CURTIS YOUNG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Curtis Young was convicted of grand larceny by jury verdict, but the Florida District Court of Appeal reversed and remanded for a new trial because the prosecutor improperly commented on the defendant's failure to testify in violation of Griffin v. California.
The prosecutor's statement that 'because the Defendant has not presented a defense today' constituted prejudicial comment upon the defendant's failure to testify in violation of Griffin v. California, requiring reversal and a new trial given the circumstantial nature of the evidence and the lack of overwhelming proof.
[1] A prosecutor's comment during closing argument that the defendant has not presented a defense is an improper comment on the defendant's failure to testify.
[2] An improper comment on a defendant's failure to testify is prejudicial when the evidence against the defendant is not overwhelming.
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Join FLexlaw to unlock all legal intelligence“because the Defendant has not presented a defense today”
The prosecutor's improper comment on defendant's failure to testify that formed the basis for reversal
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Join FLexlaw to unlock all legal intelligenceYoung was accused of grand larceny. Mrs. Garrett testified that money was present when she left a location but gone when she returned. The state's cas…
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Appellant, Curtis Young, brings this timely appeal from the judgment and sentence pursuant to a jury verdict of guilty of the crime of grand larceny in violation of Section 811.021, Florida Statutes, F.S.A.
Appellant poses three points for our determination; in view of our holding on Point III, we do not deem it necessary to discuss Points I and II. Point III is as follows:
THE PROSECUTOR IN HIS FINAL ARGUMENT IMPROPERLY COMMENTED ON DEFENDANT’S FAILURE TO TESTIFY.
The assistant state attorney in his argument to the jury stated:
I also spoke to you in opening argument about the strength of circumstantial evidence. Because the Defendant has not presented a defense today— there’s only one thing that we know about this case, and that is that nobody saw him take the money. We heard testimony from Mrs. Garrett who said it was there when she left and it was gone when she returned.
The statement “. . . [bjecause the Defendant has not presented a defense today. . . .’’is clearly a comment upon the failure of appellant to testify as a defendant in a criminal cause. It is, therefore, prejudicial. The record discloses that when the above statement was made the assistant public defender timely objected. The trial judge requested that the statement be read back. The jury heard the statement repeated a second time. The motion for mistrial was denied by the trial judge.
The conviction of appellant was obtained primarily on circumstantial evidence. In our opinion the evidence presented by the state was not overwhelming nor all conclusive. While the statement of the prosecutor as to the failure of appellant to present a defense is not considered to be fundamental error, we do believe it prejudicial in the view of the totality of the circumstances in this case. We do not consider the harmless error statute to be applicable in the light of the record.
*14Accordingly, on the authority of Griffin v. California, 1965, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; Carter v. State, Fla.App.1967, 199 So.2d 324, reh. den., May 26, 1967; and Singleton v. State, Fla.App.1966, 183 So.2d 245, this cause is hereby
Reversed and remanded for new trial.
MANN, C. J., and HOBSON, J., concur.
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State v. Bolton, 383 So. 2d 924 (Fla. 2d DCA 1980)…re appears to be to some extent a split of authority as between District Courts of Appeal in the state of Florida with respect to the issue before the Court. Upon consideration, the undersigned finds controlling the case of Young v. State, Fla.App., 280 So. 2d 13, (2nd Dist.Ct.App., 1973), and based upon said opinion, makes the further finding that, taken in full context, the statement of the Assistant State Attorney that is in issue falls outside of the acceptable boundaries that have been established with…1 / 2
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Dixon v. State, 430 So. 2d 949 (Fla. 3d DCA 1983)…he burden of proving his innocence, the defendant is entitled to a new trial. Compare Wright v. State, 363 So. 2d 617 (Fla. 1st DCA 1978), cert. denied, 372 So. 2d 471 (Fla.1979); Gilbert v. State, 362 So. 2d 405 (Fla. 1st DCA 1978); Young v. State, 280 So. 2d 13 (Fla. 2d DCA 1973) with Jacobs v. State, 389 So. 2d 1054 (Fla. 3d DCA 1980), pet. for review denied, 397 So. 2d 778 (Fla.1981); Weeks v. State, 363 So. 2d 176 (Fla. 4th DCA 1978), Shapiro v. State, 345 So. 2d 361 (Fla. 3d DCA), cert. denied, 353 So.…
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Fernandez v. State, 427 So. 2d 265 (Fla. 2d DCA 1983)…cautionary instruction to the jury. Watkins v. State, 363 So. 2d 575 (Fla. 3d DCA 1978). The prosecutor’s statement was clearly a comment upon the defendant’s failure to testify in the face of criminal accusations made against him. Young v. State, 280 So. 2d 13 (Fla. 2d DCA 1973). As stated by the Florida Supreme Court in Trafficante v. State, 92 So. 2d 811 (Fla.1957), at page 814: In summary, our law prohibits any comment to be made, directly or indirectly, upon the failure of the defendant to testify. T…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Griffin v. California, 380 U.S. 609 (U.S. 1965)
- Carter v. State, 199 So. 2d 324 (Fla. 2d DCA 1967)
- Singleton v. State, 183 So. 2d 245 (Fla. 2d DCA 1966)