WILLIE NATHANIEL BROWN, JR., APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Prosecutor's closing argument improperly referenced defendant's failure to testify, requiring reversal of second-degree murder conviction and remand for new trial where attempted second-degree murder instruction should be considered.
A prosecutor's closing argument statement susceptible of interpretation as referring to the defendant's failure to testify constitutes reversible error when timely objected to and a mistrial motion is preserved.
[1] A prosecutor's closing argument question susceptible of interpretation as referring to a defendant's failure to testify constitutes reversible error when timely objected…
[2] On remand, evidence supporting a theory that the defendant independently attempted to shoot the victim without complicity with a co-defendant entitles the defendant to a…
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Join FLexlaw to unlock all legal intelligence“Did you hear any testimony that Willie Brown told Lamar Cruse: 'Stop Lamar, we don't want to kill him, we just want to scare him'?”
Prosecutor's closing argument statement that was susceptible of interpretation as referring to defendant's failure to testify.
Willie Brown was convicted of second-degree murder. During closing argument, the prosecutor asked whether the jury heard testimony that Brown told a c…
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PER CURIAM.
The prosecutor’s closing argument statement, “Did you hear any testimony that Willie Brown told Lamar Cruse: ‘Stop Lamar, we don’t want to kill him, we just want to scare him’?” was, beyond any dispute, susceptible of being interpreted by the jury as referring to the appellant’s failure to testify and, the error having been pre served by timely objection and motion for mistrial, reversal of Brown’s conviction for second-degree murder is required. David v. State, 369 So. 2d 943 (Fla.1979); Trafficante v. State, 92 So. 2d 811 (Fla.1957); Cunningham v. State, 404 So. 2d 759 (Fla. 3d DCA 1981). Since this case is being remanded for a new trial, we note that the evidence in the record before us supports Brown’s theory that, independent of and not in complicity with any actions of a co-defendant, the defendant attempted to shoot the victim but was unsuccessful. If the evidence on retrial is substantially the same, the defendant would, in our view, be entitled to have the jury instructed on the lesser-included offense of attempted second-degree murder.1
Reversed and remanded.
. For the trial court’s further guidance, we point out that in the event that the defendant, a “child” at the time of the alleged violation, see § 39.01(7), Fla.Stat. (1981), is convicted upon retrial, an adult sentence may not be imposed except pursuant to the disposition procedures set forth in Section 39.111(6), Florida Statutes (1981).
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Cited By
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Brown v. State, 633 So. 2d 1175 (Fla. 3d DCA 1994)…, Willie Brown, when he was sixteen years old, was charged with, tried and convicted as an adult for second degree murder and unlawful possession of a firearm while engaged in a criminal offense. This court reversed his conviction in Brown v. State, 427 So. 2d 304 (Fla. 3d DCA), review denied, 438 So. 2d 834 (Fla.1983). Subsequently, appellant pleaded to a lesser offense of manslaughter with a firearm. This plea occurred eleven years ago and the trial court adjudicated appellant guilty of manslaughter and s…
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Andres v. State, 468 So. 2d 1084 (Fla. 3d DCA 1985)…83); Donovan v. State, 417 So. 2d 674 (Fla.1982); David v. State, 369 So. 2d 943 (Fla.1979); Trafficante v. State, 92 So. 2d 811 (Fla.1957); Roberts v. State, 443 So. 2d 192 (Fla. 3d DCA 1983), rev. denied, 450 So. 2d 489 (Fla.1984); Brown v. State, 427 So. 2d 304 (Fla. 3d DCA), rev. denied, 438 So. 2d 834 (Fla.1983). Because we do not find the evidence of the defendant’s guilt so overwhelming as to render harmless the prosecutor’s argument, we need not question whether the Supreme Court of Florida in State v…
Authorities Cited
- Russ v. State, 92 So. 2d 811 (Fla. 1957)
- David v. State, 369 So. 2d 943 (Fla. 1979)
- Dereck Cunningham v. State, 404 So. 2d 759 (Fla. 3d DCA 1981)