Cole v. State
Cole v. State
Opinion of the Court
Terrance Cole was convicted by a jury of the offense of aggravated assault. His amended motion for new trial was denied, and he appeals. Construed in favor of the verdict, evidence was presented that Cole shot the victim with a “big,” “automatic” gun inside a public swimming pool locker room. Cole does not challenge the sufficiency of the evidence but instead raises arguments concerning the court’s rulings on an evidentiary matter, jury instructions, and closing argument. He also contends that he was denied effective assistance of counsel. We find no reversible error, and we affirm.
1. Cole argues that the trial court erred in not allowing him to present “good character evidence” in the form of “the victim’s general character of violence.” In an attempt to elicit information from one of Cole’s witnesses that the victim had a violent reputation, defense counsel asked a series of questions concerning the extent of the witness’s acquaintance with the victim. The witness testified that he had known the victim “for a couple of years,” had “seen him around a lot,” and knew whom the victim “hangs out with.” The witness also testified, however, that he did not “know him good.” Defense counsel asked the witness if he knew the victim’s reputation, and the trial
Trial courts have broad discretion to determine whether a sufficient foundation has been provided for the introduction of evidence. Wilson v. State, 241 Ga. App. 426, 428 (1) (b) (526 SE2d 381) (1999). We find no abuse of that discretion here, as the witness testified that he did not know the victim “good.” But even if, as Cole argues, a proper foundation was laid for the witness’s testimony concerning the victim’s reputation, we find no reversible error.
Even though the trial court did not allow Cole’s witness to testify concerning the victim’s bad reputation, other evidence was presented of the victim’s prior “bad acts.” The jury learned that drug charges were pending against the victim at the time of trial, that he often would “jump” on younger children, that he had thrown a brick at a bus driver, and that he had been suspended from riding the school bus due to violent behavior and threats. In addition, evidence of a number of difficulties between Cole and the victim was presented to the jury. For example, Cole testified that the victim once struck him with “a stick boarded with nails” and that, on another occasion, the victim reached into the car in which Cole was sitting, punched him in the face, opened the door, and kicked him in the arm. Cole also testified that the victim was once inside a car with friends, and Cole saw a gun “hanging out the window.” Evidence was presented that the victim lived in a neighborhood known as “Capitol Homes,” and one witness acknowledged on cross-examination that “all those Capitol Home boys carry guns.” Given the ample evidence of the victim’s reputation for violence, any error in excluding the cumulative testimony of one witness was harmless. See Marshall v. State, 275 Ga. 740, 743 (5) (571 SE2d 761) (2002).
2. Cole argues that during closing argument, the trial court erroneously allowed the State to present “irrelevant and improper comments on material not in evidence.” He bases this contention on the following statement by the prosecutor to the jury: “How only by the grace of God we’re not here on a murder prosecution, ladies and gentlemen.” Cole’s immediate objection was overruled by the trial court, and the prosecutor’s argument continued.
“As a general rule, prosecutors are granted wide latitude in conducting closing argument, and defining the bounds of such argument is within the trial court’s discretion.” (Footnote omitted.) Arnold v. State, 249 Ga. App. 156, 162 (4) (545 SE2d 312) (2001). This “wide latitude” encompasses the prosecutor’s ability to argue reasonable inferences raised by the evidence. Wyatt v. State, 267 Ga. 860, 864 (2)
3. Cole argues that the trial court erroneously failed to give an accident instruction following a “specific request from the jury.” Cole presented a justification defense, testifying that the victim walked toward him with a gun as if he were going to shoot him, that he and the victim began “tussling over the gun,” and that he pulled the trigger and shot the victim. He also stated that he grabbed the gun “because I was in fear of my life” and that he shot the victim in order to defend himself. During deliberations, the jury sent the court the following note: “We’d like to know if the shots were accidental and the intent to harm was not there, could we still consider an aggravated assault?” Defense counsel argued that the question “demands a charge on intent, accident and self-defense” but did not submit a written request. The trial court refused to give a charge on accident but recharged the jury on intent and justification.
