RICHARD LEON LOWRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant was convicted by jury of committing a lewd and lascivious act upon a six-year-old child. The court reversed the conviction and remanded for new trial based on improper prosecutorial comment during closing argument that was fairly susceptible of being construed as a comment on the defendant's right to remain silent.
The prosecutor's remark was reversible as it was fairly susceptible of construction as a comment upon appellant's right to remain silent, regardless of whether it was also directed at credibility. Reversal was required without resort to the harmless error doctrine.
[1] A prosecutor's comment, even if intended to address a defendant's credibility, is reversible error if it is also fairly susceptible of construction as a comment upon the…
[2] A defendant must preserve the issue of a victim's competency by timely objection to raise it on appeal.
Previewing 2 of 3 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“Until Mr. Lowry testified in here the other day I had no idea whatsoever what he was going to say but he knew exactly what all of the State witnesses were going to say before he got up and testified. They had no idea what he was going to say.”
The prosecutor's statement during closing argument that the court found fairly susceptible of being construed as a comment on the defendant's right to remain silent.
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Join FLexlaw to unlock all legal intelligenceA jury found appellant guilty of committing a lewd and lascivious act upon a six-year-old child. During closing argument, defense counsel remarked tha…
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PER CURIAM.
A jury found appellant guilty of committing a lewd and lascivious act upon a six year old child. In his appeal from judgment entered upon that verdict, appellant has raised one point which requires reversal.
In closing argument, defense counsel remarked that the State had failed to call certain witnesses. In response, the prosecutor pointed out that all these persons were in court, and available for the defense to call if it so desired. He then said,
You heard [defense counsel] say that he has talked to the witnesses in this case many times and that is true. Until Mr. Lowry testified in here the other day I had no idea whatsoever what he was going to say but he knew exactly what all of the State witnesses were going to say before he got up and testified. They had no idea what he was going to say. Keep that in mind.
[Emphasis added.]
The State contends that it directed this comment to appellant’s credibility. We would not disagree; however, the remark is also fairly susceptible of construction as a comment upon appellant’s right to remain silent, and is reversible without resort to the harmless error doctrine. Clark v. State, 363 So. 2d 331 (Fla.1973); Bennett v. State, 316 So. 2d 41 (Fla.1975); Trafficante v. State, 92 So. 2d 811 (Fla.1957).
Appellant also challenges the competency of the victim. Although we do not base our reversal on this point, appellant having failed to preserve it by timely objection, we would point out that the victim was unable to make a clear response to the questions asked by the trial judge during the qualification procedure. On remand, the trial judge should ensure that the victim’s responses demonstrate her competency according to the standards set forth in Kae-lin v. State, 410 So. 2d 1355 (Fla. 4th DCA 1982).
REVERSED AND REMANDED FOR NEW TRIAL.
DELL and WALDEN, JJ., concur. ANSTEAD, C.J., concurs specially with opinion.
ANSTEAD, Chief Judge,
concurring specially:
I concur in the majority’s opinion and write separately only to note that under a more flexible standard I would find the comment quoted in the majority opinion to be harmless error. Cf. Bain v. State, 440 So. 2d 454 (Fla. 4th DCA 1983); Brazil v. State, 429 So. 2d 1339 (Fla. 4th DCA 1983).
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Burgess v. State, 644 So. 2d 589 (Fla. 4th DCA 1994)…did not make a statement until his testimony at trial is improper. Sharp v. State, 605 So. 2d 146 (Fla. 1st DCA 1992); Wood v. State, 552 So. 2d 235 (Fla. 4th DCA 1989); Starr v. State, 518 So. 2d 1389, 1391 (Fla. 4th DCA 1988); and Lowry v. State, 468 So. 2d 298 (Fla. 4th DCA 1985). There is no requirement in a sexual battery case that a defendant file a pretrial notice that consent is the defense, as there is when a defendant wants to raise an alibi, a battered spouse, or an insanity defense. See Fla.R.Cr…
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State v. Lowry, 498 So. 2d 427 (Fla. 1986)…PER CURIAM. We have for review Lowry v. State, 468 So. 2d 298 (Fla. 4th DCA 1985), which directly and expressly conflicts with decisions of other district courts of appeal and this Court. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. The district court held that a comment made by the prosecutor during c…
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Lowry v. State, 510 So. 2d 1196 (Fla. 4th DCA 1987)…DELL, Judge. In Lowry v. State, 468 So. 2d 298 (Fla. 4th DCA 1985), we reversed appellant’s conviction of a lewd and lascivious act upon a six-year-old child and remanded this case for a new trial. We concluded that comments made by the prosecutor during closing argument were fairly susceptible…
Authorities Cited
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Bennett v. State, 316 So. 2d 41 (Fla. 1975)
- Russ v. State, 92 So. 2d 811 (Fla. 1957)
- Kaelin v. State, 410 So. 2d 1355 (Fla. 4th DCA 1982)
- Brazil v. State, 429 So. 2d 1339 (Fla. 4th DCA 1983)
- Bain v. State, 440 So. 2d 454 (Fla. 4th DCA 1983)