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HUSH v. THE STATE.
A89A1918.
SOGNIER, Judge.
Drug violation. Bartow Superior Court. Before Judge White.
George Hush appeals from his conviction of trafficking in cocaine.
The evidence adduced at trial would have authorized the jury to find the following facts. Walter Dale Martin had been purchasing cocaine from appellant and his wife, Kathy Hush, for approximately seven or eight months when he was arrested in Bartow County on August 17, 1988, and charged with possession of cocaine with intent to distribute. Martin agreed to work with Investigator Michael D. Shinall of the Bartow County Sheriff's Office to see if he could purchase cocaine from the Hushes in Bartow County. Under the supervision of Shinall, Martin attempted to contact the Hushes several times on August 17th and 18th, but did not reach anyone until August 19th. On that date, he spoke with Kathy Hush twice. In the first telephone call, Martin ordered an ounce of cocaine. In the second telephone call, Kathy Hush informed Martin that appellant would be making the delivery and put appellant on the telephone to give Martin directions to the location in Bartow County where they would meet. In his testimony, appellant corroborated the fact that he spoke with Martin only to give him directions. At approximately 9:00 p.m. that evening, Martin arrived at the prearranged location with Shinall. Shinall testified that Martin was in custody, and he and his clothing had been searched to make sure he was not carrying any drugs. Appellant arrived shortly thereafter and was arrested in possession of a black bag containing what was later identified as 28 grams of at least 95 percent pure cocaine.
1. Appellant raises the general grounds in two enumerations of error, but fails to support these enumerations with argument or citation of authority. Accordingly, these enumerations are deemed abandoned under Rule 15 (c) (2) of this court. Motes v. State, 189 Ga. App. 430 (1) (375 SE2d 893) (1988).
2. Appellant contends the trial court erred by refusing to give his requested charges regarding entrapment, which was his sole defense, because he testified that he had "never sold any drugs before in my life to anybody" and because the idea for the "controlled buy" in issue here originated with Shinall. We do not agree.
3. Appellant also contends the trial court erred by denying his motion for a mistrial made after the prosecutor commented on appellant's wife's failure to testify. Kathy Hush had elected to invoke her privilege not to testify pursuant to OCGA 24-9-23, and the prosecutor was notified of her election prior to trial. On direct examination, appellant was asked whether he knew how his wife had met Martin. Appellant began his answer but the prosecutor interrupted and objected, saying "[o]f course, Your Honor, this is hearsay . . . if this is hearsay, I want to hear from Mrs. Hush. If you're listening to hearsay, I don't want to hear any hearsay, you put Mrs. Hush up here." Appellant moved for a mistrial, which the trial court denied. The trial court did, however, instruct the jury that "the Defendant doesn't have to offer any evidence whatsoever. The State always has the burden of proving the Defendant guilty beyond a reasonable doubt," whereupon the motion for a mistrial was renewed and denied.
While we agree with appellant that the comment was improper, see James v. State, 223 Ga. 677, 682-684 (5) (157 SE2d 471) (1967); Westbrook v. State, 162 Ga. App. 130 (1) (290 SE2d 333) (1982), and the curative instruction given by the trial court was meager, nevertheless, the grant or denial of a mistrial is within the sound discretion of the trial court. See Wilkerson v. State, 183 Ga. App. 26, 27 (1) (357 SE2d 814) (1987). "In the absence of a demonstration that a mistrial was essential to preservation of appellant's right to a fair trial, it is not an abuse of discretion to deny a motion for a mistrial, even in the absence of curative instructions. [Cit.] Under the circumstances of this case, including the overwhelming evidence of appellant's guilt, we find no abuse of discretion." Little v. State, 178 Ga. App. 268, 270 (342 SE2d 712) (1986).
Darrell E. Wilson, District Attorney, for appellee.
Greene & Greene, Barry B. Greene, for appellant.
DECIDED NOVEMBER 6, 1989.
Thursday May 21 11:13 EDT


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