ROBERT L. DUNBAR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a prosecutor's comment on a defendant's failure to call witnesses is not improper if defense counsel indicated those witnesses would testify.
[1] A prosecutor's comment on a defendant's failure to call witnesses is improper if it infringes on the defendant's right to remain silent or suggests the defendant bears th…
[2] A prosecutor may comment on a defendant's failure to call witnesses when defense counsel has stated in opening statements that those witnesses would testify.
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Join FLexlaw to unlock all legal intelligenceThe defendant's counsel stated in opening arguments that certain witnesses would testify, but neither party called them. The prosecutor commented on t…
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PER CURIAM.
Appellant, Robert L. Dunbar, appeals his conviction and sentence for sexual battery and robbery in violation of sections 794.-011(3) and 812.13(2)(a), Florida Statutes (1983). We affirm.
Appellant raises one point on appeal, asserting that the trial court erred in allowing the prosecutor to comment during closing argument on appellant’s failure to call certain witnesses. He contends that these comments infringed on his constitutional right to remain silent, as well as his right to be presumed innocent until proven guilty. We find no merit in appellant’s argument.
Reference by a prosecuting attorney to a defendant’s failure to call certain witnesses may be prejudicial if it refers to a defendant’s exercise of his right to remain silent or if the comments indicate that the defendant has the burden to come forward with evidence and prove his innocence. Romero v. State, 435 So. 2d 318 (Fla. 4th DCA 1983), cert. denied, 447 So. 2d 888 (Fla.1984). However, it is not improper for a prosecuting attorney to refer to a defendant’s failure to call certain witnesses when defense counsel indicates in opening statements that those witnesses would be called to testify. Romero; Dixon v. State, 206 So. 2d 55 (Fla. 4th DCA 1968).
In this case, the issue arose because of appellant’s counsel’s comments in opening statements that certain witnesses would testify during trial. Subsequently, these witnesses were not called by either party, and appellant’s counsel commented on the state’s failure to call them. The prosecutor then responded that appellant could have called the witnesses as well. In Dixon v. State, the fourth district held that where defense counsel commented on the state’s failure to call a witness, a response by the prosecuting attorney that the defense had an equal ability to present the witness, was not prejudicial to defendant’s right to a fair trial. Therefore, we affirm on the authority of Romero and Dixon.
Affirmed.
RYDER, C.J., and CAMPBELL and LE-HAN, JJ., concur.
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Love v. State, 569 So. 2d 807 (Fla. 1st DCA 1990)…ill be called, or if called, that the witness will testify in a manner which is favorable to the defendant’s theory of the case. The issue may [*811] be interjected into the proceeding either in opening remarks or through testimony. Dunbar v. State, 458 So. 2d 424 (Fla. 2nd DCA 1984); Weeks v. State, 363 So. 2d 176 (Fla. 4th DCA 1975); Jenkins v. State, 317 So. 2d 90 (Fla. 1st DCA 1975). In the instant case, the principal issue was the sanity of the defendant at the time of the crime. The defense counsel sol…
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Brown v. State, 593 So. 2d 1210 (Fla. 2d DCA 1992)…nt, the prosecutor also improperly commented on the appellant’s failure to call a witness. This comment indicated that the defendant had the burden to come forward with evidence and prove his innocence and was therefore prejudicial. Dunbar v. State, 458 So. 2d 424 (Fla. 2d DCA 1984). The combination of these improper comments requires us to reverse and remand for a new trial. Redish v. State, 525 So. 2d 928 (Fla. 1st DCA 1988); Singletary. Reversed and remanded. CAMPBELL and PATTERSON, JJ., concur.…
Authorities Cited
- Fidel Romero v. State, 435 So. 2d 318 (Fla. 4th DCA 1983)
- Dixon v. State, 206 So. 2d 55 (Fla. 4th DCA 1968)