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Lawskills.com Georgia Caselaw
BURGESS v. THE STATE.
61887.
DEEN, Presiding Judge.
Armed robbery. Clarke Superior Court. Before Judge Gaines.
Appellant's sole enumeration of error in his appeal from his conviction of armed robbery is that the trial court erred in failing to grant his motion for a mistrial after the prosecutor commented on his exercise of his right to remain silent. Held:
During closing argument, the prosecutor stated: "Well, there is uncontradicted evidence in this case that Tom Burgess had the gun, that Tom Burgess . . ."
While considerable latitude is permitted in arguments to the jury, the prosecutor is prohibited from commenting upon the defendant's failure to testify. Griffin v. California, 380 U. S. 609 (85 SC 1229, 14 LE2d 106) (1965); Mitchell v. State, 226 Ga. 450 (175 SE2d 545) (1970). In Delvers v. State, 139 Ga. App. 119, 121 (227 SE2d 844) (1976), however, it is recognized that the prosecutor has the right to "comment upon facts in evidence and draw deductions therefrom in such a manner as to present the case in the light most favorable to his case." In ruling upon the prosecutor's comments which were directed at the failure of the defense to present any evidence to rebut proof presented by the state, the court in Delvers, supra, at 122, further held that where the state has introduced evidence to suggest that the defendant is guilty, ". . . the state's counsel has the right to suggest this proof has not been rebutted. [Cit.] Since the district attorney's comments made no direct reference to the failure of the defendant to testify, he was not prohibited from making these comments concerning the evidence in the case . . ." As the prosecutor's right to draw deductions has recently been affirmed in Hoerner v. State, 246 Ga. 374 (271 SE2d 458) (1980), and Smith v. State, 245 Ga. 205 (264 SE2d 15) (1980), we find this enumeration to be without merit.
Harry N. Gordon, District Attorney, B. Thomas Cook, Jr., Assistant District Attorney, for appellee.
C. P. Brackett, Jr., for appellant.
DECIDED MAY 20, 1981.
Thursday May 21 22:37 EDT


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