WILLIAM SAMOSKY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The appellate court reversed a defendant's convictions for manslaughter, armed robbery, and kidnapping. The court found that the prosecutor's indirect comment on the defendant's failure to testify during closing arguments constituted reversible error.
Yes, the prosecutor's comment was an indirect comment on the defendant's failure to testify. The trial court erred in denying the motion for mistrial, and this error requires reversal.
[1] An indirect comment by a prosecuting attorney during closing argument on a defendant's failure to testify constitutes reversible error.
[2] The harmless error rule does not apply to prosecutorial comments on a defendant's exercise of the right to remain silent.
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“So normally at this point, I’d say, ‘Well, what about the defense in this case?’ I don’t know what the defense is_”
The prosecutor's comment that formed the basis of the appeal.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDuring closing arguments, the prosecutor stated, "So normally at this point, I’d say, ‘Well, what about the defense in this case?’ I don’t know what t…
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PER CURIAM.
The defendant William Samosky appeals his convictions for manslaughter, armed robbery and kidnapping and contends that the trial court committed reversible error in denying his timely motion for mistrial based on an impermissible comment by the prosecuting attorney during closing argument to the jury. It is urged that the prosecuting attorney indirectly commented on the defendant’s failure to testify in the ease as follows:
“So normally at this point, I’d say, ‘Well, what about the defense in this case?’ I don’t know what the defense is_” (R. 234-35)
We entirely agree that the above comment was an indirect comment on the defendant’s failure to testify 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 well-settled that “such a comment requires the reversal of a conviction and that the harmless error rule does not apply,” Harris v. State, 438 So. 2d 787 (Fla.1983), that “[a]ny comment on an accused’s exercise of his right to remain silent is reversible error, without regard for the harmless error doctrine,” Donovan v. State, 417 So. 2d 674, 675 (Fla.1982), and that “[a]ny comment which is ‘fairly susceptible’ of being interpreted by the jury as referring to a criminal defendant’s failure to testify constitutes reversible error, without resort to the harmless error doctrine.” David v. State, 369 So. 2d 943, 944 (Fla.1979).
See also Shannon v. State, 335 So. 2d 5 (Fla.1976); Bennett v. State, 316 So. 2d 41 (Fla.1975); Trafficante v. State, 92 So. 2d 811 (Fla. 1957), for the same holding.
The judgments of conviction and sentences under review are reversed and the cause is remanded to the trial court for a new trial.
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Cited By
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Marshall v. State, 473 So. 2d 688 (Fla. 4th DCA 1984)…ring to a criminal defendant’s failure to testify constitutes 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 t…
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Grissom v. State, 469 So. 2d 151 (Fla. 3d DCA 1985)…. Harris v. State, 438 So. 2d 787 (Fla.1983); David v. State, 369 So. 2d 943 (Fla.1979); Trafficante v. State, 92 So. 2d 811 (Fla.1957); Roberts v. State, 443 So. 2d 192 (Fla. 3d DCA 1983), review denied, 450 So. 2d 489 (Fla.1984); Samosky v. State, 448 So. 2d 509 (Fla. 3d DCA 1983), review denied, 449 So. 2d 265 (Fla.1984). We find that the trial court’s comment in the present case was fairly susceptible of being interpreted by the jury as referring to the defendant’s exercise of his right to remain silent.…
Authorities Cited
- Shannon v. State, 335 So. 2d 5 (Fla. 1976)
- Bennett v. State, 316 So. 2d 41 (Fla. 1975)
- Russ v. State, 92 So. 2d 811 (Fla. 1957)
- Harris v. State, 438 So. 2d 787 (Fla. 1983)
- David v. State, 369 So. 2d 943 (Fla. 1979)
- Donovan v. State, 417 So. 2d 674 (Fla. 1982)
- Young v. State, 280 So. 2d 13 (Fla. 2d DCA 1973)
- Fernandez v. State, 427 So. 2d 265 (Fla. 2d DCA 1983)
- Shepherd v. State, 436 So. 2d 232 (Fla. 3d DCA 1983)