ISMAIL MALIK SHABAZZ A/K/A WARNER MCCULLOUGH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ismail Malik Shabazz appeals his second-degree murder conviction, arguing the prosecutor improperly commented on his right to remain silent during cross-examination by asking whether he had told his self-defense story to anyone before trial. The appellate court reversed the conviction and remanded for a new trial, finding the prosecutorial misconduct was not harmless error in this close case.
The prosecutor's question was an improper comment on Shabazz's right to remain silent, and the error was not waived despite the trial court's later offer of a curative instruction. The error was not harmless because the evidence was inconclusive and the case turned on credibility determinations the jury had to make.
[1] A prosecutor's question implying a defendant's testimony is recently fabricated, which is fairly susceptible of being interpreted by the jury as a comment on the defendan…
[2] In a close case with conflicting evidence, an improper prosecutorial comment on a defendant's right to remain silent may constitute reversible error if there is a reasona…
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Join FLexlaw to unlock all legal intelligence“The prosecutor's question was fairly susceptible of being interpreted by the jury as a comment on Shabazz's right to remain silent and therefore was improper.”
Establishes that the prosecutor's cross-examination question asking if Shabazz had told his story before trial violated his constitutional rights.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceShabazz was charged with second-degree murder after a shooting incident at a victim's house. The state's witnesses testified that Shabazz and an accom…
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Associate Judge.
Ismail Malik Shabazz appeals his conviction for second degree murder. The facts reveal two widely different stories in the case. The state’s witnesses testified at trial that Shabazz and an accomplice attempted to rob the victim and shot at him, critically injuring him. The state conceded that the victim returned fire. Additional evidence suggested drug sales were involved. Shabazz was identified by a computer book he dropped at the scene. An arrest warrant was issued and he was taken into custody in central Florida.
The victim’s wife originally told investigators that her husband shot first. At trial, she testified that Shabazz shot first.
Shabazz testified as the last witness in the case. In contrast to the state’s evidence, he testified that he went to the victim’s house to buy cocaine. The victim started shooting at him. He shot back in self-defense and fled.
Clearly, the testimony framed classic conflicting versions of events that a jury would have to reconcile. The physical evidence was inconclusive as to who shot first.
During the cross-examination of Shabazz, the prosecutor, in his zeal to imply that Shabazz’s story was recently fabricated, asked: “This is the first time you’ve told your version of the events, right here to this jury, you’ve never told it to anybody else before, have you?” Defense counsel objected and moved for a mistrial based on the prosecutor’s impermissible comment on Shabazz’s right to remain silent. The trial court overruled the objection, denied the mistrial, and cross-examination proceeded. The prosecutor’s question was fairly susceptible of being interpreted by the jury as a comment on Shabazz’s right to remain silent and therefore was improper. See State v. Hoggins, 718 So. 2d 761 (Fla.1998); Robbins v. State, 891 So. 2d 1102.(Fla. 5th DCA 2004). The evidence against Shabazz was not conclusive. In this close case of conflicting stories where the jury had to decide whom to believe, there is a reasonable possibility that the error affected the verdict.
The state suggests that Shabazz waived the error by rejecting a curative instruction offered by the trial court significantly later in the trial. We find the error was not waived, in that the delay diminished the sufficiency of a curative instruction and at that point would have only highlighted the error. See Taylor v. State, 640 So. 2d 1127 (Fla. 1st DCA 1994).
We therefore reverse and remand for a new trial.
Reversed and Remanded For New Trial.
WARNER and KLEIN, JJ., concur.
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Cited By
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Melehan v. State, 126 So. 3d 1118 (Fla. 4th DCA 2012)…tion to deny the motion for mistrial. Id. The court grounded its conclusion that it was error to deny the motion for mistrial in part on the fact that codefendant gave the only eyewitness testimony that Tumblin was the shooter. In Shabazz v. State, 928 So. 2d 1267 (Fla. 4th DCA 2006), this court dealt with a second degree murder prosecution in which the eyewitness testimony presented conflicting evidence as to whether the defendant killed the victim in self-defense when a drug deal went bad. When the defendan…
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Concha v. State, 972 So. 2d 996 (Fla. 4th DCA 2008)…to prove beyond a reasonable doubt that Concha’s normal faculties were impaired. A prosecutor’s question that is fairly susceptible of being interpreted by the jury as a comment on a defendant’s 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…
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Hopkins v. State (Fla. 4th DCA 2019)…ord Ferrari v. State, 260 So. 3d 295, 312 (Fla. 4th DCA 2018). Importantly, a defendant does not waive this prohibition by electing to take the stand and testify at trial. Hoggins, 718 So. 2d at 769. This Court’s holding in Shabazz v. State, 928 So. 2d 1267 (Fla. 4th DCA 2006) is instructive. In that case, the state presented testimony establishing that the defendant shot at the victim first and the victim returned fire. Id. at 1268. The defendant took the stand in his own defense and, in contra…
Authorities Cited
- State v. Hoggins, 718 So. 2d 761 (Fla. 1998)
- Kosek v. State, 640 So. 2d 1127 (Fla. 5th DCA 1994)
- Taylor v. State, 640 So. 2d 1127 (Fla. 1st DCA 1994)
- Robbins v. State, 891 So. 2d 1102 (Fla. 5th DCA 2004)