Sheriff v. State, S03G0492.

• Decision Date: 06 October 2003
• Docket Number: No. S03G0492.,S03G0492.
• Parties: SHERIFF v. The STATE.
• Court: Georgia Supreme Court

587 S.E.2d 27

277 Ga. 182

SHERIFF v. The STATE.

No. S03G0492.

Supreme Court of Georgia.

October 6, 2003.

Buford & Buford, Floyd M. Buford, Jr., Macon, for appellant.

Kelly R. Burke, Dist. Atty., Amy E. Smith, Asst. Dist. Atty., for appellee.

BENHAM, Justice.

OCGA § 17-8-70 provides that "[n]ot more than two counsel shall be permitted to argue any case for each side, except by express leave of the court. In no case shall more than one counsel for each side be heard in conclusion." We granted a writ of certiorari to the Court of Appeals to examine that court's construction of the second sentence of § 17-8-70 in Sheriff v. State, 258 Ga.App. 423, 574 S.E.2d 449 (2002).

Appellant John Sheriff was tried on a criminal indictment in the Superior Court of Houston County. Because appellant introduced evidence other than his testimony at trial, the State was entitled to make the opening and concluding closing arguments, with Sheriff's closing argument taking place between the State's two arguments. OCGA § 17-8-71. Sheriff's two attorneys asked that both of them be permitted to give a portion of Sheriff's closing argument, and the State objected. The trial court sustained the objection, construing the second sentence of OCGA § 17-8-70 to mean that each side is entitled to have only one attorney make the closing argument for that side. On appeal, the Court of Appeals agreed that appellant was entitled to have only one attorney make his closing argument. Citing a number of cases involving OCGA § 9-10-182, the civil counterpart of § 17-8-70, the Court of Appeals concluded that "the prohibition against more than one counsel for each side being heard in conclusion necessarily applies to both the State and the defense...." Sheriff v. State, supra, 258 Ga.App. at 424, 574 S.E.2d 449. In so doing, the Court of Appeals overruled Limbrick v. State, 152 Ga. App. 615, 263 S.E.2d 502 (1979), where the Court of Appeals had held that the statutory limitation of one attorney making the closing argument applied only "to the party exercising the privilege of the final jury argument chronologically, the `last say.'" This Court granted Sheriff's petition for a writ of certiorari to examine the Court of Appeals' interpretation of OCGA § 17-8-70 and the overruling of the holding in Limbrick.

1. We note initially that OCGA § 17-8-70 is not an accurate codification of the law. OCGA § 17-8-70 and its civil counterpart, § 9-10-182, share a common genesis in Ga. L. 1924, p. 75, § 1, which stated: "Be it enacted by the General Assembly of Georgia that no more than two counsel shall be permitted to argue any cause for each side, except by express leave of the court; and in no case shall more than one counsel be heard in conclusion." Separate civil and criminal code sections on the topic were incorporated in the 1933 Code, with Code Ann. § 27-2202 governing criminal cases and Code Ann. § 81-1004 covering civil cases. Each code section stated: "Not more than two counsel shall be permitted to argue any cause for each side, except by express leave of the court; and in no case shall more than one counsel be heard in conclusion."¹ When the Code was recodified in 1982, § 81-1004 became OCGA § 9-10-182, and stated: "Not more than two counsel for each side shall be permitted to argue any case, except by express leave of the court; and in no case shall more than one counsel be heard in conclusion." In the recodification, Code Ann. § 27-2202 became OCGA § 17-8-70, and stated: "Not more than two counsel shall be permitted to argue any case for each side, except by express leave of the court. In no case shall more than one counsel for each side be heard in conclusion."

