WALTER B. LEBOWITZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Walter Lebowitz was convicted of receiving stolen property after police found a purse in his home during a search. The U.S. Supreme Court vacated and remanded his conviction for reconsideration in light of Doyle v. Ohio, which prohibits prosecutors from using a defendant's post-arrest silence to impeach trial testimony. The Florida District Court of Appeal reaffirmed the conviction, distinguishing Doyle because the cross-examination here concerned pre-arrest silence during the search, not post-arrest silence, and no objections were made at trial.
Doyle v. Ohio does not apply to pre-arrest silence occurring at the time of the search, only to post-arrest silence after Miranda warnings. The court distinguished Doyle on two grounds: (1) Doyle involved post-arrest silence while this case involved silence during the search itself, and (2) Doyle involved objections to cross-examination while this case did not.
[1] The use of a defendant's post-arrest silence to impeach an exculpatory story told for the first time at trial violates due process.
[2] A prosecutor may impeach a defendant's exculpatory story by cross-examining the defendant about their failure to have told the story after receiving Miranda warnings at t…
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Join FLexlaw to unlock all legal intelligence“The question in these consolidated cases is whether a state prosecutor may seek to impeach a defendant's exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest. We conclude that the use of the defendant's post-arrest silence in this manner violates due process, and therefore reverse the conviction of both petitioners.”
Defines the scope of Doyle v. Ohio's prohibition, limited to post-arrest silence after Miranda warnings
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Join FLexlaw to unlock all legal intelligencePolice obtained a search warrant and searched appellant's home on December 8, 1973, at 8:00 a.m., discovering a stolen purse. During trial, the state …
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PEARSON, Judge.
The appellant was convicted in a jury trial of the crime of buying, receiving or concealing stolen property, to wit: a purse, in violation of Section 811.16, Florida Statutes (1973). He appealed from the judgment, and this court entered an affirmance on the judgment in an opinion filed May 27, 1975 (Fla.App., 313 So. 2d 473). The Supreme Court of Florida, thereafter, denied certiorari, finding that it was without jurisdiction (Fla., 330 So. 2d 19). Subsequently, the cause came to be heard before the Supreme Court of the United States (October term, 1976) upon a petition for writ of certiorari to this court. The petition resulted in a mandate of the Supreme Court of the United States, entered October 4, 1976 (429 U.S. 808, 97 S.Ct. 44, 50 L.Ed.2d 68) vacating the judgment of this court and remanding the cause for consideration by us in light of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).
The facts of this case, which are set out in our prior opinion (see 313 So. 2d 473), culminated in the issuing of a search warrant, resulting in the police going to the home of the appellant at 8:00, Saturday morning, December 8, 1973. At that time, the police searched the appellant’s home and found the purse in question.
When the appellant took the stand and was cross-examined by the State, the prosecutor asked the appellant a series of questions about his silence with regard to the location of the purse during the search of his home by the police officers. In this regard, appellant takes the position that he was denied his right to remain silent and free from self-incrimination under the Fifth Amendment, and also denied his right to a fair trial, where the prosecutor inquired on cross-examination concerning his failure to explain to the police his possession of recently stolen property.
The question now before us, upon the mandate of the Supreme Court of the United States remanding the case to us, is to consider whether the recent case of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), changes the result in the present case. We hold that it does not.
Upon consideration of this case in light of Doyle, we find two critical distinctions between the two cases. First of all, the Doyle case is “post-arrest” oriented. Secondly, the Doyle case involved repeated objections to the questions asked on cross-examination. In the present case, the cross-examination did not refer to “post-arrest” silence but rather to silence that took place at the time of the search of the appellant’s home. Also, unlike Doyle, the present case involved no objections to the cross-examination question.
To quote from Mr. Justice Powell, delivering the opinion of the court in the Doyle case, “The question in these consolidated cases is whether a state prosecutor may seek to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest. We conclude that the use of the defendant’s post-arrest silence in this manner violates due process, and therefore reverse the conviction of both petitioners.” [Emphasis added] A reading of Mr. Justice Powell’s opinion leaves no doubt that the thrust of the case was “post-arrest” oriented.
Further, we note Mr. Justice Powell’s recognition of the fact that “ . . . unless prosecutors are allowed wide leeway in the scope of impeachment cross-examination some defendants would be able to frustrate the truth-seeking function of a trial by presenting tailored defenses insulated from effective challenge.”1
Additionally, we are buttressed here by the fact that in Doyle objections were made to the cross-examination questions, whereas in the present case, objections were not made. See Cali v. State, 111 So. 2d 703 (Fla. 2d DCA 1959); and cf. Tafero v. State, 223 So. 2d 564 (Fla. 3d DCA 1969).
We, therefore, conclude that the Doyle case is not controlling in the present instance and, accordingly, we hereby reaffirm our prior decision in this case.
Affirmed.
HENDRY, C. J., dissents.
. Doyle v. Ohio 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 at 97 (1976), footnote 7.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Hoggins, 718 So. 2d 761 (Fla. 1998)…ts were made about the defendant’s silence during the two-week period between the murder and defendant’s surrender. See also Reaser v. State, 356 So. 2d 891 (Fla. 3d DCA 1978) (addressing a prearrest situation similar to Jenkins); Lebowitz v. State, 343 So. 2d 666 (Fla. 3d DCA 1977) (finding no constitutional violation where prosecutor commented on defendant’s silence at time of search rather than time of arrest). Florida case law as well as case law from the United States Supreme Court and other states supp…1 / 2
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Robertson v. State, 780 So. 2d 106 (Fla. 3d DCA 2001)…s-examination, prosecutors are to be allowed “wide leeway” in order to prevent defendants from being able to “frustrate the truth-seeking function of a trial by presenting tailored defenses insulated from effective challenge.” See Lebowitz v. State, 343 So. 2d 666, 667 (Fla. 3d DCA 1977) (quoting Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, 97 n. 7 (1976). See also, Geralds v. State, 674 So. 2d 96 (Fla.1996) (cross examination not confined to identical details testified to in chief; extends to a…
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Mann v. State, 787 So. 2d 130 (Fla. 3d DCA 2001)…Moreover, he was not charged with arson until after the fire officials had completed their investigation. Thus, this issue is squarely controlled by this court’s decisions in Reaser v. State, 356 So. 2d 891 (Fla. 3d DCA 1978) and Lebowitz v. State, 343 So. 2d 666 (Fla. 3d DCA 1977). In Reaser, we held that a defendant’s pre-custody failure to offer the police the defense he later asserted at trial when he knew that he was likely to be charged with a crime, can be used to impeach him at trial after he had vol…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Doyle v. Ohio, 426 U.S. 610 (U.S. 1976)
- Tafero v. State, 223 So. 2d 564 (Fla. 3d DCA 1969)
- Lebowitz v. State, 313 So. 2d 473 (Fla. 3d DCA 1975)
- Carey v. Echevarria, 429 U.S. 808 (U.S. 1976)
- Cali v. State, 111 So. 2d 703 (Fla. 2d DCA 1959)