ROY LYNN COLE, JR., APPELLANT/CROSS-APPELLEE,
v.
STATE OF FLORIDA, APPELLEE/CROSS-APPELLANT
PER CURIAM.
AFFIRMED.
PETERSON and GRIFFIN, JJ., concur.
DAUKSCH, J., dissents with opinion.
DAUKSCH, Judge,
dissenting.
The comments of the prosecutor regarding the defendant’s pre-arrest silence coupled with the judge’s permitting the jurors to direct questions to the witnesses coupled with the foreman of the jury asking if the defendant was going to testify created a violation of the defendant’s right to a fair trial. In my opinion there should be a rule prohibiting jurors from participating as examiners of witnesses and this case exemplifies the hazards inherent.
That the defendant is guilty is of little doubt but all accused persons are entitled to a fair trial. In addition to, in fact paramount to, the duty of a prosecütor to seek a conviction is the duty to assure a fair trial. It is justice the state, through the court, seeks, not anything less. To require a new trial is the only effective remedy for the most serious misconduct.
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Cole v. State, 700 So. 2d 33 (Fla. 5th DCA 1997)…ndent accounts of Cole’s suspicious behavior in the days following the attack. Cole received a departure sentence of life in prison along with two concurrent fifteen-year sentences. His conviction and sentence were affirmed on appeal. Cole v. State, 629 So. 2d 327 (Fla. 5th DCA 1994). In his 3.850 motion, Cole alleged that his trial counsel was ineffective in failing to investigate and present a defense as well as in failing to advise Cole of his right to testify on his own behalf at trial. To prevail on his…