CARLOS RUBEN RODRIGUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Carlos Rodriguez's convictions for trafficking in and possessing cocaine were reversed because the prosecutor improperly shifted the burden of proof to the defense by commenting on the defendant's failure to call his wife as a corroborating witness. The court held that such comments violate fundamental principles of criminal procedure when made without narrow exceptions.
Yes. Except in narrow circumstances not present here, the State may not comment on a defendant's failure to call a witness as such comments improperly shift the burden of proof to the defendant. Because this trial was a credibility contest between two witnesses and whether Carlos was repairing the truck was central to the defense, the prosecutor's error was not harmless and requires reversal.
[1] A prosecutor improperly shifts the burden of proof by commenting on a defendant's failure to call a witness, except in narrow circumstances.
[2] A prosecutor's improper comment on a defendant's failure to call a witness is not harmless error when the trial is a credibility contest and the witness's testimony is ce…
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Join FLexlaw to unlock all legal intelligence“the State may not comment on a defendant's failure to call a witness. Janiga v. State, 713 So.2d 1102 (Fla. 2d DCA 1998)”
Establishes the foundational rule prohibiting the prosecutor from commenting on defendant's failure to call witnesses
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDavid Seheffler testified for the State that he saw Carlos at Juan's house helping package cocaine for sale to an informant and that Carlos pointed ou…
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NORTHCUTT, Judge.
Carlos Rodriguez contends that his convictions for trafficking in cocaine and possession of cocaine must be reversed because the prosecutor’s questions and arguments at Rodriguez’s trial improperly shifted the burden of proof to him. We agree.
This case involved a credibility contest between David Seheffler and Juan Rodriguez (who is not related to Carlos). These men were the subject of an ongoing investigation by the Hillsborough County Sheriffs Office, and both pleaded guilty to the charges arising out of this case. Seheffler testified as a State witness and placed Carlos at Juan’s house, helping to package fake cocaine for sale to a confidential informant named JT. According to Seheffler, Carlos said they needed to add real cocaine for taste. Seheffler also recounted that as he and Carlos stood in front of the grocery store where the buy was to take place, Carlos pointed out police surveillance, causing them to change locations.
Juan testified for the defense. He denied that Carlos was involved in the deal. According to Juan, he and Seheffler prepared for the deal inside Juan’s house while Carlos was outside repairing Juan’s '89 Bronco. Juan testified that Carlos only rode along to the grocery store because Juan told him he was meeting a friend who owed him money, and he could then pay Carlos for the car repairs and give him a ride home. Juan said that Carlos did not get out of the car at the grocery store. During cross-examination and over objection, the prosecutor asked Juan whether his wife was home on the three days that Carlos was allegedly working on the car and whether she could come testify about that. In closing argument and over objection, the prosecutor argued that Juan’s wife was home while Carlos was allegedly working on the car and she was “sitting at home right now.” The prosecutor also argued that there were no receipts to document the auto repairs.
Except in narrow circumstances not present here, the State may not comment on a defendant’s failure to call a witness. Janiga v. State, 713 So. 2d 1102 (Fla. 2d DCA 1998) (reversing for new trial because State commented on defendant’s failure to call witness to confirm defendant’s testimony). Such a comment improperly shifts the burden of proof from the State to the defendant. Morgan v. State, 700 So. 2d 29 (Fla. 2d DCA 1997). Because this trial was a credibility contest between two witnesses and the issue of whether Carlos was repairing Juan’s car was central to the defense, the error was not harmless. Accordingly, we reverse on this issue.
Carlos raises a second issue concerning the State’s use of a taped conversation at trial. We see no error because the tape was offered for impeachment and was not, therefore, inadmissible hearsay offered to prove the truth of the matter asserted. See Fleming v. State, 457 So. 2d 499, 503 n. 1 (Fla. 2d DCA 1984).
Reversed and remanded for new trial.
ALTENBERND, C.J., and KELLY, JJ., Concur.
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Citator
Authorities Cited
- Fleming v. State, 457 So. 2d 499 (Fla. 2d DCA 1984)
- Janiga v. State, 713 So. 2d 1102 (Fla. 2d DCA 1998)
- Morgan v. State, 700 So. 2d 29 (Fla. 2d DCA 1997)