Hall v. State, 72797

• Decision Date: 03 November 1986
• Docket Number: No. 72797,72797
• Parties: HALL v. The STATE
• Court: Georgia Court of Appeals

Page 801

350 S.E.2d 801

180 Ga.App. 881

HALL v. The STATE

No. 72797.

Court of Appeals of Georgia.

Nov. 3, 1986.

Rehearing Denied Nov. 19, 1986.

Certiorari Denied Jan. 15, 1987.

H. Haywood Turner III, Columbus, for appellant.

William J. Smith, Dist. Atty., J. Gray Conger, Asst. Dist. Atty., for appellee.

CARLEY, Judge.

Appellant was tried before a jury on a three-count indictment. Count One alleged the commission of an aggravated assault against a named individual. Counts Two and Three alleged that appellant had falsely imprisoned and committed an aggravated assault against another named individual. The jury returned guilty verdicts as to all three counts. Appellant appeals from the judgments of conviction and sentences entered on the jury's verdicts.

1. Appellant enumerates the general grounds. There was evidence which supported appellant's good character and alibi defenses. However, construing the evidence most strongly in support of the verdict as to Count One shows the following: The victim identified appellant as the man who had attacked her with a razor or box cutter and inflicted serious injury upon her. See generally Abbott v. State, 172 Ga.App. 70, 73(1), 321 S.E.2d 808 (1984). Construing the evidence most strongly in support of the verdict as to Count Two shows the following: The victim identified appellant as the man who had attacked her, threw her against a brick wall, beat her with his fists and, as a consequence, inflicted serious injury upon her. See generally Harper v. State, 152 Ga.App. 689, 691(2), 263 S.E.2d 547 (1979). Construing the evidence most strongly in support of the verdict as to Count Three shows the following: Prior to being beaten, the victim in Count Two had both of her arms grabbed and pinned from behind and she was then picked up and carried some 20 yards while struggling to break away from her assailant. See generally Felker v. State, 252 Ga. 351, 368(4b), 314 S.E.2d 621 (1984); Gilbert v. State, 176 Ga.App 561, 562(2), 336 S.E.2d 828 (1985). After a review of the entire record, we find that any rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. One of appellant's enumerations of error is the following: "The use of an improper photographic lineup hopelessly prejudiced the identification witnesses." However, appellant cites us to no portion of the record or transcript where he invoked a ruling by the trial court on the admissibility of the identification testimony of any witness. Our own review has discovered no point, either before or during trial, at which the issue was raised below. Accordingly, this enumeration presents nothing for review. "Failure to object to the in-court identification at trial forecloses appellate review of the matter. [Cit.]" Doby v. State, 173 Ga.App. 348, 350(5), 326 S.E.2d 506 (1985). See also Reynolds v. State, 168 Ga.App. 555, 556(2), 309 S.E.2d 867 (1983); May v. State, 159 Ga.App. 565, 566(2), 284 S.E.2d 70 (1981); Respess v. State, 145 Ga.App. 570(2), 244 S.E.2d 251 (1978).

3. During the course of the State's closing argument, appellant's counsel made several objections to the argument as being improper and impermissible. The trial court overruled the objections and these rulings are enumerated as error.

The State does not contend that the instances of alleged improper argument are not properly before this court. However, we will take this opportunity to clarify when error is preserved as to the State's closing argument in a criminal case. Some cases contain language which could be construed as holding that defense counsel is required to do more than merely raise an objection that the State's argument is improper. " 'A mere objection to alleged improper argument of counsel, without more, is not sufficient to invoke a ruling of the court; and in the absence of a specific motion either for a mistrial, or that the jury be instructed to disregard the argument, it was not error to fail to grant a mistrial or to instruct the jury.' [Cit.]" Campbell v. State, 111 Ga.App. 219, 220(5), 141 S.E.2d 186 (1965). See also Holt v. State, 147 Ga.App. 186, 187(5), 248 S.E.2d 223 (1978); Carroll v. State, 147 Ga.App. 332, 335(7), 248 S.E.2d 702 (1978). However, construing the language of those cases as standing for such a holding would be erroneous. "A good statement upon the practice question now under consideration is ... as follows: 'When improper argument is made by counsel, counsel for the opposite party, in order to make the action of the judge in reference to the same the basis for a review, may object to the argument, and rest simply on the objection; and if the court fails to take any notice of the objection and allows the argument to proceed, this conduct may be reviewed; or he may, in addition to his objection, move for appropriate instructions to the jury, or for a reprimand or rebuke of counsel, in order that the jury may be impressed with the grave nature of the impropriety which has taken place; or, if the impropriety is of a very grave character, he may move for a mistrial, and upon the refusal of the court to do that which ought to have been done on the motion made, whatever its nature may be, the conduct of the judge will then be a subject for review by this court.' " (Emphasis supplied.) Brooks v. State, 183 Ga. 466, 470-471, 188 S.E. 711 (1936).

Thus, defense counsel in a criminal case may merely object to the State's argument as improper for whatever reasons and rest on that objection rather than specifically request other forms of relief. Compare Seaboard Coast Line R. Co. v. Wallace, 227 Ga. 363, 180 S.E.2d 743 (1971) (establishing a different rule in civil cases by virtue of OCGA § 9-11-46); P.H.L. Dev. Corp. v. Sammy Garrison Constr., 171 Ga.App. 393, 396(4), 319 S.E.2d 543 (1984) (applying the rule in civil cases). If the objection to the State's argument is overruled, defense counsel may then assert on appeal that the State's argument was improper for the reasons advanced at trial and that the trial court erred in failing "promptly to require the [State's counsel] to desist from such argument, this being in effect what counsel for the defendant had asked." Brooks v. State, 55 Ga.App. 227, 232, 189 S.E. 852 (1937). If a mere objection is overruled and defense counsel makes no further request for any curative action, the only authorized argument on appeal would be that the failure to sustain the objection was erroneous. "In no case will the trial judge's ruling be reversed for not going further than requested." (Emphasis supplied.) Brooks v. State, 183 Ga.App. supra at 469, 189 S.E. 852. If, however, the objection to the State's argument is sustained, the objection will not authorize defense counsel to assert on appeal that the trial court erred in failing to take any additional, unrequested curative actions. "[I]t is well-settled that a sustained objection to improper argument of counsel cannot serve as the basis for reversal unless it is contemporaneous with a denied motion for mistrial, denied request to strike or denied request for curative instructions ... [Cits.]" Keen v. State, 164 Ga.App. 81, 88, 296 S.E.2d 91 (1982). Accordingly, the proper construction of the holding in those cases enumerated above is the following: Whether overruled or sustained, a mere objection to alleged improper argument by the State in a criminal case raises on appeal only the issue of whether the trial court erred in failing to sustain the objection so as to require the State's counsel to desist from the argument, not whether the trial court erred in failing to take any other additional curative actions.

Turning then to the instant case, there are three instances in which appellant's counsel objected to the State's closing argument as being improper and the trial court then allowed the argument to continue over the objection. As discussed above, appellant is entitled to urge on appeal that, in each of those instances, the trial court erred in failing to sustain the objection and thereby require the State's counsel to desist from improper argument.

The...