BUCKLEY OTTO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this appeal from a conviction, the defendant argues that the prosecutor's closing argument constituted reversible error by indirectly commenting on his failure to testify. The court held that the prosecutor's remarks violated Florida law prohibiting direct or indirect comments on a defendant's failure to take the stand, and reversed the conviction for a new trial.
The court held that the prosecutor's remarks constituted prejudicial error warranting reversal. The court concluded the remarks indirectly commented on the defendant's failure to take the stand, which violates Florida law regardless of the character of the comment or the prosecutor's intent.
“a comment made by a prosecuting attorney directly or indirectly which is subject to interpretation by a jury as a comment upon failure to testify is an encroachment on this substantial right of a defendant, regardless of the character of the comment or the motive or intent”
Establishes the controlling Florida law that any prosecutor comment susceptible to interpretation as commenting on failure to testify violates the defendant's right, regardless of intent
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Join FLexlaw to unlock all legal intelligenceThe defendant was charged with a crime related to an incident at the Carillon Hotel on February 22, 1960. In opening statement, defense counsel indica…
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On appeal from a judgment of conviction and sentence, the appellant urges one ground for reversal. He contends, since he did not take the stand as a witness or offer evidence in his own behalf, that the remarks of the prosecuting attorney in his closing argument to the jury constituted reversible error.
Appellant’s counsel in his opening statement to the jury said:
“We will show you through the testimony of the defendant, who will openly admit he has a previous criminal record, that he was on the premises of the Carillon Hotel on February 22, 1960, since he had been out to purchase a dress for his wife.”
The prosecuting attorney in his closing argument made the following statement:
“Another piece which completes the puzzle, the attitude of the defendant on his arrest. He says he ’has never been arrested yet defense counsel in his opening statement mentioned the fact that he had been convicted.”
Appellant’s counsel objected to the prose-, cuting attorney’s statement and moved fora mistrial. The court denied the motion*. *153but stated that he would instruct the prosecuting attorney not to make any further mention of the fact. He further refused to instruct the jury to disregard the prosecuting attorney’s remarks.
We conclude from the record, and particularly the remarks of the prosecuting attorney, that such remarks constitute prejudicial and harmful error and, therefore, warrant a reversal of the judgment of conviction and sentence.
We realize, as did the able trial judge, that a determination of the harmful or harmless effect of the prosecuting attorney’s comments is one that is extremely difficult to make. Nevertheless, we conclude that it constitutes an indirect -comment on the failure of the appellant to take the stand and clear up the contradiction implicit in the prosecuting attorney’s comment. In this regard, we think the language of Judge Kanner in McLendon v. State, Fla.App.1958, 105 So.2d 513, 514, adequately sums up the prevailing .rule in this state:
“A long line of decisions by the Supreme Court of Florida culminating in the very thorough exposition by Mr. Justice Thornal in the case of Gordon v. State, Fla.1958, 104 So.2d 524, dealing with the subject matter of comment by a prosecuting attorney for failure of the defendant to testify, has adhered rigidly to the construction that a comment made by a prosecuting attorney directly or indirectly which is subject to interpretation by a jury as a comment upon faihire to testify is an encroachment on this substantial right of a defendant, regardless of the character of the comment or the motive or intent, notwithstanding such comment is suspectible to a different construction. The harmless -error statute has no application to a situation of this kind and, therefore, cannot be invoked. See Gordon v. State, supra; Simmons v. State, 1939, 139 Fla. 645, 190 So. 756; Traficante v. State, Fla.1957, 92 So.2d 811, and Way v. State, Fla.1953, 67 So.2d 321.” [Emphasis supplied.]
In view of the conclusions reached, the judgment of conviction and sentence is reversed and the cause is remanded for a new trial.
Reversed and remanded.
HORTON, C. J., and CARROLL, CHAS., J., concur.
PEARSON, J., dissents.
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Hooks v. State, 253 So. 2d 424 (Fla. 1971)…fy on his own behalf.” In holding that the lower court did not commit reversible error, defendant says that the decision conflicts with Trafficante v. State, 92 So. 2d 811 (Fla.1957); Flaherty v. State, 183 So. 2d 607 (Fla.App.1966); Otto v. State, 126 So. 2d 152 (Fla.App.3rd, 1961); McLendon v. State, 105 So. 2d 513 (Fla.App.2d, 1958), and other cases cited in the petition. There is no direct conflict between the decision of the District Court of Appeal in the case sub judice and any of the decisions cited…
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Singleton v. State, 183 So. 2d 245 (Fla. 2d DCA 1966)…the heat of argument, Sing v. State, Fla.App. 1959, 115 So. 2d 771. Or whether in retaliation to comments of his own counsel on the failure of defendant to testify, Griffin v. [*252] State, Fla.App.1963, 150 So. 2d 466; Otto v. State, Fla.App.1961, 126 So. 2d 152.7 Or in calling' attention to the fact that the defendant was sworn but did not testify, Tolliver v. State, Fla.App.1961, 133 So. 2d 565. Or the defendant’s failure to testify in other proceedings, such as preliminary hearing, habeas corpus, or a fo…
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Mitchell v. State, 304 So. 2d 466 (Fla. 3d DCA 1974)…appealed are affirmed. Affirmed. . See, Way v. State, Fla.1953, 67 So. 2d 321; Trafficante v. State, Fla.1957, 92 So. 2d 811; Gordon v. State, Fla.1958, 104 So. 2d 524; McLendon v. State, Fla.App.1958, 105 So. 2d 513; Otto v. State, Fla.App.1961, 126 So. 2d 152; Childers v. State, Fla.App.1973, 277 So. 2d 594. . See, Adjmi v. State, Fla.App.1962, 139 So. 2d 179, rev’d on other grounds, 154 So. 2d 812 (Fla.1963); State v. Jones, Fla.1967, 204 So. 2d 515; Woodside v. State, Fla.App.1968, 208 So. 2d 426 (See…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Russ v. State, 92 So. 2d 811 (Fla. 1957)
- Gordon v. State, 104 So. 2d 524 (Fla. 1958)
- Simmons v. State, 139 Fla. 645 (Fla. 1939)
- WAY v. State, 67 So. 2d 321 (Fla. 1953)
- McLENDON v. State, 105 So. 2d 513 (Fla. 2d DCA 1958)