State v. Oates

BECTON, Judge.

We are once again presented with the issue of a prosecutor commenting during final argument upon the defendant’s failure to testify. The private prosecutor asked, as reconstructed for the record by the trial court: “Why in the world did the defendant sit here for these one-and-a-half days remaining mute and not come to the stand?”

The State concedes that the prosecutor’s comment was improper, but argues that the comment was not prejudicial in view of the fact that the court sustained defendant’s objection to the comment and immediately instructed the jury to disregard it. We do…