GEORGE WOOD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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George Wood appeals his cocaine trafficking conviction, arguing the prosecutor improperly commented on his silence at arrest and during trial. The Fourth District Court of Appeal agreed, finding reversible error and remanding for a new trial.
The court held that the prosecutor improperly commented on Wood's silence through both direct examination questions and closing argument. Although a prosecutor may respond when defense counsel opens the door to such comments, the extent and content of the prosecutor's response here went too far and constituted reversible error that was not harmless beyond a reasonable doubt.
[1] A prosecutor may not comment on a defendant's silence at the time of arrest or trial.
[2] A prosecutor's comment on a defendant's silence is improper when it suggests guilt.
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“Although the appellant contended the cocaine belonged to his travelling companion, if appellant made no statements about the cocaine and the state successfully proved joint possession by circumstantial evidence, there would be no direct proof of appellant's knowledge of the cocaine.”
Establishes why Wood's silence was material to his defense strategy and why the prosecutor's exploitation of that silence was particularly prejudicial.
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Join FLexlaw to unlock all legal intelligenceCocaine was found during a search, and Wood's defense was that it belonged to his traveling companion. At trial, the defense established through quest…
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GARRETT, Judge.
Appellant appeals his trafficking in cocaine conviction. He contends the prosecutor improperly commented on his silence at the time of arrest and trial. We agree and remand for a new trial. However, we find, appellant did not demonstrate reversible error as to the remaining points raised in his appeal. During trial, appellant’s attorney-asked a state witness:
Q. And after the cocaine was found, isn’t it true that you did not hear Mr. Wood make any statements?
A. That is correct.
This single question was vital to the defense. Although the appellant contended the cocaine belonged to his travelling companion, if appellant made no statements about the cocaine and the state successfully proved joint possession by circumstantial evidence, there would be no direct proof of appellant’s knowledge of the cocaine. See Hively v. State, 336 So. 2d 127 (Fla. 4th DCA 1976). The prosecutor then improperly asked a series of questions1 about what appellant did or did not say at and after the time of arrest. Cf. Hosper v. State, 513 So. 2d 234 (Fla. 3d DCA 1987) (reversible error to comment on failure to offer exculpatory statement). During closing argument, the prosecutor improperly urged the jury to consider appellant’s silence as evidence of guilt2. We recognize that a prosecutor can fairly respond to defense counsel “opening the door” with comment about a defendant’s silence, United States v. Robinson, 485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988), but considering the extent and content of the response, we conclude the prosecutor went too far. Because the jury could have considered appellant’s silence in determining that he had knowledge of the cocaine found by them to be jointly possessed, we cannot say the errors were harmless beyond a reasonable doubt. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
REVERSED AND REMANDED FOR A NEW TRIAL.
DELL, J., concurs.
GUNTHER, J., dissents without opinion.
. Q. [Prosecutor] Officer Brantley, do you remember Mr. De La Torre [Defense Counsel] asking you whether or not you heard Mr. Wood make any statements after the cocaine was found?
A. That is correct.
Q. And you didn’t, did you?
A. No, I didn’t.
Q. Among a number of things you didn't hear Mr. Wood ever denying the cocaine was his, true?
A. That is true.
Q. Did he ever say he was shocked at any time after he found the cocaine?
A. He didn’t.
Q. Did he ever take you aside and say, oh, my God, I don’t know where this came from or anything like that?
A. He didn’t.
Q. At any time at all during that entire ten or fifteen minute span, did this man after you whipped out that bag of cocaine, ever say anything to you or in your presence to any other officer to indicate, my God, I don’t know where this came from or what were you talking about, anything at all?
A. He didn’t.
. [Prosecutor] Common sense is your guide, the reactions of this defendant to the finding of the cocaine, the things he didn’t say, what does silence tell you? Sometimes more than anything anybody can say to you.
**
He in this case, he is his own direct proof a thousand times more convincing than any police officer will ever be because when he didn’t speak, he told you more than any police officer who takes the stand and testifies to you for hours ever will .. Listen to what he says ... and you will know whether or not the defendant is guilty.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Burgess v. State, 644 So. 2d 589 (Fla. 4th DCA 1994)…2d 254 (Fla.1991); Bain v. State, 552 So. 2d 283 (Fla. 4th DCA 1989). In the same vein, showing that the defendant did not make a statement until his testimony at trial is improper. Sharp v. State, 605 So. 2d 146 (Fla. 1st DCA 1992); Wood v. State, 552 So. 2d 235 (Fla. 4th DCA 1989); Starr v. State, 518 So. 2d 1389, 1391 (Fla. 4th DCA 1988); and Lowry v. State, 468 So. 2d 298 (Fla. 4th DCA 1985). There is no requirement in a sexual battery case that a defendant file a pretrial notice that consent is the def…
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Green v. State, 27 So. 3d 731 (Fla. 2d DCA 2010)…ce, if a defendant raises the issue of his own post-arrest silence, the State may respond. See United States v. Robinson, 485 U.S. 25, 32, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988); Ricardo v. State, 756 So. 2d 215, 216 (Fla. 4th DCA 2000); Wood v. State, 552 So. 2d 235, 236 (Fla. 4th DCA 1989). However, the extent and content of the State’s response is limited to a fair comment on the evidence of silence raised by the defendant. See Ricardo, 756 So. 2d at 216; Wood, 552 So. 2d at 236. Any comments that exceed the…
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Ricardo v. State, 756 So. 2d 215 (Fla. 4th DCA 2000)…the state may respond. See United States v. Robinson, 485 U.S. 25, 32, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988). However, the state’s response may be objectionable if its “extent and content” goes beyond the scope of a fair comment. See Wood v. State, 552 So. 2d 235, 236 (Fla. 4th DCA 1989). We are unable to make that determination on appeal because the record does not include a transcript of the state’s closing argument. We therefore reverse and remand for further proceedings on this allegation only.. The deni…
Previewing 3 of 4 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. Robinson, 485 U.S. 25 (U.S. 1988)
- van Griffin v. State, 336 So. 2d 127 (Fla. 1st DCA 1976)
- Hosper v. State, 513 So. 2d 234 (Fla. 3d DCA 1987)