Unstricken Answer Is Evidence: A Prosecutor May Argue a Defendant’s Refusal to Demonstrate When the Refusal Was Heard by the Jury and Not Stricken

1. Introduction

Strong v. State arises from a violent domestic confrontation at a Cobb County home on August 24, 2015, culminating in the fatal stabbing of Maurice Arnold (32) and the stabbing of Deandre Arnold (22). The appellant, Aaron Edward Strong—Maurice’s stepfather and Deandre’s step-grandfather—was retried in 2023 after this Court previously reversed his first-trial convictions. He was convicted at the second trial of felony murder, two counts of aggravated assault, and two counts of possession of a knife during the commission of a felony, and he received a life-without-parole sentence for felony murder plus consecutive terms on the remaining counts.

Strong’s principal defense was justification/self-defense: he testified that Maurice swung at him and appeared to hold “either a bottle or a bat,” and that Deandre jumped on his back and choked him, prompting Strong to draw his knife. The State presented eyewitness testimony (neighbor Aaron Day and Deandre) depicting Strong as the aggressor who “lunged” at an unarmed Maurice and stabbed both men repeatedly.

On appeal from the retrial, Strong asserted (1) erroneous exclusion of text messages sent to Maurice shortly before the stabbing; (2) improper closing argument referencing Strong’s refusal to demonstrate the stabbing with a replica knife; (3) error in refusing a mistake-of-fact jury instruction; and (4) ineffective assistance of counsel (IAC) tied to the text-message issue and to unobjected references to Strong’s “prior testimony.” The Supreme Court of Georgia affirmed across the board.

2. Summary of the Opinion

3. Analysis

3.1. Precedents Cited and Their Role

A. Prior reversal and posture of the retrial

• Strong v. State, 309 Ga. 295 (2020): The Court noted that Strong’s first-trial convictions had been reversed, framing the 2023 retrial as the operative proceeding under review. While the 2026 opinion does not revisit the 2020 reasoning, it underscores the procedural complexity that later affected preservation/forfeiture issues and the prosecutor’s careful phrasing about “prior testimony.”

B. Harmless-error methodology and how the Court reviews the record

• Wallace v. State, 320 Ga. 272, 273 n.2 (2024): The Court expressly applied Wallace’s approach in cases involving harmless error and IAC prejudice: rather than viewing evidence “in the light most favorable to the verdict,” the Court “set[s] out the evidence in detail and weigh[s] it as we would expect reasonable jurors would have.”
  This choice matters: it signals a more holistic record assessment when the appellate question is whether an error (or counsel’s deficiency) likely affected the verdict, not whether evidence was sufficient.
• Mbungu v. State, 322 Ga. 564, 567 (2025): Mbungu supplied both (i) the abuse-of-discretion standard for evidentiary rulings and (ii) the nonconstitutional harmless-error test: whether it is “highly probable” the error did not contribute to the verdict. The Court leaned on Mbungu to conclude the excluded text messages were cumulative of other admitted evidence about Maurice’s volatility and thus non-prejudicial.
• Tarver v. State, 319 Ga. 165, 171-73 (2024) and Henderson v. State, 310 Ga. 708, 713-14 (2021): These decisions reinforced a pattern: even when exclusion of victim-character/threat evidence is questionable, the error is harmless where similar evidence came in and the defendant’s justification claim is otherwise weak. The Court used them to situate Strong’s text-message argument within established harmless-error outcomes.

C. Closing argument latitude and credibility inferences

• Johnson v. State, 924 SE2d 451, 457 (Ga. 2025): Johnson supplied the governing rule: prosecutors enjoy “wide latitude” and may argue “reasonable inferences from the evidence,” including credibility arguments, evaluated in context. The Court treated the prosecutor’s comments about Strong’s refusal to demonstrate as a credibility inference grounded in evidence heard by the jury.
• Ridley v. State, 315 Ga. 452, 456 (2025): Cited for the abuse-of-discretion standard in reviewing trial court rulings on objections during closing argument.
• Pyne v. State, 319 Ga. 776, 785 (2024): Reinforced that closing argument may address “factual matters relating to the credibility of witnesses,” again supporting the Court’s view that the prosecutor’s remarks stayed within permissible bounds.

