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263 Ga. 776

439 S.E.2d 480

94 FultonCountyD.Rep. 401

Bell v. State

Supreme Court of Georgia

Decided February 7, 1994

Supreme Court of Georgia · decided 1994-02-07

Relies on Alexander v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1994-02-07

How this case has been cited

Cited by 26 later decisions — most recently March 2023 · most notably Smith v. State (2015), Mize v. State (1998)

26 state decisions

1601994200020102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Hunt, Presiding Justice,

¶1dissenting.

¶2I respectfully dissent.

¶3Nothing in the record, the Court of Appeals opinion, or the majority reveals what the prosecutor said in closing, or the context in which she said it. Her purpose in making the remarks objected to is unclear.2 By reversing this conviction on the record before us, the majority places the burden of proof on the state to show that its argument was not unduly prejudicial or irrelevant. Also, implicitly, the majority places the burden of proof on the state to show that even if the argument was improper, that argument did not affect the outcome of the case. That is not the law, nor, in my opinion, should it be.

¶4All that can be discerned from the record is that the prosecutor, in closing argument, made some reference to the “Red Oak murder,” a drug-related murder in a housing project, and to a “ski mask rapist.” With regard to the Red Oak murder, the prosecutor’s stated justification for the reference was that an expert witness for the defense testified regarding violence in connection with drug trafficking, that the Red Oak murder was a drug-related murder in a City of Atlanta *779housing project, and that the drug trafficking here took place in a City of Atlanta housing project. Counsel is entitled to comment in closing on evidence properly admitted at trial. If the prosecutor’s reference was legitimately connected to evidence admitted at trial, we can reverse the conviction because of that reference only if the evidence was improperly admitted. The majority does not state the evidence was improperly admitted, and accordingly, there is no authority for reversal on this ground. See Alexander v. State, 263 Ga. 474, 476 (2) (c) (435 SE2d 187) (1993).

Decided February 7, 1994.Anna Blitz, for appellant.Lewis R. Slaton, District Attorney, Nancy A. Grace, Assistant District Attorney, for appellee.

¶5With regard to the “ski mask rapist,” the prosecutor justified her use of that reference to illustrate the meaning of and purpose for proof regarding similar transactions. It does not appear, and neither the majority nor the defense state, that the prosecutor argued or implied that drug trafficking, such as that which occurred in this case, leads to, or is similar to rape. The reference, insofar as we can reasonably speculate about what was said in light of the lack of a record, could not have been prejudicial in this context.

¶6In my view, the reversal of this drug trafficking conviction is completely unwarranted.

¶7 The reason there is no record of the remarks is that the trial court refused the defense request that final arguments be recorded. While this is a matter of discretion on the part of the trial court, I question whether that discretion was not abused under the circumstances of this case.

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