In State v. Sims, the Georgia Supreme Court affirmed the granting of a new trial to a murder defendant, holding that defense counsel was deficient for failing to object to the prosecutor’s remarks regarding the defendant’s failure to come forward to police after the shooting.
The record showed that several witnesses testified that they saw the defendant fatally shoot the victim after the victim intervened in an argument between the defendant and his former girlfriend. During an interview with an agent of the Georgia Bureau of Investigation, the defendant admitted to shooting the victim. At trial, the prosecutor made several comments regarding the defendant’s failure to come forward after the shooting. The prosecutor noted that the defendant “didn’t call 911 or the police,” either to get help for the victim or “to tell what happened.” Instead, he “tried to avoid responsibility by pretending as if he hadn’t shot anybody and he wasn’t really sure what happened.”
The defendant was convicted of felony murder and a firearm offense. The trial court granted a new trial on grounds that the defendant’s trial counsel was ineffective for failing to object to the prosecutor’s comments. The State then appealed.
The Georgia Supreme Court agreed that trial counsel was ineffective for failing to object to the prosecutor’s repeated remarks regarding the defendant’s failure to come forward to police. The Court noted that the prosecutor’s comments violated a “bright line rule in Georgia” that “the State may not comment on either a Defendant’s silence prior to arrest or failure to come forward voluntarily.” Despite the fact that the comments violated this rule, trial counsel did not object. At the hearing on the defendant’s motion for new trial, counsel testified that his failure to object was an oversight, and was not related to any trial strategy.
The Court found that the defendant was prejudiced by trial counsel’s failure to object. The prosecutor’s comments “encouraged the jury to view [the defendant’s] comments and actions as indications of his guilt.” The Court noted that there was conflicting evidence as to whether the defendant was acting in self-defense. The altercation took place at the defendant’s home, the victim and defendant had a previous altercation, the victim had been asked not to return to the property, and the victim punched the defendant several times before he was shot. In light of that evidence, the Court found that there was a reasonable probability that the prosecutor’s comments prejudiced the defense because it gave the jury the impression that the defendant could be convicted based on evidence that he failed to call the police. This impression “likely tainted the entire trial.”
Therefore, the Court affirmed the reversal of the felony murder and firearm convictions and remanded the case for a new trial.
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