Whatley v

State, 165 Ga. App. 13, 299 S.E.2d 87 (1983). Trial court did not err by allowing the state to make improper and prejudicial comments during the defendant’s trial on drug-related offenses as defense counsel only objected to the prosecutor’s statement recounting defendant’s previous conviction and did not object to the two questions posed by the prosecutor, which questions implied that the prosecutor personally believed that the defendant was guilty of the charged offense. Thus, the issue of whether those two questions constituted improper remarks was waived on appeal. Heard v. State, 291 Ga. App. 550, 662 S.E.2d 310 (2008). Because the defendant either failed to object or had an objection sustained as to questions or statements made by the prosecutor, there was no ruling by the trial court that was adverse to the defendant for the court of appeals to review; the court of appeals will not reverse a conviction based on alleged prosecutorial misconduct when the defendant did not take proper exception or when the defendant received a favorable ruling on any objection or requested corrective action. Willis v. State, 309 Ga. App. 414, 710 S.E.2d 616 (2011), cert. denied, No. S11C1356, 2012 Ga. LEXIS 70 (Ga. 2012). Defendant’s argument that the trial court erred in finding that the court did not have a sua sponte duty to intervene 17-8-75 and prevent the prosecutor’s statement regarding the codefendants’ pleas of guilty was waived because no objection was made during trial. Tucker v. State, 313 Ga. App. 537, 722 S.E.2d 139 (2012). Defendant waived the argument that the trial court erred in allowing the prosecutor to state, during closing arguments, that the defendant had made an obscene gesture to someone in the courtroom during the course of the trial because there was no contemporaneous objection to the argument. Jeffers v. State, 290 Ga. 311, 721 S.E.2d 86 (2012). Necessary allegations in motion for new trial. — Motion for a new trial based upon a remark, alleged to be improper and prejudicial to the rights of the defendant, which was made by the solicitor (now district attorney) in the solicitor’s argument to the jury should allege that the movant made a motion for a mistrial before the verdict was rendered, or that the court refused to grant a mistrial, or that it is probable that the injury was not eradicated by the instructions to the jury to disregard the remarks. Meadow v. State, 45 Ga. App. 240, 163 S.E. 915 (1932). Special ground for new trial complaining of an alleged improper and prejudicial statement made by the solicitor (now district attorney) during the trial and in the presence of the jury which fails to show or allege that a motion to declare a mistrial was made, or that any objection whatsoever to the statement was made to the court at the time, or subsequently, during the trial fails to show any error of commission or omission by the court. Dukes v. State, 57 Ga. App. 835, 197 S.E. 69 (1938). Improper remarks to be considered on appeal must be properly excepted to. — Alleged improper statements made by the solicitor general (now district attorney) in the presence of the jury, and testimony of a witness, neither of which is objected to upon the trial, will not be considered by the Supreme Court. Aycock v. State, 188 Ga. 551, 4 S.E.2d 221 (1939). To enforce by review the performance of the duty imposed by this section upon the trial judge, the law in the form of a rule of procedure requiring an objection during the trial must be observed. Morris v. State, 200 Ga. 471, 37 S.E.2d 345 (1946). 903 Requirement that Objection or Motion Be Made (Cont’d) Contentions may not be raised for the first time on appeal. Mayfield v. State, 153 Ga. App. 459, 265 S.E.2d 366 (1980). Defendant failed to object to any statements made by the prosecution that allegedly commented on matters not admitted into evidence in the defendant’s child molestation and sexual battery trial; therefore, the defendant waived the right to argue about those statements pursuant to O.C.G.A. § 17-8-75 on appeal. Carson v. State, 259 Ga. App. 21, 576 S.E.2d 12 (2002), overruled on other grounds, Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015). Because the overwhelming evidence presented against the defendant supported the convictions, and the defendant failed to assert a timely and contemporaneous objection to the prosecutor’s opening statement comments, the trial court did not err in denying the defendant’s motions for a new trial and a mistrial. Brooks v. State, 284 Ga. App. 762, 644 S.E.2d 891 (2007). Improper remarks must be subject of motion for reprimand. — Appellate court will not reverse the judgment of the trial court overruling a motion for mistrial on the ground that the court in overruling the motion failed to reprimand the solicitor (now district attorney) for an improper question since no request was made that the solicitor be reprimanded and the objectionable query was never answered by the witness. Nelson v. State, 92 Ga. App. 746, 90 S.E.2d 91 (1955). Improper remarks are not ground for reversal if court’s attention not called thereto. — If the solicitor (now district attorney) in the course of argument uses certain language which is calculated to excite prejudice against the defendant, but it does not appear that the attention of the court was called thereto or any ruling was invoked on the subject, either by way of reprimanding counsel, or of instructing the jury, or of declaring a mistrial, such impropriety in argument will not furnish a ground for a reversal by the Supreme Court. Benton v. State, 185 17-8-75 Ga. 254, 194 S.E. 166 (1937). No duty to reprimand counsel absent motion. — When the defendant’s objection to a question by the prosecution was sustained but there was no motion for mistrial or rebuke of counsel, it was not the court’s duty to reprimand counsel without such a motion. Phillips v. State, 230 Ga. 444, 197 S.E.2d 720 (1973). Trial court was not required sua sponte to prevent the state from making improper remarks during the state’s closing argument because the defendant did not object to the closing argument; O.C.G.A. § 17-8-75 only requires the judge to act when counsel makes a timely objection. Tidwell v. State, 306 Ga. App. 307, 701 S.E.2d 920 (2010), overruled on other grounds, White v. State, 305 Ga. 111, 823 S.E.2d 794, 2019 Ga. LEXIS 66 (2019). Failure to object