MARSHALL CHRISTOPHER LONG, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT; STEPHEN MITCHELL BARRY, PETITIONER, V. STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court answered a certified question of great public importance regarding whether prosecutorial comments on a defendant's failure to testify are subject to harmless error analysis rather than the per se reversal rule. The Court affirmed its recent DiGuilio decision holding that such comments are subject to harmless error analysis and remanded both cases for reconsideration under the correct standard.
The Court answered the certified question affirmatively, holding that prosecutorial comments on a defendant's silence are subject to harmless error analysis, not automatic reversal. The proper harmless error test focuses on whether there is a reasonable possibility the error affected the verdict, with the burden on the state to show harmlessness beyond a reasonable doubt.
[1] Prosecutor comments on a defendant's failure to testify at trial are subject to harmless error analysis.
[2] Harmless error analysis focuses on the effect of an error on the trier-of-fact, not on the sufficiency of the evidence.
Previewing 2 of 5 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“The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.”
This establishes the proper harmless error test for prosecutorial comments on defendant silence, rejecting sufficiency-of-evidence and overwhelming evidence standards.
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Join FLexlaw to unlock all legal intelligenceTwo consolidated cases involved prosecutorial comments potentially related to defendants' failure to testify. In Long, the Fifth District affirmed con…
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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 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?
We have jurisdiction, article V, section 3(b)(4), Florida Constitution, and answer the question in the affirmative.
In our recent decision on rehearing of State v. DiGuilio, 491 So. 2d 1129 (Fla.1986), we answered virtually the identical question in the affirmative, holding that comments on a defendant’s silence are subject to harmless error analysis. We ex plained the proper test that appellate courts must apply when performing a harmless error analysis:
The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.
At 1139.
In both cases below the district court applied an incorrect standard. In Long, the Court stated “the evidence in this case was sufficient, in our opinion, to overcome the error so we affirm the conviction.” 469 So. 2d at 1. In Barry, the Court stated: “The evidence of guilt here is overwhelming, so if the comment was erroneous, it was harmless.” 467 So. 2d at 437.*
Accordingly, we quash the decision of the district court in both cases and remand for consideration in light of DiGuilio.
It is so ordered.
McDonald, C.J., and BOYD, OVER-TON, SHAW and BARKETT, JJ., concur. ADKINS, J., concurs in result only.
*
We disagree with the district court’s suggestion in Barry that the prosecutor’s statement, ”[h]e still hasn’t told the truth,” was merely a comment on the evidence presented at trial. 467 So. 2d at 435. This statement is fairly susceptible of being construed as a comment on the defendant’s failure to testify.
Cases With Similar Vibessemantic neighbors from the corpus
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Rosso v. State, 505 So. 2d 611 (Fla. 3d DCA 1987)…s did not contribute to the guilty verdicts. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). The state’s attempt to fulfill its burden through reliance upon the “overwhelming” evidence against Rosso misconstrues the proper standard. In Long v. State, 494 So. 2d 213 (Fla.1986), the Florida supreme court specifically held that the sufficiency or overwhelming nature of the evidence was not the correct standard by which to analyze harmless error. The court instead repeated its pronouncement in DiGuilio that the bu…
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Crayton v. State, 536 So. 2d 399 (Fla. 5th DCA 1989)…e prosecutor to comment on a matter outside the record. It is equally clear, however, beyond any reasonable doubt, that the comment did not affect the defendant’s convictions, which were inevitable in light of the trial testimony. See Long v. State, 494 So. 2d 213 (Fla.1986); State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). Therefore, we reject appellant’s claim of entitlement to a new trial on this ground. The appellant also contends that he cannot be convicted under both section 790.19, Florida Statutes (198…
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Freeman v. State, 538 So. 2d 936 (Fla. 2d DCA 1989)…falls within the scope of appellate review. Id. We need not, however, undertake an extended analysis of this point. Our supreme court has left no doubt that the presence of “overwhelming evidence” is not the measure of harmless error, Long v. State, 494 So. 2d 213 (Fla.1986), and the burden falls to the state to convince the reviewing court that the error is harmless. 491 So. 2d at 1139. It is obvious in the face of Long that the state has failed to meet its burden. Another detective recounted an unrecorded…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- 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)
- In re the Adoption OF A.C.R. & C.W.R, 467 So. 2d 434 (Fla. 2d DCA 1985)
- Long v. State, 469 So. 2d 1 (Fla. 5th DCA 1985)