Hammond v

State, 264 Ga. 879, 452 S.E.2d 745, cert. denied, 516 U.S. 829, 116 S. Ct. 100, 133 L. Ed. 2d 54 (1995). Right granted to defendants who introduce no evidence does not deny equal protection. — Allowance of an accused who has not introduced evidence to have the opening and closing argument is a reasonable exception to the general rule that the right to open and close argument belongs to the prosecution, and not a denial of equal protection of the laws to those who are not benefitted by the rule. Yeomans v. State, 229 Ga. 488, 192 S.E.2d 362 (1972). 17-8-71 Mistrial properly denied based on prosecutor’s improper opening statement. — Trial court did not abuse the court’s discretion in refusing to grant the defendant’s motion for a mistrial after the prosecutor commented during opening statements on what the state anticipated the defense would entail; the trial court gave a curative instruction and instructed the jury after all the evidence was presented as to the presumption of the defendant’s innocence, the right to not testify, the state’s burden to prove guilt beyond a reasonable doubt, and that the state’s opening statement did not constitute evidence. Cook v. State, 276 Ga. App. 803, 625 S.E.2d 83 (2005). Procedure in trial on defendant’s claim of mental retardation. — Trial of a habeas corpus petitioner’s claim of mental retardation should be regarded as a completion of the guilt/innocence phase of the petitioner’s original trial and, therefore, the state was entitled under Ga. Unif. Super. Ct. R. 10.2 to make an opening statement before the petitioner. Under O.C.G.A. § 17-8-71, the state was entitled to make an initial closing argument, the petitioner could then make the petitioner’s closing argument, and the state was entitled to make a final closing argument. Stripling v. State, 289 Ga. 370, 711 S.E.2d 665 (2011). Ineffectiveness of counsel. — Defendant’s assertion that, under former O.C.G.A. § 17-8-71, defense counsel could have called a witness for impeachment and not lost the right to conclude final arguments was erroneous, and thus defense counsel’s strategy was not ineffective; in any event, at trial, the codefendant called a witness, which meant that the defendant, as well as the codefendant, lost the right to make the final closing argument to the jury. Rolland v. State, 280 Ga. 517, 630 S.E.2d 386 (2006). Defendant’s attorney did not provide ineffective assistance in the defendant’s child molestation trial by failing to call witnesses for the defense because the attorney’s decision was based on a strategic choice to preserve the right to the final closing argument under O.C.G.A. § 17-8-71; in addition, the defendant failed to show prejudice by proffering the 873 General Consideration (Cont’d) testimony of any witnesses who would have provided testimony that was favorable to the defendant and would have changed the outcome of the trial. Wheat v. State, 282 Ga. App. 655, 639 S.E.2d 578 (2006). Because the record showed that trial counsel’s decision to not impeach a state’s witness with evidence of two prior shoplifting convictions was part of a sound trial strategy to preserve the right to make the final closing argument under O.C.G.A. § 17-8-71, and counsel instead pursued alternative impeachment methods to establish bias, counsel was not ineffective; moreover, given this fact and the state’s evidence, it was unlikely that introduction of the shoplifting convictions would have produced a different outcome at trial. Duggan v. State, 285 Ga. App. 273, 645 S.E.2d 733, cert. denied, No. S07C1329, 2007 Ga. LEXIS 662 (Ga. 2007). Because trial counsel did not provide the defendant with ineffective assistance to the extent that the relevant strategic decisions made would have affected the outcome of the trial, and counsel properly chose not to object to the court’s failure to merge a kidnapping and false imprisonment conviction, as those crimes were independent offenses, the defendant’s motion for a new trial was properly denied. Snelson v. State, 286 Ga. App. 203, 648 S.E.2d 647 (2007). Trial counsel’s decision not to impeach a witness and to develop that witness as a suspect in the murder for which the defendant was on trial, as part of the strategy to preserve the right to final argument under O.C.G.A. 17-8-71, did not amount to deficient performance. Eason v. State, 283 Ga. 116, 657 S.E.2d 203 (2008). Defendant did not show that trial counsel was ineffective by failing to request