Kelley v. State
| Decision Date | 09 September 1981 |
| Docket Number | Nos. 37589,37590,s. 37589 |
| Citation | 281 S.E.2d 589,248 Ga. 133 |
| Parties | Gregory Cornell KELLEY v. The STATE. Charles Norris GRIFFIN v. The STATE. |
| Court | Georgia Supreme Court |
Mack Reynolds, Hogansville, for Gregory Cornell Kelley.
Alfred F. Zachry, Zachry & Kirby, LaGrange, for Charles Norres Griffin.
Marc E. Acree, Asst. Dist. Atty., Arthur E. Mallory, III, Dist. Atty., LaGrange, Arthur K. Bolton, Atty. Gen., Michael R. Johnson Asst. Atty. Gen., for the State in both cases.
Co-defendants Griffin and Kelley were convicted of the murder of Mary Worthy and sentenced to life imprisonment. Both Griffin and Kelley assign as error the trial court's failure to grant a mistrial requested following remarks by the district attorney during closing argument. In addition, Kelley contends that there was insufficient evidence to sustain a verdict of guilty in his case because of identification evidence at trial. Kelley further enumerates as error the trial court's denial of his motion to sever his trial from that of his co-defendant. We affirm.
1. In closing argument, the district attorney said: "If you ladies and gentlemen of the jury are as outraged as I am about this case, if you are as horrified as I am about the fact that an armed robbery and murder can occur in broad daylight on the Square in LaGrange, and if you are as convinced as I am that these two defendants are the two that robbed Worthy Insurance Agency and killed Mrs. Worthy, then for Mrs. Worthy, then based on the evidence, ..." At this point there was an objection on the ground that the district attorney had injected his own personal opinion into the argument. The court responded by saying: Counsel for both defendants then moved for a mistrial, which was denied. Both defendants appeal from the denial of the motions for mistrial.
It is improper for the prosecutor to state his personal opinion that a defendant charged with a crime is guilty. However, where the trial court promptly acts to prevent harm, a new trial will not be granted. Howard v. State, 229 Ga. 839, 195 S.E.2d 14, cert. denied, 411 U.S. 950, 93 S.Ct. 1939, 36 L.Ed.2d 413 (1972); Johnson v. State, 150 Ga. 67, 102 S.E. 439 (1920). Here the court stated the correct rule that the prosecutor may state what the evidence shows and indicated that the prosecutor should stand rebuked if his statement went beyond the statement of what the evidence showed. We have concluded that since the trial court acted promptly to prevent any prejudice to either defendant because of the remarks of the district attorney, there was no requirement that defendants be given a new trial.
2. Defendant Kelley insists that the evidence against him was insufficient to sustain a verdict of guilty inasmuch as the only positive identification came from the victim's husband who suffered from impaired vision. Kelley contends that under Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), this identification evidence was tainted. However, Neil v. Biggers and other cases relied upon by Kelley deal with suggestive confrontation procedures used by police to obtain identification. The issue here is simply one of credibility of a witness who was subjected to a thorough cross-examination. The issue of credibility must be resolved by the trier of fact. Lyons v. State, 247 Ga. 465, 277 S.E.2d 244 (1981); Riden v. State, 151 Ga.App. 654, 261 S.E.2d 409 (1979). Therefore, Kelley's reliance upon Neil v. Biggers, supra, and its progeny is misplaced.
The broader question raised in this enumeration of error is whether there was sufficient evidence to sustain a verdict under the test set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979): "(W)hether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." We hold that the evidence here was sufficient to meet the standard.
Mr. Worthy, who was an eyewitness to the murder of his wife, positively identified both defendants. Cross examination revealed that Mr. Worthy's eyesight was impaired. There was further identification of Griffin by a United Parcel Service deliveryman who was outside the Worthy Insurance Agency during the entire episode. This witness saw two black males go into the office, heard a shot, and saw the two emerge. One of them, whom he positively identified as Griffin, was sticking something which appeared to be a gun...
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