Sutton v. State, 587 S.E.2d 379 (Ga. Ct. App. 2003). · Go Syfert
Sutton v. State, 587 S.E.2d 379 (Ga. Ct. App. 2003). Cases Citing This Book View Copy Cite
35 citation events (35 in the last 25 years) across 2 distinct courts.
Strongest positive: Girls Galore, Inc. v. City of Atlanta (gactapp, 2026-03-03)
Treatment trajectory · 2003 → 2026 · click a year to view as-of
2003 2014 2026
Top citers, strongest first. 11 distinct citers.
discussed Cited as authority (rule) Girls Galore, Inc. v. City of Atlanta
Ga. Ct. App. · 2026 · confidence medium
See, e.g., Polite v. State, 273 Ga. App. 235, 238 (3) ( 614 SE2d 849 ) (2005) (explaining that “statements by attorneys are not evidence” (punctuation omitted)); Sutton v. State, 263 Ga. App. 188, 191 (2) ( 587 SE2d 379 ) (2003) (same).
discussed Cited as authority (rule) Angela Wall v. Donny James
Ga. Ct. App. · 2021 · confidence medium
J. was “released for Thanksgiving on November 25th,” which was the Monday prior to Thanksgiving.12 This is not inconsistent with school having “recessed” for Thanksgiving break the prior Friday as Wall’s testimony implied, which would decree, leaving the trial court with no basis upon which to hold wife in contempt); McGahee v. Rogers, 280 Ga. 750, 750-53 (1) ( 632 SE2d 657 ) (2006) (holding that contempt finding was unauthorized when party had not violated terms of divorce decree). 11 See, e.g., Polite v. State, 273 Ga. App. 235, 238 (3) ( 614 SE2d 849 ) (2005) (explaining that “s…
discussed Cited as authority (rule) Dedrick Octavious Crews v. State
Ga. Ct. App. · 2020 · confidence medium
(Citation omitted.) Sutton v. State, 263 Ga. App. 188, 190 ( 587 SE2d 379 ) (2003) (finding no error where trial court erroneously told defendant that the range of punishment for armed robbery was “10-20 years in prison or life,” when in fact, the trial court was required to, and ultimately did, sentence defendant as a recidivist to the maximum life in prison) (punctuation omitted); see generally Harris v. State, 334 Ga. App. 456, 459-460 ( 779 SE2d 692 ) (2015) (citing Sutton, and collecting similar cases in which defendant was not made aware of mandatory sentence, but knew of 3 At the he…
discussed Cited as authority (rule) Rouse v. State (2×)
Ga. · 2014 · confidence medium
The State asserts that reversal is not required because the court’s comment was a “slip of the tongue” or was needed “to orient the venire to the time and place the crime was alleged to have occurred.” None of the cases cited by the State in support of these propositions, however, involved an explicit comment by a trial judge indicating the court’s opinion that a critical element that must be 6 proved by the State was not in dispute.2 See Linson v. State, 287 Ga. 881 , 883- 884 ( 700 SE2d 394 ) (2010) (statement during preliminary instructions that State may not use all of its witn…
discussed Cited as authority (rule) Childrey v. State
Ga. Ct. App. · 2008 · confidence medium
App. 1992). 19 211 Ga. App. 121 ( 438 SE2d 128 ) (1993). 20 But cf. Uniform Superior Court Rule 33.8 (C) (4) (judge should not accept plea of guilty without first informing defendant on record of mandatory minimum sentence on charge). 21 263 Ga. App. 188, 189-190 (1) ( 587 SE2d 379 ) (2003). 22 264 Ga. App. 763 ( 592 SE2d 161 ) (2003). 23 Cleveland, supra at 839-840 (2) (citations and punctuation omitted); compare Davis v. Murrell, 279 Ga. 584, 587 (2) ( 619 SE2d 662 ) (2005) (habeas court’s conclusion that petitioner did not carry burden of showing he would have chosen to go to trial but fo…
