Suarez v. State, 2216
| Decision Date | 17 January 1962 |
| Docket Number | No. 2216,2216 |
| Citation | 136 So.2d 367 |
| Parties | Oscar SUAREZ, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Paul Antinori, Jr., of Fowler, White, Gillen, Humkey & Trenam, Tampa, for appellant.
Richard W. Ervin, Atty. Gen., and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.
Appellant Oscar Suarez was convicted in the Criminal Court of Record of Hillsborough County on an information charging breaking and entering an automobile and grand larceny of articles of personalty. Assigned as error are the actions of the trial court in (1) denying defendant's motion for mistrial after statements by the prosecutor were objected to as commenting upon the defendant's failure to take the stand in his own behalf, and (2) receiving in evidence, on the issue of value, certain statements by the complaining witness concerning the cost of articles allegedly taken by the defendant.
Oscar Suarez, after leaving work in the late afternoon of May 6, 1960, indulged in a drinking spree during which he visited several bars and imbibed three or four beers and consumed eight to ten drinks of Scotch whiskey. He was discovered near midnight between two automobiles parked outside the Pelican Bar in Hillsborough County. His head was inside one of the automobiles which contained some photographic equipment and various articles of feminine clothing which had been removed from the adjacent automobile. He was apprehended by occupants of the bar, one of whom owned the automobile from which the articles had been removed. He was charged with breaking and entering the automobile of the complaining witness, Charlaine Libby, and grand larceny of articles of a value in excess of $100.00. Consequent upon jury trial he was found and adjudged guilty as charged in both counts.
During the trial there was admitted in evidence a transcript of pre-trial questions by an assistant prosecutor and answers by the defendant. This transcript was read to the jury at the trial and, in the answers contained therein, the defendant recalled opening the door of an automobile from which some items of personalty apparently were taken by him; but he maintained that his recollection was vague and that he was drunk. The defendant did not testify at the trial.
In making his argument to the jury the prosecuting attorney made the following statement:
(Emphasis ours.)
and further:
'* * * Oscar first said, and I'm talking about whether he has got the intestinal fortitude to admit what all these people say is the truth * * *.' (Emphasis ours.)
The foregoing comments are susceptible of several different connotations, one of which is that the prosecutor was referring to the pre-trial statements of the accused. Another connotation, which seems to us inescapable, is that if the appellant had dared take the stand at the trial in progress he would have been impelled under the sanctity of his oath to admit the elements of the crimes which the prosecutor was attempting to prove.
To argue the obvious might seem an innocuous gesture; but Florida Statutes, § 918.09, F.S.A. provides that the prosecuting attorney shall not be permitted before the jury or court to comment on the failure of the accused to testify in his own behalf. This statutory injunction is not a superficial rule which the prosecution can safely disregard under cover of harmless error or a possible alternative construction of the objectionable comment. In discussing the prohibition Judge Kanner, in McLendon v. State, Fla.App.1958, 105 So.2d 513, 514, said:
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Singleton v. State
...119 Fla. 341, 161 So. 380; Steffanos v. State, 80 Fla. 309, 86 So. 204; Pinckney v. State, Fla.App.1962, 142 So.2d 144; Suarez v. State, Fla.App.1962, 136 So.2d 367; Kolsky v. State, Fla.App.1966, 182 So.2d The rule has been applied in a myriad of varied circumstances. 6 Thus, under pain of......
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Jones v. State
...footnote that the several articles of personalty referred to were of value--or the court judicially noted as much. Compare Suarez v. State, Fla.App.1962, 136 So.2d 367. ...
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Spencer v. State
...the time of the theft. Hicks v. State, 1937, 127 Fla. 669, 173 So. 815; Lambert v. State, Fla.App.1959, 111 So.2d 68; Suarez v. State, Fla.App.1962, 136 So.2d 367, 369; Escobar v. State, Fla.App.1965, 181 So.2d 193, 17 A.L.R.3d 1390; Moore v. State, Fla.App.1966, 183 So.2d 563; and Todd v. ......
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Drakes v. State, 79-1705
...of the value of the property stolen from the Turner house is insufficient to support the conviction of grand larceny. Suarez v. State, 136 So.2d 367 (Fla.2d DCA 1962). Accordingly, appellant's conviction of grand larceny under count III of amended information 78-198, being count VIII of the......