☢ test - Í
there, ‘even though there hasn’t been one single smidgen of testimony to that effect from the witness stand.’ Id. at 750(2). ] Further, even if ‘James Edward White’ had been Griffin’s name at birth, once his new parents adopted him and changed his name, he was no longer ‘James Edward White’ because his legal name became ‘Walter James Griffin.’ See OCGA § 19-8-19 (the effect of a decree of adoption). Therefore, Griffin’s argument that his ‘birth name’ of ‘James Edward White’ was not technically a ‘false’ name for the purpose of finding him guilty of giving a false name to an officer lacks merit.” 29. OBJECTION AND CURATIVE INSTRUCTION Powell v. State, 291 Ga. 743, 733 S.E.2d 294 (October 15, 2012). Murder and related convictions affirmed; prosecutor’s closing argument was improper, but no basis for reversal. 1. Argument was improper. Prosecutor improperly argued that “prosecutors do not seek the indictment of persons whom they believe to be innocent” when she said, “[w]e don’t bring it to indictment if we think the person is innocent, if there is not enough evidence.” “See DaNamur v. State, 156 Ga.App. 270, 270(1), 274 S.E.2d 673 (1980) (improper for prosecutor to ask in closing argument ‘[w]ho wants to prosecute innocent people?’). Courts have correctly chastised prosecutors ‘for arguing or even suggesting that “the government only prosecutes guilty people.” This line of argument is forbidden because it implies that the prosecutor reached the determination that the defendant is guilty before trial and that the jury should weigh this fact in making its determination.’ United States v. Stefan, 784 F.2d 1093, 1100 (11 th Cir., 1986).” 2. Error was waived by failure to object. “‘In the appeal of a non-capital case, the defendant's failure to object to the State's closing argument waives his right to rely on the alleged impropriety of that argument as a basis for reversal.’ Scott v. State, 290 Ga. 883, 885(2), 725 S.E.2d 305 (2012) (citations and punctuation omitted). And a trial judge has no obligation under OCGA § 17–8–75 to rebuke a prosecuting attorney or give a curative instruction in the absence of a timely objection. See id.; Simmons v. State, 281 Ga. 437, 438(4), 637 S.E.2d 709 (2006).” Accord, Mann (December 11, 2003), and Mullins (January 19, 1999), below; Jones v. State , 318 Ga.App. 342, 733 S.E.2d 400 (October 19, 2012); Easter v. State , 322 Ga.App. 183, 744 S.E.2d 374 (June 12, 2013); Williams v. State , 326 Ga.App. 418, 756 S.E.2d 650 (March 20, 2014); Weldon v. State , 328 Ga.App. 163, 761 S.E.2d 566 (July 10, 2014); Smith v. State , 296 Ga. 731, 770 S.E.2d 610 (March 16, 2015) . 3. No ineffective assistance in failure to object, because improper comments were invited by defense counsel’s own improper argument, “speculating about the reasons for the prosecuting attorney having sought to indict Powell. When the time came for the prosecuting attorney to give her closing argument, she understandably attempted to respond to the earlier speculation about why Powell had been indicted.” In this context, defense counsel’s decision not to object was strategic and not unreasonable. “While Powell's lawyer could have objected to the improper remarks of the prosecuting attorney, he was ‘obviously vulnerable’ to an unfavorable result. [ United States v. Young, 470 U.S. 1, 13(III), 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)]. If he had objected, the trial judge would have rebuked the prosecuting attorney, but the judge might also have properly rebuked Powell's lawyer for his earlier speculation about the motives of the prosecuting attorney that invited her improper remarks in the first place. In these circumstances, a defense lawyer might reasonably conclude that little would be gained by an objection.” This doesn’t make prosecutor’s argument proper, but “under the ‘invited response’ or ‘invited reply’ doctrine, inappropriate prosecutorial comments ordinarily do not amount to prejudicial error if, taken in context, they were ‘invited’ by ‘defense counsel's opening salvo’ and ‘did no more than respond substantially in order to “right the scale.”’ Id. at 12–13(III) (footnote omitted).” Jupiter v. State, 308 Ga.App. 386, 707 S.E.2d 592 (March 11, 2011). Armed robbery and related convictions affirmed; defendant couldn’t raise objection to closing argument on appeal based on co-defendant’s objection at trial, not joined by defendant. “Jupiter's counsel did not join in this objection for the record, and there is no indication that he did so during closing argument either. Additionally, … there is nothing in the record suggesting that Jupiter and Hines agreed that their objections would be mutually applicable. Accordingly, Hines's objection did not preserve this issue for Jupiter.” O’Neal v. State, 288 Ga. 219, 702 S.E.2d 288 (November 8, 2010). Convictions for armed robbery and related offenses affirmed; trial court erred, but harmless, in failing to give a curative instruction after sustaining objection to prosecutor’s improper argument, even though no instruction was requested by defense. “OCGA § 17-8-75 … unambiguously indicates that where, as here, a prosecutor has made ‘statements [to the jury] of prejudicial matters which are not in evidence,’ and where a proper objection has been raised, ‘the court shall rebuke the counsel [who made the inappropriate statements] and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds.’ (Emphasis supplied.) OCGA § 17-8-75. … Nowhere in the statute is there a requirement for defense counsel to specifically request additional remedies after interposing an objection to the improper statements made by a prosecutor. To the contrary, the plain language of OCGA § 17-8-75 refers to the trial court’s independent duty, after defense counsel’s objection, to rebuke the prosecutor, give an appropriate curative instruction, or grant a mistrial in the event that the prosecutor has injected into the case prejudicial statements on matters outside of the evidence.” Harmless
Made with FlippingBook Ebook Creator