SUSAN SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Susan Smith appeals her conviction for second-degree murder, challenging the trial court's denial of her mistrial motion based on the prosecutor's closing argument comments about her failure to call a witness. The appellate court affirmed the conviction, finding that any prosecutorial error was harmless in light of the trial court's curative instruction.
The appellate court affirmed the conviction, finding no reversible error. The court held that the prosecutor's comments were responsive to an issue raised by the defense during cross-examination, and any error was harmless given the trial court's curative instruction to the jury to ignore the prosecutor's comments.
[1] A prosecutor's comment on the defendant's failure to call a witness may be permissible if the defense first introduces the witness or the witness's potential testimony in…
[2] A curative instruction to disregard a prosecutor's improper comment may render the error harmless.
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“you will ignore the comment made by [the prosecuting attorney] concerning Mr. Dixon. You should ignore that comment completely.”
The trial court's immediate curative instruction to the jury, which the appellate court found sufficient to cure any error in the prosecutor's comments.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSmith and two co-defendants were charged with first-degree murder and kidnapping. During trial, James Meyers (a co-defendant who had plea-bargained) t…
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PER CURIAM.
Appellant and two others not involved in this appeal were charged by information with one count of first degree murder and one count of kidnapping. Appellant stood mute to the charges and the court entered a plea of not guilty for her. During the trial, James Meyers testified as a witness for the state.1 Counsel for appellant cross-examined Meyers, attempting, unsuccessfully, to elicit incriminating statements Meyers had made to Cleveland Dixon, who was Meyers’ cellmate after his arrest for this murder and kidnapping. After the state rested, appellant also rested, without presenting any evidence or testimony. A motion for judgment of acquittal was granted by the court solely on the kidnapping charge.
In his closing argument, the prosecuting attorney stated, inter alia :
The judge is going to tell you have to decide this case on the evidence, on the testimony that you heard. [Defendant’s attorney] comes up here and he throws these things in your face. Cleveland Dixon, what was Cleveland Dixon told? Who is Cleveland Dixon? Did you hear from Cleveland Dixon? If this Cleveland Dixon had anything relevant to hear from in this case—
There was an objection which the court sustained with an instruction to the jury: “Ladies and gentlemen, you will ignore the comment made by [the prosecuting attorney] concerning Mr. Dixon. You should ignore that comment completely.” The court denied appellant’s motion for a mistrial based on the prosecutor’s comments having misled the jury into believing appellant had a duty to present evidence or witnesses, in violation of her exercise of her fifth amendment rights.
The jury returned a verdict of guilty of the lesser included offense of second degree murder. The court so adjudicated appellant and imposed sentence. Appellant’s motion for a new trial was denied.
The issue on appeal is whether the trial court erred in denying the motion for a mistrial based on the prosecutor’s closing argument comments concerning appellant’s failure to call a witness, which comments, it is argued, may have led the jury to believe appellant had the burden of proving her innocence.
Having carefully reviewed the record and briefs on appeal, we find that no reversible error has been made to appear. The referred to prosecutorial comments were responsive to an issue injected into the trial by defense counsel’s cross-examination of the state witness regarding his prior inculpatory statements, see Pena v. State, 432 So. 2d 715 (Fla. 3d DCA 1983); Shapiro v. State, 345 So. 2d 361 (Fla. 3d DCA), cert. denied, 353 So. 2d 678 (Fla.1977). Moreover any error therein was harmless in view of the curative instruction given by the court. See Dunsford v. State, 399 So. 2d 91, 93 (Fla. 1st DCA), rev. denied, 411 So. 2d 381 (Fla.1981); Riley v. State, 367 So. 2d 1091 (Fla. 3d DCA 1979). See generally State v. DiGuilio, 10 F.L.W. 430, 432 (Fla. Aug. 29,1985) (reh’g pending) (receding from Florida’s per se rule of reversal when prosecution comments on defendant’s right to remain silent, and adopting harmless error test used in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983): “[a]bsent the comment on silence, is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?”).
Affirmed.
. Meyers was one of appellant’s co-defendants. Prior to trial, he entered into a plea agreement with the state and pled guilty to second degree murder in exchange for his testimony against appellant and a third co-defendant.
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Citator
Cited By
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Gonzalez v. State, 503 So. 2d 425 (Fla. 3d DCA 1987)…985); see also Rodriguez v. State, 493 So. 2d 1067 (Fla. 3d DCA 1986), and correctly denied defendant’s motion for mistrial. Under the circumstances of this case the error was harmless. See State v. Murray, 443 So. 2d 955 (Fla.1984); Smith v. State, 486 So. 2d 685 (Fla. 3d DCA 1986); Moore v. State, 483 So. 2d 512 (Fla. 4th DCA), review denied, 492 So. 2d 1334 (Fla.1986); see also Holland v. State, 503 So. 2d 1250 (Fla.1987). For these reasons, we affirm the convictions and sentences. . Florida Rule of Crim…
Authorities Cited
- Chapman v. California, 386 U.S. 18 (U.S. 1967)
- United States v. Hasting, 461 U.S. 499 (U.S. 1983)
- Shapiro v. State, 345 So. 2d 361 (Fla. 3d DCA 1977)
- Riley v. State, 367 So. 2d 1091 (Fla. 3d DCA 1979)
- Brown v. Pub. Health Tr. OF Dade Cnty., 432 So. 2d 715 (Fla. 3d DCA 1983)
- Dunsford v. State, 399 So. 2d 91 (Fla. 1st DCA 1981)