to reference to confession which is not in evidence. — See Mims v. State, 188 Ga. 702, 4 S.E.2d 831 (1939). Error in failing to do more than caution prosecutor deemed waived. — Because the defendant did not move for a mistrial or curative instructions at any point in the trial, the contention that the trial court erred in failing to do more than caution the assistant district attorney to comply with the court’s ruling was deemed waived. Tennyson v. State, 282 Ga. 92, 646 S.E.2d 219 (2007). Defendant must renew objection or motion for mistrial if court’s action unsatisfactory to request further jury instructions. — If the defendant’s counsel deems the instruction or admonition to the jury, plus the reprimand or the rebuke of offending counsel, inadequate to remove the harmful effect, it is incumbent on the defendant to request further instructions or renew the defendant’s motion for a mistrial in order to preserve a basis for appeal. Pitts v. State, 141 Ga. App. 845, 234 S.E.2d 682 (1977). If the defendant is not satisfied with the court’s action in response to the improper question or remark of prosecuting counsel, it is incumbent upon the defendant to renew an objection and motion for mistrial. The defendant’s failure to do so precludes complaint on appeal. Delaney v. State, 154 Ga. App. 772, 270 S.E.2d 48 904 (1980); Barksdale v. State, 161 Ga. App. 155, 291 S.E.2d 18 (1982). Failure to renew objections and motion for mistrial after corrective instructions makes the denial of the motion for mistrial not subject to review. Whitaker v. State, 246 Ga. 163, 269 S.E.2d 436 (1980). Rebuke of Counsel, Instruction of Jury, or Grant of Motion by Court Duty of judge to prevent improper argument generally. — It is only when prejudicial matters which are not in evidence are stated in the argument that it becomes the duty of the court to interpose and prevent, or to hear objections and rebuke counsel, or to instruct the jury, or to declare a mistrial. Hicks v. State, 196 Ga. 671, 27 S.E.2d 307 (1943). This section forbids improper arguments and imposes a duty upon the trial judge to interpose and prevent such arguments. Morris v. State, 200 Ga. 471, 37 S.E.2d 345 (1946). It is the duty of the court, with or without objection, to interpose, prevent, and rebuke improper argument, and to endeavor by proper instructions to remove from the minds of the jury improper impressions made by unfair argument. Josey v. State, 89 Ga. App. 215, 79 S.E.2d 64 (1953). This section places an affirmative duty upon the trial judge to prevent on the judge’s own motion argument by counsel calculated to invoke prejudice against the adverse party. Brown v. State, 110 Ga. App. 401, 138 S.E.2d 741 (1964). Trial court has a duty, even without a motion therefor, to see that the trial is fairly conducted, and when improper remarks are made in the presence of the jury, it is the absolute duty of the judge to intervene and stop it and by all needful instructions remove the improper impressions which the state’s counsel has sought to create in the minds of the jurors. Winget v. State, 138 Ga. App. 433, 226 S.E.2d 608, overruled on other grounds, Quick v. State, 139 Ga. App. 440, 228 S.E.2d 592 (1976). O.C.G.A. § 17-8-75 requires that when statements of prejudicial matters not in evidence are made the court must inter- 17-8-75 pose, and the court shall also rebuke counsel and give such instructions as will remove the improper impression, or, if necessary, grant a mistrial if the plaintiff ’s attorney is the offender. Morris v. State, 160 Ga. App. 505, 287 S.E.2d 405 (1981). If counsel makes improper remarks, the court has a duty to rebuke counsel so as to remove the improper impression or give adequate instructions to the jury so as to remove the prejudicial effect of the remark. However, the remark must both have been heard by the jury and not go to matters in evidence. Jordan v. State, 166 Ga. App. 417, 304 S.E.2d 522 (1983). Questions and responses alluding to prior arrests impermissibly placed a defendant’s character in issue, and since the trial court failed to take any corrective action in fulfillment of the court’s duty defendant was denied a fair trial. Richardson v. State, 199 Ga. App. 10, 403 S.E.2d 877 (1991). Trial court erred by failing to fulfill the court’s duty under O.C.G.A. § 17-8-75 to rebuke the prosecutor and instruct the jury in order to remove any improper impression that could have been left in the jury’s’ minds, and the court of appeals erred in concluding that the defendant waived review of the defendant’s claim that the trial court erred by failing to give a curative instruction after the defendant objected to the state’s closing argument by failing to obtain a ruling on the defendant’s request for a curative instruction; the plain language of O.C.G.A. § 17-8-75 speaks in terms of the trial court’s duty to give a curative instruction when a proper objection is made to the state’s introduction of improper argument on matters that are not in evidence, and a mere objection is sufficient to preserve the issue for appellate review. O’Neal v. State, 288 Ga. 219, 702 S.E.2d 288 (2010). Statement by counsel that counsel expects to prove patently inadmissible matters. — While technically this section applies to argument by counsel on matters not in evidence, the same harm results if counsel makes the statement that counsel expects to prove patently inadmissible matters before the introduction of evidence, and it is as much the duty 905 Rebuke of Counsel, Instruction of Jury, or Grant of Motion by Court (Cont’d) of the court upon objection made to rebuke counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds, or to grant a motion for mistrial. Pilcher v. State, 91 Ga. App. 428, 85 S.E.2d 618 (1955). Improper comment on irrelevant evidence. — Since the defendant was accused of child molestation under O.C.G.A. § 16-6-4, the trial court did not err under O.C.G.A. § 17-8-75 in admonishing the defense counsel not to suggest that the defendant’s penetration of the victim and the resulting injury had been insignificant; the evidence was irrelevant as § 16-6-4 did not distinguish between degrees of vaginal injury. Pickett v. State, 277 Ga. App. 316, 626 S.E.2d 508 (2006). Duty of court upon motion for mistrial being made. — If unwarranted and prejudicial remarks not referring to any matter in evidence in the case are made, and