JOSEPH MARTIN BROCK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellate court reversed burglary and grand theft convictions because prosecutor improperly commented on defendant's failure to testify, violating the Fifth Amendment right to remain silent, despite overwhelming evidence of guilt.
A prosecutor's closing argument comment that the defendant must "stand up and 'fess to what happened" constitutes improper comment on the defendant's right to remain silent, mandating reversal regardless of evidence strength.
[1] A prosecutor's closing argument comment inviting the jury to consider a defendant's failure to testify mandates reversal of conviction without application of harmless err…
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Join FLexlaw to unlock all legal intelligence“Today is the day he has to stand up and, 'fess to what happened and pay for what he did.”
Prosecutor's closing argument comment that the appellate court found improperly referenced defendant's failure to testify.
Brock was charged with burglary of a dwelling and four counts of grand theft. He chose not to testify at trial, and during closing argument the prosec…
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SHARP, Judge.
Brock appeals from judgments adjudicating him guilty of burglary of a dwelling1 and four counts of grand theft.2 We reverse and remand this case for a new trial because the prosecutor improperly commented upon Brock’s right to remain silent.3
Brock chose not to testify at his jury trial. During closing argument, the prosecutor told the jury that: “Today is the day he has to stand up and, ‘fess to 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). 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 adduced at trial against Brock, we have no choice but to reverse his convictions and remand this case for a new trial. However, we affirm the trial court’s determination that Brock’s confessions were voluntary, and find that they were properly entered into evidence.
REVERSED AND REMANDED.
ORFINGER, C.J., and COBB, J., concur. . § 810.02(3), Fla.Stat. (1981).
. § 812.014(1), Fla.Stat. (1981).
.Harris v. State, 438 So. 2d 787 (Fla.1983); U.S. Const. amend. V.
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Citator
Cited By
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Marshall v. State, 473 So. 2d 688 (Fla. 4th DCA 1984)…onstitutes reversible error without resort to the harmless error doctrine. David v. State, supra; Trafficante v. State, supra; Snowden v. State, 449 So. 2d 332 (Fla. 5th DCA 1984); Samosky v. State, 448 So. 2d 509 (Fla. 3d DCA 1983); Brock v. State, 446 So. 2d 1170 (Fla. 5th DCA 1984); Brazil v. State, 429 So. 2d 1339 (Fla. 4th DCA 1983); Wilson v. State, 371 So. 2d 126 (Fla. 1st DCA 1978). Since only two people witnessed the events in question, and one of those chose not to testify, we cannot accept the stat…
Authorities Cited
- Harris v. State, 438 So. 2d 787 (Fla. 1983)
- Layton v. State, 435 So. 2d 883 (Fla. 3d DCA 1983)