Compare to motion in arrest of judgment.

- Court of Appeals of Georgia could not consider the defendant's motion for a new trial as a viable procedural substitute for a motion in arrest of judgment. Kirkland v. State, 282 Ga. App. 331, 638 S.E.2d 784 (2006).

Ground of motion for new trial must be complete in itself, or rendered so by exhibit to motion. Barber v. State, 136 Ga. 831, 72 S.E. 248 (1911).

Grounds which cannot be understood without resort to brief of evidence.

- Insufficient grounds of motion which are incomplete and cannot be understood without resorting to brief of evidence fail to present any question for decision. Head v. State, 144 Ga. 383, 87 S.E. 273 (1915).

Insufficient objection.

- The objection raised below was not sufficient to direct the trial court's attention to the claimed error and was not stated with sufficient particularity to leave no doubt about the portion of the charge challenged or what the specific ground of challenge was; therefore, the issue was not preserved on appeal. Anderson v. State, 231 Ga. App. 807, 499 S.E.2d 717 (1998).

Trial court did not err in denying the defendant's motions for a mistrial because the defendant requested a curative instruction after the motion for a mistrial was denied, and the trial court instructed the jury to disregard a witness's comment, and since defense counsel did not renew the mistrial motion thereafter, the defendant could not complain of the failure to grant the motion. Reese v. State, 289 Ga. 446, 711 S.E.2d 717 (2011).

Generally, new trial is granted only as to matters foreign to record, such as misbehavior of party or juror. Register v. State, 12 Ga. App. 1, 76 S.E. 649 (1912), later appeal, 12 Ga. App. 688, 78 S.E. 142 (1913).

Judge who imposes sentence need not have presided at first trial.

- It is not error for different judge to preside and impose sentence than the one who presided at defendant's first trial. Gresham v. State, 149 Ga. App. 320, 254 S.E.2d 474 (1979).

Motions based on matters not appearing on face of record are in effect motions for new trial and are subject to all rules of law governing these motions. Leiter v. Arnold, 118 Ga. App. 108, 163 S.E.2d 235 (1968).

Approval of verdict necessary to finalize verdict when party moves for new trial on general grounds.

- Before a verdict becomes final the verdict should, when the losing party requires by motion for new trial, receive approval of the mind and conscience of trial judge. Until the judge's approval is given, the verdict does not become binding in a case when a motion for new trial contains general grounds. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

Georgia recognizes the extraordinary motion for new trial. House v. Balkcom, 562 F. Supp. 1111 (N.D. Ga. 1983), rev'd on other grounds, 725 F.2d 608 (11th Cir.), cert. denied, 469 U.S. 870, 105 S. Ct. 218, 83 L. Ed. 2d 148 (1984).

Cited in Holland v. Williams, 3 Ga. App. 636, 60 S.E. 331 (1908); Martin & Sons v. Bank of Leesburg, 137 Ga. 285, 73 S.E. 387 (1911); Western & Atl. R.R. v. Hughes, 278 U.S. 496, 49 S. Ct. 231, 73 L. Ed. 473 (1929); Hawes v. Roles, 49 Ga. App. 680, 176 S.E. 659 (1934); Candler v. Smith, 50 Ga. App. 667, 179 S.E. 395 (1935); Carter v. Powell, 57 Ga. App. 360, 195 S.E. 466 (1938); City of Macon v. Herrington, 198 Ga. 576, 32 S.E.2d 517 (1944); Salter v. Salter, 80 Ga. App. 263, 55 S.E.2d 868 (1949); Schwall v. McNeil, 232 Ga. 679, 208 S.E.2d 487 (1974); Watts v. Six Flags Over Ga., Inc., 140 Ga. App. 106, 230 S.E.2d 34 (1976); Smith v. Telecable of Columbus, Inc., 238 Ga. 559, 234 S.E.2d 24 (1977); Hancock v. Oates, 244 Ga. 175, 259 S.E.2d 437 (1979); Johnson v. State, 244 Ga. 295, 260 S.E.2d 23 (1979); Jackson v. Bekele, 152 Ga. App. 417, 263 S.E.2d 225 (1979); Murray v. State, 157 Ga. App. 596, 278 S.E.2d 2 (1981); Griggs v. State, 159 Ga. App. 219, 283 S.E.2d 77 (1981); Willis v. State, 249 Ga. 261, 290 S.E.2d 87 (1982); Stewart v. State, 165 Ga. App. 428, 300 S.E.2d 331 (1983); Malone v. State, 175 Ga. App. 379, 334 S.E.2d 222 (1985); Towns v. State, 185 Ga. App. 545, 365 S.E.2d 137 (1988); Griffin v. Peters, 262 Ga. 209, 415 S.E.2d 905 (1992); Bunch v. Mathieson Drive Apts., Inc., 220 Ga. App. 855, 470 S.E.2d 895 (1996); Prescott v. Builders Transp., Inc., 251 Ga. App. 280, 554 S.E.2d 241 (2001); Melcher v. Melcher, 274 Ga. 711, 559 S.E.2d 468 (2002); Brooks v. State, 281 Ga. 514, 640 S.E.2d 280 (2007); Walker v. State, 281 Ga. 521, 640 S.E.2d 274 (2007); Rivera v. State, 282 Ga. 355, 647 S.E.2d 70 (2007); State v. O'Neal, 292 Ga. App. 884, 665 S.E.2d 926 (2008); Laster v. State, 311 Ga. App. 360, 715 S.E.2d 768 (2011); Hipp v. State, 293 Ga. 415, 746 S.E.2d 95 (2013).

Discretion on grounds not otherwise provided for.

- Section gives trial court discretion regarding new trials on grounds not specifically provided for by law. Vaughan v. Car Tapes, Inc., 135 Ga. App. 178, 217 S.E.2d 436 (1975).

Discretion regarding extraordinary motions for new trial.

- In considering all applications for new trial made on extraordinary grounds, the trial judge is vested with sound legal discretion. Johnson v. State, 244 Ga. 295, 260 S.E.2d 23 (1979).

Discretion to grant or refuse new trials extends to second verdict. Morgan v. Lamb, 16 Ga. App. 484, 85 S.E. 792 (1915).

Judge who did not preside at trial has less discretion than presiding judge. Throgmorton v. Trammell, 90 Ga. App. 433, 83 S.E.2d 256 (1954).

Appellate court is bound to recognize trial court's discretion to grant or refuse new trials. Cargyle v. Belcher, 43 Ga. 207 (1871).

Appellate courts have no discretion regarding new trials.

- Law permits trial judge to refuse or grant new trials, in exercise of legal discretion, but it does not give appellate court any discretion in the matter; it can only grant new trials when errors of law have been committed, or when trial judge has abused the judge's discretion in refusing new trial. Prosser v. State, 60 Ga. App. 604, 4 S.E.2d 499 (1939); Holton v. State, 61 Ga. App. 654, 7 S.E.2d 202 (1940).

Discretion extends to passing upon alleged prejudice and bias of juror.

- Discretion of trial judge in passing upon alleged prejudice and bias of juror from conflicting evidence on motion for new trial will not be interfered with, unless the discretion is manifestly abused. Bradberry v. State, 170 Ga. 859, 154 S.E. 334 (1930).

When credibility of witnesses and weight of testimony involved.

- When credibility of witnesses and weight to be attached to testimony introduced is addressed solely to discretion of trial court in exercise of sound legal discretion, and where it appears that there was no abuse of discretion in a particular judgment, overruling motion for new trial must be affirmed. Wallace v. Wallace, 229 Ga. 607, 193 S.E.2d 832 (1972).

Trial judge presumed to exercise discretion required of the judge.

- When there is nothing in an order overruling a motion for new trial to indicate that the judge was dissatisfied with the verdict on discretionary grounds, but on the contrary, in overruling the motion on all grounds and refusing a new trial on all of them indicated the judge's approval, the appellate court will not say the judge abused the judge's discretion, since the trial judge is presumed to have known the judge's obligation was to exercise legal discretion and that in overruling motion is presumed to have exercised this discretion. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

Presumption that trial judge knew rule as to obligation to approve jury's verdict.

- In interpreting language of order overruling motion for new trial, appellate court must presume that trial judge knew rule as to obligation to approve jury's verdict devolving upon the judge, and that in overruling the motion the judge did exercise this discretion, unless language of order indicates to contrary and that court agreed to verdict against the judge's own judgment and against the dictates of the judge's own conscience, merely because the judge did not feel that the judge had the duty or authority to override findings of jury upon disputed issues of fact. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

First grant of new trial by judge not presiding throughout trial, generally not disturbed.

- First grant of new trial by judge who did not preside during whole trial will not be disturbed, unless evidence demanded verdict rendered. Throgmorton v. Trammell, 90 Ga. App. 433, 83 S.E.2d 256 (1954).

Failure to rule on motion under § 9-11-16. - Where record disclosed no direct ruling on motion pursuant to former Ga. L. 1968, p. 1104, § 5 (see O.C.G.A. § 9-11-16) or that such ruling was ever requested, although motion was filed, there was no reversible error in failing to consider the motion. International Ass'n of Bridge Ironworkers, Local 387 v. Moore, 149 Ga. App. 431, 254 S.E.2d 438 (1979).

Trial court errs in ignoring mandate of former Ga. L. 1968, p. 1104, § 5 (see O.C.G.A. § 9-11-16 requiring pretrial conference upon timely motion. International Ass'n of Bridge Ironworkers, Local 387 v. Moore, 149 Ga. App. 431, 254 S.E.2d 438 (1979).

When question of substantive fact (not decision of law) is submitted to judge for trial, without the intervention of a jury, the judge's decision as to the facts is as binding upon the parties as a verdict and may be set aside under the same rules as apply to the vacating of the finding of a jury. Sunn v. Mercury Marine, 166 Ga. App. 567, 305 S.E.2d 6 (1983).

Excluded evidence.

- Trial court did not err in denying the defendant a new trial, as a statement to police the defendant made was freely and voluntarily given upon the issuance of Miranda warnings, and the trial court properly excluded evidence of prior abuse committed against the victims by third parties on relevancy grounds, not under the rape shield statute, former O.C.G.A. § 24-2-3 (see now O.C.G.A. § 24-4-412). Segura v. State, 280 Ga. App. 685, 634 S.E.2d 858 (2006).

Evidence properly admitted.

- Trial court did not err in denying the defendant's motion to suppress the results of a blood test, as the notice given to the defendant by a state trooper under the implied consent law, O.C.G.A. § 40-5-67.1(a), was sufficiently accurate to permit the defendant to make an informed decision about whether to consent to testing, and the evidence failed to show that the defendant requested an independent test. Thus, the defendant was also properly denied a new trial on those grounds. Collins v. State, 290 Ga. App. 418, 659 S.E.2d 818 (2008).

Trial court did not err in denying the defendant's motion for mistrial when a police officer testified that the defendant admitted the defendant's involvement in another incident after the trial court had granted the defendant's motion in limine to exclude any evidence of the defendant's admitted involvement in another criminal matter because the officer's testimony referred to another incident and not another crime per se, and the defendant did not show that a mistrial was essential to preserve the defendant's right to a fair trial; any error was harmless in light of the overwhelming evidence of the defendant's guilt. Nyane v. State, 306 Ga. App. 591, 703 S.E.2d 53 (2010), cert. denied, No. S11C0420, 2011 Ga. LEXIS 538 (Ga. 2011).

Trial court did not err when the court denied the defendant's motion for new trial on the basis that the state proffered similar transaction evidence of an incident that occurred when the defendant was a juvenile because the trial court did offer to give a curative instruction to the jury, but trial counsel refused the curative instruction citing "strategy" as counsel's reasons; the trial court admonished the witness not to make any references to the juvenile court proceeding. Kitchens v. State, 289 Ga. 242, 710 S.E.2d 551 (2011).

Showing which permits new trial from adverse default judgment.

- When motion for new trial sets up facts from which it appears that the defendant's lack of knowledge of proceedings, which resulted in adverse default judgment was through no fault of the defendant's own; that the defendant had no knowledge of the proceedings; that person upon whom service was made had no authority from it to accept service of process; that the defendant had a meritorious defense which would, upon another trial of the case, lead to a contrary result; and that, after being informed of default judgment against it, it immediately used all diligence possible to bring true facts before the court, the motion presents such a state of facts that first grant of new trial by the trial judge does not constitute an abuse of discretion. Robinson v. Modern Coach Corp., 91 Ga. App. 440, 85 S.E.2d 826 (1955).

When defendant is ill, defendant must notify court and obtain continuance if time permits.

- When defendant had ample opportunity to inform the court of the defendant's sickness and obtain a continuance, but failed to do so, a new trial will not be granted on ground of the defendant's absence. Shivers v. State, 53 Ga. 149 (1874); Smith v. Fisher, 23 Ga. App. 245, 98 S.E. 96 (1919).

Defendant must exercise diligence in employing new counsel before trial.

- It is not error to refuse new trial at instance of defendant who could have, in exercise of diligence, been present with counsel, which the defendant had ample opportunity to employ, after withdrawal of counsel already representing the defendant. Diprima v. Hicks, 89 Ga. App. 231, 79 S.E.2d 8 (1953).

Remedy for erroneous failure to hold party in contempt of court.

- Motion for new trial is proper remedy for attacking judgment holding that party is not in contempt of court for failing to abide by alimony judgment. Berman v. Berman, 231 Ga. 216, 200 S.E.2d 870 (1973).

Jury misconduct warranting new trial.

- For misconduct of jury to be cause for new trial it must affirmatively appear that neither party complaining nor that party's counsel had any knowledge of such misconduct before the verdict. Schmidt v. Parrish, 63 Ga. App. 663, 11 S.E.2d 921 (1940).

Trial court did not abuse the court's discretion by denying the defendant's motion for mistrial because a juror's improper behavior was brought to the trial court's attention immediately after the behavior occurred, and upon learning of the improper behavior, the trial court examined the offending juror without delay and subsequently dismissed the juror from the jury; the remaining jurors were then examined and indicated by their response to the trial court's question that the jurors had not overheard any comments on the case by the offending juror, and thus, even though the alleged improper comment involved the ultimate issue in the case, the record reflected no evidence that the jury was tainted or that the defendant was harmed by the juror's misconduct. Brown v. State, 309 Ga. App. 511, 710 S.E.2d 674 (2011).

Use of perjured testimony at preliminary hearing.

- When perjured testimony is used at a preliminary hearing but not at trial, and when the appellant does not demonstrate that testimony contributed to the appellant's conviction, there is no abuse of discretion in the judge's refusing to grant the appellant's motion for new trial. Johnson v. State, 244 Ga. 295, 260 S.E.2d 23 (1979).

Insufficiency of petition cannot be reached by exception to sufficiency of evidence in motion for new trial. Huson v. Farmer, 53 Ga. App. 131, 185 S.E. 119 (1936).

Claim of incompetence of counsel.

- This catch-all section appears to be an appropriate vehicle for a claim that a new trial should be granted because counsel incompetently failed to timely move for a new trial on newly discovered evidence. House v. Balkcom, 562 F. Supp. 1111 (N.D. Ga. 1983), rev'd on other grounds, 725 F.2d 608 (11th Cir.), cert. denied, 469 U.S. 870, 105 S. Ct. 218, 83 L. Ed. 2d 148 (1984).

Court of appeals rejected the defendant's contention on appeal that the trial court prevented the defendant to fully develop an ineffective assistance of counsel claim at the hearing on a motion for a new trial, as the record was replete with evidence that the defendant was given a great deal of latitude and ample opportunity to develop the issue. Brown v. State, 285 Ga. App. 453, 646 S.E.2d 289 (2007), cert. denied, No. S07C1503, 2007 Ga. LEXIS 672 (Ga. 2007).

Trial court did not err in denying the defendant's motion for a new trial after the defendant was convicted of statutory rape because the defendant did not receive ineffective assistance of counsel; the trial court's determination that the defendant's trial counsel articulated a reasonable defense strategy was not clearly erroneous because counsel made a strategic decision that a specific line of investigation was unnecessary since the expected finding from the investigation would not have been helpful to the defense employed, and at trial, counsel presented evidence consistent with the defense strategy. Burce v. State, 299 Ga. App. 849, 683 S.E.2d 901 (2009).

Ineffective counsel established as to one charge but not as to other.

- Because the defendant presented sufficient evidence to show that trial counsel was ineffective in failing to stipulate to the defendant's felon status or to obtain a jury charge limiting the jury's consideration of the defendant's criminal history, such failures prejudiced the defendant's defense sufficiently to require a new trial on a charge of aggravated assault; however, given the defendant's admission to possessing a gun at the time of the altercation, no prejudice resulted to warrant reversal and a new trial on the possession of a firearm by a convicted felon conviction. Starling v. State, 285 Ga. App. 474, 646 S.E.2d 695 (2007).

Untimely objection.

- Because the defendant asserted for the first time in an out-of-time appeal that the trial counsel rendered ineffective assistance, but the defendant had failed to assert that claim at the trial court level, nor did the appellate counsel seek a new trial and raise that issue upon the out-of-time appeal request having been granted, the appellate court was barred from reviewing the issue; a claim of ineffective assistance had to be raised at the earliest possible time, which in this instance would have been through a new trial motion. Swan v. State, 276 Ga. App. 827, 625 S.E.2d 97 (2005).

Notice of appeal untimely.

- Supreme court was without jurisdiction to review the propriety or substance of the trial court's order denying the property owners' motion for new trial because the owners failed to timely file a notice of appeal in regard to that order, and the builders' post-judgment motions for fees under O.C.G.A. §§ 9-11-68 and9-15-14 did not toll the time for the owners' to appeal from the order denying the owners' motion for new trial; the trial court entered a final judgment on October 4, 2007, and the owners' filing of a motion for new trial tolled the time for appeal under O.C.G.A. § 5-6-38(a), but as soon as the trial court issued the court's order disposing of the motion for new trial, the thirty-day time period to file a notice of appeal began to run, and the owners' filed the motion for new trial on March 9, 2009. O'Leary v. Whitehall Constr., 288 Ga. 790, 708 S.E.2d 353 (2011).

Direct action in corporate dispute.

- Trial court did not err in denying plaintiffs' motion for a new trial or, alternatively, judgment notwithstanding the verdict, pursuant to O.C.G.A. §§ 5-5-25 and9-11-50, after a jury verdict was rendered in favor of defendant in a shareholder dispute arising from an agreement for purchase of the defendant's shares, as the direct action by the defendant on the counterclaim for breach of fiduciary duty/usurpation of corporate opportunity was properly brought under Thomas v. Dickson, 250 Ga. 772, 301 S.E.2d 49 (1983), because there were exceptional circumstances, despite the fact that the corporation did not fit the definition of a statutory close corporation under O.C.G.A. § 14-2-902. Telcom Cost Consulting, Inc. v. Warren, 275 Ga. App. 830, 621 S.E.2d 864 (2005).

Valid waiver by defendant.

- Because the state presented sufficient extrinsic evidence showing that the defendant knowingly and voluntarily waived a jury trial, even though this evidence conflicted with the defendant's later testimony at the hearing on the motion for a new trial, the trial court did not err in denying the defendant a new trial. Davis v. State, 287 Ga. App. 783, 653 S.E.2d 107 (2007).

Jury's discretion regarding damages does not limit trial judge's discretion.

- Broad discretion of jury as to amount of damages is not a limitation on the discretion of the trial judge to set aside the verdict when the judge thinks it unfair, unjust, contrary to evidence, excessive, or too small; but is a persuasive influence not lightly to be disregarded. Trial judge is not to substitute the judge's opinion for that of the jury, but merely sends the case for opinion of another jury. Hornsby v. Davis, 112 Ga. App. 419, 145 S.E.2d 633 (1965).

Rules governing jury's right to fix damages and courts' rights regarding new trials exist independently.

- Rules of law governing (1) right of jury to originally fix damages; (2) right of appellate court to grant new trial where verdict is alleged to be excessive or inadequate; and (3) right of trial judge to grant new trial when in the judge's discretion the judge thinks verdict unfair, unjust, contrary to evidence, excessive, or too small, exist apart from and independent of each other. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

Discretion in determination of legal adequacy of verdict for damages.

- Determination of question, as to whether verdict for damages is inadequate in legal sense, lies within sound discretion of trial court. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

Mere difference of opinion between appellate court and jury is insufficient.

- New trial should not be granted due to mere difference of opinion between appellate court and jury as to amount of recovery in action of tort for unliquidated damages. Something more must be disclosed to warrant interference when substantial damages have been returned. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

New trial regarding damages where unliquidated, tort damages involved.

- When action sounds in tort, for recovery of unliquidated damages, to measurement of which no fixed rule of law can be applied, appellate court ought not to set aside verdict of jury simply because damages are, in its opinion, inadequate or excessive, unless it clearly appears that verdict is so grossly inadequate or excessive as to afford evidence of bias, passion, or prejudice, or of mistake and oversight, in failing to take into consideration the proper elements of damage in assessing amount of recovery. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

When judge can conscientiously acquiesce in verdict, trial judge should approve verdict.

- If trial court can conscientiously acquiesce in amount awarded in verdict, though it may not exactly accord with the court's best judgment or though some other finding might seem somewhat more satisfactory to the judge's mind, and if the judge's sense of justice is reasonably satisfied, the judge should, in absence of some material error of law affecting trial, approve it, and an appellate court will uphold the judge in so doing, and will not say that the judge abused the judge's discretion. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

Abuse of discretion is prerequisite to interference with denial of new trial.

- When the trial judge refuses to order a new trial on the ground of inadequate damages in a tort action, the appellate court will interfere with that discretion only in the case of manifest abuse. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

Misconduct, mistake, surprise, and prejudice.

- Misconduct, mistake, surprise, and prejudice, and other grounds of failure, are provided against by expedience of new trial. Central of Ga. Ry. v. Harden, 113 Ga. 453, 38 S.E. 949 (1901).

Absence of party from providential cause unknown to the party's counsel is valid ground for motion for new trial. Hayes v. States, 91 Ga. 43, 16 S.E. 270 (1892).

General grounds did not warrant new trial.

- Because there was some evidence supporting the jury's verdict in favor of homeowners in the homeowners' class action against a private water system owner, the trial court did not err in denying the owner's motion for new trial and the owner's motion for a judgment notwithstanding the verdict on general grounds, and since the case involved disputed factual issues, the trial court properly allowed the jury to resolve those issues. Although the owner argued that the jury did not interpret the facts as the owner believes the jury should have, that argument presented no grounds that would allow the court of appeals to find error by the trial court in refusing to overturn the jury's verdict. Jones v. Forest Lake Vill. Homeowners Ass'n, 304 Ga. App. 495, 696 S.E.2d 453 (2010).

When accused is forced to trial only with advice of counsel then and there appointed.

- When counsel's absence is due to unintentional statement of solicitor (now district attorney) and accused is forced to trial with advice only of attorney then and there appointed by court, new trial will be granted. Johnson v. State, 1 Ga. App. 729, 57 S.E. 1056 (1907).

