BENHAM, Justice.
Appellant Richard Geiger was sentenced to life imprisonment for his conviction for the felony murder of his live-in girlfriend, predicated upon aggravated assault by stabbing, plus five years to serve consecutively for possession of a knife during the commission of a crime.
1. Viewed in the light most favorable to the verdict, the evidence presented at trial showed appellant lived with his girlfriend, victim Rosie Lee Smith, at her apartment in Liberty County. She was married but had been living apart from her husband, Larry Smith, for many years. On March 6, 2007, Mr. Smith traveled from out of town to visit his wife at her residence. Upon receiving notice that her husband was coming to visit, Mrs. Smith asked appellant to pack his belongings and leave. While appellant was packing, he pulled a concealed knife out of his sleeve and stabbed Mrs. Smith in the chest, and she died at the scene. Mr. Smith was at the apartment when he heard a thump and saw appellant running from the apartment. He found Mrs. Smith sitting on the floor of the hallway closet with a stab wound and not moving. That night, appellant admitted to a friend that he had stabbed Mrs. Smith, and he ran off upon learning she had died. Two days later, law enforcement obtained an arrest warrant for appellant and, based on information he had been seen at his mother's house, they drove to her Bulloch County home. As law enforcement officers were pulling onto the mother's property, they observed appellant crossing a cotton field behind the home and they took him into custody. Appellant waived his rights, made a full confession, admitted he disposed of the knife he used to stab the victim, and told officers of its location. Authorities recovered the knife and submitted it to the GBI for testing. Blood found on the knife matched that of Mrs. Smith. Appellant testified at trial and stated he went to Mrs. Smith's apartment on the day she was killed with a knife concealed in his clothing. He admitted that he stabbed her with the intent to hurt her because he was upset that she was making him leave, but stated he did not intend to kill her. The evidence as described above was sufficient to authorize a rational jury to find appellant guilty beyond a reasonable doubt of felony murder. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The United States Supreme Court has reaffirmed "that no expectation of privacy legitimately attaches to open fields." Oliver v. United States, 466 U.S. 170, 180(III)(A), 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (finding no Fourth Amendment violation when law enforcement officers, acting on a tip, arrived at petitioner's farm, drove past the house to a locked gate with a "no trespassing" sign, walked around the gate to a footpath, and ultimately found a field of marijuana in a highly secluded field on the property). That this open field was behind the house and near a shed at the rear of the
3. On cross-examination, the prosecutor directed appellant's attention to the custodial statement he made to the arresting officers, which had been played to the jury, that "he could never harm anybody." The prosecutor then asked appellant whether it was true, however, that the day before Mrs. Smith's death he had pulled a knife on a man that was her ex-boyfriend. The state had not laid a proper foundation for presenting similar transaction evidence, and appellant's attorney objected and moved for mistrial on the ground that reference to this alleged incident improperly placed appellant's character into evidence. During a conference outside the presence of the jury, the trial court instructed the prosecutor to stay away from this evidence but denied the motion for mistrial. The trial court then instructed the jury to disregard the previous comment by the prosecutor and ordered it to be stricken. The prosecutor then commenced questioning appellant about whether his previous girlfriend had also asked him to leave and asked whether his leaving was related to "something about her stabbing you with a screwdriver?" Again, appellant's counsel objected and requested a mistrial. Outside the hearing of the jury, the trial court strongly rebuked the prosecutor and instructed him to stay away from that kind of evidence, but denied the motion for mistrial. Appellant's counsel renewed the motion for mistrial which again was denied, but, alternatively, counsel asked for curative instructions. When the jury returned, no curative instructions were given. Although appellant's enumeration of error asserts the trial court erred by failing to grant a mistrial for prosecutorial misconduct, he does not argue entitlement to a mistrial in his brief, but argues the trial court's failure to give curative instructions and to rebuke counsel in the presence of the jury created reversible error.
With respect to the first prosecutorial statement to which appellant raised an objection, we agree that the record demonstrates the prosecutor violated OCGA § 17-8-75 by making "statements of prejudicial matters which [were] not in evidence...." For the purpose of this analysis we will assume, without deciding, that the second prosecutorial statement to which appellant raised an objection, which referenced that the appellant, himself, was a victim of an assault, was also an improper prejudicial statement by the prosecutor. Accordingly, it was "the duty of the court to interpose and prevent the same." Id. Further, "[o]n objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender." Id. Once a defendant's counsel has raised an objection, OCGA § 17-8-75 imposes a duty upon the trial court "to rebuke the prosecutor, give an appropriate curative instruction, or grant mistrial in the event that the prosecutor has injected into the case prejudicial statements on matters outside of the evidence." O'Neal v. State, 288 Ga. 219, 221(1), 702 S.E.2d 288 (2010). Contrary to the state's argument, once an objection has been
In this case, however, the trial court's error in failing to remedy the impact of the prejudicial statements by the prosecutor, if any, was harmless. Given the overwhelming evidence of appellant's guilt, including his custodial confession, we find it is highly probable that the trial court's error, if any, did not contribute to the verdict. See O'Neal, 288 Ga. at 222(2), 702 S.E.2d 288 (applying a harmless error analysis to the issue of the trial court's failure to comply with the duty imposed by OCGA § 17-9-75.) Consequently, we find no reversible error.
Judgment affirmed and sentence vacated in part.
All the Justices concur.