Cottingham v. State
| Decision Date | 20 October 1992 |
| Docket Number | Nos. A92A1495,A92A1496,s. A92A1495 |
| Citation | 206 Ga.App. 197,424 S.E.2d 794 |
| Parties | COTTINGHAM v. The STATE. SIMMONS v. The STATE. |
| Court | Georgia Court of Appeals |
Herbert E. Franklin, Jr., Trenton, for appellant (case no. A92A1495).
John R. Emmett, Trenton, for appellant (case no. A92A1496).
Ralph L. Van Pelt, Jr., Dist. Atty., for appellee.
Richard L. Cottingham and Steve B. Simmons were jointly tried and convicted of three counts of armed robbery. They appeal from their convictions and the denials of their motions for new trial.
1. Cottingham contends that the trial court erred in denying his motion for a directed verdict of acquittal as to count three of the indictment charging him with armed robbery of Chris Burnette. Cottingham argues that because Burnette did not testify, there was insufficient evidence to show that Burnette had a reasonable apprehension that an offensive weapon was being used against him. We disagree.
"The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction." (Citations and punctuation omitted.) Johnson v. State, 201 Ga.App. 88, 89(1), 410 S.E.2d 189 (1991). The State presented the testimony of Johnny Drew and Janet Higdon, the victims named in the first two counts of the indictment. Drew and Higdon both identified Cottingham as the man who used a gold-plated .22 caliber revolver to rob them while they were working at a convenience store. They testified that Cottingham pointed the revolver at them and ordered them to open the cash register. After getting $82 from the register, Cottingham also took $60 from Drew and $8 from Higdon. Burnette, a customer, then came into the store to pay for gas. Cottingham grabbed $20 from Burnette's hand, shoved Burnette against a wall and demanded his wallet. Burnette, however, was not in possession of a wallet. Cottingham, still holding the gun, then ripped the station's telephone out of the wall and fled the store. The State also presented the testimony of Carolyn Luallen, who claimed that immediately after the incident, Cottingham and Simmons both admitted committing the armed robberies. Reviewing the evidence in the light most favorable to the jury's verdict, we find that a rational trier of fact could have found Cottingham guilty beyond a reasonable doubt of armed robbery of Burnette. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Accordingly, the trial court did not err in denying Cottingham's motion for a directed verdict.
2. Cottingham next contends that the trial court erred in charging the jury that robbery by intimidation is a lesser included offense of armed robbery. Cottingham argues that this portion of the court's charge misled the jury into believing that robbery by intimidation is simply a method by which armed robbery can be committed. This argument is without merit.
It is generally not error to give an entire Code section in a charge, even though part of the section may be inapplicable to the allegations and the evidence. Bagby v. State, 178 Ga.App. 282, 283-284(7), 342 S.E.2d 731 (1986). Here, the court read to the jury the entire text of OCGA § 16-8-41(a), which defines armed robbery. The last sentence of that subsection (a) states, "robbery by intimidation shall be a lesser included offense in the offense of armed robbery." The court did not further charge the jury on the definition of robbery by intimidation. While it is true that the portion of the Code section complained of was unnecessary based on the allegations and evidence in the instant case, there is nothing about that portion or the rest of the charge that supports Cottingham's contention that the jury was led to believe that robbery by intimidation is a way of committing an armed robbery. Accordingly, we find no reversible error. See Smith v. State, 178 Ga.App. 19, 20(4), 341 S.E.2d 901 (1986); Slack v. State, 159 Ga.App. 185(2), 283 S.E.2d 64 (1981).