It is readily apparent that OCGA § 17-8-70 was substantively modified in the 1982 recodification. The phrase "for each side" that previously limited only the number of counsel permitted to argue any case without express leave of court, was repeated so as to also limit the number of counsel to be heard "in conclusion." The recodification's substantive modification is not entitled to any weight since the General Assembly expressly provided in its enactment of the recodified Code that it did not intend the enactment of the 1982 Code to alter the substantive law in effect on the effective date of the 1982 recodification. Included in the recodification is OCGA § 1-1-2 which states, among other things, that "[e]xcept as otherwise specifically provided by particular provisions of this Code, the enactment of this Code by the General Assembly is not intended to alter the substantive law in existence of the effective date of this Code."² Accordingly, we apply the substantive law in effect at the time of the enactment of the 1982 Code. Charter Med. Info. Svcs. v. Collins, 266 Ga. 720, 722, 470 S.E.2d 655 (1996); Brophy v. McCranie, 264 Ga. 187(1), 442 S.E.2d 230 (1994); Newsome v. Dept. of Human Resources, 199 Ga. App. 419(1), 405 S.E.2d 61 (1991). Thus, the statute should read as it did before recodification: "Not more than two counsel shall be permitted to argue any cause for each side, except by express leave of the court; and in no case shall more than one counsel be heard in conclusion." Code 1933, § 27-2202. 2. The issue before us is the meaning of "in conclusion," the final phrase of OCGA § 17-8-70. In Georgia, the arguments at the close of evidence "generally include an `opening' and a `conclusion' and an argument in between." Goforth v. Wigley, 178 Ga.App. 558, 561(3), 343 S.E.2d 788 (1986). See also OCGA § 17-8-71. The party with the burden of proof is entitled to the opening and concluding arguments, with the other side presenting the argument in between (see Buchanan v. McDonald, 40 Ga. 286, 288 (1869)); if, however, a criminal defendant introduces no evidence other than his own testimony, or a civil defendant introduces no evidence, he is entitled to the opening and concluding arguments, with the State or plaintiff presenting the argument in between. OCGA § 17-8-71; Scott v. State, 243 Ga. 233(2), 253 S.E.2d 698 (1979); Hogsed v. Hogsed, 230 Ga. 232, 233, 196 S.E.2d 428 (1973). In Limbrick v. State, supra, 152 Ga.App. 615, 263 S.E.2d 502, the Court of Appeals held that the limitation to one counsel was applicable only to the concluding argument, stating that the last clause of § 17-8-70 "forbids more than one counsel to present the last argument to be heard by the jury. That is, the final clause ... applies to the party exercising the privilege of the final jury argument chronologically, the `last say.'" Earlier opinions issued by the Georgia appellate courts in civil cases presaged that conclusion. In Peacock v. Stinson, 72 Ga.App. 48, 49(3), 32 S.E.2d 921 (1945), the court noted that the party with the middle argument could not waive his argument after the opposing party had made the opening argument and thereby deprive a second attorney for the opposing party from giving the concluding argument by contending that more than one counsel would be heard in conclusion. The Court of Appeals noted, "Only one is being heard in conclusion, and so far as [the opposing party] is concerned, the situation is the same as if the [party with the middle argument] had availed themselves of their right to argue." In Duke v. Steed, 127 Ga.App. 541, 194 S.E.2d 257 (1972), the Court of Appeals affirmed the order of closing argument set out by the trial court in a case where the plaintiff was represented by two attorneys and there were two co-defendants, one of whom was the appellant and the other of whom was represented by two attorneys. The court noted that the order of closing argument (plaintiff's counsel No. 1; co-defendant's counsel No. 1; the appellant's counsel; co-defendant's counsel No. 2; and plaintiff's counsel No. 2) complied with all the statutory limitations on the trial court's discretion since "[p]laintiff received both opening and concluding arguments; no more than two counsel per side were permitted to argue; and only one was heard in conclusion." In Morris v. West, 183 Ga. 214(3), 187 S.E. 861 (1936), this Court acknowledged "only one argument in conclusion is permitted under the statute" where plaintiff had the opening and closing argument and, after one of plaintiff's attorneys argued in conclusion, the other attorney for plaintiff spoke in closing, over the defendant's objection. This Court declined to reverse the judgment since the arguments were made in a bench trial rather than a jury trial and there was no evidence of the contents of the second argument.

Following Limbrick, the Court of Appeals repeatedly noted that the statute was not violated when two attorneys argued on behalf of the party with the middle argument. In Taylor v. Powell, 158 Ga.App. 339, 280 S.E.2d 386 (1981), the Court of Appeals observed that "[t]he evidence shows that counsel for the plaintiffs made the concluding argument. No violation of [the statute] thus appears." See also Steverson v. Eason, 194 Ga.App. 273(2), 390 S.E.2d 424 (1990); Williams v. Greenfield Equipment Co., 184 Ga.App. 239, 361 S.E.2d 199 (1987). In Goforth v. Wigley, supra, 178 Ga.App. at 561-2, 343 S.E.2d 788, the Court of Appeals stated that "the statutory proscription that `in no case shall more than one counsel be heard in conclusion' (OCGA § 9-10-182) refers to the concluding portion of plaintiff's right to open and conclude final arguments (or to whomever bears the burden of proof and thus gets opening and concluding)." Using case law construing the statutory limitations on closing argument to interpret the uniform superior court rule on the subject, the court observed in Wakily v. State, 225 Ga.App. 56, 59(6), 483 S.E.2d 313 (1997), that "the term `concluding' has been held to refer to the concluding portion of final argument...." In McDuffie v. Jones, 248 Ga. 544(2), 283 S.E.2d 601 (1981), overruled on other grounds in West v. Waters, 272 Ga. 591, 533 S.E.2d 88 (2000), faced with a case in which ...