Hall v. State
| Decision Date | 23 June 1976 |
| Docket Number | No. 52310,No. 2,52310,2 |
| Parties | J. F. HALL, III v. The STATE |
| Court | Georgia Court of Appeals |
Gary A. Sinrich, Hinesville, for appellant.
John W. Underwood, Dist. Atty., Hinesville, Arthur K. Bolton, Atty. Gen., G. Thomas Davis, Senior Asst. Atty. Gen., Atlanta, for appellee.
Appellant Hall was indicted, tried and convicted of burglary in July, 1973. He was sentenced to serve five years imprisonment. The Supreme Court of this state granted Hall the right to pursue an out-of-time appeal. Hall v. Hopper, 234 Ga. 625, 632, 216 S.E.2d 839. Pursuant to that right, appellant has enumerated seven alleged errors. Held:
1. The first enumeration of error asserts that one of the grand jurors who returned the indictment against appellant was an elected public official, i.e., a city councilman, and was thereby incompetent to serve as a grand juror. It is contended this rendered the indictment void. Ga.L.1973, p. 726 (Code Ann. § 59-201). No objection was made prior to the return of the indictment nor has any showing been made that defendant had no knowledge of the alleged defect. The challenge, not being timely filed, was waived. Sanders v. State, 235 Ga. 425, 426, 219 S.E.2d 768. Moreover the 1973 amendment to Code § 59-201 excluding elected public officials did not have an effective date; therefore it became effective July 1, 1973. The indictment was returned on May 21, 1973. It follows that the July amendment had no legal effect upon the May indictment.
2. The second enumeration asserts that error was incurred and compounded when the trial court and the state's attorney referred to Hall as using an alias. The record does not support the contention that the jury was informed that Hall deliberately used an alias. The indictment recognized a discrepancy between the use of 'Jr.' and 'III.' The trial court read the indictment which indicated the discrepancy and the state's attorney simply identified Hall by both cognomens, obviously to insure proper identity. If there was error it was not noted by objection at trial. Where appellant asserts error but no objection was made at trial, it cannot be raised for the first time on appellate review as a ground of enumerated error on direct appeal. Hart v. State, 227 Ga. 171, 179 S.E.2d 346; Pulliam v. State, 236 Ga. 460, 224 S.E.2d 8; Porterfield v. State, 137 Ga.App. 449(2), 224 S.E.2d 94.
3. Hall complains he was prejudiced by standing trial in prison garb. The facts reflect that the attire was explained to the jurors by the defense, the jurors were subjected to voir dire on the impact of that attire, and thereafter no objection was made to the clothing worn. Although a defendant has the right to wear civilian clothes rather than prison garb at his trial, this procedural right was lost where no motion for continuance to obtain civilian clothing was made, and no objection to the procedure was made. Sharpe v. State, 119 Ga.App. 222(1), 166 S.E.2d 645.
4. In enumerations of error 4 and 5, appellant complains that the state's attorney prejudiced appellant's right to a fair trial by making improper comments in the opening statement and later in closing argument.
( a) The comment complained of in the opening statement occurred when the state's attorney mentioned to the jury the bifurcated trial procedure (extant in 1973) wherein the jury was told it first had to determine the question of guilt or innocence and later would receive further instructions from the court. Appellant complains that this amounted to an expression by the state's attorney of a foregone conclusion of guilt. Counsel for the state did not state that guilt must be found but alternative findings of either guilt or innocence were required. Upon objection to the argument, the trial court admonished the state's attorney to restrict his argument to evidence rather than procedure. We find no prejudice in the remarks and even assuming error, it was cured by the corrective comments of the trial court. See Smith v. State, 235 Ga. 852(1), 221 S.E.2d 601; Newton v. Cohen-Walker-Bailie, Inc., 111 Ga.App. 753, 755, 143 S.E.2d 14; Trammell v. Atlanta Coach Co., 51 Ga.App. 705(5), 711, 181 S.E. 315.
(b) The second remark occurred in the closing argument wherein the state's attorney drew the deduction that drugs which...
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Grayer v. State, 72953
...to an accused's guilt during argument. However, where that occurs, prompt corrective instructions are sufficient. Hall v. State, 139 Ga.App. 142, 143(4), 227 S.E.2d 917 (1976); Wells v. State, 194 Ga. 70, 75(5), 20 S.E.2d 580 (1942). The trial court did not abuse its discretion in declining......
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...or deductions so as to be objectionable. Brinson v. State, 170 Ga.App. 297, 298(2), 316 S.E.2d 857 (1984); Hall v. State, 139 Ga.App. 142, 143(4b), 227 S.E.2d 917 (1976). Moreover, within reasonable bounds, the state may discuss its own failure to produce evidence. Pope v. State, 167 Ga.App......