a motion for mistrial is based on such remarks, the court has the duty of eradicating the effect of the remarks from the jury’s mind by ruling the remarks out, reprimanding counsel, and instructing the jury to disregard the remarks. Ordinarily, this cures the error. Emerson v. State, 90 Ga. App. 323, 82 S.E.2d 882 (1954). No duty after objection sustained. — After an objection to an improper question or statement is sustained, the court has no duty to rebuke counsel or give curative instructions absent a further request from the complaining party. Garner v. State, 199 Ga. App. 468, 405 S.E.2d 299 (1991). Defendant was not entitled to curative instructions or a mistrial by virtue of the prosecution’s question of the defendant as to whether his ex-wife was ‘‘ex-wife number five or six’’ since the defendant’s objection to the question was sustained and the defendant made no further motion. Woodham v. State, 263 Ga. 580, 439 S.E.2d 471 (1993). Merely ‘‘ruling out’’ a statement is insufficient. Collins Park & B.R.R. v. Ware, 112 Ga. 663, 37 S.E. 975 (1901); 17-8-75 Holmes v. State, 21 Ga. App. 150, 94 S.E. 69 (1917). Because the court did not hear a remark by the district attorney and did not believe that the jury had done so, the court did not abuse the court’s discretion in denying the motion for mistrial. Jordan v. State, 166 Ga. App. 417, 304 S.E.2d 522 (1983). Limitations on judge’s duty. — When prejudicial matters not in evidence are made in the hearing of the jury, on objection the court shall rebuke counsel or, among other measures, order a mistrial if the prosecuting attorney is the offender. However, it is not within the court’s discretion to dismiss the indictment, nor is it the court’s duty to interpret the stated objection and speculate that the defendant intended to move for a mistrial. Redmond v. State, 252 Ga. 142, 312 S.E.2d 315 (1984). No duty to rebuke prosecutor. — Even assuming that the prosecutor’s argument that one of the jailhouse informants might have appeared nervous based on the saying that ‘‘snitches get stitches’’ was improper under O.C.G.A. § 17-8-75 because the trial court sustained the defendant’s objection, and the defendant did not request a rebuke or any other corrective action after the defendant’s objection was sustained, the trial court had no duty to rebuke the prosecuting attorney. Cheley v. State, 299 Ga. 88, 786 S.E.2d 642 (2016). Provision for rebuke of counsel and instructing jury is mandatory. — Provision that the court shall rebuke counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from the jury’s minds is mandatory. Ingram v. State, 97 Ga. App. 468, 103 S.E.2d 666 (1958). Court’s discretion. — Extent of a rebuke and instruction is within the discretion of the court. Benefield v. State, 140 Ga. App. 727, 232 S.E.2d 89 (1976); Brooks v. State, 169 Ga. App. 543, 314 S.E.2d 115 (1984); O’Kelley v. State, 175 Ga. App. 503, 333 S.E.2d 838 (1985). Whether to grant a mistrial after taking precautionary measures is within the court’s discretion. Green v. State, 242 Ga. 261, 249 S.E.2d 1 (1978), rev’d on other 906 grounds, 442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738, vacated in part on other grounds, 244 Ga. 27, 257 S.E.2d 543 (1979). Extent of a rebuke and instructions is within the discretion of the court, and when the improper remark is cured by timely corrective action calculated to preserve the defendant’s right to a fair trial, then the court does not abuse the court’s discretion in refusing to grant a mistrial. High v. State, 153 Ga. App. 729, 266 S.E.2d 364 (1980). Abuse of discretion not shown. — Trial court employed language appropriate to the situation and evidenced no abuse of discretion after trial counsel made a disparaging remark about the assistant district attorney. Cammon v. State, 269 Ga. 470, 500 S.E.2d 329 (1998). Trial court did not abuse the court’s discretion by not declaring a mistrial as the court issued a curative instruction after the prosecutor made improper remarks during closing argument by twice referring to the defendant’s possession of marijuana as a misdemeanor, rather than the charged offense of possession of marijuana less than an ounce. Dix v. State, 307 Ga. App. 684, 705 S.E.2d 903 (2011). In the defendants’ trial for robbery and murder, even if the prosecutor’s question to a bereaved witness as to whether the witness had observed the defendants laughing while the jury was not present was improper, the trial court fully complied with O.C.G.A. § 17-8-75 and did not abuse the court’s discretion in refusing to grant a mistrial. Dixon v. State, 302 Ga. 691, 808 S.E.2d 696 (2017). Even if defendant’s character is placed in issue. — Ordinarily, when illegal testimony is placed in evidence, it is not an abuse of discretion to refuse to grant a mistrial when sufficient corrective instructions are given in ruling out the testimony. This is true even when the illegal testimony has the effect of placing the defendant’s character in issue, especially if the testimony is volunteered by the witness and not directly elicited by the solicitor (now district attorney). Brown v. State, 118 Ga. App. 617, 165 S.E.2d 185 (1968). Court must be presumed to be listening to argument. — It must be pre- 17-8-75 sumed that the court in performing the court’s duty to interpose and prevent prejudicial argument is listening to the argument and has heard the remarks. Brown v. State, 110 Ga. App. 401, 138 S.E.2d 741 (1964). Overruling motion for mistrial overruled without hearing argument complained of. — When a motion for mistrial is made based on improper argument reasonably calculated to appeal to or evoke racial prejudice, and the trial court has not heard the argument, but overrules the motion without inquiring to ascertain what the improper argument was, and therefore without knowing the facts upon which the motion was based and without determining whether corrective action is needed, one fails to perform the duty imposed and exercise the discretion contemplated by the statute. Brown v. State, 110 Ga. App. 401, 138 S.E.2d 741 (1964). What action by the court is sufficient depends on circumstances of the case. — In some cases of misconduct by a solicitor (now district attorney) the injurious effect may be averted by appropriate action and instructions from the court, but what would be sufficient in any case would depend on the