FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
March 13, 2014
In the Court of Appeals of Georgia A13A1691. COLLINS v. THE STATE.
MCFADDEN, Judge.
After a jury trial, Jamal Collins was convicted of armed robbery, possession of
a firearm during the commission of a crime and possession of an article with an
altered identification mark. He appeals, challenging the sufficiency of the evidence,
the failure to have him psychologically evaluated before trial, an alleged comment on
his co-defendant’s right to remain silent, the imposition of sentence by a substitute
judge, the judge’s failure to exercise discretion in imposing sentence and the trial
court’s refusal to grant a new trial based on the admission of allegedly improper
evidence. However, there is enough evidence to support the verdict, Collins failed to
obtain a ruling as to an evaluation and acquiesced in trying the case without an
evaluation, he was not prejudiced by the comment regarding the co-defendant, a substitute judge was necessitated by the death of the trial judge and Collins has
shown no harm in the substitute judge imposing sentence, the sentencing judge
properly exercised his discretion, and Collins has not specified any purportedly
improper evidence and has thus abandoned any such claim of error. Accordingly, we
affirm.
1. Sufficiency of the evidence.
Collins claims that there is insufficient evidence to support his convictions. The
claim is without merit.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Brown v. State, 318 Ga. App. 334, 334-335 (733 SE2d 863) (2012) (citations and
punctuation omitted).
So viewed, the evidence shows that the victim was sitting in his truck when a
car pulled up beside him. Collins got out of the passenger side of the car, approached
the victim with a handgun, ordered him to turn off his truck, and demanded his keys
and wallet. The victim complied, and Collins told him that since “we have got your
2 ID, don’t tell anybody or we’ll get you.” Collins got back in the car and fled with the
accomplice driver. Collins and his co-defendant were subsequently stopped by deputy
sheriffs who had received a call to be on the lookout for the car. Inside the car,
investigators found the victim’s wallet and keys, and the handgun, which had the
serial number scraped off of it. The evidence was sufficient to authorize a rational
trier of fact to find Collins guilty beyond a reasonable doubt of charged offenses. See
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2. Psychological evaluation.
Collins contends that the trial court erred in failing to have him psychologically
evaluated prior to trial. Although his attorney filed a petition for an evaluation, he
never obtained a ruling from the trial court on it. Rather, counsel and Collins
proceeded to trial without an evaluation, fully participated in the trial, had Collins
testify at trial, never objected to the lack of a ruling by the trial court on the petition,
and did not raise the matter as an issue in his motion for new trial. Under these
circumstances, there is nothing for us to review. “Appellate courts exist to review
asserted error but where the defendant makes no objection or obtains no ruling of the
trial court, the contended problem cannot be made the basis of appellate review as
there is no ruling to review.” Fennell v. State, 271 Ga. App. 797, 799 (2) (611 SE2d
3 96) (2005) (citation and punctuation omitted). See also Wilson v. State, 277 Ga. 195,
200 (2) (586 SE2d 669) (2003) (claim that trial court’s failure to allow pre-trial
psychiatric evaluation prevented effective representation not preserved for appellate
review where it was not raised on motion for new trial).
3. Co-defendant’s right to remain silent.
Collins complains that the trial court erred in failing to grant him a mistrial
after the state impermissibly commented on his co-defendant’s right to remain silent.
We disagree.
While cross-examining the co-defendant about his testimony concerning a set
of car keys, the prosecutor said, “And you haven’t told anyone this story until this
morning; isn’t that right?” The co-defendant’s attorney objected and moved for a
mistrial on the ground that it was an improper comment on the co-defendant’s right
to remain silent. The trial court sustained the objection, but denied the motion for a
mistrial. After that ruling, counsel for Collins moved for a mistrial “to the extent
[Collins’] rights may be prejudiced by the fact that this question was asked to [the co-
defendant.]” The trial court asked how Collins was prejudiced by the question posed
to the co-defendant, and counsel for Collins offered no showing of prejudice. The
trial court then denied Collins’ motion.
4 “Whether to grant a motion for a mistrial is within the sound discretion of the
trial court, and this [c]ourt will not disturb the ruling on appeal unless it resulted from
a manifest abuse of that discretion. [Cit.]” Dulcio v. State, 292 Ga. 645, 648 (2) (740
SE2d 574) (2013). Here, the trial court did not abuse its discretion in denying Collins’
motion for a mistrial based on a question posed to his co-defendant, which Collins
has failed to show prejudiced him in any way. See Sheats v. State, 231 Ga. 362, 363-
364 (3) (201 SE2d 420) (1973) (no error in refusing to grant mistrial where
prosecutor referred to co-indictees’ right not to testify, but made no reference to
appellant); Mayfield v. State, 220 Ga. App. 19, 20 (2) (467 SE2d 352) (1996) (no
prejudice where appellant failed to show that evidence admitted against co-defendant
was considered against him).
