JASON KILEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Fourth District Court of Appeal affirmed Jason Kiley's conviction and sentence, holding that although the trial court's preliminary remarks during jury selection may have deviated from the standard jury instruction regarding the right to remain silent and burden of proof, any error was harmless because the evidence of guilt was overwhelming and the court ultimately read the proper instruction after the jury was sworn.
Although the trial court's preliminary comments did not accurately reflect Florida Standard Jury Instruction 1.01 and constituted error, the error was harmless because the evidence of guilt was overwhelming, the proper instruction was read after the jury was sworn, and the trial judge at no time devalued or demeaned the defendant's right to remain silent.
[1] A claim that a trial court's introductory remarks to a venire during jury selection were improper comments on a defendant's right to remain silent and burden of proof is…
[2] Even if a trial court's preliminary comments at the start of jury selection do not accurately reflect standard jury instructions, the conviction may be affirmed if the co…
Previewing 2 of 5 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“even a cursory reference to the right to remain silent is impermissible”
Establishes the strict Florida rule regarding jury instructions about the defendant's right to remain silent
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Join FLexlaw to unlock all legal intelligenceDuring jury selection, the trial court made introductory remarks to the venire that appellant claimed improperly commented on his right to remain sile…
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SHAHOOD, J.
We affirm appellant’s judgment of conviction and sentence. Appellant’s claim that the trial court’s introductory remarks to the venire during jury selection were improper comments on his right to remain silent and on his burden of proof was unpreserved. See Goodwin v. State, 751 So. 2d 537 (Fla.1999); Gutierrez v. State, 731 So. 2d 94 (Fla. 4th DCA 1999). Even if preserved, and we conclude that the trial court’s preliminary comments at the start of jury selection did not accurately reflect Florida Standard Jury Instruction 1.01, we would affirm. As in Daymon v. State, 744 So. 2d 581 (Fla. 2d DCA 1999), the judge’s comments in this case were presented in a conversational manner. After the jury was sworn, however, the judge did in fact read the proper instruction. Under Varona v. State, 674 So. 2d 823 (Fla. 4th DCA 1996), even a cursory reference to the right to remain silent is impermissible. See also Andrews v. State, 443 So. 2d 78 (Fla.1983). Thus, a harmless error analysis must be conducted. See Varona, 674 So. 2d at 825.
Under a harmless error analysis, the state proved beyond a reasonable doubt that the trial judge’s comment did not contribute to the verdict. Unlike Varona, the evidence in this case was overwhelmingly conclusive. Hence, the trial court’s comments did not contribute to appellant’s guilty verdict. See Varona, 674 So. 2d at 825; State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
At no time did the court, in the context of discussing a defendant’s right to remain silent, devalue or demean that right.
We affirm as to all other issues raised on appeal, without comment, including appellant’s sentence as a habitual violent felony offender. AFFIRMED.
KLEIN and GROSS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Goodwin v. State, 751 So. 2d 537 (Fla. 1999)
- Lucious Andrews, Jr. v. State, 443 So. 2d 78 (Fla. 1983)
- Varona v. State, 674 So. 2d 823 (Fla. 4th DCA 1996)
- Raffone v. Fort Lauderdale Police Dep't, 731 So. 2d 94 (Fla. 4th DCA 1999)
- Gutierrez v. State, 731 So. 2d 94 (Fla. 4th DCA 1999)
- Daymon v. State, 744 So. 2d 581 (Fla. 2d DCA 1999)