THOMAS W. DIXON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Comments made by the prosecutor during closing argument that were susceptible to interpretation as comments on the defendant's silence constitute reversible error unless the state proves beyond a reasonable doubt that the error did not contribute to the verdict.
The defendant was charged with aggravated child abuse. During closing arguments, the prosecutor made remarks implying the defendant's silence and fail…
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PATTERSON, Judge.
This appeal arises from a prosecution for aggravated child abuse. Both the appellant, Thomas W. Dixon, and the child’s mother, Gloria Snell, were charged with the abuse of Snell’s fourteen-month-old child. Snell pled guilty and testified on behalf of the state, placing the primary blame on Dixon. Dixon did not testify.
During closing argument, the prosecutor told the jury:
He was abused by both parents. But only one parent has come in here and admitted what she did was wrong. Only one parent has come in here and testified that she’s going to prison.
Dixon’s counsel made a timely objection and motion for mistrial. Without ruling on the objection, the trial court denied the motion.
In final summation, the prosecutor said:
The defendant has said he’s not guilty. He’s pled not guilty. He has not accepted his responsibility. He’s not admitted his guilt.
The trial court overruled Dixon’s objection and said to the prosecutor, “Go ahead.”
Comments which are “fairly susceptible” of being interpreted as comments on a defendant’s silence are reversible error unless the state can prove beyond a reasonable doubt that the error did not contribute to the verdict. State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.1986). The prosecutor’s remarks clearly implied that Dixon failed to testify on his own behalf. Since Dixon was the only one who could refute the testimony of the state’s key witness, the child’s mother, the remarks were prejudicial and constituted reversible error. See Abreu v. State, 511 So. 2d 1111 (Fla. 2d DCA 1987). The state failed to prove beyond a reasonable doubt that the error did not contribute to the verdict; therefore, Dixon is entitled to a new trial.
Reversed and remanded for further proceedings.
RYDER, A.C.J., and ALTENBERND, J., concur.
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Citator
Cited By
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Green v. State, 27 So. 3d 731 (Fla. 2d DCA 2010)…, 422 (Fla. 4th DCA 2002); see also State v. Smith, 573 So. 2d 306, 317 (Fla.1990) (“[Cjourts must prohibit all evidence or argument that is fairly susceptible of being interpreted by the jury as a comment on the right of silence.”); Dixon v. State, 627 So. 2d 19, 20 (Fla. 2d DCA 1993) (holding that com [*736] ments that are “fairly susceptible” to being interpreted as comments on the defendant’s silence are generally reversible error). Here, Detective Kent’s response that Green “refused” to give a statemen…
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Crawford v. State, 663 So. 2d 676 (Fla. 4th DCA 1995)…129, 1135 (Fla.1986). This prosecutor’s commendation of the accomplices for admitting their guilt in this crime was susceptible of being interpreted as a comment on defendant’s silence, just as was the prosecutor’s comment in Dixon v. [*678] State, 627 So. 2d 19 (Fla. 2d DCA 1993). In that case both the defendant and the child’s mother were charged with child abuse, and the mother testified against the defendant. In closing the prosecutor argued: He was abused by both parents. But only one parent has come…
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Kalivretenos v. State (Fla. 4th DCA 2020)…s, 718 So. 2d at 769. “[A]ny remark which is ‘fairly susceptible’ of being interpreted as a comment on silence creates a ‘high- risk’ of error.” Dean v. State, 690 So. 2d 720, 724 (Fla. 4th DCA 1997) (citations omitted); see also Dixon v. State, 627 So. 2d 19, 20 (Fla. 2d DCA 1993) (recognizing that comments which are “fairly susceptible” of being interpreted as comments on silence are generally reversible error). Here, the trial court erred by allowing the State to breach the pre-trial agreement…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Alphonso Peterson v. State, 511 So. 2d 1111 (Fla. 1st DCA 1987)