4. Substitute judge for sentencing.
After the jury returned its verdict, but before sentence was imposed, the
superior court judge who presided over the trial died. Collins moved to set aside the
verdict, but a judge of the same court denied the motion and imposed sentence.
Collins claims it was error for the substitute judge to deny the motion and impose
sentence. The claim is without merit.
5 As an initial matter, we note that a court may seek assistance from another
judge in the same county where a judge of the court “is unable to preside because of
disability, illness, or absence.” OCGA § 15-1-9.1 (b) (2) (B). See also McIntyre v.
State, 266 Ga. 7, 18 (4) (463 SE2d 476) (1995) (Sears, J., concurring in part and
dissenting in part) (substitution of a judge may be necessitated by incapacitation of
the judge by death or debilitating illness or trauma). Nevertheless, even if we assume
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FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
March 13, 2014
In the Court of Appeals of Georgia A13A1691. COLLINS v. THE STATE.
MCFADDEN, Judge.
After a jury trial, Jamal Collins was convicted of armed robbery, possession of
a firearm during the commission of a crime and possession of an article with an
altered identification mark. He appeals, challenging the sufficiency of the evidence,
the failure to have him psychologically evaluated before trial, an alleged comment on
his co-defendant’s right to remain silent, the imposition of sentence by a substitute
judge, the judge’s failure to exercise discretion in imposing sentence and the trial
court’s refusal to grant a new trial based on the admission of allegedly improper
evidence. However, there is enough evidence to support the verdict, Collins failed to
obtain a ruling as to an evaluation and acquiesced in trying the case without an
evaluation, he was not prejudiced by the comment regarding the co-defendant, a substitute judge was necessitated by the death of the trial judge and Collins has
shown no harm in the substitute judge imposing sentence, the sentencing judge
properly exercised his discretion, and Collins has not specified any purportedly
improper evidence and has thus abandoned any such claim of error. Accordingly, we
affirm.
1. Sufficiency of the evidence.
Collins claims that there is insufficient evidence to support his convictions. The
claim is without merit.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Brown v. State, 318 Ga. App. 334, 334-335 (733 SE2d 863) (2012) (citations and
punctuation omitted).
So viewed, the evidence shows that the victim was sitting in his truck when a
car pulled up beside him. Collins got out of the passenger side of the car, approached
the victim with a handgun, ordered him to turn off his truck, and demanded his keys
and wallet. The victim complied, and Collins told him that since “we have got your
2 ID, don’t tell anybody or we’ll get you.” Collins got back in the car and fled with the
accomplice driver. Collins and his co-defendant were subsequently stopped by deputy
sheriffs who had received a call to be on the lookout for the car. Inside the car,
investigators found the victim’s wallet and keys, and the handgun, which had the
serial number scraped off of it. The evidence was sufficient to authorize a rational
trier of fact to find Collins guilty beyond a reasonable doubt of charged offenses. See
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2. Psychological evaluation.
Collins contends that the trial court erred in failing to have him psychologically
evaluated prior to trial. Although his attorney filed a petition for an evaluation, he
never obtained a ruling from the trial court on it. Rather, counsel and Collins
proceeded to trial without an evaluation, fully participated in the trial, had Collins
testify at trial, never objected to the lack of a ruling by the trial court on the petition,
and did not raise the matter as an issue in his motion for new trial. Under these
circumstances, there is nothing for us to review. “Appellate courts exist to review
asserted error but where the defendant makes no objection or obtains no ruling of the
trial court, the contended problem cannot be made the basis of appellate review as
there is no ruling to review.” Fennell v. State, 271 Ga. App. 797, 799 (2) (611 SE2d
3 96) (2005) (citation and punctuation omitted). See also Wilson v. State, 277 Ga. 195,
200 (2) (586 SE2d 669) (2003) (claim that trial court’s failure to allow pre-trial
psychiatric evaluation prevented effective representation not preserved for appellate
review where it was not raised on motion for new trial).
3. Co-defendant’s right to remain silent.
Collins complains that the trial court erred in failing to grant him a mistrial
after the state impermissibly commented on his co-defendant’s right to remain silent.
We disagree.
While cross-examining the co-defendant about his testimony concerning a set
of car keys, the prosecutor said, “And you haven’t told anyone this story until this
morning; isn’t that right?” The co-defendant’s attorney objected and moved for a
mistrial on the ground that it was an improper comment on the co-defendant’s right
to remain silent. The trial court sustained the objection, but denied the motion for a
mistrial. After that ruling, counsel for Collins moved for a mistrial “to the extent
[Collins’] rights may be prejudiced by the fact that this question was asked to [the co-
defendant.]” The trial court asked how Collins was prejudiced by the question posed
to the co-defendant, and counsel for Collins offered no showing of prejudice. The
trial court then denied Collins’ motion.
