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JONES v. THE STATE.
75660.
CARLEY, Judge.
Robbery by intimidation. Tift Superior Court. Before Judge Forehand.
Appellant was tried before a jury and found guilty of three counts of robbery by intimidation. He appeals from the judgments of conviction and sentences entered on the jury's verdicts.
Appellant's sole enumeration of error is based upon the following remark, which was made during the State's closing argument: "But don't you imagine that if there were somebody to account for where [appellant] was when these robberies took place that they would be here?" Appellant moved for a mistrial, on the ground that this remark was an impermissible comment on his constitutional and statutory right not to testify in his own defense. The denial of appellant's motion for mistrial is enumerated as error.
" 'The self-incrimination clause of the Fifth Amendment forbids comment by the prosecution on the defendant's silence. Comment by the prosecutor "cuts down on the privilege [against self-incrimination] by making its assertion costly." [Cit.]' [Cit.] However, ' "(I)t is not error for the prosecutor to reflect upon the failure of the defense to present any evidence to rebut the proof adduced by the [S]tate. [Cit.]" ' [Cit.] '[W]hat is prohibited is a comment that the defendant could have "denied," "explained," or otherwise "disputed" the state's case against him. [Cits.]' [Cit.] [A statement] such as [that] made by the [prosecuting] attorney in the case at bar [does] not constitute reversible error. [Cit.]" Smith v. State, 170 Ga. App. 673, 674 (317 SE2d 626) (1984). See also Hutchinson v. State, 179 Ga. App. 485, 486 (2) (347 SE2d 315) (1986); Hufstetler v. State, 171 Ga. App. 106, 110 (13) (319 SE2d 869) (1984); Brown v. State, 157 Ga. App. 473, 475 (4) (278 SE2d 31) (1981). Appellant's enumeration is without merit.
David E. Perry, District Attorney, for appellee.
DECIDED FEBRUARY 18, 1988.
Thursday May 21 13:10 EDT


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