Simpson v. State, 49681

• Decision Date: 08 April 1982
• Docket Number: No. 49681,49681
• Parties: Willie Clayton SIMPSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 984

418 So.2d 984

Willie Clayton SIMPSON, Appellant, v. STATE of Florida, Appellee.

No. 49681.

Supreme Court of Florida.

April 8, 1982.

Rehearing Denied Sept. 15, 1982.

Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender, and Jerry L. Schwarz, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., and Miguel A. Olivella, Asst. Atty. Gen., Tallahassee, for appellee.

ADKINS, Justice.

We have before us a direct appeal from a judgment imposing the death sentence upon Willie Clayton Simpson. Jurisdiction is pursuant to article V, section 3(b)(1), Florida Constitution.

The facts are that officer John Kennedy of the Delray Beach Police Department was shot to death during the early morning hours of August 10, 1974. Appellant was indicted for the murder of officer Kennedy and was found guilty by a jury of first-degree murder on March 10, 1976. The jury subsequently returned an advisory sentence of death. On May 17, 1976, appellant was adjudicated guilty and sentenced to death.

Appellant raises numerous issues on appeal, however, we find one to be dispositive of the entire matter. Appellant argues that it was harmful error for the prosecutor to elicit from him during cross-examination, testimony concerning his failure to testify before the grand jury investigating this crime, and that the prosecutor's reference during closing argument to such failure to testify was equally harmful.

We agree. The position of this Court with respect to the Fifth Amendment right to silence is quite clear. In the case of Jones v. State, 200 So.2d 574 (Fla.3d DCA 1967), the district court quoted from Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as follows "In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation." [Emphasis supplied.]

"No distinction can be drawn between statements which are direct confessions and statements which amount to 'admissions' of part or all of an offense. The privilege against self incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination."

200 So.2d at 576.

We cited Jones in Bennett v. State, 316 So.2d 41 (Fla.1975), and used it as the basis for our decision. In Bennett, the defendant moved for a mistrial because a state witness told the jury that defendant refused to sign a waiver of his Miranda rights. The trial court denied the motion and instructed the jury to disregard the improper testimony. We held this to be reversible error for the reasons discussed in Jones.

In Willinsky v. State, 360 So.2d 760 (Fla.1978), defendant was on trial for the unlawful possession and sale of cocaine. During cross-examination of the defendant the prosecutor made what was an obvious comment on defendant's failure to testify at a preliminary hearing. We said in Willinsky that:

Impeachment by disclosure of the legitimate exercise of the right to silence is a denial of due process. It should not be material at what stage the accused was silent so long as the right to silence is protected at that stage. The language in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), although set in the context of silence at arrest, reflects a general policy. The essence of these holdings is that impeachment by disclosure of the exercise of the right to silence is a denial of due process. The general terms used by the Supreme Court of the United States are not limited to arrest, but apply at any stage where the right to silence is protected.

360 So.2d at 762.

Appellee argues that the issue of the prosecutor's improper comments on defendant's right to remain silent is waived because it was not properly preserved for appellate review. Two bases are given for this argument: 1) Clark v. State, 363 So.2d 331 (Fla.1978), holds that as a matter of law, without a motion for mistrial, appellate review of the instant issue is waived; and 2) appellant did not litigate the precise ground argued herein in support of his objection.

As to the first basis, Justice Alderman made very clear in Clark that we were considering the effect of the defendant's failure to object. This issue was not decided in Bennett or Willinsky, where timely objection had been made to the improper comments. There is no question in the instant case about whether there was a timely objection. The trial record discloses the following exchange:

BY MR. HARPER:

Q And when Jimmy Lee Harold came to court, did you testify in that case?

A No.

MR. STARR: Now we object to this. It's immaterial, irrelevant and--

THE COURT: Overruled.

BY MR. HARPER:

Q Did you refuse to testify in that case?

A Yes, I did.

Q Did you refuse because you wanted immunity?

MR. STARR: We object to this.

* * *

* * *

MR. HARPER: Jimmy Lee Harold was arrested, and he was taken to court, and you heard that testimony. And when this man was called as a witness, he said, "I will not testify against him unless you give me immunity in this case."

MR. STARR: I object to that part of the argument. It's not part of the case.

There's no such testimony in this record that this defendant begged for immunity--asked for immunity. He said he took the Fifth Amendment, which he has every right in the world under the Constitution of both the State and the United States to do. But there was nothing in the record of any immunity that he asked for, and we ask the Court to instruct the jury not to consider that in this argument.

THE COURT: The motion is denied. Proceed.

Under these circumstances, where clearly a timely objection to the improper comment was made by defense counsel, and where the judge unequivocally and without hesitation overruled the objections, the issue of the admission of such testimony and comments before the jury is...