Singleton v. State

• Decision Date: 04 February 1966
• Docket Number: No. 6154,6154
• Citation: 183 So.2d 245
• Parties: Grace Marie SINGLETON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 245

183 So.2d 245

Grace Marie SINGLETON, Appellant, v. STATE of Florida, Appellee.

No. 6154.

District Court of Appeal of Florida, Second District.

Feb. 4, 1966.

Rehearing Denied March 2, 1966.

James W. Moore, Naples, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Robert G. Stokes, Asst. Atty. Gen., Lakeland, for appellee.

PIERCE, Judge.

Information was filed in the Collier County Circuit Court charging Grace Marie Singleton, appellant (defendant) herein, with the offense of grand larceny, the property allegedly stolen being one D. B. David Bradley chain saw owned by Leon N. Whilden, Jr. The information was filed on September 26, 1961, alleging the crime to have been committed on September 8, 1961, but defendant was not arraigned until April 22, 1963. The record filed here does not enlighten us as to the reason for the delay.

On said April 22, 1963, Order was entered by the Circuit Judge consolidating the case against defendant with a similar case against her husband, Malcolm Ray Singleton. ¹

Defendant and her husband were tried jointly, resulting in a jury verdict of guilty as to each of them. Motion for new trial being denied, defendant was adjudged guilty by the Court, imposition of sentence was suspended, and she was placed on probation. ² From such order granting probation, defendant has appealed to this Court. ³

Numerous grounds are urged in this Court for reversal, but we deem only one of sufficiently serious import to warrant detailed discussion here, namely, the propriety of the State Attorney, in his closing argument to the jury, alluding to the failure of the defendant to testify in her own behalf. And before that question can be reached, we must first determine whether or not the language allegedly used by the State Attorney is sufficiently authenticated to this Court by the Transcript of Record to permit consideration on the merits. For the reasons hereinafter stated, however, we conclude, first, that the state of the record does permit consideration of the main question here, and secondly, such remarks did constitute prejudicial error to a reversal.

The record reflects that argument of respective counsel to the jury was not taken down or reported in haec verba by the Court Reporter and was therefore not certified by the reporter nor otherwise included as a part of the original record. ⁴

The jury returned its verdict against defendant on April 22, 1963, and on May 1, 1963, Motion for New Trial was filed in her behalf which, among other things, contained the following ground:

'(2) That the Assistant States Attorney, in his closing statement to the jury was guilty of misconduct by commenting upon the failure of Defendant to testify or attempt to refute the testimony of the State's witnesses, by stating in effect that the state had proved its case by two impartial witnesses and then stating 'And I call your attention to the manner in which the Defendants have testified in refuting their' (the State's witnesses) testimony, 'where Defendant Malcolm Ray Singleton on direct examination testified only as to two questions viz, whether he was married to Grace Marie Singleton and in what county he was at the time the States witnesses forced him to stop, and on one question on cross-examination, whether he had been convicted of a felony, and Defendant Grace Marie Singleton did not testify at all.''

On June 27, 1963, there was filed on behalf of defendant, Grace Marie Singleton, an 'Affidavit in Support of Motion for New Trial,' which was signed and verified under oath by defendant's counsel on the same day, and is as follows:

'STATE OF FLORIDA

COLLIER COUNTY}

'I HEREBY CERTIFY, That on this day personally appeared before me, the undersigned authority, JAMES W. MOORE, who, being by me first duly sworn, says on oath:

'1. That affiant was the attorney for the Defendants, Malcolm Ray Singleton and Grace Marie Singleton, in the criminal cases numbered respectively No. 793 and 794, in the above Court, which cases were consolidated for trial purposes and tried on April 22, 1963; that affiant was present at said trial, heard and made notes upon certain remarks made by the Prosecuting Attorney in his closing statement to the jury, and made oral Motion for Mistrial in which Motion was quoted the words objected to; that said closing argument was not recorded by the Court Reporter and this affidavit is therefore made in support of the Motions for New Trial filed in each of said cases.

'2. That the Defendant, Grace Marie Singleton did not testify at said trial, but called Malcolm Ray Singleton as a witness, specifying that he was called as a witness in her case; and Defendant, Malcolm Ray Singleton did not testify on his behalf in the case against him; that as witness in Grace Marie Singleton's case, Malcolm Ray Singleton answered two questions on direct examination and one question on cross-examination.

