Following a jury trial, Thomas A. Scott was found guilty of voluntary manslaughter,1 felony murder,2 aggravated assault,3 possession of a firearm during the commission of a crime,4 and possession of cocaine.5 The trial court merged the aggravated assault and felony murder charges with the voluntary manslaughter charge, and convicted Scott on that and on the remaining charges. Scott now appeals from the denial of his motion for a new trial, asserting that the trial court erred in allowing argument and evidence as to the conduct of third-parties, who allegedly attempted to intimidate two eyewitnesses to prevent them from testifying truthfully at trial. Scott further claims that his trial counsel was ineffective for failing to object to: 1 statements by the prosecutor, during his closing argument, that constituted an improper comment on Scott’s constitutional right to remain silent; 2 the eyewitnesses’ testimony regarding threats they received from the families and friends of both Scott and his co-defendant; and 3 hearsay testimony regarding a statement one of the eyewitnesses allegedly made to a police detective. Finding that trial counsel was ineffective for failing to object to the State’s argument that the jury should view Scott’s pre-arrest silence as evidence of his guilt, we reverse. Viewed in the light most favorable to the verdict, Brown v. State ,6 the evidence showed that on June 3, 2004, two men were selling crack cocaine outside of an apartment complex in Columbus. The victim approached one of the men and asked to buy some crack, which the man obtained from his partner. The man held out the cocaine to show it to the victim, who grabbed a piece of the crack from the man’s hand, put it in his mouth, and began running away. The man’s partner then handed him a gun and the man began to chase the victim, firing shots in his direction. Two of the shots hit the victim, resulting in his death.
During their investigation of the incident, police located two eyewitnesses, Ron Blair and Tawanna Ford, each of whom identified Scott from a photographic line up as the shooter.7 Arrest warrants were issued for Scott and his co-defendant on June 10, 2004, and police attempted to arrest Scott at that time. They told Scott’s mother, his current girlfriend, and his ex-girlfriend that they were attempting to locate Scott, but there was no evidence that this information was ever communicated to Scott. Police arrested Scott in September 2004, when they located him living just over the state line, in Alabama.
