Bennett v. State, 45285

• Court: United States State Supreme Court of Florida
• Writing for the Court: ADKINS; OVERTON; ENGLAND; ROBERTS; ENGLAND; OVERTON
• Citation: 316 So.2d 41
• Parties: Albert Lee BENNETT, Petitioner, v. STATE of Florida, Respondent.
• Docket Number: No. 45285,45285
• Decision Date: 15 July 1975

Page 41

316 So.2d 41 Albert Lee BENNETT, Petitioner,
v.
STATE of Florida, Respondent. No. 45285. Supreme Court of Florida. July 15, 1975.
Rehearing Denied July 31, 1975.

Edward M. Kay and Joseph A. Varon of Varon, Stahl & Kay, Hollywood, for petitioner.

Robert L. Shevin, Atty. Gen. and C. Marie Bernard, Asst. Atty. Gen., for respondent.

ADKINS, Chief Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, Fourth District, (Bennett v. State, 291 So.2d 686) which allegedly conflicts with another decision of a District Court of Appeal.

The petitioner (hereinafter referred to as defendant) was charged by information with arson in the third degree and possession of a fire bomb. Upon trial by jury, he was acquitted of possession of a fire bomb but found guilty of arson in the third degree.

During the course of the trial, defendant moved for a mistrial because an investigator-witness called by the State let it be known to the jury that defendant refused to sign a waiver of his Miranda rights under the Fifth Amendment to the United States Constitution. The Court denied the motion and subsequently instructed the jury to disregard that part of the testimony.

Page 42

Defendant says that the reference to his refusal to sign a waiver form was a violation of his privilege against self-incrimination granted under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In Jones v. State, 200 So.2d 574 (Fla.App.3d, 1967), the Court adopted the language in Miranda, holding in effect that any comment upon the defendant's standing mute, or refusing to testify, in the face of an accusation was fundamental error requiring a new trial. The Court in its opinion said:

'The determinative question on this appeal is whether the introduction by the state, without objection, of testimony that the accused, while in custody, remained silent in the face of an accusation of guilt of the crime for which he was arrested and charged, constituted reversible error.' (p. 576)

The Court then quoted from Miranda as follows:

'. . . In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.' (Emphasis theirs.) . . .

'No distinction can be drawn between statements which are direct confessions and statements which amount to 'admissions' of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination.' (p. 576)

The Court then held:

'Notwithstanding the fact that the evidence, aside from the testimony complained of, was sufficient to have supported a conviction, we are of the opinion that the administration of justice would best be served in this case by holding that the testimony in question, interdicted by Miranda, was improperly received, and that the resultant error was fundamental.' (pp. 576--577)

The affirmance of the order of the trial judge denying the motion for mistrial (which is a part of the written record of the proceedings in the court under review, as distinguished from the report of the testimony) is in conflict with the holding of the Court in Jones v. State, supra. We have jurisdiction. Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965); Fla.Const., art. V, § 3(b)(3), F.S.A.

The defendant, a 39-year-old white male, lived and worked in Broward County for 19 years. A prosecution witness testified that on January 19, 1972, between 9:40 p.m. and 9:45 p.m., he saw a parked truck with a man behind the wheel on the driver's side. When the witness' headlights struck the occupant of the truck, the driver turned toward the witness, who later identified the driver as the defendant. This witness next noticed two men running from a crane at a construction site towards the truck. A fire began in the crane area and a moment later the entire crane burst into flames. Two men jumped into the truck which was then driven away from the scene.

The witness drove to a filling station where he reported the license number of the truck. The truck was later identified by the license tag as belonging to defendant.

At the trial the defendant claimed alibi, asserting that at the time of the alleged fire bombing he was in a restaurant approximately five miles away. Several witnesses testified that defendant was in the restaurant at the time of the event.

Defendant raises two questions on appeal. He first contends that the trial court erred in denying his motion for a

Page 43

mistrial when the fire marshal testified that defendant refused to sign a waiver of rights and make a statement. The following discourse took place at the trial:

'Q. Would you tell the Court and the jury the circumstances that you saw Mr. Bennett, please?

'A. I saw him on the--I was with Sergeant Pokorny and I saw him on the job site where he was working.

'Q. And did you have occasion to have a conversation with him at that time?

'A. Yes.

'Q....