☢ test - Í

Jackson v. State, 282 Ga. 494, 651 S.E.2d 702 (October 9, 2007). “[T]he prosecutor did improperly comment on Jackson’s silence by questioning him regarding why he did not come forward after the incident and report that he had acted in self-defense. Landers v. State, 270 Ga. 189, 190-191, 508 S.E.2d 637 (1998); Barnes v. State, 269 Ga. 345, 352, 496 S.E.2d 674 (1998).” No prejudice from trial counsel’s failure to object however, given overwhelming evidence of guilt. Three justices dissent, would find ineffective assistance based on failure to object to ‘flagrant and repeated prosecutorial misconduct,” numerous questions and closing argument on this topic. Accord, Johnson v. State , 293 Ga.App. 728, 667 S.E.2d 637 (August 28, 2008) (defendant’s conviction for aggravated assault and kidnapping reversed; defendant received ineffective assistance when counsel failed to object to prosecutor’s questions highlighting defendant’s failure to contact the authorities when he “knew the police were looking for him.” Evidence of guilt was not overwhelming.). Wright v. State, 287 Ga.App. 593, 651 S.E.2d 852 (September 18, 2007). Conviction reversed based on improper comment where trial court questioned arresting officer about defendant’s refusal to make a statement after arrest in a series of questions ending with: “He didn’t want to talk to you, is that what you’re saying?” “It is ‘fundamentally unfair to simultaneously afford a suspect a constitutional right to silence following arrest and yet allow the implications of that silence to be used against him for either substantive or impeachment purposes.’ Gibbs v. State, 217 Ga.App. 614, 615 (458 S.E.2d 407) (1995).” Tennyson v. State, 282 Ga. 92, 646 S.E.2d 219 (June 4, 2007). After officer testified about a voluntary, spontaneous comment made by defendant after his arrest, defense counsel elicited from officer that the defendant had declined to give police a formal statement. “In the ensuing redirect examination, counsel for the State prefaced a question to the officer with the following: ‘And when Mr. Tennyson said he didn’t want to be interviewed....’” Defense counsel interrupted, and the prosecutor did not return to the subject. Held, no mistrial was required: “[T]he applicable standard is that, if a comment ‘concerning remaining silent 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” it is not prejudicial. [Cit.] In fact, “(t)o reverse a conviction, the evidence of the defendant’s election to remain silent must point directly at the substance of the defendant’s defense or otherwise substantially prejudice the defendant in the eyes of the jury.” [Cit.]’ Taylor v. State, 272 Ga. 559, 561(2)(d) (532 S.E.2d 395) (2000). Here, the jury was already aware from the officer’s response during cross-examination that Tennyson had declined to make a statement. The prosecutor’s subsequent passing reference to that circumstance when questioning the officer on redirect can, therefore, be characterized as a ‘narrative recitation of the events surrounding [Tennyson’s arrest by] the authorities, and it appears that it was not intended to reflect on his guilt and it was not probative on that issue. [Cit.] Thus, the remark was not so fundamentally unfair as to deny him due process. [Cit.]’ Wright v. State, 276 Ga. 419, 420(3) (577 S.E.2d 782) (2003).” Accord, Mora v. State , 292 Ga.App. 860, 666 S.E.2d 412 (July 9, 2008); Berryhill v. State , 285 Ga. 198, 674 S.E.2d 920 (March 27, 2009) (Evidence that defendant refused to answer questions during interview, after hyperventilating, harmless, citing Tennyson ); Franks v. State , 301 Ga.App. 590, 688 S.E.2d 382 (December 11, 2009) (officer started to make reference to defendant’s silence, but was interrupted by prosecutor); Moore v. State , 319 Ga.App. 766, 738 S.E.2d 348 (February 14, 2013) (curative instruction was sufficient where officer testified that defendant “didn’t want to answer any questions” when he responded to call about alleged child cruelty). Eason v. State, 283 Ga.App. 574, 642 S.E.2d 207 (February 13, 2007). Prosecutor’s brief reference to defendant’s silence did not mandate mistrial. Defense counsel, on cross, tried to ask police officer about self-serving statements made by defendant prior to arrest. Prosecutor objected, essentially arguing that admission of the statements would be improper unless defendant took the stand. “‘ As a rule of both constitutional law and Georgia statutory law, a prosecutor may not make any comment upon a defendant’s failure to testify at trial. Generally, comments by the State regarding the defendant’s decision not to testify may constitute reversible error if (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. (Citations, punctuation, and footnote omitted) Smith v. State, 279 Ga. 48, 49(2) (610 S.E.2d 26) (2005). See OCGA § 24-9-20(b).” “In this context, the prosecutor’s manifest intent was to exclude Eason’s statements rather than to comment on Eason’s possible failure to testify. The prosecutor’s argument, which was directed to the trial court, was not such as would ‘naturally and necessarily’ be taken by the jury as a comment on Eason’s failure to testify. [Cit.]” Maynard v. State, 282 Ga.App. 598, 639 S.E.2d 389 (November 29, 2006). Defendant/police officer’s conviction for aggravated child molestation reversed; “the trial court erred by allowing the State to question a law enforcement