MARSHALL CHRISTOPHER LONG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Marshall Long appealed his probation sentence for burglary on grounds of prosecutorial misconduct, challenging improper comments by the prosecutor regarding his failure to confess and testify. The court affirmed the conviction but certified a constitutional question to the Florida Supreme Court regarding whether comments on a defendant's failure to testify constitute per se reversible error.
The court affirmed the conviction, finding the evidence sufficient to overcome the prosecutorial misconduct error. However, the court certified a question to the Florida Supreme Court regarding whether comments on a defendant's failure to testify are per se reversible error or subject to harmless error analysis.
[1] A prosecutor's comment during closing argument regarding a defendant's failure to confess or testify at trial constitutes prosecutorial misconduct.
[2] An improper prosecutorial comment during closing argument may be preserved for review by a timely objection or a subsequent motion for mistrial.
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Join FLexlaw to unlock all legal intelligence“the prosecutor told the jury on final argument "... (defense counsel) asks you to allow his client to walk out of here a free man with no record and never having had to admit that he committed a crime."”
Establishes the improper prosecutorial comment about defendant's failure to confess and testify
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Join FLexlaw to unlock all legal intelligenceMarshall Long was charged with burglary. At trial, the prosecutor made improper comments during final argument, including a statement that defense cou…
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DAUKSCH, Judge.
This is an appeal from an order placing appellant on probation for burglary.
Appellant presents for our review a case of prosecutorial misconduct. Although there is some question as to whether one of the prosecutor’s improper comments was preserved for our review by a timely objection, there is no question about the other improper comment. The prosecutor told the jury on final argument "... (defense counsel) asks you to allow his client to walk out of here a free man with no record and never having had to admit that he committed a crime.” This comment was about appellant’s failure to confess and testify at trial. Later in the argument the prosecutor said “I haven’t heard any evidence that he thought this car belonged to one of his friends.” An objection followed this comment, but not the other. A timely motion for mistrial was made. Ed Ricke and Sons, Inc. v. Green, 468 So. 2d 908 (Fla.1985).
The evidence in this case was sufficient, in our opinion, to overcome the error so we affirm the conviction. However, we certify the same question we certified in Barry v. State, 467 So. 2d 434 (Fla. 5th DCA 1985), viz:
Has the Florida Supreme Court, by its agreement in State v. Murray, 443 So. 2d 955 (Fla.1984) with the analysis of the supervisory powers of appellate courts as related to the harmless error rule as set forth in United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), receded by implication from the per se rule of reversal of David v. State, 369 So. 2d 943 (Fla.1979) and Trafficante v. State, 92 So. 2d 811 (Fla.1957), where the prosecutor comments on defendant’s failure to testify at trial?
This is not to say we approve in the least the improper behavior of assistant state attorney Christopher White in departing from the proper ethical standards governing prosecuting attorneys.
AFFIRMED.
COWART, J., concurs.
SHARP, J., dissents with opinion.
SHARP, Judge,
dissenting.
I would reverse because I do not think the “harmless error rule” applies to comments at trial which impair a defendant’s constitutional rights to remain silent and not testify against himself. U.S. CONST, amend Y; Art. I, § 9, Fla.Const. Until the Florida Supreme Court mandates a contrary view, I think we should follow David v. State, 369 So. 2d 943 (Fla.1979) and Trafficante v. State, 92 So. 2d 811 (Fla.1957).
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Citator
Cited By
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Long v. State, 494 So. 2d 213 (Fla. 1986)…EHRLICH, Justice. We have before us two cases, Long v. State, 469 So. 2d 1 (Fla. 5th DCA 1985), and Barry v. State, 467 So. 2d 434 (Fla. 5th DCA 1985), which we have consolidated for our review. In both cases the Fifth District Court of Appeal certified the following question as being of great public importance: HAS THE F…
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Long v. State, 498 So. 2d 570 (Fla. 5th DCA 1986)…er is before this court after remand “for consideration in light of DiGuilio.” Long v. State, 494 So. 2d 213 (Fla.1986). It is our determination that there is a reasonable possibility the prosecutor’s comments, see original opinion Long v. State, 469 So. 2d 1 (Fla. 5th DCA 1985), were such that the error affected the verdict and that appellant is entitled to a new trial. So, the judgment is reversed and this cause remanded for new trial. REVERSED and REMANDED. SHARP and COWART, JJ., concur. . Stat…
Authorities Cited
- United States v. Hasting, 461 U.S. 499 (U.S. 1983)
- State v. Murray, 443 So. 2d 955 (Fla. 1984)
- Russ v. State, 92 So. 2d 811 (Fla. 1957)
- David v. State, 369 So. 2d 943 (Fla. 1979)
- ED Ricke & Sons, Inc. v. Green, 468 So. 2d 908 (Fla. 1985)
- In re the Adoption OF A.C.R. & C.W.R, 467 So. 2d 434 (Fla. 2d DCA 1985)