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Improper Comments by ADA Lead to Reversal of GA Rape Conviction

December 5, 2013

In Cheeks v. State, the Georgia Court of Appeals reversed the defendant’s convictions for rape and false imprisonment, finding that his defense lawyer at trial was ineffective for failing to object to improper comments made by the prosecutor at trial.

At trial, the State questioned the defendant’s mother aggressively regarding the fact that the defendant did not turn himself in to the police. The State also argued during both opening and closing that the defendant’s silence should be considered as evidence of his guilt. The defendant’s claim of ineffective counsel rested on the fact that his trial attorney failed to object to these impermissible comments by the State.

The Court of Appeals found that trial counsel was deficient in failing to make these objections. The Court noted that under Georgia law the State is not permitted to comment on a defendant’s silence or failure to come forward. Trial counsel testified that she did not have a strategic reason for her failure to object to these comments, but instead that she was very nervous and let her “nerves get the better of [her].”

The Court held that the State’s improper comments were “egregious and pervasive” and noted that the outcome of the trial depended in large part on the defendant’s credibility. The Court cited previous cases where it had reversed convictions when the State “deliberately and unequivocally argued that the jury should hold [the defendant’s] silence against him…” While the State produced other evidence of the defendant’s guilt, it was not overwhelming, and so the Court found that “in light of the evidence presented, there was a possibility that the State’s improper comments contributed to the guilty verdict.” Thus, the Court concluded that there was a reasonable probability that trial counsel’s deficient performance affected the outcome of the trial. As a result, the defendant’s convictions for rape and false imprisonment were reversed.

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