Cunningham v. State, 535 S.E.2d 262 (Ga. Ct. App. 2000). · Go Syfert
Cunningham v. State, 535 S.E.2d 262 (Ga. Ct. App. 2000). Cases Citing This Book View Copy Cite
37 citation events (37 in the last 25 years) across 1 distinct court.
Strongest positive: Billingsley v. State (gactapp, 2008-11-18)
Treatment trajectory · 2001 → 2026 · click a year to view as-of
2001 2013 2026
Top citers, strongest first. 14 distinct citers. How cited ↗
discussed Cited as authority (quoted) Billingsley v. State (2×) also: Cited "see"
Ga. Ct. App. · 2008 · signal: see · quote attribution · 1 verbatim quote · confidence high
whether to grant a motion to continue is entirely within the sound legal discretion of the trial court.
discussed Cited as authority (rule) Levin v. the State (2×) also: Cited "see, e.g."
Ga. Ct. App. · 2015 · confidence medium
“All applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends ofjustice may require.” OCGA § 17-8-22; Cunningham v. State, 244 Ga. App. 231, 232 (1) ( 535 SE2d 262 ) (2000).
discussed Cited as authority (rule) In Re Cl (2×)
Ga. Ct. App. · 2008 · confidence medium
Although C.L. claims that a continuance should have been granted so that a transcript of the detention hearing could have been obtained and reviewed by his counsel, C.L. has failed "to demonstrate specifically how the transcript would have helped his examinations at trial or otherwise assist in his H defense." Cunningham v. State, 244 Ga. App. 231, 233 (1), 535 S.E.2d 262 (2000).
discussed Cited as authority (rule) In the Interest of C. L. (2×)
Ga. Ct. App. · 2008 · confidence medium
L. has failed “to demonstrate specifically how the transcript would have helped his examinations at trial or otherwise assist[ ] in his defense.” Cunningham v. State, 244 Ga. App. 231, 233 (1) ( 535 SE2d 262 ) (2000).
discussed Cited as authority (rule) Johnson v. State (2×)
Ga. Ct. App. · 2006 · confidence medium
See Bogan v. State, 255 Ga. App. 413, 415 (3) (b) ( 565 SE2d 588 ) (2002); Cunningham v. State, 244 Ga. App. 231, 234 (3) ( 535 SE2d 262 ) (2000).
cited Cited as authority (rule) Williams v. State
Ga. Ct. App. · 2003 · confidence medium
See generally Rodriguez v. State, 211 Ga. App. 256, 257 (3) ( 439 SE2d 510 ) (1993); Chung, supra. OCGA § 17-8-22; Cunningham v. State, 244 Ga. App. 231, 232 (1) ( 535 SE2d 262 ) (2000).
discussed Cited as authority (rule) Rose v. State
Ga. Ct. App. · 2002 · confidence medium
J., and Miller, J., concur. 1 Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896). 2 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 3 Graham v. State, 236 Ga. App. 673, 675 (1) ( 512 SE2d 921 ) (1999). 4 Id. at 675 (2) (a). 5 OCGA § 16-8-7 (a); Ruffin v. State, 252 Ga. App. 289, 292 (3) ( 556 SE2d 191 ) (2001). 6 OCGA § 40-2-7; Rogers v. State, 185 Ga. App. 211, 213 (2) ( 363 SE2d 846 ) (1987). 7 See Petty v. State, 221 Ga. App. 125, 126-127 ( 470 SE2d 517 ) (1996). 8 Haxho v. State, 186 Ga. App. 393 ( 367 SE2d 282 ) (1988); Shirley v. State, 166 Ga. App…
discussed Cited as authority (rule) O'CONNOR v. State
Ga. Ct. App. · 2002 · confidence medium
