OLLIE MAE RICHARDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ollie Mae Richardson was convicted of attempted murder with a firearm. The Florida appellate court reversed and remanded for a new trial because the prosecutor improperly commented during closing argument on the defendant's failure to call a witness, violating the court's own motion in limine and constituting reversible error.
The prosecutor's comment constituted reversible error because the witness was equally available (or equally unavailable) to both parties, and commenting on a party's failure to call such a witness is improper. The trial court should have granted the defendant's motion for a new trial.
[1] A prosecutor's comment on the defense's failure to call a witness is reversible error when the witness is equally available to both parties.
[2] A prosecutor's argument that the defense "opened the door" to commenting on a witness's absence is without merit when the prosecutor previously obtained a motion in limin…
Previewing 2 of 3 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“When a witness with relevant testimony is equally available to both parties, no inference should be drawn or comments made on the failure of a party to call the witness.”
Establishes the legal standard that prosecutors cannot comment on a defendant's failure to call witnesses who are equally available to both sides.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFadie Mae Clarkson was present at the shooting and was seen with a gun afterward, making her a potential suspect and relevant witness. The state liste…
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BLUE, Judge.
Ollie Mae Richardson appeals her conviction for attempted murder with a firearm. She contends the trial court should have granted her motion for new trial due to the state’s improper final argument. We agree the prosecutor’s rebuttal argument created reversible error, and we remand for a new trial.
The record reflects that the trial court granted the state’s motion in limine prohibiting the defense from commenting on the state’s failure to call witnesses. A potential witness, Fadie Mae Clarkson, was present at the shooting and had been seen with a gun after the shooting. She had been a suspect at one time. Ms. Clarkson was subpoenaed by the defense for deposition but failed to appear. Ms. Clarkson was listed by the state on its witness list and was subpoenaed for trial and again failed to appear. The state had the trial court issue a writ of attachment for Ms. Clarkson, but it was never successfully executed. She did not testify at trial.
During the rebuttal portion of his closing argument, the prosecutor commented on the defendant’s failure to call this witness to testify. In a portion of his comment he stated:
Fadie Mae. Where is Fadie Mae? That is what he wants to know. He served her for deposition. Did they try to serve her for trial? This is trial day. This is where there is a showdown. This is it right now. They never served her for trial. Well, still, where is Fadie Mae?
Commenting that the defense did not call a certain person as a witness is sometimes reversible error. Allen v. State, 320 So. 2d 828 (Fla. 4th DCA 1975). When a witness with relevant testimony is equally available to both parties, no inference should be drawn or comments made on the failure of a party to call the witness. State v. Michaels, 454 So. 2d 560 (Fla.1984). Ms. Clarkson’s testimony may have been relevant. The witness, however, was equally available, or in this case, equally unavailable to both parties.
Upon review of the record, we conclude the state’s argument that the defendant “opened the door” is without merit. The prosecutor’s comment constituted reversible error, especially in light of the state’s motion in limine to prevent such a comment. The trial court should have granted the defendant’s motion for a new trial.
Reversed and remanded.
LEHAN, C.J., and ALTENBERND, J., concur.
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Citator
Authorities Cited
- State v. Michaels, 454 So. 2d 560 (Fla. 1984)
- Allen v. State, 320 So. 2d 828 (Fla. 4th DCA 1975)