Nevels v. State, FF-79

• Decision Date: 15 November 1978
• Docket Number: No. FF-79,FF-79
• Citation: 364 So.2d 517
• Parties: Dennis R. NEVELS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 517

364 So.2d 517

Dennis R. NEVELS, Appellant, v. STATE of Florida, Appellee.

No. FF-79.

District Court of Appeal of Florida, First District.

Nov. 15, 1978.

Michael J. Minerva, Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.

MELVIN, Judge.

In obedience to the order entered by the Supreme Court of Florida in the case of Nevels v. State of Florida, 364 So.2d 889, wherein certiorari was granted and the cause remanded for further proceedings in this court consistent with the decision of the Supreme Court of Florida recently rendered in Clark v. State, 363 So.2d 331 (1978), we have reviewed our opinion in the light of Clark v. State, and find the same to be in harmony with Clark.

In Clark v. State, above referred to, the Supreme Court, after discussing various cases dealing with reversible error and the impact thereof when the state attorney makes a comment with reference to the defendant's silence when advised of his Miranda rights and the obligations of the defendant to make appropriate objections and motions at the time of the occurrence of such improper comments, the court applied the "contemporaneous objection" rule. The court observed that the application of such rule will promote the administration of justice in this state.

The court held:

"In reaching this decision, we hold the following:

1. Reversible error occurs in a jury trial when a prosecutor improperly comments upon or elicits an improper comment from a witness concerning the defendant's exercise of his right to remain silent. Likewise, reversible error occurs when any state, defense or court witness in a jury trial spontaneously volunteers testimony concerning the defendant's exercise of his right to remain silent.

2. In a non-jury trial, an improper comment concerning the defendant's exercise of his right to remain silent is not necessarily reversible error, and it may be disregarded by the trial courts; however, it may serve as grounds for appropriate sanctions against the offending prosecutor or witness.

3. No error occurs when defense counsel comments upon or elicits testimony concerning the defendant's exercise of his right to remain silent. The same is true if defense counsel were to improperly suggest to a friendly witness that he 'spontaneously' comment on the defendant's exercise of his right to remain silent so as to give him a mistrial. A defendant may not make or invite an improper comment and later seek reversal based on that comment.

4. When there is an improper comment, the defendant, if he is offended, has the obligation to Object and to request a mistrial. If the defendant does not want a mistrial, he may waive his objection. The trial may then proceed, but he may not again raise that objection as a point on appeal. If the defendant fails to object or if, after having objected, he does not ask for a Mistrial, his silence will be considered an implied waiver. Cf. Spenkelink v. State, 350 So.2d 85 (Fla.1977), cert. den. 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977). The important consideration is that the defendant retain primary control over the course to be followed in the event of such error. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).

5. When an objection and motion for mistrial are made, the trial court must determine whether there was an improper comment on the defendant's exercise of his right to remain silent. If the court finds that there was not, the objection should be overruled. In that event, the objection is preserved, and if the defendant is convicted, it may be raised as a point on appeal.

6. If the defendant, at the time the improper comment is made, does not move for mistrial, he cannot, after trial, in the event he is convicted, object for the first time on appeal. He will not be allowed to await the outcome of the trial with the expectation...