Martin v. State
| Decision Date | 06 July 1977 |
| Docket Number | No. 76-1035,76-1035 |
| Citation | 356 So.2d 320 |
| Parties | Theophilus A. MARTIN, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Law Offices of Joe N. Unger and Mark King Leban, Miami, for appellant.
Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., and Paul Mendelson, Legal Intern, for appellee.
Before PEARSON, HAVERFIELD and HUBBART, JJ.
Theophilus Martin appeals his conviction for aggravated assault and unlawful possession of a firearm and raises three points on appeal, of which only the second is necessary to consider, to wit: the trial court erred in overruling defendant's objection and in failing to declare a mistrial when the prosecutor persistently cross-examined the defendant about his failure to make an exculpatory statement to the police after being advised of his rights to remain silent. We find this point has merit.
During the prosecutor's recross examination of the defendant, the following colloquy occurred:
The principle of law is now well established that any comment upon an accused's exercise of his right to remain silent is reversible error without regard to the harmless error doctrine. Bennett v. State, 316 So.2d 41 (Fla. 1975); Shannon v. State, 335 So.2d 5 (Fla. 1976). Recently this legal principle has been extended to the point that a deprivation of due process results when a prosecutor is permitted to use the silence of an accused at the time of his arrest to impeach his explanation subsequently offered at trial. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Davis v. State, 342 So.2d 987 (Fla.3d DCA 1977); Smith v. State, 342 So.2d 990 (Fla.3d DCA 1977); Thomas v. State, 342 So.2d 991 (Fla.3d DCA 1977).
The prosecutor's cross-examination of the defendant concerning the defendant's pretrial silence was improper and, accordingly, defendant's convictions and sentences are reversed and the cause remanded to the trial court for a new trial.
Reversed and remanded.
I think that it should be mentioned that we are here dealing with a trial before the court without a jury. The State urges that we should apply a more liberal rule in determining whether the cross-examination of the defendant to bring out the fact of his silence after receiving the Miranda warning The State's argument that this is a retroactive application of the holding of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), is not factually true in view of the fact that the opinion in Jones v. State, 200 So.2d 574 (Fla.3d DCA 1967), held that the admission of evidence of a defendant's silence after being informed of his Miranda rights was fundamental error. I, therefore, concur in the opinion and the decision to reverse.
was reversible error, relying on Prince v. Aucilla River Naval Stores Co., 103 Fla. 605, 137 So. 886 (1931); and Belcher Towing Co. v. Board of County Commissioners, 233 So.2d 456 (Fla.3d DCA 1970). I cannot agree with the State's argument because I feel that a defendant has the same constitutional rights in every trial. Nevertheless, because other courts may disagree with this decision on these circumstances, I think our holding must be clear.
Before HAVERFIELD, C. J., and PEARSON and HUBBART, JJ.
ON PETITION FOR REHEARING
In this petition for rehearing, the issue has surfaced as to whether the error complained of (i.e., the admissibility of the defendant's post-arrest silence) is fundamental as well as constitutional as a result of the State's contention that the defendant did not properly preserve this error for appellate review. Contrary to this contention, we believe that defense counsel made sufficient objection to the admission of evidence concerning defendant's post-arrest silence as to properly preserve this issue on appeal. Therefore, it is unnecessary to resolve the issue of whether such error is fundamental as well as constitutional.
Petition denied.
I would grant the state's petition for rehearing and affirm the conviction herein. In my judgment, the error complained of concerning the admissibility of the defendant's post-arrest silence was not properly preserved for appellate review and the admission of such evidence was not fundamental error.
The error complained of herein was the admission of the defendant's post-arrest silence elicited from the defendant on cross examination by the state. This testimony was not objected to by defense counsel except on three occasions and then only after some or most of the evidence complained of had been submitted. Two of these objections were sustained. The third objection was made on the sole ground that the question was argumentative and that...
To continue reading
Request your trial
-
Porter v. State
...defendant's post-arrest assertion of his right to counsel and his failure to make a statement thereafter. In Martin v. State, 356 So.2d 320 (Fla. 3d DCA 1977), case no. 76-1035, filed July 6, 1977 (appeal pending on a petition for rehearing), a similar question was presented. In that case, ......
-
Cunningham v. State, 80-3
...41 (Fla.1975); Peterson v. State, 405 So.2d 997 (Fla. 3d DCA 1981); Watkins v. State, 363 So.2d 575 (Fla. 3d DCA 1978); Martin v. State, 356 So.2d 320 (Fla. 3d DCA 1977); Thomas v. State, 342 So.2d 991 (Fla. 3d DCA 1977), cert. denied, 353 So.2d 679 (Fla.1977); Smith v. State, 342 So.2d 990......
-
Martin v. State, 76-1035
...ON RECONSIDERATION, PURSUANT TO REMAND PER CURIAM. Subsequent to the filing of our former opinion in this cause, see Martin v. State, 356 So.2d 320 (Fla. 3d DCA 1978), the State of Florida petitioned for certiorari in the Supreme Court of Florida. The Supreme Court granted certiorari and re......