Nathaniel Blige was convicted by a jury of armed robbery, aggravated battery and burglary. He appealed the judgment of conviction and the denial of his motion for new trial to the Court of Appeals where both were affirmed. Blige v. State, 205 Ga. App. 133 (421 SE2d 547) (1992)
. We granted Blige's application for a writ of certiorari to consider Div. 6 of the Court of Appeals' opinion to determine whether the state should be permitted to argue to a jury that a defendant would have called his or her own expert witness if the results of the expert's testing had been favorable.
1. During closing arguments, the state made several remarks concerning expert fingerprint evidence and Blige's lack of proof in rebuttal. Specifically, the state argued:
If he could dispute those fingerprints, where is his expert? He had something that could be examined, where is he at?
They could have brought somebody in to dispute the fingerprints, if they can be disputed.
No fingerprint expert to dispute the evidence because there's no disputing it.
In ruling that the aforesaid argument was permissible under Sabel v. State, 248 Ga. 10 (282 SE2d 61) (1981)
, the Court of Appeals did not have the benefit of a transcript of the actual comments made by the state. We have been provided with a transcript of the state's closing argument and having reviewed that argument have concluded that the state's argument is not a reference to Blige's failure to call his own expert witness, but is only a comment on the defense's failure to rebut the state's fingerprint evidence. Ingram v. State, 253 Ga. 622
, 634 (8) (323 SE2d 801
) (1984). This was a permissible argument in this case, but for reasons other than those enunciated by the Court of Appeals.
2. Relying on Sabel, the Court of Appeals held that the state is allowed to argue that Blige would have called the expert if the results of the expert's testing had been favorable. Although this tactic is permitted under Sabel, the state must still lay the same foundation for this argument as would be required for any argument counsel wishes to make to the jury. It is a basic tenet of trial procedure that counsel cannot argue facts not in evidence. Montos v. State, 212 Ga. 764
, 768 (95 SE2d 792
) (1956). In order to comment concerning the failure of a defendant to call a particular expert witness, the existence of that expert witness must be in evidence, Shirley v. State, 245 Ga. 616 (266 SE2d 218) (1980)
as well as the fact that the defense has been provided with materials to be analyzed by that expert witness. Thus, we disapprove any language in Div. 6 of the Court of Appeals' opinion which could be construed to mean that such argument may be made without the proper foundation having first been laid.
3. Blige also contends that the trial court erred when it required him to reveal the name of his expert and provide the state with a copy of his expert's report. The holding in Sabel expressly authorizes such disclosure. Sabel, 248 Ga. at 18. See also Caldwell v. State, 260 Ga. 278 (4) (393 SE2d 436) (1990)
Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.