Smith v. State, 76-1936

• Decision Date: 14 March 1978
• Docket Number: No. 76-1936,76-1936
• Citation: 356 So.2d 380
• Parties: Howard SMITH, Jr., Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 380

356 So.2d 380

Howard SMITH, Jr., Appellant, v. The STATE of Florida, Appellee.

No. 76-1936.

District Court of Appeal of Florida, Third District.

March 14, 1978.

Bennett H. Brummer, Public Defender and Irv J. Lamel and Kurt Marmar, Asst. Public Defenders, for appellant.

Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.

Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

PER CURIAM.

Defendant brings this appeal urging that the trial court erred in allowing into evidence (1) police testimony during the prosecution's direct examination and (2) defendant's testimony during cross-examination of the fact that defendant remained silent during pre-arrest custody.

On April 12, 1976, defendant was informed against for the crime of attempted first degree murder. ¹ Following a plea of not guilty and the waiving of a jury, defendant went to trial on May 11, 1976. The case was recessed until June 23, 1976, at which time defendant was found guilty as charged, with adjudication entered on September 9, 1976. Defendant was sentenced to three years in the state penitentiary as a condition to a sentence of eight years probation.

A prosecution witness, Police Officer Lawrence Cochran, testified that while passing a gas station in his unmarked car, he heard gun shots, got out of his car, saw several people inside the station office door, one of whom was the defendant. Because the defendant had a gun in his hand, Cochran drew his own weapon and ordered defendant to drop his weapon. Then Cochran placed the defendant in custody, instructing another police officer to read defendant his rights. Cochran also testified that no statements were made to him at that time by the defendant or the victim, who was lying on the station office floor bleeding from a gunshot wound. ²

During the defense's case, defendant testified on his own behalf that he had been target practicing earlier on the day of the shooting, that he had the gun in his pocket while talking with the victim in the gas station office, that he did not know the gun was loaded (due to the fact that a friend of his had been target practicing with the gun earlier in the day), and that he drew his gun only when he thought he saw a shiny object when the victim started fumbling in his pocket and on top of the desk in the station office. Defendant also testified that he did not intend to shoot or kill the victim when he entered the station.

During cross-examination, the prosecution questioned defendant about the target practice:

"Q: Did you tell that to the police?

"A: I did not.

"Q: This is the first time you have told anybody that?

"A: Right."

The prosecution also questioned defendant about the fact that he thought the gun was not loaded.

"Q: This is the first time you have told that to anybody?

"A: When I had taken the gun out?

"Q: This is the first time you have told anybody that Warren fired the gun that day?

"A: Right."

During direct examination, the defendant testified that he gave a statement at the police station. Later, during cross-examination, this statement was admitted as State's Exhibit No. 3 and the following question was asked:

"Q: (by the prosecution) When the police first arrived after the shooting, you did not go up to the police officers and tell them that you thought he was going to shoot you, and that is why you shot him? You did not say a word to them, did you?

The defendant presents the following question on appeal:

"Whether the introduction by the prosecution on direct examination of a police officer of testimony that the defendant remained silent while in custody, and on cross-examination of the defendant of testimony that the defendant remained silent while in custody, constituted fundamental error and deprived the defendant of his rights under the Fifth and Fourteenth Amendments to the Constitution of the United States."

We hold that no violation of defendant's constitutional rights appears on this record, and we affirm. Concerning the direct examination of the policeman, it is clear that the question about statements made "immediately after your arrival" refers to the time that the officer entered the scene and does not refer to the defendant's failure to make a statement after he was given his Miranda warnings. In fact, the defendant did make a statement after his Miranda warnings. It was introduced into evidence. It should be noted that the defendant did not object to the question propounded to the officer and it may reasonably be concluded that the...