STEPHENS v. THE STATE (Two Cases)

Lloyd Stephens and Demetreus Brewer were tried together and convicted of murdering Eric Kemp, a man known locally as the 'beeper man,' during a 2002 robbery at his repair shop. The case had gone cold for years until a federal witness implicated Stephens years later, leading to new arrests. Both men appealed to the Supreme Court of Georgia, arguing that the trial judge should have stopped the trial or given special instructions after prosecutors mentioned people who did not testify during closing arguments, and Stephens separately argued his lawyer was ineffective for not objecting to comments about witness honesty. Brewer also argued the judge should have let him admit his old drug conviction by written agreement instead of letting the jury hear the details. The court found none of these arguments successful. It ruled that any error in not giving extra instructions was harmless, that some objections were not properly preserved, that the prosecutor's comments about witnesses were fair arguments from the evidence rather than personal opinions, and that Brewer's prior drug conviction was not likely to unfairly inflame the jury in a murder case. Both convictions were affirmed.

The trial court did not err in declining to give unrequested curative instructions or grant a mistrial over closing-argument remarks, defense counsel was not ineffective for treating certain remarks as permissible argument from evidence, and the court properly refused to require the state to accept a stipulation to Brewer's prior felony because that conviction was not the kind likely to inflame the jury's passions in a murder trial.

The ruling reinforces how much latitude prosecutors have in closing arguments and confirms that trial judges do not have to act on their own to correct problems unless a defendant specifically asks. It also clarifies when defendants can force the state to accept a stipulation instead of full evidence of a past conviction.

Judgments affirmed

1. Under Georgia law (OCGA § 17-8-75), a trial judge only has a duty to rebuke a prosecutor or give the jury a special instruction fixing an improper remark if the defendant specifically asks for that instruction after the objection is sustained; here Stephens's objection was sustained but he never asked for more.
2. Even assuming the judge should have given a curative instruction on his own about the mention of a missing witness, the error was harmless because other witnesses had already testified extensively about the danger of being seen as a 'snitch,' so the comment added little.
3. An objection made by one co-defendant's lawyer does not automatically protect the other co-defendant unless that co-defendant's lawyer joins in the objection; because Stephens's lawyer never joined Brewer's objection about Brewer's mother, Stephens could not raise that issue on appeal.
4. To win a claim that his lawyer was constitutionally ineffective, a defendant must show under the Strickland test that the lawyer's performance was deficient and that the outcome would likely have been different without that failure; because the prosecutor's comments about witness credibility were fair inferences from the evidence rather than improper personal opinions, there was nothing deficient about the lawyer's decision not to object.
5. For Brewer's request to let him admit his prior drug conviction by stipulation rather than have the jury hear it in detail, the court applied the standard from Old Chief v. United States: a judge abuses discretion only if the prior conviction's name or nature risks inflaming the jury and the only purpose of admitting it is to prove felon status.
6. Applying that standard, the court concluded that a conviction for possession of cocaine with intent to distribute is not the type of offense likely to inflame a jury's passions in a murder case, so the trial judge was allowed to let the state prove the conviction fully instead of accepting Brewer's proposed stipulation.

• murder conviction
• closing argument objections
• prior felony stipulation
• ineffective assistance of counsel
• witness credibility comments