☢ test - Í

Seminal cases: Jenkins v. Anderson , 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982); Mallory v. State , 261 Ga. 625, 409 S.E.2d 839 (1991). See Boykin (October 18, 1999), below New case! Clark v. State, S15A0230, ___ Ga. ___, ___ S.E.2d ___, 2016 WL 3145123 (June 6, 2016). Felony murder and firearms convictions affirmed. No ineffective assistance in failing to object to prosecution closing argument. At trial, for the first time, defendant claimed that he shot victim because victim was trying to rob him. In argument, prosecutor noted that defendant fled the scene rather than explaining this to anyone, including the police. “ As found by the trial court, the prosecutor’s comments, when viewed in their full context, were not comments on Clark’s pre-arrest silence. Instead, the prosecutor emphasized that Clark immediately fled the scene, which Clark, himself, testified to on direct examination. In addition, the prosecutor appropriately questioned the veracity of Clark’s testimony that he was forced to shoot McNeil in self-defense. As the prosecutor’s comments were not objectionable for the reasons Clark now contends, his trial counsel did not render ineffective assistance by failing to make this meritless objection to the comments. See, e.g., Bradley v. State , 292 Ga. 607 (5) (740 S.E.2d 100) (2013).” Compare Sims (February 2, 2015), below. Decided under pre-2013 OCGA § 24-3-36 and Mallory v. State , 261 Ga. 625, 629-30 (409 S.E.2d 839) (1991). “‘We express no opinion about the continuing validity of Mallory under the new Evidence Code,’” quoting State v. Sims, 296 Ga. 465, 471(3), 769 S.E.2d 62 (2015). Matabarahona v. State, 335 Ga.App. 25, 780 S.E.2d 731 (November 20, 2015). Physical precedent only. Conviction for child molestation affirmed; no improper comment on defendant’s pre-arrest silence in prosecutor’s questioning of investigator. Prosecutor elicited testimony that, as part of his investigation, detective “tried on several occasions to contact the Defendant” but was “never able to set up an interview.” The State didn’t pursue the line of questioning further. In context, State was attempting “to convey to the jury that Detective Hicks did try to conduct a fair and even- handed investigation as best he could before moving forward with an arrest warrant against [Matabarahona].” “[T]here was no indication that anyone successfully made contact with Matabarahona, nor was there any inference that Matabarahona was avoiding such contact. The State never suggested that Detective Hicks had any direct communication with Matabarahona prior to his arrest. “‘[T]estimony about the defendant remaining silent is not deemed prejudicial if it is made during a narrative on the part of the authorities of a course of events and apparently was not intended to, nor did it have the effect of, being probative on the guilt or innocence of the defendant.’ (Citation and punctuation omitted.) Whitaker v. State, 283 Ga. 521, 524(3) (661 S.E.2d 557) (2008). … Nothing about the way it was presented indicates that the State intended it to prejudice the jury. Moreover, the challenged testimony was ‘not intended to reflect on [Matabarahona’s] guilt and it was not probative on that issue. Thus, the [testimony] was not so fundamentally unfair as to deny him due process.’ (Citation and punctuation omitted.) Griffin v. State, 331 Ga.App. 550, 553–554(2)(a) (769 S.E.2d 514) (2015).” Martin v. State, 298 Ga. 259, 779 S.E.2d 342 (November 2, 2015). Capital murder and related convictions affirmed; no plain error in prosecutor’s closing argument: “ I watched [you] looking at both parties and the defendant in this case and judging credibility, and I want to thank you for that attention that you paid.” Contrary to defense argument, “the jury would not have perceived this as a comment on Martin’s failure to testify, and it therefore was not improper. See LeMay v. State, 265 Ga. 73, 75(4), 453 S.E.2d 737 (1995) (‘Reversal for improper comment by the prosecutor requires a finding either that 1) the prosecutor’s manifest intention was to comment on the accused’s failure to testify, or 2) the remark was of such a character that a jury would naturally and necessarily take it to be a comment on the accused’s failure to testify.’).” Turner v. State, 334 Ga.App. 515, 778 S.E.2d 257 (October 8, 2015). Child molestation and related convictions affirmed; no ineffective assistance for failure to object to testimony “about Turner’s failure to deny the allegations.” “Turner complains of the state’s examination of his wife, the pastor, and the pastor’s wife. All three witnesses testified about their conversations with Turner and, in response to the prosecutor’s questions, his failure to deny the allegations of child molestation. … The instances about which Turner complains are ‘not squarely governed by the principle ... prohibiting mention of a defendant’s silence or failure to come forward [because Turner] was not silent and did not fail to come forward.’ Carter v. State, 324 Ga.App. 118, 126(2)(b), 749 S.E.2d 404 (2013) (where appellant was not silent and willingly talked, rule did not require the exclusion of testimony about her failure to mention certain facts). Rather, he willingly engaged in conversation with his wife, his pastor, and the pastor’s wife, making certain admissions, answering certain questions, and supplying detail about the molestation. The testimony of these witnesses about Turner’s silence simply highlighted the inconsistencies between what Turner told them and what he failed to say in the same conversations. The testimony was not subject to the bright-line rule. See Rush, 294 Ga. at 390–391(2), 754