at this point because of the dismissal, and that the district attorney would be getting in touch with her for presentment to the grand jury." Appellant's attorney, Mr. Talansky, was present and asked the ladies how positive they were in their identifications and gave them reasons why he did not believe appellant was a robber. Appellant asserts uncontrovertedly that Adkins became upset and unsure whether appellant was the man who committed the robbery. Spurling, in response to a question from appellant's counsel regarding how certain she was about her identification, remained adamant as to the accuracy of her identification of appellant and expressed her desire to the counsel that prosecution continue. Spurling apparently was upset at this meeting because the warrant was dismissed, as she had been lost in traffic. Spurling and Adkins said "nothing" to Detective Burrows during their conversations with appellant's counsel and Detective Burrows asked them no questions. Although the women did not ask, Burrows informed them of the procedures which "would be transpiring" in the case. Neither Spurling nor Adkins had any further involvement concerning appellant's arrest or prosecution after the May 6 hearing. Held:
1. Appellant asserts that the trial court erred in granting appellee/defendant's motion to strike certain evidence.
Appellant argues that the trial court Examination of page 422 of the record reflects that Burrows was not placed under oath, but was allowed to make a statement for the purpose of explaining why the State was not ready to proceed. The record does not reveal any express striking of only Burrows' explanation.
However, the trial court granted defendant's motion to strike the entire transcript of the DeKalb County Magistrate Court, dated May 6, 1988, together with striking selected paragraphs of the affidavit of Mr. Talansky. The order also reflects on its face that, in addition to considering the motion, the trial court "considered" the oral arguments presented by both parties on January 2, 1990. The record does not contain a transcript of this argument. Rather, appellant amended his notice of appeal to provide that no transcript will be filed. Without the benefit of the transcript of the hearing on the motion to suppress, we are unable to determine accurately the basis for the trial court's rulings, the legal positions actually advanced by the parties, and whether appellant subsequently acquiesced to any ruling of the trial court as to these issues. Hunnicutt v. Hunnicutt, 182 Ga.App. 578, 579, 356 S.E.2d 679; see Vaughan v. Buice, 253 Ga. 540, 322 S.E.2d 282. " 'Clearly it is not the function of the appellate court to prosecute an appeal on appellant's behalf.' " Acker v. Jenkins, 178 Ga.App. 393, 394(1), 343 S.E.2d 160.
2. Appellant asserts that the trial court erred in granting appellee's motion for summary judgment.
(a) The standards for review of motion for summary judgment where the movant is the defendant (Moore v. Goldome,...
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