Shells v. State

Shulman, Chief Judge. This appeal is from appellant’s conviction for driving under the influence of alcohol, leaving the scene of an accident, and failing to have liability insurance. Appellant alleges that the prosecuting attorney, during closing argument, referred to the defendant’s failure to testify. However, the transcript of the trial shows that appellant’s counsel chose not to have the arguments of counsel recorded until after the allegedly prejudicial remark. “This court cannot consider asserted errors which are not supported by the record. [Cits.] There being no transcript of what the remarks were, we cannot consider this enumerated error.” Mahar v. State, 137 Ga. App. 116, 117 (223 SE2d 204). Defense counsel also objected to subsequent remarks of the prosecuting attorney concerning appellant’s failure to produce witnesses to rebut the state’s evidence. Those “remarks were permissible comments on the defense’s failure to adduce evidence in rebuttal to the state’s evidence. [Cits.]” Id. Judgment affirmed. McMurray, P. J., and Birdsong, J., concur.