Thompson v. State
| Decision Date | 08 April 1980 |
| Docket Number | No. 78-513,78-513 |
| Parties | Wilbert THOMPSON, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender and Bart Eagle, Legal Intern, for appellant.
Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
Before HAVERFIELD, C. J., SCHWARTZ, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
Defendant, Wilbert Thompson, appeals his convictions for involuntary sexual battery, false imprisonment and unlawful possession of a weapon while engaged in a criminal offense. The evidence presented was as follows:
Ms. "D", the victim, was walking through a park in the early morning hours when she was approached by the defendant, Wilbert Thompson, who was carrying a knife. He took her to a park bathroom, ordered her to undress, placed his penis in her vagina three times and had her perform fellatio. Thompson then had her get dressed. They left the bathroom and walked back through the park toward her apartment. As they approached her husband's car which was parked in the driveway, Thompson asked Ms. "D" if she had the keys and if she could drive the car. She answered she had the keys but did not know how to drive the car because it was a stick shift. Thompson took the keys from her and as he unlocked the car and began to get into it, she ran up the stairs to the apartment building and screamed to her neighbors to call the police. Thompson jumped out of the car and fled. The neighbors summoned the police who later that day picked up Thompson who was positively identified by Ms. "D" as her assailant. Officer Fleites transported Thompson to the Miami Police Department where Thompson was read his Miranda rights. Fleites began to question Thompson who denied being in the area and raping Mrs. "D". When questioned further about attempting to steal the car, Thompson again denied involvement and answered "besides . . . I don't know how to drive a four-speed". Fleites then asked Thompson how he knew the car in question was a four-speed as he (Fleites) did not mention it. At that point Thompson became belligerent and would not talk any further.
Thompson was charged with involuntary sexual battery, robbery, false imprisonment, and unlawful possession of a weapon while engaged in a criminal offense. Following his jury trial, he was acquitted of the robbery charge and found guilty on the other three counts.
On appeal, Thompson first urges as reversible error the denial of his motion for mistrial on the ground that the prosecutor in his opening statement to the jury commented upon his right to remain silent during custodial interrogation.
This point is based upon the following remarks of the prosecutor in his opening statement with regard to the testimony which would be given by Officer Fleites who interrogated Thompson after he was placed under arrest:
Detective Fleites asked him, "Mr. Thompson, were you in that park that night?
And at that point the Defendant did make a statement. He said,
Detective Fleites will tell you that when he questioned the Defendant he did not mention that car that the Mustang was a four-speed.
So, Detective Fleites said to him,
(Thereupon, respective counsel and the reporter approached the Bench and the following proceedings were had out of the hearing of the jury.)
MR. LAMEL: Your Honor, based on the Prosecutor's last comment, I am going to move to strike those comments; request a curative instruction. However, I don't think that's sufficient. So, I am also going to move for a mistrial. The grounds for these motions are that he's violated the Defendant's right to remain silent after receiving his Miranda Rights. The fact that Mr. Thompson may have said some things to the police officer does not to take away his right to cut off questioning at any time and invoke his Fifth Amendment privilege.
By Mr. Eade commenting that the Defendant did, in fact, reinvoke his right he's prejudiced that right to remain silent in front of the jury.
The established law is that if an individual, after Miranda warnings have been given, indicates in any manner at any time prior to or during questioning that he wishes to remain silent, the interrogation must cease because at this point he or she has demonstrated that he intends to exercise his Fifth Amendment privilege. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); Gamble v. State, 210 So.2d 238 (Fla.2d DCA 1968). Reversible error occurs in a jury trial when a prosecutor improperly comments upon or elicits an improper comment from a witness concerning the defendant's exercise of his right to remain silent in the face of accusation. Clark v. State, 363 So.2d 331 (Fla.1978). Any comment upon a defendant's remaining silent or refusing to testify in the face of accusation is an error of constitutional dimension requiring a new trial without consideration of the doctrine of harmless error. Shannon v. State, 335 So.2d 5 (Fla.1976); Thomas v. State, 342 So.2d 991 (Fla.3d DCA 1977).
In the case at bar, when Officer Fleites questioned Thompson as to how he knew the car in question was a four-speed (in that Fleites had not previously mentioned that fact), Thompson became belligerent and refused to talk any further. At that point, Thompson obviously had invoked his right to remain silent in the face of The State argues that Thompson's refusal to answer the question of how he knew the car was a four-speed was an admission rather than an exercise of his right to remain silent. This argument is based upon the principle of law that an admission may be inferred from silence, where such silence is improper or unnatural. Martinez v. United States, 295 F.2d 426, 429 (10th Cir. 1961); Falin v. State, 367 So.2d 675 (Fla.3d DCA 1979). Nevertheless, our Supreme Court has clearly held that "all 'admissions' derived from a defendant's silence in the course of a custodial interrogation . . . are absolutely barred from the defendant's trial". Brown v. State, 367 So.2d 616, 624 (Fla.1979).
accusation. See Davis v. State, 356 So.2d 1252 (Fla.4th DCA 1978). We, therefore, conclude that the prosecutor's remarks to the jury with regard to Thompson becoming belligerent and refusing to talk any further constituted an improper comment upon Thompson's right to remain...
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