Carter v. State
| Decision Date | 04 October 1993 |
| Docket Number | No. S93A1466,S93A1466 |
| Citation | 263 Ga. 401,435 S.E.2d 42 |
| Parties | CARTER v. The STATE. |
| Court | Georgia Supreme Court |
William J. Mason, Columbus, for Carter.
J. Gray Conger, Asst. Dist. Atty., Douglas C. Pullen, Dist. Atty., Chattahoochee Judicial Circuit, Columbus, Michael J. Bowers, Atty. Gen., Matthew P. Stone, Staff Atty., Dept. of Law, Atlanta, for the State.
Appellant was tried before a jury and found guilty of murder, but, on appeal, his conviction was reversed. Carter v. State, 261 Ga. 344, 404 S.E.2d 432 (1991). At the retrial, a jury again found appellant guilty of the murder and he was sentenced to life. He now appeals from the judgment of conviction entered on the jury's guilty verdict returned at the retrial. 1
1. Carter v. State, supra 261 Ga. at 345(2), 404 S.E.2d 432.
2. At the retrial, appellant elected to introduce no evidence in his defense. The trial court then allowed the State to reopen its case so as to introduce the testimony that had been given by appellant at the original trial. See Edison v. State, 256 Ga. 67, 69(3), 344 S.E.2d 231 (1986). Appellant urges that it was error to allow the State to reopen its case when he had presented no evidence in his defense. This contention is without merit. It is "within the discretionary power of the trial judge to reopen the case and allow the State to introduce further testimony even though such testimony was not in rebuttal of evidence offered by the defendant or his [testimony before] the jury." Britten v. State, 221 Ga. 97, 101(4), 143 S.E.2d 176 (1965).
3. Appellant objected that the State's closing argument was extending beyond the one-hour time limit that was otherwise prescribed by Uniform Superior Court Rule 13.1(B). But see OCGA § 17-8-73. In response, counsel for the State informed the trial court that he was "going to wind it up in just a minute." The trial court then permitted counsel for the State to proceed with his closing argument to its shortly ensuing conclusion. On appeal, appellant urges that, by allowing counsel for the State to continue with his closing argument, the trial court committed reversible error.
The Uniform Superior Court Rules provide that a trial court, in the exercise of its discretion, may grant counsel's pre-argument request for additional time to make closing argument. Uniform Superior Court Rule 13.2. Here, counsel for the State made no pre-argument request for additional time. Thus, the trial court would have been authorized to deny counsel for the State the opportunity to finish his closing argument. However, nothing in the Uniform Superior Court Rules specifically precludes the trial court from exercising its discretion so as to grant a short period of additional time to counsel who has failed to make a pre-argument request, when, as here, the purpose is merely to allow counsel to reach the logical conclusion of his closing argument.
4. Appellant enumerates as error the trial court's refusal to give a requested instruction on "mere presence at the scene of the crime."
In order for the trial court's failure to give a requested instruction to constitute reversible error, the refused request must be Pruitt v. State, 258 Ga. 583, 588(13), 373 S.E.2d 192 (1988). The record in the instant case does not contain a copy of any timely filed written request to instruct on "mere presence." Accordingly, the requisite preliminary determination as to the legal accuracy of appellant's refused request cannot be made. Compare Pruitt v. State, supra at 588(13)(c), 373 S.E.2d 192....
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