Gregory Dumas appeals the denial of his motion for new trial after a jury convicted him of rape and child molestation. On appeal, he asserts that the trial court erred in denying his claim that he received ineffective assistance of trial counsel. We agree and reverse.
Viewed in the light most favorable to the verdict,
The victim did not tell her mother about these incidents because she was scared, and Dumas told her not to say anything. However, when the victim was around eight years old, she began cutting herself on her arms and engaged in other self-destructive behaviors. She testified that she did these things because of what had happened to her. At around the same time, the victim’s family began noticing changes in her behavior. She started isolating herself, would not play with other kids, and she appeared sad. Her family did not notice that the victim had been cutting herself, however, because she started wearing baggy clothes and long-sleeve shirts.
In 2007, when the victim was 17 and after she had begun therapy, she told her cousin, grandmother, and mother what had happened, and her mother contacted police.
On appeal, Dumas asserts that his trial counsel was ineffective in failing to (1) request a curative instruction or a mistrial in response to the State’s improper questioning and argument regarding his post-arrest silence; (2) object to the State’s closing argument
In order to prevail on his claim of ineffective assistance, appellant must show both that counsel’s performance was deficient and that the deficiency prejudiced him such that there is a reasonable probability that, but for the deficiency, the outcome of his trial would have been different. Strickland v. Washington,466 U. S. 668 (III) (104 SCt 2052 , 80 LE2d 674) (1984).
Grant v. State,
1. Dumas first asserts that his trial counsel was ineffective in failing to request a curative instruction or mistrial after the prosecutor repeatedly and improperly questioned him on his post-arrest silence and improperly addressed the issue in closing argument.
Dumas testified in his own defense at trial and denied that he had ever inappropriately touched the victim. On appeal, he cites to six occasions during cross-examination when the State asked him whether he had ever before related the version of events to which he testified at trial. On each occasion, his trial counsel objected to the question.
The trial court sustained the first objection after the prosecutor asked, “Despite [the fact that he had a chance to review the evidence against him prior to trial], today is the very first time that you have opened your mouth to say anything about what happened?” The trial court then told Dumas that he “[did not] have to answer that question.” The prosecutor next asked, “In April of 2011, did you tell the police your version of the facts?” Dumas’ attorney again objected, and the trial judge held an off-the-record bench conference to discuss the matter. After the conference, the judge instructed the prosecutor that she could proceed “with those instructions,” but the instructions themselves are not in the record.
The prosecutor next asked, “Prior to today, have you made any statements alleging this version of the facts that you gave to the jury?” Dumas’ counsel again objected. The trial court overruled the objection and directed Dumas that he could answer. Dumas’ attorney also objected on the ground of relevance when the prosecutor repeated her question by asking whether Dumas had told his version of events to anybody, and the trial court again overruled the objection. Dumas testified that he had not really talked to anyone. And when the prosecutor asked Dumas whether he had ever made a statement “to any authorities” regarding his version of the facts, the trial court again overruled counsel’s objection and directed Dumas to answer. He replied in the negative.
Later, the State asked, “And Mr. Dumas, you’re saying that you never took it upon yourself being charged with rape . . . and child molestation, to ever attempt to provide the police with a statement of your version of the facts?” Dumas’ counsel objected, noting, “That’s not his responsibility, Your Honor.... And plus he has — he has rights against that.” The trial court sustained the objection, stating, “He has a right to remain silent.”
Dumas’ trial counsel did not ask for any curative instructions following this exchange, and at the hearing on the motion for new trial, he could not recall why he did not do so. He testified that he generally asks for a curative instruction when he feels like one is warranted, but he did not know why he did not ask for one in this case. However, on cross-examination at the hearing, he acknowledged that the trial court’s statement that Dumas had the right to remain silent was what he wanted the jury to know and understand.
Subsequently, in closing argument, after noting that the defense had emphasized that the police never asked Dumas for his version
“Georgia law is abundantly clear that arguments commenting on a defendant’s silence are impermissible.” (Citations omitted.) Cheeks v. State,
Here, Dumas’ attorney consistently objected to the State’s cross-examination questions regarding Dumas’ failure to tell the police his version of events, and the trial court sustained some of these objections but overruled others.
