James v. State , 230 Ga. App. 615 ( 1998 )

McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of armed robbery. The evidence adduced at trial reveals that defendant entered a Waycross, Georgia convenience store, retrieved some merchandise and then forced the store’s clerk to give him the contents of the cash register. The store’s clerk testified at trial that defendant committed the crime. A video surveillance camera recorded the armed robbery. This recording was displayed to the jury. Defendant filed this appeal after the trial court denied his motion for new trial. Held:

Defendant contends the State improperly injected proof that he exercised his right to remain silent after arrest.

“The Supreme Court of Georgia has held that ‘to reverse a conviction the evidence of the defendant’s election to remain silent must point directly at the substance of defendant’s defense or otherwise substantially prejudice the defendant in the eyes of the jury.’ Smith v. State, 244 Ga. 814, 816 (262 SE2d 116) (1979). The analysis in Smith rests on Doyle v. Ohio, 426 U. S. 610 (96 SC 2240, 49 LE2d 91) (1976). Thus, ‘not every comment directed toward a defendant’s silence will result in an automatic reversal. (Cit.)’ Morris v. State, 167 Ga. App. 351, 352 (1) (306 SE2d 409) (1983).” Newton v. State, 226 Ga. App. 501, 502 (1) (486 SE2d 715). In the case sub judice, defendant claims such prejudice based on the following excerpt from the State’s attorney’s direct examination of Officer Lawrence Ethridge of the Way-cross Police Department: “[STATE’S ATTORNEY:] Okay. Once [defendant] was placed under arrest, did you advise [him] of his rights? A. I did, but [defendant] stated to me he wasn’t the one; he wanted a lawyer. That was the end of the conversation.” This testimony, while injecting the fact that defendant invoked his constitutional rights, does not attack the substance of defendant’s sole defense — misidentification. Defendant, nonetheless, argues that Ethridge’s improper testimony and questions by the State’s attorney (following the trial court’s instruction for Ethridge not to mention that defendant had invoked his right to remain silent) substantially prejudiced him in the eyes of the jury.

After Ethridge’s testimony that defendant stopped talking and invoked his right to an attorney, defense counsel objected and moved for a mistrial. The trial court responded by instructing Ethridge not to mention that defendant had invoked his right to remain silent and by denying defendant’s motion for mistrial. The following then transpired: “[STATE’S ATTORNEY:] Now, Detective Ethridge, you indicated to us before we broke that [defendant] did not wish to speak with you; is that correct? A. Yes, sir. Q. Okay. Was he transported to the jail? A. This was done at the jail, sir. Q. What? A. This was done at the jail, sir. He was transported to the jail, yes, sir. Q. All right. Now, did you initiate any more conversation with [defendant]? A. No, sir. Q. Did he initiate any conversation with you? A. No, sir. Q. Detective Ethridge, I direct your attention to the second page of your supplement, if you would look at that. A. Yes, sir. Go ahead. Q. Now, Detective Ethridge, after referring to your report, let me re-ask the question. Did [defendant] ever talk to you any more about this incident? A. This was done during the conversation. He stated that he stayed at the Almar Hotel that particular night of the robbery. Q. So the Defendant told you he was at the Almar Motel [sic]? A. Yes, sir. Q. Okay. Did he tell you anything else? A. He just couldn’t remember the room, he stated to me. He stated he did go to the hotel and [gave] the key to the clerk.”

While we disapprove of the State’s attorney’s questions which appear to violate the trial court instruction for Ethridge not to mention defendant’s silence after arrest, we find no basis for review because defense counsel did not object when the State’s attorney questioned Ethridge about defendant’s silence. See Newton v. State, 226 Ga. App. 501, 502 (1), supra. Moreover, in light of overwhelming evidence of defendant’s guilt, we find it highly unlikely that injection of any improper evidence regarding defendant’s post-arrest silence substantially prejudiced defendant in the eyes of the jury. See Shelton v. State, 220 Ga. App. 163, 164 (2), 165 (469 SE2d 298).

The trial court did not err in denying defendant’s motion for new trial.

Judgment affirmed.

Beasley and Smith, JJ., concur specially.