Illness of leading counsel for accused before trial concludes, so that accused is not able to give case the degree of care the case requires, is ground for new trial. Flanagan v. State, 106 Ga. 109, 32 S.E. 80, 71 Am. St. R. 242 (1898).

Ineffective assistance of counsel.

- Defense counsel's introduction of certified copies of convictions of state's witnesses to impeach the witnesses, without redacting the portion that implicated defendant as a participant in those crimes, which were identical or incidental to the crimes for which the defendant was on trial, was deficient performance by counsel as the main evidence against the defendant was the testimony from those witnesses and there was no physical evidence that linked the defendant to the crimes, the fact that the defendant was involved with those same defendants in prior similar crimes could have led the jury to conclude that the same pattern was being repeated, and there was a reasonable probability that, but for counsel's ineffective assistance, the outcome of the trial would have been different, such that the defendant was entitled to a new trial pursuant to O.C.G.A. § 5-5-25. Whitaker v. State, 276 Ga. App. 226, 622 S.E.2d 916 (2005).

Trial court committed reversible error when the court did not address a defendant's claim that defense counsel failed to support post-conviction remedies, deliberately foregoing a direct appeal for four years without the defendant's consent, because that ground was closely connected to the defendant's repeated effort to obtain appellate counsel and, as such, a hearing was required; moreover, the defendant was entitled to rely on the fact that a hearing on the motion was scheduled, and as a result, no action was taken to waive or abandon a right to a hearing. Jones v. State, 280 Ga. App. 287, 633 S.E.2d 806 (2006).

Upon the state's appeal pursuant to O.C.G.A. § 5-7-1(a)(7), as amended in 2005, the appeals court found that the defendant was properly granted a new trial based on ineffective assistance of trial counsel, given counsel's failure to interview any of the state's witnesses, present a viable defense to the charge of involuntary manslaughter, and adequately investigate whether the victim's death might have been an accident. State v. McMillon, 283 Ga. App. 671, 642 S.E.2d 343 (2007).

Because: (1) the defendant raised a colorable claim of ineffective assistance of trial counsel in a motion for a new trial based on counsel's failure to locate and present evidence of specific acts of violence by the alleged victim against third persons; (2) trial counsel's statement as to unsuccessfully attempting to locate these witnesses did not negate the possibility that a failure to do so constituted deficient performance; and (3) the defendant raised the ineffective assistance claim at the earliest practicable opportunity, albeit on appeal, the defendant asserted a colorable claim of ineffective assistance that required an evidentiary hearing on remand for the claim's resolution. Portilla v. State, 285 Ga. App. 401, 646 S.E.2d 277 (2007).

Trial court did not abuse the court's discretion in granting the defendant a new trial based on ineffective assistance of trial counsel as: (1) counsel's pretrial investigation was deficient; (2) counsel made no effort to investigate or to obtain the criminal records of the state's similar transaction witness before trial, and did not ask for more time or a continuance upon learning that the defendant did not have the records; (3) the defendant pointed out that the jury had doubts about the victim's testimony based on their verdict of guilt to sexual battery, as a lesser-included offense of child molestation, the crime the defendant was charged with committing; (4) there was evidence that the victim had reason to lie; (5) the charged incident was not reported until after the defendant's wife hired a divorce lawyer, who then arranged the first interview between the victim and investigators; and (6) given that the evidence against the defendant was not overwhelming, this impeachment evidence was particularly crucial. State v. Lamb, 287 Ga. App. 389, 651 S.E.2d 504 (2007), overruled on other grounds, O'Neal v. State, 285 Ga. 361, 677 S.E.2d 90 (2009).

Because the defendant's claim as to the pre-trial ineffective assistance of appointed counsel could not be resolved by the record on appeal, the denial of a new trial as to that claim was reversed, and the case was remanded for a hearing on that claim only. Robinson v. State, 288 Ga. App. 219, 653 S.E.2d 810 (2007).

Defendant, who was convicted of violating Georgia's Peeping Tom Statute, O.C.G.A. § 16-11-61, was entitled to a new trial since defendant's counsel failed to investigate the impact of defendant's multiple sclerosis, which might have been sufficient to create a reasonable doubt as to whether the defendant acted with the purpose of spying on the victim. Fedak v. State, 304 Ga. App. 580, 696 S.E.2d 421 (2010).

Trial court erred by denying the defendant's motion for new trial on the ground that trial counsel was ineffective by failing to move for a directed verdict as to a count of the indictment alleging that the defendant operated a motor vehicle as a habitual violator without a valid driver's license because the state failed to prove the charge alleged in that count; because the trial court would have been required to grant a motion for directed verdict, trial counsel was ineffective by failing to make such a motion. Murray v. State, 315 Ga. App. 653, 727 S.E.2d 267 (2012).

Defendant prisoner absent because of imprisonment.

- For rendition of guilty verdict to charge of murder in prisoner's absence, without the prisoner's consent, while the prisoner is in jail, motion for new trial is an available remedy. Frank v. State, 142 Ga. 741, 83 S.E. 645, 1915D L.R.A. 817, writ of error denied, 235 U.S. 694, 35 S. Ct. 208, 59 L. Ed. 429 (1914).

Right to be present violated.

- Because the defendant had a right to be present in the courtroom during voir dire of the jury, regarding some suspicious telephone calls that some had been receiving, in order to assist trial counsel in effectively examining the jurors regarding the jurors' abilities to be fair and impartial, and the defendant did not waive that right, the trial court erred in denying the defendant's motion for a new trial. Vaughn v. State, 281 Ga. App. 475, 636 S.E.2d 163 (2006).

Abridgment of right of cross-examination.

- When trial judge unduly abridges right of cross-examination, it is ground for a new trial. Strickland v. State, 6 Ga. App. 536, 65 S.E. 300 (1909).

Deprivation of right to opening and closing arguments.

- Right to opening and closing arguments is a material one, and when claimants are deprived of that right, the claimants are entitled to new trial. Smith v. Dickens, 42 Ga. App. 168, 155 S.E. 510 (1930).

Defendants were improperly denied the right to open and close final argument where defense counsel used a police officer's report to cast doubt on the officer's recollection and credibility, and did not read the police and child services agencies' reports into evidence when attempting to implicate other family members; while the evidence was sufficient to support the convictions, the evidence was not overwhelming, so the error was not harmless and defendants were entitled to a new trial. Thomas v. State, 262 Ga. App. 492, 589 S.E.2d 243 (2003).

Judge's expression of opinion on evidence.

- Any expression or intimation by judge of opinion as to what has or has not been proved renders grant of new trial necessary. Lovejoy v. State, 82 Ga. 87, 8 S.E. 66 (1888); Wright v. State, 5 Ga. App. 813, 63 S.E. 936 (1909).

Because the trial court's charge to the jury regarding the defendant's inculpatory statement amounted to plain error in expressing an opinion as to what had been proven, thereby violating O.C.G.A. § 17-8-57, a new trial was ordered on remand. Chumley v. State, 282 Ga. 855, 655 S.E.2d 813 (2008).

Improper comment on evidence by court was reversible error.

- On appeal from an aggravated assault conviction, because the trial judge improperly commented on the evidence in violation of O.C.G.A. § 17-8-57 by telling the jury that the parties agreed that there was no gun involved in the incident, the comment amounted to reversible error entitling the defendant to a new trial. Brimidge v. State, 287 Ga. App. 23, 651 S.E.2d 344 (2007).

Address to jury not authorized by evidence.

- When solicitor-general, (now district attorney) in address to jury, uses highly improper language not authorized by evidence or any fair deduction therefrom, and counsel for accused objects thereto and moves court to declare mistrial which is refused, new trial will be granted in interest of justice. Ficken v. State, 97 Ga. 813, 25 S.E. 925 (1895).

Error in jury instructions as to elements of offense charged.

- Defendant's convictions on two counts of criminal solicitation to commit a felony (murder) were reversed for a new trial as the trial court erred in failing to instruct the jury on the definitions of the words "felony" and "murder" as essential elements of the crime charged. Essuon v. State, 286 Ga. App. 869, 650 S.E.2d 409 (2007).

Error in admitting parol evidence.

- In an action involving the sale of land, because no adequate description of the property sought to be sold could be found within the four corners of the parties' final agreement, no exhibits were attached, and the words used in the contract did not provide a sufficient description of the land, the trial court erred in admitting parol evidence to provide a legally sufficient description of the property at issue; hence, the property owners' motions for directed verdict, judgment notwithstanding the verdict, and for a new trial were erroneously denied. McClung v. Atlanta Real Estate Acquisitions, LLC, 282 Ga. App. 759, 639 S.E.2d 331 (2006).

Error in admitting expert testimony.

- In a negligence action, the trial court erred by allowing the investigating police officer to give expert testimony about the color of the traffic light, as the color of the light was a question that average jurors could have answered for themselves, and because the color of the traffic light was the determining factor for assessing negligence, the officer's expert opinion on this issue likely influenced the jury's verdict; thus, based on such error, a new trial was ordered. Purcell v. Kelley, 286 Ga. App. 117, 648 S.E.2d 454 (2007).

Error in admitting similar transaction evidence.

- While the state presented sufficient evidence of the victim's age to support an assault charge under O.C.G.A. § 16-5-21(a)(1), because the trial court clearly erred in admitting evidence of two burglaries the defendant committed in 1998 as similar transactions to help prove the issue of identity, the defendant's aggravated assault, burglary, robbery, theft, and battery convictions were reversed; thus, the matter was remanded for a new trial. Usher v. State, 290 Ga. App. 710, 659 S.E.2d 920 (2008).

Counsel not ineffective when objection made.

- Based on the record, defendant's counsel clearly objected to the admission of similar transaction evidence, such that there was no ineffectiveness based on counsel's failure to object to the admission thereof for various purposes; denial of the defendant's new trial motion was accordingly proper. Boynton v. State, 317 Ga. App. 446, 730 S.E.2d 738 (2012), cert. denied, No. S13C0017, 2013 Ga. LEXIS 88 (Ga. 2013).

When sheriff enters jury room while case is under consideration.

- Jury cannot be put in charge of sheriff who is acting as prosecutor, and if sheriff goes into jury room while the jurors have case under consideration this is good ground for new trial. Griffin v. State, 5 Ga. App. 43, 62 S.E. 685 (1908).

When the jury acts from improper considerations, such as passion, partiality, or corruption, in rendering its verdict, new trial will be granted. Flanagan v. State, 106 Ga. 109, 32 S.E. 80, 71 Am. St. R. 242 (1898).

Disqualification or incompetence of juror not waived by knowledge.

- New trial is demanded when there is no doubt as to disqualification or incompetence of juror and when such disqualification has not been waived by knowledge thereof; a new trial is required for the reason that verdict is illegal and void. Ferguson v. Bank of Dawson, 53 Ga. App. 309, 185 S.E. 602 (1936).

Late knowledge of disqualifying relationship between juror and prosecutor.

- When it appears that the juror is related within a prohibited degree to the prosecutor, the law declares disqualification; and when such relation is unknown to an accused until after the verdict, a new trial will be granted. Harris v. State, 188 Ga. 745, 4 S.E.2d 651 (1939).

Juror in criminal case who is related, by blood or marriage, within sixth degree to prosecutor, ascertained according to rules of civil law, is disqualified; and such disqualification, which was unknown to the defendant or the defendant's counsel until after the verdict, or which could not have been ascertained by either of the defendant or defense counsel before the verdict by exercise of due diligence, is cause for new trial. Tatum v. State, 206 Ga. 171, 56 S.E.2d 518 (1949).

When disqualification of juror because of interest, is shown to be true without dispute, and the disqualification was not known to the movant or the movant's counsel until after the verdict and the movant could not have discovered the disqualification by exercise of due diligence, it is error for the court to refuse the movant's motion for new trial, and this is so even though the juror filed the affidavit that the juror was not prejudiced on that account. Ferguson v. Bank of Dawson, 53 Ga. App. 309, 185 S.E. 602 (1936).

New trial granted when defendant was absent by leave of court. Pioneer Mfg. Co. v. Callaway & Co., 76 Ga. 105 (1885).

New trial granted when key evidence was illegally obtained by police.

- Because no exigency existed to justify a search after the defendant was handcuffed and placed under the watchful eye of a police officer, and even assuming that the defendant was under arrest while being detained in the kitchen, a search of the defendant's bedroom which yielded a shotgun, found under the bed in the bedroom; a box of unspent shotgun shells, and some loose unspent shotgun shells, was not one incident to the arrest; thus, the defendant's possession of a firearm while a convicted felon conviction was reversed, and the case was remanded for a new trial in which the illegally-obtained evidence could not be introduced. Hicks v. State, 287 Ga. App. 105, 650 S.E.2d 767 (2007).

Husband did not waive right to jury trial.

- Trial court abused the court's discretion in denying a husband's motion for a new trial and to set aside the decree of divorce, as the husband's actions in showing up 45 minutes late in answering a calendar call did not amount to either an expressed or implied waiver of an asserted right to a jury trial, and the husband did not expressly consent to a bench trial. Walker v. Walker, 280 Ga. 696, 631 S.E.2d 697 (2006).

New trial granted when defendant physician was absent on urgent case. Powell v. Westmoreland, 49 Ga. 341 (1873).

New trial granted for error in refusing continuance. Bagley & Willet v. Shumate, 128 Ga. 78, 57 S.E. 99 (1907).

New trial granted when trial court failed to dismiss juror for cause.

- In a medical malpractice action, because the trial court abused the court's discretion by failing to dismiss a specific juror for cause based on that juror's partiality to doctors and intimations that the doctors should be given special protections, and despite the clear efforts of the court and defense counsel to rehabilitate the juror, the decedent's spouse was awarded a new trial. Sellers v. Burrowes, 283 Ga. App. 505, 642 S.E.2d 145 (2007).

New trial ordered when evidence improperly admitted.

- Because the seizure of cash found on the defendant's person was conducted based on a lawful arrest for a domestic violence act of assault, given information by the defendant's girlfriend, the girlfriend's obvious injuries, and the defendant's attempt to flee, the trial court properly denied suppression of the evidence; however, because the defendant maintained a reasonable expectation of privacy in the curtilage surrounding the defendant's residence, absent a warrant or exigent circumstances, suppression of cocaine found in that area was erroneously denied, and as such the defendant was erroneously denied a new trial. Rivers v. State, 287 Ga. App. 632, 653 S.E.2d 78 (2007).

In a negligent misrepresentation action filed by a business against its accountants, the business was entitled to a new trial as the trial court twice erred by admitting irrelevant and prejudicial evidence that: (1) the business was sold for $65.5 million in 2005, in order to establish the business's 1993 value, as the sale was too remote, the business had undergone physical changes since the sale, and the market conditions had also changed; and (2) the loans from a shareholder to purchase and operate the business were later reclassified as a shareholder investment of capital, and that the debt owed to the shareholder was forgiven in exchange for the issuance of additional stock in the business as such was irrelevant to the determination of whether the business was entitled to direct damages. Atlando Holdings, LLC v. BDO Seidman, LLP, 290 Ga. App. 665, 660 S.E.2d 463 (2008).

Improper and prejudicial argument by counsel is ground for new trial. Johnson v. State, 88 Ga. 606, 15 S.E. 667 (1891).

Improper comment on defendant's silence required new trial.

- Because the trial court erroneously commented on the defendant's refusal to make a post-arrest statement to police, and the error, absent a curative instruction, was not harmless or the result of inadvertence, the defendant's robbery by sudden snatching conviction was reversed; thus, the trial court erred in denying the defendant a new trial on those grounds. Wright v. State, 287 Ga. App. 593, 651 S.E.2d 852 (2007).

No improper comment on right to remain silent by informing jury of defendant's request to terminate interview.

- Trial court did not err in denying the defendant's motion for new trial because the state did not improperly comment on the defendant's pre-arrest right to remain silent; informing the jury of the defendant's termination of a custodial interview and invocation of the right to counsel did not amount to an improper comment on the right to remain silent warranting the reversal of the defendant's conviction. McClarin v. State, 289 Ga. 180, 710 S.E.2d 120 (2011), cert. denied, 132 S. Ct. 1004, 181 L. Ed. 2d 745 (2012).

No improper reference on right to remain silent.

- Trial court did not err in denying the defendant's motion for mistrial because a state witness's reference to the defendant's invocation of the right to remain silent was not directed to a particular statement or defense offered by the defendant, was made during a narrative explanation, and was promptly addressed with a thorough curative instruction by the trial court to the jury. DeLong v. State, 310 Ga. App. 518, 714 S.E.2d 98 (2011).

Trial court did not abuse the court's discretion in denying the defendant's motion for mistrial, which claimed that an investigator improperly commented on the defendant's right to remain silent, because the investigator's comment did not point at any specific defense offered by the defendant, and there was no indication in the record that the comment was intended to improperly influence the determination of the defendant's guilt or innocence or that the comment actually did so; the trial court promptly gave a thorough curative instruction to the jury. Williamson v. State, 315 Ga. App. 421, 727 S.E.2d 211 (2012).

Error in admitting erroneous impeachment evidence.

- In a personal injury suit filed by a car driver against a truck driver, because the trial court erred by admitting evidence of the car driver's prior DUI charges and testimony by the investigating officer about charges filed against the car driver in traffic court, and by excluding an admission by the car driver's treating emergency room physician, a new trial was ordered. Laukaitis v. Basadre, 287 Ga. App. 144, 650 S.E.2d 724 (2007).

New trial authorized when prejudgment interest on damages exceeded recovery amount authorized by evidence.

- Pursuant to instructions from trial court, while jury was authorized under O.C.G.A. § 13-6-13 to increase the $24,698.39 in breach of contract damages by adding prejudgment legal interest to damages at the rate of seven percent per annum simple interest from the date of the breach, jury's general verdict on the breach of contract claim in amount of $42,690.05 was in excess of any recovery authorized by the evidence; as a result, judgment entered on the verdict had to be reversed and the case remanded for new trial. Chacon v. Holcombe, 290 Ga. App. 767, 660 S.E.2d 851 (2008).

When person who had charge of jury was not sworn a new trial is required. Roberts v. State, 72 Ga. 673 (1884); Washington v. State, 138 Ga. 370, 75 S.E. 253 (1912).

Reading newspaper editorials which destroy freedom of mind of juror is cause for new trial. Styles v. State, 129 Ga. 425, 59 S.E. 249, 12 Ann. Cas. 176 (1907).

Lack of clarity in award.

- Given the lack of clarity as to the award of a single amount of damages for the breaches of fiduciary duty by both the son and the son's wife, and an award of $92,000 in attorney fees, a new trial was ordered. Lou Robustelli Mktg. Servs. v. Robustelli, 286 Ga. App. 816, 650 S.E.2d 326 (2007).

Erroneous jury instruction.

- Because the trial court erroneously instructed the jury as to a married couple's failure to wear their seatbelts as evidence of negligence or causation or to diminish any recovery, and such likely prejudiced them, a new trial was warranted. King v. Davis, 287 Ga. App. 715, 652 S.E.2d 585 (2007).

Failure to give instruction.

- Because there was some evidence, even from the state's witnesses, that showed that the defendant committed an act of following too closely, a traffic violation other than the more culpable offense of DUI, that may have caused the collision and resulting death, the trial court erred in failing to give the defendant's written request for an instruction on second-degree vehicular homicide; thus, the trial court erred in denying the defendant's motion for a new trial as to the first-degree vehicular homicide convictions. Brown v. State, 287 Ga. App. 755, 652 S.E.2d 631 (2007).

Defendant was entitled to a new trial because there was a reasonable possibility that the jury convicted the defendant of child molestation, O.C.G.A. § 16-6-4(a), in a manner not charged in the indictment since the trial court did not give a limiting instruction to ensure that the jury would find the defendant guilty in the specific manner charged in the indictment or instruct the jury not to consider child molestation as having occurred in another manner; when the jury expressed the jury's confusion by asking whether sexual conversations could constitute an immoral or indecent act, the trial court should have instructed the jury to limit the jury's consideration to determining whether the defendant was guilty of committing child molestation in the specific manner alleged in the indictment only. Smith v. State, 310 Ga. App. 418, 714 S.E.2d 51 (2011), cert. denied, No. S11C1731, 2012 Ga. LEXIS 249 (Ga. 2012).

Habeas action.

- Since the petitioner's conviction had already been reviewed on direct appeal, the habeas corpus court erred in ordering a new appeal, as the proper remedy would have been to order a new trial; consequently, remand was ordered for the entry of an order granting a new trial. White v. Smith, 281 Ga. 271, 637 S.E.2d 686 (2006).

Harmless error.

- When it affirmatively appears that error has not resulted in injury, no new trial will be granted therefor; and in determining whether error has resulted in injury, court may look to record as a whole. Shefton v. State, 52 Ga. App. 103, 182 S.E. 528 (1935).

Because the trial court's admission of prejudicial hearsay testimony regarding the victim's ministry ordination certificates was harmless error, given the overwhelming evidence of the defendant's guilt, a voluntary manslaughter conviction, as a lesser-included offense of murder, was upheld on appeal; hence, defendant's motion for a new trial was properly denied. Smith v. State, 283 Ga. App. 722, 642 S.E.2d 399 (2007).

Comments by judge during defense counsel's closing argument did not constitute plain error.

- Under a plain error analysis, there was no violation of O.C.G.A. § 17-8-57 in defendant's criminal trial because the trial judge's comments were limited in scope, were for the purpose of controlling the trial conduct and ensuring a fair trial, did not involve the issue of defendant's guilt or innocence, and did not express an opinion on the evidence as to what was proved or not; comments by the trial court judge during defendant's counsel's closing arguments were for the purpose of preventing misstatements to the jury concerning matters not in evidence and were not improper under O.C.G.A. § 17-8-75, and denial of defendant's new trial motion under O.C.G.A. § 5-5-25 was proper. Mathis v. State, 276 Ga. App. 205, 622 S.E.2d 857 (2005).

Comments by trial judge.

- Because the trial court did not make improper comments about the defendant's credibility, in violation of O.C.G.A. § 17-8-57, but only directed the defendant to answer the questions being asked, and expressed no opinion as to the truthfulness of the defendant's testimony, whether responsive or not, those comments did not warrant a new trial. Anthony v. State, 282 Ga. App. 457, 638 S.E.2d 877 (2006).

Trial court did not err in denying the defendant's motion for a new trial on the ground that the trial judge made comments which unduly highlighted and overemphasized the testimony of the DNA expert, in violation of O.C.G.A. § 17-8-57, as the comments were clearly directed at one juror to encourage that juror to stay awake and pay attention to the presentation of the evidence. Carruth v. State, 286 Ga. App. 431, 649 S.E.2d 557 (2007).

Actions involving the trial judge did not warrant new trial.

- Defendant was not entitled to a new trial merely because the order appointing the senior judge under O.C.G.A. § 15-1-9.1(b)(2) was defective as that issue was raised for the first time in the new trial motion, which precluded appellate review; moreover, a new trial was not warranted due to a comment made by the sentencing judge, that could have been interpreted as an expression of the trial court's disapproval of the defendant's conduct, and such did not amount to an outright statement of bias. Williams v. State, 290 Ga. App. 829, 661 S.E.2d 563 (2008).

