JEFFREY DEMICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Demick was convicted of crimes but obtained reversal based on an improper prosecutorial comment about his silence. The Fourth District Court of Appeal held that the prosecutor's statement comparing the defendant's failure to give an initial statement to the police with a co-defendant witness's voluntary detailed statement constituted a per se reversible error comment on the defendant's right to remain silent under Kinchen v. State.
The court held that under the 'fairly susceptible' standard adopted in Kinchen v. State, the prosecutor's comment was per se reversible error because it was fairly susceptible of being interpreted by the jury as a comment on appellant's failure to speak initially to police.
[1] A prosecutor's comment during closing argument that a witness voluntarily gave a detailed and truthful statement to police, while the defendant did not, is susceptible to…
[2] A comment by the prosecution that is fairly susceptible of being interpreted by the jury as a comment on the defendant's exercise of the right to remain silent constitute…
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“if the comment is fairly susceptible of being interpreted by the jury as a comment on the appellant's exercise of his right to remain silent when initially confronted, such a comment constitutes per se reversible error”
Establishes the controlling legal standard from Kinchen that applies to prosecutorial comments 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 intelligenceAppellant Demick was charged with crimes. The state's chief witness was an admitted participant in the same crimes alleged against appellant. During c…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Appellant has raised several issues which are identical to those raised in the companion case of Morrissey v. State, 451 So. 2d 526, which decision is issued simultaneously herewith. We resolve those issues in accord with the opinion in Morrissey. However, appellant has also raised a claim that he was entitled to a mistrial when the prosecutor stated in closing argument that the state’s chief witness, an admitted participant in the same crimes alleged against appellant, had, unlike appellant, voluntarily given a detailed and truthful statement to the police admitting his participation in the crimes alleged. Appellant claims that this constituted an improper comment on his right to remain silent. See Kinchen v. State, 432 So. 2d 586 (Fla. 4th DCA 1983).
Under the prevailing law as set out in Kinchen, if the comment is fairly susceptible of being interpreted by the jury as a comment on the appellant’s exercise of his right to remain silent when initially confronted, such a comment constitutes per se reversible error. Here, a comment that the prosecution witness gave a statement up front, and the defendant did not, is surely “fairly susceptible” of being interpreted as a comment on appellant’s failure to speak out in the beginning. In other words, under the “fairly susceptible” standard adopted by the Florida Supreme Court, we have no choice but to reverse. In doing so, however, we acknowledge, as we did in Kinchen, that two of our sister courts have applied different standards than we apply here. See Gains v. State, 417 So. 2d 719 (Fla. 1st DCA 1982); and State v. Bolton, 383 So. 2d 924 (Fla. 2d DCA 1980).1
Accordingly, appellant’s convictions are reversed and this cause is remanded for a new trial in accord herewith.
ANSTEAD, C.J., and LETTS and BERA-NEK, JJ., concur. . In reviewing the record, we believe that the prosecutor's remarks were actually made in response to defense counsel’s attack during final argument on the credibility of the prosecution witness and, especially, the state’s willingness to allow the witness to plead guilty to a lesser offense in exchange for his testimony. If we were free to apply the standard set out in Gains and Bolton, we would be inclined to affirm appellant’s conviction on the grounds that the particular comment was harmless, considered in the context in which it was made and in view of the other evidence of appellant’s involvement. In reaching this conclusion, we are also influenced by the fact that appellant testified at the trial, and his credibility too was before the jury.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Gains v. State, 417 So. 2d 719 (Fla. 1st DCA 1982)
- State v. Bolton, 383 So. 2d 924 (Fla. 2d DCA 1980)
- Kinchen v. State, 432 So. 2d 586 (Fla. 4th DCA 1983)
- Morrissey v. State, 451 So. 2d 526 (Fla. 4th DCA 1984)