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Lane v. State

Defendant did not lose the right to open and close arguments when his co-defendant's counsel had an officer on cross-examination read a portion of his testimony from a preliminary hearing for impeachment purposes.

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This appeal concerns the right to open and conclude closing argument in the trial of a criminal case. The right is controlled by OCGA § 17-8-71, which provides as follows: “After the evidence is closed on both sides, the prosecuting attorney shall open and conclude the argument to the jury. If the defendant introduces no evidence, his counsel shall open and conclude the argument to the jury after the evidence on the part of the state is closed.” In Smith v. State, 272 Ga. 874 3 536 SE2d 514 2000, this Court set out standards which are to be applied in determining whether a defendant who does not introduce evidence after the State rests has nonetheless lost the right to open and conclude closing argument:

1 If, under the guise of cross-examination, a defendant reads from the portions of a prior written statement of a witness that are not related to impeaching the witness, the defendant has effectively introduced evidence to the jury that should have been formally offered into evidence and the defendant therefore loses the right to open and close final arguments; 2 if a defendant reads only the portions of the prior written statement of a witness that are relevant to impeaching the witness, the defendant has not introduced evidence and does not lose the right to open and close; and 3 if a defendant, in impeaching a witness with a prior inconsistent statement, voluntarily introduces the statement into evidence in order to make it a part of the record, the defendant has introduced evidence and has lost the right to open and close final arguments.

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