Venue sufficiently established.

- Trial court did not err in denying the defendant's motion for new trial after the defendant was convicted of rape because venue was sufficiently established by a detective's testimony that the apartment complex where the crimes occurred was in DeKalb County, and even accepting the defendant's argument that the evidence only supported the conclusion that the victim could have been driven into another county before the rape occurred, that would not preclude a jury's conclusion that venue could be proper in DeKalb County; because the most definite testimony regarding the location of the crimes related to DeKalb County, the jury was authorized to find beyond a reasonable doubt that the rape could have occurred there. Bizimana v. State, 311 Ga. App. 447, 715 S.E.2d 754 (2011).

Standing.

- Father was not entitled to a new trial on a termination of rights petition filed by the Department of Family and Children Services, as the father failed to legitimate the child at issue, and hence, lacked standing to challenge the termination of parental rights order. In the Interest of J.L.E., 281 Ga. App. 805, 637 S.E.2d 446 (2006).

Defendant's absence, due to lack of diligence.

- It is no ground for new trial that the defendant, through lack of diligence, failed to be present upon call of case. Diprima v. Hicks, 89 Ga. App. 231, 79 S.E.2d 8 (1953).

Evidence properly admitted.

- Convictions for driving under the influence of drugs and to the extent that the defendant was a less-safe driver were upheld on appeal as supported by sufficient evidence, given that the defendant drove erratically, manifested signs of impairment, and had three drugs in the defendant's system; hence, when coupled with the fact that no evidence of tampering with the defendant's urine sample was submitted, the trial court did not abuse the court's discretion in admitting the sample and in denying the defendant's motion for a new trial. Kelly v. State, 281 Ga. App. 432, 636 S.E.2d 143 (2006).

Defendant's amended motion for a new trial was properly denied, and an aggravated assault conviction was upheld on appeal, as the trial court did not abuse the court's discretion in admitting three photographs depicting the victim's knife wounds; the photographs were not inadmissible merely because the photographs also showed alterations to the victim's body made by medical personnel. McRae v. State, 282 Ga. App. 852, 640 S.E.2d 323 (2006), cert. denied, 2007 Ga. LEXIS 200 (Ga. 2007).

Because evidence of the defendant's prior drug use, and history of crimes committed against family members fueled by the drug usage, were properly admitted as relevant to the crime's charged, despite incidentally placing the defendant's character in issue, convictions for both aggravated assault and simple assault were upheld on appeal; moreover, even if the trial court erred by admitting this motive evidence, no reversible error resulted which required a new trial. Jones v. State, 283 Ga. App. 812, 642 S.E.2d 887 (2007).

Defendant's motion for a new trial was properly denied, as the evidence presented against the defendant was legally sufficient, similar transaction evidence was correctly admitted, and the fact that portions of the methamphetamine found, as a result of a search warrant was not tested, was not reversible error. Perry v. State, 283 Ga. App. 520, 642 S.E.2d 141 (2007).

In a prosecution for armed robbery and robbery by intimidation, the trial court did not err in admitting a copy of the defendant's fingerprint card, pursuant to former O.C.G.A. §§ 24-3-14 and24-5-26 (see now O.C.G.A. §§ 24-8-803 and24-10-1003), despite the defendant's claim that the testifying witness lacked personal knowledge with regard to the circumstances or time of the creation or transmission of the fingerprint card, as the card itself showed that the card was created and transmitted at the time of the defendant's arrest, and was handled in the gathering agency's regular and routine course of business; hence, the defendant was properly denied a new trial. Tubbs v. State, 283 Ga. App. 578, 642 S.E.2d 205 (2007).

While the state conceded that the trial court's instruction on prior consistent statements was incorrect, a new trial was not required because the statements in question were admitted, not as prior consistent statements, but as admissions by the defendant, and were introduced into evidence by the state as substantive evidence of the defendant's guilt. Hampton v. State, 282 Ga. 490, 651 S.E.2d 698 (2007).

While the state conceded that the trial court's instruction on prior consistent statements was incorrect, a new trial was not required because the statements in question were admitted, not as prior consistent statements, but as admissions by the defendant, and were introduced into evidence by the state as substantive evidence of the defendant's guilt. Hampton v. State, 282 Ga. 490, 651 S.E.2d 698 (2007).

As sufficient evidence supported the defendant's convictions, and no reversible error resulted from either the admission of the defendant's two prior convictions for both impeachment and sentencing purposes or based on the jury instructions given or refused, a new trial on these issues was unwarranted. Newsome v. State, 289 Ga. App. 590, 657 S.E.2d 540 (2008), cert. denied, No. S08C1042, 2008 Ga. LEXIS 494 (Ga. 2008).

Trial court did not err in admitting evidence of the defendant's 1993 interference with government property conviction; a new trial was properly denied, because the evidence was properly admitted, not as substantive evidence of the offense at issue, but only as to the issue of credibility, providing support for the evidence's admission. Tate v. State, 289 Ga. App. 479, 657 S.E.2d 531 (2008), cert. denied, No. S08C0986, 2008 Ga. LEXIS 386 (Ga. 2008).

Counsel's failure to appear for trial or notify client is insufficient ground to authorize new trial. Haralson County Economic Dev. Corp. v. Hammock, 233 Ga. 381, 211 S.E.2d 278 (1974).

Contesting sufficiency of indictment.

- In a prosecution for burglary, because the variance between the indictment and the proof presented at trial did not misinform or mislead the defendant in any manner that resulted in surprise or impaired a defense, and the defendant could not be subjected to another prosecution for the same offense, the alleged variance was not fatal; as a result, the trial court did not err in denying the defendant's motions for a directed verdict or for a new trial. Chambers v. State, 284 Ga. App. 400, 643 S.E.2d 871 (2007).

Because the appeals court rejected the defendant's claim that the accusation failed to adequately charge venue, as a charge of DUI incorporated the words "Henry County" in the heading by using the phrase "as prosecuting attorney for the county and state aforesaid" in the body of the accusation, the trial court did not err in denying the defendant a new trial on that charge; but the court warned the state against such practice, as the solicitor could easily devise forms which stated with clarity the county in which the offense allegedly occurred, and thereby avoid the costs which resulted from having to repeatedly defend the type of challenge the defendant raised. Gordy v. State, 287 Ga. App. 459, 651 S.E.2d 471 (2007), cert. denied, No. S07C1866, 2008 Ga. LEXIS 128 (Ga. 2008).

Although the trial court might not have been presented with evidence that the defendant was in physical possession of a firearm during the hijacking of the victim's car, because the evidence that was presented authorized a finding that the defendant was a party to that crime, and that all those involved were joint conspirators, the trial court did not err in denying the defendant a new trial on grounds that the indictment charging possession of a firearm during the commission of a felony was at fatal variance with the proof presented at trial. Davis v. State, 287 Ga. App. 786, 653 S.E.2d 104 (2007).

Effective assistance of counsel.

- Defendant's motion for a new trial was properly denied because the defendant did not establish that the defendant received ineffective assistance of counsel. Defendant was aware of all of the charges against the defendant, the defendant did not inform counsel that there were jurors that the defendant wished to have stricken, it was sound trial strategy to not cross-examine the witness because the witness's testimony would have hurt the defendant, counsel did not request a charge on the voluntariness of the defendant's confession because it contradicted the defense of coercion, the evidence adequately demonstrated that the defendant was intoxicated when the defendant committed the assault and robbery, and the discrepancy in the victim's testimony regarding the car the perpetrator drove was not material since the defendant confessed to the crime. Blocker v. State, 265 Ga. App. 846, 595 S.E.2d 654 (2004).

On appeal from two child molestation convictions, the defendant was properly denied a new trial, because the admission of privileged testimony was not erroneous, and trial counsel was not ineffective by: (a) ignoring a consent order barring the state from introducing any written or oral admissions or statements the defendant made before and after a polygraph examination; (b) failing to assert the attorney-client privilege with respect to a polygraph expert's testimony; and (c) failing to adequately prepare a second polygraph expert who testified for the defense at trial; in fact, (1) counsel neither ignored the consent order nor performed deficiently when stipulating to the admission of the polygraph results; and (2) even assuming that counsel was deficient in failing to consult the defendant regarding the attorney-client privilege, the defendant failed to show a reasonable probability that the result would have been different in the absence of the second expert's cumulative testimony. Adesida v. State, 280 Ga. App. 764, 634 S.E.2d 880 (2006).

Defendant's ineffective assistance of counsel claims lacked merit, as the appeals court found that the trial counsel's tactical decision not to call the defendant's brother and sister-in-law as witnesses was strategic, and nothing in the record suggested that the defendant was denied a fair trial because trial counsel did not investigate the defendant's competency; hence, the trial court did not err in denying the defendant a new trial based on an ineffective assistance of counsel claim. Scott v. State, 281 Ga. App. 106, 635 S.E.2d 582 (2006).

In denying the defendant a new trial, the trial court expressly found that trial counsel was not ineffective, specifically finding that: (1) counsel's decision not to provide the defendant with a copy of the discovery was based on the fact that the defendant could not read and was going to rely on someone else at the jail to read the documents, and that counsel was concerned that showing the discovery to another inmate might produce a "snitch;" and (2) prior to trial, counsel spent two and a half hours with the defendant going over the state's evidence. Hence, the trial court concluded that counsel had a good reason for not giving the defendant a copy of the discovery, and that counsel was exceptionally effective in representing the defendant's interests. White v. State, 281 Ga. 20, 635 S.E.2d 720 (2006).

Trial court did not err in denying the defendant a new trial on grounds that the defendant's trial counsel was ineffective, as the defendant failed to show that the outcome of the trial would have been different if counsel would have: (1) filed a motion for funds to hire an expert on the reliability of cross-racial eyewitness identification and proffer what the testimony of this expert would have been; (2) verified that funds had been withdrawn from the respective ATM machines on the date of the crime or ascertain whether surveillance cameras might have refuted the state's evidence that the defendant was in the carjacked vehicle; and (3) proffered favorable testimony that the defendant alleged could have been provided by the two victims suggesting complicity. Pringle v. State, 281 Ga. App. 230, 635 S.E.2d 843 (2006).

As the jury could have found the defendant guilty after listening to the state's witnesses, a psychologist testimony regarding the defendant's competency did not influence the outcome of the trial; hence, defense counsel's failure to object to the psychologist raising the issue about the defendant's mental health was harmless, part of counsel's reasonable trial strategy, and did not amount to the ineffective assistance of counsel entitling the defendant to a new trial. Griffin v. State, 281 Ga. App. 249, 635 S.E.2d 853 (2006).

In a prosecution for trafficking in cocaine, the trial court did not err in refusing to instruct the jury on the affirmative defense of entrapment, as: (1) sufficient evidence was presented that the defendant voluntarily committed the offense upon being given the opportunity to do so; and (2) no evidence was presented to show that the informant employed undue persuasion, incitement or deceit to induce the defendant into selling drugs; thus, the defendant's claim of ineffective assistance of counsel for failing to present evidence to support an entrapment defense was rejected and did not warrant a new trial. Campbell v. State, 281 Ga. App. 503, 636 S.E.2d 687 (2006).

In a prosecution for armed robbery, possession of a firearm during the commission of a felony, and obstruction, the defendant was not entitled to a new trial based on allegations that trial counsel was ineffective, as: (1) a jury charge on the testimony of an accomplice was not required; and (2) in light of trial counsel's cross-examination of the accomplice, the court's credibility charge, as well as the overwhelming evidence of the defendant's guilt, a leniency instruction was unnecessary. Hayes v. State, 281 Ga. App. 749, 637 S.E.2d 128 (2006).

In a prosecution for rape, kidnapping, and sodomy, the defendant did not receive the ineffective assistance of trial counsel merely because counsel failed to impeach the victim's credibility with evidence concerning a 1996 drug arrest, as: (1) the evidence was irrelevant to the circumstances surrounding the defendant's attack on the victim; and (2) the victim never opened the door to an issue of good character; hence, the defendant failed to show that a new trial should have been ordered. Pierce v. State, 281 Ga. App. 821, 637 S.E.2d 467 (2006).

Counsel's trial strategy in failing to object to hearsay from a non-testifying codefendant was supported by a decision that the testimony was more beneficial than prejudicial, and that the complained-of testimony was necessary to refute the state's theory that the gun admitted against the defendant could have thrown from the defendant's car; moreover, because the defendant failed to show that but for the admission of that evidence, the outcome of the trial would have been different, the trial court did not err in denying the defendant a new trial on this ground. Ross v. State, 281 Ga. App. 891, 637 S.E.2d 491 (2006).

Appellate court rejected the defendant's contention that trial counsel was ineffective: (1) in failing to investigate another molestation charge filed against the defendant; (2) by failing to interview the defendant's mother; (3) in not investigating the state's failure to obtain a warrant to determine whether the defendant's computer contained or could access pornographic material; (4) by referring to the defendant's prior criminal record on DUI charges; (5) in introducing several letters from the defendant's daughter into evidence; and (6) by characterizing the defendant in closing argument as guilty of drunken and boorish behavior, as the trial court was authorized to believe counsel's testimony regarding counsel's sufficient preparation for trial, and finding that without a proffer of evidence concerning the defendant's computer, the defendant could not show a reasonable probability that the results of the proceedings would have been different; hence, the trial court did not err in denying the defendant a new trial on grounds that trial counsel was ineffective. Carey v. State, 281 Ga. App. 816, 637 S.E.2d 757 (2006).

Trial court properly denied the defendant's motion for a new trial, which alleged the ineffective assistance of counsel, as mere allegations, without evidence explaining how trial counsel's alleged failures affected the outcome of the trial, could not support the claims and counsel's trial tactics amounted to trial strategy. Slaughter v. State, 282 Ga. App. 276, 638 S.E.2d 417 (2006).

Because there was nothing in the record to rebut the presumption that trial counsel had legitimate reasons for the strategic decisions made during the trial, specifically relating to concerns regarding a juror's dismissal, the state's examination of the victim's mother, the refreshment of the state's witness's recollection, and closing argument, a motion for a new trial was properly denied on these grounds. Hunter v. State, 282 Ga. App. 355, 638 S.E.2d 804 (2006).

Because the defendant failed to show how trial counsel was ineffective in failing to make objections, failing to file a futile motion to suppress, and failure to object to the admission of evidence, but instead counsel's actions were deemed part of a reasonable trial strategy, the ineffectiveness claim failed and the defendant was not entitled to a new trial on that count. Opio v. State, 283 Ga. App. 894, 642 S.E.2d 906 (2007).

Defendant failed to show ineffective assistance of defense counsel for failure to pursue a self-defense or justification defense with regard to the shooting death of the victim since at the hearing on the motion for new trial trial counsel testified that, given the state of the evidence, trial counsel did not consider a self-defense strategy to be viable, and would be at odds with the strategy chosen, namely to seek a conviction for the lesser crime of voluntary manslaughter. Trial counsel's decision not to pursue inconsistent defenses was made in the exercise of reasonable professional judgment and was reasonable since the evidence from three eye-witnesses showed that the defendant went to the defendant's car and retrieved a pistol, shot the unarmed victim when the victim was retreating, and then went to where the victim lay and shot the victim several more times. Taylor v. State, 282 Ga. 693, 653 S.E.2d 477 (2007).

Because the defendant failed to present the testimony of either trial counsel to support a claim of ineffective assistance of counsel, and thus, the record of the new trial hearing was silent as to what actions were taken by counsel to prepare for the plea or to investigate the ramifications of the previous plea, the trial court did not err in denying the defendant's withdrawal of the plea. Jackson v. State, 288 Ga. App. 742, 655 S.E.2d 323 (2007).

Defendant's ineffective assistance of counsel claims were without merit, because counsel: (1) adequately explained the decision not to call the defendant's spouse; (2) adequately met with the defendant to discuss the trial strategy and regarding the defendant's decision to waive the right to a jury trial; and (3) had reason to decline objection to the admission of an audio recording of the colloquy between the officers and the defendant at the scene, as that decision supported counsel's trial strategy. Thus, the defendant was not entitled to a new trial based on those claims. Defrancisco v. State, 289 Ga. App. 115, 656 S.E.2d 238 (2008).

Because trial counsel was not ineffective in failing to point out a purported discrepancy in the evidence to the jury, failing to investigate alleged evidence tampering, and failing to object to the inclusion of a charge on mutual combat in the jury instructions, or reserve objections to the instructions, the trial court did not err in denying the defendant a new trial. Sanders v. State, 283 Ga. 372, 659 S.E.2d 376 (2008).

Trial counsel was not ineffective for failing to request a continuance to review evidence and have the evidence tested by the defendant's own expert because the defendant presented no evidence at the motion for new trial hearing to support the defendant's bald assertion that there was a reasonable probability that the outcome of the proceeding would have been different had counsel sought a continuance or independent expert testing. Walker v. State, 288 Ga. 174, 702 S.E.2d 415 (2010).

Trial court did not err in denying the defendant's motion for new trial on the ground that the defendant's trial counsel was ineffective since counsel's motion for continuance did not comply with O.C.G.A. § 17-8-25 because the witness in question had not been subpoenaed and, thus, counsel could not comply with the statute; the defendant did not show that the trial court's denial of the motion for continuance was reversible error. Presley v. State, 307 Ga. App. 528, 705 S.E.2d 870 (2011).

Trial court did not err by rejecting the defendant's claim of ineffective assistance of trial counsel on a motion for mistrial because the defendant failed to demonstrate that the defendant was deprived of effective assistance of counsel. Although the defendant argued that the defendant's trial counsel failed to ask prospective jurors certain questions during voir dire, the defendant made no assertion as to what answers any prospective juror would have given had he or she been asked any of those questions or as to what significance any such answer would have had. The defendant could not show prejudice with regard to the defendant's assertions that counsel failed to fully investigate the case and call essential witnesses because counsel made no proffer as to what a thorough investigation would have uncovered or what the essential witnesses would have said, and the defendant failed to show a reasonable probability that an objection or motion for mistrial related to a detective's testimony would have changed the outcome of the defendant's trial. Ware v. State, 307 Ga. App. 782, 706 S.E.2d 143 (2011).

Defendant failed to establish a claim of ineffective assistance of counsel due to counsel's failure to seek a mistrial after successfully objecting to a witness's testimony that the defendant told the witness that "he would have a shoot-out with police before he ever went back to jail" on the ground that the witness's response placed the defendant's character in evidence because even if counsel's failure to request a mistrial were deemed deficient, no mistrial would have been granted as a nonresponsive answer that impacted negatively on a defendant's character did not improperly place the defendant's character in issue, and another witness had already testified without objection that the witness did not call the police on another occasion because the defendant had told that witness "if the cops came he would come out shooting". Because failure to pursue a futile motion did not constitute ineffective assistance, the defendant failed to establish a claim of ineffective assistance of counsel. Billings v. State, 308 Ga. App. 248, 707 S.E.2d 177 (2011).

Trial court did not err in denying the defendant a new trial on the ground that the defendant's trial counsel's failure to object to the prosecutor's statement during closing argument amounted to ineffective assistance because the defendant could not demonstrate that the deficiency in trial court's performance prejudiced the defendant; the evidence of the defendant's guilt was overwhelming and there was no reasonable probability that the outcome of the defendant's trial would have been more favorable had trial counsel objected, even successfully, to the prosecutor's statement in argument. Jones v. State, 288 Ga. 431, 704 S.E.2d 776 (2011).

Trial court did not abuse the court's discretion in denying the defendant's motion for a new trial on the ground of ineffective assistance of counsel because the defendant did not show that: (1) the defense counsel was ineffective in failing to adequately investigate the case or meet with the defendant prior to trial; (2) the defense counsel was ineffective in failing to interview and cross-examine the prosecution's witnesses as the defendant did not establish a reasonable probability that further interviews and cross-examination would have resulted in a different outcome at trial; (3) the defense counsel was ineffective in failing to file a motion for immunity from prosecution/plea in bar pursuant to O.C.G.A. § 16-3-24.2 based upon the defendant's claim of self-defense as it was a matter of trial strategy and the defendant could not demonstrate how the failure to pursue such a claim harmed the defendant; (4) the defense counsel was ineffective in failing to request a jury charge on the use of force in defense of habitation; and (5) the defense counsel was ineffective in failing to test the thoroughness and good faith of the state's investigation. Smith v. State, 309 Ga. App. 241, 709 S.E.2d 823 (2011), cert. denied, No. S11C1266, 2011 Ga. LEXIS 954 (Ga. 2011).

Trial court did not err in denying the defendant's motion for new trial because the trial court properly rejected the defendant's claim that trial counsel was ineffective for failing to introduce into evidence two medical evaluation documents, which the defendant alleged would have contradicted statements witnesses gave to the police; it was mere speculation that the witnesses' statements were inconsistent with the medical reports. McClarin v. State, 289 Ga. 180, 710 S.E.2d 120 (2011), cert. denied, 132 S. Ct. 1004, 181 L. Ed. 2d 745 (2012).

Defendant was not entitled to a new trial on the basis that trial counsel was ineffective because the defendant failed to establish that there was a reasonable probability that, but for counsel's alleged deficiencies, the outcome of the trial would have been different; even assuming that trial counsel performed deficiently by failing to object to certain testimony, the defendant failed to show a reasonable probability that the outcome of the trial would have been different, and even if trial counsel had filed a motion to suppress certain evidence and that evidence had been excluded, the remaining evidence adduced at trial was overwhelming. Lowe v. State, 310 Ga. App. 242, 712 S.E.2d 633 (2011).

Because the defendant made no showing that the defendant's wife lacked authority to consent to a search of the marital residence, because the trial attorney's strategic decisions not to pursue a defense or to request a jury poll were not patently unreasonable, and because the defendant's claims were not waived by appellate counsel, the defendant failed to show that the defendant was entitled to a new trial based on counsels' alleged ineffectiveness. Davis v. State, 311 Ga. App. 699, 716 S.E.2d 710 (2011).

Defendant was not denied effective assistance of counsel due to trial counsel's failure to renew a motion for mistrial after the trial court gave a curative instruction because the defendant failed to demonstrate prejudice; trial counsel had twice moved for a mistrial, which the trial court denied, and the trial court did not abuse the court's discretion in giving the curative instruction, which preserved the defendant's right to a fair trial. Sanders v. State, 290 Ga. 445, 721 S.E.2d 834 (2012).

Trial court did not err in denying the defendant's motion for new trial on the grounds of ineffective assistance of counsel because any error in excluding a witness's testimony regarding the victim's allegedly prior false accusations of sexual abuse was harmless; the defendant could not show that trial counsel was deficient in failing to investigate a matter of which counsel was unaware of at the time. Ellis v. State, 316 Ga. App. 352, 729 S.E.2d 492 (2012).

Trial court committed no error in denying the defendant's motion for new trial because the defendant could not show that trial counsel was deficient for declining to ask for a contemporaneous limiting instruction; trial counsel did not ask for a contemporaneous limiting instruction on similar transaction evidence since counsel wanted to try to draw the least amount of attention to it as possible, and the trial court gave a limiting instruction on similar transaction evidence in the court's final charge to the jury. Sims v. State, 317 Ga. App. 420, 731 S.E.2d 105 (2012).

