SARAI RAMOS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Sarai Ramos was convicted of two counts of second degree murder and firearm offenses. The Florida appellate court reversed her convictions because the prosecutor improperly commented during voir dire on the defendant's right to remain silent in a manner that invited the jury to draw an adverse inference from her failure to testify.
The prosecutor's comments constituted reversible error that entitles the defendant to a new trial. A contemporaneous objection to improper comments on silence, when overruled, is sufficient to preserve the issue for appellate review without requiring a motion for mistrial, which would be a futile gesture. The improper comment is not subject to harmless error analysis or curative instructions.
[1] A prosecutor's comment during voir dire, which refers to a defendant's right to remain silent and the Fifth Amendment, can be interpreted by the jury as a comment on the…
[2] An objection to an improper comment on a defendant's silence is preserved for appellate review if the objection is contemporaneous and overruled, making a subsequent moti…
Previewing 2 of 3 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“Defense counsel also indicated to you during voir dire examination certain things about the law, as he referred to, I believe, related to somebody's right not to say anything, talking about the Fifth Amendment of the United States Constitution, which says no person can be compelled to be a witness against themselves. In other words, you have an absolute right to remain silent. You can take the Fifth any time you want to. You need not testify in any court of law if testifying might incriminate you. . . . [I]s it clear to everybody here that the decision as to whether or not to testify or to speak before you is a decision not made by the Office of the State Attorney or by Miss Kaghan or myself, but it is a decision totally up to the Defendant, who can, if she wants to, get up and speak, because she has a right to—”
The prosecutor's improper comments during voir dire that were found to constitute reversible error
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDuring voir dire, the prosecutor made statements to the jury about the defendant's Fifth Amendment right to remain silent and her option not to testif…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Prosecutorial Comment On Silence cases and more on FLexlaw
HENDRY, Judge.
Sarai Ramos appeals her convictions and sentences for two counts of second degree murder, carrying a concealed firearm and possession of a firearm in commission of a felony, alleging reversible error as a result of the prosecutor’s improper comment on her right to remain silent. We agree and reverse.
During voir dire, the prosecutor stated to the jury:
Defense counsel also indicated to you during voir dire examination certain things about the law, as he referred to, I believe, related to somebody's right not to say anything, talking about the Fifth Amendment of the United States Constitution, which says no person can be compelled to be a witness against themselves. In other words, you have an absolute right to remain silent. You can take the Fifth any time you want to. You need not testify in any court of law if testifying might incriminate you. . . . [I]s it clear to everybody here that the decision as to whether or not to testify or to speak before you is a decision not made by the Office of the State Attorney or by Miss Kaghan or myself, but it is a decision totally up to the Defendant, who can, if she wants to, get up and speak, because she has a right to—
Defense counsel immediately objected on the ground that this was an improper comment on defendant’s silence. The objection was overruled and the case proceeded to trial.
Citing Clark v. State, 363 So. 2d 331 (Fla.1978), the state contends that defendant waived the objection by failing to move for a mistrial after her objection was overruled. However, defendant has pointed out that the supreme court recently receded from the strictures of Clark, holding that improper comment on silence is preserved for appellate review by a contemporaneous objection alone if the objection is overruled. Where the objection is overruled, a motion for mistrial is a futile gesture which is unnecessary to preserve the error. Simpson v. State, (Fla.1982) (Case No. 49,681, opinion filed April 8,1982).
The prosecution’s comment, implying that defendant’s testimony might have incriminated her, when considered in light of the fact that she did not take the stand, was clearly amenable to interpretation by the jury as referring 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 improper comment constitutes reversible error entitling her to a new trial.
The judgments and sentences are reversed and remanded for the purpose of granting a new trial.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Merrill Jackson v. State, 453 So. 2d 456 (Fla. 4th DCA 1984)…sufficiently preserved this matter for appeal. Simpson v. 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…
-
Johnson v. Canteen Corp., 528 So. 2d 1364 (Fla. 3d DCA 1988)…y was overruled, Johnson was not required to seek additional forms of relief in order to preserve the matter for appeal. Simpson v. State, 418 So. 2d 984 (Fla.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1004 (1983); Ramos v. State, 413 So. 2d 1302 (Fla. 3d DCA 1982). However, we disagree with Johnson that these allusions to compensation benefits compromised her right to a fair trial. While prejudicial error may arise from presenting the jury with information as to an injured plaintiff’s rece…
-
Layton v. State, 435 So. 2d 883 (Fla. 3d DCA 1983)…unquestionably harmless, is reversible error without resort to the harmless error doctrine where, as here, the error is preserved by a timely overruled objection,1 David v. State, 369 So. 2d 943; Trafficante v. State, 92 So. 2d 811; Ramos v. State, 413 So. 2d 1302 (Fla. 3d DCA 1982); Cunningham v. State, 404 So. 2d 759 (Fla. 3d DCA 1981), we reverse and remand for a new trial. For the benefit of the trial judge assigned to retry this case, we note that we have examined appellant’s other points on appeal and…1 / 2
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- David v. State, 369 So. 2d 943 (Fla. 1979)
- Dereck Cunningham v. State, 404 So. 2d 759 (Fla. 3d DCA 1981)