Danford v. State, 85-1448

• Citation: 11 Fla. L. Weekly 1471,492 So.2d 690
• Decision Date: 02 July 1986
• Docket Number: No. 85-1448,85-1448
• Parties: 11 Fla. L. Weekly 1471 Michael E. DANFORD, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 690

492 So.2d 690

11 Fla. L. Weekly 1471

Michael E. DANFORD, Appellant, v. STATE of Florida, Appellee.

No. 85-1448.

District Court of Appeal of Florida,

Fourth District.

July 2, 1986.

Rehearing and Rehearing En Banc Denied Sept. 10, 1986.

Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.

LEVY, DAVID L., Associate Judge.

The appellant was indicted by the Grand Jury for three counts of sexual battery on a child eleven years of age or under. The indictment charged that the appellant had caused his penis to penetrate or unite with the victim's vagina (count I), her mouth (count II), and her anus (count III).

At his arraignment, the appellant stood mute. Accordingly, pursuant to Rule 3.170(c) of the Florida Rules of Criminal Procedure, the Court ordered that a plea of not guilty be entered on the appellant's behalf. As a result thereof, the clerk made a notation on the indictment to the effect that the defendant (appellant herein) "stood mute in Open Court. Not Guilty plea entered by Court."

Over the appellant's objections, the jury was allowed to receive and consider the indictment (with the above-described notations on it) during their deliberations. The jury was apparently allowed access to the indictment during their deliberations pursuant to the provisions of Rule 3.400(a) of the Florida Rules of Criminal Procedure.

Rule 3.250 of the Florida Rules of Criminal Procedure states in part:

... no accused person shall be compelled to give testimony against himself, nor shall any prosecuting attorney be permitted before a jury or court to comment on the failure of the accused to testify in his own behalf ....

Although the provisions of rule 3.250 expressly apply to prosecutorial comments, the rule has been extended to include comments by judges to a jury, see McClain v. State, 353 So.2d 1215, 1217 (Fla.3d DCA 1977), and to the comments of an attorney of a co-defendant, Sublette v. State, 365 So.2d 775, 778 (Fla.3d DCA 1978), cert. dismissed, 378 So.2d 349 (Fla.1979). As specifically pointed out in Sublette at page 778, "it is the fact of comment rather than the source of comment that effects denial of the right to remain silent."

In State v. Kinchen, 490 So.2d 21 (Fla.1985), the Supreme Court of Florida reaffirmed the use of the "fairly susceptible" standard, instead of the more restrictive federal test that the comment was "manifestly intended or was of such character that the jury would materially take it to be a comment on the failure of the accused to testify." In Kinchen the court, in essence, clarified the "fairly susceptible" test as relating to those cases where it was fairly susceptible if in a fair manner, equitably, justly, legitimately, and without unfair advantages, it would be viewed as a comment on the defendant's failure to testify. The court opted for the...