Not knowing case was set for trial.

- Mere fact that counsel and clients had no knowledge that case was on calendar and set for trial is not in itself sufficient to support grant of new trial. Southern Ariz. Sch. for Boys, Inc. v. Morris, 123 Ga. App. 67, 179 S.E.2d 548 (1970).

Not knowing when case would be called.

- Mere fact that plaintiff's counsel did not know exactly when case would be called, and so was not present to ask for continuance resulting in dismissal, was not ground for new trial, nor was the fact that counsel was trying the case in another court. Georgia v. Handshakers, Inc., 140 Ga. App. 641, 231 S.E.2d 575 (1976).

Refusal to allow defendant to dismiss counsel did not warrant new trial.

- Because the record showed that the defendant never unequivocally asserted a right to self-representation, the trial court did not err in refusing to allow the defendant to dismiss trial counsel; thus, the trial court properly denied the defendant a new trial. Pulliam v. State, 287 Ga. App. 717, 653 S.E.2d 65 (2007), cert. denied, 2008 Ga. LEXIS 159 (Ga. 2008).

Counsel not ineffective.

- Because defense counsel's trial strategy, tactics, and tactical errors did not constitute ineffective assistance of counsel and because the defendant did not establish that the deficiency prejudiced the defense, the trial court's denial of defendant's motion for a new trial was not clearly erroneous. Ford v. State, 272 Ga. App. 798, 613 S.E.2d 234 (2005).

Defendant was not erroneously denied a new trial on grounds that trial counsel was ineffective, as the evidence, via trial counsel's testimony, showed that: (1) counsel, after gathering the defendant's medical history and interviewing the defendant's medical provider, did not believe the defendant was insane; and (2) counsel, after consulting with the defendant and gaining an approval, made a strategic decision not to pursue a mental health defense, opting instead to pursue a claim of self-defense. Radford v. State, 281 Ga. 303, 637 S.E.2d 712 (2006).

Defendant's ineffective assistance of counsel claim lacked merit, and did not warrant a new trial, as the defendant failed to show that trial counsel's actions, in which counsel also represented the codefendant who was the passenger in the vehicle the defendant was driving, prejudiced the defense; further, counsel's actions did not slight the defense of one defendant for another, the principles contained in charges on mere presence and equal access were adequate, counsel was prepared for trial, and the prosecutor's closing argument statements were not prejudicial so as to warrant an objection. Garvin v. State, 283 Ga. App. 242, 641 S.E.2d 176 (2006).

In a murder prosecution, the appeals court rejected the defendant's claims that trial counsel was ineffective in failing to pursue a battered woman syndrome defense and by failing to request a jury instruction on the lesser offense of voluntary manslaughter, as: (1) the evidence showed that the defendant, after consultation with counsel, instead chose to focus exclusively on the defense of justification; (2) the evidence did not support a voluntary manslaughter charge; and (3) the defendant did not want the trial court to charge on voluntary manslaughter. Moreover, at the new trial hearing, because appellate counsel did not ask trial counsel about the decision not to seek the manslaughter instruction, that decision was presumed to be strategic. Ballard v. State, 281 Ga. 232, 637 S.E.2d 401 (2006).

Defendant's ineffective assistance of counsel claims lacked merit, as: (1) the defendant failed to give any specific examples of prejudice; (2) the defendant, after consultation with counsel, testified freely and voluntarily; and (3) any objections counsel might have made to a videotaped statement would have lacked merit, as those statements contained evidence of prior difficulties, admissible without notice and without the need for a pretrial hearing; hence, the defendant was not entitled to a new trial on those grounds. Campbell v. State, 282 Ga. App. 854, 640 S.E.2d 358 (2006).

Because the defendant failed to show that: (1) trial counsel's performance was deficient in failing to call a forensic interviewer as a witness, and that failure prejudiced the defense and would have changed the outcome of the trial; (2) trial counsel's decision not to object to the properly admitted testimony from a forensic interviewer as to the opinion rendered on the victim's intelligence and reactions to certain questions which were consistent with abuse was not ineffective; and (3) the defendant could not show that the failure to call the trial attorney affected the outcome of a motion for a new trial, the defendant's ineffective assistance of counsel claims against both trial and appellate counsel lacked merit; thus, the trial court did not err in denying the defendant's motion for a new trial. Freeman v. State, 282 Ga. App. 185, 638 S.E.2d 358 (2006).

Appeals court rejected the defendant's ineffective assistance of counsel claims regarding the admission of a tape-recorded statement and claim that trial counsel should have demanded a Jackson-Denno hearing or a hearing to determine the admissibility of a similar transaction, as: (1) proper res gestae evidence could be admitted without having to follow the rules regarding prior similar transactions; (2) assuming that trial counsel should have demanded a Jackson-Denno hearing, the defendant failed to show how a hearing would have altered the outcome of the trial; and (3) at a hearing on the motion for a new trial, the defendant failed to introduce any evidence whatsoever to suggest that the statement made was involuntary. White v. State, 282 Ga. App. 286, 638 S.E.2d 426 (2006).

Because the defendant failed to support an ineffective assistance of counsel claim with affirmative evidence showing an infringement of rights or a procedural irregularity in the taking of a prior guilty plea, and the defendant failed to show that an objection by trial counsel to the introduction of the prior plea would have been successful, a claim that trial counsel was ineffective, thus warranting a new trial, lacked merit. Lattimore v. State, 282 Ga. App. 435, 638 S.E.2d 848 (2006).

Defendant was not entitled to a new trial based on claims of ineffective assistance of trial counsel as the only evidence offered to support this claim was the defendant's own hearsay testimony as to what the desired witnesses were expected to testify to at trial, and such evidence was insufficient; further, the defendant failed to show that counsel's decision to forgo calling such witnesses was unreasonable. Brigman v. State, 282 Ga. App. 481, 639 S.E.2d 359 (2006).

Trial court did not err in denying the defendant a new trial on grounds that trial counsel was ineffective, specifically as to issues of the defendant's competency to stand trial and getting the defendant to agree to a bench trial, as: (1) the record showed that defense counsel adequately pursued the competency issue, filed pre-trial discovery motions, obtained an order for defendant's mental evaluation, hired a forensic psychologist to evaluate the defendant's competency, presented and examined witnesses, cross-examined the state's witnesses, and made a closing argument; (2) even if the court were to assume that trial counsel's failure to interview the various doctors constituted deficient performance, the defendant failed to show any prejudice resulting therefrom; and (3) the defendant failed to show that trial counsel was deficient regarding the decision to pursue a bench trial rather than a jury trial, given that the trial court found that the defendant agreed that the case should be submitted to the court on stipulated facts, rather than to the jury. Wafford v. State, 283 Ga. App. 154, 640 S.E.2d 727 (2007).

Defendant's trial counsel was not ineffective in failing to object to specifically challenged testimony presented against the defendant, and a new trial was not warranted based on that ineffectiveness, as: (1) counsel explained at the hearing on the new trial motion that objections were not made for strategic and tactical reasons, so as to not draw attention to some of the testimony; (2) some of the testimony hurt the credibility of the state's witnesses while enhancing the credibility of the defense theory; (3) counsel attempted to engender sympathy for the defendant; and (4) the defendant failed to show that the outcome of the trial would have been different if the objections would have been made. Walls v. State, 283 Ga. App. 560, 642 S.E.2d 195 (2007).

Because trial counsel was adequately prepared for trial, effectively engaged in plea negotiations, made timely objections, properly handled the defense, was not required to make meritless objections, and the defendant ultimately failed to show a reasonable probability that, but for counsel's alleged errors, the result of the trial would have been different, counsel was found to not be ineffective; thus, the defendant was not entitled to a new trial. Garrett v. State, 285 Ga. App. 282, 645 S.E.2d 718 (2007).

On retrial on one count of child molestation and two counts of aggravated child molestation, the defendant was not entitled to a new trial on grounds that trial counsel was ineffective in admitting notes generated by a forensic evaluator who interviewed the child victim, as the defendant had previously been found guilty in the first trial in which the notes were not introduced. Mewborn v. State, 285 Ga. App. 187, 645 S.E.2d 669 (2007).

Defendant's trial counsel was not ineffective in failing to obtain a mental evaluation of the defendant prior to trial to determine criminal responsibility, absent record evidence that counsel had advance notice of any mental health problems, and further discussions with the defendant's family would not have revealed a history of significant mental illness; hence, the defendant was not entitled to a new trial on those grounds. Breland v. State, 285 Ga. App. 251, 648 S.E.2d 389 (2007).

Because a transcript of the hearing on the defendant's motion for new trial was not included in the record on appeal, and absent any other proffer of the additional testimony and evidence that the alleged favorable witnesses would have testified to, the defendant could not show a reasonable probability that the outcome of the trial would have been different had trial counsel subpoenaed the witnesses; hence, the defendant's ineffective assistance of counsel claim based on that foundation failed. Dukes v. State, 285 Ga. App. 172, 645 S.E.2d 664 (2007).

Despite the defendant's contrary claims, trial counsel was not ineffective in failing to subpoena witnesses necessary to support a defense and failing to adequately raise all issues in the defendant's motion to suppress and motion for independent analysis of the suspected narcotics as: (1) the defendant failed to supply sufficient information about the whereabouts of the witnesses; (2) the defendant failed to produce the witnesses at the motion for a new trial hearing; (3) counsel's strategy in handling the suppression motion showed an appropriate exercise of discretion; and (4) under the theory of defense presented, counsel was not ineffective by failing to obtain an independent examination of the substance tested. McTaggart v. State, 285 Ga. App. 178, 645 S.E.2d 658 (2007).

In a prosecution against the defendant under O.C.G.A. § 16-6-4, because the defendant failed to show that trial counsel was ineffective in failing to present an alibi witness, and because the defendant failed to offer evidence that a medical examiner or witnesses from the Department of Family and Child Services would have been favorable to a defense, the defendant's ineffective assistance of counsel claims lacked merit. Herrington v. State, 285 Ga. App. 4, 645 S.E.2d 29 (2007), cert. denied, 2007 Ga. LEXIS 548 (Ga. 2007).

The Court of Appeals of Georgia upheld an order denying the defendant's motion for a new trial, as an ineffective assistance of counsel claim based on counsel's alleged failure to communicate lacked merit, given that no reasonable probability existed, nor did the defendant offer any, that the outcome of the trial would have been different absent counsel's alleged deficient performance. Chambers v. State, 284 Ga. App. 400, 643 S.E.2d 871 (2007).

Trial court did not err in denying the defendant's amended motion for a new trial based on trial counsel's alleged ineffective assistance as the evidence failed to show that counsel's trial strategy was unreasonable, the defendant failed to show prejudice by counsel's actions, and the defendant failed to preserve some of the challenges to counsel's actions for appellate review. Phillips v. State, 284 Ga. App. 224, 644 S.E.2d 153 (2007).

On appeal from convictions on one count of aggravated sexual battery and two counts of sexual assault, the trial court did not err in denying the defendant's motion for a new trial as the defendant failed to show that any prejudice resulted from counsel's failure to call the defendant's wife to testify for the defense, and the appeals court refused to speculate that the wife's testimony would have led to an acquittal. Lee v. State, 286 Ga. App. 368, 650 S.E.2d 320 (2007).

Because it appeared that trial counsel's strategy was to convince the court that insufficient circumstantial evidence was presented in order to convict the defendant, and counsel's decision not to hire an expert to testify as to how quickly the defendant could become intoxicated was a tactical matter to avoid getting into a battle of the experts, those decisions did not amount to ineffective assistance of counsel sufficient to warrant a new trial. O'Connell v. State, 285 Ga. App. 835, 648 S.E.2d 147 (2007).

Trial court properly denied the defendant a new trial based on numerous claims of ineffective assistance of trial counsel, as counsel was not ineffective in failing to: (1) make meritless objections; (2) raise what was considered a novel legal argument; (3) file futile motions that would not have changed the outcome of trial; (4) require corroboration of the defendant's confession; and (5) anticipate that the defendant's wife might mislead the defense; moreover, the defendant's claim that counsel was inadequately prepared for trial was belied by the record. Daly v. State, 285 Ga. App. 808, 648 S.E.2d 90 (2007), cert. denied, 2007 Ga. LEXIS 659 (Ga. 2007), cert. denied, 553 U.S. 1039, 128 S. Ct. 2441, 171 L. Ed. 2d 241 (2008).

Because trial counsel's strategic decision not to call a close family friend as a witness, who could have rebutted the state's evidence that the defendant was controlling, was supported by testimony that the witness would not have added anything to the defense and might have diluted the defendant's voluntary manslaughter theory, counsel was not ineffective in failing to have the witness testify; thus, the defendant was properly denied a new trial. Johnson v. State, 282 Ga. 96, 646 S.E.2d 216 (2007).

Defendant's ineffective assistance of counsel claims lacked merit, as a motion to strike or for a mistrial after the state's expert offered an opinion as to the victim's failure to immediately report the abuse was meritless, and counsel's decision as to how to present the defendant's testimony fell within the realm of reasonable trial strategy, and therefore could not be considered deficient; thus, the claims could not serve as the basis for a new trial. Gaines v. State, 285 Ga. App. 654, 647 S.E.2d 357 (2007).

Trial court properly denied the defendant's amended motion for a new trial as: (1) the defendant failed to support an assertion that trial counsel was ineffective in failing to listen to an audiotape of the defendant's second interview with the Georgia Bureau of Investigation prior to trial; (2) counsel's offhand comment as to hindsight was insufficient to support an inference of deficient performance; and (3) the defendant failed to show that prejudice resulted from counsel's alleged deficiency. Sturgis v. State, 282 Ga. 88, 646 S.E.2d 233 (2007).

Because trial counsel did not provide the defendant with ineffective assistance to the extent that the relevant strategic decisions made would not have affected the outcome of the trial, and counsel properly chose not to object to the court's failure to merge a kidnapping and false imprisonment conviction, as those were independent offenses, the defendant's motion for a new trial was properly denied. Snelson v. State, 286 Ga. App. 203, 648 S.E.2d 647 (2007).

Defendant's motion for a new trial was properly denied since defense counsel was not ineffective in: (1) failing to investigate the victim's reputation for violence and introduce evidence of that victim's prior violent acts; (2) failing to investigate the defendant's medical records; (3) failing to investigate a state witness's convictions for crimes of moral turpitude and request an impeachment charge concerning that witness; (4) advising defendant not to testify; and (5) failing to present evidence or argument at sentencing. Cross v. State, 285 Ga. App. 518, 646 S.E.2d 723 (2007), cert. denied, 2007 Ga. LEXIS 680 (Ga. 2007).

Trial court properly denied the defendant's motion for a new trial on appeal from the defendant's convictions of child molestation and aggravated child molestation because: (1) venue was adequately shown by the testimony of a single witness; (2) the defendant's trial counsel was not ineffective by failing to prepare for trial, investigate the case, subpoena important documents, interview key witnesses, and object to damaging testimony; and (3) the defendant failed to show that the outcome of the trial would have been different but for counsel's alleged shortcomings. Brooks v. State, 286 Ga. App. 209, 648 S.E.2d 724 (2007).

Rape conviction was upheld on appeal as the defendant was not entitled to a new trial based on defense counsel's failure to object to certain testimony from the victim about the defendant's history of selling drugs and failure to subpoena certain medical records, as: (1) testimony from the victim that the defendant gave the victim drugs before some of the sexual encounters between them was admissible as part of the res gestae; and (2) the medical records were generally consistent with the victim's testimony, and therefore no prejudice resulted from failing to subpoena them. Mitchell v. State, 287 Ga. App. 517, 651 S.E.2d 821 (2007).

In a battery prosecution, setting aside the defendant's failure to object to a second attorney's representation at trial, a denial from the defendant's first attorney of an alleged promise to represent the defendant after that counsel's suspension had expired gave the trial court sufficient grounds for finding that no such promise occurred, eliminating the defendant's denial of the right to counsel claim; moreover, inasmuch as the defendant failed to challenge the trial court's finding that the second attorney's representation was effective, the defendant was not entitled to a new trial. Northington v. State, 287 Ga. App. 96, 650 S.E.2d 760 (2007).

Defendant's trial counsel was not ineffective in failing to object when a medical examiner testified that the victim's death was a homicide and not an accident, and despite the defendant's contrary claim, the testimony was not an expression of the witness' opinion on the ultimate issue in the case, as: (1) counsel did not consider the testimony objectionable because there was no dispute that the "manner" of the victim's death was a homicide, and such tactic was not unreasonable; (2) the ultimate issue for the jury to determine was whether the defendant acted with malice, in response to the victim's provocation, or whether self-defense was an issue; (3) counsel testified that an objection would have been in order had the medical examiner invaded the province of the jury by expressing the opinion that the homicide was a murder; and (4) the defendant failed to show any prejudice by the testimony presented. Berry v. State, 282 Ga. 376, 651 S.E.2d 1 (2007).

Because the defendant was not denied the effective assistance of trial counsel based on said counsel's failure to call certain witnesses, as the testimony that these witnesses would have provided would not have affected the outcome of the trial, and counsel was not ineffective to the extent that the defendant was denied the right to testify at trial, the trial court properly denied the defendant a new trial. Finch v. State, 287 Ga. App. 319, 651 S.E.2d 478 (2007).

Because trial counsel's decision not to object to statements that might have impugned the defendant's character was a tactical one, the trial court properly found that trial counsel was not ineffective; thus, the defendant was properly denied a new trial on those grounds. Page v. State, 287 Ga. App. 182, 651 S.E.2d 131 (2007).

Because the defendant was unable to establish prejudice resulting from trial counsel's alleged shortcomings, specifically that counsel was unprepared for trial, the defendant's ineffective assistance of counsel claim lacked merit; thus, the defendant was not entitled to a new trial on that ground. Bradford v. State, 287 Ga. App. 50, 651 S.E.2d 356 (2007).

Because the defendant did not claim below that trial counsel was ineffective for opening the door to impeachment, the defendant failed to timely raise this argument, and thus the claim was waived for purposes of appeal; as a result, the trial court did not err in denying the defendant's motion for a new trial on ineffective assistance of counsel grounds. Lipsey v. State, 287 Ga. App. 835, 652 S.E.2d 870 (2007).

Because counsels' advice against putting the defendant on the stand was tactical, counsel made the strategic decision not to strike a challenged juror, and the record reflected the basis for counsels' objection and motion for a mistrial during the state's closing argument, the defendant's allegations of ineffective assistance of counsel lacked merit; thus, the defendant was not entitled to a new trial as a result. Warner v. State, 287 Ga. App. 892, 652 S.E.2d 898 (2007).

Because a trial counsel's decision not to request a jury charge on a lesser-included offense in order to pursue an all-or-nothing defense was a matter of trial strategy, and there was no indication that the defendant would have agreed to charges on lesser-included offenses, given that the defendant relied on a claim of innocence, counsel was not ineffective in failing to request an instruction on a lesser-included offense; thus, the defendant was not entitled to a new trial on this ground. Davis v. State, 287 Ga. App. 786, 653 S.E.2d 104 (2007).

Ineffective assistance of counsel claims regarding the defendant's initial post-trial counsel's performance lacked merit, as counsel was neither professionally deficient nor prejudicial because: (1) the defendant waived any right to be present at the two juror interviews; (2) no deficiency could result from counsel's failure to raise meritless objections; and (3) the trial court specifically found that the defendant adequately understood the nature of the charges, comprehended the proceedings, despite being under the influence of prescribed anti-depressants, and was capable of aiding the defense. Hampton v. State, 282 Ga. 490, 651 S.E.2d 698 (2007).

Because the defendant's trial counsel was not ineffective in presenting a defense and requesting jury instructions on the defendant's claim of innocence, and was authorized to forego objection to a challenged portion of the state's closing argument, the defendant's ineffective assistance of counsel claims lacked merit and did not warrant a new trial. King v. State, 282 Ga. 505, 651 S.E.2d 711 (2007).

Ineffective assistance of counsel claims regarding the defendant's initial post-trial counsel's performance lacked merit, as counsel was neither professionally deficient nor prejudicial because: (1) the defendant waived any right to be present at the two juror interviews; (2) no deficiency could result from counsel's failure to raise meritless objections; and (3) the trial court specifically found that the defendant adequately understood the nature of the charges, and comprehended the proceedings, despite being under the influence of prescribed anti-depressants, and was capable of aiding the defense; thus, the evidence did not provide an adequate basis for the appellate court to conclude that the outcome of an amended motion for a new trial would have been different. Hampton v. State, 282 Ga. 490, 651 S.E.2d 698 (2007).

Because the defendant's trial counsel was not ineffective in failing to call a witness who would have testified that the victim fabricated claims of molestation, given evidence that: (1) the witness did not inform counsel of the witness before trial; (2) counsel articulated valid reasons for not calling the witness; (3) counsel challenged the state's evidence, arguing that the claims were fabricated; and (4) the defendant failed to show that any prejudice resulted from counsel's actions, the trial court properly denied the defendant a new trial based on ineffective assistance of counsel. Noe v. State, 287 Ga. App. 728, 652 S.E.2d 620 (2007).

Because any deficiency in counsel's failure to object to an investigator's testimony regarding the hearsay statements of an informant did not prejudice the defendant's defense, the jury was likely to deduce that the defendant was on parole from the fact that a parole officer initiated a search, and pretermitting whether the defendant's response to the investigator's request to search constituted "pre-arrest silence," no deficiency existed in counsel's reasonable strategic decision that the evidence was consistent with the defense, the defendant's ineffective assistance of counsel claims lacked merit. Cauley v. State, 287 Ga. App. 701, 652 S.E.2d 586 (2007).

Because: (1) it was likely that a mistrial would not have been granted after a police investigator testified about past dealings with the defendant; and (2) trial counsel's failure to request a curative instruction about the alleged improper injection of character evidence or question a witness about a note in which that witness recanted a statement amounted to reasonable trial strategy, the appeals court found that the defendant's claims of ineffective assistance of counsel lacked merit. Thus, a new trial based on those claims was unwarranted. Head v. State, 288 Ga. App. 205, 653 S.E.2d 540 (2007).

Because the defendant failed to show that any prejudice resulted from trial counsel's failure to investigate potential character witnesses and failure to "re-advise" the defendant of the right to testify following the state's introduction of rebuttal evidence, the defendant was not entitled to a new trial on these grounds. Thomas v. State, 282 Ga. 894, 655 S.E.2d 599 (2008).

Defendant's ineffective assistance of counsel claims did not warrant a new trial because counsel's trial tactics did not amount to ineffective assistance: (1) the defendant could not complain from a self-made choice to testify; (2) counsel's closing argument was not deficient; and (3) counsel could not be ineffective simply because another attorney might have used different language or placed a different emphasis on the evidence. Davenport v. State, 283 Ga. 171, 656 S.E.2d 844 (2008).

