DAN CURRIE GILBERT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dan Currie Gilbert was convicted of grand larceny, but the Florida District Court of Appeal reversed his conviction, finding that the prosecutor's closing argument improperly commented on Gilbert's constitutional right to remain silent by suggesting he should have presented alibi witnesses.
Yes. The prosecutor's remark violated Gilbert's Fifth Amendment right to remain silent by suggesting he had a burden to come forward with an alibi defense and prove his innocence. The error was particularly harmful given the State's weak case, and Gilbert is entitled to a new trial.
[1] A prosecutor's comment on a defendant's failure to present an alibi defense may violate the defendant's constitutional right to remain silent.
[2] A cautionary instruction to the jury to disregard a prosecutor's improper comment on the defendant's silence may not cure the error if the instruction draws undue attenti…
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Join FLexlaw to unlock all legal intelligence“The defendant is not required in any criminal case to testify himself, produce any evidence in his own behalf”
The trial judge's cautionary instruction acknowledging the defendant's right not to testify, yet the court found this instruction insufficient to cure the prosecutor's improper comment.
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Join FLexlaw to unlock all legal intelligenceThe State's case consisted of testimony from a co-defendant who turned State's evidence and a police investigator who relayed hearsay information from…
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PER CURIAM.
Appellant appeals his grand larceny conviction, claiming that a statement made by the prosecutor in his closing argument constituted an improper comment on his consti tutional right to remain silent. We agree and reverse.
The record reveals that the evidence against appellant was composed of (1) the testimony of a co-defendant who had turned State’s evidence, and (2) the testimony of a Pensacola police investigator who stated that inculpatory information against appellant had been given to him by third parties who did not testify at the trial. Appellant did not testify or present a defense. The prosecutor in his closing argument made the following statement:
“I submit to you that the McDaniels [the third parties mentioned in the investigator’s testimony] have done that sufficiently [corroborated the co-defendant’s testimony] in placing Gilbert in Pensacola at the time. And if Gilbert wasn’t in Pensacola, then I submit you probably have some alibi witnesses to tell us exactly where he was, but we don’t have that, and so I submit — ”
Appellant’s counsel objected and moved for a mistrial. The court denied the motion and gave the jury the following cautionary instruction:
“Ladies and gentlemen of the jury, the state attorney made a comment as to the defendants being placed in Pensacola, and made the further comment that should he not have been in Pensacola he probably could have had an alibi or some witnesses to testify. The defendant is not required in any criminal case to testify himself, produce any evidence in his own behalf, so I will caution you to disregard the inadvertent comment that the state attorney made, and let him proceed on his argument.”
Subsequently, appellant was found guilty by the jury and his motion for a new trial was denied.
We believe that in the circumstances of this case the comment made by the prosecutor and the judge’s subsequent cautionary instruction called an improper amount of attention to the appellant’s lack of an alibi defense and thereby violated his right to remain silent. The prosecutor’s remark may well have tipped the scales against appellant by leaving the jury with the impression that appellant had the burden to come forward with a defense and prove his innocence. That error was particularly harmful here where the State’s case was comprised of the vague, contradictory testimony of the co-defendant and little else. We believe appellant should be afforded a new trial.
The judgment and sentence are reversed and the cause remanded for a new trial.
McCORD, C. J., and MILLS and ERVIN, JJ., concur.
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Fidel Romero v. State, 435 So. 2d 318 (Fla. 4th DCA 1983)…l rights. The first is the defendant’s right to remain silent which places a concommitant obligation on the state not to comment on the defendant’s exercise of that right. In this context, such a comment is prejudicial error. E.g., Gilbert v. State, 362 So. 2d 405 (Fla. 1st DCA 1978). The second is the presumption of innocence, again to be considered together with the state’s obligation to come forward with evidence sufficient to prove the defendant guilty beyond a reasonable doubt. Thus, a comment that indic…
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Bayshore v. State, 437 So. 2d 198 (Fla. 3d DCA 1983)…whole issue of alibi was raised by [*200] the state, we find that the prosecutor’s comments may have led the jury to believe that appellant had the burden of proving his innocence. Dixon v. State, 430 So. 2d 949 (Fla. 3d DCA 1983); Gilbert v. State, 362 So. 2d 405 (Fla. 1st DCA 1978). See also Salazar-Rodriguez v. State, 436 So. 2d 269 (Fla. 3d DCA 1983); Michaels v. State, 429 So. 2d 338 (Fla. 2d DCA 1983). For these reasons this cause is reversed and remanded for a new trial.…
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Dixon v. State, 430 So. 2d 949 (Fla. 3d DCA 1983)…ave led the jury to believe that the defendant had the burden of proving his innocence, the defendant is entitled to a new trial. Compare Wright v. State, 363 So. 2d 617 (Fla. 1st DCA 1978), cert. denied, 372 So. 2d 471 (Fla.1979); Gilbert v. State, 362 So. 2d 405 (Fla. 1st DCA 1978); Young v. State, 280 So. 2d 13 (Fla. 2d DCA 1973) with Jacobs v. State, 389 So. 2d 1054 (Fla. 3d DCA 1980), pet. for review denied, 397 So. 2d 778 (Fla.1981); Weeks v. State, 363 So. 2d 176 (Fla. 4th DCA 1978), Shapiro v. State,…