JAMES L. MANNING, APPELLANT,

v.

THE STATE OF FLORIDA, APPELLEE

PER CURIAM.

This appeal is by the defendant below from a judgment entered on a jury verdict finding the defendant guilty of possession of burglary tools, breaking and entering a building, and grand larceny.

The appellant contends the trial court committed reversible error by denying his motions for mistrial, made following the presentation of certain evidence by the prosecutor, at two stages of the trial.

In the first incident which prompted a motion for mistrial, a police officer presented as a witness for the state testified that after the defendant, in custody, was advised of his right to remain silent, he told the officers he did not want to talk to them. The second incident was as follows. The defendant, testifying at the trial, related an exculpatory story as to why he had fled when approached by the officers, which was highly improbable in view of the evidence presented by the state on that feature. On cross examination the prosecutor asked the defendant if he had related that story at his preliminary hearing. The defendant stated he had not testified there. The defendant was asked if he had told that story to any of the officers. He said he had not, and when asked if that story had been stated by him for the first time at the trial, the defendant answered in the affirmative.

With regard to the first incident, following Bennett v. State, Fla.1975, 316 So. 2d 41, we hold it was reversible error for the state to present testimony that the accused, while in custody after arrest, and having been advised of his rights to remain silent, announced his election to do so by stating that he did not want to talk to the officers.

However, whereas in Bennett the evidence of guilt of the accused was not overwhelming,1 in this case it was, and, applying the harmless error rule, we hold the above mentioned error does not require reversal and a new trial. No useful purpose would be served by a detailed statement of the evidence presented in this case. On the record, the evidence of the guilt of the accused was such as to meet the standard required for application of the harmless error rule, as referred to in Bennett (316 So. 2d at 44) and as prescribed in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

Regarding the second incident, we hold no reversible error occurred. See Willinsky v. State, Fla.App.1976, 328 So. 2d 536. Disclosure that the defendant had not testified at a preliminary hearing in the case was not reversible error. The story related by the defendant at his trial, that his flight from the officers was because of his possession of some marijuana, was patently and inherently lacking in credibility in view of the strong contrary testimony and physical evidence. The state had presented testimony of an arresting officer that when the defendant was approached by the officers he discarded a camera case and a suitcase, and fled; that the suitcase was found to contain burglary tools, and property including a large amount of jewelry belonging to the occupants of the residence that had been broken into a short time earlier, and that the defendant, when arrested, had in his pocket a watch belonging to the larceny victim on which the victim’s name was inscribed. The questions put to the defendant, as to whether he had related that story on specific earlier occasions, was laying a predicate for impeachment, such as could have been proceeded with if the defendant’s answer had been in the affirmative.

The testimony of the defendant as to his reason for fleeing was so improbable and lacking in credibility in view of the evidence, that any increase in the degree of improbability thereof which may have resulted from the showing by the state on cross-examination that the defendant had produced that story for the first time at trial, could not reasonably be regarded as possibly having contributed to his conviction. The error in that regard, if any, was harmless error under the law.

The judgment is affirmed.

. In Bennett the court said: “[U]nder no stretch of the imagination can it be said that the evidence was overwhelming against defendant”.

CHARLES CARROLL, Associate Judge

(concurring specially).

I concur in the opinion and judgment of the court. I recognize the need to follow Bennett v. State, Fla.1975, 316 So. 2d 41, and hold that reversible error resulted when the state produced testimony that the accused, in custody and aware of his right to remain silent, availed himself of that right and stated he did not want to talk to the officers, even though there was no showing that his election to remain silent was made in face of an accusation, or under other circumstances of such character that to then remain silent would amount to an admission against interest, constituting self-incriminating evidence of guilt. I agree that the harmless error rule here obviates reversal for such error. However, I take the liberty to state reasons why, in my opinion, the foregoing incident should not be regarded as reversible error.1 The constitutional rights of an accused in custody, as outlined in Miranda2 (including the right to have an attorney; to remain silent; to refuse to submit to custodial interrogation unless in presence of his attorney; and to retain his constitutional rights rather than to waive them), are granted to an accused by fundamental law for his benefit and protection, including his protection against self-incrimination.

It would appear that the bare fact that an accused chose to avail himself of the rights thus granted to him, or of any one of such rights, should not be regarded as self-incriminating evidence of his guilt of the offense for which he was arrested. I cannot consider that an accused who informs an officer that he chooses not to submit to custodial interrogation thereby has been “compelled to incriminate himself”, or thereby has furnished evidence of guilt by remaining silent. It is materially different matter when the exercise of the right (such as the right to remain silent), is made in face of an accusation, or otherwise is made under circumstances which are of such character that to remain silent in face thereof would be tantamount to a self-incriminating admission, and evidence of guilt.3 That is precisely what occurred in Jones v. State, Fla.App.1967, 200 So. 2d 574. In that case, a short time after a purse snatching incident the accused was arrested on the basis of a description given by the victim, and was warned of his rights. He was returned to the scene of the offense in custody of the officers, and there in face of a statement by the victim, made in his presence, that he was the man who took her purse, the accused stood mute. Testimony presented by the state that such had occurred was held to be reversible error under Miranda.

In Bennett, citing Jones as authority, it was held to be reversible error for the state to produce testimony that an accused, after having been arrested and warned of his rights, had refused a request of the officers that he sign a written waiver of his rights. In that case it was not shown that the election of the accused to avail himself of his granted constitutional rights was made in face of an accusation, or under circumstances whereby his election could operate as admission against interest constituting evidence of his guilt.,

In Miranda, after stating it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation, the Supreme Court of the United States said: “[T]he prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in face of accusation”, and further said: “[T]he privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner”. (Emphasis supplied).

The choice of an accused not to waive the rights granted by fundamental law for his protection, including protection against self-incrimination, should not be regarded as an admission of guilt or as being evidence of his guilt. Exercise of his rights by an accused should not operate to bring about any injurious result, for his protection against which the right was granted.

If refusal of an accused to waive his rights or to submit to custodial interrogation is not to be regarded as evidence of his guilt, then testimony that he did so, if presented by the state, would not be a showing of guilt of the accused by self-in-erimination, and should not be ground for reversal. On the other hand, when the exercise of the right is under conditions which may be such that for the accused to have done so in face thereof would amount, under the law, to a self-incriminating admission constituting evidence of guilt, it would be prejudicial, and reversible error for the state to show that such had occurred, since that would be action by the state penalizing the accused for having exercised his Fifth Amendment privilege. It would appear the former would apply to Bennett, and that the latter situation applies to Jones.

To hold otherwise could influence an appellate court to regard it to be reversible error whenever, on trial of an accused, the state should happen to present evidence that an accused while in custody had made known his desire to avail himself of one or more of the constitutional rights granted to him for his use and protection.

. See Hoffman v. Jones, Fla. 1973, 280 So. 2d 431, 434.

. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

. For example, as when one co-defendant upon custodial interrogation, in the presence of the other, implicates the other.