☢ test - Í

K. OPENING STATEMENT See also related sub-headings under subheading CLOSING ARGUMENT, above Crayton v. State, S15A1506, ___ Ga. ___, 784 S.E.2d 343, 2016 WL 856238 (March 7, 2016). Felony murder and related convictions affirmed; any objection to opening statement by prosecutor was waived by failure to object. “[T]here is no authority for the application of plain error review to comments made by lawyers during opening statements. Rather, we apply plain error review to the trial court’s jury instructions (see OCGA § 17–8–58(b)) and to the trial court’s rulings on evidence. See OCGA § 24–1–103(d). Opening statements are neither instructions by the trial court nor evidence.” Citing See Phillips v. State, 285 Ga. 213(3), 675 S.E.2d 1 (2009). Pinkney v. State, 332 Ga.App. 727, 774 S.E.2d 770 (July 2, 2015). Physical precedent only on this point. Convictions for attempted armed robbery and related offenses affirmed. Defense counsel’s misstatement of evidence in opening statement didn’t require mistrial where it was corrected by the evidence, “and the trial court instructed the jury that counsels' opening and closing arguments were not evidence. Cf. Williams v. State, 292 Ga. 844, 848–849(3)(b), 742 S.E.2d 445 (2013) (trial counsel's misstatement to the jury regarding time of 911 call was not ineffective assistance because the misstatement was corrected by a detective's testimony and the trial court charged the jury that counsels' arguments were not evidence).” Nguyen v. State, 330 Ga.App. 812, 769 S.E.2d 558 (March 2, 2015). DUI conviction affirmed; prosecutor was entitled to reference similar transaction evidence in opening statement. “[Defendant] has not provided any authority for his contention that a prosecutor may not refer in opening statement to similar transaction evidence which has already been ruled admissible. A prosecuting attorney in an opening statement may state what he expects in good faith the evidence will show during trial of the case. Burroughs v. State, 186 Ga.App. 40, 43(6), 366 S.E.2d 378 (1988).” Moses v. State, 328 Ga.App. 625, 760 S.E.2d 217 (July 15, 2014). Aggravated assault conviction affirmed; disapproves State’s opening statement impugning defense counsel, but declines to find ineffective assistance in failing to object thereto. “Moses argues that his trial counsel should have objected when, during the state's opening statement, a prosecutor stated that Moses and his co-defendant ‘did their best to cover up [their crime] in more than one way. One way was very sophisticated. And they hired lawyers, which they're entitled to do under our Constitution[.]’ While we agree with Moses that these disparaging comments against counsel were not appropriate , see generally Geoffrion v. State, 224 Ga.App. 775, 780(8)(c), 482 S.E.2d 450 (1997), overruled in part on other grounds by Mullins v. State, 270 Ga. 450, 451(2), 511 S.E.2d 165 (1999), we are not persuaded with his argument that the prosecutor's opening statement so impugned his counsel's role in the judicial process that his counsel's failure to object to it constituted ineffective assistance of counsel.” Lewis v. State, 293 Ga. 110, 744 S.E.2d 21 (June 3, 2013). Murder and related convictions affirmed; no mistrial required where prosecutor showed jury photographs during opening statement; the photos were later admitted into evidence. “It appears that the only problem Clark has with the two photographs was the timing of their presentation to the jury and not their substance as they were eventually admitted into evidence without objection. The trial court remedied the timing issue immediately when it precluded the prosecutor from using any other photographs during his opening statement. At the close of evidence, the trial court also instructed the jury that opening statements were not evidence. The trial court's actions preserved Clark's right to a fair trial and the trial court did not abuse its discretion when it did not declare a mistrial sua sponte.” Jennings v. State, 288 Ga. 120, 702 S.E.2d 151 (November 1, 2010). Convictions for malice murder and concealing a death affirmed; prosecutor’s’ opening statement wasn’t improper, though evidence didn’t ultimately support it, because made in good faith. “While it is true that ‘a prosecutor's opening statement must be confined to what he or she expects the evidence to prove at trial ... a conviction will not be reversed if the opening statement was made in good faith, and the trial court instructs the jury that opening statements are not to be considered as evidence during deliberations.’ (Footnotes omitted.) Hartry v. State, 270 Ga. 596, 598(2) (512 S.E.2d 251) (1999). … [A]lthough the prosecutor wanted to show the jury that Jennings had been seen with a gun at his apartment, it only became clear to the prosecutor that he may not have been able to do this after he had already given his opening statement.” Accord, Simmons v. State , 291 Ga. 705, 733 S.E.2d 280 (October 15, 2012) (defendant’s question to family members, “who would be a good lawyer if I killed somebody?” mentioned by prosecutor in opening, later excluded by trial court, no grounds for mistrial).