DERECK CUNNINGHAM, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Dereck Cunningham appeals his conviction for burglary of a structure. The Florida District Court of Appeal reverses and remands for a new trial, finding that the prosecutor improperly commented on the defendant's right to remain silent during closing argument and that the trial court failed to instruct the jury on maximum and minimum sentences as required by law.
The court held that the prosecutor's comment was reversible error because it was susceptible to interpretation as referring to the defendant's failure to testify, which violates the defendant's right to remain silent and cannot be cured by cautionary instructions. The court also held that the trial court's failure to provide mandatory jury instructions on maximum and minimum sentences, which were requested by the defendant, constitutes independent grounds for reversal.
[1] A prosecutor's comment on a defendant's failure to testify constitutes reversible error.
[2] A prosecutor's comment on the uncontradicted nature of evidence, which is susceptible of being interpreted as a comment on the defendant's silence, is reversible error.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The prosecutor's comment is clearly susceptible of being interpreted by the jury as referring to a criminal defendant's failure to testify and as such constitutes reversible error.”
Establishes that the prosecutor's comment violated the defendant's right to remain silent and constitutes reversible error.
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Join FLexlaw to unlock all legal intelligenceCunningham was charged with burglary of a structure. During the prosecutor's closing argument, the prosecutor commented on a fingerprint found inside …
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FERGUSON, Judge.
Dereck Cunningham appeals from an adjudication of guilt and sentencing on the charge of burglary of a structure. We reverse on two grounds.
First, we find the prosecutor committed reversible error by commenting on the defendant’s right to remain silent. In his closing argument, the prosecutor stated:
That raises two questions: The position that the fingerprint, was found inside the door — keep that in mind — approximately the middle of the door in the inside portion. That is very important, how that left hand, little finger got in there. That has not been explained in this case and I think that counsel owes you an explanation for that.
This statement went beyond mere comment on the uncontradicted testimony of witnesses. See, e. g., White v. State, 377 So. 2d 1149 (Fla.1979).
Defense counsel immediately objected and moved for a mistrial. The motion was denied, but the issue preserved for appeal. The prosecutor’s comment is clearly susceptible of being interpreted by the jury as referring to a criminal defendant’s failure to testify and as such constitutes reversible error. David v. State, 369 So. 2d 943 (Fla.1979); Trafficante v. State, 92 So. 2d 811 (Fla.1957).
This error cannot be cured by cautionary instructions to the trial jury and is not subject to the harmless error rule. Clark v. State, 363 So. 2d 331 (Fla.1978); Willinsky v. State, 360 So. 2d 760 (Fla.1978); Shannon v. State, 335 So. 2d 5 (Fla.1976); Bennett v. State, 316 So. 2d 41 (Fla.1975); Peterson v. State, 405 So. 2d 997 (Fla. 3d DCA 1981); Watkins v. State, 363 So. 2d 575 (Fla. 3d DCA 1978); Martin v. State, 356 So. 2d 320 (Fla. 3d DCA 1977); Thomas v. State, 342 So. 2d 991 (Fla. 3d DCA 1977), cert. denied, 353 So. 2d 679 (Fla.1977); Smith v. State, 342 So. 2d 990 (Fla. 3d DCA 1977); Fla.R. Crim.P. 3.250.
We find a second and independent grounds .for reversal in the failure to instruct the jury on the maximum and minimum sentences. In Tascano v. State, 393 So. 2d 540 (Fla.1980), the Supreme Court held that the language of Florida Rule of Criminal Procedure 3.390(a) makes mandatory upon request of either the state or the defendant, the giving of an instruction on the maximum and minimum sentences which may be imposed for the offense for which the accused is on trial. Here no instruction on any sentences was given.
The record indicates that at the charge conference, Cunningham requested that the jury be instructed as to penalties and that, after the jury was instructed and before it retired to consider its verdict, Cunningham objected to the Court’s refusal to give the penalty charges. We believe this is sufficient to preserve the point on appeal. See Williams v. State, 399 So. 2d 999 (Fla. 3d DCA 1981).
See also footnote 1 of Williams, supra, stating that “[p]ost-Tascano decisions have uniformly applied the Tasca-no ruling to defendants whose trials were concluded before the date of the Tascano decision, June 5, 1980, and whose appeals were then pending or taken thereafter”. Id. at 1000.
We do not deem the lack of transcript at that part of the charge conference which discussed the request for the penalty instructions to be of any consequence. Cunningham’s objection and times of objection are clearly recorded and made part of the record.
The jury was instructed on lesser included offenses; the jury was not instructed on any penalties whatsoever. Defendant clearly requested specific jury instructions on penalties and was denied these instructions. Under the circumstances of this case, we find the issue preserved for appeal.
We do not discuss the merits of appellant’s third point on appeal.
Reversed and remanded for new trial.
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Beckman v. State, 230 So. 3d 77 (Fla. 3d DCA 2017)…is you haven't heard it in this trial.”); Marshall, 476 So. 2d at 151 (“Ladies and gentlemen, the only person you. heard from in . this courtroom with regard to the events of November 9, 1981, was Brenda Scavone [the victim].”); Cunningham v. State, 404 So. 2d 759, 759 (Fla. 3d DCA 1981) (“That.has not been explained in this case” and “I think counsel owes you an explanation for that.”). Moreover, as the trial court found here in denying the motion for mistrial, “[the defendant] is not the only one who can te…
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Merrill Jackson v. State, 453 So. 2d 456 (Fla. 4th DCA 1984)…State, 418 So. 2d 984 (Fla.1982). We further hold that the remarks constituted prejudicial error and that a mistrial should have been granted upon authority of Simpson, supra; Ramos v. State, 413 So. 2d 1302 (Fla. 3d DCA 1982); Cunningham v. State, 404 So. 2d 759 (Fla. 3d DCA 1981). In Donovan v. State, 417 So. 2d 674 (Fla. 1982), Shannon v. State, 335 So. 2d 5 (Fla. 1976), and Bennett v. State, 316 So. 2d 41 (Fla.1975), it was held that a reversal per se was required when the State commented on the right o…
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Sarai Ramos v. State, 413 So. 2d 1302 (Fla. 3d DCA 1982)…ing to her failure to testify. See David v. State, 369 So. 2d 943 (Fla.1979). As such, the comment constituted reversible error, not curable by cautionary instructions or resort to the harmless error rule. Clark v. State, supra; Cunningham v. State, 404 So. 2d 759 (Fla.3d DCA 1981), and cases cited. Accordingly, this otherwise valid conviction must be reversed as a result of prosecutorial zeal. For the reasons previously expressed, we hold that defendant’s objection was preserved for review, and that the imp…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Shannon v. State, 335 So. 2d 5 (Fla. 1976)
- Tascano v. State, 393 So. 2d 540 (Fla. 1980)
- Bennett v. State, 316 So. 2d 41 (Fla. 1975)
- Russ v. State, 92 So. 2d 811 (Fla. 1957)
- White v. State, 377 So. 2d 1149 (Fla. 1979)
- David v. State, 369 So. 2d 943 (Fla. 1979)
- Willinsky v. State, 360 So. 2d 760 (Fla. 1978)
- Williams v. State, 399 So. 2d 999 (Fla. 3d DCA 1981)
- High v. Bradley, 405 So. 2d 997 (Fla. 3d DCA 1981)