Powell v. State

The prosecutor's improper remarks did not form a basis for reversal as trial counsel failed to raise an objection at trial, and a trial judge has no obligation under OCGA § 17-8-75 to rebuke a prosecuting attorney or give a curative instruction in the absence of a timely objection.

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Marquez Powell was tried by a Fulton County jury and convicted of the murder of Shah Walton, as well as possession of a firearm during the commission of a felony. Following the denial of his motion for new trial, Powell appeals, contending that the evidence is insufficient to sustain his convictions, that the prosecuting attorney made improper and prejudicial remarks in her closing argument, and that the court below impermissibly allowed the State to constructively amend the indictment at trial. Upon our review of the briefs and the record, we find no reversible error, and we affirm.1

1. Viewed in the light most favorable to the prosecution, the evidence shows that Walton, Powell, and Jacques Shockley were traveling together in a car on the evening of April 18, 2005. Walton was driving, Powell was seated behind Walton, and Shockley was seated in the front passenger seat. Two witnesses saw the car stop suddenly in the road, and the witnesses saw two men exit the car on the passenger side, stand together for a moment at the front of the car, and then flee from the scene together on foot. After the passengers fled, the witnesses approached the car and found Walton, who had been shot in the head at close range. Walton died as a result of the gunshot wound. After the shooting, Powell went to the home of a friend, a few blocks from the scene of the shooting, and Shockley went to the same house, although he arrived after Powell. Notwithstanding that Powell later described Walton as a close friend, Powell did not notify law enforcement that his friend had been shot, and he instead called his sister, who picked him up and took him to the home of his mother.

Powell v. State

The prosecutor's improper remarks did not form a basis for reversal as trial counsel failed to raise an objection at trial, and a trial judge has no obligation under OCGA § 17-8-75 to rebuke a prosecuting attorney or give a curative instruction in the absence of a timely objection.

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