RICKEY HOUSTON, A/K/A JAMES WILSON, JR., APPELLANT,
v.
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.
Houston appealed a summary denial of his post-conviction motion alleging ineffective assistance of counsel, claiming his trial counsel failed to object when the prosecutor commented on his failure to testify. The appellate court affirmed, finding the prosecutor's comments were not objectionable because they were responsive to defense counsel's argument and did not disparage Houston's constitutional right not to testify.
The prosecutor's comments were not objectionable when considered in their totality of circumstances. The comments were directly responsive to defense counsel's prior argument, did not disparage Houston's decision not to testify, and actually affirmed respect for that constitutional right. Therefore, counsel's failure to object could not constitute ineffective assistance.
[1] A prosecutor's comment on a defendant's failure to testify is permissible when it is a direct response to the defendant's counsel's argument explaining the defendant's si…
[2] A prosecutor's comment on a defendant's failure to testify is not objectionable when it is responsive to defense counsel's argument and does not disparage the defendant's…
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“The State's responsive comment in argument carried no further implication but that 'there is an overabundance of testimony— the State has carried its burden beyond a reasonable doubt to show that he did, in fact, commit the act,' and that Houston's failure to testify in his defense 'still leaves us with the fact that there is absolutely no testimony in favor of Mr. Houston that would show he didn't commit this act.'”
Describes the prosecutor's actual comments on Houston's failure to testify, characterizing them as factual observations rather than disparagement
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDuring trial, Houston's counsel argued that Houston's failure to testify was a consequence of the State's failure to present evidence requiring Housto…
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PER CURIAM.
This matter was previously before us on Houston’s appeal from the circuit court’s summary denial of his motion for post-conviction relief based upon the alleged ineffectiveness of Houston’s trial counsel. Houston v. State, 432 So. 2d 56 (Fla. 1st DCA 1983). Upon the State’s motion for rehearing of that decision, which was denied, we ordered that the State supply directly to us the portions of the record that conclusively refute Houston’s allegation, and that jurisdiction should revest in this court upon the filing of that record.
We have now examined the record of argument by counsel for Houston and for the State, before the jury, and find that the State’s comment upon Houston’s failure to testify, the source of Houston’s present argument that his counsel served him ineffectively by failing to object and move for a mistrial on account of the State’s comment, was directly responsive to the prior argument of Houston’s own counsel that explained Houston’s failure to testify as a consequence of the State’s failure (so counsel argued) to present evidence requiring an answer through Houston’s testimony. The State’s responsive comment in argument carried no further implication but that “there is an overabundance of testimony— the State has carried its burden beyond a reasonable doubt to show that he did, in fact, commit the act,” and that Houston’s failure to testify in his defense “still leaves us with the fact that there is absolutely no testimony in favor of Mr. Houston that would show he didn’t commit this act.” The prosecutor did not disparage Houston’s decision not to testify; he pointed to the anticipated charge by the court that would and did explain and legitimate Houston’s decision not to testify; and the prosecutor added: “That’s their right and I respect that right and I don’t want to ever see that changed .... ”
The State’s argument, considered in the totality of the circumstances, was not objectionable. See Simpson v. State, 352 So. 2d 125 (Fla. 1st DCA 1977). Houston’s counsel’s failure to object and move for a mistrial could not, therefore, have constituted ineffective assistance.
The trial court’s order denying Houston’s motion is AFFIRMED.
ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Ezekial Simpson v. State, 352 So. 2d 125 (Fla. 1st DCA 1977)
- Houston v. State, 432 So. 2d 56 (Fla. 1st DCA 1983)