State v. DiGuilio, No. 65490

• Court: United States State Supreme Court of Florida
• Writing for the Court: SHAW; McDONALD; ADKINS; ADKINS
• Citation: 491 So.2d 1129,11 Fla. L. Weekly 339
• Docket Number: No. 65490
• Decision Date: 17 July 1986
• Parties: 11 Fla. L. Weekly 339 STATE of Florida, Petitioner, v. Angelo John DiGUILIO, Respondent.

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491 So.2d 1129 11 Fla. L. Weekly 339 STATE of Florida, Petitioner,
v.
Angelo John DiGUILIO, Respondent. No. 65490. Supreme Court of Florida. July 17, 1986.

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Jim Smith, Atty. Gen., and Richard B. Martell and Sean Daly, Asst. Attys. Gen., Daytona Beach, for petitioner.

John W. Tanner, Daytona Beach, for respondent.

ON REHEARING GRANTED

SHAW, Justice.

Respondent petitions for rehearing of our decision of August 29, 1985, wherein we held that comments on a defendant's silence were subject to harmless error analysis and remanded the case to the district court for application of the harmless error analysis. We reaffirm our holding but grant rehearing in order to apply harmless error analysis and to more fully explicate the application of harmless error. We substitute this opinion for our earlier opinion.

The following question has been certified as being of great public importance:

Has the Florida Supreme Court, by its agreement in State v. Murray, 443 So.2d 955 (Fla.1984), with the analysis of the supervisory powers of appellate courts as related to the harmless error rule as set forth in United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), receded by implication from the per se rule of reversal explicated in Donovan v. State, 417 So.2d 674 (Fla.1982); Shannon v. State, 335 So.2d 5 (Fla.1976); and Bennett v. State, 316 So.2d 41 (Fla.1975)?

DiGuilio v. State, 451 So.2d 487, 491 (Fla. 5th DCA 1984). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the certified question in the affirmative and apply the harmless error doctrine to a comment on a defendant's remaining silent.

A jury convicted Angelo John DiGuilio of conspiracy to traffic in cocaine. The district court reversed, finding that the prosecutor elicited testimony from a witness which could be interpreted by the jury as a comment on DiGuilio's right to remain silent. Applying Donovan, Shannon, and Bennett, the district court found the comment to be per se grounds for reversal.

The comment in question arose during the prosecution's examination of a police officer to determine whether DiGuilio had been read his Miranda ¹ warnings. The following exchange then took place:

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Q. [Prosecutor] Did he indicate whether or not he would be willing to answer any questions?

A. At that point, he didn't say.

Q. Did Mr. DiGuilio make any statements to you at that time?

A. Only to the effect that the driver of the car picked him up at his home and he had come directly to the Howard Johnson's. That he lived in South Daytona. He refused to give me an address. He refused to identify the name of the driver. He also indicated to me that the driver had parked the car and walked north to the southeast doors to the motel and had entered. After that, he advised me he felt like he should speak to his attorney. And there was no further questioning.

Q. No further questioning?

A. No.

The district court found the statement, "After that, he advised me he felt like he should speak to his attorney," susceptible to the conclusion that it was a comment on the right to remain silent. The fact that DiGuilio answered a few questions first does not constitute a waiver of his fifth amendment privilege. Miranda states that an individual can invoke his right to remain silent "at any time prior to or during questioning." Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627-28, 16 L.Ed.2d 694 (1966); Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Thus, comment on a defendant's invocation of his right to remain silent after he has answered some questions is constitutional error. See Peterson v. State, 405 So.2d 997 (Fla. 3d DCA 1981); Thompson v. State, 386 So.2d 264 (Fla. 3d DCA 1980), review denied, 401 So.2d 1340 (Fla.1981). We agree that the comment here is fairly susceptible of being interpreted by the jury as a comment on silence. State v. Kinchen, 490 So.2d 21 (Fla.1985).

Florida has long followed a per se reversal rule when a prosecutor comments on a defendant's failure to testify. Gordon v. State, 104 So.2d 524 (Fla.1958); Trafficante v. State, 92 So.2d 811 (Fla.1957); Way v. State, 67 So.2d 321 (Fla.1953); Rowe v. State, 87 Fla. 17, 98 So. 613 (1924). Prior to Miranda, however, Florida followed the rule that a defendant's silence, when faced with accusatory statements while in custody, was admissible as evidence tending to show guilt. Albano v. State, 89 So.2d 342 (Fla.1956). The per se reversal rule for comments on the right to remain silent was first adopted in Jones v. State, 200 So.2d 574 (Fla. 3d DCA 1967). This Court adopted Jones and the per se rule in Bennett v. State, 316 So.2d 41 (Fla.1975), and has approved the rule in other cases. E.g., Donovan v. State, 417 So.2d 674 (Fla.1982); Shannon v. State, 335 So.2d 5 (Fla.1976). Because comment on a defendant's failure to testify and comment on a defendant's silence violate the same constitutional provision and are grounded on the same rationale, we reexamine both the Rowe and Jones line of cases to determine if a rule of per se reversal should be followed.

