BARBARA HOLLOMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1991-01-09
No. 90-00748
SCHOONOVER, C.J., and HALL, J., concur.
573 So. 2d 134 Florida District Court of Appeal, Second District (1991) Positive Treatment
Cited by 2 cases

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Synopsis

Barbara Holloman was convicted by jury of three counts of delivery of cocaine and three counts of possession of cocaine. The appellate court reversed and remanded for a new trial, finding that the prosecutor's closing argument improperly commented on appellant's failure to testify, combined with other trial errors, violated her rights and could not be deemed harmless.


Holding

The prosecutor's comments were improper as they were fairly susceptible of being interpreted by the jury as comments on appellant's failure to testify. Combined with other errors in the record, the harmless error rule could not be applied, requiring reversal and remand for a new trial.


Headnotes

[1] A prosecutor's comment during closing argument that is susceptible of being interpreted by the jury as a comment on the defendant's failure to testify constitutes reversi…

[2] A comment on the defendant's failure to testify is not harmless error when other errors appear in the record and the comment is not harmless beyond a reasonable doubt.

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Key Quotes

“Because this comment so blatantly attacks appellant's failure to testify and because there are other errors appearing in the record, we are unable to apply the harmless error rule”

Establishes that the combination of prosecutorial comment on failure to testify and other errors precluded harmless error analysis

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Facts & Procedural History

The Pasco County Sheriff's Office used a confidential informant with a substantial prior record to conduct three controlled cocaine purchases from app…

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Opinion of the Court
CAMPBELL, Judge.

CAMPBELL, Judge.

Appellant, Barbara Holloman, challenges the judgment entered on a jury verdict finding her guilty of three counts of delivery of cocaine and three counts of possession of cocaine. Appellant raises numerous issues on appeal, only one of which we find to have sufficient merit to cause us to reverse and remand for a new trial.

While there appear to have been a number of errors committed during appellant’s trial, those errors alone were not sufficiently egregious to require reversal absent the prosecutor’s improper comment during closing argument regarding appellant’s failure to testify. Because this comment so blatantly attacks appellant’s failure to testify and because there are other errors appearing in the record, we are unable to apply the harmless error rule that was announced in State v. Marshall, 476 So. 2d 150 (Fla.1985).

The facts of this case show that the Pasco County Sheriff’s Office was using a confidential informant with a substantial prior record. On each of the three dates for which appellant was charged with the delivery of cocaine, the confidential informant was searched and fitted with a body bug. She was then driven to a residence where she was to purchase cocaine with money provided her in the form of serialized bills. There are no known eyewitnesses to the transactions other than the confidential informant. The first and the third purchases were evidenced by a tape recording that was played to the jury. The tape malfunctioned during the second purchase. On each occasion when the confidential informant exited the residence, she gave the supervising Pasco County Sheriff’s Office personnel crack cocaine which she stated she had purchased inside the residence from appellant. There is no identification of appellant or her voice on the tape other than by the confidential informant.

Appellant did not take the stand at trial. During closing argument by the prosecuting attorney, appellant’s attorney twice interposed objections for alleged improper comments by the prosecuting attorney on the evidence or on appellant’s failure to testify. In each instance, the court denied a motion for mistrial. Finally, however, the prosecutor, attempting to persuade the jury that the voice on the tape was appellant’s, stated:

There was no other female in that house when it was searched. And on that tape, selling that cocaine, was a woman’s voice, and there has been no rebuttal, no evidence from that stand to say other than it was the defendant on that tape, or to establish that there was someone, some other female living in that house.

We are convinced that, under the circumstances of this case, those comments by the prosecutor were fairly susceptible of being interpreted by the jury as comments on appellant’s failure to testify. State v. Kinchen, 490 So. 2d 21 (Fla.1985). We are unable to distinguish the circumstances in this case from those in Abreu v. State, 511 So. 2d 1111 (Fla. 2d DCA 1987). The' state here, as in Abreu, has not met the test of showing that the comment was harmless beyond a reasonable doubt. We, therefore, must reverse and remand this cause for a new trial.

SCHOONOVER, C.J., and HALL, J., concur.


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Citator

Cited By

  • Massengale v. State, 69 So. 3d 1095 (Fla. 1st DCA 2011)
    …mproperly commented in opening statement about Appellant’s constitutional right not to testify. The effect of the State’s improper remarks is subject to “harmless error” analysis. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986); Holloman v. State, 573 So. 2d 134 (Fla. 2d DCA 1991). Concluding that the State has met its burden under DiGuilio to show there is no reasonable possibility that this error affected the verdict, we affirm the convictions. See DiGuilio, 491 So. 2d at 1135. Appellant also asserts er…

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