In Dumas v. State, the Georgia Court of Appeals reversed the defendant's convictions for rape and child molestation, finding that his trial counsel was ineffective for failing to object to the prosecutor's improper comments on the defendant's post-arrest silence.
The defendant was convicted of rape and child molestation as a result of allegations made by his ex-girlfriend’s daughter. Although it was alleged that the abuse took place when she was seven years old, she did not report it to family members until she was seventeen.
At trial, the defendant testified that he never engaged in any inappropriate sexual conduct with the girl. On cross examination, the prosecutor asked him if ever told the police his version of the facts. Defense counsel objected and the trial court sustained the objection. Then, during closing arguments, after noting that the defense had emphasized that the police never asked the defendant for a statement when he was arrested, the prosecutor remarked, “You’re getting picked up on a rape warrant. Scream it from the mountaintops, I didn’t do it. But nothing.” Defense counsel did not raise any objection to the prosecutor’s closing argument.
On appeal, the defendant argued that his trial counsel was ineffective for failing to request a curative instruction or a mistrial in response to the State’s improper questioning and comments regarding his post-arrest silence.
Under Georgia law, the State is prohibited from making any comments or arguments pertaining to a defendant’s post-arrest silence. A defendant has a constitutional right to remain silent and any exercise of this right cannot be addressed in the presence of the jury.
The Court of Appeals found that defense counsel’s performance during cross-examination could not be deemed deficient, given that he raised a timely objection to the prosecutor’s questioning. However, it was held that his failure to renew this objection or ask for a curative instruction during the prosecutor’s closing argument did, in fact, constitute deficient performance.
The Court noted that the prosecutor’s repeated violations of the defendant’s “constitutional right to remain silent was neither accidental nor inadvertent.” It was also noted that the evidence in the case was far from overwhelming considering the lack of any physical evidence and the ten-year delay in reporting the alleged abuse. Thus, the jury was required to weigh the girl’s credibility against the defendant’s credibility, the latter of which was undermined by the prosecutor’s improper comments during closing.
As a result, the Court reversed the defendant’s convictions and remanded the case for a new trial.
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