Urbaniak v. State

• Decision Date: 28 March 2018
• Docket Number: Case No. 2D16–4612
• Parties: John URBANIAK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

241 So.3d 963

John URBANIAK, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D16–4612

District Court of Appeal of Florida, Second District.

Opinion filed March 28, 2018

Howard L. Dimmig, II, Public Defender, and Matthew J. Salvia, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

John Urbaniak appeals his convictions and sentences for one count of battery and one count of attempted battery following a jury trial. We affirm Urbaniak's judgment and sentences but write to address one of his arguments on appeal and the State's response to it.

Law enforcement and EMS were dispatched to Urbaniak's home after receiving a 911 call from Urbaniak's sister. After the responding police deputy interviewed the individuals at the scene, he took Urbaniak into custody. Urbaniak argues that the deputy improperly commented on his right to remain silent when he testified on direct during the State's case-in-chief that he "did make an attempt to interview the defendant, but he was mute the whole time. He refused to talk.... [H]e was just making some mumblings and refused to talk." The deputy also testified, "I gave the defendant an opportunity to speak with me but he refused, so he was placed under arrest."

Comment on a defendant's silence after arrest is prohibited by the due process clause of the Florida Constitution. Art I, § 9, Fla. Const. "The standard for determining what constitutes a comment on [postarrest] silence is fairly liberal. ‘If the comment is fairly susceptible of being construed by the jury as a comment on the defendant's exercise of his or her right to remain silent, it violates the defendant's right to silence.’ " Green v. State, 27 So.3d 731, 735 (Fla. 2d DCA 2010) (quoting State v. Hoggins, 718 So.2d 761, 769 (Fla. 1998) ); see also State v. Smith, 573 So.2d 306, 317 (Fla. 1990) ("Our cases have made clear that courts must prohibit all evidence or argument that is fairly susceptible of being interpreted by the jury as a comment on the right of silence.").

The State contends that the deputy's comments were "a recounting of what happened between the deputy and Urbaniak during [the] investigation rather than a comment on appellant's right to remain silent." We are not persuaded; the deputy's testimony that Urbaniak was arrested after he failed to offer any explanation about what had happened was certainly an impermissible comment on Urbaniak's right to remain silent. See, e.g., State v. Horwitz, 191 So.3d 429, 445 (Fla. 2016) (concluding that "[t]here [was] no question ... that the State directly commented on [the defendant's] silence" when the State elicited testimony from officers that the defendant "didn't answer" when asked about what had happened immediately after the incident); Parker v. State, 124 So.3d 1023, 1026 n.2 (Fla. 2d DCA 2013) (explaining that a detective's response that the defendant "just didn't answer the question" was an improper comment on the defendant's right to remain silent); Green, 27 So.3d at 736 (holding that an officer's testimony that the defendant "refused" to give any postarrest statements to police "was more than ‘fairly susceptible’ of being interpreted as a comment on [the defendant's] right to remain silent" and concluding that the admission of this testimony was reversible error); Ash v. State, 995 So.2d 1158, 1158 (Fla. 1st DCA 2008) (holding that an officer testifying that the defendant "replied that he's got nothing to say to me" when asked what had happened was a violation of the defendant's right to remain silent); Charton v. State, 716 So.2d 803, 806 (Fla. 4th DCA 1998) (affirming that comments regarding a defendant's refusal "to explain his presence and conduct" prior to arrest violated the defendant's right to remain silent); Carr v. State, 561 So.2d 617, 618–19 (Fla. 5th DCA 1990) (concluding that an officer testifying that when he asked the defendant what happened after arriving at the scene of a car accident, the defendant "carried on no dialogue and I got no answer" violated the defendant's right to remain silent).

In this case, the deputy specifically referred to Urbaniak's prearrest silence, which invokes a slightly different constitutional standard for admission than comment on postarrest silence. Although the use of a defendant's prearrest silence is not precluded in federal court unless the defendant first invoked his right to remain silent, Salinas v. Texas, 570 U.S. 178, 191, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013) (plurality opinion) ("Before petitioner could rely on the privilege against self-incrimination, he was required to invoke it."), the issue is more nuanced under the Florida Constitution, Horwitz, 191 So.3d at 439 ("[T]he privilege against self-incrimination provided in the Florida Constitution offers more protection than the right provided in the Fifth Amendment to the United States Constitution."). Under the Florida Constitution, the State may not admit a defendant's prearrest, pre- Miranda ¹ silence as substantive evidence of guilt or when the defendant fails to testify. Horwitz, 191 So.3d at 442 ("If [a defendant] could not be made a self-accusing witness by coerced answers, he should not be made a witness against himself by unspoken assumed answers." (alteration in original) (quoting Commonwealth v. Molina, 628 Pa. 465, 104 A.3d 430, 450 (2014) ) ). However, prearrest, pre- Miranda silence may be used to impeach a defendant when he testifies at trial, "only if the silence was inconsistent with the defendant's testimony at trial." Id. at 440 (emphasis omitted); see also Hoggins, 718 So.2d at...