Kilgore v. State, 300 Ga. 429

On Feb. 2, 2003, Kilgore, his brother Devoka Finch, and James Ward planned to rob John Reid; Kilgore entered Reid’s house and a shooting ensued in which Reid was killed and Jarvis Winder was shot at.
Finch and Ward were armed; Ward pushed in firing; Finch fled; Kilgore exchanged fire with Winder, shot at Winder and later had blood on his shirt and possessed a .22 handgun.
Finch separately told police of the robbery plan and implicated Kilgore and Ward; Winder identified Finch and later identified Kilgore in a photo lineup.
Kilgore and Ward were tried twice (first convictions reversed for a juror-ex parte dismissal); after retrial (2012) Kilgore was convicted of felony murder (during aggravated assault), aggravated assault (Winder), and two firearm-possession counts and sentenced to life plus consecutive terms.
Kilgore appealed denial of his motion for new trial, arguing prosecutor’s closing statements improperly commented on his right to remain silent and shifted the burden, and that trial counsel was ineffective for failing to object.

Issue	Plaintiff's Argument (Kilgore)	Defendant's Argument (State)	Held
Whether prosecutor’s closing comments improperly commented on Kilgore’s right to remain silent or shifted burden	Prosecutor’s remarks (‘they’re there’ / ‘otherwise they would say something else’) amounted to a comment on Kilgore’s silence and impermissibly shifted burden to explain evidence	Remarks responded to defense theory and pointed to lack of rebuttal, not to Kilgore’s decision not to testify; any objection was waived	Waived for lack of contemporaneous objection; on the merits remarks were not burden-shifting nor a comment on silence, so no curative measures required
Whether trial counsel was ineffective for not objecting to the closing remarks	Failure to object to improper prosecutorial comment was deficient representation causing prejudice	Because the comments were not improper, failure to object cannot be ineffective assistance	No ineffective assistance — counsel had no basis to object to permissible argument

Jackson v. Virginia, 443 U.S. 307 (establishes standard for sufficiency of the evidence review)
Gates v. State, 298 Ga. 324 (objection must be preserved to obtain reversal for prosecutorial misconduct)
Ellington v. State, 292 Ga. 109 (argument that defendant failed to rebut State’s evidence is not burden-shifting)
Jennings v. State, 282 Ga. 679 (test for whether prosecutor’s remarks impermissibly comment on defendant’s silence)
Johnson v. State, 271 Ga. 375 (distinguishing permissible response to defense theory from comment on right to testify)
Hendrix v. State, 298 Ga. 60 (no ineffective assistance where objection would have lacked merit)
Ward v. State, 288 Ga. 641 (prior reversal due to defendant’s absence at critical stage leading to retrial)