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Peake v. State

The trial court properly recharged the jury on conspiracy without recharging on mere presence and mere association.

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James Peake, Sr., was convicted of burglary, possession of tools for the commission of burglary, possession of a firearm during the commission of a felony, attempting to elude, and two counts of aggravated assault on a police officer. On appeal, Peake raises two issues: 1 whether the trial court improperly commented on the jury’s recharge question and erred in recharging the jury on conspiracy without also recharging on mere presence and mere association; and 2 whether the prosecution violated his right to due process by presenting testimony from a co-defendant that it knew or should have known was perjured. We affirm because we find that the court made no improper comment to the jury and did not err in recharging solely on conspiracy, and that the record does not show that the prosecution presented testimony which it knew or should have known was perjured.

Peake’s charges arise out of the burglary of a First Union automated teller machine ATM in Cobb County. A Cobb County sheriff’s deputy responded to an alarm at the bank and found Peake sitting in the driver’s seat of a van parked next to the ATM. While the officer was questioning Peake, an accomplice wearing a mask and carrying a satchel opened the van’s side door. The officer saw that the ATM had been opened and drew his weapon. A gunfight ensued, with shots being fired by Peake’s accomplices, Joseph Kenner and Nathan O’Hannon. One bullet struck the officer on his magazine pouch but did not injure him. Peake and O’Hannon fled the scene in the van and were captured after a high-speed chase. Kenner had been shot several times in the gunfight and was arrested at the scene.

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