EARL L. DAUGHTREY, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this armed robbery and assault conviction appeal, the court addressed whether a prosecutor may comment on a defendant's failure to produce corroborating alibi witnesses during closing argument. The court held that when a defendant raises an alibi defense and names specific competent and available witnesses, the prosecution may comment on the failure to produce such witnesses as fair comment on evidence.
The court held that when a defendant raises an alibi defense and identifies specific competent and available witnesses, the prosecutor may fairly comment on the defendant's failure to produce those witnesses. Such comment is proper because alibi is an affirmative defense in which the defendant carries the burden of proof, and the credibility of the defense is subject to fair comment by the State.
[1] A prosecutor may comment on a defendant's failure to produce corroborating witnesses if those witnesses are competent and available to support the defendant's alibi defen…
[2] Alibi is an affirmative defense, and the defendant carries the burden of proof for such a defense.
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 from Jenkins allowing prosecutor comment on failure to produce competent, available witnesses
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Join FLexlaw to unlock all legal intelligenceEarl L. Daughtrey, Jr. was convicted of armed robbery and assault with intent to commit first degree murder. Daughtrey's defense was an alibi; he test…
The full statement of facts, procedural history, and disposition for this case are member content.
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SACK, MARTIN, Associate Judge:
This is an appeal from a conviction for armed robbery and assault with intent to commit first degree murder. The defense was an alibi, and the appellant took the stand on his own behalf, testifying as to his alleged whereabouts and persons whom he had seen during the day. During the prosecutor’s closing remarks the following took place:
“. . . The Defendant has taken the stand and says he was not there either time. One time he says, T was asleep in the bed and my wife came and woke me up and I decided not to go to work because it was raining and then I went on to work.’ He gave me the names of people who were there, his supervisor, and the fact that he had punched in a time clock. Where is it? That is evidence folks. That’s what he could bring to you to show you we got him wrong.
MR. WEED: We object to this your Honor, the comments on where are these people. The Defendant’s not required to prove anything.
THE COURT: Sustained.
MR. WILLIS: Your Honor, I can comment on the lack of evidence. He brought the evidence of alibi forth. Lack of evidence in this regard is certainly a relevant and proper area to comment on in the alibi defense.
MR. WEED: I believe the Defense may comment on the lack of evidence, the State’s lack of evidence of proving the innocence of this Defendant, there is no such thing.
MR. WILLIS: The reasonableness of his defense though, it’s fair comment on evidence which has or has not been presented.
THE COURT: Sustained.
MR. WEED: Would you please instruct the Jury to disregard those comments ?
THE COURT: Members of the jury disregard the comments which just occurred, just heard by you from the State Attorney. Do not consider them in arriving at your verdict.
MR. WILLIS: The Defendant testified from the stand that he had a supervisor and he gave you a name. The Defendant testified from the stand and the evidence is before you that he had a time clock that he had to punch. Now that’s before you. You heard that from the stand. He has testified that on the day that he, that Mrs. Register was shot, that he had been at home and had tended to his child and then he had gone down and played pool at a poolhall. He had names he give you. The man who ran the place and the person he was with there and who he played pool with. He testified to those names. He knows them. He further testified that he supposed that’s right where they were. He testified to the name of a store where he went and bought some, a drink or something like that, during the day of the 11th of December, in the trailer park where he lived. He testified to that to you. Names that he gave to you. Think about that when you consider his defense and his alibi . . .”
Thus, the main point on appeal is whether this was fair comment on the defendant’s testimony, it being ufged by appellant that the prosecution was barred from mentioning or challenging the failure of the appellant to produce corroborative witnesses. Our decision here is based solely upon the defense of alibi (an affirmative defense) and the facts of this case.
In Jenkins, Jr. v. State, 317 So. 2d 90 (Fla.App.1st, 1975) this court said:
“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 ..."
We see no reason why the same rule should not be applied-in this case. There have been' sufficient safeguards erected through the years to fully insure a fair trial in these criminal cases, and we know no reason for erecting a barrier to the State’s comment on the appellant’s failure to produce competent and available witnesses in support of his claimed alibi. Since alibi is an affirmative defense in which the defendant is supposed to carry the burden of proof, why shouldn’t his credibility be the subject of fair comment where the supporting witnesses are competent and available ?
We have examined the other points on appeal and find no merit in them.
Accordingly, the judgment is affirmed.
BOYER, C. J., and MILLS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bayshore v. State, 437 So. 2d 198 (Fla. 3d DCA 1983)…hown if the defendant raises alibi as a defense and then fails to call alibi witnesses. Pena v. State, 432 So. 2d 715 (Fla. 3d DCA 1983); Jacobs v. State 389 So. 2d 1054 (Fla. 3d DCA 1980), rev. denied, 397 So. 2d 778 (Fla.1981); Daughtrey v. State, 325 So. 2d 456 (Fla. 1st DCA), cert. denied, 336 So. 2d 600 (Fla.1976); Jenkins v. State, 317 So. 2d 90 (Fla. 1st DCA 1975). In the instant case, however, as in Kindell, supra, the state not only “totally failed to establish the competency and availability of the…
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Hall v. State, 470 So. 2d 796 (Fla. 4th DCA 1985)…prosecutor. Romero v. State, 435 So. 2d 318, 320 (Fla. 4th DCA 1983), rev. denied, 447 So. 2d 888 (Fla.1984). See also Buckrem v. State, 355 So. 2d 111 (Fla.1978), appeal after remand, [*798] 364 So. 2d 1258 (Fla. 2d DCA 1978); Daughtrey v. State, 325 So. 2d 456 (Fla. 1st DCA), cert. denied, 336 So. 2d 600 (Fla.1976); Jenkins v. State, 317 So. 2d 90 (Fla. 1st DCA 1975). Therefore, the prosecutor’s comment was proper, provided that the girlfriend was shown to be both competent and available. She was shown to…
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Dixon v. State, 430 So. 2d 949 (Fla. 3d DCA 1983)…la. 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. State, 325 So. 2d 456 (Fla. 1st DCA), cert. denied, 336 So. 2d 600 (Fla.1976). Jenkins v. State, 317 So. 2d 90 (Fla. 1st DCA 1975) (the state was permitted to comment on the defense’s failure to produce alibi witnesses). The defendant next contends that the trial court…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jenkins v. State, 317 So. 2d 90 (Fla. 1st DCA 1975)