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AAAA. SIMILAR TRANSACTION EVIDENCE See EVIDENCE – SIMILAR TRANSACTIONS – HEARING ON MOTION, above BBBB. SPECTATOR MISCONDUCT Thompson v. State, 327 Ga.App. 893, 761 S.E.2d 413 (July 7, 2014). Voluntary manslaughter and related convictions affirmed; no ineffective assistance based on failure to move for mistrial based on audience conduct. “Thompson has not presented any evidence of the content of the outbursts or whether it was heard by the jury. Indeed, when the trial court issued its last warning on the matter, it indicated that the prosecutor may not have heard the statement because of his attention to the testimony. ‘Many, if not most, trials by jury involve some degree of emotion by at least one party or the other. It would be unreasonable to expect that all emotions be completely frozen during a trial by jury when such effective bridle on emotions cannot be sustained elsewhere.’ (Punctuation omitted.) Forney v. State, 255 Ga. 316, 318(3), 338 S.E.2d 252 (1986).” At the motion for new trial hearing, counsel testified that the family of the victims was behaving poorly during the duration of trial, but he did not believe it was necessary to ask for a mistrial or curative instruction regarding their behavior because the trial court ‘unloaded’ on them when it occurred, and he could not recall that any of the behavior occurred in front of the jury. At least one instance occurred during Thompson's testimony, and the trial court scathingly chastised the audience outside the jury's presence.” Walton v. State, 293 Ga. 607, 748 S.E.2d 866 (September 23, 2013). Malice murder and related convictions affirmed; no mistrial required based on victim’s fiancée fainting in the courtroom. “ See Forney v. State , 255 Ga. 316, 318(3), 338 S.E.2d 252 (1986) (finding no abuse of discretion when trial court denied a motion for a mistrial after the victim’s wife cried openly during closing argument and had to be escorted from the courtroom). Trial court here found that fiancee didn’t faint, but simply tripped while exiting courtroom. Ellis v. State, 316 Ga.App. 352, 729 S.E.2d 492 (June 25, 2012). Rape and related convictions affirmed; trial court properly denied motion for new trial based on defendant’s claim that he “had witnessed the deputy shaking his head while Ellis was testifying and that the jury could have seen him. However, as the trial court pointed out at the motion for new trial hearing, neither Ellis, his counsel, nor his mother ever notified the court, or otherwise objected to, any alleged inappropriate expressions or gestures on the part of the deputy, either at the time it occurred or any other point during the trial. Nor does the trial record reflect any improper behavior by the deputy during Ellis's testimony. Moreover, the trial court had no memory or knowledge of such behavior by the deputy during the trial. Based on the foregoing, the trial court denied Ellis's motion for new trial on this ground. And given the absence of any evidence that the jury, either individually or as a group, in fact witnessed any alleged gestures or facial expressions made by the deputy during Ellis's testimony, we cannot say that the trial court abused its discretion in doing so.” Brinson v. State, 289 Ga. 551, 713 S.E.2d 862 (July 11, 2011). Malice murder conviction affirmed; mistrial not required where spectator misconduct not shown to have affected jury. “During the State's case-in-chief, the trial court was notified by the bailiff that ‘noises’ were being made by members of the victim's family who had been observing the trial. The court removed the jury and instructed the prosecutor to caution the family, ‘as forceful[ly] as possible,’ to refrain from such conduct. Defense counsel moved for a mistrial arguing that the inappropriate conduct could taint the jury and deprive appellant of a fair trial. In response, the prosecutor stated in her place that while she did not doubt that ‘noises’ were made, she was standing near the jury and did not hear anything. In addition, she took ‘appropriate action’ and had the family members removed from the courtroom. The court denied Brinson's motion for a mistrial, noting that it did not hear any noises emanating from the spectators, nor did it observe any reaction from the jurors.” Gilbert v. State, 291 Ga.App. 898, 663 S.E.2d 299 (June 16, 2008). No mistrial based on “outbursts by the victim’s family” in defendant’s trial for kidnapping and aggravated assault. “After the State began introducing evidence of the victim's injuries, Gilbert’s trial counsel moved for a mistrial. He stated that as the pictures were being introduced, members of the victim’s family were audibly sobbing and that the bailiff gave one of the family members a tissue. When one of the family left the court room, he said the bailiff went out ‘to console.’ Both the prosecution and the judge noted, however, that the trial was being held in a very small courtroom and neither of them had heard any sobbing or other disturbance. The trial court then denied Gilbert’s motion for mistrial. No curative instructions were requested or given at this at the time. … ‘ Many, if not most, trials by jury involve some degree of emotion by at least one party or the other. It would be unreasonable to expect that all emotions be completely frozen during a trial by jury when such effective bridle on emotions cannot be sustained elsewhere.’ (Citations and punctuation omitted.) Forney v. State, 255 Ga. 316, 318(3) (338 S.E.2d 252) (1986). ‘Measures to be taken as a result of demonstrations and outbursts which occur during the course of a trial are matters within the trial court’s discretion unless a new trial is necessary to insure a fair