Finch was arrested nearby and told police of the plan to rob Reid, but maintained that he had nоt killed anyone. He further stated that Kilgore and Ward were armed with handguns, and that Ward fired repeatedly at Reid. Winder was also at the police station and encountеred Finch there; he identified Finch as one of the perpetrators. Winder also identified Kilgore in a subsequent photographic lineup.
After the fatal shooting, Kilgore rеturned to the apartment where he was staying. Kilgore was carrying a .22 caliber handgun. The beige shirt he was wearing had blood on it, and Kilgore told a woman who was at the aрartment that there had been a shootout and that the blood was Ward’s. That evening, Ward, using a fictitious name, received treatment at a local hospital for multiplе gunshot wounds. Several weeks later, police learned that Kilgore was at his mother’s apartment, and when they arrived they observed Kilgore trying to hide in a pile of clothing. He then attempted to flee and resist the officers.
1. Although Kilgore does not challenge the legal sufficiency of the evidence of his guilt, in keeping with this Court’s general рractice in appeals of murder cases, this Court has reviewed the record and concludes that the evidence at trial was sufficient to enable a rational trier of fact to find Kilgore guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson V. Virginia,
2. During closing argument and in response to defense claims in concluding argument that Kilgore and his co-defendant Ward did not know of any plan to rob Reid and were merely present at the crime scene, the prosecutor stated:
Distractions, ladies and gentlemen. Then they want you to say, well, they didn’t know it was a robbery planned. But they can’t deny being there, so they’ve got to come up with an excuse, so it was, we was just there, we didn’t know what was going on, we wasn’t part of it.
Because see, otherwise, they would be able to say something else. But you know they’re there.
He contends that such statements amounted to an impermissible comment on his right to remain silent and improperly shifted the burdеn of proof from the State to him, and that the trial court should have taken curative measures.
However, such contentions are unavailing. Kilgore did not object to the cited argument; therefore, he has waived his right to rely upon it as a basis for reversal of his convictions. Gates V. State,
An argument that the defendant has not rebutted or explained the State’s evidence doеs not amount to an improper burden-shifting argument. Ellington V. State,
The prosecutor’s remarks do not satisfy either prong of the test. Jennings, supra. They were not directed at Kilgore’s right to remain silent, i.e., his decision not to testify; they were in response to the defense argument regarding the State’s case and the defense’s failure to counter the State’s evidence. Id.; Johnson v. State,
3. Inasmuch as the cited remarks by the prosecutor were not improper as urged by Kilgore, trial counsel’s failure to object to them cannot support Kilgore’s claim that trial counsel provided ineffective assistance in that rеgard. Hendrix v. State,
Judgments affirmed.
Notes
The crimes occurred on February 2, 2003. On March 23, 2004, a Fulton County grand jury returned a multi-count indictment charging Kilgore, along with James Ward and Devoka Finch, with malice murder; two counts of felony murder; burglary; two counts of aggravated assault; three counts of conspiracy to commit a crime; and three counts of possession of a firearm during the сommission of a felony. The indictment contained an additional charge against Kilgore of possession of a firearm by a convicted felon, but that charge was dead docketed. Originally Kilgore was tried jointly with Ward before a jury May 19-23, 2006, and both men were found guilty on all counts, and sentenced thereon. Kilgore’s and Ward’s convictions and sentеnces were reversed on appeal and they received a new trial due to the violations of their state constitutional rights to be present at all critical stages of the proceedings when the trial court dismissed a juror ex parte and in the absence of a waiver by either of them. See Ward v. State,