Franklin v. CONSOL. GOVERNMENT OF COLUMBUS
| Decision Date | 15 February 1999 |
| Docket Number | No. A98A2371.,A98A2371. |
| Parties | FRANKLIN v. CONSOLIDATED GOVERNMENT OF COLUMBUS, Georgia et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
David J. Grindle, Columbus, for appellant.
Clifton C. Fay, Columbus, for appellees.
Donald Franklin sued the Consolidated Government of Columbus and Andrew Tyner, a Columbus police officer, for false arrest, false imprisonment, malicious prosecution, deprivation of his state constitutional rights and violations of 42 USC § 1983. These claims arise out of Franklin's assertion that he was wrongfully arrested for armed robbery and aggravated assault. The trial court granted summary judgment to defendants and Franklin appeals. Because we conclude there was probable cause for the arrest, we affirm.
The standards applicable to motions for summary judgment generally are announced in Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga.App. 594, 595-596, 370 S.E.2d 843 (1988). Further, when reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. Boulware v. Quiktrip Corp., 226 Ga.App. 399, 486 S.E.2d 662 (1997); Goring v. Martinez, 224 Ga.App. 137, 138(2), 479 S.E.2d 432 (1996).
The record shows that on December 13, 1994, around 7:00 p.m., Elizabeth Walker was hit on the back of the head and robbed while she was walking into a bank to make a night deposit for her employer. Detective Cotner of the Columbus Police Department investigated the robbery and prepared a report on the same date. This report described the robber as a white male, 5'6"-5'7" tall, 150 pounds, 25-30 years of age, gray jacket, faded blue jeans, blond hair, red baseball cap, carrying a 9mm or 45 caliber pistol and wearing a black ski mask. The victim told Cotner that she doubted she would be able to identify the robber if she saw him again. The four eyewitnesses also said they would not be able to identify the robber.
Officer Myers interviewed Peggy Muchauk who was working in a convenience store located less than 100 yards from where the robbery occurred. Muchauk explained that a white male wearing a gray sweatshirt and carrying what appeared to be a large handgun underneath his sweatshirt, entered the store in a hurry sometime after 6:00 p.m. on December 13, 1994. She said the man acted nervous and appeared to be trying to avoid the store's video camera.
Two days later, Officer Myers responded to a report of a man acting "very strange" and "talking crazy" in a health club. By the time Myers arrived, the man, who had identified himself as Don Franklin to a health club employee, had left the club. The employee described Franklin as 5'9" or 5'10" tall, 35-40-year-old, white male weighing approximately 200 pounds, blue eyes, uncombed, blond, kinky hair, wearing blue jeans, white tennis shoes, and a large gray sweatshirt.
After recognizing that this description matched Muchauk's description of the man who entered the convenience store on the day of the robbery, Myers passed this information on to Detective Tyner. Tyner found a photograph of Franklin in the police records and placed it in a photographic line-up with four other men. All of the men in the line-up, including Franklin, had a mustache and beard and appeared to be approximately the same age; however, Franklin was the only one in the line-up with light hair.
Officer Tyner showed the photographic lineup to the victim and the witnesses. Three of the witnesses stated they could not identify the robber because he was wearing a mask over his face at the time of the robbery. According to Tyner's report, one of the witnesses said the robber came so close to her that he brushed her arm as he ran past her. This witness identified Franklin and stated that she was certain he was the same person who robbed Walker based on the shape of his face and his profile. The victim also identified Franklin as the man who robbed her based upon the profile and shape of his face. Finally, Muchauk identified Franklin as the man who entered the convenience store on the day of the robbery with a handgun hidden under his shirt.
After these identifications were made, Officer Tyner obtained an arrest warrant and arrested Franklin on December 16, 1994, for aggravated assault and armed robbery. After an evidentiary hearing on December 17, 1994, a Recorder's Court judge found there was "reason to suspect" Franklin committed the armed robbery and aggravated assault. On May 2, 1995, a grand jury returned a true bill charging Franklin with armed robbery and aggravated assault.
During the summer of 1995, Franklin's attorney notified the assistant district attorney in charge of the case about additional records from Western Union which might affect the case. On October 23, 1995, Western Union was ordered to produce certain documents relating to Franklin's alibi. The assistant district attorney received this information from Western Union, but it did not establish an alibi for Franklin.
On January 5, 1996, Franklin's attorney gave the assistant district attorney information which was the first substantial evidence supporting Franklin's alibi. On January 9, 1996, the State entered a Nolle Prosequi based upon this information.
Franklin then brought this Complaint, claiming there was no probable cause to arrest him. The trial court granted summary judgment to defendants and this appeal followed.
1. Franklin contends the trial court erred in granting summary judgment to defendants on his state law claims. We note initially that Franklin has no claim for false imprisonment. This is true because Williams v. Smith, 179 Ga.App. 712, 714, 348 S.E.2d 50 (1986). See also OCGA § 51-7-20. Here, there is no evidence of invalid process.
Likewise, Franklin's remaining state law claims fail because there is no evidence tending to show lack of probable cause or malice in connection with the arrest and imprisonment. OCGA §§ 51-7-1; 51-7-40. The Code defines lack of probable cause as follows: OCGA § 51-7-3. But, what facts and circumstances amount to probable cause is a pure question of law. South Ga. Grocery Co. v. Banks, 52 Ga.App. 1, 182 S.E. 61 (1935). The burden of proof to show lack of probable cause is on the plaintiff and there is nothing to send to the jury if the plaintiff does not raise some evidence creating an issue of fact as to each element of the tort. Pinkston v. City of Albany, 196 Ga. App. 43, 46, 395 S.E.2d 587 (1990).
Here, Detective Tyner had two descriptions that matched the health club employee's description of Franklin. Three people identified Franklin from the photo line-up as the man they saw the night of the robbery. The convenience store clerk identified Franklin as the man who came in her store around the same time as the robbery, acting strangely and with the butt of a gun sticking out from his gray sweatshirt. The victim and one of the witnesses identified Franklin as the robber based upon his profile and the shape of his face. The witness explained that, even though the robber had a light gray stocking over his head, she could still see his face and his profile. None of the witnesses at the photo line-up had indicated they identified Franklin because of his blond hair. Therefore, there was sufficient information to provide probable cause to arrest Franklin.
Moreover, even if we were to assume Tyner did not have probable cause, there is no evidence tending to show malice,...
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