4 “Whether to grant a motion for a mistrial is within the sound discretion of the
trial court, and this [c]ourt will not disturb the ruling on appeal unless it resulted from
a manifest abuse of that discretion. [Cit.]” Dulcio v. State, 292 Ga. 645, 648 (2) (740
SE2d 574) (2013). Here, the trial court did not abuse its discretion in denying Collins’
motion for a mistrial based on a question posed to his co-defendant, which Collins
has failed to show prejudiced him in any way. See Sheats v. State, 231 Ga. 362, 363-
364 (3) (201 SE2d 420) (1973) (no error in refusing to grant mistrial where
prosecutor referred to co-indictees’ right not to testify, but made no reference to
appellant); Mayfield v. State, 220 Ga. App. 19, 20 (2) (467 SE2d 352) (1996) (no
prejudice where appellant failed to show that evidence admitted against co-defendant
was considered against him).
4. Substitute judge for sentencing.
After the jury returned its verdict, but before sentence was imposed, the
superior court judge who presided over the trial died. Collins moved to set aside the
verdict, but a judge of the same court denied the motion and imposed sentence.
Collins claims it was error for the substitute judge to deny the motion and impose
sentence. The claim is without merit.
5 As an initial matter, we note that a court may seek assistance from another
judge in the same county where a judge of the court “is unable to preside because of
disability, illness, or absence.” OCGA § 15-1-9.1 (b) (2) (B). See also McIntyre v.
State, 266 Ga. 7, 18 (4) (463 SE2d 476) (1995) (Sears, J., concurring in part and
dissenting in part) (substitution of a judge may be necessitated by incapacitation of
the judge by death or debilitating illness or trauma). Nevertheless, even if we assume
some error in seeking such assistance in the instant case, “any error in the substitution
of judges is subject to harmless error analysis. [Cits.]” McIntyre, supra at 9 (2).
Collins has shown “no harm resulting from the substitution [after the death] of the
trial judge[].” Speed v. State, 270 Ga. 688, 698 (42) (512 SE2d 896) (1999) (citation
omitted) (no harm where trial judge left town due to family member’s illness and
substitute judge gave charge to jury and presided over deliberations). See also Cooper
v. State, 281 Ga. 760, 761 (3) (642 SE2d 817) (2007) (no harm where, after
unspecified emergency, substitute judge accepted verdict from the jury); McIntyre,
supra at 8-9 (2) (no harm where trial judge left to attend funeral and substitute judge
presided over end of trial). Accordingly, this enumeration provides no basis for
reversal of the trial court’s judgment.
5. Exercise of sentencing discretion.
6 Collins contends that the sentencing judge did not exercise any discretion in
sentencing him to 20 years for the armed robbery, pointing to the judge’s comments
that “[i]n this circuit you ain’t going to get 10 years if you get out with a loaded gun
and stick it in somebody’s face and take their money” and that “[t]he only question
is life or 20 years no parole.” Indeed, a court’s use of a mechanical sentencing
formula amounts to a refusal to exercise its discretion. Cottingham v. State, 206 Ga.
App. 197, 199 (3) (424 SE2d 794) (1992). The test is “whether the statement by the
court clearly, i.e., unambiguously, shows a misunderstanding of the law or a general
policy of not exercising discretion.” McCullough v. State, 317 Ga. App. 853, 854-855
(733 SE2d 36) (2012) (emphasis in original; citation and punctuation omitted).
Moreover, we consider the judge’s remarks as a whole. Id.
The transcript of the sentencing hearing shows that prior to the remarks in
question, the judge gave a lengthy summary of the evidence and noted the minimum
possible sentence of ten years. Considered as a whole, we do not believe the trial
court’s remarks indicate either a misunderstanding of the law or a general policy of
not exercising discretion. Rather, he clearly knew the possible sentencing range and,
based on the manner in which the armed robbery was committed, determined that
neither the minimum nor maximum sentence was appropriate, and that instead a 20-
7 year sentence was authorized. Accordingly, we find that the trial court did not employ
a mechanical formula in imposing the sentence in this case. See Williams v. State, 221
Ga. App. 98, 99 (470 SE2d 489) (1996).
6. New trial.
Collins enumerates that the trial court abused its discretion when it failed to
grant him a new trial, claiming that he objected to hearsay and other illegal evidence.
However, he has not indicated any specific evidence upon which this enumeration is
based and he has made no citations to the record or transcript. “In the absence of such
reference [to the record or transcript], the Court will not search for or consider such
enumeration.” Court of Appeals Rule 25 (c) (2) (i). See Massey v. State, 278 Ga. App.
303, 307 (3) (628 SE2d 706) (2006) (enumeration of error abandoned where appellant
failed to specify allegedly improper evidence).
Judgment affirmed. Doyle, P. J., and Boggs, J., concur.