Smith v. State

Birdsong, Judge.

Smith appeals his conviction, by a jury, of aggravated sodomy. He enumerates as error the trial court’s refusal to grant a mistrial after the following remarks were made during closing argument:

"Prosecutor. 'Objection, Your Honor, that is clearly improper [for defense counsel] to argue punishment at this stage of the proceeding.’ The Court. 'All right, don’t argue punishment.’ Prosecutor. 'The court may put him on probation or something.’ ”

The trial court thereafter instructed the prosecutor not to argue punishment and explicitly cautioned the jury not to consider either…