discussed Cited as authority (rule) Polite v. State
Ga. Ct. App. · 2005 · confidence medium
Smith v. State, 269 Ga. App. 133, 133-134 (1) ( 603 SE2d 445 ) (2004). 1 OCGA § 16-8-41. 2 OCGA§ 16-11-106. 3 OCGA§ 16-8-40. 4 OCGA§ 16-7-23. 5 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 7 In the Interest of A. F., 236 Ga. App. 60 (1) ( 510 SE2d 910 ) (1999). 8 Van Voltenburg v. State, 138 Ga. App. 628, 629 (1) ( 227 SE2d 451 ) (1976). 9 Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). 10 Williams v. State, 261 Ga. App. 793, 794 (2) ( 584 SE2d 64 ) (2003). 11 Pickard v. State, 257 Ga. App. 642, 643 (2) ( 572 SE2d 660 ) (2002). 12 Slaughter …
discussed Cited as authority (rule) Bogan v. State
Ga. Ct. App. · 2004 · confidence medium
Sutton v. State, 263 Ga. App. 188, 192 (3) ( 587 SE2d 379 ) (2003). “[A] mere verbal inaccuracy in a charge, which results from a palpable slip of the tongue, and clearly could not have misled or confused the jury, is not reversible error.” (Punctuation and footnote omitted.) Id. 4.
discussed Cited as authority (rule) Carson v. State
Ga. Ct. App. · 2003 · confidence medium
NOTES [1] Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). [2] Howard v. State, 251 Ga.App. 243, 245 (7), 553 S.E.2d 862 (2001). [3] Sutton v. State, 263 Ga.App. 188, 190 (1), 587 S.E.2d 379 (2003.) [4] Lloyd v. State, 258 Ga. 645, 648 (2)(b), 373 S.E.2d 1 (1988). [5] Woods v. State, 275 Ga. 844, 846 (3), 573 S.E.2d 394 (2002). [6] Blouin v. State, 255 Ga.App. 788, 789 , 567 S.E.2d 39 (2002). [7] See OCGA § 17-10-6.1(a)(2). [8] See West v. Waters, 272 Ga. 591 (1), 533 S.E.2d 88 (2000); Young v. State, 245 Ga.App. 684, 686 (3), 538 S.E.2d 760 (2000); OCGA § 17-…
discussed Cited "see" Land v. State (2×)
Ga. Ct. App. · 2008 · signal: see · confidence high
See Sutton v. State, 263 Ga. App. 188, 190 (1), n. 5 ( 587 SE2d 379 ) (2003); Dunn v. State, 208 Ga. App. 197, 198 (4) ( 430 SE2d 50 ) (1993).
discussed Cited "see, e.g." Harris v. the State (2×)
Ga. Ct. App. · 2015 · signal: see also · confidence low
See also Biggins v. State, 322 Ga. App. 286, 291 (3) (a) ( 744 SE2d 811 ) (2013) (holding that even if Biggins was not informed that a life sentence was mandatory, he knew that he could receive a life sentence and was therefore “sufficiently apprised of the risks of going to trial”) (citation and punctuation omitted). 16 264 Ga. App. 763 ( 592 SE2d 161 ) (2003). 17 See id. at 764 . 18 (Punctuation omitted.) Id. at 765 . 19 263 Ga. App. 188 ( 587 SE2d 379 ) (2003). 20 See id. at 190 (1). 21 Id. 22 2 89 Ga. 532 ( 712 SE2d 811 ) (2011). 23 See id. at 534-535. 24 (Citation and punctuation omit…
discussed Cited "see, e.g." Patel v. State (2×)
Ga. · 2007 · signal: compare · confidence low
Compare Sutton v. State, 263 Ga. App. 188 (3) ( 587 SE2d 379 ) (2003); Atkins v. State, 253 Ga. App. 169 (2) (b) ( 558 SE2d 755 ) (2002).
Sutton
v.
the State
A03A1158.
Court of Appeals of Georgia.
Sep 12, 2003.
587 S.E.2d 379
Donald B. Lowe III, for appellant., Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellee.
Ruffin, Smith, Miller.
Cited by 15 opinions  |  Published
Ruffin, Presiding Judge.

A jury found Darren Lavon Sutton and his co-defendant, Travis Betterson, guilty of armed robbery, possession of a firearm during the commission of a felony, and theft by receiving a motor vehicle. [1] On appeal, Sutton argues that he is entitled to a new trial because the trial court misinformed him about the sentencing possibilities before trial began, impacting his decision to reject the State’s plea offer. Sutton also claims that the trial court should have severed his trial from the trial of his co-defendant and should have granted a mistrial following an error in the jury instructions. For reasons that follow, we affirm.

Viewed in the light most favorable to the jury’s verdict, [2] the evi[*189] dence shows that in the early morning of July 24, 2000, Allen Griffin was at a gas station, preparing his truck for a trip to Florida. As Griffin checked his truck, he noticed a Cadillac arrive with two or three people inside. A man got out of the Cadillac and asked Griffin for directions to the rest room, and Griffin responded. A few moments later, another man ran toward Griffin with a gun and ordered him, at gunpoint, to empty his pockets onto the ground. Griffin saw the Cadillac move in front of his truck as the gunman picked up his possessions. Although Griffin did not see the gunman get into the Cadillac, the car drove away shortly after the gunman fled.

Griffin immediately reported the robbery and described the Cadillac to the police. Soon thereafter, an officer spotted a vehicle matching Griffin’s description. A chase ensued, ending when the Cadillac crashed. The officer then saw two men climb out of the car and run into the woods. When police searched the woods, they found Sutton and Betterson lying on the ground.

An officer brought Griffin to the scene of the wreck, where he identified Sutton as the man who robbed him. A search of the Cadillac produced three guns, as well as items belonging to Griffin. The police subsequently discovered that the Cadillac had been reported stolen a few days earlier.

1. Sutton argues that he is entitled to a new trial because a comment made by the trial judge allegedly “interfered with the attorney/ client relationship between [Sutton] and [his] trial counsel,” influencing his decision to decline a plea bargain offered by the State. We disagree.

The record shows that, in March 2000, Sutton pled guilty to theft by receiving stolen property and obstructing an officer. The court sentenced him to probation under the First Offender Act. [3] Prior to trial in this case, the court revoked Sutton’s probation and adjudicated him guilty of those charges, sentencing him to five years in prison.

Shortly before this trial began, defense counsel placed Sutton on the stand to question him regarding the State’s plea offer. Defense counsel informed him on the record that the minimum prison sentence for armed robbery is ten years, while the maximum prison sentence is life. [4] Counsel then prepared to tell Sutton that, because he had been indicted as a recidivist, the judge would be required to sentence him to the maximum — life imprisonment. At that point, however, the prosecutor interrupted, expressing doubt as to whether a life sentence would be mandatory since Sutton was a “first offender probationer,” rather than a convicted felon, at the time Griffin was[*190] robbed. The trial court interjected that “[t]he range of punishment [for armed robbery] is 10-20 [years in prison] or life.” Sutton later rejected the plea bargain. After the jury found him guilty, the court resolved the earlier confusion and properly sentenced him to life in prison pursuant to OCGA § 17-10-7 (a). [5]

We find no reversible error. Although the trial court did not inform Sutton that he would receive a mandatory life sentence if convicted, it clearly stated that life imprisonment was possible. We addressed a similar situation in Whitehead v. State, 6 in which we held that defense counsel does not provide ineffective assistance when, because of confusion about the applicable law, counsel tells the defendant that a statutorily mandated life sentence is a possibility, but not a certainty. We noted that such advice alerts the defendant that “the consequences of refusing the State’s [plea] offer . . . could be harsher than the consequences of accepting it.” [7]

While Sutton claims that the trial court, not his attorney, misled him, the Whitehead reasoning still applies. Because Sutton knew that he could receive a life sentence, he was sufficiently apprised of the risks of going to trial. [8] Accordingly, Sutton is not entitled to a new trial on this basis.

2. Sutton also argues that the trial court erred in denying his motion for severance and his corresponding motion for mistrial. The decision whether to grant a defendant’s motion for severance is within the sound discretion of the trial court. [9] When reviewing a severance motion, the court must consider three factors:

(1) whether the number of defendants creates confusion as to the law and evidence to be applied to each; (2) whether a danger exists that evidence admissible against one defendant might be considered against the other notwithstanding instructions to the contrary; and (3) whether the defenses are antagonistic to each other or each other’s rights. [10]

Sutton does not claim that the number of defendants created confusion here or that the evidence admissible against one might[*191] have been considered against the other. Instead, he argues that he and his co-defendant presented antagonistic defenses.

