Hunter v. State

582 S.E.2d 228, 261 Ga. App. 276, 2003 Fulton County D. Rep. 1653, 2003 Ga. App. LEXIS 610
CourtCourt of Appeals of Georgia
DecidedMay 15, 2003
DocketA03A0005
StatusPublished
Cited by3 cases

This text of 582 S.E.2d 228 (Hunter v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hunter v. State, 582 S.E.2d 228, 261 Ga. App. 276, 2003 Fulton County D. Rep. 1653, 2003 Ga. App. LEXIS 610 (Ga. Ct. App. 2003).

Opinion

Barnes, Judge..

John Frederick Hunter appeals his conviction for armed robbery. He contends the trial court erred by failing to charge on the lesser included offenses of robbery and theft by taking, by failing to hold the hearing required by OCGA § 17-10-2, and by sentencing him to serve a life sentence without parole. Hunter also contends his trial defense counsel was ineffective because he did not file a motion to suppress evidence that the victim identified Hunter at a police “show-up.”

Viewed most favorably in support of the. verdict, the evidence shows that, although he did not know him, one night Hunter went to the victim’s home to borrow some money from him. After Hunter told him that he needed money to get his baby some milk and that he would repay him the next day, the victim loaned him $20.

The next night Hunter did return to the victim’s home, but said that he could not pay him because Hunter only had a large bill and no change. When the victim attempted to get change, Hunter pulled a knife, held the knife near the side of the victim’s neck, and took $200 from the victim’s wallet. Hunter did not make any verbal [277]*277threats to the victim. After he took the money, Hunter ran away out the door.

About two hours later, Hunter returned to the victim’s home, but when he saw the victim’s son with a shotgun, he ran away and left in a little white pickup truck. Later, the pickup truck was stopped by the police, and Hunter and two companions were inside. The officer who stopped the truck found a knife similar to the one used to take the money from the victim in back of the passenger’s seat. Hunter admitted that he possessed the knife, but denied using it to rob the victim. The driver of the pickup stated that he took Hunter to the victim’s home on the three occasions.

Testifying in his own defense, Hunter admitted going to the victim’s house and borrowing the money. He denied, however, that he used the knife to get the money from the victim. He said that the victim gave him the money because of his lies. He said he went to the victim’s home the last time to apologize and say that he would pay him back the next day.

After the jury found Hunter guilty as charged, a hearing was conducted in which the court received a record of four previous convictions that had been served upon Hunter. When asked whether he had any objections to these matters, Hunter replied that he had none. The State asked that Hunter be sentenced under subsection (c) of OCGA § 17-10-7 because he had four previous felony convictions. Although Hunter initially objected because the notice of matters in aggravation did not state the section under which the State was seeking punishment, the trial court offered Hunter more time before sentencing, and he declined. Before imposing sentence, the court asked if Hunter had anything to say, but he said, "No, all I did was tell the truth, I want to apologize.” The court then sentenced Hunter to life in prison without parole.

1. Hunter’s contentions that the trial court erred by not charging the jury on the lesser included offenses of robbery and theft by intimidation are without merit. The record shows that Hunter did not submit a written request for a charge on robbery as a lesser included offense of armed robbery. Therefore, the trial court did not err by refusing to give such a charge. Mosley v. State, 257 Ga. 382,-383 (2) (359 SE2d 653) (1987). A charge on the lesser included offense of robbery was requested by the State and refused by the trial court,1 but Hunter did not join in this request. Pretermitting the issue, of whether Hunter is entitled to rely upon the State’s request to charge, we find that a charge on robbery was not raised by the evidence.

One commits tbe offense of robbery when, with intent to commit [278]*278theft, he takes the property of another from the person or the immediate presence of another by force, by intimidation, by threat or coercion, by placing the victim in fear of immediate serious bodily injury to himself or to another, or by sudden snatching. OCGA § 16-8-40. One commits the offense of armed robbery, however, when, with intent to commit theft, he. takes the property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon. OCGA § 16-8-41.

Here, the victim’s testimony, discussed above, was sufficient to warrant a charge on armed robbery. Conversely, Hunter’s testimony did not warrant a charge on robbery or theft by taking. Hunter not only denied using the knife to get the money from the victim, but he also said that the victim gave him the money because he lied to the victim. The victim’s testimony confirmed that Hunter did not orally threaten him. Under these circumstances the evidence did not authorize charges on the lesser included offenses of robbery and theft by taking.

“The complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the [Sjtate’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” (Citation and punctuation omitted.) Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994). “Where the evidence shows either the completed offense as charged or no offense, such evidence will not support a verdict for one of the lesser grades of the offense, and the court should not charge on the lesser grades of the offense.” Burley v. State, 172 Ga. App. 34, 35 (3) (b) (321 SE2d 783) (1984). Hence, the trial court did not err by not charging on these lesser included offenses.

2. Hunter also alleges that the trial court erred by sentencing him to life without parole because the notice of intent to introduce matters in aggravation provided him2 did not set out the subsection of OCGA § 17-10-7 under which the State intended to proceed and the previous convictions themselves were not certified. Hunter also alleged that two of the previous convictions could not be used in aggravation of his sentence as they did not show that he was represented by counsel.

We find no merit to these allegations. A supplemental record containing a stipulation of counsel under OCGA § 5-6-41 (f) that was approved by the trial court has been forwarded to this court. The [279]*279stipulation shows that the previous convictions were certified, but the court reporter inadvertently omitted the certification page from the transcript. Additionally, as noted above, Hunter waived any objections concerning the records of previous convictions themselves. Howard v. State, 233 Ga. App. 724, 726 (1) (a) (505 SE2d 768) (1998).

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Bluebook (online)
582 S.E.2d 228, 261 Ga. App. 276, 2003 Fulton County D. Rep. 1653, 2003 Ga. App. LEXIS 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunter-v-state-gactapp-2003.