rebuttal time following the State of Georgia’s closing statement because the defendant had no right under O.C.G.A. § 17-8-71 to make a rebuttal argument. Cobb v. State, 309 Ga. App. 70, 709 S.E.2d 9 (2011). Defendant failed to establish ineffective assistance of counsel on the ground that 17-8-71 trial counsel called the defendant as the only defense witness because under the version of O.C.G.A. § 17-8-71 in effect at the time of trial, a criminal defendant had the right to make the final closing argument to the jury if the defendant presented no evidence; thus, it was a reasonable trial strategy not to present evidence in order to preserve the right to close and despite that initial strategy being defeated when one of the codefendants introduced documentary evidence, the defendant failed to demonstrate that trial counsel failed to perform effectively once the trial strategy changed mid-trial. Bulloch v. State, 293 Ga. 179, 744 S.E.2d 763 (2013). Cited in Aldredge v. Williams, 188 Ga. 607, 4 S.E.2d 469 (1939); McElwaney v. State, 66 Ga. App. 112, 17 S.E.2d 202 (1941); Lewis v. State, 126 Ga. App. 123, 190 S.E.2d 123 (1972); Dean v. State, 126 Ga. App. 633, 191 S.E.2d 477 (1972); Park v. Huff, 493 F.2d 923 (5th Cir. 1974); Rolland v. State, 235 Ga. 808, 221 S.E.2d 582 (1976); Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976); Phillips v. State, 238 Ga. 497, 233 S.E.2d 758 (1977); Joseph v. State, 149 Ga. App. 296, 254 S.E.2d 383 (1979); Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979); Varnes v. State, 159 Ga. App. 452, 283 S.E.2d 673 (1981); Chambers v. State, 159 Ga. App. 669, 284 S.E.2d 682 (1981); Mitchell v. State, 169 Ga. App. 630, 314 S.E.2d 468 (1984); Campbell v. State, 253 Ga. 11, 315 S.E.2d 902 (1984); Stephens v. State, 170 Ga. App. 267, 316 S.E.2d 847 (1984); Baty v. State, 257 Ga. 371, 359 S.E.2d 655 (1987); Burden v. State, 187 Ga. App. 778, 371 S.E.2d 410 (1988); Williams v. State, 217 Ga. App. 347, 457 S.E.2d 257 (1995); Quintanilla v. State, 273 Ga. 20, 537 S.E.2d 352 (2000); Harrison v. State, 251 Ga. App. 302, 553 S.E.2d 343 (2001); Sheriff v. State, 277 Ga. 182, 587 S.E.2d 27 (2003); English v. State, 282 Ga. App. 552, 639 S.E.2d 551 (2006); Espinosa v. State, 285 Ga. App. 69, 645 S.E.2d 529 (2007); Madison v. State, 281 Ga. 640, 641 S.E.2d 789 (2007); Parker v. State, 283 Ga. App. 714, 642 S.E.2d 111 (2007); Chandler v. State, 281 Ga. 712, 642 S.E.2d 646 (2007); Lewis v. State, 292 Ga. App. 257, 663 S.E.2d 721 (2008); Stinski v. State, 286 874 Ga. 839, 691 S.E.2d 854 (2010). Opening and Closing by Defendant Purpose in allowing an accused with no defense to have the opening and concluding argument is to allow defense counsel every opportunity to persuade the jury that the state has failed to prove the defendant’s guilt. Yeomans v. State, 229 Ga. 488, 192 S.E.2d 362 (1972). Which party is entitled to open and close is often-times unclear, based on whether or not any admissible testimony or documentary evidence has been introduced by the accused. Scott v. State, 243 Ga. 233, 253 S.E.2d 698 (1979). Effect of no evidence by defendant and no argument by state. — In the trial of a criminal case, the accused introduced no evidence, and the accused’s attorney opened the case to the jury by presenting the law applicable to the facts, consuming less time than the rule of court allowed for argument, and the solicitor (now district attorney), without having previously given any notice of such intention, announced that there would be no argument for the state and that the court might charge the jury, and thereupon the attorney for the defendant stated to the court that the defense attorney had expected the solicitor to argue the case, and had, therefore, reserved for a concluding speech the defense attorney’s argument on the facts, and requested the court to allow the defense attorney to present argument on the facts to the jury, within the limits of the rule of court for argument, and this request was refused by the court, it was held that the court was in error. Porter v. State, 6 Ga. App. 770, 65 S.E. 814 (1909). See also Grant v. State, 97 Ga. 789, 25 S.E. 399 (1896). Right of accused if the accused offers nothing but accused’s own testimony. — It is beyond question in this state that when an accused offers no testimony or evidence into the trial of a case, other than the accused’s own testimony, the accused has the right to the opening and closing arguments. Scott