Watson v. State, No. BH-354

CourtCourt of Appeal of Florida (US)
Writing for the CourtMILLS; BOOTH, C.J., and WENTWORTH
Parties11 Fla. L. Weekly 2504 Mark WATSON, Appellant, v. STATE of Florida, Appellee.
Decision Date02 December 1986
Docket NumberNo. BH-354

Page 1267

504 So.2d 1267
11 Fla. L. Weekly 2504
Mark WATSON, Appellant,
v.
STATE of Florida, Appellee.
No. BH-354.
District Court of Appeal of Florida,
First District.
Dec. 2, 1986.

Page 1268

Michael Allen, Public Defender, Terry P. Lewis, Sp. Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., John M. Koenig, Jr., Asst. Atty. Gen., for appellee.

MILLS, Judge.

In this appeal from a conviction for sexual battery with great force, the following issues are presented for our consideration: (1) whether the trial court erred in denying Watson's motions for a mistrial based on alleged improper comments by a state witness and by the prosecutor on Watson's right to remain silent; (2) whether the trial court erred in refusing to give Watson's proposed jury instructions; (3) whether the trial court erred in determining that Watson was a habitual offender when the court specifically found it was not necessary for the protection of the public to sentence Watson pursuant to the habitual felony offender statute; and (4) whether the trial court erred in departing from the recommended guidelines sentence. We affirm Watson's conviction but reverse the sentence imposed thereon.

As to the first issue raised, any comment on an accused's exercise of his right to remain silent is reversible error, without regard for the harmless-error doctrine. Bennett v. State, 316 So.2d 41 (Fla.1975). However, for Bennett to apply, the accused must have exercised his right to remain silent. Donovan v. State, 417 So.2d 674 (Fla.1982).

In the present case, Watson was given a Miranda warning at the scene of the crime but waived his right to remain silent by voluntarily making exculpatory statements to Officer Patricia Malloy. While at the station in a holding cell, Watson again requested to speak to Officer Malloy. In response, Officer Malloy reminded Watson of his Miranda rights and he proceeded to make further exculpatory statements.

Herein, Watson contends that Officer Malloy's statement, "I asked the defendant if he had anything further to say to me. He indicated that he did not ...," was an improper comment on his silence. However, clearly Watson had not invoked his right to remain silent and the officer's comment was only meant to indicate that at the end of the defendant's statement to her, he communicated he had nothing further to say. See, Gosney v. State, 382 So.2d 838 (Fla.5th DCA 1980) (whether a comment is improper depends upon the full context in which it was made and whether the jury could fairly conclude it was a comment on the defendant's right to remain silent).

The other remark which Watson claims was highly prejudicial was that made by the prosecutor during closing arguments:

[T]he strangulation marks on the neck. Now, the Defendant would like to have you believe after hearing the evidence that's before you today: Oh, I can explain that. Yes, I believe I did have my hands down there when I was making love to her.

The interesting part is that's the first time you heard it was yesterday in this Court. Where was that explanation before?

Again, we do not believe this can be construed as an improper remark on Watson's silence because the defendant did not invoke his right to remain silent. Rather, this prosecutorial remark seems aimed at pointing out the inconsistencies in Watson's

Page 1269

exculpatory statements. Hence, we find no error under this issue.

Secondly, Watson maintains the jury could have found the victim was so drunk on the night of the assault that she could not or did not effectively communicate to him that she did not wish to have sexual intercourse; and, therefore, it was error for the trial court to refuse to give one of the following requested instructions to the jury:

(1) The first instruction mirrored the standard jury charge for sexual battery and then added this clause: ... and the circumstances were such that either [the victim] effectively...

To continue reading

Request your trial
13 practice notes
  • Gross v. State, No. SC95302.
    • United States
    • United States State Supreme Court of Florida
    • July 14, 2000
    ...that is an incorrect statement of the law is not error. See Russell v. State, 576 So.2d 389, 391-92 (Fla. 1st DCA 1991); Watson v. State, 504 So.2d 1267, 1269 (Fla. 1st DCA 1986). As mentioned earlier, Gross requested an instruction which would have essentially required the State to establi......
  • Valdes v. State, No. 97-2896.
    • United States
    • Court of Appeal of Florida (US)
    • April 7, 1999
    ...C.J., and GODERICH and GREEN, JJ. PER CURIAM. There is no merit either in the defendant's sole claim of trial error, see Watson v. State, 504 So.2d 1267 (Fla. 1st DCA 1986), review denied, 506 So.2d 1043 (Fla.1987); Gosney v. State, 382 So.2d 838 (Fla. 5th DCA 1980), or in his challenge to ......
  • Watson v. Dugger, No. 90-3921
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 22, 1991
    ...jury instructions was not necessary to properly instruct the jury on the state law under which he was charged. Watson v. State, 504 So.2d 1267, 1269 (Fla.Dist.Ct.App.1986). The Florida Supreme Court denied a petition for certiorari. Watson v. State, 506 So.2d 1043 Over fifty years ago the U......
  • Ivey v. State, No. 90-3328
    • United States
    • Court of Appeal of Florida (US)
    • September 18, 1991
    ...on the right of the defendant not to testify or to remain silent is constitutional error and should be avoided." In Watson v. State, 504 So.2d 1267 (Fla. 1st DCA 1986), rev. denied, 506 So.2d 1043 (Fla.1987), this court held that for such an error to be found, the accused must have exercise......
  • Request a trial to view additional results
13 cases
  • Gross v. State, No. SC95302.
    • United States
    • United States State Supreme Court of Florida
    • July 14, 2000
    ...that is an incorrect statement of the law is not error. See Russell v. State, 576 So.2d 389, 391-92 (Fla. 1st DCA 1991); Watson v. State, 504 So.2d 1267, 1269 (Fla. 1st DCA 1986). As mentioned earlier, Gross requested an instruction which would have essentially required the State to establi......
  • Valdes v. State, No. 97-2896.
    • United States
    • Court of Appeal of Florida (US)
    • April 7, 1999
    ...C.J., and GODERICH and GREEN, JJ. PER CURIAM. There is no merit either in the defendant's sole claim of trial error, see Watson v. State, 504 So.2d 1267 (Fla. 1st DCA 1986), review denied, 506 So.2d 1043 (Fla.1987); Gosney v. State, 382 So.2d 838 (Fla. 5th DCA 1980), or in his challenge to ......
  • Watson v. Dugger, No. 90-3921
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 22, 1991
    ...jury instructions was not necessary to properly instruct the jury on the state law under which he was charged. Watson v. State, 504 So.2d 1267, 1269 (Fla.Dist.Ct.App.1986). The Florida Supreme Court denied a petition for certiorari. Watson v. State, 506 So.2d 1043 Over fifty years ago the U......
  • Ivey v. State, No. 90-3328
    • United States
    • Court of Appeal of Florida (US)
    • September 18, 1991
    ...on the right of the defendant not to testify or to remain silent is constitutional error and should be avoided." In Watson v. State, 504 So.2d 1267 (Fla. 1st DCA 1986), rev. denied, 506 So.2d 1043 (Fla.1987), this court held that for such an error to be found, the accused must have exercise......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT