Constitutionality.

- Ability or inability to obtain early release does not relate to the defendant's character, the defendant's prior record, or circumstances of the defendant's offense; thus, policy forbidding argument about such matters does not run afoul of either U.S. Const., amend. 8 or 14, and the trial court did not err in refusing to allow such argument. Horton v. State, 249 Ga. 871, 295 S.E.2d 281 (1982), cert. denied, 459 U.S. 1188, 103 S. Ct. 837, 74 L. Ed. 2d 1030 (1983).

Construction with

§ 17-10-31.1. - Provision of former O.C.G.A. § 17-10-31.1 expressly authorizing argument to the jury on the issue of parole in the sentencing phase of death penalty trials conflicted with O.C.G.A. § 17-8-76 which imposed an absolute bar on such argument; however, former § 17-10-31.1 prevailed since it was the more recent enactment. Jenkins v. State, 265 Ga. 539, 458 S.E.2d 477 (1995).

O.C.G.A. § 17-8-76 has not been implicitly repealed. Quick v. State, 256 Ga. 780, 353 S.E.2d 497 (1987).

Purpose of O.C.G.A. § 17-8-76 is to prevent prosecutors from arguing that jury should give more severe sentence to compensate for possible pardon, parole, or other clemency. Gilreath v. State, 247 Ga. 814, 279 S.E.2d 650 (1981), cert. denied, 456 U.S. 984, 102 S. Ct. 2258, 72 L. Ed. 2d 862 (1982).

Policy underlying O.C.G.A. § 17-8-76. - This section establishes the policy of the law that the jury should not be influenced in a criminal case in the rendition of their verdict by a consideration of the fact that the penalty imposed by the jury might be commuted by the State Board of Pardons and Paroles. McGruder v. State, 213 Ga. 259, 98 S.E.2d 564 (1957); Cash v. State, 231 Ga. 285, 201 S.E.2d 625 (1973).

If the state simply reminds the jury that the jurors are not concerned with punishment and not that the defendant might not be required to suffer the full penalty of the law imposed by the court because of pardon, parole, or clemency, the prosecutor's comments do not violate this section. Berrian v. State, 139 Ga. App. 571, 228 S.E.2d 737 (1976); Freeman v. State, 245 Ga. App. 384, 537 S.E.2d 776 (2000).

Test for reversible error.

- When no timely objection is interposed during improper closing argument, the test for reversible error is not simply whether or not the argument was objectionable, or even if the argument might have contributed to the verdict, but whether the improper argument in reasonable probability changed the result of the trial. Jenkins v. State, 235 Ga. App. 547, 510 S.E.2d 87 (1998).

Discussion of defendant's future being in jeopardy.

- When the prosecutor in closing argument stated that the defendant's life was not in jeopardy, only the defendant's immediate future, although the Supreme Court disapproved of the prosecutor's comment, it did not violate O.C.G.A. § 17-8-76 because it did not specifically refer to pardon, parole, or other clemency, and under the circumstances, the trial court's curative instructions were sufficient. Jones v. State, 258 Ga. 249, 368 S.E.2d 313 (1988).

Prosecutorial comment not violation.

- Prosecutor's comment to the jury during final argument that "if [the defendant] is ever on the street again in his whole life, there is no doubt but that he'll commit crimes like this again" did not violate subsection (a) of O.C.G.A. § 17-8-76. Finney v. State, 253 Ga. 346, 320 S.E.2d 147 (1984), cert. denied, 470 U.S. 1088, 105 S. Ct. 1854, 85 L. Ed. 2d 151 (1985).

Viewed in context, the prosecutor's statements during closing argument merely served to remind the jury that the jurors were to be concerned with the defendant's guilt only, not the defendant's punishment, and thus, did not violate O.C.G.A. § 17-8-76. Joyce v. State, 235 Ga. App. 167, 509 S.E.2d 85 (1998).

Prosecutor may request jury not to consider possible penalties.

- Closing argument by the state's attorney informing the jury that the jury should not take into consideration any possible penalty should the jury convict is not in violation of O.C.G.A. § 17-8-76. Mitchell v. State, 167 Ga. App. 306, 306 S.E.2d 322 (1983).

Ineffective assistance of counsel claim procedurally barred.

- Defendant's claim that trial counsel was ineffective for failing to object to the prosecutor's improper closing argument that life did not mean life was procedurally barred because the defendant did not raise it in the motion for new trial and did not obtain a ruling on the motion by the trial court. Cowart v. State, 294 Ga. 333, 751 S.E.2d 399 (2013).

Harmless error.

- Even if a prosecutor's remarks about the defendant's credibility and statement that if the jury convicted the defendant of a lesser charge the jury "would be letting this defendant off the hook," could be interpreted as improper, the court held it was highly improbable in light of the evidence that the remarks changed the result of the trial, and any error in the prosecutor's argument was therefore harmless. Jenkins v. State, 235 Ga. App. 547, 510 S.E.2d 87 (1998).

Prosecutorial comment improper, but harmless.

- Although harmless in view of the overwhelming evidence of the defendant's guilt, the prosecutor's remark that the defendant had served only 14 of 20 years for a prior conviction was highly improper. Moore v. State, 242 Ga. App. 249, 529 S.E.2d 381 (2000).

Reference to drug rehabilitation not violation of section.

- Trial court was not required to declare a mistrial when the prosecutor asked the jurors if the jurors believed that the defendant would be rehabilitated rather than go back to drugs if the defendant were released from jail since the prosecutor did not specifically refer to pardon, parole, or other clemency. Romine v. State, 256 Ga. 521, 350 S.E.2d 446 (1986), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912, 95 L. Ed. 2d 517 (1987).

Attack on witness not violation.

- State counsel's contested closing argument attacking the credibility of testimony that had been given by the defendant's psychiatric expert did not work a violation of O.C.G.A. § 17-8-76 as no reference was made to the possibilities of pardon, parole, or other clemency. McGill v. State, 263 Ga. 81, 428 S.E.2d 341 (1993).

O.C.G.A. § 17-8-76 prohibits only the argument that a defendant not serve the full amount of the defendant's sentence; the statute does not prohibit even making an argument in this regard concerning a witness. Thus, the defendant was entitled to cross examine the witness on the deal made with the prosecution to secure the witness's testimony in an effort to ascertain the witness's motive to testify, bias, or any interest in cooperating with the prosecution. Hernandez v. State, 244 Ga. App. 874, 537 S.E.2d 149 (2000).

Objection and motion for mistrial after prosecutor's argument ended was untimely.

- Defendant's objection and motion for mistrial, made after the prosecutor's improper closing argument that life did not mean life ended, were not timely and were not preserved for appeal. Cowart v. State, 294 Ga. 333, 751 S.E.2d 399 (2013).

Cited in Wilson v. State, 212 Ga. 157, 91 S.E.2d 16 (1956); McKuhen v. State, 216 Ga. 172, 115 S.E.2d 330 (1960); Terhune v. State, 117 Ga. App. 59, 159 S.E.2d 291 (1967); Hunt v. State, 133 Ga. App. 548, 211 S.E.2d 601 (1974); Willingham v. State, 134 Ga. App. 144, 213 S.E.2d 516 (1975); Biddy v. State, 138 Ga. App. 4, 225 S.E.2d 448 (1976); Smith v. State, 146 Ga. App. 428, 246 S.E.2d 442 (1978); Spraggins v. State, 243 Ga. 73, 252 S.E.2d 620 (1979); Washington v. State, 245 Ga. 117, 263 S.E.2d 152 (1980); Felker v. State, 252 Ga. 351, 314 S.E.2d 621 (1984); Jackson v. State, 173 Ga. App. 851, 328 S.E.2d 741 (1985); Willis v. Kemp, 838 F.2d 1510 (11th Cir. 1988); Owens v. State, 192 Ga. App. 335, 384 S.E.2d 920 (1989); Pitts v. State, 259 Ga. 745, 386 S.E.2d 351 (1989); Saunders v. State, 198 Ga. App. 666, 402 S.E.2d 542 (1991); Ross v. State, 231 Ga. App. 793, 499 S.E.2d 642 (1998); Bentley v. State, 262 Ga. App. 541, 586 S.E.2d 32 (2003); Daniel v. State, 292 Ga. App. 560, 665 S.E.2d 696 (2008), cert. denied, No. S08C1931, 2008 Ga. LEXIS 891 (Ga. 2008).

Grants of clemency.

- Statute is not limited to clemency granted by the State Board of Pardons and Paroles or the Governor, but clemency that may be granted by any authority authorized by law including clemency granted by the trial court in permitting the service of the sentence on probation. Cash v. State, 231 Ga. 285, 201 S.E.2d 625 (1973).

This section applies to those statements concerning clemency by the State Board of Pardons and Paroles or other executive officers. Henderson v. State, 234 Ga. 893, 218 S.E.2d 622 (1975).

O.C.G.A.

§ 17-8-76 covers parole in misdemeanor cases. - While this section makes argument by counsel before the jury that the defendant may be paroled or the defendant's sentence reduced a mandatory ground for mistrial, the terms of the section are broad enough to cover the action of the trial court in paroling a defendant in a misdemeanor case. Cain v. State, 113 Ga. App. 477, 148 S.E.2d 508 (1966).

Sending of blank probation sentence to jury room together with blank misdemeanor sentence.

- To send a blank probation sentence out to the jury room along with the blank misdemeanor sentence and as a part of it is indubitably a clear indication to the jury that it is at least possible, if not probable, that the defendant will not be sentenced to imprisonment, and is a fact which the jury might well take into illegal account in determining whether the defendant was guilty or innocent. This is the very thing which it was the intention of the General Assembly to prevent. Cain v. State, 113 Ga. App. 477, 148 S.E.2d 508 (1966).

Defendant is not permitted to refer to the possibility of parole in arguing to the jury, and later obtain a new trial based upon such argument, after an unfavorable verdict. Tamplin v. State, 235 Ga. 20, 218 S.E.2d 779, vacated in part on other grounds, 235 Ga. 774, 221 S.E.2d 455 (1975).

While O.C.G.A. § 17-8-76 benefits defendants in many cases, the statute's prohibition is not limited to cases where the prosecutor would argue parole in order to obtain a more severe sentence. Instead, the statute proscribes all use of parole in argument. Davis v. State, 255 Ga. 598, 340 S.E.2d 869, cert. denied, 479 U.S. 871, 107 S. Ct. 245, 93 L. Ed. 2d 170 (1986).

Defendant's parole eligibility is not, and ought not be, an issue considered by the jury in the sentencing phase of a death penalty case, and the jury should not be encouraged to add stipulations, conditions, or recommendations of no parole to the jury's verdict, nor should the jury be instructed, implicitly or explicitly, that a defendant's release on parole is a matter governed solely by the illimitable discretion of the Board of Pardons and Parole. Quick v. State, 256 Ga. 780, 353 S.E.2d 497 (1987).

Failure to object and reference to parole as precluding defendant from obtaining new trial.

- Defendant is not permitted to introduce evidence of a prior parole, fail to object to the state's argument to the jury of the possibility of parole, argue a reference to parole and later obtain a new trial based upon such argument after an unfavorable verdict. Tucker v. State, 245 Ga. 68, 263 S.E.2d 109, cert. denied, 449 U.S. 891, 101 S. Ct. 253, 66 L. Ed. 2d 119 (1980).

Argument of rules and regulations regarding time to be served before parole may be applied for.

- Court does not err in refusing to allow the defense attorney to argue to the jury the rules and regulations of the State Board of Pardons and Paroles regarding time served by the accused before the accused can make application for parole. Golden v. State, 213 Ga. 481, 99 S.E.2d 882 (1957).

Jury charge that probation sentence may be invoked for misdemeanor punishment.

- If the trial court charges that there could be a probation sentence invoked for misdemeanor punishment, there is no reversible error if the trial court later recharges the jury to disregard this instruction. Fraley v. State, 120 Ga. App. 427, 170 S.E.2d 729 (1969).

Instruction regarding revocation of parole.

- After the jury asks the court whether a prisoner who commits another felony after serving the minimum term fixed by the sentence and being paroled would be returned to serve the remainder of the sentence, and after the court tells the jury that the court cannot give the jury any instructions regarding a parole, but then proceeds to instruct the jury that the prison authorities have certain rules and regulations which the authorities have formulated and under which the authorities release a prisoner after the prisoner has served a minimum sentence provided the prisoner complies with certain conditions, and that the prison is thereafter permitted to serve the difference between the minimum and maximum sentence outside the confines of the prison, the latter portion of the instructions violates this section. Berry v. State, 107 Ga. App. 643, 131 S.E.2d 115 (1963).

Comments about possible probation.

- After the district attorney commented during closing argument: "Of course, he [Defendant] doesn't want to get up on the stand and say, 'Well, a little of these drugs were mine.' What he wants to admit to is that the misdemeanor - the probationary amount of marijuana was his because he figures, 'I'll get something . . .,' " it was held that although probation is a judicial, rather than an executive function, it is not a matter for the jury, and the trial court properly instructed the jury to disregard the offending remarks and directed the district attorney not to comment further in this regard, and that it could not be said as a matter of law that the defendant was harmed in any way by the trial court's denial of a mistrial. Steele v. State, 181 Ga. App. 695, 353 S.E.2d 612 (1987).

Commenting on inability, as well as ability, to make parole.

- Policy of not allowing argument or charge on matters concerning parole forbids comment with regard to the defendant's inability to make parole, as well as the defendant's ability to do so. Horton v. State, 249 Ga. 871, 295 S.E.2d 281 (1982), cert. denied, 459 U.S. 1188, 103 S. Ct. 837, 74 L. Ed. 2d 1030 (1983).

Meaning of life without parole.

- Trial court may charge the jury on the meaning of life without parole but is not required to charge the jury that life without parole "means what it says" or to discourage the jury from considering parole eligibility. McClain v. State, 267 Ga. 378, 477 S.E.2d 814 (1996), cert. denied, 521 U.S. 1106, 118 S. Ct. 2485, 138 L. Ed. 2d 993 (1997).

Prospect of parole in burglary prosecution.

- In burglary prosecution, motion for mistrial was properly denied after the prosecuting attorney commented on the policy of the State Board of Pardons and Paroles regarding early release of prisoners because sentences in noncapital felony cases are imposed by the trial judge and not the jury. Cave v. State, 171 Ga. App. 22, 318 S.E.2d 689 (1984).

Questions from jury about parole.

- If, and only if, the jury asks to be instructed about the possibility of parole, the court should mention the issue only to the extent of telling the jury in no uncertain terms that such matters are not proper for the jury's consideration. Quick v. State, 256 Ga. 780, 353 S.E.2d 497 (1987).

Violation of section not defective representation.

- Violation of O.C.G.A. § 17-8-76 by raising the issue of the possibility of parole, by itself, does not constitute deficient representation by defense counsel. Parker v. Turpin, 60 F. Supp. 2d 1332 (N.D. Ga. 1999), aff'd sub nom. Parker v. Head, 244 F.3d 831 (11th Cir. 2001).

Remarks that death penalty, rather than life sentence, should be imposed.

- When in a resentencing trial the remarks to the jury by the district attorney made no reference to parole of any nature, but were simply an attempt to convince the jury that the only appropriate punishment in the case was a sentence of death since, if a life sentence were imposed, the defendant would have another chance to do harm, even if in prison, such remarks were not improper. Redd v. State, 242 Ga. 876, 252 S.E.2d 383, cert. denied, 442 U.S. 934, 99 S. Ct. 2870, 61 L. Ed. 2d 304 (1979).

Comment that case was not death penalty case.

- Prosecutor's comment to the jury venire that the defendant's case was not a death penalty case did not violate O.C.G.A. § 17-8-76; the comment did not reflect upon the guilt or innocence of the defendant, and the defendant did not demonstrate harm from the statement. Stokes v. State, 281 Ga. 875, 644 S.E.2d 116 (2007).

Discussion of past parole in capital sentencing hearing not error.

- In the sentencing phase of a capital murder trial, the prosecutor's discussion of the defendant's past parole did not violate O.C.G.A. § 17-8-76. Tucker v. Kemp, 762 F.2d 1496 (11th Cir. 1985), cert. denied, 478 U.S. 1022, 106 S. Ct. 3340, 92 L. Ed. 2d 743 (1986).

Guilty plea exchange offer admissible at sentencing.

- After a mistrial was granted at the behest of the defendant, a retrial was not barred by principles of double jeopardy because the government had not intended to goad the defendant into moving for a mistrial by the inadvertent mistestimony of the state's private investigator. Mobley v. State, 262 Ga. 808, 426 S.E.2d 150 (1993), cert. denied, 510 U.S. 870, 114 S. Ct. 198, 126 L. Ed. 2d 156 (1993).

Failure to move for mistrial.

- After the defendant objected to improper argument and asked the court to instruct the jury to disregard the argument, but did not move for a mistrial, the trial court did not err by merely sustaining the objection and giving curative instructions. Hammond v. State, 260 Ga. 591, 398 S.E.2d 168 (1990).

O.C.G.A. § 17-8-76 does not require that a mistrial be declared even without a request. Hammond v. State, 260 Ga. 591, 398 S.E.2d 168 (1990).

When the defendant's counsel objected to an improper argument by the prosecutor based on O.C.G.A. § 17-8-76 and the trial court sustained the objection and instructed the jury accordingly, counsel's failure to move for a mistrial did not constitute ineffective assistance since the defendant was not deprived of a fair sentencing trial. Hammond v. State, 264 Ga. 879, 452 S.E.2d 745 (1995), cert. denied, 516 U.S. 829, 116 S. Ct. 100, 133 L. Ed. 2d 54 (1995).

Denial of motion for mistrial appropriate.

- Testimony to which the defendant objected came from the defendant's wife, who stated that during hostage negotiations the defendant mentioned a parole officer; such testimony did not address the possibility of pardon, parole, or other clemency for the instant charges and thus did not violate O.C.G.A. § 17-8-76. Freeman v. State, 252 Ga. App. 217, 555 S.E.2d 879 (2001).

Prosecutor did not make a specific reference to pardon, parole, or other clemency in the prosecutor's closing arguments to the jury in the defendant's trial for felony murder and malice murder; thus, there was no violation of O.C.G.A. § 17-8-76 that required a mistrial because the trial court gave a sufficient curative instruction. Curles v. State, 276 Ga. 237, 575 S.E.2d 891 (2003).

C.J.S.

- 23A C.J.S., Criminal Law, § 1713.

ALR.

- Prejudicial effect of statement or instruction of court as to possibility of parole or pardon, 12 A.L.R.3d 832.

Double jeopardy as bar to retrial after grant of defendant's motion of mistrial, 98 A.L.R.3d 997.