Porter v. State

Decision Date07 March 1978
Docket NumberNo. 76-2040,76-2040
Citation356 So.2d 1268
PartiesDonald PORTER, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Mark King Leban and Joe N. Unger, Miami, for appellant.

Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.



The controlling question presented on this appeal appears to be whether reversible error occurs where the State elicits testimony from the arresting officer that the defendant, while in custody and being advised of his Miranda rights, stated that he wished to have an attorney present and made no statement and where defendant's trial counsel did not object at the time of the testimony. The question arises as follows:

The defendant, Donald Alexander Porter, appeals from a criminal conviction for aggravated battery in the Circuit Court of the Eleventh Judicial Circuit and contends that it was fundamental error for the trial court to fail to grant a mistrial after evidence was admitted that the defendant asked for a lawyer after being given his Miranda rights and made no statement. We agree and reverse.

The defendant was charged by information with aggravated battery before the Circuit Court for the Eleventh Judicial Circuit of Florida. Following a plea of not guilty, the case proceeded to a trial by jury.

At trial, it was undisputed that the defendant shot his son with a gun at the defendant's house. The only witnesses to the shooting were the defendant and his son, and both gave diametrically opposite accounts of the shooting. As a result, the evidence in the record is in considerable dispute concerning whether the shooting was in self-defense or was legally unjustified.

On direct examination of the arresting officer, the prosecuting attorney elicited the following testimony:

"Q: Did you have an occasion to give the defendant any rights?

A: Yes, I did, but not at the scene of the residence. He was transported back to my station where he was advised of his Miranda rights, by card, in the presence of Sergeant Briggs.

Q: By this officer you advised him?

A: Yes, I did.

Q: Prior to this had the defendant made any statements?

A: Made a statement?

Q: After you gave him his rights, at the station, did he have an occasion to make any statement?

A: After reading the defendant his rights I asked if he would like to make a statement and he merely

MR. DAVIS: Objection; no predicate.

THE COURT: Sustained at this time.

MS. SIMMS: All right.


Q: Just answer yes or no: Did he made a statement to you, one way or the other?

A: Yes, he did.

Q: Did the defendant understand, or indicate to you, that he understood, the rights as you read them?

A: Yes, he did.

Q: Did he indicate a desire to have an attorney with him at that time?

A: Yes, he did. " (Emphasis added)

The jury found the defendant guilty as charged, and the trial court, after an adjudication of guilt, sentenced the defendant to three years in the state penitentiary followed by seven years probation. The defendant assigns as error the failure of the trial court to declare a mistrial based upon the admission of the 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, we held:

"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."

See also Bostic v. State, 332 So.2d 349 (Fla. 4th DCA 1976). 1

The State argues that we should depart from the rationale of the Martin decision in view of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). We hold that this opinion has not changed the law in the State of Florida as enunciated by the Supreme Court of Florida. If a more liberal view of the situation, where a defendant's constitutional rights are abridged but no objection is made, is to be taken in the State of Florida, we believe that such view must be taken by the Supreme Court of Florida. We, therefore, find reversible error under appellant's first point.

In the interests of justice, we must proceed with appellant's second point which, if valid, would preclude a retrial. Appellant contends that the trial court erred in denying his motion for discharge under the speedy trial rule. Our review of the record demonstrates that error is not presented on this record. See State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla.1974); State v. Nelson, 320 So.2d 835 (Fla. 2d DCA 1975).

Accordingly, defendant's conviction and sentence are reversed and the cause is remanded to the trial court for a new trial.

Reversed and remanded.

NATHAN, Judge, concurring.

The first question to be decided is whether the prosecutor's question, "Did he indicate a desire to have an attorney with him at that time?" and the answer, "Yes," referred to the defendant's sixth amendment right to counsel, his fifth amendment right to remain silent, or both.

I am of the opinion that they referred to both in this case, for where the facts show that defendant made no statement thereafter, the question had no probative value. Its sole effect was as a comment on the right to remain silent.

This leads to the second question to be decided: Was this error such that no objection was necessary in order to preserve the right to appellate review; in other words, was it fundamental error? While fundamental error need not exist every time a comment is made on the right to remain silent, see e.g., Clark v. State, 336 So.2d 468 (2d DCA 1976), on the facts before us, the effect of the question and answer was of such magnitude as to be fundamental. Except for defendant and his son, no one else was present at the time of the shooting. The jurors had to weigh the conflicting testimony of these men, and the effect of the prosecutor's question was to prejudice defendant's interest so significantly as to call into question his right to a fair trial. Therefore, reversal is required. Royal v. State, 347 So.2d 742 (Fla. 4th DCA 1977).

HUBBART, Judge (dissenting).

I respectfully dissent. In my judgment, the error complained of concerning the admissibility of the defendant's post-arrest silence coupled with his express assertion of the right to counsel was not properly preserved for appellate review and the admission of such evidence was not fundamental error. Moreover, I agree with the court that the defendant's speedy trial claim has no merit. Accordingly, I would affirm the conviction herein.


It has long been the established law of this state that the admissibility of evidence received without objection in the trial court cannot be reviewed on appeal absent an error of fundamental dimensions. The same rule applies when the evidence is objected to at trial on grounds which are abandoned on appeal. Ashford v. State, 274 So.2d 517 (Fla.1973); Jalbert v. State, 95 So.2d 589, 591 (Fla.1957); Walker v. State, 152 Fla. 455, 13 So.2d 4 (1943); Sims v. State, 59 Fla. 38, 52 So. 198 (1910); Ferrell v. State, 45 Fla. 26, 34 So. 220 (1903); Jones v. State, 35 Fla. 289, 17 So. 284 (1895); Koran v. State, 213 So.2d 735 (Fla. 3d DCA 1968); Shea v. State, 167 So.2d 767 (Fla. 3d DCA 1964).

A fundamental error goes to the foundation of the case or the merits of the cause of action and may be noticed by the appellate court although proper objection thereto was not made in the trial court. It is a doctrine which is guardedly and sparingly invoked and only in rare cases where (1) a jurisdictional error appears or (2) the interests of justice present a compelling demand for its application. Ashford v. State, 274 So.2d 517 (Fla.1973); Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970); Custer v. State, 159 Fla. 574, 34 So.2d 100 (1947); Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976); Haley v. State, 315 So.2d 525 (Fla. 2d DCA 1975); Gibson v. State, 194 So.2d 19 (Fla. 2d DCA 1967); Fla.App. Rules 3.7(i), 6.16.

Sound policy reasons exist for these principles of appellate review. Requiring timely and proper objections to the admissibility of evidence ensures that a trial court will have the opportunity to avoid or correct alleged trial errors when they occur which in turn advances the orderly administration of justice. With the evidentiary issue properly presented below, the trial court is more likely to reach a satisfactory result and thus obviate the need for appellate review thereon. And even where an appeal ensues, the need for unnecessary retrials is considerably reduced. Dilliplaine v. Lehigh Valley Trust Co., 475 Pa. 255, 322 A.2d 114 (1974).

Moreover, it is not wise to require a trial judge to assume the role of advocate by noticing and correcting alleged trial errors not complained of or properly brought to his attention. This runs contrary to the place of the trial judge in our system of justice and is on...

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