Summary
In Wynn v. State, 230 Ga. 202 (196 S.E.2d 401), this court held it to be reversible error to overrule a motion for mistrial made after the trial judge instructed the defendant in the presence of the jury as to his right to make an unsworn statement not subject to cross examination, or to give sworn testimony subject to cross examination, where the defendant had previously informed the court that he had chosen to make an unsworn statement.
Summary of this case from Scott v. StateOpinion
27678.
ARGUED FEBRUARY 12, 1973.
DECIDED FEBRUARY 22, 1973.
Certiorari to the Court of Appeals of Georgia — 127 Ga. App. 463 ( 194 S.E.2d 124).
Calhoun Kernaghan, William C. Calhoun, for appellant.
R. William Barton, District Attorney, J. Bacheller Flythe, Richard E. Allen, for appellee.
The trial court erred in instructing the defendant in the presence of the jury of his right to testify or make an unsworn statement. The Court of Appeals erred in not so holding.
ARGUED FEBRUARY 12, 1973 — DECIDED FEBRUARY 22, 1973.
The facts as stated in Division I of the majority opinion of the Court of Appeals in this case, Wynn v. State, 127 Ga. App. 463 ( 194 S.E.2d 124), disclose that the trial judge, already aware that the defendant had elected to make an unsworn statement, insisted on advising him in the presence of the jury concerning his right to be sworn as a witness and to make an unsworn statement.
The statutory standard provides that "[t]he failure of a defendant to testify shall create no presumption against him, and no comment shall be made because of such failure." Code § 38-415 as amended (Ga. L. 1962, pp. 133, 134). We granted certiorari to determine whether the Court of Appeals erred in concluding that this standard was not violated in the present case, applying the guidelines disclosed by cases such as Waldrop v. State, 221 Ga. 319 (7) ( 144 S.E.2d 372); Hammond v. State, 225 Ga. 545, 546 ( 170 S.E.2d 226); and Massey v. State, 226 Ga. 703, 704 ( 177 S.E.2d 79), as distinguished from Lynch v. State, 108 Ga. App. 650 ( 134 S.E.2d 526).
We reverse. No holding in Waldrop, Hammond or Massey conflicts with this holding under the facts of this case. In our opinion the Court of Appeals correctly applied the law to the facts in Lynch, supra.
What is prohibited by the statute is a comment on the failure to testify. The remarks here made by the court to the defendant in the presence of the jury served to invite attention and emphasize his failure to defend himself under oath, and this is precisely what the statute prohibits. However well-intentioned any of the remarks were to insure that the defendant understood his rights, we think it is improper and prejudicial to advise the defendant of these rights in the presence of the jury, as distinguished from merely instructing the jury of the standards for evaluating an unsworn statement.
Judgment reversed. All the Justices concur, except Undercofler, J., who dissents.