Stephens v. State, 61047
| Decision Date | 19 December 1980 |
| Docket Number | No. 61047,61047 |
| Citation | 275 S.E.2d 758,156 Ga.App. 859 |
| Parties | STEPHENS v. The STATE. |
| Court | Georgia Court of Appeals |
George C. Rosenzweig, Newnan, for appellant.
William F. Lee, Jr., Dist. Atty., for appellee.
The defendant appeals his conviction for selling phencyclidine in violation of the Controlled Substances Act.
An undercover G.B.I. agent testified that she went to the defendant's home to purchase phencyclidine from him after talking to two of his friends and learning that she could obtain the drug there. Prior to trial, defense counsel filed a motion in limine, asking that the state not be allowed to argue the hearsay portion of this testimony "for any purpose other than the explanation of (the agent's) conduct." The district attorney responded, "If we do enter that, we enter that for that purpose and the court will instruct the jury to consider the evidence for that purpose only."
The defendant introduced alibi testimony to the effect that he had been at work on the night the sale was made. He also attempted to prove that a brother-in-law was staying at his home at the time who resembled him and often wore his clothes.
During closing argument, defense counsel moved for a mistrial on the ground that the district attorney had violated his agreement not to argue the hearsay portion of the G.B.I. agent's testimony as evidence that the defendant was a known supplier of phencyclidine. Although the motion was recorded and transcribed, the closing argument itself was not, and no stipulation was obtained from the court or from the district attorney as to the exact nature of the offending remarks. Defense counsel paraphrased the district attorney as having argued, in effect, that the defendant's friends, in talking to the G.B.I. agent, "would have been a part of the (masquerading brother-in-law's) deception and they could have said it was (the defendant) when really it wasn't ..." The district attorney did not respond to the motion, and the trial court denied it without rebuking him or giving any cautionary instructions to the jury. Held :
1. Generally, where there is no transcript of the closing argument and no stipulation as to the comments which are alleged to be improper, no error can be established on appeal. See e. g., Montgomery v. State, 140 Ga.App. 286(2), 231 S.E.2d 108 (1976); Alexander v. State, 150 Ga.App. 41(3), 256 S.E.2d 649 (1979). This rule was relaxed in a recent case wherein defense counsel quoted the offending portion of the argument verbatim in his motion for mistrial; and both the prosecutor and the trial court, in responding to the motion, tacitly acknowledged that his version was accurate. See Marlow v. State, 152 Ga.App. 218(1), 262 S.E.2d 460 (1979). However, in the case before us now, the offending remarks were not quoted, but were merely paraphrased. Furthermore, neither the district attorney nor the trial court took any action or made any statement which could reasonably be construed as a stipulation that defense counsel's interpretation of the remarks was correct. We accordingly hold that the defendant has not met his burden of establishing the alleged error by the record. See generally Bridges v. State, 227 Ga. 24(2), 178 S.E.2d 861 (1972); Smith v. State, 130 Ga.App. 434(2), 203 S.E.2d 626 (1973).
2. The defendant attempted to prove by his father's testimony that one of the friends who had directed the G.B.I. agent to his house,...
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