In Mowoe v. State, the Georgia Court of Appeals reversed the defendant’s conviction for rape, holding that trial counsel provided ineffective assistance for failing to object to an improper demonstration during the prosecutor’s closing argument.
During closing argument, the prosecutor asked the defendant’s girlfriend, who was seated in the courtroom, to stand up and make her presence known, even though she had not been called to testify at trial. After asking the girlfriend to stand, the prosecutor said “Why not bring her to the stand, if I’m not telling the truth?” The defendant argued that this procedure was improper and directly undermined the defendant’s credibility while bolstering the victim’s credibility.
At a hearing on the defendant’s motion for new trial, the girlfriend testified that she had met with the defense attorney before trial to tell her what she knew about the case. She said that the defendant had her mother’s address, but no other way of contacting her. She stated that the defense attorney did not contact her within the month before trial, but also that the attorney did not have her phone number.
The defense attorney testified that she had tried to contact the girlfriend through friends and family up to the point of trial and even while the trial was ongoing. She stated that when the girlfriend stood up in the courtroom, she was “just really surprised she was there after we…tried to find her…kind of surprised, taken off guard by it and…so, no I did not object to it.”
The Court of Appeals held that the fact that the girlfriend did not testify at trial was common knowledge to the jury so it was a proper subject for the prosecutor’s closing argument. It was improper, however, for the prosecutor to introduce new evidence during his closing argument. The Court held that asking the girlfriend to stand up “demonstrated to the jury that she was readily available to testify and could have been called as a witness in the case—facts that were not presented during…trial.” Since the prosecutor used this tactic after the close of the evidence, the defendant had no opportunity to rebut this with evidence of defense counsel’s efforts to contact the girlfriend before trial. As a result, this demonstration constituted a violation of the defendant’s constitutional right to confrontation.
The Court also could not find that the error was harmless, noting that since the evidence was not overwhelming, the jury would need to weigh the credibility of the defendant’s testimony versus the victim’s. By showing that the girlfriend was available, the prosecutor suggested that the defense made the conscious choice not to call her to testify and therefore that her testimony would have been unfavorable to the defense. Thus, the Court concluded that there was a reasonable probability that, if this did not occur, the outcome of the trial may have been different. As a result, the Court reversed the defendant’s rape conviction and remanded the case for a new trial.
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