             By order of the Bankruptcy Appellate Panel, the precedential effect
              of this decision is limited to the case and parties pursuant to 6th
              Cir. BAP LBR 8013-1(b). See also 6th Cir. BAP LBR 8010-1(c).

                                 File Name: 06b0004n.06

           BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT

In re: LISA BARCLAY,                )
                                    )
                  Debtor.           )
____________________________________)
                                    )
LISA BARCLAY,                       )
                                    )
                  Appellant,        )
                                    )
       v.                           )             No. 05-8019
                                    )
REIMER & LORBER CO. LPA, et al.,    )
                                    )
                  Appellees.        )
____________________________________)

                       Appeal from the United States Bankruptcy Court
              for the Southern District of Ohio, Eastern Division, at Columbus.
                                        No. 02-50794.

                               Submitted: November 9, 2005

                            Decided and Filed: February 1, 2006

       Before: LATTA, PARSONS, and SCOTT, Bankruptcy Appellate Panel Judges.

                                  ____________________

                                        COUNSEL

ON BRIEF: Jeffrey T. Kalniz, REIMER & LORBER CO., LPA, Twinsburg, Ohio, for Appellees.
Lisa Barclay, Gahanna, Ohio, pro se.
                                     ____________________

                                           OPINION
                                     ____________________

       MARCIA PHILLIPS PARSONS, Bankruptcy Appellate Panel Judge. The debtor appeals
the bankruptcy court’s order denying her motion to impose sanctions on the appellees for their
alleged violations of the automatic stay, which motion was filed almost two years after the alleged
violations occurred and more than a year and one-half after the debtor’s chapter 11 case was
dismissed for cause. The debtor also appeals the bankruptcy court’s subsequent order denying her
motion to vacate the initial order. Because the bankruptcy court did not abuse its discretion in these
matters, we conclude that the bankruptcy court decisions should be AFFIRMED.

                                    I. ISSUES ON APPEAL

       The debtor raises two issues on appeal. First, whether the bankruptcy court properly denied
her motion for sanctions for violations of the automatic stay and her motion to vacate. Second,
whether the bankruptcy judge should be recused from hearing the motions because of an alleged bias
against the debtor.

                      II. JURISDICTION AND STANDARD OF REVIEW

       The Bankruptcy Appellate Panel of the Sixth Circuit (“BAP”) has jurisdiction to decide this
appeal. The United States District Court for the Southern District of Ohio has authorized appeals
to this Panel. The BAP has jurisdiction over core proceedings and issues related to the automatic
stay are core proceedings pursuant to 28 U.S.C. § 157(b)(2)(A), (E), and (O). In re Hughes-Bechtol,
Inc. v. Constr. Mgmt., Inc., (In re Hughes-Bechtol, Inc.), 132 B.R. 339, 348-49 (S.D. Ohio 1991).

       Findings of fact by the bankruptcy court are reviewed under the clearly erroneous standard.
Fed. R. Bankr. P. 8013. A finding of fact is clearly erroneous “when although there is evidence to
support it, the reviewing court, on the entire evidence, is left with the definite and firm conviction
that a mistake has been committed.” Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S. Ct.

                                                  2
1504, 1511 (1985). Conclusions of law are reviewed de novo.          See In re Downs, 103 F.3d 472,
476-77 (6th Cir. 1996).

       The sanction or remedy imposed by the bankruptcy court for violation of the automatic stay
is reviewed de novo for abuse of discretion. In re Del Mission Ltd., 98 F.3d 1147, 1152 (9th Cir.
1996). “An abuse of discretion occurs only when the [trial] court ‘relies upon clearly erroneous
findings of fact or when it improperly applies the law or uses an erroneous legal standard.’” Corzin
v. Fordu (In re Fordu), 209 B.R. 854, 857 (B.A.P. 6th Cir. 1997) (quoting In re Downs, 103 F.3d
at 480-81). A court also abuses its discretion “if the reviewing court has a definite and firm
conviction that the trial court committed a clear error of judgment in the conclusion that it reached
based on all of the appropriate factors.” Belfance v. Black River Petroleum, Inc. (In re Hess), 209
B.R. 79, 80 (B.A.P. 6th Cir. 1997) (citing Bowling v. Pfizer, Inc., 102 F.3d 777 (6th Cir. 1996)).
“The question is not how the reviewing court would have ruled, but rather whether a reasonable
person could agree with the bankruptcy court’s decision; if reasonable persons could differ as to the
issue, then there is no abuse of discretion.” In re M.J. Waterman & Assocs., Inc., 227 F.3d 604, 608
(6th Cir. 2000).

                                            III. FACTS

       The debtor Lisa Barclay filed a voluntary petition for bankruptcy relief under chapter 11 on
January 23, 2002. Four months later, the United States trustee filed a motion to dismiss pursuant
to 11 U.S.C. § 1112(b)(1), (2), and (3), asserting continuing loss to or diminution of the estate and
absence of a reasonable likelihood of rehabilitation, an inability to effectuate a plan, and
unreasonable delay by the debtor that is prejudicial to creditors. After an evidentiary hearing on July
9 and 11, 2002, the bankruptcy court briefly took the matter under advisement and subsequently
entered an opinion and order on July 15, 2002, granting the motion to dismiss for all the reasons
argued by the United States trustee. In its ruling, the bankruptcy court observed that the debtor, who
was proceeding pro se, had scheduled approximately $35,400 in unsecured credit card debt and
$1,378,000 in secured debt, consisting of obligations to 15 different creditors relating to 19 rental
properties and one Florida timeshare. The court noted that even though none of the secured debts
had been scheduled as disputed, contingent, or unliquidated, the debtor began challenging the

                                                  3
validity of the secured debts after filing her petition. According to the court, the debtor responded
to multiple requests for relief from the automatic stay with a barrage of discovery requests directed
toward the lenders; she argued that the notes and mortgages were not valid and that there had been
no perfection by possession; she alleged violations of the Federal Fair Debt Collection Practices Act,
which was inapplicable since the secured debts were not consumer in nature; and she attacked the
banking system and how loan funds were disbursed.

       Based on the evidence presented regarding the debtor’s challenges to the various secured
claims, the bankruptcy court reached the following conclusions:

       The diatribes about the “validity” of the notes and mortgages against the various
       rental properties appear to the Court to be without merit and designed to delay the
       proceedings as long as possible. . . . The challenges were not to any calculations by
       creditors of amounts due under the notes, but were to the validity of all such debts.
       A review by the Court of the claims filed by the various creditors reveals no bases
       whatsoever for such challenges. There are copies attached to these proofs of claims
       of executed notes and mortgages with evidences of recordation data. The debtor’s
       arguments are, frankly, a scheme to attempt to avoid her debts.

       With respect to the specific allegations of the United States trustee’s motion to dismiss, the
bankruptcy court’s findings of fact and conclusions of law included the following:

                Since this case was filed there have been thousands of dollars collected as
       rents from the various properties. Although some of the properties do not have
       tenants or have tenants who do not pay rent, the operating report for May 2002, for
       example, shows $9,317.00 collected in rents. No payments have been made to any
       of the lenders since the case was filed, however, and most of the rent monies appear
       to have been turned over to the debtor’s boyfriend, A. Kafele. Although Mr. Kafele
       was called as a witness, he refused to disclose how any of the rent monies were used.
               ....
               The evidence introduced by the UST clearly established “cause” as
       contemplated by 11 U.S. C. § 1112(b)(1-3). The debtor was not able to satisfy any
       of the concerns raised by the UST which established such cause. The debtor and her
       boyfriend, whose role in this case is still unclear, exhibited no understanding of the
       duties imposed on a debtor-in-possession under § 1107 of the Bankruptcy Code. The
       actions of the debtor and Mr. Kafele since this case was filed have resulted in
       massive diversion of estate property (rent from the properties) for which the parties
       refused to give any explanations. . . .

                                                  4
              There was not testimony about, and apparently no contemplation of, any
       reorganization plan. There also was no comprehension of the requirement and duty
       to account for estate property. There was evidence that a group with which Mr.
       Kafele may be associated occupies one of the properties rent-free. Questions about
       management of the properties were answered only in an evasive manner.
                Frankly, this Court is greatly concerned that a debtor and her “friend” would
       use a federal court in the manner exhibited. The debtor and Mr. Kafele are both well-
       educated people who appear to the Court to be quite aware of what they are doing.
       It is unfortunate they have chosen such a path.
       This case will be, and the same is, hereby DISMISSED.

       On July 24, 2002, shortly after entry of the dismissal order, the debtor filed motions seeking
to vacate the dismissal and for the bankruptcy judge to disqualify or recuse herself. Both of these
motions were denied by the bankruptcy court. In its order on the motion for recusal, the bankruptcy
court noted that the debtor’s motion appeared to be premised on 28 U.S.C. § 455(a), which requires
a federal judge to “disqualify himself in any proceeding in which his impartiality might reasonably
be questioned.” The bankruptcy judge found no reasonable basis for questioning her impartiality,
observing that judicial rulings alone almost never constitute a valid basis for a bias or partiality
motion. The judge also noted that she had no extrajudicial knowledge and no predetermined notions
relating to the validity of the debtor’s position, being unaware of these positions until the hearing on
the motion to dismiss. As explained by the bankruptcy judge:

       The Court listened to the debtor’s arguments and decided that such arguments did not
       have legal merit. The Court then further determined that the debtor’s pursuit of such
       theories was causing unreasonable delay in this case. The Court was further
       disturbed by the reluctance of the debtor and her friend to explain the disposition of
       large sums of money in which creditors of this estate claimed an interest and which
       were property of this bankruptcy estate. Such conclusions are not the result of any
       resistance to a fair inquiry which might produce concern for the impartiality of the
       process, but come from an evaluation of the testimony and evidence presented at the
       hearing.

       The debtor appealed the dismissal of her case but did not appeal the order denying the recusal
motion. By order entered September 30, 2003, the district court dismissed the appeal due to the

                                                   5
debtor’s failure to comply with Federal Rules of Bankruptcy Procedure 8006 and 8009.1 The debtor
appealed this dismissal to the Court of Appeals for the Sixth Circuit, which affirmed the district
court on June 16, 2004. The debtor’s subsequent petition for en banc rehearing was denied by the
Court of Appeals on October 18, 2004.