Because the trial court was entitled to believe counsel's testimony at the hearing on the motion for new trial that counsel advised the defendant of the right to testify at trial and that counsel met numerous times with the defendant, with ample opportunity to discuss all aspects of the case with counsel, the defendant's ineffective assistance of counsel claim in support of a motion for a new trial had to be rejected. Warren v. State, 283 Ga. 42, 656 S.E.2d 803 (2008).

Because the defendant failed to show that trial counsel was ineffective in failing to request jury voir dire to determine whether jurors saw the defendant wearing handcuffs, and because sufficient evidence supported the defendant's burglary conviction to make a directed verdict of acquittal unnecessary, a motion for a new trial was properly denied. Brown v. State, 289 Ga. App. 297, 656 S.E.2d 582 (2008).

Because: (1) the defendant failed to show that counsel was deficient in failing to impeach a cohort in the crimes charged with a prior felony conviction; (2) counsel made the strategic decision to restrict the scope of the cohort's cross-examination; and (3) the defendant could not show any prejudice resulting from the counsel's actions, the defendant's ineffective assistance of counsel claim lacked merit. Thus, the defendant was not entitled to a new trial as a result of that claim. Jones v. State, 289 Ga. App. 219, 656 S.E.2d 556 (2008), cert. denied, 2008 Ga. LEXIS 381 (Ga. 2008).

Because the evidence showed that: (1) the defendant's trial counsel spent sufficient time investigating and preparing the case; (2) the defendant failed to present evidence of the victim's alleged "false reporting" conviction at the hearing on the motion for new trial or show how counsel's cross-examination of the victim on the false reporting would have affected the outcome of the trial; and (3) trial counsel contacted each and every person the defendant identified as a witness, the defendant's motion for a new trial on grounds that counsel was ineffective was properly denied. Kilby v. State, 289 Ga. App. 457, 657 S.E.2d 567 (2008).

On appeal from convictions on two counts of child molestation and one count of aggravated sexual battery, the trial court properly found that the defendant was not entitled to a new trial based on allegations of the ineffective assistance of defense counsel because: (1) the manner in which counsel handled alleged exculpatory evidence pertaining to a similar transaction witness and the cross-examination of that witness, was part of counsel's reasonable trial strategy; (2) the defendant's reciprocal discovery or due process rights were not violated; and (3) the existence of the information sought was known to the defendant, which could have been obtained with due diligence. Ellis v. State, 289 Ga. App. 452, 657 S.E.2d 562 (2008).

Defendant's ineffective assistance of counsel claim did not warrant a new trial in a prosecution for rape, kidnapping, aggravated stalking, and two counts of stalking; because of the limited nature of a challenged witnesses' trial testimony, defense counsel made a strategic decision not to seek recusal of the trial judge, who was the brother of the challenged witness, and counsel discussed with the defendant the reasons for not seeking recusal. Pirkle v. State, 289 Ga. App. 450, 657 S.E.2d 560 (2008).

New trial based on counsel's alleged ineffectiveness was unwarranted because the defendant made no affirmative showing that the purported deficiencies in trial counsel's representation in investigating a claim of possible jury tampering amounted to ineffective assistance of counsel and were not examples of a conscious and deliberate trial strategy. Dowels v. State, 289 Ga. App. 369, 657 S.E.2d 279 (2008).

Because: (1) the defendant failed to meet the burden of establishing that the state possessed favorable information, or that the trial's outcome might have been different if videotapes from the cameras on the vehicles of the two responding officers had been produced; and (2) counsel was not required to make an objection to the admission of similar transaction evidence when such would have been futile, the defendant was not entitled to a new trial as a result. Hinton v. State, 290 Ga. App. 479, 659 S.E.2d 841 (2008).

Because the defendant failed to present any evidence of prejudice from trial counsels' alleged deficiency in failing to explore the possibility that the defendant's mental illness might have provided a viable trial defense, and that one counsel failed to adequately prepare the defendant for taking the witness stand, the trial court properly denied the defendant a new trial based on the ineffective assistance of counsel. Icenhour v. State, 290 Ga. App. 461, 659 S.E.2d 858 (2008).

New trial based on counsel's alleged ineffectiveness was properly denied because the defendant's numerous claims of ineffective assistance of counsel lacked merit; the defendant failed to show that: (1) the number of different instructions sought; (2) any additional investigation or preparation; (3) an objection to evidence of the prior difficulties between the defendant and the victim, and request for a contemporaneous limiting instruction; and (4) a request for an instruction on a defense not alleged, would have changed the outcome of the trial, and the tactical decision as to which defense to pursue was part of a reasonable trial strategy. Breazeale v. State, 290 Ga. App. 632, 660 S.E.2d 376 (2008).

Because the defendant failed to show that any prejudice resulted from trial counsel's alleged ineffectiveness in failing to discover and introduce the criminal record of one of the witnesses for the prosecution for impeachment purposes, a new trial was properly denied. Rivers v. State, 283 Ga. 108, 657 S.E.2d 210 (2008).

In prosecution against defendant on two counts of child molestation, because trial counsel was not ineffective in failing to request a specific jury charge addressing alleged improper bolstering testimony, present any expert testimony which was not helpful to defense, and elicit available favorable evidence and impeach the victim's testimony, defendant's convictions of related offenses were upheld on appeal; thus, the defendant was not entitled to a new trial on grounds that trial counsel was ineffective. Rouse v. State, 290 Ga. App. 740, 660 S.E.2d 476 (2008).

As a defendant failed to raise an issue regarding the alleged bolstering of a victim by a witness for the state in the defendant's motion for a new trial based on the alleged ineffectiveness of trial counsel, the issue was not preserved for purposes of appellate review. Carroll v. State, 292 Ga. App. 795, 665 S.E.2d 883 (2008).

Trial court did not err in denying the defendant's motion for a new trial on the ground that the defendant's trial counsel rendered ineffective assistance by failing to obtain an electronic enhancement of a videotape depicting a drug sale, which allegedly would have shown that the defendant was not the perpetrator of the offense, because the defendant failed to show that the defendant was prejudiced as a result of trial counsel's failure to obtain an electronic enhancement of the videotape prior to trial since the enhanced images failed to create a reasonable probability that the defendant was not the perpetrator depicted in the images. Moreover, an undercover officer unequivocally identified the defendant as the perpetrator based upon the officer's personal observations and independent memory of the defendant at the time of the drug sale, and although the defendant attempted to prove that another individual was the perpetrator depicted in the videotape's images, the defendant failed to proffer sufficient evidence in support of the defendant's claim. Faulkner v. State, 304 Ga. App. 791, 697 S.E.2d 914 (2010).

Trial court did not err in denying the defendant's motion for new trial on the basis of ineffective assistance of counsel because trial counsel's decision not to object to a police officer's passing reference to the defendant's post-arrest silence was a valid exercise of reasonable professional judgment, the defendant failed to rebut the presumption that counsel performed within the wide range of reasonable professional assistance in failing to challenge hearsay testimony, counsel's defense strategy of implicating the codefendants was not unreasonable, and counsel did not fail to present evidence as promised in the counsel's opening statement. Jackson v. State, 306 Ga. App. 33, 701 S.E.2d 481 (2010).

Trial court did not err in denying the defendant's motion for new trial on the ground that trial counsel was ineffective in failing to object to statements the prosecutor made during closing argument because counsel did object, and defense counsel's objection was successful; while the defendant asserted that counsel should have further moved for a mistrial, such decisions generally fell within the ambit of strategy and tactics. Wilson v. State, 306 Ga. App. 827, 703 S.E.2d 400 (2010).

Trial court did not err in denying the defendant's motion for new trial on the ground that trial counsel was ineffective in failing to object to a question directed to an accomplice because counsel personally opened the line of questioning on cross-examination, and in the absence of counsel's testimony, it was presumed to be a strategic decision; having made that decision, trial counsel could not object, and because trial counsel succeeded in obtaining acquittal on the three most serious charges against the defendant that strongly supported the conclusion that the assistance actually rendered by trial counsel fell within that broad range of reasonably effective assistance that members of the bar in good standing were presumed to render. Wilson v. State, 306 Ga. App. 827, 703 S.E.2d 400 (2010).

Trial court did not err in denying the codefendant's motion for new trial on the ground that trial counsel was ineffective in failing to object to testimony from one of the victims and a police officer regarding the codefendant's prior purchase of marijuana from one of the victims because drug use showed the codefendant's motive to rob a home where the codefendant believed illegal drugs and money would be found; an accomplice testified that the motive for the robbery was that the victims kept drugs and cash in the apartment and that the codefendant planned the robbery and knew that drugs and money were kept in the house. Wilson v. State, 306 Ga. App. 827, 703 S.E.2d 400 (2010).

Trial counsel was not ineffective for failing to move for a mistrial when a state's witness interjected bad character evidence because the witness's improper remarks were fleeting, unsolicited, and nonresponsive to the prosecutor's examination questions, and since the defendant did not show that the defendant was otherwise entitled to a mistrial based upon the circumstances, trial counsel's failure to pursue a meritless motion does not constitute ineffective assistance of counsel; the trial court sustained the objections to the improper testimony and instructed the prosecutor and witness to restrict the examination and responses, the witness and prosecutor complied with the trial court's instructions, and there was no further mention of the bad character evidence. Boatright v. State, 308 Ga. App. 266, 707 S.E.2d 158 (2011).

Trial court did not abuse the court's discretion in denying the defendant's motion for new trial on the ground of ineffective assistance of counsel because trial counsel's decision not to request the production of the duct tape that was used to bind the defendant when the defendant was allegedly kidnapped was not patently unreasonable because the duct tape itself was cumulative of evidence that was introduced through the defendant's recorded police interview and trial counsel's cross-examination of a detective; even if it was assumed that trial counsel performed deficiently, the defendant proffered no evidence at the hearing on the defendant's motion for new trial that an analysis of the duct tape would have bolstered the defendant's alibi defense. Buis v. State, 309 Ga. App. 644, 710 S.E.2d 850 (2011).

Trial court did not err in denying the defendant's motion for new trial because trial counsel's failure to object to a detective's testimony did not amount to deficient performance since the testimony was not a statement of the victim's credibility or an invasion of the province of the jury; the testimony concerned the detective's reason for ending the interview with the victim and referring the victim to the Georgia Center of Child Advocacy, and even if the testimony that "a molestation incident occurred" did constitute improper bolstering, the defendant failed to show a reasonable probability that the testimony so prejudiced the defense as to affect the outcome of the trial. Furthermore, the motion was also properly denied because trial counsel's failure to object to the prosecutor's comments during closing argument did not constitute deficient performance; the comments of which defendant complained were permissible since the comments were the conclusion the prosecutor wished the jury to draw from the evidence and not a statement of the prosecutor's personal belief as to the veracity of a witness. Strickland v. State, 311 Ga. App. 400, 715 S.E.2d 798 (2011).

Trial court did not err in denying the defendant's motion for new trial on the ground of ineffective assistance of counsel because there was no evidence to support an instruction on defense of habitation pursuant to O.C.G.A. § 16-3-23 and, thus, trial counsel did not perform deficiently in failing to request such an instruction; there was no evidence that the victim was attempting to unlawfully enter or attack the defendant's vehicle at the time the defendant stabbed the victim, and under the facts, there could be no reasonable belief that stabbing the victim was necessary to prevent or terminate the other's unlawful entry into or attack upon a motor vehicle. Philpot v. State, 311 Ga. App. 486, 716 S.E.2d 551 (2011).

Because the armed robbery count of the indictment sufficiently alleged the elements of armed robbery, trial counsel was not ineffective for failing to challenge armed robbery, and the trial court did not err in denying the defendant's motion for new trial as to the ineffective assistance claim; that the property was taken from the person or immediate presence of another is necessarily inferred from the allegation of a use of an offensive weapon to accomplish the taking, and the alleged offense of "armed robbery" can be accomplished only via a taking from the person or immediate presence of another. Patterson v. State, 312 Ga. App. 793, 720 S.E.2d 278 (2011), cert. denied, No. S12C0574, 2012 Ga. LEXIS 327 (Ga. 2012).

Trial court did not err when the court denied the portion of the codefendant's motion for new trial alleging ineffective assistance of trial counsel because the alleged deficiencies in trial counsel's performance were either without factual basis or were decisions made as matters of trial strategy. Smith v. State, 290 Ga. 428, 721 S.E.2d 892 (2012).

Trial counsel was not ineffective for failing to object to the state's argument that no person in the circuit had ever been convicted and later proven innocent because the trial court would not have abused the court's discretion in denying the defendant's motion for mistrial had one been made and did not err when the court credited trial counsel's decision not to object to the prosecutor's closing argument as strategic; even assuming that the prosecutor should not have compared the defendant to others, the subject of wrongful convictions in other cases was brought up by the defendant, and the jury was not impressed either way by the colloquy. Stubbs v. State, 315 Ga. App. 482, 727 S.E.2d 229 (2012).

Counsel not ineffective for alleged intoxication.

- Trial court did not err in denying the defendant's motion for a new trial on the basis of ineffective assistance of counsel because the defendant failed to show that the defendant's trial counsel was actually intoxicated on the second morning of the trial and that the defendant's counsel's performance after consuming alcohol affected the outcome of the defendant's trial; nothing in the record showed that the trial court erred in finding that there were no deficiencies in counsel's performance on the second morning of the trial. Long v. State, 307 Ga. App. 669, 705 S.E.2d 889 (2011).

When ineffective counsel did not result in prejudice.

- Defendant's ineffective assistance of counsel claim did not warrant a new trial because sufficient evidence of the defendant's intoxication was presented in the record, and the defendant failed to show prejudice resulting from trial counsel's failure to object to defendant's admission to having a prior DUI conviction, even though it was error for trial counsel not to object. Thomas v. State, 288 Ga. App. 827, 655 S.E.2d 701 (2007).

New trial was unwarranted because: (1) the decision not to present the defendant's love interest as an alibi witness was clearly strategic, and thus, could not serve as the basis for an ineffectiveness claim; and (2) counsel's alleged failure to specifically object to the victim's testimony on bolstering and not on leading and speculation grounds impermissibly expanded the enumerated error. Scott v. State, 288 Ga. App. 738, 655 S.E.2d 326 (2007).

While the defendant's trial counsel was ineffective in failing to object to that portion of the state's closing argument in which the prosecutor referenced a slain officer's funeral a week prior, as that fact had no relevance to the charges the defendant was facing, based on the overwhelming evidence of guilt, including the defendant's admission, the defendant's convictions for trafficking in cocaine and possession of cocaine with intent to distribute were upheld on appeal; thus, a new trial was properly denied. Cantrell v. State, 290 Ga. App. 651, 660 S.E.2d 468 (2008).

Failure to disclose unknown reward.

- Trial court did not err in denying a motion for a new trial when the state did not disclose a potential reward for one of the state's witnesses when the state's attorney did not know at the time of trial that any witness testifying for the state was subject to a reward. McBee v. State, 210 Ga. App. 182, 435 S.E.2d 469 (1993).

State found not to have committed discovery violation.

- Absent any evidence of bad faith on the part of the state, or an order requiring production, the state did not fail to fully disclose all the information regarding the defendant's breath test results. Thus, the trial court did not err in denying the defendant either a mistrial or a new trial as a result. Rosandich v. State, 289 Ga. App. 170, 657 S.E.2d 255 (2008), cert. denied, No. S08C0861, 2008 Ga. LEXIS 380 (Ga. 2008).

Failure to establish Brady violation.

- Trial court did not err in denying the defendant's motion for a new trial on the ground that the state withheld crucial impeachment evidence regarding an informant because the defendant failed to carry the burden of establishing a Brady claim; the defendant's trial counsel extensively questioned an agent about the informant's criminal history, and during the cross-examination of the agent, trial counsel elicited the fact that the informant had once been addicted to cocaine and again went through the informant's convictions, introducing copies of the convictions for the jury's consideration. Durham v. State, 309 Ga. App. 444, 710 S.E.2d 644 (2011).

Absence of key portions of trial record supported verdict.

- Because the appellant failed to supply the appellate court with the entire trial transcript in the record on appeal, but only included the pretrial motions and the opening statements at trial, without a complete transcript the court of appeals had to presume that the evidence supported the jury's verdict; thus, a new trial was not warranted. Parekh v. Wimpy, 288 Ga. App. 125, 653 S.E.2d 352 (2007), cert. denied, No. S08C0520, 2008 Ga. LEXIS 319 (Ga. 2008).

Deputy sheriff's communications with jury.

- Defendant's motion for a new trial was properly denied, as the challenged communications between a deputy sheriff and the jury members were not improper, the deputy properly instructed the jurors to direct their questions to the judge, and the deputy's communications to the jury did not prejudice the defendant. Jackson v. State, 282 Ga. App. 612, 639 S.E.2d 403 (2006).

Erroneous disallowance of challenge of juror for cause.

- When it did not affirmatively appear from the record that the defendant in trial of misdemeanor case had exhausted the defendant's peremptory challenges at the time the panel of 12 jurors was accepted and sworn, the appellate court presumed that the defendant was not prejudiced by action of court in erroneously disallowing the defendant's challenge of certain jurors for cause, and did not grant reversal for alleged error. Borders v. State, 46 Ga. App. 212, 167 S.E. 213 (1932).

Juror impartial.

- Trial court did not abuse the court's discretion in denying a motion for new trial motion pursuant to O.C.G.A. § 5-5-25 after the defendant was convicted of criminal charges arising from an incident involving an ex-girlfriend; the fact that one juror indicated that the juror's daughter went to school with the victim's daughter and the daughters had a sleepover a year earlier at the victim's house did not create actual juror partiality or circumstances that were inherently prejudicial to defendant's right to an impartial jury under Ga. Const. 1983, Art. I, Sec. I, Para. XI. Sims v. State, 276 Ga. App. 246, 622 S.E.2d 909 (2005).

Pretermitting whether a challenged juror would have been disqualified based on a relationship with the defendant, because the testimony from that juror at the new trial hearing did not reveal any bias for or against the defendant, or establish that the relationship affected the verdict, the defendant was not denied a fair and impartial trial. Moreover, even if the juror deliberately answered falsely, the defendant failed to show that a new trial was warranted because that juror had an evil motive or acted otherwise as one of the twelve jurors than with the required impartiality. Allen v. State, 290 Ga. App. 604, 659 S.E.2d 900 (2008).

Polling of jurors reveal consensus.

- Trial court properly denied defendant's motion for a new trial and entered final judgments of conviction on the jury's verdict finding the defendant guilty of multiple child molestations even though the defendant alleged multiple grounds for overturning the verdict, as the polling of the last juror was sufficient to establish that the verdict against the defendant was unanimous since the juror said the guilty verdict against the defendant was "her verdict now." That response showed, along with other jurors similar responses, that the verdict was unanimous and it thus did not matter that the juror answered in response to a question before that the verdict had not been that juror's verdict. Benefield v. State, 264 Ga. App. 511, 591 S.E.2d 404 (2003).

Voir dire was not inadequate.

- Trial court acted within the court's discretion in granting an insurance premium finance company's motion in limine to preclude an insured from mentioning irrelevant corporate affiliations of the company during the course of the trial in any address to the jury, and the court properly denied the insured's motion for new trial under O.C.G.A. §§ 5-5-23 and5-5-25 because the voir dire was broad enough to ascertain the fairness and impartiality of the prospective jurors, and the insured was not prohibited from asking more general questions that could have ferreted out the potential bias the insured claimed was so critical since the only limitation placed on voir dire was a prohibition against asking any questions about any affiliation with the company, and the insured failed to explore other avenues open to the insured for detecting juror bias; a corporation was not the company's insurer, and the insured did not provide the trial court with proof of any direct, demonstrable financial stake by the corporation in the outcome of the case. Floor Pro Packaging, Inc. v. AICCO, Inc., 308 Ga. App. 586, 708 S.E.2d 547 (2011).

Jury foreperson's alleged untruthfulness in voir dire.

- Because the defendant failed to present sufficient evidence to show that if the jury foreperson had given a truthful answer to counsel's question regarding whether any juror had ties to law enforcement, and that the foreperson would have been dismissed for cause, the defendant was not entitled to a new trial on this ground. Allen v. State, 286 Ga. App. 469, 649 S.E.2d 583 (2007).

Because the defendant failed to show error by the record in order to support a claim that the trial court impermissibly communicated with the jury during the hearing on a motion for a new trial, the appeals court rejected that claim. Thornton v. State, 288 Ga. App. 60, 653 S.E.2d 361 (2007), cert. denied, 2008 Ga. LEXIS 283 (Ga. 2008).

Prejudicial statements made during voir dire.

- Trial court erred in denying the defendant's motion for mistrial when prejudicial statements were made during voir dire because although a prospective juror stated that the juror was not sure if the defendant was the same person accused of raping his grandmother in a prior case, the state elicited more information from the juror, hereby providing the other prospective jurors with the name of another alleged rape victim in a crime for which the defendant was not on trial; the trial court did not undertake any measures to ascertain what, if any, impact the remark had on the panel's ability to decide the case, and the evidence was inherently prejudicial and deprived the defendant of the right to begin the trial with a jury free from even a suspicion of prejudgment or fixed opinion. Bell v. State, 311 Ga. App. 289, 715 S.E.2d 684 (2011).

Crying juror inadequate for motion for mistrial.

- Trial court did not abuse the court's discretion in denying the defendant's motion for a mistrial after a juror started crying as the victim's widow and two other family members of the victim allegedly ran out of the courtroom crying during the state's closing arguments because contrary to the defendant's description of the scene during closing arguments, the trial court stated that the court did not adopt the defense attorney's recitation of what occurred. Carter v. State, 289 Ga. 51, 709 S.E.2d 223 (2011).

Grand jury composition.

- Trial court did not err in failing to grant the defendant a new trial on the ground that the grand jury was composed of 25 people in violation of O.C.G.A. § 15-12-61(a), as the claim was waived, and the trial court found as a fact that the grand jury was properly comprised. Daly v. State, 285 Ga. App. 808, 648 S.E.2d 90 (2007), cert. denied, 2007 Ga. LEXIS 659 (Ga. 2007), cert. denied, 553 U.S. 1039, 128 S. Ct. 2441, 171 L. Ed. 2d 241 (2008).

Charging entire Code section when parts are inapplicable.

- It is not usually cause for a new trial that an entire Code section is given, even though a part of the charge may be inapplicable under the facts in evidence. Stevens v. State, 247 Ga. 698, 278 S.E.2d 398 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1982).

Failure to request jury charge.

- Though defendant's counsel erred by failing to request a jury charge on good character evidence and such error amounted to a deficient performance of counsel, defendant's conviction for malice murder and the denial of a motion for a new trial was upheld on appeal; no prejudice resulted to the defendant due to the deficiency in that the evidence of guilt was so overwhelming that, had the jury instruction been given, there was no likelihood that the outcome of the trial would have been different. Lucas v. State, 279 Ga. 175, 611 S.E.2d 55 (2005).