character of the misconduct, the nature of the case, and the action or instructions from the court relied on to counteract the injurious effect of the misconduct. These may differ in each case. Brown v. State, 118 Ga. App. 617, 165 S.E.2d 185 (1968). Motion for mistrial raises question of what less drastic action would be sufficient. — Motion for mistrial raises the question of what ameliorative action less than summarily cutting off the trial is obligatory on the judge under the circumstances. Gore v. State, 110 Ga. App. 344, 138 S.E.2d 471 (1964). Cautionary instructions are usually sufficient. — Usually, cautionary instructions to the jury by the judge, when matters of procedure must be left to the judge’s sound discretion, will suffice to cure irregularity and remove prejudice. Grayhouse v. State, 65 Ga. App. 853, 16 S.E.2d 787 (1941). Curative instruction may in effect amount to rebuke of counsel. — If the instruction by the court to the jury to 907 Rebuke of Counsel, Instruction of Jury, or Grant of Motion by Court (Cont’d) disregard the remarks is full, the instruction in effect amounts to a rebuke of counsel. London v. State, 142 Ga. App. 426, 236 S.E.2d 158 (1977); Crawford v. State, 203 Ga. App. 215, 416 S.E.2d 820 (1992). Improper remark of prosecutor not cured by instruction. — General curative instruction given by the trial court after the prosecutor made an improper statement about the defendant’s link to an earlier gang-related shooting during closing arguments was an inadequate curative measure and did not serve to remove the improper impression from the jurors’ minds as required by O.C.G.A. § 17-8-75. Jones v. State, 292 Ga. 656, 740 S.E.2d 590 (2013). Prejudice may be such that neither instruction nor rebuke will suffice. — There are instances when the character of the prejudice, precipitated by the injection into the trial of extrinsic matters with no evidentiary basis, is such that cautionary instructions to the jury and rebuke of counsel, either or both, fail to remove the harm done, when, in the interest of fair and impartial trials, mistrials must result. Grayhouse v. State, 65 Ga. App. 853, 16 S.E.2d 787 (1941). Instruction to the jury to disregard improper remarks amounts to a rebuke of counsel. Martin v. State, 196 Ga. App. 145, 395 S.E.2d 391 (1990). Objection without motion not grounds for mistrial. — Sustained objection to an improper question, answer, or remark by opposing counsel without a motion for mistrial will not constitute grounds for reversal, especially if the improper matter has been stricken with curative instructions. Williams v. State, 151 Ga. App. 765, 261 S.E.2d 487 (1979). Certainty that no injury to the accused would result. — It is not erroneous to refuse to grant a mistrial on account of misconduct of the solicitor (now district attorney) if it is certain that no injury could have resulted therefrom to the accused. Brown v. State, 118 Ga. App. 617, 165 S.E.2d 185 (1968). 17-8-75 Grant of mistrial may be the only effective remedy in some cases. — Mistrial should be declared if the remarks are injurious to the defendant, and cannot be cured by instructions. Wallace v. State, 126 Ga. 749, 55 S.E. 1042 (1906); Hunter v. State, 133 Ga. 78, 65 S.E. 154 (1909); Manning v. State, 13 Ga. App. 709, 79 S.E. 905 (1913); Morrow v. State, 18 Ga. App. 12, 88 S.E. 911 (1916). Misconduct of counsel may be such that its effect cannot be overcome, and misconduct so prejudicial that the verdict of the jury must have been influenced thereby, and is not cured by an admonition to the jury, or by sustaining an objection thereto, or by rebuke or admonition of counsel, or by withdrawal by counsel. In such cases, the court should grant a mistrial. Emerson v. State, 90 Ga. App. 323, 82 S.E.2d 882 (1954). If judge takes curative action, no new trial or mistrial granted unless such action fails. — It is improper for counsel to remark upon the force or effect of evidence while it is being submitted to the jury, but when the remark is not prejudicial or inflammatory, is withdrawn by counsel, and the court gives proper instructions to the jury, a mistrial is not required. Bryant v. State, 197 Ga. 641, 30 S.E.2d 259 (1944). If the trial judge acts immediately, and in the exercise of the judge’s discretion takes such action as in the judge’s judgment prevents harm to the accused as a result of improper statements by the prosecution, a new trial will not be granted unless it is clear that such action failed to eliminate from the consideration of the jury such improper statements. Moore v. State, 228 Ga. 662, 187 S.E.2d 277 (1972); Pullen v. State, 146 Ga. App. 665, 247 S.E.2d 128 (1978); Vernon v. State, 152 Ga. App. 616, 263 S.E.2d 503 (1979). In passing on a motion for mistrial because of an improper statement of the prosecutor, the trial judge may take such action as in the judge’s judgment will prevent harm to the defendant, and a new trial will not be granted unless it is clear that such action failed to eliminate the statement from consideration by the jury. Hoerner v. State, 246 Ga. 374, 271 S.E.2d 458 (1980). 908 After the trial court rebuked offending counsel and instructed the jury appropriately, a new trial will not be granted unless it is clear that the court’s action failed to eliminate from the consideration of the jury such improper remark. White v. State, 159 Ga. App. 545, 284 S.E.2d 76 (1981); Jordan v. State, 159 Ga. App. 716, 285 S.E.2d 71 (1981). Although the prosecutor, during closing argument, remarked to the jury that the grand jury had found sufficient evidence to bring the case to trial, the judge’s prompt and corrective measures in admonishing counsel and instructing the jury were sufficient to eliminate the necessity of declaring a mistrial. Stoker v. State, 177 Ga. App. 94, 338 S.E.2d 525 (1985). Trial court did not err by denying the defendant’s motion for mistrial, after the prosecution’s statement possibly left the jury with the false impression that defense counsel’s opening statement was improper, although the trial court gave curative instructions only, an additional statement rebuking the prosecutor was not necessary. Crawford v. State, 203 Ga. App. 215, 416 S.E.2d 820 (1992). Trial court three times instructed the jury to disregard the prosecutor’s remarks regarding money in the defendant’s prosecution for drug offenses. Since an instruction to the