v. State, 243 Ga. 233, 253 S.E.2d 698 (1979). Defendant’s right to open and conclude closing argument. — When defense counsel, during cross examination, 17-8-71 has a witness read portions of a prior written statement by that witness for the purpose of impeachment, the defendant has not lost the right to open and conclude closing argument under the standards set forth in Smith v. State, 272 Ga. 874, 536 S.E.2d 514 (2000). Lane v. State, 274 Ga. 751, 559 S.E.2d 455 (2002). Because no defendant had a vested right in any rule of evidence or procedure, the trial court did not err when the court enforced the amended version of O.C.G.A. § 17-8-71 and denied the defendants’ request for concluding argument at trial. Newman v. State, 286 Ga. App. 353, 649 S.E.2d 349 (2007). Trial strategy in child sexual abuse cases. — Trial court properly determined that the defendant’s counsel rendered effective assistance pursuant to the Sixth Amendment as the decision of counsel not to cross-examine a minor sexual offense victim by using the victim’s diary was a matter of trial strategy in that counsel wished to preserve closing argument pursuant to O.C.G.A. § 17-8-71; furthermore, counsel’s failure to present evidence of an allegedly previous ‘‘false allegation’’ was a non-issue as the defendant misunderstood that the step-daughter’s previous statement was not false, but instead, was supportive of the assertions of abuse, but the step-daughter indicated that she chose not to say anything at the prior time because she wanted to keep her family intact, such that the failure to present evidence on that issue was also a trial strategy by counsel. Lewis v. State, 275 Ga. App. 41, 619 S.E.2d 699 (2005). Mere offer of testimony rejected by judge. — When in a criminal case the accused introduces no testimony, defense counsel is entitled to open and conclude the argument to the jury. This rule is not varied by reason of the defendant’s mere offer of testimony which is rejected by the court. Haywood v. State, 14 Ga. App. 114, 80 S.E. 213 (1913). Effect of making statement. — Making of a statement by the defendant, when the defendant introduces no other evidence, entitles the defendant to the opening and concluding arguments. Hart v. State, 88 Ga. App. 334, 76 S.E.2d 561 (1953). 875 Opening and Closing by Defendant (Cont’d) Making of a statement by the defendant, when the defendant introduces no other evidence, entitles the defendant to conclude the argument in the case. Kelly v. State, 149 Ga. App. 388, 254 S.E.2d 737 (1979). For illustration of what constitutes an introduction of evidence, see Freeney v. State, 129 Ga. 759, 59 S.E. 788 (1907). Relationship between introduction of evidence and opening and closing arguments. — Criminal defendant has no burden of proof and no obligation to introduce evidence, and the fact that the defendant has a right to introduce evidence does not allow the defendant both to introduce evidence and to claim a right to open and conclude closing argument; and the particular reason the defendant chooses to invoke the defendant’s right to introduce evidence, including the necessity of rebuttal, does not control whether the defendant may open and conclude argument under O.C.G.A. § 17-8-71. Howard v. State, 204 Ga. App. 743, 420 S.E.2d 594 (1992). Defendant who gives evidence cannot open and conclude argument to jury. — Defendant who, on the trial of a criminal charge against the defendant, introduces in the defendant’s defense either oral or documentary evidence has no right to open and conclude the argument before the jury. Hargrove v. State, 117 Ga. 706, 45 S.E. 58 (1903). In a trial for sodomy and cruelty to children, when, during cross-examination of the defendant’s older daughter, counsel marked the daughter’s previous sworn statement as an exhibit, and the daughter was questioned about the sworn statement and read excerpts from the statement to the jury, the defendant clearly offered evidence for impeachment purposes and the trial court admitted the evidence for that purpose. Because the defendant introduced evidence into the trial, the trial court properly ruled that the state was entitled to the opening and concluding arguments. Warnock v. State, 195 Ga. App. 537, 394 S.E.2d 382 (1990). 