        All of this procedural history provides the setting for the debtor’s current appeal before this
bankruptcy appellate panel. On January 22, 2004, while her appeal was pending before the Court
of Appeals, the debtor filed in the bankruptcy court (in her dismissed but still open chapter 11 case)
a motion for sanctions for willful violations of the automatic stay against the appellees for two
mortgage foreclosure actions instituted by them on March 7 and April 23, 2002. The debtor alleged
in the motion that the appellees were on notice of her bankruptcy at the time they initiated the
foreclosure actions, that she was forced to prepare and file pleadings to have the actions dismissed,
and that as a consequence of the appellees’ actions, she was “intentionally and willfully harassed,
suffered undue mental anguish, stress, and humiliation (private and public)” and was “defamed and
libeled” by “[t]he filing of the unlawful civil foreclosure actions.” The debtor requested actual and
punitive damages in the amount of $2.5 million.

        In a one-page order entered February 9, 2004, the bankruptcy court denied the debtor’s
motion for sanctions without a hearing. The court stated in its order that the motion had been filed
nearly a year and a half after the case had been dismissed on July 15, 2002, and that, “[i]n all of the
hearings and proceedings before this Court, there was nothing to suggest any willful violation of the
automatic stay by these respondents. Rather, it was the debtor’s own lack of good faith which was
the cornerstone of her bankruptcy case throughout these proceedings.”

        1
          The debtor’s brief on appeal was untimely, and she failed to file a transcript of the
bankruptcy court proceedings designated by her in the appellate record. In its opinion and order,
the district court detailed in great length the procedural history of the case before the district court,
which in its estimation demonstrated the debtor’s “extreme” and “complete indifference to the rules
of this proceeding.” The district court observed that during the course of five extensions of time in
which to file her opening brief, the debtor sought both from the Court of Appeals for the Sixth
Circuit and the United States Supreme Court a writ of mandamus directing the district court to vacate
the bankruptcy court’s order dismissing her bankruptcy case and to stay all foreclosure proceedings
in the state court. According to the district court, both of these petitions were denied.

                                                   6
        Dissatisfied with this conclusion, the debtor filed on February 19, 2004, a motion to vacate
the order denying her motion for sanctions. The bankruptcy court summarily denied the motion by
order entered February 17, 2005. It is this order, in addition to the original February 9, 2004 order
denying the sanctions motion, that the debtor has timely appealed.2 See BAP order entered June 3,
2005 denying appellees’ motion to dismiss this appeal as untimely.

                                          IV. DISCUSSION

        The debtor argues that because she adequately pled a cause of action for violation of the
automatic stay, the bankruptcy court was required to hear, consider, and award damages. With
regard to the bankruptcy court’s reference to the debtor’s delay in filing the sanctions motion and
the debtor’s failure to raise the stay violations in other hearings before the bankruptcy court, the
debtor responds that there is no statute of limitations to a 11 U.S.C. § 362(h) action and that other
proceedings were irrelevant since a motion for violation of the automatic stay is a separate core
matter. Finally, the debtor argues that there was no evidence for the court’s conclusion that her
actions were in bad faith or frivolous.

        Section 362(h) provides that “[a]n individual injured by any willful violation of a stay
provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in
appropriate circumstances, may recover punitive damages.” In order to recover under this statute,
an individual must establish three elements: (1) that a violation of the automatic stay occurred;
(2) that the violation was committed willfully; and (3) that the violation injured the individual
seeking damages. See In re Skeen, 248 B.R. 312, 316 (Bankr. E.D. Tenn. 2000). A review of the
debtor’s sanctions motion indicates that she sufficiently pled a § 362(h) cause of action as she
asserts. An allegation that the appellees commenced foreclosure actions against the debtor’s real
property in state court after her bankruptcy filing indicates that a stay violation may have occurred.

        2
          In their appellate brief, the appellees state that after this appeal was initiated by the debtor,
she filed a subsequent bankruptcy case under chapter 7 on June 8, 2005. Although not raised by the
parties and not otherwise dispositive of the issues before this panel, we question whether the debtor
has standing to pursue this appeal since her claim for sanctions arising out of her chapter 11 case
would constitute an asset of her chapter 7 bankruptcy estate until abandoned by the chapter 7 trustee.

                                                    7
See 11 U.S.C. § 362(a)(4) (a bankruptcy filing stays “any act to create, perfect, or enforce any lien
against property of the estate”). The allegation that the appellees were notified of the debtor’s
bankruptcy filing and nevertheless proceeded with foreclosure supports a finding of willfulness.
See In re Skeen, 248 B.R. at 317 (“The willfulness requirement refers to the deliberateness of the
conduct and the knowledge of the bankruptcy filing, not to a specific intent to violate a court
order.”). And as quoted above, the debtor alleged that she suffered injuries as a result of the
appellees’s foreclosure actions. Id. As a general proposition, upon a finding that a willful violation
of the stay has occurred and that damages resulted, an award of damages is mandatory. In re Taylor,
884 F.2d 478, 483 (9th Cir.1989).

        Furthermore, the debtor is correct that there is no statute of limitations for § 362(h) and that
such actions survive dismissal of the bankruptcy case. See In re Javens, 107 F.3d 359, 364 n.2 (6th
Cir. 1997) (citing Price v. Rochford, 947 F.2d 829, 830-31 (7th Cir.1991)). “Since dismissal of an
underlying bankruptcy case does not automatically strip a federal court of residual jurisdiction to
dispose of matters after the underlying bankruptcy case has been dismissed, exercise of such
jurisdiction is left to the sound discretion of the trial court.” Id. (quoting In re Lawson, 156 B.R. 43,
45 (B.A.P. 9th Cir. 1993) (internal citations omitted)).

        Nevertheless, in this regard, “[a] bankruptcy court, as a court of equity, . . . must be guided
by equitable principles in exercising its jurisdiction.” Matthews v. Rosene, 739 F.2d 249, 251 (7th
Cir. 1984). See also Bank of Marin v. England, 385 U.S. 99, 103, 87 S. Ct. 274, 277 (1966) (“There
is an overriding consideration that equitable principles govern the exercise of bankruptcy
jurisdiction.”); Pepper v. Litton, 308 U.S. 295, 304, 60 S. Ct. 238, 244 (1939) (bankruptcy courts
are courts of equity and law). On occasion, the courts have “applied equitable principles to protect
creditors from unwarranted liability arising from application of Section 362.” Matthews v. Rosene,
739 F.2d at 251 (citing In re Smith Corset Shops, Inc., 696 F.2d 971 (1st Cir. 1982)). See also In
re Soares, 107 F.3d 969, 977 (1st Cir. 1997) (suggesting that the debtor’s bad faith is a relevant
consideration in determining requests for retroactive stay relief); In re Albany Partners, Ltd., 749
F.2d 670, 675 (11th Cir. 1984) (debtor’s lack of good faith in filing chapter 11 petition was a
relevant factor in court’s retroactive stay annulment); Adams v. Hartconn Assocs., Inc. (In re

                                                   8
Adams), 212 B.R. 703, 711-12 (Bankr. D. Mass. 1997) (based on the totality of the circumstances,
including a nineteen-month delay in bringing the action, the court concluded that the debtor was
barred from recovering for the stay violation); Nelson v. Post Falls Mazda (In re Nelson), 159 B.R.
924, 925 (D. Idaho 1993) (noting in dicta that laches may be an appropriate defense to a § 362(h)
action brought after dismissal of the bankruptcy case).

       As stated by the Seventh Circuit Court of Appeals in Matthews:
       Section 362 is designed to benefit a debtor by preventing harassment and frustration
       of rehabilitation efforts through pursuit by creditors in individual actions.
       Suspension of Section 362 automatic stay provisions may be consonant with the
       purposes of the Bankruptcy Act when equitable considerations weigh heavily in favor
       of the creditor and the debtor bears some responsibility for creating the problems.
Matthews v. Rosene, 739 F.2d at 251. In this regard, one court has cautioned that: “there must be
compelling equitable considerations which outweigh the court’s need for enforcement of an orderly
administration of the bankruptcy estate. Such determination must be made on a case by case basis
to insure that there is no suffocation of the stay’s intended policy.” Taxel v. Elec. Sports Research
(In re Cinematronics, Inc.), 111 B.R. 892, 901 (Bankr. S.D. Cal. 1990).

       In the instant case, the bankruptcy court plainly concluded that equitable considerations
outweighed the debtor’s statutory right to recovery under § 362(h). A review of the record in this
case reveals no basis for determining that the court abused its discretion in this matter. As the
bankruptcy court observed, the motion was filed more than a year and one-half after the case was
closed. Thus, there was no risk that denial of the motion would adversely impact the administration
of the debtor’s estate. The court had already conducted an extensive hearing in connection with the
United States trustee’s motion to dismiss, from which the court overwhelmingly concluded that the
debtor was intentionally and deliberately abusing the bankruptcy process in order to avoid paying
her debts and that the actions of the debtor and her boyfriend had resulted in massive diversions of
estate property. Contrary to the argument of the debtor, the bankruptcy court was not required to
divorce itself from the evidence presented at the earlier hearing in ruling on the debtor’s sanctions
motion. Similarly, in determining whether to exercise its jurisdiction, the bankruptcy court was free
to consider the fact that no suggestion of any stay violation had ever come up in any of the myriad

                                                 9
other hearings and proceedings before the court in this case.3 Notwithstanding the debtor’s claim
of error in the bankruptcy court’s ruling, nothing in the record definitely and firmly convinces this
panel that the bankruptcy court erred in denying the debtor’s sanctions motion.

         The panel turns now to the bankruptcy court’s denial of the debtor’s motion to vacate the
order denying the sanctions motion. The debtor did not identify the rule under which she was
proceeding in the motion and merely reargued the merits of the original motion. “Courts have
generally viewed any motion which seeks a substantive change in a judgment as a Rule 59(e) motion
if it is made within ten days of the entry of the judgment challenged.” In re Barger, 219 B.R. 238,
244 (B.A.P. 8th Cir. 1998). Rule 59(e) of the Federal Rules of Civil Procedure, made applicable by
Federal Rule of Bankruptcy Procedure 9023, allows a court to consider a “motion to alter or amend
a judgment.” The Sixth Circuit Court of Appeals has held that “a court should grant such a motion
only ‘if there is a clear error of law, newly discovered evidence, an intervening change in controlling
law, or to prevent manifest injustice.’” Keenan v. Bagley, 262 F. Supp 2d 826, 830 (quoting
GenCorp, Inc. v. Am. Int’l Underwriters Co., 178 F.3d 804, 834 (6th Cir. 1999)). The rule “is not
designed to give an unhappy litigant an opportunity to relitigate matters already decided, nor is it a
substitute for appeal.” Sherwood v. Royal Ins. Co., 290 F. Supp 2d 856, 858 (N.D. Ohio 2003)
(citing Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)).
The debtor bore the burden of showing “that alteration or amendment of the original judgment is
appropriate.” Regions Bank v. Wachovia Bank, NA (In re Goldberg), 248 B.R. 209, 211 (S.D. Ga.
2000).

