Stone v. State, 88-03431

• Decision Date: 08 September 1989
• Docket Number: No. 88-03431,88-03431
• Citation: 548 So.2d 307,14 Fla. L. Weekly 2125
• Parties: 14 Fla. L. Weekly 2125 David Heston STONE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 307

548 So.2d 307

14 Fla. L. Weekly 2125

David Heston STONE, Appellant, v. STATE of Florida, Appellee.

No. 88-03431.

District Court of Appeal of Florida,

Second District.

Sept. 8, 1989.

Anthony S. Battaglia and Bruce G. Howie of Battaglia, Ross, Hastings and Dicus, P.A., St. Petersburg, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.

RYDER, Judge.

Appellant contests his conviction for conspiracy to traffic in cocaine, raising four points on appeal. Because we find that reversible error was committed with regard to one of the four points, we need not address the others.

During closing argument, the prosecutor made the following comment:

Now what you're going to hear is that a defense for the crime of criminal conspiracy is that David Stone, after conspiring with one or more persons to commit the object of the conspiracy, the object of the conspiracy to bring back the five kilos, intending to bring back the five kilos to undercover officers persuaded others not to do it, to try to prevent a commission of conspiracy, it's a defense to this particular crime. And be careful when you think about the fact whether or not there's a defense in this case. What does David Stone have to do here to have a defense? He's either got to say 'Folks, I was part of a conspiracy but I told Milton not to do it' or 'Folks, I wasn't part of the conspiracy.'

Immediately thereafter, defense counsel requested permission to approach the bench. The trial court denied the request and appellant's attorney, with the jury present, then moved for a mistrial, or curative instruction, on the grounds that the state had improperly commented on appellant's failure to testify. The trial court denied the motion, stating "it will be covered in the instructions." During jury instructions, however, the court failed to include an appropriate instruction. Appellant argues that the trial court committed reversible error in denying his motion for mistrial. We agree.

Any comment which is "fairly susceptible" of being interpreted as a comment on a defendant's silence will be treated as such. State v. DiGuilio, 491 So.2d 1129 (Fla.1986); David v. State, 369 So.2d 943 (Fla.1979). Prosecutorial comment on a defendant's exercise of his right to remain silent is subject to the harmless error doctrine, with the burden falling on the state to convince the reviewing court that the error is harmless beyond a reasonable doubt. DiGuilio; Freeman v. State, 538 So.2d 936 (Fla. 2d DCA 1989); Abreu v. State, 511 So.2d 1111 (Fla. 2d DCA 1987).

The parties offer divergent interpretations of the prosecutor's comment and its effect on this appeal. Appellant contends that the words "He's either got to say ..." are fairly susceptible of being interpreted as a comment on his failure to testify. According to appellant, the prosecutor's comment constitutes harmful error because the evidence against appellant during the trial was largely circumstantial and unreliable and the jury may have inferred that appellant's failure to testify was indicative of guilt. In addition, appellant argues that the trial court's refusal to allow appellant's counsel to make his motion for mistrial at the bench and its denial of the motion within the hearing of the jury raises the possibility that the jury could infer that the court...