Turner v. State, 81-2368
Decision Date | 08 June 1982 |
Docket Number | No. 81-2368,81-2368 |
Citation | 414 So.2d 1161 |
Parties | Willie TURNER, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Dubiner & Blumberg, West Palm Beach, and Sara Bresky Blumberg, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and John F. Robenalt, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
Turner, charged with second-degree murder, was convicted of manslaughter. We reverse for two reasons.
After the jury (initially instructed on, inter alia, the law relating to second-degree murder, manslaughter and excusable and justifiable homicide) retired to deliberate, it asked in a note to the court: "Can you explain or define the charge of manslaughter and second degree murder as stated by you in the law ...?" The trial court reinstructed the jury in accordance with the request in the note and refused Turner's request to reinstruct the jury on excusable and justifiable homicide.
While in some instances it is not error to limit a reinstruction to a direct response to the jury's specific request, see, e.g., Henry v. State, 359 So.2d 864 (Fla.1978) ( ), when the jury's request necessarily elicits a reinstruction on manslaughter and the defendant is convicted of manslaughter, it is error to fail to reinstruct on excusable and justifiable homicide as a necessary concomitant of manslaughter. 1 Hedges v. State, 172 So.2d 824 (Fla.1965); Kelsey v. State, 410 So.2d 988 (Fla. 1st DCA 1982); Gross v. State, 397 So.2d 313 (Fla. 4th DCA 1981); Lawson v. State, 383 So.2d 1114 (Fla. 3d DCA 1980). The oft-repeated reason for this rule is:
Hedges v. State, supra, at 826.
Additionally, the trial court erred in denying Turner's motion for mistrial when the State improperly elicited testimony from a police officer that Turner, after being given Miranda warnings and making certain statements, ultimately stated "that is all I am gonna tell you right now."
Florida courts have persistently held that any reference in the jury's presence to the defendant's assertion of his right to decline to answer police questions is reversible when the error of such comment is, as here, properly preserved. Clark v. State, 363 So.2d 331 (Fla.1978); Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975); Barnes v. State, 375 So.2d 40 (Fla. 3d DCA 1979); Thomas v. State, 342 So.2d 991 (Fla. 3d DCA 1977). In our view, the comment in the present case can only be construed as a comment on Turner's refusal to further speak, see Peterson v. State, 405 So.2d 997, 999 (Fla. 3d DCA 1981) ( ); Thompson v. State, 386 So.2d 264, 266 (Fla. 3d DCA 1980) ( ); Lucas v. State, 335 So.2d 566, 567 (Fla. 1st DCA 1976) (...
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...that error was not reversible because defendant was convicted of second-degree murder. Compare Turner v. State, 414 So.2d 1161 (Fla.Dist.Ct.App.1982) (reversible error not to reinstruct on excusable homicide after reinstructing on manslaughter when defendant is convicted of manslaughter) wi......
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Garcia v. State, 87-2543
...is error to fail to reinstruct on excusable and justifiable homicide as a necessary concomitant of manslaughter." Turner v. State, 414 So.2d 1161, 1161-62 (Fla. 3d DCA 1982) (emphasis supplied). Kelsey v. State, 410 So.2d 988 (Fla. 1st DCA 1982); Gross v. State, 397 So.2d 313 (Fla. 4th DCA ......
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Love v. State, 82-998
...denial of knowledge of the matter being inquired into was not an invocation of the Fifth Amendment privilege). Cf. Turner v. State, 414 So.2d 1161 (Fla. 3d DCA 1982) (where defendant, having been warned of his right to remain silent, made certain statements short of a confession but then st......
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Burns v. State, 84-947
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