Gosha v. State , 239 Ga. 37 ( 1977 )

239 Ga. 37 (1977) 235 S.E.2d 527

GOSHA
v.
THE STATE.

32143.

Supreme Court of Georgia.

Submitted April 1, 1977. Decided May 13, 1977.

William Cain, Sr., for appellant.

E. Mullins Whisnant, District Attorney, William J. Smith, Assistant District Attorney, Arthur K. Bolton, Attorney General, G. Stephen Parker, Assistant Attorney General, for appellee.

HILL, Justice.

The defendant was convicted of rape. On appeal he enumerates one error, that the trial court erred in overruling his objection to the prosecutor's comments in closing argument upon the defendant's failure to testify in surrebuttal.

The state presented evidence against the defendant, including the testimony of the victim. The defendant took the stand and testified as to an alibi defense. The state called two additional witnesses who testified to seeing the defendant at the scene of the crime.

In closing argument, the district attorney commented upon the defendant's failure to retake the stand and deny the testimony of the state's rebuttal witnesses. The defendant objected to the district attorney's commenting upon the defendant's failure to testify. The trial court overruled the objection.

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." Griffin v. California, 380 U.S. 609, 614 (85 SC 1229, 14 LE2d 106) (1964).

However, where the defendant testifies in his own behalf, Griffin v. California is inapplicable and there is no violation of the Fifth Amendment when the district attorney comments upon the defendant's failure, when he testified, to explain or deny the testimony of particular witnesses. See Coleman v. State, 15 Ga. App. 338 (2) (83 S.E. 154) (1914); Nolen v. State, 124 Ga. App. 593, 597 (184 SE2d 674) (1971).

The statutory prohibitions upon comment on the defendant's failure to testify (Code Ann. §§ 27-405, 38-415, as amended), are applicable only where the defendant fails to testify. The defendant did not fail to testify in this case and the trial court did not err in overruling the defendant's objection.

Judgment affirmed. All the Justices concur.