DEMETRIO SOSA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Demetrio Sosa appeals his attempted robbery conviction, alleging the prosecutor improperly commented on his right to remain silent during cross-examination of the arresting officer. The Florida District Court of Appeal reverses and remands for a new trial, finding the prosecutor's questions served no purpose other than to prejudice the defendant.
The court reverses and remands for a new trial, finding that the prosecutor's second question about whether Sosa volunteered statements at the station constituted improper commentary on the defendant's right to remain silent. The question served no legitimate purpose since the trial court had previously ruled the defendant's statement inadmissible, making its only purpose to prejudice the defendant.
[1] A prosecutor's comment on a defendant's silence after being advised of their rights is impermissible when the sole purpose is to prejudice the defendant.
[2] A motion for a mistrial made during a sidebar, after an objection and request for sidebar, is sufficient to preserve the issue for appellate review.
Previewing 2 of 4 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 crucial aspect of the challenged testimony is that it was not elicited to show that the defendant did not say anything at that time. The importance of the testimony is the fact that the defendant responded that she was willing to answer questions, and willing to waive her right to remain silent.”
The court's statement from Williams v. State distinguishing permissible testimony about a defendant's willingness to waive rights from impermissible commentary on silence.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAfter the arresting officer advised Sosa of his Miranda rights, the prosecutor asked whether Sosa made any statements at the scene. The officer respon…
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NESBITT, Judge.
The defendant appeals his conviction for attempted robbery alleging that the court erred in denying his motion for mistrial based on the prosecutor’s impermissible comments on the defendant’s right to remain silent. We reverse.
The following colloquy took place during the prosecutor’s direct examination of the arresting officer:
PROSECUTOR: After you had advised Sosa of his rights, did he make any statements to you at the scene? OFFICER: No, not at the scene. DEFENSE COUNSEL: Objection, request a side bar. THE COURT: No, he already answered the question. DEFENSE COUNSEL: I have a motion I would like to make and I need the side bar. THE COURT: The answer is no, simple as that.
PROSECUTOR: Where did this — Did you have a chance to interview him? OFFICER: We didn’t even interview him because we caught him and it was really no questions to ask him. There was no question in our mind that he did it or didn’t do it. DEFENSE COUNSEL: Objection, move to strike. He is not an expert. THE COURT: I will strike .it, but he answered the question. PROSECUTOR: Did he volunteer any statements to you at the station? OFFICER: We were sitting there. He kept talking about— DEFENSE COUNSEL: Objection, I request a side bar at this point. THE COURT: Sustained. (Sidebar) DEFENSE COUNSEL: First, I move for a mistrial. The State elicited from this witness the fact that he was given his rights. There was a question as to whether Mr. Sosa said anything and he said “no”. It’s a matter of law that— THE COURT: That’s denied. As to the first comment, we find that counsel’s motion for a sidebar was an insufficient method by which to preserve the right to appeal this point. See Judge Pearson’s special concurrence in Kindell v. State, 413 So. 2d 1283 (Fla. 3d DCA 1982).
The defendant fares better on his claim with respect to the second comment only because the trial judge consented to a sidebar at which time defense counsel made a motion for a mistrial. That motion preserved the issue for our review.
The state relies on Williams v. State, 353 So. 2d 588 (Fla. 3d DCA 1977), cert. dismissed, 372 So. 2d 64 (Fla.1979), to argue that the prosecutor’s comment was proper. In Williams, the prosecutor was seeking to introduce the defendant’s statement into evidence. The court found:
The crucial aspect of the challenged testimony is that it was not elicited to show that the defendant did not say anything at that time. The importance of the testimony is the fact that the defendant responded that she was willing to answer questions, and willing to waive her right to remain silent. 353 So. 2d at 590. The present ease is readily distinguishable because the trial court had previously ruled that the defendant’s statement was inadmissible. Therefore, it clearly appears that the only purpose to be served by the prosecutor’s question was to prejudice the defendant. Accordingly, we reverse and remand for a new trial.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Kindell v. State, 413 So. 2d 1283 (Fla. 3d DCA 1982)
- Williams v. State, 353 So. 2d 588 (Fla. 3d DCA 1977)
- Williams v. State, 372 So. 2d 64 (Fla. 1979)