Mullins v. Thompson

553 S.E.2d 154, 274 Ga. 366, 2001 Fulton County D. Rep. 2930, 2001 Ga. LEXIS 779

• Court: Supreme Court of Georgia
• Decided: October 1, 2001
• Docket: S01A0865
• Status: Published

Opinions

Thompson, Justice.

This case presents a question of first impression: Can a witness who is a lawyer be impeached by evidence showing that his license to practice law was suspended? We answer this question in the negative.

Evelyn Mullins died testate, leaving a number of children. One, Kathy Thompson, petitioned to probate the will; another, Roy Mullins, filed a caveat, alleging the will was a “traced forgery.” The probate court admitted the will to probate and Mullins appealed to the superior court which, following a de novo jury trial and a verdict in favor of Thompson, upheld the validity of the will.

One of the witnesses to the will was Larry Threlkeld, a lawyer. Mullins wanted to impeach Threlkeld by showing that he had made false statements to a client in violation of the Rules of Professional Conduct, and that, consequently, his license to practice law had been suspended for six months. The superior court would not allow Threl-keld to be impeached in that manner, and Mullins enumerates error upon that ruling. We affirm.

1. In Georgia, a witness may be impeached by proving that he or she was convicted of a crime of moral turpitude. Pope v. Fields, 273 Ga. 6, 8 (536 SE2d 740) (2000); Strickland v. State, 166 Ga. App. 702, 703 (305 SE2d 434) (1983). In order to discredit a witness in this manner, “a certified copy of the record of conviction must be introduced into evidence; absent a waiver of the ‘best evidence rule,’ no other showing will suffice.” Sapp v. State, 271 Ga. 446, 448 (520 SE2d 462) (1999). Threlkeld’s suspension from the practice of law clearly reflected moral shortcomings; however, it was not the equivalent of a conviction of a crime of moral turpitude.

2. During closing argument, Thompson’s counsel referred to Threlkeld as a lawyer who had been a member of the bar for 20 years. At the conclusion of the argument, the jury retired. At that point, Mullins moved for a mistrial, positing that Thompson should not be allowed to argue in favor of Threlkeld’s credibility (as a member of the bar), since Mullins was not permitted to show that Threl-keld had been suspended from the practice of law. The superior court denied the mistrial motion. We find no error.

[T]he time to object to improper closing argument is when the impropriety occurs at trial. . . . When(, as here,) no timely objection is interposed, the test for reversible error ... is whether the improper argument in reasonable probability changed the result of the trial.

Benton v. Chatham County, 206 Ga. App. 285, 288 (425 SE2d 317) (1992), quoting Tharpe v. State, 262 Ga. 110, 114 (16) (416 SE2d 78) (1992). Assuming, without deciding, that the argument of Thompson’s counsel was improper, it cannot be said that, in reasonable probability, it changed the result of the trial.

That this Court, and the Court of Appeals, have previously stated that a motion for a mistrial based upon improper closing argument can be made during or after argument, see, e.g., Miller v. State, 267 Ga. 92 (2) (475 SE2d 610) (1996); Williams v. Memorial Med. Center, 218 Ga. App. 107, 109 (460 SE2d 558) (1995), does not aid Mullins’ cause. In Butler v. State, 273 Ga. 380, 384 (8) (541 SE2d 653) (2001), a majority of this Court rejected the notion that a motion for mistrial based upon an improper closing argument can be made after closing argument, see id. at 386 (concurring opinion), and held, to the contrary, that such a motion must be made at the time the improper argument is uttered. Butler reached that holding fully and fairly. The dissent is simply wrong when it states that Butler was “a stark abandonment of stare decisis”; and that it was rendered in a “cursory” manner.

The dissent’s reliance upon the Unified Appeal Procedure to support the proposition that a motion for mistrial based on improper argument can be made after closing argument is also wrong. The UAP states that objections to the state’s closing argument must be made “as soon as grounds for such objection arise, unless explicit permission is granted to reserve objection until the conclusion of argument.” UAP Rule III A (2) (d), B (2) (d). This rule proves that Butler was decided correctly. It requires defense counsel to object to improper argument during the argument, unless explicit permission is granted to reserve the objection until after the argument. See generally State v. Larocque, 268 Ga. 352 (489 SE2d 806) (1997). The dissent’s characterization of this rule as being “different” from the “general rule” is baseless.

Judgment affirmed.

All the Justices concur, except Fletcher, C. J, and Hunstein, J., who dissent.