Smith v. State

• Decision Date: 23 October 1996
• Docket Number: No. 95-3951,95-3951
• Citation: 681 So.2d 894
• Parties: 21 Fla. L. Weekly D2290 George SMITH, Appellant, v. STATE of Florida, Appellee. Fourth District
• Court: Florida District Court of Appeals

Page 894

681 So.2d 894

21 Fla. L. Weekly D2290

George SMITH, Appellant, v. STATE of Florida, Appellee.

No. 95-3951.

District Court of Appeal of Florida,

Fourth District.

Oct. 23, 1996.

Richard L. Jorandby, Public Defender, and Cherry Grant, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

SHAHOOD, Judge.

Appellant, George Smith, was arrested and convicted for driving under the influence of an alcoholic beverage to the extent his normal faculties were impaired. Appellant raises two points on appeal. He initially argues that the trial court erred in overruling his objection to a portion of appellee's sole witness' testimony and in denying his motion for mistrial as to that same testimony. Appellant further contends that the trial court erred in denying his motion for judgment of acquittal because his conviction was based on circumstantial evidence. We find appellant's second point to be without merit and affirm without further comment. We do, however find appellant's first issue to be meritorious and reverse and remand for a new trial.

Appellant was pulled over by a Florida Highway patrolman after he was observed driving a Lexus in excess of 100 miles per hour in wet road conditions. Upon effecting a traffic stop, the trooper observed appellant stagger from his vehicle; his face was flush and his eyes bloodshot, blurry and watery. Upon speaking with appellant, the trooper detected a strong odor of alcoholic beverage on appellant's breath and a slurring of his speech. Appellant declined to perform roadside sobriety tests stating: "I'm not going to incriminate myself. Just take me to jail." Appellant was placed under arrest and taken to a breath testing facility. While at the facility, appellant refused to take a breath test or perform sobriety tests.

At trial, the state's sole witness, the arresting trooper, testified to the following after appellant was placed on videotape at the breath testing facility:

Q. What, if anything, did the defendant [appellant] do during the videotaping?

A. He turned his back on the video except for a few seconds and he refused after I read the implied consent, he refused to take the breath test that I requested and he was read his Miranda warnings and he refused.

After the answer given by the trooper, the following sidebar took place:

[Defense]: Judge, I would move for a mistrial. He made a comment on his fundamental right to remain silent.

The Court: He did not. He just said [he] was read his Miranda rights. He didn't say he refused to say anything.

[Defense]: He said he refused and then Dave [prosecutor] cut him off. We can have it read back. You can have it read back, but Dave stopped him.

...

The Court: Didn't complete his sentence.

[Defense]: Well, Judge, I think anything that can be taken in the case law can be taken--comment about the defendant's right to remain silent is mistriable and that's a comment. I mean, he said he refused after Miranda.

The Court: I find it cannot be taken as a comment. It's denied.

In general, courts must prohibit all evidence or argument that is fairly susceptible of being interpreted by the jury as a comment on the right of silence. State v. Smith, 573 So.2d 306, 317 (Fla.1990). It is improper to comment on a defendant's post-arrest silence, whether or not such silence was induced by Miranda warnings. Fundora v. State, 634 So.2d 255 (Fla. 3d DCA 1994). Comments on a defendant's right to silence are not harmless where the evidence against the defendant is not "clearly conclusive." Id. As a result, such comments are subject to a harmless error analysis. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). In order to satisfy the harmless error test, the state has the burden of proving beyond a reasonable doubt that there was no reasonable possibility that the error complained of contributed to appellant's conviction. Thompson v. State, 503 So.2d 1354, 1356 (Fla. 2d DCA 1987)(citing State v. DiGuilio, 491 So.2d 1129 (Fla.1986)).

In the initial portion of the trooper's statement, the trooper first testified that appellant refused to take a breath test after being read the implied consent law. Such evidence was properly admissible. See State v. Burns, ...