Jones v. State
Decision Date | 07 April 1967 |
Docket Number | No. 664,664 |
Parties | John Edward JONES, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Steadman S. Stahl, Jr., of Houston, Easthope & Stahl, Fort Lauderdale, for appellant.
Earl Faircloth, Atty. Gen., James T. Carlisle and Fred T. Gallagher, Asst. Attys. Gen., Vero Beach, for appellee.
Appellant (defendant) herein was convicted of first degree murder and sentenced to life imprisonment, seeks reversal of his conviction on remarks made by the assistant state attorney in argument to the jury inferentially commenting upon defendant's failure to testify in his own behalf.
The remarks purported to be in violation of F.S.A. § 918.09 1 are as follows:
'These are the acts and conduct of the defendant.
'And you look--and you look at those witnesses who have testified there on the witness stand and you ask yourself: Is there any doubt in my mind that this guy knew in the world what he was doing?
'Now, where is the evidence that says that he didn't know what he was doing?
'* * *
(Emphasis added.)
Florida Statute, Section 918.09, F.S.A. supra, was designed to protect the defendant in a criminal case from having the jury consider his failure to take the witness stand on his own behalf as even the slightest suggestion of guilt. Way v. State, Fla.1953, 67 So.2d 321.
In Tolliver v. State, Fla.App.1961, 133 So.2d 565, at page 566, the history and significance of F.S. § 918.09, F.S.A. is explained as follows:
Furthermore, the remark by the assistant state attorney referred inferentially that there was no evidence proffered by the defendant to explain or contradict the evidence of the state. We find this to be most prejudicial to the defendant.
In Singleton v. State, Fla.App.1966, 183 So.2d 245, the court stated:
'* * * And when the defendant elects not to testify, it is error to refer to the State's evidence as being unexplained or uncontradicted, or undenied (overruling prior cases which held such comment to be permissible) Way v. State, Fla.1953, 67 So.2d 321; Trafficante v. State, supra (Fla., 92 So.2d 811).'
To determine whether the comments of the assistant state attorney are susceptible of the inference that the defendant's silence was brought to the jury's attention it should be noted that his remarks from his argument, cited above, in referring to the bears a 'close grammatical proximity.' The grammatical proximity of the two sentences appears to us to point to the inescapable conclusion that reference was being made to the fact that the defendant had failed to take the witness stand and testify on his own behalf.
The judgment appealed from is hereby reversed and remanded for a new trial.
Reversed and remanded.
The question presented is admittedly a borderline question. However, a careful reading of the opening and closing remarks of the prosecuting attorney at the conclusion of the trial convinces me that such comments do not present an improper reference to the failure of the defense to rebut the testimony presented by the state. There were numerous witnesses for the state and for the defendant, and the prosecuting officers must not be so restricted that they cannot comment upon the deficiencies of the testimony presented in the defense of a criminal case.
In my opinion the correct rule in Florida is as stated in Clinton v. State, 1908, 56 Fla. 57, 47 So. 389, by Justice Cockrell when he said:
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Boatwright v. State, 82-2033
...in the prosecution of a murder case, found them to be proper, and reversed the split decision of this court, in Jones v. State, 197 So.2d 308 (Fla. 4th DCA 1967), which had granted a new trial. Jones is typical of pre-Murray decisions of this state's highest court when determining whether p......
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State v. Jones
...verdict could not stand because of improper comments by the State Attorney regarding defendant's failure to testify. See Jones v. State, Fla.App.1967, 197 So.2d 308. One of the defenses in the trial court was a plea of not guilty of reason of insanity. Several medical experts testified, som......
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Williams v. State, 1136
...v. State, Fla.1958, 104 So.2d 524; Trafficante v. State, Fla.1957, 92 So.2d 811; Way v. State, Fla.1953, 67 So.2d 321; Jones v. State, Fla.App.1967, 197 So.2d 308; Flaherty v. State, Fla.App.1566, 183 So.2d 607; Singleton v. State, fla.App.1966, 183 So.2d ...