85 So. 3d 532
Fla. Dist. Ct. App.2012Background
- Defendant convicted of aggravated battery on a pregnant woman (L.F.) with a deadly weapon and battery on S.S., a minor, with a deadly weapon.
- The assaults occurred during a fight at the defendant’s parents’ house after a doctor's appointment, involving L.F. and S.S. with pots, a vacuum, and a gun.
- Defendant and L.F. were involved in a relationship; S.S. is L.F.’s sister and not testifying; defendant testified he was with Regina and that Regina, L.F., and S.S. argued at the time.
- Prosecutor asked the defendant whether he never told the police; defense objected and moved for mistrial; court sustained but denied mistrial; curative instruction given.
- Jury returned guilty verdicts for aggravated battery on a pregnant woman and lesser-included battery offense; sentence: seven years on felony count and six months on misdemeanor.
- Defendant appealed alleging improper comment on right to remain silent and error in denial of mistrial; trial court’s ruling reviewed under abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for denial of mistrial | Defendant argues harmless error standard applies. | State argues abuse of discretion applies. | Abuse of discretion governs denial of mistrial. |
| Whether the prosecutor’s silence comment was improper and prejudicial | Comment on silence was prejudicial and required mistrial. | Comment may be minor; informed by curative instruction remains acceptable. | Unclear that the single unanswered question vitiated the trial; not reversible per abuse standard. |
| Effectiveness of curative instruction | Curative instruction could not cure prejudice from silence comment. | Timely sustenance of objection and curative instruction mitigated prejudice. | Trial court acted properly; curative instruction reduced risk of prejudice. |
Key Cases Cited
- Dessaure v. State, 891 So.2d 455 (Fla.2004) (abuse of discretion standard for mistrial denial; prejudicial error must vitiate trial)
- Poole v. State, 997 So.2d 382 (Fla.2008) (standard for reviewing denial of mistrial after objection and curative instruction)
- Rivera v. State, 859 So.2d 495 (Fla.2003) (abuse of discretion review of silence-comment errors)
- Smithers v. State, 826 So.2d 916 (Fla.2002) (abuse of discretion standard for mistrial denial with curative instruction)
- Hoggins v. State, 718 So.2d 761 (Fla.1998) (concerning admissibility and impact of comments on silence)
- Gore v. State, 784 So.2d 428 (Fla.2001) (use of curative instruction and avoidance of harmless error framework when objection sustained)