THOMAS GUY BAYSHORE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Thomas Bayshore was convicted of burglary and grand theft based on victim eyewitness testimony. The Florida Third District Court of Appeal reversed his conviction, finding that the prosecutor improperly created and then attacked an alibi defense by eliciting statements from the arresting officer about Bayshore's claims and then commenting on his failure to call his father as a witness.
The court reversed and remanded for a new trial, finding the prosecutor's comments improper. The prosecutor may not comment on a defendant's failure to call witnesses unless the state first establishes the witnesses are available and competent and would elucidate the transaction; moreover, the prosecutor cannot create an alibi defense through its own questions and then attack the defendant for not calling witnesses to support it.
[1] A prosecutor may not comment on a defendant's failure to call an alibi witness when the prosecution itself created the alibi defense.
[2] A prosecutor's comments on a defendant's failure to call a witness are improper if the prosecution fails to establish the witness's availability and competency.
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“[A]n inference adverse to the defendant is permitted when the defendant fails to call witnesses only when it is shown that the witnesses are peculiarly within the defendant's power to produce and the testimony of the witnesses would elucidate the transaction, that is, that the witnesses are both available and competent.”
Establishes the legal standard for when prosecutors may comment on a defendant's failure to call witnesses
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Join FLexlaw to unlock all legal intelligenceBayshore was convicted based on the victim's testimony that she awoke to find him rummaging through her purse containing $200. The victim recognized h…
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HENDRY, Judge.
Defendant below appeals from his conviction of burglary and grand theft. The only issue on appeal is whether the trial court erred in refusing to grant appellant’s motion for a mistrial following the prosecutor’s comments on appellant’s failure to call his father as an “alibi” witness. We find merit in this argument and reverse.
Appellant was convicted on the basis of the testimony of the victim who said she awoke to find the appellant rummaging through her purse. The purse contained $200.00 in cash. The victim stated that she recognized the appellant because he was a neighbor. She also picked appellant’s picture out of a photo line-up. Approximately one week after the incident, appellant was arrested at his father’s home, which is 3^4 miles away from the victim’s residence. Appellant filed no notice of alibi, nor did he even hint at an alibi defense during the trial. The defense focused solely on the fact that the victim told the investigating officer that the perpetrator, whom she named as Tommy Bayshore, had a birthmark on his face when the appellant, in fact, has none.
And now, as Judge Pearson said in Kindell v. State, 413 So. 2d 1283 (Fla. 3d DCA 1982) (Pearson, J. concurring), enter the straw man. The prosecutor asked the arresting officer, Detective Rivera, whether appellant made any statements during the ride to the Dade County Jail. Detective Rivera responded by saying that appellant “kept making statements that he wasn’t in the neighborhood. He wasn’t anywhere near there. That he was at his father’s house on the night of the burglary ...”
Having created the straw man, the prosecutor then proceeded to knock it down. During closing arguments the prosecutor told the jury to use its common sense. “[I]f Thomas Bayshore was at home with his father as he told Officer (sic) Rivera, where’s the one person who can corroborate that?” The prosecutor once again commented on appellant’s failure to call his father as an alibi witness even after there was an objection to his first comment. Appellant moved for a mistrial after the second improper comment. This motion was denied.
In Kindell v. State, Judge Pearson stated that “[a]n inference adverse to the defendant is permitted when the defendant fails to call witnesses only when it is shown that the witnesses are peculiarly within the defendant’s power to produce and the testimony of the witnesses would elucidate the transaction, that is, that the witnesses are both available and competent.” Id. at 1288. See also Lane v. State, 352 So. 2d 1237 (Fla. 1st DCA 1977). . The same adverse inference may be shown if the defendant raises alibi as a defense and then fails to call alibi witnesses. Pena v. State, 432 So. 2d 715 (Fla. 3d DCA 1983); Jacobs v. State 389 So. 2d 1054 (Fla. 3d DCA 1980), rev. denied, 397 So. 2d 778 (Fla.1981); 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). In the instant case, however, as in Kindell, supra, the state not only “totally failed to establish the competency and availability of the ... [father as an] alibi witness as a predicate to its argument, but — even more egregiously — itself created, in order to later destroy, the alibi defense.” Id. at 1288.
When the propriety of prosecutorial comments is raised on appeal, the key question is “whether or not [we] can see from the record that the conduct of the prosecuting attorney did not prejudice the accused, and unless this conclusion be reached, the judgment should be reversed.” Lipman v. State, 428 So. 2d 733, 736 (Fla. 1st DCA 1983), quoting Coleman v. State, 420 So. 2d 354, 356 (Fla. 5th DCA 1982). Because the whole issue of alibi was raised by the state, we find that the prosecutor’s comments may have led the jury to believe that appellant had the burden of proving his innocence. Dixon v. State, 430 So. 2d 949 (Fla. 3d DCA 1983); Gilbert v. State, 362 So. 2d 405 (Fla. 1st DCA 1978). See also Salazar-Rodriguez v. State, 436 So. 2d 269 (Fla. 3d DCA 1983); Michaels v. State, 429 So. 2d 338 (Fla. 2d DCA 1983).
For these reasons this cause is reversed and remanded for a new trial.
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Consalvo v. State, 697 So. 2d 805 (Fla. 1996)…la.1986). Prosecutor’s Argument Next, appellant claims that the trial court erred by allowing the State during its closing argument to rebut a suicide defense which the State believed was raised by the defense’s case. Relying on Bayshore v. State, 437 So. 2d 198 (Fla. 3d DCA 1983), and Brown v. State, 524 So. 2d 730 (Fla. 4th DCA 1988), Consalvo contends that the prosecutor improperly set up a “strawman” defense in order to knock it down. We find no error and find this case distinguishable from Bayshore v.…1 / 2
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Brown v. State, 524 So. 2d 730 (Fla. 4th DCA 1988)…’s creation of the impression that alibi witnesses existed, i.e., appellant’s friend and his friend’s father, there would not have been even a hint as to the existence of a possible alibi defense. Appellant relies on the cases of Bayshore v. State, 437 So. 2d 198 (Fla. 3d DCA 1983), and Lane v. State, 459 So. 2d 1145 (Fla. 3d DCA 1984), in support of his argument that the prosecutor’s line of questioning and comments in closing argument regarding the alibi witnesses were impermissible and constituted reversi…
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Jefferson Lane v. State, 459 So. 2d 1145 (Fla. 3d DCA 1984)…cause the whole issue of alibi was raised by the state, 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 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Jenkins v. State, 317 So. 2d 90 (Fla. 1st DCA 1975)
- Bart Jacobs v. State, 389 So. 2d 1054 (Fla. 3d DCA 1980)
- Kindell v. State, 413 So. 2d 1283 (Fla. 3d DCA 1982)
- Thorndike v. State, 420 So. 2d 354 (Fla. 5th DCA 1982)
- Lewis v. State, 428 So. 2d 733 (Fla. 1st DCA 1983)
- Sainer Constructors, Inc. v. Gen. Elec. Co., 352 So. 2d 1237 (Fla. 2d DCA 1977)
- Michaels v. State, 429 So. 2d 338 (Fla. 2d DCA 1983)
- Dixon v. State, 430 So. 2d 949 (Fla. 3d DCA 1983)
- Brown v. Pub. Health Tr. OF Dade Cnty., 432 So. 2d 715 (Fla. 3d DCA 1983)
- Salazar-Rodriguez v. State, 436 So. 2d 269 (Fla. 3d DCA 1983)