While the prosecution against the defendant on charges of burglary, theft by taking, and criminal trespass included both direct and circumstantial evidence, convictions on those charges were not reversed merely because the trial court failed to charge former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6) as the defendant failed to request that charge; hence, the defendant's motion for a new trial was properly denied. Rodriguez v. State, 283 Ga. App. 752, 642 S.E.2d 705 (2007).

Because trial counsel made a strategic decision not to present a written request for a lesser-included misdemeanor obstruction charge given that the defendant decided to pursue an "all or nothing" defense, and, as a result, the trial court did not err in not charging the jury on misdemeanor obstruction, sua sponte, which would have undermined that defense, trial counsel was not ineffective in failing to request the charge; hence, the defendant was not entitled to a new trial on those grounds. Owens v. State, 288 Ga. App. 771, 655 S.E.2d 244 (2007), cert. denied, 2008 Ga. LEXIS 274 (Ga. 2008).

Improperly admitted evidence properly ruled out not grounds for mistrial.

- Trial court did not abuse the court's discretion in denying the defendant's motion for a mistrial in defendant's shoplifting case as the trial court's action in immediately ruling out improperly admitted evidence and instructing the jury to disregard the evidence meant a mistrial was not necessary to preserve defendant's right to a fair trial. Bradford v. State, 261 Ga. App. 621, 583 S.E.2d 484 (2003).

Trial counsel was not ineffective for failing to obtain copies of defendant's cell phone records, and the trial court did not err in denying the defendant's motion for a new trial on this ground. According to the defendant, these records would have shown that calls were made from defendant's cell phone to the victim's father, rebutting the father's testimony that the defendant would not talk to the father; however, the defendant admitted at trial that the defendant's coworkers would not allow the defendant to speak with the victim's father. Stanford v. State, 288 Ga. App. 463, 654 S.E.2d 173 (2007), cert. denied, 2008 Ga. LEXIS 461 (Ga. 2008).

Evidentiary issues did not warrant new trial.

- Burglary conviction was upheld on appeal and, thus, the defendant was properly denied a new trial as: (1) sufficient evidence was presented that the defendant entered the victim's home without permission with the intent to commit a theft therein; and (2) the state properly presented res gestae evidence, even if such improperly placed the defendant's character in evidence. Meyers v. State, 281 Ga. App. 670, 637 S.E.2d 78 (2006).

Because the defendant waived a confrontation clause, as well as any other constitutional objection, to testimony concerning a statement overheard from a woman fleeing the scene of the crime on appeal, and the victim's testimony, as well as the defendant's own admission, supported a robbery by intimidation conviction, such was upheld on appeal; hence, the trial court did not err in denying the defendant a new trial. Jordan v. State, 283 Ga. App. 85, 640 S.E.2d 672 (2006).

Trial court properly denied the defendant a new trial, given sufficient evidence that: (1) the defendant's convictions for malice murder and other related crimes were supported by the evidence; (2) the jury properly decided against a voluntary manslaughter verdict based on that evidence; (3) evidentiary issues did not warrant a mistrial; (4) the state did not act in bad faith in failing to preserve potentially exculpatory evidence; and (5) no due process violation occurred by the admission of cumulative evidence. Lonergan v. State, 281 Ga. 637, 641 S.E.2d 792 (2007).

Trial court did not err in denying the defendant's motion for a new trial, as sufficient evidence supported the rape, aggravated sodomy, and incest convictions, similar transaction evidence was admitted for a proper purpose, and the imposition of a life imprisonment sentence as a recidivist child molester did not render O.C.G.A. § 16-6-4(b) an unconstitutional ex post facto law. Williams v. State, 284 Ga. App. 255, 643 S.E.2d 749 (2007).

Because: (1) the defendant's convictions were supported by evidence of the defendant's confession to a friend and expert medical testimony as to how the victim died; (2) the defendant received ample notice of the specific deadly weapon allegedly used for purposes of the felony murder charge; and (3) the defendant failed to show that trial counsel was ineffective and a presumption of prejudice did not apply, the defendant was not entitled to a new trial. Jones v. State, 282 Ga. 47, 644 S.E.2d 853 (2007).

Trial court properly denied the defendant a new trial, as the state's commentary during opening and closing argument on the connection between illegal drugs and crime in the community was proper, no abuse of discretion resulted from the admission of the defendant's booking mug shot, and the state's identification witnesses could testify about their level of certainty in identifying the defendant. Clark v. State, 285 Ga. App. 182, 645 S.E.2d 671 (2007).

Because: (1) the defendant failed to support a defense of self-defense, given evidence that any imminent threat posed against the defendant had passed, the victim was shot in the head after a confrontation had ended, and the victim had retreated to the victim's car and was being driven away at the time the fatal shot was dealt; (2) severance of the offense of aggravated assault on a police officer and felony murder of the victim was not warranted; and (3) the defendant failed to prove that the state committed a Batson violation in peremptorily striking two jurors, the defendant's motion and amended motion for a new trial were properly denied. Woolfolk v. State, 282 Ga. 139, 644 S.E.2d 828 (2007).

Because sufficient evidence was supplied via the testimony from the child victim, and the witnesses who corroborated that testimony, to support the defendant's aggravated sexual battery and child molestation convictions, despite any alleged inconsistencies, the convictions were upheld as was the denial of the defendant's motions for an acquittal and a new trial. Lilly v. State, 285 Ga. App. 427, 646 S.E.2d 512 (2007).

Given sufficient evidence presented by the state of the defendant's involvement in the armed robbery and murder of the victim as a party to the crimes, no errors in the content and order of the jury charges, and the lack of evidence supporting the defendant's ineffective assistance of counsel claims, the trial court properly denied the defendant a new trial. Pruitt v. State, 282 Ga. 30, 644 S.E.2d 837 (2007).

Affirmance of the juvenile court's order terminating a parent's parental rights was ordered, as the parent failed to comply with the case plan outlined, and the parent's failure to obtain stable housing, continued financial instability, and prolonged unwillingness to address mental health issues showed that the parent's lack of parental care or control caused the children's deprivation; hence, the parent's motion for a new trial was properly denied. In the Interest of J.M.N., 285 Ga. App. 203, 645 S.E.2d 685 (2007).

Because the jury was presented with sufficient evidence via a husband's deposition and trial testimony supporting the jury's determination of the husband's monthly gross income, which included income from two landscaping businesses and a salary from the sheriff's department, which in turn supported a finding of special circumstances warranting an upward modification of child support, the husband was not entitled to a new trial; moreover, to the extent that any error in admitting the husband's landscaping business bank statements could have resulted from the marks or highlights that were on pages sent with the jury, the husband's counsel induced such error by approving the pages beforehand. Dyals v. Dyals, 281 Ga. 894, 644 S.E.2d 138 (2007).

In a prosecution for statutory rape, the trial court properly denied the defendant a new trial as: (1) the indictment adequately set forth a charge of felony statutory rape; (2) the evidence showed the defendant to be over 21 years old and more than three years older than the victim; (3) the trial court was not required to sentence the defendant for misdemeanor statutory rape, and in fact was precluded from doing so; and (4) the defendant failed to make a written request that the jury be charged on the law under former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6). Attaway v. State, 284 Ga. App. 855, 644 S.E.2d 919 (2007).

Because sufficient evidence was presented that the defendant physically assaulted an off-duty sheriff's officer prior to arrest and continued to resist and obstruct the officer's official duties thereafter, the defendant was properly denied an acquittal and a new trial; moreover, given that the trial court properly charged the jury on the obstruction offense, explaining that a person committed the offense by knowingly and willfully obstructing or hindering a law enforcement officer in the lawful discharge of that officer's official duties, nothing beyond such was required. Helton v. State, 284 Ga. App. 777, 644 S.E.2d 896 (2007).

Because the overwhelming evidence presented against the defendant supported the convictions, and the defendant failed to assert a timely and contemporaneous objection to the prosecutor's opening statement comments, the trial court did not err in denying the defendant's motions for a new trial and a mistrial. Brooks v. State, 284 Ga. App. 762, 644 S.E.2d 891 (2007).

Rape, incest, child molestation, aggravated child molestation, and aggravated sodomy convictions were all upheld on appeal, given that: (1) the elements of child molestation and aggravated child molestation, including venue, were supported by the female victim's testimony; (2) the trial court's charge on the mandatory presumption of consent was proper; as a result, the defendant was not entitled to a new trial. Forbes v. State, 284 Ga. App. 520, 644 S.E.2d 345 (2007).

Because no reversible error resulted from excepting a prosecution witness from sequestration, the admission of certain recorded out-of-court statements by three witnesses and one of the codefendants, and the jury charge on impeachment, the defendant's felony murder and possession of a firearm during the commission of a felony convictions were upheld on appeal; hence, the trial court properly denied the defendant a new trial. Warner v. State, 281 Ga. 763, 642 S.E.2d 821 (2007).

In a premises liability action arising from a customer's slip and fall on a restaurant's premises, the trial court did not err in denying the customer's motion for a new trial, as: (1) a trash can did not obstruct the sidewalk the customer was walking on at the time of the fall, and there was no basis in the record to find that the restaurant negligently failed to keep the restaurant's premises safe; (2) the customer had knowledge of the hazard equal or superior to the restaurant; (3) the customer could have discovered and avoided the hazard in the exercise of ordinary care; (4) there was no evidence that the restaurant had either actual or constructive knowledge of the hazard; (5) the trial court properly instructed the jury on the issue of constructive knowledge; and (6) there was at least some evidence to support a comparative negligence charge. Compton v. Huddle House, Inc., 284 Ga. App. 367, 644 S.E.2d 182 (2007), cert. denied, 2007 Ga. LEXIS 515 (Ga. 2007).

Given the arresting officer's observations, the defendant's failure to maintain a lane of driving, the evidence presented surrounding the defendant's arrest, and the defendant's failed field sobriety and breath tests, sufficient evidence was presented to support the DUI convictions; thus, a new trial based on the insufficiency of the evidence was properly denied. Trull v. State, 286 Ga. App. 441, 649 S.E.2d 571 (2007).

Because sufficient evidence supported the defendant's convictions, a voluntary statement given to police did not violate Miranda, the trial court properly charged the jury, the defendant waived error regarding a sequestration issue, and the imposition of a maximum sentence against the defendant as a recidivist was warranted, the trial court did not err in denying the defendant a new trial. Bryant v. State, 286 Ga. App. 493, 649 S.E.2d 597 (2007).

Trial court did not err in denying the defendant's amended motion for a new trial, as defense counsel's trial strategy did not amount to ineffective assistance, the victim's testimony and surrounding evidence supported an aggravated sexual battery conviction, and any error resulting from the trial court's instruction on prior consistent statements was harmless. Boyt v. State, 286 Ga. App. 460, 649 S.E.2d 589 (2007).

On appeal from a conviction for two counts of aggravated child molestation, the trial court did not err in denying the defendant a new trial, as no abuse of discretion resulted in excluding evidence that one of the victims made prior false accusations of sexual abuse against an older cousin, because the evidence presented a credibility issue for the trial court to resolve in analyzing whether there was a reasonable probability of falsity. Roberts v. State, 286 Ga. App. 346, 648 S.E.2d 783 (2007).

Defendant's aggravated assault and robbery convictions were upheld on appeal, as evidence including the defendant's admission and flight from the scene authorized the jury to conclude that the defendant went to an apartment complex intending to participate in the robbery, and in fact participated in the robbery by acting as a lookout and an additional show of force; hence, the defendant's motion for a new trial was properly denied. Millender v. State, 286 Ga. App. 331, 648 S.E.2d 777 (2007), cert. denied, No. S07C1717, 2008 Ga. LEXIS 80 (Ga. 2008).

Because: (1) the defendant's statement was admissible; (2) probable cause supported the issuance of a search warrant; (3) the indictment was sufficient; (4) jury selection was non-discriminatory; (5) relevant evidence was properly admitted; (6) the best evidence rule was not violated; and (7) instructions on voluntary manslaughter, involuntary manslaughter, and accident were unwarranted, the defendant's murder conviction was supported by the evidence; thus, a new trial was properly denied. Roberts v. State, 282 Ga. 548, 651 S.E.2d 689 (2007).

Trial court did not err in denying the defendant's motion for a new trial on grounds that a refusal to submit to voluntary field sobriety tests was testimonial in nature, and thus subject to the Fifth Amendment protection against self-incrimination, as a refusal to submit to the tests was not testimonial in nature, and the mere fact that the defendant refused to submit to a blood test was not subject to the privilege against self-incrimination since no impermissible coercion was involved, regardless of the form of refusal. Ferega v. State, 286 Ga. App. 808, 650 S.E.2d 286 (2007), cert. denied, 129 S. Ct. 195, 172 L. Ed. 2d 140 (2008).

Trial court properly denied the defendant's motion for a new trial, and an aggravated assault conviction was upheld on appeal, as the state was not required to show that the defendant expressed an intent to rob or declared a purpose to carry that intent into effect, for the jury to arrive at the conclusion that such was the defendant's intent; moreover, the defendant's intention could be gathered from the circumstances of the case as proved, and in seeking the motives of human conduct, inferences and deductions could properly be considered when the inferences and deductions flowed naturally from the facts proved. Squires v. State, 286 Ga. App. 141, 648 S.E.2d 696 (2007).

Given the evidence supporting the defendant's aggravated child molestation conviction, including that: (1) the defendant sodomized the victim; (2) witnesses knew that the defendant had an interest in performing oral sex; and (3) the trial court properly limited the defendant's cross-examination to only relevant matters, the conviction was upheld on appeal and the trial court did not err in denying the defendant a new trial. Gaines v. State, 285 Ga. App. 654, 647 S.E.2d 357 (2007).

In the court's order denying the defendant a new trial, the trial court correctly ruled that the defendant's motion to suppress was moot because no tangible physical evidence was admitted at trial. Maxwell v. State, 285 Ga. App. 685, 647 S.E.2d 374 (2007).

Because the "direct sequencing" method of the mitochondrial DNA analysis used by the crime lab was properly used in prosecuting the defendant for murder, and a spontaneous outburst was admissible as a non-custodial and voluntary statement, a conviction for malice murder, and resulting sentence, were affirmed on appeal; hence, the defendant was properly denied a new trial. Vaughn v. State, 282 Ga. 99, 646 S.E.2d 212 (2007).

Because: (1) the defendant's noncustodial and spontaneous remark to an officer was admissible; (2) the defendant's mug shot did not erroneously place character in issue; and (3) the victim was conscious of the crime as the crime was being committed, a jury charge on theft by taking as a lesser-included offense of robbery by sudden snatching was not required, and a new trial was unwarranted. Bettis v. State, 285 Ga. App. 643, 647 S.E.2d 340 (2007), cert. denied, No. S07C1535, 2007 Ga. LEXIS 862 (Ga. 2007).

Given that both parties to a property dispute involving a house testified as to the home's value, including the appraisals, probative and non-hearsay evidence as to the value existed to support the jury's damages award such that the trial court erred in concluding otherwise and awarding a new trial on this basis. Perry v. Perry, 285 Ga. App. 892, 648 S.E.2d 193 (2007).

Because the state presented sufficient identification and circumstantial evidence linking the defendant to a burglary, including similar transaction evidence of a prior burglary, and in response to trial counsel's objection to the state's comment that the defendant was under the influence of drugs or alcohol at the time of the offense, the defendant did not object to the curative instruction given, thus, the defendant's motion for a new trial was properly denied. Bryant v. State, 285 Ga. App. 508, 646 S.E.2d 717 (2007).

Because: (1) the trial court did not err in giving the defendant's requested jury charge containing "level of certainty" language; (2) the defendant's spontaneous outbursts were properly admitted; and (3) a mistrial based on comments made regarding the defendant's decision to remain silent was not warranted, a felony murder conviction and resulting sentence were upheld on appeal; thus, the defendant was not entitled to a new trial. Tennyson v. State, 282 Ga. 92, 646 S.E.2d 219 (2007).

Based on trial counsel's testimony at a hearing on the defendant's motion for a new trial, and evidence that both counsel and the defendant extensively discussed the pros and cons of having a jury hear the case, sufficient extrinsic evidence showed that the defendant knowingly, voluntarily, and intelligently waived any right to a trial by jury. Whitaker v. State, 286 Ga. App. 143, 648 S.E.2d 396 (2007).

In a negligence action seeking damages for a disabling injury filed against a property owner by a friend who assisted the owner in building a fence, because the evidence supported a verdict against the friend, and the trial court's various evidentiary rulings regarding: (1) the admission of evidence under both the medical records and business records exceptions to the hearsay rule; (2) the admission of evidence regarding the parties' friendship; (3) the impeachment of the friend's credibility; (4) the opening statement presented by the owner's counsel; and (5) the use of a leading question regarding the friend's use of Oxycontin, did not support a different result, the friend was not entitled to a new trial or judgment notwithstanding the verdict. Imm v. Chaney, 287 Ga. App. 606, 651 S.E.2d 855 (2007).

The fact that one of the victims was told that the first defendant had a gun, believed such, became frightened as a result, and hurriedly gave the first defendant the cash demanded, amounted to sufficient circumstantial evidence from which the jury could find that the victim reasonably believed an offensive weapon was being used in the robbery; hence, the evidence was sufficient to sustain the armed robbery convictions of both defendants and uphold the denial of the defendant's motion for a new trial on this ground. Richard v. State, 287 Ga. App. 399, 651 S.E.2d 514 (2007).

While the state conceded that the state violated the Bruton rule by referring to the codefendant's comment in the state's opening statement, because neither of the defendants showed any harm by the error, that error was deemed harmless; moreover, given that the evidence, including eyewitness identification, was overwhelming, the trial court did not err in denying a new trial on this ground. Richard v. State, 287 Ga. App. 399, 651 S.E.2d 514 (2007).

Because: (1) an indictment adequately charged the defendant with aggravated assault; (2) sufficient evidence supported the charge; (3) similar transaction evidence was admitted for a proper purpose; and (4) defense counsel's alleged omissions would not have affected the outcome and therefore did not amount to the ineffective assistance of counsel, the trial court properly denied the defendant a new trial. May v. State, 287 Ga. App. 407, 651 S.E.2d 510 (2007).

Because the trial judge took the appropriate curative steps in denying an opposing driver's motions for both a mistrial and a new trial after the suing driver made an inadvertent reference to insurance, including rebuking the suing driver and issuing a curative instruction, the court did not abuse the court's discretion in denying the opposing driver's motions; moreover, the appeals court could not conclude that the opposing driver suffered any wrong or oppression as a result of the trial court's orders. Defusco v. Free, 287 Ga. App. 313, 651 S.E.2d 458 (2007).

Because sufficient evidence was presented via the testimony of the victim regarding the defendant's attack with a screwdriver, which was corroborated by the defendant's own admissions at trial, the defendant's simple battery conviction was upheld on appeal and a new trial was unwarranted; moreover, the defendant's characterization of the incident as one involving mutual argument did not in and of itself justify the actions. Rainey v. State, 286 Ga. App. 682, 649 S.E.2d 871 (2007).

In a boundary line dispute filed pursuant to O.C.G.A. § 23-3-61, the trial court properly entered judgment on a jury verdict in favor of the plaintiffs, two landowners, and against their neighbor, and then denied the neighbor a new trial, or alternatively a judgment notwithstanding the verdict, as: (1) the boundary line indicated on a plat reflecting the locations of monuments on the parcel owned by two landowners complied with the monuments referenced in the original warranty deed; and (2) the neighbor agreed to a special verdict form allowing the jury to find that the plat submitted by the two landowners accurately and sufficiently showed the true boundary line. Dover v. Higgins, 287 Ga. App. 861, 652 S.E.2d 829 (2007), cert. denied, No. S08C0402, 2008 Ga. LEXIS 237 (Ga. 2008).

Because the state's evidence sufficiently showed the first defendant's joint constructive possession of methamphetamine beyond mere spatial proximity, and the first defendant's act of testifying for the state without a promise of leniency or immunity did not unfairly prejudice the second defendant at the expense of that defendant's constitutional right not to testify, the trial court did not err in denying both defendants a new trial. Herberman v. State, 287 Ga. App. 635, 653 S.E.2d 74 (2007).

Despite the defendant's claim that the state failed to disprove a claim of self-defense, the appeals court upheld the defendant's aggravated assault conviction, because sufficient evidence was presented by the state to allow the jury to decide that the defendant's act of stabbing the weaponless victim amounted to excessive force. Thus, the defendant's motion for a new trial on the issue was properly denied. Richards v. State, 288 Ga. App. 814, 655 S.E.2d 690 (2007).

Given the overwhelming evidence of the defendant's guilt, including identification evidence from the victim and five other eyewitnesses, and the fact that none of the defendant's 21 ineffective assistance of counsel claims were sufficient enough to have led to a different outcome at trial, the defendant's convictions were upheld on appeal. Thus, an acquittal and a new trial were properly denied. Ruffin v. State, 283 Ga. 87, 656 S.E.2d 140 (2008).

Trial court properly denied the defendant a new trial because: (1) the trial court's admission of cash invoices and a jail inventory list was not improper; (2) the alleged misidentification evidence was irrelevant, given the overwhelming evidence of the defendant's positive identification; and (3) an ineffective assistance of counsel claim was abandoned, and otherwise, even if it was not abandoned, the appeals court held that the claim lacked merit. Bennett v. State, 289 Ga. App. 110, 657 S.E.2d 6 (2008).

Because: (1) the testimony of two witnesses, as well as that of the defendant, sufficiently established the element of venue; and (2) the trial court gave complete instructions on the defendant's defense of justification and self-defense, and thus, a charge on mistake of fact was not warranted, there was no reason to reverse the defendant's convictions of aggravated assault and possession of a firearm during the commission of a felony. Thus, the defendant's motion for a new trial was properly denied. Gaines v. State, 289 Ga. App. 339, 656 S.E.2d 871 (2008), cert. denied, 2008 Ga. LEXIS 379 (Ga. 2008).

In a contract dispute between a homeowner and a construction contractor hired to finish the homeowner's unfinished basement, the Court of Appeals of Georgia erred by reversing the trial court's denial of the homeowner's motion for a new trial because there was some evidence supporting the jury's finding that the contract between the parties was not so uncertain as to be unenforceable. Reebaa Constr. Co. v. Chong, 283 Ga. 222, 657 S.E.2d 826 (2008).

Despite waiving error regarding a show up identification, because: (1) a victim's identification of the defendant as one of the perpetrators of a burglary, robbery, and battery was sufficient and non-suggestive; and (2) the corroborating testimony from the defendant's two accomplices was admissible to support the defendant's convictions, as both accomplices testified as to the defendant's involvement in the crimes, those convictions were upheld on appeal; thus, new trial was properly denied. Carr v. State, 289 Ga. App. 875, 658 S.E.2d 419 (2008).

In light of the needs of the parent's two children, the need for a secure and stable home, and the children's physical, mental, emotional, and moral condition, the juvenile court was authorized to infer from that parent's past conduct that improvements made were insufficient to overcome reasons in support of the court's termination of parental rights order, and that this was in the best interest of the children involved; thus, that parent was properly denied a new trial. In the Interest of P.K.V.G., 289 Ga. App. 799, 658 S.E.2d 416 (2008).

