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Cordis v. State2/23/1999
In the Court of Appeals of Georgia
William Walcott Cordis was convicted of aggravated assault on a police officer, obstruction, no proof of insurance, driving without a license, and interference with government property. On appeal, he enumerates four errors.
This case arose while the arresting officer was investigating complaints of a disturbance between two vehicles at the drive-through window of a local fast-food restaurant. The officer was initially informed that both vehicles had left. However, as he was completing some paperwork, an employee pointed out that one of the offending vehicles remained in a nearby parking lot. The officer approached the car, which Cordis was driving, asked for a driver's license and proof of insurance and noticed an open can of beer on the seat. Cordis emitted a strong odor of alcoholic beverages and his eyes were glassy and bloodshot. After a lengthy search, Cordis produced neither his license nor proof of insurance. When the officer asked Cordis to step out of the car, Cordis appeared to have trouble standing and slurred his speech.
At that point, the officer informed Cordis that he was under arrest of driving under the influence ("DUI"). As Cordis was being handcuffed, he jerked away from the officer and became loud, abusive, and profane. Cordis kicked the officer, refusing to enter the patrol car. The officer radioed for back-up, and it took four officers to shackle Cordis and get him into the patrol car.
On the way to jail, Cordis continued his profanity and abuse. Suddenly, the arresting officer heard a loud pop from the back of his patrol car which sounded like Cordis had hit the plexiglass divider behind the officer's head with the handcuffs. Then the officer felt Cordis' hands grabbing his shoulder. Cordis had broken the plexiglass. The officer then felt a sharp, stabbing sensation in his shoulder as Cordis poked him with a piece of broken plexiglass. The officer braked as hard as he could, leaving 172 feet of skidmarks, and left the car. After other officers arrived on the scene, Cordis was subdued and transported to jail. The arresting officer received a tetanus shot; the small lacerations he received required no bandaging or other treatment. Held:
1. Cordis argues that the trial court's refusal to instruct the jury on simple assault requires reversal. But the record shows that the trial court charged the substantially identical language Cordis requested defining simple assault in his request to charge number 4, which tracked the language of OCGA § 16-5-20 (a).
After deliberations commenced, however, the jury inquired whether the charge could be reduced to assault. The court inexplicably responded in the negative, stating that it "had to find the defendant either not guilty or guilty of aggravated assault." Notwithstanding the fact that it instructed the jury on simple assault, the court reasoned that its refusal to charge on the lesser included offense precluded a verdict on simple assault. Cordis properly preserved his objection to this decision.
Although simple assault is necessarily a lesser included offense of aggravated assault, trial courts need not authorize juries to enter verdicts on the lesser crime in every case. Prayor v. State, 217 Ga. App. 56, 58 (3) (456 SE2d 664) (1995). Where the evidence of whether an alleged aggravated assault was committed with a deadly weapon is disputed, however, the refusal to give a properly requested charge on assault as a lesser included offense is error. Id.
Here, that issue was clearly disputed, as is reflected by the trial court's instruction that the jury had to decide whether the plexiglass constituted a deadly weapon
Page 1 2 Georgia DUI Attorneys
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