CURTIS LEE JORDAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Curtis Lee Jordan appeals his conviction, arguing that trial testimony about his post-arrest silence violated his Fifth Amendment rights and constituted reversible error. The Florida Fourth District Court of Appeal holds that while the testimony was constitutional error, it was harmless beyond a reasonable doubt, and affirms the conviction but reverses the sentencing portion regarding costs and community service.
While the testimony about post-arrest silence was constitutional error, it was harmless error beyond a reasonable doubt because: (1) appellant testified at trial; (2) his testimony was corroborated by two defense witnesses; (3) no one else testified about the silence; and (4) the prosecutor did not comment on it during closing argument. However, the sentencing imposed with respect to costs and community service must be vacated and remanded for resentencing with consideration of the defendant's ability to pay.
[1] Comment on a defendant's silence after arrest is constitutional error, but may be harmless if the state proves beyond a reasonable doubt that the comment did not contribu…
[2] A comment on a defendant's post-arrest silence is harmless error when the defendant's testimony is corroborated by other witnesses and the prosecutor does not emphasize t…
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“In State v. DiGuilio, 491 So.2d 1129 (Fla.1986), Florida courts receded from the per se rule of reversal when there was trial comment on a defendant exercising the right to remain silent. The comment remains constitutional error, but can be determined to be harmless error if the state proves beyond a reasonable doubt the comment did not contribute to the guilty verdict.”
Establishes the legal standard for evaluating trial comments on post-arrest silence, shifting from automatic reversal to a harmless error analysis.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAfter appellant and others were arrested, a trooper testified that he read them their rights and asked them to respond verbally to confirm understandi…
The full statement of facts, procedural history, and disposition for this case are member content.
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GARRETT, Judge.
We address whether admitting testimony of appellant’s silence after his arrest constituted reversible error. Appellant objected to the following testimony:
[BY TROOPER BINDER]: ... After all the Defendants had been placed under arrest ..., I had read each one of those — each one of them their rights, asked them if they understood them, made them respond verbally. They all responded verbally that they understand their rights. Mr. Knight and Mr. Jordan really didn’t make any state—
[BY THE PROSECUTOR]: Let — let me ask you, after their rights were read what did you do then?
A. I attempted to question Mr. Knight and Mr. Jordan. They did not seem to want to answer any questions.
In State v. DiGuilio, 491 So. 2d 1129 (Fla.1986), Florida courts receded from the per se rule of reversal when there was trial comment on a defendant exercising the right to remain silent. The comment remains constitutional error, but can be determined to be harmless 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 DCA 1988). The potential harm of such comment is that the jury might conclude defendant’s trial testimony is a recent fabrication because his version of the facts was not initially told to the investigating officer. Such potential is negated sub judice.
Nevertheless, as conceded by the State, the sentence imposing costs and community service must be vacated. Upon remand, the defendant shall be given the opportunity to be heard as to his ability to pay costs. Shipley v. State, 528 So. 2d 902 (Fla.1988); Jenkins v. State, 444 So. 2d 947 (Fla.1984). Community service cannot be an alternative to indigent defendants paying costs. § 27.3455, Fla.Stat. (1987).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR RESEN-TENCING CONSISTENT HEREWITH.
DOWNEY and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Shipley v. State, 528 So. 2d 902 (Fla. 1988)
- Starr v. State, 518 So. 2d 1389 (Fla. 4th DCA 1988)
- Nixon v. State, 536 So. 2d 391 (Fla. 4th DCA 1989)