☢ test - Í

failed to make a contemporaneous objection to the prosecutor’s comment in opening argument that Glidewell had failed to contact the police. In particular, Glidewell points to his counsels’ failure to object to the prosecutor’s statement that ‘[Glidewell], the estranged husband of the victim ..., never called the Sheriff’s Office, never called the police, wasn’t the least bit worried, because he killed her.’ The general rule is that ‘a comment upon a defendant’s silence or failure to come forward is far more prejudicial than probative.... [S]uch a comment will not be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense. ’ Mallory v. State, 261 Ga. 625, 630(5) (409 S.E.2d 839) (1991). However, ‘ the rule prohibiting comments regarding prearrest silence is properly limited to a defendant’s silence in the face of questions by an agent of the State or his failure to come forward when he knew that he was the target of a criminal investigation .’ (Citations, footnote and emphasis omitted.) Morrison v. State, 251 Ga.App. 161, 164(3) (554 S.E.2d 190) (2001). See also Roebuck v. State, 261 Ga.App. 679, 684(4) (583 S.E.2d 523) (2003). In this instance, the prosecutor was comparing the actions of [victim’s boyfriend] Kempf to Glidewell at the time when the victim became missing, and the prosecutor was not commenting on Glidewell’s silence after he became the target of a police investigation. As an objection would have been meritless, his attorneys were not ineffective for failing to object to the prosecutor’s statement.” Smith v. State, 279 Ga. 48, 610 S.E.2d 26 (February 21, 2005). Prosecutor’s comment that defendant had shown no remorse for his crimes was not a comment on his silence at his murder trial, but rather was based on the evidence. “Both before and after the comment regarding Smith’s lack of remorse, the prosecutor highlighted facts in evidence showing Smith’s cavalier attitude after the crimes. During his arrest, Smith repeatedly laughed, smiled, and bragged about committing his various crimes, including the killing of Mr. Shockey, and proclaimed himself a ‘ natural born killer .’” Accord, Sharp v. State , 286 Ga. 799, 692 S.E.2d 325 (March 22, 2010). Duffy v. State, 271 Ga.App. 668, 610 S.E.2d 620 (February 16, 2005). Prosecutor argued in closing that bullet shells found at the scene matched defendant’s gun, but that defendant’s gun itself was missing, and “that speaks louder than anything else in this case. That screams out the defendant’s guilt.” Defense complains this argument was burden-shifting and commented on his right to remain silent. Held, trial court properly denied mistrial: “‘The State’s comments were not directed at the defendant’s decision not to testify; instead, they were directed at defense counsel’s failure to rebut or explain the State’s evidence. [Cit.]; Ingram v. State, 253 Ga. 622(8), 323 S.E.2d 801 (1984) (while a prosecutor may not comment on a defendant’s failure to testify, he may argue that evidence of guilt has not been contradicted or rebutted).’ Johnson v. State, 271 Ga. 375, 383(15)(a), 519 S.E.2d 221 (1999). Given that the State’s comment in this case was, at most, an implicit challenge to the defense to offer an explanation for the gun’s absence, we find no error. Id.” Lewis v. State, 279 Ga. 69, 608 S.E.2d 602 (February 7, 2005). “During closing arguments, the prosecutor twice improperly referred to [defendant’s] pre-trial silence by asking the jury to consider why he never told investigating officers that he was innocent.” No reversal, however, because trial court sustained objection to argument and instructed jury to disregard the argument. Knolton v. State, 268 Ga.App. 78, 601 S.E.2d 467 (June 24, 2004). Prosecutor’s comment, during closing argument, on defendants’ silence did not demand mistrial. “In this case, a mistrial was not essential to preserve the right to a fair trial. Immediately after the prosecutor’s comment, the trial court gave a thorough curative instruction to the jury and admonished the prosecutor in front of the jury. That remedial instruction was sufficient to prevent the prosecutor’s comment from having any prejudicial impact. Carr v. State, 275 Ga. 185, 186(3) (563 S.E.2d 850) (2002).” Al-Amin v. State, 278 Ga. 74, 597 S.E.2d 332 (May 24, 2004). Malice murder and related convictions affirmed. Prosecutor’s argument violated defendant’s right to silence : “‘I want to leave you with a few questions you should have for the defendant.’ He then displayed a chart which contained a series of seven ‘questions for the defendant.’ In addressing those questions, the prosecutor argued, inter alia, ‘Mr. defendant, how did those murder weapons get there to Whitehall.... How did your Mercedes get to Whitehall.... Did you drive it there?’” Changing his phrasing to “questions for the defense” was not sufficient. “Al-Amin’s constitutional and statutory rights were violated when the prosecutor in effect engaged in a mock cross-examination of the accused who had invoked his right to remain silent.” Harmless error in light of overwhelming evidence of guilt, however. Accord, Ellington v. State , 292 Ga. 109, 735 S.E.2d 736 (November 19, 2012) (“the prosecutor's argument at issue was an impermissible reference to the fact that Ellington ‘didn't’ offer evidence on certain points about which the State had failed to present evidence,” citing Al-Amin ). Pinch v. State, 265 Ga.App. 1, 593 S.E.2d 1 (December 2, 2003). Regarding DUI defendant’s refusal to take breath test, prosecutor argued, “‘it’s possible that he could have gone home that night’” if he had taken the test, and “‘there was a