D. Mistake of fact vs. justification instructions

• Redding v. State, 311 Ga. 757, 759 (2021): This was the central authority foreclosing Strong’s request for a mistake-of-fact charge. Redding holds that when the alleged “mistake” is the belief the victim possessed a weapon or was about to use deadly force, a mistake-of-fact instruction is not required if the jury is fully charged on justification/self-defense (including reasonable belief).
• Mbungu v. State, 322 Ga. 564, 569 (2025): Confirmed the Redding principle in a similar “mistaken belief the victim had a gun” posture.
• Profet v. State, 322 Ga. 731, 738, n.3 (2025): Used to reject Strong’s invitation to overrule Redding where he failed to perform the requisite stare decisis analysis. The Court treated stare decisis as a litigant’s burden when asking to overturn established doctrine.

E. Ineffective assistance of counsel standards and preservation

• Strickland v. Washington, 466 US 668, 687 (1984): Provided the two-prong deficiency/prejudice framework. The Court applied it in the classic manner: strategy deference on deficiency, and “reasonable probability” on prejudice.
• Davis v. State, 315 Ga. 252, 262 (2022): Cited for the strong deference to trial strategy, including witness-calling decisions, unless “patently unreasonable.”
• Copney v. State, 322 Ga. 794, 798 (2025): Reiterated that failure on either Strickland prong ends the claim.
• Carr v. State, 301 Ga. 128, 129-30 (2017): Supported the conclusion that counsel was not deficient for declining to call a witness whose testimony could be “more harmful than helpful”—a direct analogue to counsel’s decision not to subpoena a hostile girlfriend who might undermine the defense narrative.
• Allen v. State, 317 Ga. 1, 12-13 (2023): Controlled forfeiture: IAC claims must be raised and pursued at the “earliest practicable moment” (typically in the motion for new trial when new counsel appears) and must be ruled on. Questioning at the hearing alone does not amend the motion absent a ruling.

F. Cumulative error

• State v. Lane, 308 Ga. 10 (2020): Cited by Strong for cumulative-error review; the Court acknowledged the doctrine but found no combined prejudice.
• Asmelash v. State, 323 Ga. 33, 44 (2025): Provided the Court’s concluding framework for rejecting cumulative error where the record shows overwhelming evidence and any arguable errors are non-prejudicial or merely cumulative.

G. Persuasive authorities adopted (implicitly) on “unstricken answer” practice

• United States v. Zaccaria, 240 F.3d 75, 82 (1st Cir. 2001);
• Rodriguez v. State, 903 SW2d 405, 410 (Tex. App. 1995);
• California v. Anguiano, 2015 WL 1254632, *1, n.2 (Cal. App. 4 Dist. March 17, 2015) (unpublished).

Although cited in a footnote, these cases and the federal evidence treatise excerpt were pivotal to the Court’s reasoning that Strong’s refusal (“I’m not going to put that in my hand, ma’am.”) remained before the jury because no motion to strike or instruction to disregard followed. The Court noted it had not “addressed this particular issue before,” then aligned Georgia practice with the mainstream trial-advocacy principle: sustaining an objection does not retroactively erase an answer already heard by the jury.

3.2. Legal Reasoning

A. The text-message exclusion: the Court sidesteps admissibility and decides on harm

Strong argued that texts from “Bighead Girl I Love” should have been admitted to show Maurice’s heightened agitation shortly before the incident, supporting self-defense. The trial court excluded the texts as hearsay at trial and later justified exclusion as “not relevant” because “their meaning was far too speculative.” On appeal, the Supreme Court of Georgia pretermitted (skipped) deciding whether they were (i) non-hearsay under OCGA § 24-8-801(c) as “state of mind” circumstantial evidence, or (ii) relevant to justification.

