State v. Merwin, 186 So. 3d 759

Background

Defendant David D. Merwin was charged with aggravated rape, molestation of a juvenile, and indecent behavior with a juvenile arising from alleged sexual abuse of two boys who spent the night at his home in August 2013.
Victims A.P. and J.G. gave consistent reports to their mother, a forensic interviewer, and at trial: allegations included forced oral sex, attempted anal penetration, exposure to pornography, and being given an alcoholic beverage; the home search recovered lubricant, alcohol, and pornography.
The State presented videotaped child interviews, medical evaluation by a forensic nurse (who diagnosed sexual abuse though found no physical findings), and testimony from law enforcement and the forensic interviewer; defense presented family witnesses and Merwin’s denial.
Defense character witnesses (including a friend, Montelius) testified favorably; cross-examination of Montelius elicited awareness of Merwin’s prior felony convictions and an erroneous suggestion Merwin assaulted his stepmother (actually committed by his father), which the court cured with an admonition.
Defendant testified, admitted three prior felonies from his youth, and denied the allegations; the jury convicted on all counts and the trial court imposed concurrent sentences including life without parole for aggravated rape.
On appeal Merwin alleged ineffective assistance of counsel for failure to object to (1) testimony implicating post-arrest silence (via questions about his wife), (2) admission/elicitation of prior felony convictions on cross-examination of a defense witness, and (3) rebuttal expert opinion that victims showed no signs of coaching.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Merwin)	Held
Admission of testimony about post-arrest silence	Cross-examination concerned Merwin’s wife, who denied being told not to speak; thus questioning was permissible and not Doyle error	Trial counsel should have objected because questioning suggested Merwin directed his wife’s post-arrest silence, invoking Doyle v. Ohio protections	Court: No Doyle violation — questions concerned wife’s silence, not defendant’s, and any error would be harmless given strong case and other testimony
Cross-exam of defense character witness about prior felonies	State may rebut character evidence by inquiring into specific instances/prior convictions when defense opens door	Counsel should have objected when Montelius was asked about Merwin’s felony rap sheet and alleged assault on a stepmother	Court: Montelius was a character witness; State’s rebuttal was permissible. Trial court’s admonition cured mistaken reference to father’s conviction
Rebuttal expert testimony on coaching/credibility	Forensic nurse may testify about signs of coaching; she did not opine on guilt, only absence of coaching indicators	Counsel should have objected because witness impermissibly vouched for victims and commented on credibility	Court: Nurse’s testimony limited to observing no red flags of coaching; she did not opine on guilt — testimony admissible
Ineffective assistance of counsel overall	N/A	Failure to object to the three lines of testimony deprived Merwin of a fair trial	Court: Record insufficient to show counsel’s performance was deficient and prejudicial under Strickland; convictions and sentences affirmed

Key Cases Cited

Doyle v. Ohio, 426 U.S. 610 (prosecution may not use a defendant’s post-Miranda silence to impeach)
Strickland v. Washington, 466 U.S. 668 (two-prong test for ineffective assistance of counsel)
Chapman v. California, 386 U.S. 18 (harmless-error standard for constitutional trial errors)
Arizona v. Fulminante, 499 U.S. 279 (harmless-error analysis and assessment of trial errors in context)
Sullivan v. Louisiana, 508 U.S. 275 (verdict must be unattributable to the error for harmlessness standard)
State v. Prudholm, 446 So.2d 729 (ineffective assistance usually addressed on post-conviction relief)
State v. Seiss, 428 So.2d 444 (record may suffice on appeal in some ineffective-assistance claims)
State v. Richards, 750 So.2d 940 (Doyle and the limits on using post-arrest silence)
State v. LaCaze, 824 So.2d 1063 (Louisiana discussion of counsel effectiveness standard)
State v. Johnson, 664 So.2d 94 (harmless-error review in Louisiana)