Flaherty v. State, 246
| Decision Date | 01 March 1966 |
| Docket Number | No. 246,246 |
| Citation | 183 So.2d 607 |
| Parties | James Edward FLAHERTY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Steadman S. Stahl, Jr., of Houston, East-hope & Stahl, Ft. Lauderdale, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and Arden M. Siegendorf, Asst Atty. Gen., Miami, for appellee.
KANNER, A. O., Associate Judge (Ret.).
With a new trial as his objective, defendant-appellant, James Edward Flaherty, appeals from judgment and sentence of the trial court under which he was found guilty of breaking and entering a building with intent to commit grand larceny and was sentenced to ten years in the state prison. Through his single appeal point, he urges that certain comments of the prosecutor in his final argument to the jury were in violation of the following pertinent portion of section 918.09, Florida Statutes, F.S.A., and were an invasion of his right under it to be secure from comment by the prosecutor upon his failure to take the witness chair and testify:
'* * * but no accused person shall be compelled to give testimony against himself, nor shall any prosecuting attorney be permitted before the jury or court to comment on the failure of the accused to testify in his own behalf, * * *.'
There was no testimony by defendant nor on his behalf. The only evidence offered by the state to identify and connect defendant with commission of the offense of which he was convicted was constituted within two fingerprints discovered on a large spoon found by the police at Broward Drug Store No. 502, which had been the subject of the breaking and entering and from which narcotics and money in the value of more than $100 were alleged to have been taken. A police officer, laboratory technician of the detective division, testified that these prints were identical to certain ones on a fingerprint card of the defendant which the police had taken incident upon his arrest, subsequent to the breaking and entering, for his failure to register as a convicted felon.
Two comments made by the prosecuting attorney in his final argument to the jury are here protested. The first germinated from the prosecutor's remark to the jury to the effect that the requirement of proof of the state was to show defendant's intent, when he entered the store, to take property of more than $100 value, the prosecutor saying also, 'Of course, the fact that he did take it is proof of that intent, isn't it?' continuing that it was known something of more than $100 value was taken and that there must have been an intent to take it. The first comment complained of the followed,
'There is nothing to rebut this evidence * * *,' whereupon defendant's counsel moved for a mistrial, which the court denied.
Prefatory to the second comment, the prosecutor dealt at length with the fingerprint evidence, telling the jury, He climaxed and concluded his final argument to the jury in the words of the second comment,
'Mr. Stahl hasn't argued that possibly he was in there some time during the day and he got his fingerprints on the spoon when he was eating some soup or in some other way, which is a possible out to this thing.'
As to that comment, counsel for defendant interposed no objection.
Upon the court's announcing to the jury that it might retire to consider its verdict, defendant's counsel stated he had a motion. He then renewed the motion for mistrial directed to the first comment and in addition moved for mistrial with reference to the receiving into evidence of the fingerprint card. Out of the ensuing colloquy came the following statement by the court to the prosecutor:
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State v. Jones
...Fla.1957, 92 So.2d 811; Gordon v. State, Fla.1958, 104 So.2d 524; Singleton v. State, Fla.App.1966, 183 So.2d 245; and Flaherty v. State Fla.App.1966, 183 So.2d 607. In addition, the Court of Appeal cites Tolliver v. State, Fla.App.1961, 133 So.2d 565. Upon examination it will be seen that ......
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Jones v. State
...to the manner in which the defendants had testified. There were two defendants; one had testified and one had not. In Flaherty v. State, Fla.App.1966, 183 So.2d 607, a decision of this court, the comment was a clearly improper reference to the fact that the sole defendant did not testify. T......
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Williams v. State, 1136
...before the jury or court to comment on the failure of the accused to testify in his own behalf * * *.' and cites Flaherty v. State, fla.App.1966, 183 So.2d 607, in support of error. As in the case at bar, there was no testimony in behalf of the defendant in the Flaherty case, and the court ......
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Hooks v. State, 41476
...commit reversible error, defendant says that the decision conflicts with Trafficante v. State, 92 So.2d 811 (Fla.1957); Flaherty v. State, 183 So.2d 607 (Fla.App.1966); Otto v. State, 126 So.2d 152 (Fla.App.3rd, 1961); McLendon v. State, 105 So.2d 513 (Fla.App.2d, 1958), and other cases cit......