GLADYS J. JANIGA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gladys Janiga was convicted of burglary and grand theft by jury. The Florida appellate court reversed her convictions because the prosecutor improperly commented during closing argument on Janiga's failure to produce a witness (Robert Bottcher) to corroborate her testimony, thereby shifting the burden of proof to the defendant.
The prosecutor's comment on Janiga's failure to call Bottcher was improper and prejudicial because Bottcher was equally available to both parties and Janiga did not rely on an affirmative defense (alibi, self-defense, or defense of another) that would create an exception to the rule prohibiting such comments. The court found no reversible error regarding the prosecutor's questions about Janiga's silence, as the defendant herself first disclosed the matter and the trial court promptly ended the line of inquiry.
[1] A prosecutor may not comment on a defendant's failure to present evidence to refute an element of the crime charged, as this may improperly shift the burden of proof to t…
[2] A narrow exception to the prohibition against commenting on a defendant's failure to present evidence exists when the defendant asserts a defense, such as alibi or self-d…
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Join FLexlaw to unlock all legal intelligence“The law is well-settled that the State may not comment on the defendant's failure to present evidence to refute an element of the crime charged, because such could erroneously lead the jury to believe that the defendant has the burden of proving her innocence.”
Establishes the foundational rule prohibiting prosecutorial comments on a defendant's failure to produce evidence.
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Join FLexlaw to unlock all legal intelligenceJaniga, the victim, and Janiga's former boyfriend Robert Bottcher were drinking and smoking crack cocaine on the evening in question. Janiga testified…
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NORTHCUTT, Judge:
A jury convicted Gladys Janiga of burglary and grand theft.
On appeal, Janiga argues that the trial court should have declared a mistrial following the prosecutor’s impermissible comment on Janiga’s failure to produce a witness.
We agree, and reverse Janiga’s convictions. The defense theory focused on Janiga’s lack of conscious participation in the crimes. She testified that on the evening in question she, the victim, and Janiga’s former boyfriend, Robert Bottcher, were drinking and smoking crack cocaine. Janiga claimed that she became intoxicated to the point that she lost consciousness. According to Janiga, Bottcher was the true malefactor who planned and committed the burglary and grand theft. Bottcher was equally available to both the State and the defense to call as a witness, but neither party called him. During the State’s closing argument to the jury, the prosecutor questioned “Where was Mr. Bottcher? WTiere was Mr. Bottcher to confirm everything she had to say?” The comment elicited a defense objection, which was overruled, and a motion for mistrial, which was denied.
The law is well-settled that the State may not comment on the defendant’s failure to present evidence to refute an element of the crime charged, because such could erroneously lead the jury to believe that the defendant has the burden of proving her innocence. See Jackson v. State, 575 So. 2d 181, 188 (Fla.1991); Brown v. State, 593 So. 2d 1210, 1212 (Fla. 2d DCA 1992).
There is a narrow exception to this rule, when the defendant assumes some burden of proof by advancing the defense of alibi, self-defense, or defense of another, relying on facts that could be elicited only from a witness who is not equally available to. the State. See Jackson, 575 So. 2d at 188. But Janiga did not defend on any of those bases, and Bottcher was equally available to the State. The prosecutor’s comment on Janiga’s failure to call Bottcher as a witness was improper and prejudicial, and she is entitled to a new trial.
Janiga also contends the court erred by overruling objections to the prosecutor’s comments and questions concerning her election to remain silent when questioned by police. A prosecutor may not ask questions or make comments that are fairly susceptible of interpretation as a comment on the defendant’s right to remain silent, the vice being that the jury might infer guilt from the defendant’s silence. See State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla.1986); Carr v. State, 561 So. 2d 617 (Fla. 5th DCA 1990). However, such matters are subject to harmless error analysis. See Jackson v. State, 522 So. 2d 802, 807 (Fla.1988); DiGuilio, 491 So. 2d at 1135.
Here, the first party to disclose that Janiga had invoked her right to discontinue discussion with the investigating officer was Janiga herself during direct testimony in her case-in-chief. On cross-examination, the prosecutor asked Janiga several questions on the subject before defense counsel finally approached the bench and objected. The trial court ended that line of inquiry and directed the prosecutor to move to another subject. Under these circumstances, we find no reversible error. Finally, Janiga complains that when sentencing her the trial court imposed investigative costs that had not been requested. The State concedes that this was error. But, given our disposition of the first issue, this one is moot.
Reversed and remanded for a new trial.
PARKER, C.J., and BLUE, J., concur.
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Miele v. State, 875 So. 2d 812 (Fla. 2d DCA 2004)…roduce photographs of his father’s money jug. It is not permissible for the State to comment on the defendant’s failure to present evidence refuting an element of the charged crime. Jackson v. State, 575 So. 2d 181, 188 (Fla.1991); Janiga v. State, 713 So. 2d 1102, 1103 (Fla. 2d DCA 1998). The only exception to this rule applies when the defendant assumes some burden of proof by offering an affirmative defense and the witness is not equally available to the State. Hayes v. State, 660 So. 2d 257, 265 (Fla.1995…
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Conner v. State, 910 So. 2d 313 (Fla. 5th DCA 2005)…others, relying on facts that could only be elicited from a witness who is not equally available to the state. Jackson; White [*316] v. State, 757 So. 2d 542 (Fla. 4th DCA 2000); Davis v. State, 744 So. 2d 1091 (Fla. 5th DCA 1999); Janiga v. State, 713 So. 2d 1102 (Fla. 2d DCA 1998); D’Annunzio v. State, 683 So. 2d 151 (Fla. 5th DCA 1996).2 If one of these defenses is asserted, the burden descends upon the defendant to present proof sufficient to establish a reasonable doubt in the minds of the jurors. Flower…
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Carlisle v. State, 164 So. 3d 69 (Fla. 2d DCA 2015)…t know it was hot and stolen stuff.’ ” Not only is this statement susceptible to being interpreted as a comment on Carlisle’s right to remain silent but it also improperly suggests that Carlisle was required to present evidence. See Janiga v. State, 713 So. 2d 1102, 1103 (Fla. 2d DCA 1998) (“The law is well-settled that the State may not comment on the defendant’s failure to present evidence to refute an element of the crime charged, because such could erroneously lead the jury to believe that the defendant ha…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Jackson v. State, 575 So. 2d 181 (Fla. 1991)
- Jackson v. State, 522 So. 2d 802 (Fla. 1988)
- Brown v. State, 593 So. 2d 1210 (Fla. 2d DCA 1992)
- Carr v. State, 561 So. 2d 617 (Fla. 5th DCA 1990)