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Johnson v. State

Court of Appeals of Georgia
Apr 11, 1988
186 Ga. App. 891 (Ga. Ct. App. 1988)

Opinion

75872.

DECIDED APRIL 11, 1988. REHEARING DENIED APRIL 25, 1988.

Rape. Glynn Superior Court. Before Judge Taylor.

Randall M. Clark, for appellant.

Glenn Thomas, Jr., District Attorney, Robert L. Crowe, Assistant District Attorney, for appellee.


Defendant was convicted of rape and sentenced to serve 20 years in the penitentiary. Following the denial of his motion for new trial, he appeals. Held:

1. During closing argument, defense counsel stated that rape is a capital offense. The trial court interrupted and informed the jury that that was not the case: "[T]hat is a misstatement of the law, and I wouldn't want the jury mislead. This case does not involve a capital offense." Thereupon, following a bench conference, defendant moved for a mistrial. The motion was overruled.

In his first enumeration of error, defendant contends the trial court erred in interrupting his closing argument and overruling his motion for mistrial. Citing Hicks v. State, 256 Ga. 715 ( 352 S.E.2d 762), he argues that rape is a capital felony and the trial court was in error when it stated otherwise. We disagree.

In Hicks v. State, 256 Ga. 715, 727 (19) (b), supra, the Supreme Court pointed out that rape is a capital offense for purposes of determining statutory aggravating circumstances under the death penalty statute (OCGA § 17-10-30). This is because rape was a capital offense when the death penalty statute was enacted. See Crawford v. State, 254 Ga. 435, 440 (5) ( 330 S.E.2d 567). Thus, in the context of OCGA § 17-10-30 (b), rape is a capital felony. Hicks v. State, 256 Ga. 715, 727 (19) (b), supra. Rape is not, however, a capital offense in the context of this case. See OCGA § 16-6-1. It cannot be said, therefore, that the trial court erred in interrupting defense counsel's closing argument and denying defendant's motion for mistrial. See Hill v. State, 239 Ga. 799 (1) ( 239 S.E.2d 15).

2. The trial court did not abuse its discretion by sustaining the State's objection to defense counsel's mention of another rape case during closing argument. Maynard v. State, 171 Ga. App. 605, 607 (3) ( 320 S.E.2d 806). Defendant's second enumeration of error lacks merit.

3. The trial court did not err in charging the jury that sexual intercourse with a woman who is temporarily without will, due to unconsciousness arising from sleep, is rape. Paul v. State, 144 Ga. App. 106 (2) ( 240 S.E.2d 600). The charge was adjusted to the evidence.

Judgment affirmed. Pope and Benham, JJ., concur.

DECIDED APRIL 11, 1988 — REHEARING DENIED APRIL 25, 1988 — CERT. APPLIED FOR.


Summaries of

Johnson v. State

Court of Appeals of Georgia
Apr 11, 1988
186 Ga. App. 891 (Ga. Ct. App. 1988)
Case details for

Johnson v. State

Case Details

Full title:JOHNSON v. THE STATE

Court:Court of Appeals of Georgia

Date published: Apr 11, 1988

Citations

186 Ga. App. 891 (Ga. Ct. App. 1988)
369 S.E.2d 48

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