MICHAEL GUY ALLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Defendant appeals his sentence and conviction on the grounds that the prosecutor improperly noted to the jury that defense did not call a certain person as a witness. This is error, and sometimes reversible error. Kirk v. State, 227 So. 2d 40 (4th DCA Fla.1969). However, in this case, the defense counsel in opening argument made several heavy and pointed references to that certain person, with the clear inference that such person was the true malefactor. We find the prosecutor’s remarks in response were not reversible error, and follow our decision in Dixon v. State, 206 So. 2d 55 (4th DCA Fla.1968):
“The argument by the prosecuting attorney was invited by the argument made by the defendant’s attorney and was not prejudicial to a fair trial.” Id. at 58.
We find defendant’s remaining point on aPPea^ a^so without merit,
Affirmed,
WALDEN, C. J., and CROSS and OWEN, JJ., concur.
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Fidel Romero v. State, 435 So. 2d 318 (Fla. 4th DCA 1983)…dant’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 § 1099b, page 181; 5 A.L.R.2d 930.” At 91. In Allen v. State, 320 So. 2d 828 (Fla. 4th DCA 1975), dismissed, 330 So. 2d 725 (Fla. 1976), defense counsel’s opening statement implied that a certain individual was the true perpetrator of the offense with which the defendant was charged. This court held that comment by the prose…
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Shapiro v. State, 345 So. 2d 361 (Fla. 3d DCA 1977)…of the prosecution remained un-impeached. The failure to call James Harris as a witness who would be helpful to the defense was properly a subject of comment by the prosecutor. Cf. Jenkins v. State, 317 So. 2d 90 (Fla. 1st DCA 1975); Allen v. State, 320 So. 2d 828 (Fla. 4th DCA 1975). In addition, we find the other prosecutorial remarks presented in this point on appeal were not improper in light of the context in which they were made. After having reviewed defendant’s remaining points on appeal, we have con…
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Dixon v. State, 430 So. 2d 949 (Fla. 3d DCA 1983)…tate, 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. 2d 678 (Fla.1977); Allen v. State, 320 So. 2d 828 (Fla. 4th DCA 1975), dismissed, 330 So. 2d 725 (Fla.1976) (the state may comment on the failure of the defense to call a witness whom the defendant claimed was favorable to his case) and Buckrem v. State, 355 So. 2d 111 (Fla.1978); Daughtrey v. Stat…
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- Kirk v. State, 227 So. 2d 40 (Fla. 4th DCA 1969)
- Dixon v. State, 206 So. 2d 55 (Fla. 4th DCA 1968)