Arkeem Hopkins v. State

• Court: Court of Appeals of Georgia
• Decided: May 18, 2016
• Docket: A16A0264
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., BOGGS and RICKMAN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules

May 18, 2016

In the Court of Appeals of Georgia A16A0264. HOPKINS v. THE STATE.

BARNES, Presiding Judge.

Following his convictions for DUI (less safe alcohol), obstruction of a police

officer, interference with government property, failure to stop at a stop sign, failure to

register automobile, and one count of simple assault, Arkeem Hopkins appeals. Hopkins

contends that the trial court erred in denying his motion for mistrial based on an improper

closing argument. We disagree and affirm the conviction.

On appeal, we view the evidence in the light most favorable to the verdict, and the

defendant no longer enjoys the presumption of innocence. Hyman v. State, 222 Ga. App.

419, 421 (1) (474 SE2d 243) (1996). So viewed, the evidence shows that a police officer

stopped Hopkins after she “saw the vehicle blow through the stop sign.” When she

approached Hopkins’ vehicle, the officer smelled alcohol coming from his breath and the

vehicle, and she noticed his eyes appeared red and glassy. The officer noticed that the

registration and insurance did not appear under Hopkins’ name and asked him to get out

of the vehicle. When he exited the vehicle, Hopkins seemed unsteady and disheveled and told the officer he had four drinks that evening, but could not recall the time of his last

drink. Hopkins initially agreed to perform a preliminary breath test, but then said that it

was “too hot to breathe.” Hopkins refuse any other field sobriety tests. Based on his

observations, training, and experience, the officer concluded that Hopkins was a less safe

driver because of alcohol impairment and read Hopkins the implied consent warning. As

the officer attempted to place him in handcuffs, Hopkins attempted to evade arrest, but

was eventually taken into custody and later indicted on the above charges.

At trial during the State’s closing, Hopkins objected and moved for a mistrial

arguing that the State made an improper statement when, referring to the traffic stop, the

prosecutor said that it “was a dangerous situation. What if he had a gun.” The trial court

sustained the objection, but denied the motion for a mistrial. The trial court gave the jury

curative instructions, telling them “what the attorneys say in closing arguments is not

evidence. There was no evidence of gun or anything and you shouldn’t use insinuations

or anything like that in arriving at your verdict.” The jury found Hopkins guilty, and he

now appeals.

Hopkins contends the trial court erred when it denied his motion for mistrial based

on an improper closing argument. “The granting or refusal to grant a mistrial has long

been held to be largely in the discretion of the trial judge, but a mistrial should be granted

2 when it is essential to preserve the right of fair trial.” Woods v. State, 233 Ga. 495, 498

(II) (212 SE2d 322) (1975).

Here, the trial court sustained Hopkins’ objection to the remark, and instructed the

jury to disregard the State’s statement about the gun and reminded them only to consider

the evidence and law as charged, curing any unfairness created by the State’s argument.

“It is for the trial court to determine whether the granting of a mistrial is the only

corrective measure or whether any prejudice can be corrected by withdrawing the

testimony from the jury’s consideration under proper instruction from the

court.”(Citation and punctuation omitted.) Banks v. State, 281 Ga. 678, 682 (3) (642

SE2d 679) (2007). Assuming without deciding that the statement at issue was improper,

we conclude that the trial court’s curative instructions adequately preserved Hopkins’

right to a fair trial, and the trial court did not abuse its discretion in denying a mistrial.

See Davis v. State, 285 Ga. 343, 344 (2) (676 SE2d 215) (2009) (“[A]ny purported harm

was cured when the trial court instructed the jurors that they could only consider the

evidence and law as charged.”)

Accordingly, we affirm the conviction.

Judgment affirmed. Boggs and Rickman, JJ., concur.