Brazil v. State, 82-1914

• Decision Date: 20 April 1983
• Docket Number: No. 82-1914,82-1914
• Citation: Brazil v. State, 429 So.2d 1339 (Fla. App. 1983)
• Parties: Jeffrey BRAZIL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1339

429 So.2d 1339

Jeffrey BRAZIL, Appellant, v.STATE of Florida, Appellee.

No. 82-1914.

District Court of Appeal of Florida Fourth District.

April 20, 1983.

Rehearing Denied May 12, 1983.

Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.

DELL, Judge.

Jeffrey Brazil appeals his conviction and ten year prison sentence for sexual battery.

At trial, the victim identified appellant as one of her assailants and described the events of the sexual battery.The State introduced appellant's confession through a police officer who testified that appellant voluntarily made a statement admitting his involvement in the sexual battery.Appellant did not take the stand nor did he present any testimony in his own behalf, but relied upon cross examination and argument to defend against the charge.

During closing argument the prosecutor responded by making the following remarks:

I have given you everything there is, but ask Mr. Staab this question for me when he gets up before you finally go back into your deliberations.He indicated to you there were massive conflicts in the testimony.The witnesses couldn't be believed.

I presume Jeff Brazil based on that analysis could not be believed.Ask him why?Ask him that question for me.When he has failed to answer that question for you, go back to that jury room to your deliberations....

Appellant immediately objected, moved for mistrial, and argued that the prosecutor's comments called attention to the fact that appellant did not testify.The court denied appellant's motion for mistrial and this appeal followed.

Appellant contends that the trial court erred in failing to grant his motion for mistrial because the prosecutor's comment constituted an improper comment on appellant's failure to testify.

Both parties agree that a prosecutor's comment on the right of a defendant to remain silent requires reversal.The State contends that its remarks constituted a fair response to defense counsel's argument impeaching the credibility of the victim and further argues that the jury could not have interpreted it as a comment on appellant's failure to testify, citing Williams v. Wainwright, 673 F.2d 1182(11th Cir.1982).Williams holds that a prosecutorial reference to the "uncontradicted" state of the evidence constitutes an impermissible comment on the defendant's right to remain silent only if the prosecutor's manifest intent was to so comment or the remark was such that the jury would naturally and necessarily take it to be such a comment.

In Florida, under Florida Rule of Criminal Procedure 3.250, the prohibition against any comment on the failure of the accused to testify applies without regard to the character of the comment, or the prosecutor's intent or motive in making it.If the comment is subject to an interpretation which would bring it within the prohibition, the comment's susceptibility to a different, valid construction does not remove it from the operation of the rule.Childers v. State, 277 So.2d 594(Fla. 4th DCA1973).The Supreme Court in David v. State, 369 So.2d 943(Fla.1979), held that any comment which is fairly susceptible of being interpreted by the jury as referring to a criminal defendant's failure to testify constitutes...