The problem of prosecutorial comment on a defendant's failure to testify is of fairly recent vintage. Under the common law at the time the United States and Florida Constitutions were adopted, an accused not only could not be compelled to testify, but was considered to be incompetent to testify even if he wished to do so. Because of this legal disability, no inference could be drawn from a failure to testify and there could be no occasion for a prosecutor to comment on the failure to testify. Obviously the framers of the constitutions did not contemplate such prosecutorial comments when they authored the constitutional right not to be compelled to testify against oneself. In the late nineteenth century, a move developed to remove the common law disability which prevented an accused from testifying. In 1878, Congress passed an act ² granting the accused a statutory

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right, upon request, to testify in federal courts. The act also provided that failure to make such request would create no presumptions against the accused. The meaning of the "no presumptions" language was tested in Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650 (1893), where the Court held that a prosecutor's comment on an accused's failure to testify violated the statutory provision and reversed the conviction. ³ In 1895, the Florida Legislature enacted chapter 4400, Laws of Florida ⁴ which for the first time not only granted an accused in Florida the right to testify ⁵ but, presumably in light of the Wilson decision, specifically provided that no prosecutor would be permitted to comment before the court or jury on the failure of the accused to testify.

It is from the 1895 legislative act that the Rowe line of cases sprung. In Jackson v. State, 45 Fla. 38, 34 So. 243 (1903), this Court reversed a conviction because of a prosecutor's comment on an accused's failure to testify. In so doing, we grounded the reversal on violation of statute, not the Florida Constitution, and noted that no curative instructions had been given to the jury. Further, and even more significantly, although we held that the particular comment in the case at hand was reversible error, we specifically noted that comments on an accused's failure to testify were not per se reversible error:

There may be some circumstances where reference to the fact may be made in such form as not to constitute reversible error, as in the case of State v. Mosley, 31 Kan. 355, 2 Pac. 782, but the remarks made in this case are not of that character.

Jackson, 45 Fla. at 39, 34 So. at 243 (citations omitted). The holding that such comments were not per se reversible was made more explicit in Steffanos v. State, 80 Fla. 309, 86 So. 204 (1920), where we held:

During the argument of counsel the prosecuting attorney commented upon the failure of the accused to testify in his behalf. Exception was taken to the remarks of counsel by the defendant, and the court corrected the prosecuting attorney, and instructed the jury to disregard the statement; but he did so in such words as to render the correction of little value to the defendant. While we do not hold the transaction, as it appears to have occurred, reversible error, we think that, when prosecuting attorneys do violate the plain language of the statute, their remarks should be expunged so far as possible, and removed from consideration by the jury.

80 Fla. at 315, 86 So. at 206. It is thus clear that a prosecutor's comments on an accused's failure to testify was not per se reversible error as of 1920 when Steffanos was decided. This changed with the Rowe case.

In Rowe, the prosecutor made repeated references to an accused's failure to testify including one where the trial court failed to rebuke the prosecutors and which we characterized as

"an adroit and insinuating attempt, indirectly to accomplish what could not have been accomplished by a direct statement. The statute does not permit such evasions of its manifest purpose."

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Rowe, 87 Fla. at 30, 98 So. at 618, quoting from State v. Moxley, 102 Mo. 374, 14 S.W. 969 (1890). We rejected the state's argument that comments on failure to testify could be cured by an instruction to the jury because "violation by the prosecuting officer of a statute such as ours cannot be cured by the court instructing the jury to disregard his comment." Rowe, 87 Fla. at 29, 98 So. at 617. Accordingly,

For the violations of the statute by the prosecuting officers of the state, as pointed out herein, and for that only, the judgment is reversed, and a new trial granted.

87 Fla. at 32, 98 So. at 618 (emphasis supplied).

In a series of cases in the 1950's, this Court again addressed the question of whether a harmless error statute, section 54.23, Florida Statutes (1951), ⁶ could be applied to a comment on an accused's failure to...