HORACE NIXON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Nixon was convicted of unarmed robbery, resisting arrest with violence, simple battery, and offering to commit lewdness following an alleged prostitution encounter with an undercover police officer. The Fourth District Court of Appeal reversed the convictions because the prosecutor unconstitutionally commented on Nixon's post-arrest silence during cross-examination and closing argument, violating his Fifth Amendment right to remain silent.
The court held that the cross-examination and closing argument constituted a clear and unconstitutional comment upon appellant's initial silence in the face of accusation in violation of his Fifth Amendment right to remain silent. The error is reversible under the circumstances because credibility of the appellant versus the officer was central to the entire case, precluding application of the harmless error rule. Additionally, on remand, only one conviction and sentence may be imposed for the robbery and battery arising from the single act.
[1] A prosecutor's cross-examination and closing argument commenting on a defendant's initial silence to arresting officers violates the defendant's constitutional right to r…
[2] An error in commenting on a defendant's initial silence is reversible when the case hinges on the credibility of the defendant versus a police officer.
Previewing 2 of 4 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“we hold, in conformity with a long line of authorities, that this cross-examination and closing argument constituted a clear comment upon appellant's initial silence in the face of accusation in violation of his constitutional right to remain silent.”
The court's holding that the prosecutor's questions and argument violated Nixon's Fifth Amendment right to remain silent.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceNixon, a transvestite, allegedly engaged in a prostitution encounter with undercover officer Caudill. Nixon claimed that during the sexual act, Caudil…
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DOWNEY, Judge.
Appellant was convicted of unarmed robbery, resisting arrest with violence, simple battery, and offering to commit lewdness. The charges grew out of a prostitution encounter between appellant, a transvestite, and an undercover police officer named Caudill. After the latter picked up appellant, they drove to a secluded spot where the performance was to take place. According to appellant, after he began performing fellatio on Caudill, Caudill stopped him in the act, pulled a gun, called him a “faggot,” and ordered him out of the car. Caudill claimed that no sexual activity occurred and that appellant grabbed his badge case containing some money. He said they struggled while appellant tried to take the case. During the struggle, appellant hit Caudill’s hand with his sandal and escaped from the car. A few hours later several officers found appellant asleep in a friend’s apartment where they took him into custody.
At trial appellant testified on his own behalf. During cross-examination the prosecutor asked appellant if he told the officers, when they arrested him, that Caudill had pulled a gun on him a few short hours before. Over objection, appellant answered that he did not tell them that. The prosecutor then asked if he told the arresting officers that he had just performed fellatio on Caudill, and he answered no. Later, to effectively drive the point home, the prosecutor, in closing argument, reminded the jury that appellant did not tell his current story to the arresting officers when he had the opportunity.
We hold, in conformity with a long line of authorities, that this cross-examination and closing argument constituted a clear comment upon appellant’s initial silence in the face of accusation in violation of his constitutional right to remain silent. Starr v. State, 518 So. 2d 1389 (Fla. 4th DCA 1988); Rodriguez v. State, 494 So. 2d 496 (Fla. 4th DCA 1986).
In this case, the error in allowing such comment is reversible because the entire case depends upon the jury’s perception of the credibility of appellant versus Caudill, the police officer. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986), would preclude application of the harmless error rule.
We treat appellant’s third point so that, should a new trial result in similar convictions, the trial court will be apprised of our position regarding dual convictions and sentences arising from the single act involved here, i.e., the robbery and the battery occurring in effectuating the robbery. On authority of Carawan v. State, 515 So. 2d 161 (Fla.1987), and Edwards v. State, 529 So. 2d 1213 (Fla. 4th DCA 1988), we hold only one conviction and sentence may be imposed.
Accordingly, we reverse the judgment and sentence appealed from and remand the cause for a new trial.
WETHERINGTON, GERALD T., Associate Judge, concurs.
GLICKSTEIN, J., concurs specially with opinion.
GLICKSTEIN, Judge,
concurring specially.
I agree with the analysis and result, and write only to inform readers that before issuing the opinion we confirmed from the records and files in this court that the facts in this case were dissimilar to those in Jones v. State, 528 So. 2d 490 (Fla. 4th DCA 1988), and Kotcherha v. State, 534 So. 2d 745 (Fla. 4th DCA 1988), wherein the charges arose from a related series of acts, rather than a discrete event arising from a single criminal intent.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Smith v. State, 539 So. 2d 514 (Fla. 2d DCA 1989)…nt’s exculpatory statements. No error occurred. See Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980); Watson v. State, 504 So. 2d 1267 (Fla. 1st DCA 1986), rev. denied, 506 So. 2d 1043 (Fla.1987). In contrast, Nixon v. State, 536 So. 2d 391 (Fla. 4th DCA 1989) found reversible error in the state’s questions to a defendant about whether he had given the same explanation of his behavior to the arresting officers as he gave at trial. The Nixon opinion does not specifically show whether th…
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Jordan v. State, 546 So. 2d 48 (Fla. 4th DCA 1989)…less error if the state proves beyond a reasonable doubt the comment did not contribute to the guilty verdict. We find the State has met its burden. Appellant testified at trial, but the case did not rest solely on his credibility. Nixon v. State, 536 So. 2d 391 (Fla.4th DCA 1989). The testimony of two defense witnesses corroborated appellant’s version of the facts. No one else testified as to the silence, nor did the prosecutor comment on it during closing argument. Starr v. State, 518 So. 2d 1389 (Fla.4th…
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Crittendon v. State, 681 So. 2d 920 (Fla. 1st DCA 1996)…1 So. 2d 1129 (Fla.1986); Sharp v. State, 605 So. 2d 146, (Fla. 1st DCA 1992); Fundora v. State, 634 So. 2d 255 (Fla. 3d DCA 1994); J.D. v. State, 553 So. 2d 1317 (Fla. 3d DCA 1989); Wood v. State, 552 So. 2d 235 (Fla. 4th DCA 1989); Nixon v. State, 536 So. 2d 391 (Fla. 4th DCA 1989); Hosper v. State, 513 So. 2d 234 (Fla. 3d DCA 1987). The other arguments presented by the appellant are without merit or are rendered moot by the disposition. The conviction is reversed and the case is remanded. ALLEN, WEBSTE…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Rodriguez v. State, 494 So. 2d 496 (Fla. 4th DCA 1986)
- Starr v. State, 518 So. 2d 1389 (Fla. 4th DCA 1988)
- Edwards v. State, 529 So. 2d 1213 (Fla. 4th DCA 1988)
- Kotcherha v. State, 534 So. 2d 745 (Fla. 4th DCA 1988)
- Jones v. State, 528 So. 2d 490 (Fla. 4th DCA 1988)