The Court instead applied the nonconstitutional harmless-error test from Mbungu v. State: given the substantial evidence already admitted about Maurice’s anger, volatility, prior threats, and the heated argument minutes earlier—plus strong eyewitness evidence that Strong attacked without provocation—any marginal probative value of “vague” texts could not reasonably have affected the verdict. The Court emphasized two points:

• Cumulativeness: The jury already had “ample other evidence” of the same general proposition (Maurice’s agitation and history).
• Weakness of self-defense narrative: Strong’s testimony about a “bottle or a bat” was unsupported by eyewitnesses, and the texts did not materially shore up that claim.

B. The closing-argument issue: the Opinion’s most practice-shaping holding

The prosecutor asked Strong to demonstrate the stabbing with a replica knife. Strong responded, “I’m not going to put that in my hand, ma’am.” Only then did defense counsel object; the trial court sustained the objection, but counsel did not move to strike Strong’s response and did not request a curative instruction. Later, in closing, the prosecutor argued that Strong’s refusal reflected credibility problems—he declined because his account could not be acted out plausibly.

The Court’s reasoning proceeded in two steps:

1. Was the “refusal” part of the evidentiary record? Yes. The Court found no Georgia precedent squarely on point but adopted the widely accepted approach (supported by treatise and out-of-state cases cited in footnote 14): sustaining an objection does not remove an answer already heard. Without a motion to strike (and a grant) or an instruction to disregard, the statement remains available for juror consideration.
2. Was the prosecutor’s use of that evidence proper argument? Yes. Under Johnson v. State and Pyne v. State, prosecutors may argue reasonable inferences about credibility from evidence before the jury. In context, the prosecutor’s remarks were framed as “common sense” credibility assessment, not as an attempt to penalize invocation of a constitutional privilege or to rely on excluded material.

This portion of the opinion implicitly teaches a concrete trial lesson: if damaging testimony slips in before an objection is sustained, counsel must move to strike and request an instruction—otherwise the testimony can become fair game for closing argument.

C. Mistake of fact: doctrinal consolidation under the justification charge

Strong sought a mistake-of-fact instruction (OCGA § 16-3-5) based on his claimed belief that Maurice held a “bat or a bottle.” The Court treated the request as governed by Redding v. State: when the defendant’s “mistake” is simply about the victim’s possession of a weapon or imminent deadly force, the justification/self-defense charge (OCGA § 16-3-21)—if fully and correctly given—covers the necessary “reasonable belief” component.

The Court declined Strong’s invitation to overrule Redding, emphasizing that overruling precedent requires a developed stare decisis argument (per Profet v. State), which Strong did not provide.

D. Ineffective assistance: strategy deference and procedural forfeiture

Two IAC theories were presented; only one was preserved.

• Failure to subpoena the texter (Joanna Deutsch): The trial court credited counsel’s testimony that Deutsch was hostile (she hung up when counsel identified himself) and that calling her carried risk. The Supreme Court treated this as a strategic witness decision, protected under Davis v. State and supported by Carr v. State. Independently, prejudice failed because Deutsch’s motion-for-new-trial testimony did not indicate Maurice planned violence, and because the text-message evidence was deemed non-harmful anyway.
• Failure to object to references to “prior testimony”: The Court held the claim forfeited under Allen v. State because Strong did not raise it in the motion for new trial, did not pursue it at the hearing as a claim, and—critically—did not obtain a ruling. The Court reinforced a procedural discipline point: eliciting testimony at a hearing is not the same as properly amending/presenting a claim.