While defendant made out a prima facie case of racial discrimination regarding the state's use of three peremptory strikes, sufficient race-neutral reasons existed for those strikes; thus, given the court's jury charges and recharge to the jury, the court's responses to questions from the jury, and waiver of improper bolstering objection on appeal, the defendant's aggravated assault and armed robbery convictions were upheld on appeal, as was court's denial of motion for a new trial. LeMon v. State, 290 Ga. App. 527, 660 S.E.2d 11 (2008).

Trial court did not abuse the court's discretion in denying the defendant's motion for a mistrial because an officer's hearsay statement that the defendant was a narcotics distributor was in response to a question, and there was nothing in the record to suggest that the statement was intentionally elicited by the state; other properly admitted evidence of similar transactions showed that the defendant had two prior convictions for selling crack cocaine to the same undercover agent involved in the case, essentially rendering the hearsay statement cumulative. Robertson v. State, 306 Ga. App. 721, 703 S.E.2d 343 (2010).

Trial court did not abuse the court's broad discretion in denying the defendant's motion for a mistrial because the trial court carefully considered the motion, offered to give a curative instruction, which the defendant declined, and determined that the testimony of the defendant's girlfriend was not harmful enough to warrant a mistrial. Fox v. State, 289 Ga. 34, 709 S.E.2d 202 (2011).

Trial court did not err in denying the defendant's motion for new trial, which was based upon the defendant's claim that the prosecutor's admonishment of the sole defense witness deprived the defendant of due process because the defendant did not show that the prosecutor's conduct dissuaded a defense witness from testifying or that the prosecutor induced materially less favorable testimony; the witness testified and did so in the defendant's favor, when the witness took the stand the witness did not invoke the Fifth Amendment and did not otherwise refuse to answer any question posed to the witness, and the defendant's lawyer made no attempt to show that the defense witness had made the purported prior inconsistent statement, that the cocaine at issue, in fact, had belonged to the witness, acknowledging at the new trial hearing that counsel simply had made a strategic decision not to ask the witness that question. Terry v. State, 308 Ga. App. 424, 707 S.E.2d 623 (2011).

Trial court did not abuse the court's discretion by refusing to declare a mistrial because the prosecutor's remarks during closing argument did not deprive the defendant of a fair trial since the prosecutor's remarks did not insinuate that the defendant had attempted to kill any of the officers involved in the case, but instead, the remarks related, in part, to the defendant's obviously precarious situation given the investigator's response to the investigator's encounter with the defendant, namely, drawing the investigator's gun; after being cautioned by the trial court that the wide latitude afforded counsel during closing argument was not boundless, the prosecutor did not revisit the point concerning police officers but turned to the more narrow encounter between the defendant and the victim, which gave rise to the aggravated assault count. Davis v. State, 308 Ga. App. 7, 706 S.E.2d 710 (2011).

Trial court did not err in denying the defendant's motion for mistrial on the ground that certain testimony was beyond the scope of the state's pre-trial notice because the evidence was essentially cumulative of the witness's testimony that the defendant pointed a pistol at the witness, and it was highly probable that the testimony did not contribute to the verdicts given the weight of the evidence implicating the defendant; it was not clear from the witness's testimony whether the defendant's display of the defendant's pistol and the defendant's query whether the witness was "still brave" was so closely tied to the defendant's act of pointing the defendant's pistol at the witness that the notice provided sufficient particulars of the incident such that the defendant's defense could not have been harmed by the failure to provide more specific information. Pineda v. State, 288 Ga. 612, 706 S.E.2d 407 (2011).

Trial court did not err when the court denied the defendant's motion for mistrial or for new trial following the testimony of an eyewitness to the shooting because a curative instruction preserved the defendant's right to a fair trial and, along with the witness's subsequent admission that the witness had never seen the defendant dealing drugs, was sufficient to counter any alleged harm caused by the witness's comment. Rafi v. State, 289 Ga. 716, 715 S.E.2d 113 (2011).

Trial court did not err in denying the defendant's motion for mistrial because the prosecutor's opening statement, which informed the jury that although the jury could hear a claim that the defendant and the codefendant were carjacked and forced to try to elude the police, the evidence would show that there were only two occupants in the vehicle that led police on the high-speed chase, referred to a statement by the defendant and not the codefendant and did not inculpate either the defendant or the codefendant; therefore, the defendant's Sixth Amendment right to confront witnesses was not violated. Anderson v. State, 311 Ga. App. 732, 716 S.E.2d 813 (2011).

Trial court did not err in denying a patient's motion for a new trial after a jury returned a verdict in favor of a doctor in the patient's medical malpractice action because neither the doctor nor the doctor's expert attempted to establish the applicable standard of care through their personal practices in violation of a motion in limine that prohibited the parties from using the personal practices of expert witnesses to establish the applicable standard of care. Dendy v. Wells, 312 Ga. App. 309, 718 S.E.2d 140 (2011).

Trial court did not err in denying motions for mistrial due to an investigator's reference to gang signs because the defendant and the codefendant were not denied the right to a fair trial; the investigator's statement did not implicate the defendant or the codefendant in gang activity, and the trial court instructed the jurors to disregard the investigator's reference to gang signs. Hawkins v. State, 316 Ga. App. 415, 729 S.E.2d 549 (2012).

Considering the nature of the state's improper reference, the other evidence in the case, and the trial court's and counsel's actions in dealing with the impropriety, the trial court did not abuse the court's discretion by denying the defendant's motion for a mistrial; O.C.G.A. § 17-8-75 did not apply because the state did not state prejudicial facts that were not in evidence and did not inject into the case illegal elements but simply made an inadvertent reference to the nature of a hearing at which the victim's statement differed from the victim's testimony at trial. Lewis v. State, 317 Ga. App. 218, 735 S.E.2d 1 (2012).

Slides shown during prosecutor's opening argument.

- Trial court did not deprive the defendant of a fair trial by failing to declare a mistrial sua sponte after the prosecutor showed the jury slides during the prosecutor's opening statement because when the defendant objected, the trial court took immediate corrective action, ordering that the slides be taken down, and the defendant did not seek additional relief in the form of a curative instruction or a mistrial; the trial court did not abuse the court's discretion in concluding that the slides were inappropriately argumentative for opening statement, and the trial court instructed the jury before opening statements and again after the close of the evidence that the prosecutor's opening statements were not evidence. Dolphy v. State, 288 Ga. 705, 707 S.E.2d 56 (2011).

Issue of witness credibility did not warrant a new trial.

- Despite the defendant's challenge to the sufficiency of the evidence as dependent on the trustworthiness of the principal state witness, who was a recidivist drug offender, as lacking in credibility, because the appeals court did not decide issues of witness credibility, this allegation did not warrant a new trial. Head v. State, 288 Ga. App. 205, 653 S.E.2d 540 (2007).

Because: (1) the defendant was not in custody when the challenged statements to a polygraph examiner were made; (2) the intent element of simple battery or simple assault was not inconsistent with the mens rea required for a charge of aggravated assault; and (3) a sufficiency challenge posed against a conviction for involuntary manslaughter was rendered moot, as such merged with an aggravated assault conviction for the purposes of sentencing, a new trial was properly denied. Ramirez v. State, 288 Ga. App. 249, 653 S.E.2d 837 (2007).

Because: (1) the trial court did not err in denying a patient's requested charge on the exercise of the requisite skill and care required of a physician, as the charge given by the court gave a full and correct statement of the law regarding the care and skill required of a physician and the proof required to support a medical malpractice claim; and (2) no abuse of discretion resulted from the trial court's refusal to strike a challenged defense expert's testimony, as a question of fact existed as to whether the expert applied the appropriate standard, and it was up to the jury to weigh this testimony and determine if the testimony met the standard under the court's charge, the patient was properly denied a new trial. West v. Breast Care Specialists, LLC, 290 Ga. App. 521, 659 S.E.2d 895 (2008).

Defendant's new trial motion based on insufficient evidence lacked merit as the evidence was sufficient to support the defendant's convictions for aggravated assault and a weapons possession charge under O.C.G.A. §§ 16-5-21(a)(2) and16-11-106(b)(1); issues of credibility regarding the witnesses' identification of the defendant as the shooter were within the jury's province pursuant to former O.C.G.A. § 24-9-80 (see now O.C.G.A. § 24-6-620). Williams v. State, 317 Ga. App. 248, 730 S.E.2d 726 (2012).

Nonresponsive answer by accomplice did not amount to mistrial.

- Trial court did not err by denying the defendant's motion for mistrial with respect to a nonresponsive answer by an accomplice when the accomplice was asked on direct examination whether the accomplice had a conversation with the defendant about a pistol in the defendant's possession on the day of the shooting because a nonresponsive answer that impacted negatively on the defendant's character did not improperly place the defendant's character in issue; moreover, the defendant declined the trial court's offer to give a curative instruction with regard to the statement. Lewis v. State, 287 Ga. 210, 695 S.E.2d 224 (2010).

Waiver of Fourth Amendment rights due to parole status.

- Trial court erred in granting the defendant's motion for a new trial, and then granting a motion to suppress the evidence seized after an automobile search, given that law enforcement had reliable information that the defendant was transporting drugs as: (1) the defendant was on parole, and that as a condition thereof, had specifically consented to a warrantless search; (2) the information received from the informant about the defendant's actions was reliable; and (3) no evidence was presented that the officers acted in bad faith or to harass the defendant. State v. Cauley, 282 Ga. App. 191, 638 S.E.2d 351 (2006), cert. denied, 2007 Ga. LEXIS 148 (Ga. 2007).

Effect on motion for new trial of vacation of prior judgment.

- While sufficient evidence of the defendant's criminal intent supported both an aggravated battery and reckless conduct conviction, and the latter was vacated based on the doctrine of merger, because no other evidence was presented supporting the defendant's amended motion for a new trial, such was properly denied. Collins v. State, 283 Ga. App. 188, 641 S.E.2d 208 (2007).

Motion for new trial properly denied.

- Trial court properly denied the defendant's amended motion for a new trial, as: (1) the defendant waited too long to assert a constitutional speedy trial violation and failed to show prejudice from any delay; (2) similar transaction evidence was properly admitted; and (3) two counts of child molestation did not merge for the purposes of sentencing. Parker v. State, 283 Ga. App. 714, 642 S.E.2d 111, cert. denied, 552 U.S. 995, 128 S. Ct. 496, 169 L. Ed. 2d 347 (2007).

It was not error for the trial court to deny the defendant's motion for new trial on the ground of inordinate appellate delay because the defendant provided no evidence of prejudice arising from the delay but only speculated that if a new trial were granted, some witnesses would not be available; in addition to the defendant's failure to introduce evidence regarding any such witnesses, the defendant did not advance any argument that the appeal had been hampered by the delay in any way. Pineda v. State, 288 Ga. 612, 706 S.E.2d 407 (2011).

Intent element established.

- Trial court properly denied the defendant's motion for a new trial on grounds that the state failed to prove that the defendant intentionally threatened two deputies the defendant forced off the road with a car, given evidence that prior to driving directly at the deputies, the car was being used offensively toward others by forcing those individuals off the road, and thereafter, in driving toward the two deputies at 90 miles per hour, a jury could infer that the defendant intended to threaten the deputies in hopes of forcing the deputies from the road. Adams v. State, 280 Ga. App. 779, 634 S.E.2d 868 (2006).

Evidence sufficient.

- Jury was entitled to find the defendant guilty of aggravated assault, charged in the indictment "with the intent to rob," based on the corroboration of the defendant's admission to going on a "lick," which meant to go find someone to rob, and that the defendant knew what a passenger was going to do when that passenger reached out of the car window in an attempt to snatch the elderly victim's purse, resulting in the victim being struck by the car and falling to the ground; hence, the trial court did not err in denying the defendant's amended motion for a new trial. Jackson v. State, 281 Ga. App. 506, 636 S.E.2d 694 (2006).

Because the defendant's admission to possessing MDMA was direct evidence supporting guilt, and the admission served as a direct connection to the contraband, the trial court did not err in denying the defendant's motion for a new trial based on the insufficiency of the evidence. Barrino v. State, 282 Ga. App. 496, 639 S.E.2d 489 (2006).

Because: (1) the evidence presented by the state against the defendant was sufficient to support the charges of armed robbery, hijacking a motor vehicle, possession of a firearm during commission of a felony, and aggravated assault with a deadly weapon; (2) separate convictions for armed robbery and hijacking a motor vehicle did not violate double jeopardy; (3) the state properly asked leading questions of the state's witness; and (4) counsel was not ineffective in failing to file a futile suppression motion, the trial court properly denied the defendant's motion for a new trial. Dumas v. State, 283 Ga. App. 279, 641 S.E.2d 271 (2007).

Because evidence existed that the defendant was present when the crimes charged were committed, and the jury could infer a shared criminal intent with that of the actual perpetrator from the defendant's conduct before and after the crimes were committed, the evidence was sufficient to authorize the defendant's convictions as a party to those crimes. Hill v. State, 281 Ga. 795, 642 S.E.2d 64 (2007).

Officer's description of the defendant's speech, behavior, bloodshot eyes, odor, performance on the field sobriety tests, and the result of the alco-sensor test, when coupled with the defendant's own testimony, were sufficient to authorize a jury to convict the defendant of driving under the influence of alcohol to the extent of being a less safe driver; thus, the trial court properly denied the defendant a new trial. Renkiewicz v. State, 283 Ga. App. 692, 642 S.E.2d 384 (2007).

Evidence was sufficient to support the defendant's convictions for armed robbery, aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon beyond a reasonable doubt, and the trial court properly denied the defendant's motions for directed verdict and new trial because the jury could have determined that a witness's testimony provided corroboration for the codefendant's identification of the defendant; further corroboration for the testimony of the witness and the codefendant was provided by a neighbors' description of the robbery and shooting, by the description of the codefendant's wife of the codefendant's demeanor and behavior that day, and by physical evidence found at the scene. Williamson v. State, 308 Ga. App. 473, 708 S.E.2d 57 (2011).

Jury instructions proper.

- As the jury was properly instructed as to the charged offense of criminal attempt to obtain possession of a controlled substance by forgery, the defendant did not request that the word "forgery" be defined, and the defendant did not take the position that forgery was a lesser-included offense of the crime of attempting to obtain possession of a controlled substance by forgery, a new trial was properly denied; further, the term "forgery," was not so obscure or technical that the term required the court to sua sponte define the term for the jury. Sosebee v. State, 282 Ga. App. 905, 640 S.E.2d 379 (2006).

Because the jury instructions issued by the trial court were neither confusing nor misleading, and provided full and fair instruction on the issues in the case, specifically, as to the value of the stolen property the defendant possessed, the trial court did not err in denying the defendant's motion for new trial on this ground. Price v. State, 283 Ga. App. 564, 642 S.E.2d 191 (2007).

Trial counsel was not ineffective for failing to request in writing a jury instruction that excluded a statement that witnesses were presumed to speak the truth unless impeached, and the trial court did not clearly err in denying the defendant's motion for new trial on this ground. The court charged the jury that the jury could consider a number of factors, including a witness's manner of testifying, the witnesses' means and opportunity for knowing the facts to which the witnesses testified, and the probability or improbability of the witnesses' testimony. Stanford v. State, 288 Ga. App. 463, 654 S.E.2d 173 (2007), cert. denied, 2008 Ga. LEXIS 461 (Ga. 2008).

Because the trial court properly instructed the jury on the law regarding the use of prior consistent statements and on the defense of accident, the appeals court lacked any reason to reverse the defendant's aggravated battery and cruelty to children convictions; thus, the trial court properly denied the defendant's motion for a new trial. Watkins v. State, 290 Ga. App. 41, 658 S.E.2d 812 (2008).

Instruction cured reading of wrong indictment.

- Because the state presented sufficient evidence showing the defendant's involvement in the sale of cocaine and the sale of cocaine within 1,000 feet of public housing project as party to the crimes, and because the judge's instruction and explanation after reading the wrong indictment to the jury at the trial cured any error, the defendant's convictions were upheld on appeal, and a mistrial based on the latter was properly denied; moreover, the defendant was properly denied a new trial. Walker v. State, 290 Ga. App. 749, 660 S.E.2d 844 (2008), cert. dismissed, No. S08C1701, 2008 Ga. LEXIS 776 (Ga. 2008).

Due process rights for chemical testing.

- Trial court properly denied the defendant's amended motion for a new trial, holding that the administration of breath tests pursuant to Ga. Comp. R. & Regs. 92-3-.06(12)(b) did not violate the due process clause under both U.S. Const., amend. 5 or Ga. Const. 1983, Art. I, Sec. I, Para. I, given that: (1) the claim was raised for the first time within the new trial motion, and was thus untimely; (2) the defendant had an alternative remedy under the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-1; (3) the defendant failed to show that the Division of Forensic Sciences (DFS) eliminated meaningful procedures for conducting breath tests when it promulgated the rule; and (4) the techniques and methods approved by DFS were sufficient to ensure fair and accurate testing. Palmaka v. State, 280 Ga. App. 761, 634 S.E.2d 883 (2006).

Denial of motion to strike testimony on cross-examination as hearsay.

- When a trial court overrules a motion to strike testimony on cross-examination as being hearsay because counsel had an opportunity previously to object to that testimony, had let it become evidence, and had called it to the attention of the witness, thus being the party going into the matter and allowing the opposing party to cross-examine the party with reference thereto, the admission of this evidence over a party's objection will, in no event, require the grant of a new trial when that party had substantially the same evidence admitted without objection. Hill Aircraft & Leasing Corp. v. Tyler, 161 Ga. App. 267, 291 S.E.2d 6 (1982).

No prosecutorial misconduct during closing.

- Prosecutor's statements during closing argument were within the wide leeway granted to counsel to argue all reasonable inferences from the evidence pursuant to O.C.G.A. § 17-8-75(c), including that a former girlfriend whom the defendant forced to purchase a gun was fearful of the surroundings and that another girlfriend was a battered woman, such that there was no cause to grant a new trial. Varner v. State, 285 Ga. 300, 676 S.E.2d 189 (2009).

Trial court did not err in denying the defendant's motion for mistrial on the ground that the state made improper arguments in closing because the challenged comments referred to evidence in the case, which was the defendant's refusal to submit to testing and other manifestations of impairment, and, thus, were not improper under O.C.G.A. § 17-8-75; considering the strength of the state's evidence, it was highly unlikely that the prosecutor's closing argument contributed to the guilty verdict. Crusselle v. State, 303 Ga. App. 879, 694 S.E.2d 707 (2010).

Defendant was not entitled to a new trial based upon the prosecutor's misstatement of the evidence during closing arguments because the defendant did not seek a ruling on the defendant's objection nor any court action to remedy the alleged error. Williams v. State, 303 Ga. App. 222, 692 S.E.2d 820 (2010).

Trial court did not err by refusing to declare a mistrial after the prosecutor stated in the course of making an objection during the defense's closing argument that the state had never furnished the accomplice's custodial statement to another accomplice because the trial court properly noted at the time the statement was made that the jury had to consider the evidence adduced on that point, and the court had also previously instructed the jury that statements of counsel did not constitute evidence. Lewis v. State, 287 Ga. 210, 695 S.E.2d 224 (2010).

Trial court did not abuse the court's discretion in denying the codefendant's motion for new trial because when viewed in the context in which it was made the prosecutor's argument referencing magic and misdirection and request that the jury focus on the evidence did not exceed the wide latitude permitted in closing argument. Rainly v. State, 307 Ga. App. 467, 705 S.E.2d 246 (2010).

Trial court did not abuse the court's discretion in denying the defendant's motion for a mistrial on the ground that the prosecutor misled the jury during closing argument because the trial court took action sufficient to prevent the prosecutor's misstatement from misleading the jury; the prosecutor immediately restated the principle of law using the proper language, and the trial court gave complete and correct instructions to the jury. Long v. State, 307 Ga. App. 669, 705 S.E.2d 889 (2011).

Trial court did not err by denying the defendant's motion for mistrial based on the prosecutor's use of the term "confessed" during closing argument because the prosecutor's characterization of the defendant's statement to a detective was not an extraneous matter outside the facts legitimately produced during trial; the trial court instructed the jury that the evidence did not include opening and closing statements of the attorneys, and the defendant failed to show that the defendant was prejudiced or harmed by the prosecution's characterization of the statement. Arnett v. State, 311 Ga. App. 811, 717 S.E.2d 312 (2011).

Trial court did not abuse the court's discretion in denying the defendant a mistrial because there was no indication that either the jury or the trial court heard the prosecutor's remark that the defendant was "swaying" during the defendant's horizontal gaze nystagmus test nor was the remark recorded; the trial court explained to the jury, both in the court's preliminary and closing instructions, that evidence consisted only of witness testimony and exhibits and that the jurors were to decide the case for themselves, based solely on the testimony heard from the witness stand and any exhibits admitted into evidence. Travis v. State, 314 Ga. App. 280, 724 S.E.2d 15 (2012).

Trial court did not err in denying the defendant's motion for mistrial on the ground that the state made improper statements to the jury during closing arguments because the state properly argued that the defendant did not rebut or explain the state's evidence; the trial court sustained the defendant's objections to the state's remarks and repeatedly instructed the jury that the burden of proof was upon the state and that the burden never shifted to the defendant. Lipscomb v. State, 315 Ga. App. 437, 727 S.E.2d 221 (2012).

Trial court was not required to declare a mistrial sua sponte because the defendant did not show that there was a manifest necessity for a mistrial; the trial court instructed the jury to disregard the prosecutor's improper statement and confirmed that the jury understood the instruction and would follow the instruction. Davenport v. State, 316 Ga. App. 234, 729 S.E.2d 442 (2012).

No prosecutorial misconduct in monitoring telephone calls.

- Trial court did not err when the court denied the defendant's motion for new trial on the basis of prosecutorial misconduct because the trial court determined that while there was prosecutorial misconduct since the county district attorney's office had access to the jail's telephone monitoring system without ensuring the blockage of inmate communications with their attorneys, the court also determined that the extent of misconduct was not sufficient to warrant granting a new trial to the defendant specifically; the prosecutor assured the defendant's trial counsel that no one working on the defendant's case had listened to any of appellant's telephone calls. Kitchens v. State, 289 Ga. 242, 710 S.E.2d 551 (2011).

Claims of juror misconduct.

- Because the jurors testified at the motion for new trial hearing that deliberations did not begin before the close of the evidence, and even a dismissed juror, who allegedly communicated to trial counsel's paralegal that such had occurred, denied making such a statement, the defendant was not entitled to a new trial based on juror misconduct. Meeker v. State, 282 Ga. App. 77, 637 S.E.2d 806 (2006).

Trial court properly denied the defendant a new trial because: (1) a mistrial based on an allegation of juror misconduct was unwarranted, given the lack of evidence that a dismissed juror impermissibly influenced other jurors by discussing a conversation that the dismissed juror had with the victim; and (2) the trial court dismissed the juror within minutes after the alleged inappropriate contact. Lawrence v. State, 289 Ga. App. 163, 657 S.E.2d 250 (2008).

Trial court did not abuse the court's discretion by refusing to declare a mistrial on the ground that an alternate juror made improper comments about the defendant's guilt because the record disclosed no basis upon which to conclude that the misconduct was so prejudicial as to deny the defendant due process; the trial court thoroughly questioned each individual juror under oath about what he or she had heard and whether he or she had the ability to remain fair and impartial and found that each juror could remain impartial. Gresham v. State, 303 Ga. App. 682, 695 S.E.2d 73 (2010).

Jurors as convicted felons.

- Although the state notified the defendant and the trial court soon after trial that two jurors were convicted felons, because there was no evidence establishing the identity of either juror, documenting the convictions, or showing that either had not had their rights restored, the defendant's due process rights were not violated; thus, denial of a motion for new trial on this ground was proper. Jones v. State, 289 Ga. App. 767, 658 S.E.2d 386 (2008).

Conversation between victim and juror.

- There was no need for a new trial when the victim, while sitting down outside the courtroom awaiting the start of the day's proceedings, was joined by a juror who sat down next to the victim and made a casual remark concerning the weather; the victim made a noncommittal response and the juror upon recognizing the victim as a witness, left the side of the witness and engaged in no further conversation. Kennedy v. State, 179 Ga. App. 587, 347 S.E.2d 604 (1986).

Juror investigated accident scene.

- Trial court could not grant a new trial to plaintiff after a jury held for defendant, based on a juror's testimony that the jury foreperson personally investigated the scene of the accident; the testimony impeached the verdict which the jury had returned and the trial court had no power to receive, hear, or consider such evidence. Newson v. Foster, 261 Ga. App. 16, 581 S.E.2d 666 (2003).

Effect of waiver of objections.

- Because a father waived any objections concerning the form of the verdict, the trial court did not abuse the court's discretion when the court denied a motion for new trial on claims for tortious interference and misappropriation of trade secrets asserted against the father's son. Lou Robustelli Mktg. Servs. v. Robustelli, 286 Ga. App. 816, 650 S.E.2d 326 (2007).

Ineffective assistance of counsel not found.

- Trial court properly denied the defendant's motion for a new trial as defense counsel did not give ineffective assistance of counsel by failing to request a Jackson-Denno hearing as there was no basis to object to the introduction of defendant's statement to an investigator as: (1) the defendant was not under arrest at the time of the statement, nor would a reasonable person have understood that the person was under arrest; (2) there was no evidence that the officer sent to insure that the defendant did not leave the hospital before the investigator arrived had any contact with the defendant; (3) that the defendant was in pain or taking pain medication did not render defendant's statement involuntary; and (4) the defendant failed to show that the defendant was prejudiced by the failure to request the hearing. Alwin v. State, 267 Ga. App. 236, 599 S.E.2d 216 (2004).

Trial court's denial of the defendant's motion for a new trial based on ineffective assistance of counsel was not clearly erroneous as defense counsel was not ineffective in failing to preserve an objection to a slip of the tongue in the jury charge that did not mislead the jury and as the decision not to request a jury charge on alibi and mere association was a matter of trial strategy. Brantley v. State, 271 Ga. App. 733, 611 S.E.2d 71 (2005).

Trial court properly denied the defendant's motion for a new trial as defense counsel did not provide ineffective assistance of counsel in failing to preserve an objection to the denial of a motion for a mistrial; the motion was based on a deadlocked jury and it was not error to fail to preserve a claim that the jury deliberated without one member present; further, the defendant failed to show that the jury deliberated with only 11 members present, so the motion would not have been successful. Brantley v. State, 271 Ga. App. 733, 611 S.E.2d 71 (2005).

Trial court did not abuse the court's discretion in denying the defendant's motion for a new trial because counsel was not ineffective; counsel was well-prepared, filed pretrial motions, thoroughly cross-examined witnesses, preserved counsel's objections, and successfully excluded hearsay testimony and physical evidence, it was counsel's practice to advise clients of the meaning of trial as a recidivist, of the possible sentences, and of the risks of going to trial, and counsel obtained an acquittal on the greater charge of possession of cocaine with intent to distribute. Allen v. State, 272 Ga. App. 23, 611 S.E.2d 697 (2005).

Claim of improper juror contact.

- Trial court properly denied the defendant's motion for a new trial because: (1) a juror alleged that an unknown person entered the jury room during deliberations and answered a question regarding an issue about which the jury was confused; (2) the juror recalled that the person was male, but could not recall any other details, including whether or not the person was a representative of the prosecutor's office or the exact nature of the question that was supposedly answered; (3) eight other members of the jury panel and the alternate contradicted the testimony; and (4) one of the jurors not present at the new trial hearing submitted a sworn affidavit stating that the juror did not recall any person entering the jury room during deliberations. Cook v. State, 276 Ga. App. 803, 625 S.E.2d 83 (2005).

Defense strategy not to allow defendant to testify.

- Defendant failed to show that counsel was deficient and that any alleged deficiency prejudiced the defense because counsel's decision not to call the defendant as a witness at a trial for malice murder was based on sound trial strategy in that counsel balanced the damage to the defendant's justification defense with the risk that defendant's criminal record would have been introduced if the defendant took the stand. Nixon v. State, 279 Ga. 164, 611 S.E.2d 9 (2005).

To facilitate becoming naturalized citizen.

- It was not an abuse of discretion to deny the defendant's motion for a new trial, requested to facilitate the defendant's efforts to become a naturalized citizen because the trial court considered that the defendant's sentence for giving a false name to an officer had long since been served, that six years had passed since sentencing, and that the sentence was within the statutory guidelines for misdemeanors; claims the defendant's guilty plea was not voluntary were of no avail as the defendant failed to move to withdraw the plea or to appeal, and the times for doing so had expired. Elias v. State, 272 Ga. App. 506, 613 S.E.2d 157 (2005).

No error in finding foreign speaking defendants understood proceedings.

- Trial court did not err in denying the defendants' motions for new trial on the ground that the defendants could not understand the proceedings. Defendants' claim lacked credibility because at no point during the pre-trial motions hearing or trial did the defendants object or in any way indicate that the defendants could not understand the Spanish translation of the proceedings; during the sentencing hearing, all three defendants responded affirmatively when the trial court specifically asked each of the defendants, through the Spanish interpreter, if the defendants had understood their interpreters and everything the interpreters had explained to the defendants about the trial. Cruz v. State, 305 Ga. App. 805, 700 S.E.2d 631 (2010).

Inadequate translation of proceedings by interpreter.

- Trial court did not err in granting the defendant's motion for new trial based on the ground that the defendant's court-appointed interpreter inadequately translated the proceedings to the defendant because the trial judge made a factual finding that the defendant did not understand what was transpiring during the trial and that the lack of understanding prejudiced the defendant at trial. State v. Tunkara, 298 Ga. 488, 782 S.E.2d 278 (2016).

Batson claim unsupported.

- Because the record did not support the defendant's Batson claim, the trial court did not err in denying the defendant's motion for a new trial. Quillian v. State, 279 Ga. 698, 620 S.E.2d 376 (2005).

Because: (1) the record did not demonstrate that the defendant's sanity or competency was or should have been a significant issue at trial; and (2) the defendant failed to support an assertion that competency should have been raised, the defendant failed to prove the prejudice prong of an ineffective assistance of counsel claim due to counsel's failure to request an independent psychiatric examination. Thus, a new trial on this ground was unwarranted. Jennings v. State, 282 Ga. 679, 653 S.E.2d 17 (2007).

Services with no value to the client.

- Trial court did not err in denying a former employee benefits plan administrator's motion for new trial on the ground that the jury verdict on the administrator's counterclaims were inconsistent because the verdict could be reasonably interpreted to mean that although the administrator did perform work on a client's behalf, the work had no value to the client; the client presented evidence that the administrator's software platform was of no value to the client, and there was evidence that the client had to expend funds to correct errors made by the administrator. Hewitt Assocs., LLC v. Rollins, Inc., 308 Ga. App. 848, 708 S.E.2d 697 (2011).

Divorce action.

- In a divorce action, the trial court did not err in denying a wife's motion for a new trial as: (1) the court did not err in splitting the federal income tax dependency exemption; and (2) no error resulted from establishing the schedule of physical custody between the parents, the distribution of the parties' marital property, and excepting the custody provisions from supersedeas. Frazier v. Frazier, 280 Ga. 687, 631 S.E.2d 666 (2006).

Trial court was not required to grant a new trial based on evidence that the husband and the wife lived together and engaged in sexual relations after the petition for divorce was filed and before the final judgment was entered. McCoy v. McCoy, 281 Ga. 604, 642 S.E.2d 18 (2007).

Parent surrendering parental rights not entitled to new trial.

- Because a parent validly executed a written surrender of parental rights, that parent lacked any right to notice of the proceedings regarding the custody the three children involved and was no longer a "party" to those proceedings; as a result, the parent's extraordinary motion for a new trial seeking to set the custody orders entered after the surrender was accepted was properly denied. In the Interest of A.C., 283 Ga. App. 743, 642 S.E.2d 418 (2007).

No violation of bribery statute warranting new trial.

- Trial court did not err in denying the defendant's motion for new trial because there was no violation of the bribery statute, O.C.G.A. § 16-10-2(a)(1), when the record contained no evidence that the state made payments or promised benefits in exchange for testimony at the defendant's trial with the purpose of influencing informants in the performance of such testimony, and it was up to the jury to weigh the evidence of the state's arrangements with the informants in assessing their credibility; the informants were offered leniency, and one of the informants was paid cash, in exchange for their assistance in drug investigations by the police, only a portion of which involved the controlled buys with the defendant, and although the parties could have contemplated that the informants would testify upon the completion of the investigation, there was no evidence that the informants were paid in exchange for their testimony. Moreland v. State, 304 Ga. App. 468, 696 S.E.2d 448 (2010).

Because the trial court's grant of a new trial stemmed from trial error, the defendant could not be retried on an offense of per se DUI, given that the defendant was adjudged not guilty of that charge based upon the insufficiency of the evidence; thus, the trial court erred in denying the plea in bar. Shah v. State, 288 Ga. App. 788, 655 S.E.2d 347 (2007).

No inconsistent verdict in criminal case.

- Defendant's argument that the jury rendered an unlawful inconsistent verdict presented no basis for reversal of the defendant's convictions for armed robbery, O.C.G.A. § 16-8-41, hijacking a motor vehicle, O.C.G.A. § 16-5-44.1(b), and aggravated assault, O.C.G.A. § 16-5-21, because the appellate record did not make clear the jury's reasoning; the jury was authorized to find the defendant guilty even if the jury found that the defendant used a replica or device having the appearance of a weapon to commit armed robbery. Smith v. State, 304 Ga. App. 708, 699 S.E.2d 742 (2010), overruled on other grounds, Reed v. State, 291 Ga. 10, 727 S.E.2d 112 (2012).

Trial court erred in granting the defendant a new trial as defense counsel's decision to present evidence of the defendant's two prior convictions for intent to distribute cocaine was in furtherance of defense counsel's reasonable trial strategy to portray the defendant as a drug dealer and to support the defense's theory that the defendant's fingerprint was found on the stolen car because the defendant sold drugs to someone driving the same car, not because the defendant was involved in the armed robbery of the two victims. State v. Reynolds, 332 Ga. App. 818, 775 S.E.2d 187 (2015).

Attorney fees awarded were reasonable.

- Trial court did not err in denying a law firm's motion for new trial after the court awarded the firm fees under a contingency fee contract because the jury found that the reasonable fee for the work the firm performed for a former client before the firm was discharged was $20,750; the city called as witnesses the attorney who represented the city in the client's lawsuit against the city, the firm's managing partner, and the firm's remaining partner, and the client called no witnesses and introduced no evidence but argued that the firm's own evidence presented at the trial showed the firm had performed 90 to 180 hours of work on the case, and suggested that a fee of 100 hours times $200 per hour was a reasonable fee under the contract. Jones, Martin, Parriz & Tessener Law Offices, PLLC v. Westrex Corp., 310 Ga. App. 192, 712 S.E.2d 603 (2011).

Order overruling motion to dismiss.

- Order overruling a demurrer (now motion to dismiss) is not proper ground of motion for new trial. Dixon v. Evans, 56 Ga. App. 583, 193 S.E. 470 (1937).

Overruling of demurrer (now motion to dismiss) to dispossessory warrant was reviewable by exceptions either direct or pendente lite, but not by motion for a new trial. Hinton v. Jackson, 78 Ga. App. 62, 50 S.E.2d 254 (1948).

Rulings upon sufficiency of pleadings are not a proper subject-matter for a motion for new trial. McJenkin Ins. & Realty Co. v. Burton, 92 Ga. App. 832, 90 S.E.2d 27 (1955).

Rulings on pleadings cannot be made a ground of a motion for new trial. Davis v. Buie, 197 Ga. 835, 30 S.E.2d 861 (1944); Southeastern Air Serv., Inc. v. Carter, 78 Ga. App. 8, 50 S.E.2d 156 (1948).

Ruling of court in striking plea cannot be made ground of motion for new trial. Finance Serv. Co. v. Rich, 41 Ga. App. 831, 155 S.E. 60 (1930).

Exception to allowance of amendment allegedly changing cause of action from one on breach of express warranty to one for breach of implied warranty cannot be made in motion for new trial. Watkins v. Muse, 78 Ga. App. 17, 50 S.E.2d 90 (1948).

Objection to ruling on motion to strike amendment to defendant's answer is not proper ground of motion for new trial. Cantrell v. Kaylor, 203 Ga. 157, 45 S.E.2d 646 (1947).

Exception to denial of motion to quash indictment cannot be properly made ground of motion for new trial. Frady v. State, 212 Ga. 84, 90 S.E.2d 664 (1955).

Trial court's judgment overruling challenge to array cannot be brought into review by motion for new trial. Ivey v. State, 84 Ga. App. 72, 65 S.E.2d 282 (1951).

Objection that sentence imposed in criminal case is for any reason illegal or irregular cannot be made ground of motion for new trial. Wilson v. State, 84 Ga. App. 703, 67 S.E.2d 164 (1951).

Similar transaction witness's recantation.

- Trial court did not err in refusing to grant the defendant a new trial when a similar transaction witness recanted prior claims of molestation during the hearing on the motion, as evidence of a witness's recantation merely went to impeach the witness's testimony. Chauncey v. State, 283 Ga. App. 217, 641 S.E.2d 229 (2007).

Constitutional questions cannot be raised for the first time by motion for new trial. Tucker v. City of Atlanta, 211 Ga. 157, 84 S.E.2d 362 (1954).

One who has filed a plea of guilty in a criminal case cannot move for a new trial. Welch v. State, 63 Ga. App. 277, 11 S.E.2d 42 (1940).

Motion for new trial cannot be employed to withdraw guilty plea.

- Plea of guilty may, as a matter of right, be withdrawn before sentence, and after sentence judge may permit the plea to be withdrawn upon meritorious grounds, addressed to the judge's discretion, but neither before nor after sentence can a motion for new trial be employed as a means of withdrawing a plea of guilty. Welch v. State, 63 Ga. App. 277, 11 S.E.2d 42 (1940).

Objections which go to judgment only.

- Movant cannot in motion for new trial properly assign error on judgment entered upon verdict. Kinsey v. Avans, 196 Ga. 428, 26 S.E.2d 787 (1943).

Objections which go to judgment only, and do not extend to verdict, cannot properly be made grounds of motion for new trial; no new trial is necessary to correct judgment or decree. If judgment or decree is erroneous or illegal, direct exception should be taken to it at proper time. Smith v. Wood, 189 Ga. 695, 7 S.E.2d 255 (1940).

Violation of rule of sequestration.

- Trial court did not err by denying the codefendant's motion for mistrial when the assistant district attorney violated the rule of sequestration because a violation of the rule went only to credibility, not admissibility, and the proper remedy was not a mistrial. Hawkins v. State, 316 Ga. App. 415, 729 S.E.2d 549 (2012).

Am. Jur. 2d.

- 58 Am. Jur. 2d, New Trial, § 13 et seq.

Ineffective Assistance of Counsel, 5 POF2d 267.

C.J.S.

- 23A C.J.S., Criminal Law, § 1928 et seq. 66 C.J.S., New Trial, § 1 et seq.

ALR.

- Contract between juror and party or attorney during trial of civil case as ground for new trial, 55 A.L.R. 750; 62 A.L.R.2d 298.

Duty of attorney to call witness or to procure or aid in procuring his attendance, 56 A.L.R. 174.

Conduct of party in court room tending improperly to influence jury as ground for reversal or new trial, 57 A.L.R. 62.

Incompetency, negligence, illness, or the like, of counsel, as a ground for new trial or reversal in criminal case, 64 A.L.R. 436.

Comments by judge during examination or cross-examination of defendant in criminal trial as ground for new trial or reversal, 65 A.L.R. 1270.

Instruction or evidence as to conspiracy where there is no charge of conspiracy in indictment or information, 66 A.L.R. 1311.

Statement by witness after criminal trial tending to show that his testimony was perjured as ground for new trial, 74 A.L.R. 757, 158 A.L.R. 1062.

Counsel's appeal to racial, religious, social, or political prejudices or prejudice against corporations as ground for a new trial or reversal, 78 A.L.R. 1438.

Right of court to instruct or to communicate with jury in civil case in absence of counsel, 84 A.L.R. 220.

Irregularity in drawing names for a jury panel as ground of complaint by defendant in criminal prosecution, 92 A.L.R. 1109.

Excusing qualified juror drawn in criminal case as ground of complaint by defendant, 96 A.L.R. 508.

Knowledge by defendant or his attorney, before return of verdict in criminal case, of misconduct in connection with jury after their retirement as affecting right to new trial or reversal, 96 A.L.R. 530.

Furnishing or reading instructions to jury, in jury room, after retirement, as error, 96 A.L.R. 899.

Brief voluntary absence of defendant from court room during trial of criminal case as ground of error, 100 A.L.R. 478.

Inability to perfect record for appeal as ground for new trial, 107 A.L.R. 603.

Failure to comply with statute, constitutional provision, or court rule providing for giving instructions to jury in writing as prejudicial or reversible error, 115 A.L.R. 1332.

Disqualifying relationship unknown to juror as ground of new trial in criminal case, 116 A.L.R. 679.

Remedy of one convicted of crime while insane, 121 A.L.R. 267.

Impersonation or false statement by juror as to his identity as ground for new trial, 127 A.L.R. 717.

Statements, comments, or conduct of court or counsel regarding perjury, as ground for new trial or reversal in civil action or criminal prosecution other than for perjury, 127 A.L.R. 1385.

Physical condition or conduct of party, his family, friends, or witnesses during trial, tending to arouse sympathy of jury, as ground for continuance or mistrial, 131 A.L.R. 323.

Statements by a witness after criminal trial tending to show that his testimony was perjured, as ground for new trial, 158 A.L.R. 1062.

Reversal upon appeal by, or grant of new trial to, one coparty defendant against whom judgment was rendered, as affecting judgment in favor of other coparty defendants, 166 A.L.R. 563.

Contact or communication between juror and party or counsel during trial of civil case as ground for mistrial, new trial, or reversal, 62 A.L.R.2d 298.

Statements of witness in civil action secured after trial, inconsistent with his testimony, as basis for new trial on ground of newly discovered evidence, 10 A.L.R.2d 381.

Conditioning the setting aside of judgment or grant of new trial on payment of opposing attorney's fees, 21 A.L.R.2d 863.

Prejudicial effect of argument or remark that adversary was attempting to suppress facts, 29 A.L.R.2d 996.

Absence of judge from courtroom during criminal trial prior to time of reception of verdict, 34 A.L.R.2d 683.

Grant of new trial on issue of liability alone, without retrial of issue of damages, 34 A.L.R.2d 988.

New trial in criminal case because of newly discovered evidence as to sanity of prosecution witness, 49 A.L.R.2d 1247.

Remarks or acts of trial judge criticizing, rebuking, or punishing defense counsel in criminal case, as requiring new trial or reversal, 62 A.L.R.2d 166.

Contact or communication between juror and party or counsel during trial of civil case as ground for mistrial, new trial, or reversal, 62 A.L.R.2d 298.

Contact or communication between juror and outsider during trial of civil case as ground for mistrial, new trial, or reversal, 64 A.L.R.2d 158.

Propriety, and effect as double jeopardy, of court's grant of new trial on own motion in criminal case, 85 A.L.R.2d 486.

Consent as ground of vacating judgment, or granting new trial, in civil case, after expiration of term or time prescribed by statute or rules of court, 3 A.L.R.3d 1191.

Prejudicial effect of statement of prosecutor that if jury makes mistake in convicting it can be corrected by other authorities, 3 A.L.R.3d 1448.

Absence of judge from courtroom during trial of civil case, 25 A.L.R.3d 637.

Counsel's reference in criminal case to wealth, poverty, or financial status of defendant or victim as ground for mistrial, new trial, or reversal, 36 A.L.R.3d 839.

Discussion, during jury deliberation, of possible insurance coverage as prejudicial misconduct, 47 A.L.R.3d 1299.

Propriety and prejudicial effect of prosecutor's remarks as to victim's age, family circumstances, or the like, 50 A.L.R.3d 8.

Counsel's appeal in civil case to self-interest or prejudice of jurors as taxpayers, as ground for mistrial, new trial, or reversal, 93 A.L.R.3d 556.

Emotional manifestations by victim or family of victim during criminal trial as ground for reversal, new trial, or mistrial, 31 A.L.R.4th 229.

Prejudicial effect of jury's procurement or use of book during deliberations in civil cases, 31 A.L.R.4th 623.

Prejudicial effect of jury's procurement or use of book during deliberations in criminal cases, 35 A.L.R.4th 626.

Communication between court officials or attendants and jurors in criminal trial as ground for mistrial or reversal - Post-Parker cases, 35 A.L.R.4th 890.

Deafness of juror as ground for impeaching verdict, or securing new trial or reversal on appeal, 38 A.L.R.4th 1170.

Juror's reading of newspaper account of trial in state criminal case during its progress as ground for mistrial, new trial, or reversal, 46 A.L.R.4th 11.

Court reporter's death or disability prior to transcribing notes as grounds for reversal or new trial, 57 A.L.R.4th 1049.

Prosecutor's appeal in criminal case to self-interest or prejudice of jurors as taxpayers as ground for reversal, new trial, or mistrial, 60 A.L.R.4th 1063.

Modern status of sudden emergency doctrine, 10 A.L.R.5th 680.

Prejudicial effect of statement by prosecutor that verdict, recommendation of punishment, or other finding by jury is subject to review or correction by other authorities, 10 A.L.R.5th 700.

Prejudicial effect, in civil case, of communications between court officials or attendants and jurors, 31 A.L.R.5th 572.

Excessiveness or adequacy of damages awarded for injuries causing mental or psychological damage, 52 A.L.R. 5th 1.

Nature and determination of prejudice caused by remarks or acts of state trial judge criticizing, rebuking, or punishing defense counsel in criminal case as requiring new trial or reversal - Individualized determinations, 104 A.L.R.5th 357.