17-8-71 Defendant who displayed a photograph of the alleged crime scene to the jury and gave direct testimony regarding representations in the photograph forfeited the defendant’s right to opening and closing arguments by introducing evidence outside the defendant’s own testimony. Seavers v. State, 208 Ga. App. 711, 431 S.E.2d 717 (1993). Although a tape recording of a statement by the defendant’s coindictee was not formally tendered by the defendant, presentation of the contents of the tape to the jury was the equivalent of a formal tender divesting the defendant of the right to open and close final arguments. Kennebrew v. State, 267 Ga. 400, 480 S.E.2d 1 (1996). Right to open and conclude closing argument is the constitutional right of the state and is not a right of the defendant, but is only a privilege, or a compensation, which is given when a defendant chooses not to introduce evidence. The criminal defendant has no burden of proof and no obligation to introduce evidence, and the fact that the defendant has a right to introduce evidence does not allow a defendant both to introduce evidence and to claim a right to open and conclude closing argument; the particular reason a defendant chooses to invoke the right to introduce evidence, including the necessity of rebuttal, does not control whether a defendant may open and conclude argument under O.C.G.A. § 17-8-71. Tanner v. State, 259 Ga. App. 94, 576 S.E.2d 71 (2003). Because the defendant introduced additional evidence, other than the defendant’s own testimony, no right to open and conclude closing argument existed. Simmons v. State, 281 Ga. 437, 637 S.E.2d 709 (2006). Introduction of prior written inconsistent witness statement did not impact defendant’s right to open and close. — Although a trial court erred in requiring a defendant to introduce a prior inconsistent written statement of a witness into evidence before using the statement to impeach the witness, that error did not cause harm to the defendant by causing the defendant to lose the right to open and conclude the argument to the 876 jury under O.C.G.A. § 17-8-71 because the record showed that the defendant introduced an abundance of other evidence that had the same effect under the statute. Jackson v. State, 292 Ga. App. 312, 665 S.E.2d 20 (2008). Time for defendant to elect this right is at the conclusion of state’s evidence. — Defendant cannot then elect to introduce testimony pertinent and material to the issue, and subsequently, at the end of the entire evidence, withdraw the defendant’s evidence and thus regain the defendant’s right to open and conclude the argument. Daniels v. State, 8 Ga. App. 469, 69 S.E. 588 (1910). See also Freeney v. State, 129 Ga. 759, 59 S.E. 788 (1907). Lack of indication in record that defendant has introduced evidence. — When the record contains no indication whatsoever that documents mentioned by a defendant in the defendant’s statement were introduced in evidence, the defendant is entitled to the opening and concluding argument. Park v. State, 224 Ga. 467, 162 S.E.2d 359, cert. denied, 393 U.S. 980, 89 S. Ct. 449, 21 L. Ed. 2d 441 (1968), commented on in 20 Mercer L. Rev. 318 (1969). Rejection of defense testimony treated as introducing no evidence. — Rule giving the right of opening and closing to the defendant who introduces no evidence (other than the defendant’s own testimony) is not varied by the defendant’s mere offer of testimony when this testimony is rejected by the court. Hubbard v. State, 167 Ga. App. 32, 305 S.E.2d 849 (1983). Failure of the defendant to introduce any evidence does not preclude the state from arguing to the jury, but merely grants to the defendant’s counsel the right of opening and closing after the testimony on the part of the state is closed. Brooks v. State, 63 Ga. App. 575, 11 S.E.2d 688 (1940). Opening and closing by admitting crime and seeking to prove justification. — If the defendant has introduced evidence on the defendant’s own behalf, the fact that the defendant may admit the crime for which the defendant is indicted and seek to prove justification does not entitle the defendant to open and conclude 17-8-71 the argument. Cady v. State, 198 Ga. 99, 31 S.E.2d 38, appeal dismissed and cert. denied, 323 U.S. 676, 65 S. Ct. 190, 89 L. Ed. 549 (1944). Offer to prove justification of homicide. — On a trial for murder, the defendant is not entitled to open and conclude by admitting the homicide and offering to prove the defendant’s justification. Mize v. State, 135 Ga. 291, 69 S.E. 173 (1910). Defendant recalls prosecution witness to stand. — Defendant in a criminal case who, after the testimony of a witness for the