jury to disregard improper remarks amounts to a rebuke of counsel and in light of the curative instruction and the inadvertent nature of the prosecutor’s remark, there was no abuse of discretion in the trial court’s denial of the motion for mistrial. Myers v. State, 268 Ga. App. 607, 602 S.E.2d 327 (2004). Trial court properly issued a curative instruction after an inadvertent reference to the defendant’s status on bond, avoiding a mistrial as to this issue; the defendant’s request for a curative instruction was granted after a reference to the ‘‘drug problem’’ the defendant and the defendant’s ex-spouse shared waived any error in the trial court’s failure to grant a mistrial as to this issue. Hill v. State, 285 Ga. App. 503, 646 S.E.2d 718 (2007). Jury must be instructed to remove improper impressions. — When a motion for a mistrial is made, the court may 17-8-75 grant the mistrial or take other corrective measures less than granting of a mistrial if the latter are sufficient for the purpose, but the court should by all needful and proper instruction to the jury endeavor to remove the improper impression from the jury’s minds. Stanley v. State, 94 Ga. App. 737, 96 S.E.2d 195 (1956). Curative instructions are not mandatory under O.C.G.A. § 17-8-75 when a motion for mistrial is denied. Foshee v. State, 256 Ga. 555, 350 S.E.2d 416 (1986). Improper remark of prosecutor cured by instruction. — When the trial court under O.C.G.A. § 17-8-75 instructed the jury to disregard a statement by state’s counsel relative to the fact that some of the witnesses would say the same thing as the witnesses that are called, and the court rebuked state’s counsel for making that statement, even if the remark by the state’s counsel was improper, the error was cured by the trial court’s instruction. Hilburn v. State, 166 Ga. App. 357, 304 S.E.2d 480 (1983). Trial court does not err in denying a mistrial after the prosecuting attorney asks the defendant why the defendant did not bring any witnesses in the courtroom to back up the defendant’s explanation of the criminal episode, when the trial court correctly and fully cures any misimpression that the defendant bears the burden of proving the defendant’s innocence, by instructing the jury that the defendant may or may not bring in witnesses, as the defendant chooses, but regardless of whether the defendant brings in witnesses, the burden is always on the state to prove the guilt of the defendant beyond a reasonable doubt. Brown v. State, 166 Ga. App. 765, 305 S.E.2d 386 (1983). Trial court’s instruction to the jury to disregard remarks amounting to a misstatement of evidence was complete and, in effect, amounted to a rebuke of the prosecuting attorney, and the minimal impact of the statement did not require reversal of a murder conviction. Ward v. State, 252 Ga. 85, 311 S.E.2d 449 (1984). Because the prosecutor’s misstatement regarding blood on the porch was arguably no more than an overstatement (most of the blood had been washed off the 909 Rebuke of Counsel, Instruction of Jury, or Grant of Motion by Court (Cont’d) porch) of the evidence, the mistaken attribution of testimony was insignificant in light of the fact that several witnesses had given similar testimony regarding the defendant’s statements of anger toward the victim, defendant’s mother. The trial court told the jury in preliminary jury instructions and the prosecuting attorney reminded the jury in closing argument that the argument of counsel was not evidence; therefore, it was highly probable that the trial court’s error in failing to sustain the defendant’s objections to improper argument by the prosecution and to perform the jury’s duty under O.C.G.A. § 17-8-75 to instruct the jury regarding improper statements by counsel did not contribute to the verdict; thus, the defendant’s conviction for murder was affirmed. Fincher v. State, 276 Ga. 480, 578 S.E.2d 102 (2003). Denial of a motion for a mistrial was proper given the trial court’s prompt, detailed curative instruction to the jury; it was unlikely that the defendant was prejudiced by the prosecutor’s improper comment on the defendant’s silence. Ford v. State, 274 Ga. App. 695, 617 S.E.2d 262 (2005). In a joint prosecution, a second defendant was not entitled to a mistrial based on the prosecutor’s improper comments during closing argument to the jury as the trial judge was authorized to admonish the prosecutor and instruct the jurors that the prosecutor’s comments were inappropriate, were not proper for their consideration, and were to be disregarded. Jones v. State, 285 Ga. App. 121, 645 S.E.2d 608 (2007). While the trial court did not necessarily rebuke the prosecutor, because the court did give curative instructions informing the jury that a cell phone used in the state’s closing argument was not evidence, the demonstration was not to be considered, and the demonstration was completely irrelevant to the case, the defendant was not entitled to a mistrial as a result; further, the appeals court agreed with the trial judge that the improper 17-8-75 demonstration did not prejudice the defendant because enough other evidence existed for the jury to come to the jury’s conclusion without relying on the improper demonstration. Cook v. State, 287 Ga. App. 81, 650 S.E.2d 757 (2007), cert. denied, No. S07C1874, 2008 Ga. LEXIS 127 (Ga. 2008). Prosecutor’s improper comment on a defendant’s failure to explain the presence of a gun and cash in the defendant’s car immediately following a robbery was cured by the trial court rebuking the prosecutor at length and giving the jury curative instructions. Brown v. State, 307 Ga. App. 797, 706 S.E.2d 170 (2011). Prosecutor’s remark not improper. — In defendant’s trial for sexual assault of a victim who was a stripper, the prosecutor’s statement during closing that the jury could all hypothesize that the defendant didn’t tell the defendant’s family about where the defendant was that night (at a strip club), was simply a proper argument to urge the jury not to discount the victim’s credibility; the statement did not improperly place the defendant’s character in issue, and a mistrial was properly denied. Savage v. State, 264 Ga. App. 709, 592 S.E.2d 188 (2003). Considering the nature of the state’s improper reference, the other evidence in the case, and the trial court’s and counsel’s actions in dealing with the impropriety, the