TOMMY MITCHELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tommy Mitchell was convicted of possession of cocaine with intent to sell after police found cocaine at a property where he was arrested while fleeing. The Florida Fourth District Court of Appeal reversed for a new trial because the state prosecutor impermissibly commented on Mitchell's post-arrest silence in closing argument, violating state constitutional protections against such comments.
The court held that the prosecutor's closing argument impermissibly commented on appellant's post-arrest silence, constituting a violation of Florida's state constitutional law and requiring reversal for a new trial. The comment that 'If you're innocent, you stand there, you tell the cop why you're innocent, you don't take off running' was improper as it invited the jury to infer guilt from the defendant's silence following arrest.
[1] A prosecutor's comment on a defendant's post-arrest silence violates the state constitutional right against self-incrimination.
[2] A defendant's flight from police officers after being observed engaging in hand-to-hand transactions may be considered as evidence of guilt.
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Join FLexlaw to unlock all legal intelligence“If you're innocent, you stand there, you tell the cop why you're innocent, you don't take off running”
The prosecutor's improper closing argument that commentated on post-arrest silence, which formed the basis for reversal
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Join FLexlaw to unlock all legal intelligencePolice officers observed appellant engaging in hand-to-hand transactions with passengers in cars. Officers stopped at the property and appellant ran t…
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KLEIN, J.
Appellant was convicted of possession of cocaine with intent to sell. We reverse for a new trial because the state impermissi-bly commented on his right to remain silent after being arrested.
After three police officers observed appellant engaging in hand to hand transactions with passengers in cars, they stopped in front of the house where this activity was occurring. Appellant then ran to the rear of the property, but other officers were located there, and when they identified themselves, appellant tried to run but was arrested. The officers then found cocaine rocks in sufficient quantity to sup port the charge of possession with intent to .sell.
In closing argument the state improperly argued:
If you’re innocent, you stand there, you tell the cop why you’re innocent, you don’t take off running, (emphasis added).
Appellant objected and moved for a mistrial, but the objection was overruled.
In Ruiz v. State, 378 So. 2d 101, 102 (Fla. 3d DCA 1979), the defendant was apprehended while attempting to flee the scene of an attempted burglary, and the prosecutor made the following comment in closing argument:
Doesn’t it show you through the facts that you have heard when Officer Veski and when Officer Toreky came up and said that he walked back there, a police officer in uniform, and when he saw the Defendant Alvarez hit the fence, What did this man do? Did he stand there and say, ‘Officer, I am just trying to help this man out. I am just trying to talk him out of this.’ No, he didn’t.
The third district held that the defendant’s motion for mistrial should have been granted, citing cases prohibiting reference to a suspect’s failure to make a statement to an arresting or investigating police officer. Ruiz has been cited favorably by our supreme court in State v. Hoggins, 718 So. 2d 761 (Fla.1998), which recognized that our state constitutional law prohibits commenting on post-arrest silence.
Our reversal makes it unnecessary for us to address appellant’s argument that section 893.101, Florida Statutes (2003), which eliminated knowledge of the illicit nature of a controlled substance as an element of a possession offense, is unconstitutional. See Wright v. State, 30 Fla. Law Weekly D1495, - So. 2d -, 2005 WL 1398026 (Fla. 4th DCA Jun.15, 2005) (holding section 893.101 constitutional). Reversed for a new trial.
FARMER, J. and MILLER, KAREN A., Associate Judge, concur.
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Citator
Cited By
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Munroe v. State, 983 So. 2d 637 (Fla. 4th DCA 2008)…STONE, J., dissenting. I would affirm. In my judgment, the facts of this case are distinguishable from those in State v. Hoggins, 718 So. 2d 761 (Fla.1998), and Mitchell v. State, 911 So. 2d 1278 (Fla. 4th DCA 2005). I would recognize that the inquiry and comment here relate to pre-arrest silence and are not fairly susceptible of interpretation as a comment on the exercise of Munroe’s right to remain silent.…1 / 2
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Concha v. State, 972 So. 2d 996 (Fla. 4th DCA 2008)…right to remain silent is improper. Shabazz v. State, 928 So. 2d 1267, 1268-69 (Fla. 4th DCA 2006); see also Rodriguez v. State, 753 So. 2d 29, 37 (Fla.2000) (emphasizing that the “fairly susceptible” test is a very liberal rule); Mitchell v. State, 911 So. 2d 1278, 1279 (Fla. 4th DCA 2005) (citing Ruiz v. State, 378 So. 2d 101, 102 (Fla 3d DCA 1979) (noting that a prosecutor cannot comment on a suspect’s failure to make a statement to an arresting or investigating police officer)); Giorgetti v. State, 821 So.…
Authorities Cited
- State v. Hoggins, 718 So. 2d 761 (Fla. 1998)
- Ruiz v. State, 378 So. 2d 101 (Fla. 3d DCA 1979)