DARRYL FARMER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Affirmed first-degree murder conviction where evidence of premeditation was sufficient, and no fundamental error despite prosecutor's improper cross-examination regarding defendant's silence at preliminary hearing.
Evidence of premeditation was sufficient to support the first-degree murder conviction.
[1] Prosecutor's cross-examination eliciting defendant's silence at preliminary hearing is improper under Fifth Amendment principles, but absence of objection, motion for mis…
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Join FLexlaw to unlock all legal intelligence“Appellant testified in his own behalf, relating a version of the incident which, if believed, would tend to partially (if not totally) exonerate him.”
Description of appellant's trial testimony and its potential exculpatory effect.
Appellant was convicted of first-degree murder. He testified at trial presenting a version of events that would tend to exonerate him.…
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PER CURIAM.
Appellant was convicted of first degree murder. The only issue he raises on appeal is the sufficiency of the evidence to show premeditation. We conclude that this point is without merit.
We comment briefly on what might appear, at first blush, to be fundamental error even though not argued. Appellant testified in his own behalf, relating a version of the incident which, if believed, would tend to partially (if not totally) exonerate him. Upon cross-examination the prosecutor elicited from appellant an admission that he had remained silent at the preliminary hearing. This was improper. United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); Bennett v. State, 316 So. 2d 41 (Fla.1975); Jones v. State, 200 So. 2d 574 (Fla.App.3rd, 1967). Defendant’s counsel initially objected, but then withdrew the objection, apparently because he intended to show on redirect examination that appellant’s silence at the preliminary hearing was the result of advice of counsel. There was no motion for a mistrial,, no motion to strike this testimony, nor any motion for the court to instruct the jury to disregard such testimony. In short, there was no judicial error, and we are not inclined to hold it as fundamental error in view of defense counsel’s tactical decision to withdraw his objection.
Affirmed.
WALDEN, C. J., and OWEN and DOWNEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Clark v. State, 336 So. 2d 468 (Fla. 2d DCA 1976)…keep the balance true.’ The Court now recants the statement of the exception upon which respondent relies and henceforth will review challenged argument of prosecutors only when an objection is timely made.” In Farmer v. State, Fla.App.4th, 1976, 326 So. 2d 32, upon cross-examination the prosecutor had elicited from the defendant an admission that he had remained silent at the preliminary hearing. After pointing out that this was improper, the court of appeal stated: “. . . Defendant’s counsel initially…
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Willinsky v. State, 360 So. 2d 760 (Fla. 1978)…itional conflict see also Jones v. State, 200 So. 2d 574 (Fla. 3d DCA 1967).” State v. Galasso, supra, at p. 328. We then held that the disclosure of silence at arrest in Galasso was error, but harmless under the circumstances. In Farmer v. State, 326 So. 2d 32 (Fla. 4th DCA 1976), the prosecutor brought out on cross-examination that defendant had remained silent at a preliminary hearing. The Court recognized that this was improper but said: [*763] “Defendant’s counsel initially objected, but then withdrew…
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Tsavaris v. Scruggs, 360 So. 2d 745 (Fla. 1977)…468 (Fla. 2nd DCA 1976) Greenfield v. State, 337 So. 2d 1021 (Fla. 2nd DCA 1976) Mansfield v. State, 338 So. 2d 857 (Fla. 3rd DCA 1976), Cert. dismissed Fla., 342 So. 2d 1102 Cridland v. State, 338 So. 2d 30 (Fla. 3rd DCA 1976) Farmer v. State, 326 So. 2d 32 (Fla. 4th DCA 1976), Cert. dismissed, Fla., 340 So. 2d 927 Sylvester v. State, 341 So. 2d 203 (Fla. 4th DCA 1977) Many of these decisions are pending before us, and we must eventually resolve this conflict. Any question relating to the basic right…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Hale, 422 U.S. 171 (U.S. 1975)
- Bennett v. State, 316 So. 2d 41 (Fla. 1975)
- Jones v. State, 200 So. 2d 574 (Fla. 3d DCA 1967)