☢ test - Í

Walker v. State, 268 Ga.App. 669, 602 S.E.2d 351 (July 22, 2004). During jury selection, defendant wore a sport coat over his jail clothing; a file cabinet hid from view his leg shackles. As trial commenced the next day, defendant wore street clothes. “[P]retermitting whether trial counsel was deficient by not making a timely objection to Walker’s appearance during voir dire, we cannot say that there is a reasonable chance that the outcome of the trial would have been different had counsel made a timely objection. We cannot presume the jury was unfairly tainted by Walker’s clothing.” Accord, Stevenson v. State , 272 Ga.App. 335, 612 S.E.2d 521 (March 21, 2005). Fulton v. State, 278 Ga. 58, 597 S.E.2d 396 (June 7, 2004). “‘It is manifestly improper for a prosecutor to argue to the jury during the guilt-innocence phase of any criminal trial that if found not guilty, a defendant poses a threat of future dangerousness.’ Wyatt v. State, 267 Ga. 860(2b), 485 S.E.2d 470 (1997). A defendant’s probable future behavior is not relevant where the jury, as here, decides only the defendant’s guilt or innocence. Mason v. State, below, 274 Ga. 79(2c), 548 S.E.2d 298. A prosecutor argues future dangerousness when the prosecutor asserts there will be more victims if the defendant is not found guilty [cits.] or the community or witnesses will be endangered if the defendant is not found guilty. [Cits.] The prosecuting attorney’s assertion in the case at bar that [defendant] was a ‘menace to our society’ and a ‘cancer in the community’ that needed to be excised ‘to protect the community’ and, ostensibly, the jurors since there were “no walls around [defendant’s neighborhood] that would prevent something like this from happening in your communities” is an argument to the jury that the defendant poses a threat of future dangerousness if not found guilty. Trial counsel’s failure to object to the improper argument constitutes deficient performance ; ‘[h]owever, the deficient performance does not constitute ineffective assistance of counsel since [defendant] did not establish that the failure to object was so prejudicial to his defense that, but for the deficiency, there was a reasonable probability that the outcome of the trial would have been different.’ [Cit.]” Pearson v. State, 277 Ga. 813, 596 S.E.2d 582 (May 3, 2004). 1. “During closing argument, defense counsel did not object when the State’s attorney commented on Pearson’s dangerousness and stated that ‘[i]f he is not stopped, someone else will be next.’ Pearson correctly asserts that the failure to object to this statement constitutes deficient performance . Mason v. State, 274 Ga. 79, 80(2)(c), 548 S.E.2d 298 (2001). However, there was no dispute that he intentionally shot [victim], and the question for the jury was simply whether his act constituted malice murder or justifiable homicide. Considering the overwhelming evidence that the victim did not constitute an imminent threat to Pearson or anyone else at the time that he was ambushed and shot six times, there clearly is no reasonable probability that the failure to object to this portion of the closing argument had any effect on the verdict,” Id. at 81. 2. “During the State’s closing argument, the prosecuting attorney questioned whether someone who acted in self-defense would run away, and she continued with the following: ‘If you’ve got a good story, if you’ve got a good reason for doing something, what do you want to do? You want the police to know your side of the story. You want the police to know you were defending yourself. You are going to be right there.... You are not going to wait until you come into a courtroom and start talking about self-defense. You are going [to] talk about it on the day that it happens.’ … The State may offer evidence of the defendant’s flight from the scene, and argue that it is circumstantial evidence of his guilt. Renner v. State, 260 Ga. 515, 517-518(3)(b), 397 S.E.2d 683 (1990). However, a prosecutor may not comment on an accused’s pre-arrest silence or failure to come forward voluntarily, even if he chooses to testify at trial. Landers v. State, 270 Ga. 189, 190(2), 508 S.E.2d 637 (1998). Thus, even though Pearson testified in his own defense, the assistant district attorney should not have included in her argument a reference to his pre-trial failure to raise the defense of justification. See Mallory v. State, 261 Ga. 625, 629(5), 409 S.E.2d 839 (1991).” Again, however, no reversal due to overwhelming evidence of guilt. Joncamlae v. State, 267 Ga.App. 214, 598 S.E.2d 923 (April 30, 2004). Defendant received ineffective assistance of counsel when she failed to object to in-court identification of defendant by victims who based that identification on a photograph from State’s file, sent the day before testifying, which was not properly disclosed in discovery. Distinguished from James v. State , 233 Ga.App. 516, 504 S.E.2d 533 (1998), where witness was trained investigator whose identification of defendant was not dependent upon photograph he saw in State’s file. Collier v. State, 266 Ga.App. 345, 596 S.E.2d 795 (March 18, 2004). “Pervasive” themes of prosecutor’s closing argument – that jury should convict and punish defendant because his prior sentences on similar offenses were inadequate, and that defendant posed a future danger – “distorted the jury’s role” and “ran afoul of fundamental fairness” and should have resulted in mistrial. Defendant received ineffective assistance of counsel where counsel failed to object to these arguments. “Pretermitting the issue of whether the evidence of Collier’s guilt can be considered overwhelming, we find a reasonable probability that, but for defense counsel’s utterly deficient performance in this regard, the outcome of the trial would have been different – not because the jury would have reached a different verdict, but because the case would never have been submitted to it for deliberation if defense counsel had moved for a mistrial.” The “prejudice prong of