Gosney v. State, 78-2334
| Decision Date | 16 April 1980 |
| Docket Number | No. 78-2334,78-2334 |
| Citation | 382 So.2d 838 |
| Parties | Charles Gale GOSNEY, Appellant, v. STATE of Florida, Appellee. /T4-272. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, Gregory C. Smith, Legal Intern, and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for appellee.
Charles Gale Gosney was convicted of aggravated assault and attempted aggravated assault after a jury trial. He raises two primary points on appeal: first, that the prosecutor's remarks during voir dire examination constituted improper comment on the appellant's right to remain silent; and second that certain comments by the prosecutor during closing argument were so inflammatory and outrageous as to have denied him a fair trial.
While the prosecutor was addressing the prospective jurors, he asked whether any of them would not want to serve on the panel because it was an aggravated assault case. One juror responded: The juror continued to express doubts about being open-minded. 1 The prosecutor then said: Defense counsel objected and moved for a mistrial on improper comment. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Clark v. State, 363 So.2d 331 (Fla.1978). The trial court took the matter under advisement, but before the prosecution completed its case, it denied the motion. The appellant took the stand in his own defense and testified about the events leading to the charges against him. His testimony was contradicted by the state's witnesses Clara Randall and Philip A. France, and the jury chose to believe them rather than Gosney.
Whether or not the prosecutor's remark is improper comment depends upon the full context in which it was made at the voir dire, and whether the jury could fairly conclude the prosecutor meant that the defendant, if innocent, could explain the circumstances, but if guilty, would not. David v. State, 369 So.2d 943 (Fla.1979). The context of these challenged remarks related to whether a juror could keep an open mind, until both the state and the defense presented their "sides" of the case. The "side" of a case could be other witnesses, and argument by counsel. It need not be construed as a reference to testimony by the defendant, and in the context in which the remarks occurred a quarrelsome juror uncertain about keeping an open mind we do not think the jurors fairly or even possibly understood it as a reference to the defendant's possible future failure to testify at the trial. State v. Jones, 204 So.2d 515 (Fla.1967).
The testimony established that the appellant threatened Clara Randall with a knife carried in his hand; and that she retreated to her home, locked the screen and obtained a gun to defend herself. She said he had a wild, angry look in his eyes, and she was very frightened. Philip A. France, Mrs. Randall's insurance agent, drove up to her house, but upon seeing the appellant, he decided not to stop. Gosney waived his arms and frightened France by the wild angry look on his face. France noted the motorcycle chain on his belt, and the knife sheath and belt around his waist. He saw Gosney running after him, with his hands near the knife sheath. France speedily turned his car around and sped past Gosney, out of the neighborhood.
Gosney testified that he had previously been convicted of some unspecified crimes, and that he kept three Doberman Pinchers at his home. When...
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...and whether the jury could fairly conclude that the intended inference was that the defendant stood mute at that time. Gosney v. State, 382 So.2d 838 (Fla. 5th DCA 1980). Based on this standard, we hold that the statement was not a comment on the defendant's postarrest silence. Indeed, the ......
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