Mitchell v. State
| Decision Date | 17 December 1974 |
| Docket Number | No. 74--724,74--724 |
| Citation | 304 So.2d 466 |
| Parties | Ronnie MITCHELL, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Phillip A. Hubbart, Public Defender, Kathleen Gallagher, Asst. Public Defender, and Paul Morris, Legal Intern, for appellant.
Robert L. Shevin, Atty. Gen., William L. Rogers, Asst. Atty. Gen., and Margarita Esquiroz, Legal Intern, for appellee.
Before HENDRY, HAVERFIELD and NATHAN, JJ.
From a conviction for the crime of robbery, the defendant appeals contending first that the state attorney violated his privilege against self-incrimination by indirectly commenting upon the defendant's failure to take the stand and testify in his own behalf.
The record reveals that in his opening remarks the defense attorney stated that the defendant would take the stand and testify that he had worked for the victim and that the defendant lives in the vicinity where the robbery occurred and the victim knew the defendant.
However, the defendant never did testify, and during his closing remarks to the jury, the prosecutor made the following comment which it is now urged constitutes reversible error:
'I have just one final point that I would like to state, and we brought you all the evidence that we said we were going to bring you and a little more.
'The defense attorney asked the officer on what he based his arrest on and so the officer answered him by saying there was another person who would not come to court.
'I am actually reluctant to argue that kind of testimony because really I think that you ought to base your decision on the testimony you hear from the witness stand.
'Please consider what you heard from the witness stand.
'That is what the State promised you and what you heard and compare that, ladies and gentlemen and compare it against what the defense promised you and what you heard.
'Do you remember the opening statement of the defense?
'The defense said they would prove to you that the defendant was no where near the vicinity.
'The defense in it's (sic) opening statement promised you that you would hear testimony that the defendant worked for Mr. Fashik, knows him, knows his address and also knows his telephone number.
'MR. McGUIRK: That was the evidence that the defense promised you. You never heard it.
'Ladies and gentlement by the uncontraverted evidence supplied to you in this case I suggest to you that the defendant is indeed guilty and that he has indeed been proven guilty beyond any doubt that is reasonable and I ask only that you case your verdict on the evidence. . . .'
Defendant cites a line of Florida cases bearing upon the question of a prosecutor's improper comment on the failure of the accused to testify in his own behalf in violation of RCrP 3.250 (formerly Fla.Stat. § 918.09, F.S.A.) 1
The state has replied by citing several recent cases in which it was held that comment by the prosecutor during closing argument did not amount to remarks upon the defendant's failure to testify. 2
We have studied carefully the cited cases in light of the record in this case. It is our conclusion that the statements made by the prosecutor were not an indirect comment upon the defendant's failure to testify.
The defendant was relying upon an alibi defense. In his opening remarks, defense counsel emphasized the alibi defense and as part of the defendant's case, two witnesses were called to testify with respect to the defendant's presence elsewhere at the time the robbery was committed.
In addition, counsel informed the jury during the defense's opening statement, 'We will have testimony of my own client, himself, and he will testify that he does know Mr. Fashik, the alleged victim, and in fact he worked for Mr. Fashik a couple of years ago, part-time, and that he just lives a block and half or two blocks from that area and that he did work for him and that Mr. Fashik knows him, knows his address, and knows his phone number.'
Then, on cross-examination, the defense counsel asked Fashik whether in fact he knew the defendant and whether he had ever employed him. Fashik replied that he had hired many youngsters and could not recall if he ever employed the defendant.
The record demonstrates that the trial judge recalled both defense counsel's opening remarks as well as the testimony by Fashik on cross-examination. When the defendant moved for a mistrial following the prosecutor's remarks, the court stated:
'I will deny that motion because I think it was reasonable in the light of the opening statements made by counsel and the testimony that was attempted to be elicited from the victim.
'Also by the fact and supported by the fact that if the defense chooses I will give the standard charges leading to the fact that the defendant does not have to testify and any inferences can be drawn. . . .'
In our view, the remarks made by the prosecution were fair and general...
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Williams v. State
...instructed on the penalty provisions of lesser-included offenses. James v. State, 393 So.2d 1138 (Fla. 3d DCA 1981); Mitchell v. State, 304 So.2d 466 (Fla. 3d DCA 1974); Settle v. State, 288 So.2d 511 (Fla. 2d DCA 1974).10 Where it is clear that the jury was given a full opportunity to exer......
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Howard v. State, 74-1781
...State, Fla.App.1973, 280 So.2d 479; Williams v. State, Fla.1973, 285 So.2d 13; Damon v. State, Fla.1973, 289 So.2d 720; Mitchell v. State, Fla.App.1974, 304 So.2d 466; Johnson v. State, Fla.1974, 308 So.2d ...
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James v. State, 80-682
...obliged to instruct only on penalties for the offense charged, not on the penalties for any lesser-included offenses. Mitchell v. State, 304 So.2d 466 (Fla. 3d DCA 1974); Settle v. State, 288 So.2d 511 (Fla. 2d DCA 1974). 1 Thus, the defendant was not entitled to have the jury instructed on......
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Durrant v. State
...and defense's closing argument. 771 So.2d at 605; see also Rivera v. State, 840 So.2d 284, 287 (Fla. 5th DCA 2003); Mitchell v. State, 304 So.2d 466, 469 (Fla. 3d DCA 1974). We have found no case where a statement by defense counsel in opening statement alone was determined to invite a comm......