WILLIE LEE ELAM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Willie Lee Elam was convicted by jury of burglary of a dwelling and sentenced as a habitual offender. The court affirmed his conviction, holding that the prosecutor's closing argument comments on the uncontradicted evidence were permissible and did not constitute an impermissible comment on his right to remain silent.
The court held that the prosecutor's remarks were permissible comments on the evidence and did not constitute comments on appellant's right to remain silent. Prosecutors may comment on the uncontradicted or uncontroverted nature of evidence during closing argument to the jury.
[1] A prosecutor may properly comment on the uncontradicted or uncontroverted nature of the evidence during closing argument.
[2] Comments by a prosecutor referring to the absence of evidence on a certain issue are permissible and do not constitute an impermissible comment on a defendant's right to…
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Join FLexlaw to unlock all legal intelligence“It is proper for a prosecutor in closing argument to refer to the evidence as it exists before the jury and to point out that there is an absence of evidence on a certain issue.”
Establishes the foundational principle that prosecutors may comment on the evidence and its absence in closing argument
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn May 2, 1978, at 3:00 a.m., Betty and Earl Penson awoke to find an intruder in their home. Earl chased the intruder out while Betty checked on her c…
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ORFINGER, Judge.
Appellant was found guilty by a jury of the offense of burglary of a dwelling and was sentenced as an habitual offender. Betty and Earl Penson awoke at 3:00 a. m. on May 2, 1978, to find an intruder in their home. Earl chased him out of the house while Betty checked on her children. The police later that morning apprehended appellant who was identified by the Pen-sons as the intruder. Appellant also had possession of certain items stolen from the house.
Appellant did not testify at the trial. In summation, the prosecutor said:
The case evidence is consistent. It put the defendant right at the scene of the crime at the time it occurred. This is according to Earl Penson. But Earl Pen-son’s testimony is corroborated. That means it is supported by what police officers say. They caught the defendant there a very short time after the burglary occurred, wearing the same clothes that Earl said he had on and in possession of the stolen articles that she didn’t even know were stolen yet. She hadn’t even checked to find out the rings were stolen and the police officer already had them. This evidence is uncontradicted and unre-futed.
Appellant objected and moved for a mistrial, which was denied. He contends that this argument was an impermissible comment on his right to remain silent, citing Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229,14 L.Ed.2d 106, reh. den. 381 U.S. 957, 85 S.Ct. 1797, 14 L.Ed.2d 730 (1965), and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065, reh. den. 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967). We disagree and affirm.
The remarks by the prosecutor were permissible comments on the evidence and were not comments on appellant’s right to remain silent.
It is proper for a prosecutor in closing argument to refer to the evidence as it exists before the jury and to point out that there is an absence of evidence on a certain issue. State v. Jones, 204 So. 2d 515 (Fla.1967). See also State v. Mathis, 278 So. 2d 280 (Fla.1973). It is thus firmly embedded in the jurisprudence of this state that a prosecutor may comment on the uncontradicted or uncontroverted nature of the evidence during argument to the jury. See State v. Jones, supra, at 516-517; Clinton v. State, 56 Fla. 57, 47 So. 389 (1908); Gray v. State, 42 Fla. 174, 28 So. 53 (1900); Mabery v. State, 303 So. 2d 369 (Fla. 3d DCA 1974); Woodside v. State, 206 So. 2d 426 (Fla. 3d DCA 1968).
White v. State, 377 So. 2d 1149, 1150 (Fla. 1979).
This court has also held such argument proper in Smith v. State, 378 So. 2d 313 (Fla. 5th DCA 1980) wherein we said:
Indeed, if a prosecutor could not make fair comment on the fact that the State’s evidence of guilt was uncontroverted, what would be left for him to argue in a case where the defendant declined to testify?
Finding no error in the proceedings, the judgment and sentence are
AFFIRMED.
FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.
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Citator
Cited By
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Bell v. State, 413 So. 2d 1292 (Fla. 5th DCA 1982)…ermitted comment by prosecutors on the unre-butted nature of the testimony as not being a comment on defendant’s right to remain silent. See, e.g., White v. State, 377 So. 2d 1149 (Fla.1979); State v. Jones, 204 So. 2d 515 (Fla.1967); Elam v. State, 389 So. 2d 221 (Fla. 5th DCA 1980); Smith v. State, 378 So. 2d 313 (Fla. 5th DCA), aff'd, 394 So. 2d 407 (Fla.1980).…
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Kennedy v. State, 490 So. 2d 195 (Fla. 2d DCA 1986)…e closing argument was reasonably susceptible to interpretation by the jury as a comment on appellant’s failure to testify. An argument that the evidence is uncontradict-ed is not considered to be a comment on the defendant’s silence. Elam v. State, 389 So. 2d 221 (Fla. 5th DCA 1980). The statement that “we didn’t hear from him anymore” logically referred to appellant’s silence while he was in the car and his failure to say anything else after he got out of the car. Hence, the court did not err in denying app…
Authorities Cited (16 total)
- Chapman v. California, 386 U.S. 18 (U.S. 1967)
- Griffin v. California, 380 U.S. 609 (U.S. 1965)
- State v. Jones, 204 So. 2d 515 (Fla. 1967)
- White v. State, 377 So. 2d 1149 (Fla. 1979)
- Gray v. State, 42 Fla. 174 (Fla. 1900)
- Smith v. State, 378 So. 2d 313 (Fla. 5th DCA 1980)
- Buck Clinton and Edward Clinton v. State, 56 Fla. 57 (Fla. 1908)
- Seymour v. United States, 386 U.S. 987 (U.S. 1967)
- Woodside v. State, 206 So. 2d 426 (Fla. 3d DCA 1968)
- Montgomery v. McKendrick, 386 U.S. 987 (U.S. 1967)