Dumas v. State

337 Ga.App. 124

786 S.E.2d 508

DUMAS

v.The STATE.

No. A16A0053.

Court of Appeals of Georgia.

May 18, 2016.

Jimmonique R.S. Rodgers, Atlanta, Michael Wayne Tarleton, for Appellant.

Robert D. James Jr., Dist. Atty., Deborah D. Wellborn, Asst. Dist. Atty., for Appellee.

McMILLIAN, Judge.

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,¹ the evidence showed that for a four-month period between 1999 and 2000, the victim lived with her mother, sister, and Dumas, who was her mother's boyfriend at the time. On one occasion, when the victim was around seven years old and her mother was at work, the victim woke up with gum in her hair and went to Dumas for help. Dumas cut the gum out of her hair and told her to stop crying. He said he would make her feel better and took her into her mother's bedroom where he folded a sheet over her face, pulled down her pants, and put his penis on the outside of her vagina. The victim then felt a sharp pain and told Dumas it hurt, but he kept going. Dumas stopped when the victim's little sister came into the house from outside. When Dumas left the room, the victim went to the bathroom and discovered blood running down her leg. Afterward, on a number of occasions, when the victim's mother was at work and her sister was outside, Dumas touched the victim's vagina with his fingers and his penis.

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 seventeen and after she had begun therapy, she told her cousin, grandmother, and mother what had happened, and her mother contacted police.² The police obtained a warrant for Dumas at that time, but he was not arrested until 2011 when the outstanding warrant was discovered during a routine license plate check.³

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 asking the jury to rectify what it argued was a systemic problem with child sexual assault cases; (3) present evidence of the victim's history of sexual and physical abuse by others and in failing to oppose the State's motion in limine to exclude such evidence; and (4) challenge a juror who indicated that he had a bias against presuming Dumas to be innocent because the juror's own daughter had almost been raped.

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 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Grant v. State, 295 Ga. 126, 130(5), 757 S.E.2d 831 (2014). And “[i]n reviewing a claim of ineffective assistance, we give deference to the trial court's factual findings and credibility determinations unless clearly erroneous, but we review a trial court's legal conclusions de novo.” Id.

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 of events when he was arrested, the prosecutor stated, “You're getting picked up on a rape warrant. Scream it from the mountaintops, I didn't do it. But nothing.” Dumas' counsel did not raise any objection to this argument, and at the hearing on the motion for new trial, he could not recall why he did not object.

“Georgia law is abundantly clear that arguments commenting on a defendant's silence are impermissible.” (Citations omitted.) Cheeks v. State, 325 Ga.App. 367, 368, 750 S.E.2d 753 (2013). See Reynolds v. State, 285 Ga. 70, 71, 673 S.E.2d 854 (2009) ; Mallory v. State, 261 Ga. 625, 630(5), 409 S.E.2d 839 (1991), overruled on other grounds recognized in Clark v. State, 271 Ga. 6, 10(5), 515 S.E.2d 155 (1999) ; 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 “[d]efense counsel's failure to object to such comments amounts to deficient performance.” State v. Moore, 318 Ga.App. 118, 122(2), 733 S.E.2d 418 (2012). See also Thomas v. State, 284 Ga. 647, 649(3)(a), 670 S.E.2d 421 (2008) (where prosecutor's conduct violated rule against commenting on pre-arrest silence, “counsel's performance was deficient to the extent he did not object”); Lampley v. State, 284 Ga. 37, 38–39(2)(b), 663 S.E.2d 184 (2008) (same).

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.⁴ The trial court sustained counsel's final objection, explaining that Dumas had the right to remain silent. Thus, trial counsel's performance cannot be deemed deficient in failing to ask for a curative instruction after the trial court sustained his last objection. However, when the prosecutor again raised the issue in closing argument, Dumas' counsel failed to object, ask for a curative instruction, or move for a mistrial based on prosecutorial misconduct. Counsel offered no reason for these omissions at the hearing on the motion for new trial. Because no reasonable, strategic reason for trial counsel's failure to object appears in the record, we find that trial counsel's performance was deficient, and the first prong of the Strickland test is met. See Hines v. State, 277 Ga.App. 404, 408(2), 626 S.E.2d 601 (2006) (defense counsel's failure to object to improper comments on defendant's silence constituted deficient performance).

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,...