PEDRO ANDRES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Conviction reversed because prosecutor's closing argument was susceptible to being interpreted as referring to defendant's failure to testify, a constitutional error requiring reversal even if harmless.
A prosecutor's closing argument statement susceptible of interpretation as referring to a defendant's failure to testify requires reversal of conviction, even if potentially harmless, when the error is timely preserved.
[1] A prosecutor's closing argument susceptible of interpretation as commenting on a defendant's failure to testify constitutes reversible error when timely objected to, rega…
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Join FLexlaw to unlock all legal intelligence“There is no testimony at this point in the evidence to indicate that he ever intended to withdraw [from the conspiracy]”
Prosecutor's closing argument statement that was susceptible of interpretation as referring to defendant's failure to testify
Andres was convicted of conspiracy. During closing argument, the prosecutor stated there was no testimony indicating the defendant intended to withdra…
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PER CURIAM.
The prosecutor’s closing argument statement: “There is no testimony at this point in the evidence to indicate that he ever intended to withdraw [from the conspiracy],” was, beyond any dispute, susceptible of being interpreted by the jury as referring to the defendant’s failure to testify, and, the error having been preserved by timely objection and motion for mistrial, reversal of Andres’ conviction is required even if the statement could be deemed harmless. Harris v. State, 438 So. 2d 787 (Fla.1983); Donovan v. State, 417 So. 2d 674 (Fla.1982); 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), rev. denied, 450 So. 2d 489 (Fla.1984); Brown v. State, 427 So. 2d 304 (Fla. 3d DCA), rev. denied, 438 So. 2d 834 (Fla.1983).
Because we do not find the evidence of the defendant’s guilt so overwhelming as to render harmless the prosecutor’s argument, we need not question whether the Supreme Court of Florida in State v. Murray, 443 So. 2d 955 (Fla.1984), has receded from the per se reversal rule. Compare, e.g., Burns v. State, 466 So. 2d 1207 (Fla. 3d DCA 1985); Grissom v. State, 469 So. 2d 151 (Fla. 3d DCA 1985.
However, contrary to the defendant’s claim, the evidence was sufficient to sustain the conviction, and he is not entitled to discharge.
Reversed and remanded for a new trial.
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Citator
Cited By
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State v. Andres, 552 So. 2d 1151 (Fla. 3d DCA 1989)…ing by sale and delivery of cocaine and conspiracy to traffic in cocaine. He was acquitted on the conspiracy count and convicted on the trafficking count. We reversed the trafficking conviction and remanded the case for a new trial. Andres v. State, 468 So. 2d 1084 (Fla. 3d DCA 1985). Prior to the new trial, the defendant was heard on a motion in limine seeking to exclude statements made by the alleged co-conspirators, contending that after the acquittal on the conspiracy charge any evidence of a conspiracy be…
Authorities Cited (11 total)
- State v. Murray, 443 So. 2d 955 (Fla. 1984)
- 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)
- Brown v. State, 427 So. 2d 304 (Fla. 3d DCA 1983)
- Roberts v. State, 443 So. 2d 192 (Fla. 3d DCA 1983)
- State v. C.S., 469 So. 2d 151 (Fla. 3d DCA 1985)
- Grissom v. State, 469 So. 2d 151 (Fla. 3d DCA 1985)
- Tamburrino v. S.C. Ins. Co., 466 So. 2d 1207 (Fla. 3d DCA 1985)