Cheeks v. State

325 Ga.App. 367

750 S.E.2d 753

CHEEKS

v.The STATE.

No. A13A1527.

Court of Appeals of Georgia.

Nov. 13, 2013.

Reconsideration Denied Dec. 10, 2013.

Thomas Sterling Robinson III, for Appellant.

Paul L. Howard Jr., Dist. Atty., Paige Reese Whitaker, Arthur Conley Walton, Asst. Dist. Attys., for Appellee.

BOGGS, Judge.

Dontavius Cheeks was convicted of rape and false imprisonment. His amended motion for new trial was denied, and he appeals. He asserts as his sole enumeration of error the ineffective assistance of trial counsel in failing to object to argument by the State regarding Cheeks' silence and failure to come forward to police. We agree with the trial court that counsel was ineffective in failing to object to this testimony, but disagree with the trial court's conclusion that counsel's deficient performance did not affect the outcome of the trial. We therefore reverse.

To demonstrate deficient representation, a convicted criminal defendant must show that counsel's representation fell below an objective standard of reasonableness. Such a defendant must overcome the strong presumption that counsel's performance fell within a wide range of reasonable professional conduct and that counsel's decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the circumstances of the case.

(Citations, punctuation, and footnote omitted.) Greene v. State, 295 Ga.App. 803, 805, 673 S.E.2d 292 (2009). At Cheeks' trial, the State argued during its opening statement that Cheeks refused to talk to investigating officers. The prosecutor then called Cheeks' mother as a witness and questioned her extensively regarding Cheeks' failure to turn himself in. And during its closing, the State again contended, repeatedly, that Cheeks refused to speak with and "evade[d]" the police and that he did so because he was guilty: "You didn't do anything wrong? Go down and talk to the police. Tell them what happened."

At the hearing on Cheeks' motion for new trial, counsel testified that she was "extremely nervous" because it was her first trial as lead counsel and her first appearance in the trial judge's courtroom. She "didn't object to those comments. But it wasn't because of any strategic reason. I remember thinking about it.... Honestly, I just let my nerves get the better of me."

Georgia law is abundantly clear that arguments commenting on a defendant's silence are impermissible. Reynolds v. State, 285 Ga. 70, 71, 673 S.E.2d 854 (2009) ; Scott v. State, 305 Ga.App. 710, 716(2)(a), 700 S.E.2d 694 (2010) ; Johnson v. State, 293 Ga.App. 728, 730, 667 S.E.2d 637 (2008). And "at the motion for new trial hearing, [Cheeks'] trial counsel testified that she was unable to explain why she had not objected to the testimony, but confirmed that her failure to do so did not arise from a strategical decision. It follows that trial counsel's performance in this regard was deficient." (Citations omitted.) Arellano v. State, 304 Ga.App. 838, 841, 698 S.E.2d 362 (2010).

The trial court found, based on the evidence presented at trial, that there was strong evidence of Cheeks' guilt and "there is not a reasonable probability that defense counsel's failure to object to the State's comments had any effect on the jury's verdict." But

[w]hen determining whether the State's unchallenged comments or questions about a defendant's right to remain silent have prejudiced that defendant, we consider a number of factors. 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.

(Citations omitted.) Scott, supra, 305 Ga.App. at 717(2)(a), 700 S.E.2d 694.¹

Here, the State's use of Cheeks' silence was egregious and pervasive: not only did the prosecutor aggressively question Cheeks' mother regarding his failure to turn himself in to the police, the prosecutor repeatedly and explicitly argued during opening and closing that Cheeks' silence was evidence of guilt. The victim contended that she was raped, but Cheeks contended that the intercourse was consensual. There were no other witnesses to the encounter and no physical evidence establishing force. The State produced evidence of outcry, and testimony that the 18–year–old victim was a lesbian and uninterested in boys. The State also presented similar transaction evidence in testimony from Cheeks' former girlfriend that he had raped her approximately two years after their relationship ended; apparently Cheeks was never prosecuted.

The outcome of the trial depended on whether or not the jury found the intercourse to be consensual. There were no eyewitnesses and no physical evidence

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