Rodriguez v. State, 85-1957
| Citation | 494 So.2d 496,11 Fla. L. Weekly 1286 |
| Decision Date | 04 June 1986 |
| Docket Number | No. 85-1957,85-1957 |
| Parties | 11 Fla. L. Weekly 1286 Jorge Alberto RODRIGUEZ, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Richard L. Jorandby, Public Defender, and Paul E. Petillo, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
This is a timely appeal from a judgment of conviction and sentence of fifteen years' imprisonment for the offense of trafficking in cocaine in violation of section 893.135(1)(b), Florida Statutes (1985). Appellant contends that the trial court erred in (1) denying his motion to suppress, and (2) denying his motion for mistrial after the state elicited and made comments on appellant's post-arrest and post-Miranda silence.
Appellant, Rodriguez, was seated in a Trailway bus parked in the Fort Lauderdale bus station where he was approached by two uniformed Broward County Sheriff's deputies (Nutt and Rubino). They introduced themselves and asked Rodriguez if he was willing to answer some questions. After some preliminary questioning, the officers testified Rodriguez consented to a search of his tote bag situated in the overhead rack. Therein, Deputy Nutt found a kilogram of cocaine. Rodriguez' motion to suppress the cocaine was denied.
At trial, during recross-examination of Deputy Nutt, defense counsel asked the following question:
On the basis of this questioning, the state moved in limine to question Nutt about appellant's post-arrest and post-Miranda reactions. The trial court allowed this questioning on the ground that the defense raised the issue during the above recross-examination of Nutt. The defense objected and moved for a mistrial, which was denied.
On the basis of the court's in limine ruling the state elicited the following testimony from Nutt, Rubino and Rodriguez:
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During closing argument the state capitalized on the foregoing comments about Rodriguez' silence after arrest and argued:
He made it [the defense theory that someone must have put the cocaine in his bag] up in court for you. Did he tell that to the police officers? No, he didn't. Think about this in the light of common sense. Is Mr. Rodriguez the innocent man sitting on a bus and the police officers search his bag and they pull out of his bag in front of him a kilogram of cocaine and they say to him, "Mr. Rodriguez, you are under arrest for this cocaine", and what does Mr. Rodriguez, the innocent man do or say? Nothing, not a thing. Not a thing. Well, Mr. Rodriguez may not speak much English, but he knows how to say, He could have registered some surprise on his face, some reaction. There was none. He said absolutely nothing. Can you imagine an innocent man who is surprised by this cocaine and placed under arrest and taken to the station, he doesn't say a word? Can you imagine that? Is that...
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