570 S.E.2d 597 | Ga. Ct. App. | 2002
A jury found Harvey Grant guilty of simple battery. He appeals, alleging the trial court improperly limited his closing argument, the state improperly placed the burden of persuasion on him, and the trial court erred in denying his request for mistrial after the state questioned him about prior arrests. Because each of these enumerations of error lacks merit, we affirm Grant’s conviction.
Viewed in a light most favorable to support the verdict, the evidence shows that Grant and the victim lived together. On July 17, 2001, the victim’s father picked her up between 5:00 and 5:30 p.m. to attend a funeral. They returned between 9:15 and 9:30 p.m. Subsequently, Grant and the victim argued about a truck which, had allegedly turned around in the driveway earlier that day and about Grant’s feelings about the victim’s infidelity. Grant then left the house.
Shortly after 1:00 a.m., Grant returned to the house. He told the victim he wanted to talk, but the victim smelled alcohol on his breath and told Grant, ‘You’ve been drinking and you’re high, we’ll talk later.” She knew something was about to happen because of her past experiences with Grant. Grant denied he had been drinking while he was out with his friends and testified that the victim was angry and accused him of being unfaithful.
At this point, Grant’s version of the incident differs from the victim’s version. According to the victim, Grant grabbed her hand and yelled at her for trying to call the police. He then punched her under
According to Grant, the victim was the aggressor. She threw her keys at him, hitting him in the face and cutting him. At that point, Grant pushed the victim on the bed, and the victim struck him with the keys. Then the victim threw an ashtray at Grant, which missed and broke against a wall. The victim grabbed a large piece of the glass and cut Grant on the arm with the glass. After a struggle, the victim ran outside and called police. Once police arrived, both parties were questioned and arrested.
1. Grant contends the trial court improperly limited his closing argument by refusing to allow him to comment on the state’s failure to call the arresting police officer. We find no abuse of discretion.
We agree that Grant had the right to comment on the state’s failure to call witnesses where the jury was presented with evidence that the missing witnesses had “knowledge of facts relevant and material to the case.”
2. Grant contends that during closing argument, the state placed the burden of proof on him:
State: . . . you’ve got two versions of the story. When you go back in that room, you can only accept one because that you have to decide for yourself based on the credibility, as [Grant’s attorney] said. You have to determine if that man sitting right there is more credible than [the victim]. And that you have to believe that everything he’s saying was the truth to you that day in order for you to find him not guilty. Defense Attorney: Your Honor, I — I object. That’s a mis*277 statement of the law. They do not have to believe the Defendant’s story in order to acquit him.
Court: Well, now, the jury will make the decision about what the facts in the case and the evidence presented has been sufficient to convince them beyond reasonable doubt of the guilt of the Defendant. Go ahead.
While this comment during closing argument did address Grant’s credibility, it did not shift the burden of proof to Grant. In fact, Grant’s attorney admitted during closing argument that if the jury believed the victim, then they had to believe Grant was lying.
During closing argument; counsel may make inferences and ask the jury to look at such inferences even if the inferences are illogical, unreasonable, or absurd.
3. Grant argues that the trial court erred in overruling his objection and request for mistrial when the state questioned him about prior arrests. During cross-examination, Grant was asked the following:
State:. . . you were going to jail?
Grant: Yeah, automatically, any time it’s a domestic like that, you’re going to jail.
State: Okay.
Grant: So might as well go put my pants on and sit on the car and wait. I don’t want no problem.
State: I got you. Okay. And you know that because of what? Grant: I know that because of experience, family — I mean, other friends getting into it, family. I know it from — I know it from those.
State: Would it be from the prior times you’ve been arrested for that?
Grant claims this last question asked him about prior arrests and the fact that he knew police protocol, not merely prior difficulty between Grant and the victim. We disagree. The line of questioning clearly referred to domestic abuse arrests, and the jury was already aware
On appeal, we will not disturb a trial court’s ruling on a motion for mistrial absent an abuse of discretion.
Judgment affirmed.
Morgan v. State, 267 Ga. 203, 206-207 (3) (476 SE2d 747) (1996).
See Dennis v. State, 226 Ga. App. 390, 391 (2) (486 SE2d 656) (1997).
Morgan, supra at 203-204 (1).
See Arnold v. State, 249 Ga. App. 156, 161 (3) (545 SE2d 312) (2001).