Marlow v. State , 152 Ga. App. 218 ( 1979 )

Banke, Judge.

The defendant was convicted of driving under the influence, reckless driving, and driving without a license. The state presented ample evidence to support the jury’s guilty verdicts.

The defendant chose not to testify in his own behalf. In a motion hearing, which was transcribed, defendant moved for a mistrial contending the solicitor made the following impermissible comment on the defendant’s failure to testify: "You can get up there, and say that I wasn’t drinking, or that I didn’t have enough, or I wasn’t drunk, but that can’t be said here today.” The quoted language was supplied in the record by defendant’s attorney as argument of counsel was not transcribed. It is clear from the record before us that there is no dispute of substance as to what was said by the solicitor in his argument to the jury —only its interpretation is in issue here. The solicitor concerned himself with arguing the meaning of the words and the propriety of his argument. The. trial court after listening to a tape recording felt that the words were susceptible of two possible interpretations, conceding that the statement could be construed in the way suggested by defendant’s counsel. However, the trial court refused a request to give a curative instruction after denying defendant’s motion for a mistrial.

In a related enumeration of error, defendant complains that the trial court’s charge concerning his election to remain silent was incomplete and misleading. The trial court charged the jury that "as a matter of law... in Georgia one accused and on trial charged with the commission of a crime may testify in his own behalf or not as he pleases.” Held:

1. It is error for the prosecutor to comment to the jury on the defendant’s exercise of his constitutional right to remain silent. Griffin v. California, 380 U. S. 609 (85 SC 1229, 14 LE2d 106); Mitchell v. State, 226 Ga. 450, 455 (2) (175 SE2d 545) (1970). See also Code Ann. § 38-415. It is also error for the court to deny a defendant’s request for a charge that his failure to testify creates no presumption against him. Clay v. State, 236 Ga. 398 (224 SE2d 14) (1976). In comments made following the mistrial motion, the court conceded that the language used by the prosecutor was susceptible of the meaning urged by the defendant. We agree. To hold otherwise would encourage the use of oblique and indirect methods to erode a substantial protected right. The solicitor was simply doing indirectly what he could not do in a direct manner. Thus, we hold that the defendant was at least entitled to a curative instruction upon request.

2. It is permissible for the trial court to "charge that the jury is to 'make no assumption or draw any conclusions from the defendant’s failure to testify.’ ” Also permissible would be a charge "that 'the defendant’s failure to testify creates no presumption against him and the burden of proving the defendant’s guilt beyond a reasonable doubt cannot be presumed to be carried because of the failure of the defendant to testify’...” See Woodard v. State, 234 Ga. 901, 904 (7) (218 SE2d 629) (1975). The following charge had similarly been held permissible:" '[T]he defendant in this case is not obligated under the law to make any statement in his own defense. The law provides that he may or may not make any statement in his own behalf, as he sees fit. The burden of proof being always upon the state to establish the fact of guilt or innocence. There is no presumption against the defendant by reason of his silence. The burden is upon the State to establish his guilt beyond a reasonable doubt.’ ” Stapleton v. State, 235 Ga. 513, 517 (220 SE2d 269) (1975).

Submitted May 3, 1979 — Decided October 12, 1979 — Rehearing denied November 8,1979 — Colquitt P. Brackett, Jr., for appellant. Ken Stula, Solicitor, for appellee.

The charge given by the court in this case concerning the defendant’s right to remain silent was incomplete and ambiguous. Coupled as it was with the impermissible comment of the prosecutor, there is a substantial risk that the jury was given to understand that the defendant could be penalized for exercising his constitutional right to remain silent. The conviction is accordingly reversed and the case remanded for a new trial.

Judgment reversed.

Smith, Shulman, Birdsong, Underwood and Carley, JJ., concur. Deen, C. J., Quillian, P. J., and McMurray, P. J., dissent.