Johnson v. State, 31575

• Decision Date: 01 December 1976
• Docket Number: No. 31575,31575
• Citation: 238 Ga. 59,230 S.E.2d 869
• Parties: Stanley JOHNSON v. The STATE.
• Court: Georgia Supreme Court

Page 869

230 S.E.2d 869

238 Ga. 59

Stanley JOHNSON v. The STATE.

No. 31575.

Supreme Court of Georgia.

Dec. 1, 1976.

Swift, Currie, McGhee & Hiers, Joseph J. Burton, Jr., Steven A. Brickman, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., R. David Petersen, Asst. Dist. Atty., H. Allen Moye, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Daryl A. Robinson, Atlanta, for appellee.

HALL, Justice.

Johnson was convicted by a jury on two counts of armed robbery and sentenced to thirteen years on each count. He appeals. A previous trial on these charges resulted in a mistrial because of the failure of that jury to reach a verdict.

All the enumerations of error relate to alleged improper statements of the prosecuting attorney. Reversible error in one of these statements decides this appeal.

In his closing argument the prosecutor referred to bank tellers who were on duty in the bank at the time of the armed robbery, saying, 'There were two girls, one of whom was so shaken on the stand, that was Alberta Tucker, she was nervous, she was a nervous wreck, and she was nervous out in the hall. And defense counsel asked where is Dianne Simmons, why didn't we call her, well I might tell you that if the defense attorney called her she would contradict the testimony of the other tellers. Why didn't they call her? They had the same subpoena powers that we did, they could have subpoenaed her, she was out in the hall but they didn't call her in. I'll tell you why the State didn't call her, she was too terrified to come in and testify against the defendant. I state in my place that she told me that she had fears for her life, that her life would be taken if she came into Court and identified the defendant.'

Defense counsel objected and asked that anything Mrs. Simmons said to the prosecutor be stricken. The trial judge said 'I believe that goes outside the evidence . . . That goes a little far afield.' However, he gave no instructions to the jury. The next day defense counsel moved for a mistrial, but the motion was overruled. The state contends here that the motion for mistrial was not timely; however, we do not reach that question because of the trial court's error in failing to strike the prejudicial statement, instruct the jury to disregard it and rebuke the prosecutor.

'Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same; and, on objection made, he shall also rebuke the counsel, and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the plaintiff's attorney is the offender.' Code Ann. § 81-1009.

In our opinion, the remarks of the prosecutor concerning what Mrs. Simmons told him were highly improper and prejudicial and the trial court erred in not striking this from the record and instructing the jury to disregard it. Mitchum v. State, 11 Ga. 615 (1852).

The state contends that even if the trial court were in error, the error was harmless under the facts of this case. In discussing harmless error, a distinction is made between the test for determining harmless constitutional error and harmless nonconstitutional error. The former is set forth in the decisions of the Supreme Court of the United States. See Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). The latter is a question for each state.

The doctrine of harmless error in...