The State argues and the trial court found below that Dumas’ counsel opened the door to the prosecutor’s comment by stating in closing argument that the police did not even bother asking Dumas for his side of the story when he was arrested. We disagree.
Here, the State first injected the issue of Dumas’ silence into the case by repeatedly asking him, over defense objections, why he did not volunteer his denial to police or anyone else. After two of the defense objections were overruled, Dumas on cross-examination, testified that he had not told his story to anyone or to any authority. It was only on redirect that Dumas testified that the police had never asked for his side of the story. Dumas was entitled to rebut the State’s evidence regarding his silence, and thus his attorney’s comment upon this rebuttal evidence in his closing argument was within the range of proper argument. See Mikell v. State,
In contrast, the State’s comment was not based on evidence properly before the jury; rather, it was an impermissible comment in violation of Dumas’ right to silence after the trial court’s final ruling on the issue — that the State could not ask whether Dumas had failed to tell his story to the police upon being charged with the crimes. Although we consider this issue to be a close question, under these circumstances, where the State first injected the issue of Dumas’ silence into the case and repeatedly raised the issue over
Turning now to the second prong of the test, we must consider whether the prosecutor’s argument prejudiced the defendant. In Georgia, appellate courts must consider a number of factors “when determining whether the State’s unchallenged comments or questions about a defendant’s right to remain silent have prejudiced that defendant.” (Citation and punctuation omitted.) Cheeks,
These include whether the error was an isolated incident, or instead consisted of several questions or comments, and whether the error was inadvertent, rather than a deliberate attempt by the State to use the defendant’s silence against him. We also examine the “trial context” of the error, and take a particularly dim view of the State’s conduct in arguing during closing that evidence of the defendant’s silence should be viewed as evidence of his guilt. Finally, we analyze whether, in light of the evidence presented, there was a possibility that the State’s improper comments contributed to the guilty verdict. In other words, we examine whether the evidence of the defendant’s guilt was overwhelming or whether the evidence was conflicting.
(Citation omitted.) Shaburov v. State,
Here, the prosecutor’s clear intent was to persuade the jury to weigh Dumas’ post-arrest silence against him. She repeatedly questioned Dumas on this issue in cross-examination, even returning to the issue to ask again whether he told his story to police after the trial court had sustained his counsel’s objection to a similar question. Then in her closing argument, the prosecutor underscored Dumas’ failure to proclaim his innocence to police as proof of his guilt. Thus, under these circumstances, the State’s violation of Dumas’ constitutional right to remain silent was neither incidental nor inadvertent. See Scott,
Moreover, the State’s evidence at trial, although sufficient to support his convictions, was not overwhelming. The victim waited approximately ten years to report the incidents involving Dumas, and there was no physical evidence of the crimes. The primary evidence was the victim’s description of events, supported by her family’s testimony as to changes in her behavior. Thus, the jury’s determination necessitated weighing the credibility of the victim’s testimony against Dumas’ credibility. Although jurors ultimately chose to believe the victim’s testimony, there is a reasonable probability that an improper inference of guilt, raised by Dumas’ failure to tell police his side of the story, influenced this decision. See Scott,
Accordingly, we find that Dumas has also established the second prong of the Strickland test, and he is entitled to a new trial.
2. In light of the foregoing, we need not address Dumas’ remaining arguments as to his ineffective assistance of counsel claim.
Judgment reversed.
Notes
Jackson v. Virginia,
The State presented expert testimony at trial to show that it is more common than not for a victim of childhood sexual abuse to delay reporting the incidents to others.
Although Dumas does not challenge the sufficiency of the evidence on appeal, we find that this and other evidence presented at trial was sufficient to allow the jury to find him guilty of rape and child molestation beyond a reasonable doubt. See OCGA § 16-6-Í (a) (2) (rape of female less than ten years old); OCGA § 16-6-4 (a) (1) (child molestation).
Dumas does not assert the overruled objections as error on appeal.