GA Code § 17-8-73 (2021)
2021 Georgia Code|Title 17 - Criminal Procedure|Chapter 8 - Trial|Article 4 - Conduct and Argument of Counsel|§ 17-8-73. Noncapital and Capital Felony Cases; Time Limits on Closing Argument

 In felony cases other than those involving capital felonies, counsel shall be limited in their closing arguments to one hour for each side. In cases involving capital felonies, counsel shall be limited to two hours for each side.   (Ga. L. 1924, p. 75, § 3; Code 1933, § 27-2204.)   Law reviews.   - For annual survey of death penalty law, see 56 Mercer L. Rev. 197 (2004).   JUDICIAL DECISIONS   Judge may not reduce time allowed for argument in capital felony.    - Counsel in a capital felony case are entitled, as a matter of right, to two hours on a side in which to argue their case, and the trial judge has no right in the judge's discretion in such a case to limit counsel's argument to a shorter period of time. Kittles v. State, 74 Ga. App. 383, 39 S.E.2d 766 (1946).    Murder defendant's closing argument could not be restricted to one hour as a capital felony defendant is entitled to two hours of closing argument. Massey v. State, 270 Ga. 76, 508 S.E.2d 149 (1998).    Trial court erred as a matter of law when the court did not treat the defendant's malice murder trial as one involving a capital felony under O.C.G.A. § 17-8-73 and did not give the defendant the two-hour limit on closing argument to which the defendant was entitled. Monroe v. State, 272 Ga. 201, 528 S.E.2d 504 (2000).    For purposes of O.C.G.A. § 17-8-73, malice murder and felony murder are capital felonies even when the death penalty is not sought. Chapman v. State, 273 Ga. 865, 548 S.E.2d 278 (2001).    Trial court erred by limiting defense counsel to one hour for closing argument at the end of the defendant's trial on charges of malice murder and felony murder, and the state supreme court reversed the defendant's conviction for malice murder and related crimes because the state's case was based in large part on circumstantial evidence, and the error was not harmless. Hendricks v. State, 277 Ga. 61, 586 S.E.2d 317 (2003).   Violation of O.C.G.A.    § 17-8-73 ignored. - Even though the trial court illegally infringed upon the right of closing argument by shortening the time permitted to defendant by O.C.G.A. § 17-8-73 and then refusing the defendant the unused time of the codefendants, the presumption of harm was overcome because the evidence of guilt was so compelling. Hayes v. State, 268 Ga. 809, 493 S.E.2d 169 (1997).   Allotted time was sufficient.    - Defendant's right to make a closing argument was not completely abridged since the defendant did not deny that the defendant killed the defendant's spouse, the defendant's sole defense was that the killing was voluntary manslaughter, and the defendant's trial counsel specifically did not request additional time for closing argument as part of the defense trial strategy not to lose the jurors' attention. Ricketts v. State, 276 Ga. 466, 579 S.E.2d 205 (2003).    Defendant was properly limited to one hour for the closing argument as the defendant was charged with drug related offenses and was not indicted for a crime that could be punished by death; the defendant was not entitled to two hours for the defendant's closing argument under Ga. Unif. Super. Ct. R. 13.1 and O.C.G.A. § 17-8-73. Miller v. State, 281 Ga. App. 354, 636 S.E.2d 60 (2006), cert. denied, No. S07C0087, 2007 Ga. LEXIS 106 (Ga. 2007).   Presumption of harm not rebutted.    - Although defense counsel was not completely cut off from making a closing argument on the defendant's behalf, the trial court erred in not allowing defense counsel to use the full amount of time that statutory law permitted counsel as the evidence in the case of the shooting death of the defendant's business partner, although strong, was not so overwhelming as to render any other version of events to be completely without belief and, thus, the presumption of harm that arose from shortening defense counsel's closing argument was not rebutted, and required that the defendant receive a new trial. Laster v. State, 276 Ga. 645, 581 S.E.2d 522 (2003).   Reduced time harmless error.    - At a trial in which a trial court limited closing arguments in defendant's capital murder trial to one hour per side, and the defendant's counsel acquiesced in the trial court's ruling, the issue of whether the defendant was denied the right to a longer closing argument under O.C.G.A. § 17-8-73 was waived on appeal; nonetheless, any error was harmless, as the defendant's right was not denied completely, and the evidence of guilt was so overwhelming that any other version of events was not credible. Agee v. State, 279 Ga. 774, 621 S.E.2d 434 (2005).   Counsel's plan to deliver 30-minute closing.    - Although the trial court erred in limiting closing arguments to one hour's duration, the defendant's right to make a two-hour closing was not abridged by the trial court's misstatement of O.C.G.A. § 17-8-73, since counsel had informed the trial court of counsel's plan to deliver a 30-minute closing argument and since counsel was not interrupted during the delivery of closing argument by the trial court. Stovall v. State, 287 Ga. 415, 696 S.E.2d 633 (2010).   Trial counsel's acquiescence in limited time waived error.    - Although the defendant charged with murder was entitled to two hours in the defendant's closing argument, the defendant's trial counsel acquiesced at trial to the trial court's ruling that closing arguments would be limited to one hour per side, waiving the issue on appeal; therefore, the defendant's appellate counsel was not ineffective for failing to raise this alleged error. Seabolt v. Norris, 298 Ga. 583, 783 S.E.2d 913 (2016).   Brief extension of time not abuse of discretion.    - Because a trial court had discretion to grant a short period of additional time for a party to reach the logical conclusion of the party's closing argument, even without a pre-argument request for more time, no abuse of discretion resulted from the trial court's decision to permit a brief extension to the state. Dorsey v. State, 285 Ga. App. 510, 646 S.E.2d 713 (2007).   Using less time than allotted not ineffective assistance.    - Existence of the statutory right to make a two-hour closing argument in a murder case does not mean that an attorney acts incompetently whenever the attorney decides to use less than the whole two hours. Brown v. State, 288 Ga. 902, 708 S.E.2d 294 (2011).   Ineffective assistance.    - While the defendant met the burden of showing trial counsel's deficient performance based on a misimpression that counsel was entitled to only one hour to make a closing argument, instead of two as permitted by O.C.G.A. § 17-8-73, the defendant failed to show that but for the error, trial counsel could have convinced the jury that the defendant was innocent of the crimes charged. Hardeman v. State, 281 Ga. 220, 635 S.E.2d 698 (2006).    As to the defendant's habeas claim that the defendant's trial counsel was ineffective for failing to use counsel's entire two hours for closing argument as provided in O.C.G.A. § 17-8-73, because kidnapping with bodily injury was a capital offense, but counsel believed counsel only had 30 minutes, there was no showing that trial counsel could have convinced the jury that the client was innocent of the crimes charged. Wilkerson v. Hart, 294 Ga. 605, 755 S.E.2d 192 (2014).   Forfeiture of right to appeal insufficient time.    - Although the trial court erred by limiting the defendant's closing arguments in a felony murder trial to one hour, the defendant forfeited the right to raise the issue on appeal by faling to object or ask for more time when the court said time was running out. Lay v. State, 305 Ga. 715, 827 S.E.2d 671 (2019).    Cited in Carter v. State, 263 Ga. 401, 435 S.E.2d 42 (1993).   RESEARCH REFERENCES   C.J.S.   - 88 C.J.S., Trial, § 288 et seq.   ALR.   - Propriety of trial court order limiting time for opening or closing argument in criminal case - state cases, 71 A.L.R.4th 200.