Black v. State

Beasley, Judge,

concurring specially.

I concur for the reason that the curative instruction removed any inference that the judge favored the State’s witness and thus precluded the necessity for a mistrial to be declared. Assuming the placement of the original instruction gave rise to such an inference, it was eliminated by the curative instruction which brought the trial into compliance with OCGA § 17-8-57.

I do not agree that the opportunity for appellate review of the ruling on the motion for mistrial was lost by nonrenewal, for defendant made clear before the suggested re-instruction was given that: “Let me also state, Your Honor, that no way do I feel like those instructions will cure the taint that has occurred by you giving the charge at the time you did.” Defendant unequivocally notified the trial court that he insisted on a mistrial despite the proposed curative instruction, which was given, thus serving the purpose for requiring renewal of the motion, i.e., that the curative instruction was not a satisfactory remedy. See Barnes v. State, 111 Ga. App. 348 (1) (141 SE2d 785) (1965).