prosecution has been concluded, and the witness retired from the stand, calls and examines the witness, is not entitled to open and conclude the argument unless, for some reason addressed to the discretion of the court, the defendant has been granted permission to ask further questions in order to complete the cross-examination of the witness. Dunn v. State, 18 Ga. App. 95, 89 S.E. 170 (1916). Cross-examination of witnesses. — Defendant whose only evidence was the defendant’s own testimony would not have given up the defendant’s right to open and to conclude closing argument by subjecting a witness to further cross-examination since mere crossexamination of a witness does not constitute ‘‘introduction of evidence’’ under O.C.G.A. § 17-8-71. Wilson v. State, 227 Ga. App. 59, 488 S.E.2d 121 (1997). When the defendant, in a crossexamination of state witnesses, asked the witnesses to read highlighted portions of arrest reports which had been marked as the defendant’s exhibits, portions of these documents were presented to the jury, and this amounted to the equivalent of a formal tender of evidence, divesting the defendant of the right to open and close final arguments. Aldridge v. State, 237 Ga. App. 209, 515 S.E.2d 397 (1999). Defendant who examines the witness called by another defendant loses the right to open and close the closing arguments. — When two are tried jointly, and a witness introduced by one is also examined by the other, both should be considered as having introduced evidence, and the state will be entitled to conclude. Lackey v. State, 246 Ga. 331, 271 S.E.2d 478 (1980). 877 Opening and Closing by Defendant (Cont’d) If one defendant in criminal case introduces evidence in trial of codefendants, the right to make closing argument is lost to all defendants. McDuffie v. Jones, 248 Ga. 544, 283 S.E.2d 601 (1981), overruled on other grounds, West v. Waters, 272 Ga. 591, 533 S.E.2d 88 (2000); Rogers v. State, 205 Ga. App. 739, 423 S.E.2d 435 (1992); Sullivan v. State, 213 Ga. App. 308, 444 S.E.2d 392 (1994). If a codefendant called a witness who had before testified in behalf of the state and did not invoke any ruling from the court to permit the codefendant to further cross examine the witness after the state had closed, it was proper to conclude that the codefendant called the witness as the codefendant’s own and, thus, the defendant was not entitled to make the opening and concluding argument to the jury. Sullivan v. State, 213 Ga. App. 308, 444 S.E.2d 392 (1994). If one defendant offers evidence in the trial of the codefendants, the right to make the closing argument is lost to all defendants, even those introducing no evidence. Williams v. State, 236 Ga. App. 351, 511 S.E.2d 910 (1999). If the codefendant in a trial attempted impeachment of the coindictee during cross-examination by tendering into evidence the entire written statement of that witness, this amounted to the introduction of substantive evidence, and the state thereby retained the right to conclude. Williams v. State, 236 Ga. App. 351, 511 S.E.2d 910 (1999). Trial court did not err by refusing to allow the defendant to open and close final arguments as the defendant did not timely and properly object to the refusal and, in any event, was not entitled to open and close since the codefendants of the defendant introduced some evidence and, by doing so, divested the defendant of the right to open and close. McFarlin v. State, 259 Ga. App. 838, 578 S.E.2d 546 (2003). Loss of right to open and close not grounds for severance. — Loss of the right to open and close arguments under O.C.G.A. § 17-8-71 because another defendant presented evidence was held not 17-8-71 to be grounds for severance under O.C.G.A. § 17-8-4. Robinson v. State, 164 Ga. App. 652, 297 S.E.2d 751 (1982). Since codefendants were represented by separate counsel and neither presented any evidence, each defense counsel had the right to open and conclude the closing argument and the trial court erred in only allowing one counsel to open and the other to conclude the closing argument. Givens v. State, 211 Ga. App. 290, 439 S.E.2d 22 (1993), rev’d on other grounds, 264 Ga. 522, 448 S.E.2d 687 (1994). Defendant may conclude argument in presentence death penalty hearing. — After the evidence is closed on both sides in a presentence hearing in which the death penalty is being considered, the defendant may conclude the argument to the jury even if the defendant presents