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Al-Amin v. State5/24/2004
g forth the correct principles of law. Compare Salisbury v. State, 221 Ga. 718 (5) (146 SE2d 776) (1966) and Spann v. State, 126 Ga. App. 370 (2) (190 SE2d 924) (1972) (the error was deemed harmful in the absence of any effort by the trial court to correct the injury the improper remark caused the defendant). The strength of the evidence against Al-Amin coupled with the contemporaneous curative instruction leads this Court to conclude that the violation here was harmless beyond a reasonable doubt. Chapman v. California, supra; Raheem, supra at (7); Hill, supra at (4).
16. Al-Amin challenges the prosecutor's closing argument in other respects.
(a) It is asserted that the prosecutor misstated the testimony given by a State's witness. What is impermissible is "the injection into the argument of extrinsic and prejudicial matters which have no basis in the evidence." (Punctuation omitted.) Bell v. State, 263 Ga. 776, 777 (439 SE2d 480) (1994). Here the prosecutor imprecisely restated the description given by Deputy Kinchen of his assailant to one of the EMT's on the scene. The EMT testified that Deputy Kinchen told him that he and his partner were in the process of serving a warrant "when the suspect opened up on us." The prosecutor misstated the EMT's testimony by recounting that Deputy Kinchen identified his assailant as "the guy on the warrant." Upon objection by the defense, the trial court instructed the jury that the attorneys in good faith are recalling the evidence, but closing arguments are not evidence and in the end the evidence is what the jury determines it to be. We find no error.
(b) Al-Amin asserts that he was entitled to a mistrial when at the conclusion of the State's closing argument, the prosecutor stated, "don't stand for him," alluding to Al-Amin's religious beliefs which prevented him from rising when the jury entered the courtroom. The record reveals that several times during trial, the court offered to instruct the jury that as an observant Muslim, Al-Amin is prevented by his religious beliefs from standing in the courtroom. On each occasion, the defense declined. The defense ultimately accepted the court's offer to explain this conduct during the jury charge at which time the jury was instructed that the defendant is a practicing Muslim, that he has elected not to stand because of his religious beliefs, and that his conduct has the court's approval. Al-Amin was not harmed by the prosecutor's comments.
(c) Although it is asserted that the cumulative effect of the errors in closing argument deprived defendant of a fair trial, Georgia does not follow a cumulative error rule of prejudice. Morrison v. State, 276 Ga. 829 (5) (583 SE2d 873) (2003).
(d) Any remaining assertions of error with respect to the State's closing argument were not preserved for review. See Mullins v. State, 270 Ga. 450 (2) (511SE2d 165) (1999).
17. During cross-examination of a State's witness, defense counsel elicited testimony that the witness had grown up in the West End community; counsel then asked the witness if he had seen how the neighborhood had changed. Anticipating that the questioning was leading to Al-Amin's role in community improvement, the State requested a bench conference and asked the trial court for a ruling as to whether such evidence would open the "character door." The defense objected but discontinued that line of questioning. After further argument on the issue, the court ruled that testimony concerning Al-Amin's positive influence in the community would constitute evidence of good character under State v. Braddy, 254 Ga. 366 (330 SE2d 338) (1985), and would permit the State to offer rebuttal evidence. On appeal, Al-Amin asserts
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