☢ test - Í

Scott v. State, 305 Ga.App. 710, 700 S.E.2d 694 (August 27, 2010). In defendant’s prosecution for felony murder and related offenses, prosecutor’s opening statement referencing threats made by defendant’s family members was improper, as there was no evidence linking defendant to the threats; but no abuse of discretion where trial court overruled objection thereto, as defense “never argued that the State would be unable to make such a showing.” “The mere fact that a relationship – familial or otherwise – exists between a criminal defendant and a person who attempt to intimidate a witness, however, is insufficient to ‘link’ the threats to the defendant. Kell v. State, 280 Ga. 669, 672(2)(a) (631 S.E.2d 679) (2006). Rather, as noted above, the prosecution is required to show that the threat was authorized by the defendant, either implicitly or explicitly. Id. at 671(2).” See other cases on this subject under EVIDENCE – WITNESS TAMPERING. Hightower v. State, 287 Ga. 586, 698 S.E.2d 312 (July 14, 2010). Defendants’ convictions for malice murder, aggravated assault, and related offenses affirmed; prosecutor’s opening statement didn’t require reversal: “Hightower contends that during its opening statement, the State referred to matters about which it produced no evidence. However, ‘[a]lthough the prosecution's opening statement may have painted with a broad brush, it was not misleading,’ as evidence was introduced to support the outline of the case presented in the opening statement. Holton v. State, 280 Ga. 843, 847-848(5) (632 S.E.2d 90) (2006). Further, ‘[a]s to any claim that by the subject statements the prosecutor made assertions of fact in the opening statement that could not be established by the evidence, it fails to provide a basis for reversal of [Hightower's] convictions as there was no evidence that the prosecutor acted in bad faith and the trial court instructed the jury that evidence did not include the opening statements by the attorneys. [Cits.]’” Allen v. State, 302 Ga.App. 852, 691 S.E.2d 908 (March 17, 2010). Trial court properly denied plea in bar based on double jeopardy; prosecutor’s improper remark in opening statement at first trial was not an intentional attempt to cause a mistrial. Prosecutor commented that ““the defense may call witnesses to testify on his behalf,” a remark the trial court found to be burden shifting; but trial court also found the remark to be “inadvertent and unintentional.” Mikell v. State, 286 Ga. 722, 690 S.E.2d 858 (March 15, 2010). At defendant’s murder trial, prosecutor’s opening statement wasn’t improper: “ The defendant pinned [the victim] down on the floor of her hotel room, and then he plunged a knife into her chest, arms, neck, once, twice, 3 times, 4 times, 5 times, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 times killing her.” “While obviously placing appellant in a negative light, the State's recount of the anticipated evidence of multiple stab wounds was confined to what the prosecutor expected to prove, and ultimately did prove, at trial.” Zackery v. State, 286 Ga. 399, 688 S.E.2d 354 (January 25, 2010). At defendant’s murder trial, no Bruton violation where prosecutor referenced co-defendant’s custodial statement in opening statement. “In opening statement, the prosecutor said, ‘Roderick Johnson made the statement to the police or a police officer that he felt that Richard Zackery and Ricardel Hightower were involved in the crime….’ First, ‘[a] Bruton violation occurs when a [non-testifying] co- defendant's ... statement inculpating the defendant is considered by the jury as evidence against the defendant, who was not a party to the [statement].’ Watkins v. State, 285 Ga. 107, 111(4) (674 S.E.2d 275) (2009) (Emphasis supplied.); see also McNeal v. State, 196 Ga.App. 244, 246(4) (395 S.E.2d 660) (1990). And … what is said by the attorneys in opening statements is not evidence, and the jury was so instructed in this case. … Thus, the appropriateness of a Bruton challenge in the situation of comments made in the course of the State's opening statement is subject to question. See Polite v. State, 273 Ga.App. 235, 238(3) (614 S.E.2d 849) (2005). However, in treating such a challenge, this Court has determined that ‘[f]or the admission of a co-defendant's statements to constitute a Bruton violation the statements standing alone must clearly inculpate the defendant.’ Metz v. State, 284 Ga. 614, 619(4) (669 S.E.2d 121) (2008). Johnson's statement that he ‘felt’ that Zackery and Hightower were ‘involved’ merely expresses Johnson's speculation, and as such, falls short of clearly inculpating Zackery. Id. at 619(4). See Fetty v. State, 268 Ga. 365, 370(7) (489 S.E.2d 813) (1997).” Daniels v. State, 296 Ga.App. 795, 676 S.E.2d 13 (March 20, 2009). Prosecutor’s reference in opening statement to incident as an armed robbery was improper where defendant wasn’t charged with that offense; but no ineffective assistance for failing to object to the reference where defense counsel and court clearly stated the charges against defendant. Burden v. State, 296 Ga.App. 441, 674 S.E.2d 668 (March 5, 2009). Trial court properly sustained State’s objection to argumentative defense opening statement, asking “shouldn't that [evidence] have been preserved? Shouldn't that have