“Generally, the need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court.” (Footnote omitted.) Buchanan v. State, 254 Ga. App. 249, 252 (3) (562 SE2d 216) (2002). Cole “did not make a written request for this charge, and, as this was not his sole defense, the trial judge did not commit reversible error by failing to give a charge that was not requested in writing.” (Citation and footnote omitted.) Butler v. State, 250 Ga. App. 626, 627 (2) (552 SE2d 565) (2001). Like the defendant in Butler, Cole’s “defense was justification because of self-defense.” Id. at 627, n. 2. The trial judge fully charged the jury on justification and self-defense, and we find no abuse of discretion in the trial court’s refusal to give an accident charge.
To demonstrate ineffective assistance of counsel, a defendant must show deficient performance by counsel and resulting prejudice from this deficiency. Nichols v. State, 253 Ga. App. 512, 515 (2) (559 SE2d 538) (2002). “A strong presumption exists that counsel’s conduct fell within the wide range of reasonable professional assistance. And where trial counsel does not testify at the motion for new trial hearing, it is extremely difficult to overcome this presumption.” (Citation and punctuation omitted.) Id. Furthermore, “in the absence of testimony to the contrary, counsel’s actions are presumed strategic.” (Citations and punctuation omitted.) Id. On direct examination, Cole explained why he waited until three days after the shooting to turn himself in to the police. On cross-examination, the prosecutor asked further questions concerning his reasons for leaving the scene without talking with the police and during closing argument commented that Cole made no effort to talk with the police for three days after the shooting. In the absence of trial counsel’s testimony or other evidence to the contrary, we must presume that counsel’s pursuit of this line of questioning and argument and his failure to object to the State’s questions and comments were strategic. Cole has failed to demonstrate deficient performance by trial counsel, and we find no basis for reversal on grounds of ineffectiveness.
Judgment affirmed.
Cole’s notice of appeal bears a handwritten notation stating that the motion for new trial transcript “need not be forwarded” to this court. Cole does not dispute the State’s recital in its appellate brief that trial counsel did not testify during the motion for new trial hearing.
Concurring Opinion
concurring and concurring specially.
I concur in the Court’s judgment, but because I have special concerns regarding Division 2 relating to the invocation of the Deity in final argument, I write separately to express those concerns.
During closing argument for the State, the prosecutor stated, “How only by the grace of God we’re not here on a murder prosecution, ladies and gentlemen.” The majority found that this argument “was a reasonable inference drawn from the evidence.” I disagree.
“Prosecutors are granted wide latitude in conducting closing
The Supreme Court of Georgia has noted, particularly in death penalty cases, that prosecutors should avoid “references to religion which invite jurors to base their verdict on extraneous matters not in evidence.”
However, in reviewing the long line of cases espousing this principle, courts have declined to reverse convictions simply because “passing, oratorical references to religious texts,” biblical law, and God were made in closing argument.
(Punctuation omitted.) McMahon v. State, 258 Ga. App. 512, 516 (4) (574 SE2d 548) (2002).
See Leon v. State, 237 Ga. App. 99, 103-104 (2) (c) (513 SE2d 227) (1999).
Carr v. State, 267 Ga. 547, 556 (7) (c) (480 SE2d 583) (1997).
Carruthers v. State, 272 Ga. 306, 308-310 (2) (528 SE2d 217) (2000) (death sentence overturned because of biblical references in closing argument). See Hammond v. State, 264 Ga. 879, 886-887 (8) (c) (452 SE2d 745) (1995) (quoting Bible, although improper, harmless).
Carruthers, supra at 309. See Western & Atlantic R. Co. v. York, 128 Ga. 687, 689 (2) (58 SE 183) (1907) (“Counsel may bring to his use in the discussion of the case well-established historical facts and may allude to such principles of divine law relating to transactions of men as may be appropriate to the case.”); Conner v. State, 251 Ga. 113, 122-123 (6) (303 SE2d 266) (1983) (same); Hill v. State, 263 Ga. 37, 45-46 (19) (427 SE2d 770) (1993) (brevity of religious references did not warrant overturning sentence); Carr, supra at 556 (even if reference asking jury to “pray” was improper, it was too brief to have impacted the case).
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