Wilson v. State, JJ-2

• Decision Date: 22 December 1978
• Docket Number: No. JJ-2,JJ-2
• Citation: Wilson v. State, 371 So.2d 126 (Fla. App. 1978)
• Parties: Peter Mason WILSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 126

371 So.2d 126

Peter Mason WILSON, Appellant, v.STATE of Florida, Appellee.

No. JJ-2.

District Court of Appeal of Florida, First District.

Dec. 22, 1978.

Stephen Lindsey Gorman and Sidney L. Matthew, Daniel S. Dearing, Tallahassee, for appellant.

Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.

MILLS, Judge.

Case Summary

This is an appeal from a judgment and sentence adjudicating Wilson guilty of a lewd act on a child under fourteen years of age and solicitation for a lewd act on a child under fourteen, and sentencing Wilson to five years on each count to run concurrently.

Facts

The State produced witnesses who testified that Wilson took movies of them performing various sexual acts.Wilson did not testify.

During closing argument the state attorney made comments which were objected to by defense counsel.The first statement to which an objection was made is as follows:

"I don't want you to convict an innocent man.And you're not called on to do that.I can look each of you right straight, square in the eye, and never bat my eye, and tell you that I believe with all my heart, mind and soul, this defendant to be guilty of these offenses.I'm not asking you to convict an innocent man.I'm not asking you to do that."

Later in the argument the state attorney said:

"He says I'll try to sweep under the rug that we don't have any film.Ladies and Gentlemen, we never charged Dr. Peter Wilson, the educator . . . with being dumb, stupid, slow, unintelligent.Ladies and Gentlemen, we don't have the film.We do not have the film.If we had them, I would have showed them to you.Dr. Wilson maybe could shed some light on it."

Issue

Whether the comments made by the prosecuting attorney during closing argument require reversal of this case?

Wilson contends that the comments constituted reversible error because: (1) the first was an expression of the prosecutor's personal opinion on the justness of the cause; (2) the second was comment on Wilson's right to remain silent.

The State contends that the comments did not constitute reversible error because: (1) the first comment was fair response to defense counsel's argument, was legitimate comment on the evidence, and did not contain any implication that the opinion was based on information other than that presented in open court; (2) the second comment was in response to defense counsel's closing argument and, if error, was harmless.

Decision

Rule 3.250,Florida Rules of Criminal Procedure, formerly Section 918.09,Florida Statutes, reads in part:

". . . no accused person shall be compelled to give testimony against himself, 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 . . . ."

In Trafficante v. State, 92 So.2d 811(Fla.1957), the Supreme Court discussed Section 918.09, stating:

". . . 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."

We think that the prosecuting attorney's comment, "Dr. Wilson maybe could shed some light on it," was an indirect comment on the defendant's failure to testify and requires reversal of this case.

The State argues that the comment was "invited" because defense counsel mentioned in his closing argument that the film allegedly taken by Wilson had not been produced.Comment by defense counsel on the State's failure to produce certain evidence does not "invite" the prosecuting attorney to suggest to the jury that the defendant could "shed some light on it".Adjmi v. State, 139 So.2d 179(Fla.3d DCA1962);Testasecca v. State, 115 So.2d 584(Fla.2d DCA1959), andWaid v. State, 58 So.2d 146(Fla.1952), cited by the State to support its position, are not on point.In Testasecca and Waid, defense counsel in their closing arguments specifically mentioned the fact that the defendants had not taken the stand.In Testasecca, after defense counsel pointed out that the defendant was under no duty to take the stand and that his not taking the stand did not indicate that he was guilty, the prosecution replied that it did not indicate that he was innocent either.In Waid, defense counse...