Rowell v. State

• Decision Date: 24 May 1984
• Docket Number: No. 83-452,83-452
• Citation: Rowell v. State, 450 So.2d 1226 (Fla. App. 1984)
• Parties: Alonza ROWELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1226

450 So.2d 1226

Alonza ROWELL, Appellant, v.STATE of Florida, Appellee.

No. 83-452.

District Court of Appeal of Florida Fifth District.

May 24, 1984.

James B. Gibson, Public Defender, James R. Wulchak, Chief, Appellate Div., Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.

COBB, Judge.

The appellant, Alonza Rowell, was convicted on two counts of burglary of a conveyance, one count of possession of burglary tools and one count of petit theft.The charges stemmed from the burglary of two cars in a shopping mall on the same day.

During the course of the jury trial, the prosecutor queried the arresting officer as to whether he ever attempted to take a statement from the defendant after arrest, and the answer was: "Ah, I never asked him that.I never ... I asked him, but he refused to give me any information as far as...."

At that point, counsel for the defense intervened with a timely objection and motion for mistrial.SeeState v. Cumbie, 380 So.2d 1031(Fla.1980);Castor v. State, 365 So.2d 701(Fla.1978);Clark v. State, 363 So.2d 331(Fla.1978).We find that this exchange is "fairly susceptible" to interpretation by the jury as a reference to the defendant's exercise of his right to remain silent.SeeSnowden v. State, 449 So.2d 332(Fla. 5th DCA1984).

The appellant relies upon Bennett v. State, 316 So.2d 41(Fla.1975), andFord v. State, 431 So.2d 349(Fla. 5th DCA1983), for the proposition that any comment on the exercise by the accused of his right to remain silent at time of arrest is reversible error without regard to the harmless error doctrine.In regard to this point, we also note Donovan v. State, 417 So.2d 674(Fla.1982), andDiguilio v. State, 451 So.2d 487(Fla. 5th DCA1984).

The state argues that even if there was a violation of the law regarding comment, it was harmless error because of the overwhelming proof of guilt.The state contends that the harmless error doctrine, rather than the per se reversal rule, should apply based on the recent United States Supreme Courtcase of U.S. v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96(1983).The state urges that the Florida Supreme Court has adopted the rationale of Hasting by its recent opinion in State v. Murray, 443 So.2d 955(Fla.1984) and, therefore, by implication, has receded from the automatic reversal rule espoused in Bennett and Donovan.

In Hasting, the United States Supreme Court affirmatively rejected a per se reversal rule, citing to its prior decision in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705(1967), wherein it had declared that even constitutional errors could be deemed harmless in the setting of a particular case.The Court of Appeals had summarily reversed trial convictions in Hasting, declining to rely on the harmless error doctrine on the basis that to do so "would impermissibly compromise the clear constitutional violation of the defendants' Fifth Amendment rights."The Supreme Court, in reversing the Court of Appeals, held that the harmless error rule of Chapman may not be avoided by an assertion of supervisory power simply to justify reversal of criminal convictions.The court stated, "[t]he interests preserved by the doctrine of harmless error cannot be so lightly and casually ignored in order to chastise what the court viewed as prosecutorial overreaching."103 S.Ct. at 1979.

The Supreme Court then proceeded to review the record in the Hasting case and concluded that it was clear beyond a reasonable doubt that the jury would have returned a verdict of guilty even in the absence of the improper comment by the prosecutor.We reach the same factual conclusion in the instant case.

Subsequent to the Hasting decision, the Florida Supreme Court in Murray reviewed the harmless error doctrine in the context of prosecutorial overzealousness in closing argument where an intemperate attack was made on the credibility of a defendant who had testified during trial.In Justice Shaw's majority opinion it is stated:

When there is overzealousness or misconduct on the part of either the prosecutor or defense lawyer, it is proper for either trial or appellate courts to exercise their supervisory powers by registering their disapproval, or, in appropriate cases, referring the matter to The Florida Bar for disciplinary investigation.Arango v. State, 437 So.2d 1099(Fla.1983);Spenkelink v. Wainwright, 372 So.2d 927(Fla.1979)(Alderman, J., concurring specially);Jackson v. State, 421 So.2d 15(Fla. 3d DCA1982).Nevertheless, prosecutorial error alone does not warrant automatic reversal of a conviction unless the errors involved are so basic to a fair trial that they can never be treated as harmless.The correct standard of appellate review is whether "the error committed was so prejudicial as to vitiate the entire trial."Cobb [v. State ], 376 So.2d at 232.The appropriate test for whether the error is prejudicial is the "harmless error"rule set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705(1967), and its progeny.We agree with the recent analysis of the Court in United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96(1983).The supervisory power of the appellate court to reverse a conviction is inappropriate as a remedy when the error is harmless; prosecutorial misconduct or indifference to judicial admonitions is the proper subject of bar disciplinary action.Reversal of the conviction is a separate matter; it is the duty of appellate courts to consider the record as a whole and to ignore harmless error, including most constitutional violations.

443 So.2d at 956.

Murray did not concern a prosecutorial comment on a defendant's exercise of his right to remain silent.Therefore, its expressed approval of the analysis by the Supreme Court in Hasting is not necessarily a retreat from the per se rule of Bennett and Donovan.Despite our agreement with the logic of Hasting and our reservations in regard to the justice of a per se rule, we are bound at this point in time to adhere to Bennett and Donovan.SeeHoffman v. Jones, 280 So.2d 431(Fla.1973).This conclusion is buttressed by the fact that in the recent case of State v. Strasser, 445 So.2d 322(Fla.1984), released a month after the opinion issued in Murray, the Florida Supreme Court relied on its prior decision in ...