'3. That in his closing statement to the jury, the Prosecuting Attorney, after stating to the effect that the State of Florida had proved its case by two witnesses, who testified fully upon the facts which the State contended proved the States charges, then stated:

"And I call your attention to the manner in which the Defendants have testified in refuting their' (the State's witnesses) 'testimony'.'

The record shows that the Motion for New Trial was denied on July 15, 1963. Defendant was not adjudged guilty and placed on probation until January 7, 1965. But, ninety days thereafter, on April 7, 1965, she filed her Notice of Appeal from said judgment to this Court. The Assignments of Error thereafter filed contained the following three numbered grounds, all referring to comment upon her failure to testify:

'4. That the Assistant States Attorney, in his closing statement to the jury, commented upon the failure of Defendant, who did not testify, to testify in the case.

'5. That the Court erred in denying Defendant's Motion for Mistrial, which motion was grounded upon the comments made by the Assistant States Attorney about Defendant's failure to testify.

'6. That the Court erred in refusing to instruct the jury to disregard the Statements of the States Attorney pertaining to Defendant's failure to Testify.'

It is doubtful whether, if the foregoing constituted the entire record evidence of the alleged comment to the jury, it would have been sufficiently authenticated to this Court to permit consideration of the question here. Ordinarily, where objectionable comments to the jury are evidenced only as a part of a Motion for New Trial, any question as to the propriety of such remarks may not be considered on appeal.

In Ailer v. State, Fla.App.1959, 114 So.2d 348, a case involving conviction for abortion, the Prosecuting Attorney in his argument to the jury 'stated, in effect, that the accused had been committing abortions for years.' The argument of counsel was not stenographically reported and this Court in its opinion stated (text 114 So.2d 351):

'The state asserts that the remark by the prosecuting attorney during closing argument, since it does not affirmatively appear in the record, cannot be considered and that its appearance in a motion for new trial does not suffice. We agree that where allegedly improper argument of a prosecuting attorney to a jury does not appear in the record, a motion for new trial averring the alleged improper remark is not self-proving and cannot activate such remark as a basis for error on appeal.'

The objectionable comment in Ailer, however, was considered upon its merits by this Court because the factual making of the comment had been given certitude and vitality by the trial Judge in a five-page Order denying the Motion for New Trial.

In Brooks v. State, Fla.1953, 64 So.2d 914, the Supreme Court said:

'Appellant's contention on the second question is that the state attorney improperly in his closing argument referred to the appellant's past criminal record. The argument of the state attorney does not appear in the record, except for what is shown in the motion for new trial, but such motion is not self proving. The court is unable therefore to review the question.'

To the same effect see Houghton v. State, Fla.App.1961, 133 So.2d 111; Hulst v. State, 123 Fla. 315, 166 So. 828; Holloman v. State, 140 Fla. 59, 191 So. 36; and Norris v. State, 150 Fla. 686, 8 So.2d 493. These cases involve attempts to raise the impropriety of alleged prejudicial remarks only by their bare and unsubstantiated inclusion in a Motion for New Trial.

As to whether such comments may be considered when attested by affidavits or sworn evidence in support of such a motion, the law is unsettled in this State. In Burns v. State, 150 Fla. 869, 9 So.2d 106, the Supreme Court, touching upon this question, said:

'Another ground of the motion for a new trial is the alleged misconduct of the Assistant State Attorney during the progress of the trial of the case and while addressing the jury in behalf of the State of Florida, when the said prosecuting officer stated to the jury that it was his belief that the defendants were each guilty of the said offense as charged in the information. It is contended that the argument of the Assistant State Attorney was harmful, prejudicial and an invasion of the constitutional rights of the appellants. The record certified to this court shows a motion for new trial, but the motion appears not to have been sworn to neither were affidavits offered in support of the facts made a part thereof, nor was testimony adduced in the lower court by the movant for the purpose of establishing the matter in pais.

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'The bare and unsupported motion for a new trial not accompanied by any affidavits or evidence in support thereof precludes this court from considering the merits of the contention here presented.' (Emphasis supplied).

In Turner v. State, 99 Fla. 246, 126 So. 158, the second headnote reads:

'The avernment in a motion for new trial,...