Banks v. State ( 1989 )

Deen, Presiding Judge.

Appellants were indicted for armed robbery, kidnapping, and aggravated assault in three counts. They were found guilty of kidnapping and two counts of aggravated assault and sentenced to a total of five years’ incarceration plus probation, and were assessed fines totaling $1,500 each. They were also required to enroll in a drug and alcohol program and to seek mental health treatment. On appeal they enumerate as error the trial court’s refusal to grant a mistrial in response to the prosecution’s allegedly improper remarks, and also two allegedly erroneous jury instructions. Held:

1. The trial transcript reveals that defense attorneys made no objection during the prosecutor’s closing argument, during which the allegedly improper “birds of a feather” remark was made, nor did he subsequently request curative instructions. Such conduct would ordinarily amount to a waiver. Tolbert v. State, 180 Ga. App. 703, 704 (350 SE2d 51) (1986). Moreover, it is well settled that in closing argument the prosecutor has considerable latitude as to what inferences may be drawn from the evidence and as to the language he may use in expressing his thoughts, however vivid or overblown it may sometimes be. Callahan v. State, 179 Ga. App. 556 (347 SE2d 269) (1986). Although in the instant case the challenged remarks come perilously close to being improper (see Hall v. State, 180 Ga. App. 881, 884 (350 SE2d 801) (1986); Aldridge v. State, 125 Ga. App. 691 (188 SE2d 835) (1972)), we find no error here.

2. Scrutiny of the record indicates that the trial court took pains to instruct the jury regarding the necessity of considering the evidence of each separate count against each defendant separately and of “arriv[ing] at... a verdict as to each of the defendants on all five of the counts.” Moreover, the verdict itself indicates that the jurors gave separate consideration to each count lodged against each defendant; i.e., one defendant received a directed verdict of acquittal on one count, and the jury acquitted the other on one count. We find no merit in this enumeration.

3. A careful reading of the jury charge in its entirety reveals that, as the State concedes, the trial court did indeed make the alleged slip of the tongue when, late in the charge, he alluded again to the “reasonable doubt” on which, together with correct instructions on presumption of innocence and burden of proof, he had previously given the jury full and accurate instructions. Although it is always unfortunate, and a cause for concern, when such a lapsus linguae occurs, it is difficult to believe, in the context of the charge as a whole and in the face of the ample evidence presented, that this verbal slip — so slight that neither the defense nor the prosecution caught it at the time — contributed to the convictions. See Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976). We find this enumeration devoid of merit.

Judgments affirmed.

Birdsong, J., concurs. Benham, J., concurs specially.