         In this appeal, the debtor has not articulated a separate argument as to why the court erred
in denying the motion to vacate, other than her original argument that the court erred in denying the
sanctions motion. This panel having concluded that the bankruptcy court did not abuse its discretion
as to the sanctions motion, it similarly finds no error in the bankruptcy court’s denial of the debtor’s
motion to vacate.

         3
        The docket in this case indicates that the bankruptcy court held numerous hearings on
motions for relief from stay and the debtor’s objections to the motions, although the transcripts of
these hearings have not been included in the record.

                                                  10
        The final argument raised by the debtor in this appeal is that if this matter is remanded for
a hearing on the sanctions motion, the bankruptcy judge should be required to recuse herself for bias.
Because remand is not warranted, the debtor’s recusal request is moot, except to the extent the
debtor’s assertion is a separate basis for appeal of the bankruptcy court’s decision. To the extent the
debtor is challenging the court’s refusal to recuse itself, this panel has no jurisdiction since the debtor
did not appeal the bankruptcy court’s order denying the debtor’s recusal motion. See Fed. R. Bankr.
P. 8002(a) (“The notice of appeal shall be filed with the clerk within 10 days of the date of the entry
of the judgment, order, or decree appealed from.”); see also In re Owens, 1997 WL 693555 at *1
(6th Cir. October 31, 1997) (order) (“Cases interpreting Rule 8002 hold that the rule shall be strictly
construed and that timely filing is a jurisdictional requirement.”).

        Furthermore, even if this panel were to entertain a review of the merits of the debtor’s recusal
request, it would find no error in the bankruptcy court’s ruling. The debtor’s sole basis for recusal
is that the bankruptcy judge was biased and prejudiced against the debtor as shown by the court’s
conclusion that the debtor was acting in bad faith. However, as the bankruptcy court noted in
denying the debtor’s motion, “Judicial rulings alone almost never constitute a valid basis for a bias
or partiality motion.” Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994). As
further explained by the United States Supreme Court:

        [O]pinions formed by the judge on the basis of facts introduced or events occurring
        in the course of the current proceedings, or of prior proceedings, do not constitute a
        basis for a bias or partiality motion unless they display a deep-seated favoritism or
        antagonism that would make fair judgment impossible. Thus, judicial remarks during
        the course of a trial that are critical or disapproving of, or even hostile to, counsel,
        the parties, or their cases, ordinarily do not support a bias or partiality challenge.
        They may do so if they reveal an opinion that derives from an extrajudicial source;
        and they will do so if they reveal such a high degree of favoritism or antagonism as
        to make fair judgment impossible.
Id. There is nothing in the record which would indicate that the bankruptcy judge’s opinion of the
debtor was derived from an extrajudicial source or that the judge possessed such a high degree of
antagonism as to make fair judgment impossible. As such, the panel finds no abuse of discretion.

                                                    11
                                     V. CONCLUSION

        The bankruptcy court did not abuse its discretion in denying both the debtor’s motion to
impose sanctions on the appellees for their alleged violations of the automatic stay and her
subsequent motion to vacate. The debtor’s argument concerning recusal of the bankruptcy judge is
likewise without merit for the reasons discussed. Accordingly, the bankruptcy court is AFFIRMED
in all aspects of this appeal.

                                               12


351 F.2d 303
Jack David LOVE, Appellant,v.Ray H. PAGE, Warden, Appellee.
No. 8203.
United States Court of Appeals Tenth Circuit.
October 5, 1965.

Robert D. Inman, Denver, Colo. (Kelley, Inman, Flynn & Coffee, Denver, Colo., on the brief), for appellant.
Jack A. Swidensky, Asst. Atty. Gen. (Charles Nesbitt, Atty. Gen., on the brief), for appellee.
Before MURRAH, Chief Judge, PICKETT and HILL, Circuit Judges.
PER CURIAM.

1
Appellant, who is presently confined in the Oklahoma State Penitentiary, has appealed from a denial of his petition for a writ of habeas corpus.

2
Love was arrested on June 14, 1962, and charged on one count with grand larceny. On June 22 he was taken before a magistrate where he waived a preliminary hearing and was bound over to the district court for trial. Subsequently and on August 3, new charges were filed against him and he was arraigned upon these charges before a magistrate on August 6, at which time he waived a preliminary hearing and was bound over to the district court for trial. Arraignment in the district court was not had until March 1, 1963, and a jury trial upon the charges followed on March 11 and 12. Sentence, after a verdict of guilty, was pronounced on March 23.

3
In the trial court appellant's only ground for invalidating the judgment of conviction and sentence was the delay between his arrest and trial. We agree with the trial court that, under the facts disclosed by the record, this is insufficient to constitute a basis for Federal Court jurisdiction. It is a matter preceding the trial1 and we can find no prejudice to Love at the trial by reason of the delay. Appellant, for the first time, raises other questions concerning the validity of his present confinement. These questions were not presented to the district judge, therefore, we must refrain from passing upon them. In this regard, we are advised by counsel for respondent that the Oklahoma Legislature has recently enacted into law a statute similar to 28 U.S.C. § 2255 which gives to state prisoners a post conviction remedy.2 This new statute is available to appellant for the purpose of seeking relief upon the new grounds urged here for the first time.

4
Affirmed.

Notes:

1
 Klink v. Looney, 10 Cir., 262 F.2d 119; United States ex rel. Sproch v. Ragen, 7 Cir., 246 F.2d 264

2
 22 O.S.Supp.1965, § 1073


                                 FIRST DIVISION
                                 BARNES, P. J.,
                             MERCIER and BROWN, JJ.

                      NOTICE: Motions for reconsideration must be
                      physically received in our clerk’s office within ten
                      days of the date of decision to be deemed timely filed.
                                  http://www.gaappeals.us/rules

                                                                       October 8, 2019

In the Court of Appeals of Georgia
 A19A1282. COLLINS v. THE STATE.

      MERCIER, Judge.

      Following a jury trial, Anthony Collins was found guilty of child molestation

and enticing a child for indecent purposes.1 After his conviction, Collins filed a

motion for new trial, which the trial court denied. Collins appeals, pro se, asserting

seven enumerated errors regarding ineffective assistance of counsel, his recidivist

sentence, evidentiary rulings and his right to self-representation. For the following

reasons, we affirm.

      1
        Collins was found not guilty of rape, two counts of child molestation and
statutory rape.
      Viewed in the light most favorable to the jury’s verdict, the evidence at trial

showed the following. See Green v. State, 302 Ga. 816, 817 (809 SE2d 738) (2018).

On July 28, 2016, the victim,2 the victim’s mother and Collins were at the victim’s

aunt’s house, where the victim lived. Collins asked the victim and her mother to come

outside, where he told them that he would give them a phone if they had sex with

him. The victim refused to have sex with Collins. Collins then asked them to go to an

abandoned house next door, which they reluctantly did around midnight. After they

entered the abandoned house, Collins had sexual intercourse with the mother in front

of the victim. He then touched the victim on her breasts, vagina and buttocks with his

hands underneath her clothing. Collins held the victim down, removed her clothing,

and had sexual intercourse with her without her consent. After the assault was over,

the victim left and, as she was leaving, the victim’s mother and Collins were engaged

in sexual intercourse.

      The victim returned home and fell asleep on her aunt’s bed. A few days later,

the victim revealed to her aunt that she had had sex with Collins in the abandoned

house next to their house. The victim, her aunt and her aunt’s pastor reported the

      2
          The victim was 14 years old at the time of the crimes.

                                           2
assault to the Chief of Police in Vienna, Georgia. At trial, the victim positively

identified Collins as the person who assaulted her.

      The victim’s aunt testified that the victim’s mother was attending a day

program at “[t]he Mentally Retarded Center in Cordele” when they reported the

crimes to the police, that the mother has “mental issues,” and that at the time of trial

the mother was living at the State Mental Hospital in Milledgeville. The mother was

indicted with Collins as a co-defendant. However, she was granted immunity in

exchange for her testimony against Collins at trial.

      Following Collins’s conviction, his trial counsel filed a motion for new trial.

Thereafter, Collins filed a motion to represent himself, which the trial court granted.

Collins then filed an amended motion for new trial and represented himself at the

hearing on his motion.

      Collins appeals the trial court’s denial of his motion for new trial, claiming that

his sentencing as a recidivist was void because the State failed to prove that he was

represented by counsel when one of his prior convictions was entered; his trial

counsel was ineffective in his handling of Collins’s alibi defense and by failing to

adequately argue a motion for directed verdict; the trial court erred by admitting a

prior statement from the victim’s mother; and his right to self-representation

                                           3
following his conviction was violated because he was not furnished copies of the

record.

      1. Collins claims that one of his prior convictions, in which he pled guilty to

a felony burglary charge as a first offender and then had his probation revoked, was

void for the purposes of recidivist sentencing. “Whether a defendant was properly

sentenced as a recidivist under OCGA § 17-10-7 is subject to de novo review.” Frey

v. State, 338 Ga. App. 583, 586 (3) (790 SE2d 835) (2016) (citation omitted).

      The record shows that the State gave Collins’s counsel notice of its intent to

introduce evidence at sentencing in aggravation of punishment, pursuant to OCGA

§ 17-10-7. At sentencing, the State presented certified copies of the indictment, guilty

plea sheet, petition to revoke probation, order of adjudication and sentence on the

prior offense in question, the burglary conviction. In his amended motion for new

trial, Collins argued that the State failed to prove that he had been represented by

counsel in connection with that conviction.

      “Once [Collins] asserted his objection, the State bore the burden of establishing

the validity of the convictions it relied upon in arguing for recidivist treatment[.]”

Tanner v. State, 230 Ga. App. 77, 79 (4) (495 SE2d 315) (1997) (citations omitted).

                                           4
      [T]he State bears the burden of showing both the existence of the prior
      guilty pleas and that the defendant was represented by counsel when he
      entered the pleas. If the defendant was not represented by counsel, the
      State can meet its burden by showing that the defendant waived this
      right. The State can do this by introducing a transcript of the plea
      hearing, a docket entry or another document affirmatively showing that
      the right to counsel was waived. Once the State has shown that the
      defendant either was represented by counsel or waived the right to
      representation, a “presumption of regularity” attaches to the plea
      proceedings and the burden shifts to the defendant to show any alleged
      irregularities.

