Cheeks v. State, 325 Ga. App. 367

Cheeks was convicted of rape and false imprisonment; amended motion for new trial denied; appeal contends trial counsel ineffective for failing to object to State's silence arguments.
State's opening and closing argued Cheeks refused to talk to police; Cheeks' mother was extensively questioned about his failure to turn himself in.
Counsel testified she was extremely nervous as lead counsel in her first trial and courtroom appearance; she did not object to the comments, not for strategic reasons.
Georgia law prohibits arguments commenting on a defendant's silence (cited authorities).
Trial court found strong guilt evidence and no reasonable probability that counsel's silence objection would have changed the verdict.
State's pervasive and exploitative use of Cheeks' silence, against conflicting evidence, created a reasonable possibility the verdict was affected; judgment reversed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is trial counsel deficient for failing to object to silence comments?	Cheeks	Cheeks	Yes, deficient
Did counsel's deficiency prejudice the trial outcome?	Cheeks	Cheeks	Yes, prejudicial impact established

Reynolds v. State, 285 Ga. 70 (Ga. 2009) (prohibition on comment on silence)
Scott v. State, 305 Ga. App. 710 (Ga. App. 2010) (harmful when silence commented in context of conflicting evidence)
Johnson v. State, 293 Ga. App. 728 (Ga. App. 2008) (harmful comment on silence when evidence not overwhelming)
Arellano v. State, 304 Ga. App. 838 (Ga. App. 2010) (affirming analysis of prejudice from silence evidence)
Moore, 318 Ga. App. 118 (Ga. App. 2012) (similar suppression of silence argument prejudicial under prejudice standard)