Donna Horwitz v. State
189 So. 3d 800
Fla. Dist. Ct. App.2015Background
- Appellant Donna Horwitz was charged with first‑degree murder with a firearm for the shooting death of her former husband, Lanny Horwitz, on September 30, 2011.
- Radley Horwitz, the couple’s son, testified as the key witness and the case included evidence of lingering tensions and Lanny’s travel plans with a female business associate.
- Morning of the shooting, Radley heard gunshots and observed Appellant in the home while the alarm was triggered; police and guards responded and found Lanny in the master bathroom with a gun in his hand.
- DNA testing showed mixed sources on the gun found on the bathroom floor and the gun on the dresser, with appellant not being excluded as a contributor to one mixture; other DNA sources were excluded or inconclusive.
- A bloody finger smudge on the gate and a suitcase with Appellant’s name containing matching ammunition connected Appellant to the scene; the police found her journal with references to Lanny’s relationship with the business associate.
- During trial, the state admitted evidence of Appellant’s pre‑arrest, pre‑Miranda silence over objections, and the prosecutor commented on that silence in closing; Appellant did not testify at trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of pre‑arrest, pre‑Miranda silence | Horwitz argues such silence is inadmissible when the defendant does not testify | State argues silence may impeach or be admitted under Florida law following Rodriguez | Admissible only if silent behavior was inconsistent with trial testimony; here it was inadmissible; reversed and new trial ordered. |
Key Cases Cited
- State v. Hoggins, 718 So.2d 761 (Fla.1998) (pre‑arrest, pre‑Miranda silence admissible only if inconsistent with trial testimony; otherwise inadmissible)
- Rodriguez v. State, 619 So.2d 1031 (Fla.3d DCA 1993) (pre‑arrest silence may impeach credibility, not necessarily admissible as substantive evidence)
- State v. Jones, 461 So.2d 97 (Fla.1984) (silence not violated when elicited from non‑state actor in private detention setting)
- Salinas v. Texas, 133 S. Ct. 2174 (2013) (police may comment on pre‑arrest silence unless invoked privilege; Florida law may provide greater protection)
- Lopez v. State, 97 So.3d 301 (Fla.4th DCA 2012) (trial court abuse of discretion standard; impeachment framework cited)
- Rigterink v. State, 66 So.3d 866 (Fla.2011) (Florida constitutional right may provide greater protection than federal)