RICHARD WAYNE SHEPHERD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Pursuant to jury verdict, the defendant was adjudged guilty of the crimes of sexual battery, burglary, and attempted second degree murder. He appeals the adjudication of guilt and attendant sentences contending that the prosecution improperly commented during closing argument as follows:
We’ve heard a lot of allegations with respect to a defense and I must confess to you, when I sat down to prepare my closing remarks, I had a lot of difficulty in trying to figure out exactly what the defense was going to be, because, frankly, for my purpose, I haven’t heard any.
This comment met with an immediate objection and a motion for mistrial, which motion was denied.
We reverse because the prosecutor’s comment was clearly susceptible of being interpreted by the jury as referring to the defendant’s failure to testify. David v. State, 369 So. 2d 943 (Fla.1979); Fernandez v. State, 427 So. 2d 265 (Fla. 2d DCA 1983); Cunningham v. State, 404 So. 2d 759 (Fla. 3d DCA 1981).
Reversed and remanded for a new trial.
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Citator
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Ryan v. State, 457 So. 2d 1084 (Fla. 4th DCA 1984)…uction. Id. at 814. Constantly referring to the appellant as actually “lying,” “claiming” or “telling” the jury something is sure to be construed as an improper comment on her failure to testify no matter how subtle the innuendo. Shepard v. State, 436 So. 2d 232 (Fla. 3d DCA 1983). At this point it is necessary to discuss the nature and sufficiency of defense counsel's objections to the prosecutor’s misconduct. Defense counsel objected twice during the State’s closing argument and at the end objected again…
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State v. Sheperd, 479 So. 2d 106 (Fla. 1985)…ADKINS, Justice. This cause is before the Court because the decision of the Third District Court of Appeal, Sheperd v. State, 436 So. 2d 232 (Fla. 3d DCA 1983), expressly and directly conflicts with prior decisions of this Court, White v. State, 377 So. 2d 1149 (Fla.1979), and Wilson v. State, 436 So. 2d 908 (Fla.1983). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Pursuant to ju…
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Samosky v. State, 448 So. 2d 509 (Fla. 3d DCA 1983)…tify and present a defense, that the trial court erred in denying the defendant’s timely motion for mistrial based on this comment, and that a reversal of the convictions herein is required under the established law of this state. Shepherd v. State, 436 So. 2d 232 (Fla. 3d DCA 1983); Fernandez v. State, 427 So. 2d 265 (Fla. 2d DCA 1983); Young v. State, 280 So. 2d 13 (Fla. 2d DCA 1973). We specifically reject the state's contention that we consider this comment a harmless error because the law of Florida is w…
Authorities Cited
- David v. State, 369 So. 2d 943 (Fla. 1979)
- Dereck Cunningham v. State, 404 So. 2d 759 (Fla. 3d DCA 1981)
- Fernandez v. State, 427 So. 2d 265 (Fla. 2d DCA 1983)