Fallen v. State

Deen, Presiding Judge. Appellant Fallen was convicted of armed robbery and criminal attempt to commit armed robbery. At trial defense counsel elicited from his client the statement that he was never asked by law enforcement officers to make a written statement. On cross-examination the prosecutor, in an attempt to place the previous statement in context, elicited, through a series of questions, the statement that defendant/ appellant had not been asked to make a written statement because, on being given his Miranda warnings, he had elected to exercise his right to remain silent. Defense counsel moved for mistrial on the ground that this sequence of questions and answers constituted prejudicial reference to the exercise of the right to remain silent. The motion was denied, and appellant enumerates this denial as error. Held: Our examination of the entire record of the instant case, together with the trial transcript, reveals that the prosecuting attorney was well within his rights in following up as he did on the prior statement, of appellant made on direct examination, and that none of appellant’s rights was infringed thereby. Williams v. State, 165 Ga. App. 72 (299 SE2d 405) (1983); Abbott v. State, 162 Ga. App. 396 (291 SE2d 447) (1982). The trial transcript further reveals that defendant/appellant was positively identified by both of his victims and that there was ample evidence to authorize the rational trier of fact to find appellant guilty as charged beyond a reasonable doubt even if, contrary to our conclusions after review of the proceedings, the prosecutor’s conduct had been improper. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We find appellant’s enumeration without merit. Judgment affirmed. Birdsong and Benham, JJ., concur.