Stanley v. State
| Decision Date | 28 September 1982 |
| Docket Number | No. 38631,38631 |
| Citation | 250 Ga. 3,295 S.E.2d 315 |
| Parties | Alton STANLEY v. The STATE. |
| Court | Georgia Supreme Court |
Stephen N. Hollomon, Warner Robins, Harry J. Fox, for Alton stanley.
G. Theron Finlayson, Dist. Atty., Perry, James F. Garrett, Asst. Dist. Atty., for the State.
We granted certiorari to consider whether it was reversible error for the prosecutor to ask a detective, in relation to the identification of the defendant, "Now, mug books are what exactly?", eliciting the answer, "They are pictures of individuals that we have had previous cases on."
At appellant's trial for motor vehicle theft, a witness testified that he had identified appellant to the police from his picture in "some mug books." In further examination of the witnesses, both the district attorney and the defense counsel used the phrase "mug books" repeatedly. When the police officer who had shown the witness those pictures took the stand, the following direct examination occurred:
Defense counsel objected to this answer and moved for a mistrial, which motion the trial court denied. The trial court did take corrective action by addressing the jury as follows: Appellant was convicted of motor vehicle theft, and he argues on appeal that the above testimony illegally placed his character into issue against his will. While we believe that this testimony improperly placed appellant's character into issue, for reasons which appear below, we answer the certiorari question in the negative and affirm.
1. The Court of Appeals found that the disputed question and response of the police officer in this case fell short of placing the defendant's character into issue. Stanley v. State, 161 Ga.App. 661(2), 288 S.E.2d 683 (1982). We disagree.
Appellant correctly points out that the general rule is that evidence of the defendant's bad character cannot be introduced unless the defendant first chooses to do so. Code Ann. §§ 38-202 and 38-415; Bacon v. State, 209 Ga. 261, 71 S.E.2d 615 (1952). We have previously held that admission into evidence of a "mug shot" of a defendant does not place his character into issue. Creamer v. State, 229 Ga. 704, 194 S.E.2d 73; Tanner v. State, 228 Ga. 829, 188 S.E.2d 512 (1972). We have also found that a police detective's statement that he "decided to pull some pictures of [the defendant] from our files" would not place the defendant's character into evidence. Woodard v. State, 234 Ga. 901(2), 218 S.E.2d 629 (1975). The testimony here went beyond that given in our previous cases. Taken as a whole the testimony identified the defendant as having a prior record of a criminal offense or offenses. His character was placed in evidence.
2. Although this testimony improperly placed appellant's character into evidence, the trial judge did not abuse his discretion in refusing to declare a mistrial.
The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge's discretion will not be interfered with. Ladson v. State, 248 Ga. 470(12), 285 S.E.2d 508 (1981); Bowman v. Bowman, 230 Ga. 395(1), 197 S.E.2d 372 (1973); Salmon v. Salmon, 223 Ga. 129(1), 153 S.E.2d 719 (1967); Manchester v. State, 171 Ga. 121(7), 155 S.E. 11 (1930).
When prejudicial matter is placed before the jury in a criminal case, the trial judge must decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions. See Felton v. State, 93 Ga.App. 48, 90 S.E.2d 607 (1955). Here, the trial judge acted immediately, ruled out the offensive testimony, and properly...
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