McClain v. State, 76-1687
| Decision Date | 27 December 1977 |
| Docket Number | No. 76-1687,76-1687 |
| Citation | 353 So.2d 1215 |
| Parties | Theodis McCLAIN, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Paul Morris and Kurt Marmar, Asst. Public Defenders, for appellant.
Robert L. Shevin, Atty. Gen., Joel D. Rosenblatt and Edwin D. Davis II, Asst. Attys. Gen., for appellee.
Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
By information the appellant was charged in four counts with possession of four separate controlled substances on a certain date. On trial before a jury he was found guilty on all counts, was so adjudged and was sentenced to two years' imprisonment on each count, with provision for the sentences to be served consecutively. Defendant's motion for new trial was denied and he appealed.
In the proceedings prior to trial the defendant was represented by an assistant public defender. When the case came on for trial the defendant's attorney moved to suppress the contraband evidence. The motion to suppress was heard and denied, and the court inquired of the parties as to their readiness to select a jury.
At that point the defendant announced to the court that he no longer desired to have a public defender defend him, and that he proposed to defend himself. The trial so proceeded.
One of the two contentions made by the appellant is that the court committed reversible error by failing to make sufficient inquiry into the circumstances to determine whether there was an intelligent and competent waiver by the accused of his right to be represented by an attorney at his trial, citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942); VonMoltke v. Gillies, 332 U.S. 708, 722-724, 68 S.Ct. 316 (1948).
On consideration of the record and briefs we hold that contention of the appellant has merit. On this record, it does not appear that the court adequately complied with the serious protective duty thus involved. We will not outline the details and extent of essential investigation. The inquiry by the court here was limited to questioning the defendant as to his desire and determination to go to trial without an attorney, either a public defender or other counsel, and to advising the defendant as to his right to counsel and informing him of the difficulty to be encountered by one in defending himself.
A second contention by the defendant is that reversible error was committed when the judge, during the time of final argument by defendant, commented on the failure of the defendant to have testified in his own behalf. That came about when the defendant, in argument at the close of the case, proceeded to relate facts bearing on the case which were not in evidence; that is, appeared to be testifying rather than arguing the case.
In sustaining an objection by the prosecutor, the court said:
Fla.R.Crim.P. 3.250 prohibits prosecutorial comment before a jury or Court on the failure of an accused to testify in his own behalf. Such comment when made has been held repeatedly to constitute reversible error. Prior to the decision of the Supreme Court in State v. Jones, 204 So.2d 515 (Fla.1967) the error was considered to be of such degree of prejudice as to be incurable by instruction to disregard it, and to invoke for it the exception that it should call for the granting of mistrial by the court, or on appeal for...
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