JULIUS HORACE DIXON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Dixon was convicted of trespass of an occupied structure. The Florida appellate court reversed and remanded for a new trial due to prosecutorial misconduct regarding burden of proof and improper admission of evidence concerning prior acts with the victim.
The prosecutor's statement that police officers 'could have and would have been called by the defendant' if they had evidence of innocence was improper because it may have led the jury to believe Dixon had the burden of proving his innocence. Additionally, the admission of evidence concerning twenty to fifty prior occasions when Dixon attempted to obtain money from the victim was improper character evidence because the prior acts (voluntary giving) differed substantially from the charged conduct (threatening with a gun).
[1] A prosecutor's comment suggesting the defendant had the burden of proving innocence is impermissible and warrants a new trial.
[2] Evidence of collateral crimes is inadmissible when introduced solely to highlight a defendant's bad character, particularly when the prior acts differ significantly from…
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Join FLexlaw to unlock all legal intelligence“I submit to you if these police officers had anything to say about the innocence of the defendant they could have and would have been called by the defendant”
The prosecutor's improper statement that suggested the defendant bore the burden of proving his innocence by calling exculpatory witnesses
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Join FLexlaw to unlock all legal intelligenceDixon was charged with trespass of a structure occupied by a human being. During trial, the prosecutor made a statement suggesting that police officer…
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NESBITT, Judge.
The defendant appeals his conviction for trespass of a structure occupied by a human being. We reverse and remand for a new trial.
The defendant first argues that the prosecutor’s statement, “I submit to you if these police officers had anything to say about the innocence of the defendant they could have and would have been called by the defendant,” in response to the defense’s comment on the state’s lack of evidence, was impermissible. Because we find that the prosecutor’s comment may have led the jury to believe that the defendant had the burden of proving his innocence, the defendant is entitled to a new trial. Compare Wright v. State, 363 So. 2d 617 (Fla. 1st DCA 1978), cert. denied, 372 So. 2d 471 (Fla.1979); Gilbert v. State, 362 So. 2d 405 (Fla. 1st DCA 1978); Young v. State, 280 So. 2d 13 (Fla. 2d DCA 1973) with Jacobs v. State, 389 So. 2d 1054 (Fla. 3d DCA 1980), pet. for review denied, 397 So. 2d 778 (Fla.1981); Weeks v. State, 363 So. 2d 176 (Fla. 4th DCA 1978), Shapiro v. State, 345 So. 2d 361 (Fla. 3d DCA), cert. denied, 353 So. 2d 678 (Fla.1977); Allen v. State, 320 So. 2d 828 (Fla. 4th DCA 1975), dismissed, 330 So. 2d 725 (Fla.1976) (the state may comment on the failure of the defense to call a witness whom the defendant claimed was favorable to his case) and Buckrem v. State, 355 So. 2d 111 (Fla.1978); Daughtrey v. State, 325 So. 2d 456 (Fla. 1st DCA), cert. denied, 336 So. 2d 600 (Fla.1976).
Jenkins v. State, 317 So. 2d 90 (Fla. 1st DCA 1975) (the state was permitted to comment on the defense’s failure to produce alibi witnesses).
The defendant next contends that the trial court erroneously admitted, as evidence of collateral crimes, testimony to the effect that the defendant had on twenty to fifty occasions attempted to obtain money from the victim. Because there was a difference between the previous acts, in which the victim voluntarily gave money to the defendant, and the crime charged, in which the defendant allegedly threatened the victim with a gun, we can only conclude that the evidence was introduced for the improper purpose of highlighting the defendant’s bad character. This being in violation of Williams v. State, 110 So. 2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), we reverse on this point as well. See also Phillips v. State, 350 So. 2d 837 (Fla. 1st DCA 1977); Harris v. State, 183 So. 2d 291 (Fla. 2d DCA 1966).
Because of this disposition, we need not reach the other contentions raised by the defendant.
Reversed and remanded for a new trial.
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Fidel Romero v. State, 435 So. 2d 318 (Fla. 4th DCA 1983)…with evidence sufficient to prove the defendant guilty beyond a reasonable doubt. Thus, a comment that indicates to the jury that the defendant has the burden of proof on any aspect of the case will constitute reversible error. E.g., Dixon v. State, 430 So. 2d 949 (Fla. 3d DCA 1983) and cases cited therein. From these concerns has evolved the general rule that such comments constitute prejudicial and therefore reversible error. See Kirk v. State, 227 So. 2d 40 (Fla. 4th DCA 1969); Michaels v. State, 429 So.…
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Love v. State, 569 So. 2d 807 (Fla. 1st DCA 1990)…a. 4th DCA 1969). Unsolicited argument by the state concerning the defendant’s failure to call witnesses may impermissibly lead the jury to believe that the defendant has the burden of proving his innocence and will mandate reversal. Dixon v. State, 430 So. 2d 949 (Fla. 3rd DCA 1983). Comments on the defendant’s failure to call witnesses is not reversible error where the defense raises in the jury’s mind an implication that a witness will be called, or if called, that the witness will testify in a manner whi…
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Jefferson Lane v. State, 459 So. 2d 1145 (Fla. 3d DCA 1984)…ate, we find that the prosecutor’s “straw man” argument and actual use of the word “alibi” may have led the jury to believe that appellant had the burden of proving his innocence, Bayshore v. State, 437 So. 2d 198 (Fla. 3d DCA 1983); Dixon v. State, 430 So. 2d 949 (Fla. 3d DCA), pet. for rev. denied, 440 So. 2d 353 (Fla.1983); Kindell v. State, 413 So. 2d 1283 (Fla. 3d DCA 1982), and was, therefore, prejudicial error. Reversed and remanded for a new trial.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Williams v. State, 110 So. 2d 654 (Fla. 1959)
- Williams v. Florida, 361 U.S. 847 (U.S. 1959)
- White v. Illinois, 361 U.S. 847 (U.S. 1959)
- Fla. Express, Inc. v. Hawkins, 355 So. 2d 111 (Fla. 1977)
- Jenkins v. State, 317 So. 2d 90 (Fla. 1st DCA 1975)
- Bart Jacobs v. State, 389 So. 2d 1054 (Fla. 3d DCA 1980)
- Harris v. State, 183 So. 2d 291 (Fla. 2d DCA 1966)
- Shapiro v. State, 345 So. 2d 361 (Fla. 3d DCA 1977)
- Allen v. State, 320 So. 2d 828 (Fla. 4th DCA 1975)
- Wright v. State, 363 So. 2d 617 (Fla. 1st DCA 1978)