☢ test - Í

S.E.2d 63(a). See also Brown v. State, 167 Ga.App. 61, 63–64(4), 305 S.E.2d 870 (1983) (jury “surely was entitled to know” of conflicts in defendant’s statements).” State v. Sims, 296 Ga. 465, 769 S.E.2d 62 (February 2, 2015). Following felony murder and related convictions, trial court properly granted motion for new trial, based on ineffective assistance of counsel. 1. Prosecutor’s comments in opening statement, highlighting defendant’s failure to call 911 or the police after shooting victim, or tell them he acted in self-defense, “violated the ‘bright-line rule in Georgia’ that ‘the State may not comment on either a Defendant's silence prior to arrest or failure to come forward voluntarily.’ Sanders v. State, 290 Ga. 637(4), 723 S.E.2d 436 (2012).” Based on Mallory v. State, 261 Ga. 625, 409 S.E.2d 839 (1991) (overruled on other grounds, Clark v. State, 271 Ga. 6, 515 S.E.2d 155 (5) (1999)). “The fact that appellee never invoked his right to silence upon being arrested and subject to interrogation does not necessarily vitiate this rule. To the extent Rogers v. State, 290 Ga. 401, 721 S.E.2d 864 (2012); Gilyard v. State, 288 Ga. 800, 708 S.E.2d 329 (2011); Stringer v. State, 285 Ga. 842, 684 S.E.2d 590 (2009); or any other opinion by the appellate courts of this state may be interpreted to hold that Mallory never applies when a defendant has not invoked his right to remain silent, such interpretation is disapproved.” Distinguishing cases that “concern commentary or questioning by the State exploring inconsistencies in a defendant's pre-trial statements to authorities.” 2. “ We note that, while the prosecutor's comments regarding appellee's failure to contact police after shooting the victim and prior to arrest were improper, any commentary or questioning by the State concerning appellee's failure to contact police prior to shooting the victim, is not barred by Mallory and its progeny. Therefore, the prosecutor's comments during his closing argument to the effect that appellee, after the physical altercation with Hancock, twice walked past a phone in his grandmother's house when retrieving the gun used during the shooting and did not use the phone or take any other action to contact police about Hancock or K.M. and her other companions being on his grandmother's property in the middle of the night, were not improper.” 3. “[W]e note that Mallory was decided not on constitutional grounds but rather based on former OCGA § 24–3–36. See Mallory, supra, 261 Ga. at 630, 409 S.E.2d 839. When this case is retried, the new Evidence Code will apply. We express no opinion about the continuing validity of Mallory under the new Evidence Code. See Romer v. State, 293 Ga. 339, 342–343 & n. 4, 745 S.E.2d 637 (2013).” Compare Clark (June 6, 2015), above (in context, prosecutor’s argument wasn’t commentary on defendant’s silence, but “appropriately questioned the veracity of Clark’s testimony.”). Davis v. State, 328 Ga.App. 796, 760 S.E.2d 728 (July 22, 2014). Armed robbery and related convictions affirmed; no improper comment on defendant’s silence when detective testified on direct that “‘[in the year between the crime and the trial,] I've been contacted by nobody providing an alibi of where he was, that he wasn't at this location, or that he was with them. I've been contacted by absolutely nobody.’ Davis's counsel moved for a mistrial, arguing that a statement that ‘nobody’ had provided an alibi implied that Davis himself had failed to come forward during the investigation, claiming to have an alibi. The trial court determined, however, that the jurors likely inferred from the detective's response, taken in context, only that none of the witnesses had given Davis an alibi and that they would not have taken the testimony as a comment on Davis's silence. On this basis, the trial court denied Davis's motion for a mistrial. Having reviewed the record, we discern no abuse of discretion in the trial court's ruling. See Johnson v. State, 271 Ga. 375, 383(15)(a), 519 S.E.2d 221 (1999) (A prosecutor's argument that evidence of guilt has not been contradicted or rebutted is permissible and is not a comment on the defendant's silence.); Bryant v. State, 146 Ga.App. 43, 44(1), 245 S.E.2d 333 (1978) (A prosecutor's argument that ‘no other witness appeared here and told you that it didn't happen—no witness—no evidence’ was not an impermissible and prejudicial comment on the defendant's silence.).” Shaburov v. State, 324 Ga.App. 743, 751 S.E.2d 540 (November 15, 2013). Convictions for attempted murder and related offenses affirmed; no improper comment on defendant’s pre-arrest silence. In both opening statement and questioning of fire investigator, prosecutor pointed out that the investigator left messages for defendant to contact him, but that defendant didn’t respond. Court of Appeals finds this not improper: “[i]n neither instance was there evidence or claim that Shaburov in fact received the message left with a third party for him to contact the police, so as to raise the inference that Shaburov was exercising a ‘right to remain silent’ by not contacting the police. Moreover, the evidence showed that as soon as he was contacted by the police, Shaburov chose to give a lengthy statement, thereby clearly demonstrating that, when, in fact, given the choice, Shaburov did not exercise a ‘right to remain silent.’ In light of these facts, no fair inference can be raised that the prosecutor's complained-of opening comments or the fire investigator's testimony was an improper comment on Shaburov's ‘right to remain silent.’” “[W]e find no deliberate attempt to use Shaburov's failure to respond to Walker's message against him, because it appears that these statements, when considered in context, ‘[were made] during a narrative on the part of the authorities of a course of events and apparently [were] not intended to, nor did [they] have the effect of, being probative on the guilt or innocence of the defendant.’ (Citation omitted.) Hardy v. State, 301 Ga.App. 115, 116(2) (686 S.E.2d 789) (2009). In each instance, the jury immediately was informed that Shaburov, in