Holley v. State , 225 Ga. 768 ( 1969 )

Grice, Justice.

Convicted of murder, sentenced to life imprisonment, and his motion for new trial denied, Charles I. Holley appealed to this court. He was indicted by the grand jury of Fulton County for the slaying of Willie James Chisholm, and the subsequent proceedings were in the superior court of that county.

His motion for new trial, as amended, included the general and special grounds. The latter complained of denial of his motion for mistrial because of a remark made by State’s counsel during cross examination of a witness; allowing State’s counsel to cross examine a State’s witness upon claim of entrapment; and denial of his motions for mistrial because of alleged improper remarks by State’s counsel during argument to the jury.

The enumerations of error are based upon the denial of the motion for new trial.

The evidence amply supported the verdict of guilty. From the State’s evidence the following transpired: the deceased, the defendant and a number of other persons were in the same room of a residence in the City of Atlanta where a party was ensuing; the deceased was seated in a chair; without any provocation whatever the defendant and three others attacked and beat him; the defendant placed a pistol to the deceased’s neck and fired it; this wound caused his death; several hours later the defendant surrendered himself and a pistol to the police; and a ballistics test showed that this pistol fired the bullet that was extracted from the deceased’s body. While the defendant in his unsworn statement denied that he was the killer, the foregoing and other evidence authorized a finding of guilty.

There is no merit in the contention that the trial court erred in denying the defendant’s motion for mistrial urging that the State’s counsel challenged the defendant’s counsel to offer certain documentary evidence in the presence of the jury, thus compelling the jury to believe that the defendant had a duty to offer evidence to prove his innocence.

This matter arose when defense counsel was cross examining a State’s witness, seeking to show that his testimony just given was contradictory to that at the former trial, by use of the transcript of that trial. In colloquy which transpired at the instant trial defense counsel stated that “he swore it in the other trial, and I am putting it in for the purpose of a contradictory statement to impeach him. . .” After obtaining permission to examine the pertinent portion of the transcript, State’s counsel remarked, “I will challenge him to offer it in evidence.” Further colloquy transpired as to the import of this statement.

From an examination of the record, we cannot agree that this statement conveyed to the jury the impression that the defendant had the duty to introduce evidence to prove his innocence, thereby destroying the presumption of his innocence. The statement did not relate to the defendant’s guilt or innocence, but related to whether the witness then under cross examination had contradicted himself. It showed the State’s insistence that defendant’s counsel do what he said he was going to do, put the transcript in evidence so that the record would speak for itself as to whether the witness had contradicted himself.

Also, there is no merit in the enumeration asserting that it was error to allow State’s counsel to plead entrapment and to permit him to cross examine a State’s witness where there was no evidence or showing that counsel had been entrapped.

However, defense counsel’s objection upon the trial was not that there was no evidence or showing as to entrapment. Rather, it was as to the time when State’s counsel eould properly claim entrapment. The objection, in substance, was that where, as here, defense counsel first brought out the testimony in question, State’s counsel could not subsequently, upon further examination of the witness, claim entrapment.

This objection was properly overruled. The privilege of claiming entrapment is not confined to direct examination, but exists also where, as here, the testimony complained of was elicited on cross examination.

Nor was there an abuse of discretion in the denial of the defendant's three motions for mistrial which urged that the argument of the State’s counsel to the jury was improper in stated particulars.

(a) One of the motions for mistrial was directed at remarks which the appellant claims were to the effect that his counsel tried to provoke the judge into making a statement the appellate courts would consider to be erroi*. In this connection, State’s counsel said, “In the irrelevant, trivial details we have seen counsel time after time try to try his Honor,” followed by the hypothetical language “and if someone has a weak case, who hasn’t got any defense really and they can provoke the judge into making a statement that the appellate courts would consider to be error, then he can get a mistrial. . .” These remarks, even if entirely referrable to defendant’s counsel, were deductions which State’s counsel drew from what had occurred during the trial, and did not require grant of a motion for mistrial.

(b) Another motion for mistrial complained of remarks of the State’s counsel as to methods used by defense counsel in the trial being a “smoke screen” by which he attempted to divert the jury’s attention from the evidence of the defendant’s guilt. As we view it, this portion of the argument was likewise a deduction which the State’s counsel made from what had transpired during the trial and did not require grant of a motion for mistrial.

(c) The third motion for mistrial related to remarks by the State’s counsel that when at Christmastime the deceased’s children ask where their father is and their mother seeks to explain that he is dead, it will be a great comfort for them for her to say, “but he was killed by a man of alleged good character.” This portion objected to sought to discredit the defendant’s defense of good character, and did not require grant of a motion for mistrial.

As to these motions generally, see Taylor v. State, 121 Ga. 348, 354 (49 SE 303); Loomis v. State, 78 Ga. App. 153, 181 (51 SE2d 13).

Judgment affirmed.

All the Justices concur, except Felton, J., who dissents.