Callaham v. State

The trial court's restitution order on retrial, along with a straight prison term with no probation, was proper even though it increased the defendant's original sentence.

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Anthony Callaham was tried and convicted of aggravated assault and possession of a firearm during the commission of a felony in connection with his shooting Kenneth Threats. He was sentenced to fifteen years to serve for aggravated assault and five years probation on the firearm charge. This Court reversed the conviction and remanded for new trial because the trial court expressed an opinion as to the credibility of a witness in violation of OCGA § 17-8-57. See Callaham v. State, 305 Ga. App. 626, 628 1 700 SE2d 624 2010. On retrial, Callaham was again convicted of aggravated assault, but the jury deadlocked on the firearm charge. The same judge again sentenced Callaham to 15 years to serve, but this time he ordered Callaham to pay the victim restitution. On appeal from the second conviction, Callaham contends the trial court erred in connection with giving the jury an Allen charge1 and erred by ordering restitution in favor of the victim when none had been ordered following the first trial.

The record shows the following procedural events. The second trial and closing argument occurred on a single day, whereupon the jury was sent home to return at 10:00 a.m. the next day for the jury charge. Neither side objected to that procedure. The next morning, the court charged the jury, following which there were no objections, and the jury began deliberations just before 10:35. At 11:10 a.m., the jury asked the court to repeat the definition of aggravated assault, to which there was no objection. Some time thereafter, the jury asked if they could read the testimony of two witnesses; the judge denied the request and, without objection, instructed the jury that they must rely on their collective memories concerning all testimony. The jury also noted that they were “hung up,” and the State asked for an Allen charge; the court declined, and the jury continued deliberations. This all occurred prior to lunch; the jury had been deliberating for about two hours at this point.

Callaham v. State

The trial court's restitution order on retrial, along with a straight prison term with no probation, was proper even though it increased the defendant's original sentence.

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