Beck v. State, 283 Ga. 352, 353-354 (2) (658 SE2d 577) (2008) (citation omitted).

      At the motion for new trial hearing, the trial court admitted into evidence the

transcript of Collins’s guilty plea hearing on the burglary charge. The transcript

established that Collins expressly waived his right to counsel after the trial court

advised him of his right to an attorney. Although Collins was sentenced as a first

offender on the burglary charge, his probation was revoked two years later due to his

violations of the conditions of his probation. See Land v. State, 291 Ga. App. 617,

617-618 (662 SE2d 368) (2008) (“[A] defendant’s first offender sentence does not

become a ‘conviction’ as defined under Georgia criminal law, and cannot be used as

                                         5
a basis for recidivist sentencing in a subsequent criminal action, until the probation

is either revoked or discharged.”) (citations omitted).

      Collins claims that the State failed to show that he was represented by counsel

at his probation revocation hearing, after which he was adjudicated guilty of the

burglary charge and re-sentenced. However, “a probationer has no Sixth Amendment

right to counsel at a revocation proceeding. A probationer has only a more limited due

process right to counsel under the Fourteenth Amendment.” Vaughn v. Rutledge, 265

Ga. 773, 774 (1) (462 SE2d 132) (1995) (citation and punctuation omitted). “[T]he

appointment of counsel to represent a probationer must be determined on a

case-by-case basis and the presence and participation of counsel will probably be both

undesirable and constitutionally unnecessary in most revocation hearings.”3 Id. at 774

(2) (citation and punctuation omitted).

      The petition for an adjudication of guilt and imposition of sentence regarding

Collins’s probation revocation, which he signed, contained an acknowledgment

stating: “I am aware that I may employ legal representation and I have the right to

      3
        Of note, Collins’s probation was revoked on June 7, 2001, prior to the
enactment of OCGA § 17-12-23 (a) (2), which became effective on January 1, 2005
and entitles indigent persons to representation by the circuit public defender at the
probation revocation hearing in a superior court. See Banks v. State, 275 Ga. App.
326, 327 (fn. 3) (620 SE2d 581) (2005).

                                          6
request an attorney be appointed for me. However, the Court is under no legal

obligation to appoint such an attorney at said hearing.” Collins also admitted at the

hearing to committing multiple crimes while on probation and that he failed to

complete his probation requirements. See Banks, supra at 329 (the defendant’s

“admission to having committed another crime creates the very sort of situation in

which counsel need not ordinarily be provided” in a probation revocation hearing.)

(citation and punctuation omitted). The record demonstrates that Collins was apprised

of his right to request an attorney, he admitted to committing the other crimes and he

fails to point to any Fourteenth Amendment due process violations. See Vaughn,

supra. Collins has not established that the trial court erred in considering his prior

felony conviction for the purpose of recidivist sentencing under OCGA § 17-10-7.

Accordingly, the trial court did not err in denying Collins’s motion for new trial

regarding his claim that the trial court erred by sentencing him as a recidivist. See

generally Beck, supra at 354; and Land, supra at 618.

      2. Collins claims that his trial counsel was ineffective for failing to timely file

notice of his alibi defense and to adequately inform him that he should take the stand

in order to assert an alibi defense; and to adequately argue his motion for directed

verdict of acquittal.

                                           7
             To succeed on a claim that counsel was constitutionally
      ineffective, [Collins] must show both that his attorney’s performance
      was deficient, and that he was prejudiced as a result. Under the first
      prong of this test, counsel’s performance will be found deficient only if
      it was objectively unreasonable under the circumstances and in light of
      prevailing professional norms. And under the second prong, prejudice
      is demonstrated only where there is a reasonable probability that, absent
      counsel’s errors, the result of the trial would have been different. A
      “reasonable probability” is defined as a probability sufficient to
      undermine confidence in the outcome. Failure to satisfy either prong .
      . . is sufficient to defeat a claim of ineffective assistance, and it is not
      incumbent upon this Court to examine the other prong.

Green, supra at 817-818 (2) (citations and punctuation omitted). “In reviewing a

lower court’s determination of a claim of ineffective assistance of counsel, an

appellate court gives deference to the lower court’s factual findings, which are upheld

unless clearly erroneous; the lower court’s legal conclusions are reviewed de novo.”

Freeman v. State, 278 Ga. 349, 350 (2) (603 SE2d 214) (2004) (citation omitted).

      (a) Collins argues that he received ineffective assistance of trial counsel

because his attorney failed to file notice of an alibi defense at least ten days prior to

trial. See OCGA § 17-16-5 (a). However, Collins’s former girlfriend did testify at trial

for the defense and provided him with an alibi. She testified that Collins arrived at her

                                           8
house at approximately 9:00 p.m. on the night of the assault and that he did not leave

her house until the following morning. Therefore, Collins fails to demonstrate any

prejudice suffered by the late filing. See generally Jones v. State, 266 Ga. App. 679,

682-684 (2) (598 SE2d 65) (2004).

      As to Collins’s claim that he was harmed by being inadequately informed

regarding a potential benefit from testifying on his own behalf as to his alibi defense,

he failed to proffer evidence at his motion for new trial hearing showing what he

would have said had he testified at trial. Furthermore, at the close of the State’s

evidence the trial court advised Collins of his right to testify on his own behalf. The

court then went into recess, during which time Collins conferred with his trial

counsel. Following the recess, Collins told the court that he did not want to testify.

Having failed to present more than bare assertions that his testimony would have

supported his alibi defense, Collins cannot show that his counsel was ineffective for

allegedly failing to adequately inform him of a possible advantage of testifying on his

own behalf regarding his alibi. See generally Gadson v. State, 252 Ga. App. 347, 352

(11) (b) (556 SE2d 449) (2001).

      (b) Collins argues that his trial counsel was ineffective because he failed to

“utter any reason or cause” to support his motion for directed verdict of acquittal.

                                           9
However, the trial transcript shows that when Collins’s trial counsel made the motion

for directed verdict, he stated that the evidence presented by the State was insufficient

to support the verdict. The trial court denied the motion as to all of the counts, with

the exception of Count 4, the statutory rape charge, for which the court reserved

ruling. Following the close of the evidence from defense, counsel for Collins again

moved for directed verdict as to all counts which the trial court denied (including

Count 4).

      Again, Collins has failed to show any prejudice from the alleged errors. In light

of the evidence presented at trial as discussed above, additional argument by trial

counsel to support the motion was “unlikely to have swayed the trial judge.” Medrano

v. State, 315 Ga. App. 880, 883 (2) (729 SE2d 37) (2012).

      3. In three enumerated errors, Collins claims that the trial court erred by

admitting State’s Exhibit 7, an audio recording of an interview of the victim’s mother.

We review the trial court’s ruling on the admissibility of evidence for a clear abuse

of discretion. Cruz v. State, 347 Ga. App. 810, 813 (2) (821 SE2d 44) (2018).

      At trial, the victim’s mother testified that Collins asked her and the victim to

go outside because he had a phone and a necklace for her. However, once they were

outside Collins did not give her a phone, and instead he asked the victim and her

                                           10
mother to go into the vacant house. After they entered the vacant house, Collins told

the victim to remove her clothes and he began to have sexual intercourse with her.

The mother testified that she told Collins to get off of the victim, but that she did not

want to hit him because then she would “go to jail.” She testified that she “just went

and called the police” on a cell phone and reported what happened.

       The prosecutor then asked the mother if she has problems with her memory, to

which she said she did. She testified that she was interviewed by the police chief

closer in time to when the assault happened, and her memory of the incident was

better at that time than at the time of the trial.

       During the police chief’s testimony, the prosecutor tendered into evidence the

audio recording of the mother’s interview. Collins’s counsel objected arguing that the

mother was “declared mentally incompetent” to stand trial and that he had no way to

effectively cross-examine her on her out-of-court statement. The State argued that

witnesses are presumed to be competent, that the interview was a prior inconsistent

statement, and that the mother was available for cross-examination. The trial court

admitted the recording over objection, but ruled that the mother needed to be

available in the event that Collins’s counsel wanted to examine her further. The

recording was then played for the jury.

                                            11
      Here, the mother testified to her involvement and her prior statement was

inconsistent in many respects with her in-court testimony. See Brown v. State, 266

Ga. 723, 724-725 (2) (470 SE2d 652) (1996).4 Furthermore, Collins was given the

opportunity “to cross-examine [the] forgetful witness about [her] bias, [her] lack of

care and attentiveness, and even the very fact that [she] has a bad memory.” Id. at 725

(2) (citation and punctuation omitted). On cross-examination Collins asked the

mother if she was “on medication” at the time of the trial and at the time she gave the

recorded statement. He also questioned her about the inconsistences between her trial

testimony and her recorded statement. Thus, Collins was given ample opportunity to

cross-examine the mother about her “memory loss and the reasons for it[.]” See id.

Accordingly, the trial court did not abuse its discretion by admitting the prior

inconsistent statement. See id; see also Thompson v. State, 304 Ga. 146, 150-151 (6)

(816 SE2d 646) (2018).

      4. Collins argues that his right to self-representation was violated because he

was not provided with copies of the trial court record. Collins states that he had to

      4
       While Brown was decided under the former evidence code, the new evidence
code “retain[s] Georgia’s former approach to a testifying witness’s out-of-court
statements.” Chambers v. State, ____ Ga. App. ____ (1) (A19A1117, decided Sept.
9, 2019) (citations omitted).

                                          12
request the trial record from the trial court clerk multiple times. However, he admits

that he ultimately received the record before the motion for new trial hearing. Of note,

Collins’s appellate brief regarding this alleged error contains multiple blank spaces,

where no record citations were filled in and trails off mid-sentence. “Enumerations

should specifically and definitely set out the error complained of so that this court

will not be compelled to grope in ascertaining what the error is.” Bone v. State, 283

Ga. App. 323, 324 (2) (641 SE2d 545) (2006) (citation and punctuation omitted).

      As best as we can ascertain, Collins seems to argue that he should have

received the trial transcript earlier than he did. However, he fails to point to any un-

granted request for additional time to prepare for the motion for new trial hearing or

to draft his appellate brief, and he has not demonstrated how having additional time

to prepare would have benefitted him. Without a showing that Collins was harmed,

this contention is without merit. See generally Sims v. State, 273 Ga. App. 723, 726

(6) (615 SE2d 785) (2005).

      Judgment affirmed. Barnes, P. J., and Brown, J., concur.

