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GANN v. THE STATE.
A00A1264.
RUFFIN, Judge.
Armed robbery, etc. Cobb Superior Court. Before Judge Robinson.
Joshua Daniel Gann was convicted of armed robbery and false imprisonment. On appeal, he contends that the trial court erred by refusing to give curative instructions after the jury saw him in handcuffs and by making improper comments during defense counsel's questioning of a witness. We find these contentions without merit, and we affirm.
1. After the jury was selected but before opening statements, defense counsel told the court that "the defendant informed us the jurors saw him outside in the hallway in handcuffs and we would ask for some sort of instruction as to his guilt." The judge responded that
I believe there are cases that say the fact the defendant may be in custody at the time of trial, if that's known to the jury, that that is not any sort of problem, especially if it is a serious charge. The jurors might expect a defendant to be in custody on a serious charge.
Defense counsel then stated, "I just wanted to bring that to the Court's attention," and did not press the matter any further. The judge then gave the jury its preliminary charge, instructing it, among other things, that the defendant had pled not guilty, that the burden was always on the State to prove the essential elements of the indictment beyond a reasonable doubt, and that the jury was to decide the case only on the evidence presented in open court.
2. Gann also contends that certain comments made by the judge during defense counsel's examination of a witness violated OCGA 17-8-57 by suggesting the judge's opinion as to the evidence. "where the trial judge is alleged to have made a prejudicial remark during the course of the trial in violation of OCGA 17-8-57, an objection or motion for mistrial must be made in order to preserve the issue for appeal." 2 Because Gann made no such objection or motion for mistrial, this enumeration is without merit.
Notes
1  See generally Cobb v. State 236 Ga. App. 265, 269 (3) (b) (511 SE2d 522) (1999) (defendant cannot acquiesce in ruling and then complain on appeal); Billups v. State, 234 Ga. App. 824, 829 (3) (507 SE2d 837) (1998) (defendant waived right to challenge adequacy
2  (Punctuation omitted.) Lucas v. State, 197 Ga. App. 347 (1) (398 SE2d 417) (1990). See also Crowe v. State, 265 Ga. 582, 594 (19) (458 SE2d 799) (1995).
Patrick H. Head, District Attorney, Dana J. Norman, Assistant District Attorney, for appellee.
Mitchell D. Durham, for appellant.
DECIDED AUGUST 2, 2000.
Thursday May 21 01:52 EDT


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