136 So. 3d 563
Fla.2014Background
- Marston charged with three counts of sexual battery, one count of kidnapping, one count of aggravated battery, and one count of robbery; jury voir dire included extensive prosecutor comments on Marston's right to remain silent.
- Trial court not yet curative instruction; bench conference urged curative, court told to make clear no defense burden.
- Jury instructed with Florida Standard Jury Instructions 3.7 and 3.9(a) and later Preliminary Instruction 2.1 about right to remain silent and no inference from not testifying.
- Evidence included victim identification by photo lineup (75% certainty), DNA on victim’s breasts matching Marston at 13 loci, and other DNA results; Marston’s defense did not present a case.
- Second District affirmed convictions; held comments were improper but harmless due to strong evidence.
- Florida Supreme Court granted review to resolve whether the voir dire comments conflicted with Varona and were harmless; held that comments were improper and harmful, quashing the Second District and approving Varona as to the harmless-error result.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecutor’s voir dire comments violated the right to remain silent. | Marston’s silence was improperly targeted. | State contends comments were not improper. | Yes, improper and prejudicial. |
| Whether the improper comments were harmless beyond a reasonable doubt. | Harmless error analysis fails given high risk of prejudice. | Harmless beyond reasonable doubt due to strong evidence. | No, error not harmless beyond a reasonable doubt. |
| Whether the case conflicts with Varona on harmless-error analysis. | Conflict exists because Varona found harmful error. | Not in conflict; distinguishing facts show harmlessness. | Yes, express and direct conflict with Varona on harmless error. |
Key Cases Cited
- DiGuilio v. State, 491 So.2d 1129 (Fla. 1986) (any comment on right to testify is error and should be avoided)
- Kinchen v. State, 490 So.2d 21 (Fla. 1985) (right to remain silent protected; improper comments barred)
- Varona v. State, 674 So.2d 823 (Fla. 4th DCA 1996) (improper comments on silence require reversal; harmless error analysis applied)
- Andrews v. State, 443 So.2d 78 (Fla. 1983) (comment on silence reversible error absent curative instruction)
- Bertolotti v. State, 476 So.2d 130 (Fla. 1985) (trial judge should cure prosecutorial misconduct; protect fair trial)
- Lakeside v. Oregon, 435 U.S. 333 (U.S. 1978) (premised on constitutional safeguards against inferential guilt from silence)