We fail to see any antagonism. The fact that neither Sutton nor his co-defendant testified or presented any evidence undermines Sutton’s claim that the joint trial impacted his defense. [11] Furthermore, in cross-examining the State’s witnesses, attorneys for both defendants raised the possibility of a third person in the Cadillac and tried to discredit the evidence against their own client. Sutton argues that comments by Betterson’s attorney during opening statements conflicted with his defense. [12] But, as the judge correctly instructed the jury, such statements by attorneys are not evidence. [13]

Even assuming that the defenses were somehow antagonistic, that fact alone does not require severance of the trials. [14] The defendant requesting severance must clearly show prejudice resulting in a denial of due process. [15] In this case, Griffin positively identified Sutton as the robber both before and during trial. And Betterson presented no evidence adverse to Sutton. Under these circumstances, we find no substantial likelihood that the joint trial prejudiced Sutton. [16] It follows that the trial court did not err in denying the motion to sever or the corresponding motion for mistrial.

3. In his final enumeration of error, Sutton argues that the trial judge erred in refusing to grant a mistrial following a misstatement in the jury instructions. Again, we disagree.

During the jury charge, the trial court instructed jurors on the verdict forms, stating as follows:

[T]here’s a separate form for each of the two defendants. . . . [0]n each of [the] three counts, . . . there are two choices: the top choice is not guilty, the second choice is guilty. It’s very simple, all you have to do is check off the verdict that applies in each case. The point, again, is to remember to consider each defendant guilty. [17]

After defense counsel made the trial court aware of the error, the judge called the jury back, explaining that he misspoke when he said “to find the defendants guilty.” He further stated that the jurors’ job[*192] was “to consider each of the defendants separately and return verdicts of guilty or not guilty as [they] determine [d] the evidence require [d].”

Decided September 12, 2003. Donald B. Lowe III, for appellant. Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellee.

While it is error for a judge to express his opinion as to the guilt of the accused, [18] “[a] mere verbal inaccuracy in a charge, which results from a palpable slip of the tongue, and clearly could not have misled or confused the jury, is not reversible error.” [19] Moreover,

[w]here a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence. [20]

Following the error, the trial court gave a curative instruction. The judge also instructed jurors before the error that they had the option of choosing guilty or not guilty for each defendant on each charge. And he explained that “[i]f, after giving careful consideration to all the facts and circumstances of this case [their] minds [were] wavering, unsettled or unsatisfied, then . . . [they] should acquit the defendant.” Finally, the trial judge emphasized during the charge that he did not intend, through any of his rulings or comments, to express an opinion regarding the case or the defendants’ guilt or innocence. After reviewing the charge as a whole, we are satisfied that the jury could not have been confused or misled by the trial court’s slip of the tongue. [21]

Judgment affirmed.

Smith, C. J., and Miller, J., concur.
1

Betterson has already appealed his conviction, which we affirmed. See Betterson v. State, 260 Ga. App. 812 (581 SE2d 331) (2003).

2

See McCollum v. State, 257 Ga. App. 330, 331 (571 SE2d 405) (2002).

5

Sentencing is the critical moment for determining whether a defendant is a convicted felon for purposes of recidivist treatment. See Daniels v. State, 271 Ga. 167, 168-169 (517 SE2d 66) (1999). By the time he was sentenced in this case, Sutton had been adjudicated guilty of the prior charges. Thus, the trial court correctly sentenced him as a recidivist. See id.

8

See id.

9

See Robinson v. State, 259 Ga. App. 555, 557 (1) (578 SE2d 214) (2003).

11

See Bryant v. State, 270 Ga. 266, 269-270 (2) (507 SE2d 451) (1998) (defenses not antagonistic where co-defendants do not present evidence at trial).

12

Betterson’s counsel asserted that Betterson was asleep in the back of the car at the time of the robbery, did not possess a weapon, and had no involvement in the vehicle theft.

13

See Hazelrigs v. State, 255 Ga. App. 784, 785 (1) (567 SE2d 79) (2002).

16

See Stephens v. State, 170 Ga. App. 267, 268 (1) (316 SE2d 847) (1984).

17

(Emphasis supplied.)

19

(Punctuation omitted.) Payne v. State, 248 Ga. App. 158, 161 (3) (b) (545 SE2d 336) (2001).

20

(Punctuation omitted.) Id.

21

See id.