Smith v. State

407 S.E.2d 732 (1991) 261 Ga. 512

SMITH
v.
The STATE.

No. S91A0733.

Supreme Court of Georgia.

September 4, 1991.

John W. Sherrer, Jr., Vienna, for Smith.

John C. Pridgen, Dist. Atty., Denise D. Fachini, Asst. Dist. Atty., Cordele, Michael J. Bowers, Atty. Gen., C.A. Benjamin Woolf, Atty., State Law Dept., Atlanta, for State.

BELL, Justice.

Smith appeals from his conviction of the malice murder of Jeremiah Dempsey.^[1] On appeal he contends that the evidence is insufficient to support the conviction, and that the prosecutor violated his right to a fair trial during opening statements. We affirm.

1. Smith contends that the evidence is insufficient to support his murder conviction. We disagree. Several eyewitnesses to the crime testified that Smith approached the victim outside a pool room, told the victim that he (Smith) had told the victim that he was going to get him, and shot the victim first in the chest and then in the back of the head. The eyewitnesses testified that Smith and the victim did not argue before the shooting. We conclude the evidence is sufficient to satisfy Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

2. During opening statements defense counsel objected when the prosecutor said that the grand jury had listened to evidence presented only by the state and had determined that Smith committed the crime of malice murder. The court sustained the objection and instructed the jury "to disregard the comments as to what the grand jury found. The grand jury found only probable cause to proceed." Defense counsel did not make a motion for a mistrial or request any further curative instructions. Smith now contends that the prosecutor violated his right to a fair trial, and that he is thus entitled to a new trial. However, we conclude that Smith waived his right to appellate review of this issue by failing to make a motion for a mistrial or to renew his objection after the court gave curative instructions. Perkins v. State, 260 Ga. 292, 295(6), 392 S.E.2d 872 (1990).

Judgment affirmed.

All the Justices concur.

NOTES

[1] The crime occurred on November 10, 1989. Smith was indicted on May 3, 1990. A jury found Smith guilty on August 21, 1990, and the court sentenced Smith to life in prison on August 22. Smith filed a motion for new trial on September 19, 1990. The court reporter certified the transcript on October 4, 1990. The court denied Smith's motion for new trial on January 10, 1991. Smith filed his notice of appeal on February 7, 1991, and the case was docketed in this court on March 1, 1991. The appeal was submitted for decision without oral argument on April 12, 1991.