Drake v. State, 159 Ga. App. 606, 607 (2) ( 284 SE2d 109 ) (1981). 15 (Punctuation and footnote omitted.) Bacon v. State, 249 Ga. App. 347, 350 (2) ( 548 SE2d 78 ) (2001). 16 See Cunningham v. State, 244 Ga. App. 231, 233 (1) ( 535 SE2d 262 ) (2000).
cited Cited as authority (rule) Johnson v. State
Ga. Ct. App. · 2002 · confidence medium
Cunningham v. State, 244 Ga. App. 231, 234 (3) ( 535 SE2d 262 ) (2000).
discussed Cited as authority (rule) Guild v. State
Ga. Ct. App. · 2002 · confidence medium
Under nearly identical circumstances, Cunningham v. State, 244 Ga. App. 231, 232 (1) ( 535 SE2d 262 ) (2000), held that the trial court did not abuse its discretion in denying a motion for continuance.
discussed Cited as authority (rule) Glass v. State
Ga. Ct. App. · 2002 · confidence medium
J., and Miller, J., concur. 1 248 Ga. App. 91 ( 545 SE2d 360 ) (2001). 2 Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). 3 Patterson v. State, 233 Ga. App. 776 (1) ( 505 SE2d 518 ) (1998). 4 Patterson v. State, 225 Ga. App. 515 ( 484 SE2d 317 ) (1997). 5 Dominguez-Vega v. State, 253 Ga. App. 562 (1) ( 560 SE2d 56 ) (2002); McIntosh v. State, 247 Ga. App. 640, 641 (1) ( 545 SE2d 61 ) (2001). 6 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 7 OCGA § 16-6-1 (a) (1). 8 OCGA § 16-6-22.2 (b). 9 Banks v. State, 250 Ga. App. 728, 731 (4) ( 552 SE2d 903 ) (200…
discussed Cited as authority (rule) Blackford v. State
Ga. Ct. App. · 2001 · confidence medium
Ruffin and Ellington, JJ., concur. 1 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Smith v. State, 231 Ga. App. 677, 678-679 (1) ( 499 SE2d 663 ) (1998). 2 See Clark v. State, 271 Ga. 27, 29 (2) ( 518 SE2d 117 ) (1999). 3 See Smith, supra; Brown v. State, 225 Ga. App. 218, 219 ( 483 SE2d 633 ) (1997). 4 See Koritta v. State, 263 Ga. 703, 704 ( 438 SE2d 68 ) (1994). 5 Turner v. State, 262 Ga. 359, 361 (2) (c) ( 418 SE2d 52 ) (1992). 6 OCGA § 16-2-2. 7 Davis v. State, 269 Ga. 276, 279 (3) ( 496 SE2d 699 ) (1998). 8 See id. 9 Brooks v. State, 262 Ga. 187, 188 (3) ( 415 SE2…
discussed Cited "see" Bogan v. State (2×)
Ga. Ct. App. · 2002 · signal: see · confidence high
See Cunningham v. State, 244 Ga. App. 231, 234 (3) ( 535 SE2d 262 ) (2000).
discussed Cited "see, e.g." Whitaker v. State (2×)
Ga. Ct. App. · 2002 · signal: see also · confidence medium
Moreover, “[i]t is a well-settled appellate rule that one cannot complain about a ruling of the trial court which the party’s own trial tactics or conduct procured or aided in causing. [Cit.]” Maxwell v. State, 233 Ga. App. 419, 423 (4) (b) ( 503 SE2d 668 ) (1998); see also Cunningham v. State, 244 Ga. App. 231, 234 (2) ( 535 SE2d 262 ) (2000).
Retrieving the full opinion text from the archive…
Cunningham
v.
the State
A00A0729.
Court of Appeals of Georgia.
May 26, 2000.
535 S.E.2d 262
2000 Ga. App. LEXIS 676
Jeffrey P. Manciagli, for appellant., David McDade, District Attorney, for appellee.
Miller, Pope, Smith.
Cited by 14 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 87%
Citer courts: Court of Appeals of Georgia (1)
Miller, Judge.

