328 Ga. App. 822
Ga. Ct. App.2014Background
- Tamara Cotman was indicted in Fulton County on a RICO conspiracy charge (Count 1) alleging multiple racketeering and overt acts, including an influencing-witness act, and on a separate influencing-witness charge (Count 4) in the First Indictment.
- The State re-indicted Cotman on the influencing-witness charge (Second Indictment) with additional factual specificity; the State moved to nolle prosequi Count 4 of the First Indictment and to join the indictments.
- Cotman objected to joinder, demanded a speedy trial on the Second Indictment, and was tried separately on the Second Indictment; she was acquitted of influencing witnesses.
- After that acquittal, the State sought to proceed on the RICO conspiracy charge in the First Indictment, which included the influencing-witness act as a predicate; Cotman filed a plea in bar under OCGA § 16-1-8 and a special demurrer challenging Count 4’s factual specificity.
- The trial court denied Cotman’s plea in bar as to the RICO conspiracy count, finding Cotman had elected separate trials; the court denied her demurrer but the State agreed not to proceed on Count 4 of the First Indictment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OCGA § 16-1-8 bars prosecution on the First Indictment after acquittal on the influencing-witness charge | Cotman: § 16‑1‑8(b) bars subsequent prosecution because the influencing-witness charge arose from the same conduct and should have been tried together | State: Cotman opposed joinder and elected separate trials; thus she waived § 16‑1‑8 protection | Court: Denied plea in bar; Cotman’s election to try indictments separately waived the statutory bar |
| Whether trial court erred in denying special demurrer to Count 4 for lack of factual specificity | Cotman: Count 4 failed to allege how she intimidated the witness, so it should be quashed | State: Count 4 provided sufficient allegations; moreover, State did not oppose plea in bar as to Count 4 and later moved to nol pros | Court: Demurrer claim is moot because the State will nol pros Count 4 and did not oppose the plea in bar as to Count 4 |
| Whether federal double jeopardy principles forbid second prosecution when defendant sought separate trials | Cotman: Relies on statutory protections; seeks to prevent subsequent prosecution based on same conduct | State: Cites authority that a defendant who elects separate trials cannot later complain of multiple prosecutions | Court: Adopted rule that a defendant’s election/severance can waive challenge; no double jeopardy bar here |
| Whether influencing-witness acquittal collateral estops the State from using that predicate in RICO count | Cotman: Suggests collateral estoppel should prevent relitigation of that factual predicate | State: Did not concede the issue; court did not rule on collateral estoppel | Court: Expressed no opinion on collateral estoppel; issue not resolved here |
Key Cases Cited
- Garrett v. State, 306 Ga. App. 429 ( appellate standard for reviewing double-jeopardy pleas and related legal principles)
- Prater v. State, 273 Ga. (rule that offenses arising from same conduct and within one court should be prosecuted together)
- McCannon v. State, 252 Ga. (OCGA § 16‑1‑8 embodies res judicata concept protecting against subsequent prosecutions)
- Jeffers v. United States, 432 U.S. 137 (defendant’s election to separate trials can forfeit double jeopardy protection)
- Holcomb v. State, 268 Ga. (party cannot complain on appeal about rulings to which she contributed by her own conduct)