BARRY LAYTON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A prosecutor's comment during closing argument that is susceptible to interpretation as referring to a defendant's failure to testify constitutes reversible error if preserved by objection.
During closing arguments, the prosecutor commented on the advantage of defendants listening to other witnesses' testimony. The defendant objected, but…
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PER CURIAM.
Because the prosecutor’s closing argument comment
“[As] you know, it doesn’t take a genius to figure out that Mr. Layton and Mr. Parker, as opposed to the other witnesses, have been sitting here in this courtroom with the advantage and ability to listen to how each witness testified ...”
is, particularly where Parker, the co-defendant, testified, “fairly susceptible,” David v. State, 369 So. 2d 943, 944 (Fla.1979), of being interpreted by the jury as referring to Layton’s failure to testify, see Hall v. State, 364 So. 2d 866 (Fla. 1st DCA 1978); Singleton v. State, 183 So. 2d 245 (Fla. 2d DCA 1966), “regardless of its susceptibility to a different construction,” Trafficante v. State, 92 So. 2d 811, 814 (Fla.1957); and because such a comment, although in the circumstances of this case unquestionably harmless, is reversible error without resort to the harmless error doctrine where, as here, the error is preserved by a timely overruled objection,1 David v. State, 369 So. 2d 943; Trafficante v. State, 92 So. 2d 811; Ramos v. State, 413 So. 2d 1302 (Fla. 3d DCA 1982); Cunningham v. State, 404 So. 2d 759 (Fla. 3d DCA 1981), we reverse and remand for a new trial.
For the benefit of the trial judge assigned to retry this case, we note that we have examined appellant’s other points on appeal and have found them to be without merit. We particularly note that the defendant’s post-arrest statement, since shown to be made after a knowing and intelligent waiver of Miranda rights and to be otherwise voluntary, was properly admitted in evidence and is entitled to admission on any retrial.
Reversed and remanded.
.And preserved by an equally unsuccessful but unnecessary motion for mistrial, see Simpson v. State, 418 So. 2d 984 (Fla.1982); Ramos v. State, 413 So. 2d 1302 (Fla. 3d DCA 1982).
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Kinnon v. State, 439 So. 2d 958 (Fla. 3d DCA 1983)…he was present in the truck and that they therefore require reversal “regardless of [their] susceptibility to a different construction.” Trafficante v. State, 92 So. 2d 811, 814 (Fla.1957); David v. State, 369 So. 2d 943 (Fla.1979); Layton v. State, 435 So. 2d 883 (Fla. 3d DCA 1983). Whether or not this might have been true if these phrases had stood alone, that was not what happened here. As Harris emphasized, allegedly offending remarks may not be wrenched from the context of all that the jury heard on the…
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State v. Allister Jones, 867 So. 2d 398 (Fla. 2004)…la. 4th DCA 2003) (finding that prosecutor’s closing statement that the defendant has the right to remain silent and that “[h]e did not take the stand in this case” impermissibly highlighted the defendant’s decision to not testify); Layton v. State, 435 So. 2d 883, 883-84 (Fla. 3d DCA 1983) (finding that prosecutor’s closing remark that the defendants “have been sitting here ... listening] to how each witness testified” was an impermissible comment on one defendant’s decision to not testify); Fernandez v. Sta…
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Brock v. State, 446 So. 2d 1170 (Fla. 5th DCA 1984)…what happened and pay for what he did.” Defense counsel immediately objected and moved for a mistrial. We believe that this comment was fairly susceptible of being interpreted by the jury as referring to Brock’s failure to testify. Layton v. State, 435 So. 2d 883 (Fla. 3d DCA 1983). [*1171] Such a comment mandates the reversal of any criminal conviction because the harmless error rule does not apply. Harris v. State, 438 So. 2d 787 (Fla.1983). Therefore, despite the fact that overwhelming evidence was adduce…
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
- Russ v. State, 92 So. 2d 811 (Fla. 1957)
- Simpson v. State, 418 So. 2d 984 (Fla. 1982)
- David v. State, 369 So. 2d 943 (Fla. 1979)
- Singleton v. State, 183 So. 2d 245 (Fla. 2d DCA 1966)
- Dereck Cunningham v. State, 404 So. 2d 759 (Fla. 3d DCA 1981)
- Sarai Ramos v. State, 413 So. 2d 1302 (Fla. 3d DCA 1982)
- Hall v. State, 364 So. 2d 866 (Fla. 1st DCA 1978)