Conviction Affirmed Despite Comments on Pre-Arrest Silence

The defendant was charged with child molestation and enticing a child for indecent purposes in connection with alleged incidents involving his stepdaughter. After the allegations were made, several conversations ensued between the defendant, his wife and the pastor of their church. During these conversations, the defendant did not deny the abuse. The defendant’s wife called the police and the defendant attempted to flee.

At trial, this information was elicited during the prosecutor’s questioning of the defendant’s wife, the pastor and the pastor’s wife. All three witnesses testified about their conversations with the defendant in which he did not deny the allegations made against him.

On appeal, the defendant argued that his attorney provided ineffective assistance when she failed to object to this line of questioning as well as the prosecutor’s comments about it in closing argument. The defendant relied on Rush v. State, a 2014 case which reiterated that there is a bright-line rule in Georgia forbidding the State from commenting on a defendant’s pre-arrest silence or failure to come forward voluntarily.

However, the Court of Appeals found that the comments elicited at trial were not impermissible remarks about the defendant’s silence but rather were comments concerning his attempted flight. The Court noted that in Rush it was held that statements about a defendant’s flight are proper as circumstantial evidence of guilt.

The defendant also argued on appeal that the trial court abused its discretion by refusing to allow him to present evidence of a prior false allegation of molestation made by the girl’s mother. He argued that she had, in the past, threatened to falsely accuse another man of molestation. Assuming that this threat did, in fact, occur, the Court held that the defendant did not meet his burden of showing that there was a reasonable probability that the accusation was false.