Clark v. State

• Citation: 336 So.2d 468
• Decision Date: 28 July 1976
• Docket Number: No. 74--889,74--889
• Parties: James Francis CLARK, a/k/a Robert Francis Clark, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 468

336 So.2d 468

James Francis CLARK, a/k/a Robert Francis Clark, Appellant, v. STATE of Florida, Appellee.

No. 74--889.

District Court of Appeal of Florida, Second District.

July 28, 1976.

Rehearing Denied Sept. 10, 1976.

Jack O. Johnson, Public Defender, Bartow, and Ellen Condon, Asst. Public Defender, Tampa, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.

GRIMES, Judge.

This is an appeal from a conviction for breaking and entering with intent to commit grand larceny.

During the presentation of the state's case, one of the arresting police officers testified as follows:

'Q. All right. Did you have occasion to talk with the defendant any further at the scene of the crime?

A. Only when I advised the defendant that he was under arrest for breaking and entered and read him his rights from the card supplied by the State Attorney's Office.

Q. All right. After you had advised him of his rights did he have occasion to say anything to you at all?

A. He refused to make any statements to me, sir, other than he knew nothing about the incident that had occurred at the tavern.'

Defense counsel did not object to this testimony or move for a mistrial.

Even though part of the statement attributed to the appellant was self serving, the reference to appellant's refusal to otherwise make a statement after being arrested was clearly improper. Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Since the evidence against appellant was strong, the only questions which remain are whether the comment can be considered harmless error or whether appellant waived his right to complain by reason of his counsel's failure to object.

In Bennett v. State, Fla.1975, 316 So.2d 41, our Supreme Court considered the effect of testimony by a fire marshal that the defendant refused to sign a waiver of rights or to make a statement to the police. The court said:

'The first error of which defendant complains was of constitutional dimension and warrants reversal without consideration of the doctrine of harmless error. Jones v. State, (220 So.2d 574 (Fla.App.3d, 1967)) Supra. In any event the error should not be held harmless, as contended by the State, if there is a reasonable possibility that it might have contributed to the conviction. Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).'

Ironically, the U.S. Supreme Court case of Chapman v. California cited therein, which established the doctrine that an error of constitutional dimension Could be harmless, dealt with a case involving impermissible comments by the prosecutor concerning the defendant's failure to testify. However, there is nothing to keep the Florida Supreme Court from placing a stricter construction upon the similar privilege against self incrimination found in our state constitution. Cooper v. California, 1967, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730.

If there is any doubt that our Supreme Court meant what it said in Bennett, this was laid at rest in Shannon v. State, Fla.1976, 335 So.2d 5 (Opinion filed June 30, 1976). In reversing a decision which had held that comments on the petitioner's right to remain silent constituted harmless error, the court observed:

'. . . That decision conflicts with our more recent decision in Bennett v. State, 316 So.2d 41 (Fla.1975), where we held that any comment on an accused's exercise of his right to remain silent is reversible error, without regard to the harmless error doctrine.'

The effect of counsel's failure to object requires a more detailed consideration because the authorities on this point are not in harmony. The cases which will be discussed include not only those pertaining to evidence about the defendant's exercise of his Miranda rights but also those where the prosecutor commented on the defendant having failed to testify at the trial. The analogy between these is viable, we think, because each of the principles for which they respectively stand is grounded upon the defendant's Fifth

Amendment right against self incrimination. Reference to Defendant's Right to Remain Silent is Reversible Error Regardless of Failure to Object.

In Jones v. State, Fla.App.3d, 1967, 200 So.2d 574, the district court of appeal held that a comment that the accused while in custody remained silent in the face of an accusation of guilt was reversible error without objection having been made. The court said:

'. . . Failure to object at trial will not prevent review of the propriety of introduction of evidence, the admission of which constitutes fundamental error (Rule 3.7(i) F.A.R. 31 (32) F.S.A.), or, in a criminal case, when the appellate court deems it to be in the interests of justice that it be reviewed. . . .'

Likewise, the court of appeal in Bostic v. State, Fla.App.4th, 1976, 332 So.2d 349, held that evidence of the defendant's assertion of his Miranda rights and refusal to make a statement to arresting officers required reversal in spite of the absence of an objection. The court said:

'There can be no doubt that the error involving the admission of such testimony is of constitutional and fundamental dimensions, and thus does not require a trial objection to preserve the issue on appeal. The Third District, in Jones v. State, 200 So.2d 574 (Fla.App.3rd, 1967), a decision recently followed and expressly approved by our Supreme Court in Bennett v. State,

supra, squarely so held on facts identical to those before us here.' Erroneous Reference to Defendant's Right to Remain Silent is Waived by Failure to Object.

In State v. Jones, Fla.1967, 204 So.2d 515 (as distinguished from Jones v. State, supra), the Supreme Court held that the failure to object to statements by the prosecutor which were construed by the district court of appeal as commenting upon the defendant's failure to testify constituted a waiver of the right to complain of the comments. On this point, the court first said:

'Adverting now to the failure of defendant's counsel to object in the trial court until after rendition of the verdict of guilty, respondent calls attention to the rule stated in Gordon v. State, (Fla.1958 104 So.2d 524) supra, as follows:

'Ordinarily improper remarks of counsel to the jury can be remedied by appropriate instructions by the trial judge. Consequently under ordinary circumstances such inappropriate remarks will not be reviewed by an appellate court unless timely objection is made in the lower court. This rule, however, is subject to the exception that if the improper remarks Are of such character that neither rebuke nor retraction may entirely destroy their sinister influence then on appeal they may be considered as error even in the absence of an objection in the trial court.' (Emphasis added.)'

The court then observed that prior to Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, when indigent defendants were not offered the services of an attorney, the application of the foregoing exception was necessary to protect the rights of uninformed defendants who were being tried without counsel. Under those circumstances, trial judges were admonished to intervene, Sua sponte, and declare mistrials whenever prejudicial comments were made which could not be corrected by appropriate admonition. However, the court continued:

'At the present time all defendants in criminal trials who are unable to engage counsel are furnished counsel without charge. Application of the exception is no longer necessary to protect those charged with crime who may be ignorant of their rights. Their rights are now well guarded by defending counsel. Under these circumstances further application of the exception will contribute nothing to the administration of justice, but rather will tend to provoke censure of the judicial process as permitting 'the use of loopholes, technicalities and delays in the law which frequently benefit rogues at the expense of decent members of society.'

It has been suggested that some courts today seem to be preoccupied primarily in carefully assuring that the criminal has all his rights while at the same time giving little concern to the victim. Upon the shoulders of our courts rests the obligation to recognize and maintain a middleground which will secure to the defendant on trial the rights afforded him by law without sacrificing protection of society. As Mr. Justice Cardozo explained in Snyder v. Commonwealth of Mass., 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674, 687:

'But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.'

The Court now recants the statement of the exception upon which respondent relies and henceforth will review challenged argument of prosecutors only when an objection is timely made.'

In Farmer v. State, Fla.App.4th, 1976, 326 So.2d 32, upon cross-examination the prosecutor had elicited from the defendant an admission that he had remained silent at the preliminary hearing. After pointing out that this was improper, the court of appeal stated:

'. . . Defendant's counsel initially objected, but then withdrew the objection, apparently because he intended to show on redirect examination that appellant's silence at the preliminary hearing was the result of advice of counsel. There was no motion for a mistrial, no motion to strike this testimony, nor any motion for the court to instruct the jury to disregard such testimony. In short, there was no Judicial error, and we are not inclined to hold it as Fundamental error in view...