Williams v. State, 76-1584

• Decision Date: 06 December 1977
• Docket Number: No. 76-1584,76-1584
• Parties: Jeanette WILLIAMS a/k/a Jeanette Morgan, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 588

353 So.2d 588

Jeanette WILLIAMS a/k/a Jeanette Morgan, Appellant, v. The STATE of Florida, Appellee.

No. 76-1584.

District Court of Appeal of Florida, Third District.

Dec. 6, 1977.

Rehearing Denied Jan. 16, 1978.

Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.

Before HENDRY, C. J., and HAVERFIELD and NATHAN, JJ.

NATHAN, Judge.

The defendant, Jeanette Williams, a/k/a Jeanette Morgan, was charged by information with possession of a controlled substance; carrying a concealed firearm; buying, receiving or concealing stolen property; and robbery. She pled not guilty and was tried by jury. The jury returned verdicts of not guilty on the charge of carrying a concealed firearm, and guilty on the remaining charges. The trial court entered a judgment of acquittal on the charge of carrying a concealed firearm, adjudicated the defendant guilty on the remaining charges and sentenced her to 99 years imprisonment on the robbery conviction, and consecutive 5 year terms on the possession and buying, receiving or concealing convictions.

Defendant contends that the State elicited testimony that defendant exercised her right to remain silent while in police custody. The controlling question in this case is whether the admission of the testimony constituted error, and if so, was it fundamental error?

The record reflects that the arresting officer testified that he read the defendant her rights from the standard Miranda card; that she indicated that she understood each of them; and that he said,

". . . 'Knowing your rights, as I have just related them to you, are you now willing to asnwer (sic) any questions without having an attorney present?' She said 'Yes,' but she didn't say anything."

The State then sought to introduce into evidence several inculpatory statements made by the defendant. At this point, defense counsel objected. A hearing on voluntariness was held outside the presence of the jury, and the court ruled,

". . . For the purposes of this hearing, we will determine that the statements that she made, whatever she made, were freely and voluntarily given. That her constitutional rights under Miranda, were protected. The value of those statements or the credit to be given to them are questions for the jury to resolve under appropriate instruction."

The jury was then brought back in, and the officer continued to testify:

A I advised her that she was under arrest for robbery . . .

Q Did she say anything in response to that?

A Not at that time. No, sir.

It is the defendant's position that even without objection having been made by defense counsel, the officer's two statements, "but she didn't say anything," and "(She didn't say anything) at that time. No, sir," were impermissible references to her right to remain silent, constituted a violation of her privilege against self-incrimination, as guaranteed by the United States and Florida Constitutions, and mandate reversal of her convictions. As authority, defendant cites Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Jones v. State, 200 So.2d 574 (Fla. 3d DCA 1967); Bennett v. State, 316 So.2d 41 (Fla.1975). Taking the officer's two statements out of context, we might be inclined to so interpret them. However, we have considered the officer's testimony in its entirety. The State's next question was,

"Q Did there come a time when she made any statement to you?"

The following then transpired:

"A She was sitting in the lobby of the Florida City police station. She made a statement then.

Q What did she say to you then?

A She said then, 'We didn't get any money. All we had, we didn't take any money. We just ripped the man off for his drugs.'

Q Was that in response to any questions?

A No, sir.

Q Did she make any further remarks to you?

A Yes, sir, she did.

Q What further remarks did she make?

A She said, 'I beat a murder rap one time by pleading insanity. I will do the same thing with the robbery charge.' "

We are in agreement with defendant's statement of law that generally, a prosecutor is forbidden from eliciting testimony or from commenting on a defendant's right to remain silent. However, that is not the situation in this case. From the record, we find that the prosecutor was seeking to introduce a statement of the defendant into evidence, and it was necessary to first show that she had been properly warned of her constitutional rights, and that she...