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12. CONTENT – DEMONSTRATION See subheading CONTENT – ARGUMENT NOT BASED ON EVIDENCE, above 13. CONTENT – DETERRENCE Rivera v. State, 282 Ga. 355, 647 S.E.2d 70 (June 25, 2007). “Rivera’s contention that the trial court denied him an opportunity to argue in the sentencing phase the effectiveness of the death penalty as a general deterrent is without merit. During his general deterrence argument, Rivera’s counsel rhetorically asked, ‘Can you find a scientist, a sociologist, anybody that’s studied the subject [of the death penalty as a deterrent] and said it’s been effective in any way?’ However, no expert studies that the death penalty is ineffective as a general deterrent were in evidence, see Blige v. State, 263 Ga. 244, 245(2) (430 S.E.2d 761) (1993) (‘It is a basic tenet of trial procedure that counsel cannot argue facts not in evidence. [Cit.]’), as it is well established that the introduction of outside evidence on the deterrent effect of the death penalty by either party is prohibited. McClain v. State, 267 Ga. 378, 386(4)(b) (477 S.E.2d 814) (1996) (citing Fleming v. State, 265 Ga. 541 (458 S.E.2d 638) (1995)).” Compare Tollette (November 7, 2005), below. Tollette v. State, 280 Ga. 100, 621 S.E.2d 742 (November 7, 2005). “[A] prosecutor may argue the deterrent effect of a death sentence, see Pace v. State, 271 Ga. 829, 844(32)(f), 524 S.E.2d 490 (1999).” Compare Rivera (June 25, 2007), above. Accord, Hall v. Brannan , 284 Ga. 716, 670 S.E.2d 87 (November 3, 2008). 14. CONTENT – FAILURE TO CALL WITNESSES/REBUT STATE’S CASE Williams v. State, 285 Ga.App. 190, 645 S.E.2d 676 (April 27, 2007). In defendant’s prosecution for driving on suspended license, no error in allowing prosecutor to ask why defendant didn’t produce the other person he claimed was actually driving. “[A]rguing that the defense has not explained certain evidence does not necessarily shift the burden of proof or the burden of coming forward with evidence to the defendant.” Jefferson v. State, 273 Ga.App. 61, 614 S.E.2d 182 (April 20, 2005). “Jefferson contends that the court erred in overruling his objection to the State’s closing argument. Specifically, Jefferson complains that the State argued that he failed to provide an explanation for his possession of the stolen goods, which constituted a comment on his right not to testify. However, as found by the trial court, all the prosecutor said in his unrecorded argument was that there was no evidence of a reasonable explanation. Such an argument was clearly permissible and did not infringe Jefferson’s constitutional rights. Williams v. State, 245 Ga.App. 259, 263-264(3) (537 S.E.2d 125) (2000)” (emphasis added). Garrett v. State, 271 Ga.App. 646, 610 S.E.2d 595 (February 15, 2005). In closing argument, defense counsel sought to point out that prosecutor failed to call co-defendant, whose separate trial was still pending, as a witness. Held, trial court did not abuse its discretion by prohibiting this argument, because “‘there is nothing in the record that indicates that this [witness] would have waived his Fifth Amendment privilege against self-incrimination and would have testified had he been called to the stand.’ Furthermore, ‘in this instance the witness was as available to [defendant] as to the State, and the defense could have called him to testify.’ (Citation and punctuation omitted.) Thompson v. State, 187 Ga.App. 552, 553(3), 370 S.E.2d 814 (1988).” Brown v. State, 267 Ga.App. 642, 600 S.E.2d 731 (June 2, 2004). “[Defendant] … argues that the prosecutor improperly commented that the defendants were guilty because they did not offer an alibi witness, physical evidence, or scientific evidence to disprove their involvement in the crime. ‘The State may note in closing argument the defense’s failure to present any evidence to rebut the proof adduced by the State. It is reference to the failure of the defendant himself to testify which is prohibited.’ [Cit.] There is no showing that the prosecutor referred to [defendant’s] failure to testify. Thus, no error occurred.” Accord, Culbreath v. State , 328 Ga.App. 153, 761 S.E.2d 557 (July 10, 2014) (not improper to comment on absence of alibi evidence). Pearson v. State, 277 Ga. 813, 596 S.E.2d 582 (May 3, 2004). 1. “ Counsel for the State is allowed to argue that the defendant has not rebutted the evidence of his guilt. [Cit.]. In his trial testimony, Pearson admitted that he fled the scene of the shooting, gave the weapon to his cousin, and that he never surrendered it to the authorities. There is no error ‘in permitting the State’s attorney to comment on the absence of corroborating evidence in closing argument. [Cit.]’ Singleton v. State, 240 Ga.App. 240, 241(6), 522 S.E.2d 734 (1999). See also Scott v. State, 274 Ga. 476, 479(4), 554 S.E.2d 488 (2001); Lee v. State, 265 Ga. 112, 114(4), 454 S.E.2d 761 (1995); Contreras v. State, 242 Ga. 369, 372(3), 249 S.E.2d 56 (1978). Thus, it was permissible for the prosecutor to argue the negative inferences arising from Pearson’s admitted failure to produce the weapon which he claimed that he fired in self-defense. The argument was a valid attack on the credibility of Pearson’s claim that the homicide was justified, not an impermissible comment on his constitutional
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