Jackson v. State, 82-1843

• Decision Date: 13 July 1984
• Docket Number: No. 82-1843,82-1843
• Parties: Merrill JACKSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 456

453 So.2d 456

Merrill JACKSON, Appellant, v. STATE of Florida, Appellee.

No. 82-1843.

District Court of Appeal of Florida,

Fourth District.

July 13, 1984.

Rehearing Denied Aug. 15, 1984.

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

Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.

WALDEN, Judge.

Merrill Jackson was convicted of second degree murder based on the fatal stabbing of Jake Robinson and sentenced to life imprisonment. He appeals. We reverse and remand for a new trial.

There was one alleged eye-witness, Jesse Bac. Despite diligent efforts, Bac could not be located at trial time and so was not available as a witness. Initially, Bac implicated Jackson. When his discovery deposition was taken, Bac apparently changed his story so as to exonerate Jackson.

Jackson's offer of Bac's deposition into evidence was rejected. We affirm this decision upon authority of Terrell v. State, 407 So.2d 1039 (Fla. 1st DCA 1981).

Moreover, Bac's deposition was taken for discovery purposes by Jackson under Rule 3.220(d), Florida Rules of Criminal Procedure, and not under the auspices of Rule 3.190(j), Florida Rules of Criminal Procedure, which latter rule is for the purpose of perpetuating testimony.

We disagree with Jackson's argument that Bac's deposition was admissible under Section 90.804(2)(a), Florida Statutes (1982):

(2) Hearsay exceptions.--The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness: (a) Former testimony.--Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or re-direct examination. [Emphasis added.]

Here the State did not attend the taking of Bac's discovery deposition although noticed. Inasmuch as Bac had previously implicated Jackson and thus had been listed as a State's witness, we feel that the State did not have a similar motive to develop Bac's testimony by direct, cross, or re-direct examination. It had no reason to expect that Bac would not be present for trial at which time, in the event Bac should recant and become hostile, the State could cross-examine and impeach Bac. Again, Bac's deposition was not taken so as to perpetuate his testimony. Had it been so taken, the result would be different.

We now come to the matter that causes this Court to reverse and remand for a new trial, that being the prosecutor's comment during voir dire on Jackson's right to remain silent during trial.

During voir dire, the prosecutor stated to the jury panel:

MR. WALSH: NOW, ON PERRY MASON EITHER THE PERSON CONFESSED OR SOMEONE IS GOING TO STAND UP IN THE BACK OF THE ROOM IN TWO OR THREE DAYS, AND SAY, "I DID IT."

OKAY, NOW OBVIOUSLY MOST CASES AREN'T LIKE THAT. AND THERE IS NOT A CONFESSION IN THIS CASE. WOULD ANYONE BELIEVE THAT THIS INDIVIDUAL COULD NOT HAVE COMMITTED THE CRIME, SIMPLY BECAUSE HE DID NOT CONFESS TO THAT CRIME?

The defense promptly objected. Objection sustained. However, the defense's failure to contemporaneously move for mistrial thus failed to preserve the issue for appeal. Later, during voir dire, the prosecutor exchanged the following with a potential juror:

MR. WALSH: OKAY, YOU UNDERSTAND THAT IN PERRY MASON SOMEBODY IS GOING TO STAND UP AT SOME TIME AND SAY THAT THEY DID IT, OR THERE'S A CONFESSION OR SOMETHING LIKE THAT.

MR. BRIGANDI: YEAH.

MR. WALSH: JUST BECAUSE THAT DOESN'T HAPPEN HERE DOESN'T MEAN THAT THAT MAN'S NOT GUILTY, DOES IT?

MR. BRIGANDI: NO.

This time the defense's objection was accompanied with a motion for mistrial.

We hold that the final objection and motion for mistrial sufficiently preserved this matter for appeal. Simpson v. State, 418 So.2d 984 (Fla.1982). We further hold that the remarks constituted prejudicial error and that a mistrial should have been granted upon authority of Simpson, supra; Ramos v. State, 413 So.2d 1302 (Fla. 3d DCA 1982); Cunningham v. State, 404 So.2d 759 (Fla. 3d DCA 1981).

In Donovan v. State, 417 So.2d 674 (Fla.1982), Shannon v. State, 335 So.2d 5 (Fla.1976), and Bennett v. State, 316 So.2d 41 (Fla.1975), it was held that a reversal per se was required when the State commented on the right of the accused to remain silent before the jury, regardless of the harmless error rule. These cases have not been expressly overruled or withdrawn.

In State v. Murray, 443 So.2d 955 (Fla.1984), the Supreme Court of Florida applied the harmless error rule as concerns prosecutorial misconduct in closing argument which attacked the mental state of the defendant in giving his testimony. That is not what happened here wherein the prosecutor commented on the defendant's exercise of his right to remain silent. However, Murray discussed the standard of appellate review in applying the harmless error rule.

Then in Rowell v. State, 450 So.2d 1226 (Fla. 5th DCA 1984) 9 FLW 1177, and DiGuilio v. State, 451 So.2d 487 (Fla. 5th DCA 1984) the Fifth District Court of Appeal wondered if the holding in Murray, supra, signaled an abandonment of the per se reversal rule in cases where there was a comment on a defendant's right to remain silent. Questions as to existence of the per se reversal rule and...