Case law update week October 12, 2012
Doyle v. State, S12A1036 (10/15/12) – Case provides a good reminder that if your client testifies, be careful not to ask questions explaining why the client did not contact the police or talk to anyone about the incident prior to his testimony. Prosecutor on cross and closing essentially commented on D’s silence or failure to come forward. Supreme Court held that was proper since D opened the door on direct.
Powell v. State, S12A1311 (10/15/12) – Prosecutor during closing stated: “If we think it’s a bad arrest, if we think there’s not enough evidence, what hap- pens to that case? It goes. We don’t bring it to indictment if we think the person is innocent, if there is not enough evidence.” Defense did not object. SC holds that although improper it does not rise to IAC level.
Owens v. State, A12A0881 (10/9/12) – Conviction reversed on IAC grounds when defense counsel failed to object to improper opinion testimony as to the identity of the perpetrator (witnesses testified that person on video surveillance was D). “It is well established in our case law that it is improper to allow a witness to “testify as to the identity of a person in a video or photograph when such opinion evidence tends only to establish a fact which average jurors could decide thinking for themselves and drawing their own conclusions”.