Sweatt v. State
| Decision Date | 30 April 1979 |
| Docket Number | No. 57033,57033 |
| Parties | SWEATT v. The STATE. |
| Court | Georgia Court of Appeals |
Charles A. DeVaney, Augusta, for appellant.
Richard E. Allen, Dist. Atty., Michael C. Eubanks, Asst. Dist. Atty., for appellee.
This appeal follows defendant's conviction for theft of a motor vehicle. See Code Ann. § 26-1813. We affirm.
1. At trial, defense counsel made an opening statement following the close of the state's evidence. In his opening statement, defense counsel related that he expected to prove that two others stole the truck; that appellant was a hitchhiker who had the misfortune of being a passenger in the stolen vehicle; that the two thieves abandoned the truck; and that the accused was apprehended while on his way to return the truck to its rightful owner. After counsel made this statement, the defense rested without presenting any evidence.
In closing arguments, the district attorney argued to the jury as follows: After the court rebuked the assistant district attorney and fully instructed the jury to disregard any comment concerning the accused's failure to testify, the assistant district attorney continued his argument to the jury by discussing reasonable doubt, and stated:
Counsel for defendant submits that the court erred in denying his motions for mistrial, which motions were made on the basis that the state had impermissibly commented on the defendant's failure to testify. See Code Ann. § 38-415. We find no such error.
As to the first statement, the trial court's curative action eliminated the assistant district attorney's improper comment from jury consideration. Lingerfelt v. State, 238 Ga. 355(5), 233 S.E.2d 356. The second comment was a permissible reference to the issues raised by defense counsel's opening statement and did not amount to a comment on the accused's failure to testify. Ingram v. State, 134 Ga.App. 935(9), 216 S.E.2d 608. Cf. Wood v. State, 234 Ga. 758(2), 218 S.E.2d 47.
As we find that the assistant district attorney's statements do not warrant a new trial, we need not consider the state's contention, citing Rivers v. State, 147 Ga.App. 19(3), 248 S.E.2d 31, that the defense counsel's opening statement opened the door for comments on the accused's failure to testify. But cf. Lindler v. State, 149 Ga.App. 155, 253 S.E.2d 833, as to the scope of permissible rebuttal where...
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...State, 226 Ga. 450(4), 175 S.E.2d 545 (1970); Stowers v. State, 143 Ga.App. 859(3), 240 S.E.2d 227 (1977). See also Sweatt v. State, 149 Ga.App. 717(1), 256 S.E.2d 28 (1979). In any event, any prejudicial impact on the jury was cured by the trial court's subsequent instructions. See Parks v......
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