JACK DAVID, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court reversed a grand larceny conviction where the prosecutor made comments in closing argument that were fairly susceptible to being interpreted as referring to the defendant's failure to testify, a serious constitutional violation under Griffin v. California.
The prosecutor's comments were fairly susceptible of being interpreted as referring to the defendant's failure to testify and thus constituted reversible error without resort to harmless error analysis. The Supreme Court has jurisdiction to review the conflicting District Court decisions under the 1972 constitutional amendment, which eliminated the requirement that conflicts arise between different District Courts of Appeal.
[1] A prosecutor's comment is reversible error if it is fairly susceptible of being interpreted by the jury as referring to the defendant's failure to testify.
[2] A prosecutor's direct reference to a defendant's silence constitutes reversible error.
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Join FLexlaw to unlock all legal intelligence“A prosecutor's comment on defendant's failure to testify is a serious constitutional violation.”
Establishes the fundamental constitutional principle that comments on defendant silence are serious violations.
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Join FLexlaw to unlock all legal intelligenceJack David was convicted of grand larceny. During closing argument, the prosecutor stated: 'If he had a business failure, why didn't he say anything a…
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ADKINS, Justice.
By Petition for Certiorari, we have for review a decision of the Fourth District Court of Appeal. David v. State, 348 So. 2d 420 (Fla. 4th DCA 1977), which allegedly conflicts with a prior decision of the District Court of Appeal. Childers v. State, 277 So. 2d 594 (Fla. 4th DCA, 1973) on the same point of law. Florida Constitution, Article V, Section 3(b)(3), provides that this court may review by certiorari any decision of a District Court of Appeal that is in direct conflict with a decision of “any District Court of Appeal.”
Prior to its amendment in 1972, the Constitution gave this court jurisdiction to review by certiorari any decision of a District Court of Appeal that was in direct conflict with a decision of “another District Court of Appeal.” Fla.Const. 1956, Article V, Section 4(2). Under the 1972 amendment the fact that the conflict arises between two decisions of the same District Court of Appeal does not prevent us from taking jurisdiction.
The petitioner, defendant below, was convicted of the crime of grand larceny. In his closing argument the prosecutor made the following remarks:
“Well, ladies and gentlemen, there was no evidence of business failure. That’s very important. You see, you can’t go outside the evidence. There is no evidence of business failure, you would have heard evidence, you would have heard from the accountants of the defendant’s business, his bookmaker, his records, bankruptcy proceedings. Where is that evidence? That’s why his business failure makes no sense in this case. If he had a business failure, why didn’t he say anything about the Jozefyks, about the Groves and about the Foxes?” (emphasis supplied)
Defense counsel immediately moved for a mistrial. The court denied the motion, being of the opinion that there was no direct reference to the defendant.
A prosecutor’s comment on defendant’s failure to testify is a serious constitutional violation. See, e. g., Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); cf. Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957).
Any comment which is “fairly susceptible” of being interpreted by the jury as referring to a criminal defendant’s failure to testify constitutes reversible error, without resort to the harmless error doctrine. E. g., Trafficante v. State, 92 So. 2d 811 (Fla.1957);
Kolsky v. State, 182 So. 2d 305 (Fla. 2d DCA 1966); Milton v. State, 127 So. 2d 460 (Fla. 2d DCA 1961); cf. King v. State, 143 So. 2d 458, 464-466 (Fla.1962) (Hobson, J., concurring).
Judge Mager in his dissent (David v. State, supra, at page 421) said:
“It appears to me that this court’s recent decision in Childers v. State, 277 So. 2d 594 (Fla. 4th DCA 1973), requires a reversal. Childers dealt with a far more nebulous reference to the defendant’s silence. This court, however, observed that if the prosecutorial comment:
‘is fairly susceptible of being interpreted by the jury as a statement to the effect that “an innocent man would attempt to explain the circumstances but the defendant offered no such explanation . . ” ’
“then the comment thus interpreted or construed violated the prohibition of the rule. What could be a clearer reference to the defendant’s silence than the prosecutor’s comment: ‘Why didn’t he [referring to the defendant] say anything about . ’ There is no need to resort to possible interpretations or constructions of the prosecutorial comment when there is such a direct reference to the defendant’s silence.”
This dissenting opinion may be resorted to in determining whether or not a conflict exists. Autrey v. Carroll, 240 So. 2d 474 (Fla.1970); Keller v. Keller, 308 So. 2d 106 (Fla.1974).
We have jurisdiction. The majority decision of the District Court of Appeal is quashed.
It is so ordered.
BOYD, SUNDBERG and HATCHETT, JJ., concur. ENGLAND, C. J., and OVERTON, J., dissent.
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Cited By (51 total)
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State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)…Florida, we have adopted a very liberal rule for determining whether a comment constitutes a comment on silence: any comment which is “fairly susceptible” of being interpreted as a comment on silence will be treated as such. Kinchen; David v. State, 369 So. 2d 943 (Fla.1979). One authority has said that “[cjomments or arguments which can be construed as relating to the defendant’s failure to testify are, obviously, of almost unlimited variety.”11 [*1136] The “fairly susceptible” test treats this variety of ar…
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State v. Marshall, 476 So. 2d 150 (Fla. 1985)…of the conviction. Id. at 22, 87 S.Ct. at 827. The courts of this state, however, have persisted in applying a per se reversal rule to comments on a defendant’s failure to testify, in spite of Florida’s harmless error statute. E.g., David v. State, 369 So. 2d 943 (Fla.1979). The United States Supreme Court recently revisited this area in United States v. Hasting. In Hasting the Court stated: “Since Chapman, the Court has consistently made clear that it is the duty of a reviewing court to consider the trial…
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Harris v. State, 438 So. 2d 787 (Fla. 1983)…the fifth amendment. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). We have recognized in Florida that such a comment requires the reversal of a conviction and that the harmless error rule does not apply. David v. State, 369 So. 2d 943 (Fla.1979); Trafficante v. State, 92 So. 2d 811 (Fla.1957). See also Fla.R.Crim.P. 3.250 (formerly § 918.09, Fla. Stat. (1969)). We find, however, that these principles are inapplicable to the circumstances of this case, and we reject the argument t…
Previewing 3 of 51 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Chapman v. California, 386 U.S. 18 (U.S. 1967)
- Griffin v. California, 380 U.S. 609 (U.S. 1965)
- Grunewald v. United States, 353 U.S. 391 (U.S. 1957)
- Russ v. State, 92 So. 2d 811 (Fla. 1957)
- Autrey v. Anne M. Carroll, 240 So. 2d 474 (Fla. 1970)
- Childers v. State, 277 So. 2d 594 (Fla. 4th DCA 1973)
- Chrlstal Clark Keller v. Keller, 308 So. 2d 106 (Fla. 1974)
- King v. State, 143 So. 2d 458 (Fla. 1962)
- Milton v. State, 127 So. 2d 460 (Fla. 2d DCA 1961)
- Kolsky v. State, 182 So. 2d 305 (Fla. 2d DCA 1966)