Paulen v. State, 76-1938
| Decision Date | 22 November 1977 |
| Docket Number | No. 76-1938,76-1938 |
| Parties | Robert Earl PAULEN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, Frank B. Kessler and Jerry L. Schwarz, Asst. Public Defenders, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
A manslaughter conviction is appealed. We reverse.
Appellant is accused of having killed a person by driving his automobile into her while he was under the influence of intoxicating liquor. At trial a policeman was asked ". . . when you advised him of his Miranda warnings, did he make any statements to you?" Policeman: "As I recall, at that time he didn't." It came out that Appellant later voluntarily made statements in regard to the accident and his activities before the accident.
In Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976), it was held that it is improper to allow testimony concerning an accused's silence after Miranda warnings. It is fundamental, constitutional error incapable of being rendered harmless by later events. See also Williams v. State, 335 So.2d 854 (Fla. 4th DCA 1976); especially Judge Downey's special concurrence which indicates the facts there are quite on point. Appellant must be afforded a new trial.
REVERSED and REMANDED.
In my opinion no error was committed. The officer's testimony, when considered in context, cannot reasonably be interpreted as a comment on the defendant's right to remain silent.
The prosecutor by his questioning established that the defendant had been given his Miranda warnings:
Q And at that point in time when he became a suspect, you did advise him of his Miranda warnings?
A Yes, sir. I did.
Q And at that time what did he tell you?
Defense counsel then interjected:
Your Honor, I don't know what point in time that was. This witness hasn't yet testified to when he told him this.
The prosecutor established that Miranda warnings were given shortly after the officer arrived at the scene of the crime. He then proceeded:
Q Okay. And when you advised him of his Miranda warnings, did he make any statements to you?
A As I recall, at that time he didn't. I filled out a sheet later which I asked questions and he answered them at that time.
Certainly a police officer should be able to establish by his testimony when he gave Miranda warnings to a defendant. Likewise, if a defendant makes any statements, the officer should be allowed to testify when the statements were made particularly if, as in the present case, it is defense counsel who insists that the officer tell when the defendant's statements were made. I do not believe that it is a comment on a defendant's right to remain silent, for an officer to say that the defendant had been given his Miranda warnings at the scene of the crime and that at a later time he made a statement to the officer. If such were the case it would be impossible to say when a defendant made any statements because it could be implied that he said nothing before that time. This is absurd; but the court in effect reaches the same result in this case by reversing defendant's conviction based...
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M. E. G., In Interest of, 76-2399
...advised of his Miranda rights. 1 Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975); Paulen v. State, 352 So.2d 1205 (Fla. 4th DCA 1977), opinion issued November 22, 1977; Williams v. State, 335 So.2d 854 (Fla. 4th DCA 1976); Martin v. State, 334 So.2d 841 (......
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Blakley v. State, 77-2076
...warning is error. Bennett v. State, 316 So.2d 41 (Fla.1975). It is fundamental error, not requiring an objection. Paulen v. State, 352 So.2d 1205 (Fla. 4th DCA 1977). However, like in Greenfield, supra, there is a twist to this case. In essence the defendant's refusal was introduced for the......
- State v. Paulen