The questions on appeal are threefold: (1) whether the trial court abused its discretion in denying a motion for continuance where the defendant had substituted new counsel shortly before trial and where this new counsel had difficulty in obtaining transcripts of the completed trial of co-indictees; (2) whether defendant could first consent to the admission of the co-indictees’ statements and convictions (as part of a trial strategy of blaming the co-indictees for the crimes) and then argue on appeal that such evidence should not have been admitted; and (3) whether this unsuccessful trial strategy demanded a finding that defendant received ineffective assistance of counsel. We answer each question in the negative and affirm.

Construed in favor of the verdict, the evidence showed that in June 1995 William Cunningham and two other men surrounded the victim in an apartment complex parking lot as she was transferring suitcases from her car to her boyfriend’s truck. Cunningham brandished a gun and demanded her money, which he and the others took along with her jewelry and other personal property. Realizing that a neighbor was witnessing the robbery, Cunningham demanded her car keys, forced her into the back seat of her car with him at her side, and had one of the other men drive the car away with the remaining man seated in front. Cunningham forced the victim at gunpoint to perform oral sex on him and to disrobe, whereupon he placed her on his lap and partially penetrated her. Cunningham then forced her into the trunk, from which she later escaped (with injury) after unlatching the lock.

When police later found the other two men in possession of the stolen vehicle, they confessed to the material facts with the exception of the sexual assaults, with only one implicating Cunningham as attempting the rape. When arrested, Cunningham also confessed to the armed robbery, the kidnapping, and the carjacking but denied any sexual assaults.

Tried separately from Cunningham in November 1995, the other two men were convicted of kidnapping with bodily injury, armed robbery, hijacking a motor vehicle, aggravated sodomy, and rape. After Cunningham’s trial in January 1996 in which he was convicted of the[*232] same charges, he moved for a new trial on various grounds, including ineffective assistance of counsel. The court denied the motion, and he appeals.

1. Cunningham first complains that the court erred in denying a motion for a continuance. The record reflects that Cunningham’s first counsel appeared for him in June 1995 and engaged in extensive discovery. Three times Cunningham’s case was placed on the trial calendar, and three times it was continued. Three weeks prior to the fourth trial date in January 1996, Cunningham discharged his counsel and hired new counsel, who immediately moved for a continuance on the grounds that she needed more time to prepare and that she had been unsuccessful in obtaining the trial transcript from the November trial of the two co-indictees. On the morning of trial the court held a hearing on the motion, at which time the new counsel admitted that for the most part she was ready and that in the last two weeks she had not spoken to the court reporter regarding the desired transcript. The court denied the motion.

Whether to grant a motion to continue is entirely within the sound legal discretion of the trial court. [1] Unless it clearly appears that the trial court abused that discretion, we will not disturb the denial of a continuance sought on the ground defendant’s new counsel had insufficient time to prepare. [2] Even though the new attorney may have only two weeks to prepare, denying a continuance is not an abuse of discretion, [3] particularly where the short time period arises from defendant’s voluntary decision to substitute new counsel. [4] We discern no abuse here.

Nor do we find the denial of a continuance to be an abuse of discretion where the basis for the continuance is the lack of a transcript, [5] unless defendant has shown due diligence in obtaining the transcript. [6] Here, there was no showing that the first counsel had sought the transcript, and the new counsel made only a single request for the transcript with no follow-up in the two weeks before trial.

Moreover, even if Cunningham and his counsel had been dili[*233] gent, Cunningham made no effort (even post-conviction) to demonstrate specifically how the transcript would have helped his examinations at trial or otherwise assisted in his defense. Absent such a showing, there is no reversible error. [7]

2. Cunningham next contends that the court erred in allowing the State to introduce custodial statements by his co-indictees regarding Cunningham’s participation in the crimes and to introduce proof that these co-indictees had been convicted of the same crimes with which Cunningham was charged. Citing Price v. State, 8 Boatwright v. State, 9 and Mindock v. State, 10 he concedes that this evidence was admitted without objection yet argues that it should be reviewed under the “plain error” doctrine.

