Russell v. State
308 Ga. App. 328
| Ga. Ct. App. | 2011Background
- Russell was convicted by jury of selling and possessing cocaine under OCGA § 16-13-30.
- GBI undercover agents conducted a Barrow County cocaine distribution investigation, recording two February 22, 2003 transactions with Russell.
- Three of the four agents testified identifying Russell as the dealer; Russell admitted being the man in the recordings.
- Russell testified he acted as an informant for the Statham Police Department and called McCowan to corroborate this claim.
- McCowan testified that Russell had an information-sharing agreement but was not authorized to distribute drugs; prosecutors elicited McCowan’s related conduct.
- During cross-examination, McCowan stated he pulled a photo of Russell from the Pardons and Paroles website, prompting a mistrial motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the improper reference to a photograph required mistrial | Russell | State | No abuse of discretion; not grounds for mistrial |
| Whether the curative instruction cured any prejudice from the improper remark | Russell | State | Curative instruction was sufficient to remedy prejudice |
Key Cases Cited
- Crane v. State, 294 Ga.App. 321 (2008) (admissibility of character evidence; general rule)
- Agee v. State, 279 Ga. 774 (2005) (mistrial when prejudicial matter before jury; discretionary standard)
- Dukes v. State, 273 Ga. 890 (2001) (prompt curative instruction sufficient to remedy prejudice)
- Sims v. State, 268 Ga. 381 (1997) (curative instruction sufficiency; unsolicited prejudicial testimony)
- Shelnutt v. State, 255 Ga.App. 157 (2002) (voluntary remark not invited may not mandate mistrial)
- Mister v. State, 286 Ga. 303 (2009) (review of mistrial denial considering other evidence)
- Carr v. State, 282 Ga. 698 (2007) (mistrial determinations; multiple factors)
- Mathis v. State, 299 Ga.App. 831 (2009) (evidence of guilt overwhelming; prejudice Harmless)
- Morgan v. State, 303 Ga.App. 358 (2010) (overwhelming evidence supports affirmance despite minor prejudice)
- Young v. State, 297 Ga.App. 248 (2009) (denial of mistrial not abuse where other evidence damning)
- Sorrells v. State, 267 Ga. 236 (1996) (harmless error despite reference to prior incarceration)