A Camden County jury found Jason Daniel Duffy guilty of two counts of aggravated assault, OCGA § 16-5-21 (a), and two counts of possession of a firearm during the commissiоn of a crime, OCGA § 16-11-106. He appeals, contending the trial court erred in denying his motion for new trial because remarks made by the prоsecutor during closing argument constituted reversible error. We disagree and affirm.
Viewed in the light most favorable to the jury’s verdict, 1 the record reveals the following facts. During the early morning hours of October 25, 2002, Duffy drove his green Honda alongside a pickup truck driven by Dawn Landry and occupied by passenger Micah Bаker. Duffy fired two shots into the truck. Earlier in the evening, Baker and Duffy had exchanged unfriendly words. Having escaped injury, Landry and Baker reportеd the shooting to the police, described Duffy and his car, and gave the police Duffy’s tag number. When the police located Duffy at his residence and attempted to arrest him, Duffy fled yelling “cops, cops.” Duffy remained at large for five hours. The police searched Duffy’s residence and car. Although the police did not recover the handgun used in the shooting, they found a holster in Duffy’s car and a box of bullets in Duffy’s residence. The .25 caliber bullets matched a spent shell casing found at the scene *669 of the shooting and were consistеnt with a slug recovered from the victims’ truck. Further, a forensics expert determined that the recovered slug had most likely been fired from а pistol, not a revolver. A pawn shop owner testified that two months before the shooting he sold Duffy a .25 caliber pistol, a holster, аnd a box of .25 caliber ammunition. He identified the bullets and the holster as those he sold to Duffy. At trial, Baker and Landry identified Duffy as the shooter.
1. Duffy contends the trial court should have declared a mistrial after the prosecutor made the following remarks during closing argument:
And the dеfendant also had the ability to commit the crimes. Lo and behold, he had a .25 caliber handgun, Raven Arms handgun. The bullets that he had for his gun are thе same as the shell casing. It’s the same grain. It’s the same caliber____ And then the thing that speaks loudest is what we don’t have. We don’t have Mr. Duffy’s gun, and thаt speaks louder than anything else in this case. That screams out the defendant’s guilt.
Duffy contends this argument constitutes reversible error because it is an impermissible comment on his right to remain silent and an attempt to shift the burden on him to produce the handgun. We disagree.
The prosecutor did not expressly argue that Duffy should have testified where the gun was or present evidence explaining why he did not produсe it. He did not suggest 2 that Duffy had a legal duty to produce the gun or expressly ask that the defense explain its disappearancе. In this case, the prosecutor simply pointed out in his argument that Duffy owned a pistol like the one used in the shooting and it could not be found even after the police thoroughly searched. He argued, based upon that evidence and the evidence of Duffy’s flight and lаter arrest, that Duffy either hid the gun or disposed of it in an effort to avoid prosecution. The prosecutor contended that such аn act, like Duffy’s flight, implies a guilty conscience. 3 At the very *670 most, the argument may have implicitly challenged the defense to offer an explanation for the gun’s absence. Putting such pressure on the defense does not require the defendant to testify or to produce any еvidence. Rather, the defense may respond by explaining the gun’s absence in closing argument, as it did in this case by suggesting that Duffy may have “transfеrred that gun to someone else.” As the Supreme Court of Georgia has held, even when the prosecutor explicitly argues that thе defense should explain certain evidence, that does not necessarily
shift the burden of proof or constitute an improрer comment on [the defendant’s] failure to testify. See Ward v. State,262 Ga. 293 (6) (a) (417 SE2d 130 ) (1992) (“make them explain” argument not improper); United States v. Norton, 867 F2d 1354, 1364 (11th Cir. 1989). The State’s comments were not directed at the defendant’s decision not to testify; instead, they were directed at defense counsel’s failure to rebut or explain the State’s evidence. Id.; Ingram v. State,253 Ga. 622 (8) (323 SE2d 801 ) (1984) (while a prоsecutor may not comment on a defendant’s failure to testify, he may argue that evidence of guilt has not been contradictеd or rebutted).
Johnson v. State,
2. Duffy also objects to remarks made by the prosecutor during closing argument that disparaged his theories of defense. In his closing, Duffy suggested that Baker, one of the victims, shot the truck because of a drug debt or a domestic dispute. The prosecutor quipped sarcastically: “So what if this, or what if something else happened, maybe Nicole Brown Simpson was killed by Colombian drug dealers. . . . Speculation, conjecture, guesses, that’s not what this is about.” As we have repeatedly held:
Counsel enjoys very wide latitude in closing arguments, and may make use of well-known historical facts and illustrations, so long as he does not make extrinsic or prejudicial statements that have no basis in the evidence.... Counsel’s illustrations during closing argument may be as various as are thе resources of his genius; his argumentation as full and profound as his learning can make it; and he may, if he will, give play to his wit, or wing to his imagination.
(Punctuation and footnotes omitted.)
Head v. State,
Judgment affirmed.
Notes
Jackson v. Virginia,
Duffy contends that describing the evidence as “speaking” is a cleverly crafted “neurolinguistic programming” technique designed to remind the jury that he failed testify in his own behalf. Pretermitting whether the prosecutor was being that subtle, we are loathe to assign such motives to the use of an extremely common figure of speech, one we have used ourselves. See, e.g.,
Byrd v. Med. Center of Central Ga.,
This argument is based on logical inferences properly drawn from the evidenсe. See
Fann v. State,