                                          13


562 N.W.2d 734 (1997)
1997 ND 64
Sharon and Louis LINDERKAMP, Plaintiffs and Appellees,
v.
Ray and Gertha HOFFMAN, Defendants and Appellants.
Civil No. 960174.
Supreme Court of North Dakota.
April 22, 1997.
Robert J. Snyder (argued), of Snyder Coles Lawyers, Bismarck, for plaintiffs and appellees.
Michael Geiermann (argued), of Rolfson Schulz Lervick & Geiermann Law Offices, P.C., Bismarck, for defendants and appellants.
MARING, Justice.
[¶ 1] Ray and Gertha Hoffman have appealed a judgment requiring them to convey real property to Sharon and Louis Linderkamp. We conclude that the parties' underlying agreement is not specifically enforceable and we reverse the judgment.
[¶ 2] To sell an apartment building they owned, Hoffmans listed it with a real estate agent who placed it on the Multiple Listing Service. Through Donna Haas, another real estate agent, Linderkamps submitted a written offer of $87,500, to be paid as follows:

*735 Buyer to obtain loan in the amount of $63,500 from lending institution of their choice. Seller to carry $24,000 at 8.69% interest amortized over 30 years to balloon in 5 years. Seller may pay off Contract early without penalty.
The offer specified that the property was to be conveyed by warranty deed, with closing to occur on or before April 15, 1993. Hoffmans executed their acceptance of the offer on March 25, 1993. Hoffmans did not attend the closing scheduled for April 15, 1993, and refused to convey the property.
[¶ 3] Linderkamps sued Hoffmans for specific performance of the parties' purchase agreement. Ray Hoffman asserted that he intended to have a first mortgage on the property for $24,000 and that his would be the only lien on the property. The trial court found Hoffmans' "reservation about financing was not expressed prior to the parties agreeing, in writing, to the terms of the sale." The trial court found Hoffmans had "unjustifiably refused to convey the property" and ordered specific performance of the purchase agreement. The judgment entered required Hoffmans to immediately convey the property to Linderkamps. Hoffmans appealed.
[¶ 4] The remedy of specific enforcement of an agreement is limited by §§ 32-04-12 and 32-04-13, N.D.C.C.[1] Section 32-04-12, N.D.C.C., provides, in part:

32-04-12. What obligations cannot be enforced specifically. The following obligations cannot be enforced specifically:
* * *
5. An agreement, the terms of which are not sufficiently certain to make the precise act that is to be done clearly ascertainable.
Section 32-04-13, N.D.C.C., provides, in part:

32-04-13. When specific performance cannot be enforced against one. Specific performance cannot be enforced against a party to a contract in any of the following cases:
1. If the party has not received an adequate consideration for the contract.
2. If it is not as to that party just and reasonable.
[¶ 5] Specific performance rests in the sound discretion of the trial court, Beebe v. Hanson, 40 N.D. 559, 169 N.W. 31, 32 (1918), "and we will not interfere with that discretion unless we are shown that it was abused." Wolf v. Anderson, 334 N.W.2d 212, 215 (N.D.1983). "The person seeking specific performance has the burden of proving he is entitled to it." Id. at 215. A party seeking specific performance of a contract "is held to a higher standard than if he merely asks for money damages for breach of the contract." Sand v. Red River Nat'l Bank & Trust Co., 224 N.W.2d 375, 378 (N.D.1974). Specific performance is an equitable remedy, and equitable principles must be followed in its use. Wolf, 334 N.W.2d at 215. Specific performance may be denied if a contract is not fair, reasonable, and based on adequate consideration. Sand, 224 N.W.2d at 378. "And specific performance of an agreement must be denied when its terms are not sufficiently certain to make the precise act which is to be done clearly ascertainable." Beebe, 169 N.W. at 32. To be specifically enforceable, "`[a] contract must fix the price or consideration clearly, definitely, certainly, and unambiguously, or provide a way by which it can be fixed with certainty.'" Mandan-Bismarck Livestock Auction v. Kist, 84 N.W.2d 297, 301 (N.D.1957) (quoting 81 C.J.S., Specific Performance § 34). To be specifically enforceable, a contract "`must be complete in itself ... at least with respect to its essential and material terms ... The court cannot supply an important omission or *736 complete a defective contract for the purpose of specific performance.'" Id. at 302 (quoting 81 C.J.S., Specific Performance § 35).
[¶ 6] Sharon Linderkamp testified: (1) "That the property would be used as collateral for the loan;" (2) The bank was "always" to be in "a first position;" (3) Hoffman "was going to hold a second mortgage" for his $24,000; (4) "I knew the bank was going to be in first position because they carried the sixty-three, five" and (5) The bank required that it "be in a first position" or it would not lend the money. Thus, she contended the financing provisions in the offer contained in the purchase agreement signed by the parties subordinated Hoffmans' interest to that of the lender providing the $63,500 to be paid to Hoffmans.
[¶ 7] "It is widely recognized that a subordination agreement is unfavorable to the seller and can greatly increase the risk the seller incurs in the transaction." Stenehjem v. Kyn Jin Cho, 631 P.2d 482, 488 (Alaska 1981). When a seller subordinates his interest to a lender, the terms of the first mortgage to the lender become important elements of the seller's contract with the buyer. A limit on the interest rate, for example, "limits the risk which the seller undertakes in subordination since it may prevent commencement of a construction project with an unsuitably high risk of failure. The interest rate also affects the size of the payments on the loan, which may affect the seller's ability to take over the project." Id. at 493.
[¶ 8] Courts have frequently denied specific performance of land contracts with subordination clauses containing indefinite terms. Anno., Specific Performance: Requisite Definiteness of Provision in Contract for Sale or Lease of Land, That Vendor or Landlord Will Subordinate His Interest to Permit Other Party to Obtain Financing, 26 A.L.R.3d 855 (1969).
The clearest cases for the denial of specific performance of a land contract because of the indefiniteness of the terms of a provision by which the vendor or lessor agrees to subordinate his interests to a lien to be created by the purchaser or lessee are those in which there is no provision at all made as to the nature, amount, or other terms of the prior lien to be subsequently created.
Anno., 26 A.L.R.3d at 860.
Later California cases ... have ... held that the subordination arrangements must be stated with sufficient definiteness and clarity to afford some reasonable protection to the vendor's interests and not leave his security altogether subject to the purchaser-developer's discretion, the determinative question being whether the contract is, as to the defendant, sufficiently "just and reasonable" to merit enforcement.
Anno., 26 A.L.R.3d at 865.
The courts rejecting the claim of indefiniteness have tended ... to be satisfied with contract terms which have fixed at least the maximum limits of the obligation to which the seller's interest was to be subordinated and the most important terms as to interest and terms of the loan, or at least made some provision for fixing such loan terms other than by future agreement of the buyer and seller.
Anno., 26 A.L.R.3d at 868.
[¶ 9] In Magna Devel. Co. v. Reed, 228 Cal.App.2d 230, 39 Cal.Rptr. 284, 289 (1964), the appellate court upheld the trial court's determination that specific enforcement was not available for a contract that was uncertain and indefinite because it contained a subordination provision that "does not state the amount of the construction loan which would be placed on the property, nor any of its terms, nor when it would become due, nor the rate of interest it would bear, nor the terms or conditions of the first deed of trust to secure such loan." As Chief Justice Traynor explained in Handy v. Gordon, 65 Cal.2d 578, 55 Cal.Rptr. 769, 770-71, 422 P.2d 329, 330-31 (1967):
[A]n enforceable subordination clause must contain terms that will define and minimize the risk that the subordinating liens will impair or destroy the seller's security. (Citations omitted.) ... Without some such terms ... the seller is forced to rely entirely on the buyer's good faith and ability as a developer to insure that he will not lose both his land and the purchase price.... The personal liability alone of *737 the vendee would not constitute sufficient protection to the vendor to permit specific performance. (Citations omitted.)
In affirming the trial court's determination that the subordination clause lacked essential terms and was too uncertain to be enforced, the court further explained:
Thus, the contract leaves defendants with nothing but plaintiff's good faith and business judgment to insure them that they will ever receive anything for conveying their land. Such a contract is not as to them "just and reasonable" within the meaning of Civil Code, section 3391.
55 Cal.Rptr. at 771-72, 422 P.2d at 331-32.
[¶ 10] The subordination clause in the parties' agreement does not specify the interest rate or term of the loan Linderkamps were to receive. It does not spell out any default provisions. Thus, it lacks terms important to Hoffmans. Under the parties' agreement, Linderkamps were getting the property with nothing down and Hoffmans were bearing all the risk of loss if Linderkamps agreed to onerous loan terms and were unable to meet the obligation, or if Linderkamps defaulted due to a downturn in the market.
[¶ 11] The subordination agreement is not "stated with sufficient definiteness and clarity to afford some reasonable protection to the [Hoffmans'] interest," Anno., 26 A.L.R.3d at 865, does not fix "important terms as to interest and terms of the loan," Anno., 26 A.L.R.3d at 868, and does not "define and minimize the risk that the subordinating lien[ ] will impair or destroy the seller's security," Handy v. Gordon, 55 Cal.Rptr. at 770-71, 422 P.2d at 330-31. Under the purchase agreement, Hoffmans are "forced to rely entirely on the buyer's good faith and ability as a developer to insure that [they] will not lose both [their] land and the purchase price." Id. at 771, 422 P.2d at 331. The contract gives Hoffmans only Linderkamps' "good faith and business judgment," id., to protect them against loss.
[¶ 12] We conclude that the purchase agreement executed by Hoffmans and Linderkamps is "not sufficiently certain to make the precise act that is to be done clearly ascertainable," § 32-04-12(5), N.D.C.C., and is not, as to Hoffmans, "just and reasonable," § 32-04-13(2), N.D.C.C. Linderkamps are, therefore, not entitled to court-ordered specific performance of the purchase agreement.
[¶ 13] The judgment is reversed.
[¶ 14] SANDSTROM, Acting C.J., NEUMANN and MESCHKE, JJ., and RALPH J. ERICKSTAD, Surrogate Judge, concur.
[¶ 15] RALPH J. ERICKSTAD, Surrogate Judge, sitting in place of VANDE WALLE, C.J., disqualified.
NOTES
[1]  Sections 32-04-12 and 32-04-13, N.D.C.C., were originally enacted as §§ 1893 and 1894 of the Civil Code of the Territory of Dakota (1865). They were derived from §§ 1893 and 1894 of the Field Code, "which, although not adopted by New York for which it was proposed in 1865, was adopted by Dakota Territory in 1865 and by California in 1872." Glatt v. Bank of Kirkwood Plaza, 383 N.W.2d 473, 476 n. 4 (N.D.1986). California enacted §§ 1893 and 1894 of the Field Code as §§ 3390 and 3391 of the California Civil Code. "Because of this common derivation, California court decisions construing Field Code sections, while not binding, are entitled to respectful consideration, and may be `persuasive and should not be ignored.'" Glatt, 383 N.W.2d at 477 n. 4, quoting Becker v. Becker, 262 N.W.2d 478, 483 (N.D.1978).


