Holmes v. State

148 Ga. App. 817 (1979)

253 S.E.2d 237

HOLMES v. THE STATE.

56973.

Court of Appeals of Georgia.

Argued January 8, 1979.

Decided January 29, 1979.

R. Allen Hunt, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Victor Alexander, Jr., Gordon H. Miller, Assistant District Attorneys, for appellee.

DEEN, Presiding Judge.

Steven Holmes appeals from his conviction by a jury for the offenses of carrying a concealed weapon, carrying a pistol without a license, and two counts of armed robbery.

1. Appellant contends that the trial court erred in overruling his motion to suppress the identification testimony and relies upon Moore v. Illinois, 434 U.S. 220 (98 SC 458, 54 LE2d 424) (1977) which held that testimony regarding one-on-one identification made at a preliminary hearing without defendant having benefit of counsel violated the defendant's Sixth Amendment right to counsel. Moore is not controlling in the present case because defendant waived his right to counsel at the preliminary hearing, the state did not elicit testimony regarding the preliminary hearing at trial, and this testimony was elicited from the witnesses by defendant. Where counsel obtains substantially the same testimony that he complains of in his pre-trial motion, he cannot complain on appeal. Favors v. State, 145 Ga. App. 864 (244 SE2d 902) (1978). See also Amoson v. State, 146 Ga. App. 510 (246 SE2d 502) (1978).

2. In two of his enumerations of error, the defendant complains that the trial court erred in failing to grant a mistrial because the district attorney, during his closing argument, commented on the appellant's failure to produce evidence and that the defendant's character was put in evidence. "It is not error, nor is it improper for the prosecutor to reflect upon the failure of the defense to present any evidence to rebut the proof adduced by the state." Allanson v. State, 144 Ga. App. 450, 455 (241 SE2d 314) (1978). An examination of the closing argument *818 shows no reference to the character of the defendant, but merely shows reasonable inferences and deductions that could be made from the testimony given at trial including that of the defendant.

3. Defendant also asserts the general grounds. An examination of the transcript reveals ample evidence to support the jury verdict.

Judgment affirmed. McMurray and Shulman, JJ., concur.