Fears v. State

331 S.E.2d 49 | Ga. Ct. App. | 1985

Sognier, Judge.

Anthony Fears, Mark Glover and Keith Glover were convicted of aggravated assault by beating the victim with a metal pipe. In their sole enumeration of error appellants contend the trial court erred by denying their motion for a mistrial after the State improperly placed appellant Keith Glover’s character in issue.

Thomas Cuffie, a character witness, testified that appellant Keith Glover had a good reputation in the community for non-violence and for respect for other persons. On cross-examination the prosecuting attorney asked Cuffie if he knew about a forgery committed by Keith Glover in 1980. Counsel for appellants objected and moved for a mistrial. At a hearing on the motion the prosecuting attorney discovered that an indictment for forgery in appellant Keith Glover’s file pertained to a different Keith Glover and had been filed erroneously by the clerk of court’s office with the indictment and “rap sheet” pertaining to appellant Keith Glover. The prosecuting attorney stated that the mistake was unintentional and he apologized to the court and appellant’s counsel for the error. The motion for a mistrial was denied and the trial court instructed the jury to disregard the State’s question about a forgery, and that the State had made a mistake and had apologized to the court. The court also instructed the jury to strike the question from their minds and not to consider it in their deliberations.

Decided April 25, 1985. Earl A. Davidson, for appellants. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Margaret V. Lines, Ann Mitchell, Assistant District Attorneys, for appellee.

Appellants made no objection to the curative instructions and did not renew their motion for a mistrial. Since the rule requiring renewal of a motion for a mistrial following curative instructions has been retained in criminal cases, the issue has not been preserved for appellate review. Fambro v. State, 165 Ga. App. 445, 447 (4) (299 SE2d 114) (1983).

Judgment affirmed.

Birdsong, P. J., and Carley, J., concur.