☢ test - Í
in admitting recording of defendant’s statement to police, including his invocation of right to counsel. “Contrary to Martin's arguments otherwise, evidence of a defendant's invocation of the right to counsel is not automatically inadmissible as an improper comment on a defendant's right to remain silent. ‘[A]dmission of the videotape ending with [Martin's] request for an attorney did not amount to an improper comment on his right to remain silent warranting the reversal of his conviction.’ (Footnote and citation omitted.) Rowe v. State, 276 Ga. 800, 805(4) (582 S.E.2d 119) (2003). ‘[T]he videotape merely shows that [Martin] invoked his right to an attorney after giving a lengthy statement to police, and that the interview was then properly terminated. It did not purport to be evidence of [Martin's] guilt nor was it directed to undermining any of his defenses.’ (Citation omitted.) Id. Martin's request for an attorney did not negatively point directly at the substance of Martin's claim of self-defense or otherwise substantially prejudice Martin. See Benham v. State, 259 Ga. 249, 249–50(2) (379 S.E.2d 506) (1989) (‘To reverse a conviction the evidence of the defendant's election to remain silent must point directly at the substance of defendant's defense or otherwise substantially prejudice the defendant in the eyes of the jury’) (citation and punctuation omitted).” Accord, Jackson v. State , A15A2137, 336 Ga.App. 70, ___ S.E.2d ___, 2016 WL 822115 (March 3, 2016). Collins v. State, 289 Ga. 666, 715 S.E.2d 136 (September 12, 2011). Malice murder and related convictions affirmed; trial court erred, but harmless, by allowing prosecutor to cross-examine defendant about his pre-trial silence: “you didn't, between that time period, at no point did you drive to the police station, say here is my car, here is my weapon. That guy was shooting at me. I'm sorry a child died, but it was in self-defense.” “[A]ppellant is correct that the question posed by the prosecutor about appellant's failure to talk to police between the time of the shooting and the time appellant turned himself in to authorities was improper. Lampley v. State, 284 Ga. 37(2)(b), 663 S.E.2d 184 (2008). Unlike the State contends, appellant did not ‘open the door’ to being questioned about his silence before turning himself in and being arrested. Appellant testified that he turned himself in because he saw on the news that the child had been shot. The prosecutor was free to cross-examine appellant on this rationale for turning himself in, i.e. the revelation about the injured child, and appellant's activities prior to turning himself in — i.e., having his car detailed for bullet holes, watching the news story about the shooting, and contacting his lawyer. However, posing a question that inquired of appellant as to why he did not turn himself in two days earlier and as to why he failed to tell the police he acted in self-defense has the effect of suggesting to the fact-finder that if appellant truly acted in self-defense he would have presented himself to police immediately. This is the very type of questioning we ruled to be more prejudicial than probative in Mallory v. State, [261 Ga. 625(5), 409 S.E.2d 839 (1991), overruled on other grounds in Chapel v. State, 270 Ga. 151(4), 510 S.E.2d 802 (1998)].” Harmless, however, in light of overwhelming evidence of guilt. Willis v. State, 309 Ga.App. 414, 710 S.E.2d 616 (April 26, 2011). Armed robbery convictions affirmed; no improper comment on defendant’s pre-trial silence when prosecutor asked defendant on cross-examination: “‘[On July 26, 2002, you knew you were going to be charged with some crimes] and[,] at that time, right after all this happened, you didn't collect information or write down information that would back up this [alibi] story you're telling in court today for the first time?’ In order for remarks to constitute an impermissible comment on the defendant's silence, ‘there must be a finding that the prosecutor's manifest intent was to comment on [the defendant's] failure to testify or that the jury would naturally and necessarily understand the remarks as a comment on [the defendant's] silence.’ (Citation and punctuation omitted.) Rosser v. State, 284 Ga. 335, 337(4)(a) (667 S.E.2d 62) (2008). We conclude that the prosecutor's question in this case did not imply that Willis should have spoken to police officers or other government agents between his arrest and the trial. Cf. Pearson v. State, 277 Ga. 813, 817(5)(c) (596 S.E.2d 582) (2004) (Arguing that, if a person was legally justified in killing someone, he would tell the police his side of the story immediately and not wait until trial to claim self defense constituted an impermissible comment on his right to remain silent.); Boivin v. State, 298 Ga.App. 411, 414–415(3) (680 S.E.2d 415) (2009) (Asking a defendant whether he had shared certain information concerning his defense with law enforcement officers constituted an impermissible comment on his right to remain silent.).” Gilyard v. State, 288 Ga. 800, 708 S.E.2d 329 (March 18, 2011). Malice murder and related convictions affirmed; no improper comment on defendant’s silence when prosecutor cross-examined him. Prosecutor asked defendant why he didn’t tell police on the night of the crimes what he said in court – that he was coerced into helping co-defendant commit the robbery. “[S]ince appellant spoke with police without ever invoking his right to remain silent, the prosecutor's line of questioning did not constitute impermissible commentary on appellant's right to remain silent. Stringer v. State, 285 Ga. 842(4) (684 S.E.2d 590) (2009); Dixon v. State, 303 Ga.App. 517(6)(b) (693 S.E.2d 900) (2010). In fact, appellant himself opened the door to the prosecutor's line of questioning when he testified on direct examination that he lied to police [fn: This case may be distinguished from Mallory v. State, 261 Ga. 625 (409 S.E.2d 839) (1991) where the defendant did not come forward prior to arrest, although he knew he was being investigated. ] because he was scared of Ponder and because he did not want to be charged with the crimes that occurred. Appellant having voluntarily
Made with FlippingBook Ebook Creator