Graham v. State
| Decision Date | 18 February 1981 |
| Docket Number | No. 58828,58828 |
| Citation | 156 Ga.App. 538,275 S.E.2d 114 |
| Parties | GRAHAM v. The STATE. |
| Court | Georgia Court of Appeals |
Thomas H. Vann, Jr., Thomasville, for appellant.
H. Lamar Cole, Dist. Atty., for appellee.
The Supreme Court, on certiorari, State v. Graham, 246 Ga. 341, 271 S.E.2d 627, having reversed our judgment in this case, the opinion, 153 Ga.App. 658, 266 S.E.2d 316, is vacated and the case is now reconsidered in conformity with the opinion of the Supreme Court. Held :
1. The first enumeration of error was that the court erred in failing to grant a mistrial predicated on prejudicial remarks elicited by the Assistant District Attorney during voir dire, which remarks unlawfully placed the defendant's character in issue. The voir dire was not transcribed and, after two hearings, the trial judge was unable to recall what transpired. This effectively obviated the defendant's grounds by preventing him from showing error. In our former opinion we held that such deprivation was contrary to law and violated the statutory mandate.
The Supreme Court's decision relied on State v. Hart, 246 Ga. 212, 271 S.E.2d 133, which, without overruling prior decisions in Aiken v. State, 226 Ga. 840, 842, 178 S.E.2d 202, Wade v. State, 231 Ga. 131, 200 S.E.2d 271, and Brown v. State, 242 Ga. 602, 250 S.E.2d 491, held that under the statute (Code Ann. § 27-2401 ()): "the state has the duty to see that the transcript is prepared and filed, though there is no time limit on this duty." State v. Graham 246 Ga. 341, 342, 271 S.E.2d 627 supra.
The court then determined (at p. 343, 271 S.E.2d 627) "the intent of the term 'proceedings' is to refer to objections, rulings and other matters which occur during the course of the evidence as well as any post-trial procedures." No express ruling was made concerning precisely in what category the voir dire should be considered.
Nevertheless, apparently predicated on the rationale that the voir dire was not within the parameters of "proceedings" in a criminal case, our decision in the case sub judice was found to be in error insofar as we held (at p. 343, 271 S.E.2d 627) "that the entire voir dire in a felony case must be reported and transcribed."
The decision then pointed out (at page 343, 271 S.E.2d 627)
It is therefore apparent from the Supreme Court decision that, although the State may have some nebulous duty with regard to transcribing part of the voir dire (i. e., the objection and ruling thereon), the defendant is not entitled to rely on any further transcription, but has the very onerous task and duty of preserving his rights by affirmative action, on the failure of which he loses them.
Since on the record before us, based on the trial judge's certificate, we are unable to ascertain what transpired in the court below, we are constrained to apply the rule that the appellant has the burden of showing error affirmatively by the record and since none appears there is no basis for reversal. Roach v. State, 221 Ga. 783(4), 147 S.E.2d 299.
2. Error is asserted on the failure of the court to grant defendant's motion for mistrial based on prejudicial and unlawful comments made by counsel for a codefendant. Counsel for the codefendant sought to call the defendant as a witness and when objection was sustained stated: "I don't believe there's anything that would come from my questions that would do anything other than exculpate Mr. Amos Goodman (the codefendant)." It is contended this was an impermissible comment on defendant's right to remain silent.
We pretermit determination of the issue whether when...
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...v. State, 263 Ga. 393(1), 435 S.E.2d 202 (1993), citing Mallory v. State, 261 Ga. 625, 629(5), 409 S.E.2d 839 (1991); Graham v. State, 156 Ga.App. 538, 539(2), 275 S.E.2d 114 3. Between the time that Callendar was cross-examined and his counsel moved to sever, four witnesses took the stand ......
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Maddox v. State, 69935
...burden of showing error affirmatively by the record and since none appears there is no basis for reversal. [Cit.]" Graham v. State, 156 Ga.App. 538, 539, 275 S.E.2d 114 (1980). Judgments BIRDSONG, P.J., and SOGNIER, J., concur. ...
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Hutchinson v. State
...(1984). It is reference to the failure of the defendant himself to testify which is prohibited. OCGA § 24-9-20(b); Graham v. State, 156 Ga.App. 538(2), 275 S.E.2d 114 (1980). The remarks appellant finds offensive noted that appellant had the right to present evidence and subpoena witnesses.......
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