Greer v. State, 77028

• Decision Date: 15 September 1988
• Docket Number: No. 77028,77028
• Citation: 188 Ga.App. 808,374 S.E.2d 337
• Parties: GREER v. The STATE.
• Court: Georgia Court of Appeals

Page 337

374 S.E.2d 337

188 Ga.App. 808

GREER v. The STATE.

No. 77028.

Court of Appeals of Georgia.

Sept. 15, 1988.

Rehearing Denied Oct. 17, 1988.

Christopher C. Edwards, for appellant.

William G. Hamrick, Jr., Dist. Atty., Agnes McCabe, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant appeals his conviction of the offense of burglary. Held:

1. Defendant's first two enumerations of error raise an issue of whether the trial court erred in permitting the jury to learn that defendant's co-indictee plead guilty to the same offense of burglary upon which defendant was tried. The enumerations challenge the admission of evidence as to the co-indictee's plea, comments thereon, and the trial court's refusal to "redact" the indictment before the indictment was sent out to the jury.

We have acknowledged a "rule of inadmissibility with regard to a non-testifying co-indictee's guilty plea. The cases which apply this rule of inadmissibility rely upon the language of OCGA § 24-3-52 and, based upon the consequent irrelevancy or incompetency of that guilty plea as proof of the guilt of the defendant on trial, hold that it cannot be used as substantive evidence 'against' him. [Cits.]" Foster v. State, 178 Ga.App. 478, 479, 343 S.E.2d 745. OCGA § 24-3-52 is inapplicable to the case sub judice since the co-indictee took the stand and was subject to cross-examination by defendant's attorney. Lattimore v. State, 175 Ga.App. 756, 757(5), 334 S.E.2d 701; Jones v. State, 169 Ga.App. 4, 6(6), 311 S.E.2d 485. Also, since the jury was instructed that the co-indictee's guilty plea was not to be used as evidence of defendant's guilt there was no error. See Foster v. State, 178 Ga.App. 478, 480, 481, 343 S.E.2d 745, supra. Furthermore, the trial court's leading questions to the co-indictee did not amount to a prohibited comment on the evidence since the questions propounded by the trial court did not constitute expressions or intimations of opinion as to what has or has not been proved or as to the guilt of the accused. Cannon v. State, 179 Ga.App. 142, 143(2), 345 S.E.2d 623.

2. Defendant also enumerates as error the denial of his motion for mistrial based on the assistant district attorney's statement during closing argument that the State does not undertake the prosecution of cases frivolously. Defendant argues that this statement was a thinly shrouded expression of personal opinion as to defendant's guilt.

It is well settled that a district...