Shirley v. State

• Decision Date: 09 April 1980
• Docket Number: No. 36007,36007
• Citation: Shirley v. State, 266 S.E.2d 218, 245 Ga. 616 (Ga. 1980)
• Parties: SHIRLEY v. The STATE.
• Court: Georgia Supreme Court

Page 218

266 S.E.2d 218

245 Ga. 616

SHIRLEY v.The STATE.

No. 36007.

Supreme Court of Georgia.

Submitted Feb. 29, 1980.

Decided April 9, 1980.

Joe Salem, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Arthur K. Bolton, Atty. Gen., Mary Beth Westmoreland, Staff Asst. Atty. Gen., for appellee.

MARSHALL, Justice.

The appellant was convicted of the murder of Larry Hinkle.He received the sentence of life imprisonment.He appeals.We affirm.

Evidence introduced by the state showed that on the day of the murder the deceased was standing on a street corner with Allen Alexander, Weyman McKenzie, and Lester Smith.The appellant approached them in his car, and he told the deceased, "I see you are still here.You are still at it."The deceased responded, "I'm not selling any marijuana in your territory."The appellant then said, "I will kill you, Larry," and he pulled out a gun and shot in the direction of the deceased, but the gunshot did not hit him.The deceased began to run, and the appellant shot him again, this time hitting him in the back and killing him.

After the shooting, the appellant met with Alexander, McKenzie, and Smith.He gave each of them $300 to keep quiet.

At trial, the appellant denied giving any money to any witnesses to the shooting.The appellant testified that the deceased and the others had run out in front of his car, and he had shot the deceased after the deceased had pulled out a gun and attempted to get into the car.The appellant testified that he thought the deceased was attempting to rob him.

1.In three enumerations of error, the appellant argues that the trial court erred in overruling his motion for mistrial when the prosecuting attorney stated to the jury in closing argument that the appellant's testimony was fabricated.

We agree that it is improper for counsel to state to the jury his personal belief as to the veracity of a witness.Burnett v. State, 240 Ga. 681(5), 242 S.E.2d 79(1978).But seeShy v. State, 234 Ga. 816, 824, 218 S.E.2d 599(1975).However, it is not improper for counsel to urge the jury to deduce such a conclusion from proven facts.Smith v. State, 141 Ga.App. 529(2), 233 S.E.2d 841(1977), revd. on other grounds, Smith v. State, 239 Ga. 477, 238 S.E.2d 116(1977).

Here, the appellant's motion for mistrial was overruled; however, the trial judge, in the presence of the jury, did rebuke the prosecuting attorney for expressing his personal opinion that the appellant's testimony was fabricated.The prosecuting attorney then stated to the jury that he did not mean to be stating a personal opinion, but he was submitting that the jury might infer from the evidence that what the appellant had said was a fabrication.Since the prosecuting attorney clarified his argument to the jury after being rebuked by the trial judge, the trial judge did not abuse his discretion in overruling the motion for mistrial.Iler v. State, 139 Ga. App. 743(3), 229 S.E.2d 543(1976) and cits.

In making his closing argument to the jury, the prosecuting attorney noted that the appellant had testified that the deceased had attempted to rob him and that he had reported this to a "lady at the counter on the third floor of the detective office."The prosecuting attorney asked the jury where this lady was.

The appellant argues that the trial judge should have declared a mistrial, because this argument was improper.We disagree.Although the prosecutor is prohibited from commenting on the defendant's failure to testify, the prosecutor can argue to the jury the inferences to be drawn from the defendant's failure to produce witnesses, who are competent to testify and who allegedly would give evidence favorable to the defendant.Contreras v. State, 242 Ga. 369(3), 249 S.E.2d 56(1978) and cits.Cf., James v. State, 223 Ga. 677(5), 157 S.E.2d 471(1967).Therefore, this argument was not improper.

2.In another enumeration of error, the appellant argues that the trial court committed error by failing to comply with Code Ann. § 70-207(b), which requires the court to inform counsel of its proposed action upon requests to charge the jury prior to closing argument to the jury.

In this case, the trial court did not refuse to inform counsel of its proposed action on his requests to charge, as in Evans v. State, 146 Ga.App. 480(1), 246 S.E.2d 482(1978).Rather, the trial court did inform defense counsel of its proposed action on certain requests to charge.When defense counsel indicated that other requests to charge had been abandoned, the trial judge stated that he understood, and the jury was summoned back into the courtroom for...