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Cunningham v. State

Defendant's acquiescence in the introduction of his co-indictee's statements and convictions precluded his objection to that evidence on appeal.

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The questions on appeal are threefold: i whether the trial court abused its discretion in denying a motion for continuance where the defendant had substituted new counsel shortly before trial and where this new counsel had difficulty in obtaining transcripts of the completed trial of co-indictees; ii whether defendant could first consent to the admission of the co-indictees’ statements and convictions as part of a trial strategy of blaming the co-indictees for the crimes and then argue on appeal that such evidence should not have been admitted; and iii whether this unsuccessful trial strategy demanded a finding that defendant received ineffective assistance of counsel. We answer each question in the negative and affirm.

Construed in favor of the verdict, the evidence showed that in June 1995 William Cunningham and two other men surrounded the victim in an apartment complex parking lot as she was transferring suitcases from her car to her boyfriend’s truck. Cunningham brandished a gun and demanded her money, which he and the others took along with her jewelry and other personal property. Realizing that a neighbor was witnessing the robbery, Cunningham demanded her car keys, forced her into the back seat of her car with him at her side, and had one of the other men drive the car away with the remaining man seated in front. Cunningham forced the victim at gunpoint to perform oral sex on him and to disrobe, whereupon he placed her on his lap and partially penetrated her. Cunningham then forced her into the trunk, from which she later escaped with injury after unlatching the lock.

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