trial court did not abuse the court’s discretion by denying the defendant’s motion for a mistrial; O.C.G.A. § 17-8-75 did not apply because the state did not state prejudicial facts that were not in evidence and did not inject into the case illegal elements but simply made an inadvertent reference to the nature of a hearing at which the victim’s statement differed from the victim’s testimony at trial. Lewis v. State, 317 Ga. App. 218, 735 S.E.2d 1 (2012). Instruction pursuant to O.C.G.A. § 17-8-75 was not required as the state’s references in closing argument were to the psychologist’s forensic findings and the inferences thereto, not to any opinion as to the veracity of the victim. Thompson v. State, 321 Ga. App. 756, 743 S.E.2d 446 (2013). Mistrial may be refused if remark withdrawn and jury instructed. — It 910 is not error to refuse to grant a mistrial on account of the improper remark of the solicitor general (now district attorney) in the solicitor’s argument to the jury, after the solicitor expressly withdraws the remark and the court instructs the jury not to consider the remark. Goodman v. State, 122 Ga. 111, 49 S.E. 922 (1905). Withdrawal of remark and apology may be insufficient. — Mere apology and withdrawal of the improper remarks by counsel, if there is no reprimand by the court, will not be sufficient to prevent a mistrial if it appears that the remarks were such as to prejudice a fair trial. Smith v. State, 118 Ga. App. 464, 164 S.E.2d 238 (1968). Case in which judge’s statement insufficient to remove solicitor’s (now district attorney’s) remarks from consideration. — See Duncan v. State, 51 Ga. App. 97, 179 S.E. 638 (1935). Instruction on improper remarks as to self-incrimination. — Although no person can be compelled to selfincriminate, an improper comment thereon may be cured by an instruction to the jury. Alcorn v. State, 21 Ga. App. 148, 94 S.E. 46 (1917). Failure to rebuke for question that was not crucial. — There was no error in either the trial court’s denial of the defendant’s motion for a mistrial or in not rebuking the prosecutor for asking an allegedly improper question, particularly when the trial judge found that the question was not of a crucial nature. Martin v. State, 196 Ga. App. 145, 395 S.E.2d 391 (1990). When new trial required. — When a motion for mistrial is made because of counsel’s improper statement and there is no rebuke of counsel by the court and no charge to the jury to disregard such statement, the grant of a new trial is required. Hammond v. State, 51 Ga. App. 225, 179 S.E. 841 (1935). When argument of counsel is manifestly improper and prejudicial to the defendant, and the trial court neither grants a mistrial, nor rebukes counsel, nor by needful and proper instructions to the jury endeavors to remove the improper impressions from the jurors’ minds, and the verdict later reached by the jury is adverse to 17-8-75 the defendant and is not demanded by evidence, a new trial is required. Baggett v. State, 77 Ga. App. 24, 47 S.E.2d 769 (1948); Brown v. State, 77 Ga. App. 245, 48 S.E.2d 565 (1948). When the court after objection fails to rebuke counsel and endeavor by needful instructions to remove the prejudicial effect of the remarks from the minds of the jury or to order a mistrial, a new trial is required. Brown v. State, 110 Ga. App. 401, 138 S.E.2d 741 (1964); Smith v. State, 118 Ga. App. 464, 164 S.E.2d 238 (1968). With regard to the defendant’s trial and conviction for possession of methamphetamine and giving a false name to a law enforcement officer, although the prosecutor’s argument was improper and the trial court erred by failing to rebuke the prosecutor as required by O.C.G.A. § 17-8-75, the error was harmless since the improper argument consisted only of one comment not directly related to the defendant’s case, the trial court twice told the jurors that the arguments of counsel were not evidence, and there was ample evidence of the defendant’s guilt. As such, the trial court’s failure to perform the court’s duty under § 17-8-75 did not contribute to the verdict. Griffin v. State, 291 Ga. App. 657, 662 S.E.2d 767 (2008). Failure to give curative instruction harmless error. — Trial court’s error in failing to give a curative instruction in compliance with O.C.G.A. § 17-7-85 was harmless because it was highly probable that the trial court’s error did not contribute to the verdict; the trial court specifically instructed the jury that the closing arguments of counsel did not constitute evidence, and despite the overwhelming evidence of the defendant’s guilt, the jury was unable to reach a verdict on two of the counts against the defendant that were later dead docketed. O’Neal v. State, 288 Ga. 219, 702 S.E.2d 288 (2010). In two defendants’ trials for murder, even if the trial court erred under O.C.G.A. § 17-8-75 by failing to give, sua sponte, a curative instruction when the prosecutor referred to an absent witness who had been intimidated, any error was harmless because numerous witnesses had testified regarding threats made against the witnesses by the defendants 911 Rebuke of Counsel, Instruction of Jury, or Grant of Motion by Court (Cont’d) as well as the general disregard in the community for ‘‘snitches.’’ Stephens v. State, 307 Ga. 731, 838 S.E.2d 275 (2020). Prosecutor’s statements were outside of the evidence because the slides the prosecutor introduced were shown during opening statement before either side had put on any evidence; however, it was highly probable that the trial court’s alleged error in failing to comply with O.C.G.A. § 17-8-75 by not rebuking counsel or specifically instructing the jury to disregard the slides did not contribute to the guilty verdicts because it was doubtful that the slides qualified as prejudicial within the meaning of O.C.G.A. § 17-8-75 since the slides reflected evidence that the prosecutor expected to and, ultimately did, get admitted during the trial and argument that would be, and ultimately was, properly made during closing argument, so the same information later reached the jury appropriately. Dolphy v. State, 288 Ga. 705, 707 S.E.2d 56 (2011). Defendant waived the right to complain about an assistant district attorney’s remarks on appeal because the trial court’s alleged error in failing to comply with O.C.G.A. § 17-8-75 did not contribute to the verdicts, and the assistant district attorney’s closing comments did not entreat the jury to place themselves in the victim’s shoes. Gomez v. State, 315 Ga. App. 898, 728 S.E.2d 691 (2012). It was error to refuse to rebuke the assistant district attorney for asking an allegedly improper question during cross-examination of the defendant when it was not ‘‘a statement of prejudicial [matter].’’ Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983). Aggravated child molestation conviction was reversed after a prosecutor elicited improper testimony that the defendant had been molested as a child, and the trial court failed to rebuke the prosecutor or give a curative instruction; since the evidence of guilt was far from overwhelming, this error was not harmless. Tyler v. State, 266 Ga. App. 221, 596 S.E.2d 651 (2004). 17-8-75 Prosecutorial conduct harmless even if not waived on appeal. — As the defendant sought no additional relief for the prosecutor’s improper argument following the last curative instructions, the defendant waived the argument on appeal; moreover, the strength of the eyewitness evidence against the defendant, coupled with the contemporaneous curative instructions, rendered any prosecutorial misconduct harmless. Garcia v. State, 271 Ga. App. 794, 611 S.E.2d 92 (2005), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020). Trial court’s actions in rebuking defense counsel out of the presence of the jury after counsel misstated the evidence during closing argument, and then informing the jury that counsel had been rebuked, were appropriate; the trial court’s actions did not amount to an erroneous comment on the evidence. Lassic v. State, 278 Ga. 701, 606 S.E.2d 266 (2004). Comments by trial judge during defense counsel’s closing argument. — Defendant was not entitled to a new trial because the trial judge’s comments were limited in scope, were for the purpose of controlling the trial conduct and ensuring a fair trial, did not involve the issue of defendant’s guilt or innocence, and did not express an opinion on the evidence as to what was proved or not; comments by the trial judge during defense counsel’s closing arguments were for the purpose of preventing misstatements to the jury concerning matters not in evidence and were not improper under O.C.G.A. § 17-8-75. Mathis v. State, 276 Ga. App. 205, 622 S.E.2d 857 (2005). Harmless error. — Trial court specifically instructed the jury that the closing arguments of counsel were not evidence. Given the evidence, along with the trial court’s instruction to the jury, it was highly probable that the trial court’s error in failing to perform the court’s duty under O.C.G.A. § 17-8-75 did not contribute to the verdict. Holsey v. State, 316 Ga. App. 801, 729 S.E.2d 465 (2012). Discretion of Court Grant of mistrial is in court’s discretion. — Whether mistrial should be granted for improper argument of oppos- 912 ing counsel is largely discretionary. Waller v. State, 80 Ga. App. 488, 56 S.E.2d 491 (1949). This section leaves to the discretion of the trial court the decision to grant a mistrial. Johnson v. State, 142 Ga. App. 526, 236 S.E.2d 493 (1977). Trial court did not err in denying the defendant’s motion for a mistrial after the state alluded to the defendant’s father testifying at a probation revocation hearing as considering the evidence introduced at trial, the nature of the character evidence about which the defendant complained, and the trial court’s immediate curative instruction, the appellate court could not say that the trial court abused the court’s discretion in denying the defendant’s motion for a mistrial. King v. State, 269 Ga. App. 658, 605 S.E.2d 63 (2004). Trial court did not abuse the court’s discretion by failing to rebuke the state’s prosecutor for presenting a slide that hospital records showed the defendant’s history of alcohol abuse or by failing to declare a mistrial because the defendant did not object after the court provided the curative instruction. Samuels v. State, 335 Ga. App. 819, 783 S.E.2d 344 (2016). Inadvertent information that defendant seeing psychiatrist did not warrant mistrial. — Because the state did not intentionally elicit information from a witness that the defendant was seeing a psychiatrist, and such information did not necessarily inject one’s character into evidence, the defendant was not entitled to a mistrial; moreover, even assuming the comment did improperly put the defendant’s character into evidence, the trial court’s curative instruction was sufficient. Morita v. State, 270 Ga. App. 372, 606 S.E.2d 595 (2004). In response to the defendant’s attempt to make various pronouncements and address the victim’s spouse, prompting the prosecutor to object, and the court to admonish the defendant in the presence of the jury, the actions did not warrant a mistrial as the actions properly took issue with the defendant’s statements and conduct in a fair and objective manner and the trial court did not employ any measure which could be said to have compro- 17-8-75 mised the jury’s ability to remain impartial. Taylor v. State, 282 Ga. 44, 644 S.E.2d 850, cert. denied, 552 U.S. 950, 128 S. Ct. 384, 169 L. Ed. 2d 263 (2007). Issue of mistrial waived on appeal. — Because the record showed that the defendant acquiesced in the trial court’s decision to give curative instructions regarding testimony given by a state’s witness which the defendant claimed reflected prior criminal conduct that improperly placed the defendant’s character in issue, and did not again move for a mistrial after the instructions were given, the defendant waived the issue for purposes of appeal. Northern v. State, 285 Ga. App. 303, 645 S.E.2d 701 (2007). Abuse of discretion generally. — In passing upon a motion for a mistrial on account of alleged improper argument or remarks to the jury, the trial judge is vested with broad and sound discretion, and the trial judge’s ruling will not be controlled unless manifestly abused. Grayhouse v. State, 65 Ga. App. 853, 16 S.E.2d 787 (1941); Smith v. State, 204 Ga. 184, 48 S.E.2d 860 (1948); Parks v. State, 208 Ga. 508, 67 S.E.2d 716 (1951); Domingo v. State, 213 Ga. 24, 96 S.E.2d 896 (1957); James v. State, 215 Ga. 213, 109 S.E.2d 735 (1959); McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974), cert. denied, 428 U.S. 910, 96 S. Ct. 3223, 49 L. Ed. 2d 1218 (1976). If improper statements have been made by counsel in the presence of the jury, it is the duty of the judge to endeavor to remove from the minds of the jury improper impressions made by unfair arguments. In determining the proper method, the judge is vested with sound discretion, and the judge’s rulings thereon will not require a new trial, unless it manifestly appears that the judge’s discretion was abused. Hicks v. State, 196 Ga. 671, 27 S.E.2d 307 (1943). Grant or refusal of motions for mistrial is largely within the discretion of the trial court, and this discretion will not be interfered with unless manifestly abused. If the trial court immediately upon the happening of an irregularity gives cautionary instructions to the jury, the appellate court will not disturb the trial court’s judgment refusing a motion for mistrial. 