Royal v. State, 76-588
| Decision Date | 17 June 1977 |
| Docket Number | No. 76-588,76-588 |
| Citation | 347 So.2d 742 |
| Parties | Richmond E. ROYAL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Louis V. Cianfrogna, Titusville, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
This is an appeal from a conviction for second degree murder. We reverse.
During direct examination before the jury, counsel for the State engaged in the following dialogue with the arresting officer, without objection:
Q. How did you advise the Defendant of his constitutional rights?
A. I advised him that prior to making any statement or answering any questions, either oral or written, that he had a right to be represented by a legal counsel. If he was unable to afford an attorney, the State of Florida would furnish him with an attorney, without any cost to him.
Anything that he said, any statement, either oral or written, must be free and voluntary, without threat of punishment or promise of reward. Anything that he did say could and would be used against him in a court of law.
I asked him if he understood, and if he wanted to talk to an attorney before he talked to me.
Q. What was his response?
A. His response was that, "I had a reason for doing what I did, BUT I WANT TO DISCUSS IT WITH AN ATTORNEY FIRST." (Emphasis supplied).
We are somewhat reluctantly of the opinion that the ten words emphasized above constituted a use by the prosecution, at trial, of the fact that the defendant had claimed his Fifth Amendment privilege in the face of an accusation. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694 (1966).
The case now before us is analogous to our own recent decision in Carter v. State, 335 So.2d 875 (Fla. 4th DCA 1976). In Carter, the defendant was asked why he was hiding near the scene of a robbery, to which question he replied by saying that he had a good reason for being there BUT PREFERRED NOT TO DISCUSS IT WITH THE POLICE. This dialogue was reported to the jury by the arresting officer, without objection, but we held it fundamental error, nonetheless. Jones v. State, 200 So.2d 574 (Fla. 3rd DCA 1967). We do not see sufficient distinction between the facts in Carter and the case now before us, to justify a contrary conclusion in this cause.
The State cites an exhaustive and well written opinion by Judge Grimes in Clark v. State, 336 So.2d 468 (Fla. 2nd DCA 1976), wherein the policeman testified before the jury, without objection, as follows:
HE REFUSED TO MAKE ANY STATEMENTS TO ME, SIR, other than he knew nothing about the incident that had occurred at the tavern. " (Emphasis supplied).
Pursuant to that reported conversation, the court, in Clark, held that the reference to the defendant's refusal to make a statement was "clearly improper;" however, the court concluded that it was not fundamental error and was therefore waived by the failure to object. The holding in Clark is persuasive to us, but it would appear there is an important distinction, namely in Clark, the court noted that as soon as the admittedly tainted evidence came in, the prosecutor abandoned the dialogue and made no reference to it during final argument. By contrast, in the case sub judice, the prosecutor recalled the defendant's statement to the arresting officer by arguing to the jury that:
In New Orleans, when he is arrested there and taken into custody by Agent Schmader, what was his only statement there, and that was after Agent Schmader informed him of his rights. After he knew he was charged with the murder of George Bragg. His only statement was, (Emphasis supplied).
While a portion of the defendant's statement might be held to be voluntary after a full reading of his Miranda rights,...
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Porter v. State
...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 I respectfully dissent. In my judgment, the error complained of concerning the admissibility of the defendant's po......
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Clark v. State
...86 S.Ct. 1602 (emphasis added; citations omitted); see United States v. Szymaniak, 934 F.2d 434, 439 (2d Cir.1991); Royal v. State, 347 So.2d 742, 743-44 (Fla. 4th DCA 1977); Carter v. State, 335 So.2d 875, 875-76 (Fla. 4th DCA 1976); see also Jones v. State, 200 So.2d 574-576 (Fla. 3d DCA ......
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Flynn v. State
...A possible oblique reference to a prior invocation of the privilege to refuse to vocally incriminate oneself. Royal v. State, 347 So.2d 742 (Fla. 4th DCA 1977). Prosecutors cannot do this and courts cannot allow it to be The next point involves various alleged improper conduct by the prosec......
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Davis v. State
...See Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976); Wythers v. State, 348 So.2d 390 (Fla. 3d DCA 1977). See also Royal v. State, 347 So.2d 742 (Fla. 4th DCA 1977). After carefully reviewing the record, including the numerous inculpatory statements made by appellant after he was given the ......