Mathis v. StateMathis v. State
Lead Opinion
Appellant was convicted of robbery and sentenced to life imprisonment. Because the prosecutor, during closing argument to the jury, directly or indirectly commented upon the failure of the defendant to testify, the judgment and sentence must be reversed and this cause remanded for a new trial.
After appellant was arrested and charged with the crime, he was properly warned of his constitutional rights and knowingly and voluntarily signed a written waiver thereof. Some 14 hours later, while still in custody, he voluntarily submitted to interrogation in the course of which he made certain inculpatory statements. During the interrogation the questions and answers were written in longhand by a police officer. Upon completion of the interrogation, another officer again advised appellant of his constitutional rights and after ascertaining that appellant understood and was willing to waive them, the same officer read to appellant the written statement. Appellant then acknowledged that the statement reflected his answers to the questions asked him, that the answers were true, and that he was willing to sign the statement. He then proceeded to sign the statement in the officer’s presence. After the State had laid a proper foundation as to the voluntary nature of the statement, the same was received and read into evidence over objection. In this respect we find no error.
Defendant offered no testimony and was therefore entitled to the opening and closing argument. Defense counsel’s only reference to the signed statement was to remind the jury that they should not consider the statement unless they were satisfied that it had been voluntarily given. During the prosecutor’s response he made the following statement:
“In the evening time — in the fact of the matter, late at night — it was 11:00, I believe, or around that time; 11:30— they gave him another set of rights. It was signed by him in front of Whipple. He gave Whipple a confession. Davenport came in and read the whole thing to him again, and then read over his statement here because — I don’t want to use his term — it is a statement about what he thinks happened and he signed that up there in the Detective Bureau.
“Now, did you hear one thing about him getting beaten up or somebody was pottnding on his head, forcing him into thisf Not a word about it. Mr. Mathis came forward with that on his own hook. He said, yes, here is what happened and here there are two things in this confession.” (Emphasis added.)
At this point appellant’s counsel immediately objected and moved for a mistrial, which the court denied. Such motion would satisfy the requirement of State v. Jones, Fla.1967,
Referring now to the quoted remarks of the prosecutor, we think it clear that the only likely source of testimony to show the defendant “getting beaten up” or that “somebody was pounding on his head” [in order to force him into making the statement], would be the defendant himself. It follows that the logical inference which the jury would draw from these remarks is that the prosecutor was calling their attention indirectly (if not in fact directly) to the fact that appellant had not taken the stand.
In view of the unequivocal identification of appellant by the victim of the robbery, and the voluntary nature of the inculpatory statements made by appellant following his arrest, we would have no difficulty in concluding that the prosecutor’s misconduct in this regard was harmless and hence denial of appellant’s motion for mistrial was harmless error. But our Supreme Court has expressly held, in Way v. State, Fla.1953,
Just recently we have found it necessary to reverse other judgments because of the prosecutor’s misconduct in closing argument to the jury, e. g., Breniser v. State, Fla.App.,
The judgment and sentence are severally reversed and this cause remanded for a new trial.
Reversed and remanded.
Notes
. “Rule 3.250 Accused as Witness
“In all criminal prosecutions the accused may at his option be sworn as a witness in his own behalf, and shall in such case be subject to examination as other witnesses, but no accused person shall be compelled to give testimony against himself, nor shall any prosecuting attorney be permitted before the jury or court to comment on the failure of the accused to testify in his own behalf, and a defendant offering no testimony in his own behalf, except his own, shall be entitled to the concluding argument before the jury.”
Dissenting Opinion
(dissenting).
I must respectfully dissent from the opinion of the majority. From a reading
The decision in State v. Jones, Fla.1967,
It is my belief, however, that the comments made by the prosecutor in the case sub judice when measured against the aforementioned proscription are not of such a character as to be construed as a comment upon the defendant’s failure to testify within the meaning of Rule 3.250 CrPR and its predecessor Section 918.09, F.S.A.
Although the principles set forth in the cases cited by the majority are pertinent the factual circumstances render those decisions distinguishable and consequently inapplicable to the facts in the case sub ju-dice. My reading of the circumstances surrounding the prosecutor’s comments in the case sub judice leads me to believe that such comments were addressed to the evidence as it existed before the jury and were made in direct response to defense counsel’s contention that the defendant’s confession was involuntary and inconclusive. See Washington v. State, Fla.App. 1968,
The views expressed herein are in no way intended to deprecate the judicial duty of safeguarding and protecting the right of a defendant in a criminal proceeding to remain silent; nor should these views be construed as being inapposite to the comments made by the majority concerning the conduct of prosecutors in criminal cases. I am simply of the view that based upon the facts and circumstances of this case, when taken in the context of the record as a whole, the prosecutor’s closing argument was within permissible bounds. I would affirm.
. In Hooks v. State, Fla.App.1971,