JOHNNY DIAMOND HELTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnny Diamond Helton appealed his conviction for two counts of unlawful possession of a controlled substance, challenging the chain of custody for evidence and prosecutorial comments during closing argument. The Florida District Court of Appeal, First District affirmed the conviction, finding no reversible error in either the admission of evidence or the prosecutor's remarks.
The court held that the admission of evidence was proper despite the imprecise chain of custody because there was no indication the evidence was tampered with or altered. The court also held that the prosecutor's comments did not impermissibly infringe upon the defendant's right against self-incrimination because the remarks were directed to the obvious predictability of a defendant not testifying for the state, not to his failure to testify in his own defense.
[1] A chain of custody for demonstrative evidence need not be perfectly precise to be admissible, so long as there is no indication of tampering or alteration.
[2] A prosecutor's comment during closing argument is permissible if it refers to a general lack of defense evidence, rather than the defendant's failure to testify.
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Join FLexlaw to unlock all legal intelligence“while the chain of custody shown was somewhat imprecise, there is no indication that the evidence was tampered with or otherwise altered and it was therefore not error to admit the exhibits into evidence”
Establishes the standard for admission of evidence with imprecise chain of custody—absence of tampering or alteration is determinative
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of two counts of unlawful possession of a controlled substance. The state's evidence involved a discrepancy regarding the iden…
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WENTWORTH, Judge.
Appellant seeks review of an order whereby he was convicted and sentenced for two counts of unlawful possession of a controlled substance. We find that appellant has failed to present any point of reversible error, and we therefore affirm the order appealed.
Appellant contends that the state failed to establish a proper “chain of custody” as a predicate for the admission of demonstrative evidence. However, while the chain of custody shown was somewhat imprecise,1 there is no indication that the evidence was tampered with or otherwise altered and it was therefore not error to admit the exhibits into evidence. See Robinson v. State, 325 So. 2d 427 (Fla. 1st DCA 1976); also see Stevens v. State, 245 So. 2d 92 (Fla. 1st DCA 1971). We also note that defense counsel did not pursue any cross examination on this issue or otherwise explore the discrepancy in the state’s evidence.
Appellant also contends that prosecutorial comment during closing argument infringed appellant’s constitutional protection against self-incrimination, thereby requiring a new trial. Comment upon the defendant’s failure to testify is of course improper. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), reh. denied 381 U.S. 957, 85 S.Ct. 1797, 14 L.Ed.2d 730. However, prosecutorial comment upon a general lack of defense evidence is permissible. See Smiley v. State, 395 So. 2d 235 (Fla. 1st DCA 1981); also see Crook v. State, 391 So. 2d 362 (Fla. 1st DCA 1980). We find that the comment in the present case, by way of reply to defense counsel’s closing argument,2 does not impermissibly infringe upon appellant’s right against self-incrimination.
Accordingly, the order appealed is affirmed.
McCORD and BOOTH, JJ., concur. . The state’s evidence involved a discrepancy regarding the identifying number of the locker in which the evidence was placed and subsequently retrieved.
. During closing argument defense counsel noted that only an undercover police officer had testified and that the state had not submitted any testimony from other persons who were present during an alleged drug transaction involving appellant. The prosecutor replied during his closing argument by indicating that one of the persons who was present is a friend of appellant and would not testify, and the prosecutor further stated that “Johnny Helton [the appellant], is he going to be here to testify for the state? Certainly not.” The remark, in context, is not directed to the defendant’s silence but only to the obvious predictability of a defendant not testifying for the state. See David v. State, 369 So. 2d 943 (Fla.1979), as to inapplicability of the harmless error doctrine when a comment is fairly susceptible of being regarded by the jury as a reference to defendant’s failure to testify.
While we have determined that such a comment, in the circumstances of this case, does not require a new trial, we note that such remarks are ill-advised and we do not condone the choice of that prosecutorial argument.
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Snowden v. State, 449 So. 2d 332 (Fla. 5th DCA 1984)…ot appear- to us to be a comment on defendant’s silence, but a comment on the evidence. A prosecutor may comment on the general lack of defense evidence, and such comment is not improper. White v. State, 377 So. 2d 1149 (Fla. 1979); Helton v. State, 424 So. 2d 137 (Fla. 1st DCA 1982), pet. rev. denied, 433 So. 2d 519 (Fla.1983); also see, Smith v. State, 378 So. 2d 313 (Fla. 5th DCA 1980). Here, the State had opening and closing final arguments to the jury, and the comment complained of was made during the St…
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Green v. State, 571 So. 2d 571 (Fla. 3d DCA 1990)…ng closing argument constituted proper rebuttal to defense counsel’s own closing remarks. Bertolotti v. State, 476 So. 2d 130 (Fla.1985); Dufour v. State, 495 So. 2d 154 (Fla.1986); Rosso v. State, 505 So. 2d 611 (Fla. 3d DCA 1987); Helton v. State, 424 So. 2d 137 (Fla. 1st DCA 1982). The comments did not violate the defendant’s right to a fair trial by commenting upon his right to remain silent. Defense counsel cannot invite the comments and then complain that the comments were made. Additionally, the State…
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Armbruster v. State, 453 So. 2d 833 (Fla. 4th DCA 1984)…because the defendants objected on chain of custody grounds to the admission of the four bales into evidence, but it is without merit because the defendants made no showing of any tampering. Peek v. State, 395 So. 2d 492 (Fla.1981); Helton v. State, 424 So. 2d 137 (Fla. 1st DCA 1982); Beck v. State, 405 So. 2d 1365 (Fla. 4th DCA 1981). See, too, United States v. Kubiak, 704 F. 2d 1545 (11th Cir.1983) (failure to establish a chain of custody of a marijuana sample affects only the weight of the evidence, not th…
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
- Griffin v. California, 380 U.S. 609 (U.S. 1965)
- David v. State, 369 So. 2d 943 (Fla. 1979)
- Smiley v. State, 395 So. 2d 235 (Fla. 1st DCA 1981)
- Associated Food Retailers of Greater Chicago, Inc. v. Jewel Tea Co., Inc., 381 U.S. 761 (U.S. 1965)
- Stevens v. State, 245 So. 2d 92 (Fla. 1st DCA 1971)
- Brady v. Ohio, 381 U.S. 957 (U.S. 1965)
- Lawson v. United States, 381 U.S. 957 (U.S. 1965)
- Robinson v. State, 325 So. 2d 427 (Fla. 1st DCA 1976)
- Cook v. State, 391 So. 2d 362 (Fla. 1st DCA 1980)