DEVIRAL BAIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Florida appellate court reversed Deviral Bain's conviction on two counts of robbery because the prosecutor's questions and closing argument improperly commented on the defendant's Fifth Amendment right to remain silent and failure to testify. The court found the prosecutor's conduct constituted reversible error given the weak evidence and improper nature of the remarks.
The court reversed the conviction, holding that the prosecutor's question and imaginary scenario improperly drew the jury's attention to the defendant's exercise of his right to remain silent and failure to testify. The error was not harmless given the tenuous nature of the evidence, and the trial court erred in denying the mistrial motions.
[1] A prosecutor's argument is improper and prejudicial if it draws the jury's attention to the defendant's exercise of the right to remain silent or failure to testify.
[2] A prosecutor's unanswered question during redirect examination of an officer, which asks if the defendant ever stated his involvement in a robbery, may be interpreted as…
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“We reverse the appellant's conviction on two counts of robbery because argument by the state was susceptible to interpretation as a comment on the defendant's silence and his decision not to testify.”
Statement of the court's holding and the primary basis for reversal.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDuring trial, the prosecutor asked an officer "Did he ever say whether or not he was involved in a robbery?" regarding the defendant, with no prior co…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Comment On Defendant'S Silence cases and more on FLexlaw
STONE, Judge.
We reverse the appellant’s conviction on two counts of robbery because argument by the state was susceptible to interpretation as a comment on the defendant’s silence and his decision not to testify.
The subject of the defendant’s Fifth Amendment right was first raised during voir dire. There were questions by the prosecutor concerning a prospective juror’s understanding of the defendant’s right to remain silent, which prompted a motion for mistrial. There was an extensive exchange on the subject between the prospective juror and the court, and a subsequent warning by the court to the state. The subject was again raised during the redirect examination of an officer, when the state, in referring to the defendant, asked: “Did he ever say whether or not he was involved in a robbery?” Following a conference between the court and counsel, the question was not pursued. A motion for mistrial was denied because the officer did not answer the question.
We note that there was nothing in the record with respect to anything said at the scene, or in the prior testimony, to prompt this question. During final argument the prosecutor told the jury an imaginary story about a stop of a hypothetical suspect with the same name as the defendant by an officer named “John Q. Public”. The story recounted a fanciful conversation in which the suspect said “[m]y name is Deviral Bain. You have no right stopping me, I am leaving ...” A motion for a mistrial was denied. The defense also requested a curative instruction but none was given. After a conference with the court, the state dropped this line of argument.
We perceive a substantial risk that the jury might infer, from the unanswered question and the imaginary scenario, that the state was implying that a conversation had occurred as indicated. The question and the argument were improper and prejudicial. They drew the jurors’ attention to the defendant’s exercise of his right to remain silent and his failure to testify, not to mention misleading the jury with respect to what might have been said. It was therefore error to deny a mistrial. E.g., State v. Kinchen, 490 So. 2d 21 (Fla.1985); State v. Marshall, 476 So. 2d 150 (Fla.1985); Trafficante v. State, 92 So. 2d 811 (Fla.1957); Ryan v. State, 457 So. 2d 1084 (Fla. 4th DCA 1984), rev. denied, 462 So. 2d 1108 (Fla.1985).
We cannot say, given the tenuous nature of the evidence, that the error was harmless. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). Nor do the appellant’s motions for mistrial appear to be untimely. See State v. Cumbie, 380 So. 2d 1031 (Fla.1980). As to the other issue raised, we find no error. See State v. Law, 14 F.L.W. 387 (Fla. July 27, 1989).
DOWNEY and DELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Burgess v. State, 644 So. 2d 589 (Fla. 4th DCA 1994)…strial. It is improper for a prosecutor to make a statement that is “fairly susceptible” of being understood as a comment on a defendant’s right to silence under the Fifth [*593] Amendment. Dailey v. State, 594 So. 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. Stat…
-
Holmes v. State, 757 So. 2d 620 (Fla. 3d DCA 2000)…fendant testified at trial that he did not burglarize the car. We find that use of such a hypothetical constituted an impermissible comment by the State on Holmes’ exercise of his right to remain silent and his failure to testify, see Bain v. State, 552 So. 2d 283, 284 (Fla. 4th DCA 1989) (reversing on a similar hypothetical where the defendant explains his behavior), and provides the second basis for our reversal. Reversed and remanded.…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Russ v. State, 92 So. 2d 811 (Fla. 1957)
- State v. Cumbie, 380 So. 2d 1031 (Fla. 1980)
- State v. Marshall, 476 So. 2d 150 (Fla. 1985)
- Ryan v. State, 457 So. 2d 1084 (Fla. 4th DCA 1984)
- State v. Kinchen, 490 So. 2d 21 (Fla. 1985)