Allen v. StateAllen v. State
- Reporters:
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- Before:
- Blackburn
The appellant, Eric Allen, was convicted of child molestation of his 11-year-old niece, and sentenced to 15 years’ imprisonment. This
At the trial, the victim testified about an incident in which Allen told her to go to the bedroom in his trailer, where he pushed her onto the bed, took off her clothes, and engaged in anal and vaginal intercourse with her. Evidence of a similar transaction involving an eight-year-old niece of the appellant was also admitted. Allen testified and acknowledged pleading guilty to molesting his other niece, for which he already was in prison, but he denied molesting the victim in this case.
1. Prior to the trial, the trial court granted the State’s motion in limine to exclude any evidence regarding sexual promiscuity of the victim involving any other person, pursuant to
In Smith v. State, 259 Ga. 135 (377 SE2d 158) (1989), the Supreme Court held that the rape-shield law does not prohibit evidence of prior false allegations of sexual misconduct made by the victim against men other than the defendant. However, before such evidence may be admitted, the trial court must make a threshold determination outside the presence of the jury that a reasonable probability of falsity exists.
In the instant case, in arguing for the admission of the evidence, defense counsel made no claim that any allegations against the victim’s stepfather were false. Further, defense counsel asked the victim the question without first requesting the trial court to determine the admissibility of the line of inquiry outside the jury’s presence. Under these circumstances, the trial court properly disallowed the inquiry.
2. Allen contends that the trial court erred in denying his motion for mistrial, on the grounds that he appeared before the jury “bound and shackled and accompanied by a deputy sheriff into the courthouse.” However, the record actually shows that Allen was brought back from lunch recess wearing handcuffs, which were removed before he entered the courtroom. He did pass by the jury room, but only one juror was back from lunch and, according to the jury bailiff, that juror could not have seen the removal of the handcuffs from where she sat. “Absent justifying circumstances, the defendant normally should not be seen by the jury handcuffed in the courtroom or courthouse. However, where one or more jurors by chance see the defendant in handcuffs outside the courtroom, it is not error to deny a motion for mistrial.” Gates v. State, 244 Ga. 587, 593 (261 SE2d 349) (1979).
Initially, he contends that the trial court erred in allowing the state to intimidate the witness by advising him of the
Miranda
warnings and of his Fifth Amendment right not to incriminate himself. However,
Allen further contends that the prosecutor intimidated Virgil before the trial by threatening that he could receive up to twenty years in jail on each of three offenses if he did not testify as to what was reported in his original statement, and during the trial by reminding him of his failure to take a polygraph test that had been proposed by the State and initially agreed upon by Virgil. The record contradicts that contention regarding the pretrial confrontation, as on cross-examination Virgil conceded that the prosecutor had never told him to say anything other than the truth. Concerning the polygraph, the inquiry about the State having proposed such a test to resolve Virgil’s conflicting statements was an appropriate impeachment of Virgil’s initial claim during trial that the prosecutor had instructed him to testify a certain way.
The trial court properly denied Allen’s motion for mistrial based upon this reference to a polygraph test having been proposed by the State, agreed upon by Virgil, and then never taken. In Georgia, the results of polygraphs are admissible upon express stipulation by the parties, but all other evidence concerning polygraphs is nonprobative and inadmissible. However, not every reference to a polygraph requires reversal. Brown v. State, 175 Ga. App. 246 (333 SE2d 124) (1985). The instant case involves merely a reference to the proposed polygraph, which was necessary to impeach Virgil’s trial testimony regarding the State’s alleged efforts to intimidate him.
We also reject Allen’s contention that the trial court erred in al
4. During closing argument, defense counsel asserted that the procedural rules in the criminal prosecution made it difficult for him to present a defense. In response to that suggestion that the rules were slanted in favor of the prosecution, the State reminded the jury that the defendant had twice as many jury strikes as did the State. Defense counsel then objected on the grounds of relevance, and moved for mistrial.
The proper range of comment by counsel during closing argument is within the discretion of the trial court. Mathis v. State, 171 Ga. App. 620 (320 SE2d 861) (1984). Counsel is usually given a wide latitude in closing argument. See Hicks v. State, 256 Ga. 715 (23) (352 SE2d 762) (1987). In the instant case, the trial court denied the motion for mistrial after noting that it had previously advised the jury about the juror selection process, and that the State’s reminder thus was merely repetitive. We find no abuse of discretion in the denial of the motion for mistrial.
5. Lastly, Allen contends that the cumulative effect of the alleged errors enumerated about resulted in a denial of his right to a fair trial. However, “[t]his state does not follow a cumulative error rule of prejudice. Any error of record must stand or fall upon its own merits and is not aided or aggravated by the accumulative effect of other claims of error.” (Citations and punctuation omitted.) Thompson v. State, 201 Ga. App. 646, 649 (411 SE2d 886) (1991).
Judgment affirmed.
McMurray, P. J., and Johnson, J., concur.