3. In his final enumeration of error, Cottingham challenges his sentence. The trial court sentenced Cottingham to serve consecutive terms of twenty years in prison on each of the three counts of armed robbery, and further ordered that those sentences run consecutive to a sentence Cottingham was already serving in Alabama. Prior to sentencing, the trial judge stated, Cottingham argues that the trial court abused its discretion in sentencing him based on such a policy. Because the judge's policy relates only to his refusal to run a sentence concurrent with one imposed by a different court, Cottingham's argument applies only to that portion of the court's order which provides that Cottingham's 60-year sentence is to run consecutive to the Alabama sentence. To the extent that Cottingham challenges the other aspects of his sentence, we will not review those aspects for error as they are within the statutory limits. See Snyder v. State, 201 Ga.App. 66, 70(10), 410 S.E.2d 173 (1991). However, we must address that portion of the sentence requiring it to run consecutively to Cottingham's Alabama sentence based on the judge's statement of his sentencing policy.
Trial courts are vested with broad discretion in determining whether to run sentences they impose consecutive to or concurrent with sentences already imposed by other courts. OCGA § 17-10-10; Daughtrey v. State, 138 Ga.App. 504, 507(2), 226 S.E.2d 773 (1976). If a Georgia court remains silent as to whether its sentence is to run consecutive to or concurrent with a sentence already imposed by a court in another state or in the federal system, the sentences are deemed to be consecutive as a matter of law. Wheeler v. Jernigan, 248 Ga. 302, 282 S.E.2d 891 (1981); Taylor v. Green, 229 Ga. 164, 190 S.E.2d 66 (1972); Grimes v. Greer, 223 Ga. 628, 157 S.E.2d 260 (1967). Because of the broad discretion in sentencing vested in trial courts, it is the duty of the courts to exercise that discretion as to all aspects of sentences they impose. Although we have found no Georgia cases which directly address the issue of a trial judge's mechanical sentencing formula or policy, the Eleventh Circuit and several other circuits have held that a mechanical sentencing formula is an abdication of judicial responsibility and that implementing a rigid sentencing policy is an abuse of discretion. See United States v. Brown, 723 F.2d 826 (11th Cir.1984). See also Nation v. State of Ga., 645 F.Supp. 179 (N.D.Ga.1986). We recognize that in Brown and Nation, the rigid sentencing policy in question was one based solely upon the crime of which the defendant was convicted to the exclusion of all other relevant factors which a sentencing judge must consider in order to properly exercise discretion in sentencing. We note that the trial court's stated sentencing policy in the instant case was not based on the crime of which Cottingham was convicted, but instead was based on the fact that a prior sentence was imposed by a different court. Nonetheless, we find the reasoning of the federal courts instructive. We hold that a trial court's use of a mechanical sentencing formula or policy as to any portion of a sentence amounts to a refusal to exercise its discretion and therefore is an abdication of judicial responsibility. Here, the trial court abdicated its judicial responsibility by basing a portion of its sentence on the rigid policy that it would never run a sentence it imposed concurrent with a sentence imposed by another court. In ordering that Cottingham's sentence in this case run consecutive to the Alabama sentence based solely on the stated policy, the trial court failed to exercise its discretion. Accordingly, we must vacate that...
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...in an effort to get the accused to make an incriminating statement in response to overhearing the summary (Cottingham v. State, 206 Ga.App. 197(4), 424 S.E.2d 794 (1992)), no such admission of intent was made by the detective involved in the case at bar. Although the car-trip conversation b......
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Jefferson v. State
...amounts to a refusal to exercise its discretion and is therefore an abdication of judicial responsibility. Cottingham v. State, 206 Ga.App. 197, 199(3), 424 S.E.2d 794. Nor is any denial of due process involved. Prohibited behavior is described in various criminal statutes, along with possi......
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Mika v. State
...interrogation and the officer should have known it was likely to elicit an incriminating response (see Cottingham v. State, 206 Ga.App. 197, 200-201, 424 S.E.2d 794 (1992)), the admission of the response was harmless error under the circumstances. Two undercover police officers testified th......
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Doe v. State, A17A0115
...granting first offender status to defendants appearing in superior court and thereby abused its discretion.); Cottingham v. State , 206 Ga. App. 197, 199 (3), 424 S.E.2d 794 (1992) (Where the trial court used a mechanical and rigid sentencing policy, specifically, that it would never run a ......