STATE OF FLORIDA, PETITIONER,
v.
GEORGE E. MATHIS, RESPONDENT
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The Florida Supreme Court reversed a district court decision that had overturned a robbery conviction, holding that the prosecutor's closing remarks about the lack of evidence of coercion did not constitute an improper comment on the defendant's failure to testify.
The prosecutor's remarks did not violate the rule against commenting on a defendant's failure to testify. The remarks were a fair response to defense counsel's argument regarding the voluntariness of the confession and were simply pointing out the lack of evidence supporting involuntariness, not alluding to Mathis's failure to testify.
[1] A prosecutor's comment during closing arguments, which refers to the lack of evidence regarding the involuntariness of a confession, does not violate a rule prohibiting c…
[2] A prosecutor's remarks in closing argument may be considered a fair reply to defense counsel's preceding argument on the same subject.
Previewing 2 of 4 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“Now, did you hear one thing about him getting beaten up or somebody was pounding on his head, forcing him into this? Not a word about it.”
The prosecutor's challenged remark in closing argument that the Court interpreted as commenting on the lack of evidence of coercion rather than on the defendant's failure to testify.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMathis was arrested for robbery and waived his Miranda rights, making an inculpatory statement. The statement was admitted at trial. During closing ar…
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Petition for certiorari brings for our review an opinion by the Fourth District Court of Appeal, reported at 267 So.2d 846. Conflict is apparent with Adjmi v. State, 139 So.2d 179 (Fla.App.3d 1962), vesting conflict jurisdiction.1
Respondent-defendant was arrested on charges of robbery. During an interrogation, respondent waived his Miranda rights and made an inculpatory statement. This statement was admitted into evidence at the trial. In his closing argument to the jury, *281defense counsel reminded the jury to consider the voluntariness of the statement made by defendant. The prosecutor re-, sponded to defense counsel’s argument by saying:
“In the evening time — in the fact of the matter; late at night — it was 11:00, I believe or around that time; 11:30 — they gave him another set of rights. It was signed by him in front of Whipple. He gave Whipple a confession. Davenport came in and read the whole thing to him again, and then read over his statement here because — I don’t want to use his term — it is a statement about what he thinks happened and he signed that up there in the Detective Bureau.
"Now, did you hear one thing about him getting beaten up or somebody was pounding on his head, forcing him into this? Not a word about it. Mr. Mathis came forward with that on his own hook. He said, yes, here is what happened and here there are two things in this confession.”
Defense counsel objected and moved for a mistrial which the court denied. Subsequently, the jury found the defendant guilty and the judge sentenced him to life imprisonment.
The Fourth District Court of Appeal in a 2-1 decision said the above-quoted remarks inferred “(if not in fact directly)” that the defendant failed to testify violating Crim. Rule 3.250, 33 F.S.A. (former Fla.Stat. § 918.09). Relying on our decision in Traffi-cante v. State, 92 So.2d 811 (Fla.1957), the district court said this error could not be considered as harmless and accordingly reversed with instructions for a new trial.
Here the challenged remark in closing argument of the prosecutor falls into the category of general comment as in Adjmi and was really an “invited response” by the preceding argument of defense counsel regarding the same subject. It was a fair reply not violative of the Rule and which we would approve in these circumstances.
In saying, “Now, did you hear one thing about him getting beaten up or somebody was pounding on his head, forcing him into this?”, the prosecutor was not referring to the fact that defendant did not testify as suggested by the district court. The prosecutor, quite clearly, was indicating that there was simply no evidence on the involuntariness of the confession. Consequently, these remarks were not directed to defendant’s failure to testify. Judge Mager’s well analyzed dissent further amplifies the point.
Certiorari is accordingly granted; the opinion of the district court is hereby quashed and remanded for reinstatement of the trial court’s judgment of conviction and sentence to life imprisonment.
It is so ordered.
CARLTON, C. J., and ADKINS, BOYD and McCAIN, JJ., concur.
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Citator
Cited By (12 total)
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Barwick v. State, 660 So. 2d 685 (Fla. 1995)…s under which Barwick made his taped confession, the State responded that there was no evidence supporting the conclusion that any impropriety occurred. The defense invited, and the State was thus entitled to make this response. See State v. Mathis, 278 So. 2d 280, 281 (Fla.1973). We next address Barwick’s claim that the trial court erred in denying his motion for judgment of acquittal on the attempted sexual battery charge. In a circumstantial evidence case such as this, a judgment of acquittal is appropria…
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White v. State, 377 So. 2d 1149 (Fla. 1979)…l. It is proper for a prosecutor in closing argument to refer to the evidence as it exists before the jury and to point out that there is an absence of evidence on a certain issue. State v. Jones, 204 So. 2d 515 (Fla.1967). See also State v. Mathis, 278 So. 2d 280 (Fla.1973). It is thus firmly embedded in the jurisprudence of this state that a prosecutor may comment on the uncontradicted or uncontroverted nature of the evidence during argument to the jury. See State v. Jones, supra, at 516-517; Clinton v. Sta…
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Dufour v. State, 495 So. 2d 154 (Fla. 1986)…y referred to the lack of any evidence on the question, White v. State, 377 So. 2d 1149 (Fla.1979), and fell into the category of an “invited response” by the [*161] preceding argument of defense counsel concerning the same subject. State v. Mathis, 278 So. 2d 280 (Fla.1973). The trial court thus acted properly in denying these motions for mistrial. Appellant next argues that the trial court committed reversible error in finding appellant’s absence at a pretrial motions hearing voluntary and conducting it in…
Previewing 3 of 12 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)
- Adjmi v. State, 139 So. 2d 179 (Fla. 3d DCA 1962)
- Mathis v. State, 267 So. 2d 846 (Fla. 4th DCA 1972)