providing that in non-capital cases, a defendant's failure to object to an improper closing argument waives the right to raise that argument on appealSummary of this case from Smith v. Warden, Macon State Prison
DECIDED JANUARY 19, 1999.
Murder. Floyd Superior Court. Before Judge Salmon.
Levinson Paul, Christopher G. Paul, for appellant.
Tambra P. Colston, District Attorney, Leigh E. Patterson, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Angelica M. Woo, Assistant Attorney General, for appellee.
A jury found James Mullins guilty of the malice murder of Roy Smith, and of the possession of a firearm during the commission of that crime. Upon entering judgments of conviction on the jury's guilty verdicts, the trial court sentenced Mullins to life imprisonment for the murder, and to a consecutive 5-year term for the possession of a firearm offense. After the trial court denied Mullins' motion for new trial, he filed an appeal from the judgments of conviction and sentences.
The crimes were committed on April 14, 1992, and the grand jury indicted Mullins on May 3, 1996. The jury returned its guilty verdicts on February 4, 1998 and, on that same day, the trial court sentenced Mullins. Mullins filed his motion for new trial on March 2, 1998, and the trial court denied that motion on May 28, 1998. Mullins filed his notice of appeal on June 26, 1998, and the case was docketed in this court on August 4, 1998. Mullins submitted his appeal for decision on September 28, 1998.
1. One of the State's witnesses testified that he was present when Mullins shot and killed Smith in a fit of jealousy. Another testified that Mullins admitted to her that he killed Smith. The credibility of the testimony given by these witnesses was for the jury. Construing the evidence most strongly in support of the guilty verdicts, it is sufficient to authorize a rational trier of fact to find proof beyond a reasonable doubt of Mullins' guilt of malice murder, and of possessing a firearm during the commission of that crime. Jackson v. Virginia, 443 U.S. 307 ( 99 S.Ct. 2781, 61 L.E.2d 560) (1979).
2. Mullins asserts that the prosecutor made an improper comment during closing argument. However, he did not object below and, therefore, he did not invoke a ruling by the trial court. "A defendant must object to the alleged impropriety at the time it occurs in order to afford the trial court the opportunity to take remedial action. [Cit.]" Miller v. State, 267 Ga. 92 (2) ( 475 S.E.2d 610) (1996). The failure to do so generally results in a waiver of the defendant's right to urge the impropriety of the argument on appeal. See Harley v. State, 263 Ga. 875, 878 (5) ( 440 S.E.2d 178) (1994). Compare OCGA § 5-5-24 (c) (authorizing appellate review of unchallenged charges under a "substantial error" standard).
Mullins nevertheless contends that the principle of waiver does not apply and that we must reverse his convictions if the prosecutor's argument was improper and, in reasonable probability, changed the result of the trial. This "reasonable probability" test applies only in the context of appellate review of a criminal case in which the death penalty was imposed. See Whatley v. State, 270 Ga. 269 (9) ( 509 S.E.2d 45) (1998). See also Mize v. State, 269 Ga. 646, 653 (8) ( 501 S.E.2d 219) (1998). Barnes v. State, 269 Ga. 345, 356 (23) ( 496 S.E.2d 674) (1998); Sears v. State, 268 Ga. 759, 765 (15) ( 493 S.E.2d 180) (1997); Bishop v. State, 268 Ga. 286, 294 (14) ( 486 S.E.2d 887) (1997); Carr v. State, 267 Ga. 547, 555 (7) ( 480 S.E.2d 583) (1997); Bright v. State, 265 Ga. 265, 285 (19) ( 455 S.E.2d 37) (1995); Hittson v. State, 264 Ga. 682, 689 (13) ( 449 S.E.2d 586) (1994); Thornton v. State, 264 Ga. 563, 568 (4) (c) ( 449 S.E.2d 98) (1994); Ledford v. State, 264 Ga. 60, 67 (18) (a) ( 439 S.E.2d 917) (1994); Tharpe v. State, 262 Ga. 110, 113 (16) ( 416 S.E.2d 78) (1992); Todd v. State, 261 Ga. 766, 767 (2) (a) ( 410 S.E.2d 725) (1991). Because this was not a death penalty case, it was incumbent upon Mullins to raise an objection to the State's argument below in order to preserve the right to contest the propriety thereof in a subsequent appeal. Harley v. State, supra.
On occasion, the Court of Appeals has applied the "reasonable probability" standard in its review of portions of the State's closing argument to which the defendant raised no objection in the trial court. However, since the Court of Appeals has no jurisdiction over death-penalty cases, it is clear that any criminal case in which that Court, relying upon one of this Court's decisions in a capital case, has applied the "reasonable probability"test in its review of instances of unchallenged argument is erroneous and must be overruled. See, e.g., Smith v. State, 231 Ga. App. 68, 70 (4) ( 498 S.E.2d 561) (1998); Hopkins v. State, 227 Ga. App. 567, 568 (2) ( 489 S.E.2d 368) (1997); Geoffrion v. State, 224 Ga. App. 775, 780 (8) (a) ( 482 S.E.2d 450) (1997); Bell v. State, 219 Ga. App. 553, 554 (3) ( 466 S.E.2d 68) (1995); Wright v. State, 209 Ga. App. 128, 129 (3) ( 433 S.E.2d 99) (1993). The "reasonable probability" test applies only in this Court, and then only in the limited context of our appellate review of a capital case. In the appeal of a non-capital case in either appellate court, the defendant's failure to object to the State's closing argument waives his right to rely on the alleged impropriety of that argument as a basis for reversal. Harley v. State, supra. Compare OCGA § 5-5-24 (c). Accordingly, Mullins' failure to object below so as to invoke a ruling by the trial court precludes our consideration of the merits of his contention that the State's closing argument was improper.
3. Mullins contends that he was denied his constitutional right to a speedy trial. His failure to raise this constitutional issue in the trial court is a forfeiture of his right to raise it on appeal. See Senase v. State, 258 Ga. 592 ( 372 S.E.2d 813) (1988).
Judgments affirmed. All the Justices concur.