103 F.3d 117
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Leonard EDMUNDSON, Administrator of the Estate of JamesRichard Turnage, Deceased;  Alene Rouse Yelverton;  RobertYelverton;  Craig Yelverton;  Karen Bennett;  KathyEdmundson;  Libby Peele;  Erin Jannell Shirley, a minor, byand through her guardian, Janice Stocks;  Janice Stocks, asGuardian ad Litem for the above, Plaintiffs-Appellees,v.Grayham KEESLER, individually and in his official capacityas an officer of the City of Goldsboro Police Department;Daniel Peters, individually and in his official capacity asan officer of the City of Goldsboro Police Department;James P. Morgan, individually and in his official capacityas Police Chief of the City of Goldsboro Police Department;Chester Hill, individually and in his official capacity asthe Police Chief for the City of Goldsboro PoliceDepartment, Defendants-Appellants,andThe CITY OF GOLDSBORO POLICE DEPARTMENT;  City of Goldsboro,Defendants.Leonard EDMUNDSON, Administrator of the Estate of JamesRichard Turnage, Deceased;  Alene Rouse Yelverton;  RobertYelverton;  Craig Yelverton;  Karen Bennett;  KathyEdmundson;  Libby Peele;  Erin Jannell Shirley, a minor, byand through her guardian, Janice Stocks;  Janice Stocks, asGuardian ad Litem for the above, Plaintiffs-Appellees,v.CITY OF GOLDSBORO, Defendant-Appellant,andGrayham KEESLER, individually and in his official capacityas an officer of the City of Goldsboro Police Department;Daniel Peters, individually and in his official capacity asan officer of the City of Goldsboro Police Department;James P. Morgan, individually and in his official capacityas Police Chief of the City of Goldsboro Police Department;Chester Hill, Individually and in his official capacity asthe Police Chief for the City of Goldsboro PoliceDepartment;  The City of Goldsboro Police Department, Defendants.
Nos. 95-3125, 95-3132.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 26, 1996.Decided Nov. 27, 1996.

ARGUED:  Kenneth Ray Wooten, WARD & SMITH, P.A., New Bern, North Carolina, for Appellants.  Zebulon Dyer Anderson, SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P., Raleigh, North Carolina, for Appellees.  ON BRIEF:  John R. Green, WARD & SMITH, P.A., New Bern, North Carolina, for Appellants.  James K. Dorsett, III, Steven M. Sartorio, SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P., Raleigh, North Carolina, for Appellees.
Before HALL, NIEMEYER, and HAMILTON, Circuit Judges.
OPINION
HAMILTON, Circuit Judge:

1
Pursuant to 42 U.S.C. § 1983, the plaintiff/appellee, Leonard Edmundson, administrator of the estate of James Richard Turnage, sued the defendants/appellants, Officers Grayham Keesler and Daniel Peters, alleging that Keesler and Peters deprived Turnage of his rights guaranteed by the Fourth and Fourteenth Amendments when Turnage was shot while attempting to flee.  The plaintiff also alleged that the defendants/appellants, Chester Hill, Chief of Police of the Goldsboro Police Department, and James Morgan, former Chief of Police of the Goldsboro Police Department, were liable for the shooting of Turnage under a theory of supervisory liability, and that the defendant/ appellant, the City of Goldsboro, North Carolina, was independently liable for providing its officers inadequate training.  See 42 U.S.C. § 1983.1  The defendants appeal the district court's denial of their motion for summary judgment on the plaintiff's § 1983 claims.  For reasons that follow, we vacate the district court's order denying the defendants' motion for summary judgment on the plaintiff's § 1983 claims and remand with instructions to enter judgment in favor of the defendants on these claims.  Because all of the federal claims are without merit, we instruct the district court on remand to dismiss without prejudice the remaining state-law claims.

2
* The evidence submitted by the defendants in support of their motion for summary judgment revealed the following.  According to Keesler and Peters, on July 2, 1992, they went to the Franklin Baking Company in Goldsboro, North Carolina, to arrest James Richard Turnage, a Franklin Baking Company employee, for felony possession with intent to distribute and distribution of marijuana.  When the officers presented Turnage with the arrest warrant, Turnage asked if he could finish unloading his delivery truck.  The officers acquiesced.

3
While Turnage was unloading his truck, he ran from the bakery warehouse to his personal pickup truck, which was located in the gravel parking lot adjacent to the warehouse.  A fence surrounded the parking lot, with one gate providing the only means of exiting the lot.

4
Seeing Turnage run for his truck, Keesler and Peters ran after him, calling for him to stop.  Refusing to heed the officers' command, Turnage got into his truck, locked the doors, and started the engine.  Turnage then backed up his truck in a semi-circular manner so that the front of his truck was facing the gate exiting the parking lot.  When the truck stopped, Keesler was positioned in front of the truck, toward the passenger's side, and Peters was positioned near the driver's side door.

5
As Turnage accelerated quickly forward and slightly to the right, toward the exit, the truck struck Keesler but did not knock him down.  At this point, Keesler stood with his chest and left hand on the hood and with his gun pointed at Turnage.  To avoid being run over by the truck, Keesler continued to back up as the truck accelerated forward.  When Keesler perceived that "Turnage was not going to stop, but that he was going to continue accelerating into [him]," (J.A. 182), Keesler fired one shot through the windshield.  Believing that Keesler's life was in danger, Peters fired two shots through the driver's side window.

6
After the shots, the truck proceeded through the gate, into the street, and stopped after it hit a pole.  As a result of the injuries he received from the shots, Turnage died.

7
The defendants also submitted the affidavits of two witnesses to the shooting who confirmed the officers' account.  One witness, E.T. Franklin Sr., observed Keesler in front of Turnage's truck and firing only after Turnage drove toward Keesler.  Franklin also observed Peters on the driver's side of the truck and firing his shots after Keesler's.  Another witness, Jimmy Stewart, observed Keesler in front of Turnage's truck with his left hand on the hood as Turnage drove forward toward Keesler.  Stewart also averred that Keesler fired his weapon as the truck moved toward Keesler.

8
The defendants also submitted the affidavits of two experts who examined and evaluated the physical evidence.  Their examination and evaluation of the physical evidence also confirmed the officers' account.  Tire impressions on the gravel parking lot revealed that the truck accelerated quickly backward and then accelerated forward.  Ballistic reports revealed that one bullet was fired from Keesler's weapon, and two from Peters' weapon.  The physical evidence showed that the path of one bullet was from a position in front of and slightly to the left of the truck's front center.  The physical evidence also showed that one bullet came from a position slightly in front of the driver's side door and another from a position beside the driver's side door.  Finally, Keesler's left palm print was found on the passenger side of the hood of the truck.

9
In response to the defendants' motion for summary judgment, the plaintiff submitted affidavits from two of Turnage's supervisors, Lionel Ginn and William Tyson.  According to Ginn, as Turnage's truck moved backwards in a semi-circular direction, Keesler followed the truck, placing him in a position two to three feet from the front corner on the driver's side of the truck.  As the truck moved forward and to the right toward the exit, Keesler fired his weapon at Turnage and then ran beside the truck shooting again twice into the driver's side.  According to Tyson, as Turnage's truck moved forward and to the right toward the exit, Keesler "pushed off the truck and moved over to the driver's side of the truck out of the path of the truck."  (J.A. 313).  Keesler then fired into the truck through the driver's side window.  According to Ginn and Tyson, Peters was neither behind the truck nor in their field of vision.  As the truck left the lot, Ginn and Tyson saw Peters near the front gate of the parking lot.

10
The district court denied the defendants' motion for summary judgment based on qualified immunity, concluding that the affidavits of the plaintiff's two eyewitnesses created "a genuine issue of material fact critical to the legal determination of whether reasonable officers would have known that their actions were unconstitutional."  (J.A. 324).  The defendants appeal.2

II

11
We first address the defendants' contention that Keesler and Peters were entitled to qualified immunity.  Under the doctrine of qualified immunity, government officials are immune from liability "as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated."  Anderson v. Creighton, 483 U.S. 635, 638 (1987).  Consequently, qualified immunity attaches when the government actor's conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."  Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).  A qualified immunity defense is established if:  (1) the government actor's action did not violate clearly established law, or (2) it was objectively reasonable for the government actor to believe that his action did not violate such law.  See Anderson, 483 U.S. at 641;  Harlow, 457 U.S. at 818-19.

12
It is clearly established that under the Fourth Amendment individuals have the right to be free of excessive force and that there are constitutional limitations on the use of deadly force during the course of an arrest.  See Graham v. Connor, 490 U.S. 386, 395-96 (1989).  Thus, Keesler and Peters' entitlement to qualified immunity turns on an assessment of the objective reasonableness of their belief that their conduct did not violate Turnage's right to be free of excessive force.

13
In determining whether the force used to effect a seizure was reasonable, and, therefore, not excessive, we apply an objective reasonableness test that examines "the facts and circumstances of each particular case," including, among other factors, "whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight."  Id. at 396.

14
The objective reasonableness test is met if "officers of reasonable competence could disagree" on the legality of the defendant's actions.  Malley v. Briggs, 475 U.S. 335, 341 (1986).  The Supreme Court has made it clear that an officer's actions are not to be assessed with 20/20 hindsight.  Graham, 490 U.S. at 396.   Rather, "qualified immunity serves to protect police from liability and suit when they are required to make on-the-spot judgments in tense circumstances."  Lennon v. Miller, 66 F.3d 416, 424 (2d Cir.1995).

15
Here, the facts in a light most favorable to the plaintiff demonstrate that Keesler, while positioned within two or three feet of a rapidly moving truck, fired all three shots, and Peters was at no time in the vicinity of the truck.  Even in this light, the officers were entitled to qualified immunity because at the moment when Keesler used deadly force against Turnage, it was objectively reasonable for Keesler to view the use of deadly force as not excessive when considering the extremely dangerous circumstances confronted by the officers--a rapidly moving truck driven by a fleeing felon and Keesler's close proximity to the truck.  Indeed, in similar circumstances, we have upheld the use of deadly force.

