EARSEL REASER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a prosecutor's comment on a defendant's pre-arrest silence, when the defendant failed to voluntarily come forward with exculpatory information, is permissible impeachment.
The defendant was convicted of grand larceny. Several days elapsed between the incident and his arrest, during which he fled the scene leaving an easi…
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PER CURIAM.
Appellant, defendant below, appeals his conviction of grand larceny pursuant to a jury verdict, contending that the prosecutor’s comment on his post-arrest silence requires reversal. A careful review of the record reveals that the comment at issue did not refer to defendant’s silence after he was placed in custody, but to his failure to voluntarily go to the police when he knew he was likely to be charged with a crime, and offer them the defense he later asserted at trial, viz., that someone else stole the property at issue.
Several days had elapsed between the incident and the defendant’s arrest. Defendant had scuffled with the complainant prior to fleeing the scene on foot, leaving his automobile behind. The car was easily traceable to him since it contained several identifying documents, and complainant could readily recognize him. Defendant should have known he was likely to be charged with a crime, and it is reasonable to believe that one who fears he is about to be charged with a crime committed by another would seek to exonerate himself as quickly as possible by volunteering exculpatory information to the police.
A defendant’s silence in such circumstances can be used at trial to impeach him after he has voluntarily taken the stand and offered testimony which is inconsistent with his earlier silence. The prosecutor’s comment was legitimate impeachment based on pre-arrest silence, not a comment on post-arrest silence, and therefore we find no error in the judgment below. Lebowitz v. State, 343 So. 2d 666 (Fla.3d DCA 1977); United States ex rel. Burt v. New Jersey, 475 F. 2d 234 (3d Cir. 1973).
Affirmed.
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State v. Hoggins, 718 So. 2d 761 (Fla. 1998)…the State’s assertion, this is not a prearrest, pre-Miranda situation like the one in Jenkins, where comments 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…1 / 2
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Ruiz v. State, 378 So. 2d 101 (Fla. 3d DCA 1979)…the fact that he fled instead of remaining at the scene and telling the officer why he was there. We reject this contention. While the rule in question indeed applies only to references to custodial or post-apprehension silence, see Reaser v. State, 356 So. 2d 891 (Fla. 3d DCA 1978), cert. denied, 366 So. 2d 884 (Fla.1978); Cridland v. State, 338 So. 2d 30 (Fla. 3d DCA 1976), the prosecutor’s remark in this case simply cannot properly be interpreted in the manner only now argued by the state.1 Fairly read, it…
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Mann v. State, 787 So. 2d 130 (Fla. 3d DCA 2001)…nce, Mann was not in custody for the [*135] arson charge. 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 cr…
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
- United States ex rel. Edward A. Burt v. State OF NEW Jersey & Howard Yeager, 475 F.2d 234 (3d Cir. 1973)
- Lebowitz v. State, 343 So. 2d 666 (Fla. 3d DCA 1977)