159 So. 3d 987
Fla. Dist. Ct. App.2015Background
- Johnnie Floyd was convicted at trial; he argued self-defense and appealed postconviction under Fla. R. Crim. P. 3.850.
- This is the second appeal: the First DCA previously reversed in part and remanded to determine whether counsel was ineffective for failing to object to the prosecutor’s questioning about Floyd’s post-arrest silence.
- At trial the prosecutor repeatedly questioned Floyd about why he did not talk to police after arrest, implying his trial story was fabricated.
- On remand an evidentiary hearing was held; trial counsel admitted he thought the questions were improper but chose not to object to avoid antagonizing the jury. Counsel did, however, make other objections during the same cross-examination.
- The court found there was no competent, substantial evidence that counsel’s failure to object was a reasonable tactical choice and concluded the error was prejudicial given Floyd’s self-defense theory where his credibility was central.
- The court reversed the denial of postconviction relief and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was constitutionally ineffective for not objecting to prosecutor's comments on post-arrest silence | Floyd: counsel deficient for failing to object to Doyle/Hale-type questioning that commented on silence | State: counsel’s inaction was a reasonable tactical decision to avoid irritating the jury | Held: Counsel’s performance was deficient; the record lacks competent evidence that the choice was tactical/reasonable |
| Whether the failure to object prejudiced the defense under Strickland | Floyd: silencing comment likely undermined confidence in verdict because credibility was key to self-defense | State: any error was harmless or tactical and did not create reasonable probability of different outcome | Held: Prejudice shown — reasonable probability the outcome would differ absent the improper questioning |
| Whether comments on post-arrest silence are permissible impeachment | Floyd: such comments are unconstitutional and highly prejudicial given Miranda warnings | State: implied the questioning was legitimate impeachment of inconsistencies | Held: Citing Doyle/Hale, the court reaffirmed that comments on post-arrest silence carry intolerable prejudicial impact and should not be used to impeach |
Key Cases Cited
- Jones v. State, 998 So.2d 573 (Fla. 2008) (Strickland standard for ineffective assistance explained)
- Doyle v. Ohio, 426 U.S. 610 (U.S. 1976) (prosecution may not use post‑arrest silence for impeachment after Miranda warnings)
- United States v. Hale, 422 U.S. 171 (U.S. 1975) (post‑arrest silence has little probative value and is highly prejudicial)
- Rimmer v. State, 825 So.2d 304 (Fla. 2002) (comments on defendant’s silence are serious error)