913 Discretion of Court (Cont’d) Cox v. State, 109 Ga. App. 797, 137 S.E.2d 516 (1964). Matter of granting a mistrial is largely within the discretion of the trial court and unless it is apparent that a mistrial was essential to preservation of the right of fair trial, that discretion will not be controlled. Brown v. State, 118 Ga. App. 617, 165 S.E.2d 185 (1968); Cochran v. State, 144 Ga. App. 820, 242 S.E.2d 735 (1978). If, during oral argument, an assistant district attorney makes statements deemed by the defendant to be improper and upon a motion for mistrial being made the trial court immediately instructs the jury not to consider such argument, no harmful error appears in the overruling of the motion for mistrial unless it is manifest that an abuse of the trial court’s discretion has occurred. White v. State, 159 Ga. App. 545, 284 S.E.2d 76 (1981). O.C.G.A. § 17-8-75 commits to the judge’s discretion the decision to order a mistrial when counsel has made statements of prejudicial matters not in evidence before the jury. This discretion will not be interfered with on appeal unless manifestly abused. Welch v. State, 251 Ga. 197, 304 S.E.2d 391 (1983). Trial court did not run afoul of O.C.G.A. § 17-8-75 in permitting the state to explain the absence of the testimony of the other accomplice, which, during the state’s opening statement, the state had told the jury to expect as: (1) the state informed the trial court, outside the hearing of the jury and before making a statement to the jury, that the state’s witness had changed the witness’s mind about testifying and that the state wanted to let the jury know why the witness would not be testifying; (2) the state made the statement as a statement of fact, without any attempt to argue the evidence or prejudice the case; (3) the appellate court found no case in which § 17-8-75 has been applied in a situation in which a party informed the trial court of the content of a statement it intended to make and received the consent of the trial court to make such a statement; (4) the state did not act with an improper motive, bad faith, or with intent to subvert the defendant’s constitu- 17-8-75 tional rights; and (5) the truthful statement was not harmful under the facts of this case. Clemons v. State, 265 Ga. App. 825, 595 S.E.2d 530 (2004). Discretion not abused in denying mistrial if counsel rebuked and jury instructed. — When the court immediately rebukes counsel and instructs the jury to ignore the improper comments, the denial of the motion for mistrial is not an abuse of discretion. Johnson v. State, 142 Ga. App. 526, 236 S.E.2d 493 (1977). If counsel has made statements regarding prejudicial matters not in evidence before the jury, the trial court has the discretion to order a mistrial. The trial court’s refusal to do so, however, coupled with appropriate curative instructions and admonishment of state’s counsel, absent manifest abuse, will not be reversed. Schirato v. State, 260 Ga. 170, 391 S.E.2d 116 (1990); Willingham v. State, 212 Ga. App. 457, 442 S.E.2d 4 (1994); King v. State, 273 Ga. 258, 539 S.E.2d 783 (2000), cert. denied, 536 U.S. 957, 122 S. Ct. 2659, 153 L. Ed. 2d 834 (2002). Trial court did not abuse the court’s discretion in declining to grant a mistrial after an improper statement by the prosecutor as the court immediately sustained the defendant’s objection, rebuked the prosecutor, and instructed the jury not to consider the statement. Campbell v. State, 329 Ga. App. 317, 764 S.E.2d 895 (2014). Remark that witnesses were credible because the witnesses had not been impeached. — Trial judge did not abuse the judge’s discretion in refusing to grant a mistrial based on the prosecutor’s argument that two of the state’s witnesses were credible because the witnesses had not been impeached with prior inconsistent statements. Forney v. State, 255 Ga. 316, 338 S.E.2d 252 (1986). Defendant’s plan to comment on specific cases of mistaken identity. — Trial court properly disallowed defense counsel’s plan to comment on specific cases of mistaken identity which defense counsel personally knew about from experience or had read about, presumably from newspaper articles, and limited the argument to experiences common to everyone since the evidence would have been totally irrelevant if offered during 914 the trial because the comments were not related to this case, and since the facts may well have been in dispute. Watson v. State, 180 Ga. App. 82, 348 S.E.2d 557 (1986). Denial of mistrial after offer of curative instructions declined. — If counsel for a codefendant improperly placed a defendant’s character in evidence and the defendant’s counsel declined the trial court’s offer to give curative instructions to the jury, the court did not abuse the court’s discretion in denying the defendant’s motion for a mistrial. Daily v. State, 195 Ga. App. 4, 392 S.E.2d 554 (1990). Counsel not ineffective for failing to request mistrial. — Counsel was not 17-8-75 ineffective for failing to move for a mistrial because the evidence of guilt was overwhelming and it was highly probable that any improper argument did not contribute to the verdicts. Lloyd v. State, 280 Ga. 187, 625 S.E.2d 771 (2006). Trial court ruling prohibiting comment on spouse’s plea agreement. — With regard to a defendant’s drug conviction, the trial court did not err in prohibiting further comment by defense counsel about the terms of the plea agreement of the defendant’s spouse as the state had objected and the terms of the plea agreement had not been admitted into evidence. Dingler v. State, 293 Ga. App. 27, 666 S.E.2d 441 (2008).