Campbell v. the State ( 2014 )

SECOND DIVISION
ANDREWS, P. J.,
MCFADDEN and RAY, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
October 20, 2014
In the Court of Appeals of Georgia
A14A1464. CAMPBELL v. THE STATE.
MCFADDEN, Judge.
Juwann Campbell appeals from his convictions for armed robbery (OCGA §
16-8-41), hijacking a motor vehicle (OCGA § 16-5-44.1), and possession of a firearm
during the commission of a felony (OCGA § 16-11-106). He argues that the trial
court inadequately responded to improper comments in the state’s closing argument
and the trial court improperly restricted his cross-examination of a state’s witness. We
find no abuse of discretion and affirm.
Viewed in the light most favorable to the verdict, the evidence showed that on
November 1, 2011, several men used guns to force cousins Latrell and Fletcher Scott
out of the parked car in which they were sitting. The men then drove away in the car.
Latrell Scott recognized one of the men as someone who went by the nickname
“Little J,” whom she identified at trial as Campbell.
1. Prosecutor’s statements during closing argument.
At trial, Campbell pointed out the lack of forensic evidence tying him to the
crime. In response, the prosecutor made two statements in closing argument relating
to Campbell’s ability to call as a witness a forensic police officer who had
investigated the case. Campbell argues that the statements were improper. Although
the trial court sustained Campbell’s objections to the statements, Campbell argues
that OCGA § 17-8-75, which prohibits counsel from making “statements of
prejudicial matters which are not in evidence,” required a stronger response and that
the trial court erred in failing to either grant a mistrial or give appropriate curative
instructions. We disagree.
OCGA § 17-8-75 provides:
Where counsel in the hearing of the jury make statements of prejudicial
matters which are not in evidence, it is the duty of the court to interpose
and prevent the same. On objection made, the court shall also rebuke the
counsel and by all needful and proper instructions to the jury endeavor
to remove the improper impression from their minds; or, in his
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discretion, he may order a mistrial if the prosecuting attorney is the
offender.
In implementing this Code section, trial courts have broad discretion.
The decision of whether to grant a mistrial because of improper conduct
by counsel rests with the trial judge. [His] decision will not be
overturned absent a manifest abuse of discretion. This court has
repeatedly held that if the trial judge acts immediately, and in the
exercise of [his] discretion takes such action as in [his] judgment
prevents harm to the accused as a result of such improper statements, a
new trial will not be granted unless it is clear that such action failed to
eliminate from consideration of the jury such improper statements.
Pullin v. State, 258 Ga. App. 37, 42 (3) (572 SE2d 722) (2002) (citations and
punctuation omitted).
The first statement to which Campbell objected regarded a matter not in
evidence – that the forensic police officer “was standing out in the hallway
throughout this trial.” The trial court immediately sustained Campbell’s objection,
rebuked the prosecutor, and instructed the jury not to consider the statement. The trial
court did not abuse his discretion in this response to Campbell’s objection. See Wyley
v. State, 169 Ga. App. 106, 108 (311 SE2d 530) (1983) (“The trial court’s denial of
a motion for mistrial is not an abuse of discretion where the trial court immediately
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rebukes the counsel and instructs the jury to ignore the improper comments.”)
(citation omitted).
The second statement to which Campbell objected occurred shortly thereafter,
when the prosecutor, after referring to the forensic police officer, stated: “Understand
this. The burden of course is on the State, but both parties have subpoena power. Both
parties can bring a witness – [.]” Although the trial court sustained Campbell’s
objection that this statement was an improper burden-shifting argument, in fact the
statement was not improper. See Johnson v. State, 271 Ga. 375, 383 (15) (a) (519
SE2d 221) (1999) (prosecutor’s argument in closing directed at defense counsel’s
failure to rebut or explain state’s evidence neither impermissibly shifted the burden
of proof to the defendant nor improperly commented on defendant’s failure to testify);
Hutchinson v. State, 179 Ga. App. 485, 486 (2) (347 SE2d 315) (1986). The trial
court did not err in failing to take further action in response to this statement of the
prosecutor in closing argument.
3. Cross-examination.
Campbell argues that the trial court impermissibly restricted his cross-
examination of victim Latrell Scott. Defense counsel sought to ask Scott why she had
refused to meet with some police officers in the course of the investigation, to which
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Scott would have responded that she was on probation. The trial court ruled that
defense counsel could elicit testimony about Scott’s refusal to meet with the officers
but not about the fact of her probation. Campbell argues that this was error, asserting
that the fact that Scott was on probation implicated her credibility as a witness, when
taken in conjunction with her unwillingness to speak with the officers, and was
evidence from which the jury might infer that Scott had been engaged in a drug
transaction.
OCGA § 24-6-609 (a) limits the convictions with which a witness other than
the accused can be impeached. It pertinently states:
For the purpose of attacking the character for truthfulness of a witness:
(1) Evidence that a witness other than an accused has been convicted of
a crime shall be admitted subject to the provisions of Code Section 24-4-
403 [regarding relevancy] if the crime was punishable by death or
imprisonment in excess of one year under the law under which the
witness was convicted[.] . . . (2) Evidence that any witness has been
convicted of a crime shall be admitted regardless of the punishment, if
it readily can be determined that establishing the elements of such crime
required proof or admission of an act of dishonesty or making a false
statement.
OCGA § 24-6-609 (a). In this case, Scott was on probation for the offense of
misdemeanor shoplifting, and it does not appear from the record that Campbell made
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a showing that the shoplifting conviction involved fraud or deceit. Cf. Martin v. State,
300 Ga. App. 39, 41 (2) (684 SE2d 111) (2009) (requiring defendant to show that
witness’s misdemeanor shoplifting conviction involved fraud or deceit for it to be
used to impeach a witness under former OCGA § 24-9-84.1 (a) (3), which contained
language similar to OCGA § 24-6-609 (a) (2)). Accordingly, the trial court did not
abuse his discretion in limiting Campbell’s cross-examination to prevent mention of
Scott’s probation. See id.
Judgment affirmed. Andrews, P. J., and Ray, J., concur.
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