ALLEN JENKINS, JR., AND LEON JENKINS, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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Allen Jenkins, Jr., and Leon Jenkins were convicted of second-degree murder following a jury trial and appealed on multiple procedural grounds, including alleged prosecutorial commentary on defendant's failure to produce an alibi witness. The Florida District Court of Appeal affirmed the conviction and life sentence, finding no reversible error.
The court found no error on any of the four claimed issues. The prosecutor's comment on the failure to produce the promised alibi witness was proper commentary; the presence of deputy sheriffs did not affect the right to a fair trial; the trial court's statement was not prejudicial when followed by a proper jury instruction; and the standard jury instruction, including the phrase 'failure to take the witness stand,' was appropriately given.
[1] A prosecutor may comment on a defendant's failure to produce an alibi witness if the witness is competent, available, and possesses knowledge material to the defense, esp…
[2] The presence of uniformed deputy sheriffs in a courtroom during a trial does not inherently prejudice a defendant's right to a fair trial.
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“If a witness knows material facts which will be helpful to a defendant in making his defense, and the witness is competent and available, the defendant's failure to produce the witness is properly a subject of comment by the prosecutor.”
Establishes the legal standard permitting prosecutorial commentary on a defendant's failure to call an available alibi witness.
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Join FLexlaw to unlock all legal intelligenceDefendants were indicted for first-degree murder and pled not guilty. At trial, the defense opened by promising to call the defendant's common law wif…
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MILLS, Judge.
Appellants-defendants were indicted for first degree murder. They pled not guilty. Following a jury trial, they were found guilty of second degree murder. They appeal from the judgment adjudicating them guilty of second degree murder, and sentencing them to life in prison.
Defendants contend the following errors were committed by the trial court:
1. Permitting the state to comment in closing argument on the failure of defendant Allen Jenkins, Jr., to use his common law wife as an alibi witness;
2. requiring the presence of two deputy sheriffs, equipped with two-way radios, in the courtroom during the trial;
3. making a prejudicial statement in ruling on the admissibility of certain evidence ; and
4. giving the standard jury instruction on “defendant not testifying”, hut refusing to change or amend the phrase “failure to take the witness stand” appearing therein, as requested by defendants.
We find no error and affirm.
In his opening statement, counsel for defendant Allen Jenkins, Jr., stated that the common law wife of this defendant would be called upon to testify that she and this defendant took their children to his mother between 8:00 P.M. and 8:30 P. M. on the evening of the alleged murder, and then proceeded to Cunningham’s Country Club where they met with four individuals at approximately 9:00 P.M., the time of the alleged murder. The common law wife was present in the courthouse throughout the trial. In closing argument, the attorney for the State was permitted, over objection of this defendant’s counsel, to comment that this defendant failed to produce his common law wife to testify as his counsel promised.
Alibi was the crucial defense in this case. If a witness knows material facts which will be helpful to a defendant in making his defense, and the witness is competent and available, the defendant’s failure to produce the witness is properly a subject of comment by the prosecutor. This is particularly true if the witness is the spouse of the defendant. 23A C.J.S. Criminal Law § 1099 b, page 181; 5 A.L.R.2d 930.
The record presented to us fails to demonstrate that defendant’s right to a fair trial was affected by the presence of two deputy sheriffs, equipped with two-way radios, in the courtroom during the trial.
During the trial, the following colloquy took place:
“THE COURT: Was he asked what Tony said?
“MR. HEBERT: He was about to say what was said in the presence of the Defendants.
“MR. HARPER: He’s saying it’s in the presence of the Defendants and I move it be striken.
“THE COURT: The evidence shows all this transpired, I believe, in the presence of the Defendants, which takes it out of the Exclusionary Hearsay Rule.”
Defendants immediately moved for a mistrial, which was denied. However, the trial court properly instructed the jury to disregard the remarks of the State’s attorney as well as his remarks. This was sufficient as the remarks were not prejudicial to the substantial rights of the defendants. Perry v. State, 146 Fla. 187, 200 So. 525 (1941).
Defendants requested the trial court to give standard criminal instruction 2.12(h), “defendant not testifying”, but after it was given objected to the reading of the phrase “failure to take the witness stand”, which appears in two places in the standard instruction. This contention is without merit.
Affirmed.
BOYER, C. J., concurs.
McCORD, J., concurs specially.
McCORD, Judge
(concurring specially).
I agree under the facts of this case that there was no error in the prosecutor’s comment on closing argument as to the failure of defendant to produce his wife as a witness to his alibi. But insofar as the majority opinion may leave an inference that comment regarding a wife’s failure to testify would' always be proper, I add the caveat that such would be error if the wife’s testimony would involve a privileged communication with her husband and if defense counsel had not opened the door for it by stating in his opening statement that she would be put on the stand to testify to the communication. See Ross v. State, Fla.App. (1st), 202 So. 2d 582 (1967).
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Citator
Cited By (24 total)
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Jackson v. State, 575 So. 2d 181 (Fla. 1991)…562 (Fla.1984); Buckrem v. State, 355 So. 2d 111, 112 (Fla.1978); see also Brown v. State, 524 So. 2d 730, 731 (Fla. 4th DCA 1988); Romero v. State, 435 So. 2d 318, 319 (Fla. 4th DCA 1983), review denied, 447 So. 2d 888 (Fla.1984); Jenkins v. State, 317 So. 2d 90, 91 (Fla. 1st DCA 1975). In Buckrem, the defendant asserted an alibi defense and claimed that at the time of the murder he was with his wife at a friend’s house. The Court held that the state did not err in commenting on the defendant’s failure to…
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Fidel Romero v. State, 435 So. 2d 318 (Fla. 4th DCA 1983)…n a subsequent case, in opening statement defense counsel indicated that he would call the defendant’s wife as an alibi witness. The court held a comment by the prosecuting attorney on his failure to do so was not reversible error. Jenkins v. State, 317 So. 2d 90 (Fla. 1st DCA 1975). The supreme court subsequently quoted from Jenkins with approval, in Buckrem v. State, 355 So. 2d 111, 112 (Fla.1978), where: Defendant complains that the assistant state attorney during his argument to the jury made reference…1 / 2
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State v. Michaels, 454 So. 2d 560 (Fla. 1984)…re was no merit in defendant’s argument that the prosecutor should not have referred to his failure to call two witnesses who could have testified relative to the alibi defense. In so holding, we quoted from Judge Mills’ opinion in Jenkins v. State, 317 So. 2d 90, 91 (Fla. 1st DCA 1975): Alibi was the crucial defense in this case. If a witness knows material facts which will be helpful to a defendant in making his defense, and the witness is competent and available, the defendant’s failure to produce the wi…
Previewing 3 of 24 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Perry v. State, 146 Fla. 187 (Fla. 1941)
- Wilton A. Ross v. State, 202 So. 2d 582 (Fla. 1st DCA 1967)