Pledger v. State

• Decision Date: 20 November 1989
• Docket Number: A89A1100,A89A1101 and A89A1104,Nos. A89A0938,s. A89A0938
• Citation: 193 Ga.App. 588,388 S.E.2d 425
• Parties: PLEDGER v. The STATE. COBB v. The STATE. GRIGGS v. The STATE.
• Court: Georgia Court of Appeals

Page 425

388 S.E.2d 425

193 Ga.App. 588

PLEDGER v. The STATE.

COBB v. The STATE.

GRIGGS v. The STATE.

Nos. A89A0938, A89A1100, A89A1101 and A89A1104.

Court of Appeals of Georgia.

Nov. 20, 1989.

Allison V. Cobham, for appellant, Pledger.

Robert G. Fierer, Gary N. Finder, Daniel E. Gavrin, Atlanta, for appellant, Cobb.

Hurl R. Taylor, Jr., Decatur, for appellant, Griggs.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Joyce M. Averils, Benjamin H. Oehlert III, Asst. Dist. Attys., for appellee.

BEASLEY, Judge.

Pledger, Cobb, and Griggs were indicted for kidnapping a woman, Ella Fountain, and her two daughters, Cassandra and Denitria Fountain, OCGA § 16-5-40, robbing the woman at gunpoint, OCGA § 16-8-41, and raping the woman and one of the daughters, OCGA § 16-6-1. All were tried together by a jury. Pledger was convicted of armed robbery and kidnapping of all three victims. Cobb was convicted of the kidnappings, the armed robbery, and the rape of Cassandra Fountain. Griggs was convicted of three counts of kidnapping, armed robbery and the rape of Ella Fountain.

1. Case Nos. A89A1100 and A89A1101 are duplicate appeals by Cobb. As a result of this and because A89A1101 is not supported by enumeration of error or brief, it is treated as abandoned and dismissed.

2. Pledger and Cobb enumerate as error the denial of a new trial on evidence insufficiency. Cobb and Griggs claim error in the court's reversing its order granting a new trial to them.

(a) As to the latter question, a procedural one, the three motions for new trial were heard and, in the same November term of court, granted as to Cobb and Griggs, denied as to Pledger. The trial court was of the opinion, based on Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), that because of Pledger's written statement implicating the other two, they were entitled to a separate trial or one at which all three were tried but Pledger's statement was excluded. In the next term of court, January (OCGA § 15-6-3(3)), the court without further hearing vacated the prior order and denied a new trial to Cobb and Griggs as well.

What was stated in Salisbury v. Grimes, 223 Ga. 776, 778(2), 158 S.E.2d 412 (1967), applied here: "When appellant was granted a new trial, it wiped the slate clean as if no previous conviction and sentence had existed." The question for our decision is, even if the verdict and sentences could have been resurrected, did the trial court have authority to do so after the term in which the order was entered had ended.

" 'During the term of the court at which a judgment is rendered, it is within the breast of the presiding judge, and may be vacated upon proper cause shown; but after the term has expired, the judgment 'is upon the roll' and is not subject to review or revision by the trial court.' " Gobles v. Hayes, 194 Ga. 297, 300, 21 S.E.2d 624 (1942). The power of the court, during the term, is described as plenary, to be used for the purpose of promoting justice, but the court's discretion, although broad, is not unbounded and should be exercised only upon sufficient cause shown. Deen v. Baxley State Bank, 192 Ga. 300, 303(1), 15 S.E.2d 194 (1941).

The effect of a new trial grant is to leave the cause pending in the lower court. In civil cases and under OCGA § 9-11-6(c), our courts have distinguished between interlocutory rulings and final judgments. "While final judgments may not be modified after the term in which they were rendered (subject to certain exceptions), 'an interlocutory ruling does not pass from the control of the court at the end of the term if the cause remains pending.' " Hodges Plumbing, etc., Co. v. ITT Grinnell Co., 179 Ga.App. 521, 522(1), 347 S.E.2d 257 (1986). See Hubbert v. Williams, 175 Ga.App. 393, 394(1), 333 S.E.2d 425 (1985); Bradley v. Tattnall Bank, 170 Ga.App. 821, 823(1), 318 S.E.2d 657 (1984); Van Keuren v. Loomis, 128 Ga.App. 136(1), 195 S.E.2d 776 (1973).

The power of the court during, but not beyond, the term is an inherent one, East Side Lumber, etc., Co. v. Barfield, 193 Ga. 273, 276(1 & 2), 18 S.E.2d 492 (1942), predating the CPA, and as to criminal cases has not been modified by statute, as have those cases civil in nature. See Ammons v. Bolick, 233 Ga. 324, 325, 210 S.E.2d 796 (1974). Prior to the CPA, the rule was: "The mere fact that a cause is still pending, no final judgment on the merits having been rendered, does not preserve in the court power to revoke interlocutory rulings made at a term which has passed." McCandless v. Conley, 115 Ga. 48, 51(1), 41 S.E. 256 (1902). Accord Gulf Life Ins. Co. v. Gaines, 50 Ga.App. 504, 505, 179 S.E. 199 (1935) (physical precedent); Rusk v. Hill, 117 Ga. 722, 730, 45 S.E. 42 (1903); Rogers v. Rigell, 183 Ga. 455, 456, 188 S.E. 704 (1936).

The present order was entered in one term and vacated in another. In a criminal case the inherent power still ceases with the term's end. Bowen v. State, 239 Ga. 517, 518(2), 238 S.E.2d 62 (1977), held that a trial court could rescind its order granting a new trial where proceedings to vacate such order were begun during the term it was entered (the most important exception to the end of term rule). Implicit from the decision is the recognition that if a motion had not been filed during the term then the grant of the new trial could not have been set aside after the term. See Bowen v. State, 144 Ga.App. 329, 332, 241 S.E.2d 431 (1977); Ramsey v. State, 212 Ga. 381, 385, 92 S.E.2d 866 (1956).

At the beginning of the January term, any action with respect to whether there should be a new trial or not was complete. The power to reinstate the original judgment had expired at the end of the November term.

Cobb and Griggs are entitled to a new trial.

(b) Their remaining enumerations of error fail to disclose a further basis for reversal.

(c) The substantive question, of the sufficiency of evidence, need be decided only with respect to Pledger. It is within the jury's province to resolve contradictions in evidence and decide issues of credibility of witnesses. Rhodes v. State, 153 Ga.App. 306, 307, 265 S.E.2d 110 (1980). In addition, it is entitled to draw any reasonable inference from the evidence presented. Dowdy v. State, 150 Ga.App. 137, 139, 257 S.E.2d 41 (1979); United States v. Yeatts, 639 F.2d 1186 (5th Cir., 1981). These principles being so, the appellate court is relegated to reviewing the evidence construed in favor of the verdict. Hosch v. State, 185 Ga.App. 71(1), 363 S.E.2d 258 (1987). The combined testimony of the three victims, supported by that of law enforcement investigators and scientific experts, was sufficient to establish the elements of the crimes Pledger was found guilty of committing, applying the test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Identity was the key issue, rather than whether or not the events occurred. Pledger was identified as one of the two men who first approached the victims' car, abducted them, partially by display of Pledger's gun, took them to a deserted area for robbery and rape with Pledger driving, took the daughters to the family home for burglarizing, and drove off with them again. Pledger, who was Griggs'...