Carl Sloan v. State

• Court: Court of Appeals of Georgia
• Decided: October 16, 2012
• Docket: A12A1537
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

October 16, 2012

In the Court of Appeals of Georgia A12A1537. SLOAN v. THE STATE.

BARNES, Presiding Judge.

In May 2000, a jury convicted Carl Levert Sloan of aggravated battery,

aggravated assault, battery, three counts of cruelty to children, and four counts of

false imprisonment, and the trial court sentenced him as a recidivist to 84 years in

confinement. His trial counsel moved for a new trial in June 2000, but despite Sloan’s

repeated attempts to gain a ruling, the motion was not denied until more than a decade

later, in May 2011. As our Supreme Court recently noted,

We do not condone this inordinate delay in the motion for new trial proceedings. . . . These delays put at risk the rights of defendants and crime victims and the validity of convictions obtained after a full trial. We therefore reiterate that it is the duty of all those involved in the criminal justice system, including trial courts and prosecutors as well as defense counsel and defendants, to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay.

Shank v. State, 290 Ga. 844, 849 (5) (c) (725 SE2d 246) (2012).

On appeal, Sloan contends that the trial court erred in denying his motion for

a mistrial after a child witness placed his character into evidence. Because the trial

court gave appropriate curative instructions and did not abuse its discretion in

denying the motion for mistrial, we affirm.

The evidence at trial showed that Sloan became angry at his girlfriend one

night and woke her up, “fussing and cussing” at her for allegedly seeing another man.

He removed his belt and beat her with it, slapped her face, and wrapped the belt

tightly around her neck, choking her and threatening to kill her. Sloan finally allowed

the victim to go to work, where she made an outcry. In addition to multiple bruises

and scratches, the victim’s index finger was broken in two places, and the next day,

she went to an emergency room for examination and treatment. Due to the nature of

the victim’s injuries, several law enforcement officers came to the ER and talked to

the victim, who would not name Sloan as her assailant because she feared “[h]e

would go to jail and get out, and [she] didn’t know what was going to happen after

2 that.” The victim took out a warrant against Sloan the next day, obtained a temporary

protective order, and changed her locks.

In the early hours of December 24, 1999, Sloan returned to the victim’s

residence and pushed his way in while holding a 22-ounce beer bottle. He grabbed

the victim by her ponytail, dragged her into her bedroom, and began slapping her.

During the assault, the victim’s three children, who were ages four, eight, and nine

as of the trial, came into the hallway, and Sloan ordered them to sit on the bed by their

mother, who was crying. Sloan continued cursing at the victim, smashed the beer

bottle on the television, and used the broken bottle to cut the victim’s arm and leg.

The children were “hollering and crying,” and the four-year-old told Sloan to stop

hitting his mother. Sloan told him to “shut the f*** up” and slapped him. When the

victim’s daughter told Sloan to stop hitting her mother, he replied, “Your mama is a

mother-f***ing whore” and began to spit on the mother. The mother quietly

encouraged her daughter to leave the house and get help from her great-grandmother,

who lived across the street. The great-grandmother called 911, but Sloan left the

house before the police arrived.

The victim’s eight-year-old child also testified about the assault. On cross-

examination, the child denied talking to the prosecutor before trial but admitted on

3 re-direct that he had talked to her briefly. The prosecutor asked the child what she had

asked him to do before the trial began, and the child responded that the prosecutor

told him to tell the truth.

The victim’s nine-year-old daughter trial, testified that Sloan told the children

to come into their mother’s room so they could watch him kill her and then tell their

future children about it. She confirmed that Sloan, whose nickname was “Pig,” hit her

brother and cut her mother with a broken bottle. As with the prior child witness, on

cross-examination Sloan asked the child about previous conversations with the

prosecutor. On re-direct, the prosecutor asked, “What did I ask you to do for your

testimony?” The child responded, “Never – never talk about Pig in jail.”

Sloan objected and moved for a mistrial, arguing that the child had improperly

introduced evidence of Sloan’s character. The prosecutor explained that she had

anticipated the child would answer that she had been asked to tell the truth, as her

brother just had, and that she had attempted to talk over the child’s response when she

realized what the child was saying. The prosecutor argued that a mistrial was

unnecessary and that a curative instruction that did not repeat what the child said

would be sufficient. The trial court had not heard the child’s response, and after

listening to a recording of the testimony several times, the court ruled that it could not

4 determine whether the jury had heard the child without polling them, which would

just reinforce the improper testimony. Considering the context of the quiet answer,

the court denied the motion and instructed the jury that if anyone had heard the last

response from the last witness, they were to disregard it entirely and not consider it

as evidence.

Sloan does not dispute the fact that the evidence was sufficient to support the

guilty verdicts. His sole claim on appeal is that the trial court committed reversible

error by denying his motion for mistrial. “When prejudicial matter is placed before

the jury in a criminal case, the trial judge must decide whether a mistrial must be

granted as the only corrective measure or whether the prejudicial effect can be

corrected by withdrawing the testimony from the consideration of the jury under

proper instructions.” Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315) (1982). The

decision “is within the trial court’s sound discretion, and the trial court’s exercise of

that discretion will not be disturbed on appeal unless a mistrial is essential to preserve

the defendant’s right to a fair trial.” Ottis v. State, 271 Ga. 200, 201 (3) (517 SE2d

525) (1999). Here, the trial court acted immediately, ruled out the offensive

testimony, and properly instructed the jury not to consider it in its deliberations.

5 Under the facts of this case, we cannot say that this amounted to an abuse of

discretion.

Judgment affirmed. Adams and McFadden, JJ., concur.