Carruth v. State

155 Ga. App. 666 (1980)

272 S.E.2d 531

CARRUTH v. THE STATE.

60195.

Court of Appeals of Georgia.

Submitted July 9, 1980.

Decided September 9, 1980.

Daniel Kane, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, for appellee.

SHULMAN, Judge.

Defendant appeals his conviction of two counts of armed robbery. We affirm.

1. Appellant complains that the district attorney's comment regarding defendant's failure to return to court, made during closing argument, impermissibly prejudiced his defense. It is appellant's contention that such comment was in actuality a comment upon the exercise of defendant's right against self-incrimination and mandated the grant of his motion for mistrial. We disagree.

The comment made by the district attorney was in reference to the apparent "flight" of the defendant, who failed to appear in court after the first day of trial. Since evidence of flight (including the defendant's failure to show up at the time of trial and evidence that the accused attempted to escape during the trial) is admissible as tending to establish the guilt of an accused (see Johnson v. State, 148 Ga. App. 702 (1) (252 SE2d 205)), the district attorney's comment regarding defendant's failure to appear at trial did not constitute an impermissible reference to defendant's exercise of his right not to testify at trial. Rather, it was a permissible reference to defendant's flight, which "... is always a circumstance which may be shown and a jury is authorized to take into account in determining guilt or innocence of an accused." Id. We therefore find no error in the trial court's denial of defendant's motion for mistrial premised upon the *667 district attorney's comments in closing argument.

2. In view of the eyewitness identification of the defendant as one of the perpetrators of the offenses charged, along with circumstantial evidence of his guilt (possession of clothing stolen from the victim), we conclude that a rational trier of fact could reasonably have found defendant guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560). See also Kimbro v. State, 152 Ga. App. 893 (264 SE2d 327).

Finding no error for any reason assigned, the judgment of the trial court is affirmed.

Judgment affirmed. Quillian, P. J., and Carley, J., concur.