Bell v. State

439 S.E.2d 480, 263 Ga. 776, 94 Fulton County D. Rep. 401, 1994 Ga. LEXIS 72

• Court: Supreme Court of Georgia
• Decided: February 7, 1994
• Docket: S93G1112
• Status: Published

Opinions

Benham, Justice.

Appellant Deric Bell was found guilty of trafficking in heroin and sentenced to life imprisonment. After reserving her objections to the trial court’s instructions to the jury, defense counsel sought a mistrial on the ground that the prosecutor had injected prejudicial matters not in evidence by making reference to a drug-related, execution-style triple murder and to a serial rapist in her closing argument. The Court of Appeals affirmed appellant’s conviction (Bell v. State, 208 Ga. App. 201 (430 SE2d 124) (1993)), and we granted certiorari to consider whether the prosecutor’s references in her closing argument to two well-known, unrelated criminal cases fell within the wide latitude afforded closing argument.

Argument of counsel is a valuable privilege, and may not be unduly restricted. On the other hand, the court must not allow such latitude as will defeat the justice of the cause, such as introducing prejudicial matters not in evidence. The dignity of the court, and the public interest in having its courts properly conducted, are involved.

Brooks v. State, 183 Ga. 466, 468 (188 SE 711) (1936). The case at bar was based on a sale of 7.5 grams of uncut heroin that was observed by a surveillance team from the narcotics squad of the Atlanta Police Department. No physical violence or threat thereof was involved, though a defense expert admitted on cross-examination, over appellant’s objection, that he was aware that drugs were a cause of shootings in Atlanta. In justifying her reference in closing argument to the triple murder, the prosecutor relied on the testimony about violence in the drug trade and asserted that this case was analogous to the triple murder since both involved young men selling drugs in Atlanta housing projects. The prosecutor explained her mention of the serial rapist as an attempt to illustrate the concept of similar transactions.

In recent years, the content of the prosecutor’s closing argument has been the subject of several appeals, giving us the opportunity to examine the scope traditionally given attorneys in closing argument. At times, procedural problems have thwarted our ability to formulate an opinion that is not dictum. See, e.g., Hodge v. State, 262 Ga. 242 (416 SE2d 518) (1992) (where the prosecutor’s reference in closing argument in a murder case to a widely-publicized murder was not enumerated as error), and Cooper v. State, 260 Ga. 549 (3) (397 SE2d 705) (1990) (where the prosecutor’s reference in closing argument in a murder case to a well-known murder and to a notorious sexual assault was not the subject of a motion for mistrial or a request for curative instructions). We take this opportunity to reiterate that the wide range of discussion permitted in closing argument does have its limitations, the first and foremost of which is the longstanding prohibition against “ ‘the injection into the argument of extrinsic and prejudicial matters which have no basis in the evidence.’ ” Conner v. State, 251 Ga. 113 (6) (303 SE2d 266) (1983), quoting Floyd v. State, 143 Ga. 286, 289 (84 SE 971) (1915). Observance of this constraint is vital to an accused’s right to a fair trial.¹

In the case at bar, there was no evidence of drug-related murder or serial rape, or evidence from which serial rape and murder would be a reasonable inference. Compare Todd v. State, 261 Ga. 766 (2) (a) (410 SE2d 725) (1991). By referring to such extraneous and prejudicially inflammatory material in her closing argument, the prosecutor exceeded the wide latitude of closing argument, to the detriment of the accused and to the detriment of the fair administration of justice. Inasmuch as the grant of a mistrial for improper argument should be liberally exercised where counsel abuses the right of argument by prejudicing the case of the opposite party (Jordan v. State, 247 Ga. 328 (11) (276 SE2d 224) (1981)), we reverse the Court of Appeals’ affirmance of the trial court’s denial of appellant’s motion for mistrial.

Judgment reversed.

All the Justices concur, except Hunt, P. J., who dissents.

1 Adherence to the limitation on the latitude of oral argument is also integral to legal professionalism.

[T]he habit of counsel in addressing the Jury, of commenting upon matters not proven and not growing out of the pleadings . . . [is] illegal and highly prejudicial to a fair and just administration of the rights of parties. . . . [I]t is the duty of counsel to guard, by the most scrupulous propriety of demeanor, in the conduct of a cause, the dignity and honor of the profession.

Mitchum v. State, 11 Ga. 615 (7) (1852).