Reynolds v. State

The rule in Mallory v. State, 261 Ga. 625 1991, that the prosecutor may not comment on a defendant's pre-arrest silence, is not limited to situations in which the defendant remains silent when questioned by an agent of the state or the defendant fails to come forward in the face of knowledge that he/she is the focus of a criminal investigation.

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In Reynolds v. State , 290 Ga. App. 44 658 SE2d 815 2008 Reynolds I , Paul Reynolds appealed from his aggravated assault conviction and asserted that he received ineffective assistance of counsel on four separate grounds. We affirmed his conviction, in part, based upon this court’s decision in Morrison v. State , 251 Ga. App. 161, 164 3 554 SE2d 190 2001. In Reynolds v. State , 285 Ga. 70, 72 673 SE2d 854 2009 Reynolds II , the Supreme Court overruled Morrison , supra, and its progeny, reversed our opinion in Reynolds I , and remanded this case for consideration consistent with the Supreme Court’s opinion. 1. Because three of the ineffective assistance claims raised by Reynolds are not affected by the Supreme Court’s decision in Reynolds II , supra, we find no merit in them for the reasons stated in Divisions 1, 2 and 4 of Reynolds I , supra.

2. Based upon the Supreme Court’s holding in Reynolds II , supra, we conclude that trial counsel’s performance was deficient because he failed to object to the following closing argument by the State: I want you to consider that Mr. Reynolds had the opportunity to stay at the victim’s home that night and call the police or wait for police to respond to give his version of the facts. But we have all heard his version of the facts for the first time today on the witness stand. 17 months after this incident occurred is the first time that we have all heard what his version of the events are, after all of the State’s witnesses have testified and he has had an opportunity to hear what each of our witnesses have said so that he can tell his testimony to fit what is best suited for him. Consider —consider that. In Reynolds II , supra, the Supreme Court explained that its prohibition against comment upon a defendant’s silence or failure to come forward is a “bright-line evidentiary rule” and that its opinion in Mallory v. State , 261 Ga. 625 409 SE2d 839 1991, should not be limited to its facts. 285 Ga. at 71.

Reynolds v. State

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