3.3. Impact

A. Trial practice: preserving the record when an answer “gets out”

The opinion’s most concrete future-facing effect is its treatment of unstricken testimony. Georgia lawyers can cite Strong v. State for the proposition that:

• A sustained objection alone is not enough once the jury has heard the answer.
• Move to strike and request an instruction to disregard to prevent the answer from becoming evidence and closing-argument fodder.
• Absent that, the opposing party may argue credibility inferences from the answer under the “wide latitude” closing argument cases.

B. Evidentiary disputes: harmless error will dominate when proof is cumulative

On victim-state-of-mind evidence and justification narratives, Strong continues a line of cases (Mbungu, Tarver, Henderson) showing that appellate relief is unlikely where excluded evidence is cumulative and the self-defense theory is not strongly corroborated by independent evidence.

C. Jury instructions: Redding remains entrenched

The Court’s refusal to revisit Redding (and its insistence on a proper stare decisis argument per Profet) signals that defendants who frame “mistake” as “I thought the victim had a weapon” should expect the issue to be handled through justification/self-defense instructions rather than a separate mistake-of-fact charge.

D. Post-trial litigation: forfeiture risk for IAC claims

The opinion underscores the procedural rigor of Allen v. State: IAC theories must be expressly raised in the motion for new trial (or properly amended), pursued, and ruled upon—or they will not be heard on appeal. This incentivizes comprehensive motion-for-new-trial practice, especially after retrials where transcripts and “prior testimony” references may create additional appellate angles.

4. Complex Concepts Simplified

• Felony murder: A murder charge where the death occurs during the commission of a felony (here, tied to assaultive conduct), without requiring proof of “malice” intent to kill.
• Hearsay (OCGA § 24-8-801(c), § 24-8-802): An out-of-court statement offered to prove the truth of what it asserts; generally inadmissible unless an exception applies. Strong argued the texts were not offered for their truth, but as circumstantial evidence of emotional state.
• Relevance: Evidence must make a fact of consequence more or less probable. The trial court later called the texts “too speculative,” i.e., their meaning was unclear.
• Nonconstitutional harmless error (“highly probable”): Even if a trial judge made a mistake admitting/excluding evidence, the conviction stands if it is highly probable the mistake did not affect the verdict.
• Justification/self-defense (OCGA § 16-3-21): The defendant must reasonably believe force is necessary to prevent death or great bodily injury (as charged here). This “reasonable belief” concept often subsumes “I thought he had a weapon” claims.
• Mistake of fact (OCGA § 16-3-5): A separate defense when a factual mistake negates criminal intent. Under Redding v. State, when the “mistake” is merely about whether the victim had a weapon, a full justification charge is enough; a separate mistake-of-fact instruction is not required.
• Ineffective assistance of counsel (Strickland): Requires (1) objectively unreasonable attorney performance and (2) a reasonable probability that, but for the errors, the outcome would have been different.
• Forfeiture of claims: If a defendant fails to raise and obtain a ruling on an IAC claim at the motion-for-new-trial stage when represented by new counsel, the appellate court will not consider it.
• Cumulative error: Multiple non-reversible errors can, in aggregate, warrant a new trial if together they create prejudice. Here, the Court found no such combined effect.

5. Conclusion

Strong v. State affirms serious violent-crime convictions while delivering a practice-significant clarification: an answer heard by the jury remains usable evidence unless it is stricken (and/or the jury is instructed to disregard it), even if an objection is later sustained. That principle directly supported the Court’s approval of a prosecutor’s credibility-based closing argument grounded in the defendant’s in-court refusal to demonstrate his account.

Beyond that focal point, the decision reinforces three broader themes in Georgia appellate review: (1) harmless-error analysis will defeat evidentiary claims where the excluded proof is cumulative and the defense theory is weakly corroborated; (2) Redding v. State continues to limit mistake-of-fact instructions in weapon-belief self-defense cases; and (3) IAC litigation remains highly procedural, with forfeiture looming when claims are not properly raised and ruled upon at the motion-for-new-trial stage.