16
For example, in Drewitt v. Pratt, after observing Drewitt driving recklessly, Officer Pratt ran toward the car with his gun drawn, ordering Drewitt to stop.  999 F.2d 774, 776 (4th Cir.1993).  Instead, Drewitt sped up, catching Pratt on the hood of the car.  Id. At that point, Pratt fired.  Id. We affirmed the district court's holding that Pratt's actions were objectively reasonable and, therefore, Pratt was entitled to qualified immunity.  Id. at 780.

17
We reached a similar result in Pittman v. Nelms, 87 F.3d 116 (4th Cir.1996).  There, the plaintiff was a passenger in a vehicle driven by Timothy Hudson.  Officers Nelms and Banks approached the vehicle and confronted Hudson.  As Hudson attempted to drive away, Banks's arm became entangled inside the window of the vehicle.  Banks was dragged twenty-five to thirty feet before his arm finally came free, and he was thrown aside.  Id. at 118.  Banks then rose and fired at the car.  Nelms, who could see that Banks had not been run over and killed, also shot at the vehicle when it was approximately twenty-five feet away;  the shot that Nelms fired struck Pittman.  Id. at 120.  We held that the force used by Officer Nelms was not excessive, and, therefore, Nelms properly was entitled to qualified immunity.  Id.

18
This case is nearly indistinguishable from Drewitt and Pittman.   Similar to Drewitt and Pittman, this case involved circumstances that were "tense, uncertain, and rapidly evolving."  Graham, 490 U.S. at 397.   In addition, as in Drewitt and Pittman, an officer, here Keesler, was in serious danger of injury--Keesler was within two to three feet of a rapidly moving truck.  The law does not require that an officer be struck before he can discharge his weapon in an effort to protect himself from harm.  Indeed, similar perceptions of danger have served as a basis for qualified immunity even where those perceptions were mistaken.  See, e.g., Slattery v. Rizzo, 939 F.2d 213, 216 (4th Cir.1991) (holding that officer's perception that suspect was reaching for gun reasonable when suspect was in fact holding only a bottle).

19
Under the circumstances confronted by Keesler, "an objectively reasonable officer certainly could have believed that his decision to fire was legally justified."  Pittman, 87 F.3d at 120.   Accordingly, Keesler was entitled to qualified immunity.

20
With regard to Peters, plaintiff's evidence places him at a distance from the events and suggests that he did not apply any force to Turnage.  Because Keesler was entitled to qualified immunity, Peters, as a non-shooter, was as well.  See Hinkle v. City of Clarksburg, 81 F.3d 416, 420 (4th Cir.1996) ("In the absence of any underlying use of excessive force against Wilson, liability cannot be placed on either the non-shooting officers, a supervisor, or the City.").3

III

21
Our conclusion that the officers acted reasonably is dispositive of the § 1983 claims against Hill, Morgan, and the City of Goldsboro.  In the absence of any constitutional violation by the officers, the claims against Hill, Morgan, and the City of Goldsboro fail.  See id.;  Temkin v. Frederick County Comm'rs, 945 F.2d 716, 724 (4th Cir.1991) (holding that a claim of inadequate training cannot be established under § 1983 absent a finding of a constitutional violation by the person being supervised), cert. denied, 502 U.S. 1095 (1992);  see also Belcher v. Oliver, 898 F.2d 32, 36 (4th Cir.1990) ("Because ... there was no constitutional violation we need not reach the question of whether a municipal policy was responsible for the officers' actions....  Plaintiff's effort to turn this lawsuit into one for inadequate training of personnel ... is unavailing where there has been no underlying constitutional infraction.").

IV

22
For reasons stated herein, we vacate the district court's order denying the defendants' motion for summary judgment on the plaintiff's § 1983 claims and remand with instructions to enter judgment in favor of the defendants on these claims.  On remand, we instruct the district court to dismiss the state-law claims without prejudice.  See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) ("Certainly, if the federal claims are dismissed before trial, ... the state claims should be dismissed as well.");  Taylor v. Waters, 81 F.3d 429, 437 (4th Cir.1996) (directing dismissal without prejudice of state-law claims on remand after holding district court erred in failing to grant summary judgment to the defendant on the plaintiff's § 1983 claims on the basis of qualified immunity).

VACATED AND REMANDED WITH INSTRUCTIONS
HALL, Circuit Judge, dissenting:

23
"Interlocutory appeals ... are the exception, not the rule."  Johnson v. Jones, 115 S.Ct. 2151, 2154 (1995).  I would dismiss this interlocutory appeal because I believe that the district court's order "determines only a question of 'evidentiary sufficiency,' i.e., which facts a party may, or may not, be able to prove at trial."  Id. at 2156.

24
With regard to situations involving fleeing suspects, the law was clearly established in 1992 that the use of deadly force is only justified if the officers have "probable cause to believe that [the suspect] pose[d] a significant threat of death or serious injury to the officer or others."  Tennessee v. Garner, 471 U.S. 1, 3 (1985).  I agree that the analysis of qualified immunity in excessive force cases requires an examination of the particular circumstances faced by the officers to determine whether it was objectively reasonable for the officers to act as they did.  Anderson v. Creighton, 483 U.S. 635, 638 (1987).  I disagree with the majority's conclusion that the order involved in this interlocutory appeal turned on whether the plaintiff's version of the facts made out a violation of clearly established law.  See ante at 6 n. 2.

25
After a detailed examination of the evidence, the district court concluded that "the submission by plaintiffs of the affidavits of two eyewitnesses1 is sufficient to create a genuine issue of material fact critical to the legal determination of whether reasonable officers would have known that their actions were unconstitutional."  Edmundson v. Keesler, No. 5:94-CV-467-BO(3) at 8-9 (E.D.N.C. Nov. 6, 1995) (order).  In other words, the district court felt that the picture painted by Ginn and Tyson was that Keesler ran alongside the truck as it was pulling away from him, and that a permissible inference from this picture was that the shots were fired solely to stop the fleeing Turnage.  Under what I think we all agree was the established law, this is a picture of excessive force.

26
The majority reduces the picture drawn by the plaintiff to "extremely dangerous circumstances confronted by the officers--a rapidly moving truck driven by a fleeing felon and Keesler's close proximity to the truck."  Ante at 8. The district court, however, felt that much of what actually happened was open to dispute, particularly whether the truck was coming toward Keesler or moving away from him and toward the parking lot exit when the shots were fired.  Whether Keesler was actually in danger, whether he appeared to be in danger, whether he could reasonably have thought he was in danger, and whether he and his partner fired solely  to stop the fleeing Turnage, are clearly material facts.  Whether we believe the record supports or even dictates a finding in the officers' favor on the immunity issue2 is irrelevant to the inquiry under Johnson v. Jones;  all that matters at this point is that the district court thought that these factual disputes were genuine.

27
I respectfully dissent.

1
 In addition to the constitutional claims, several state law claims were raised by the estate and members of Turnage's family, none of which are before the court

2
 Because this interlocutory appeal concerns the issue of whether, based on the facts viewed in a light most favorable to the plaintiff, the officers' conduct violated clearly established law, we have jurisdiction.  See Behrens v. Pelletier, 116 S.Ct. 834 (1996);  Johnson v. Jones, 115 S.Ct. 2151 (1995)

3
 We note that with respect to Peters, we would reach the same result even if he discharged his weapon, which is the case under the defendants' version of the facts.  Under Drewitt and Pittman, in light of the dynamic circumstances confronted by the officers, Peters could have reasonably believed that Keesler was in imminent danger

1
 Affidavit of Lionel Ginn:  "Officer Keesler was completely out of the way of the pickup truck as it moved forward and rightward toward the parking lot gate.  As Mr. Turnage began to drive by Officer Keesler, Keesler then shot his gun toward Mr. Turnage....  When I saw him shoot his gun, Officer Keesler was not in danger of being hit by the truck.  I could not believe what I was seeing."
Affidavit of William Scott Tyson:  "Officer Keesler was not in danger of being struck by the truck and his life was not in danger at the time he shot Ricky Turnage, as the truck was moving away from him and toward the parking lot exit."

2
 Pittman v. Nelms, 87 F.3d 116 (4th Cir.1996), which is relied upon by the majority, see ante at 8, and which involved facts very similar to those in our case, was an appeal from a final order


