Russell v. State

• Decision Date: 05 October 1987
• Docket Number: No. 74619,74619
• Citation: 184 Ga.App. 657,362 S.E.2d 392
• Parties: RUSSELL v. The STATE.
• Court: Georgia Court of Appeals

Page 392

362 S.E.2d 392

184 Ga.App. 657

RUSSELL v. The STATE.

No. 74619.

Court of Appeals of Georgia.

Oct. 5, 1987.

Rehearing Denied Oct. 27, 1987.

John T. Chason, Drew R. Dubrin, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Richard E. Hicks, John M. Turner, Jr., Asst. Dist. Attys., Atlanta, for appellee.

BEASLEY, Judge.

Russell, convicted by a jury of armed robbery (OCGA § 16-8-41(a)) and possession of cocaine with intent to distribute (OCGA § 16-13-30(b)), appeals.

1. The victim was robbed by three men of his car, jewelry, and other items on August 31, 1985. Defendant drove the car away. Four months later, on December 26, defendant was seen in the car and arrested while in possession of 28 packages of cocaine.

Defendant did not testify at his trial. During closing argument, the prosecutor stated "He [the victim] told you from the stand that that was the man who robbed him and that he was positive. He [defendant] was caught in the car. What explanation have you heard? None, because there is none...." Defendant objected to this argument as "improper" and requested a mistrial.

Denial of his motion for new trial on this ground is claimed as error, defendant citing OCGA § 17-7-28. That section, however, applies only to one's right not to testify in pretrial hearings. The argument will instead be considered under section 24-9-20, which applies to trials: "... The failure of a defendant to testify shall create no presumption against him, and no comment shall be made because of such failure...."

As pointed out by appellant, in order to reverse for an improper comment the reviewing court must find one of two things: " 'the prosecutor's manifest intention was to comment upon the accused's failure to testify' or that the remark was 'of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.' [Cits.]" Ranger v. State, 249 Ga. 315, 319(3), 290 S.E.2d 63 (1982); Lowe v. State, 253 Ga. 308(1), 319 S.E.2d 834 (1984).

It is not error for a prosecutor to note the defense's failure to present any evidence to rebut the proof adduced by the state. Ayers v. State, 181 Ga.App. 244, 253(5(g)), 351 S.E.2d 692 (1986); Hutchinson v. State, 179 Ga.App. 485, 347 S.E.2d 315 (1986); Smith v. State, 170 Ga.App. 673, 317 S.E.2d 626 (1984). In considering any objected to remark, its context should be considered. Hall v. State, 176 Ga.App. 428(3), 336 S.E.2d 291 (1985).

Here, the prosecutor had reviewed the victim's testimony concerning the theft, his positive identification of the defendant, and the defendant's possession of the car. In asking what explanation of this incriminating evidence the jury had heard, the prosecutor embraced any possible source for an explanation of the identification and of defendant's possession of the car, such as impeachment of the victim, testimony by the defendant's passenger on the night of his arrest, or an alibi offered by others. Also, defendant stated upon arrest, as testified to by an officer, that he was leasing the car and later that he was in the process of buying it. The lender or seller was also a possible source of explanation. The prosecutor by his query did not target defendant. Commenting on the deficiencies in the defense does not always constitute a forbidden comment on the defendant's failure to testify, as a defendant's testimony is not a sine qua non of a defense. In light of the broader context covered by the rhetorical query and self-given response, we do not find that the manifest intention of the prosecutor was to comment on defendant's failure to testify. Ranger v. State, supra 249 Ga. at 319, 290 S.E.2d 63. Nor was the comment such that the jury would naturally and necessarily take it as a comment on defendant's failure to testify. Lowe v. State, supra 253 Ga. at 310, 319 S.E.2d 834.

Considering the nature and context of this portion of the argument, the court did not abuse its discretion in denying the motion for mistrial and the motion for new trial, inasmuch as neither was mandated.

2. Prior to the victim's testimony, the court conducted a jury-absent hearing to make the determination required by Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) and Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), prompted by defendant's motion to suppress identification by the victim.

After receiving evidence and argument, the court found the photo spread proper and denied defendant's motion to exclude in-court identification. The victim then testified to the jury and identified defendant as one of his three robbers. Counsel for defendant requested that he then be allowed to interrupt the state's direct examination of the witness so he could "cross-examine him at this point in time without his ... about his...