CARL SYLVESTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fourth District Court of Appeal reversed a criminal conviction because the prosecutor improperly elicited testimony about the defendant's exercise of his right to remain silent without establishing a predicate for such evidence. The court certified a question to the Florida Supreme Court regarding whether harmless error analysis can apply to such constitutional violations.
The court reversed the conviction and remanded for a new trial, holding that such error requires reversal without regard to harmless error doctrine under the cited precedents, though the court acknowledged a divergence of authority and certified the question to the Supreme Court of Florida.
[1] A prosecutor's question eliciting a negative response regarding a defendant's post-Miranda statement constitutes an improper reference to the defendant's right to remain…
[2] An improper reference to a defendant's exercise of the right to remain silent generally requires reversal without regard to the doctrine of harmless error.
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“the prosecutor (without the necessity of establishing a predicate for the introduction into evidence of any statement of the defendant) asked the arresting officer whether the defendant made any statement after being warned of his constitutional rights and obtained a negative answer from the officer”
Describes the improper prosecutorial conduct that violated the defendant's right to remain silent.
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Join FLexlaw to unlock all legal intelligenceDuring trial, the prosecutor asked the arresting officer whether the defendant made any statement after being warned of his constitutional rights, and…
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ALDERMAN, Judge.
This is another case where the prosecutor (without the necessity of establishing a predicate for the introduction into evidence of any statement of the defendant) asked the arresting officer whether the defendant made any statement after being warned of his constitutional rights and obtained a negative answer from the officer. We must reverse upon the authority of Jones v. State, 200 So. 2d 574 (Fla. 3d DCA 1967); Bennett v. State, 316 So. 2d 41 (Fla.1975); Farese v. State, 328 So. 2d 548 (Fla. 1st DCA 1976); Bostic v. State, 332 So. 2d 349 (Fla. 4th DCA 1976); Martin v. State, 334 So. 2d 841 (Fla. 4th DCA 1976); Shannon v. State, 335 So. 2d 5 (Fla.1976); Lucas v. State, 335 So. 2d 566 (Fla. 1st DCA 1976); Boyd v. State (Fla. 4th DCA, Case No. 75-624, opinion filed November 26, 1976); Williams v. State, 340 So. 2d 1191 (Fla. 4th DCA 1976); Collins v. State, 340 So. 2d 516 (Fla. 4th DCA 1976); Spann v. State, 340 So. 2d 1215 (Fla. 4th DCA 1976); Maness v. State, 341 So. 2d 246 (Fla. 4th DCA 1976).
The State concedes that the testimony in question was an improper reference to the defendant’s right to remain silent, but contends that such testimony in this case was not fundamental error. A good argument can be made that the error was harmless.
The evidence of guilt of the accused was overwhelming. When the witness made the improper response, the prosecutor did not attempt to continue the dialogue with the witness or otherwise pursue the fact of appellant’s exercise of his right to remain silent. No objection to the improper response was raised by appellant at the time of trial and the prosecutor made no further reference to the improper response during the remainder of the trial. If it were constitutionally possible for us to apply the “harmless error” rule to the facts of this case we would do so. The cases cited above seem to hold that we may not; that such error requires reversal without regard to the doctrine of harmless error.
However the Second and Third Districts have recently held that in certain circumstances an improper reference to a defendant’s exercise of his right to remain silent may be harmless error. Manning v. State, 336 So. 2d 408 (Fla. 3d DCA 1976); Clark v. State, 336 So. 2d 468 (Fla. 2d DCA 1976); Mansfield v. State, 338 So. 2d 857 (Fla. 3d DCA 1976).
Because of this divergence of views we will, upon proper application of either party, certify as a matter of great public interest the following question to the Supreme Court of Florida:
Where the prosecutor in a criminal case (without the necessity of establishing a predicate for the introduction into evidence of any statement of the defendant) asked the arresting officer whether the defendant made any statement after being warned of his constitutional rights and obtained a negative answer from the officer, and where the evidence of guilt of the accused was overwhelming, and the prosecutor did not attempt to continue the dialogue with the witness or otherwise pursue the fact of appellant’s exercise of his right to remain silent, and no objection to the improper response was raised by the accused at the time of trial, and no further reference to the improper response was made during the remainder of the trial, may an appellate court constitutionally apply the doctrine of harmless error?
REVERSED and REMANDED for a new trial.
ANSTEAD and LETTS, JJ., concur.
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Tsavaris v. Scruggs, 360 So. 2d 745 (Fla. 1977)…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 rights and liberty of a person becomes an important, and often controversial, problem in any case as…
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Porter v. State, 356 So. 2d 1268 (Fla. 3d DCA 1978)…n v. State, 356 So. 2d 320 (Fla. 3d DCA 1977) (case no. 76-1035, opinion filed July 6, 1977) (petition for rehearing pending); Royal v. State, 347 So. 2d 742 (Fla. 4th DCA 1977); Davis v. State, 342 So. 2d 987 (Fla. 3d DCA 1977); Sylvester v. State, 341 So. 2d 203 (Fla. 4th DCA 1977); Spann v. State, 340 So. 2d 1215 (Fla. 4th DCA 1977); Woulard v. State, 340 So. 2d 945 (Fla. 4th DCA 1976); Collins v. State, 340 So. 2d 516 (Fla. 4th DCA 1976); Carter v. State, 335 So. 2d 875 (Fla. 4th DCA 1976); Williams v. St…
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Dozier v. State, 361 So. 2d 727 (Fla. 4th DCA 1978)…ling thereon. Our decision is controlled by our previous opinions in Bostic v. State, 332 So. 2d 349 (Fla. 4th DCA 1976); Carter v. State, 335 So. 2d 875 (Fla. 4th DCA 1976); Collins v. State, 340 So. 2d 516 (Fla. 4th DCA 1976); Sylvester v. State, 341 So. 2d 203 (Fla. 4th DCA 1977); Royal v. State, 347 So. 2d 742 (Fla. 4th DCA 1977). A fundamental error of constitutional dimension may be collaterally attacked. Accordingly, this cause is reversed and remanded for an evidentiary hearing in accordance with th…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Shannon v. State, 335 So. 2d 5 (Fla. 1976)
- Bennett v. State, 316 So. 2d 41 (Fla. 1975)
- Jones v. State, 200 So. 2d 574 (Fla. 3d DCA 1967)
- Clark v. State, 336 So. 2d 468 (Fla. 2d DCA 1976)
- Martin v. State, 334 So. 2d 841 (Fla. 4th DCA 1976)
- Lucas v. State, 335 So. 2d 566 (Fla. 1st DCA 1976)
- Bostic v. State, 332 So. 2d 349 (Fla. 4th DCA 1976)
- Am. Emp'rs Ins. Co. & Snead Constr. Corp. v. J. H. Atkins & Assocs., Inc., 332 So. 2d 349 (Fla. 4th DCA 1976)
- Collins v. State, 340 So. 2d 516 (Fla. 4th DCA 1976)
- Farese v. State, 328 So. 2d 548 (Fla. 1st DCA 1976)