GA Court of Appeals Reverses Rape Conviction Due to Comment on Defendant’s Silence

The Court held that defense counsel’s failure to object to the State’s improper comment on the defendant’s pre-arrest silence warranted a new trial.

Lawrence B. Moore, Jr. was convicted of raping one of his neighbor’s friends. The victim, J.S., claimed she was asleep on the neighbor’s couch when she awoke to find Moore having sex with her without her consent. According to Moore, the two had a consensual sexual relationship and the sex on the night in question was also consensual.

After the incident, J.S. told the neighbor that Moore had raped her. J.S. also underwent a rape examination where the nurse found no visible signs of trauma.

At trial, the State called Detective Ben Ervin to testify about a pre-arrest conversation he had with Moore. Ervin stated that he called Moore and told him that he was a suspect in a rape investigation. Ervin told Moore that he needed to speak with him about the allegations. Ervin testified that Moore refused to speak with him at that time. Moore informed the detective that they could talk about the incident later in the week. During closing arguments, the prosecutor faulted Moore for not choosing to relay his side of the story to the detective when he was first contacted. The prosecutor told jurors Moore refused to speak to law enforcement because he didn’t know what to tell them and wanted to wait until he had all the facts before he “fabricated this story to fit.”

The trial judge held that the defense attorney’s failure to object to the prosecutor’s comments constituted ineffective assistance of counsel and granted Moore’s motion for new trial. The State appealed, and the Georgia Court of Appeals affirmed.

Under Strickland v. Washington, to succeed on an ineffective assistance of counsel claim, the defendant must prove both that his counsel performed deficiently and that the deficient performance resulted in actual prejudice to his case. The appropriate standard for deficient performance is what a reasonable lawyer would have done under the circumstances. To establish prejudice, the defendant is required to show there is a reasonable probability that but for his counsel’s errors, the result of the trial would have been different.

At the motion for new trial, Moore’s defense attorney conceded that his failure to object was not strategic but simply a result of ignorance of Georgia law that prohibits the State from commenting on a defendant’s pre-arrest silence or failure to come forward. A defendant in Georgia has a constitutional right to remain silent and the State may not comment on a defendant’s silence at any time during the trial.

The Court explained that Moore’s conviction depended on whether the jury determined the intercourse was consensual. As there were no eyewitnesses or physical evidence in the case, Moore’s credibility was vital to the jury’s verdict. Considering that the evidence against Moore was far from overwhelming, the Court concluded that there was a reasonable probability that the improper comment could have affected the outcome of the trial.