Failure To Object To Improper Argument Was Ineffective Assistance Of Counsel

The South Carolina Supreme Court granted a new trial to a defendant based on the failure of her trial counsel to object to the improper closing arguments of the prosecutor (called a Solicitor) in a criminal sexual conduct case that depended entirely on credibility.

The victim’s story

According to Victim, on that August night, he went to Tappeiner’s house with his sister and a neighbor to watch movies with Tappeiner, her husband, and their two daughters while his parents were out of town. Tappeiner and her husband were drinking alcohol during the movies, although neither was noticeably intoxicated. By the end of the last movie, all of the children except Victim had fallen asleep in front of the television, and Tappeiner’s husband had gone upstairs to bed. Tappeiner briefly left the room where the children lay sleeping, then reentered and began fondling Victim’s penis. When he resisted, Tappeiner pulled Victim upstairs into her daughter’s bedroom, where she forced him to perform oral sex on her, as well as engage in vaginal intercourse. Although Victim stated he screamed for help, apparently no one heard him or woke up. Eventually, Victim was able to escape and return home.

The court

Here, we find trial counsel’s closing argument did not invite the solicitor to repeatedly assert that the State’s witnesses all believed Victim’s version of events after their “face to face, eye to eye” interviews with him. Rather, trial counsel’s presentation pointed out inconsistencies in the stories, which could do no more than invite the solicitor to point out the contradictory aspects of Victim’s story and the other witnesses’ testimony.

Moreover, some of the solicitor’s statements regarding Victim’s credibility were not only damaging to Tappeiner, but misrepresented the evidence adduced at trial, such as the solicitor’s statement that the rape crisis counselor personally interviewed Victim, and that she is someone “who can detect when someone is making something up or if there is nothing there.” The rape crisis counselor never testified in front of the jury that she interviewed Victim herself…

Further, the solicitor’s remarks regarding whether the jurors would want Tappeiner babysitting their children or relatives improperly appealed to the jurors’ emotions, rather than the evidence in the record…

Here, as the parties freely admitted during trial, the case was entirely dependent on a credibility determination between the prosecution’s witnesses and the defense’s witness. Given the dearth of evidence beyond Victim’s assertions, we cannot say evidence of Tappeiner’s guilt was overwhelming. Therefore, we find that but-for the improper vouching for Victim’s credibility, there is a reasonable likelihood the outcome of the trial would have been different, and Tappeiner was thus prejudiced by trial counsel’s failure to object.

(Mike Frisch)