☢ test - Í

S.E.2d 237 (1982), the Court held that a police officer’s testimony that the defendant answered certain questions asked of him by the police during a post-arrest interview, but gave no response to other critical questions, violated the rule set forth in Doyle. ” Crenshaw v. State, 272 Ga.App. 350, 612 S.E.2d 539 (March 21, 2005). Officer’s references to defendant’s silence were improper, but harmless, especially since court gave curative instruction to disregard on one occasion: officer said that defendant was put in police vehicle for transport when “he refused to talk;” officer testified that defendant refused to get out of police car, and that “he just kept saying… he wanted to see his lawyer or talk to his lawyers;” officer read from her report that defendant “clearly stated that he would not say another word to this officer… [w]hich he – he had stopped talking to me, anyway.” Jackson v. State, 271 Ga.App. 317, 609 S.E.2d 643 (December 9, 2004). Defendant testified at his first trial, which ended in mistrial. He elected not to testify at his second trial, whereupon the State offered his testimony from his first trial into evidence. Held, “‘our law clearly authorizes reading such testimony.’ Spruell v. State, 237 Ga.App. 448, 453(6) (514 S.E.2d 896) (1999).” Lemons v. State, 270 Ga.App. 743, 608 S.E.2d 15 (November 10, 2004). No mistrial where detective’s testimony about his interview of defendant ended where defendant “requested an attorney.” “‘[I]n order to warrant reversal of a conviction, the evidence of defendant’s choice to remain silent must point directly at the substance of defendant’s defense or otherwise substantially prejudice defendant in the eyes of the jury.’ (Citation omitted.) Mitchell v. State, 223 Ga.App. 319, 321(6), 477 S.E.2d 612 (1996). As a result, ‘not every comment directed toward a defendant’s silence will result in an automatic reversal.’ (Citation and punctuation omitted.) Newton v. State, 226 Ga.App. 501, 502(1), 486 S.E.2d 715 (1997).” Henry v. State, 278 Ga. 554, 604 S.E.2d 469 (October 25, 2004). State’s cross-examination of defendant, commenting that defendant “chose to keep silent and failed to come forward voluntarily to the authorities about his involvement in the incident” was improper, but harmless in light of overwhelming evidence of guilt. Moore v. State, 278 Ga. 397, 603 S.E.2d 228 (September 27, 2004). Questions designed to show that defendant, “although he was well-acquainted with [victim’s] family, failed to make a statement of condolence to the family, to assist in raising funds, or to attend [victim’s] funeral, … did not bear in any way on Moore’s pre-arrest silence, but on the fact he left town immediately after the killing and was not present to interact with [victim’s] family. A defendant’s flight is a proper subject for questioning and for argument. Renner v. State, 260 Ga. 515(3b) (397 S.E.2d 683) (1990).” By contrast, evidence “that the police gave Moore an opportunity during interrogation to explain where he was on the occasion of the shooting and why he had not come forward when he knew the police were seeking him” was improper comment on defendant’s pre-trial silence. “The State argues the questions regarding Moore’s pre-arrest silence were not improper because they were intended to elicit testimony explaining interrogation techniques used to question Moore. The State does not explain, however, and we do not perceive the relevance of the topic of interrogation methods to the issue of Moore’s guilt or innocence.” Bruce v. State, 268 Ga.App. 677, 603 S.E.2d 33 (July 9, 2004). “The detective testified in response to the state’s questioning that, within a two-month span, he had gone to Bruce’s house about ten or fifteen times and telephoned Bruce and left messages on an answering machine many times. When the detective resumed his investigation of this case in April, he spoke to Bruce several times by telephone and an interview had been scheduled. But Bruce did not appear. This testimony was an improper comment on Bruce’s silence or failure to come forward,” but harmless error inasmuch as it was also elicited on cross by defense counsel and was consistent with the defense strategy of showing a poor investigation by the detective. Pearson v. State, 277 Ga. 813, 596 S.E.2d 582 (May 3, 2004). 1. “ Counsel for the State is allowed to argue that the defendant has not rebutted the evidence of his guilt. [Cit.]. In his trial testimony, Pearson admitted that he fled the scene of the shooting, gave the weapon to his cousin, and that he never surrendered it to the authorities. There is no error ‘in permitting the State’s attorney to comment on the absence of corroborating evidence in closing argument. [Cit.]’ Singleton v. State, 240 Ga.App. 240, 241(6), 522 S.E.2d 734 (1999). See also Scott v. State, 274 Ga. 476, 479(4), 554 S.E.2d 488 (2001); Lee v. State, 265 Ga. 112, 114(4), 454 S.E.2d 761 (1995); Contreras v. State, 242 Ga. 369, 372(3), 249 S.E.2d 56 (1978). Thus, it was permissible for the prosecutor to argue the negative inferences arising from Pearson’s admitted failure to produce the weapon which he claimed that he fired in self-defense. The argument was a valid attack on

Made with FlippingBook Ebook Creator