Trafficante v. State

• Decision Date: 23 January 1957
• Citation: 92 So.2d 811
• Parties: Santo TRAFFICANTE, Jr., and Henry Trafficante, Appellants, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 811

92 So.2d 811

Santo TRAFFICANTE, Jr., and Henry Trafficante, Appellants, v. STATE of Florida, Appellee.

Supreme Court of Florida, en Banc.

Jan. 23, 1957.

Rehearing Denied March 13, 1957.

Whitaker Brothers, Mark R. Hawes and John R. Parkhill, Tampa, for appellants.

Richard W. Ervin, Atty. Gen., and Jos. P. Manners, Asst. Atty. Gen., for appellee.

PER CURIAM.

Appellants here seek review of their conviction of violating the bribery laws of the State of Florida.

They first contend that the trial court erred in permitting the State Attorney directly or indirectly to comment upon the fact that appellants failed to take the witness stand and testify in their own behalf. The basis for this contention is found in certain remarks made by the State Attorney in his final argument to the jury, which remarks were in part as follows:

'* * * All right. The testimony here is uncontradicted, uncontradicted, by these two Trafficantes, this was said in the car. They were both there, is there anyone, is there any statement here in evidence that either one of them contradicted, regardless of who said it? They have their right * * *.'

It is urged by appellants that these remarks were in violation of F.S. § 918.09, F.S.A., which provides in part as follows:

'* * * nor shall any prosecuting attorney be permitted before the jury or court to comment on the failure of the accused to testify in his own behalf * * *.'

This statute has been on the books for many years, and this court is firmly committed to the rule that a violation of it cannot be cured by our harmless error statute. In Way v. State, Fla., 67 So.2d 321, 323, we stated in part:

'When it appears that there has been a violation of Section 918.09, supra, our harmless error statute does not come into play because Section 918.09, supra, was designed to protect the defendant in a criminal case from having the jury consider his failure to take the witness stand in his own behalf as even the slightest suggestion of guilt. When such impression has been made on the minds of the jurors it cannot by this Court be said 'that the error complained of has [not] resulted in a miscarriage of justice.''

See also Simmons v. State, 139 Fla. 645, 190 So. 756.

The State urges that the remarks objected to in the instant case should not be construed as a comment upon the failure of the appellants to take the witness stand, since they might have been construed as referring to a conversation which took place between appellants and a State witness before the trial. Upon the whole record, however, we believe that the average juror would have considered the prosecutor's remarks at least as an indirect reference to the fact that appellants did not take the witness stand in their defense. Before making the statement we have quoted, the prosecutor had reviewed the evidence, and the most obvious construction of the quoted remarks would be that appellants had contradicted none of this evidence, although, by testifying, they would have had a right to do so. It is significant that the construction urged by the State is presented here for the first time, and the record is innocent of any similar explanation by the State Attorney in answer to appellants' objections and motions for a mistrial. We conclude that the jury would have adopted the construction contended for by appellants.

As for the guarded nature of the remarks, we have hitherto held that a similarly indirect statement by the prosecutor constituted a violation of the statute. In Rowe v. State, 87 Fla. 17, 98 So. 613, 617, we said:

'This statement by the state attorney, to the effect that there were 'five eyewitnesses to the homicide; two were dead; two were the defendants; and the fifth, Leonard Wingate, had testified in this trial,' called to the attention of the jury that the two defendants had not testified.

'In this instance the court took no action but merely said he would 'instruct the jury at the proper time as to the law of the case.' Even if the trial judge and stopped the state attorney and told the jury not to consider the failure of the defendants to testify, it would not have cured the error.'

See also Way v. State, supra, 67 So.2d 321. The law of other states is similar. In the Alabama case of Broadway v. State, 257 Ala. 414, 60 So.2d 701, 703, the court stated:

'It is our opinion that such statements not having direct reference to the failure of the defendant to testify should be interpreted in the light of what has transpired in the case, the nature of the evidence against the defendant, the burden of proof fixed by law, and any other circumstances which may have occurred during the trial having a tendency to show that the solicitor a tendency to show that the the failure of the defendant to testify rather than to a failure to submit the testimony of other witnesses, which may have been peculiarly subject to his call and known to defendant to be available to him.'

See also Smith v. State, 87 Miss. 627, 40 So. 229, wherein the same reasoning was applied by the Supreme Court of Mississippi, and 53 Am.Jur., Trial, Section 471, pp. 376-377. In the instant case the witness Dietrich was relating a conversation which took place between him and the two appellants. No one else was present 'in the car' during said conversation. Consequently the remarks of the State Attorney could not have been directed 'to a failure to submit the testimony of other witnesses.'

In summary, our law prohibits any comment to be made, directly or indirectly, upon the failure of the defendant to testify. This is true without regard to the character of the comment, or the motive or intent with which it is made, if such comment is subject to an interpretation which would bring it within the statutory prohibition and regardless of its susceptibility to a different construction. The comment of the State Attorney herein might merely have been lapsus linguae in the heat of argument, but it constituted a violation of F.S. § 918.09, F.S.A., supra.

Next, it appears from the record that the State witness Dietrich had testified before the grand jury of Pinellas County prior to the trial of this case. The appellants made two efforts to secure a transcript of Dietrich's grand jury testimony. Prior to the trial, appellants made a motion in accordance with F.S. § 905.27, F.S.A., for production of the transcript. F.S. § 905.27, F.S.A., prohibits disclosure by certain persons of testimony given before a grand jury 'except when required by a court to disclose the testimony of a witness examined before the grand jury for the purpose of ascertaining whether it is consistent with that of the witness given before the court * * *.' F.S. § 905.17, F.S.A. provides in part that transcriptions of testimony before a grand jury 'shall be opened and released by the clerk upon the order of the trial judge for use pursuant to the provisions of § 905.27, [Florida Statutes] * * *.'

Later, at the trial, when the witness Dietrich was tendered to defense counsel for cross-examination, appellants presented to the court a sworn application for subpoena duces tecum to be directed to the official court reporter. This application set out that the official reporter had reported and transcribed the witness Dietrich's testimony before the grand jury, and that said testimony was material and relevant to, and in conflict with, the testimony of this witness given on direct examination at the trial. Appellants offered to prove these facts. The application and offer of proof were denied by the trial court.

Appellants contend that they had a right to the issuance of the subpoena duces tecum to compel the court reporter to appear as a defense witness and to bring with her the transcript of the witness Dietrich's testimony as given before the grand jury, making same available to defense counsel in order that it might be utilized in cross-examination of the witness Dietrich. In support of other contention, appellants rely upon our opinions in Vann v. State, Fla., 85 So.2d 133, and State ex re. Brown V. Dewell, 123 Fla. 785, 167 So. 687, as well as the case of United States v. Aaron Burr, Fed.Cas.No....