evidence during the hearing. Beck v. State, 254 Ga. 51, 326 S.E.2d 465, cert. denied, 474 U.S. 872, 106 S. Ct. 195, 88 L. Ed. 2d 164 (1985). Informing jury as to why defendant has opening and closing arguments. — It is not error for the court to inform the jury that ‘‘the defendant would have opening and closing arguments because no evidence had been put up’’ because this is a correct statement of the law. If the defendant thinks it prejudicial, a proper objection should be made to preserve the issue for review on appeal. Shavers v. State, 244 Ga. 491, 260 S.E.2d 883 (1979). Waiver of Right to Open and Close Right to opening statement may be waived. — After the close of the evidence, the trial court, in the court’s discretion, may permit the party having the opening and concluding argument to waive the opening statement and make a full presentation regarding the legal and factual facets of the party’s case to the jury following the final argument of the adverse party. Bradham v. State, 243 Ga. 638, 256 S.E.2d 331 (1979). Defendant forfeited the defendant’s right to opening and closing arguments after the defendant successfully moved without objection to admit a police report into evidence and crossexamined an officer on the report’s contents. Eppinger v. 878 State, 231 Ga. App. 614, 500 S.E.2d 383 (1998). Waiver does not deny any rights under O.C.G.A. § 17-8-71. — Right to open and conclude the argument, especially in a criminal case, is a substantial and valuable right, but like every other right, even the right of trial itself, it may be waived. Garrett v. State, 21 Ga. App. 801, 95 S.E. 301 (1918). Waiver of a party’s opening argument, which results in limiting of the closing argument to rebuttal in response to the opposing party’s closing argument, does not deny the party any right under this section. Williamson v. State, 142 Ga. App. 177, 235 S.E.2d 643 (1977). Right to concluding argument under O.C.G.A. § 17-8-71 may be waived by failure to object. McDuffie v. Jones, 248 Ga. 544, 283 S.E.2d 601 (1981), overruled on other grounds, West v. Waters, 272 Ga. 591, 533 S.E.2d 88 (2000). Cross-examination of codefendant. — Trial court erred in forcing a defendant to choose between cross-examining a codefendant and opening and concluding the closing argument as the crossexamination of a witness does not constitute the introduction of evidence under O.C.G.A. § 17-8-71. Dasher v. State, 233 Ga. App. 833, 505 S.E.2d 792 (1998). Use of witnesses’ statements during cross-examination. — Record supported the trial court’s judgment that defendant’s counsel introduced new evidence when counsel used a statement which a witness gave to police to cross-examine the witness, and because counsel introduced new evidence on behalf of the defendant, the trial court did not err when the trial court denied the defendant’s request to give the final closing argument to the jury pursuant to O.C.G.A. § 17-8-71. Thompson v. State, 265 Ga. App. 696, 595 S.E.2d 377 (2004). Improper use of evidence results in forfeiture of right. — Court correctly concluded that the defendant forfeited the defendant’s right to open and close by the improper use of evidence; in any case, the issue was unpreserved as was the contention that the trial attorney was ineffective. Allen v. State, 263 Ga. App. 350, 587 S.E.2d 833 (2003). 17-8-71 Waiver by state. — O.C.G.A. § 17-8-71 did not require the state to give an initial closing argument; thus, the trial court permitted the state to waive this argument. Petty v. State, 283 Ga. 268, 658 S.E.2d 599 (2008). Waiver by defendant’s counsel. — As counsel’s decision to call a defense witness, thus forfeiting the right to make the final closing argument under O.C.G.A. § 17-8-71, was not patently unreasonable, and as the defendant provided no basis for concluding that the result of the trial would have been different if the defendant had the last closing argument, the defendant did not show counsel was ineffective. McKenzie v. State, 284 Ga. 342, 667 S.E.2d 43 (2008). Failure to impeach witnesses did not amount to ineffective assistance of counsel. — With regard to the defendant’s convictions for malice murder and other crimes, the defendant failed to show that defense counsel was ineffective for failing to impeach four witnesses’ testimony by the witnesses’ convictions as such impeachment would have caused defense counsel to lose the right to make the final closing argument under O.C.G.A. § 17-8-71. Adams v.