GUILLERMO TOMAS FUNDORA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Fundora appeals his convictions for sexual battery, aggravated assault, battery, and armed burglary. The Florida appellate court reversed and remanded for a new trial because the trial court impermissibly allowed testimony commenting on the defendant's post-arrest silence, which could not be found harmless beyond a reasonable doubt.
The court reversed the convictions and remanded for a new trial, holding that the impermissible comment on the defendant's post-arrest silence was not harmless error because the state failed to show beyond a reasonable doubt that the error did not affect the verdict.
[1] A comment on a defendant's post-arrest silence is impermissible, even if not induced by Miranda warnings.
[2] Any comment that is fairly susceptible of being interpreted as a comment on silence will be treated as such.
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Join FLexlaw to unlock all legal intelligence“It is impermissible to comment on the defendant's post-arrest silence whether or not that silence is induced by Miranda warnings.”
Establishes the fundamental rule that post-arrest silence comments are always prohibited
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Join FLexlaw to unlock all legal intelligenceThe defendant was arrested five days after an incident in which a victim alleged he entered her apartment, forced her to engage in non-consensual inte…
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PER CURIAM.
The defendant appeals his convictions for three counts of sexual battery, aggravated assault, battery, and armed burglary of a structure. We reverse and remand for a new trial.
At trial before a jury, the defendant’s arresting officer testified that five days after the incident forming the basis for the charges, he met the defendant and his father at the police station, and the defendant was then placed under arrest. The following exchange then took place between the witness and the prosecutor:
Prosecutor: Did you speak with the defendant?
Officer: Briefly.
Prosecutor: Did he say anything?
Officer: No. Defense counsel objected to the witness’ comment on the defendant’s silence and moved for mistrial. The trial judge withheld ruling on the motion but confirmed an error had occurred, stating:
I agree with you. The question is — I’ll grant you that it was error to allow that in. The question is, is it reversible error? Is it harmless error?
At trial, the victim accounted how the defendant had entered her apartment, forced her to engage in non-consensual intercourse, and then forced her to drive a short distance, where he exited her vehicle, and left the scene. The testimony of the medical expert called was inconclusive. While the case turned on the jury’s determination of the parties’ credibility, the trial judge, at the close of evidence, nonetheless denied the motion for mistrial.
It is impermissible to comment on the defendant’s post-arrest silence whether or not that silence is induced by Miranda warnings. Lee v. State, 422 So. 2d 928, 931 (Fla. 3d DCA 1982), review denied, 431 So. 2d 989 (Fla.1983). Any comment which is fairly susceptible of being interpreted as a comment on silence will be treated as such. State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.1986). Comment on defendant’s post-arrest silence is not harmless where evidence against the defendant is not clearly conclusive. Id. at 1138. See Chapman v. State, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The instant comment put before the jury the fact that the defendant had not offered any plausible explanation for the allegations against him.
The question in such cases is whether there is a reasonable possibility that the error affected the verdict. The burden rests on the state to show it was harmless. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful. DiGuilio, 491 So. 2d at 1139. Because we cannot conclude that the instant error did not affect the jury’s verdict, defendant’s convictions must be reversed and the case remanded.
Reversed and remanded.
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Citator
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State v. Hoggins, 718 So. 2d 761 (Fla. 1998)…nce. The courts continued to maintain that it was impermissible to comment on a defendant’s postarrest silence whether on not the silence was induced by Miranda warnings. See Smith v. State, 681 So. 2d 894, 895-(Fla. 4th DCA 1996); Fundora v. State, 634 So. 2d 255, 256 (Fla. 3d DCA 1994); Thompson v. State, 634 So. 2d 169, 170 (Fla. 1st DCA 1994); Hicks v. State, 590 So. 2d 498, 500 (Fla. 3d DCA 1991); Lee v. State, 422 So. 2d 928 (Fla. 3d DCA 1982), review denied, 431 So. 2d 989 (Fla.1983). Unlike prior deci…
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Smith v. State, 681 So. 2d 894 (Fla. 4th DCA 1996)…erpreted by the jury as a comment on the right of silence. State v. Smith, 573 So. 2d 306, 317 (Fla.1990). It is improper to comment on a defendant’s post-arrest silence, whether or not such silence was induced by Miranda warnings. Fundora v. State, 634 So. 2d 255 (Fla. 3d DCA 1994). Comments on a defendant’s right to silence are not harmless where the evidence against the defendant is not “clearly conclusive.” Id. As a result, such comments are subject to a harmless error analysis. State v. DiGuilio, 491 So.…
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Crittendon v. State, 681 So. 2d 920 (Fla. 1st DCA 1996)…to say that the prosecutor’s improper comment upon the appellant’s post-arrest silence was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986); Sharp v. State, 605 So. 2d 146, (Fla. 1st DCA 1992); Fundora v. State, 634 So. 2d 255 (Fla. 3d DCA 1994); J.D. v. State, 553 So. 2d 1317 (Fla. 3d DCA 1989); Wood v. State, 552 So. 2d 235 (Fla. 4th DCA 1989); Nixon v. State, 536 So. 2d 391 (Fla. 4th DCA 1989); Hosper v. State, 513 So. 2d 234 (Fla. 3d DCA 1987). The other arguments pre…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chapman v. California, 386 U.S. 18 (U.S. 1967)
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Ulysses LEE v. State, 422 So. 2d 928 (Fla. 3d DCA 1982)