Tolbert v. State
313 Ga. App. 46
| Ga. Ct. App. | 2011Background
- Tolbert and co-defendant Willis committed a home invasion in July 2007 involving a fake lottery ticket.
- Victims Brenda Rogers and Kelvin Robinson were assaulted and robbed inside the home; Robinson sustained serious injuries.
- Tolbert was charged with armed robbery, two counts of kidnapping with bodily injury, two counts of aggravated assault, three counts of aggravated battery, aggravated sodomy, and possession of a firearm during the crime.
- Tolbert filed a speedy-trial demand under OCGA § 17-7-171; the demand was struck off the record, and Tolbert later sought an out-of-time speedy-trial demand which was granted but never filed.
- After two mistrials and a change in counsel, Tolbert was convicted by jury in November 2009; he appealed raising multiple enumerations of error.
- The Court of Appeals affirming Tolbert’s convictions on all counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Speedy-trial discharge under OCGA § 17-7-171 | Tolbert argues discharge and acquittal because more than two terms passed without trial. | State maintains the speedy-trial demand was struck and Tolbert waived rights by not filing an out-of-time demand. | Trial court did not err; discharge denied. |
| Directed-verdict on kidnapping with bodily injury (asportation) | Asportation element not proven beyond a reasonable doubt. | Movement was incidental to the robbery and insufficient for asportation. | Sufficient evidence of asportation supported kidnapping conviction. |
| Mistrial due to co-defendant's pretrial incarceration reference | Reference implied Tolbert’s incarceration; curative instruction insufficient. | Trial court acted within discretion; curative instruction proper. | No abuse of discretion; mistrial not required. |
| Closing argument about gun not in evidence | State improperly speculated about missing gun in closing. | Remarks were rebuttal capable of logical inference from evidence. | Not improper; rebuttal argument permissible. |
| Exclusion of testimony re: misreported forensic evidence from prior trial | Investigator’s prior misreporting relevant to credibility. | Testimony was irrelevant to current guilt/innocence. | Trial court properly excluded; no reversible error. |
Key Cases Cited
- Garza v. State, 284 Ga. 696, 670 S.E.2d 73 (2008) (four-part test for asportation in kidnapping analysis)
- Hall v. State, 308 Ga.App. 858, 709 S.E.2d 348 (2011) ( Garza framework applied to evaluate asportation)
- Curtis v. State, 310 Ga.App. 782, 714 S.E.2d 666 (2011) (asportation sufficiency in domestic setting)
- Hammond v. State, 289 Ga. 142, 710 S.E.2d 124 (2011) (asportation and related kidnapping standards)
- Murphy v. State, 203 Ga.App. 152, 416 S.E.2d 376 (1992) (limitations on prosecutorial argument regarding evidence)