As part of his conscious trial strategy of denying the sexual assaults or shifting blame to the co-indictees, Cunningham specifically requested that these two co-indictees be available to testify as witnesses. Out of an abundance of caution, the State asked whether Cunningham’s counsel would be discussing that testimony in her opening statement and, if so, whether she would have any objection to the State referencing the confessions or convictions of the coindictees in its opening statement. The judge cautioned Cunningham’s counsel that the State would not be allowed to discuss such unless she agreed. Counsel responded that she intended to build on what the co-indictees had already said and therefore had no objection to the State referencing their confessions or their convictions. In opening statement, Cunningham’s counsel referenced the content of their confessions and later indicated to the court that she intended to introduce the videotapes of those confessions if the co-indictees did not testify.

During its case-in-chief, the State put on testimony as to the statements of the co-indictees that Cunningham was the one in the back seat with the victim (a fact admitted by Cunningham) and the statement of one co-indictee that Cunningham tried to penetrate her. The State also elicited without objection testimony that the coindictees had been convicted of the same charges and therefore had no motive to lie, as that implicated them also. Having invited this testimony at every turn, Cunningham eventually chose to present no evidence.

On appeal, Cunningham reverses field, now claiming that the trial court should have ignored Cunningham’s express acquiescence[*234] and should have forbidden the State from introducing the coindictees’ statements and convictions. “A party may not complain on appeal of a ruling that he contributed to or acquiesced in by his own action, trial strategy, or conduct.” [11] Specific acquiescence to the introduction of certain objectionable evidence precludes reversal and a new trial on this ground. [12]

Decided May 26, 2000. Jeffrey P. Manciagli, for appellant. David McDade, District Attorney, for appellee.

3. Arguing that this trial strategy of allowing in the statements and convictions of the co-indictees was fatally flawed, Cunningham claims that he received ineffective assistance of counsel. “[T]actical errors do not constitute ineffective assistance.” [13] Absent evidence to the contrary, [14] the decision not to object to certain evidence is presumed strategic and provides no valid basis for an ineffective assistance claim. [15]

Judgment affirmed.

Pope, P. J., and Smith, P. J., concur.
2

Holder v. State, 242 Ga. App. 479, 483 (7) (529 SE2d 907) (2000).

3

Judge v. State, 240 Ga. App. 541, 543 (2) (524 SE2d 4) (1999); see also Corbin v. State, 212 Ga. 231 (1) (91 SE2d 764) (1956).

5

Moreland v. State, 213 Ga. App. 75, 76 (2) (443 SE2d 701) (1994); cf. Kier v. State, 240 Ga. App. 152, 153 (525 SE2d 102) (1999).

6

See Bearden, supra, 241 Ga. App. at 844 (3) (“[t]he party requesting the continuance must show that he exercised due diligence”) (footnote omitted); compare Coaxum v. State, 146 Ga. App. 370, 371 (4) (246 SE2d 403) (1978) (counsel made repeated requests over a one-year period for transcripts).

7

Beene v. State, 202 Ga. App. 857 (1) (415 SE2d 545) (1992); Gann v. State, 190 Ga. App. 82, 85-87 (3) (378 SE2d 369) (1989).

11

(Footnote omitted.) Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997); see Maxwell v. State, 233 Ga. App. 419, 423 (4) (b) (503 SE2d 668) (1998) (“[i]t is a well-settled appellate rule that one cannot complain about a ruling of the trial court which the party’s own trial tactics or conduct procured or aided in causing. [Cit.]”).

12

Brady v. State, 270 Ga. 574, 579 (5) (b) (513 SE2d 199) (1999); see Williams v. State, 119 Ga. 425 (2) (46 SE 626) (1904).

13

(Citation omitted.) Scott v. State, 234 Ga. App. 378, 379 (2) (506 SE2d 880) (1998); see Wallace v. State, 238 Ga. App. 69, 70 (2) (517 SE2d 801) (1999) (“trial tactics or strategy does not constitute ineffectiveness. [Cit.]”).

14

Cunningham chose not to call his trial counsel to testify.

15

Hamilton v. State, 238 Ga. App. 320, 322 (3) (517 SE2d 118) (1999); see Thomas v. State, 268 Ga. 135, 139 (12) (485 SE2d 783) (1997).