Miller v

State, 281 Ga. App. 354, 636 S.E.2d 60 (2006), cert. denied, No. S07C0087, 2007 Ga. LEXIS 106 (Ga. 2007). Presumption of harm not rebutted. — Although defense counsel was not completely cut off from making a closing argument on the defendant’s behalf, the trial court erred in not allowing defense counsel to use the full amount of time that statutory law permitted counsel as the evidence in the case of the shooting death of the defendant’s business partner, although strong, was not so overwhelming as to render any other version of events to be completely without belief and, thus, the presumption of harm that arose from shortening defense counsel’s closing argument was not rebutted, and required that the defendant receive a new trial. Laster v. State, 276 Ga. 645, 581 S.E.2d 522 (2003). Reduced time harmless error. — At a trial in which a trial court limited closing arguments in defendant’s capital murder trial to one hour per side, and the defendant’s counsel acquiesced in the trial court’s ruling, the issue of whether the defendant was denied the right to a longer closing argument under O.C.G.A. § 17-8-73 was waived on appeal; nonetheless, any error was harmless, as the defendant’s right was not denied completely, and the evidence of guilt was so overwhelming that any other version of events was not credible. Agee v. State, 279 Ga. 774, 621 S.E.2d 434 (2005). Counsel’s plan to deliver 30-minute closing. — Although the trial court erred in limiting closing arguments to one hour’s duration, the defendant’s right to make a two-hour closing was not abridged by the trial court’s misstatement of O.C.G.A. § 17-8-73, since counsel had informed the trial court of counsel’s plan to deliver a 30-minute closing argument and since counsel was not interrupted during the delivery of closing argument by the 883 trial court. Stovall v. State, 287 Ga. 415, 696 S.E.2d 633 (2010). Trial counsel’s acquiescence in limited time waived error. — Although the defendant charged with murder was entitled to two hours in the defendant’s closing argument, the defendant’s trial counsel acquiesced at trial to the trial court’s ruling that closing arguments would be limited to one hour per side, waiving the issue on appeal; therefore, the defendant’s appellate counsel was not ineffective for failing to raise this alleged error. Seabolt v. Norris, 298 Ga. 583, 783 S.E.2d 913 (2016). Brief extension of time not abuse of discretion. — Because a trial court had discretion to grant a short period of additional time for a party to reach the logical conclusion of the party’s closing argument, even without a pre-argument request for more time, no abuse of discretion resulted from the trial court’s decision to permit a brief extension to the state. Dorsey v. State, 285 Ga. App. 510, 646 S.E.2d 713 (2007). Using less time than allotted not ineffective assistance. — Existence of the statutory right to make a two-hour closing argument in a murder case does not mean that an attorney acts incompetently whenever the attorney decides to use less than the whole two hours. Brown v. State, 288 Ga. 902, 708 S.E.2d 294 (2011). 17-8-74 Ineffective assistance. — While the defendant met the burden of showing trial counsel’s deficient performance based on a misimpression that counsel was entitled to only one hour to make a closing argument, instead of two as permitted by O.C.G.A. § 17-8-73, the defendant failed to show that but for the error, trial counsel could have convinced the jury that the defendant was innocent of the crimes charged. Hardeman v. State, 281 Ga. 220, 635 S.E.2d 698 (2006). As to the defendant’s habeas claim that the defendant’s trial counsel was ineffective for failing to use counsel’s entire two hours for closing argument as provided in O.C.G.A. § 17-8-73, because kidnapping with bodily injury was a capital offense, but counsel believed counsel only had 30 minutes, there was no showing that trial counsel could have convinced the jury that the client was innocent of the crimes charged. Wilkerson v. Hart, 294 Ga. 605, 755 S.E.2d 192 (2014). Forfeiture of right to appeal insufficient time. — Although the trial court erred by limiting the defendant’s closing arguments in a felony murder trial to one hour, the defendant forfeited the right to raise the issue on appeal by faling to object or ask for more time when the court said time was running out. Lay v. State, 305 Ga. 715, 827 S.E.2d 671 (2019). Cited in Carter v. State, 263 Ga. 401, 435 S.E.2d 42 (1993).