At page 107 Determining susceptibility of prosecutorial comments to jury interpretation9 citing cases“It is well settled that a prosecutor may comment on the uncontradicted or uncontroverted nature of the evidence during argument to the jury.”
- Lubin v. State, 963 So. 2d 822 (Fla. 4th DCA 2007).publishedState v. Sheperd, 479 So.2d 106, 107 (Fla.1985) (citing White v. State, 377 So.2d 1149 (Fla.1979)).
- Rodriguez v. State, 753 So. 2d 29 (Fla. 2000).publishedWe also caution that our attempted distinction in State v. Sheperd, 479 So.2d 106, 107 (Fla.1985), between a comment concerning the defense generally as opposed to the defendant individually must likewise be narrowly interpreted, and shoul…
- MacKey v. State, 703 So. 2d 1183 (Fla. 3d DCA 1997).publishedFurthermore, the comment was not improper. "[A] prosecutorial comment in reference to the defense generally as opposed to the defendant cannot be `fairly susceptible' to being interpreted as referring to the defendant's failure to testify.…
- Vincente v. State, 669 So. 2d 1119 (Fla. 3d DCA 1996).publishedWe reject that claim on the authority of State v. Sheperd, 479 So.2d 106, 107 (Fla.1985).
- Green v. State, 654 So. 2d 286 (Fla. 3d DCA 1995).publishedState v. DiGuilio, 491 So.2d 1129 (Fla.1986); State v. Sheperd, 479 So.2d 106, 107 (Fla.1985); Irving v. State, 627 So.2d 92, 94 (Fla. 3d DCA 1993); Gosney v. State, 382 So.2d 838, 839 (Fla. 5th DCA 1980).
- Kirby v. State, 625 So. 2d 51 (Fla. 3d DCA 1993).published I am going to sort of draw the focus back. [Defense counsel] never told you what kind of guy Larry Kirby is." "[A] prosecutorial comment in reference to the defense generally as opposed to the defendant cannot be `fairly susceptible' to be…
- Rosso v. State, 505 So. 2d 611 (Fla. 3d DCA 1987).publishedWhile "[a] prosecutorial comment in reference to the defense generally as opposed to the defendant individually cannot be `fairly susceptible' of being interpreted by the jury as referring to the defendant's failure to testify," State v. S…
- Stancle v. State, 854 So. 2d 228 (Fla. 4th DCA 2003).publishedSee State v. Sheperd, 479 So.2d 106, 107 (Fla.1985); Austin v. State, 700 So.2d 1233, 1234 (Fla. 4th DCA 1997); Whitfield v. State, 479 So.2d 208, 216 (Fla. 4th DCA 1985).
- Ruddock v. State, 763 So. 2d 1103 (Fla. 4th DCA 1999).publishedSee State v. Sheperd, 479 So.2d 106, 107 (Fla.1985).
Other citing cases
- Bland v. State, 563 So. 2d 794 (Fla. 1st DCA 1990).published
- Trujillo v. State, 488 So. 2d 847 (Fla. 3d DCA 1986).published
- Pastor v. State, 498 So. 2d 962 (Fla. 4th DCA 1986).published
v.
Richard Wayne SHEPERD, Respondent.
Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., Miami, for petitioner.
N. Joseph Durant, Sp. Asst. Public Defender of Gelber, Glass and Durant, Miami, for respondent.
ADKINS, Justice.
This cause is before the Court because the decision of the Third District Court of Appeal, Sheperd v. State, 436 So.2d 232 (Fla. 3d DCA 1983), expressly and directly conflicts with prior decisions of this Court, White v. State, 377 So.2d 1149 (Fla. 1979), and Wilson v. State, 436 So.2d 908 (Fla. 1983). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
Pursuant to jury verdict, respondent was adjudged guilty of the crimes of sexual battery, burglary and attempted second-degree murder. In closing argument, the prosecutor made the following comment:
We've heard a lot of allegations with respect to a defense and I must confess to you, when I sat down to prepare my closing remarks, I had a lot of difficulty in trying to figure out exactly what the defense was going to be, because, frankly, for my purpose, I haven't heard any.
Immediately following this comment, defense counsel moved for a mistrial alleging[*107] that the prosecutor improperly commented on the defendant's right not to testify. The trial judge denied the request.
On appeal, the Third District Court of Appeal reversed and remanded for a new trial. The court ruled that the prosecutor's comment was clearly susceptible of being interpreted by the jury as referring to the defendant's failure to testify.
The state argues that the district court failed to apply the proper standard in concluding that the prosecutor's comment referred to the defendant's failure to testify at trial. However, we have recently reiterated our approval of the standard applied by the district court in this instance. The proper test for reviewing alleged comments on the defendant's failure to testify is whether the comments are fairly susceptible of being interpreted by the jury as comments on the failure to testify. State v. Kinchen, No. 64,043 (Fla. Aug. 30, 1985). However, in this instance the prosecutor's comment was not prejudicial under any applicable standard.
The state asserts that the prosecutorial comment in question was merely a comment upon the uncontradicted nature of the evidence and did not constitute prejudicial error. We agree. It is well settled that a prosecutor may comment on the uncontradicted or uncontroverted nature of the evidence during argument to the jury. White v. State, 377 So.2d 1149, 1150 (Fla. 1979).
In White, we affirmed an order denying a motion for mistrial despite the fact that in referring to the testimony of the eye witness in closing argument, the prosecutor remarked "You haven't heard one word of testimony to contradict what she has said, other than the lawyer's argument." 377 So.2d at 1150. In Wilson v. State, 436 So.2d 908 (Fla. 1983), we refused to overturn the convictions and sentences of appellant finding that a comment made by the prosecutor in final argument concerning the appellant's failure to testify was clearly a personal reference to defense counsel himself and not appellant. 436 So.2d at 910.
In order to clarify exactly when a comment is "fairly susceptible" of being interpreted by the jury as referring to the defendant's failure to testify, we hold that a prosecutorial comment in reference to the defense generally as opposed to the defendant individually cannot be "fairly susceptible" of being interpreted by the jury as referring to the defendant's failure to testify.
The comment in this case refers to the absence of a defense, not the defendant's failure to testify.
Accordingly, the decision of the district court of appeal is quashed and the cause is remanded with directions to reinstate the judgment of the trial court.
It is so ordered.
BOYD, C.J., and OVERTON, McDONALD and SHAW, JJ., concur.
EHRLICH, J., concurs in result only.