DANA LAMAR NELSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dana Lamar Nelson appeals his second-degree murder conviction, arguing that the prosecutor violated his Fifth Amendment right to remain silent by commenting on his failure to make exculpatory statements before trial. The court affirms, holding that the prosecutor's remarks, viewed in context, were directed at Nelson's failure to talk to civilian witnesses rather than police, and thus did not constitute a comment on his constitutional right to silence.
The court held that the prosecutor did not violate Nelson's right to remain silent because his remarks, when viewed in context, were directed at Nelson's failure to speak to civilian patrons in the bar immediately after the shooting, not his failure to explain himself to police or remain silent generally. Accordingly, the remarks were not fairly susceptible of interpretation as a comment on a constitutional right.
[1] A prosecutor's comments on a defendant's silence are permissible when examined in context and not fairly susceptible of interpretation as a comment on the right to remain…
[2] Remarks that might appear improper when considered in a vacuum may be found permissible when examined in context.
Previewing 2 of 4 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 right to remain silent has historically received strict protection in our state.”
Establishes the foundational constitutional principle at stake in the case
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Join FLexlaw to unlock all legal intelligenceNelson, a bartender, shot and killed Alton Harden during a dispute over a toy pistol that Harden had sold to Nelson. Nelson gave no statements about t…
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OTT, Chief Judge.
Dana Lamar Nelson appeals his conviction for second degree murder, contending that the prosecutor violated his constitutional right to remain silent by commenting on his failure to make an exculpatory statement prior to trial. We disagree and affirm.
Nelson, employed as a bartender at the Manhattan Bar in St. Petersburg, shot and killed Alton Harden during a dispute arising out of the sale by Harden to Nelson of a toy pistol which Harden represented at the time of sale as being real. From the time of the shooting until his trial, Nelson gave no statements about the incident. At trial, he testified on direct, describing the shooting as accidental and partly motivated by self-defense.
The prosecutor cross-examined Nelson as follows:
PROSECUTOR: You told Mr. Eide ... on direct examination that you were going to leave the bar because no one would believe what your testimony was here today, is that correct?
APPELLANT: Yes, sir. PROSECUTOR: And is that the reason you told no one on the incident of the shooting, the night of the shooting, knowing full well that a man is dead, is that the reason you never say anything until you come to court today, because you don’t think anyone would believe ....
DEFENSE COUNSEL: I’m going to object and ask to approach the bench. [The following were in lowered tones at the bench.]
DEFENSE COUNSEL: I would object as being a comment, direct comment, on the defendant’s right to remain silent. He mentioned, “You didn’t tell anyone until you came in here today;” that’s a direct comment. I move for mistrial based on that.
PROSECUTOR: If you take it in context, I was talking about civilian witnesses, and that’s exactly what I meant. The right to talk to civilian witnesses is not a violation of any Miranda rights.
DEFENSE COUNSEL: The jury didn’t understand it that way, and what he meant and what was understood by the jury are two different things, your Hon-or. THE COURT: I will deny the motion for mistrial. I would suggest and direct the State to not pursue that particular question.
The right to remain silent has historically received strict protection in our state. Simpson v. State, No. 49,681 (Fla., filed April 8, 1982); Willinsky v. State, 360 So. 2d 760 (Fla.1978); Bennett v. State, 316 So. 2d 41 (Fla.1975); Simmons v. State, 139 Fla. 645, 190 So. 756 (1939). However, a prosecutor’s remarks must always be examined with an eye to the context in which they appear. State v. Jones, 204 So. 2d 515 (Fla.1967); Jackson v. State, 328 So. 2d 576 (Fla. 3d DCA 1976); Duval v. State, 190 So. 2d 613 (Fla. 3d DCA 1966). As the fifth circuit noted in United States v. Forrest, 620 F. 2d 446, 455-56 (5th Cir. 1980):
[Statements that might appear improper when considered in a vacuum may be found permissible when examined in context.
On direct examination, Nelson said he considered leaving the bar after the incident since he did not think anyone would believe his version of the shooting. The prosecutor’s remarks on cross-examination were directed not to Nelson’s failure to explain himself to police, but instead to his failure to talk to other civilian patrons in the bar immediately following the shooting. Viewed in this context, the prosecutor’s remarks were not fairly susceptible of interpretation by the jury as a comment on Nelson’s right to remain silent. David v. State, 369 So. 2d 943 (Fla.1979). Accordingly, the trial court did not err in denying the motion for mistrial and Nelson’s conviction and sentence is AFFIRMED.
GRIMES and CAMPBELL, JJ., concur.
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Miller v. State, 435 So. 2d 258 (Fla. 3d DCA 1983)…comment by the prosecution constitutes harmful error must be determined by a consideration of its effect when viewed in context with other circumstances appearing in the record. Coleman v. State, 420 So. 2d 354 (Fla. 5th DCA 1982); Nelson v. State, 416 So. 2d 899 (Fla. 2d DCA 1982); McMillian v. State, 409 So. 2d 197 (Fla. 3d DCA 1982). A synopsis of the applicable law concerning prosecutorial misconduct can be found in Breedlove v. State, 413 So. 2d 1 (Fla.), cert. denied, - U.S. -, 103 S.Ct. 184, 74 L.Ed.2…
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Stancle v. State, 854 So. 2d 228 (Fla. 4th DCA 2003)…cer Kelley planted the gun. See Mitchell v. State, 771 So. 2d 596, 597 (Fla. 3d DCA 2000). A prosecutor’s argument should be examined in the context in which it is made. McArthur v. State, 801 So. 2d 1037, 1040 (Fla. 5th DCA 2001); Nelson v. State, 416 So. 2d 899, 900 (Fla. 2d DCA 1982). This is particularly so where invited by the nature of the defense. See State v. Shepevd, 479 So. 2d 106, 107 (Fla.1985); Austin v. State, 700 So. 2d 1233, 1234 (Fla. 4th DCA 1997); Whitfield v. State, 479 So. 2d 208, 216 (F…
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Wolack v. State, 464 So. 2d 587 (Fla. 4th DCA 1985)…er supplemental brief and we hold that the prosecutor’s comment in opening statement about the absence of a missing person’s report did not constitute an improper comment on the appellant’s constitutional right to remain silent. Cf. Nelson v. State, 416 So. 2d 899 (Fla. 2d DCA 1982). ANSTEAD, C.J., DELL, J., and GEIGER, DWIGHT L., Associate Judge, concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jones, 204 So. 2d 515 (Fla. 1967)
- Bennett v. State, 316 So. 2d 41 (Fla. 1975)
- United States v. Forrest, 620 F.2d 446 (5th Cir. 1980)
- David v. State, 369 So. 2d 943 (Fla. 1979)
- Simmons v. State, 139 Fla. 645 (Fla. 1939)
- Willinsky v. State, 360 So. 2d 760 (Fla. 1978)
- Duval v. State, 190 So. 2d 613 (Fla. 3d DCA 1966)
- Jackson v. State, 328 So. 2d 576 (Fla. 3d DCA 1976)