360 Mass. 557 (1971)
276 N.E.2d 283
COMMONWEALTH
vs.
PAUL B. WILSON.
Supreme Judicial Court of Massachusetts, Middlesex.
November 1, 1971.
December 7, 1971.
Present: TAURO, C.J., REARDON, QUIRICO, BRAUCHER, & HENNESSEY, JJ.
Reuben Goodman for the defendant.
Terence M. Troyer, Assistant District Attorney, for the Commonwealth.
BRAUCHER, J.
The defendant appeals under G.L.c. 278, §§ 33A-33G, from convictions of unarmed robbery on each of two indictments charging armed robbery. He assigns as error (1) denial of his motion to suppress, as the fruits of an unlawful search, a toy gun and his statements to the police, (2) in-court identifications tainted by impermissibly suggestive procedures, (3) admission in evidence of incriminating statements made by him after he had requested counsel, and (4) denial of his request that the stenographer read back prior inconsistent testimony of a police officer.
A cashier at the Village Food store on Massachusetts Avenue in Lexington testified to a robbery with a gun about 9:45 P.M. on Tuesday, August 18, 1970, and identified the defendant as the robber. A part time employee at the Cumberland Farms store, about a block from the Village Food store, testified to a robbery with a plastic water pistol about 6:30 P.M. on Saturday, August 22, 1970, and identified the defendant as the robber. The defendant testified that he was elsewhere on both occasions, and other witnesses partially corroborated his testimony.
1. The arrest. Three police officers testified at the hearing on the motion to suppress, and the judge made extensive findings of fact. We summarize those relating to the arrest of the defendant. After the Tuesday robbery a hat and a water pistol resembling a hand gun were found near the *559 scene. Shortly before 10:30 P.M. on Sunday, August 23, 1970, an officer in a cruiser car received information by radio that a person in a light-colored station wagon was acting suspiciously and apparently changing clothing. About 10:30 P.M. the officer saw a car matching the description near the scene of the robberies. He stopped the car and checked the license and registration of the operator, who was the defendant.
A second officer arrived in response to a radio call and secured permission to sit in the defendant's car and talk to him. Through the open door on the driver's side the first officer observed a second water pistol on the floor of the station wagon between the defendant's legs. The officer asked the defendant to step out of the car and picked up the gun. The defendant first said he didn't know how the gun happened to be in his automobile, and then said it probably belonged to a nephew of his. The defendant then agreed to go to the police station for further talk about the gun.
At that time the defendant was not under arrest. He and the two officers arrived at the police station about 11:15 P.M. or 11:30 P.M. The second officer took the defendant to his office, handed him a "Miranda Warning Card," and asked him whether he understood it. The defendant said he did, and his implication in the two robberies was discussed. The defendant was asked whether he wanted to speak to an attorney, and was given an opportunity to use the telephone. It is not clear whether he did so. He was booked about 12:15 A.M. on suspicion of armed robbery and placed in a cell.
The defendant argues that the gun and the oral and written statements made at the police station were the fruit of the illegal interception of the defendant's automobile without probable cause and that they should have been suppressed. But G.L.c. 41, § 98, as amended through St. 1967, c. 368, § 2, constitutionally permits a brief threshold inquiry where suspicious conduct gives the officer "reason to suspect" the questioned person of "unlawful design," that is, that the person has committed, is committing, *560 or is about to commit a crime. Commonwealth v. Lehan, 347 Mass. 197, 204. Commonwealth v. Lawton, 348 Mass. 129, 132. Commonwealth v. Roy, 349 Mass. 224, 230. Alegata v. Commonwealth, 353 Mass. 287, 293. Commonwealth v. Matthews, 355 Mass. 378, 380. Commonwealth v. Quish, 356 Mass. 718. Terry v. Ohio, 392 U.S. 1, 22. See concurring opinions of White, J., in Terry v. Ohio, 392 U.S. 1, 34, and Sibron v. New York, 392 U.S. 40, 69; LaFave, "Street Encounters" and the Constitution: Terry, Sibron, Peters, and Beyond, 67 Mich L. Rev. 40, 62-84; Search and Seizure  A Symposium, 54 Mass. L.Q. 203, 223-226. We have upheld the stopping of a car in order to conduct such an inquiry. Commonwealth v. Dottin, 353 Mass. 439, 442. Commonwealth v. Lanoue, 356 Mass. 337, 340.
Upon the facts found by the judge, we think the officer had probable cause to stop the defendant's car. Once the car was stopped it was not unlawful to see the toy gun, which was in plain view. Commonwealth v. LaBossiere, 347 Mass. 384, 386. Commonwealth v. Campbell, 352 Mass. 387, 402. Commonwealth v. Murphy, 353 Mass. 433, 438. Commonwealth v. Colella, ante, 144, 149-150. Search and Seizure  A Symposium, 54 Mass. L.Q. 203, 211. Its temporary seizure was an appropriate step in the continuing inquiry, and the defendant's incredible answers to questions about the gun justified further inquiry. Cf. Commonwealth v. Dottin, supra; Commonwealth v. Quish, 356 Mass. 718. What was done from then until the defendant was booked was done with the defendant's consent. Commonwealth v. Slaney, 350 Mass. 400, 406. Commonwealth v. Garreffi, 355 Mass. 428, 431. Commonwealth v. Lanoue, 356 Mass. 337, 341.
These conclusions are reinforced by testimony of the police officers not repeated in the judge's findings. The officer in the cruiser knew the informant as a woman who lived across the street from where the defendant's car was parked, near the scene of the two robberies. He talked to her before be saw the defendant's car. When he first saw the car, the defendant was driving it on Massachusetts *561 Avenue in Lexington; it swung into a gasoline station, turned around without stopping, and started down the avenue in the opposite direction. The defendant matched the rather general description of the robber which had been given to the officer. When asked what he was doing in the area, he said he was just riding around. There was a mattress in the back of the car, and the defendant said he had been living in the ear for quite some time. The two guns were identical. Cf. Commonwealth v. Breen, 357 Mass. 441, 446; Commonwealth v. Cass, 358 Mass. 805; Commonwealth v. Jackson, 359 Mass. 759; Chambers v. Maroney, 399 U.S. 42, 46-47.
2. The identifications. Both the cashier who testified to the first robbery and the part time employee who testified to the second robbery had identified the defendant at the police station in circumstances which led the judge to suppress those identifications. As the defendant contends, therefore, the burden was on the Commonwealth "to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than" the confrontations in the police station. Unitea States v. Wade, 388 U.S. 218, 240. Cooper v. Picard, 316 F. Supp. 856, 860 (D. Mass.), S.C. 428 F.2d 1351, 1354 (1st Cir.), states that the factors listed in the Wade case (p. 241) "must be considered": "the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification." In addition the facts surrounding the police station confrontations must be developed to determine "the suggestiveness of the tainted confrontation[s]."
In the present case there was no lineup, no discrepancy between any pre-confrontation description and the defendant's actual description, no identification of any person *562 other than the defendant, no identification by picture, and no failure to identify the defendant. Each of the two identifying witnesses had ample opportunity to observe the robber at close quarters in good lighting. Cf. Commonwealth v. Kazonis, 356 Mass. 649, 652; Cooper v. Picard, 316 F. Supp. 856, 863 (D. Mass.). Each did in fact observe the commission of the robbery. Each gave an accurate though somewhat general description to the police shortly after the robbery. Cf. Commonwealth v. Cefalo, 357 Mass. 255, 257-258.
The confrontations in the police station took place five days after the first robbery and one day after the second. They were highly suggestive. The cashier of the Village Food store testified that the police called her up and said "they had somebody up there and they would like me to come up and identify him." She went to the police station; an officer told her they were going to bring somebody out and "he wanted me to identify him, to see if I knew him or not. If he was the one that held up the Village Food Store.... So while I was talking to him they did bring out this fellow. As soon as I seen him, I recognized him." The part time employee of the Cumberland Farms store said the police left a message for him to come down and make an identification. When he walked into the police station, an officer said "that he had a man that he wanted me to look at. He said he was going to have him brought up. He came up the stairs and came through the set of doors, and I was standing there and he asked me if that was the man. I said I couldn't positively identify him because he was in different clothing, and I said his facial [characteristics were the same as the man that held me up]." Both witnesses also saw the defendant at a probable cause hearing in the District Court.
Each witness was asked whether, without the benefit of the prior confrontations, the witness could identify the defendant as the robber, and each gave an affirmative answer. Largely on the basis of those answers, the judge refused to suppress the in-court identifications. Cf. Cooper v. Picard, *563 316 F. Supp. 856, 861 (D. Mass.). We think he was warranted in concluding that the Commonwealth had carried its burden by clear and convincing evidence.
3. The confession. At the hearing on the motion to suppress, the second of the two officers who took the defendant to the police station was asked, "Well, when you decided to book him, did he then say he wanted to speak to an attorney?" The officer answered, "I think he did.... I believe he did. I can't say for sure." This testimony was not referred to in the judge's findings. The defendant asked the judge to include in his findings that the defendant had requested counsel prior to being booked. The judge refused, and noted the defendant's exception.
Thereafter the defendant made oral statements and wrote out a statement in his own handwriting admitting the two robberies, and signed with two police witnesses. The judge refused to suppress the statements, and they were admitted in evidence. We summarize the judge's findings with respect to the statements. Between 1:00 and 1:15 A.M., approximately an hour after the defendant was booked, a third police officer came to the police station in response to a telephone call. After some discussion with the other officers, he went to the defendant's cell and read a "Miranda Warning Card" to him. When asked, "[D]o you wish to talk to me now?" the defendant did not request a lawyer but answered, "What's in it for me?" The officer replied, "There is nothing in it for you, but if you level with me, I will level with you and tell you what we have." The officer described the situation to the defendant, and after some further conversation the defendant made oral statements and wrote out and signed the written statement. The written statement includes these words: "Time, 3:08 a.m.; Date, 8-24-70; place, Lexington."
The judge found that "that statement was voluntarily made by the Defendant; that no threats, coercion, or promises were made to him; that it was made after he had been informed adequately of his legal rights." The defendant did not testify at the voir dire examination, but *564 subsequently he testified that he twice asked to see a lawyer before the written statement was made, that the third police officer grabbed him by the collar and struck him in the chest, and that he gave a statement to the officer "right after he struck me." The judge thereafter instructed the jury that if they were not satisfied beyond a reasonable doubt that the defendant's written statement and oral statements were made voluntarily, if he was intimidated or induced by fear, they could not use the statement against him in determining his guilt.
The defendant's principal contention with respect to his oral and written confessions is that they were made after continued interrogation during which he asked for counsel. Confessions made in such circumstances could not be admitted in evidence. Commonwealth v. McKenna, 355 Mass. 313, 323-325. Commonwealth v. Murray, 359 Mass. 541, 545-546. Miranda v. Arizona, 384 U.S. 436, 474. But the contention fails on the facts obviously found first by the judge and then by the jury. It is quite clear that the judge refused to make a finding based on the equivocal testimony of the second police officer with respect to a request to speak to an attorney. It must also be assumed that the jury rejected the defendant's account of the interrogation. Neither judge nor jury was bound to believe the testimony in question, and without it there is no basis for the defendant's contention.
4. The prior inconsistent statement. Before the jury the second police officer was asked whether, when the defendant was told he was going to be booked, he asked to speak to an attorney. The officer answered, "He didn't ask me to speak to an attorney period." He was then asked whether he remembered his earlier testimony in the absence of the jury, and testified that he did not recall what his answer was to the question whether the defendant had requested to speak to an attorney. The defendant then asked permission to have the stenographer read the prior question and answer to the witness. The testimony on voir dire examination, given on a previous day, had apparently not been transcribed. *565 The judge said, "It will take him an hour to look for it," and refused to suspend the trial to permit the stenographer to search his notes. The defendant excepted, and now claims error on the crucial issue "whether the confession should be disregarded by the jury as involuntary."
The officer's equivocal testimony on voir dire is quoted earlier in this opinion: "I think he did.... I believe he did. I can't say for sure." In context, it may well have reflected uncertainty as to what he had been told by other officers. It related, not to the facts of the crime, but to a preliminary question of fact bearing on the admissibility of other evidence. See Robinson v. Old Colony St. Ry. 189 Mass. 594, 596. The judge simply refused to suspend the trial to permit a search for evidence. The defendant was permitted to examine the officer concerning the alleged prior inconsistent statement, and the officer's lack of memory was fully disclosed. The prior testimony was not secret, like that in Commonwealth v. Carita, 356 Mass. 132, 141-142, cited by the defendant; it could have been offered through any of those who were present and heard it. The defendant did not offer the evidence in any of the several ways available to him. In the circumstances, the judge did not abuse his discretion in refusing to interrupt the trial.
Judgments affirmed.