Brown v. State
197 So. 3d 569
Fla. Dist. Ct. App.
2015
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Robert Brown, Appellant, vs. The State of Florida, Appellee.

No. 3D13-2288

Lower Tribunal No. 09-28442

Third District Court of Appeal State of Florida

Opinion filed March 25, 2015.

Not final until disposition of timely filed motion for rehearing.

Before SHEPHERD, C.J., and EMAS and SCALES, JJ.

An Appeal from the Circuit Court for Miami-Dade County, Bronwyn C. Miller, Judge.

Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.

SHEPHERD, C.J.

Robert Brown appeals his conviction and sentence for trafficking in cocaine, asserting as error the State‘s cross-examination of Brown at trial and later closing argument, questioning why he waited until trial - four years after the date of the crime - to divulge the name of the alleged actual owner of the contraband. Because Brown invoked his right to remain silent, pursuant to ,1 when he was arrested at the scene of the crime and never waived that right during the ensuing four years, we find, as the State has admirably conceded, that the prosecution‘s questioning and argument were in error and shifted the burden of proof to Brown to prove his innocence. See (“Our cases have made clear that courts must prohibit all evidence or argument that is fairly susceptible of being interpreted by the jury as a comment on the right of silence.“); see also, U.S. Const. amend. V (“No Person ... shall be compelled in any criminal case to be a witness against himself); Art. I, § 9, Fla. Const. (“No person shall ... be compelled in any criminal matter to be a witness against oneself.“). We note that in this regard, we have considered the State‘s harmless error argument and are unable to conclude the error was harmless beyond a reasonable doubt. .

Reversed and remanded for a new trial.

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