Murphy v. State , 270 Ga. 880 ( 1999 )

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515 S.E.2d 148 (1999) 270 Ga. 880
MURPHY
v.
The STATE.
No. S98G1856.
Supreme Court of Georgia.
April 12, 1999.
Valerie Carl Thomason, Thomason & Blackmon, P.C., Carrollton, for Travis Santel Murphy.

Peter J. Skandalakis, Dist. Atty., LaGrange, Kevin Wayne Drummond, Asst. Dist. Atty., Carrollton, for the State.

James C. Bonner, Jr., Georgia Indigent Defense Council, Nicholas A. Lotito, Davis, Zipperman, Kirschenbaum & Lotito, Atlanta, for amici curiae.

HUNSTEIN, Justice.

Travis Santel Murphy was found guilty of voluntary manslaughter in the shooting death of his cousin, Willie Harrison III. He appealed contending, inter alia, that the trial court erred by refusing to give his written request to charge regarding a criminal defendant's election not to testify. The Court of Appeals recognized that the trial court erred by failing to give the timely requested and legally correct charge, but held the failure to be harmless under the facts adduced by the State to support Murphy's conviction. Murphy v. State, 233 Ga.App. 579(1), 504 S.E.2d 484 (1998). We granted certiorari to consider the Court of Appeals' ruling. Because the failure to give the charge was reversible error per se under Clay v. State, 236 Ga. 398, 224 S.E.2d 14 (1976), we reverse.

*149 This Court in Clay v. State, supra, stated that "when a proper charge on [a criminal defendant's election not to testify] is timely requested by the defendant, it is error for the trial judge to fail to give it. This error requires a new trial." Id. at 399, 224 S.E.2d 14. Upon considered review of the constitutional arguments presented by the parties, we conclude that the bright-line ruling in Clay v. State enforces the substantial importance of a criminal defendant's Fifth Amendment privilege and recognizes the impossibility of determining post-trial what adverse inference of guilt the jury may have drawn from the defendant's silence. Accordingly, we reject the harmless error analysis applied by the Court of Appeals. We decline the State's invitation to hold that defense counsel's reservation of the defendant's right to make additional objections to the charge on motion for new trial cannot serve to preserve an objection to a trial court's omission of a requested charge. McCoy v. State, 262 Ga. 699(2), 425 S.E.2d 646 (1993).

Judgment reversed.

All the Justices concur.